Gloria Dunn v. Texas Department of Protective and Regulatory Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-98-00569-CV

Gloria Dunn, Appellant

Texas Department of Protective and Regulatory Services, Appellee

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 126TH JUDICIAL DISTRICT

NO. 97-01921, HONORABLE PAUL DAVIS, JUDGE PRESIDING

Appellant Gloria Dunn appeals from a decree terminating her parent-child relationship with her three children and appointing appellee Texas Department of Protective and Regulatory Services (the Department) permanent managing conservator. We will affirm the trial court's judgment.

BACKGROUND

Appellant married Michael Dunn in 1986. The couple had three children: N.J.D., born in June 1987; A.D., born in November 1988; and N.A.D., born in August 1994. On February 12, 1997, Child Protective Services ("CPS") received a referral that A.D. had made an outcry that her father had sexually abused her.⁽¹⁾

CPS investigator Drew Lizcano went to the Dunn home to interview A.D. While there, Lizcano spoke with Mr. Dunn on the phone and was verbally abused by him. After Mr. Dunn threatened to assault Lizcano, the CPS investigator asked Mrs. Dunn to bring the children to the CPS office where the two older children were interviewed separately.

CPS supervisor Randy Shell testified that while the children were being interviewed at the CPS office, Mrs. Dunn confided in him that she was afraid to go home and that Mr. Dunn had beaten her in the past. At trial Mrs. Dunn denied having said that Mr. Dunn had beaten her, and Mr. Dunn testified that Mrs. Dunn had only feared that he would hurt the CPS workers rather than her. Shell testified that a victim's counselor came in to speak to Mrs. Dunn about going to a battered women's shelter. Shell also testified that when Mr. Dunn arrived at the CPS office, he was very uncooperative and threatening. He cursed and paced, and several police officers arrived to frisk him for weapons. Shell stated that later, after Mr. Dunn had calmed down, Mr. and Mrs. Dunn spoke together privately, after which Mrs. Dunn told Shell that she was comfortable returning home with her husband.

The next morning, February 13, Mrs. Dunn questioned A.D., who made an outcry to her mother. A.D. confirmed that Mr. Dunn had sexually abused her. Mrs. Dunn testified that she first contacted the bishop of her church and then called Mr. Dunn's cousin in Bastrop, who offered to take care of the children. Mrs. Dunn left the children alone in the house to await the cousin. That evening Mrs. Dunn also called a child-abuse hotline that referred her call to CPS. Tony Garcia was the CPS investigator who contacted Mrs. Dunn. She confirmed to him A.D.'s allegations. Garcia testified that Mrs. Dunn indicated to him that she was afraid her husband knew or would find out where the children were and that the children would be in jeopardy. Garcia stated that he told Mrs. Dunn not to let Mr. Dunn have access to the children or know where they were and to call the sheriff or 911 if Mr. Dunn came around the children. Mr. Dunn, however, testified that Mrs. Dunn told him that the children were staying with his cousin.

The following day, Valentine's Day, Mrs. Dunn went to see the children at the cousin's house. Mrs. Dunn testified that she and the cousin again questioned A.D. about the abuse. The cousin testified by deposition that she and Mrs. Dunn both spoke with A.D. and that Mrs. Dunn confirmed that A.D.'s story about her abuse on the fourteenth was consistent with what she had said the day before. The cousin also testified that Mrs. Dunn left with her three children because the cousin advised her to take A.D. to CPS to have her examined. Mrs. Dunn later testified that she believed A.D. had been fed information, and that she did not like the way the cousin was "interrogating" A.D.

Mrs. Dunn did not take the children to the child protection agency or have A.D. examined. Instead, Mrs. Dunn took the children and returned home. Having received a report of Mrs. Dunn's referral from Garcia, Randy Shell and Drew Lizcano arrived at the Dunn residence in the early afternoon. Shell testified that Mrs. Dunn was very upset and crying. She again confirmed A.D.'s statements concerning the abuse. Shell warned Mrs. Dunn not to let Mr. Dunn have access to the children. Mrs. Dunn said that she was going to take the children to stay at the cousin's house for the weekend. When Mrs. Dunn went to the cousin's house, she found no one home and decided to take the children with her to pick up Mr. Dunn from work, despite the many admonitions to keep him from having any contact with the children.

On her way to pick up her husband, Mrs. Dunn stopped and called Shell from a pay phone and asked him what she should do. Shell testified that he again told Mrs. Dunn not to allow Mr. Dunn to have access to the children. He told Mrs. Dunn to call him back collect or to bring the children to his office. Nevertheless, despite Shell's warnings of the danger, Mrs. Dunn took the children with her, picked up Mr. Dunn, and they all returned home together.

When Mrs. Dunn did not call back or bring in the children, Shell and Lizcano went to Mr. Dunn's workplace and were told that Mr. Dunn had already left with Mrs. Dunn and the children. Shell testified that at that point he decided to remove the children because of Mrs. Dunn's failure to protect the children by exposing them to an alleged sexual abuser. Because of Mr. Dunn's behavior at the CPS office, Shell and Lizcano went to the police department to get assistance in removing the children. Several police officers and at least one police dog accompanied the CPS workers to the Dunn residence. When Shell told Mr. Dunn that he was removing the children, Mr. Dunn threatened to kill himself. Using a warrant for a traffic violation, the police arrested Mr. Dunn for his own protection. Shell testified that while he was at the house, Mrs. Dunn told him that she believed Mr. Dunn had abused A.D. because she herself had recently been raped by Mr. Dunn. At trial, Mrs. Dunn denied having made such a statement. From the time CPS removed the children, Mrs. Dunn began expressing doubt about the truthfulness of A.D. and her allegations. She continually stated her disbelief of the charges, never expressing or demonstrating support for A.D., and instead supported her husband.

The Department initiated its suit to terminate the rights of both parents. After attempts to reunite the family failed, the cause went to trial. The Dunns waived their right to a jury, and in March 1998, the case was tried to the court, which found that Mr. and Mrs. Dunn had both endangered the children as alleged and that termination was in the children's best interest. After Mrs. Dunn's motion for new trial was overruled, she brought appeal to this Court.⁽²⁾

DISCUSSION

In eight points of error, Mrs. Dunn contends that the evidence is legally and factually insufficient to support the trial court's findings supporting termination; that the evidence is factually insufficient to support the trial court's finding that the Department made all reasonable efforts to reunite the children with the family; and that the trial court erred in excluding the testimony of an undesignated expert as a rebuttal witness.

A court may terminate a parent-child relationship if it finds from clear and convincing evidence that: (1) the parent has engaged in any of the specific conduct enumerated in the Family Code as grounds for termination; and (2) termination is in the child's best interest. See Tex. Fam. Code Ann. § 161.001(1), (2) (West Supp. 2000); Texas Dep't of Human Servs. v. Boyd, 727 S.W.2d 531, 533 (Tex. 1987); Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); D.O. v. Texas Dep't of Human Servs., 851 S.W.2d 351, 352 (Tex. App.--Austin 1993, no writ). Here, the Department alleged and the trial court found that: (1) Mrs. Dunn knowingly placed or knowingly allowed the children to remain in conditions or surroundings that endangered their physical or emotional well-being, see Tex. Fam. Code Ann. § 161.001(1)(D); (2) Mrs. Dunn engaged in conduct, or knowingly placed her children with persons who engaged in conduct, that endangered their physical or emotional well-being, see id. § 161.001(1)(E); and (3) termination of her parental rights was in the children's best interest, see id. § 161.001(2).

Clear and convincing means 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 allegation sought to be established. See In re G.M., 596 S.W.2d 846, 847 (Tex. 1980). On appeal, the appellant may challenge both the legal and factual sufficiency of the evidence, and we review the finding in light of the clear and convincing burden of proof at trial. See Leal v. Texas Dep't of Protective & Regulatory Servs., No. 03-98-00516-CV, slip op. at 8 (Tex. App.--Austin, July 27, 2000, no pet. history).

In deciding a legal sufficiency challenge to an adverse finding on an issue on which the appellant did not have the burden of proof, we consider only the evidence and inferences tending to support the finding and disregard all evidence to the contrary. If more than a scintilla of probative evidence supports the finding, it must be upheld. See Garza v. Alviar, 395 S.W.2d 821, 823 (Tex 1965); King's Estate, 244 S.W.2d at 661. In determining a factual sufficiency challenge, we consider a neutral review of the evidence, both for and against the finding, and will set aside the judgment only if the proof of the fact is so obviously weak or the finding so contrary to the weight of the evidence as to be clearly wrong and unjust. See id., slip op. at 9 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Aviar, 395 S.W.2d 821, 823 (Tex. 1965)). We will not substitute our judgment for that of the trier of fact merely because we reach a different conclusion. See Westech Eng'g, Inc. v. Clearwater Constructors, Inc., 835 S.W.2d 190, 196 (Tex. App.--Austin 1992, no writ).

Our review of the record in this cause reveals acts of verbal, physical, and sexual abuse by Mr. Dunn. But it also contains clear and convincing evidence reflecting that both parents' actions created chaotic living conditions and that their conduct caused the children to live in a home described by A.D. as "filled with family violence." Mrs. Dunn knowingly placed her children in endangering conditions and allowed them to remain there; she knew of her husband's violent and predatory conduct and yet she chose to place her children with him in this unhealthy environment rather than remove them from the danger; she knowingly aligned herself with Mr. Dunn thereby failing to protect her children despite warnings; and she declined to take advantage of options extended to her that could enable her to remove the children from danger.

Best Interest of the Children

In her first two points of error, appellant complains that the evidence is legally and factually insufficient to support the trial court's finding that termination was in the children's best interest. Mrs. Dunn argues that only three witnesses were asked whether termination would be in the children's best interest, and of these three witnesses, only one answered in the affirmative. But the test for whether termination is in the children's best interest does not depend on how experts answer a global question. The Texas Supreme Court has enumerated numerous but not exclusive factors a court may consider for determining when termination is in a child's best interest:

(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse of the acts or omissions of the parent.

Holley, 544 S.W.2d at 372 (footnotes omitted). A trial court is not required in each case to consider all of these factors, and may consider other factors when appropriate. See id. The record clearly contains evidence of several of the Holley factors.⁽³⁾

Desires of the children

Christy Kuehn, an intake supervisor with Austin/Travis County MHMR Day Glo Children's Services performed intake evaluations on N.J.D. and A.D. in March 1997. Kuehn testified that both children expressed a desire to live with their mother but not their father. A.D.'s therapist, Sherry Montgomery, testified that A.D. initially told her that she wanted to live with her mother but not her father. Montgomery stated that later in therapy, A.D. told her that she wanted to see her father but that she was still afraid of him and had formulated plans to prevent his abusing her again if she returned to live with both parents. Psychologist David Poole conducted evaluations of the two older children, in which both children expressed a desire to return to their mother. Poole's evaluation of N.J.D. indicates that although the boy stated he was willing to return home even if his father were there, N.J.D. was still afraid of his father. In sum, the children had conflicting desires. They expressed the desire to return to Mrs. Dunn but were equivocal and fearful about ever living with Mr. Dunn. Nevertheless, Mrs. Dunn continued living with Mr. Dunn.

Children's needs

The evidence indicates that the children have special emotional and educational needs. Poole diagnosed N.J.D. and A.D. as suffering from environmentally induced post-traumatic stress disorder ("PTSD"). Poole initially believed N.J.D. suffered from attention-deficit disorder, but after a second evaluation, Poole determined that the child's agitation was the result of his nervous condition. Poole recommended that the children be placed in an environment in which they felt secure and safe and in which they would have a settled routine and receive pro-active nurturing and reassurance. In addition, N.J.D. has a learning disability and expressive language problems stemming at least partially from the fact that he had been deaf for a period. Finally, the record indicates that A.D. had behavioral problems in school and was suspended at the time the children were removed from their home.

Mrs. Dunn's parental abilities

Mrs. Dunn was largely responsible for taking care of the children, who seemed physically healthy. However, Mr. Dunn testified that the deafness that had contributed to N.J.D.'s speech problems resulted from fluid build up in his ear that the parents chose not to treat with medical care. Appellant had allowed the children to miss a substantial amount of school, contributing to their frequent truancy. Also, A.D.'s former principal testified that A.D. had been suspended not only because of her bad and aggressive behavior but in an attempt to force the parents to meet with school officials. The principal testified that Mrs. Dunn was hostile to their efforts to help A.D. with her serious behavior problems and would tell A.D. things that undermined the school's authority with the child. Mrs. Dunn was belligerent to school officials and refused to allow them to refer A.D. for assistance. Christy Kuehn testified that Mrs. Dunn recognized the need to protect her children but that Mrs. Dunn refused to acknowledge the sexual abuse of her daughter. Randy Shell testified that Mrs. Dunn initially seemed capable of being protective but that she chose to return the children to Mr. Dunn despite having been told repeatedly for their safety not to allow him access. Mrs. Dunn admitted to leaving all the children unsupervised for some time while awaiting Mr. Dunn's cousin on February 13 and also admitted that she sometimes left the two older children--ages eight and nine at the time of removal--home alone after school.

Mrs. Dunn's conduct during her supervised visits with the children added to their anguish. The evidence reflects that Mrs. Dunn would sometimes have loud, angry tantrums, screaming and arguing with CPS workers in front of the children to such an extent that the children would become visibly upset, once causing them to cry and crawl under a table. At the same time, Mrs. Dunn would not acknowledge that she was in any way responsible for the children's extreme nervous condition or agitation. She sometimes left visits early or skipped them altogether. Because Mrs. Dunn doubted the truth of A.D.'s allegations, she sided with her husband and did not believe the children needed protection against him. Mrs. Dunn's own therapist, Marcia Eyrich, admitted that Mrs. Dunn's disbelief of A.D.'s outcry was not an appropriate parental response. She testified that it is important for children to believe that their parents are protective of them. Mrs. Dunn's disbelief caused A.D. to suffer hurt, frustration, and anguish.

Parenting-assistance programs available to appellant

CPS set up a service plan with the goal of reuniting Mrs. Dunn and her children that included sessions at the Center for Battered Women, a psychological evaluation, and intake and child protective classes at Day Glo. Mrs. Dunn did not follow the plan. Although Mrs. Dunn went to the Center, she did not receive counseling or services because she denied that she was a victim of abuse. Mrs. Dunn also attended a psychological evaluation with Dr. Poole. She attended the recommended therapy for awhile but soon discontinued the sessions. Finally, Mrs. Dunn did an intake at Day Glo that indicated that she should receive individual counseling and attend protective parenting classes for mothers of sexually abused children. Mrs. Dunn only attended the first class. She testified that she quit going because the class participants were required to acknowledge the sexual abuse at the beginning of each session and because the counselor urged her to divorce Mr. Dunn. Mrs. Dunn testified that she chose instead to attend other parenting classes with her husband through Parents Anonymous where she did not have to deal with sexual abuse issues.

Stability of appellant's home

Both Mr. and Mrs. Dunn testified that the family had moved repeatedly. Between 1987 and the children's removal in 1997, the Dunns lived in fifteen different locations. In 1993 the family was homeless for a couple of months with the parents sleeping in a tent and the children staying with friends. The family later moved to a trailer located in Lockhart where the living conditions were so bad that Mrs. Dunn and the children left to stay with friends. At the time of removal, N.J.D. was in the fourth grade and had attended five different schools. A.D. was in the second grade and had attended four different schools. Mrs. Dunn expressed no future plan for a permanent situation for her and her children.

Emotional and physical danger

The record indicates that the children were placed in emotional and physical danger within their home. Evidence indicates that the children characterized the Dunn home and both their parents as violent. Dr. Poole testified that N.J.D. and A.D. appeared to have been terrorized and traumatized. Although he denied having physically or sexually abused the children, Mr. Dunn was a large man who admitted that he had a tendency to make exaggerated gestures when angry, and he admitted often yelling and cursing at the children and calling them derogatory names. Shell testified that Mrs. Dunn told him that she was afraid of her husband and his violent temper.

Appellant's acts or omissions

Despite Mr. Dunn's violent temper, Mrs. Dunn did not remove the children from the dangerous situation. Mrs. Dunn's therapist stated that the appropriate reaction to a child's sexual abuse outcry would be for the parent to believe the child, align with the child, and protect the child from the abuser. However, the record reflects that Mrs. Dunn told people that she thought A.D. was making up the story and she caused A.D. serious emotional distress by not believing her. In addition, Mrs. Dunn returned the children to Mr. Dunn after A.D. made her outcry and after CPS repeatedly directed her to keep the children away from him. When questioned about the sexual abuse at the trial, Mrs. Dunn testified that she still did not know what to believe and that in her opinion Mr. Dunn would be an appropriate care giver for the children. Finally, the record contains evidence that Mrs. Dunn remained committed to Mr. Dunn, rather than her children, throughout the proceedings. Mrs. Dunn testified that the CPS workers' urging her to separate from Mr. Dunn was the source of many of her arguments with them. She also testified that one of the reasons she decided not to pursue services with Day Glo was the fact that a Day Glo counselor urged her to divorce Mr. Dunn. She helped Mr. Dunn raise bail after he was arrested on sexual assault charges and continued living with him throughout the relevant time, even though she knew the children could not be returned to her in that environment. She attended sessions and met with Mr. Dunn's therapist, but she never met with the children's therapists or assisted in their treatment.

Excuse for appellant's acts/omissions

Mrs. Dunn testified that she was physically and sexually abused growing up. Marcia Eyrich testified that Mrs. Dunn was made to feel that the abuse she suffered was her own fault. Evidence also indicates that Mrs. Dunn suffers from post-traumatic stress disorder. Dr. Poole testified that like her children, Mrs. Dunn seemed to have been terrorized and traumatized and that PTSD can cause victims to retreat emotionally when faced with stressful situations. Eyrich testified that Mrs. Dunn's reaction to A.D.'s allegations was complicated by unresolved issues stemming from her own abuse. Even with counseling and medication, Mrs. Dunn was unwilling to take the necessary steps to protect herself or the children or to separate them from the situation. She never maintained a regular course of treatment for her own emotional problems, exhibiting an irregular pattern of treatment and voluntarily discontinuing helpful medication.

The record contains evidence from which the trial court could properly consider the children's desires and needs, Mrs. Dunn's parenting ability, her ability to benefit or not to benefit from assistance with her parenting, the lack of stability in appellant's home, the emotional and physical dangers confronting the children, and appellant's past omissions in exposing the children to a traumatic situation. We hold that the evidence is factually and legally sufficient for the trial court to have found by clear and convincing evidence that it was in the children's best interest to terminate appellant's parental rights. We overrule appellant's first and second points of error.

Surroundings that Endangered the Children

In her fifth and sixth points of error, Mrs. Dunn contends that the evidence was legally and factually insufficient for the trial court to find that she knowingly placed or knowingly allowed her children to be placed in conditions or surroundings that endangered their physical or emotional well-being. We disagree.

The supreme court has interpreted the term "endanger" for purposes of involuntary termination proceedings. "While we agree that 'endanger' means more than a threat of metaphysical injury or the possible ill effects of a less-than-ideal family environment, it is not necessary that the conduct be directed at the child or that the child actually suffers injury." Boyd, 727 S.W.2d at 533. This Court has held that abusive or violent conduct in a child's home can produce an environment that endangers the physical or emotional well-being of a child as contemplated by the termination statute. See D.O., 851 S.W.2d at 354-55.

Mrs. Dunn contends that termination of her rights was based solely on the single incident of February 14, 1997, when she allowed Mr. Dunn to have access to the children following A.D.'s outcry. But a careful review of the record reveals that the surroundings to which Mrs. Dunn exposed the children involved more dangers than sexual abuse alone. The record indicates that both of the older children characterized the Dunn home environment as violent, and the record reflects evidence of this violence. Dr. Poole testified that both children suffered from PTSD and that N.J.D.'s reactions were "very consistent with [Mrs. Dunn's] depiction, that this kid had been living in a situation that he had felt was terrorizing, out of control, threatening, overwhelmingly intimidating." Poole testified that the sexual abuse was a "fine point," and that his impression of the household was that it was full of "tumult and volatility and aggression and intimidation." In questioning Eyrich, the court indicated that it took Poole's statement to mean that the sexual abuse was symptomatic of an extremely stressful "super charged" environment that was "oppressively" larger than the abuse itself. Randy Shell testified that Mrs. Dunn told him that Mr. Dunn had beaten and raped her, although Mrs. Dunn later denied making the statement. The trial court, as the finder of fact in this case, is the exclusive judge of the facts proved, the credibility of the witnesses, and the weight to be given their testimony. See Benoit v. Wilson, 239 S.W.2d 792, 797 (Tex. 1951); K-Mart Corp. v. Pearson ex. rel. Ramos, 818 S.W.2d 410, 413 (Tex. App.--Houston [1st Dist.] 1991, no writ). We hold that the record contains clear and convincing evidence that is factually and legally sufficient to support the trial court's finding that Mrs. Dunn knowingly placed or knowingly allowed the children to be placed in conditions or surroundings that endangered their emotional or physical well-being. We overrule appellant's fifth and sixth points of error.

Much of the same evidence proving that Mrs. Dunn exposed the children to emotionally or physically hazardous surroundings under section 161.001(1)(D) also supports a finding that Mrs. Dunn engaged in conduct or at least knowingly placed the children with persons who engaged in conduct that endangered the children's well-being under 161.001(1)(E). Section 161.001 is phrased disjunctively and only requires the Department to establish by clear and convincing evidence that Mrs. Dunn had engaged in one of the enumerated acts of conduct. See Tex. Fam. Code Ann. § 161.001(1); Hann, 969 S.W.2d at 81 (appellate court must affirm judgment of trial court if there is sufficient evidence to support any one of numerous theories alleged under 161.001(1)). Nevertheless, we hold that the record contains clear and convincing evidence that is legally and factually sufficient to support the finding that Mrs. Dunn engaged in conduct or knowingly placed the children with persons who engaged in conduct that endangered their physical or emotional well-being. Either of these grounds alone supports the court's termination ruling. We overrule appellant's third and fourth points of error.

Reasonable Efforts to Reunite

In her seventh point of error, Mrs. Dunn contends that there is insufficient evidence to support the court's finding that the Department made all reasonable efforts, consistent with time and circumstances, to reunite the children with the family. Although the record does contain evidence of these efforts, Section 161.001 does not require that the court make this finding before ordering termination. See Tex. Fam. Code Ann. § 161.001; Jones v. Dallas County Child Welfare Unit, 761 S.W.2d 103, 109 (Tex. App.--Dallas 1988, writ denied) (citing Moreland v. State, 531 S.W.2d 229, 235 (Tex. Civ. App.--Houston [1st Dist.] 1975, no writ)). Thus, Mrs. Dunn cannot show that even a failure of proof probably caused rendition of an improper judgment or probably prevented her from properly presenting her case on appeal. See Tex. R. App. P. 44.1. We overrule appellant's seventh point of error.⁽⁴⁾

Exclusion of Karen Hutchins's testimony

In her eighth point of error, Mrs. Dunn contends that the trial court erred in excluding the testimony of Mr. Dunn's therapist Karen Hutchins.⁽⁵⁾

In general, the admission or exclusion of evidence is committed to the trial court's sound discretion. See City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). However, former Rule 215.5 of the Texas Rules of Civil Procedure mandated the exclusion of expert testimony when a party failed to respond to or supplement responses to discovery.⁽⁶⁾ See former Tex. R. Civ. P. 215.5 (West 1998). An exception existed when a party showed good cause for admitting the evidence despite the failure to respond. See id. The trial court had discretion in deciding whether a party established good cause. See Birnbaum v. Alliance of Am. Insurers, 994 S.W.2d 766, 781 (Tex. App.--Austin 1999, pet. denied); Dewitt v. Prudential Ins. Co. of Am., 717 S.W.2d 414, 417 (Tex. App.--Houston [14th Dist.] 1986, no writ). A trial court abuses its discretion when it acts in an unreasonable and arbitrary manner or without reference to any guiding rules or principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). This Court may not reverse for abuse of discretion merely because we disagree with the decision of the trial court. See id. at 242. A party seeking to reverse a judgment based on the admission or exclusion of evidence must show that the evidence was erroneously admitted or excluded and that the error probably caused rendition of an improper judgment. See City of Brownsville, 897 S.W.2d at 753; see also Tex. R. App. P. 44.1(a)(1).

Neither Mr. nor Mrs. Dunn designated Hutchins as an expert witness in response to the Department's discovery request. Mrs. Dunn argues that the Department designated, but did not call, Hutchins and therefore the Department would not have been unfairly surprised had she been allowed to testify. Mrs. Dunn believed that Mr. Dunn had designated Hutchins and contends that she should not be held accountable for his mistake. Mrs. Dunn contends that Hutchins's opinion regarding the best interest of the children would have affected the trial's outcome. We note the testimony was presented by bill of exceptions and the trial was to the court, not a jury trial. In the bill of exceptions, when asked whether she believed termination would be in the children's best interest, Hutchins opined only that termination was premature.

None of Mrs. Dunn's arguments has merit. She contends that the Department was not surprised by the expert. Under former Rule 215.5, lack of surprise, standing alone, did not constitute good cause.⁽⁷⁾ See Alvarado v. Farah Mfg. Co., 830 S.W.2d 911, 914 (Tex. 1992). We also reject Mrs. Dunn's argument that she is being held responsible for Mr. Dunn's failure to designate. Mrs. Dunn gives no explanation for her failure to designate Hutchins other than her assumption that Mr. Dunn would do so. This claim reduces to a claim that at best her failure was inadvertent. Like lack of surprise, inadvertence, standing alone, did not constitute good cause under 215.5. See id. Nor are we persuaded that Hutchins's opinion as to the children's best interest would have affected the trial's outcome. As we have previously noted, the best interest of the children is determined by looking at a number of factors. Mrs. Dunn has failed to show that exclusion of a single therapist's opinion that termination is "premature" probably led to the rendition of an improper judgment. See City of Brownsville, 897 S.W.2d at 753. Because Mrs. Dunn has failed to show either good cause for her failure to designate Hutchins or sufficient harm to constitute reversible error, we overrule Mrs. Dunn's eighth point of error.

CONCLUSION

We have determined that there is legally and factually sufficient evidence to support the findings that justify terminating appellant's parental rights under section 161.001 of the Family Code, that Mrs. Dunn has failed to demonstrate harm from the trial court's finding that the Department made all reasonable efforts to reunite the family, and that Mrs. Dunn has failed to show that the trial court erred in excluding Karen Hutchins's testimony. Having overruled Mrs. Dunn's points of error, we affirm the trial court's decree terminating her parental rights.

Marilyn Aboussie, Chief Justice

Before Chief Justice Aboussie, Justices B. A. Smith and Yeakel

Affirmed

Filed: September 14, 2000

Do Not Publish

1. The record is unclear regarding the source of the referral and to whom A.D. made the outcry.

2. Although Mrs. Dunn's brief lists Mr. Dunn as an appellant, Mr. Dunn has not perfected his appeal to this Court and is therefore not a party to this appeal.

3. Mrs. Dunn contends that there is no evidence that termination is in the best interest of N.A.D. While it is true that the record contains little direct evidence regarding her interest, we believe her best interest can be inferred from the direct evidence establishing her siblings' best interest in the same way a parent's abusive conduct directed toward one child can support termination as to other children. See Lucas v. Texas Dep't of Protective and Regulatory Servs., 949 S.W.2d 500, 503 (Tex. App.--Waco 1997, pet. denied); Director of the Dallas County Child Protective Servs. Unit of Tex. Dep't of Human Servs. v. Bowling, 833 S.W.2d 730, 732-33 (Tex. App.--Dallas 1992, no writ).

4. To the extent that "all reasonable efforts" includes the programs and services that CPS offered Mrs. Dunn, this issue is discussed in relation to the court's determination of the children's best interest.

5. This point of error states that Hutchins was a rebuttal witness. However, Mrs. Dunn makes no argument that Hutchins was a rebuttal witness, and the authorities she cites concern admission of evidence in general.

6. Rule 215.5 was amended and renumbered as Rule 193.6 effective January 1, 1999. Because this trial was governed by the old rules, we will decide this case under the pre-amendment version.

7. Under current Rule 193.6 a party may overcome the failure to respond by showing a lack of surprise and unfair prejudice. See Tex. R. Civ. P. 193.6(a)(2).

would not have been unfairly surprised had she been allowed to testify. Mrs. Dunn believed that Mr. Dunn had designated Hutchins and contends that she should not be held accountable for his mistake. Mrs. Dunn contends that Hutchins's opinion regarding the best interest of the children would have affected the trial's outcome. We note the testimony was presented by bill of exceptions and the trial was to the court, not a jury trial. In the bill of exceptions, when asked whether she believed termination would be in the children's best interest, Hutchins opined only that termination was premature.

Gloria Dunn v. Texas Department of Protective and Regulatory Services

Related Cases