
NO. 07-00-0456-CV

IN THE COURT OF APPEALS

FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO

PANEL D

AUGUST 31, 2001
______________________________

IN THE INTEREST OF
C. R. T., S. J. T., AND D. C. T., MINOR CHILDREN
_________________________________

FROM THE 72nd DISTRICT COURT OF CROSBY COUNTY;

NO. 6249; HON. BLAIR CHERRY, PRESIDING
_______________________________

Before BOYD, QUINN, and REAVIS, JJ.
	Appellant, Darla Timms (Darla), appeals from an Order Modifying the Parent-Child
Relationship and appointing Kimberly Abell (Kim), sole managing conservator of C.R.T.,
S.J.T., and D.C.T., minor children (collectively referred to as the children).  The order also
granted possessory conservatorship of the children to their biological mother and father,
Darla and Paul Timms (Paul). (1)   Via one issue, Darla argues the trial court abused its
discretion in denying her sole managing conservatorship of her children.
Background
	The children in question are the offspring of Darla and Paul Timms.  Though the
latter were married for approximately four years and divorced in February of 1995, only
one of the offspring, C.R.T., was born during the union.  The others, S.J.T. and D.C.T.,
were conceived thereafter. (2) 
	At the time of the divorce, Darla and Paul were appointed joint managing
conservators of C.R.T.  However, the boy, along with his oldest sister S.J.T., were left in
August of 1998, by their parents to reside with their aunt, Kim.  The latter agreed to take
the children because their parents were homeless drug addicts unable to feed them.  And,
though Darla repeatedly told Kim and the children that she would return for them, she
never did.  Instead, she conceived her youngest daughter, D.C.T., who she also left with
Kim in March of 1999.  At the time Kim assumed the care of D.C.T., the child was one
month old.  
	While Darla sporadically visited the children for brief stints of time and sometimes
gave them with toys, she never provided Kim with any financial assistance.  This may be
because she was only employed once during the period in which she was addicted to
drugs.  Furthermore, that job, which consisted of waiting tables at a bar wherein she and
Paul acquired their drugs, lasted for a short time.  
	Later in 1999 and at the age of 31, Darla decided to return to and live at her
parent's three bedroom house.  There resided not only her mother and father but also
Darla's oldest son, T.J.   In addition to returning to her parents house, Darla also began
working at their service station.  They did not pay her, however.  Instead, she worked for
the room and board. (3)  Nor did this 31 year old person drive after returning to her parents
house.  Whether she did so because she permitted her driver's license to expire or
whether the State canceled it is unclear; what is clear is that she had no driver's license
and had others drive for her.   
	After gaining possession of C.R.T., S.J.T., and D.C.T., Kim petitioned to become
permanent managing conservator of the children.  The court entered temporary orders
appointing her as same.  So too did it order Paul to pay $200 per month in child support
for the support of C.R.T. and S.J.T.  Subsequently, Darla was directed to pay $170 in
monthly support for D.C.T.  Testimony reveals that Darla never complied with that mandate
or sent Kim any funds.  Whether or not Paul acted similarly is unknown.   
	Eventually, the petition came for hearing.  Kim, Darla, and Paul appeared either
individually or through counsel.  After hearing the evidence and argument of all involved,
the trial court appointed Kim managing conservator.
Standard of Review
	Generally, when courts resolve questions regarding conservatorship, the best
interest of the child is the primary consideration.   Tex. Fam. Code Ann.  § 14.07(a)
(Vernon 1996);  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990).  Moreover, the trial
judge enjoys wide latitude in determining what those best interests are.  Gillespie v.
Gillespie, 644 S.W.2d 449 (Tex. 1992).  Indeed, we cannot interfere with his ultimate
decision unless we conclude that he abused his discretion in reaching it.  In Interest of
Doe, 917 S.W.2d 139, 141 (Tex. App.--Amarillo 1996, writ denied).  And, discretion is
abused only when the determination is arbitrary or unreasonable or fails to comport with
guiding rules and principles.  Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241-42 (Tex.1985)).  In other words, it is not enough for us to simply disagree with
the outcome.  Rather, we must conclude that the decision lacked basis in fact or law or
involved a misapplication of fact to law.    
	Next, in debating whether to appoint a parent or nonparent as managing
conservator, statute requires the court to presume that the best interests of a child lay in
appointing a biological parent.  Tex. Fam. Code Ann. § 153.131(a) (Vernon Supp. 2001). 
Yet, the presumption is rebuttable.  For instance, proof that such an appointment would
significantly impair the child's physical health or emotional development negates it, id.;
Brook v. Brook, 881 S.W.2d 297, 298 (Tex.1994), as does proof that the parent voluntarily
relinquished actual care, custody or control of the child for one year and the best interests
of the child would be served by appointing a nonparent as conservator.  Tex. Fam. Code
Ann. § 153.373(1) & (2); In re V.L.K., 24 S.W.3d 338, 341-42 (Tex. 2000).  
	Also, there is another situation wherein the presumption does not apply.  It concerns
the previous appointment of a managing conservator.  That is, if such a conservator was
previously appointed, the decision to modify that appointment is unaffected by the
presumption.  In re V.L.K., 24 S.W.2d at 342.  And, should that circumstance arise and
should the prior conservatorship be joint, the party seeking a modification need only show
that 1) the appointment of another would be a positive improvement for and be in the best
interests of the child and 2) the circumstances of the child, parent or conservator materially
or substantially changed which change rendered the current conservatorship unworkable
or inappropriate, the present living environment of the child may endanger the child's
physical health or significantly impair his emotional development, or the terms of the
existing conservatorship order were substantially and inexcusably violated.  Tex. Fam.
Code Ann. §156.203(1) & (2).
Application
 C.R.T.
	As previously mentioned, Darla and Paul were appointed joint managing
conservators of C.R.T. when they divorced.  Given this, the presumption that a natural
parent should remain conservator is inapplicable.  In re V.L.K., supra.  Furthermore, as
one of the initial managing conservators, Darla was obligated under statute, common law
and the divorce decree to care for, control, protect, and reasonably discipline the child. 
Tex. Fam. Code Ann. §153.074(1).  So too was she duty bound to support him financially,
physically, medically, and emotionally.  Id. at §153.074(2).  Despite these obligations
however, Darla voluntarily relinquished possession, care and custody of C.R.T. to Kim in
the summer of 1998.  Since that time, she has also failed to provide Kim or C.R.T. any
support.  None of these acts were excused or authorized by any trial court.  So too did they
violate the terms and conditions of the trial court's prior orders.  Given this, it can be said
that the elements of §156.203(1)(B) of the Family Code have been satisfied and that the
terms of the existing conservatorship order were substantially and inexcusably violated.
	Similarly, much of the same evidence serves to meet the criteria of §156.203(C). 
For instance, Darla has not supported her children over the years.  More importantly, she
deigns to work at a job which pays her no wage, and nothing appears of record suggesting
in any way that she owns sufficient assets which would allow her to financially support
C.R.T. (4)  Nor can she legally drive a motor vehicle, apparently by her own choice.  These
circumstances not only were non-existent when the trial court initially appointed her a joint
conservator of C.R.T. in 1995 but also are material changes which would have reasonably
allowed a trial court to conclude that its prior order had become unworkable or
inappropriate. (5) 
	To the foregoing we couple the evidence that C.R.T., and the other children, have
found stability, care, protection (both emotional and physical), and support (both financial
and emotional) in the home of Kim.  And, given this combined evidence, we conclude that
the trial court had basis to reasonably find that permitting Kim act as managing
conservator constituted a positive improvement for and was in the best interest of C.R.T. 
Thus, the trial court's decision evinced no abused discretion.


 S.J.T. and D.C.T.
	Unlike their brother C.R.T., S.J.T. and D.C.T. were not subject to the 1995 divorce
decree since they were born thereafter.  Nor can it be said that Darla voluntarily
relinquished actual care, control and possession of the two girls to Kim for a period of one
year given that Kim was appointed temporary managing conservator before that period
expired.  So, the presumption that a parent should be appointed managing conservator of
the two would initially apply.  Yet, evidence of record warranted the trial court's implicit
finding that the presumption was rebutted.  That evidence consisted of Darla's utter failure
to support her children though having the duty to do so by law, Bailey v. Bailey, 987
S.W.2d 206, 208 (Tex. App.--Amarillo 1999, no pet.); Tex. Fam. Code Ann. §153.074(2),
and temporary court order.  Furthermore, nothing of record begins to suggest that some
obstacle prevented her from earning a wage sufficient to assist in the provision of her
children.  Rather, her failure can be characterized as a refusal to obtain paying
employment and, thereby, support her children.  
	Furthermore, that her attitude and conduct towards her children would continue is
exemplified by her own words and acts.  As to the former, she testified that her parents
would provide the needed finances and that she intended to live with her children in her
parents' three bedroom house "forever."  This hardly suggests that she will assume the
obligation of supporting anyone, much less the children.  As to her acts, we again refer to
how she left the care of not only C.R.T., S.J.T., and D.C.T. but also her oldest boy, T.J., 
to others.  These recent prior actions, at the very least, constitute indicia permitting one
to reasonably gauge her future conduct viz-a-viz her children.  May v. May, 829 S.W.2d
373, 377 (Tex. App.--Corpus Christi 1992, writ denied).  
	Added to the evidence that Darla lacked ready means to personally support her
offspring and expected others to care for them is testimony that she failed to investigate
the medical condition of her children until told to do so by Kim, that this 31 year old person
could not legally drive her children anywhere (such as to school or to a doctor's office)
since she had no driver's license, and that she had been dependent upon intoxicating
substances for more than the majority of the lives of S.J.T. and D.C.T.  Failing to support
one's children has been considered indicia illustrating that appointment of the parent
would significantly impair the child's physical health.  Thomas v. Thomas, 852 S.W.2d 31,
35-36 (Tex. App.--Waco 1993, no writ).  So too has evidence physical abuse, severe
neglect, abandonment, drug and alcohol abuse, and very immoral behavior been deemed
indicative impairment upon the child's health.  Id.; May v. May, 829 S.W.2d at 376-77. 
Darla's drug problem, her abandoning C.R.T., S.J.T., and D.C.T. to Kim, her abandoning
T.J. to her parents, her failure to provide support to C.R.T., S.J.T. and D.C.T., her utter
dependence upon her parents for her well-being, and her exhibition of a want of personal
responsibility and emotional development are indicia of like ilk.  They too evince potential
impairment of health and emotional development sufficient to justify the appointment of a
third-party as managing conservator instead of a parent.  They also provide evidence
rebutting the presumption that Darla should be the managing conservator of S.J.T. and
D.C.T.  And, when coupled with the evidence of stability, support, and nurturing offered by
Kim, we cannot but find that the trial court's appointment of Kim constituted a positive
improvement, furthered the best interests of the children, and exemplified a legitimate
exercise of discretion. 


	Accordingly, the judgment executed below is affirmed.


  									Brian Quinn
									    Justice

Publish.
1. Paul did not appeal the order at issue.  
2. Prior to marrying Paul, Darla gave birth to a young male child, T.J.  She was sixteen at the time,
and whether the father was Paul or someone else is unknown.  Nevertheless, T.J. did not live with his mother
and Paul while they were married.  Instead, Darla left him with her parents to raise.  
3. Nothing of record suggests that Darla is unable to secure a job which pays its employees with
money instead of room and board.  Nor does the record reflect that she ever attempted to search for such
employment after returning to live with her parents.  Rather, the evidence reveals that her financial status
is of her own making.  And, when asked at trial about how she would support the children given her utter lack
of tangible income, she stated that her parents would provide for them and that she intended to live with her
parents "forever."  That she believes her parents would support the three children is of particular interest
since nothing of record indicates that they have ever provided Kim with any financial help since C.R.T.,
S.J.T., and D.C.T. began living with her.  Indeed, rather than attempt to gain possession of and care for her
youngest granddaughter after her birth, Darla's mother opted to have the child live with Kim and the other
children.  
4. To the extent that Darla opined that her parents would provide the needed financial backing, the
trial court could have easily rejected the proposition given the want of evidence suggesting that they had
provided any support to their grandchildren. 
5. That Darla 1) retreated to the home of her parents at the age of 31, 2) utterly relies upon them for
food, shelter, transportation and the like, and 3) looks to them to as the means of support for her children
is also troubling.  At the very least, it suggests that she herself lacks sufficient mental and emotional
development to care for and guide her offspring.  Needless to say, parenting is a joy and struggle.  All would
readily accept the joys inherent in parenting.  Yet, none should be permitted to avoid the duties owed their
children by voluntarily foisting the struggles upon others, as did Darla when she left not only C.R.T., S.J.T.,
and D.C.T. but also T.J. with others. 

