in the Interest of A.B.O. and E.B.O., Children
06-14-00071-CV
| Tex. Crim. App. | Mar 16, 2015Background
- Divorce decree (2004) named parents joint managing conservators; mother had right to designate primary residence. Grandmother (McMurtry) later filed to modify and be conservator after concerns about mother’s drug use and children living with grandmother.
- CPS investigated mother in late 2012; investigation was not completed because grandmother continued caring for the children and both parents agreed mother should have only supervised visitation.
- McMurtry petitioned on Dec. 3, 2012, alleging modification was necessary because continued parental appointment would significantly impair the children’s physical or emotional development; temporary orders gave McMurtry the right to designate primary residence.
- At a non‑jury final hearing (April 10, 2014) the trial court appointed McMurtry and father (O’Dell) as joint managing conservators and gave McMurtry the right to designate the children’s primary residence in Lamar County; mother was limited to supervised possessory conservatorship.
- Father appealed, arguing among other things that his constitutional due‑process rights were violated because the parental presumption should control standing and that findings lacked evidentiary support; appellee argues standing and best‑interest findings were adequately supported.
Issues
| Issue | Plaintiff's Argument (McMurtry) | Defendant's Argument (O’Dell) | Held |
|---|---|---|---|
| 1. Due process / parental presumption application | No constitutional violation; issue waived below; parental‑presumption does not determine standing | Trial court should have applied parental presumption; its nonapplication violated father’s rights | Court affirmed that argument is waived and Supreme Court precedent separates standing from parental presumption (no due‑process reversal urged) |
| 2. Standing under Family Code (§102.003/§102.004) | McMurtry had actual care, control, possession for >6 months and showed circumstances would significantly impair children | Father contested standing | Trial court’s standing finding supported by evidence (children lived with grandmother since April 2012; parents agreed mother lacked custody) |
| 3. Grandparent must overcome parental presumption / significant impairment | Parental presumption does not apply in modification proceedings; alternatively, evidence showed significant impairment if grandmother denied possession | Father argued presumption should apply and impairment not shown | Modification context controls: presumption inapplicable; even if applied, evidence (counselor and children interviews) supported significant emotional impairment finding |
| 4. Best‑interest custody modification and sufficiency of findings | Trial court reasonably exercised discretion; Holley factors favor grandmother as primary caregiver and stable placement | Father argued abuse of discretion, factual and legal insufficiency of key findings | Abuse‑of‑discretion review: record (testimony, counselor reports, in‑chambers child interviews) supplies probative evidence; trial court’s decision was reasonable and affirmed |
Key Cases Cited
- Shook v. Gray, 381 S.W.3d 540 (Tex. 2012) (standing for third‑party suits is determined without relying on the parental presumption)
- In the Interest of V.L.K., 24 S.W.3d 338 (Tex. 2000) (parental presumption applies to original conservatorship proceedings and generally not to modifications)
- Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) (non‑exclusive list of factors for determining child’s best interest)
- In re J.A.J., 243 S.W.3d 611 (Tex. 2007) (custody determinations reviewed for abuse of discretion)
- BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789 (Tex. 2002) (conclusions of law are reviewed de novo)