Opinion
No. 10-06-00165-CV.
Opinion delivered and filed December 20, 2006.
Appeal from the 13th District Court, Navarro County, Texas, Trial Court No. 05-00-14394-CV.
Before CHIEF JUSTICE GRAY, JUSTICE VANCE, and JUSTICE REYNA.
MEMORANDUM OPINION
The Texas Department of Family and Protective Services removed W.A.R. from his mother, Appellant Penelope Rogers, the day after he was born. The decision to remove the child was based on the removal of her other children from her care, the condition of her home, her mental instability, and inability to care for the child. The Department created a service plan for Rogers to perform in order to be reunited with her son. Based on her failure to make sufficient progress on this plan, the Department recommended termination of her parental rights. At trial, the jury reached a unanimous verdict in favor of termination. The trial court entered a Judgment of Termination in accordance with the verdict. Rogers appeals this judgment and brings six issues for review.
Motion for Directed Verdict
In her second issue, Rogers contends that the trial court erred in overruling her motion for directed verdict on the endangerment ground. Rogers alleges that, as the child was removed from her custody at the hospital one day after his birth, there is no evidence of endangerment to the child.
In reviewing the grant or denial of a directed verdict, an appellate court follows the standards for assessing the legal sufficiency of the evidence. City of Keller v. Wilson, 168 S.W.3d 802, 809-28 (Tex. 2005). We must determine whether there is any evidence of probative force to raise a fact issue on the question presented. Bostrom Seating, Inc. v. Crane Carrier Co., 140 S.W.3d 681, 684 (Tex. 2004). We will credit the favorable evidence if reasonable jurors could and disregard the contrary evidence unless reasonable jurors could not. City of Keller, 168 S.W.3d at 827.
A directed verdict is warranted when the evidence is such that no other verdict can be rendered and the moving party is entitled, as a matter of law, to a judgment. Byrd v. Delasancha, 195 S.W.3d 834, 836 (Tex.App.-Dallas 2006, no pet.). However, it is error for a trial court to direct a verdict when a material issue is raised by the evidence. Id. If there is any conflicting evidence of probative value, a directed verdict is improper and the case must be remanded for the jury to determine that issue. Id. If reasonable minds could differ as to the controlling facts, a trial court errs if it grants a directed verdict and refuses to submit the issues to the jury. Id. (citing Latham v. Castillo, 972 S.W.2d 66, 68 (Tex. 1998)).
The court may order termination of the parent-child relationship if the court finds by clear and convincing evidence that the parent knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child. TEX. FAM. CODE ANN. § 161.001(1)(D) (Vernon Supp. 2006).
"Endangerment may include what a parent does before and after birth of a child." In re U.P., 105 S.W.3d 222, 234 (Tex.App.-Houston [14th Dist.] 2003, pet. denied) (citing In re M.D.S., 1 S.W.3d 190, 198-99 (Tex.App.-Amarillo 1999, no pet.)). To determine whether termination is necessary, courts look to parental conduct both before and after the child's birth. In re K.A.S., 131 S.W.3d 215, 222 (Tex.App.-Fort Worth 2004, pet. denied); In re U.P., 105 S.W.3d at 234; In re D.M., 58 S.W.3d 801, 812 (Tex.App.-Fort Worth 2001, no pet.); In re D.L.N., 958 S.W.2d 934, 941 (Tex.App.-Waco 1991, writ denied). Further, a parent's conduct toward one child will suffice to support termination of another child, and that conduct need not have occurred in the child's presence. Lucas v. Tex. Dep't Protective Regulatory Servs., 949 S.W.2d 500, 503 (Tex.App.-Waco 1997, writ denied); D.L.N., 958 S.W.2d at 940-41.
John Goodnight, W.A.R.'s original caseworker, testified that Rogers's two other children were removed from her care due to the condition of her home and her inability to care for the children. He stated that these cases were factors in the decision to remove W.A.R. shortly after his birth.
At the time of W.A.R.'s birth, Rogers lived with Dalton Huddleston, an 89-year-old man who paid Rogers to care for him and his home. Huddleston's home was dirty and cluttered. Rogers stacked her belongings throughout the house creating an unsafe environment for children. Pictures of the home show that the kitchen was littered with dirty dishes, trash, and spoiled food. Jackie Greer, a caseworker, testified that dead insects and mice were found in the home and that it would be difficult for a child to move about the house due to the clutter. Caseworkers discussed the condition of the home with Rogers; however, she did not recognize that the home was an unsafe environment for children.
In accordance with the family service plan, Rogers was required to work with Volunteers of America to improve the condition of the home. Rogers did not successfully fulfill this requirement. She testified that she terminated the services of her volunteer, Gemma Henry, because she was "wasting [her] time." Rogers failed to clean the home until several days before trial although during the eight previous years she had three children, including W.A.R., removed from her care due to its condition.
Rogers also failed to recognize potential dangerous conditions during supervised visits with W.A.R. Greer, who observed these visits, testified that Rogers left the child unattended while on the changing table and, upon becoming frustrated that he was crying, "grabbed him by the leg and flung him over her shoulder." She also testified that she had to remove rags from W.A.R.'s diaper bag before the visits because Rogers often stuffed them in his mouth. When caseworkers entered the visitation room or attempted to redirect Rogers, she responded violently by shoving or "almost throwing" the baby at them. Because of her conduct and the Department's concern for W.A.R.'s safety, it reduced the length of the visitations from two hours to thirty minutes.
Although W.A.R. was removed from Rogers's care before ever living with her, we find that the evidence of the condition of the home in which Rogers intended to live with W.A.R. and her conduct during the supervised visits was evidence of probative value of endangerment. Accordingly, the trial court did not err in denying Rogers's motion for directed verdict. We overrule her second issue.
Factual Sufficiency
In her first issue, Rogers challenges the factual sufficiency of the evidence to support the second and third grounds for termination as alleged by the Department.
Termination of parental rights requires an application of a two prong test. In re K.N.R., 137 S.W.3d 675, 676 (Tex.App.-Waco 2004, no pet.). First, the petitioner must prove one or more acts or omissions enumerated under the first subsection of the statute; and second, the petitioner must prove that termination of the parent-child relationship is in the best interest of the child. Id.; see also TEX. FAM. CODE ANN. § 161.001(1) (2) (Vernon Supp. 2006). Each prong must be proved by the petitioner by clear and convincing evidence. In re K.N.R., 137 S.W.3d at 676.
In the present case, upon a broad-form submission alleging three predicate acts to satisfy the first prong, the jury found that the parent-child relationship between Rogers and W.A.R. should be terminated. Rogers challenges the sufficiency of the evidence to establish the second and third alleged grounds for termination. See TEX. FAM. CODE ANN. § 161.001(1)(O) (Vernon Supp. 2006), § 161.003(a) (Vernon 2002). She does not contest the sufficiency of the evidence regarding the first predicate act pled or as to whether termination was in the best interest of W.A.R. See id. § 161.001(1)(D) and (2) (Vernon Supp. 2006).
The Department alleges the following predicate acts under Section 161.001 of the Family Code: (1) knowingly placed or knowingly allowed the child to remain in conditions or surroundings which endanger the physical or emotional well-being of the child, and (2) failed to comply with the provisions of a court order that specifically established the actions necessary for the mother to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Family and Protective Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child. See TEX. FAM. CODE ANN. § 161.001(1)(D) and (O).
The Department also alleged that Rogers has a mental or emotional illness or a mental deficiency that renders the mother unable to provide for the physical, emotional, and mental needs of the child and will continue to render the mother unable to provide for the child's needs until the 18th birthday of the child, despite at least six months of reasonable efforts to return the child to the parent. See TEX. FAM. CODE ANN. § 161.003.
Because Rogers does not also contest the sufficiency of the evidence of the first predicate act and the best interest of W.A.R., the judgment is supported by that ground on both prongs necessary for termination. In re K.N.R., 137 S.W.3d at 676. Rogers's first issue is overruled.
Expert Testimony
In her third issue, Rogers complains that the trial court erred in excluding the expert testimony of Robert York, an attorney who specializes in family law.
The rules of evidence provide: "If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of opinion or otherwise." TEX. R. EVID. 702. The expert's opinion must be relevant to the issues in the case and based upon a reliable foundation. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 720 (Tex. 1998); E.I. du Pont de Nemours Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).
Expert testimony is relevant when it will aid the jury in making inferences regarding fact issues more effectively. See Robinson, 923 S.W.2d at 556. When the jury is equally competent to form an opinion regarding ultimate fact issues, the expert's testimony as to these issues may be excluded. Id.
The trial court serves as an evidentiary gatekeeper by screening out irrelevant and unreliable expert evidence, and it has broad discretion to determine the admissibility of evidence. General Motors Corp. v. Sanchez, 997 S.W.2d 584, 590 (Tex. 1999); Robinson, 923 S.W.2d at 558. Accordingly, we review the trial court's decision to exclude York's testimony for abuse of discretion. See Robinson, 923 S.W.2d at 558.
Rogers sought to introduce the testimony of York to explain to the jury "the positions of the parties, as well as the allegations, the prior orders of the Court, and an explanation about what's being asked for." Outside the presence of the jury, Rogers's attorney questioned York about the Second Amended Petition, ex parte Order for Protection of a Child in an Emergency, Temporary Order Following Adversary Hearing, and Permanency Hearing Order. York testified as to whether the pleadings were "standard pleadings," what rights and obligations the orders granted each party, when the orders took effect and how long they would remain in effect.
Considering the nature of York's proposed testimony, we find that it would not aid the jury in determining the ultimate fact issues. Therefore, we cannot say that the trial court acted without any reference to guiding rules or principles in excluding the expert testimony. We overrule Rogers's third issue.
Charge Error
In her fifth issue, Rogers argues that the trial court erred in excluding the following instruction from the jury charge:
You are instructed that there exists a strong presumption against the involuntary termination of the parent-child relationship. It is described as one of the strongest presumptions known in law and it deals with the best interest and atmosphere of a minor, including his or her mental, moral, and environmental development. The best interest of the child is presumed to be served by keeping custody in a natural parent.
We review a trial court's decision to submit or refuse a particular question or instruction under an abuse-of-discretion standard. Texas Dep't of Human Serv's. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); Byrd v. Estate of Nelms, 154 S.W.3d 149, 160 (Tex.App.-Waco 2004, pet. denied). The trial court has broad discretion in submitting jury questions and instructions. Plainsman Trading Co. v. Crews, 898 S.W.2d 786, 791 (Tex. 1995).
Rogers is correct in stating that a strong presumption exists that the best interest of the child will be served by preserving the parent-child relationship. See In re S.A.P., 169 S.W.3d 685, 707 (Tex.App.-Waco 2005, no pet.). However, this presumption is rebuttable. See In re S.M.L., 171 S.W.3d 472, 480 (Tex.App.-Houston [14th Dist.] 2005, no pet.). A rebuttable presumption "shift[s] the burden of producing evidence to the party against whom it operates." In the Interest of Rodriguez, 940 S.W.2d 265, 271 (Tex.App.-San Antonio 1997, writ denied) (citing General Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993)). Once that burden is discharged and evidence contradicting the presumption has been offered, the presumption ceases, and the case proceeds as if no presumption ever existed. Director of Dallas County Child Protective Servs. Unit of Texas Dept. of Human Servs. v. Bowling, 833 S.W.2d 730, 732 (Tex.App.-Dallas 1992, no writ). Once the Department introduced evidence of endangerment, "the presumption disappeared." General Motors Corp., 873 S.W.2d at 359. Accordingly, the requested instruction on the presumption was not necessary, and the trial court did not abuse its discretion in refusing to include it. We overrule the fifth issue.
Remaining Issues
In Rogers's fourth and sixth issues, she states that the court erred in submitting a broad-form question to the jury on the issue of termination and in allowing the Department to present evidence regarding Rogers's other children. However, she does not brief these issues other than to concede that broad-form questions are acceptable in termination cases and that she did not preserve error on the issue of admitting evidence concerning her relationship with her other children. Accordingly, we need not address these issues.
Conclusion
We affirm the trial court's judgment.
Affirmed