






In the Interest of J.B., a Child















IN THE
TENTH COURT OF APPEALS
 

No. 10-01-044-CV

IN THE INTEREST OF J.B., A CHILD

 

From the 19th District Court
McLennan County, Texas
Trial Court # 1999-1869-1
                                                                                                                
                                                                                                         
DISSENTING OPINION
                                                                                                                

     The majority has decided three issues of significance to the parties in this case and granted
relief beyond that requested.  Of the three issues decided, only two have general applicability to
the jurisprudence of this State.  Those two issues are:  1) the interpretation of Rule 245 of the
Texas Rules of Civil Procedure; and 2) the admission of expert testimony under Rule 702 of the
Texas Rules of Evidence.  The issue regarding Rule 245 is the dispositive issue upon which the
case is reversed and will probably affect only a small number of cases in the future.
      But the issue regarding the admission of expert testimony is far more important to the
jurisprudence of the State because it will affect virtually all cases involving the admission of expert
testimony, particularly those cases that involve expert testimony based on experience and training
rather than testimony based on applying the scientific method.  For this reason I will not address
the issues in the same order they are addressed in the majority opinion, rather I will address them
in the order of their importance.
      The third issue of significance to the parties relates to the admission of evidence peculiar to
this case so I will only address it briefly.  I will then comment upon two other issues:  the relief
granted by the majority beyond that requested by the parties, and the majority’s failure to apply
its own dispositive precedent regarding broad form submission of special issues in termination-of-parent-child-relationship cases, rather than avoiding a controversial interpretation of Rule 245.
EXPERT TESTIMONY
      The majority has chosen to address the admission of expert testimony from Dr. Shinder
because the issue will likely occur on remand.  Not only will this issue likely occur on remand in
this case, the issue is pertinent to every case in which expert testimony is admitted.  Unlike most
evidentiary issues, the admission of expert testimony has been the subject of much debate in
judicial opinions and legal publications.  Considering that it is an evidentiary issue, the admission
of expert testimony has been the subject of an inordinate number of United States Supreme Court,
Texas Supreme Court, and Texas Court of Criminal Appeals opinions in recent years.  Hundreds
of lower courts have also addressed the issue.
      When this mass volume of cases is reviewed, three generally accepted concepts emerge. 
First, Rule 702 regarding the admission of expert testimony applies to all scientific evidence,
technical evidence, or evidence regarding areas of specialized knowledge sought to be introduced
before the fact finder.  Second, because the issue is related to the admission of evidence, the trial
court is given broad discretion in determining admission of expert testimony.  Third, the trial
court, upon a proper objection by the opponent, must determine, as a preliminary matter, the
reliability of the expert testimony tendered for admission.  
      But the courts have not been able to reach a consensus on three concepts at issue in this case:
      (1) How is the tendered expert testimony to be tested for reliability?
            (a) Is the test, and thus the proof, different for “hard” sciences versus “soft”
sciences?
            (b) Is the type or method of proof required different for “novel” versus
established fields or applications?;
 
(2) How much discretion does the trial court have to select the method to be used for
testing the reliability of the tendered expert testimony?;  and
 
(3) What is the appellate court’s standard of review for the trial court’s selection of a
method to test the reliability of the tendered expert testimony?

HOW TO TEST RELIABILITY?
      Many of the cases regarding admission of expert testimony have involved what test the trial
court should use to determine the admissibility of expert testimony.  It is the majority’s selection
of the test for admissibility with which I have my principle disagreement.  The natural place to
start regarding the test for admissibility of expert testimony is with the language of the Rule.  Rule
702 provides:
If scientific, technical, or other specialized knowledge will assist the trier of fact to
understand the evidence or to determine a fact in issue, a witness qualified as an expert
by knowledge, skill, experience, training, or education may testify thereto in the form
of an opinion or otherwise.

Tex. R. Evid. 702.
      The Texas Supreme Court, in Helena, characterized the test of admissibility of expert
testimony as a two part test.  Helena Chemical Co. v. Wilkins, 47 S.W.3d 486, 499 (Tex. 2001). 
The Court stated:  “A two-part test governs whether expert testimony is admissible; (1) the expert
must be qualified; and (2) the testimony must be relevant and be based on a reliable
foundation...[t]he trial court makes the initial determination about whether the expert and the
proffered testimony meet these requirements.”  Id. (Internal citations omitted).
      Thus, Helena breaks the rule into two discreet parts:  (1) qualification of the expert; and (2)
the relevance and reliability of the evidence.  The second part of the test can be divided into at
least two parts:   (1) the reliability of the evidence; and (2) the relevance of the evidence.
      Earlier, in Robinson, the Court characterized the rule as containing three requirements.  The
Court stated:  “Rule 702 contains three requirements for the admission of expert testimony: (1)
the witness must be qualified; and (2) the proposed testimony must be ‘scientific ... knowledge’;
and (3) the testimony must ‘assist the trier of fact to understand the evidence or to determine a fact
in issue.’”  E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995). 
The Court effectively divided the third requirement of the Rule into two parts by stating: “In order
to constitute scientific knowledge which will assist the trier of fact, the proposed testimony must
be relevant and reliable.”  Id.  Thus, the Court made the same distinction in Robinson regarding
the “third” requirement of the Rule which it later expressly made the “second” part of the test
described in Helena; that the expert testimony must be both reliable and relevant.
      Obviously the Supreme Court in Helena did not eliminate from the Rule the requirement
expressed in Robinson that the testimony must be “scientific ... knowledge” to be considered for
admission under Rule 702.  Thus, a full description of the hurdles that a proponent must overcome
to get expert evidence before the fact finder could be summarized as follows:
1.The witness must be qualified as an expert to testify about the subject by knowledge,
skill, experience, training, or education;
 
      2.   The testimony must relate to scientific, technical, or other specialized knowledge;
      3.   The testimony must be reliable; and
 
      4.   The testimony must be relevant, in essence it must assist the trier of fact to understand
the evidence or to determine a fact in issue.

      I note that relevance in this context, under Rule 702, may actually be broader than under Rule
401 because it is not limited to evidence “...having any 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.  Rule 702 also allows the admission of
evidence that does nothing more than assist the fact finder to understand other evidence.  At the
very least, we know that “relevance” under Rule 702 incorporates traditional relevancy analysis
under Rules 401 and 402.  E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549, 556
(Tex. 1995); see Tex. R. Evid. 401, 402, 702.
      But it is the third element, the reliability of the tendered expert testimony, that has generated
the real debate and is the focus of this dissenting opinion.  In particular, how is the trial court,
standing at the gate between the world outside the courtroom and the record of evidence upon
which the fact finder can properly base its decision, to determine the reliability of expert
testimony?
      In Robinson, the Texas Supreme Court gave us a non-exclusive list of six factors by which
a trial court is to review the reliability of scientific evidence.  Robinson, 923 S.W.2d 549 (Tex.
1995).  Later, in Nenno, the Texas Court of Criminal Appeals gave us a framework by which to
test the reliability of “fields of study aside from the hard sciences, such as social sciences or fields
that are based primarily upon experience and training as opposed to the scientific method.”  Nenno
v. State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998).  Then, in Gammill, the Texas Supreme
Court noted that the considerations listed in Daubert and Robinson for assessing the reliability of
scientific evidence cannot always be used with other types of expert testimony.  Gammill v. Jack
Williams Chevrolet, Inc., 972 S.W.2d 713, 722-28 (Tex. 1998); see Daubert v. Merrell Dow
Pharmaceuticals, Inc., 509 U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469 (1993); E.I. du Pont
de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995).
      In its determination of what test to use, the majority correctly observes that “the Supreme
Court noted a potential difference between expert testimony based on methodology and that based
on experience.”  Majority opinion at page 17, citing Gammill, 972 S.W.2d at 722-27.  And
Gammill teaches us that when the Robinson factors do not fit the particular expert testimony, the
trial court must still determine the reliability of these other types of expert testimony, those not
based on scientific methodology, and thus, must also determine how to assess the reliability
thereof.  Gammill, 972 S.W.2d at 726.
CAN WE LOOK BEYOND ROBINSON FOR AN APPROPRIATE TEST?
      The majority, in contrast to the teaching in Gammill, decides to apply only the Robinson
factors for evaluating the reliability of the evidence instead of applying a more appropriate analysis
tailored to this particular expert testimony.  Even though the Texas Supreme Court has not
expressly determined what factors may be considered when evaluating the admissibility of
testimony from a social scientist, whose testimony is sometimes referred to as soft science
evidence, it has expressly stated that experience alone may provide a sufficient basis for an
expert’s testimony in some cases.  Gammill v. Jack Williams Chevrolet, Inc., 972 S.W.2d 713,
726 (Tex. 1998).  And it has also expressly stated that the factors used in Robinson for testing the
reliability of scientific evidence cannot always be used to test the reliability of other kinds of
expert testimony.  Id.  In essence, Robinson may not be applicable to “other” expert testimony,
that which was not derived through the scientific method.  Additionally, the Court of Criminal
Appeals, in Nenno, expressly identified some factors for the trial court to use when determining
the reliability of social science evidence.  Nenno v. State, 970 S.W.2d 549, 561 (Tex. Crim. App.
1998).  So what is the trial court to do when faced with the need to test the reliability of “other”
expert testimony in a civil case?
      This leads us to the question:  Could the trial court properly use factors other than those set
out in Robinson, for example those from Nenno, in this civil proceeding?  Id; see E.I. du Pont de
Nemours and Co. v. Robinson, 923 S.W.2d 549, 556 (Tex. 1995).  Without explanation, the
majority limits its analysis to the independent application of the Robinson factors.  I believe this
independent application is wrong for two reasons.  First, I believe it is error to consider only the
Robinson factors in evaluating this particular expert testimony.  Not only may the trial court use
the factors from Nenno, in essence factors other than those applied in Robinson, but the trial court
must tailor the factors it uses in a particular case to meet the ultimate objective:  to determine the
reliability of the particular expert testimony being considered for admission before the fact finder. 
Second, I believe the majority has erroneously conducted a de novo application of the Robinson
factors to the evidence.  After making its own evaluation of the factors and having determined that
the evidence does not meet the Robinson test, rather than reviewing the trial court’s evaluation,
the majority improperly concludes that the trial court abused its discretion in admitting the
testimony.
HARMONIZING CIVIL AND CRIMINAL RULE 702 ANALYSIS
      As indicated above, the majority errs in considering only the Robinson factors.  In Robinson,
the Texas Supreme Court based its holding construing Rule 702 of the Civil Rules of Evidence on
the reasoning of Kelly, a Court of Criminal Appeals case that construed Rule 702 of the Criminal
Rules of Evidence.  E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995);
Kelly v. State, 824 S.W.2d 568 (Tex. Crim. App. 1992); Tex. R. Civ. Evid. 702; Tex. R. Crim.
Evid. 702; see Musgrove v. State, 82 S.W.3d 34, 38 (Tex. App.—San Antonio 2002, no pet.)
(effective March 1, 1998, the Texas Rules of Evidence replaced the former Texas Rules of Civil
Evidence and the former Texas Rules of Criminal Evidence).  By adopting the analysis of Kelly
in Robinson, the Texas Supreme Court provides precedent that analytical reasoning used in
criminal cases can and should be used in civil cases when appropriate.  Because the Civil Rules
of Evidence and the Criminal Rules of Evidence have been combined into the Texas Rules of
Evidence since the decisions of Kelly and Robinson, even greater weight should be given to the
argument that this is an appropriate case in which the interpretation of Rule 702 should be
harmonized.  Tex. R. Evid. 702; see Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
      One case which specifically discusses the general goal of harmonizing the interpretation of
civil and criminal rules is Clewis, in which the Court of Criminal Appeals purported to harmonize
the criminal and civil jurisprudence of Texas regarding appellate review for factual sufficiency. 
Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996); Johnson v. State, 23 S.W.3d 1, 11
(Tex. Crim. App. 2000).  In Clewis, the Court stated: “[t]his holding harmonizes the criminal and
civil jurisprudence of this State with regard to appellate review of questions of factual
sufficiency.”  Clewis, 922 S.W.2d at 129.
      In several cases, a majority of this court used this same rationale, harmonization of the
interpretation of civil and criminal rules, to extend criminal procedural rules to civil termination
cases.  For example, we held in A.P. that review of unpreserved sufficiency-of-the-evidence
complaints about the two core issues in termination cases is appropriate.  In the Interest of A.P.,
42 S.W.3d 248, 256 (Tex. App.—Waco 2001, no pet.).  The majority later explained their
reasoning for this holding by stating in B.L.D. “we also recognize that when appropriate,
harmonization of civil and criminal jurisprudence is one of our goals.  Therefore, when
appropriate, we look to criminal law to determine similar or corresponding issues.”  In the Interest
of B.L.D., 56 S.W.3d 203, 211 (Tex. App.—Waco 2001, pet. granted).
      In J.F.C., the majority held that we will review, as we do in criminal cases, unpreserved
complaints about charge errors that pertain to the two core issues of termination cases.  In the
Interest of J.F.C., 57 S.W.3d 66 (Tex. App.—Waco 2001, pet. granted).  And in B.L.D., the
majority held that the statutory right to counsel means the effective assistance of counsel as it does
in criminal cases.  B.L.D., 56 S.W.3d at 212.
      Based on these holdings, I do not understand why the majority refuses to consider that the trial
court could have applied the Nenno factors when evaluating the reliability of social science
evidence in a civil termination case.  While I believe we have erred in making criminal procedural
rules apply to civil termination proceedings, In the Interest of J.F.C., 57 S.W.3d 66 (Tex.
App.—Waco 2001, pet. granted) (Gray, J., dissenting) and In the Interest of B.L.D., 56 S.W.3d
203, 211 (Tex. App.—Waco 2001, pet. granted) (Gray, J., dissenting), I generally agree civil and
criminal law should be harmonized when appropriate.  In particular, there needs to be consistency
in the interpretation of this evidentiary rule which now applies in both civil and criminal trials
regarding the admissibility of evidence based on the reliability of expert testimony as determined
by the trial court acting in its gatekeeper function.
      Based on the Texas Supreme Court’s application of Kelly in deciding Robinson, and additional
cases decided by this court and the Court of Criminal Appeals, I think we should at least use the
Nenno factors as a persuasive framework for analysis of social science evidence until the Texas
Supreme Court gives us other guidance.  Nenno v. State, 970 S.W.2d 549 (Tex. Crim. App.
1998); E.I. du Pont de Nemours and Co. v. Robinson, 923 S.W.2d 549 (Tex. 1995); Kelly v.
State, 824 S.W.2d 568 (Tex. Crim. App. 1992).  Thus, at a minimum, I would evaluate the
reliability of the testimony of Dr. Shinder, a psychologist, according to the analysis the Court of
Criminal Appeals applied in Nenno.  Nenno, 970 S.W.2d at 561.  I note that the appellant cites
Nenno, thus acknowledging its applicability to this case.
THE NENNO ANALYSIS
      To apply the Nenno analysis to this case, we must first understand how the Nenno analysis
is applied in general.  In Nenno, the Court of Criminal Appeals explained that the methods of
validating hard science, “such as assessing the potential rate of error or subjecting a theory to peer
review, may often be inappropriate for testing the reliability of fields of expertise outside the hard
sciences.”  Id.  Without eliminating the reliability requirement of Kelly, the Court then went on
to provide the appropriate questions when addressing fields of study such as the social sciences,
or fields that are based on experience and training as opposed to the scientific method.  Nenno v.
State, 970 S.W.2d 549, 561 (Tex. Crim. App. 1998).  These questions are: (1) whether the field
of expertise is a legitimate one; (2) whether the subject matter of the expert’s testimony is within
the scope of that field; and (3) whether the expert’s testimony properly relies upon and/or utilizes
the principles involved in the field.  Id.
      This court used the analysis for reliability of social science evidence from Nenno to affirm the
trial court’s admission of testimony by a “registered play therapist” in Campos.  Campos v. State,
977 S.W.2d 458, 463-4 (Tex. App.—Waco 1998, no pet.).  Campos involved a determination of
whether the methodology used by a therapist was a proper basis for expert testimony in a trial on
the charge of aggravated sexual assault.  We reviewed the methodology used by the therapist,
regarding “play therapy,” and stated:  “her office is filled with specific toys and activities which
are chosen specifically to encourage children to express their feelings.”  Id. at 464.  In developing
her expert opinion, the therapist applied her observations of the child to what she had learned
about the behavior of abused children through her studies.  Id. at 463-4.  This court found that the
trial “court acted within its discretion in finding this testimony relevant, reliable, and helpful to
the jury.”  Id. at 464.
Application of Nenno
      We now consider the actual application of the Nenno analysis to Dr. Shinder’s testimony in
this case.  When Dr. Shinder’s testimony is reviewed under this analysis, it is clear the evidence
was reliable.
Legitimate Field of Inquiry?
      From Dr. Shinder’s testimony it is clear that the two fields of expertise under consideration
are psychology and public health.  He testified that he earned a Ph.D. in psychology in 1973 and
his masters degree in public health, focusing on issues of abuse and neglect, in 1979.  He has
practiced in these fields, focusing on issues of abuse and neglect, since that time.
      It is not clear that Spencer’s objection challenged whether these were legitimate fields of
expertise.  I believe it is foolish to even consider that psychology and public health are not
legitimate fields of expertise.  Thus, the trial court should be able to make this determination
without evidence, in essence take judicial notice that these are legitimate fields of expertise.  See
Hartman v. State, 946 S.W.2d 60, 63 (Tex. Crim. App. 1997) (Keller, J., concurring and
dissenting).
      But if we are required to examine the record there is adequate evidence to support the
determination that these are legitimate fields for expert testimony.  The State did not attempt to
present any testimony directly related to a determination of whether these are “legitimate” fields
of expertise.  The evidence does support the fact, however, that there are universities from which
Dr. Shinder has received advanced degrees in these particular fields.  This is circumstantial
evidence upon which the trial court could properly conclude that psychology and public health are
legitimate fields of specialized knowledge.  Accordingly, the trial court would not have abused its
discretion if it determined the answer to the first question in the Nenno analysis, whether the field
of expertise is a legitimate one, should be answered in the affirmative.
Scope of Testimony within the Field?
      Dr. Shinder testified that his assessment of parental abilities was based on an analysis of the
parent’s objective knowledge in the area of parenting, and an evaluation of whether the parent has
acted appropriately on the basis of that knowledge in regard to their children.  Dr. Shinder used
a questionnaire he developed to assist him in evaluating the parent’s objective knowledge, which
in turn, assisted him in developing his expert opinion regarding the best interest of J.B.  The
questions covered a wide range of matters such as food storage, which indicates a parent’s ability
to evaluate how foods should be safely handled, and how many hours of sleep children generally
need each night.  These are examples of the questions Dr. Shinder referred to as the objective part
of his test.
      Dr. Shinder then utilized the answers to these types of questions in conjunction with other
information obtained from his review of Spencer’s psychological counseling file and his personal
interviews of Spencer on a broad range of topics to develop his opinion regarding the best interest
of J.B.  The other topics on which Dr. Shinder questioned Spencer included how Spencer coped
with emergencies, how she reacted to perceived medical needs of the children, and what Spencer
anticipated for the future of her children.
      As a psychologist with a masters degree in public health and years of experience focusing on
abuse and neglect, the analysis performed by Dr. Shinder is within the scope of the fields of
expertise under review.  Thus, the trial court would not have abused its discretion if it determined
the answer to the second question in the Nenno analysis, whether the subject matter of the expert’s
testimony is within the scope of that field, should also be answered in the affirmative.
Expertise Properly Applied?
      Dr. Shinder used established techniques of psychology in interviewing and data gathering, in
addition to his training and experience, to assist him in forming and expressing an opinion
concerning Spencer’s parenting abilities, and in particular, the best interest of J.B.  Dr. Shinder
conducted a psychological evaluation of Spencer in 1989 when Spencer was still a juvenile, long
before this case was filed.  He completed the parenting assessment of Spencer less than a year
before trial of this case began.  Spencer went to one parenting class with Dr. Shinder before she
quit attending.  Throughout the years, from the time she was a juvenile through her adulthood and
parenthood, Spencer has participated in counseling at Dr. Shinder’s office.  Dr. Shinder properly
relied upon and utilized principles involved in the fields of psychology and public health in
forming his opinion of Spencer’s parenting abilities and, more particularly as applicable to this
case, in determining his opinion regarding the best interest of J.B.  Therefore, the trial court
would not have abused its discretion if it determined the answer to the final question in the Nenno
analysis, whether the expert’s testimony properly relies upon and/or utilizes the principles
involved in the field, should also be answered in the affirmative.
Conclusion Using the Nenno Analysis
      A review of the trial court’s decision using this analysis for social science evidence (soft
science), instead of scientific evidence (hard science), shows the trial court did not abuse its
discretion when it determined Dr. Shinder’s testimony was admissible because it was reliable and
thus helpful to the jury in making its determination whether to terminate the parent-child
relationship between Spencer and J.B.  There is no reasonable distinction between the techniques
used by Dr. Shinder to develop his opinion concerning the parent-child relationship between
Spencer and J.B. and the techniques used by the play therapist this court approved in Campos to
develop her opinion concerning whether a child had been sexually abused.  Campos v. State, 977
S.W.2d 458 (Tex. App.—Waco 1998, no pet.).
CRITICISM OF THE NENNO ANALYSIS
      The distinction that Nenno makes for differentiating between the test for admitting expert
testimony regarding hard and soft sciences has not been without its critics.  The United States
Supreme Court, interpreting the federal counterpart to Rule 702, has determined that the
distinction between hard and soft science is too difficult to apply in practice.  Kumho Tire Co.,
Ltd. v. Carmichael, 526 U.S. 137, 119 S. Ct. 1167, 143 L. Ed. 2d 238, (1993).  As the Court
explained: “It would prove difficult, if not impossible, for judges to administer evidentiary rules
under which a gatekeeping obligation depended upon a distinction between ‘scientific’ knowledge
and ‘technical’ or ‘other specialized’ knowledge.  There is no clear line that divides the one from
the others.”  Id. at 148.  The Court determined that the test for reliability cannot be stated with
certainty and the trial court must therefore be given wide flexibility in determining what test is
appropriate for the particular testimony being offered.  The Court noted that the trial court has
wide discretion to decide what test is appropriate when the opponent challenges the admissibility
of expert testimony.  As the Court stated:
The conclusion, in our view, is that we can neither rule out, nor rule in, for all cases
and for all time the applicability of the factors mentioned in Daubert, nor can we now do
so for subsets of cases categorized by category of expert or by kind of evidence.  Too
much depends upon the particular circumstances of the particular case at issue....We do
not believe that Rule 702 creates a schematism that segregates expertise by type while
mapping certain kinds of questions to certain kinds of experts.  Life and the legal cases
that it generates are too complex to warrant so definitive a match.

Id. at 150-51.
      The First Court of Appeals has expressly applied Nenno to a civil case.  Coastal Tankships,
U.S.A., Inc., v. Anderson, No. 01-99-01345-CV, 2002 Tex. App. LEXIS 4091, (Houston [1st
Dist.] May 31, 2002, no pet. h.).  The problem with its application, as noted by Justice Brister
in his concurring opinion, is that the facts were a perfect fit for the application of the
Robinson/Havner analysis to scientific evidence of causation.  There was no legitimate reason to
explain the majority’s departure from a straight forward application of Robinson.  Neither Kumho
nor Nenno can be used as an excuse to abandon established techniques which allow scientific
evidence to be tested for reliability in a consistent manner.  But, as Gammill teaches us, the trial
court must determine the reliability of all expert testimony, and if the Robinson test does not fit
the evidence, select another means to test it.  This does not mean the trial court can keep selecting
methods until a method that necessarily results in admission, or exclusion, is found.  The nature
of the evidence, rather than the result, should determine the appropriate test.
      The majority in this case has refused to apply anything other than the Robinson factors.  On
the other extreme, a majority of the First Court of Appeals has abandoned Robinson even for
scientific evidence of causation.  I believe the appropriate answer is somewhere between the
extremes represented by these two cases.
      I would go beyond the Court of Criminal Appeals’ analysis in Nenno which was applied only
to the “soft sciences” and join the United States Supreme Court in its analysis that there is no
litany of questions that can be asked of every expert to determine if the testimony tendered is
reliable.  The classification of “hard” versus “soft” sciences may facilitate some differentiation,
but in the final analysis I believe that distinction is just another problem that the trial courts and
litigants will have trouble applying in practice.  With only minor modifications, the Nenno analysis
is actually comprehensive enough that it could provide the framework for considering the
admissibility of all expert testimony, not just “soft science.”  While the factors in Robinson, which
were the only factors considered by the majority in this case, should normally be applied to
scientific evidence, see Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 158-59, 119 S. Ct.
1167, 1179, 143 L. Ed. 2d 238, 256-57 (1993) (Scalia, J., concurring), these factors are ill suited
to a psychologist rendering an opinion about the best interest of a child.  Accordingly, I believe
the majority errs by limiting its analysis of the reliability of Dr. Shinder’s testimony to
consideration of the Robinson factors and no others.
TRIAL COURT DISCRETION AND OUR STANDARD OF REVIEW
      We now turn our attention to the second reason why the majority’s de novo determination of
the Robinson factors is error.  As I understand the majority’s analysis, they have determined that
Dr. Shinder’s opinion based upon his “parenting assessment” cannot be admitted into evidence
during the trial of this case on remand.  I believe the majority has erred in two separate, but
related, ways.  Foremost, is that the majority failed to determine and review the method that the
trial court used to determine the reliability of the testimony.  Further, by choosing to conduct its
own de novo application of only the Robinson factors, and determining the evidence did not meet
them, the majority did not review the trial court’s method of determining the reliability of the
testimony under the proper standard of review:  abuse of discretion.
      In essence, the majority failed to review the trial court’s method of determining reliability
under an abuse of discretion standard.  By this analysis, the majority has deprived the proponent
of the evidence the opportunity to establish the reliability of the tendered testimony on remand. 
This is wrong.
      For the reasons explained below, we should not prevent the State from establishing the
reliability of the testimony on remand with additional or other testimony which the trial court finds
to be a satisfactory method of determining the reliability of the expert testimony.
      In being critical of the majority’s de novo application I am not ignoring Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706 (Tex. 1997).  In Havner, the issue was whether
there was legally sufficient evidence of causation.  Thus, the Texas Supreme Court reviewed the
entire record to determine if there was any competent evidence of causation.  The Court held that
none of the evidence the trial court had admitted was reliable testimony of causation.  Therefore,
no evidence supported the jury’s determination that the drug sold by Merrell Dow was the cause
of the plaintiff’s injury.  The result was to reverse and render.
      Havner does not represent a de novo selection and application of a particular test for
admissibility of expert testimony as has been conducted by the majority in this case.  In this case,
I am questioning the propriety of the reviewing court deciding what test it will apply, applying the
test to the record, and deciding based upon that record, not only that the trial court abused its
discretion in admitting the evidence, but also determining that there is no additional evidence that
could establish reliability on remand, thus barring the introduction of the evidence upon retrial of
the case.  While the test for reliability is the same, the result of our analysis for admissibility
should be somewhat different when we address the issue under a legal sufficiency analysis, which
depends upon the procedural posture in which the issue is presented.  See Merrell Dow
Pharmaceuticals, Inc. v. Havner, 953 S.W.2d 706, 714 (Tex. 1997).
      When, as in this case, we are reviewing the issue of admissibility, as the Supreme Court noted
in Kumho, the trial court must be given the same kind of latitude in deciding how to test an
expert’s reliability, and to decide whether or when special briefing or other proceedings are
needed to investigate reliability, as it enjoys when it decides whether that expert’s relevant
testimony is reliable.  Otherwise, the trial judge would lack the discretionary authority needed both
to avoid unnecessary “reliability” proceedings in ordinary cases where the reliability of an expert’s
method is properly taken for granted, and to require appropriate proceedings in the less usual or
more complex cases where cause for questioning the expert’s reliability arises.  Indeed the Rules
seek to avoid “unjustifiable expense and delay” as part of their search for “truth” and the “just
determination” of proceedings.  Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152-53, 119
S. Ct. 1167, 143 L. Ed. 2d 238 (1993).
      This is one of the cases in which it may be entirely appropriate for the trial court to avoid a
lengthy reliability proceeding on at least some of the Nenno factors.  In this case, I do not think
that it is inappropriate for us to make the observation that the 19th District Court in McLennan
County handles virtually all the domestic relations, juvenile, and termination proceedings in this
County.  Further, this particular expert has appeared in the 19th District Court many times.  Must
the trial court conduct the same level of Daubert/Robinson/Kumho hearing in every case in which
this expert appears on these subjects?  Surely not.  See Hartman v. State, 946 S.W.2d 60, 63 (Tex.
Crim. App. 1997) (Keller, J., concurring and dissenting).  This is not to say that every litigant is
not entitled to challenge the particular testimony of Dr. Shinder, but to require the trial court to
go through the same extensive Daubert/Robinson/Kumho analysis every time that he takes the
stand to testify in one of these types of cases seems to scream of judicial inefficiency.  
      Let me make it clear that I am not advocating a return to the Frye test in which only novel
expert testimony is tested for reliability.  Frye v. United States, 54 App. D.C. 46, 293 F. 1013
(1923).  But there should be some sliding scale of the type and level of proof required based upon
the particular expertise involved.  What concerns me is the cost to the litigants and the
consumption of judicial resources, taxpayer resources, if in every case the underlying basis of
commonly recognized fields of expertise must be proven to establish the reliability of expert
testimony.  In every case involving the use of radar to determine speed must the reliability of the
science of radar be established?  Must every case involving identity through DNA or blood testing
separately establish the reliability of those fields of expertise?  The trial court must be accorded
some discretion to determine when a body of knowledge has become so well established that
judicial notice or a summary reliability hearing will be acceptable and extensive proof need not
be presented, in essence repeated, in every case in which that type evidence is tendered.
      It should be sufficient for Dr. Shinder to briefly testify in each case regarding his training and
experience, the manner in which this expertise was used to form his opinion in the case at hand,
and, assuming the trial court finds the evidence reliable, for the trial court to state upon the record
the court’s prior experience with Dr. Shinder and summarize the basis of its conclusion regarding
the reasons it finds the testimony to be reliable.  Of course, if the opponent insist upon an
expanded hearing to develop why the expert testimony is unreliable in a particular case, the
opponent would certainly be entitled to develop that record and expand upon why the prior
experience of the court with Dr. Shinder is not applicable to the testimony tendered in a particular
case.  This will provide us an adequate record to review the trial court’s determination of the
reliability of the tendered testimony without unnecessarily consuming the resources of the court
and parties.
      Additionally, because under Rule 702 the proponent of the evidence has the burden to prove
admissibility, we should require very specific objections to attack the basis of expert testimony. 
Tex. R. Evid. 702.  General objections that the tendered testimony does not meet the
Daubert/Robinson/702 test should be rejected.  Even the adequacy of an objection that the expert
testimony is not sufficiently reliable should be questioned because there are multiple elements and
ways to test reliability.  For example, if the trial court is using Nenno, is the party objecting that
the field is not legitimate, the testimony is outside the scope of the field, or that the testimony does
not properly rely upon or utilize the principles of the field?  The objection should be sufficient to
inform the trial court and the proponent of the evidence of the alleged defect in the foundation for
the admission of expert testimony.
      But regardless of what type or method of proof is required, and what objection is sufficient,
our review of the trial court’s selection of the method by which it will determine the reliability of
the tendered testimony should not be based on the determination of factors we would have used. 
Instead, we are required to review the method and factors used by the trial court for an abuse of
discretion.  Kumho Tire Co., Ltd. v. Carmichael, 526 U.S. 137, 152, 119 S. Ct. 1167, 143 L. Ed.
2d 238 (1993).  If the record is not clear what analysis, method and factors, the trial court used,
the trial court’s decision should only be overturned if there is no theory under which the evidence
could properly be admitted.  The majority erred when it selected and then applied only the
Robinson analysis.  To say it another way, the majority failed to review the trial court’s selection
of test-for-reliability under the abuse of discretion standard.
LABELING AN EXPERT’S PROCESS OF FORMING AN OPINION
      Dr. Shinder related the results of his observations and interviews performed in accordance
with his training in psychology and the mental health fields, and used this to explain why it is in
the best interest of J.B. to terminate the parent-child relationship with Spencer.  This is exactly
the type testimony that is helpful to the fact finder on several of the Holley factors used to evaluate
the best interest of the child.  Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). In his expert
testimony, Dr. Shinder used the term “parenting assessment” as a label for part of his analysis
leading up to his opinion regarding the best interest of J.B.  The use of the label, “parenting
assessment,” seems to have caused the majority undue concern.  An expert who chooses to label
their particular method or process of forming their expert opinion does not create a new field, or
even a novel application in an existing field.  We must review what the expert’s process was, not
the fact that it was labeled.
      One final thought on this issue.  It is noteworthy that Dr. Shinder’s parenting assessment,
based on his expertise in psychology and public health, is comparable to the hydrologist work in
Gragg, which we expressly approved.  Tarrant Regional Water District v. Gragg, 43 S.W.3d 609,
618 (Tex. App.—Waco 2001, pet. granted).  The hydrologists in Gragg drew from their expertise
and training and utilized information from their specialized field to create a hydrological model
used in litigation.  They called it “X-FOR.”  “The model they created used techniques and
performed studies in a manner accepted and customary in the [hydrology] industry.  The model
merely helped with their calculations. . .”  Tarrant Regional Water District v. Gragg, 43 S.W.3d
609, 617 (Tex. App.—Waco 2001, pet. granted).  Because the model was named and was used
in litigation did not make it unreliable.  Just as the hydrologists made a model using techniques
accepted by the industry and called it X-FOR, Dr. Shinder created an analysis using techniques
accepted by and customary in the fields of psychology and public health and called it a parenting
assessment.
CONCLUSION REGARDING THE ADMISSION OF EXPERT TESTIMONY
      Based on the foregoing, I would hold that the trial court did not err in performing its
gatekeeper function when it allowed Dr. Shinder to give his opinion regarding the best interest of
J.B.
RULE 245
      We now must turn our attention to the holding on which the majority reverses the trial court’s
judgment, a perceived violation of Rule 245.  The majority disregards the plain meaning of the
words used in Rule 245 and succumbs to the invitation of an able advocate who is allowed to
misdirect the focus to another part of the Rule.  We should not do violence to the plain wording
of this Rule.  The Rule provides for 45 days notice of only the first setting of a contested trial. 
Tex. R. Civ. P. 245.  For the second and subsequent settings, 45 days notice is not required. 
O’Connell v. O’Connell, 843 S.W.2d 212, 215 (Tex. App.—Texarkana 1992, no writ); see also
Osborn v. Osborn, 961 S.W.2d 408, 411 (Tex. App.—Houston [1st Dist.] 1997, writ denied).
      The misdirection relates to what is a first setting versus a second setting for trial and how
much notice is required for a second setting.  The Rule does not specify any particular length of
notice for a second trial setting, accordingly, notice which comports with due process, “any
reasonable notice,” is adequate for a second setting.  The relevant portion of the Rule is as
follows:
The Court may set contested cases on written request of any party, or on the court's
own motion, with reasonable notice of not less than forty-five days to the parties of a first
setting for trial, or by agreement of the parties; provided, however, that when a case
previously has been set for trial, the Court may reset said contested case to a later date
on any reasonable notice to the parties or by agreement of the parties. ...

Tex. R. Civ. P. 245.

      There has been virtually no discussion in published cases of what the 45 day notice
requirement means in the context of a second trial setting.  But there has been much discussion
with regard to its meaning for a first trial setting.  This is probably because of the wording of the
Rule.  As one court has expressed it; “by the clear language of rule 245, the forty-five day notice
applies only to the first setting of the trial.”  State Farm Fire and Cas. Co. v. Price, 845 S.W.2d
427, 431 (Tex. App.—Amarillo 1992, writ dism’d by agr.).
      Prior to the current version of the Rule, only 10 days notice of the first trial setting was
required.  The comments to the Rules and the cases acknowledge that the purpose of the
amendment was to harmonize the Rule regarding trial settings with Rule 216 which specifies the
proper procedure to obtain a jury trial.  See Higginbotham v. Collateral Protection, Inc., 859
S.W.2d 487, 492 (Tex. App.—Houston [1st Dist.] 1993, writ denied); Simpson v. Stem, 822
S.W.2d 323, 824 (Tex. App.—Waco 1992, orig. proceeding); Tex. R. Civ. P. 245, comment;
Tex. R. Civ. P. 216.  Rule 216 requires a jury demand be made, and the jury fee be paid, more
than 30 days before the setting on the non-jury docket.  Tex. R. Civ. P. 216.  Because the
previous version of Rule 245 required only 10 days notice of a trial setting, a trial could be set at
a time when it was too late to exercise the right to trial by a jury.  To prevent parties from losing
the right to trial by a jury, the Rule was amended to require 45 days notice of a first setting.  The
purpose of the rule change is not an issue in this case.  Spencer did not lose her right to a jury
trial.  Spencer had a jury trial.
      The misdirection which the majority follows is very subtle.  It begins with the wording of
Spencer’s issue.  The issue focuses on getting 45 days notice of a trial setting rather than which
setting the notice is for.  The issue is worded:  “The trial court erred by requiring appellant to
proceed to trial with less than 45 days notice as required by Tex. R. Civ. Pro. 245.”  The issue
does not mention that it is only the first trial setting for which 45 days notice is required, and that
the setting about which complaint is made was the second setting.
      The relevant question is:  What is a “first setting” for trial?  Can it mean, as the majority
holds, that there is no “first setting” until the litigants are provided at least one notice of trial of
not less than 45 days?  That is certainly not how the Rule is written.  See O’Connell v. O’Connell,
843 S.W.2d 212, 215 (Tex. App.—Texarkana 1992, no writ).  Based upon the express language
of the rule, if for any reason the trial is not held on the first setting, the length of notice that had
been provided for the first setting is immaterial when considering the sufficiency of the notice of
the second setting.  The only issue regarding the sufficiency of the notice for the second setting
is whether the notice meets minimum due process.  Id.
      The errant focus on having at least one notice of 45 days for a trial setting is the result of not
properly analyzing what constitutes a first setting.  The majority has held that if an order comes
from the trial court of a first setting that provides less than 45 days notice, the setting is
“ineffectual.”  We will return in a moment to the term “ineffectual,” but will focus for now on
the effect of that holding.
      The effect of what the majority has held is that the trial court’s order noticing the trial setting
on October 23 was no trial setting at all.  If the setting is the equivalent of no setting at all, as the
majority has held, the litigants may not need to do anything to avoid the consequence of the trial
court’s order which sets a case with less than 45 days notice.  It is as if a first setting without at
least 45 days notice is a nullity because it is not authorized by Rule 245.  But we know just
because the trial court has done something not authorized by the Rules, does not make the trial
court’s act a nullity.  Ex Parte Seidel, 39 S.W.3d 221, 224 (Tex. Crim. App. 2001).  The potential
ramifications of any other holding could be profound.  See Id.  By extension of the holding that
the setting was “ineffectual,” does it mean that the trial never occurred?  Does it mean that the
trial occurred without any notice, in violation of one of the most fundamental tenants of due
process?  Of course not.
      We now return to the term that has caused the problem in construing Rule 245; “ineffectual.” 
Tex. R. Civ. P. 245.  We are now the third court to use the term “ineffectual” in the context of
construing Rule 245 without defining what the term means.  It was first used by the Texarkana
Court of Appeals in Bell in 1993.  Bell Helicopter Textron, Inc. v. Abbott, 863 S.W.2d 139 (Tex.
App.—Texarkana 1993, writ denied).  I believe the Texarkana Court was simply wrong when it
held that because the notice of the first setting was ineffectual that the second setting “must
necessarily be considered a first setting.”  Id. at 140-41.
      Citing Bell, the Tyler Court of appeals used the term “ineffectual” in Hardin in 1995, and
used it again in Platt in 1999.  Hardin v. Hardin, 932 S.W.2d 566, 567 (Tex. App.—Tyler 1995,
no pet.); Platt v. Platt, 991 S.W.2d 481, 484 (Tex. App.—Tyler 1999, no pet.).  Neither Hardin
nor Platt involved a second setting, and thus, did not examine the meaning of the term as applied
to a first or second setting.
      Rather than the vague term “ineffectual,” I submit the proper term is “defective.”  Notice of
a first trial setting that is less than 45 days is defective.  But notice of a first trial setting that is less
that 45 days is still notice.  It is still notice of the first trial setting.  When properly objected to,
the defective notice may be corrected by providing “any reasonable notice” of the second or
subsequent setting.  Tex. R. Civ. P. 245.  A defective notice may be corrected by a later setting
and notice that complies with due process.  And, if not properly objected to, like most defects, the
defect in the first setting is waived.  Tex. R. App. P. 33.1.
      There was a notice of a first setting in this case.  After deducting three days for service by
mail, the notice provided only 42 days notice of the first trial setting.  Spencer properly objected
to the defective notice and moved for a continuance based upon the failure to give a full 45 days
notice of the first setting.  The continuance was granted.  The trial date was reset during the same
hearing immediately after the trial court granted the continuance.  No objection was made to the
length of notice given or date set for the second setting until several weeks later.  Twelve days
prior to trial, and then again 4 days prior to trial, Spencer moved for a continuance arguing there
had been no setting that provided at least 45 days notice.  The Rule only requires 45 days notice
for a first setting.  The second and third motions for continuance were attacking the sufficiency
of the notice for the second trial setting.  Thus, the trial court did not err in overruling the second
and third motions for continuance which were based on the misdirected argument that the second
setting provided less than 45 days notice in violation of Rule 245.
EVIDENCE PECULIAR TO THIS CASE
      The majority also addresses the admissibility of photographs because the same issue may arise
during trial on remand.  Because this issue is essentially peculiar to this case I will limit my
comments expressing my disagreement with the majority’s analysis.  The majority focuses only
on whether the evidence of prior poor housekeeping is relevant to a determination that Spencer
violated one of the predicate acts alleged as a basis for termination of her parental rights.  The
majority ignores the relevance of Spencer’s ability, or inability, to maintain an appropriate
environment in which to raise children and its relevance to the issue of the best interest of J.B. 
While the relevance of good housekeeping may have been remote in time to the events surrounding
termination, this goes to the weight and not the admissibility of the photographs.  I would hold the
trial court did not abuse its discretion in admitting the photographs of prior places where Spencer
had lived.
RELIEF BEYOND THAT REQUESTED
      As previously noted, the majority has granted relief not requested by either party.  The
majority has set a new calendar from which to compute the mandatory dismissal date.  The
mandatory dismissal date is one of many factors that the trial court must consider when setting a
trial date in termination cases.  See Tex. Fam. Code. Ann. §§ 263.401, 263.403 (Vernon Supp.
2002).  The trial court was aware of this statutory deadline by which a judgment had to be signed
or certain actions taken.  The trial court was concerned about having to return J.B. to the
environment from which the child was taken if the judgment was not signed by the extended
dismissal date.  The attorney ad litem argued that it was in J.B.’s best interest to go to trial and
get the issue of termination resolved.  The trial court had to decide between additional discovery
for the mother, versus J.B.’s best interest.  Because I do not find that the trial court abused its
discretion in denying the second and third motions for continuance on the basis that Spencer had
not received a notice of 45 days, I do not have to craft a remedy regarding the mandatory dismissal
date.  The majority has, however, crafted a remedy to avoid the statutory consequences of
reversing this case.  Neither party has requested that we extend the dismissal date.  I believe that
the majority errs in granting relief that no party has requested.
BROAD FORM SUBMISSION
      Finally, I must comment on the majority’s decision to avoid deciding this case on one of the
other issues presented.  The majority has a clear holding in this court’s precedent to reach the
same result, but for some inexplicable reason has chosen to avoid disposing of this case on that
issue.  The eighth issue is:  “Does it violate appellant’s due process and due course of law rights
for their parental rights to be terminated based on disjunctive allegations of conduct, but answered
only on a broad-form question?”  This court has previously held the answer to this issue is: 
“Yes.”  In the Interest of B.L.D., 56 S.W.3d 203 (Tex. App.—Waco 2001, pet. granted).  But
yet, the majority declines to resolve this case on this clearly established precedent.  I dissented
from the court’s decision in B.L.D., and will continue to note my dissent on opinions decided on
that basis until the precedential value of B.L.D. is resolved.  It does seem odd, however, that the
majority would choose to launch into murky water to resolve this case on a controversial theory
when they could anchor the result to an issue directly presented in the case at hand.  It leaves a
discerning reader to wonder why.
CONCLUSION
      The majority reverses the case on Spencer’s first issue and then proceeds to address several
other issues they think may occur on remand.  No useful purpose would be fulfilled to state further
disagreement with the majority on their discussion of the other issues they have addressed or to
discuss the issues they have not addressed.  I would overrule Spencer’s issue regarding the notice
requirements of Rule 245 and the issues challenging the admission of Dr. Shinder’s testimony and
the other evidence discussed.  Accordingly, I respectfully dissent.
 
                                                                         TOM GRAY
                                                                         Justice

Dissenting opinion delivered and filed November 27, 2002
Publish
