Opinion
NO. 09-15-00370-CV
01-21-2016
IN THE INTEREST OF C.J.P. JR., K.E.P. AND C.K.P.
On Appeal from the 88th District Court Tyler County, Texas
Trial Cause No. 22,797
MEMORANDUM OPINION
In this parental rights termination case, we must decide whether the appellant, by failing to lodge a complaint about the charge before the trial court submitted the charge to the jury, waived his complaints that the trial court submitted a broad form charge. We hold that the appellant's objections to the charge were waived.
This appeal involves the involuntary termination of the parent-child relationship between C.P. (Father) and three of his children, C.J.P. Jr., K.E.P. and C.K.P. The issues presented in the case were tried to a jury. At the conclusion of the trial, with respect to each of Father's three children, the jury found by clear and convincing evidence that five statutory grounds supported terminating Father's parental rights. See Tex. Fam. Code Ann. § 161.001(b)(1)(D), (E), (N), (O), (P) (West Supp. 2015). Additionally, with respect to each child, the jury found that it was in that child's best interest to terminate Father's parental rights. See id. § 161.001(b)(2) (West Supp. 2015).
To protect the identity of the parties, they are identified by their initials. See Tex. R. App. P. 9.8. The mother of the children voluntarily relinquished her parental rights to the Texas Department of Family and Protective Services. Based on the children's mother's relinquishment of her rights, Mother's rights were also terminated in the proceedings in court below. However, Mother did not appeal from the final judgment terminating her parental rights, and the portions of the judgment pertaining to Mother are not the subject of Father's appeal.
In the only issue he presents in his appeal, Father contends the trial court erred by submitting a broad-form charge that did not require at least ten of the jurors to agree regarding at least one of the five specific grounds on which the jury agreed that Father's rights should be terminated. Although Father concedes that he did not object to the charge before the trial court submitted it to the jury, he nevertheless argues that we should review his complaints about the charge for egregious harm under the standard of review that applies to criminal cases. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g).
Under the charge the trial court submitted to the jury, the jury was asked to render a separate verdict as to each child. Each question asked the jury: "Should the parent-child relationship between [C.P.] and the child, [name of child], be terminated[,]" immediately followed by a list of five specific reasons on which the jury's decision, if favoring termination, had been based. The jury was instructed to circle the various grounds on which its decision to terminate Father's rights to each child was based.
The charge included a general instructions section, which is consistent with the form instructions that were adopted by the Supreme Court in 2005, but which were revised in 2011. With respect to arriving at a verdict, the charge the trial court submitted to the jury instructed as follows:
It appears the jury instructions the trial court gave the jury were based on an obsolete form. See Tex. R. Civ. P. 226a, 68 Tex. B.J. 202, 205 (Tex. 2005, superseded 2011).
Unless otherwise instructed, you may answer a question upon the vote of ten or more members of the jury. If you answer more than one question upon the vote of ten or more jurors, the same group of at least ten of you must agree upon the answers to each of those questions. If the verdict and all of the answers therein are reached by unanimous agreement, the presiding juror shall sign the verdict for the entire jury. If any juror disagrees as to any question made by the
verdict, then jurors who agree to all findings shall each sign the verdicts.
The instruction form for the general instructions portion of the charge, currently prescribed by the Texas Supreme Court for use in cases involving twelve jurors provides as follows:
The answers to the questions must be based on the decision of at least 10 of the 12 jurors. The same 10 jurors must agree on every answer. Do not agree to be bound by a vote of anything less than 10 jurors, even if it would be a majority.
On each of the verdict forms, the jury answered "Yes" and circled all five of the grounds listed in the charge to signify its reasons for terminating Father's parental rights with respect to each of Father's three children. After the jury returned the verdict, the trial court noticed that all twelve of the jurors had signed the verdict certificate, although the court's instruction to the jury indicated that only the presiding juror was required to sign if the jury's verdict was unanimous. Before discharging the jury, the trial court asked the presiding juror whether the verdict was unanimous; the presiding juror responded: "Yes, sir." Although Father's attorney was asked if she wanted to poll the jury, Father's attorney declined to do so.
Father argues that principles of due process require that we review his complaints about the charge even though he failed to lodge any objections to the charge during the trial. We disagree that Father's due process rights require that we review error that he failed to properly preserve by lodging a timely objection to the charge. See Tex. R. App. P. 33.1 (preserving error for appellate review requires the complaining party to show that he presented his complaint to the trial court in a timely request, objection, or motion and that the trial court ruled on the request). "As a general rule, due process does not mandate that appellate courts review unpreserved complaints of charge error in parental rights termination cases." In re B.L.D., 113 S.W.3d 340, 354 (Tex. 2003). If a party has complaints relating to the court's use of a broad form charge in a parental-rights termination case, the complaints are generally required to be raised first in the trial court or they are waived. In re A.F., 113 S.W.3d 363, 364 (Tex. 2003). "[O]ur law on preservation of error does not permit, and due process does not require, a court of appeals to review an unpreserved complaint of charge error in parental-rights termination cases." In re A.V., 113 S.W.3d 355, 358 (Tex. 2003).
In some termination cases, the calibration of a defendant's rights to due process may require an appellate court to review an unpreserved complaint to ensure that the procedures followed by the trial court comport with the standards provided to a parent whose parental rights are being terminated. B.L.D., 113 S.W.3d at 354. As was the case in B.L.D., however, neither a claim of ineffective assistance of counsel nor a claim of insufficient evidence has been brought forward on appeal. Id. Moreover, under Texas law, trial courts may use broad form charges to submit termination cases to juries. Id; see Tex. Dep't of Human Servs. v. E.B., 802 S.W.2d 647, 649 (Tex. 1990); see also Tex. R. Civ. P. 277, 292. We overrule Father's sole appellate issue, and we affirm the trial court's judgment.
AFFIRMED.
/s/_________
HOLLIS HORTON
Justice Submitted on December 7, 2015
Opinion Delivered January 21, 2016 Before McKeithen, C.J., Kreger and Horton, JJ.
Tex. R. Civ. P. 226a. The instructions near the end of the charge about signing the verdict certificate provide: [Unless otherwise instructed] You may answer the questions on a vote of 10 jurors. The same 10 jurors must agree on every answer in the charge. This means you may not have one group of 10 jurors agree on one answer and a different group of 10 jurors agree on another answer.