In Re PEW

105 S.W.3d 771, 2003 WL 21108413
CourtCourt of Appeals of Texas
DecidedMay 13, 2003
Docket07-01-0260-CV
StatusPublished

This text of 105 S.W.3d 771 (In Re PEW) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re PEW, 105 S.W.3d 771, 2003 WL 21108413 (Tex. Ct. App. 2003).

Opinion

105 S.W.3d 771 (2003)

In the Interest of P.E.W., II, K.M.W., and D.L.W., Children.

No. 07-01-0260-CV.

Court of Appeals of Texas, Amarillo.

May 13, 2003.

*773 Thomas L. Allensworth, Wichita Falls, for Appellee.

Sarah R. Guidry, Houston, and Duke Hooten, Austin, Texas Department of Protective and Regulatory Services, Special Litigation, Mike Baskerville, Vernon, for Appellee.

Before QUINN and REAVIS, JJ., and BOYD, S.J.[1]

Opinion

BRIAN QUINN, Justice.

Caren Wininger (Caren) appeals from an order terminating the parental relationship between her and her three children, P.E.W., II, K.M.W., and D.L.W.[2] The children were seven years old and under at the time. Through three issues, she asserts that the 1) evidence was legally and factually insufficient to support the termination order and 2) trial court erred in allowing into evidence hearsay statements made by the children. We affirm the order of termination.

*774 Background

The children made subject to the termination order were those born to Caren and her ex-husband Paul Wininger, Sr. (Paul, Sr.). These were not her only children, however, for she had another with a prior husband. Her prior husband had custody of that child, and Caren was entitled to see him only during supervised visits. This situation arose after the child returned from a visit with Caren and Paul, Sr. During that visit it was determined that the child was sexually molested. Who molested the child was not determined. So, thereafter, Caren's visitation had to be supervised.

The allegations of sexual molestation were not limited to the child of her previous marriage, however. Paul, Sr. eventually pled guilty to criminal charges involving the sexual molestation of one of the three children made subject to the termination order now at issue. Thereafter, he voluntarily relinquished his parental rights to P.E.W., K.M.W., and D.L.W.

Unlike her husband, Caren fought the attempt by the State to terminate her parental relationship with the children. Nevertheless, her efforts were unsuccessful. The trial court found that termination was warranted because she 1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, see Tex. Fam.Code Ann. § 161.001(1)(D) (Vernon Supp.2003) (stating this to be a ground warranting termination), 2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children, see id. at § 161.001(E) (stating the same), and 3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children. See id. at § 161.001(0) (stating the same). So too did it conclude that termination would be in the best interests of the children. See id. at § 161.001(2) (stating that termination must also be in the best interests of the children). Thus, it entered an order terminating her parental relationship with the children.

Issue Three—Admissibility of the Children's Hearsay Statements

We initially address issue three since it affects the nature of the evidence we can consider when assessing the other issues. Via that issue, Caren argues that the trial court erred in admitting "hearsay statements by [her] children because such statements were not supported by `sufficient indications of the statement's reliability.'" We overrule the issue.

Standard of Review

Whether the trial court erred in admitting evidence depends upon whether it abused its discretion. In re K.S., 76 S.W.3d 36, 42 (Tex.App.-Amarillo 2002, no pet.). Furthermore, it abuses its discretion when the decision fails to comport with controlling rules and principles, id., or when the decision lacks evidentiary support in the record. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex.1998). Yet, should an evidentiary ruling constitute an abuse of discretion, the case will not be reversed unless the error is harmful, that is, unless it probably caused the rendition of an improper judgment. Id; see Tex.R.App. P. 44.1(a); see also Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 396 (Tex.1989). This normally obligates the complainant to show that the judgment turned on the particular evidence excluded or admitted. In re K.S., 76 S.W.3d at 42.

*775 Next, hearsay statements of a child 12 and under describing alleged abuse of the child are admissible in a suit affecting the parent/child relationship under certain circumstances. Among other things, the trial court must find that the time, content, and circumstances of the statements provide sufficient indications of reliability. Tex. Fam.Code Ann. § 104.006 (Vernon 2002).[3]

Application of Standard

First, Caren never describes, with particularity, the specific testimony she deemed objectionable. Instead, she simply states that the "trial court allowed Mrs. Flores and Ms. Griffin to say what [P.E.W.] told them and Ms. Ackley to say what [K.M.W.] told her." It is not our duty to search the reporter's record for evidence which may fall within the issue before us. Most Worshipful Prince Hall Grand Lodge v. Jackson, 732 S.W.2d 407, 412 (Tex.App.-Dallas 1987, writ ref'd n.r.e.); see Rendleman v. Clarke, 909 S.W.2d 56, 58 (Tex.App.-Houston [14th Dist.] 1995, writ dism'd) (stating that an appellate court has no duty to search a voluminous record without guidance from the appellant to determine whether an assertion of reversible error is valid). Because Caren, when explaining her issue, neither cited us to the particular evidence which she considered hearsay nor otherwise referenced the comments, she did not preserve her complaint about same.[4]

Second, assuming arguendo that 1) the issue had been preserved and 2) the evidence in question was that uttered by P.E.W. and K.M.W. describing Caren's own sexual molestation of the children and her knowledge of that committed by Paul Sr., we would nevertheless conclude that the trial court did not reversibly err in admitting it. With regard to that of P.E.W., the child stated that he knew the difference between truth and lies. One "get[s] busted" and sent to his room when he lies, according to the boy. So too did he state that one does not "get busted" when telling the truth, that he knew how to tell the truth, and that the truth is when "[y]ou don't lie anymore."

Also of note is the evidence indicating that many of P.E.W.'s statements regarding the sexual abuse he suffered were volunteered, while some resulted from questioning.

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Bluebook (online)
105 S.W.3d 771, 2003 WL 21108413, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-pew-texapp-2003.