Douglas Roy v. Texas Department of Protective and Regulatory Services

• Court: Court of Appeals of Texas
• Decided: October 24, 2001
• Docket: 12-01-00001-CV
• Status: Published

Opinion

NO. 12-01-00001-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

DOUGLAS ROY, § APPEAL FROM THE 321ST

APPELLANT

• § JUDICIAL DISTRICT COURT

TEXAS DEPARTMENT OF

PROTECTIVE AND REGULATORY

SERVICES,

APPELLEE § SMITH COUNTY, TEXAS

Douglas Roy ("Roy") appeals the trial court's order involuntarily terminating his parental rights as to his daughter, C.R. Roy raises four issues on appeal. We affirm.

Background

Roy was married to Deana Tester Pummill ("Deana"). While married, the two had a daughter, C.R. Roy and Deana were divorced on April 20, 1998. Deana was appointed as sole managing conservator of C.R. and Roy as possessory conservator pursuant to a standard visitation order. ⁽¹⁾

On July 2, 1999, following his visitation with C.R. at the Tyler Police Station, ⁽²⁾ Roy was prepared to return C.R. to Deana at that same location. However, suspecting that Deana and her husband, Bruce, had been drinking, Roy contacted the Department of Protective and Regulatory Services (the "State"). When Deana and Bruce arrived at the police station to pick up C.R., a State caseworker confronted the two. Although the police determined that neither was intoxicated, it was agreed that it would be safer for C.R. not to ride in the car with Deana and Bruce. Deana contacted her mother, who came to pick up C.R. Deana further signed a safety plan placing C.R. with her (Deana's) mother throughout the State's investigation. Deana's mother subsequently turned C.R. over to the State.

On August 3, 1999, the State filed its original petition seeking to terminate Deana's parent-child relationship with C.R. The State requested, and the trial court issued, emergency orders appointing the State as temporary sole managing conservator of C.R. ⁽³⁾ Subsequently, the State amended its original petition and included Roy in its termination proceedings. The case was tried before a jury. The jury determined that Roy had (1) engaged in conduct or knowingly placed C.R. with persons who engaged in conduct which endangered the physical or emotional well-being of the child; (2) that Roy failed to comply with the provision of a court order that specifically established the actions necessary for him to obtain the return of his daughter; ⁽⁴⁾ and (3) that terminating Roy's parental rights was in C.R.'s best interest. ⁽⁵⁾ On October 2, 2000, the trial court signed an order terminating Roy's parent-child relationship as to C.R.

On October 6, 2000, Roy filed a motion for new trial, which read as follows:

The Court should grant this Motion for New Trial on the basis of the following:

• The verdict, findings, and order of the Court are contrary to the law and the evidence.



• The evidence supporting the verdict, findings, and order is legally and factually insufficient [to] support the verdict.



• The verdict, findings, and order of the Court are against the great weight and preponderance of the evidence.

• Neither the findings, verdict, nor termination order are in the best interests of the children.

...

The granting of a new trial would not do injury to petitioners.

Discussion

Roy attacks the jury's finding that he violated section 161.001(1)(O) of the Texas Family Code and corresponding order by the trial court terminating his parent-child relationship with C.R. on such grounds. In his brief, Roy contends that the record is void of any evidence that Roy neglected or abused C.R. Roy further contends in the alternative that even if section 161.001(1)(O) is applicable to him, the statute is vague and unconstitutional. Construing Roy's issue liberally as a no-evidence point, we must first look to the record to determine if Roy preserved error.

As a prerequisite to presenting a complaint for appellate review, the record must show that the complaint was made to the trial court by a timely request, objection, or motion that stated the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. See Tex. R. App. P. 33.1(a)(1)(A); see also Wal-Mart Stores, Inc. v. McKenzie, 997 S.W.2d 278, 280 (Tex. 1999). Likewise, the Texas Rules of Civil Procedure require that each point relied upon in a motion for new trial be designated in such a way that the complaint can be clearly identified and understood by the trial court. See Tex. R. Civ. P. 321. Grounds of objections couched in general terms shall not be considered by the court. See Tex. R. Civ. P. 322. In the rule requiring a motion for new trial to specify each ground, the word "specify" means to mention or name in a specific or explicit manner; to tell or state precisely or in detail. See Tindall v. Tacconelly, 328 S.W.2d 909, 910 (Tex. Civ. App.-San Antonio 1959, writ ref'd. n.r.e.). Although Rule 1 of our Rules of Civil Procedure states that the rules are to be given a liberal interpretation, Rules 321 and 322 were deliberately adopted to serve a vital purpose. See Smith v. Brock, 514 S.W.2d 140, 142 (Tex. Civ. App.-Texarkana 1974, no writ).

In Ramey v. Collagen Corp., the Fourteenth Court of Appeals elaborated on this vital purpose:

The requirements of particularity for assignments of error in a motion for new trial are not only for the benefit of the appellate court. They are primarily for the benefit of the trial court. They are designed to perform the important function of not merely laying a predicate for an appeal, but of presenting to the trial judge each ruling or error complained of in such a way that he can clearly identify and understand it, so that he may be able to review all of them with more deliberate consideration than is practicable during trial, and will then have the first full and fair opportunity to correct the errors or grant a new trial if need be.

Ramey, 821 S.W.2d 208, 211 (Tex. App.-Houston [14th Dist.] 1991, writ denied), quoting Smith, 514 S.W.2d at 142. In Ramey, the Court ultimately held that error regarding factual sufficiency was not properly preserved. See Ramey, 821 S.W.2d at 211. In reaching its holding, the Court addressed the decision in Security Savings Ass'n v. Clifton, 755 S.W.2d 925 (Tex. App-Dallas 1988, no writ). In Clifton, the Court held that a general objection that all findings are against the great weight and preponderance of the evidence is sufficiently specific where the jury finds against the objecting party on every question submitted. See Clifton, 755 S.W.2d at 927 (emphasis original). The Ramey Court distinguished Clifton because in the case before it, the jury had not found against the appellant in every instance. See Ramey, 821 S.W.2d at 211. Given that the jury did not find against Roy on every question concerning him, we, too, distinguish Clifton from the case at hand. ⁽⁶⁾ Therefore, since the points raised by Roy in his motion for new trial, as such points relate to section 161.001(1)(O), amounted to little more than legal conclusions, and thus, were not sufficiently specific to present to the trial judge each ruling or error complained of in such a way that she could be expected to clearly identify and understand it. Roy's third issue is overruled.

Roy further contends that section 161.001(1)(O) is vague and unconstitutional. However, our review of the record demonstrates that Roy wholly failed to make reference to such an issue, at

trial, much less object to it. Thus, Roy has failed to preserve error, if any, on this issue. See Tex. R. App. P. 33.1(a)(1)(A). Roy's fourth issue is overruled.

Moreover, Roy has wholly failed to address in his brief the jury's finding that termination of the parent-child relationship was in C.R.'s best interest. In accordance with Texas Rule of Appellate Procedure 38.1(h), we only consider Roy's contentions that are specifically supported by clear and concise argument. See, e.g., Franklin, 961 S.W.2d at 711; Leyva, 960 S.W.2d at 734; McFarland, 932 S.W.2d at 647. Thus, we need not address the issue of whether termination was in C.R.'s best interest.

Roy also contends that the hearing on the termination of his parental rights was tried approximately ninety-eight days after the State's petition was filed in violation of Texas Family Code section 161.003(c). However, the State did not allege termination under section 161.003. Thus, the 180-day notice requirement set forth in that rule is inapplicable to termination proceedings pursuant to section 161.001, which contains no such restriction. Roy's first issue is overruled.

A court may affirm on any one of several possible grounds for termination of the parent-child relationship. See In re M.D.S., 1 S.W.3d 190, 199 (Tex. App-Amarillo 1999, no pet.). Since we have overruled Roy's issues concerning section 161.001(1)(O), and since Roy has waived the issue of best interest, we affirm on these grounds and need not address Roy's remaining issues.

The trial court's order terminating the parent-child relationship between Roy and C.R. is affirmed.

SAM GRIFFITH

Justice

Opinion delivered October 24, 2001.

Panel consisted of Davis, C.J., Worthen, J., and Griffith, J.

(DO NOT PUBLISH)

1.

Due to C.R.'s young age, a graduated visitation schedule was implemented until C.R. reached age three.

2.

A protective order issued against Roy required him to visit C.R. at the Tyler Police Department with an off-duty, armed Tyler police officer or a Smith County Sheriff's Deputy in attendance.

3.

See Tex. Fam. Code Ann. § 262.102 (Vernon Supp. 2001).

4.

See Tex. Fam. Code Ann. § 161.001(1)(O) (Vernon Supp. 2001).

5.

In addition to these findings, the jury also found that Roy did not knowingly place or knowingly allow C.R. to remain in conditions or surroundings which endangered her physical or emotional well being.

6.

In distinguishing the instant case from Clifton, we do not imply that we agree with the rule espoused therein. To the contrary, we believe that the rule set forth in Clifton, that a general objection that "all the findings are against the great weight and preponderance of the evidence" is sufficiently specific, contradicts the vital purpose of Rules 321 and 322 as set forth above. The language held sufficiently specific by the Clifton Court as well as the language employed by Roy in the instant case amount to little more than legal conclusions couched in an argumentative posture. The better approach regarding specificity is to require the movant to specifically support its contentions by clear and concise argument - point out which elements are unsupported by evidence or discuss why a finding is against the great weight of authority and cite legal authority in support of its position - as is required on appeal. See, e.g., Franklin v. Enserch, Inc., 961 S.W.2d 704, 711 (Tex. App.-Amarillo 1998, no pet.); Leyva v. Leyva, 960 S.W.2d 732, 734 (Tex. App.-El Paso 1997, no writ); McFarland v. Sanders, 932 S.W.2d 640, 647 (Tex. App.-Tyler 1996, no writ). Tolerating less serves to thwart the vital purpose underlying a motion for new trial.