Opinion
No. 06-17-00076-CV
12-01-2017
IN the INTEREST OF M.M.W. and N.N.G., Children
Zachary Ressler, Ellis & Ressler, LLP, 101 W. Houston St., Paris, TX 78560, for appellant. Michael D. Becker, Office of General Counsel, TDFPS MC: Y-956, 2401 Ridgepoint Dr, Bldg H-2, Austin, TX 78754, for appellee.
Zachary Ressler, Ellis & Ressler, LLP, 101 W. Houston St., Paris, TX 78560, for appellant.
Michael D. Becker, Office of General Counsel, TDFPS MC: Y-956, 2401 Ridgepoint Dr, Bldg H-2, Austin, TX 78754, for appellee.
Before Morriss, C.J., Moseley and Burgess, JJ.
OPINION
Opinion by Justice Burgess
The Department of Family and Protective Services (the Department) filed a petition to terminate Mother's parental rights to her children, Mandy and Nelly, on the grounds that she had: (1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered their physical or emotional well-being; (2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered their physical or emotional well-being; (3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children who had been in the permanent or temporary managing conservatorship of the Department for not less than nine months as a result of their removal for abuse or neglect; and (4) used a controlled substance in a manner that endangered the health or safety of the children and either (i) failed to complete a court-ordered substance-abuse treatment program or (ii) continued to abuse a controlled substance after completion of a court-ordered substance-abuse treatment program. See TEX. FAM. CODE ANN. § 161.001(b)(1)(D), (E), (O), (P) (West Supp. 2017).
In an effort to protect the identity of the minor children who are the subject of this appeal, we do not refer to the parties by their real names. See Tex. R. App. P. 9.8.
After trial before a Lamar County jury, Mother's parental rights to Mandy and Nelly were terminated. Mother does not challenge the legal and factual sufficiency of the evidence. Instead, in her sole issue on appeal, Mother argues that the trial court should have excluded testimony from both the Department's caseworker and the Court Appointed Special Advocate that termination of Mother's parental rights was in the best interests of the children. Specifically, Mother points out that the Department failed to qualify the witnesses as expert witnesses. Accordingly, she argues that the trial court should have excluded the lay witness testimony because it was opinion testimony that was not helpful to the jury in determining a fact in issue.
See In re A.L. , 486 S.W.3d 129, 130 (Tex. App.—Texarkana 2016, no pet.) (discussing preservation of legal and factual sufficiency points following a jury trial on the Department's petition).
The State argues that Mother's sole issue on appeal was not preserved. We agree. In order to preserve error on this point,
the record must show that:
(1) the complaint was made to the trial court by a timely request, objection, or motion that:
(A) stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint, unless the specific grounds were apparent from the context.
TEX. R. APP. P. 33.1(a)(1)(A).
Here, when the Department asked each witness whether they believed that Mother's parental rights should be terminated, Mother objected on the ground that the question "[c]all[ed] for a conclusion." No further explanation was provided. After this objection was overruled, both witnesses answered in the affirmative.
"An opinion is not objectionable just because it embraces an ultimate issue." Tex. R. Evid. 704.
After the Department's caseworker had already testified that Mother's parental rights should be terminated, the caseworker explained the reasons for her opinion without drawing an objection from Mother. Specifically, the caseworker testified:
A. I think that mom has had many opportunities to care for these children, to do what's right, and she did not. She did not protect [M.M.W.] from sexual abuse. The sexual abuse that—the sexual abuse that [M.M.W.] endured was horrific, horrific, and her mother knew about it and she did absolutely nothing. That man could have been in prison if mom had notified the police and that abuse could have stopped and it didn't.
The caseworker also testified that Mother was found in possession of methamphetamine, marihuana, and other controlled substances during the pendency of the case. Then, the following transpired:
Q. [ (BY THE DEPARTMENT) ].... Do you believe it would be harmful not to terminate these—the—the mother's rights to these two children?
[BY MOTHER'S COUNSEL]: Objection, Your Honor. [The Caseworker] is not an expert. She's not a psychologist. She has no grounds to answer that question.
[BY THE DEPARTMENT]: Judge, I think she's charged with doing—you know, with—with providing the best interest for these children. She's—she's trained and experienced in that. I think she can answer that question as a lay witness.
THE COURT: Ask your question again.
Q. (By [THE DEPARTMENT] ) So, ma'am, do you think that it would be—would harm these children if they did not achieve permanency, did not achieve adoption?
A. I think it would be detrimental to these—
THE COURT: I'll.... overrule your objection.
A. (By the Witness) I think it would be detrimental to these children to not make their parents—(pointed to the foster parents)—their legal parents.
After the State explained that it was not offering expert witness testimony, Mother failed to object. While Mother's argument on appeal invokes Rule 701, Mother's objection above was based on Rule 702 and did not argue that the testimony constituted inadmissible lay witness testimony. See Tex. R. Evid. 701, 702.
We find that Mother's objection that the Department's question called for a conclusion was not specific enough to inform the trial court that she was objecting under Rule 701 of the Texas Rules of Evidence. "An objection at trial that does not comport with a point of error on appeal preserves nothing for review." Anderson v. Snoddy , No. 06-14-00096-CV, 2015 WL 5634564, at *11 (Tex. App.—Texarkana Sept. 25, 2015, pet. denied) (mem. op.). We overrule Mother's sole issue on appeal because it is unpreserved.
We affirm the trial court's judgment.