in the Interest of K.J.L., III and C.A.L. ( 2004 )

                                                             11th Court of Appeals

                                                                  Eastland, Texas

                                                             Memorandum Opinion

In the Interest of K.J.L., III and C.A.L.

No. 11-03-00091-CV B Appeal from Nolan County

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Victoria M. (Alvarado) Lee (Vickie) appeals from the trial court=s modification order that removed her and her former husband, Kenneth Jack Lee, Jr. (Jackie) as joint managing conservators of one of their children and designated her as possessory conservator and Jackie as sole managing conservator of that child. The order also established that Jackie was the father of another child, born after the parties= divorce, and designated Vickie as the possessory conservator of that child and Jackie as the child=s sole managing conservator.  Vickie contends in four issues that (1) Aeducational neglect@ in itself is not a legally sufficient basis upon which to modify or establish conservatorship; (2) the evidence presented was not factually sufficient to support a finding of Aeducational neglect,@ and the modification of conservatorship was therefore an abuse of discretion by the trial court; (3) the trial court erred by failing to investigate charges of domestic violence against Jackie; and (4) the trial court erred by admitting substantial evidence of religious belief, contrary to the U.S. and Texas Constitutions.  We affirm.

Vickie insists in Issue Nos. 1 and 2 that Aeducational neglect@ in itself is not a legally sufficient basis upon which to modify or establish conservatorship and that the evidence presented was not factually sufficient to support a finding of Aeducational neglect@ so that the modification of conservatorship was an abuse of discretion by the trial court.  These two issues as presented by Vickie are based upon the unstated assumption that the trial court made its determinations as to conservatorship based solely or in part upon the basis of Aeducational neglect.@  With respect to one child, the court found only that there had been a material and substantial change of circumstances as to that child since the rendition of its prior order and that the modification of the order was in the best interest of the child.  With respect to the child for whom paternity was established in the order, the court found that Vickie did not choose to encourage or accept a positive relationship between the child and Jackie and that it was in the best interest of both children for Jackie to be designated managing conservator.  Although the trial court varied standard visitation terms regarding Vickie returning the children to school at the end of her period of possession, finding that she had established a pattern of conduct that neglected the educational welfare of the children, the court made no finding that indicated its findings regarding conservatorship were based on the issue of Aeducational neglect,@ either by itself or in connection with other issues.

While Vickie does not assert specifically in any issue that the trial court abused its discretion in its findings because the evidence is legally or factually insufficient to support the trial court=s findings regarding the best interest of the children, she appears to raise this issue in her argument.  We will therefore consider whether the trial court abused its discretion because the evidence is legally and factually insufficient to support the trial court=s findings.  When reviewing a no-evidence point, we must view the evidence in a light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary.  Lenz v. Lenz, 79 S.W.3d 10, 13 (Tex.2002).  A court may modify the terms and conditions of a joint managing conservatorship if the modification would be in the best interest of the child and if the circumstances of the child or one or both of the conservators have materially and substantially changed since the rendition of the order.  TEX. FAM. CODE ANN. ' 156.101(1) (Vernon Supp. 2004-2005).  

With respect to our review of the trial court=s establishment of Jackie as father and managing conservator of the child not mentioned in the parties= divorce decree, we note that the trial court is given wide latitude in determining the best interest of the child when appointing a parent as a managing conservator. The judgment of the trial court will be reversed only when it appears from the record as a whole that the court has abused its discretion.  Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982). 

An assertion that the evidence is Ainsufficient@ to support a fact finding means that the evidence supporting the finding is so weak or the evidence to the contrary is so overwhelming that the finding should be set aside and a new trial ordered.  Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965).  We are required to consider all of the evidence in making this determination.  Maritime Overseas Corporation v. Ellis, 971 S.W.2d 402, 406-07 (Tex.1998).

Jackie and Vickie were divorced in 1994, and both were named joint managing conservators of one child.  Robert Leslie Clark, a police officer for the City of Sweetwater, testified that he was dispatched to Jackie=s residence in December 2000.  He said that Vickie=s SUV was in the driveway, that she had the child with her, that it was Jackie=s weekend to have the child, but that Vickie had some reservations about it. Officer Clark could not remember what the reservations were, which in his mind signified that he felt the child would not be in any kind of life-threatening situation, emotional trauma, or distress if left with the father.  He did say that the child was crying and that he believed Vickie said that the child did not want to stay.  He said that Vickie released the child to Jackie after consultation with her brother and father, whom he had called to the scene.  Officer Clark testified concerning another call regarding transfer of possession but could remember few details.  With respect to the first incident, Vickie testified that the younger child called her house while visiting with Jackie during his time of possession.  She said that, after several calls, Jackie allowed her to come over.  She indicated that, when Jackie opened the door, the child ran out of the house, jumped on her, and was crying saying she wanted to go home.  Vickie testified that she said:  AWhy do you want her here like this? Why? Why don=t you do what is best for her?@  She said that, when Jackie said:  AWell, Vickie, I=m just tired of this@ and threw up his hands, she went to get in her car to take the child home, but Jackie removed the keys.     

The children of Jackie and Vickie, at the time of the hearing, were ages twelve and six, while another child of hers, but not Jackie=s child, was a baby at the time of trial.  Vickie acknowledged that she and all three children begin the night in the same bed but that she usually awoke and went to the couch after putting them to bed.  She said she wished the children would sleep in their own beds.  She stated that this started with Jackie having the older child sleep in his bed, although she acknowledged that the younger child had slept with her since her birth.

Vickie acknowledged that absence from school and tardiness at school had been a problem with both children.  She said her daughter was not a morning person.  She stated that she did not make the children go to school when they were nauseated or, as to their younger child, if she did not get enough sleep. She explained that the older child had a lot of allergies and caught strep easily.  She also indicated that he had severe sinus problems and had an eye problem that had recently been discovered.  She acknowledged that she had not taken the children to a doctor every time they missed school because of illness but said that she would usually get a doctor=s excuse.  She later admitted that she had some responsibility for the children=s tardiness and absence from school.  She denied keeping the older child from attending Boy Scouts.  She also acknowledged taking her older child=s lunch to school every day. 

Vickie testified that, while they were married, Jackie called her by obscene and racist nick-names and that he used to beat her.  She said he would slap her, pull her hair, punch her in the stomach, drag her across the floor, throw her outside, and tell her she would never see their son again.  She indicated that it was in the children=s best interest to live with her. 

Vickie denied ever telling Jackie that she would bring the younger child by and then not show up.  When asked if she had ever prevented Jackie from having the child overnight, she replied: AI can=t prevent him, no, I can=t.@ 

Scarlett Gale Whitteker, the principal of East Ridge Elementary School in Sweetwater, testified that she and her husband were personal friends of Jackie and that both children had attended East Ridge. She testified that the older child was not living up to his potential and that he could probably make straight As.  She said she was concerned about his numerous absences and tardies. She said that the younger child had been absent 6 of 39 days and had been tardy for 9 days.  As for the older child, she testified that he had 31 absences in kindergarten, 24 or 25 in first grade, 26 in second grade, and 19 in third grade.  She said he had 31 tardies in first grade, 16 in second grade, and 26 in third grade.  She testified that that indicated a problem from a parenting standpoint with getting a child to school and attempting to do what is best for that child in the educational process.  She stated that she believed that kind of attendance is detrimental to a child=s development.  She said that the state guidelines on absences are not more than 17. She said that there were several days when the younger child was taken out of school between 10:00 and 11:00 a.m. for the rest of the day.  She stated that she had never observed Jackie being irresponsible toward his obligations as a parent.   

Whitteker acknowledged that most or all of the absences were excused because there was a note either from the parent or a doctor.  She also noted that the older child was doing well in school and was in the gifted and talented program at school.  She said that, while the older child was at her school, she was not aware of any significant physical thing that would have been detrimental to his achievement.  Tamra Lee Burt, an attendance clerk at East Ridge, identified the excuse notes for the younger child. 

Gay Storch, the preschool teacher and director of Saint Stephens Episcopal School, testified that the younger child had 16 absences during the 46 school days she was at the school prior to her withdrawal by Vickie. She said she understood from the teacher that, when the child was absent, the child did not bring back her makeup work.  She acknowledged that Vickie told her that several of the absences were from the child having strep throat and tonsillitis. 

She said that she had observed Jackie with the child, that he seemed to have a good relationship with her, and that there was nothing about his relationship with her that gave her any concern. 

Dr. Judy Peckett Clayton testified that she had seen the younger child 3 times in the previous 90 days and that on those occasions she had given the child antibiotic, suppositories for vomiting, and cough syrup.  She said that, several times when the children were brought in because they were sick, she did not see anything wrong. 

Kathy McCombs Smart, the principal of the older child=s intermediate school, testified that absences can impact the educational development of the child and that success in school is directly related to attendance.  She related that Vickie brings lunch to the child every day and that she is the only parent to do so.  She said that the child is a B student, but she agrees that he is bright enough to be a straight A student.   She acknowledged that the child has a problem with his eyes not working together to read the printed word.  She said she had no doubt that Vickie is a caring mother and that Jackie is a caring father.

Barbara Villanueva, the attendance clerk at the older child=s intermediate school, testified that the school bell rings at 8:00 a.m. and that the tardy bell rings at 8:10 a.m.  She said that the child was absent 22 times and tardy 19 times in the fourth grade and that, on 7 of the occasions on which he was tardy, he did not arrive until after 9:50 a.m.  She indicated that at 10:00 a.m. a child is counted absent. She stated that the child had 9 absences and 14 tardies from the beginning of school until December 12, 2002.  She said this was not a normal attendance record for a student at the school.  She also noted that the child had 22 early releases in fourth grade and 16 early releases already in fifth grade.  She acknowledged that he had returned to school after being released early 7 times in fourth grade and had returned to school after being released early 6 times in fifth grade.  She noted that she had several times observed the child calling Vickie when he was sick at school and that she did not believe that he was faking. She admitted that, if the child had been hers, she would have picked him up and taken him home.  She said she had observed Vickie with her child, and she thinks Vickie is a good mother.  She said she had never seen her do anything other than act in the best interest of her children in regards to the early checkouts.

Karyn Carpenter Green, a family friend, testified that she had observed the older child in choir and other church activities and that it appeared that Jackie brought him and his sister.  She said that he appeared to be a devoted father and that, as a mother, she would not have had any concerns if the children were told to live with Jackie on a permanent basis. 

Cindy Lee, Jackie=s sister, testified that she is a principal at an elementary school.  She said that Vickie was frequently two or three hours late in bringing or picking up the children -- that it kind of fit her mood.  She stated that school attendance is vital to a child=s educational and emotional development. She indicated that the school attendance of her niece and nephew are unacceptable and that in San Angelo she would have to file truancy charges in such cases.  She insisted that it is unusual for a child to arrive at nearly 10:00 a.m.  She gave her opinion that the children=s attendance records indicate a parent for whom education is not a priority. She said  Jackie had coached the older child in basketball, baseball, and soccer.  She insisted that, if her brother were to be given custody of the younger child, she would have no concerns about her emotional well-being.  She stated that she felt the children would be better off with her brother.

Jackie testified that he is a graduate of Texas Tech University and that he operates I-20, Incorporated, a truck service business.  He stated that Vickie would not let him see the children at their regular times.  He indicated that he did not get to see the younger child much during her first three or four years.  He said that he did not do anything about it so that it would not affect the older child. He said that he had never seen the children outside Vickie=s house and that they were usually at her bail bond office.  He said that the older child was seldom sick when he was with him.  He acknowledged that he, too, starts out sleeping with the children and getting up later to sleep separately.  He said that he was going to work on that.  He promised that, if the children were with him, he would see to it that they are at school. 

Janet Kay Brooks testified that she is a Bridges specialist at the intermediate school and that this is a program designed to help kids with motor skills and visual skills to make them more efficient in the classroom.  She said she tested the older child and found there were some motor skill problems and some slight visual problems that needed to be addressed. She indicated that the child had balance problems and was not walking forward and backward on a one-by-four board. She said that, visually, the child=s eyes came together, but not at the same time. She stated that, when she observed the child in class, he was up moving around, not focused on what he was supposed to be doing.  She said that she did not think her testing would explain an average of 25 absences a year, twenty-something tardies, and twenty-something average days per year being taken out of school early.

Patricia Sue King, a friend of Vickie, testified that she knows both Vickie and Jackie. She said that Vickie was always taking care of the children and always doing what she needs to do for them.  She said that, in her opinion, it would be in the best interest of the children to live with Vickie because she is a good mother and very interested in taking care of the children.  She said that Jackie always wanted to be in control of everything with Vickie and the children.  She said she based this opinion on her observation and the way he behaves when he is with them, but she could not put it into words or give specific examples.  She stated she just felt he was manipulative.  She said that, when she would speak to the older child at church, he would act like he was afraid to say anything, but that he was not like that when he was with Vickie.  She indicated that she was not aware of the children=s record of absences, of tardies, and of being taken out of school early.  She admitted that, if someone cannot get their child to school, if they write excuses when the child is not sick, if they cannot get the child to school on time, and if they take them out to what equates to about 40 to 50 school days per year where they are not getting a full day, they would not be a good mother.

Sandra Pearcy, a counselor intern, also a friend of Vickie, stated that she knew both Vickie and Jackie.  She testified she had never known of Vickie having a problem with the children playing outside.  She stated that Vickie is a good mother who loves her children.  She indicated that, in her opinion as a mother and counselor, she could not imagine taking a child from its mother in the absence of the mother being violent or having drug or alcohol problems.  On cross-examination, she acknowledged that the law did not make such determinations based upon gender and that a counselor could not express such an opinion about conservatorship in the absence of interviewing both sides in the case.  She indicated that Vickie could be considered a good mother, despite all the school attendance problems, if the children were able to keep up with their work and they were sick.              Teresa Sanchez, a drug intake technician for adult probation, who is a friend of Vickie, stated that her children and Vickie=s children play together.  She indicated that there had never been any trouble with Vickie letting her kids play outside, but she acknowledged that the children had never gone to play at Vickie=s house.  Sanchez asserted that Vickie had never done anything that would give her concern about her abilities as a mother.  Sanchez acknowledged that she was really over- protective of her own children and that she saw Vickie the same way, then she testified that Vickie was not smothering or overprotective of the children.  With respect to the younger child being withdrawn from school, she said that, from her impression from talking with and observing the child, the child was afraid to go to school.  When confronted with the children=s school attendance records, she was unable to express an opinion as to whether that showed that Vickie was not a good mother, basically saying that it depended upon whether the children were sick.

Martha H. Frick, a friend and business associate of Vickie, stated that she was with her and the children about three to four days per week.  She characterized Vickie as very family oriented.  She expressed an opinion that Vickie is a good mother and that, if she had children, she would entrust them to her care.  When asked what a good mother is, she said:  AWell, one that cares and feeds and keeps them clean and gets them to school, gets them to all the functions they have to go to, gives them medical attention.@  She said that, in her opinion, it was okay that the children did not get to school on time and that they got checked out of school early about twenty-something times per year.  With respect to the children=s absences, she said that you have to take into consideration whether the child was sick.  She acknowledged that she would not allow her children to miss that much school for no reason.  When asked about the total attendance issue with respect to the children, she said that she could not give a Ayes@ or Ano@ answer as to whether that was indicative of a responsible mother. 

Joni Renee Ferguson, Vickie=s next-door neighbor, testified that she has seen Vickie=s children play outside and that Vickie does not have a problem with their doing so.  She said she would trust Vickie to take care of her child.  She stated that Vickie had never done anything that would cause her concern about her abilities as a mother.  She acknowledged that she had been called as a witness over the weekend and apprised of what she needed to deal with when she was testifying. 

Misty Sorrels, the neighbor=s sister, testified that she is an elementary education student at Hardin Simmons University.  She said that she had babysat in the past with Vickie=s children.  She indicated that she sat with them at Vickie=s shop and at Jackie=s house.  She said that, when Vickie fed the kids, she would feed them Aeverything from Sonic to casseroles to what normal people eat; anything that you would normally eat on a daily basis.@  She said that she had never eaten with Jackie and the kids but that, from being at his house, the kids would eat Lunchables, frozen pizza, and frozen hamburgers.  She said that, when she was out with Vickie, Jackie would often call and be yelling. When pressed for details, she said she could recall one instance about two months previously.  Subsequently, she recalled another instance two weeks before that.  She said she was not telling the court that Jackie did not have a good relationship with his children. 

In addition to hearing the testimony, the court apparently interviewed the older child, but there is no transcription of their conversation.  Considering all of the testimony in the record, we hold that the trial court did not abuse its discretion in modifying the joint managing conservatorship by naming Jackie managing conservator of the older child or in naming him as the managing conservator of the younger child.

Vickie argues that what she terms Aeducational neglect@ cannot be the basis for modification or establishment of conservatorship because there is no precedent for it and because it does not fit into any of the factors for consideration in determining the best interest of the child as set forth in Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).  Those factors include the following:  (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent that might indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent.  Id.  From the evidence presented, the trial court could reasonably have found that Vickie=s failure to have the children attend school as they should and her failure to follow the time guidelines for visitation reflected on Vickie=s parental abilities and indicated that the existing parent-child relationship was not a proper one.  Also, based upon the evidence, the trial court could have chosen not to believe the excuses offered by Vickie for the children=s frequent absence and tardiness from school. If we are in error in finding that the children=s absences and tardiness fall within the factors set forth in Holley, we note that the supreme court pointed out that the list of factors is not exhaustive.  Id. at 372.  We find that the trial court did not abuse its discretion in its findings supporting its designations of conservatorship.

Vickie argues that the trial court abused its discretion because educational neglect does not fall within the family code=s definition of Aneglect.@ The definition to which she refers relates only to the portion of the family code dealing with investigation of report of child abuse or neglect.  TEX. FAM. CODE ANN. ' 261.001(4) (Vernon 2002). The fact that Vickie=s actions might not fall within the realm of child abuse or neglect in that context does not mean that they might not constitute acts or omissions reflecting on her parental abilities or showing that the parent-child relationship is not a proper one.  She also refers us to Texas school attendance law regarding excused medical absences, but ignores testimony from which the trial court could have determined that the numerous absences and tardies were not medically justified.  She mentions the right of children to be homeschooled, but there is no evidence that she was homeschooling the children. Finally, she speaks of termination cases, even though this is not a termination case.  We overrule Issue Nos. 1 and 2.

Vickie asserts in Issue No. 3 that the trial court erred by failing to investigate charges of domestic violence against Jackie.  Her argument shows that she is contending that the trial court did not appropriately weigh her evidence of domestic violence that occurred during her marriage to Jackie or that the trial court did not consider such evidence in making its determination regarding conservatorship. Vickie=s arguments that the trial court did not appropriately weigh her evidence of domestic violence or did not consider such evidence is unsupported by the record and constitutes only speculation on her part.

Vickie relies upon the case of In the Interest of M.R., 975 S.W.2d 51 (Tex.App. - San Antonio 1998, pet=n den=d). We find that case to be distinguishable because, in that case, the record reflects that the trial court refused to hear the evidence regarding domestic violence.  Id. at 52.  In the case at bar, the trial court did hear the evidence.  We overrule Issue No. 3.

Vickie urges in Issue No. 4 that the trial court erred by admitting substantial evidence of religious belief and practice, contrary to the United States and Texas Constitutions and case law.  Vickie testified that she attended Holy Family Catholic Church; but, when asked when she took her children there, she said she did not, but prayed at home. She acknowledged that the children did not attend any church activities with her.  Jackie testified that he took the children to the First Baptist Church when he had them, on Sunday morning and Wednesday night, and that they were involved in activities there.  Because no objection was made to any of this testimony, nothing is presented for review. In re Marriage of Rutland, 729 S.W.2d 923, 931 (Tex.App. - Dallas 1987, writ ref=d n.r.e.).  Vickie relies upon the opinion in In the Matter of the Marriage of Knighton, 723 S.W.2d 274, 285 (Tex App. - Amarillo 1987, no writ), in urging that no objection was required to preserve this issue for appellate review because it constitutes fundamental error.  We find Knighton to be distinguishable.  In Knighton, a substantial amount of the testimony involved testimony concerning the appellant=s religious beliefs and practices, whereas in this case there was only a brief mention of the fact that Vickie was a Catholic who did not attend church while Jackie was a Baptist who attended church twice per week and involved the children in his church=s activities.  Id. at 277-78.  We believe that Rutland correctly sets out the rule with respect to preservation of error in a case such as the one at bar.  We overrule Issue No. 4.

Jackie requests that we impose sanctions against Vickie, in the form of his reasonable attorney=s fees, because the appeal is frivolous. Because we do not find this appeal to be frivolous, we deny Jackie=s request for sanctions.  

The order setting aside the joint managing conservatorship and establishing Kenneth Jack Lee, Jr. as sole managing conservator of the two children is affirmed.

PER CURIAM

September 23, 2004

Not designated for publication.  See TEX.R.APP.P. 47.2(a).

Panel consists of:  Arnot, C.J., and

McCall, J., and Hill, S.J.^[1]

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^[1]John G. Hill, Former Chief Justice, Court of Appeals, 2nd District of Texas at Fort Worth, sitting by assignment.