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In re S.G.C.-G.

Court of Appeals of Texas, Fifth District, Dallas

April 25, 2019

IN THE INTEREST OF S.G.C.-G., A CHILD

          On Appeal from the 330th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-10-21940

          Before Justices Whitehill, Molberg, and Reichek

          MEMORANDUM OPINION

          KEN MOLBERG, JUSTICE.

         C.L. appeals the trial court's order in this suit to modify the parent-child relationship. In two issues, C.L. argues the trial court abused its discretion by applying the parental presumption in section 153.131 of the family code to a modification proceeding and by determining it was in the best interest of S.G.C.-G., the child who is the subject of the modification proceeding, for J.G. (Father) to be the conservator with the right to designate the primary residence of the child. We affirm the trial court's order.

         Background

         S.G.C.-G. is the child of Y.C. (Mother) and Father. Mother and Father were both teenagers when S.G.C.-G. was born in 2008. Because Mother and Father were attending school, when S.G.C.-G. was two months old, she began living with C.L. C.L. is not "blood related" to S.G.C.-G; rather, Y.C.'s adopted mother's nephew had been married to C.L.'s mother.

         In 2010, the Office of the Attorney General (OAG) filed a petition to establish the parent- child relationship between S.G.C.-G. and Father. The OAG also requested that the trial court appoint appropriate conservators for S.G.C.-G. and require Father to pay child support. The clerk's record indicates an "Agreed Judgment" was rendered on June 20, 2011. Although that judgment is not in the appellate record, based on the parties' testimony, it named Mother and Father as joint managing conservators of S.G.C.-G. and gave Mother the right to designate S.G.C.-G.'s primary residence.

         On November 15, 2013, Father filed a petition to modify the parent-child relationship, seeking to modify the June 20, 2011 agreed judgment. Father requested that he and Mother be appointed joint managing conservators, he be designated as the conservator with the exclusive right to determine the primary residence of S.G.C.-G, and Mother be ordered to pay child support. Mother filed a counter-petition to modify the parent-child relationship on January 7, 2014, requesting an increase in the amount of child support Father was required to pay.

         On March 13, 2014, the trial court signed an agreed order denying the requested modifications and incorporating the parties' agreement on issues relating to possession of S.G.C.-G. Father was given "standard possession" of S.G.C.-G.[1] C.L., although not a party to the proceedings, was given (1) the right to reasonable telephone access to S.G.C.-G. when the child was with Father or Mother; (2) the right to consent to medical and dental care for S.G.C.-G., including treatment involving invasive procedures; and (3) the right to share in educational decisions for S.G.C.-G. with Mother, provided that C.L.'s decisions were subordinate to Mother's decisions.

         On August 5, 2015, Mother took S.G.C.-G. to live in Paris, Texas. C.L. filed a petition to modify the parent-child relationship on October 7, 2015, alleging Mother had a history of mental illness and that both Mother and Father had a history of illegal drug usage, unstable work and living conditions, and outstanding arrest warrants. C.L. alleged S.G.C.-G. had been injured while in Mother's care, was having behavioral issues, and did not have appropriate and necessary clothing and supplies. C.L. requested to be appointed managing conservator of S.G.C.-G. with the exclusive right to designate the child's residence and that Mother and Father be required to pay child support.

         Mother failed to appear at a December 30, 2015 hearing before an associate judge on C.L.'s request for temporary orders. The associate judge determined S.G.C.-G. would reside with C.L., Father's child support payment would be re-directed to C.L., and a social study would be performed on Mother, Father, and C.L. Father's visitation with S.G.C.-G. continued as previously ordered, but Mother was allowed only supervised possession of S.G.C.-G. one Saturday a month. On March 24, 2016, Father filed a petition to modify the parent-child relationship, requesting that he be appointed the person who had the right to designate S.G.C.-G.'s primary residence.

         The trial court heard C.L.'s and Father's petitions to modify on November 17, 2017. The evidence at trial established S.G.C.-G. lived primarily with C.L. Father exercised his weekend possession of S.G.C.-G., but did not exercise his right to see her on Thursday evenings due to difficulties in "mak[ing] that two-hour window," and the conflict he had with C.L. over picking up and returning S.G.C.-G. timely. Mother had had limited contact with S.G.C.-G. since December 2015.

         It was undisputed C.L. had financially supported S.G.C.-G. since the child was two months old. It was also undisputed that, under C.L.'s care and the existing possession schedule, S.G.C.-G. was excelling academically, engaged in extracurricular activities, and behaved appropriately. Finally, it was undisputed that C.L. and Father had disagreements about possession times and Father's ability to participate in S.G.C.-G's school events and extracurricular activities.

         C.L. testified that she had lived in the same house since 1995. She had been married for eleven years, and her husband was helping to raise S.G.C.-G. C.L. had one daughter who was currently in college, but lived with the family during school breaks. C.L.'s husband had been convicted of a felony in 1993, but C.L. did not have a criminal history.

         C.L. denied that she had attempted to exclude either Mother or Father from S.G.C.-G.'s life, but admitted to conflict over Father's failing to adhere to the times in the possession order. C.L. believed neither Mother nor Father had a stable residence or employment and that it was in S.G.C.-G.'s best interest to continue to live with C.L.

         J.C. adopted Mother when she was four years old. In J.C.'s opinion, C.L. took good care of S.G.C.-G. In 2015, both Mother and S.G.C.-G. lived with J.C. in Paris and, in J.C.'s opinion, Mother did not adequately care for S.G.C.-G. J.C. also believed that Mother smoked marijuana, and Mother admitted that she had used marijuana as recently as the weekend prior to the trial.

         Father testified he and his wife had been married for almost six years and had two children. According to Father, there was no violence in his home. Although the family was currently living with Father's mother-in-law, they were moving into an apartment the next month in which S.G.C.-G. would have her own room. Father's wife testified that she was teaching S.G.C.-G. to sew and cook and to be more responsible. Father intended to stress the value of education to S.G.C.-G. and ensure she continued to do well in school.

         Father had been employed for seven months at a warehouse. Father admitted that, in the past, he had changed jobs frequently for different reasons, including his wife's illness and a better work opportunity. Father also admitted that, between 2014 and 2016, he drove with S.G.C.-G. in the car when he did not have a valid driver's license. However, he had resolved the outstanding warrants and, at the time of trial, had a valid driver's license.

         According to Father and his wife, C.L. had not included them in all of S.G.C.-G.'s activities. Specifically, C.L. had not invited them to S.G.C.-G.'s birthday parties, or had provided incorrect information about the location of the parties, had refused to allow them to enroll S.G.C.-G. in certain extracurricular activities, and had interfered with Father participating in S.G.C.-G.'s school activities. Mother testified C.L. had also excluded her from events in S.G.C.-G.'s life.

         In Father's opinion, the current environment was not the "whole family environment" for S.G.C.-G. He believed that S.G.C.-G. would benefit from living with her siblings and had more fun at his house than at C.L.'s house. Father testified he could show S.G.C.-G. her "heritage" and that, in his opinion, C.L. was attempting to separate S.G.C.-G. from her biological family. Father believed ...


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