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S. B. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

December 22, 2017

S. B., Appellant
Texas Department of Family and Protective Services, Appellee


          Before Justices Puryear, Field, and Bourland


          David Puryear, Justice

         A unanimous jury found that the parental rights of appellant S. B. ("Susan") should be terminated. The trial court entered an order terminating her parental rights to her son "Charles, " who was almost three at the time of trial, [1] and Susan appealed. We reverse the trial court's order and remand for further proceedings.

         Peremptory Challenges

         In her first issue, Susan complains that the trial court committed reversible error when it gave a total of eight peremptory strikes to the parties aligned against her-the Texas Department of Family and Protective Services, Charles's attorney ad litem, and intervenor "Mary." Because we agree, we need not address Susan's second error complaining about closing arguments.

          Standard of Review

         In a civil case tried in a district court, each party is entitled to six peremptory challenges. Tex.R.Civ.P. 233. If there are multiple parties, the trial court must decide before peremptory challenges are exercised whether the litigants aligned on the same side are antagonistic with respect to issues that will be submitted to the jury. Id. If one of the litigants makes a motion before peremptory challenges are exercised, the trial court must "equalize the number of peremptory challenges so that no litigant or side is given an unfair advantage as a result of the alignment of the litigants and the award of peremptory challenges." Id. Thus, the trial court must determine whether the litigants aligned on one side are antagonistic to each other as to fact issues for the jury; if not, it should give each side the same number of challenges. Garcia v. Central Power & Light Co., 704 S.W.2d 734, 736 (Tex. 1986); Van Allen v. Blackledge, 35 S.W.3d 61, 64 (Tex. App.-Houston [14th Dist.] 2000, pet. denied). Whether aligned parties are antagonistic to each other is a question of law that must be determined after voir dire and before the parties exercise their strikes, based upon information taken from the pleadings, pretrial discovery, voir dire, and other information brought to the court's attention. Garcia, 704 S.W.2d at 736-37; In re M.N.G., 147 S.W.3d 521, 531 (Tex. App.-Fort Worth 2004, pet. denied). If the record supports a conclusion of antagonism between parties on one side, the trial court must exercise its discretion and determine how to allocate strikes among the parties. Patterson Dental Co. v. Dunn, 592 S.W.2d 914, 919 (Tex. 1979); Moore v. Altra Energy Techs., Inc., 321 S.W.3d 727, 741 (Tex. App.-Houston [14th Dist.] 2010, pet. denied).

         If we determine that the trial court erred in concluding that there was antagonism or in how it allocated the parties' peremptory challenges, we must then determine, based on an examination of the entire record, whether that error resulted in a "materially unfair" trial. Garcia, 704 S.W.2d at 737; In re M.N.G., 147 S.W.3d at 533; Van Allen, 35 S.W.3d at 66. "When the trial is hotly contested and the evidence sharply conflicting, the error results in a materially unfair trial without showing more." Garcia, 704 S.W.2d at 737; see Lopez v. Foremost Paving, Inc., 709 S.W.2d 643, 644 (Tex. 1986); Van Allen, 35 S.W.3d at 66. We also consider the number of jury questions, whether the verdict was unanimous, and whether there was a motion for summary judgment or motion for instructed verdict. Lopez, 709 S.W.2d at 645 ("[T]he fact that the jury was deadlocked at one point shows that the jury believed there was a sharp conflict in the evidence and that the trial was seriously contested."); Dunn, 592 S.W.2d at 921.

         Was there antagonism?

         Aside from pleadings filed by the Department and Susan, the only other relevant document on file is Mary's petition in intervention, in which she sought to be named sole managing conservator, asserting that Susan had engaged in a history of domestic violence and had abused or neglected Charles, but did not pray for termination of Susan's parental rights. In the first pretrial hearing, Susan raised the subject of jury strikes, arguing that the Department, Mary, and Charles's attorney ad litem were aligned and should share their strikes. The attorney ad litem said, "I would disagree with some of the alignment is there [sic]. So I would think that we would each have a few that we could do ourselves." The Department's attorney said, "I feel like my position is not [aligned] with [Mary's]. I don't know-I can foresee having differing avenues or viewpoints with [Charles's attorney ad litem], but I can understand the mother's concern; but [Mary] has not even requested termination in her petition. I don't-I don't think that we would be [aligned]." After the hearing, Susan filed a motion asking the trial court to grant six strikes total to the Department, Mary, and the attorney ad litem, asserting that there was no antagonism between those parties. In a second pretrial hearing, the Department stated that although Mary had not requested termination and had responded in discovery "that she was hoping that [Susan] and her could work it out in the custody agreement, " she had come to "share some sentiments of termination; and so I would just defer to the court on strikes." The trial court said it would take the matter under advisement.

         The day of trial, before the potential jurors were called in for voir dire, the trial court said it had decided to give Susan six strikes, while "the ad litem, CPS, and the intervenor will share eight. If you think that you cannot agree on your eight, then I would give the ad litem and CPS four and the intervenor four." The court and the attorneys moved on to discuss how much time each party would have to present their case. Asked whether she would need additional time to present her case after the Department and Susan presented their witnesses, Mary responded, "I think my case pretty much tracks the same facts and witnesses as-as the case in chief, " and later clarified that she might have three additional witnesses if those individuals were not called by the Department or Susan. The attorney ad litem answered the same question by saying she might need an additional day or two, depending on whether all of her witnesses were called during the other parties' presentations. During that discussion, the Department said, "I would note that for the purposes of strike, I would agree that our aim is the same. But I think for presentation of the case, it is wholly different, " and went on to explain that the Department's case had to do with "the services that [Susan] completed and didn't complete, " whereas Mary and the attorney ad litem had "a whole different angle" to present. Susan then said, "We raised an oral motion to equalize the strikes. And you've denied that motion, correct?" The trial court responded, "I granted it in part. I've equalized the strikes from the standpoint of these folks don't get six each." Shortly before voir dire, Susan re-urged her motion, asserting that the other three parties were "clearly aligned." The trial court denied Susan's request.

         The Department's voir dire began with questions about how the panelists felt about the Department. It explained its conservatorship process and service plans, stated that it was seeking the termination of Susan's parental rights, and asked for the panelists' thoughts on what makes a good parent and whether birth parents were preferable to adoptive parents. As to best interest, the Department said that "another attorney is going to tell you about 'best interest.'" In her voir dire, Mary explained her situation as an intervenor and asked about the panelists' experiences with the Department, the foster-care system, and the adoption process. She also asked what made someone a good parent and whether the panelists thought a non-relative could be good parent. Mary asked the panelists about abuse or neglect and substance abuse, either their own or in others. Finally, she asked whether any panelists could never terminate parental rights. The attorney ad litem then explained her role as guardian and attorney ad litem, saying her task was to conduct an investigation and advocate for Charles. She asked the panelists what factors should be considered in looking at best interest and in assessing the best placement for a child and asked how the panelists felt about marihuana use by a parent. The clerk's record contains one "Jury Panel" sheet for "State, Ad Litem, [Mary], " showing their eight strikes. It is unclear whether the attorney ad litem determined her own four strikes or worked with the Department and Mary, but there were no duplicate strikes made, and the record includes indications that the parties conferred about their objections to some panelists.

         We cannot conclude that the record before the trial court at the time it allocated strikes supports a conclusion that there was any antagonism between the Department, Mary, and the attorney ad litem. The Department and Mary agreed that they were aligned in seeking termination of Susan's parental rights. Although the attorney ad litem asserted at one point that she had a "different angle" and asked for a few strikes of her own, she did not explain how her view of Charles's best interest was in any way antagonistic to the Department or Mary. Cf. In re P.A., No. 02-03-00277-CV, 2004 WL 2365039, at *2-3 (Tex. App.-Fort Worth Oct. 21, 2004, pet. denied) (mem. op.) (discussing evidence of possible antagonism between attorney ad litem and Department). We conclude, as a matter of law, that the record does not contain evidence of antagonism between the attorney ad litem, Mary, or the Department on any issue submitted to the jury. See Dunn, 592 S.W.2d at 918, 921 ("antagonism must exist on an issue of fact that will be submitted to the jury, not on a matter that constitutes a pure ...

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