Order Granting Grandparent Access to Grandchild Affirmed

Ramona Casas et al. v. Felipe Adriano et al., No. (Tex.App.- Corpus Christi, Jul. 5, 2007)(Opinion by Justice Vela)(dispute between two sets grandparents; no parent conservator appointed)
Appeal from 92nd District Court of Hidalgo County (affirmed)

Memorandum Opinion by Justice Rose 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."

Full Style of case: RAMONA CASAS AND CLAUDETTE DENIZ CASAS v. FELIPE ADRIANO AND MARIA ANGELA ADRIANO (Tex.App.- Corpus Christi, July 5, 2007)(Vela)(grandparent suit, SAPCR)
Appeal from 92nd District Court of Hidalgo County