Case Information

*0 FILED IN 5th COURT OF APPEALS DALLAS, TEXAS 2/18/2015 11:49:04 AM LISA MATZ Clerk *1 ACCEPTED 05-15-00114-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/18/2015 11:49:04 AM LISA MATZ CLERK

NO. 05-15-00114-CV

___________________________________________________

In the Court of Appeals for the Fifth District of Texas at Dallas

_____________________________________________ IN THE INTEREST OF H.W.G., A CHILD MICHAEL GIBB,

Appellant, v.

EMILY STEPHENS

Appellee. ___________________________________________ On Appeal from the

366th Judicial District Court of Collin County, Texas Cause No. 366-55837-2009 ___________________________________________________

APPELLANT’S REPLY BRIEF IN SUPPORT OF MOTION TO SUSPEND TRIAL COURT’S ORDER PENDING APPEAL ___________________________________________________

TO THE FIFTH DISTRICT COURT OF APPEALS:

Mother really has no substantive response to the motion to suspend order.

First, Mother does not even attempt to argue that suspending the order would harm or be unfair either to her or the child. The closest she can

come is a passing, unexplained reference to “an agreement contrary

thereto.” But she does not explain what this means. And, as the transcript

excerpts attached to Father’s motion make clear (and Mother does not

dispute), returning her to the previous access is entirely consistent with that

agreement.

Second, Mother does not attempt to dispute her recent history of drug abuse, her agreement to the strict terms tying unsupervised access to a

period of clean drug tests, her failure to meet those strict terms, or the

possible resulting danger to the child.

All Mother really says is (1) the trial court found Step 4 access to be in the child’s best interest, and (2) the trial court is scheduled to take this

matter under advisement in March. Neither contention is accurate, and

neither is relevant.

First, the trial court did not, either in its order or in its on-the-record discussion of that order, state that Step 4 access was in the child’s best

interest. All the trial court mentioned on the record was “continuous serious

conflict” between the parents—a matter having nothing to do with drug

testing and possession under the prior judgment. The order says only that

Mother has satisfied the prerequisites for Step 4 access—something so

obviously untrue that not even Mother made that claim in the trial court (or

in her response to this motion).

Second, Mother’s pending request for temporary orders on appeal concerns matters entirely unrelated to suspension of the order on appeal

(which only makes sense—why in the world would Mother, as Appellee,

seek temporary orders suspending the order on appeal?). The trial court’s

resolution of the request for temporary orders has nothing to do with the

relief sought by this motion. ^[1]

Finally, the trial court’s statements during the hearing made clear the futility of seeking suspension of the order. Rather than waste his money and

the trial court’s time, Father instead sought relief from this Court—as the

Family Code explicitly permits.

The Family Code authorizes relief “on a proper showing.” T EX . F AM . C ODE A NN . § 109.002(b). Mother claims Father did not make a proper

showing. Again, however, she never provides any basis for this argument.

Father made a showing that Mother’s recent drug use poses a risk to the

child, and that suspending the order will not negatively affect Mother or the

child, or deny them time together.

*4 In light of Mother’s failure to identify any real reason not to grant relief, Father asks that this Court err on the side of caution and protect the

child by suspending the order.

Respectfully submitted, /s/Charles “Chad” Baruch Texas Bar Number 01864300 T HE L AW O FFICE OF C HAD B ARUCH 3201 Main Street

Rowlett, Texas 75088 Telephone: (972) 412-7192 Facsimile: (972) 412-4028 Email: baruchesq@aol.com Counsel for Relator Certificate of Compliance This brief was prepared using Microsoft Word for Mac. Relying on the word count function in that software, I certify that this motion contains 501

words (excluding the case caption, signature block, and certificates).

/s/Charles “Chad” Baruch *5 Certificate of Service

The undersigned counsel of record certifies that a true copy of this instrument was served in accordance with Rule 9.5 of the Texas Rules of

Appellate Procedure on each party or that party’s lead counsel on February

18, 2015, as follows:

Charles C. Phillips

Philips & Epperson, LP

2301 Virginia Parkway

McKinney, Texas 75071

By email to:

rcollins@philipsandepperson.com

/s/Charles “Chad” Baruch

[1] Mother attached a copy of the motion to her response. The motion concerns complaints Mother has about access under the order, and has nothing to do with suspending it pending appeal.