Opinion
Nos. 04-05-00852-CV, 04-05-00853-CV
Delivered and Filed: June 14, 2006.
Appeal from the Probate Court No. One, Bexar County, Texas, Trial Court Nos. 2004-PC-2555 2004-PC-2556, Honorable Polly Jackson Spencer, Judge Presiding.
Affirmed.
Sitting: Alma L. LÓPEZ, Chief Justice, Sandee Bryan MARION, Justice, Phylis J. SPEEDLIN, Justice.
MEMORANDUM OPINION
Jimmie Glen Bradford appeals the probate court's orders appointing Rhonda J. Jacobs as the guardian of the person and estate of K.B. and J.N.B., who are minor children. Jimmie contends the probate court erred because, as the natural father, he was entitled to be appointed as guardian unless he was found to be incapacitated, and no evidence was presented to prove that he was incapacitated or unsuitable to be appointed as guardian. We affirm the trial court's orders.
Background
In 1995, Karla Bulara and Jimmie were divorced. At the time of the divorce, Karla and Jimmie had three children, B.B., K.B. and J.N.B., who were nine, six and ten months, respectively. In 1998, Karla moved with the children to San Antonio. At that point, Jimmie ceased virtually all contact with his children.
In June of 2004, Karla died in a car accident. At the time, Karla's husband, Joseph, was appointed temporary guardian of the children. In August of 2004, Joseph filed an application to be appointed the children's permanent guardian. Jimmie filed an answer to Joseph's application and filed a separate application to have himself appointed as the children's permanent guardian.
In October of 2004, the probate court entered an order extending Joseph's temporary guardianship based on an agreement reached by the parties. Pursuant to the agreement, B.B. had her disabilities removed, and the parties agreed to counseling. In March of 2005, B.B. went to live with Rhonda, the children's maternal aunt. In April of 2005, Rhonda also filed an application to be appointed as the children's permanent guardian. On April 21, 2005, K.B., who was fifteen years old, filed a selection of guardian stating her opposition to having Jimmie appointed as her guardian and her desire to have Rhonda appointed as her guardian. J.N.B. also filed a similar selection; however, he was only ten years old at the time.
At the hearing on the applications, Joseph withdrew his application in favor of Rhonda being appointed as guardian, and the trial court noted the selection of guardian filed by K.B. After the hearing, the trial court found that Jimmie was disqualified to serve as the permanent guardian because he was "a person who, because of inexperience and other good reasons is incapable of properly and prudently managing and controlling [K.B. and J.N.B.] or [their] estate[s] and that he would be a person unsuitable to serve in said capacity." The trial court found that Rhonda was not disqualified and appointed her as the permanent guardian of K.B. and J.N.B.
Discussion
Jimmie contends that the trial court improperly applied section 681 of the Texas Probate Code to appoint the children's permanent guardian rather than section 676. Section 676 of the Texas Probate Code generally governs the selection of a guardian for a minor "[e]xcept as otherwise provided by section 680." Tex. Prob. Code Ann. § 676(a) (Vernon 2003). Jimmie argues that because he is the surviving parent of K.B. and J.N.B., he is entitled to be appointed guardian absent a finding that he is incapacitated. Tex. Prob. Code Ann. § 676(b), (d-g) (Vernon 2003) (requiring appointment of surviving parent but referring to other appointments in the event the parent is incapacitated).
Although section 676 contains the general rules relating to the appointment of the surviving parent as the guardian of a minor, the surviving parent may still be disqualified under section 681, which lists the persons who are disqualified from being appointed as a guardian. Phillips v. Phillips, 511 S.W.2d 748, 749 (Tex.Civ.App.-San Antonio 1974, no writ) (noting surviving parent may be disqualified on basis of having a claim adverse to the wards under predecessor to section 681); Ochotorena v. Galarza, 210 S.W.2d 473, 474-75 (Tex.Civ.App.-El Paso 1947, no writ) (noting presumption is in favor of parent in the absence of showing the disqualification of the parent). Although a presumption arises under section 676 that the best interest of a child will be served by allowing the child to remain in the custody of a natural parent, the presumption may be rebutted by evidence that the surviving parent is disqualified. See Phillips, 511 S.W.2d at 749; Cox v. Young, 405 S.W.2d 430, 432-33 (Tex.Civ.App.-Eastland 1966, writ ref'd n.r.e.); Silva v. Aranda, 223 S.W.2d 333, 334 (Tex.Civ.App.-San Antonio 1949, no writ). A trial court's selection of a guardian is reviewed under an abuse of discretion standard. Ramirez v. Garcia de Bretado, 547 S.W.2d 717, 718 (Tex.Civ.App.-El Paso 1977, no writ); Cox, 405 S.W.2d at 432; Silva, 223 S.W.2d at 333.
In this case, K.B. filed a selection of guardian pursuant to section 680. Section 676 provides an exception to the general rules relating to the appointment of the surviving parent if a selection of guardian is filed. See Tex. Prob. Code Ann. § 676(a) (Vernon 2003). A minor, who is at least 12 years of age, may select a guardian in writing if the court approves the choice and finds that the choice is in the best interest of the minor. See Tex. Prob. Code Ann. § 680(a) (Vernon 2003). Jimmie does not contend that Rhonda's appointment is not in K.B.'s best interest. Instead, he contends that the trial court was required to appoint him as K.B.'s permanent guardian under section 676. Because a selection of guardian under section 680 is an exception to the general rules relating to the appointment of a surviving parent under section 676, the trial court did not abuse its discretion in appointing Rhonda as K.B.'s guardian. See In re Estate of Carrigan, 517 S.W.2d 817, 819 (Tex.Civ.App.-Tyler 1974, no writ) (noting reasons for allowing minor to select guardian); Burns v. Parker, 155 S.W. 673, 675 (Tex.Civ.App.-Dallas 1913, writ ref'd) (noting right of minor to select guardian is absolute if person so selected is not excluded by statute and is suitable and competent).
With regard to J.N.B., the trial court determined that Jimmie was disqualified under section 681(7) of the Texas Probate Code because he was "a person who, because of inexperience and other good reasons is incapable of properly and prudently managing and controlling [J.N.B.] or [his] estate and that [Jimmie] would be a person unsuitable to serve in said capacity." The material time for determining whether a parent is a fit and proper person to serve as a guardian is the present. Guillott v. Gentle, 467 S.W.2d 521, 524 (Tex.Civ.App.-Eastland 1971, writ ref'd n.r.e.); Cox, 405 S.W.2d at 433. Past misconduct or neglect are factors to be considered but are not sufficient to show present unfitness. Guillott, 467 S.W.2d at 524; Cox, 405 S.W.2d at 433.
In this case, the trial court heard testimony that Jimmie had not seen the children in over six years. His first attempt to gain entry into the children's lives was by an unannounced visit to the children's home in which Jimmie and an assortment of relatives descended on B.B. in her driveway, upsetting her. Following this encounter, the parties agreed at a hearing in October of 2004 that Jimmie would obtain counseling services to gain the experience and knowledge needed to initiate visitation with his children. Jimmie failed to obtain those services by the time of the hearing in July of 2005. Evidence was presented that the counseling services were not scheduled, in part, because Jimmie wanted the counseling services to be scheduled at a location to which it would be more convenient for him to travel rather than the city where the children were living. Rhonda testified that the children have increased tension when Jimmie is mentioned, especially the possibility of having to live with him, and would "go into tears." Rhonda testified that having Jimmie appointed as guardian would be emotionally devastating for the children, and that the children needed to remain together. Based on the evidence presented, we cannot conclude that the trial court abused its discretion in determining that Jimmie was disqualified to serve as guardian of J.N.B. pursuant to section 681(7) of the Texas Probate Code.
The trial court's orders are affirmed.