
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-05-00645-CV


In the Interest of A. P.; C. O., III; R. O.; M. O.; and M. O.




FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
NO. 202,881-B, HONORABLE RICK MORRIS, JUDGE PRESIDING


M E M O R A N D U M  O P I N I O N
 
		Janet Osborne appeals from a decree based on a jury verdict terminating her parental
rights to four children, C. O., III; R. O.; M. O.; and M. O.  In her sole issue on appeal, Osborne
contends that the trial court abused its discretion in refusing to strike two expert witnesses whom the
Texas Department of Family and Protective Services did not properly disclose in response to her
disclosure requests under Texas Rule of Civil Procedure 194.  We will affirm.

BACKGROUND
		Osborne is the mother of the five children who were the subject of the proceedings
below: then seven-year-old A. P., five-year-old C. O., III; four-year-old R. O.; two-year-old M. O.;
and six-month-old M. O.  The case was tried to a jury before an associate judge.  The jury heard
evidence that, among other things:

The proceedings were initiated after a passing motorist noticed one of Osborne's children,
wearing only a diaper and t-shirt on a cool and rainy day, standing alone in tall grass near a
roadway. 

 

Law enforcement investigated.  Discerning that the child had come from Osborne's house,
officers investigated and discovered what they characterized as "nasty," a "dump yard," and
among the worst houses they had ever seen.  One officer recounted that "there was rotted
meat, feces all over, dirty diapers all over," food with "green mold, fungus all over it," a tub-like object "like a baby washer" in the middle of the living room "filled up halfway with milk
and cereal in there almost like it was a feeding bin or something," and a bathtub filled with
between two to four inches of brown, stagnant water that "looked like it had been there for
weeks to a month."

 

Another officer testified that he found, in the living room, "a butcher knife that was just
laying on the floor accessible to kids in the house" and, in one of the bedrooms, a "crack
pipe."  Osborne later indicated that the pipe belonged to her husband, Charles.

 

In the back of the house, an infant was found on a bed, wrapped in a blanket with a bottle
still in its mouth.   No adults or older children were present in the house. 
 While officers were investigating, Osborne and Charles Osborne arrived at the house.  There
was evidence that Osborne had left her children with a man, "J. B.," whom she had met only
the previous day and whose surname she did not know, to go look for Charles, whom she
found in a motel room using crack with another woman.
 At times, Osborne had left the children in the care of her mother, whom she knew used
"weed" and ecstasy, and a friend who had hit one of the children in the face with a belt.

 

There was evidence that Charles Osborne had sexually abused A. P., that A. P. had informed
Osborne of the abuse, and that Osborne's sole response was to forbid Charles to be alone
with A. P.  A child therapist testified that this response was not "adequate protection" for
A. P. and that an adequate parenting response would have been to put Charles out of the
house and get therapy for A. P.  Based on this and other events, the therapist opined that
Osborne "was not able to be properly protective."

 

The children's guardian ad litem testified that the children were doing very well in their
foster care placements, "should remain under the conservatorship of the department and
should be freed for adoption," and Osborne's parental rights terminated.

 
 
		The trial court submitted a termination issue regarding the four youngest children with
instructions regarding the statutory grounds of endangerment and violation of a court order.  See Tex.
Fam. Code Ann. § 161.001(1)(D), (E), (I) (West Supp. 2006).  The jury found by clear and
convincing evidence that Osborne's parental rights to these children should be terminated. (1)  The
district court adopted the associate judge's proposed decree based on the verdict. (2) 
		Osborne appeals the portions of the decree terminating her parental rights to C. O.,
III, R. O., M. O., and M. O.  She does not challenge the sufficiency of the evidence supporting the
jury's termination finding.  Rather, she brings a single issue complaining that the trial court
reversibly erred in failing to strike two of the department's witnesses: Dr. Michael Campbell, a
court-appointed psychologist who had performed a psychological examination on Osborne, and Ryan
Malsbary, (3) the department's caseworker assigned to the children.  
		Dr. Campbell was appointed by the trial court on March 24, 2004--within ten days
after the department filed its petition and the trial court first entered temporary orders removing the
children--to interview and evaluate Osborne to assist in determining the best interests of the children
by identifying any risk of harm she presented and "giving a professional opinion as to whether
rehabilitation efforts . . . can provide a safe and stable environment for the children in the home,"
considering Osborne's capacities for effective parenting, her "functional abilities" to meet the
children's needs, her "personality factors . . . such as: motivation, concern for the child[ren], mental
status, poor judgment," and "the need for and likely success of clinical interventions for observed
problems."   The trial court ordered that "a detailed written report of the examination" setting out
Dr. Campbell's findings, including results of tests made, diagnoses, and conclusions be prepared by
Dr. Campbell, provided to all parties, and filed with the court by May 31, 2004.  
		The record reflects that a copy of this report, dated April 28, 2004, was admitted into
evidence in an August 18, 2004 permanency hearing.  Osborne does not dispute having received a
copy.   In his report, Dr. Campbell listed the evaluation procedures he employed (reviewing the
department's file concerning the children and family, a clinical interview, a mental status
examination, and three objective tests: the Wide Range Achievement Test, Revised .3; the Wechsler
Abbreviated Scale of Intelligence (WASI); and the Minnesota Multiphasic Personality Inventory-II
(MMPI-2)).  The report summarized Osborne's personal history and the history of the department's
involvement with her children. The report then provided a detailed analysis of Osborne's
examination, including explanations of the results of the various tests Dr. Campbell administered. 
Finally, the report provided Dr. Campbell's summary and conclusions.  Dr. Campbell stated that
Osborne "does not accept responsibility for the wrongdoing in her life," "was dysthymic and
apprehensive throughout the evaluation," and had intelligence "in the Low Average range of
intellectual functioning." 
		 In specific response to the issues presented by the trial court, Dr. Campbell opined
that Osborne's "capacity for effective parenting is poor," noting that she had "repeatedly allowed her
home to become a safety hazard for her children" and allowed drug users and persons she barely
knew to care for her children yet "admits to no wrongdoing."  Dr. Campbell concluded that "[t]here
is concern for future neglect . . . due to a tendency to allow dangerous individuals around the
children, her dependency on men for decision-making, and her inability to maintain cleanliness and
safety in her home."  Dr. Campbell also opined that Osborne's "motivation to meet her children's
needs and to build a positive, fulfilling relationship with them is poor," noting that "[s]he is an
individual to whom forming relationships and attachment to males is more important than building
relationships with her children."  Campbell diagnosed Osborne with, among other things, dependant
personality disorder ("a pervasive and excessive need to be taken care of that leads to submissive and
clinging behavior and fears of separation").  He opined that for any therapeutic intervention to be
successful, Osborne would have to "take responsibility in making decisions and setting goals,"
"understanding and accepting responsibility for her neglectful and abusive behaviors," and learn
"how to deal with stressful situations without . . . depending on men to make decisions for her." 
		Several months later, in June 2005, Osborne served on the department requests for
disclosure, requesting the information specified in Texas Rule of Civil Procedure 194.2.  The
department responded.  Regarding rule 194.2(f), concerning testifying experts, the department
provided the "name, address, and telephone number" of several experts, see Tex. R. Civ. P.
194.2(f)(1), including Dr. Campbell and Ryan Malsbary, plus a brief statement of each witness's
connection to the case: Campbell had "conducted a psychological evaluation of . . . Janet Osborne,"
and Malsbary was  "the current caseworker for the children."  But the department did not otherwise 
purport to provide the information required by subparts 2, 3, and 4 of rule 194.2(f), including "the
subject matter on which the expert will testify," "the general substance of the expert's mental
impressions and opinions and a brief summary of the bases for them," or "all documents, tangible
things, reports, models, or data compilations that have been reviewed by or prepared by or for the
expert in anticipation of the expert's testimony."   See id. 194.2(f)(2)-(4).  
		On August 24, Osborne moved to strike several of the experts designated in the
department's disclosure responses--including Malsbary, but not Dr. Campbell--on grounds that the
department had not "disclosed the general substance of . . . each expert's mental impressions and
opinions and a brief summary of the basis for them."  See id. 194.2(f)(3).  Also, with regard to
Malsbary, Osborne contended that the department had failed to provide a curriculum vitae or resume.
See id. 194.2(f)(4)(B).  In a separate motion filed the same day, Osborne sought to strike Dr.
Campbell's psychological report as unreliable and unfairly prejudicial.  See Tex. R. Evid. 702. 
Following an August 26 hearing, the court overruled both motions.  
		The jury trial commenced on August 29, 2005.  On August 30, prior to Dr. Campbell
testifying, Osborne objected to his testimony on the basis that the department had failed to disclose,
in compliance with rule 194, the general substance of Campbell's mental impressions and opinions
and a brief summary of the basis for them, see Tex. R. Civ. P. 194.2(f)(3), or all documents, tangible
things, reports, or data compilations that had been provided to, reviewed by, or prepared by or for
Dr. Campbell in anticipation of his testimony.  See id. 194.2(f)(4)(A).  In response, the department
argued that the psychological report and the records on which Dr. Campbell would have relied had,
in fact, been provided to Osborne. (4)  The trial court overruled Osborne's objection without specifying
the legal basis for its ruling, and Dr. Campbell proceeded to testify.  A redacted version of Dr.
Campbell's report, excluding portions that the district court deemed inadmissible because they
referenced Osborne's "unfounded drug use," was admitted into evidence.  Dr. Campbell's trial
testimony was based largely on his psychological report, reiterating his opinions and observations. 
On direct examination, he was asked to explain behaviors and events previously introduced through
other witnesses in terms of the psychological observations and opinions in his report.   
		Before Malsbary testified, Osborne reurged her rule 194 objection to his testimony,
reiterating that the department had failed to provide his curriculum vitae or resume.  See id.
194.2(f)(4)(B).  Additionally, Osborne objected that Malsbary was not "an expert in the area of
anything dealing with child custody or dealing with termination."  The department responded that
it was not planning on offering Malsbary as an expert witness. (5)  The trial court ruled that it would
"not allow him to testify as an expert" but clarified that it would allow Malsbary "to testify as to
what he believes is in the interest of a child" and "as to adoption mechanisms within the
department."  Malsbary then proceeded to testify.   Among other things, he  explained the procedures
involved in attempting to achieve the department's goal of "family reunification," if such
reunification is possible.  Malsbary explained that Osborne had not complied with all of the
department's services for achieving reunification but had complied with some.  Finally, Malsbary
testified as to the "adoptability" of the children--in other words, how likely it was that they would
be adopted.  Malsbary testified that he believed there was no reason why "these kids could not
be easily adopted."

DISCUSSION
 We review a trial court's ruling to admit or exclude evidence based on the discovery
rules for abuse of discretion.  State v. Target Corp., 194 S.W.3d 46, 49 (Tex. App.--Waco 2006,
no pet.).  A trial court abuses its discretion when it rules on the admissibility of evidence in an
arbitrary or unreasonable manner or without reference to guiding legal principles or rules.  Carpenter 
v. Cimarron Hydrocarbons Corp., 98 S.W.3d 682, 687 (Tex. 2002).  We must uphold a trial court's
evidentiary ruling if there is any legitimate basis in the record to support it.  Owens-Corning
Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); Taylor v. Texas Dep't of Protective &
Regulatory Servs., 160 S.W.3d 641, 650 (Tex. App.--Austin 2005, pet. denied). 
		Our disposition of Osborne's issue turns on two rules of civil procedure.  Rule 194
provides, in relevant part:

A party may request disclosure of any or all of the following:

. . . .

(f) for any testifying expert:

	(1) the expert's name, address, and telephone number;
 
	(2) the subject matter on which the expert will testify;

	(3) the general substance of the expert's mental impressions and opinions and
a brief summary of the basis for them, or if the expert is not retained by,
employed by, or otherwise subject to the control of the responding party,
documents reflecting such information;
 
	(4) if the expert is retained by, employed by, or otherwise subject to the
control of the responding party:

		(A) all documents, tangible things, reports, models, or data
compilations that have been provided to, reviewed by, or prepared by
or for the expert in anticipation of the expert's testimony; and

		(B) the expert's current resume and bibliography;

 
Tex. R. Civ. P. 194.2.  The department does not dispute that both Dr. Campbell and Malsbary were
"retained by, employed by, or otherwise subject to the control of" the department, obligating it to
provide the information specified in 194.2(f)(4), so we will assume so. 
		A party must respond to written discovery, including requests for disclosure under 
rule 194, in writing within the time provided by court order or the discovery rules.  Tex. R. Civ. P.
193.1.  When responding to written discovery, a party must make a complete response, based on all
information reasonably available to the responding party or its attorney at the time the response is
made.  Id.  If a party learns that its response to written discovery was incomplete or incorrect when
made, the party must amend or supplement the response.  Tex. R. Civ. P. 193.5.  
		The consequences for failing to timely respond to written discovery are governed by
rule 193.6:

(a) Exclusion of evidence and exceptions. A party who fails to make, amend, or
supplement a discovery response in a timely manner may not introduce in evidence
the material or information that was not timely disclosed, or offer the testimony of
a witness (other than a named party) who was not timely identified, unless the court
finds that:

	(1) there was good cause for the failure to timely make, amend, or
supplement the discovery response; or

	(2) the failure to timely make, amend, or supplement the discovery response
will not unfairly surprise or unfairly prejudice the other parties.

(b)  Burden of establishing exception.  The burden of establishing good cause or the
lack of unfair surprise or unfair prejudice is on the party seeking to introduce the
evidence or call the witness. A finding of good cause or of the lack of unfair surprise
or unfair prejudice must be supported by the record.


Tex. R. Civ. P. 193.6.  Rule 193.6 provides an alternative to the "draconian sanction of automatic
exclusion under former Rule 215(5), which required a showing of good cause."  Target Corp., 194
S.W.3d at 50.  The additional exceptions for lack of unfair surprise or unfair prejudice "reduce[] the
burden" on a party who is seeking to introduce a witness.  Elliott v. Elliott, 21 S.W.3d 913, 921 n.7
(Tex. App.--Fort Worth 2000, pet. denied). (6) 
		Osborne urges that the trial court abused its discretion in failing to exclude Dr.
Campbell (both his testimony and his report) and Malsbary under rule 193 because the department
failed to properly respond to her rule 194 disclosure requests.   We can quickly dispose of her
complaint regarding Malsbary.  As previously noted, the trial court did not permit Malsbary to testify
as an expert; thus, the requirements of rule 194.2(f) are not implicated.  Osborne does not present
any other ground for excluding Malsbary as a witness, and we hold that the trial court did not abuse 
its discretion in permitting him to testify.  
		Regarding Dr. Campbell, Osborne emphasizes that the department, at least within the
four corners of its disclosure responses, did not provide the general substance of his "mental
impressions and opinions and a brief summary of the basis for them," as required by rule 194.2(f)(3),
nor produce "all documents, tangible things, reports, models, or data compilations that have been
provided to, reviewed by, or prepared by" Dr. Campbell in anticipation of his testimony, as required
by rule 194.2(f)(4)(A).  Standing alone, the department's responses would constitute a "complete
failure to respond to discovery" regarding the information required under rule 194.2(f)(3) or (4).  See
VingCard A.S. v. Merrimac Hospitality Sys., 59 S.W.3d 847, 855-56 (Tex. App.--Fort Worth 2001,
pet. denied) (responding party provided only expert's name and subject matter of testimony).  Such
failure, absent a showing of good cause or lack of unfair surprise or unfair prejudice, would trigger
the automatic exclusion sanctions of rule 193.6.  Id. at 856. (7) 
		In response, the department contends that Osborne was not unfairly surprised or
prejudiced because Osborne had already received, many months earlier, the information required
under rule 194.2(f)(3) and (4) in the form of Dr. Campbell's report and the department's file
concerning the family.  See Tex. R. Civ. P. 193.6(a)(2).   It equates this case with In re W.D.W., 173
S.W.3d 607, 614-15 (Tex. App.--Dallas 2005, no pet.).   W.D.W. was a parental termination case. 
The parents sought to exclude a neuropsychologist who had examined the child and prepared a report
based on the department's failure to make full disclosures concerning the expert under rule 194.  To
satisfy its obligations under rule 194.2(f)(3) and (4), the department cross-referenced a "Child
Protective Services Case file previously provided." Id. at 614-15.  Distinguishing the case from
VingCard, the court stated that "the Department showed that Dr. Harrison's report containing the
general substance of his mental impressions and opinions and summary of the basis for those
opinions had previously been produced to Mother and Father in discovery."  Id.   It also observed
that the father had admitted during oral argument that Dr. Harrison's report was sufficient to comply
with rule 194 and that he was not surprised.  Id. at 615.  Even if the report had not complied with
rule 194, moreover, the court found a lack of prejudice because neither parent had objected to the
introduction of the report, which had contained the same opinions offered in his testimony, and that
both had the opportunity to prepare expert opinion in rebuttal.  Id. 
		Osborne points out that the department did not (at least in so many words) request
the trial court to find good cause or lack of unfair surprise or prejudice, nor did the trial court
explicitly make any such findings.  Alternatively, while not appearing to dispute that Dr. Campbell's
report would constitute a sufficient summary of the general substance of his mental impressions and
their bases, see Tex. R. Civ. P. 194.2(f)(3), Osborne urges that the department's prior production
of the report and its file on her did not discharge its obligation to produce "all documents, tangible 
things, reports, models, or data compilations" provided to or reviewed by Dr. Campbell. 
See id. 194.2(f)(4) (emphasis added).  Osborne claims that this alleged failure prevented her from
challenging the reliability of the opinions Campbell expressed in the report and at trial,
emphasizing that a portion of the department's history on Osborne provided to Campbell included
drug use allegations that the trial court later excluded as unfounded. 
		We agree with the department that the trial court did not abuse its discretion in
permitting Dr. Campbell to testify.  At trial, the department argued, in substance, that Dr. Campbell
should be permitted to testify because Osborne could not have been surprised or prejudiced where
she had previously received copies of his report and the department's file.  Osborne does not dispute
that she received these documents.  A finding of good cause or the lack of unfair surprise or unfair
prejudice must be supported by the record.  Id. 193.6(b).  However, such a finding may be implied
from the trial court's ruling permitting the witness to testify.   See, e.g., Brunelle v. TXVT, Ltd.
P'ship, 198 S.W.3d 476, 479 (Tex. App.--Dallas 2006, no pet. h.); Parker Plaza West, Ltd. v.
Boniuk Invs., Ltd., 153 S.W.3d 729, 734 (Tex. App.--Dallas 2005, no pet.); Bellino v. Comm'n  for
Lawyer Discipline, 124 S.W.3d 380, 384 (Tex. App.--Dallas 2003, pet. denied); Capital Metro.
Transp. Auth. v. Ctr. of Tenn. Ry. and Navigation Co., 114 S.W.3d 573, 583 (Tex. App.--Austin
2003, pet. denied); Wal-Mart Stores, Inc. v. Tinsley, 998 S.W.2d 664, 671 (Tex. App.--Texarkana
1999, pet. denied). (8)  On this record, the trial court did not abuse its discretion in impliedly finding
that the department had demonstrated that Osborne would not be unfairly surprised or prejudiced by
Dr. Campbell's testimony.  
		As in W.D.W., Osborne had previously received a copy of Dr. Campbell's
report--months earlier--as well as the department's file on her children.  See W.D.W., 173 S.W.3d
at 614-15.  Campbell's trial testimony was consistent with the opinions stated in his report.  See id.
at 615.  The record also reflects that the report and file previously provided to Osborne enabled her
counsel to challenge the reliability of Dr. Campbell's opinions on grounds that they were predicated
upon unfounded allegations of drug use, including extensive voir dire of Dr. Campbell regarding the
extent to which Campbell had relied upon those allegations.  Dr. Campbell explained that
such background facts or allegations were merely a starting point for his clinical interview,
that Osborne had denied drug use, and that the department's mention of possible drug use had not
impacted his opinions.  
		The trial court did not abuse its discretion in allowing Dr. Campbell to testify and in
admitting his report.  Alternatively, even if it did, we are not convinced that any such error was
harmful.  We will not reverse a judgment based on an improper evidentiary ruling unless the error
"probably resulted in an improper judgment."  City of Brownsville v. Alvarado, 897 S.W.2d 750, 753
(Tex. 1995); Beard Family P'ship v. Commercial Indem. Ins. Co., 116 S.W.3d 839, 849 (Tex.
App.--Austin 2003, no pet.).  To prevail, the complaining party must demonstrate that "the
judgment turns on the particular evidence excluded or admitted."  Alvarado, 897 S.W.2d at 753-54. 
We review the entire record to determine whether a party has met this burden.  Id. at 754.  Osborne
has not met this burden. 
		Under the district court's charge, in order to terminate Osborne's parental rights, the
department was required to prove by clear and convincing evidence (1) at least one of the three
submitted statutory termination grounds and (2) that it was in the children's best interest to terminate
the parent-child relationship.  The court's charge instructed the jury regarding factors it was to
consider in determining best interest, including the desires of the children, the emotional and
physical needs of the children now and in the future, the emotional and physical danger to the
children now and in the future; the parenting ability of the individuals seeking custody, the programs
available to assist those individuals to promote the best interest of the children, the plans for the
children of those individuals or by the agency seeking custody, the stability of the home or proposed
placement, the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one, and any excuse for the acts or omissions of the parent.  See
Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).  Dr. Campbell's testimony was relevant
to the best interest factor.     
		Osborne has not met her burden of demonstrating that the jury's best-interest
determination probably turned on Dr. Campbell's testimony and report.   As previously noted, the
jury heard testimony from other witnesses that Osborne had allowed her house to become a "safety
hazard" to the children; that Osborne had left her children, including a six-month-old infant, either
unattended or under the care of virtual strangers or others presenting a risk of harm to the children;
and that Osborne took inadequate steps to protect her seven-year-old daughter from her husband's
sexual abuse.  Additionally, the jury heard evidence from the children's guardian ad litem that the 
children's current placements were going "very well" and that Osborne's parental rights
should be terminated.  This was not a close case.  Any error in the admission of Dr. Campbell's
testimony was harmless.
		We overrule Osborne's sole issue on appeal.    


 CONCLUSION
		Having overruled Osborne's issue on appeal, we affirm the judgment of the district 
court.

							____________________________________
							Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed
Filed:   February 1, 2007
 

1.   The trial court also submitted a termination issue regarding Charles Osborne, the father of
the four youngest children, and the jury found that his parental rights to those children should be
terminated.  Regarding A. P., the trial court submitted issues regarding whether Janet Osborne,
Rodney Johnson, the child's father, or the department should be named managing or possessory
conservator.  The jury found that Johnson should be named managing conservator and Osborne
possessory conservator.  The decree incorporates these findings, and they are not challenged in this
appeal.     
2.   The decree was adopted by the district court in September 2005.  Due to delays in the filing
of the record and the parties' briefs, this appeal was not ready for submission until December 2006. 
3.   At least three different spellings of this name appear in the record, and a fourth is used in
the appellate briefs filed by the parties.  Malsbary did not identify the correct spelling in his trial
testimony.  The spelling above is that used in the documents prepared at trial by the department, Mr.
Malsbary's employer.       
4.   The department also argued that Osborne had waived her objection by not asserting it until
trial.  
5.   Malsbary had also been designated in the department's disclosure responses as a person
with knowledge of relevant facts and again identified as "the current caseworker for the children." 
See Tex. R. Civ. P. 194.2(e).
6.   Furthermore, exclusion is no longer the only remedy, as rule 193.6 also states that even if
the party seeking to introduce the evidence or call the witness fails to carry its burden under
paragraph (b), the court may grant a continuance or temporarily postpone the trial to allow a response
to be made, amended, or supplemented, and to allow opposing parties to conduct discovery regarding
any new information presented by that response.  Tex. R. Civ. P. 193.6(c).
7.   And a complaint that a party has completely failed to respond to a discovery request, as
contrasted with a complaint that discovery responses are merely inadequate, may be preserved by
objection at trial.  VingCard A.S. v. Merrimac Hospitality Sys., 59 S.W.3d 847, 856-57 (Tex.
App.--Fort Worth 2001, pet. denied).  Perhaps for this reason, the department has not urged on
appeal the waiver argument it asserted at trial.  
8.   See also De La Rosa v. St. John, No. 03-99-00282-CV, 2000 Tex. App. LEXIS 1371, at
*6 (Tex. App.--Austin March 2, 2000, no pet.).

