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In re S.A.H.

Court of Appeals of Texas, Fourteenth District, Houston

January 28, 2014

IN THE INTEREST OF S.A.H., A MINOR CHILD

Page 912

On Appeal from the 312th District Court, Harris County, Texas. Trial Court Cause No. 2006-22737.

For APPELLANT: Stewart W. Gagnon, Elizabeth Ann Crawford, Sumera Khan, William R. Pakalka, HOUSTON, TX.

For APPELLEE: Kathleen A. O'Connor, HOUSTON, TX; Jana K. Landry, FRIENDSWOOD, TX.

Panel consists of Justices Jamison, McCally, and Busby.

OPINION

Martha Hill Jamison, Judge.

Page 913

This is a parent's appeal from a child custody modification order granting the child's Great Aunt certain status and rights in relation to the child. In a divorce decree dissolving the marriage of S.A.H's parents, the trial court named both parents as joint managing conservators and granted Mother the exclusive right to establish S.A.H.'s primary residence. In the subsequent modification order from which this appeal is taken, the court again named both parents as joint managing conservators, but additionally named S.A.H.'s maternal

Page 914

Great Aunt, with whom S.A.H. had been living for an extended period of time, as joint managing conservator. The court further granted Great Aunt the exclusive right to establish S.A.H.'s primary residence.

In five issues, Mother[1] contends that (1) section 156.101 of the Texas Family Code, which governs modifications, is unconstitutional--both facially and as applied in this case--because it permitted the trial court to award primary custody to a nonparent without application of a " parental presumption" [2]; (2) the evidence is legally and factually insufficient to support the trial court's findings that Mother voluntarily relinquished the primary care and possession of S.A.H. for at least six months and that the modification order was in the child's best interest; (3) the court abused its discretion in imposing an injunction prohibiting the parties from associating with unrelated members of the opposite sex during periods of possession; (4) the evidence was legally and factually insufficient to support the trial court's deviation from a standard possession order; and (5) the trial court abused its discretion in permitting an expert to testify who had a conflict of interest. In a footnote, Mother also suggests Great Aunt lacked standing to file her Petition to Modify. We affirm.

I. Background[3]

S.A.H. was born on January 1, 2004. On October 23, 2006, the trial court entered a final decree of divorce dissolving the parents' marriage and naming them joint managing conservators for S.A.H. As mentioned, Mother was awarded the right to designate the child's primary residence, and Father was given a " modified standard possession order." Over the following three years, Mother was frequently unemployed, and Mother and S.A.H. frequently moved, including into a shelter on two occasions, and lived with several different men, at least two of whom were convicted felons.

In October 2009, Mother and Great Aunt both attended a family gathering. It was the first time in about 20 years that they had seen each other. Although Great Aunt had not previously met S.A.H., then age five, Mother allowed him to go home overnight with Great Aunt, who lived in Houston. Great Aunt returned S.A.H. to Mother in Jefferson, Texas the next day. Shortly thereafter, Mother called Great Aunt, and the two arranged for Great Aunt to take S.A.H. because Mother recently had broken up with her boyfriend and had no place to stay. It was understood between them that Great Aunt would keep S.A.H. until Mother " got her life together."

To facilitate Great Aunt's care of S.A.H., Great Aunt had drafted, and Mother signed, a Durable Power of Attorney, which provided Great Aunt with " all of the rights and responsibilities for enrolling [S.A.H.] in school, obtaining and providing medical treatment, and providing [S.A.H.] with shelter." The document further states that " [Great Aunt] will remain power of Attorney [sic] for [S.A.H.] until [Mother] is able to provide a stable living environment, including and not limited to

Page 915

medical and housing that both [Great Aunt] and [Mother] has mutual agreement [sic]." Mother asserted that at the time she handed S.A.H. over to Great Aunt, Mother inquired whether she should forward the child support payments (presumably from Father) to Great Aunt, but Great Aunt told her to keep them. Great Aunt stated that at the time she took possession of S.A.H., she " really didn't think about" whether the arrangement would be temporary or permanent, but when Mother did not ask for his return after fourteen months, Great Aunt believed she would have S.A.H. forever. The record contains significant evidence demonstrating a high quality of life for S.A.H. while living with Great Aunt and her husband, including participation in such activities as little league baseball and cub scouts.

The record contains conflicting testimony regarding the degree to which Mother attempted to be involved in S.A.H.'s life after turning him over to Great Aunt. Mother testified that Great Aunt actively frustrated her attempts to see S.A.H. over the next fourteen months by restricting her access, claiming the family was busy when Mother wanted to see S.A.H., and not inviting her to events involving S.A.H. Mother appears to concede, and there is evidence to establish, that she only visited S.A.H. on a handful of occasions over the approximately fourteen-month period between the time Mother left S.A.H. with Great Aunt and Great Aunt filed the petition to modify. These visits typically were brief and included spending Christmas at Great Aunt's home, spending time with S.A.H. at a McDonald's restaurant, taking him to see drag races (that apparently were rained out), and taking him camping once (although apparently not overnight). The paucity of visits apparently continued even after Mother moved to the Houston area in January 2010.

Great Aunt acknowledged not inviting Mother to several family events but denied ever telling Mother that she could not come visit because they were busy or had plans. Great Aunt insisted that over the fourteen months, Mother never " stepped up" to provide care, custody, or control of S.A.H. Great Aunt additionally maintained that Mother voluntarily relinquished all care, custody, and control to Great Aunt and never asked Great Aunt to return S.A.H. to her or did anything to indicate she wanted him returned.

On January 1, 2011, without having made prior arrangements with Great Aunt, Mother arrived at Great Aunt's house to take back possession of S.A.H. Mother stated that at that time, she felt she was financially and personally stable enough to take S.A.H. back and that she had revoked the power of attorney. She had a full-time job and was living with a boyfriend that Mother described as her fiancé (Fiancé ). When they arrived at the Great Aunt's house, however, S.A.H. was at a local restaurant celebrating his birthday.[4]

On January 3, Great Aunt filed a Petition to Modify in the district court with continuing jurisdiction, alleging that Mother had voluntarily relinquished primary care and possession of S.A.H. to her for at least six months and requesting that she

Page 916

be named sole managing conservator of the child and given the right to designate the child's primary residence. On February 8, 2011, the trial court entered temporary orders appointing Mother and Great Aunt as joint managing conservators, and giving Great Aunt primary custody and Mother visitation rights designed to gradually increase over time. During this period, Mother and Fiancé allegedly punished S.A.H. by forcing soap into his mouth. The trial court thereafter entered a mutual injunction restricting the parties from possession of S.A.H. in the presence of an unrelated person of the opposite sex with whom the party had a dating or intimate relationship. The court further restrained the parties from using corporal punishment, which Mother had acknowledged inflicting.

In its Final Order of Modification, the court named Mother, Father, and Great Aunt as joint managing conservators, gave Great Aunt the exclusive right to designate the child's primary residence, gave Mother and Father each a modified standard possession order, and made the injunction against possession around unrelated members of the opposite sex permanent. In its findings of fact and conclusions of law, the court found that Mother had " voluntarily relinquished the primary care, custody, and possession of the child to . . . [Great Aunt] for at least six months" and that such relinquishment was not a result of any military duty.[5] The court further stated there were " serious concerns regarding the veracity of the testimony of [Mother] as to the relinquishment events and factors." The court also concluded that appointing Great Aunt, Mother, and Father as joint managing conservators and granting Great Aunt exclusive right to designate the child's primary residence were in S.A.H.'s best interests.

II. Constitutionality of Section 156.101 and the Parental Presumption

Mother contends in her first issue that section 156.101 of the Texas Family Code, setting forth permissible grounds for modifying custody orders, is unconstitutional because it does not impose a parental presumption that must be overcome before rights can be taken from a parent and given to a nonparent.[6] Such a presumption is found in Chapter 153 of the Family Code, which governs original suits involving conservatorship, possession, and access of children. See Tex. Fam Code § 153.131(b) (establishing rebuttable presumption that a parent is to be appointed as managing conservator). Chapter 153 also establishes bases for rebutting the presumption, including sections 153.131(a) (when appointment of a parent " would significantly impair the child's physical health or emotional development" ), 153.131(b) (when there is a finding of a history of family violence involving the parent, and 153.373 (when " the parent has voluntarily relinquished actual care, control, and possession

Page 917

of the child to a nonparent . . . for a period of one year or more [and] the appointment of the nonparent . . . as managing conservator is in the best interest of the child" ) (emphasis added). Id. § § 153.131(a) and (b), 153.373; see also Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.--Fort Worth 2009, no pet.) (discussing methods for rebutting the parental presumption contained within Chapter 153).

Family Code Chapter 156 governs proceedings seeking modification of child support orders such as Great Aunt initiated in the present case. See Tex. Fam. Code § § 156.001-.410. It does not contain any provisions either expressly recognizing a parental presumption or providing methods to rebut such a presumption. Section 156.101, the section Mother contends is unconstitutional, permits modification of custody orders when it is in the best interest of the child and either (1) circumstances have materially and substantially changed, (2) the child is 12 years of age or older and has expressed a custody preference to the court, or (3) the conservator who has the exclusive right to designate the primary residence has voluntarily relinquished primary care and possession of the child for at least six months. Id . § 156.101(a). It contains no express reference to a parental presumption.

In In re V.L.K., the Texas Supreme Court confirmed that no parental presumption applies in modification proceedings. 24 S.W.3d 338, 343 (Tex. 2000) (overruling challenge to jury charge that included an instruction that no parental presumption applied to determination of custody in modification proceeding). The court explained that in modification proceedings there may be concerns for the child's stability not present in original actions. Id. The V.L.K . court, however, did not address any constitutional challenges. Id.[7]; see also Spencer v. Vaughn, No. 03-05-00077-CV, 2008 WL 615443, at *8 & n.4-5 (Tex. App.--Austin March 6, 2008, pet. denied) (mem. op.) (rejecting application of Troxel and Chapter 153 in modification context and instead applying V.L.K . and Chapter 156); In re M.A.S., No. 04-06-00629-CV, 2007 WL 2608552, at *1-2 & n.1 (Tex. App.--San Antonio Sept. 12, 2007, no pet.) (mem. op.) (mentioning Troxel but following V.L.K . in holding trial court erred in applying parental presumption in modification case, although constitutional issue was not explicitly raised).

In In re M.N.G., the Fort Worth Court of Appeals considered and rejected a constitutional challenge to section 156.101 similar to the one Mother raises here: that failure to apply the parental presumption in a modification proceeding denies a parent due process. 113 S.W.3d 27, 32-36 (Tex. App.--Fort Worth 2003, no pet.).[8] This court has not taken a position regarding the constitutionality of section 156.101. See In re C.A.M.M., 243 S.W.3d 211, 218-20 (Tex. App.--Houston [14th Dist.] 2008, pet. denied) (declining to address constitutional issue because appellant/father did not request appointment as sole managing conservator for the child or the right to

Page 918

designate the child's primary residence in his pleadings and only raised the issues after the order of modification was entered).[9] And we need not do so now. We hold that, even if a parental presumption applied, the trial court did not err in granting certain rights to Great Aunt under other unchallenged sections of the Texas Family Code; therefore, we need not resolve the constitutional issue raised. See In re B.L.D., 113 S.W.3d 340, 349 (Tex. 2003) ( " As a rule, we only decide constitutional questions when we cannot resolve issues on nonconstitutional grounds." ); In re J.F.C., 96 S.W.3d 256, 277-79 (Tex. 2002) (orig. proceeding) (holding evidence conclusively established one ground for termination, making alleged charge error of constitutional dimensions harmless); In re R.T.K., 324 S.W.3d 896, 899-901 (Tex. App.--Houston [14th Dist.] 2010, pet. denied) (holding in suit seeking modification of prior conservatorship that even if parental presumption applied, it had been rebutted); cf. Behzadpour v. Bonton, No. 14-09-01014-CV, 2011 WL 304079, at *3 n.2 (Tex. App.--Houston ...


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