E.B. v. Texas Dept. of Human Services
| Decision Date | 22 February 1989 |
| Docket Number | No. 3-88-165-CV,3-88-165-CV |
| Citation | 766 S.W.2d 387 |
| Parties | E.B., Appellant, v. TEXAS DEPARTMENT OF HUMAN SERVICES, Appellee. |
| Court | Texas Court of Appeals |
Leonard F. Green, Brown, Threatt & Green, P.C., Austin, for appellant.
Ronald Earle, Dist. Atty., Ruth-Ellen Gura, Asst. Dist. Atty., Suzanne Covington, John J. Sampson, Children's Rights Clinic, Attys. ad Litem, University of Texas Law School, Austin, for appellee.
Before SHANNON, C.J., and CARROLL and JONES, JJ.
Appellant E.B. seeks to set aside the Travis County district court judgment which terminated the parent-child relationship between herself and her two minor daughters. 1 Appellee is the Texas Department of Human Services. This Court will reverse the judgment of the district court.
Appellee urges, at the threshold, that the judgment must be affirmed because appellant failed to file a complete statement of facts. In general, in the absence of a complete statement of facts, it is true that the reviewing court must presume that omitted material supported the judgment. Englander Co. v. Kennedy, 428 S.W.2d 806 (Tex.1968). Moreover, the Supreme Court has stated broadly that for a reviewing court to determine whether claimed error in the court's charge is reversible, it must consider the pleadings, "the evidence presented at trial," and the charge in its entirety. Island Rec. Dev. v. Republic of Texas Sav., 710 S.W.2d 551, 555 (Tex.1986).
Appellant acknowledges that she limited the statement of facts to include only her objections to the district court's charge. Nonetheless, appellant urges that because she complied with the requirements of Tex.R.App.P.Ann. 53(d) (Pamp.1988) she is entitled to its benefits. Rule 53(d) provides:
If appellant requests or prepares a partial statement of facts, he shall include in his request or proposal a statement of the points to be relied on and shall thereafter be limited to such points. If such statement is filed, there shall be a presumption on appeal that nothing omitted from the record is relevant to any of the points specified or to the disposition of the appeal. Any other party may designate additional portions of the evidence to be included in the statement of facts.
Appellant properly designated the points of error upon which she intended to rely. Accordingly, appellant is entitled to the Rule 53(d) presumption that nothing omitted from the record is relevant to the disposition of her appeal. Producer's Const. Co. v. Muegge, 669 S.W.2d 717, 718 (Tex.1984). Appellee's contention that the judgment must be affirmed on the record is without merit.
Appellant attacks the judgment by three points of error complaining of a defective submission in the court's charge. Over appellant's objection, the district court instructed the jury:
For the parent-child relationship in this case to be terminated, it must be proven by clear and convincing evidence that at least one of the following events has occurred:
(1) the parent has 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
(2) the parent has 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.
In addition, it must also be proven by clear and convincing evidence that termination of the parent-child relationship would be in the best interest of the child.
Following the quoted instruction, the court asked:
Should the parent-child relationship between [appellant] and the child E.B. be terminated?
Predicated upon an affirmative answer, the district court rendered judgment terminating the parent-child relationship. On appeal, appellant asserts that the district court's submission was defective. By objection and requested jury questions 2 appellant apprized the district court of the claimed defective submission. 3
As we understand, appellant would have had the district court submit the cause in separate jury questions in substantially the following form:
Do you find by clear and convincing evidence that [appellant] knowingly placed or allowed the child, [E.B.], to remain in conditions or surroundings which endangered the physical or emotional well-being of the child, [E.B.]?
Answer: "Yes" or "No"
Answer: __________
Do you find by clear and convincing evidence that [appellant] engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangered the physical or emotional well-being of the child, [E.B.]?
Answer: "Yes" or "No"
Answer: __________
Do you find by clear and convincing evidence that termination of the parent-child relationship between [appellant] and the child [E.B.] would be in the best interest of the child, [E.B.]?
Answer: "Yes" or "No"
Answer: __________
As asserted in her objections at trial and in her brief on appeal, appellant insists that the district court's submission permitted the State to escape the burden placed upon it by Tex.R.Civ.P.Ann. 292 (Pamp.1988) and Tex. Family Code Ann. § 15.02 (1986): that at least ten jurors agree that appellant had violated one or more grounds for termination set out in § 15.02. More specifically, Rule 292 provides in pertinent part that a verdict may be rendered in any cause "by the concurrence, as to each and all answers made, of the same ten members of an original jury of twelve...." Texas Family Code Ann. § 15.02 permits the termination of the parent-child relationship "if the court [factfinder] finds" that the parent has:
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(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; or
(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;
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Appellant maintains that § 15.02 and Rule 292 require at least ten jurors to agree that she violated at least one of the two pleaded termination grounds before her parental rights can be legitimately terminated. The charge as given, however, may have allowed the court to terminate appellant's parental rights on the basis of five (and only five) jurors concluding that appellant "placed the [child] in a dangerous situation" and five (and only five) jurors concluding that appellant "engaged in dangerous conduct." Accordingly, appellant urges that the district court's submission of a single question incorporating the two independent grounds for termination was not "feasible" pursuant to Tex.R.Civ.P.Ann. 277 (Pamp.1988) and was error.
In defense of the district court's judgment, the State insists that Rule 277 not only permits but indeed mandates the district court's submission. The district court's submission, suggests the State, is the broad-form submission addressed by Rule 277. Rule 277, as effective January 1, 1988, provides in pertinent part that "[i]n all jury cases the court shall, whenever feasible, submit the cause upon broad-form questions." In support of its thesis, the State calls this Court's attention to the continuing efforts by the Supreme Court to simplify special issue...
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In the Interest of B.L.D. and B.R.D.
...and 218.3C (1998). The Austin court held that Rule 292 had been violated by the broad-form submission.14 Texas Dept. of Human Services v. E.B., 766 S.W.2d 387 (Tex. App.--Austin 1989), rev'd, Texas Dept. of Human Services v. E.B., 802 S.W.2d 647 (Tex. 1990). It also held that Rule 277's adm......
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...persons who engaged in conduct which endangers the physical or emotional well-being of the child. See E.B. v. Texas Department of Human Services, 766 S.W.2d 387, 388 (Tex.App.-Austin 1989), reversed by, 802 S.W.2d The Austin Court of Appeals reversed the judgment terminating the parental ri......
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In the Interest of M.C.M. et al.
...least 10 jurors, that the parent violated one or more of the grounds for termination under the statute. E. B. v. Texas Dep't of Human Servs., 766 S.W.2d 387, 390 (Tex. App.--Austin 1989), rev'd, 802 S.W.2d 647 (Tex. 1990). The supreme court reversed the court of appeals and held, "The contr......
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Texas Dept. of Human Services v. E.B.
...upon the jury's verdict. The court of appeals reversed and remanded the cause, holding that multiple alternative submissions were proper. 766 S.W.2d 387. We reverse the judgment of the court of appeals and affirm the judgment of the trial The Texas Department of Human Services sued for term......