ACCEPTED 13-15-00099-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/21/2015 10:10:42 AM CECILE FOY GSANGER CLERK Cause No. 13-15-00099-CV IN THE COURT OF APPEALS FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT CORPUS CHRISTI, TEXAS _____________________________________________________
IN THE INTEREST OF L.D.J. III, A.Y.J., W.F.J. and C.J.,
CHILDREN _____________________________________________________
Appealed from the 206 th Judicial District Court of Hidalgo County, Texas Hon. Rose Guerra Reyna, Presiding ___________________________________________ APPELLANT’S BRIEF ON THE MERITS ___________________________________________
ORAL ARGUMENT REQUESTED
PETITIONER/APPELLANT: Blanca E. Jones COUNSEL: Francisco Guerrero, II SBN 24047588 PENA GARCIA GUERRERO PLLC 900 Kerria Avenue McAllen, TX 78501 t: 956.948.2221 f: 888.422.6821 fg@pgglex.com Counter-Petitioner/APPELLEE: Helen M. Jones COUNSEL: Roel “Robie” Flores The Firm of Roel “Robie” Flores 3331 N. Ware Rd Mc Allen, Texas 78501 t: 956.631.7188 f: 956.631.7268 robiefloreslaw@att.net 2
IDENTITY OF THE PARTIES…………………………………..……. 2 TABLE OF CONTENTS……………………………………… ……..… 3 TABLE OF AUTHORITIES…………………………………………... 4 RECORD REFERENCES…………………………………………..….. 5 STATEMENT OF THE CASE……………………………………….... 6 STATEMENT REGARDING ORAL ARGUMENT ………………….. 7 ISSUES PRESENTED………………………………………………….. 8 STATEMENT OF FACTS…………………………………….............. 9 SUMMARY OF THE ARGUMENT………………………………...… 13 ARGUMENT………………………………………………….………... 16 PRAYER……………………………………………………………..… 39 APPENDIX…………………………………………………………..… 41
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Brigham v. Brigham , 863 S.W.2d 761 (Tex.App.- Dallas, 1993)………………………… 35 Chavez v. Chavez , 148 S.W. 3d 449 (Tex.App.-El Paso, no pet.)……………………… 31, 34 Critz v. Critz , 297 S.W.3d 464 (Tex.App.—Fort Worth 2009, no pet.)…. 17, 18, 24, 25, 29, 34 Danet v. Bhan, 436 S.W.3d 793 (Tex. 2014)………………………..…………….. 34 Gray v. Shook, 329 S.W.3d 186 (Tex.App.-Corpus Christi 2010)…………… 30, 31, 36, 37, 38 In re S.A.H, 420 S.W.3d 911 (Tex.App.-Houston [14 th ] Dist., 2014)………….. 19, 22, 26 In re S.M.D, 329 S.W.3d 8 (Tex.App.-San Antonio, 2010)(reh’g overruled, rev. dism’d)…34 Lewelling v. Lewelling , 796 S.W.2d 164 (Tex.1990)……………………………………….. 29, 35, 37 May v. May 829 S.W.2d 373 (Tex.App.-Corpus Christi 1992, writ denied)……. 30, 36, 37 Shook v. Gray , 381 S.W.3d 540 (Tex. 2012) ………………………………………. 36, 37
T EX . F AM . C ODE A NN . §153.002…………………………………….. 36 T EX . F AM . C ODE A NN . §153.131……………………………………...23, 28, 34, 37 T EX . F AM . C ODE A NN
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CR_ Clerk’s Record 1 RR_ Volume one of Recorder’s Record 2 RR_ Volume two of Recorder’s Record 3 RR_ Volume three of Recorder’s Record Ex. P-_ Petitioner/Appellant’s exhibit to the Recorder’s Record Ex. CP-_ Counter-Petitioner/Appellee’s exhibit to the Recorder’s Record
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This appeal is taken from a final order rendered in the 206 th Judicial District Court of Hidalgo County in an action filed as a Suit Affecting Parent Child Relationship. (CR p.110). The final order in this matter was rendered after a bench trial held on December 17 th and 18 th , 2014. The Court signed Findings of Fact and Conclusions of Law on January 28, 2015. (CR p.108). Appellant filed her Notice of Appeal on February 17, 2015. (CR p.132).
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This case involves the conservatorship of four children. The trial court appointed paternal grandmother as sole managing conservator of these children, instead of their biological mother.
The mother of these children challenges, in this appeal, that the trial court abused its discretion because the evidence is legally and factually insufficient to support the trial court’s judgment as to rebuttal of the statutory presumptions in Tex. Fam. Code §§151.131 and 151.373. Appellee failed to prove that Appellant had 1.) voluntarily relinquished actual care, control and possession of the children to Appellee for a period of one year or more; and/or 2.) that it would not be in the children’s best interest to have their mother appointed sole managing conservator because such appointment would significantly impair their physical health and emotional development.
Since neither the Family Code nor case law provide bright-line definitions of the term “voluntarily relinquishment” or the term “significant impairment”, resolution of cases such as these is fact intensive analysis. Due to the Appellant’s challenge of the legal and factual sufficiency of the evidence in this matter, oral argument would be most beneficial for a clear presentation of the facts and to the court’s understanding of the facts in this case.
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The trial court abused its discretion in appointing Appellee as the sole managing conservator of the children and Appellant the possessory conservator. I. The evidence is legally and factually insufficient to support the court’s
Finding of Fact No. 2. III. The evidence is legally and factually insufficient to support the court’s
Finding of Fact No. 4. III. The evidence is legally and factually insufficient to support the court’s
Finding of Fact No. 5 that Appellee rebutted the statutory parental presumption in Tex. Fam. Code §153.131. IV. The evidence is legally and factually insufficient to support the court’s
Finding of Fact No. 5 that Appellee rebutted the statutory parental presumption in Tex. Fam. Code§153.373. V. The court erred in its Conclusion of Law – Conservatorship because the
evidence is legally and factually insufficient to support the conclusion that Appellee be appointed sole managing conservator of the children and Appellee should be appointed possessory conservator.
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a. Appellant was married to Appellee’s son, Larry Dean Jones, Jr.(hereinafter “Dean” or “Appellant’s husband”), on April 29, 2011. Prior to their marriage, three children were born to Appellant and Dean. (2RR p.102, line 19-23). The children lived with Appellant prior to her marriage to Dean. (2RR pp.94-102). On or about December 2012, Appellant left the United States for Mexico to complete the immigration process which she and her husband had initiated. (CR p.15; 2RR p.111; Ex. P-4). b. On or about January 2013, Appellant was denied re-entry into the United States and had to remain in Mexico pending a new visa appointment, because the proper documentation regarding her pregnancy with the child C.J. had not been submitted. (CR p.15; 2RR p.111; Ex. P-4). The youngest child, C.J., was born while Appellant resided in Mexico awaiting a subsequent visa appointment. (2RR p.119). Meanwhile, her husband remained in the United States managing their affairs in her absence. (2RR pp.38-39 and 46; Ex. P-4). c. On or about December 21, 2012, Appellee took possession of three of the children the subject of this suit. (3RR p.35). Appellee had possession of the children for the time period that Appellant was to be outside the United States awaiting subsequent visa interview for her and C.J.. (2RR p.104, line 7-25 and
9 3RR p.37, line 9-25). On or about March 2014, Appellant lawfully re-entered the United States with her youngest child, C.J. (2RR p.119; Ex. P-3). d. Immediately upon her return, Appellant and Dean made plans to retrieve their children from Fredericksburg, Texas where the children were living with Appellee. (2RR p.119;). On or about April 2014, Appellant and Dean traveled to Fredericksburg, Texas to reunite the family and return with the children to McAllen, Texas. (2RR p.p. 120-121). Appellant, Dean, and Appellee subsequently entered into an agreement to allow the children L.D.J. III and W.F.J. to spend time with their grandmother, Appellee, until the end of the school year. (2RR p.p. 121) The agreement called for the children to return to McAllen, Texas so they could live with Appellant, her husband, and the other children A.Y.J and C.J permanently. (2RR p.121). e. On or about June 2014, Dean disappeared for approximately two weeks while on an alleged business trip. (2RR pp.122- 124). During Dean’s two-week absence, Appellant attempted to regain possession of her children, but Appellee refused to return the children to Appellant, in breach of their agreement. (2RR p.126; 3RR p.p. 93-94; Ex. CP-1). Subsequently, Appellant filed for divorce in Hidalgo County, Texas. (2RR p.125). In response to Appellant’s divorce action, Dean filed a divorce action in Kendall County in Cause No. 14-283-CCL, styled In the Matter of the Marriage of Larry D. Jones, Jr. and Blanca Estella Jones and In the Interest of L.D.J, III, A.Y.J, W.F.J. and C.J., Minor Children (herein “Dean’s divorce action”). (3RR p.p. 95-101; Ex. P-5). The Appellee intervened in Dean’s divorce action. (3RR p.p. 95-101; Ex. P-5) f. Appellant and Dean began to reconcile their marriage in the latter part of June 2014. (2RR p. 134; Ex. P-8). Appellant and Dean eventually travelled to Fredericksburg, Texas to regain possession of the two remaining children, L.D.J, III and W. F. J., in an attempt to work on their marriage. (2RR p. 134). On July 3, 2014, Dean’s father drove Appellant with all her four children down to McAllen, Texas. (2RR p. 135). g. On or about July 3, 2014, Appellant’s husband committed suicide in Fredericksburg, Texas. (2RR p. 134, line 16-19). On July 11, 2014 Appellee sought and obtained a Writ of Attachment for all four children from the Kendall County Court at Law pursuant to her intervention in Dean’s divorce action. (3RR p.p. 95-101; Ex. P-5). On or about July 11, 2014, Appellee travelled from Kendall County to McAllen, Texas and had the Writ of Attachment for all the children executed by Hidalgo County Sheriff’s officers. (3RR p. 100, line 21-25 and p. h. On July 16, 2015, Appellant filed the instant Suit Affecting Parent Child Relationship, in Hidalgo County, Texas. (CR p.15). On July 25, 2014, the Kendall County Court at Law dismissed all of Appellee’s and Dean’s actions pending before it for lack of jurisdiction due to Dean’s death on July 3, 2014. (Ex. P-5). Appellee, subsequently, filed a counter-petition in the instant Suit Affecting Parent Child Relationship. (CR p. 36).
On December 17 th and 18 th , 2014 a bench trial was held on the parties’ Suits i. Affecting Parent Child Relationship. The issues before the court were:
(1) whether appointment of Appellant, the natural parent of the children, as sole managing conservator of the children would not be in the best interest of the children because the appointment would significantly impair the children’s physical health or emotional development; and
(2) whether Appellant voluntarily relinquished actual care, control and possession of the children to Appellee, a nonparent, for a period of one year or more; of which time period was not more than 90 days prior to Appellee filing suit in the instant case. The final judgment of the trial court appointed Appellee as the sole managing conservator of all children made the subject of this Suit Affecting Parent Child Relationship, and Appellant was appointed possessory conservator of her biological children. (CR p.110) j. The trial court signed findings of fact and conclusions of law on January 12, 2015. (CR p.108). Appellant appeals from this final judgment. (CR p.110 and
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The Appellee, a non-parent, challenged the Appellant’s, right to be appointed sole managing conservator of the children. To succeed in her challenge, the Appellee had to rebut the presumption that the best interest of the children would be best served by appointing Appellant, the natural parent, as managing conservator. This placed a heavy burden on the Appellee, as this parental presumption is deeply embedded in Texas law. This parental presumption is codified in Sections 153.131 and 153.373 of the Texas Family Code.
The Appellant’s first argument is that in order for Appellee to rebut the parental presumption in set out in Tex. Fam. Code §153.373, the Appellee had the burden of proving, by a preponderance of the evidence, that 1) the Appellant had voluntarily relinquished actual care, control, and possession of the children to the Appellee for a period of one year or more; and 2) that the appointment of the Appellee as conservator of the children is in the best interest of the children. When Appellant went to Mexico for processing her visa to obtain residency in the United States, she left the children with her husband, Dean, not with the Appellee. During her involuntary stay in Mexico, the Appellant maintained telephone contact with the children through her husband, but had little, if any, contact with Appellee. Further, Appellee testified that she obtained possession of the children from her son, Appellant’s husband, not from Appellant. Additionally, Appellee further 13 testified that she had no evidence that Appellant had voluntarily relinquished the children to her.
Appellee failed to show, by a preponderance of the evidence, that appointment of the Appellee as sole managing conservator of the children on voluntary relinquishment grounds would be in the children’s best interest. Thus, the evidence is legally insufficient to support the trial court’s judgment awarding conservatorship to Appellee on voluntary relinquishment grounds. Alternatively, and without waiving the legal sufficiency challenge, the evidence is factually insufficient to show that Appellee voluntarily relinquished care, control and possession of the children for one year or more and appointment of the Appellee as sole managing conservator of the children would be in the children’s best interest.
The court abused its discretion in appointing Appellee as the sole managing conservator of the children, and the court’s judgment should be reversed and judgment rendered that Appellee be appointed the sole managing conservator of the children. Alternatively, should the court find the evidence factually insufficient, the trial court’s judgment should be reversed and the case remanded to the trial court for a new trial and further fact-finding.
The Appellant’s second argument is that in order for the Appellee to rebut the parental presumption set out in Tex. Fam. Code §153.131, the Appellee had the burden of showing, by a preponderance of the evidence, that appointment of the Appellant as sole managing conservator of the children would not be in the children’s best interest because the appointment would significantly impair the children's physical health or emotional development. At trial, the Appellant offered little more than her contentions that she would be a better custodian of the children or that she has a strong and on-going relationship with the children.
To discharge her burden of rebutting this parental presumption to prevent Appellee from being appointed sole managing conservator of the children, the Appellee was required to offer evidence of specific actions or omissions of the Appellant that demonstrate that appointing Appellant as conservator would result in physical or emotional harm to the children. Neither the Appellee nor the witnesses she called to testify offered any evidence that Appellant was presently engaged in some detrimental immoral or criminal conduct of the type that this and other Texas courts have found to pose a real, rather than a speculative, harm to a child’s physical health or emotional development, e.g. illegal drug use, alcohol abuse, family violence against her spouse or the children, drug dealing, neglect of a child or other criminal activity.
Appellee failed to show by a preponderance of the evidence that appointment of the Appellant as sole managing conservator of the children would not be in the children’s best interest because the appointment would significantly impair the children's physical health or emotional development. Thus, the evidence 15 is legally insufficient to support the trial court’s judgment awarding conservatorship to Appellee on impairment grounds. Alternatively, and without waiving the legally sufficiency challenge, the evidence is factually insufficient to show that appointment of the Appellant as sole managing conservator of the children would not be in the children’s best interest because the appointment would significantly impair the children's physical health or emotional development. Therefore, the evidence is legally and factually insufficient to support the trial court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in appointing Appellee as sole managing conservator of the children on voluntary relinquishment grounds.
The following issues and sub-issues are joined in this part of the argument because they are related to the trial court’s finding of facts that Appellee rebutted the statutory parental presumption in Tex. Fam. Code §153.373. Issue No. 1. The trial court abused its discretion in appointing Appellee
as the sole managing conservator and Appellant possessory conservator of the children. Issue No. 2. The evidence is legally and factually insufficient to support
the court’s Finding of Fact No. 2. 16 Issue No. 3. The evidence is legally and factually insufficient to support
the court’s Finding of Fact No. 4. Issue No. 4. The evidence is legally and factually insufficient to support
the court’s finding of fact No. 5 that the Appellee had rebutted the statutory parental presumption in Tex. Fam. Code §153.373. Issue No. 5. The court erred in its Conclusion of Law – Conservatorship
because the evidence is legally and factually insufficient to support the conclusion that Appellee be appointed sole managing conservator of the children and Appellee should be appointed possessory conservator.
Arguments & Authorities A. Standard of Review
A trial court’s decision regarding the conservatorship of a child is reviewed under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464, 469 (Tex. App.--Fort Worth, 2009). In an abuse of discretion review, legal and factual insufficiency are not independent grounds for asserting error, but are merely relevant factors in assessing whether a trial court abused its discretion. Id. at 473. In applying the abuse of discretion standard, an appellate court in a family law case must apply a two-prong analysis: (1) whether the trial court had sufficient evidence
17 upon which to exercise its discretion; and (2) whether the trial court erred in applying its discretion. Id. B. Voluntary Relinquishment of the Children for One Year or More. In order for Appellee to rebut the parental presumption set out in T EX . F AM . C ODE , the Appellee had the burden of showing, by a preponderance of the evidence, that 1) the Appellant had voluntarily relinquished actual care, control, and possession of the children to the Appellee for a period of one year or more; and 2) that the appointment of the Appellee as conservator of the children is in the best interest of the children. Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.-- Fort Worth, 2009).
The trial court found that Appellant had voluntarily relinquished the actual care, control and possession of the children to the Appellee for a period of six months or more. (CR pp. 108, Finding of Fact Nos. 2). The evidence is legally and factually insufficient to support the trial court’s finding of fact that Appellee rebutted the parental presumption in T EX . F AM . C ODE §153.373 on grounds that Appellant had voluntarily relinquished the actual care, control and possession of
the children to the Appellee for a year or more. See (CR pp. 108-109, Finding of Fact Nos. 2, 4, 5). Although, the evidence shows that the children were in Appellee’s possession, the Appellant contends that such possession was not the result of her having voluntarily relinquished the actual care, control and possession of her children to the Appellee. What is Voluntary Relinquishment ?
The Family Code does not define “voluntarily relinquish” as that term is used in section 153.373. However, at least one court has recently construed “voluntary relinquishment” as meaning “to give up by one’s own free will.” See In re S.A.H., 420 S.W.3d 911, 922 (Tex. App. --Houston [14 th ] Dist., 2014). To prove voluntary relinquishment, Appellee carries the burden of proving that Appellant placed L.D.J. III, A.Y.J., W.F.J. and C.J. into Appellee’s care and possession during on or after December 2012 of her own free will “without any legal obligation or other external compulsion to do so.” In re S.A.H., 420 S.W.3d 911, 923 (Tex. App. –Houston [14 th ] Dist., 2014). Evidence of Voluntary Relinquishment Offered at Trial :
At trial, Appellee sought to prove that Appellant had relinquished actual care, control and possession of her biological children, L.D.J, III, A.Y.J, and
19 W.F.J, on December 21, 2012. Appellee avers in her sworn petition that Appellant had “voluntarily relinquished” the children to her on December 21, 2012. (CR p.36). Yet, at trial, Appellee testified that it was, actually, her son, Dean (Appellant’s husband) who had delivered possession of L.D.J, III, A.Y.J, and W.F.J to her on December 21, 2012 (3RR pp. 35-37).
Appellee testified that she was doing what her son wished her to do. (3RR pp. 34-37) In connection with this testimony, Appellee referred to her son’s will and a power of attorney that he had executed as his wishes for her to remain the conservator of his children after his death. (3RR pp. 35-37; Ex. P-7; Ex. CP-7). Yet, these instruments are only evidence that Appellant’s husband - the person to whom Appellant had entrusted her children and the person from whom Appellee received possession of the children 3 – was still exercising control and care of the children by planning for their future. Dean’s will and power of attorney were not an immediate granting of rights to the children to Appellee, as Appellee contended at trial, but rather a conditional grant of rights in the future.
Appellant entrusted the care, control, and possession of the children to her husband when she departed to Mexico, and she also sought to exercise some care
and control of children, while she was involuntarily outside the United States, by requesting that Dean bring the children to visit her in Mexico. (2RR p.28, line 18- 23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). Appellant’s requests to have her children travel into Mexico to visit her were denied by her husband because he feared for the children’s safety. (2RR pp.117, line 5-25 and 118, line 1-11). Appellant’s husband controlled the line of communication between Appellant and the children, and he exercised control over the children in Appellant’s absence. (2RR p. 32, line 19). The Appellant communicated with the children via telephone, in two ways: 1) Dean would call her from Fredericksburg and put the children on the phone to talk the Appellant ; and 2) when Dean visited her in Mexico, he would call the Appellee and ask that the children be put on the phone so they could talk with Appellant. (2RR pp.39-44). This is further evidence of the control that Dean maintained over their children while Appellant was unable to lawfully enter the United States. (2RR p. 92, line 1-22, pp. 107-109; 3RR pp. 36-37; Ex. P-4, page 15). It is also evidence that Appellant was exercising parental care and control over the children. This also begs a very pivotal question: if in fact, Appellant had voluntarily relinquished the care, control, and possession of the children to Appellee, wouldn’t she have been contacting Appellee, rather than Dean, to have the children visit her in Mexico?
21 The will and power of attorney executed by Appellant’s husband, without Appellant’s knowledge and consent, were the memorialization of the control over their children he maintained throughout the time Appellant was outside the United States. These documents prove how he maintained control over their children’s future, if upon leaving the United States he was not to return during this immigration process due to an occurrence outside his control. (3RR pp. 36-37)
On cross-examination, Appellee testified that she had no direct evidence that proved Appellant had voluntarily relinquished the children to her other than her assumption that the preparation of the children’s bags by Appellant for their departure with Appellee in December 2012 was evidence of Appellant’s intent to voluntarily relinquish actual care, control and possession of the children to her. (3RR pp. 77-79). Appellee admits that the possession she enjoyed during the time Appellant was to be outside the country was temporary pending Appellant’s return to the United States. (3RR p. 37, line 9-25). There is no evidence of any agreement between Appellant and Appellee, either oral or written, whereby Appellee relinquished voluntary care, control, and possession of the children to Appellee See, e.g., In re S.A.H., 420 S.W.3d 911, 914 and 924 (2014) (mother’s granting of
power of attorney over child to great aunt evidenced voluntary relinquishment). The evidence shows that Appellant and Appellee had little to no communication with one another before and after Appellant left the United States. (2RR pp. 39-44, p.46, line 5-19, p.102, line 13-18, p.118, line 1-25; 3RR pp. 84-87). The only evidence in the record that can be directly attributed to Appellant having agreed to Appellee having possession of the children is when Appellee “begged” for the children to stay with her after Appellant and Dean travelled to Fredericksburg in April of 2014 to retrieve the children. (3RR p. 45, line 11-25), and Appellant and Dean agreed to the children staying with Appellee until the end of the school year. (2RR p.p. 121). No Evidence of Voluntary Relinquishment
Thus, while Appellant may have been physically apart from L.D.J. III, W.F.J., and A.Y.J. for all of 2014, there is no evidence that she gave up, by her own free will, the care, custody, and possession of the children to the Appellee. In particular, there is no evidence that Appellee ever had possession of C.J., prior to this suit being filed. She did not obtain possession of C.J. until she obtained such possession through the Writ of Attachment issued by the Kendall County Court. See T EX . F AM . C ODE §153.131.
Assuming, arguendo, that Appellant had made some agreement with Appellee to have Appellee care for the children while Appellant went to Mexico to 23 take care of her visa matter, this case would be analogous to Critz v. Critz, 297 S.W.3d 464 (Tex.App.-Fort Worth 2009, no pet.). In Critz v. Critz, the grandparents of a child were awarded joint managing conservatorship of a child that they alleged had been voluntarily relinquished to them by the biological mother of the child for one year or more. Critz v. Critz, 297 S.W.3d 464 (Tex.App.-Fort Worth 2009, no pet.). The Critz Court determined that even in light of some evidence of separation from the child on the part of the mother for over a period of one year, there still lacked the relinquishment of control of the child given her periodic contact with him. Critz, 297 S.W.3d at 474. In the instant case, Appellant was involuntarily prevented from returning to the United States which caused her to be away from the children that she had left in her husband’s care. (2RR p.28, line 18-23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). Yet, she periodically spoke with her children and discussed their well-being with her husband, the children’s parent with access to them while she resided in Mexico. (2RR pp.39-44). Appellant’s husband limited her access to the children further by denying her requests to have her children brought to her while she resided outside the United States. (2RR pp. 39-44, p.46, line 5-19, p.102, line 13-18, p.118, line 1-25; 3RR pp. 84-87). Additionally, Appellant requested her children be returned to her in April 2014 when she and her husband travelled to
24 Fredericksburg, Texas to retrieve the children from Appellee; which was acknowledged by Appellee. (2RR pp.120-121; 3RR p. 45, line 11-25).
As in Critz, the evidence of voluntary relinquishment of the children is not present in this case. Appellant maintained as much contact with her children as she had been accustomed to given the great efforts her husband undertook in caring for their children in her absence, and the impossibility of her physical presence within the United States given the fragile nature of her immigration status. (2RR p.28, line 18-23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). In Critz , the Court found sufficient contact with the child by the mother and that she had requested return of her child. Critz v. Critz, 297 S.W.3d at 474 & n.39 (voluntary relinquishment ended when mother filed answer to conservatorship petition). Assuming, arguendo, that Appellant had delivered possession of the children to Appellee rather than to her husband, Dean, when she left for Mexico, such act could not be deemed an act of free will. Appellant’s inability to physically take possession of her children and care for them as she had done prior to her departure was not a completely voluntary decision by her but rather a product of an external compulsion, i.e., having to leave to take care of her visa matter. This should be considered when determining whether Appellee’s physical possession of the children was truly an act of voluntary relinquishment by Appellant of her children. (2RR p.28, line 18- 23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46; Ex. P-). See In re S.A.H., 420 S.W.3d 911, 922 (Tex. App. --Houston [14 th ] Dist., 2014)(relinquishment must be an act of free will done without any legal obligation or other external compulsion to do so). To require Appellant to have unlawfully entered the United States to visit and care for the children in order to be able to defeat Appellee’s conservatorship action would be unreasonable because for her to do so would jeopardize her ability to lawfully reside within the United States in accordance with federal law. This would assure that Appellee could now use this unlawful act against the Appellant to rebut the parental presumption in Tex. Fam. Code §153.131.
Further, there is no evidence that Appellee ever had possession of the youngest child, C.J., at any time prior to July 11, 2014 when she sought and obtained a Writ of Attachment for all four children from a Kendall County court. (3RR pp. 95-101; Ex. P-5). Nor did Appellee proffer any evidence that she had filed any action to assert her rights to the children prior to Appellant and her husband travelling to Fredericksburg, Texas to pick up their children. Additionally, there was no evidence proffered by Appellee that she had any relationship with the child, C.J., after she was born in Mexico. In fact, Appellee provided no evidence that she sent gifts, cards, care packages or the like to her new granddaughter outside the United States. There was no evidence she ever inquired as to the health or well-being of this child. The record is devoid of any evidence that she had the possibility to assert any claim of conservatorship to this child, due to fact that she 26 did not possess the child the requisite time period prior to the institution of the instant cause. (CR p. 59) See Tex. Fam. Code §153. 373. Appellee failed to show by a preponderance of the evidence that appointment of the Appellant as sole managing conservator of the children on this relinquishment ground would be in the children’s best interest, thus the evidence is legally insufficient to support the trial court’s Finding of Fact Nos. 2, 4, and 5 (CR, pp. 108-109). Alternatively, the evidence is factually insufficient, as the great weight of the evidence is against any voluntary action or omission on Appellant’s part in voluntarily relinquishing actual care, control and possession to any other person aside from her husband. (2RR p.28, line 18-23, p.30, line 22-24, p. 31, line 8-10, p.32 line 19, p.38, line 12-25 and p.46, line 5-19).
The trial court abused its discretion in appointing Appellee as sole managing conservator of the children on grounds of voluntary relinquishment because the evidence is legally and factually insufficient to establish that Appellant had voluntarily relinquished the care, control, and possession of the children to Appellee.
Therefore, the court abused its discretion in appointing Appellee as the sole managing conservator of the children, and the court’s judgment should be reversed and judgment rendered that Appellee be appointed the sole managing conservator of the children. Alternatively, should the court find the evidence factually insufficient, the trial court’s judgment should be reversed and the case remanded to the trial court for a new trial and further fact-finding.
ARGUMENT (cont’d) The following issues and sub-issues are joined in this part of the argument because they are related to the trial court’s finding of facts that Appellee rebutted the statutory parental presumption in T EX . F AM . C ODE §153.131. Issue No. 6. The trial court abused its discretion in appointing Appellee
as the sole managing conservator and Appellant possessory conservator of the children. Issue No. 7. The evidence is legally and factually insufficient to support the
court’s Finding of Fact No. 2. Issue No. 8. The evidence is legally and factually insufficient to support
the court’s Finding of Fact No. 4. Issue No. 9. The evidence is legally and factually insufficient to support
the court’s finding of fact No. 5 that Appellee rebutted the statutory parental presumption in Tex. Fam. Code §153.131. Issue No. 10. The court erred in its Conclusion of Law – Conservatorship
because the evidence is legally and factually insufficient to support the conclusion that Appellee be appointed sole managing conservator of the children and Appellee should be appointed possessory conservator. 28
Arguments & Authorities A. Standard of Review A trial court trial court’s decision regarding the conservatorship of a child is reviewed under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464, 469 (Tex. App.--Fort Worth, 2009). In an abuse of discretion review, legal and factual insufficiency are not independent grounds for asserting error, but are merely relevant factors in assessing whether a trial court abused its discretion. Id. at 473. In applying the abuse of discretion standard, an appellate court in a family law case must apply a two-prong analysis: (1) whether the trial court had sufficient evidence upon which to exercise its discretion; and (2) whether the trial court erred in applying its discretion. Id. B. Impairment of Children’s Physical Health or Emotional Development “The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law.” Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990). Therefore, section 153.131 5 of the
Texas Family Code requires that the parent be appointed sole managing conservator or both parents be appointed joint managing conservators unless the nonparent proves by a preponderance of the credible evidence that “appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development....” Tex. Fam.Code Ann. § 153.131 (Vernon 2008); Gray v. Shook, 329 S.W.3d 186, 196 (Tex.App.-Corpus Christi 2010). The Family Code's presumption in favor of parental custody places a “heavy burden on a nonparent seeking custody.” May v. May, 829 S.W.2d 373, 376 (Tex.App.-Corpus Christi 1992, writ denied). To rebut the presumption, “the evidence must support a logical inference that some specific, identifiable behavior or conduct of the parent will probably cause significant physical or emotional harm to the child.” Id. at 377. Any “close call” must be resolved in favor of the parent over the nonparent. Gray v. Shook, 329 S.W.3d at 196 (citing Chavez v. Chavez, 148 S.W.3d 449, 459 (Tex.App.-El Paso 2004, no pet.)). Evidence of Impairment of Children’s Physical Health or Emotional Development Offered at Trial:
In addition to her testimony, Appellee called two witnesses in an attempt to prove that Appellant was an unfit parent. The first witness that Appellee called to
30 testify about the Appellant was Evelia Salinas. Ms. Salinas’ testified about events that had occurred about 3 or 4 years prior to the trial date, and had little to no bearing on Appellant’s ability to care for her children. (2RR p. 153, line 6-10). Ms. Salinas’ testimony can be summarized, as follows: 1) that she had been around Appellant and her children approximately four or five times in the year 2011. (2RR p. 153, line 6-10); 2) that she believed her brother in law acted inappropriately with Appellant at a party; and 3) that she believed Appellant was a devil worshipper because of some ring that Appellant was wearing symbolizing a cult religion commonly referred to as “La Santa Muerte”. (2RR pp.153-177). However, Ms. Salinas’ testimony did not encompass Appellant having any problems with alcohol, drugs, criminal convictions or a known history of family violence. (2RR pp.153-177). On cross-examination, Ms. Salinas admitted not having any personal knowledge about Appellant’s current abilities to care for her children or religious beliefs at the time of trial. (2RR pp.171-177). Most importantly, Ms. Salinas’ testimony offered no evidence of any specific, identifiable behavior, conduct or omissions of the parent that would, to a reasonable degree of certainty, probably cause significant impairment to the children’s physical or emotional development. (2RR pp.153-177); See Gray v. Shook, 329 S.W.3d at 196 (evidence of harm must rise above mere speculation and be attributable to a specific, identifiable act or omission of the parent).
31 The second witness called by the Appellee was Herminia Martinez. Ms. Martinez offered less evidence than Ms. Salinas of any harm that would come to the children if Appellant would be appointed their sole managing conservator. (3RR pp.5-19). Mrs. Martinez testified to knowing Appellee for over twenty years and knew her both personally and professionally. (3RR p.5-10). Yet, Mrs. Martinez had no personal knowledge of Appellant’s parenting abilities nor did she ever witness Appellant around Appellant’s children. (3RR p. 17, line 15-20). She testified that her personal knowledge was limited to Appellee’s interaction with the children and served to simply bolster Appellee’s capability of being a good caretaker of the children. (3RR p. 17, line 5-20). Mrs. Martinez’ confirmed the lack of communication Appellee had with Appellant before and after she left the United States, and that Appellant’s husband communicated with Appellee regarding the children. (3RR pp.15-16). Mrs. Martinez offered no evidence of Appellant’s use or abuse of alcohol or drugs, no evidence of a criminal history, and no evidence of any history of family violence. (3RR pp.5-19). Ms. Martinez testimony about Appellee being a capable caretaker of the children does nothing to rebut the parental presumption requiring that Appellant be appointed the sole managing conservator of the children. The Appellee, as non-parent, has the burden to show that appointment of the Appellant parent as managing conservator would significantly impair the child, either physically or emotionally, is not met by 32 evidence that shows she would be a better custodian of the child or that she has a strong and on-going relationship with the child; further, evidence of past misconduct alone is insufficient. In re S.M.D. 329 S.W.3d 8 (Tex. App. – San Antonio, 2010)(reh’g overruled, rev. dism’d).
Appellee testified but offered no evidence that proved that Appellant’s appointment as sole managing conservator of the children would have significantly impaired the children’s physical health or emotional development. (3RR pp. 20- 122). Appellee testified that she had no evidence of Appellant directly relinquishing the children to her. (3RR pp.77-79, p.117, line 22-25 and p. 118). Appellee’s testimony provides no evidence that Appellant used or abused alcohol or drugs, whether she had a criminal record, and/or a history of family violence. (3RR p.65). Appellee’s testimony does nothing more than solidify that her only motive in this suit was to prevent Appellant from having sole managing conservatorship of her children because of an unsubstantiated belief that Appellant had a hand in her son’s death and is an unfit mother, generally. (3RR pp. 66-67, pp.70-71, pp. 93-95, pp.105-107, pp. 110-113, pp. 115-118, p.121). Yet, Appellee could not provide direct evidence of the source of her misguided opinion, nor did she provide any evidence that these beliefs were a legitimate concern for the trial court. Appellee did not meet the legally or factually sufficient threshold of evidence required to prove by a preponderance of such evidence that Appellant’s appointment as sole managing conservator of her biological children would significantly impair the physical health or emotional development of these children. Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014), Critz v. Critz, 297 S.W.3d 464, 470 (Tex.App.-Fort Worth 2009, no pet.), Chavez v. Chavez, 148 S.W. 3d 449, 459-60 (Tex.App.-El Paso, no pet.), See, also, Tex. Fam. Code Ann. §153.131.
The only evidence of Appellant’s capability of caring for her children and being an active caretaker was provided by the witness, Rose Lerma. (3RR p.129) Ms. Lerma helped Appellant from April 2014 until July 2014 with her children and the general day to day task of keep her home in order. (3RR p.131-132). Ms. Lerma testified the Appellant was a great mother and was a great caretaker of her children. (3RR pp.133-135). Ms. Lerma also testified that she never witnessed any violence on the part of Appellant, nor did she witness any use of drugs or alcohol the entire time she worked for her. (3RR pp. 133-135). Ms. Lerma also testified that Appellant had stayed a considerable amount of time with her family in Mexico and knew her to be a good person. (3RR p.130). The reason she ceased her employment with Appellant was due to the children being removed from Appellant’s home on July 11, 2014 by Appellee. (3RR p.133). This witness provided the most insight as to Appellant’s ability as a parent and a mother to the children in this suit in relation to the time period that these issues were being litigated. The testimony of all Appellee’s witnesses was diminished with the honest and unbiased testimony offered by Ms. Lerma. She clearly and unequivocally voiced her opinion of Appellant as a capable mother that loved her children. (3RR pp.129-136).
To discharge her burden of rebutting this parental presumption to prevent Appellant from being appointed sole managing conservator of the children, the Appellee was required to offer evidence of specific actions or omissions of the Appellant that demonstrate that appointing Appellant as conservator would result in physical or emotional harm to the children. Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990); Brigham v. Brigham 863 S.W.2d 761 (Tex.App.- Dallas, 1993)(citing Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990)). The Appellee offered no evidence that Appellant was presently engaged in some detrimental immoral or criminal conduct that this and other Texas courts have found to pose a real, rather than a speculative, harm to a child’s physical health or emotional development, e.g. illegal drug use, alcohol abuse, family violence against her spouse or the children, drug dealing, or other criminal activity. May v. May, 829 S.W.2d 373, 376 (Tex. App.-Corpus Christi 1992, writ denied; see, e.g. Compton v. Pfannenstiel, 428 S.W.3d 881 (Tex. App.--Houston [1 st Dist.] 2014)(mother’s drug-dealing, neglect and physical abuse of children would result in physical or emotional harm to children). The trial court erred in finding that 35 Appellant’s appointment as sole managing conservator was not in the children’s best interest, particularly in light of the legally and factually insufficient evidence at trial on this issue. Shook v. Gray, 381 S.W.3d 540 (Tex. 2012), See, T EX . F AM .
Gray v. Shook, 329 S.W.3d 186, (Tex.App.-Corpus Christi 2010) should set the standard for deciding whether appointing Appellant as sole managing conservator will impair the children’s physical or emotional development. In Gray, this honorable court reversed the trial court on the grounds that the trial court had abused its discretion in appointing a grandmother sole managing conservator of the child made the subject of the underlying suit in that case, in light of the absence of a preponderance of the evidence that father’s appointment as managing conservator of the child would significantly impair the child’s physical health or emotional development. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010, rev’d). This Court found that the potential for future harm and the lack of present harm were insufficient to substantiate a finding of fact or conclusion of law that the parent’s appointment as sole managing conservator would significantly impair the child’s physical health or emotional development, when that speculative harm was simply “uprooting” the child from their present residence. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010, rev’d)(citing May v. May, 829 S.W.2d 373, 376-77 (Tex.App.-Corpus Christi 36 1992, writ denied), See also, Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). This court quoted the Texas Supreme Court’s holding in Lewelling v. Lewelling that “specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child” would be required to be established by a preponderance of the evidence by the nonparent to meet the standard of proof under T EX . F AM . C ODE A NN . §153.131. Id. The Supreme Court in Shook affirmed the holding by this court regarding the lack of legally and factually sufficient evidence proffered at trial by the nonparent. Shook v. Gray, 381 S.W.3d 540, 543 (Tex. 2012). The Supreme Court agreed with this court’s analysis of the evidence and agreed with remanding the case back to the trial court for a hearing on conservatorship. Id . In the instant case, the record is devoid of any evidence that Appellant posed an actual danger to her children or that future harm would be a concern, if Appellant were to be appointed sole managing conservator of her children. (3RR p.117, line 22-25 and p. 118). This court should find as it did in Gray that the trial court abused its discretion in appointing Appellee sole managing conservator of all four children, without legally and factually sufficient evidence to support its Findings of Fact Nos. 2, 4 and 5. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010, rev’d).
Thus, Appellee failed to show by a preponderance of the evidence that appointment of the Appellant as sole managing conservator of the children would 37 not be in the children’s best interest because the appointment would significantly impair the children's physical health or emotional development. Alternatively, and without waiving the legally sufficiency challenge, the evidence is factually insufficient to show that appointment of the Appellant as sole managing conservator of the children would not be in the children’s best interest because the appointment would significantly impair the children's physical health or emotional development.
Therefore, the evidence is legally and factually insufficient to support the trial court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in appointing Appellee as sole managing conservator of the children on voluntary relinquishment grounds. The court erred in not making findings of facts which demonstrated Appellant’s voluntary relinquishment that would support these Findings of Fact Nos. 2, 4 and 5.
The evidence presented by the Appellee to rebut the parental presumption through either voluntary relinquishment or significant impairment grounds is legally and factually insufficient to support the trial court’s findings of fact. Thus, the trial court’s judgment should be reversed and judgment rendered for Appellant. Alternatively, should the court find the evidence factually insufficient, the trial court’s judgment should be reversed and the case remanded to the trial court for a new trial and further fact-finding.
38
Appellant requests this Court consider the issues presented for review and that upon such consideration that the trial court’s judgment should be reversed and judgment rendered for Appellant. Alternatively, should the court find the evidence factually insufficient, the trial court’s judgment should be reversed and the case remanded to the trial court for a new trial and further fact-finding.
Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby certify that this brief contains 7,542 words (excluding the caption, table of contents, table of authorities, signature, proof of service, certification and certificate of compliance). This is a computer-generated document created in Microsoft Word, using 14-point typeface for all text, except for footnoted which are 12-point typeface. In making this certificate of compliance, I am relying on the word count provided by the software used to prepare the document.
39
Respectfully submitted, PEÑA GARCIA GUERRERO PLLC 900 Kerria Avenue McAllen, TX 78501 t: 956.948.2221 f: 888.422.6821 By: /s/ Francisco Guerrero II Francisco Guerrero, II SBN 24047588 fg@pgglex.com ATTORNEY FOR APPELLANT
I, Francisco Guerrero II, certify that a true and correct copy of the foregoing APPELLANT’S BRIEF was served on opposing counsel in accordance with the Texas Rules of Appellate Procedure 9.5 on the 21th day of July 2015
The Firm of Roel "Robie" Flores 3331 N. Ware Rd Mc Allen, Texas 78501 Ph. (956) 631-7188 Fx. (956) 631-7268 robiefloreslaw@att.net
/s/ Francisco Guerrero II Francisco Guerrero II 40
Tab No. 1 – Trial court’s final judgment Tab No. 2 – Trial court’s findings of fact and conclusions of law Tab No. 3 – Critz v. Critz Tab No. 4 – Gray v. Shook Tab No. 5 – Shook v. Gray
41 Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 297 S.W.3d 464 Shelley Durrell Haines CRITZ and Roger Allen Critz, Appellant/Cross-Appellant, v. Roger Allen CRITZ, Joseph C. Critz, and Sharon A. Critz and Shelley Durrell Haines Critz, Appellees/Cross-Appellee. No. 2-08-015-CV. Court of Appeals of Texas, Fort Worth. September 17, 2009. [297 S.W.3d 467] Jacquelyn A. Flynt, Monique Lopez-Hinkley, Leagl Aid of Northwest Texas, Fort Worth, TX, for Shelley Durrell Haines Critz. Jeremy C. Martin, Dallas, TX, for Roger C. Critz. Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, TX, Sarraine S. Krause, Law Office of Sarraine S. Krause, Fort Worth, TX, for Joseph C. Critz, Sharon A. Critz. Panel: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ. OPINION JOHN CAYCE, Chief Justice. Appellant Shelley Durrell Haines Critz complains of the trial court's final decree of divorce appointing appellees Joseph C. Critz and Sharon A. Critz as joint managing conservators of Ryder Critz. We reverse and remand. remainder of 2004, Shelley was hospitalized due to complications from her pregnancy. She saw Ryder one day in September, two days in October, no days in November, and three days in December. She also kept in contact with him by phone. During Christmas, she drove to the Grandparents' house to see Ryder but she became sick on the return trip and miscarried. I. Background Roger and Shelley Critz met while they were both working at a nightclub in the early 1990s. In February 1998, Shelley gave birth to their only child, Ryder, and in September of that year, Shelley and Roger married.
On January 27, 2005, Roger filed an original petition for divorce requesting that he be appointed primary joint managing conservator of Ryder. The same day, the Grandparents filed a petition intervening into the divorce suit seeking primary joint managing conservatorship on the grounds that Roger and Shelley had voluntarily abandoned Ryder, and that appointing Roger or Shelley as a primary conservator would significantly impair Ryder's physical health or emotional development. In February 2003, after an argument about Roger's alleged drug use, Roger moved out of their house. Shelley remained in the house with Ryder for another six months before she learned that it was being foreclosed. Both Shelley and Ryder eventually moved in with Roger's parents, Joseph and Sharon Critz (the Grandparents). While Shelley and Ryder were living with the Grandparents, Shelley met and began dating Chris Martinez. In January of 2004, she began staying with Chris and away from the Grandparents' house on weekends. In May 2004, Shelley became pregnant with Chris's child.
Shelley filed answers to the petitions, along with a counterpetition for divorce [297 S.W.3d 468] requesting that she be appointed sole managing conservator, and contending that appointment of the Grandparents or Roger as joint managing conservators would not be in Ryder's best interests. In June 2004, Shelley moved in with Chris and his parents while Ryder continued to stay with his Grandparents. During much of the
- 1 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) On May 12, 2005, the trial court issued temporary orders that gave the Grandparents primary custody of Ryder, and delineated specific times when Shelley and Roger had rights to possession. to the trial support court's insufficient conservatorship decision, and she requested the court to issue findings of fact and conclusions of law related to its decree. 3 The Grandparents responded to the motion for new trial and fact and submitted proposed conclusions of trial court law, which adopted. In the court's findings of fact, the court the found parental presumption" and that it was in Ryder's best interest that the Grandparents, Shelley, and Roger joint managing conservators. This appeal and cross-appeal followed.
findings of the In November 2006, Todd Maslow, a caseworker for Family Court Services, submitted a social study report recommending that Ryder should continue to reside with the Grandparents, but that he should continue to see Shelley as much as possible.
that the Grandparents "rebutted be appointed In March 2007, the Grandparents filed a "parenting plan" for Ryder, which intended to "establish guidelines," "state the importance of [Ryder's] well being," and "establish goals for emotional support, education, and discipline." The parenting plan described their intentions for Ryder's education (including plans related to his ADHD), his after-school care, his medical needs (including a list of health care providers he would use), and Roger's and Shelley's proposed roles. The plan proposed that they, Shelley, and Roger all be appointed as joint managing conservators, that the Grandparents should establish his primary residence, and that Shelley and Roger should have designated times the of possession, summer and on holidays.
II. Issues on Appeal Shelley complains of the trial court's order appointing the Grandparents as joint managing conservators of Ryder. She contends that the trial court erred in failing to make specific findings of fact identifying the basis for its conclusion that the [297 S.W.3d 469] parental presumption was rebutted by the Grandparents. She further contends that the evidence is legally and factually insufficient to prove that she relinquished control of Ryder for more that she would significantly impair Ryder's physical or emotional well-being. Roger complains of the trial court's failure to specify his periods of possession and access. times during including
than one year and The issues regarding Ryder's custody were tried before the trial court in March 2007. After the parties rested and counsel made closing arguments, on March 30, 2007, the trial court appointed the Grandparents, Shelley, and Roger as joint managing conservators of Ryder, with the Grandparents having primary possession and the authority to establish his permanent residence. The trial court set particular dates and times for Shelley to have access to Ryder, but stated that Roger would have such access only "at such times as is agreed upon" between him and his parents. In October 2007, the trial judge signed a final decree of divorce that incorporated these decisions.
A. Standard of Review
trial court's decision regarding A the conservatorship of a child is reviewed under an abuse of discretion standard. 4 To determine whether a trial court abused its discretion, we must decide whether the trial court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. 5 Merely because a trial court may decide a matter within its discretion in a different manner than an appellate court would in a similar circumstance does not In November 2007, Shelley filed a motion the evidence for new presented at trial was legally and factually
trial, asserting that
- 2 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) demonstrate that an abuse of discretion has occurred. 6 [t]he presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that: An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence. Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision.
(1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, child- placing agency, or authorized agency for a period of one year or more, a portion of which was within 90 days preceding the date of intervention in or filing of the suit; and
licensed B. The Parental Presumption In her first issue, Shelley contends that the it trial court abused appointed the Grandparents as joint managing conservators of Ryder without making specific findings related to the parental presumption described by sections 153.131 and 153.373 of the family code. Section 153.131 provides:
its discretion when
the appointment of agency the (2) nonparent as managing conservator is in the best interest of the child. 12
or (a) Subject to the prohibition in Section 153.004, 10 unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the or child's emotional a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
Collectively, these statutes provide that it is presumed that the appointment of "the parents of a child" as joint managing conservators is in the best interest of the child. 13 To overcome this presumption, a court must (1) appointment of the parents would significantly impair the child's physical health or emotional development, (2) the parents have exhibited a history of family violence, or (3) the parents voluntarily relinquished care, control, and possession of the child to a non-parent for a year or more. 14 A trial court's conclusion that the parental presumption has been rebutted must be supported by specific findings of fact identifying the factual basis for the finding, and the failure to make such findings constitutes error. 15
that find health development, physical rebuttable (b) presumption the appointment of the parents of a joint managing child conservators the best is interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption a It is
that as
in
Shelley contends that the trial court was required to specifically make one of these three findings to appoint the Grandparents as joint managing conservators. Relying on a Texas Supreme Court opinion construing a former version of the family code, the Grandparents assert that the presumption does not apply and, therefore, no findings were required because Shelley and Roger were also made joint managing conservators. [297 S.W.3d 470]
under this subsection. 11 Section 153.373 states that
- 3 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) In Brook v. Brook, 16 the supreme court construed former family code section 14.01, which provided, in pertinent part, as follows: the appointment would be in the child's best interest. 20 This is no longer the law. 21
Under current section 153.131, it is now presumed that the appointment of both parents as joint managing conservators is in the child's best interest. 22 This substantive change in the parental presumption law is not addressed by the dissent. When Brook was decided, there was no rebuttable presumption that both parents be appointed joint managing conservators. Thus, under former law, so long as one parent was appointed a joint managing conservator, as was the case in Brook, the parental presumption was satisfied. Under section 153.131, however, a non-parent may not be appointed a joint managing conservator without overcoming the presumption as to both parents. 23 The plain wording of the statute makes clear that this presumption applies when a non-parent seeks managing conservatorship in lieu of or in addition to both parents. There is no language in section 153.131 the presumption is inapplicable to the appointment of non-parents as joint managing conservators when the trial court also appoints one or both parents. Nor does Brook compel this result. (a) In any suit affecting the the parent-child relationship, court may appoint a sole managing conservator or may managing joint appoint conservators. A managing conservator must be a suitable, competent adult, or a parent, or an authorized agency. If the court finds that the parents are or will be separated, the court shall appoint at least one managing conservator. (b) A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:
indicates that that the finds court that (1) appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly the child's physical impair health emotional or development. 17
[297 S.W.3d 472] The dissent suggests that we have departed from binding precedent of the supreme court and of this court. We clearly have not. Brook, and this court's nearly twenty-year-old decision following it, 24 interpreted and applied a former statute that did not contain a parental presumption requiring that both parents be appointed joint managing conservators unless rebutted. Because Brook construed a repealed statute that is substantively different than the statute at issue here, we are, of course, not bound under the doctrine of stare decisis by the Brook court's interpretation of the repealed statute. 25 [297 S.W.3d 471] The supreme court held that section 14.01 authorized a trial court to appoint a non-parent as a joint managing conservator without proof that appointment of a parent or the parents would significantly impair the child's health or development, so long as the non-parent shares custody with a parent. Unlike current section 153.131, former section rebuttable contained presumption that appointment of both parents as joint managing conservators is in the child's best interest. At the time Brook was decided, a trial court was authorized to appoint parents as joint managing conservators only upon finding that
no 14.01
The dissent takes the novel position that the presumption does not apply to the appointment of the joint managing conservators in this case, but that it does apply to which joint managing the child's should determine conservator
- 4 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) residence. As written by the permanent legislature, however, section 153.131 contains no language that indicates a legislative intent that a parental presumption applies to the issue of primary custody apart from the determination of joint managing conservatorship. The title to section 153.131 is "Presumption That Parent to be Appointed Managing Conservator. Moreover, the statute expressly refers to a presumption that a parent should be appointed "sole managing conservator," or that both parents should be appointed "joint managing to a conservators"—it makes no reference separate presumption for determining which joint managing conservator chooses the child's permanent residence. To reach the result that the dissent advocates, we would be required to the legislate from managing conservator presumption into a "primary custody" presumption with no statutory authority for doing so. We are not inclined to do this. In an abuse of discretion review, legal and factual independent grounds for asserting error, but are merely relevant factors in assessing whether a trial court abused its discretion. 33 Thus, in applying the abuse of discretion standard, an appellate court in a family law case must apply a two-prong analysis: (1) whether trial court had sufficient evidence upon which to exercise its discretion; and (2) whether the trial court erred in applying its discretion. 34
insufficiency are not
the legal sufficiency We may sustain a challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a mere scintilla, or the evidence establishes conclusively the opposite of a vital fact. 35 In determining whether there is legally sufficient evidence to support the finding under review, we must consider evidence favorable to the finding if a reasonable factfinder could and disregard evidence contrary the finding unless a reasonable factfinder could not. 36 the bench and convert
(4) We hold that the trial court correctly followed express provisions of the family code by applying the parental presumption to the appointment of joint managing conservators this case. Upon the parental presumption was that finding rebutted, however, the trial court failed to make findings the presumption was rebutted. 29 The failure to make such findings is error. 30 This error was waived, however, because Shelley did not timely request additional findings of fact. 31 Shelley's first issue is overruled.
to the Grandparents as
in
the When reviewing an assertion evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in finding, we the determine that the evidence supporting the finding is so weak, or so contrary to the overwhelming weight of all the evidence, that the answer should be set aside and a new trial ordered. 37 that specifically stating how
record pertinent that to [297 S.W.3d 473] C. The Sufficiency of the Evidence to Overcome the Parental Presumption 2. Voluntary Relinquishment of Ryder for a Period of One Year or More We now turn to Shelley's contention in her second issue that insufficient evidence was presented by the Grandparents to rebut the voluntary presumption relinquishment impairment grounds. 32 The Grandparents contend that Shelley's sparse contact with Ryder from January 2004 to that she voluntarily January 2005 proves relinquished actual care, control, and possession of Ryder to them. We disagree.
either significant through or
Between January and April of 2004, Shelley maintained her permanent residence 1. Standards of Review
- 5 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) with Ryder and saw him on a majority of days. While she was absent from Ryder on several occasions during that time period, there is no evidence that she intended to surrender the care of Ryder. finding of significant impairment, we agree with Shelley that the evidence is factually insufficient to support such a finding.
a Impairment must be proved by preponderance of the evidence indicating that some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions of the parent, will probably cause that harm. 41 This is a heavy burden that is not satisfied by merely [297 S.W.3d 474]
of out the After Shelley moved Grandparents' residence in June 2004, the time she spent with Ryder decreased. 38 But, the testimony of both Shelley and Sharon shows that, although Shelley was often physically separated from Ryder in the latter part of 2004, she did not intend to relinquish control of him.
[297 S.W.3d 475] showing that the non-parent would be a better custodian of the child. 42 "Close calls" should be decided in favor of the parent. 43 Shelley testified that she had agreed with the Grandparents that Ryder would stay with them long enough to complete his school year, and that she would change Ryder's school and have him live with her the following year. Shelley stated the Grandparents about this plan "[w]eekly from the moment that [she] didn't stay at their house" and that she was "made to believe" that the change was going to happen. Sharon testified that she was aware of these plans when Shelley moved out of her house, and that she knew that Shelley's intention was to take Ryder back. She also admitted that even when Shelley moved away, she was "still involved in decisions regarding Ryder" and, most importantly, that Shelley "never actually, really relinquished ... control completely."
Evidence of past misconduct is not alone sufficient to show present unfitness. 44 "If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling." 45 that she talked with
The evidence offered at follows: trial was as Diane Booth, a licensed social worker who conducted another study in 2006 after Maslow issued his report, testified that Joseph and Sharon were "great grandparents" and that Shelley was a good mom who never put Ryder in any danger and was generally doing a good job parenting him. She also reported that Roger had drug addiction problems, that he described himself as a "practicing alcoholic," and that he seemed to be angry over the fact that he had been adopted, but that he had steady work and that he "loved being around Ryder." She further explained that when she met with Ryder, he was happy, but he was also confused about his living situation regarding the various people who had requested custody of him. She also testified that she received a letter from Ryder stating that he wanted to live with Shelley. Thus, while Shelley may have been physically apart from Ryder for a substantial part of 2004, there is no evidence that she voluntarily relinquished actual care, custody, and control of him to the Grandparents. 39 3. Significant Impairment of Ryder's Physical Health or Emotional Development Shelley also contends that the evidence is legally and factually insufficient to establish that appointing her and Roger as joint managing conservators would significantly impair Ryder's physical health or emotional development. Although there is some evidence to support a
Booth recommended that Ryder be placed with Shelley and opined that it would be in Ryder's best interest if the Grandparents fulfilled
- 6 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) a secondary role in a more typical grandparent relationship with Ryder. but he does not have the ability to be Ryder's primary managing conservator. Barbara Martinez, Chris's mother, testified that Shelley was a good mother who took good care of Ryder when he was at her house. According to Mrs. Martinez, Shelley bathed Ryder, did his laundry, disciplined him, and helped him with his homework. Kyra Anderson, Ryder's first grade teacher during 2004 and 2005, testified that the Grandparents were very involved in his school activities and in the progress Ryder was making in the classroom, that Ryder "fully enjoyed being with" them, and that Shelley was not involved with his schooling. 46 Roger testified that he resided with his parents for three years preceding the trial, that he was currently employed in the information technology field, and that he had previously been employed as a bartender at several locations. He stated that two years had passed from the last time he used illegal drugs and that he drank alcohol about once a week at the time of trial, becoming drunk occasionally. He expressed a desire to be a good father and also gave his opinion that Ryder should continue to reside with the Grandparents because he felt Ryder needed more "structure and support," but that Shelley should have equal time with Ryder and that she "loves [Ryder] very much." However, Roger also testified that in January 2005 Shelley threatened to take Ryder away so that he and the Grandparents would never see Ryder again. 48 He further said that when he first separated from Shelley he was concerned for Ryder's safety because he believed Shelley did not take care of Ryder's physical needs. Dee Henderson, who had custody of Shelley's daughter Lexi, testified that she had concerns about Shelley's ability as a parent because Shelley was unreliable and had only limited contact with Lexi. 47 She also testified, however, that she had no concerns that Lexi would be physically harmed while with Shelley, that she had no concerns about Lexi's safety at the Martinezes' house, and that she had never seen Shelley be physically or verbally abusive to Lexi or Ryder.
Sharon testified that she and Joseph first began to keep Ryder at their home every other weekend when he was born, and then they progressed to keeping him every weekend and part of the summer before Shelley and Ryder moved in with them in 2003. She also contended that Shelley was not very involved in Ryder's early education and that she often returned Ryder late from her Wednesday visits with him. Sharon explained that upon picking up Ryder from one of his visits to the Martinezes' house, she became concerned about broken glass surrounding a trampoline, a murky swimming pool, and an open flame on the stove, which Shelley stated was used for heating. She was also concerned that Shelley had taken Ryder to the nightclub during a poker tournament that was hosted there. Cathy Baczynski, a licensed professional counselor, that, during counseling, Roger discussed identity issues related to
testified [297 S.W.3d 476] his adoption as well as his substance abuse history, his need to overcome his ADHD, his frustration about living with his parents, and his lack of communication with Shelley. Baczynski also explained that she met with Ryder and gained the impression from him that Roger needed to be much more involved in Ryder's life. She also stated that Ryder seemed to be happy living with his Grandparents and that his needs were well met in their home, but that he would like to spend more time with Shelley and that, as a general rule, it is always best for a child's parents to have custody if possible. She concluded that Roger has made positive strides,
Sharon said that she saw Shelley slap Ryder one time, that Shelley told her that she spanks Ryder, and that after returning from visits with Shelley, Ryder had behavioral problems. She conceded, however, that Ryder missed Shelley
- 7 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) and that he and Shelley loved each other. She requested that the court allow her and Joseph to keep Ryder during school weeks and split the rest of Ryder's access equally between Roger and Shelley. Xanax—filled within the previous six months. No evidence was presented indicating that Shelley was still taking high dosages of prescription medications at the time of or recently before trial; in fact, a "prescription profile" exhibit submitted into evidence by the Grandparents listed no prescriptions for Shelley after 2005. Thus, while Shelley's drug use may have affected her fitness as a mother in the past, there was no evidence presented of any current that would drug use significant impairment to Ryder's physical health or emotional development in the present. Joseph testified that he was concerned that Shelley could not provide a stable financial environment for Ryder because she did not have a paying job, did not have a car in her name, and did not have her own place to live. Joseph described that Roger had taken a more active role in Ryder's life, had obtained a respectable job, had provided health insurance for Ryder, and had sought help from a therapist to deal with Roger's emotional problems.
cause regard to Shelley's With living and financial conditions, the evidence shows that, at the time of trial, Shelley and Chris, who also has a history of drug abuse, were living together at his parents' home. Chris, however, offered uncontroverted testimony that he had not used illegal drugs in at least the four years preceding trial. Also, the evidence established that at the Martinezes' five bedroom, two story house, Ryder had his own room and that Shelley's work at the nightclub on weekends could allow her to be a stay-at-home mom for Ryder during weekdays. 52 the Martinezes' house seemed to be stable. Mrs. Martinez testified that Shelley had become like a daughter Todd Maslow (who submitted the original social study report) testified that, despite his recommendation that Ryder [297 S.W.3d 477] should remain with his Grandparents, he would not have concerns about Ryder's safety if he stayed with Shelley and did not believe that Ryder living with Shelley would significantly impair Ryder's physical health or emotional development. He also testified that when he talked to Ryder when completing his initial study, Ryder told him he wanted to live with Shelley.
residence Shelley's at [297 S.W.3d 478] The Grandparents also rely on evidence of Shelley's history of drug use and her living and financial conditions as proof that Ryder's physical and emotional health would be impaired by the appointment of Shelley and Roger as joint managing conservators. At the time of trial, however, Shelley was not taking any medications. While she admitted that she had previously been dependent on drugs prescribed for her multiple sclerosis, and evidence established that she had taken high dosages of several types of prescription medications that sometimes negatively affected her, she testified that at the time of trial, she was not taking any prescription medications, she had no current symptoms from her multiple sclerosis, and she only had one prescription—for
to her and that if Chris's and her relationship became estranged, Shelley could continue to live at her house with Ryder. Although, as the Grandparents point out, Shelley does not own or lease a vehicle, carry health insurance, or maintain paid employment, Mrs. Martinez testified that Shelley has access to four vehicles at her house and that she is "free to take them anytime," Roger carries insurance for Ryder, and Shelley's lack of paid employment is "no evidence" of a potential significant impairment to Ryder. 53
for Finally, the Grandparents cite evidence in the record related to certain conditions at the Martinezes' house that they believe could cause harm to Ryder. For example, they note that the
- 8 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) Martinezes' backyard had a murky pool that was filled with leaves and a trampoline that had broken glass underneath it. Mrs. Martinez, on the other hand, testified that Ryder was never that an alarm allowed unattended outside, sounded if any door in the house was opened, and that if the trial judge was concerned about the safety of the pool, she would remedy those concerns. Sharon testified that she had learned that the broken glass was from a patio table that had blown into the pool during a windstorm; there was no evidence in the record as to how recently the windstorm had occurred. Sharon was also concerned at trial about an open flame used to heat the Martinezes' house, but she admitted that Ryder had been taught about fire hazards and that he was unlikely to attempt to play with the flame. January 2004 and January 2005, and remand the case for a new trial on the issue of whether the appointment of Shelley and Roger as joint managing conservators would not be in the best interest of Ryder because such an appointment would significantly impair his physical health or emotional development. 54
LIVINGSTON, J., filed a dissenting and concurring opinion. --------------- Notes: 1. Ryder was diagnosed with ADHD while in the second grade. 2. Specifically, the decree granted Shelley possession of Ryder on three weekends per month, Thursday evenings, spring breaks, some of the time during Ryder's Christmas break, Mother's Day, some other holidays, and forty-two days during the summer, but gave possession to the Grandparents at "all other times not specifically designated." Viewing the entire record under the legal and factual sufficiency standards of review articulated above, we conclude that, while there is some evidence that placing Ryder under the joint managing conservatorship of Shelley and Roger might significantly impair the physical health and emotional development of Ryder, the evidence is factually insufficient to support a finding of such impairment.
3. See Tex.R. Civ. P. 296. 4. See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.- Dallas 2008, no pet.); Earvin v. Dep't of Family & Protective Servs., 229 S.W.3d 345, 350 (Tex.App.- Houston [1st Dist.] 2007, no pet.). III. Conclusion
5. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). We hold that the trial court abused its discretion by appointing the Grandparents as joint managing conservators because the evidence is insufficient to support the trial court's finding that the parental presumption was rebutted. There is no evidence that Shelley voluntarily relinquished actual care, custody, and control of Ryder for one year or more, and the evidence is factually insufficient to prove that the appointment of Ryder's parents as joint managing conservators would significantly impair Ryder's physical health or emotional development. We, the provisions of the decree pertaining to joint managing conservatorship, render judgment that a non-parent shall not be appointed joint managing conservator based on Shelley's alleged relinquishment of Ryder's care, voluntary custody, and control for the period between
6. Id. 7. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). 8. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002). 9. Tex. Fam.Code Ann. §§ 153.131, .373 (Vernon 2008). therefore, reverse
that in part, 10. Section 153.004 states, in determining conservatorship, a court shall consider evidence of the intentional use of abusive physical force and that a court may not "appoint joint managing conservators is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one if credible evidence
- 9 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) parent directed against the other parent, a spouse, or a child ... that results in the other parent becoming pregnant with the child." Tex. Fam. Code Ann. § 153.004(a)-(b) (Vernon 2008); see In re R.T.H., 175 S.W.3d 519, 521 (Tex. App.-Fort Worth 2005, no pet.). 22. See Tex. Fam.Code Ann. § 153.131(a) (" both parents shall be appointed as joint managing conservators of the child") (emphasis added), § 153.131(b) ("It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child.") (emphasis added). 11. Tex. Fam.Code Ann. § 153.131.
23. See Tex. Fam.Code Ann. § 153.131(a) (" both joint managing parents shall be appointed as conservators of the child") (emphasis added), § 153.131(b) ("It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child.") (emphasis added). The dissent contends that the presumption does not apply to the grandparents because both parents were appointed as joint managing conservators. But section 153.131 clearly the the presumption requires appointment of both parents as joint managing conservators be rebutted by any non-parent seeking a joint managing conservatorship appointment in lieu of or in addition to both parents. Id. Id. §§ 153.131(a),(b), .373. Id. §§ 153.131(a),(b), .373; see In re N.J.G., 980 S.W.2d 764, 766 n. 1 (Tex.App.-San Antonio 1998, no pet.). Chavez v. Chavez, 148 S.W.3d 449, 459-60 (Tex.App.-El Paso 2004, no pet.); see Tex. Fam.Code Ann. §§ 153.004, .131, .373.
favoring that 16. 881 S.W.2d 297 (Tex. 1994). 17. Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 1, sec. 14.01(a), 1993 Tex. Gen. Laws 2989, 2989, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282; Act of May 28, 1989, 71st Leg., R.S., ch. 370, § 1, sec. 14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282.
24. See Connors v. Connors, 796 S.W.2d 233, 239 (Tex.App.Fort Worth 1990, writ denied). 25. See Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 473-74 (Tex.App.-Fort Worth 2007, no pet.) (rejecting argument that was substantively amended should be construed as if it had not been amended).
that statute Brook, 881 S.W.2d at 300.
26. Tex. Fam.Code Ann. § 153.131 (emphasis added). See Tex. Fam.Code Ann. § 153.131(b), Historical and Statutory Notes ("Acts 1995, 74th Leg., ch. 751 ... added subsec. (b)," which provides for "rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child").
27. Id. 28. Moreover, the two El Paso Court of Appeals opinions on which the dissent relies actually support the conclusion that the parental presumption only applies the context of determining joint managing conservatorship between a parent and non-parent. See Sotelo v. Gonzales, 170 S.W.3d 783, 788 (Tex.App.El Paso 2005, no pet.); In re De La Pena, 999 S.W.2d 521, 534-35 (Tex.App.El Paso 1999, no pet.). See Act of May 14, 1991, 72nd Leg., R.S., ch. 161, § 2, 1991 Tex. Gen. Laws 771, 771, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282; see also Brook, 881 S.W.2d at 298.
to primary custody in 21. While we have found no legislative history beyond the changes made to the current statute after section 14.01 was repealed that expressly indicates that the legislature intended to overrule or nullify Brook when it repealed section 14.01, it is clear from a comparison of the two statutes that the post- Brook changes to the statutes were substantive.
29. The trial court also offered no explanation for why he appointed Shelley and Roger joint managing conservators of Ryder after concluding that the presumption was rebutted, i.e., that it would not be in Ryder's best interest to appoint his parents as joint managing conservators.
- 10 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 30. Chavez, 148 S.W.3d at 459-60. that voluntary 1997, writ denied) relinquishment ends when temporary restrictions are ordered). (suggesting 31. Tex.R. Civ. P. 297, 299; Chavez, 148 S.W.3d at 459-60.
40. See Tex. Fam.Code Ann. § 153.131(a); Sotelo, 170 S.W.3d at 788. 32. Joseph and Sharon have not contended on appeal that the evidence supported a finding that Shelley exhibited a history of family violence, so we will not analyze the parental presumption. See Tex. Fam.Code Ann. § 153.131(b).
41. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990); Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (stating that the "link between the parent's conduct and harm to the child may not be based on evidence which merely raises a surmise or speculation"); see Tex. Fam.Code Ann. § 105.005 (Vernon 2008) (stating that findings in family law cases must generally be proved by the preponderance standard). this ground for rebutting M.P.B., 257 S.W.3d at 811-12; In re M.C.F., 121 S.W.3d 891, 895, 899 (Tex.App.-Fort Worth 2003, no pet.). 34. M.C.F., 121 S.W.3d at 895. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362- 63 (1960).
42. Lewelling, 796 S.W.2d at 167. 43. Id. at 168. 44. Id. Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005). 45. May v. May, 829 S.W.2d 373, 377 (Tex. App.- Corpus Christi 1992, writ denied) (op. on reh'g); see S.W.H., 72 S.W.3d at 777-78 (holding that the mother's past severe drug addiction and past incarcerations related to drug use did not create a present likelihood of significant impairment to her child). Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on reh'g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King's Estate, 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).
46. At trial, Shelley testified that she visited Ryder's school two days a week and that she went to his school-related activities. 38. According to Sharon's calendar, Shelley saw Ryder only through times December 2004.
from June twenty
47. Shelley has had six pregnancies. Among these, she had a daughter in 1994 named Lexi whom she lived with for only six months and shared access to at the time of trial, and she also had a baby with Chris after her miscarriage, who was six months old when the trial began. 39. Even if we were to conclude that some evidence of relinquishment existed beginning in June 2004, when Shelley moved out of the Grandparents' home, she filed answers the Grandparent's petition in intervention in February 2005 and, therefore, ended any period of voluntary relinquishment approximately seven months after leaving the Grandparents' house to leave Ryder with his grandparents. See In re S.W.H., 72 S.W.3d 772, 777 (Tex.App.Fort Worth 2002, no pet.). Moreover, in May 2005, the trial court entered a temporary order restricting Shelley's access to Ryder. In light of such an order, any relinquishment by Shelley that in effect was the order was occurred while involuntary. temporary (concluding Id. restraining order entered against a parent ended the parent's period of voluntary relinquishment); see also In re M.W., 959 S.W.2d 661, 668 (Tex.App.-Tyler
to Roger's petition and
48. Sharon's testimony confirmed the threat. 49. Specifically, Maslow stated that the move to live with Shelley "could affect [Ryder's] emotional adjustment; but seriously impair, no." He did, however, testify that he believed the Grandparents and Roger were providing Ryder with security in his current placement, that Ryder should remain with them, and that he retained some concerns about some of Shelley's circumstances and her truthfulness on some of the responses she gave to him in his initial survey. that a
- 11 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 50. Shelley had taken many prescription medications, including Suboxone, Seroquel, Hydrocodone, Ambien, Lunesta, Lamictal, and Xanax at various times before trial. These medications sometimes made her dizzy or drowsy with slurred speech. Sharon testified that in 2003, Shelley often left medication out in places that Ryder had access to, and that in 2005, during one of Shelley's scheduled visits with Ryder, the medication caused Shelley to sleep for a prolonged period on Ryder's bedroom floor. majority departs from Texas Supreme Court precedent and our own precedent in its holding.
The Collective Appointment of the Grandparents and the Parents as Ryder's Joint Managing Conservators Shelley's argument in her second issue that the trial court abused its discretion when it appointed the Grandparents as Ryder's joint managing conservators along with the Parents in that same role presupposes that the Grandparents were required to overcome the statutory parental presumption to gain the appointment. That supposition (and the majority's holding that follows the supposition) is erroneous. 51. A pharmacist called by Roger's attorney described the medications Shelley had taken and opined that the dosages were high, but admitted that she had limited knowledge of multiple sclerosis and the reasons why Shelley's doctors may have been prescribing the types and amounts of medication she was taking.
Sections 153.131 and 153.373 of the family code establish that to overcome the presumption that a parent must be appointed as a managing conservator of a child, a court must find that (1) appointment of the parent would significantly impair the child's physical health or emotional development, (2) the parent has exhibited a history of family violence, or (3) the parent voluntarily relinquished care, control, and possession of the child to a nonparent for a year or more. Tex. Fam.Code Ann. §§ 153.131, .373 (Vernon 2008); see In re N.J.G., 980 S.W.2d 764, 766 n. 1 (Tex.App.-San Antonio 1998, no pet.) (citing sections 153.131 and 153.373 in a discussion of the parental presumption). But these findings are not required when both parents are named managing conservators. 52. Shelley helped manage a nightclub that she, Chris, and Chris's parents jointly owned, although she received room and board in lieu of salary. Chris's mother watched Ryder when Shelley worked. 53. See Lewelling, 796 S.W.2d at 167. 54. Because we have reversed and remanded the issues related to conservatorship and possession, we need not address Roger's sole issue in which he contends that the trial court abused its discretion by rendering a custody order that, although naming him a joint managing conservator of Ryder, did not designate his periods of possession and access. See Tex.R.App. P. 47.1. --------------- [297 S.W.3d 479]
Section 153.372 authorizes a trial court to appoint parents and nonparents together as joint managing conservators. Tex. Fam.Code Ann. § 153.372(a) (Vernon 2008). And Texas Supreme Court precedent holds that the mere appointment of grandparents as joint managing conservators alongside parents in that same role does not require a trial court to apply the parental presumption to exclude the grandparents; rather, the trial court may make such an appointment if it deems the appointment to be in the best interest of the child. Brook v. Brook, 881 S.W.2d 297, 299-300 (Tex.1994). TERRIE LIVINGSTON, Justice, dissenting and concurring. The majority holds that the trial court could (the not Grandparents) together with Shelley and Roger joint managing (the Parents) as Ryder's conservators without applying the statutory parental presumption and determining that the Parents voluntarily relinquished care, custody, or control of Ryder or that the Parents' appointment as managing conservators would significantly impair Ryder's physical health or emotional development. See Majority op. at 470-72. The
and Joseph Sharon appoint
- 12 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) In Brook, the court reviewed the collective appointment of the mother and the mother's parents as joint managing conservators to the exclusion of father and unanimously reasoned that the statutory parental presumption "contemplates a situation in which neither of the parents are awarded" managing conservatorship. Id. at 298-99. The court explained that the parental presumption applies "only to those situations in which a nonparent seeks custody in lieu of a natural parent." Id. at 299 (emphasis added). Finally, the court noted that "[t]he purpose of the statute, to codify the preference for giving custody to a parent, has been met in the present case. The fact that a nonparent shares custody does not detract from the fact that one of the child's parents does have custody." Id. at 300. We have expressly held the same. Connors v. Connors, 796 S.W.2d 233, 239 (Tex.App.- Fort Worth 1990, writ denied) (holding that the presumption "does not preclude the appointment Brook ) are named joint managing conservators, that possible modification would have no effect on Brook 's relation to this case because here the trial court did name both of the Parents as joint managing conservators, and thus completely complied with subsection (b). Thus, for section 153.131(b) to achieve the precedent-altering result that the majority holds it does under the facts of this case, it would need to go beyond stating that "[i]t is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child" to say something similar to "it is a rebuttable presumption that the appointment of parents of a child as joint managing conservators to the exclusion of all other parties seeking custody is in the best interest of the child." It does not do so. 2
the
[297 S.W.3d 481] It is "fundamental to the very structure of our appellate system that [the Texas Supreme Court's] decisions be binding on the lower v. courts." Dallas Area Rapid Transit Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2767, 174 L.Ed.2d 284 (2009); see Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex.2002) (explaining the function of a court of appeals to abrogate or the modify established precedent"). Under established precedent of the supreme court in Brook and of our own court in Connors, the Grandparents did not have to overcome the parental presumption for their appointment as joint managing conservators, and I would hold that their appointment as such is in Ryder's best interest under the factors listed in Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976). Thus, I would affirm the trial court's conservatorship appointment, and I dissent to the portion of the majority's opinion reversing the appointment. [297 S.W.3d 480] of a parent to serve jointly with a non-parent" and that it applies only if "appointment is to be denied to both parents"). While Brook cited a previous version of the family code, the language analyzed in the decision is almost exactly the same as the language that now appears in subsection (a) of section 153.131. Brook, 881 S.W.2d at 298-99. The only addition to the presumption statute that amounts to anything beyond rearranging words is subsection (b) of section 153.131, which states that it is "a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child."
that it "is not The majority solely relies on subsection (b) as having precedent-overruling importance. See Majority op. at 470-72. But while it is possible (although not supported by any specific authority or legislative history in the majority's opinion beyond the statutory amendment itself) that subsection (b) could have modified Brook to the extent that the presumption applies unless both parents (rather than a single parent, like in
Primary Possession Although Brook 's application supports the Grandparents' appointment as affirming managing conservators along with the Parents, it
- 13 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) does not extend to their award of Ryder's primary possession, as challenged by Shelley. Section 153.134(b)(1) of the family code states that in rendering an order appointing joint managing conservators, a court shall designate which conservator has the exclusive right to determine the primary residence of the child. Tex. Fam.Code Ann. § 153.134(b)(1) (Vernon 2008). in order to reach the result in De La Pena. " Id.
I agree with and would adopt the El Paso Court's position, applying the same reasoning as expressed in Sotelo and De La Pena. In De La Pena, sought managing conservatorship to the exclusion of both parents in that same role. De La Pena, 999 S.W.2d at 524-25. Because she sought complete exclusion of the parents, the El Paso Court properly applied the statutory presumption (as interpreted by Brook ) that "the best interest of a child is served if a natural parent is appointed as a managing conservator." Id. at 527. Then, in applying the primary possession issue, the El Paso Court held and explained that
the child's aunt In Sotelo v. Gonzales, the El Paso Court of Appeals decided that in an original custody determination, the parental presumption "applies when a non-parent and parent are appointed joint managing conservators of a child but the non- parent is given primary custody." 170 S.W.3d 783, 788 (Tex.App.-El Paso 2005, no pet.) (citing In re De La Pena, 999 S.W.2d 521, 534- 35 (Tex.App.-El Paso 1999, no pet.)). The court reasoned that to "hold otherwise would permit the court to apply the presumption in appointing the parent a joint managing conservator but nevertheless choose the primary residence of the child on the basis of a heads-up best interest test, with the court determining which of the parties is the `better' choice." Id. This would, according to the El Paso Court, result in the "appointment of a parent as a managing conservator in name only, a paper title which eviscerates the purpose of the statute." De La Pena, 999 S.W.2d at 535.
the presumption to as between a parent and nonparent, unless the court finds that appointment of the parent would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development, the parent shall be appointed sole managing conservator or the parent and nonparent shall be appointed joint managing conservators. If the court chooses the latter, the parent awarded primary possession unless such an order would not be in the best interest of the child because it would significantly impair the or health physical child's emotional development. [ 3 ] In contrast, the San Antonio Court of Appeals held in Gardner v. Gardner that the parental presumption does not apply to the issue of primary possession between parent and nonparent joint managing conservators. 229 S.W.3d 747, 752 (Tex.App.-San Antonio 2007, no pet.). In Gardner, the parties agreed to joint managing conservatorship of the children at issue, and the only remaining custody issue was which joint managing conservator was going to be awarded the right to determine the primary residence. Id. The court reasoned that because the "plain words of [section 153.131] do not the address or contemplate application of [parental] presumption to the issue of primary possession, [it] would have to rewrite the statute shall be
Id. at 534-35 (emphasis added). Our precedent establishes that the basis of the "deeply embedded" statutory parental presumption is to protect the "natural affection usually flowing between parent and child." In re M.N.G., 113 S.W.3d 27, 35 (Tex.App.-Fort Worth 2003, no pet.). Also, a parent's rights to "the and management" of his or her children are constitutional interests "far more precious than
companionship, custody, care, [297 S.W.3d 482]
- 14 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 L.Ed.2d 599 (1982). Implicit in these rights is the right to decide where one's child is to reside. 2008). Another section of the code states that "[i]t is the policy of this state to ... optimize the development of a close and continuing relationship between each parent and child." Id. § 153.251(b) (Vernon 2008). The majority says that applying the parental presumption joint managing conservator has the right to determine a child's primary residence would require us to "legislate from the bench." 4 Majority op. at 472. But the family code supports the application of the presumption are joint managing conservators designated as without the presumption under circumstances like those in Brook. As the El Paso Court explained, "Section 153.372(b) [of the family code] provides that the procedural and substantive standards regarding a court- ordered conservatorship provided by Subchapter C of the Family Code apply to a nonparent joint managing conservator. The very first section of Subchapter C contains the parental presumption." De La Pena, 999 S.W.2d at 534; see Tex. Fam.Code Ann. § 153.372(b) (Vernon 2008).
to which I would hold that erasing the parental presumption in an original suit on custody when a court appoints multiple parties as managing conservators but gives primary possession to a nonparent would weaken these constitutional and statutory interests and would create an unintended result by placing the parent and nonparent on equal ground for the trial court's real custody determination. Thus, because I agree with the majority that the evidence in this case is insufficient to support the trial court's the finding the Grandparents rebutted parental presumption, I would reverse the provisions of the trial court's order pertaining to the Grandparents' right to determine Ryder's primary residence and remand this case for further proceedings related to those provisions. I would also sustain Roger's sole issue and reverse the portion of the order limiting Roger's access to and possession of Ryder because as all parties have agreed, there is no evidence in the record supporting that limitation. even when nonparents applying
that joint managing Other sections of the family code also support presuming that parents should [297 S.W.3d 483]
Conclusion maintain the right to designate a child's primary residence, which, as our supreme court has explained, is a crucial component of managing conservatorship. See Phillips v. Beaber, 995 S.W.2d 655, 660-61 (Tex. 1999) (equating the right of primary possession with "custody" and adding that primary possession and establishing a child's residence are "core rights of managing conservatorship"); see also Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (explaining that "the interest of parents in the care, custody, and control of their children ... is perhaps the oldest of the fundamental liberty interests"). For instance, the very first section of the conservatorship chapter of the family code relates that the state's public policy is to "assure that children will have frequent and continuing contact with parents." Tex. Fam.Code Ann. § 153.001(a)(1) (Vernon
For these reasons, I respectfully dissent to the majority's opinion and the portion of judgment reversing the trial court's appointment of the Grandparents and Parents together as Ryder's joint managing conservators, but I concur with the majority's remand of the case for further proceedings. --------------- Notes: 1. Subsection (a) of section 153.131 currently provides,
the court that finds [U]nless appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly
- 15 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)
impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed joint managing conservators of the child. parents shall be appointed as conservators of the child." joint managing
2. The majority states, "There is no language in section 153.131 that indicates that the presumption is inapplicable to the appointment of non-parents as joint managing conservators when the trial court also appoints one or both parents." Majority op. at 471. But there was likewise no such language in the version of the statute analyzed in Brook. Brook, 881 S.W.2d at 298-99. The majority also argues that the Brook and Connors opinions regarded "a former statute that did not contain a parental presumption joint requiring managing conservators unless rebutted." Majority op. at 472. But again, that change to the former statute is irrelevant to this case because the trial court did appoint both Parents as joint managing conservators. as Tex. Fam.Code Ann. § 153.131(a). At the time of the Brook decision, the former section of the family code relating to the presumption stated,
A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:
that both parents be appointed 1) the court finds that appointment of the parent or parents would not be in the best interest of the child the appointment would because the child's significantly emotional physical development.
3. This language signals the El Paso Court's opinion that where a court does not find significant impairment presumption, appointment of parents alongside nonparents as joint managing conservators is still proper because in such a situation, the parents have not been excluded from managing conservatorship. Id.; see Brook, 881 S.W.2d at 299-300. impair the under parental health or Act of May 28, 1989, 71st Leg., R.S., ch. 370, § 1, sec. 14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282; see Brook, 881 S.W.2d at 298. In essence, the legislature amended the family code to switch the order of the words existing in both provisions; it moved the words "the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development" from behind to in front of the words "[a] parent shall be appointed sole managing conservator or both
4. The majority uses the "legislate from the bench" pejorative phrase in an attempt to show why it would not apply the parental presumption to the right to determine Ryder's primary residence, but it does not explain why that same phrase would not apply to its own expansive interpretation of section 153.131 when that section applies to the appointment of both parents as a child's managing conservators. ---------------
- 16 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)
329 S.W.3d 186 David GRAY, Appellant, v. Ann Wood SHOOK, Appellee.
No. 13-09-00255-CV. Court of Appeals of Texas, Corpus Christi-Edinburg. Nov. 30, 2010. Rehearing Overruled Jan. 13, 2011. [329 S.W.3d 187] stating, "The best interest of [G.W.] will be served by the appointment of [Lucy] as joint managing conservator [of G.W.] with the exclusive the primary residence of the child...." Gray also requested that "appropriate orders be made for access to the child and the allocation of the rights and duties of the conservators." On January 23, 2008, Ann Wood Shook, G.W.'s maternal grandmother, filed a petition in intervention stating that she "would show that it is in the best interest of and Respondent [Lucy] be appointed joint managing conservators of further requested that she "be granted the exclusive right to establish the primary legal residence of the child" and that Gray be appointed possessory conservator of G.W. Gray then amended his petition requesting that he be appointed joint managing conservator with the exclusive right to designate the primary residence of G.W. William A. Dudley, Corpus Christi, for Appellant.
right to designate Jack W. Marr, Marr, Meier & Bradicich, Victoria, for Appellee. Before Justices YAÑEZ, BENAVIDES, and VELA.
Intervenor [G.W.] that Opinion by Justice BENAVIDES.
[G.W.]." Shook Appellant, David Gray, appeals the trial court's appointment of appellee, Ann Wood Shook, as sole managing conservator of his daughter, G.W. By one issue, Gray contends that the trial court abused its discretion because (1) Shook did not offer sufficient evidence of harm to overcome the parental presumption; (2) if the parental presumption was overcome, Shook did not establish harm by a preponderance of the evidence; and (3) Shook offered no evidence of any specific acts or omissions by Gray that would significantly impair the physical health or emotional development of G.W. We reverse and remand.
[329 S.W.3d 188] On June 30, 2008, a bench trial was held at which Shook, Gray, Lucy, and Cheryl Green testified. Shook stated that G.W. has lived in her home in Victoria, Texas since she was born and that when Lucy moved out of Shook's home approximately two years earlier, G.W. continued living with Shook and her husband. Shook testified that she and her husband have been "raising" G.W. for "about a year-and-a-half." I. Background David Gray and Lucy Wood are the biological parents of G.W., who was born on July 9, 2003. On January 30, 2007, Gray filed a relationship suit affecting
the parent-child
- 1 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) According to Shook, she has filled the role of co-parent with Lucy, and since G.W. was born, Shook and her husband have "taken part in all aspects of raising [G.W.] together" because Lucy "didn't know how much part [Gray] would be in her life." Shook testified that G.W. spends more time with her than with Lucy and that presently, she and her husband are primarily Shook responsible acknowledged, however, that Lucy was still providing care for G.W. and asked that Lucy be appointed joint managing conservator. to Seattle, Washington. Shook said that when G.W. was born, Lucy moved into Shook's home and that for a short time, Gray took an "active role" and visited G.W. at least every other weekend; however, the visits soon became "sporadic."
Shook testified that G.W. has started pre- school and that G.W. attends gymnastics, dance class, and play groups with her friends. According to Shook, Lucy usually spends the night at Shook's house and does not take G.W. away for overnight visits because they do not want to "jerk [G.W.] back and forth." Shook stated that she does not intend to move away from Victoria. raising G.W. for Shook stated that it was in G.W.'s best interest for Gray to be appointed possessory conservator and that it would significantly impair G.W.'s physical health if the trial court appointed Gray managing conservator. Shook to be appointed testified managing conservator with to determine the residence of the child. According to Shook, if she were not appointed managing conservator, it would significantly impair G.W.'s physical health because
testified Shook that Gray did not acknowledge G.W. as his child while Lucy was pregnant, but after G.W. was born, a paternity test was performed. Shook stated that when Gray was transferred to New Jersey, he did not visit G.W. "real often" and that during that time, G.W. bonded with Shook and Lucy; Shook explained that bonding means "creating a safe place—a place in the relationship where a child feels safe, unquestionably taken care of." Shook did not believe that G.W. bonded with Gray during the first year of her life. She stated that after approximately two years in New Jersey, Gray moved to Denver; during that time, he visited that she wanted
right the [i]f [G.W.] were to be taken away from her residence, the only home she's ever known, and moved across the country where she has no family, no support system, I feel—and as an educator and with a degree in counseling, I feel that it would be—and her grandmother, I feel that it would be harmful to her because she has a lot of insecurities now.
[329 S.W.3d 189] G.W. two to three times per year. According to Shook, while Gray has lived in Seattle, he has visited G.W. three to four times per year and that in the last year, Gray had seen G.W. "[a] little more regularly." When asked, "And if you were to define her world of comfort, who are the people that are involved in her world of comfort right now," Shook replied, "My husband, myself[,] ... her mother[,] and her [maternal] aunt and her [maternal] uncle." Shook claimed that Gray had not contacted G.W. by telephone on a regular basis and that to her knowledge, Gray had only called G.W. once since she was four years old. When asked what the impact on G.W. would be if she were removed from On cross-examination, Shook stated that Gray "arrived" after G.W.'s birth and that he did not participate during the pregnancy and did not pay for the medical expenses related to G.W's birth. According to Shook, from the time of G.W.'s birth until the time of trial, Gray had not had contact with G.W. on a monthly basis. Shook stated that Gray has had approximately three to four visits with G.W. per year in the last five years. Shook testified that Gray lived in Houston when G.W. was born; he then moved to New Jersey, then to Denver, Colorado, and then
- 2 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) Shook's home and moved to Seattle, Shook stated: [c]ounselors other than myself, child counselors that [G.W.] has visited with that [sic] has told me this and is willing to testify here today. It's not just my opinion, it's ... Any adolescent child psychology book that you read, when you take a child's world away from them, the only world that they know, and put them in another world has harmful effects.... [And G.W.] would not have family support [if she moved to Seattle].... [Gray] has not one relative that lives in Victoria has a wide family support system and that is the most important thing in her life.
It would be devastating at this point in her life. Her world as a five-year-old revolves around her safety and her security. And she and already worries obsesses over things because of the insecurity of her dad in and out of her life. The only thing constant in her life since birth has been my husband and I and her mother has been there as a presence.
in Seattle. [G.W.] Shook stated that her "position is [Gray] should see [G.W.] more often, that he needs to build a relationship and be a full part of her life, not just visit occasionally" and that it would be "devastating to [G.W.]" if Gray were allowed to transport G.W. to Seattle because she had "never been more than a night or two without [Lucy], [Shook,] or [Shook's] husband." According to Shook, no relationship exists between G.W. and Gray; therefore, Gray's visitation should be increased gradually "until [G.W.] feels safe and comfortable with him at [the Shooks'] home in Victoria or other places."
The trial court asked Shook several questions regarding Lucy's parental involvement. In her answers, Shook acknowledged that Lucy does not visit G.W. every day, does not pay any child support to Shook, and that Shook still provides financial support to Lucy. When asked why Shook had possession of G.W., Shook replied: [329 S.W.3d 190] On re-direct examination, Shook stated that although Gray has been interested in visiting with G.W., "[t]he desire for seeing her more than he has been is sudden as of the last hearing." Shook believed that if G.W. were transported to Seattle, she could suffer physical harm, such as "stomach [aches], throwing up, grinding her teeth." Shook testified that the trial court had ordered Gray to visit G.W. three times before the end of the year 2007 because Gray had only visited G.W. once that year and that Gray had complied with the order. Lucy suffers from depression, which she is being treated for and sees a doctor and is trying to get help. She maintains a job fulltime and she struggles to provide a place where [G.W.] to can come. She struggles provide a car. She's having a hard time. And she wants to be fulltime mother but she a always we've feels—and discussed openly [G.W.] between ourselves—and we feel together that it's better not to drag [G.W.] from one place to the other. Lucy visits her at our home and she may financially have to move back into our home with [G.W.]. Shook denied that she and Lucy "resisted" allowing Gray any visitation time with G.W. and that they had "always encouraged [Gray] to be part of her life." When asked to substantiate her opinion that G.W. would suffer from physical and emotional harm if she were removed from Shook's home, Shook stated that:
- 3 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) Shook stated that she believes that G.W. is safer living with her rather than living with Lucy and that she and her husband have been the "only consistent thing" in G.W.'s life. could occur communication. Green stated: if Gray maintained regular
from what I You know, time understand, [G.W.] interacts with [Gray] is when he's here. There's no phone calls, there's no letters, there's no little pictures sent in the mail, none of those things that would be appropriate communication with a four- frequent year-old, which when parents are geographically distanced, they make the effort to have regular weekly phone some kind of contact or interaction with a child. the only Green, a licensed clinical social worker, 1 testified that she had been counseling G.W. for two months prior to the trial due to G.W.'s separation anxiety. Green stated that: has had [G.W.] several instabilities in her life to date. She's been back and forth with her biological mother and is currently residing primarily with her biological grandmother and step grandfather. There's been inconsistencies due the mother's difficulties, which have led to some anxieties in this life. She has some child's separation anxiety, she doesn't like to be alone, she's very controlling, she's very needy, lots of attention. She needs won't sleep alone in a room.
is to
According to Green, G.W. considers Shook her "primary parent" and she feels "safe" in Shook's home environment. Green testified that because of G.W.'s separation anxiety, a situation that causes more stress, such as allowing her to leave her home, could cause long-term problems [329 S.W.3d 191] stability According and to Green, consistency are very important to a child experiencing anxiety. Green explained that a child G.W.'s age is not able to bond with a person who visits every three to four months and that for bonding to occur, more frequent contact is necessary. When asked whether is detrimental to a relationship between a child and a parent for there to be infrequent or large gaps between visits, Green replied that it would not affect the relationship in a positive manner and "as far as the two people bonding together, it's going to keep that from happening." She opined that for a child to bond to someone, that person must be consistently in the child's life. Green stated that to achieve that level of bonding, the person should have regular communication with the child by mail, telephone, or "face-to-face." Green testified that visits once every two months are inadequate for bonding to occur and that she did not "feel" that G.W. had an adequate bond with Gray, meaning that G.W. "would sense" Gray as a stranger. Green opined that bonding
such as "[p]oor performance in school, poor socialization, difficulty in relationships" and more serious problems such as depression and the risk of drug use. Green explained that extended periods of visitation with Gray in Seattle could cause G.W. to "regress, she could become increasingly more anxious and more clingy." Green stated, "I understand that when she's gone on visits in the past with the father she's been throwing up out of anxiety, possibly, since it's been a recurring event." it
Green testified that if G.W. was removed from Shook's home, she would "freak out," cling to Shook, cry, scream, and throw up. According to Green, if the visitation schedule "is too accelerated," there could be problems "such as the continued vomiting during visits ... bed- wetting ... anxiety.... Maybe even she would become more controlling, more bossy, which could cause problems with her peer interaction."
- 4 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) Gray testified that he works for Skansa, USA Building as an engineer and his salary is $85,000 a year. According to Gray, in the past, there has been "some resistance" to his visiting with G.W. and that there was difficulty in exercising his last visitation with G.W. Gray stated: that they would be down in a few hours.
According to Gray, the visitation that was scheduled to begin at 9:00 a.m. actually began at 1:30 p.m., and he did not make that time up by returning G.W. later. Gray stated that his visitation with G.W. went "exceptionally well," they had a lot of fun together and that he and G.W. have a strong healthy bond and relationship. The day prior to me making the trip down here I called Lucy, her mother—G.W.'s mother, that is—and inquired where and when I could pick her up, understanding that it was nine, but just to confirm things. And [Lucy] informed me that her daughter was out of town and didn't know exactly when she'd return or where she was at that moment but she would call and inquire into that. And I asked her to finally return my call and let me know what time the next morning I could pick her up and where that would be.
testified that he lives with his Gray girlfriend, Allison, in a house he recently purchased and that there is a bedroom for G.W. Gray started a college fund for G.W. and provides health insurance for G.W., which he started doing "immediately following the first month of [G.W.'s] life." Gray claimed that at the time of G.W.'s birth, it was "very unclear who the father was" and that was the reason Lucy carried her own medical insurance during the pregnancy and birth. Gray stated that he was requesting custody of G.W. because it had become increasingly difficult to be as involved in her life as he would like to be. Gray testified that he had not been aware that G.W. lived with Shook until she filed her petition for intervention; therefore, when he became aware of the situation, Gray decided that he should seek custody of G.W. Gray believed A few hours later, seven o'clock my time, nine o'clock here, I was getting ready to board an overnight plane flight down here and I called back—I've also called [Shook's] house at that time to see if I could find someone could that that question. Phone answer calls were answered, messages were left and I never heard back from them.
[329 S.W.3d 192] there
that G.W.'s living conditions were temporary and "evolved out of convenience almost in that Lucy was not taking care of [G.W.] as much as needed...." He also believed that he could provide for G.W. and nurture and love her as much as Shook has. Gray stated: not And the next morning on my way down from Houston in a car, after flying in there, I made another round of calls with no answers or return messages. And then later in that morning I got a call [Shook], informing me that they were in Austin or somewhere in that area and that they were thinking about leaving relatively soon,
in interest Lucy's [G.W.'s] upbringing has not been as we would hope as a parent, and I think that's even gone slightly less over the years and just kind of withered away. I think as a young mother she's been, you know, reluctant to give up parts from
- 5 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)
of her life that, you know, are enjoyed by single people and it's put [G.W.] in an uncomfortable situation there. to relocate from Seattle. According to Gray, if G.W. moved to Seattle to live with him, due to the flexibility of his work schedule, he could on certain occasions work from home and would be able to transport G.W. to and from her school. On cross-examination, Gray stated that Lucy had not been willing to provide financial support and time to G.W. but that he has done so. Gray stated that he lived in New Jersey for approximately one year and that he would be "hard pressed to recall the exact number" of times he visited G.W., but thought he saw her every two months on average. Gray claimed that at that time, it was difficult to contact G.W., and Lucy made visitation difficult for him by only allowing short, supervised visits with G.W. Gray stated that when he lived in Colorado, he visited G.W. on average every two months. Gray testified that he was unable to visit G.W. on a monthly basis because his employer only allowed ten days of vacation per year and therefore, "[t]here's not that many days in the year vacationwise that." On cross to do examination by Shook's attorney, Gray testified that in order to visit G.W. in Victoria, he is required to take at least "three days of vacation wrapped around a weekend." Therefore, Gray stated, "Ten days of vacation means you do that three times a year, you've used your vacation for that year." Gray also explained that it was expensive to make more visits. When asked if he had "telephone visits" with G.W., Gray replied, the past had many phone "I have conversations with her. In recent months phone calls are unanswered, unreturned. Phone records could easily indicate the hundreds of phone calls tabbed and made." No phone records were admitted into the record.
Gray stated that the reason he could not visit with G.W. more than once every two months is due to her inability to leave Victoria. Gray thought that it would have been better if G.W. had been allowed to travel by plane to visit him in addition to his visits to Victoria. According to Gray, for "close to three years," he attempted to negotiate with Lucy a plan for G.W. to visit him. Gray explained, "I was hoping that we could eventually work something out that was mutually agreeable. Eventually communications have broken down to the point that phone calls are unreturned, unanswered, and they were unbending in their requests and demands." Gray acknowledged that "[v]isitation was highly restrained, but as a mature, responsible parent [he] always hope[d] and [his] goal [329 S.W.3d 193] was that [he and Lucy] could work out some mutually agreeable terms and conditions of that." According to Gray, his bond with G.W. is "very strong," but because of the recent "extraordinarily strained" relations, contact with G.W. has not been permitted. Gray testified that when he visited with G.W., she did not demonstrate any behaviors indicating that she was suffering from separation anxiety. Gray stated, "Regarding her getting sick, she's gotten sick one time in my presence. During my last visit I picked her up from dance and she was ill on the way home in the car and recovered within the hour and was playing again." Gray testified that he picked G.W. up at Lucy's residence "a times" and also from Shook's number of residence for visitation. Gray stated that it had been "less than a year" since he picked G.W. up at Lucy's residence. in Gray admitted that he decided not to look for employment in Texas although he believed that he could have found a job there. When asked why he chose not to live in Texas if his primary consideration was G.W., Gray responded, "I don't believe location is exclusive of visiting my daughter. Those two things don't have to contradict each other in any way." Gray explained that moving to Seattle would allow him more visitation time with G.W. because he made more money and he would never be asked
- 6 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) Gray claimed that he was unaware that G.W. resided with Shook and that his "family [in Victoria] didn't know." When asked, "How hard do you think it would have been had you looked to figure out where the child was living," Gray responded, "How hard would it have been had I looked? I looked as far as I could; that is, she clearly maintained two residences. That is, all of her toys were both at [Lucy's] house and she had a lot of toys at [Shook's] house. As recently as yesterday, for example, [G.W.] stated I live with [Shook]. Oh, I'm not supposed to say that." Yes, I have stepped up to the plate in that I have consistently been in her life. As soon as I had any living with her biological parent, I pressed for this, right? That's why we're here today, is because I have been trying to step up to the plate and seek more and more time with G.W. since the day she was born, while they have pushed very hard back against that.
indication she wasn't Gray claimed that immediately after G.W. was born, he initiated some action, which he did not explain, in order to assert his parental rights. Shook's attorney stated, "You haven't done anything to establish rights to possession and access to medical records and to school records, you haven't done any of those things until you filed this lawsuit." Gray replied, "That's not true in that, as stated, right after she was born we sought all those things which you just discussed and...." When Shook's Shook's trial counsel asked Gray if he agreed with Green's testimony that it was not in G.W.'s best "interest to be uprooted and moved to Seattle." Gray replied, "I don't sir, in that I believe that she's in a damaging and destructive environment currently and that currently her care is loving and nurturing but a little bit over controlling and possessive in a way that may lead to some of these issues." During re-cross examination, Shook's counsel asked, "Would that be in [G.W.'s] best interest to remove her that distance from the people that have taken care of her during the first five years of her life," Gray replied:
[329 S.W.3d 194] counsel asked Gray to produce the court orders establishing those rights, Gray said, "We could pull them up. There were court orders, there were attorneys involved the month after she was born involving just what you're discussing, sir." Lucy's trial counsel then asked the trial court to take judicial notice of the fact that the pending action was the only suit affecting the parent- child relationship that had been initiated and that it was not filed one month after G.W. was born. Gray then stated, "That's correct, it never reached—it never reached the court at that point, we were negotiating between the attorneys and it was, like I said, a standard parental—I forget the right now—but it acknowledgment of parent, that sort of thing that we went through at that time." Taken care of her, I don't really accept how you use the phrase, but I believe it would be in her best interest. They've cared for her and I greatly appreciate what they have done to provide the they temporary solution have. That as a more permanent solution I see her living with one of her parents, and that would be myself if the mother is not taking care of her, which has been the case. So, I believe that it would be in my daughter's best interest to reside with me in Seattle.
right term for Lucy testified that G.W. lives with Shook and has lived at the Shook residence for approximately one year. Lucy stated that she and Shook parental responsibilities because Lucy "needed help raising" G.W. According to Lucy, she was diagnosed with depression when she was in eighth grade, and since then, she has been taking
decided share the to When asked if Gray believed he had "stepped up to the plate and assumed the responsibility a parent should," Gray responded,
- 7 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) medication for that disease. After G.W. was born, Lucy moved in with Shook and lived there two or three years. Lucy stated that she believes that it is in G.W.'s best interest to continue living to that she with Shook and participate in raising G.W. days out of that time, the other three days he spent in Austin or Dallas with friends." Lucy believed infrequent visits have "damaged" his relationship with G.W.
that Gray's is available
The trial court appointed Shook managing conservator with the right to determine G.W.'s residence and appointed Gray and Lucy possessory conservators. The trial court ordered that neither possessory conservator live in the same residence with Lucy denied that she ever prevented Gray from visiting with G.W. and claimed that she "encouraged" him to visit regularly and more often. Lucy stated that it would be better for G.W. if Gray had more contact with her. Lucy also denied that she ignored Gray's telephone calls. Lucy explained that the "supervised" visits occurred when she was breast feeding G.W., which she did for "a little over a year." Therefore, it was "necessary" for her to be present during those visitations. Lucy testified that she did not want to prevent Gray from having visits with G.W. and that she believes it is "very important" for G.W. to visit Gray.
[329 S.W.3d 195] G.W. and Shook. The trial court entered findings of fact and conclusions of law, which stated in pertinent part:
4. The Court finds that at the time of filing of the Petition in Intervention, Intervenor [Shook] had actual care, control, and possession of the child made the subject of this suit for more than six months ending no more than 90 days preceding the date of filing of in Intervention. Lucy stated that G.W. was "around" two when Gray moved to New Jersey and that she was not aware of any requests from Gray for G.W. to be flown to New Jersey for a visit. Lucy testified that she has concerns about allowing G.W. to fly to Seattle because she suffers from separation anxiety and she would be scared due to her young age. Lucy agreed that she would work with G.W. to help her overcome her anxiety. However, Lucy did not believe that it would be in G.W.'s best interest for Gray to be appointed sole managing conservator and that it was in G.W.'s best interest to continue living with Shook.
the Petition 5. The Court finds that it is in the best interest of the child made the subject of this suit that [Shook] be appointed Sole Managing Conservator of the child made the subject of this suit. 6. The Court finds that it is in the best interest of the child made the subject of this suit that [Gray] be appointed possessory conservator of the child made the subject of this suit. On cross-examination, Lucy said that it was not true that Gray had placed hundreds of telephone calls to G.W. Rather, she testified that filed, Gray called before approximately twice a month to talk to G.W. Lucy stated that Gray visited G.W. two or three times per year, usually during a holiday like Christmas or Thanksgiving. When asked why Gray did not visit more often, Lucy replied, "I guess numerous reasons, being the expense, the travel expense. Other plans. For example, he had a four-or five-day trip down to Texas over New Year's Eve once and was only in Victoria two
the suit was
finds 7. The Court that appointment of [Gray] as joint managing conservator of the child made the subject of this suit would not be in the best interest of the child made the subject of this suit because the
- 8 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)
appointment would significantly the child's physical impair health emotional development. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990). Therefore, section 153.131 of the family code requires that the parent be appointed sole managing conservator or both parents be appointed joint managing conservators unless the nonparent proves by a preponderance of the credible evidence that "appointment of the parent or parents would
or Gray requested additional findings of fact "on how appointment of a parent or the parents as sole or joint managing conservator in the instant case would significantly impair the child's emotional development, including, what facts, if any, in the record, support said findings." The trial court did not make any additional findings of fact, and this appeal ensued.
physical health or [329 S.W.3d 196]
not be in the best interest of the child because the appointment would significantly impair the child's emotional development...." Tex. Fam.Code Ann. § 153.131 (Vernon 2008); In re De La Pena, 999 S.W.2d 521, 527 (Tex.App.-El Paso 1999, no pet.). The family code's presumption in favor of parental custody places a "heavy burden on a nonparent seeking custody." May v. May, 829 S.W.2d 373, (Tex.App.-Corpus Christi 1992, writ 376 denied). To rebut the presumption, "the evidence must support a logical inference that some specific, identifiable behavior or conduct of the parent will probably cause significant physical or emotional harm to the child." Id. at 377. Any "close call" must be resolved in favor of the parent over the nonparent. Chavez v. Chavez, 148 S.W.3d 449, 459 (Tex.App.-El Paso 2004, no pet.).
or health physical II. Standard of Review and Applicable Law
court reviews appellate the An determination of conservatorship under an abuse of discretion standard. Whitworth v. Whitworth, 222 S.W.3d 616, 622-23 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982)). "Under an abuse-of-discretion standard, legal and factual insufficiency are not independent grounds of error, but rather are relevant factors in assessing whether the trial court abused its discretion." Baltzer v. Medina, 240 S.W.3d 469, 475 (Tex.App.-Houston [14th Dist.] 2007, no pet.); see also Morris v. Morris, No. 13-05-00297-CV, 2007 WL 2128882, at *2- 3, 2007 Tex.App. LEXIS 5878, at *6-7 (Tex.App.-Corpus Christi July 26, 2007, no pet.) (mem. op.). The trial court abuses its discretion if its decision is arbitrary or unreasonable. Whitworth, 222 S.W.3d at 623. A trial court may also abuse its discretion if it fails to analyze or apply the law correctly. In the Interest of C.A.M.M., 243 S.W.3d 211, 215 (Tex.App.- Houston [14th Dist.] 2007, pet. denied) (citing Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992) (orig. proceeding)). The trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support the decision. Whitworth, 222 S.W.3d at 623.
III. Analysis Shook relies heavily on Green's testimony that G.W. had suffered from separation anxiety and that because she had not bonded with Gray, it would not be in her best interest to move to Seattle. If the evidentiary burden on a nonparent was any evidence of any harm to the child, we would be required to find that the trial court acted within its discretion in this case. However, as we discuss below, the law requires the evidence to rise above mere speculation of harm, and further requires the harm to be attributable to a specific, identifiable act or omission of the parent. The trial court abused its discretion, and therefore, we sustain Gray's sole issue, because: (1) Shook failed to offer any evidence of a specific, identifiable act or omission by Gray that would be likely to harm G.W; and (2) the "The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law."
- 9 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) the general harm caused by evidence of "uprooting" in this case is only speculative and therefore the parental presumption. children, but that holding was based on the fact that the father had been a drug user in the recent past, and the holding was only made after a careful and deliberate finding of a specific, identifiable act of the parent that would significantly impair the or child's emotional development. See id. at 377-79.
could not rebut A. Specific, Identifiable Act or Omission Gray contends that the trial court abused its discretion because the record does not legally— or even factually—demonstrate specific acts or omissions by Gray that would significantly impair the physical health or emotional development of G.W. We agree.
physical health In Lewelling, the Texas Supreme Court emphasized the portion of the statute under which a nonparent may obtain custody if "the court finds that appointment of the parent or parents would not be in the best interest of the child appointment would significantly impair the child's physical health or emotional development. " Lewelling, 796 S.W.2d at 166 (emphasis in original). After emphasizing this specific language, the court instructed that: In order for a nonparent to overcome the presumption that it is in the child's best interest to be in the custody of a parent, there must be evidence of "specific, identifiable" conduct by the parent that is likely to cause harm to the child's emotional development. 2 In
because the physical health or [329 S.W.3d 197] May v. May, this Court wrote that the family code
[statutory] a language The requiring that appointment of the parent would significantly impair the child's
showing requires evidence of specific actions or omissions of the that demonstrate an parent award of custody to the parent would significant physical or emotional harm to the child.... In other words, the nonparent must usually present evidence affirmatively showing conduct of the parent which will have a detrimental effect upon the child, such as physical abuse, neglect, severe abandonment, drug or alcoholic abuse or very immoral behavior on the part of the parent. 829 S.W.2d 376-77 (Tex.App.-Corpus Christi 1992, writ denied) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.1990)). In May, we ultimately held that the father could not retain custody of the
[329 S.W.3d 198] in result
physical emotional or development creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent. It is no longer offer the nonparent evidence would be a better custodian of the child.... [T]he nonparent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally. This statute thus requires the nonparent to offer evidence of specific actions or omissions of the parent that demonstrate an
adequate to that 373,
- 10 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)
award of custody to the parent would result in physical or emotional harm to the child. above a mere speculation of harm. The record indicates that vomiting had occurred on only one or two occasions out of the dozens of times G.W. has met with her father, and on closer review of the record, Green testified that the vomiting was "possibly" caused by anxiety. Moreover, there is no evidence that all of the other alleged dangers to G.W.'s emotional development were more than a mere possibility. For example, on direct examination, when asked, "Can you give the Court some example[s] of what some of those additional problems might sometimes be depression develops, sometimes they're at risk further for drug use," and responded, " oftentimes we long-term problems." see (Emphasis added). These are the exact types of speculative harms that we prohibited from consideration in May. See May, 829 S.W.2d at 377. Without consideration of this speculative harm, there is no evidence whatsoever to rebut the parental presumption. Therefore, again, we hold that the trial court abused its discretion in appointing Shook, Id. (internal citations omitted) (emphasis added). Absent evidence of some specific act or omission by Gray that would cause G.W. harm, the parental presumption can not be overcome. We find no such evidence in the record. The evidence in this case shows that the only possible harm the "uprooting" itself—not any specific, identifiable act or omission, conduct or behavior of Gray. Therefore, it was an abuse of discretion for the trial court to name Shook, a nonparent, sole managing conservator of G.W.
to the child is
[?]," Green responded, " B. Speculative Harm Furthermore, even if we look at general harm, not attributable to Gray's specific acts or omissions, Shook failed to present any evidence that could overcome the parental presumption because the evidence presented raises only speculative harm.
[329 S.W.3d 199] In May, this Court wrote that "[the] harm to the child ... may not be based on evidence which raises a mere surmise or speculation of possible harm." May, 829 S.W.2d at 377 (citing Kindred v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex.1983); Briones v. Levine's Dept. Store, Inc., 446 S.W.2d 7, 10 (Tex.1969)).
as G.W.'s sole managing a nonparent, conservator. IV. Conclusion Because we hold that the trial court abused its discretion by appointing Shook to be G.W.'s sole managing conservator, we sustain Gray's sole issue. Having failed to meet her burden, Shook may not maintain any legal custodial rights over G.W. "In most circumstances, a judgment is reversed and rendered when a legal sufficiency challenge is sustained." Chavez, 148 S.W.3d at 461. However, we are permitted to remand a case such as this "when the interest of justice so requires." Id. (citing Tex.R.App. P. 43.3). In this case, the trial court held in Shook's favor, making it unnecessary for that court to determine G.W.'s best interest as it related to the custodial or visitation rights that should exist between Gray and Lucy only. Because of this, and because we have overturned the trial court's ruling designating Shook as sole managing Shook essentially relies on one theory of harm in order to justify the trial court's judgment the parental that Shook had overcome presumption. That theory can be summarized as follows: (1) Green testified that G.W. suffers from "some" separation anxiety; (2) this anxiety has caused "recurring vomiting" in the past, could effect her peer relationships in the future, and may lead to other long-term problems; and (3) these harms can be prevented if G.W. remains with Shook because G.W. feels safe with Shook and G.W. has not bonded with Gray. Evidence of sporadic, past vomiting and the effects on peer possibility of negative relationships is insufficient evidence to rise
- 11 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) conservator, we find it to be in the interest of justice not to simply render judgment in Gray's favor. Further, more than a year has passed since the custodial hearing; circumstances may have changed during this time such that it would not be in G.W.'s best interest to appoint Gray as her sole managing conservator, and we have no ability to determine the present circumstances of any of the parties, nor do we have the luxury of sitting as a fact-finder. For the forgoing reasons, we remand this case to the trial court for custodial hearings to determine the rights as between Gray and Lucy only. testified anxiety. Green that experiences consistency is also an important factor in bonding with a child and that when there are infrequent visits or large gaps between the visits, bonding will not occur. Green opined that a child is unable to bond with a person who only visits the child three or four times per year. The evidence showed, although contradicted by Gray, that he had only visited G.W. three or four times per year since he moved away from Texas. 4 Furthermore, according to Green, G.W. viewed Gray as a stranger, and Gray has not bonded with G.W. because he has not spent enough time with her. Green stated that in order to bond with G.W., more frequent contact was necessary. Dissenting Opinion by Justice LINDA REYNA YAÑEZ. Dissenting Opinion by Justice YAÑEZ.
According to Green, after visiting Gray, G.W. has vomited due to her anxiety. Green testified that G.W. would "freak out" if she was removed from Shook's home and that she would vomit, scream, and cry. Due to G.W.'s separation anxiety, Green stated that the added stress of removing her from Shook's home could cause numerous problems for G.W. I respectfully dissent to the majority's its conclusion discretion in this case. A trial court does not abuse its discretion when there is some evidence of a substantive and probative character to support its decision. 1 In some cases, the parental presumption can be rebutted by other evidence establishing the statutorily required negative effect on the child even when there is no particular evidence blameworthy act of the parent. 2 "Because safety, security, and stability are critical to child development, the danger of uprooting a child may in some instances rise to a level that significantly the child's emotional development." 3
the that trial court abused
Shook testified that G.W. has lived in her home since she was born, that she has been "raising" G.W. for approximately a year-and-a- half, and that G.W. spends more time with Shook than with Lucy. According to Shook, it would significantly impair G.W.'s physical if Gray was appointed managing health conservator because G.W. would be removed from the "only home she's ever known." Shook testified that G.W. had never been away from Shook, Shook's husband, or Lucy for more than "a night or two." Shook stated that G.W. has bonded with her and it would be "devastating" to G.W. if she were removed from Shook's home. Shook testified that G.W. would suffer harmful effects if removed from her home because she would not have any family support in Seattle. Shook stated that appointing Gray managing conservator and removing G.W. from Shook's home would have harmful effects. establishing any impairs Here, Green testified that G.W. suffers from separation anxiety, a condition she defined as a fear of being separated from either the parent or person of significance. Green testified that G.W. considers Shook her "primary parent" and feels "safe" in Shook's home. The evidence showed that G.W. has lived with Shook since she was born and has never known another home.
that Green stated that stability and consistency are very important to a child who
In this case, there was evidence presented that the danger of uprooting G.W. from Shook's impair G.W.'s significantly home would [329 S.W.3d 200]
- 12 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011) physical health and emotional development. 5 Therefore, the trial court could have reasonably concluded from the evidence that appointing Gray managing conservator would have the statutorily required negative effect on G.W. 6 Because there is some evidence of a substantive and probative character to support the trial court's decision, I believe that the trial court did not abuse its discretion by concluding that Gray's appointment as managing conservator would significantly impair G.W.'s physical health or emotional the Texarkana Court relied on proposition that a nonparent may be awarded custody of a child without a blameworthy act of the parent; the opinion seems to merely state this proposition in dicta. See id.
Second, in In re Rodriguez, the facts are again distinguishable in a meaningful way from the present case. 940 S.W.2d 265, 266-70 (Tex.App.-San Antonio 1997, writ denied). In that case, the birth the child up for mother gave adoption all parental rights, and the father had met the child only twice in the 267-69. at Id. child's Moreover, there was evidence presented that all interactions and visitations were and facilitated by the child's paternal grandmother, not by the father himself indicating a lack of concern for the child, especially in the the child's evidence does not support in this case. Id. at 269-70. Additionally, the majority for the San Antonio Court wrote that it didn't believe that "[section] 153.131, Texas Family Code contemplates that the environment which 'significantly impairs the child's physical health or emotional development' must be the product of some act or omission on the part of the natural parent," which we consider to be a blatant misstatement of the law. We concur with Justice Carr's dissent insofar as this case. In to response to the majority, Justice Carr wrote: [329 S.W.3d 201]
and relinquished development. 7 Therefore, I would affirm the trial court's judgment.
life. 1 There is no evidence that Green had obtained a medical degree, and she did not claim to be a psychologist or psychiatrist.
initiated 2 The dissent cites three cases from our sister courts to support the proposition that a nonparent may be awarded custody even without a blameworthy is act of distinguishable from the present case, and moreover, the precedent in those cases is not binding on this Court.
early life, which the parent. Each of those cases
in In re G.R.W., the First, Texarkana Court was dealing with circumstances much different from those in this case. 191 S.W.3d 896, (Tex.App.-Texarkana 898-900 2006, no pet.). In that case, the father of the child had been indicted for sexual assault of the sexual mother encounter that led to the birth of the child, and the father was convicted lesser offense of child of endangerment. 898. Moreover, the court pointed to the fact that the father was a smoker and the child had severe respiratory problems. Id. at 900-01. specific, facts establish These identifiable acts of the parent that the would be physical emotional development of the child. Further, that the there for the very
it applies the
Id. at
[W]hile I agree with the majority that our record reflects "that there is no evidence that any act or omission, behavior, or conduct by [the father] will impair [the child]," I respectfully dissent because, unlike the majority, I do not agree that this case is a case of first distinguishable impression that
likely health to or impair
nor is no indication
- 13 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)
from Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990). I would hold on that Lewelling is controlling; and, that at the present time [and] under the current state of Texas laws, the Lewelling standard that non-parents seeking custody here cannot benefit from their bonding or attachment with the child by "offering it as some significant impairment to [the child]." Id. at 168. Accordingly, because [the impact nonparent's] argument was rejected by our Supreme Court in Lewelling, we are required to reject the same argument here. parent, the parental presumption can be rebutted by other evidence establishing the statutorily required negative effect on the child."); In re Rodriguez, 940 S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, writ denied) (concluding that nonparent had rebutted parental presumption solely by producing evidence that the effect on the child of being removed from the only home she had ever known would be "devastating").
this legal issue
3 Chavez v. Chavez, 148 S.W.3d 449, 458-59 (Tex.App.-El Paso 2004, no pet.) (citing De La Pena, 999 S.W.2d at 529). evidence of significant
4 I note that Green testified that even visits with a child once every two months, as Gray claimed he did, is inadequate for bonding to occur. 5 See In re G.R.W., 191 S.W.3d at 900; Chavez, 148 S.W.3d at 458-59; In re Rodriguez, 940 S.W.2d at 273-75. Id. at 275 (Carr, J., dissenting). Third, in Chavez v. Chavez, the to mother who was reacquire custody was shown to be a drug user and there was evidence that she was physically abusive. 148 S.W.3d 449, 453 (Tex.App.-El Paso 2004, no pet.). The El Paso Court overturned the trial court's ruling against the mother on other grounds and never actually reached the issue of whether these specific, identifiable acts or some other reason would prevent the mother from maintaining custody of the children. Id. at 459. If the dissent agrees with in the Chavez, it should at least recognize the present case as a "close call," and settle any doubt in favor of the the El Paso Court parent, as required. See id. 6 See Tex. Fam.Code Ann. § 153.131; In re G.R.W., 191 S.W.3d at 900; Chavez, 148 S.W.3d at 458-59; De La Pena, 999 S.W.2d at 529 ("We also agree that because safety, security, and stability are critical to child development, the danger of uprooting a child may in some instances rise to a level that significantly emotional development."); In re Rodriguez, 940 S.W.2d at 270- 75; see also In the Interest of R.T.K., 324 S.W.3d 896, 905 (Tex.App.-Houston [14th Dist.] 2010, no pet.) record (concluding sufficiently supported the trial court's conclusion that the nonparent rebutted the presumption found in section 153.131(a) because based on the evidence presented, the trial court could have reasonably concluded that removal of the child from "the only home he has known" would significantly impair his emotional development).
seeking
the child's impairs (mem. op.) that the reasoning
7 See Whitworth, 222 S.W.3d at 623; see also In the Interest of C.A.M.M., 243 S.W.3d at 214-15 ("But the fact that a trial court may decide a matter within its discretionary authority in a different manner from an appellate court in a similar circumstance does not demonstrate an abuse of discretion.") (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). 1 Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on reh'g). 2 In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.- Texarkana 2006, no pet.) ("In fact, even without evidence establishing any blameworthiness of the
- 14 - Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)
381 S.W.3d 540 56 Tex. Sup. Ct. J. 10 Ann Wood SHOOK, Petitioner, v. David GRAY, Respondent. No. 11–0155. Supreme Court of Texas. Oct. 5, 2012. Summaries:
Source: Justia
G.W., David Gray and Lucy Wood's nine- year-old daughter, has lived with her maternal grandmother, Ann Shook, for her entire life. Although G.W.'s parents have been in and out of her life to varying degrees since she was born, no one disputes that at the time of the custody hearing the grandmother's home was the only home G.W. had ever known. We are asked to decide whether the court of appeals erred by remanding this case to the trial court for hearings to determine the custody and visitation rights as between Gray and Wood only. We grant Shook's motion for rehearing of her petition for review and, pursuant to Rule 59.1 of the Rules of Appellate Procedure, hold that, by barring the trial court from considering Shook, the court of appeals unduly restricted the trial court's ability to protect the child's best interest. G.W., David Gray and Lucy Wood's nine-year- old daughter, had lived with her maternal grandmother, Ann Shook, for her entire life. The trial court appointed Shook as G.W.'s sole managing conservator and named Gray and Wood as G.W.'s possessory conservators. The court of appeals reversed, holding that the trial court abused its discretion in naming Shook, a nonparent, as G.W.'s sole managing conservator because Shook failed to present any evidence that could overcome the presumption that a parent as managing conservator. The court then remanded the case to the trial court to determine the custody and visitation rights as between Gray and Wood only. The Supreme Court affirmed the court of appeals' the case but reversed to the extent the judgment limited the trial court's consideration of the role Shook should play life, whether as conservator or a person with defined access rights. should be named judgment remanding
When G.W. was three-and-a-half years old, Gray filed an original suit affecting the parent- child relationship requesting that he and Wood be appointed joint managing conservators and that Wood be given the primary right to establish G.W.'s residence. 1 Shook intervened on the basis that she “has had actual care, control, and possession of [G.W.] for more than 6 months ending no more than 90 days preceding in G.W.'s [381 S.W.3d 541]
[381 S.W.3d 542] Cynthia T. Sheppard, Attorney at Law, Cuero, Jack W. Marr, Marr, Meier & Bradicich LLP, Victoria, for Petitioner.
the date of filing of [the] petition.” See Tex. Fam.Code § 102.003(a)(9). She requested that she and Wood be appointed joint managing conservators and that she be named the joint managing conservator with the exclusive right to designate G.W.'s primary residence. She also that Gray be appointed possessory asked Audrey Mullert Vicknair, Law Office of Mullert Vicknair, William A. Dudley, Law Office of William A. Dudley, P.C., Corpus Christi, David S. Kidder, Dallas, for Respondent.
- 1 - Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012) conservator. Subsequently, Gray amended his petition to request that the trial court appoint him the joint managing conservator with exclusive right to establish G.W.'s residence. Gray did not specify who should be named the other joint managing conservator. the custodial hearing; circumstances may have changed during this time such that it would not be in G.W.'s best interest to appoint Gray as her sole managing conservator, and we have no ability to determine the present circumstances of any of the parties, nor do we have the luxury of sitting as a fact-finder. For the forgoing reasons, we remand this case to the trial court for custodial hearings to determine the rights as between Gray and [Wood] only. Shortly after G.W. was born, G.W. and her mother moved into Shook's home in Victoria, Texas. At the time of the custody hearing, when G.W. was almost five years old, G.W. still lived with Shook. Wood had moved out of Shook's home to live on her own two years earlier, and Gray had in Houston, New Jersey, Colorado, and Seattle between G.W.'s birth and the time of the custody hearing. The trial court appointed Shook as G.W.'s sole managing conservator and named Gray and Wood as G.W.'s possessory conservators.
329 S.W.3d at 199. Shook contends that the court of appeals should not have precluded the trial court from considering her role in G.W.'s life on remand. We agree. lived
By foreclosing trial court from considering Shook on remand, the trial court may be unable to protect G.W.'s best interest. Tex. Fam.Code § 153.002 (“The best interest of the child the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.”). As the court of appeals pointed out, it had “no ability to determine the present circumstances of any of the parties, nor d[id it] have the luxury of sitting as a fact- finder.” the problem with remanding for custodial hearings between Gray and the The court of appeals reversed, holding that the trial court abused its discretion in naming Shook, a nonparent, as G.W.'s sole managing conservator because Shook failed to present any evidence that could overcome the presumption that a parent should be named as managing conservator. 329 S.W.3d at 198–99;Tex. Fam.Code § 153.131 (stating that a parent shall be appointed as a sole managing conservator or both parents shall be appointed as joint managing conservators “unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the or child's emotional physical development”). Additionally, the court of appeals remanded the case for the trial court to reconsider the conservatorship and access rights between Gray and Wood only and explained:
shall always be Id. That statement illustrates [381 S.W.3d 543] health
Wood only. The trial court must be able to consider the changed circumstances. G.W. is now nine years old and over four years have passed since the trial court issued its order. Even assuming Shook previously failed to present evidence capable of overcoming the parental presumption, it does not follow that she will necessarily be unable to overcome the parental presumption under the present circumstances. [T]he trial court held in Shook's favor, making to determine G.W.'s best interest as it related to the custodial or visitation rights that should exist between Gray and [Wood] only. Because of this, and because we have overturned the trial court's ruling designating Shook as sole managing conservator, we find it to be in the interest of justice not to simply render judgment in Gray's favor. Further, more than a year has passed since
for that court it unnecessary
Moreover, Shook pled and established general standing to file a suit for conservatorship and access, as someone who has had care, control, and possession of a child for the designated time. Tex. Fam.Code § 102.003
- 2 - Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012) (authorizing suit by “a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition”). Shook's inability to overcome the parental presumption does not deprive her of standing to be considered for conservatorship or access. If Shook fails to overcome the presumption that a parent should be named managing conservator on remand, the trial court may still name Shook as a possessory conservator or grant her access if that would be in G.W.'s best interest. consideration of the role Shook should play in G.W.'s life, whether as conservator or a person with defined access rights. Tex.R.App. P. 59.1.
-------- Notes: 1. In his petition, Gray stated, “The best interest of [G.W.] will be served by the appointment of Lucy Wood as joint managing conservator with the exclusive right to designate the primary residence of the child, and [Gray] so requests.” Gray that further “appropriate orders be made for access to the child and the allocation of the rights and duties of the conservators.” Although Gray does not explicitly state the type of conservatorship he sought, we infer that he wished to be named a joint managing conservator.
requested Thus, we conclude that the court of appeals erred from considering Shook for conservatorship of or access to G.W. Accordingly, without hearing oral argument, we affirm the court of appeals' judgment remanding the case, but reverse to the extent the judgment limits the trial court's
the trial court in preventing
- 3 -