Opinion
NO. 09-11-00508-CV
02-02-2012
IN THE INTEREST OF R.K.F.
On Appeal from the 1-A District Court
Tyler County, Texas
Trial Cause No. A-18468
MEMORANDUM OPINION
This is an appeal from a modification order in a suit affecting the parent-child relationship. Appellant began dating appellee while appellee was on probation for two counts of intoxication manslaughter. They had a baby, R.K.F., together in August of 2008 but never married. Approximately a year later appellant and appellee separated.
In a suit affecting the parent-child relationship, the trial court in 2009 signed agreed orders appointing appellant managing conservator of R.K.F. and appellee possessory conservator. Appellee agreed to pay $1,500 a month in child support.
Appellee's probation was revoked, and he began serving two consecutive ten-year sentences in 2010. Appellant filed a petition to terminate appellee's parental rights. Appellee filed an answer, a counter-petition, and a petition to adjudicate parentage and establish conservatorship, child support, and possession and access.
Appellee's father and stepmother filed a petition in intervention stating that appellee had been incarcerated during the three-month period prior to the filing of the petition, that "at least one biological or adoptive parent of the child has not had that parent's parental rights terminated[,]" that it is in R.K.F.'s best interest for the intervenors to be granted possession of or access to R.K.F. by order of the trial court, and that denial of possession of or access by them to R.K.F. would significantly impair R.K.F.'s physical health and emotional well-being. See Tex. Fam. Code Ann. § 153.433 (West Supp. 2011). Appellant filed an answer to the plea in intervention and then a motion to strike it.
The trial court entered a SAPCR order. The order denies appellant's petition to terminate appellee's parental rights, appoints appellant and appellee as joint managing conservators, and gives appellant the exclusive right to designate R.K.F.'s primary residence. The order provides that appellee's father and stepmother "shall exercise the rights and duties of [appellee] provided herein above until [appellee] is released from prison."
The order further requires appellant to take R.K.F. to see appellee at the prison for a two-hour visit in December, April, and August. Appellee's father and stepmother must reimburse appellant for travel mileage expense for these visits. The trial court ordered that, until R.K.F. reaches three years of age, appellee has possession of and access to R.K.F. and appellee's father and stepmother shall exercise appellee's visitation "twice a month for two months in [appellant's] home." The order states that from the time R.K.F. turns three until his fifth birthday: (1) appellee's father and stepmother shall exercise appellee's visitation the second weekend each month from Friday at 6 p.m. until the following Sunday at 6 p.m., (2) appellee's father and stepmother shall exercise appellee's visitation for Christmas on the day after Christmas, and (3) there will be no visitation for the months of April or August. The trial court ordered that when R.K.F. turns five, appellee "shall have possession of and access to [R.K.F.] as set forth in the following Standard Possession Order[,]" but that appellee's father and stepmother "shall exercise [appellee's visitation] until such time as he is released from prison." The trial court ordered appellee to pay $150 in child support to appellant every two weeks, but that appellee's father and stepmother "shall be responsible for the child support until [appellee] is released from prison."
ISSUES ON APPEAL
Appellant does not challenge the trial court's denial of her petition to terminate appellee's parental rights. In fourteen issues, appellant contests the trial court's order allowing appellee's father and stepmother possession of and access to R.K.F. and granting them the right to exercise appellee's custody rights. She also challenges the portion of the order related to child support. We address appellant's issues three, four, five, seven, eleven, and twelve, as they are dispositive.
THE PLEADINGS
We first consider appellant's eleventh issue which challenges the legal sufficiency of the pleadings to modify the previous SAPCR order. Appellant argues that appellee failed to plead a change in circumstances to support his motion to modify custody, and therefore the modification order should be reversed.
The court may modify a previous SAPCR order that provides for the appointment of a conservator, or for the possession of or access to a child, "if modification would be in the best interest of the child," and the "circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed" since the earlier of the date of the rendition of the order or the date of the signing of a mediated settlement agreement on which the order is based. Tex. Fam. Code Ann. § 156.101(a) (West Supp. 2011). Appellee asserted in his "First Amended Original Counter-Petition and Petition to Adjudicate Parentage, Establish Conservatorship, Child Support, and Possession and Access" that he is incarcerated and that he and his family have made repeated attempts to provide support for R.K.F. Appellee requested that the trial court appoint him as joint managing conservator of R.K.F. and grant him visitation so that R.K.F. can visit him while he is incarcerated. He stated that he would show "that accommodations are made for visitations by prisoners' children by the Texas Department of Criminal Justice, and that visits would be in the best interest of the child." The prior SAPCR order appointed appellant managing conservator of R.K.F. and appellee possessory conservator. The SAPCR order was signed prior to the revocation of appellee's probation and prior to his incarceration. Appellee's motion pleaded a change in circumstances. Appellant's issue eleven is overruled.
DELEGATION OF APPELLEE'S VISITATION RIGHTS
Issues three, four, five, and seven concern access to or possession of the child. Appellee contends that this is not a case about grandparent access or possession, but instead is a situation where the trial court has exercised its broad discretion by naming a third party to facilitate appellee's visitation rights with the child while appellee is incarcerated. Appellee argues that his father and stepmother were not appointed by the trial court to be any type of conservator for R.K.F, and maintains that whether his father and stepmother are R.K.F.'s grandparents is immaterial in this case.
Appellee cites to In re J.S.P., 278 S.W.3d 414, 417-25 (Tex. App.—San Antonio 2008, no pet.) in support of his argument that the trial court here merely used a neutral third party to expand the possession rights of a parent. In J.S.P., a father appealed from the trial court's modification of the parent-child relationship. Id. at 416-17. He had been injured in an accident and suffered a closed-head injury. Id. at 417. Several years after J.S.P.'s birth, J.S.P's maternal grandmother, who was also J.S.P.'s mother's legal guardian, brought a suit affecting the parent-child relationship. The maternal grandmother was appointed sole managing conservator of J.S.P., and J.S.P.'s father was permitted visitation supervised by the maternal grandmother. Id.
J.S.P.'s father filed a petition to modify the parent-child relationship. Id. He requested that he be appointed a joint managing conservator of the child, that he be given the exclusive right to designate J.S.P's primary residence, and that a standard possession order be entered. Id. Temporary orders were signed, and J.S.P.'s father was granted supervised visitations on Wednesday evenings and on Saturdays. J.S.P.'s father was appointed managing conservator, along with J.S.P.'s maternal grandmother who retained the exclusive right to designate J.S.P.'s primary residence. The trial court continued the same visitation schedule as set forth in the temporary orders. The trial court also ordered a child psychologist to work with J.S.P.'s father to develop a program to work towards unsupervised periods of possession, and the trial court ordered that the doctor would determine when it was appropriate for a standard possession order to be entered. Id.
J.S.P.'s father challenged the trial court's delegation of authority to a third party, a mental health professional. Id. at 418. The San Antonio Court of Appeals held that "[u]sing a neutral third party, such as a mental health professional, to accomplish th[e] expansion [of J.S.P.'s father's possession rights] may be necessary in a complex family law situation such as this, where the trial court is not in the best position to determine when a parent is capable of exercising unsupervised periods of possession." Id. at 422 (footnote omitted). The Court "decline[d] to impose a blanket prohibition on a trial court's ability to appoint a third party to assist in deciding specific issues related to possession and access" and explained that "there are limited circumstances . . . where delegation of some authority to a third party may be necessary to both protect the interest of the child and comply with the Family Code's mandate to minimize, when possible, the restrictions placed on a parent's right to possession of and access to his child." Id. In the present case, however, the order grants appellee's father and stepmother possession of and access to R.K.F. at designated times, and not just to facilitate transport of R.K.F. for periodic visits with appellee at the jail when the limited visits are allowed. Compare Tex. Fam. Code Ann. § 153.316(6) (West 2008) ("[E]ither parent may designate a competent adult to pick up and return the child[.]")
Appellant relies on In the Matter of the Marriage of Campbell, No. 06-08-00088-CV, 2009 Tex. App. LEXIS 1407, at **2-15 (Tex. App.—Texarkana Feb. 27, 2009, no pet.), in support of her argument that, until appellee is released from jail, it is her decision regarding when R.K.F.'s grandparents can have possession of or access to R.K.F. In Campbell, the trial court allowed a grandmother, who acted under a power of attorney, to exercise her son's visitation rights with his children while he was incarcerated. Id. at *2. The children's mother argued on appeal that the trial court erred in allowing the children's paternal grandmother to exercise the father's visitation rights. Id. at *5. The grandmother argued that she was only exercising her incarcerated son's visitation, but the court of appeals determined that the decree in essence granted her possession of and access to the children at designated times. Id. at **5-6. The Texarkana Court of Appeals held that the trial court erred in awarding the grandmother access to the children because there was no evidence that denial of access would significantly impair the children's well-being. Id. at **12-14. Appellee maintains that the application of Campbell here "would bring about widespread injustice and confusion to the system." He argues that the application of Campbell in other factual situations would prohibit appellee's parents from helping him with visitation.
The facts here are similar to those in Campbell: a grandparent has been granted the exercise of an incarcerated parent's visitation rights. The trial court stated in its findings of fact and conclusions of law that appellee's father and stepmother "are not persons who [are] disqualified in any way from exercising [appellee]'s rights as a conservator while he is in prison." The result here, like in Campbell, is that R.K.F.'s grandparents are given possession of and access rights to R.K.F.
In light of Troxel v. Granville, the Texas legislature has set out the circumstances under which a court may allow a grandparent possession of or access to a grandchild when the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child is incarcerated. See Tex. Fam. Code Ann. § 153.433; see also Troxel v. Granville, 530 U.S. 57, 68-76, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (holding that a trial court's order for grandparent access unconstitutionally infringed on the parent's fundamental liberty interest where there was no evidence that the parent was unfit, that the children's health and well-being would suffer, or that the parent intended to exclude grandparent access entirely). Section 153.433(a) of the Texas Family Code provides in part that the trial court may order reasonable possession of or access to a grandchild if:
(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;Tex. Fam. Code Ann. § 153.433(a). Appellee's father and stepmother filed a petition in intervention alleging they met these elements. A stepgrandparent does not have standing under the statute to seek access to a stepgrandchild. See In re Derzapf, 219 S.W.3d 327, 331-33 (Tex. 2007). The question presented is whether the trial court abused its discretion in allowing appellee's father possession of or access to the grandchild while appellee is incarcerated in prison.
(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being; and
(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition[.]
In its findings of fact and conclusions of law, the trial court found that appellee's father and stepmother "failed to show by a preponderance of the evidence that denial of access to the child would significantly impair the physical health or welfare of the child." Therefore, appellee's father did not overcome the presumption that a fit parent acts in their child's best interest. The trial court appointed both appellant and appellee as joint managing conservators of R.K.F. A trial court abuses its discretion when it grants access to a grandparent who fails to meet the statutory requirements of Section 153.433. See In re J.P.C., 261 S.W.3d 334, 336-37 (Tex. App.—Fort Worth 2008, no pet.); In re B.N.S., 247 S.W.3d 807, 808 (Tex. App.—Dallas 2008, no pet.). The trial court found appellee's father did not meet the statutory requirements of 153.433 and that finding is not challenged. See In re J.P.C., 261 S.W.3d at 336; In re B.N.S., 247 S.W.3d at 808; see also Campbell, 2009 Tex. App. LEXIS 1407, at **12-16. Issues three, four, five, and seven are sustained.
CHILD SUPPORT
In her twelfth issue, appellant challenges the portion of the trial court's order requiring appellee to pay monthly child support and requiring appellee's father and stepmother to pay child support. She also complains the order does not address appellee's child support arrearages. Appellee concedes on appeal that "he does not understand the Court's ruling on child support." The requirement that the grandparents pay child support is unenforceable. See Office of Attorney Gen. v. Carter, 977 S.W.2d 159, 162 n.3 (Tex. App.—Houston [14th Dist.] 1998, no pet.) (citing Blalock v. Blalock, 559 S.W.2d 442, 443 (Tex. Civ. App.—Houston [14th Dist.] 1977, no writ)).
The appellant's argument that appellee cannot pay child support because he has no earnings in prison is a consideration for the trial court. See, e.g., Hollifield v. Hollifield, 925 S.W.2d 153, 156 (Tex. App.—Austin 1996, no writ) (rejecting the argument by incarcerated father that he should not be obligated to pay child support because he had no assets or earnings in prison, and holding that a trial court can consider a wide range of factors in setting child support obligations). As for appellant's argument that the trial court abused its discretion in failing to include arrearages in the child support order, we note that a motion to enforce the arrearages was not before the trial court. We do not read the order's silence as to any arrearages as a release of appellee's obligation to pay arrearages. The trial court erred in delegating appellee's child support obligation to appellee's father and stepmother. We reverse the portions of the trial court's order assigning appellee's rights or obligations to his father and stepmother. We remand the cause to the trial court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
___________________________
DAVID GAULTNEY
Justice
Before McKeithen, C.J., Gaultney and Horton, JJ.