Opinion
No. 05-17-00204-CV
03-26-2018
IN THE INTEREST OF J.T.S. AND J.R.S., CHILDREN
On Appeal from the 330th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-16-02901
MEMORANDUM OPINION
Before Justices Bridges, Evans, and Whitehill
Opinion by Justice Bridges
Mother, appearing pro se, appeals the trial court's order appointing paternal Grandmother sole managing conservator and Mother the possessory conservator of J.T.S. and J.R.S., her children. In six issues, Mother alleges (1) Grandmother did not have standing to bring suit; (2) the evidence is insufficient to order possession of the children to a grandparent under section 153.433 of the family code; (3) the trial court violated her due process rights by deciding who has access to her children; (4) the best interest of the children is for the parents to have joint managing conservatorship rather than a non-parent; (5) the trial court should modify custody because of new evidence showing a history of past and present domestic violence by Grandmother; and (6) ineffective assistance of counsel. We affirm the trial court's order.
Background
The grandparents of JTS and JRS filed an original petition for grandparent possession or access alleging Mother and Father were unable and unwilling to care for the children. They alleged the parents abandoned both children and the grandparents now took care of them. Shortly thereafter, Grandmother filed a SAPCR motion and a motion to adjudicate parentage. In the motion, Grandmother asked to be appointed sole managing conservator of the children because "appointment of the parents as joint managing conservators would not be in the best interest of the children."
The motion alleged the children "have no presumed, acknowledged, or adjudicated father," but provided the name of the alleged father. The alleged father is grandmother's son.
According to the SAPCR order, a bench trial occurred on January 10, 2017. The court appointed Grandmother the children's sole managing conservator and Mother the possessory conservator. The order further provided that Mother's possession and access to the children "are to be at the sole discretion of, coordinated by and supervised by [grandmother] at her home or a place of choosing." The court noted supervision was required because it found credible evidence that Mother had a "history or pattern of child neglect directed against the children."
Mother filed a notice of appeal challenging the court's order and an "affidavit of indigency" alleging she did not have sufficient funds to pay for preparation of the reporter's record. The court reporter challenged the affidavit, and after a hearing, the trial court sustained the court reporter's challenge. Mother appealed the order, and this Court affirmed. See In re J.S., No. 05-17-00341-CV, 2017 WL 1455406, at *1 (Tex. App.—Dallas Apr. 20, 2017, no pet.) (mem. op.). Thereafter, this Court ordered Mother to confirm in writing that she had paid or made arrangements to pay the reporter's fee and cautioned that failure to comply "may result in the appeal being submitted without the reporter's record." See TEX. R. APP. P. 37.3(c).
Mother filed a motion requesting appointment of counsel, arguing she was "being treated as if [her] parental rights have been terminated." Section 107.013 of the family code requires a court to appoint an attorney ad litem to represent the interest of an indigent parent of the child who responds in opposition to the termination when a governmental entity files a termination suit. See TEX. FAM. CODE ANN. § 107.013(a)(1) (West 2015). Here, a governmental entity did not file a termination suit; therefore, section 107.013 did not apply. This Court denied Mother's motion and directed the Clerk of the Court to send a copy of the Pro Bono Program Pamphlet to her. We further ordered the appeal submitted without the reporter's record. Mother filed her brief and after receiving a defective briefing notice from the Court, filed an amended brief. Grandmother has not filed an appellee brief.
Discussion
When, as in this case, there is no reporter's record and findings of fact or conclusions of law are neither requested nor filed, the judgment of the trial court implies all necessary findings of fact to sustain the judgment. See Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.—Dallas 2008, no pet.). In other words, we must presume the missing reporter's record supports the decision of the trial court. See Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002) (stating "court of appeals was correct in holding that, absent a complete record on appeal, it must presume the omitted items supported the trial court's judgment"). Similarly, statements in a brief that are unsupported by the record cannot be accepted as facts by an appellate court. Lyons v. Polymathic Props., Inc., No. 05-15-00408-CV, 2016 WL 3564210, at *2 (Tex. App.—Dallas Jun. 29, 2016, no pet.) (mem. op). With this in mind, we turn to the issues at hand.
In her first issue, Mother challenges Grandmother's standing to bring the SAPCR suit. A person seeking conservatorship must have standing to bring suit. In re I.I.G.T., 412 S.W.3d 803, 805 (Tex. App.—Dallas 2013, no pet.). Standing is a component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit. Id. The plaintiff has the burden of alleging facts that, if taken as true, affirmatively demonstrate a court's jurisdiction to hear a case. Asshauer v. Wells Fargo Foothill, 263 S.W.3d 468, 471 (Tex. App.—Dallas 2008, pet. denied). The absence of a reporter's record obligates us to presume the evidence presented supports the judgment. Bennett, 96 S.W.3d at 230. This presumption applies even to matters of standing. See In re J.A.T., 502 S.W.3d 834, 836 (Tex. App.—Houston [14th Dist.] 2016, no pet.) (presuming record of hearing challenging party's standing to file SAPCR, which was not filed in appellate court, supported trial court's ruling). Because we do not have a reporter's record, we must presume Grandmother presented evidence to the trial court to support her standing to bring the SAPCR. Id. Mother's first issue is overruled.
In her second issue, Mother argues the trial court erred because Grandmother presented no evidence to meet the statutory burden of proof under family code section 153.433. This section of the family code allows a trial court to order reasonable possession of or access to a grandchild if certain statutory requirements are met. See TEX. FAM. CODE ANN. § 153.433 (West 2014). Again, because we do not have a reporter's record, we must presume Grandmother presented evidence to the trial court supporting the statutory requirements. See Waltenburg, 270 S.W.3d at 312. C.f, In re H.M.J.H., 209 S.W.3d 320, 321 (Tex. App.—Dallas 2006, no pet.) (trial court did not abuse its discretion by denying grandparent access under section 153.433 when record contained no evidence establishing statutory requirements). Mother's second issue is overruled.
In her third issue, Mother argues the trial court violated her due process rights because it gave no special weight to her determination of the children's best interests. Parents enjoy a fundamental right to make decisions concerning "the care, custody, and control of their children." Troxel v. Granville, 530 U.S. 57, 65 (2000) (plurality op.). Thus, a parent must be given a meaningful opportunity to be heard before a trial court awards grandparent visitation. See In re Chambless, 257 S.W.3d 698, 700 (Tex. 2008) (trial court abused its discretion by awarding grandparents temporary visitation without affording mother meaningful opportunity to present evidence). In the absence of a reporter's record, we must presume the trial court provided Mother a meaningful opportunity to be heard and present evidence thereby satisfying her due process rights. See, e.g., Stallworth v. Stallworth, 201 S.W.3d 338, 344 (Tex. App.—Dallas 2006, no pet.) (without a reporter's record, party could not challenge implied finding she was not denied due process). Mother's third issue is overruled.
In her fourth issue, Mother contends the best interest of the children is for the parents to have joint managing conservatorship rather than a non-parent. The strong presumption that the best interest of a child is served by appointing a natural parent as managing conservator is deeply embedded in Texas law. See Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990); In re B.B.M., 291 S.W.3d 463, 468 (Tex. App.—Dallas 2009, pet. denied). To overcome this presumption, a nonparent must prove 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. See TEX. FAM. CODE ANN. § 153.131(a) (West 2014); In re B.B.M., 291 S.W.3d at 467. Because we do not have a reporter's record, we must presume Grandmother presented evidence to the trial court overcoming the parental presumption. See Waltenburg, 270 S.W.3d at 312.
In reaching this conclusion, we recognize that throughout Mother's brief, she repeatedly accuses Grandmother of bringing the underlying suit in retaliation because of an incident between Father and Mother. She contends Grandmother strategically set out to manipulate the courts and CPS with false information regarding Mother's care of the children to convince the court she was an unfit Mother. None of these statements have any record support. Moreover, although she attached documents to her brief indicating the children are allegedly living with individuals who have a criminal history, we are not allowed to consider such documents. See Greystar, LLC v. Adams, 426 S.W.3d 861, 868 (Tex. App.—Dallas 2014, no pet.). Accordingly, Mother's fourth issue is overruled.
In her fifth issue, Mother asserts custody should be modified because of new evidence showing a history of past and present domestic violence by Grandmother. Again, we have no record supporting such allegations and to the extent Mother has attached documents to her brief, we may not consider them. Id.; Waltenburg, 270 S.W.3d at 312. Mother's fifth issue is overruled.
Finally, Mother argues ineffective assistance of counsel. Mother represented herself in the trial court and has failed to provide any argument or authority explaining how the doctrine would apply to her. TEX. R. APP. P. 38.1(i) (brief must contain clear and concise argument for contentions made with appropriate record citations). Regardless, the doctrine of ineffective assistance of counsel does not apply in civil cases where there is no constitutional or statutory right to counsel. See In re A.R.R., No. 05-16-00259-CV, 2017 WL 2871421, at *2 (Tex. App.—Dallas June 29, 2017, no pet.) (mem. op.). Accordingly, we overrule Mother's final issue.
Having overruled all of Mother's issue, we affirm the trial court's order.
/David L. Bridges/
DAVID L. BRIDGES
JUSTICE 170204F.P05
JUDGMENT
On Appeal from the 330th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-16-02901.
Opinion delivered by Justice Bridges. Justices Evans and Whitehill participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee Yolanda Smith recover her costs of this appeal from Jshaye Hendrix. Judgment entered March 26, 2018.