Opinions, April 26, 2016: Grandparent Standing & Disappearing Lawyers

On April 26, 2016, the Fourteenth Court of Appeals released a memorandum opinion in In re J.O.A., No. 14-14-00968-CV, reviewing a conservatorship and child support modification order, and a published opinion in a grandparent SAPCR, In re K.S., K.S., & C.S., No. 14-15-00008-CV.

In In re J.O.A., the trial court granted a conservatorship and child support order in the father’s favor and the mother appealed. All the issues on appeal flow from the fact that the mother’s lawyer did not appear at trial due to her supposed sudden illness. When the mother’s lawyer did not appear, the mother left the courtroom for a portion of the trial and, when she was present, did not participate in the proceedings because she stated she could not without her attorney.

The mother filed a motion for new trial, alleging her counsel was struck by a “fibroid attack.” But the mother’s counsel had failed to file a motion for continuance, present any details or medical information regarding her supposed illness to the trial court, failed to contact opposing counsel the day before trial, failed to send a representative to trial, and even failed to inform her own staff of her condition.

The Court of Appeals’ opinion is twenty pages long, full of factual recitation and detail, including multiple excerpts from the transcripts of the trial and the hearing on mother’s motion for new trial. Long story short, the judgment of the trial court was affirmed because the mother’s counsel could not establish that her non-appearance was not the result of conscious indifference (i.e. the first prong of the Craddock test).

In In re K.S., K.S., and C.S., after a bench trial, the trial court signed an order appointing appellee Esther SMC of her minor grandchildren. The children’s parents, Michael and Diana, who were named possessory conservators, appealed, challenging both Esther’s standing and the merits of the trial court’s decision. The Court of Appeals affirmed.

Michael and Diana had nine children, ages 11 to 28. When Esther filed her original petition seeking SMC of the children, five of the children were minors. Now only three–K.S., K.S., and C.S.–are. From 1990 to 2011, Michael, Diana, and their children lived at Esther’s house in Hockley, Texas. While the parents and the children lived in the “main” house, Esther and her husband lived in the attached “mother-in-law” suite. Esther spent her days in the main house, caring for the children’s daily needs (food, clothing, bathing, transportation, homework, and medical care). Esther and her late husband also financially supported Michael and Diana in this time.

In August 2011, a dispute arose between Michael and Esther and Michael ordered Esther to leave. Esther and the seven oldest children hastily packed and left. Michael then changed the locks on the property and did not allow Esther or any of the children access to the home. Representatives from TDFPS later met with Esther, Michael, Diana, and the children. The parties agreed to a family safety plan which prohibited Michael from contacting the children.

On September 19, 2011, Esther filed a SAPCR, requesting the trial court appoint her SMC and that Michael and Diana’s visitation be supervised. Her petition included an affidavit alleging Michael verbally and physically abused the children and Diana was unable or unwilling to protect the children from him.

Temporary orders appointed Esther SMC and Michael and Diana temporary possessory conservators. The order granted Diana visitation as agreed upon by the parties but Michael was ordered to have no contact with the children. The trial court subsequently modified the TO, granting Diana visitation with the children through SAFE and found credible evidence Michael had a history or pattern of physical abuse or family violence. The parties were ordered to submit to a psychological evaluation.

After a bench trial, the trial court’s final order appointed Esther SMC of the three minor children and the parents PCs. A modified possession order granted the parents restricted access to the children due to the trial court’s finding that they engaged in a history or pattern of neglect and/or physical abuse of the children. Again, Diana was granted visitation through SAFE, but Michael was ordered to have no visitation or access to the children. The parents appealed.

Michael and Diana’s first issue concerns Esther’s standing to bring the suit. Esther asserted she had standing under Tex. Fam. Code §102.003(a)(9) which permits a person who has had actual care, control, and possession of the children for at least six months ending not more than 90 days preceding the date of suit. There was, simply put, an abundance of evidence that Esther was the primary caregiver for the children for the decades they lived together, including the testimony of the psychologist, members of the family’s church, a scout leader, and three of the no-long-minor children themselves. The parents’ first issue was overruled.

The parents also challenged the appointment of Esther as SMC. The Court of Appeals noted that if the trial court found that Michael and Diana abused or neglected the children, it would be prohibited from appointing the parents as managing conservators. The Court of Appeals then recited a litany of trial testimony that indicated mostly Michael, but also Diana, physically abused and were violent to the children. The issue was overruled.

Finally, Michael and Diana argued the trial court abused its discretion in deviating from the Standard Possession Order to grant them less possession and access. I think you know where this is headed. Two words: best interest. Affirmed.








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