Opinion
NO. 02-15-00258-CV
07-07-2016
IN THE INTEREST OF M.L., A CHILD
FROM COUNTY COURT AT LAW NO. 2 OF WICHITA COUNTY
TRIAL COURT NO. CCL-651-14-F MEMORANDUM OPINION
See Tex. R. App. P. 47.4.
This is an appeal from the trial court's judgment appointing appellee S.L. (Sister), the adult adoptive sister of M.L. (Matt), as his sole managing conservator. In two points, appellant L.L. (Mother), Matt's mother, contends that the trial court erred because the evidence was insufficient to rebut the statutory presumption that the court should appoint her as Matt's sole managing conservator and because there was no clear and compelling evidence supporting the separation of Matt from his sister, C.L. (Carol). We affirm.
To protect the anonymity of people associated with this appeal, we use aliases. See Tex. R. App. P. 9.8, 9.9(a)(3); In re S.B.S., 282 S.W.3d 711, 712 n.1 (Tex. App.—Amarillo 2009, pet. denied).
Background Facts
At the time of the trial, Matt was twelve years old. Mother is Matt's mother by adoption. In addition to Matt, Mother has adopted two other children, including Carol, and has four adult biological children. Sister is one of Mother's adult biological daughters.
Mother has suffered from depression for several years, and the depression worsened after her husband, Matt's adoptive father, passed away suddenly in 2012. For two to three months after her husband's death, Mother was "doing good" to get out of bed. Mother takes medication for the depression and has self-medicated; Sister testified that Mother "takes medication not as it's prescribed because it makes her sleep and she doesn't have to deal with anything." Additionally, Mother suffers from mild cognitive impairment resulting in problems with her memory, for which she also takes medication.
After Mother's husband's death, the condition of her home began to deteriorate. One of Mother's adult daughters believes the home poses a health and fire risk. The home became infested with maggots, roaches, and fleas; Matt once became so disgusted with the fleas in the home that he vomited. Mother leaves standing water in the bathtub for days or weeks under the guise of conserving water to the point that Matt refuses to shower at Mother's house. There have also been problems with the cleanliness and functioning of the toilets. Dog feces and urine on the floor in the house is a common occurrence. Additionally, the utilities have previously been shut off for failure to pay the bill. When Mother's adult daughters (including Sister) attempted to clean the home, they were met with resistance and anger, and the house never stayed clean for more than a month. Once after Sister attempted to clean Mother's house and threw some expired and broken items in a dumpster, Mother made her children (including Matt) get in the dumpster in the middle of the night, while it was snowing, to retrieve the items. During this event, Mother was "screaming at the top of her lungs and was hysterical."
Sister testified that when Matt lived with Mother, he showered "maybe once a week."
During trial, the court received testimony from a counselor, Dr. Michael Vandehey. Matt and his mother began attending counseling with Dr. Vandehey in response to Matt's father's death. Dr. Vandehey initially diagnosed Matt with an adjustment disorder but later changed the diagnosis to Oppositional Defiant Disorder that manifested itself only in Mother's home (as opposed to at school or church). Dr. Vandehey diagnosed Mother with a major depressive disorder.
Dr. Vandehey is a professor of psychology at Midwestern State University and also maintains a part-time counseling practice.
Matt raised his concerns about the conditions in the home during family counseling sessions. In his testimony, Dr. Vandehey could not point to any conduct or omission that he believed had resulted in physical or emotional harm to Matt. Dr. Vandehey expressed his belief that the condition of the home could be distressing to someone of a fastidious nature such as Matt but that he did not see any evidence of significant impairment. Dr. Vandehey, however, also pointed out that it is not the environment itself but rather an individual's reaction to the environment that is determinative of impairment. According to Dr. Vandehey, evidence of significant impairment includes panic attacks or intense anxiety that results in physical symptoms.
Mother recognized at trial that Matt is "a real neat freak" who "wants things straight and in order."
Mother recognized the adverse impact the condition of the house had on Matt but failed to address it because of her depression. Matt became physically ill in response to the condition of the home, including having difficulty breathing. As Mother conceded, the poor living conditions caused Matt to have anxiety attacks.
Sister believes that Mother failed to properly supervise the children. There have been episodes of violence in Mother's home, some of which have involved Matt. Sister testified, "[Mother's] aware of the physical aggressiveness between the kids[,] and she doesn't monitor that." Another witness testified that after Matt had been hit by a sibling, Mother had told him to "suck it up." In one instance, one of Carol's boyfriends pushed Matt down and choked him; after being told, Mother did nothing to prevent further assaults, and further assaults on Matt occurred.
While at Mother's house over an Easter holiday, J.L. (Jackson), Mother's other adopted son, smoked marijuana. Mother returned Jackson to the foster care system after he began acting out violently because she was unable to handle him. Additionally, Mother left the children home alone for extended periods of time without adult supervision—once over a weekend and another time for an entire week. On one of these occasions, Mother left Carol home alone with male associates despite being aware of Carol's previous inappropriate sexual behavior. Sister testified, "[Mother] doesn't supervise, [and] that's a major concern for me."
Mother's actions have affected Matt emotionally. She did not give Matt any Christmas gifts because he would not go with her to San Antonio, and she told him that he had ruined her Christmas. She was late to his birthday party by and hour and a half. She threatened to send him back to foster care and to call the police on him. She conducted "experiments" to see if he would call her. Mother once called Matt and asked how many times he was going to rip her heart out and stomp on it, making him uncomfortable. Matt is sensitive and is hurt by those kinds of statements.
Matt has been living with Sister full time since May 2014. Sister has paid for his school lunches, cell phone, and clothes. Since that time, Mother has only contributed approximately $25 toward Matt's care despite receiving an adoption subsidy and social security survivor's benefits for his support. In addition to his financial needs, Sister provides him a clean home and an organized, stable life. Matt prefers staying at Sister's home because it is clean compared to Mother's house.
Mother admitted that she had used Matt's adoption subsidy to pay her own bills.
Upon Sister's pleading and after considering the parties' evidence and arguments, the trial court appointed Sister as Matt's sole managing conservator and Mother as his possessory conservator. The court expressly found that to appoint Mother as a managing conservator for Matt would significantly impair his physical health or emotional development. Mother brought this appeal.
In closing arguments, Matt's guardian ad litem opined that Sister had met the burden to obtain managing conservatorship of Matt to Mother's exclusion.
Specifically, the trial court found, "To appoint [Mother] as a joint managing conservator would significantly impair [Matt's] physical health or emotional development." Contrary to Mother's argument on appeal, we conclude that this express finding also carries the implicit finding that to appoint Mother as Matt's sole managing conservator would significantly impair his physical health or emotional development.
Points on Appeal and Standard of Review
Mother raises two points on appeal: the evidence is legally and factually insufficient to rebut the statutory presumption that the court should appoint her as Matt's sole managing conservator, and there was no clear and compelling evidence to support the order which separated Matt from Carol.
We review a trial court's decision regarding the conservatorship of a child for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re S.T., No. 02-15-00203-CV, 2015 WL 9244913, at *5 (Tex. App.—Fort Worth Dec. 17, 2015, no pet.). An abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh'g); S.T., 2015 WL 9244913, at *6. It is for the factfinder to determine the weight to be given to the testimony and to resolve any conflicts in the evidence. Chavez v. Chavez, 148 S.W.3d 449, 457 (Tex. App.—El Paso 2004, no pet.); see In re R.W., 129 S.W.3d 732, 742 (Tex. App.—Fort Worth 2004, pet. denied).
In an abuse of discretion review, legal and factual insufficiency are not independent grounds for asserting error but are merely relevant factors in assessing whether a trial court abused its discretion. S.T., 2015 WL 9244913, at *6. Thus, in applying the abuse of discretion standard, we use a two-pronged analysis: whether the trial court had sufficient evidence upon which to exercise its discretion and whether the trial court erred in applying its discretion. Id.; see also Wise Elec. Coop., Inc. v. Am. Hat Co., 476 S.W.3d 671, 679-80 (Tex. App.—Fort Worth 2015, no pet.) (setting forth standards for legal and factual sufficiency).
Parental presumption
The best interest of the child is the primary consideration in determining issues of conservatorship. J.A.J., 243 S.W.3d at 614 (citing Tex. Fam. Code Ann. § 153.002 (West 2014)); S.T., 2015 WL 9244913, at *7. The trial court has wide latitude in determining the best interests of a child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The factors which courts may consider in deciding what is in the best interest of the child include desires of the children, emotional and physical needs of the children now and in the future, emotional and physical danger to the children now and in the future, parental abilities of the individuals involved, programs available to those individuals to promote the best interest of the children, plans for the children by these individuals, stability of the home, acts or omissions of the parent which may indicate that the existing parent-child relationship is not proper, and any excuse for the acts or omission of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); S.T., 2015 WL 9244913, at *7. However, the best interest determination does not require proof of any set of factors nor limit proof to any specific factors. In re D.M., 58 S.W.3d 801, 814 (Tex. App.—Fort Worth 2001, no pet.).
Under Texas law, there is a rebuttable presumption that naming a child's parent as sole managing conservator (or both parents as joint managing conservators) is in the best interest of the child. See Tex. Fam. Code Ann. § 153.131(a) (West 2014); J.A.J., 243 S.W.3d at 614; S.T., 2015 WL 9244913, at *8; see also Tex. Fam. Code Ann. § 263.307(a) (West Supp. 2015) (stating that the prompt and permanent placement of a child in a safe environment is also presumed to be in the child's best interest). To overcome this presumption, a court must find that appointment of the parent would significantly impair the child's physical health or emotional development. Tex. Fam. Code Ann. § 153.131(a); S.T., 2015 WL 9244913, at *8; Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.—Fort Worth 2009, no pet.). Section 153.131's presumption is based on the natural affection usually flowing between a parent and a child. S.T., 2015 WL 9244913, at *8. Mother contends that the evidence is legally and factually insufficient to establish that appointing her as Matt's sole managing conservator would significantly impair his physical health or emotional development.
To overcome the statutory parental presumption, the evidence must support the logical inference that some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions, will probably cause significant impairment to the child's physical health or emotional development if the court appoints the parent managing conservator. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990); S.T., 2015 WL 9244913, at *8. This is a heavy burden that is not satisfied by merely showing that the nonparent would be a better custodian of the child. Lewelling, 796 S.W.2d at 167. "Close calls" should be decided in favor of the parent. Id. at 168.
An adult's future conduct may be somewhat determined by recent past conduct, but past conduct may not by itself be sufficient to show present unfitness. See S.T., 2015 WL 9244913, at *9. "If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling." Critz, 297 S.W.3d at 475.
Acts or omissions that constitute significant impairment include but are not limited to physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior by the parent. S.T., 2015 WL 9244913, at *9. Other considerations may include parental irresponsibility, a history of mental disorders, frequent moves, bad judgment, child abandonment, and an unstable, disorganized, chaotic lifestyle that has and will continue to put the child at risk. Id.
Living conditions in the home have also been used as a factor in affirming the appointment of a nonparent as managing conservator. See In re B.G.M., No. 06-10-00022-CV, 2011 WL 3332165, at *9 (Tex. App.—Texarkana Aug. 4, 2011, pet. denied) (mem. op.) (using the fact that a home was infested with roaches and rats as a factor in holding the evidence was sufficient to show a significant impairment to the child's physical health); In re J.G., No. 06-06-00114-CV, 2007 WL 1690223, at *4 (Tex. App.—Texarkana June 13, 2007, pet. denied) (mem. op.) (considering a roach infestation in appointing a nonparent relative as managing conservator); see also In re M.C., 917 S.W.2d 268, 270 (Tex. 1996) (holding that extraordinarily unsanitary conditions, a roach infestation, and living conditions where the floor and furniture were littered with food, dirty clothes, garbage, and feces supported the termination of parental rights).
The record contains evidence of Mother's severe depression and related self-medication, failure to maintain sanitary living conditions, failure to properly supervise her children, failure to support Matt, failure to protect Matt from physical violence and emotional abuse, and the effects of these actions on Matt. Mother recognized at trial that the condition of her home while Matt lived there could have had an adverse impact on him and caused him to have anxiety attacks. Dr. Vandehey diagnosed Matt with Oppositional Defiant Disorder that manifested only in Mother's home. The trial court could have rationally found from this evidence that appointment of Mother as managing conservator would probably cause significant impairment of Matt's physical health and emotional development. Based on this record, despite the statutory parental presumption in Mother's favor, we cannot hold that the trial court abused its discretion by granting managing conservatorship to Sister. See J.A.J., 243 S.W.3d at 616. Thus, we overrule the Mother's first point.
Separation of siblings
In her second point, Mother argues that the trial court erred because there was no clear and compelling evidence to support the trial court's judgment to the extent that it separated Matt from Carol, who was a minor at the time of the judgment's rendition. This point, however, is now moot. A justiciable controversy must exist between the parties at every stage of the legal proceedings, including the appeal. Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001). A point becomes moot when the controversy ceases to exist. Valley Baptist Med. Ctr. v. Gonzalez, 33 S.W.3d 821, 822 (Tex. 2000). When a child involved in a divided custody issue reaches the age of majority, the issue becomes moot. Ngo v. Ngo, 133 S.W.3d 688, 691 (Tex. App—Corpus Christi 2003, no pet.); see also In reE.H., No. 02-07-00343-CV, 2008 WL 2404490, at *1 (Tex. App—Fort Worth June 12, 2008, no pet.) (mem. op.). Because Carol has reached the age of majority, a divided custody issue no longer exists. Therefore we overrule Mother's second point.
Carol was seventeen years old at the time of the trial. She is now eighteen years old. --------
Conclusion
Having overruled both of Mother's points, we affirm the trial court's judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE PANEL: LIVINGSTON, C.J.; GABRIEL and SUDDERTH, JJ. DELIVERED: July 7, 2016