IN THE
TENTH COURT OF APPEALS
No. 10-11-00276-CV
IN THE INTEREST OF L.M., A.M., AND N.H., CHILDREN
From the 361st District Court
Brazos County, Texas
Trial Court No. 10-001380-CV-361
MEMORANDUM OPINION
L.S.K. appeals from a judgment that terminates her parental rights to her three
children, L.M., A.M., and N.H. TEX. FAM. CODE ANN. § 161.001 (West 2011). L.S.K.
complains that the trial court abused its discretion by admitting hearsay evidence of a
Texas Department of Family and Protective Services supervisor and by failing to
conduct a hearing pursuant to section 104.006 of the Family Code prior to admitting
hearsay testimony of the children. We affirm the judgment of the trial court.
The Texas Department of Family and Protective Services required L.S.K. to place
the children, L.M. and A.M., with a family member. After N.H.’s birth, N.H. was
placed with her siblings. The Department ultimately sought termination of L.S.K.’s
parental rights pursuant to section 161.001(D) & (E) of the Family Code.1 L.S.K.’s
parental rights were terminated pursuant to a jury’s findings supporting the
termination.
Admission of Evidence
L.S.K. complains in her first issue that the trial court erred by allowing a
supervisor of the Department to testify regarding the circumstances surrounding the
decision by the Department to remove the children from the possession of L.S.K. L.S.K.
complains that the testimony constituted hearsay and should have been excluded. 2 In
this appeal, L.S.K. does not challenge the sufficiency of the evidence to support the
judgment of termination, but contends that the improper testimony given by a
supervisor of the Department relating to the background of the Department’s
involvement with L.S.K. was both inadmissible and harmful.
Standard of Review
We review a trial court’s decision to admit or exclude evidence for an abuse of
discretion. Whirlpool Corp. v. Camacho, 298 S.W.3d 631, 638 (Tex. 2009). We uphold the
1 The parental rights of the fathers of L.M., A.M., and N.H. were also terminated; however, those
terminations were not appealed and are not before us.
2 To the degree that L.S.K.’s issue references Rule 403 of the Texas Rules of Evidence, we will not address
the merits of that issue because it was not raised in L.S.K.’s statement of points of error on appeal. At the
time the trial court rendered its final order, former section 263.405(i) of the Family Code provided that
“[t]he appellate court may not consider any issue that was not specifically presented to the trial court in a
timely filed statement of the points on which the party intends to appeal or in a statement combined with
a motion for new trial.” Act of May 12, 2005, 79th Leg., R.S., ch. 176, § 1, 2005 Tex. Gen. Laws 332, 332,
repealed by Act of May 5, 2011, 82nd Leg., R.S., ch. 75, § 5, 2011 Tex. Gen. Laws 348, 349.
In the Interest of L.M., A.M., and N.H. Page 2
trial court’s evidentiary ruling if the record contains any reasonable basis for it. Jelinek
v. Casas, 328 S.W.3d 526, 539 (Tex. 2010) (citing Bowie Mem'l Hosp. v. Wright, 79 S.W.3d
48, 51-52 (Tex. 2002) (per curiam)).
The Supervisor’s Testimony
The supervisor testified that the Department was involved with L.S.K. through
Family Based Safety Services (FBSS) based on several allegations of neglect and abuse of
the children, as well as issues in the home relating to unsanitary conditions, poor
hygiene, and domestic violence. Services were provided to L.S.K. for approximately six
weeks until L.S.K. relocated out of state with relatives. She returned to Texas after
approximately two months, when she was hospitalized following an altercation with
her boyfriend’s sister, with whom she was residing. L.S.K. was provided services again
through FBSS for approximately five months until another referral was received of
neglect and L.S.K.’s continued contact with the father of N.H., who was not supposed to
be around the children. Over this entire time, the children would be filthy and the
schools and day care would wash or provide clothing and aid with hygiene. The oldest
two children were not appropriately potty-trained for their ages, wearing pull-ups at
ages four and five which would often be soiled. The youngest child would have
diapers on that were soaked entirely through. The children were ultimately voluntarily
placed with L.S.K.’s father and step-mother. After this placement, L.S.K. reconciled
with N.H.’s father who assaulted her on at least two occasions within a two week span
In the Interest of L.M., A.M., and N.H. Page 3
approximately two months after the children were placed outside of L.S.K.’s care.
L.S.K. knew of N.H.’s father’s violent history and tendencies yet did not perceive that
the violence perpetrated against her was improper.
Analysis
We note that L.S.K. presents only one citation to case authority in support of her
position and limited references to the record in support of her position. L.S.K.’s sole
reference to case authority is to distinguish a case presented by the Department during
the trial. See Posner v. Dallas County Child Welfare Unit of Texas Dept. of Human Services,
784 S.W.2d 585, 587 (Tex. App.—Eastland 2009, pet. ref’d.). L.S.K.’s brief does not
specify the substance of the testimony she finds objectionable nor does she establish
how that evidence harmed her, i.e. probably caused the rendition of an improper
judgment. See TEX. R. APP. P. 44.1. The evidence relating to the reasons for the removal
were actually reiterated with greater specificity without objection during testimony
given by a FBSS caseworker and other witnesses, as well as by L.S.K. herself. The
general rule is that error in the admission of evidence is deemed harmless and is
waived if the objecting party subsequently permits the same or similar evidence to be
introduced without objection. Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907
(Tex. 2004). We overrule issue one.
In the Interest of L.M., A.M., and N.H. Page 4
Admission of Statement of Child
In her second issue, L.S.K. complains that the trial court erred by allowing the
Department’s supervisor and the guardian ad litem to testify regarding statements
made by L.M. without conducting hearings pursuant to section 104.006 of the Family
Code. See TEX. FAM. CODE ANN. § 104.006 (West 2011). Other than citing to section
104.006 and a general citation to the standard of review for abuse of discretion, L.S.K.
cites no case authority in support of this argument. Section 104.006 of the Family Code
sets forth requirements for the trial court to determine whether a child’s statement is
admissible through another witness in certain circumstances. See TEX. FAM. CODE ANN.
§ 104.006 (West 2011).
At trial, the objections by L.S.K. to the testimony were solely on the basis of
hearsay. Nothing in the record indicates that the trial court was ever requested to
conduct a hearing pursuant to section 104.006. In order to preserve this complaint for
appeal, L.S.K. was required to present her request to the trial court and to seek a ruling
on that request. Having failed to do so, this complaint was waived. See TEX. R. APP. P.
33.1(a). We overrule issue two.
Conclusion
Finding no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed April 4, 2012
[CV06]
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