IN THE
TENTH COURT OF APPEALS
No. 10-02-019-CV
IN THE INTEREST OF
B.G., E.H., AND J.M.H., CHILDREN
From the 19th District Court
McLennan County, Texas
Trial Court # 2000-1961-1
MEMORANDUM OPINION
This appeal arises from a termination suit concerning the parent-child relationships between Maria Gutierrez and her three children brought by the Texas Department of Protective and Regulatory Services under Chapter 161 of the Texas Family Code. Gutierrez brings two issues on appeal: 1) was it error for the court to admit into evidence prior court orders and the family service plan; and 2) was there legally and factually insufficient evidence to support the jury’s findings as to each child. We will affirm.
BACKGROUND FACTS
B.G. was born to Gutierrez and Luis Martinez on November 7, 1997. Five months later, when Gutierrez was seventeen years old, she began living with Eric Herrera, who was fifteen years old, in his parent’s home. E.H. was born to Gutierrez and Herrera on November 17, 1999.
On June 6, 2000, B.G. was injured and taken to Hillcrest Baptist Medical Center; she was comatose. Shortly after her arrival at Hillcrest she was transferred to Scott and White Hospital by lifeflight helicopter where she was admitted to the pediatric intensive care unit. B.G. began regaining consciousness prior to arriving at Scott and White. B.G. was diagnosed with a subdural hematoma; she also had multiple bruises, a black eye, and a bite mark. A CT scan showed the subdural hematoma and blood coming down between the two hemispheres of the brain. B.G. also suffered retinal hemorrhaging which is consistent with severe force being applied to the brain. The injuries were typical of those seen in shaken baby injuries and were, according to B.G.’s doctor, unquestionably the result of child abuse.
A few weeks after B.G. was injured, Gutierrez went back to jail on theft charges. Her probation was revoked because she did not report to her probation officer. On June 29, 2000, Herrera signed a confession admitting he caused B.G.’s injuries.
TDPRS was appointed temporary managing conservator of B.G. and E.H. on June 12, 2000. A family service plan was implemented on June 20, 2000 with the stated goal of family reunification. On October 13, 2000, J.M.H. was born to Gutierrez and Herrera and TDPRS was appointed temporary sole managing conservator. Herrera pled guilty to serious bodily injury of a child, on November 19, 2001.
On November 28, 2001, TDPRS filed a Second Amended Petition to terminate the parent-child relationships between Gutierrez and each of her three children, Herrera and his two children, and Martinez and his one child. By previous order the parent-child relationships of Martinez and B.G. and that of Herrera and E.H. and J.M.H. were terminated.
Because there must be legally and factually sufficient evidence of violation of at least one of the listed grounds in § 161.001 (1), and a finding that termination is in the best interest of the child, as per § 161.001 (2), we will begin our review with Gutierrez’s second issue, and then discuss her first issue if we find sufficient evidence to support the jury’s verdict to any of the grounds violated and that termination was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001 (1), (2) (Vernon 2002).
LEGAL AND FACTUAL SUFFICIENCY
In her second issue, Gutierrez challenges the legal and factual sufficiency of the evidence supporting grounds (D), (E), and (O), and that termination of the parent-child relationships between Gutierrez and B.G., E.H., and J.M.H. was in the best interest of each child. See Tex. Fam. Code Ann. § 161.001 (1)(D), (E), (O), (2).
LAW
In proceedings to terminate the parent-child relationship brought under Section 161.001 of the Family Code, the petitioner must establish two elements. First, petitioner must prove one or more acts or omissions enumerated under the first subsection of the statute. Second, petitioner must prove that termination of the parent-child relationship is in the best interest of the child. Tex. Fam. Code Ann. § 161.001 (1), (2); Richardson v. Green, 677 S.W.2d 497, 499 (Tex. 1984). The fact finder must find both elements are established by clear and convincing evidence, and proof of one element does not relieve the petitioner of the burden of proving the other. Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976); Wiley v. Spratlan, 543 S.W.2d 349, 351 (Tex. 1976).
To satisfy the first prong of the two-part test to terminate the parent-child relationship, only one of the grounds listed in section 161.001(1) of the Family Code has to be found by clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (1) (Vernon 2002); In the Interest of J.M.T., 39 S.W.3d 234, 237 (Tex. App.—Waco 1999, no pet.). The standards of review for legal and factual sufficiency, the burden of proof necessary to terminate a parent-child relationship, and the method for analysis of the evidence are detailed in prior opinions of this court. Id. at 238.; In the Interest of A.M.C., 2 S.W.3d 707, 711 (Tex. App.—Waco 1999, no pet.); see In the Interest of C.H., No. 00-0552, 2002 Tex. LEXIS 113, *23 (Tex. 2002) (publication status pending) (holding “that the appellate standard for reviewing termination findings is whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations”); see also Holley, 544 S.W.2d 367.
ANALYSIS
Based on our review of the record in light of the appropriate standards of review and burden of proof, we find there is legally and factually sufficient evidence to support the jury’s findings regarding ground (E) as it relates to each child, and that termination of the parent-child relationships between Gutierrez and B.G., E.H., and J.M.H. was in the best interest of each child. Thus, we overrule Gutierrez’s second issue as to ground (E) and the best interest findings. Having found the evidence supporting the jury’s verdict terminating the parent-child relationships between Gutierrez and her three children was legally and factually sufficient as to ground (E) and that termination was in the best interest of the children, we need not discuss her arguments regarding ground (D) or (O).
ADMISSION OF EVIDENCE
TDPRS pursued three grounds for termination under § 161.001(1). See Tex. Fam. Code Ann. § 161.001 (1) (Vernon 2002). Ground (O) provides for termination of the parent-child relationship if a parent failed to comply with the provisions of a court order that specifically established the actions necessary for the parent to obtain the return of the child. See Tex. Fam. Code Ann. § 161.001 (1)(O). TDPRS proffered the prior court orders and the family service plan as part of the evidence needed to prove the allegation that Gutierrez violated ground (O).
Under her first issue — that it was error to admit the prior court orders and family service plan — Gutierrez argues four sub-issues. Her first sub-issue argument concerns Rule of Evidence 605. Tex. R. Evid. 605 (Vernon 2002). Gutierrez asserts that admission of the court orders amounted to the judge testifying as a witness in the trial over which the judge presided, which is prohibited by Rule 605. Id. In her second sub-issue Gutierrez argues the trial court improperly commented on the weight of the evidence because the judge had signed the orders. In her third sub-issue she asserts the orders and family service plan were inadmissible because they were hearsay or contained hearsay. And in her fourth sub-issue Gutierrez argues admission of the orders and the family service plan violated her right to a jury trial.
Gutierrez further contends that because the judge had signed the orders, admission of the orders and family service plan “tainted” and “supplanted” the jury’s consideration of conflicting evidence as to each question submitted to the jury, and admission of that evidence probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1).
LAW
Rule 44.1 provides for the reversal of a judgment on appeal if we conclude the complained of error probably caused the rendition of an improper judgment. Tex. R. App. P. 44.1(a)(1). The party claiming an improper judgment was reached based on erroneously admitted evidence does not have to prove that “but for” the admission of the evidence, a different judgment would have resulted. See McCraw v. Maris, 828 S.W.2d 756, 758 (Tex. 1992). The complaining party is only required to show that the admission probably resulted in the rendition of an improper judgment. Id.
The Supreme Court reiterated the test is not “but for” and described a successful challenge as one requiring the appellant to show the case “turns on” the evidence that was erroneously admitted. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995). Thus, Gutierrez must demonstrate that DPRS’s case “turns on” the introduction of the court orders and family service plan that were allegedly admitted in error, such that the admission “probably” caused the rendition of an improper judgment. Id.; McCraw, 828 S.W.2d at 758; Tex. R. App. P. 44.1(a)(1).
ANALYSIS
This Court has previously ruled in an unpublished opinion that evidence of an order is admissible as proof of violation of ground (O). Even though the exhibits admitted go beyond the bare “orders” allegedly violated, we have already concluded that the evidence was legally and factually sufficient to support termination on ground (E). Tex. Fam. Code Ann. § 161.001 (1)(E) (Vernon 2002). Therefore, assuming without deciding the trial court erred in admitting the non-redacted orders and the family service plan in evidence, we cannot say that termination of Gutierrez’s parent-child relationships “turned on” the erroneous admission, or probably caused the rendition of an improper judgment. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753-54 (Tex. 1995); Tex. R. App. P. 44.1. We overrule Gutierrez’s first issue.
CONCLUSIONHaving overruled both of Gutierrez’s issues, we affirm the judgment.
TOM GRAY
Justice
Before Chief Justice Davis,
Justice Vance, and
Justice Gray
(Justice Vance concurring)
Affirmed
Opinion delivered and filed October 30, 2002
Do not publish
[CV06]