in the Interest of A.J.H. AKA A.H., M.R.H. AKA M.H., I.E., Children

• Court: Court of Appeals of Texas
• Decided: December 9, 2014
• Docket: 07-14-00290-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-14-00290-CV ________________________

IN THE INTEREST OF A.J.H. AKA A.H., M.R.H. AKA M.H. AND I.E., CHILDREN

On Appeal from the 106th District Court Garza County, Texas Trial Court No. 13-03-06755; Honorable James L. Rex, Presiding

December 8, 2014

MEMORANDUM OPINION Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.

This is an accelerated appeal wherein Appellant, Kimberly, appeals the trial

court’s order terminating her parental rights to A.J.H. aka A.H., M.R.H. aka M.H. and

I.E.1 Kimberly asserts (1) the evidence is legally and factually insufficient to terminate

her parental rights because she completed the actions necessary to achieve

permanency pursuant to the Department’s requirements and (2) the trial court erred in

1 To protect the parents’ and children’s privacy, we refer to Kimberly and the children’s fathers by their first names and other interested parties by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2014). See also TEX. R. APP. P. 9.8(b). In addition, throughout the remainder of this memorandum opinion, provisions of the Texas Family Code will be cited as “section ___” and “§ ___.” The Department of Family and Protective Services will be referred to as “Department.” allowing Dr. Brenda Wilbanks to testify as to the recommendations in her report

because such testimony went beyond the scope of the purposes for which she was

retained by the Department and was substantially more prejudicial than probative. We

affirm.

BACKGROUND

In September 2007, the children were removed due to neglectful supervision by

Kimberly. A.J.H. and M.R.H. were placed with their grandparents, and I.E. was placed

in a foster home. After an adversary hearing, the trial court found there was sufficient

evidence of a continuing danger to the children’s physical health or safety and

remaining in the home was contrary to their welfare. A service plan was initiated with

the agreement of the children’s parents and the trial court ordered compliance. The

grandparents of A.J.H. and M.R.H. intervened seeking Kimberly’s termination and the

children’s adoption.2 Both fathers voluntarily relinquished their parental rights. 3 In July

2014, a five day jury trial was held. At its conclusion, the jury terminated Kimberly’s

parental rights to all of the children.

In its Order of Termination, the trial court found by clear and convincing evidence

that termination of the parent-child relationship between Kimberly and the children was

in the children’s best interest and that Kimberly had knowingly placed or knowingly

allowed the children to remain in conditions or surroundings which endangered their

physical or emotional well-being, § 161.001(1)(D), engaged in conduct or knowingly

2 I.E.’s foster parents also intend to adopt. 3 Johnny fathered A.J.H. and I.E. John fathered M.R.H.

2 placed the children with persons who engaged in conduct that endangered their

physical and emotional well-being, § 161.001(1)(E), and failed to comply with the

provisions of the trial court’s order that specifically established the actions necessary for

her to obtain the return of the children who had been in the permanent or temporary

managing conservatorship of the Department for not less than nine months as a result

of their removal for abuse or neglect. § 161.001(1)(O). This appeal followed.

DISCUSSION

Kimberly contends the evidence is insufficient to establish that she violated

section 161.001(1)(O) by failing to comply with the terms of her service plan. She

asserts that, because she completed the requirements of the service plan necessary to

achieve permanency, her parental rights should not have been terminated. 4 She also

contends the trial court erred in allowing Dr. Wilbanks to testify to her report’s

recommendations because her testimony was outside the purview or purpose for which

she was retained by the Department and was substantially more prejudicial than

probative. We disagree.

ISSUE ONE—COMPLETION OF ACTIONS NECESSARY FOR REUNIFICATION

Only one statutory ground is required to terminate parental rights under section

161.001. See In re S.F., 32 S.W.3d 318, 320 (Tex. App.—San Antonio 2000, no pet.).

Because Kimberly did not appeal the trial court’s determination to terminate her parental

4 In her brief, Kimberly concedes the Department had sufficient grounds for the children’s removal and does not contest whether there is clear and convincing evidence that termination is in the children’s best interest.

3 rights under §§ 161.001(1)(D) and (E), the trial court’s Order of Termination is

sustainable even assuming she complied with the service plan.

That said, however, in the interest of fairness and having reviewed the entire

record, we find there is both legally and factually sufficient evidence supporting the

termination of her parental rights under §§ 161.001(1)(D), (E) and (O). The evidence at

trial indicated that, although Kimberly completed most of the recommended services,

she had not implemented many of them in her day-to-day life, she was not truthful with

psychologists and counselors, she had not adequately addressed issues related to her

diagnosis of Borderline Personality Disorder5 and she continued to engage in pre-

termination patterns of conduct and behavior that originally caused the removal of her

children. Accordingly, issue one is overruled.

ISSUE TWO—ERROR IN THE ADMISSION OF TESTIMONY

At trial, Kimberly’s attorney objected to Dr. Wilbanks’s testimony regarding any

recommendations she made in her report such as whether Kimberly was ready for

reunification with her children.6 She asserted such testimony went beyond the

purposes for which Dr. Wilbanks was retained by the Department.

Jurors are the sole judges of the credibility of the witnesses and the weight to

give their testimony. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005)

5 Because Kimberly was not truthful with service providers and did not undergo a psychiatric evaluation as recommended, there is no assurance MHMR’s diagnosis fully describes the extent of her mental issues. 6 Dr. Wilbanks testified she conducted a bonding assessment and counseled Kimberly in connection with her participation in a therapeutic women’s group intended to help women become independent and learn to be protective of their children. The group addressed domestic violence, assertiveness and the need for stability in the home.

4 (Jurors “may choose to believe one witness and disbelieve another.”). If anything,

whether Dr. Wilbanks testified to matters beyond the scope of her retention would go to

the weight of her testimony—a matter for the jury to decide, not this Court. Id.

(“Reviewing courts cannot impose their own opinions to the contrary.”). In addition,

having considered her testimony regarding her expert qualifications, retention by the

Department and observations of Kimberly during the bonding assessment and

interactions during therapy, we fail to see how her trial testimony went beyond the

purposes for which she was retained by the Department.

Because Kimberly’s attorney did not assert at trial that Dr. Wilbanks’s testimony

was substantially more prejudicial than probative, this assertion was waived on appeal.

To preserve error on appeal, a party must make a timely, specific objection or motion to

the trial court that states the grounds for the ruling sought with sufficient specificity to

make the ground apparent to the trial court and that complies with the rules of evidence

and procedure. See TEX. R. APP. P. 33.1(a); Marine Transport Corp. v. Methodist

Hospital, 221 S.W.3d 138 n.3 (Tex. App.—Houston [1st Dist.] 2006, no pet.).

Accordingly, the trial court did not abuse its discretion by allowing the contested

testimony. We overrule issue two.

CONCLUSION

The trial court’s order is affirmed.

Patrick A. Pirtle Justice