







Reversed and Remanded and Opinion filed December 5, 2002















Reversed and
Remanded and Opinion filed December 5, 2002.
 
 
In The
 
Fourteenth Court of Appeals
____________
 
NO. 14-01-01241-CV
____________
 
IN THE INTEREST OF N.R.C. AND L.A.C.
 
______________________________________________________________________
 
On Appeal from
the 306th District Court
Galveston County, Texas
Trial Court
Cause No. 91FD0011
 
______________________________________________________________________
 
O P I N I O
N
            Rachel appeals from a judgment
terminating her parental rights.[1]  She challenges the permissibility of the
trial court’s sanctions and its refusal to grant her request for an independent
psychological examination of the children and their father, David.  The trial court’s sanctions order precluded
Rachel from presenting any witnesses other than herself at trial.  We find the trial court abused its discretion
in imposing sanctions that were both impermissible under the circumstances and violative of the TransAmerican standards.  We also find the trial court abused its
discretion in denying Rachel’s request for an independent psychological
examination.  Accordingly, we reverse and
remand for a new trial.
I.  FACTUAL BACKGROUND
            Rachel and David divorced in
1991.  At that time, the trial court
named them joint managing conservators of their two children, N.R.C. and
L.A.C.  The children lived with David during
the school year and with Rachel during the summer.  In August 2000, David sought and subsequently
obtained termination of Rachel’s parental rights.  
            Prior to trial on the termination
suit, the trial court appointed an attorney ad litem
for the children.  The attorney ad litem filed a motion for security of costs and attorney’s
fees.  The trial court granted the motion
and ordered each party to deposit $2,500 with the ad litem
as security.  Rachel failed to pay the ad
litem’s deposit, and therefore, the ad litem filed a motion for enforcement of the trial court’s
order and for sanctions.  In her motion,
the ad litem requested that the trial court order
Rachel to pay the costs and attorney’s fees related to the motion.  She also asked the trial court to strike
Rachel’s pleadings and enter a judgment in favor of David.  In the alternative, the ad litem requested that the trial court hold Rachel in
contempt and punish her as the trial court deemed just and fair.  An associate judge heard the motion and
granted the ad litem a judgment for attorney’s fees
in the amount of $1,048.35.  Though the
motion did not request such a sanction, the associate judge further sanctioned
Rachel by prohibiting her from presenting witnesses on her behalf other than
herself.  The trial court adopted the
associate judge’s ruling, ordering that Rachel was “prohibited from presenting
any witnesses on her behalf, save and except herself, at the trial on the
merits.”
            At trial, David presented evidence
that Rachel had verbally and physically abused the children and that the
children did not want to visit Rachel. 
David introduced the testimony of Toni Jo Lindstrom, a licensed family
counselor, and Dr. Grace Jameson, a clinical professor in psychiatry at the University of Texas
  Medical Branch at Galveston.  Ms. Lindstrom and Dr. Jameson testified that
it would be in the best interest of the children to terminate Rachel’s parental
rights.  Rachel testified that she
recognized the need to control her anger and that with appropriate psychological
help, she could repair the relationship with her children.  As per the sanction, Rachel was not allowed
to present any other witnesses.  The jury
unanimously found that Rachel’s parental rights should be terminated.
II.  ISSUES PRESENTED FOR REVIEW
            Rachel raises four issues on appeal:
(1) the striking of witnesses is an impermissible sanction for failing to pay
attorney’s fees; (2) the trial court did not comply with the TransAmerican standards; (3) the trial court abused
its discretion and/or committed errors of law by striking her witnesses without
notice; and (4) the trial court abused its discretion by refusing her request
for a psychological examination of David and the children.
III.  DISCUSSION
            Before addressing Rachel’s points of
error, we first address David’s argument that the sanctions issue should not be
reached because Rachel failed to adequately perfect her appeal.  Specifically, David argues the sanctions
issue should not be reached because:  (1)
Rachel failed to appeal the master’s ruling and thus did not adequately preserve
error; (2) Rachel’s offer of proof of the proposed witnesses’ testimony is
inadequate; and (3) the proposed witnesses’ testimony is cumulative of Rachel’s
own testimony and, thus, its exclusion, if error, was harmless.
A.  FAILURE TO APPEAL THE MASTER’S RULING
            David claims Rachel waived her
challenge to the sanctions imposed by the associate judge because she did not
file an appeal of the associate judge’s ruling with the trial court.  See Tex. Fam. Code
§ 201.015.  Although section 201.015
indeed states that a party “may appeal
an associate judge’s report by filing notice not later than the third day after
the date the party receives notice of the substance of the associate judge’s
report,”  Id. (emphasis added), David fails to address section 201.015 in
conjunction with section 201.016, which provides:
(a) Failure to appeal to the referring court, by waiver or otherwise,
the approval by the referring court of an associate judge’s report does not
deprive a party of the right to appeal to or request other relief from a court
of appeals or the supreme court.
(b) The date an order or judgment by the referring court is signed is
the controlling date for the purposes of appeal to or request for other relief
from a court of appeals or the supreme court.
 
Tex. Fam. Code § 201.016;
see also In re S.G.S., 53 S.W.3d 848,
852 (Tex. App.—Fort Worth 2001, no pet.) (finding that failure of
father-defendant to appeal associate judge’s venue ruling to referring court
did not preclude appellate review). 
Thus, under section 201.016, Rachel need not have appealed from the
associate judge’s sanctions ruling in order to preserve her right to complain
to this court.  Id.
            At submission, David argued that the
“other relief” referred to in subsection (a) means relief other than the
particular measure which a party failed to appeal to the referring court.  We conclude that the phrase “other relief”
refers to any and all relief other than relief obtained from the referring
court.  Any other reading of the statute
would defeat the primary purpose of the section 201.016, which is to allow
litigants to appeal associate judges’ rulings that they did not appeal to the
referring court.  A plain reading of the
statutory language does not support David’s interpretation of section 201.016.  See State Dep’t of Highways & Pub. Transp.
v. Gonzales, 82 S.W.3d 322, 327 (Tex. 2002)
(noting that unambiguous statutes are to be interpreted according to their
plain meaning).
B.  SUFFICIENCY OF THE OFFER OF PROOF
            David also contends that Rachel’s offer
of proof was incomplete, and thus, the exclusion of her witnesses presents
nothing for review.  We disagree.  Defense counsel began his offer of proof
noting that Rachel would have called Paula Hudson, the executive director of
the Jameson Center.  In summarizing Hudson’s proposed
testimony, counsel introduced into evidence a letter in which Hudson detailed
her observations of Rachel and remarked upon her progress and suitability as a
parent.  Hudson concluded
that supervised visitation with “appropriate structuring” would provide
opportunities within a safe environment to enhance both the development of
positive relationships between Rachel and her children and to practice skills
learned in therapy.
            Defense counsel summarized the
proposed testimony of Rachel’s boyfriend and mother as follows:
“As further proof, had
[Rachel] been allowed to call witnesses to testify in her own behalf she would
have called Mr. Gregory Wassinger, who, as testimony
has revealed, has been her significant other for the past four years, to
testify to her actions and to the best interests of the children.  Had she also been allowed to put on testimony
she would have called Sameline [surname omitted] who
has also been referred to in reference to this case as Grandma Sammie, also to
testify to the best interests of the children.”
            Rule 103(a)(2) of the Texas Rules of
Evidence provides that error may not be predicated upon a ruling which excludes
evidence unless a substantial right of the party is affected, and the substance
of the objection was made known to the trial court by offer of proof.  Ludlow v. DeBerry, 959
S.W.2d 265, 269–70 (Tex. App.—Houston [14th Dist.] 1997, no pet.).  To adequately and effectively preserve error,
an offer of proof must show the nature of the evidence specifically enough so
that the reviewing court can determine its admissibility.  Bohatch v. Butler
& Binion, 905 S.W.2d 597, 607 (Tex.
App.—Houston [14th Dist.] 1995), aff’d, 977 S.W.2d 543 (Tex. 1998); Powell v. Powell, 554 S.W.2d 850, 854–55
(Tex. App.—Tyler 1977, writ ref’d n.r.e.).  Rather than mandating formal proof, however,
the Rules require only a “short, factual recitation of what the testimony would
show is sufficient ‘evidence’ to preserve an issue for appeal.”  Cathleen C. Herasmichuk,
Texas Rules of Evidence Handbook 96 (4th ed. 2001).  Courts prefer a concise statement over a
lengthy or arduous presentation.  Tatum v. State, 798 S.W.2d 569, 571–72
(Tex. Crim. App. 1990).  The offer of proof may be made by counsel,
who should reasonably and specifically summarize the evidence offered and state
its relevance unless already apparent.  Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998).  If
counsel does make such an offer, he must describe the actual content of the
testimony and not merely comment on the reasons for it.  Love v.
State, 861 S.W.2d 899, 900–01 (Tex. Crim. App.
1993).
            Counsel referenced the “best
interests of the children” standard in his offer of proof.  This term immediately invokes the relevant
factors promulgated by the supreme court. 
See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).[2]  Here, as indicated above, Rachel’s attorney
adequately described the substance of the proposed testimony, introduced
Hudson’s letter and referenced the best interest of the children.  We find this showing sufficient under the
circumstances.
C.  CUMULATIVE NATURE OF THE TESTIMONY ON OFFER
OF PROOF
            In a final attempt to avoid an
inquiry into the trial court’s sanction, David contends the sanction was
harmless, as the testimony sought to be elicited was “clearly cumulative” of
that offered by Rachel.  Texas courts
have long recognized cumulativeness as grounds for the exclusion of probative
evidence.  Briones v. State, 12 S.W.3d 126, 128 (Tex. App.—Fort Worth 1999, no
pet.).  However, the Texas Rules of
Evidence discourage “needless presentation
of cumulative evidence,” not cumulativeness in and of itself.  Tex.
R. Evid. 403 (emphasis added).  The mere fact that another witness may have
given the same or substantially the same testimony is not the decisive
factor.  Bohmfalk v. Linwood, 742 S.W.2d 518, 521 (Tex. App.—Dallas 1987, no
writ).  Rather, we consider whether the
excluded testimony would have added substantial weight to the complainant’s
case.  Id.; see also Sims v. Brackett, 885 S.W.2d
450, 454 (Tex. App.—Corpus Christi 1994, writ denied).  
            As a litigant, Rachel retains the
right to prove her case in the most persuasive manner possible.  See
Alvarado v. State, 912 S.W.2d 199, 213 (Tex. Crim.
App. 1995).[3]  To defend herself, she may require several
witnesses addressing the same material issue, as the testimony may come from
disinterested sources or witnesses with differing vantage points.  Id.  Indeed, litigants may, and often do, offer
evidence from several different witnesses to prove one specific material
fact.  Often, the cumulative effect of
the evidence heightens, rather than reduces, its probative force.  Id.  Where, as here, different witnesses were to
offer varying perspectives of the best interest of the children, the probative
effect may likely have been heightened by the testimony of the stricken
witnesses.
            Based upon her own analysis and
observations, Hudson’s
testimony was unique and not cumulative of any testimony given by Rachel.  See Nikoloutsos v. Nikoloutsos,
47 S.W.3d 837, 839 (Tex. App.—Beaumont 2001, pet. denied) (“The testimony of a
disinterested person undoubtedly carries more weight than similar testimony
coming from interested parties to the case.”) 
Though David insists that Rachel’s mother and boyfriend are interested
witnesses, that possibility does not automatically transform their observations
into needlessly cumulative testimony unworthy of consideration.  Rare indeed is the family courtroom in which
multiple interested witnesses do not testify as to the best interests of the
children in a termination proceeding.  To
say that testimony from non-party witnesses would be needlessly cumulative of
the testimony of a single party witness would endorse an overly broad rule which
we decline to adopt.  We do not find that
the testimony of the stricken witnesses would have been needlessly cumulative
of that offered by Rachel.
IV.  APPELLANT’S POINTS OF ERROR
A.  STRIKING PLEADINGS FOR FAILURE TO PAY AD
LITEM FEES
            Rachel claims the trial court abused
its discretion because the striking of witnesses is an impermissible sanction
for failing to pay attorneys fees.[4]  We agree.
            A trial court has inherent power to
impose sanctions on its own motion.  In re Bennett, 960 S.W.2d 35, 40 (Tex.
1997).  In exercising discretion by
ordering sanctions, a trial court is limited by the Due Process Clause of the
United States Constitution.  Id. at 40. We
review a trial court’s sanctions ruling under an abuse of discretion standard. 
Chrysler Corp. v. Blackmon, 841 S.W.2d 844, 852–53 (Tex.1992); Daniel v. Kelly Oil Corp., 981 S.W.2d
230, 234 (Tex. App.—Houston [1st Dist.] 1998, pet. denied).  The trial court abuses its discretion when it
acts without reference to any guiding rules or principles.  Johnson v. Fourth Court of
Appeals, 700 S.W.2d 916, 918 (Tex.
1985).  The attorney ad litem did not specify any discovery abuses in her motion
for sanctions.[5]  Rather, the motion was entirely premised on
the issue of attorney’s fees due her. 
Although the exclusion of evidence is recognized as an appropriate
deterrent to abuse of the discovery process, such a sanction is improper where
the conduct bears no relationship to discovery.  Saxton v. Daggett, 864
S.W.2d 729, 734 (Tex. App.—Houston [1st Dist.] 1993, orig. proceeding) (“Where
there is no violation of the discovery rules, there is nothing to deter or
punish, and no compliance to secure.”); Baluch v. O’Donnell,
763 S.W.2d 8, 10 (Tex. App.—Dallas 1988, orig. proceeding) (“A trial court
abuses its discretion if the sanction it imposes does not further one of the
purposes that discovery sanctions were intended to further.”).  But see
Shirley v. Montgomery, 768 S.W.2d 430, 432–33 (Tex. App.—Houston [14th
Dist.] 1989, orig. proceeding) (finding failure to pay into attorney ad litem’s trust fund sanctionable
as funds were for discovery expenses).
            Particularly instructive is Stubblefield v. Stubblefield, in which
this court confronted a sanction based upon similar facts.  818 S.W.2d 221, 221 (Tex. App.—Houston [14th
Dist.] 1991, no writ).  In that case, the
trial court granted the appellant-father’s motion for continuance contingent
upon his reimbursing appellee-mother’s
litigation-related travel expenses.  Id.  The father failed to reimburse the mother,
who then filed a motion for sanctions which requested that his pleadings be
struck.  Id. at 222.  The
trial court granted the mother’s motion. 
Id.  Finding no authority permitting a trial court
to impose sanctions on such facts, this court reversed.  Id.  We observed that sanctions are authorized
when a party fails to comply with proper discovery requests or fails to obey an
order to provide or permit discovery.  Id.[6]  As neither a
discovery request nor a discovery order had been violated, and as neither
appeared to even have been implicated, this court found that the trial court
had abused its discretion in striking the father’s pleadings.  Id. 
            In both Saxton and Baluch,
trial courts struck the fathers’ pleadings for their failure to pay interim
attorney’s fees.  Saxton, 864 S.W.2d at 730; Baluch, 763 S.W.2d at 9. 
Though those cases dealt with motions for sanctions premised upon Rule
215, we find them sufficiently analogous in light of Stubblefield, in which the motion for sanctions did not appear to
allege any abuses of discovery rules.  See Saxton, 864 S.W.2d at 733; Stubblefield, 818 S.W.2d at 221; Baluch, 763
S.W.2d at 9.  In neither Saxton nor Baluch did the father engage, or attempt to engage, in abusive discovery
practices.  See Saxton, 864 S.W.2d at 734; Baluch, 763 S.W.2d at 20.  Indeed, the sanctions were enacted solely to
punish the fathers for their failure to pay the fees in question.  These courts clearly were not attempting to
apply any of the enunciated purposes of discovery sanctions by striking the
fathers’ pleadings.  See Saxton, 864 S.W.2d at 734; Baluch, 763 S.W.2d at 20.  Likewise, in this case, the trial court
sanctioned Rachel for behavior wholly unrelated to discovery.  We find no authorization for the trial court
to sanction in this manner under the circumstances of this case.  Accordingly, the trial court abused its
discretion in striking all of Rachel’s witnesses.
B.  THE TRANSAMERICAN
INQUIRY
            Rachel further contends that even if
the trial court acted permissibly or pursuant to its inherent contempt powers
in striking all of Rachel’s fact witnesses, the sanction violates TransAmerican as an inappropriate death penalty
sanction.  See TransAmerican Natural Gas v. Powell,
811 S.W.2d 913 (Tex. 1991).[7]  At submission, much of the disagreement
centered around TransAmerican.  We recognize that TransAmerican and its progeny apply these factors to gauge the permissibility of
discovery sanctions.  See
generally Remington Arms Co., Inc. v. Caldwell, 850 S.W.2d 167 (Tex. 1993); Chrysler Corp. v. Blackmon, 841 S.W.2d
844 (Tex. 1992); Braden v. Downey, 811 S.W.2d 922 (Tex.
1991).  In its motion for sanctions, the
attorney ad litem did not allege any discovery
abuses.  No court reporter recorded the
hearing at which the associate judge struck all of Rachel’s fact
witnesses.  Thus, we do not know whether
the ad litem argued discovery abuse at the hearing on
the motion.  If she did make such an
argument, we do not know whether Rachel objected or tried the issue by
consent.  Neither the associate judge nor
the trial court referenced discovery abuse in their respective orders.  In its Order on Petition for Enforcement of
Prior Order, the trial court did not mention discovery abuse as a ground for
the sanction.  Rather, the order merely
reiterated Rachel’s previous failure to comply with the court’s order requiring
the deposit of the attorney ad litem’s fees into
escrow.  Thus, we cannot assume that the
trial court’s order is properly characterized as a “discovery sanction.”  However, even assuming that the trial court
adopted the associate judge’s sanctions recommendation based on the attorney ad
litem’s allegations of witness tampering, thereby
predicating the sanctions order on alleged discovery abuse, we find the TransAmerican factors instructive in our inquiry into
this particular death penalty sanction.[8]
            Any sanction that adjudicates a
claim and precludes the presentation of the merits of the case constitutes a
death penalty sanction.  Adkins Servs.,
Inc. v. Tisdale Co., Inc., 56 S.W.3d 842, 845 (Tex. App.—Texarkana 2001, no
pet. h.); In re P.M.B., 2 S.W.3d 618,
624 (Tex. App.—Houston [14th Dist.] 1999, no pet.); In re Striegler, 915 S.W.2d 629 (Tex.
App.—Amarillo 1996, pet. denied).[9]  The refusal to permit a parent to call any
fact witnesses in a termination proceeding eviscerates that parent’s ability to
present the merits of her defense. 
Because testimony other than her own is essential in defending against
termination of her parental rights, the exclusion of Rachel’s witnesses is
properly characterized as a death penalty sanction.  P.M.B.,
2 S.W.3d at 624 (noting that the exclusion of evidence is an extreme penalty
akin to the striking of pleadings); see
also Roberts v. Golden Crest Waters, Inc., 1 S.W.3d 291, 292 (Tex.
App.—Corpus Christi 1999, no pet.) (noting that trial court’s exclusion of all
of a party’s witnesses was a death penalty sanction as it precluded the
presentation of the case).
            In
TransAmerican,
the supreme court promulgated factors for courts to use in weighing whether a
discovery sanction is just.  811 S.W.2d
at 917; see also Daniel v. Kelley Oil
Corp., 981 S.W.2d 230, 234–35 (Tex. App.—Houston [1st Dist.] 1998, pet.
denied).  Under the test set forth in TransAmerican, we measure the just nature of a
sanction by considering: (1) whether a direct relationship exists between the
offensive conduct and the sanctions imposed; and (2) whether the sanctions are
excessive.  811 S.W.2d at 917.
            The first standard requires a direct
relationship between the offensive conduct and the sanctions.  Id.  Accordingly, a just sanction must be directed
against the abuse and attempt to remedy any prejudice caused to the innocent
party.  Id.  Here, the death penalty sanction of exclusion
of witnesses is simply incongruent with the failure to pay the ad litem’s fee.  The
compensation of the attorney ad litem bears no direct
relationship to the testimonial evidence Rachel sought to adduce at trial.  Were this a case involving misconduct in the
discovery process, it might follow that an exclusion of essential evidence would
directly relate to the abuse of the discovery process.  Yet here, the evidentiary sanction was
designed to punish 

 class=Section2>

the
unrelated procedural obligation to pay the attorney ad litem.  We disapprove of a sanction premised upon any
such an unrelated connection.  In no
respect are the two directly related, and thus, the trial court’s sanction does
not pass the first prong of the TransAmerican test.
            Next, the sanction must not be
excessive.  TransAmerican, 921 S.W.2d at
917.  Colloquially, “the punishment
should fit the crime.”  Id.; Alvarado v. Farah
Mfg. Co., 830 S.W.2d 911, 914–16.  In
the present case, the sheer magnitude of the interest at stake in a termination
proceeding suggests that striking all of
a party’s witnesses is an excessively severe sanction.  See
Eason v. Eason, 860 S.W.2d 187, 191 (Tex. App.—Houston [14th Dist.] 1993,
no writ) (Draughn, J., dissenting) (recognizing that
trial court’s exclusion of a mother and her witnesses from testifying in
custody proceeding constituted a “civil death penalty”).  Certainly, the trial court was aware of the
gravity of the termination of parental rights, as it paused to recognize such a
proceeding as a “very severe thing” and dub it the “death penalty of the
parent-child relationship.”  See Sampson & Tindall, Texas Family Code Annotated § 161, Introductory Comment p. 757
(2001) (describing a termination of parental rights as “the capital punishment
of civil law”).  So weighty are the
interests at stake that the Texas Supreme Court has recognized that the
involuntary termination of parental rights implicates fundamental
constitutional rights.  Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re E.L.T., No. 14-01-00998-CV, 2002
WL 31043285, *4–5 (Tex. App.—Houston [14th
Dist.] 2002, no pet. h.) (Guzman, J., concurring).  Where, as here, a private party—and not the
State itself—is attempting to terminate parental rights, the constitutional
protections are equally applicable.  See Holick,
685 S.W.2d at 19–20 (noting constitutional implications in case in which father
brought termination proceeding against mother). 
Thus, in analyzing the severity of the sanction, we must bear in mind
that an exclusion of all fact witnesses severely limits a party’s ability to
protect its fundamental liberty interest in the direction of a child’s
upbringing.  See In re G.M., 596 S.W.2d 846, 847 (Tex. 1980)
(observing that termination proceedings must be strictly scrutinized so as to
safeguard “the natural right between parents and their children”).
            This court has previously reviewed
four factors in determining whether a sanction is excessive:
The most important factors
to consider in determining whether a sanction is excessive are (1) whether the
court considered and/or tested lesser sanctions to see if lesser sanctions
would promote compliance and deterrence and discourage further abuse; (2)
whether the sanctions are no more severe than necessary to satisfy the
legitimate purposes of a sanction (i.e., to secure compliance, to deter others
and to punish); and (3) whether the party’s hindrance of the discovery process
justifies a presumption that its claims or defenses lack merit.
Butan Valley, N.V. v. Smith, 921
S.W.2d 822, 831 (Tex. App.—Houston [14th Dist.] 1996, no writ).
            We need only address the first two
factors to conclude the sanction was overly severe.  Trial courts must consider lesser sanctions
before resorting to a death penalty sanction. 
Butan Valley, 921
S.W.2d at 827.  Before the trial court
excludes essential evidence, it must consider whether lesser sanctions are
adequate to accomplish the needed compliance, deterrence and punishment. 
P.M.B., 2 S.W.3d at 624.  In
an appeal regarding death penalty sanctions, we may not apply the legal
presumptions in favor of a judgment that normally apply following a trial.  Fletcher
v. Blair, 874 S.W.2d 83, 85 (Tex. App.—Austin 1994, writ denied).  No court reporter was present at the hearing
before the associate judge; therefore, we have no record from that
hearing.  Ordinarily, we would look to
the record to see if it reflects that the trial court considered the availability
of lesser sanctions.  GTE Communications Sys., 856 S.W.2d at
729.  Though we usually assume that an
incomplete record supports the order of the trial court, we may not conclude
from a silent record that the trial court considered lesser sanctions.  Compare
McFarland, 809 S.W.2d at 764 with
Fletcher, 874 S.W.2d at 85.  We find
no evidence that the trial court considered lesser sanctions for Rachel’s
failure to pay the ad litem fee.
            We must also consider whether the
sanctions are no more severe than necessary to satisfy the legitimate purposes
of a sanction.  Butan Valley, 921 S.W.2d at 831.  Sanctions cannot be used to adjudicate the
merits of a party’s claims or defenses TransAmerican, 811 S.W.2d at 918.  Here, the trial court left Rachel with only
her own testimony to protect her fundamental liberty interest in the care of
her children.  Hudson’s
testimony that supervised visitation was a viable alternative was necessary to
rebut the testimony of David’s experts, who testified that termination would be
in the best interest of the children. 
Had the jury heard Hudson’s
conclusions, it may have considered Dr. Jolly’s
psychological evaluation recommending therapy and visitations from a different
perspective.[10]  Observing that David brought forth several
witnesses, including experts, the jury might have drawn certain negative
inferences from Rachel’s apparent failure to call any witnesses in her own
defense.  It is not unreasonable to
suspect that Rachel’s appearance as her sole witness—without other fact or
expert witnesses to buttress her testimony—prejudiced her in the eyes of jury.
            Additionally, to silence witnesses
whose testimony is probative of the child’s best interest is to do a disservice
to the child.  We cannot approve of such
a sanction considering the interests at stake. 
As this court has observed:
[T]he best interest of a
child can only be attained when a court’s decision is as well-informed as the
circumstances allow.  A decision on
custody, possession, or access can rarely be well-informed without
consideration of the evidence and perspectives of both parents.  Because the exclusion of any important
evidence as a discovery sanction can only produce a less-informed decision,
contrary to the best interests of the child, we believe that it should be
resorted to only where lesser sanctions are either impracticable or have been
attempted and proven unsuccessful.
P.M.B., 2 S.W.3d
at 624–25.  Indeed, to strike a parent’s
witnesses in a termination proceeding is to disregard “[p]ertinent
facts which may directly affect the interests of the children [and which]
should be heard and considered by the trial court regardless of the lack of
diligence of the parties in their presentation of information to the
court.”  In re C.B.M., 14 S.W.3d 855, 865 (Tex.
App.—Beaumont 2000, no pet.) (Burgess, J., concurring and dissenting).  The best interests of the children cannot be
served by the arbitrary prohibition of the testimony of persons with knowledge
of relevant facts and probative opinions. 
Thus, the sanction in question is far more severe than necessary and
therefore violates the TransAmerican
standards.
C.  NOTICE AND DUE PROCESS
            Rachel further contends she did not
have any notice that her witnesses could be stricken, and thus, her
constitutional rights to due process were violated.  In support of this argument, Rachel notes
that the ad litem’s motion for sanctions requested,
in addition to the various costs and fees, that Rachel’s pleadings be struck
and that judgment be granted in favor of David. 
Nowhere in the motion did the ad litem request
that Rachel’s witnesses be struck, nor did the ad litem
cite any authority for the proposition that courts wield the power to impose
such a sanction under the circumstances of this case.
            As we have already found the trial
court’s sanctions impermissible and violative of the TransAmerican standards, we do not find it necessary
to address Rachel’s notice argument.
D.  PSYCHOLOGICAL EXAMINATION
            Rachel
complains that the trial court abused its discretion by refusing her pro se
request for a psychological examination of David and the children.  At
the hearing on the motion, Rachel argued:
I would like to see both of my children . . . and [David] have a
thorough and complete battery of tests. 
They’re wanting to prove a certain cause of action and they’re saying
that I’m to blame.  I’ve caused this,
that or the other by making points in their termination and I want to show that
my children, number one, aren’t damaged, and number two, that I am not the
cause of it.  There’s never been any
testing of anybody.  There was brief
testing of [L.A.C.].  The Court ordered
me to have a full battery of tests, and they intend to use and have brought in
Toni Jo Lindstrom, Ted Jolly and Dr. Jameson as witnesses in the case who are
expected to give testimony so I would like to have an expert evaluate them so
that we’ll have an independent person who’s evaluated it.
 
            In June of 2000, Rachel had been
ordered to have psychological evaluations and anger management sessions with
Dr. Ted Jolly. Independent medical evaluations are permitted under the Texas
Rules of Civil Procedure.  See Tex.
R. Civ. P. 204.1.  To obtain an order under Rule 204.1, the
requesting party must show both good cause and that the mental condition of a
party, or a person in the custody, conservatorship or
under the legal control of a party, is in controversy.  Id.  Family court judges may on their own
initiative or on the motion of a party, appoint psychologists or psychiatrists
to make any and all appropriate mental examinations of the children who are the
subject of the suit or of any other parties. 
Id 204.4.  The family court judge may make such an
appointment irrespective of whether a psychologist or psychiatrist  has been designated by any party as a
testifying expert.  Id.  
            In his First Amended Petition, David
averred that Rachel had knowingly jeopardized the emotional well-being of the
children.  Additionally, when asked by
the trial court about the grounds for termination, David’s counsel replied that
“psychological endangerment” prompted the suit. 
The jury charge defined “endangerment of emotional well-being” as “the
systemic tearing down of another human being.” 
Among the witnesses David produced at trial to support his theory were a
licensed professional counselor and a psychiatrist.  There is little doubt that the mental
condition of Rachel, David and the children were at issue in this proceeding.
            In her brief, Rachel relies on In re M.A.C. for the proposition that
the trial court placed such a severe restriction on Rachel’s ability to
discover facts to contradict the other expert witnesses that she was deprived
of a “champion in the battle of experts.” 
49 S.W.3d 923, 924 (Tex. App.—Beaumont, 2001, no
pet.).  Though we find this case
persuasive as applied to these facts, we note that the Beaumont Court of
Appeals withdrew this opinion only three weeks after Rachel filed her
brief.  Other courts, however, have come
to the same conclusion.  In Laub v. Millard, the trial court denied the
husband’s motion to compel his wife to submit to a mental examination in a suit
for divorce.  925 S.W.2d 363, 364 (Tex.
App.—Houston [1st Dist.] 1996, no writ). 
The wife had employed a psychiatrist and a psychologist, both of whom
submitted affidavits to the trial court after examining her.  Id.  Responding to interrogatories, the wife
stated that both mental health professionals would testify so as to establish
her incompetence during certain years.  Id.  As that was an issue in the case, the court
of appeals noted that the wife put her mental condition in controversy and
thereby gave the husband good cause for compulsory mental examination.  Id. at
365.  The court found that “fundamental
fairness” dictated that the husband prevail, lest he be severely disadvantaged
in the “battle of experts” expected at trial. 
Id. (quoting Sherwood Lane Assocs. v. O’Neill, 782
S.W.2d 942, 945 (Tex. App.—Houston [1st Dist.] 1990, orig. proceeding)).
            Laub, however, is distinguishable
in that the wife had employed the experts. 
We recognize, of course, that the expert witnesses in this case were not
David’s witnesses in the sense that he sought them out and hired them.  These expert witnesses were appointed by the
trial court and came to conclusions which favored David.  David merely availed himself of their
testimony.  However, we do find the Laub case sufficiently analogous under these
facts.  The record reflects that in the
termination case the trial court ordered only Rachel to submit to a battery of
psychological tests.  There is no evidence
in the record of any such psychological tests performed on David or the
children in connection with the termination proceeding.  Although David, Rachel, and the children all
attended various counseling sessions, Rachel’s motion requested an independent
psychological evaluation. 
            To prevail on her motion, Rachel
must show both good cause and that the mental condition of a party, or a person
in the custody, conservatorship or under the legal
control of a party, is in controversy.  See Tex.
R. Civ. P. 204.1.  Rachel merely sought access to the same type
of psychological information that David sought to use against her in alleging
“psychological endangerment.”  Here, the
judge ordered that Rachel submit to a battery of psychological tests and then
denied her reciprocal request that David do the same.  Good cause for a psychological examination is
established where the petitioner intends to use expert medical testimony to
prove a fact in controversy.  Laub, 925 S.W.2d
at 364.  We find that good cause for a
mental examination was established when David evidenced his intent to use
psychological and psychiatric testimony to prove his case.  In so doing, David certainly made the mental
condition on the parties and the children an issue in the proceeding.  In denying Rachel’s request, the trial court
abused its discretion by leaving her at a severe disadvantage.  Id.
X.  CONCLUSION
            In conclusion, we find the trial
court abused its discretion in striking all of Rachel’s fact witnesses as it
was without the power to do so and the measure violated the standards set forth
in TransAmerican.  We also find the trial court abused its
discretion in denying Rachel’s pro se motion for an independent psychological
examination.  The judgment of the trial
court is reversed and the cause is remanded for a new trial.
                                                                        /s/        Eva M. Guzman
                                                                                    Justice
 
Judgment rendered and Opinion filed
December 5, 2002.
Panel consists of Justices Edelman,
Seymore, and Guzman.
Publish — Tex. R. App. P. 47.3(b).




            [1]  Because of the nature of this case, we refer
to the parties by their first names only and the children by their initials
only.  See Tex.
Fam. Code Ann. § 109.002(D) (Vernon 1996); see also S.V. v. R.V., 933 S.W.2d 1, 3 (Tex. 1996).


            [2]  These factors include (1) the child’s desires;
(2) the child’s physical and emotional needs, now and in the future; (3) the
emotional and physical danger to the child, now and in the future; (4) the
parental ability of the individuals; (5) the programs available to assist these
individuals in promoting the child’s best interests; (6) the plans for the
child by the individual or agency; (7) the stability of the home or proposed
placement; (8) the parent’s act or omissions that may indicate the existing
parent child relationship is not a proper one; and (9) any excuse for the
parent’s acts or omissions.  Holley, 544 S.W.2d at 371–72.


            [3]  In 1998, the Texas Rules of Civil and
Criminal Evidence were unified into the current Texas Rules of Evidence.  See Tex. R. Evid.
101(b).  Though this is a civil proceeding
(with arguably quasi-criminal underpinnings), we find guidance in the
evidentiary analysis of the Texas Court of Criminal Appeals.  Cf.  In re J.M.S., 43 S.W.3d 60, 63 n.1
(Tex. App.—Houston [14th
Dist.] 2001, no pet.) (noting quasi-criminal nature of termination
proceedings).


            [4]  By rule, statute, and their own inherent
power, trial courts have broad authority to sanction litigants for specific
misconduct.  Texas Rule of Civil
Procedure 215 authorizes sanctions for abuse of discovery, while Rule 13 permits
sanctions against attorneys who sign pleadings, motions, or other papers that
are both groundless and either brought in bad faith or for the purpose of
harassment.  See Tex. R. Civ. P. 13, 215. 
The Texas Civil Practice and Remedies Code also allows sanctions for
pleadings and motions filed for improper reasons.  See Tex.
Civ. Prac. & Rem. Code Ann. § 10.001 et seq.  The ad litem’s
motion did not specify a rule or statute upon which the request for sanctions
was based.


            [5]  Although the motion was bare of any
allegations of discovery abuse and did not invoke any rules related to
discovery, the attorney ad litem did accuse appellant
of witness tampering during one proceeding. 
In explaining the motion to the trial court, the attorney ad litem alleged:
 
[I]t is not
my normal procedure to file a motion for enforcement on ad litem
fees. . . .  My biggest concern and the
reason I filed that enforcement is that I had been instructed by Ms. Look that
I was not to contact witnesses that were going to be billed against her account
and that they’ve been instructed not to speak to me and then that left my hands
tied in order to be able to represent the best interests of the children.
 
However, an
attorney’s unsworn statements are not evidence.  In re
Doe 3, 19 S.W.3d 300, 305 (Tex. 2000); Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997); United States Gov’t v. Marks, 949
S.W.2d 320, 326 (Tex.
1997).  Thus, we cannot elevate the ad litem’s mere assertion into evidence of discovery abuse.


            [6]  Though holding that the trial court had
exceeded its authority, this court did find it “reprehensible” that the father
would agree in open court to reimburse the mother for her expenses and then
later refuse to do that which he had promised. 
See Stubblefield, 818 S.W.2d
at 222.


            [7]  Assuming the trial court acted pursuant to
its inherent power to sanction, we find that it abused in discretion in
striking all of appellant’s witnesses for the failure to pay the ad litem deposit.  Trial
courts wield inherent powers not derived from specific legislation or
constitutional provisions but necessary for the exercise of the court’s
jurisdiction, administration of justice, and the preservation of the court’s
independence and integrity.  Eichelberger v. Eichelberger,
582 S.W.2d 395, 398 (Tex.
1979);  see also Bridas Corp. v. Unocal Corp., 16
S.W.3d 887, 889 (Tex. App.—Houston [14th
Dist.] 2000, pet. dism’d w.o.j.)  The trial court’s inherent power to sanction
exists only to the extent necessary
to deter, alleviate, and counteract bad faith abuse of the judicial process,
such as any significant interference with the traditional core functions of Texas
courts.  Lawrence v. Kohl, 853 S.W.2d 697, 700 (Tex. App.—Houston [1st
Dist.] 1993, no writ) (citing Kutch v. Del Mar Coll.,
831 S.W.2d 506, 510 (Tex. App.—Corpus Christi 1992, no writ).  Appellate courts reviewing sanctions imposed
pursuant to the court’s inherent power apply an abuse of discretion
standard.  Lawrence, 853
S.W.2d at 700.  Under the facts
of this case, we cannot say that the failure to pay the ad litem
fee amounted to bad faith abuse of the judicial process so as to justify such a
severe sanction.


            [8]  No court reporter recorded the hearing at
which the associate judge struck all of Rachel’s fact witnesses.  As appellant, Rachel bears the burden to
produce the entire record to prove harmful error that entitles her to reversal
of the case.  See McFarland v. Szakalun, 809 S.W.2d
760, 764 (Tex. App.—Houston [14th Dist.] 1991, writ denied).  When the record is incomplete, we must assume
that the portion omitted supports the correctness of the trial court’s
judgment.  Id.  However, in cases that involve the
parent-child relationship, the best interests of the child or children are of
paramount importance.  In re Macalik,
13 S.W.3d 43, 45 (Tex. App.—Texarkana 1999, no pet. h.).  From the record in the present case, we are
able to address the issues of whether the trial court may impose such a
sanction for such an infraction and whether that sanction was permissible under
the TransAmerican standards.


            [9]  Though certainly not dispositive
of the issue, David’s counsel stated before the trial court that she understood
the exclusion constituted “a death penalty sanction and that’s very harsh
especially when she’s paid the trial retainer.” 
Cf. Texas Lawyer’s Creed—A Mandate for Professionalism, § III
(19) (“I will not seek sanctions or disqualification unless it is necessary for
the protection of my client’s lawful objectives or is fully justified by the
circumstances.”)


            [10]  Though Dr. Jolly did not testify, David
introduced his June 4,
 2000 psychological evaluation of Rachel into evidence.


