In re M.S.

• Decision Date: 11 April 2002
• Docket Number: No. 09-01-037 CV.,09-01-037 CV.
• Citation: 73 S.W.3d 537
• Parties: In the Interest of M.S., E.S., D.S., S.S., and N.S., Minor Children.
• Court: Texas Court of Appeals

73 S.W.3d 537

In the Interest of M.S., E.S., D.S., S.S., and N.S., Minor Children.

No. 09-01-037 CV.

Court of Appeals of Texas, Beaumont.

Submitted February 25, 2002.

Decided April 11, 2002.

Michael D. Papania, Law Offices of James A. DeLee, Port Arthur, for appellant.

Duke Hooten, Cathren Page Koehlert, Austin for appellees.

Before WALKER, C.J., BURGESS and GAULTNEY, JJ.

OPINION

WALKER, Chief Justice.

Shana Strickland appeals the termination of her parental relationship with her five children, M.S., E.S., D.S., S.S., and N.S. Four issues are presented in her brief.

Issue one contends, "The Trial Court erred by admitting into evidence `Temporary Orders Following Adversarial Hearing' and a `Permanency Hearing Order' because the findings in the Orders amounted to testimony by the Trial Judge in violation of Rule 605 of the Texas Rules of Evidence." When the Department of Protective and Regulatory Services ("CPS") offered the temporary order, Strickland's counsel stated, "Note my proforma objection as to not the best interest, Your Honor." When the permanency hearing order was offered, counsel stated, "Same objection." The trial court apparently understood the objections to be "best evidence" objections addressing authentication of the documents. See Tex.R. Evid. 1002. Strickland does not challenge authentication on appeal. No other specific ground of objection was raised, and no other specific ground is apparent from the context. Since she did not preserve error, we shall address the admission of the documents only to the extent that the Rules of Evidence exempt preservation of error. See Tex.R. Evid. 103; Tex.R.App. P. 33.1(a).

"The judge presiding at the trial may not testify in that trial as a witness. No objection need be made in order to preserve the point." Tex.R. Evid. 605. In this case, however, the judge did not testify as a witness. The evidence in question is comprised of two documents, not testimony by the judge, who remained on the bench at all times and stayed out of the witness box.

Strickland cites In the Interest of T.T., 39 S.W.3d 355 (Tex.App.-Houston [1st Dist.] 2001, no pet.), as support for her argument that admission of a court order violates Rule 605. T.T. held that a trial judge's temporary order was simultaneously a statement not made while testifying and testimony by the presiding judge. Id. at 359 (citing Tex.R. Evid. 802; 605). The court resolved this apparent oxymoron by treating the order as the functional equivalent of testimony. Id. A few cases involving the federal rule have addressed Rule 605 in situations that did not involve the presiding judge actually testifying as a witness in open court. Kennedy v. Great Atlantic & Pacific Tea Co., Inc., 551 F.2d 593, 597-98 (5th Cir.1977), noted that Rule 605 concerns the disqualification of the judge himself, rather than his law clerk, but held that the trial court abused its discretion in denying a motion to disqualify the clerk as a witness after the clerk examined the scene of the accident in controversy. And Jones v. Benefit Trust Life Ins. Co., 800 F.2d 1397, 1400 (5th Cir.1986), which held that the trial court did not abuse its discretion in excluding a pre-trial order denying summary judgment that was nullified by a later granting of the motion for summary judgment, mentioned in dicta that the offering party's position "would seem at odds with Fed.R.Evid. 605."

However, the Texas Court of Criminal Appeals has strictly construed Rule 605. In holding that the rule did not encompass future proceedings over which the judge was not presently presiding, it stated, "The phrase `the judge presiding at the trial may not testify in that trial' means that the judge who is presiding over a proceeding may not `step down from the bench' and become a witness in the very same proceeding over which he is currently presiding." Hensarling v. State, 829 S.W.2d 168, 170 (Tex.Crim.App.1992). The Court of Criminal Appeals has also held, in a case where the judge contacted the jurors to inform them that the defendant had escaped from custody, that a statement by the judge in his official capacity is not "testimony." Hammond v. State, 799 S.W.2d 741, 746-47 (Tex.Crim. App.1990).

The court in T.T. reasoned that the order, which included a finding that the respondent had endangered the children, amounted to an improper comment on the weight of the evidence. 39 S.W.3d at 359. That conclusion may well have been warranted under the circumstances present in that case. It seems to us, however, that the problem should be addressed under Texas Rule of Evidence 403, not Rule 605. See Tex.R. Evid. 403 ("Although relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice...."). Had Strickland objected to the admission of the court's orders under Rule 403, CPS would likely have argued that it needed the documents in order to prove its allegations that Strickland failed to comply with the provisions of a court order that specifically established the actions necessary to obtain return of the children who have been in the managing conservatorship of CPS for not less than nine months as a result of the children's removal under Chapter 262. See Tex. Fam.Code. Ann. § 161.001(1)(O) (Vernon Supp.2002). That particular Family Code section was apparently not at issue in T.T., which might explain why the court was willing to apply Rule 605. Under the facts of our case, we hold that the documents in question are not testimony by the trial judge prohibited by Texas Rule of Evidence 605. Issue one is overruled.

Issue two urges, "The Trial Court erred by admitting into evidence a `Memorandum of Agreement' because the findings in the Orders amounted to testimony by the Trial Judge in violation of Rules 605 and 803 of the Texas Rules of Evidence, and the confidentiality statutes under the Texas Practice And (sic) Remedies Code." Strickland's Rule 605 argument fails for precisely the same reason as discussed in our consideration of her first issue, and we shall not repeat that analysis here. However, we must address the matters raised by counsel's objection to the memorandum, which were, "Hearsay, confidentiality, and a part of negotiations." The trial court sustained those objections. Counsel for CPS then offered the document, which had been adopted as a Rule 11 agreement, "as a court order." See Tex.R. Civ. P. 11; Tex.R. Evid. 803(8). The Court then modified its ruling, stating, "I would sustain your objection only as to any discussion by this witness of anything that occurred in the mediation; however, as to the document itself, I will overrule your objection; and I admit it."

The "Memorandum of Agreement" set forth the acts that Strickland would undertake; CPS agreed to return the children to Strickland if she complied with the agreement. That agreement is not hearsay. First, the memorandum was not offered for the truth of matters stated therein, but for the fact that the agreement was made. See Tex.R. Evid. 801. To the extent that it could be argued to fit within Rule 801(d), a statement by Strickland contained in the agreement would not be hearsay because it was an admission by the party opponent under Rule 801(e). See Tex.R. Evid. 801. To the extent that the memorandum, which was adopted by the trial court as an order, could be argued to include statements of belief by the trial court or any of the parties to the agreement, it would be admissible as a public record, and as a statement against civil interest. See Tex.R. Evid. 803(8), (24).

Strickland cites T.T. as authority for the proposition that the agreement was inadmissible under the Texas Civil Practice and Remedies Code. T.T., 39 S.W.3d at 360. In T.T., the mediator's report, which was entered as a Rule 11 agreement pursuant to mediation, was attached as an exhibit to the judge's temporary order. Id. As in T.T., Strickland and CPS agreed that the memorandum would operate as a fully enforceable Rule 11 agreement. See Tex.R. Civ. P. 11. T.T. held that, although the parties waived confidentiality under Rule 11, they did not waive the right that the attached mediator's report not be used as evidence against them in a judicial proceeding. 39 S.W.3d at 360; see TEX. CIV. PRAC. & REM.CODE ANN. § 154.073(a) (Vernon Supp.2002). Here, the evidence is neither a "communication ... made by a participant in an alternative dispute resolution procedure" nor a "record made at a dispute resolution procedure"; rather, it is a written agreement entered into the court record without any attempt to maintain its confidential nature before its entry. "If the parties reach a settlement and execute a written agreement disposing of the dispute, the agreement is enforceable in the same manner as any other written contract." Tex. Civ. Prac. & Rem.Code Ann. § 154.071 (Vernon 1997). The document became a public record not subject to any restrictions under the Civil Practice and Remedies Code. Issue two is overruled.

Issue three urges, "The evidence was legally sufficient, or alternatively, factually sufficient to support the jury verdict that it was in the children's best interest to terminate the mother's parental rights and the finding of a statutory factor under Tex. Fam.Code § 161.001(1)." We understand Strickland's argument to challenge the legal and factual sufficiency of the evidence to support the verdict. Strickland admits that she did not preserve error, but argues that the legal and factual sufficiency of the evidence to support the jury's verdict may be challenged for the first time on appeal. The Courts of Appeals are split on this issue. The First, Second, and Thirteenth Courts of Appeals have held that a sufficiency challenge must be preserved in a termination of parental rights case. In the Interest of G.C., 66 S.W.3d 517 (Tex. App.—Fort Worth, no pet. h.); In the Interest of I.V., 61 S.W.3d 789 (Tex.App.-Corpus Christi 2001, no pet.); In the Interest of...