in the Interest of J.M.W.

• Court: Court of Appeals of Texas
• Decided: March 11, 2010
• Docket: 09-08-00295-CV
• Status: Published

Opinion

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-08-00295-CV

IN THE INTEREST OF J.M.W.

On Appeal from the 279th District Court

Jefferson County, Texas

Trial Cause No. F-201,650

MEMORANDUM OPINION

Sherri Lynn Senegal filed a suit affecting the parent-child relationship of J.M.W. The trial court appointed Senegal as a joint managing conservator of J.M.W. along with the child's parents, Regina Fisher and Roy Wilson. Regina Fisher appeals the trial court's judgment and raises nineteen issues for consideration in this appeal. We affirm the judgment of the trial court.

The appellant presents her first two issues together. In issue one, she contends that the evidence is legally and factually insufficient to overcome the parental presumption. In her second issue, Fisher argues that former Section 14.02(c) controls over the non-substantive revision effected by the enactment of Section 153.131 of the Texas Family Code, and that former Section 14.02 precludes a non-parent from having more rights than a possessory conservator.

Fisher premises her argument on the assumption that former Chapter 14 of the Texas Family Code limited a non-parent to the rights of a possessory conservator. She refers to former Section 14.02(c), which she claims did not allow a trial court to grant a non-parent the right to designate the primary residence of the child. Before its repeal, former Section 14.02(c) stated, in pertinent part, as follows:

A managing conservator who is not the parent of the child has the following rights, privileges, duties, and powers, subject to Subsection (b) of this section, to the rights, privileges, duties, and powers of a possessory conservator as provided in Section 14.04 of this code, and to any limitation imposed by court order in allowing access to the child:

(1) the right to have physical possession, to direct the moral and religious training, and to establish the legal domicile of the child[.]

Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 2, 1993 Tex. Gen. Laws 2989, 2990-91, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282. In addition, former Section 14.021(j) stated:

The procedural and substantive standards established by this chapter apply also to a joint managing conservator who is not a parent of the child, subject to Section 14.02(b) of this code.

Act of May 29, 1987, 70th Leg., R.S., ch. 744, § 6, 1987 Tex. Gen. Laws 2666, 2669, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282.

Before its repeal, former Section 14.02(b) stated in pertinent part, as follows:

Unless by written findings the court determines it would not be in the best interest of the child, a parent appointed as a conservator of the child retains the following rights, privileges, duties, and powers of a parent, subject to any limitation imposed by court order in allowing access to the child. . . .

Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 2, 1993 Tex. Gen. Laws 2989, 2990, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282.

Furthermore, former Section 14.01(b) provided:

A parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child unless:

(1) the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development; or

(2) a person who is not a parent seeks appointment as managing conservator of the child by intervening in or commencing a suit affecting the parent-child relationship, . . . and the court finds that:

(A) the child's parent, if the child has only one parent, or parents have voluntarily relinquished possession and control of the child to the person or agency for a period of one year or more a portion of which was within 90 days preceding the date of intervention or commencement of the suit or proceeding; and

(B) the appointment of the person as managing conservator of the child is in the best interest of the child.

Act of May 29, 1989, 71st Leg., R.S., ch. 370, § 1, 1989 Tex. Gen. Laws 1461, 1461-62, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 113, 282. Read together, these former statutes reveal that a non-parent could be appointed as a joint managing conservator with the power to establish the legal domicile of the child. The Supreme Court held that under former Chapter 14, "the test for the appointment of a parent and nonparent as joint managing conservators is a best interest of the child test." Brook v. Brook, 881 S.W.2d 297, 299 (Tex. 1994). In so doing, the court rejected the appellant's argument for application of the higher standard found in former Section 14.01(b). Id. at 298, 300. Thus, it appears the former statute was not more restrictive than the recodified version of the statute now located in Chapter 153 of the Texas Family Code. See Tex. Fam. Code Ann. § 153.001-.611 (Vernon 2008). We overrule issue two.

Fisher contends that Senegal failed to rebut the presumption that as a parent of J.M.W., Fisher should be appointed as sole managing conservator. See Tex. Fam. Code Ann. § 153.131 (Vernon 2008). Section 153.131 of the Family Code provides that

(a) Subject to the prohibition in Section 153.004 [History of Domestic Violence], unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.

Tex. Fam. Code Ann. § 153.131.

Fisher argues the record lacks specific evidence of her unfitness. For authority, she cites a case in which a nonparent whose petition for sole managing conservatorship was denied in the trial court challenged the sufficiency of the evidence rebutting the parental presumption. See In the Interest of De la Pena, 999 S.W.2d 521, 525, 532 (Tex. App.--El Paso 1999, no pet.). The court held that the trial court did not abuse its discretion in appointing the parent and the nonparent as joint managing conservators when there was evidence that uprooting a child could be harmful to a child's sense of security and ability to trust, but there was no indication that any of the child's visits with her father resulted in disruptive or uncharacteristic behavior or that she suffered any impairment other than some mild distress arising from a comment her father had made. Id. at 533. Turning to the issue of primary possession, the court applied the parental presumption because primary possession is "at the very core of managing conservatorship[.]". Id. at 534. Thus, the court held that the trial court could award primary possession to a nonparent joint managing conservator only when the evidence showed that awarding primary possession to the parent joint managing conservator would result in serious physical or emotional harm to the child. Id. at 534-35. The court upheld the trial court's order placing the child with the parent because the nonparent failed to rebut the presumption that the parent should have primary possession of the child. Id. at 536.

The San Antonio Court of Appeals declined to follow De la Pena on the issue of primary possession. Gardner v. Gardner, 229 S.W.3d 747, 752 (Tex. App.--San Antonio 2007, no pet.). In Gardner, the appellant was the parent of two boys and a girl and the appellee was not the parent of one of the boys. Id. at 750. The parties agreed on joint conservatorship in their mediated divorce and submitted only the issue of primary possession of the two boys to the trial court. Id. at 751. On appeal, the court declined to apply the presumption found in Section 153.131 because that statute "clearly states the presumption applies only to determinations of conservatorship." Id. at 752. The appellant in that case had accused the appellee of sexually abusing their daughter and Child Protective Services found no significant risk factors and closed the case. Id. at 753. The appellee produced evidence that he had made dramatic changes in his life and that he provided a stable environment for the boys. Id. The court held that the trial court had sufficient information on which to exercise its discretion in awarding primary possession to the nonparent joint managing conservator even though the boys would be separated from their sister. Id. at 753-54.

In reviewing a joint managing conservatorship between a parent and a nonparent under the former statute, the Supreme Court construed that the legislative purpose of Family Code Section 14.01(1) was "to require a heightened standard in cases where no parent is to be awarded any type of managing conservatorship" and construed the phrase "a parent" to refer to the opposite of "no parent" and found that the phrase did not "serve to grant to each parent a right to be appointed absent a 'significant impairment' finding." Brook, 881 S.W.2d at 299 n.2. Of course, Brook predates the United States Supreme Court's decision in Troxel. Troxel v. Granville, 530 U.S. 57, 68-69, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) ("[S]o long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children."). Fisher addresses the constitutional issue in issues eight through eleven, which are discussed later in this opinion. Assuming that the constitutional concerns expressed in Troxel require a trial court to apply the parental presumption found in Section 153.131 to the circumstances in the present case, the trial court did not abuse its discretion in finding that Senegal rebutted the presumption.

In a case in which a nonparent seeks appointment as a joint managing conservator,

[t]he presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that:

(1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was within 90 days preceding the date of intervention in or filing of the suit; and

(2) the appointment of the nonparent or agency as managing conservator is in the best interest of the child.

Tex. Fam. Code Ann. § 153.373.

Senegal testified that J.M.W. began staying at her house on weekends in 2005. According to Senegal, sometimes Fisher would not pick him up, so Senegal or her husband would stay home from work to care for the child. Senegal testified that she and Fisher decided J.M.W. would live with Senegal, and the child lived with her for two years. Senegal enrolled the child in daycare and paid for the service. J.M.W. attended the daycare from August 2006 through June 2007. Fisher provided no support to Senegal. Fisher admitted that J.M.W. was enrolled in the daycare for ten months and that he was living with Senegal during that time. A witness who worked with both women in 2005 and 2006 testified that J.M.W. was living with Senegal. This witness testified that on some Mondays Senegal and Fisher would discuss Fisher's failure to pick up the child for the weekend. Although the trial court heard conflicting evidence regarding the length of time that J.M.W. lived with Senegal, there is no dispute that Fisher voluntarily relinquished her possession and control of the child to Senegal during that time.

As the finder of fact for the proceeding, the trial court is the exclusive judge of the credibility of the witnesses and the weight to be given their testimony. Shear Cuts, Inc. v. Littlejohn, 141 S.W.3d 264, 270-71 (Tex. App.--Fort Worth 2004, no pet.). The trial court heard testimony that the child was living with Senegal when Senegal enrolled the child in daycare and that the child started attending the daycare in August 2006. Senegal testified that the child lived with her for "right at two years." She was still caring for the child when the child started attending a public elementary school in August 2007. Senegal filed the suit on September 14, 2007.

In addition to the evidence that Fisher voluntarily relinquished the care, control and possession of J.M.W. to Senegal for a period of one year or more, the record contains evidence from which the trial court could determine that it would be in the best interest of the child for Senegal to be appointed as the joint managing conservator with the right to designate the child's primary residence. Fisher limits her argument to a contention that the evidence does not establish that J.M.W. is in imminent danger of physical or emotional harm and does not challenge the trial court's finding on the ground that the evidence does not support the trial court's finding under the Holley factors. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The trial court heard testimony that the child had bonded with Senegal and her family. Senegal provided a home for J.M.W. and assisted with his education. The trial court also heard evidence that Fisher did not provide a stable environment for J.M.W.

The trial court's finding is supported by the evidence adduced at trial. Therefore, the trial court did not abuse its discretion in ruling that Senegal rebutted the parental presumption. We overrule issue one.

Fisher presents her third through seventh issues together. Issue three challenges the legal and factual sufficiency of the evidence offered to rebut the parental presumption. Issue four contends the trial court erred in denying an evidentiary hearing on Fisher's motion for new trial. Issue five contends the technical rules of procedure used to deny Fisher an evidentiary hearing on the motion for new trial must be disregarded in light of allegations of sexual abuse. Issue six contends the trial court erred in denying an evidentiary hearing on Fisher's motion for new trial based on newly discovered evidence. Issue seven contends the case should be remanded to the trial court for a hearing on Fisher's motion for new trial.

Issues four through seven all claim that the trial court denied an evidentiary hearing on the motion for new trial. The record of the hearing shows that the trial court provided Fisher with an opportunity to present evidence and arguments in support of her motion. Therefore, she was not, as she argues, denied an evidentiary hearing on her motion for new trial.

Fisher's brief argues that Fisher's motion for new trial amply raised best interest issues that had to be addressed to satisfy constitutional and statutory standards. She argues that she showed that Senegal offered false or unfounded testimony during the trial and that the matters stated in Fisher's affidavits must be taken as true because Senegal filed no controverting affidavits to refute Fisher's claims. Fisher contends the trial court erred in refusing to hear her newly discovered evidence and further erred in holding her to a due diligence standard regarding her failure to present that evidence at trial.

The trial court conducted a hearing on Fisher's motion for new trial. Counsel for Fisher referred the trial court to records from the Department of Family and Protective Services. The records concerned the charges Fisher made against Senegal's daughter. Although Fisher was aware before trial that the Department had opened a case and conducted an investigation into an allegation of sexual abuse of J.M.W., counsel argued Fisher was not aware that records existed until the Department employee testified. Fisher also argued that her son's testimony was newly available because he was in school on the day of the trial. The son would have provided testimony about his grades to rebut the trial testimony regarding his disciplinary record. Fisher also argued that she could not have anticipated the need to produce a school district employee to testify that J.M.W. had been using his older sister's nap mat. Fisher also argued that her grandmother would testify that Fisher had not been evicted from one of the homes where Fisher used to live. Finally, Fisher argued that in a new trial her mother would testify that the child was with them on June 9 and that the child was with Senegal for only one weekend in August. This witness had testified at the trial.

On appeal, Fisher argues that the trial court erred in requiring diligence in obtaining witnesses and contends the trial court should have appointed an attorney for Fisher or for J.M.W. ⁽¹⁾ This is neither a case in which the Department of Family and Protective Services sought custody of the child, nor is it a case in which any party seeks to terminate Fisher's parental rights. Fisher was named a joint managing conservator of J.M.W. Even assuming indigence, the trial court is not required to appoint counsel to represent a parent in a private custody suit. See In the Interest of J.C., 250 S.W.3d 486, 489 (Tex. App.--Fort Worth 2008, pet. denied) (private termination). Even in a termination case in which an indigent parent has a right to appointment of counsel, the trial court does not abuse its discretion in failing to appoint counsel when it is not readily apparent that the parent is indigent and the parent does not request appointment of counsel. See In the Interest of G.K., No. 09-08-00506-CV, 2009 WL 2616926, at *4 (Tex. App.--Beaumont Aug. 27, 2009, no pet. h.) (mem. op.).

Fisher contends she could not have discovered the Department's record because such records are only available to an attorney. Department records may be obtained by court order. Tex. Fam. Code Ann. § 261.201(b) (Vernon Supp. 2009). Furthermore, the fact that there was an investigation was known to Fisher and she could have developed testimony through cross-examination of the Department employee who testified during the trial. Likewise, Fisher may not have anticipated that her second son's disciplinary history might come up in the trial, but she was aware that her fitness as a parent and her home environment would be issues in the hearing. Testimony that J.M.W.'s sister resides with Fisher had been offered in the trial and on cross-examination Senegal proved that the child's grandmother would claim the child as a dependent on her tax return for the current tax year. Thus, the trial court could have found that the allegedly newly discovered evidence was either known to Fisher before trial or would have been known to her in the exercise of reasonable diligence.

We review the denial of a motion for new trial for an abuse of discretion. In the Interest of R.R. & S.J.S., 209 S.W.3d 112, 114 (Tex. 2006). A party seeking a new trial on the ground of newly discovered evidence must show: (1) new evidence has come to her knowledge since the trial; (2) it was not owing to the want of due diligence that the evidence did not come to her knowledge sooner; (3) the evidence is not cumulative; and (4) the evidence is so material that it would probably produce a different result if a new trial were granted. Jackson v. Van Winkle, 660 S.W.2d 807, 809 (Tex. 1983), overruled on other grounds by Moritz v. Preiss, 121 S.W.3d 715 (Tex. 2003). The trial court expressed two main concerns during the hearing on Fisher's motion for new trial: her failure to establish that the evidence was not known to her at the time of trial, and her failure to show that certain documents could not have been discovered through the exercise of due diligence. Fisher argues that the trial court should have granted her motion for new trial notwithstanding her failure to establish diligence. The case on which she relies concerned a motion for new trial that contained affidavits that revealed the parent granted custody had a violent temper and had exerted harsh physical discipline on the children. See C_ v. C_, 534 S.W.2d 359, 361-62 (Tex. Civ. App.--Dallas 1976, writ dism'd w.o.j.). That court noted that "[n]o abuse of discretion is shown unless the evidence presented in support of the motion, and not offered at the original trial, strongly shows that the original custody order would have a seriously adverse effect on the interest and welfare of the children, and that presentation of such evidence at another trial would probably change the result." Id. at 362. Here, the evidence presented in the motion for new trial is not so extreme or compelling to remove the trial court's discretion in weighing the merits of the motion for new trial. We overrule issues three through seven.

Fisher groups issues eight through eleven. Issue eight contends the trial court violated Fisher's rights under the Fourteenth Amendment of the United States Constitution. Issue nine contends the trial court's failure to find Fisher unfit to act as a joint managing conservator precludes the trial court from granting a nonparent conservatorship rights. Issue ten contends the trial court applied Family Code Section 153.131 unconstitutionally by finding the parental presumption had been overcome. Issue eleven contends the trial court's finding that the appointment of the child's parents as joint managing conservators is not in the best interest of the child conflicts with the trial court's conclusion that the conservatorship ordered in the decree is in the best interest of the child.

Fisher argues that the constitutional right of a parent to direct her child's upbringing prohibits the trial court from awarding the right to determine the child's primary residence to Senegal, notwithstanding the trial court's finding of fact that J.M.W.'s current environment with Fisher would significantly impair the physical health or emotional development of J.M.W. Fisher argues this factual finding is not sufficient to overcome the presumption expressed in Troxel. See Troxel, 530 U.S. at 68 ("[T]here is a presumption that fit parents act in the best interests of their children."). Although it was contested at trial, the record contains evidence that Fisher did not adequately care for J.M.W. and instead left him with Senegal for a period in excess of one year. Family Code Section 153.373 acknowledges that under appropriate circumstances voluntary relinquishment for a period of one year or more rebuts the parental presumption. See Tex. Fam. Code Ann. § 153.373. Unlike the statute in Troxel, Section 153.373 applies only in a situation in which the parent has voluntarily relinquished her right of control over the child to a nonparent for a substantial enough period of time to impact the child's physical health and emotional wellbeing.

In Quilloin v. Walcott, the United States Supreme Court considered a biological father's due process challenge to a husband's petition to adopt his wife's eleven-year-old child. Quilloin v. Walcott, 434 U.S. 246, 248, 98 S.Ct. 549, 54 L.Ed.2d 511 (1978). The biological father had contact with the child and was subject to essentially the same child support obligation as a married father would have been, but he had never petitioned to legitimize the child. Id. at 249, 256. Noting that the biological father had never shouldered any significant responsibility with respect to the daily supervision of the child and that the child was remaining in a family unit already in existence, the Supreme Court held that the biological father's substantive due process rights were not violated by a "best interests of the child" test. Id. at 254-56. Although Quilloin concerned a longer period of time than what is involved in this case, it also concerned a more significant loss of parental rights. Id. at 255. Here, the intrusion on the parent's rights, although significant, is justified because the parent voluntarily relinquished her rights to the petitioner for a considerable period of time.

In this case, the statute describes the particular special circumstances justifying interference with the parent's custodial rights. That circumstance, the voluntary relinquishment of the care, control and possession of the child to a nonparent for a period of a least one year, limits the exercise of the power granted by the statute to circumstances in which the child's physical and emotional wellbeing is likely to be affected. Additionally, for the statute to be applicable to a particular case, the trial court must also find that appointment of a nonparent as a conservator is in the best interest of the child. See Tex. Fam. Code Ann. § 153.373(2). Furthermore, the statute does not do more than rebut the presumption found in Family Code Section 153.131. See Tex. Fam. Code Ann. § 153.131. In this case, both parents are joint managing conservators along with the nonparent to whom the parent voluntarily relinquished the actual care, control, and possession of the child for a period of one year or more. Under these circumstances, Fisher has not shown a violation of her substantive due process rights.

Fisher contends that the trial court entered contradictory findings. The trial court found that the appointment of the child's parents as joint managing conservators would not be in the child's best interest, and also expressly found that the child's current environment with Fisher would significantly impair the child's physical health and/or emotional development. We understand that the trial court was attempting to distinguish the findings related to whether one or both parents should be appointed as sole or joint managing conservators to the exclusion of the petitioner from the findings regarding whether the parents and Senegal should be appointed joint managing conservators with Senegal having the right to designate the child's primary residence. The trial court's decision that it would not be in the child's best interest to primarily reside with Fisher is not inconsistent with the trial court's decision to allow Fisher to be a managing conservator. The Family Code permits such an arrangement. See Tex. Fam. Code Ann. § 153.372(a) ("[a] nonparent . . . appointed as a joint managing conservator may serve in that capacity with either another nonparent or with a parent of the child."). We overrule issues eight through eleven.

Fisher challenges Senegal's standing to file a petition in Fisher's grouped issues twelve through fourteen. Issue twelve contends Senegal did not have actual care, control, and possession of the child during the ninety-one-day period before the suit commenced. Issue thirteen contends that because standing affects the trial court's jurisdiction, the trial court abused its discretion in failing to grant Fisher's motion for new trial. Issue thirteen contends Senegal never conclusively proved she had standing to file suit. The record shows that the trial court heard evidence on and determined the petitioner's standing in the temporary hearing, heard evidence relating to standing during the trial, and considered evidence controverting the claim of standing in the hearing on the motion for new trial.

Senegal alleged standing to file an original suit as "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition[.]" Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008). The trial court made an inquiry regarding Senegal's standing in the temporary hearing conducted shortly after Senegal filed suit. Senegal testified that she first began taking care of J.M.W. when Senegal's niece asked her if she could help with J.M.W.'s care on weekends. At that time, Fisher's daughter was living with Fisher's mother and the two teenaged boys were self sufficient. Senegal had J.M.W. during the Hurricane Rita evacuation of September 2005. Senegal returned J.M.W. to Fisher after they returned to Texas. Senegal had J.M.W. again in December 2005 when family photographs were taken. Senegal offered to dress J.M.W. like Fisher's other children, but Fisher said that J.M.W. was already having his picture taken with Senegal's daughter, so there was no need to photograph J.M.W. with Fisher's other children. Senegal understood this to mean that Fisher was including J.M.W. in Senegal's family and excluding him from Fisher's. In August 2006, Fisher signed a document that stated that she was giving Senegal "consent to make any and all decisions concerning [J.M.W.'s] care." In the document, Fisher referred to Senegal as the child's "godmother and caregiver." Senegal claimed they had arranged for Senegal to be the child's primary caregiver. Senegal enrolled the child in daycare. The registration is dated August 27, 2007. Except for a month or two paid by Fisher, Senegal paid for the child to attend daycare. Fisher's other children had insurance through her employer, but Fisher did not enroll J.M.W. Senegal claimed Fisher told her all the children except J.M.W. had insurance. Senegal testified that she would decide when J.M.W. needed to go to the doctor, although Fisher had to take him. Senegal paid the child's medical bills. J.M.W. was hospitalized in March 2007. Fisher and Senegal's mother stayed with J.M.W. while Senegal was at work. J.M.W. went home with Fisher on his release from the hospital. According to Senegal, Fisher did not fill the child's medication and failed to take the child to his follow-up appointment. J.M.W. stayed with Fisher for five days, then Fisher returned the child to Senegal. Senegal claimed that Fisher had no contact with the child for four more months. The two women were working together and Fisher developed "problems at work" that she thought somehow involved Senegal. Accompanied by police officers, Fisher picked up the child from Senegal on August 10, 2007. Fisher kept J.M.W. for a week, then returned him to Senegal. On August 27, 2007, Fisher once again took back J.M.W.

The trial court questioned Fisher during the temporary hearing. Fisher agreed that J.M.W. was enrolled in the daycare in August 2006. Fisher claimed that from August 2006 through December 2006, the child stayed with Senegal during the week and Fisher picked up the child on weekends. Fisher testified she had J.M.W. for more than five days after he was released from the hospital. She also denied that she failed to contact J.M.W. until August 10. Fisher also claimed she reimbursed Senegal for the daycare expenses. According to Fisher, at the time of the hearing, the father of her youngest child was keeping that child but she would see him on a daily basis. On the morning of the hearing, Fisher picked up J.M.W. and his sister at Fisher's mother's home and took them to school. Five days a week, the children were with Fisher for one-and-one-half hours of the day. The trial court included a finding of jurisdiction in its temporary orders.

During the trial, Senegal testified that she and Fisher decided J.M.W. would live with Senegal and the child lived with her for two years, Senegal enrolled the child in daycare and paid for the service, and the child attended the daycare from August 2006 through June 2007. Fisher claimed that the child's absences in the school year that started August 27, 2007, were due to Senegal failing to take the child to school, and Fisher admitted that Senegal was keeping J.M.W. at that time.

During the hearing on the motion for new trial, Fisher's counsel referred the trial court to an affidavit from Fisher's mother. The affidavit states that the child has never stayed away from home or out of contact with Fisher for any long period of time. The affidavit also states that the child accompanied Fisher and Fisher's other children on trips to Houston on two occasions in 2007. The affiant states that the child sometimes spent the night with Senegal at Senegal's request, but the child never stayed away from his mother continuously for six months.

The motion for new trial also contains an affidavit from Fisher. In this affidavit, Fisher states that the child was in the hospital from March 30, 2007, until April 5, 2007, and that upon his release he came to Fisher's home and bonded with his siblings and grandparents. The affidavit states that J.M.W. remained with Fisher for the rest of 2007.

A determination of standing pursuant to Section 102.003(a)(9) does not require a "mechanistic" application. Jones v. Fowler, 969 S.W.2d 429, 433 (Tex. 1998). To establish standing to file an original suit, the six-month period of actual care, control, and possession must have ended within ninety days of commencement of the suit. Id. at 432-33. "In computing the time necessary for standing under [Family Code Section 102.003(a)(9)], the court may not require that the time be continuous and uninterrupted but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit." Tex. Fam. Code Ann. § 102.003(b).

Standing is a question of law that we review de novo. See In re Smith, 262 S.W.3d 463, 465 (Tex. App.--Beaumont 2008, orig. proceeding [mand. denied]). The factual findings made by the trial court are reviewable for legal and factual sufficiency. See generally In the Interest of M.P.B., 257 S.W.3d 804, 808 (Tex. App.--Dallas 2008, no pet.). In determining the principal residence of the child for a six-month period of time ending in the ninety-day period immediately preceding the commencement of suit, courts consider: (1) whether the child has a fixed place of abode in the possession of the petitioner; (2) that is occupied or intended to be occupied by the child consistently over a substantial period of time; and (3) which is permanent rather than temporary. Id. at 809; In the Interest of S.D. & K.D., 980 S.W.2d 758, 760 (Tex. App.--San Antonio 1998, pet. denied).

Fisher argues that the affidavits attached to her motion for new trial must be taken as true because they were not controverted by Senegal. She relies on a case in which a party affected by a default judgment established that the party's failure to answer was neither intentional nor the result of conscious indifference. See Healy v. Wick Bldg. Sys., Inc., 560 S.W.2d 713, 721 (Tex. Civ. App.--Dallas 1977, writ ref'd n.r.e.) (op. on reh'g). This is not a default judgment in which the party failed to answer but explained the default through uncontroverted evidence in the motion for new trial. Here, the motion for new trial concerned the merits of the case, and the evidence from the pre-trial hearing and the trial controverted the evidence offered in the motion for new trial.

The trial court heard testimony and considered disputed evidence regarding the extent and length of time that Senegal possessed J.M.W. From the record as a whole, the trial court could find that the child maintained a fixed place of abode with Senegal from August 2006 until August 2007, that the child occupied Senegal's residence consistently over that period of time, and that the living arrangement was permanent rather than temporary. Although the evidence was disputed, the trial court could resolve the credibility issues in favor of Senegal and against Fisher and Fisher's mother. Thus, the trial court could in its discretion rule that the child maintained its principal residence with Senegal for six consecutive months that ended within ninety days of the date on which Senegal filed her petition (September 14, 2007). We overrule issues twelve through fourteen.

Issues fifteen and sixteen complain that the trial court erred in entering orders that separate J.M.W. from his siblings. Issue fifteen contends the trial court abused its discretion by awarding the right to establish J.M.W.'s primary residence to Senegal and thereby splitting J.M.W. from his siblings. Issue sixteen contends the trial court abused its discretion by not deviating from the standard possession order to provide more time with J.M.W.'s siblings.

During the hearing on the motion to enter judgment, the only complaint raised by Fisher regarding the standard possession order concerned the failure to give J.M.W.'s father visitation on Father's Day. Although the policy argument against dividing custody of siblings was mentioned in the motion for new trial, it was not mentioned during the hearing on the motion for new trial. In the motion for new trial, Fisher bases her argument on Family Code Section 153.251(c). See Tex. Fam. Code Ann. § 153.251(c) ("It is preferable for all children in a family to be together during periods of possession."). There was evidence that two of Fisher's other children did not reside with her. The evidence was that two of the children did live with her. There was no evidence that any of these children were subject to a possession order that would have that child residing with the child's other parent during Fisher's period of possession with J.M.W. Accordingly, the trial court did not abuse its discretion by failing to adjust the standard possession order to accommodate a pre-existing order.

Although she did not raise the issue during the hearing on her motion for new trial, Fisher's motion for new trial also argues that custody of siblings of a marriage should not be divided except for clear and compelling reasons. See, e.g., Zuniga v. Zuniga, 664 S.W.2d 810, 812 (Tex. App.--Corpus Christi 1984, no writ). Keeping siblings in the same household is a factor the trial court considers in determining the best interest of the child. Gardner, 229 S.W.3d at 754. In this case, however, the trial court heard evidence that J.M.W. was not living with Fisher's other children. Furthermore, none of the other children shared the same father as J.M.W. The policy of keeping the children of a marriage together does not apply to half-siblings. In the Interest of K.L.R., 162 S.W.3d 291, 306 (Tex. App.--Tyler 2005, no pet.); In the Interest of Hidalgo, 938 S.W.2d 492, 497-98 (Tex. App.--Texarkana 1996, no writ).

Although the evidence is disputed, there is evidence in the record from which the trial court could find that Fisher voluntarily separated J.M.W.'s primary residence from that of her other children for at least one year. The public policy encouraging keeping siblings together is not offended by the separation of siblings when the parents voluntarily separate their children for a substantial period of time, permit a child to form familial relationships with nonparents and their children, and fail to support the child. R_ S_ & J_ S_ v. B_ J_ J_ & B_ C_ J_, 883 S.W.2d 711, 720 (Tex. App.--Dallas 1994, no writ). In this case, J.M.W. did form relationships with his half-siblings, particularly his half-sister, but the evidence does not show that J.M.W. would be living with his half-sister if Fisher obtained the right to establish J.M.W.'s primary residence. Under the record in this case, we cannot say that the trial court abused its discretion either by allowing Senegal to determine J.M.W.'s primary residence or by entering a standard possession order. We overrule issues fifteen and sixteen.

In her seventeenth and eighteenth issues, Fisher complains about Senegal's pleadings. Issue seventeen complains that Senegal's pleadings do not allege that naming Fisher as the joint managing conservator with the right to designate the child's primary residence would significantly impair the child's physical health or emotional development. Issue eighteen contends that Senegal's failure to plead that Fisher would significantly impair J.M.W.'s physical health or emotional development deprived Fisher of fair notice of the grounds for Senegal's petition. Fisher did not file special exceptions.

A pleading that sets forth a claim for relief must contain "a short statement of the cause of action sufficient to give fair notice of the claim involved[.]" Tex. R. Civ. P. 47(a). In the absence of special exceptions, the petition is construed liberally in favor of the pleader. Boyles v. Kerr, 855 S.W.2d 593, 601 (Tex. 1993). We uphold a petition as to a cause of action if it can be reasonably inferred from what is specifically stated, even if an element of the cause of action is not specifically alleged. Id. "[C]ourts assess the sufficiency of pleadings by determining whether an opposing party can ascertain from the pleading the nature, basic issues, and the type of evidence that might be relevant to the controversy." Low v. Henry, 221 S.W.3d 609, 612 (Tex. 2007). Particularly in child custody suits, the trial court possesses broad, equitable powers to determine what is in the best interest of the child. See Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) ("[A] suit properly invoking the jurisdiction of a court with respect to custody and control of a minor child vests that court with decretal powers in all relevant custody, control, possession and visitation matters involving the child."); Peck v. Peck, 172 S.W.3d 26, 35 (Tex. App.--Dallas 2005, pet. denied) ("[T]he trial court has discretion to place conditions on parents' visitation even if the pleadings do not request such conditions.").

Senegal's petition alleges that it would not be in the best interest of the child to appoint the child's parents as joint managing conservators and that it would be in the best interest of the child to appoint Senegal as the child's sole managing conservator. An affidavit attached to the petition claims that Fisher periodically visited the child for short periods of time and that the child considers Senegal's home to be his residence. The same affidavit describes specific facts that the affiant claims demonstrate why Fisher's home would not be a proper environment for the child. The affiant goes on to say "[t]he only chance [J.M.W.] has of having a normal, healthy and wholesome life is if he remains under my care and custody." The original petition filed in this suit adequately warned Fisher that Senegal was seeking custody of J.M.W., and also adequately warned Fisher both why the petitioner was seeking custody and identified the reason why the trial court should grant relief. We overrule issues seventeen and eighteen.

Issue nineteen contends the judgment must be reversed because the trial court's findings of fact and conclusions of law were made by a preponderance of the evidence standard rather than a heightened standard of proof subject to heightened appellate scrutiny. Fisher argues that the Family Code provides that the trial court's findings are based on a preponderance of the evidence and the trial court did not identify a higher standard in its findings of fact and conclusions of law, and the trial court therefore failed to apply the heightened standard required by Troxel. Compare Troxel, 530 U.S. at 69-70 ("The problem here is not that the [trial court] intervened, but that when it did so, it gave no special weight at all to [the mother's] determination of her daughters' best interests. . . . And, if a fit parent's decision of the kind at issue here becomes subject to judicial review, the court must accord at least some special weight to the parent's own determination."), with Tex. Fam. Code Ann. § 105.005 (Vernon 2008) ("Except as otherwise provided by this title, the court's findings shall be based on a preponderance of the evidence.").

In 1990, the Texas Supreme Court held that "the nonparent must affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally." Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). Although Lewelling predates both the recodification of Chapter 14 of the Family Code and Troxel, in 2007 the Texas Supreme Court again recognized that "the quantum of proof required to support a termination decision differs from the level necessary to support a conservatorship appointment." In the Interest of J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). J.A.J. was a termination case in which the intermediate appellate court reversed the judgment as to both the termination of the mother's rights and as to the appointment of the Department as sole managing conservator. Id. at 612. The Supreme Court held that the reversal of the termination judgment did not affect the conservatorship appointment absent assigned error. Id. at 613. In its analysis, the Supreme Court recognized the distinction between termination and conservatorship proceedings. Id. at 616.

Due process compels this heightened standard because terminating the parent-child relationship imposes permanent, irrevocable consequences. On the other hand, a finding that appointment of a parent as managing conservator would significantly impair the child's physical health or emotional development is governed by a preponderance-of-the-evidence standard. These differing proof standards, in turn, affect the method of appellate review, which is more stringent for termination decisions than for those regarding conservatorship. Id. (citations omitted).

Thus, it appears the preponderance of the evidence standard applies to conservatorship proceedings. See Tex. Fam. Code Ann. § 105.005. Accordingly, the trial court did not err in failing to identify a higher standard in its findings of fact and conclusions of law. We overrule issue nineteen and affirm the judgment.

AFFIRMED.

_____________________________

STEVE McKEITHEN

Chief Justice

Submitted on September 29, 2009

Opinion Delivered March 11, 2010

Before McKeithen, C.J., Kreger and Horton, JJ.

1. We find no indication in the record that Fisher claimed indigence before trial. Retained counsel filed the motion for new trial.