Frank Banta v. Texas Department of Family and Protective Services

NUMBER 13-06-548-CV COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG FRANK BANTA, Appellant, v. TEXAS DEPARTMENT OF FAMILY AND PROTECTIVE SERVICES, Appellee. On appeal from the 33rd District Court of Burnet County, Texas. MEMORANDUM OPINION Before Justices Garza, Benavides, and Vela Memorandum Opinion by Justice Garza Appellant, Frank Banta, appeals the denial of his request for grandparent access to his granddaughter, S.B. Because we hold the trial court did not abuse its discretion, we affirm the trial court's judgment. I. Factual and Procedural Background S.B. was born to Banta's daughter Hollie on March 4, 2002. Hollie and S.B. moved in with Banta when S.B. was one year old. They lived with him for approximately one year. S.B. was removed from Hollie's care on November 3, 2004, by Child Protective Services (CPS). The Texas Department of Protective and Regulatory Services (TDPRS) filed an Original Petition for Protection of a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child Relationship (SAPCR). Hollie executed an Affidavit of Relinquishment of Parental Rights. S.B.'s father, David Doubleday, was not involved in her life. He had not paid any substantial child support and had not seen S.B. in over a year and a half. TDPRS was not able to locate David. See Tex. Fam. Code Ann. § 161.107(b)-(e) (Vernon 2006). He was served by publication. See id. On August 23, 2005, Banta intervened in the suit seeking managing conservatorship of S.B. On December 5, 2005, Banta filed a supplemental petition requesting grandparent access to S.B. pursuant to Texas Family Code sections 153.432 and 153.433. See Tex. Fam. Code Ann. §§ 153.432, 153.433 (Vernon 2006). At a final hearing in the SAPCR on December 6, 2005, Hollie and David's parental rights were terminated. During this hearing, Banta abandoned his request for conservatorship of S.B. and proceeded only on his request for grandparent access. The trial court heard evidence and argument of counsel on Banta's request for grandparent access. The trial court did not rule on the request and instead took the request under advisement. A final order in the SAPCR was entered on December 6, terminating both parents' rights and appointing the TDPRS as permanent managing conservator. The order further provided that S.B. would remain in the home of Theresa and James Blankenburg "until the final adoption is consummated" by the Blankenburgs. On June 13, 2006, the court modified the above order and named the Blankenburgs managing conservators of S.B. On August 29, 2006, the court entered an order denying Banta's request for access. The court found that Banta's requested access to S.B. was not in her best interest and that the denial of court-ordered access "will not significantly impair the child's physical health or emotional well-being." This appeal ensued. (1) II. Plea to the Jurisdiction Prior to the filing of the appellate briefs in this case, the attorney ad litem for S.B. filed a plea to the jurisdiction claiming that, because the adoptive parents are not parties to the lawsuit nor to the appeal, this Court is without jurisdiction to proceed. (2) The ad litem raises this issue for the first time on appeal. She never complained to the trial court that the adoptive parents were necessary parties as required by the rules of civil procedure. See Tex. R. Civ. P. 39. Prior to the amendment of rule 39 in 1971, a failure to include an indispensable party was fundamental error which could be raised to attack the court's jurisdiction on appeal. See, e.g., Petroleum Anchor Equip., Inc. v. Tyra, 406 S.W.2d 891, 893 (Tex. 1965); Sharpe v. Landowners Oil Ass'n, 92 S.W.2d 435, 436 (Tex. 1936). The amendment to rule 39 in 1971 rendered inoperative most of the potential for fundamental error due to failure to include an indispensable party. McBurnett v. Gordon, 534 S.W.2d 370, 372 (Tex. Civ. App.-Beaumont 1976, writ ref'd n.r.e.). (3) "Under the provisions of our present Rule 39 it would be rare indeed if there were a person whose presence was so indispensable in the sense that his absence deprives the court of jurisdiction to adjudicate between the parties already joined." Cooper v. Tex. Gulf Indus., Inc., 513 S.W.2d 200, 203 (Tex. 1974); see Cox v. Johnson, 638 S.W.2d 867, 867-68 (Tex. 1982) (disapproving of this Court's holding that failure to join a necessary party was fundamental error, but denying the writ of error because of other meritorious issues in the appeal). The supreme court in Cooper explained, "Contrary to our emphasis under Rule 39 before it was amended, today's concern is less that of the jurisdiction of a court to proceed and more a question of whether the court ought to proceed with those who are present." Cooper, 513 S.W.2d at 204; see Brooks v. Northglen Ass'n, 141 S.W.3d 158, 162-63 (Tex. 2004) (stating that whether suit should be dismissed because the zoning board was not joined as a defendant is a prudential rather than jurisdictional question); Griggs v. Latham, 98 S.W.3d 382, 385 (Tex. App.-Corpus Christi 2003, pet. denied) (citing Cooper, 513 S.W.2d at 204; Hedley Feedlot, Inc. v. Weatherly Trust, 855 S.W.2d 826, 832 (Tex. App.-Amarillo 1993, writ denied)); Gomez v. Kestermeier, 924 S.W.2d 210, 212 (Tex. App.-Eastland 1996, writ denied) (the failure to join parties, even those necessary and indispensable, is not jurisdictional). Accordingly, we need not address the ad litem's plea to the jurisdiction because the contention raised is not a jurisdictional issue. Further, because the ad litem did not object at the trial level to the non-joinder, the issue was waived. Tex. R. App. P. 33.1(a)(1); Brooks, 141 S.W.3d at 163. (4) III. GRANDPARENT ACCESS In his first issue, Banta claims that the second prong of Texas Family Code section 153.433 does not apply when the State is already involved in the parent-child relationship. The statute provides, in relevant part: The court shall order reasonable possession of or access to a grandchild by a grandparent if: (1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated; and (2) 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; and * * * * Tex. Fam. Code Ann. § 153.433. The Department does not concede that the second prong of section 153.433 does not apply when a child has been removed from the parents and placed in temporary managing conservatorship of the Department. However, the Department does not dispute that the presumption does not apply when, as in the present case, the parental rights of both parents have been terminated. (5) Although neither party has provided any authority in support of this contention, we agree that the presumption is inapplicable given the facts of this case. The leading case involving grandparent access is Troxel v. Granville, 530 U.S. 57 (2000). In Troxel, the United States Supreme Court 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. However, because the trial court in the present case terminated the rights of both of S.B.'s parents, neither could be presumed "fit" at the time the trial court considered Banta's request. See id. at 68. Thus, we proceed to review Banta's second issue without taking into consideration the "fit" parent presumption. In his second issue, Banta asserts that the trial court abused its discretion in finding that it was not in the best interest of S.B. to have visitation with him and that the denial of court ordered access to S.B. would not significantly impair S.B.'s physical health or emotional well-being because there is no evidence to support the finding. (6) Banta relies on sections 153.432 and 153.433 of the family code. See Tex. Fam. Code Ann. §§ 153.432, 153.433. Section 153.432 of the family code gives grandparents standing to petition the court for access to or possession of a child. See Tex. Fam. Code Ann. § 153.432. Section 153.433 identifies the conditions under which such possession or access will be granted. See Tex. Fam. Code Ann. § 153.433. Access pursuant to section 153.433 is subject to the trial court's determination of the best interest of the child. See Tex. Fam. Code Ann. §153.002 (Vernon 2002); In re W.M., 172 S.W.3d 718, 728 (Tex. App.-Fort Worth 2005, no pet.). The trial judge is given wide latitude in determining the best interests of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967). The family code does not define or set out the relevant factors to be considered when determining whether an action is in the best interest of a child. Rather, the trial judge considers a nonexhaustive list of considerations for determining a child's best interest. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976) (enumerating list of factors to ascertain best interest of child in parental termination context). Among the factors are the following relevant considerations: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; and (3) the emotional and physical danger to the child now and in the future. See id. The trial court's judgment regarding what serves the best interest of the child with regard to access is a discretionary function and will only be reversed a determination that the trial court abused its discretion. See In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007); MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex. App.-Corpus Christi 1990, writ denied). 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. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985); Scoggins v. Trevino, 200 S.W.3d 832, 836 (Tex. App.-Corpus Christi 2006, no pet.). We may not reverse for abuse of discretion merely because we disagree with a decision of the trial court. Downer, 701 S.W.2d at 242. An abuse of discretion does not occur where the trial court bases its decisions on conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). Banta claims that the evidence at trial "clearly shows that [he] and [S.B.] developed a relationship and it is clearly in [S.B.'s] best interest that she be allowed to see [him]." In support of this claim, Banta points to evidence that S.B. lived with him for one year and claims that they "bonded" during that year. At trial, Banta testified that he and S.B. would get up early in the mornings and eat breakfast. They would go for walks two or three times a day, and S.B. would pick flowers. He would take S.B. to his job-sites, where his co-worker said he was the most "competent baby-sitter he'd ever seen in his life." Banta also testified he took S.B. to the zoo and carried her when she got tired. At trial, Banta claimed he and S.B. developed a loving grandfather-granddaughter relationship. On appeal, Banta also claims "there is no evidence [that] [sic] ending S.B.'s relationship with [him] will not harm her. To the contrary, the evidence demonstrates the close relationship she had with [him] contributes greatly to her emotional well being." In support of this complaint Banta points to the lack of "credible" evidence that there was ever any improper sexual contact between him and S.B. (7) Although Banta claims there is no evidence to support the trial court's finding that it is not in S.B.'s best interest for him to have access, the record speaks to the contrary. On cross-examination, Banta acknowledged S.B. was living in his home when she was removed by CPS because she had suffered a burn while under Hollie's care. He admitted when CPS came out, S.B. was dirty and didn't have a diaper on. Banta stated, "It looked pretty bad, I admit, but that was an exception to the rule." He also admitted that his house was dirty and that CPS found weapons all over the house, including knives and guns. A CASA report in the record indicates Banta admitted to allowing S.B. to play with knives and a drill press. Theresa Blankenburg testified that she had taken care of S.B. for almost one year. During that time, she permitted Banta access until she was advised by S.B.'s therapist that it was in S.B.'s best interest not to see Banta anymore. Blankenburg testified that S.B. is "scared of her grandpa, and she does not want to see him." Blankenburg claimed S.B. tells her this "all the time." When she would get her ready for visitation with him, "[S.B.] would cry and stuff because she did not want to go . . . . She would be very angry." Lee Goding, a Court Appointed Special Advocate (CASA) assigned to the case, testified that the report from the therapist indicated S.B. has "issues" with Banta. (8) Goding further testified S.B. was taking Zantac during the time she would go on visits with Hollie and Banta, which she believed to be indicative of the stress S.B. was under. Based on the report and S.B.'s "acting out," Goding recommended denying visitation. Based on the record before us, and keeping in mind that we have not been provided with a copy of the CASA reports and therapist report, we cannot say the trial court abused its discretion in denying Banta's request for grandparent access to S.B. Accordingly, Banta's second issue is overruled. In his third issue, Banta complains that the court's order is an impermissible advisory opinion because the trial court did not clearly decide whether he would have access. The basis for Banta's complaint is a "note to the parties" in the order which states: Notwithstanding the foregoing, it is not the Ruling of the Court that Frank Banta must never have any contact with the child, but instead, finds that it is in the child's best interest to leave the determination of Frank Banta's access to the child with the child's caretakers (and/or adoptive parents) as to where, when and under what circumstances there should be any future contact between Frank Banta and the child. Banta claims the above language makes the trial court's order contingent on future events. Banta's complaint is without merit. The order clearly states the trial court's decision to deny Banta's request for access. Specifically, located on the order just above the note to the parties section, is the trial court's ruling: "Accordingly, it is ordered, adjudged and decreed that Frank Banta's Petition in Intervention Requesting Grandparent Access is, in all things, Denied." And just below the note to the parties, the order also contains a mother hubbard clause stating: "All relief requested by any party which is not specifically granted herein is Denied." Banta's request for access was clearly denied and not contingent on any future event. We conclude the "note" by the court was more akin to a request or suggestion that the parties continue to do what is in S.B.'s best interest in the future, which despite the trial court's denial of Banta's court-ordered request for access, does not preclude the parties from reaching an agreement regarding access on their own prerogative. We think the trial court's intent was best put into words by the Fort Worth Court of Appeals when it said: [W]e can say that the law does not have all the answers, and we can say that a two-year-old's complete loss of the two most long-term, stable influences in his life cannot be a good thing, and we can implore the four adults who claim to love these children and want what is best for them to work toward a private compromise outside the legal system that will ensure the children's bright, stable future without erasing the positive remnants of their past. In re W.M., 172 S.W.3d at 730. Banta's third issue is overruled. The judgment of the trial court is affirmed. DORI CONTRERAS GARZA, Justice Memorandum Opinion delivered and filed this the 26th day of July, 2007. 1. The court's December 6, 2005 hearing references the pending adoption of S.B. by the Blankenburgs. The record of the adoption proceeding is not before us. Accordingly, our review is limited to the record before us and the parties involved in those proceedings. 2. "Jurisdiction" refers to a court's authority to adjudicate a case. Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (citing Dubai Petroleum Co. v. Kazi, 12 S.W.3d 71, 75 (Tex. 2000)). "In general, as long as the court entering a judgment has jurisdiction over the parties and the subject matter and does not act outside its capacity as a court, the judgment is not void." Id. 3. The very title of the rule was changed from "Necessary Joinder of Parties" to "Joinder of Persons Needed for Just Adjudication." For specific pre-and post-amendment changes see Petroleum Anchor Equipment, Inc. v. Tyra, 406 S.W. 2d 891, 893 (Tex. 1966) and the current version of Texas Rule of Civil Procedure 39. 4. We note that the ad litem did file a motion in opposition to intervention; however, she filed it on standing grounds and not on non-joinder grounds. See Tex. R. App. P. 33.1(a)(1). 5. In the present case, the rights of S.B.'s parents were terminated the day after Banta filed his request for grandparent access and before the trial court considered and ruled on Banta's request for grandparent access. 6. The Department claims that if this Court were to issue an opinion granting access to S.B., the opinion would impinge upon the rights of S.B.'s adoptive parents because they are not parties to the appeal; thus, our opinion would be advisory. However, given the disposition of the appeal, we need not address this contention. 7. We note that other than Banta's bare contention that his close relationship with S.B. contributes to her emotional well-being and his brief description of his interaction with S.B., Banta failed to argue or explain how or why these interactions or lack thereof affect S.B.'s emotional or physical needs. See Tex. R. App. P. 38.1(h). 8. The court took judicial notice of the CASA reports which included the therapist's report . These reports have not been made part of the appellate record.