Antonio Campos v. State

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-05-00656-CV

Frances Boyd, Appellant

v.

Texas Department of Family and Protective Services, Appellee

FROM THE DISTRICT COURT OF HAYS COUNTY, 274TH JUDICIAL DISTRICT NO. 2003-0606, HONORABLE RONALD G. CARR, JUDGE PRESIDING

MEMORANDUM OPINION

Following a jury trial, the trial court signed an order terminating the parental rights

of appellant Frances Boyd to her son, C.B. Boyd appeals, complaining that the trial court erred in

overruling her motion to transfer venue and admitting evidence that Boyd had been investigated

earlier by the Department. We affirm the order of termination.

Background

Boyd does not contest the sufficiency of the evidence supporting the jury’s verdict.

Therefore, only a brief recitation of the facts is necessary. C.B. was born in June 1999, and was

removed from Boyd’s custody by the Department in April 2003, when he was almost four years old.

John Matthew Boyd is the child’s father, and at the time of trial, had relinquished his parental rights

to C.B. The Department had been involved with Boyd and her children since 1993, receiving

approximately eight referrals between April 1993 and April 2002 alleging neglectful supervision, emotional and physical abuse, and physical neglect.1 In July 1998, Adult Protective Services

received a referral alleging that Boyd was exploiting and physically neglecting her mother; only the

exploitation allegation was validated.

The Department took custody of C.B. in April 2003 after receiving a referral alleging

physical abuse, neglectful supervision, and physical neglect of C.B. The referral came from a

community shelter in New Braunfels, where Boyd had gone seeking assistance. The referral stated

that Boyd appeared “manic and delusional,” and that C.B. was unkempt, constantly crying, and

appeared to be developmentally delayed. When the Department arrived to investigate, Boyd was

angry and unfocused. She denied having a mental illness and said she avoided going out in public

because she feared someone would make a report against her. She thought this referral had been

made because she is Christian and “had been ‘praying a lot lately.’” When the caseworker attempted

to discuss the shelter’s allegations, Boyd said she and C.B. were leaving and began to walk away.

Law enforcement had to escort her back to the Department caseworker, and Boyd became irate and

disoriented and eventually had to be restrained by the police officers.

The Department prepared a service plan requiring Boyd to participate in parenting

classes, individual therapy, and anger management classes, undergo a drug and alcohol assessment,

obtain and provide proof of stable employment and suitable housing, allow the Department to make

home visits, and keep the Department informed of her address and phone number. Boyd completed

the parenting classes, psychological evaluations, and drug and alcohol assessment, but she did not

complete individual therapy or anger management or maintain or provide proof of employment or

1 Boyd has four older daughters who live with their father and were not part of this case.

2 housing. Witnesses testified that C.B. did not appear to have bonded with Boyd, and C.B.’s therapist

testified that C.B. had improved in foster care, but that he probably would need additional therapy.

He believed C.B. had improved because of the stability of his foster placement but would regress if

returned to an unstable environment with Boyd. C.B.’s therapist, caseworker, and guardian ad litem

all testified that C.B. was doing well in foster care and that being returned to Boyd’s care would be

detrimental to the child. The jury returned a verdict finding that Boyd’s parental rights should be

terminated, and the trial court signed an order of termination. It is from this order that Boyd appeals,

complaining that the trial court should have transferred the case to Taylor County and that the court

committed reversible error by admitting hearsay into evidence.

Motion to Transfer

In her first point of error, Boyd argues that the trial court erred in refusing to transfer

this case from Hays County, where the Department filed its petition, to Taylor County. She argues

that because she filed a proper motion asserting continuing jurisdiction in Taylor County and no

controverting affidavits were filed, the transfer was mandatory. We disagree.

The Department filed its petition in Hays County on April 23, 2003, alleging that it

believed no other court had continuing, exclusive jurisdiction over C.B. The petition alleged that

Boyd had a New Braunfels address, but the accompanying affidavit, sworn to by caseworker Tara

Hopkins and describing the facts that led the Department to believe that removal was in C.B.’s best

interest, gave a San Marcos address. According to the affidavit, Boyd told someone at the shelter

that she and C.B. were living out of Boyd’s car. When interviewed by the Department, however,

Boyd said she was not homeless. She made inconsistent statements about her residence, saying that

3 she lived in Abilene and was going back; that her mother was sick in Abilene and Boyd was going

there to help care for her; that Boyd was going to New Braunfels to stay with friends; and that she

was going to stay in San Marcos, where a legal advocate was going to help her regain custody of her

eleven-year-old daughter.

On May 9, a show-cause hearing was held. Boyd appeared in person and was not

represented by counsel. It was discussed that Boyd had not yet been served with the Department’s

petition. The Department explained that it attempted service first at the New Braunfels address Boyd

had provided but was unsuccessful because she had moved. When Boyd informed the Department

that she had an Abilene address, the Department filed an amended petition requesting service in

Abilene, but Boyd then called to say she had moved to Cedar Park. There was a discussion at the

hearing that a constable was supposed to be serving Boyd with citation that day. The trial court

explained to Boyd that she could continue with the hearing, in which case the court would enter

temporary orders, or that the hearing could be reset for two weeks “to give you time to be served and

prepare for a hearing and hire a lawyer” or have one appointed. Boyd said she wanted to go forward

with the hearing, explaining that she had already tried unsuccessfully to get an attorney through a

legal aid office. The record does not reflect when, if ever, Boyd was finally served with citation; she

asserts that her attorney was appointed on May 21, and the Department does not contest that date.

On June 12, 2003, Boyd’s appointed attorney filed a motion to transfer, stating that

Taylor County had continuing, exclusive jurisdiction over C.B. “as a result of prior proceedings” and

that the cause should be transferred there. The next day, a status hearing was held before an

associate judge, and Boyd sought a ruling on her motion to transfer. The Department asserted that

4 jurisdiction should remain in Hays County, and the child’s attorney ad litem objected to the transfer,

stating that it was not in C.B.’s best interest. Later in the hearing, the trial court stated that there was

continuing jurisdiction in Taylor County, but that it would carry the motion to transfer forward,

saying, “I think where the case ends up depends on how things develop in the case.” At that point,

the attorney ad litem said, “I would like to make a formal objection to any discussion or proceedings

on the motion,” asserting that “all we’ve had is an oral motion, which is not contemplated under

155.204.” The court informed the attorney ad litem that a written motion had been filed, and

although the motion stated that it had been served on all parties, the ad litem said he had not been

served with and was unaware of the written motion. The ad litem said, “We had no opportunity to

write a controverting affidavit. And without specific knowledge right now of when the petition was

filed, it may very well not even be timely filed by the 12th. And if so, I lodge that objection.” The

court said it would revisit the issue in September.

Boyd immediately filed an appeal of the associate judge’s denial of the transfer,

seeking review by the trial court. C.B.’s attorney ad litem filed an objection, stating that Boyd had

not served him with the motion and arguing that due to the lack of service and notice, there was no

valid motion for the associate judge to consider and, therefore, no valid ruling for Boyd to appeal.

The ad litem also argued that the motion was untimely because it was filed more than twenty days

after the petition was filed, that no notice was provided that the motion would be heard, and that the

child and his attorney ad litem were not given sufficient time to file a controverting affidavit.

No hearing was held on Boyd’s appeal, and the motion to transfer was not raised

again until a February 2004 hearing on Boyd’s attorney’s motion to withdraw, when the issue of a

5 transfer was briefly mentioned. At that hearing, John Boyd was asked if he intended to hire an

attorney. Rather than answering the question, Mr. Boyd stated that he wanted to file a motion to

transfer, and the trial court said, “That’s not the question. The question to you, sir, do you intend

to hire a lawyer?” Mr. Boyd explained that he and Boyd had reconciled after a separation and that

he intended to hire an attorney to represent both of them. Later in that hearing, Boyd mentioned the

transfer issue, but the trial court stopped her, returning to the issue of whether the Boyds were going

to hire an attorney or needed appointed counsel. The court gave the Boyds forty-five days to hire

an attorney; when neither party hired a lawyer, a new attorney was appointed to represent Boyd.

On June 12, 2004, one year after Boyd’s motion to transfer was filed, Boyd’s attorney

filed a “motion to enter order,” stating that the June 2003 motion to transfer was timely filed because

Boyd was never served with citation. The motion also asserted that because no controverting

affidavits had been filed, transfer was mandatory under section 155.204 of the family code. The

motion recited that the motion was served on the Department and C.B.’s attorney ad litem, but did

not state the date on which the motion was mailed. A hearing on the motion was set for

July 22, 2004. In that very brief hearing, Boyd’s attorney introduced himself and stated, “We filed

a Motion to Enter Order, and we have argued the Motion to Transfer should be granted and order

be entered. The Court has ruled that the Motion to Enter Order is denied and a subsequent motion

will be presented to the Court for its approval. And that’s all I have.” The attorney ad litem stated

that “in regards to [Boyd’s attorney’s] argument, in fact, the Attorney Ad Litem was never served

with any copy of a Motion to Transfer Venue.”

6 On appeal, Boyd argues that because no opposing affidavits were filed by C.B.’s

attorney ad litem or the Department, the transfer to Taylor County was mandatory. She argues that

the motion to transfer was timely because the record does not show that she was served with the

Department’s citation and petition. Boyd acknowledges that her participation in the May 9 hearing

could constitute notice, but argues that because of the magnitude of the constitutional rights

involved, we should consider her motion timely, counting its due date from the date she was

appointed counsel, May 21. Boyd further argues that the motion’s certificate of service “creat[ed]

a presumption of proper service” and that the attorney ad litem’s objection to her appeal from the

associate judge’s denial of the transfer “conceded actual notice.” Boyd further notes that although

the attorney ad litem objected to a lack of notice, the Department never raised such complaints.

Section 155.204 of the family code provides that if a motion to transfer is timely filed

and no controverting affidavits are timely filed in response, the trial court shall transfer the case

without a hearing. Tex. Fam. Code Ann. § 155.204(c) (West Supp. 2006). A motion to transfer is

timely if filed (1) on or before the first Monday following the twentieth day after service of citation

or notice of the suit or (2) before the hearing commences, whichever is sooner. Id. § 155.204(b).

A controverting affidavit must be filed on or before the first Monday following the twentieth day

after “the date of notice of a motion to transfer is served.” Id. § 155.204(d).

We recognize the weight of constitutional rights involved in this case. However, the

statute is clear that to invoke mandatory transfer provisions, a motion to transfer must be filed on the

first Monday following twenty days from service of citation or notice of the suit. Id. § 155.204(b).

There is no doubt that Boyd had notice of the suit on May 9, when she appeared and participated in

7 the hearing. Thus, the motion to transfer was due by June 2, 2003. See id. Because Boyd’s motion

was filed ten days late, it only raised the issue of a discretionary transfer, not a mandatory transfer.

See Bollard v. Berchelmann, 921 S.W.2d 861, 864-65 (Tex. App.—San Antonio 1996, orig.

proceeding); Garza v. Texas Dep’t of Human Servs., 757 S.W.2d 44, 47-48

(Tex. App.—San Antonio 1988, writ denied); see also Tex. Fam. Code Ann. § 155.202 (West 2002)

(governing discretionary transfers).

Boyd does not argue that the trial court would have abused its discretion in denying

her motion to transfer if the motion sought a discretionary transfer; she only asserts that the transfer

was mandatory under section 155.204. The Department asserts that the trial court did not err in

refusing to exercise its discretion to transfer the case. We agree.

The records from the pretrial hearings contain little information about why Taylor

County would have jurisdiction over this matter.2 At the show-cause hearing held in May 2003,

Boyd testified that she had family in Abilene and was living there. Boyd mentioned filing for

divorce in Taylor County, but then said “it hasn’t been final. I have to reapply, in other words.” The

2 Evidence from the trial on the merits showed that C.B.’s paternity was established in a January 2000 order out of the 326th District Court of Taylor County, which found that John Boyd was the child’s father. The Boyds were married in May 2000. Generally, once a court acquires continuing, exclusive jurisdiction over a child by issuing a final order, see Tex. Fam. Code Ann. § 155.001(a) (West 2002), that court may continue to exercise jurisdiction over matters related to the child. Id. § 155.003(a) (West 2002). However, a court loses continuing, exclusive jurisdiction if the parents remarry after a divorce but then file a new suit for divorce and child custody in a different court. Id. § 155.004(a)(2) (West 2002). This case presents a more unusual situation in which the parents were not married before the paternity proceeding took place but married afterwards. It is arguable that Taylor County’s continuing, exclusive jurisdiction arising out of its issuance of the paternity order was extinguished when the Boyds married. See id.; id. § 154.006(b) (West Supp. 2006) (providing that court orders related to child support, conservatorship, possession, or access generally terminate if obligor and obligee marry).

8 Department stated that it had attempted to serve Boyd with citation at the New Braunfels address she

first provided, then at the Abilene address she gave, and that she most recently told the Department

she was living in Cedar Park. A Department caseworker testified that one of Boyd’s daughters told

the Department that Boyd was homeless and “moving around constantly.” An employee for the

shelter from which C.B. was removed, which is located in San Marcos, testified that Boyd said she

and C.B. were homeless and living out of her car. She also testified that Boyd had sought services

from the San Marcos shelter six times in the past year and had gone to the affiliated Salvation Army

facility “several times.” The associate judge placed C.B. with his half-sisters and Boyd’s ex-

husband, who live in Hays County.

At the time of the June 2003 hearing, Boyd was living in Cedar Park and had a job

there as a caregiver for a health-care provider. She testified that before C.B.’s removal, she had been

in San Marcos “a couple of times” and had stayed at the shelter from which C.B. was removed once

in the past, before the incident that led to his removal. However, she also testified that she had an

apartment and was a substitute teacher in Abilene.3 Boyd testified that at the time of C.B.’s removal,

she was not living in her car, was in New Braunfels to visit her daughters, and was considering

giving up her apartment in Abilene. She testified that John Boyd was incarcerated in Abilene but

had previously lived and worked in New Braunfels. When asked where she thought C.B. would be

best placed during the pendency of the proceeding, she said that her first preference would be for him

to be placed with her and her next choice would be with a cousin who lives in San Antonio; the trial

3 A witness testified during the trial itself that she contacted Boyd’s apartment manager in Abilene and was told that Boyd had been evicted and did not have a house in Abilene.

9 court continued C.B.’s placement with his half-sisters and Boyd’s ex-husband. The court observed

that if it transferred the case, Boyd would have to start all over in Abilene, whereas she had obtained

a place to live and a good job in the Hays County area. The court also noted that Boyd had begun

to make progress in Hays County, had an excellent attorney in Hays County, and had evaluations and

services set up in Hays County.

Boyd’s motion to transfer was not timely filed under section 155.204 of the family

code so as to call for a mandatory transfer. Based on this record, we cannot hold that the trial court

abused its discretion in refusing to transfer the case. We overrule Boyd’s first point of error.

Admission of Evidence

In her second point of error, Boyd argues that the trial court erred in admitting

evidence of earlier Department investigations because the Department’s reports contained

inadmissible hearsay in the form of allegations by people who were not Department employees.

We review a trial court’s decisions related to the admission or exclusion of evidence

for an abuse of discretion. Taylor v. Texas Dep’t of Protective & Regulatory Servs., 160 S.W.3d

641, 652 (Tex. App.—Austin 2005, pet. denied). Hearsay evidence is inadmissible unless it falls

within an exception provided by the rules or a statute. Tex. R. Evid. 802. However, a party waives

any complaint related to the admission of hearsay if she does not object. See id. A party who

preserves a complaint related to the admission of hearsay must show on appeal that the erroneous

admission “probably caused the rendition of an improper judgment.” Owens-Corning Fiberglas

Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); see Tex. R. App. P. 44.1(a)(1).

10 The Department called Tara Hopkins, a Department investigator, to testify about her

investigation into the referral the Department received in April 2003. Hopkins described the process

of receiving and investigating a referral, explaining that after receiving the referral, she looked up

Boyd’s history with the Department and with Adult Protective Services. Hopkins was asked, “And

when you went out to report [sic] this specific referral, what kind of information had you received?”

Boyd objected, asserting, “[T]hat calls for hearsay if she’s going to testify as to what the information

is.” The Department countered that the testimony was admissible under the hearsay exception set

out in rule 803(8)(b) as a matter observed and reported “pursuant to a duty imposed by law” and that

the report was a “record, report, statement, or data” compiled by a public agency. The trial court

overruled Boyd’s objection, and the Department asked, “What kind of report did you receive?”

Hopkins answered that the Department received a referral stating that Boyd and C.B. were staying

at the community shelter and alleging abuse, neglectful supervision, and physical neglect. She was

then asked, “What kind of report did you receive, and what was the basis of that report?” Boyd

objected “to any testimony about any kind of hearsay or about mental health,” and the trial court

sustained Boyd’s objection “to the extent of hearsay.”

The Department moved on to ask Hopkins “[w]hat other concerns were there,” and

Hopkins, reading from the April 2003 referral, answered that there were concerns that Boyd and C.B.

were living in a car and had only eaten bread for two days or two weeks; that Boyd yelled at C.B.

“all the time” and had dragged him on the floor and knocked him down; that C.B. had an

unexplained eye injury; that Boyd became defensive “when her parenting skills [were] questioned”;

that C.B. was unkempt, developmentally delayed, and largely unsupervised by Boyd; and that C.B.

11 was “constantly crying and having fits.” Later, Hopkins testified without objection that Boyd had

an “extensive history” with the Department. Hopkins also testified without objection about Boyd’s

history with the Department, such as when the Department received referrals, what children were

involved, how many referrals were received, the basis for some of the referrals, and about the referral

related to Boyd’s mother. On cross-examination, Hopkins was asked whether she had personal

knowledge about the veracity of the people making the earlier referrals, and she said she did not.

She also testified that she did not have personal knowledge or proof beyond the Department’s

computer records of what services were provided to or what requirements were placed on Boyd in

the past. On redirect, Hopkins was asked without objection what “other issues” arose during her

investigation, and she explained that she “learned that on two separate occasions [C.B.] was left

unsupervised in a hot car for lengths of time.”

The next witness called was Leslie Ontiveros, a supervisor with the Department who,

along with Hopkins, interviewed Boyd about the 2003 referral. When the Department asked what

information was provided in the referral, Boyd objected, “I’m going to object to hearsay, if she’s

going to respond based on what someone has told her,” and the Department responded that “under

803(8)(b) this is certainly a matter of—this is a matter that is observed pursuant to a duty to report,

and it is therefore an exception to the hearsay rule.” The trial court overruled Boyd’s objection, and

Ontiveros testified that the report alleged that Boyd was “constantly yelling and spanking” C.B., had

dragged him on the floor and knocked him down, and was unable to explain an injury under his eye.

Ontiveros further stated that the referral alleged that Boyd and her son were living out of their car,

that C.B. was developmentally delayed and was allowed to run around unsupervised, and that Boyd

12 said she and C.B. had only had bread for the last two weeks. Ontiveros testified that when she

received the referral, she reviewed Boyd’s history with the Department and then went with Hopkins

to investigate. After describing her interview with Boyd, Ontiveros was asked without objection

whether she “had a referral from—there was a prior referral in April of 2002 concerning Ms. Boyd

out of Abilene”; Ontiveros said that was correct. The Department then asked whether the earlier

referral “was alleging basically the same type things,” and Ontiveros answered, “Yes, that’s correct.”

When the Department asked “what kind of things were alleged in that specific referral,” Boyd

objected that it was cumulative and had already been testified to, and the trial court sustained the

objection. On cross-examination, Boyd asked Ontiveros a series of questions about whether

Ontiveros spoke to any of the people who gathered information related to the earlier referrals or

whether she had personal knowledge about the allegations made in the earlier referrals. On redirect,

Ontiveros testified without objection that she asked Boyd about earlier referrals and her “extensive

history” with the Department but that Boyd refused to discuss those matters.

On appeal, Boyd complains that the trial court erred in allowing Hopkins to “describe

previous reports” made to the Department about Boyd, asserting that she raised a hearsay objection

but was overruled. However, the testimony to which Boyd directs us and the objections she raised

were related to questions about the April 2003 referral that led to C.B.’s removal, not to questions

related to older referrals. When Hopkins testified about Boyd’s history with the Department, Boyd

did not raise hearsay objections—she raised that objection only twice, in reference to questions asked

of Hopkins and Ontiveros about the allegations made in the April 2003 referral. Thus, Boyd has not

preserved her complaint on appeal. See Tex. R. Evid. 802.

13 Furthermore, Boyd does not complain on appeal about Ontiveros’s testimony, and

at trial, she objected only to Hopkins’s and Ontiveros’s testimony about the April 2003 allegations,

which were also testified to by Valerie Schultz, the director of social services at the community

shelter who made the report to the Department. Schultz testified in detail about the basis of her

report and about her observations of Boyd’s and C.B.’s behavior on the day she made the referral.

Because Schultz’s testimony provided the same or similar evidence as the objected-to testimony and

because Boyd does not assert on appeal that Ontiveros’s testimony was erroneously admitted, any

error in the admission of Hopkins’s testimony is waived. See Volkswagen of Am., Inc. v. Ramirez,

159 S.W.3d 897, 907 (Tex. 2004). Finally, even if we assume that Boyd made a proper complaint

concerning testimony about past referrals and that such testimony was inadmissible, when we view

the entire record, we hold that Boyd has not shown that the testimony probably caused the rendition

of an improper judgment. Tex. R. App. P. 44.1(a)(1); Malone, 972 S.W.2d at 43. We overrule

Boyd’s second point of error.

Conclusion

Having overruled both of Boyd’s complaints on appeal, we affirm the trial court’s

order of termination.

__________________________________________

David Puryear, Justice

Before Chief Justice Law, Justices Patterson and Puryear

Affirmed

Filed: July 20, 2007