TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00889-CV



                                    V. C. and R. S., Appellants

                                                  v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
        NO. D-1-FM-16-006773, HONORABLE TIM SULAK, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellants V.C. and R.S. appeal the district court’s judgment rendered on the jury’s

verdict terminating their parental rights to their child L.S.1 The jury found that Appellants

“knowingly placed or knowingly allowed the child to remain in conditions or surroundings which

endanger the physical or emotional well-being of the child” and “engaged in conduct or knowingly

placed the child with persons who engaged in conduct which endangers the physical or emotional

well-being of the child.” See Tex. Fam. Code § 161.001(b)(1)(D), (E). The jury also found that

termination of Appellants’ parental rights was in the child’s best interest. See id. § 161.001(b)(2).

               On appeal, Mother V.C. challenges the factual and legal sufficiency of the evidence

supporting the jury’s findings on endangerment and best interest and the district court’s denial of her




       1
        We refer to Appellants and the children by their initials or by their relationship to L.S. See
Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8(b)(2).
requested jury instruction. Father R.S.’s court-appointed appellate counsel has filed an Anders brief

concluding that Father’s appeal is wholly frivolous. See Anders v. California, 386 U.S. 738, 744

(1967); Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d 641, 646–47 (Tex.

App.—Austin 2005, pet. denied) (applying Anders procedure in appeal from termination of parental

rights). Having conducted an exacting review of the evidence in its entirety, we will affirm the

district court’s judgment of termination. See In re A.B., 437 S.W.3d 498, 505 (Tex. 2014).


                                         BACKGROUND2

                Eighteen witnesses testified during the two-week jury trial in the underlying case

including Mother, her father, her friends and her expert-witness physicians, a paramedic and hospital

physicians who saw L.C.S., the medical examiner who performed L.C.S.’s autopsy, Texas

Department of Family and Protective Services staff, a Court Appointed Special Advocate (CASA)

supervisor, the foster parents to Mother and Father’s children, a psychologist, and Father.3 The jury

heard that Mother and Father are the unmarried biological parents of twin sons L.S. and L.C.S., who

were born prematurely on March 31, 2015. Mother and Father are also the parents of a daughter

K.S., who was born in 2016. Additionally, Mother has two children—a son D.H.C., born in 2008,

and a daughter H.V.C., born in 2011—from her previous relationship with another man.4




       2
           The facts are summarized from the testimony and exhibits admitted into evidence at trial.
       3
          Father testified briefly at trial, stating his name, age, and length of time living in Austin,
but afterward invoked his Fifth Amendment right against self-incrimination.
       4
        Mother’s children K.S., D.H.C., and H.V.C. were the subjects of separate cases with the
Department and are not involved in this appeal.

                                                   2
               Mother and Father began dating in 2013. She testified that after the twins were born,

she, her four children, and Father lived with her parents. Mother’s two brothers, her niece, and her

brother’s girlfriend also lived in Mother’s parents’ house. Mother was her children’s primary

caregiver. Mother and Father moved out of her parents’ house in early 2017. By the time of trial,

L.S. was 2½ years old, and he and his sister K.S. were living with foster parents; D.H.C. and H.V.C.

were living with their biological father; L.C.S. was deceased; and Father was incarcerated on charges

related to L.C.S.’s death.


L.C.S.’s 2015 injury, hospitalization, and placement in foster care

               The events leading to the Department’s first removal of Mother’s children from her

care occurred on September 30, 2015. On that day, Mother was in her room in her parents’ home

with the twins, and Father was in the children’s room. Mother took L.C.S. to Father and told him

to watch L.C.S. while she cleaned the other room. Mother placed L.C.S. face down on the bed and

gave him his dinosaur toy, a stuffed animal. Five to ten minutes later, she heard Father screaming

that something was wrong with L.C.S. Mother ran to the room where she saw Father carrying

L.C.S., who was “turning different colors and shaking.” Mother then ran back to the other room to

get her phone and called 911.

               Father’s recollection of that day’s events is documented in hospital records that were

admitted into evidence and contain his statements to L.C.S.’s health care providers. In those records,

Father stated that Mother was cleaning a room while he was on his mobile phone and that he left that

room to go into an adjacent bedroom to continue working on his phone. Father stated that after

about five minutes alone in the room, Mother brought L.C.S. into the room and placed L.C.S. on the

                                                  3
bed. Father said that he was sitting on the floor next to the bed and that he looked up and saw L.C.S.

on his back, and then turned over on his stomach, playing with a stuffed toy. Shortly afterward,

Father heard L.C.S. make a “weird sound” and saw that L.C.S.’s “entire face turned purple and

blue.” Father recalled that he stood up, scooped L.C.S. into his arms, and started “tapping” L.C.S.

on his back. Father had L.C.S. positioned across one of his forearms and facing down while Father

“tapped” L.C.S. with his other hand. Father stated that he then turned L.C.S. face up and saw

L.C.S.’s whole body trembling, and L.C.S. scratching at his own head and face. Father stated that

he took L.C.S.’s hands away from his face, and that L.C.S. then began to go limp·and close his eyes.

Father then called for his wife and walked to the hallway between the two bedrooms, where he met

Mother and instructed her to call 911.

                The jury heard a recording of Mother’s 911 call. In the first two minutes of the

recording, Mother states that her six-month-old baby is not responding, that he is having trouble

breathing, and that “he’s like bleeding, I don’t know from where.” The 911 operator asked Mother,

“Did he choke on something?” and Mother responded, “No.” Four minutes into the call, the staffer

proceeds to give Mother directions for checking inside the baby’s mouth for food or vomit. Mother

checks and states that there is none, but that there is blood inside his mouth. During trial, Mother

initially testified that she did not remember saying that L.C.S. had blood in his mouth. She later

testified that she did see blood, but only after the 911 operator asked her to clear L.C.S.’s throat.

She further testified that she opened L.C.S.’s mouth and put her finger inside it “because he

was choking.”




                                                  4
                Records from the paramedics who assisted L.C.S. noted several injuries in different

stages of healing—fresh bruising to L.C.S.’s left cheek with swelling, bruising to both his ears and

behind his left ear, an older abrasion to the outer ear canal of his right ear, an older contusion with

abrasion on his left forehead, a new abrasion to his right eyelid, a new abrasion to bridge of his nose,

and bleeding to his upper lip—leading the paramedics to believe that L.C.S. suffered a physical

assault. The paramedics transported L.C.S. to Dell Children’s Medical Center, contacted Child

Protective Services and the sheriff’s office, and provided a detective with a witness statement.

                According to medical records from Dell, Father told health care providers that L.C.S.

injured himself by hitting his head “repeatedly” on a dinosaur toy. Father described L.C.S. as being

“strong willed” and stated that L.C.S.’s most frustrating behavior is that he “has to be held to fall

asleep.” Mother told health care providers that Father had been job hunting on his phone when she

asked him to watch L.C.S. Mother also told health care providers that she noticed bleeding in

L.C.S.’s right ear “about 3 days ago.” She denied having any problems or complications with

L.C.S.’s birth or pregnancy. The medical records reflect that L.C.S. had no history of seizures and

no history of trauma “except dropped toy on face.” L.C.S.’s health care providers noted that his

head showed evidence of trauma and that he had multiple facial abrasions and bruises. Ultimately,

doctors diagnosed L.C.S. with seizures, a subdural hematoma—described by medical-expert

testimony as bleeding between the skull and brain, and retinal hemorrhaging—described by

medical-expert testimony as bleeding of the blood vessels in the retina at the back of the eye. Dr.

Marion Forbes, who saw L.C.S. at Dell, testified that when a baby has a forceful acceleration-

deceleration-type force applied to the head, blood vessels on the outside surface of the brain tear



                                                   5
easily and bleed. She stated that children who sustain these acceleration-deceleration forces causing

subdural hematomas and retinal hemorrhages “become symptomatic and develop ill signs

immediately.” Doctors who treated L.C.S. concluded that what happened to him was “[m]ost likely

non-accidental trauma,” and medical records reflect that L.C.S.’s “[p]arents have been told that

injuries are due to trauma.” Mother testified specifically that “a doctor came to me and told me that

[L.C.S.] was suffering from shaken baby syndrome.” Both Mother and Father denied any shaking

episodes or any other seizure-like activity before this event.

               After L.C.S. was discharged from the hospital in October 2015, the district court

granted the Department temporary managing conservatorship of L.C.S. and L.S.; finding that their

physical health or safety was in immediate danger. L.C.S. and L.S. were removed from Mother and

Father and placed with foster parents, Jonathan Paul Turner and Gayla Turner. Mother’s two older

children D.H.C. and H.V.C. were placed with their biological father.

       Less than a week after L.C.S. was discharged from Dell, L.C.S. was readmitted for

examination after the Turners noticed that any movement or change in altitude of L.C.S.’s head

caused him to cry. Doctors found more fluid between L.C.S.’s brain and skull, and a shunt was

placed in his skull for one year to drain the fluid and relieve pressure around his brain. During this

time, L.C.S. was prescribed and then weaned from anti-seizure medication. L.C.S. did not have any

seizures, even after his medication was discontinued, and he had no other hospitalizations during the

seventeen months that he was in the Turners’ care.




                                                  6
Temporary orders and home study after L.C.S. and L.S.’s removal

                On October 30, 2015, the district court signed temporary orders allowing Mother and

Father to have supervised visitation with L.C.S. and L.S. and requiring Mother and Father to

complete services. The court also ordered that all parties be provided with “the home study for

maternal grandmother.”

                A home study on the maternal grandparents was admitted into evidence. Although

Mother and Father agreed to move out of the house if the grandparents were approved as a placement

option, the grandparents were not approved. The home study identified several concerns, including:

(1) the grandparents’ denial that Mother or Father could have injured L.C.S., despite knowing that

doctors found L.C.S. suffered trauma “as if he had been shaken”; (2) the grandparents’ lack of valid

driver’s licenses; and (3) the criminal history of their son M.C., a frequent visitor to their home, who

had arrests for alcohol intoxication and drug possession. In the home study, the grandparents’ other

son G.C., who lived with them, denied that he was ever a perpetrator of abuse.

                However, at a mediation conducted in 2016, the Department learned that in 2011,

when G.C. was eleven-and-a-half years old, he sexually abused Mother’s two-year-old son in the

grandparents’ home. At trial, Mother testified that she witnessed G.C. performing oral sex on

D.H.C. The grandparents and Mother were aware of the sexual abuse perpetrated by G.C. but failed

to disclose it. Mother stated that she did not call the police, and that she did not tell Father about the

abuse because she feared that he might think differently about her brother. Mother also stated that

she avoided her brother for about a year and a half, but she admitted that she and her children moved

back into her parents’ home while her brother was still living there. Further, according to notes from



                                                    7
the staff supervising Mother’s visitation, Mother requested that the Department add her brother to

her visits with L.C.S. and L.S. because she wanted him to see his nephews. At trial, Mother denied

making that request. But in a later report to the court, issued after Mother had some unsupervised

visits, the Department specified that it “informed [Mother] that her brother is not allowed to be near

her children during unsupervised visits.” The report states that Mother’s children are not in the

grandparents’ house where Mother and Father reside, noting that “[t]here is too much risk bringing

the children back in a home with a juvenile sex offender.”


L.C.S.’s 2017 injury and death

               By March 28, 2017, Mother and Father had their own home and the court signed an

order for the monitored return of L.C.S. and L.S. from the Turners to Mother and Father. The order,

which was admitted into evidence, extended the dismissal date for the case and kept the Department

as managing conservator of L.C.S. and L.S. The CASA supervisor assigned to L.C.S. and L.S.’s

case, Rushmi Karim-Paris, testified that the case was near the end of an eighteen-month deadline,

requiring either a dismissal, a trial to terminate parental rights, or the return and monitoring of the

children. Karim-Paris stated that although CASA was still concerned about the lack of explanation

for L.C.S.’s 2015 injuries and expressed that concern to all the parties, Mother and Father had “done

a series of services,” and the return-and-monitoring phase would extend the case and allow for

continued supervision. She explained, “[W]e and the other child advocates and the court would stay

involved for hopefully up to another six more months, and that would give us a chance to

keep . . . our eyes on the children and on the parents.” Department caseworker Jordan Ayres visited

L.C.S. and L.S. in Mother and Father’s home weekly during the monitored-return period.

                                                  8
               Mother noticed that L.C.S. cried more than L.S. Mother also noticed bruises on

L.C.S.’s stomach “a lot” and saw blood in his stool, but she did not tell Ayres what she had seen.

Ayres testified that if Mother had mentioned L.C.S.’s bruises and the blood, Ayres would have been

concerned and would have encouraged Mother to seek immediate attention for L.C.S. Ayres stated

that after the events of September 2015, she would have expected Mother to express some

understanding or willingness to inquire more about a medical issue with L.C.S. Ayres acknowledged

that a caseworker cannot be in a home every minute of every day and that she thought Mother

“ignored signs that something might be going on.” Most of the time when Ayres visited Mother’s

and Father’s home during the monitored-return period, Mother was the only parent there. Ayres

testified that during that time, she saw Father in the house only once, and “he was on his computer

with his headphones on and didn’t interact with me or the boys.”

               On May 24, 2017, less than two months after L.C.S. returned to Mother and Father’s

home, L.C.S. again sustained serious injuries while in Father’s care. Mother told a Department

caseworker that Father did not go to work that morning because he had missed his ride. Mother

testified that she left Father with the children at home while she went to the grocery store. As she

was leaving the house, L.C.S. followed her to the garage crying because he wanted her to take him

along or because he did not want her to go. Mother stated that when she left, Father was

bottle-feeding their infant daughter K.S. Father was the only person in the home with the children.

               Mother stated that she was in the grocery store checkout line when Father called,

asking her to call 911. Recordings of Mother’s two calls to 911 were admitted into evidence. In the

first one, Mother states that she is leaving the grocery store and requests that an ambulance be sent



                                                 9
to her house because her husband called and said that her son is having trouble breathing. The 911

operator asks for Father’s phone number, which Mother provides, noting that Father only speaks

Spanish.5 The operator states that she is going to call him and that she will have a Spanish

interpreter on the phone.6 The second call occurred as Mother was arriving at her house and entering

it. Mother testified that when she arrived, she saw that L.C.S. was not wearing any clothes, was not

breathing, and his eyes were open without moving. On the 911 recording, Mother is heard screaming

and a male voice responds briefly to her. Mother tells the 911 operator that she does not see her son

breathing and that he has “a lot of saliva from his nose and his mouth.” Seconds later, Mother states

that the paramedics have arrived.

                 According to a report from paramedic Matthew Daves, L.C.S. was on the couch,

unconscious, unresponsive, pulseless, and showing “cyanosis” of his head and extremities. Daves

testified that cyanosis is a visual sign that “there’s an issue with oxygenation, either . . . a respiratory

issue or the heart is not pumping. Your extremities, and especially in children, around the mouth

and lips will turn blue and that’s from the lack of oxygen.” Daves acknowledged that with a lack

of circulation there is a delay in the development of bruising. He testified that L.C.S. had been

without circulation for almost thirty minutes before his circulation returned. Daves’s report noted

that L.C.S.’s neck had “horizontal marks and circular patterns (almost dirt color in nature)

        5
          Mother testified that she may have given conflicting statements in this case due to difficulty
in translation because Spanish is her first language. She had Father’s interpreter assist her as needed
at trial. However, medical records show that her preferred language is English, the jury heard her
conversations with 911 in English, she spoke with a bilingual Department caseworker only in
English, and her counsel informed the court she would have limited need for the interpreter because,
“Your Honor, my client speaks English very well.”
        6
            No recording of the call to Father from 911 was admitted into evidence.

                                                    10
around and above the larynx.” Paramedics suctioned L.C.S.’s airway multiple times to remove

“peanut-buttery-type vomit,” performed cardiopulmonary resuscitation, and after L.C.S.’s

pulse returned, transported him to the pediatric emergency room at St. David’s North Austin

Medical Center.

               A few hours later, after diagnosing L.C.S. with cardiorespiratory arrest and a subdural

hematoma that was “most likely nonaccidental,” the St. David’s staff had L.C.S. airlifted to Dell

Children’s Medical Center for evaluation in the pediatric intensive care unit. L.C.S. was diagnosed

with multiple injuries, including: anoxic brain injury—described by medical-expert testimony as an

absence of oxygen to the brain—revealed by diagnostic tests showing brain swelling and damage to

brain cells; subdural hematomas; retinal hemorrhages; bruising and abrasions to the right side of his

chest; bruises on his lower back; lung contusions; liver lacerations; a duodenum/small intestine

hematoma; an adrenal gland hematoma; and new and healing rib fractures. Further diagnostic tests

showed that L.C.S. had no brain activity, and he was pronounced dead on May 25, 2017.

               Travis County Deputy Medical Examiner Dr. Leisha Wood performed an autopsy on

L.C.S. In addition to the injuries that doctors had previously noted, Dr. Wood found others including

a fracture of the skull due to brain swelling, neck muscle and ligament hemorrhages, and two large

bruises under L.C.S.’s scalp along with several smaller bruises to his head that were not visible until

after his hair was shaved. Dr. Wood issued a report concluding that the cause of L.C.S.’s death was

blunt force injuries and that the manner of his death was a homicide.

               Father shared his recollection of that day’s events with Dr. Forbes, who saw L.C.S.

at Dell. He stated that while Mother was gone, L.C.S. came running to him holding his belly,



                                                  11
vomited, and then collapsed. Father said that he then called Mother stating that L.C.S. seemed to

be choking and not breathing properly and that she should come home. Dr. Forbes testified that

Father’s account of events did not explain L.C.S.’s injuries because “running and falling could not

begin to create the injuries that he sustained. In no way is that possible.” Father also told Dr. Forbes

that he thought L.C.S. had been playing with a can of Hot Shot bug spray beforehand. But Dr. Wood

testified that she conducted toxicology tests as part of her autopsy and that there was no indication

that L.C.S. died from bug spray poisoning. She further testified that “his esophagus was not necrotic,

so no indication that he ingested any kind of acidic or caustic substance.” Father also spoke about

the incident with CPS investigator Gina Torres, who testified that he “did disclose to a certain degree

what happened. And then toward the latter part of the conversation, he had requested a lawyer and

then said it was because of what happened in the last case.” Father told her he was apprehensive

about contacting 911 himself and did not do so “because of what happened in the last case.”

                Doctors asked Mother what happened to L.C.S., and she responded that she did not

know because she was not home. She suggested that several of L.C.S.’s injuries were due to his fall

from a plastic slide at a playground the week before, when he may have hit his head. Mother told

caseworker Torres that L.C.S. hit his head on a slide causing a bruise on the side of his face. Mother

told caseworker Ayres that L.C.S. “fell sideways” from a slide causing bruising to his stomach.

Ayres testified that Mother later told the Department that L.C.S. died from an organic brain disease,

a fever, or choking on a peanut butter sandwich. Mother also suggested that the Turners could have

abused L.C.S. She testified, “The only thing that I know[,] what the doctor testified[,] is that

[L.C.S.] had some broken ribs that were between six and eight weeks old. And that could have



                                                  12
happened when he was with . . . the foster parents or when the paramedics or Dell Children’s

performed CPR.” After the Department’s counsel pointed out that healing rib fractures between six

and eight weeks old could not have been caused by EMS or Dell, Mother acknowledged that the

Turners would not have been responsible for “[t]he recent ones, the fresh ones, no. But the old ones

that were six to eight weeks, they were.” Next, the Department’s counsel noted that if the fractures

were at the most eight weeks old, there were only two days during that eight-week period when

L.C.S. was with the Turners. Mother said, “I don’t know if it was only two days that he was

with [them].”


Mother’s protectiveness of Father

                Mother testified that she never asked Father what happened to L.C.S.            She

acknowledged that it seemed strange that none of L.C.S.’s problems started until after she left him

alone with Father. She also stated, according to caseworker Torres, that there were times when

Father would get frustrated with the children and that he would come home from work upset and

“screaming.” Mother’s two older children D.H.C. and H.V.C. were interviewed at the Center for

Child Protection and described Father as “mean and scary.” But Mother testified that those

statements were the result of D.H.C. and H.V.C. being “manipulated.”

                Mother admitted that at a prior hearing, she said she did not want Father near her

children. When asked why she would say that if she did not think that he hurt her child, Mother

testified, “At the time that happened—well, I didn’t—I didn’t know anything.” Mother also told her

therapist Yolanda Moreno that if L.C.S.’s autopsy showed “that it is shaken baby syndrome,” Mother

would end her relationship with Father. However, the jury heard Mother testify about how she

                                                13
trusted Father with her children, even after L.C.S.’s injuries in 2015, his death in 2017, and the

findings in the autopsy report. Mother testified that Father is a good caregiver for the children, that

he can safely care for them, and if his parental rights were terminated, she thought he might still be

able to have supervised visitation. Mother maintained frequent contact with Father during his

incarceration on charges related to L.C.S.’s death. Jail records show that Mother had over 500 phone

calls with Father in less than five months, and she testified that she sent money to him and visited

him. Mother also had D.H.C. and H.V.C., who are not Father’s children, speak with Father by

phone. Caseworker Ayres testified that she listened to the call and that it did not appear as though

the children willingly participated in the conversation.


Mother’s expert-witness physicians

               1. Dr. Joseph Scheller

               Mother’s two expert-witness physicians testified that L.C.S.’s injuries were not

trauma related. Pediatric neurologist Dr. Joseph Scheller testified that “[t]he number one cause of

subdural hematoma in the whole world is getting hit on the head by something” and that “[h]ead

trauma doesn’t come from natural disease.” He agreed that—as Dr. Wood concluded—a severe

impact could cause a person’s brain swelling, could stop his breathing, and then result in his death.

But he said, “The only thing that is preventing me from saying that is I don’t see the trauma.”

Specifically, Dr. Scheller testified that L.C.S. had no scalp or skull injury, which “very strongly

argues against” a serious impact to his head. Nevertheless, Dr. Scheller testified that it was

possible—as Dr. Wood stated in her autopsy report—that L.C.S. had external bruising to his head




                                                  14
that was not visible when he had a full head of hair, and that such bruising could have been missed

by emergency medical staff and hospital staff.

               Dr. Scheller also testified that he did not believe that a rapid acceleration-deceleration

injury could cause the types of injuries that L.C.S. sustained. Dr. Scheller acknowledged that his

rejection of rapid acceleration-deceleration as causation for such injuries is a view that is shared by

only five percent of the relevant medical professionals and that puts him at odds with the views of

organizations such as the American Academy of Pediatrics, the World Health Organization, the

American Academy of Opthalmology, the American Association for Pediatric Ophthalmology, the

American College of Radiology, the American Academy of Family Physicians, the American

College of Surgeons, the American Association of Neurological Surgeons, the Pediatric Orthopedic

Society of North America, the American College of Emergency Physicians, and the American

Academy of Neurology.

               When Dr. Scheller was asked about testimony he gave in another case—in which he

stated that he would expect to see a child have physical injuries such as skull fractures, brain

bruising, and neck injuries in order to be able to find shaken baby syndrome—Dr. Scheller said that

“sounds like something I would say.” Dr. Scheller had no theory on what may have caused L.C.S.’s

neck ligament injuries and subscalp contusions as described in Dr. Wood’s autopsy report. His

opinion was that L.C.S. had a brain irritant of blood drops, a piece of his shunt, or brain scarring,

which presented a persistent risk of seizures and caused the 2015 and 2017 incidents. He further

opined that L.C.S.’s retinal hemorrhages were due to “a circulation problem of [L.C.S.]’s brain that

indirectly affected the eye circulation.” Dr. Scheller testified that he knew that L.C.S. had several



                                                  15
healing rib fractures, but that fact did not figure into his opinion in this case, and Dr. Scheller stated

that he would not find it strange if a parent was unable to explain how a child had sustained multiple

broken ribs. But ultimately, Dr. Scheller agreed that if he were the primary care provider for a child

who presented with a subdural hematoma, bilateral ear bruising, bilateral retinal hemorrhages, and

a facial bruise—as L.C.S. had in 2015—he would contact Child Protective Services. Dr. Scheller

similarly testified that if a child came into his practice with subdural hematomas, anoxic brain injury,

healing rib fractures, bruises, and an adrenal gland laceration—as L.C.S. had in 2017—he would

contact Child Protective Services.


                2. Dr. Charles Minor Harvey

                Mother’s other expert-witness physician was forensic pathologist Dr. Charles Minor

Harvey. Dr. Harvey acknowledged that he could not state accurately when he had last performed

an autopsy on a child, but he testified that he had not performed any autopsies in over twelve years.

                Dr. Harvey attributed L.C.S.’s injuries to various medical conditions. One was

Waterhouse-Friderichsen Syndrome, which Dr. Harvey stated is almost always associated with

bacterial meningitis—a condition that Dr. Scheller had already testified that L.C.S. did not have.

Dr. Harvey stated that the Syndrome occurs through disseminated intravascular coagulation (DIC),

which makes the blood unable to clot. Another condition Dr. Harvey stated that L.C.S. had was

Ormond’s Disease, or retroperitoneal fibrosis, a rare diagnosis reported in only twenty-four children

worldwide, and which Dr. Harvey saw only once in an elderly female patient. Dr. Harvey was

unable to state the cause of that condition in this case. Dr. Harvey also testified that L.C.S. had

reperfusion syndrome, which Dr. Harvey described as the reestablishment of a heartbeat and blood

                                                   16
pressure in blood vessels following a period of no heartbeat and no blood pressure. Dr. Harvey also

referred generally to another condition, Grey Turner’s Sign, as causing a gray discoloration of the

skin that could be confused with bruising and could show up anywhere on the body. Dr. Harvey

noted that this condition is associated with acute pancreatitis. But no one ever diagnosed L.C.S. with

acute pancreatitis. Ultimately, Dr. Harvey opined that L.C.S. choked on aspiration of food and had

three synergystic conditions of: (1) oxygen deprivation leading to brain death; (2) DIC that made his

blood unable to clot; and (3) reperfusion syndrome. These conditions weakened L.C.S.’s blood

vessels, causing brain swelling and bleeding from many different sites. Dr. Harvey did not address

the cause of L.C.S.’s healing rib fractures.

                At the conclusion of the trial, the jury returned its verdict terminating Mother’s and

Father’s parental rights to L.S., and the district court rendered judgment on that verdict. Mother filed

a motion for judgment notwithstanding the verdict that was denied after a hearing, and a motion for

new trial that was denied by operation of law. This appeal followed.


                                           DISCUSSION

                I. Mother’s appeal

                In her first two issues, Mother challenges the factual and legal sufficiency of the

evidence supporting the jury’s findings on endangerment and best interest. See Tex. Fam. Code

§ 161.001(b)(1)(D), (E), (2). In a proceeding to terminate the parent-child relationship, the petitioner

must establish by clear and convincing evidence a predicate violation—i.e., that the parent’s acts or

omissions constitute a ground for termination under section 161.001(b)(1)—and that termination of

parental rights is in the child’s best interest. Id. § 161.001(b)(1), (2); In re S.M.R., 434 S.W.3d 576,

                                                  17
580 (Tex. 2014).       Only one statutory ground is necessary to support a judgment in a

parental-rights-termination case. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003); Spurck v. Texas

Dep’t of Family & Protective Servs., 396 S.W.3d 205, 221 (Tex. App.—Austin 2013, no pet.).

Accordingly, when multiple statutory grounds for termination are alleged and the trial court

issues a broad-form question asking the jury whether the parent-child relationship should be

terminated, we must uphold the jury’s finding if any of the statutory grounds alleged supports it.

Spurck, 396 S.W.3d at 221.

                “The purpose of terminating parental rights . . . is not to punish parents or deter

their ‘bad’ conduct, but rather to protect the interests of the child.” In re A.B., 437 S.W.3d at 504.

We evaluate the legal sufficiency of the evidence in parental-rights termination cases by reviewing

all the evidence in the light most favorable to the finding to determine whether a reasonable

factfinder could have formed a firm belief or conviction that the challenged finding was true. In re

J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). We must assume that the factfinder resolved disputed

facts in favor of its finding if a reasonable factfinder could do so, and we disregard all evidence that

a reasonable factfinder could have disbelieved or found incredible. Id.

                We evaluate the factual sufficiency of the evidence by reviewing the entire record,

and we uphold the finding unless the disputed evidence that could not reasonably have been credited

in favor of the finding is so significant that a reasonable factfinder could not have formed a firm

belief or conviction that the allegation was true. In re A.B., 437 S.W.3d at 502–03. We do not

weigh witness credibility issues that depend on appearance and demeanor, and when credibility

issues are reflected in the record, we must defer to the factfinder’s determinations if they are not



                                                  18
unreasonable. In re J.P.B., 180 S.W.3d at 573; see In re A.B., 437 S.W.3d at 503 (directing appellate

courts to give “due deference to the decisions of the factfinder, who, having full opportunity to

observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor

of witnesses”).


Sufficient evidence supports jury’s finding that Mother endangered L.S.

                  In her first issue, Mother challenges the factual and legal sufficiency of the jury’s

finding that she endangered L.S. “Endanger,” as used in this statute, means “to expose a child to loss

or injury or to jeopardize a child’s emotional or physical health.” In re M.C., 917 S.W.2d 268, 269

(Tex. 1996). While “endanger” means more than a threat of metaphysical injury or the possible ill

effects of a less-than-ideal environment, the endangering conduct need not be directed at the

child—here, L.S.—and the child need not actually suffer injury. See In re E.N.C., 384 S.W.3d 796,

805 (Tex. 2012) (citing Texas Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987)).

                  Subsections D and E of the termination statute address endangerment. Tex. Fam.

Code § 161.001(b)(1)(D), (E). Under subsection D, a jury may terminate the parent-child

relationship if the jury finds by clear and convincing evidence that the parent has “knowingly placed

or knowingly allowed the child to remain in conditions or surroundings which endanger the physical

or emotional well-being of the child.” See id. § 161.001(b)(1)(D). Subsection D addresses the

child’s living environment, rather than the parent’s conduct, although a parent’s conduct is relevant

to the child’s environment. In re J.D., 436 S.W.3d 105, 114 (Tex. App.—Houston [14th Dist.] 2014,

no pet.). The parent need not have certain knowledge that an actual injury is occurring, but the

parent must at least be aware of the potential for danger to the child in such an environment and must

                                                   19
have disregarded that risk. Id. Under subsection E, a jury may terminate the parent-child

relationship if the jury finds by clear and convincing evidence that the parent has “engaged in

conduct or knowingly placed the child with persons who engaged in conduct which endangers the

physical or emotional well-being of the child.” See Tex. Fam. Code § 161.001(b)(1)(E). Subsection

E requires that the cause of the endangerment be the direct result of the parent’s conduct—including

acts, omissions, and failures to act—and the requirements of this subsection may be satisfied by

showing that the parent engaged in a course of conduct that endangered the child’s physical or

emotional well-being. In re J.D., 436 S.W.3d at 114. Because the evidence of endangerment under

subsections D and E is interrelated, we may conduct a consolidated review. Id.

               Here, when making a predicate finding of endangerment, the jury could have credited

the evidence showing Mother’s repeated lack of protectiveness toward L.S. and his siblings, both

before and after they were removed from Mother’s care. See In re D.J.W., 394 S.W.3d 210, 220

(Tex. App.—Houston [1st Dist.] 2012, pet. denied) (concluding that parental conduct occurring

before and after child has been removed by Department may be considered in determining whether

termination is justified); Cervantes-Peterson v. Texas Dep’t of Family & Protective Servs.,

221 S.W.3d 244, 253 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (stating that manner in which

parent treats other children in family may be considered in deciding whether parent engaged in

course of conduct that endangered child’s physical or emotional well-being). Placement with

an abusive relative or parent is endangerment under either provision of the statute. In re B.R.,

Nos. 01-13-00023 & 01-13-00024-CV, 2013 Tex. App. LEXIS 7694, at *14, *19 (Tex.

App.—Houston [1st Dist.] June 25, 2013, no pet.) (mem. op.) (concluding that abuse one sibling



                                                20
suffered while in his mother’s care was sufficient to support termination of her parental rights to

another sibling); see Tex. Fam. Code § 161.001(b)(1)(D), (E).

               Between 2011 and 2017, two of Mother’s sons were abused by two different people.

The jury heard that Mother was an eyewitness to her brother G.C. performing oral sex on her

two-year old son D.H.C. Mother chose to protect her brother instead of her son by refusing to report

the abuse to police or CPS. Mother later moved all of her children—including her newborns L.C.S.

and L.S. and her son who had previously been abused—into her parents’ home where her brother

still lived. Mother stated that she did not tell Father about the abuse because she did not want him

to think differently about her brother. When the children were subsequently removed from Mother’s

and Father’s care in 2015 and a home study was conducted to evaluate the safety of the children’s

placement, Mother (and her parents and G.C.) again failed to report the sexual abuse that occurred

in that home, where the perpetrator continued to reside. Moreover, Mother stated her intention to

move out if the home study was approved, which would have left her children in the house without

her but with her brother. Also in 2015, Mother stated that she wanted her brother to see his

nephews, and she asked the Department to add her brother to her visits with L.C.S. and L.S.

Caseworker Ayres testified that the Department remained concerned that in the future, Mother might

not be able to prevent harm to her children if her brother came into contact with the children.

               The jury also heard that Mother chose to protect Father instead of her son by never

asking him what happened to L.C.S. Caseworker Ayres testified that it was as though Mother “has

kind of blinders on.” L.C.S. had not learned to speak words, and he was seriously harmed in 2015

when he was left in Father’s sole care. Mother testified that a doctor told her L.C.S. “was suffering



                                                 21
from shaken baby syndrome.” She was also told that L.C.S.’s injuries were due to trauma, and

doctors opined that what happened to him was non-accidental. See In re A.B., 437 S.W.3d at 506

(noting that evidence supporting termination included medical testimony that child’s injuries were

not type that child would sustain accidentally). Mother specifically recalled seeing bleeding in

L.C.S.’s right ear about three days before his hospitalization. Further, she admitted that it seemed

strange that none of L.C.S.’s problems started until after she left him alone with Father. Once away

from Father and with the Turners, L.C.S. had no seizures and no injuries requiring hospitalization.

See J.F. v. Texas Dep’t of Family & Protective Servs., No. 03-16-00593-CV, 2016 Tex. App. LEXIS

13564, at *26 (Tex. App.—Austin Dec. 22, 2016, no pet.) (noting that strong circumstantial evidence

supported finding that father was perpetrator of his children’s injuries); In re B.R., 2013 Tex. App.

LEXIS 7694, at *16. Mother told a caseworker that she had seen Father become upset and frustrated

with the children and come home screaming. Mother was also aware that her older children D.H.C.

and H.V.C. had described Father as “mean and scary.” But Mother refused to consider that Father

could have any fault for what happened when he was left to care for L.C.S.

               Additionally, Mother knew that the monitored return of her children after the 2015

hospitalization did not mean that concerns about L.C.S.’s abuse had been ruled out. Mother knew

that the case had not been dismissed and that a caseworker would be visiting weekly. The trial

court’s monitored-return order contained no best-interest finding in favor of Mother or Father, but

only the court’s rulings that the Department retained its temporary managing conservatorship of the

children, that the Department would monitor the safety of the children’s placement, and that the case

would be extended for six months. Meanwhile, Mother noticed bruises on L.C.S.’s stomach “a lot,”



                                                 22
and she saw blood in his stool. She also noticed that L.C.S. cried more than L.S. But she never

mentioned these observations to the caseworker assigned to L.C.S. and L.S. during the monitored-

return period. The Department expected Mother to be protective of her children after the severity

of the injuries that L.C.S. suffered in 2015 and because a caseworker cannot be present in a home

with the frequency of a parent. The caseworker for L.C.S. and L.S. stated that she was unsure

whether Mother had the ability to recognize if one of her other children was being injured or if

Mother could prevent further injuries to her children.

               Evidence from L.C.S.’s final hospitalization in 2017 showed that among his many

injuries, he had healing rib fractures indicating that he was injured more than once in the preceding

weeks. A child’s unexplained, non-accidental fractures of various ages support a reasonable

inference that the child’s caregivers knew of the injuries and their cause, and supports termination

under subsection D. In re L.M.M., 522 S.W.3d 34, 45 (Tex. App.—Houston [1st Dist.] 2017, pet.

denied); In re J.D., 436 S.W.3d at 114. After hearing the evidence at trial, Mother still thought that

Father might have some visitation with her children, even if his parental rights were terminated.

Mother has maintained her relationship with Father during his incarceration through hundreds of

phone calls, visiting him, and sending money to him. Mother has also encouraged D.H.C. and

H.V.C. to have phone contact with him, even though he is not their father and he has been indicted

for their half-brother’s murder. Based on what she had seen, caseworker Ayres testified that she did

not trust Mother to put L.S.’s interests first. See Spurck, 396 S.W.3d at 223 (noting that jury could

have reasonably inferred that mother’s failure to protect child from emotional and physical danger

in past might indicate that she would fail to do so in future).



                                                 23
                Viewing the evidence in the light most favorable to the jury’s findings, and assuming

that the jury resolved any disputed facts in favor of its findings, we conclude that the jury could have

reasonably formed a firm belief or conviction that Mother “knowingly placed or knowingly allowed

the child to remain in conditions or surroundings which endanger[ed] the physical or emotional

well-being of the child,” and that she “engaged in conduct or knowingly placed the child with

persons who engaged in conduct which endanger[ed] the physical or emotional well-being of the

child.” See Tex. Fam. Code § 161.001(b)(1)(D), (E). Further, considering the entire record, we

conclude that any disputed evidence could have been reconciled in favor of the jury’s findings, such

that the jury could have reasonably formed a firm belief or conviction that Mother “knowingly placed

or knowingly allowed the child to remain in conditions or surroundings which endanger[ed] the

physical or emotional well-being of the child,” and that she “engaged in conduct or knowingly placed

the child with persons who engaged in conduct which endanger[ed] the physical or emotional

well-being of the child.” See id. Accordingly, the evidence in this record is legally and factually

sufficient to support a statutory ground for termination of Mother’s parental rights under subsections

161.001(b)(1)(D) and (E) of the Family Code. We overrule Mother’s first issue.


Sufficient evidence supports jury’s best-interest finding

                In her second issue, Mother challenges the factual and legal sufficiency of the

jury’s finding that termination of her parental rights was in the child’s best interest. See id.

§ 161.001(b)(2). In determining whether termination of parental rights was in the child’s best

interest, we may consider a non-exhaustive list of factors including: (1) the desires of the child;

(2) the emotional and physical needs of the child now and in the future; (3) the emotional and

                                                  24
physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking

custody; (5) the programs available to assist these individuals to promote the best interest of the

child; (6) the plans for the child by the individuals seeking custody; (7) the stability of the home or

proposed placement; (8) the acts or omissions of the parent which may indicate that the existing

parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); see Tex. Fam. Code § 263.307 (noting that

“prompt and permanent placement of the child in a safe environment is presumed to be in the child’s

best interest” and setting forth factors to consider in evaluating parent’s willingness and ability to

provide child with safe environment).7 Proof of all these factors is not a prerequisite to termination

of parental rights, and the absence of some factors does not preclude the jury from finding by clear

and convincing evidence that termination is in the child’s best interest, especially when there is

undisputed evidence that the parental relationship endangered the child. In re C.H., 89 S.W.3d 17,




        7
           Several of the Holley factors overlap with the statutory factors set forth in section 263.307
of the Family Code, which include: the child’s age and physical and mental vulnerabilities; the
frequency and nature of out-of-home placements; the magnitude, frequency, and circumstances of
the harm to the child; whether the child has been the victim of repeated harm after the initial report
and intervention by the department; whether the child is fearful of living in or returning to the child’s
home; the results of psychiatric, psychological, or developmental evaluations of the child, the child’s
parents, other family members, or others who have access to the child’s home; whether there is a
history of abusive or assaultive conduct by the child’s family or others who have access to the child’s
home; whether there is a history of substance abuse by the child’s family or others who have access
to the child’s home; whether the perpetrator of the harm to the child is identified; the willingness and
ability of the child’s family to seek out, accept, and complete counseling services and to cooperate
with and facilitate an appropriate agency’s close supervision; the willingness and ability of the
child’s family to effect positive environmental and personal changes within a reasonable period of
time; whether the child’s family demonstrates adequate parenting skills; and whether an adequate
social support system consisting of an extended family and friends is available to the child. Tex.
Fam. Code § 263.307.

                                                   25
27 (Tex. 2002). Evidence that proves one or more of the statutory grounds for termination may also

constitute evidence illustrating that termination is in the child’s best interest. Id. at 28.

                As to the desires of the child, the jury heard that L.S. was just 2½ years old at the time

of trial, and thus, too young to express his desires. In such cases, the factfinder may consider the

quality and extent of the child’s relationship with the prospective placements. See J.F., 2016 Tex.

App. LEXIS 13564, at *29–30; In re J.D., 436 S.W.3d at 118; In re U.P., 105 S.W.3d 222, 230 (Tex.

App.—Houston [14th Dist.] 2003, pet. denied) (considering evidence that child was well cared for

by foster parents, had bonded with them, and spent minimal time with parent when assessing

toddler’s desires). Here, L.S. has been living with the Turners for the majority of his life. He spent

seventeen months in their home before the monitored return in March 2017, and several more

months with them before trial. There was evidence that L.S. was bonded to the Turners, who plan

to adopt him, that he loved interacting with them, looked to them for comfort, and seemed

comfortable in their home. Karim-Paris testified that CASA had no safety concerns about L.S. living

there and that the Turners are very protective caregivers.

                As to the emotional and physical needs of the child, and the emotional and physical

danger to the child, the Department reported that one area of concern is L.S.’s loss of a twin sibling.

Psychologist Alissa Sherry testified that children can suffer post traumatic stress disorder (PTSD)

from being exposed to the death of someone close to them, and that one of the most important things

a parent can do to prevent the child’s PTSD is to have an emotionally secure attachment with the

child and be responsive to the child’s needs. The evidence showed that L.S. is bonded to the

Turners, that he “easily adjusted to the familiar environment” of their home, and that he is a happy



                                                   26
and active toddler. In considering L.S.’s emotional and physical needs, the jury could have also

considered that Mother’s inability to be protective of L.C.S. and to even think that Father caused

L.C.S.’s injuries allows for the possibility of future similar harm if L.S. were left in her care. See

In re J.D., 436 S.W.3d at 118; In re B.R., 2013 Tex. App. LEXIS 7694, at *22 (noting that factfinder

may infer from parent’s past inability to meet child’s physical and emotional needs similar inability

or unwillingness to meet child’s needs in future); Castorena v. Texas Dep’t of Protective &

Regulatory Servs., No. 03-02-00653-CV, 2004 Tex. App. LEXIS 3753, at *32–33 (Tex.

App.—Austin Apr. 29, 2004, no pet.) (mem. op.) (“[A] fact finder may infer that past conduct

endangering the well-being of a child may recur in the future if the child is returned to the parent.”).

Caseworker Ayres testified that it was in L.S.’s best interest for Mother’s parental rights to be

terminated because, “I worry that the same thing that happened to [L.C.S.] could happen to [L.S.].

I just have concerns that [Mother] is not able to see when a child in her care is being harmed. And

I don’t know if she would be able to prevent future injuries.”

                As to the parental abilities of the individuals seeking custody and the stability of the

home or proposed placement, the evidence showed that the Turners have been married for eighteen

years, that L.S. is bonded to them, that they are able to provide a safe and permanent home for him,

and that they have been his home for most of his life. See In re J.D., 436 S.W.3d at 118 (noting that

stability and permanence are paramount in upbringing of children). Gayla Turner testified that she

and her husband had L.S. with them for eighteen months until the monitored-return date and that

they spent another five months with L.S. when he was returned to the Turners’ home. She stated that

L.S. was not a chronically sick child, but rather, an energetic and affectionate “regular two-year old



                                                  27
boy.” She testified that she and her husband are willing to adopt L.S. if Mother’s and Father’s

parental rights are terminated. She also testified that since L.S. was returned to the Turners, they

have also been caring for L.S.’s sister K.S.

                As to the plans for the child by the individuals seeking custody, Jonathan Turner

testified that he and his wife would like to adopt L.S. He stated that he wants to give L.S. every

opportunity for the “joys of growing up,” to live a full and happy life, to make sure that all of his

needs are met, and to help instruct him on how to make the right decisions and choices. He stated

that L.S. was doing fine, was developmentally on target, attends a day care twice a week, and did not

show any behaviors different than when he had left their care. Both CASA and the Department

support the Turners’ plan to adopt L.S., and there was testimony that the termination of parental

rights and adoption is in L.S.’s best interest.

                As to the acts or omissions of the parent which may indicate that the existing

parent-child relationship is not proper, there was evidence that Mother maintains and encourages her

children’s relationships with Father and her brother, despite what Mother knows and has been

informed about their past harm to her children. Caseworker Ayres testified that it would not be in

L.S.’s best interest emotionally to be forced into a relationship with Father. Based on Mother’s

testimony and actions with her other children, Ayres was concerned that if L.S. were returned to

Mother’s care, she might take him to see Father in jail or make L.S. talk to him by phone as she had

done with her two older children. Ayres testified that when Mother has been asked to listen to

medical testimony about the cause of L.S.’s injuries, Mother “offers a different excuse every time.

For instance, when we were at the contested hearing, [Mother] said that she could make a decision



                                                  28
about what happened to [L.S.] once they got the autopsy. And now we’ve received the autopsy, and

we’re here at trial and she wants more medical evidence.” Ayres said that Mother seemed to be

“searching for something different. And I don’t know if she would be able to see that one of her

other children were also being injured.”

                Viewing the evidence in the light most favorable to the jury’s findings, and assuming

that the jury resolved any disputed facts in favor of its findings, we conclude that the jury could have

formed a firm belief or conviction that termination of Mother’s parental rights was in L.S.’s best

interest. See Tex. Fam. Code § 161.001(b)(2). Further, considering the entire record, we conclude

that any disputed evidence could have been reconciled in favor of the jury’s findings, such that the

jury could have formed a firm belief or conviction that termination of Mother’s parental rights was

in L.S.’s best interest. See id. Thus, the evidence in this record is legally and factually sufficient to

support the jury’s best-interest finding under section 161.001(b)(2) of the Family Code. We overrule

Mother’s second issue.


No abuse of discretion in denial of requested jury instruction

                In her third and final issue, Mother challenges the district court’s denial of her

requested instruction, “something to the effect of, ‘[I]f less than ten jurors agree on a particular

answer, then no juror should sign the verdict.’” We review a trial court’s decision to refuse a

particular instruction under an abuse-of-discretion standard. Thota v. Young, 366 S.W.3d 678, 687

(Tex. 2012); Texas Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (concluding

in suit for termination of parental rights that “[t]he standard for review of the charge is abuse of

discretion, and abuse of discretion occurs only when the trial court acts without reference to any

                                                   29
guiding principle”). A trial court has considerably more discretion in submitting instructions than

it has in submitting questions. Thota, 366 S.W.3d at 687; Young v. Texas Dep’t of Protective &

Regulatory Servs., No. 03-01-00376-CV, 2002 Tex. App. LEXIS 1132, at *3 (Tex. App.—Austin

Feb. 14, 2002, no pet.) (mem. op.). An instruction is proper if it: (1) assists the jury; (2) accurately

states the law; and (3) finds support in the pleadings and evidence. Thota, 366 S.W.3d at 687; see

Tex. R. Civ. P. 277 (“The court shall submit such instructions and definitions as shall be proper to

enable the jury to render a verdict.”).

                During the charge conference below, Mother did not object to any aspect of the

court’s proposed charge. She merely requested two additions, one to add emphasis to a definition

and the other to add an instruction that was similar to one already in the court’s charge. Specifically,

Mother requested: (1) that the definition of clear-and-convincing evidence appear in bold,

underlined, or italicized print; and (2) an additional instruction stating that the verdict should not be

signed if less than ten jurors agreed on a particular answer. In her discussion of the charge, Mother

did not state why her proposed instruction should be included:


        THE COURT:              Respondent mother, are there requests or objections to the
                                Court’s Charge?

        [Mother’s counsel]:     Request, Your Honor.

        THE COURT:              Please state your request.

        [Mother’s counsel]:     The request is that a sentence be added to page seven of the
                                jury charge, immediately above the sentence that reads: [“]If
                                ten jurors agree on each answer, then those ten jurors sign the
                                verdict.[”] I’m requesting that a sentence be inserted above
                                that that states something to the effect of, [“I]f less than ten



                                                   30
                               jurors agree on a particular answer, then no juror should sign
                               the verdict.[”]

       THE COURT:              The request is denied. Any other requests or objections from
                               respondent mother?

       [Mother’s counsel]:     I would also request that on page two of the jury charge, that
                               the clear and convincing evidence definition, that the words
                               “produces a firm belief or conviction that the allegations
                               sought to be established are true” be either placed in bold,
                               underlined, or italics.

       THE COURT:              The request is denied. Any other requests or objections from
                               respondent mother?

       [Mother’s counsel]:     No, Your Honor. Thank you.


As the Department correctly notes, the Instructions on the second page of the court’s charge included

Instruction No. 11 stating, “The answers to the questions must be based on the decision of at least

ten of the twelve jurors.” This tracks the instruction for a twelve-member jury set forth in the Texas

Pattern Jury Charge. See Comm. on Pattern Jury Charges, State Bar of Tex., Texas Pattern Jury

Charges: Family & Probate PJC 200.3A (2016). Mother makes no mention of Instruction No. 11

and fails to show how her requested instruction—“something to the effect of, if less than ten jurors

agree on a particular answer, then no juror should sign the verdict”—would have provided greater

assistance to the jury in rendering their verdict. See Tex. R. Civ. P. 277; Thota, 366 S.W.3d at 687.

We conclude that Mother has not shown that the district court abused its discretion by denying her

requested instruction, and we overrule her third issue.8


       8
          Mother contends—for the first time on appeal—that the charge was “unduly suggestive,”
“confusing,” and “misleading” because in her view, the jury instructions “improperly mandated” that
ten, eleven, or twelve jurors answer each question and presupposed that they would do so when they

                                                 31
                  II. Father’s appeal

                  Father’s appointed counsel filed a brief discussing the standard of review and the

sufficiency of the evidence at trial, concluding that Father has no arguable grounds for appeal and

that Father’s appeal is wholly frivolous. See Anders, 386 U.S. at 744; High v. State, 573 S.W.2d
807, 811 (Tex. Crim. App. 1978); see also Taylor, 160 S.W.3d at 646–47. Father’s counsel has

certified to this Court that he provided Father with a copy of the brief, along with a notice

advising Father of his right to examine the appellate record and to file a pro se brief. No pro se brief

has been filed.

                  Having thoroughly reviewed the record and counsel’s brief, we agree with counsel’s

assessment that the appeal is frivolous and without merit. Father’s counsel’s request to withdraw

is denied. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016).9


signed the verdict. However, a party objecting to a charge must point out distinctly the objectionable
matter and the grounds for the objection. Tex. R. Civ. P. 274. Any complaint about a question,
definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless
specifically included in an objection. Id. As noted above, Mother made no objection to any aspect
of the court’s proposed charge and informed the court that she had no “other requests or objections”
besides her two requested additions to the charge. Plainly, Mother never made the court aware of
her complaints that an instruction was unduly suggestive, confusing, and misleading. Thus, Mother
has waived those complaints on appeal. See id.; see also Tex. R. App. P. 33.1(a) (requiring timely
and specific complaint to trial court to preserve complaint for appellate review). Further, we note
that the complained-of instructions tracked the “Instructions for Signing the Verdict Certificate” for
a twelve-member jury set forth in the Texas Pattern Jury Charge. See Comm. on Pattern Jury
Charges, State Bar of Tex., Texas Pattern Jury Charges: Family & Probate PJC 200.3A (2016).
        9
          The Texas Supreme Court has held that the right to counsel in suits seeking termination
of parental rights extends to “all proceedings in [the Texas Supreme Court], including the filing of
a petition for review.” In re P.M., 520 S.W.3d 24, 27 (Tex. 2016). Thus, counsel’s obligation to
Father has not yet been discharged, and the request to withdraw is premature. See id. If Father,
after consulting with counsel, desires to file a petition for review, counsel should timely file with
the Texas Supreme Court “a petition for review that satisfies the standards for an Anders brief.” Id.
at 27–28.

                                                  32
                                      CONCLUSION

              We affirm the district court’s judgment terminating the parental rights of V.C.

and R.S.




                                           Jeff Rose, Chief Justice

Before Chief Justice Rose, Justices Goodwin and Field

Affirmed

Filed: June 22, 2018




                                             33