IN THE TENTH COURT OF APPEALS No. 10-09-00271-CV IN THE INTEREST OF D.P., A CHILD,

From the 12th District Court Leon County, Texas Trial Court No. FL-08-482

MEMORANDUM OPINION

After a jury trial, the trial court entered an order terminating Appellant Michael P.’s parental rights to D.P., his son.1 Raising two issues, Michael appeals. We will affirm.

We begin with Michael’s second issue, which asserts that the evidence is legally and factually insufficient2 to support the jury’s finding that Michael’s parent-child relationship with respect to another child had been terminated based on a finding that

A court may order termination if a parent has had his parent-child relationship terminated with respect to another child based on a finding that the parent’s conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state. TEX. FAM. CODE ANN. § 161.001(1)(M).

In evidence is a certified copy of an order of termination that terminates the parental rights of Michael to another child, S.P., and that order finds by clear and convincing evidence that Michael knowingly placed or knowingly allowed the child to remain in conditions or surroundings that endangered the child’s physical or emotional

In his first issue, Michael asserts that the trial court abused its discretion in the admission of two exhibits that contain hearsay: one is the affidavit of a CPS investigator who investigated the initial report of medical neglect of D.P., and the other is a report to the court by the same investigator. We, like the Department on appeal, will assume that the exhibits were erroneously admitted and will proceed to a harm analysis as to the jury’s best interest finding and determine if the error warrants reversal or was harmless.5 To warrant reversal, we must conclude that the error probably caused the rendition of an improper judgment. See TEX. R. APP. P. 44.1(a)(1); Bay Area Healthcare

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). These factors are not exhaustive, and some of the listed factors may be inapplicable to some cases, while other factors not listed may also be considered when appropriate. C.H., 89 S.W.3d at 27.

In the Interest of D.P., a Child Page 3 Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007). “We review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted.” McShane, 239 S.W.3d at 234.

The affidavit and report at issue reflect the following: (1) the Department received a report of medical neglect regarding D.P.; (2) Michael and Lisa were disruptive during D.P.’s removal; (3) the Department took D.P. to a physician, but no medical concerns were noted at that time; (4) Michael has an extensive history with the Department; (5) several of Michael’s children live with relatives; (6) in prior cases, Michael failed to participate in services; (7) Michael had convictions of indecency with a child; and (8) D.P. was hospitalized shortly after coming into the Department’s care.

If wrongly admitted evidence is merely cumulative of other evidence that was properly admitted, the error is harmless. See In re C.R., 263 S.W.3d 368, 370-71 (Tex. App.—Dallas 2008, no pet.). In this case, not only was the foregoing evidence presented in similar oral testimony, but additional evidence supporting termination was admitted.

D.P. was born at home and was eight months’ old at the time of trial. The Department became involved when a physician reported that Lisa had brought D.P. to a clinic several weeks after he was born and, upon a recommendation that D.P. be taken to the hospital, Lisa left the clinic. The Department then removed D.P. for medical neglect. He was later hospitalized for an unexplained fever. When D.P. came into the Department’s care, he was developmentally behind; he could not roll over because his shoulder muscles were not developed enough.

D.P. was placed in a foster home with his sibling, S.P., and Michael was not In the Interest of D.P., a Child Page 4 offered visits with D.P. based on the trial court’s finding of aggravated circumstances.

There was no evidence that D.P. was bonded to Michael. Paige Scarborough, D.P.’s caseworker, said that D.P. is doing well in his foster placement and is a happy baby.

His foster parents are meeting his medical needs. She said that, with D.P., it would have been the fourth time for the Department to offer services to Michael, and that the risks with trying to reunify D.P. with Michael and Lisa included their threats to others, drug use, sexual abuse, and neglect. The Department’s last involvement with Michael and Lisa had been only two years prior, with termination as to S.P., and they had not completed services in that case. No relatives were willing or able to provide a placement for D.P. Michael’s explanation for why he had not completed services in his prior case, including sex offender therapy, was because the Department had changed its caseworker. C.P., another child, was placed with Michael’s father and stepmother, and Michael has not seen C.P. in several years.

Michael’s two criminal convictions of indecency with a child were admitted. The victim was the same fourteen-year-old child, and Michael is required to register as a sex offender.

Scarborough said that she did not believe that long-term foster care was a good option for D.P. and that adoption would provide permanence and stability. A Department supervisor testified that adoption would be in D.P.’s best interest. The foster parents are in the process of adopting D.P. Michael offered no evidence that he has changed his pattern of behavior, that he can meet D.P.’s needs, of his parenting abilities, of available services or programs, of his residence or employment, or of future In the Interest of D.P., a Child Page 5 plans for D.P. We conclude that not only is the evidence in the two exhibits cumulative, but the other evidence supporting the jury’s finding that termination is in D.P.’s best interest is legally and factually sufficient. Accordingly, the admission of the two exhibits was harmless because it did not cause the rendition of an improper judgment. We overrule issue one.

Having overruled both of Michael’s issues, we affirm the trial court’s order of termination.

REX D. DAVIS Justice Before Chief Justice Gray, Justice Reyna, and Justice Davis Affirmed Opinion delivered and filed February 24, 2010 [CV06]

In the Interest of D.P., a Child Page 6