In the Interest of K.Y. and K.Y., Minor Children.
Court of Appeals of Texas, Houston (14th Dist.).
*705 Kim Richardson, Freeport and Shayna Lynn Rosen Taibel, Angleton, TX, for appellants.
Jeri Yenne and Erinn Genelle Brown, Angleton, TX, for appellees.
Panel consists of Justices YATES, GUZMAN, and BROWN.
OPINION
LESLIE B. YATES, Justice.
Appellant J.Y. appeals from a judgment terminating his parental rights to his minor children, K.Y. and K.Y. In five issues, appellant argues that appellee the Texas Department of Family and Protective Services (DFPS) failed to allege new facts when it refiled the termination suit against him and that the trial court lacked jurisdiction, failed to join a necessary party, and erred in admitting autopsy photographs of appellant's stepdaughter, whom he was convicted of murdering. We affirm.
I. Factual and Procedural Background
In 1999, B.F. and her daughter by a previous relationship, A.F., began living with appellant. During the six years that they lived together, appellant and B.F. had two children together, K.Y. and K.Y. B.F. testified at trial that although appellant never harmed K.Y. and K.Y., he mistreated A.F. Apparently believing her to be possessed by the devil, appellant called A.F. derogatory names and forced her to copy hundreds of pages from the Bible while standing up. Appellant would not allow A.F. to eat with the family and allowed her to eat only one meal per day, usually consisting of beans and sardines, which he forced her to eat quickly. Appellant required A.F. to stay in her room and not interact with the rest of the family. He was often physically abusive to A.F., including whipping her buttocks to the point of bleeding and hitting her repeatedly all over her body, including her head and abdomen.
A.F. died in December of 2003, at the age of twelve. B.F. testified that A.F. had not been feeling well that day. That evening, appellant went into A.F.'s room, and B.F. heard mumbling and some thumps. *706 Appellant then came out and told B.F. not to panic and that A.F. was not breathing. Appellant packed some belongings and left the house, taking all the phones with him. Several hours later, B.F. called 911, and A.F. was dead when emergency personnel arrived. Appellant was arrested shortly thereafter. According to the chief medical examiner, A.F. died as a result of multiple blunt force trauma, with the contributory cause of death being chronic child abuse. A.F. was severely malnourished and emaciated, several of her internal organs had been damaged, she had multiple layers of scarring on her buttocks, and she was bruised literally from head to toe.
After being notified that the cause of A.F.'s death was chronic child abuse, DFPS removed K.Y. and K.Y. from the home. They were placed with a foster family, with whom they have lived since and who want to adopt them. On December 30, 2003, DFPS filed an original petition seeking conservatorship of the children and termination of both parents' parental rights. On April 19, 2005, B.F. voluntarily relinquished her parental rights to the children. On June 21, 2005, the district court dismissed the remaining claims against appellant without prejudice. DFPS refiled the suit to terminate appellant's parental rights on June 22, 2005. In October 2005, appellant was convicted of murdering A.F. and sentenced to life in prison.[1] On September 14, 2006, the second termination suit against appellant was dismissed without prejudice. On September 15, 2006, DFPS filed suit for a third time to terminate appellant's parental rights. The case proceeded to trial in February 2007, and a jury determined that termination of appellant's parental rights was warranted and in the children's best interest. This appeal followed.
II. Jurisdiction
A. Home State Jurisdiction
In his second issue, for the first time on appeal, appellant challenges the trial court's subject matter jurisdiction. He argues that the trial court lacked jurisdiction because the children moved to Oklahoma and thus Texas was no longer their home state. Subject matter jurisdiction is a question of law, to which we apply a de novo standard of review. Tex. Dep't of Parks & Wildlife v. Miranda,
Section 152.201(a)(1) of the Family Code provides that a Texas court has jurisdiction to make an initial child custody determination if Texas is the home state of the child on the date of the commencement of the proceeding or was the home state of the child within six months before the commencement of the proceeding and the child is absent from Texas but a parent or person acting as a parent continues to live in Texas. TEX. FAM.CODE ANN. § 152.201(a)(1) (Vernon 2002). "Home state" means the state in which a child lived with a parent or a person acting as a parent for at least six consecutive months immediately before the commencement of a child custody proceeding. Id. § 152.102(7). At all times during this proceeding, the children's parents lived in Texas. Thus, the central question is whether Texas was the children's home state on the date of, or within six months before, commencement of this proceeding. See In re Burk,
*707 DFPS filed the third suit to terminate appellant's parental rights on September 15, 2006. Appellant claims the children moved to Oklahoma a year earlier, meaning Texas could not have been their home state, but this is not supported by the record. The children were born and lived in Texas until May of 2006. Their foster father moved to Oklahoma during the fall or winter of 2005. However, the children and their foster mother continued to live in Texas for several more months, and they visited Oklahoma on a monthly basis until May 2006 when the family obtained permission from DFPS to permanently move to Oklahoma. Appellant insists that the whole family actually moved together and that the Texas residence was merely a fiction. There is no evidence in the record to support such a claim. The only evidence shows that the foster mother and the children maintained their house and possessions in Texas and lived in Texas, with frequent visits to Oklahoma, until May 2006. Such visits do not establish that the children moved from Texas, thereby creating gaps in the six month home state jurisdiction time frame. See In re Schoeffel,
B. Interlocutory Appeal
In his third issue, appellant claims the trial court did not have jurisdiction to proceed with trial in February 2007 because the First Court of Appeals still had appellate jurisdiction over the case at that time. The trial court entered an order extending temporary orders on September 28, 2006, naming DFPS as temporary managing conservator. Appellant filed a notice of appeal from this interlocutory order, and the appeal was sent to the First Court of Appeals. However, because appellant failed to perfect the appeal by paying the filing fees or establishing indigency, on January 11, 2007 the First Court issued a memorandum opinion dismissing appellant's appeal. See Yost v. Brazoria County Children's Protective Servs., No. 01-06-00907-CV,
Texas Rule of Appellate Procedure 29.5 provides that when, as in this case, an appeal from an interlocutory order is pending, the trial court retains jurisdiction of the case and may make further orders and may proceed with a trial on the merits. Thus, the mere pendency of the interlocutory appeal did not deprive the trial *708 court of jurisdiction to conduct the trial. Rule 29.5 further provides that the trial court must not make an order that (1) is inconsistent with any appellate court temporary order or (2) interferes with or impairs the jurisdiction of the appellate court or the effectiveness of any relief sought or that may be granted on appeal. The trial court's final judgment is not inconsistent with any appellate court temporary orders, and it did not prevent the appellate court from reviewing complaints made regarding the trial court's temporary orders. See Tanguy v. Laux,
III. Family Code Section 263.401
In his first issue, appellant maintains the trial court erred in reappointing DFPS as temporary managing conservator of the children after DFPS filed the third termination suit because DFPS failed to satisfy the legal requirements of section 263.401 of the Texas Family Code. See TEX. FAM.CODE ANN. § 263.401 (Vernon Supp.2008). When DFPS files a suit affecting the parent-child relationship, section 263.401 allows a twelve month period in which to prosecute the suit, with a single 180 day extension. Id. § 263.401(a), (b). If a final order is not rendered within this time frame, the suit must be dismissed without prejudice. Id. § 263.401(a), (c). Once a suit is dismissed without prejudice, DFPS may refile the suit asserting the same grounds for termination originally alleged. See In re M.N.G.,
The second termination suit was dismissed without prejudice on September 14, 2006. The next day, DFPS filed the third termination suit, and the trial court signed an order reappointing DFPS as temporary managing conservator of the children. Appellant claims the trial court erred because DFPS failed to allege new facts when it refiled the termination suit. DFPS argues that it did allege new facts *709 because the second petition alleged that appellant was incarcerated on charges of murdering A.F. while the third petition alleged that appellant had been convicted of the murder and requested termination on an additional ground based on this conviction. See TEX. FAM.CODE ANN. § 161.001(1)(Q) (Vernon Supp.2008) (authorizing termination of parental rights in certain circumstances involving parent's conviction of offense). We agree with DFPS that these new facts and the additional ground for termination based on these facts were sufficient to allow DFPS to refile and maintain temporary custody of the children. Appellant argues that nothing new that would justify termination actually occurred in the single day between the dismissal of the second suit and the refiling of the third suit. However, we compare the allegations in the petitions, and the allegations clearly changed in the third petition. See In re L.J.S.,
IV. Admission of Autopsy Photographs
In his fourth issue, appellant claims the trial court erred in admitting autopsy photographs of A.F. We review a trial court's decision to admit photographs for an abuse of discretion. Gallo v. State,
At issue are seven of the nine autopsy photographs of A.F. that the trial court admitted during the medical examiner's testimony. Those photographs are in color and are printed on eight and a half by eleven inch plain paper. Five photographs show the state of A.F.'s body at the time of her death, including the thinness of her limbs and overall body, her lack of muscle tone, and extensive bruising on her head, face, arms, legs, and torso. The other two photographs depict removed internal organs that had been damaged by physical abuse to her abdomen. The medical examiner used these photographs in his testimony to explain that A.F. was severely malnourished and had suffered extensive and repeated instances of physical abuse, some of which directly caused her death.
Appellant first contends that the photographs were inadmissible because they are irrelevant. Evidence is relevant if it has the 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. Generally, photographs are admissible if oral testimony as to the matters depicted in the photographs is also admissible. Gallo,
Appellant contends that even if the photographs are relevant, the trial court erred in admitting them under Texas Rule of Evidence 403 because they are graphic and cumulative. Rule 403 provides that relevant evidence can be excluded if its probative value is substantially outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury or by considerations such as needless presentation of cumulative evidence. Rule 403 favors the admission of relevant evidence and carries a presumption that relevant evidence will be more probative than prejudicial. Gallo,
Appellant complains that all of the photographs should have been excluded under Rule 403 because they are needlessly cumulative of the medical examiner's testimony explaining A.F.'s injuries. However, as already discussed, these pictures were important to assisting the jury in understanding the medical examiner's testimony, and visual evidence has significant probative value apart from testimonial evidence on the same subject. See Gallo,
Exhibit 46 depicts A.F.'s unclothed body from her abdomen to her forehead and shows extensive bruising, emaciation, and sunken eyes, which are shown partially open. Appellant argues that this photograph is unfairly prejudicial because it is graphic and needlessly cumulative of other photographs of A.F.'s injuries. Even if this photograph may be disturbing, that alone does not render it inadmissible. See In re C.J.F.
Finally, appellant asserts that two photographs showing A.F.'s stomach, esophagus, small bowel, and liver, which had been removed and photographed away from her body, are graphic and unfairly prejudicial. That these organs were cleaned and photographed separate from the body decreases their gruesomeness. See Salazar v. State,
A trial court abuses its discretion in admitting photographs only if their probative value is small and the risk of inflaming the jury is great. See Ramirez,
For these reasons, we overrule appellant's fourth issue.
V. Failure to Join a Necessary Party
In his fifth issue, appellant claims that the termination suit against him should be dismissed because, even though she had already relinquished her parental rights, DFPS failed to serve B.F., the children's mother, a necessary party to the suit. See TEX. FAM.CODE ANN. § 102.009(a)(7) (Vernon Supp.2008) (providing that in suit affecting parent-child relationship, each parent as to whom the parent-child relationship has not been terminated must be served as a necessary party unless process has been waived). A party intending to appeal an order in a suit affecting the parent-child relationship must file with the trial court a statement of points on which the party intends to appeal. See TEX. FAM.CODE ANN. § 263.405(b)(2) (Vernon Supp.2008). Any issue not included in a timely statement of appellate points may not be raised on appeal. In re T.T.,
Having overruled of appellant's issues, we affirm the trial court's judgment.
NOTES
Notes
[1] See Yost v. State,
[2] Appellant cites several cases for the proposition that a trial court loses jurisdiction over the cause while the appeal is pending, but those cases involve trial courts that changed or modified the final judgment after appeal had been taken from that final judgment. See, e.g., Robertson v. Ranger Ins. Co.,
[3] Appellant also failed to include in his statement of points the jurisdictional issues he raises in his second and third issues. Because these issues go to subject matter jurisdiction, we must nevertheless consider them. See In re J.B.W.,