Opinion issued February 13, 2014.




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                         ————————————
                             NO. 01-13-00062-CV
                           ———————————
                JENNIFER NICOLE COMPTON, Appellant
                                       V.
       TAMMY PFANNENSTIEL AND TIMOTHY REED, Appellees



               On Appeal from the County Court at Law No. 1
                         Galveston County, Texas
                    Trial Court Case No. 05-FD-0608


                                 OPINION

      In this dispute over the conservatorship of two children, the trial court

appointed their mother, father, and maternal grandmother as joint managing

conservators, further designating the grandmother as the person with the right to

designate the children’s place of residence. The mother appeals, contending that
that the trial court erred in (1) finding that her mother (the children’s grandmother)

has standing to assume joint conservatorship; (2) appointing the grandmother as

the conservator with the exclusive right to determine the children’s primary

residence; and (3) excluding testimony regarding the grandmother’s decision not to

seek custody of a third child. Finding no error, we affirm.

                                    Background

      At the September 2012 final hearing to determine conservatorship, Tammy

Pfannenstiel, the children’s grandmother, appeared and sought conservatorship of

J.R. and B.R., the children.      Jennifer Compton, the children’s mother—and

Pfannenstiel’s daughter—also sought conservatorship, and she challenged

Pfannenstiel’s standing to seek it. Timothy Reed, the children’s father, appeared

and testified. Reed agreed to Pfannenstiel’s joint conservatorship and the trial

court’s order determining the children’s visitation schedule.

      Pfannenstiel testified that Compton uses and sells drugs, places J.R. and

B.R. in dangerous situations, neglects them, does not adequately feed or care for

them, and does not meet their medical needs. Pfannenstiel further testified that

Compton had been arrested four times during the previous six months. A police

detective for the City of Santa Fe testified and confirmed the arrests, including

three for driving without a valid license and one for possession of a controlled

substance. At the September 2012 final hearing to determine conservatorship,

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Tammy Pfannenstiel testified that Jennifer Compton sells drugs, places J.R. and

B.R. in dangerous situations, neglects J.R. and B.R., does not adequately feed or

care for J.R. and B.R., and does not meet J.R. and B.R.’s medical needs.

Pfannenstiel further testified that Compton had been arrested four times during the

previous six months. Teresa Brewer, J.R. and B.R.’s paternal grandmother, also

testified that Compton neglected J.R. and B.R.

      Reed testified that Compton was not a fit mother, and did not adequately

feed the children. When the children visited him, they exhibited signs that they

had not been fed, and would hide food. He and Compton never married, but

shared a drug problem, and he was incarcerated for burglary for four years. He

testified that he could not physically take care of the children. He believed that the

children “would be better in a stable environment” and Pfannenstiel’s

conservatorship of the children “is necessary.” Two school counselors testified

that they shared the concern that Compton was not meeting the children’s

nutritional needs, and that the boys had an excessive number of school absences.

      Compton’s sister and father testified on Compton’s behalf. They denied that

Compton had a drug problem and neglected the children, but acknowledged her

lack of employment and housing. Compton briefly testified as well, and denied

that the children were underfed or neglected; she invoked her Fifth Amendment

right and refrained from testifying about the drug possession charge. The ad litem

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for the children reported to the trial court that the children desired to live with their

grandmother because she provided safe shelter and food.

      The trial court awarded joint conservatorship of J.R. and B.R. to

Pfannenstiel, together with Compton and Timothy Reed. See TEX. FAM. CODE

ANN. § 153.131 (West 2008). The trial court designated Pfannenstiel as the joint

conservator with the exclusive right to determine J.R. and B.R.’s primary

residence, within Galveston County and counties contiguous to it.               See id.

§ 153.134(b)(1). The court ordered that Compton’s visitation with J.R. and B.R.

be supervised for at least the first three months. Reed, the children’s father,

approved of the trial court’s conservatorship arrangement.

      Compton complained on appeal that the trial court did not file findings of

fact and conclusions of law in support of its conservatorship order. To address this

complaint, we abated the appeal, whereupon the trial court promptly supplemented

the record with the following:

      [T]he children’s mother, Jennifer Compton, is unfit to serve as the
      children’s sole managing conservator, or to have the children in her
      primary care, custody, or control. More specifically, the Court finds
      that Jennifer Compton is unfit because of her ongoing drug use and
      abuse, extreme recent neglect of the children [who are the] subjects of
      this suit, as well as her recent physical and verbal mistreatment of the
      children . . . that she had been arrested four times in the last six
      months, that she has not been able to hold a job; that she had no valid
      vehicle operator’s license; and that she is guilty of driving while her
      vehicle operator’s license was suspended.



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In its findings, the trial court quoted from the testimony of both grandmothers

about the children’s living conditions while in their mother’s custody, describing

that testimony as “compelling” support for its rulings.

                                    Discussion

I.    Standing

      Compton first challenges her mother’s standing to seek and obtain managing

conservatorship over the children; she contends that the trial court erred in

awarding managing conservatorship to a grandparent, over a mother’s objection.

      Standard of Review

      A party’s standing to seek relief is a question of law that we review de novo.

Tex. Dep’t of Transp. v. City of Sunset Valley, 146 S.W.3d 637, 646 (Tex. 2004).

In our review, we consider the evidence in a light favorable to the trial court’s

ruling. In re McDaniel, 408 S.W.3d 389, 397 (Tex. App.—Houston [1st Dist.]

2011, orig. proceeding). In a child custody suit, “[a] party seeking relief must

allege and establish standing within the parameters of the language used in the

statute.” Id. (quoting Smith v. Hawkins, No. 01-09-00060-CV, 2010 WL 3718546,

at *2 (Tex. App.—Houston [1st Dist.] Sept. 23, 2010, pet. denied) (mem. op.)). A

party that seeks grandparent standing in a suit affecting the parent-child

relationship is statutorily required to establish standing with “satisfactory proof.”

TEX. FAM. CODE ANN. § 102.004(a) (West 2008). “Satisfactory proof” is proof

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established by a preponderance of the evidence as the facts existed at the time the

suit or intervention was filed. McDaniel, 408 S.W.3d at 397. If a plaintiff fails to

establish proper standing, then the trial court must dismiss the suit. Id.

      Analysis

      A grandparent has standing to request the managing conservatorship of a

child if the trial court finds that conservatorship is necessary because, otherwise,

“the child’s present circumstances would significantly impair the child’s physical

health or emotional development.” TEX. FAM. CODE ANN. § 102.004(a)(1) (West

2008). At the hearing, Pfannenstiel proffered evidence of Compton’s drug use,

recent criminal arrests, and extreme neglect of her children during the preceding

eight months. Reed and his mother concurred in the proposed conservatorship

arrangement.     Because the record supports the trial court’s finding that the

children’s present circumstances would significantly impair their physical health

and emotional development, it did not err in concluding that their maternal

grandmother had standing to seek to become a joint managing conservator of the

children. See id.

      Compton responds that Pfannenstiel decided not to seek immediate

modification of the trial court’s temporary orders in the case, and observes that the

trial court had denied Pfannenstiel’s initial request for grandparent conservatorship

eight months earlier. According to Compton, the trial court’s decision on the

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temporary orders, and Pfannenstiel’s decision not to seek modification of them

sooner, demonstrates that the children’s environment was not harmful while they

were in her primary care. We disagree. Compton’s neglect and mistreatment of

her children during the period following entry of those orders significantly

impaired the children’s physical health and emotional development, commensurate

with the standard required for Pfannenstiel to gain the standing to seek grandparent

conservatorship at the final hearing.

II.   Exclusion of evidence

      Compton also challenges the trial court’s decision to exclude testimony

related to conservatorship of another of her children, W.M. Reed is not the father

of W.M. Compton claims that the trial court should have admitted additional

evidence about her mother’s decision not to seek conservatorship of that child.

Compton, however, did not preserve this contention for appellate review.

      To preserve any complaint against a trial court’s exclusion of evidence, the

complaining party must demonstrate the substance of the excluded evidence

through an offer of proof or bill of exception unless the substance of the evidence

is apparent from the context. TEX. R. EVID. 103(a)(2); see also Sink v. Sink, 364

S.W.3d 340, 347 (Tex. App.—Dallas 2012, no pet.); Fletcher v. Minn. Mining &

Mfg. Co., 57 S.W.3d 602, 606 (Tex. App.—Houston [1st Dist.] 2001, pet. denied);

Akukoro v. Akukoro, No. 01-12-01072-CV, 2013 WL 6729661, at *6 (Tex. App.—

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Houston [1st Dist.] 2013, no pet.) (mem. op.) (“While the reviewing court may

sometimes be able to discern from the record the general nature of the evidence

and the propriety of the trial court’s ruling, it cannot, without an offer of proof,

determine whether exclusion of the evidence was harmful.”).

      Compton neither made an offer of proof before the trial court nor filed a bill

of exception. The testimony relating to Pfannenstiel’s decision about W.M.’s

conservatorship is limited:

      Compton’s attorney: Okay. Are you concerned about the health, safety and
      welfare of [W.M.]?

      Pfannenstiel: Definitely.

      Compton’s attorney: You haven’t asked for custody of [W.M], have you?

      Pfannenstiel: No. I do not have standing to go after him.
      ...

      Compton’s attorney: You haven’t asked for custody of [W.M.], have you?

      Pfannenstiel: No, not at this time.

      Compton’s attorney: Okay. Do you think you have standing to ask for
      custody of [W.M.]?

      Pfannenstiel: I do not under the law. I know what I am told.

The trial court thereafter sustained Pfannenstiel’s relevancy objections, ending

Compton’s inquiry. Compton contends further evidence about the decision was

relevant because Pfannenstiel would have sought custody of W.M., too, if

Pfannenstiel sincerely believed that the children’s circumstances impaired their
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physical health or emotional development.             Compton, however, did not

demonstrate the substance of Pfannenstiel’s excluded testimony; the limited record

regarding the stricken testimony belies Compton’s assertion that Pfannenstiel

would have testified that Compton was a fit mother to W.M.              We hold that

Compton has failed to preserve her evidentiary challenge.

III.   Conservatorship

       Beyond standing, Compton further contends that the trial court’s

appointment of her mother as a joint managing conservator of Compton’s children

is an abuse of its discretion, because parents are presumptively the managing

conservators of their children.

       Standard of review

       Trial courts have wide discretion with respect to conservatorship, control,

possession, and visitation matters involving the child. Gillespie v. Gillespie, 644

S.W.2d 449, 451 (Tex. 1982); In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). We

review a trial court’s decision on conservatorship matters for an abuse of

discretion, and reverse the trial court’s order only if we determine, from reviewing

the record as a whole, that the trial court’s decision was arbitrary and unreasonable.

Patterson v. Brist, 236 S.W.3d 238, 239–40 (Tex. App.—Houston [1st Dist.] 2006,

pet. dism’d) (citing Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.—Houston

[1st Dist.] 2001, no pet.)). A court abuses its discretion if it acts without reference

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to any guiding rules and principles. Downer v. Aquamarine Operators, Inc., 701

S.W.2d 238, 241–42 (Tex. 1985).

      Analysis

      A trial court must appoint a child’s parents to be joint managing

conservators, or one parent as the sole managing conservator, unless it concludes

that “appointment of the parent or parents would not be in the best interest of the

child, because the appointment would significantly impair the child’s physical

health or emotional development.” TEX. FAM. CODE ANN. § 153.131 (West 2008).

It is unsettled whether the statute applies to the appointment of a non–parent in

addition to both parents. We hold that it does; in the ordinary case, parents should

be free from legal interference in the parent–child relationship. The statute reflects

this principle. See Critz v. Critz, 297 S.W.3d 464, 471 (Tex. App.—Fort Worth

2009, no pet.) (holding that statute applies “when a non–parent seeks managing

conservatorship in lieu of or in addition to both parents.”); In re De La Pena, 999

S.W.2d 521, 534–35 (Tex. App.—El Paso 1999, no pet.) (holding that statute

applies when trial court jointly appoints non–parent and parent as managing

conservators and designates non–parent as conservator with exclusive right to

determine child’s primary residence).

      The evidence in this case satisfies the statutory threshold, including evidence

of Compton’s drug use, recent criminal arrests, and extreme neglect of her children

                                         10
while in her care; the trial court reasonably could find that the record demonstrated

significant impairment of the children’s health and emotional development. The

father acceded to the necessity of the grandparent conservatorship in the children’s

interest.   We hold that the trial court was within its discretion in naming a

grandparent as a joint managing conservator to protect the children’s physical

health and emotional development.

                                       Conclusion

         We hold that the trial court did not abuse its discretion in appointing

Pfannenstiel as a joint managing conservator with the exclusive right to determine

the children’s primary residence. We therefore affirm the judgment of the trial

court.




                                              Jane Bland
                                              Justice

Panel consists of Justices Keyes, Bland, and Brown.




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