in the Interest of A.E.D. ( 2014 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-13-00555-CV
____________________
IN THE INTEREST OF A.E.D.
__________________________________________________________________
On Appeal from the 279th District Court
Jefferson County, Texas
Trial Cause No. F-169,638-A
__________________________________________________________________
MEMORANDUM OPINION
In 1998, A.S., A.E.D.’s mother, filed a petition to establish that K.D. is the
biological father of A.E.D. The parties signed an agreed decree of paternity, which
adjudicated K.D. as a parent of A.E.D., appointed A.S. and K.D. as joint managing
conservators, gave A.S. the exclusive right to establish A.E.D.’s primary residence,
and ordered K.D. to pay child support. In 2011, the Texas Attorney General filed a
notice of change of status and motion for further orders, seeking modification of
the 1998 order. In September 2013, the trial court modified the order and granted
K.D. the exclusive right to designate A.E.D.’s primary residence, and ordered A.S.
to pay child support. In three appellate issues, A.S. challenges the trial court’s
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jurisdiction to modify the order, failure to timely prepare and file findings of fact
and conclusions of law, and modification of A.E.D.’s conservatorship. We affirm
the trial court’s order.
Jurisdiction
In issue one, A.S. argues that the trial court had no jurisdiction to modify the
1998 order. First, A.S. contends that the Attorney General lacked standing to seek
modification. We disagree. The State of Texas is a governmental entity with
independent standing to bring a suit affecting the parent-child relationship. See
Tex. Fam. Code Ann. § 102.003(a)(5) (West 2014); see also Attorney Gen. of Tex.
v. Lavan, 833 S.W.2d 952, 955 (Tex. 1992). Because a governmental entity has
standing under section 102.003(a)(5), the entity may also file a suit for
modification. See Tex. Fam. Code Ann. § 156.002(b) (West 2014).
Second, A.S. maintains that K.D. neither intervened in the suit nor filed
pleadings requesting relief, but was allowed to step into the Attorney General’s
shoes. The record indicates that the Attorney General requested service on K.D.,
over whom the trial court maintained continuing jurisdiction, and asked the trial
court to modify the 1998 order to include appropriate provisions for A.E.D.’s
conservatorship. K.D. executed an affidavit of possession in which he stated that
A.E.D. had resided with him since May 2009.
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In her answer and motion to dismiss, A.S. challenged the Attorney’s
General’s standing, but did not challenge K.D.’s right to relief. When K.D.
subsequently appeared before the trial court, A.S.’s counsel mentioned that the
Attorney General initiated the suit and stated, “I don’t know if there’s any other
pleading on file to support what we’re doing[,]” but did not object when the trial
court allowed K.D. to step in as the petitioner. Both A.S. and K.D. presented
evidence and arguments regarding conservatorship. Under these circumstances, we
conclude that the issue of A.E.D.’s conservatorship was tried by consent. 1 See Tex.
R. Civ. P. 67 (“When issues not raised by the pleadings are tried by express or
implied consent of the parties, they shall be treated in all respects as if they had
been raised in the pleadings.”); see also Case Corp. v. Hi-Class Bus. Sys. of Am.,
Inc., 184 S.W.3d 760, 771 (Tex. App.—Dallas 2005, pet. denied) (An “unpleaded
issue may be deemed tried by consent when evidence on the issue is developed
under circumstances indicating both parties understood the issue was in the case,
and the other party failed to make an appropriate complaint.”). We overrule issue
one.
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A.S. filed a motion for new trial, in which she challenged K.D.’s right to
relief. The trial court denied the motion, and A.S. does not challenge the denial of
her motion for new trial on appeal.
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Findings of Fact and Conclusions of Law
In issue two, A.S. complains that the trial court filed untimely findings of
fact and conclusions of law that required her to guess at the trial court’s reasons for
its ruling. The trial court heard the case on June 3, 2013. On July 10, A.S.
requested findings of fact and conclusions of law. On September 11, the trial court
signed its order modifying the parent-child relationship. On October 10, A.S. again
requested findings of fact and conclusions of law. On December 10, the trial court
signed findings of fact and conclusions of law.
A party must request findings of fact and conclusions of law within twenty
days after judgment is signed, and the clerk of the court shall immediately bring
the request to the trial court’s attention. Tex. R. Civ. P. 296. The trial court must
file its findings and conclusions within twenty days after a timely request is filed.
Tex. R. Civ. P. 297. If the trial court fails to do so, the requesting party must,
within thirty days after filing the original request, file a notice of past due findings
of fact and conclusions of law. Id. The notice must state the date on which the
original request was filed and the date the findings and conclusions were due. Id.
Once the notice is filed, the time for the trial court to file its findings of fact and
conclusions of law is extended to forty days from the date of the original request.
Id. A party may request specified additional or amended findings or conclusions
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within ten days after the trial court files its findings and conclusions. Tex. R. Civ.
P. 298.
Because A.S.’s first request was prematurely filed, the request was deemed
filed on September 11, 2013, the date the judgment was signed. See Tex. R. Civ. P.
296; see also Tex. R. Civ. P. 306c; Echols v. Echols, 900 S.W.2d 160, 161 (Tex.
App.—Beaumont 1995, writ denied). On October 10, after the deadline for filing
findings and conclusions had passed, A.S. provided a second request. However,
this request is not titled as a notice of past due findings and neither stated the date
on which the original request was filed, nor the date the findings and conclusions
were due, as required by Rule 297. See Tex. R. Civ. P. 297. Nor does the record
indicate that A.S. filed a motion requesting additional findings or conclusions.
Accordingly, A.S. has failed to preserve issue two for appellate review. See Baker
v. Peterson, No. 10-02-00113-CV, 2004 Tex. App. LEXIS 3245, at *3 (Tex.
App.—Waco Apr. 7, 2004, no pet.) (mem. op.) (Failure to provide a notice of past
due findings and conclusions that includes the recitations required by Rule 297
results in waiver on appeal.). Even if the issue had been preserved, we cannot say
that A.S. has been prevented from presenting her case on appeal. In light of the
complete reporter’s and clerk’s records, A.S. had the opportunity to fully brief, and
we are able to fully review, whether the trial court’s judgment is supported by the
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evidence.2 See In the Interest of C.A.Y., No. 04-05-00302-CV, 2006 Tex. App.
LEXIS 802, at **13-14 (Tex. App.—San Antonio Feb. 1, 2006, pet. denied) (mem.
op.); see also In the Interest of J.I.T.P., 99 S.W.3d 841, 848-49 (Tex. App.—
Houston [14th Dist.] 2003, no pet.). We overrule issue two.
Modification
In issue three, A.S. challenges the trial court’s order modifying
conservatorship. A trial court may modify a possession order if modification would
be in the child’s best interest and the circumstances have materially and
substantially changed. Tex. Fam. Code Ann. § 156.101(a)(1) (West 2014). The
trial court may consider the standard possession guidelines, the child’s age,
developmental status, circumstances and needs; the conservators’ circumstances;
and any other relevant factor. Id. § 153.256. Regarding a child’s best interest,
factors to consider include: (1) the child’s desires; (2) emotional and physical
needs of the child now and in the future; (3) emotional and physical danger to the
child now and in the future; (4) parental abilities of the individuals seeking
custody; (5) programs available to assist the individuals to promote the child’s best
interest; (6) the individuals’ plans for the child; (7) stability of the home or
proposed placement; (8) acts or omissions of the parent which may indicate that
2
A.S. concedes that there is a complete record before this Court.
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the existing parent-child relationship is not proper; and (9) any excuse for the acts
or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976);
see Tex. Fam. Code. Ann. § 263.307(b) (West 2014).
We review a trial court’s modification order for abuse of discretion.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Under an abuse of
discretion standard, the legal and factual sufficiency of the evidence are not
independent grounds of error but are merely factors in assessing whether the trial
court abused its discretion. Green v. Green, No. 09-10-00364-CV, 2011 Tex. App.
LEXIS 3988, at *6 (Tex. App.—Beaumont May 26, 2011, pet. denied) (mem. op.).
The trial court does not abuse its discretion if its order is supported by some
evidence of a substantive and probative character. Id. “Trial courts have wide
discretion to determine a child’s best interest, including issues of custody, control,
possession[,] and visitation.” Davis v. Davis, No. 01-12-00701-CV, 2014 Tex.
App. LEXIS 2591, *28 (Tex. App.—Houston [1st Dist.] Mar. 6, 2014, no pet.)
(mem. op.). We review the entire record to determine whether the trial court’s
decision was arbitrary or unreasonable. Id. at *29.
K.D. testified that A.E.D. began living with him in May 2009. He stepped in
because A.E.D. was constantly tardy at school and was not completing his school
work. According to A.E.D.’s school records, he had been tardy approximately
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seventy times. K.D. testified that he has had no issues getting A.E.D. to school on
time. A.E.D. explained during his interview in chambers that he has been on time
during the days he stayed with A.S. A.S. testified that A.E.D. did not begin
consistently living with K.D. until March 2011.
K.D. testified that A.E.D. has been classified as emotionally distressed and
placed in special education. A.S. testified that she fought to get A.E.D. into those
special education classes without support from anyone else. Psychiatrist Sudheer
Kaza testified that he diagnosed A.E.D. with bipolar disorder and ADHD. K.D.
testified that he took A.E.D. off his medication. A.S. explained that A.E.D.’s
tardiness resulted from sleep inertia, a possible trait of bipolar disorder. She
testified that A.E.D. needs medication to control his bipolar disorder, but K.D. has
denied her access to A.E.D.’s insurance.
K.D. testified that A.E.D. does not like rules and has a hostile relationship
with his stepmother. L.D., A.E.D.’s stepmother, testified that A.E.D. has struck
her, stolen her telephone, cursed at her, sent hateful text messages to her, and
incurred a large bill for pornography. Counselor Tanya Goldbeck stated that
A.E.D. has a loving and caring relationship with K.D., but constantly fights with
L.D. According to A.E.D., there are always conflicts at K.D.’s home. A.E.D.
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admitted that he does not get along with L.D. A.E.D. explained that L.D. gets
angry with him, but does not discipline her own children.
K.D. testified that A.E.D. has struck him, run away, stolen A.S.’s vehicle,
wrecked his grandfather’s vehicle, and has poor grades in school. A.S. testified that
A.E.D. broke into both her home and K.D.’s home. L.D. testified that the police
have been called to her home on several occasions. She also testified that A.E.D. is
failing school, refuses to do his schoolwork, and skips class. According to A.S,
A.E.D. had run away and might be involved with drugs. She testified that A.E.D.
had threatened suicide three times while residing with K.D., but A.E.D. testified
that these are empty threats. K.D. testified that A.E.D. has emotional problems, is
lazy and manipulative, and will always misbehave. Goldbeck found that A.E.D. is
manipulative, feels anyone who tells him what to do is bothering him, and is
“skilled in escaping from responsibilities due to angers and resentments.”
K.D. testified that he loves A.E.D., that raising A.E.D. is a full-time job, and
that A.E.D. needs a man in his life. L.D. testified that she loves A.E.D., she wants
the best for him, and he needs guidance and discipline. Assistant Principal Brandon
Basinger testified that before living with K.D., A.E.D. had above average
disciplinary issues, but that A.E.D. now has no more disciplinary issues than an
average child of his age. Basinger believed that outside-of-school factors had
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contributed to these changes. Kathy Reamy, a special education teacher specialist,
testified that A.E.D.’s disciplinary issues have decreased over the past three years.
K.D. and L.D. testified that A.E.D. has stated a desire to live with both
parents, but K.D. testified that A.E.D.’s preference depends on whether he is in
trouble. K.D. believed that A.E.D. needs constant supervision that A.S. cannot
provide. L.D. opined that A.E.D. gets away with a lot with A.S. K.D. and L.D.
both believed that military school was an option for A.E.D. According to
Goldbeck, there is a focus on scheduling and homework in K.D.’s home, but in
A.S.’s home, A.E.D. is often excused because of “the idea of his ‘severe emotional
problems.’” Reamy opined that K.D. is the parent most concerned about A.E.D.’s
best interest.
A.S. believed that it would be in A.E.D.’s best interest to reside with her.
She testified that A.E.D.’s impulsivity is part of his disability and he needs
psychiatric care and counseling. A.S. also believed that A.E.D. needs a private
placement where he can receive the special education support that he needs. She
testified that she and A.E.D. get along well and A.E.D. is never hostile toward her.
She denied being lenient with A.E.D. and explained that she respects him, is able
to control him, and does not yell at him or degrade him like K.D. does. Kaza
opined that A.S. is a good mother and took good care of A.E.D. E.R., A.E.D.’s
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maternal grandfather, testified that A.S. had always placed A.E.D.’s needs first and
that if she had primary custody, she would make a good-faith attempt at resolving
some of A.E.D.’s issues. A.E.D. testified that he wanted to live with A.S. and was
happy with A.S.
Based on the evidence presented to the trial court, since the 1998 order was
entered, A.E.D. no longer resides with A.S., but has resided with K.D. for a
significant period of time. Because of this change in A.E.D.’s home surroundings,
the trial court could reasonably conclude that the circumstances have materially
and substantially changed. See Tex. Fam. Code Ann. § 156.101(a)(1); see also
Arredondo v. Betancourt, 383 S.W.3d 730, 734-35 (Tex. App.—Houston [14th
Dist.] 2012, no pet.) (Material changes in circumstances include a change in the
child’s home surroundings.); Child v. Leverton, 210 S.W.3d 694, 698 (Tex. App.—
Eastland 2006, no pet.) (A trial court may consider a child’s stability when
determining whether a material and substantial change in home circumstances has
occurred.).
The record contains differing evidence regarding which parent’s home
would be the best placement for A.E.D. A.E.D. said he wanted to live with A.S.,
but the record suggests that A.E.D.’s preference changes. Regarding K.D.’s home,
the record contains evidence that: (1) while in K.D.’s custody, the police had been
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called to K.D.’s home, A.E.D. had threatened to commit suicide, A.E.D. is failing
and skipping school, and A.E.D. has a hostile relationship with L.D.; (2) there is
conflict in K.D.’s home; (3) A.E.D.’s disciplinary problems decreased since living
with K.D.; (4) K.D. took A.E.D. off his medication and withheld an insurance card
from A.S.; (5) K.D. and L.D. love A.E.D.; and (6) A.E.D. was no longer tardy for
school. Regarding A.S.’s home, the record contains evidence that: (1) while living
with A.S., A.E.D. was tardy to school on numerous occasions, which A.S.
attributed to sleep inertia, and had more disciplinary problems than average; (2)
A.S. is a good mother, takes good care of A.E.D., worked to obtain special
education classes for A.E.D., and places A.E.D. first; (3) A.S. excuses A.E.D.’s
behavior because of “the idea of his ‘severe emotional problems[;]’” and (4) A.S. is
respectful to and gets along with A.E.D.
The record further indicates that A.E.D.’s bad behavior has occurred at both
parents’ homes and that A.E.D. misbehaves in response to discipline. According to
the record, A.E.D. does not like rules, rebels when asked to comply with the rules,
is manipulative, and is “skilled in escaping from responsibilities due to angers and
resentments.” K.D. and L.D. planned to consider military school for A.E.D. A.S.
planned to obtain psychiatric care and counseling for A.E.D. and private placement
where he could receive special education.
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“A trial court may devise a possession order that is suitable for the custody
situation at issue.” In the Interest of R.A.M., No. 09-12-00331-CV, 2013 Tex. App.
LEXIS 606, at *7 (Tex. App.—Beaumont Jan. 24, 2013, pet. denied) (mem. op.).
The trial court had before it evidence indicating that the home with the most
structured and disciplined environment was in A.E.D.’s best interest. As sole judge
of the weight and credibility of the evidence, the trial court could reasonably
conclude that K.D. was the parent best suited to provide such an environment. See
City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005). Viewing the entire
record, we conclude that the trial court’s modified order is supported by some
evidence of a substantive and probative character; thus, the trial court did not abuse
its discretion by modifying the 1998 custody order. See Davis, 2014 Tex. App.
LEXIS 2591, at *28; see also Green, 2011 Tex. App. LEXIS 3988, at *6. We
overrule issue three and affirm the trial court’s order.
AFFIRMED.
________________________________
STEVE McKEITHEN
Chief Justice
Submitted on June 17, 2014
Opinion Delivered September 4, 2014
Before McKeithen, C.J., Horton and Johnson, JJ.
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