Rodriguez, In Interest of, 04-96-00280-CV

• Decision Date: 31 January 1997
• Docket Number: No. 04-96-00280-CV,04-96-00280-CV
• Parties: In the Interest of Baby Girl RODRIGUEZ, a Minor Child.
• Court: Texas Court of Appeals

Page 265

940 S.W.2d 265

In the Interest of Baby Girl RODRIGUEZ, a Minor Child.

No. 04-96-00280-CV.

Court of Appeals of Texas,

San Antonio.

Jan. 31, 1997.

Rehearing Overruled Feb. 26, 1997.

John R. Brumbelow, Tyler, for appellant.

Mark M. Ferguson, Kevin M. Warburton, Gardner & Ferguson, Inc., San Antonio, for appellee.

Before DUNCAN, ANGELINI and CARR ¹, JJ.

DUNCAN, Justice.

In this difficult case of first impression, Mark Humberson appeals the trial court's judgment awarding managing conservatorship of his child, Madison, to Matt and Mindy Walsh, Madison's caretakers since birth. While we agree with Mark and the trial judge that there is no evidence that any act or omission, behavior, or conduct by Mark will impair Madison, see Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex.1990), we agree

                with the trial judge that "Madison's case is unique and distinguishable from authorities cited by counsel."   We therefore hold that the Lewelling standard does not apply in this case, and the only standard that does apply is that mandated by the Texas Legislature in section 153.131(a) of the Texas Family Code:  whether the appointment of Mark as Madison's managing conservator is not in her best interest because it will significantly impair her physical health or emotional development.  When the legislative standard is employed, as it was in the trial court, the evidence is plainly sufficient to support the jury's implied finding of impairment.  We therefore affirm the trial court's judgment
                

FACTUAL AND PROCEDURAL BACKGROUND

On May 9, 1994, twenty-year-old Aracely "Sally" Rodriguez called Abrazo Adoption Services to learn about the adoption process. In response, Elizabeth Wanderwerf, Abrazo's executive director and the counselor who took Sally's call, sent Sally a packet of information. More phone calls followed, and Wanderwerf learned that Sally was concerned that her family would find out that she was, for a second time, single and pregnant. In June, Sally moved to San Antonio, where Abrazo was located, and began bi-weekly counseling with Wanderwerf. During the counseling process, Wanderwerf learned that Sally was sensitive to the difficulties of being a single parent since she was trying to fill that role with her daughter, Brittany, and, as a result, insisted upon an open adoption of her baby by a two-parent family. Sally also preferred an out-of-state couple. Sally ultimately chose Matt and Mindy Walsh of Charlotte, North Carolina to be her baby's adoptive parents. The Walshes accepted this privilege and responsibility enthusiastically and, throughout the summer, supported Sally emotionally and financially.

Also during that summer, Mark Humberson heard from Sally's niece that Sally was pregnant. Mark had dated Sally from approximately June or July 1993 until January 1994, when he was twenty-seven and she was twenty, but he had had virtually no contact with her after that point. As best Mark could recall, when he had last talked with Sally, she had told him she was moving to San Antonio to go to school. However, when Mark called to find out if Sally was pregnant by him, she denied it. At that time, and later in three affidavits of status, Sally named Juan F. Quintero as the father or probable father of her baby. On July 19, Quintero signed an affidavit of waiver of interest.

Sally's baby girl was born September 16, 1994. Matt and Mindy Walsh attended the birth and, together with Sally, named the baby Madison. On September 17, after Sally signed an affidavit relinquishing her parental rights and naming Abrazo as Madison's managing conservator and guardian ad litem, Madison was released to the Walshes, who returned to North Carolina. Sally returned to Tyler.

On September 23, Abrazo commenced this action by filing an original petition to terminate the parent-child relationship between Sally and Madison. The petition was supported by Sally's affidavit of relinquishment and affidavit of status, which again named Quintero as the baby's father or probable father, and Quintero's affidavit of waiver of interest. On September 30, the trial court entered a decree terminating the parent-child relationship between Madison and Sally and terminating any rights Quintero may have had.

In October, Sally told Mark that she had had a baby girl, he was the father, and she had placed the child in an open adoption. Thereafter, in an October 26 telephone conversation, Sally and Mark informed Abrazo that Mark was Madison's biological father. Based upon this information, Abrazo sent Sally another affidavit of status. By this time, Mark had hired an attorney, and it was in this attorney's office, on November 1, 1994, that Sally signed a fourth affidavit of status. This time Sally named Mark as Madison's father.

In a letter dated November 8, Mark's attorney notified Abrazo that Mark was "wishing to get his child." Abrazo referred him to its attorney. Sometime thereafter, in a telephone call and in a letter dated November 22, a different attorney notified Abrazo that he represented Mark and that Mark planned Upon learning that Sally had named Mark as Madison's father, the Walshes attempted to contact him. Mark did not, however, return the Walshes' telephone calls. According to Mark's mother, Cheryl Nix, Mark did not want to talk to the Walshes because he did not know what to say. On December 27, the Walshes intervened in this proceeding, also requesting blood testing--a request reiterated by Abrazo on December 30. Ultimately, in a report dated February 14, 1995, the University of North Texas Health Science Center at Fort Worth concluded that Mark was Madison's probable father by a factor of 99.98%.

to intervene in this proceeding to establish paternity. Abrazo again referred the attorney to its attorney. Finally, on December 9, Mark formally intervened in this proceeding, seeking to establish himself, through blood testing, as Madison's father and also to be named her managing conservator.

On June 5, after an evidentiary hearing, the trial court found that Mark was Madison's biological father, named him as her temporary possessory conservator, and ordered two visitations, a short one in North Carolina and a longer one in Texas. The trial court also ordered Mark to pay child support and to provide health insurance for Madison. At trial, Mark testified that, while he had paid the ordered child support, he had not provided the ordered health insurance.

The Walshes did not meet or speak with Mark until June 1995, when he and his mother arrived in Charlotte, North Carolina for their first visitation with Madison. Following this visit, Mrs. Nix bought and addressed several cards to send to Madison; Mark signed these cards, and his mother mailed them. Mrs. Nix also bought and sent presents to Madison, made out the child support checks for Mark's signature, and initiated telephone calls to the Walshes to inquire about Madison. The second, longer visitation occurred in August 1995 in Tyler, Texas. Although the June 5 order required Mark to travel with Madison from Charlotte to Tyler, he failed to appear in Charlotte on the designated date. Ultimately, Matt Walsh brought Madison to Texas for the court-ordered visitation.

On September 5, 1995, the case was tried to a jury, which heard not only the facts outlined above but also the testimony of the Walshes regarding the impact on Madison of the two court-ordered visitations; the testimony of the parties' experts regarding whether Madison's physical health or emotional development would be significantly impaired if Mark were named her managing conservator, see TEX. FAM.CODE ANN. § 153.131(a) (Vernon 1996); and the results of the social study performed on Mark and his family.

Matt, who had taken child psychology courses in college, testified that he believed that an interruption of the bonding that had taken place between Madison, his wife, and him would injure Madison. According to Mindy, for about two weeks after Madison returned from her first visit with Mark, she refused to go through their well-established nighttime ritual of first reading certain stories and then singing certain songs before Madison would get in her crib. Instead, so long as she was awake, nine-month-old Madison refused to get in her crib; she seemed afraid to go to sleep and would wake up in the middle of the night crying and screaming. When Mindy would pick her up, Madison would not let go. Within a month, Madison was back to normal and would not cry if the Walshes left the room. When Madison arrived home from the second visit, she again refused to go through their established bedtime ritual, instead avoiding sleep and crying if the Walshes left the room. To Mindy, it appeared that Madison had reverted and needed the comfort of a bottle to fall asleep. So Madison was given a bottle and permitted to sleep with the Walshes.

The first expert witness to testify on the impairment issue was Elizabeth Wanderwerf, a licensed professional counselor and Abrazo's executive director. According to Wanderwerf, naming Mark as Madison's managing conservator "would be devastating to [Madison]." She also related to the jury that some theorists liken such a separation "to dousing a child with oil and setting them on fire. That the wounds are incredibly painful Dr. Jack G. Ferrell, a clinical psychologist with twenty years of experience and a specialist in family matters, also testified. According to Dr. Ferrell, the first three years of a child's life are a critical period--the period in which a child learns to love and to trust, the period in which a child develops a sense of her own identity and self-esteem. Indeed, Dr. Ferrell testified, as a member of several Family Code revision committees, it is for this reason that the standard possession order does not apply to children under three years of age. See TEX. FAM.CODE ANN. §§ 153.251(d), 153.254 (Vernon 1996). According to Dr. Ferrell, there is a "very, very high...