in the Interest Of: D.S.B. and K.A.B.
05-14-00950-CV
| Tex. App. | Aug 22, 2016Background
- Father (Sidney) and Mother are parents of two children; Aunt (Sharon) has cared for the children since they were toddlers after CPS involvement and Father’s incarceration.
- Aunt obtained temporary sole managing conservatorship while Father was in prison; later the trial court made that appointment permanent, denied Father possessory conservatorship, and required completion of parenting, counseling, and a batterer’s intervention program before supervised visits.
- The trial court also enjoined Father from coming within 500 feet of Aunt’s home and from posting comments about Aunt or the children on Facebook.
- Evidence at trial included CPS records documenting Father’s history of domestic violence and criminal convictions, Facebook posts showing antagonism toward women and Aunt, Aunt’s testimony about Father’s inappropriate phone conduct and unstable associates, and testimony that the children were thriving in Aunt’s stable home.
- Father argued (pro se) the evidence was insufficient, that the judge violated judicial conduct canons, that Aunt had changed her phone number (contempt), and that the children lived in unsafe conditions; he also asserted parental superior right to custody.
- The Court of Appeals affirmed, holding the trial court did not abuse its discretion in conservatorship, program requirements, or injunctions, and declined to grant relief based on alleged judicial-code violations.
Issues
| Issue | Plaintiff's Argument (Father) | Defendant's Argument (Aunt/Trial Court) | Held |
|---|---|---|---|
| Whether evidence supports award of sole managing conservatorship to nonparent | Father: he has a presumptive superior right as parent; he is stable, financially able, has suitable housing, and CPS previously closed a case | Aunt/Trial Ct: children lived with Aunt since toddlerhood; credible evidence of Father’s past domestic violence, criminal history, unstable associates, and recent hostile social-media conduct | Court: Affirmed — record supports finding that appointing Father would significantly impair children’s development and not be in their best interest |
| Whether father should be denied possessory conservatorship and required to complete programs before visitation | Father: assaults were remote (2009) and he has since complied with services; requirement is oppressive | Aunt/Trial Ct: history of abuse creates rebuttable presumption against unsupervised access; programs and restrictions protect children’s welfare | Court: Affirmed — credible evidence of past abuse justified denial of possession and conditional supervised visitation pending completion of programs |
| Whether injunction barring Father from coming within 500 feet of Aunt’s home is supported | Father: unreasonable and impractical given proximity of family residences; no evidence supports such a restriction | Aunt/Trial Ct: restriction necessary to prevent contact and protect children given Father’s conduct and communications | Court: Affirmed — restriction was within trial court’s discretion to protect children’s welfare |
| Whether trial judge’s alleged violations of the Code of Judicial Conduct require reversal | Father: judge acted improperly (bias, acting as own attorney, etc.) | Aunt/Trial Ct: Code violations are enforced by judicial conduct commission, not a basis for reversal absent other reversible error | Court: Affirmed — Code allegations do not automatically warrant reversal; issues belong to enforcement body and Father failed to show reversible error |
Key Cases Cited
- Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990) (nonparent must show awarding custody to parent would significantly impair child)
- Danet v. Bhan, 436 S.W.3d 793 (Tex. 2014) (affirming award of managing conservatorship to nonparents based on child bonding and parent’s instability)
- City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency review standards)
- Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) (trial court given wide latitude in child best-interest determinations)
- In re M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008) (factors relevant to best-interest analysis)
- In re M.A.M., 346 S.W.3d 10 (Tex. App.—Dallas 2011) (abuse-of-discretion framework in conservatorship appeals)
- Merritt v. Davis, 331 S.W.3d 857 (Tex. App.—Dallas 2011) (judicial-conduct code is not an automatic basis for reversal)