in the Interest of A.H. and C.A.H., II, Children ( 2012 )

IN THE
TENTH COURT OF APPEALS
No. 10-11-00141-CV
IN THE INTEREST OF A.H. AND C.A.H., II, CHILDREN
From the 220th District Court
Bosque County, Texas
Trial Court No. 06-01-00806-BCFM
MEMORANDUM OPINION
Christopher Holmes appeals from an order naming his parents joint managing
conservators with the right to establish the domicile of his two children, A.H. and
C.A.H., II. Holmes was also named a joint managing conservator with possession and
access to the children pursuant to the standard possession order so long as he
participated in counseling with his current wife. TEX. FAM. CODE ANN. Ch. 153, Subch. F
(West 2011). Holmes complains that the trial court erred by giving his parents the right
to establish the children’s domicile rather than placing the children with him. We
affirm.
Procedural History
Christopher and Mitzi are the parents of A.H. and C.A.H., II, children born
during their marriage. In 2006, Christopher and Mitzi divorced and they were named
joint managing conservators of the children, with Mitzi having the right to establish the
children’s residence without regard to geographic location. Christopher’s parents,
Shawn and Barbara Holmes, were given limited possession and access to the children in
the divorce decree.
The children had lived with Shawn and Barbara off and on throughout their
lives, with either or both parents at different times. In September of 2009 Barbara, who
had been listed as an emergency contact, was called by the school to pick up C.A.H.
because he needed to go to the doctor. Mitzi left the children with Shawn and Barbara
permanently approximately a week later. Mitzi picked the children up from school one
day in November of 2009 for lunch and returned them to school, which was the last
time the children saw her. Shawn and Barbara had possession of the children
continuously until the final hearing other than a few visits when Christopher had the
children. In August of 2010, Christopher filed a motion to modify the divorce decree
seeking primary custody of the children. In October of 2010, Shawn and Barbara filed a
petition seeking primary custody of the children as well.
After a bench trial, the court determined that the parties would be named joint
managing conservators of the children and that Shawn and Barbara would have the
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right to establish the children’s domicile without a geographical restriction.
Christopher was awarded possession and access to the children in accordance with the
standard possession order so long as he and his current wife attended counseling
sessions together. The trial court found that the appointment of either parent as
managing conservator would not be in the best interest of the children because it would
significantly impair the children’s health or emotional development.1
Appointment of Managing Conservator
In his sole issue, Christopher complains that the trial court erred by awarding his
parents the right to establish the children’s residence rather than him because there was
insufficient evidence of his lack of fitness as a parent as required by the United States
Supreme Court and the Texas Supreme Court.2 Troxel v. Granville, 530 U.S. 57, 120 S. Ct.
2054, 147 L. Ed. 2d 49 (2000); In re Scheller, 325 S.W.3d 640 (Tex. 2010); In re Chambliss,
257 S.W.3d 698 (Tex. 2008). Presumably Christopher is complaining that the evidence
was insufficient to establish that his appointment as managing conservator would
significantly impair the children’s physical health or emotional well-being. However,
none of the cases cited by Christopher are comparable to this situation. The cases cited
above, Troxel, Scheller, and Chambliss, all involve situations in which grandparents were
seeking visitation with their grandchildren who were currently residing with a parent.
1Mitzi filed an answer but did not appear at the final hearing and has not appealed the judgment.
Therefore, we will not discuss the portions of the order relating specifically to her.
2Christopher does not set forth whether he is challenging the legal or factual sufficiency of the evidence;
however, it is not necessary to make that distinction here.
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None were modification proceedings. Here, A.H. and C.A.H., II were not residing with
either parent at the time of the final hearing, but had been residing with Shawn and
Barbara for well over a year.
There is a presumption that a parent should be appointed as a managing
conservator unless that appointment would not be in the best interest of the child
because the appointment would significantly impair the child’s physical health or
emotional development, generally referred to as the “parental presumption.” TEX. FAM.
CODE ANN. § 153.131(a). However, this presumption does not apply to modification
proceedings. In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000).
Further, it was not necessary for the evidence to demonstrate Christopher’s lack
of “fitness” as a parent or significant impairment because the parental presumption did
not apply. In re V.L.K., 24 S.W.3d at 341. Rather, the standard for granting the
modification is set forth in section 156.101 of the Family Code. See TEX. FAM. CODE ANN.
§ 156.101 (West 2011) (petitioner need only demonstrate that modification would be in
the children’s best interests and that the children were voluntarily relinquished to
another person for at least six months). Therefore, it is not necessary for us to address
the evidence relating to any significant impairment of the children.
Christopher does not argue that the evidence was insufficient regarding the
statutory grounds in section 156.101. Nor does he challenge the constitutionality of the
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statutory provisions. The trial court’s judgment was not erroneous. We overrule
Christopher’s sole issue.
Conclusion
Having found no error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Affirmed
Opinion delivered and filed February 29, 2012
[CV06]
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