In the Interest of F.G., et al., Children--Appeal from 150th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-04-00681-CV

IN THE INTEREST OF F.G., et al., Children

From the 150th Judicial District Court, Bexar County, Texas

Trial Court No. 2001-PA-01004

Honorable Janet Littlejohn, Judge Presiding

Opinion by: Alma L. L pez, Chief Justice

Sitting: Alma L. L pez, Chief Justice

Catherine Stone, Justice

Rebecca Simmons, Justice

Delivered and Filed: December 21, 2005

AFFIRMED

Thomas and Yolanda Hanson appeal the trial court s judgment denying their petition in intervention and request for adoption. The trial court denied the petition based on its ruling that the Texas Department of Family and Protective Services had good cause to withhold its consent to the adoption of L.M.P., a minor, by the Hansons. The Hansons present three issues for review: 1) the trial court abused its discretion in finding that the Department had good cause to withhold its consent for the Hansons adoption of L.M.P.; 2) the trial court abused its discretion in denying the admission of videotape evidence offered by the Hansons; and 3) the trial court abused its discretion in denying the Hansons motion for new trial based on newly discovered evidence. We affirm the judgment of the trial court.

Background

The Department is the managing conservator of L.M.P. Ms. Hanson s brother, Jesse Pe a, is the birth father of L.M.P. Both Pe a and L.M.P. s birth mother, Blanca Garcia, voluntarily relinquished their parental rights to L.M.P. on October 16, 2002. Blanca is the biological mother of seven children, and at the time of this trial her rights had been terminated as to all except the youngest, Jesse Pe a, Jr. L.M.P. was placed in the home of her paternal aunt and uncle, the Hansons, in December of 2002. L.M.P. resided with the Hansons for nine months, and they expressed a desire to adopt her. On September 8, 2003, L.M.P. was removed from the Hansons home by the Department. A bench trial was held in June of 2004 to determine whether the Department had good cause to withhold its consent to the adoption of L.M.P. by the Hansons. At the conclusion of the trial, the court denied the Hansons petition in intervention and their request for adoption.

During the trial, conflicting testimony was given by both sides regarding whether or not the Department told the Hansons that L.M.P. was not allowed to visit with Blanca. The Hansons maintain that the Department did not tell them that visits with Blanca were prohibited until August of 2003. In fact, the Hansons assert that the Department encouraged them to allow L.M.P. to visit with her siblings and with Blanca. The Department maintains that the Hansons were advised from the beginning that L.M.P. was not to visit with Blanca. The Department considered unsupervised visits between Blanca and L.M.P. as a risk of danger to the child because Blanca continued to see Pe a despite allegations that he sexually abused two of her other daughters. Evidence was presented that the Hansons allowed L.M.P. to visit with Blanca on four or five occasions prior to August of 2003. Discussion

In their first issue, the Hansons contend that the trial court erred in finding the Department had good cause to refuse consent to adoption by the Hansons. Section 162.010(a) of the Family Code provides the following:

Unless the managing conservator is the petitioner, the written consent of a managing conservator to the adoption must be filed. The court may waive the requirement of consent by the managing conservator if the court finds that the consent is being refused or has been revoked without good cause. A hearing on the issue of consent shall be conducted by the court without a jury.

Tex. Fam. Code Ann. 162.010(a) (Vernon 2002). A managing conservator has good cause to refuse consent when it has a good faith reason to believe the best interest of the child requires that it withhold consent. See Chapman v. Home, 561 S.W.2d 265, 267 (Tex. Civ. App. Fort Worth 1978, no writ). A trial court s finding on good cause is reviewed for an abuse of discretion. See Rodriguez v. Miles, 655 S.W.2d 245, 249 (Tex. App. Corpus Christi 1983, no writ). A trial court does not abuse its discretion if some evidence of a substantive and probative character supports the trial court s decision. In re Gonzalez, 993 S.W.2d 147, 155 (Tex. App. San Antonio 1999, no pet.);see also In re M.P.J., No. 14-03-00746-CV, 2004 WL 1607507 at *4 (Tex. App. Houston [14th Dist.] July 20, 2004, pet. denied).

Here, there is evidence that the Department had a good faith reason to believe that refusing consent to adoption by the Hansons was in L.M.P. s best interest. Rosa Romo was employed by the Department to transport children to and from visits. Romo testified that on the morning of May 16, 2003, she was transporting Jesse Pe a, Jr. to visit Blanca when she saw L.M.P. at Blanca s home. Romo did not observe any other adults at the home.

Cillie Anderson is the supervisor of the Department s Sexual Abuse Unit. Anderson stated that she was opposed to the adoption by the Hansons based on continued issues of risk to the child. Anderson further testified that she believed the Hansons request to adopt L.M.P. was a sham because they had allowed L.M.P. to have contact with Blanca and because they had stated in the past that their goal was to reunify L.M.P. with her mother. Anderson further testified that Blanca herself had asked Anderson what she needed to do to get her daughter back. To Anderson, this comment indicated that the Hansons had encouraged Blanca to believe that she could regain custody of L.M.P.

Eliseo Mata, a social worker for the Department assigned to L.M.P. s case, testified that the Hansons committed neglectful supervision by leaving L.M.P. with Blanca on May 16, 2003. When asked whether he believed that the Hansons were good parents for L.M.P., Mata answered no, explaining that the Hansons lied about L.M.P. s biological father living with them and that Ms. Hanson believed that L.M.P. belonged with her biological mother.

Rebecca Vaughn, L.M.P. s therapist, testified that she was concerned about the protective ability that Ms. Hanson might have in the long term. Vaughn was also concerned that Ms. Hanson planned to reunify L.M.P. with Blanca. Vaughn testified: [Ms. Hanson] reported to me that she felt that [L.M.P.] was very bonded with her mother and that she was most happy and connected with her mother and wished that [L.M.P.] would be placed back with her mother. My big concern about [adoption by the Hansons] would be the contact with the mother and the lack of understanding that [L.M.P.] could be in danger.

Monica Hernandez, a Child Protective Services Specialist assigned to L.M.P. s case, testified that she did recommend to the Hansons that L.M.P. be allowed to visit with her other siblings. Hernandez further testified that both she and Anderson made it crystal clear to the Hansons in September or October of 2002 that L.M.P. could not have contact with Blanca.

The trial court, as fact finder, has the sole authority to resolve credibility issues and conflicts within the evidence. See McDowell v. McDowell, 143 S.W.3d 124, 130 (Tex. App. San Antonio 2004, pet. denied) (citing Leyva v. Pacheco, 358 S.W.2d 547, 549 (Tex. 1962)). Given the testimony presented, the trial court did not abuse its discretion in finding that the Department had good cause for withholding consent to the adoption of L.M.P. by the Hansons. The Hansons first issue is overruled.In their second issue, the Hansons contend that the trial court erred in refusing to admit videotape evidence showing the Hansons interacting with L.M.P. during a February 2004 visit. After L.M.P. was removed from the Hansons home, supervised visits between the Hansons and L.M.P. were ordered by the court. During one such visit, a video camera was set up to record the session. The Hansons assert that the Department intended to intimidate them and L.M.P. and to use the video to substantiate [the Department s] position of their consent being withheld in good faith.

The admission or exclusion of evidence rests within the sound discretion of the trial court. City of Brownsville v. Alvarado, 897 S.W.2d 750, 753 (Tex. 1995). The exclusion of evidence is reviewed under an abuse of discretion standard. McEwen v. Wal-Mart Stores, Inc., 975 S.W.2d 25, 27 (Tex. App. San Antonio 1998, pet. denied). If error exists, the party asserting the error has the burden to show the error probably caused the rendition of an improper judgment. See Tex. R. App. P. 44.1(a)(1); Cortez ex rel. Estate of Puentes v. HCCI-San Antonio, Inc., 131 S.W.3d 113, 119 (Tex. App. San Antonio 2004), aff d, 159 S.W.3d 87 (Tex. 2005). To show harm, the excluded evidence must be controlling on a material issue and not cumulative of other evidence. See Williams Distrib. Co. v. Franklin, 898 S.W.2d 816, 817 (Tex. 1995) (per curiam).

The trial court viewed the videotape and, as fact finder, determined that it was cumulative. I have had an opportunity to view the tape . . . of the visit that occurred in February between Mr. and Mrs. Hanson and the little girl [L.M.P.], and it will not be admitted into evidence because I think there is sufficient evidence to cover all of the matters that were on this tape by the testimony. Evidence is cumulative when it is of the same kind and tends to prove the same point as other evidence. In re Yarbrough, 719 S.W.2d 412, 415 (Tex. App. Amarillo 1986, no writ). The Hansons counsel stated that he had not seen the video himself but that his client could testify as to what was on the video and what happened within the context of that visit. Mr. Hanson testified that he objected to the camera being there during the visit because he feared the Department would somehow use the video against him. Mata testified that the Hansons objected on camera to the intrusiveness of the videotaping. The exclusion of evidence that merely duplicates other testimony from witnesses, even if improper, is not harmful error. Gee v. Liberty Mut. Fire Ins. Co., 765 S.W.2d 394, 397 (Tex. 1989). The Hansons second issue is overruled.

In their third issue, the Hansons contend that the trial court erred in denying their motion for new trial based on newly discovered evidence. The Hansons presented a Mediated Settlement Agreement Rule 11 Stipulation signed by Department employees and Blanca on September 30, 2002 stating, in part, The [D]epartment will pursue a home study for Yolanda Hanson and/or Janie Lebroke and encourage an open adoption. The Hansons were not parties to the agreement. The Hansons contend that this evidence suggests that Department employees committed perjury at the June 2004 trial because their oral testimony was contrary to the September 30, 2002 agreement. The gist of the Hansons contention is that contact with Blanca would be permitted if an open adoption was being encouraged.

The Hansons motion for new trial was filed on November 4, 2004, sixty-five days after the August 31, 2004 judgment was signed by the trial court. // Texas Rule of Civil Procedure 329b requires that a motion for new trial be filed prior to or within thirty days after the judgment complained of is signed. Tex. R. Civ. P. 329b(a). An untimely motion for new trial is a nullity for purposes of preserving issues for appellate review. Moritz v. Preiss, 121 S.W.3d 715, 720 (Tex. 2003). In addition to being untimely, the Hansons motion fails on other grounds.

Whether the trial court grants a motion for new trial based on newly discovered evidence is a matter within its discretion. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983). The trial court s decision will not be disturbed absent a manifest abuse of discretion. Id. When a trial court refuses to grant or deny a motion based on newly discovered evidence, every reasonable presumption will be made in favor of the trial court s decision. Id. at 809-10. A party seeking a new trial on the ground of newly discovered evidence must satisfy the court that: 1) the evidence came to his knowledge since the trial; 2) it was not owing to want of due diligence that the evidence had not come to his attention sooner; 3) the evidence is not cumulative; and 4) the evidence is so material that it would probably produce a different result if a new trial were granted. Id. at 809.

The Hansons motion for new trial based on newly discovered evidence fails on several grounds. First, the September 30, 2002 agreement was known to the Hansons before trial. At a hearing on October 1, 2003, the Hansons attorney extensively questioned Department employees about the agreement. // Second, even if the Hansons were not aware of the agreement before trial, the agreement had been in the court s file since October 2, 2002, more than twenty months before the final hearing in the case; therefore, a question of the Hansons due diligence in discovering the evidence arises. Finally, based on the totality of the evidence, it appears that the agreement was not so material that it would probably produce a different result if a new trial were granted. The trial court heard from numerous witnesses who testified that the Department informed the Hansons during several discussions that visits between L.M.P. and Blanca were not permitted. These discussions would have taken place after the September 30, 2002 agreement was signed. Furthermore, the Hansons were not parties to the September 20, 2002 agreement. As such, there was no reason for the Hansons to believe that an open adoption was to take place. In sum, the settlement agreement was not new evidence, the Hansons failed to show that they exercised due diligence in obtaining the agreement before trial, and they failed to show that the agreement would have led to a different result in a new trial. The trial court did not abuse its discretion in denying the Hansons motion for new trial based on newly discovered evidence, and the Hansons third issue is overruled.

ConclusionThe judgment of the trial court is affirmed.

Alma L. L pez, Chief Justice