

 
 
Reversed and Remanded and Opinion filed July 19, 2011.
 
In The
 
Fourteenth Court of
Appeals
___________________
 
NO. 14-10-00262-CV
___________________
 
In the Interest of J.C. and S.C., Minor
Children

 

 
On
Appeal from the 309th District Court
Harris County,
Texas

Trial Court Cause No. 2006-79577
 

 
 
OPINION
            This appeal arises from a custody dispute involving
J.C., now an eight-year-old girl, and S.C., her thirteen-year-old brother.
Their mother, Socorro Angel, died tragically in November 2006. Her death was
ruled a homicide, and her husband, Adan Covarrubias, was charged with her
murder. Although the murder charge was eventually dropped, Covarrubias was held
in police custody following his subsequent arrest on unrelated immigration
violations.
            During
Covarrubias’s period of detention, the children remained in the temporary
custody of Bonita Rubio, their paternal grandmother, and Leopoldo and Alvina
Angel, their maternal grandparents. The Angels petitioned for managing
conservatorship in December 2006. Because of the ongoing investigations into
Covarrubias’s immigration status and the death of his wife, a hearing on the
merits was not conducted until three years after the filing of the petition.
Following the recommendation of a child psychologist, the trial court
ultimately rendered judgment by separating the children in a split-custody
arrangement. Regarding J.C., the Angels and Covarrubias were appointed joint
managing conservators, with the Angels receiving the right to determine her
primary residence. As to S.C., the Angels’ petition was denied and Covarrubias
was awarded all rights and duties as a parent.
In his sole issue on
appeal, Covarrubias contends the trial court abused its discretion by naming
the Angels joint managing conservators of J.C. The Angels have not
cross-appealed the trial court’s decision regarding S.C. We reverse.
BACKGROUND
            At
the time of their mother’s murder, J.C. was four years old and S.C. was eight.
A temporary order was entered in March 2007, appointing Rubio and the Angels as
temporary joint managing conservators of the children. The order was modified
in May 2008, sometime after Covarrubias’s release from police custody. Under
the terms of the modified order, Covarrubias was to have possession of J.C. two
nights each week, with the Angels having possession at all other times. The
order further stated that the Angels were to have possession of S.C. only upon
S.C.’s request. In May 2009, the order was modified a second time to afford
Covarrubias extended periods of possession with his daughter.
            A
hearing on the merits was conducted in December 2009. By that time, J.C. had
been living with the Angels for more than two and a half years. The Angels had
not seen S.C., however, since early 2007, just a few months after his mother’s
death. The children’s psychologist, Carol Stevens, recommended that S.C. should
not be ordered to stay with the Angels. According to Stevens, S.C. maintained a
close relationship with his father and he feared losing Covarrubias to the
Angels. S.C. was particularly afraid that Mr. Angel might kill Covarrubias, a
threat he apparently made in the presence of S.C. on the first anniversary of
Socorro’s death.
            During
the hearing, Stevens also testified that J.C. should remain in the custody of her
grandparents. Stevens found that J.C. had developed a separation anxiety
disorder following her mother’s death, and based on her professional
observations, the target of J.C.’s disorder was the potential loss of her
maternal grandmother. Stevens feared that uprooting J.C. from Mrs. Angel would
not be in the child’s best interest. Indeed, if J.C. were to be taken away from
the Angels, Stevens testified that “the child will suffer, her emotional health
will suffer.”
            Although
Covarrubias repeatedly denied any involvement in his wife’s murder, Socorro’s
family suggested that she still may have suffered at the hands of his abuse.
For example, Mrs. Angel testified she once saw bruises on Socorro. Catalina
Morgan, Socorro’s cousin, also claimed that she observed scratches on Socorro’s
neck several years before her death. Neither witness could testify as to the
exact cause of the injuries, though both claimed that Socorro was afraid of her
husband. In fact, Socorro specifically told Morgan that she was afraid of
Covarrubias hitting her. In demonstrating this fear, Morgan recounted one
discussion where Socorro offered to buy an expensive necklace for Morgan’s
daughter. Socorro had fought with her husband over money in the past, and
Socorro allegedly warned Morgan, “It’s only one thing that I don’t want you to
say anything to nobody because I don’t want him to know because we will get
into a big argue [sic] again and he might hit me this time and I might left
[sic].”
            The
trial judge conducted an in camera, off-the-record interview with J.C. In open
court, the trial judge stated that his decision was based on the witness
testimony and his observation of the child during that session in chambers. The
trial judge explicitly cited Stevens’s recommendation in finding that uprooting
J.C. from the Angels would cause “some emotional danger to the child” or an
“immediate threat of some sort of damage.” 
            Covarrubias
timely filed a motion for new trial and a request for findings of fact and
conclusions of law. The motion for new trial was overruled by operation of law,
and findings of fact and conclusions of law were never entered. This appeal
followed.
STANDARD OF REVIEW
            The
trial court is afforded broad discretion in deciding the conservatorship of a
child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We
review its judgment for an abuse of that discretion. In re A.L.E., 279
S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.). In light of this
standard, the Angels assert that we should affirm the judgment summarily on
procedural grounds. They allege that Covarrubias ordered an incomplete record
on appeal, and therefore, they believe that we must dispose of this case under
the presumption that “the omitted portions of the record are relevant and
support the trial court’s judgment.” Mason v. Our Lady Star of Sea Catholic
Church, 154 S.W.3d 816, 819 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
The “omitted portions”
to which the Angels refer are transcripts of earlier proceedings on the
temporary orders. Copies of these transcripts were never admitted into evidence
during the trial on the merits. Nevertheless, the trial court granted the
Angels’ request to take judicial notice of the proceedings, and thus, the
Angels contend the trial court relied on testimony from those proceedings in
reaching its final decision.
            Contrary
to the Angels’ assertion, the trial court may not judicially notice any
testimony from a prior hearing on a temporary order unless such testimony is
properly admitted into evidence. See May v. May, 829 S.W.2d 373, 376
(Tex. App.—Corpus Christi 1992, writ denied); Malekzadeh v. Malekzadeh,
Nos. 14-05-00113-CV & 14-06-00341-CV, 2007 WL 1892233, at *12 (Tex.
App.—Houston [14th Dist.] July 3, 2007) (mem. op.); see also Guyton v.
Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.)
(“In order for testimony from a prior hearing or trial to be considered in a
subsequent proceeding, the transcript of that testimony must be properly
authenticated and entered into evidence.”). Any judicial notice that the trial
court took regarding the prior hearings in this case was therefore improper. See
Guyton, 332 S.W.3d at 693. Accordingly, we do not consider the transcripts of
the prior hearings “omitted” from the record as they were never included among
the evidence actually admitted.
The appellate record
before us consists of the underlying clerk’s record and the reporter’s record
of the trial on the merits. We have determined that the appellate record is
complete, and we therefore examine the trial court’s decision under the only
applicable standard of review: abuse of discretion.
            The
trial court abuses its discretion when its decision is arbitrary, unreasonable,
or without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). Under this
standard, issues relating to the legal and factual sufficiency of the evidence
are not independent grounds of error, but only factors used in assessing
whether the trial court abused its discretion. In re R.T.K., 324 S.W.3d
896, 899–900 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). The trial
court does not abuse its discretion so long as the record contains some
evidence of substantive and probative character to support its decision. In
re C.A.M.M., 243 S.W.3d 211, 214 (Tex. App.—Houston [14th Dist.] 2007, pet.
denied).
In this case, the trial
court did not enter findings of fact and conclusions of law. Comments made by the
trial court during rendition are no substitute for these findings, and we may
not consider them as such. In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984)
(per curiam); Huang v. Don McGill Toyota, Inc., 209 S.W.3d 674, 679
(Tex. App.—Houston [14th Dist.] 2006, no pet.). In the absence of written
findings, we imply that the trial court made all necessary findings and we will
uphold the judgment on any legal theory supported by the evidence. Worford
v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); Chenault v. Banks, 296
S.W.3d 186, 189 (Tex. App.—Houston [14th Dist.] 2009, no pet.).
Moreover, under binding
precedent, the failure to make a transcript of J.C.’s in camera interview does
not make the record incomplete, and thus, we do not presume that any facts
arose during the interview in support of the trial court’s judgment. Forbes
v. Wettman, 598 S.W.2d 231, 232 (Tex. 1980).
CONSERVATORSHIP OF THE CHILD
            In
his only issue on appeal, Covarrubias argues that the trial court abused its
discretion by appointing the Angels joint managing conservators with the right
to determine the primary residence of J.C.
In any case involving an
issue of conservatorship, the best interest of the child must always be the
primary consideration of the trial court. Tex. Fam. Code Ann. § 153.002
(West 2008). Under Section 153.131, which codifies the common law’s “parental
presumption,” the court must presume that the best interest of the child is
served by appointing a parent as sole managing conservator or both parents as
joint managing conservators. See id. § 153.131(a); see also In
re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Mumma v. Aguirre, 364
S.W.2d 220, 221 (Tex. 1963); Legate v. Legate, 28 S.W. 281, 282 (Tex.
1894). Nonparents carry a “heavy burden” of overcoming this presumption. Lewelling
v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). It is no longer adequate to
offer evidence that the nonparent would be a better custodian of the child. Id.
Instead, the parental presumption may only be rebutted with proof of certain
findings prescribed by statute.
A nonparent may rebut
the presumption if evidence is produced showing that appointment of the parent
as managing conservator would “significantly impair the child’s physical health
or emotional development.” Tex. Fam. Code Ann. § 153.131(a); see R.T.K.,
324 S.W.3d at 902–03. A nonparent may also overcome the presumption by
producing evidence of “a history or pattern of past . . . physical . . . abuse
by [a] parent directed against the other parent, a spouse, or a child.” Tex.
Fam. Code Ann. § 153.004(b). In disputes between a parent and a nonparent,
the legislature has mandated that “close calls” should be decided in favor of
the parent. Lewelling, 796 S.W.2d at 168.
In naming the
grandparents joint managing conservators of J.C., the trial court determined
that the Angels had overcome the parental presumption. The court, however, did
not specify the basis for that rebuttal with written findings of fact and
conclusions of law. Without findings, the Angels argue that the judgment can be
supported on either of two legal theories. First, they contend the evidence
establishes that the appointment of Covarrubias as sole managing conservator
would significantly impair the emotional development of J.C. In the
alternative, they contend the evidence shows that Covarrubias committed acts of
domestic violence against his deceased wife. The parental presumption would be
rebutted under either scenario, and according to the Angels, the evidence would
further demonstrate that the best interest of the child is served by not
uprooting her from her home of the past two and a half years. We find both
arguments unsupported by the record.
Significant Impairment of Emotional Development
Under Section 153.131(a)
            Carol
Stevens supplied the only testimony regarding J.C.’s emotional development and
the impairment it would suffer based on a determination of conservatorship. As
J.C.’s psychologist of nearly two years, Stevens testified that the child’s
“emotional health will suffer” if she were taken away from the care of her
maternal grandparents. Stevens explained that removing J.C. from the Angels
“would increase her issues with her separation anxiety even more.” However,
Stevens did not describe how, or even if, the child would suffer any impairment
that could be characterized as “significant.” Stevens merely cited the child’s
“strong connection” to her maternal grandmother as proof that the child’s
emotional health would suffer to some unspecified degree. In announcing its
decision to appoint the Angels and Covarrubias as joint managing conservators,
the trial court stated that “there would be some emotional danger to the child
or I think immediate threat of some sort of damage” if custody were stripped
from the grandparents.
            As
a reviewing court, we may consider concepts of psychological parenting,
bonding, and the depth of attachments to parental figures in the context of the
evidence presented. See In re De La Pena, 999 S.W.2d 521, 529 (Tex.
App.—El Paso 1999, no pet.). We recognize that safety, security, and stability
are factors critical to child welfare, and depending on the circumstances of
each case, the danger from uprooting a child may rise to the level of
significantly impairing the child’s emotional development. Id.
Significant impairment has been inferred from uprooting a child from a
nonparental caretaker when the removal would be “devastating” or akin to
“psychological amputation” or cause “serious psychological damage.” See In
re Rodriguez, 940 S.W.2d 265, 273 (Tex. App.—San Antonio 1997, writ
denied). But no such testimony was produced in this case.
            Although
the record contains some testimony that uprooting J.C. from the Angels would exacerbate
her separation anxiety and be harmful to her sense of loss, in no way does the
evidence establish that such harm would cause a significant impairment to her
emotional development. The evidence also fails to establish that any of the
child’s visits with her father resulted in disruptive or uncharacteristic
behavior, or that she suffered any sort of impairment because of her time away
from her grandparents. See De La Pena, 999 S.W.2d at 533; see also
R.T.K., 324 S.W.3d at 902–03 (examining the effect of an appointment on the
child’s physical health or emotional development). On the facts of this case,
the evidence is insufficient to rebut the parental presumption under Section
153.131(a). See De la Pena, 999 S.W.2d at 532.
At best, when
considering Stevens’s testimony, the only evidence in favor of appointing the
Angels as joint managing conservators is the longevity of J.C.’s stay with
them. Though her current placement with the Angels has been successful in some
respects, the evidence does not show that the child’s physical health or
emotional development would be significantly impaired were she to live with her
father and brother.
Domestic Violence Under Section 153.004(b)
The Family Code
establishes a “rebuttable presumption that the appointment of a parent as the
sole managing conservator . . . is not in the best interest
of the child if credible evidence is presented of a history or pattern of past
or present child neglect, or physical or sexual abuse by [a] parent directed
against the other parent, a spouse, or a child.” Tex. Fam. Code Ann. § 153.004(b).
Notwithstanding the evidence regarding the child’s emotional impairment, the
Angels argue that the trial court’s judgment can be supported by an implied
finding that Covarrubias was physically abusive towards his wife. We disagree.
Mrs. Angel testified
that she once observed bruises on Socorro. Catalina Morgan, Socorro’s cousin,
testified that she also saw scratches on Socorro’s neck. Morgan further
testified that Socorro expressed a fear that Covarrubias “might” hit her if she
purchased an expensive necklace. Morgan did not supply any context or detail
for this statement. There is no testimony that anyone saw Covarrubias hit his
wife, nor is there testimony that Socorro ever complained of physical abuse in
the past. Likewise, the record contains no evidence that any of the bruising or
scratching was attributable to Covarrubias. Although the record reveals that
Socorro once feared that Covarrubias would hit her, evidence of fear, without
more, is insufficient to support a finding that a person has a history or
pattern of direct physical abuse. See id.; Baltzer v. Medina, 240
S.W.3d 469, 474–75 (Tex. App.—Houston [14th Dist.] 2007, no pet.).
CONCLUSION
            As
nonparents seeking managing conservatorship, the Angels were required to
establish by a preponderance of the evidence that the parental presumption was
overcome. The Angels contend that the presumption was rebutted by implied
findings that the appointment of Covarrubias as managing conservator would
significantly impair the emotional development of J.C., and that Covarrubias
had a history or pattern of physical abuse directed against his wife. We have
reviewed the evidence in the light most favorable to those findings, which
Covarrubias has now challenged on appeal. After indulging every reasonable
inference in the record that would support the findings, crediting favorable
evidence if a reasonable fact-finder could, and disregarding contrary evidence
unless a reasonable fact-finder could not, we conclude that the record is
without any evidence sufficient to overcome the parental presumption.
Therefore, the trial court abused its discretion in naming the Angels joint
managing conservators with the right to determine the primary residence of J.C.
            We
reverse the judgment of the trial court and remand for that court to render
judgment naming Covarrubias, as the natural parent, sole managing conservator
of his daughter. The provisions of the trial court’s judgment regarding S.C.
should remain the same. The trial court may find it necessary to conduct
further hearings on matters relating to the terms and conditions for possession
of J.C. See Lewelling, 796 S.W.2d at 168–69.
                                                                                    
                                                                        /s/        Tracy
Christopher
                                                                                    Justice
 
 
Panel consists of Chief Justice Hedges and Justices
Frost and Christopher.

