Opinion
No. 05-07-01572-CV
Opinion Filed October 15, 2008.
On Appeal from the 304th District Court, Dallas County, Texas, Trial Court Cause No. 06-01125-W.
Before Chief Justice Thomas and Justices FitzGerald and Lang-Miers.
MEMORANDUM OPINION
Angela B. appeals the trial court's judgment terminating her parental rights to her children, K.P. and E.B. The statutory grounds found to support termination were (a) that she had her parental rights to another child terminated based on a finding that her conduct was in violation of Texas Family Code section 161.001(1)(D) or (E), and (b) that she had been convicted or placed on community supervision for being criminally responsible for the death or serious injury of a child under section 22.041 of the Texas Penal Code (abandoning or endangering a child). See Tex. Fam. Code Ann. § 161.001(1)(D), (E), (L), (M) (Vernon Supp. 2008); Tex. Penal Code Ann. § 22.041 (Vernon Supp. 2008). The Dallas County Child Protective Services Unit of the Texas Department of Family and Protective Services moved for partial summary judgment on the statutory grounds for termination, which the trial court granted, and a jury determined that termination of the parent-child relationship was in the best interest of the children. Appellant brings two points of error contending (1) the trial court erred in granting the Department's motion for partial summary judgment because the evidence was insufficient to connect appellant to the judgments admitted as evidence during the summary judgment hearing, and (2) the trial court erred in admitting before the jury documents pertaining to appellant's conviction for retaliation because the Department failed to turn over the documents during discovery. We affirm the trial court's judgment.
Section 161.001 of the Texas Family Code provides, as relevant in this case,
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence:
(1) that the parent has: . . .
(D) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child;
(E) 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; . . .
(L) been convicted or has been placed on community supervision, including deferred adjudication community supervision, for being criminally responsible for the death or serious injury of a child under the following sections of the Penal Code or adjudicated under Title 3 for conduct that caused the death or serious injury of a child and that would constitute a violation of one of the following Penal Code sections: . . .
(x) Section 22.041 (abandoning or endangering child); . . .
(M) had his or her parent-child relationship terminated with respect to another child based on a finding that the parent's conduct was in violation of Paragraph (D) or (E) or substantially equivalent provisions of the law of another state; and
(2) that termination is in the best interest of the child.
Tex. Fam. Code Ann. § 161.001.
BACKGROUND
In July 2001, appellant's parental rights to her first three children were terminated after at least two of them were sexually assaulted by appellant's husband. The trial court found appellant "knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endanger the physical or emotional well-being of the children; [and] engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangers the physical or emotional well-being of the children." (Citations omitted.) See Tex. Fam. Code Ann. § 161.001(1)(D), (E). In November 2002, pursuant to a plea agreement, appellant was convicted of endangering a child for not protecting the children from her husband, and she was sentenced to 270 days in jail. At that same time, pursuant to a plea agreement, she was also convicted of retaliation for threatening to kill the woman who reported her to the Department and was sentenced to two years' imprisonment, probated initially for two years. The conditions of probation were later amended to extend the term of probation to three years.
Appellant's husband is in prison serving a twenty-five-year sentence for the aggravated sexual assault of appellant's daughter.
Appellant testified she became pregnant with K.P. after being raped by her landlord. The next year, when appellant was cohabiting with E.B.'s father, she became pregnant with E.B. In 2006, shortly after the birth of E.B., the Department received a report that appellant was using drugs. Appellant agreed to a hair follicle test, which tested positive for cocaine. The Department removed the children from appellant's custody and placed them in foster care. The Department formulated a plan for the eventual reunion of appellant and the children and required appellant to participate timely in certain services offered by the Department, including parenting classes, psychological evaluation, counseling, drug testing, drug treatment, and visitation. When the Department perceived that appellant had not completed the parenting classes and drug treatment within a reasonable period, the Department moved to terminate appellant's rights.
The Department moved for summary judgment on the statutory grounds for termination, paragraphs (L) and (M) of section 161.001(1) of the family code, and attached to the motion copies of appellant's conviction for endangering a child and the judgment terminating appellant's parental rights to her first three children. The court granted the Department's motion for partial summary judgment.
The court held a jury trial to determine whether termination of the parent-child relationship was in the children's best interest. The jury found termination was in the children's best interest, and the trial court ordered appellant's parental rights to K.P. and E.B. terminated.
GROUNDS FOR TERMINATION
In her first point of error, appellant contends the trial court erred in granting the Department's motion for partial summary judgment because the evidence was insufficient to connect appellant to the judgment for endangering a child admitted as evidence during the summary judgment hearing. In termination cases in which the Department is a party, the trial court's final order is subject to the appeal requirements of section 263.405(b) requiring the appellant, within fifteen days of the final order, to file with the trial court "a statement of the point or points on which the party intends to appeal." Tex. Fam. Code Ann. § 263.405(b) (Vernon Supp. 2008); In re M.D., 05-06-00779-CV, 2007 WL 1310966, *1 (Tex.App.-Dallas May 7, 2007, no pet.); In re R.J.S., 219 S.W.3d 623, 626-27 (Tex.App.-Dallas 2007, pet. denied). "The appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal. . . ." Tex. Fam. Code Ann. § 263.405(i).
In this case, appellant timely filed her statement of points relied on for appeal, but the statement of points did not assert the evidence in support of the motion for partial summary judgment was insufficient for failing to prove appellant was the person named in the judgment of conviction for endangering a child. Accordingly, we may not consider this issue. Id.; see In re C.R., No. 05-07-00503-CV, 2008 WL 1960816, at *10 (Tex.App.-Dallas May 7, 2008, no pet.); In re J.J., No. 05-06-01472-CV, 2008 WL 223841, at *7 (Tex.App.-Dallas Jan. 29, 2008, no pet) (mem. op.). We overrule appellant's first point of error.
BEST INTEREST OF THE CHILDREN
In her second point of error, appellant contends that during the jury trial on the best interest of the children, the trial court erred in admitting State's exhibits 3, 4, 5, and 6, which were the indictment, judgment of conviction, terms of community supervision, and amended terms of community supervision concerning appellant's conviction for retaliation. It appears appellant's retaliation conviction was for threatening the person who had reported her to the Department for endangering her children. Appellant pleaded either guilty (as the judgments state) or nolo contendere (as she testified occurred) on the same day to both the retaliation and endangering a child offenses, and the judgments for both offenses state the sentences shall run concurrently with one another. Appellant objected at trial and argues on appeal that the documents were inadmissible because the Department did not produce the documents during discovery. See Tex. R. Civ. P. 193.6(a). The trial court admitted the documents, but only for the limited purpose of impeachment.
The trial court's evidentiary rulings will not be overturned absent an abuse of discretion. Bay Area Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231, 234 (Tex. 2007) (per curiam); In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005). To be entitled to reversal due to the erroneous admission of evidence, an appellant must not only show the trial court erred in admitting the evidence, but also that the error was reasonably calculated to cause and probably did cause the rendition of an improper verdict. Tex. R. App. P. 44.1; McShane, 239 S.W.3d at 234. "We review the entire record and require the complaining party to demonstrate that the judgment turns on the particular evidence admitted." McShane, 239 S.W.3d at 234.
In this case, review of the entire record does not demonstrate that the judgment turns on the documents concerning appellant's retaliation conviction. The trial court admitted the documents for the limited purpose of impeachment, and the record contains substantial other evidence impeaching appellant. Besides the retaliation conviction, the evidence before the jury also included documents related to her conviction for endangering a child. Appellant testified she pleaded no contest in both cases, but the documents in both cases showed appellant pleaded guilty. E.B.'s father, Bruce Bennett, testified appellant "would constantly lie." Bennett also testified that in 2005, appellant attempted to engage in a fraudulent marriage by agreeing to marry a Chinese national for money to help him with his visa issues, but the plan collapsed because she was still married to her first husband. Appellant's credibility was also impeached by her testimony that she first learned she was still married two weeks before trial, which would have been August 2007. However, Bennett testified appellant knew in 2005 that she was still married, and appellant's fiancé testified appellant told him in April 2007 that she was still married.
Bennett testified appellant and the Chinese man were "married" by a judge in Sherman. In fact, appellant was still married to her first husband, who was serving a twenty-five-year sentence. When the Chinese man learned of the impediment of appellant's existing marriage, appellant "cut the deal off." The evidence is disputed whether she was aware of that impediment when she agreed to marry the man.
We conclude the impeachment value of the exhibits concerning appellant's retaliation conviction was merely cumulative of other evidence impeaching appellant's credibility. Accordingly, error, if any, in the admission of the evidence was harmless. See In re J.F.C., 96 S.W.3d 256, 285 (Tex. 2002); In re C.R., 2008 WL 1960816, at *2. We overrule appellant's second point of error.
We affirm the trial court's judgment.