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Castanon v. Gomez-Valles

Court of Appeals of Texas, Third District, Austin

May 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

          Before Justices Puryear, Pemberton, and Bourland

          MEMORANDUM OPINION

          DAVID PURYEAR, JUSTICE

         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 [1]

         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.
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 ...

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