in the Interest of J.D.H., E.K.H., Z.H.H., Children

• Court: Court of Appeals of Texas
• Decided: February 20, 2014
• Docket: 07-13-00293-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-13-00293-CV

IN THE INTEREST OF J.D.H., E.K.H., Z.H.H., CHILDREN

On Appeal from the 100th District Court Donley County, Texas Trial Court No. 6931, Honorable Stuart Messer, Presiding

February 20, 2014

MEMORANDUM OPINION Before CAMPBELL and HANCOCK and PIRTLE, JJ.

This is an accelerated appeal involving the termination of the parental rights of

the parents, Andrea and John, to J.D.H., E.K.H., and Z.H.H. Each parent is

represented by their own counsel who has filed a brief with the Court. The trial court

terminated Andrea’s parental rights pursuant to the Texas Family Code sections

161.001(1)(E) and (O). See TEX. FAM. CODE ANN. § 161.001(1)(E), (O) (West Supp.

2013).1 The trial court terminated John’s parental rights pursuant to sections

161.001(1)(C), (D), (E), (F), (N), and (O). See § 161.001(1)(C), (D), (E), (F), (N), (O).

1 Further reference to the Texas Family Code will be by reference to “section ____” or “§ ____.” Further, the trial court found that termination of each parent’s parental rights was in the

best interest of the children. See § 161.001(2).

Andrea perfected her appeal and presents three issues. She contends in her

second and third issues that the evidence was insufficient to support the trial court’s

predicate findings by clear and convincing evidence. Further, Andrea contends in her

first issue that the evidence was insufficient to support the trial court’s finding that

termination of her parental rights was in the best interest of the children.

John perfected his appeal and presents the Court with two issues. John’s first

issue contends that the trial court committed error in entering an order for substituted

service on John. John’s second issue contends that, because John’s parental interest

were not terminated in the first suit filed by the Texas Department of Family and

Protective Services, that the trial court erred in terminating his parental rights because

there was no material and substantial change in circumstances since the first denial of

termination.

Disagreeing with both Andrea and John, we will affirm.

Factual and Procedural Background

The Department initially filed a case seeking to terminate Andrea’s and John’s

parental rights in 2010. The stated reason for termination was the use of drugs in the

home. John had little or no contact with the Department during the first case and never

signed a parenting plan nor attempted to complete any of the requirements of the

Department’s plan. Because Andrea worked diligently at her services, the children were

ultimately returned to her and the case was dismissed in January 2012. At the time of

2 the dismissal, the case against John was also dismissed. However, the 2012 order

denied John the appointment as possessory conservator and, further, denied John

possession and access to the children.

Subsequently, in February 2012, the Department’s investigator received a report

that Andrea was giving marijuana to J.D.H. During an interview regarding this report,

Andrea submitted to an oral drug screen which was positive for methamphetamine.

When confronted with the test results, Andrea admitted that she had used

methamphetamine. Because of Andrea’s drug use, the children were again removed

from the home.

During the Department’s investigation, Andrea reported to the investigator that

following the children’s return to the home in January, John had stayed at the home for

a few days. At trial, the Department’s caseworker, Jessica Lepe, testified Andrea

admitted that, during the time John was back in the home, she and he used drugs

together. Additionally, from Andrea the investigator learned that John had physically

assaulted Andrea. From the record, it is not clear whether the acts of physical violence

occurred before or during John’s last appearance in the home. However, John’s acts of

physical violence toward Andrea were documented in separate interviews by Lepe with

both Andrea and the children. The children reported that they were afraid of John.

During both the initial case and the new case, Andrea was required to obtain a

psychological evaluation. Dr. William Hoke performed each evaluation. At the time Dr.

Hoke saw Andrea in connection with the second case, she was living in the Walker

House in a drug and alcohol program. However, according to the testimony, Andrea left

3 the Walker House program without completing all portions of the program. In

connection with the second psychological assessment, Dr. Hoke testified that the

results revealed that Andrea was amphetamine dependent, a marijuana abuser, and

suffered from adult antisocial behavior, brief psychotic disorder, depressive disorder,

and personality disorder borderline with antisocial and paranoid features. Dr. Hoke’s

recommendation included individual counseling, completion of drug treatment sobriety,

a 12-step program. If Andrea did not make the required changes, Dr. Hoke saw little

chance the children could be returned to her due to the significant danger that exposure

to a drug lifestyle posed.

After the second removal, the Department made arrangements for Andrea to

receive ten individual counseling sessions with Sonya Higgins, a licensed professional

counselor. Higgins testified that Andrea attended only four of the sessions, two in

February 2013 and two in April 2013. Further, Higgins opined that Andrea overcame

none of the problems that caused the need for individual counseling and did not make

sufficient progress for the children to be returned to her.

In addition to not completing the tasks and recommendations of Dr. Hoke,

Andrea failed to complete her service plan. Specifically, the record demonstrates that

Andrea failed to complete her individual counseling, did not complete the

recommendations from her drug and alcohol assessment that she attend Alcoholics

Anonymous/Narcotics Anonymous (AA/NA).

The children’s therapist, Stephen Jennings, testified regarding his observations

of the children and the effect that return of the children to Andrea would have on them.

4 His testimony may be summed up that, since Andrea did not follow through with her

individual therapy, AA/NA, and drug treatment, she could not provide the children with a

safe home. He observed that to return the children to her would result in the regression

of the children into the chaotic life they had known before.

Regarding John, the testimony was that the caseworker, Lepe, was never able to

make personal contact with John. In fact, the trial court signed an order for substituted

service pursuant to Texas Rules of Civil Procedure 103 and 106(b)(1). See TEX. R. CIV.

P. 103, 106(b)(1).2 In this case, the trial court designated that service be left with John’s

mother.

The record demonstrates that, during the pendency of this second action, John

was never present in the home and never offered any support for the children. The only

time John was present in the home was after the first case concluded and he was there

against the express orders of the trial court that he have no possession or access to the

children. The Department presented evidence that a service plan was created for John;

however, since John had no contact with the Department, it was mailed to his mother

who had advised the Department that she would get his mail to him.

At the conclusion of the evidence, the trial court found that the Department had

proven the predicate acts alleged “beyond a reasonable doubt”3 and that it would be in

2 Further reference to the Texas Rules of Civil Procedure will be by reference to “Rule ____.” 3 We construe the trial court’s findings as meaning that the trial court found the evidence sufficient under the clear and convincing degree of proof standard defined by section 101.007.

5 the best interest of the children that both Andrea’s and John’s parental rights be

terminated. It is from this order that both parents appeal.

Standard of Review

The natural right existing between parents and their children is of constitutional

dimensions. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); see Santosky v. Kramer,

455 U.S. 745, 758–59, 102 S.Ct. 1388, 71 L.Ed.2d 599 (1982). A decree terminating

this natural right is complete, final, irrevocable, and divests for all time that natural right

as well as all legal rights, privileges, duties, and powers between the parent and child

except for the child’s right to inherit. Holick, 685 S.W.2d at 20. That being so, we are

required to strictly scrutinize termination proceedings. In re G.M., 596 S.W.2d 846, 846

(Tex. 1980). However, parental rights are not absolute, and the emotional and physical

interests of a child must not be sacrificed merely to preserve those rights. In re C.H., 89

S.W.3d 17, 26 (Tex. 2002).

The Texas Family Code permits a court to terminate the parent-child relationship

if the petitioner establishes (1) one or more acts or omissions enumerated under section

161.001(1), and (2) that termination of the parent-child relationship is in the best interest

of the child. § 161.001. Though evidence may be relevant to both elements, each

element must be proved, and proof of one does not relieve the burden of proving the

other. See In re C.H., 89 S.W.3d at 28. While both a statutory ground and best interest

of the child must be proved, only one statutory ground is required to terminate parental

rights under section 161.001. In re A.V., 113 S.W.3d 355, 362 (Tex. 2003). Therefore,

we will affirm the trial court’s order of termination if legally and factually sufficient

6 evidence supports any one of the grounds found in the termination order, provided the

record shows that it was also in the best interest of the child for the parent’s rights to be

terminated. See id.

Due process requires the application of the clear and convincing standard of

proof in cases involving involuntary termination of parental rights. In re J.F.C., 96

S.W.3d 256, 263 (Tex. 2002); see § 161.206(a) (West 2008). “‘Clear and convincing

evidence’ means the measure or degree of proof that will produce in the mind of the

trier of fact a firm belief or conviction as to the truth of the allegations sought to be

established.” § 101.007 (West 2008). This standard, which focuses on whether a

reasonable jury could form a firm belief or conviction, retains the deference a reviewing

court must have for the factfinder’s role. In re C.H., 89 S.W.3d at 26.

In reviewing the legal sufficiency of the evidence supporting an order terminating

parental rights, we look at all the evidence in the light most favorable to the finding to

determine whether a reasonable trier of fact could have formed a firm belief or

conviction as to the truth of the allegations sought to be established. See In re J.F.C.,

96 S.W.3d at 266. “To give appropriate deference to the factfinder’s conclusions and

the role of a court conducting a legal sufficiency review, looking at the evidence in the

light most favorable to the judgment means that a reviewing court must assume that the

factfinder resolved disputed facts in favor of its finding if a reasonable factfinder could

do so.” Id. In other words, we will disregard all evidence that a reasonable factfinder

could have disbelieved or found to have been incredible. Id.

7 When reviewing the factual sufficiency of the evidence supporting a termination

order, we determine “whether the evidence is such that a factfinder could reasonably

form a firm belief or conviction about the truth of the [Department]’s allegations.” In re

C.H., 89 S.W.3d at 25. In conducting this review, we consider whether the disputed

evidence is such that a reasonable factfinder could not have resolved the disputed

evidence in favor of its finding. In re J.F.C., 96 S.W.3d at 266. “If, in light of the entire

record, the disputed evidence that a reasonable factfinder could not have credited in

favor of the finding is so significant that a factfinder could not reasonably have formed a

firm belief or conviction, then the evidence is factually insufficient.” Id.

Andrea’s Termination

Predicate Acts of Andrea

The allegations regarding Andrea were that she engaged in conduct or

knowingly placed the child with persons who engaged in conduct which endangered the

physical and emotional well-being of the children. § 161.001(1)(E). Additionally, the

Department alleged that Andrea failed to comply with the provisions of the court order

that specifically established the actions necessary for her to obtain the return of the

children who have been in the temporary managing conservatorship of the Department

for not less than nine months as a result of the children’s removal under Chapter 262 for

abuse or neglect. See § 161.001(1)(O).

Remembering that only one statutory ground is required to terminate parental

rights under section 161.001, we will address the proof of the predicate act pursuant to

section 161.001(1)(O). In re A.V., 113 S.W.3d at 362. Initially, we observe that a claim

8 of substantial compliance with a court order does not defeat a termination based upon

subsection (O). See In re I.G., 383 S.W.3d 763, 771 (Tex. App.—Amarillo 2012, no

pet.). We will review the applicable facts accordingly.

The record demonstrates that Andrea was provided with the family service plan

that she was required to complete in order to have the children returned to her. Further,

Andrea does not contest that she signed the family service plan and, thereby,

acknowledged that she understood the requirements. Finally, no one is contesting that

the plan was approved by the trial court and entered as an order of that court.

Analysis

The record demonstrates that Andrea was ordered to obtain a psychological

evaluation from Dr. Hoke. Dr. Hoke, based upon that evaluation, recommended that

Andrea have individual counseling. Pursuant to this recommendation, the Department

entered into an agreement with Higgins to provide ten sessions of individual counseling

to Andrea. However, Andrea only attended four sessions over a three-month period.

Additionally, Dr. Hoke recommended that Andrea complete alcohol and drug

counseling. As part of this recommendation, Andrea was to attend AA/NA meetings

and to provide proof of attendance. Andrea ceased providing proof of attendance at

AA/NA after February 2013. Under the record before this Court, when we view the

evidence in the light most favorable to the trial court’s ruling, the evidence is legally

sufficient to produce a firm conviction or belief in the mind of the factfinder that the

allegation that Andrea failed to complete her court-ordered services is true. See In re

J.F.C., 96 S.W.3d at 266.

9 When we review the evidence from the perspective of factual sufficiency, we are

convinced the evidence is such that a factfinder could reasonably form a firm belief or

conviction about the truth of the Department’s allegation. See In re C.H., 89 S.W.3d at

25. There is contained in the record before this Court no disputed evidence that would

result in a different result. Accordingly, Andrea’s issue challenging the evidence to

support the legal and factual sufficiency of the evidence to prove the subsection (O)

allegation is overruled. Because we need find only one predicate act to support the trial

court’s order regarding termination, we do not address the evidence to support the

subsection (E) allegation. See In re A.V., 113 S.W.3d at 362.

Best Interests of the Children

There is a strong presumption that a child’s interest is best served by preserving

the conservatorship of the parents; however, clear and convincing evidence to the

contrary may overcome that presumption. In re R.R., 209 S.W.3d 112, 116 (Tex. 2006)

(per curiam). The Texas Supreme Court has recognized a non-exhaustive list of factors

that are pertinent to the inquiry whether termination of parental rights is in the best

interest of the child: (1) the desires of the child, (2) the emotional and physical needs of

the child now and in the future, (3) the emotional and physical danger to the child now

and in the future, (4) the parental abilities of the individuals seeking custody, (5) the

programs available to assist these individuals to promote the best interest of the child,

(6) the plans for the child by these individuals or by the agency seeking custody, (7) the

stability of the home or proposed placement, (8) the acts or omissions of the parent

which may indicate that the existing parent-child relationship is not a proper one, and (9)

any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d

10 367, 371–72 (Tex. 1976); see also § 263.307 (West 2008) (providing extensive list of

factors that may be considered in determining child’s best interest). In examining the

best interest of the child, we may consider evidence that was also probative of the

predicate act or omission. See In re C.H., 89 S.W.3d at 28. The best interest

determination may rely on direct or circumstantial evidence, subjective facts, and the

totality of the evidence. In re N.R.T., 338 S.W.3d 667, 677 (Tex. App.—Amarillo 2011,

no pet.).

The Department need not prove all nine Holley factors, and the absence of

evidence relevant to some of those factors does not bar a finding that termination is in

the child’s best interest, especially in the face of undisputed evidence that the parental

relationship endangered the child. See In re C.H., 89 S.W.3d at 27. No one Holley

factor is controlling, and evidence of one factor may be sufficient to support a finding

that termination is in the child’s best interest. In re A.P., 184 S.W.3d 410, 414 (Tex.

App.—Dallas 2006, no pet.) The evidence supporting the predicate grounds for

termination may also be used to support a finding that the best interest of the children

warrants termination of the parent-child relationship. In re D.S., 333 S.W.3d 379, 384

(Tex. App.—Amarillo 2011, no pet.).

Analysis of Best Interests Factors4

In order to properly analyze the best interest of the children, we should review

the factual background of the case. In addressing this factual background, we need

also to remember that the trial court’s removal of the children from Andrea’s care in

4 We note that John has not challenged the evidence to support the trial court’s finding that it is in the best interest of the children to terminate his parental rights.

11 February 2012 was the second removal of these children. The children were returned

to Andrea in January 2012 after she had made significant progress in addressing her

drug issues and her parenting abilities. Yet, within a 30-day span the Department felt

compelled to go back and, for the safety of the children, remove them from Andrea’s

care.

The initial impetus for the second removal was a report that, not only was Andrea

using drugs, but she was also offering them to J.D.H. This allegation was not proved;

however, the investigation spawned by the allegation revealed that Andrea had returned

to her practice of using methamphetamine while the children were in the home. Further,

the record details that the children were living in a chaotic environment where there was

little parental control offered or accepted.

The testimony of the Home Life Supervisor from Presbyterian Children’s Home,

Kimber Thomas, was very demonstrative regarding the effect the children’s home life

was having on them. Thomas recounted that all three of the children were defiant when

they first arrived at Presbyterian. Further, each of them was aggressive toward other

children and the staff. In fact, the two older children had to be removed from

Presbyterian and sent to a secure and more structured environment. During the period

that the children were at Presbyterian, Thomas noted that, after each visit with Andrea,

the children, each of them, would become more aggressive and less responsive to

control.

Jennings, the children’s counselor, testified that he held some visitation events

with the children and Andrea. In describing the visitation sessions, Jennings used the

12 terms chaotic and unstructured. Further, Jennings opined that Andrea seemed to lack

the ability or willingness to do much with the children’s conduct. Jennings observations

were, for the most part, a result of the first intervention by the Department because,

although Andrea was ordered to return for further family therapy after the children were

returned to her, she failed to do so.

Higgins, Andrea’s counselor, was appointed to counsel Andrea in the second

case. Andrea was to have attended ten sessions of personal counseling but only

attended four. Based on Higgins’s dealings with Andrea in those four sessions, Higgins

opined that Andrea could not establish and maintain a safe environment. Further,

Higgins stated that in the short time she dealt with Andrea, Andrea had not made any

progress on the underlying problems and issues. As a result of these opinions, Higgins

felt that the best interest of the children would be served by termination of Andrea’s

parental rights.

In describing Andrea, the psychologist, Dr. Hoke, described her as defensive and

unwilling to take responsibility for any of the problems that she had. One of the tests

administered to Andrea resulted in her being classified as a psychopathic deviate.

According to Hoke, this means that Andrea has really strong antisocial tendencies, is

very impulsive, has difficulty in accepting responsibility, and will generally seek to get

her own needs met first. As more directly on point, Hoke testified that Andrea would

have a very difficult time putting her children’s needs before her desires. Additionally,

Hoke characterized these personality characteristics as very difficult to change. We will

now apply the evidence to some of the Holley factors.

13 Desires of the Children

While there is not direct evidence that the children do or do not want to return to

their mother, there was some testimony that sheds some light on this issue. The

children’s therapist, Jennings, testified that the day before the hearing there was a

phone visit amongst the children. During this conversation the children expressed

knowledge that Andrea could not care for them and that they were pretty resolved to

this situation. Insofar as it is indicative of the children’s desires, this evidence would

tend to demonstrate that the children have no desire to return to their mother and would

therefore weigh in favor of the trial court’s decision.

The Emotional and Physical Needs of the Children Now and in the Future The Emotional and Physical Danger to the Children Now and in the Future

The evidence supporting the predicate grounds for termination may also be used

to support a finding that the best interest of the children warrants termination of the

parent-child relationship. In re D.S., 333 S.W.3d at 384. Further, evidence of past

deeds of misconduct or neglect may foretell a parent’s future conduct. Id. The

factfinder may infer that a parent’s past conduct of endangering the well-being of the

children may recur in the future if the children are returned. In re D.L.N., 958 S.W.2d

934, 934 (Tex. App.—Waco 1997, pet. denied). In fact, a parent’s abuse of drugs while

having custody of children supports termination under § 161.001(1)(E). See In re

J.O.A., 283 S.W.3d 336, 345 (Tex. 2009). This evidence strongly supports the trial

court’s decision that termination is in the best interest of the children.

14 The Parenting Ability of the Individuals Seeking Custody The Programs Available to Assist the Party Seeking Custody

The record before us indicates that Andrea’s home could best be described as

chaotic. Even when Andrea was visiting the children in a supervised visitation

surrounding, her ability to parent the children was described as chaotic. That Andrea

knew what steps would be required to demonstrate her ability as a parent was readily

demonstrated by the fact that, in the initial removal of the children from the home,

Andrea successfully completed the Department’s plan of services and had the children

placed back into the home. But the most troubling evidence regarding Andrea’s ability

to parent these children was the psychological testimony of Hoke. Hoke testified that

Andrea would have a very difficult time putting the needs of the children before her own

desires and, further, that such a behavior is extremely hard to overcome. Finally,

Andrea was offered ten sessions of individual counseling, during which she could have

worked on these issues, yet she only attended four sessions. Failure to avail oneself of

the programs offered in the past can be used to infer that the parent lacks the ability to

motivate herself to improve in the future. In re W.E.C., 110 S.W.3d 231, 245 (Tex.

App.—Fort Worth 2003, no pet.). All of this evidence and the reasonable inferences

that might be derived from the evidence strongly support the trial court’s decision that

termination is in the best interest of the children.

Plans for the children

Suffice it to point out that Andrea did not show up for trial, had not paid any

support for the children, and, in the period immediately before the final hearing, had

15 minimal contact with the children. These facts strongly support the trial court’s decision

regarding the best interest of the children.

From a review of these Holley factors, it is clear that the trial court had sufficient

testimony and facts before it upon which to find by clear and convincing evidence that

termination was in the best interests of the children. In re J.F.C., 96 S.W.3d at 266.

Accordingly, Andrea’s issue to the contrary is overruled.

John’s Termination

Substituted Service on John

John’s first issue contends that the order for substituted service on John was

issued in error because the service was ordered left with John’s mother. Under John’s

theory, the error was that service was left with a person who was interested in the

outcome of the case. To support this argument, John cites the Court to Texas Rule of

Civil Procedure 103. See Rule 103. Rule 103 describes who may serve “Process—

including citation and other notices, writs, order, and other papers issued by the court.”

Id. The rule then describes three categories of individuals who may serve process.

After this list, the rule states, “But no person who is a party or interested in the outcome

of a suit may serve any process in that suit.” Id. A review of the record clearly

demonstrates that John’s mother did not serve any process on herself or any other

person. Whether she was a party interested in the outcome of the suit at the time she

was served with substituted service on John is a matter open for discussion. However,

that is not John’s issue. John has simply misread the rule, and his position finds no

support in the law. Accordingly, John’s first issue is overruled.

16 During oral arguments John’s attorney signaled intent to abandon the issue

described above. From that point, John’s counsel started arguing that the trial court

lacked personal jurisdiction over John because of defective substituted service.

Subsequently, John filed a motion to file a “Supplemental Brief” and, in fact, submitted

the proposed supplemental brief to the Court. After receiving the motion and proposed

brief, this Court requested a response to the motion from the Department. The

Department submitted a response which essentially argued that the Court should deny

the motion because John was, in fact, filing a “Reply Brief” that attempted to raise an

issue not previously presented to the Court in contravention of Rule 38.3 of the Texas

Rules of Appellate Procedure and cases construing that rule. See TEX. R. APP. P. 38.3;

see also Marin Real Estate Partners, L.P. v. Vogt, 373 S.W.3d 57, 72 (Tex. App.—San

Antonio 2011, no pet.) (holding issues raised for the first time in reply brief may not be

considered, except in exceptional cases); Fox v. City of El Paso, 292 S.W. 247, 249

(Tex. App.—El Paso 2009, pet. denied). In this case, John has presented the Court

with no exceptional circumstances, and John has not even averred this was an issue

that could not have been raised on original submission. Accordingly, we have denied

the motion to supplement.5

5 Were we to allow the “supplemental brief” to be considered it would be of no avail to John because, on this issue of personal jurisdiction, the facts reflect that a valid order for substituted service was entered. Had counsel for John wished to contest this issue, the proper vehicle would have been by a special appearance through Rule 120a. Counsel did not avail himself of this and, in fact, participated throughout the trial by questioning witnesses and, finally, by making a final argument to the trial court. These actions established the trial court’s personal jurisdiction over John. See In re P.Y.M., No. 04-13-00024-CV, 2013 Tex. App. LEXIS 9803, at *7 (Tex. App.—San Antonio Aug. 7, 2013, pet. denied) (mem. op.)

17 Change of Circumstances

John’s second issue contends that there was no material and substantial change

in circumstances since the denial of the Department’s request to terminate John’s

parental rights in the first action. The Department counters that John is misconstruing

the statute when he argues that the change in circumstance is related only to him. For

purposes of this opinion only, we will assume without deciding that the facts of this case

are governed by section 161.004(a). See § 161.004(a) (West 2008).

Section 161.004 provides in part as follows:

(a) The court may terminate the parent-child relationship after rendition of an order that previously denied termination of the parent-child relationship if:

(1) the petition under this section is filed after the order denying termination was rendered;

(2) the circumstances of the child, parent, sole-managing conservator, possessory conservator, or other party affected by the order denying termination have materially and substantially changed since the date that the order was rendered; . . . .

§ 161.004(a)(1), (2).

From the language of the statute, it is clear that a material and substantial

change of any affected party will be sufficient for the purposes of proceeding forward in

the termination. Under the facts presented in this case, Andrea relapsed into

methamphetamine use after the children were returned to her. This would be more than

sufficient. See In re N.R.T., 338 S.W.3d at 679. Further, there was the additional factor

of John moving back into the home after the trial court’s order of dismissal held that he

18 was to have no possessory interest or access to the children. Either of these events

would provide the requisite “material and substantial change” under section 161.004.

Accordingly, John’s second issue is overruled.

Conclusion

Having overruled the issues presented by Andrea and John, we affirm the

judgment of the trial court.

Mackey K. Hancock Justice

Pirtle, J., concurring and dissenting.