In the Interest of J.B., B.B. and M.B., Jr., Children--Appeal from 57th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00154-CV

IN THE INTEREST OF J.B., B.B., AND M.B., JR.

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2004-CI-11693

Honorable Barbara Nellermoe, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: November 2, 2005

AFFIRMED

This is a restricted appeal from a final order naming appellees, Ingrid Bethel-Constable and Colin Constable, sole managing conservators of three minor children. The trial court entered the final order against the parents, Koshiana Miller and Mario Bethel, who were named possessory conservators of the children. Appellants, Sheila Tillman and Nyoka Bethel-Warren, the paternal aunt and grandmother of the children, were not served with citation or any other notice of the proceeding and now file this restricted appeal. In several issues, appellants assert the evidence is both legally and factually insufficient to support the trial court s custody determination, including a finding of jurisdiction; the trial court failed to make a record of the proceedings; and appellees failure to name appellants as interested parties is error. Because we find no error on the face of the record, we affirm.

STANDARD OF REVIEW

A direct attack on a judgment by restricted appeal must: (1) be brought within six months after the trial court signs the judgment; (2) by a party to the suit; (3) who did not participate in the actual trial; and (4) the error complained of must be apparent from the face of the record. Tex. R. App. P. 26.1(c); Tex. R. App. P. 30; Norman Communications v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997). A restricted appeal affords an appellant a review of the entire case; the same scope of review as in an ordinary appeal. Norman Communications, 955 S.W.2d at 270. The only restriction on the scope of restricted appeal review is that the error must appear on the face of the record. Id.

There is no dispute appellants have brought this restricted appeal within six months and they did not participate in the actual trial. To satisfy the fourth requirement, error must be apparent from the face of the record. // The face of the record, for purposes of restricted appeal review, consists of all the papers on file in the appeal, including the reporter s record. DSC Fin. Corp. v. Moffitt, 815 S.W.2d 551, 551 (Tex. 1991).

DISCUSSION

In their first and second issues, appellants claim the evidence is legally and factually insufficient to support a finding of jurisdiction over the parties and children who are the subject of this suit. As a general rule where no reporter s record is present in the record, this court may conclude that every fact necessary to support the judgment, within limits of the pleadings, was proved at trial. Jaramillo v. Liberty Mut. Fire Ins. Co., 694 S.W.2d 585, 587 (Tex. App. Corpus Christi 1985, writ ref d n.r.e.); see also Simon v. York Crane & Rigging Co., 739 S.W.2d 793, 795 (Tex. 1987). The pleadings allege the children have lived continuously in Bexar County for over six months prior to the filing of the petition, and no evidence in the record contradicts this allegation. We presume the evidence before the trial court was adequate to support the trial court s finding that it had jurisdiction over the children. See Simon, 739 S.W.2d at 795. Thus, the face of the record does not indicate the trial court lacked jurisdiction over the children.

In their last issue, appellants claim they were interested parties to the lawsuit and did not receive notice of the suit or service of citation. Generally, under the Texas Family Code, the following are entitled to service of citation on the filing of a petition in an original suit: (1) a managing conservator; (2) a possessory conservator; (3) a person having possession of or access to the child under an order; (4) a person required by law or by order to provide for the support of the child; (5) a guardian of the person of the child; [or] (6) a guardian of the estate of the child.... Tex. Fam. Code Ann. 102.009(a)(1-6). We agree that lack of notice to appellants is apparent on the face of the record. To establish that this lack of notice is error, appellants rely on Letters of Temporary Guardianship issued December 5, 2000, which are not part of the record, but attached to the appellants Docketing Statement for a Civil Appeal. However, evidence not before the trial court prior to final judgment may not be considered in a writ of error proceeding. Alexander v. Lynda s Boutique, 134 S.W.3d 845, 848-49 (Tex. 2004) (noting that if extrinsic evidence is necessary, it should be presented in a motion for new trial or a bill of review). Therefore, there is nothing in the record to show that the appellants were interested parties and entitled to service of citation. // Accordingly, error is not apparent on the face of the record.

CONCLUSION

We overrule appellants issues on appeal and affirm the trial court s judgment.

Sandee Bryan Marion, Justice