In Re CRT

61 S.W.3d 62, 2001 WL 1000942
CourtCourt of Appeals of Texas
DecidedAugust 31, 2001
Docket07-00-0456-CV
StatusPublished

This text of 61 S.W.3d 62 (In Re CRT) 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
In Re CRT, 61 S.W.3d 62, 2001 WL 1000942 (Tex. Ct. App. 2001).

Opinion

61 S.W.3d 62 (2001)

In the Interest of C.R.T., S.J.T., and D.C.T., Minor Children.

No. 07-00-0456-CV.

Court of Appeals of Texas, Amarillo.

August 31, 2001.

*64 Nolan Greak, Lubbock, for appellant.

John R. Lee, Dunn & Walker, Lubbock, for appellee.

Before BOYD, QUINN, and REAVIS, JJ.

QUINN, Justice.

Appellant, Darla Timms (Darla), appeals from an Order Modifying the Parent Child Relationship and appointing Kimberly Abell (Kim), sole managing conservator of C.R.T., S.J.T., and D.C.T., minor children (collectively referred to as the children). The order also granted possessory conservatorship of the children to their biological mother and father, Darla and Paul Timms (Paul).[1] Via one issue, Darla argues the trial court abused its discretion in denying her sole managing conservatorship of her children.

Background

The children in question are the offspring of Darla and Paul Timms. Though the latter were married for approximately four years and divorced in February of 1995, only one of the offspring, C.R.T., was born during the union. The others, S.J.T. and D.C.T., were conceived thereafter.[2]

At the time of the divorce, Darla and Paul were appointed joint managing conservators of C.R.T. However, the boy, along with his oldest sister S.J.T., were left in August of 1998, by their parents to reside with their aunt, Kim. The latter agreed to take the children because their parents were homeless drug addicts unable to feed them. And, though Darla repeatedly told Kim and the children that she would return for them, she never did. Instead, she conceived her youngest daughter, D.C.T., who she also left with Kim in March of 1999. At the time Kim assumed the care of D.C.T., the child was one month old.

While Darla sporadically visited the children for brief stints of time and sometimes gave them toys, she never provided Kim with any financial assistance. This may be because she was only employed once during the period in which she was addicted to drugs. Furthermore, that job, which consisted of waiting tables at a bar wherein she and Paul acquired their drugs, lasted for a short time.

Later in 1999 and at the age of 31, Darla decided to return to and live at her parent's three bedroom house. There resided not only her mother and father but also Darla's oldest son, T.J. In addition to returning *65 to her parents house, Darla also began working at their service station. They did not pay her, however. Instead, she worked for the room and board.[3] Nor did this 31 year old person drive after returning to her parents house. Whether she did so because she permitted her driver's license to expire or whether the State canceled it is unclear; what is clear is that she had no driver's license and had others drive for her.

After gaining possession of C.R.T., S.J.T., and D.C.T., Kim petitioned to become permanent managing conservator of the children. The court entered temporary orders appointing her as same. So too did it order Paul to pay $200 per month in child support for the support of C.R.T. and S.J.T. Subsequently, Darla was directed to pay $170 in monthly support for D.C.T. Testimony reveals that Darla never complied with that mandate or sent Kim any funds. Whether or not Paul acted similarly is unknown.

Eventually, the petition came for hearing. Kim, Darla, and Paul appeared either individually or through counsel. After hearing the evidence and argument of all involved, the trial court appointed Kim managing conservator.

Standard of Review

Generally, when courts resolve questions regarding conservatorship, the best interest of the child is the primary consideration. Tex. Fam.Code Ann. § 14.07(a) (Vernon 1996); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). Moreover, the trial judge enjoys wide latitude in determining what those best interests are. Gillespie v. Gillespie, 644 S.W.2d 449 (Tex.1982). Indeed, we cannot interfere with his ultimate decision unless we conclude that he abused his discretion in reaching it. In Interest of Doe, 917 S.W.2d 139, 141 (Tex.App.-Amarillo 1996, writ denied). And, discretion is abused only when the determination is arbitrary or unreasonable or fails to comport with guiding rules and principles. Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.1985)). In other words, it is not enough for us to simply disagree with the outcome. Rather, we must conclude that the decision lacked basis in fact or law or involved a misapplication of fact to law.

Next, in debating whether to appoint a parent or nonparent as managing conservator, statute requires the court to presume that the best interests of a child lay in appointing a biological parent. Tex. Fam.Code Ann. § 153.131(a) (Vernon Supp.2001). Yet, the presumption is rebuttable. For instance, proof that such an appointment would significantly impair the child's physical health or emotional development negates it, id.; Brook v. Brook, 881 S.W.2d 297, 298 (Tex.1994), as does proof that the parent voluntarily relinquished actual care, custody or control of the child for one year *66 and the best interests of the child would be served by appointing a nonparent as conservator. Tex. Fam.Code Ann. § 153.373(1) & (2); In re V.L.K., 24 S.W.3d 338, 341-42 (Tex.2000).

Also, there is another situation wherein the presumption does not apply. It concerns the previous appointment of a managing conservator. That is, if such a conservator was previously appointed, the decision to modify that appointment is unaffected by the presumption. In re V.L.K., 24 S.W.3d at 342. And, should that circumstance arise and should the prior conservatorship be joint, the party seeking a modification need only show that 1) the appointment of another would be a positive improvement for and be in the best interests of the child and 2) the circumstances of the child, parent or conservator materially or substantially changed which change rendered the current conservatorship unworkable or inappropriate, the present living environment of the child may endanger the child's physical health or significantly impair his emotional development, or the terms of the existing conservatorship order were substantially and inexcusably violated. Tex. Fam.Code Ann. § 156.203(1) & (2).

Application

C.R.T.

As previously mentioned, Darla and Paul were appointed joint managing conservators of C.R.T. when they divorced. Given this, the presumption that a natural parent should remain conservator is inapplicable.

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Related

Thomas v. Thomas
852 S.W.2d 31 (Court of Appeals of Texas, 1993)
Bailey v. Bailey
987 S.W.2d 206 (Court of Appeals of Texas, 1999)
May v. May
829 S.W.2d 373 (Court of Appeals of Texas, 1992)
Worford v. Stamper
801 S.W.2d 108 (Texas Supreme Court, 1991)
Brook v. Brook
881 S.W.2d 297 (Texas Supreme Court, 1994)
In the Interest of Doe
917 S.W.2d 139 (Court of Appeals of Texas, 1996)
Downer v. Aquamarine Operators, Inc.
701 S.W.2d 238 (Texas Supreme Court, 1985)
Gillespie v. Gillespie
644 S.W.2d 449 (Texas Supreme Court, 1982)
In the Interest of C.R.T., S.J.T., and D.C.T., Minor Children
61 S.W.3d 62 (Court of Appeals of Texas, 2001)
In the Interest of V.L.K.
24 S.W.3d 338 (Texas Supreme Court, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
61 S.W.3d 62, 2001 WL 1000942, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-crt-texapp-2001.