NO. 07-00-0239 -CV IN THE COU RT OF APP EALS FOR THE SEVENT H DISTRICT OF TEXAS

AT AMA RILLO PANE L C JANUA RY 3, 2002

______________________________ IN THE INTE REST OF CD K, JLK, and BJK, M inor Children

_________________________________ FROM THE 223 rd DISTRICT COURT OF GRAY COUNTY; NO. 31,162; HON. LEE W ATERS, PRESIDING

_______________________________ Before QUINN, REAVIS and JOHNSON, JJ. In this appeal, Marshall and Rose Keys (the Keys), chall enge a tria l court’s judgm entterm inating their parental ri ghts to thei r chi ldr en, CDK, JLK, and B JK. So too has the attorney ad litem representing the children filed a notice of appeal co ntesting the termination. Three issues pend for our resolution. They involve 1) the legal and factual suffici ency of the evidence supporting term ination, 2) the admission of ex pert testim ony concerning the findings of an Abel Asses sm ent conducted upon Ma rsh all Keys, and 3) t he admission into evidence of M arshall Keys’ 1977 crim inal conviction for sexually abusing a child, namely his daughter from a prior marriage. We reverse. Backgr ound The Keys w

ere ma rried in 1987, and their ch ildr en, CDK, JLK and BJK , were born in 1988, 1989 and 19 91, respecti vely. Child Protective Services (CP S) becam e involved2

with the fam ily in 1991 and sub seq uen tly rem ove d th e ch ildre n in Novem ber 1992. The purported reason for doing s o i nvolved physical abuse suffered by C DK and physical neglect experienced by the other two c hildren. Testimony

reflected that both the K eys we re unkem pt and m aintained a dirty house. The latter was in ex

treme disarray with trash strewn on the floor and roaches covering the floor, wall s and ceil ing. One witness spoke of how the walls appeared to be m oving and how roaches craw led into her purse and fell from theceiling onto h er. This condition, as
w ell as Ros e’sabu se of alcoho l, were concerns to thevar iousage ncie s w hich alleg edly tried to assi st the Keys. Subsequently, in 1994, all three children were retu rne d to the hom e. CPS along
w ith o ther local agencies continued to provide services to the fam ily. And, though the ho me env iron m ent

im pro ved , th e im pro vem ent did n ot cont inue . Th e Keysunila ter ally ceased givi ng o ne of th eir c hildr en n eed ed m edication, and a ll three youths began to
ex hibit inappropriate behavior. Instances of Rose’ s continued abuse of alcohol also were docum ented, and on one occasion her intox ication resulted in her leaving the chil dren unsupervised while she lay unconscious at the hom e of her em ployer. A p etit ion f

or term inat ion w

as f iled wher

ein CP S a llege d tw

o gr oun ds p urp ort edly justifying such relief. Specifically, it al lege d that the Keys had 1) know ingly placed or know ingly

allowed the children to rem ain in conditions orsurroundings which endangered the physical or emot ional well-being of the children an d 2) engaged in conduct or know ingly

placed the children with persons who engaged in conduct wh ich endangered3

the physical or emot ional well-being of the children. T EX . F AM . C ODE A NN . §161.00 1(D) & (E). The term ination proceedings against both parents were tried jointly. Evidence was introduced aboutthe Keys’ alcohol consumption, Rose’s 1990 plea of guiltyto a charge of driving w hile intoxicated, Marsha ll’s 197 7 convicti on for sexual assaul t of a chil d, Rose’s plea of guil ty to injuring or endangeri ng a chil d as result of CDK’s injuries sus tain ed in 1992, and JLK’s propensityto engage in simulated sexual acts and m asturbate in private and public venues. Upon hear ing thi s and other evi dence, the jury returned a verdict against the Keys terminating thei r parental rights viz the children. Issue One - Sufficiency of the Evidence The Keys initially chall enge both the legal and factual suffi ciency of the evi dence supporti ng the jury’s verdict. W e overrul e the point fo r several r easons. First, though the two ap pella ntsdes crib e th e ap plica ble s tan dar d of rev iew , th eir analysis or application of the standard consists of the following: In this case, acts of both Respondents too re m otein t im e wereallow ed in and w ere high ly pr

ej udic ial. There is little doubt that these kids are screwed up. The questio n is how did they get th at way? [sic] These chi ldren ha ve been in CPS care for m any years w here they were stuck in fam ilies as ‘fifth whee ls’ for a m ajor part of their life. The influence of other foster children and other ‘distur bed’ chil dren they have been around has not been good for the ir physical or emot ional well being and has caused som e of th e p ro bl ems these children have encountered. How the for ego ing a rgu m ent

evin cesa want

of l ega lly o r fa ctu ally

sufficient evidence goes unexplained. Nor does the sum mary explain how n othing in the r ather extensive evidentiary

record bef

ore us sup por

ts t he f act-fin der’s dec ision . I nstead , th e Keysm ere ly4

conclude that their acts were too rem ote in time, that t he children are “screwed up,” and thatthe CPS and others are respo nsibl e for the condi tion of CDK, JLK, and BJK . T his does no t satisfy the requirem ent of Rule 38.1(h) of the Tex as Rules of Appellate Procedure. That rule not only requires an appellant to cite to pertinentlegal authority and the record, T EX . R. A PP . P ROC
. 38.1(h), but al so provi des the r eviewing court w ith substantive analysis of his argumen t. See Bull ard v. State , 8 91 S.W.2 d 1 4, 15 (T ex. App.–Beaum ont1994, no pet.)(discussing the rule as app lied to a con stitutiona l issue). Because the Keys do not do so here, since they do not ex plain how the supposed rem ote
a cts, conduct of the C PS or influence of other children som ehow rendered th e ver dic t lega llyor factually insufficient, see Raw Hi de Oil & Gas, Inc. v. Maxu

s Ex ploration Co., 766 S.W.2d 264, 275-76 (Tex. App. – Am arillo 1988, wri t denied) (describing the tests app licab le to claims of legal and factual insufficienc y) , o r wh y nothing in the record supports the verdict, they waived the point. Admis sion of Abel Asses

sment Next, the Keys as sert th at the t rial court err ed in adm itting purpo rted ex pert evidence proffered by Ri chard Mack (Mack). The lat ter spoke about the adm inistration of a t es t kn own as the Abel Ass essm ent to Marshall Keys. The test purportedly evaluated Marshall Keys’ propens ity for sexual deviancy and t he risk he posed to his children. According to Mack, Marshall’s “highest sex ual interest is in adolescent ma les and the lowest . . . is in adu lt females .

. . .” Such interests were “the opposite tha t [they]1 TheSta te offered noevide nce ind icat ing tha t Ma rs ha ll Ke ysever sexua lly a ssau lted a male child, adolescent or adult. He had, howev er, sexuall y assaulted his minor daughter i n 1977.

2 Mack def ined an adolescent as a minor bet ween the ages of 13 to 17.
3 His words w

ere: “[n]ow, if I’m not abl e to say that’s pedophilic, I won’t say its pedophilic, but i t’s not a s ituationa l offender . . . [t]ho se a re primary sexual intere sts .” 5 sh ould be for a standard heterosexual m ale-female relationship,” continued Mack. 1 Moreover, a child twelve years of age, accord ing to Mack, would be at a “si gnifi cant” risk “because [Marshall’s] sexual interest for that age, nine to thirteen, is only slightly less than the adolescent m ale.” 2 So too did Mac k state that Marshall had an “ex tre m ely h igh” m ale interest “along all age categoriesuntil you ge t to adu lthood” a n d a “very strong sexual interest . . . to m ale children . . . and to fem ale children as well but under th e a ge of adolescence, pre-school or under thirteen . . . .” When asked, Mack further opined that 1) Marshall “has a problem with deviant sexual interest,” 2) he ( i.e. Mac k) “would be ve ry concerned about this level of deviant sexual interest ,” 3) to “put him [Marshall] in a situation where he has access to children and where he ’s not being treated . . . is to put himin a risky situation,” and 4) “to have acces sibili ty to kids and that high sexual devi ance is to m ake everyone unsafe .” Final ly, based upon his interpretation of the Abel Assessm ent, the w itness concluded by all but labeling Marshall a pedophile. 3 The Keys secured a timely running or continui ng object ion to the foregoing testimony. Their complaint was founded upon Rule 702 of the Tex as Rules of Evidence. Am ong other thin gs, they believed that Mack ’s purported ex pert testim onyw as u nre liable when tested again st the standard re surrected by E.I. du Pont de Nemours & Co. v.6

Robinson , 9 23 S.W .2 d 5 49 (T ex. 1995) and that the trial court’s adm ission of same was reversible error. W e agree and sustain the content ion. Applica ble Author

ity To be adm issible, expert testim ony m ust be 1) uttered by a qualified individual, 2) relevant, and 3) based upon a reliable fo unda tion. Helena Chem. Co . v. Wilk ins , 47 S.W.3d 486, 499 (Tex. 2001). Though the question of w hether these elem ents have been
e stablished lies within the trial court’s discretion, id ., the party tendering the evidenc e bears the burden of establishing them. E.I. du Pont de Nemours & C o. v. Robi

nson , 923 S.W.2d at 557. Additio nall y, and concerni ng the element of rel iabi lity, we havebeen told that the app licab le test is flexible but nonetheless focuses “solely on the underlying principles and methodology, n ot on the co nclusions t hey gen erate.” Id. at 557. This obligates the proponentof the evidence to prove t hat the specific technique or methodology from which the expert derives his opinions “has been subjec ted to a rate of

error ana lysis.” Id. at 559. In other words, the methodology mus t hav e been subj ected to testing to ass ess its legitimacy. So too mu st the pro pon ent show tha t th e th eor

y at iss ue h as b een gen era lly accepted by m embers

of the relevant

scientific comm unity. Id. Moreover, it is not enough for the purported ex pert to me rely state that the m eth odo logy hasbee n accep ted and is reliable. Id. at 559-60. Rather, th e proponent must ill ustrate same through substanti ve evidence, id. , s ufficient to allow the trial court to “evaluate the m ethods, analysis, and principles relied upon in reaching the opinion.” Gammill v. Jack Williams Chevrolet, Inc. , 972 S.W.2d 713, 72 5- 26 (T ex. 1998), quoti ng , Watkins v. Telsmith, Inc. , 121 F.3d 984, 9914 Macktest if ie d th at h e di d not adm in ist er t he t est to M ars ha ll Ke ys . No r co uld he s ay w ith certa inty

that the results which he revi ewed w ere actually those of Keys, though he did indi cate that the num ber assigned to the Keys test comported with the result s he analyzed. 7 (5th Cir. 1997). And, w hile a myriad of factors hav e b een m ent ione d asper tine nt in assessing reliabil ity, see, E.I. du Pont de Memours & Co. v. Robi

nson , 923 S.W.2d at 557 (listing si x a nd stating t hat the list is not exclusive), com mon sense dem ands that the evidence proffered to show reliabil ity include the actua l methods and principles being debated. Indeed , a trial cou rtcan hardly determ ine if a supposed theory, m ethodology or prin cipleis reliable i f evidence of the p articular the ory , m eth od, or p rinc iple is w ithh eld fromit. And , therein lies the prob lem at bar. In describing the Abel Assessm ent, Mack m entions two components. They consi st of a supposed “obj ective” aspect involving reaction time to sexually laced pictures and a subjective aspect invol ving sel f-analysi s through the completi on of a questio nnaire. Also discussed is what the p erson adm inistering the test does with it once it is completed by the subject ; the raw data is sent to Dr. A bel in Atlanta, Georgia. 4 Mack th en describes what he does with the information returned b y Dr. Abel. Yet, the sum and substance of evidence describing what Dr. A bel does to the data he receives consists of M ack ’s testifying that the doctor app lies some “formulas” to it and plots the results on g rap hs. This is of p art icula r import because it is the sumof Abel’s w ork which is then interpreted by indiv idua ls such as M ack to derive the su bject’s sexual d evia ncy and dan ger

ous nes s v ia the “danger registry” and like concepts. In short, of w hat the form ulas applied by Abel consist, how they were derived, and whether they have ever been subjec ted to analysis or testing goes utterly unm entioned by5 J. K. R OWLING , H AR RY P OTTER A ND THE S ORCERER ’ S S TONE (1998 ).

6 W IL LI AM S HAKESPEARE , M ACBETH , act 4, sc. 1.
7 Indeed, that those who developed the A bel Ass e s s me n t b e li e ve adult heterosexual mal es who s how sexual interest in adol escent fem ales and adult hom osexual m ales who express interest in adolescent mal es arenormal or non-deviant (as Mack so testifi ed) makes the ex planation of their m ethodology and form ulas all the more important. 8 Mack or anyone else. For all we know , they and their com ponents cou ld be
m ath em atically

based, founded upon indisputable em pirical research, or s im ply them agic of young Harry Pot

ters’ m ixing potions at the Hogw arts School of W itchcraft an d W izardry. 5 Again, Mack sim ply interpreted t he “information” returned from Atlanta. How

that und enia bly

pivotal “information” was contrived or applied by those in Atlant a remains a mystery, given the record before us and the trial court. Nor did the CPS proff

er any ev idence explaini ng the “danger registry” and li ke concepts utilized by Mack to conclude that Marshall and the youths around himwere at “significant” r isk. W ha t they were , how they w ere cont rived, and whe ther the y were subjected to critical analysis are also subjects com pletely left to the imagination of the court. Maybe they

too have indisputable scien tific ba sis . O r, m ayb e th ey s im ply
accom panied the prophesies of Macbeth’ s dem ise floating from thecauldron of the three blind witches. 6 W e do not know . Nor was the trial court provided with evidence allowing it to make that determ ination. 7 Sim ply put, the gatekeeper at bar could not “evaluatethe m ethods, analysis, and principles relied upon [by Mack] in reaching [his] opinion” about Mar shall Keys without evidence of the various crucial me thods and principles und erly ing t hat opin ion a nd t heir8 In so holding, we do not categorizethe

Abe l As se ss ment

as ina dmis sib le ju nk scien ce. We simpl y conclude th at

th e C PS fai le d to s at isfy Robinson an d its pro ge ny in off ering testim ony about how it ill ustrated that Marshall posed a “signif icant” ri sk of sexuall y abusing his children
. 9 accuracy. And, by adm itting the alleged expert evidence w ithout that evidence, the trial court abused its discretion. 8 Having fo un d e rr or , we n ext determ ine its harm, if any. And, in doing so, we cannot denythe emotional effect evi dence of pedophi lic beh avior has on rational human beings. Nor can we denythe e mot ive effect upon a sane j ury of evidence illustrating that the children of the supposed pedo phil e were at “signi ficant” ri sk. And, it was this the me of ped oph ilia and risk t o children t hat com prised a maj or basis for the relief sought by the CPS. That t his is undoubtedly true is exem plified by the agencies opening and closing argument

. During the form er, it told the jurors about how the A bel Assessm ent woul d establi sh Ma rsh all tobe s ex ually dev iant w hile in itssum m atio n it urged how it proved he posed “asignificant risk of s exu al abuse to thesethree k ids . . . .” And, that the evidence in question had im pact up on Rose Ke ys is s im ilarly unquestionable. Adm ittedl y, Mack sa id noth ing about her having undergone Abel Assessm ent. Ne ver

the less , th e CP S u sed theass ess m ent of M ars hall to fac ilitate th eir argument

that: [w]hat we show

ed you and what we told you that we would show you is these children arein danger. They are in dang er of sexual abuse by Mr. Keys and Mrs. Keys, one, b ecaus e he is a perpetrator that is untreated and d enies doing anything wrong, and she because she doesn’t believe he did anything wrong and she never took an y steps to protect her ki ds fr om him and wouldn’t today

.10

(Em pha sis added). Simply put, the cont ention tha t Rose is b ad because she w ould not t oday pro tec

t he r ch ildre n fr

omthesexual p red atio ns of M ars hall w ould have nobas is without evidence of

Marshall’s present and future sex ual deviancy. And, it was the Abel Assessm ent, as dis cussed by Mack, whic h provi ded the evid ence. At the very leas t, j urors cou ld rea sona bl y sur mise fr om the te sti mony of Ma ck th at be caus e Ma rshal l posed a significant risk

of s ex ually

preying on his children and Rose w ould do nothing about it, she too 1) kno wi ngly placed or knowingly allowed the ch ildren to remain in conditions or surroundings which endangered the ir physical or emotional well-being or 2) e nga ged in conduct or knowingly pl aced the ch ildren w ith person s who engaged in conduct which endangered their physical or emot ional well-being. In sum , reasonable m inds cou ld debate wh ether a jury would have voted to terminatethe parental rights of the Keys had the alleged expert testim ony at issue been excluded. Yet, w

e have no doubt

that using the Ab el Asse ssm ent to cate gor ize M ars hall
as all bu t a pe do ph il e wh o p os ed “s ig ni fi ca nt ” r is k to hi s ch il dr en (a ri sk h is wi f e supp o sed lywould no t prote ct them agai nst) as sured the out come desir ed by th e CPS. SeeAcademy Corp. v. Interi or Bui ldout & Turnkey C

onstr., Inc. , 21 S.W.3d 732, 737-38 (T ex. App.--Houston [1 4th Dist.] 2000, no pet.) (holding thatan a ppe llant suf fer s re ver sible harm when the j udg m ent tur ns o n im pro per ly ad m itte d ev iden ce) . S o, t he in adm iss ible evid ence be for

e uspro bab ly c aus ed t he r end ition of t he j udg m ent at b ar a nd r

esu lted in the Keys suffe ring harm. See T EX . R. A PP . P ROC
. 44.1(a)(1) (stating that e rror warrants reversal when it probably caused t he rendition of an improper j udgme nt).11

Having sus ta in ed th e Ke ys’ po in t r eg ar di ng Mac k’s exp er t te st imo ny , we need not address whether th e trial court erred in admitting evidence of M arshall’s 1977 conviction. Instead, we reverse the j udgme nt and rem and the cause for furthe r proceedings.

Brian Quinn Justice
Publish.