tag:blogger.com,1999:blog-27860603461483318282024-03-13T11:18:52.433-07:00GRANDPARENT RIGHTS TXGRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.comBlogger37125tag:blogger.com,1999:blog-2786060346148331828.post-65241617513287994442012-04-17T22:46:00.002-07:002012-04-17T22:47:15.677-07:00Jury’s award of custody to nonparents reversed on appeal<br />
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<b><span style="font-size: 14pt;">MEMORANDUM OPINION<o:p></o:p></span></b></div>
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Appellant, [Child’s Mother], challenges the trial court’s August 4,
2010 order, entered after a jury trial, appointing appellees, Bryan James Danet
and William Todd Kranz, as the sole managing conservators of [Mother]’s minor
child, J.A.B.[1] In her first two
issues, [Mother] contends that the evidence is legally and factually
insufficient to support the jury’s finding that her appointment as sole
managing conservator would significantly impair the child’s physical health or
emotional development and the trial court erred in not allowing her to present
testimony from out-of-state witnesses via telephone. In her third issue, [Mother] requests that
this Court enforce the parties’ partial-settlement agreement, signed after the
trial court’s order, depending on the resolution of this appeal.<o:p></o:p></div>
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We reverse and render judgment.<o:p></o:p></div>
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<b>Background<o:p></o:p></b></div>
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On March 31, 2006, Child Protective Services (“CPS”) removed the child
from the custody of [Mother] and placed him in the foster care of Danet and
Kranz. Although CPS chose not to seek
termination of [Mother]’s parental rights, Danet and Kranz, on October 2, 2007,
filed their petition in this suit affecting the parent-child relationship
(“SAPCR”), seeking appointment as the child’s joint managing conservators. In response, [Mother] filed an amended answer
and original counter-petition, seeking appointment as the child’s sole managing
conservator. In 2008, the parties
entered an agreement[2] naming Kranz and Danet as temporary managing
conservators of the child and [Mother] as the temporary possessory conservator
of the child during the pendency of court proceedings. <o:p></o:p></div>
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At trial, Kranz testified that he and Danet had taken care of the child
for four years and four months. After
CPS decided not to seek termination of [Mother]’s parental rights, he and
Danet, in October 2007, decided to “get involved in the case” and file their
SAPCR petition to be appointed as joint managing conservators. When they first received custody in April
2006, the child was seven months old and suffered from a “very severe diaper
rash.” Kranz thought that the child had
been “starving,” as if “he didn’t know when his next meal was going to
be.” After Kranz and Danet received
custody, [Mother] “pretty much abandoned” the child by moving to Wisconsin and
not visiting him for six months. She
came down to visit the child “on average” only “two [weekends] a year” even
though her visitation schedule allowed monthly visits. In addition, [Mother] would occasionally
bring with her “different men” whom the child did not know, and she never
brought “the same person twice.”<o:p></o:p></div>
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Kranz explained that [Mother] had initially thought that the child’s
father was Joseph Alaniz, who was her boyfriend at the time she lost custody of
the child. However, a paternity test
revealed the father to be George Hogeland, whom [Mother] lived with for five
months before she moved to Houston.
About four months after losing custody of the child, [Mother] was
arrested for “disturbance of the peace” after fighting with Alaniz in a Family
Dollar store parking lot. Shortly
thereafter, [Mother], pregnant with her second child, who was Alaniz’s son,
moved to Wisconsin. After she had given
birth to Alaniz’s son, Alaniz “beat the crap out of her in the hospital.” At the time of trial, Alaniz was incarcerated
and scheduled to be released in October 2011.<o:p></o:p></div>
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Kranz noted that in late 2006, [Mother] told him that if she were to
take a drug test, “it would turn out dirty.”
[Mother] was then ordered by CPS to take a drug test within 24 hours,
but she did not comply. She had also
informed Kranz that Alaniz had a drug problem.
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Kranz further testified that in March 2008, [Mother] came to Houston
for a weekend visit with the child.
After visiting on a Saturday, [Mother] called on Sunday morning,
explaining that she was not feeling well and would meet him and the child at
the Houston Children’s Museum at noon, an hour later than previously
scheduled. She did not arrive at the
museum until 2:20 p.m., and she “very sneakily walk[ed] past the admission
where you pay.” <o:p></o:p></div>
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Kranz noted that in 2008, [Mother] brought her younger son and a man,
“Michael,” on her visit to the child.
Afterwards, [Mother] failed to call the child for three weeks because
they had “decided to go to New Orleans,” where Michael let “some girl . . .
borrow their truck.” [Mother] told Kranz
that “the truck [had] disappeared, so [[Mother], her younger son, and Michael]
had to take [a] bus back to Wisconsin,” leaving [Mother] without a
telephone. In watching [Mother] interact
with her other son, Kranz noted that “there doesn’t appear to be respect for
her,” and the child “screams at her” and “slaps” people. <o:p></o:p></div>
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Danet testified that during [Mother]’s visits, the child would “get[]
very scared and [cry] at night,” which he described as “very typical after
pretty much every visit that he has when [[Mother]] comes into town.” Although Kranz and Danet encouraged [Mother]
to call the child and scheduled regular telephone calls, sometimes they “would
come home for the phone call and then she wouldn’t call at all.” In the six months prior to trial, the child
would complain that he did not want to talk with [Mother]. However, Danet explained that if he and Kranz
were to be appointed managing conservators, they would still encourage the
child to remain in contact with [Mother].<o:p></o:p></div>
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Linda McDonald, a co-worker and family friend of Kranz and Danet,
testified that in August 2008, she supervised one of [Mother]’s visits. Once, when [Mother] “wanted to make a special
celebration” for the child’s birthday, they visited her at a local hotel where [Mother]
was staying. [Mother] had brought her
younger son and a “friend that was introduced as Dennis,” who had “very little
interaction” with the child. The amount
of time that [Mother] spent with the child was “very limited.” <o:p></o:p></div>
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Rebecca Weiser, a co-worker and friend of Kranz, testified that in
August 2009, she supervised a visit at the hotel in which [Mother] was
staying. She noted that while the child
was in the hotel pool, he “went under three times,” and Weiser had to “pull[]
him up out of the water” each time. This
caused her to be “concern[ed] for [the child’s] safety.” On cross-examination, Weiser admitted that
she did not move to terminate the visitation or contact CPS after the incident
and that Kranz was supervising the child as well. <o:p></o:p></div>
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[Mother] testified that when she, with her mother, moved to Houston in
December 2004, she was unaware that she was already pregnant with the
child. Shortly after arriving in
Houston, she met Alaniz and, despite his abusive tendencies, she later moved
into a house with him in mid-2005. She
noted that Alaniz would hide her driver’s license, delete her telephone numbers,
and attempt to control her. In December
2005, police officers were dispatched to their home to investigate alleged
domestic violence, and, by March 2006, [Mother] was “just waiting for an
opportunity to get out” and move away from Alaniz. She explained that she should have left the
relationship sooner, but she was “really screwed up” at the time and “dismissed
a lot of [Alaniz’s] behavior” because she “thought it was important to have a
family unit.” <o:p></o:p></div>
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On the morning of March 31, 2006, [Mother] planned to escape from
Alaniz’s abuse and take her child with her.
The child had been diagnosed with “thrush,” a yeast infection, which, [Mother]
explained, accounted for his diaper rash.
To treat the thrush, she packed two antibiotics prescribed by the
child’s pediatrician. Because Alaniz had
hidden her driver’s license, [Mother] had to “go through half the house” to
find it and left the house “messy.” She
then took the child with her to a bus stop to take a bus to her mother’s house
in Wisconsin while Alaniz was away.
However, Alaniz found [Mother] at a bus stop, confronted her, and
accused her of being a “drug user.” He
then “[took] off on a bicycle with” the child, [Mother] called for emergency
assistance, and a police officer drove her back to the house in a patrol
car. Alaniz and the child were already
at the house, and the police officer, after questioning [Mother] and Alaniz,
took the child away in a patrol car. [Mother]
explained that because the officer had taken the child away, she did not have
time to feed him or apply his thrush medication. [Mother] was quite upset and spent the
weekend in a hotel room. She then
attended a court hearing the following Monday, and the court ordered her to
submit to a narcotics test, which came back positive for cocaine. She submitted an affidavit in which she named
Alaniz as the child’s father, which she believed to be true at the time. The child was not returned to [Mother] at the
hearing. <o:p></o:p></div>
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After the hearing, [Mother] moved back to Wisconsin to join her mother
and notified CPS that she had moved. In
June 2006, CPS informed her that it would seek “unrelated adoption” for the
child. [Mother] then returned to Houston
for a second hearing, and CPS submitted to her a Family Service Plan
(“FSP”). [Mother] understood that she
could regain custody of the child if she “not just completed [the FSP] but did
. . . very well.” Later, in the summer
of 2006, [Mother] stayed in Houston with Alaniz. She attended parenting courses, underwent a
psychological evaluation, and stayed two nights at an “in-patient drug facility”
pursuant to the FPS. <o:p></o:p></div>
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In September of 2006, [Mother] returned to Wisconsin, and Alaniz
followed her. After the birth of her
second child, Alaniz “beat [her] up” in the hospital room and was
arrested. [Mother] later bought Alaniz a
bus ticket to return to Houston, while she remained in Wisconsin. There, she followed the FSP by taking
parenting and relationship courses, attending drug and domestic violence
counseling sessions, and undergoing follow-up psychological evaluations. At the time, she was working as a cashier at
a dollar store and had a second job “doing clerical work.” She was living in “Section 8 housing” with
her mother and second child and receiving food stamps. <o:p></o:p></div>
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[Mother] admitted that she had previously been arrested in
Massachusetts on a charge relating to heroin, and, in 1999, she was convicted
in Wisconsin for possession of marijuana and battery. She also admitted that, in 2006, she used
cocaine while pregnant with her younger son, causing her to fail the
court-ordered narcotics test. [Mother]
further admitted that in July 2007, she was scheduled to fly to Houston for a
visitation, but the airline would not allow her on the plane “due to [her]
intoxication,” so she boarded an early flight the next morning. <o:p></o:p></div>
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[Mother] explained that if she was awarded custody of the child, she
would take him back to Wisconsin and continue to live with her mother. She noted that her family could not come to
Houston to visit the child because her mother had health problems and Kranz and
Danet were not cooperative with them.
Specifically, [Mother] asserted that they were “alienating” and
“isolating” her from the child. Kranz
and Danet would not disclose the child’s medical records to her, moved him to
different schools without informing her, and “took him out of school” when [Mother]
planned to visit him in class. She
further explained that the financial burden of traveling to Houston and the
time that it took to raise her second son made it difficult for her to make
regular trips to Houston. <o:p></o:p></div>
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<b>Sufficiency of the Evidence<o:p></o:p></b></div>
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In her first issue, [Mother] argues that the evidence is legally and
factually insufficient to support the jury’s finding that her appointment as
sole managing conservator would significantly impair the child’s physical
health or emotional development. She
asserts that most of the evidence against her relates only to her “past conduct
. . . which occurred approximately four or more years prior to trial . . . [and] does not implicate [her]
present parental fitness.” [Mother]
further asserts that the evidence is “legally insufficient to overcome the
parental presumption as a matter of law” and consists of “minor, insubstantial
conduct” that only establishes that she is an “imperfect person.”<o:p></o:p></div>
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Danet and Kranz argue that the evidence is legally and factually
sufficient to support the jury’s finding that they should be the child’s sole
managing conservators because removing the child from their home at the time of
trial “would significantly impair his emotional development.” They also assert that<o:p></o:p></div>
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[T]he jury heard evidence that [[Mother]’s] bad parenting would
significantly impair [the child’s] physical health or emotional
development. Less than a year before
trial, [the child] nearly drowned in a swimming pool while [[Mother]] was
supposed to be watching him. And [[Mother]]
repeatedly made extraordinarily bad decisions related to her visits with [the
child], including being so drunk at the airport that she was not allowed to
fly. The evidence, therefore, supports
the jury’s finding that awarding [[Mother]] sole managing conservatorship would
significantly impair [the child’s] physical health or emotional development.<o:p></o:p></div>
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We will sustain a
legal-sufficiency or “no-evidence” challenge if the record shows one of the
following: (1) a complete absence of evidence of a vital fact, (2) rules of law
or evidence bar the court 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 scintilla, or (4) the evidence conclusively establishes the opposite of
the vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
In conducting a legal-sufficiency review, a court must consider evidence
in the light most favorable to the verdict and indulge every reasonable
inference that would support it. Id. at
822. The term “inference” means, <o:p></o:p></div>
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In the law of evidence, a truth or proposition drawn from another which
is supposed or admitted to be true. A process of reasoning by which a fact or
proposition sought to be established is deduced as a logical consequence from
other facts, or a state of facts, already proved. . . .<o:p></o:p></div>
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Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex.
App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.) (citing Black’s Law
Dictionary 700 (5th ed. 1979)). For a
jury to infer a fact, “it must be able to deduce that fact as a logical
consequence from other proven facts.”
Id. <o:p></o:p></div>
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If there is more than a scintilla of evidence to support the challenged
finding, we must uphold it. Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41,
48 (Tex. 1998). “‘[W]hen the evidence
offered to prove a vital fact is so weak as to do no more than create a mere
surmise or suspicion of its existence, the evidence is no more than a scintilla
and, in legal effect, is no evidence.’”
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). If the evidence allows only one inference,
neither jurors nor the reviewing court may disregard it. Id.
However, if the evidence at trial would enable reasonable and
fair-minded people to differ in their conclusions, then the fact-finder must be
allowed to do so. Id. A reviewing court cannot substitute its
judgment for that of the fact-finder, so long as the evidence falls within this
zone of reasonable disagreement. Id.<o:p></o:p></div>
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In conducting a factual-sufficiency review, we must consider, weigh,
and examine all of the evidence that supports or contradicts the fact-finder’s
determination. Plas-Tex, Inc. v. U.S.
Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).
We may set aside a verdict only if the evidence supporting it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong or
manifestly unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986). When
conducting a factual-sufficiency review, we must not merely substitute our
judgment for that of the fact-finder. Golden Eagle Archery v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003). The
fact-finder is the sole judge of the credibility of witnesses and the weight to
be given to their testimony. Id.<o:p></o:p></div>
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In any case involving an issue of conservatorship, the best interest of
the child must always be the primary consideration of the trial court. Tex. Fam. Code Ann. § 153.002 (Vernon
2008). The court must presume that the
best interest of the child is served by appointing a biological parent as sole
managing conservator or both biological parents as joint managing conservators. See id. § 153.131(a) (Vernon 2008); see also
In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Mumma v. Aguirre, 364 S.W.2d 220,
221 (Tex. 1963). Nonparents seeking
conservatorship carry a “heavy burden” of overcoming this presumption. Lewelling v. Lewelling, 796 S.W.2d 164, 167
(Tex. 1990). It is no longer adequate to
offer evidence that a nonparent would be a better custodian of a child. Id.
Instead, the parental presumption may only be rebutted with proof of
certain findings prescribed by statute.
Id.<o:p></o:p></div>
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A nonparent may rebut the presumption in favor of a biological parent
only if evidence is produced showing that appointment of the biological parent
as managing conservator would “significantly impair the child’s physical health
or emotional development.” Tex. Fam.
Code Ann. § 153.131(a); see In re R.T.K., 324 S.W.3d 896, 902–03 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied).
A nonparent may also overcome the presumption by producing evidence of
“a history or pattern of past . . . physical . . . abuse by [a] parent directed
against the other parent, a spouse, or a child.” Tex. Fam. Code Ann. § 153.004(b) (Vernon
2008). In disputes between a parent and
a nonparent, the Texas Legislature has mandated that “close calls” should be
decided in favor of the biological parent.
Lewelling, 796 S.W.2d at 168.
Here, the trial court instructed the jury, in pertinent part, as
follows:<o:p></o:p></div>
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The biological parent shall be appointed sole managing conservator, in
preference to a non-parent, unless appointment of the biological parent would
not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development.<o:p></o:p></div>
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“Significantly Impair” means the non-parent must affirmatively prove by
a preponderance of the evidence through specific actions or omissions of the
parent that demonstrate that an award of custody to the parent would result in
physical or emotional harm to the child. <o:p></o:p></div>
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[Mother] notes that much of the record evidence, including evidence of
the child’s “severe diaper rash” and the condition of her and Alaniz’s home
when police officers took the child, her use of cocaine while she was
unknowingly pregnant with her second child, her two misdemeanor convictions,
and her intoxication at an airport in 2007, concerns conduct that occurred
three or more years prior to trial. She
asserts that this evidence does not implicate her “present parental fitness” or
support the jury’s finding that her conservatorship would significantly impair
the child’s physical health or emotional development. <o:p></o:p></div>
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In support of her assertion, [Mother] relies on In re S.W.H, 72 S.W.3d
772 (Tex. App.—Fort Worth 2002, no pet.).
In S.W.H, the court held that evidence that a mother had been twice
incarcerated for testing positive for narcotics, in violation of her probation
and more than four years prior to trial, was insufficient to support a finding
that the appointment of the mother as managing conservator of the child would
significantly impair the child. Id. at
777–78. Noting that the mother had
presented uncontroverted evidence that she had remained “clean” for three years
prior to trial, the court explained that “evidence of past misconduct may not,
by itself, be sufficient to show present parental unfitness.” Id. at 778.
Furthermore, the Thirteenth Court of Appeals has noted that if a 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.” May v. May,
829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied); see also In
re M.W., 959 S.W.2d 661, 666 (Tex. App.—Tyler 1997, writ denied) (“When
determining fitness of a parent, the material time to consider is the
present.”). However, past misconduct may
be considered due to the “permissible inference that an adult person’s future
conduct may well be measured by [their] recent deliberate past conduct as it
may be related to the same or a similar situation.” Id. <o:p></o:p></div>
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Here, Kranz and Danet’s evidence concerning [Mother]’s more recent
conduct in Houston does reveal that [Mother] brought different men with her on
her visits with the child, visited the child only twice a year after losing
custody of him, showed up late to a visit, tried to board an airplane while
intoxicated, “snuck” into the Houston Children’s Museum, and, after travelling
to New Orleans following a visit with the child, did not call the child for
three weeks. Weiser did also testify
that the child, during one of [Mother]’s visits at a hotel, “went under” the
water in a pool three times and she had to pull him out of the water. This evidence, however, does not establish
that [Mother]’s past misconduct is sufficiently linked to her fitness, at the
time of trial, to be the child’s custodian.
Kranz and Danet did not present evidence that [Mother]’s past drug use,
misdemeanor criminal history, or Alaniz’s domestic violence, all of which
occurred approximately four or more years prior to trial, constitute ongoing
problems or part of a more recent pattern of behavior. Thus, the jury could not have reasonably
inferred that [Mother]’s more remote conduct implicated her parental fitness,
at the time of trial, such that the appointment of her as the sole managing
conservator of the child would significantly impair the child’s physical health
or emotional development. See May, 829
S.W.2d at 376–77.<o:p></o:p></div>
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Furthermore, Kranz and Danet’s evidence of [Mother]’s more recent
conduct does not itself constitute evidence that the appointment of [Mother] as
the sole managing conservator of the child would significantly impair the
child’s physical health or emotional development. Again, “[i]t is no longer adequate to offer
evidence that the nonparent would be a better custodian of the child.” Lewelling, 796 S.W.2d at 167. The jury could have reasonably inferred that
Kranz and Danet would be better custodians of the child based on [Mother]’s
actions in sneaking into the Houston Children’s Museum, bringing different men
to her visits with the child, and, after a visit with the child, taking a
spontaneous trip to New Orleans and not calling the child. However, there is no evidence that [Mother]’s
conduct, albeit clearly inappropriate, constitutes “specific actions or
omissions” that demonstrate that awarding her conservatorship would
significantly impair the child’s physical health or emotional development. See Tex. Fam. Code Ann. § 151.131(a). <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Kranz and Danet rely heavily on their evidence that the child “nearly
drowned” during one of [Mother]’s visits.
Although Weiser did testify that he “went under” water three times at a
hotel swimming pool during a visit, there is no evidence that the child “nearly
drowned.” Indeed, the child was
accompanied by three adults: [Mother], Weiser, and Kranz. And [Mother] had to watch her younger son as
well during the visit. Given these
undisputed facts, the jury could not have reasonably inferred that the incident
constitutes evidence that [Mother]’s conservatorship would significantly impair
the child’s physical health or emotional development. <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Finally, Kranz and Danet argue that, even without reference to [Mother]’s
conduct, “removing [the child] from the only home he has ever known” would “significantly
impair his emotional development.” This
court has recently held that a trial court could have reasonably concluded that
removing a child from “the only person who has consistently cared” for the
child would “significantly impair” the child’s development. McPherson v. Hollyer, No. 01-09-00619-CV,
2011 WL 1632163, at *6 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.)
(quoting In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.] 2002,
pet. denied)). <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Here, as noted above, the trial court’s charge to the jury included an
instruction stating that “significantly impair” means “the non-parent must
affirmatively prove by the preponderance of the evidence through specific
actions or omissions of the parent that demonstrate that an award of custody to
the parent would result in physical or emotional harm to child.” (Emphasis added.) [Mother] notes that the charge explicitly
required Kranz and Danet to prove “specific acts or omissions” on her part to
override the parental presumption in her favor and, regardless of our holding
in McPherson, “it is the court’s charge . . . that measures the sufficiency of
the evidence when the opposing party fails to object.” Osterburg v. Peca, 12 S.W.3d 31, 55 (Tex.
2000).<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
“When neither party objects to a jury instruction, an appellate court
must review the sufficiency of the evidence in light of the instruction
actually given, even if the statement of the law in the charge is not correct,
and even if the charge as given effectively increases the burden of proof on a
party beyond that actually required by the correct law or results in a ‘more
rigorous’ standard of proof.” See
Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d
764, 782 (Tex. App.—Houston 2011, no pet.) (citing Romero v. KPH Consol., Inc.,
166 S.W.3d 212, 220–21 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d
711, 715 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.23d 62, 71 (Tex.
2000); IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 897,
n.8 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)). <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Here, the trial court’s charge to the jury explicitly required that
Kranz and Danet prove, by a preponderance of the evidence, that “specific
actions or omissions” of [Mother] demonstrated that her custody of the child
would result in physical or emotional harm to the child. Thus, the jury could not rely solely on Kranz
and Danet’s evidence that removing the child from their custody would be
difficult and traumatic for the child.
In sum, Kranz and Danet did not present any evidence of [Mother]’s
specific acts or omissions from which a fact finder could reasonably infer that
the appointment of [Mother], the child’s biological parent, as sole managing
conservator of the child would significantly impair the child’s physical health
or emotional development.[3]
Accordingly, we hold that the evidence is legally insufficient to
support the jury’s finding that Kranz and Danet, as non-parents, should be
appointed the child’s managing conservators.
See City of Keller, 168 S.W.3d 802 at 810.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
We sustain [Mother]’s first issue.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<b>Conclusion<o:p></o:p></b></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
We reverse the order of the trial court and render an order appointing [Mother]
as sole managing conservator of the child.
We also modify the order pursuant to the parties’ partial-settlement
agreement and appoint Kranz and Danet as possessory conservators.[4] <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Terry Jennings<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Justice <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
Panel consists of Justices Jennings, Sharp, and Brown.<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00963-CV – 4/12/2012 <o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<br /></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
--------------------------------------------------------------------------------<o:p></o:p></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-size: 10pt;">[1] See Tex. Fam. Code Ann. § 153.005
(Vernon 2008).<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-size: 10pt;">[2] See Tex. R. Civ. P. 11.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-size: 10pt;">[3] To the extent that Kranz and Danet
argue that any harmful effect of removing the child from their custody would be
precipitated by an act or omission of [Mother], whether by her moving to
Wisconsin or visiting the child only twice a year, on average, since losing
custody, [Mother] notes that she moved to Wisconsin for the purpose of escaping
from Alaniz and living with her mother.
She also notes that she did not have the economic means to make more
frequent visits to Houston to visit the child.
Furthermore, “the fact that [the child] has lived with [Kranz and Danet]
for such a lengthy period is largely attributable to delays” in the judicial
proceedings. See Lewelling, 796 S.W.2d
at 168 n.9 (noting parent was not at fault for “lengthy appeals process,” so
length of time child spent with non-parents was largely “judicially
created”). Using such a fact to deny a
parent conservatorship of her child would “thwart[] the legislatively-mandated
parental preference.” Id.<o:p></o:p></span></div>
<div class="MsoNormal" style="margin-bottom: 0.0001pt;">
<span style="font-size: 10pt;">[4] In her third issue, [Mother] asks,
as do Kranz and Danet, that this court enforce the agreement that “[i]n the
event that the Court of Appeals reverses the judgment of the Trial Court and
renders judgment appointing [Child’s Mother] as the sole managing conservator .
. . [Mother] agrees that [Kranz and Danet] shall be appointed as possessory
conservators at the conclusion of this appeal.
In this event, the Parties agree to jointly request the Court of Appeals
to implement this Agreement by rendering judgment appointing [Kranz and Danet]
as possessory conservators.” See Tex. R.
Civ. P. 11. Because we reverse the
judgment of the trial court and render judgment in favor of [Mother], we render
an order appointing Kranz and Danet as possessory conservators pursuant to the
terms of the parties’ agreement. See
Tex. R. App. P. 42.1(a)(2)(A) (permitting appellate court to render judgment
effectuating agreement of parties).<o:p></o:p></span></div>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com1tag:blogger.com,1999:blog-2786060346148331828.post-57084643057370432502011-10-13T00:17:00.000-07:002011-10-13T00:17:25.260-07:00Is a claim of Adoption by Estoppel, equitable adoption viable in Texas?<b><span class="Apple-style-span" style="color: #0b5394;">ADOPTION BY ESTOPPEL - ADOPTION WITHOUT FORMALITIES & COURT ORDER</span></b><br />
<br />
Adoption by estoppel is a remedy applied when efforts to adopt are ineffective because of failure to strictly comply with statutory adoption procedures or because, out of neglect or design, an agreement to adopt is not performed. <i>See Cavanaugh v. Davis</i>, 149 Tex. 573, 235 S.W.2d 972, 973-74 (1951); <i>Luna v. Estate of Rodriguez</i>, 906 S.W.2d 576, 579-80 (Tex. App.—Austin 1995, no writ).<br />
<br />
Parties who live in a parent-child relationship based on an unperformed agreement to adopt the child do not create the legal status of a parent and child, but a parent’s promises and conduct can create an equitable adoption which allows the child to assert intestate succession rights to the parent’s estate. <i>See Heien v. Crabtree</i>, 369 S.W.2d 28, 30 (Tex. 1963). The burden is on the proponent to establish the existence of the equitable adoption by a preponderance of the evidence. <i>Moran v. Adler</i>, 570 S.W.2d 883, 885 (Tex. 1978). An agreement to adopt between the parties, i.e., between the adoptive parent and the child, or between the adoptive parent and the natural parent, must exist before the trial court may apply the equitable doctrine of adoption by estoppel. <i>Cavanaugh</i>, 235 S.W.2d at 974; <i>In re Estate of Castaneda</i>, 687 S.W.2d 465, 466 (Tex. App.—San Antonio 1985, no writ). Proof of the agreement does not require direct evidence; circumstantial evidence will suffice where it is clear, convincing, and unequivocal. <i>Cavanaugh</i>, 235 S.W.2d at 975, 978.<br />
<br />
SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00011-CV - 10/12/11<br />
<br />
<br />
After reviewing the evidence presented in favor of the probate court’s finding, we conclude it was legally sufficient to support the finding that there was no agreement by Whiting to adopt Summer. Of the eight witnesses who testified, not one stated that Whiting agreed to adopt Summer. There is no evidence that a formal adoption proceeding was ever contemplated by Whiting, nor is there evidence that Whiting made an express promise to adopt Summer. Although all of the witnesses testified to the loving “father-daughter” relationship between Whiting and Summer, emotional bonds do not impute the legal bond of adoption absent evidence of an agreement to adopt. <i>See Johnson v. Chandler,</i> No. 14-03-00123-CV, 2004 WL 1946077,<br />
at *4 (Tex. App.—Houston [14th Dist.] Sept. 2, 2004, no pet.) (mem. op.); <i>Acevedo v. Acevedo</i>, No. 03-03-00309-CV, 2004 WL 635321, at *3 (Tex. App.—Austin Apr. 1, 2004, no pet.) (mem. op.); <i>see also Estate of Castaneda</i>, 687 S.W.2d at 466 (fact that alleged adoptive father supported appellants and referred to them as his children was insufficient to establish an adoption by estoppel absent evidence of an agreement or promise to adopt). Accordingly, we hold the evidence was legally sufficient to support the finding.GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-35407787152844916472011-10-12T23:22:00.000-07:002011-10-12T23:25:22.443-07:00Modification of temporary order without notice undone by court of appeals in mandamus proceeding<b><span class="Apple-style-span" style="color: #0b5394;">EXCERPT OF OPINION BY JUSTICE BARNARD - SAN ANTONIO COURT OF APPEALS</span></b><br />
<br />
In a suit affecting the parent-child relationship, the trial court may make a temporary order for the safety and welfare of the child, including an order modifying a prior temporary order. TEX. FAM. CODE ANN. § 105.001(a) (West 2008). A temporary order for the conservatorship of the child may not be rendered without notice and a hearing. TEX. FAM. CODE ANN. § 105.001(a), (b), (h); <i>Herring</i>, 221 S.W.3d at 730.<br />
<br />
The challenged order in the underlying proceeding is an order modifying a prior temporary order. See TEX. FAM. CODE ANN. § 105.001(a). Therefore, Michelle was entitled to notice and an adversary hearing before the entry of a new temporary order modifying the custody of K.R.A. See TEX. FAM. CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. The parties agree that the only motion set for the hearing on August 30, 2011 was the reconsideration of the motion to strike Michelle’s plea in intervention. Nicole did not file and serve on Michelle any pleading asking the court to give her temporary custody. Also, there is nothing in the record suggesting the new temporary order was prompted by an emergency.<br />
<br />
However, Nicole and Judge Arteaga each contend in their responses to this court that because Michelle’s motion for reconsideration of the motion to strike Michelle’s plea in intervention was set for a hearing, Michelle was on notice that the temporary orders could be modified, and, therefore, she should have been prepared for such a hearing. However, notice of the motion for reconsideration of the motion to strike Michelle’s plea in intervention did not confer on Michelle notice of the modification of temporary orders. First, the motion to reconsider was not ruled on at the hearing; therefore, there was no immediate reason to enter new temporary orders removing K.R.A. from Michelle’s home. Also, even if the trial court had granted the motion for reconsideration and struck Michelle’s plea in intervention, she would not be testifying or seeking any relief in the form of a modified temporary order because she would no longer be a party to the case. Therefore, she would have no reason to object to the lack of notice. Based on the foregoing, we do not find merit to Nicole and Judge Arteaga’s argument that by virtue of the motion to reconsider the motion to strike Michelle’s intervention pending before the trial court that Michelle was on notice that a modification of the temporary orders was before the trial court.<br />
<br />
Judge Arteaga further contends Michelle failed to preserve her complaint because her conclusory and general statement that she needed more time and would like to call witnesses was insufficient to put the trial court in the position of having adequate facts to address relator’s complaint. However, the record clearly reveals Michelle objected to the lack of notice and hearing regarding the temporary orders. When Judge Arteaga first informed the parties she would be considering sua sponte whether to modify the temporary orders, Michelle’s counsel responded, “Judge, there’s no motion for temporary orders on file. We have no notice and that would be a very real violation to my client’s right to due process - - to conduct a temporary orders hearing today. . . . There’s nothing in there about temporary orders. We’re not ready for that. . . .We are not prepared to proceed on that today.” Counsel later reiterated, “We are not ready. We have received no notice. We have no witnesses.” Clearly, the record reveals Michelle objected to the lack of notice and a proper hearing regarding the modification of temporary orders.<br />
<br />
Finally, Judge Arteaga contends Michelle was afforded the opportunity to present evidence, and chose not to. However, without having notice that the existing temporary orders would be modified, Michelle was clearly not prepared to present such evidence regarding the safety and welfare of the child and to rebut Nicole’s testimony in response to Judge Arteaga’s questions. See TEX. FAM. CODE ANN. § 105.001(a), (b).<br />
<br />
As a result of the foregoing, we conclude the trial court abused its discretion in failing to provide Michelle with notice prior to modifying the existing temporary orders. See TEX. FAM.<br />
<br />
CODE ANN. § 105.001(a), (b), (h); Herring, 221 S.W.3d at 730. Accordingly, we do not find it necessary to address Michelle’s remaining issues presented to this court.<br />
<br />
CONCLUSION<br />
<br />
Based on the foregoing analysis, we hold the trial court clearly abused its discretion in modifying the existing temporary orders without notice and a hearing. Accordingly, we conditionally grant the petition for writ of mandamus. The trial court is ordered to withdraw the August 30, 2011 order modifying the existing temporary orders. The writ will issue only if the trial court fails to comply within fourteen days.<br />
<br />
Marialyn Barnard, Justice<br />
<br />
SAN ANTONIO COURT OF APPEALS - 04-11-00641-CV - DECIDED 10/12/2011<br />
<br />
<div class="MsoNormal"><span class="Apple-style-span" style="color: #004dbb;"><span class="Apple-style-span" style="line-height: 18px;"><b>CRITERIA FOR MANDAMUS RELIEF </b></span></span><br />
<span class="Apple-style-span" style="color: #004dbb; line-height: 18px;"><b>[</b>Order by appellate court directing trial court judge to change or set aside order that is otherwise not appealable or cannot be appealed immediately] </span></div><div class="MsoNormal"><span lang="EN" style="font-size: 12pt; line-height: 115%;"><br />
</span></div><div class="MsoNormal"><span lang="EN" style="font-size: 12pt; line-height: 115%;">Mandamus will issue only to correct a clear abuse of discretion for which the relator has no adequate remedy at law. <i> </i><i>In re Prudential Ins. Co. of Am</i>., 148 S.W.3d 124, 135 (Tex. 2004) (orig. proceeding); <i>Walker v. Packer</i>, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). <o:p></o:p></span></div><div class="MsoNormal"><span lang="EN" style="font-size: 12pt; line-height: 115%;"><br />
</span></div><div class="MsoNormal"><span lang="EN" style="font-size: 12pt; line-height: 115%;">“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,” and “a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion.” <i>Walker</i>, 827 S.W.2d at 840. </span></div><div class="MsoNormal"><span lang="EN" style="font-size: 12pt; line-height: 115%;"><br />
</span></div><div class="MsoNormal"><span lang="EN" style="font-size: 12pt; line-height: 115%;">Because temporary orders in suits affecting the parent-child relationship are not appealable, mandamus is an appropriate remedy when a trial court abuses its discretion. <i>See Dancy v. Daggett</i>, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding); In re Herring, 221 S.W.3d 729, 730 (Tex. App.—San Antonio 2007, orig. proceeding).<o:p></o:p></span></div><div class="MsoNormal"><span lang="EN" style="color: #004dbb; font-size: 12pt; line-height: 115%;"><br />
</span></div>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-30022789726746220042011-08-20T12:41:00.000-07:002011-08-20T12:46:03.673-07:00Judicial enforcement of contractual visitation agreement by specific performance<strong><span style="color:#000099;">MEMORANDUM OPINION BY JUSTICE ELSA ALCALA
<br /></span></strong>
<br />[Father] appeals the trial court's order granting specific performance of an extrajudicial visitation agreement in which he agreed to allow his parents, [...] to have access to his son, D.J.M. In eight issues, [Father] contends that the trial court erred by granting specific performance of the 2007 visitation agreement, by denying his request for sanctions, by granting sanctions against him, and by finding against him on his claim for fraud. We conclude that [Father's] appeal of the trial court's denial of sanctions against [Grandparents] was not preserved, that his appeal of sanctions entered by the trial court against him is moot, that he inadequately briefed his argument that the 2007 agreement is unconstitutional, that presumed findings of fact support the trial court's implied rejection of [Father's] contract defenses, and that presumed findings of fact support a judgment against [Father] on his fraud claim. We affirm.
<br />
<br />Background
<br />
<br />D.J.M lived with his father, [Father's name] ("the father"), and his father's parents, [Granparents' names] (collectively, "the grandparents"). D.J.M.'s mother was not part of his life at any time relevant to this suit. The grandparents helped raise D.J.M.: they took him to school, fixed meals, took care of him when the father was at work or at school, and attended Grandparents Day events.
<br />
<br />In May 2007, the father moved out of the grandparents' house, taking D.J.M. with him. The father left some of his and D.J.M.'s possessions in the grandparents' house. Janet testified that the father cut off all contact between the grandparents and D.J.M. except for one phone call. The father testified that he permitted the grandparents to speak to D.J.M. on the phone and allowed limited contact by mail. The father testified that he reduced contact between D.J.M. and his grandparents because he "believed that it would help transition [D.J.M.] into a new home . . . [and] very much because [he] was still angry with them."
<br />
<br />In an effort to reunite with D.J.M., the grandparents asked John Mara, the attorney who represented the father during the original custody proceedings concerning D.J.M, to serve as a mediator between the parties. Although at the time, the father believed that Mara was acting as a mediator, he now disputes whether Mara acted impartially. The father testified that the possibility of the grandparents filing a lawsuit was raised several times and that he could not afford litigation. The parties eventually executed a document titled "Agreement for Visitation and Access to the Child" on September 13, 2007 ("the 2007 agreement"). Among numerous other provisions, the document stated:
<br />
<br />WHEREAS, the grandparents and the father . . . acknowledge that the grandparents have had a substantial and significant past contact with the child and are persons other than foster parents who, long [sic] with the father, have had actual care, control and possession of the child for at least six (6) months; and
<br />WHEREAS, the grandparents and the father desire to work out their differences regarding visitation with the child through agreement rather than filing a formal suit affecting the parent-child relationship and obtain a formal court order, for economic reasons and further due to difficulty, expense and burden of locating the biological mother for the child whom none of the parties hereto have heard from for over five years; and
<br />WHEREAS, the grandparents and the father agree that this Agreement for Visitation and Access to the Child . . . is in the best interest of the child.
<br />The 2007 agreement was never made part of a formal court visitation order. After the 2007 agreement was signed, the father reclaimed his and D.J.M.'s possessions that had remained in the grandparents' house.
<br />
<br />The father and the grandparents performed in accordance with this document until January 2009, when the father informed the grandparents that he would no longer abide by the 2007 agreement. He gave the grandparents a document that stated in total:
<br />
<br />This is to notify Bruce and Janet McConnell that I, Shay McConnell, am of the belief that it is no longer nor was it ever at any time beneficial to continue with visitation between [D.J.M.] and his grandparents (Bruce and Janet) as decreed in the written contract reached on September 13th, 2007. It is from my priorly [sic] mentioned belief that I base my decision to end mine and my son's involvement in the visitation outlined in the contract. With my decision to end the visitation I do offer Bruce and Janet McConnell the opportunity to re-establish relations with my son and family in a more average grandparent capacity. Where-in they will be able to interact with [D.J.M.] and the rest of my family as is convenient for all involved parties. As a requirement of the re-establishment of a more average grandparent relationship I do require that Bruce and Janet relinquish, in writing, the visitation given to them in the contract reached on September 13th, 2007.
<br />
<br />After giving the grandparents this document, the father allowed the grandparents two supervised visits with D.J.M. The grandparents brought the present lawsuit, seeking a modification of the original custody order or, in the alternative, specific performance of the 2007 agreement. The father answered, asserting a number of contract defenses against the 2007 agreement as well as counterclaims for fraud and conspiracy.
<br />
<br />After the father informed the grandparents that he would no longer abide by the 2007 agreement, the parties attempted mediation. The mediation resulted in an agreement dated March 5, 2009, that permitted the grandparents to see D.J.M. for four hours on the first Sunday of every month ("the mediated agreement"). The copy of the agreement in the record shows that the parties modified the title from the original "Binding Mediated Settlement Agreement" to "Mediated Settlement Agreement as to A Contract Only." The parties also struck the boldface, all-capitals paragraph that declared that the mediated agreement was irrevocable and that either party was entitled to judgment on the agreement under the Family Code.
<br />
<br />During the pendency of the litigation, the father moved to dismiss and for sanctions against the grandparents. The trial court dismissed the modification action and gave the grandparents a deadline of April 14, 2009 "to amend their contract claim, if any." The trial court's order stated, "[A]ll other matters are held over." The grandparents submitted a "Second Amended Petition to Modify Parent-Child Relationship" on April 14. This pleading included a claim for breach of contract with a request for specific performance of the 2007 agreement.
<br />
<br />The grandparents sought to depose the father, who responded to the grandparents' notice by filing a motion for protective order within three business days. The grandparents went forward with the deposition and filed a certificate of nonappearance with the trial court in which the court reporter stated that the father did not appear and that the costs to the grandparents' attorney would be $150. The appellate record includes a docket entry from the associate judge in the case that indicates a sanction of $150 was imposed against the father for his failure to appear.
<br />
<br />The trial court held a hearing on February 22, 2010, on the grandparents' claim for specific performance. After hearing testimony from Janet and the father, the trial court granted specific performance of the 2007 agreement. The trial court concluded that an order of specific performance would not be "state action" so as to raise the constitutional presumption that a fit parent should decide what is best for his child. The trial court also observed that there were matters about the contract that the parties should amend but concluded that it did not have authority to alter a private agreement between the father and the grandparents. Finally, the court orally ordered that the previous sanction order "be satisfied as costs."
<br />
<br />The 2007 Agreement
<br />
<br />In his third, fourth, fifth, sixth, and seventh issues, the father raises various challenges to the trial court's order of specific performance of the 2007 agreement. He asserts that enforcement of the 2007 agreement violates his authority as a parent, that the 2009 mediated settlement agreement functioned as a novation of the 2007 agreement, and that the trial court erred in impliedly rejecting his contract defenses to the 2007 agreement.
<br />
<br />A. Standard of Review
<br />
<br />Specific performance is an equitable remedy, which rests within the sound discretion of the trial court. Smith v. Dass, Inc., 283 S.W.3d 537, 542 (Tex. App.-Dallas 2009, no pet.). The test for abuse of discretion is whether the trial court "acted without reference to guiding rules and principles." Id. (quoting Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004)). We will reverse the trial court only if its ruling is arbitrary or unreasonable. Id.
<br />
<br />Because many of these contract issues require a fact-based analysis, we observe that the trial court did not enter findings of fact and conclusions of law and that the father did not request that it do so. Where the trial court does not render findings of fact or conclusions of law, we assume that it made all findings necessary in support of its judgment. Pharo v. Chambers Cnty., 922 S.W.2d 945, 948 (Tex. 1996). If the trial court's implied findings are supported by the evidence, we must uphold the judgment on any theory of law applicable to the case. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). In determining whether some evidence supports the judgment and implied findings of fact, we consider only that evidence most favorable to the issue and disregard entirely any contrary evidence. Id.
<br />
<br />B. Novation
<br />
<br />In his third issue, the father contends that the 2009 mediated settlement agreement and the 2007 agreement are "inconsistent on their face," and that "the 2009 agreement, by novation, should have replaced [the 2007 agreement] as the current agreement." The grandparents assert that we should imply a finding by the trial court that the 2009 mediated settlement agreement was only temporary, pending trial.
<br />
<br />The essential elements of a novation are (1) a previous, valid obligation; (2) a mutual agreement of the parties to the acceptance of a new contract; (3) the extinguishment of the old contract; and (4) the validity of the new contract. Beal Bank, S.S.B. v. Schleider, 124 S.W.3d 640, 653 at n.7 (Tex. App.-Houston [14th Dist.] 2003, pet. denied). The father does not concede that the 2007 agreement was a valid obligation; however, assuming that it was, he asserts that the evidence establishes the remaining elements. The grandparents challenge the second and third elements of novation, mutual agreement to the new contract and extinguishment of the old contract.
<br />
<br />Mediated settlement agreements are addressed by the Texas Family Code. A mediated settlement agreement is binding only where it "provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation[.]" TEX. FAM. CODE ANN. § 153.0071(d)(1) (West 2009). Here, the grandparents emphasize that the boldfaced term "Binding" was crossed out of the heading of the 2009 mediated settlement agreement as was the boldfaced paragraph stating that each party understood that the 2009 mediated settlement agreement was not subject to revocation. Further, the grandparents observe that the trial court said to their attorney, "your position is that MSA from March 5th, 2009 is at best and intended to be a Temporary Order in this lawsuit and that all of the boldface language is crossed out in the agreement. So, I take it . . . your position or your client's position is that they are revoking this agreement[.]" The grandparents contend, therefore, that the trial court necessarily found that the 2009 mediated settlement agreement was intended to be temporary and not a permanent replacement for the 2007 agreement.
<br />
<br />The father does not address the written alterations to the 2009 mediated settlement agreement. Because we imply all findings necessary to support the judgment, we conclude that the trial court must have found that the alterations to the 2009 mediated settlement agreement indicated that the grandparents did not agree that the 2007 agreement should be extinguished or that the 2009 mediated settlement agreement should form a new contract. Pharo, 922 S.W.2d at 948. We hold that the father has not established all elements of novation. Beal Bank, 124 S.W.3d at 653, n.7.
<br />
<br />We overrule the father's third issue.
<br />
<br />C. Contract Defenses
<br />
<br />In his fourth and fifth issues, the father asserts a number of contract defenses against the 2007 agreement. Specifically, in his fourth issue, he asserts "unclean hands, including duress, fraudulent inducement, mistake, and novation." In his fifth issue, he asserts that the 2007 agreement was "on its face unconscionable and against public policy." In his combined discussion of these two issues, he also asserts that the 2007 agreement lacked consideration and was a result of coercion.
<br />
<br />1. Unclean Hands
<br />
<br />The father mentions the equitable defense of "unclean hands" in his brief to this court, but the case he cites does not discuss the doctrine, and we cannot discern any argument applying the doctrine of unclean hands to the facts of this case. We hold that the father's bare assertion of "unclean hands" does not present anything for our review and thus is waived as a sub-issue to his contract challenges. See TEX. R. APP. P. 38.1(i).
<br />
<br />2. Duress and Coercion
<br />
<br />The father asserts two forms of duress: economic duress, in that he could not afford to defend against the grandparents' threatened lawsuit, and duress of property, in that the parents threatened to withhold his and D.J.M.'s property if he did not signed the 2007 agreement. The father also asserts that he was coerced into signing the 2007 agreement because the grandparents threatened to sue him when, according to the father, they lacked standing to do so.
<br />The father's economic duress and coercion defenses are based solely on the grandparents' alleged threats to sue and his contentions that the suit was improper because the grandparents lacked standing. A threat to sue is neither duress nor coercion. Cont'l Cas. Co. v. Huizar, 740 S.W.2d 429, 430 (Tex. 1987); McCloskey v. San Antonio Traction Co., 192 S.W. 1116, 1120 (Tex. Civ. App.-San Antonio 1917, writ ref'd). This is so even if the claim asserted is wrongful or unlawful. Wright v. Sydow, 173 S.W.3d 534, 544 (Tex. App.-Houston [14th Dist.] 2004, pet. denied) (citing Cont'l Cas. Co., 740 S.W.2d at 430; Ward v. Scarborough, 236 S.W. 434, 437 (Tex. Comm'n App. 1922)). We hold that as a matter of law, the trial court did not abuse its discretion by impliedly rejecting these defenses. See Cont'l Cas. Co., 740 S.W.2d at 430; Wright, 173 S.W.3d at 544.
<br />
<br />The father's duress of property defense is based entirely on his assertion that the grandparents refused to turn over his and D.J.M.'s property until he signed the 2007 agreement. While this claim comports with the father's testimony, D.J.M.'s grandmother told the trial court that the father could have claimed the items at any time had he made prior arrangements. Because we imply all findings of fact necessary to support the trial court's judgment, we will presume that the trial court credited the grandmother's testimony and did not believe the father. See Pharo, 922 S.W.2d at 948. Having concluded that the trial court did not credit the sole evidence in favor of the father's duress of property defense, we hold that the trial court did not abuse its discretion in impliedly rejecting that defense.
<br />
<br />3. Fraud and Mistake
<br />
<br />On appeal, the father asserts that the 2007 agreement was invalid on grounds of fraudulent inducement and fraud by non-disclosure or avoidable based on mutual mistake or unilateral mistake. He contends that either the grandparents misrepresented their standing to sue him or they were mistaken. Having asserted that the grandparents lacked standing to sue him in September 2007, he contends that the primary consideration for the 2007 agreement was "meaningless" and was, therefore, "voidable" by his communication to the grandparents in January 2009.
<br />
<br />The elements of fraud as a defense to breach of contract are: (1) a material representation was made (2) that was false, (3) that when the representation was made, the speaker knew it was false or made it as a positive assertion recklessly without any knowledge of the truth, (4) that the representation was made with the intention that it be acted upon by the other party, (5) that the other party acted in reliance upon the representation, and (6) that the other party suffered injury. See Johnson & Higgins of Tex., Inc. v. Kenneco Energy, Inc., 962 S.W.2d 507, 524 (Tex. 1998). Non-disclosure fraud is a species of fraud where a party has a duty to disclose that renders the failure to do so as misleading as a positive misrepresentation. Schlumberger Tech. Corp. v. Swanson, 959 S.W.2d 171, 181 (Tex. 1997).
<br />
<br />"Pursuant to the doctrine of mutual mistake, when parties to an agreement have contracted under a misconception or ignorance of a material fact, the agreement will be avoided." Myrad Props., Inc. v. LaSalle Bank Nat'l Ass'n, 300 S.W.3d 746, 751 (Tex. 2009) (quoting Williams v. Glash, 789 S.W.2d 261, 264 (Tex. 1990)). "The question of mutual mistake is determined not by self-serving subjective statements of the parties' intent, which would necessitate trial to a jury in all such cases, but rather solely by objective circumstances surrounding execution of the [contract]." Id. Alternatively, we may set aside a contract based on a unilateral mistake where "(1) the mistake is of so great a consequence that to enforce the contract would be unconscionable; (2) the mistake relates to a material feature of the contract; (3) the mistake occurred despite ordinary care; and (4) the parties can be placed in status quo, i.e., the rescission must not prejudice the other party except for the loss of the bargain." Ledig v. Duke Energy Corp., 193 S.W.3d 167, 175 (Tex. App.-Houston [1st Dist.] 2006, no pet.) (internal quotation omitted).
<br />
<br />The only evidence supporting the father's claim that he misunderstood the merits of a potential lawsuit at the time the 2007 agreement was negotiated is his own testimony. Presuming that the trial court made all factual findings necessary in support of its judgment, we conclude that the trial court did not credit the father's testimony. See Pharo, 922 S.W.2d at 948. Without the father's testimony that he did not know about the grandparents' standing to file a suit for possession or access, there is no evidence of misrepresentation, omission, or mistake respecting a material fact. We, therefore, hold that the trial court did not abuse its discretion by impliedly rejecting the father's fraud and mistake defenses.
<br />
<br />4. Unconscionability
<br />
<br />In his fifth issue, the father asserts that the 2007 agreement is "incredibly one-sided, giving the grandparents extensive rights and possession and access while giving [the father] substantially nothing." He further asserts that Mara's participation in the negotiation of the 2007 agreement tainted the entire process. Thus, he contends that the 2007 agreement was both substantively and procedurally unconscionable.[1]
<br />
<br />"Unconscionability" has no precise legal definition, and it is to be determined on a case-by-case basis. Arthur's Garage, Inc. v. Racal-Chubb Sec. Sys., Inc., 997 S.W.2d 803, 815 (Tex. App.-Dallas 1999, no pet.); Besteman v. Pitcock, 272 S.W.3d 777, 788 (Tex. App.-Texarkana 2008, no pet.). In general, "unconscionability" describes a contract that is unfair because of its overall one-sidedness or the gross one-sidedness of its terms. Arthur's Garage, 997 S.W.2d at 815. "Although no single test exists to determine if a contract is unconscionable, we begin with two questions: (1) How did the parties arrive at the terms in controversy; and (2) Are there legitimate reasons which justify the inclusion of those terms?" Id. at 815-16. The first question, which describes procedural unconscionability, is concerned with assent and focuses on facts surrounding the bargaining process. Id. at 816. The second question, which describes "substantive unconscionability," is concerned with the fairness of the agreement itself. Id. "[A] contract or contract provision is not invariably substantively unconscionable simply because it is foolish for one party and very advantageous to the other. Instead, a term is substantively unreasonable where the inequity of the term is so extreme as to shock the conscience." Besteman, 272 S.W.3d at 789 (quoting Anaheim Indus. v. GMC, No. 01-06-00440-CV, 2007 WL 4554213, at *9, (Tex. App.-Houston [1st Dist.] Dec. 20, 2007, pet. denied)).
<br />
<br />Whether a contract is unconscionable is a question of law. Arthur's Garage, 997 S.W.2d at 815. However, the determination of the facts that supposedly illustrate unconscionability is a question for the trial court. Besteman, 272 S.W.3d at 788. The party asserting unconscionability must prove both procedural and substantive unconscionability. In re Green Tree Servicing, L.L.C., 275 S.W.3d 592, 603 (Tex. App.-Texarkana 2008, no pet.).
<br />
<br />The father asserts that procedural unconscionability is shown by the participation in the negotiation of Mara, his former attorney from the original suit establishing custody of D.J.M.[2] The father's testimony was the only evidence supporting a finding of inequitable conduct in the process by which the 2007 agreement was reached. We conclude that the trial court must have disbelieved the father when he claimed that Mara's role was anything other than a mediator. There is, therefore, no evidence in support of the procedural prong of our unconscionability analysis. Arthur's Garage, 997 S.W.2d at 815. Because the father was required to establish both prongs to be entitled to a judgment that the 2007 agreement was unconscionable, see In re Green Tree, 275 S.W.3d at 603, we hold that the trial court did not abuse its discretion by impliedly rejecting the father's unconscionability defense.[3]
<br />
<br />5. Lack of Consideration
<br />
<br />The father contends that the grandparents lacked standing to sue for access to D.J.M. at the time the 2007 agreement was executed and that because they lacked standing, their relinquishment of a right to sue amounts to no consideration.
<br />
<br />The existence of a written contract presumes consideration, and the burden was on the father to disprove consideration. Blockbuster, Inc. v. C-Span Entm't, Inc., 276 S.W.3d 482, 488 (Tex. App.-Dallas 2008, pet. granted) (citing Simpson v. MBank Dallas, N.A., 724 S.W.2d 102, 107 (Tex. App.-Dallas 1987, writ ref'd n.r.e.)). The 2007 agreement stated that "in consideration of Ten ($10.00) Dollars which is acknowledged as paid by the grandparents and which is further acknowledged as received by the father, and the further consideration of the mutual representations, agreements and promises contained herein and other good and valuable consideration which is acknowledged as received by the parties hereto, the grandparents and the father agree[d]" to the terms of the agreement. The agreement further states that the parties "desire to work out their differences regarding visitation with the child through agreement rather than filing a formal suit affecting the parent-child relationship . . . for economic reasons." However, the only evidence that the father misunderstood the possible merits of any potential suit that the grandparents could bring was the father's own testimony. The trial court was within its discretion to disbelieve the father's testimony, and because of the lack of findings of fact, we presume that it did so. See Pharo, 922 S.W.2d at 948. Thus, we conclude that the trial court credited the recitations of consideration in the 2007 agreement, and we hold that the trial court did not abuse its discretion in rejecting the father's defense of lack of consideration. See Blockbuster, 276 S.W.3d at 488 (citing Simpson, 724 S.W.2d at 107).
<br />
<br />Having held that none of the father's contract-defense sub-issues shows an abuse of discretion by the trial court, we overrule the father's fourth and fifth issues.
<br />
<br />D. Parental Presumption
<br />
<br />In his seventh issue, the father contends that the trial court erred by ordering specific performance because the 2007 agreement "circumvent[ed]" his "parental presumption." He directs our attention to the U.S. Supreme Court's decision in Troxel v. Granville, a grandparent visitation case. 530 U.S. 57, 120 S. Ct. 2054 (2000). He argues that the trial court failed to "accord at least some special weight to the parent's own determination" and that only he was empowered to determine when the grandparents should have access to his child. See id. at 70, 120 S. Ct. at 2062.
<br />
<br />Beyond merely stating the general holding of Troxel and citing one case from the El Paso court of appeals, see Roby v. Adams, 68 S.W.3d 822, 828 (Tex. App.-El Paso 2002, pet. denied), the father has neither briefed any argument nor cited any case applicable to the particular issues in this case. Specifically, he has not attempted to explain with citations to the record and relevant authority why an order of specific performance of an extrajudicial visitation agreement crafted by the parties should be subject to the same constitutional analysis applied to a statutory visitation order crafted by the courts. We hold, therefore, that the father's seventh issue is waived due to inadequate briefing. See Stephens v. Dolcefino, 126 S.W.3d 120, 126 at n.5 (Tex. App.-Houston [1st Dist.] 2003, pet. denied).
<br />
<br />The portion of the father's brief referring to the "parental presumption" purports to be a combined analysis of his sixth and seventh issues. The father's sixth issue asserts that the trial court erred by ordering specific performance of the 2007 agreement because the father "lawfully rescinded" it. The father provides no argument or authorities relating to rescission. His sixth issue, therefore, presents nothing for our review. TEX. R. APP. P. 38.1(i).
<br />
<br />We overrule the father's sixth and seventh issues.
<br />
<br />Sanctions
<br />
<br />In his first and second issues, the father challenges the trial court's refusal to grant sanctions against the grandparents and its order granting sanctions against him.
<br />
<br />A. Sanctions Against the Father
<br />
<br />In his first issue, the father contends that the trial court erred by adopting the associate judge's award of sanctions. Specifically, the father contends that he timely filed a motion for protective order objecting to the time and place of the deposition, thereby automatically staying the deposition. Thus, he asserts that he should not have been sanctioned for failure to attend the deposition. The grandparents contend that the absence of a transcript of the hearing at which sanctions were imposed and the lack of any objection to the trial court's adoption of the associate judge's award constitute a failure to preserve this issue for appellate review. The grandparents further argue that sanctions are discretionary and may be appropriate even when there is a timely filed motion for protective order. Finally, the grandparents assert that in the absence of findings of fact and conclusions of law, we must imply all facts necessary to support the court's ruling.
<br />
<br />The trial court's "Order In Suit For Specific Performance Of Agreement" contains no mention of sanctions against the father and further states that "all relief requested in this case and not expressly granted is denied." On the other hand, in the transcript of the February 22 hearing, the trial courts states, "The Court is finding that there was a previously ordered sanction in this case, and I'm ordering that that be satisfied as costs and paid on or before March 15th." In a civil case, when the oral pronouncements of the trial court conflict with its written judgment, the written judgment prevails. Nine Greenway Ltd. v. Heard, Goggan, Blair & Williams, 875 S.W.2d 784, 787 (Tex. App.-Houston [1st Dist.] 1994, writ denied). The trial court's written judgment does not award sanctions. Thus, although the father's first issue challenges the trial court's award of a $150 sanction against him, there is no order of sanctions before us for our review. See Morton v. Paradise Cove Property Owners Ass'n, No. 11-08-00022-CV, 2009 WL 2841208 at *2 (Tex. App.-Eastland Sept. 3, 2009, no pet. hist.) (mem. op., not designated for publication).
<br />
<br />We overrule the father's first issue as moot.
<br />
<br />
<br />B. The Father's Motions to Dismiss and for Sanctions
<br />
<br />In his second issue, the father contends that the trial court erred by failing to dismiss the grandparents' Second Amended Motion to Modify the Parent Child Relationship and by declining to sanction the grandparents. He contends that he was entitled to sanctions under the Rules of Civil Procedure and the Civil Practice and Remedies Code. While the father's second issue purports to include a challenge to the trial court's refusal to grant his motion to dismiss, his discussion of that issue contains no argument or authorities relating to that motion. See TEX. R. APP. P. 38.1(i). We, therefore, will only address the father's challenge to the trial court's ruling as to sanctions.
<br />
<br />The father urges us to find that the trial court should have sanctioned the grandparents under Rule 13 of the Rules of Civil Procedure and under sections 9 and 10 of the Civil Practice and Remedies Code. Tex. Civ. Prac. & Rem. Code Ann. §§ 9.011, 10.001-2 (West 2002); TEX. R. CIV. P. 13. We review a trial court's decision whether to impose sanctions under the foregoing provisions for abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581, 582-83 (Tex. 2006); Cire, 134 S.W.3d at 838. The test for whether a trial court abused its discretion is whether it acted without reference to guiding rules or principles. Cire, 134 S.W.3d at 839.
<br />
<br />In the father's analysis, he relies solely on documents that are not before us on appeal. The father directs our attention to "Shay McConnell's First Amended Motion for Sanctions Including Dismiss [sic] and Enforcement of Binding Agreement, attached in Appendix A and part of the supplemental record." The record contains no such document, the father has not provided this Court with any appendix to his brief, and even if the father had filed an appendix, we may not consider documents that are not formally included in the record on appeal. See Sowell v. Kroger Co., 263 S.W.3d 36, 38 (Tex. App.-Houston [1st Dist.] 2006, no pet.). The father also refers to events at a February 25, 2009 hearing for which there is no transcript; the father cites only to the trial court's handwritten docket entry as his record citation. This Court has held that a docket entry "forms no part of the record we may consider; it is a memorandum made for the trial court and clerk's convenience." Miller v. Kendall, 804 S.W.2d 933, 944 (Tex. App.-Houston [1st Dist.] 1990, no writ) (citing Energo Int'l Corp. v. Modern Indus. Heating, Inc., 722 S.W.2d 149, 151-52 (Tex. App.-Dallas 1986, no writ)). Further, the father describes events at a court-ordered mediation for which there is no record; he directs our attention to the mediated agreement, which does not mention sanctions; and finally, he refers to the court's "refus[al] to dismiss or sanction Appellees," citing again to the trial court's docket sheet.
<br />
<br />The only document in the record evidencing the father's motions to dismiss and for sanctions is the court's order of May 1, 2009, that dismisses the grandparents' suit in part.[4] The father does not refer to this document under his second issue. Furthermore, the document does not describe the father's motion. The record, therefore, contains nothing that shows that the father presented the trial court with the arguments he now raises before this Court. The record fails to show the trial court abused its discretion by declining to sanction the grandparents.
<br />
<br />We overrule the father's second issue.
<br />
<br />Fraud
<br />
<br />In his eighth issue, the father contends that the trial court erred by ruling against his affirmative fraud claim. The father does not present any argument or authorities for this issue but instead references his fourth and fifth issues, which present his contract defenses to the 2007 agreement. Where an appellant's brief "does little more than summarily state his point of error, without citations to legal authority or substantive analysis, it is not sufficient to acquaint the Court with the issue and does not present an argument that would allow the court to decide the issue." Wheeler v. Methodist Hosp., 95 S.W.3d 628, 646 (Tex. App.-Houston [1st Dist.] 2002, no pet.); see also TEX. R. APP. P. 38.1. We hold that the father has inadequately briefed his eighth issue and that it is waived. See Wheeler, 95 S.W.3d at 646.
<br />
<br />We overrule the father's eighth issue.
<br />
<br />Conclusion
<br />
<br />We affirm the judgment of the trial court.
<br />
<br /><span style="font-size:85%;">Footnotes:
<br />
<br />[1] In his statement of his fifth issue, the father also suggests that the 2007 agreement is "against public policy." He has briefed no public policy argument, and we, therefore, do not address that issue.
<br />
<br />[2] The father also asserts on appeal that the grandparents have more money and education than he does, facts which have both been identified as possible considerations in a procedural unconscionability analysis. See El Paso Natural Gas Co. v. Minco Oil & Gas Co., 964 S.W.2d 54, 61 (Tex. App.-Amarillo 1998), rev'd, 8 S.W.3d 309 (Tex. 1999). We note that El Paso Natural Gas does not hold that financial or educational imbalance are necessary or sufficient factors but only that they may be considered by the court. We have found no evidence in the trial record of the parties' respective financial status or education level.
<br />
<br />[3] We do not reach the substantive prong of the unconscionability test. However, we note that while the trial court did not issue findings of fact or conclusions of law, it did state for the record its rejection of the father's unconscionability argument:
<br />
<br />Really it's a bit disingenuous for the [father] to present that he was victimized by this process, because if anybody was victimized by it, it was the grandparents. They're the ones that agreed to go along with this contractual process, and you could make the argument that they put their legal rights and interest more in jeopardy than he did by entering into this kind of an agreement.
<br />
<br />[4] The trial court's order states, in relevant part:
<br />
<br />On April 8, 2009 the Court considered the Movant Shay McConnell's Motion to Dismiss and Motion for Sanctions and ORDERS that Motion to Dismiss is GRANTED in part as detailed below and all other matters are held over.
<br />
<br />IT IS ORDERED that the Suit to Modify the Parent Child Relationship is dismissed, leaving only Petitioner's potential contract claims. IT IS FURTHER ORDERED that Petitioners have until 5:00 p.m. on April 14, 2009 to amend their contract claim, if any.
<br />
<br />IT IS FURTHER ORDERED that discovery response time for discovery propounded by Petitioners to Respondent Shay McConnell will not begin to run until and unless Petitioners amend their contract claims.
<br />
<br />The grandparents filed their second amended petition on April 14, as directed by the trial court.
<br />
<br />CASE INFO: First Court of Appeals (Houston) - No. 01-10-00300-CV - Opinion release date: 1/27/2011
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<br />GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-53372693455360801582011-08-20T12:12:00.000-07:002011-08-20T12:51:18.444-07:00Parental presumption given effect after parent's murder; trial court's custody order in favor of grandparents reversedFACTUAL BACKGROUND AND CASE HISTORY <br />
At the time of their mother's murder, J.C. was four years old and S.C. was eight. A temporary order was entered in March 2007, appointing Rubio and the [Maternal Grandparents] as temporary joint managing conservators of the children. The order was modified in May 2008, sometime after [Husband]'s release from police custody. Under the terms of the modified order, [Husband] was to have possession of J.C. two nights each week, with the [Maternal Grandparents] having possession at all other times. The order further stated that the [Maternal Grandparents] were to have possession of S.C. only upon S.C.'s request. In May 2009, the order was modified a second time to afford [Husband] extended periods of possession with his daughter. <br />
<br />
A hearing on the merits was conducted in December 2009. By that time, J.C. had been living with the [Maternal Grandparents] for more than two and a half years. The [Maternal Grandparents] had not seen S.C., however, since early 2007, just a few months after his mother's death. The children's psychologist, Carol Stevens, recommended that S.C. should not be ordered to stay with the [Maternal Grandparents]. According to Stevens, S.C. maintained a close relationship with his father and he feared losing [Husband] to the [Maternal Grandparents]. S.C. was particularly afraid that Mr. Angel might kill [Husband], a threat he apparently made in the presence of S.C. on the first anniversary of Socorro's death. <br />
<br />
During the hearing, Stevens also testified that J.C. should remain in the custody of her grandparents. Stevens found that J.C. had developed a separation anxiety disorder following her mother's death, and based on her professional observations, the target of J.C.'s disorder was the potential loss of her maternal grandmother. Stevens feared that uprooting J.C. from Mrs. Angel would not be in the child's best interest. Indeed, if J.C. were to be taken away from the [Maternal Grandparents], Stevens testified that "the child will suffer, her emotional health will suffer." <br />
<br />
Although [Husband] repeatedly denied any involvement in his wife's murder, [Mother's] family suggested that she still may have suffered at the hands of his abuse. For example, Mrs. Angel testified she once saw bruises on Socorro. Catalina Morgan, Socorro's cousin, also claimed that she observed scratches on Socorro's neck several years before her death. Neither witness could testify as to the exact cause of the injuries, though both claimed that Socorro was afraid of her husband. In fact, Socorro specifically told Morgan that she was afraid of [Husband] hitting her. In demonstrating this fear, Morgan recounted one discussion where Socorro offered to buy an expensive necklace for Morgan's daughter. Socorro had fought with her husband over money in the past, and Socorro allegedly warned Morgan, "It's only one thing that I don't want you to say anything to nobody because I don't want him to know because we will get into a big argue [sic] again and he might hit me this time and I might left [sic]." <br />
<br />
The trial judge conducted an in camera, off-the-record interview with J.C. In open court, the trial judge stated that his decision was based on the witness testimony and his observation of the child during that session in chambers. The trial judge explicitly cited Stevens's recommendation in finding that uprooting J.C. from the [Maternal Grandparents] would cause "some emotional danger to the child" or an "immediate threat of some sort of damage." <br />
<br />
[Husband] timely filed a motion for new trial and a request for findings of fact and conclusions of law. The motion for new trial was overruled by operation of law, and findings of fact and conclusions of law were never entered. This appeal followed. <br />
<br />
CONCLUSION <br />
<br />
As nonparents seeking managing conservatorship, the [Maternal Grandparents] were required to establish by a preponderance of the evidence that the parental presumption was overcome. The [Maternal Grandparents] contend that the presumption was rebutted by implied findings that the appointment of [Husband] as managing conservator would significantly impair the emotional development of J.C., and that [Husband] had a history or pattern of physical abuse directed against his wife. We have reviewed the evidence in the light most favorable to those findings, which [Husband] has now challenged on appeal. After indulging every reasonable inference in the record that would support the findings, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not, we conclude that the record is without any evidence sufficient to overcome the parental presumption. Therefore, the trial court abused its discretion in naming the [Maternal Grandparents] joint managing conservators with the right to determine the primary residence of J.C. <br />
<br />
We reverse the judgment of the trial court and remand for that court to render judgment naming [Husband], as the natural parent, sole managing conservator of his daughter. The provisions of the trial court's judgment regarding S.C. should remain the same. The trial court may find it necessary to conduct further hearings on matters relating to the terms and conditions for possession of J.C. See Lewelling, 796 S.W.2d at 168-69. <br />
<br />
Click below to read the entire appellate opinion by Houston Court of Appeals Justice Tracy Christopher<br />
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OPINION BY JUSTICE TRACY CHRISTOPHER <br />
<br />
This appeal arises from a custody dispute involving J.C., now an eight-year-old girl, and S.C., her thirteen-year-old brother. Their mother, [Mother], died tragically in November 2006. Her death was ruled a homicide, and her husband, [Husband], was charged with her murder. Although the murder charge was eventually dropped, [Husband] was held in police custody following his subsequent arrest on unrelated immigration violations. <br />
<br />
During [Husband]'s period of detention, the children remained in the temporary custody of BR, their paternal grandmother, and LA and AA, their maternal grandparents [Maternal Grandparents]. The [Maternal Grandparents] petitioned for managing conservatorship in December 2006. Because of the ongoing investigations into [Husband]'s immigration status and the death of his wife, a hearing on the merits was not conducted until three years after the filing of the petition. Following the recommendation of a child psychologist, the trial court ultimately rendered judgment by separating the children in a split-custody arrangement. Regarding J.C., the [Maternal Grandparents] and [Husband] were appointed joint managing conservators, with the [Maternal Grandparents] receiving the right to determine her primary residence. As to S.C., the [Maternal Grandparents]' petition was denied and [Husband] was awarded all rights and duties as a parent. <br />
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In his sole issue on appeal, [Husband] contends the trial court abused its discretion by naming the [Maternal Grandparents] joint managing conservators of J.C. The [Maternal Grandparents] have not cross-appealed the trial court's decision regarding S.C. We reverse. <br />
<br />
BACKGROUND <br />
<br />
At the time of their mother's murder, J.C. was four years old and S.C. was eight. A temporary order was entered in March 2007, appointing Rubio and the [Maternal Grandparents] as temporary joint managing conservators of the children. The order was modified in May 2008, sometime after [Husband]'s release from police custody. Under the terms of the modified order, [Husband] was to have possession of J.C. two nights each week, with the [Maternal Grandparents] having possession at all other times. The order further stated that the [Maternal Grandparents] were to have possession of S.C. only upon S.C.'s request. In May 2009, the order was modified a second time to afford [Husband] extended periods of possession with his daughter. <br />
<br />
A hearing on the merits was conducted in December 2009. By that time, J.C. had been living with the [Maternal Grandparents] for more than two and a half years. The [Maternal Grandparents] had not seen S.C., however, since early 2007, just a few months after his mother's death. The children's psychologist, Carol Stevens, recommended that S.C. should not be ordered to stay with the [Maternal Grandparents]. According to Stevens, S.C. maintained a close relationship with his father and he feared losing [Husband] to the [Maternal Grandparents]. S.C. was particularly afraid that Mr. Angel might kill [Husband], a threat he apparently made in the presence of S.C. on the first anniversary of Socorro's death. <br />
<br />
During the hearing, Stevens also testified that J.C. should remain in the custody of her grandparents. Stevens found that J.C. had developed a separation anxiety disorder following her mother's death, and based on her professional observations, the target of J.C.'s disorder was the potential loss of her maternal grandmother. Stevens feared that uprooting J.C. from Mrs. Angel would not be in the child's best interest. Indeed, if J.C. were to be taken away from the [Maternal Grandparents], Stevens testified that "the child will suffer, her emotional health will suffer." <br />
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Although [Husband] repeatedly denied any involvement in his wife's murder, Socorro's family suggested that she still may have suffered at the hands of his abuse. For example, Mrs. Angel testified she once saw bruises on Socorro. Catalina Morgan, Socorro's cousin, also claimed that she observed scratches on Socorro's neck several years before her death. Neither witness could testify as to the exact cause of the injuries, though both claimed that Socorro was afraid of her husband. In fact, Socorro specifically told Morgan that she was afraid of [Husband] hitting her. In demonstrating this fear, Morgan recounted one discussion where Socorro offered to buy an expensive necklace for Morgan's daughter. Socorro had fought with her husband over money in the past, and Socorro allegedly warned Morgan, "It's only one thing that I don't want you to say anything to nobody because I don't want him to know because we will get into a big argue [sic] again and he might hit me this time and I might left [sic]." <br />
<br />
The trial judge conducted an in camera, off-the-record interview with J.C. In open court, the trial judge stated that his decision was based on the witness testimony and his observation of the child during that session in chambers. The trial judge explicitly cited Stevens's recommendation in finding that uprooting J.C. from the [Maternal Grandparents] would cause "some emotional danger to the child" or an "immediate threat of some sort of damage." <br />
<br />
[Husband] timely filed a motion for new trial and a request for findings of fact and conclusions of law. The motion for new trial was overruled by operation of law, and findings of fact and conclusions of law were never entered. This appeal followed. <br />
<br />
STANDARD OF REVIEW <br />
<br />
The trial court is afforded broad discretion in deciding the conservatorship of a child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We review its judgment for an abuse of that discretion. In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no pet.). In light of this standard, the [Maternal Grandparents] assert that we should affirm the judgment summarily on procedural grounds. They allege that [Husband] ordered an incomplete record on appeal, and therefore, they believe that we must dispose of this case under the presumption that "the omitted portions of the record are relevant and support the trial court's judgment." Mason v. Our Lady Star of Sea Catholic Church, 154 S.W.3d 816, 819 (Tex. App.-Houston [14th Dist.] 2005, no pet.). <br />
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The "omitted portions" to which the [Maternal Grandparents] refer are transcripts of earlier proceedings on the temporary orders. Copies of these transcripts were never admitted into evidence during the trial on the merits. Nevertheless, the trial court granted the [Maternal Grandparents]' request to take judicial notice of the proceedings, and thus, the [Maternal Grandparents] contend the trial court relied on testimony from those proceedings in reaching its final decision. <br />
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Contrary to the [Maternal Grandparents]' assertion, the trial court may not judicially notice any testimony from a prior hearing on a temporary order unless such testimony is properly admitted into evidence. See May v. May, 829 S.W.2d 373, 376 (Tex. App.-Corpus Christi 1992, writ denied); Malekzadeh v. Malekzadeh, Nos. 14-05-00113-CV & 14-06-00341-CV, 2007 WL 1892233, at *12 (Tex. App.-Houston [14th Dist.] July 3, 2007) (mem. op.); see also Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.-Houston [14th Dist.] 2011, no pet.) ("In order for testimony from a prior hearing or trial to be considered in a subsequent proceeding, the transcript of that testimony must be properly authenticated and entered into evidence."). Any judicial notice that the trial court took regarding the prior hearings in this case was therefore improper. See Guyton, 332 S.W.3d at 693. Accordingly, we do not consider the transcripts of the prior hearings "omitted" from the record as they were never included among the evidence actually admitted. <br />
<br />
The appellate record before us consists of the underlying clerk's record and the reporter's record of the trial on the merits. We have determined that the appellate record is complete, and we therefore examine the trial court's decision under the only applicable standard of review: abuse of discretion. <br />
<br />
The trial court abuses its discretion when its decision is arbitrary, unreasonable, or without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Under this standard, issues relating to the legal and factual sufficiency of the evidence are not independent grounds of error, but only factors used in assessing whether the trial court abused its discretion. In re R.T.K., 324 S.W.3d 896, 899-900 (Tex. App.-Houston [14th Dist.] 2010, pet. denied). The trial court does not abuse its discretion so long as the record contains some evidence of substantive and probative character to support its decision. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.-Houston [14th Dist.] 2007, pet. denied). <br />
<br />
In this case, the trial court did not enter findings of fact and conclusions of law. Comments made by the trial court during rendition are no substitute for these findings, and we may not consider them as such. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984) (per curiam); Huang v. Don McGill Toyota, Inc., 209 S.W.3d 674, 679 (Tex. App.-Houston [14th Dist.] 2006, no pet.). In the absence of written findings, we imply that the trial court made all necessary findings and we will uphold the judgment on any legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Chenault v. Banks, 296 S.W.3d 186, 189 (Tex. App.-Houston [14th Dist.] 2009, no pet.). <br />
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Moreover, under binding precedent, the failure to make a transcript of J.C.'s in camera interview does not make the record incomplete, and thus, we do not presume that any facts arose during the interview in support of the trial court's judgment. Forbes v. Wettman, 598 S.W.2d 231, 232 (Tex. 1980). <br />
<br />
CONSERVATORSHIP OF THE CHILD <br />
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In his only issue on appeal, [Husband] argues that the trial court abused its discretion by appointing the [Maternal Grandparents] joint managing conservators with the right to determine the primary residence of J.C. <br />
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In any case involving an issue of conservatorship, the best interest of the child must always be the primary consideration of the trial court. Tex. Fam. Code Ann. § 153.002 (West 2008). Under Section 153.131, which codifies the common law's "parental presumption," the court must presume that the best interest of the child is served by appointing a parent as sole managing conservator or both parents as joint managing conservators. See id. § 153.131(a); see also In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963); Legate v. Legate, 28 S.W. 281, 282 (Tex. 1894). Nonparents carry a "heavy burden" of overcoming this presumption. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child. Id. Instead, the parental presumption may only be rebutted with proof of certain findings prescribed by statute. <br />
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A nonparent may rebut the presumption if evidence is produced showing that appointment of the parent as managing conservator would "significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. § 153.131(a); see R.T.K., 324 S.W.3d at 902-03. A nonparent may also overcome the presumption by producing evidence of "a history or pattern of past . . . physical . . . abuse by [a] parent directed against the other parent, a spouse, or a child." Tex. Fam. Code Ann. § 153.004(b). In disputes between a parent and a nonparent, the legislature has mandated that "close calls" should be decided in favor of the parent. Lewelling, 796 S.W.2d at 168. <br />
<br />
In naming the grandparents joint managing conservators of J.C., the trial court determined that the [Maternal Grandparents] had overcome the parental presumption. The court, however, did not specify the basis for that rebuttal with written findings of fact and conclusions of law. Without findings, the [Maternal Grandparents] argue that the judgment can be supported on either of two legal theories. First, they contend the evidence establishes that the appointment of [Husband] as sole managing conservator would significantly impair the emotional development of J.C. In the alternative, they contend the evidence shows that [Husband] committed acts of domestic violence against his deceased wife. The parental presumption would be rebutted under either scenario, and according to the [Maternal Grandparents], the evidence would further demonstrate that the best interest of the child is served by not uprooting her from her home of the past two and a half years. We find both arguments unsupported by the record. <br />
<br />
Significant Impairment of Emotional Development Under Section 153.131(a) <br />
<br />
Carol Stevens supplied the only testimony regarding J.C.'s emotional development and the impairment it would suffer based on a determination of conservatorship. As J.C.'s psychologist of nearly two years, Stevens testified that the child's "emotional health will suffer" if she were taken away from the care of her maternal grandparents. Stevens explained that removing J.C. from the [Maternal Grandparents] "would increase her issues with her separation anxiety even more." However, Stevens did not describe how, or even if, the child would suffer any impairment that could be characterized as "significant." Stevens merely cited the child's "strong connection" to her maternal grandmother as proof that the child's emotional health would suffer to some unspecified degree. In announcing its decision to appoint the [Maternal Grandparents] and [Husband] as joint managing conservators, the trial court stated that "there would be some emotional danger to the child or I think immediate threat of some sort of damage" if custody were stripped from the grandparents. <br />
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As a reviewing court, we may consider concepts of psychological parenting, bonding, and the depth of attachments to parental figures in the context of the evidence presented. See In re De La Pena, 999 S.W.2d 521, 529 (Tex. App.-El Paso 1999, no pet.). We recognize that safety, security, and stability are factors critical to child welfare, and depending on the circumstances of each case, the danger from uprooting a child may rise to the level of significantly impairing the child's emotional development. Id. Significant impairment has been inferred from uprooting a child from a nonparental caretaker when the removal would be "devastating" or akin to "psychological amputation" or cause "serious psychological damage." See In re Rodriguez, 940 S.W.2d 265, 273 (Tex. App.-San Antonio 1997, writ denied). But no such testimony was produced in this case. <br />
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Although the record contains some testimony that uprooting J.C. from the [Maternal Grandparents] would exacerbate her separation anxiety and be harmful to her sense of loss, in no way does the evidence establish that such harm would cause a significant impairment to her emotional development. The evidence also fails to establish that any of the child's visits with her father resulted in disruptive or uncharacteristic behavior, or that she suffered any sort of impairment because of her time away from her grandparents. See De La Pena, 999 S.W.2d at 533; see also R.T.K., 324 S.W.3d at 902-03 (examining the effect of an appointment on the child's physical health or emotional development). On the facts of this case, the evidence is insufficient to rebut the parental presumption under Section 153.131(a). See De la Pena, 999 S.W.2d at 532. <br />
<br />
At best, when considering Stevens's testimony, the only evidence in favor of appointing the [Maternal Grandparents] as joint managing conservators is the longevity of J.C.'s stay with them. Though her current placement with the [Maternal Grandparents] has been successful in some respects, the evidence does not show that the child's physical health or emotional development would be significantly impaired were she to live with her father and brother. <br />
<br />
Domestic Violence Under Section 153.004(b) <br />
<br />
The Family Code establishes a "rebuttable presumption that the appointment of a parent as the sole managing conservator . . . is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by [a] parent directed against the other parent, a spouse, or a child." Tex. Fam. Code Ann. § 153.004(b). Notwithstanding the evidence regarding the child's emotional impairment, the [Maternal Grandparents] argue that the trial court's judgment can be supported by an implied finding that [Husband] was physically abusive towards his wife. We disagree. <br />
<br />
Mrs. Angel testified that she once observed bruises on Socorro. Catalina Morgan, Socorro's cousin, testified that she also saw scratches on Socorro's neck. Morgan further testified that Socorro expressed a fear that [Husband] "might" hit her if she purchased an expensive necklace. Morgan did not supply any context or detail for this statement. There is no testimony that anyone saw [Husband] hit his wife, nor is there testimony that Socorro ever complained of physical abuse in the past. Likewise, the record contains no evidence that any of the bruising or scratching was attributable to [Husband]. Although the record reveals that Socorro once feared that [Husband] would hit her, evidence of fear, without more, is insufficient to support a finding that a person has a history or pattern of direct physical abuse. See id.; Baltzer v. Medina, 240 S.W.3d 469, 474-75 (Tex. App.-Houston [14th Dist.] 2007, no pet.). <br />
<br />
CONCLUSION <br />
<br />
As nonparents seeking managing conservatorship, the [Maternal Grandparents] were required to establish by a preponderance of the evidence that the parental presumption was overcome. The [Maternal Grandparents] contend that the presumption was rebutted by implied findings that the appointment of [Husband] as managing conservator would significantly impair the emotional development of J.C., and that [Husband] had a history or pattern of physical abuse directed against his wife. We have reviewed the evidence in the light most favorable to those findings, which [Husband] has now challenged on appeal. After indulging every reasonable inference in the record that would support the findings, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not, we conclude that the record is without any evidence sufficient to overcome the parental presumption. Therefore, the trial court abused its discretion in naming the [Maternal Grandparents] joint managing conservators with the right to determine the primary residence of J.C. <br />
<br />
We reverse the judgment of the trial court and remand for that court to render judgment naming [Husband], as the natural parent, sole managing conservator of his daughter. The provisions of the trial court's judgment regarding S.C. should remain the same. The trial court may find it necessary to conduct further hearings on matters relating to the terms and conditions for possession of J.C. See Lewelling, 796 S.W.2d at 168-69. <br />
<br />
In Interest of J.C. and S.C., Minor Children, No. 14-10-00262-CV (Tex.App.- Houston [14th Dist.] July 19, 2011) (names have been replaced with initials or descriptive terms in brackets) <br />
GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com2tag:blogger.com,1999:blog-2786060346148331828.post-306156678428163342009-10-06T10:06:00.000-07:002009-10-06T10:27:03.011-07:00Appointment of Grandparents as Possessory Conservators Undone on Appeal<span style="color:#000099;"><strong></strong></span><br /><span style="color:#000099;"><strong>Austin Court of Appeals reverses order granting grandparents visitation rights to grandchildren after death of their son, the father of the children. Mother's right to be free from interference vindicated where mother was a fit parent and where circumstances of the children weren't such as to provide standing to paternal grandparents to sue for conservatorship.</strong></span><br /><br /><span style="font-size:130%;color:#990000;">M E M O R A N D U M O P I N I O N</span><br /><br />Appellees Larry and Maggie Svoboda filed a petition for grandparent possession and access and sought to be named managing conservators of L.R.S., L.K.S., and C.T.S., the children of their son Kevin Svoboda, who is deceased, and appellant Rebecca Svoboda.<br /><br />The trial court ordered that Larry and Maggie be awarded possession of the children for specified periods during the Christmas, spring break, and summer holidays and appointed Larry and Maggie as possessory conservators of the children "during their court-ordered periods of possession." Rebecca appeals, arguing that the trial court abused its discretion in naming Larry and Maggie possessory conservators and in granting Larry and Maggie's petition for grandparent access.<br /><br />We reverse and dismiss in part and reverse and render in part.<br /><br /><span style="color:#990000;">BACKGROUND</span><br /><br />Kevin and Rebecca were married in 1990. During their marriage, they had three children, L.R.S., L.K.S., and C.T.S. At the time of Kevin's death in 2007, the children were aged eight, five, and three. On July 21, 2008, Kevin's parents, Larry and Maggie, filed their original petition seeking to be named sole managing conservators of the children based on their belief that Rebecca's care of the children subjected them to an environment that presented a serious risk to their physical health and emotional well-being. In the alternative, Larry and Maggie sought grandparent access for visitation, arguing that denying them access to the children would significantly impair the children's physical health and emotional well-being.<br /><br />The trial court held a hearing on February 25, 2009. During the first part of the hearing, the trial court heard testimony concerning the issue of Larry and Maggie's standing to bring an original suit to be named managing conservators of the children. See Tex. Fam. Code Ann. § 102.004(a)(1) (providing that grandparents may file original suit requesting managing conservatorship if they produce satisfactory proof that order requested is necessary because child's present circumstances would significantly impair child's physical health or emotional development).<br /><br />Maggie testified that although she and her husband live in North Dakota, a great distance from Rebecca and her children in Mills County, they had always been involved in the children's lives and had a close relationship with them.<a href="mhtml:file://C:/Users/Meister/Documents/03-09-00189-CV-grandparent-access-suit-one-parent-deceased.mht!x-usc:http://www.3rdcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=18542#N_2_"> </a><br /><br />She stated that she and Larry made frequent visits to Texas to help Kevin and Rebecca when they were moving and making home repairs, particularly after Kevin was diagnosed with cancer, and that they helped Rebecca financially after Kevin died. Maggie testified that she believed she was being forced out of the children's lives in a way that was damaging to the children and that preventing her from having access to the children would impair their emotional and physical development.<br /><br />She further testified that she had concerns about L.R.S. regarding a possible but unsubstantiated incident of sexual abuse by a male child at her daycare. Maggie stated that she had been given no information regarding the incident, but she worried that the environment L.R.S. is in may be dangerous because L.R.S. might not be receiving counseling and might "never be mentally coping in the world."<br /><br />She explained that she had no way of knowing whether L.R.S. was receiving the therapy she needed. She further stated that Rebecca had cut off her home telephone line and did not stay in frequent contact with her and Larry.<br /><br />Asked about the event that precipitated their filing the petition for conservatorship, Maggie explained that in March 2008 she and Larry traveled to Texas and attempted to see the children. She recounted that Rebecca refused to let them see the children unless they signed "a paper" stating that they agreed not to medicate the children or remove them from Brown or Mills County. Maggie testified that she did not sign the paper because Rebecca's own parents had not been required to do so and because she felt that, by signing it, she would be admitting guilt for having overmedicated the children in the past.<br /><br />Maggie also testified about the children's performance in school. She stated that she believed L.R.S. had been diagnosed with dyslexia and that both L.R.S. and L.K.S. had been held back a year in school. Asked whether she thought not passing in school reflected something about their environment that may be endangering the children's emotional and physical development, Maggie answered:<br /><br />Yes, I do. I don't believe they are getting the rest they should have. They have to get up way too early in the morning. They don't get their rest or the time to do the schoolwork that they need to do. [L.R.S.] has all of these chores that she has to do when she gets home and chores before she goes to school. And they have to get up at 5:00 in the morning in order--they had to get up at 5:00 in the morning in order for [Rebecca] to be at work at 8:00.<br /><br />She stated that the children's teeth were not well taken care of and that often they did not have toothbrushes or they had to share toothbrushes. Finally, Maggie discussed the emotional support that she and her family would offer the children to help them deal with their father's death, noting that Rebecca did not want her or Larry to speak to the children about their father because she felt that it would upset them too much.<br /><br />Larry testified, in very general terms, that he believed depriving the children of a relationship with him and Maggie would significantly impair the children's emotional and physical well-being. Larry and Maggie's son Shelley and daughter Petrina also testified, stating that Larry and Maggie had been an important part of the children's lives. They testified, also in very general terms, that they believed it would significantly impair the children's emotional well-being to deny them time with their paternal grandparents. On cross-examination, both Shelly and Petrina testified that Rebecca had never denied them access to the children and that they had always had a fairly good relationship with Rebecca.<br /><br />At the close of this testimony, the trial court ruled on the standing issue, finding that Larry and Maggie had met the standing requirements of the Texas Family Code because they had shown by a preponderance of the evidence that denial of possession or access to the children would significantly impair the children's emotional well-being. The court further found, however, that there was no evidence that Rebecca was unfit as a mother or that the children were in any physical danger.<br /><br />During the second portion of the hearing, the trial court heard evidence on the issues of conservatorship and possession. Rebecca testified extensively concerning her strained relationship with her in-laws, particularly Maggie, and about her efforts to ensure that Larry and Maggie's visits with her children conformed with how she and Kevin wished to raise their children.<br /><br />She also discussed how the parties had struggled to agree to a visitation schedule after Kevin passed away and that she repeatedly avoided Larry and Maggie's requests to have the children visit them in North Dakota because she felt the children were not old enough to travel that far by themselves. Rebecca also described her version of the events that led to Larry and Maggie's filing their petition for conservatorship and access. She said that Larry and Maggie had traveled to Texas in March to see the children and a dispute arose when they refused Rebecca's request that they agree in writing to certain conditions that she and the family's grief counselor had determined were necessary for appropriate visitation to occur. The two subsequent visits were supervised at the Family Services Center. Larry and Maggie both acknowledged on cross-examination that unsupervised visits would have been possible if they had agreed to the guidelines that Rebecca had requested.<br /><br />Rebecca also responded to Maggie's testimony that the children were performing poorly in school. She stated that L.R.S. had attention-deficit disorder, not dyslexia; that none of her children had been held back in school; and that all of the children had satisfactory report cards and were performing at or above their grade level. Rebecca further testified that she and her children were very involved in their church, had an "amazing" support system, and met weekly with a counselor for several months after Kevin passed away. Rebecca stated that the children had all been released from the counselor's care because of their progress. She testified that although she wanted her children to have a relationship with Kevin's family, she felt that she should be able to decide what visitation would be appropriate and what boundaries should be set. Rebecca acknowledged that although she had disconnected the telephone line at her house, Maggie and Larry could still contact her by e-mail and reach her and the children on her cell phone.<br /><br />After both sides rested, the trial court ruled on the conservatorship issue. The court named Rebecca sole managing conservator and named Larry and Maggie possessory conservators during the times of their possession, beginning with a three-day visitation during the 2008 Christmas holiday. The court ordered that Larry and Maggie be granted all the privileges and powers of possessory conservators under the family code during their periods of possession, with the caveat that they could not give the children any medication without Rebecca's prior approval, except in an emergency.<br /><br />This ruling was memorialized in the court's final written order, which granted Larry and Maggie possession of the children during each Christmas and spring break and for two weeks during the summer, as well as access through monthly telephone calls during every month in which no periods of possession were ordered. Rebecca appeals, arguing that the trial court erred in (1) naming Larry and Maggie possessory conservators, (2) determining that Larry and Maggie had standing to bring suit for conservatorship, (3) awarding Larry and Maggie court-ordered periods of possession and access, and (4) finding that Rebecca was a fit parent but then failing to apply the presumption that a fit parent acts in her child's best interest.<br /><br />[section on applicable <a href="http://grandparents-and-the-law.blogspot.com/2009/10/grandparent-standing-possession-access.html">standard of review in appeal from grandparent custody, visitation and access decisions </a>omitted]<br /><br /><span style="color:#990000;">DISCUSSION</span><br /><br />In her first and second issues, Rebecca argues that Larry and Maggie lacked standing "to sue for custody--i.e., sole managing conservatorship, joint managing conservatorship, or possessory conservatorship," and that the trial court therefore erred in naming Larry and Maggie possessory conservators. Larry and Maggie sought by their original petition to be named sole managing conservators of the children. The trial court, after hearing the testimony of Larry and Maggie and their children, Shelley and Petrina, found that "the grandparents have shown and established by the preponderance of the evidence that that denial of possession or access to their grandchildren would significantly impair the grandchildren's emotional well-being." Accordingly, the court determined that Larry and Maggie had standing to file an original petition seeking managing conservatorship.<br /><br />As an initial matter, we note that the trial judge's oral findings and written order both reflect that he ruled on the standing question under section 153.433 of the family code. Section 153.433, as will be discussed in connection with Rebecca's remaining issues on appeal, governs the circumstances under which grandparents may seek possession of or access to their grandchild contrary to the parent's wishes. See Tex. Fam. Code Ann. § 153.433 (requiring, among other elements, that grandparent prove by preponderance of evidence that denial of possession of or access to child would significantly impair child's physical health or emotional well-being).<br /><br />A grandparent's standing to bring an original suit affecting the parent-child relationship, on the other hand, is governed by section 102.004(a) of the family code, which requires that the petitioner present satisfactory proof that "the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development." Id. § 102.004(a)(1).<br /><br />Nonetheless, because it is clear from the context that the trial judge intended to make the requisite finding related to the standing issue, we will also treat the trial court's finding as one made under section 102.004--i.e., that Larry and Maggie had standing to bring the conservatorship suit because the children's present circumstances would significantly impair their emotional development. See id. § 102.004(a)(1).<br /><br />We disagree with the trial court, however, that the evidence supports Larry and Maggie's standing to file an original suit seeking conservatorship of the children.<br /><br />"[A] grandparent has standing to bring a suit affecting the parent-child relationship only in certain extreme circumstances." Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App.--San Antonio 1990, writ denied). The legislature, recognizing the potential for disruption posed by the filing of an original suit for conservatorship, set a high burden for petitioners to meet in grandparent-initiated suits. See, e.g., Whitworth v. Whitworth, 222 S.W.3d 616, 622 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (noting that "the statutory scheme assures that grandparents are not entitled to disrupt the child's family life and initiate suits for managing conservatorship except in limited circumstances); Harrison v. Harrison, 734 S.W.2d 737, 740-41 (Tex. App.--Eastland 1987, no writ) ("There is a significant difference between filing an original proceeding which could disrupt the children's relationship with their parents and intervening in a pending suit in which that relationship had been sufficiently interrupted to cause the filing of a suit requiring the courts to decide what decree would be in the children's best interest.").<br /><br />In determining standing, we examine the children's "present circumstances" as of July 21, 2008, the date Larry and Maggie filed their petition. See In re Vogel, 261 S.W.3d 917, 922 (Tex. App.--Houston [14th Dist.] 2008, no pet.) (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex. 1993)).<br /><br />The trial court found that the children were not subject to any physical harm, and Larry and Maggie do not contest this finding. As to the children's emotional development, the record does not contain more than a scintilla of evidence that the children risked significantly impaired emotional development in their present circumstances. The children's "present circumstances" entailed residing with their mother, whom the trial court determined to be a loving and "fit" mother, and having limited contact with their paternal grandparents.<br /><br />Although Larry and Maggie testified that they believed it was in the children's best interest for them to have contact with their late father's family and that depriving the children of a relationship with their paternal grandparents would be harmful to the children's emotional well-being, the record establishes that the children were not completely deprived of contact with their father's family. On the contrary, Maggie testified that she had access to the children by phone--including Rebecca's cell phone--and that, even after the dispute in March 2008, she and Larry were permitted to have supervised visitation with the children at the Family Services Center. Furthermore, Maggie acknowledged that if she had agreed to the conditions Rebecca sought to impose on her behavior, she would have been allowed unsupervised visitation. Shelley and Petrina, the children's paternal uncle and aunt, also testified that they had never been denied possession of or access to the children.<br /><br />In addition, Maggie's statements that she was concerned whether the children, L.R.S. in particular, were receiving appropriate counseling and whether they were coping with their father's death are not evidence that the children's present circumstances posed a significant threat to their emotional development. Mere speculation that the children's emotional well-being might be at risk is not sufficient proof to confer standing under section 102.004(a). See Von Behren, 800 S.W.2d at 922-23 (grandmother's allegation that grandchild might have been sexually abused by her father was insufficient to confer standing).<br /><br />On this record, we conclude that the trial court erred in determining that the children's present circumstances posed a significant danger to their emotional development. Compare In re M.J.G., 248 S.W.3d 753, 760 (Tex. App.--Fort Worth 2008, no pet.) (evidence of grandparents' significant relationship with grandchildren did not support standing under section 102.004(a) in light of absence of testimony that children's mother did not also perform parenting duties or that grandparent-grandchild relationship was so essential to children's well-being that they would be physically or emotionally harmed if they did not live with grandparents), with Vogel, 261 S.W.3d at 922 (grandparent had standing based on testimony that child's father was long-term alcoholic who could not financially provide for child's needs and that it would be "harmful" for child to live with his father), and In re R.D.Y., 51 S.W.3d 314, 318-19, 325 (Tex. App.--Houston [1st Dist.] 2001, pet. denied) (grandmother had standing under section 102.004 when record showed that mother physically abused child, was homeless and unemployed, did not feed or bathe child, and was involuntarily committed to psychiatric treatment facility). Accordingly, we hold that Larry and Maggie lacked standing to bring their original petition seeking to be named managing conservators of the children and that the trial court erred in naming Larry and Maggie possessory conservators.<br /><br />We sustain Rebecca's first and second issues.<br /><br /><span style="color:#000099;">[See section discussing and reversing </span><a href="http://grandparents-and-the-law.blogspot.com/2009/10/fit-surving-mother-precludes-paternal.html"><span style="color:#000099;">grant of access rights to paternal grandparents </span></a><span style="color:#000099;">in separate blog post]<br /></span><br /><span style="color:#990000;">CONCLUSION</span><br /><br />Having determined that Larry and Maggie lacked standing to file an original petition for conservatorship, we reverse the portion of the trial court's order naming them possessory conservators of the children and dismiss their petition for conservatorship for lack of jurisdiction. Further, because the trial court abused its discretion in awarding Larry and Maggie possession of and access to the children, we reverse the remainder of the trial court's order and render judgment denying their petition for possession and access.<br /><br />J. Woodfin Jones, Chief Justice<br /><br />Filed: October 1, 2009<br /><br /><span style="font-size:85%;">SOURCE: Austin Court of Appeals' opinion in Cause No. 03-09-00189-CV (10/1/09) [footnotes omitted] </span>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-48372581769847793272009-10-05T21:13:00.001-07:002009-10-05T21:20:15.195-07:00Grandparent standing, possession & access decisions on appeal: Standard of Review<span style="color:#000099;"><strong></strong></span><br /><strong><span style="color:#000099;">WHAT ARE THE APPELLATE COURTS' STANDARDS OF REVIEW WHEN GRANDPARENT RIGHTS ISSUES ARE APPEALED?</span></strong><br /><br />Whether a party has standing to bring suit is a legal question that we review de novo. See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In Texas, standing in the context of a suit affecting the parent-child relationship is governed by the family code; a party seeking relief in such a suit must plead and establish standing within the parameters of the language used in the code. See Tex. Fam. Code Ann. §§ 102.003-.007 (West 2008).<br /><br />[The Court of Appeals reviews] the trial court's determination of a party's standing to file a suit affecting the parent-child relationship by construing the pleadings in favor of the petitioner and looking to the pleader's intent. In re M.J.G., 248 S.W.3d 753, 757 (Tex. App.--Fort Worth 2008, no pet.); In re SSJ-J, 153 S.W.3d 132, 134 (Tex. App.--San Antonio 2004, no pet.).<br /><br />[The Court of Appeals applies] an abuse-of-discretion standard in reviewing a trial court's determination of grandparent access or possession under section 153.433 of the family code. In re J.P.C., 261 S.W.3d 334, 335-36 (Tex. App.--Fort Worth 2008, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles. In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.--Austin 2005, pet. denied).<br /><br />A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). Therefore, a trial court abuses its discretion when it grants access to a grandparent who fails to meet the statutory requirements of section 153.433. J.P.C., 261 S.W.3d at 336.<br /><br />SOURCE: Austin Court of Appeals' opinion in Cause No. 03-09-00189-CV (10/1/09)GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-40140244836632115542009-10-05T20:40:00.000-07:002009-10-06T21:39:14.095-07:00Fit surviving mother precludes paternal grandparents' access suit after children's father's death<strong><span style="color: rgb(0, 0, 153);"></span></strong><br /><strong><span style="color: rgb(0, 0, 153);">In an appeal from a successful grandparent suit brought by the children's surviving mother, the Austin Court of Appeals recently held that the parents of the children's father who had died (i.e., the paternal grandparents) had not overcome the parental presumption, and that the trial court erred in granting them visitation rights. Because no evidence showed that the children's mother was not a fit parent, the court, in an opinion written by its Chief Justice, determined that the mother had the right to decide the nature and amount of contact the children would have with the grandparents. The opinion explains the high standard that applies when grandparents seek the court's help in their efforts to maintain a relationship with their grandchildren over t</span></strong><strong><span style="color: rgb(0, 0, 153);">heir parents' objection. </span></strong><br /><br /><br /><strong><span style="color: rgb(102, 0, 0);">FROM THE OPINION:</span></strong><br /><br />In her remaining issues Rebecca [Mother] argues that the trial court erred in granting Larry and Maggie [paternal grandparents] possession of and access to the children.<br /><br />Possession of or access to a child by a grandparent is governed by the standards set forth in chapter 153 of the Texas Family Code. Tex. Fam. Code Ann. § 102.004(c) (West 2008); In re Chambless, 257 S.W.3d 698, 700 (Tex. 2008). The specific statute applicable to this appeal is section 153.433. The legislature amended section 153.433 in 2005 in an effort to bring the Texas statute into compliance with the U.S. Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion). See In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007).<br /><br />The Supreme Court held in Troxel that parents enjoy a fundamental right to make decisions concerning "the care, custody, and control of their children," and that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family." 530 U.S. at 65, 68.<br /><br />In light of Troxel, family code section 153.433 now requires that a grandparent seeking court-ordered possession or access overcome the presumption that a parent acts in his or her child's best interest, meaning that the grandparent must prove by a preponderance of the evidence that denial of access to the child would significantly impair the child's physical health or emotional well-being. Tex. Fam. Code Ann. § 153.433(2); Derzapf, 219 S.W.3d at 333.<br /><br />"This high threshold exists so that a court will refrain from interfering with child-rearing decisions made by a parent simply because the court believes that a 'better decision' could have been made." J.P.C., 261 S.W.3d at 337.<br /><br />Under the statute, a trial court must presume that a fit parent acts in his or her child's best interest, and the court abuses its discretion if it grants access to a grandparent who has not met this standard. Derzapf, 219 S.W.3d at 333.<br /><br />The Texas Supreme Court has interpreted Troxel to mean that when there is no evidence that (1) the child's parent is unfit; (2) the child's health or emotional well-being would suffer if the court defers to her decisions; and (3) the parent intended to exclude the grandparent's access completely, a trial court abuses its discretion by granting grandparent access against the parent's wishes. See In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (per curiam).<br /><br />Rebecca argues on appeal that the Mays-Hooper analysis applies in this case, that Larry and Maggie failed to overcome the presumption that she acted in the children's best interest, and that the trial court's order granting Larry and Maggie possession and access was therefore an abuse of discretion. We agree. As discussed in connection with Rebecca's first two issues, the record establishes that Rebecca is a fit parent, as the trial court expressly found, and that she did not intend to exclude Larry and Maggie's access to the children completely.<br /><br />Moreover, there is no support for the claim that the children's physical health or emotional well-being would be significantly impaired if the court deferred to Rebecca's decision to impose certain limitations on Larry and Maggie's visitation. There is simply no evidence that the visitation and phone access Larry and Maggie had prior to filing their petition--while less frequent and more restricted than they would have liked--was harming the children. Cf. J.P.C., 261 S.W.3d at 339 (grandparents' opinion that regular, unsupervised visits would be better and that it would be impossible to establish regular visits without court order "are only reflections of the grandparents' fears and speculations and do not support the trial court's finding that the grandparents overcame the statutory presumption").<br /><br />As a fit parent, Rebecca is entitled to ask that Larry and Maggie comply with her wishes regarding medication, appropriate toys and movies, and conversation about the children's father that she deems acceptable.<br /><br />The mere opinion of the grandparents themselves as interested, nonexpert witnesses that they should be granted access does not overcome the statutory presumption imposed by section 153.433, nor does it support the court's interference with a parent's rights. Id. at 340. We therefore hold that the trial court abused its discretion in ordering that Larry and Maggie be awarded possession and access. We sustain Rebecca's remaining issues.<br /><br /><span style="color: rgb(102, 0, 0);">CONCLUSION<br /></span><br />Having determined that Larry and Maggie lacked standing to file an original petition for conservatorship, we reverse the portion of the trial court's order naming them possessory conservators of the children and dismiss their petition for conservatorship for lack of jurisdiction. Further, because the trial court abused its discretion in awarding Larry and Maggie possession of and access to the children, we reverse the remainder of the trial court's order and render judgment denying their petition for possession and access.<br /><br />J. Woodfin Jones, Chief Justice<br /><br />SOURCE: Third Court of Appeals' decision in Cause No. 03-0<a name="1">9</a>-00<a name="2">189</a>-CV (10/1/09)GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com1tag:blogger.com,1999:blog-2786060346148331828.post-36263812491683842802009-09-30T20:53:00.000-07:002009-09-30T21:23:54.992-07:00Judges at odds over nonbiological "de facto" parent's standing to assert custody and visitation claims<strong><span style="color:#000099;"></span></strong><br /><strong><span style="color:#000099;">Judges do not see eye to eye when it comes to whether individuals who have assumed the role of a parent for a child that is not theirs can satisfy the standing requirement of the Texas Family Code, and qualify to be appointed possessory or managing conservators of the child. </span></strong><br /><strong><span style="color:#000099;"></span></strong><br /><strong><span style="color:#000099;">The diversity of viewpoints is illustrated by the opinions written by Justices of the Beaumont Court of Appeals in a recent </span></strong><strong><span style="color:#000099;">case in which the Mother wanted her former partner out of the picture after termination of the relationship. </span></strong><br /><br /><strong><span style="color:#000099;">The </span></strong><strong><span style="color:#000099;">majority disagreed with the resolution of the issue in the court below and <a href="http://grandparents-and-the-law.blogspot.com/2009/09/can-live-in-boyfriend-claim-sapcr.html">set aside the trial court judge's order appointing mother and her former live-in partner as joint managing conservators of the child they had been raising together</a>. The Chief Justice, however, would have left the trial court's ruling undisturbed, and explained why in his dissent, the text of which is reproduced below. </span></strong><br /><br /><span style="color:#993300;">DISSENTING OPINION BY CHIEF JUSTICE McKEITHEN</span><br /><br />There is no dispute concerning the facts of this case. A man not biologically related to the child lived with and raised the child with the child's mother, from infancy to the child's grade-school years. The record shows the man nurtured, disciplined and financially supported the child.<br /><br />The man lived with the child and the child's mother as a continuous and permanent family unit for a period of time far exceeding six months. He filed a suit affecting the parent-child relationship (SAPCR) within ninety days of separating from the child's mother.<br /><br />The trial court found a sufficient factual basis to support the man's claim that he had "actual care, control, and possession" of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition. See Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008).<br /><br />The record supports that finding, yet the majority holds that this man has no standing to file a SAPCR pursuant to Section 102.003(a)(9) of the Texas Family Code because there has been no showing that the mother of the child "relinquished" the actual care, control, and possession of the child, or in some other way "abdicated" her parental responsibilities.<br /><br />Family units ideally have two partners who share child-rearing responsibilities. Nothing in the plain language of Section 102.003(a)(9) excludes a person who shares the role of a parent with the biological parent from having standing as a person with "actual care, control, and possession" of the child. See id.<br /><br />Nothing in the plain language of the statute necessitates the "relinquishment" or "abdication" by the biological parent of her parental rights, duties or responsibilities. There is no exclusivity requirement in the statute's plain language. See id.<br /><br />There is, however, a rational basis for conferring standing on a person who shares actual care, control, and possession of a child with that child's parent for a period in excess of six months.<br /><br />I do not believe a statute that merely confers standing on such a person is an unconstitutional infringement on the liberty interest of the parent who voluntarily shared care, control, and possession of the child for a period exceeding six months.<br /><br />Because I cannot agree with the majority's interpretation of this statute, I respectfully dissent.<br /><br />______________________________<br />STEVE McKEITHEN<br /><br />Chief JusticeDissent Delivered<br />July 16, 2009<br /><br /><a href="http://www.texas-opinions.com/files/09-09-00131-CV-Nonparent-custody-order-set-aside-by-mandamus-opinion-with-dissent.html">In Re KKC</a> (<a href="http://www.9thcoa.courts.state.tx.us/opinions/docket.asp?FullDate=20090716">Tex.App.- Beaumont, Jul. 16, 2009</a>)(order granting nonparent conservatorship reversed by mandamus)GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-85188162331102164802009-09-30T20:29:00.000-07:002009-09-30T21:13:45.865-07:00Can Live-In Boyfriend Claim SAPCR Standing as De Facto Parent after the Break-up?<strong><span style="color:#000099;"></span></strong><br /><strong><span style="color:#000099;">Under some circumstances <a href="http://grandparents-and-the-law.blogspot.com/2009/09/actual-care-control-and-possession-of.html">nonparents can assert standing</a> for purposes of conservatorship and visitation under the Texas Family Code. The courts are not necessarily in agreement, or predictable, when it comes to the application of the relevant statutory rules to actual situations, as seen in this recent court of appeals case, in which the majority ordered the trial court to withdraw an order granting temporary joint managing conservatorship to a man who had resided with the child's mother and helped raise the child from infancy to school age. </span></strong><br /><strong><span style="color:#000099;"></span></strong><br /><strong><span style="color:#000099;">The majority on the Beaumont Court of Appeals found lack of standing and also rejected "in loco parentis" as an alternative theory. The chief justice of the court, however, dissented, and would have upheld the <a href="http://grandparents-and-the-law.blogspot.com/2009/09/judges-disagree-whether-nonbiological.html">trial court's decision granting the non-biological father figure -along with the child's mother - temporary joint custody after their break-up based on "actual care, control, and possession" of the child by the boyfriend</a>.</span></strong><br /><br /><span style="color:#990000;"><strong>OPINION OF THE BEAUMONT COURT OF APPEALS (issued July 16, 2009) </strong></span><br /><br />Relator, the mother of the minor child L.G.C., filed a petition for writ of mandamus to compel the trial court to vacate temporary orders and to set aside any purported grant of parental rights to the real party in interest. We conditionally grant the writ.<br /><br /><strong>Procedural History</strong><br /><br />The real party in interest, who is not a parent of the child but previously resided with relator and the child, filed a suit affecting the parent-child relationship (SAPCR) requesting that he and the relator be appointed joint managing conservators of the child. The relator appeared pro se, as did the child's father, and requested time to find an attorney. She explained she could not afford an attorney at that time. The trial court suggested the parties confer. Agreed temporary orders were then signed by the parents, pro se, and by the petitioner and his attorney. The temporary orders named relator and the petitioner temporary joint managing conservators. Relator was named the primary managing conservator. The temporary orders gave the petitioner and the child's father visitation rights.<br /><br />After obtaining an attorney, relator filed motions challenging the petitioner's standing to file the suit. The trial court denied relator's challenge.<br /><br /><strong>Mandamus</strong><br /><br />An appellate court may issue a writ of mandamus to correct an abuse of discretion for which relator has no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A failure by the trial court to apply the law correctly constitutes an abuse of discretion. Id. at 840. Where the relator challenges the trial court's subject matter jurisdiction to enter a temporary order in a suit affecting the parent-child relationship, a remedy by appeal is inadequate. See Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Herring, 221 S.W.3d 729, 730 (Tex. App.--San Antonio 2007, orig. proceeding) ("Because temporary orders in suits affecting the parent-child relationship are not appealable, a petition for a writ of mandamus is an appropriate means to challenge them."). See also generally In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (Mandamus relief is appropriate to set aside temporary orders that divest, in violation of laws, a fit parent of possession of children.).<br /><br /><strong>Standing</strong><br /><br />The law of standing focuses on whether a party who has filed an action is a proper party to raise the legal issue presented for adjudication. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). Standing is a component of subject matter jurisdiction. Id. at 443; Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); Dep't of Family & Protective Servs. v. Alternatives in Motion, 210 S.W.3d 794, 799 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). A party generally cannot confer or obtain standing by consent or agreement. In re Smith, 262 S.W.3d 463, 466 (Tex. App.--Beaumont 2008, orig. proceeding).<a href="http://www.9thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=10133#N_1_"> (1)</a> Because the requirement is a component of subject matter jurisdiction, standing to file suit is not conferred or obtained by waiver, and can be challenged at any time. Tex. Ass'n of Bus., 852 S.W.2d. at 440, 445; Sarah v. Primarily Primates, Inc., 255 S.W.3d 132, 139 (Tex. App.--San Antonio 2008, pet. denied).<br /><br />In an original suit affecting the parent-child relationship in which the petitioner seeks managing conservatorship, the question of standing is a threshold issue. In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.--Dallas 2008, no pet.). A petitioner seeking managing conservatorship has the burden to prove standing. See In re Smith, 262 S.W.3d at 465; Alternatives in Motion, 210 S.W.3d at 799. The Texas Legislature has provided a comprehensive statutory framework for standing in the context of suits involving the parent-child relationship. See Tex. Fam. Code Ann. §§ 102.003, 102.0035, 102.004, 102.0045, 102.006 (Vernon 2008); In re Smith, 262 S.W.3d at 465.<br /><br />The petitioner in this case alleged standing based on his assertion that "the child has resided with him continuously for over a six month period of time." The Family Code provides standing to a person with whom the child and a parent have resided for at least six months if the "parent is deceased at the time of the filing of the petition." See Tex. Fam. Code Ann. § 102.003(a)(11) (Vernon 2008). The provision is sometimes referred to as "stepparent standing." Here, the parents are not deceased, so the subsection providing standing to someone who pleads that he has "resided" for at least six months with the parent and child is inapplicable.<br /><br />Section 102.003(a)(9) of the Texas Family Code, the provision relied on by the petitioner, provides that "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" may file an original suit requesting managing conservatorship. Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008). Petitioner did not plead that he had "actual care, control, and possession of the child." Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008). Nevertheless, if this is simply a pleading deficiency that can be corrected by amendment, he should be given that opportunity. We therefore turn to the substance of his standing argument under section 102.003(a)(9).<br /><br /><strong>The Hearing</strong><br /><br />The trial court held an evidentiary hearing on relator's challenge to petitioner's standing to file the suit. Testifying on petitioner's behalf were the petitioner, his father and mother, and his sister-in-law. Petitioner, relator, and the child lived together from 2001 until 2008. Petitioner's father testified petitioner attended school functions involving L.G.C. and was normally responsible for picking up L.G.C. at daycare. Petitioner's mother testified L.G.C. typically spent Christmases at their family home until petitioner and relator ended their relationship. Petitioner's mother also indicated she had observed petitioner give L.G.C. a bath, saw petitioner at school functions for L.G.C., observed petitioner discipline L.G.C., and heard relator ask petitioner to discipline the child. Petitioner's mother also testified he provided financial support for L.G.C. and bought school clothes for him. Petitioner's sister-in-law testified that whenever she saw petitioner, L.G.C., and relator together, petitioner normally disciplined the child. Both relator and petitioner waited on the child -- giving him food or other items. L.G.C. called relator "Mom" and petitioner "Daddy." The sister-in-law testified both parties provided financial support for L.G.C. in the last seven years and petitioner provided more discipline for L.G.C. than did relator. Both provided comfort to the child when he was hurt, and petitioner provided guidance and support to the child. Petitioner's sister-in-law indicated that he gave L.G.C. any needed medicine. When L.G.C. was in the hospital, both relator and petitioner were there. The sister-in-law also indicated she had done some of these same things for L.G.C. herself, including providing guidance and support, keeping the child, and giving him medicine as needed.<br />Petitioner is not the biological or adoptive father of L.G.C. and is not otherwise related to L.G.C. Petitioner was never married to relator, the child's mother. He maintained a separate mailing address while living with relator. The record establishes that he did not possess any documents that allowed or authorized him to make any decisions relating to school, medical treatment, establishment of residence, or any other legal matters regarding the child. He is not the child's guardian. Although petitioner testified he wanted to adopt L.G.C. and had an attorney draw up papers for that purpose, relator refused to sign any adoption papers or agree to any adoption. There is no evidence relator ever agreed to relinquish legal rights concerning the child. The evidence establishes the contrary. Relator refused to give petitioner legal rights concerning the child.<br /><br /><strong>Analysis</strong><br /><br />The interest of parents in the "care, custody, and control" of their children "is perhaps the oldest of the fundamental liberty interests" recognized by the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)).<a href="http://www.9thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=10133#N_2_"> (2)</a> Furthermore, this State has long recognized that the "natural right which exists between parents and their children is one of constitutional dimensions." See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re Pensom, 126 S.W.3d 251, 254 (Tex. App.--San Antonio 2003, orig. proceeding). Troxel involved grandparents seeking expanded visitation rights. The instant case concerns standing in an original suit affecting the parent-child relationship filed by a non-parent seeking custodial and visitation rights. As the United States Supreme Court explained in Troxel, "[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel, 530 U.S. at 68-69 (citing Reno v. Flores, 507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)).<br /><br />Texas statutes are intended by the Legislature to be in compliance with the Constitutions of this State and the United States. See Tex. Gov't Code Ann. § 311.021(1)(Vernon 2005).<a href="http://www.9thcoa.courts.state.tx.us/opinions/htmlopinion.asp?OpinionId=10133#N_3_"> (3)</a> A court construes a statute to give effect to the Legislature's intent as expressed in the actual language used in the statute. See Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000); see generally In re Pensom, 126 S.W.3d at 255-56.<br /><br />Section 102.003(a)(9), the provision petitioner relies on in his appellate brief, requires that the petitioner have "actual care, control, and possession of the child." In construing a statute, we must presume each word was used for a purpose, and give the word effect if reasonable and possible. See Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000). In this statute, "control" must mean something more than the control implicit in having care and possession of the child if the word is to be given effect and treated as more than surplusage. The word must be understood in the context of the rights, duties, and responsibilities of a parent. See generally Coons-Andersen v. Andersen, 104 S.W.3d 630, 634-36 (Tex. App.--Dallas, no pet.) ("a person who assumes the duties of a parent"). "Control" refers to the power or authority to guide and manage, and includes the authority to make decisions of legal significance for the child. See generally In re Kelso, 266 S.W.3d 586, 589-92 (Tex. App.--Fort Worth 2008, orig. proceeding) (Evidence did not show parent relinquished permanent care, control, and possession of child to grandparents.). See generally In re Narvaiz, 193 S.W.3d 695, 700 (Tex. App.--Beaumont 2006, orig. proceeding) (considering the terms "care, control and possession" in another provision of the Family Code). The statute does not require that the person asserting standing demonstrate he had exclusive control of the child. Until he obtained the temporary orders at issue here, however, petitioner had no legal right of control over the child and no authority to make decisions on behalf of the child.<br /><br />After petitioner's standing was challenged in the trial court, he did not amend his petition to allege in his pleadings that he had actual care, control, and possession of the child, though he argued the statute should be construed to grant him standing. Petitioner resided with L.G.C. and relator for more than six months as he alleged, but that fact alone is insufficient to establish standing. As the child's parent, relator had the right to have physical possession of the child and designate the child's residence. See Tex. Fam. Code Ann. § 151.001(a)(1) (Vernon 2008). Relator had the "duty of care, control, protection, and reasonable discipline of the child[.]" See id. § 151.001(a)(2) (Vernon 2008). The Texas Family Code recognizes relator had the right to make decisions of legal significance for the child, and to make decisions concerning the child's education. See id. § 151.001(a)(7), (10), (11) (Vernon 2008). Relator lived with the child, adequately cared for the child, and did not relinquish to petitioner or abdicate her parental rights, duties, and responsibilities. See In re M.J.G., 248 S.W.3d 753, 757-58 (Tex. App.--Fort Worth 2008, no pet.); see also In re Kelso, 266 S.W.3d at 590-91 (the mother controlled where the child would stay and for how long; the grandmother and step-grandfather did not have such control). We reject a construction of the statute that would expand section 102.003(a)(9) beyond the plain meaning of the terms used by the Legislature. See In re Narvaiz, 193 S.W.3d at 700.<br /><br />In M.J.G., the appellate court held that grandparents who alleged "M.J.G. had lived with them since she was born[,] with the exception of one two-week period when she stayed with her parents in another town[,]" nevertheless lacked standing under § 102.003(a)(9). See In re M.J.G., 248 S.W.3d at 757-58. Even though M.J.G. and her brother lived with the grandparents and the grandparents performed day-to-day caretaking duties for the children, the children's parents were also living with the children in the home, and there was no evidence that the parents did not care for the children or that the parents had abdicated their parental duties and responsibilities to the grandparents. See id.<br /><br />We follow the holding in M.J.G. as it appears consistent with the meaning of the language used by the Legislature in section 102.003(a)(9), the constitutional liberty interests retained by a fit parent adequately caring for her child, and also with the statutory scheme for standing set forth in the Family Code. Section 102.003(11) provides for standing in the event of the parent's death and is inapplicable here. See Tex. Fam. Code Ann. § 102.003(a)(11) (Vernon 2008) ("a person with whom the child and the child's . . . parent have resided for at least six months . . . ."). Under section 102.004(a), a person within the third degree of consanguinity would have standing if "the child's present circumstances would significantly impair the child's physical health or emotional development; or . . . both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit." See Tex. Fam. Code Ann. § 102.004(a) (Vernon 2008). Petitioner is not a relative of the child related within the third degree of consanguinity, so he could not proceed under section 102.004(a). Section 102.004(b) provides further that the court may grant "a grandparent or other person" deemed to have had substantial past contact with the child leave to intervene in a pending suit "if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. § 102.004(b) (Vernon 2008). Petitioner did not intervene in any pending suit, and no evidence in this case indicates the child's health or emotional development is impaired by the child's circumstances or parent. Section 102.004(b) expressly provides that "[a]n original suit requesting possessory conservatorship may not be filed by a grandparent or other person." We doubt the Legislature would have intended section 102.003(a)(9) to permit an "end run" around specific restrictions in the Code. See In re Derzapf, 219 S.W.3d at 332. It does not appear the Legislature intended to convey standing under the circumstances presented here.<br /><br />Petitioner also refers the Court to the "in loco parentis" doctrine. The phrase means "in the place of a parent," and "refers to a relationship a person assumes toward a child not his or her own." Coons-Andersen, 104 S.W.3d at 634-35. The relationship generally occurs only when a parent is unwilling or unable to care for the child. See id. at 635. As stated in Coons-Andersen, "Texas courts have never applied the common law doctrine of in loco parentis to grant custodial or visitation rights to a non-parent, against the parent's wishes, when the parent maintains actual custody of the child." Id. at 635. The doctrine is inapplicable here. See id. at 636 (Section 102.003(a)(9) "is in complete harmony" with, and "actually embraces," the doctrine of in loco parentis.).<br /><br /><strong>Conclusion</strong><br /><br />Petitioner did not plead or prove standing under section 102.003(a)(9) to file this action. See In re M.J.G., 248 S.W.3d at 757-58. By incorrectly applying the law on standing, the trial court abused its discretion. Relator has no adequate remedy by appeal. The petition for writ of mandamus is conditionally granted. The trial court shall vacate its orders signed on July 1, 2008, and July 14, 2008. We are confident the trial court will comply with this opinion. A writ will issue only if the trial court fails to comply.<br /><br />WRIT CONDITIONALLY GRANTED.<br />____________________________<br />DAVID GAULTNEY<br />Justice<br />Submitted on May 28, 2009<br />Opinion Delivered July 16, 2009<br />Before McKeithen, C.J., Gaultney and Horton, JJ.<br /><br /><a href="http://www.texas-opinions.com/files/09-09-00131-CV-Nonparent-custody-order-set-aside-by-mandamus-opinion-with-dissent.html">In Re KKC</a> <span style="font-size:85%;">(</span><a href="http://www.9thcoa.courts.state.tx.us/opinions/docket.asp?FullDate=20090716"><span style="font-size:85%;">Tex.App.- Beaumont, Jul. 16, 2009</span></a><span style="font-size:85%;">)(order granting nonparent conservatorship reversed by mandamus) </span><br /><span style="font-size:85%;">MOTION OR WRIT GRANTED: Opinion by Justice Gaultney, Dissenting Opinion by Chief Justice McKeithen Before Chief Justice McKeithen, Justices Gaultney and Horton</span><br /><a href="http://www.9thcoa.courts.state.tx.us/opinions/case.asp?FilingID=12208"><span style="font-size:85%;">09-09-00131-CV</span></a><span style="font-size:85%;"> In Re K.K.C.</span><br /><span style="font-size:85%;">Appeal from 356th District Court of Hardin County</span><br /><br />FOOTNOTES:<br /><br /><span style="font-size:85%;">1. Exceptions are found in section 102.0035 (statement to confer standing to a prospective adoptive parent) and section 102.004(a) (consent to suit by relative of the child related within the third degree of consanguinity). See Tex. Fam. Code Ann. §§ 102.0035, 102.004(a) (Vernon 2008).</span><br /><span style="font-size:85%;"></span><br /><span style="font-size:85%;">2. Standing was among the factors considered by the Supreme Court in Troxel. See Troxel, 530 U.S. at 67, 72; see In re Derzapf, 219 S.W.3d at 331 n.7.3. The dissent makes the assertion that he does not believe the statute is unconstitutional. To be clear, we do not make that holding. Our disagreement with the dissent appears to be over the construction of the statute, and concerns the adequacy of the pleading and evidence.<br /></span><br />Also see <a href="http://grandparents-and-the-law.blogspot.com/2009/09/judges-disagree-whether-nonbiological.html">DISSENTING OPINION BY THE CHIEF JUSTICE OF THIS APPELLATE COURT</a>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-5424945182568874682009-09-23T07:43:00.000-07:002009-09-23T08:13:27.438-07:00Parental Presumption and Appointment of Grandparents AND Parents as Joint Managing Conservators (JMCs)<span style="color: rgb(0, 0, 153);"><br />Justices of the Fort Worth Court of Appeals disagree on application of parental preference principle (the <a href="http://grandparents-and-the-law.blogspot.com/2009/08/parental-preference-fundamental-policy.html">parental presumption, as defined in the Texas Family Code</a>) where two grandparents together with both parents were appointed joint managing conservators of the child. Right to determine child's primary residence still critical. </span><br /><br /><span style="color: rgb(0, 0, 153);"><span style="font-size:130%;"><span style="font-weight: bold;">THE DISSENTING & CONCURRING OPINION</span></span><br /><span style="font-size:85%;"><span style="color: rgb(0, 0, 153);">BY JUSTICE </span></span></span><style type="text/css"> <!-- @page { size: 8.5in 11in; margin: 0.79in } P { margin-bottom: 0.08in } --></style><span style="font-size:85%;"><span style="color: rgb(0, 0, 153);">TERRIE LIVINGSTON IN APPEAL NO 02-08-0015-CV, ISSUED 9/17/09)(links to other blog posts added) </span></span><br /><br /><style type="text/css"> <!-- @page { size: 8.5in 11in; margin: 0.79in } P { margin-bottom: 0.08in } --</style>The majority holds that <a href="http://grandparents-and-the-law.blogspot.com/2009/09/grandparent-custody-reversed-by-fort.html">the trial court could not appoint Joseph and Sharon (the Grandparents) together with Shelley and Roger (the Parents) as Ryder's joint managing 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</a>. See Majority op. at 9-14.<br /><p style="margin-bottom: 0in;">The majority departs from Texas Supreme Court precedent and our own precedent in its holding.</p> <p style="margin-bottom: 0in; font-weight: bold; color: rgb(0, 0, 153);">The Collective Appointment of the Grandparents and the Parents as Ryder's Joint Managing Conservators</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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. <span style="font-family:Times New Roman,serif;">§§</span> 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). </p> <p style="margin-bottom: 0in;">But these findings are not required when both parents are named managing conservators.</p> <p style="margin-bottom: 0in;">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).</p> <p style="margin-bottom: 0in;">In Brook, the court reviewed the collective appointment of the mother and the mother's parents as joint managing conservators to the exclusion of the 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 of a parent to serve jointly with a non-parent" and that it applies only if “appointment is to be denied to both parents").</p> <p style="margin-bottom: 0in;">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 153.131.1 Brook, 881 S.W.2d at 298B99. 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."</p> <p style="margin-bottom: 0in;">The majority solely relies on subsection (b) as having precedent-overruling importance. See Majority op. at 10-13. 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 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</p> <p style="margin-bottom: 0in;">It is “fundamental to the very structure of our appellate system that [the Texas Supreme Court's] decisions be binding on the lower courts." Dallas Area Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659, 666 (Tex. 2008), cert. denied, 129 S. Ct. 2767 (2009); see Lubbock County v. Trammel's Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (explaining that it “is not the function of a court of appeals to abrogate or modify established precedent"). </p> <p style="margin-bottom: 0in;">Under the 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 <a href="http://grandparents-and-the-law.blogspot.com/2009/07/best-interest-of-child-in-texas-holley.html">Holley v. Adams. 544 S.W.2d 367, 372 (Tex. 1976)</a>. Thus, I would affirm the trial court's conservatorship appointment, and I dissent to the portion of the majority's opinion reversing the appointment.</p> <p style="margin-bottom: 0in; font-weight: bold; color: rgb(0, 0, 153);">Primary Possession</p> <p style="margin-bottom: 0in;">Although Brook's application supports affirming the Grandparents' appointment as managing conservators along with the Parents, it 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).</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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.). </p> <p style="margin-bottom: 0in;">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 address or contemplate application of the [parental] presumption to the issue of primary possession, [it] would have to rewrite the statute in order to reach the result in De La Pena." Id.</p> <p style="margin-bottom: 0in;">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, the child's aunt 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 presumption to the primary possession issue, the El Paso Court held and explained that</p> <p style="margin-bottom: 0in;">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 shall be awarded primary possession unless such an order would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development.[3] </p> <p style="margin-bottom: 0in;">Id. at 534-35 (emphasis added).</p> <p style="margin-bottom: 0in;">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 companionship, care, custody, and management" of his or her children are constitutional interests Afar more precious than any property right." Santosky v. Kramer, 455 U.S. 745, 758-59, 102 S. Ct. 1388, 1397 (1982). Implicit in these rights is the right to decide where one's child is to reside.</p> <p style="margin-bottom: 0in;">The majority says that applying the parental presumption to which 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 14.<br /></p><p style="margin-bottom: 0in;">But the family code supports the application of the presumption even when nonparents are designated as joint managing conservators without applying 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 joint managing 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).</p> <p style="margin-bottom: 0in;">Other sections of the family code also support presuming that parents should 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 (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 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).</p> <p style="margin-bottom: 0in;">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 finding that the Grandparents rebutted the 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.</p> <p style="margin-bottom: 0in;"> </p> <p style="margin-bottom: 0in; font-weight: bold; color: rgb(0, 0, 153);">Conclusion</p> <p style="margin-bottom: 0in;">For these reasons, I respectfully dissent to the portion of the majority's opinion and 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.</p> <p style="margin-bottom: 0in;">TERRIE LIVINGSTON</p> <p style="margin-bottom: 0in;">JUSTICE</p> <p style="margin-bottom: 0in;">DELIVERED: September 17, 2009</p> <span style="font-weight: bold;font-size:85%;" ><br /><span style="color: rgb(0, 0, 153);">FOOTNOTES: </span></span><br /><meta equiv="CONTENT-TYPE" content="text/html; charset=utf-8"><title></title><meta name="GENERATOR" content="OpenOffice.org 2.3 (Win32)"><style type="text/css"> <!-- @page { size: 8.5in 11in; margin: 0.79in } P { margin-bottom: 0.08in } --> </style> <p style="margin-bottom: 0in;">1 Subsection (a) of section 153.131 currently provides,</p> <p style="margin-bottom: 0in;">[U] nless 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, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.</p> <p style="margin-bottom: 0in;">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,</p> <p style="margin-bottom: 0in;">A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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[a] parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child."</p> <p style="margin-bottom: 0in;">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 12. 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 requiring that both parents be appointed joint managing conservators unless rebutted." Majority op. at 12-13. 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.</p> <p style="margin-bottom: 0in;">3 This language signals the El Paso Court's opinion that where a court does not find significant impairment under the parental 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.</p> <p style="margin-bottom: 0in;">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. </p>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-14280120132149087352009-09-20T22:27:00.000-07:002009-09-23T08:25:31.192-07:00Grandparent Custody Reversed by Fort Worth Court of Appeals<span style="font-weight: bold; color: rgb(0, 0, 153);"><br />Panel of Texas Second Court of Appeals (Ft. Worth) concludes that parental presumption was not rebutted by grandparents and reverses divorce decree that designated both paternal grandparents as joint managing conservators of their grandson, along with the parents. One justice wrote a <a href="http://grandparents-and-the-law.blogspot.com/2009/09/parental-presumption-and-appointment-of.html">separate opinion, disagreeing in part on the proper interpretation and application of the statutory custody preference in favor of parents where the parents were also appointed JMCs</a>. </span><br /><br /><span style="color: rgb(0, 0, 153);"><span style="font-size:130%;"><span style="font-weight: bold;">THE OPINION</span></span><br />BY CHIEF JUSTICE CAYCE IN APPEAL NO 02-08-0015-CV, ISSUED 9/17/09 FOLLOWS: </span><style type="text/css"> <!-- @page { size: 8.5in 11in; margin: 0.79in } P { margin-bottom: 0.08in } --> </style> <p style="margin-bottom: 0in;">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.<br /></p> <p style="margin-bottom: 0in;">We reverse and remand.</p> <p style="margin-bottom: 0in;"> </p> <p style="margin-bottom: 0in; font-weight: bold;">I. Background</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">In June 2004, Shelley moved in with Chris and his parents while Ryder continued to stay with his Grandparents. During much of the 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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">Shelley filed answers to the petitions, along with a counterpetition for divorce 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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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),[1] 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 of possession, including times during the summer and on holidays.</p> <p style="margin-bottom: 0in;">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.[2] </p> <p style="margin-bottom: 0in;">In November 2007, Shelley filed a motion for new trial, asserting that the evidence presented at trial was legally and factually insufficient to support the trial court's 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 submitted proposed findings of fact and conclusions of law, which the trial court adopted. In the court's findings of fact, the court found that the Grandparents “rebutted the parental presumption" and that it was in Ryder's best interest that the Grandparents, Shelley, and Roger be appointed joint managing conservators. This appeal and cross-appeal followed.</p> <p style="margin-bottom: 0in;"> </p> <p style="margin-bottom: 0in; font-weight: bold;">II. Issues on Appeal</p> <p style="margin-bottom: 0in;">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 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 than one year and 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. </p> <p style="margin-bottom: 0in; font-weight: bold;">A. Standard of Review</p> <p style="margin-bottom: 0in;">A trial court's decision regarding 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 demonstrate that an abuse of discretion has occurred.[6] </p> <p style="margin-bottom: 0in;">An abuse of discretion does not occur where the trial court bases its decision on conflicting evidence.[7] 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.[8] </p> <p style="margin-bottom: 0in; font-weight: bold;">B. The Parental Presumption</p> <p style="margin-bottom: 0in;">In her first issue, Shelley contends that the trial court abused its discretion when it 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.[9] Section 153.131 provides:</p> <p style="margin-bottom: 0in;">(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 child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child. </p> <p style="margin-bottom: 0in;">(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. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.[11] </p> <p style="margin-bottom: 0in;">Section 153.373 states that</p> <p style="margin-bottom: 0in;">[t] he presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that:</p> <p style="margin-bottom: 0in;">(1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, licensed 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</p> <p style="margin-bottom: 0in;">(2) the appointment of the nonparent or agency as managing conservator is in the best interest of the child.[12] </p> <p style="margin-bottom: 0in;">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 find that (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] </p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">In Brook v. Brook,[16] the supreme court construed former family code section 14.01, which provided, in pertinent part, as follows:</p> <p style="margin-bottom: 0in;">(a) In any suit affecting the parent-child relationship, the court may appoint a sole managing conservator or may appoint joint managing 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.</p> <p style="margin-bottom: 0in;"> (b) A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:</p> <p style="margin-bottom: 0in;">(1) 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.[17] </p> <p style="margin-bottom: 0in;">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.[18] </p> <p style="margin-bottom: 0in;">Unlike current section 153.131, former section 14.01 contained no rebuttable presumption that appointment of both parents as joint managing conservators is in the child's best interest.[19] At the time Brook was decided, a trial court was authorized to appoint parents as joint managing conservators only upon finding that the appointment would be in the child's best interest.[20] This is no longer the law.[21] </p> <p style="margin-bottom: 0in;">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 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. Nor does Brook compel this result. </p> <p style="margin-bottom: 0in;">The <a href="http://grandparents-and-the-law.blogspot.com/2009/09/parental-presumption-and-appointment-of.html">dissent suggests that we have departed from binding precedent of the supreme court and of this court</a>. 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.<br /></p><p style="margin-bottom: 0in;">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] </p> <p style="margin-bottom: 0in;">The <a href="http://grandparents-and-the-law.blogspot.com/2009/09/parental-presumption-and-appointment-of.html">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 conservator should determine the child's permanent residence</a>. As written by the 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."[26] 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 conservators"- it makes no reference to a separate presumption for determining which joint managing conservator chooses the child's permanent residence.[27] To reach the result that the dissent advocates, we would be required to legislate from the bench and convert the managing conservator presumption into a “primary custody" presumption with no statutory authority for doing so. We are not inclined to do this.[28] </p> <p style="margin-bottom: 0in;">We hold that the trial court correctly followed express provisions of the family code by applying the parental presumption to the appointment of the Grandparents as joint managing conservators in this case.<br /></p><p style="margin-bottom: 0in;">Upon finding that the parental presumption was rebutted, however, the trial court failed to make findings specifically stating how 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.</p> <p style="margin-bottom: 0in; font-weight: bold;">C. The Sufficiency of the Evidence to Overcome the Parental Presumption</p> <p style="margin-bottom: 0in;">We now turn to Shelley's contention in her second issue that insufficient evidence was presented by the Grandparents to rebut the presumption through either voluntary relinquishment or significant impairment grounds.[32] </p> <p style="margin-bottom: 0in; font-weight: bold;">1. Standards of Review</p> <p style="margin-bottom: 0in;">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.[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 the trial court had sufficient evidence upon which to exercise its discretion; and (2) whether the trial court erred in applying its discretion.[34] </p> <p style="margin-bottom: 0in;">We may sustain a legal sufficiency 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 (4) 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 to the finding unless a reasonable factfinder could not.[36] </p> <p style="margin-bottom: 0in;">When reviewing an assertion that the evidence is factually insufficient to support a finding, we set aside the finding only if, after considering and weighing all of the evidence in the record pertinent to that finding, we 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] </p> <p style="margin-bottom: 0in; font-weight: bold;">2. Voluntary Relinquishment of Ryder for a Period of One Year or More</p> <p style="margin-bottom: 0in;">The Grandparents contend that Shelley's sparse contact with Ryder from January 2004 to January 2005 proves that she voluntarily relinquished actual care, control, and possession of Ryder to them. We disagree.</p> <p style="margin-bottom: 0in;">Between January and April of 2004, Shelley maintained her permanent residence 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.</p> <p style="margin-bottom: 0in;">After Shelley moved out of the 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.</p> <p style="margin-bottom: 0in;">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 that she talked with 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."</p> <p style="margin-bottom: 0in;">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] </p> <p style="margin-bottom: 0in; font-weight: bold;">3. Significant Impairment of Ryder's Physical Health or Emotional Development</p> <p style="margin-bottom: 0in;">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.[40] Although there is some evidence to support a finding of significant impairment, we agree with Shelley that the evidence is factually insufficient to support such a finding.</p> <p style="margin-bottom: 0in;">Impairment must be proved by a 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 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] </p> <p style="margin-bottom: 0in;">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] </p> <p style="margin-bottom: 0in;">The evidence offered at trial was as follows:</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">Booth recommended that Ryder be placed with Shelley and opined that it would be in Ryder's best interest if the Grandparents fulfilled a secondary role in a more typical grandparent relationship with Ryder.</p> <p style="margin-bottom: 0in;">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] </p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">Cathy Baczynski, a licensed professional counselor, testified that, during counseling, Roger discussed identity issues related to 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, but he does not have the ability to be Ryder's primary managing conservator.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">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 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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;">Todd Maslow (who submitted the original social study report) testified that, despite his recommendation that Ryder 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.[49] He also testified that when he talked to Ryder when completing his initial study, Ryder told him he wanted to live with Shelley.</p> <p style="margin-bottom: 0in;">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,[50] and evidence established that she had taken high dosages of several types of prescription medications that sometimes negatively affected her,[51] 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 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 drug use that would cause significant impairment to Ryder's physical health or emotional development in the present.</p> <p style="margin-bottom: 0in;">With regard to Shelley's 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] Shelley's residence at the Martinezes' house seemed to be stable. Mrs. Martinez testified that Shelley had become like a daughter 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 for significant impairment to Ryder.[53] </p> <p style="margin-bottom: 0in;">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 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 allowed unattended outside, that an alarm 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.</p> <p style="margin-bottom: 0in;">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.</p> <p style="margin-bottom: 0in;"> </p> <p style="margin-bottom: 0in; font-weight: bold;">III. Conclusion</p> <p style="margin-bottom: 0in;">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.<br /></p><p style="margin-bottom: 0in;">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.<br /></p><p style="margin-bottom: 0in;">We, therefore, reverse 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 voluntary relinquishment of Ryder's care, custody, and control for the period between 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]<br /><br />[1] Ryder was diagnosed with ADHD while in the second grade.</p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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."</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[3] See Tex. R. Civ. P. 296.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[5] Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[6] Id.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[7] In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[8] See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[9] Tex. Fam. Code Ann. §§ 153.131, .373 (Vernon 2008).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[10] Section 153.004 states, in part, that 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 if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one 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.).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[11] Tex. Fam. Code Ann. § 153.131.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[12] Id. § 153.373.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[13] Id. §§ 153.131(a),(b), .373.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[14] 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.).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[15] 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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[16] 881 S.W.2d 297 (Tex. 1994).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[18] Brook, 881 S.W.2d at 300.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[19] 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").</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[20] 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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[23] 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). 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 requires that the presumption favoring the 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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[24] See Connors v. Connors, 796 S.W.2d 233, 239 (Tex. App._Fort Worth 1990, writ denied).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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 statute that was substantively amended should be construed as if it had not been amended).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[26] Tex. Fam. Code Ann. § 153.131 (emphasis added).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[27] Id.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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 to primary custody in 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.).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[30] Chavez, 148 S.W.3d at 459-60.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[31] Tex. R. Civ. P. 297, 299; Chavez, 148 S.W.3d at 459-60.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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 this ground for rebutting the parental presumption. See Tex. Fam. Code Ann. § 153.131(b).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[33] 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.).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[34] M.C.F., 121 S.W.3d at 895.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[35] Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362B63 (1960).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[36] 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).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[37] 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).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[38] According to Sharon's calendar, Shelley saw Ryder only twenty times from June through December 2004.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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 to Roger's petition and 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 occurred while the order was in effect was involuntary. Id. (concluding that a temporary 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 1997, writ denied) (suggesting that voluntary relinquishment ends when temporary restrictions are ordered).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[40] See Tex. Fam. Code Ann. § 153.131(a); Sotelo, 170 S.W.3d at 788.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[42] Lewelling, 796 S.W.2d at 167.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[43] Id. at 168.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[44] Id.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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).</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[46] At trial, Shelley testified that she visited Ryder's school two days a week and that she went to his school-related activities.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[48] Sharon's testimony confirmed the threat.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[53] See Lewelling, 796 S.W.2d at 167.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">[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.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">Link to <a href="http://grandparents-and-the-law.blogspot.com/2009/09/parental-presumption-and-appointment-of.html">Dissenting Opinion on Parental Preference and Appointment of Grandparents and Parents as JMCs </a><br /></span> </p>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-77972351124864662972009-09-10T08:19:00.000-07:002009-09-10T08:40:46.625-07:00Lack of Biological Mother's Consent Dooms Adoption Claim by Mother's Former Partner<strong><span style="color:#000099;">Lesbian lover's bid to adopt child she helped care for fails in the absence of natural mother's consent. Termination of parental rights of the biological mother (who had child by artificial insemination) as a predicate for adoption was not an issue. <a href="http://grandparents-and-the-law.blogspot.com/2009/09/in-interest-of-mks-v-child-texapp.html">Former partner's petition for visitation rights as de facto "co-parent" also fails on standing grounds</a>. </span></strong><br /><br />FROM THE OPINION OF THE DALLAS COURT OF APPEALS IN 05-08-00568-CV<br /><br /><strong><span style="color:#000099;">Adoption Claims</span></strong><br /><br />In her third and fourth issues, K.V. asserts the court erred in dismissing her claims for adoption without a hearing on the merits and after finding she had standing. As stated, T.S. moved to dismiss K.V.'s adoption claims on the ground, among others, that she would not consent and had not consented to the adoption.<br /><br />Consent is a requirement, separate from standing, for adoption under family code section 162.001 and also for adoption by estoppel. See Tex. Fam. Code Ann. § 162.001; Luna v. Rodriguez, 906 S.W.2d 576, 579 (Tex. App.-Austin 1995, no writ) (agreement to adopt essential element of adoption by estoppel).<br /><br />At the hearing on standing, T.S. denied consenting that K.V. could adopt M.K.S. Numerous other witnesses, many of whom testified on K.V.'s behalf, also testified they were unaware of any agreement to adopt. When asked for evidence of any agreement to adopt, K.V. testified about acts by T.S. that showed, in K.V.'s opinion, an agreement to adopt. Such acts included naming M.K.S. at birth M.K.S.-V. so that M.K.S. would share K.V.'s name; holding K.V. out as M.K.S.'s mom; and, “talking about [K.V.] adopting [M.K.S.]. But K.V. stopped short of testifying to an actual agreement.<br /><br />Without consent or an agreement, however, K.V. cannot adopt M.K.S. and the trial court did not err in dismissing her adoption claims. We resolve K.V.'s third and fourth issues against her.<br /><br />We affirm the trial court's “final judgment dismissing suit.”<br /><br /><span style="font-size:85%;">SOURCE: Opinion of the Fifth Court of Appeals (Dallas) in </span><br /><span style="font-size:85%;">IN RE M.K.S.-V., No. 05-08-00568-CV (Tex.App.- Dallas [5th Dist.] Aug. 31, 2009) </span>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-77415341044424898972009-09-10T07:58:00.000-07:002009-09-10T08:17:54.463-07:00Breach of Visitation Agreement Claim Cannot Be Heard in the Absence of Standing<span style="color:#cc0000;">STANDING DOCTRINE PRECLUDES DETERMINATION OF WHETHER CO-PARENTING CONTRACT IS VIABLE</span><br /><br /><span style="color:#000099;">What if a parent and nonparent make an agreement (or arguably entered into an informal agreement) to share custody of a child or set a schedule for visitation by the nonparent? Will such an agreement be enforced as a contract by a court if the relationship between the partners sours and the natural parent of the child denies the former mate visitation or stops all contact? </span><br /><span style="color:#000099;"></span><br /><span style="color:#000099;">The Dallas Court of Appeals recently reviewed such a claim brought by the former partner of the biological mother and disposed of it by finding that the nonparent lacked standing to bring the suit in which the issue would be presented for adjudiation. Without standing, the merits cannot be reached. Nor could the court reach the issue of whether continuing contact pursuant to the terms of a visitation agreement between the mother and her former partner would be in the child's best interest. </span><br /><br />FROM THE OPINION:<br /><br /><strong><span style="color:#000099;">Dismissal of Other Claims</span></strong><br /><br /><span style="color:#000099;"><strong>Claim for Breach of the Possession Agreement.</strong></span><br /><br />In her second issue, K.V. asserts the court erred in dismissing her claim for breach of the possession agreement without a hearing on the merits. K.V. asserts the dismissal violated the open courts provision of the Texas Constitution and her due process rights under both the United States and Texas Constitutions. See United States Const. amend. XIV (due process); Tex. Const. art. I, §13 (open courts provision), §19 (due process).<br /><br />As T.S. argued in her motion to dismiss, however, this claim is a claim for conservatorship, for which K.V. lacks standing. Because standing is a prerequisite to filing a suit, see M.P.B., 257 S.W.3d at 808, the trial court had to dismiss the claim and did not err for failing to hold a hearing on the merits. We resolve K.V.'s second issue against her.<br /><br />SOURCE: Appellate Opinion of the Dallas Court of Appeals in Cause No. 05-08-00568-CV (8/31/09)GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-89513501881714429592009-09-10T07:11:00.000-07:002009-09-10T08:57:59.465-07:00In the Interest of M.K.S.-V, a Child (Tex.App.- Dallas 2009)<span style="color:#cc0000;">NON-PARENTS & STANDING TO BRING SAPCR SUIT</span><br /><br /><strong><span style="color:#000099;">Nonbiological Co-Parent's Bid for Conservatorship or Adoption in Two-Mommies Case Fails</span></strong><br /><br /><span style="color:#000099;">A recent opinion of the Dallas Court of Appeals addresses the issues of standing of a nonparent in a same-sex relationship context, and affirms the trial court's dismissal of a suit for conservatorship and/or adoption by a former domestic partner of the natural mother, who had conceived the child at issue in the SAPCR/adoption litigation by artificial insemination. </span><br /><span style="color:#000099;"></span><br /><span style="color:#000099;">The lengthy opinion is instructive as to the law as it is -- or may be -- applied to any non-parent seeking visitation or custody of a child they have helped care for, invoking past contact as a basis for standing. Although standing is a jurisdictional doctrine, the facts in a particular case are still highly relevant in the determination of whether the Family Code's standing criteria have been satisfied. The result of the inquiry into a nonparent's standing is hardly a foregone conclusion. Different courts may reach different conclusions. Here, the appellate panel agrees with the trial court that the case was properly dismissed because the petitioner did not meet the standing criteria defined by the Texas Family Code . </span><span style="color:#000099;">[The sections of the appellate opinion addressing <a href="http://grandparents-and-the-law.blogspot.com/2009/09/breach-of-visitation-agreement-claim.html">visitation denial as a breach of possession agreement</a> and rejecting the <a href="http://grandparents-and-the-law.blogspot.com/2009/09/lack-of-biological-mothers-consent.html">coparent adoption claim </a>are placed in separate posts.]</span><br /><br />OPINION BY JUSTICE RICHTER<br /><br />This is an appeal from the dismissal of K.V.'s suit for conservatorship or adoption of M.K.S, [See Footnote 1] a child born in May 2004 to K.V.'s ex-partner T.S.<br /><br />In four issues, K.V. asks us to decide whether (a) her possession of M.K.S. over a twenty-one month period under an informal agreement somewhat similar to the Standard Possession Order found in section 153.312 of the Texas Family Code constituted “actual care, control, and possession of the child for at least six months” as provided in family code section 102.003(a)(9) for purposes of standing to sue for conservatorship; and (b) the dismissal, without a hearing on the merits, of her claims for breach of the possession agreement, adoption, and equitable adoption by estoppel was improper.<br /><br />We answer both in the negative and affirm the trial court's “final judgment dismissing suit.”<br /><br /><strong><span style="color:#000099;">Background </span></strong><br /><br />K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about having a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Wanting to keep “some sort of continuity for [M.K.S.],” T.S. agreed M.K.S. could visit K.V. regularly and set up a schedule. Under the agreement, M.K.S. would visit K.V. overnight once a week, alternate Sunday afternoons, alternate weekends beginning on Friday afternoons during the school year and Thursday afternoons “at times” in the summer, and “some holidays.” [See Footnote 2] This schedule began August 5, 2005 and continued until April 25, 2007 when T.S. discontinued the visits because K.V. had accessed M.K.S.'s school record against T.S.'s “directive.” The following month, K.V. filed suit seeking to be appointed joint managing conservator of M.K.S. or, in the alternative, to adopt her.<br /><br />Not being a biological parent of M.K.S., K.V. asserted standing to sue for conservatorship under section 102.003 (a)(9)-as a person who had “actual care, control, and possession of [M.K.S.] for at least six months ending not more than 90 days preceding the date of the filing of the petition.” Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008).<br /><br />She asserted she was a “parent by estoppel” and had standing to sue for adoption under family code section 102.005(3)-as a person who had “actual possession and control of the child for not less than two months during the three-month period preceding the filing of the petition.” Id. § 102.005(3).<br /><br />T.S. specially excepted to K.V.'s claims and challenged K.V.'s allegations concerning standing. Following an evidentiary hearing before the associate judge on the issue of standing and an appeal to the trial court, the trial court found K.V. did not have standing to pursue her suit for conservatorship but had standing to pursue the adoption. The trial court found K.V. had standing to pursue the adoption not under section 102.005(3), but under section 102.005(5)-having had “substantial past contact with the child sufficient to warrant standing to do so.” [See Footnote 3] Id. § 102.005(5).<br /><br />Based on its findings, the trial court ordered K.V. to amend her petition to assert adoption only. See id. § 102.001(b). K.V. complied, asserting standing under section 102.005(5) and claims for (1) adoption under family code section 162.001, (2) adoption by estoppel, and (3) breach of contract based on an alleged agreement by T.S. that K.V. would be able to adopt M.K.S. K.V. also asserted T.S. breached a contract, as shown by the possession agreement, that K.V. would have possession of and access to M.K.S. T.S. subsequently moved to dismiss K.V.'s adoption claims, arguing T.S.'s parental rights had not been and would not be terminated, K.V. had never married T.S. and was not a step-parent, and T.S. would not consent and had not consented to the adoption.<br /><br />T.S. also moved to dismiss K.V.'s claim for the breach of the possession agreement, arguing it amounted to a conservatorship claim for which K.V. lacked standing. See generally Tex. Fam. Code Ann. ch. 153 (providing for possession of or access to a child only to conservators of the child); see also In re P.D.M., 117 S.W.3d 453, 455 (Tex. App.-Fort Worth 2003, pet. denied) (en banc) (noting party's initial right to possession of a child is governed by family code chapter 153). Following a hearing on the motion, the trial court dismissed “all claims” asserted by K.V. and “confirm[ed] the previous finding that [K.V.] lacks standing to pursue her . . . claims for conservatorship.”<br /><br /><strong><span style="color:#000099;">Standing</span></strong><br /><br />A person seeking conservatorship of a child must have standing to bring suit. See In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.-San Antonio 2004, no pet.).<br /><br />A component of subject matter jurisdiction-which is a court's power to hear a case, standing is a constitutional prerequisite to maintaining a lawsuit under Texas law and focuses on who is entitled to bring an action. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.-Dallas 2008, no pet.).<br /><br />Standing exists by operation of law and cannot be conferred by waiver or estoppel. In re H.G., 267 S.W.3d 120, 124 (Tex. App.-San Antonio 2008, pet. denied) (op. on reh'g). Subject to two exceptions in the context of suits affecting the parent- child relationship (SAPCR), standing also cannot be conferred by consent. [See Footnote 4] In re K.K.C., No. 09-09- 00131-CV, 2009 WL 2045331, *1 n.1 (Tex. App.-Beaumont July 16, 2009, no pet. h.); H.G., 267 S.W.3d at 124.<br /><br />In Texas, standing in the context of SAPCRs is governed by the family code, and a party seeking relief in such suits must plead and establish standing within the parameters of the language used in the code. See H.G., 267 S.W.3d at 124; see also Tex. Fam. Code Ann. §§ 102.003-.007. If a party fails to do so, the trial court must dismiss the suit. See In re C.M.C, 192 S.W.3d 866, 870 (Tex. App.-Texarkana 2006, no pet.).<br /><br />We review de novo a trial court's dismissal based on lack of standing. See Coons-Andersen v. Andersen, 104 S.W.3d 630, 633-34 (Tex. App.-Dallas 2003, no pet.); Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.-El Paso 2002, no pet.). Section 102.003(a)(9)<br /><br />To establish “actual care, control, and possession” as required by section 102.003(a)(9), the section under which K.V. asserts standing, the party must demonstrate (i) more than temporary or occasional possession, though it need not be exclusive, and (ii) more than the control “implicit in having care and possession of the child.” See K.K.C., 2009 WL 2045331, *3 (control); In re M.J.G., 248 S.W.3d 753, 758-59 (Tex. App.-Fort Worth 2008, no pet.) (control); Coons-Andersen, 104 S.W.3d at 634 (possession or access).<br /><br />To establish the six-month requirement of “actual care, control, and possession of the child” as required by section 102.003(a)(9), the party must demonstrate the child “principally resided” with him, though the residency of the child with the party need not be continuous and uninterrupted. See Tex. Fam. Code Ann. § 102.003(b); M.P.B., 257 S.W.3d at 808; Doncer, 81 S.W.3d at 362. Visitation in accordance with the Standard Possession Order found in section 153.312 of the family code may satisfy the standing requirement. See Doncer, 81 S.W.3d at 362.<br /><br />Whether a party satisfies the standing requirement under section 102.003(a)(9) is necessarily fact specific and determined on a case-by-case basis. M.P.B., 257 S.W.2d at 809.<br /><br />In her first issue, K.V. challenges the court's “confirmation” that she lacked standing to sue for conservatorship. She makes two arguments. First, relying on M.P.B., 257 S.W.3d 804, and Doncer, 81 S.W.3d 349, she maintains she satisfied the standing requirement by virtue of her weekly overnight possessions of M.K.S. and possessions on “some holidays,” alternate weekends, and alternate Sundays. See Footnote 5 Second, and in the alternative, she argues T.S. is estopped to assert standing as a bar to this suit because of T.S.'s “actions and explicit representations to K.V. . . . including the stipulated possession agreement.”<br /><br />In Doncer, a step-mother-Doncer-sought conservatorship of her six-year old step-son Mickey, after her husband-Mickey's father-passed away. Doncer, 81 S.W.3d at 351. Doncer's deceased husband and his ex-wife Dickerson were joint managing conservators of Mickey. Id. Mickey's primary residence was with Dickerson, but Doncer's deceased husband had Mickey “51 percent of the time in even-numbered years and nearly 48 percent of the time in odd-numbered years” under the conservatorship agreement which awarded him slightly more periods of possession than the standard possession order. [See Footnote 6] Id. at 351, 352. Comparing the term “principal residence” as used in the determination of the six-month possession requirement in section 102.003(a)(9) with the term “primary residence” “as defined in a joint managing conservatorship” in connection with whom the child lives once conservators have been appointed, the court concluded the term “principal residence” means a “fixed place of abode, occupied consistently over a substantial period of time, which is permanent rather than temporary.” Id. at 359-61. The court further concluded Doncer had standing to sue, having established her home was Mickey's principal residence for a period of at least six months before she filed suit. Id. at 362. By virtue of the conservatorship agreement, the court reasoned, Doncer's deceased husband and Dickerson had “intended Mickey to occupy the Doncer home consistently, over a substantial period of time” and not as a “temporary arrangement to facilitate momentary housing difficulties, inconvenient travel schedules, the pursuit of higher education, or the inability to provide child care.” Id.<br /><br />In M.P.B., a grandmother sought joint managing conservatorship of her granddaughter, twenty-one-month old M.P.B., following the death of M.P.B.'s mother. M.P.B., 257 S.W.3d at 807. M.P.B. and her mother had lived with the grandmother for three months before moving to a nearby apartment. Id. at 809. Then, over the next seventeen months, M.P.B. spent every Wednesday night, every weekend beginning “sometimes” on Thursdays and “sometimes” on Fridays, holidays, and vacations at the grandmother's house. Id. Although grandmother shared actual care, control, and possession of M.P.B. with the granddaughter's mother, a panel of this Court concluded that the grandmother had standing under section 102.003(a)(9) to seek appointment as joint managing conservator of M.P.B. because she provided M.P.B. a permanent rather than temporary residence which the granddaughter occupied consistently over a substantial period of time. Id. Borrowing language from Doncer and M.P.B., K.V. argues her home was a “principal residence” of M.K.S. because it was “a fixed place of abode” M.K.S. occupied consistently and in a permanent fashion, in accordance with the possession agreement. Noting the Doncer court considered the conservatorship agreement, providing for slightly more visitation than the standard possession order, between Doncer's deceased husband and Dickerson as evidence of an intent that the child occupy the Doncer home consistently, K.V. points out that the possession agreement she had with T.S. was similar also to the standard possession order and evinced an intent that M.K.S. occupy K.V.'s home consistently over a substantial period of time. An intent that M.K.S. occupy K.V.'s home consistently over a substantial period of time alone, however, establishes only the six- month requirement of section 102.003(a)(9). See Tex. Fam. Code Ann. § 102.003(b).<br /><br />To establish standing, K.V. also had to establish she exercised more than the control implicit in having care and possession of the child. See K.K.C., 2009 WL 2045331 *3. Although the “possession agreement” shared characteristics of a standard possession order, see Tex. Fam. Code Ann. §153.312, nothing in the record shows it was accompanied by the rights a parent conservator enjoys “at all times,” see id. §153.073, or that T.S. relinquished or shared any of her rights as a parent, see id. § 151.001(a). Other than testimony showing K.V. attended school activities and the staff at M.K.S.'s school knew K.V. would pick M.K.S. up on the days designated for possession, the record does not show K.V. had the right to confer with T.S. before T.S. made any decisions concerning M.K.S.'s health, education, and welfare; had access to M.K.S.'s medical and educational records; or could consult with school officials or with medical personnel. In fact, the record reflects T.S. discontinued the visits after K.V. accessed M.K.S.'s school records against T.S.'s directives and moved M.K.S. to another school without consulting or even informing K.V. The record further reflects T.S. asked K.V. to stop paying for M.K.S.'s school and that she “made all [M.K.S.'s] decisions.”<br /><br />Based on the record, we reject K.V.'s argument that she established by virtue of her possession agreement that she had standing to sue for conservatorship. [See Footnote 7] See K.K.C., 2009 WL 2045331, *2- 4 (mother's friend, who had lived with mother and child for over six months, cared for child, bathed child, attended school functions, supported child, disciplined child, comforted child, and picked child up from day care almost daily, lacked standing to sue for conservatorship where mother adequately cared for child, lived with child, and did not relinquish her parental rights, duties, and responsibilities); In re Kelso, 266 S.W.3d 586, 590-91 (Tex. App.-Fort Worth 2008, no pet.) (grandparents lacked standing to sue for conservatorship of grand child who lived primarily with them where evidence showed mother determined when child would come home or visit).<br /><br />We also reject K.V.'s argument that T.S. is estopped from asserting standing as a bar to the conservatorship claim. As stated, standing cannot be conferred by estoppel. H.G., 267 S.W.3d at 124. We resolve K.V.'s first and second issues against her.<br /><br /><strong><span style="color:#000099;">Dismissal of Other Claims</span></strong><br /><br /><em>[Section on <a href="http://grandparents-and-the-law.blogspot.com/2009/09/breach-of-visitation-agreement-claim.html">Claim for Breach of the Possession Agreement</a> omitted; click link]</em><br /><em></em><br /><em>[Section discussing and rejecting <a href="http://grandparents-and-the-law.blogspot.com/">former domestic partner's Adoption Claims</a> omitted; click link</em>]<br /><br />We affirm the trial court's “final judgment dismissing suit.”<br /><br />MARTIN RICHTER<br />JUSTICE<br /><br /><span style="font-size:85%;">Footnote 1 M.K.S.'s name at birth was M.K.S.-V. Although her name was legally changed to M.K.S. prior to the filing of this suit, the judgment of dismissal is captioned “In the Interest of M.K.S.-V.” </span><br /><span style="font-size:85%;"></span><br /><span style="font-size:85%;">Footnote 2 The record contains testimony that K.V. and T.S. “divided major holidays” as well as testimony that K.V. had M.K.S. only on holidays that “happened to fall” during K.V.'s period of visitation.</span><br /><span style="font-size:85%;"></span><br /><span style="font-size:85%;">Footnote 3 This section was formerly section 102.005(4). See Act of Mar. 21, 1995, 74th Leg., R.S., ch. 20, §1, sec.102.005(4), 1995 Tex. Gen. Laws 113, 125. The redesignation became effective September 1, 2007. See Act of June 15, 2007, 80th leg., R.S., ch. 1406, §3, 2007 Tex. Gen. Laws 4814, 4815. Having filed her suit before the effective date, K.V.'s petition is governed by the former law. Id. §3(b). Because the change is simply one of renumbering, however, we refer to the current code section.</span><br /><span style="font-size:85%;"></span><br /><span style="font-size:85%;">Footnote 4 The exceptions, neither of which apply in this case, are found in sections 102.0035 and 102.004(a)(2) of the family code. See In re K.K.C., No. 09-09-00131-CV, 2009 WL 2045331, *1 n.1 (Tex. App.-Beaumont July 16, 2009, no pet. h.) (citing to Texas Family Code sections 102.0035 and 102.004(a)). Under section 102.0035, a parent or expectant mother can confer standing to a prospective adoptive parent. See Tex. Fam. Code Ann. § 102.0035. Under section 102.004(a)(2), a parent can also consent to a suit by a grandparent or relative of the child related within the third degree by consanguinity. Id. § 102.004(a)(2).</span><br /><span style="font-size:85%;"></span><br /><span style="font-size:85%;">Footnote 5 K.V. does not challenge the court's implicit finding that she lacked standing under section 102.005(3)-as a person having “actual possession and control of the child for not less than two months during the three month period preceding the filing of the petition.” </span><br /><span style="font-size:85%;"></span><br /><span style="font-size:85%;">Footnote 6 Rather than ending on Sunday, Mickey's visits with his father ended Wednesday morning. Cf. Tex. Fam. Code Ann. § 153.312.</span><br /><br /><span style="font-size:85%;">Footnote 7 We recognize that neither Doncer nor M.P.B. discuss the “actual care, control, and possession” requirement of section 102.003(a)(9). The Doncer court, however, noted no limitations in Doncer's husband's rights as a parent conservator or his rights during periods of possession. See Doncer, 81 S.W.3d 351-53; see also Tex. Fam. Code Ann. §§153.073, 153.074. And, the M.P.B. court noted the grandmother testified she was “significantly involved in 'raising' M.P.B. . . . and was 'as much a primary caregiver, if not more' than [m]other.” M.P.B., 257 S.W.3d at 809.</span><br /><br /><span style="font-size:85%;">SOURCE: Opinion of the Dallas Court of Appeals in Appellate Cause No. 05-08-00568-CV (8/31/09) </span>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-8936480885599700052009-09-04T10:35:00.000-07:002009-09-04T10:51:09.786-07:00Suit for Clarification of Prior SAPRC Order / Divorce Decree: Who has standing to bring suit to clarify the original order?RIGHT TO SEEK CLARIFICATION OF PRIOR ORDER DEPENDS ON PARTY STATUS AND STANDING<br /><br /><span style="color:#000099;">The Family Code allows a party to seek clarification of an order in prior suit affecting the parent-child relationship (SAPCR) when lack of clarity has become an issue and enforcement is impossible. But who is a party? In a recent case, the grandparents were not involved in the parent's original divorce action (as intervenors), but acquired access to the child in a subsequent SAPCR modification proceeding. The Dallas Court of Appeals found that the grandparents did not qualify as "parties" and thus had no standing to seek clarification of the divorce decree provision governing payment of college tuition. </span><br /><span style="color:#000099;"></span><br /><span style="color:#000099;">From the opinion: </span><br /><br />With respect to statutory standing, the family code provides that “[a] court may clarify an order rendered by the court in a [suit affecting the parent-child relationship] if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt.” Tex. Fam. Code Ann. § 157.421(a) (Vernon 2008).<br /><br />Thus, it appears that only “a party” has standing to request clarification of an order in a suit affecting the parent-child relationship. So the question becomes whether Grandparents were “parties” within the meaning of section 157.421(a).<br /><br />In construing a statute, we start with the plain and ordinary meaning of its words. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If its meaning is unambiguous, we generally enforce it according to its plain meaning. Id. Regardless of whether a statute is ambiguous, we may consider certain extrinsic matters in interpreting it, such as the object the legislature sought to attain, the common law or former statutory provisions, and the consequences of a particular construction. PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879, 882 (Tex. App.-Dallas 2007, no pet.).<br /><br />“Party” has two ordinary meanings in the legal context: (1) a participant in a transaction, such as a party to a contract, or (2) one by or against whom a lawsuit is brought. Black's Law Dictionary 1154 (8th ed. 2004); accord Doe v. Roe, 600 S.W.2d 378, 379 (Tex. Civ. App.-Eastland 1980, writ ref'd n.r.e.) (“Texas courts have long held that a 'party' is one by or against whom a suit is brought while all others who may be incidentally or consequently affected [are] 'persons interested' but not parties.”).<br /><br />We give the word “party” as used in section 157.421(a) its ordinary meaning and conclude that Grandparents do not qualify as “parties” under either definition of the word. First, they were not parties to the agreed divorce decree that they seek to have clarified. Second, nothing in our record indicates that they were parties to the litigation at the time the agreed divorce decree was signed by the trial court. It appears that they became parties only when they filed a “motion to modify in suit affecting the parent-child relationship,” which constituted a new cause of action and proceeding under the family code. See generally Tex. Fam. Code Ann. § 156.003 (requiring service of citation on all parties whose rights and duties may be affected by a suit for modification); id. § 156.004 (“The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter.”); Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex. App.-Austin 2002, no pet.) (“Under the Family Code's statutory scheme, the legislature designated a suit to modify a SAPCR as a new cause of action. . . . [T]he original decree remains final and a new final order results from the modification proceeding.”).<br /><br />We conclude that section 157.421 confers standing to seek clarification only on persons that are parties to the order that is to be clarified or parties to the proceeding in which that order was signed. Grandparents do not allege that they satisfy either criterion, nor does anything in the record show that they satisfy them. Thus, we conclude that they did not have standing to seek clarification. We vacate the trial court's order insofar as it rules on their requests for clarification and dismiss this action as to them.<br /><br /><span style="font-size:85%;">SOURCE: Appellate opinion in 05-07-01712-CV (decided 2/6/09) (Dallas Court of Appeals vacates the trial court's order on the motion for clarification of obligation to pay for college to the extent the order pertains to the grandparents' requests for clarification, and dismisses all claims brought by grandparents)</span>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-21954705446674474202009-09-04T10:22:00.001-07:002009-09-04T10:33:56.292-07:00Standing based on statute vs. standing as a common-law doctrine<span style="color:#000099;">Standing is a general principle of law governing who may bring and maintain a lawsuit. As a general rule, it is rooted in the state's common law as reflected in appellate judicial decisions (case law precedents); but it can also be defined by statute, as is true in the case of child custody proceedings. Where the statute applies, the statutory standing requirements will be followed. </span><br /><br />STANDING DEFINED:<br /><br />Standing is a component of subject-matter jurisdiction. City of Heath v. Duncan, 152 S.W.3d 147, 150 (Tex. App.-Dallas 2004, pet. denied). As such, it cannot be waived and can be raised for the first time on appeal. Mazon Assocs., Inc. v. Comerica Bank, 195 S.W.3d 800, 803 (Tex. App.-Dallas 2006, no pet.). When we consider the issue of standing for the first time on appeal, we construe the petition in favor of the plaintiff and, if necessary, review the entire record to determine whether any evidence supports standing. Id. At common law, “[t]he issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome.” Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 853 (Tex. App.-Dallas 2008, no pet.).<br /><br />Alternatively, a statute may confer standing on a plaintiff, in which case the statute itself provides the framework for the standing analysis. Mazon Assocs., Inc., 195 S.W.3d at 803.<br /><br /><span style="font-size:85%;">SOURCE: Appellate opinion by the Dallas Court of Appeals in 05-07-01712-CV (grandparents lacked standing to bring suit for clarification of divorce decree provision governing college expenses) ("We conclude that section 157.421 confers standing to seek clarification only on persons that are parties to the order that is to be clarified or parties to the proceeding in which that order was signed. Grandparents do not allege that they satisfy either criterion, nor does anything in the record show that they satisfy them. Thus, we conclude that they did not have standing to seek clarification. We vacate the trial court's order insofar as it rules on their requests for clarification and dismiss this action as to them.") </span>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-73922949365443211192009-09-04T09:43:00.000-07:002009-09-04T10:12:30.727-07:00"Actual care, control, and possession" of the child as basis for non-parent's standing in SAPCR suit<span style="color:#000099;">A recent opinion from the Dallas Court of Appeals explains the concept of standing as a general legal principle, and standing for purposes of a child custody procedings in particular. In Texas, standing of grandparents and non-parents is defined by statute (Texas Family Code), and can be based on the child having lived with the petitioner. The magic language is "actual care control and possession" of the child. To get a better idea of what that means, one has to look at appellate opinions (case law). Below is an excerpt of a recent opinion of the Dallas Court of Appeals involving standing issues. Note that it points out that the standing rules can't be applied mechanically and that the application of the standing criteria depends on the specific facts in a particular case. That means that the trial court will have greater discretion than would otherwise be the case, and that the court's ruling will not be predictible. It also means that that the issue may not be easily resolved on appeal either. Different courts and judges may reach different conclusions as to whether the statutory standing requirements were met in a particular situation: </span><br /><br />A person seeking conservatorship of a child must have standing to bring suit. See In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.-San Antonio 2004, no pet.). A component of subject matter jurisdiction-which is a court's power to hear a case, standing is a constitutional prerequisite to maintaining a lawsuit under Texas law and focuses on who is entitled to bring an action. See Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993); In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.-Dallas 2008, no pet.).<br /><br />Standing exists by operation of law and cannot be conferred by waiver or estoppel. In re H.G., 267 S.W.3d 120, 124 (Tex. App.-San Antonio 2008, pet. denied) (op. on reh'g). Subject to two exceptions in the context of suits affecting the parent- child relationship (SAPCR), standing also cannot be conferred by consent. See Footnote 4 In re K.K.C., No. 09-09- 00131-CV, 2009 WL 2045331, *1 n.1 (Tex. App.-Beaumont July 16, 2009, no pet. h.); H.G., 267 S.W.3d at 124.<br /><br />In Texas, standing in the context of SAPCRs is governed by the family code, and a party seeking relief in such suits must plead and establish standing within the parameters of the language used in the code. See H.G., 267 S.W.3d at 124; see also Tex. Fam. Code Ann. §§ 102.003-.007.<br /><br />If a party fails to do so, the trial court must dismiss the suit. See In re C.M.C, 192 S.W.3d 866, 870 (Tex. App.-Texarkana 2006, no pet.). We review de novo a trial court's dismissal based on lack of standing. See Coons-Andersen v. Andersen, 104 S.W.3d 630, 633-34 (Tex. App.-Dallas 2003, no pet.); Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.-El Paso 2002, no pet.). Section 102.003(a)(9)<br /><br />To establish “actual care, control, and possession” as required by section 102.003(a)(9), the section under which K.V. asserts standing, the party must demonstrate (i) more than temporary or occasional possession, though it need not be exclusive, and (ii) more than the control “implicit in having care and possession of the child.” See K.K.C., 2009 WL 2045331, *3 (control); In re M.J.G., 248 S.W.3d 753, 758-59 (Tex. App.-Fort Worth 2008, no pet.) (control); Coons-Andersen, 104 S.W.3d at 634 (possession or access).<br /><br />To establish the six-month requirement of “actual care, control, and possession of the child” as required by section 102.003(a)(9), the party must demonstrate the child “principally resided” with him, though the residency of the child with the party need not be continuous and uninterrupted. See Tex. Fam. Code Ann. § 102.003(b); M.P.B., 257 S.W.3d at 808; Doncer, 81 S.W.3d at 362.<br /><br />Visitation in accordance with the Standard Possession Order found in section 153.312 of the family code may satisfy the standing requirement. See Doncer, 81 S.W.3d at 362. Whether a party satisfies the standing requirement under section 102.003(a)(9) is necessarily fact specific and determined on a case-by-case basis. M.P.B., 257 S.W.2d at 809.<br /><br />SOURCE: Dallas Court of Appeals opinion in 05-08-00568-CV (8/8/09)GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-58788483778380533992009-09-04T09:20:00.000-07:002009-09-04T09:42:30.178-07:00What is "standing" and "lack of standing"?<span style="color:#000099;"><strong>Quick answer:</strong> Something serious that may nix a pending or contemplated lawsuit without regard to the merits because the plaintiff (or the petitioner or intervenor in a child custody proceeding) did not have the right to bring the action or get involved in a pending proceeding.</span><br /><br /><span style="color:#000099;">In laymen's terms "standing" means that you can't get the judge to play umpire if you don't have a dog in the fight. Stated differently, you must have a real complaint against someone that a court can do something about under the law. Of course, such a general definition won't do for legal purposes. Nor is it enough for standing purposes to simply assert a claim or complaint. The right to make that claim must be recognized under the law. </span><br /><span style="color:#000099;"></span><br /><span style="color:#000099;">Here is how the Dallas Court of Appeals defined standing as a general principle. (Note that standing for grandparents and non-parents in suits affecting the parent-child relationship is governed by the Texas Family Code, i.e. by statute, rather than by general standing principles found in case law):</span><br /><br />Standing is a party's justiciable interest in a controversy. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996); Town of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex. App-Dallas 2008, no pet.). Without a breach of a legal right belonging to a plaintiff, that plaintiff has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.-Fort Worth 2001, pet. denied). Only the person whose primary legal right has been breached may seek redress for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.-Dallas 2005, no pet.). In reviewing standing on appeal, we construe the petition in favor of the plaintiff, and if necessary, review the entire record to determine if any evidence supports standing. See Tex. Air Control Bd., 852 S.W.2d at 446.<br /><br /><span style="color:#000099;">Lack of standing is a fundamental issue that is difficult, if not impossible, to fix. It can provide a basis for an order being thrown out on appeal if the trial court entered it in favor of a party who did not satisfy the standing requirement. Standing is treated as jurisdictional. When there is no jurisdiction, the hands of the judge are tied. All the court can do under such circumstances is dismiss the lawsuit, or the appeal, whichever applies, or to dismiss the party without standing (in a suit with multiple other parties). As put by the Dallas court, with citations to caselaw: </span><br /><br />Standing, a necessary component of subject matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). A standing defect cannot be waived and can be raised for the first time on appeal. Id. at 445-46. A party's standing to pursue a claim is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).<br /><br />SOURCE: Opinion of the Dallas Court of Appeals in 05-08-00038-CVGRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-42304726498940106852009-08-15T12:13:00.000-07:002009-08-15T12:25:52.187-07:00Affidavit of Relinquishment of Parental Rights as Basis for Termination of Parent-Child Relationship<span style="font-weight: bold; color: rgb(0, 0, 153);"><br />In addition to termination of parental rights based on a parent's abuse or neglect of the child, or other harmful conduct, termination can be based on a parent's voluntary relinquishment, subject to certain safeguards and to a judicial determination that the child's best interest is thereby served. </span><br /><br />Texas Family Code section 161.001 authorizes a trial court to terminate a parent-child relationship if the court finds by clear and convincing evidence that the parent has executed an unrevoked affidavit of relinquishment of parental rights, and termination is in the best interest of the child. Tex. Fam. Code Ann. § 161.001(1)(K), (2) (Vernon Supp. 2006). <p></p> <p style="margin-bottom: 0in;">A parent may designate a competent person, authorized agency, or licensed child-placing agency to serve as managing conservator of the child in an unrevoked or irrevocable affidavit of relinquishment of parental rights. Id. § 153.374(a) (Vernon 2002). “The person or agency designated to serve as managing conservator shall be appointed managing conservator unless the court finds that the appointment would not be in the best interest of the child.” Id. § 153.374(b); In re D.R.L.M., 84 S.W.3d 281, 300 (Tex. App.—Fort Worth 2002, pet. denied) (holding that trial court is not obligated to comply with appointment of managing conservator in affidavit of voluntary relinquishment of parental rights if trial court finds that appointment would not be in best interest of child), superseded by statute on other grounds, Tex. Fam. Code Ann. § 263.405(i) (Vernon Supp. 2006). “Section 153.374 clearly provides that in appointing a managing conservator in such cases, the trial court need not comply with the parent’s designation of a managing conservator if the designation is not in the [child’s] best interest.” Dep’t of Family & Protective Servs. v. Alternatives in Motion, 210 S.W.3d 794, 803 (Tex. App.—Houston [1st Dist.] 2006, pet. filed). “A direct or collateral attack on an order terminating parental rights based on an unrevoked affidavit of relinquishment of parental rights or affidavit of waiver of interest in a child is limited to issues relating to fraud, duress, or coercion in the execution of the affidavit.” Tex. Fam. Code Ann. § 161.211 (Vernon 2002).</p> <p style="margin-bottom: 0in;">SOURCE: Appellate Opinion in Appeal No. 01-05-01187-CV (First Court of Appeals in Houston)<br /></p><p style="margin-bottom: 0in;"><br /></p>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-84994564718855654592009-08-08T15:18:00.000-07:002009-08-08T15:48:04.922-07:00The Parental Presumption Trump Card<span style="font-weight: bold; color: rgb(0, 0, 153);"><br />Parents are entitled to decide and control who their kids will see and visit with.That includes aunts and uncles. Out-of-court conciliation efforts may be more appropriate under such circumstances because a judge is unlikely to grant any relief when the parents oppose contact sought by other family members, and may have her ruling reversed if she does enter an order to such effect. </span><br /><br /><span style="font-weight: bold; color: rgb(0, 0, 153);">When it comes to litigation, parents' rights generally trump those of other family members, not to mention neighbors and strangers; grandparents are given some legal rights, but also subject to significant conditions and restrictions, as explained in the following excerpt from a recent appellate opinion by Justice Angelini: </span><br /><br />In this case, the trial court noted that it had no statutory authority to appoint the appellants as possessory conservators since it was appointing the mother as managing conservator and the father as possessory conservator. In addition, the trial court noted that it had done its best to get the parties to cooperate with each other in the best interest of J.O. Furthermore, the trial court observed that the communication between the parties had completely broken down, even with regard to J.O.'s medical needs.<p></p> <p style="margin-bottom: 0in;">"[T]he Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 66 (2000); see also In re Pensom, 126 S.W.3d 251, 254 (Tex. App.--San Antonio 2003, orig. proceeding). </p> <p style="margin-bottom: 0in;">The Texas Legislature has recognized this fundamental right by creating a presumption in favor of the parents being appointed as both managing conservator and possessory conservator. Tex. Fam. Code Ann. §§ 153.131, 153.191 (Vernon 2002). Encompassed within this well-established fundamental right of parents to raise their children is the right to determine with whom their children should associate. In re Pensom, 126 S.W.3d at 254. </p> <p style="margin-bottom: 0in;">Although the Legislature has provided a means by which a grandparent is permitted to request access to a child, no similar provision permits the aunt of a child to request such access. See Tex. Fam. Code Ann. § 153.432 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 255 (noting Legislature's intent to limit a court's jurisdiction over non-parental intrusion by allowing only grandparents to petition for access). </p> <p style="margin-bottom: 0in;">Even in a case in which a grandparent requests access, access is only available where "the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007); see also In re Pensom, 126 S.W.3d at 256 (noting trial court must accord significant weight to a fit parent's decision about the third parties with whom his or her child should associate). </p> <p style="margin-bottom: 0in;">Although appellants assert that the Family Code contains no provision limiting the right of an aunt or uncle to seek access, appellants fail to cite any authority that would permit a trial court to grant such access given the fundamental right J.O.'s mother had to determine with whom J.O. should associate. See In re Pensom, 126 S.W.3d at 254.<br /></p> <p style="margin-bottom: 0in;">Based on the foregoing, the trial court did not err in denying appellants access. Appellants' fifth issue is overruled. ... The trial court's judgment is affirmed.</p> <p style="margin-bottom: 0in;">SOURCE: Appellate opinion in 04-07-00752-CV (San Antonio)<br /></p><p style="margin-bottom: 0in;"><span class="text"><span style="font-size: 14px; line-height: 17px;"><span style="font-weight: bold;">The parental presumption as stated in the Texas Family Code provides:</span><br /><br />. . . unless the court finds that appointment of the parent or parents would not be in the best <br />interest of the child because the appointment would significantly impair the child’s physical health or <br />emotional development, a parent shall be appointed sole managing conservator or both parents <br />shall be appointed as joint managing conservators of the child. Tex. Fam. Code §153.131(a). <br /></span></span></p><p style="margin-bottom: 0in;"><br /><span class="text"><span style="font-size: 14px; line-height: 17px;"></span></span></p>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-6557716776178995982009-08-08T14:46:00.000-07:002009-08-08T15:15:57.960-07:00PARENTAL PREFERENCE: A fundamental policy grounded in constitutional and statutory law<span style="font-weight: bold; color: rgb(0, 0, 153);"><br /><span style="color: rgb(204, 0, 0);">PREFERENCE FOR PARENTS TO RAISE THEIR CHILDREN MEANS THAT </span><a style="color: rgb(204, 0, 0);" href="http://grandparents-and-the-law.blogspot.com/search/label/best%20interest%20standard">BEST-INTEREST FACTORS</a><span style="color: rgb(204, 0, 0);"> ALONE DO NOT JUSTIFY TRANSFERRING PARENTAL RIGHTS TO NON-PARENTS.</span> </span> <p style="margin-bottom: 0in; font-weight: bold;"><span style="color: rgb(0, 0, 128);">As a matter of fundamental principle, the law recognizes that parents have the right to raise their own children, and thus favors giving preference to parents over non-parents in case of a dispute. Non-parents must thus meet a higher standard than merely showing that they would do a better job caring for the kids, or that their appointment as managing conservators by the court would serve the best interest of the child. As a general proposition the law presumes that children are best off being raised by their own parents and that the parents are up to the task. A nonparent would have the burden to show otherwise.<br /></span></p><p style="margin-bottom: 0in;"><span style="color: rgb(0, 0, 128);"><span style="font-weight: bold;">Because of this presumption, the relevant question in a dispute between parents and nonparents is not </span><span style="font-style: italic; font-weight: bold;">Who can best care for these kids?</span><span style="font-weight: bold;"> Instead, the question is: </span><span style="font-style: italic; font-weight: bold;">Is there anything seriously wrong with the parents and the job they are doing raising these kids? Do the children suffer abuse, neglect, or some other harm or risk of harm for which the parents are responsible</span><span style="font-weight: bold;">?<br /></span></span></p><p style="margin-bottom: 0in;"><span style="color: rgb(0, 0, 128);"><span style="font-weight: bold;">In addition, any person claiming an interest in the child's well-being and seeking right of access or custody of the child in court must have <a href="http://grandparents-and-the-law.blogspot.com/search/label/standing">legal standing</a> to do so, a topic covered elsewhere on this blog. </span><br /></span></p> <p style="margin-bottom: 0in; font-weight: bold;"><span style="color: rgb(0, 0, 128);">Statutory law and case law define the standard a nonparent has to meet (assuming the nonparent has standing) to overcome the parental preference (also referred to as parental presumption) with greater specificity.</span></p><p style="margin-bottom: 0in; font-weight: bold;">Legal Standard for Nonparent Custody ("managing conservatorship” in Texas) </p> <p style="margin-bottom: 0in;">Family Code section 153.131(a) provides for the appointment of the parent as sole managing conservator or the parents as joint managing conservators, unless the court finds the appointment would not be in the best interest of the child because it would significantly impair the child’s physical health or emotional development. Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002). </p> <p style="margin-bottom: 0in;">For the court to award managing conservatorship to a non-parent under section 153.131, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.). </p> <p style="margin-bottom: 0in;">Evidence must be presented to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. This link between the parent’s conduct and harm to the child may not be based on evidence that merely raises a surmise or speculation of possible harm. Id. When a non-parent and a parent are both seeking managing conservatorship, “close calls” go to the parent. Id.</p> <p style="margin-bottom: 0in;">An adult’s future conduct may be somewhat determined by recent past conduct. In and of itself, however, evidence of past misconduct may not be sufficient to show present unfitness. Id. Further, it is wholly inadequate simply to present evidence that a non-parent would be a better choice as custodian of the child. Id. (citing Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)). The non-parent must offer evidence of 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. Id. Specific acts or omissions of a parent implicating a significant impairment to a child’s emotional development may be inferred from direct evidence. Id.</p> <p style="margin-bottom: 0in;">SOURCE: Appellate Opinion of the First Court of Appeals in No. <a href="http://www.1stcoa.courts.state.tx.us/opinions/case.asp?FilingID=90403"><u>01-07-00571-CV</u></a></p><p style="margin-bottom: 0in;"><a href="http://www.1stcoa.courts.state.tx.us/opinions/case.asp?FilingID=90403"><u><span style="font-size:78%;">Taylor v. Taylor, 254 S.W.3d 527 (Tex.App.- Houston [1st Dist.] March 20, 2009)</span><br /></u></a></p> <p style="margin-bottom: 0in;"><span style="font-size:78%;"><br /></span> </p>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-62331094382755919492009-08-07T17:48:00.001-07:002009-08-07T18:04:31.344-07:00What is the Role of an Amicus Attorney in a Texas Child Custody Case?<style type="text/css"> <!-- @page { size: 8.5in 11in; margin: 0.79in } P { margin-bottom: 0.08in } --> </style> <p style="margin-bottom: 0in; font-weight: bold; color: rgb(204, 0, 0);"><span style="font-size:100%;">THE ROLE OF AN AMICUS ATTORNEY IN A SAPCR</span></p> <p style="margin-bottom: 0in; font-weight: bold; color: rgb(0, 0, 153);">In a <a href="http://grandparents-and-the-law.blogspot.com/search/label/SAPCR">suit affecting the parent-child relationship [SAPCR]</a>, an amicus attorney may be appointed to assist the trial court in determining <a href="http://grandparents-and-the-law.blogspot.com/search/label/best%20interest%20standard">the best interests of the child</a>. For the purposes of such a suit, the role of an “amicus attorney" is defined by statute as follows: </p> <p style="margin-bottom: 0in; font-weight: bold; color: rgb(0, 0, 153);">“Amicus attorney" means an attorney appointed by the court in a suit, other than a suit filed by a governmental entity, whose role is to provide legal services necessary to assist the court in protecting a child's best interests rather than to provide legal services to the child.</p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">Tex. Fam. Code Ann. § 107.001(1); see also O'Connor v. O'Connor, ___ S.W.3d ___ , No. 01-06-00445-CV, 2007 WL 1440990, at *4 (Tex. App.- Houston [1st Dist.] May 17, 2007, no pet. h.) (“Because the amicus attorney is 'to provide legal services to assist the court,' the trial court is, in effect, the amicus attorney's client for a limited purpose. But the trial court is not a party . . . .").<br /></span></p><p style="margin-bottom: 0in;"><span style="font-size:85%;"><span style="font-weight: bold;font-size:100%;" >AMICUS ATTORNEYS IN TX COURTS: THEIR STATUTORY JOB DESCRIPTION </span><br /></span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">The Texas Family Code explains the role and duties of an amicus attorney in some detail:</span></p><p style="margin-bottom: 0in;"><span style="font-size:85%;">An . . . amicus attorney appointed to assist the court:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(1) shall:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(A) subject to Rules 4.02, 4.03, and 4.04, Texas Disciplinary Rules of Professional Conduct, and within a reasonable time after the appointment, interview:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(i) the child in a developmentally appropriate manner, if the child is four years of age or older;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(ii) each person who has significant knowledge of the child's history and condition, including any foster parent of the child; and</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(iii) the parties to the suit;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(B) seek to elicit in a developmentally appropriate manner the child's expressed objectives of representation;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(C) consider the impact on the child in formulating the attorney's presentation of the child's expressed objectives of representation to the court;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(D) investigate the facts of the case to the extent the attorney considers appropriate;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(E) obtain and review copies of relevant records relating to the child as provided by Section 107.006;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(F) participate in the conduct of the litigation to the same extent as an attorney for a party;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(G) take any action consistent with the child's interests that the attorney considers necessary to expedite the proceedings;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(H) encourage settlement and the use of alternative forms of dispute resolution; and</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(I) review and sign, or decline to sign, a proposed or agreed order affecting the child;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(2) must be trained in child advocacy or have experience determined by the court to be equivalent to that training; and</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(3) is entitled to:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(A) request clarification from the court if the role of the attorney is ambiguous;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(B) request a hearing or trial on the merits;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(C) consent or refuse to consent to an interview of the child by another attorney;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(D) receive a copy of each pleading or other paper filed with the court;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(E) receive notice of each hearing in the suit;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(F) participate in any case staffing concerning the child conducted by an authorized agency; and</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(G) attend all legal proceedings in the suit.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">Tex. Fam. Code Ann. § 107.003. </span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">In addition to these duties listed above, the following responsibilities are imposed upon an amicus attorney:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(a) Subject to any specific limitation in the order of appointment, an amicus attorney shall advocate the best interests of the child after reviewing the facts and circumstances of the case. Notwithstanding Subsection (b), in determining the best interests of the child, an amicus attorney is not bound by the child's expressed objectives of representation.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(b) An amicus attorney shall, in a developmentally appropriate manner:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(1) with the consent of the child, ensure that the child's expressed objectives of representation are made known to the court;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(2) explain the role of the amicus attorney to the child;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(3) inform the child that the amicus attorney may use information that the child provides in providing assistance to the court; and</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(4) become familiar with the American Bar Association's standards of practice for attorneys who represent children in custody cases.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(c) An amicus attorney may not disclose confidential communications between the amicus attorney and the child unless the amicus attorney determines that disclosure is necessary to assist the court regarding the best interests of the child.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">Id. § 107.005. </span></p> <p style="margin-bottom: 0in; font-weight: bold;"><span style="font-size:100%;">THE FUNCTION OF THE AMICUS ATTORNEY IN THE FAMILY COURT SYSTEM IS TO ASSIST THE COURT </span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">O'Connor, 2007 WL 1440990, at *4 (“The amicus attorney is appointed specifically to assist the court. and the plain language of the statutory definition of amicus attorney can mean only that the amicus attorney assists the court that appointed [the amicus attorney.]") </span></p> <p style="margin-bottom: 0in; font-weight: bold;"><span style="font-size:100%;">WHAT IS THE SCOPE OF A TRIAL JUDGE'S POWER TO APPOINT AN AMICUS ATTORNEY (AND OTHER PROFESSIONALS) IN A SAPCR</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">A trial court's powers to make discretionary appointments are addressed in section 107.021 of the Texas Family Code:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(a) In a suit in which the best interests of a child are at issue, . . . the court may appoint one of the following:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(1) an amicus attorney;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(2) an attorney ad litem; or</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(3) a guardian ad litem.</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">. . .</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(b) In determining whether to make an appointment under this section, the court:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(1) shall:</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(A) give due consideration to the ability of the parties to pay reasonable fees to the appointee; and</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(B) balance the child's interests against the cost to the parties that would result from an appointment by taking into consideration the cost of available alternatives for resolving issues without making an appointment;</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(2) may make an appointment only if the court finds that the appointment is necessary to ensure the determination of the best interests of the child, unless the appointment is otherwise required by this code; and</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">(3) may not require a person appointed under this section to serve without reasonable compensation for the services rendered by the person.[16]</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">Tex. Fam. Code Ann. § 107.021</span></p> <p style="margin-bottom: 0in;"><span style="font-size:85%;">SOURCE: In re Collins, No. 14-07-00624-CV, 242 S.W.3d 837 (Tex.App.- Houston [14th Dist.] Dec 17, 2007)</span></p> <span style="font-size:85%;"><br /><span style="font-weight: bold;">RELATED CONCEPTS</span>: AD-LITEM ATTORNEY FOR THE CHILD, GUARDIAN AD LITEM, ATTORNEY AD LITEM, NEXT FRIEND<br /><br /><br /></span>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-16766886473131948802009-08-07T16:51:00.000-07:002009-08-07T17:21:07.445-07:00Exclusion of Witness Testimony on Childrens' Best Interest in SAPCR<span style="color: rgb(0, 0, 153);font-size:100%;" ><span style="font-weight: bold;"><br />Family Court Judges should not exclude best-interest evidence lightly in SAPCR proceeding, Court of Appeals Says.<br /></span></span><p></p> <p style="margin-bottom: 0in; color: rgb(0, 0, 153);">The Texas Legislature has accorded “the best interest of the child” primary importance in the adjudication of child custody disputes and visitation and access issues. Trial judges who hear custody matters are expected to give effect to this policy in their decisionmaking, including their rulings involving procedure and presentation and admission of evidence. As seen in a recent appeal from a SAPCR case tried to a jury in Galveston county, courts of appeals take a dim view of a trial court judge denying a party the right to call witnesses and present evidence on the best interest of the child. In the Galveston case, in which the grandparents sought custody, the trial court had not allowed one of the parents to present any evidence other than his own testimony because he had not brought his trial exhibits and witness list to the pretrial conference. The Court of Appeals found this omission was not a good-enough reason to prevent the introduction of evidence that might a shed more light on what was really best for the children.</p> <p style="margin-bottom: 0in; font-style: italic;">[A SAPCR in Texas refers to a suit affecting the parent-child relationship, otherwise know as a child custody/visitation suit.]</p><br />AN EXCERPT FROM THE OPINION FOLLOWS: <p style="margin-bottom: 0in;">[T]he sanctions imposed in this case are difficult to reconcile with the legislative mandate that “the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Tex. Fam. Code Ann. § 153.002 (Vernon 2002). </p> <p style="margin-bottom: 0in;">Texas courts have recognized that regard for the best interest of the child properly may be a factor influencing a trial court’s ruling on procedural issues such as discovery sanctions. See In re P.M.B., 2 S.W.3d 618, 624 (Tex. App.—Houston [14th Dist.] 1999, no pet.) (reversing trial court’s exclusion of evidence as discovery sanction under former Rule of Civil Procedure 215(5) in conservatorship case); see also In re C.H., No. 07-04-0428-CV, 2006 WL 3813751, at *2 (Tex. App.—Amarillo Dec. 28, 2006, no pet.) (mem. op.) (affirming, in conservatorship case, trial court’s ruling allowing late-disclosed witness to testify based on best interest of child).</p> <p style="margin-bottom: 0in;">We agree with the Fourteenth Court of Appeals that “the best interest of a child can only be attained when a court’s decision is as well-informed as the circumstances allow.” P.M.B., 2 S.W.3d at 624–25; In re N.R.C., 94 S.W.3d 799, 810 (Tex. App.—Houston [14 Dist.] 2002, pet. denied) (noting, “[T]o silence witnesses whose testimony is probative of the child’s best interest is to do a disservice to the child.”). We also agree with the following reasoning,</p> <p style="margin-bottom: 0in;">A decision on custody, possession, or access can rarely be well-informed without consideration of the evidence and perspectives of both [parties]. Because the exclusion of any important evidence as a discovery sanction can only produce a less-informed decision, contrary to the best interest of the child, we believe that it should be resorted to only where lesser sanctions are either impracticable or have been attempted and proven unsuccessful. P.M.B., 2 S.W.3d at 625.</p> <p style="margin-bottom: 0in;">Here, the jury’s conservatorship decision could not have been well-informed, and thus in the best interest of the children, without the jury first considering Joseph’s evidence. We conclude that the trial court’s sanction imposed in this case was excessive. Accordingly, we hold that the trial court abused its discretion by prohibiting Joseph from presenting non-party witnesses and tangible evidence at trial.</p> <p style="margin-bottom: 0in;">We may reverse only if the trial court’s sanctions probably caused rendition of an improper judgment or probably prevented the appellant from properly presenting the case to this court. See Tex. R. App. P. 44.1(a). Here, the harm caused by Joseph’s inability to present any evidence in defense of the SAPCR suit is patent. </p> <p style="margin-bottom: 0in;">We agree with other courts that precluding a party from calling any fact witnesses and offering any tangible evidence is tantamount to a death penalty sanction. See N.R.C., 94 S.W.3d at 810 (concluding that striking of all of mother’s fact witnesses was death penalty sanction); P.M.B., 2 S.W.3d at 624 (noting that exclusion of evidence is extreme penalty akin to striking of pleadings). By precluding Joseph from presenting any evidence at trial, other than his own testimony, the trial court eviscerated Joseph’s ability to present effectively the merits of his defense. See N.R.C., 94 S.W.3d at 810.</p> <p style="margin-bottom: 0in;">Moreover, though Joseph’s counsel explained to the jury why he was not allowed to call any witnesses or present evidence, the jury likely drew negative inferences from Joseph’s failure to either comply with the trial court’s pretrial order or present evidence. See id. It is reasonable to assume that, without fact or expert witnesses to corroborate his own testimony, Joseph suffered prejudice in the eyes of jury. See id.</p> <p style="margin-bottom: 0in;">For these reasons, we hold that, on the record presented, the sanction imposed in this case probably caused the rendition of an improper judgment, which requires reversal. See Tex. R. App. P. 44.1(a).</p> <p style="margin-bottom: 0in;">We sustain Joseph’s seventh issue.</p><span class="text" style="font-size:85%;"><span style="line-height: 17px;"><br /></span><a href="http://www.houston-opinions.com/files/1stCoA-2008-Taylor-v-Taylor-by-Higley-SAPCR-grandparent-custody.mht"><span style="line-height: 17px;">Taylor v. Taylor</span></a><span style="line-height: 17px;"> (<a href="http://www.houston-opinions.com/1stCoA-2008-March.html">Tex.App.- Houston [1st Dist.] Mar. 20, 2008</a>)<br />(</span><a href="http://www.houston-opinions.com/Texas-family-law-cases-case-law.html"><span style="line-height: 17px;">family law, SAPCR</span></a><span style="line-height: 17px;">, </span><a href="http://www.houston-opinions.com/Texas-grandparent-SAPCR-suits-access-cases-case-law.html"><span style="line-height: 17px;">grandparent custody</span></a><span style="line-height: 17px;">, exclusion of evidence, </span><a href="http://www.houston-opinions.com/Texas-sanctions-cases-case-law.html"><span style="line-height: 17px;">sanctions, consideration of best interest</span></a><span style="line-height: 17px;">)<br />DECISION ON APPEAL: REVERSE TRIAL COURT JUDGMENT AND REMAND CASE TO TRIAL COURT FOR FURTHER PROCEEDINGS:<br />Panel opinion written by Justice Laura Carter Higley<br />Appellate Cause Number: No. </span><a href="http://www.1stcoa.courts.state.tx.us/opinions/case.asp?FilingID=90403"><span style="line-height: 17px;">01-07-00571-CV</span></a><span style="line-height: 17px;"><br />Case Style: Joseph Ray Taylor v. Kevin Taylor and Cheryl Taylor<br />Appeal from 306th District Court of Galveston County<br /><br /></span></span>GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0tag:blogger.com,1999:blog-2786060346148331828.post-66793605746658736572009-07-29T11:40:00.000-07:002009-07-29T11:58:25.696-07:00Best Interest of the Child in Texas: The Holley v. Adams Factors<span style="font-weight: bold; color: rgb(0, 0, 153);"><br />The best interest of the child is an important consideration for judicial decisionmaking in the area of child custody and visitation. It is also part of the criteria in termination of parental rights proceedings. While the best-interests test is well-known, it is also rather broad and subject to different interpretations. Just what does it mean, and how is it implemented in the courts of this state? The Texas Supreme Court added greater specificity in its much-cited opinion in <span style="color: rgb(255, 0, 0);font-size:100%;" >Holley v. Adams</span> by providing a list of considerations for the judge to apply and hear evidence on. These are known as the <span style="color: rgb(255, 0, 0);">Holley v. Adams factors</span> and can be thought of as guidelines. Judges hearing cases involving minor children retain a large amount of discretion and may consider evidence that does not necessarily fit well into any one of the categories. </span><br /><br /><span style="font-weight: bold;">The Best Interest of the Children Standard in Texas</span><br /><br />Nonexclusive factors that the trier of fact in a termination case may use in determining the best interest of the child include<br /><br />(1) the desires of the child,<br /><br />(2) the emotional and physical needs of the child now and in the future,<br /><br />(3) the emotional and physical danger to the child now and in the future,<br /><br />(4) the parental abilities of the individuals seeking custody,<br /><br />(5) the programs available to assist these individuals to promote the best interest of the child,<br /><br />(6) the plans for the child by these individuals or by the agency seeking custody,<br /><br />(7) the stability of the home or proposed placement,<br /><br />(8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one, and<br /><br />(9) any excuse for the acts or omissions of the parent.<br /><br />Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); In re M.N.G., 147 S.W.3d 521, 539 (Tex. App._Fort Worth 2004, pet. denied). <br /><br />These factors are not exhaustive. Some listed factors may be inapplicable to some cases; other factors not on the list may also be considered when appropriate. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539. Furthermore, undisputed evidence of just one factor may be sufficient in a particular case to support a finding that termination is in the best interest of the child. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539. On the other hand, the presence of scant evidence relevant to each Holley factor will not support such a finding. C.H., 89 S.W.3d at 27; M.N.G., 147 S.W.3d at 539.<br /><br />In addition to the above, a parent's inability to provide adequate care for the child, lack of parenting skills, poor judgment, and repeated instances of immoral conduct may also be considered when looking at the child's best interest. In re C.A.J., 122 S.W.3d 888, 893 (Tex. App.- Fort Worth 2003, no pet.).GRANDPARENT CASE LAW MONITORhttp://www.blogger.com/profile/11058185122301656094noreply@blogger.com0