Opinions, March 26, 2014

Today the Fourteenth Court of Appeals issued its opinion in In re E.S., No. 14-14-00328-CV (Tex.App.–Houston [14th Dist.] Mar. 26, 2015) which stands for the unobjectionable proposition that a partial summary judgment is not a final and appealable order. In this matter, the petitioner’s suit asserted he was the father of a child born to respondent mother in 2006, though the mother was married at the time of conception and birth to her husband. In fact, the mother had been married to her husband in 1990 and remained married to him to present. The husband’s name was listed as the father on the child’s birth certificate.  The petitioner’s original petition named only the mother as respondent, but he eventually amended to include the husband as a respondent.  The mother and husband filed counter-claims against petitioner. The husband filed a motion for summary judgment asserting a statute of limitations defense which was granted. The petitioner appealed. The Court of Appeals found it lacked jurisdiction over petitioner’s appeal because the summary judgment was not a final order which disposed of all claims.

Opinions, March 24, 2015

The Fourteenth Court of Appeals released two family law opinions yesterday: In re C.D.B., No. 14-13-00718-CV (Tex.App.–Houston [14th Dist.] Mar. 24, 2015) and In re M.L.G.J., T.M.J., T.L.W., Jr., M.A.J., T.P.R.J., B.W.D. III, M.R.J., and L.C.J., No. 14-14-00800-CV (Tex.App.–Houston [14th Dist.] Mar. 24, 2015).

In In re C.D.B., the Court of Appeals went to remarkable lengths to construe the pleadings as granting the trial court jurisdiction. In the underlying matter, the mother was appointed managing conservator of the child and the father was appointed possessory conservator and ordered to pay child support. The child graduated from high school in June 2012 and turned eighteen in July 2012. In January 2013, the father filed a “Petition to Modify the Parent Child Relationship.” The father alleged that the child lived with him from some point in his junior year until graduation, a period in which the mother voluntarily surrendered custody but the father continued to pay child support. The court construed the father’s petition as requesting three types of relief: 1) direct reimbursement for the support he paid while the child was living with him before graduation; 2) reimbursement of those payments as a counterclaim to the mother’s claim for arrearages or an offset of support provided by father during the last two years of high school against his arrearages; and 3) retroactive support from the mother.

The mother moved to dismiss the father’s petition  on the grounds the child had turned 18 before the petition was filed, had no disability and the trial court lacked jurisdiction over the matter. The trial court dismissed the petition on the ground that the child was 18 and the court lacked jurisdiction to “modify” its underlying order.

The court of appeals construed the mother’s motion to dismiss as a plea to the jurisdiction challenging the father’s pleadings. This affects the standard of review. When a plea to the jurisdiction challenges the plaintiff’s pleadings, the trial court must determine if the plaintiff has alleged facts that affirmatively demonstrate the court’s jurisdiction. Whether or not the plaintiff has done so is a question of law reviewed de novo. The plaintiff’s pleadings will be construed liberally in the plaintiff’s favor and unless the pleadings affirmatively negate the existence of jurisdiction, the plea to the jurisdictions should not be granted without allowing the plaintiff an opportunity to amend. Throughout the opinion, the court treats it as the mother’s burden to negate existence of jurisdiction. Once the court of appeals recites the standard of review, you can’t but help think the disposition is in view.

The father apparently admitted that he did not request a modification of the support order (despite the pleading’s title) and the court of appeals agreed to look behind the pleadings and address the jurisdictional issue for each of the three different forms of relief requested. As a request for direct reimbursement, the father’s pleading failed and the trial court lacked jurisdiction to retroactively modify the support order to eliminate the father’s child support obligations while the child stayed with him. In other words, the father’s own pleading negated jurisdiction.

Next is the father’s request for reimbursement or offset relative to arrearages. The father argued that because the trial court retained jurisdiction to enforce its support order until all arrearages were paid, despite the child being emancipated, it also retained jurisdiction to entertain the father’s request for reimbursement or offset against the arrearage claim. On appeal, the mother suggested the father could not obtain this relief because there was no motion to enforce and the relief requested by the father was defensive and not based on an independent right to seek reimbursement. The court of appeals noted there was no motion to enforce by either the mother or AG in the record. Then, the court of appeals noted, “nothing in the record negates that such a motion was filed.” I don’t understand this. The court of appeals just said that the mother stated on appeal there was no motion to enforce. What proof could she offer to show the non-existence of a motion to enforce? A printout of the trial court’s docket sheet? But, “absent special exceptions” the Court of Appeals considered the father’s reference to a “claim” for arrearages “as sufficient to mean there was a motion to enforce.”

Then, to make matters more confusing, the father apparently acknowledged on appeal that a motion to enforce was not filed because the AG continued to garnish his wages to extinguish the arrearages, which negated the necessity for a motion to enforce. The father also suggested the garnishment of wages was functionally equivalent to a motion to enforce and thus he was permitted to seek reimbursement or offset or that he could request confirmation of his arrearages so that he could then seek reimbursement or offset. Without reaching this issue, the court of appeals concluded the dispute as to whether or not there existed a claim against which the father could obtain reimbursement or offset concerned the merits of his request. The mother’s pleading was a “narrowly based” on the trial court’s lack of jurisdiction and did not address the father’s request for reimbursement or offset. Therefore, the court of appeals held, the mother’s plea failed to negate the trial court’s jurisdiction and the trial court erred by dismissing the father’s petition.

As for the trial court’s dismissal of the father’s request for retroactive support, the father evidently did not challenge the dismissal and the Court of Appeals upheld that portion of the trial court’s ruling.

The Court of Appeals sustained the father’s issues “to the extent the challenges the trial court’s dismissal of his request for reimbursement or offset relative to a claim for arrearages” and reversed that portion of the dismissal and remanded for further proceedings. It’s unclear what the trial court is going to do with the case now, as there is no motion to enforce on file. Perhaps have an evidentiary hearing?

The dissent, authored by Chief Justice Kem Thompson Frost, did not construe the father’s pleadings as liberally, finding that it could be construed as either a request for modification of a prior child support order or as an affirmative claim for reimbursement irrespective of whether he was in arrears–neither of which the trial court had jurisdiction over.

The dissent points out that not only was no motion to enforce filed, there are several items in the record which show that no such motion was filed, including an original petition filed by the father as petitioner (indicating he is not asserting a defense of reimbursement or offset in response to a motion to enforce) and in which he requested service on the mother (which would not be necessary if he was responding). The mother filed only an answer and did not assert any claim against the father, much less past due child support.

Further, the mother filed a document in the trial court which indicated that by the time she filed her answer, the father’s arrearages had been extinguished. In a series of footnotes, the dissent contests much of the majority’s construction of the father’s petition, especially on the issue of whether or not the father alleged a claim for child support arrearages. The dissent argues that the father’s suggestion that garnishing of wages is the functional equivalent of a motion to enforce is insufficient to invoke the trial court’s jurisdiction. Finally, the dissent notes that the majority incorrectly stated the law when it stated the trial court can only dismiss for lack of jurisdiction based upon a ground contained in a plea to the jurisdiction and that the court of appeal’s review is limited to those grounds. The trial court, the dissent stated, is not limited to the grounds stated in the plea to the jurisdiction.

In re M.L.G.J., T.M.J., T.L.W., Jr., M.A.J., T.P.R.J., B.W.D. III, M.R.J., and L.C.J. is a termination case. Like most termination cases, it is heartbreaking. Interestingly, Justice Tracy Christopher drafted a brief concurrence which lamented the lack of evidence in the trial court, in the form of both useful testimony and documents, but she ultimately found the evidence was sufficient to affirm the terminations.

Opinions, March 17, 2015

Today the First and Fourteenth Courts of Appeals released the following four family law opinions.

From the First Court of Appeals:

Colmenero v. Colmenero, No. 01-14-00071-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015) is a reminder of the minimum testimony required for a just and right division of a marital estate in a default judgment divorce. In this case, the husband appealed a default judgment. The wife had served him but he did not answer. At trial, the mother testified that she and the husband owned a parcel of real property here in Houston and during the marriage purchased six others in Mexico. However, no documents were entered into evidence and the mother failed to identify the values of key pieces of the marital estate. The Court of Appeals ruled there was insufficient evidence to support the division and reversed and remanded.  Additionally, because the child support award of $400 per month may have been “materially influenced” by the division, the child support determination was also reversed.

Barnes v. Deadrick, No. 01-14-00271-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015) with a strongly worded dissent. This is an interesting bill of review case with a long history which serves as an unfortunate reminder to victors to obtain an order or record memorializing a win. In the underlying SAPCR filed in 2007, Deadrick, the half-sister of the subject child, was appointed SMC in April, 2009, when Barnes, the father, did not appear for trial. Barnes later claimed he was never served and substitute service at an incorrect address was insufficient. Barnes subsequently filed a bill or review and, a year and a half later, in September, 2010, failed to appear for a hearing (though Deadrick and her attorney were present). The Associate Judge made a docket notation “Bill of Review denied” and orally denied the bill of review. No order was entered memorializing the denial and, sadly,  no transcript made it into the record. On February 15, 2011, the presiding trial court judge entered an order for DWOP.

Barnes then filed a second bill of review almost two years later, on January 31, 2013 which is the subject of the appeal. He argued that he was never served with the original SAPCR proceeding. Deadrick answered, asserting res judicata. At a hearing in December 2013, the court agreed and denied the second bill of review on January 9, 2014. Barnes filed a motion for new trial which was denied and, in fact, the trial court levied sanctions against Barnes for fees.

On appeal, the Court of Appeals held that a docket sheet notation is not a final judgment on the merits (which is a necessary element of res judicata). Additionally, the DWOP order was presumptively without prejudice.  In a lengthy footnote, the Court of Appeals recognized the possibility that the verbal denial of the first bill of review by the AJ may have been on the merits but no transcript appeared in the record.

Deadrick argued on appeal that the Court of Appeals can affirm the denial of the bill of review because Barnes did not meet his burden of offering proof at the first bill of review hearing in December 2013 to show each element of his bill or review claim. The Court of Appeals held, however, that when a bill of review plaintiff claims lack of service, they are relieved of establishing the first two elements of a bill of review (meritorious defense prevented by fraud , accident, or mistake) and because Barnes’ sworn bill of review petition alleged lack of service, he was not required to establish the first two elements of a bill of review.

Thus the Court of Appeals apparently agrees that Barnes had the burden of proving he was not served with the original SAPCR proceeding. In response to Deadrick’s argument that Barnes had his opportunity to do so at the December, 2013 hearing, the Court of Appeals stated the record indicates that the trial court conducted essentially a mini trial on Deadrick’s res judicata defense before reaching the issue of Barnes’ allegation of non-service. Because the trial court found the res judicata defense wholly defeated Barnes’ bill of review, the trial court did not take evidence on Barnes’ allegation of lack of service. The Court of Appeals remanded for further proceedings, presumably an evidentiary hearing on Barnes’ allegation of lack of service.

The robust dissent, by Justice Evelyn Keyes (who holds a Ph.D. in Philosophy from Rice and a Ph.D. in English from the University of Texas), takes Barnes to task for not filing a motion to reinstate his case under TRCP 165a after it was DWOPed, failure to provide any evidence of his lack of service at multiple opportunities, and generally not exercising diligence in prosecuting his case. Additionally, Justice Keyes suggests the more practical course of action for Barnes would be to file a modification instead of seeking to undo a SAPCR entered six years ago (and filed eight years ago) but I suppose Barnes would also like to undo the child support obligation incurred in the original proceeding as well (to the extent possible).

In the consolidated cases of In the Interest of A.A.M. and J.M., No. 01-14-00798-CV and In the Interest of I.L.M., 01-14-00801-CV (Tex.App.–Houston [1st Dist.], Mar. 17, 2015), the Court of Appeals upheld the termination of the father’s parental rights.

From the Fourteenth Court of Appeals:

In re Merrikh, No. 14-14-00024-CV (Tex.App.–Houston [14th Dist.], Mar. 17, 2015) is essentially two appeals on separate issues. In the first issue, the father appealed the trial court’s determination of child support which was based on his earning capacity and not his actual income as permitted by Section 154.066 because the trial court found he was intentionally unemployed or underemployed. The Court of Appeals affirmed as the trial court found the father’s business was a “sham corporation” (a finding not challenged by the father on appeal) and the trial court was thus permitted to include the corporation’s income for child support calculations.

The second issue involves the father’s parents and the conveyance of real property. The mother joined the father’s parents, the grandparents, to her divorce petition as co-respondents who challenged the trial court’s determination of a parcel of real property as the mother’s separate property. At issue were five deeds conveying the property. In August 1999, the grandparents conveyed the property to the father. In September 1999, the father conveyed the property to the mother. In October 1999, the mother conveyed the property to the father’s mother, the grandmother. The mother claimed that the father defrauded her by presenting her with only a signature page to the third deed, telling her it would transfer the property back to him when, in fact, it transferred the property to the grandmother. The Court of Appeals found the evidence was legally and factually sufficient to support a finding that the mother lacked the requisite intent to convey the property under the terms of the deed, rendering it void.

Opinions, March 12, 2015

On March 12, 2015, the First Court of Appeals released two family law opinions, Nelson v. Nelson, No. 01-13-00816-CV (Tex.App.–Houston [1st Dist.], Mar. 12, 2015) and Tanner v. Black, No. 01-13-01059 (Tex.App.–Houston [1st Dist.], Mar. 12, 2015). Interestingly, both cases involve the trial court striking a party’s pleadings, but the results in each case differ.

The opinion in Nelson v. Nelson is an interesting read because the trial appears to have been something of a train wreck. The father represented himself. Because he failed to pay his portion of the amicus attorney’s fees despite several warnings from the trial court, his jury demand and pleadings were struck a week before trial. At trial, he refused to present any evidence or witnesses, evidently in protest over the trial court denying him a trial by jury. The mother (ably represented) presented damning evidence of the father’s character and poor parenting. The mother was appointed SMC. The father appealed, challenging the trial court’s striking of his jury demand and pleadings.

On appeal, the mother conceded it was error for the trial court to strike the father’s jury demand. But the court of appeals found the error was not harmful and thus not reversible. A trial court’s refusal to grant a jury trial is harmless error only if the record shows there were no material issues of fact and an instructed verdict would have been justified. In most family law cases, this is a very difficult standard to reach, as questions of conservatorship and possession and access are inevitably fact-specific. But in this case, because the father presented absolutely no evidence to rebut the mother’s evidence of the father’s abysmal conduct (besides lodging overruled objections), a directed verdict would have been justified and thus, the error of striking the jury demand was found to be harmless.

As for the father’s pleadings, the court of appeals found that the sanction was proportionate to the father’s dilatory conduct. Additionally, the court of appeals noted that for death-penalty sanctions to be just, ordinarily there must be a determination that the wrongdoing party’s actions justify a presumption that his claims or defenses lack merit. But this rule did not apply to this case because the father did not, in his pro se petition, plead for any specific relief other than no-fault divorce and did not allege that the mother had committed any wrongful acts. Perhaps most surprisingly, his petition did not even ask for any particular form of conservatorship over the children and asked the trial court to resolve any facts and make any appropriate orders if the mother and father could not reach an agreement.

In other words, Nelson v. Nelson establishes yet again that litigants who decide to proceed pro se are embarking on a perilous path.

In Tanner v. Black, the court of appeals reversed the striking of the appellant’s pleadings in the trial court.  After his divorce, the appellant-father sued the amicus who worked on his case, both in his own capacity and as his daughter’s next friend. The amicus entered a general denial and pleaded the affirmative defense of immunity under Section 107.009. She also asserted counterclaims alleging the father’s lawsuit was groundless, brought in bad faith or solely for harassment. The amicus also filed a motion to show authority in which she argued the father lacked authority to act as next friend for his daughter because the divorce decree required the joinder of the mother in legal proceedings brought on behalf of the child.

At an evidentiary hearing on the motion to show authority, the father acknowledged he did not have the mother’s agreement to bring the suit as next friend. The amicus argued that all of the father’s claims were “derivative” of her work as an amicus in the divorce and therefore “derivative” of the claims brought as the next friend of the daughter. The court struck all of the father’s pleadings–including those in his individual capacity–and awarded the amicus $26,353.17 in attorneys’ fees and costs of court.

On appeal, the father challenged the trial court striking all of his pleadings (though he did not challenge the trial court striking his pleadings as next friend of the daughter) and the fee award because, he claims, she failed to prove his lawsuit was groundless or brought in bad faith or for the sole purpose of harassment. On appeal, the amicus argued she was immune to the father’s suit. But the court of appeals noted that the father had accused the amicus of bad faith, which is an exception to the immunity rule under the statute. The court of appeals held there was no legal basis for striking the father’s individual pleadings in response to the amicus’s motion to show authority and sustained the father’s first issue.

As for the fee award, the court of appeals reversed that as well. Tex. R. Civ. P. 13 and Chapter 10 of the Tex. Civ. P. & Rem. Code require that sanctions for groundless, bad faith, or for-the-purpose-of-harassment pleadings must  state in the sanctions order a reason for the sanctions. The court of appeals found that the sanctions order in this case did not state on its face it was a sanctions or recite any particulars regarding any sanctionable conduct. Additionally, there was no evidentiary support in the record for a sanctions order under Rule 13 or Chapter 10: no mention of sanctions or testimony about sanctionable conduct at the hearing on motion to show authority.

Opinions, March 10, 2015

On March 10, 2014, the First Court of Appeals released its opinion in McKinley v. Eschochea, No. 01-14-00044-CV (Tex.App.–Houston [1st Dist], Mar. 10, 2015. Appellant McKinley challenged the sufficiency of the evidence regarding the reasonableness of the $5,178.50 awarded in attorney’s fees to the appellee, Victoria Escochea. The court of appeals affirmed, noting that because the parties had waived the making of a record, no sufficiency of the evidence complaints were preserved for appellate review.

On March 10, 2015, the Fourteenth Court of Appeals issued its opinion in In the Interest of T.R.M. aka T.M. and T.J.W. aka T.W., No. 14-14-00773-CV (Tex.App.–Houston [14th Dist] Mar. 10, 2015) affirming the termination of mother’s parental rights.

Opinions, March 3, 2015

On March 3, 2015 (I’m a bit behind), the First Court of Appeals issued two family law opinions, In re Shifflet, No. 01-14-010929-CV (Tex.App.–Houston [1st Dist.] Mar. 3, 2015) (orig. proceeding) and Chisti v. Chisti, No. 01-13-00780-CV (Tex.App.–Houston [1st Dist.] Mar. 3, 2015).

The latter is a lesson in persistence. Sana Chisti and Shamser Chisti divorced in 2006. In 2013, Shamser Chisti filed a bill of review to set aside the divorce decree, which included an affidavit of inability to pay the filing fee. The Harris County District Clerk contested the affidavit, the trial court held a hearing on the contested affidavit but Shamser did not appear. He was ordered to pay the costs to avoid DWOP and the court dismissed the bill of review when he failed to do so. On June 24, 2013, Shamser filed a verified motion to reinstate the case in which he stated he did not receive notice of the trial court’s intent to dismiss the case. Though he requested a hearing, the trial court did not set one and the motion to reinstate was overruled by operation of law. On appeal, only Shamser filed briefs. Citing Tex. R. Civ. P. 165a(3)’s non-discretionary requirement that a trial court must set a hearing on a verified motion to reinstate the case, the Court of Appeals held that the trial court’s apparent failure to notify him of its intent to dismiss his case for  want of prosecution with the date or place of the dismissal merited reversal. Incidentally, Shamser’s argument in his bill of review is that the divorce decree should be set aside because he has since discovered that his ex-wife married someone else while they were still married.

In re Shifflet is a mandamus in which the step-grandparents of the subject children challenged the trial court’s ruling that they did not have standing to intervene. In a 2009 agreed modification order the parents of the children (a 16-year-old and a 13-year-old) were named JMCs and the father’s step-father and wife, the Shifflets, were granted reasonable phone access to the two children. On May 1, 2014, the father filed a petition for writ of habeas corpus with respect to the children, alleging the mother had illegally kept them from him. The mother’s answer alleged the father had been convicted of domestic violence and that he had relinquished control of the 16-year-old child for more than six months prior to the filing of the habeas corpus writ. In an attached affidavit, she alleged she had had possession of the 13-year-old child since March, 2014. The father did not appear for a hearing on June 10, 2014 and the Shifflets were not noticed and also did not appear. On June 18, 2014, the trial court signed an order denying the father’s habeas petition. In this order, the trial court made factual findings including that the 16-year-old had been in the mother’s possession for over six months before the filing of the habeas, that the father had not had any possession of the 16-year-old since July 2013, and that the 13-year-old had been in the mother’s possession since March 2014, and that the father had not had any possession of the 13-year-old since March 2014. The trial court also entered temporary orders naming the mother as temporary SMC and the father as temporary PC but enjoined the father from having any access or possession of the children until further court order. Later that day, the mother filed a motion to modify asking to be named the permanent sole managing and possessory conservator, seeking restraining orders against the father and his current wife.

On September 21, 2014, the Shifflets filed a petition in intervention seeking to be named SMCs of the 13-year-old. They claimed standing under the 2009 order and because they had actual care, control, and possession of the 13-year-old for at least six months. They also stated that the father had relinquished the actual care, control, and possession of the 13-year-old for at least six months and that they had actual care, control, and possession of him for more than that period. In their attached affidavit, they stated the 13-year-old had lived with them from May 2004 to August 2008 and again from March 2014 until September 15, 2014, with the consent of both parents, and that the mother had lived with them from March 2014 until June 5, 2014. They stated the mother was living in an unsafe hotel and that the children were not enrolled in school. The same day, they sought a TRO restraining the parents and requesting they be ordered to pay child support while the case was pending. On October 2, 2014, the trial court signed the TRO and set a hearing for October 22, 2014 for temporary orders and to determine if the TRO should be made a temporary injunction pending final hearing.

The mother filed her answer to the Shifflets intervention on October 8, 2104, arguing they lacked standing to intervene because they were not the biological grandparents of the 13-year-old and that they did not have actual care, control, or possession of him for at least six months ending not more than 90 days before the intervention petition was filed under Section 102.003(a)(9). The mother then moved to dismiss the Shifflets’ petition in intervention for lack of standing because the June 18 order named the mother as SMC of both children and that the factual findings (that the children had been in her possession since at least March 2014) negated the Shifflets’ standing because, she argued, they could not have had “exclusive” possession for the statutorily-required six month period. The mother also alleged that it was the Shifflets who wrongfully withheld the 13-year-old from her and failed to enroll him in school.

On October 22, the trial court held a non-evidentiary hearing on standing and heard from both counsel on the mother’s motion to dismiss. At the mother’s request, the court took judicial notice of the June 18 order (excluding the father from access and finding the mother had possession of the children since March 2014). The mother argued the order’s factual findings made the Shifflets’ affidavit “insufficient as a matter of law” under Section 102.003(a)(9) and thus required dismissal of the Shifflets’ intervention. The mother also argued the intervention should be dismissed because the parental presumption under Chapter 153 of the Family Code should be applied.

The Shifflets countered that Section 102.003(a)(9) does not require that a person seeking conservatorship under the general standing provision be a blood relative, which they had conceded they were not. They also stated they were present in court and prepared to testify as to their actual care, custody, and control of the children, but the trial court did not permit them to testify. The Shifflets also asserted they had standing under Section 156.002(a) because they were “affected” by the June 18 temporary order because the 2009 order granted them reasonable phone access.  They also asserted they had standing under Chapter 153 of the Family Code and requested under Section 153.009 that the Court interview the children to determine with whom the children wished to live.

Without hearing the Shifflets’ testimony and without taking evidence, the trial court granted the mother’s motion to dismiss. Immediately after that, the trial court held an evidentiary ex parte hearing on the mother’s separately filed habeas petition whereupon she testified that though the children had recently returned to stay with the Shifflets because she and her new husband had been staying in a hotel since June 2014, she had moved into a new house but the Shifflets had refused to turn over possession of the children the previous weekend. Without hearing any other witnesses, the trial court granted the mother’s habeas writ. The Shifflets filed a mandamus petition on November 19, 2014.

The Court of Appeals found the trial court erred by taking judicial notice of the the June 18 temporary order because 1) there is nothing in Section 102.003(a)(9) that requires the care, custody, and control be exclusive, and 2) standing is a necessarily fact-specific inquiry which is not properly established by judicial notice and the trial court should have permitted the Shifflets to testify to rebut the June 18 order’s factual findings, particularly since the Shifflets were not present at the June 10 habeas proceeding because they were not noticed.

As to the mother’s arguments that the Shifflets lacked standing to intervene under Chapter 153 and 156 of the Family Code because they were not parties to the 2009 order, the Court of Appeals relied on the holding in In re S.A.M., 321 S.W.3d 785, 790 (Tex.App.–Houston [14th Dist.] 2010, no pet.) which found that a non-relative’s right to daily telephone contact with the children in a prior order was sufficient interest to be “affected” under Section 156.002(a). The Court of Appeals found the Shifflets’ rights to telephone visitation in the prior order was sufficient and further, the record showed the parents agreed the children should live with the Shifflets for extended periods of time.

The mother also argued that the parental presumption under Chapter 153.131 should override the Shifflets’ interests but the Court of Appeals stated that presumption does not apply in Chapter 156 modification cases like this one.