                                                                                         ACCEPTED
                                                                                    05-15-00114-CV
                                                                          FIFTH COURT OF APPEALS
                                                                                    DALLAS, TEXAS
                                                                              2/18/2015 11:49:04 AM
                                                                                         LISA MATZ
                                                                                             CLERK

                  NO. 05-15-00114-CV
___________________________________________________
                                                                 FILED IN
                                                          5th COURT OF APPEALS
           In the Court of Appeals for the Fifth District of DALLAS, TEXAS
                           Texas at Dallas                2/18/2015 11:49:04 AM
    _____________________________________________                LISA MATZ
                                                                   Clerk

                IN THE INTEREST OF H.W.G., A CHILD

                             MICHAEL GIBB,
                                       Appellant,

                                      v.

                       EMILY STEPHENS
                                   Appellee.
         ___________________________________________

                         On Appeal from the
        366th Judicial District Court of Collin County, Texas
                     Cause No. 366-55837-2009
___________________________________________________

  APPELLANT’S REPLY BRIEF IN SUPPORT OF MOTION TO
    SUSPEND TRIAL COURT’S ORDER PENDING APPEAL
___________________________________________________

TO THE FIFTH DISTRICT COURT OF APPEALS:

         Mother really has no substantive response to the motion to suspend

order.

         First, Mother does not even attempt to argue that suspending the

order would harm or be unfair either to her or the child. The closest she can

come is a passing, unexplained reference to “an agreement contrary



                                                                                001
thereto.” But she does not explain what this means. And, as the transcript

excerpts attached to Father’s motion make clear (and Mother does not

dispute), returning her to the previous access is entirely consistent with that

agreement.

      Second, Mother does not attempt to dispute her recent history of drug

abuse, her agreement to the strict terms tying unsupervised access to a

period of clean drug tests, her failure to meet those strict terms, or the

possible resulting danger to the child.

      All Mother really says is (1) the trial court found Step 4 access to be in

the child’s best interest, and (2) the trial court is scheduled to take this

matter under advisement in March. Neither contention is accurate, and

neither is relevant.

      First, the trial court did not, either in its order or in its on-the-record

discussion of that order, state that Step 4 access was in the child’s best

interest. All the trial court mentioned on the record was “continuous serious

conflict” between the parents—a matter having nothing to do with drug

testing and possession under the prior judgment. The order says only that

Mother has satisfied the prerequisites for Step 4 access—something so




                                                                                002
obviously untrue that not even Mother made that claim in the trial court (or

in her response to this motion).

       Second, Mother’s pending request for temporary orders on appeal

concerns matters entirely unrelated to suspension of the order on appeal

(which only makes sense—why in the world would Mother, as Appellee,

seek temporary orders suspending the order on appeal?). The trial court’s

resolution of the request for temporary orders has nothing to do with the

relief sought by this motion.1

       Finally, the trial court’s statements during the hearing made clear the

futility of seeking suspension of the order. Rather than waste his money and

the trial court’s time, Father instead sought relief from this Court—as the

Family Code explicitly permits.

       The Family Code authorizes relief “on a proper showing.” TEX. FAM.

CODE ANN. § 109.002(b). Mother claims Father did not make a proper

showing. Again, however, she never provides any basis for this argument.

Father made a showing that Mother’s recent drug use poses a risk to the

child, and that suspending the order will not negatively affect Mother or the

child, or deny them time together.
1
 Mother attached a copy of the motion to her response. The motion concerns complaints
Mother has about access under the order, and has nothing to do with suspending it
pending appeal.



                                                                                        003
      In light of Mother’s failure to identify any real reason not to grant

relief, Father asks that this Court err on the side of caution and protect the

child by suspending the order.

                                 Respectfully submitted,

                                 /s/Charles “Chad” Baruch
                                 Texas Bar Number 01864300
                                 THE LAW OFFICE OF CHAD BARUCH
                                 3201 Main Street
                                 Rowlett, Texas 75088
                                 Telephone: (972) 412-7192
                                 Facsimile: (972) 412-4028
                                 Email: baruchesq@aol.com

                                 Counsel for Relator

                         Certificate of Compliance

      This brief was prepared using Microsoft Word for Mac. Relying on the
word count function in that software, I certify that this motion contains 501
words (excluding the case caption, signature block, and certificates).

                                       /s/Charles “Chad” Baruch




                                                                             004
                          Certificate of Service

      The undersigned counsel of record certifies that a true copy of this
instrument was served in accordance with Rule 9.5 of the Texas Rules of
Appellate Procedure on each party or that party’s lead counsel on February
18, 2015, as follows:

Charles C. Phillips
Philips & Epperson, LP
2301 Virginia Parkway
McKinney, Texas 75071
By email to:
rcollins@philipsandepperson.com

                                    /s/Charles “Chad” Baruch




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