*2 with the apparently did not concur MORRISS, C.J., Before CARTER outcome. MOSELEY, JJ. hearing but Between the date of the incor- entry the of the order which before OPINION grandmother agreement, the the porated Opinion by Justice MOSELEY. petition affecting filed an suit D.W.J.B., relationship of the child grandmother parent-child the The maternal July controversy in cause number on subject separate suit, dismissal She asked court to order appeals this the trial court’s re- support obligations and relation- fulfill his child affecting parent-child of her suit restraining temporary grandmother argues quested ship. preventing Spencer “[dis- her to from: failing court erred in to allow peace child or of another turbing of her present evidence to dismissal “[mjaking remarks re- recently disparaging party”; Because the trial court had suit. or with- Petitioner in parent- garding presence modifying entered an order child”; or hearing range of the relationship agree- to an pursuant 12 hours “[cjonsuming alcohol within the parents ment entered the child’s cause, during period court determined before separate though Even her burden or access to child.” had not met (in parties’ accord with the the Texas the order under Section 156.102 of to continue required Spencer affida- agreement) her contentions Code gov- coverage insurance under vit that environment medical present child’s program ernmental medical assistance that the child’s environ- may endanger ment plan physi- health for the pre- significantly cal health or impair asked for an order be *3 development; child’s emotional “[e]anceling[,] altering, failing vented from pay premiums, any to manner affect- person that the who has the ex- ing present any the level of coverage of right designate clusive to the primary child.” policy insuring health insurance the of person residence the is the Finally, grandmother the asked the court seeking or consenting to the modifica- “excluding to enter an order Respondent the tion and modification is in the best possession or access to child.” child; of the of interest the (3) that (a) person the who has the ex- may modify The court an right clusive to the designate primary the of provides appointment for of the voluntarily residence child has child, conservator of a the provides relinquished primary the care and of conservatorship, terms and conditions possession of for at least six for of provides possession or that the months and the modification is in the if access to a child modification would be best interest of the child. in the best interest of the child and: (e) deny The shall the relief (1)the child, circumstances of the sought and refuse to schedule a hearing conservator, party or other affected for modification under this section un- by materially the order have and sub- determines, less the court on the basis changed of: stantially since the earlier affidavit, adequate of the that facts to (A) of the date the of the rendition an support allegation listed in Subsec- order; or (b) are tion stated in the affidavit. If (B) the date of the of a signing the the court determines that facts stat- mediated or collaborative settle- law adequate ed to an support allegation, are ment on agreement which the order shall the court set time and based.... hearing. the (West § Supp. Tex. Fam.Code Ann. 156.101 156.102 Supp. Tex. Fam.Code Ann. 2011). 2011). Section of the 156.102 Texas relief, request To the Code states: grandmother filed an affidavit claiming (a) seeking modify If a suit the “deeply that she was concerned for the designation person having the safety complain- welfare” of the right designate primary exclusive ing Spencer’s “lengthy history” criminal residence than of child filed not later (which charges said she included of at- one earlier of after the the date child, failure tempted sexual assault of a rendition of order or the date offender, burglary a sex register as of a signing of a mediated or collabora- criminal building, trespass, driving while agreement tive law settlement on intoxicated, prohibited of a based, person filing order is went weapon). on to suit shall execute attach an affidavit say she to be believed an (b). as provided by Subsection alcoholic, noting recently the court
(b) contain, along The affidavit must him not to drink ordered facts, at supporting presence, least one and stated that child “has following allegations: since me that his father has tried to told motion, and a hear- cup to the drinking his beer out
trick him Spencer’s motion to dismiss. ing was set he forgets gets drunk and until he —then in front of him.” of the can drinks it out (and hearing, argued At counsel reciting continued remembered) grand- trial court in three had been involved hearings had been at both mother accidents, recent one the most automobile held tree although he ran into a lone out that there been pointing “when stated, “When- intervene the ex- pasture.” ample opportunity She
middle of lawsuit, did not isting apparently on the talks his father child] ever [the *4 argued that choose to do so. Counsel eyes twitching and he phone, his start entered until order wasn’t “[w]hile has very child] nervous. [The becomes 20th, was, that July whatever date wish told me that he doesn’t repeatedly in agreement was reached court at actual father’s live at his residence.” month that. So there are least a before further, affida- Going things that some issues and some recited that had heard vit also she grandmoth- has not and [the heard (1) “whips with a Spencer child that testify opportunity has not had an er] (2) seat,” paddle his threatened on story.” tes- and tell seeing him from his depriving child with what while was aware the suit tified he came from school until “home mother previ- on those and was courtroom star,” and him to the gold a took with occasions, she “had no idea that she ous (adding that Bar in Oklahoma River chance any was would—that there Bar, River heard of the [she] what “[f]rom daughter] lose [the child].” would [her children”). She said not a granted court the motion to The trial dis- Spencer’s that the child had told her that miss. “re- girlfriend mean called him was On appeal, tarded,” child” and syndrome and “down’s in complains the trial court erred rolling the child “mimicked
that while failing to allow evidence presentation he had related to her his cigarette,” We review a prior to dismissal of her suit. get taken him to father had him with custody, regarding court’s decision information passed along She “weed.” control, matters involving “great grandmother told under an of discretion stan abuse night, told her that [the me that last child] Gillespie Gillespie, 644 dard. v. S.W.2d prayed he ‘Jesus was on his side—that 449, (Tex.1982); Turnage, 451 v. 856 Voros with the they whipped church that when 759, (Tex.App.-Houston [1st S.W.2d 760-61 ” paddle, Finally, the it wouldn’t hurt.’ denied). 1993, A trial writ Dist.] con- grandmother expressed that she was ruling its abuses its discretion when admin- cerned about medications unreasonable, arbitrary, or without refer grades, and his istered to any legal princi rules or guiding ence “anger issues.” 24 Honeycutt, K-Mart v. ples. Corp. (Tex.2000); 357, 360 Holtzman v. S.W.3d response, along filed his Holtzman, 729, 734 (Tex.App.- 993 S.W.2d argued motion motion to dismiss. The denied). 1999, Texarkana pet. pending this same action was cause and that a final order in whether affi separate “To determine 30, sufficient, July the trial court had to that case was entered on davit was and make at the facts therein pursuant The two cases were look sworn consolidated
781
whether,
true,
Burkhart,
an initial
if
determination
harmed. See
960 S.W.2d at
justified
these facts
the mo
324.2
portion
of the grandmother’s
Graves,
modify.”
tion to
Graves v.
916
complaining
of Spencer’s criminal
S.W.2d
69 (Tex.App.-Houston
history
[1st
car
past
accidents did not sup-
1996, writ);
no
v.
Dist.]
Burkhart
Burk
port the idea that the
child’s
envi-
hart,
(Tex.App.-Hous
ronment
endanger
denied).
1997, pet.
ton [1st Dist.]
“The health
significantly
impair his emotional
philosophical
underpinning
section
Rather,
development.
facts per-
these
Legislature
156.102 is clear: the
intended
tained
Spencer’s
character and
promote stability
the conservatorship
conduct,
instances of
which could have oc-
Burkhart,
of children.”
Next, the We that affidavit must contain sworn conclude the trial court did not showing finding facts that the child is abuse its that discretion Statements, example, frequent smoking presence "[f]rom what of the child Bar, [she] heard of River it is not a aggravated heightened sensitivity which a children,” Insufficient, too, recitations statements respiratory distress. is the allegedly paternal made the child his employment, reference to lack the mother’s great-grandmother. and to receipt payments, welfare off- portion payments. set the child 2. "The unadorned statement adults The father not state does justify smoke in the house is too nebulous unclothed, hungry, or otherwise harmed as a hearing. modification The father would have Burkhart, result.” S.W.2d at pointed specifically to swear facts that health, endangerment of the such child's as hearing grandmother’s on the allege court set affidavit failed demonstrating that to the petition facts without reference
personally known en- conservatorship environment order. So in this previous significantly instance, health or court danger though even development. impair emotional it cannot temporary hearing, scheduled so, found implicitly it by doing be said judgment. We affirm the court’s attack, facts were to allow an sufficient by Justice Concurring Opinion year, previous conserva- within one of the CARTER. torship CARTER, Justice, concurring. judgment.
JACK I concur to schedule The trial court shall refuse filed of an action
hearing for modification unless
within one affidavit,
determines, the basis of an required by the statute facts 156.102(c)
exist. Tex. Fam.Code Ann. 2011). Scheduling such Supp. by the trial implicit finding is an LTD., DATA, Appellant, SEITEL facts are adequate shown v. though it hearing necessary make the even *6 previous is within one from the SIMMONS, Ralph Ralph as trustee of (Tex. A.L.W., re No. 356 In Angela Laura Simmons Simmons h.). 2011, A no dif App.-Texarkana pet. Trust, Family Living Appellee. hearings on apply ferent rules set of No. 06-11-00041-CV. proceedings; temporary ex parte parent orders to from exclude Texas, Appeals may only granted access be Texarkana. it facts clearly appears when 16, Nov. Submitted: 2011. pleading shown sworn injury, irreparable immediate and Decided: Jan. 2012. loss, notice damage will result before Rehearing Feb. Overruled can be served. Ann. Tex. Fam.Code (c)(3) 2008); 105.001(b), Tex.R. P. Civ.
Here, filed another relationship affecting parent-child
suit conservatorship very recent-
after
ly parents been agreed upon filing approved by the trial court. In seeking temporary
this new suit inaccu- grandmother alleged, con-
rately, conservatorship that no reading
trolled. From a new
petition, appeared this was previ- having relationship
action no The trial conservatorship proceeding.
ous