In re S.P.

• Decision Date: 05 August 2005
• Docket Number: No. 05-03-00905-CV.,05-03-00905-CV.
• Citation: 168 S.W.3d 197
• Parties: In the Interest of S.P., et al., Children.
• Court: Texas Supreme Court

168 S.W.3d 197

In the Interest of S.P., et al., Children.

No. 05-03-00905-CV.

Court of Appeals of Texas, Dallas.

May 26, 2005.

Rehearing Overruled August 5, 2005.

COPYRIGHT MATERIAL OMITTED

Douglas R. Dunn, Dallas, for ad litem.

Rhonda F. Hunter, Dallas, Dean M. Swanda, Arlington, for Appellant.

William T. (Bill) Hill, Jr., Dallas, for Appellee.

J. Darlene Ewing, Law Offices of J. Darlene Ewing, Dallas, for Respondent.

Cheryl D. Holder, Asst. Dist. Atty., Dallas, for State.

Before Justices MOSELEY, O'NEILL, and RICHTER.

OPINION NUNC PRO TUNC

Opinion by Justice MOSELEY.

On our own motion, we issue this opinion nunc pro tunc to correct a clerical error in our May 24, 2005 opinion. This is now the opinion of the Court.

Based on the jury's verdict, the trial court entered a judgment terminating the parental rights of Katrina Palmo (Mother) and Charles Anthony Gray (Father) to their five minor children, S.P., S.G., M.G., S.P., and M.G. Mother and Father appeal. As set forth herein, we conclude that the Texas Family Code requirement that appellants file a statement of points on appeal within fifteen days of the final order is not jurisdictional, and thus any failure to include issues in that filing does not waive them on appeal. See TEX. FAM.CODE ANN. § 263.405(b) (Vernon 2002). We further conclude that the evidence is legally sufficient to show Mother engaged in a course of conduct which had the effect of endangering M.G.'s physical or emotional well-being. We also conclude that the return of a favorable home study for an out-of-state relative does not require temporary placement with that relative, and that the trial court did not abuse its discretion in denying Father's motion for temporary placement.

However, we also conclude the trial court abused its discretion in admitting the videotaped statement of a minor child (the couple's niece) in lieu of her testimony because there was no evidence that use of the statement in lieu of live testimony was necessary to protect her welfare. Therefore, we reverse the trial court's judgment and remand for further proceedings.

BACKGROUND

Mother, Father, and their four children lived in the same apartment. In December, 2001, Mother's minor niece, D.H., made an outcry statement alleging Father (i.e. the father of the children at issue here) had sexually abused her. The next day, the Department of Protective and Regulatory Services (the "Department") removed the four older children from the home. A month later, shortly after the birth of the couple's fifth child, M.G., the Department removed him from the hospital. The Department was appointed temporary managing conservator for all of the children. The Department moved to terminate the parental rights of both parents as to all five children.

At trial, the jury heard evidence that the Department had removed the four older children twice before, once when one child had been severely scalded by Father, who claimed he was in a hurry to bathe the child and did not realize the water was too hot, and once when Mother had a mental "breakdown" and reported that her oldest child had been sexually abused by her sister's boyfriend. The children were later returned against the Department's recommendation after their parents had completed required family services, including domestic abuse counseling. The jury also saw the videotaped statement of D.H., the couple's niece, which was admitted in lieu of her live testimony and without giving Mother or Father the opportunity to cross-examine her. The jury also heard other evidence that will be detailed herein.

Over the parents' objections, the case was submitted to the jury on an unusual jury charge. The jury was asked two questions concerning each parent-child relationship—for a total of twenty questions. Every question was in the following form: "Should the parent-child relationship between [the parent] and [the child] be terminated based on the instruction for [that Question]?" Thus, all twenty questions were identical except for the reference to the parent, the child, and the applicable instruction.¹ In other words, rather than submitting questions that inquired directly as to the findings that must be made to support the Department's claims for terminating each parent-child relationship, the trial court asked the same question twenty times and varied the instructions in an attempt to direct each question to the findings that must be made in order to terminate each parent-child relationship.

By an eleven to one vote, the jury answered "yes" to all twenty questions. Based on the jury verdict, the trial court entered a judgment terminating the parent-child relationships of both Mother and Father as to each of the children. Mother and Father appeal.

STATEMENT OF POINTS ON APPEAL

The Department argues that Mother and Father did not preserve error concerning some of their specific complaints because those complaints were not included in their statement of points on appeal. See TEX. FAM.CODE ANN. § 263.405(b) (providing for filing of statement of points on appeal within 15 days of final order). We disagree.

The legislature's intent in enacting section 263.405(b) was to "provide a mechanism to reduce frivolous parental-termination appeals and to reduce postjudgment appellate delays in parental-termination appeals." In re S.J.G., 124 S.W.3d 237, 242 (Tex.App.-Fort Worth 2003, pet. denied). Requiring a statement of points on appeal within fifteen days of the final order allows the trial court to make a determination of whether the appeal is frivolous as required by section 263.405(d). Id. The purpose is not to create an additional preservation requirement for error that has already been preserved.

We conclude the statement of points on appeal required by section 263.405(b) is not jurisdictional and is not an additional requirement for preserving error in parental-rights termination cases. See In re W.J.H., 111 S.W.3d 707, 712-13 (Tex.App.-Fort Worth 2003, pet. denied). Thus Mother and Father have not waived or forfeited any issues by not including them in their statements of points on appeal.

LEGAL SUFFICIENCY OF THE EVIDENCE (AS TO TERMINATION OF MOTHER'S PARENTAL RIGHTS TO M.G.)

The trial court denied Mother's motion for directed verdict and motion for judgment notwithstanding the verdict raising the legal sufficiency of the evidence to support the termination of her parental rights to her youngest child, M.G. In issues twenty and twenty-one, Mother argues the evidence is legally. insufficient to support the termination of her parental rights to M.G. Mother argues that family code subsections 161.001(1)(D) and 161.001(1)(E) do not authorize termination based on evidence of Mother's conduct toward other children, but only on conduct toward the specific child at issue. On appeal Mother challenges the legal sufficiency of the evidence to support the endangerment finding,² arguing that M.G. was removed from her at the hospital just days after his birth and never lived with her in the home. We address this issue because, if sustained, Mother would be entitled to reversal and rendition of the Department's claim seeking to terminate her parental rights as to M.G. See Glover v. Tex. Gen. Indem. Co., 619 S.W.2d 400, 401 (Tex.1981) (per curiam); Exxon Corp. v. Breezevale Ltd., 82 S.W.3d 429, 438 (Tex.App.-Dallas 2002, pet. denied).

Involuntary termination of parental rights implicates fundamental constitutional rights. See Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In re G.M., 596 S.W.2d 846, 846 (Tex.1980). A trial court may order involuntary termination of parental rights if the factfinder finds by clear and convincing evidence (1) the parent has committed one of the enumerated statutory conditions, and (2) termination is in the best interest of the child. TEX. FAM.CODE ANN. § 161.001 (Vernon 2002). Each required finding must be based on clear and convincing evidence. Id. § 161.206(a). Clear and convincing evidence is "the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established." Id. § 101.007. This level of certainty is necessary to preserve the fundamental fairness in government-initiated proceedings that threaten to end a natural parent's desire for and right to companionship, care, custody, and management of his or her children. See Santosky v. Kramer, 455 U.S. 745, 756-59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). "A parent's interest in the accuracy and justice of the decision to terminate his or her parental status is, therefore, a commanding one." Id. (quoting Lassiter v. Dep't of Soc. Servs., 452 U.S. 18, 27, 101 S.Ct. 2153, 68 L.Ed.2d 640 (1981)).

When we review the legal sufficiency of the evidence in a parental-rights termination case, we determine whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the matter on which the Department bears the burden of proof. In re J.F.C., 96 S.W.3d 256, 265-66 (Tex. 2002); Wilson v. State, 116 S.W.3d 923, 928 (Tex.App.-Dallas 2003, no pet.). In a legal sufficiency review, we look at all the evidence in the light most favorable to the finding; we assume that the factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could do so; and we disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. In re J.F.C., 96 S.W.3d at 266. We do not, however, disregard undisputed evidence that does not support the finding. Id.

Here, the Department alleged grounds for termination under family code subsections 161.001(1)(D) (i.e. endangering conditions or surroundings) and 161.001(1)(E) (i.e. endangering conduct). See TEX. FAM.CODE ANN. §§ 161.001(1)(D), (E) (Vernon 2002). Subsection 161.001(1)(D) requires clear and convincing evidence that the parent "knowingly placed...