Opinion
No. 13-03-356-CV
Memorandum Opinion delivered and filed May 12, 2005.
On appeal from the 197th District Court of Cameron County, Texas.
Before Chief Justice VALDEZ and Justices, HINOJOSA and RODRIGUEZ.
MEMORANDUM OPINION
Appellant, the biological mother of M.A.T, a minor child, brings this appeal from an original proceeding in a suit affecting parent child relationship wherein appellee, the biological father, was named as sole joint managing conservator. By four issues, appellant contends that (1) the evidence is legally and factually insufficient to support the judgment, (2) the trial court erred in overruling an objection that the child's statement was hearsay, and (3) the father's parents were indispensable parties. We affirm.
I. Background
All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
II. Sufficiency of the Evidence A. Presumption in Favor of Natural Parent
By her first and second issues, appellant generally contends that the evidence is legally and factually insufficient to support the judgment. More specifically appellant complains that the evidence is insufficient to overcome any presumption in favor of the appointment of a natural parent as conservator. See In the Interest of V.L.K., 24 S.W.3d 338, 342 (Tex. 2000) ("The presumption that the best interest of the child is served by awarding custody to the parent is deeply embedded in Texas law."); see also Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002) (providing that unless court finds appointment of parent would not be in best interest of child because it would significantly impair child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents as joint managing conservators). Appellant contends that the conservatorship has been given to non-parents because the paternal grandparents will be caring for the child.
B. Grandparents as Indispensable Parties
Because the first two issues address M.A.T.'s grandparents, we address them in conjunction with appellant's fourth issue wherein she contends that the paternal grandparents are indispensable parties and that the trial court erred in failing to join them as parties in this suit. Appellant also asserts that the trial court erred in failing to instruct the jury on the presumption in favor of the natural parent.
To preserve a complaint for appellate review, a party must have presented to the trial court a timely request, objection, or motion stating the specific grounds for the ruling desired. Tex.R.App.P. 33.1(a)(1). When a party makes no objection to the trial court as to the absence of an indispensable party, it will not be heard to complain on appeal. Pirtle v. Gregory, 629 S.W.2d 919, 920 (Tex. 1982). Appellant did not object at trial to the absence of the grandparents as parties in this case. Thus, she has not preserved this argument for our review.
C. Jury Charge
Appellant also complains that the charge did not include an instruction on the presumption in favor of the natural parent, the mother in this case. However, any complaint to a jury charge is waived unless specifically included in an objection. In the Interest of B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) (citing TEX. R. CIV. P. 274; TEX. R. APP. P. 33.1(a)(1)). "A party must make the trial court aware of the complaint, timely and plainly, and obtain a ruling." Id. Appellant did not object to the charge; rather appellant's counsel noted on the record that he had reviewed the charge and had no objection. Appellant, therefore, has waived any objection to the charge in this case. Accordingly, appellant's fourth issue has not been preserved for our review. Furthermore, because the grandparents are not parties to this suit and because appellant does not bring sufficiency challenges as to appellee's appointment as sole managing conservator of the child, we overrule issues one and two.
III. Admission of Child's Statement
In her third issue, appellant contends the trial court erred in overruling an objection that the child's statement was hearsay which probably resulted in an improper judgment. Appellant concedes there was evidence regarding what appellant told the child apart from the child's hearsay testimony. Nonetheless, appellant asserts there "was harm because the child's testimony made the difference in who got the child." We disagree.
At trial, appellee testified that his son told him "I don't want to be with you. I don't want you." Over appellant's hearsay objection, appellee testified that his son said appellant told him to say that.
Assuming without determining that the statement of the child admitted over objection was inadmissible hearsay, it was cumulative of other similar statements that were admitted without objection. See Ferguson v. State, 97 S.W.3d 293, 298 (Tex.App.-Houston [14th Dist.] 2003, pet. ref'd) (holding subsequent identification was cumulative and harmless); see also Tex.R.App.P. 44.2(b) (stating error to be disregarded if does not affect substantial rights). Therefore, we conclude the admission of the complained of statement was cumulative and harmless. Issue three is overruled.
Appellee also testified, without objection, that after being at his mother's the child would tell him, "I don't love you" or "I don't want to be with you." Appellee testified that "[o]nce Miss Arrona leaves, it's like he didn't say anything. He just act [sic] his normal self." Appellee also testified that he was concerned that "[appellant] puts or tells [the child] things that are not correct . . . like I don't love him, I don't care for him. That I have other people or have other things to do besides him." The child's paternal grandmother also testified, without objection, that during the trial the child cried before they went to lunch, but his attitude changed totally when they got him in the elevator on their way to eat. When asked why he was crying, the child said it was "[b]ecause my mom say `no go[.]'"
IV. Conclusion
We affirm the judgment of the trial court.