In the Interest of M. W., a child--Appeal from 7th District Court of Smith County

NO. 12-02-00130-CV
IN THE COURT OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT
TYLER, TEXAS
APPEAL FROM THE 7TH

IN THE INTEREST OF

 
JUDICIAL DISTRICT COURT OF

M.W., A CHILD

 
SMITH COUNTY, TEXASMEMORANDUM OPINION

Diana Bryant ("Bryant") appeals the termination of her parental rights. Bryant presents three issues on appeal. We affirm.

 
Background

Bryant and Tony Brent Warren ("Tony") are the parents of M.W. Sammy Warren ("Warren") is M.W.'s paternal grandfather, and Bessie Bryant ("Bessie") is M.W.'s maternal grandmother. A custody suit was initiated by Tony against Bryant when M.W. was approximately three years old. Linda Warren ("Linda"), M.W.'s paternal grandmother, intervened in the suit. Following the apparently acrimonious custody suit, Linda had "primary custody" of M.W. On February 28, 1998, Bryant shot and killed Linda in M.W.'s presence. Bryant was convicted of murder in Smith County, Texas, and was sentenced to life in prison.

On April 9, 1998, Warren was appointed temporary managing conservator of M.W., and Bryant and Tony were appointed temporary possessory conservators. However, the court ordered that Bryant should not have any contact or visitation with M.W. On August 15, 2001, Warren filed an amended intervention in the ongoing custody suit, (1) seeking to be appointed managing conservator. Warren also asked the court to terminate Bryant's parental rights and appoint Tony as possessory conservator. (2) At some point, Bessie petitioned the trial court for grandparent access. On December 17, 2001, a jury trial was held, and all parties but Tony appeared for trial. The proposed jury charge contained instructions that included a recitation of the rights and responsibilities of a parent, a definition of "clear and convincing evidence,"and a list of factors to consider in determining the best interest of the child. The charge alleged four statutory predicate grounds for termination disjunctively, and instructed the jury that termination must also be in the child's best interest. Further, the jury charge proposed one broad-form question that asked if the parent-child relationship should be terminated. Bryant did not object to the jury charge. On December 19, 2001, a unanimous jury found that the parent-child relationship between Bryant and M.W. should be terminated, that Bessie should be denied grandparent access, and that Warren should be appointed sole managing conservator of M.W. On February 21, 2002, the court ordered the parent-child relationship between Bryant and M.W. terminated, denied Bessie grandparent access, and appointed Warren managing conservator of the child. This appeal followed.

 

Jury Charge Error

In her first issue, Bryant concedes that she did not object to the jury charge at trial. However, she contends that a jury charge error on a core issue in a termination case may be raised on appeal even when no objection was asserted at trial. In her second and third issues, Bryant contends that reversal and remand are necessary because an invalid claim was included in the jury charge, and the broad-form submission format conflicted with the "super majority" requirement in termination cases, violating her fundamental rights and right to due process. These last two issues may be reviewed only if jury charge error was not waived. Although Warren agrees that unpreserved jury charge error may be raised on appeal, we must determine whether case law supports Bryant's argument.

Applicable Law

In order to present an issue for appellate review, the record must show that a complaint was made to the trial court by a timely request, objection, or motion. Tex. R. App. P. 33.1(a)(1). The request, objection, or motion must state the grounds for the ruling that the complaining party sought from the trial court with sufficient specificity to make the trial court aware of the complaint. Tex. R. App. P. 33.1(a)(1)(A). The trial court must have ruled on the request, objection, or motion, either expressly or implicitly. Tex. R. App. P. 33.1(a)(2)(A). If the trial court refused to rule, the complaining party must have objected to the refusal. Tex. R. App. P. 33.1(a)(2)(B).

Nonetheless, Bryant cites two cases in which the Waco Court of Appeals held that procedural due process in a termination case mandates appellate review of unpreserved complaints that involve the two core issues to be decided by a jury in a termination case. In re J.F.C., 57 S.W.3d 66, 72 (Tex. App.-Waco 2001), rev'd on other grounds, 96 S.W.3d 256, 259-60 (Tex. 2002); In re A.P., 42 S.W.3d 248, 254-56 (Tex. App.-Waco 2001, no writ), disapproved on other grounds, In re J.F.C., 96 S.W.3d 256, 267 n.39 (Tex. 2002). The two core issues in a jury charge are the statutory predicate grounds for termination and whether termination is in the best interest of the child. In re J.F.C., 57 S.W.3d at 72 n.5. However, these cases are not controlling.

In In re B.L.D., 46 Tex. Sup. Ct. J. 978, 2003 WL 21512622 (July 3, 2003), the trial court submitted the two grounds for termination alleged against each parent disjunctively and four broad-form questions, requiring the jury to determine whether the parent-child relationship should be terminated between each parent and each child. Id. at 980. Neither the parents nor the Department objected to the form of the jury charge. Id. On appeal, the court of appeals held that submission of the grounds for termination disjunctively, together with the broad-form jury questions, violated due process in termination cases. Id.

The Texas Supreme Court reversed the judgment of the court of appeals, pointing out recent decisions holding that "complaints of error in broad-form submission must be preserved by objection at trial." Id. at 984, 988 (citing Harris County v. Smith, 96 S.W.3d 230, 236 (Tex. 2002); Crown Life Ins. Co. v. Casteel, 22 S.W.3d 378, 389 (Tex. 2000)). The court could find no precedent in criminal or civil jurisprudence to support the court of appeals' conclusion that "core" jury charge issues in termination cases should be reviewed even if not preserved. Id. at 985. Further, using the United States Supreme Court's analytical framework for determining whether termination procedures satisfied due process, the court found that, as a general rule, due process "does not mandate that appellate courts review unpreserved complaints of charge error in parental rights termination cases." Id. at 985-87. Consequently, the court held that, under the circumstances, "a court of appeals must not retreat from our error-preservation standards to review unpreserved charge error in parental rights termination cases." Id. at 988.

Analysis

At trial, Bryant failed to object to the charge and, thus, her complaint of jury charge error was unpreserved. As in In re B.L.D., the jury charge followed precedent regarding broad-form questions, tracked the statutory language of the Family Code, and complied with Texas Rules of Civil Procedure 277 and 292. See id. Therefore, according to the Texas Supreme Court, we may not review on appeal Bryant's unpreserved jury charge error. See id. Accordingly, Bryant's first issue is overruled.

 

Conclusion

Having determined that we cannot review unpreserved jury charge error, it is unnecessary for us to address Bryant's second and third issues. Tex. R. App. P. 47.1. Therefore, the judgment of the trial court is affirmed.

 

DIANE DEVASTO

Justice

 

Opinion delivered September 30, 2003.

Panel consisted of Worthen, C.J. and DeVasto, J.

Griffith, J., not participating

 
(PUBLISH)

1. Warren's intervention was filed in the same custody suit previously referred to between Bryant, Tony, and Linda.

2. The record does not contain the initial filings in the custody suit previously referred to between Tony, Bryant, and Linda. Further, the record fails to include the order awarding Linda "primary custody" of M.W. There is, in fact, no document in the record that was filed before the court's order appointing Warren temporary managing conservator of M.W. on April 9, 1998.