In re A.D.T.

588 S.W.3d 312

In the INTEREST OF A.D.T., a Child

No. 07-19-00142-CV

Court of Appeals of Texas, Amarillo.

October 16, 2019

Lorna McMillion, for Appellant.

Anna McKim, Lubbock, for Appellee.

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Judy C. Parker, Justice

Appellant, Cassidy Reyna, appeals the trial court's order modifying its March 19, 2014 conservatorship order to appoint A.D.T.'s paternal grandparents, Ronald and Metta Perry, joint managing conservators with the exclusive right to designate the primary residence of the child. Cassidy challenges the Perrys' standing to bring suit and contends that there was no evidence that the child's circumstances had materially and substantially changed. We modify the judgment and affirm.

Factual and Procedural Background

Since Cassidy's issues relate to the sufficiency of the evidence, the factual and procedural background will be more fully explored in the analysis below. However, we will provide some basic context here.

On March 19, 2014, the trial court entered an order, following the filing of a petition by the Attorney General, that named Cassidy managing conservator of A.D.T. with the exclusive right to determine the child's primary residence. At the time that this order was entered, A.D.T. was approximately one-and-a-half years old and Cassidy and A.D.T. resided in Lubbock. Cassidy and A.D.T. remained in Lubbock for approximately one year after the 2014 order was entered. They then moved to Post, where they resided with Cassidy's brother for approximately a year. However, in the eleven months following Cassidy's residence in Post, she and A.D.T. moved multiple times, staying with family or in shelters. In addition, Cassidy dated multiple men with violent criminal histories and allowed many of these men to have contact with A.D.T. In 2016, A.D.T. began exhibiting outbursts and became defiant to staff at one of the shelters. Children's Protective Services began an investigation and developed a safety plan for Cassidy in November of 2016.

On January 19, 2017, the Perrys filed their petition seeking modification of A.D.T.'s conservatorship. By their petition, the Perrys alleged standing as grandparents and sought modification of the prior order based on a material and substantial change in A.D.T.'s circumstances since the previous conservatorship order. See TEX. FAMILY CODE ANN. §§ 102.004 (West 2019), 156.101 (West 2014). By their petition, the Perrys sought to be named as the party with the exclusive right to determine A.D.T.'s primary residence. The trial court entered temporary orders that granted the Perrys the right to establish the child's residence, while affording the child's biological parents the right to supervised visitation. After holding a final hearing, the trial court issued its final order which named the parties joint managing conservators with the Perrys retaining the right to determine A.D.T.'s primary residence and Cassidy continuing under supervised visitation. Subsequently, Cassidy filed motions to vacate the judgment for lack of standing and for new trial. After these motions were overruled by operation of law, Cassidy timely filed notice of appeal.

Cassidy presents two issues in her appeal. By her first issue, she contends that the trial court erred in failing to dismiss the modification because the Perrys lacked standing under the standard required by the Texas Family Code. She contends, by her second issue, that the trial court abused its discretion by finding a material and substantial change in A.D.T.'s circumstances.

Issue One: Standing

By her first issue, Cassidy contends that the trial court erred in not dismissing the Perrys' modification petition on the basis that the Perrys lacked standing under Family Code section 102.004. As applicable to the present case, to have standing, the Perrys must show that modification "is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development...." TEX. FAMILY CODE ANN. § 102.004(a)(1).

Standing is implicit in the concept of subject matter jurisdiction and is a threshold issue in a child custody proceeding. In re SSJ-J , 153 S.W.3d 132, 134 (Tex. App.—San Antonio 2004, no pet.). Whether a party has standing to pursue a cause of action is a question of law that we review de novo. Mauldin v. Clements , 428 S.W.3d 247, 262 (Tex. App.—Houston [1st Dist.] 2014, no pet.) ; In re SSJ-J , 153 S.W.3d at 134. The party asserting standing bears the burden of proving that issue. In re S.M.D. , 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet. dism'd).

In assessing standing, a reviewing court should look to the pleadings but may consider relevant evidence of jurisdictional facts when necessary to resolve the jurisdictional issues raised. Bland Indep. Sch. Dist. v. Blue , 34 S.W.3d 547, 555 (Tex. 2000). In the present modification case, we must review the entire record for satisfactory proof that the child's circumstances would significantly impair his physical or emotional well-being.¹ In re S.M.D. , 329 S.W.3d at 13. This is accomplished by the petitioner showing evidence of predicate facts that existed at the time the petition was filed and that are proven by a preponderance of the evidence. Id. When, as here, the trial court does not enter findings of fact and conclusions of law, the reviewing court implies the findings that are necessary to support the judgment and reviews the entire record to determine whether these implied findings are supported by any evidence. Id.

To establish standing, the Perrys had to show that a modification of A.D.T.'s conservatorship "is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development...." TEX. FAMILY CODE ANN. § 102.004(a)(1). This significant impairment language creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent. Lewelling v. Lewelling , 796 S.W.2d 164, 166-67 (Tex. 1990). Standing is not sufficiently established by proof that the nonparent would simply be a better custodian than the parent. Id. at 167. For a nonparent to overcome the presumption that it is in the child's best interest to be in a parent's custody, there must be evidence of specific and identifiable conduct by the parent that is likely to cause harm to the child's physical health or emotional development. Gray v. Shook , 329 S.W.3d 186, 196 (Tex. App.—Corpus Christi 2010), aff'd in part and rev'd in part by , Shook v. Gray , 381 S.W.3d 540 (Tex. 2012) (per curiam). Because of the fact-intensive nature of reviewing custody issues, an appellate court must afford great deference to the factfinder on issues of credibility and demeanor because the child's and parent's behavior, experiences, and circumstances are conveyed through words, emotions, and facial expressions that are not reflected in the record. Chavez v. Chavez , 148 S.W.3d 449, 458 (Tex. App.—El Paso 2004, no pet.).

When no findings of fact or conclusions of law are made, the reviewing court must presume the trial court made all fact findings necessary to support its judgment. Garcia v. Gomez , No. 07-06-00403-CV, 2008 WL 5050297, at *1-2, 2008 Tex. App. LEXIS 8897, at *3-4 (Tex. App.—Amarillo Nov. 26, 2008, no pet.) (mem. op.) (citing Zac Smith & Co. v. Otis Elevator Co. , 734 S.W.2d 662, 667 (Tex. 1987) ). No findings of fact or conclusions of law were requested or made in the present case. A reviewing court must uphold these implied findings if they are supported by the record and correct under any theory of law applicable to the case. Marrs & Smith P'ship v. D.K. Boyd Oil & Gas Co. , 223 S.W.3d 1, 21 (Tex. App.—El Paso 2005, pet. denied). In deciding whether some record evidence supports the implied findings, "it is proper to consider only that evidence most favorable to the issue and to disregard entirely that which is opposed to it or contradictory in its nature." Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) (quoting Renfro Drug Co. v. Lewis , 149 Tex. 507, 235 S.W.2d 609, 613 (1950) ). However, when the record includes a reporter's record, the sufficiency of the evidence supporting the implied findings of fact may be challenged. Garcia , 2008 WL 5050297, at *1-2, 2008 Tex. App. LEXIS 8897, at *4 (citing BMC Software Belgium, N.V. v. Marchand , 83 S.W.3d 789, 795 (Tex. 2002) ).

In the present case, the record reflects that, at the time of the March 19, 2014 order, A.D.T. was approximately a year-and-a-half old, Cassidy and A.D.T.'s father were separated, and Cassidy and A.D.T. lived in Lubbock. According to Cassidy's testimony, she and A.D.T. resided in Lubbock for a year after the March 19, 2014 order was entered. Cassidy and A.D.T. then moved to Post where they lived for another year. At this point, Cassidy began moving A.D.T. regularly. Cassidy admitted to moving at least seven times between the March 19, 2014 order and the filing of the Perry's modification petition, including living in, at least, five different shelters. However, when we consider the evidence that is most favorable to the trial court's implied finding that Cassidy moved A.D.T. excessively, we see that, according to her own testimony, she moved the child at least nine times during that eleven-month period.² Further, because Cassidy never owned or leased any of the places in which she stayed, she and A.D.T. were subject to the whims of the owner of these residences regarding whether and for how long they could stay, which increased A.D.T.'s instability. From October of 2016 to January of 2017, Cassidy had A.D.T. stay with two workers at the shelter. Because of these additional placements, A.D.T. stayed at two more places during this eleven-month period, bringing the total number of places he stayed to at least eleven. "[T]he state maintains a paramount interest in fostering a stable home environment for children." In re Marriage of Chandler , 914 S.W.2d 252, 254 (Tex....