in the Interest of S.S., a Minor Child ( 2022 )

AFFIRMED and Opinion Filed May 19, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-21-00109-CV
IN THE INTEREST OF S.S., A MINOR CHILD
On Appeal from the 256th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-17-03102
MEMORANDUM OPINION
Before Justices Partida-Kipness, Reichek, and Goldstein
Opinion by Justice Reichek
This is an appeal from an order in a suit to modify the parent–child
relationship. In a single issue, Father contends the trial court erred in finding a
material and substantial change in circumstances had occurred and in modifying the
parent-child relationship to allow Mother to take their daughter, S.S., out of the
country. We affirm the trial court’s order.
Background
Father and Mother are the parents of S.S., a child born in 2016. The parties
divorced in 2017 and were named as joint managing conservators of S.S., with
Mother having primary custody. In 2018, Mother filed a petition to modify the
parent-child relationship requesting, among other things, that she be allowed to
obtain a United States passport for S.S. and take S.S. with her to The Gambia to see
her maternal grandfather, whose health was declining. Father opposed Mother being
able to take S.S. out of the country and the trial court denied Mother’s request.
In July 2019, Mother travelled to see her parents in The Gambia. Mother
testified she notified Father of her intent to travel, but he did not respond to her
messages. Because of this, Mother took S.S. to stay with an aunt in Chicago while
she was away.
In August 2019, Father filed this suit to modify the parent-child relationship
asking the court to reduce his child support obligation. Mother filed a counter-
petition seeking to increase the amount of support.
Beginning in October 2019, Father ceased his visitation with S.S. Father said
it was because he was told the custody schedule was not enforceable and he was
waiting for a new court order to be put in place. Father did not see S.S. from October
5, 2019 until August 8, 2020. During that period, Mother sent Father numerous
messages asking that he take S.S. for his scheduled periods of possession. Mother
stated she eventually stopped sending messages because Father told her he was “not
going to show up for [S.S].”
In September 2020, Mother amended her counter-petition to request again that
she be allowed to obtain a passport for S.S. and travel with her internationally.
Father subsequently amended his petition to request the court “continue to
–2–
permanently deny [Mother’s] request for international travel and to obtain and/or
have possession of the child’s passport.”
A hearing was conducted on the cross-petitions on November 5, 2020. With
respect to the international travel issue, Father testified he opposed Mother’s request
because Mother had threatened to remove S.S. from the country and never bring her
back. Father further testified that Mother did not tell him where S.S. was while she
was in The Gambia and that she “hid” S.S. from him. As for Father’s refusal to keep
S.S. while Mother travelled, Father stated, “It is not my responsibility whenever
[Mother] have to go on a vacation for me to hold the child. There’s nowhere in the
Texas Family Code where it states that if mother is going on vacation the father have
to hold the child.”
Mother denied threatening to abscond with S.S. to another country. She stated
she is a United States citizen with a career as a registered nurse. She testified she
had no intention of returning to The Gambia permanently where she would earn less
than $200 per month. Although Mother wanted S.S. to be able to meet her
grandparents, she was willing to accept restrictions on her ability to travel with S.S.
to only countries that participate in the Hague Convention. Mother stated her brother
lives in London and she had other family members in Sweden, France, and Germany.
According to Mother, Father told her he would never agree to let S.S. get a passport
because Mother was making him pay child support.
–3–
Mother also denied she hid S.S. from Father while she was visiting her
parents. Mother stated she told Father she was travelling and, when Father
eventually called and asked where S.S. was, she told him S.S. was in Chicago.
Mother stated that, during the ten-month period in which Father did not see S.S., she
frequently had to find babysitters or miss work.
After hearing the evidence, the trial court stated,
It’s tough to hear about a child being left behind in the care of somebody
else because the child cannot travel with the mother and [] the father
would not take the child so the child had to be left with another relative.
I just - - I just - - that is something that happened since the last order. I
don’t think it’s fair to the child. I don’t think it’s in the child’s best
interest. So the Court is going to authorize international travel;
however, it’s only to Hague Convention participating countries. So
Gambia is prohibited until they are a signatory to the Hague
Convention. The Court does not find a risk of international abduction.
So the Court is going to order both parents to cooperate with the
application of a passport.
The trial court signed its final order on January 22, 2021.
Father timely filed a request for findings of fact and conclusions of law. He
did not, however, file a notice of past due findings of fact and conclusions of law as
required by rule 297 of the Texas Rules of Civil Procedure. See TEX. R. CIV. P. 297.
No findings and conclusions were made. Father then brought this appeal.
Analysis
In a single issue, Father contends the trial court abused its discretion in
ordering a modification of the international travel restrictions for S.S. because
Mother failed to prove a material and substantial change in circumstances had
–4–
occurred. In determining whether the trial court abused its discretion, we engage in
a two part inquiry: (1) whether the trial court had sufficient information upon which
to exercise its discretion; and (2) if so, whether the trial court erred in its exercise of
that discretion. In re J.P.M., No. 05-18-00548-CV, 2019 WL 6768763, at *1 (Tex.
App.—Dallas Dec. 12, 2019, no pet.) (mem. op.). We recognize the trial court is in
the best position to observe and assess the witnesses’ demeanor and credibility and
to sense the “forces, powers, and influences” that may not be apparent from merely
reading the record on appeal. In re C.M.C., No. 05-15-01359-CV, 2016 WL
7166415, at *4 (Tex. App.—Dallas Nov. 9, 2016, no pet.) (mem. op.). Accordingly,
we defer to the trial court’s resolution of underlying facts and its credibility
determinations that may have affected its decision. Id. We do not substitute our
judgment on those matters for that of the trial court. Id. If some evidence of a
substantial and probative character supports the trial court’s decision, there is no
abuse of discretion. In re K.M.B., 606 S.W.3d 889, 894 (Tex. App.—Dallas 2020,
no pet.).
The trial court may modify an order establishing possession of and access to
a child only if the modification would be in the child’s best interest and there has
been a material and substantial change of circumstances. TEX. FAM. CODE ANN.
§ 156.101. In deciding whether a material and substantial change of circumstances
has occurred, the trial court is not confined to rigid or definite guidelines. In re
C.M.C., 2016 WL 7166415, at *4. Instead, the determination is fact specific and
–5–
must be made according to the circumstances as they arise. Id. The law does not
prescribe any particular method for showing changed circumstances, which may be
established by circumstantial evidence. Id.Among the things a trial court may consider when deciding if there has been
a change of circumstances is a demonstrated inability to co-parent effectively since
the time the last order was entered. Id. at *6; see also In re M.R.H., No. 13-15-
00516-CV, 2016 WL 8919846, at *3 (Tex. App.—Corpus Christi–Edinburg Dec.
21, 2016, no pet) (mem. op.); Coburn v. Moreland, 433 S.W.3d 809, 828 (Tex.
App.—Austin 2014, no pet.). Here the evidence showed that, since the date of the
last order, there was a ten-month period during which Father refused to exercise his
periods of possession even when requested to do so by Mother. Furthermore, Father
testified he felt it was not his responsibility to keep S.S. if Mother wanted or needed
to travel, and he was unwilling to care for S.S. other than during his periods of court
ordered possession. Mother testified that Father used the passport issue as leverage
to try to reduce his child support obligation. Father’s unwillingness to amicably co-
parent meant that Mother would be required to find alternative care for her young
child for extended periods if she wished to see her family outside the United States.
We conclude the trial court did not abuse its discretion in concluding there had been
a material and substantial change in circumstances.
Although not raised as a separate issue, Father also appears to suggest the trial
court erred in concluding there was not a risk of international abduction if Mother
–6–
were allowed to take S.S. out of the country. Under section 153.501 of the Texas
Family Code, if credible evidence is presented indicating a potential risk of the
international abduction of a child by a parent, the court must determine whether it is
necessary to take measures to protect the child. TEX. FAM. CODE ANN. § 153.501.
In deciding whether a risk of abduction exists, the court is required to consider
evidence that the parent (1) has “taken, enticed away, kept, withheld, or concealed a
child in violation of another person’s right of possession,” (2) has “previously
threatened to take, entice away, keep, withhold, or conceal a child in violation of
another person’s right of possession,” (3) lacks financial reason to stay in the United
States, (4) has “recently engaged in planning activities that could facilitate the
removal of the child from the United States”, (5) has a history of domestic violence,
or (6) has a criminal history or history of violating court orders. Id. at § 153.502.
The only evidence Father presented to show a risk of abduction was his
testimony that Mother “hid” S.S. at her aunt’s house while she visited her parents
and his allegation that Mother told him if she took S.S. out of the country, she would
not come back. Mother vehemently denied both these things and it was within the
trial court’s discretion to believe her testimony over Father’s. In re C.M.C., 2016
WL 7166415, at *4. Mother additionally testified she was a United States citizen
with a career as a registered nurse. She stated she had no intention of relocating and
that doing so would cause her financial distress.
–7–
Based on the foregoing, we conclude the evidence supports the trial court’s
decision to modify the parent-child relationship by allowing Mother to obtain a
passport for S.S. and travel with her internationally. We affirm the trial court’s
order.
/Amanda L. Reichek/
AMANDA L. REICHEK
JUSTICE
210109F.P05
–8–
S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF S.S., A On Appeal from the 256th Judicial
MINOR CHILD District Court, Dallas County, Texas
Trial Court Cause No. DF-17-03102.
No. 05-21-00109-CV Opinion delivered by Justice
Reichek. Justices Partida-Kipness
and Goldstein participating.
In accordance with this Court’s opinion of this date, the order of the trial
court is AFFIRMED.
It is ORDERED that appellee AMINATA NJIE recover her costs of this
appeal from appellant ASSAN SARR.
Judgment entered May 19, 2022
–9–