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In re J.W.G.

Court of Appeals of Texas, Fourteenth District

November 9, 2017

IN THE INTEREST OF J.W.G., CHILD

         On Appeal from the 313th District Court Harris County, Texas Trial Court Cause No. 2016-02093J

          Panel consists of Justices Jamison, Busby, and Donovan.

          MEMORANDUM OPINION

          Martha Hill Jamison, Justice.

         This is an appeal from a judgment terminating the parental rights of T.G. (Mother) and appointing the Department of Family and Protective Services (the Department) sole managing conservator of the child, J.W.G. (Jerry) following a jury trial. Mother and her father (Grandfather) raise several issues challenging the Final Decree of Termination.[1] We affirm in part and reverse and remand in part.

         BACKGROUND

         In February 2015, the Department received a referral alleging neglectful supervision of one-month-old Jerry by Mother. It was reported Mother may be using methamphetamine and hanging out with known drug dealers. The Department was unable to make contact with Mother until May 2015. At that time, Mother agreed to participate in Family Based Safety Services (FBSS) and Jerry was placed with Grandfather pursuant to a parental child safety placement. The placement prohibited unsupervised contact between Mother or Father and Jerry. During the FBSS case, the Department received a referral of neglectful supervision. The referral alleged Grandfather was permitting Mother and Father to have unsupervised access to Jerry and that Mother and Father were using methamphetamine. In December 2015, another referral of neglectful supervision by Mother and Grandfather was received. Mother and Grandfather were reported to have engaged in an argument with Father in the presence of Jerry. Father threatened Grandfather during the argument. Father was arrested and incarcerated as a result of the incident.

         On April 7, 2016, the Department filed a petition for termination of Mother's parental rights to Jerry. The Department also sought sole managing conservatorship. The Department was granted temporary custody of Jerry and he was placed with Father's mother (Grandmother). Grandfather intervened in the termination suit seeking "access, increased access, possession, and managing/possessory conservatorship (sole & joint)."

         The case proceeded to a jury trial. The jury returned a verdict terminating Mother's parental rights and appointing the Department as the sole managing conservator of Jerry. This appeal followed.

         ANALYSIS

         Appellants raise five issues challenging the trial court's judgment: (1) the trial court erred in denying Mother's requested jury instructions requiring ten jurors to agree on the same ground for termination; (2) the trial court erred in denying Grandfather's requested jury question on joint managing conservatorship; (3) the trial court erred in denying Grandfather's requested jury question on possessory conservatorship; (4) the trial court erred in admitting evidence which was not produced in discovery, included hearsay, and was not authenticated; and (5) the trial judge violated Texas Rule of Evidence 605 by testifying as a witness.

         A. Broad-Form Submission

         Mother contends that it cannot be determined if ten jurors agreed on any one predicate ground for termination based on the charge submitted to the jury such that the charge is erroneous and violates Mother's due process rights. The Department responds that the trial court did not abuse its discretion in submitting the broad-form jury charge. We review alleged error in submitting the charge to the jury for abuse of discretion. See Texas Dept. of Human Services v. E.B., 802 S.W.2d 647, 649 (Tex. 1990). A trial court abuses its discretion when it acts without reference to any guiding principle. Id.

         The jury charge in the present case presented four predicate grounds for termination in the disjunctive and with a broad-form question regarding whether the parent-child relationship should be terminated. The jury charge included relevant "specific instructions" for the termination question as follows:

For the parent-child relationship to be terminated in this case at least one, but not all, of the following grounds for termination must be proven by clear and convincing evidence for each child. While the jury need only find one of the following grounds for termination, at least ten jurors must agree that a parent committed at least one of the grounds for termination regarding each child, and at least ten of the same jurors must agree that termination of that parent's rights is in each child's best interest.
(A) 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; OR
(B) 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; OR
(C) The parent failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child who has been in temporary managing conservatorship of [the Department] for not less than nine months as a result of the child's removal from the parent under Chapter 262 (Procedures in Suit by Governmental Entity) for the abuse or neglect of the child; OR
(D) The parent used a controlled substance, as defined by Chapter 481, Health and Safety Code, in a manner that endangered the health or safety of the child, and (1) failed to complete a court-ordered substance abuse treatment program; or (2) after completion of a court-ordered substance abuse treatment program continued to abuse a controlled substance,
AND
By clear and convincing evidence that:
Termination of the parental rights is in the best interest of the child.

         The jury question stated "[i]n answering [the termination question], you are bound by the previous instructions[2] and definitions given." The jury answered "yes" to the question: "[s]hould the parent-child relationship between [Mother] and [Jerry] be terminated?"

         The charge in a parental termination suit should be the same as in other civil cases. E.B., 802 S.W.2d at 649. In all jury cases, the trial court shall, whenever feasible, submit the cause upon broad form questions. See Tex. R. Civ. P. 277. Mother contends that the predicate grounds submitted in the charge in the disjunctive does not allow a determination if ten jurors agreed to the same predicate ground.

         Mother seeks to distinguish the leading case on this issue, Texas Dept. of Human Services v. E.B., from the present case as E.B. involved termination under only subsections (D) and (E), which both involve endangerment. Id., 802 S.W.2d at 648. Accordingly, Mother contends it was possible for the ten jurors in E.B. to agree that termination was appropriate on grounds of endangerment. However, although subsections (D) and (E) both focus on endangerment, they differ with regard to the source and proof of endangerment. See In re A.S., 261 S.W.3d 76, 83 (Tex. App.- Houston [14th Dist.] 2008, pet. denied). Accordingly, the charge in E.B. involved alternative grounds for termination submitted disjunctively, much like the charge in the present case. See In re M.C.M., 57 S.W.3d 27, 31 (Tex. App.-Houston [1st Dist.] 2001, pet. denied).

         According to the Texas Supreme Court, the controlling question in a parental termination case is whether the parent-child relationship should be terminated, not which specific predicate ground the jury relied on to affirmatively answer the question posed. See E.B., 802 S.W.2d at 649. Further, the court rejected the argument that the charge, as presented to the jury, violated mother's due process rights. See id. Because the jury charge approved in E.B. is similar to that given in this case and E.B. has not been overruled, we conclude, as have several sister courts, [3] that E.B. is binding authority. Accordingly, we conclude the trial court did not abuse its discretion in presenting the jury a broad-form charge and the charge as presented did not violate Mother's due process rights. See In re M.C.M., 57 S.W.3d at 31 (controlling issues properly submitted through broad-form submission); Click v. Tex. Dep't of Family and Protective Servs., No. 03-10-00123-CV, 2010 WL 3927606, at *3 (Tex. App.-Austin Oct. 8, 2010, no pet.) (mem. op.) ("due process allows jurors to agree that at least one of the alleged grounds for termination has been proven without reaching an agreement as to any particular ground").

         Alternatively, Mother contends the charge in the present case included an invalid predicate ground because there was insufficient evidence to terminate under subsection (O), an alternative ground presented in the termination question. Mother contends the presentation of an invalid predicate ground in the charge makes it impossible to determine if Mother's parental rights were terminated on a valid ground, relying on Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378 (Tex. 2000). Mother did not challenge the sufficiency of the evidence to support the predicate ground of subsection (O) in the trial court, nor does she on appeal. Mother also did not object to the submission of subsection (O). Indeed, Mother's proposed charge included the predicate ground of subsection (O). A complaint to the jury charge is waived unless the trial court is made aware of the complaint through an objection, timely and plainly, and a ruling is obtained. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003); Tex.R.App.P. 33.1. We conclude Mother's challenge to the jury instruction based on the inclusion of an invalid predicate ground was waived. See In re K.S., 76 S.W.3d 36, 48 (Tex. App.-Amarillo 2002, no pet.). We overrule appellants' first issue.

         B. Admission of Evidence

         Appellants' fourth issue challenges the admission of a video into evidence. Appellants contend the video should have been excluded because it was not produced in discovery, was not properly authenticated, and contained hearsay. We review a trial court's decision to admit evidence for an abuse of discretion. See In re J.F.C., 96 S.W.3d 256, 285 (Tex. 2002).

         For purposes of this appeal we presume that the trial court abused its discretion in admitting the video. Error in improperly admitting evidence is not reversible unless the error "probably caused the rendition of an improper judgment" or "probably prevented the appellant from properly presenting the case to the court of appeals." Tex.R.App.P. 44.1(a); In re E.A.K., 192 S.W.3d 133, 148 (Tex. App.- Houston [14th Dist.] 2006, pet. denied). "Reversible error does not usually occur in connection with evidentiary rulings unless appellant demonstrates that the whole case turns on the particular evidence excluded or admitted." Dudley v. Humana Hosp. Corp., 817 S.W.2d 124, (Tex. App.-Houston [14th Dist.] 1991, no writ). Error in the admission of evidence is harmless if the objecting party subsequently permits the same or similar evidence to be introduced without objection. See In re E.A.K., 192 S.W.3d at 148.

         Appellants' contentions on appeal regarding the harm caused by admission of the video relate primarily to the conservatorship findings. Appellants contend "[t]he 'dramatic' recording is 'the central issue of the case' and proves 'whether [Grandfather] can be protective and whether [Grandfather] is going to protect the child from [Mother]." The Department contends the video was not harmful because it was cumulative of other evidence.

         In the present case, the evidence presumed to have been erroneously admitted was a video[4] from a police body camera. The video depicted Grandfather outside Mother's apartment with two police officers. The video also depicted Father opening the door to Mother's apartment holding Jerry and Mother inside the apartment. The video contained statements by Grandfather indicating he was aware Jerry was in the apartment with both parents. At trial, the Department and ad litem relied on the video to argue Grandfather could not be protective of Jerry because the video evidenced a violation of Grandfather's agreement with the Department during FBSS to not allow unsupervised visitation by Mother or Father.

         The record contains testimony from witnesses regarding unsupervised visits by Mother and Father with Jerry during the period Jerry was placed with Grandfather. Mother also testified generally regarding the incident depicted in the video. We recognize that the video was more striking than the witness testimony due to dramatic effect. However, appellants did not object to other evidence similar to that depicted in the video regarding Father's presence in the apartment and unsupervised visitation by the parents with Jerry. Accordingly, we conclude admission of the video into evidence was harmless. See Mason v. Tex. Dep't of Family and Protective Servs., No. 03-11-00205-CV, 2012 WL 1810620, at *15 (Tex. App.-Austin May 17, 2012, no pet.) (mem. op.). We overrule appellants' fourth issue.

         C. Trial Judge's Witness Testimony

         In their fifth issue, appellants contend the trial judge abused his discretion in testifying as a witness. Appellants point to three instances where they contend the trial judge improperly testified before the jury. The Department contends the statements were judicial in nature and did not constitute witness testimony.

         Rule 605 of the Texas Rules of Evidence states "[t]he presiding judge may not testify as a witness at trial. A party need not object to preserve the issue." Tex. R. Evid. 605. We evaluate "whether the judge's statement of fact is essential to the exercise of some judicial function or is the functional equivalent of witness testimony." In re C.C.K., No. 02-12-00347-CV, 2013 WL 452163, at *33 (Tex. App.-Fort Worth Feb. 7, 2013, no pet.) (mem. op.).

         The first instance in which appellants contend the trial judge testified ...


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