

Appellant’s Motion for Rehearing Denied; Affirmed; Opinion of August 31,
2010, Withdrawn and Substitute Opinion filed November 2, 2010.
 
In The
 
Fourteenth Court of
Appeals
___________________
 
NO. 14-08-00948-CV
___________________
 
In THE INTEREST OF R.T.K., A
Child

 

 
On
Appeal from the 312th District Court
Harris County,
Texas

Trial Court Cause No. 2006-40812
 

 
 
SUBSTITUTE OPINION
We deny
appellant’s motion for rehearing, withdraw the opinion issued in this case on
August 31, 2010, and issue this substitute opinion in its place.
This appeal arises from
a child-custody dispute.  Appellant, Heidi Blunt, is the biological mother of
R.T.K., a 12-year-old boy.  She was briefly married to the boy’s father, Dean
Kelly, but their volatile marriage ended in 1999, before the child’s second
birthday.  Under an agreed conservatorship order, Dean was appointed sole
managing conservator of R.T.K.  Heidi, by contrast, was named possessory conservator
and granted only supervised visitation rights.
Over the next few years,
Heidi frequently failed to exercise her visitation rights.  In her absence, her
son was brought up almost exclusively by Dean and his new wife, appellee Stacie
Kelly, whom he married in 2001 when R.T.K. was three years old.
In 2006, Dean suddenly
passed away while on a camping trip with Stacie and R.T.K.  Following his
death, Stacie and Heidi both sought to be named as the boy’s managing
conservator.  After a lengthy bench trial, the court appointed Stacie sole
managing conservator but kept Heidi’s status as a possessory conservator.  In
support, the court expressly found that appointment of Heidi as managing
conservator, solely or jointly, would significantly impair R.T.K.’s physical
health and emotional development.
Heidi has appealed that
ruling.  In two issues, she contends the trial court abused its discretion, and
violated her constitutional rights, by declining to appoint her sole managing
conservator.  We affirm.
I.
Background
The appellate record is
not very flattering to Heidi.  However, because her appellate issues raise the
question of her fitness as a parent, we are compelled to discuss details of her
personal and criminal problems over the relevant time period.  To the extent
she testified to a different version of these events, we are required, under
the pertinent standard of review, to consider the evidence in the light most
favorable to the trial court’s findings of fact.  See City of Keller v.
Wilson, 168 S.W.3d 802, 822–23 (Tex. 2005).  The following facts are
presented in that fashion.
R.T.K., the child
subject to this custody dispute, was born on January 19, 1998.  The volatile
marriage between his parents, Dean and Heidi, did not last long.  They
separated only three months after he was born, at a time when Heidi was facing
criminal charges because she had assaulted Dean on at least two occasions. 
Heidi responded to the separation by working as an “escort” to more than eighty
different men.  Sometime after learning of Heidi’s new occupation, Dean filed
for divorce on the grounds of cruelty by Heidi.
In October 1999, the
trial court granted Dean’s request for a divorce and found Heidi had, in fact,
engaged in cruel treatment of him.  By agreement of the parties, Dean was
appointed sole managing conservator of R.T.K., and Heidi was named a possessory
conservator.  However, Heidi was allowed only supervised visitation with
her son, to be overseen by Heidi’s grandmother, Jane Bright.
For the next few years,
Heidi did not take much of an active role in her son’s early life.  She
frequently failed to exercise her visitation rights and, when she did, she reportedly
spent much of that time on the computer, leaving her grandmother to play with
R.T.K.  At one point, Heidi had not seen her son in more than two years.
Meanwhile, Dean had
married Stacie in 2001.  R.T.K. continued to live with them and, over the next
several years, the boy bonded with Stacie and came to regard her as his “mom.”
In 2004, Heidi
successfully lobbied the trial court to grant her unsupervised visitation
rights.  However, she did not request joint custody of R.T.K., who continued to
reside with Stacie and Dean.
In 2006, Dean suddenly
died of a heart attack while on a camping trip with Stacie and R.T.K., who was
then in the third grade.  On the date of Dean’s funeral, Heidi showed up
unannounced at Stacie’s house, and then at the funeral home, angrily demanding
that Stacie surrender R.T.K. to her.  After several confrontations with family
members at both locations, Heidi had to be escorted from the funeral home by
police officers.
Stacie filed suit seeking
to be appointed as her stepson’s managing conservator, either solely or jointly
with Heidi.  Heidi counterclaimed, seeking modification of the earlier custody
order and asking to be named R.T.K.’s sole managing conservator.
The case proceeded to a
lengthy bench trial that spanned several months and featured numerous
witnesses.  At its conclusion, the trial court appointed Stacie sole managing
conservator, and Heidi as possessory conservator.  In support, the court issued
findings of fact and conclusions of law, in which it found, among other things,
that appointment of Heidi as a managing conservator would significantly impair
R.T.K.’s physical health and emotional development.  
Heidi has appealed the
trial court’s refusal to appoint her as sole managing conservator.  In two
issues, Heidi contends the trial court abused its discretion because its ruling
is not adequately supported by sufficient evidence in the record.  Stacie
contends that sufficient evidence supports the trial court’s determination.
The parties’
disagreement regarding sufficiency of the evidence reflects a deeper
disagreement about the proper characterization of Stacie’s suit seeking
appointment as R.T.K.’s managing conservator following Dean’s death.
Heidi contends that the
evidence is insufficient to support appointment of Stacie as sole managing
conservator because Stacie failed to overcome a “parental presumption”
contained in section 153.131(a) of the Texas Family Code.  Heidi invokes section
153.131 and asserts that Stacie’s suit was an original conservatorship proceeding
that is subject to the parental presumption.  See In re V.L.K., 24
S.W.3d 338, 343 (Tex. 2000).
Stacie, in contrast,
contends that her suit sought to modify a prior conservatorship determination and
was not an original conservatorship proceeding.  Stacie thus seeks to cast her
suit as a modification action governed by chapter 156 of the Family Code, to
which no parental presumption applies.  See id.
II.
Standard of
Review
Because the trial court
is granted broad discretion to decide the best interests of a child in
family-law matters, we review its custody order for an abuse of that
discretion.  See In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston
[14th Dist.] 2009, no pet.); In re Smith, 260 S.W.3d 568, 574 (Tex.
App.—Houston [14th Dist.] 2008, orig. proceeding).  Generally, a trial court
abuses its discretion by acting arbitrarily, unreasonably, or without reference
to any guiding rules or principles.  See Swaab v. Swaab, 282 S.W.3d 519,
524 (Tex. App.—Houston [14th Dist.] 2008, pet. dism’d w.o.j.).  
Under this standard, a
challenge to the legal or factual sufficiency of the evidence is not an
independent ground of error but may be a relevant consideration in assessing
whether the trial court abused its discretion.  See Baltzer v. Medina,
240 S.W.3d 469, 475 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  A trial
court does not abuse its discretion if there is some evidence of a substantive
and probative character to support its decision.  See A.L.E., 279 S.W.3d
at 428; Baltzer, 240 S.W.3d at 475.
III.
Analysis
Heidi presents two
related arguments to challenge the trial court’s appointment of Stacie, instead
of her, as sole managing conservator.  In her first issue, she contends the
trial court did not properly give effect to a “parental presumption” contained
in section 153.131(a) of the Texas Family Code.  That argument also underlies
her second issue, in which she claims that, by failing to observe that
statutory presumption, the trial court, in effect, violated her constitutional
rights as a parent.[1] 
Both of Heidi’s arguments turn on her claim that the trial court was required,
but failed, to apply a rebuttable statutory presumption that a child’s
interests would be best served by appointment of a parent as sole managing
conservator. The differences between an original conservatorship suit
and a modification action are “more than procedural or semantic.”  See
In re C.A.M.M., 243 S.W.3d 211, 215 (Tex. App.—Houston [14th Dist.]
2007, pet. denied).  Each proceeding is governed by a distinct statutory scheme
designed to address different policy concerns.  See V.L.K., 24 S.W.3d at
343.
The controlling
provisions for original custody suits are found in chapter 153 of the
Texas Family Code.  See id. at 341.  That chapter contains, among other
things, a “parental presumption” codifying the common-law notion that a child’s
best interest is usually served by awarding custody to a parent.  See id.;
Tex. Fam. Code Ann. § 153.131(a) (Vernon 2008).  A “modification suit” is governed
by a different chapter—156 —of the Family Code.  See V.L.K., 24 S.W.3d
at 342, 343.  
Both chapters share one
overriding concern:  the best interest of the child.  See Tex. Fam. Code
Ann. § 153.002 (Vernon 2008) (“The best interest of the child shall always
be the primary consideration of the court in determining the issues of
conservatorship and possession of and access to the child.”) (emphasis added). 
However, a modification suit introduces additional policy concerns not
present in an original custody action, “such as stability for the child and the
need to prevent constant litigation in child custody cases.”  V.L.K., 24
S.W.3d at 343.  Those concerns apparently prompted the Legislature to remove
any statutory presumption that would favor a parent over a nonparent in a
custody-modification proceeding:
By including the parental
presumption in original suits affecting the parent-child relationship but not
in suits for modification of conservatorship, the Legislature balanced the
rights of the parent and the best interest of the child.  On one hand, “the interest
of parents in the care, custody, and control of their children” has been
described as “perhaps the oldest of the fundamental liberty interests”
recognized by the United States Supreme Court.  On the other hand, it is the
public policy of this State to resolve conservatorship disputes in a manner
that provides a safe, stable, and nonviolent environment for the child.
The Legislature has determined
that when these two interests compete . . . the child’s interest in stability
prevails over the parent’s right to primary possession.  Thus, when statutory
requirements are met, the parent’s right to primary possession must yield to
the child’s right to a safe, stable home.
 
C.A.M.M.,
243 S.W.3d at 216 (citations omitted); see V.L.K., 24 S.W.3d at 343 (expressing
concern that “a change of custody disrupts the child’s living arrangements and
the channels of a child’s affection”).
According to the record,
the parties and the trial court agreed that the presumption applied to Stacie’s
suit seeking her appointment as R.T.K.’s managing conservator.  The trial court
stated:  “I think there is a . . . presumption in this particular case . . .
.”  Counsel for Stacie and Heidi responded in unison:  “Right.”  On motion for
rehearing, Heidi stresses that Stacie expressly consented to try the case under
the parental presumption and argues that the evidence is insufficient to
overcome this presumption.    
We hold the trial court
did not abuse its discretion by appointing Stacie as sole managing conservator
on this record.  This conclusion applies regardless of whether the evidence is
assessed in light of section 153.131(a)’s parental presumption or under section
156.101, which imposes no parental presumption.  Because both routes lead to
the same destination on this record, we need not and do not decide whether (1)
Stacie stipulated to an inapplicable standard; or (2) a party could hypothetically
waive the child’s right to have his best interests decided under the correct
legal standard.
Before addressing the
evidence supporting that conclusion, however, we pause to note the rather
unique deference afforded a trial court’s custody determinations, in light of
its ability to sense “the forces, powers, and influences that cannot be
discerned by merely reading the record”:
Custody disputes by their very
nature are inherently fact-intensive.  Concepts of psychological parenting,
bonding, and the depth of attachments to parent-figures must be viewed in the
context of the evidence presented.  Appellate courts routinely defer to the
fact finder at trial concerning matters of credibility and demeanor, but
perhaps in no other type of litigation is it more critical.  In most instances,
the fact finder will not hear from the child the subject of the suit.  The
child’s behavior, experiences, fears, joys, and significant attachments will be
conveyed through pictures and through the words of other witnesses, both lay
and expert.  The individuals vying for conservatorship may be scrutinized by
the fact finder for such intangible signs as an animated smile when describing
a child’s achievements, a furrowed brow when explaining typical affectionate
concern, or even tears when anticipating the emotional impact the outcome of litigation
will have on a child.
 
In re
De La Pena, 999 S.W.2d 521, 526, 529 (Tex. App.—El Paso 1999, no pet.). 
With those considerations in mind, we turn to the evidence addressing the
statutory presumption.
A.        The
“Parental Presumption” Standard
The relevant portions of
the “parental presumption,” as codified in the Family Code, provide:
Subject to the prohibition in
Section 153.004, unless the court finds that appointment of the parent . . .
would not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development, a
parent shall be appointed sole managing conservator . . . of the child.
 
Tex.
Fam. Code Ann. § 153.131(a).  The rationale for this presumption, according to
the Texas Supreme Court, is the natural affection that usually flows between
parent and child.  See V.L.K., 24 S.W.3d at 341.
In her first issue,
Heidi contends this statutory presumption may be rebutted only by proof
that she possesses some character flaw that currently renders her an “unfit”
mother and, by extension, her home an unsuitable place for R.T.K.  However, we
disagree with her interpretation, which is not supported by the plain statutory
language of section 153.131(a).
1.         Interpretation of Section 153.131(a)
In construing a statute,
our primary purpose is to determine and give effect to the Legislature’s
intent.  See V.L.K., 24 S.W.3d at 343.  To the extent possible, we must
ascertain that intent from the language used in the statute.  See Smith,
260 S.W.3d at 572; Graves v. Mack, 246 S.W.3d 704, 708 (Tex.
App.—Houston [14th Dist.] 2007, no pet.).  Therefore, if the statutory language
is unambiguous, as here, we adopt the interpretation supported by the plain
meaning of the words selected by the Legislature.  See Smith, 260 S.W.3d
at 572.
Section 153.131(a), on its face, does not necessarily
require proof of a parent’s blameworthy conduct as a prerequisite to
appointment of a nonparent as managing conservator.  Tex. Fam. Code Ann. §
153.131(a).  Instead, the statute plainly addresses only the effect of a
parent’s appointment on the child, as opposed to the myriad of circumstances—such
as the parent’s conduct—that might have produced that result.  See id. 

To that extent, section 153.131(a) may be contrasted with
the Family Code provisions governing the termination of parental rights.  See
Tex. Fam. Code Ann. §§ 161.001–.007 (Vernon 2008 & Supp. 2009).  Under chapter
161, a court may order involuntary termination of a parent-child relationship
only if there is proof of one or more acts or omissions, most of which, in a
general sense, reflect either neglect or inability to care for the child.  See
id. §§ 161.001(1) (Vernon Supp. 2009), 161.003(a) (Vernon 2008).  
That evidentiary requirement, however, is conspicuously
absent from section 153.131(a).  See id. § 153.131(a).  Therefore, we
must presume the Legislature did not intend to always require proof of specific
acts of wrongdoing by a parent simply to overcome the statutory presumption.[2]  See City of
Rockwall v. Hughes, 246 S.W.3d 621, 628 (Tex. 2008) (“[W]e believe every
word excluded from a statute must also be presumed to have been excluded for a
purpose.”) (citation omitted); Charette v. Fitzgerald, 213 S.W.3d 505,
511 (Tex. App.—Houston [14th Dist.] 2006, no pet.).  
To be clear, evidence of a parent’s “blameworthy prior
behavior,” by itself, may be sufficient to overcome the presumption in some
cases.  See, e.g., In re K.R.P., 80 S.W.3d 669, 677 (Tex. App.—Houston
[1st Dist.] 2002, pet. denied) (affirming appointment of nonparent as sole
managing conservator, in part, because of evidence of parent’s abusive and
criminal behavior).  However, such proof may not be necessary in all
cases if, as here, the record otherwise demonstrates that appointment of the
parent would produce “the statutorily required negative effect on the child.”[3]  In re G.R.W.,
191 S.W.3d 896, 900 (Tex. App.—Texarkana 2006, no pet.).  
We note several other Texas courts have interpreted section
153.131(a) similarly.  See id.; Chavez v. Chavez, 148 S.W.3d 449,
458–59 (Tex. App.—El Paso 2004, no pet.); K.R.P., 80 S.W.3d at 677 (noting
that “separation of the child from the only person who has consistently cared
for her for the majority of her life would ‘significantly impair’ the child’s
emotional development”); De La Pena, 999 S.W.2d at 529 (“[B]ecause
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 265, 272–73 (Tex. App.—San Antonio 1997, writ denied) (upholding
appointment of nonparents despite absence of any evidence of father’s
culpability).
In this case, the trial court specifically found, among
other things, that appointment of Heidi as sole managing conservator would
uproot R.T.K. “from the only home he has known for the last eight years” and
significantly impair his emotional development.  Because that finding is
sufficiently supported by evidence in the record, as shown below, we may not
disturb the trial court’s judgment.  See A.L.E., 279 S.W.3d at 428; Baltzer,
240 S.W.3d at 475.
2.         Application to Facts
In her appellate brief,
Heidi challenges the sufficiency of all fifty-two Findings of Fact issued by
the trial court, including such innocuous findings as, “Petitioner, STACIE
KELLY, is the step-mother of the child.”  As to most of these findings,
however, Heidi does not actually suggest the evidence is lacking; instead, she
contends these findings, taken as true, are not enough to overcome the
statutory presumption.  We disagree.
The record contains
evidence of a substantive and probative nature supporting the trial court’s
bottom-line conclusion that “[r]emoving [R.T.K.] from STACIE KELLY’s home would
significantly impair his emotional development.”  That was the very opinion
offered by multiple witnesses who have spent significant time with R.T.K.,
including Stacie, Heidi’s grandmother, and R.T.K.’s then-current schoolteacher,
Melanie Bailey.  All three witnesses confirmed that, as a result of the death
of his father, R.T.K. has an increased need for stability in his home
environment.  Further, all of these witnesses testified that the child’s
stability would be disrupted by removing him from his home and placing him with
Heidi.
The record confirms
their accounts.  For much of R.T.K.’s life, Heidi has been unable or unwilling
to provide the stable home environment crucial to his emotional development. 
She was incarcerated during his very early life, and ceased to have joint
custody of him when he was only one year old.  She was absent from his life for
more than two years, and repeatedly failed to exercise her rights to visit
with, much less actively participate in the early life of, her son.
In Heidi’s absence,
Stacie has provided a steady influence in R.T.K.’s life since she came to live
with him in 2001.  Over the years, they have bonded.  He now refers to Stacie
as his “mom,” and has repeatedly expressed his desire to live with her, not Heidi. 
With her help, he has begun to cope with the loss of his father.  She arranged
for him to receive counseling, and he reportedly has begun to “open up” about
his father’s death.  He enjoys strong support from his community and, according
to several witnesses, Stacie has provided a very safe and stable environment
for him.
The record suggests
Heidi, by contrast, can provide a “fun” environment for her son, but one
lacking any real community or family support.  Heidi has almost no interaction
with several of her son’s family members, and has not encouraged him to
maintain those relationships.  For example, after Heidi’s grandmother sided
with Stacie during a temporary-orders hearing, Heidi retaliated against her
grandmother by denying access to R.T.K.  She has not consistently paid child
support since Dean’s passing and has likewise failed to maintain steady
employment.
The record further
reflects that, after his father’s death, R.T.K. has become reluctant to trust
new people or to develop long-lasting relationships.  That development prompted
his teacher, Ms. Bailey, to express concerns about R.T.K.’s ability to adapt to
any new living situation.  That concern was not unfounded; when R.T.K. was
temporarily placed with Heidi following a habeas corpus hearing in this
case, he reacted very badly to the change in living arrangements.  He sobbed
uncontrollably and was not consoled by Heidi’s orders to simply “get over it.” 
Ultimately, Heidi had to ask her grandmother to help settle him down.  Heidi’s
grandmother, however, is no longer allowed at Heidi’s house.
The trial court,
presented with all of the foregoing evidence, could reasonably conclude that
removal of R.T.K. from “the only home he has known” would significantly impair
his emotional development.  See Rodriguez, 940 S.W.2d at 274. 
Accordingly, we hold the record sufficiently supports the trial court’s
conclusion that Stacie presented evidence to rebut the statutory presumption
found in section 153.131(a).
B.        Evidence
Supporting Modification of Previous Custody Order
A review of the evidence
under the modification standard leads to the same outcome.  A party seeking
modification of a previous custody order must prove, in relevant part, that (1)
modification would be in the child’s best interest, and (2) “the circumstances
of the child, a conservator, or other party affected by the order have
materially and substantially changed” since the previous custody order.  Tex.
Fam. Code Ann. § 156.101(a) (Vernon Supp. 2009); In re Vogel, 261
S.W.3d 917, 923 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding); C.A.M.M.,
243 S.W.3d at 216.  Here, the evidence also sufficiently supports a judgment
under this standard.
As to the first element,
the evidence highlighted above adequately demonstrates that modification of the
earlier custody order, so as to appoint Stacie as sole managing conservator,
would be in the child’s best interests because it would help promote R.T.K.’s
need for stability.  See Tex. Fam. Code Ann. § 156.101(a)(1); Vogel,
261 S.W.3d at 925 (upholding award of custody to nonparent, in light of
concerns posed by uprooting child from stable environment and placing him with
father with (1) a relative lack of stability, (2) an inconsistent history of
exercising visitation rights, and (3) an inability to maintain steady
employment).
Heidi does not challenge
proof of the second modification element, that is, a material and substantial
change in circumstances since the previous custody order.  See Tex. Fam.
Code Ann. § 156.101(a)(1).  The trial court specifically found, and the
uncontested evidence showed, that Dean, who was his son’s sole managing
conservator, suddenly died on June 23, 2006.  The death of a child’s parent—and
sole managing conservator—represents a “material and substantial change” supporting
modification of a custody order.  See In re P.D.M., 117 S.W.3d 453, 456
n.1 (Tex. App.—Fort Worth 2003, pet. denied), cited in Vogel, 261 S.W.3d
at 923 n.7.
Accordingly, under
either legal standard, the record sufficiently supports the trial court’s
decision to appoint Stacie, and not Heidi, as sole managing conservator. 
Therefore, we hold the trial court did not abuse its discretion, and we
overrule appellant’s first and second issues.
IV.
Conclusion
Finding no merit in the
issues presented, we affirm the trial court’s judgment.
 
                                                                                    
                                                                        /s/        Kent
C. Sullivan
                                                                                    Justice
 
 
Panel consists of Justices
Frost, Boyce, and Sullivan.
 




[1] Heidi does not raise a
separate challenge to the constitutionality of section 153.131(a). 


[2] Otherwise, it could be
argued that the evidence necessary simply to rebut the presumption might also
be sufficient to justify a complete and total termination of the parent-child
relationship.  See Tex. Fam. Code Ann. § 161.001(1)(E) (authorizing
termination of rights as to a parent that “engaged in conduct . . . which
endangers the physical or emotional well-being of the child”); see also In
re Rodriguez, 940 S.W.2d 265, 273 (Tex. App.—San Antonio 1997, writ denied)
(declining to require proof of parent’s wrongdoing to overcome presumption
because “[t]o do so, we believe, would improperly render [the child’s] best
interest coterminous with [the father’s] fitness to act as a parent and merge
the standard for the termination of parental rights with the very different
standard for custody determinations”).


[3] Our conclusion that proof
of Heidi’s wrongdoing was not necessary here should not be read as a
suggestion that the record was somehow devoid of such evidence.  To the
contrary, the evidence at trial included several instances of “blameworthy”
conduct by Heidi:
·        
After R.T.K.’s birth, but during her marriage to Dean, Heidi
worked as an “escort” for more than eighty men.  While she denied sleeping with
more than two of her “customers,” the trial court could and did infer unfitness
from the nature of the occupation and evidence that the vast majority of her
appointments took place at motels.  See In re G.R.W., 191 S.W.3d 896,
900 (Tex. App.—Texarkana 2006, no pet.) (confirming a parent’s “immoral
behavior” can overcome the parental presumption); De La Pena, 999 S.W.2d
at 528.
·        
During their marriage, Heidi physically assaulted Dean on at
least two occasions following the birth of their son.  As a result, she pleaded
“guilty” to spousal abuse and served a total of ninety days in jail.  Under the
Family Code, credible evidence of a history of physical abuse by one parent
against the other may be sufficient, by itself, to rebut the parental
presumption.  See Tex. Fam. Code Ann. §§ 153.004(b) (Vernon Supp. 2009),
153.131(a).  In fact, such evidence actually triggers a rebuttable presumption
that the abusive parent should not be appointed sole managing
conservator.  See id. § 153.004(b); Alexander v. Rogers, 247
S.W.3d 757, 762 (Tex. App.—Dallas 2008, no pet.); see also In re R.T.H.,
175 S.W.3d 519, 521 (Tex. App.—Fort Worth 2005, no pet.) (“A single act of
violence or abuse can constitute a ‘history’ of physical abuse for purposes of
section 153.004(b).”).
·        
Heidi had also assaulted Dean’s first wife, Kim Kelly, in front
of Kim’s children, and further threatened to “put [Kim] in the hospital.” 
Despite the remoteness of some of these offenses, appellant’s grandmother
testified that Heidi still has a bad temper, occasionally loses control, and
can be prone to violent outbursts.  The record also confirms several recent
outbursts by Heidi against her own grandmother, Stacie, and Dean’s mother.  In
addition, during the pendency of this suit, Heidi posted insults about the
trial judge on a website and had to be admonished during trial not to mouth
threats at her grandmother or flash obscene hand gestures at Stacie.  Dean’s
first wife and Heidi’s grandmother both voiced concerns, in light of Heidi’s
apparently uncontrolled anger problem, about the child’s safety and well-being
were he to be placed with Heidi.


