in the Interest of N.A.L. and N.R.L.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00159-CV

IN THE INTEREST OF N.A.L. and N.R.L., Children

From the 83rd Judicial District Court, Val Verde County, Texas
Trial Court No. 29248
Honorable Sergio J. Gonzalez, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Marialyn Barnard, Justice
Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice

Delivered and Filed: August 21, 2013

AFFIRMED

This is an appeal from a trial court’s order terminating appellant R.R.J.’s parental rights to

N.A.L. and N.R.L., minor children. 1 R.R.J. does not challenge the legal and factual sufficiency of

the evidence supporting termination. Rather, R.R.J. contends the trial court erred in terminating

her parental rights because multiple defects in the jury charge and final termination order denied

her due process and a fair trial. We affirm the trial court’s judgment.

BACKGROUND

A detailed rendition of the facts in this case is unnecessary for the disposition of the issues

on appeal. We provide a brief procedural history for context.

1
To protect the privacy of the parties in this case, we identify the children and the children’s mother by their initials
only. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2012).
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The appellate record shows R.R.J. has an extended history with the Texas Department of

Family and Protective Services (“the Department”). R.R.J. has been actively under investigation

or receiving services from the Department since 2007. The referrals to the Department include

claims of negligent supervision and physical abuse and neglect.

In September 2011, following an incident where R.R.J. was hospitalized for drug overdose

and threats of suicide, the trial court granted the Department’s request for a temporary order

removing N.A.L. and N.R.L. from R.R.J’s custody and placing them in a foster home. In August

2012, after R.R.J. complied with the terms of a Service Plan, the trial court agreed to a monitored

return of N.A.L. and N.R.L. to R.R.J. to determine whether reunification could be achieved. A

few days later, R.R.J. was involved in an assault that required police intervention. R.R.J. withdrew

her commitment to work toward family reunification and moved the trial court to set a date for

jury trial on the issue of termination.

A jury trial was held on February 25 and 26, 2013. The record reflects that on February

26, the jury retired from the courtroom, an off-the-record hearing occurred. At the conclusion of

the hearing, the trial court queried: “I have got the Charge of the Court here. [Attorneys], any

objection to the Charge as it is presented to this Court?” All counsel, including R.R.J.’s counsel,

answered “No, Your Honor.” There is no indication in the record of competing charges, 2 nor is

2
In her brief, R.R.J. contends the final charge submitted to the jury was different than the charge the Department
allegedly submitted to her prior to the commencement of trial. R.R.J. contends the “original version” of the charge
set forth four separate questions: three questions requiring the jury to make specific findings on whether the
Department had presented sufficient evidence supporting the statutory termination grounds, and one question requiring
the jury to state whether termination of the parent-child relationship was in the best interest of the child. Although
R.R.J. attached this “original version” of the charge to her brief, this document is not found in the record, and therefore,
we cannot consider it in the disposition of this appeal. See Conquest v. Spencer, 331 S.W.3d 537, 538 n.1 (Tex.
App.—Dallas 2011, no pet.) (quoting Perry v. Kroger Stores, Store No. 119, 741 S.W.2d 533, 534 (Tex. App.—Dallas
1987, no writ)) (noting attachment of documents as exhibits or appendices to briefs is not formal inclusion in record
on appeal and, thus, documents cannot be considered).

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there any indication R.R.J. objected or requested questions, instructions, or definitions, orally or

in writing.

After the jury returned to the courtroom, the trial court proceeded to read the charge in full

as required. The charge, as read by the trial court, defines clear and convincing evidence and

explains the ramifications of termination. The court also instructed the jury that to terminate

R.R.J.’s parental rights, the Department must have proven by clear and convincing evidence that

R.R.J.: (1) knowingly placed or knowingly allowed the children to remain in conditions which

endangered the children’s physical or emotional well-being; (2) engaged in conduct or knowingly

placed the children with persons who engaged in conduct which endangers the children’s physical

or emotional well-being; or (3) failed to comply with the provisions of a court order necessary for

the parent to obtain the return of the child who has been in the Department’s permanent or

temporary managing conservatorship for not less than nine months as a result of the child’s

removal from the parent under Chapter 262 for the abuse or neglect of the child. 3

The charge also admonished the jury that to terminate R.R.J.’s parental rights, the

Department must have proven termination is in the children’s best interest. The charge, as read by

the court, provided multiple best interest factors for the jury to consider, including the nine Holley

factors and several statutory best interest factors from the Family Code. See Holley v. Adams, 544

S.W.2d 367, 372 (Tex. 1976) (providing nine, non-exclusive factors for consideration in

determining best interest of child); see also TEX. FAM. CODE § 263.307 (West 2008) (providing

laundry list of factors to consider in best interest analysis).The charge culminated with the

question: “Now, bearing in mind, the foregoing instructions and definitions, you will answer the

following question: Question number one: Should the parent-child relationship between [R.R.J.]

3
These are statutory grounds for termination under section 161.001(1)(D), (E) and (O) of the Texas Family Code.

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and [N.A.L. and N.R.L.] be terminated? Answer by selecting ‘Yes’ or ‘No.’” The record reflects

the jury unanimously answered “yes” to that question. The record does not reflect any objection

to the charge or that R.R.J. had any issue with the charge.

After the jury returned its verdict, the trial court noted it had reviewed the charge of the

court, finding it to be in proper form and “previously approved by the attorneys.” The trial court

signed the judgment of termination. Thereafter, R.R.J. filed a notice of appeal and a motion for

new trial. The trial court denied R.R.J.’s motion for new trial.

ANALYSIS

As noted above, R.R.J. does not challenge the sufficiency of the evidence supporting

termination. Rather, she claims there are multiple defects in the jury charge and final termination

order that denied her due process. The Department contends R.R.J. has failed to preserve her

complaints for our review.

Standard of Review

In deciding if a party has preserved error in the jury charge, we determine “whether the

party made the trial court aware of the complaint, timely and plainly, and obtained a ruling.” State

Dep’t. of Highways & Pub. Transp. v. Payne, 838 S.W.2d 235, 241–42 (Tex. 1992); In re

Stevenson, 27 S.W.3d 195, 201 (Tex. App.—San Antonio 2000, pet. denied). If we hold jury

charge error is preserved, we review such allegations under an abuse of discretion standard. Tex.

Dep’t of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); see In re Estate of Johnson, 340

S.W.3d 769, 786 (Tex. App.—San Antonio 2011, pet. denied). A trial court abuses its discretion

if it acts arbitrarily or unreasonably or without reference to guiding rules or principles. Downer v.

Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985); Johnson, 340 S.W.3d at 786.

For appellate court to reverse on the basis of charge error, the appellant must show the error was

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harmful. Johnson, 340 S.W.3d at 786; Tex. Disposal Sys. Landfill, Inc. v. Waste Mgmt. Holdings,

Inc., 219 S.W.3d 563, 580 (Tex. App.—Austin 2007, pet. denied).

Preservation of Jury Charge Error

Texas Rule of Civil Procedure 274 provides in part:

A party objecting to a [jury] charge must point out distinctly the objectionable
matter and the grounds of the objection. Any complaint as to a question, definition,
or instruction, on account of any defect, omission, or fault in pleading, is waived
unless specifically included in the objections.

TEX. R. CIV. P. 274; see also TEX. R. APP. P. 33.1 (noting for appellate review, there must be

specific and timely objection and ruling thereon). Courts have consistently upheld this

requirement of a timely and specific objection to a jury charge in order to preserve error. Payne,

838 S.W.2d at 241; Stevenson, 27 S.W.3d at 201. Furthermore, the Texas Supreme Court has held

the requirement of a timely and specific charge objection applies to termination cases. See In re

B.L.D., 113 S.W.3d 340, 349–50 (Tex. 2003).

In B.L.D., the supreme court held an appellate court should not review an unpreserved jury

charge complaint. Id. In explaining its ruling, the court stated:

Important prudential considerations underscore our rules on preservation.
Requiring parties to raise complaints at trial conserves judicial resources by giving
trial courts an opportunity to correct an error before an appeal proceeds. [Citation
omitted]. In addition, our preservation rules promote fairness among litigants. A
party “should not be permitted to waive, consent to, or neglect to complain about
an error at trial and then surprise his opponent on appeal by stating his complaint
for the first time.” [Citation omitted]. Moreover, we further the goal of accuracy in
judicial decision-making when lower courts have the opportunity to first consider
and rule on error. Not only do the parties have the opportunity to develop and refine
their arguments, but we have the benefit of other judicial review to focus and further
analyze the questions at issue.

Id. at 350. In In re C.P., this court followed this precedent, noting that in a termination case, the

“[f]ailure to object to any alleged error in the form of a jury charge at trial waives review of that

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complaint on appeal.” No. 04-03-00790-CV, 2004 WL 2346253, at *2 (Tex. App.—San Antonio

Oct. 20, 2004, no pet.) (mem. op.).

The record in this case shows R.R.J. did not object to the charge at any point during the

trial. The record reflects a conference was held off the record. R.R.J. did not object when she was

specifically given the opportunity to do so by the trial court, nor did she offer a competing charge

or written instructions. She also did not object when the charge was being read aloud to the jury,

or before the jury retired to deliberate.

R.R.J. argues her counsel had no knowledge of the charge and its contents until he reviewed

them after trial. However, the record shows he sat in court and heard the trial court read the charge

to the jury, including the complained-of broad-form submission.

R.R.J. also contends the Texas Rules of Civil Procedure and her complaints in her motion

for new trial cure her failure to object to the jury charge during trial. We disagree. Although

R.R.J. reads Texas Rule of Civil Procedure 272 as “[obviating]” the need for counsel to object, the

plain language of the rule contradicts her argument. Rule 272 provides several requirements

regarding the jury charge, including: (1) the charge shall be in writing, signed by the court, and

filed with the clerk; and (2) the charge must be submitted to the attorneys for their inspection, and

a reasonable time to examine the charge and present objections. TEX. R. CIV. P. 272 (emphasis

added). The rule also requires that any objections must be in writing or dictated to the court

reporter and must take place before the charge is read. Id. Importantly, the rule also states “[a]ll

objections not so presented shall be considered as waived.” Id. Therefore, because R.R.J. failed

to make a timely objection to the jury charge during trial and obtain a ruling, we hold she waived

her complaints on appeal. See TEX. R. APP. P. 33.1. Allowing appellate review of unpreserved

error would undermine the Legislature’s intent that cases terminating parental rights be

expeditiously resolved, thus “‘[p]romot[ing] the child’s interest in a final decision and thus
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placement in a safe and stable home.’” In re L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (quoting In

re B.L.D., 113 S.W.3d at 353; In re J.F.C., 96 S.W.3d 256, 304 (Tex. 2002)).

We also hold R.R.J. did not preserve error by raising the alleged jury charge error in her

motion for new trial. As noted above, the rules require an objection to the charge before it is read

to the jury. See TEX. R. CIV. P. 272; Gale v. Spriggs, 346 S.W.2d 620, 626 (Tex. Civ. App.—

Waco 1961, writ ref’d n.r.e.). Consequently, an objection to a jury charge in a motion for new

trial is untimely and does not preserve issues for review. Mitchell v. Bank of Am., N.A., 156 S.W.3d

622, 627–28 (Tex. App.—Dallas 2004, pet. denied); Gale, 346 S.W.2d at 626. Therefore, we hold

R.R.J. did not preserve any alleged charge error for our review.

Defects in Final Termination Order

Regarding R.R.J.’s complaints about the final termination order, we hold she preserved

error by raising the issue in her motion for new trial and filing a timely notice of appeal within

twenty days the order was signed. See TEX. FAM. CODE 263.405 (West. Supp. 2012) (noting

appeals of final order are governed by procedures for accelerated appeals); TEX. R. APP. P. 5.1,

26.1(b) (stating in accelerated appeals, notice of appeal must be filed within 20 days after judgment

or order is signed).

R.R.J. contends the final order of termination was defective because it failed to set forth a

proper basis for its findings. R.R.J. argues the jury did not render a verdict specifically as to any

statutory termination ground, but the order of termination noted three grounds had been proven by

clear and convincing evidence—the order noted the trial court found R.R.J.:

(1) knowingly placed or knowingly allowed the children to remain in conditions or
surroundings which endanger the physical or emotional well-being of the children;
(2) engaged in conduct or knowingly placed the children with persons who engaged
in conduct which endangers the physical or emotional well-being of the children;
and
(3) failed to comply with the provisions of a court order that specifically established
the actions necessary for the motion to obtain the return of the children who have
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been in the permanent or temporary managing conservatorship of the Department
of Family and Protective Services for not less than nine months as a result of the
children’s removal from the parent under Chapter 262 for the abuse or neglect of
the children.

R.R.J. contends the final termination order cannot be given legal effect and a new trial should be

conducted. We disagree.

In E.B., the court dealt with a similar issue where a jury charge used broad form questions,

and appellant argued the trial court rendered a defective decree of termination because it was

unclear upon what statutory grounds the jury had decided the issue of termination. See 802 S.W.2d

at 648. The court of appeals reversed and remanded the case. Id. However, the supreme court

reversed the court of appeals, holding the “controlling question” was whether the parent’s rights

should be terminated, not “what specific ground or grounds the jury relied on.” Id. at 649.

Similarly, R.R.J. claims the trial court’s termination order is defective because it presumes the

grounds of termination the jury agreed upon. However, we hold, based on supreme court

precedent, the controlling question is termination, not the specific ground(s) the jurors agreed

upon. See id.

In King v. Tex. Dept. of Protective and Regulatory Servs., No. 08-03-00100- CV, 2004 WL

1505703 (Tex. App.—El Paso July 2, 2004, no pet.) (mem. op.), the appellant mother, as in this

case, conceded best interest, but challenged the statutory termination grounds found by the trial

court. Id. at *6. Citing E.B., the court noted that “if multiple grounds for termination are alleged

and the trial court submitted the termination issue using a broad-form question asking the jury

whether the parent-child relationship should be terminated, the jury’s finding will be upheld on

any ground supporting the finding. Id. (citing E.B., 802 S.W.2d at 649). Therefore, to be

successful on appeal, an appellant must establish that the jury’s findings on all of the Department’s

pleaded grounds are unsupported by the evidence. Id.

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R.R.J. did not challenge the sufficiency of the evidence related to termination. Therefore,

we hold the trial court did not abuse its discretion in entering a judgment terminating R.R.J.’s

parental rights for conduct in violation of Family Code subsections 161.001(1)(D), (E), and (O). 4

Accordingly, we overrule R.R.J.’s second issue.

CONCLUSION

Based on the foregoing, we overrule all of R.R.J.’s issues and affirm the trial court’s

judgment.

Marialyn Barnard, Justice

4
These were the only statutory grounds defined in the jury charge.

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