In the Interest of R.D.Y.

51 S.W.3d 314, 2001 Tex. App. LEXIS 2404
CourtCourt of Appeals of Texas
DecidedApril 12, 2001
DocketNo. 01-99-01073-CV
StatusPublished
Cited by95 cases

This text of 51 S.W.3d 314 (In the Interest of R.D.Y.) 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 R.D.Y., 51 S.W.3d 314, 2001 Tex. App. LEXIS 2404 (Tex. Ct. App. 2001).

Opinion

[317]*317OPINION

SCHNEIDER, Chief Justice.

Appellant filed a motion for rehearing. We deny the motion, but withdraw our original opinion of February 1, 2001 and issue this one in its stead. Appellant, R.D.E. (“Mother”), and R.A.Y. (“Father”) together had a son, R.D. (“Child”). Mother was given sole custody of Child. Appel-lees, Father and D.E, the maternal grandmother, (“Grandmother”) filed a motion to modify the custody order. At the hearing on the motion, the trial court gave three-way joint custody to Mother, Father, and Grandmother. Mother was given limited visitation. Mother appeals the modification of the custody. We reverse in part and affirm in part.

Factual and Procedural Background

On July 9, 1996, the trial court adopted an order establishing that Father was the father of the child naming Mother the sole managing conservator. On February 7, 1997, Father filed a motion to modify in a Suit Affecting the Parent Child Relationship (SAPCR). He requested that he be named managing conservator of Child. Three days later, Grandmother filed a motion in the SAPCR requesting that she be named managing conservator of the child. A trial was held on these motions. The child was 12 years old at the time of the trial.

On June 11, 1999, the trial court appointed Mother, Grandmother, and Father as Joint Managing Conservators of Child. Grandmother was given the right to establish the primary residence of the child. Mother was awarded visitation at specified dates and times and was allowed possession of the child if Grandmother agreed in advance in writing. The trial court also gave Grandmother the sole discretion to determine if Mother was mentally capable of exercising her visitation with the child.

In six points of error, Mother appeals the order removing sole custody of the child from the mother and giving Mother, Grandmother, and Father joint custody. In her first issue, Mother contends the trial court erred by failing to file specific findings of fact and conclusions of law. In her second issue, Mother argues the trial court erred when it delegated the power of setting visitation between Mother and Child to Grandmother. Third, Mother suggests the trial court’s order violates the constitutional right of a mother to raise her son. In her fourth issue, Mother contends Grandmother lacked standing to sue for custody. Fifth, Mother argues the evidence was insufficient to support the order changing Mother’s sole managing conser-vatorship to a joint managing conservator-ship for Grandmother and Father. Finally, Mother argues the trial court erred in awarding attorney’s fees against her to the attorney ad litem for the child.

Analysis

1. Factual Sufficiency Review

We begin with Mother’s issue five. Mother argues the evidence was insufficient to support the order changing her sole managing conservatorship to a joint managing conservatorship between Mother, Grandmother, and Father.

A. Standard of Review

A trial court has broad discretion in deciding the issue of conservatorship modification and will not be reversed absent a clear abuse of discretion. See Seidel v. Seidel, 10 S.W.3d 365, 368 (Tex.App.—Dallas 1999, no pet.); Warchol v. Warchol, 853 S.W.2d 165, 167 (Tex.App.Beaumont 1993, no writ). In child custody cases, factual insufficiency is not an independent ground for asserting error; however, it is relevant in determining if the [318]*318trial court abused its discretion. See Seidel, 10 S.W.3d at 368; In re A.D.H, 979 S.W.2d 445, 447 (Tex.App.—Beaumont 1998, no pet.). The factual sufficiency standard used in reviewing the sufficiency of a jury verdict is also used in reviewing a trial court’s finding of facts. See Seidel, 10 S.W.3d at 368. After examining all the evidence, we will only set aside the trial court’s findings if they are so against the great weight of the evidence that they are clearly wrong and unjust. See id.

B. The Evidence

The evidence shows that Mother got pregnant and chose to have the baby without marrying Father. She moved into a house opposite Grandmother’s home. She paid her own bills by working part-time as a self-employed attorney. Mother raised the Child alone, with the exception of a few baby clothes, diapers, and food provided by Grandmother.

When Child was about four years old, Mother’s relationship with Grandmother deteriorated and they stopped speaking. Grandmother watched Child a few times while Mother was at work, and Mother and Grandmother communicated through hand-written notes. On one such instance, Grandmother allowed Child to go for a bike ride on the handlebars of a neighbor’s bike. However, Child fell and suffered a concussion, and Mother blamed Grandmother for not watching Child more closely-

An employee from Child Protective Services (CPS) testified that the agency received a report that Mother had been hitting Child. Child had a cut over his eye, and the Child’s school was not able to locate Mother. CPS was finally able to make contact with Mother, but Mother denied the abuse and neglect allegations. Although CPS recommended parenting classes and psychological evaluation, Mother was unwilling to receive these services and felt there was nothing wrong.

About three months later, CPS received a report that Mother was intoxicated and asking people on the street if she could live with them because she had no place to live and no food to eat. When CPS contacted Mother, she explained that she was hot and needed a fan, but that there was nothing else wrong. Then CPS found that Child had been left at a church day-care center. An investigator spoke to Child, who stated that he was hungry and could not remember the last time he ate. CPS also found him to be “dirty” and “filthy.”

CPS considered filing for custody of Child, but realized Grandmother had already done so. A caseworker went to Mother’s home with a law enforcement officer to interview Child. The door was open, and they entered the home. CPS found the condition of the home to be a “deplorable living environment.” Testimony indicated there was trash all over the house, spoiled milk on the table, maggots on the chicken that had been left sitting out, broken mattresses and bicycles everywhere, and a broken, corroded toilet in the bathroom. The record contains pictures of the home in this condition. However, Mother also admitted into evidence pictures of her home taken later that depicted the living area as neat, clean, and tidy.

CPS workers found Child at school and talked with him. Child told the caseworker that he was worried about what was going on at home, and asked he if would have to go back home to Mother. There were five reports of abuse and/or neglect made to CPS between September 1990 and July 1996.

At some point, Mother was arrested. The day care center called Grandmother and asked her to pick up Child because Mother had not done so. Grandmother [319]*319picked up Child and took him with her when she went to get Mother from jail. Mother was upset that Child had been brought along to watch her being released from jail. Grandmother testified that, in retaliation, once the ear was on the freeway, Mother hit Grandmother in the head and took Grandmother’s glasses off while Grandmother was driving.

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Bluebook (online)
51 S.W.3d 314, 2001 Tex. App. LEXIS 2404, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-the-interest-of-rdy-texapp-2001.