In re N.R.C.

• Decision Date: 05 December 2002
• Docket Number: No. 14-01-01241-CV.,14-01-01241-CV.
• Citation: 94 S.W.3d 799
• Parties: In the Interest of N.R.C. and L.A.C.
• Court: Texas Court of Appeals

Page 799

94 S.W.3d 799

In the Interest of N.R.C. and L.A.C.

No. 14-01-01241-CV.

Court of Appeals of Texas, Houston (14th Dist.).

December 5, 2002.

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Richard N. Countiss, Houston, for appellants.

Marcia L. Zimmerman, Houston, Otto D. Hewitt, Alvin, for appellees.

Panel consists of Justices EDELMAN, SEYMORE, and GUZMAN.

OPINION

EVA M. GUZMAN, Justice.

Rachel appeals from a judgment terminating her parental rights.¹ She challenges the permissibility of the trial court's sanctions and its refusal to grant her request for an independent psychological examination of the children and their father, David. The trial court's sanctions order precluded Rachel from presenting any witnesses other than herself at trial. We find the trial court abused its discretion in imposing sanctions that were both impermissible under the circumstances and violative of the TransAmerican Natural Gas Corporation v. Powell, 811 S.W.2d 913 (Tex. 1991) standards. We also find the trial court abused its discretion in denying Rachel's request for an independent psychological examination. Accordingly, we reverse and remand for a new trial.

I. FACTUAL BACKGROUND

Rachel and David divorced in 1991. At that time, the trial court named them joint managing conservators of their two children, N.R.C. and L.A.C. The children lived with David during the school year and with Rachel during the summer. In August 2000, David sought and subsequently obtained termination of Rachel's parental rights.

Prior to trial on the termination suit, the trial court appointed an attorney ad litem for the children. The attorney ad litem filed a motion for security of costs and attorney's fees. The trial court granted the motion and ordered each party to deposit $2,500 with the ad litem as security. Rachel failed to pay the ad litem's deposit, and therefore, the ad litem filed a motion for enforcement of the trial court's order and for sanctions. In her motion, the ad litem requested that the trial court order Rachel to pay the costs and attorney's fees related to the motion. She also asked the trial court to strike Rachel's pleadings and enter a judgment in favor of David. In the alternative, the ad litem requested that the trial court hold Rachel in contempt and punish her as the trial court deemed just and fair. An associate judge heard the motion and granted the ad litem a judgment for attorney's fees in the amount of $1,048.35. Though the motion did not request such a sanction, the associate judge further sanctioned Rachel by prohibiting her from presenting witnesses on her behalf other than herself. The trial court adopted the associate judge's ruling, ordering that Rachel was "prohibited from presenting any witnesses on her behalf, save and except herself, at the trial on the merits."

At trial, David presented evidence that Rachel had verbally and physically abused the children and that the children did not want to visit Rachel. David introduced the testimony of Toni Jo Lindstrom, a licensed family counselor, and Dr. Grace Jameson, a clinical professor in psychiatry at the University of Texas Medical Branch at Galveston. Ms. Lindstrom and Dr. Jameson testified that it would be in the best interest of the children to terminate Rachel's parental rights. Rachel testified that she recognized the need to control her anger and that with appropriate psychological help, she could repair the relationship with her children. As per the sanction, Rachel was not allowed to present any other witnesses. The jury unanimously found that Rachel's parental rights should be terminated.

II. ISSUES PRESENTED FOR REVIEW

Rachel raises four issues on appeal: (1) the striking of witnesses is an impermissible sanction for failing to pay attorney's fees; (2) the trial court did not comply with the TransAmerican standards; (3) the trial court abused its discretion and/or committed errors of law by striking her witnesses without notice; and (4) the trial court abused its discretion by refusing her request for a psychological examination of David and the children.

III. DISCUSSION

Before addressing Rachel's points of error, we first address David's argument that the sanctions issue should not be reached because Rachel failed to adequately perfect her appeal. Specifically, David argues the sanctions issue should not be reached because: (1) Rachel failed to appeal the master's ruling and thus did not adequately preserve error; (2) Rachel's offer of proof of the proposed witnesses' testimony is inadequate; and (3) the proposed witnesses' testimony is cumulative of Rachel's own testimony and, thus, its exclusion, if error, was harmless.

A. FAILURE TO APPEAL THE MASTER'S RULING

David claims Rachel waived her challenge to the sanctions imposed by the associate judge because she did not file an appeal of the associate judge's ruling with the trial court. See TEX. FAM.CODE § 201.015. Although section 201.015 indeed states that a party "may appeal an associate judge's report by filing notice not later than the third day after the date the party receives notice of the substance of the associate judge's report," Id. (emphasis added), David fails to address section 201.015 in conjunction with section 201.016, which provides:

(a) Failure to appeal to the referring court, by waiver or otherwise, the approval by the referring court of an associate judge's report does not deprive a party of the right to appeal to or request other relief from a court of appeals or the supreme court.

(b) The date an order or judgment by the referring court is signed is the controlling date for the purposes of appeal to or request for other relief from a court of appeals or the supreme court.

TEX. FAM.CODE § 201.016; see also In re S.G.S., 53 S.W.3d 848, 852 (Tex.App.-Fort Worth 2001, no pet.) (finding that failure of father-defendant to appeal associate judge's venue ruling to referring court did not preclude appellate review). Thus, under section 201.016, Rachel need not have appealed from the associate judge's sanctions ruling in order to preserve her right to complain to this court. Id.

At submission, David argued that the "other relief" referred to in subsection (a) means relief other than the particular measure which a party failed to appeal to the referring court. We conclude that the phrase "other relief" refers to any and all relief other than relief obtained from the referring court. Any other reading of the statute would defeat the primary purpose of the section 201.016, which is to allow litigants to appeal associate judges' rulings that they did not appeal to the referring court. A plain reading of the statutory language does not support David's interpretation of section 201.016. See State Dept. of Highways & Pub. Transp. v. Gonzales, 82 S.W.3d 322, 327 (Tex.2002) (noting that unambiguous statutes are to be interpreted according to their plain meaning).

B. SUFFICIENCY OF THE OFFER OF PROOF

David also contends that Rachel's offer of proof was incomplete, and thus, the exclusion of her witnesses presents nothing for review. We disagree. Defense counsel began his offer of proof noting that Rachel would have called Paula Hudson, the executive director of the Jameson Center. In summarizing Hudson's proposed testimony, counsel introduced into evidence a letter in which Hudson detailed her observations of Rachel and remarked upon her progress and suitability as a parent. Hudson concluded that supervised visitation with "appropriate structuring" would provide opportunities within a safe environment to enhance both the development of positive relationships between Rachel and her children and to practice skills learned in therapy.

Defense counsel summarized the proposed testimony of Rachel's boyfriend and mother as follows:

"As further proof, had [Rachel] been allowed to call witnesses to testify in her own behalf she would have called Mr. Gregory Wassinger, who, as testimony has revealed, has been her significant other for the past four years, to testify to her actions and to the best interests of the children. Had she also been allowed to put on testimony she would have called Sameline [surname omitted] who has also been referred to in reference to this case as Grandma Sammie, also to testify to the best interests of the children."

Rule 103(a)(2) of the Texas Rules of Evidence provides that error may not be predicated upon a ruling which excludes evidence unless a substantial right of the party is affected, and the substance of the objection was made known to the trial court by offer of proof. Ludlow v. DeBerry, 959 S.W.2d 265, 269-70 (Tex.App.-Houston [14th Dist.] 1997, no pet.). To adequately and effectively preserve error, an offer of proof must show the nature of the evidence specifically enough so that the reviewing court can determine its admissibility. Bohatch v. Butler & Billion, 905 S.W.2d 597, 607 (Tex.App.-Houston [14th Dist.] 1995), aff'd, 977 S.W.2d 543 (Tex.1998); Powell v. Powell 554 S.W.2d 850, 854-55 (Tex.Civ.App.-Tyler 1977, writ ref'd n.r.e.). Rather than mandating formal proof, however, the Rules require only a "short, factual recitation of what the testimony would show is sufficient `evidence' to preserve an issue for appeal." Cathleen C. Herasmichuk, TEXAS RULES OF EVIDENCE HANDBOOK 96 (4th ed.2001). Courts prefer a concise statement over a lengthy or arduous presentation. Tatum v. State, 798 S.W.2d 569, 571-72 (Tex.Crim.App.1990). The offer of proof may be made by counsel, who should reasonably and specifically summarize the evidence offered and state its relevance unless already apparent. Warner v. State, 969 S.W.2d 1, 2 (Tex.Crim.App.1998). If counsel does make such an offer, he must describe the actual content of the testimony and not merely comment on the reasons for it. Love v. State, 861 S.W.2d 899, 900-01 (Tex.Crim.App.1993).

Counsel referenced the "best interests of the children" standard in...