In re J.J.R., NUMBER 13-11-00502-CV
| Decision Date | 17 May 2012 |
| Docket Number | NUMBER 13-11-00502-CV |
| Parties | IN THE INTEREST OF J.J.R., A CHILD |
| Court | Texas Court of Appeals |
On appeal from the 275th District Court
of Hidalgo County, Texas.
MEMORANDUM OPINION1Before Chief Justice Valdez and Justices Rodriguez and Garza
This is a suit affecting a parent-child relationship. Following the death of J.J.R.'s mother, appellant Lionzo Ramirez, J.J.R.'s biological father, filed a petition to modify the parent-child relationship. Appellee Maria Concepcion Mendoza, J.J.R.'s maternal grandmother, intervened seeking joint managing conservatorship of the child. Following a bench trial, the district court entered its order awarding Mendoza joint managingconservatorship of J.J.R. with the right to designate J.J.R.'s primary residence. It awarded Ramirez joint managing conservatorship with the right of possession. By two issues, Ramirez contends that: (1) the trial court abused its discretion when it granted the relief requested in Mendoza's plea in intervention; and (2) the trial court abused its discretion in awarding Mendoza access to the child because she did not establish the "significant impairment" element of section 153.433 of the Texas Family Code. See TEX. FAM. CODE ANN. § 153.433 (West Supp. 2011) (). We affirm.
It is undisputed that in August 2004, through a negotiation conference, J.J.R.'s mother and Ramirez were appointed joint managing conservators of J.J.R.—the mother to have the exclusive right to designate J.J.R.'s primary residence and the father to have the right to possession. See id. § 233.001 -.029 (West 2008 & Supp. 2011) (setting out the child support review process to establish or enforce support obligations). On August 22, 2009, J.J.R.'s mother died. Ramirez alleges that he attempted, but failed, to gain possession of the child from Mendoza, J.J.R.'s maternal grandmother, with whom J.J.R. had been living, and the child remained with Mendoza without a court order.2
On November 23, 2009, Ramirez filed his petition for modification asking to be appointed "the sole managing conservator of the child," and "as the person who has the right to designate the primary residency of the child." Mendoza, who apparently had not participated in the original negotiation that established custody of the child, intervened in the proceeding on May 11, 2010. She requested to be appointed joint managingconservator with the right to designate the child's residency. At the final hearing, Ramirez challenged Mendoza's plea in intervention on the basis that it did not meet the requirements of section 153 of the family code because Mendoza attached no affidavit declaring that "denial of possession of or access to [J.J.R.] by [Mendoza] would significantly impair [J.J.R.'s] physical health or emotional well-being." Id. § 153.432(c) (West Supp. 2011). Ramirez informed the trial court that an affidavit did not exist. The trial court did not rule on this objection and took a brief recess to allow it to review law submitted by the parties.
Ramirez now acknowledges that following this recess, Mendoza's counsel provided the trial court with an unverified document entitled "INTERVENOR'S SUPPORTING AFFIDAVIT." A copy of that document appears in the appellate record.
After the document was presented to the trial court, Ramirez's counsel argued the following:
The trial court did not rule on this objection and, after hearing arguments of counsel, concluded Mendoza had standing to bring her claim.
The trial court then heard testimony and argument involving the conservatorship of J.J.R. and concluded that Ramirez and Mendoza would be joint managing conservatorsof J.J.R. It awarded designation-of-residency to Mendoza and standard visitation rights to Ramirez. This appeal followed.
By his first issue, Ramirez challenges Mendoza's intervention. Ramirez contends that Mendoza's petition did not meet the requirements of section 153 of the family code, first, because no affidavit was attached, and second, because the purported affidavit that was presented to the trial court was not verified. See id. In support of this contention, Ramirez repeats the above arguments made by his trial counsel. However, even assuming that Ramirez properly objected, we conclude that he did not preserve this issue for our review because the trial court did not rule on his objection. See TEX. R. APP. P. 33.1(a)(1)(A). We overrule Ramirez's first issue.
Ramirez asserts, by his second issue, that the trial court abused its discretion in its application of section 153.433 of the family code when it awarded conservatorship of J.J.R. to Mendoza.3 See TEX. FAM. CODE ANN. § 153.433. Ramirez contends that Mendoza did not establish by a preponderance of the evidence that a denial of her access to J.J.R. would "significantly impair" the child's physical health or emotional well-being. See id. § 153.433(a)(2). Ramirez argues that apart from Mendoza's belief that J.J.R.'s health or emotional well-being would be harmed if removed from her possession and if denied access to him, there is no evidence to establish a "significant impairment" exists.We disagree.
We review a trial court's decision to grant a grandparent's request for access or possession for an abuse of discretion. In re Chambless, 257 S.W.3d 698, 699 (Tex. 2008) (orig. proceeding) (per curiam); In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig. proceeding) (per curiam). In this case, "[a] trial court abuses its discretion if it grants [possession of a grandchild] when the grandparent has not proven that denying the grandparent access to the child would significantly impair the child's physical health or emotional well-being." In re B.G.D., 351 S.W.3d 131, 141 (Tex. App.—Fort Worth 2011, no pet.) (citing In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding) (per curiam) (quoting Derzapf, 219 S.W.3d at 333)).
In family law cases, the abuse of discretion standard of review overlaps with traditional sufficiency standards of review. In re B.M., 228 S.W.3d 462, 464 (Tex. App.—Dallas 2007, no pet.); 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). As a result, legal and factual insufficiency are not independent grounds of reversible error, but instead are factors relevant to our assessment of whether the trial court abused its discretion. In re B.M., 228 S.W.3d at 464; Doyle, 955 S.W.2d at 479; Scoggins, 200 S.W.3d at 836. To determine whether the trial court abused its discretion, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and whether it erred in its exercise of that discretion. In re B.M., 228 S.W.3d at 464.
In a nonjury trial, when no findings of fact or conclusions of law are filed or properlyrequested, we infer that the trial court made all the necessary findings to support its judgment. Roberson v. Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam); Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.—Dallas 2008, no pet.); Mays v. Pierce, 203 S.W.3d 564, 571 (Tex. App.—Houston [14th Dist.] 2006, pet. denied). When the inferred 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). In addition, we defer to the trial court to resolve conflicts in the evidence and to determine the weight to be given the testimony. Bates v. Tesar, 81 S.W.3d 411, 425 (Tex. App.—El Paso 2002, no pet.); see also Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264, 270-71 (Tex. App.—Fort Worth 2004, no pet.) (providing that as the finder of fact for the proceeding, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony). The trial court is in the best position to observe the demeanor and personalities of the witnesses and can feel the forces, powers, and influences that cannot be discerned by merely reading the record. Bates, 81 S.W.3d at 424.
To obtain possession of or access to a grandchild, the petitioner must overcome the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that, among other things, the child's physical health or emotional well-being would be significantly impaired if the grandparent's access or possession was denied. TEX. FAM. CODE ANN. § 153.433(a)(2); Derzapf, 219 S.W.3d at 333-35 ); see Troxel v. Granville, 530 U.S. 57, 72-73 (U.S. 2000).4 The proper standard of proof then is a preponderance of the evidence, see TEX. FAM. CODE ANN. § 153.433(a)(2), meaning "the greater weight of the credible evidence." Murff v. Pass, 249 S.W.3d 407, 409 n.1 (Tex. 2008) (per curiam) (citing State v. Addington, 588...
To continue reading
Request your trial