In re H.E.B.

IN THE INTEREST OF H.E.B., A CHILD

No. 07-17-00351-CV

Court of Appeals Seventh District of Texas at Amarillo

January 31, 2018

On Appeal from the 223rd District Court Gray County, Texas

Trial Court No. 38,336, Honorable Phil N. Vanderpool, Presiding

MEMORANDUM OPINION

Before CAMPBELL and PIRTLE and PARKER, JJ.

Appellant, the father, appeals the final order rendered in a suit affecting his parent-child relationship with his child, H.E.B.¹ Appellee, the Texas Department of Family and Protective Services, filed suit and the case proceeded to final hearing before a jury on the issue of conservatorship. Following the jury's verdict, the trial court rendered judgment appointing H.E.B.'s maternal grandmother sole managing conservator and appointing thefather and the child's mother possessory conservators. We will overrule each of the father's four issues and affirm the trial court's final order.

Background

The father and the mother were never married but lived together before H.E.B.'s birth. The child was born prematurely in December 2015, and at birth tested positive for methamphetamine. When questioned by a Department investigator, the mother admitted she ingested methamphetamine three days before H.E.B.'s birth.²

Because of the mother's admitted drug use, the Department obtained temporary managing conservatorship of H.E.B. in January 2016. H.E.B. remained hospitalized for six weeks. He was then placed with his maternal grandparents, M.W. (grandfather) and S.W. (grandmother), and remained in their care until the time of final hearing. M.W. is the pastor of a church while S.W. is a caseworker for the Department.³

In January 2016, the Department filed suit for protection of H.E.B., conservatorship, and termination of the parent-child relationship. The father's paternity was established at a June 2016 hearing. During the pendency of the SAPCR, the father was granted weekly two-hour visitation sessions with H.E.B, supervised by the father's sister.

In January 2017, M.W. and S.W. intervened in the SAPCR seeking appointment as H.E.B.'s managing conservators, and the case was tried on this issue. At the final hearing, the Department called the father adversely and he was questioned at length by the Department, the other parties, and his own counsel. At several points during the final hearing the father spoke out in open court, without the court's permission. The father returned to the witness stand for testimony during his case-in-chief. While testifying, he volunteered information that the court previously excluded. As a sanction, the court ruled the father could give no further testimony. Without additional comment, the father responded to the trial court's ruling, "Yes, sir." Following the close of evidence, responding to a single question, the jury found S.W. should be appointed H.E.B.'s sole managing conservator. The final order followed the verdict and included the court's order appointing the father and the mother H.E.B.'s possessory conservators. The final order removed the Department as H.E.B.'s temporary managing conservator and released it from further obligation arising under that status.

Analysis

Factual Sufficiency of the Evidence

In his first issue, the father asserts the evidence was factually insufficient to rebut the presumption that he should be named H.E.B.'s managing conservator. The father preserved this complaint through a motion for new trial which apparently was overruled by operation of law.

In the jury trial of a suit affecting the parent-child relationship, the role of the jury is addressed by Family Code section 105.002. Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002).In part, this section provides a party is entitled to a jury verdict on appointment of a child's sole managing conservator. TEX. FAM. CODE ANN. § 105.002(c)(1)(A) (West Supp. 2017). The trial court may not contravene the jury's verdict on sole managing conservatorship. Id. When determining conservatorship between a parent and a nonparent, "a presumption exists that appointing the parent as the sole managing conservator is in the child's best interest; this presumption is deeply embedded in Texas law." In re M.J.C.B., Jr. and M.C.B., No. 11-14-00140-CV, 2014 Tex. App. LEXIS 12387, at *3 (Tex. App.—Eastland Nov. 14, 2014, no pet.) (mem. op.) (citing TEX. FAM. CODE ANN. § 153.131; Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)). The presumption may be rebutted with evidence proving that appointing the parent as managing conservator would significantly impair the child's physical health or emotional development. In re M.J.C.B., Jr. and M.C.B., 2014 Tex. App. LEXIS 12387, at *3. The presumption is subject to the prohibition in section 153.004 involving a history of domestic violence. In re M.F.M., No. 07-16-00117-CV, 2017 Tex. App. LEXIS 10710, at *4-5 n.5 (Tex. App.—Amarillo Nov. 14, 2017, n. pet. h.) (per curiam, mem. op.).

In the present case, the jury was asked through a single question whether, by a preponderance of the evidence, the father or S.W. should be appointed H.E.B.'s sole managing conservator. Accompanying instructions informed the jury that a parent must be appointed permanent managing conservator of his child unless the appointment would not be in the child's best interest because it would significantly impair the child's physical health or emotional development. A second instruction directed the jury to consider evidence of the intentional use of abusive physical force, by a party directed against his or her spouse, against a parent of the child, or against any person younger than eighteenyears of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit. As noted, the jury answered in favor of S.W.

An appellate court applies the ordinary factual sufficiency review standard to a jury's findings underlying a conservatorship appointment. In re J.A.J., 243 S.W.3d 611, 616 n.5 (Tex. 2007) (citing Corrales v. Dep't of Family & Protective Servs., 155 S.W.3d 478, 488 (Tex. App.—El Paso 2004, no pet.)). When conducting a factual sufficiency review, an appellate court considers all the evidence and sets aside a finding only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and unjust. THI of Tex. at Lubbock I, LLC v. Perea, 329 S.W.3d 548, 572 (Tex. App.—Amarillo 2010, pet. denied) (citing Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996)). The jury as trier of fact is the exclusive judge of the credibility of the witnesses and the weight given their testimony. GTE Mobilnet of S. Tex. Ltd. P'ship v. Pascouet, 61 S.W.3d 599, 615-16 (Tex. App.—Houston [14th Dist.] 2001, pet. denied). As such, it is authorized to believe some, all, or none of a witness's testimony. In re C.L., No. 07-14-00180-CV, 2014 Tex. App. LEXIS 11104, at *16-17 (Tex. App.—Amarillo Oct. 7, 2014, no pet.) (mem. op.).

The Department and the grandparents shouldered the burden of rebutting the parental presumption. In re M.F.M., 2017 Tex. App. LEXIS 10710, at *5-6. The mother testified the father slapped her face, burned her beautician supplies, threw bleach on her, and threw a can at her which struck her causing a bruise. According to the mother, the father once threatened to have someone "kick [her] a--, or something along those lines." She further stated the father spit in her face when she told him she was pregnant with H.E.B. According to the mother, on one occasion the father threatened her life, but she did not testify of the details. The mother agreed the father's temper is sometimes"volatile," going from calm to "extremely angry." In her opinion, the father exhibited fits of anger on a weekly basis. The father denied much of this alleged conduct but admitted he once dragged the mother out their house and called her insulting names "a couple" of times. When a therapist who treated the father between April and June 2016 was asked in testimony if, as circumstances existed at the time of his last session with the father, he perceived any danger to H.E.B. should the father have custody, the therapist expressed the opinion that an "extreme danger" would lie because the father provided him "example after example" of times he responded with violence when circumstances did not go his way.

The father testified he had been arrested at least fourteen times. He also testified of three convictions for driving while intoxicated and two convictions for driving with a suspended license. Other evidence showed he received eighteen-months' deferred adjudication community supervision for the offense of failure to stop and render aid. A copy of a 2002 "permanent" protective order issued against the father by the district court of Beckham County, Oklahoma, was admitted in evidence.

At the time of final hearing, the father was under a community supervision order as part of a plea-bargain agreement for the disposition of a felony DWI charge. According to the plea agreement, the father was sentenced to ten years' confinement in prison, probated for four years, and fined $2,000. Additionally, his driver's license was suspended for twelve months from April 5, 2017, the date of judgment, and he was required to install an alcohol-detecting interlock device on his vehicle. Notwithstanding the suspension of his license, the father admitted at final hearing he continued to driveand had not installed the interlock on his vehicle. The father also acknowledged he had not paid community supervision fees.

The father further acknowledged once having a misdemeanor order of probation revoked and serving a thirty-day sentence in the county jail. When asked how he intended to successfully complete felony probation, the father responded he planned to do nothing differently, and added, "hopefully, I don't get involved with somebody that messes things up real bad."

The mother referred, during her testimony, to alcohol as the father's "go-to" drug. She testified he did not consume alcohol every day or every...