Court of Appeals of Texas, Seventh District, Amarillo
IN THE INTEREST OF E.J.P. AND S.H.P., CHILDREN
Appeal from the 223rd District Court Gray County, Texas Trial
Court No. 37, 365, Honorable Phil N. Vanderpool, Presiding
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Quinn, Chief Justice.
mother of E.J.P. and S.H.P., appeals from the trial
court's order in a suit to modify the parent-child
relationship. Through two issues, she contends that the trial
court abused its discretion by 1) admitting evidence of her
current husband's alleged misconduct occurring
approximately five years prior to the court's order and
2) ordering her husband to attend Batterers Intervention
Program and requiring a hearing to ascertain compliance. We
children's father, T.P., filed a motion to modify the
parent-child relationship on March 30, 2016. In it, he
requested that the trial court modify a prior divorce decree.
In his view, the modification was necessary because
"[t]he circumstances of the children, a conservator, or
other party affected by the order to be modified have
materially and substantially changed since the date of
rendition of the order to be modified." He also
requested that the trial court appoint him "primary
joint managing conservator who has the exclusive right to
determine the children's residence, " and that C.P.
have "possession of the children as may be agreed or,
alternatively, as may be set by the Court."
hearing was held by the trial court, and the testimony
presented was contradictory. Nevertheless, it included
evidence of C.P. marrying or cohabitating with M.P. after
divorcing T.P. and evidence of M.P.'s history. That
history encompassed drug abuse and trafficking. So too did it
depict a history of physical violence directed at his own
child and at an ex-girlfriend.
evidence indicated that 1) the children of C.P. and T.P. came
to fear M.P., 2) M.P. threatened to "rip [S.H.P.'s]
bone[s] - kill him and rip his bones out, " 3) C.P. told
E.J.P. that M.P. threatened to harm E.J.P.'s father, 4)
E.J.P. and S.H.P. were being exposed to fighting and yelling
in the home, 5) excessive alcohol use was occurring in the
home, 6) C.P. would take E.J.P. with her when purchasing
alcohol, which sojourns made E.J.P. uncomfortable, 7) M.P.
gave S.H.P. a mohawk haircut which was against school policy
and caused the boy to feel embarrassment, 8) the children
became distraught and unwilling to live with their mother,
and 9) M.P. directed obscene finger gestures at the
children's grandparents in the presence of the children.
The children's therapist also testified and recommended
"that M.P. not be allowed to be with the kids
unless" he participated in anger management or parenting
classes or undergo counseling.
conclusion of the hearing, the trial court entered the order
made subject of this appeal. Through it, the court barred
C.P. from allowing the children to be in the presence of M.P.
"until [he] successfully completes parenting classes and
a Batterers Intervention Prevention Program
One - Admission of Evidence of Remote Bad Acts
initially contends that the trial court erred in permitting
M.P.'s prior girlfriend to testify about the physical
abuse she suffered when dating him. "Evidence of a prior
relationship . . . some 5 years prior was not relevant to the
issue of the appointment of the primary conservator, "
she believed. We overrule the issue.
and paramount in disputes regarding conservatorship over
children are the best interests of the children. Tex. Fam.
Code Ann. § 153.002 (West 2014) (stating that
"[t]he best interest of the child shall always be the
primary consideration of the court in determining the issues
of conservatorship and possession of and access to the
child"). Relevant to that inquiry can be the prior bad
acts of a parent. Our Supreme Court acknowledged as much in
Danet v. Bhan, 436 S.W.3d 793 (Tex. 2014). In that
case, the Court was reviewing an intermediate appellate
court's decision holding the evidence legally
insufficient to support a finding that Bhan's appointment
as the child's conservator would significantly impair the
child's physical health and emotional development. The
intermediate court erred in so ruling, according to the
Supreme Court. And, in so holding it noted the presence of
evidence which included Bhan's "conduct in the more
distant past, two or three years before the August 2010
trial, such as her drug use, criminal record, failure to
provide stability in the home, and abandonment of the
child." Id. at 797. Noting such historic
misconduct can certainly be interpreted as the Supreme Court
viewing the past bad acts of a prospective custodian as
relevant to the issue of custody.
our Texas jurisprudence has often observed that past conduct
of a parent can be indicative of how a parent will act in the
future. See In re H.B., No. 07-16-00100-CV, 2016
Tex.App. LEXIS 6620, at *2-3 (Tex. App.-Amarillo June 22,
2016, no pet.) (mem. op.) (stating that past actions often
indicate future conduct and a factfinder may measure a
parent's future conduct by his or her past conduct).
Furthermore, historic misconduct is especially relevant when
it actually corroborates more recent misconduct. See In
re D.L.W., No. 07-15-00243-CV, 2015 Tex.App. LEXIS
12372, at *9 (Tex. App.- Amarillo Dec. 4, 2015, no pet.)
(mem. op.) (noting that evidence of a parent's prior
conduct may be introduced to corroborate evidence of more
recent similar conduct); In re C.E.B., 604 S.W.2d
436, 443 (Tex. Civ. App.-Amarillo 1980, no writ) (noting the
circumstances in cases such as Bhan often concern a
parent and the risk he or she may pose to the child. But, the
individuals with whom the parent associates and to whom the
child is exposed can hardly be ignored. They too may affect
the child's well-being. See, e.g., In re
M.R.J.M.,280 S.W.3d 494, 502 (Tex. App.-Fort Worth
2009, no pet.) (stating that "[i]nappropriate, abusive,
or unlawful conduct by persons who live in the child's
home or with whom the child is compelled to associate on a
regular basis in his home is a part of the 'conditions or
surroundings' of the child's home"). So, just as
a parent's history is relevant in deciding matters of
custody, the history of those with whom the parent associates
and to whom the child is exposed also has relevance. Because
it does, the trial court at bar did not abuse its ...