Memorandum Opinion by Justice Yarbrough, 07-25-00290-CV, January 30, 2026.
On appeal from the 233rd Judicial District Court, Gray County, Texas.
Synopsis
The Seventh Court of Appeals affirmed a trial court’s decree terminating a mother’s parental rights, holding that her sole challenge—the exclusion of evidence predating a 2018 divorce—was waived for failure to preserve error. Because the appellant failed to make an offer of proof regarding the excluded testimony, the appellate court was unable to conduct a harm analysis, rendering the evidentiary challenge fatal on appeal.
Relevance to Family Law
For the family law practitioner, this opinion serves as a critical reminder of the “preservation pitfall” regarding res judicata objections in modification or termination proceedings. Trial courts frequently impose “clean slate” evidentiary boundaries based on the date of the last final order. If a practitioner intends to introduce evidence of a parent’s prior conduct to establish a pattern—particularly relevant in Subsection (D) and (E) endangerment cases—they must not only object to its exclusion but also meticulously execute an offer of proof. Without a record of what the excluded evidence would have shown, the appellate court’s hands are tied, regardless of the potential merit of the evidence or the constitutional interests at stake.
Case Summary
Fact Summary
In a proceeding to terminate her parental rights to M.L.L., A.M.L., and B.F.L., the Mother sought to introduce evidence regarding events that occurred prior to a 2018 divorce decree. During a temporary hearing in April 2025, where the Mother appeared pro se, the Father’s counsel argued that any evidence predating the June 7, 2018, decree was res judicata. The trial court instructed the Mother accordingly, and she did not object or attempt to provide an offer of proof.
At the final trial in September 2025, the Mother was represented by counsel. The trial court reiterated its stance, stating, “Anything that happened before this prior court order is not admissible.” Despite the presence of counsel, the Mother’s side again failed to request a reconsideration of the ruling or, more importantly, to make an offer of proof. Following the trial, the court entered a judgment terminating the Mother’s parental rights.
Issues Decided
The primary issue was whether the trial court committed reversible error by excluding evidence occurring prior to the 2018 divorce decree and whether that issue was properly preserved for appellate review under the Texas Rules of Appellate Procedure and Rules of Evidence.
Rules Applied
The Court relied upon Texas Rule of Appellate Procedure 33.1, which requires a party to bring an error to the trial court’s attention through a timely motion, request, or objection to preserve the issue for appeal. Furthermore, Texas Rule of Evidence 103(a) dictates that a party may only claim error in a ruling to exclude evidence if the party informs the court of its substance by an offer of proof, unless the substance was apparent from the context. The Court also cited Li v. Pemberton Park Community Ass’n, reinforcing that pro se litigants must adhere to the same procedural rules as licensed attorneys.
Application
The Amarillo Court of Appeals focused entirely on the procedural deficiency of the Mother’s appeal. The court noted that at the temporary hearing, the Mother acknowledged the trial court’s instruction regarding the 2018 cut-off without making an argument for why the evidence should be admitted. This failure continued through the final trial. Even though the Mother was then represented by counsel, no formal offer of proof was made to the court.
The Court of Appeals emphasized that an offer of proof is not a mere formality; it is a substantive requirement that allows the reviewing court to determine whether the exclusion of evidence actually affected a substantial right of the party. Because the record was silent as to what specific facts the Mother intended to introduce from the pre-2018 period, the Court could not perform a harm analysis. The legal story here is one of waiver: by failing to build a record of the excluded testimony, the Mother effectively conceded the point for the purposes of appellate review.
Holding
The Court held that the Mother failed to preserve her evidentiary challenge for review. Under the strictures of Rule 33.1 and Rule 103(a), the absence of a request to revisit the evidentiary ruling or an offer of proof precluded the Court from assessing the merits of the exclusion.
In a notable footnote, the Court also addressed the mandate of In re N.G., which generally requires appellate courts to review Subsection (D) and (E) findings when challenged. However, because the Mother chose to limit her appeal strictly to the evidentiary ruling rather than challenging the sufficiency of the evidence supporting those specific grounds, the Court held it was not required to perform the heightened N.G. review. The trial court’s judgment was affirmed.
Practical Application
This case demonstrates that a trial court’s pretrial ruling or instruction to “not discuss” certain dates is functionally equivalent to an order sustaining an objection. To combat this, practitioners should:
- Challenge the Res Judicata Blanket: Argue that while a prior decree is res judicata as to the disposition of the children at that time, facts underlying that decree may still be relevant to show a continuing pattern of conduct or the “best interest” of the child in the current proceeding.
- The Informal Proffer: If the court excludes the evidence, immediately ask to make an offer of proof. An informal proffer (where counsel describes the testimony) is often sufficient, but a formal proffer (where the witness testifies outside the presence of the jury/court for the record) is safer.
Checklists
Preserving Excluded Evidence
- Object to the exclusion on the record.
- Obtain a clear, adverse ruling from the trial judge.
- Request to make an offer of proof (either by counsel’s statement or witness testimony).
- Ensure the court reporter is present and “on the record” for the offer.
- Identify the specific facts the witness would have testified to.
- Explain how the excluded evidence is relevant to a material issue (e.g., best interest, endangerment pattern).
Avoiding Waiver in Termination Appeals
- Review all pretrial instructions for “time-period” limitations.
- If a pro se client made a procedural error at a temporary hearing, file a formal motion to reconsider those evidentiary rulings once counsel is retained and before the final trial.
- Always include sufficiency challenges to Subsection (D) and (E) findings in the brief to ensure the appellate court conducts a full In re N.G. review.
Citation
In the Interest of M.L.L., A.M.L., and B.F.L., No. 07-25-00290-CV, 2026 Tex. App. LEXIS [Pending] (Tex. App.—Amarillo Jan. 30, 2026, no pet. h.) (mem. op.).
Full Opinion
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