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					                               No. 01-0882



                 In the
          Supreme Court of Texas


           IN THE INTEREST OF B.L.D. AND B.R.D.,
                     M INOR C HILDREN



                     On Petition for Review from the
                  Tenth Court of Appeals in Waco, Texas



             P ETITIONER ’S B RIEF ON THE M ERITS



JOHN CORNYN                                   JOSEPH D. HUGHES
Attorney General of Texas                     Assistant Solicitor General
                                              State Bar No. 24007410
HOWARD G. BALDWIN, JR.
First Assistant Attorney General              Office of the Attorney General
                                              P.O. Box 12548 (MC 059)
JULIE CARUTHERS PARSLEY                       Austin, Texas 78711-2548
Solicitor General                             (512) 936-1700
State Bar No. 15544920                        (512) 474-2697 Facsimile


           C OUNSEL FOR P ETITIONER T EXAS D EPARTMENT OF
               P ROTECTIVE AND R EGULATORY S ERVICES
                     IDENTITY OF PARTIES AND COUNSEL
Petitioner/Appellee:                      Counsel for Petitioner:
The Texas Department of Protective        (Supreme Court of Texas)
and Regulatory Services                   Julie Caruthers Parsley
                                          Joseph D. Hughes
                                          Office of the Attorney General
                                          P.O. Box 12548 (MC 059)
                                          Austin, Texas 78711-2548
                                          (512) 936-1700
                                          (512) 474-2697 (facsimile)

                                          (Court of Appeals)
                                          John W. Segrest
                                          James Wiley
                                          Office of the Criminal District Attorney,
                                          McLennan County, Texas
                                          219 North Sixth Street, Suite 200
                                          Waco, Texas 76701-1363
                                          (254) 757-5084
                                          (254) 757-5021 (facsimile)

                                          (Trial court)
                                          Daniel Semanek
                                          Office of the Criminal District Attorney,
                                          McLennan County, Texas
                                          219 North Sixth Street, Suite 200
                                          Waco, Texas 76701-1363
                                          (254) 757-5084
                                          (254) 757-5021 (facsimile)




                                     ii
Respondents/Appellants:              Counsel for Respondents:
Jimmy Lee Dossey                     (Supreme Court and Court of Appeals)
Spring Dossey                        Nita Fanning
                                     Law Office of Nita Fanning
                                     P.O. Box 975
                                     Waco, Texas 76703-0975
                                     (254) 752-5678
                                     (254) 752-7795 (facsimile)

                                     (Trial court)
                                     Gerald R. Villarreal
                                     Law Office of Gerald R. Villarreal
                                     1906 Austin Ave.
                                     Waco, Texas 76701
                                     (254) 755-0380
                                     (254) 755-9979 (facsimile)


Minor children in interest:          Ad Litem:
Brandon Lee Dossey (B.L.D.)          Gary Coley
Bryan Rayden Dossey (B.R.D.)         P.O. Box 571
                                     Waco, Texas 76703
                                     (254) 757-2082
                                     (254) 757-2510 (facsimile)




                               iii
                                                 TABLE OF CONTENTS


Identity of Parties and Counsel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Index of Authorities . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiii

Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

Issues Presented . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

Statement of Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

          I.        The Court of Appeals Erred in Holding that the Sixth Amendment
                    Right to Counsel in Criminal Proceedings Extends to this Civil,
                    Parental-Rights Termination Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

                    A.        The Statutory Right to Counsel in Civil Termination Cases Is
                              Not Equivalent to the Constitutional Right to Counsel in
                              Criminal Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

                    B.        The Clear Majority of Texas Courts Have Held that Claims of
                              Ineffective Assistance of Counsel Do Not Extend to Civil
                              Proceedings. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

                    C.        An Indigent Parent’s Statutory Right to Appointed Counsel
                              Does Not Include a Non-Waivable Right to Separate Counsel . . . 14

                    D.        The Dosseys Affirmatively Waived Any Error by Requesting
                              Joint Representation . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

                              1.         The Dosseys affirmatively and knowingly waived any
                                         conflict of interest arising from the joint representation . . . 17



                                                                 iv
                 2.        A request for separate trials by jointly represented
                           parents is not sufficient to preserve error when a request
                           for appointment of separate counsel was not made . . . . . . . 18

                 3.        The court of appeals erroneously relied on a juror’s
                           affidavit regarding jury deliberations to find that a
                           conflict existed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

II.    The Court of Appeals Erred in Holding that the Jury Charge was Fatally
       Defective . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

       A.        Crown Life Did Not Overrule E.B. . . . . . . . . . . . . . . . . . . . . . . . . . 23

       B.        The Jury Charge Tracks the Statutory Language of the Family
                 Code . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

       C.        The Jury Charge Was Consistent with Rules 277 and 292 as
                 Interpreted by this Court. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

       D.        The Lower Court’s Holding Is Inconsistent with Decisions of
                 Other Texas Appellate Courts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

       E.        The Dosseys Waived Any Error by Not Objecting to the Charge
                  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27

III.   The Dosseys’ Remaining Issues Are Without M erit. . . . . . . . . . . . . . . . . 29

       A.        The Dosseys’ Issues Relating to the Jury Charge and the Form
                 of the Verdict Should Be Rejected . . . . . . . . . . . . . . . . . . . . . . . . . 29

       B.        The Dosseys’ Complaints About Evidentiary Issues Are Without
                 Merit . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30

                 1.        The trial court did not err in refusing to exclude Nurse
                           Duncum’s testimony . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

                 2.        The trial court did not err in admitting evidence of
                           various bad acts committed by Jimmy . . . . . . . . . . . . . . . . . 34

                           a.         Evidence of Jimmy’s sexual interest in the
                                      children . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34



                                                     v
                                       b.        Evidence of Jimmy’s assault on Spring at Wal-
                                                 Mart . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

                                       c.        Evidence that Jimmy downloaded child
                                                 pornography . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37

                                       d.        Evidence that Jimmy served as a drug informant
                                                  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 38

                                       e.        Evidence that Jimmy requested sexual favors of
                                                 Spring . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

                   C.        The Evidence Is Legally Sufficient to Support Termination as to
                             Both Spring and Jimmy Dossey . . . . . . . . . . . . . . . . . . . . . . . . . . . 39

                             1.        Legal sufficiency with regard to Jimmy . . . . . . . . . . . . . . . 41

                             2.        Legal sufficiency with regard to Spring . . . . . . . . . . . . . . . 43

Conclusion and Prayer . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 45

Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 48




                                                               vi
                                      INDEX OF AUTHORITIES


Cases

Arteaga v. Tex. Dep’t of Protective & Regulatory Servs., 924 S.W.2d 756
      (Tex. App. Austin 1996, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 17, 19

City of Fort Worth v. Zimlich, 29 S.W.3d 62 (Tex. 2000) . . . . . . . . . . . . . . . . . . . . . . . . 39

Coleman v. Thompson, 501 U.S. 722 (1991) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Cont’l Coffee Prods. v. Cazarez, 937 S.W.2d 444 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . 40

Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000) . . . . . . . . . . . . . . . . . . . 22, 23

Dupree v. Tex. Dep’t of Prot. & Reg. Servs., 907 S.W.2d 8
      (Tex. App. Dallas 1995, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 41

Ex parte Cantu, 913 S.W.2d 701 (Tex. App.                   San Antonio 1995, pet. ref’d) . . . . . . 9, 11

Ex parte Graves, 70 S.W.3d 103 (Tex. Crim. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . 15

Fortune Prod. Co. v. Conoco, Inc., 52 S.W.3d 671 (Tex. 2000) . . . . . . . . . . . . . . . . . . . 18

Gideon v. Wainright, 372 U.S. 335 (1963) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10, 11

Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362 (Tex. 2000 . . . . . . . . . . . . . . . . 19

Haley v. Boles, 824 S.W.2d 796 (Tex. App.               Tyler 1992, orig.proceeding) . . . . . . . . . 11

Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Howell v. Dallas County Child Welfare Unit, 710 S.W.2d 729
      (Tex. App. Dallas 1986, writ ref’d n.r.e.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

In re A.R.R., 61 S.W.3d 691 (Tex. App.             Fort Worth 2001, pet. denied) . . . . . . . . . . . 13

In re B.B., 971 S.W.2d 160 (Tex. App.             Beaumont 1998, pet. denied) . . . . . . . . . . . . . 13

In re B.L.D., 56 S.W.3d 203 (Tex. App.             Waco 2001), pet. granted) . . . . . . . . . . passim



                                                      vii
In re B.R., 950 S.W.2d 113 (Tex. App.                      El Paso 1997, no writ) . . . . . . . . . . . . . . . . . . 37

In re C.H., 44 Tex. Sup. Ct. J. 433 (Feb. 15, 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

In re C.W., 65 S.W.3d 353 (Tex. App.                      Beaumont 2002, no pet.) . . . . . . . . . . . . . . . . . 14

In re E.L.Y., 69 S.W.3d 838 (Tex. App.                      Waco Mar. 27, 2002, no pet.) . . . . . . . . . . . . 14

In re G.M., 596 S.W.2d 846 (Tex. 1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

In re J.C.M.A., 31 S.W.3d 692 (Tex. App.                        Houston [1st Dist.] 2000, no pet.) . . . . . . 40

In re J.F., 888 S.W.2d 140 (Tex. App.                     Tyler 1994, no writ) . . . . . . . . . . . . . . . . . . . . 13

In re J.F.C., 57 S.W.3d 66 (Tex. App.                     Waco 2001, pet. granted) . . . . . . . . . . 26, 28, 30

In re J.M.S., 43 S.W.3d 60 (Tex. App.                     Houston [1st Dist.] 2001, no pet.) . . . . . . . 13, 14

In re J.M.T., 39 S.W.3d 234 (Tex. App.                      Waco 1999, no pet.) . . . . . . . . . . . . . . . . . . . 40

In re K.J.O., 27 S.W.3d 340 (Tex. App.                      Dallas 2000, pet. denied) . . . . . . . . . . . . . . . 10

In re K.R., 22 S.W.3d 85 (Tex. App. Houston [14th Dist.] 2000 (en banc)),
       rev’d, 63 S.W.3d 796 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

In re K.R., 63 S.W.3d 796 (Tex. 2001) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 21, 28

In re K.S., __S.W.3d__, 2002 WL 10503
       (Tex. App. Amarillo Jan. 3, 2002, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11

In re M.A.F., 966 S.W.2d 448 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

In re M.C., 917 S.W.2d 268 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40, 44

In re M.C.M., 57 S.W.3d 27 (Tex. App. Houston [1st Dist.] 2001,
       pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9, 11, 27

In re R.V., 977 S.W.2d 777 (Tex. App.                      Fort Worth 1998, no pet.) . . . . . . . . . . . . . . . 10

In re W.A.B., 979 S.W.2d 804 (Tex. App. Houston [14th Dist.] 1998,
       pet. denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42



                                                              viii
In re W.C., 56 S.W.3d 863 (Tex. App. Houston [14th Dist.] 2001, no pet.) . . . . . . . . 36
Johnson v. Zerbst, 304 U.S. 458 (1938) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8-9

Krasniqi v. Dallas County Child Prot. Servs. Unit, 809 S.W.2d 927
      (Tex. App. Dallas 1991, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Lassiter v. Dep’t of Soc. Servs., 452 U.S. 18 (1981) . . . . . . . . . . . . . . . . . . . . . . . 9-11, 14

Leitch v. Hornsby, 935 S.W.2d 114 (Tex. 1996) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

Malone v. State, 864 S.W.2d 156 (Tex. App.                     Fort Worth 1993, no pet.) . . . . . . . . . 9, 11

Pennsylvania v. Finley, 481 U.S. 551 (1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

Pirtle v. Gregory, 629 S.W.2d 919 (Tex. 1982) (per curiam) . . . . . . . . . . . . . . . . . . . . . 19

Posner v. Dallas County Child Welfare Unit, 784 S.W.2d 585
      (Tex. App. Eastland 1990, writ denied) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Read v. Scott Fetzer Co., 990 S.W.2d 732 (Tex. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . 39

Ross v. Moffitt, 417 U.S. 600 (1974) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Santosky v. Kramer, 455 U.S. 745 (1982) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

Stafford v. Stafford, 726 S.W.2d 14 (Tex. 1987) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 40

State Dep’t of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235 (Tex. 1992) . . 27-28

Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531 (Tex. 1987) . . . . . . . . . . . . . . . . 40

Tex. Dep’t of Human Servs. v. E.B., 802 S.W.2d 647 (Tex. 1990) . . . . . . . . . . . . . passim

Trevino v. Tex. Dep’t of Protective & Regulatory Servs., 893 S.W.2d 243
      (Tex. App. Austin 1995, no writ) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 42

Vaughan v. Walther, 875 S.W.2d 690 (Tex. 1994) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Walton v. City of Midland, 24 S.W.3d 853
      (Tex. App. El Paso 2000, no pet.) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13




                                                          ix
Statutes and Rules

T EX. D ISCIPLINARY R. P ROF’L C ONDUCT 1.06(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

T EX. F AM. C ODE §105.003(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

T EX. F AM. C ODE §107.013 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 17

T EX. F AM. C ODE §107.013(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

T EX. F AM. C ODE §107.013(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 17

T EX. F AM. C ODE §161.001 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 40

T EX. F AM. C ODE §161.001(1)(D) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 39, 42

T EX. F AM. C ODE §161.001(1)(E) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 37, 39, 42

T EX. G OV’T C ODE §22.001(a)(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

T EX. G OV’T C ODE §22.001(a)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

T EX. G OV’T C ODE §22.001(a)(6) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xiv

T EX. R. A PP. P. 33.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . passim

T EX. R. A PP. P. 44.1(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 28, 34, 36, 37, 39

T EX. R. A PP. P. 53.4 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . xv, 29

T EX. R. C IV. P. 274 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28

T EX. R. C IV. P. 277 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12, 24, 25, 30, 45

T EX. R. C IV. P. 292 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 22, 24

T EX. R. C IV. P. 327(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

T EX. R. E VID . 606(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19, 20

T EX. R. E VID . 801(e)(2) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

                                                                x
T EX. R. E VID . 802 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

U.S. C ONST., amend. VI . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9


Other Authorities

C OMM. ON P ATTERN J URY C HARGES, S TATE B AR OF T EX.,
      T EXAS P ATTERN J URY C HARGES PJC 218.1B and Comment (2000 ed.) . . . . . . . 24




                                                                xi
                                        No. 01-0882


                              In the
                       Supreme Court of Texas


            IN THE INTEREST OF B.L.D. AND B.R.D., MINOR CHILDREN



                             On Petition for Review from the
                          Tenth Court of Appeals in Waco, Texas



                         PETITIONER’S BRIEF ON THE MERITS


T O THE H ONORABLE S UPREME C OURT OF T EXAS:

       This case involves two issues of great importance in Texas parental-rights termination

cases. First, can a claim of ineffective assistance of counsel be raised in an appeal from a

civil termination trial? Second, has Texas Departm ent of Human Services v. E.B., 802

S.W.2d 647 (Tex. 1990), which approved the use of broad-form jury charges in termination

cases, been overruled? Because the court of appeals erroneously concluded “yes” as to both

questions, the Department asks this Court to reverse the lower court’s judgment and either:

(1) affirm the termination judgment with respect to all issues except the Dosseys’ factual

sufficiency complaint, which should be remanded for the court of appeals to address; or (2)

remand the case for the court of appeals to consider all the Dosseys’ remaining appellate

issues that were not addressed in that court’s initial opinion.


                                             xii
                               STATEMENT OF THE CASE

Nature of the Case:               This is an appeal of a suit to terminate the parent-child
                                  relationship.

Trial Court:                      The Honorable Ralph T. Strother, 19th District Court,
                                  McLennan County, Texas.

Trial Court Disposition:          Final judgment ordering termination of the parent-child
                                  relationships (1) between Respondent, Spring Dossey,
                                  and her minor children B.L.D. and B.R.D., and (2)
                                  between Respondent, Jimmy Lee Dossey, and the same
                                  children. The trial court’s order appointed the Texas
                                  Department of Protective and Regulatory Services to be
                                  the Permanent Managing Conservator of the children.

Parties in Court of Appeals:      Appellants: Jimmy Lee Dossey and Spring Dossey
                                  Appellee:   Texas D epartment of Protective and
                                              Regulatory Services
                                  Minor Children in Interest: Brandon Lee Dossey and
                                  Bryan Rayden Dossey

Court of Appeals:                 Tenth Court of A ppeals, Waco; per curiam opinion
                                  signed by Chief Justice Davis and Justice Vance, with
                                  dissenting opinion by Justice Gray. In re B.L.D., 56
                                  S.W.3d 203 (Tex. App. Waco 2001), pet. granted).

Court of Appeals’s Disposition:   Reversed and remanded to trial court.
                                  Motion for rehearing denied August 8, 2001.




                                           xiii
                             STATEMENT OF JURISDICTION

       This Court has jurisdiction because this is a case in which: (1) the justices of the court

of appeals disagree on questions of law material to the decision; (2) the court of appeals held

differently from prior decisions of this Court on questions of law material to the decision

below, and there is disagreement among the courts of appeals on those questions; and (3)

errors of law have been committed by the court of appeals, and those errors are of such

importance to the jurisprudence of the state as to require correction. See T EX. G OV’T C ODE

§22.001(a)(1), (2), (6).

                                    ISSUES PRESENTED

       1.     Does due process require that the Sixth Amendment right to effective

assistance of counsel in criminal proceedings be extended to civil, termination-of-parental-

rights proceedings? If so:

              A.      Can the parents waive an alleged conflict of interest arising from joint

                      representation?

              B.      Is a request for separate trials by jointly represented parents sufficient

                      to preserve error when a request that separate counsel be appointed was

                      not made?

              C.      Did the court of appeals erroneously rely on a juror’s affidavit

                      regarding jury deliberation to find that a conflict existed?




                                              xiv
       2.     Did the court of appeals err in holding that the broad-form jury charge

submitted by the trial court was fatally defective because it allowed the jury to find for

termination without specifically requiring at least ten jurors to make a separate finding on

either of the two statutory termination grounds presented in the jury charge?

              A.     If the jury charge was defective, did the Dosseys waive that error by not

                     objecting to the charge?

       Should these issues be resolved in the Department’s favor, the Court should, pursuant

to Texas Rule of Appellate Procedure 53.4, consider the following issues that were presented

to the court of appeals but were not decided by that court:

       3.     Are specific questions regarding whether termination is in the best interest of

the child required in the jury charge?

       4.     Are specific jury findings on the statutory grounds for termination required?

       5.     Was testimony regarding the nature of the scalding incident admissible?

       6.     Was evidence of Jimmy’s alleged downloading of child pornography and other

sexually related incidents admissible?

       7.     Is the evidence legally sufficient to support the jury’s finding that statutory

grounds for termination were met?




                                             xv
                                       STATEMENT OF FACTS

        Jimmy and Spring Dossey, husband and wife, are the natural parents of Brandon and

Bryan Dossey, the children who are the subject of this termination case. The Dosseys first

came to the Department’s attention in 1995, shortly after Brandon, their first child, was born.

Spring left Brandon, who was seated in a car-seat carrier, on the sloping trunk of her car

while she returned to the house. When Spring’s younger brother slammed the car door,

Brandon fell to the ground and fractured his skull.                 14 RR 77-78.        The Department

investigated the incident and deemed it an accident. 2 CR 287.

        In February 1998, when he was 15 months old, Bryan required hospital treatment for

first and second-degree burns on his feet. 14 RR 38-39. Spring initially claimed that she fell

asleep with Bryan and awoke to find that he had pulled a chair up to the sink and was playing

in the water.1 However, the treating nurse determined that Bryan’s injuries were not

consistent with this explanation, because he had a “sock line” burn consistent with burns

caused by dunking or immersion, and she did not observe any splash-type burns that would

normally result from contact with hot, running water. 15 RR 41-44. After treating Bryan,

she contacted the Department to report a case of possible child abuse. 15 RR 42.

        The Department’s caseworker assigned to investigate this incident also did not believe

Spring’s original story, because 15-month-old children typically lack the fine motor skills

required to maneuver a chair into place and use it to climb into a kitchen sink. 15 RR 54.


         1. After failing a polygraph examination, Spring later changed her story and claimed that she turned
off the cold water while Bryan was playing in the sink, not knowing that the hot water was on. 5 RR 12-13;
14 RR 81-82. However, she testified at the termination trial that this second version was untrue, and claimed
that her original story was true. 14 RR 81-82.

                                                     1
An investigating police officer found that the hot water thermostat in the Dosseys’ trailer

home was set at 160 degrees, a setting far hotter than what is safe for children or even adults.

15 RR 32. The Department temporarily removed Brandon and Bryan from the Dosseys’

home, but the children were returned in October 1998. 1 RR 59-61; 14 RR 86.

        In January 1999, Jimmy was arrested after he stole a handgun from a neighbor’s

house.2 14 RR 235. About a month later, the Department was informed that Jimmy had

“downloaded” child pornography in the home of Lisa Brewington, a friend of the Dosseys

with whom they lived briefly in the fall of 1998. At the termination trial, Jimmy admitted

to viewing pornography regularly, even when children were in the house, but denied

downloading child pornography. 14 RR 231-33. However, Ms. Brewington deduced it was

Jimmy who downloaded the image she reported, because he was the only person in the house

at the time that the image was downloaded. 15 RR 63-65. On the basis of the gun theft and

the child pornography allegations, the Department removed the children again.

        In July 1999, while Brandon and Bryan were in the Department’s custody, Jimmy and

Spring got into a violent argument in a Wal-Mart parking lot. A Wal-Mart security officer

testified that Jimmy chased Spring around their car, shouting “come here, bitch” before

striking her in the face. 15 RR 18-19. Jimmy fled the scene on foot; Spring got into their car

and wanted to leave, but Wal-Mart personnel convinced her to wait for the police. 15 RR

20. When the police arrived, Spring was uncooperative and refused to answer whether


        2. At the termination trial, Jimmy admitted stealing the handgun. 14 RR 235. However, he was not
prosecuted for that crime in exchange for his participating in undercover drug operations by making
controlled purchases of illegal drugs for local law enforcement officers. 16 RR 64.

                                                   2
Jimmy had hit her, although Jimmy later admitted that he had. 15 RR 13-14. However, at

the termination trial, Spring still denied that Jimmy hit her in the parking lot; instead, she

claimed that he swung at her but missed. 14 RR 93-94.

       Jimmy, who was 23 years old at the time of the termination trial, wears a pacemaker

and receives disability payments due to a serious heart condition. 14 RR 132-33. He was

generally unemployed, but he sometimes worked as an informant for local police officers and

participated in undercover drug operations. 14 RR 103-04. Spring testified that despite his

heart condition, she had “no problem” with his working as an informant, since she viewed

Jimmy’s activities as protecting children, including her own, from illegal drugs. 14 RR 105-

06. However, in three drug tests administered after July 1999, Jimmy tested positive for

marijuana use three times and once for methamphetamines, in spite of his heart condition.

15 RR 155-56. Jimmy also admitted to using cocaine and “acid” as a youth. 14 RR 239-40.

Spring testified that Jimmy had smoked marijuana in front of Brandon when he was a baby.

14 RR 108. Spring claimed she did not know when Jimmy last smoked marijuana. 14 RR

109.

       Jeremy Terry was a neighbor of the Dosseys in a duplex they shared beginning in late

1998. Mr. Terry testified that the Dossey children were always dirty when he saw them

outside, which was rare; that the children would often scream during the night for periods

of half an hour to an hour; and that he could hear Jimmy yelling at the children whenever

they were crying. 15 RR 102-05. Mr. Terry also testified that the Dosseys had a puppy for

awhile, which yelped day and night until Jimmy stated that he “got rid of it” because the dog


                                              3
had turned on him. 15 RR 105. Mr. Terry testified that he believed that the puppy yelped

because it was being beaten, and he once saw Jimmy beat the dog. 15 RR 106, 112.

       In March 1998, the Department referred Spring to psychologist Dr. James Shinder,

who gave Spring a psychological evaluation and assessed her parenting skills. Spring

reported that her own father had physically and sexually abused her. 14 RR 155. Spring’s

failure to report him to authorities, and the possibility that this man could be responsible for

Brandon and Bryan if anything happened to Jimmy or Spring, concerned Dr. Shinder. 14 RR

163-64. He was also very concerned about Spring’s inability to anticipate potential dangers

to her children, and the fact that she seemed content with her parenting history despite the

occurrence of at least two serious injuries to her sons. 14 RR 158-61.

       During the evaluation, Spring also expressed dissatisfaction with Jimmy’s role as a

parent. 14 RR 159. She indicated that Jimmy had physically abused her, had smoked

marijuana in front of Brandon, was a “liar,” and had brought a stolen gun and stolen bicycle

into the house. 14 RR 159-60. Spring also indicated that Jimmy had a sexual interest in the

children, but refused to elaborate on this statement; when Dr. Shinder attempted to elicit

additional details, Spring acted as if “maybe she had stated something she wished she

hadn’t.” 14 RR 162.

       Dr. Shinder completed a similar evaluation of Jimmy and found his statements “highly

contradictory” to the information provided by Spring. 14 RR 164. For instance, Jimmy

admitted to Dr. Shinder that he occasionally struck Spring in front of the children. 14 RR

170-71. However, Spring testified that Jimmy never hit her in front of the children. 14 RR


                                               4
96, 129. Similarly, Jimmy claimed that he never yelled at the children; however, the

testimony of the Dosseys’ neighbor Jeremy Terry described nightly yelling and verbal abuse

by Jimmy. 14 RR 228; 15 RR 102-05.

       Dr. Shinder also noted contradictions in the Dosseys’ accounts of the type and

frequency of Jimmy’s acts of spousal abuse. While Spring admitted that Jimmy punched her

and kicked her approximately every six months, 3 she characterized the abuse as “pushing and

shoving,” while Jimmy acknowledged that he punched her in the face. 14 RR 165, 168, 173-

74. Based on the presence of domestic violence, crime, drug abuse, and potential sexual

abuse or sexually inappropriate behavior in the Dossey home, together with a history of

serious injuries to the children and the Dosseys’ lack of honesty concerning prior events, Dr.

Shinder recommended terminating the Dosseys’ parental rights. 14 RR 171-72.

       Jasmine Kahn, a counselor in Dr. Shinder’s office, testified that Spring had a history

of irresponsible behavior, that she had “very poor” decision-making abilities, and that her

failure to recognize abuse posed a risk to her children. 15 RR 119-123. For instance, Spring

refused to address the child pornography issue. 15 RR 122. Similarly, she believed Jimmy’s

explanation that his heart medications, rather than illegal drugs, caused him to test positive

for methamphetamine use. 14 RR 228-29.




        3. While Jimmy and Spring were evasive about how often Jimmy hit Spring, both used the phrase
“once in a blue moon” to describe the frequency of his abuse. 14 RR 74, 170-71. That Spring used the
identical phrase in her trial testimony that Jimmy used with Dr. Shinder suggests that Jimmy convinced
Spring either that the abuse was infrequent or to adopt that phrase in her testimony. See 16 RR 115.

                                                  5
       When asked how he thought it would impact his children if they had been present

during the assault in the Wal-Mart parking lot, Jimmy did not indicate that witnessing

spousal abuse would negatively affect his children; he merely responded: “I don’t know.

I’m not them.” 14 RR 238. Jimmy did acknowledge that such abusive situations were not

a proper environment for raising children, and he agreed that his children deserved better.

Id. Spring testified similarly. 14 RR 97. However, Jimmy described his parenting skills as

“fairly normal.” 14 RR 227. Likewise, Spring testified that she believed that Jimmy was a

good husband and parent, despite abundant evidence to the contrary. 16 RR 82.

                             SUMMARY OF THE ARGUMENT

       The court of appeals extended the Sixth Amendment right of counsel, long enjoyed

exclusively by criminal defendants, to civil litigants in parental-rights termination cases. In

so doing, the court departed from the conclusion, reached by the clear majority of the courts

of appeals that have addressed the issue, that claims of ineffective assistance of counsel

cannot be raised in civil, parental-rights termination cases. Simply put, the Sixth Amendment

right to counsel in criminal proceedings is inapplicable in parental-rights termination cases

that are wholly civil in nature. Although indigent parents have a statutory right to counsel

in termination cases, that right does not invoke the standards applicable to claims of

ineffective assistance of counsel in the criminal-law context. And while indigent parents

have a limited statutory right to unconflicted appointed counsel, both Dosseys affirmatively

waived that right in open court.




                                              6
       Moreover, the court of appeals’s conclusion that the broad-form jury charge was

fatally defective directly contradicts this Court’s holding in Texas Department of Human

Services v. E.B., 802 S.W.2d 647 (Tex. 1990). In rejecting the same argument embraced by

the court of appeals in this case, the E.B. court approved a jury charge that is

indistinguishable from the jury charge in this case. Moreover, E.B. affirmed that the abuse

of discretion standard of review applies to jury charge issues in termination cases, and

rejected the argument that the constitutional rights involved in such cases require a different

standard of review. While the court of appeals suggested that E.B. has been implicitly

overruled, the cases cited in its opinion do not support that proposition.

       If the Court agrees with the Department that the lower court erred with the respect to

issues of the jury charge and the conflict of counsel, it should address the other issues raised

by the Dosseys in the court of appeals but not addressed by that court. Specifically, the

Dosseys allege: (1) that specific questions regarding whether termination is in the best

interest of the child are required in the jury charge, and specific jury findings on the statutory

grounds for termination are required; (2) that testimony about the scalding incident and

Jimmy’s alleged downloading of child pornography and other sexually related incidents was

inadmissible; and (3) that the evidence was legally and factually insufficient to support the

jury’s finding that statutory grounds for termination were met. Each of these claims is

without merit and should be rejected.

                                         ARGUMENT



                                                7
I.     T HE C OURT OF A PPEALS E RRED IN H OLDING THAT THE SIXTH A MENDMENT R IGHT
       TO  C OUNSEL IN C RIMINAL P ROCEEDINGS E XTENDS TO THIS C IVIL , P ARENTAL-
       R IGHTS T ERMINATION C ASE.

       In the court below, the Dosseys complained that they were denied effective assistance

of counsel due to a conflict of interest allegedly caused by trial counsel’s joint representation

of both Spring and Jimmy Dossey. The court of appeals agreed, concluding that the Sixth

Amendment right to effective assistance of counsel applicable in the criminal-law context

should be extended to create a constitutional right to effective assistance of counsel in

parental-rights termination cases. In re B.L.D., 56 S.W.3d 203, 211-12 (Tex. App.         Waco

2001, pet. filed). The court also erroneously concluded that this conflict could not be waived,

and that an affidavit executed by a juror who did not vote to terminate Spring’s parental

rights established that a conflict of interest rendered trial counsel’s assistance ineffective as

a matter of law. Id. at 212-14. The court of appeals anchored these conclusions in the

erroneous foundation that the Sixth Amendment applies to this civil action. Because this

premise is incorrect, all of the court’s conclusions resulting from that premise are also

incorrect.

       A.     The Statutory Right to Counsel in Civil Termination Cases Is Not
              Equivalent to the Constitutional Right to Counsel in Criminal
              Proceedings.

       A critical distinction between the statutory right to counsel in civil, parental-rights

termination proceedings and the constitutional right to effective assistance of counsel in

criminal proceedings is the source of each right. The right to appointed counsel in criminal

cases is derived from the Sixth Amendment to the United States Constitution, and is


                                               8
premised on the concept that the life or personal liberty interests at stake in a criminal trial

are the most important and fundamental rights recognized by our society. See Johnson v.

Zerbst, 304 U.S. 458, 462 (1938). By its express terms, however, the Sixth Amendment is

applicable only to criminal proceedings.4 U.S. C ONST., amend. VI.

        But while termination of the parent-child relationship is a “‘unique type of

deprivation’” of “‘an interest far more precious than any property right,’” termination

proceedings are civil, not criminal, in nature In re K.S., __S.W.3d__, 2002 WL 10503, at *9

(Tex. App.      Amarillo Jan. 3, 2002, no pet.).(quoting Lassiter v. Dep’t of Soc. Servs., 452

U.S. 18, 27 (1981), and Santosky v. Kramer, 455 U.S. 745, 759 (1982)). This is chiefly

because termination proceedings          unlike criminal prosecutions         are not punitive in nature.5

See Lassiter, 452 U.S. at 34 (Burger, C.J., concurring); In re M.C.M., 57 S.W.3d 27, 32 (Tex.

App.    Houston [1st Dist.] 2001, pet. denied); Ex parte Cantu, 913 S.W.2d 701, 706 (Tex.

App.    San Antonio 1995, pet. ref’d); Malone v. State, 864 S.W.2d 156, 159 (Tex.

App.    Fort Worth 1993, no pet.). Moreover, the higher evidentiary burden required in

criminal trials further demonstrates the greater constitutional dimensions involved when a

defendant’s life or liberty interests are at stake. While proof of guilt beyond a reasonable

doubt is required in criminal cases, the lesser “clear and convincing” standard of proof


        4. “In all criminal prosecutions, the accused shall enjoy the right . . . to have the assistance of
counsel for his defense.” U.S. CONST ., AMEND . VI.
        5. The focus on termination proceedings is the best interest of the child. Thus, the deprivation
resulting from termination simply reflects the essential nature of the parental rights at stake; it does not
render the purpose of the termination proceeding punitive in nature. While a parent’s conduct (such as
causing injury to a child) can lead to both civil termination proceedings and criminal prosecution, these are
separate proceedings that are initiated by independent governmental bodies and have entirely different
purposes.

                                                     9
applies in termination cases. See Santosky, 455 U.S. at 747-8; In re G.M., 596 S.W.2d 846,

847 (Tex. 1980).

       The Sixth Amendment right to counsel, then, does not extend to civil, parental-rights

termination cases. See Lassiter, 452 U.S. at 25-26. Instead, the right to counsel in these

cases is statutory, not constitutional. See T EX. F AM. C ODE §107.013(a).

       Although this Court and the United States Supreme Court have both recognized that

involuntary termination of the parent-child relationship implicates fundamental constitutional

rights, neither court has held that due process requires the appointment of counsel for

indigent parents in all cases. To the contrary, the United States Supreme Court has held that

due process requires a trial court to offer appointed counsel to every criminal defendant

before imposing a sentence of imprisonment, see Gideon v. Wainright, 372 U.S. 335, 343-45

(1963), but does not require the appointment of counsel in every parental termination

proceeding. See Lassiter, 452 U.S. at 31-32; see also id. at 27 n.3 (recognizing that when

parents are also charged with criminal conduct, they may need legal counsel to help them

understand the ramifications that termination proceedings may have on subsequent criminal

proceedings).

       Lassiter recognized that a defendant’s right to appointed counsel is derived from the

risk of loss of physical liberty; as a litigant’s interest in personal liberty diminishes, so does

his right to counsel. See id. at 25-26. However, parental-rights termination proceedings do




                                               10
not jeopardize a parent’s liberty interests.6              Moreover, as noted above, termination

proceedings are not punitive in nature.              See Lassiter, 452 U.S. at 34 (Burger, C.J.,

concurring); see also K.S., 2002 WL 10503 at *9 (termination proceedings are remedial, not

punitive); M.C.M., 57 S.W.3d at 32 (ibid); Cantu, 913 S.W.2d at 706 (ibid); Malone, 864

S.W.2d at 159 (ibid). These cases support the conclusion that the constitutional right to

effective assistance of counsel is not applicable to civil, parental-rights termination

proceedings.7

        The Dosseys argue that an accused facing imprisonment is no more deserving of

appointed counsel than an indigent parent facing termination of their parental rights. See

Resp. to Pet. for Review at 9. However, the United States Supreme Court has reached the

opposite conclusion as a matter of constitutional law, as expressed by its holdings in Gideon

and Lassiter. And neither this Court nor the Texas Legislature has imported criminal-law

constitutional standards for effective assistance of counsel into the arena of civil law.

        Parental-rights termination cases undoubtedly involve important constitutional rights;

however, these rights are protected by applying the “clear and convincing” standard of proof



         6. The Sixth Amendment right to counsel has been held applicable in juvenile delinquency cases.
See, e.g., In re K.J.O., 27 S.W.3d 340, 342 (Tex. App. Dallas 2000, pet. denied). While technically civil,
delinquency proceedings are quasi-criminal in nature. See In re M.A.F., 966 S.W.2d 448, 450 (Tex. 1998).
In contrast, termination cases are not criminal or quasi-criminal in nature, but are instead wholly civil. See
In re R.V., 977 S.W.2d 777, 781 (Tex. App. Fort Worth 1998, no pet.). The Dosseys’ assertions that
termination proceedings are quasi-criminal or punitive in nature are unsupported by citation to any authority,
and are incorrect. See Resp. to Pet. for Review at 6, 9.
         7. As contrary authority, the Dosseys cite Haley v. Boles, a civil mandamus action arising out of the
representation of a defendant in a criminal case. 824 S.W.2d 796 (Tex. App. Tyler 1992, orig. proceeding).
Haley is based on the application of an assistance-of-counsel standard derived from a criminal defendant’s
Sixth Amendment right to counsel; however, no such constitutional right is implicated in termination cases.
The Dosseys’ reliance on Haley is thus misplaced. See Resp. to Pet. for Review at 4-5.

                                                     11
in termination trials. See G.M., 596 S.W.2d at 847. Moreover, this Court has held that

recognizing the existence of these rights does not render inapplicable procedural rules that

otherwise must be applied in civil trials or appeals. See In re K.R., 63 S.W.3d 796, 800 (Tex.

2001) (holding that “harmless error” rule applies in termination cases); Tex. Dep’t of Human

Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990) (holding that constitutional considerations

do not affect mandate of TEX. R. C IV. P. 277 requiring submission of broad-form jury

questions in civil cases “whenever feasible.”). These conclusions are consistent with the

legislature’s determination that suits affecting the parent-child relationship are generally

governed by the same rules of procedure applicable in other civil cases. See T EX. F AM. C ODE

§105.003(a). The court of appeals’s decision incorporating a criminal-law standard is wholly

contrary to the Family Code’s plain language.

        The Family Code expressly allows the trial court to appoint a single attorney to

represent both parents, as long as both parents are entitled to appointed counsel and the court

finds that the interests of the parents are not in conflict. 8 T EX. F AM. C ODE §107.013(b). Any

right to separate counsel under the Family Code based on a conflict of interest is therefore

governed by that statute, and not by the Sixth Amendment. Thus, contrary to the lower

court’s conclusion, the Dosseys did not have a non-waivable, constitutional right to conflict-

free counsel. 56 S.W.3d at 212-13.9


         8. As discussed below in section I.C, the Dosseys affirmatively waived in the trial court any conflict
of interest resulting from the joint representation. See 10 RR 23-27.
         9. The lower court stated: “The waiver to which both parties refer is the waiver a defendant can
make to representation by counsel, i.e., the right to self-representation.” 56 S.W.3d at 212, n.11. However,
this statement is incorrect. The Department’s brief in the court of appeals argued that “[t]he Dosseys waived
any error as to joint representation, where they affirmatively waived any complaint in open court.”

                                                      12
        B.      The Clear Majority of Texas Courts Have Held that Claims of Ineffective
                Assistance of Counsel Do Not Extend to Civil Proceedings.

        The court of appeals’s analysis rests on the assumption that an indigent parent’s

statutory right to counsel in a civil termination proceeding is equivalent to the constitutional

right to effective assistance of counsel afforded in criminal proceedings. B.L.D., 56 S.W.3d

at 211-12. As discussed previously, this premise is simply incorrect.

        Moreover, consistent with the wholly civil nature of parental-rights termination cases,

six courts of appeals have held that claims of ineffective assistance of counsel cannot be

raised in appeals of termination judgments. See In re A.R.R., 61 S.W.3d 691, 695 (Tex.

App.    Fort Worth 2001, pet. denied); In re B.B., 971 S.W.2d 160, 172 (Tex.

App.    Beaumont 1998, pet. denied); Arteaga v. Tex. Dep’t of Prot. & Reg. Servs., 924

S.W .2d 756, 762 (Tex. App.         Austin 1996, writ denied); In re J.F., 888 S.W.2d 140, 143

(Tex. App.     Tyler 1994, no writ); Krasniqi v. Dallas County Child Prot. Servs. Unit, 809

S.W.2d 927, 932 (Tex. App.          Dallas 1991, writ denied); Posner v. Dallas County Child

Welfare Unit, 784 S.W.2d 585, 588 (Tex. App.               Eastland 1990, writ denied); Howell v.

Dallas County Child Welfare Unit, 710 S.W.2d 729, 735 (Tex. App.               Dallas 1986, writ ref’d

n.r.e.); see also Walton v. City of Midland, 24 S.W.3d 853, 862 (Tex. App.              El Paso 2000,

no pet.) (ineffective assistance of counsel inapplicable in civil cases). In contrast, only one

other appellate decision      which was not appealed to this Court         supports the Waco court’s

conclusion in this case. See In re J.M.S., 43 S.W.3d 60 (Tex. App.                Houston [1st Dist.]


Department’s Brief at 10 (emphasis added). Thus, the Department properly raised the issue of the Dosseys’
waiver of any error resulting from the joint representation.

                                                   13
2001, no pet.).

       The present case and J.M.S. are both contrary to the majority of appellate decisions

on this issue. Moreover, these cases were wrongly decided because they erroneously

conclude that the limited statutory right to unconflicted counsel includes a non-waivable,

constitutional right to unconflicted counsel derived from the Sixth Amendment right to

effective assistance of counsel.

       C.      An Indigent Parent’s Statutory Right to Appointed Counsel Does Not
               Include a Non-W aivable Right to Separate Counsel.

       The court of appeals assumed that the legislature’s decision to provide a limited

statutory right to appointed counsel in termination cases obligated it to also provide the same

panoply of rights that accompany the constitutional right to appointed counsel in criminal

cases. But because the Sixth Amendment protections provided in criminal proceedings do

not extend to this civil action, see supra, section I.A, there is no basis for the court’s holding.

       Instead, Texas statutes and rules, not the Sixth Amendment, set out the parameters for

the conduct of the attorney-client relationship. See T EX. F AM. C ODE §107.013; T EX.

D ISCIPLINARY R. P ROF’L C ONDUCT 1.06(c). Although parental-right termination cases are

afforded due-process protections, see Lassiter, 452 U.S. at 24-25, 33-34, Texas courts “do

not have the right to require the expenditure of taxpayer funds from county coffers to give

elevated protections that [they] may like to have imposed, but are not required, to meet

minimum due process requirements.” In re E.L.Y., 69 S.W.3d 838, 843 (Tex. App.              Waco

Mar. 27, 2002, no pet.) (Gray, J., dissenting) (disagreeing that appointed counsel in



                                                14
termination cases are required to submit Anders briefing to show that parent’s appeal is

frivolous); see also In re C.W., 65 S.W.3d 353, 354 (Tex. App.      Beaumont 2002, no pet.)

(although due process requires notice and an opportunity to be heard, there is no

constitutional requirement that a parent be in the courtroom during termination hearing and

participation by telephone did not violate due process).

       Similarly, in habeas corpus proceedings, there is no constitutional requirement that

counsel be appointed to indigent prisoners. See Pennsylvania v. Finley, 481 U.S. 551, 555

(1987). Instead, the right to appointed counsel arises, as it does in termination proceedings,

from statute. Because there is no constitutional right to appointed counsel, “a [habeas]

petitioner cannot claim constitutionally ineffective assistance of counsel in such

proceedings.” Coleman v. Thompson, 501 U.S. 722, 752 (1991); see also Ex parte Graves,

70 S.W.3d 103, 110-114 (Tex. Crim. App. 2002) (citing, among other cases, Finley, 481 U.S.

at 555, and Coleman, 501 U.S. at 752).

       The present situation is analogous. Just as convicted prisoners have no constitutional

right to appointed counsel in post-conviction habeas proceedings, there is no constitutional

right requiring the appointment of counsel to indigent parents in every termination

proceeding. This lack of a constitutional right to counsel results in the defendant’s inability

to claim that the assistance of that counsel was ineffective. Similarly, while Texas has opted

to provide indigent parents appointed counsel in termination cases, that statutory right does

not include a non-waivable right to separate counsel. This Court should not overturn well-




                                              15
established principles of constitutional law by a creating a non-waivable “right” that has

never existed under either the Federal Constitution or the Texas Constitution.

       The Dosseys argue that the State, having chosen to provide indigent parents with

appointed counsel in termination cases, is constitutionally obligated to allow claims of

ineffective assistance of counsel to be raised on appeal. Resp. to Pet. for Review at 7-8.

However, the United States Supreme Court, in rejecting the similar argument that a state’s

decision to provide discretionary review to convicted criminals without providing appointed

counsel violated the Fourteenth Amendment, stated:

       The Fourteenth Amendment does not require absolute equality or precisely
       equal advantages, nor does it require the State to equalize economic
       conditions. It does require that the state appellate system be free of
       unreasoned distinctions, and that indigents have an adequate opportunity to
       present their claims fairly within the adversary system.

Ross v. Moffitt, 417 U.S. 600, 612 (1974) (internal citations omitted). As a matter of

constitutional law, it is clear that the State’s decision to statutorily provide a legal benefit that

is not constitutionally required does not transform that benefit into a non-waivable

constitutional right.

       Although habeas proceedings are technically civil, they address a person’s

fundamental right to not be unconstitutionally incarcerated; thus, even greater personal rights

are at stake than in the context of termination proceedings, which do not threaten a person’s

liberty interests and thus do not implicate the Sixth Amendment right to counsel. Moreover,

the Dossey’s claim to a non-waivable “right” to unconflicted counsel is premised entirely on

the Sixth Amendment right to counsel in the criminal-law context. But the statutory


                                                 16
provision of counsel to indigent parents in termination cases does not trigger the obligations

that accompany a criminal defendant’s Sixth Amendment right to counsel. Thus, the

statutory right to counsel in termination cases does not include either a non-waivable right

to separate counsel or the right to claim ineffective assistance of such counsel.

       D.     The Dosseys Affirmatively Waived Any Error by Requesting Joint
              Representation.

       As noted above, the Family Code allows the trial court to appoint joint counsel in

termination cases if it finds no conflict of interest between the parents involved. T EX. F AM.

C ODE §107.013(b). Although §107.013 does not itself indicate whether conflicts of interest

may be waived, this Court has held that attorney conflicts of interest in civil cases are

governed by the Texas Disciplinary Rules of Professional Conduct, and complaints based on

violations of those rules are waived if not timely raised. See Vaughan v. Walther, 875

S.W.2d 690, 691 (Tex. 1994); accord Arteaga v. Tex. Dep’t of Protective & Regulatory

Servs., 924 S.W.2d 756, 762-63 (Tex. App.       Austin 1996, writ denied).

              1.      The Dosseys affirmatively and knowingly waived any conflict of
                      interest arising from the joint representation.

       The Texas Disciplinary Rules of Professional Conduct provide that a lawyer may

represent a client despite the existence of a conflict of interest if: (1) the lawyer reasonably

believes the representation of each client will not be materially affected; and (2) each

affected or potentially affected client consents to such representation after full disclosure of

the existence, nature, implications, and possible adverse consequences of the common

representation. See T EX. D ISCIPLINARY R. P ROF’ L C ONDUCT 1.06(c). The record clearly


                                              17
reflects: (1) that Gerald Villareal, the Dossey’s appointed trial counsel, informed the trial

court that he could adequately represent both Spring and Jimmy because they were not

adverse parties and had substantially similar interests; and (2) that Jimmy and Spring both

made an informed, in-court waiver of any conflict of interest relating to the joint

representation. 10 RR 22-27.        Thus, the record demonstrates that the Dosseys made

affirmative, effective waivers of their statutory right to unconflicted counsel.

              2.      A request for separate trials by jointly represented parents is not
                      sufficient to preserve error when a request for appointment of
                      separate counsel was not made.

       The Rules of Appellate Procedure require that for error to be preserved for appeal, the

trial court must have been informed of the error and either made a ruling on the relief

requested or refused to do so. See T EX. R. A PP. P. 33.1(a); see also Fortune Production Co.

v. Conoco, Inc., 52 S.W.3d 671, 681 (Tex. 2000) (holding that argument not raised before

trial court was waived on appeal under Rule 33.1(a)). The Dosseys not only affirmatively

waived any conflict of interest relating to the joint representation, but also failed to preserve

error by making a timely objection to the joint representation.

       The court of appeals concluded, without citation, that Mr. Villareal’s motion for

separate trials should be treated as a motion for separate counsel for purposes of preserving

error. See 56 S.W.3d at 209. However, the two motions seek different relief and may be

made for entirely distinct purposes.       The fact that some of the problems with joint

representation the Dosseys now complain of might have been eliminated by separate trials

does not mean that the trial court erred in failing to appoint separate counsel. The Dosseys


                                               18
never requested separate counsel; to the contrary, they affirmatively waived any conflict of

interest resulting from joint representation. Therefore, the trial court did not err in failing to

appoint separate counsel. See Arteaga, 924 S.W.2d at 762-63 (parent’s complaint of

counsel’s conflict of interest in termination trial held waived when raised for first time on

appeal). Nor can the trial court’s failure to appoint separate counsel be said to constitute

“fundamental error,” as this Court has held that fundamental error is rare and does not exist

when a party has waived, consented to, or neglected to complain about an error at trial. See

Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982) (per curiam). The court of appeals’s

contrary conclusion was erroneous and is not supported by the caselaw.

               3.     The court of appeals erroneously relied on a juror’s affidavit
                      regarding jury deliberations to find that a conflict existed.

       Finally, the court of appeals erred in considering the affidavit testimony of Donald

Gillum, a juror who did not vote to terminate the Dosseys’ parental rights. See CR 262. Mr.

Gillum’s affidavit described matters and statements that took place during the jury’s

deliberations, namely (1) the jurors’ concerns that Spring would likely reunite with Jimmy

if they did not vote for termination as to both parents, and (2) Mr. Gillum’s opinion that the

jury would not have terminated Spring Dossey’s parental rights if the Dosseys had been

granted separate termination proceedings. See id. However, such testimony is prohibited by

Rule 606(b) of the Texas Rules of Evidence, and it does not fall into either of the exceptions

pertaining to “outside influences” provided by that rule. T EX. R. E VID . 606(b); see also

Golden Eagle Archery, Inc. v. Jackson, 24 S.W.3d 362, 370 (Tex. 2000) (juror affidavits



                                               19
inadmissible to prove jurors engaged in improper speculation). Similarly, Rule 327(b) of the

Rules of Civil Procedure specifically bars affidavit testimony of alleged jury misconduct

when such testimony is inadmissible under Rule 606(b). T EX. R. C IV. P. 327(b).

       After the Dosseys submitted Mr. Gillum’s affidavit in their motion for new trial, the

Department objected at a hearing on the motion and the trial court sustained the objection.

17 RR 19. As the trial court correctly concluded, the affidavit was inadmissible under Rule

327(b) because it did not pertain to any “outside influence” as contemplated by Rule 606(b).

The court of appeals offered no explanation as to how the jurors’ discussions and

deliberations about the case   none of which took place outside of the jury room or involved

unauthorized persons    could be said to involve “outside influences.” Indeed, the dissenting

justice in the court of appeals noted the impropriety of the majority’s reliance on Mr.

Gillum’s affidavit. See 56 S.W.3d at 221 (Gray, J., dissenting). It was erroneous for the

court of appeals to rely upon juror testimony that the trial court had correctly excluded.

       However, even if this testimony were admissible     which it clearly was not   it would

not support the Dosseys’ contention on appeal that the trial court erred by failing to appoint

separate counsel. Mr. Gillum’s affidavit states: “Although Spring Dossey testified that she

would leave Jimmy Dossey if our jury terminated his rights and not her rights, many

members of our jury were worried that if they did not terminate as to Spring Dossey, she

would reunite with Jimmy Dossey at a later date.” CR 262. Accepting as true Mr. Gillum’s

assertion that the jury believed that Spring would likely reunite with Jimmy   a claim that is




                                             20
supported by the jury’s finding that both Dosseys’ parental rights should be terminated                   it

is wholly unclear how separate trials or separate counsel would have changed this belief.

        The court of appeals relied on M r. Gillum’s statement: “it is my opinion that if Spring

Dossey had been tried without Jimmy Dossey, our jury would not have terminated her

parental rights.” Id. However, this conclusion represents only a single juror’s opinion, not

the consensus of the entire jury. Moreover, it is inconsistent with the jury’s conclusion that

Spring was likely to reunite with Jimmy if his parental rights were terminated. Although

Spring claimed that she would leave Jimmy if the jury terminated his rights without

terminating hers, the jury was free to disbelieve her testimony. This is especially true given

Spring’s admitted falsehoods concerning how Bryan was burned, her evident dishonesty

regarding other important issues such as Jimmy’s physical abuse, her inability or

unwillingness to acknowledge Jimmy’s drug use and sexually inappropriate behavior, and

her testimony at trial that     abundant evidence to the contrary notwithstanding             Jimmy was

a good husband and father. 10

        As Dr. Shinder testified, one of Spring’s major deficits in her parenting skills was her

inability to recognize potential dangers to her children. 14 RR 161. Thus, while the evidence

at trial revealed many more affirmative bad acts on Jimmy’s part than Spring’s, the jury

found that, in keeping with her past history, Spring was likely to continue endangering her

children by exposing them to her physically abusive, drug-using, and dishonest husband. The


        10. This evidence also supports the conclusion that any error in failing to appoint separate counsel
was harmless. See TEX . R. APP . P. 44.1(a); see also In re K.R., 63 S.W.3d 796, 800 (Tex. 2001) (holding
that “harmless error” rule applies in termination cases).

                                                    21
court of appeals failed to explain how the inadmissible affidavit testimony of a single juror

could override the jury’s amply supported conclusion on this issue.11 The court of appeals’s

reliance on Mr. Gillum’s affidavit testimony was clearly erroneous.

II.     T HE C OURT OF A PPEALS E RRED IN H OLDING THAT THE J URY C HARGE WAS
        F ATALLY D EFECTIVE.

        The court of appeals also erroneously held that due process requires that the jury

charge in a parental-rights termination case “cannot be submitted in the disjunctive, at least

not without sufficient instructions to require the jury to agree by ten or more jurors which

ground, if any, was committed by each parent with respect to each child.” 56 S.W.3d at 218-

19. The majority concluded that “[b]ecause it is possible under the evidence in this case that

less than ten jurors found that any of the statutory grounds for termination occurred, harm

is presumed.” Id. at 219.

        However, as the dissenting justice noted, the majority’s conclusion contradicts this

Court’s holding in Texas Department of Human Services v. E.B., 802 S.W.2d 647 (Tex.

1990). B.L.D., 56 S.W.3d at 221 (Gray, J., dissenting). Instead of following E.B., the court

of appeals determined that this Court’s recent holding in Crown Life Ins. Co. v. Casteel, 22

S.W.3d 378 (Tex. 2000), altered the state of the law regarding jury charge issues in

termination cases. This conclusion was simply wrong.12


         11. The fact that Spring and Jimmy continue to jointly seek reversal of the trial court’s decision, and
thereby request the return of their children to both of them, further supports the jury’s conclusion that Spring
will continue to endanger the children by encouraging her husband to remain as a primary caregiver.
         12. Instead of applying the abuse of discretion standard this Court has established for jury charge
error in termination cases, the court of appeals applied a constitutional due process standard derived from
criminal law cases: “Because of the heightened scrutiny in termination cases, we are always mindful of
whether the manner in which the jury is charged on ‘core’ issues is constitutional.” B.L.D., 56 S.W.3d at 216.

                                                      22
        A.      Crown Life Did Not Overrule E.B.

        Crown Life involved the submission of both valid and invalid theories of deceptive

trade practices liability together in a single broad-form question. Crown Life, 22 S.W.3d at

387-90. As the Crown Life court observed, it may not be “feasible” under Rule 277 to submit

broad-form jury questions where the governing law is unsettled or when the trial court is

unsure whether a particular theory of liability is valid. Id. at 390. However, no question of

invalid theories of liability exists in the present case; the Dosseys have not challenged the

constitutionality of the statutory grounds for termination presented to the jury. Therefore,

the lower court’s conclusion          that Crown Life effectively overruled E.B.’s approval of

broad-form submission          is erroneous.

        B.      The Jury Charge Tracks the Statutory Language of the Family Code.

        The charge submitted in this case properly instructed the jury that the parent-child

relationship could be terminated if (1) termination was in the child’s best interest, and (2) if

the parent had either:

        (a)     knowingly placed or knowingly allowed the children to remain in
                conditions or surroundings which endanger the physical or emotional
                well-being of the children; or
        (b)     engaged in conduct or knowingly placed the children with persons who
                engaged in conduct which endangers the physical or emotional well-
                being of the children.

16 RR 96-97. Paragraphs (a) and (b) set forth above track the statutory language of two of



The lower court also applied a constitutional analysis to formulate a rule that “in termination cases, due
process requires a strict application of Rule 292’s requirement of accord by ten or more jurors.” Id. at 217.
However, the E.B. court rejected the notion that the nature of the termination suit alters the form of the
charge submitted to the jury. E.B., 802 S.W.2d at 649.

                                                     23
the termination grounds listed in the Family Code. See T EX. F AM. C ODE §161.001(D),(E).

The charge and the broad-form questions submitted also conform to the Pattern Jury Charge

recommendations. See C OMM. ON P ATTERN J URY C HARGES, S TATE B AR OF T EX., T EXAS

P ATTERN J URY C HARGES PJC 218.1B and Comment (2000 ed.).

       C.     The Jury Charge Was Consistent with Rules 277 and 292 as Interpreted
              by this Court.

       Rule 277 provides: “In all jury cases the court shall, whenever feasible, submit the

cause upon broad-form questions.” TEX. R. C IV. P. 277. Rule 292 states that a verdict may

be rendered in any cause by the concurrence, as to each and all answers made, of the same

ten members of an original jury of twelve. T EX. R. C IV. P. 292.

       The court of appeals concluded that Rule 292 forbids the submission of a disjunctive

jury charge that instructs on more than one statutory ground for termination but does not

require the jury to make separate findings on each ground. 56 S.W.3d at 218-19. However,

this Court squarely rejected that argument in E.B.. E.B., 802 S.W.2d at 649. Although the

court of appeals acknowledged this Court’s holding in E.B., it failed to recognize that E.B.

is controlling authority on the jury charge issue presented in this case.

       The statutory grounds presented to the jury in E.B are identical to those presented to

the jury in this case; in addition, as the lower court acknowledged, the jury charge language

in this case is “virtually identical” to the language in the jury charge at issue in E.B. 56

S.W.3d at 215. In E.B., this Court held that “Rule 277 mandates broad form submission

‘whenever feasible,’ that is, in any or every instance in which it is capable of being



                                             24
accomplished.” 802 S.W.2d at 649. The Court noted that the controlling question was

whether the parent-child relationship between the parent and each of her two children should

be terminated, not what specific statutory ground the jury relied on to affirmatively answer

the questions posed. Id. The verdict was sufficient because “ten jurors agree[d] that the

mother had endangered the child by doing one or the other of the things listed in [Family

Code] §15.02 [now §161.001].” Id.

       The jury charge in the present case is indistinguishable from that in E.B. Here, as in

E.B., the trial court instructed the jury that it could find for termination if (1) it determined

that such would be in the child’s best interest, and (2) it found an occurrence of one or both

of the two statutory grounds set forth in the jury instructions. As to both Jimmy and Spring,

at least ten jurors answered each of the above issues affirmatively. In accordance with this

Court’s holding in E.B., the jury charge submitted by the trial court was proper. The court

of appeals’s contrary conclusion “fl[ies] in the face of existing Texas Supreme Court

precedent on this issue.” 56 S.W.3d at 221 (Gray, J., dissenting).

       The court of appeals held that broad-form questions are inappropriate in parental-

rights termination trials. However, this Court has already rejected that argument, noting:

“Broad-form questions reduce conflicting jury answers, thus reducing appeals and avoiding

retrials. Rule 277 expedites trials by simplifying the charge conference and making questions

easier for the jury to comprehend and answer.” E.B., 802 S.W.2d at 649. By ignoring Rule

277's mandate, the court of appeals’s holding does precisely the opposite: it encourages

conflicting jury answers, necessitating additional appeals and retrials. The court of appeals’s


                                               25
belief that Rule 277 should be ignored in termination suits must not be permitted to

undermine this Court’s well-established decision to the contrary.

        D.      The Low er Court’s Holding Is Inconsistent w ith Decisions of Other Texas
                Appellate Courts.

        The standard applied by the court of appeals not only contravenes binding precedent

from this Court, but is also inconsistent with decisions from other intermediate appellate

courts of this state, including another recent decision from the Waco Court of Appeals. In

In re J.F.C., 57 S.W.3d 66 (Tex. App.          Waco 2001, pet. granted) (No. 01-0571), the Waco

court rejected a jury charge challenge similar to the Dosseys’ argument in this case. The jury

in J.F.C. had been instructed that the mother’s parental rights could be terminated if the jury

found the existence of either of two statutory grounds. On appeal, the parents argued that the

jury instructions were defective because they allowed for the possibility of a termination

verdict without at least ten jurors agreeing which of the two statutory grounds had occurred.

Id. at 70. The court of appeals rejected this argument, recognizing that E.B. had approved

the use of such disjunctive questions; the court also noted that the disjunctive submission

form is recommended by the Texas Pattern Jury Charges.13 Id. at 73. Inexplicably, the same

judicial panel that rejected this argument in J.F.C. sustained the Dossey’s similar complaint

less than one week later without any mention of its contrary holding in J.F.C. on this issue.




        13. While the Waco court correctly applied E.B. in the J.F.C. case, it reversed the judgment of
termination on an unrelated issue pertaining to the jury charge. See 57 S.W.3d at 74-75 (No. 01-0571). On
March 21, 2002, this Court granted the Department’s petition for review in J.F.C., which challenged the
court of appeals’s holding on that issue, as well as its conclusion that it was proper to review unpreserved
complaints of jury charge error.

                                                    26
       In another recent case, the First Court of Appeals in Houston also rejected the

argument that parental rights cannot be terminated based upon a broad-form charge in which

the jury is not required to make a specific finding for each ground alleged for termination.

See In re M .C.M ., 57 S.W.3d 27, 30 (Tex. App.       Houston [1st Dist.] 2001, pet. denied).

Following E.B., the Houston court recognized this Court’s approval of the disjunctive

submission of alternative grounds for termination as well as the broad-form submission of

the controlling issue, i.e., whether the parent-child relationship should be terminated. Id. at

31. In affirming the judgment of termination, the court cited with disapproval the Waco

court’s holding in the present case, observing that it was contrary to the controlling precedent

established by E.B. Id. at 31 n.2.

       E.     The Dosseys Waived Any Error by Not Objecting to the Charge.

       Even if the jury charge had been defective     which it was not    the Dosseys waived

any error by failing to raise any objections at the charge conference or at any other time

before the charge was submitted to the jury. Rule 274 of the Rules of Civil Procedure

provides, in pertinent part: “A party objecting to a charge must point out distinctly the

objectionable matter and the grounds of the objection. Any complaint as to a question,

definition, or instruction, on account of any defect, omission, or fault in pleading, is waived

unless specifically included in the objections.”      T EX. R. C IV. P. 274.    At the charge

conference following the close of evidence, the Dosseys’ trial counsel affirmatively stated

that he had no objections to the charge. 16 RR 89-90.




                                              27
       As announced by this Court, the test for determining if a party has preserved error in

the jury charge is “whether the party made the trial court aware of the complaint, timely and

plainly, and obtained a ruling.” State Dep’t of Highways & Pub. Transp. v. Payne, 838

S.W.2d 235, 241 (Tex. 1992). The Dosseys failed to preserve error under Payne because at

no time prior to the submission of the jury charge did they make objections or submit

modifications to the charge, either orally or in writing. Thus, even if the charge had been

defective, the Dosseys waived any objection by failing to timely raise this issue. See T EX.

R. C IV. P. 274; T EX. R. A PP. P. 33.1(a).

       The court of appeals concluded that it should review unpreserved complaints about

charge error pertaining to core issues in termination cases, namely (1) whether the statutory

grounds for termination are met, and (2) whether termination is in the child’s best interest.

56 S.W.3d at 215 (citing J.F.C., 57 S.W.3d 66). However, the Rules of Appellate Procedure

do not provide an exception to the waiver rule for these or any other specific issues. Nor has

this Court ever held that the significant constitutional dimension of termination cases

precludes waiver of complaints about charge error pertaining to core termination issues.

       Less than one year ago, this Court held that a trial court’s decision to place a parent

in shackles during a trial that resulted in the termination of his parental rights was subject to

the “harmless error” rule. See K.R., 63 S.W.3d at 800; T EX. R. A PP. P. 44.1(a). In so

holding, the Court reversed the court of appeals’s conclusion that applying the “harmless

error” rule to so serious an error would inadequately protect the fundamental importance of

the parent-child relationship. In re K.R., 22 S.W.3d 85, 94 (Tex. App.     Houston [14th Dist.]


                                               28
2000 (en banc)), rev’d, 63 S.W.3d 796 (Tex. 2001). K.R. supports the conclusion that Rule

33.1(a)’s “waiver” rule should also be uniformly applied in all civil appeals, including

termination cases. Because the application of Rule 44.1(a)’s “harmless error” rule in

termination cases does not violate a parent’s constitutional rights, no violation of

constitutional rights results from application of Rule 33.1(a)’s “waiver” rule in appeals of

termination cases. Thus, the court of appeals’s judgment should be reversed.

III.   T HE D OSSEYS’ R EMAINING I SSUES A RE W ITHOUT M ERIT .

       If this Court concludes that the court of appeals erred with regard to the two issues

addressed in its opinion, the Department requests that the Court review the Dosseys’ other

issues that were raised to, but not addressed by, the court of appeals. See T EX. R. A PP. P.

53.4. Addressing these additional issues will promote judicial economy, since remanding

them to the court of appeals raises the possibility of reversal on new grounds, necessitating

further petitions to this Court. Accordingly, these additional issues are briefed below.

       A.      The Dosseys’ Issues Relating to the Jury Charge and the Form of the
               Verdict Should Be Rejected.

       Before the court of appeals, the Dosseys argued (1) that the jury charge must contain

specific questions regarding whether termination is in the best interest of the child, and (2)

that specific findings on each of the individual statutory grounds for termination are

required.14 See 56 S.W.3d at 208. The court of appeals did not reach these additional issues.

However, the Dosseys’ arguments on these points are essentially the same as their arguments



       14. These were the Dosseys’ third and eighth issues in the court of appeals. See 56 S.W.3d at 208.

                                                  29
regarding the broad-form jury charge discussed in Section II above, and are unpersuasive for

the reasons discussed in that section.

       As this Court observed in E.B., jury issues were once required to be submitted

“distinctly and separately.” 802 S.W.2d at 648. However, Rule 277 was amended in 1973

to allow broad-form submission, and then amended again in 1988 to require broad-form

submission “whenever feasible.” See id. at 649. This Court concluded that the submission

of termination questions in broad form is proper and also required by Rule 277; as long as

“ten jurors agree that the [parent] had endangered the child by doing one or the other of the

things listed in §15.02,” the trial court has neither abused its discretion nor violated the

parent’s constitutional rights. Id.

       In addition, the Waco Court of Appeals itself recently rejected the same arguments

raised by the Dosseys’ unaddressed issues pertaining to the form of the charge and the

termination judgment. “When the jury is otherwise correctly instructed about the grounds

for termination and also about the necessity of termination being in the best interest of the

child, the ultimate question to terminate may be in broad form.” J.F.C., 57 S.W.3d at 73.

As the J.F.C. court recognized, E.B. establishes that the jury charge need not contain specific

questions regarding whether termination is in the best interest of the child. Furthermore, it

would be illogical and impractical to require that the judgment incorporate specific findings

on each of the individual statutory grounds for termination when specific jury findings on

each ground are not required. The Dosseys’ first two previously unaddressed issues should

be rejected.


                                              30
       B.     The Dosseys’ Complaints About Evidentiary Issues Are Without M erit.

       In their second issue before the court of appeals, the Dosseys argued that the trial

court erred in admitting evidence related to Bryan’s scalding because the treating nurse was

not qualified to testify as to whether the scalding was intentional. See Appellant’s Brief at

14-21. In their fifth issue, the Dosseys argued that the trial court should have excluded

various testimony relating to Jimmy’s physical abusiveness and sexual misconduct, as well

as testimony that he served as an informant for narcotics officers. See id. at 32-37. The court

of appeals did not address these evidentiary complaints; however, they are all without merit.

              1.      The trial court did not err in refusing to exclude Nurse Duncum’s
                      testimony.

       Monique Duncum was the registered nurse who treated Bryan when he was taken to

Hillcrest Baptist Medical Center with burns to his foot and ankle in February 1998. Prior to

her testimony before the jury in this case, she testified at a Daubert-type hearing that she had

received training in treating burns, had more than four years of nursing experience in the

emergency room, and had dealt with several dozen burn injuries in her experience there. 14

RR 11. The Dosseys’ trial counsel, Mr. Villareal, agreed that Nurse Duncum could testify

that the “sock mark” on Bryan’s ankle showed that he had suffered an immersion burn, but

he objected to her testifying that the burn was intentionally inflicted. 14 RR 26. Responding

to questioning from the trial court, Nurse Duncum also testified that she had a legal duty to

contact the Department if she had reason to suspect that a child’s injury had been

intentionally inflicted by a parent, and that in Bryan’s case she relied on her training and



                                              31
experience to conclude that Bryan’s burns were not consistent with Spring’s initial story. 14

RR 18, 26. The court then overruled the Dosseys’ pre-testimony objection. 14 RR 26.

       In front of the jury, Nurse Duncum testified that Bryan’s foot had a “sock line” on the

ankle, a mark that results when a foot is immersed in hot, still water, not from contact with

hot, running water.15 14 RR 41-44. Also, Bryan had no splash marks or burn injuries

elsewhere on his body that would indicate that he had been burned by hot, running water.

Id. However, Spring had told Nurse Duncum and others that she awoke from a nap to find

Bryan crying and standing in the sink with the hot water on. 14 RR 40. Nurse Duncum

testified before the jury that when Spring repeated this story at the hospital, it was explained

to Spring that her account was inconsistent with Bryan’s injuries. Mr. Villareal then objected

that Nurse Duncum was not qualified to testify as to whether Bryan’s injuries were consistent

with Spring’s story. 14 RR 41.

       The Dosseys’ arguments on appeal center on their assertion that Nurse Duncum was

not qualified to render this testimony, and that her testimony was implicitly rebutted by other

witnesses who testified that Bryan was an active “climber” and thus potentially capable of

pushing a chair to the sink. See Appellants’ Brief at 15-17. However, the Dosseys’

arguments are waived, because their broad arguments on appeal do not comport with their

more narrow objection made at trial. Furthermore, even if their appellate argument had been

properly preserved, their objections go to the weight of Nurse Duncum’s testimony, not its



       15. This testimony was supported by photographs of Bryan’s injuries, which were introduced in
evidence. See RR at Petitioner’s Ex. 4-6; 14 RR 39.

                                                32
admissibility.

        The Dosseys were free to argue to the jury that Spring’s account could have been

consistent with Bryan’s injuries if he had climbed into the sink, stopped up the drain with his

foot, and received immersion-type burns from the water filling the sink without receiving any

splash-type burns from the water coming out of the faucet. In fact, Mr. Villareal cross-

examined Nurse Duncum regarding this theory, and she acknowledged that it was possible

for Bryan to have been burned in such a manner.16 14 RR 58-60. However, given: (1)

Bryan’s age (15 months at the time of the incident); (2) the absence of splash marks that

would normally be expected on a baby struggling to escape from a sink full of hot, running

water; and (3) the solid “sock line” indicating a dunking or immersion-type burn, it was

clearly within Nurse Duncum’s qualifications to conclude that Bryan’s injuries were

sufficiently inconsistent with Spring’s account to warrant contacting the Department to report

possible child abuse. Moreover, Nurse Duncum testified on cross-examination that because

her obligation to contact the Department was triggered by even a mere suspicion of child

abuse, the fact that the Department subsequently investigated Spring indicated nothing more

than that abuse was suspected. 14 RR 51-52.




        16. The Dosseys’ arguments on appeal focus on Nurse Duncum’s qualifications as an expert witness.
However, these arguments are misplaced, since the jury testimony objected to by the Dosseys was Nurse
Duncum’s statement: “It was explained to [Spring] that [her explanation of how Bryan was burned] was
inconsistent with the injuries.” 14 RR 41. This was actually lay testimony relating what was said to Spring
at the hospital, not expert testimony. The only objection made at trial was that Nurse Duncum was not
qualified to determine whether Bryan’s injuries were consistent with Spring’s explanation. This objection
was correctly overruled because Nurse Duncum was admittedly qualified to testify that Bryan’s injury
appeared to be an immersion-type burn, and Bryan’s injury was inconsistent with the story Spring told at the
hospital.

                                                    33
       Finally, to the extent that the Dosseys raised any other arguments on appeal regarding

Nurse Duncum’s testimony, those arguments were waived because they do not comport with

the objection raised at trial. See T EX. R. A PP. P. 33.1(a).

              2.      The trial court did not err in admitting evidence of various bad acts
                      committed by Jimmy.

       In their fifth issue before the court of appeals, the Dosseys argued that the trial court

erred in admitting evidence that: (1) Jimmy had a “sexual interest” in his children; (2) Jimmy

assaulted Spring in a Wal-Mart parking lot, resulting in his arrest; (3) Jimmy downloaded a

computer image of child pornography; (4) Jimmy served as a drug informant for local

narcotics officers; (5) Jimmy requested sexual favors from Spring in exchange for doing

household chores. Appellants’ Brief at 32-33. In each instance, however, the trial court did

not err, either because the evidence was properly admitted, or because the Dosseys failed to

properly object to its admission, or because any error was harmless. See T EX. R. A PP. P.

33.1(a), 44.1(a).

                      a.     Evidence of Jimmy’s sexual interest in the children.

       When Spring testified at trial, the Department’s lawyer, Mr. Semanek, asked her if she

was concerned that Jimmy had a sexual interest in the children. 14 RR 87. She claimed he

did not, and also denied telling Dr. Shinder that Jimmy had such an interest. 14 RR 87-88.

The Dosseys did not object to either the Department’s questions or Spring’s answers.

However, when Mr. Semanek began to ask Spring, “[s]o if Dr. Shinder were to testify

that   ,” Mr. Villareal objected to this form of impeachment as inappropriate, which objection



                                              34
the trial court sustained. 14 RR 88. Mr. Semanek then abandoned this line of questioning

and asked Spring nothing further about Jimmy’s sexual interest in the children. Id.

       Later at trial, Dr. Shinder testified that, as part of a parenting assessment performed

in March 1998 after the children had been temporarily removed from the Dosseys’ home,

he asked Spring what her greatest concern would be if the children were returned to her and

Jimmy. 14 RR 162. In response, Spring indicated that Jimmy had a “sexual interest” in the

children. Id. However, she refused to elaborate on this statement, and when Dr. Shinder

attempted to elicit additional details, Spring acted as if “maybe she had stated something she

wished she hadn’t.” 14 RR 162. The Dosseys did not object to this testimony. See id.

       On appeal, the Dosseys complain about the Department’s asking Spring at trial

whether Jimmy had a sexual interest in the children. Appellants’ Br. at 32. However, they

did not object when Mr. Semanek asked this question of either Spring or of Dr. Shinder. 14

RR 87, 162. The only objection they made at trial         that it was inappropriate to impeach

Spring with Dr. Shinder’s testimony       was sustained. Because the Dosseys did not object

to Spring or Dr. Shinder’s testimony, nothing is preserved for appellate review. See T EX. R.

A PP. P. 33.1(a).

       The Dosseys’ objection to the question that Mr. Semanek started to ask Spring was

sustained; the question was never asked, and the Dosseys did not move for a mistrial or ask

for an instruction for the jury to disregard the partially asked question. The trial court did not

err in failing to order relief that the Dosseys did not request. Moreover, any error relating to




                                               35
this question was harmless in light of Dr. Shinder’s unobjected-to testimony on the same

point. See T EX. R. A PP. P. 44.1(a).

       The Dosseys also argue that “[n]either Dr. Shinder nor any other witness could testify

that there was any sexual misconduct on the part of the parents,” and “[t]here is no evidence

that Jimmy has been sexually inappropriate with his children.” See Appellants’ Br. at 32, 34.

However, these arguments ignore Dr. Shinder’s testimony that Spring told him that Jimmy

had a sexual interest in the children. Spring’s statement was not hearsay because it was an

admission by a party-opponent. See T EX. R. E VID . 801(e)(2). And even if it were hearsay,

it would still retain its probative value because it was not objected to. See T EX. R. E VID . 802;

see also In re W.C., 56 S.W.3d 863, 870 (Tex. App.          Houston [14th Dist.] 2001, no pet.)

(concluding that unobjected-to hearsay supported termination verdict). Contrary to the

Dosseys’ argument, Spring’s statement constituted some evidence that Jimmy had a sexual

interest in the children.

                      b.      Evidence of Jimmy’s assault on Spring at W al-Mart.

       Mr. Semanek also questioned Spring about Jimmy’s assault on her in a Wal-Mart

parking lot. Spring testified that Jimmy raised a fist to strike her, but at that moment she

slipped on an oil spot and fell to the ground. 14 RR 93-94. However, Kimberly Cox, a Wal-

Mart security employee, testified that she saw Jimmy and Spring drive into the parking lot,

and she could hear them arguing inside the car. 15 RR 17. After they exited the car, she saw

Jimmy chasing Spring around the parking lot, saying “come here, bitch,” until he caught her

and punched her, causing Spring to fall to the ground. 15 RR 19. Bellmead Police Officer


                                                36
Stuart Simons, who was dispatched to the scene, testified that Spring was uncooperative and

refused to answer whether Jimmy had hit her, but Jimmy later acknowledged that he struck

her in the face. 15 RR 13-14. Officer Simons then arrested Jimmy for assault. 15 RR 14.

        In their brief to the court of appeals, the Dosseys stated that Mr. Villareal objected to

evidence of the assault as irrelevant and prejudicial, but presented no argument as to why

such an objection was proper. Appellants’ Br. at 31. A parent’s violent conduct directed at

the other parent, even though not committed in the presence of the children, is evidence

supporting termination under Family Code §161.001(1)(E), one of the statutory grounds in

the jury charge underlying the termination verdict in this case. See In re B.R., 950 S.W.2d

113, 119 (Tex. App.          El Paso 1997, no writ). Moreover, Mr. Villareal only raised this

objection during Spring’s testimony; the Dosseys did not object to the testimony of Ms. Cox

or Officer Simons. Accordingly, the Dosseys waived any evidentiary complaints regarding

Jimmy’s assault on Spring by failing to raise timely objections. See T EX. R. A PP. P. 33.1(a). 17

                        c.       Evidence that Jimmy downloaded child pornography.

        The Dosseys also complain on appeal that the trial court erred in admitting evidence

that Jimmy downloaded a pornographic computer image entitled “Young Fuck” while the

Dosseys were living in the home of Lisa Brewington. Appellants’ Br. at 33. While the

Dosseys argue that the trial court overruled their objection to this evidence, citing 15 RR 64,

no objection appears on this page of the record. Indeed, the Dosseys’ attorney stated that he


        17. Even assuming arguendo that the trial court erred by overruling the Dosseys’ objection to
Spring’s testimony, any error was rendered harmless by the unobjected-to testimony of Ms. Cox and Officer
Simons. See TEX . R. APP . P. 44.1(a).

                                                   37
had no objection to the introduction of the pornographic photograph. See 15 RR 66.

       Moreover, the Dosseys’ brief argued that there was no direct evidence that it was

Jimmy who downloaded the image, that the picture’s title alone did not indicate that it

necessarily depicted a child, and that the timing of Ms. Brewington’s reporting of the picture

to the Department was suspicious. Appellants’ Br. at 35-36. However, these arguments all

go to the weight of the evidence, not its admissibility. If there was any error with regard to

the admission of the pornographic image, the Dosseys failed to preserve error or explain how

the trial court erred.

                         d.   Evidence that Jimmy served as a drug informant.

       The Dosseys argue in their brief that they objected to testimony that Jimmy served as

a drug informant for the Texas State Technical College (“TSTC”) police force.             See

Appellants’ Br. at 33. However, they do not cite to any portion of the record or offer any

argument as to why the admission of such evidence was erroneous. See id. Moreover, while

Sergeant Abdon Rodriguez of the TSTC Police Department testified that Jimmy worked as

an informant for a narcotics task force known as “Agriplex,” he did so under cross-

examination, in response to Mr. Villareal’s questions about Jimmy’s activities as an

informant. See 14 RR 215-16. Not surprisingly, the Dosseys did not object to Sergeant

Rodriguez’s testimony that Jimmy worked as an informant for Agriplex. See id. The

Dosseys invited any error in the admission of this testimony, and therefore have waived any

related complaints. See T EX. R. A PP. P. 33.1(a).




                                             38
                      e.     Evidence that Jimmy requested sexual favors of Spring.

       The Dosseys also complain that Dr. Shinder was permitted to testify, over objection,

that Jimmy committed acts of “sexual misconduct” by requesting sexual favors from Spring

in return for doing household chores. See Appellants’ Br. at 33. However, as the record

citations provided by the Dosseys reveal, Dr. Shinder’s testimony in this regard took place

outside of the hearing of the jury. See 14 RR 143, 146. Because the jury was not exposed

to this testimony, it was not harmful to the Dosseys. See T EX. R. A PP. P. 44.1(a). Their

arguments concerning this evidence and its impact on the jury are therefore misplaced. See

Appellants’ Br. at 33-34.

       C.     The Evidence Is Legally Sufficient to Support Termination as to Both
              Spring and Jimmy Dossey.

       In their third and fourth issues presented to the court of appeals, the Dosseys argued

that the evidence was legally and factually insufficient for the jury to find that either Spring

or Jimmy (1) knowingly placed or knowingly allowed the children to remain in conditions

or surroundings which endanger the physical or emotional well-being of the children; or (2)

engaged in conduct or knowingly placed the children with persons who engaged in conduct

which endangers the physical or emotional well-being of the children. See Appellants’ Br.

at 21-31; T EX. F AM. C ODE §161.001(1)(D), (E). This Court lacks jurisdiction to conduct a

factual sufficiency review. See City of Fort Worth v. Zimlich, 29 S.W.3d 62, 71 (Tex. 2000);

Read v. Scott Fetzer Co., 990 S.W.2d 732, 736-37 (Tex. 1998). Accordingly, only the legal




                                              39
sufficiency of the evidence supporting the termination of Jimmy and Spring’s parental rights

is discussed below.

        This court reviews challenges to the legal sufficiency of the evidence by considering

only the evidence and inferences that tend to support the finding and disregarding all contrary

evidence and inferences. See, e.g., Cont’l Coffee Prods. v. Cazarez, 937 S.W.2d 444, 450

(Tex. 1996); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). The jury’s findings will

be upheld if they are supported by more than a scintilla of evidence. See Leitch v. Hornsby,

935 S.W.2d 114, 118 (Tex. 1996); Stafford v. Stafford, 726 S.W.2d 14, 16 (Tex. 1987).

These standards of review apply in parental-rights termination cases.18 See In re J.C.M.A.,

31 S.W.3d 692, 696 (Tex. App.           Houston [1st Dist.] 2000, no pet.); In re J.M.T., 39 S.W.3d

234, 238 (Tex. App.       Waco 1999, no pet.); Dupree v. Tex. Dep’t of Protective & Regulatory

Servs., 907 S.W.2d 81, 83 (Tex. App.              Dallas 1995, no writ); see also In re M.C., 917

S.W.2d 268, 270 (Tex. 1996) (applying standard no evidence review in parental rights

termination case).

        As used in Family Code §161.001, “endanger” means “to expose to loss or injury; to

jeopardize.” M.C., 917 S.W.2d at 269; Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531,

533 (Tex. 1987). Although endangerment means more than a threat of metaphysical injury



        18. The Department recognizes that the Court has granted review of another case to address whether
the “clear and convincing” burden of proof at trial alters the standards for legal sufficiency review applied
by the reviewing court on appeal. See In re C.H., 44 Tex. Sup. Ct. J. 433 (Feb. 15, 2001) (granting State’s
petition for review). While the Department maintains that the standard is unchanged, that issue is not
determinative of the appeal in this case. The Dosseys have not argued that a higher legal standard should
be applied. See Appellants’ Br. at 22-23. Moreover, the evidence is legally sufficient to support termination
as to both parents regardless of whether a heightened standard of appellate review is required.

                                                     40
or the possible ill effects of a less-than-ideal family environment, it is not necessary that the

conduct be directed at the child or that the child actually suffer injury. See id. Endangerment

to the child under section 161.001 can be evidenced not only by the parent’s acts but also by

the parent’s omissions. Dupree, 907 S.W.2d at 83-84.

              1.       Legal sufficiency with regard to Jimmy.

       Abundant evidence established that Jimmy engaged in conduct that endangered the

physical and emotional well-being of the children. First, Jimmy consistently showed

disregard for the law and committed serious criminal acts, often while the children were in

the house. For instance, he broke into a neighbor’s house and stole a gun; he also stole a

bicycle and brought it home. Jimmy admitted to using cocaine and “acid” in his youth, and

even after the children had been temporarily removed from the house, he tested positive three

times for marijuana use and once for methamphetamines.                He also downloaded a

pornographic image      which was described as child pornography        at the home of a friend

with whom he and his family were living, and admitted to viewing pornography while the

children were in the house. More seriously, Spring indicated that Jimmy had a sexual interest

in his own children.

       Jimmy was also physically abusive of Spring, and would punch her and kick her.

While both Dosseys tried to downplay the frequency and seriousness of this abuse, they both

admitted that it happened, and their evasiveness and contradictory answers on the subject

indicated that it was likely much worse than either acknowledged. Even after their children

had been temporarily removed, Jimmy’s abusive nature revealed itself in public at a Wal-


                                               41
Mart parking lot, resulting in his arrest on assault charges. And while Jimmy denied either

physically or verbally abusing his children, Jeremy Terry’s testimony that he heard Jimmy

shouting at them nightly and heard them crying for long periods at night demonstrated

Jimmy’s claim to be untrue.

       Finally, Jimmy’s unfitness for parenthood was also revealed through his lack of

responsibility toward his family. He was generally unemployed, and was unwilling to seek

work because he did not want to risk losing his disability payments. And while he claimed

that his heart condition kept him from working, it did not prevent him from serving as an

police informant for illegal drug deals, which testimony indicated was a very stressful and

potentially dangerous activity. Nor did his heart condition prevent him from using illegal

drugs, including methamphetamines.

       Illegal drug use will support a finding of termination under §161.001(1)(D) and (E).

See Trevino v. Tex. Dep’t of Protective & Regulatory Servs., 893 S.W.2d 243, 251 (Tex.

App.   Austin 1995, no writ) (evidence of parent’s criminal conviction, violent temper,

inability to hold a job, and illegal drug use supported termination); In re W.A.B., 979 S.W.2d

804, 807 (Tex. App.    Houston [14th Dist.] 1998, pet. denied) (parent’s criminal history and

illegal drug use supported termination). While many of Jimmy’s acts arguably would not,

in isolation, be sufficient grounds for termination, the cumulative evidence of his illegal and

dangerous behavior, domestic violence, and general neglect of his children is more than the




                                              42
scintilla necessary to support the jury’s finding.19 This conclusion was further supported by

his consistent course of misconduct even after the children had been removed several

times    most notably his continued drug use and his arrest for assaulting Spring in public.

Moreover, his demonstrated unwillingness to improve his parental behavior, as evidenced

by his behavioral history and his belief that his parenting skills were “fairly normal,” further

supported the termination verdict. 14 RR 227.

                2.      Legal sufficiency with regard to Spring.

        The Dosseys also argue that there is no evidence “of any act of omission or abuse by

Spring Dossey against the children.” Appellants’ Br. at 28 (emphasis in original). This

argument is wrong for at least two distinct reasons. First, the serious injuries suffered by

Brandon and Bryan demonstrated Spring’s endangerment through her parental negligence

or deliberate abuse. Second, Spring endangered her children by failing to recognize the

danger presented by Jimmy and continuing to expose them to his parental care.

        Although much of the evidence did not show that Spring was intentionally abusive,

the Dosseys’ argument ignores the fact that Spring’s negligent care of Brandon led to a

fractured skull shortly after he was born. Their argument also ignores the incident in 1998

in which Bryan had to be rushed to the emergency room for severe burns to his foot. While

the Dosseys repeatedly urge that Spring was effectively “cleared” of any intentional

wrongdoing with regard to Bryan’s injuries by virtue of the fact that her children were later


        19. Indeed, the Dosseys spend fewer than two pages of briefing contesting the legal sufficiency of
the evidence with regard to Jimmy, compared to more than five pages of briefing devoted to contesting the
evidence against Spring. See Appellants’ Br. at 25-31.

                                                   43
returned to her, the jury heard abundant testimony that supports a contrary conclusion. As

discussed above, Spring admitted that she provided at least one false account of the incident.

Moreover, the explanation that the Dosseys implicitly presented at trial    that 15-month old

Bryan pushed a chair to the sink, climbed in and turned on the hot water, blocked the drain

with his foot, and thereby received immersion-type burns without receiving a single splash-

type burn or any other injuries    was an incredible tale that was retrospectively spun to

“explain away” the contradiction between Bryan’s burns and Spring’s original account of

how he received them.

       Even if the jury believed Spring’s claim that the burns were accidental, this incident

was one of two very serious injuries to the children, evidencing Spring’s endangerment by

neglect or omission. “[N]eglect can be just as dangerous to the well-being of a child as direct

physical abuse.” M.C., 917 S.W.2d at 270. The Department was not required to wait until

either Brandon or Bryan was seriously harmed again before taking action to protect them.

       There was also abundant evidence that Spring endangered her children by continuing

to expose them to her violent, drug-abusing, dishonest husband. While Spring claimed that

she would leave Jimmy if his parental rights but not hers were terminated, the jury did not

believe her. And they had good reason to disbelieve her: Spring tolerated and lied about

Jimmy’s physical abusiveness, refused to acknowledge or address his drug use and sexual

misconduct, saw nothing wrong with his working as a drug informant despite his serious

heart condition, and testified that he was a good husband and father. Moreover, she chose

to remain with him through years of rocky marital life, through a trial in which many of his


                                              44
various misdeeds were exposed to public light, and even now on appeal as they remain united

and jointly seek to reverse the trial court’s order separately terminating their parental rights.

        The evidence at trial supported Dr. Shinder’s testimony that Spring is incapable of

perceiving dangers to her children. Because the purpose of the termination proceeding was

to protect Brandon and Bryan and not to punish either Spring or Jimmy, it is largely

irrelevant that most of the affirmative acts of endangerment were attributable to Jimmy alone.

The evidence is legally sufficient to support the judgment of termination as to both Spring

and Jimmy.

                                     CONCLUSION AND PRAYER

        The court of appeals’s holdings have spawned confusion among practitioners and

judges alike on issues thought to be long-settled.20 This uncertainty will cloud termination

trials and encumber the appellate process, which is untenable in cases such as these that are

particularly time-sensitive. For instance, adoption is available for many children who are

involved in termination proceedings, but delays in the trial and appellate processes prolong

placement with a foster family. Because the court of appeals held that E.B. is no longer good

law, it created a time bomb that is ticking in almost every termination judgment based on a




        20. For example, the Dosseys’ response to the Department’s petition for review states that, following
the court of appeals’s holdings on the jury charge issue, one district court now routinely submits separate jury
questions on each ground for termination. See Resp. to Pet. for Review at 12 n.6. However, such action
contravenes Rule 277’s mandate that broad-form questions be submitted “whenever feasible.” TEX . R. CIV .
P. 277. That several narrow-form jury charges have resulted in termination verdicts does not alter this
Court’s holding that Rule 277 must be followed in termination trials. See E.B. 802 S.W.2d at 649.

                                                      45
jury verdict. Addressing the lower court’s decision will provide valuable guidance and

prevent uncertainty in termination cases.

       Accordingly, the Department requests that this Court grant review, reverse the

judgment of the court of appeals, and remand this case to the court of appeals to address the

remaining issue of factual insufficiency raised in that court. In the alternative, the Court

should reverse and remand for the court of appeals to address the Dosseys’ issues that were

not previously addressed.




                                             46
Respectfully submitted,

JOHN CORNYN
Attorney General of Texas

HOWARD G. BALDWIN, JR.
First Assistant Attorney General




_____________________________
JULIE CARUTHERS PARSLEY
Solicitor General
State Bar No. 15544920

JOSEPH D. HUGHES
Assistant Solicitor General
State Bar No. 24007410

Office of the Attorney General
P. O. Box 12548 (MC 059)
Austin, Texas 78711-2548
[Tel.] (512) 936-1700
[Fax] (512) 474-2697

A TTORNEYS FOR P ETITIONER




 47
                               CERTIFICATE OF SERVICE

       I, Joseph D. Hughes, certify that on May 22, 2002, I served a true and correct copy of

Petitioner’s Brief on the Merits by certified U.S. mail, return receipt requested, on all

appellate counsel of record in this proceeding.




                                          ______________________________
                                          Joseph D. Hughes




                                             48

				
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