in the Interest of H.W.G., a Child

• Court: Court of Appeals of Texas
• Decided: February 18, 2015
• Docket: 05-15-00114-CV
• Status: Published

Opinion

ACCEPTED 05-15-00114-CV FIFTH COURT OF APPEALS DALLAS, TEXAS 2/18/2015 11:49:04 AM LISA MATZ CLERK

NO. 05-15-00114-CV ___________________________________________________ FILED IN 5th COURT OF APPEALS In the Court of Appeals for the Fifth District of DALLAS, TEXAS Texas at Dallas 2/18/2015 11:49:04 AM _____________________________________________ LISA MATZ Clerk

IN THE INTEREST OF H.W.G., A CHILD

MICHAEL GIBB, Appellant,

v.

EMILY STEPHENS Appellee. ___________________________________________

On Appeal from the 366th Judicial District Court of Collin County, Texas Cause No. 366-55837-2009 ___________________________________________________

APPELLANT’S REPLY BRIEF IN SUPPORT OF MOTION TO SUSPEND TRIAL COURT’S ORDER PENDING APPEAL ___________________________________________________

TO THE FIFTH DISTRICT COURT OF APPEALS:

Mother really has no substantive response to the motion to suspend

order.

First, Mother does not even attempt to argue that suspending the

order would harm or be unfair either to her or the child. The closest she can

come is a passing, unexplained reference to “an agreement contrary

001 thereto.” But she does not explain what this means. And, as the transcript

excerpts attached to Father’s motion make clear (and Mother does not

dispute), returning her to the previous access is entirely consistent with that

agreement.

Second, Mother does not attempt to dispute her recent history of drug

abuse, her agreement to the strict terms tying unsupervised access to a

period of clean drug tests, her failure to meet those strict terms, or the

possible resulting danger to the child.

All Mother really says is (1) the trial court found Step 4 access to be in

the child’s best interest, and (2) the trial court is scheduled to take this

matter under advisement in March. Neither contention is accurate, and

neither is relevant.

First, the trial court did not, either in its order or in its on-the-record

discussion of that order, state that Step 4 access was in the child’s best

interest. All the trial court mentioned on the record was “continuous serious

conflict” between the parents—a matter having nothing to do with drug

testing and possession under the prior judgment. The order says only that

Mother has satisfied the prerequisites for Step 4 access—something so

002 obviously untrue that not even Mother made that claim in the trial court (or

in her response to this motion).

Second, Mother’s pending request for temporary orders on appeal

concerns matters entirely unrelated to suspension of the order on appeal

(which only makes sense—why in the world would Mother, as Appellee,

seek temporary orders suspending the order on appeal?). The trial court’s

resolution of the request for temporary orders has nothing to do with the

relief sought by this motion.1

Finally, the trial court’s statements during the hearing made clear the

futility of seeking suspension of the order. Rather than waste his money and

the trial court’s time, Father instead sought relief from this Court—as the

Family Code explicitly permits.

The Family Code authorizes relief “on a proper showing.” TEX. FAM.

CODE ANN. § 109.002(b). Mother claims Father did not make a proper

showing. Again, however, she never provides any basis for this argument.

Father made a showing that Mother’s recent drug use poses a risk to the

child, and that suspending the order will not negatively affect Mother or the

child, or deny them time together. 1 Mother attached a copy of the motion to her response. The motion concerns complaints Mother has about access under the order, and has nothing to do with suspending it pending appeal.

003 In light of Mother’s failure to identify any real reason not to grant

relief, Father asks that this Court err on the side of caution and protect the

child by suspending the order.

Respectfully submitted,

/s/Charles “Chad” Baruch Texas Bar Number 01864300 THE LAW OFFICE OF CHAD BARUCH 3201 Main Street Rowlett, Texas 75088 Telephone: (972) 412-7192 Facsimile: (972) 412-4028 Email: baruchesq@aol.com

Counsel for Relator

Certificate of Compliance

This brief was prepared using Microsoft Word for Mac. Relying on the word count function in that software, I certify that this motion contains 501 words (excluding the case caption, signature block, and certificates).

/s/Charles “Chad” Baruch

004 Certificate of Service

The undersigned counsel of record certifies that a true copy of this instrument was served in accordance with Rule 9.5 of the Texas Rules of Appellate Procedure on each party or that party’s lead counsel on February 18, 2015, as follows:

Charles C. Phillips Philips & Epperson, LP 2301 Virginia Parkway McKinney, Texas 75071 By email to: rcollins@philipsandepperson.com