NUMBER 13-22-00219-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF K.L.C., A CHILD
On appeal from the 105th District Court of Nueces County, Texas.
OPINION
Before Justices Tijerina, Silva, and Peña Opinion by Justice Silva
This appeal arises out of a trial court’s final order on a petition to modify the parent-
child relationship for the minor child Kaylee. 1 By two issues, Quincy, Kaylee’s father,
argues: (1) Martin, Kaylee’s grandfather, lacked standing to file the petition to modify; and
(2) there was insufficient evidence to overcome the fit-parent presumption that Quincy is
able to act in Kaylee’s best interest. We reverse and remand.
1We refer to the parties and child by aliases in accordance with the rules of appellate procedure. See TEX. R. APP. P. 9.8(b)(2), cmt. I. BACKGROUND
A. Procedural Background
On April 17, 2014, the trial court entered an agreed order in a suit affecting the
parent-child relationship (SAPCR) that appointed Quincy and Kelly, Kaylee’s mother, as
joint managing conservators of Kaylee. The order established child and medical support
obligations for Quincy and a standard possession order over Kaylee. See TEX. FAM. CODE
ANN. § 153.312 (establishing a standard possession order for parents who reside less
than 100 miles apart). Kelly was provided the exclusive right to designate Kaylee’s
primary residence without geographic restriction.
On February 19, 2016, Quincy filed a petition to modify the parent-child
relationship. Kelly filed her answer on March 28, 2016. The trial court ordered the parties
to mediation on April 13, 2016. Quincy and Kelly signed a mediated settlement agreement
on May 18, 2016. On July 12, 2016, the trial court entered the first agreed order modifying
the parent-child relationship, which established a modified possession order over Kaylee.
According to the order, Kelly would have possession of Kaylee every Monday and
Tuesday, Quincy would have possession every Wednesday and Thursday, and the
parties would alternate possession every Friday, Saturday, and Sunday. The order also
terminated Quincy’s child support obligation.
On February 19, 2018, Martin filed a petition in intervention seeking sole or joint
managing conservatorship of Kaylee, alleging that Quincy and Kelly “engaged in a history
or pattern of child neglect.” On October 5, 2018, the trial court entered a second order
2 modifying the parent-child relationship, 2 which appointed Quincy, Kelly, and Martin as
joint managing conservators over Kaylee. Martin was provided the exclusive right to
designate Kaylee’s residence, subject to a one-year probationary period wherein Kelly
would take over that right if she complied with certain conditions. 3 The order purported to
provide Quincy with the same possession and access schedule as the July 12, 2016
order, but provided Martin with possession on the first and third Sunday between 12:00
p.m. and 6:00 p.m. Quincy was able to override Martin’s Sunday possession if he provided
two-weeks’ written notice. Kelly was provided the right to possession of Kaylee at all times
not specifically designated for Quincy. The order did not include a finding that either Kelly
or Quincy were unfit parents.
On September 25, 2020, Martin filed another petition to modify the parent-child
relationship. Martin filed his first amended petition to modify three days later. The first
amended petition requested the following changes:
• Martin be appointed as the person with the exclusive right to designate Kaylee’s
residence without regard to geographic restriction;
• Martin have the exclusive right to make educational, medical, and psychological
decisions for Kaylee;
• Kelly and Quincy’s periods of possession be supervised and “only be exercised in
the county in which [Kaylee] resides at any given time”; and
2 The order was titled “Agreed Final Order in Suit to Modify Parent-Child Relationship,” but noted
that Quincy failed to appear, and he did not sign the order. 3As we discuss in more detail in the factual background, Martin returned Kaylee to Kelly about three months after the order was entered.
3 • “Respondent” be ordered to pay child support.
Quincy filed a general denial. In October 2020, the parties entered into a mediated
settlement agreement for temporary orders wherein Kaylee would reside with Martin and
Quincy would have a modified possession order, providing him periods of possession of
Kaylee every second and fourth weekend, certain holidays, and forty-two days during
Kaylee’s summer break. Kelly was only provided specific possession of Kaylee for
Mother’s Day weekend. The trial court appointed an amicus attorney “to assist the [trial
court] in protecting the best interests of the child.”
Trial proceeded on November 8, 2021, via Zoom. On April 26, 2022, the trial court
entered a final order that found both Quincy and Kelly to be unfit parents, but nonetheless
appointed Martin and Quincy as joint managing conservators over Kaylee. Although the
order did not specifically state what conservatorship, if any, Kelly was appointed as, she
was subsequently referred to as a joint managing conservator in the order when
identifying her rights and duties. Martin was provided the exclusive right to designate
Kaylee’s residence without regard to geographic restriction. Quincy was provided a
standard possession order while Kelly was provided three hours of supervised visitation
on each Saturday that Martin has possession of Kaylee. Neither parent was ordered to
provide child support, but Quincy was ordered to reimburse the State for Kaylee’s state-
provided medical and dental insurance. It is from this order that Quincy appeals. 4
4We note that two exhibits offered by Martin and admitted by the trial court are not included in the court reporter’s record. We requested that the reporter supplement the record with the exhibits, but she notified this Court that the exhibits were never provided to her as the trial occurred over Zoom. The reporter was unsuccessful in obtaining additional copies; accordingly, we abated the appeal for the trial court to make findings pursuant to Texas Rule of Appellate Procedure 34.6(f). See TEX. R. APP. P. 34.6(f). In response, Quincy filed a motion asking this Court to consider the matter with the record before us so that his right to appeal is not prejudiced by Martin’s failure to ensure the exhibits were properly admitted and 4 B. Factual Background
At trial, three witnesses testified: Martin, Quincy, and Quincy’s mother
(Grandmother). 5 Below is a summary of each witnesses’ relevant testimony.
1. Martin
Martin testified that he lives in a home with his common-law wife and Kaylee in
Ingleside, Texas. Martin explained that he became Kaylee’s primary caregiver because
Kelly “wasn’t capable at the time” and Quincy “said he didn’t want her, he couldn’t afford
her.” Martin elaborated that Kelly was using illegal substances and needed to get clean
and sober before she could care for Kaylee. Martin stated that he allowed Kaylee to move
back with Kelly three months after the October 2018 order because Kelly completed drug
rehabilitation, got married, had another child, and was overall doing better. However, at
time of trial, Martin did not believe Kelly was capable of taking care of Kaylee, alluding to
current drug use and untreated mental health disorders.
Regarding Quincy, Martin testified that he resides in “a rundown dilapidated
shack,” but acknowledged he had not seen the inside of the home. 6 Martin described
Quincy as immature, explaining that Quincy uses a lot of profanity, throws “temper
tantrums,” and has not “step[ped] up and be[en] a father and do what he’s supposed to
filed. Having received no response from the trial court for thirty days, we granted Quincy’s motion to consider the matter with the record before us and reinstated the appeal. See id. 5 Although Kelly appeared and participated in the trial pro se, when she asked to call a witness, the trial court denied her the ability to do so. 6 During trial, Martin, presumably showing a photo to the amicus attorney, asked, “Can you see that?” When the amicus attorney answered affirmatively, Martin then said, “That’s his home. Do you see— do you see how it’s dilapidated and falling apart?” However, no photos of the home were offered or admitted into the record. Later, during Quincy’s testimony, he used his computer to show the trial court Kaylee’s room at the request of the amicus attorney, but again no photos or other exhibits were admitted.
5 do.” According to Martin, Quincy called or texted to check on Kaylee only twice since the
temporary orders, both times “in the very beginning.” However, Martin agreed that since
the mediated settlement agreement, Quincy only missed some visits in October 2021
because Martin and his wife contracted COVID-19. Martin expressed dissatisfaction that
Quincy did not call or message to check on Kaylee when they had COVID-19.
Martin described an event wherein Quincy brought his other daughter to Martin’s
home and “his then three-year-old [daughter] was allowed to run rampant in the house,
completely tearing the house apart, throwing things everywhere, beating on things.” At
some point, Martin heard a scream and noted that Quincy did not get up to check on his
daughter, who had fallen down the stairs.
Martin testified that after Kaylee returned to him from a forty-two-day visit with
Quincy, he had “a really difficult time with her.” 7 Because of that, he reached out to
Quincy’s mother for help. Martin was questioned if he asked Grandmother to take Kaylee
indefinitely, but he denied doing so.
2. Quincy
Quincy moved to Waco nearly three years before trial; prior to that he had lived in
Ingleside and Aransas Pass. At the time of trial, Quincy was employed full time
supervising the powder coating shop for a “middle-sized” company, earning $20 per hour.
Quincy testified that the photo depicting his allegedly dilapidated home was actually a
photo of where he works, which is next door to his home. Quincy’s work schedule would
allow him to drop off and pick up Kaylee for school every day and enroll her in after-school
7 Martin did not elaborate on what he meant by having a “really difficult time” with Kaylee.
6 programs, if necessary. Quincy denied that his home was in poor condition but explained
that he was in the process of having another home prepared for him to live in that had
four bedrooms.
Quincy described his relationship with Kaylee as “very good,” explaining that they
“are very close, and . . . always had a pretty close relationship throughout her whole life.”
However, when Quincy first moved to Waco, Grandmother “shared [his] side of the
custody and helped [him] out there, so [he] still stayed in contact with [Kaylee] quite a bit
through [Grandmother].” Quincy continued to visit “for every birthday and all
Christmases.” Quincy asserted that he had not been involved in Kaylee’s education or
medical care because Martin refused to give him any information, including which school
she attended or physician she saw. According to Quincy, Martin would not communicate
with him, only with Grandmother.
Quincy agreed that since the temporary order was entered, he exercised every
visitation except when Martin and his wife had COVID-19 in October 2021. Quincy
recalled that his forty-two-day visit with Kaylee “started out extremely rough” but that “it
ended really well.” Quincy explained that when he, Kaylee, and his other daughter
returned home from a water park, law enforcement was waiting for him because Martin
called complaining that Quincy did not allow Kaylee to talk to Martin on the phone that
day. Quincy testified that, Kaylee did not respond well to the incident, causing her to
struggle with sleep and wet the bed the night law enforcement was called. Quincy further
stated that Kaylee has expressed the desire to live with him instead of Martin and often
cries when leaving Quincy’s home to return to Martin.
7 Although Quincy believes it is important for Kaylee to have a relationship with her
mother, he expressed that any visitation between the two should be supervised and that
Kelly would need to demonstrate her sobriety through drug testing. Quincy is also the
primary caregiver for his other daughter, who was four years old at the time of trial. Each
daughter would have their own bedroom if Kaylee lived with him.
3. Grandmother
Grandmother testified that she had been extensively involved in Kaylee’s life,
including having possession of her every Tuesday evening into Wednesday and Saturday
afternoon through Sunday during the 2018 order. More recently, Grandmother would
transport Kaylee to and from her visits with Quincy, sometimes all the way while other
times only meeting halfway. Grandmother confirmed that when she was in possession of
Kaylee, Quincy would call or video chat with Kaylee regularly. According to Grandmother,
Quincy and Kaylee have a positive relationship. Grandmother described Quincy as a
good father.
II. STANDING
By his first issue, Quincy challenges Martin’s standing to bring a suit to modify the
parent-child relationship.
A. Applicable Law and Standard of Review
“[S]tanding involves a threshold determination of whether a [party] has a sufficient
‘justiciable interest’ in the suit’s outcome to be entitled to a judicial determination.” In re
H.S., 550 S.W.3d 151, 155 (Tex. 2018). Standing in a SAPCR is governed by the Texas
8 Family Code. 8 Id. Standing to file an initial suit is generally governed by § 102.003(a),
which lists fifteen scenarios in which a person would have standing to file an original
SAPCR. TEX. FAM. CODE ANN. § 102.003(a). In addition, the family code sets out a
scenario where a grandparent or other person would have standing to file an original
SAPCR or intervene in an already-pending one. See id. § 102.004.
However, the family code provides additional standing provisions specific to suits
to modify a SAPCR. Relevant here, “[a] party affected by an order may file a suit for
modification in the court with continuing, exclusive jurisdiction.” Id. § 156.002(a). “[A] party
‘affected by’ [an] order” encompasses an individual who was previously granted visitation
rights, including intervenors to the original suit. Moreno v. Perez, 363 S.W.3d 725, 744
(Tex. App.—Houston [1st Dist.] 2011, no pet.); In re S.A.M., 321 S.W.3d 785, 789–90
(Tex. App.—Houston [14th Dist.] 2010, no pet.) (concluding that “party” as used in
§ 156.002(a) “requires that the person have been a party to the order that the person
seeks to modify”).
“Standing, like other issues implicating a court’s subject matter jurisdiction, is a
question of law that we review de novo.” In re H.S., 550 S.W.3d at 155. “Because standing
to bring a SAPCR is governed by statute, we apply statutory-interpretation principles in
determining whether a plaintiff falls within the category of persons upon whom such
standing has been conferred.” Id.
B. Analysis
Quincy argues that the only possible provisions that would provide standing to
8 SAPCRs include both original suits and modifications.
9 Martin are § 102.003(a)(9) or § 102.004(a)(1). See TEX. FAM. CODE ANN. §§ 102.003(a)(9)
(providing standing for a person who as had actual, care, control, and custody of a child
for at least six months), 102.004(a)(1) (providing standing for a relative within the third
degree of consanguinity if the child’s circumstances would significantly impair their
physical health or emotional development). Further, Quincy asserts that Martin failed to
present evidence meeting the requirements of either statute. However, both
§§ 102.003(a)(9) and 102.004(a)(1) relate to standing to file an original suit, whereas the
petition before the court was a suit to modify. See id. §§ 102.003(a)(9), 102.004(a)(1).
Thus, the appropriate section to apply would be § 156.002(a). See id. § 156.002(a).
Quincy does not argue that Martin was not a party to the previous order and any such
argument would be quickly overcome by a review of the record. Martin was appointed as
Kaylee’s joint managing conservator in the 2018 order—the order sought to be modified.
See Moreno, 363 S.W.3d at 744; In re S.A.M., 321 S.W.3d at 789–90. Accordingly, we
conclude that Martin had standing to seek a modification to the 2018 order. Quincy’s first
issue is overruled.
III. FIT-PARENT PRESUMPTION
By his second issue, Quincy argues that Martin failed to present sufficient evidence
to overcome the fit-parent presumption.
A. Applicable Law
The fit-parent presumption is a Constitutional protection of a parent’s fundamental
right to make decisions concerning the care, custody, and control of their child. In re
C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (citing Troxel v. Granville, 530 U.S. 57, 66
10 (2000) (plurality opinion)); see TEX. FAM. CODE ANN. § 153.131(b) (creating “a rebuttable
presumption that the appointment of the parents of a child as joint managing conservators
is in the best interest of the child”). “Accordingly, ‘the custody, care and nurture of the
child reside first in the parents, whose primary function and freedom include preparation
for obligations the state can neither supply nor hinder.’” In re C.J.C., 603 S.W.3d at 812
(quoting Stanley v. Illinois, 405 U.S. 645, 651 (1972)). In other words, absent a showing
that a parent is unfit, a court may not enter an order interfering with that parent’s right to
care, control, or custody of their child in favor of a nonparent. See id. at 811–14. In 2020,
the Texas Supreme Court concluded that the fit-parent presumption applies equally to
modification proceedings. Id. at 818–19. The presumption applies in any modification
where a parent was named as a managing conservator of the child. In re B.B., 632 S.W.3d
136, 139 (Tex. App.—El Paso 2021, no pet.) (citing In re C.J.C., 603 S.W.3d at 819).
Generally, to overcome the fit-parent presumption, a nonparent must prove “‘at a
minimum’ that the physical health or emotional well-being of the child . . . would be
significantly impaired if the nonparent were not granted custody.” In re J.O.L., 2023 WL
2290300, at *4 (Tex. App.—San Antonio March 1, 2023, pet. filed) (quoting In re N.H.,
652 S.W.3d 488, 497 (Tex. App.—Houston [14th Dist.] 2022, pet. filed)); see also In re
D.D.L., No. 13-22-00062-CV, 2022 WL 3652496, at *4 (Tex. App.—Corpus Christi–
Edinburg Aug. 25, 2022, no pet.) (mem. op.) (requiring evidence of specific identifiable
behavior or conduct that will probably result in significant impairment to the child’s
physical health or emotional well-being). Such identifiable behavior or conduct may
include “[p]hysical abuse, severe neglect, abandonment, drug or alcohol abuse, or
11 immoral behavior on the part of the parent.” Rolle v. Hardy, 527 S.W.3d 405, 420 (Tex.
App.—Houston [1st Dist.] 2017, no pet.).
“A nonparent cannot meet his burden by evidence showing that he would be a
better custodian of the child[], that he has a strong and on-going relationship with the
child[], or that the parent would not have been a proper custodian in the past.” Id.; see
Troxel, 530 U.S. at 72–73 (“[T]he Due Process Clause does not permit a State to infringe
on the fundamental right of parents to make child[-]rearing decisions simply because a
state judge believes a ‘better’ decision could be made.”). “‘[L]ingering sadness’ from lack
of contact with [a] grandparent[] [does] not sufficiently demonstrate significant harm to [a]
child[] . . . .” In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010). Nor do frequent visits
between grandparents and grandchildren, a grandparent’s attendance at the children’s
school activities or other events, or the children saying they miss the grandparents and
want visitation. In re J.M.G., 553 S.W.3d 137, 143 (Tex. App.—El Paso 2018, orig.
proceeding); see In re H.L., 613 S.W.3d 722, 726–27 (Tex. App.—Fort Worth, 2020, no
pet.).
B. Standard of Review
“We review a trial court’s order regarding child custody, control, possession, and
visitation for an abuse of discretion.” In re H.N.T., 367 S.W.3d 901, 903 (Tex. App.—
Dallas 2012, no pet.); see also Ruiz v. Norris, No. 13-17-00032-CV, 2018 WL 5987165,
at *3 (Tex. App.—Corpus Christi–Edinburg Nov. 15, 2018, no pet.) (mem. op.). “A trial
court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any
guiding rules or principles.” In re H.D.C., 474 S.W.3d 758, 763 (Tex. App.—Houston [14th
12 Dist.] 2014, no pet.). Legal and factual sufficiency are not independent grounds of error
in a child custody order but are relevant factors in determining whether the trial court
abused its discretion. Id. If there is some evidence of a substantive and probative
character that supports the trial court’s order, then there is no abuse of discretion. Id.
When reviewing a legal sufficiency or no-evidence challenge, we should sustain
the challenge if the record shows: (1) the complete absence of a vital fact, (2) the court is
barred by rules of law or evidence from giving weight to the only evidence offered to prove
a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or
(4) the evidence establishes conclusively the opposite of the vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005); see also In re V.N.S., No. 13-07-00046-CV,
2008 WL 2744659, at *3 (Tex. App.—Corpus Christi–Edinburg July 3, 2008, no pet.)
(mem. op.). “To assess factual insufficiency, we look at whether the trial court’s finding is
‘so against the great weight and preponderance of the evidence as to be manifestly
wrong.’” In re E.S.S., 658 S.W.3d 613, 616 (Tex. App.—El Paso 2022, no pet.) (quoting
Wheeling v. Wheeling, 546 S.W.3d 216, 223 (Tex. App.—El Paso 2017, no pet.)).
When the trial court has not entered findings of fact, such as here, we imply all
findings necessary to support the judgment if they are supported by the evidence. Rourk
v. Cameron Appraisal Dist., 305 S.W.3d 231, 234 (Tex. App.—Corpus Christi–Edinburg
2009, no pet.)
C. Analysis
Because Quincy had previously been appointed a joint managing conservator and
had not previously been found to be unfit, he benefits from the fit-parent presumption.
13 See C.J.C., 603 S.W.3d at 819; In re B.B., 632 S.W.3d at 139. However, the trial court
found Quincy to be unfit; accordingly, we must review the finding for abuse of discretion.
See In re H.N.T., 367 S.W.3d at 903. The degree of proof necessary to overcome the fit-
parent presumption remains unsettled. See In re J.O.L., 2023 WL 2290300, at *3 (citing
In re C.J.C., 603 S.W.3d at 823 (Lehrmann, J., concurring)). But it is not necessary to
settle that question now; Martin provided no evidence that Quincy was an unfit parent.
See id.
The evidence presented by Martin regarding Quincy’s parenting, construed in a
light most favorable to the trial court’s ruling, was conclusory and included unclear
statements that Quincy has not “step[ed] up and be[en] a father,” uses profanity, and is
“immature.” See id. at *4; see also In re D.D.L., 2022 WL 3652496, at *4. Although Martin
described Quincy’s home as a “dilapidated shack,” he acknowledged he had not seen the
inside of the home and presented no specific evidence as to how or in what way the home
would impair Kaylee’s physical health or emotional well-being. See In re J.O.L., 2023 WL
2290300, at *4; see also In re D.D.L., 2022 WL 3652496, at *4. Martin presented no
evidence that Quincy engaged in any conduct or behavior that would typically
demonstrate a parent is unfit, such as physical abuse, neglect, abandonment, drug or
alcohol abuse, or other immoral behavior. See Rolle, 527 S.W.3d at 420. In fact, Martin
acknowledged that, aside from one visit that he refused to take Kaylee to, Quincy had
attended every visit that was allowed of him.
At best, Martin testified to one incident that could be construed as calling into
question Quincy’s fitness: when Quincy brought his three-year-old daughter to Martin’s
14 home during a visit and she fell down stairs. However, testimony that a three-year-old
child was allowed to move about the home and fell cannot be said to qualify as evidence
that Quincy is unfit, without more. See Rolle, 527 S.W.3d 420. Although Martin produced
evidence that he had custody and control over Kaylee for significant periods of time,
during which she seemed to be well cared for, such evidence does not overcome the fit-
parent presumption. See In re J.M.G., 553 S.W.3d at 143. Rather, the evidence that
Martin produced goes to Kaylee’s best interest rather than Quincy’s fitness as a parent.
See id. As such, the evidence Martin presented failed to show that Kaylee’s physical
health or emotional well-being would be impaired by Quincy’s care or decision-making,
let alone significant impairment. See In re J.O.L., 2023 WL 2290300, at *4. There was
legally insufficient evidence to support the trial court’s finding that Quincy was unfit. See
In re H.D.C., 474 S.W.3d at 763. Accordingly, we conclude the trial court abused its
discretion in appointing Martin as Kaylee’s managing conservator and granting him
possession and access. See In re H.N.T., 367 S.W.3d at 903. We sustain Quincy’s
second issue.
IV. CONCLUSION
We reverse the trial court’s judgment and remand this case back to the trial court
to enter an order in the best interest of the child that is consistent with this opinion. 9
CLARISSA SILVA Justice
Delivered and filed on the 6th day of July, 2023.
9 Appellant’s response to our abatement included three motions, which we carried with the case. Each of those motions are hereby denied as moot.