In the Interest of O.S.G., O.N v. and O.H v. Children v. the State of Texas

NO. 12-24-00214-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF O.N.V. AND § APPEAL FROM THE 273RD
O.H.V., CHILDREN
§ JUDICIAL DISTRICT COURT

§ SAN AUGUSTINE COUNTY, TEXAS

MEMORANDUM OPINION

R.G. appeals the termination of his parental rights to the children O.N.V. and O.H.V. In
four issues, he challenges the sufficiency of the evidence. We affirm.

BACKGROUND

R.G. (hereafter Father) is the father of O.N.V. and O.H.V., and J.G. is their mother. On
July 29, 2021, the Department of Family and Protective Services (the Department) filed an
original petition for the protection of O.N.V. and O.H.V., for conservatorship, and for
termination of Father’s parental rights. 1 On December 16, 2022, the court entered a Final Order
in Suit Affecting Parent-Child Relationship, in which the Department was appointed permanent
managing conservator of O.N.V. and O.H.V., with Father and J.G. named possessory
conservators.
On May 8, 2023, the Department filed its Original Petition to Modify Prior Order in Suit
Affecting the Parent-Child Relationship. Thereafter, the foster parents of O.N.V. and O.H.V.
filed a petition in intervention in the suit, with the intent to petition to adopt the children post-
termination. At the conclusion of a bench trial, the Associate Judge found, by clear and

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The Department also sought and obtained termination of J.G.’s parental rights; however, her appeal was
dismissed and is not before this Court. J.G.’s parental rights as to a third child, O.S.G., were also terminated, but
Father is not O.S.G.’s parent.
convincing evidence, that Father engaged in one or more of the acts or omissions necessary to
support termination of his parental rights under subsections (D), (E), and (O) of Texas Family
Code Section 161.001(b)(1). The Associate Judge also found that termination of the parent-child
relationship between Father and both O.N.V. and O.H.V., respectively, was in the children’s best
interest. Based on these findings, the Associate Judge ordered that the parent-child relationship
between Father and the children be terminated. The Associate Judge’s order was thereafter
adopted as an order of the court. This appeal followed.

TERMINATION OF PARENTAL RIGHTS

Involuntary termination of parental rights involves fundamental constitutional rights.
Vela v. Marywood, 17 S.W.3d 750, 759 (Tex. App.—Austin 2000), pet. denied per curiam, 53
S.W.3d 684 (Tex. 2001); In re J.J., 911 S.W.2d 437, 439 (Tex. App.—Texarkana 1995, writ
denied). Because a termination action permanently sunders the bonds between parent and child,
the proceedings must be strictly scrutinized. Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex.
1976); In re Shaw, 966 S.W.2d 174, 179 (Tex. App.—El Paso 1998, no pet.). “[W]e must
exercise the utmost care in reviewing the termination of parental rights to be certain that the
child’s interests are best served and that the parent’s rights are acknowledged and protected.”
Vela, 17 S.W.3d at 759.
Section 161.001(b) of the Texas Family Code permits a court to order termination of
parental rights if two elements are established. TEX. FAM. CODE ANN. § 161.001(b) (West 2023).
The movant must show that (1) the parent committed one or more predicate acts or omissions,
and (2) termination is in the child’s best interest. See id. § 161.001(b)(1), (2). Both elements
must be established by clear and convincing evidence, and proof of one element does not
alleviate the petitioner’s burden of proving the other. TEX. FAM. CODE ANN. § 161.001(b);
Wiley, 543 S.W.2d at 352.
The “clear and convincing” evidentiary standard for termination of parental rights is both
constitutionally and statutorily mandated. TEX. FAM. CODE ANN. § 161.001; In re J.J., 911
S.W.2d at 439. “Clear and convincing evidence” is defined as “the measure or degree of proof
that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the
allegations sought to be established.” TEX. FAM. CODE ANN. § 101.007 (West 2023). The party

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seeking termination of parental rights bears the burden of proof. In re J.F.C., 96 S.W.3d at 256,
294 (Tex. 2002).

STANDARD OF REVIEW

When presented with a challenge to both the legal and factual sufficiency of the evidence,
an appellate court must first review the legal sufficiency of the evidence. Glover v. Tex. Gen.
Indem. Co., 619 S.W.2d 400, 401 (Tex. 1981); In re M.D.S., 1 S.W.3d 190, 197 (Tex. App.—
Amarillo 1999, no pet.). When reviewing the legal sufficiency of the evidence, we review all the
evidence in the light most favorable to the finding to determine whether “a reasonable trier of
fact could have formed a firm belief or conviction that its finding was true.” In re J.F.C., 96
S.W.3d at 266. We assume that the factfinder resolved disputed facts in favor of its finding if a
reasonable factfinder could, and we disregard all evidence that a reasonable factfinder could have
disbelieved or found to have been incredible. Id. If no reasonable factfinder could form a firm
belief or conviction that the matter that must be proven is true, the evidence is legally
insufficient. Id. The trier of fact is the exclusive judge of the credibility of the witnesses and the
weight to be given their testimony. Nordstrom v. Nordstrom, 965 S.W.2d 575, 580 (Tex.
App.—Houston [1st Dist.] 1997, pet. denied).
When reviewing the factual sufficiency of the evidence, we must determine whether the
evidence is such that a factfinder could reasonably form a firm belief or conviction about the
truth of the Department's allegations. In re C.H., 89 S.W. 3d 17, 25 (Tex. 2002). We give due
consideration to evidence that the factfinder could reasonably have found to be clear and
convincing, and we consider whether disputed evidence is such that a reasonable factfinder could
not have resolved that disputed evidence in favor of its ruling. In re J.F.C., 96 S.W. 3d at 266.
If, considering the entire record, the disputed evidence that a reasonable factfinder could not
have credited in favor of the finding is so significant that a factfinder could not reasonably have
formed a firm belief or conviction, the evidence is factually insufficient. Id.

TERMINATION UNDER § 161.001(B)(1)(D) AND (E)

R.G. argues in his first and second issues that the evidence is legally and factually
insufficient to support the trial court’s predicate findings that his parental rights to O.N.V. and

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O.H.V. should be terminated pursuant to subsections (D) and (E) of Texas Family Code Section
161.001(b)(1).
Applicable Law

The court may order termination of the parent-child relationship if the court finds by clear
and convincing evidence that the parent has knowingly placed or knowingly allowed the child to
remain in conditions or surroundings which endanger the physical or emotional well-being of the
child. TEX. FAM. CODE ANN.§ 161.001(1)(D). Subsection (D) addresses the child’s surroundings
and environment. In re N.R., 101 S.W.3d 771, 775-76 (Tex. App.—Texarkana 2003, no pet.).
The child’s “environment” refers to the suitability of the child’s living conditions as well as the
conduct of parents or others in the home. In re S.R., 452 S.W.3d 351, 360 (Tex. App.—Houston
[14th Dist.] 2014, pet. denied). The relevant time frame to determine whether there is clear and
convincing evidence of endangerment is before the child was removed. Ybarra v. Tex. Dep’t of
Human Servs., 869 S.W.2d 574, 577 (Tex. App.—Corpus Christi 1993, no pet.). Further,
subsection (D) permits termination based upon only a single act or omission. In re R.D., 955
S.W.2d 364, 367 (Tex. App.—San Antonio 1997, pet. denied).
When seeking termination under subsection (D), the Department must show that the
child’s living conditions pose a real threat of injury or harm. In re N.R., 101 S.W.3d at 776;
Ybarra, 869 S.W.2d at 577. Further, there must be a connection between the conditions and the
resulting danger to the child’s emotional or physical well-being. Ybarra, 869 S.W.2d at 577-78.
It is sufficient that the parent was aware of the potential for danger to the child in such
environment and disregarded that risk. In re N.R., 101 S.W.3d at 776. In other words, conduct
that demonstrates awareness of an endangering environment is sufficient to show endangerment.
Interest of R.R.A., 687 S.W.3d 269, 278 (Tex. 2024). 2 We have previously concluded it is
illogical to reason that inappropriate, debauching, unlawful, or unnatural conduct of persons who
live in the home of a child, or with whom a child is compelled to associate on a regular basis in
his home, is not inherently a part of the “conditions and surroundings” of that place or home. In
re B.R., 822 S.W.2d 103, 106 (Tex. App.—Tyler 1991, writ denied). Subsection (D) is designed
to protect a child from precisely such an environment. Id.

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“Endanger” means to expose to loss or injury or to jeopardize. Tex. Dep’t of Human Svcs. v. Boyd, 727
S.W.2d 531, 533 (Tex. 1987); In re D.M., 58 S.W.3d 802, 811 (Tex. App.—Fort Worth 2001, no pet.).

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Subsection (E) requires us to look at the parent’s conduct alone, including actions,
omissions, or the parent’s failure to act. In re D.J., 100 S.W.3d 658, 662 (Tex. App.—Dallas
2003, pet. denied); In re D.M., 58 S.W.3d 802, 811 (Tex. App.—Fort Worth 2001, no pet.).
Termination under subsection (E) must be based on more than a single act or omission. In re
D.M., 58 S.W.3d at 812; In re D.T., 34 S.W.3d 625, 634 (Tex. App.—Fort Worth 2000, pet.
denied). A voluntary, deliberate, and conscious “course of conduct” by the parent that endangers
the child’s physical and emotional wellbeing is required. In re D.M., 58 S.W.3d at 812; In re
D.T., 34 S.W.3d at 634. Because the evidence pertaining to subsections (D) and (E) is
interrelated, we conduct a consolidated review. See In re T.N.S., 230 S.W.3d 434, 439 (Tex.
App.—San Antonio 2007, no pet.).
As a general rule, conduct that subjects a child to a life of uncertainty and instability
endangers the physical and emotional well-being of a child. In re M.R.J.M., 280 S.W.3d 494,
503 (Tex. App.—Fort Worth 2009, no pet.); In re R.W., 129 S.W.3d 732, 739 (Tex. App.—Fort
Worth 2004, pet. denied). Endangering conduct is not limited to actions directed towards the
child, but may include the parent’s actions before the child’s birth and while the parent had
custody of older children. Tex. Dep’t of Human Svcs. v. Boyd, 727 S.W.2d 531, 533 (Tex.
1987); see also In re M.N.G., 147 S.W.3d 521, 536 (Tex. App.—Fort Worth 2004, pet. denied)
(courts may look to parental conduct both before and after child’s birth to determine whether
termination is appropriate). Further, the conduct may occur before the child’s birth and both
before and after the child has been removed by the Department. Walker v. Tex. Dep’t of Family
& Protective Srvs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st Dist.] 2009, pet. denied). It
is further not necessary that the endangering conduct causes the child to actually suffer injury.
Boyd, 727 S.W.2d at 533; In re J.J., 911 S.W.2d at 440. Evidence of illegal drug use or alcohol
abuse by a parent is often cited as conduct which will support an affirmative finding that the
parent has engaged in a course of conduct which has the effect of endangering the child. See,
e.g., In re C.R., 263 S.W.3d 368, 371 (Tex. App.—Dallas 2008, no pet.); In re M.R., 243
S.W.3d 807, 818–19 (Tex. App.—Fort Worth 2007, no pet.); Toliver v. Tex. Dep’t of Family &
Protective Servs., 217 S.W.3d 85, 98 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
Analysis

Gabriell Arndt, the case manager employed by the Texas Family Care Network (through
its contract with the Department), testified at trial that the Department’s involvement with the

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family originally arose from O.N.V. and O.H.V. testing positive for marijuana at birth. J.G.
admitted to using marijuana while pregnant, while Father refused to take a drug test. The case
was referred to Family Based Safety Services (FBSS) in an effort to keep the family intact.
Father subsequently refused to engage in any of the services offered by FBSS, while J.G. failed
to comply with the Family Plan of Service in multiple ways, including failing to attend
counseling and testing positive for substances including marijuana, amphetamine, and
methamphetamine. These omissions led the Department to seek removal of the children from
the home in July of 2021.
Father did not begin consistently complying with drug testing until approximately July of
2022, and frequently tested positive for methamphetamine and marijuana. Arndt noted a pattern
wherein Father failed to test, and then tested positive for methamphetamine the following time.
Father completed an outpatient rehabilitation program in January of 2023, but continued to test
positive for substances. He completed a second outpatient rehabilitation program in March
2024. Father’s last positive test was in August of 2023, with all subsequent tests being negative,
but he failed to report for drug testing five times between August 2023 and the time of trial. A
factfinder may reasonably infer from a parent’s refusal to complete scheduled drug screenings
that the parent is avoiding screening because he is using drugs. Interest of E.A.R., 672 S.W.3d
716, 723 (Tex. App.—San Antonio 2023, pet. denied) (citing In re W.E.C., 110 S.W.3d 231, 239
(Tex. App.—Fort Worth 2003, no pet.)). A parent’s use of narcotics and its effect on his ability
to parent may qualify as an endangering course of conduct. In re J.O.A., 283 S.W.3d 336, 345
(Tex. 2009); see also In re R.W., 129 S.W.3d at 739. Moreover, evidence that the parent
continued to use illegal drugs even though the parent knew his parental rights were in jeopardy
constitutes conduct showing a voluntary, deliberate, and conscious course of conduct, which by
its nature, endangers a child’s well-being. See Interest of S.A., 665 S.W.3d 59, 70 (Tex. App.—
Tyler 2022, pet. denied); In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011,
pet. denied). Because it exposes the child to the possibility that the parent may be impaired or
imprisoned, illegal drug use may support termination under subsection (E). Walker, 312 S.W.3d
at 617-18.
Arndt related that Father was difficult to communicate with, whether by phone or in
person, and was only willing to talk to her when he was angry about something. Arndt further
stated that at the most recent supervised visit (which occurred at a children’s museum), Father

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and J.G. arrived late, and Father became disengaged toward the end of the four-hour time period
and asked to leave an hour early. Father’s plan of service included completion of counseling and
a parenting class, which he did not complete at any point during the pendency of this case. A
court may consider a parent’s failure to complete a service plan as part of the endangering
conduct analysis. See Interest of S.A., 665 S.W.3d at 70 (citing In re M.B., No. 02-15-00128-
CV, 2015 WL 4380868, at *12 (Tex. App.–Fort Worth July 16, 2015, no pet.) (mem. op.)).
Since 2021, J.G.’s drug tests were regularly positive for marijuana and occasionally
positive for other illegal substances despite her completion of two courses of outpatient
rehabilitation. J.G. testified that she and Father were romantically involved “on and off,” but they
intended to live together for the foreseeable future. She denied ever using amphetamine or
methamphetamine and could not explain why she tested positive for those substances on multiple
occasions. J.G. admitted using marijuana “with [her children] in the home” for “two years and
six months” prior to July 2021, and saw no safety concern with her actions. She specified that
she waited until the children were asleep and then went outdoors to smoke marijuana. She knew,
since the beginning of the Department’s involvement in this case, that she was not supposed to
use marijuana (because it is illegal and against the court-ordered service plan), and could not
give a reason that she continued to use. However, Father knew about and expressed disapproval
of her marijuana use during pregnancy. Conduct of a parent or another person in the home can
create an environment that endangers the physical and emotional well-being of a child as
required for termination under subsection (D). Interest of E.G., 643 S.W.3d 236, 251 (Tex.
App.—Amarillo 2022, no pet.). Inappropriate or unlawful conduct by persons who live in a
child’s home or with whom a child is compelled to associate on a regular basis at home is a part
of the “conditions or surroundings” of the child’s home under subsection (D). Id. at 251-52. A
parent’s exposure of children to drug use may be properly considered in determining whether a
parent demonstrates appropriate parenting abilities. Interest of S.B., 597 S.W.3d 571, 587 (Tex.
App.—Amarillo 2020, pet. denied).
From the above evidence, a reasonable fact finder could have formed a firm belief or
conviction that Father used illegal drugs during this case and failed to complete multiple
requirements of his service plan. Further, the evidence allowed for the formation of a firm belief
that Father knew of J.G.’s previous illegal drug use around the children, and intended, if the
children were returned to him, to reside with J.G. and expose the children to her continued use of

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illegal substances. Therefore, we hold that the evidence, viewed in the light most favorable to
the finding, was sufficiently clear and convincing that a reasonable trier of fact could have
formed a firm belief or conviction that Father knowingly placed or knowingly allowed the
children to remain in conditions or surroundings that endangered the physical or emotional well-
being of the children, and engaged in conduct or knowingly placed the children with persons
who engaged in conduct that endangered the physical or emotional well-being of the children.
See In re J.F.C., 96 S.W.3d at 266. Although J.G. testified that she did not believe Father ever
used drugs despite the positive tests, this evidence is not so significant that a reasonable trier of
fact could not have reconciled the evidence in favor of its finding. See In re C.H., 89 S.W.3d at
25. Therefore, we conclude that the evidence is legally and factually sufficient to support
termination of Father’s parental rights under subsections (D) and (E) of Texas Family Code
Section 161.001(b). We overrule Father’s first and second issues. 3

BEST INTEREST OF THE CHILD

In issue four, R.G. argues that the evidence is legally and factually insufficient to support
the trial court’s finding that termination of his parental rights is in the children’s best interest.
Applicable Law

Trial courts have wide latitude in determining a child’s best interest. Interest of I.N.B.,
662 S.W.3d 631, 647 (Tex. App.—Beaumont 2023, no pet.). In determining the best interest of
the child, courts consider a non-exhaustive list of factors, including: (1) the desires of the child;
(2) the child’s emotional and physical needs now and in the future; (3) the emotional and
physical danger to the child now and in the future; (4) the parental abilities of the individuals
seeking custody; (5) programs available to assist these individuals to promote the child’s best
interest; (6) plans for the child by these individuals or the agency seeking custody; (7) stability of
the home or proposed placement; (8) acts or omissions of the parent which may indicate that the
existing parent-child relationship is not proper; and (9) any excuse for the parent’s acts or
omissions. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

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Because we overrule Father’s first and second issues, we do not consider his third issue regarding whether
the evidence supports termination of his parental rights to O.N.V. and O.H.V. under Texas Family Code, Section
161.011(b)(1)(O). See TEX. R. APP. P. 47.1.; In re N.G., 577 S.W.3d 230, 237 (Tex. 2019).

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The Texas Family Code also provides a list of factors that we will consider in
conjunction with the Holley factors. TEX. FAM. CODE ANN. § 263.307(b) (West 2023). These
statutory factors include (1) the child’s age and physical and mental vulnerabilities; (2) the
frequency and nature of out-of-home placements; (3) the magnitude, frequency, and
circumstances of the harm to the child; (4) whether the child has been the victim of repeated
harm after the initial report and intervention by the Department; (5) whether the child is fearful
of living in or returning to the child’s home; (6) the results of psychiatric, psychological, or
developmental evaluations of the child, the child’s parents, other family members, or others who
have access to the child’s home; (7) whether there is a history of abusive or assaultive conduct
by the child’s family or others who have access to the child’s home; (8) whether there is a history
of substance abuse by the child’s family or others who have access to the child’s home; (9)
whether the perpetrator of the harm to the child is identified; (10) the willingness and ability of
the child’s family to seek out, accept, and complete counseling services and to cooperate with
and facilitate an appropriate agency’s close supervision; (11) the willingness and ability of the
child’s family to effect positive environmental and personal changes within a reasonable period
of time; (12) whether the child’s family demonstrates adequate parenting skills; and (13) whether
an adequate social support system consisting of an extended family and friends is available to the
child. Id.
No particular Holley factor is controlling, and evidence of one factor may be sufficient to
support a finding that termination is in the child’s best interest. In re A.P., 184 S.W.3d 410, 414
(Tex. App.—Dallas 2006, no pet.). The evidence need not prove all the statutory or Holley
factors to show that termination of parental rights is in a child’s best interest. See Holley, 544
S.W.2d at 372; In re J.I.T.P., 99 S.W.3d 841, 848 (Tex. App.—Houston [14th Dist.] 2003, no
pet.). The best interest of the child does not require proof of any unique set of factors nor limit
proof to any specific factors. In re D.M., 58 S.W.3d at 814. Evidence supporting the statutory
predicate grounds for termination of parental rights is also probative in determining whether
termination is in the child’s best interest. See In re C.H., 89 S.W.3d at 28-29. In conducting a
best-interest analysis, “a court may consider not only direct evidence but also may consider
circumstantial evidence, subjective factors, and the totality of the evidence.” In re J.M.T., 519
S.W.3d 258, 269 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). We will apply the relevant
statutory and Holley factors below.

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Analysis

In this case, as discussed above, there is evidence of an extensive history of substance
abuse by both Father and J.G., the continuation of which presented a danger to the children if
placed with Father and J.G. A factfinder may infer that past conduct endangering the well-being
of a child may recur in the future if the child is returned to the parent. In re M.J.R.M., 280
S.W.3d at 502. Generally, in the three years between the children’s removal and the time of trial,
there was little evidence that Father was willing or able to effect positive personal changes.
Moreover, Father showed unwillingness to either cooperate with agency supervision (as
illustrated by his frequent failure to drug test and his poor communication with Arndt) or
complete the required counseling services.
Record evidence showed that Father exhibited questionable parenting abilities during his
interactions with the children. Arndt testified that in her observation, Father stopped engaging
with O.N.V. and O.H.V. during visits and sat by himself, and at some visits, he and J.G. played
a video for the children on a phone rather than interacting with them. Moreover, Father and J.G.
were frequently late to visits and sometimes left before the end of the scheduled visitation period.
Similarly, Kimberly Griffin, a CASA volunteer, testified that Father did not regularly initiate
contact with the children during visits, but waited for them to “come to him first.” She stated
that although Father and J.G. were happy to attend brief visits with the children, neither parent
seemed to feel any sense of urgency to secure the children’s return.
Pertaining to the stability of the proposed placement for O.N.V. and O.H.V., R.B., the
children’s foster father, testified that he and his wife intervened to request termination because
they wanted to adopt the children. He believed that adoption was in the children’s best interest
because he and his wife could provide a stable home with opportunities for success. He noted
that both O.N.V. and O.H.V. were placed with older children in daycare because they were
performing well, and that both participated in music lessons. R.B. stated, “We don’t do drugs or
alcohol in our house.” He testified that the children had positive relationships with a social
support system of both friends and family members. Related to the children’s feelings about
returning to live with J.G. and Father, R.B. testified that when the children returned from a visit,
they were fussy, depressed, and frustrated, and he believed the adoption would provide the
children with normalcy.

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After reviewing the evidence and examining the statutory and Holley factors, we
conclude that a reasonable trier of fact could have formed a firm belief or conviction that
termination of R.G.’s parental rights was in the best interest of O.N.V. and O.H.V., and
therefore, the evidence of best interest is legally sufficient. See TEX. FAM. CODE ANN. §
161.001(b)(2); In re J.F.C., 96 S.W.3d at 266. Although some evidence might weigh against the
trial court’s finding, such as the fact that O.N.V. and O.H.V. have some emotional attachment to
Father and he participated in substance abuse rehabilitation programs, this evidence is not so
significant that a reasonable fact finder could not have reconciled the evidence in favor of its
finding and formed a firm belief or conviction that terminating Father’s parental rights is in
O.N.V.’s and O.H.V.’s best interest. We therefore conclude that the evidence supporting the
trial court’s finding that termination of Father’s parental rights is in the children’s best interest is
factually sufficient. We overrule Father’s fourth issue.

DISPOSITION

Having overruled R.G.’s first, second, and fourth issues, we affirm the judgment of the
trial court.
BRIAN HOYLE
Justice

Opinion delivered August 29, 2024.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 29, 2024

NO. 12-24-00214-CV

IN THE INTEREST OF O.S.G., O.N.V. AND O.H.V., CHILDREN
Appeal from the 273rd District Court
of San Augustine County, Texas (Tr.Ct.No. CV-21-10180)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED, and DECREED that the
judgment of the court below be in all things affirmed, and that this decision be certified to the
court below for observance.

Brian Hoyle, Justice.
Panel consisted of Worthen, C.J., Hoyle, J., and Bass, Retired J., Twelfth Court of Appeals,
sitting by assignment.