in the Interest of J.R.W., a Child ( 2017 )

AFFIRM; and Opinion Filed July 20, 2017.
Court of Appeals
S In The
Fifth District of Texas at Dallas
No. 05-15-01479-CV
IN THE INTEREST OF J.R.W., A CHILD
On Appeal from the 199th Judicial District Court
Collin County, Texas
Trial Court Cause No. 469-56410-2010
MEMORANDUM OPINION ON REHEARING
Before Justices Bridges, Lang-Miers, and Schenck
Opinion by Justice Schenck
On May 19, 2017, on the Court’s own motion, we withdrew the opinion issued on March
21, 2017, and we vacated our judgment of that same date. The following is now the opinion of
the Court.
Mother of J.R.W. appeals from a final order appointing herself and J.R.W.’s paternal
grandmother (“Grandmother”) as joint managing conservators. 1 In her first issue, Mother
complains Grandmother lacked standing to intervene to seek access to and conservatorship of
J.R.W. In her second issue, Mother argues the trial court erred by appointing Grandmother as a
joint managing conservator of J.R.W. In her third and final issue, Mother contends the trial court
violated her due-process rights by depriving Mother of opportunities to present arguments and
testimony and to examine witnesses. We affirm the trial court’s judgment.
1
Father was named possessory conservator, and no one has challenged that part of the trial court’s order.
FACTUAL AND PROCEDURAL BACKGROUND
Mother and Father have one child, J.R.W., born in May 2009. When J.R.W. was only
weeks old, Mother and Father separated. In December 2010, Father filed a petition, seeking
appointment of himself and Mother as joint managing conservators. Mother responded with a
general denial. By January 2011, the trial court signed orders allowing Father visitation to be
supervised by Grandmother. On August 22, 2013, Grandmother filed her original petition in
intervention. She filed her first amended petition on December 17, 2013, and a supporting
affidavit the next day. On January 10, 2014, Mother filed a motion to strike Grandmother’s
intervention. After a January 16, 2014 hearing on temporary orders, at which Mother and
Grandmother both argued Father had committed family violence and suffered from drug
addiction and mental illness, the trial court issued temporary orders appointing Mother as sole
managing conservator and awarding Grandmother monthly visitation with J.R.W. at a neutral
location. On March 26, 2014, Grandmother filed a response to Mother’s motion to strike, and on
April 14, 2014, Grandmother filed an affidavit in opposition to Mother’s motion to strike and in
support of her possession of or access to J.R.W. On April 17, 2014, the trial court held a hearing
on several motions, including Mother’s motion to strike, which the trial court later denied on
May 1, 2014.
Mother, Father, and Grandmother proceeded to a bench trial on March 17, 2015, and the
trial court signed a final order on September 3, 2015, in which the trial court appointed both
Mother and Grandmother as joint managing conservators with Mother having the exclusive right
to designate the primary residence of J.R.W. Mother filed a motion for new trial in which she
urged, among other things, that the trial court erred in allowing Grandmother’s intervention and
that the evidence was legally and factually insufficient to support the trial court’s judgment.
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After conducting a hearing, the trial court denied Mother’s motion, at which point Mother
appealed.
GRANDMOTHER’S STANDING
A grandparent, by statute, may file an original suit requesting managing conservatorship
under section 102.004(a), intervene in a pending suit under 102.004(b), or file a suit to seek
possession or access under section 153.432. 2 See TEX. FAM. CODE ANN. §§ 102.004, 153.432
(West 2016). The question of whether any party has standing to seek managing conservatorship
is a threshold jurisdictional issue. See In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas
2008, no pet.). When, as here, the trial court makes no separate findings of fact or conclusions of
law, we must draw every reasonable inference supported by the record in favor of the trial
2
Section 102.004 provides for standing for grandparent or other person as follows.
(a) In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the
child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if
there is satisfactory proof to the court that:
(1) the order requested is necessary because the child’s present circumstances would significantly impair the child’s
physical health or emotional development; or
(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented
to the suit.
(b) An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the
court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave
to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the
court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators
would significantly impair the child’s physical health or emotional development.
(c) Possession of or access to a child by a grandparent is governed by the standards established by Chapter 153.
Section 153.432 provides for a grandparent’s suit for possession or access as follows.
(a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing:
(1) an original suit; or
(2) a suit for modification as provided by Chapter 156.
(b) A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the
relief, without regard to whether the appointment of a managing conservator is an issue in the suit.
(c) In a suit described by Subsection (a), the person filing the suit must execute and attach an affidavit on knowledge or
belief that contains, along with supporting facts, the allegation that denial of possession of or access to the child by the
petitioner would significantly impair the child’s physical health or emotional well-being. The court shall deny the relief
sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to
support the relief authorized under Section 153.433.
Additionally, section 102.003 provides general standing to file suit, but neither Grandmother nor Mother argues this section
applies to the record here. TEX. FAM. CODE ANN. § 102.003 (West 2016).
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court’s judgment. Id. We review the trial court’s implied factual findings for legal and factual
sufficiency, and we review the trial court’s implied legal conclusions de novo. Id.
Mother argues that Grandmother failed to establish standing to intervene in this case.
She contends that the family code requires a grandparent seeking access to or conservatorship of
a grandchild to show that the child would suffer significant impairment unless the grandparent’s
requested relief is granted. Mother bases her argument in large part on sections 102.004(b) and
153.432(c). FAM. §§ 102.004, 153.432. Section 102.004(b) permits a court to allow a
grandparent to intervene so long as there is satisfactory proof that appointment of a parent as a
sole managing conservator or both parents as joint managing conservators would significantly
impair the grandchild’s physical health or emotional development. Id. § 102.004(b). Section
153.432(c) requires a grandparent filing a suit for possession and access to a grandchild to
execute and attach a supporting affidavit alleging that denial of possession of or access to the
grandchild by the grandparent would significantly impair the child’s physical health or emotional
well-being. Id. § 153.432. As detailed below, we agree with Mother that a finding of significant
impairment of the child’s physical health or emotional development is necessary to establish
standing to intervene.
I. Grandmother’s Standing through Consent
Grandmother urges that we might avoid the statutory standing question all together as she
alleges Mother and Father consented to her intervention. She points to section 102.004(a)(2) that
permits a grandparent to file an original suit requesting managing conservatorship if there is
satisfactory proof to the court that the parents or managing conservator consented to the suit.
FAM. § 102.004(a)(2). Grandmother argues first that we may presume Mother’s consent from
the fact that she failed to provide transcripts from all the hearings conducted in this case. She
points to four pretrial hearings that are noted on the court’s docket for which Mother has not
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provided transcripts. Grandmother next argues Mother actually consented to her standing by
consenting to temporary orders providing Grandmother with court–ordered access to J.R.W. She
also points to Mother’s later pleadings in which she stated that “[t]he Court has jurisdiction of
this case and of all the parties . . . .” and requested Grandmother be “appointed as Intervenor with
limited supervised visitation rights for the child.” Finally, Grandmother argues Father expressly
or impliedly consented to her intervention because he actively participated in the lawsuit and
filed pleadings referring to Grandmother as an intervenor without objecting to her standing.
Mother filed a pro se motion to strike Grandmother’s invention in which she challenged
Grandmother’s standing to seek either access or conservatorship. Mother made repeated efforts
to be heard on her motion to strike at the trial court’s hearing on January 2014 on temporary
orders, but the trial court informed Mother she would have to set a separate hearing for her
motion to strike. On April 17, 2014, at Mother’s requested hearing on her motion to strike, she
again argued that Grandmother lacked standing to intervene. On May 1, 2014, the trial court
denied Mother’s motion to strike. Mother raised the issue of Grandmother’s standing once again
at trial and once more in her motion for new trial. Grandmother fails to point to authority from
either the supreme court or this Court in support of her argument that we might imply consent in
these circumstances, and we find the record sufficiently developed and clear to reject it.
Accordingly, we reject Grandmother’s arguments regarding consent and turn to Mother’s
arguments.
II. Pleadings and Evidence to Establish Standing
Mother complains that many of Grandmother’s allegations in her affidavit and amended
affidavit complained of events that took place after her original petition to intervene was filed
and argues they should not be considered in determining whether there is significant impairment
so as to support standing.
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Generally, standing is determined at the time suit is filed in the trial court. Where the
evidence supports standing as of that moment, subsequent events will not deprive the court of
subject matter jurisdiction. See In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.—Dallas 2008, no
pet.). When, as here, the trial court makes no separate findings of fact or conclusions of law, we
must draw every reasonable inference supported by the record in favor of the trial court’s
judgment. See id. Further, we note the rules of civil procedure authorize amendments to
pleadings and that Mother’s first amended petition and supporting affidavits were filed prior to
the trial court’s hearing on Mother’s motion to strike. See TEX. R. CIV. P. 65 (substituted
instrument takes place of original). Therefore, we consider Grandmother’s amended pleadings,
not just Grandmother’s original petition in intervention, to determine whether the record supports
the finding that she had standing at the time she initially intervened.
III. Sufficiency of Proof to Establish Grandmother’s Standing
Grandmother had the burden of establishing her standing below. 3 See Orix Capital
Markets, LLC v. Am. Realty Trust, Inc., 356 S.W.3d 748, 752 (Tex. App.—Dallas 2011, pet.
denied). While Mother bases her arguments on sections 153.432 and 102.004, Grandmother
asserts “the Grandparent Access statute,” which we construe to mean section 153.432, is not
applicable in this case because she was awarded possession as a conservator rather than mere
access as permitted in section 153.432. See FAM. § 153.432. We note that despite the fact that
Grandmother’s attorney represented to the trial judge at the hearing on Mother’s motion to strike
that Grandmother was not seeking parental rights but only possession of or access to J.R.W., in
her pleadings, Grandmother sought conservatorship, and by the time the case proceeded to trial,
3
Mother complains of the following alleged deficiencies in Grandmother’s supporting evidence: (1) Grandmother failed to submit a
supporting affidavit required by section 153.432 when she filed her original petition to intervene, (2) the affidavit attached to Grandmother’s first
amended petition to intervene failed to set forth facts to support the claim that denial of possession of or access to the child by Grandmother
would significantly harm J.R.W.’s physical health or emotional well-being, (3) the amended affidavit and other documents Grandmother
provided were insufficient to establish her standing, and (4) Grandmother’s second supplemental petition to intervene failed to include any
affidavit or allegations in support of her requests for access or conservatorship.
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all understood Grandmother sought to be appointed as joint managing conservator of J.R.W.
Accordingly, we will analyze whether Grandmother had standing to intervene under section
102.004.
Section 102.004 of the family code provides that:
the court may grant a grandparent or other person deemed by the court to have
had substantial past contact with the child leave to intervene in a pending suit . . .
if there is satisfactory proof to the court that appointment of a parent as a sole
managing conservator or both parents as joint managing conservators would
significantly impair the child’s physical health or emotional development.
FAM. § 102.004(b).
Grandmother’s First Amended Petition in Intervention filed December 17, 2013, included
a supporting affidavit that alleged following facts to support her petition. 4
• Mother had “relied heavily upon [Grandmother] for raising [J.R.W.] from the day
he was born.”
• Mother depended on Grandmother to supply J.R.W. diapers and formula when he
was an infant.
• Grandmother continued to help Mother with her expenses after she and Father
separated.
• J.R.W. had formed a “very strong bond” with Grandmother and her husband
(“Grandfather”) when Grandmother acted as a primary child care provider in the
summer and as a secondary child care provider when Mother worked late.
• Grandmother’s home “was a refuge for [J.R.W.] to play and be on a regular
schedule.”
• J.R.W.’s association with her and Grandfather would maintain his ties with his
extended family.
• Mother intended to exclude Grandmother and Grandfather from access to J.R.W.
• Father lacked the ability to make parenting decisions concerning J.R.W.
4
While the affidavit was titled as “in support of possession or access by grandparent” and alleged that denial of Grandmother’s possession
of or access to J.R.W. would significantly impair his physical health or emotional well-being, it is still evidence in the record from which we may
draw every reasonable inference in favor of the trial court’s judgment. See In re M.P.B., 257 S.W.3d at 808.
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• Father’s problems with drugs and mental illness were “so bad it is paramount that
[Mother] and [Grandmother] work together in the best interest of [J.R.W.]”
Grandmother later filed an amended affidavit in which she alleged the following
additional facts.
• Mother had filed multiple false statements about Grandmother’s behavior and
character.
• Mother had made past accusations of child abuse and molestation of J.R.W. that
had been “ruled out” by child protective agencies.
• Mother had accused a court–appointed visitation supervisor of allowing Father to
molest J.R.W.
• Mother and Father “have demonstrated unstable psychological behavior
dangerous to the child,” specifically Father’s struggles with substance abuse and
depression and Mother’s pattern of “blow-ups and mood swings” each time she
denied a court-ordered visitation.
As noted, the trial court did not enter findings of fact in connection with its original
standing decision or in rendering judgment. As we focus our analysis on the judgment, we are
obliged to draw every reasonable inference supported by the record in favor of the trial court’s
judgment. See In re M.P.B., 257 S.W.3d at 808. To be sure, Grandmother did not allege
specifically when many of the events detailed above took place, we conclude from our review of
the record that the trial court may have reasonably construed all of the foregoing to have
occurred at or before the time Grandmother filed her original petition in intervention. See Tex.
Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex. 1993).
The evidence readily supports the trial court’s implied findings that Grandmother had
substantial past contact with J.R.W. and that there was satisfactory proof to the trial court that
appointment of a parent as a sole managing conservator or both parents as joint managing
conservators would significantly impair the J.R.W.’s physical health or emotional development.
See In re M.P.B., 257 S.W.3d at 808 (concluding record contained legally and factually sufficient
evidence to support implied findings to support standing under section 102.003 of the family
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code). We therefore conclude the trial court did not err in finding that Grandmother had standing
to seek conservatorship of J.R.W. pursuant to section 102.004(b).
We overrule Mother’s first issue.
GRANDMOTHER’S APPOINTMENT AS JOINT MANAGING CONSERVATOR OF J.R.W.
In her second issue, Mother argues the trial court abused its discretion in awarding
Grandmother joint managing conservatorship of J.R.W.
I. Standard of Review & Applicable Law
We review a trial court’s determination of conservatorship for an abuse of discretion. In
re C.M., No. 05-12-00380-CV, 2014 WL 470774, at *3 (Tex. App.—Dallas Feb. 6, 2014, no
pet.) (mem. op.). Under that standard, legal and factual sufficiency of the evidence are not
independent grounds for asserting error, but are relevant in assessing whether the requisite abuse
of discretion is extant. See id. We review the evidence in the light most favorable to the order
and indulge every presumption in favor of the trial court’s ruling. Id. If some probative and
substantive evidence supports the order, there is no abuse of discretion. Id. Because there are no
findings of fact or conclusions of law, it is implied that the trial court made all findings necessary
to support the trial court’s order. Id.
Mother argues the trial court erroneously failed to consider or make any findings
regarding “the significant-impairment standard” and that the trial court instead only stated it
would rule based on what was in the best interest of J.R.W. 5 Mother relies on section 153.131 of
the family code and the U.S. Supreme Court’s decision in Troxel, either or both of which she
urges require the trial court to make a finding of significant impairment of the child’s physical
5
Mother also contends that the final order does not comply with section 153.433 because it does not include findings mandated by the
statute, while Grandmother urges that section 153.433 is irrelevant or moot because she was awarded possession as a conservator rather than
through grandparent access. An order awarding access to or possession of a grandchild over a parent’s objections must include certain findings,
including that denial of possession of or access to the child would significantly impair the child’s physical health or emotional well-being. See
TEX. FAM. CODE ANN. § 153.433 (West 2016). Because we are reviewing the judgment, we will address the standards applicable to it, focusing
on the award of conservatorship it decreed, which unlike section 153.433 mandates no explicit findings. See id. § 153.131.
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health or emotional development to support its judgment. See TEX. FAM. CODE ANN. § 153.131
(West 2016); Troxel v. Granville, 530 U.S. 57 (2000). Section 153.131 provides that unless the
court finds that appointment of the parent or parents would not be in the best interest of the child
because the appointment would significantly impair the child’s physical health or emotional
development, a parent shall be appointed sole managing conservator or both parents shall be
appointed as joint managing conservators of the child. FAM. § 153.131(a).
Grandmother, in contrast, urges that she did not have “any burden to prove significant
impairment” because she did not seek to replace Mother as managing conservator but instead
sought to share joint managing conservatorship with her. She argues that under the supreme
court opinion’s in Brook v. Brook, the test for the appointment of a parent and nonparent as joint
managing conservators is whether the appointment would be in the best interest of the child
regardless of any impairment of the child’s physical health or emotional development. 881
S.W.2d 297, 299 (Tex. 1994) (applying former § 14.01(b)(1) recodified at § 153.131(a)). 6
As there are no findings of fact or conclusions of law, it is implied that the trial court
made all findings necessary to support the trial court’s order. See In re C.M., 2014 WL 470774,
at *3. Here, we need not decide which standard must be applied because the evidence in the
record supports an implied finding under the higher standard—that Mother’s appointment as sole
managing conservator would result in significant impairment of J.R.W.’s emotional
development, if not his physical health.
6
Mother points us to Critz v. Critz, which held that enactment of section 153.131 supplanted the supreme court’s decision in Brook v.
Brook to employ a best-interest standard. 297 S.W.3d 464, 471 (Tex. App.—Fort Worth 2009, no pet.). She argues that the U.S. Supreme
Court’s decision interpreting the Due Process Clause in Troxel would have the same effect. But see Lubbock Cnty. v. Trammel’s Lubbock Bail
Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (“It is not the function of the court of appeals to abrogate or modify established precedent. That function
lies solely with [the supreme court.]”).
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II. Application of Law to Facts
We begin by noting that the evidence Grandmother put forth to establish standing
supported the trial court’s implied finding that, at the time Grandmother intervened, appointment
of a parent as a sole managing conservator or both parents as joint managing conservators would
significantly impair the J.R.W.’s physical health or emotional development. See FAM.
§ 102.004(b). That evidence included Mother’s multiple allegations of past child abuse and
molestation of J.R.W. that were “ruled out” by child protective agencies and that she had
demonstrated unstable psychological behavior dangerous to J.R.W. and a pattern of mood swings
and outbursts each time she refused to comply with a court-ordered visitation. While
recognizing the similarities between the burdens to be met under sections 102.004 and 153.131,
we recognize each involves a separate inquiry, and therefore we review the remaining evidence
in the record, including events that took place after Grandmother’s intervention and before the
trial court’s judgment. Compare FAM. § 102.004(b) with FAM. § 153.131(a).
During 2012, 2013, and 2014, Child Protective Services received, investigated, and
ultimately ruled out several allegations of sexual abuse of J.R.W. by Father, Mother’s stepfather,
Grandmother, and Grandfather. A parenting facilitator testified that if J.R.W. had not been
sexually abused, his emotional development could be adversely affected by repeated false
suggestions of sexual abuse and the resulting investigations. Although she admitted she had not
met J.R.W., the parenting facilitator further testified that there was a high probability that
emotional abuse of J.R.W. could occur based on her review of the family’s records and the
dynamics within the family. Another concern is Mother’s relationship with her stepfather, a
registered sex-offender who sexually abused Mother when she was a child. Mother requested
the trial court order supervised visitation between her stepfather and J.R.W., and Mother
admitted at a hearing on her motion for new trial that she had permitted J.R.W. to be around her
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stepfather “a few times” although she did not leave J.R.W. alone with him. Additionally, the
parenting facilitator testified that Mother insisted her stepfather be part of the counseling process
and that Mother believed her stepfather had changed. Both the parenting facilitator and the
amicus attorney recommended the paternal grandparents should assume Father’s role and be
appointed joint managing conservators with Mother. 7 The parenting facilitator testified that the
structure in place at trial—Mother as sole managing conservator with Grandmother having
scheduled visitation—did not work to provide a healthy structure for J.R.W. 8 She advised that
due to the extremely contentious relationship between Mother and the paternal grandparents,
there should be no contact or interaction at all between them except in cases of emergency.
We conclude that there is sufficient evidence to support an implied finding that Mother’s
appointment as sole managing conservator would result in significant impairment of J.R.W.’s
emotional development, if not his physical health. In re C.M., 2014 WL 470774, at *3. While
each factor discussed above—whether it be the repeated allegations of abuse to CPS that have
been ruled out or Mother’s request to reunify J.R.W. with her stepfather—might individually not
be enough to overcome the parental presumption, taking them together in the aggregate, we are
not convinced the trial court abused its discretion in appointing Mother and Grandmother as joint
managing conservators.
We overrule Mother’s second issue.
VIOLATIONS OF MOTHER’S RIGHT TO DUE PROCESS
In her third issue, Mother argues the trial court violated her due-process rights in four
ways: (1) at two hearings, the trial court prevented Mother from presenting her arguments about
7
We note that Grandfather is not a party to this suit at trial or on appeal and was not appointed as a joint managing conservator of J.R.W.
8
Referring to Mother’s psychological evaluation, the parenting facilitator testified that while Mother attempted to communicate with
others, she had strong feelings of insecurity and major issues with trust that led to “the same dynamics with [the parenting facilitator] that she has
with everyone else: one day she loves me, the next day she thinks I’m the worst thing in the world.”
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standing; (2) at a status hearing, the trial court denied Mother’s requests to question witnesses;
(3) at trial, the trial court prevented Mother from testifying regarding her fitness as a parent; and
(4) at trial, the trial court prevented Mother from calling on additional witnesses to testify as to
her character.
I. Limitation of Mother’s Arguments at Pre-trial Hearings
Mother complains about two hearings at which she argues the trial court declined to
entertain her arguments regarding Grandmother’s standing. At a hearing on January 16, 2014,
the judge first stated the hearing was to consider Grandmother’s motion for additional temporary
orders but then noted she had not granted or denied Grandmother’s petition to intervene. Mother
attempted to raise her objections to Grandmother’s standing, but the trial court asked to first hear
the statutory basis for Grandmother’s petition. After Grandmother’s attorney’s arguments, the
trial court discussed what temporary orders Grandmother’s motion requested and informed
Mother she needed to set a hearing on her motion to strike Grandmother’s petition to intervene.
At a separate hearing on April 17, 2014, the trial court heard three motions, including Mother’s
motion to strike. Mother complains that when she attempted to argue Grandmother’s lack of
standing to intervene, the trial court “declined to entertain her arguments” and “curtailed her
opportunity to present her arguments.”
The record reflects that Mother was in fact allowed to make arguments at the April 17,
2014 hearing on her motion to strike, but the trial court rejected her arguments as not relevant. 9
But even if the trial court had not allowed Mother to present arguments, not every hearing called
9
THE COURT: . . . So what is the purpose of the motion to strike?
....
MOTHER: [Grandmother] has no standing. She did file 271 days too late. She had no consistent contact with the child before that.
THE COURT: Okay. And if she were seeking to come in and get rights and duties, I could follow your argument. . . . What you’re
arguing is a legal argument against her intervening and what we would consider a grandparent coming into the shoes of a parent. That is
not what she is seeking here. She’s just seeking access to be able to see the child, which was already agreed in the prior order.
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for under every rule of civil procedure necessarily requires an oral hearing. See Cire v.
Cummings, 134 S.W.3d 835, 843–44 (Tex. 2004). In any event, the record reflects the trial court
judge at the April 17, 2014 hearing informed the parties she had read the pleadings on file, which
included Mother’s motion to strike in which, among other things, she set forth similar arguments
as she has made here on appeal. 10 Thus, we cannot conclude Mother was denied due process by
any limitation of her oral arguments at the hearings.
II. Exclusion of Mother’s Evidence at Status Hearing and at Trial
We turn to Mother’s arguments that the trial court erred by preventing Mother from
questioning witnesses, testifying as to her fitness as a parent, and calling additional witnesses to
testify as to her fitness as a parent. An appellate court does not reach the question of whether
evidence was erroneously excluded unless the complaint has first been preserved for review.
Sink v. Sink, 364 S.W.3d 340, 346 (Tex. App.—Dallas 2012, no pet.). To preserve error
concerning the exclusion of evidence, the complaining party must actually offer the evidence and
secure an adverse ruling from the trial court. Id. at 347. The reviewing court may be able to
discern from the record the nature of the evidence and propriety of the trial court’s ruling, but
without an offer of proof or bill of exception, we can never determine whether exclusion of the
evidence was harmful. Id. Mother did not make any offer of proof before the trial court and did
not file a formal bill of exception, and thus failed to preserve this issue for appeal. See id.
We overrule Mother’s third issue.
10
The case was transferred from the 469th district court to the 199th district court between the January and April hearings, so a different
judge presided over each of these two hearings.
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CONCLUSION
We affirm the trial court’s judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE
151479F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF J.R.W., A CHILD On Appeal from the 199th Judicial District
Court, Collin County, Texas
No. 05-15-01479-CV Trial Court Cause No. 469-56410-2010.
Opinion delivered by Justice Schenck,
Justices Bridges and Lang-Miers
participating.
In accordance with this Court’s May 19, 2017 order, we VACATED the judgment of
March 21, 2017. This is now the judgment of the Court.
The judgment of the trial court is AFFIRMED.
It is ORDERED that appellee KARAN WINDHAM recover her costs of this appeal
from appellant JENNIFER LYNN BRATTAIN.
Judgment entered this 20th day of July, 2017.
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