in the Interest of J.O., a Child

• Court: Court of Appeals of Texas
• Decided: May 14, 2008
• Docket: 04-07-00752-CV
• Status: Published

Opinion

MEMORANDUM OPINION

No. 04-07-00752-CV

IN THE INTEREST OF J.O., a Child

From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2006-CI-13203 Honorable Andy Mireles, Judge Presiding

Opinion by: Karen Angelini, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Steven C. Hilbig, Justice

Delivered and Filed: May 14, 2008

AFFIRMED

Appellants, who are J.O.'s aunt and uncle, appeal the trial court's order appointing J.O.'s mother as her sole managing conservator and denying the appellants' request for access. Appellants contend the trial court erred by: (1) striking a request for a supplemental record and denying their offer of proof; (2) applying the parental presumption; (3) excluding evidence of a pattern of abuse and neglect by J.O.'s mother; and (4) failing to grant appellants access to J.O. We affirm the trial court's judgment.

Background

In August of 2006, appellants filed a petition seeking to be appointed as J.O.'s managing conservators. J.O. was approximately eighteen months old when the petition was filed. In the affidavit supporting the petition, the appellants state that they cared for J.O. for weeks at a time over the course of her life and, more recently, had exclusive care and control over J.O. as part of a safety plan implemented by Texas Department of Family and Protective Services ("Department").

In September of 2006, the trial court entered temporary orders appointing appellants as managing conservators and J.O.'s mother as possessory conservator. After a bench trial was held on July 25, 2007, the trial court entered written findings of fact and conclusions of law. The trial court found that during the pendency of the underlying case, J.O.'s mother had: (1) continuously cared for her other child, J.O.'s younger half-sister; (2) maintained appropriate housing and employment; (3) maintained visits with J.O.; (4) fostered a relationship between J.O. and her half-sister; and (5) acted as an appropriate parent. The trial court also found that no reports of abuse or neglect had been brought against J.O.'s mother during the pendency of the case. The trial court concluded that J.O.'s mother should be appointed managing conservator, and the appellants' requests should be denied.

Exclusion of Evidence/Offer of Proof

In their first two issues, the appellants challenge the trial court's order striking their request for a supplemental record and their post-trial offer of proof. A panel of this court previously denied appellants' Motion to Direct Clerk to File Motion for Offer of Proof and Notice of Filing of Sworn Statements as Part of the Clerk's Record.

In its order, the trial court noted that a final order was rendered in the underlying lawsuit on July 25, 2007, and a final judgment was signed on August 31, 2007. On October 4, 2007, the appellants filed the following post-trial notices: (1) Notice of Filing of Statements under Oath; (2) First Amended Notice of Filing of Statements Under Oath; (3) Designation of Clerk's Record; and (4) First Supplemental Designation of Clerk's Record. The trial court found that the statements and exhibits attached to the First Amended Notice of Filing of Statements Under Oath were generated post-trial and were not considered by the trial court. Similarly, the appellants' offer of proof also was filed after the conclusion of the trial.

The burden is on the complaining party to present a sufficient record to the appellate court to show error requiring reversal. Estate of Veale v. Teledyne Indus., Inc., 899 S.W.2d 239, 242 (Tex. App.--Houston [14th Dist.] 1995, writ denied). To preserve the error of a trial judge in excluding evidence, a party must: (1) attempt during the evidentiary portion of the trial to introduce the evidence; (2) if an objection is lodged, specify the purpose for which it is offered and give the trial judge reasons why the evidence is admissible; (3) obtain a ruling from the court; and (4) if the judge rules the evidence inadmissible, make a record, either by offer or proof or through a formal bill of exceptions, of the precise evidence the party desires admitted. Id.; see also In re Estate of Miller, 243 S.W.3d 831, 837 (Tex. App.--Dallas 2008, no pet.). An offer or proof must be: (1) made before the court, the court reporter, and opposing counsel, but outside the presence of the jury; and (2) preserved in the reporter's record. In re Estate of Miller, 243 S.W.3d at 837. When there is no offer or proof made before the trial court, the party must introduce the excluded testimony into the record by a formal bill of exceptions in compliance with rule 33.2 of the Texas Rules of Appellate Procedure. Id. Because the appellants' belated attempts to supplement the record did not comply with the requirements of either an offer or proof or a formal bill of exceptions, the trial court did not err in striking the designation of record, the sworn statements compiled post-trial, and the post-trial offer of proof. Appellants' first and second issues are overruled.

In their fourth issue, appellants complain that the trial court erred in excluding evidence of a history or pattern of abuse or neglect by J.O.'s mother. Although appellants cite to several discussions in the record in which the trial court sustained objections to certain evidence or stated limitations with regard to the presentation of evidence, the record does not reflect that the appellants took the necessary steps to preserve error as to the exclusion of evidence. See Estate of Veale, 899 S.W.2d at 242 (listing steps necessary for preservation). In particular, for the reasons previously noted, appellants failed to properly make a record of the precise evidence the appellants desired to have admitted. Id. Accordingly, appellants failed to preserve their fourth issue for our review, and it is overruled.

Parental Presumption

In their third issue, the appellants contend that the trial court erred in applying the parental presumption. The appellants argue that the presumption was rebutted pursuant to section 153.373 of the Texas Family Code because J.O.'s mother had voluntarily relinquished actual care, control and possession of J.O. for one year or more, a portion of which was within the ninety days preceding the filing of the suit.

Section 153.373 of the Texas Family Code permits the presumption that a parent should be appointed as managing conservator of a child to be rebutted if the trial court finds that: (1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent for a year or more, a portion of which was within 90 days preceding the date of intervention; and (2) appointment of the nonparent as managing conservator is in the best interest of the child. Tex. Fam. Code Ann. § 153.373 (Vernon 2002). In their brief, the appellants focus exclusively on the first finding the trial court must make in order to rebut the parental presumption, i.e., voluntary relinquishment for a year. The appellants fail to brief or even mention the second required finding, i.e., appointment of the nonparent as managing conservator is in the best interest of the child.

The evidence in this case established that J.O. was in appellants' care at the time they filed the underlying lawsuit based on the Department's safety plan. Even if we were to assume, however, that the evidence supported a finding of voluntary relinquishment, the trial court could have determined from the evidence presented that the appointment of appellants as managing conservators was not in J.O.'s best interest. James Timmens, the social worker appointed by the trial court to conduct a social study, testified that J.O.'s mother should be appointed managing conservator. Lisa Griffin, a case manager at Fairweather Family Lodge, where J.O.'s mother was residing with J.O.'s half-sister, testified that the interactions between J.O., her mother, and her half-sister have been positive, and she had no concerns about J.O. being returned to her mother. Alma Lopez, a supervisor for the Department who had recommended that J.O. temporarily be removed from the care of her mother, testified that the Department had recommended reunification of J.O. with her mother since September of 2006. Lopez testified that she believed it was in J.O.'s best interest to be returned to her mother. Finally, Crista Branch, J.O.'s attorney ad litem, recommended that J.O. be returned to her mother. In view of the evidence presented, the trial court did not err in finding the parental presumption had not been rebutted, and appellants' third issue is overruled.

Access

In their final issue, appellants assert the trial court abused its discretion in not granting them access to J.O. The best interest of the child is always the primary consideration in determining issues of conservatorship and possession. Garza v. Garza, 217 S.W.3d 538, 552 (Tex. App.--San Antonio 2006, no pet.). With regard to issues of custody, control, possession, and visitation, we give the trial court wide latitude and will reverse the trial court's order only if it appears from the record as a whole that the trial court abused its discretion. Id.

In this case, the trial court noted that it had no statutory authority to appoint the appellants as possessory conservators since it was appointing the mother as managing conservator and the father as possessory conservator. In addition, the trial court noted that it had done its best to get the parties to cooperate with each other in the best interest of J.O. Furthermore, the trial court observed that the communication between the parties had completely broken down, even with regard to J.O.'s medical needs.

"[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000); see also In re Pensom, 126 S.W.3d 251, 254 (Tex. App.--San Antonio 2003, orig. proceeding). The Texas Legislature has recognized this fundamental right by creating a presumption in favor of the parents being appointed as both managing conservator and possessory conservator. Tex. Fam. Code Ann. §§ 153.131, 153.191 (Vernon 2002). Encompassed within this well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate. In re Pensom, 126 S.W.3d at 254. Although the Legislature has provided a means by which a grandparent is permitted to request access to a child, no similar provision permits the aunt of a child to request such access. See Tex. Fam. Code Ann. § 153.432 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 255 (noting Legislature's intent to limit a court's jurisdiction over non-parental intrusion by allowing only grandparents to petition for access). Even in a case in which a grandparent requests access, access is only available where "the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 256 (noting trial court must accord significant weight to a fit parent's decision about the third parties with whom his or her child should associate). Although appellants assert that the Family Code contains no provision limiting the right of an aunt or uncle to seek access, appellants fail to cite any authority that would permit a trial court to grant such access given the fundamental right J.O.'s mother had to determine with whom J.O. should associate. See In re Pensom, 126 S.W.3d at 254. Based on the foregoing, the trial court did not err in denying appellants access. Appellants' fifth issue is overruled.

Conclusion

The trial court's judgment is affirmed.