693 F.2d 566
Henry SAMPSON, Petitioner-Appellee,v.John T. KING, Secretary of Louisiana Department ofCorrections, and Ross Maggio, Jr., Warden,Louisiana State Penitentiary,Respondents-Appellants.
No. 82-3152.

Summary Calendar.
United States Court of Appeals,Fifth Circuit.
Dec. 14, 1982.
J. Marvin Montgomery, Asst. Atty. Gen., Dept. of Justice, Baton Rouge, La., for respondents-appellants.
Henry Sampson, pro se.
Appeal from the United States District Court for the Middle District of Louisiana.
Before CLARK, Chief Judge, POLITZ and HIGGINBOTHAM, Circuit Judges.
CLARK, Chief Judge:

1
Henry Sampson, an inmate at Louisiana State Penitentiary in Angola, Louisiana, brought this Sec. 1983 action against C. Paul Phelps, former Secretary of the Louisiana Department of Corrections, Frank Blackburn, former Warden at Angola, and two correctional officers.  Sampson claimed that he was injured by Parathion, a pesticide used by Angola in its farming operations.  The case was tried by consent before a United States Magistrate.  The magistrate dismissed Sampson's complaints against the two correctional officers, but granted judgment against the Secretary and the Warden for $250.00.  He also enjoined the defendants from further use of Parathion.  The Secretary and the Warden appeal from that judgment.  We reverse.

2
Angola is a maximum security prison situated on approximately 18,000 acres of land.  Crops are grown on a large portion of that land.  Airplanes and tractors spray those crops several times a year with pesticides, herbicides and defoliants.  One of the pesticides used was Parathion.  Many Angola inmates, including Henry Sampson, are regularly assigned to work in the fields.

3
In his complaint, Sampson alleged that his exposure to Parathion constituted cruel and unusual punishment.  Sampson alleged that he came into contact with Parathion as a result of overhead spraying by cropdusters.  The magistrate found that there was no support for this allegation.  The record strongly supports this conclusion.  Prisoners and correctional officers assigned to work in the fields joined in testifying that they had never been sprayed.  Angola's normal practice was to spray in areas far removed from where the inmates were working.  If the wind was blowing strongly enough to cause dispersion, no spraying was permitted.

4
Sampson also argued that it was cruel and unusual to force him to work in fields that had recently been sprayed with Parathion.  The magistrate found that Angola officials normally waited two or three days before assigning inmates to work in such fields.  He also found no evidence to support Sampson's claim that field work had caused him to come into contact with Parathion.  Despite these findings, he went on to find that "it is entirely possible that petitioner and other inmates could come into contact with this chemical by entering a sprayed field, after the two to three day safety delay now employed at the penitentiary."    Based on this conjecture, the magistrate enjoined the Angola officials from any further use of Parathion.

5
Sampson also argued that he was subjected to cruel and unusual punishment by being forced to work in a chemical storage area.  The magistrate found that, while Sampson was working in the area, he accidently fell into a puddle of pesticide.  As a result, Sampson became nauseated, dizzy, and had watery eyes.  The magistrate concluded that Sampson "was forced to do potentially hazardous work without proper training, supervision, or clothing."    He also concluded that the chemicals were improperly stored in "rusted, open, and in many cases nonlabelled cans."    Because Sampson's injuries did "not seem to be significant," he was awarded $250.00, with each defendant individually liable for one half the amount.

6
The Eighth Amendment protects all prisoners from cruel and unusual punishment.   Estelle v. Gamble, 429 U.S. 97, 102-03, 97 S.Ct. 285, 290-291, 50 L.Ed.2d 251 (1976).  The role of the federal courts is to enforce that constitutional standard without assuming superintendence of jail administration.   Jones v. Diamond, 636 F.2d 1364, 1368 (5th Cir.1981) (en banc), cert. denied, 453 U.S. 950, 102 S.Ct. 27, 69 L.Ed.2d 1033 (1982).  This policy of minimum intrusion is particularly important when a state prison system is involved.   Ruiz v. Estelle, 679 F.2d 1115, 1145 (5th Cir.1982);  Williams v. Edwards, 547 F.2d 1206, 1212 (5th Cir.1977).

7
Prison conditions can be so bad that it is cruel and unusual punishment to force inmates to endure them.   Gates v. Collier, 501 F.2d 1291, 1301 (5th Cir.1974).  In determining whether to uphold an eighth amendment challenge to prison conditions, the court must consider whether the totality of the circumstances violates "contemporary standards of decency."   Rhodes v. Chapman, 452 U.S. 337, 345-50, 101 S.Ct. 2392, 2398-2400, 69 L.Ed.2d 59 (1981);  Stewart v. Winter, 669 F.2d 328, 335-36 (5th Cir.1982);  Jones v. Diamond, 636 F.2d at 1368;  Cerrella v. Hanberry, 650 F.2d 606, 607 (5th Cir.1981), cert. denied, 454 U.S. 1034, 102 S.Ct. 573, 70 L.Ed.2d 478 (1982).  The individual judge must not apply his own subjective view of what is cruel and unusual.  Rather, his judgment "should be informed by objective factors to the maximum possible extent."   Rhodes v. Chapman, 452 U.S. at 345, 101 S.Ct. at 2398;  Rummel v. Estelle, 445 U.S. 263, 275, 100 S.Ct. 1133, 1139, 63 L.Ed.2d 382 (1980);  Ruiz v. Estelle, 679 F.2d at 1138.

8
In general, the state has a responsibility to protect the safety of its prisoners.   Streeter v. Hopper, 618 F.2d 1178, 1182 (5th Cir.1980);  Smith v. Sullivan, 553 F.2d 373, 380 (5th Cir.1977).  In operating a prison, however, the state is not constitutionally required to observe all the safety and health standards applicable to private industry.    Ruiz, at 1159.  Nor is it bound by the standards set by the safety codes of private organizations.   Bell v. Wolfish, 441 U.S. 520, 543 n. 27, 99 S.Ct. 1861, 1876 n. 27, 60 L.Ed.2d 447 (1979).  Standards suggested by experts are merely advisory.    Bell, at 543 n. 27, 99 S.Ct. at 1876 n. 27;  Ruiz, at 1149-50.  A federal court required to gauge the conduct of state officials must use minimum constitutional standards as the measure.

9
The magistrate erred in concluding that Sampson's work with Parathion constituted cruel and unusual punishment.  No showing was made that Parathion is not regularly used by private farmers engaged in the sort of agriculture practiced by the prison.  Prison officials should not be held to a higher standard of care than that practiced by responsible farmers in the surrounding agricultural community.  A prison farm which adheres to the reasonable customs and usages of the surrounding area cannot be said to be imposing cruel and unusual punishment.  The magistrate's reliance on two magazine articles which criticized Parathion was misplaced.  The record contains no indication that the articles were known to prison officials or accepted in the agricultural community as articulating minimum standards for safe use.  Nor did the proof establish that Parathion has been banned by the Food and Drug Administration or the Environmental Protection Agency.  For all the proof shows, Parathion may be a beneficial chemical commonly used throughout the country.  The magistrate's injunction prohibiting the further use of Parathion is reversed as a clear abuse of discretion.

10
In their answer, the Secretary and the Warden specifically pled qualified immunity from liability for money damages.  Nevertheless, the magistrate failed to consider the issue of immunity before holding them liable for $250.00.  This was error.  The record clearly establishes that the officials were immune from liability for money damages in this case.  We therefore reverse and dismiss Sampson's damage claim against the prison officials.

11
"Immunity is a corollary of discretion."   Bogard v. Cook, 586 F.2d 399, 413 (5th Cir.1978), cert. denied, 444 U.S. 883, 100 S.Ct. 173, 62 L.Ed.2d 113 (1979).  Qualified immunity can only exist where the defendant official is required to exercise some modicum of official discretion.   Saldana v. Garza, 684 F.2d 1159, 1162 (5th Cir.1982);  Williams v. Treen, 671 F.2d 892, 896 (5th Cir.1982) (U.S.app.pndg.);   Jackson v. Mississippi, 644 F.2d 1142, 1145 (5th Cir.1981).  The magistrate specifically found that the Secretary and the Warden were discretionary officers, and that formulating policies with regard to the handling of pesticides was within the scope of their discretionary authority.  When an official who has pled immunity shows that he acted within the scope of his discretionary authority, the burden shifts to the plaintiff to show that the defendant's conduct violated clearly established law.   Saldana v. Garza, 684 F.2d at 1163.

12
Officials are shielded from civil damages "insofar as their conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known."   Harlow v. Fitzgerald, --- U.S. ----, 102 S.Ct. 2727, 2738, 73 L.Ed.2d 396 (1982);  Saldana, 684 F.2d at 1163.  The focus is on the objective legal reasonableness of an official's acts.  Unless the Sec. 1983 plaintiff can establish that the defendant officials have violated clearly established law, his claim for damages must be dismissed.    Saldana, at 1164.    See Williams, at 896;  Dilmore v. Stubbs, 636 F.2d 966, 968 (5th Cir.1981);  Barker v. Norman, 651 F.2d at 1125-26;  Bogard v. Cook, 586 F.2d at 411.

13
The Secretary and the Warden did not violate clearly established law.  The regulations cited by the magistrate, 40 C.F.R. Sec. 165.10, merely recommend procedures for the handling of pesticides.  The published procedures expressly provide that they are mandatory only for Environmental Protection Agency personnel engaged in the handling of such chemicals.  40 C.F.R. Sec. 165.2(d).  No clearly established law prohibits the prison from assigning inmates to work in a pesticide storage area, or requires the use of protective masks or special clothing to do that work.  No showing was made that the methods followed by the prison work force differed significantly from those in common use in the surrounding agricultural community.  Therefore, the Secretary and the Warden are immune from liability for any injuries resulting from this practice.  Sampson's claim must be dismissed.

14
The magistrate's judgment granting an injunction against further use of Parathion is REVERSED and judgment is rendered here in favor of the Secretary and the Warden.  Sampson's claim for money damages against the Secretary and the Warden is

15
DISMISSED.


Opinion filed July 12, 2012

                                                           In The

    Eleventh Court of Appeals
                                                        __________

                                                No. 11-11-00269-CV
                                                    __________

                            IN THE INTEREST OF W.B.W., A CHILD

                                    On Appeal from the 90th District Court

                                                Stephens County, Texas

                                            Trial Court Cause No. 30,509

                                     MEMORANDUM OPINION

          The Texas Department of Family and Protective Services brought suit to terminate the
parental rights of Rebekah and Charles to their daughter, W.B.W. 1 The jury found by clear and
convincing evidence that termination of the parent-child relationship between Charles and
Rebekah and W.B.W. was in W.B.W.’s best interest and that Charles and Rebekah had engaged
in acts or conduct that satisfied one or more of the statutory grounds for termination. The trial
court entered an order terminating their parental rights, and both parents appeal. We affirm.
                                                     Background Facts
          Rebekah has three daughters: C.N., who was twenty-one years old at the time of trial;
B.N., who was eighteen years old at the time of trial; and W.B.W., who was seven years old at

          1
            Pursuant to TEX. R. APP. P. 9.8(b), appellants will be referred to as “Charles” and “Rebekah,” and the children will be
referred to by initials.
the time of trial. C.N. is autistic and functions intellectually at the level of a seven-year-old
child. C.N. and B.N. both have the same father, Paul, whom Rebekah married in 1987 and
divorced in 1994. Paul is now married to Mindy. Rebekah began dating Charles in 1999 and
married him in 2002. At the time Charles and Rebekah married, C.N. was thirteen years old and
B.N. was ten years old. In 2004, Rebekah and Charles had W.B.W.
       Rebekah testified that in 1999, when she met Charles, she learned that Charles had been
convicted of indecency with a child in 1986 for molesting his nine-year-old sister-in-law.
Charles provided her with copies of documents related to his 1986 conviction. Rebekah also
knew that the police had gone to the preacher of her church and told the preacher that Charles
was a pedophile. Rebekah admitted that, outside of seeing the documents that he provided her,
she did not investigate Charles’s criminal past before bringing him into the home with C.N. and
B.N. She also testified that she allowed him to take C.N. and B.N. on trips out of state without
her, at a time when she knew that he was a convicted sex offender.
       The Texas Department of Family and Protective Services first became involved with the
family in 2003, when Paul made a report to CPS about sexual contact between Charles and C.N.
C.N. told Paul and Mindy that Charles paid her to massage his penis and that he got into the
bathtub with her. Paul reported this information because Charles continued to take both B.N.
and C.N. on unsupervised out-of-town trips alone, staying in motels. Rebekah claimed that the
unsupervised, overnight trips were for “bonding.” She excused the bathing incident by saying
that C.N. and Charles both had their bathing suits on and that this was part of something called
the “fishy game.”     Department Investigator Shelley Tinney testified that, throughout the
Department’s involvement with the family, there were reports that the children were paid to
massage Charles and that Rebekah was aware of it.
       Rebekah claimed that Charles had already told her that C.N. had “tried something” with
him when C.N. made her 2003 outcry to Paul. According to Rebekah’s testimony, in 2003, C.N.
told her that she had tried to put her hands up Charles’s shorts. Rebekah stated, “So nobody is
saying that this incident didn’t happen; it’s just that my daughter was not forced to do it. She
was in a sexual air like children do.” Rebekah testified that she believed that this was C.N.’s
idea. Rebekah stated that she took C.N. to an autism specialist, that she conducted her own
investigation into Charles’s predilection toward pedophilia, and that she was “pretty sure nothing
happened. I mean, I wasn’t there, so I can’t say. But I was pretty sure.” Rebekah also admitted

                                                2
that she knew that Charles paid C.N. and B.N. to massage him and that she continued to allow
C.N. and B.N. to take overnight trips with Charles following the 2003 incident.
       The 2003 investigation led to findings of “[r]eason to believe” that Charles committed
sexual abuse of C.N. and that Rebekah engaged in neglectful supervision of her.              The
Department offered services and monitoring and Family Based Safety Services (FBSS). Charles
and Rebekah did not complete the services. Although the Department considered removal of
C.N. and B.N. due to this incident, it was determined that there was not enough evidence to
support removal.    Family based services were eventually terminated because Charles and
Rebekah refused to cooperate with the Department.
       In 2008, the Department received a report of another sexual abuse allegation regarding
C.N. C.N. made an outcry at school to her teacher, Michelle McGee, and teacher’s aide, Rena
Fore. C.N. told McGee and Fore that she was uncomfortable with the way that her stepfather
had been touching her for the past two years. McGee called Rebekah and told her that she
should come to the school right away. Rebekah arrived at the school within a matter of minutes,
and both teachers urged C.N. to tell her mother what she had told them. According to McGee,
“the floodgates opened” and C.N. began to tell her mother what Charles had done in graphic
detail. She told her mother that Charles had touched her and penetrated her; C.N. said, “He stuck
his penis in me.” Fore provided a written statement in which she wrote that C.N. provided
details concerning how Charles would make her get on the floor and how he would “rub himself
and then stick his penis in [her].” C.N. also related that the abuse happened on her overnight
trips with Charles. Rebekah’s response was to ask, “[W]hy are you doing this?” She then began
a rapid-fire interrogation of her daughter. Rebekah told C.N. that she would have to have more
details before she would believe her. Throughout the questioning, C.N. “did not miss a beat” in
her answers, answering each question the same way and never wavering even though Rebekah’s
questions were given in a firm tone and seemed designed to get her to change her story. When
Rebekah asked “which hole,” C.N. pointed to her backside. McGee thought that Rebekah was
very upset and seemed angry at C.N. Fore testified that Rebekah also stated, “You’ll destroy our
family. You will have to live somewhere else. He is innocent.” C.N. responded, “It’s true.”
Rebekah did not attempt to console C.N. but instead told the teachers to “send her [home] on the
bus” because Rebekah needed to go talk to her husband. McGee was shocked that Rebekah had
not comforted C.N. and that she appeared to be defensive of Charles. Fore related that she could
not understand Rebekah’s obvious anger with C.N. McGee stated that the fact that Rebekah just
                                                3
left C.N. at the school to ride the bus home “was heart sickening” because “[C.N.] had just
finally broken all of this and [Rebekah] was gone.”
       Because C.N. was eighteen at the time, Adult Protective Services intervened, and C.N.
was removed from the home. C.N. went to live with her father and step-mother, Paul and
Mindy, who were later appointed as her guardians. Mindy testified that she and her husband did
not need to renew their guardianship status because it eventually became clear that “nobody was
coming for her.” Rebekah has since refused to help care for C.N. Mindy also testified that,
before C.N. filed a change of address with Social Security, Rebekah refused to send C.N.’s social
security disability income checks to Paul and Mindy. Rebekah said that C.N. “made those
allegations against my husband and she’s going to pay for him an attorney to clear his name.”
Rebekah told Mindy that she did not think Charles had molested C.N. Rebekah cut all ties to
C.N., saying that she did not trust her. Rebekah told her mother, Billie Jo, that she had to “get
rid” of C.N. because she did not trust her. Even though Mindy pleaded with Rebekah to write or
call C.N., Rebekah refused to send a birthday or holiday card or to communicate in any other
way with C.N.
       Tinney related that, when one child makes an outcry, it is the policy of the Department to
investigate all children in the household. If the other children do not make an outcry, there is not
much the Department can do at that time. In 2008, both B.N. and W.B.W. denied being abused.
The Department was “[u]nable to determine” whether Charles had sexually abused B.N. or
W.B.W., but it did find that there was “reason to believe” that Rebekah had neglectfully
supervised both children. The Department again offered services to Charles and Rebekah, but
they refused.
        After C.N.’s 2008 sexual abuse outcry, Rebekah continued to allow Charles to take B.N.
on overnight trips and to be alone with W.B.W. Even though B.N. and W.B.W. did not make
outcries during the 2008 investigation, the Department continued to be concerned about their
safety. Tinney related that, in her experience as an investigator, it is not unusual for a child to
wait for an extended period of time to make an outcry. On May 6, 2008, the Department filed a
“Petition for Order to Participate in Services,” and on May 16, 2008, the Department filed an
“Original Petition for Protection of a Child for Conservatorship, and for Termination in Suit
Affecting the Parent-Child Relationship” concerning B.N. and W.B.W. Charles and Rebekah
entered into an Agreed Order for Required Participation in which Rebekah was ordered to
participate in a family service plan. Under the terms of the plan, Rebekah was required to
                                                 4
undergo psychological evaluation as well as counseling. However, Rebekah did not complete all
the tasks required of her. The court did not order Charles to participate in services because doing
so might have required Charles to incriminate himself. The Department made an oral motion for
the court to dismiss the temporary managing conservatorship of B.N. and W.B.W., and the case
was ultimately dismissed.
       After years of denying that any abuse had occurred, in March 2010, B.N. made an outcry
that Charles had sexually abused her from the age of seven until she was seventeen. B.N. did not
report the abuse because she was afraid that Charles would kill her. Charles had pulled a gun on
her, threatened to kill her, and threatened to hurt her if she told. B.N. explained that she truly
believed that she “would have gotten killed, or very hurt” if she told anyone that Charles was
sexually abusing her. Tinney testified that because B.N. had moved out of the home and was
self-sufficient, the Department did not file a suit to remove her from Charles and Rebekah’s care.
W.B.W. was interviewed during the Department’s 2010 investigation and, at that time, denied
that Charles had abused her. The Department filed an “Original Petition for Protection of a
Child, For Conservatorship, and for Termination in a Suit Affecting the Parent-Child
Relationship” on March 31, 2010, and W.B.W. was removed from the home. Even though
Rebekah’s mother and two sisters lived nearby, Rebekah told the Department that there were no
relatives with whom W.B.W. could be placed. As a result, the Department placed W.B.W. in the
foster home of Donna Dragoo.
       Rebekah testified that she told W.B.W. that CPS was going to take her away because
B.N. said that Charles had hurt her. However, W.B.W.’s caseworker, Debbie Key, and licensed
professional counselor, Andra Ray, both testified that W.B.W. indicated that Rebekah had told
her she was being taken away because B.N. had lied about Charles. Rebekah admitted that she
refused to answer the Department’s questions when it removed W.B.W. Young County Sheriff’s
Captain Tim Bay testified that Rebekah was also uncooperative during his 2010 investigation of
B.N.’s outcry. When asked about her continuing to live with Charles after C.N. and B.N. had
made their outcries, Rebekah stated, “I had no reason from my home life and from the years I
had been with him and from the things that had been going on in my home that showed any --
that any of it was accurate.”
        Only one day after being removed from the home, W.B.W. began demonstrating signs of
“sexual acting out,” which Ray explained as possibly typical of sexual abuse victims. Dragoo
testified that she was W.B.W.’s foster mother from April 2, 2010, until November 25, 2010.
                                                5
Dragoo testified that the day that W.B.W. came into her care, she had emotional problems and
was sexually acting out. Specifically, that day Dragoo’s oldest daughter came and got her after
observing W.B.W. and a younger child playing a game. When Dragoo asked W.B.W. what was
going on, she became nervous and then finally admitted that they had been playing “the love
game.” W.B.W. told Dragoo that the love game is when you are naked and you are in bed
kissing and touching each other; she said that she had learned the game from movies that Charles
had her watch with him. Dragoo told W.B.W.’s caseworker about the incident.
       Dragoo testified that, about two weeks after “the love game incident,” W.B.W. made
sexually inappropriate comments about wanting to see a man and woman neighbor naked and
kissing each other. She again told Dragoo that she had learned these things from the movies she
watched with her dad. Key testified that, when W.B.W. described the behavior of the people in
the films, she said, “That’s what my daddy tells me love is.” W.B.W. continued to sexually act
out.
       During September 2010, Dragoo’s four-year-old daughter told Dragoo’s sister that
W.B.W. had shown her where her “tickle spot” was located and pointed between her legs.
Dragoo’s daughter also said that W.B.W. had touched her there. Dragoo asked W.B.W. how she
knew about her tickle spot, and W.B.W. said: “[I]t would usually happen when my -- when I
went to kiss my dad goodnight.” She said, “He would pull my pants down and touch me there.”
And she said, “I would ask him to stop.” Dragoo asked what W.B.W. would do when he would
not stop. W.B.W. replied, “I would yell for my mom to come in and make him stop” and
“[s]ometimes my mom would come in and see him touching me there and she would just say
don’t touch her there. She doesn’t need to know about that.” W.B.W. expressed confusion to
Dragoo about why her mom had not stopped her dad from touching her. Dragoo testified that
W.B.W. made it clear that Charles touched her more than once and that Rebekah saw him do it
on more than one occasion. W.B.W. never vacillated from her story that she called for her
mother several times and that her mother’s only response would be to tell Charles to stop.
       Tinney testified that, after W.B.W. made her outcry to Dragoo, she was taken to be
interviewed at Virginia House, an area child advocacy center. Forensic Interviewer Teresa
Kilpatrick interviewed W.B.W. while Tinney and Captain Bay watched from another room.
Tinney related that W.B.W. was able to express that she knew the difference between the truth
and a lie. W.B.W. used a drawing to describe how Charles had touched her on her vaginal area
with his finger. Tinney testified that, during her interview, W.B.W. said that she did not like her
                                                6
father because he had “done something wrong to her, touched her private parts.” W.B.W.
described how her father had pulled her pajama bottoms and panties down while she was lying
down and touched her “private parts” with his hand. W.B.W. also stated that she asked Rebekah
to make Charles stop and that Rebekah asked Charles to stop touching her. Tinney testified that
W.B.W. said that, except for her father, no one else had touched her in her private area or had
made her feel uncomfortable. Tinney testified that, during her investigation, she spoke with
Dragoo and there was no difference between what Dragoo told her that W.B.W. had said and
what W.B.W. said during the forensic interview.
       Ray began counseling W.B.W. on April 27, 2010, after W.B.W. started to sexually act
out at Dragoo’s home. W.B.W admitted to Ray that she had been playing the “love game” with
Dragoo’s children. Ray explained that, when a therapist is attempting to determine whether a
child’s sexual acting out is due to abuse, she looks for a pattern in the acting out, as a possible
sign that the child has been groomed. “Grooming,” she explained, is when “someone has
touched or has initiated some kind of early sexual experience with the child.” Ray testified that
the love game could have been learned in Charles and Rebekah’s home. Ray explained that,
when a child sexually acts out with another child, particularly one that is younger, that is one
sign that sexual abuse has occurred. Ray testified that W.B.W had been pulling down one
particular female foster child’s pants and touching the other child’s pelvic region; the other child
was younger than W.B.W. W.B.W also told Ray that she watched movies with Charles and that
people in the movies were kissing and were nude. The people in the movies demonstrated the
behaviors W.B.W. was displaying.
       Ray related that, on October 26, 2010, W.B.W. told her that she had told Dragoo that,
after Charles touched her, he said, “Don’t tell anyone or I will kill mom.” W.B.W. also told Ray
that Rebekah had seen Charles touching her and that all Rebekah did was tell him to stop. Ray
explained that it was not unusual for a sexually abused child to delay reporting sexual abuse.
       Ray testified that, in December 2010, she met with W.B.W. and assisted her in
completing a victim impact statement.        During the completion of the statement, W.B.W.
indicated that she wanted her dad to go to jail and get some help and that she was sad. She
indicated that the reason she did not live with her dad was because “he touched my private
parts.” When asked to write an answer to the statement, “Why I do not live with mom,” W.B.W.
wrote that it was because “she did not tell.” Ray related that W.B.W. continued to express
confusion regarding her mother’s failure to tell someone about what Charles was doing to her.
                                                 7
Ray testified that W.B.W. was consistent when relating what had happened to her and that she
did not vacillate.
        Ray again met with W.B.W before W.B.W. was to testify against her father at the
criminal trial. Ray noted that she was anxious. W.B.W. told her that Rebekah had recently
communicated a message to her from Charles. W.B.W. told Ray that Rebekah told her that
Charles wanted her to know that he loved her and wanted her to remember a special song that he
used to sing to her. W.B.W. did not want to see her dad and was afraid that he could still hurt
her. The only contact W.B.W. had with Charles was through her mother, and W.B.W. was very
unsettled when she heard the message. In Ray’s opinion, these comments were very harmful to
W.B.W. Ray met with W.B.W. again after Charles’s trial. She said that W.B.W. exhibited
“[e]xtreme relief” and that she was proud that she was able to answer the questions that had been
asked of her.
        Ray said that, if someone were to paint Charles in a positive light, it would endanger
W.B.W.’s physical and emotional welfare.          Ray testified that she believed a benefit of
terminating Rebekah’s parental rights to W.B.W. would be that W.B.W. would never have to
hear either about how wonderful her dad was or that he never did anything to her. Ray explained
that W.B.W. does not trust her mother to take care of her or to look out for her safety. Ray
would be very concerned if a third party continually supported Charles and continued to attempt
to validate W.B.W.’s relationship with him. W.B.W. still feared Charles, and any contact with
him would be traumatic for her.        Ray emphasized that it is very important that W.B.W
understand that her mother, or whoever is caring for her, believes her and accepts the things she
has reported about the sexual abuse. Ray did not believe that one who has regularly visited
Charles at the jail and who regularly continued to carry on correspondence with him appeared to
be someone who has distanced herself from W.B.W.’s abuser. Ray expressed her belief that, as
long as W.B.W’s mother continues to have ties to Charles, there is a “very big danger” to
W.B.W.
        On July 28, 2011, Charles was convicted of the following offenses:
                 1. Sexual assault of an adult, C.N., for which he was sentenced to twenty
        years;

               2. Sexual assault of a child, aggravated sexual assault of a child, and
        indecency with a child, sexual contact, for the offenses against B.N. and for which
        he was sentenced to three consecutive life sentences;

                                                 8
               3. Indecency with a child, W.B.W., by sexual contact for which he was
        sentenced to a life term to run consecutively with the other sentences;

                4. Aggravated assault with a deadly weapon and indecency with a child,
        B.M. (a friend of B.N.), by sexual contact, for which Charles was sentenced to
        two life terms to be served consecutively to the other sentences.

        After Charles was arrested for sexually abusing her children, Rebekah visited him in jail
ninety-six times. Rebekah admitted that, the week before W.B.W. was to testify against Charles
in his criminal trial, Rebekah conveyed the message to W.B.W. from Charles stating that he
loved her and wanted her to remember a special song that he used to sing for her. Rebekah
admitted she had been told that there was to be no contact between W.B.W. and Charles but that,
many times, she had conveyed to W.B.W. that Charles loved her.
        Rebekah was arrested on October 14, 2010, for failing to report sexual abuse of a child
and was not allowed contact with W.B.W. Rebekah was allowed supervised contact again in
February 2011.     Visitation was terminated again after Charles’s criminal trial due to the
communication she had with W.B.W.           The only contact that Rebekah has had with her
immediate family since Charles’s criminal trial has been with him.
        Rebekah testified that she had been providing financial support to Charles during his
incarceration and that she had visited him approximately 102 times. Rebekah admitted that she
had continued to visit Charles after his convictions for the offenses against her children. When
asked if she disbelieved the jury’s verdict in Charles’s seven convictions, Rebekah stated that she
did not know whether Charles did it but that she did not believe the jury had enough evidence to
convict him. She did not know if she believed her daughters. Up until the morning of trial in
this case, Rebekah stated that, if Charles were released from jail, he would be welcome in her
home.
        Rebekah attended counseling as was required in her service plan, but when asked what
she learned during counseling, Rebekah answered that there “really wasn’t much to learn” and
that she “just stopped going.” Key related that, although Rebekah completed her parenting
classes, she did not demonstrate the parenting skills that she had learned as required under her
service plan. Rebekah was required to work the services in her service plan and demonstrate that
she understood those services. Key was concerned about Rebekah’s resistance and related that
Rebekah did not feel that her children needed any counseling. Key testified that, although
Rebekah completed the initial four sessions of counseling, she was not able to show any
                                                9
“understanding or belief or empathy with the girls that anything happened.” Key related that
Rebekah did what she was supposed to do on paper but that she was not able to demonstrate
what she learned as far as providing a safe, appropriate, and protective home for her children.
Rebekah admitted that Dr. Brandon Bates, the psychologist who evaluated her in 2010, told her
that he would not recommend counseling because she was “adamant that nothing happened.”
Dr. Bates also found that Rebekah showed “excessive conformity” to Charles.                Rebekah
admitted that she really does not want a divorce from Charles and that she will never
acknowledge the fact that W.B.W. was sexually abused by him.
       Billie Jo is Rebekah’s mother. Richard is Billie Jo’s husband. Billie Jo
testified that, as soon as she learned that W.B.W. was in foster care, she went to the Department
and requested that W.B.W. come to live with Richard and her. W.B.W. has been living with
Billie Jo and Richard since November 29, 2010. Billie Jo stopped working in order to care for
W.B.W. full time. Billie Jo testified that W.B.W is doing “great” and that she is excelling at
school. Billie Jo related that W.B.W. has had some problems with nightmares about Charles
coming to get her, particularly around the time of the criminal trial, and that she has been there to
comfort W.B.W. W.B.W. goes to counseling on a regular basis. Billie Jo and Richard are
participating in the Fostering Connections program and have completed all of the required
classes.
       Both Billie Jo and Richard are in excellent health. Richard related that W.B.W. is busy
with horseback-riding lessons, soccer, and junior cheerleading at school. He described how he
and W.B.W. read every evening, and he indicated that she is at a fourth grade reading level even
though she is just entering the second grade. Billie Jo and Richard testified that they have
ensured that W.B.W. has regular contact with her sisters and other family members. Billie Jo
testified that she and Richard can provide W.B.W. with a stable, loving home and that they are
willing to protect her. They also plan on sending her to college. Billie Jo related that W.B.W. no
longer asks about her mother and recently asked Billie Jo, “Granny, can I live with you forever?”
Billie Jo expressed that she and Richard can meet W.B.W.’s emotional needs.                Mary Jo
Williams, a CASA worker assigned to W.B.W. since April 2010, has observed W.B.W. in Billy
Jo and Richard’s home and testified that she was “very happy. She had a horse and a dog and
just seemed very happy.”
       On October 31, 2011, the parental rights of Charles and Rebekah were terminated under
Family Code Section 161.001 as to the child, W.B.W.             Charles’s rights to W.B.W. were
                                                 10
terminated under Section 161.001(1), subsections (A), (D), (E), (L), (N), (O), and (Q). TEX.
FAM. CODE ANN. § 161.001(1)(A), (D), (E), (L), (N), (O), (Q) (West Supp. 2011). Rebekah’s
rights to W.B.W. were terminated under subsections (D) and (E). Section 161.001(1)(D), (E).
The jury also found that termination of Charles’s and Rebekah’s parental rights to W.B.W. is in
the child’s best interest. TEX. FAM. CODE ANN. § 161.001(2) (West Supp. 2011). The trial court
appointed the Department as the child’s managing conservator and intervenors, Billie Jo and
Richard and “Ann,”2 as the child’s joint possessory conservators.
                                              Rebekah’s Appeal
       In her first issue, Rebekah challenges the legal and factual sufficiency of the evidence to
support the jury’s findings that Rebekah either (1) knowingly placed or knowingly allowed
W.B.W. to remain in conditions or surroundings that endangered her physical or emotional well-
being or (2) engaged in conduct or knowingly placed W.B.W. with persons who engaged in
conduct that endangered W.B.W.’s physical or emotional well-being.           In her second issue,
Rebekah challenges the legal and factual sufficiency of the evidence to support the jury’s finding
that it was in the best interest of W.B.W. for Rebekah’s parental rights to be terminated.
                                              Standard of Review
       Texas courts have long recognized that the natural right existing between a parent and
child is of “constitutional dimensions.” Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976).
There is a strong presumption that the best interest of a child is served by keeping the child with
the natural parent. In re G.M., 596 S.W.2d 846 (Tex. 1980). Thus, involuntary termination
proceedings and statutes are strictly scrutinized in favor of the parent. Holick v. Smith, 685
S.W.2d 18, 20–21 (Tex. 1985).
       Due process requires that the grounds for termination be established by clear and
convincing evidence. This requires a 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 2008); Transp. Ins. Co. v. Moriel, 879
S.W.2d 10, 31 (Tex. 1994).
       When conducting a legal sufficiency review, we review the entire record in the light most
favorable to the finding and determine whether a reasonable trier of fact could have formed a
firm belief or conviction that its finding was true. City of Keller v. Wilson, 168 S.W.3d 802, 817

       2
        “Ann” is W.B.W.’s paternal grandmother.
                                                     11
(Tex. 2005); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). We must assume that the factfinder
resolved disputed facts in favor of its finding. Phillips v. Tex. Dep’t of Protective & Regulatory
Servs., 149 S.W.3d 814, 817 (Tex. App.—Eastland 2004, no pet.). We must also disregard all
evidence that a reasonable factfinder could have disbelieved or found incredible. In re J.F.C., 96
S.W.3d at 266.
       When conducting a factual sufficiency review, we review the entire record, including
evidence in support of and contrary to the judgment, and give due consideration to evidence the
jury could have found to be clear and convincing. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002).
We then determine whether the evidence is such that a factfinder could reasonably form a firm
belief or conviction about the truth of the State’s allegations. Id. We also consider whether any
disputed evidence is such that a reasonable factfinder could not have resolved that evidence in
favor of its finding. In re J.F.C., 96 S.W.3d at 266.
                                     Grounds for Termination
       To terminate parental rights, the proponent must prove by clear and convincing evidence
that a parent committed one or more of the acts or omissions set forth in Section 161.001(1) and
that termination of parental rights is in the child’s best interest. Section 161.001; In re J.L., 163
S.W.3d 79, 84 (Tex. 2005). Section 161.001(1)(D) provides that 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
that endanger the physical or emotional well-being of the child. Section 161.001(1)(E) allows
for termination of parental rights if the parent “engaged in conduct or knowingly placed the child
with persons who engaged in conduct which endangers the physical or emotional well-being of
the child.”
       Under subsection (D), it is necessary to examine evidence related to the environment of
the children to determine if the environment was the source of endangerment to the children's
physical or emotional well-being. In re D.T., 34 S.W.3d 625, 630 (Tex. App.—Fort Worth 2001,
pet. denied) (op. on reh’g). Under subsection (E), the relevant inquiry is whether evidence exists
that the endangerment of the child’s physical well-being was the direct result of the parent’s
conduct, including acts, omissions, or failures to act. In re D.O., 338 S.W.3d 29, 33 (Tex.
App.—Eastland 2011, no pet.). Additionally, termination under Section 161.001(1)(E) must be
based on more than a single act or omission; a voluntary, deliberate, and conscious course of

                                                 12
conduct by the parent is required. In re D.T., 34 S.W.3d at 634; In re K.M.M., 993 S.W.2d 225,
228 (Tex. App.—Eastland 1999, no pet.).
       “Endanger” means more than a threat of metaphysical injury or a less-than-ideal
environment: the conduct need not actually injure the child nor is it necessary that the conduct be
directed at the child. Tex. Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987).
“Conduct” includes not only acts but omissions. In re D.O., 338 S.W.3d at 33.
       It is “beyond question” that sexual abuse constitutes conduct that endangers a child’s
physical or emotional well-being. In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth
2004, pet. denied). “[E]vidence of sexual abuse of one child is sufficient to support a finding of
endangerment with respect to other children.” Id. Section 161.001(1)(E) does not require actual
injury before a parent’s parental rights may be terminated. In re D.O., 338 S.W.3d at 34.
Evidence that a parent continued to live with, or left the children in the care of, a person whom
she knew had sexually abused the children in the past supports termination under
Section 161.001(1)(D). In re Tidwell, 35 S.W.3d 115, 118–20 (Tex. App.—Texarkana 2000, no
pet.); In re L.S., 748 S.W.2d 571, 575 (Tex. App.—Amarillo 1988, no writ). A parent’s refusal
to leave a situation that exposes a child to the risk of sexual abuse constitutes “conduct” that
supports termination of parental rights under Section 161.001(1)(E). In re R.G., 61 S.W.3d at
668–70; In re Tidwell, 35 S.W.3d at 119–20; In re J.M.C.A., 31 S.W.3d 692, 698 (Tex. App.—
Houston [1st Dist.] 2000, no pet.); In re A.C., 758 S.W.2d 390, 393 (Tex. App.—Fort Worth
1988, no writ). Evidence that a parent knew or should have known of the risk that the child
would be sexually abused was sufficient to support termination under subsections (D) and (E).
See In re A.B., 125 S.W.3d 769, 775 (Tex. App.—Texarkana 2003, pet. denied); In re Tidwell,
35 S.W.3d at 118. Sexual abuse of one child in a home is sufficient to support the finding that
other children in the home who were not sexually abused were allowed to remain in “conditions
or surroundings” that endangered the children’s emotional or physical well-being. In re L.C.,
145 S.W.3d 790, 799–800 (Tex. App.—Texarkana 2004, no pet.); In re Tidwell, 35 S.W.3d at
120.
                                             Analysis
       In this case, the Department presented evidence that Rebekah’s actions and her failure to
act endangered W.B.W.       Although the Department had to establish only one ground for
termination, the evidence was legally and factually sufficient to support termination under either

                                                13
subsection (D) or (E) of Texas Family Code Section 161.001(1). See In re J.L., 163 S.W.3d at
84 (petitioner must establish only one ground listed under Section 161.001(1)).
       Rebekah allowed Charles to be alone with her children knowing that he had been
convicted of indecency with a child. She continued to allow Charles to be alone with W.B.W.
and her other children after the children made sexual abuse allegations against him. Rebekah
admitted that she knew Charles had paid C.N. and B.N. to massage him and that she allowed him
to take them individually on overnight trips even after it was alleged that C.N. touched Charles’s
penis on one of these trips. The evidence reflects that Rebekah saw Charles sexually abusing
W.B.W. on multiple occasions and did not stop the abuse or otherwise protect W.B.W. Rebekah
also communicated a message from Charles to W.B.W.—directly before W.B.W. was to testify
against him at his criminal trial—after having been ordered not to mention Charles to W.B.W.
Rebekah has refused to acknowledge Charles’s sexual abuse of W.B.W. or her other children
despite his multiple convictions for committing sexual abuse against them, and she has
maintained a relationship with and has supported Charles since he has been incarcerated.
       The evidence shows that, from the outset, Rebekah has maintained an attitude of willful
ignorance about her husband’s proclivities. Rebekah’s treatment of C.N. sent a message to her
other children that outcries would be ignored and that outcriers would be shunned. She set an
impossible bar for her children to meet, stating that she would have to see the abuse with her
own eyes in order to believe it. This was an unattainable standard because Rebekah frequently
allowed her husband unsupervised access to her children. The level of access allowed was such
that others found it unseemly. This created an environment where abuse was allowed to flourish
unchecked.
       For purposes of a factual sufficiency review, we must consider whether any disputed
evidence is such that a reasonable factfinder could not have resolved that evidence in favor of its
finding. In re J.F.C., 96 S.W.3d at 266. Rebekah maintains that she was unaware of any abuse
occurring in her home. However, some evidence showed that Rebekah saw W.B.W. being
abused and did nothing. The jury, as the sole judge of credibility, was entitled to resolve the
evidence in favor of its finding. TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007), art. 38.04
(West 1979). The jury was free to believe or disbelieve all or any part of any witness’s
testimony. Sharp v. State, 707 S.W.2d 611, 614 (Tex. Crim. App. 1986).
       Even if Rebekah had not seen W.B.W. being abused with her own eyes, the jury may
have found that she knew at least of the risk of sexual assault. Rebekah argues that the
                                                14
Department allowed the children to return to the home after the 2003 and 2008 investigations. “If
the Department, with all its many resources, could not or would not do anything about a
perceived threat,” she reasons, “how could Appellant have know[n] what was happening?” It is
the burden of a parent to provide a safe environment for her children, regardless of the ability of
the Department to make its case for removal. Rebekah states that, if Charles was able to deceive
the Department, then she should not be faulted for being deceived as well. However, the
Department was not deceived. The 2003 investigation was resolved with a finding of “reason to
believe” that abuse had occurred. In 2008, the finding was “unable to determine” abuse of B.N.
and W.B.W. and “reason to believe” that Rebekah had been neglectful in supervision. The jury
may reasonably have found that Rebekah’s failure to protect W.B.W. from Charles under these
circumstances constitutes, at the least, endangerment by omission. In re M.J.M.L., 31 S.W.3d
347, 350 (Tex. App.—San Antonio 2000, pet. denied). The jury may have found that, if she did
not actually know about the abuse, then she was at least aware of the potential for danger that
W.B.W. would be sexually abused and ignored that risk. This is sufficient to support termination
under subsections (D) and (E). See In re A.B., 125 S.W.3d at 775; In re Tidwell, 35 S.W.3d at
118. The disputed evidence is not such that a reasonable factfinder could not have resolved that
evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266.
       The evidence is both legally and factually sufficient to support the jury’s finding of
termination pursuant to Rebekah’s conduct in violation of Family Code Section 161.001(1)(D)
and (E). Rebekah’s first issue is overruled.
                                      Best Interest of the Child
       In her second issue, Rebekah argues that the evidence was legally and factually
insufficient to show that termination was in the best interest of W.B.W. To terminate the parent-
child relationship, the jury must also find that termination is in the best interest of the child. Tex.
Dep’t of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987). Best interest does not require
proof of any unique set of factors. In re W.E.C., 110 S.W.3d 231, 240 (Tex. App.—Fort Worth
2003, no pet.). But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not limited to,
(1) the desires of the child, (2) the emotional and physical needs of the child 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) the programs available to assist these individuals
to promote the best interest of the child, (6) the plans for the child by these individuals or by the
                                                  15
agency seeking custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent-child relationship is not a
proper one, and (9) any excuse for the acts or omissions of the parent. Id. Additionally,
evidence that proves one or more statutory grounds for termination may also constitute evidence
illustrating that termination is in the child’s best interest. In re C.J.F., 134 S.W.3d 343, 354
(Tex. App.—Amarillo 2003, no pet.).
       The evidence that Rebekah endangered W.B.W.’s physical and emotional well-being,
discussed above, also supports the finding that termination was in W.B.W.’s best interest.
Additionally, the jury could reasonably consider Rebekah’s refusal to believe her children, even
after Charles was convicted by a jury of five counts of abuse against them, as evidence of poor
parenting skills. Nearly all of the witnesses at the trial expressed concern about Rebekah
allowing or encouraging W.B.W.’s continued contact with Charles in the future via letters or
visits to the prison. Rebekah’s attempted emotional blackmail of W.B.W. on the eve of her
testimony against Charles in his criminal case could also be viewed as a cause for concern for
W.B.W.’s future emotional well-being if left in Rebekah’s care. By conveying this message
from Charles, Rebekah violated a court order that prohibited her from discussing Charles with
W.B.W. and inflicted significant emotional damage on W.B.W., who lived in fear of her father
and still required a great deal of healing.
       The Department and several other witnesses made it clear that Rebekah will almost
certainly expose W.B.W. to Charles. Dr. Bates and Ray both attested to the devastating effect
that contact with Charles would have on W.B.W. Rebekah’s refusal to cut ties with Charles
herself, coupled with her testimony that she would allow W.B.W. to visit Charles when W.B.W
was older, could also be seen as evidence of poor judgment and faulty parenting skills. Rebekah
admitted that she will never acknowledge that W.B.W. was abused by Charles. Ray testified that
it is critical that W.B.W. be believed by her caregiver and that, even if there is no mention of
Charles, W.B.W. is intelligent and perceptive and would be able to determine that Rebekah did
not believe her. Several witnesses agreed that Rebekah was incapable of being protective of
W.B.W. in the future.
       On the other hand, there was evidence that the placement with Billie Jo and Richard was
an appropriate one. Several witnesses agreed that Billie Jo and Richard could meet W.B.W.’s
present and future physical and emotional needs and would continue to provide her with a loving
and nurturing home in which she could achieve permanency. Although she expresses a desire to
                                              16
be with her mother, W.B.W. also vocalizes a wish to remain with Billy Jo and Richard. By all
accounts, W.B.W. is happy with Billy Jo and Richard, and she is slowly recovering from her
ordeal.
          The evidence is legally and factually sufficient to support the finding that the termination
of Rebekah’s parental rights was in the best interest of W.B.W. Accordingly, Rebekah’s second
issue is overruled.
                                           Charles’s Appeal
          In his first four issues, Charles attacks the trial court’s decisions to allow or exclude
evidence. He objects to the admission of evidence of his prior convictions and of testimony that
he asserts was privileged as a communication to a member of the clergy. He objects to the
exclusion of evidence of his polygraph results and psychological evaluation. In his fifth issue,
Charles asserts that the trial court erred by refusing his requested instruction to the jury that the
court delineate his rights under the Fifth Amendment. See U.S. CONST. amend. V. Only in his
first issue does Charles attack a specific ground for termination, but we will address his other
issues as well by interpreting his argument to be that the trial court’s error prejudiced the
outcome as to each and every ground for termination.
                                          Standard of Review
          Whether the trial court erred in admitting or excluding evidence depends upon whether it
abused its discretion. In re K.S., 76 S.W.3d 36, 42 (Tex. App.—Amarillo 2002, no pet.).
Furthermore, a trial court abuses its discretion when the decision fails to comport with
controlling rules and principles. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43
(Tex. 1998). Yet, should an evidentiary ruling constitute an abuse of discretion, the case will not
be reversed unless the error is harmful, that is, unless it probably caused the rendition of an
improper judgment. Id.; see TEX. R. APP. P. 44.1(a). This normally obligates the complainant to
show that the judgment turned on the particular evidence excluded or admitted. In re K.S., 76
S.W.3d at 42.
          The decision of whether to submit a particular instruction is reviewed for an abuse of
discretion. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex. 2006). A trial court abuses its
discretion if it acts in an arbitrary or unreasonable manner without reference to any guiding rules
or principles. In re K.S., 76 S.W.3d at 42; Walker v. Gutierrez, 111 S.W.3d 56, 62 (Tex. 2003).
The essential inquiry is whether the instruction or definition aids the jury in answering the
questions. Lee v. Lee, 47 S.W.3d 767, 789 (Tex. App.—Houston [14th Dist.] 2001, pet. denied);
                                                  17
see also Sterling Trust Co. v. Adderley, 168 S.W.3d 835, 842–43 (Tex. 2005). A court is given
wide latitude to determine the sufficiency of explanatory instructions and definitions. Plainsman
Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995). A trial court’s error in refusing an
instruction is reversible if it “probably caused the rendition of an improper judgment.”
Rule 44.1(a); Union Pac. R.R. Co. v. Williams, 85 S.W.3d 162, 166 (Tex. 2002).
                                         Prior Convictions
       In his first issue, Charles asserts that the trial court erred in allowing evidence before the
jury of his felony convictions based upon the same conduct that was the subject of the
termination action because the convictions were pending appeal. Testimony regarding Charles’s
seven convictions for various crimes perpetrated against his daughter, stepdaughters, and an
additional juvenile was allowed into evidence over the running objection of his attorney. The
Austin court of appeals has addressed whether convictions must be final before being admissible
in a termination suit, and the Amarillo court of appeals has followed that decision. Rian v. Tex.
Dep’t of Family & Protective Servs., No. 03-08-00155-CV, 2009 WL 2341868, at *1–2 (Tex.
App.—Austin July 31, 2009, pet. denied) (mem. op.); see In re T.C.C.H., No. 07-11-00179-CV,
2011 WL 6757409, at *9 (Tex. App.—Amarillo Dec. 22, 2011, no pet.) (mem. op.). Although
the Rian court was concerned with Section 161.001(1)(L) and Charles specifically complains of
the admissibility of the evidence for purposes of subsection (Q), we find that Rian is dispositive.
Section 161.001(1)(L) is a ground for termination that is based on the parent’s conviction of any
of an enumerated list of specific offenses. Section 161.001(1)(Q) is a ground for termination that
is based on any conviction that prevents the parent from caring for his child for at least two years
from the date of the filing of the petition for termination. Neither section explicitly requires that
the prior conviction be final. Here, subsections (L) and (Q) were both among the grounds for
termination submitted to the jury.
       Like the appellant in Rian, Charles contends that the evidence of his convictions was
inadmissible because the convictions were being appealed and therefore were not final. He cites
TEX. R. EVID. 609, 803(22) and Juan A___ v. Dallas Cnty. Child Welfare, 726 S.W.2d 241, 245
(Tex. App.—Dallas 1987, no writ), for this proposition. As the Department has noted, Juan
A___ was decided ten years prior to the enactment of the mandatory dismissal deadline codified
as Family Code Section 263.401. TEX. FAM. CODE ANN. § 263.401 (West 2011). The Rian court
found support for its decision in the strict timelines of Section 263.401 for pursuing a

                                                 18
termination. We find the Austin court’s reasoning regarding this timeline to be especially
persuasive:
                The strict time requirements [in Section 263.401] for prosecuting
        termination cases to finality . . . add contextual weight to the view that the
        legislature intended non-final convictions to be admissible in termination cases. It
        is probable that criminal prosecutions and terminations based on the same
        behaviors will proceed in parallel, that evidence of the trial court’s resolution of
        the criminal proceeding will be useful to the court considering the termination
        proceeding, and that the time constraints will mean that the termination
        proceeding will often occur before appeals in the criminal proceeding are
        exhausted.

Rian, 2009 WL 2341868, at *2. Here, as in Rian, Rules of Evidence 609 and 803(22) do not
apply because the evidence was not being used to impeach but for another purpose, to show that
parental rights should be terminated. Rian, 2009 WL 2341868, at *1. The court found it
significant that the legislature included no finality requirement in Section 161.001 when deciding
that certain criminal convictions committed under particular circumstances would support
termination of parental rights.    Id.   It “conclude[d] that the legislature intended to permit
termination under section 161.001 based on conviction without regard to whether appeals were
exhausted.” Id. We agree. We find the analysis of the Rian court dispositive of Charles’s
challenge, and we hold that the trial court did not abuse its discretion. Accordingly, we overrule
Charles’s first issue.
                            Communications-to-Clergyman Privilege
        In his second issue, Charles argues that the trial court erred in allowing evidence before
the jury that consisted of his communications with a clergyman, in violation of the
communications-to-clergyman privilege of TEX. R. EVID. 505. The court allowed Pastor Wayne
Harden to testify about certain conversations that took place between himself and Charles and
also about things that Pastor Harden had witnessed.
        A person has a privilege to refuse to disclose and to prevent another from disclosing a
confidential communication by the person to a member of the clergy in the member’s
professional character as a spiritual adviser. Rule 505(b). However, in a proceeding regarding
the abuse or neglect of a child, evidence may not be excluded on the ground of privileged
communication except in the case of communications between an attorney and client. TEX. FAM.
CODE ANN. § 261.202 (West 2008). Further, the legislature chose the broad term “proceeding,”

                                                19
indicating the applicability of Section 261.202 to any proceeding, criminal or civil.          See
Section 261.202.
       Because this was a proceeding regarding the abuse or neglect of a child, Charles was not
entitled to invoke the clergy privilege. Furthermore, the privilege, were it applicable, only
extends to communications addressed to a clergyman in his professional capacity as a spiritual
advisor, not to every private communication made to a clergy member. Rule 505(b); Kos v.
State, 15 S.W.3d 633, 639–40 (Tex. App.—Dallas 2000, pet. ref’d). Charles’s relationship with
Pastor Harden extended beyond that of clergyman and church member. According to Pastor
Harden, the two were at one time friends and colleagues. The communication in question was
not addressed to Pastor Harden in his professional capacity as a spiritual advisor.            The
communication between the two men took place during a car ride on their way home from an
out-of-town job for Charles’s mold remediation company. Charles did not preface his comments
with any request for secrecy or spiritual guidance. According to Pastor Harden, he “[d]idn't say,
Preacher, I want to tell you something in private”; he merely began “popping off” with a
sexually explicit story—something he had also done on other occasions.            It is clear that
Pastor Harden was not acting in his role as a spiritual advisor; his response to Charles was not to
give advice but to tell him to “[s]hut [his] mouth” and to tell him that he did not “want to hear
that mess.” The privilege does not apply, and even if it did, the communications at issue would
not be protected by it. Charles’s second issue is overruled.
                                        Polygraph Testing
       In his third issue, Charles contends that the trial court erred in excluding evidence of his
polygraph test results or any discussion regarding that examination. In 2003, after C.N.’s outcry,
Rebekah personally investigated the accusations against Charles. She took Charles to several
professionals at her own expense, and Charles underwent a polygraph test and a psychological
evaluation. Rebekah’s counsel made an offer of proof regarding her 2003 investigation. The
objections made to this evidence were that it was hearsay, that it would tend to confuse the jury,
and that evidence regarding polygraph testing is inherently unreliable. The trial court ruled that
the results of the polygraph were inadmissible. In addition, the court ruled that Rebekah could
discuss her investigation to show that she took some action but that there would be no mention at
all of any polygraph test. Rebekah testified that in 2003 she conducted her own investigation,
hired a psychologist, and was satisfied by her findings.

                                                20
        At trial, Charles argued that evidence of the polygraph examination was not hearsay
because it was not being offered for the truth of its findings. This evidence, he contends, was
merely offered to rebut the Department’s assertion that neither parent made efforts to determine
whether he had acted inappropriately with the children. “[R]eferences to a polygraph test, or to
its results, are inadmissible for all purposes.” Martinez v. State, 272 S.W.3d 615, 626 (Tex.
Crim. App. 2008) (emphasis added). They are inadmissible in civil cases as well as criminal.
Posner v. Dallas Cnty. Child Welfare Unit of Tex. Dep’t of Human Servs., 784 S.W.2d 585, 588
(Tex. App.—Eastland 1990, writ denied); In re B.N.B., 246 S.W.3d 403, 410 (Tex. App.—Dallas
2008, no pet.). The reason for this rule is that polygraph examinations are inherently unreliable
and tend to be unduly persuasive. Gregory v. State, 56 S.W.3d 164, 173 (Tex. App.—Houston
[14th Dist.] 2001, pet. dism’d). The trial court allowed Rebekah to testify that she had taken
investigative action to determine whether Charles had behaved inappropriately in 2003. The jury
was not, as appellant contends, left with the impression that the parents had done nothing to
dispute the 2003 allegations. The trial court did not abuse its discretion. Charles’s third issue is
overruled.
                                        Psychological Evaluation
        In his fourth issue, Charles argues that the trial court erred in excluding evidence of his
psychological evaluation, which included an evaluation of his predilection to pedophilia. During
the offer of proof, the Department objected to the admission of Charles’s psychological
evaluation on the basis that it contained hearsay. “‘Hearsay’ is a statement, other than one made
by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of
the matter asserted.” TEX. R. EVID. 801(d). Charles did not argue that the evidence fit within an
exception to the hearsay rule but, rather, that it was not hearsay because it was not being offered
for the truth of the matter asserted.
        Charles contends that he was not attempting to prove the reliability or truth of the results
of the evaluation but was merely offering the fact that he had undergone an evaluation to rebut
the Department’s assertion that neither parent made efforts to determine whether he had acted
inappropriately with the children. However, the fact that he had undergone an evaluation was
not what was excluded by the trial court. Although even the mention of the word “polygraph”
was forbidden by a motion in limine, discussion of the psychological evaluation was not
forbidden by the trial court. The court specifically excluded the documents associated with the
psychological evaluation but ruled that Rebekah could testify about what action she took. When
                                                  21
Charles’s counsel asked whether he could ask about what specific steps Rebekah had taken, the
trial judge replied, “I'm not going to tell you what to ask her and not ask her.” Rebekah was
allowed to testify that she had taken investigative action, including hiring a psychologist. She
was also allowed to testify generally that Charles had undergone testing by professionals, stating:
“It was some good testing by some qualified people, and it gave me some peace.” Charles’s
counsel was permitted to ask Rebekah, “Now, so you get through all this [in] 2003, all the testing
and what you’ve done. Do you feel at this point that through your own investigation that you
believe that you made a conclusion that nothing happened in 2003?” However, Rebekah was
never asked specifically about a “psychological evaluation.” Thus, the exclusion of the document
itself is the only issue that Charles can complain of on appeal.
       Because Charles’s stated reason to admit the evidence could be accomplished by
permitting Rebekah to testify concerning actions she took to investigate in 2003, the trial court
was within its discretion to find that there was no other purpose for which the evaluation could
have been offered than for the truth of its contents. In addition, the trial court was within its
discretion to decide that the evaluation itself would have been cumulative of Rebekah’s
testimony and that admitting the evaluation with a limiting instruction would have needlessly
confused the jury. See TEX. R. EVID. 403. The trial court did not abuse its discretion. Charles’s
fourth issue is overruled.
                                           Jury Instruction
       In his fifth and final issue, Charles asserts that the trial court erred by refusing his request
that, as a part of the court’s jury charge, the trial court instruct the jury as to his rights under the
Fifth Amendment to the United States Constitution. Charles’s trial counsel did not object to the
trial court’s instruction regarding what inference the jury was allowed to draw from Charles’s
invocation of his Fifth Amendment rights. However, counsel requested that, in addition to this
instruction, the court also “set forth that [Charles] had the right to take the Fifth Amendment
under our laws of the United States.” On appeal, Charles argues that his Fifth Amendment rights
should have been delineated in the charge in order to explain to the jury what rights were
accorded him.
       However, counsel did not tender an objection and a substantially correct instruction in
writing to the trial court. Texas Rule of Civil Procedure 278 requires a party to request and
tender to the trial court a substantially correct instruction in writing when the trial court omits a
requested instruction from the jury charge. TEX. R. CIV. P. 278; Medistar Corp. v. Schmidt, 267
                                                  22
S.W.3d 150, 159 (Tex. App.—San Antonio 2008, pet. denied); McCarthy v. Wani Venture, 251
S.W.3d 573, 585–86 (Tex. App.—Houston [1st Dist.] 2007, pet. denied) (citing Yellow Cab &
Baggage Co. v. Green, 277 S.W.2d 92, 93 (Tex. 1955)). Merely dictating a requested instruction
to the court reporter is not sufficient to support an appeal based on the trial court’s refusal to
submit the instruction. Hartnett v. Hampton Inns, Inc., 870 S.W.2d 162, 165 (Tex. App.—
San Antonio 1993, writ denied). If a party fails to tender a substantially correct instruction in
writing, any error by the trial court in not submitting the instruction to the jury is waived.
Medistar Corp., 267 S.W.3d at 159; Hartnett, 870 S.W.2d at 166.
       Here, because there was no offer of a substantially correct instruction in writing, we are
unable to determine whether the proposed instruction amounts to a substantially correct
instruction. Dictating to the court reporter a requested instruction is insufficient to preserve
error. See Hartnett, 870 S.W.2d at 165. It follows that, when there was no suggested instruction
given, only the request that rights be “set out,” error was not sufficiently preserved. Otherwise,
the appellate court would be required to ascertain for itself the language of the proposed
instruction based on a reading of the transcript of Charles’s objections to the trial court. The
record does not reflect that Charles submitted to the court in writing a substantially correct jury
instruction. Therefore, we conclude that Charles has waived any error regarding his requested
instruction. Charles’s fifth issue is overruled.
       The order of the trial court is affirmed.

                                                            ERIC KALENAK
                                                            JUSTICE

July 12, 2012
Panel consist of: Wright, C.J.,
McCall, J., and Kalenak, J.

                                                   23


                              UNPUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT

                              No. 95-7354

ROGER D. YOUNG,

                                             Plaintiff - Appellant,

          versus

KEITH HESTER; W. V. RITCHIE,

                                            Defendants - Appellees.

Appeal from the United States District Court for the Eastern Dis-
trict of North Carolina, at Raleigh. James C. Fox, Chief District
Judge. (CA-93-717-CT-5-F)

Submitted:   March 21, 1996                 Decided:   April 2, 1996

Before NIEMEYER and MICHAEL, Circuit Judges, and BUTZNER, Senior
Circuit Judge.

Affirmed by unpublished per curiam opinion.

Roger D. Young, Appellant Pro Se. Mark J. Pletzke, NORTH CAROLINA
DEPARTMENT OF JUSTICE, Raleigh, North Carolina, for Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
PER CURIAM:

     Appellant appeals from the district court's order denying

relief on his 42 U.S.C. § 1983 (1988) complaint. We have reviewed

the record and the district court's opinion and find no reversible

error. Accordingly, we affirm on the reasoning of the district

court. Young v. Hester, No. CA-93-717-CT-5-F (E.D.N.C. Aug. 3,
1995). We dispense with oral argument because the facts and legal

contentions are adequately presented in the materials before the

court and argument would not aid the decisional process.

                                                           AFFIRMED

                                2


                                                                         [DO NOT PUBLISH]

                   IN THE UNITED STATES COURT OF APPEALS

                             FOR THE ELEVENTH CIRCUIT
                              ________________________           FILED
                                                        U.S. COURT OF APPEALS
                                     No. 11-11352         ELEVENTH CIRCUIT
                                                              MAY 11, 2012
                                 Non-Argument Calendar
                                                               JOHN LEY
                               ________________________
                                                                CLERK

            D. C. Docket Nos. 1:10-cv-01612-TCB; 09-BKC-78173-PWB

In Re:
                  LORRAINE MCNEAL,

                                                                                Debtor.

---------------------------------------------------------------------------------------------------

LORRAINE MCNEAL,

                                                                            Plaintiff-Appellant,

         versus

GMAC MORTGAGE, LLC,
HOMECOMINGS FINANCIAL, LLC,
a GMAC company,

                                                                        Defendants-Appellees.
                   _________________________________________

                      Appeal from the United States District Court
                         for the Northern District of Georgia
                   _________________________________________

                                        (May 11, 2012)

Before TJOFLAT, EDMONDSON, and CARNES, Circuit Judges.

PER CURIAM:

       Lorraine McNeal appeals the district court’s affirmance of the bankruptcy

court’s denial of McNeal’s “Motion to Determine the Secured Status of Claim.”

In her motion, McNeal sought to “strip off”1 a second priority lien on her home,

pursuant to 11 U.S.C. § 506(a) and (d). Reversible error has been shown; we

reverse and remand for additional proceedings.

       McNeal filed a voluntary petition for bankruptcy under Chapter 7 of the

Bankruptcy Code. In her petition, McNeal reported that her home was subject to

two mortgage liens: a first priority lien in the amount of $176,413 held by HSBC

and a second priority lien in the amount of $44,444 held by Homecomings

Financial, LLC, a subsidiary of GMAC Mortgage, LLC (collectively, “GMAC”).

       1
          In bankruptcy terms, a “strip down” of an undersecured lien reduces the lien to the value
of the collateral to which it attaches and a “strip off” removes a wholly unsecured lien in its
entirety.

                                                 2
McNeal also reported that her home’s fair market value was $141,416. The parties

do not dispute these factual allegations.

      McNeal then sought to “strip off” GMAC’s second priority lien, pursuant to

sections 506(a) and 506(d). McNeal contended that, because the senior lien

exceeded the home’s fair market value, GMAC’s junior lien was wholly unsecured

and, thus, void under section 506(d). The bankruptcy court denied the motion,

concluding that section 506(d) did not permit a Chapter 7 debtor to “strip off” a

wholly unsecured lien. The district court affirmed.

      When the district court affirms the bankruptcy court’s order, we review only

the bankruptcy court’s decision on appeal. Educ. Credit Mgmt. Corp. v. Mosley,

494 F.3d 1320, 1324 (11th Cir. 2007). And we review the bankruptcy court’s

legal conclusions de novo. Hemar Ins. Corp. of Am. v. Cox, 338 F.3d 1238, 1241

(11th Cir. 2003).

      That GMAC’s junior lien is both “allowed” under 11 U.S.C. § 502 and

wholly unsecured pursuant to section 506(a) is undisputed.2 To determine whether

      2
          11 U.S.C. § 506(a) provides in pertinent part:

      An allowed claim of a creditor secured by a lien on property in which the estate
      has an interest . . . is a secured claim to the extent of the value of such creditor’s
      interest in such property . . . and is an unsecured claim to the extent that the value
      of such creditor’s interest . . . is less than the amount of such allowed claim.

                                                  3
such an allowed -- but wholly unsecured -- claim is voidable, we must then look to

section 506(d), which provides that “[t]o the extent that a lien secures a claim

against a debtor that is not an allowed secured claim, such lien is void.” See 11

U.S.C. § 506(d).

       Several courts have determined that the United States Supreme Court’s

decision in Dewsnup v. Timm, 112 S. Ct. 773 (1992) -- which concluded that a

Chapter 7 debtor could not “strip down” a partially secured lien under section

506(d) -- also precludes a Chapter 7 debtor from “stripping off” a wholly

unsecured junior lien such as the lien at issue in this appeal. See, e.g., Ryan v.

Homecomings Fin. Network, 253 F.3d 778 (4th Cir. 2001); Talbert v. City Mortg.

Serv., 344 F.3d 555 (6th Cir. 2003); Laskin v. First Nat’l Bank of Keystone, 222

B.R. 872 (B.A.P. 9th Cir. 1998). But the present controlling precedent in the

Eleventh Circuit remains our decision in Folendore v. United States Small Bus.

Admin., 862 F.2d 1537 (11th Cir. 1989). In Folendore, we concluded that an

allowed claim that was wholly unsecured -- just as GMAC’s claim is here -- was

voidable under the plain language of section 506(d).3 862 F.2d at 1538-39.

       3
      Although Folendore addressed the 1978 version of the Bankruptcy Code, the 1984
amendments to the Code did not alter the pertinent language in section 506(a) or (d).

                                             4
      A few bankruptcy court decisions within our circuit -- including the

decision underlying this appeal -- have treated Folendore as abrogated by

Dewsnup. See, e.g., In re McNeal, No. A09-78173, 2010 Bankr. LEXIS 1350, at

*9-12 (Bankr. N.D. Ga. Apr. 9, 2010); In re Swafford, 160 B.R. 246, 249 (Bankr.

N.D. Ga. 1993); In re Windham, 136 B.R. 878, 882 n.6 (Bankr. M.D. Fla. 1992).

But Folendore -- not Dewsnup -- controls in this case.

      “Under our prior panel precedent rule, a later panel may depart from an

earlier panel’s decision only when the intervening Supreme Court decision is

‘clearly on point.’” Atl. Sounding Co., Inc. v. Townsend, 496 F.3d 1282, 1284

(11th Cir. 2007). Because Dewsnup disallowed only a “strip down” of a partially

secured mortgage lien and did not address a “strip off” of a wholly unsecured lien,

it is not “clearly on point” with the facts in Folendore or with the facts at issue in

this appeal.

      Although the Supreme Court’s reasoning in Dewsnup seems to reject the

plain language analysis that we used in Folendore, “‘[t]here is, of course, an

important difference between the holding in a case and the reasoning that supports

that holding.’” Atl. Sounding Co., Inc., 496 F.3d at 1284 (citing Crawford-El v.

Britton, 118 S. Ct. 1584, 1590 (1998)). “[T]hat the reasoning of an intervening

high court decision is at odds with that of our prior decision is no basis for a panel

                                           5
to depart from our prior decision.” Id. “As we have stated, ‘[o]bedience to a

Supreme Court decision is one thing, extrapolating from its implications a holding

on an issue that was not before that Court in order to upend settled circuit law is

another thing.” Id. In fact, the Supreme Court -- noting the ambiguities in the

bankruptcy code and the “the difficulty of interpreting the statute in a single

opinion that would apply to all possible fact situations” -- limited its Dewsnup

decision expressly to the precise issue raised by the facts of the case. 112 S. Ct. at

778.

       Because -- under Folendore -- GMAC’s lien is voidable under section

506(d), we reverse and remand for additional proceedings consistent with this

decision.

       REVERSED AND REMANDED.

                                          6


147 F.3d 1061
98 Cal. Daily Op. Serv. 4841, 98 Daily JournalD.A.R. 6840UNITED STATES of America, Plaintiff-Appellee,v.Dragisa LAZAREVICH, Defendant-Appellant.
No. 97-50282.
United States Court of Appeals,Ninth Circuit.
Submitted Feb. 4, 1998.*Decided June 23, 1998.

Michael Tanaka, Deputy Federal Public Defender, Los Angeles, California, for the defendant-appellant.
David R. Fields, Assistant United States Attorney, Los Angeles, California, for the plaintiff-appellee.
Appeal from the United States District Court for the Central District of California;  Audrey B. Collins, District Judge, Presiding.  D.C. No. CR-96-00576-ABC.
Before:  WALLACE, TROTT, and HAWKINS, Circuit Judges.
TROTT, Circuit Judge:

1
Dragisa Lazarevich was extradited from the Netherlands in 1996 to face federal charges in a criminal complaint involving passport fraud.  He appeals the sentence imposed after his criminal conviction, arguing that it constitutes punishment for a non-extradited offense in violation of the extradition treaty between the United States and the Netherlands.  He also appeals the district court's denial of his motion to dismiss the indictment due to outrageous government conduct.  We affirm on both grounds.

I. Facts
A.

2
Lazarevich abducted his children in 1989 after a California court awarded his wife primary custody.  He took the children from their home in California to Serbia and refused to release them to their mother for six years.  In 1995, he finally released them to American officials, and they were returned to their mother.

3
Lazarevich was extradited to the United States from the Netherlands in 1996.  Dutch officials had apprehended him while he was travelling in the Netherlands.  Dutch officials granted extradition on charges that Lazarevich had made false statements on the passport applications of his two children. They refused extradition for charges of child abduction on the ground that Lazarevich had already been tried and convicted on similar charges by the Court of Belgrade in 1992.

4
Upon his return to the United States, Lazarevich was indicted for making false statements on passport applications in violation of 18 U.S.C. § 1542.  He was convicted of making false statements on the passport application of one of his children.

5
The district court sentenced Lazarevich to 24 months imprisonment and three years of supervised release.  The district judge arrived at that sentence by departing upward from Lazarevich's base offense level, which was six, to an offense level of fourteen.  The judge found that various aggravating circumstances justified the increase.

6
Pursuant to United States Sentencing Guideline (U.S.S.G.) § 5K2.9, the court departed upwards after finding, by a preponderance of the evidence, that the offense was committed to facilitate another offense:  the abduction of Lazarevich's children.  Pursuant to U.S.S.G. § 4A1.3(a), the district judge increased Lazarevich's criminal history category from I to II.  She based that increase on Lazarevich's 1992 conviction for child abduction in the Court of Belgrade.

7
In total, the upward departure and increase in criminal history category produced a sentencing range of 18-24 months.  The judge sentenced Lazarevich to the maximum of that range.

8
Lazarevich appeals his sentence.  He argues that the sentence punishes him for abducting his children and therefore violates the extradition treaty between the United States and the Netherlands.  The treaty prohibits punishment for non-extradited offenses.

B.

9
Lazarevich also appeals the district court's denial of his motion to dismiss the indictment for outrageous government conduct.  He claims the court could not legitimately deny his motion without conducting an evidentiary hearing.  He also claims the district court erred when it determined that he had failed to demonstrate a factual basis for his motion.

II. Discussion
A.

10
We review application of the Sentencing Guidelines to the facts of a case for abuse of discretion, and we review legal interpretation of the Guidelines de novo.  United States v. Aguilar-Ayala, 120 F.3d 176, 177-78 (9th Cir.1997).  Interpretations of extradition treaties also receive de novo review.  United States v. Merit, 962 F.2d 917, 919 (9th Cir.1992).

11
The Extradition Treaty between the United States and the Netherlands incorporates the doctrine of specialty.  It provides that a person "extradited under this Treaty shall not be detained, tried, or punished in the territory of the Requesting State for an offense other than that for which extradition has been granted."   Netherlands-Extradition, Art.  XV, June 24, 1980, U.S.-Neth., 35 U.S.T. 1334, 1342 (the Treaty).  The doctrine of specialty embodies the principle of international comity:  "to protect its own citizens in prosecutions abroad, the United States guarantees that it will honor limitations placed on prosecutions in the United States."  United States v. Andonian, 29 F.3d 1432, 1435 (9th Cir.1994) (citation omitted).  Protection of the doctrine of specialty "exists only to the extent that the surrendering country wishes."  SEC v. Eurobond Exchange, Ltd., 13 F.3d 1334, 1337 (9th Cir.1994) (quoting United States v. Najohn, 785 F.2d 1420, 1422 (9th Cir.1986)).

12
Lazarevich was neither detained nor tried on child abduction charges.  The question here is whether he was punished for child abduction.  Based on his abduction of the children, Lazarevich's base offense level and criminal history category were increased.  These increases led in turn to a longer sentence.  Thus, Lazarevich argues, he was punished for his abduction of the children in violation of the Treaty.

13
We reject Lazarevich's argument for the following reasons.  The Supreme Court has held that the "use of evidence of related criminal conduct to enhance a defendant's sentence for a separate crime within the authorized statutory limits does not constitute punishment."  Witte v. United States, 515 U.S. 389, 399, 115 S.Ct. 2199, 132 L.Ed.2d 351 (1995);  see United States v. Watts, 519 U.S. 148, 117 S.Ct. 633, 634, 638, 136 L.Ed.2d 554 (1997) (overturning two Ninth Circuit cases that held "sentencing courts could not consider conduct of the defendants underlying charges of which they had been acquitted").  While both Supreme Court cases dealt with double jeopardy concerns, their holdings are relevant to this case as well.

14
Lazarevich asserts that the fact that this case involves extradition removes it from the reach of the Supreme Court's holdings in Witte and Watts.   The upward departure, he argues, "violated the spirit and mutual understanding" of the extradition agreement and treaty.  The agreement and the Treaty were made, however, within an historical and precedential context.  That context includes the long-standing practice of United States courts of considering relevant, uncharged evidence at sentencing.

15
In Witte, the Supreme Court examined the history of courts' use of related, criminal conduct in sentencing--a history dating back to before the founding of the country.  Witte, 515 U.S. at 397-98, 115 S.Ct. 2199.   The Supreme Court relied on that history when it held that the Due Process Clause did not "require that courts ... abandon their age-old practice of seeking information from out-of-court sources to guide their judgment toward a more enlightened and just sentence."  Id. at 398, 115 S.Ct. 2199 (quoting Williams v. New York, 337 U.S. 241, 250-51, 69 S.Ct. 1079, 93 L.Ed. 1337 (1949)).  The Supreme Court also cited that history when it explained that the Sentencing Guidelines did not change its holdings regarding the consideration of relevant, criminal behavior.  Id. at 398-99, 402, 115 S.Ct. 2199.   The Court explained that the Sentencing Guidelines "are designed to channel the sentencing discretion of the district courts" but that "[r]egardless of whether particular conduct is taken into account by rule or as an act of discretion, the defendant is still being punished only for the offense of conviction."  Id. at 402, 115 S.Ct. 2199.

16
Lazarevich argues that no "technical gloss from the [Sentencing Guideline's] principle of relevant conduct" should overcome the plain meaning of "punishment."   Lazarevich cites two cases.  The first, Sumitomo Shoji, America, Inc. v. Avagliano, 457 U.S. 176, 180, 102 S.Ct. 2374, 72 L.Ed.2d 765 (1982) (quoting Maximov v. United States, 373 U.S. 49, 54, 83 S.Ct. 1054, 10 L.Ed.2d 184 (1963)), states that plain language of a treaty must be followed unless a plain language interpretation "effects a result inconsistent with the intent or expectations of" the signatory nations.  If the plain meaning of punishment is interpreted to preclude consideration of other criminal behavior in sentencing, that interpretation would seem to "effect a result inconsistent with the intent" of at least the United States, given its long history of considering such conduct.  The second case cited by Lazarevich held that federal, not local or state law, should be used to guide treaty interpretation.  See De Geofroy v. Riggs, 133 U.S. 258, 271, 10 S.Ct. 295, 33 L.Ed. 642 (1890).  It does not support Lazarevich's contentions.

17
Given the long history of consideration of relevant evidence--including other criminal behavior, the Sentencing Guidelines' clear mandate of such consideration, and Supreme Court precedent, we conclude that the Treaty and the extradition agreement contemplated consideration of relevant offenses.  In pre-Witte cases, two of our sister circuits drew similar conclusions.  See Leighnor v. Turner, 884 F.2d 385, 390 (8th Cir.1989) (holding that an increase in parole release guideline range due to non-extradited offense did not violate the doctrine of specialty);  United States v. Davis, 954 F.2d 182, 187 n. 2 (4th Cir.1992) (stating in dicta that "the fact that the trial court potentially considered the defendant's prior illegal accounting practices in imposing a sentence does not mean that [the defendant] was punished for those offenses.")   Furthermore, protection of the doctrine of specialty "exists only to the extent that the surrendering country wishes."  Eurobond Exchange, Ltd., 13 F.3d at 1337 (quoting Najohn, 785 F.2d at 1422).   We can find no evidence in the record that the Netherlands wished the doctrine to protect Lazarevich from the upward departure.  Thus, we conclude the district court was within its discretion when it increased Lazarevich's base offense level, and we affirm.

B.

18
We review de novo the district judge's decision to deny Mr. Lazarevich's motion to dismiss the indictment based on outrageous government conduct.  See United States v. Edmonds, 103 F.3d 822, 825 (9th Cir.1996).  We review for clear error the district judge's findings of fact with regard to the motion to dismiss the indictment.  United States v. Armenta, 69 F.3d 304, 306 (9th Cir.1995).

19
While, as Lazarevich argues, an evidentiary hearing might have helped resolve conflicting statements of the United States and Serbian officials, such a hearing would have required another continuance and further delay.  Numerous continuances had previously been granted.  Lazarevich had over seven months to prepare for the hearing on the motion.  The district judge was well within her discretion to deny the continuance requested--and, in turn, the evidentiary hearing.  See Villafuerte v. Stewart, 111 F.3d 616, 633 (9th Cir.1997).

20
The district court properly denied Lazarevich's motion to dismiss the indictment for outrageous government conduct.  Lazarevich does not contest the fact that he bore the burden of demonstrating a factual basis for his motion to dismiss.  Finding the evidence in equipoise, the district judge was required to rule against Lazarevich.  Her finding was not clearly erroneous and her holding was not improper.

21
AFFIRMED.

*
 The panel unanimously finds this case suitable for decision without oral argument.  Fed. R.App. P. 34(a);  9th Cir.  R. 34-4