### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-11-00122- CV

T. L. M., Appellan t

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F WI LLIAM SO N COUNTY , 425 TH JUDICI AL DISTRICT NO. 09- 2488 -F 425, H ONO RAB LE MARK J. SI LVERSTONE, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

A jury found by clea

r an d co n v i ncing evidenc e that T.L .M. (“T” ) eng ag ed in at least one act or omission that is g rounds for termination of her pare ntal rig hts a nd that termination
i s in the children’ s best interests. On appea l, she contends that an appellate court cond u ct i n g a sufficie ncy revie w in a termination case should use a de novo standard instead of the fac tual and leg al sufficie ncy st an d ar d s p rescribed by the Texas Supreme Court. She also asser ts that the eviden ce i s leg ally and fac tually insufficient to support the jury ’s finding s and that the trial court

err ed by admitting hea

rsay evidenc e. We will affir

m the judgme nt.

Stand ard of review f

or suff iciency challenges in parental-rights ter m ination cases A trial court can involuntarily terminat e a pare nt-child rela tionship only if the court finds by clea

r and convincing evidenc e (1) that the par ent has c ommitt ed an act or omission statutorily deeme d to war rant termination and (2) that termination of the re l at i o n s hip is in thechild’s best interest. Tex. Civ. Prac. & Rem. Code Ann. § 161.001 (West Supp. 2011). I f the leg al

sufficie ncy of the evidenc e supporting termination is challeng ed, we consider all of the evidenc e in the light most favor able to the termination finding and deter mine whether a rea sonable trier of fac t could have formed a firm conviction or belief that the finding was true. In re J.F.C. , 96 S.W .3d 256, 266 (Tex. 2002). I f the fac tual sufficie ncy of the evidenc e supporting te rmination is challeng ed, a
court of appea ls must uphold the decr ee if a rea sonable fac t-finder could form a firm conviction or belief from the evidenc e prese nted that g rounds exis t f or termination and that termination is in the best interest of the child. In re C.H. , 89 S.W .3d 17, 25 (Tex. 2002).

T urg es that we depar

t from these established standards and instead make a de novo deter mination of the sufficie ncy of the ev i d en ce supporting the jury ’s termination of her pare ntal rig hts, g iving littl e defe renc e to the jury as finder of fac t. We decline T’s invitation to hold that the standards of revie w pronounce d by the Texa s S u p reme Court fail to satisfy fede ral due proce ss
g uara ntees, and we i n s t ea d defe r to the supreme court’s require ment that we balanc e the competing and complementar y rig hts and interests at issue in these case s. See id. The supreme court has written that, while the pare nt-child rela tionship is of constitutional mag nitude, the pare nt’s rig hts

are not absolute, and the child’s emotional and phy sical interests must not be sacr ificed m er el y
to prese rve the pare nt’s constitutional rig ht to the rela tionship. Id. at 26. By infusing the clea r-andconvincing burden of

proof into the g ener ally

applicable civil sufficienc y standards of revie w, t he
supreme court set a heig htened standard for appellate courts revie wing termination of this important rela tio n s h i p, while reta ining due defe renc e to the jury ’s fac t-finding function and respe cting the leg islature’s choice to not require proof bey ond a rea sonable doubt. Id. at 26-27. Although the
Texas Supreme Court may one day direc tly addre ss whether cer tain fac t scena

rios call for appellate

2courts to conduct a de novo revie w of the finding s supporting termination of a p ar en t -c hild

rela tionship, see id. at 29 (He cht, J ., concur ring ), we are not, as an intermediate court of appea ls,
persua ded to re

ject the we ll-established standar ds of re view on the f acts of this ca se.

Suf fi ciency of the evidence supporting the jury’s te rm ination decision

Under the char g e prese nted at trial, the jury found by clea r and convincing evidenc e
at least one of three statutory g rounds warra n t i n g t er mination and that termination of T’s
pare ntal rig hts was in her children’ s best interests. See Tex. Fam. Code Ann. § 161.001. I n addition
to revie wing the implied best-i n t ere st finding , we will examine whether sufficie nt evidenc e supported the jury ’s implicit finding that T “eng ag ed in conduct or knowing ly place d the children with persons who e ng ag ed in conduct which endang ers the phy sical or emotional wellbeing of the children . . . .” See id. § 161.001(1)( E).

1
T o “endang er” means to expose the child to loss, injury , or dang er. In re M.C. , 917 S.W .2d 268, 269 (Tex. 1996). Although “‘e ndang er’ means more than a threa t of metaphy sical

I f we find one g round supported by sufficie nt evidence , we ne ed not examine the others. 1 See Richardson v. Green , 677 S.W .2d 497, 499 (Tex. 1984) (termination decr ee can stand on one of the statutory g rounds plus be st-interest finding ); see also Tex. R. App. P. 47.1 (opinion shall be as brief as pra cticable while addr essing issues raised a nd nece ssary

to the dispositi on). The trial court also instructed the jury that it could consider whether T “knowing ly place d or knowing ly allowed t he children to rema in in conditions or surrounding s which endang er the phy sical or emotional wellbeing o f t h e chil dren.” See Tex. Fam. Code Ann. § 161.001(1)( D) (West Supp. 2011). The trial court also instructed the jury that it could consider whether “[T] failed to comply with the provisions of a court order that specific ally established the actions nece ssary for the pare nt to obtain the return of the children who have been in perma nent or temporar

y manag ing conser vatorship of the Depa

rtment of Family and Protective Service s for not less than nine months as result of the children’ s remova l from the pare nt under C h ap t er 2 62 for the abuse or neg lect of the childre n.” See id . § 161.001(1)( O). 3injury or the possible ill eff ects of a less-t h an -idea l family environment, it is not nece ssary that the conduct be direc ted at the child or that the child actua lly suffe rs injury .” Id

. The conduct does
not have to occur in the prese nce of the child; it may include conduct befor e the child’s birth and both befor e and after

the child has be en re moved by the Department. Clark v. C lark , 705 S.W .2d 218, 219 (Tex. App.—Dallas 1995, writ dism’d). “Conduct” includes not only acts but omissions

. In re M.J.M

.L. , 31 S.W .3d 347, 351 (Tex. App.

— S an Antonio 2000, pet. denied) ; In re P.S. , 766 S.W .2d 833, 835 (Tex. App.—Houston [1s t Dist.] 1989, no writ).

Conduct that subj ec t s a child to a life of uncer tainty and instabilit y endang ers the child’s phy sical and emotional well-be ing. See In re S.D. , 980 S

. W

. 2 d 758, 763 (Tex. App.—San Antonio 1998, pet. denied)

. A pare nt’s voluntary , delibera te, and conscious course of cri minal conduct, underta ken while knowing his pare ntal rig hts are in jeopar dy , can endang er the child’s emotional well-be ing. Robinso n v. T exas Dep’ t of Protective & Regulatory Servs. , 8 9 S .W.3d 679, 686-87 (Tex. App.—Houston [1st Dist.] 2002, no pet.). “[I ]nt entional criminal activity which expos[ es] the pare nt to incar cer ation is rele vant evidenc e tending to establish a course of conduct endang ering the emotional and phy sical well being of the child.” In re A.W .T. , 61 S.W .3d 87, 89 (Tex. App.—Amarillo 2001, no pet.).

T had three children who are the subject of this case : a boy born in April 2002, a g irl born in J une 2006, and a gi rl b o rn i n April 2008. All three children wer e born in Ohio and lived there until moving to Texas in May 2009. T testified at trial, descr ibing a somewhat chaotic life of financ ial manipulation and emotional abuse inflicted by the fathe r of the y oung er children in Ohio. She twice put the children in temporar y foster car e while living in Ohio—once to avoid leaving them with untrusted family and once at a court’s reque st afte r T hit the oldest child. An Ohio Children’s

4Service s case worke r testified that T’s actions cause d marks and bruises on the boy ’s arm and his ey e.

The children’ s Texas foster mother testified that the boy fea red t h at T might whip him and “g et blood on his behin d aga in.” Be cause the case worke r and the foster mother descr ibed injuries to discrete are as of the boy ’s body , their desc riptions may ref er to diff ere nt incidents. The jury hear d testimony from multipl e witnesses that the children’ s lives rema ined unstable afte r they moved to T exas, pr og ressing from a family member’ s house to va rious shelters and, briefly , to th ei r o wn apar tment befor e being remove d to foster car e. T said they first moved from Ohio to her cousin’s home in Texas in ear ly May 2009, but left afte r a few day s beca use it was

overc rowde d and dominated by the cousin’s verba lly abusive boy friend. They moved to SafePlac e,

a shelter for persons aff

ecte d by sexual a

buse and domestic violence. Acc ording to a witness who

was at SafePlac e, T occa sionally locked the children into her apa rtment without a baby sitter while she went out—sometimes pa st c urfe w. That witness testified that the children bang ed on the door from the inside while T was g one and that T returne d drunk and smelling of marijuana at least once. The witness also testified that T repor ted having “johns” who g ave her money . T and her children

wer e evicted afte r two months at SafePlac e when T co n fr o n t ed a fellow resident and acc used her of stealing T’s purse and its contents. The family moved to a simil ar shelter in Ba strop. T said that, afte r a few day s, she felt the shelter employ ees wer e enfor cing their rules too strictly and, when her

son broke one of the rules , s h e “joki ng ly ” said to her son “g et over here ; I ’m g oing to bash y our head in.” Shelter employ ees re p o rt ed t h at incident t o the Department, and T and her family wer e “exited” from the shelter by the end of J uly

. T then left the children at a third shelter for three wee ks while she sec ured a

place to live. Whil e the children wer e in that shelter, ther e wa s a re port to the

5Depa

rtment of sexual abuse betwee n the children; howeve r, the Depa rtment did not find rea son to believe a buse had oc curr ed.
T called the shelter to deliver the children when she moved into an apar tment o n August 20, 2009, but she did not have any furniture or food in the apar tment when the ch i l d re n

ar ri v ed, prompting a ref err al to the Depa

rtment. When the Depa rtment’s investiga

tor arr i v ed the nex t morning , the children did not appea r to be bathed, g roomed, or dresse d for the day

. The investiga tor did not find food althoug h T testified food was prese nt. The investiga tor l eft to see about obtaining food for the family and source s for other items T wanted. Wit nesses testified that, about an hour later , T beg an leaving a s erie s of demanding rants on voicemail for the i nvestig ator and her supervisor, acc using them of g etting their nails done instead of helpi n g h er. Depa rtment employ ees testified that, in addition to criticizing them, T ref used to let them help her by taking her
to apply for food stamps. Depa rtment witnesses testified that the tone and content of T’s interac tions with the Depa

rtment cre ated conce rn for her mental health and the children’ s safe ty

. Those conce rns prompted the re moval of the c hildren.

The Depa rtment place d the chil d ren in foster car e, set up a Family Service Plan, and established family reunific ation as its g oal. Under the Plan, T had to pay child support, provide written proof that she had g otten a job, maintain a clea n house, submit to a psy cholog ical evalua tion, take an ang er- manag ement class, participa te in protec tive pare nting classes, eng ag e in individual thera py , an d s u b m i t to drug testing. She participa ted i n service s with some succe ss, althoug h her first case worke r testified that T was completing assig ned tasks but not making prog ress toward the
g oals set in the Plan. Over the course of sever al months, T’s visits with the children leng thened from

s u p er v i s ed one-hour visits to unsupervised overnig ht visits. Her case worke r testified that T was
6overw helmed when the v i s i t s s t retched t o two overnig hts. The Department scaled back t he vis its

and hire d a fa

mily thera pist with t he g oal of a g ain incre asing the visit ti me. Af t er h er children wer e remove d in Aug ust 2009, T said she neede d money and soug ht to “manipulate some old g uy ” for financ ial assistance

. She found Robert Chiles on a website called “sug arda ddy forme.c om.” T and Chiles testified that T provided Chiles company and

occa sionally sex and, in return, rec eived about $200 per wee k, clothes, sup p lies, photos, and a $7,000

car . The two g ot eng ag ed in J uly 2010. Chiles testified, howeve r, that T to l d him that she was “tricking ”—eng ag ing in prostitution—wit h other men while they wer e toge ther. On September 25, 2010, Chiles a

nd T had an arg ument that esca lated to mutual de mands for the return of belong ings and eventua lly to a phy sical confr ontation. Chiles and T eac h testified that the other was the
ag g ressor, but it is undisputed that the confr ontation pr og resse d to swinging things at one another

. I t is undisputed that, afte r Chiles pushed T backw ards, T went to the kitchen and returne d swing ing

a knife. Chiles he ld up his ha nds, and T slashed one of his hands deeply

enoug h to c ause blood to spurt as well as lasting nerve and muscle damag e. T was arr ested and jailed. Unce rtainty reg arding the leng th and nature of any punishment or incar cer ation, plus revive d conce rns about T’s stability and the children’ s safe ty , cause d the Depa rtment to canc el T’s visitation and reque st termination of T’s par ental rig hts.

T h e evidence prese nted at trial about T and the children was not unrele ntin gl y
neg ative. Despite the many challeng ing circ umstances that T was not nece ssarily well-e quipped to handle, the children are appar ently healthy and brig ht, notwithstanding some defic its and difficulties that are being addre ssed i n foster care

. T obtained housi ng , and furnished and maintaine d i t even afte r the children wer e remove d. She participa ted in and complete d many of the service s require d

7b y the Plan, albeit without nece ssarily acquir ing the desired skills. By all acc ounts, T an d t h e

children love eac h other a nd miss each other

. On ap p eal, howeve r, we are not to substitut e our judgme nt based on our review o f the written rec ord in place of the finding s of a jury that hear d live testimony and found by clea r and convincing evidenc e that T’s pare ntal rig hts should be terminated. On the whole, the rec ord contains leg ally and fac tually sufficie nt evidenc e for the jury to have formed a firm belief or conviction that
T’s acts or omissions exposed the children to loss, injury , or dang er. There was conflicting evidenc e and evidenc e casting doubt on the cre dibilit y of some witnesses, and—within rea sonable limit s not exceede d here —we must defe r t o the j u ry ’s deter minations of t he credibility of t he witnesses, the weig ht to be g iven the testimony , and the resolution of evidentiar y conflicts. Harris v. Texas Dept. of Family & Protective Servs. , 228 S.W .3d 819, 823 (Tex. App.—Austin 2007, n o p et .) (citing
C ity of Keller v. W

ilson , 168 S.W .3d 802, 807, 821-22 (Tex. 2005)). The jury could rea sonabl y believe tha t T kept the children in dang er in Ohio by repe atedly

allowing contac t with the abusive fa t h er o f the y oung er g irls and, when she broke awa y , putting them into a simil ar environment in
Texas. We note this history not to blame T for her circ umstances, but to show why the jury had sufficie nt evidenc e to form a firm belief or co n v i ction that T’s acts and omissions exposed the children to a

dang erous e nvironment. The evidenc e of the Ohio incidents is not the only evide n ce fr om which the jury could have found a basis for termination. There was evidenc e that T repe atedly found herse lf

overw helmed and demande d that someone else take car e of her children. She and her children wer e further destabilized by their eviction from two shelters desig ned to help people in simil ar crisis situations. There was also evidenc e that she eng ag ed in activities descr ibed as prostitution, despite

8knowing that illega l activity , if discovere d, could jeopar dize her chanc e of reg aining possession of

her children. She showed a tendenc y to rea ct with violence that she later reg retted, hitting her oldest child in such a way that she felt compelled to seek emer gen cy car e and—possibly on a separ ate

occa sion—drawing blood while spanking his buttocks. She also culminated an arg ument with her fianc é by cutting his ha

nd with a knife despite knowing that her be havior wa s being scrutinized to

assess her fitness for the return of her children. Whil e many of these actions taken in isolation might
not war rant termination of T’s pa renta l rig hts, we conc lude that, taken c ollectively , they comprise

a rec ord containing leg ally and fac tually sufficie nt evidenc e on which rea sonable jurors could find by clea r and convincing evidenc e that T’s acts and omissions endang ere d the children’ s emotional and phy sical we ll-being

.

We must also examine whether leg ally and fac tually sufficie nt evidenc e supports the jury ’s finding that termination of T’s pare ntal rig hts is in the children’ s best interests. See Tex. Fam. Code Ann. § 161.001(2). There is a strong presumptio n t h at a ch ild’s best interest is serve d by maintaining the pare nt-child rela tionship. In re L.M. , 104 S.W .3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). Howeve r, even though a pare nt’s rig ht to a rela tionship with a child has constitutional underpinning s, courts will not sacr ifice the child’s emoti onal and phy s i ca l interests
to prese rve that rig ht. See C.H. , 89 S.W .3d at 27

. Prompt and perma nent place ment of the child in

a safe environment is presumed to be in the child’s best interest. See In re M.C.T. , 250 S.W .3d 161,
170 (Tex. App.—For

t Worth 2008, no pet.) (citing Tex. Fam. Code Ann. § 263.307(a) (West 2008)). Much of the evi d en ce that conce rned the g rounds for termination in this case applies to the d et ermination of the children’ s best interests. We see no basis in the rec ord that the i n d i v i d u al children ha d diverg ent intere sts, so we will consider their inter ests collectively

.
9I n Holley v. Adams , t h e T exas Supreme Court provided a nonexclusive list of

nine fa ctors that the trie r of f act may use in a termination ca se to deter mine the best intere st of the child. 544 S.W .2d 367, 371-72 (Tex. 1976). The Holley fac tors are not exhaustive, and there is no require ment that the petitioner prove all fac tors as a condition prec edent t o p ar en t al termination.
C.H. , 89 S.W .3d at 27. Evidence of one fac tor may suffice as support of a finding that termination is in the child’s best interest. See id

. Howeve r, t ermination of the parent-child relationship is not justified when the evidenc e shows mere ly that a pare nt’s failure to provide a more desirable deg ree of car e and support of the child is due solely to misfortune or the l ack of intelligenc e or training , and not to indiffer ence or malice. Clark v. Deare n , 715 S

. W

. 2 d 3 6 4 , 367 (Tex. App.—Houston [1st Dist.] 1986, no writ).

The jury could have appli ed t h e Holley fac tors to the evidence presented at trial as follows:

1. The children’ s desires. The children did not testify , but the foster mother said that the children want to at least visit with T, despite the boy ’s conce rn that T will injure him while spanking him. 2./3. The emotional and phy sic al n eeds of the child now and in the future/The emotional and phy sical dang er to the child now and in the future. The oldest child is descr ibed as very intelligen t an d active. The mi ddle child had educational deficits that she has overc ome while i n fo ster car e. The y oung est child is also repor tedly brig ht and active. The Depa rtment repor

ted that the older children have some emotional proce ssing a

nd control issues.
T h es e chil dren collectively prese nt a challeng e that the jury rea sonably could have found overw helmed T. After taking some classes and thera py , T completed some two-nig ht unsupervised visits but cut one short, sparking conce rn abo u t longe r custody

. The family thera pist testified that T is capa ble of lear

ning to pare nt eff ectively , but would require support. Evidence in the rec ord casts doubt on whether she has such support. Although a member of her churc h testified that she and others would help, the churc h member elec ted not to post bail for T. T has shown a pattern

10of rea cting strong ly and in way s that aff ected t h e s t abil ity of the children’ s living arr ang ements and her fre edom. T injured one o f h er chil dren sever ely enoug h to prompt her to seek emer g ency medical trea tment and to cause t h e ch i l d to express continued wor

ry about re curr ence . The jury could find that the combination of the children’ s needs and T’s challeng es in meeting them prese nt an emotional and phy sical dang er to the c hildren now a nd in the future.
4. Parenta l abilities of the persons seeking custod y . T he rec ord does not clea rly indicate any one seeking custody of the children other than T , althoug h the case work er was hoping to place the children with the boy ’s pater nal g randf

ather

. There is evidenc e that T has the ability to lear n pare nting skills and she testified that she had lear

ned many things throug h the course of t h i s ca s e, but there is also evidenc e that T has repe atedly failed to avail herse lf of resour ces offe red to help her, and that she can lash out when frustra ted, in j u ri ng others, or shut down when overw helmed and se ek someone else to ca re f or her children.
5. Prog rams available to assist these individuals to p ro m o t e t h e best interest of the child. T repor

tedly had exhausted the resour ces ava i l ab l e to her without achie ving sufficie nt pare ntal ca p abilities. There was evidenc e that T sometimes participa ted in prog rams beg rud g ingly and did not fully use available resour ces, often demanding that the State or others provide service s and materia ls that Texas does not customarily p ro vide. There was also evidenc e that T continued to demand those service s and materia ls despite being told that they would not be forthcoming or that she would nee d to take nec essar y steps to qualify

for a ssistance. 6/7. The plans for

the child by

these individuals or by

the ag ency

seeking custody

/ The stability of the home or proposed place ment. Wit nes s es t es t ified that the Depa rtment seeks adoption of the children toge ther and specula ted that such should be possible. The Depa

rtment did not provide any cer tain prospec ts for T’s children, howeve r. Although T had maintained an apar tment since the children wer e remove d, she did not consisten t ly demonstrate an ability to provide a stable home with the children in it eve n when their visits were limited to two day s. 8. The acts o r o m i s s i o n s of the pare nt that may indicate that the exis ting pare nt-child relat i o n s hip is not a proper one. The evidenc e of T injuring the boy when administering punish m ent could weig h into this fac tor, as could the boy ’s repor ted behavior al issues, strug g le with rules, and worry about being injured further by his mother. The la ck of communication between T and the boy during the l ater visits also is troubling, as wer e the former educational defic its of t he mi ddle child. The jury could have also been conce rned by T’s history of leaving the children alone in their apar

tment and, on occa sions when she had a baby sitter, stay ing out well past the ag ree d return time.

119. An y excuse for the acts or omissions of the pare nt. There is ample evidenc e

that T had her own bad experience s with childhood, pare nting, and the foster sy stem. She has emotional, intellectual, and financ ial challeng es. The fathe r of T’s y oung er children was alleg ed l y abusive. She hoped to improve her situation by moving to Texas, but met new challeng es. The jury rea sonably could have conclude d that these fac ts do no t excuse T’s seeming unwillingness or inability to utiliz e the resour ces available to her and provide for the children. The jury could also have had conce rns about T’s violent outbursts, p ar ticularly those that occur red when she had to know the potentially dire conseque nces of the latter for her desire to reg ain custody of her c hildren.

The evidenc e is sufficie nt to support a conclusion that, while T appea rs to love her children, she g ets

o verw helmed when fac ed with the rig ors of supervising three y oung , brig ht, ener g etic chil d re n . When she g ets frustra

ted she has a history of lashing out phy sically or verba lly at both the children and those try ing to help her and the children. Whil e she may have taken some pare nting and ang ermanag ement course s, she did not consistently demonstrate an interest in or ability to implement the skills taug ht. Viewe d throug h the Holley template, the evidenc e in this case is leg ally and fac tually sufficie n t t o s u p p o rt the jury ’s finding by clea r and convincing evidenc e that termination of T’s
pare ntal rig hts is in t he childre n’s best intere sts.

Adm ission of h earsay e vidence

The evidenc e admitted at trial included an unreda cted copy of t h e Fa m i l y Service Plan. T asser

ts that the trial court err ed by admitting hear say evidenc e throug h the unreda cted Plan, permitting the jury to infer that she had comm itted unchar g ed acts of neg lect. See Tex. R. Evid. 801(d), 802-04. T co m p l ai ns about the admission of unattributed statements alleg ing neg lect or abuse that wer e contained in the Family Service Plan’s introductory s ec t i o n entitled “Rea son for Child Protective Service s involvement.” These include statements reg arding (1) a J uly 24, 2009

12repor

t that T threa tened the boy at the Ba strop shelter, (2) Aug ust 6, 2009 repor ts alleg ing neg lectful

s upervision of the children and sexual acting -out by the children, and (3) the Aug u s t 2 1 , 2 0 0 9

re fe rr al alleg ing phy sical neg lect based on the lack of food, furniture , and basic nece ssities in t h e

new apar tment and the fac t that the children had not eate n in a day

. T alleg es that these unattributed
statements found within the Family Service Plan do not f

all within the business-re cords or publicrec ords exception to the hear say ex cl usion rule, rely ing on In re E.A.K. , 192 S.W .3d 133, 142-45 n.17 (Tex. App.—Houston [14t h Dist.] 2006, pet. denied)

.

We revie w the admi s s i o n of evidenc e for an abuse of discretion. E.I. du Pont
Nemours & Co. v. Robinson , 923 S.W .2d 549, 558 (Tex. 1995). The test for abuse o f d i s cr et ion
i s wh et h er the trial court acte d without ref ere nce to any g uiding rules or principles. Dow n er

v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985). We may reve rse the judgme nt

on appea l for the err oneous admission of ev i d en ce o n l y if we conclude that the err or probably

cause d the rendition of an improper judgme nt. See Tex. R. App. P. 44.1. The err oneous admission is harmless if the evidenc e is mere ly cumulative of ev i dence admitted elsewhe re at trial. Nissan Motor Co. Lt d. v. Armstrong , 145 S.W .3d 131, 144 (Tex. 2004).

Even if the trial court er re d by admitting the Plan without reda ction, the three statements about which T complains wer e cumulative of evidenc e admitted elsewhe re in the c ase. Ba strop CPS investiga tor M i ch el l e S al azar testified at trial about both the J uly 24, 2009 repor ts of T’s alleg ed phy sical abuse and threa t to the boy an d t h e Aug ust 6, 2009 repor ts alleg ing
neg lectful supervision of the children and sexual acting -out by the child re n . W i l liamson County
CPS investiga

tor Katie Rey es testified about the alleg ations of neg lect in the Aug ust 21, 2009 repor t.

13The admission of the investiga tors’ testimony cure d any err or whi ch m ay h av e arisen from the

admission of hear say

statements in the unre dacte d Plan.

CONCLUSION
We co n cl u d e that the proper standard of revie w for evidentiar y sufficie ncy is not de novo revie w but the customary standard modifie d by

the clea r-a nd-convinc ing burden of proof
at trial. Using that established standard, we conclude that the rec ord contains leg ally and fac tually sufficie nt evidenc e to support the jury ’s finding that clea r and convincing evidenc e shows that T committed acts or omissions that endang ere d the children’ s phy sical and emotional well-be ing, and that termination of T’s pare ntal rig hts is in the children’s best interests. We furth er conclude that the trial court’s admission of the unreda cted Fa mily Service P l an wa s harmless beca use it was cumulative of othe r evide nce a dmitted at trial. We affirm the judg ment.

J eff Rose, J ustice
Be fore J ustices Pury ear , Rose and Goodwin
Affir med Filed: Apr il 19, 2012

14