In re J.O. No. 04-07-00752-CV (Tex.App.- San Antonio, May 14, 2008, no pet.)(parental presumption)
AFFIRMED: Opinion by Justice Angelini
Before Chief Justice Stone, Justices Angelini and Hilbig
In the Interest of J.O., a Child
Appeal from 225th District Court of Bexar County
IN THE INTEREST OF J.O., a Child
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.
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
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.
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.
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
The trial court's judgment is affirmed.
Karen Angelini, Justice
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