W.G.W., In re

• Decision Date: 27 June 1991
• Docket Number: No. 01-90-00172-CV,01-90-00172-CV
• Citation: 812 S.W.2d 409
• Parties: In re W.G.W., a Child. (1st Dist.)
• Court: Texas Court of Appeals

Page 409

812 S.W.2d 409

In re W.G.W., a Child.

No. 01-90-00172-CV.

Court of Appeals of Texas,

Houston (1st Dist.).

June 27, 1991.

Rehearing Overruled July 18, 1991.

Lorie Ann Jones, Galveston, for appellant.

R.A. Apffel, Galveston, for the State.

Thomas W. McQuage, Galveston, for appellee.

Before MIRABAL, PRICE and O'CONNOR, JJ.

OPINION

O'CONNOR, Justice.

This pro se appeal involves the standard the court must apply when a non-parent asks to be appointed managing conservator of a minor child. Following the jury findings, the trial court appointed P.W., a non-parent, as managing conservator of W.G.W. The mother, L.A.J., who was represented at trial by an attorney, brings this appeal pro se, asserting four points of error. On our own motion we identify the parties by fictitious names. TEX.FAM.CODE ANN. § 11.19(d) (Vernon 1986). ¹ We reverse and remand for a new trial.

L.A.J. ("the Mother") and P.W. ("Patrick") were married for one year and had a daughter, Wendy. The marriage ended in 1981, and Patrick was appointed the sole managing conservator of Wendy. Patrick got custody of their daughter by default judgment, because the Mother could not afford a lawyer. The Mother moved out after the divorce, but two years later, when she became pregnant with W.G.W., the child in this suit, she moved back with Patrick. Patrick is not the biological father of W.G.W.; everyone admits that another man, not involved in this litigation, is the biological father. W.G.W. bears the same last name as Patrick because, at the time of his birth, the Mother was still using Patrick's last name.

The Mother lived with Patrick, their daughter Wendy, and W.G.W. until W.G.W. was six months old. During that period there was conflict between the Mother and Patrick: the Mother claims Patrick was often intoxicated and violent; Patrick claims the Mother had male visitors while W.G.W. was present.

The Mother moved out of Patrick's house, and in 1986 moved to Waco, where she lived with O.W. Holmes, Jr., ² and W.G.W. In 1988, while in Waco, the Mother was diagnosed with cervical cancer. She came to Houston for a second opinion and for an operation, and left W.G.W. with Patrick. During the Mother's recuperation from the operation, Patrick decided to file for conservatorship of W.G.W.

At the time of trial, the Mother had lived continuously with Holmes since 1988, and they planned to marry. The Mother testified that, during those years, W.G.W. spent more time with Holmes than with Patrick. When asked why she permitted Patrick to have access to W.G.W. even though he was not W.G.W.'s father, the Mother said that she wanted W.G.W. to have a relationship with a male figure, and she wanted him to see his sister, Wendy, who lived with Patrick.

Holmes testified to the love and affection surrounding W.G.W. He stated that W.G.W. enjoyed a stable routine and was a disciplined child when in the care of the Mother. A personal friend of the Mother stated that the Mother was the primary caretaker throughout W.G.W.'s life and alleged that Patrick was once in an intoxicated state while W.G.W. was in his care. Holmes' father stated that W.G.W. enjoyed a close loving relationship with the Mother and his son. Holmes' sister testified that the Mother was a caring mother and provided W.G.W. a disciplined and structured home environment. The Mother's mother testified that she enjoyed a close relationship with W.G.W.

Patrick elicited testimony that the Mother changed residences a number of times after W.G.W. was born. ³ Patrick also complained that the Mother had two steady male companions after she left him. ⁴ Patrick testified that the Mother did not provide a stable environment for W.G.W. and considers himself the "father" since birth. Patrick claimed that the Mother attacked him with a knife in front of W.G.W., when he was a few months old.

Patrick's next door neighbors testified that while the Mother was living with Patrick shortly after the birth of W.G.W., the Mother had male visitors at the house during the day when Patrick was at work. ⁵ The neighbors also said that the Mother went out at night, leaving W.G.W. in Patrick's care. ⁶ The neighbors also stated that Patrick had more physical contact with W.G.W. than the Mother and that W.G.W. calls Patrick "Daddy," and felt that it would be in W.G.W.'s "best interest to be with" Patrick. They testified to various arguments between the Mother and Patrick, detailing one incident in which the Mother brandished a fireplace poker and threatened Patrick.

Ms. McCullough, a woman who operates a licensed day care center, which W.G.W. attended between the ages of three and five and a half, testified for Patrick. McCullough recited that she was a licensed day care director, had taken about 146 hours of college courses in psychology and early childhood development, had six years experience in day care operation, 10 years experience as a substitute school teacher, and two years experience as a teacher's aide for emotionally disturbed children. She stated that, from her education and experience, she could determine what was normal emotional and psychological development for children between the ages of four to six.

McCullough testified that, when she first met W.G.W., he had a discipline problem. She said that W.G.W. was emotionally and academically behind his peers at age three. She did not think W.G.W. had the ability to interact with his peers; that he was unduly angry, and did not participate in group activities. She thought W.G.W. improved emotionally while under Patrick's care, and regressed when under the Mother's care. She found that the Mother was uncooperative with the suggestions McCullough provided for improving W.G.W.'s psychological and emotional development. She thought the Mother had a "bad attitude" toward these matters and regarded W.G.W.'s behavioral problems as a "joke." McCullough noticed that W.G.W. was torn emotionally between the structured and supportive environment provided by Patrick, as contrasted with the erratic or unstructured environment provided by the Mother.

Patrick sought appointment as W.G.W.'s sole managing conservator. Under TEX.FAM.CODE ANN. § 11.03(a)(8) (Vernon Supp.1991) and TEX.FAM.CODE ANN. § 11.13(a) (Vernon 1986), the fact issues of Patrick's standing to bring the suit and the statutory elements required for his appointment were tried to a jury. The proceeding was governed by TEX.FAM.CODE ANN. § 14.01(b) (Vernon Supp.1991), which provides:

(b) A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:

(1) 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....

The jury was asked in two questions:

2. Do you find from a preponderance of the evidence that the appointment of [the Mother] as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child's health or emotional development?

Answer: "We do" or "We do not"

ANSWER: WE DO

3. Do you find from a preponderance of the evidence that the appointment of [Patrick] as managing conservator would be in the best interest of the child? ....

Answer: "We do" or "We do not"

ANSWER: WE DO

I. Challenges to the sufficiency of the evidence

The right to raise one's children has been deemed an "essential right," and a "basic civil right of man" and woman. Stanley v. Illinois, 405 U.S. 645, 651, 92 S.Ct. 1208, 1212-13, 31 L.Ed.2d 551 (1972); Prokopuk v. Offenhauser, 801 S.W.2d 538, 539 (Tex.App.--Houston [1st Dist.] 1990, writ denied). The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990). The natural right between parent and the child is one of constitutional dimensions and should not be disturbed except for the most compelling and serious reasons. Cooper v. Texas Dep't of Human Resources, 691 S.W.2d 807, 808 (Tex.App.--Austin 1985, writ dism'd). The law presumes that the interest of young children are best served by naming their natural parents as managing conservator. Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex.1963).

The party seeking to bar the natural parent from appointment as managing conservatorship has the burden to show that the best interest of the child would be best served by the appointment of a non-parent. Herrera v. Herrera, 409 S.W.2d 395, 396 (Tex.1966). To restate the standard in terms of § 14.01(b) of the Code, the party seeking to bar the natural parent from appointment as managing conservator must prove that the appointment of the parent would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development. Lewelling, 796 S.W.2d at 166; TEX.FAM.CODE ANN. § 14.01(b)(1). That another person would be a better custodian of a child is not enough to rebut the parental presumption absent the impairment of physical health or emotional development. Lewelling, 796 S.W.2d at 167.

Patrick bore the burden of proof on the jury's findings. The supreme court requires Patrick, as a non-parent, to identify some act or omission committed by the Mother which demonstrates that naming her as managing conservator will significantly impair W.G.W.'s physical health or emotional development. Lewelling, 796 S.W.2d at 168.

A. Legal sufficiency

In point of error one, the Mother urges there was no evidence to support the jury's finding to question two, that appointing her as managing conservator would significantly impair the child's physical health or emotional development. When reviewing a legal sufficiency or "no evidence" point, we must consider only the evidence and inferences, when viewed in their most favorable light,...