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In re D.S.H.

Court of Appeals of Texas, Ninth District, Beaumont

April 20, 2017

IN THE INTEREST OF D.S.H.

          Submitted on January 5, 2017

         On Appeal from the 418th District Court Montgomery County, Texas Trial Cause No. 09-10-09572-CV

          Before McKeithen, C.J., Kreger and Johnson, JJ.

          MEMORANDUM OPINION

          STEVE McKEITHEN Chief Justice

         This is a pro se appeal by M.H., the father of D.S.H., [1] from the trial court's order in a suit to modify the parent-child relationship. In ten appellate issues, M.H. challenges (1) the finality of the trial court's order, (2) the veracity of the evidence adduced at the temporary order hearing, (3) whether the trial court erred by not providing an interpreter at the temporary orders hearing to assist M.H. due to his hearing difficulties, (4) the sufficiency of the evidence supporting the jury's verdict regarding conservatorship, and (5) the trial court's calculation of the amount of child support it ordered M.H. to pay. We affirm the trial court's order in part and reverse and remand in part.

         BACKGROUND

         The child's mother, A.H., filed a petition to modify the parent-child relationship, in which she asserted that circumstances had materially and substantially changed since the order to be modified was signed. A.H. asserted that D.S.H. was twelve years of age or older and would express his desires to the court regarding the parent who he felt should have the exclusive right to designate his primary residence. A.H. requested that she be appointed the person with the exclusive right to designate D.S.H.'s primary residence and requested that she be named sole managing conservator. A.H. alleged that M.H. has a history of child neglect directed against D.S.H. and asked the court to require that M.H.'s periods of visitation "be continuously supervised by an entity or person chosen by the Court." A.H. requested that the trial court enter temporary orders and a temporary restraining order, and she sought an order requiring M.H. to pay child support.

         M.H. filed an answer, as well as a counter-petition to modify the parent-child relationship. M.H. contended in his counter-petition that A.H. should be restricted to one visit with D.S.H. per month or a possession order should be entered, and M.H. maintained that A.H. "has a history or pattern of child neglect directed against the child[.]" M.H. asserted that circumstances had materially and substantially changed and that the child support payments previously ordered should be terminated. According to M.H., the support payments previously ordered do not comply with the guidelines contained in Chapter 154 of the Texas Family Code, and termination of the child support would be in D.S.H.'s best interest. M.H. pleaded that A.H. "should be ordered to pay child support, . . . health insurance premiums for coverage on the child, and 50 percent of the child's uninsured medical expenses." M.H. also requested the entry of temporary orders. Although M.H. alleged that the ordered child support did not comply with Chapter 154 of the Texas Family Code, [2] M.H. did not request credit for social security payments D.S.H. was receiving due to M.H.'s disability in his answer or his counter-petition. M.H. filed a motion requesting the appointment of an interpreter to assist him during the proceedings due to his hearing problem, and he subsequently filed a second motion requesting appointment of an interpreter and modification of court procedures.

         After conducting a hearing on the requests for a temporary order, the court appointed A.H. and M.H. as temporary joint managing conservators and awarded A.H. the exclusive right to determine D.S.H.'s residence. The trial court also gave A.H. the exclusive right to receive child support and to make medical and dental decisions, psychological treatment decisions, and educational decisions for D.S.H. As part of the temporary order, the trial court entered a standard possession order, under which M.H. elected to exercise possession of D.S.H. on the first, third, and fifth weekends of the month. In addition, the trial court determined that M.H.'s net resources per month are $1733.45 and A.H.'s net resources are $0, and "[t]he percentage applied to the first $8, 550 of [M.H.]'s net resources for child support is twenty percent. The trial court also signed a separate order requiring M.H.'s employer to withhold $396.69 per month for child support.

         At trial, [3] which occurred approximately two years after the trial court entered temporary orders, A.H. testified that she and M.H. divorced in 2007, and she currently resides with her fiancé, her mother, her three other children, and D.S.H. A.H. explained that she was awarded primary custody of D.S.H. under the temporary orders, and she testified that D.S.H. was doing well and making good grades. A.H. testified that she and D.S.H. have a close relationship and D.S.H. confides in her. A.H. testified that if she were awarded primary custody of D.S.H., she could communicate with M.H. and they could agree on decisions regarding D.S.H.'s medical care and education. A.H. testified that M.H. receives disability, so D.S.H. also receives disability payments. A.H. testified that although D.S.H. was ordered to begin paying child support two years ago when the temporary order was entered, he only paid child support for ten months. A.H. testified that M.H. had only exercised his visitation rights a few times since the temporary orders were entered.

         According to A.H., when D.S.H. was living with M.H., D.S.H. told A.H. that he was having a hard time, could not take it anymore, and intended to run away. A.H. explained that D.S.H. had run away at least three times, had stolen money from M.H., and had been in jail, but since D.S.H. has been living with her, he has not been in any trouble. A.H. expressed concern that D.S.H.'s previous issues would return if he went back to live with his father. During cross-examination, A.H. testified that she currently resides in a four-bedroom trailer, and D.S.H. has his own room. A.H. testified that she is currently on welfare. A.H. testified that M.H. neglected D.S.H. by not providing for his needs and being unable to stop D.S.H. from running away, and she explained that she had seen photographs D.S.H. had taken of the travel trailer where he had resided with his father. A.H. testified that when she picked up D.S.H., he had a trash bag filled with some items, but she did not look through the items because she was concerned with comforting D.S.H.

         D.S.H., who was seventeen and a half years old at the time of trial, testified that he currently resides with his mother, three siblings, stepdad, and grandmother, and he has his own room. D.S.H. testified that he is maintaining "pretty good" grades at school, and is involved in extracurricular activities and a work program. D.S.H. also testified that he has been accepted to a junior college and has applied to another college. D.S.H. explained that, with the exception of the trial, he feels positive about his life, and he enjoys living with his mother. In addition, D.S.H. testified that he faces consequences from his mother if he slacks academically or at work. D.S.H. testified that he has a good relationship with his mother.

         D.S.H. explained that he felt that if he were sent to live with his father, all of the progress he has made will "wash away[.]" D.S.H. described his relationship with his father as "rough" and lacking any "bonding time." D.S.H. explained that he lived with his father for several years in an R.V. park, and his father eventually bought a piece of land, put a steel building on the land, and put bunk beds in the building. According to D.S.H., when he and M.H. first moved into the steel building, they had no electricity, running water, or indoor kitchen. D.S.H. testified that he and his father cooked on a propane unit that was "outside in the woods . . . by the cabin[.]" According to D.S.H., his father had a gas generator that ran for two to three hours per day. D.S.H. testified that his father sometimes locked him in the cabin. D.S.H. explained that the living conditions were so harsh that he could not stand living there, and he believes that his father still lives in the same building. D.S.H. testified that when he went to live with his mother, M.H. only exercised visitation two or three times, and when M.H. came to get him, M.H. argued with him and told him he was ruining his life. D.S.H. explained that M.H. recently tried to pick him up for a visit, but D.S.H. was fearful and did not feel comfortable going with M.H. because "he just started immediately yelling at me like usual and saying negative things[.]"

         According to D.S.H., M.H. has slapped him across the face two or three times when D.S.H. was fourteen or fifteen years old. D.S.H. explained that on one occasion, his father gave him $100, 000 in cash and instructed him to bury it on the property. D.S.H. kept some of the money, but his father caught him with the money and later pressed charges. D.S.H. testified that he had undergone testing by psychiatrists because his father insisted that "there was something wrong with me in my head[, ]" but the doctors concluded that D.S.H. was "just a stressed teenager[.]" ...


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