In re W.J.H.

• Citation: 111 S.W.3d 707
• Decision Date: 19 June 2003
• Docket Number: No. 2-02-343-CV.,2-02-343-CV.
• Parties: In the Interest of W.J.H., Jr., J.J.H., D.D.H., and D.N.H., Children.
• Court: Court of Appeals of Texas

111 S.W.3d 707

In the Interest of W.J.H., Jr., J.J.H., D.D.H., and D.N.H., Children.

No. 2-02-343-CV.

Court of Appeals of Texas, Fort Worth.

June 19, 2003.

Marc F. Gault, Fort Worth, for Appellant.

Tim Curry, Criminal Dist. Atty., Charles M. Mallin, Anne E. Swenson, David M. Curl, and Melissa Paschall, Asst. Dist. Attys., Fort Worth, for Appellee.

Panel B: DAUPHINOT, GARDNER and WALKER, JJ.

OPINION

LEE ANN DAUPHINOT, Justice.

Answering three special issues after trial, a jury found that (1) Appellant Evelyn D. knowingly placed or knowingly allowed W.J.H. Jr., J.J.H., D.D.H., and D.N.H. ("the children") to remain in conditions or surroundings that endangered their physical or emotional well-being; (2) Evelyn engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered the children's physical or emotional well-being; and (3) termination of the parent-child relationship would be in the children's best interest.¹ Based on the verdict, the trial court entered a judgment terminating Evelyn's parental rights over the children. We affirm the trial court's judgment.

Jury Charge

In her first point, Evelyn contends that "the trial court erred by including questions in the court's charge to the jury that applied to the four children collectively, and by failing to submit a separate set of questions for each individual child." In other words, Evelyn contends that the three special issues submitted to the jury should have been submitted separately for each child. Evelyn also points out in a footnote in her brief that the charge violated the broad-form submission requirement. We hold that the trial court erred by failing to submit to the jury a separate broad-form question regarding the termination of Evelyn's parental rights to each child.² That is, the jury should have been asked to separately determine whether the parent-child relationship between Evelyn and W.J.H., Jr. should be terminated, whether the parent-child relationship between Evelyn and J.J.H. should be terminated, whether the parent-child relationship between Evelyn and D.D.H. should be terminated, and whether the parent-child relationship between Evelyn and D.N.H. should be terminated.³ Evelyn, however, failed to preserve this error.

To preserve error in the jury charge, the complaining party must timely and plainly make the court aware of the complaint and get a ruling.⁴ The record does not show that Evelyn lodged any objection or request relating to the jury charge before the charge was submitted to the jury. In fact, Evelyn did not raise this complaint until she filed her motion for new trial. Thus, her objection was untimely.⁵ Additionally, Evelyn's trial counsel appears to have participated in the drafting of the jury charge and apparently agreed with it.⁶ Finally, Evelyn claimed fundamental error for the first time at oral argument; in her brief on appeal, Evelyn does not allege, argue, or cite any authority for the proposition that the all-for-one submission used below amounted to fundamental error.⁷ For all of these reasons, we hold that Evelyn failed to preserve the error in the jury charge. We overrule her first point.

Toxicology Results

In Evelyn's second point, she contends that "the trial court erred by admitting in evidence the results of toxicology tests performed on the children since the sponsoring testimony did not establish the required indicia of trustworthiness." Appellee Texas Department of Protective and Regulatory Services ("CPS") argues that we should not address this point because it did not appear in Evelyn's statement of points filed in the trial court under section 263.405(b) of the Texas Family Code.⁸ That section provides:

Not later than the 15th day after the date a final order is signed by the trial judge, a party intending to appeal the order must file with the trial court a statement of the point or points on which the party intends to appeal. The statement may be combined with a motion for a new trial.⁹

In involuntary termination cases, we are required to strictly construe the involuntary termination statutes in favor of the parent.¹⁰ Here, the State asks us to construe section 263.405(b) against the parent and hold that the parent's failure to present a particular point in her timely filed statement of intended points bars her from raising the point on appeal.

In construing section 263.405(b), this court has held that the provisions in the statute requiring an appellant to file a statement of the points on which she intends to appeal are not jurisdictional.¹¹ We have also held that "the failure to include a subject matter jurisdiction complaint in the statements of points on appeal does not deprive us of our jurisdiction to review the merits of the complaint" and that "appellants did not waive their right to complain about the trial court's lack of subject matter jurisdiction by failing to include the [points] in their statements of points on appeal."¹² We now extend those holdings to expressly hold that a party's failure to include a particular point or points in the statement of points filed under section 263.405(b) does not waive her right to raise such points on appeal, as long as she complies with the procedural requirement to file a statement of points and the appellee does not establish prejudice.¹³

CPS asks us to analogize the 263.405(b) requirements to those of Texas Rule of Appellate Procedure 34.6(c), governing partial reporter's records,¹⁴ citing a case in which this court held that strict compliance with rule 34.6(c) is necessary to preserve points for appellate review.¹⁵ But the Texas Supreme Court has expressly rejected the idea that strict compliance with that rule is necessary absent a showing of prejudice.¹⁶

We have previously stated that the purpose of section 263.405(b) "was to address post-judgment appellate delays, correct provisional inconsistencies, and provide a mechanism through which" the trial court can be compelled to timely set a case for trial.¹⁷ The purpose was not to constrict the appellate rights of parents. We therefore decline to impose a death penalty sanction for failing to raise a particular point in the statement of intended points when the legislature chose not to impose such a penalty and when the appellee cannot demonstrate prejudice. Barring an appellant from raising a point on appeal that did not appear in the statement of intended points filed in the trial court would be unfair, considering that the statement of intended points is due within fifteen days of the date the final order is signed, but the reporter's record is not due until sixty days after the judgment is signed.¹⁸ Such a bar would also appear to insulate all trial error occurring after the fifteen-day deadline except error involved in orders denying indigence claims or finding appeals frivolous.¹⁹ That is, with such a bar in place, it appears that a litigant could no longer appeal, for example, the denial of a timely filed motion for new trial unless it was filed and ruled upon before the statement of intended points was due. Such a result would be absurd.

In statutory construction, we presume the legislature intended a just and reasonable result.²⁰ We do not construe a statute in a manner that will lead to a foolish or absurd result when another alternative is available.²¹ We therefore hold that a point's absence from a statement of intended points filed in the trial court does not bar our consideration of the point on appeal when an appellee does not demonstrate prejudice. CPS has not alleged or demonstrated that it was prejudiced by the omission of this point from Evelyn's statement of points; we shall therefore address it.

In her discussion of this point, Evelyn complains that toxicology reports showing that the children had cocaine in their systems are hearsay, that the sponsoring affidavits and the records themselves indicate a lack of trustworthiness, that there is no evidence that the tests conducted were the standard tests used to detect the presence of cocaine, that there is no evidence that the tests conducted were based on reliable scientific principles or methods, that there is no evidence that appropriate procedures were used when conducting the tests, and that there is no evidence establishing a chain of custody from the time the samples were taken until the time they were tested. She further complains that there is no evidence that the doctor named in the reports conducted the test or was qualified to do so, nor is there evidence that the doctor had personal knowledge of the tests or test results. Finally, she complains that the older three children were tested in anticipation of litigation, not for medical treatment.

At trial, Evelyn objected on the basis of relevancy, authenticity, hearsay, and "improper predicate." Thus, most of her complaints on appeal do not comport with her objections at trial.²² Only the hearsay objection was made at trial and on appeal. We need not address whether the trial court erred in overruling Evelyn's hearsay objection, however, because error in admitting evidence is generally harmless if the contested evidence is merely cumulative of properly admitted evidence.²³ Evidence that all four children had cocaine in their systems came in without objection at other points in the trial. Thus, even if the trial court did err by admitting the reports, such error was harmless. Consequently, we overrule Evelyn's second point.

Factual Sufficiency

In her third point, Evelyn contends that the evidence is factually insufficient to support the jury's three findings. We hold that the evidence is factually sufficient to support the jury's findings.

Standard of Review

A parent's rights to "the companionship, care, custody and management" of his or her children are constitutional interests "far more precious than any property right."²⁴ But these rights are not absolute. "Just as it is imperative for courts to recognize...