in the Interest of X.C.B., AKA X.C, I.C.B., AKA I.C., S. B.C., and J.W.C AKA J. W. W.

Opinion

Appellant=s Motion for Rehearing Overruled, Opinion of June 18, 2009 Withdrawn, Affirmed and Substitute Memorandum Opinion filed July 30, 2009

Appellant=s Motion for Rehearing Overruled, Opinion of June 18, 2009 Withdrawn, Affirmed and Substitute Memorandum Opinion filed July 30, 2009.

In The

Fourteenth Court of Appeals

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NO. 14-08-00851-CV

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IN THE INTEREST OF X.C.B. AKA X.C., I.C.B. AKA I.C., S.B.C., AND J.W.C. AKA J.W.W.

On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 2007-03224J

S U B S T I T U T E   M E M O R A N D U M   O P I N I O N

Appellant=s Motion for Rehearing is overruled, our memorandum opinion of June 18, 2009 is withdrawn, and the following substitute memorandum opinion is issued in its place.

After a bench trial, the trial court terminated the parental rights of the surviving birth parents of X.C.B., I.C.B., S.B.C., and J.W.C.  The court further denied the requested relief of the intervenor, Chris Brown, and determined that the Texas Department of Family and Protective Services (ADFPS@) would be the children=s sole managing conservator.  In four issues, Brown argues the trial court erred in (1) removing the children from his home, ordering genetic testing, and finding that he was not their father, (2) appointing DFPS as sole managing conservator, and (3) incorporating all prior interlocutory orders into the final order. We affirm.

I.  Factual and Procedural Background

X.C.B. was born to Sherrie Chatman in December 2002; I.C.B. was born in August 2004.  When S.B.C. was born in February 2006, Chatman and the baby tested positive for cocaine.  At that time, the children remained with their mother who was sent to drug rehabilitation.  Monnette Young, a caseworker for DFPS, testified that it is the agency=s policy to permit mothers whose children test positive for the first time to take their babies with them during rehabilitation to facilitate bonding between mother and child.  On March 24, 2007, Chatman gave birth to J.W.C. who also tested positive for cocaine.  At that time all four children were placed under the care of DFPS.  J.W.C. was immediately placed in foster care, but the three older children were permitted to live with Brown who had maintained an Aon-again, off-again@ relationship with Chatman. 

On April 5, 2007, DFPS filed an original petition for protection of the children, for conservatorship, and for termination of the parents= rights.  In the petition, DFPS alleged that Brown considered himself to be the father of the three oldest children, but requested genetic testing to determine paternity.  The petition further sought to terminate the rights of Floyd Walker, alleged to be the father of J.W.C., and Sherrie Chatman, the children=s mother.  On April 25, 2007, the trial court ordered Brown to submit to genetic testing to determine if he was the father of the three oldest children.  On the same day, the court appointed DFPS as the temporary managing conservator of the children.  The children were permitted, however, to live with Brown in his home subject to certain restrictions including that he permit the children to visit their mother only when supervised by DFPS.

On September 12, 2007, the three oldest children were removed from Brown=s home by DFPS because the children witnessed their aunt stab their mother.  Brown testified that he took the children to visit their mother=s sister.  According to Brown, while at their aunt=s home, the children=s mother arrived and immediately began arguing with her sister.  The aunt stabbed the children=s mother during the argument.  Brown testified that the children did not see their mother being stabbed and that he removed the children from the house as soon as the mother arrived.  However, X.C.B. told a caseworker that he saw his mother and aunt arguing and that Athere was a lot of blood.@  The children=s great, great grandmother, Francis Chatman, testified that on the night of the stabbing Brown took the children along with their mother to the aunt=s home.  This was in direct violation of the court=s order that the children only see their mother under the supervision of DFPS.

On April 3, 2008, Chatman was found deceased.  The record is unclear as to the cause of her death.  On June 16, 2008, Brown was dismissed from the conservatorship suit because genetic testing excluded him as the father of any of the children.  On July 9, 2008, Brown filed a petition in intervention seeking to be appointed sole managing conservator of the three oldest children.  After a bench trial, the trial court terminated the rights of Floyd Walker and the unknown father of the three oldest children.  The court further found that Brown could not provide a safe, stable, and nonviolent environment for the children, denied the relief he sought in intervention, and appointed DFPS the sole managing conservator of the children.

II.  Determination of Paternity

In his first issue, Brown argues that the trial court erred in permitting DFPS to remove the children from his home when J.W.C. tested positive for cocaine.  Brown further argues that the trial court lacked subject-matter jurisdiction because DFPS lacked standing to challenge his paternity. 

At the time J.W.C. tested positive for cocaine, DFPS took temporary conservatorship of the children.  The order issued by the court was interlocutory and has now been superseded by the court=s final judgment.  An order addressing temporary conservatorship of children is interlocutory, and this court lacks subject-matter jurisdiction over an appeal from such an order.  In the Interest of N.J.G., 980 S.W.2d 764, 767 (Tex. App.CSan Antonio 1998, no pet.).  Thus, to the extent Brown attempts to challenge the trial court=s interlocutory order, we have no jurisdiction and overrule his issue.

Further, Brown challenges the trial court=s order of genetic testing.  A proceeding to adjudicate parentage is governed by the Uniform Parentage Act.  See Tex. Fam. Code Ann. '' 160.001B160.707 (Vernon 2008).  Section 160.601 specifically authorizes the DFPS to bring suit to adjudicate the parentage of a child.  Tex. Fam. Code Ann. ' 160.601.  Once genetic testing is conducted and the results released for use in a proceeding to determine parentage, any resulting harm cannot be undone.  In re Attorney Gen. of Tex., 272 S.W.3d 773, 777 (Tex. App.CDallas 2008, orig. proc.) (holding there is no adequate remedy at law for the harm respecting erroneously ordered genetic testing, and mandamus relief is appropriate).  Therefore, once Brown submitted to genetic testing, his complaint that the  order for testing was erroneous became moot.  Brown=s first issue is overruled.

III.  Managing Conservatorship

In his second issue, Brown contends that the trial court erred in appointing DFPS the sole managing conservator of the children contrary to the parental presumption. 

A.  Standard of Review

Actions to determine conservatorship of children are governed by the best interests of the children.  See Tex. Fam. Code Ann. ' 153.002.  The burden of proof in conservatorship cases, as opposed to termination cases, is a preponderance of the evidence.  See Tex. Fam. Code Ann. ' 105.005; In re J.A.J., 243 S.W.3d 611, 616B17 (Tex. 2007).  In determining the best interests of the children, the trial court has wide latitude, and on review we ask only whether the court acted arbitrarily, unreasonably, or without reference to any guiding principles.  See Coleman v. Coleman, 109 S.W.3d 108, 110 (Tex. App.CAustin 2003, no pet.).  The trial court does not abuse its discretion as to factual matters as long as some evidence of a substantive and probative character exists to support the decision.  In re M.N.G., 147 S.W.3d 521, 530 (Tex. App.CFort Worth 2004, pet. denied).  Legal and factual sufficiency are not independent grounds for review in conservatorship cases, but are relevant factors in deciding whether the trial court abused its discretion.  In re W.M., 172 S.W.3d 718, 725 (Tex. App.CFort Worth 2005, no pet.).

Brown primarily argues that as the sole surviving parent he is entitled to sole managing conservatorship of the children.  Brown relies on the parental presumption found in section 153.131 of the Texas Family Code, which provides that unless the court finds that appointment of the parent 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.  Tex. Fam. Code Ann. ' 153.131.  Brown admits that genetic testing proved he is not the biological father of the children, but argues, by virtue of his common-law marriage to the children=s mother, that  he should be considered their parent.

Brown first argues that he considered himself to be the common-law husband of the children=s mother, which entitles him to a presumption of paternity under section 160.204 of the Family Code.  Section 160.204(1) provides that a man is presumed to be the father of a child if he is married to the mother of the child and the child is born during the marriage.  However, the presumption of paternity can be rebutted by genetic testing excluding the husband as the father of the children.  Tex. Fam. Code Ann. ' 160.631.  Because the genetic tests excluded Brown as the father, and Brown has failed to produce other genetic testing showing him to be the father, the presumption under section 160.204 has been rebutted.  Therefore, Brown does not benefit from the parental presumption.

We now turn to whether the trial court abused its discretion in appointing DFPS as sole managing conservator.  A court=s primary consideration in any conservatorship case shall always be the best interests of the children.  In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000).  Courts may use the following nonexhaustive list of factors to determine the children=s best interest: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the children; (6) the plans for the children by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent, or potential conservator, that may indicate that the existing relationship is not a proper one; and (9) any excuse for the acts or omissions of the potential conservator.  Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976).

Turning to those factors that are present in this case, we note that the two oldest children were six and four years old at the time of trial.  Although they were not asked specifically with whom they wanted to live, there was undisputed testimony that they bonded with Brown and treated him as their father.  With regard to the emotional and physical needs of the children and the potential emotional and physical danger to the children, the primary concern of DFPS and the trial court was that Brown placed the children at risk by taking them to the home of their aunt.  There was conflicting evidence as to whether Brown put the children in contact with their mother or whether the mother arrived later.  Even assuming Brown did not put the children in contact with their mother, he admitted he took the children to the aunt=s house who showed a propensity for violence in that she stabbed her sister while the children were in the house.  The evidence further showed that while he was living with the children and their mother in 2005, Brown was convicted of assaulting the children=s mother.  Further, at the time of trial, Brown was on community supervision probation for possession of marijuana.

The evidence further showed that Brown owns a trucking business and earns a living by driving a truck, which required him to leave the children with a full-time babysitter for days at a time.  Brown testified that when he learned that the court would not look favorably on his long absences he hired drivers so he would not be away from home as often.  The evidence also showed that Brown once took the two older boys on a driving trip in his truck.  At the time Brown took the boys, DFPS was the managing conservator and Brown failed to ask DFPS permission to remove the boys from the state.

Brown=s assault and possession convictions should be weighed when considering acts or omissions of the potential conservator that indicate the existing relationship is not a proper one.  As to Brown=s parenting abilities, he testified that he has four biological children:  a 30-year-old son, a 26-year-old son, a 24-year-old daughter, and an 18-year-old daughter.  The youngest daughter lives in his home.  The oldest son is currently serving a 15-year sentence for burglary of a habitation, and the 26-year-old son has several convictions dating back to 1999, including a conviction for sexual assault.  The younger son, who occasionally stays overnight in Brown=s home, was recently released from prison where he was serving a sentence for robbery.  With regard to the programs available to help Brown, he testified that he completed a parenting class ordered by the court.

Monnette Young, the DFPS caseworker, testified that the two older boys are currently living together in a foster home and the girl is living in another home.  Although X.C.B. is demonstrating aggressive, violent tendencies, he seems to be adjusting and is receiving counseling.  The children=s foster placements meet their physical and emotional needs and are in the best interests of the children.  DFPS is attempting to place the children with a family member, if possible. 

It is the public policy of this State to resolve conservatorship disputes in a manner that provides a safe, stable, and nonviolent environment for the child.  In re C.A.M.M., 243 S.W.3d 211, 216 (Tex. App.CHouston [14th Dist.] 2007, pet. denied).  Reviewing the evidence in light of the Holley factors, we find the record supports the trial court=s determination that Brown would not provide a safe, stable, and nonviolent environment for the children.  Because the trial court did not abuse its discretion in denying the relief sought in intervention, we overrule Brown=s second issue.

In his third issue, Brown argues that the trial court violated the United States and Texas Constitutions by permitting DFPS to direct the children=s moral and religious training.  Section 151.001 lists among the rights and duties of a parent the right to direct the moral and religious training of the child.  Tex. Fam. Code Ann. ' 151.001.  Brown now argues, for the first time on appeal, that by giving a state agency that right, the trial court has violated the First and Fourteenth Amendments to the United States Constitution and article I, section 6 of the Texas Constitution.  Brown did not raise the constitutional issue in the trial court, his statement of points on appeal, or in his motion for new trial.  To preserve his complaint for appellate review, Brown must have presented to the trial court a timely request, objection, or motion that states the specific grounds for the desired ruling.  See Tex. R. App. P. 33.1.  Even a constitutional challenge can be waived if not properly raised in the trial court.  In re Doe 2, 19 S.W.3d 278, 284 (Tex. 2000).  Therefore, we overrule his third issue.

In his fourth issue, Brown argues that the trial court erred in entering a final order that incorporates all prior interlocutory orders because those orders conflict with the terms of the final order.  Brown complains that the court issued temporary orders that described his compliance with a service plan and that those orders conflict with the final order.  By failing to raise this issue in his statement of appellate points, Brown has waived any error.

Section 263.405 of the Texas Family Code requires a party who intends to appeal an order in a suit affecting the parent-child relationship to file a statement of points on which the party intends to appeal.  Tex. Fam. Code Ann. ' 263.405(b)(2) (Vernon Supp. 2008).  Section 263.405(i) provides that an appellate court may not consider any issue that was not specifically presented to the trial court in a timely filed statement of the points on which the party intends to appeal or in a statement combined with a motion for new trial.

In this case, Brown filed a statement of appellate points and included a point in which he alleged, AThe order fails to properly incorporate >any and all previous interlocutory orders.=@ On appeal, he complains that the trial court erred in entering a final order that incorporates all prior orders.  Not only did Brown fail to raise this issue in his statement of appellate points, he raised the opposite issue.  Section 263.405 was enacted to ensure that the trial court may correct any Amistakes that could have been quickly and easily corrected@ and thus eliminate the need for appeal.  In re S.K.A., 236 S.W.3d 875, 888 (Tex. App.CTexarkana 2007), pet. denied, 260 S.W.3d 463 (Tex. 2008), citing House Comm. on Juv. Just. & Fam. Issues, Bill Analysis, Tex. H.B. 409, 79th Leg., R.S. (2005).  Brown did not complain in his statement of appellate points that the trial court erred in incorporating the temporary orders into the final order.  Because Brown failed to raise this issue in his statement of appellate points, his fourth issue is waived.

The judgment of the trial court is affirmed.

/s/      John S. Anderson

Justice

Panel consists of Justices Anderson, Guzman, and Boyce.