in the Interest of T.U., K.U., and K.U., Children ( 2007 )

IN THE INTEREST OF TU, KU, AND KU

NO. 07-07-0213-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL B

NOVEMBER 8, 2007

______________________________

IN THE INTEREST OF T.U., K.U., and K.U.

_________________________________

FROM THE 72^nd DISTRICT COURT OF LUBBOCK COUNTY;

NO. 2005-530,783; HON. KEVIN HART, PRESIDING

_______________________________

Memorandum Opinion

Before QUINN, C.J., and CAMPBELL and HANCOCK, JJ.

Appellant Jennifer Upton appeals from a final order terminating her parental rights to her three minor children, T.U., K.U., and K.U. In doing so, she challenges the legal and factual sufficiency of the evidence supporting the statutory grounds for termination; she does not contest the decision that termination was in the best interests of the children, however. We affirm the order of the trial court.

Standard of Review

The applicable standards of review are found in In re J.F.C., 96 S.W.3d 256, 266-67 (Tex. 2002) and In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We refer the parties to them.

Application of Standards

The court found by clear and convincing evidence that Upton 1) knowingly placed or knowingly allowed the children to remain in conditions or surroundings which endangered the physical or emotional well-being of the children, 2) engaged in conduct or knowingly placed the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children, and 3) failed to comply with the provisions of a court order that specifically established the actions necessary for her to obtain the return of the children. Sufficient evidence supporting the existence of any one of those three statutory grounds obligates us to affirm the judgment. See In re A.V., 113 S.W.3d 355, 362 (Tex. 2003) (so recognizing).

Of record is evidence of Upton's living with physically violent men. One killed a child of hers. Another physically abused her. Expert testimony revealed that exposure to such behavior can have "serious" impact upon her children. Other evidence disclosed 1) that another child was sexually abused by another youth's father while in Upton's care, 2) that a child had died from medical conditions while in her care, 3) that two of her children previously had been removed from her care, 4) that Upton had habitually ingested controlled substances (as did one or more of the men with whom she and her children lived), 5) that she drove while intoxicated and succumbed to an accident with at least one child in the car, 6) that she had been incarcerated over 20 times for such crimes as possession of controlled substances, public intoxication, DWI, credit card abuse, and theft with a credit card, 7) that repeated criminal conduct can have an adverse affect upon the well-being of children, 8) that she could not provide a stable home, 9) that she knew of her deficiencies and could not correct, but only repeat, them, 10) that she had left her young children alone in a motel room while working (though she purportedly asked another motel guest to watch them), 11) that she had left her children unsupervised in a bath tub while knowing that one enjoyed playing with the faucet, 12) that one of her children was severely burned when left unsupervised in the bathtub, 13) that she would not have taken her burned child to obtain medical treatment had she known that the State was to become involved in the incident, 14) that she was not capable of making decisions necessary to successfully raise children, 15) that she had already relinquished her rights to three of her children, 16) that she routinely left her children in the care of her physically violent 17 year old, drug abusing boyfriend (Upton was over thirty), 17) that Upton and her children were evicted from an apartment after engaging in a domestic disturbance with her 17 year old boyfriend, 18) that she would change addresses without notifying CPS, 19) that she failed to complete a drug and alcohol assessment as required, 20) that she would focus on only one of the children while leaving the others unsupervised during visitations by CPS workers, 21) that her children had emotional/behavioral problems, and 22) that she failed to attend the final hearing to decide termination although she had been notified of its date. Finally, the evidence indicates that the children in question were four, two, and two years old.

As previously mentioned, one of the grounds found to justify termination involved Upton's engaging in conduct or knowingly placing the children with persons who engaged in conduct which endangered the physical or emotional well-being of the children. See Tex. Fam. Code Ann. §161.001(1)(E) (Vernon Supp. 2006). To satisfy it, the State need not have proved that the children at issue here were the focus of the conduct or that they were actually harmed by it. In re C.J.F. 134 S.W.3d 343, 351 (Tex. App.-Amarillo 2003, pet. denied). Rather, proof that Upton pursued a course of conduct having the effect of endangering her children sufficed. See id. And, the evidence we itemized above does just that. In other words, it provided the trial court ample basis upon which to form a firm conviction and belief that Upton engaged in conduct or knowingly placed the children with persons who engaged in conduct endangering the physical or emotional well-being of T.U., K.U. and K.U. See In re S.P., 168 S.W.3d 197, 204-05 (Tex. App.-Dallas 2005, no pet.) (finding the evidence legally sufficient when there were incidents of domestic violence, the mother lacked parenting skills and judgment and failed to take her medication, and there was evidence one or two children not the subject of the termination had been sexually molested by the father but the mother did not believe the children were endangered). And, while it may be that other evidence showed that she of late maintained employment, attended visitations with her children, and actively participated in therapy and counseling when she attended, that evidence did not require the trial court to ignore the history of endangerment to which the children had been exposed.

In sum, legally and factually sufficient evidence supported at least one statutory ground upon which termination was based. Accordingly, the order of termination is affirmed.

Brian Quinn

Chief Justice

he court consider or discuss Martinez. 592 S.W.2d at 400 (holding that a trial court order requiring a party to furnish authorization for opposing attorneys to view medical records did not involve the making of a non-existent record). Moreover, Colonial Pipeline, 968 S.W.2d at 938, is not controlling as to medical records because it did not involve an authorization for medical records, which at the time of the opinion, was authorized by former Rule 166b(2)(h).

Employment Records

Relator did not object to production of employment records on the ground of relevance. Instead, relator contended that the requested authorization was overbroad. In the absence of an objection on the ground of privilege or relevance, employment records are subject to discovery under Rule 192.3(a), which provides that a party may obtain discovery of any matter that is not privileged and is relevant. Further, under Rule 192.3(b), records or tangible things in the custody or control of a party are subject to production. (Emphasis added). Additionally, the right to possession of a record that is equal or superior to the party who has physical possession of the record constitutes possession for purposes of this rule. Rule 192.7(b).

Moreover, relator objected to the requests for medical and employment records on the ground that the requests were overbroad. She did object to signing authorizations for medical or employment records on the ground that it would require her to prepare a non-existent record. According to the record, it appears that relator signed and provided a limited medical authorization, but the trial court expanded the time and scope of the authorization by paragraph one of the order. Mandamus will not issue to compel a trial judge to do what he or she has not been requested to do. Owens-Corning Fiberglas v. Caldwell, 830 S.W.2d 622, 624 (Tex.App.-Houston [1^st Dist.] 1991, no writ). This record fails to demonstrate that relator presented these contentions to the trial court. For all of the above reasons, relator's first issue is overruled.

By her second issue, relator contends the trial court abused its discretion in overruling her objections to requests for production that (b), (g), (j), (l), (m), (o), (u), (v), (w), and (x) were overbroad and lacked specificity. Before we consider the ten requests, we first review some of the relevant rules and authorities.

The Texas Rules of Civil Procedure authorize discovery into any relevant matter that is not privileged and is reasonably calculated to lead to the discovery of admissible evidence. Rule 192.3. However, in Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990), the Court stated that:

this broad grant, however, is limited by the legitimate interests of the opposing party to avoid overly broad requests, harassment, or disclosure of privileged information.

(Emphasis added). Additionally, in American Optical, 988 S.W.2d at 713, in discouraging "fishing expeditions," the court held "requests must be reasonably tailored to include only matters relevant to the case." (Emphasis added). Similarly, parties responding to discovery are also encouraged to utilize reasonably tailored responses to discovery requests. See Id. Accordingly, a party responding to discovery:

cannot simply make conclusory allegations that the requested discovery is unduly burdensome or unnecessarily harassing. The party must produce some evidence supporting its request for protective order.

In re Alford Chevrolet-Geo, 997 S.W.2d 173, 181 (Tex. 1999). In its review of the discovery process in American Optical, 988 S.W.2d at 713, the Court concluded that the latitude afforded the parties in the discovery process is not unlimited, and "the trial court must make an effort to impose reasonable discovery limits." Alford Chevrolet-Geo, 997 S.W.2d at 181. Parties seeking or objecting to discovery are expected to cooperate and make any agreements "reasonably necessary for the efficient disposition of the case." (Emphasis added). Rule 191.2. Although the use of so called "stock" or "boiler plate" discovery initiatives or responses is common practice, these authorities suggest that requests or responses should be custom tailored to the specific case, otherwise the interest of judicial economy will not be served and the objective that discovery be conducted on a case by case basis will be thwarted.  

Overbroad Requests

Real party's requests (b), (g), (l), (m), (o), and (u) sought production of various documents or records without any limitation as to time. Relator objected to these requests with conclusions that they were overbroad and lacked specificity without any explanation of the reasons or argument. In Texaco, Inc. v. Sanderson, 898 S.W.2d 813, 815 (Tex. 1995), the Court held that a request for records "without limitation as to time, place or subject matter, is overbroad." ⁽⁴⁾ Here, these requests for production (b), (g), (l), (m), (o), and (u) are overbroad "on their face" according to the Court in Texaco. ⁽⁵⁾

Work Product

In addition to the objection that the requests are overbroad, relator objected to requests (j), (v), and (w) on the grounds of work product privilege, but respondent overruled the objections. Assertion of a privilege is not a ground for a motion for protective order or an objection. See Rule 192.6(a). Instead a party desiring to assert a privilege must proceed as set out in Rules 193.3 and 193.4. Because the question of work product privilege was not before the respondent, those objections remain subject to presentation if relator elects to proceed according to Rules 193.3 and 193.4. Relator's second issue is sustained, except as to request (x), which was limited as to time.

Accordingly, the writ of mandamus is conditionally granted in part and denied in part. Although we have jurisdiction to direct the trial court to proceed to make an effort to impose reasonable discovery limits, we may not tell the court what limits it should enter. In re Martinez Ramirez, 994 S.W.2d 682, 684 (Tex.App.-San Antonio 1998, no pet.). The trial court is directed to consider and determine, in the exercise of its discretion, the need for reasonable discovery limits as to requests (b), (g), (l), (m), (o), and (u); otherwise the writ is denied. The writ will issue only if the trial court fails to comply with these instructions.

Don H. Reavis

Justice

Publish.

1. All references to rules herein are to Texas Rules of Civil Procedure.

2. Production of medical records of non-parties is now covered by Rule 196.1(c).

3. See 6 William Dorsaneo III, Texas Litigation Guide § 90.02[5][k] (2001); See also 3 Roy W. McDonald & Elaine A. Grafton Carlson, Texas Civil Practice §12.19 (2d ed. 2000).

4. The term overly broad as used in Axelson, Inc. v. McIlhany, 798 S.W.2d 550, 553 (Tex. 1990), and the term over broad as used in Texaco is not defined in the opinions or the discovery rules, however it appears that it would be good practice to state the reasons supporting an objection that the request is overbroad as to (1) time, (2) place, or (3) subject matter.

5. Because the objections that the requests were overbroad should have been sustained, we need not address the objection as to specificity.