In The Interest Of X v. Child
| Decision Date | 12 August 2010 |
| Docket Number | NO. 2-09-227-CV,2-09-227-CV |
| Parties | IN THE INTEREST OF X. v. , A CHILD |
| Court | Texas Court of Appeals |
Appellant Mother appeals from an order appointing Aunt2 as managing conservator of Mother's son, X.V. In a single compound issue, Mother questions whether the trial court properly applied section 153.131 of the Texas Family Codewhen it appointed Aunt as managing conservator of X.V. and whether there was sufficient evidence to support the trial court's finding that naming Mother as managing conservator would significantly impair X.V.'s emotional or physical development. We will affirm.
Mother is the mother of X.V., who was eight years old at the time of trial. Twenty-eight months prior to trial, Mother voluntarily transferred possession of X.V. to Aunt so that Mother could enlist in the military. 3 Mother signed guardianship papers that she found on the internet and set the guardianship term from December 20, 2006 to December 20, 2008. Before a year had expired but after Mother had learned that she could not get into the Navy or the Army, Mother demanded that X.V. be returned to her. Aunt filed suit on December 5, 2007, because Mother wanted X.V. back, and Aunt thought that was not in X.V.'s best interest. Aunt also sought a restraining order because Mother "had a hi story of kidnapping her kids."
On April 29 and May 1, 2009, the trial court held a hearing to determine whether Mother or Aunt should be named X.V.'s managing conservator. The trial court heard testimony from Aunt, Mother, Uncle, and the Family Court Services worker who was appointed to perform the social study. A summary of theirtestimony follows.
Aunt testified that she was fifty-two years old at the time of the trial and lived in Tarrant County with her husband (Uncle) and X.V. Aunt was self-employed as an independent contractor who managed health fairs and mobile insurance exams. She testified that she had no criminal record, had never been investigated by CPS, and did not use illegal drugs. Aunt said that she was in Dimmitt visiting relatives when Mother signed a paper giving her guardianship of X.V. because she wanted to join the military. Mother's plan was that she would join the military in order to better her life, pick up a trade, and become stable.
When X.V. came to live with Aunt, he was hyperactive and restless and had difficulty sleeping through the night. Aunt also said that X.V. X.V. wanted to eat only Ramen noodles, did not have any sense of organization, and liked to watch horror and combat movies. X.V. at age five knew about alcohol, sexual activity, and how drugs were used. Aunt was concerned about X.V.'s social skills because they were rough and about his sexual knowledge.
Mother did not come to Tarrant County to visit X.V. from December 2006 to June 2007, and her first phone call occurred during the second month that Aunt cared for X.V. During the next six-month period from June to December 2007, the number of Mother's calls increased, but she did not come to Tarrant County to visit X.V. Aunt, however, made trips to Dimmitt and always allowed Mother to see X.V.
During the six-month period from December 2007 to June 2008, Mother continued to call.
After that, in August 2008, Mother requested that the trial court allow her to speak to X.V., which Aunt said was already allowed, and Mother began calling Aunt's cell and home phones ten to twelve times a day. The trial court also allowed Mother to have supervised visits, but Mother did not visit with X.V. from August through December 2008. Mother's first supervised visit since Aunt filed her petition occurred in March 2009. After Mother started her visits, her phone calls were not as frequent.
Aunt said that Mother and X.V. lived with her for approximately seven months when X.V. was an infant and that Mother's employment history when she lived with Aunt ranged from about two to four months. Aunt said that Mother needs to hold a stable job because it would teach her responsibility and "probably" curtail her desire to party.
Mother was ordered to pay child support in August 2008, but Aunt testified that she had received only one payment for $187. Aunt believes that based on the fact that Mother has not paid child support, she may not be financially able to care for X.V. Additionally, Aunt said that X.V. is expensive because he eats four meals a day and participates in karate and soccer.
Aunt testified that X.V. had seen fights between Mother and Michael A., who was the father of his step-sister M. While X.V. was living with Aunt, he was fearful for M. and felt guilty for not being around to protect her. Aunt also testified that after Mother separated from Michael, Mother and Michael kept kidnapping M. from each other. Aunt said that it was not good for X.V. to continue to be around Michael even though X.V. considered Michael to be his father.5
During the six years prior to trial, Mother and X.V. had lived with fourdifferent men. Aunt testified that Mother's relationships were not in X.V.'s best interest and that they significantly impaired his emotional health, safety, and welfare because of the backgrounds of the men that Mother had dated or lived with. However, Aunt admitted that since she had filed suit in December 2007, she had not had the opportunity to observe Mother's habits or dating other than when Aunt had visited Mother.
Aunt testified that Mother had moved at least a dozen times over X.V.'s life. Aunt was concerned about the fact that Mother moves often, that she drinks, and that there was always beer around. Although Aunt had not seen Mother drunk, Aunt thought that she had seen Mother high on marijuana.
Aunt said that during the month prior to trial, X.V. was more relaxed and felt more assured that he was not going anywhere and that, in turn, his attitude turned around. Aunt said that X.V. received mostly green marks (good) for his conduct at school and that his ADHD-like symptoms no longer exist.
Aunt described X.V. at the time of trial as a brilliant child who was very loving. X.V. had been absent only two or three days per school year since he had been living with Aunt. X.V. was doing "exceptionally well" in school and had participated in karate, soccer, and swimming.
Aunt said that X.V. loves Mother, M., Aunt, and Uncle. Aunt said that X.V.'s behavior was more regulated at her house but that he was prone to setbacks and that emotional upsets caused him setbacks in school, at home, and with his friends. Aunt said that X.V.'s dietary habits had grown and that he was eating vegetables at almost every meal and was willing to try new foods. Aunt said that X.V. knows that there are rules in place at her house and does his best to follow them. Aunt said that X.V. receives discipline in her home and that he has a set routine. Aunt said that she would describe X.V. as "thriving" now because there is stability in his life. Aunt said that it is important to X.V. that he comes home to the same home; that someone is at home waiting for him; that he has his own room, and that he has his own things that are not lost, given away, or stolen.
Aunt's main complaints about Mother are her instability and her lack of parenting skills. Aunt admitted that her complaints now are the same ones that she had when Mother dropped off X.V., and Aunt was willing, at that time, for the guardianship to be temporary. Aunt also admitted that it was not part of the original guardianship agreement for Mother to have to prove certain skills in order for X.V. to be returned. Aunt said that she filed suit because she saw the positive changes that had occurred in X.V. and could not return him to Mother's unstable environment.
The trial court asked Aunt what her primary concern was about Mother's having unsupervised visits with X.V., and Aunt said that she was concerned that Mother would involve him "in her routine, in her lifestyle, and the people that she associates with." Aunt said that when X.V. knows that he is going to see Mother, he becomes distracted in school for about a week. She said that X.V. changes if he gets information that he might have to leave his solid life and return to Mother. He becomes unruly and talks back to his teacher, and it is distressing to him. When he feels the instability coming, he reverts and regresses. Aunt said that if Mother could keep X.V. with her and avoid exposing him to her friends and her lifestyle, that might be acceptable, but there was no guarantee that Mother was going to do that because she had not shown signs of changing.
Mother lived on a farm-to-market road outside Amarillo at the time of trial. She testified at trial regarding her relationships with various men.
Mother said that her relationship...
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