Opinion
No. 01-08-00018-CV
Opinion issued May 7, 2009.
On Appeal from the 311th District Court, Harris County, Texas, Trial Court Cause No. 2006-03626.
Panel consists of Chief Justice RADACK and Justices ALCALA and HANKS.
MEMORANDUM OPINION
Appellant, Evelyn Morrison ("Morrison"), is the paternal grandmother of B.G.M. and B.M.M., the children who were the subject of the appealed-from order. Morrison, appearing pro se, appeals the trial court's order naming Debra Sanchez, the children's maternal grandmother, non-parent sole managing conservator of the children and giving Morrison no enforceable rights. In four issues, Morrison contends that the trial court lacked jurisdiction over the matter, erred in making its determinations without considering the best interests of the children, erred in preventing Morrison from presenting evidence regarding Sanchez's relationship to "questionable persons," and lacked factually sufficient evidence to support its determinations. We affirm.
Because Morrison is appearing pro se, we have strived to construe her appellate pleadings with patience and liberality. Barnes v. State, 832 S.W.2d 424, 426 (Tex.App. 1992, no pet.); TEX. R. APP. P. 38.9. However, we have also kept in mind that we must require Morrison to comply with applicable laws and rules of procedure so as not to give her an unfair advantage over the litigants who were represented by counsel. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184-85 (Tex. 1978); Kindley v. State, 879 S.W.2d 261, 264 (Tex.App.-Houston [14th Dist.] 1994, no pet.); Shull v. United Parcel Serv., 4 S.W.3d 46, 53 (Tex.App. 1999, pet. denied).
Background
In 1999, Morrison's son, Bruce Milner ("Milner"), and Sanchez's daughter, Leaza Maddalone ("Maddalone"), entered into an agreement outlining their parental rights and duties with regard to their two children, B.G.M. and B.M.M. On August 14, 2005, during a visitation exchange, Milner shot Maddalone and her mother, Sanchez, killing Maddalone and putting Sanchez in a coma, from which she eventually recovered. After the shooting, Morrison was named temporary joint managing conservator of the children, and Sanchez exercised visitation rights similar to those granted by a standard possession order.
In February of 2006, Sanchez filed a suit affecting the parent-child relationship, seeking to be named sole managing conservator of the children and requesting that the trial court terminate Milner's parental rights. The parties tried the matter before the bench in November of 2007, and the trial court terminated Milner's parental rights and appointed Sanchez sole managing conservator of the children. The trial court's order did not give Morrison any rights with regard to the children.
Jurisdiction
In her first issue, Morrison contends that the trial court erred in stating that it had jurisdiction over the matter. Morrison argues that, because the children lived with her in Brazoria County for more than six months, continuing, exclusive jurisdiction of the matter should have been transferred to Brazoria County from Harris County.
In support of her contention, Morrison cites Section 155.201(b) of the Texas
Family Code, which provides that,
[i]f a suit to modify or a motion to enforce an order is filed in the court having continuing, exclusive jurisdiction of a suit, on the timely motion of a party the court shall, within the time required by Section 155.204, transfer the proceeding to another county in this state if the child has resided in the other county for six months or longer.
TEX. FAM. CODE ANN. § 155.201(b) (Vernon 2008).
However, Section 155.201(b) specifically provides that the trial court is to transfer a matter "on the timely motion of a party. . . ." Id. (emphasis added). The record does not reflect any requests by any of the parties in the case for a transfer out of Harris County.
Accordingly, we overrule Morrison's first issue.
"Best Interest" Standard
In her second issue, Morrison contends that the trial court used an inappropriate standard in determining possession of and access to the children. Morrison seems to be arguing that, because the children's mother is deceased and their father no longer has parental rights, the two sets of grandparents should be considered the children's two "parents" for the purposes of determining conservatorship under Section 153.131(b) of the Family Code. This provision, in pertinent part, provides 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.
TEX. FAM. CODE ANN. § 153.131(b) (Vernon 2008).
Thus, Morrison argues, the trial court should have proceeded with the presumption in mind that appointment of the two sets of grandparents as joint managing conservators was in the best interest of the child. Morrison further argues that Section 153.131(b)'s provision that "[a] finding of a history of family violence involving the parents of a child" removes the relied-upon presumption is irrelevant under the facts of this case. Morrison contends that "it would be unfair to attach a finding of family violence to a grandparent because of the child's violence without any history of the grandparent [sic] own violence," meaning that Milner's actions should not remove the presumption as applied to Morrison.
Morrison cites no caselaw showing that the parental presumption described in Section 153.131 of the Family Code has ever, under any circumstances, been applied in favor of a nonparent, and we can find none. We overrule Morrison's second issue.
Evidence Regarding Relationship of Sanchez to "Questionable Persons"
In her third issue, Morrison contends that the trial court erred in not allowing her to present evidence regarding Sanchez's relationship to "questionable persons."
Morrison's brief does not make clear the nature of the evidence or the identity of the persons to which it refers, and the section addressing her third issue contains no cites to the record. We conclude that Morrison's third issue is inadequately briefed. See TEX. R. APP. P. 38.1(i) (requiring appellate briefs to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record").
We overrule Morrison's third issue.
Factual Sufficiency
In her fourth issue, Morrison contends that the evidence supporting the trial court's order was factually insufficient because "[t]here was no definitive evidence" that the relationship between Morrison and B.G.M. and B.M.M. was "anything other than a caring concerned relationship."
Standard of Review
We review a trial court's decision on custody, control, possession, and visitation of children for abuse of discretion, and we will reverse the trial court's order only if we determine, from reviewing the record as a whole, that the trial court abused its discretion. George v. Jeppeson, 238 S.W.3d 463, 468 (Tex.App. 2007, no pet.); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Challenges to the sufficiency of the evidence do not constitute independent claims of error for rulings subject to the abuse-of-discretion standard because the standard incorporates sufficiency standards. George, 238 S.W.3d at 468 (citing McGuire v. McGuire, 4 S.W.3d 382, 387 n. 2 (Tex.App.-Houston [1st Dist.] 1999, no pet.)). A trial court abuses its discretion when it reaches a decision that is so arbitrary and unreasonable that it amounts to a clear and prejudicial error of law, or when it clearly fails to correctly analyze or apply the law. George, 238 S.W.3d at 468 (citing In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005)).
Accordingly, because Morrison is appearing pro se, we have read her factual sufficiency challenge as a contention that the trial court abused its discretion in appointing Sanchez sole managing conservator.
Because a trial court has no discretion in determining what the law is, which law governs, or how to apply the law, we review discretionary rulings on legal questions de novo. George, 238 S.W.3d at 468 (citing In re D. Wilson Constr. Co., 196 S.W.3d 774, 781 (Tex. 2006)). But when we review a ruling that results from the trial court's having resolved underlying facts, we must defer to the trial court's factual resolutions, and any credibility determinations that may have affected those resolutions, and may not substitute our judgment for the trial court's judgment in those matters. George, 238 S.W.3d at 468 (citing Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992)). When, as here, the trial court conducts a bench trial, but files no findings of fact and conclusions of law, we may infer that the trial court made all findings necessary to support its judgment. George, 238 S.W.3d at 468 (citing BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002)).
The Evidence
In the instant case, the trial court heard testimony that the children had told their psychologist and Sanchez that they did not want a relationship with Morrison.
The psychologist, Carol Stephens, testified that "a forced relationship with [Morrison] at this point would be harmful [to the children;]" that the children had "made significant progress" socially and academically since leaving Morrison's home to live with Sanchez; and that, during their counseling sessions, the children said that they were "whipped" by Morrison if they talked about their mother or "sa[id] anything bad" about their father. Sanchez testified that the children told her that they were afraid of Morrison.
Morrison notes that she presented witnesses — her daughter-in-law, her son, a police officer who works in the community in which Morrison lives, and a counselor who worked with the children while they were living with Morrison — who testified that they never suspected that Morrison was abusing the children. However, giving due deference to the trial court's credibility determinations and factual resolutions, we conclude that the trial court did not abuse its discretion in naming Sanchez sole managing conservator of the children and in declining to give Morrison enforceable rights with regard to the children. We overrule Morrison's fourth issue.
Conclusion
We affirm the trial court's judgment.