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Rolle v. Hardy

Court of Appeals of Texas, First District

June 1, 2017

ANWAR ROLLE, Appellant
v.
DERICK LEJOHN HARDY, Appellee

         On Appeal from the 247th District Court Harris County, Texas Trial Court Case No. 2009-28444

          Panel consists of Justices Keyes, Bland, and Huddle.

          OPINION

          Evelyn V. Keyes Justice

         This is a child custody case regarding the conservatorship of two children, R.H. and D.T.H., whose mother passed away. Appellant, Anwar Rolle, is the children's maternal uncle, and he petitioned the trial court to name him the sole managing conservator of the children. The children's father, Derick LeJohn Hardy, who was a joint managing conservator of the children at the time of their mother's death, moved to dismiss Rolle's suit on the basis that he could not establish standing to maintain his claim. The trial court found that Rolle failed to demonstrate by "satisfactory proof to the court that . . . the order requested is necessary because the [children's] present circumstances would significantly impair [their] physical health or emotional development. . . ." See Tex. Fam. Code Ann. § 102.004(a)(1) (West 2014).

         In his sole issue on appeal, Rolle challenges the trial court's ruling, arguing that (1) he presented "satisfactory proof" that the order requested in his petition was necessary because the children's present circumstances would significantly impair their physical health or emotional development. Rolle further argues that (2) the trial court erred to the extent that it required him to establish "immediate harm" to the children and (3) in effectively requiring him to "overcome the parental presumption" and (4) to establish his success on the ultimate merits of his case.

         Because it appears from the record that the trial court did not properly apply the standard of proof in evaluating whether Rolle had standing to pursue a modification of the children's conservatorship order under section 102.004(a)(1), we reverse the trial court's order dismissing Rolle's petition and remand the case for further proceedings consistent with this opinion.

         Background

         R.H., born January 10, 2006, and D.T.H., born December 8, 2010, are the subjects of this suit. Their mother, Cortina Rolle ("Mother"), and their father, Hardy, were appointed joint managing conservators of the children in 2012, with Mother having the right to designate the children's primary residence. Accordingly, the children resided with Mother from the time of their births.

         On September 6, 2015, Mother, who had cancer, died. At that time, R.H. was nine years old and D.T.H. was four years old. Hardy subsequently took over the day-to-day care of the children. He brought the children, who had previously had significant interaction with Mother's family, and especially Rolle and his wife, for a one-hour visit with Rolle on September 8, 2015. However, Hardy refused to bring the children to visit with Rolle's cousin, who was a hospice therapist, and he did not bring the children to Mother's memorial service that occurred at the end of September 2015.

         On September 29, 2015, Rolle filed a petition to modify the parent-child relationship requesting that he be appointed sole managing conservator of the children. Rolle supported his petition with an affidavit in which he averred that Mother had requested that Rolle and his wife care for the children in the event of her death and stated that he and his wife had been very active in the children's lives. He also described the events following Cortina Rolle's death that caused him concern regarding Hardy's taking custody of the children. He alleged that Hardy had failed to support the children financially, that he had never been involved in the children's lives prior to Mother's death, and that he was not providing the children with proper emotional support or living arrangements.

         Hardy moved to dismiss Rolle's petition for lack of standing, arguing that Rolle "cannot show under Texas Family Code § 102.004 that the children's present circumstances would significantly impair the children's physical health or emotional development."

         At the hearing on standing, Rolle and Hardy both testified. Rolle testified that he had lived in the same home with Mother and the children for a few years, until he moved out when D.T.H. was approximately one year old. Mother and her children subsequently moved out of the family home to live with her fiancé, with whom Mother had a third child, C.L.[1]

         Even after he moved, Rolle maintained a close relationship with his nieces. Rolle testified that the children were very close with Mother and with her family and that they spent holidays and birthdays together and spent time together on the weekends. Rolle testified that prior to Mother's death, he was very involved in the children's lives, including helping R.H. with her school work. Rolle stated that, prior to his helping R.H., she had had to repeat the second grade, but after he worked with her, she "received the most-improved student award." He testified that during the 2014-2015 school year, he worked with Mother to begin the process of having R.H. evaluated for her dyslexia and that the process "takes almost a year." He stated that at the end of the 2014-2015 school year the school informed Mother that it had officially diagnosed R.H. with dyslexia, and it scheduled a formal meeting for the beginning of the next school year. Rolle had planned to attend this meeting with Mother when the 2015-2016 school year started, but Mother passed away on September 6, 2015. Rolle testified that Hardy did not sign the papers for the school to proceed with providing special services to R.H. for her dyslexia. Rolle also acknowledged that the girls' school counselor testified that R.H.'s grades had improved over the course of the semester, although she was still failing at least one class.

         Rolle also stated that Hardy did not visit the children regularly prior to Mother's death or provide financial support for them, and he provided documentation that Hardy owed child support arrears for R.H. and D.T.H. and others of his ten children and that Hardy had been named in several different child support enforcement actions. Rolle was surprised when, on the afternoon of Mother's death, Hardy's mother picked R.H. and D.T.H. up from Mother's apartment, where they had been staying with Mother's roommate. Rolle stated that Hardy never told anyone in Mother's family what he was doing. Rolle testified that

          Hardy also refused to provide counseling for the children, that he waited "a few days" to tell the children their mother had died, and that he had allowed only limited contact between the children and Mother's family.

         Rolle also testified that the day after Mother's death he received a phone call from Hardy asking whether Mother had a life insurance policy. Rolle believed that Hardy "only wants these kids for money." Rolle and Hardy were able to arrange for the children to visit with Rolle and his wife two days after Mother's death, but the visit was only one hour long. Rolle testified that R.H. was unusually withdrawn and quiet, although he also acknowledged that, at that point, she knew her mother had died so she could have been upset about that. Rolle testified that the girls were in pajamas that day, that they appeared "disheveled, " and that their hair was not combed. He reached out to Hardy "numerous times" to arrange other meetings with the girls and to have them attend Mother's memorial service, but Hardy refused.

         Rolle further testified that Hardy was receiving social security benefits for the children and had completed that paper work in September 2015, even though Hardy had failed to complete the necessary school paper work to get R.H. educational accommodations. Rolle also did not believe that Hardy was using the social security money appropriately because his nieces were not wearing appropriate clothing when he saw them at Thanksgiving-neither had on a jacket, one had no underwear, and the other had on "a boy's shoes that belonged to her cousin . . . and the shoes were too big."

         Finally, Rolle testified that Hardy represented himself as being a barber, but Rolle could not find any indication that Hardy had obtained a license to work as a barber in Texas. Rolle also testified that he was concerned about Hardy's criminal background, "[b]ecause Mr. Hardy has a background of cocaine, multiple weapons, assault with a deadly weapon. . . . And I know that my sister told me [in 2013 or 2014] that he sold weed from the barbershop." Rolle was also concerned about Hardy's living arrangements. He testified that, at the time he filed his petition, he did not know where Hardy was living or if his living arrangements were appropriate for the children. Rolle further stated that, when he visited with the children at Thanksgiving, R.H. could not tell him where she lived.

         Other family members and friends of Mother's testified at the hearing as well, and their testimony was largely similar to Rolle's. Rolle's wife, Deanna Davis-Rolle, testified about the close relationship between the children, Mother, and Mother's family. And she also expressed concerns about Hardy's failure to adequately provide for the children or be involved in their lives. Her testimony concerning the circumstances surrounding Mother's death recounted similar events to those provided by Rolle.

          Davis-Rolle stated that on the afternoon of Mother's death, Hardy, his mother, and his sister returned to Mother's home without the children. He informed them that the children "are his kids and no one was going to take his kids." She agreed with Rolle that, on September 8, 2015, the children "were just very quiet and withdrawn, " which, based on her previous interactions with them "was very different for them." R.H. in particular was less outspoken and "was unsure of what she wanted to say to us, almost that she had been coached." When asked to describe the children's physical appearance during this meeting arranged by Rolle and Hardy, Davis-Rolle testified that R.H. was in her pajamas. And she testified that, during their Thanksgiving visit, D.T.H. repeatedly cried and asked about her mother and that R.H. was very withdrawn, stating, "She would go into periods of being happy, to being very sad and crying hysterically, shaking in my husband's arms."

         Davis-Rolle stated that, based on her knowledge of the children, it would have been in their best interest to receive some type of grief counseling, but to the best of her knowledge, Hardy had not taken the children to any kind of counseling. She also testified that she was concerned about their emotional well-being generally, stating, "For [children] to be withdrawn from everything that they know in an instant is very concerning to me. I'm concerned about their emotional stability, both short term and long term, because I feel like they will feel abandoned by a family, the only family that they knew." She did not believe it was in the children's best interest for Hardy to have taken them away from Mother's family.

         Mother's friend, Cherisse Rutherford, also testified. Like the Rolles, she was familiar with the children and with Hardy. Rutherford testified that the children were very close with Mother, while Hardy had had limited interaction with the children prior to Mother's death. She stated that Hardy's sister would occasionally pick the children up so they could play with their cousins; in contrast, Mother's family, and especially Rolle and his wife, were "involved in those children's lives every single day, " helping Mother pick them up from school and attending their birthday parties and special events.

         Rutherford testified that when Mother found out that she had cancer, she reached out to Hardy to let him know and tell him that she wanted Rolle to care for her children. According to Rutherford, Hardy asked Mother, "Well, what the 'F' do you want me to do?" and "hung up in her face." Rutherford believed that, in the weeks before her death, Hardy's sister kept the children for a few days. Mother wanted the children to "spend time with their cousins and she needed a day or two break." Rutherford was also concerned for the children's emotional well-being since they have been unable to see Mother's side of the family.

          Cornelius Foster, Rolle's stepfather, testified that Mother and her children had lived with him and his wife for a period of time. He stated that the children had a "wonderful" relationship with Mother and were very bonded to her. In the two or more years that Mother lived with him following D.T.H.'s birth, he only saw Hardy on one occasion, when Hardy came over to bring money for supplies for the baby. Foster also stated that Rolle was close to his nieces and saw them regularly before Mother's death. Foster acknowledged that Mother would take the children over to Hardy's mother's home, and he testified that he had "no idea what happened there" or whether Hardy ever saw the children somewhere else besides his or Mother's home.

         Hardy also testified. He stated that he first learned that R.H. was his child when she was approximately four years old, and he "immediately got inside [R.H.'s] life." He stated that he was involved in both girls' lives from that time to the present. He testified that Mother would bring the girls by the shop where he worked and "[i]f they need[ed] anything, [Mother] would get money from me." He also disagreed with Rolle's testimony that he had never been over to Mother's family's home, testifying that he had been there on "plenty of occasions." Hardy testified that he saw the children regularly before Mother's death when she would bring the children to visit him and on birthdays and other occasions, and he presented some photographs of himself with Mother, R.H., and D.T.H., as well as photographs of him and the children following Mother's death. He acknowledged that he was behind on his child support payments, but he also testified that he gave money and other support to Mother directly.

         Hardy testified that he had five previous convictions, and his criminal background was admitted into evidence. His last conviction was in 2015, when he was arrested for being a felon in possession of a firearm. He testified that he had left work with a large amount of cash from the shop and took a firearm for protection. He testified that he was currently on probation for that offense and that he was abiding by all of the terms of his probation. He also stated that he had never carried a weapon or committed any crimes while the children were in his care. Hardy's other convictions, including a 2001 misdemeanor weapons charge and a 2002 felony possession of cocaine charge, all occurred prior to R.H.'s birth. Hardy also testified that he was "taking care of" his child support arrearages.

         Regarding his obtaining custody of the children, Hardy stated that, after he and Mother discussed her cancer diagnosis, they discussed plans for the children. Hardy testified that, in the summer of 2015, Mother expressed a desire to have the children come stay with him. He testified that they started living with him in August 2015, just around the time school started. Hardy stated that he took the children back to Mother in the week before she died so that the kids could spend some time with their mother. He testified that he was worried about her health, and he denied ever being dismissive of ...


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