                                    NUMBER 13-09-00255-CV

                                    COURT OF APPEALS

                         THIRTEENTH DISTRICT OF TEXAS

                            CORPUS CHRISTI - EDINBURG
____________________________________________________________

DAVID GRAY,                                                                                Appellant,

                                                     v.

ANN WOOD SHOOK,                                     Appellee.
____________________________________________________________

              On appeal from the 24th District Court
                   of Victoria County, Texas.
____________________________________________________________

                                   DISSENTING OPINION
                      Before Justices Yañez, Benavides, and Vela
                         Dissenting Opinion by Justice Yañez
        I respectfully dissent to the majority’s conclusion that the trial court abused its

discretion in this case. A trial court does not abuse its discretion when there is some

evidence of a substantive and probative character to support its decision.1 In some

cases, the parental presumption can be rebutted by other evidence establishing the
        1
             Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.–Houston [1st Dist.] 2007, no pet) (op.
on reh’g).
statutorily required negative effect on the child even when there is no evidence

establishing any particular blameworthy act of the parent.2 "Because safety, security,

and stability are critical to child development, the danger of uprooting a child may in

some instances rise to a level that significantly impairs the child's emotional

development."3

        Here, Green testified that G.W. suffers from separation anxiety, a condition she

defined as a fear of being separated from either the parent or person of significance.

Green testified that G.W. considers Shook her “primary parent” and feels “safe” in

Shook’s home. The evidence showed that G.W. has lived with Shook since she was

born and has never known another home.

        Green stated that stability and consistency are very important to a child who

experiences anxiety. Green testified that consistency is also an important factor in

bonding with a child and that when there are infrequent visits or large gaps between the

visits, bonding will not occur. Green opined that a child is unable to bond with a person

who only visits the child three or four times per year. The evidence showed, although

contradicted by Gray, that he had only visited G.W. three or four times per year since he

moved away from Texas.4 Furthermore, according to Green, G.W. viewed Gray as a

stranger, and Gray has not bonded with G.W. because he has not spent enough time
        2
          In re G.R.W., 191 S.W.3d 896, 900 (Tex. App.–Texarkana 2006, no pet.) (“In fact, even without
evidence establishing any blameworthiness of the parent, the parental presumption can be rebutted by
other evidence establishing the statutorily required negative effect on the child.”); In re Rodriguez, 940
S.W.2d 265, 273-75 (Tex. App.–San Antonio 1997, writ denied) (concluding that nonparent had rebutted
parental presumption solely by producing evidence that the effect on the child of being removed from the
only home she had ever known would be “devastating”).
        3
         Chavez v. Chavez, 148 S.W.3d 449, 458-59 (Tex. App.–El Paso 2004, no pet.) (citing De La
Pena, 999 S.W.2d at 529).
        4
           I note that Green testified that even visits with a child once every two months, as Gray claimed
he did, is inadequate for bonding to occur.


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with her. Green stated that in order to bond with G.W., more frequent contact was

necessary.

       According to Green, after visiting Gray, G.W. has vomited due to her anxiety.

Green testified that G.W. would “freak out” if she was removed from Shook’s home and

that she would vomit, scream, and cry. Due to G.W.’s separation anxiety, Green stated

that the added stress of removing her from Shook’s home could cause numerous

problems for G.W.

       Shook testified that G.W. has lived in her home since she was born, that she has

been “raising” G.W. for approximately a year-and-a-half, and that G.W. spends more

time with Shook than with Lucy. According to Shook, it would significantly impair G.W.’s

physical health if Gray was appointed managing conservator because G.W. would be

removed from the “only home she’s ever known.” Shook testified that G.W. had never

been away from Shook, Shook’s husband, or Lucy for more than “a night or two.”

Shook stated that G.W. has bonded with her and that it would be “devastating” to G.W.

if she were removed from Shook’s home.             Shook testified that G.W. would suffer

harmful effects if removed from her home because she would not have any family

support in Seattle.     Shook stated that appointing Gray managing conservator and

removing G.W. from Shook’s home would have harmful effects.

       In this case, there was evidence presented that the danger of uprooting G.W.

from Shook’s home would significantly impair G.W.’s physical health and emotional

development.5 Therefore, the trial court could have reasonably concluded from the

evidence that appointing Gray managing conservator would have the statutorily required

       5
         See In re G.R.W., 191 S.W.3d at 900; Chavez, 148 S.W.3d at 458-59; In re Rodriguez, 940
S.W.2d at 273-75.


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negative effect on G.W.6            Because there is some evidence of a substantive and

probative character to support the trial court’s decision, I believe that the trial court did

not abuse its discretion by concluding that Gray’s appointment as managing

conservator      would      significantly    impair       G.W.’s    physical     health     or   emotional

development.7 Therefore, I would affirm the trial court’s judgment.




Delivered and filed the
30th day of November, 2010.




        6
           See TEX. FAM. CODE ANN. § 153.131; In re G.R.W., 191 S.W.3d at 900; Chavez, 148 S.W.3d at
458-59; De La Pena, 999 S.W.2d at 529 (“We also agree that because safety, security, and stability are
critical to child development, the danger of uprooting a child may in some instances rise to a level that
significantly impairs the child's emotional development.”); In re Rodriguez, 940 S.W.2d at 270-75; see
also In the Interest of R.T.K., No. 14-08-00948-CV, 2010 Tex. App. LEXIS 7098, at *24 (Tex. App.–
Houston [14th Dist.] Aug. 31, 2010, no pet. h.) (mem. op.) (concluding that the record sufficiently
supported the trial court’s conclusion that the nonparent rebutted the presumption found in section
153.131(a) because based on the evidence presented, the trial court could have reasonably concluded
that removal of the child from “the only home he has known” would significantly impair his emotional
development).
        7
          See Whitworth, 222 S.W.3d at 623; see also In the Interest of C.A.M.M., 243 S.W.3d at 214-15
(“But the fact that a trial court may decide a matter within its discretionary authority in a different manner
from an appellate court in a similar circumstance does not demonstrate an abuse of discretion.”) (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).


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