In re S.A.P.

Page 685

169 S.W.3d 685

In the Interest of S.A.P., a Child.

No. 10-02-00345-CV.

Court of Appeals of Texas, Waco.

June 22, 2005.

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Charles L. Levy, Nita C. Fanning, Law Office of Nita Fanning, Waco, for appellant/relator.

Leona Jaquette, TX Dept. of Protective Services, Austin, for appellee/respondent.

Kevin Keathley, Waco, for ad litem.

Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.

OPINION ON REMAND

BILL VANCE, Justice.

I. Introduction

This case, on remand from the Texas Supreme Court, is an appeal from the termination of the parent-child relationships of Rebecca Williams Peterson (Rebecca) and Jay Scott Peterson (Scott) with their child, S.A.P. Tex. Fam.Code Ann. § 161.001 (Vernon 2002). Rebecca's and Scott's parent-child relationships with S.A.P. were terminated in November 2002. They each brought several issues on appeal, complaining about (1) the legal and factual sufficiency of the evidence, (2) the testimony of Dr. James Shinder, and (3) the estoppel effect of letters from the Texas Department of Protective and Regulatory Services (TDPRS). In addition, Rebecca raised two issues regarding the effect of a prior termination, and Scott brought one charge issue.

We sustained Rebecca's third issue and Scott's fourth issue on the estoppel effect of the TDPRS letters and reversed the judgment and remanded the cause for further proceedings. In re S.A.P., 135 S.W.3d 165 (Tex.App.-Waco 2004), rev'd, 156 S.W.3d 574 (Tex.2005). The supreme court disagreed with our holding, reversed our judgment, and remanded the cause to us for consideration of the remaining issues. In re S.A.P., 156 S.W.3d 574 (Tex.2005).

Because we find that the evidence was factually insufficient to meet the clear and convincing burden of proof, we will now reverse the judgment and remand the cause for a new trial. Because of our disposition, we will also address several issues likely to arise if there is a retrial of this cause. See Edinburg Hosp. Auth. v. Trevino, 941 S.W.2d 76, 81 (Tex.1997); In re J.B., 93 S.W.3d 609, 617 (Tex.App.-Waco 2002, pet. denied).

II. Background

S.A.P. was born on June 8, 2001, to Scott and Rebecca.¹ Almost immediately after S.A.P. was born — and while he and Rebecca were still in the hospital — TDPRS took custody of him pursuant to a court order. Eleven months later, TDPRS amended its petition to seek termination of Scott's and Rebecca's parent-child relationships with S.A.P.

At trial, which began on November 18, 2002, the jury found neither Rebecca nor Scott had knowingly placed or allowed S.A.P. to remain in conditions endangering his well-being. See Tex. Fam.Code Ann. § 161.001(1)(D). But the jury found the following by clear and convincing evidence:

• Rebecca has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child (Tex. Fam.Code Ann. § 161.001(1)(E));

• Rebecca has had her parent-child relationship terminated with respect to another child based on a finding that her conduct was in violation of sections 161.001(1)(D) or (E) of the Texas Family Code, or substantially equivalent provisions of the law of another state (Tex. Fam.Code Ann. § 161.001(1)(M));

• Termination of the parent-child relationship between Rebecca and S.A.P. is in S.A.P.'s best interest (Tex. Fam.Code Ann. § 161.001(2));

• Scott has engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child (Tex. Fam.Code Ann. § 161.001(1)(E));

• Scott has failed to comply with the provisions of a court order that specifically established the actions necessary for him to obtain the return of the child who has been in the permanent or temporary managing conservatorship of the Department of Protective and Regulatory Services for not less than nine months as a result of the child's removal from the parent under Chapter 262 for the abuse or neglect of the child (Tex. Fam.Code Ann. § 161.001(1)(O));

• Termination of the parent-child relationship between Scott and S.A.P. is in S.A.P.'s best interest (Tex. Fam.Code Ann. § 161.001(2)).

III. Issues

Rebecca and Scott brought separate appeals. Scott initially raised five issues, and the following four issues remain:

1. Did the court err in submitting a charge that included a definition of "endanger" that commented on the weight of the evidence admitted at trial?

2. Did the court err in allowing Dr. Shinder to testify on behalf of TDPRS?

3. Did the court err in requiring Scott to be evaluated and counseled by Dr. Shinder and his associates?

5. Was the evidence legally and factually sufficient to support the jury's findings?

Rebecca brought six issues on appeal, five of which remain for consideration:

1. The evidence was legally and factually insufficient to support the jury's finding that Rebecca engaged in conduct or knowingly placed the child with persons who engaged in conduct which endangers the physical or emotional well-being of the child;

2. The evidence was legally and factually insufficient to support the jury's finding that termination was in S.A.P.'s best interest;

4. The court erred by admitting Dr. Shinder's testimony without conducting a Daubert hearing, when such a hearing had been requested;

5. Section 161.211 of the Family Code violates parents' constitutional rights to due process; and

6. When a prior termination of parental rights serves as the basis for termination in a later case, the earlier termination should have been valid.²

IV. Charge Error

In his first issue, Scott complains that the trial court erred by submitting the following definition of "endanger" in the jury charge:

"Endanger" means to expose to loss or injury, to jeopardize. It is not necessary that the conduct be directed at the child or that the child actually suffer injury. Conduct before or after the birth of the child is relevant to endangerment.

Specifically, Scott asserts that the sentence "Conduct before or after the birth of the child is relevant to endangerment" is an impermissible comment on the weight of the evidence. Scott did not object in the trial court to this definition, and TDPRS asserts that he has thus waived this complaint on appeal.

Texas Rule of Civil Procedure 274 provides in part:

A party objecting to a charge must point out distinctly the objectionable matter and the grounds of the objection. Any complaint as to a question, definition, or instruction, on account of any defect, omission, or fault in pleading, is waived unless specifically included in the objections.

Tex.R. Civ. P. 274. By not objecting to the definition in the trial court, Scott has not preserved his complaint. Tex.R.App. P. 33.1(a); In re B.L.D., 113 S.W.3d 340, 354-55 (Tex.2003) (alleged jury charge error in termination case may not be raised for first time on appeal); Castleberry v. Branscum, 721 S.W.2d 270, 276-77 (Tex.1986) (complaining party must object to charge in trial court to preserve alleged error). We overrule Scott's first issue.

V. Dr. Shinder

In Scott's second issue and in Rebecca's fourth issue, they complain that the trial court erred in admitting the testimony and evidence of Dr. James Shinder without conducting a Daubert/Robinson hearing to determine the admissibility of his testimony and evidence. See e.g., J.B., 93 S.W.3d at 619-26.

Rebecca filed a pretrial "Objection to Listed Experts and Motion for Voir Dire of Expert Witness" that made a general objection to all of TDPRS's named experts and requested a pretrial hearing on the admissibility of the testimony of the experts. Among those experts was James Shinder, Ph.D., a psychologist. In a pretrial motion-in-limine hearing held immediately before jury selection, Rebecca's attorney informed the trial court of this motion, and the trial court stated that the Daubert/Robinson motion would be heard when the issue came up at trial. When Dr. Shinder was called to testify at trial, no Daubert/Robinson hearing was requested by Rebecca or Scott, and no Daubert/Robinson hearing was held. And when Dr. Shinder testified and gave expert opinion testimony, neither Rebecca nor Scott objected to the admissibility of his expert testimony, and they did not object when Dr. Shinder's parenting assessment reports of Rebecca and Scott were offered and admitted into evidence.

To preserve a complaint that expert opinion evidence is inadmissible because it is unreliable, a party must object to the evidence before trial or when the evidence is offered.³ Kerr-McGee Corp. v. Helton, 133 S.W.3d 245, 251-52 (Tex.2004); Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 409 (Tex.1998). Without requiring a timely objection to the reliability of the expert opinion evidence, the offering party is not given an opportunity to cure any defect that may exist and will be subject to trial and appeal by ambush. Maritime Overseas, 971 S.W.2d at 409. To hold otherwise is "simply unfair" because the offering party relied on the fact that the evidence was admitted without objection. Id.

Neither Rebecca nor Scott objected to Dr. Shinder's testimony or his reports. And despite the trial court's invitation to do so, when Dr. Shinder was called as a witness, Rebecca and Scott did not request the trial court to conduct a Daubert/Robinson gatekeeper hearing outside the jury's presence on Dr. Shinder's anticipated expert opinion testimony. Having failed to object or to request a hearing when Dr. Shinder was called as a witness, Rebecca and Scott have not preserved their complaints for appellate review. Id.; Tex.R.App. P. 33.1(a); see also In re B.L.D., 113 S.W.3d at 349-55 (discussing preservation of error in termination cases). We overrule Scott's second issue and Rebecca's fourth issue.

In his related third issue, Scott complains that the trial court erred in requiring him to be evaluated and counseled by Dr. Shinder and his...