Opinion
NO. 03-17-00751-CV
05-15-2018
Kassandra Marie Castanon, Appellant v. Jose Carlos Gomez-Valles, Appellee
FROM THE COUNTY COURT AT LAW NO. 3 OF WILLIAMSON COUNTY
NO. 17-2670-FC3 , HONORABLE DOUG ARNOLD, JUDGE PRESIDING MEMORANDUM OPINION
Kassandra Marie Castanon appeals the trial court's refusal to include her infant son as a protected person in a protective order that the trial court rendered prohibiting appellee Jose Carlos Gomez-Valles, her ex-boyfriend and the father of the infant, from engaging in various forms of conduct, including communicating with her. See Tex. Fam. Code § 85.001 (authorizing trial court to render protective order upon finding that respondent has committed family violence). On appeal, Castanon contends that the trial court erred in determining that the issue of Gomez-Valles's contact with his infant son must be addressed in a suit affecting the parent-child relationship (SAPCR) rather than in a protective-order proceeding. We affirm the trial court's rendition of the protective order.
DISCUSSION
Because the parties are familiar with the facts of the case and its procedural history, we do not recite them in this opinion except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.1, 47.4.
In her sole issue, Castanon contends that the trial court "erred in its assessment that it did not have jurisdiction to protect [her] infant son on a protective order against that child's father." Specifically, she asserts that although a protective order can be issued in the context of a SAPCR, it may, and should here, also be issued separately and independently of a SAPCR, whether or not a SAPCR is pending. See id. § 85.061 ("If an application for a protective order is pending, a court may not dismiss the application or delay a hearing on the application on the grounds that a suit for dissolution of marriage or suit affecting the parent-child relationship is filed after the date the application was filed."); In re Keck, 329 S.W.3d 658, 661 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (holding that protective order filed in different court from one in which parties had pending SAPCR was not "issued in" SAPCR and could be appealed separately); Magill v. Sheffield, 612 S.W.2d 677, 681 (Tex. Civ. App.—Dallas 1981, no writ) ("We recognize that a proceeding seeking to deny a parent access to his child and authorize another person to have possession is, in a broad sense, one which affects the parent-child relationship. Nevertheless, the legislature . . . has expressly provided an independent remedy for protective orders in addition to the remedies available under [the SAPCR provisions].").
Castanon supports her argument by citing an excerpt of the reporter's record from the hearing on the protective order in which the trial court "declined" to consider evidence pertaining to the inclusion of the parties' infant son on the protective order due to its determination that the question of whether the infant should be protected from his father should be considered by a court in the context of a SAPCR. That excerpt reads:
Court: Okay. I could probably do that [include Castanon's older child with a different father as a protected person], but I'm not probably not [sic] going to do anything with regard to the infant.Besides this exchange and a couple of brief narrations later in the hearing in which the trial court, unprompted, reiterates its decision on the matter without further explication or objection, there is nothing else in the record excerpt or any proceedings preceding it reflecting the trial court's determination on the issue of whether the infant may be included in the protective order. On this limited record, we cannot conclude that the district court erred or abused its discretion in declining to include the infant in the protective order, even assuming it had jurisdiction to make that determination. And to the extent this exchange could be viewed as indicating Castanon's desire to present evidence about the issue of appellee's alleged danger to the infant, Castanon has not preserved error as to any exclusion of evidence, nor has she raised exclusion of evidence as an issue on appeal. See Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2) (offer of proof); Pruncutz v. Quinney, No. 03-01-00043-CV, 2001 WL 1627650, at *3 (Tex. App.—Austin Dec. 20, 2001, no pet.) (not designated for publication) ("Complaints on appeal must match those presented in the trial court.").
Counsel: We are also going to be able to put on evidence to show that he tried to take the baby while she was in the hospital. I can —
Court: I'm not going to do anything with the infant if he doesn't pose any type of physical danger to the infant. You're not alleging that, are you?
Counsel: When he did try to take the child from the hospital, yes.
Court: I'm not going to do that. That's for a SAPCR. It's not for a protective order. I don't know how many times I have to say that. That's my position.
Counsel: We're just also concerned about his gang affiliations, his family connections —
Court: I'm not going to enter any order with regard to their infant. His infant. All right.
We affirm the trial court's rendition of the protective order.
/s/_________
David Puryear, Justice Before Justices Puryear, Pemberton, and Bourland Affirmed Filed: May 15, 2018