In the Interest of C.J.B.

137 S.W.3d 814, 2004 Tex. App. LEXIS 4365
CourtCourt of Appeals of Texas
DecidedMay 12, 2004
DocketNo. 10-03-00009-CV
StatusPublished
Cited by12 cases

This text of 137 S.W.3d 814 (In the Interest of C.J.B.) 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 the Interest of C.J.B., 137 S.W.3d 814, 2004 Tex. App. LEXIS 4365 (Tex. Ct. App. 2004).

Opinions

OPINION

TOM GRAY, Chief Justice.

C.J.B. was taken from Cheryl Billups shortly after his birth and placed in foster care. Cheryl was a drug and alcohol abuser. By the time C.J.B. was 19 months old, Cheryl convinced the Texas Department of Protective and Regulatory Services (the Department) that she was clean and sober and could take care of C.J.B. But she had deceived the Department. Cheryl was already drinking again when she regained custody of her child. In a little over three months, C.J.B. was again removed from Cheryl’s custody.

Cheryl sobered up, but it was too late. The Department had decided it was not going to risk C.J.B.’s well-being. By the time of the trial, Cheryl had been sober, maintained a job, and maintained the same apartment for ten months.

Cheryl’s parental rights to C.J.B. were terminated after a jury trial. She presents four issues for review. We affirm the trial court’s judgment.

Expert Testimony

In the summary of her argument, Cheryl contends that, but for Dr. Chieza’s testimony, there is little evidence that termination was in CJ.B.’s best interest. Thus, we will address her second issue first where she argues that the trial court erred in admitting the testimony of Dr. Mercy Chieza without subjecting that testimony to a Daubert/Robinson1 hearing to determine the validity of the opinions expressed by Dr. Chieza.

Before calling Dr. Chieza as a witness, counsel for the Department informed the court that she did not know whether an “expert hearing” would be necessary. Cheryl offered a stipulation that the doctor could “testify as a psychologist.” The Department then acknowledged that “if the questioning gets outside that range, then there will be an objection to more expert qualifications.” Dr. Chieza took the stand and began testifying. Soon thereafter, the Department offered the written report of Dr. Chieza’s psychological evaluation into evidence. The following transpired:

MR. McCALL: I object. The proper predicate isn’t laid. She’s going to be testifying, so it’s going to go cumulative. Part of this, I think, is inadmissible and has opinions that may not have sufficient basis.
THE COURT: I need to look at the exhibit. Doctor, if you’ll pass me the exhibit.
MR. McCALL: There is hearsay also.
THE COURT: Ladies and gentlemen, I’m going to have to make some eviden-tiary rulings here outside the presence of the jury. I’m going to recess you-all until I get that done. Remember the instructions. Do not discuss the case or allow anyone to discuss it with you. We’ll call you back in a few minutes.
(Jury not present.)
[818]*818We’re outside the presence and hearing of the jury. What was your specific objections, Mr. McCall, to State’s Exhibit 2?
MR. McCALL: Proper predicate is not laid. It’s not a business report. This is a report. It contains a lot of opinions in it rather than recording an after event, the after event like the doctor is going to record when they take somebody’s history and write their diagnosis. It has a lot of impressions and things, numerous things I may object to individually as the question is asked, but it’s also cumulative, if she’s going to be testifying about what she did and what her diagnosis is.
THE COURT: This is a psychological evaluation of a child the subject of this lawsuit. Everybody has stipulated to this witness’ qualifications and credentials as an expert in the field of psychology, so to that extent I’m overruling that objection. What other objection do you have?
MR. McCALL: Well, a lot of her impressions that she has on the last page, there is no mention whatsoever — they need to be based on psychological probability if she’s going to have an opinion on something, rather than where she says, “Sexualized behaviors that were reported by the foster mother suggest that CJ has either experienced sexual abuse, molestation or has witnessed live or onscreen sexual acts.” A suggestion is not reasonable psychological probability. We’re getting into a guessing game and speculation. Just the next sentence, “Other behaviors suggest existence of an emotional disturbance that support the notion that he was probably sexually abused in the past.” We’re getting way off on a limb when she doesn’t have all of the—
THE COURT: Well, she’s an expert. She’s entitled to use her experience and training and background in diagnosing this child and in explaining to the Court and the jury the basis for her findings. MR. McCALL: Well, if it’s not a finding based on psychological probability, I’m going to object to it.
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THE COURT: Well, I’m overruling the objection. What other objection do you have?
MR. McCALL: That was all my objections. I’m going to object anytime she tries to get — I don’t know if she’s going to try to give an opinion on that or not.
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THE COURT: All right. I’m going to admit the exhibit, if those are all the objections.
All right. Bring in the jury.
[[Image here]]
(Open court, jury present.)
THE COURT: I know you — all thought you were going to be gone a long time. • We fooled you — all.
Okay. State’s Exhibit Number 2 is admitted. You — all may proceed.

As can be determined from the above exchange, Cheryl’s objections relate solely to the admissibility of Dr. Chieza’s written report. Her complaint on appeal attacks the trial court’s failure to hold a Daubert/Robinson hearing. As such, this complaint does not comport with the complaint raised before the trial court and presents nothing for our review. See Tex.R.App. P. 33.1; see also Texas D.O.T. v. Olson, 980 S.W.2d 890, 898 (Tex.App.-Fort Worth 1998, no pet.).

If Cheryl was attempting to request a Daubert/Robinson hearing, the request was not sufficient to inform the trial court of such request. To present a complaint for appellate review, the complain[819]*819ing party must state the grounds for the ruling that it seeks with sufficient specificity to make the trial court aware of the complaint. Tex.R.App. P. 33.1(a). A specific objection is one which enables the trial court to understand the precise grounds so as to make an informed ruling, affording the offering party an opportunity to remedy the defect, if possible. McKinney v. National Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex.l989)(op. on reh’g). On this record, it cannot be inferred, particularly given the prior stipulation, that Cheryl was challenging, at that time, the expert nature of Dr. Chieza’s opinions. Cheryl reserved objection to the doctor’s opinions if she later testified to any. Cheryl, ultimately, did not object to Dr. Chieza’s opinion testimony. Again, Cheryl’s issue presents nothing for review.

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Bluebook (online)
137 S.W.3d 814, 2004 Tex. App. LEXIS 4365, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-cjb-texapp-2004.