in the Interest of I.K.G., a Child

CourtCourt of Appeals of Texas
DecidedFebruary 15, 2023
Docket10-22-00043-CV
StatusPublished

This text of in the Interest of I.K.G., a Child (in the Interest of I.K.G., a Child) 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 the Interest of I.K.G., a Child, (Tex. Ct. App. 2023).

Opinion

IN THE TENTH COURT OF APPEALS

No. 10-22-00043-CV

IN THE INTEREST OF I.K.G., A CHILD

From the County Court at Law Navarro County, Texas Trial Court No. C21-29703-CV

MEMORANDUM OPINION

In four issues, appellants, J.G. and T.B., challenge the trial court’s order appointing

a non-parent, C.S., sole managing conservator and appointing J.G. and T.B. possessory

conservators with supervised visitation of their child, I.K.G. We affirm.

Background

When I.K.G. was born in late 2019, the Texas Department of Family and Protective

Services (the “Department”) filed suit to terminate J.G. and T.B.’s parental rights to I.K.G.

and another child. J.G. and T.B. placed I.K.G. in C.S.’s care shortly after birth, and the

Department non-suited its termination petition. On May 12, 2021, after I.K.G. had been in C.S.’s custody for more than a year, C.S.

filed her original petition in suit affecting the parent-child relationship seeking, among

other things, sole managing conservatorship of I.K.G., no access for J.G. and T.B. or, in

the alternative, supervised visitation, and child support. Both J.G. and T.B. were served

with C.S.’s petition, but neither filed answers in the trial court. Nevertheless, both J.G.

and T.B. participated in the hearing conducted on C.S.’s petition.

As they have throughout this case, J.G. and T.B. represented themselves. C.S. and

J.G. testified at the hearing. At the conclusion of the hearing, the trial court signed an

order appointing C.S. as sole managing conservator of I.K.G., appointing J.G. and T.B. as

possessory conservators, ordering that J.G. and T.B.’s visitation with I.K.G. be supervised,

and ordering J.G. and T.B. to each pay $200 per month in child support, among other

things. Thereafter, J.G. and T.B. filed a joint pro se notice of appeal.

Sealing of the Entire Clerk’s and Reporter’s Records

At the outset of our opinion, we must address the trial court’s decision to seal the

entire Clerk’s and Reporter’s Records on its own motion.1 Texas Rule of Civil Procedure

76a provides, in pertinent part, that:

1We recognize that Texas Rule of Civil Procedure 76a(8) provides that: “Any order (or portion of an order or judgment) relating to sealing or unsealing court records shall be deemed to be severed from the case and a final judgment which may be appealed by any party or intervenor who participated in the hearing preceding issuance of such order.” TEX. R. APP. P. 76a(8). Here, neither party appeals the trial court’s sealing order. However, because the trial court has sealed the entire Clerk’s and Reporter’s Record without following the provisions of Texas Rule of Civil Procedure 76a(8), and because the sealing of the entire Clerk’s and Reporter’s Records impacts this Court’s ability to address the sufficiency arguments raised by the parties without violating the sealing order, we address the propriety of the trial court’s sealing

In the Interest of I.K.G., a child Page 2 No court order or opinion issued in the adjudication of a case may be sealed. Other court records[2], as defined in this rule, are presumed to be open to the general public and may be sealed only upon a showing of all of the following:

(a) a specific, serious and substantial interest which clearly outweighs:

(1) this presumption of openness;

(2) any probable adverse effect that sealing will have upon the general public health or safety;

(b) no less restrictive means than sealing records will adequately and effectively protect the specific interest asserted.

TEX. R. CIV. P. 76a(1). The movant attempting to seal court records must prove these

elements by a preponderance of the evidence. See TEX. R. CIV. P. 76a(3) (“Court records

may be sealed only upon a party’s written motion, which shall be open to public inspection.”

(emphasis added)); see also Musculoskeletal Imaging Consultants, LLC v. Jar Enters., Inc., 631

S.W.3d 739, 742 (Tex. App.—San Antonio 2021, no pet.). Further, “[p]arties attempting

to meet this standard must follow the rule’s procedural requirements.” HouseCanary, Inc.

v. Title Source, Inc., 622 S.W.3d 254, 259 (Tex. 2021). In addition to filing a written motion

to seal, the movant must post notice advising the public that a hearing will be held on the

order. See TEX. R. APP. P. 47.1 (“The court of appeals must hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal.”), 47.3 (“All opinions of the courts of appeals are open to the public and must be made available to public reporting services, print or electronic.”).

2“Court Records,” a defined in Texas Rule of Civil Procedure 76a are most court-filed documents and certain settlement agreements and certain discovery materials not filed of record. TEX. R. CIV. P. 76a(2); see Gen. Tire, Inc. v. Kepple, 970 S.W.2d 520, 523 (Tex. 1998).

In the Interest of I.K.G., a child Page 3 motion to seal describing the nature of the controversy and the records at issue and

informing the public that any person may intervene and be heard. See TEX. R. CIV. P.

76a(3); see also HouseCanary, Inc., 622 S.W.3d at 259. The movant must file verified copies

of the posted notice with the trial court clerk and the clerk of the supreme court. See TEX.

R. CIV. P. 76a(3). Thereafter, the trial court must hold a hearing on the motion to seal “as

soon as practicable,” but not sooner than fourteen days after the motion was filed and

notice was posted. See id. at R. 76a(4). Orders determining motions relating to sealing or

unsealing court records must be written, open to the public, and contain specific findings

relating to Rule 76a(1). See id. at R. 76a(1), (6).

Based on the record before us, neither party filed a motion to seal the records, and

the trial court did not conduct a hearing on the issue of sealing the record. Furthermore,

the trial court’s order contains none of the required findings under Texas Rule of Civil

Procedure 76a(1). See id. at R. 76a(1). We therefore conclude that the trial court had no

authority to seal the entire Clerk’s and Reporter’s Record on its own motion. See id.; see

also id. at R. 76a(3). Accordingly, the trial court’s sealing order is void. See Masa Custom

Homes, LLC v. Shahin, 547 S.W.3d 332, 338 (Tex. App.—Dallas 2018, no pet.) (concluding

that when a judge has no authority to render an order or judgment, that order or

judgment is void). Because court records are presumed to be open, and because the trial

court’s sealing order is void for non-compliance with Texas Rule of Civil Procedure 76a,

In the Interest of I.K.G., a child Page 4 we dissolve the trial court’s order sealing the entire Clerk’s and Reporter’s Records signed

on February 16, 2022.

Analysis

CONSERVATORSHIP

In their first issue, J.G. and T.B. argue that the trial court abused its discretion by

naming C.S. as the sole managing conservator of I.K.G. because the evidence is

insufficient to overcome the parental presumption that the appointment of J.G. and T.B.

as sole or joint managing conservators would not significantly impair I.K.G.’s physical

health and emotional development. We disagree.

Standard of Review

“Trial courts have wide discretion with respect to conservatorship, control,

possession, and visitation matters involving the child.” Compton v. Pfannenstiel, 428

S.W.3d 881, 886 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing In re J.A.J., 243

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