In re K.R.P., 01-01-01108-CV.

• Court: Court of Appeals of Texas
• Citation: 80 S.W.3d 669
• Docket Number: No. 01-01-01108-CV.,01-01-01108-CV.
• Parties: In the Interest of K.R.P., a Child.
• Decision Date: 13 June 2002

80 S.W.3d 669 In the Interest of K.R.P., a Child. No. 01-01-01108-CV. Court of Appeals of Texas, Houston (First District). June 13, 2002. Rehearing Overruled August 8, 2002.

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COPYRIGHT MATERIAL OMITTED

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James R. Chapman, Spring, Randall B. White, Looper, Reed & McGraw, Houston, for Appellant.

Richard Lee Daniels, Bellaire, John Van Ness, Piro & Lilly, L.L.P., Houston, for Appellee.

Panel consists of Justices JENNINGS, RADACK, and DUGGAN.^*

OPINION

TERRY JENNINGS, Justice.

This is an appeal from the trial court's order concerning the conservatorship of a minor child, K.R.P. Following a bench trial, the trial court appointed Keridi Cameron (petitioner below) sole managing conservator of the child. The trial court appointed the child's biological parents, Kelly Pullin (father) and Cindy Long (mother) (respondents below), possessory conservators of the child, and they appeal the trial court's order.

The parents present three issues, contending: (1) the trial court abused its discretion in appointing Cameron sole managing conservator because there was no evidence to support a finding that Long was either "unfit" or would "significantly impair the child's physical health or emotional development"; (2) the trial court's

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conclusions that both Long and Pullin were "unfit" or would "significantly impair the child's physical health or emotional development" were against the great weight and preponderance of the evidence; and (3) the trial court erred in applying a standard of parental "fitness" rather than determining whether the appointment of either or both parents would "significantly impair the child's physical health or emotional development."

We affirm.

Facts and Procedural Background

On July 22, 1993, K.R.P. was born to Pullin and Long, who were never married to each other. At the time of the child's birth, Pullin and Long lived with Pullin's grandmother, Octavia Seitzler. During the first year of the child's life, Pullin and Long moved into their own apartment, but then returned to live with Seitzler. In February 1996, Pullin and Long separated, and Pullin and the child moved into a house with Cameron.

In September 1996, Pullin began serving a four-year criminal sentence in prison after pleading guilty to felony theft of a boat worth more than $20,000, but less than $100,000, and pleading true to an enhancement paragraph alleging a prior felony conviction for unauthorized use of a motor vehicle. At the time Pullin began his sentence, the child was residing with Cameron, although Seitzler provided help in caring for and transporting the child during part of the week. On December 31, 1997, Pullin and Cameron were married by proxy while Pullin was still incarcerated.

On December 20, 1999, Pullin was released from prison and resumed living with Cameron and the child. Less than one month later, on or about January 14, 2000, Pullin and Cameron separated, and Pullin temporarily took the child with him to live with Seitzler. On March 12, 2000, Pullin returned the child to live with Cameron full time. Pullin and Cameron did not resume cohabitation. The child has continued to lived there without interruption.

On April 7, 2000, Cameron, pursuant to section 102.003(9) of the Texas Family Code, filed suit to obtain temporary managing conservatorship of the child.¹ At a hearing before the trial court to determine temporary conservatorship of the child, Long, the biological mother, testified that it would be in the best interest of the child to live with Cameron. Following the hearing, the trial court appointed Cameron and Long joint temporary managing conservators of the child, and gave Cameron the right to determine the child's primary residence. Pullin was appointed temporary possessory conservator of the child and was given periods of visitation.

The case proceeded to a five-day bench trial beginning January 17, 2001. Before trial, and in response to Cameron's petition, Pullin filed a motion seeking custody of the child² and Long filed a general denial. Both sought to defeat Cameron's request for permanent managing conservatorship. On August 2, 2001, the trial court signed its final order appointing Cameron the sole managing conservator and Pullin and Long parent possessory conservators of the child.³ The trial court awarded

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periods of possession to Pullin and Long and ordered them both to pay child support to Cameron for the child. The trial court also signed findings of fact and conclusions of law.⁴ Among its findings of fact, the trial court found, in part, as follows:

5. [Cameron], at the time of the filing of this suit, was a person, other than a foster parent, who had actual care, control and possession of [the child] for at least six months ending not more than 90 days preceding the date of the filing of the petition.

6. It is in the best interest of [the child] that [Cameron] be appointed the sole managing conservator....

7. It is in the best interest of [the child] that [Long] be appointed a possessory conservator....

8. It is in the best interest of [the child] that [Pullin] be appointed a possessory conservator....

. . . .

11. The Court further finds based on the testimony and evidence presented that [Long] and [Pullin] are unfit parents of the child, [], and it is in the best interest of the child, [], that [Cameron] be appointed sole managing conservator of the child, [].

Among its conclusions of law, the trial court also determined "[Long] and [Pullin] are unfit parents for [the child]." Pullin and Long subsequently filed notices of appeal.

Standard of Review

In an appeal of a judgment rendered after a trial to the court, the court's findings of fact have the same weight as a jury's verdict. Amador v. Berrospe, 961 S.W.2d 205, 207 (Tex.App. — Houston [1st Dist.] 1996, writ denied). If findings of fact are not challenged, they are binding on the parties and on this Court. Cushnie v. State Bar of Texas, 845 S.W.2d 358, 360 (Tex.App. — Houston [1st Dist.] 1992, writ denied). When challenged, findings of fact are not conclusive if, as in the present case, there is a complete reporter's record. Amador, 961 S.W.2d at 207. When there is a reporter's record, the trial court's findings of fact are binding only if supported by the evidence. Id. If the findings are challenged, the court of appeals will review the sufficiency of the evidence supporting the findings. State Bar of Texas v. Roberts, 723 S.W.2d 233, 235 (Tex.App. — Houston [1st Dist.] 1986, no writ). In reviewing a no-evidence point, we consider only the evidence and inferences that tend to support the finding, disregarding all evidence and inferences to the contrary. Vannerson v. Vannerson, 857 S.W.2d 659, 666 (Tex.App. — Houston [1st Dist.] 1993, writ denied). If there is any evidence of probative force to support the finding, i.e., more than a mere scintilla, we will overrule the point. Id. An omitted unrequested finding, supported by the evidence, may be supplied by a presumption that it supports the judgment. TEX.R. CIV. P. 299; Black v. Dallas County Child Welfare Unit, 835 S.W.2d 626, 630 n. 10 (Tex.1992). In custody cases, factual sufficiency is not a separate ground of error on appeal; however, we may review the sufficiency of the evidence supporting a trial court's findings to determine if the court abused its discretion in making such findings. In re R.D.Y., 51 S.W.3d 314, 317 (Tex.App. — Houston [1st Dist.] 2001, no pet.). We

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apply these standards in reviewing the sufficiency of the evidence to support the trial court's findings of fact in this case.

A trial court's conclusions of law are not binding on this Court and will be reviewed de novo. Connelly v. Paul, 731 S.W.2d 657, 661 (Tex.App. — Houston [1st Dist.] 1987, writ ref'd n.r.e.).

The Parental Presumption

The presumption that the best interest of the child is served by awarding custody to a natural parent is deeply embedded in Texas law. In re V.L.K, 24 S.W.3d 338, 341 (Tex.2000); see Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990); Legate v. Legate, 87 Tex. 248, 28 S.W. 281, 282 (1894). This parental presumption is based upon the natural affection usually flowing between parent and child. V.L.K., 24 S.W.3d at 341. The Legislature has codified this presumption in Chapter 153 of the Family Code, which governs original custody determinations:

[U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators...