Opinion
No. 10-02-086-CV.
Opinion delivered and filed February 11, 2004.
Appeal from the 77th District Court, Freestone County, Texas, Trial Court # 01-345-A.
Affirmed.
Daniel Burkeen, Attorney at Law — Groesbeck, for Appellant/Relator.
R. Neel McDonald — Freestone County Asst. County Attorney, Fairfield, for Appellee/Respondent.
Steven A. Neal, Attorney at Law, Ad Litem.
MEMORANDUM OPINION
This is an appeal of a judgment terminating the parent-child relationship between Lee Herrington and his four children: a son S.H., C.H., Z.H., and a daughter S.H. We affirm.
Where we use the initials S.H. without any qualification, we refer to the son.
In late 2000, the former Texas Department of Protective and Regulatory Services removed the children from the home of Herrington and the children's mother on allegations of physical abuse of the children. See TEX. FAM. CODE ANN. § 262.104 (Vernon 2002). The Department petitioned the court to terminate the parental rights of Herrington and the mother. See id. § 262.105 (Vernon 2002). The mother filed an affidavit of relinquishment of her parental rights. See id. § 161.103 (Vernon 2002 Supp. 2004). The trial court subsequently dismissed the suit because a final order had not been timely rendered. See id. § 263.401(a) (Vernon 2002). The Department filed a second petition, from which this appeal arises, for the termination of Herrington's parental rights. A jury found that Herrington's parental rights should be terminated, and the trial court rendered judgment for the Department. Herrington appeals.
Effective September 1, 2003, the name of the appellee is the Department of Family and Protective Services. See Act of Jun. 2, 2003, 78th Leg., R.S., ch. 198, § 1.27, 2003 Tex. Gen. Laws 611, 641.
After receiving the Department's brief, we notified the Department in October, 2002, that its brief did not "provide adequate citations to pertinent legal authorities." See TEX. R. APP. P. 38.1(h), 38.2(a)(1). We gave the Department an opportunity to file an amended brief, and notified it that if it did not timely do so, we would proceed as though it had failed to file a brief. The Department did not file an amended brief. We thus proceed on Herrington's brief alone. Accordingly, we take as true the facts as stated in Herrington's statement of facts. See id. 38.1(f). Applying the same briefing standards to Herrington's brief, we could only find that most of his issues are likewise inadequately briefed. See id. 38.1(h); In re R.G., 61 S.W.3d 661, 673 n. 3 (Tex. App.-Waco 2001, no pet.); Hall v. Okla. Factors, Inc., 935 S.W.2d 504, 506 (Tex. App.-Waco 1996, no writ). We review Herrington's issues in summary fashion.
1. Herrington contends that the evidence was legally insufficient. In connection with this issue, Herrington cites only one case, a factual-sufficiency case, for the proposition that "termination findings will be upheld only if 'the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State's allegations.'" See In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). Herrington apparently seeks dismissal.
The evidence supporting a judgment terminating parental rights is legally insufficient if, after a review "of the record evidence, a court determines that no reasonable factfinder could form a firm belief or conviction that the matter that must be proven is true." In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). In such a legal-sufficiency review, "a court should 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 that its finding was true." Id. In turn, "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. The court should disregard disputed evidence, not supporting the finding, "that a reasonable factfinder could have disbelieved or found to have been incredible." See id.
The trial court charged the jury, in part, that it might find that Herrington's parental rights should be terminated if it found that he "engaged in conduct . . . which endangers the physical or emotional well-being of the children, to wit: committed the offense of aggravated assault to S[.] H[.] on or about October 10, 2000." See TEX. FAM. CODE ANN. § 161.001(1)(E) (Vernon 2002).
Herrington acknowledges that there is direct evidence that he committed aggravated assault against S.H. An investigator for the Department and a police officer testified that Herrington admitted to pointing a pistol at S.H. when S.H. tried to steal a cigarette from Herrington. The investigator and S.H.'s school principal testified without objection that S.H. had told them that Herrington had pointed a pistol at S.H. Herrington points only to S.H.'s confused denial that the assault took place. S.H. testified that Herrington had not pointed the pistol at him, but that S.H. had believed at the time that Herrington was reaching for the pistol. Rather, as S.H. testified that Herrington later told him, Herrington had been pretending to reach for his belt but had really been reaching for his cigarettes. The jury could reasonably have disbelieved this denial or found it to be incredible, and we thus disregard evidence of the denial. Based on the evidence of Herrington's admissions, the jury could reasonably have resolved the disputed facts in favor of its finding of termination. Looking at the evidence in this light, the jury could reasonably have formed a firm belief or conviction that Herrington engaged in conduct that endangered the physical well-being of the children by committing aggravated assault against S.H., as the jury was charged. Having found that the evidence of one of the grounds of termination is sufficient, we need not reach Herrington's other complaints concerning the sufficiency of the evidence. See In re A.V., 113 S.W.3d 355, 363 (Tex. 2003). We overrule Herrington's seventh issue.
2. Herrington complains concerning the trial court's emergency ex-parte temporary orders. See TEX. FAM. CODE ANN. § 262.106(a) (Vernon 2002). Herrington apparently seeks dismissal. The record does not show any trial complaint concerning the orders. Herrington thus waived any complaint concerning them. See TEX. R. APP. P. 33.1(a). We overrule Herrington's first issue.
3. Herrington contends that the children's mother was an indispensable party to suit. Herrington cites no cases in support of that proposition. Since the mother had previously filed an affidavit of relinquishment of her parental rights, the petition did not name her. The record does not show that Herrington attempted to join the mother, or that he timely objected to her absence; Herrington first raised the matter in a motion for new trial. Herrington thus waived the complaint. See TEX. R. APP. P. 33.1(a); Gomez v. Kestermeier, 924 S.W.2d 210, 212 (Tex. App.-Eastland 1996, writ denied); Rondon v. Norton, 591 S.W.2d 322, 323 (Tex.Civ.App.-Fort Worth 1979, no writ). We overrule Herrington's second issue.
4. Herrington complains of the admission of a video-recorded statement of his daughter. Herrington argues that her statement was not reliable. Herrington apparently confuses the analysis under Family Code Section 104.002, under which the court admitted the recording, with that under Section 104.006. See TEX. FAM. CODE ANN. §§ 104.002, 104.006 (Vernon 2002). Section 104.006 is a general statute concerning hearsay statements by child-abuse victims; Section 104.002 is a specific statute concerning video-recorded statements of child-abuse victims. Id. Section 104.006 does include a reliability component; Section 104.002 does not. See id. The only case that Herrington cites is one interpreting Code of Criminal Procedure Article 38.071 (Vernon Supp. 2004). See Smith v. State, 61 S.W.3d 409 (Tex.Crim.App. 2001). In any case, even under Article 38.071, trustworthiness concerns the circumstances of the making of the statement, not with the statement's content. See id. at 412-13. Herrington's arguments concern his daughter's credibility, not the circumstances of the making of her statement. Herrington's complaint thus goes to the weight of the statement, not its admissibility. We overrule Herrington's third issue.
5. Herrington complains concerning leading questions to one of the Department's witnesses. "A leading question is one which suggests the desired answer or puts words into the witness's mouth to be echoed back." Mega Child Care, Inc. v. Tex. Dep't of Protective Reg. Servs., 29 S.W.3d 303, 307 (Tex. App.-Houston [14th Dist.] 2000, no pet.). Herrington raised only one leading objection, itself probably untimely, in the interrogation of the witness. As to the other arguably leading questions, then, Herrington waived his leading objection. See Tex.R.App.P. 33.1(a). The one question, and the answer to it, for which Herrington arguably preserved his leading objection was:
Q. Okay. Did [S.H.] — did he tell you that [Herrington] had punched him in the forehead at one point and knocked him out?
A. Yes, he did.
Leading questions should be used in direct examination only so far as is "necessary to develop the testimony of the witness." See TEX. R. EVID. 611(c). The decision to allow leading questioning is in the discretion of the trial court. Mega Child Care, 29 S.W.3d at 308. This question was not clearly improperly leading. The purpose of the testimony was to impeach directly S.H.'s trial testimony that he had never told the witness that. See TEX. R. EVID. 613(a). In any case, Herrington fails to suggest how he was harmed by this method of interrogation. See Tex.R.App.P. 44.1(a); Mega Child Care at 308; see also Kroger Tex. Ltd. P'ship v. Suberu, 113 S.W.3d 588, 604 (Tex. App.-Dallas 2003, no pet.) ("The burden is on the appellant to show probability of harm."); Tamburello v. Welch, 383 S.W.2d 936, 938 (Tex.Civ.App.-Waco 1964), rev'd on other grounds, 392 S.W.2d 114 (Tex. 1965). We overrule Herrington's fourth issue.
6. Herrington complains of the admission of evidence "outside the pleadings." We understand Herrington's complaint to be that the evidence was not relevant to the predicate acts for termination alleged in the petition. See TEX. FAM. CODE ANN. § 161.001(1)(D), (E), (F), (J) (Vernon 2002); TEX. R. EVID. 401. In particular, Herrington complains of evidence that Herrington knowingly permitted sexual abuse by S.H. of Herrington's daughter and Z.H., of evidence that the children had been briefly removed from Herrington in another state because he had beaten them with a belt, and of general testimony of Herrington's "abuse and neglect" of Z.H. As to the evidence of the prior removal, the trial court admitted the evidence on the ground that Herrington had opened the door to it, and Herrington does not challenge that ruling on appeal. As to the other evidence, it was relevant at least on the issue of whether termination was in the best interest of the children. See TEX. FAM. CODE ANN. § 161.001(2) (Vernon 2002). Among the factors to be considered on the best interest of the children are "the emotional and physical danger to the child now and in the future," "the parental abilities of the individuals seeking custody," and "the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one." Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The evidence of which Herrington complains was relevant at least on these factors. We overrule Herrington's fifth issue.
7. Herrington complains of the admission of a psychological report on one of the children. In particular, Herrington argues that the Department did not lay the predicate for the admission of the report as a business record, since there was no evidence of the "source of information or the method or circumstances of preparation" of the report. See TEX. R. EVID. 803(6). Herrington cites no cases in support of this argument. At trial, Herrington's only predicate objection to the report was that "the proper predicate hasn't been laid." "A general objection to an insufficient predicate" fails to preserve error. Seymour v. Gillespie, 608 S.W.2d 897, 898 (Tex. 1980). Herrington failed to preserve his specific complaint. See Tex.R.App.P. 33.1(a). We overrule Herrington's sixth issue.
Having overruled Herrington's issues, we affirm the judgment.