Guardianship of C.E.M.-K., a Minor.

• Decision Date: 16 February 2011
• Docket Number: No. 04–10–00385–CV.,04–10–00385–CV.
• Citation: 341 S.W.3d 68
• Parties: GUARDIANSHIP OF C.E.M.-K., A Minor.
• Court: Texas Court of Appeals

341 S.W.3d 68

GUARDIANSHIP OF C.E.M.-K., A Minor.

No. 04–10–00385–CV.

Court of Appeals of Texas, San Antonio.

Feb. 16, 2011.

Lawrence L. Garcia, Lawrence L. Garcia & Associates, P.C., San Antonio, TX, for Appellant.Amy E. Bitter, Attorney at Law, Castroville, TX, James E. Monnig, Marcus P. Rogers, Attorneys at Law, Michael L. Gayler, Law Office of Michael L. Gayler, Steven Hearne, Hearne & Stoddard, P.L.L.C., Jo Chris G. Lopez, Robinson C. Ramsey, Langley & Banack, Inc., San Antonio, TX, for Appellee.Sitting: REBECCA SIMMONS, Justice, STEVEN C. HILBIG, Justice, concurring in the judgment only, MARIALYN BARNARD, Justice.

OPINION

Opinion by: MARIALYN BARNARD, Justice.

This is an appeal from a judgment in a suit affecting the parent-child relationship. After the death of C.E.M.-K.'s mother, M.M., a dispute regarding custody arose between the child's former stepfather and her biological father. Following a bench trial, the trial court appointed the child's former stepfather, appellee B.H.M., sole managing conservatorship of the minor child, and the child's biological father, J.P.K., possessory conservator. J.P.K. appeals, contending: (1) B.H.M. had no standing, and therefore the trial court's judgment is void; and (2) the trial court abused its discretion in appointing B.H.M., rather than J.P.K., as the child's managing conservator. We affirm the trial court's judgment.

Background

The extensive facts begin when J.P.K. and M.M. were married in 1995. On January 27, 1999, M.M. gave birth to a female child, C.E.M.-K., who was conceived through artificial insemination. After the child's birth, the couple ceased cohabiting, and M.M. filed for divorce in October 2000. The couple was divorced by a final decree signed by a Hays County, Texas trial court on July 12, 2002. Pursuant to the divorce decree, M.M. was named sole managing conservator of C.E.M.-K. J.P.K. was named possessory conservator, and the parties agreed he was to have possession “at all times agreed to by the parties.” The parties also agreed J.P.K. would be given reasonable telephone access to C.E.M.-K., and that he would notify M.M. “a reasonable period in advance of when he is requesting possession of the minor child.” It seems this arrangement worked for a time, and J.P.K., who is an artist, kept C.E.M.-K. during the day when M.M. was at work. However, according to J.P.K., relations with M.M. became strained sometime in 2003 when he learned M.M. was having an affair with the principal of the school where she worked. M.M. moved away from the family residence in Wimberley to San Antonio, taking C.E.M.-K. with her. J.P.K. claimed he learned there were child abuse issues in the principal's family, and he contacted an attorney. This, according to J.P.K., was when “World War III” began with M.M.—she felt threatened. It appears that from that point forward, M.M. simply denied J.P.K. access to C.E.M.-K.

Around this same time, J.P.K. began to suffer debilitating medical problems stemming from injuries suffered in 1969 during his military service in Vietnam. In early 2004, he underwent a kidney transplant, and ultimately had open-heart surgery to repair a heart valve. In the summer of 2004, and on the mend from his kidney transplant, J.P.K. began writing letters to M.M. asking to “re-establish” his relationship with C.E.M.-K., stating it had been a long time since he had seen the child. In a subsequent letter, J.P.K. states he had not seen the child since December 2003. Six letters from J.P.K. to M.M. were admitted into evidence. The letters are from June 2004 to February 2005. In each letter J.P.K. asked to make arrangements to see C.E.M.-K., and asked to allow C.E.M.-K. to call him as well. In the last letter, J.P.K. referenced a phone message left for him by M.M. in which she allegedly stated she refused to allow J.P.K. to see C.E.M.-K. because neither he nor his mother are of any relation to C.E.M.-K. In response, he reminded her to read the divorce decree and the child's birth certificate.

J.P.K. admitted he stopped paying court-ordered child support in 2004. He stated that given M.M.'s refusal to allow him to see C.E.M.-K., it was his only option because he could not afford an attorney to go back to court to help him enforce his visitation rights. J.P.K. moved to Florida in late 2004. It appears from the record that after the February 2005 letter, there was no contact between J.P.K. and M.M. or J.P.K. and C.E.M.-K. J.P.K. testified, however, that he continued to seek help with the visitation issue, writing law enforcement, courts, attorneys, and others. However, given his lack of finances—his only income was military disability and money from a few art sales—no one would help him.

M.M. met B.H.M. in October 2003 when M.M. hired B.H.M.'s company to put up a fence at her new home in San Antonio. They began dating in January 2004, and B.H.M. and two of his three sons moved into M.M.'s home in November 2004. M.M. became pregnant, and the couple married in June 2005. Their daughter was born September 20, 2005. M.M.'s house had three bedrooms—the couple stayed in one room, B.H.M.'s boys in another, and C.E.M.-K. and the couple's new child stayed in the third bedroom.

Unfortunately, all was not well in the home. M.M. had a serious alcohol addiction, which eventually tore the family apart. B.H.M. testified that when he first met M.M., she drank without a problem. Later, she was unable to control her drinking. B.H.M. admitted that when M.M. drank she could be violent, and at times was unable to take care of the children or even get out of bed. In 2006, he came home one evening and found M.M. drunk and angry. After dinner, he heard his youngest son screaming and found M.M. beating him. He admitted grabbing M.M. by the neck, dragging her out of the room, and slapping her. He then left the house with the boys, and a neighbor came over and took C.E.M.-K. and her half-sister to her house. M.M. called the police and filed a report. B.H.M. testified he was arrested a year later, but was placed on deferred adjudication, which he successfully completed. B.H.M. returned with his sons, and the couple resumed their relationship.

B.H.M. stated that M.M. was eventually able to stop drinking on her own. However, when her brother died, she began drinking again, and her drinking was exacerbated by prescription drug use. B.H.M. admitted buying alcohol for M.M., but stated he either had to provide it for her or she would drive under the influence and buy it herself, which might result in her death or arrest or the injury or death of some other motorist. In the spring of 2008, B.H.M. stated M.M. was “in a bad way,” and someone called Texas Department of Family and Protective Services (“the Department”). M.M. was required to seek treatment for her alcoholism. While she was in a rehabilitation facility, all four children stayed with B.H.M. After M.M. completed rehabilitation, the Department closed the case. According to B.H.M., M.M. stayed sober for approximately two months, but then began to drink again. In June 2008, B.H.M. and M.M. separated; B.H.M. took his sons and left. M.M. filed for divorce, which was finalized on September 15, 2008. Pursuant to the divorce decree, B.H.M. and M.M. were named joint managing conservators of their child, but M.M. was given primary possession. After the divorce, C.E.M.-K. and her half-sister lived with M.M., but B.H.M. and his boys lived close by. B.H.M. testified that after the divorce, he saw C.E.M.-K. and his daughter “constantly.” He stated that he fed the children, made sure they got to school, and did all he could to support M.M. in her sobriety. B.H.M. said that although they were divorced, the family remained cohesive, generally staying together either at M.M.'s or at his home. He testified it was necessary for him to stay close by because of M.M.'s drinking cycles—if he was not there, he would have feared for the girls' safety.

In December 2008, the Department received a report of abuse and neglect in the M.M. household. An investigator for the Department, Jerusha Lee Jennings, went to the home to investigate. Jennings testified it was not safe to leave the girls with M.M., and she, along with M.M., agreed to a safety plan, which required the girls to live with B.H.M. M.M. did not mention J.P.K., telling Jennings C.E.M.-K. was conceived through artificial insemination. B.H.M. also failed to mention J.P.K., though he knew of him, claiming he was never asked about C.E.M.-K.'s father. Jennings stated she determined B.H.M.'s home was safe and C.E.M.-K. was comfortable staying with B.H.M. Accordingly, the girls moved into B.H.M.'s home on December 9, 2008. According to the evidence, the girls remained with B.H.M. until the Department closed the case and returned the girls to M.M. in early April 2009, after M.M. had completed the Department requirements. Until the girls returned to M.M.'s home, B.H.M. stated he was fully responsible for their care and well-being.

As a result of the investigation, the Department found “reason to believe” both M.M. and B.H.M. had engaged in negligent supervision and physical neglect of both C.E.M.-K. and her half-sister. “Reason to believe” is defined by the Department to mean “a preponderance of the evidence supports that the alleged abuse or neglect did occur.” However, Jennings testified the findings as to B.H.M. were technical, based on the fact that given the first abuse report in the spring of 2008, he had been required to report to the Department if M.M. began to drink again. His failure to report M.M.'s drinking was cause for the “reason to believe” findings. Jennings asserted this finding was a technical requirement, and she believed B.H.M. when he told her he did not call because he believed that if M.M. found out he called, she would deny him access to the girls, putting them in more danger.

The girls went back to M.M.'s home in early April 2009. After the girls were returned to...