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In re S.D.A.

Court of Appeals of Texas, Eighth District, El Paso

September 25, 2019


          Appeal from the 83rd District Court of Terrell County, Texas (TC#3148)

          Before McClure, C.J., Rodriguez, and Palafox, JJ.



         In this case concerning the custody of child S.D.A., Appellant Julian F. Martinez (S.D.A.'s paternal grandfather) challenges the trial court's order naming Alma Reams (S.D.A's paternal aunt/Julian's adopted daughter) as S.D.A.'s managing conservator. We will affirm the trial court's judgment.


         S.D.A. is the child of Shania Ashbaker and David Martinez.[1] In 2016, Shania and David were murdered. Following the death of S.D.A.'s parents, David's father Julian, took possession of S.D.A. on August 22, 2016, filed a petition for managing conservatorship as S.D.A.'s grandfather, and obtained an order naming him S.D.A.'s nonparent sole managing conservator. Julian's conservatorship over S.D.A. was later challenged by several relatives. As is relevant to this appeal, Alma Reams intervened in the custody battle over S.D.A. Alma Reams is the older sister, by fifteen years, of David; the adopted daughter of Julian; and S.D.A.'s paternal aunt. Alma and Julian eventually became the two main relatives seeking conservatorship of S.D.A. The focus of the dispute on appeal is whether the trial court erred by (1) switching conservatorship of S.D.A. from her grandfather Julian to her aunt Alma and (2) denying Julian unsupervised access to S.D.A. At the time of trial, S.D.A. was approximately two years old.

         Evidence at Trial

         For organizational purposes, we will divide up our discussion of the trial evidence into three parts: (1) evidence presented by Alma Reams; (2) evidence presented by Julian Martinez; and (3) evidence from S.D.A.'s guardian ad litem and a caseworker appointed by the trial court.

         Alma's Case

         Alma Reams testified that she is S.D.A.'s aunt, David's brother, and Julian's adopted daughter. Alma resided in Georgetown, but was awarded visitation of S.D.A. in Sanderson, which is a seven-hour drive from her home. Alma admitted that she was unable to attend nine scheduled visits with S.D.A. due to various family and personal obligation.

         Alma testified that she and her husband have a four-bedroom house in Georgetown. She and her husband sleep in one bedroom, her daughter had a room, her son had a room, and the fourth bedroom was empty. Alma stated that she asked her children how they felt about the family taking in S.D.A., and that her two children and her husband were excited. She further stated that her ultimate goal was to adopt S.D.A. in the future.

         Alma testified that Julian sexually abused her in middle school and high school. She recounted that he would "do things like lay on top of me" and that Julian would see her from down the hall, walk toward her, push her on the bed, pretend to unbutton his pants, and say "Do you want to feel like how it feels to be raped?" She would kick him and push him and tell him to get off of her, and he would start buttoning his pants, laugh, and walk away. She also testified that Julian would punch her, slap her, verbally abuse her, and open the shower curtains while she was showering and laugh. She testified that Julian would talk sexually about teenage girls, including her friends and neighbors. Julian would also prevent Alma from talking to anyone he thought might be related to her biological father. Alma did not tell her mother about these allegations until within a year and a half of trial, she did not tell her mother about her allegations during the divorce because she wanted to protect her brothers and because she was afraid of Julian.

         Alma testified that the relationship between Julian and her brother David was "awful" and Julian would make comments about David's weight and call him a pig and stupid. Alma also admitted that she does not get along with Julian's current wife Elizabeth.

         Julian's Case

         Julian Martinez obtained possession of S.D.A. in August 2016 on the day of Shania and David's death. Julian testified that he was common-law married to Elizabeth and that although he had not yet formally married Elizabeth, he has filed common law marriage documentation at the courthouse. Julian stated that he made over $100, 000 a year as a field service technician for a company that maintained and operated field compression units Mondays through Fridays from around seven in the morning to six or seven in the evening, and he was on-call every other weekend, though his work hours could be variable. Julian's wife Elizabeth had worked at Dairy King, but at the time of trial the business was closed and Elizabeth was out of work. Elizabeth would watch S.D.A. while Julian was at work, and Elizabeth's mother would watch S.D.A. if Julian and Elizabeth were unavailable. Julian provided insurance for S.D.A. through his employment. Julian testified that he would eat meals with S.D.A. on weekends, do playtime every evening, and read her kid stories and Bible stories. According to Julian, S.D.A. was bonded to Elizabeth and called her "mother" or "memaw."

         Julian testified that S.D.A. suffered from water-warts but that he had taken her to the doctor, who told him to use Neosporin to keep them from spreading or turning into a staph infection. He further testified that he and Elizabeth also use natural remedies like apple cider vinegar to manage S.D.A.'s condition. According to Julian, S.D.A. is allergic to strawberries, all tomatoes, and red and purple grapes.

         Julian denied ever making unwanted sexual advances toward anyone. He also specifically denied Alma's allegations of physical and sexual abuse. He also denied ever abusing David or making comments about his weight. Julian testified that he was forthcoming about sexual abuse allegations made by his ex-girlfriend's daughter, but he maintained that those allegations were false. According to Julian, he was never arrested, and he and his attorney made attempts to speak with law enforcement about the allegations, but law enforcement cancelled the meetings and the 83rd District Attorney's Office issued a declination letter.

         Elizabeth Birkenfeld Martinez identified herself as Julian's wife at the hearing. She disputed characterizations of her marriage in the child custody assessment about her marriage being on again and off again, maintain that her and Julian's relationship had been consistent and was not a marriage of convenience. Elizabeth was married to her first husband until 2000, and she had four children, all of whom were adults at the time of the hearing. Elizabeth was married to her second husband from 2009 to 2015, when he died. She and Julian had been cohabiting since June 2015. She had been working part-time at Dairy King from 11 a.m. to 2 p.m. but had not been working recently because the owner of the business was ill. Elizabeth participated in interviews with child custody evaluator Kimberly Ilse and guardian ad litem Gail Schroeter. Elizabeth disputed an assertion in the child custody report stating that she had not turned over certain documents or criminal records, testifying that she had attempted to provide those materials but her attempts were unsuccessful for various reasons.

         Elizabeth admitted that she had been arrested for passing hot checks but testified that the reason she had issues with hot checks was because once her first husband withdrew all the money in an account without telling her, and her second husband was not good with finances. Elizabeth also lost her job with her former employer because money had gone missing, though she testified she cooperated with law enforcement, allowed her home to be searched, and was never arrested for theft. She denied using illegal drugs or abusing prescription drugs, but she did admit to smoking cigarettes, though not around S.D.A. She testified that she and Alma Reams did not get along, and that Alma "lashes out" at her.

         Elizabeth testified that Julian was "very active" with S.D.A. and that he would read to her and play with her. She stated that she and Julian both took care of S.D.A. Elizabeth further testified that while she was aware of the allegations made against Julian, that she had not observed anything that would make her nervous with him being around Elizabeth's own daughter, young children, or young girls. Elizabeth described an altercation with Alma at Dairy King in which Elizabeth had asked Alma what she fed S.D.A. the night before because S.D.A. had been throwing up. Alma named several fruits, Elizabeth told Alma that S.D.A. was allergic to those fruits, Alma repeatedly told Elizabeth that she needed to tell her about S.D.A.'s allergies, Elizabeth walked away, and Alma called the sheriff's department.

         The court also heard other testimony from Julian's family members, including Alma's brother, in which the witnesses testified as to Julian's interactions with S.D.A.

         Testimony from the Caseworkers

         Kimberly Ilse, an intermediate school counselor and social study evaluator, performed a case study in connection with this matter. Both parties stipulated that she would testify as an expert. In her interview with Alma, Alma relayed her allegations against Julian. She visited Alma house, where she observed Alma and her husband interacting with their children. Ilse described the family as being strong, with the children being happy, "very strong, " "very polite, " "very well-spoken, " and "very sure of who they were" and Alma and her husband Ben being very "united." Their children were also included as part of the decision-making process. Neither Alma or Ben had any issues relating to alcohol or drug abuse, criminal history, or involvement with CPS. Ilse described their home in Georgetown as being in a quiet neighborhood, with an extra bedroom ready for S.D.A. Alma provided strong character references. Ilse found Alma to be credible. Ilse was able to witness S.D.A. interacting with the Reams family at a restaurant. Although the interaction was only for half an hour, Ilse said that S.D.A. seemed very happy with no distress whatsoever. Ilse did not believe that ...

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