                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION
                                               No. 04-15-00119-CV

                                     IN THE INTEREST OF A CHILD

                       From the 229th Judicial District Court, Duval County, Texas
                                       Trial Court No. DC-14-81
                              Honorable Ana Lisa Garza, Judge Presiding

Opinion by:       Karen Angelini, Justice

Sitting:          Sandee Bryan Marion, Chief Justice
                  Karen Angelini, Justice
                  Jason Pulliam, Justice

Delivered and Filed: October 28, 2015

AFFIRMED

           In this appeal, Mr. and Mrs. Roberts, the appellants, challenge a final judgment denying

their petition to adopt a child, and granting Mr. and Mrs. Gomez’s petition to adopt the same child. 1

In four issues, the Robertses argue (1) the trial court abused its discretion in finding that they failed

to show that the Texas Department of Family and Protective Services lacked good cause to

withhold consent to their adoption petition; (2) the trial court abused its discretion in finding that

the Department consented to the Gomezes’ adoption petition; (3) the trial court erred in not

allowing the Robertses to present evidence at the motion for new trial hearing; and (4) the trial

court violated their due process rights at the motion for new trial hearing. We affirm.



1
 To protect the identity of the child, we do not use the actual names of the child or the parties in this opinion. See TEX.
FAM. CODE ANN. § 109.002(d) (West 2014); TEX. R. APP. P. 9.8(b)(2).
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                                                     BACKGROUND

            The child who is the subject of the underlying suit was removed from the care of his

biological mother and placed in foster care shortly after birth. When attempts to reunify the child

and his biological mother failed, the child was placed with the Robertses by court order. Mrs.

Roberts, who is the child’s aunt, had been involved in the child’s life since birth. 2

            The child lived with the Robertses for about four months. After the child’s biological

mother threatened the safety of the child and other members of the Robertses’ household, Mrs.

Roberts contacted the Department and asked that the child be placed with another family. The

child was eventually placed with the Gomezes, who were foster parents.

            The parental rights of the child’s biological parents were terminated, and the Department

was appointed the child’s permanent managing conservator.

            Thereafter, the Robertses filed an original petition seeking to adopt the child. The Gomezes

intervened, also seeking to adopt the child. After several hearings and a bench trial, the trial court

granted the Gomezes’ adoption petition, and denied the Robertses’ adoption petition. The

Robertses filed an amended motion for new trial, which was denied by the trial court. The trial

court filed written findings of fact and conclusions of law. The Robertses appealed.

                                        GOOD CAUSE TO REFUSE CONSENT

            Texas law provides that when the petitioner in an adoption suit is not the child’s managing

conservator, the managing conservator must file written consent to the adoption. Section 162.010

(a) of the Texas family code provides:

            Unless the managing conservator is the petitioner, the written consent of a
            managing conservator to the adoption must be filed. The court may waive the
            requirement of consent by the managing conservator if the court finds that the



2
    Mrs. Roberts and the child’s biological mother are sisters.

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         consent is being refused or has been revoked without good cause. A hearing on the
         issue of consent shall be conducted by the court without a jury.

TEX. FAM. CODE ANN. § 162.010 (a) (West 2014).

         A managing conservator has good cause to refuse to consent to an adoption when it has a

good faith reason to believe the best interest of the child requires that it withhold consent. In the

Interest of F.G., No. 04-04-00681-CV, 2005 WL 3477830, at *2 (Tex. App.—San Antonio Dec.

21, 2005, no pet.). The party seeking waiver of the consent requirement bears the burden to prove

the managing conservator’s lack of good cause to refuse consent. In the Interest of M.P.J., II, 14-

03-00746-CV, 2004 WL 1607507, at *4 (Tex. App.—Houston [14th Dist.] July 20, 2004, pet.

denied). We review a trial court’s finding on good cause for an abuse of discretion. F.G., 2005 WL

3477830, at *2. A trial court does not abuse its discretion if some evidence of substantive and

probative character supports its decision. M.P.J., 2004 WL 1607507, at *4.

         In their second issue, the Robertses argue the trial court abused its discretion in finding that

they did not show that the Department lacked good cause to withhold consent to their adoption of

the child. Here, the record contains some evidence that the Department had a good faith reason to

believe that withholding consent to the Robertses’ adoption petition was in the child’s best interest.

A Department caseworker testified that Mrs. Roberts had told her that she and her husband could

no longer have the child in their home because of threats made by her sister, the child’s biological

mother. 3 According to the caseworker, this raised several concerns. One concern was whether the

Robertses could protect the child from the biological mother. Another concern was whether the

Robertses could provide permanency for the child. Specifically, the concern was that the Robertses



3
 In addition, Mrs. Roberts sent a letter to the caseworker, which was admitted into evidence. In the letter, Mrs. Roberts
stated, “I want to inform you why I made the decision to have my nephew . . . removed from my home and placed in
a fictive kin/[the Gomezes’] home.” Mrs. Roberts further stated in the letter that the child’s biological mother appeared
at a family member’s funeral, where she confronted the Robertses about having custody of her child and threatened
to kidnap the child and the Robertses’ daughter. Both children were present when the threats were made.

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would seek to return the child again if the biological mother made threats in the future. The

caseworker pointed out that the child’s biological mother had also threatened Mr. Gomez, but the

Gomezes reacted differently. The Gomezes did not seek to return the child.

       The Robertses cite to other evidence in the record, which they claim shows they met their

burden to prove the Department lacked good cause to withhold consent. A family friend testified

that Mrs. Roberts did not want to send the child to the Gomezes, but she did so because the

Department told her it was in the child’s best interest. In addition, Mrs. Roberts testified that she

and her husband had intended for the child’s removal from their home to be temporary, not

permanent, and that the reason she wrote the letter asking the Department to remove the child from

their home was to comply with the caseworker’s recommendation. Mrs. Roberts also testified that

she asked to have the child placed with the Gomezes because she had learned that the Gomezes

were in the process of becoming foster parents and she was “desperate” to have the child placed

in a home where she could continue to have contact with him. Finally, Mrs. Roberts testified that

the Department told her the child would be returned to her after her sister’s parental rights were

terminated.

       As the factfinder, the trial court was the sole judge of the credibility of the witnesses and

the weight to be given their testimony. McDowell v. McDowell, 143 S.W.3d 124, 130 (Tex. App.—

San Antonio 2004, pet. denied). Thus, the trial court was entitled to believe one witness and

disbelieve another, and to resolve any inconsistencies in the witnesses’ testimony. Id. In this case,

the trial court could have disbelieved Mrs. Roberts’s testimony about the temporary nature of the

child’s removal from her home. Her testimony was contradicted by the Gomezes, who testified

that it was Mrs. Roberts who first contacted them and asked them if they would consider adopting

the child. Based on this testimony and other evidence in the record, the trial court could have

believed that the Robertses had made a decision to permanently relinquish the child, had informed
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the Department of this decision, and had sought out the Gomezes for the purpose of adopting the

child.

         The trial court did not abuse its discretion in finding that the Robertses failed to meet their

burden to show that the Department lacked good cause to withhold consent to their adoption of the

child. We overrule the Robertses’ second issue.

                                       EXISTENCE OF CONSENT

         In their third issue, the Robertses argue the trial court abused its discretion in finding that

the Gomezes had obtained the Department’s written consent to adopt the child.

         The record shows that on the day of trial the Department objected to the Robertses’

adoption petition on the basis that they had failed to obtain the managing conservator’s consent as

required by section 162.010 (a) of the Texas family code. The Department further advised the trial

court that it could waive the consent requirement upon finding that the managing conservator’s

consent was being refused without good cause. See TEX. FAM. CODE ANN. § 162.010 (a). The trial

court overruled the Department’s objection and considered the good cause issue at trial. Neither

the Department nor the Robertses made a similar objection to the Gomezes’ adoption petition.

         As a prerequisite to preserving a complaint for appellate review, the record must show that

the complaint was made to the trial court by a timely request, objection, or motion. TEX. R. APP.

P. 33.1(a)(1). Here, the record shows that the Robertses failed to present this complaint to the trial

court by timely objection. Nothing is preserved for our review. See id. We overrule the Robertses’

third issue.

                                      MOTION FOR NEW TRIAL

         In their first issue, the Robertses argue the trial court erred in refusing to allow them to

present evidence at the motion for new trial hearing. The Robertses filed a motion for new trial,

claiming they were entitled to a new trial based on newly-discovered evidence.
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        As a general rule, a hearing on a motion for new trial is not mandatory. Landis v. Landis,

307 S.W.3d 393, 394 (Tex. App.—San Antonio 2009, no pet.). However, “when a motion presents

a question of fact upon which evidence must be heard, the trial court is obligated to hear such

evidence when the Motion for New Trial alleges facts, which if true, would entitle the movant to

a new trial . . . .” Hensley v. Salinas, 583 S.W.2d 617, 618 (Tex. 1979). To obtain a new trial based

on newly-discovered evidence, a party must establish (1) the evidence has come to its knowledge

since the trial, (2) its failure to discover the evidence sooner was not due to a lack of diligence, (3)

the evidence is not cumulative, and (4) the evidence is so material it would probably produce a

different result if the new trial were granted. Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813

(Tex. 2010).

        Here, the Robertses’ amended motion for new trial alleged that (1) the person who prepared

the social study had several conflicts of interest and (2) the social study did not comply with

various statutes and standards. The social study was admitted into evidence at trial without

objection.

        The trial court held a hearing on the amended motion for new trial. At the hearing, the trial

court asked the Robertses to identify the newly-discovered evidence. In response, the Robertses

did not explain the nature of the newly-discovered evidence. Instead, they told the trial court that

they would like to make an offer of proof to make the evidence known to the trial court and for

purposes of appeal. After taking a recess to review the motion, the trial court advised the Robertses

that the alleged conflicts of interest had been addressed at trial and were not newly-discovered

evidence. The trial court also warned that if the Robertses insisted on presenting evidence on

matters that had already been addressed they would be sanctioned. The Robertses acknowledged

that the conflicts of interest had been addressed at trial, but pointed to the allegations in their

motion that the social study did not comply with various statutes and standards. The trial court
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then explained to the Robertses that the social study’s compliance with various statutes and

standards was not newly-discovered evidence and could have been addressed at trial. In the end,

the Robertses presented no evidence at the hearing, and the trial court denied the amended motion

for new trial.

        The trial court committed no error. To obtain a new trial based on newly-discovered

evidence, the Robertses had to establish that (1) the evidence had come to their knowledge since

the trial, (2) their failure to discover the evidence sooner was not due to a lack of diligence, (3) the

evidence was not cumulative, and (4) the evidence was so material it would probably produce a

different result if the new trial were granted. See Williams, 313 S.W.3d at 813. The Robertses’

amended motion does not raise a fact question concerning any of these requirements. Furthermore,

the Robertses were unable to explain to the trial court the nature of the newly-discovered evidence

at the hearing. Under these circumstances, the trial court was not required to hear evidence on the

amended motion for new trial. We overrule the Robertses’ first issue.

                                            DUE PROCESS

        In their fourth issue, the Robertses argue the trial court violated their due process rights by

warning them that they would be sanctioned if they presented cumulative evidence at the motion

for new trial hearing. The Robertses raise their constitutional complaint for the first time on appeal.

Because the Robertses failed to first present this complaint to the trial court, it is not preserved for

our review. See TEX. R. APP. P. 33.1(a)(1) (providing that as a prerequisite to presenting a

complaint for appellate review, the record must show that the complaint was made to the trial court

by timely objection); Henning v. Henning, 889 S.W.2d 611, 615 (Tex. App.—Houston [14th Dist.]

1994, writ denied) (holding constitutional complaints were waived on appeal when appellant failed

to first present them to the trial court). We overrule the Robertses’ fourth issue.



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                                   CONCLUSION

The judgment of the trial court is affirmed.

                                               Karen Angelini, Justice




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