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Click here for the full text of this decision FACTS:After investigating the family of Anthony James Rogers, his wife and their children and step children for signs of possible abuse over two years, the Department of Family and Protective Services was named temporary managing conservatorship of four children, including L.A.J. and A.J.R. Soon, DFPS moved to terminate both parents’ rights to those two children, plus S.C.R. Those children were placed in foster care. Meanwhile, a fourth child, P.L.R., was born. Rogers was by then serving time in prison for a probation offense, and L.A.J. and A.J.R. were eventually returned to their mother. When Rogers was released from prison, he was told not to move back in with the family. Soon, S.C.R. was returned to the mother as well. A DFPS caseworker visited regularly. On one such visit in February 2000, Rogers told the caseworker that S.C.R. was not at home. Two days later, when the caseworker returned, S.C.R. was found laying on her bed with a bandana around her head. Alarmed at the child’s condition, the caseworker had the child admitted to the hospital in critical condition. She had a black eye, swollen head, lacerations, and a possible bite mark on her face and lips. She also had a burn on her forehead, bruising on her arms and legs, a fractured wrist, bleeding in her skull and brain, and hundreds of healed scars. S.C.R., L.A.J. and A.J.R. were all removed from the home, DFPS obtained emergency temporary managing conservatorship over P.L.R., and criminal chares were brought against both Rogers and his wife. Both were convicted, and both were sent to prison. DFPS again moved to terminate both parents’ rights. A jury found that termination was in the children’s best interest. Rogers appeals. HOLDING:Affirmed. Declining to specifically rule on whether Rogers preserved his challenge on the best-interest-of-the-child jury charge submitted in the case, the court says the charge was proper. The charge included 22 factors the jury could consider when determining the best interests of the child. Nine of the factors were taken from Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). The other factors were taken from Family Code 263.307, and the list of factors was not intended to be exclusive. Therefore, the criteria included in the court’s charge accurately reflected the common law and statutory law, were intended to aid the jury in determining what was in the child’s best interest, and could have resulted as readily in a finding favorable to the parent as in one that was not favorable to the parent. As a result, the trial court did not abuse its discretion by using this jury instruction. The court rejects Rogers’ challenge to the jury instruction on endangerment, too. Rogers argues that there was no evidence that he engaged in any abusive, violent or aggressive conduct towards any child, but the jury charge allowed the jury to base an affirmative answer on this question based on his omissions, not his actions. “Rogers’ argument is . . . fundamentally flawed because it is clear from the record that the jury based its findings on the fact that Rogers was convicted in a criminal proceeding of injuring his child an affirmative act of abuse on his part, not an omission.” The court finds several of Rogers’ arguments improperly preserved for appeal. The court also finds that, even though the caseworker was qualified to testify as an expert, she only testified as a fact witness. She expressed her own opinion, not the collective opinion of the DFPS. Also, the court says it was proper to allow the child advocate supervisor to testify in this case because the supervisor had been appointed the children’s guardian ad litem. Even if this testimony was improperly admitted, Rogers did not preserve error because he did not object to it at trial. In assessing the sufficiency of the evidence, the court finds that Rogers’ criminal conviction could be used as evidence in the termination proceeding, even though the appeal of his conviction was still on appeal. The court notes that the parental-rights-termination statute does not mention anything about post-conviction proceedings. Besides, the fact that Rogers was convicted of injuring a child was itself clear and convincing evidence that Rogers had committed the act enumerated in the termination petition. Furthermore, evidence of the conviction may be probative of the issue of the child’s best interest. The court takes note of the dearth of any evidence that could weigh in Rogers’ favor, as Rogers repeatedly refused to answer most questions (invoking the Fifth Amendment). Nor were there any psychological evaluations, school reports or any other evidence to indicate that the parent-child relationship between Rogers and the children was a healthy one that should not have been terminated. Finally, the court does not find any authority to support Rogers’ argument that DFPS was required to investigate his relatives’ homes for possible placement of the children when none of the relatives came forward to offer themselves as possible foster placements. OPINION:Evelyn v. Keyes, J.; Radack,, C.J., Keyes and Hanks, JJ.

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