Casas v. Adriano, No. 13-06-00373-CV (Tex.App.- Corpus Christi, July 5, 2007)(grant of grandparent
access affirmed)

After conducting a review of the legal and factual sufficiency of the evidence, we
cannot say that the trial court abused its discretion by finding that the Adrianos
showed by a preponderance of the evidence that denial of their possession of and
access to F.A. would significantly impair the child's physical health or emotional well-
being. See Derzapf, 219 S.W.3d at 333. Issue one is overruled.

NUMBER 13-06-373-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

RAMONA CASAS AND

CLAUDETTE DENIZ CASAS, Appellants,

v.

FELIPE ADRIANO AND

MARIA ANGELA ADRIANO, Appellees.

On appeal from the 92nd District Court

of Hidalgo County, Texas.

MEMORANDUM OPINION

Before Chief Justice Valdez and Justices Benavides and Vela

Memorandum Opinion by Justice Vela

This is an appeal from an order granting paternal grandparents, Felipe and Maria Adriano (the Adrianos),
possession and access to their minor grandchild, F.A. By three issues, Ramona Casas, F.A.'s maternal
grandparent, and Claudette Casas, F.A.'s biological mother (collectively "the Casases"), complain that the
trial court abused its discretion by granting the Adrianos access to and possession of F.A., by not ordering
statutorily required warnings in its order granting access, and in excluding the testimony of a non-disclosed
witness. We affirm.

I. Background

F.A., the child subject of this suit, was born December 16, 2000. In 2002, his biological parents, Felipe
Adriano Jr. and Claudette Casas, were arrested on charges of physical abuse of F.A.'s five month old sister,
who sustained severe physical injuries and later died as a result of those injuries. According to the record, F.
A.'s parents were unable to explain the injuries and were arrested for the infant's death. F.A.'s father was
subsequently found guilty of the infant's murder and was sentenced to 25 years in prison. F.A.'s mother,
Claudette, who was also incarcerated for a short period of time, pled guilty to the offense of injury to a child,
and received a community supervision sentence.

In 2003, the trial court terminated the parental rights between F.A. and his father as a result of his father's
conviction for the murder of F.A.'s infant sister. Several months later, the court entered a final order in a suit
affecting the parent-child relationship. In that order, the court found that "appointment of a parent or both
parents as managing conservator would not be in the best interest of [F.A] because the appointment would
significantly impair the child's physical health or emotional development." Instead, the court appointed F.A.'s
maternal grandmother, Ramona Casas (Claudette Casas' biological mother), as permanent managing
conservator of F.A, and appointed F.A.'s mother, Claudette Casas, as possessory conservator of the child,
with rights of access to and possession of F.A. At that time, the trial court did not award visitation to any "non-
parties," which included F.A.'s paternal grandparents, the Adrianos.

In February 2005, the Adrianos filed an original petition for grandparent access to F.A. In September 2005,
the trial court signed an "Order Granting Petitioners' Request for Temporary Grandparent Access, Setting
Status Conference and Setting of Final Hearing." In that order, the Adrianos were permitted to visit F.A. one
hour per week, from 4:00 p.m. to 5:00 p.m., at the offices of Solis & Associates in Edinburg. The order also
required the Adrianos to pay Solis & Associates two-hundred fifty dollars before any visitation period.

On March 28, 2006, the trial court conducted a bench trial on the issue of the Adrianos' possession of and
access to F.A. After receiving evidence and hearing testimony, the trial court granted the Adrianos' petition
for possession of and access to F.A., and specifically found that "denial of possession and access to the
paternal grandparents (the Adrianos) would significantly impair the child's physical health or emotional well-
being." The order stated that the Adrianos "are granted the child as follows:"

First, Third and Fifth Saturdays of each month from 10:00 to 6:00 p.m. The paternal grandparents shall pick
up the child at the residence of Ramona Casas at the commencement of the visitation period, and the child
shall be returned to the residence of Ramona Casas at the end of the visitation period. It is further ordered,
that any and all paternal grandparent possession/access shall terminate upon the release of Felipe Adriano,
Jr. from prison. (Emphasis added)

It is from this order that Ramona and Claudette Casas appeal.

II. Absence of Findings of Fact and Conclusions of Law

Before discussing the issues raised, we point out that findings of fact and conclusions of law were neither
requested nor filed following this bench trial. In such situations, the judgment of the trial court implies all
necessary findings to support it, provided the proposition is raised in the pleadings, supported by evidence,
and the trial judge's theory is consistent with the evidence and the applicable law. Schoeffler v. Denton, 813
S.W.2d 742, 744 (Tex. App.– Houston [14th Dist.] 1991, no writ); Franklin v. Donoho, 774 S.W.2d 308, 311
(Tex. App.–Austin 1989, no writ). When, as in this case, a reporter's record is part of the record, the legal
and factual sufficiency of the implied findings may be challenged on appeal in the same manner as jury
findings or a trial court's findings of fact. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989); Wade v.
Comm'n for Lawyer Discipline, 961 S.W.2d 366, 374 (Tex. App.–Houston, [1st Dist.] 1997, no pet.). When
the implied findings of fact are supported by the evidence, the appellate court must uphold the judgment on
any theory of law applicable to the case. Giangrosso v. Crosley, 840 S.W.2d 765, 769 (Tex. App.–Houston
[1st Dist.] 1992, no writ).

III. Analysis

By their first issue, the Casases complain that the trial court abused its discretion by granting the Adrianos
possession of and access to F.A. because the best interest of the child demands that the Adrianos comply
with the requirements of the Texas Grandparent Statute. Tex. Fam. Code Ann. § 153.433 (Vernon Supp.
2006). The Casases further argue that the testimony presented at trial was legally insufficient to support the
trial court's ruling, and that the ruling granting possession and access was so against the great weight and
preponderance of the evidence that the trial court's only finding "fails to be factually sufficient."

IV. Standard of Review

The trial court's decision in a suit for grandparent access and possession is reviewed for abuse of discretion.
See In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007). A trial court abuses its discretion when it acts in an
arbitrary and unreasonable manner, or when it acts without reference to any guiding principles. Scoggins v.
Trevino, 200 S.W.3d 832, 836 (Tex. App.–Corpus Christi 2006, no pet.). Review of the legal and factual
sufficiency of the evidence in a possession or access case is subsumed into the review for abuse of
discretion. In re Marriage of Hale, 975 S.W.2d 694, 697 (Tex. App.–Texarkana 1998, no pet.); Doyle v.
Doyle, 955 S.W.2d 478, 479 (Tex. App.–Austin 1997, no pet). Thus, legal and factual insufficiency are not
independent grounds of error, but are relevant factors in assessing whether the trial court abused its
discretion. Doyle, 955 S.W.2d at 479; Scoggins, 200 S.W.3d at 836. Where sufficiency review overlaps with
the abuse of discretion standard, the reviewing court engages in a two-pronged inquiry. Sandone v. Miller-
Sandone, 116 S.W.3d 204, 206 (Tex. App.–El Paso 2003, no pet.) First, the court determines whether the
trial court had sufficient information upon which to exercise its discretion. Id. Second, the appellate court
evaluates whether the trial court erred in applying its discretion. Id.

V. Governing Law

To obtain access and possession in a grandparent access case, a petitioner must prove, by a
preponderance of the evidence, that:

1. At least one of the child's biological or adoptive parents has not had rights terminated.

2. The child's physical health or emotional well-being would be significantly impaired if the grandparents'
access or possession were denied.

3. The grandparent is the parent of the child's parent.

4. Any of the following is true:

(1) The child's parent has been incarcerated for at least three months before the petition was filed.

(2) The child's parent has been judicially declared incompetent.

(3) The child's parent is dead.

(4) The child's parent does not have actual or court-ordered possession of or access to the child.

Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2006).

The Casases do not dispute that the Adrianos meet all but one of the statutory requirements to bring a
grandparent access case. They focus only on the requirement of Section 153.433(2), which states that the
trial court must find that the child's physical health or emotional well-being would be significantly impaired if
the grandparent's access or possession were denied. The Casases contend that the trial court abused its
discretion in finding, by a preponderance of the evidence, that denying the Adrianos possession and access
to F.A. would significantly impair F.A.'s physical health or emotional well-being. (1) Grandmother Casas, the
appointed primary managing conservator, acknowledges that she does not enjoy the presumption that
Mother Casas does when it comes to the applicability of the grandparent access statute. However, she
argues that because she is the managing conservator of F.A., she has the rights and duties specified in the
Texas Family Code, including the duty of "care, control, protection, and reasonable discipline of the child,"
along with "the duty to provide the child with clothing, food, shelter, education, and medical, psychological,
and dental care." See Tex. Fam. Code. Ann. § 153.371(2)-(3) (Vernon 2006). She argues that in order to
fulfill her responsibility of ensuring proper physical health and emotional well-being of the child, she must
also ensure that the Adrianos meet the requirements set forth in the grandparent access statute–that the
denial of access to or possession of F.A. to the Adrianos would significantly impair the child's physical health
or emotional well-being. Tex. Fam. Code Ann. § 153.433(2).

V. The Evidence

At trial, Mr. Adriano testified that F.A. is "part of my blood, my family, and we really love him because we
helped raise him since he was little." He stated that F.A. lived with the Adrianos for nearly a year, and that he
and his wife took care of F.A. He further stated that they (the Adrianos) "don't want to lose family contact with
him," and "all the family loves him, not just us." He testified that when he and his wife visited F.A. at the firm
of Solis & Associates, F.A. " . . . didn't want us to leave. He didn't want to be alone. In fact, he had to be held
back by Ms. Casas because he wanted to stay with us. He wanted--he wanted to go in the truck with me . . . .
He would hug us. He would kiss us. And he even called me dad, and he calls her (Mrs. Adriano) mom."

In later testimony, Mr. Adriano stated that F.A. was "well off" when he was living with the Adrianos. Further
testimony elicited from Mr. Adriano revealed the following: "The child never had any problems with us . . . .
He was 100 percent well regarding his health and everything, just full of life. And the last time I saw him, he
was more, like, crestfallen and kind of sickly . . . . The last time I saw him I saw signs that he was being
affected because he was more used to being with my side of the family . . . . So I think that he would get
better if he got the chance to see us, to see me." Mr. Adriano testified that he had previously complained to
child protective services that when the Casases delivered F.A. to the Adrianos during any visitation period, F.
A. was "dirty" and the milk in his bottle was "rotten."

Beatrice Salinas, the Adrianos' daughter, testified that F.A. had numerous cousins who lived close to the
Adrianos, that F.A. was close to his cousins, and that the Adrianos have half an acre of land where all of the
children played together. She further testified that F.A. was "a part of their life," that F.A. "loves them (the
Adriano grandparents) so much, he calls them mom and dad." She concluded her testimony by pointing out
that "[H]e's part of our life. He needs to know that he has more family besides them that love him and are
going to care for him, and that we miss him. He needs to know that we're out there for him."

The trial court made the following observations in making its ruling:

I think it would be more harmful to this–let's say that, this child is five years old right now, okay, and let's say
the thought is, let's wait four, five years before these paternal grandparents have any access to this
particular child. Ok. You've got to remember that this particular child is five, by the time he's ten, okay, it may
be more harmful in order for that particular child to start to develop a relationship with the paternal
grandparents at the age of ten than it is at the age of five . . . . But you know, you need to focus on truly
what's in the best interest of this child. And I don't know whether cutting the paternal grandparents out of this
particular child's life is in fact the best interest of the child . . . that's a decision that is so contrary to what I
truly, truly believe would be beneficial to the child."

It is clear from the trial court's comments that its focus was the best interest of the child, pursuant to its duty
under the Texas Family Code. Tex. Fam. Code Ann. § 153.002 (Vernon 2002) ("The best interest of the
child shall always be the primary consideration of the court in determining the issues of conservatorship and
possession of and access to the child."). We note that the trial court did not give the Adrianos unlimited or
even overnight visitation with F.A.; it only allowed the Adrianos to see F.A. on the first, third, and fifth
Saturdays of each month for an eight hour period. Further, the trial court specifically interlineated a
safeguard into the order that provides that "any and all paternal grandparent possession/access shall
terminate upon the release of Felipe Adriano, Jr. from prison."

From the evidence adduced, the trial court could have reasonably concluded that F.A.'s health and
emotional well-being would be significantly impaired by denial of access. F.A. had previously resided with the
Adrianos and was close enough to them that he considered them his "mom" and "dad." It appears that the
trial court considered this close prior relationship in making a decision regarding access. It was within the
court's realm of discretion to infer that a break in a close familial relationship could seriously affect F.A.'s
emotional well-being. Further, the trial court could have decided that the deprivation of love, care, and
affection from one-half of the child's family would cause significant impairment to the child's emotional well-
being.

After conducting a review of the legal and factual sufficiency of the evidence, we cannot say that the trial
court abused its discretion by finding that the Adrianos showed by a preponderance of the evidence that
denial of their possession of and access to F.A. would significantly impair the child's physical health or
emotional well-being. See Derzapf, 219 S.W.3d at 333. Issue one is overruled.

By their second issue, the Casases contend that the trial court abused its discretion by failing to order
safeguards, including statutorily required warnings, in the final order granting possession of F.A. The record
reflects, however, that these proposed statutory "safeguards" were not requested of the trial court. The
Casases have not preserved this point for appellate review. Tex. R. App. P. 33.1. Issue two is overruled.

By their third issue, the Casases assert that the trial court abused its discretion by excluding the testimony of
F.A.'s child psychologist, and therefore failed to consider the best interest of the child when entering its final
orders. The Casases concede that the psychologist in question, Dr. Mary Elizabeth De Ferreire, was not
disclosed as a testifying witness during the discovery process.

A trial court's decision to exclude testimony from a witness not previously disclosed during discovery can only
be overturned upon a finding of an abuse of discretion. Mentis v. Barnard, 870 S.W.2d 14, 16 (Tex. 1994).
After a review of the record in this case, we find no abuse of discretion by the trial court not permitting the
non-disclosed witness to testify. Appellants' third issue is overruled.

The trial court's judgment is affirmed.

ROSE VELA

Justice

Memorandum Opinion delivered and

filed this 5th day of July, 2007.

1.The premier case governing grandparent access is Troxel v. Granville, 530 U.S. 57 (2000). Troxel held
that a parent has a fundamental right to decide who has access to a child, assuming the parent is "fit." See
id. at 66. The Troxel Court described a fit parent as one who "adequately cares" for his or her children. Id. at
68. In this case, Troxel does not apply because neither parent is presumed "fit," and this case is essentially a
dispute between both maternal and paternal biological grandparents. We reach this conclusion based on the
evidence in the record that F.A.'s father was convicted of murder, and the trial court specifically found that
"appointment of a parent or both parents as managing conservator would not be in the best interest of [F.A.]
because the appointment would significantly impair the child's physical health or emotional development."