in the Interest of O.D. and A.D.-A. ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-22-00104-CV
________________
IN THE INTEREST OF O.D. & A.D.-A.
________________________________________________________________________
On Appeal from the County Court at Law No. 3
Montgomery County, Texas
Trial Cause No. 20-08-09148-CV
________________________________________________________________________
MEMORANDUM OPINION
The Texas Department of Family and Protective Services (“the Department”)
initiated suit to involuntarily terminate Father’s parental rights to his children,
“Oliver” and “Alex” based on Texas Family Code subsections 161.001(b)(1)(D) and
(E). 1 See Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E). Maternal grandfather
intervened (“Intervenor”) and requested that he be named the children’s conservator.
Following a jury trial, the trial court terminated Father’s parental rights to his
1In parental rights termination cases, to protect the identity of the minors, we
refer to the children and their family members by a pseudonym or initials. See Tex.
R. App. P. 9.8(b)(2).
1
children, based on subsections (D) and (E) and a finding that termination was in
Oliver and Alex’s best interest.2 See id. § 161.001(b)(1)(D) and (E), (b)(2). When
asked who should be the conservator between the Intervenor and the Department,
the jury found the Department should be named as permanent managing conservator
for both children. Father and Intervenor appealed.
In three issues, Father contends: (1) the trial court erred in denying his Motion
for New Trial based on improper jury argument; (2) the trial court erred in granting
Intervenor’s Motion for Leave to File Second Amended Petition in Intervention at
the time of trial; and (3) the trial court’s Order of Termination is void, because the
trial court failed to make the requisite findings under Texas Family Code section
263.401 in two extension orders.3 Intervenor contends that two of the trial court’s
orders were void, because it failed to make the requisite findings per Texas Family
Code section 263.401 in its extension orders; therefore, the orders extending the
dismissal date were not valid, and the case was automatically dismissed. Prior to this
appeal Appellants never moved for an extension pursuant to or citing section
263.401 or complained about the absence of the “extraordinary circumstances” or
2The trial court terminated Mother’s rights, but she is not a party to this appeal.
3Father adopted Intervenor’s briefing on the extension issues. See Tex. R.
App. P. 9.7 (permitting parties to adopt briefing of other parties in whole or part on
appeal).
2
“best interest” findings. As discussed more fully below, we affirm the trial court’s
judgment.
I. Background and Facts Leading to Removal
The Affidavit in Support of Removal stated that in August 2020, four-month-
old Alex presented to Texas Children’s Hospital (“TCH”) in the Woodlands with
significant injuries, including bilateral subdural hematomas (brain bleeds), multiple
broken ribs in various stages of healing, and retinal hemorrhages in both eyes.
Medical providers suspected non-accidental trauma and potential child abuse.
Mother’s recited history did not correlate to Alex’s injuries. Alex was transferred to
TCH’s main campus in the Medical Center because he needed more intensive
treatment and further testing. TCH’s Child Abuse Pediatric (“CAP”) Team became
involved, and after running multiple tests, determined Alex’s injuries were
consistent with child abuse and having been shaken. Accordingly, the Department
filed its Petition, sought removal, termination, and conservatorship of Alex and his
older brother, Oliver. Mother ultimately signed an Affidavit of Voluntary
Relinquishment as to both children.
II. Jurisdiction
Appellants contend the trial court’s extension orders on July 27, 2021, and
October 8, 2021, failed to contain the requisite findings pursuant to section 263.401,
thus invalidating the extensions, and therefore, the case was automatically dismissed
3
which made the trial court’s termination order void. 4 Intervenor acknowledges, as
he must, that the first extension constituted a “covid extension.” Because Intervenor
and Father argue this issue impacts jurisdiction, we address it first.
A. Procedural Background
On August 3, 2020, the Department filed its Original Petition for Protection
of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-
Child Relationship, and the trial court signed an Order appointing the Department as
Temporary Managing Conservator the same day, which started the clock for the one-
year dismissal deadline. See id. § 263.401(a). After a full adversary hearing, the trial
court signed Orders noting an August 5, 2021 dismissal date and June 23, 2021 trial
date. 5 In May 2021, Intervenor filed his Petition in Intervention and two Motions for
Continuance and Extension of Dismissal Date. These Motions for Continuance and
Extension of Dismissal Date did not cite to section 263.401 as the basis for
requesting the extension nor did it argue “extraordinary circumstances” existed. See
id. § 263.401(b). Intervenor submitted a proposed order, which the trial court did not
4Father adopted Intervenor’s briefing regarding the extensions and
jurisdictional issues.
5Our calculations show that the actual dismissal date in this case would have
been August 9, 2021; however, that four-day distinction makes no difference to the
result of this case. So, for the purpose of our analysis, we will use the date contained
in the clerk’s record.
4
sign. However, the clerk’s record reveals the original trial date was moved to July
27, 2021.
On July 27, 2021, counsel appeared and announced ready for trial. The
reporter’s record indicates that Father was not transported to the courthouse from
jail, despite an advanced request. After discussion, the parties agreed to reset the
matter to August 16, 2021, and the trial court announced, “I’m going to exten[d] it
under the most recent emergency order. So I’ll just extend it. Six-month extension.”
Before the hearing concluded, given the unavailability of certain witnesses for the
first reset date, the trial court reset the matter to August 31, 2021. No written order
was signed at the time of this extension, but 180 days from the original dismissal
date would have made the extended dismissal deadline February 1, 2022. A notation
on the docket sheet for July 27 also indicates the case was extended.
The record also contains an Order Granting Extension signed October 8, 2021,
and the Order contained the following language:
Pursuant to the Texas Supreme Court Order authorizing
extensions for Covid, the Court finds that, after considering the facts
and evidence of this matter, circumstances necessitate the children,
[Oliver] and [Alex], remain in the temporary managing conservatorship
of the Texas Department of Family and Protective Services, (the
“Department”), and that continuing the appointment of the Department
as temporary managing conservator is in the best interest of the
children.
This Order noted a dismissal date of February 1, 2022, and a trial date of January
24, 2022. Appellants contend this Order likewise does not contain the requisite
5
“extraordinary circumstances” finding, and nonetheless, it was signed after the first
dismissal date expired. Ultimately, Appellants contend that because the trial court’s
oral extension did not contain the requisite findings and a subsequent written order
was not signed until after the August dismissal date, the trial court had already lost
jurisdiction and could not revive it. However, it should again be noted that at no time
prior to the appeal did Appellants ever move for an extension pursuant to or citing
section 263.401 or complain about the absence of the “extraordinary circumstances”
or “best interest” findings.
B. General Law in Termination Cases
The Family Code requires a court to commence trial on the merits by the first
Monday after the first anniversary of the date the court renders a temporary order
appointing the Department temporary managing conservator or the court’s
jurisdiction is terminated and the suit is automatically dismissed without a court
order. See id. § 263.401(a). Under section 263.401, a trial court may not retain the
suit on its docket beyond the time described unless “the court finds that extraordinary
circumstances necessitate the child remaining in the temporary managing
conservatorship of the department and that continuing the appointment of the
department as temporary managing conservator is in the best interest of the child.”
Id. § 263.401(b). If the court makes those findings, it may retain the matter on its
docket for a period not to exceed 180 days. Id. Also pertinent to this inquiry is Family
6
Code section 101.026, which allows trial courts to render orders by pronouncing its
ruling orally in the presence of the court reporter or in writing on its docket sheet or
by separate written instrument. See id. § 101.026; Interest of G.X.H., 627 S.W.3d
288, 299 (Tex. 2021) (noting rule and stating it applies to a trial court’s findings
under section 263.401).
C. Emergency COVID-19 Orders and Applicability to this Proceeding
During the COVID-19 pandemic, the Texas Supreme Court issued multiple
Emergency Orders that impacted how courts managed cases and provided for the
retention of termination cases on their dockets. This series of Emergency Orders in
response to the COVID-19 pandemic “permitted trial courts to suspend the deadlines
and procedures in Section 263.401.” C.C. v. Tex. Dep’t of Fam. & Protective Servs.,
No. 03-21-00587-CV, 2022 WL 1121428, at *2 (Tex. App.—Austin Apr. 15, 2022,
no pet.) (mem. op.) (citations omitted).
Appellants acknowledge the initial extension on July 27, 2021, was a COVID
extension yet argue the trial court’s oral order did not include the requisite findings
required by section 263.401(b). They further contend the Twenty-Ninth Emergency
Order applied. See Twenty-Ninth Emergency Order Regarding the Covid-19 State
of Disaster, 629 S.W.3d 863, 863–64 (Tex. 2021). However, at the time the trial
court orally rendered the extension, the Texas Supreme Court’s Thirty-Eighth
7
Emergency Order was in place. 6 See Thirty-Eighth Emergency Order Regarding the
COVID-19 State of Disaster, 629 S.W.3d 900, 900–01 at ¶15 (Tex. 2021) (noting
effective dates of May 26 to August 1, 2021). 7 This distinction is significant.
Beginning with the Eighteenth Emergency Order, the Supreme Court required
initial extensions of the dismissal date “in all proceedings” under Subtitle E, Title 5
of the Family Code comply with section 263.401, whereas prior orders did not. See
Eighteenth Emergency Order Regarding the COVID-19 State of Disaster, 609
S.W.3d 122, 122–23 (Tex. 2020); C.C., 2022 WL 1121428, at *3. Specifically, the
Eighteenth Emergency Order provided:
b. in all proceedings under Subtitle E, Title 5 of the Family Code:
(i) extend the initial dismissal date as calculated under Section
263.401(a) only as provided by Section 263.401(b) or (b-1);
(ii) for any case previously retained on the court’s docket
pursuant to Section 263.401(b) or (b-1), or for any case whose
dismissal date was previously modified under an Emergency
Order of this Court related to COVID-19, extend the dismissal
for an additional period not to exceed 180 days from the date of
this Order[.]
6 Intervenor’s brief acknowledges the trial court orally rendered this extension
on July 27, 2021, and that the Twenty-Ninth Emergency Order expired on February
1, 2021.
7 The Fortieth Emergency Order entered on July 19, 2021 did not go into
effect until August 1, 2021. See Fortieth Emergency Order Regarding the COVID-
19 State of Disaster, 629 S.W.3d 911, 913 ¶8 (Tex. 2021) (noting effective date of
August 1, 2021).
8
See Eighteenth Emergency Order, 609 S.W.3d at 122–23, ¶3(b) (emphasis added).
This continued until the Thirty-Eighth Emergency Order, which limited the
requirement that extensions of the initial dismissal date under the current Emergency
Order “only as provided by Section 263.401(b) or (b-1)” to actions filed on or after
May 26, 2021. See Thirty-Eighth Emergency Order Regarding the COVID-19 State
of Disaster, 629 S.W.3d 900, 900–01 at ¶4 (Tex. 2021) (effective May 26 through
August 1, 2021). The Thirty-Eighth Emergency Order provided in pertinent part
4. In any proceeding under Subtitle E, Title 5 of the Family Code, all
deadlines and procedures must not be modified or suspended, unless
permitted by statute, after August 1, 2021, except the dismissal date
may be extended as follows:
a. for any such proceeding that, on the date of this Order, has a
dismissal date that was previously modified under a prior
Emergency Order Regarding the COVID-19 State of Disaster,
the court may extend the dismissal date for a stated period ending
no later than December 1, 2021;
b. for any such proceeding that, on the date of this Order, has
been previously retained on the court’s docket pursuant only to
Section 263.401(b) or (b-1), the court may extend the dismissal
date for a stated period ending no later than February 1, 2022;
c. for any such proceeding that, on the date of this Order, has not
been previously retained on the court’s docket pursuant to
Section 263.401(b) or (b-1), the court may extend the initial
dismissal date as calculated under Section 263.401(a) for a stated
period ending no later than April 1, 2022; or
d. for any such proceeding that is filed on or after the date of this
Order, the court may extend the initial dismissal date as
calculated under Section 263.401(a) only as provided by Section
263.401(b) or (b-1).
9
Id. (emphasis added). As of May 26, 2021, this case had not been previously retained
on the docket pursuant to section 263.401(b) or (b-1), therefore paragraph 4(c)
applied. See id. Although paragraph 4(c) contained language incorporating section
263.401 in the calculation of the dismissal date, it did not include language that
allowed for an extension “only as provided by Section 263.401(b) or (b-1).” Id.
¶4(c). Paragraph 4(d), however, contained such language and only applied to
proceedings “filed on or after May 26, 2021.” Id. at ¶4(d).
The Thirty-Eighth Emergency Order did not necessitate the findings of
“extraordinary circumstances” and “best interest” pursuant to section 263.401 when
it granted the initial extension of the dismissal date, only that the calculation of dates
be consistent with 263.401 and could not end later than April 1, 2022. See id.; see
also Tex. Fam. Code Ann. § 263.401(b). On July 27, 2021, the trial court properly
granted an extension of the dismissal date to February 1, 2022, pursuant to the
Thirty-Eighth Emergency Order when it orally pronounced and made a
corresponding entry on the docket sheet for a six-month extension.8 See Thirty-
Eighth Emergency Order Regarding the COVID-19 State of Disaster, 629 S.W.3d
8Months later, the trial court noted incorrectly on the record that the original
dismissal deadline was July 29, 2021, and the new dismissal deadline was January
25, 2022, seemingly counting the extension from the date of the hearing rather than
the initial dismissal date.
10
at 900–01, ¶4(c); see also Tex. Fam. Code Ann. § 101.026; In re G.X.H., 627 S.W.3d
at 299.
On October 8, 2021, prior to the expiration of the new dismissal date of
February 1, 2022, Intervenor’s counsel filed a Motion for Continuance, which noted
a new trial setting of January 24, 2022. The trial court signed an Order Granting
Extension the same day again noting a dismissal date of February 1, 2022, which did
not alter the dismissal date provided by the July 27, 2021, extension. Despite
Appellants’ complaints regarding this written order, the matter had already
effectively been retained on the trial court’s docket until February 1, 2022, by the
trial court’s oral rendition on July 27, 2021, pursuant to the Thirty-Eighth Emergency
Order.
We would be remiss not to address our recent opinion in Interest of F.S.,
where we addressed 263.401 and held:
the findings may be inferred when the record shows a party filed a
written motion before the automatic-dismissal deadline, asked the trial
court to retain the case on its docket under Family Code section 263.401
because extraordinary circumstances and good cause required it do so,
the trial court orally granted the motion, and the statements made by the
court during the hearing support inferring the trial court found the
grounds alleged in the motion for extending the automatic-dismissal
deadline had merit.
Interest of F.S., No. 09-22-00114-CV, 2022 WL 4371008, at *1 (Tex. App.—
Beaumont Sept. 22, 2022, no pet. h.). Key distinctions in that case allowed the court
to imply the requisite findings. In the case before us, the trial court expressly stated
11
it granted the extensions pursuant to Emergency Orders rather than 263.401.
Whereas, in Interest of F.S., the parties asked the trial court to retain the case on its
docket pursuant to section 263.401 and argued “extraordinary circumstances”
existed. See id. That is not the case here. Intervenor’s Motions for Continuance and
Extension of Dismissal Date do not mention 263.401 nor do they argue
“extraordinary circumstances” existed. Even if we implied such findings, as the
Department argues we must, in the matter before us it is a distinction without a
difference. Under its theory, the July 27 extension would be valid. We have already
concluded as much, although it was done pursuant to an Emergency Order rather
than 263.401, and the case’s dismissal date was extended to February 1, 2022.
We hold the Thirty-Eighth Emergency Order did not require the trial court to
make the section 263.401 “extraordinary circumstances” finding prior to granting an
extension. We overrule Father and Intervenor’s issues pertaining to the trial court’s
orders of July 27, 2021, and October 8, 2021.9
9As noted, while this case was pending in the trial court, several Texas
Supreme Court Emergency Orders that resulted from the COVID-19 pandemic
affected the trial court’s deadlines, and the trial court granted subsequent extensions
pursuant to these Emergency Orders. That said, Father and Intervenor have not
complained about the trial court’s rulings on the later extensions and for that reason,
we have not addressed them in the appeal. See Interest of F.S., No. 09-22-00114-
CV, 2022 WL 4371008, at *2 n.9 (Tex. App.—Beaumont Sept. 22, 2022, no pet. h.).
12
III. Trial Proceedings and Evidence
A. Trial Amendment
The day trial began, Intervenor, who had only sought conservatorship,
indicated he wished to adopt the Department’s pleadings and add termination to his
Petition in Intervention. The same day, he requested leave to amend by filing a
Motion to Adopt Petitioner’s Pleadings Regarding Termination of Parental Rights
and his Second Amended Petition in Intervention. The Second Amended Petition in
Intervention added D and E termination grounds, which the Department already
pleaded. See Tex. Fam. Code Ann. § 161.001(b)(1)(D) and (E).
Father objected to the amendment, arguing it was untimely and that it failed
to subserve presentation of the case per Rule 66. He also objected arguing it asserted
a new cause of action, which was prejudicial as a matter of law. Intervenor responded
that leave to amend should be freely given, there was no prejudice to Father as the
State sought the same thing with termination. Intervenor further noted that despite
being a party for a year, Father failed to send him any discovery. Intervenor argued
there were no new witnesses or evidence.
The trial court allowed Intervenor’s amendment and overruled Father’s
objections. The trial court indicated the amendment would not change what was in
the jury charge. It also explained that Intervenor seeking termination was not a new
cause of action in this case, as Father was already responding to the State’s
13
termination. The trial court noted that even if it was a new cause of action, it did not
“reshape[] the lawsuit at all” or change what Father was responding to. The trial
court further reasoned that given the procedural posture, this was not unanticipated,
Father had appointed counsel to defend it, and there was no prejudice.
B. Testimony and Evidence
James Dorchak
CPS Investigator James Dorchak testified that the family had a prior history
with the Department, stemming from allegations of domestic violence between
Father and Mother in 2018, that Father set Intervenor’s house on fire, and concerns
Oliver may have been in the home at the time. The allegations were ruled out, since
they learned the child was not home when the incident occurred. As a result, Mother
obtained a protective order. According to Dorchak, the Department closed that case
with an order of protection prohibiting Father from accessing the child.
In August 2019, the Department received another report that Mother was no
longer being protective of Oliver and allowed Father to access the child. The
Department conducted a family team meeting and offered domestic violence
services to Mother, and during that investigation, they determined Intervenor could
not protect them. The Department offered Family Based Safety Services (“FBSS”),
which Mother participated in, but Father did not since he was incarcerated. The
14
Department advised Mother she needed to stay away from Father for the child’s
safety.
Dorchak testified he became involved with the family on August 2, 2020,
when the Department received another intake. At that time, the intake was that Alex
had sustained serious bodily injury “including six rib fractures, two subdermal
hematomas . . . [c]hild was currently admitted into Texas Children’s, and there was
[sic] concerns about abuse.” He testified he first spoke with Dr. Swabena Sarpong
from TCH then to Mother. Dorchak explained that Mother’s story changed when
they spoke to her, from initially denying that Father knew where she lived to
ultimately admitting that Father was in the room where this occurred. Dorchak
explained that he did not speak with Father, since he was the alleged perpetrator, so
a detective and a special investigator handled his interview. They appointed a special
investigator in August 2020 given the serious bodily injury per Department policy.
Dr. Sarpong told them that Alex had x-rays taken about thirty days before,
which did not show any rib fractures or other injuries. So, Alex’s injuries occurred
sometime between mid-July and August 1 and were “in various stages of healing.”
The disposition from the August 2020 intake was “reason to believe” which was
based on information from TCH, the Sheriff’s Office, and Special Investigator
Oliveri’s documentation. Dorchak testified that Alex was the victim of the physical
15
abuse, not Oliver. Dorchak agreed the medical evidence showed Alex was abused
but did not indicate who did it.
Dorchak testified that when a parent abuses the other parent but is not
physically abusing the child, it still harms the child and explained why. He said the
same was true if a parent abused one child; it would negatively impact the non-
abused child and their emotional well-being.
During the investigation, Mother recommended Intervenor as a possible
placement for the children, but Dorchak learned he had been charged with assault
for allegedly hitting Mother. The Department denied placement with Intervenor due
to the assault charge.
Dr. Sarpong
Dr. Sarpong is employed by Baylor College of Medicine and works at TCH.
He is an associate professor of pediatrics and the medical director of the child head
injury program at TCH. Dr. Sarpong is board certified in child abuse pediatrics by
the American Board of Pediatric Subspecialties and American Board of Pediatrics.
He is a member of the CAP Team. Dr. Sarpong described the CAP process, which
included a head-to-toe exam of the child, obtaining a full history from the parents,
reviewing x-rays and lab information, requesting any additional testing, reviewing
lab tests and information, then reaching a conclusion.
16
Dr. Sarpong treated Alex at TCH and testified that his injuries were
“consistent with child physical abuse.” Dr. Sarpong based that opinion on Alex’s
age and the multiple injuries he sustained, and a baby that age would not be able to
cause those injuries by himself. Dr. Sarpong discussed the tests they performed and
described Alex’s injuries in detail, including subdural hematomas, lung injuries and
areas indicative of chest compression, rib fractures that were at least two weeks old,
and hemorrhaging in the back of both eyes near the retinas. He explained that for
those injuries to occur in the eye, it meant there was a back-and-forth type motion
that could occur when someone shook the baby or if the patient had been in a “very-
high impact motor vehicle accident.” He also explained that there was bleeding in
the brain bilaterally, some newer bleeding and some older.
Dr. Sarpong testified it was important to determine if there had been accidents
in the past that could explain the injuries. He and his team ruled out a fall or car
accident as potential causes of Alex’s injuries. Dr. Sarpong noted that a simple fall
would not account for these injuries, particularly the amount of bleeding on the brain.
He said the injuries were inconsistent with a car accident as well. Nothing he
reviewed provided a plausible explanation for these injuries.
Dr. Sarpong explained since some of the injuries were healing, that meant the
child was a victim of abuse not once, but multiple times. Dr. Sarpong could not say
how long the abuse had been happening but could tell some rib fractures were more
17
than two weeks old, and the brain bleeding and eye bleeding were likely new injuries
that happened around the same time the child felt very sick. He also discussed Alex’s
history of other medical problems but indicated they were not “substantial.”
With respect to long-term ramifications for Alex, Dr. Sarpong testified,
So the long-term implications of this head injury would be
developmental delay. Developmental delay meaning some of the kids
would – especially in the brain -- would have problems with speech,
with walking, with talking. And so those are some of the things that are
long-term. The other issue is that we normally -- we would follow these
kids up for a very long period of time because what we also know is
that when some of these kids start getting to school, they have problems
with behavior. They could have problems with solving complex
problems as well. So we normally do follow these kids for very long
period of time. And so those are some of the long-term problems that
you could have with these children.
Dr. Sarpong continues to follow Alex and saw him in clinic about a month before
trial. He testified Alex still needs occupational therapy and speech therapy but
recently graduated from physical therapy.
Detective Michael Lee
Lee is a major crimes detective with the Montgomery County Sheriff’s Office,
child abuse unit. Lee was the detective who handled the investigation into Alex’s
injuries. He, Dorchak, and Special Investigator Oliveri were present and spoke with
medical staff at TCH, then interviewed Mother. Lee said they first tried to establish
who had access to Alex and whether there was a plausible explanation for the
injuries. Lee testified that Mother’s story changed from her initial claim that she was
18
the only person to have access to him to ultimately admitting she was cohabitating
with Father and had been since Alex’s birth.
Shortly after arriving at the hospital, he learned about Father’s criminal
history and that there was a protective order in place. Within a couple of days,
Mother reached out and said she had not been completely honest, so they made an
appointment to interview her again. When they spoke with Mother again, Father had
already been arrested for violating the protective order. Lee testified that Mother told
them she would not defend Father, she had been the victim of domestic violence,
and she observed him do some things to the kids that did not seem right which she
chastised him about. Lee said Mother described Father punching Alex in the ribs and
spinning him around by the “scruff” of his neck and had her demonstrate those things
on a doll in the interview. Mother told Lee that Father did not like being around Alex
because he cried often, and Father doubted his paternity.
According to Lee, Mother reported Father did it and gave a very plausible
explanation that she witnessed the abuse. Mother did not accept responsibility for
Alex’s injuries but indicated she should have been more protective. Lee did not
believe Mother was blaming Father for something she did. During the first interview,
investigators approached it as if Mother was the abuser but did not see any indicators
of that. Lee testified that Mother lied a lot but seemed to protect Father and not want
them to know they lived together because of the protective order. Lee believed that
19
Mother was a victim of domestic violence. Lee testified they spoke with Intervenor,
who was familiar with the domestic violence and relationship.
Lee said they also interviewed Father in the Harris County Jail. Lee testified
that Father took responsibility for causing Alex’s injuries and claimed it was
something he had done by accident when he was playing with the child and described
the type of play he claimed caused the injuries. Father complained the baby would
not stop crying when he took care of him and claimed the baby had “anger
problems.” Lee concluded at the end of the investigation that “there was ample
evidence to believe [Father] had abused the child and caused those
injuries[.]”According to Lee, two people said Father was responsible for the injuries,
and Father was one of them. They determined there was probable cause sufficient to
bring charges against Father for injury to a child, and they filed a formal complaint.
Lee explained that the medical evidence alone would not tell them whether it
was Mother or Father who caused the injury; they had to weigh that evidence against
the statements given. Lee testified that Father never told him he intentionally harmed
Alex, but Father implied he knew with certainty he caused Alex’s injuries. Lee
agreed Mother lied during initial interviews and that she lied a lot.
Myrissa Hutchison
Hutchison testified she is employed by the Department as a CPS caseworker
and has been assigned to this case for a year and a half. She said the children are in
20
a foster home and doing very well. Hutchison testified that physically, Alex is doing
well and hitting most of his milestones but is a little behind with speaking. There are
no current health issues with him that they are worried about. She testified Alex
would require physical therapy, possibly occupational therapy, and speech therapy
plus he had ongoing neurology appointments.
Hutchison expressed concerns over Oliver’s speech delay, which may be
made worse by a “tongue tie” and require a medical procedure. There is also concern
that Oliver may be on the autism spectrum, which will require further evaluation
when he turns four. Hutchison testified there were never any allegations Father
abused Oliver.
Hutchison explained that a parent’s criminal history is a concern because it
could show behaviors that endanger children. Hutchison testified they also consider
protective orders, because there has been an act or circumstance putting the children
at risk. Hutchison explained that Father’s criminal history involved domestic
violence and injury to a family member, which is concerning because children who
witness that can be affected emotionally as it can cause anxiety. The abuse impacts
the physically injured child and children who are around when it occurs. Hutchison
testified that when she visited Father in jail, he seemed most interested in Oliver and
did not seem to have as much of a bond with Alex.
21
Father’s Testimony
Father testified that Oliver and Alex are his children. He said he began living
with Mother and the children in early 2020 and lived there when Alex was born.
They all shared a one-bedroom apartment and slept in the same room. Father’s
brother also lived with them, and he did not work, so he was home most of the time.
Father testified he helped change Alex’s diapers, but only after a couple of minutes,
Alex would get “very fussy.” Father testified that he was bonded to his children and
loved them.
Father testified that on the morning of August 1, Alex started crying in his
crib. Mother was still in bed, so he picked up Alex and started playing with him, but
when he would not stop crying, Father gave him to Mother. Father said as he walked
out of the room, Mother said Alex was not breathing. Father testified he examined
Alex to see what was wrong and called 9-1-1, but they put him on hold while Mother
sat there not doing anything. He did not notice the baby had difficulty breathing until
Mother said something, then he called 9-1-1 immediately. In certain areas, he felt
Mother was a bad mom but did not have concerns about leaving both children alone
with her. Father testified that nobody told him that any of Alex’s injuries occurred
on August 1.
Father testified the children are doing great in foster care, and he did not want
them to be removed from foster care or to change their placement. Father explained
22
why he did not want his rights terminated and felt he could support his children in
ways others could not, because he had been through the system. Father asked that
the jury award custody to the Department.
Father described his relationship with Mother as “bumpy” and “distrustful.”
According to Father, Mother had a problem with honesty. Father testified he and
Mother smoked “weed” together after Alex’s birth. He denied he assaulted Mother
and testified Intervenor did not like him. Father attempted to explain the assault
charge against Intervenor and testified that he broke into Intervenor’s home to look
for medical records.
Father testified he agreed to the interview with Detective Lee but denied he
told Lee that he abused Alex. Father explained that he had not spoken with the doctor
or hospital at the time of the interview, only Mother, who just told him Alex’s ribs
were bruised. Father said he told Lee that he was playing with the baby and had
thrown him in the air and caught him on his side, but Lee said that was not enough
to cause his injuries; he said the detective took his words out of context. Father
confirmed he told Lee that he felt Alex had anger issues. Father said he did not know
if he caused Alex’s injuries. Father testified that in the weeks leading up to the
incident, he noticed blood in Alex’s eye and asked Mother about it, but she
responded the baby must have burst a blood vessel from crying too hard.
23
Father said he had been diagnosed with oppositional defiant disorder, bipolar
disorder, and depression and used to take medications for them but does not
currently. Father testified the worst thing is his son is injured, nobody really knew
who the perpetrator was, and he is being blamed.
Debbie Hamilton
Hamilton was the guardian ad litem and CASA for the children. Hamilton was
first assigned the case in August 2020. She visited Alex at TCH and described his
injuries. She testified he cried as if he were in pain, so she picked him up and rocked
him for several hours. The family had been excluded from the hospital room at that
time. Hamilton explained that Alex remained in the hospital for about seven days.
She also discussed the medical appointments she attended with the children.
Hamilton met with Father in jail, and he told her he loved his children and would
not give them up.
Hamilton testified that based on her research, she believed Detective Lee. She
said she did not feel that the children should be tethered to Father and did not believe
Grandfather should have any rights. She testified that various family members had
multiple opportunities to protect the children which did not happen, and the children
have been through so much trauma, they need a stable home that “untethers them
from this family.” Hamilton explained it was in the children’s best interest to be
adopted, and they deserve a stable, loving home prepared to care for their special
24
needs, which is one of the reasons she was asking the judge to terminate both
parents’ rights.
Other Witnesses
Additional witnesses included Father’s foster mother and his sister, who
provided limited testimony about his relationships with Mother and the children. The
contractor who performed Intervenor’s home study also described her concerns with
placing the children with Intervenor. Intervenor’s girlfriend testified about the
preparations they made in their home for the children and that they were willing and
able to care for them. 10 Intervenor’s girlfriend also described Father assaulting
Intervenor and how Father set their home on fire.
Additional Evidence
Additional evidence admitted at trial included, among other things, Alex’s
medical records from TCH, Mother’s Affidavit of Voluntary Relinquishment, copies
of judgments of Father’s criminal convictions, copies of the protective orders against
Father, the indictment against Father for injury to a child, and a copy of the home
study.
C. Jury Arguments
At trial, Father testified he was not asking for custody of the children, but he
did not want his rights terminated. Throughout arguments Father used sports as an
10Intervenor became ill during trial and could not testify.
25
analogy for termination, arguing that even if he was sitting on the bench, he did not
want to be cut from the team. During closing, the children’s attorney ad litem argued
that Alex had a progressive brain injury and referenced infamous athletes, likening
the injuries to football player Aaron Hernandez. Father did not object to these
arguments during trial but filed a Motion for New Trial generically complaining of
“incurable jury argument.”
IV. Analysis
A. Motion for New Trial
In Father’s first issue, he contends that the trial court erred in denying his
Motion for New Trial based on improper jury argument. Specifically, Father
complains that the children’s attorney ad litem made improper jury argument during
closing. Father did not object to the arguments during trial but contends they were
incurable.
We review a trial court’s denial of a motion for new trial for an abuse of
discretion. See Dolgencorp of Tex., Inc. v. Lerma, 288 S.W.3d 922, 926 (Tex. 2009).
On appeal, Father complains about the following specific arguments:
It’s really nice that [Father] likes basketball, but you know who will
never play basketball? [Alex] because he has abusive head trauma. And
we know from the NFL and we know from movies like Concussion and
from the doctors like Dr. Sarpong that brain injuries are a degenerative
progressive disease. If he’s hit in the head with a baseball, if he has full-
contact sports, he’s set on a new path. A path that this man [Appellant]
started. A path that could lead this child to where he’s [Appellant’s]
going to sit in August [jail or prison].
26
...
[B]ut abusive head trauma and Aaron Hernandez starts murdering
people, that’s easy to understand. It is. I mean, and that’s the path that
[Father and Mother] have put these children on because Detective Lee
said and so did Myrissa that child abuse writes on the fabric of who
these children are.
...
But [Father] is the monster in all of their lives.
...
And just like this progressive brain disease that [Alex] now will suffer
with for his entire life . . . .
...
They need somebody who’s going to be ahead of these little things that
are going to come up for them because of these—of this brain injury
and because of [Oliver’s] autism but it’s not—it’s not the grandfather.
...
[Father] wants a seat on a bench at a game that his child can’t play
because of his actions.
Father did not object to these remarks during closing or request a limiting instruction.
Father’s Motion for New Trial contained one sentence that there “was an incurable
jury argument not otherwise ruled on by the trial court” but did not identify any
statements that he contended constituted improper argument. The Motion for New
Trial did not specify whether the objectionable comments occurred during opening
or closing or who made the statements. The first time he identified the complained
of statements with any particularity was during the hearing on the Motion for New
Trial. During the hearing, Father’s counsel complained about statements the
27
children’s attorney ad litem made during closing. Specifically, he complained about
her references to individuals with abusive head trauma, the football player Aaron
Hernandez and his conduct following traumatic brain injuries, her claims this was a
progressive disease, and her assertions this was the path the parents set Alex on.
Complaints of improper jury argument must typically be preserved by timely
objection and request for an instruction that the jury disregard the improper remark.
See Tex. R. App. P. 33.1; Phillips v. Bramlett, 288 S.W.3d 876, 883 (Tex. 2009).
However, a complaint of incurable argument may be asserted and preserved in a
motion for new trial, even absent a complaint and ruling during trial. See Tex. R.
Civ. P. 324(b)(5); Phillips, 288 S.W.3d at 883. Rule 324 of the Texas Rules of Civil
Procedure requires that as a prerequisite to presenting such a complaint on appeal, a
party must file a motion for new trial where the complaint is incurable jury argument
not otherwise ruled on by the trial court. Tex. R. Civ. P. 324(b)(5).
Texas Rule of Civil Procedure 321 provides,
Each point relied upon in a motion for new trial or in arrest of judgment
shall briefly refer to that part of the ruling of the court, charge given to
the jury, or charge refused, admission or rejection of evidence, or other
proceedings which are designated to be complained of, in such a way
that the objection can be clearly identified and understood by the court.
Tex. R. Civ. P. 321. Further, Rule 322 states that generalities are to be avoided. See
id. 322. To preserve this complaint requires a written motion delineating the
objectionable arguments with a certain amount of specificity. See, e.g., Austin v.
28
Shampine, 948 S.W.2d 900, 906 (Tex. App.—Texarkana 1997, writ withdrawn)
(noting that where only complaint of incurable jury argument in motion for new trial
was description of parties as “corrupt” appellant waived any complaint concerning
other jury arguments); Ruder v. Jordan, No. 05-16-00742-CV, 2018 WL 627091, at
*8 (Tex. App.—Dallas Feb. 2, 2018, no pet.) (mem. op.) (concluding specific
instance of improper argument not raised in motion for new trial was not preserved);
Williams v. United Elec. Co-op Servs., Inc., No. 10–13–00020–CV, 2014 WL
5801509, at *2 (Tex. App.—Waco Nov. 6, 2014, pet. denied) (mem. op.)
(concluding only argument quoted in motion for new trial was preserved and other
specific instances of alleged incurable jury argument were not preserved where they
were not included in a motion for new trial). In his Motion for New Trial, Father did
not identify the objectionable arguments. He failed to identify to the trial court which
party or parties made improper argument or whether it occurred during opening,
closing, or both. See Tex. R. Civ. P. 321, 322, 324(b)(5).
Even assuming Father preserved this issue for our review by orally identifying
the statements in the hearing on the Motion for New Trial, after a careful review of
the record, we conclude Father failed to meet his burden of showing the arguments
could not have been cured with an instruction. The Texas Supreme Court has
explained
In the case of improper jury argument, the complainant must prove a
number of things. He has the burden to prove (1) an error (2) that was
29
not invited or provoked, (3) that was preserved by the proper trial
predicate, such as an objection, a motion to instruct, or a motion for
mistrial, and (4) was not curable by an instruction, a prompt withdrawal
of the statement, or a reprimand by the judge. There are only rare
instances of incurable harm from improper argument. The complainant
has the further burden to prove (5) that the argument by its nature,
degree and extent constituted reversibly harmful error. How long the
argument continued, whether it was repeated or abandoned and whether
there was cumulative error are proper inquiries. All of the evidence
must be closely examined to determine (6) the argument’s probable
effect on a material finding. (7) Importantly, a reversal must come from
an evaluation of the whole case, which begins with the voir dire and
ends with the closing argument. The record may show that the cause is
weak, strong, or very close. From all of these factors, the complainant
must show that the probability that the improper argument caused harm
is greater than the probability that the verdict was grounded on the
proper proceedings and evidence.
Standard Fire Ins. Co. v. Reese, 584 S.W.2d 835, 839–840 (Tex. 1979) (internal
citation omitted).
“Incurable jury argument is rare, however, because ‘[t]ypically, retraction of
the argument or instruction from the court can cure any probable harm ...’” Phillips,
288 S.W.3d at 883 (quoting Living Ctrs. of Tex., Inc. v. Penalver, 256 S.W.3d 678,
680 (Tex. 2008) (per curiam)). A party claiming incurable harm must convince the
court that, based on the entire record, “the offensive argument was so extreme that a
‘juror of ordinary intelligence could have been persuaded by that argument to agree
to a verdict contrary to that to which he would have agreed but for such argument.’”
Id. (quoting Goforth v. Alvey, 271 S.W.2d 404, 404 (1954) (other citation omitted)).
30
“[A]rguments that strike at the courts’ impartiality, equality, and fairness
inflict damage beyond the parties and the individual case under consideration if not
corrected.” Penalver, 256 S.W.3d at 681. To constitute incurable jury argument, the
argument must “strike[] at the very core of the judicial process.” Phillips, 288
S.W.3d at 883. Historically, arguments rising to the level of incurable have included
appeals to race, unsupported and extreme personal attacks on witnesses or opposing
parties, and accusing an opposing party of manipulating a witness absent evidence
of tampering. Penalver, 256 S.W.3d at 681; Reese, 584 S.W.2d at 840.
Dr. Sarpong testified that children with traumatic brain injuries may suffer
developmental and behavioral issues that can take some time to manifest, which is
why doctors follow them long-term. Evidence showed Alex had already undergone
multiple types of therapy to assist in his recovery from the injuries he sustained and
would continue to need it in the future. The record was replete with evidence of
Alex’s extensive injuries, including broken bones in various stages of healing,
subdural hematomas, and retinal hemorrhages, which doctors attributed to repeated
instances of child abuse.
Detective Lee acknowledged that Mother lied to them during her initial
interview about living with Father. However, he testified she ultimately provided
information of Father’s conduct toward Alex. Lee explained that Mother told them
Alex was fussy, and Father did not like being around him for that reason. Father also
31
questioned whether Alex was his biological child. Lee testified that Mother
described Father flinging Alex around by the “scruff of the neck” and punching Alex
in the ribs. He also testified that Father demonstrated rolling rapidly back and forth
with Alex like an “alligator” and how “they catch hold of their prey in the water,
they start turning real fast to go back and forth to drown something” but noted that
likely would not cause the skull fracture and brain bleeding. Lee also testified that
Father complained during his interview that four-month-old Alex had “anger
problems.” Lee testified that they charged Father with injury to a child.
Father also testified he did not take Alex to his medical appointments. Father
told the jury he had been diagnosed with oppositional defiant disorder and bipolar
disorder for which he used to take medications but no longer did. Testimony adduced
at trial also showed Father’s violent tendencies, which included lying in wait for
Intervenor and assaulting him after Intervenor had taken Mother to a shelter, then
setting Intervenor’s house on fire. Additionally, while Father complains of
references to an infamous sports figure, we note that throughout the trial, he used a
sports analogy as part of this theme, asking that jurors “leave him on the bench” but
not “cut him from the team.” See Reese, 584 S.W.3d at 839 (noting complaining
party must prove argument was not invited or provoked, among other things).
These arguments did not strike at the core of the judicial process. See Phillips,
288 S.W.3d at 883. Given the state of the evidence and this record, we are
32
unconvinced that the offensive argument was so extreme it would have persuaded a
juror of ordinary intelligence to agree to a verdict contrary to what he or she would
have absent such argument. See id. Father failed to meet his burden of showing there
was a greater probability that the improper argument caused harm than the verdict
was grounded on proper proceedings and evidence. Reese, 584 S.W.2d at 839. The
trial court did not abuse its discretion in denying Father’s Motion for New Trial. We
overrule Father’s first issue.
B. Second Amended Petition in Intervention
In his second issue, Father argues the trial court erred by allowing Intervenor
to file his Second Amended Petition in Intervention at the time of trial to include the
Department’s termination grounds. We review a trial court’s decision on leave to
amend for an abuse of discretion. See Austin v. Countrywide Home Loans, 261
S.W.3d 68, 75 (Tex. App.—Houston [1st Dist.] 2008, pet. denied).
In the present case, the first day of trial and shortly before voir dire, Intervenor
alerted the trial court he wanted to amend his pleadings and adopt the Department’s
pleadings to include termination in his Petition in Intervention. That same day,
Intervenor filed a Motion to Adopt Petitioner’s Pleadings Regarding Termination of
Parental Rights. 11 Father objected in the trial court and argued that the amendment
11In substance, thiswas a motion for leave to amend, and the trial court treated
it as such. See Surgitek, Bristol-Myers Corp. v. Abel, 997 S.W.2d 598, 601 (Tex.
1999) (explaining courts look to substance of relief sought not merely the title).
33
was untimely, constituted surprise and prejudice, and he would have changed his
strategy had he known Intervenor would also seek to terminate his rights. Father’s
counsel argued that under Rule 66 an amendment can be allowed if it subserves
presentation of the merits of the case, which this does not do, because counsel argued
it did not change anything. Finally, Father objected that the Second Amended
Petition in Intervention added termination as a new cause of action, which he argued
was prejudicial as a matter of law and cited to Greenhalgh v. Service Lloyds
Insurance Company. See 787 S.W.2d 938 (Tex. 1990). The Department and
Intervenor both noted that the jury charge would not change nor would the evidence,
so there was no prejudice. The trial court overruled Father’s objections and granted
Intervenor leave to amend, reasoning that termination was not a new cause of action
in this case, it existed through the Department’s pleadings, and Father was already
defending the same cause of action in the suit. The trial court further explained that
it was not unanticipated, Father had appointed counsel to defend against the
termination, and there was no prejudice.
Texas Rule of Civil Procedure 66 governs trial amendments and provides that
the court may allow pleading amendments and shall do so when the amendment
would serve the presentation of the merits without prejudicing an opposing party’s
action or defense on the merits. See Tex. R. Civ. P. 66; Tanglewood Homes Ass’n,
Inc. v. Feldman, 436 S.W.3d 48, 64 (Tex. App.—Houston [14th Dist.] 2014, pet.
34
denied). Under Rule 66, “a trial court has no discretion to refuse a trial amendment
unless: (1) the opposing party presents evidence of surprise or prejudice, or (2) the
amendment is prejudicial on its face because it asserts a new cause of action or
defense, and the opposing party objects to the amendment.” Feldman, 436 S.W.3d
at 64 (citing Stephenson v. LeBoeuf, 16 S.W.3d 829, 839 (Tex. App.—Houston [14th
Dist.] 2000, pet. denied)). Mandatory trial amendments are those procedural in
nature, such as conforming the pleadings to the evidence at trial. Id.; Stephenson, 16
S.W.3d at 839. Discretionary amendments are those that change the nature of the
trial, and we will only reverse a trial court’s decision to allow or deny them if the
court clearly abused its discretion. See Feldman, 436 S.W.3d at 64.
A proposed trial amendment asserting a new cause of action may be
prejudicial on its face, but merely asserting a new cause of action is not prejudicial
to an opposing party as a matter of law. Id. Rather, to determine prejudice, we
evaluate the amendment in the context of the entire case. Id. We look at three factors
to address whether a trial amendment is prejudicial on its face: (1) it asserts a new
substantive matter that reshapes the nature of the trial itself; (2) the new matter is of
a nature that the opposing party could not have anticipated considering the
development of the case up to the time of the requested amendment; and (3) the
opposing party’s presentation of its case would be detrimentally affected by the
amendment. Id. at 64–65. Under this test, we will not reject a discretionary trial
35
amendment simply because it alleges a new cause of action. See State Bar of Tex. v.
Kilpatrick, 874 S.W.2d 656, 658 (Tex. 1994). Instead, we look at the three factors
above in the context of the entire case to determine whether the trial court abused its
discretion. See Feldman, 436 S.W.3d at 65; Stephenson, 16 S.W.3d at 839.
Father has failed to show that he was prejudiced by Intervenor’s trial
amendment or that it was prejudicial on its face. Despite his claim of surprise and
prejudice, termination was a cause of action in the case from its inception, and the
Intervenor’s termination grounds were identical to the Department’s. It was a cause
of action Father already had to defend, no new witnesses were required, and the jury
charge did not change. The trial court reasonably concluded it did not reshape the
nature of the case. See Feldman, 436 S.W.3d at 65. Father also alleges that he could
not have anticipated the new matter; however, given the Department’s pleaded
termination grounds, the acrimonious relationship between Father and Intervenor,
Intervenor’s first-hand experience with Father’s violent tendencies, and that
Intervenor sought conservatorship of the children, the trial court’s conclusion that
this was not unanticipated given the case’s procedural posture was reasonable.
Finally, the fact that there were no new witnesses or evidence Father had to address
or rebut based on the amendment could have likewise led the trial court to reasonably
conclude it did not detrimentally impact the presentation of his case. Accordingly,
the trial court did not abuse its discretion by allowing the trial amendment. See Tex.
36
R. Civ. P. 66; Feldman, 436 S.W.3d at 64–65; Stephenson, 16 S.W.3d at 839. We
overrule this issue.
V. Conclusion
Having overruled Father’s and Intervenor’s issues, we affirm the trial court’s
judgment.
AFFIRMED.
________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on September 13, 2022
Opinion Delivered October 6, 2022
Before Golemon, CJ, Kreger and Johnson, JJ.
37