329 S.W.3d 674
Tex. App.2010Background
- Supplemental opinion on rehearing in a parental-toster termination case from the Fourteenth Court of Appeals (No. 14-09-00644-CV) involving M.C.G., appealed from the 310th District Court, Harris County, Texas.
- Appellant sought rehearing arguing the court relied on improper evidence (prior-seat testimony) to affirm termination for failure to provide support.
- The court clarifies that testimony from prior hearings is admissible only if admitted into evidence; in this case it was not admitted at the termination trial.
- Based on the termination-trial record alone, there was insufficient evidence to sustain termination for failure to provide support.
- The court identifies an alternative ground for termination: appellant’s failure to complete his family services plan, specifically the failure to undergo individual therapy.
- The caseworker testified appellant was accepted into individual counseling but did not attend; appellant argues a paperwork mistake excuses noncompliance, but that mistake was from a prior hearing not admitted at the termination trial.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination for failure to provide support was supported by admissible evidence | Appellant argues prior-hearing testimony improperly used; no admissible evidence supports lack of support. | Termination based on trial-evidence suffices but relies on admitted evidence only. | Insufficient evidence at trial to support termination for failure to provide support. |
| Whether termination for failure to complete the family services plan is supported | Appellant contends paperwork mistake excuses noncompliance. | No excusal for failure to comply; record shows noncompliance despite attempted counseling. | Appellant did not fully comply; termination grounded on failure to complete the plan is supportable. |
Key Cases Cited
- In re C.L., 304 S.W.3d 512 (Tex. App.—Waco 2009) (prior-hearing testimony admissibility when not admitted at trial)
- Garza v. State, 996 S.W.2d 276 (Tex. App.—Dallas 1999) (admission of prior testimony limitations)
- Escamilla v. Estate of Escamilla, 921 S.W.2d 723 (Tex. App.—Corpus Christi 1996) (prior testimony not admitted at trial cannot support findings)
- In re J.S., 291 S.W.3d 60 (Tex. App.—Eastland 2009) (no excusing admissibility in family-service contexts)
- Wilson v. State, 116 S.W.3d 923 (Tex. App.—Dallas 2003) (no excuses for noncompliance under governing codes)
- In re T.N.F., 205 S.W.3d 625 (Tex. App.—Waco 2006) (best-interest considerations and noncompliance context)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (standards for termination and best interest)
- In re S.K.S., 648 S.W.2d 402 (Tex. App.—San Antonio 1983) (noncompliance implications in termination context)