Cooper v. Texas Department of Human Resources

691 S.W.2d 807, 1985 Tex. App. LEXIS 6989
CourtCourt of Appeals of Texas
DecidedMay 29, 1985
Docket14256
StatusPublished
Cited by8 cases

This text of 691 S.W.2d 807 (Cooper v. Texas Department of Human Resources) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cooper v. Texas Department of Human Resources, 691 S.W.2d 807, 1985 Tex. App. LEXIS 6989 (Tex. Ct. App. 1985).

Opinions

SHANNON, Chief Justice.

This appeal concerns the appointment of a managing conservator pursuant to Tex.Fam.Code Ann. § 14.01 (1975).

Appellant John Dell Cooper filed suit in the district court of Tom Green County seeking a divorce from Marilyn Ruth Cooper. By his suit, John also sought appointment as managing conservator of their four children and a division of the community property. Marilyn likewise sought appointment as managing conservator and an order requiring John to make child support payments.

Upon trial to the court, the district court rendered judgment granting the divorce and dividing the community property. The court appointed neither John nor Marilyn as managing conservator, but instead appointed the Texas Department of Human Resources. Only John has perfected an appeal from the district court’s judgment. This Court will reverse the judgment.

John does not question that part of the judgment ordering the divorce and dividing the community property. Instead, he attacks the judgment upon the basis that the district court abused its discretion in appointing the Texas Department of Human Resources as managing conservator of the children.

The four children are: John Dell, Jr., age nine; Tiffanie Diane, age eight; Tonya Nicole, age four; and Kara Miranda, age one and a half. Kara suffers from defects affecting her eyes, facial muscles and one hand. She has been treated for her condition and she will require treatment in the future.

The natural right between parents and their children is one of constitutional dimensions and should be disturbed only for the most compelling and serious of reasons. Stanley v. Illinois, 405 U.S. 645, 92 S.Ct. 1208, 31 L.Ed.2d 551 (1972); In Interest of G.M., 596 S.W.2d 846 (Tex.1980); Wiley v. Spratlan, 543 S.W.2d 349 (Tex.1976). It is presumed that the interests of young children are best served by naming their natural parent as managing conservator. Mumma v. Aguirre, 364 S.W.2d 220 (Tex.1963). As a result, a natural parent will be appointed managing conservator unless the court concludes that the appointment of the parent would not be in the best interest of the child. Tex.Fam. Code § 14.01(b). The party seeking to bar a natural parent from appointment to managing conservatorship has the burden to show that the best interest of the child would instead be served by the appointment of the non-parent. Herrera v. Herrera, 409 S.W.2d 395 (Tex.1966); See Duckworth v. Thompson, 37 S.W.2d 731 (Tex.Comm.App.1931, judgmt. adopted).

Accordingly, the burden of the Texas Department of Human Resources was twofold: to demonstrate that (1) the best interests of the children would not be served by the appointment of their father as managing conservator and (2) the best interests of the children would be served by the appointment of itself as managing conservator. By rendition of the judgment, the district court necessarily concluded that the Department discharged those burdens. This Court does not agree.

The Department failed to prove that it was not in the best interests of the children for their father to be appointed managing conservator. John Cooper is twenty-eight. He lives with his mother and step-father, Mary and Clem Clutter, in Ruidoso, New Mexico, when he is not in Saudi Arabia working for an energy company. The terms of his employment contract require him to work abroad for thirty-five consecutive days and then permit him to return to this country for thirty-five days on his own [809]*809time. Although John has little formal education, he presently earns $48,000 annually.

John’s marital troubles stretched out for more than a year before the divorce. His former wife, Marilyn, suffers from a mental disturbance and has been in and out of the mental hospital in Big Spring. As the marriage was coming apart, it is clear that John assumed responsibility for the care of the children. With respect to the handicapped child, Kara, it is undisputed that John, solely, cared for her needs. Kara’s physician, Everett A. Moody, summarized how John Cooper had discharged his responsibility in caring for Kara:

In spite of the fact that her father works overseas a large percentage of the time, he has always been the one who has seen to Kara’s care and brings her in personally. He has always done everything we’ve asked him to do. He is one of the most devoted and committed parents I’ve ever met.

On deposition and in response to a question whether John had tended to the medical needs of Kara, Dr. Moody replied:

He certainly has; he’s been faithful in keeping his appointments and enthusiastic about expressing an interest in her needs. He is, in fact, one of the most eager, attentive fathers I can recall.

A San Angelo neighbor, Dennis Deviney, testified that he had lived next door to the Coopers since September of 1979. During those years, Deviney never saw or heard John mistreat the children nor did he see bruises on any of the children. Deviney described John’s relationship with the children as normal. He further stated that when John was out of the country, the children were unsupervised and uncontrolled; they would be outside the house until late at night and would be improperly clothed in the winter. When John was home, the children would be properly dressed and well behaved. Deviney stated that one could tell when Cooper had returned from Saudi Arabia, without seeing him, by the way the children were dressed and by their behavior.

Rita Casey, a foster mother of the three eldest children for several months, testified that John was a good playmate with the children and seemed to be a loving father. The children appeared to love their father and were not afraid of him. Mrs. Casey never saw John mistreat any of the children in the two or three times that she saw him with the children.

The dissenting justice selects a scrap from Mrs. Casey’s testimony and advances it as supportive of his thesis that it would not be in the best interests of the children for their father to be appointed managing conservator: “Finally, appellant’s own witness, a woman who cared for the children for four months, remarked that she wouldn’t want either parent to be her kid’s parents.”

The context of Mrs. Casey’s remark bears examination. When the Department placed the Cooper children with Mrs. Casey, they misbehaved badly. Their misbehavior was encouraged by daily calls from Marilyn telling them that they did not have to mind the “stranger” (Mrs. Casey). The children’s lack of discipline and manners, rooted in the absence of supervision when their father was abroad, prompted Mrs. Casey’s remark. As indicated by a review of all of Mrs. Casey’s testimony, she mistakenly attributed the children’s bad behavior to a lack of discipline by both parents.

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Cooper v. Texas Department of Human Resources
691 S.W.2d 807 (Court of Appeals of Texas, 1985)

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691 S.W.2d 807, 1985 Tex. App. LEXIS 6989, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cooper-v-texas-department-of-human-resources-texapp-1985.