## Facts

- Parents divorced in 1987; mother was appointed managing conservator of their daughter, A.V. (born 1984).
- In 1989, mother petitioned to terminate father’s parental rights, alleging sexual abuse and endangerment under former Texas Family Code § 15.02(1)(E).
- Father’s counsel arranged a psychological evaluation by Dr. Robert Powitzky, including a penile plethysmograph test; Powitzky concluded father showed no sexual or psychological pathology.
- Powitzky did not testify; his written report was placed in the CPS file and admitted into evidence as part of the CPS case file without objection.
- CPS relied on testimony from John Brogden, a CPS social-work supervisor, who reviewed the report and testified (over objection) that the plethysmograph pattern was commonly seen in incest offenders and was informative as to sexual deviancy.
- No medical or scientific expert testimony established the general reliability or acceptance of penile plethysmography as a diagnostic tool; the trial judge expressed concerns but allowed the testimony and denied a motion to strike.
- After a bench trial, the court found endangering conduct and that termination was in A.V.’s best interest, and terminated father’s parental rights.
- No findings of fact or conclusions of law were requested or filed.

## Issues

1. Whether clear and convincing evidence supported termination under former Texas Family Code § 15.02(1)(E) and the best-interest finding.
2. Whether admitting Brogden’s testimony interpreting a penile plethysmograph (which he did not administer) lacked a proper expert predicate and required reversal.
3. Whether the trial court abused its discretion by excluding testimony from a court-appointed psychologist not disclosed in father’s interrogatory answers.

## Decision

- The court of appeals affirmed the termination order.
- The evidence was legally sufficient, under the clear and convincing standard, to support both statutory endangerment and best interest.
- Any error in admitting Brogden’s plethysmograph-interpretation testimony was harmless because other evidence supported termination.
- Excluding the undisclosed court-appointed psychologist’s testimony was not an abuse of discretion.

## Legal Principles

- Termination of parental rights requires clear and convincing proof of (1) a statutory ground for termination and (2) that termination is in the child’s best interest.
- In a bench trial, the trial judge as factfinder determines witness credibility and the weight of conflicting evidence.
- An evidentiary error does not warrant reversal if, considering the entire record, the judgment is supported by sufficient independent evidence (harmless error).
- Trial courts have broad discretion to enforce discovery rules; failure to designate an expert witness in discovery may justify exclusion of that witness’s testimony.

## Conclusion

The court affirmed termination because the record supported endangerment and best interest by clear and convincing evidence; the challenged plethysmograph-related testimony did not control the outcome, and the trial court acted within its discretion in excluding an undisclosed expert witness.


In re A.V., 849 S.W.2d 393 (Tex. App.—Fort Worth 1993, no writ)