In re Cdk

• Decision Date: 03 January 2002
• Docket Number: No. 07-00-0239-CV.,07-00-0239-CV.
• Parties: In the Interest of CDK, JLK, and BJK, Minor Children.
• Court: Texas Court of Appeals

64 S.W.3d 679

In the Interest of CDK, JLK, and BJK, Minor Children.

No. 07-00-0239-CV.

Court of Appeals of Texas, Amarillo.

January 3, 2002.

Michael A. Warner, Amarillo, for appellant.

Cynthia Brown, Dept. of Protective and Regulatory Services, Lubbock, for appellee.

Before QUINN, REAVIS and JOHNSON, JJ.

BRIAN QUINN, Justice.

In this appeal, Marshall and Rose Keys (the Keys), challenge a trial court's judgment terminating their parental rights to their children, CDK, JLK, and BJK. So too has the attorney ad litem representing the children filed a notice of appeal contesting the termination. Three issues pend for our resolution. They involve 1) the legal and factual sufficiency of the evidence supporting termination, 2) the admission of expert testimony concerning the findings of an Abel Assessment conducted upon Marshall Keys, and 3) the admission into evidence of Marshall Keys' 1977 criminal conviction for sexually abusing a child, namely his daughter from a prior marriage. We reverse.

Background

The Keys were married in 1987, and their children, CDK, JLK and BJK, were born in 1988, 1989 and 1991, respectively. Child Protective Services (CPS) became involved with the family in 1991 and subsequently removed the children in November 1992. The purported reason for doing so involved physical abuse suffered by CDK and physical neglect experienced by the other two children.

Testimony reflected that both the Keys were unkempt and maintained a dirty house. The latter was in extreme disarray with trash strewn on the floor and roaches covering the floor, walls and ceiling. One witness spoke of how the walls appeared to be moving and how roaches crawled into her purse and fell from the ceiling onto her. This condition, as well as Rose's abuse of alcohol, were concerns to the various agencies which allegedly tried to assist the Keys.

Subsequently, in 1994, all three children were returned to the home. CPS along with other local agencies continued to provide services to the family. And, though the home environment improved, the improvement did not continue. The Keys unilaterally ceased giving one of their children needed medication, and all three youths began to exhibit inappropriate behavior. Instances of Rose's continued abuse of alcohol also were documented, and on one occasion her intoxication resulted in her leaving the children unsupervised while she lay unconscious at the home of her employer.

A petition for termination was filed wherein CPS alleged two grounds purportedly justifying such relief. Specifically, it alleged that the Keys had 1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children and 2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. Tex. Fam.Code Ann. § 161.001(D) & (E).

The termination proceedings against both parents were tried jointly. Evidence was introduced about the Keys' alcohol consumption, Rose's 1990 plea of guilty to a charge of driving while intoxicated, Marshall's 1977 conviction for sexual assault of a child, Rose's plea of guilty to injuring or endangering a child as result of CDK's injuries sustained in 1992, and JLK's propensity to engage in simulated sexual acts and masturbate in private and public venues. Upon hearing this and other evidence, the jury returned a verdict against the Keys terminating their parental rights viz the children.

Issue One—Sufficiency of the Evidence

The Keys initially challenge both the legal and factual sufficiency of the evidence supporting the jury's verdict. We overrule the point for several reasons.

First, though the two appellants describe the applicable standard of review, their analysis or application of the standard consists of the following:

In this case, acts of both Respondents too remote in time were allowed in and were highly prejudicial. There is little doubt that these kids are screwed up. The question is how did they get that way? [sic] These children have been in CPS care for many years where they were stuck in families as `fifth wheels' for a major part of their life. The influence of other foster children and other `disturbed' children they have been around has not been good for their physical or emotional well being and has caused some of the problems these children have encountered.

How the foregoing argument evinces a want of legally or factually sufficient evidence goes unexplained. Nor does the summary explain how nothing in the rather extensive evidentiary record before us supports the fact-finder's decision. Instead, the Keys merely conclude that their acts were too remote in time, that the children are "screwed up," and that the CPS and others are responsible for the condition of CDK, JLK, and BJK. This does not satisfy the requirement of Rule 38.1(h) of the Texas Rules of Appellate Procedure. That rule not only requires an appellant to cite to pertinent legal authority and the record, Tex.R.App. Proc. 38.1(h), but also provides the reviewing court with substantive analysis of his argument. See Bullard v. State, 891 S.W.2d 14, 15 (Tex. App.-Beaumont 1994, no pet.) (discussing the rule as applied to a constitutional issue). Because the Keys do not do so here, since they do not explain how the supposed remote acts, conduct of the CPS or influence of other children somehow rendered the verdict legally or factually insufficient, see Raw Hide Oil & Gas, Inc. v. Maxus Exploration Co., 766 S.W.2d 264, 275-76 (Tex.App.-Amarillo 1988, writ denied) (describing the tests applicable to claims of legal and factual insufficiency), or why nothing in the record supports the verdict, they waived the point.

Admission of Abel Assessment

Next, the Keys assert that the trial court erred in admitting purported expert evidence proffered by Richard Mack (Mack). The latter spoke about the administration of a test known as the Abel Assessment to Marshall Keys. The test purportedly evaluated Marshall Keys' propensity for sexual deviancy and the risk he posed to his children.

According to Mack, Marshall's "highest sexual interest is in adolescent males and the lowest ... is in adult females...." Such interests were "the opposite that [they] should be for a standard heterosexual male-female relationship," continued Mack.¹ Moreover, a child twelve years of age, according to Mack, would be at a "significant" risk "because [Marshall's] sexual interest for that age, nine to thirteen, is only slightly less than the adolescent male."² So too did Mack state that Marshall had an "extremely high" male interest "along all age categories until you get to adulthood" and a "very strong sexual interest ... to male children ... and to female children as well but under the age of adolescence, pre-school or under thirteen...." When asked, Mack further opined that 1) Marshall "has a problem with deviant sexual interest," 2) he (i.e. Mack) "would be very concerned about this level of deviant sexual interest," 3) to "put him [Marshall] in a situation where he has access to children and where he's not being treated ... is to put him in a risky situation," and 4) "to have accessibility to kids and that high sexual deviance is to make everyone unsafe." Finally, based upon his interpretation of the Abel Assessment, the witness concluded by all but labeling Marshall a pedophile.³

The Keys secured a timely running or continuing objection to the foregoing testimony. Their complaint was founded upon Rule 702 of the Texas Rules of Evidence. Among other things, they believed that Mack's purported expert testimony was unreliable when tested against the standard resurrected by E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549 (Tex.1995) and that the trial court's admission of same was reversible error. We agree and sustain the contention.

Applicable Authority

To be admissible, expert testimony must be 1) uttered by a qualified individual 2) relevant, and 3) based upon a reliable foundation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex.2001). Though the question of whether these elements have been established lies within the trial court's discretion, id., the party tendering the evidence bears the burden of establishing them. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d at 557.

Additionally, and concerning the element of reliability, we have been told that the applicable test is flexible but nonetheless focuses "solely on the underlying principles and methodology, not on the conclusions they generate." Id. at 557. This obligates the proponent of the evidence to prove that the specific technique or methodology from which the expert derives his opinions "has been subjected to a rate of error analysis." Id. at 559. In other words, the methodology must have been subjected to testing to assess its legitimacy. So too must the proponent show that the theory at issue has been generally accepted by members of the relevant scientific community. Id. Moreover, it is not enough for the purported expert to merely state that the methodology has been accepted and is reliable. Id. at 559-60. Rather, the proponent must illustrate same through substantive evidence, id., sufficient to allow the trial court to "evaluate the methods, analysis, and principles relied upon in reaching the opinion." Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 725-26 (Tex.1998), quoting, Watkins v. Telsmith, Inc., 121 F.3d 984, 991 (5th Cir.1997). And, while a myriad of factors have been mentioned as pertinent in assessing reliability, see, E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d at 557 ...