in the Interest of J.B., a Child , 2002 Tex. App. LEXIS 8505 ( 2002 )

In the Interest of J.B., a Child

  IN THE

TENTH COURT OF APPEALS

No. 10-01-044-CV

IN THE INTEREST OF J.B., A CHILD

From the 19th District Court

McLennan County, Texas

Trial Court # 1999-1869-1

DISSENTING OPINION

     The majority has decided three issues of significance to the parties in this case and granted relief beyond that requested. Of the three issues decided, only two have general applicability to the jurisprudence of this State. Those two issues are: 1) the interpretation of Rule 245 of the Texas Rules of Civil Procedure; and 2) the admission of expert testimony under Rule 702 of the Texas Rules of Evidence. The issue regarding Rule 245 is the dispositive issue upon which the case is reversed and will probably affect only a small number of cases in the future.

      But the issue regarding the admission of expert testimony is far more important to the jurisprudence of the State because it will affect virtually all cases involving the admission of expert testimony, particularly those cases that involve expert testimony based on experience and training rather than testimony based on applying the scientific method. For this reason I will not address the issues in the same order they are addressed in the majority opinion, rather I will address them in the order of their importance.

      The third issue of significance to the parties relates to the admission of evidence peculiar to this case so I will only address it briefly. I will then comment upon two other issues: the relief granted by the majority beyond that requested by the parties, and the majority’s failure to apply its own dispositive precedent regarding broad form submission of special issues in termination-of-parent-child-relationship cases, rather than avoiding a controversial interpretation of Rule 245.

EXPERT TESTIMONY

      The majority has chosen to address the admission of expert testimony from Dr. Shinder because the issue will likely occur on remand. Not only will this issue likely occur on remand in this case, the issue is pertinent to every case in which expert testimony is admitted. Unlike most evidentiary issues, the admission of expert testimony has been the subject of much debate in judicial opinions and legal publications. Considering that it is an evidentiary issue, the admission of expert testimony has been the subject of an inordinate number of United States Supreme Court, Texas Supreme Court, and Texas Court of Criminal Appeals opinions in recent years. Hundreds of lower courts have also addressed the issue.

      When this mass volume of cases is reviewed, three generally accepted concepts emerge. First, Rule 702 regarding the admission of expert testimony applies to all scientific evidence, technical evidence, or evidence regarding areas of specialized knowledge sought to be introduced before the fact finder. Second, because the issue is related to the admission of evidence, the trial court is given broad discretion in determining admission of expert testimony. Third, the trial court, upon a proper objection by the opponent, must determine, as a preliminary matter, the reliability of the expert testimony tendered for admission.

      But the courts have not been able to reach a consensus on three concepts at issue in this case:

      (1) How is the tendered expert testimony to be tested for reliability?

            (a) Is the test, and thus the proof, different for “hard” sciences versus “soft” sciences?

            (b) Is the type or method of proof required different for “novel” versus established fields or applications?;

(2) How much discretion does the trial court have to select the method to be used for testing the reliability of the tendered expert testimony?; and

(3) What is the appellate court’s standard of review for the trial court’s selection of a method to test the reliability of the tendered expert testimony?

HOW TO TEST RELIABILITY?

      Many of the cases regarding admission of expert testimony have involved what test the trial court should use to determine the admissibility of expert testimony. It is the majority’s selection of the test for admissibility with which I have my principle disagreement. The natural place to start regarding the test for admissibility of expert testimony is with the language of the Rule. Rule 702 provides:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education may testify thereto in the form of an opinion or otherwise.

Tex. R. Evid. 702.

      The Texas Supreme Court, in Helena, characterized the test of admissibility of expert testimony as a two part test. Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). The Court stated: “A two-part test governs whether expert testimony is admissible; (1) the expert must be qualified; and (2) the testimony must be relevant and be based on a reliable foundation...[t]he trial court makes the initial determination about whether the expert and the proffered testimony meet these requirements.” Id. (Internal citations omitted).

      Thus, Helena breaks the rule into two discreet parts: (1) qualification of the expert; and (2) the relevance and reliability of the evidence. The second part of the test can be divided into at least two parts: (1) the reliability of the evidence; and (2) the relevance of the evidence.

      Earlier, in Robinson, the Court characterized the rule as containing three requirements. The Court stated: “Rule 702 contains three requirements for the admission of expert testimony: (1) the witness must be qualified; and (2) the proposed testimony must be ‘scientific ... knowledge’; and (3) the testimony must ‘assist the trier of fact to understand the evidence or to determine a fact in issue.’” E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). The Court effectively divided the third requirement of the Rule into two parts by stating: “In order to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must be relevant and reliable.” Id. Thus, the Court made the same distinction in Robinson regarding the “third” requirement of the Rule which it later expressly made the “second” part of the test described in Helena; that the expert testimony must be both reliable and relevant.

      Obviously the Supreme Court in Helena did not eliminate from the Rule the requirement expressed in Robinson that the testimony must be “scientific ... knowledge” to be considered for admission under Rule 702. Thus, a full description of the hurdles that a proponent must overcome to get expert evidence before the fact finder could be summarized as follows:

1.The witness must be qualified as an expert to testify about the subject by knowledge, skill, experience, training, or education;

      2.   The testimony must relate to scientific, technical, or other specialized knowledge;

      3.   The testimony must be reliable; and

      4.   The testimony must be relevant, in essence it must assist the trier of fact to understand the evidence or to determine a fact in issue.

      I note that relevance in this context, under Rule 702, may actually be broader than under Rule 401 because it is not limited to evidence “...having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.” Tex. R. Evid. 401. Rule 702 also allows the admission of evidence that does nothing more than assist the fact finder to understand other evidence. At the very least, we know that “relevance” under Rule 702 incorporates traditional relevancy analysis under Rules 401 and 402. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995); see Tex. R. Evid. 401, 402, 702.

      But it is the third element, the reliability of the tendered expert testimony, that has generated the real debate and is the focus of this dissenting opinion. In particular, how is the trial court, standing at the gate between the world outside the courtroom and the record of evidence upon which the fact finder can properly base its decision, to determine the reliability of expert testimony?

      In Robinson, the Texas Supreme Court gave us a non-exclusive list of six factors by which a trial court is to review the reliability of scientific evidence. Robinson, 923 S.W.2d 549 (Tex. 1995). Later, in Nenno, the Texas Court of Criminal Appeals gave us a framework by which to test the reliability of “fields of study aside from the hard sciences, such as social sciences or fields that are based primarily upon experience and training as opposed to the scientific method.” Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). Then, in Gammill, the Texas Supreme Court noted that the considerations listed in Daubert and Robinson for assessing the reliability of scientific evidence cannot always be used with other types of expert testimony. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 722-28 (Tex. 1998); see Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).

      In its determination of what test to use, the majority correctly observes that “the Supreme Court noted a potential difference between expert testimony based on methodology and that based on experience.” Majority opinion at page 17, citing Gammill, 972 S.W.2d at 722-27. And Gammill teaches us that when the Robinson factors do not fit the particular expert testimony, the trial court must still determine the reliability of these other types of expert testimony, those not based on scientific methodology, and thus, must also determine how to assess the reliability thereof. Gammill, 972 S.W.2d at 726.

CAN WE LOOK BEYOND ROBINSON FOR AN APPROPRIATE TEST?

      The majority, in contrast to the teaching in Gammill, decides to apply only the Robinson factors for evaluating the reliability of the evidence instead of applying a more appropriate analysis tailored to this particular expert testimony. Even though the Texas Supreme Court has not expressly determined what factors may be considered when evaluating the admissibility of testimony from a social scientist, whose testimony is sometimes referred to as soft science evidence, it has expressly stated that experience alone may provide a sufficient basis for an expert’s testimony in some cases. Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713, 726 (Tex. 1998). And it has also expressly stated that the factors used in Robinson for testing the reliability of scientific evidence cannot always be used to test the reliability of other kinds of expert testimony. Id. In essence, Robinson may not be applicable to “other” expert testimony, that which was not derived through the scientific method. Additionally, the Court of Criminal Appeals, in Nenno, expressly identified some factors for the trial court to use when determining the reliability of social science evidence. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). So what is the trial court to do when faced with the need to test the reliability of “other” expert testimony in a civil case?

      This leads us to the question: Could the trial court properly use factors other than those set out in Robinson, for example those from Nenno, in this civil proceeding? Id; see E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). Without explanation, the majority limits its analysis to the independent application of the Robinson factors. I believe this independent application is wrong for two reasons. First, I believe it is error to consider only the Robinson factors in evaluating this particular expert testimony. Not only may the trial court use the factors from Nenno, in essence factors other than those applied in Robinson, but the trial court must tailor the factors it uses in a particular case to meet the ultimate objective: to determine the reliability of the particular expert testimony being considered for admission before the fact finder. Second, I believe the majority has erroneously conducted a de novo application of the Robinson factors to the evidence. After making its own evaluation of the factors and having determined that the evidence does not meet the Robinson test, rather than reviewing the trial court’s evaluation, the majority improperly concludes that the trial court abused its discretion in admitting the testimony.

HARMONIZING CIVIL AND CRIMINAL RULE 702 ANALYSIS

      As indicated above, the majority errs in considering only the Robinson factors. In Robinson, the Texas Supreme Court based its holding construing Rule 702 of the Civil Rules of Evidence on the reasoning of Kelly, a Court of Criminal Appeals case that construed Rule 702 of the Criminal Rules of Evidence. E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992); Tex. R. Civ. Evid. 702; Tex. R. Crim. Evid. 702; see Musgrove v. State, 82 S.W.3d 34, 38 (Tex. App.—San Antonio 2002, no pet.) (effective March 1, 1998, the Texas Rules of Evidence replaced the former Texas Rules of Civil Evidence and the former Texas Rules of Criminal Evidence). By adopting the analysis of Kelly in Robinson, the Texas Supreme Court provides precedent that analytical reasoning used in criminal cases can and should be used in civil cases when appropriate. Because the Civil Rules of Evidence and the Criminal Rules of Evidence have been combined into the Texas Rules of Evidence since the decisions of Kelly and Robinson, even greater weight should be given to the argument that this is an appropriate case in which the interpretation of Rule 702 should be harmonized. Tex. R. Evid. 702; see Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

      One case which specifically discusses the general goal of harmonizing the interpretation of civil and criminal rules is Clewis, in which the Court of Criminal Appeals purported to harmonize the criminal and civil jurisprudence of Texas regarding appellate review for factual sufficiency. Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000). In Clewis, the Court stated: “[t]his holding harmonizes the criminal and civil jurisprudence of this State with regard to appellate review of questions of factual sufficiency.” Clewis, 922 S.W.2d at 129.

      In several cases, a majority of this court used this same rationale, harmonization of the interpretation of civil and criminal rules, to extend criminal procedural rules to civil termination cases. For example, we held in A.P. that review of unpreserved sufficiency-of-the-evidence complaints about the two core issues in termination cases is appropriate. In the Interest of A.P., 42 S.W.3d 248, 256 (Tex. App.—Waco 2001, no pet.). The majority later explained their reasoning for this holding by stating in B.L.D. “we also recognize that when appropriate, harmonization of civil and criminal jurisprudence is one of our goals. Therefore, when appropriate, we look to criminal law to determine similar or corresponding issues.” In the Interest of B.L.D., 56 S.W.3d 203, 211 (Tex. App.—Waco 2001, pet. granted).

      In J.F.C., the majority held that we will review, as we do in criminal cases, unpreserved complaints about charge errors that pertain to the two core issues of termination cases. In the Interest of J.F.C., 57 S.W.3d 66 (Tex. App.—Waco 2001, pet. granted). And in B.L.D., the majority held that the statutory right to counsel means the effective assistance of counsel as it does in criminal cases. B.L.D., 56 S.W.3d at 212.

      Based on these holdings, I do not understand why the majority refuses to consider that the trial court could have applied the Nenno factors when evaluating the reliability of social science evidence in a civil termination case. While I believe we have erred in making criminal procedural rules apply to civil termination proceedings, In the Interest of J.F.C., 57 S.W.3d 66 (Tex. App.—Waco 2001, pet. granted) (Gray, J., dissenting) and In the Interest of B.L.D., 56 S.W.3d 203, 211 (Tex. App.—Waco 2001, pet. granted) (Gray, J., dissenting), I generally agree civil and criminal law should be harmonized when appropriate. In particular, there needs to be consistency in the interpretation of this evidentiary rule which now applies in both civil and criminal trials regarding the admissibility of evidence based on the reliability of expert testimony as determined by the trial court acting in its gatekeeper function.

      Based on the Texas Supreme Court’s application of Kelly in deciding Robinson, and additional cases decided by this court and the Court of Criminal Appeals, I think we should at least use the Nenno factors as a persuasive framework for analysis of social science evidence until the Texas Supreme Court gives us other guidance. Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App. 1998); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992). Thus, at a minimum, I would evaluate the reliability of the testimony of Dr. Shinder, a psychologist, according to the analysis the Court of Criminal Appeals applied in Nenno. Nenno, 970 S.W.2d at 561. I note that the appellant cites Nenno, thus acknowledging its applicability to this case.

THE NENNO ANALYSIS

      To apply the Nenno analysis to this case, we must first understand how the Nenno analysis is applied in general. In Nenno, the Court of Criminal Appeals explained that the methods of validating hard science, “such as assessing the potential rate of error or subjecting a theory to peer review, may often be inappropriate for testing the reliability of fields of expertise outside the hard sciences.” Id. Without eliminating the reliability requirement of Kelly, the Court then went on to provide the appropriate questions when addressing fields of study such as the social sciences, or fields that are based on experience and training as opposed to the scientific method. Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998). These questions are: (1) whether the field of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within the scope of that field; and (3) whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field. Id.

      This court used the analysis for reliability of social science evidence from Nenno to affirm the trial court’s admission of testimony by a “registered play therapist” in Campos. Campos v. State, 977 S.W.2d 458, 463-4 (Tex. App.—Waco 1998, no pet.). Campos involved a determination of whether the methodology used by a therapist was a proper basis for expert testimony in a trial on the charge of aggravated sexual assault. We reviewed the methodology used by the therapist, regarding “play therapy,” and stated: “her office is filled with specific toys and activities which are chosen specifically to encourage children to express their feelings.” Id. at 464. In developing her expert opinion, the therapist applied her observations of the child to what she had learned about the behavior of abused children through her studies. Id. at 463-4. This court found that the trial “court acted within its discretion in finding this testimony relevant, reliable, and helpful to the jury.” Id. at 464.

Application of Nenno

      We now consider the actual application of the Nenno analysis to Dr. Shinder’s testimony in this case. When Dr. Shinder’s testimony is reviewed under this analysis, it is clear the evidence was reliable.

Legitimate Field of Inquiry?

      From Dr. Shinder’s testimony it is clear that the two fields of expertise under consideration are psychology and public health. He testified that he earned a Ph.D. in psychology in 1973 and his masters degree in public health, focusing on issues of abuse and neglect, in 1979. He has practiced in these fields, focusing on issues of abuse and neglect, since that time.

      It is not clear that Spencer’s objection challenged whether these were legitimate fields of expertise. I believe it is foolish to even consider that psychology and public health are not legitimate fields of expertise. Thus, the trial court should be able to make this determination without evidence, in essence take judicial notice that these are legitimate fields of expertise. See Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997) (Keller, J., concurring and dissenting).

      But if we are required to examine the record there is adequate evidence to support the determination that these are legitimate fields for expert testimony. The State did not attempt to present any testimony directly related to a determination of whether these are “legitimate” fields of expertise. The evidence does support the fact, however, that there are universities from which Dr. Shinder has received advanced degrees in these particular fields. This is circumstantial evidence upon which the trial court could properly conclude that psychology and public health are legitimate fields of specialized knowledge. Accordingly, the trial court would not have abused its discretion if it determined the answer to the first question in the Nenno analysis, whether the field of expertise is a legitimate one, should be answered in the affirmative.

Scope of Testimony within the Field?

      Dr. Shinder testified that his assessment of parental abilities was based on an analysis of the parent’s objective knowledge in the area of parenting, and an evaluation of whether the parent has acted appropriately on the basis of that knowledge in regard to their children. Dr. Shinder used a questionnaire he developed to assist him in evaluating the parent’s objective knowledge, which in turn, assisted him in developing his expert opinion regarding the best interest of J.B. The questions covered a wide range of matters such as food storage, which indicates a parent’s ability to evaluate how foods should be safely handled, and how many hours of sleep children generally need each night. These are examples of the questions Dr. Shinder referred to as the objective part of his test.

      Dr. Shinder then utilized the answers to these types of questions in conjunction with other information obtained from his review of Spencer’s psychological counseling file and his personal interviews of Spencer on a broad range of topics to develop his opinion regarding the best interest of J.B. The other topics on which Dr. Shinder questioned Spencer included how Spencer coped with emergencies, how she reacted to perceived medical needs of the children, and what Spencer anticipated for the future of her children.

      As a psychologist with a masters degree in public health and years of experience focusing on abuse and neglect, the analysis performed by Dr. Shinder is within the scope of the fields of expertise under review. Thus, the trial court would not have abused its discretion if it determined the answer to the second question in the Nenno analysis, whether the subject matter of the expert’s testimony is within the scope of that field, should also be answered in the affirmative.

Expertise Properly Applied?

      Dr. Shinder used established techniques of psychology in interviewing and data gathering, in addition to his training and experience, to assist him in forming and expressing an opinion concerning Spencer’s parenting abilities, and in particular, the best interest of J.B. Dr. Shinder conducted a psychological evaluation of Spencer in 1989 when Spencer was still a juvenile, long before this case was filed. He completed the parenting assessment of Spencer less than a year before trial of this case began. Spencer went to one parenting class with Dr. Shinder before she quit attending. Throughout the years, from the time she was a juvenile through her adulthood and parenthood, Spencer has participated in counseling at Dr. Shinder’s office. Dr. Shinder properly relied upon and utilized principles involved in the fields of psychology and public health in forming his opinion of Spencer’s parenting abilities and, more particularly as applicable to this case, in determining his opinion regarding the best interest of J.B. Therefore, the trial court would not have abused its discretion if it determined the answer to the final question in the Nenno analysis, whether the expert’s testimony properly relies upon and/or utilizes the principles involved in the field, should also be answered in the affirmative.

Conclusion Using the Nenno Analysis

      A review of the trial court’s decision using this analysis for social science evidence (soft science), instead of scientific evidence (hard science), shows the trial court did not abuse its discretion when it determined Dr. Shinder’s testimony was admissible because it was reliable and thus helpful to the jury in making its determination whether to terminate the parent-child relationship between Spencer and J.B. There is no reasonable distinction between the techniques used by Dr. Shinder to develop his opinion concerning the parent-child relationship between Spencer and J.B. and the techniques used by the play therapist this court approved in Campos to develop her opinion concerning whether a child had been sexually abused. Campos v. State, 977 S.W.2d 458 (Tex. App.—Waco 1998, no pet.).

CRITICISM OF THE NENNO ANALYSIS

      The distinction that Nenno makes for differentiating between the test for admitting expert testimony regarding hard and soft sciences has not been without its critics. The United States Supreme Court, interpreting the federal counterpart to Rule 702, has determined that the distinction between hard and soft science is too difficult to apply in practice. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238, (1993). As the Court explained: “It would prove difficult, if not impossible, for judges to administer evidentiary rules under which a gatekeeping obligation depended upon a distinction between ‘scientific’ knowledge and ‘technical’ or ‘other specialized’ knowledge. There is no clear line that divides the one from the others.” Id. at 148. The Court determined that the test for reliability cannot be stated with certainty and the trial court must therefore be given wide flexibility in determining what test is appropriate for the particular testimony being offered. The Court noted that the trial court has wide discretion to decide what test is appropriate when the opponent challenges the admissibility of expert testimony. As the Court stated:

The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases and for all time the applicability of the factors mentioned in Daubert, nor can we now do so for subsets of cases categorized by category of expert or by kind of evidence. Too much depends upon the particular circumstances of the particular case at issue....We do not believe that Rule 702 creates a schematism that segregates expertise by type while mapping certain kinds of questions to certain kinds of experts. Life and the legal cases that it generates are too complex to warrant so definitive a match.

Id. at 150-51.

      The First Court of Appeals has expressly applied Nenno to a civil case. Coastal Tankships, U.S.A., Inc., v. Anderson, No. 01-99-01345-CV, 2002 Tex. App. LEXIS 4091, (Houston [1st Dist.] May 31, 2002, no pet. h.). The problem with its application, as noted by Justice Brister in his concurring opinion, is that the facts were a perfect fit for the application of the Robinson/Havner analysis to scientific evidence of causation. There was no legitimate reason to explain the majority’s departure from a straight forward application of Robinson. Neither Kumho nor Nenno can be used as an excuse to abandon established techniques which allow scientific evidence to be tested for reliability in a consistent manner. But, as Gammill teaches us, the trial court must determine the reliability of all expert testimony, and if the Robinson test does not fit the evidence, select another means to test it. This does not mean the trial court can keep selecting methods until a method that necessarily results in admission, or exclusion, is found. The nature of the evidence, rather than the result, should determine the appropriate test.

      The majority in this case has refused to apply anything other than the Robinson factors. On the other extreme, a majority of the First Court of Appeals has abandoned Robinson even for scientific evidence of causation. I believe the appropriate answer is somewhere between the extremes represented by these two cases.

      I would go beyond the Court of Criminal Appeals’ analysis in Nenno which was applied only to the “soft sciences” and join the United States Supreme Court in its analysis that there is no litany of questions that can be asked of every expert to determine if the testimony tendered is reliable. The classification of “hard” versus “soft” sciences may facilitate some differentiation, but in the final analysis I believe that distinction is just another problem that the trial courts and litigants will have trouble applying in practice. With only minor modifications, the Nenno analysis is actually comprehensive enough that it could provide the framework for considering the admissibility of all expert testimony, not just “soft science.” While the factors in Robinson, which were the only factors considered by the majority in this case, should normally be applied to scientific evidence, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 158-59, 119 S. Ct. 1167, 1179, 143 L. Ed. 2d 238, 256-57 (1993) (Scalia, J., concurring), these factors are ill suited to a psychologist rendering an opinion about the best interest of a child. Accordingly, I believe the majority errs by limiting its analysis of the reliability of Dr. Shinder’s testimony to consideration of the Robinson factors and no others.

TRIAL COURT DISCRETION AND OUR STANDARD OF REVIEW

      We now turn our attention to the second reason why the majority’s de novo determination of the Robinson factors is error. As I understand the majority’s analysis, they have determined that Dr. Shinder’s opinion based upon his “parenting assessment” cannot be admitted into evidence during the trial of this case on remand. I believe the majority has erred in two separate, but related, ways. Foremost, is that the majority failed to determine and review the method that the trial court used to determine the reliability of the testimony. Further, by choosing to conduct its own de novo application of only the Robinson factors, and determining the evidence did not meet them, the majority did not review the trial court’s method of determining the reliability of the testimony under the proper standard of review: abuse of discretion.

      In essence, the majority failed to review the trial court’s method of determining reliability under an abuse of discretion standard. By this analysis, the majority has deprived the proponent of the evidence the opportunity to establish the reliability of the tendered testimony on remand. This is wrong.

      For the reasons explained below, we should not prevent the State from establishing the reliability of the testimony on remand with additional or other testimony which the trial court finds to be a satisfactory method of determining the reliability of the expert testimony.

      In being critical of the majority’s de novo application I am not ignoring Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997). In Havner, the issue was whether there was legally sufficient evidence of causation. Thus, the Texas Supreme Court reviewed the entire record to determine if there was any competent evidence of causation. The Court held that none of the evidence the trial court had admitted was reliable testimony of causation. Therefore, no evidence supported the jury’s determination that the drug sold by Merrell Dow was the cause of the plaintiff’s injury. The result was to reverse and render.

      Havner does not represent a de novo selection and application of a particular test for admissibility of expert testimony as has been conducted by the majority in this case. In this case, I am questioning the propriety of the reviewing court deciding what test it will apply, applying the test to the record, and deciding based upon that record, not only that the trial court abused its discretion in admitting the evidence, but also determining that there is no additional evidence that could establish reliability on remand, thus barring the introduction of the evidence upon retrial of the case. While the test for reliability is the same, the result of our analysis for admissibility should be somewhat different when we address the issue under a legal sufficiency analysis, which depends upon the procedural posture in which the issue is presented. See Merrell Dow Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).

      When, as in this case, we are reviewing the issue of admissibility, as the Supreme Court noted in Kumho, the trial court must be given the same kind of latitude in deciding how to test an expert’s reliability, and to decide whether or when special briefing or other proceedings are needed to investigate reliability, as it enjoys when it decides whether that expert’s relevant testimony is reliable. Otherwise, the trial judge would lack the discretionary authority needed both to avoid unnecessary “reliability” proceedings in ordinary cases where the reliability of an expert’s method is properly taken for granted, and to require appropriate proceedings in the less usual or more complex cases where cause for questioning the expert’s reliability arises. Indeed the Rules seek to avoid “unjustifiable expense and delay” as part of their search for “truth” and the “just determination” of proceedings. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152-53, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1993).

      This is one of the cases in which it may be entirely appropriate for the trial court to avoid a lengthy reliability proceeding on at least some of the Nenno factors. In this case, I do not think that it is inappropriate for us to make the observation that the 19th District Court in McLennan County handles virtually all the domestic relations, juvenile, and termination proceedings in this County. Further, this particular expert has appeared in the 19th District Court many times. Must the trial court conduct the same level of Daubert/Robinson/Kumho hearing in every case in which this expert appears on these subjects? Surely not. See Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997) (Keller, J., concurring and dissenting). This is not to say that every litigant is not entitled to challenge the particular testimony of Dr. Shinder, but to require the trial court to go through the same extensive Daubert/Robinson/Kumho analysis every time that he takes the stand to testify in one of these types of cases seems to scream of judicial inefficiency.

      Let me make it clear that I am not advocating a return to the Frye test in which only novel expert testimony is tested for reliability. Frye v. United States, 54 App. D.C. 46, 293 F. 1013 (1923). But there should be some sliding scale of the type and level of proof required based upon the particular expertise involved. What concerns me is the cost to the litigants and the consumption of judicial resources, taxpayer resources, if in every case the underlying basis of commonly recognized fields of expertise must be proven to establish the reliability of expert testimony. In every case involving the use of radar to determine speed must the reliability of the science of radar be established? Must every case involving identity through DNA or blood testing separately establish the reliability of those fields of expertise? The trial court must be accorded some discretion to determine when a body of knowledge has become so well established that judicial notice or a summary reliability hearing will be acceptable and extensive proof need not be presented, in essence repeated, in every case in which that type evidence is tendered.

      It should be sufficient for Dr. Shinder to briefly testify in each case regarding his training and experience, the manner in which this expertise was used to form his opinion in the case at hand, and, assuming the trial court finds the evidence reliable, for the trial court to state upon the record the court’s prior experience with Dr. Shinder and summarize the basis of its conclusion regarding the reasons it finds the testimony to be reliable. Of course, if the opponent insist upon an expanded hearing to develop why the expert testimony is unreliable in a particular case, the opponent would certainly be entitled to develop that record and expand upon why the prior experience of the court with Dr. Shinder is not applicable to the testimony tendered in a particular case. This will provide us an adequate record to review the trial court’s determination of the reliability of the tendered testimony without unnecessarily consuming the resources of the court and parties.

      Additionally, because under Rule 702 the proponent of the evidence has the burden to prove admissibility, we should require very specific objections to attack the basis of expert testimony. Tex. R. Evid. 702. General objections that the tendered testimony does not meet the Daubert/Robinson/702 test should be rejected. Even the adequacy of an objection that the expert testimony is not sufficiently reliable should be questioned because there are multiple elements and ways to test reliability. For example, if the trial court is using Nenno, is the party objecting that the field is not legitimate, the testimony is outside the scope of the field, or that the testimony does not properly rely upon or utilize the principles of the field? The objection should be sufficient to inform the trial court and the proponent of the evidence of the alleged defect in the foundation for the admission of expert testimony.

      But regardless of what type or method of proof is required, and what objection is sufficient, our review of the trial court’s selection of the method by which it will determine the reliability of the tendered testimony should not be based on the determination of factors we would have used. Instead, we are required to review the method and factors used by the trial court for an abuse of discretion. Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed. 2d 238 (1993). If the record is not clear what analysis, method and factors, the trial court used, the trial court’s decision should only be overturned if there is no theory under which the evidence could properly be admitted. The majority erred when it selected and then applied only the Robinson analysis. To say it another way, the majority failed to review the trial court’s selection of test-for-reliability under the abuse of discretion standard.

LABELING AN EXPERT’S PROCESS OF FORMING AN OPINION

      Dr. Shinder related the results of his observations and interviews performed in accordance with his training in psychology and the mental health fields, and used this to explain why it is in the best interest of J.B. to terminate the parent-child relationship with Spencer. This is exactly the type testimony that is helpful to the fact finder on several of the Holley factors used to evaluate the best interest of the child. Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). In his expert testimony, Dr. Shinder used the term “parenting assessment” as a label for part of his analysis leading up to his opinion regarding the best interest of J.B. The use of the label, “parenting assessment,” seems to have caused the majority undue concern. An expert who chooses to label their particular method or process of forming their expert opinion does not create a new field, or even a novel application in an existing field. We must review what the expert’s process was, not the fact that it was labeled.

      One final thought on this issue. It is noteworthy that Dr. Shinder’s parenting assessment, based on his expertise in psychology and public health, is comparable to the hydrologist work in Gragg, which we expressly approved. Tarrant Regional Water District v. Gragg, 43 S.W.3d 609, 618 (Tex. App.—Waco 2001, pet. granted). The hydrologists in Gragg drew from their expertise and training and utilized information from their specialized field to create a hydrological model used in litigation. They called it “X-FOR.” “The model they created used techniques and performed studies in a manner accepted and customary in the [hydrology] industry. The model merely helped with their calculations. . .” Tarrant Regional Water District v. Gragg, 43 S.W.3d 609, 617 (Tex. App.—Waco 2001, pet. granted). Because the model was named and was used in litigation did not make it unreliable. Just as the hydrologists made a model using techniques accepted by the industry and called it X-FOR, Dr. Shinder created an analysis using techniques accepted by and customary in the fields of psychology and public health and called it a parenting assessment.

CONCLUSION REGARDING THE ADMISSION OF EXPERT TESTIMONY

      Based on the foregoing, I would hold that the trial court did not err in performing its gatekeeper function when it allowed Dr. Shinder to give his opinion regarding the best interest of J.B.

RULE 245

      We now must turn our attention to the holding on which the majority reverses the trial court’s judgment, a perceived violation of Rule 245. The majority disregards the plain meaning of the words used in Rule 245 and succumbs to the invitation of an able advocate who is allowed to misdirect the focus to another part of the Rule. We should not do violence to the plain wording of this Rule. The Rule provides for 45 days notice of only the first setting of a contested trial. Tex. R. Civ. P. 245. For the second and subsequent settings, 45 days notice is not required. O’Connell v. O’Connell, 843 S.W.2d 212, 215 (Tex. App.—Texarkana 1992, no writ); see also Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, writ denied).

      The misdirection relates to what is a first setting versus a second setting for trial and how much notice is required for a second setting. The Rule does not specify any particular length of notice for a second trial setting, accordingly, notice which comports with due process, “any reasonable notice,” is adequate for a second setting. The relevant portion of the Rule is as follows:

The Court may set contested cases on written request of any party, or on the court's own motion, with reasonable notice of not less than forty-five days to the parties of a first setting for trial, or by agreement of the parties; provided, however, that when a case previously has been set for trial, the Court may reset said contested case to a later date on any reasonable notice to the parties or by agreement of the parties. ...

Tex. R. Civ. P. 245.

      There has been virtually no discussion in published cases of what the 45 day notice requirement means in the context of a second trial setting. But there has been much discussion with regard to its meaning for a first trial setting. This is probably because of the wording of the Rule. As one court has expressed it; “by the clear language of rule 245, the forty-five day notice applies only to the first setting of the trial.” State Farm Fire and Cas. Co. v. Price, 845 S.W.2d 427, 431 (Tex. App.—Amarillo 1992, writ dism’d by agr.).

      Prior to the current version of the Rule, only 10 days notice of the first trial setting was required. The comments to the Rules and the cases acknowledge that the purpose of the amendment was to harmonize the Rule regarding trial settings with Rule 216 which specifies the proper procedure to obtain a jury trial. See Higginbotham v. Collateral Protection, Inc., 859 S.W.2d 487, 492 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Simpson v. Stem, 822 S.W.2d 323, 824 (Tex. App.—Waco 1992, orig. proceeding); Tex. R. Civ. P. 245, comment; Tex. R. Civ. P. 216. Rule 216 requires a jury demand be made, and the jury fee be paid, more than 30 days before the setting on the non-jury docket. Tex. R. Civ. P. 216. Because the previous version of Rule 245 required only 10 days notice of a trial setting, a trial could be set at a time when it was too late to exercise the right to trial by a jury. To prevent parties from losing the right to trial by a jury, the Rule was amended to require 45 days notice of a first setting. The purpose of the rule change is not an issue in this case. Spencer did not lose her right to a jury trial. Spencer had a jury trial.

      The misdirection which the majority follows is very subtle. It begins with the wording of Spencer’s issue. The issue focuses on getting 45 days notice of a trial setting rather than which setting the notice is for. The issue is worded: “The trial court erred by requiring appellant to proceed to trial with less than 45 days notice as required by Tex. R. Civ. Pro. 245.” The issue does not mention that it is only the first trial setting for which 45 days notice is required, and that the setting about which complaint is made was the second setting.

      The relevant question is: What is a “first setting” for trial? Can it mean, as the majority holds, that there is no “first setting” until the litigants are provided at least one notice of trial of not less than 45 days? That is certainly not how the Rule is written. See O’Connell v. O’Connell, 843 S.W.2d 212, 215 (Tex. App.—Texarkana 1992, no writ). Based upon the express language of the rule, if for any reason the trial is not held on the first setting, the length of notice that had been provided for the first setting is immaterial when considering the sufficiency of the notice of the second setting. The only issue regarding the sufficiency of the notice for the second setting is whether the notice meets minimum due process. Id.

      The errant focus on having at least one notice of 45 days for a trial setting is the result of not properly analyzing what constitutes a first setting. The majority has held that if an order comes from the trial court of a first setting that provides less than 45 days notice, the setting is “ineffectual.” We will return in a moment to the term “ineffectual,” but will focus for now on the effect of that holding.

      The effect of what the majority has held is that the trial court’s order noticing the trial setting on October 23 was no trial setting at all. If the setting is the equivalent of no setting at all, as the majority has held, the litigants may not need to do anything to avoid the consequence of the trial court’s order which sets a case with less than 45 days notice. It is as if a first setting without at least 45 days notice is a nullity because it is not authorized by Rule 245. But we know just because the trial court has done something not authorized by the Rules, does not make the trial court’s act a nullity. Ex Parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001). The potential ramifications of any other holding could be profound. See Id. By extension of the holding that the setting was “ineffectual,” does it mean that the trial never occurred? Does it mean that the trial occurred without any notice, in violation of one of the most fundamental tenants of due process? Of course not.

      We now return to the term that has caused the problem in construing Rule 245; “ineffectual.” Tex. R. Civ. P. 245. We are now the third court to use the term “ineffectual” in the context of construing Rule 245 without defining what the term means. It was first used by the Texarkana Court of Appeals in Bell in 1993. Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139 (Tex. App.—Texarkana 1993, writ denied). I believe the Texarkana Court was simply wrong when it held that because the notice of the first setting was ineffectual that the second setting “must necessarily be considered a first setting.” Id. at 140-41.

      Citing Bell, the Tyler Court of appeals used the term “ineffectual” in Hardin in 1995, and used it again in Platt in 1999. Hardin v. Hardin, 932 S.W.2d 566, 567 (Tex. App.—Tyler 1995, no pet.); Platt v. Platt, 991 S.W.2d 481, 484 (Tex. App.—Tyler 1999, no pet.). Neither Hardin nor Platt involved a second setting, and thus, did not examine the meaning of the term as applied to a first or second setting.

      Rather than the vague term “ineffectual,” I submit the proper term is “defective.” Notice of a first trial setting that is less than 45 days is defective. But notice of a first trial setting that is less that 45 days is still notice. It is still notice of the first trial setting. When properly objected to, the defective notice may be corrected by providing “any reasonable notice” of the second or subsequent setting. Tex. R. Civ. P. 245. A defective notice may be corrected by a later setting and notice that complies with due process. And, if not properly objected to, like most defects, the defect in the first setting is waived. Tex. R. App. P. 33.1.

      There was a notice of a first setting in this case. After deducting three days for service by mail, the notice provided only 42 days notice of the first trial setting. Spencer properly objected to the defective notice and moved for a continuance based upon the failure to give a full 45 days notice of the first setting. The continuance was granted. The trial date was reset during the same hearing immediately after the trial court granted the continuance. No objection was made to the length of notice given or date set for the second setting until several weeks later. Twelve days prior to trial, and then again 4 days prior to trial, Spencer moved for a continuance arguing there had been no setting that provided at least 45 days notice. The Rule only requires 45 days notice for a first setting. The second and third motions for continuance were attacking the sufficiency of the notice for the second trial setting. Thus, the trial court did not err in overruling the second and third motions for continuance which were based on the misdirected argument that the second setting provided less than 45 days notice in violation of Rule 245.

EVIDENCE PECULIAR TO THIS CASE

      The majority also addresses the admissibility of photographs because the same issue may arise during trial on remand. Because this issue is essentially peculiar to this case I will limit my comments expressing my disagreement with the majority’s analysis. The majority focuses only on whether the evidence of prior poor housekeeping is relevant to a determination that Spencer violated one of the predicate acts alleged as a basis for termination of her parental rights. The majority ignores the relevance of Spencer’s ability, or inability, to maintain an appropriate environment in which to raise children and its relevance to the issue of the best interest of J.B. While the relevance of good housekeeping may have been remote in time to the events surrounding termination, this goes to the weight and not the admissibility of the photographs. I would hold the trial court did not abuse its discretion in admitting the photographs of prior places where Spencer had lived.

RELIEF BEYOND THAT REQUESTED

      As previously noted, the majority has granted relief not requested by either party. The majority has set a new calendar from which to compute the mandatory dismissal date. The mandatory dismissal date is one of many factors that the trial court must consider when setting a trial date in termination cases. See Tex. Fam. Code. Ann. §§ 263.401, 263.403 (Vernon Supp. 2002). The trial court was aware of this statutory deadline by which a judgment had to be signed or certain actions taken. The trial court was concerned about having to return J.B. to the environment from which the child was taken if the judgment was not signed by the extended dismissal date. The attorney ad litem argued that it was in J.B.’s best interest to go to trial and get the issue of termination resolved. The trial court had to decide between additional discovery for the mother, versus J.B.’s best interest. Because I do not find that the trial court abused its discretion in denying the second and third motions for continuance on the basis that Spencer had not received a notice of 45 days, I do not have to craft a remedy regarding the mandatory dismissal date. The majority has, however, crafted a remedy to avoid the statutory consequences of reversing this case. Neither party has requested that we extend the dismissal date. I believe that the majority errs in granting relief that no party has requested.

BROAD FORM SUBMISSION

      Finally, I must comment on the majority’s decision to avoid deciding this case on one of the other issues presented. The majority has a clear holding in this court’s precedent to reach the same result, but for some inexplicable reason has chosen to avoid disposing of this case on that issue. The eighth issue is: “Does it violate appellant’s due process and due course of law rights for their parental rights to be terminated based on disjunctive allegations of conduct, but answered only on a broad-form question?” This court has previously held the answer to this issue is: “Yes.” In the Interest of B.L.D., 56 S.W.3d 203 (Tex. App.—Waco 2001, pet. granted). But yet, the majority declines to resolve this case on this clearly established precedent. I dissented from the court’s decision in B.L.D., and will continue to note my dissent on opinions decided on that basis until the precedential value of B.L.D. is resolved. It does seem odd, however, that the majority would choose to launch into murky water to resolve this case on a controversial theory when they could anchor the result to an issue directly presented in the case at hand. It leaves a discerning reader to wonder why.

CONCLUSION

      The majority reverses the case on Spencer’s first issue and then proceeds to address several other issues they think may occur on remand. No useful purpose would be fulfilled to state further disagreement with the majority on their discussion of the other issues they have addressed or to discuss the issues they have not addressed. I would overrule Spencer’s issue regarding the notice requirements of Rule 245 and the issues challenging the admission of Dr. Shinder’s testimony and the other evidence discussed. Accordingly, I respectfully dissent.

                                                                         TOM GRAY

                                                                         Justice

Dissenting opinion delivered and filed November 27, 2002

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