Opinion
No. 05-16-00209-CV
08-14-2017
IN THE INTEREST OF L.E.M., A CHILD
On Appeal from the 303rd Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-13-12693-V
MEMORANDUM OPINION
Before Justices Francis, Brown, and Schenck
Opinion by Justice Schenck
Mother appeals the trial court's order appointing her and her child's paternal grandmother ("Grandmother") as joint managing conservators of L.E.M. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
L.E.M. was born in February 2009. Her parents engaged in a romantic relationship before and after L.E.M.'s birth. Mother, Father, and Grandmother were involved in raising L.E.M., who has lived in Grandmother's home since she was ten months old. On June 22, 2013, Father was murdered during a robbery, and on July 1, 2013, Mother went to Louisiana and stayed with relatives for several months, leaving four-year-old L.E.M. in Grandmother's care. Soon after Mother left, Grandmother filed a petition seeking to be appointed sole managing conservator of L.E.M. On October 22, 2015, the case proceeded to a bench trial at which Grandmother, Mother, and Mother's father testified. On January 26, 2016, the trial court signed an order appointing Grandmother and Mother as joint managing conservators of L.E.M. and awarding Grandmother the exclusive right to designate L.E.M.'s primary residence. In a single issue, Mother appeals the decision to award joint managing conservatorship to Grandmother.
DISCUSSION
I. STANDARD OF REVIEW
We review a trial court's determination of conservatorship for an abuse of discretion. In re C.M., No. 05-12-00380-CV, 2014 WL 470774, at *3 (Tex. App.—Dallas Feb. 6, 2014, no pet.) (mem. op.). Under that standard, legal and factual sufficiency of the evidence are not independent grounds for asserting error, but are relevant in assessing whether the requisite abuse of discretion is present. See id. We review the evidence in the light most favorable to the order and indulge every presumption in favor of the trial court's ruling. Id. If some probative and substantive evidence supports the order, there is no abuse of discretion. Id. Because there are no findings of fact or conclusions of law, it is implied that the trial court made all findings necessary to support the trial court's order. Id. II. APPLICABLE LAW
Mother timely requested that the trial court make findings of fact and conclusions of law and timely notified the trial court that the findings and conclusions were past due; however, the trial court did not file findings of fact and conclusions of law. Mother does not complain on appeal that the trial court erred by not filing findings of fact and conclusions of law.
The family code presumes that a parent will be appointed managing conservator. TEX. FAM. CODE ANN. § 153.131. This Court has held that for a non-parent to be appointed as managing conservator in lieu of one or both parents, the non-parent must overcome the parental presumption by proving by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child's physical health or emotional development. In re B.B.M., 291 S.W.3d 463, 467 (Tex. App.—Dallas 2009, no pet.). But, we have not yet held whether the parental presumption must be overcome, as Mother argues is the case here, when a non-parent and a parent are appointed as joint managing conservators. We need not decide the issue in this case because the record evidence supports an implied finding that Mother's appointment as sole managing conservator would result in significant impairment of L.E.M.'s emotional development or physical health. See In re C.M., 2014 WL 470774, at *3. III. APPLICATION OF LAW TO FACTS
Section 153.131 provides as follows:
(a) Subject to the prohibition in Section 153.004, 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.
(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.
Mother testified that less than two weeks after the murder of L.E.M.'s father, she and Grandmother agreed that from July 1, 2013, until November 2013, Grandmother would care for L.E.M. while Mother lived in Louisiana. Grandmother testified that throughout that time, she received no money or help with L.E.M.'s care from Mother, nor did Mother visit L.E.M during those several months. When asked whether she had ever voluntarily provided financial support to Grandmother while L.E.M. was in Grandmother's care, Mother responded that she "shouldn't have to."
Mother asserts that the amount of time she relinquished actual care, control, and possession of L.E.M. to Grandmother was less than the amount of time mandated by statute to rebut the parental presumption. See TEX. FAM. CODE ANN. § 153.373 (providing parental presumption may be rebutted if the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent for at least a year). As we previously stated, whether the parental presumption applies in cases such as this is not an issue we need to address to resolve this appeal. Nevertheless, if it did, section 153.373 would not be a basis for rebutting the parental presumption because the record shows Mother did not leave her daughter in Grandmother's care for the requisite amount of time the Legislature determined to be sufficient to rebut the parental presumption. Nonetheless, we may consider the fact that Mother voluntarily and intentionally left her child in a nonparent's care for several months less than two weeks after the murder of L.E.M.'s father as some evidence that appointment of Mother as sole managing conservator would result in significant impairment of L.E.M.'s emotional development or physical health.
By court order, the Dallas County Domestic Relations Office, Family Court Services Division, conducted a social study that focused on the best interest of L.E.M. The social study report was admitted at trial and contained summaries of interviews the Family Court Counselor ("Counselor") conducted with Grandmother, Mother, and L.E.M. Grandmother reported to the Counselor that she was concerned Mother was instilling L.E.M. with resentment and prejudice by telling her to remember that "white people don't like us" and that L.E.M. was different because she was not white. L.E.M. told the Counselor that Mother lives with a boyfriend with whom she fights and that they "say a lot of mean stuff to each other." She also stated that Mother smokes often enough that when she returns from visits with her mother, she has a cough and her clothes smell of cigarettes.
In the social study report, the Counselor indicated Mother did not seem to be aware of the potential effects of second-hand cigarette smoke based on the fact that Mother spoke of L.E.M. "always" being sick with allergies, cough, and sore throat when she visited Mother's home. At trial, Mother admitted she was a heavy smoker and admitted that, despite the fact that she understood the potential harmful effects of secondhand smoke, she continued to smoke in the car with L.E.M present. When asked if she would comply with a court order not to smoke in L.E.M.'s presence, Mother appeared non-committal: "If you're a smoker, you're a smoker." Grandmother reported to the Counselor that L.E.M. has suffered from allergies since infancy likely due to Mother's smoking while pregnant with L.E.M.
Grandmother also expressed general concerns about Mother's lifestyle and drug use. Mother admitted she had smoked marijuana with Father, but she denied any current use at the time of the social study and testified the last time she "used marijuana" was with Father. According to the social study report, Mother was arrested in April 2013 (before Father died) for possession of marijuana. Additionally, the Counselor recommended Mother be tested randomly for drug use.
At trial and during her interview with the Counselor, Grandmother stated L.E.M. had lived with her since 2010. Although Mother testified at trial that she would work with Grandmother on repairing their relationship, during her interview with the Counselor, she indicated that if awarded primary custody of L.E.M., she planned to not allow Grandmother to see L.E.M., potentially severing L.E.M.'s connection to a significant source of emotional and financial support.
The social study report concluded that no recommendations could be made regarding conservatorship or primary residence because, despite attempts by the Dallas County Domestic Relations Office, Mother did not make herself available for a home visit. At trial, Mother denied failing to cooperate with the person who scheduled a home visit, but the social study report documents multiple phone calls made to schedule a home visit.
The foregoing evidence establishes that (1) shortly after her four-year-old child's father was murdered, Mother left L.E.M. in Grandmother's care for several months without providing any financial support; (2) Mother sought to instill L.E.M. with resentment and prejudice; (3) Mother fought and exchanged insults with her boyfriend in front of L.E.M.; (4) Mother demonstrated an inability or unwillingness to recognize the possible harmful effects of her cigarette smoking on L.E.M.'s physical health; (5) Mother indicated she intended to cut L.E.M. off from a family member who had played a significant role in L.E.M.'s life; and (6) despite having the custody of L.E.M. at stake, Mother refused to cooperate with the Dallas County Domestic Relations Office's attempts to conduct a home visit, creating a reasonable inference that Mother's home environment was not conducive to L.E.M.'s emotional development or physical health. We conclude that there is sufficient evidence to support an implied finding that Mother's appointment as sole managing conservator would result in significant impairment of L.E.M.'s emotional development or physical health. In re C.M., 2014 WL 470774, at *3. While each factor discussed above standing in isolation might not demonstrate significant impairment, when viewed in the aggregate, we are not convinced the trial court abused its discretion in appointing Grandmother and Mother as joint managing conservators.
We overrule Mother's sole issue.
CONCLUSION
We affirm the trial court's judgment.
/David J. Schenck/
DAVID J. SCHENCK
JUSTICE 160209F.P05
JUDGMENT
On Appeal from the 303rd Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-13-12693-V.
Opinion delivered by Justice Schenck, Justices Francis and Brown participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Guadalupe Gamez Sanchez recover her costs of this appeal from appellant Ikeisha Stewart. Judgment entered this 14th day of August, 2017.