












 
 
 
 
 
 
 
 
 
                                                         In
The
                                                Court
of Appeals
                        Sixth
Appellate District of Texas at Texarkana
 
                                                ______________________________
 
                                                             No. 06-11-00079-CV
                                                ______________________________
 
 
 
                   IN THE INTEREST OF R. N., R. N., R.
N., CHILDREN
 
 
 
                                                                                                  

 
 
                                       On Appeal from the 354th
Judicial District Court
                                                              Hunt County, Texas
                                                            Trial
Court No. 74,882
 
                                                          
                                        
 
 
                                          Before Morriss, C.J.,
Carter and Moseley, JJ.
                                                        Opinion by Justice Moseley




                                                                   O P I N I O N
 
            Parents, Roy and Kimberly Neyens, appeal the termination of their parental rights to
their three children, an action sought by the Texas Department of Family and
Protective Services, Child Protective Services Division (CPS).  Although the Neyenses
make no challenge to the sufficiency of the evidence supporting the grounds for
termination or finding concerning the best interests of the children, they
complain of the trial court’s exclusion of certain evidence and its refusal to
declare a mistrial.  We affirm the
judgment of the trial court. 
I.          Trial
Court Did Not Erroneously Exclude Testimony Regarding Foster Home 
            A.        Standard of Review
            The admission or exclusion of evidence is a
matter within the sound discretion of the trial court, which is reviewed under
an abuse of discretion standard.  City of Brownsville v. Alvarado, 897
S.W.2d 750, 753 (Tex. 1995); In re R.A.L.,
291 S.W.3d 438, 446 (Tex. App.—Texarkana 2009, no pet.).  A trial court abuses its discretion if its
decision is arbitrary, unreasonable, and without reference to any guiding rules
and principles.  Mercedes-Benz Credit Corp. v. Rhyne, 925
S.W.2d 664, 666 (Tex. 1996).  “We will
not conclude the trial court abused its discretion merely because, in the same
circumstances, we would have ruled differently.”  Manasco v. Ins. Co. of
State of Penn., 89 S.W.3d 239, 241 (Tex. App.—Texarkana 2002, no pet.). 
            “To reverse a judgment based upon
error in the admission or exclusion of evidence, the appellant must show that
the trial court committed error and that the error was reasonably calculated to
cause and probably did cause rendition of an improper judgment.”  R.A.L.,
291 S.W.3d at 446 (citing Tex. R. App.
P. 44.1(a)(1); McCraw v. Maris,
828 S.W.2d 756, 757 (Tex. 1992)).  In
making this determination, we must review the entire record. 
            B.        The Record 
            The Neyenses
attempted to introduce evidence of their concerns about certain medications
which were being administered to the children, an alleged instance of sexual
abuse, and injuries sustained while the children were under foster care.  CPS objected to this line of questioning
during the cross-examination of Kerry Brown, an employee of CPS.  Counsel for Mr. Neyens
argued that Brown’s testimony 
goes
to the – [parents’] level of cooperation and completion of services and trust
with CPS.  And that – that whole trust level
was broken down at the time.  That they
didn’t feel it was handled, the situations with the children, adequately.  And also supports our argument that they’re
good parents and their vigilance as to the care or lack thereof that their
children were receiving in care.  So he
feels that it really impacts his case in terms of his service completion and
best interest of the children. 
 
            An offer of proof was made outside
of the presence of the jury.  With
respect to medication being given to the children, Brown merely testified that
the children were prescribed medication by a psychiatrist who was treating them,
but the parents disagreed with administration of the medication.  As to allegations of sexual abuse of the
children, Brown testified that although one of the children alleged “that
another child in the home was giving him a butt massage,” an investigation by
CPS into the incident initially ruled out the alleged sexual abuse.  However, concerns arose as to whether the
child was coached by the foster mother, and all of the Neyenses’
children were removed from that foster home and placed in a different foster
home, as the Neyenses had requested.  
            The trial court sustained CPS’s
objection to this testimony, stating:
What
happened in foster care has nothing to do with whether there [were] grounds to
remove the children in the first place and secondly, whether the parents have
responded appropriately that termination should not occur.  
            If down the road we get into a
situation as to who should be the managing conservator of these children, if
they’re not terminated, then I think the conduct of what happened in foster
care may be relevant.  
            But as to the issue of termination
it’s not. . . .
            So I’ll instruct counsel not to
enquire further about the condition or treatment of the children in foster care
for the purpose of this hearing.  
 
            Later in the trial, counsel for Mr. Neyens completed the cross-examination of Court Appointed
Special Advocates (CASA) case supervisor, Shila
Whitaker.  Counsel “pass[ed] the witness,” asked the trial court to approach the
bench, and told the judge that “[t]here are some questions I need to ask
[Whitaker] outside the presence of the jury, about the foster home incident,
for the record.”  Noting that “[t]his is
an offer of proof outside the presence of the jury,” the court heard testimony
from Whitaker on voir dire that one of the Neyenses’ children indicated that he had received a butt
massage from a foster brother.  Whitaker
also testified that the children had sustained injuries while they were left
under the care of a teenager during placement in another foster home.  She noted these injuries during a supervised
visitation and described them as a cut over the right eye, bruising on the
face, and “divots” on the face.  CASA’s
investigation of the injuries led Whitaker to believe the injuries were
sustained “[w]hen they were riding their bikes. . . . through
trees.”  After the testimony was taken,
the court stated that “the offer of proof is concluded.”  
            C.        Analysis 
            The Neyenses
argue that while “the trial court was correct in ruling that what happened in
foster care had nothing to do with the grounds for termination and whether the
parents responded appropriately,” the “conditions and treatment of the children
in the foster homes was critical to the consideration of the determining
factors regarding whether termination was in the children’s best interest.”[1]  The Neyenses
maintain that the trial court erred in excluding the testimony of Brown and
Whitaker concerning the alleged sexual abuse incident, the injuries to the
children, and the matter of medication while in foster care.  
1.         The Neyenses failed to secure an
adverse ruling with respect to Whitaker’s testimony
 
            “To preserve error concerning the
exclusion of evidence, the complaining party must actually offer the evidence
and secure an adverse ruling from the court.” 
Lister v. Walters, 247 S.W.3d
381, 383 n.1 (Tex. App.—Texarkana 2008, no pet.) (quoting Perez v. Lopez, 74 S.W.3d 60, 66 (Tex. App.—El Paso 2002, no
pet.)).  
            While an offer of proof was made as
to Whitaker’s testimony, the record demonstrates that it was made after the
witness was passed by the counsel and outside the presence of the jury on voir dire. 
However, after having made a record of the testimony, counsel made no
attempt to proffer this testimony, either during cross-examination or after the
offer of proof had concluded.  In other
words, although the record of the intended testimony was made, no request was
made of the court to allow the introduction of that testimony.  The trial court did not rule on the admissibility
of the testimony because it had not been offered.  Because the trial court did not rule “on the
request, objection, or motion, either expressly or implicitly,” or did not refuse
“to rule on the request, objection, or motion,” the Neyenses
failed to preserve the issue of alleged error in failure to admit Whitaker’s
testimony.  Tex. R. App. P. 33.1.  
            This point of error is overruled. 
                        2.         Trial court did not err in excluding
Brown’s testimony 
            The Neyenses
argue that “the jury was prevented from adequately considering the current and
future emotional and physical danger of the children, the parenting abilities
of the persons seeking custody and the stability of the home of proposed
placement” because the trial court did not admit Brown’s testimony of the
alleged sexual abuse and concern about medications administered to the
children.  
            Mrs. Neyens
was able to testify that investigations had been conducted of two foster homes
where the children were placed.  As a
result of these investigations, she told the jury that although the allegations
of sexual assault had never been substantiated, the children were, nonetheless,
removed from the foster home where the incident was reported and were placed in
a different foster home.  The newer
foster parents were interested in adopting two of the three children.    
            Counsel for the Neyenses
advanced the theory that Brown’s testimony would be relevant to the finding
regarding the best interests of the children. 
The trial court could have determined that allegations of sexual abuse
occurring at a previous foster home were not relevant to the best interest
finding since the children had been removed from that home.  Specifically, the court could have ruled that
the allegation of sexual abuse in the previous placement would not affect the “current
and future emotional and physical danger of the children,” “the parenting
abilities of the persons seeking custody,” or the “stability of the home of
proposed placement.”  Additionally, the
trial court could have further found the testimony that the parents were
concerned about the children’s medications being administered to the children
by a psychiatrist inconsequential to the best interest inquiry.  
            It might be said that the incidences
involving the children and the complaints of the parents regarding those
incidences reflect adversely on the past choices made by CPS concerning the
placement of the children, choices which might be somewhat relevant as
predictors of likely possible bad future choices, which might adversely affect
the children. If one adopts that viewpoint, it could be said that the evidence
which was sought was not entirely irrelevant. 
However, the Texas Rules of Evidence also prescribe that even relevant
evidence may be excluded “if its probative value is substantially outweighed by
the danger of unfair prejudice, confusion of the issues, or misleading the
jury.”  Tex.
R. Evid. 403. 
In these circumstances, it appears that CPS acted promptly and in what
appears to be an abundance of caution, to what seems to have been
unsubstantiated problems, removing the children from the foster home in which
they were located.  The trial court could
easily have believed that the trial concerning the welfare of the children
could deteriorate into a trial on the practices of CPS in its selection of
foster homes, thwarting the primary object of the trial itself.  Accordingly, the trial court could have believed
that the danger of confusion of the issues outweighed the probative value of
the tales concerning the post-removal experiences of the children.  The trial court was within its discretion in
excluding this testimony. 
            For the reasons stated above, we
find no abuse of discretion in the trial court’s ruling.  
            Moreover, there is nothing to
establish (even if one assumes the trial court erred in its ruling), that the
assumed error was “reasonably calculated to cause and probably did cause
rendition of an improper judgment.”  R.A.L., 291 S.W.3d at 446.[2]  The Neyenses make
no  challenge to the sufficiency of the
evidence supporting the best interest finding made by the jury.[3]  
            We overrule this point of
error.  
II.        Trial
Court Did Not Abuse Its Discretion in Denying Motion for Mistrial 
            Prior to trial, the court granted a
motion in limine prohibiting any “reference to
alleged criminal activity on the part of ROY NEYENS that occurred before the
birth of the children or occurred outside the presence of the children or
outside their sphere of awareness.” 
During cross-examination of therapist Carolyn Jewett, the motion in limine was violated, producing the following transcript:
            Q.        And
that’s – and would – would you elaborate? 
Is there anymore basically to tell the jury of how you got to your
evaluation that some of them—some of the questions were answered dishonestly?
 
            A.        Well
a lot of it is also subjective.  A lot of
it is talking to them.  Talking about
their history.  You know, she was married
that first time at age 13.  He’s 20 years
older than she is.  There was a lot of
dysfunction all throughout their family life. 
I believe this is the fourth time CPS has intervened in their – into
their life, with their children.  There
was a lot of dysfunction as far as fighting. 
Even though there’s no domestic violence legally there, due to his
criminal history there –
 
                        MR.
PARIS:  Objection, Your Honor. 
 
                        THE
COURT:  Sustain. 
 
            A.        Charges
that he had a criminal history –
 
                        MR.
PARIS:  Objection, Your Honor.  May we approach?
 
                        MS.
ARMSTRONG:  Your Honor –
 
                        MR.
PARIS:  I’m this close to moving for a
mistrial. 
 
                        MS.
ARMSTRONG:  Okay.  Your Honor, this is for purposes of medical
diagnosis and treatment.  She has to do
an analysis based on the person’s entire life. 
She’s informed by them of their –their criminal history.  Ms. Jewett is speaking as a doctor. . . .
 
                        MR.
PARIS:  The jury can hear every word
counsel is saying, Judge. 
 
                        MS.
ARMSTRONG:  Okay.  I’m sorry. 
I’m not trying – I’m not trying to talk loud. 
 
                        THE
COURT:  We’ll take a break. 
 
            As the trial court directed, the
jury was removed and the Neyenses “move[d] for a
mistrial for a direct violation of this court’s motion in limine.”  Counsel stated,
            It’s obvious that this witness was
not prepped in any way . . . . That it’s obvious she wasn’t instructed by
counsel, as counsel was instructed by this court to do, not to mention certain
things.  And she mentioned it.  I objected and she mentions it again the very
next thing.  We move for mistrial. 
            There’s no way that prejudice can be
removed from this – this jury.  They
heard it and then they – they could hear, because I backed up to see how loud
it was.  They could hear Ms. Armstrong’s
stage whisper to the court, in order to try to make a record.  I understand, but none the less, in the
presence of the jury.  Those things were
heard.  The explanations by Ms. Armstrong
were heard and the damage has been done.
 
            “[A] motion in limine
is a preliminary ruling by a trial court.” 
Onstad v. Wright, 54 S.W.3d 799, 805 (Tex.
App.—Texarkana 2001, pet. denied).  It is
a “procedural device that permits a party to identify, before trial, certain
evidentiary rulings that the court may be asked to make so as to prevent the
asking of prejudicial questions and the making of prejudicial statements in the
presence of the jury.”  Id. (citing Hartford Accident & Indem. Co. v. McCardell, 369 S.W.2d 331, 335 (Tex. 1963), abrogated on other grounds by Bay Area
Healthcare Group, Ltd. v. McShane, 239 S.W.3d 231
(Tex. 2007); Fort Worth Hotel Ltd. P’ship v. Enserch Corp., 977 S.W.2d 746, 757 (Tex.
App.—Fort Worth 1998, no pet.)).  The
purpose of a motion in limine is thus to prevent the
other party from asking prejudicial questions and introducing prejudicial
evidence in front of the jury without first asking the court’s permission.  Id. (citing
Weidner v. Sanchez, 14 S.W.3d 353,
363 (Tex. App.—Houston [14th Dist.] 2000, no pet.)).  When a trial court issues an order granting
such a motion in limine, the opposing party has a
duty to comply with that order and to instruct the witnesses to do the same,
and noncompliance with that order may lead to contempt or other sanctions the
trial court deems appropriate.  Id. 
            We review a violation of an order
granting a motion in limine “to see if [the violation
is] curable by an instruction to the jury to disregard them.”  Id. (citing
Dove v. Dir., State Employees Workers’ Comp. Div., 857 S.W.2d 577 (Tex.
App.—Houston [1st Dist.] 1993, writ denied)). 
“Violations of an order on a motion in limine
are incurable if instructions to the jury would not eliminate the danger of
prejudice.”  Id. (citing Dennis v. Hulse, 362 S.W.2d 308, 309 (Tex. 1962); Kendrix v. S. Pac. Transp. Co., 907 S.W.2d 111,
114 (Tex. App.—Beaumont 1995, writ denied); Dove,
857 S.W.2d at 580).  The violation of a
motion in limine may entitle a party to relief, but
any remedies available with regard to such a violation lie with the trial
court.  Id. at 806 (citing Brazzell v. State,
481 S.W.2d 130, 131 (Tex. Crim. App. 1972)). 
If its order has been violated, the trial court may apply the sanctions
of contempt or take other appropriate action. 
Id. (citing Lewis v. State, 627 S.W.2d 492, 494
(Tex. App.—Houston [1st Dist.] 1981, no pet.)).[4]
            The Neyenses
argue that the trial court should have granted a mistrial in order to eliminate
the danger of prejudice, urging that the failure to do so was error.  The trial court has discretion to grant or
deny a motion for mistrial.  Id. at 808 (citing Schlafly v. Schlafly, 33 S.W.3d 863, 868 (Tex.
App.—Houston [14th Dist.] 2000, pet. denied)). 
In reviewing the trial court’s decision, an appellate court does not
substitute its judgment for that of the trial court, but decides whether the
trial court’s decision constitutes an abuse of discretion.  Id.
(citing Beaumont Bank, N.A. v. Buller,
806 S.W.2d 223, 226 (Tex. 1991)).
            The trial court denied the Neyenses’ motion for mistrial, stating,
There
has been no specifics of any sort mentioned in which criminal past could
include a traffic ticket.  But I will
instruct the witness not to testify further about the criminal record . . . .
as the criminal record that the court’s aware of is remote in time and
inconsistent with any of the allegations that are the basis of this lawsuit.[5]
 
            The Neyenses
failed to move to strike Jewett’s testimony regarding Mr. Neyens’
criminal record, and failed to ask the court to instruct the jury to disregard
Jewett’s statements about criminal charges. 
By denying the motion for mistrial, the trial court could have concluded
the alleged violations insufficiently consequential to warrant the severe
sanction of a mistrial.  The court could
also have determined that any prejudice resulting from mention of criminal
charges could have been cured by an instruction to the jury to disregard had
such a request been made.  In either
event, we find the trial court acted within its discretion.  See Opuiyo v. Houston Auto M. Imports, LTD, No.
14-09-00894-CV, 2011 WL 61853, at **3–4 (Tex. App.—Houston [14th Dist.] Jan. 6,
2011, no pet.) (mem. op.).  We overrule the Neyenses’ issue regarding asserted violations of the order
granting the motion in limine.
III.       Conclusion

            We affirm the judgment of the trial court. 
 
 
 
                                                                        Bailey
C. Moseley
                                                                        Justice
 
Date
Submitted:          December 5, 2011
Date
Decided:             December 9, 2011
 




[1]In
deciding whether termination would be in the best interest of the child, a
trial court considers this nonexclusive  list
of factors:  (1) the desires of the
child; (2) the emotional and physical needs of the child now and in the future;
(3) the emotional and physical danger to the child now and in the future;
(4) the parental abilities of the individuals seeking custody; (5) the programs
available to assist these individuals to promote the best interest of the
child; (6) the plans for the child by these individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement; (8) the
acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one; and (9) any excuse for the acts
or omissions of the parent.  Holley v. Adams, 544 S.W.2d 367, 371–72
(Tex. 1976).  The Neyenses
do not independently challenge the sufficiency of the evidence supporting the
best interest determination.  Rather,
they contend that the evidence of treatment in the foster home was relevant to
factors three, four, and seven, which are considered when making the best
interest finding, and therefore, the evidence should have been admitted.  


[2]The
Holley factors are not exhaustive, no
single consideration is controlling, and a fact-finder is not required to consider
each factor.  Holley, 544 S.W.2d 367.
 


[3]Rather,
the Neyenses contend that “[e]vidence
regarding the best interest of the children in this case was critical and
disputed.”  The Neyenses’
brief cites to a portion of the record supporting the best interest
finding.  The dispute is left to the fact-finder
to resolve. 


[4]The
Neyenses did not challenge the admissibility of this
testimony, and we do not address admissibility. 



[5]After
the break, the trial court neglected to admonish the witness.  


