in the Interest of A.B.O. and E.B.O., Children

ACCEPTED
06-14-00071-CV
SIXTH COURT OF APPEALS
TEXARKANA, TEXAS
3/16/2015 3:13:27 PM
DEBBIE AUTREY
CLERK

No. 06-14-00071-CV
FILED IN
6th COURT OF APPEALS
IN THE COURT OF APPEALS FOR THE TEXARKANA, TEXAS
3/16/2015 3:13:27 PM
SIXTH DISTRICT OF TEXAS DEBBIE AUTREY
Clerk
AT TEXARKANA

IN THE INTEREST OF A. B. O. and E. B. O., Children

Appeal from the County Court at Law
of Lamar County, Texas

BRIEF OF APPELLEE

John R. Mercy
Texas State Bar No. 13947200
MERCY p CARTER p TIDWELL, L.L.P.
1724 Galleria Oaks Drive
Texarkana, TX 75503
Telephone: (903) 794-9419
Facsimile: (903) 794-1268
E-mail: jmercy@texarkanalawyers.com

ATTORNEYS FOR APPELLEE

Oral Argument Not Requested
 IDENTITY OF PARTIES AND COUNSEL

Pursuant to Rule 38.1(a) of the Texas Rules of Appellate Procedure, Appellee

lists below the names and addresses of all parties to the trial court’s final judgment

together with their counsel in the trial court. This list is provided so that the justices

of this Court may evaluate possible disqualification and recusal, and so that the Clerk

of the Court of Appeals may notify all parties of this Court’s final judgment.

David Brian O’Dell. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellant

Brent M. Langdon
LANGDON n DAVIS, LLP
5902 Summerfield, Ste. A
Texarkana, TX 75503. . . . . . . . . . . . . . Trial and Appellate Counsel for Appellant

Lisa McPherson
LANGDON n DAVIS, LLP
5902 Summerfield, Ste. A
Texarkana, TX 75503. . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellant

Melanie McMurtry. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . Appellee

Chad Cable
CHAD CABLE LAW OFFICES
323 Gilmer Street
Sulphur Springs, TX 75482.. . . . . . . . . . . . . . . . . . . . . . Trial Counsel for Appellee

John R. Mercy
MERCY p CARTER p TIDWELL, L.L.P.
1724 Galleria Oaks Drive
Texarkana, TX 75503. . . . . . . . . . . . . . . . . . . . . . . Appellate Counsel for Appellee

i
 TABLE OF CONTENTS
Page

Identity of Parties and Counsel. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii

Index of Authorities.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv

Statement of the Case. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement Regarding Oral Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

Response to Issues Presented. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

Statement of Facts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Summary of the Argument. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 10

Argument and Authorities. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Responsive Issue No. 1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Responsive Issue No. 2. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

Responsive Issue No. 3. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 16

Responsive Issues 4 - 7. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Caring for the Children.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Maintaining Family Relationships. . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Parental Fitness. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Responsive Issue No. 8. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

Responsive Issue No. 9. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

ii
Conclusion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Prayer. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32

Certificate of Service.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33

Certificate of Compliance. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

iii
 INDEX OF AUTHORITIES

Cases: Page

BMC Software Belg., N.V. v. Marchand,
83 S.W.3d 789 (Tex. 2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Butnaru v. Ford Motor Co.,
84 S.W.3d 198 (Tex.2002). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Dreyer v. Greene,
871 S.W.2d 697 (Tex.1993). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Gillespie v. Gillespie,
644 S.W.2d 449 (Tex.1982). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Golden Eagle Archery Inc. v. Jackson,
116 S.W.3 757 (Tex. 2003). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 17

Hales v. Boyington Capital Group, Inc.,
411 S.W.3d 631 (Tex. App. – Dallas 2013, pet. denied). . . . . . . . . . . . . . . . . . . . 28

Holley v. Adams,
544 S.W.2d 367 (Tex.1976). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Hoxie Implement Co., Inc. v. Baker,
65 S.W.3d 140 (Tex. App.– Amarillo 2001, pet. denied).. . . . . . . . . . . . . . . . . . . 12

In re Vogel,
261 S.W.3d 917 (Tex. App. – Houston [14th] 2008, original proceeding). . . . 13, 16

In re A.B.P.,
291 S.W.3d 91 (Tex. App.– Dallas 2009, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . 24

In Re Dept. of Family & Protective Servs.,
273 S.W.3d 637 (Tex. 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

iv
In Re Ferguson,
927 S.W.2d 766 (Tex. App. – Texarkana 1996, no writ). . . . . . . . . . . . . . . . . . . . 24

In re H.M.B.,
No. 09-05-179-CV, 2006 WL 666015,
(Tex. App.– Beaumont Mar.16, 2006, no pet.). . . . . . . . . . . . . . . . . . . . . . . . . . . 19

In re J.A.J.,
243 S.W.3d 611 (Tex.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

In re J.R.D.,
169 S.W.3d 740 (Tex. App.– Austin 2005, pet. denied).. . . . . . . . . . . . . . . . . . . . 20

In re M.M.M.,
307 S.W.3d 846 (Tex. App.– Fort Worth 2010, no pet.). . . . . . . . . . . . . . . . . 19, 24

In re M.T.C.,
299 S.W.3d 474 (Tex. App.– Texarkana 2009, no pet.). . . . . . . . . . . . . . . . . . . . . 20

In re Marriage of Woods,
2014 WL 4437795 (Tex. App.– Texarkana 2014).. . . . . . . . . . . . . . . . . . . . . . . . 21

In re W.C.B.,
337 S.W.3d 510 (Tex. App.– Dallas 2011, no pet.). . . . . . . . . . . . . . . . . . . . . . . . 19

In re W.M.,
172 S.W.3d 718 (Tex. App.– Fort Worth 2005, no pet.). . . . . . . . . . . . . . . . . . . . 24

In the Interest of V.L.K.,
24 S.W.3d 338 (Tex. 2000). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 16

Low v. Henry,
221 S.W.3d 609 (Tex.2007). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

Mauldin v. Clements,
428 S.W.3d 247 (Tex. App. – Houston [1st] 2014, no pet.). . . . . . . . . . . . . . . 13, 16

v
McCall v. Hester,
2015 WL 575667 (Tex. App. – Texarkana, Feb. 12, 2015). . . . . . . . . . . . . . . . . . 17

Morgan v. Morgan,
254 S.W.3d 485 (Tex. App.– Beaumont 2008, no pet.). . . . . . . . . . . . . . . . . . . . . 12

Newell v. Newell,
349 S.W.3d 717 (Tex. App.– Fort Worth 2011, no pet.). . . . . . . . . . . . . . . . . . . . 24

Park v. Escalera Ranch Owners Association, Inc.,
2015 WL 737424 (Tex. App. – Austin, Feb. 13, 2015). . . . . . . . . . . . . . . . . . . . . 20

Shook v. Gray,
381 S.W.3d 540 (Tex. 2012). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13, 15

Svoboda v. Svoboda,
2009 WL 3151336 (Tex. App. – Austin 2009). . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

Tex. Dept. of Protective & Regulatory Servs. v. Sherry,
46 S.W.3d 857 (Tex.2001). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Rules:

Tex. R. App. P.
33.1. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28
33.1(a). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Statutes:
Texas Family Code
§102.003. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14
§102.003(a)(9) Tex. Fam. Code. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 16
§102.004(a)(1). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15, 16
§ 156.101 (West 2014). . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

vi
 No. 06-14-00071-CV

IN THE COURT OF APPEALS FOR THE
SIXTH DISTRICT OF TEXAS
AT TEXARKANA

IN THE INTEREST OF A. B. O. and E. B. O., Children

BRIEF OF APPELLEE

TO THE HONORABLE COURT OF APPEALS:

COMES NOW Appellee, MELANIE McMURTRY, and files this her brief in

response to the brief of Appellant, DAVID BRIAN O’DELL, and would show unto

the Court the following1.

Statement of the Case

Nature of the Case

This is an appeal by the father of the children from the appointment of the

maternal grandmother as joint managing conservator with the right to designate the

primary residence of the children.

1
Appellant, David Brian O’Dell, will be referred to as “O’Dell”, and Appellee, Melanie
McMurtry, will be referred to as “McMurtry.” The children’s mother, Alisa Jene O’Dell, who is not
a party to this appeal, will be referred to as “Jene.” The Clerk’s Record will be cited as (CR p. __)
and the Reporter’s Record will be cited as (__ RR __).

1
Trial Court

The Honorable Bill Harris, County Court at Law, Lamar County, Texas.

Trial

Non-jury trial

Course of the Proceedings

Appellant, David Brian O’Dell, and Alisa Jene O’Dell were divorced in August

of 2004. (CR 5). The decree designated both parents as joint managing conservators

of the two children born of the marriage, A.B.O. and E.B.O., with Jene granted the

exclusive right to designate the primary residence of the children. (CR 2, 11).

In November of 2012 Child Protective Services were made aware of and

investigated concerns that Jene was using drugs. (3 RR 61). On December 3, 2012,

McMurtry, the maternal grandmother of the children filed to modify that decree

seeking to be the sole managing conservatorship of the children. (CR 51). CPS

concerns were alleviated because O’Dell told them that the children normally lived

with McMurtry and she had filed for custody. (3 RR 62). CPS did not file because

it thought Jene’s rights were going to be transferred to McMurtry. (3 RR 63).

In her petition, McMurtry alleged that continued appointment of the parents as

joint managing conservators would not be in the best interest of the children because

the appointment would significantly impair the children’s physical health or

2
emotional development. (CR 52). In response, O’Dell filed a Motion to Deny Relief

and an Original Answer. (CR 60, 62). O’Dell also filed a Counterpetition to Modify

Parent-Child requesting that he be appointed the conservator with the right to

designate the primary residence of the children. (CR 55). Both McMurtry and O’Dell

agreed that Jene should not have custody and only have supervised visitation. (3 RR

55-56).

The trial court heard the Motion for Temporary Orders and appointed

McMurtry and O’Dell as Joint Temporary Managing Conservators and Jene as

Temporary Possessory Conservator of the children. (CR 81). The court also gave

McMurtry the exclusive right to designate the primary residence of the children. (CR

81).

Trial Court’s Disposition of the Case

On April 10, 2014, a final hearing was held after which the judge interviewed

the children in chambers. (3 RR 339-423). The trial court appointed McMurtry and

O’Dell as Joint Managing Conservators and gave McMurtry the right to designate the

primary residence of the children in Lamar County. (CR 116). The court appointed

Jene as Possessory Conservator of the children as supervised by McMurtry and

ordered O’Dell to pay child support. (CR 116).

3
Post-Trial

The trial court entered Findings of Fact and Conclusions of Law. (CR 159).

O’Dell filed a Request for Additional and Amended Findings of Fact and Conclusions

of Law. (CR 162). The trial court granted O’Dell’s request. (CR 169). O’Dell filed

his Notice of Appeal. (CR 165).

4
 STATEMENT REGARDING ORAL ARGUMENT

Appellant has not requested oral argument. Appellee agrees that oral argument

would not be of benefit to the Court in deciding the issues.

5
 RESPONSE TO ISSUES PRESENTED

Responsive Issue No. 1

O’Dell was afforded his constitutional due process rights.

Responsive Issue No. 2

McMurtry had standing to obtain modification of the prior order.

Responsive Issue No. 3

The parental presumption did not apply because this was a
modification. But even if it did McMurtry showed that the denial
of access to the children would significantly impair the children’s
health and emotional well-being.

Responsive Issues No. 4 - 7

The trial court did not abuse its discretion in appointing O’Dell and
McMurtry as joint managing conservators. The modification was
in the best interest of the children.

Responsive Issue No. 8

The trial court did not abuse its discretion by making findings of
fact that were based on sufficient evidence and reasonable.

Responsive Issue No. 9

The court’s findings were supported by the evidence and did not
constitute an abuse of discretion. The conclusions of law based on
the findings were proper.

6
 STATEMENT OF FACTS

Although there was no order in place McMurtry raised the children after their

parents divorced. (3 RR 24, 29, 62, 80, 105, 355, 399). During that time Jene

acquired a drug habit. (3 RR 61). O’Dell worked several jobs and only interacted

with the children on his visitation weekends. (3 RR 153, 179 180). In the fall of 2012

Jene was reported to CPS for her drug use. (3 RR 61). CPS began an investigation

which validated Jene’s drug usage. (3 RR 44 61). The investigation was not

completed because McMurtry agreed to continue raising the children, and supervise

any visitation which Jene got. (3 RR 62-63). O’Dell did not object to this

arrangement. (3 RR 68, 84).

After McMurtry filed to intervene O’Dell contested it. (CR 55, 60, 62). One

thing that the parties agreed on was that Jene should not have unsupervised visitation.

(3 RR 56). After a hearing on temporary orders, McMurtry was appointed as a joint

temporary managing conservator with O’Dell and given the right to designate their

primary residence. (CR 64).Only after this point did O’Dell begin to attempt to

participate in the children’s lives other than on his weekends of visitation. (3 RR 108,

199, 362, 410).Although he had not done so before, O’Dell began to attend

extracurricular activities. (3 RR 362, 410). But despite this new found interest

visitation periods did not change. As described by the children, he would pick them

7
up and they would either spend the weekend in their rooms while he and his common-

law wife watched tv, go to her sister’s house where the adults would drink, or he

would attempt to take the children hunting, an activity that neither one liked. (3 RR

347, 361, 395-397, 411-416, 418). It is little wonder that the counselors who testified

found very little bonding between the children and O’Dell. (3 RR 22, 113). The

children even recognized the lack of any relationship and adamantly requested the

court to not send them to live with O’Dell. (3 RR 25, 357, 407).

McMurtry provided the children with a safe, loving relationship that had been

established over the many years the children had lived with her. (3 RR 24, 105, 214-

218). McMurtry had been the person involved in the children’s education, listing her

address as their residence, being in contact with counselors, and insisting on

appropriate education modifications for the children. (3 RR 214-216, 220-221).

Additionally, McMurtry had provided most of the children’s clothing, and all of their

school supplies. (3 RR 357). She also was responsible for getting the children to

school on a regular basis, ensuring their participation in extracurricular activities, and

encouraging their love of rodeo. (3 RR 214-216, 220-221, 224).

When faced with deciding whether O’Dell or McMurtry should determine the

children’s primary residence the court decided to leave them with McMurtry, where

they had been living most of their lives. Further, the court decided to maintain the

8
visitation schedule for O’Dell that he had prior to the CPS investigation. It is from

this order that O’Dell appeals.

9
 SUMMARY OF THE ARGUMENT

O’Dell raises for the first time a constitutional challenge that was not asserted

in the trial court. O’Dell claims that he was not afforded his constitutional rights

because the court did not superimpose the parental presumption over the requirements

for standing. This issue was waived by not asserting it at the trial court. But even if

it had been asserted, the Texas Supreme Court has said that standing is separate from

and does not rely on the parental presumption.

O’Dell challenges McMurtry’s standing. McMurtry proved standing under

both § 102.003(a)(9) and § 102.004(a)(1) of the Texas Family Code.

O’Dell challenges whether McMurtry overcame the parental presumption.

Texas courts have held that the parental presumption does not apply in a

modification. But even if it did, the trial court has sufficient evidence to support its

finding that the children’s emotional well-being would be significantly impaired if

McMurtry was denied possession of them.

O’Dell challenges whether the court’s conclusions of law were an abuse of

discretion and not in the best interest of the children. In analyzing whether or not

there was sufficient evidence for the court to make its decision, and whether its

decision was reasonable, the court clearly did not abuse its discretion based upon the

evidence presented, and its interviews with the children.

10
 O’Dell attacks the legal and factual sufficiency of the evidence to support some

of the court’s findings of fact. O’Dell attacks findings that he requested as well as

ones that he didn’t. In reviewing the evidentiary basis for findings of fact this Court

does so as part of the abuse of discretion review. It is clear based upon the evidence

presented at the hearing the interviews with the children that the findings of fact had

sufficient evidentiary support.

11
 ARGUMENT AND AUTHORITIES

Responsive Issue No. 1

O’Dell was afforded his constitutional due process
rights.

O’Dell raises a claim of violation of his constitutional rights in the manner in

which the trial court decided the case. No constitutional argument was raised in the

trial court.2 To preserve a complaint for appellate review, a party must present the

complaint to the trial court by a timely request, objection, or motion, state the grounds

for the desired ruling, and obtain a ruling thereon. Tex. R. App. P. 33.1(a). “This

requirement applies to constitutional claims, including constitutional claims in

family-law cases.” Morgan v. Morgan, 254 S.W.3d 485, 490 n. 1 (Tex. App.–

Beaumont 2008, no pet.) (citing Tex. Dept. of Protective & Regulatory Servs. v.

Sherry, 46 S.W.3d 857, 861 (Tex.2001); Dreyer v. Greene, 871 S.W.2d 697, 698

(Tex.1993)). “[B]oth the objection and all legal basis for it must be timely asserted.”

Hoxie Implement Co., Inc. v. Baker, 65 S.W.3d 140, 145 (Tex. App.– Amarillo 2001,

pet. denied).

2
The closest that O’Dell came to raising it was in argument to the court that the Troxel* case
from the U.S. Supreme Court required that the parental presumption apply. (3 RR 327).
* Troxel v. Granville, 120 S.Ct. 2054; 147 L.Ed.2d 49 (2000).

12
 In the event that the court is going to consider the argument, O’Dell’s argument

appears to be derived from an unpublished decision from the Austin Court of

Appeals. Svoboda v. Svoboda, 2009 WL 3151336 (Tex. App. – Austin 2009). The

crux of O’Dell’s argument seems to be that if a grandparent does not overcome the

parental presumption to prove standing that it constitutes a violation of the parent’s

constitutional rights. (Appellant’s Brief p. 25-27).

The Texas Supreme Court has addressed the relationship between the parental

presumption and standing. Shook v. Gray, 381 S.W.3d 540 (Tex. 2012). The court

determined that standing is determined without reliance on the parental presumption.

Id. at p. 543. Therefore O’Dell’s constitutional claim should fail.

If O’Dell’s claim is that the presumption should be applied to this modification

proceeding, it too fails. This case is a modification of the court’s original order in the

divorce. As a modification proceeding it falls under Chapter 156 of the Family Code.

The parental presumption arises under § 153.433. Texas courts have repeatedly held

that the parental presumption only applies in original proceedings. In the Interest of

V.L.K., 24 S.W.3d 338, 342 (Tex. 2000); In re Vogel, 261 S.W.3d 917, 923 (Tex.

App. – Houston [14th] 2008, original proceeding); Mauldin v. Clements, 428 S.W.3d

247, 267 (Tex. App. – Houston [1st] 2014, no pet.). Therefore because this is a

modification under Chapter 156 the parental presumption does not apply.

13
 O’Dell’s constitutional challenge fails because it was waived or the parental

presumption does not affect standing. O’Dell’s first issue should be overruled.

Responsive Issue No. 2

McMurtry had standing to obtain modification of the
prior order.

There are two ways to establish standing under the Texas Family Code. First,

suit may be brought by “a person other than a foster parent, who has had actual care,

control and possession of the child for at least six months ending not more than ninety

days preceding the date of the filing of the petition.” §102.003(a)(9) Tex. Fam. Code.

Second, in addition to the general standing under §102.003 a grandparent may bring

an action if there is satisfactory proof to the court that “the order requested is

necessary because the child’s present circumstances would significantly impair the

child’s physical health or emotional development.” § 102.004(a)(1). McMurtry only

had to prove standing under one section but she met the requirements under both

§102.003(a)(9) and § 102.004(a)(1).

Section 102.003(a)(9) requires six months actual care, control and possession

of the children prior to the filing of the suit. It is undisputed that the petition was

filed on December 3, 2012. (CR 51). McMurtry testified that the children had lived

with her continuously from April 7, 2012 up until the time the suit was filed. (3 RR

208). O’Dell testified that he knew that between March 2012 and the trial they were

14
living with McMurtry. (3 RR 149). O’Dell’s common-law wife testified that the

children moved in with McMurtry in March of 2012. (3 RR 273). O’Dell does not

challenge McMurtry’s standing on this basis. This evidence is sufficient to establish

standing under §102.003.

In the event the Court wishes to further analyze standing, McMurtry also

proved her standing under §102.004(a)(1). She was required to show that the

children’s present circumstances would significantly impair the children’s physical

health or emotional development. §102.004(a)(1). The children’s present circum-

stances were that the mother, Jene, was a joint managing conservator with the right

to establish the primary residency. Both O’Dell and McMurtry agreed that Jene was

unfit to hold that position and that a continuation of the circumstance would

significantly impair the children’s physical health and emotional development. (3 RR

55-56). Both O’Dell and McMurtry agreed that Jene should not be allowed visitation

unless it was supervised. (3 RR 55-56). These admissions and evidence that the

present circumstances would significantly impair the children’s emotional

development is sufficient to support McMurtry’s standing under § 102.004(a)(1).

If O’Dell’s argument is an attempt to somehow engraft the parental

presumption into the standing requirements, the Supreme Court has specifically held

that this is not proper. Shook, 381 S.W.3d at 543.

15
 O’Dell’s standing challenge fails because McMurtry established standing under

§ 102.003(a)(9) or § 102.004(a)(1). O’Dell’s second issue should be overruled.

Responsive Issue No. 3

The parental presumption did not apply because this
was a modification. But even if it did McMurtry
showed that the denial of access to the children would
significantly impair the children’s health and emotional
well-being.

As set forth above, the parental presumption does not apply in a modification.

See V.L.K., 24 S.W.3d at 342, Vogel, 261 S.W.3d at 923, and Mauldin, 428 S.W.3d

at 267. Therefore, issue number three should be overruled.

In the event that the Court chooses to look beyond this controlling precedent

and require a party to overcome the parental presumption in a modification,

McMurtry still did so.

A grandparent may be granted possession of a grandchild if they prove: (1) at

the time the relief is requested at least one parent’s rights have not been terminated;

(2) that the denial of possession of or access to the child would significantly impair

the child’s physical health and emotional well-being; and (3) that the grandparent is

the parent of a parent of the child and that parent of the child: (A) has been

incarcerated; (B) has been found by the court to be incompetent; (C) is dead; or (D)

16
does not have actual or court ordered possession of the child. Sec. 153.33 Tex. Fam.

Code.

Here it appears that O’Dell concedes that neither parent’s rights have been

terminated. (CR 57). Additionally, the evidence is clear that the children’s mother

does not have actual possession of the children. (3 RR 24, 62, 80, 105, 149, 273).

Therefore, McMurtry has met two of the three prongs. The focus of O’Dell’s

argument appears to be on the second factor, that denial of possession of the children

to McMurtry would significantly impair the children’s physical and emotional well-

being. (Appellant’s brief p. 32-37).3

The trial court is the sole judge of the credibility of the witnesses and the

weight to be given to the evidence. Golden Eagle Archery Inc. v. Jackson, 116 S.W.3

757, 761 (Tex. 2003); McCall v. Hester, 2015 WL 575667 (Tex. App. – Texarkana,

Feb. 12, 2015). In making the determination that denial of possession by McMurtry

would significantly impair the children’s health and emotional well-being, the court

heard testimony from a licensed professional counselor, McMurtry, and the children

themselves.

The licensed professional counselor, Ronikaye Rusak, testified that McMurtry

had always been the children’s stability from their earliest memory. (3 RR 24). She

3
O’Dell’s argument focuses on whether or not he would deny McMurtry access to the
children. (Appellant’s brief p. 34-36). This is a misreading of the statute.

17
testified that the children were scared that O’Dell would take them and not let them

see McMurtry. (3 RR 22, 26). She testified that the children were happy and well

adjusted with McMurtry. (3 RR 29). Rusak testified that if the children were taken

from McMurtry and sent to live with O’Dell that it would cause the children

emotional distress and harm. (3 RR 53).

McMurtry testified that the children have expressed to her that they don’t want

to live with O’Dell. (3 RR 210). She also testified that taking them from her and

sending them to live with O’Dell would cause emotional harm. (3 RR 210).

The children were interviewed by the court. A.B.O. told the court she was

scared to go with her dad. (3 RR 344). She wants to live with mcMurtry because she

is her “go to” person. (3 RR 357). If she had to live with O’Dell she would be “sad.”

(3 RR 358). E.O.B. told the court she wants to live with McMurtry because she is a

“better mom than her actual mom.” (3 RR 407). She is able to talk to McMurtry

about things she can’t talk to anyone else about. (3 RR 409). She feel comfortable

with McMurtry. (3 RR 417). If she had to live with O’Dell she would be

“uncomfortable, nervous, mad, scared and sad.” (3 RR 418). The court also heard

testimony from O’Dell and his witnesses.

It is clear that the court as the fact finder believed Rusak, McMurtry, and the

children. In this case that evidence clearly supports a finding that the children would

18
have their emotional well-being significantly impaired if McMurtry was denied

possession of them. O’Dell’s Issue No. 3 should be overruled.

Responsive Issues No. 4 - 7

The trial court did not abuse its discretion in
appointing O’Dell and McMurtry as joint managing
conservators. The modification was in the best interest
of the children.

O’Dell challenges the trial court’s conclusions of law 4 through 7 against the

backdrop of the children’s best interest pursuant to § 156.101.

This Court is to review conservatorship determinations for an abuse of

discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex.2007); In re W.C.B., 337 S.W.3d

510, 513 (Tex. App.– Dallas 2011, no pet.). “The trial court is given wide latitude in

determining the best interests of a minor child.” Gillespie v. Gillespie, 644 S.W.2d

449, 451 (Tex.1982); In re H.M.B., No. 09-05-179-CV, 2006 WL 666015, at *2 (Tex.

App.– Beaumont Mar.16, 2006, no pet.) (mem. op .). In determining if the trial court

abused its discretion, this court must decide whether the trial court acted without

reference to any guiding rules or principles, i.e. that the trial court’s decision was

arbitrary and unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007). The

trial court does not abuse its discretion when it bases its decision on conflicting

evidence. In re M.M.M., 307 S.W.3d 846, 849 (Tex. App.– Fort Worth 2010, no pet.).

So long as there is some evidence of substantive and probative character to support

19
the trial court's decision, this court will not find an abuse of discretion. Butnaru v.

Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002).

The court’s conclusions of law are reviewed de novo. BMC Software Belg.,

N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002); Park v. Escalera Ranch Owners

Association, Inc., 2015 WL 737424 (Tex. App. – Austin, Feb. 13, 2015).

In performing a review, this Court should defer to the trial court, because “[t]he

trial court is in a better position to determine what will be in the best interest of the

child since it faced the parties and their witnesses, observed their demeanor, and had

the opportunity to evaluate the claims made by each parent.” In re J.R.D., 169 S.W.3d

740, 743 (Tex. App.– Austin 2005, pet. denied).

The primary consideration in determining issues regarding conservatorship,

access, and possession is always the best interest of the child. Tex. Fam. Code Ann.

§ 156.101 (West 2014); In re M.T.C., 299 S.W.3d 474, 479 (Tex. App.– Texarkana

2009, no pet.). Texas courts have long recognized certain (non-exclusive) factors to

be considered in determining the best interest of a child:

(A) the desires of the child;

(B) the emotional and physical needs of the child now and in the
future;

(C) the emotional and physical danger to the child now and in the
future;

20
 (D) the parental abilities of the individuals seeking custody;

(E) the programs available to assist these individuals to promote the
best interest of the child;

(F) the plans for the child by these individuals or by the agency
seeking custody;

(G) the stability of the home or proposed placement;

(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and

(I) any excuse for the acts or omissions of the parent.

Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976). See also In re Marriage of

Woods, 2014 WL 4437795 (Tex. App.– Texarkana 2014).

According to O’Dell, the Holley v. Adams factors fall roughly into three

categories: (1) caring for the children; (2) maintaining family relationships; and (3)

parental fitness. (Appellant’s brief p. 38). In applying the Holley v. Adams criteria

as urged by O’Dell it becomes even further clear that the court’s decision was in the

best interest of the children.

Caring for the Children

In analyzing O’Dell’s caring for the children factor, there was substantial

testimony with regard to McMurtry’s actual care for the children. McMurtry has been

their primary caregiver throughout their life. (3 RR 24). She is the one who would

“rescue” the children from their mother and her boyfriends. (3 RR 200). Further, she

21
is the one that insisted and made sure that they attended school. (3 RR 218-222).

McMurtry took them for testing to determine their academic abilities. (3 RR 240).

McMurtry also is in contact with the school counselor and school officials to make

sure that the children receive their education. (3RR 220). McMurtry also provides

most of the children’s clothing, food and shelter. (3 RR 224). Additionally,

McMurtry makes sure that the children are involved in their school activities and

rodeo. McMurtry’s address is listed for the children on all school records. (3 RR

217). In essence, McMurtry is the children’s “go to” person and provides the only

stability for the children. (3 RR 218, 357).

Maintaining Family Relationships

In analyzing O’Dell’s second factor, of maintaining family relationships, the

court once again had substantial evidence upon which to make its decision. The

evidence was that McMurtry had always been the one that O’Dell relied upon to

ensure visitation when Jene would “blow up.” (3 RR 234). McMurtry had worked

well with O’Dell prior to the modification being filed. (3 RR 163). McMurtry would

take the children to visitation with O’Dell, and encourage them to have a relationship

with their father. (3 RR 255, 309). The evidence was clear that McMurtry was

dedicated to making sure that the children continued to have a relationship with their

22
father. (3 RR 218). McMurtry also attempted to continue the children in counseling

so that they could build a better bond with their father. (3 RR 228).

Parental Fitness

Finally, analyzing O’Dell’s third factor of parental fitness, it becomes obvious

that McMurtry is fit to be a joint managing conservator with the right to establish

primary residency. McMurtry has been the one that has raised the children

throughout their life. (3 RR 24, 62, 80, 105). She has been more of a mother to the

children than their own mother. (3 RR 201-203, 212-218, 407). She is the one that

talks to them about all important things. (3 RR 357, 409, 417 ). McMurtry performs

all the tasks necessary as a parent, including providing clothing, food, shelter, taxi

service, and encouragement. (3 RR 212-218, 220-224, 357, 377, 409). Therefore the

trial court did not abuse its discretion.

Responsive Issue No. 8

The trial court did not abuse its discretion by making
findings of fact that were based on sufficient evidence
and reasonable.

Under Issue No. 8 O’Dell attempts to attack the legal and factual sufficiency

of the evidence to support some of the court’s findings of fact. As this Court has

previously held, the legal or factual sufficiency of the evidence to support findings

is not a separate independent review but part and parcel to the abuse of discretion

23
review that this Court makes. In Re Ferguson, 927 S.W.2d 766, 769 (Tex. App. –

Texarkana 1996, no writ). Other courts agree that in determining whether a trial court

abused its discretion in its child custody ruling, this court does not consider legal and

factual sufficiency as independent grounds of error but as relevant factors in deciding

whether the trial court abused its discretion. Newell v. Newell, 349 S.W.3d 717, 720

(Tex. App.– Fort Worth 2011, no pet.); In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.–

Dallas 2009, no pet.). In this regard, the consideration is whether the trial court had

sufficient information to exercise its discretion and whether it erred in its application

of that discretion. M.M.M., 307 S.W.3d at 849. The traditional sufficiency review is

relevant with regard to determining if the trial court had sufficient evidence to

exercise its discretion. Id. (citing In re W.M., 172 S.W.3d 718, 725 (Tex. App.– Fort

Worth 2005, no pet.)). If it did then the inquiry is whether the trial court made a

reasonable decision considering the evidence presented. M.M.M., 307 S.W.3d at 849.

In doing the two-step analysis it becomes clear that there was sufficient evidence for

the court to make a decision and that the court’s decision based upon that evidence

was reasonable.

O’Dell has set forth in his brief the facts favorable to his position, without

completely reviewing the facts unfavorable to that position. In an attempt to provide

24
this Court with the full picture McMurtry will detail the facts that support each of the

court’s challenged findings.

Finding No. 2

Finding 2. That McMurtry had actual exclusive care,
control and possession of the subject children for more
than six months prior to filing her intervention.

Finding 2. That McMurtry has effectively been the
primary caretaker of the subject children for most of
their lives.

The court found that McMurtry had actual exclusive care, control and

possession of the subject children for more than six months prior to her filing the

intervention. (CR 159). The court further found that McMurtry has effectively been

the primary caretaker of the children for most of their lives. (CR 159). These findings

are based upon testimony from Ronikaye Rusak, Sara Estrada, Kathy Floyd, O’Dell,

McMurtry, Tonya Tackett, and the children. McMurtry testified that the children had

lived with her continually from April 7, 2012 until the suit was filed. It is undisputed

that the suit was filed on December 3, 2012.

Rusak testified that based upon her interviewing the children and the

information provided to her, that the children had lived most of their lives with Ms.

McMurtry, (3 RR 24). She also testified that McMurtry was the children’s primary

caretaker. (3 RR 24).

25
 Sara Estrada, the CPS investigator, testified that O’Dell told her that the

children were normally with McMurtry. (3 RR 62, 80).

Kathy Floyd, a licensed professional counselor appointed by the court, testified

that the children had lived with McMurtry most of their lives. (3 RR 105).

O’Dell testified that he knew the children were living with McMurtry after

March of 2012. (3 RR 149). He also testified that his interest in the children picked

up because McMurtry filed the modification. (3 RR 188).

McMurtry testified that the children had lived with her continually since April

7, 2012 until the suit was filed on December 3, 2012. (3 RR 2018). McMurtry also

detailed what she does for the children, including exchanging them for visitation with

O’Dell, providing a residence so they could go to Chism ISD, checking with the

school on grades and testing, buying most of their clothes, taking them to extra-

curricular activities and rodeos, and providing stability to the children. (3 RR 217,

218, 220, 224).

Tackett, O’Dell’s common-law wife, testified that she and O’Dell knew that the

children were living with McMurtry at least since March 2012. (3 RR 273).

When A.B.O. was interviewed by the court she discussed living with McMurtry

most of the time. (3 RR 356-57). She also detailed her relationship with McMurtry.

(3 RR 357, 377).

26
 E.B.O. likewise testified that they lived with McMurtry but visited with their

mother. (3 RR 399).

This evidence is sufficient for the trial court to make both findings. The trial

court did not abuse its discretion in making these findings.

Finding No. 4

Finding 4. That the subject children have little bond
with their father, O’Dell.

O’Dell contests the court’s finding of fact that the children had little bond with

their father. This finding is based upon the testimony of the two licensed professional

counselors as well as the children’s interviews with the court. Rusak testified that the

children’s trust in O’Dell was low. She further testified that their isn’t a bond

between the children and O’Dell. (3 RR 47). Additionally, Kathy Floyd, a licensed

professional counselor, also testified that one big issue was the distance between the

children and their father. She additionally testified that the children felt that their dad

would take them away from their grandmother. (3 RR 113-114). When asked to rate

their relationship with their dad the children rated it at a 3 on a scale of 1 to 10. (3 RR

25). When interviewed by the court the children reported that upon visits with their

dad he would watch TV and they would stay in their room. The children told the

court of their minimal interaction with O’Dell.

27
 This evidence is sufficient for the trial court to make the finding. The trial

court did not abuse its discretion in making the finding.

Finding Nos. 5 and 6

Finding 5. That McMurtry executed and attached an
affidavit on knowledge and belief that contained, along
with supporting facts, the allegation that denial of
possession of or access to the children would
significantly impair the children’s physical health or
emotional well-being.

Finding 6. That the facts stated in the affidavit were
true and were sufficient to support the relief requested.

O’Dell complains about the verification of McMurtry’s pleadings for the first

time on appeal. O’Dell did not complaint to the trial court that the verification was

not a sufficient affidavit. The failure to complain to the trial court at a time that it

could rule on this constitutes a waiver of these issues on appeal. See Tex. R. App. P.

33.1.

Further, O’Dell requested these specific findings. (CR 152). Under the doctrine

of invited error, O’Dell cannot now complaint about the inclusion of findings that he

specifically requested. In Re Dept. of Family & Protective Servs., 273 S.W.3d 637,

649 (Tex. 2009). Hales v. Boyington Capital Group, Inc., 411 S.W.3d 631, 637 (Tex.

App. – Dallas 2013, pet. denied).

28
 O’Dell waived this error or invited the error. O’Dell’s challenge to these

findings should be denied.

Finding No. 7

Finding 7. That naming O’Dell as the conservator with
the exclusive right to determine the primary residence
of the subject children would significantly impair the
children’s health or emotional development.

O’Dell challenges the court’s finding that allowing him to determine the

primary residence would significantly impair the children’s health and emotional

development. This finding is supported by evidence from Ronikaye Rusak,

McMurtry, and the children. Rusak testified that if the children were sent to live with

O’Dell that it would cause the children emotional distress and harm. (3 RR 53). She

also testified that O’Dell’s drinking was a problem. (3 RR 22). McMurtry testified

that sending the children to live with O’Dell would cause emotional harm. (3 RR

210). But most telling was the children’s testimony about how O’Dell behaved and

treated them during his visitations. During the court’s interview of A.B.O. she related

how she was scared of going to O’Dell’s house if he didn’t win the hearing. (3 RR

444). She also related that he would drink around the children and “go crazy.” (3 RR

346). She testified that O’Dell was not involved with her school activities, except

one open house, before the case was filed. (3 RR 362). She also testified that O’Dell

didn’t support them in their favor activity, rodeo. (3 RR 363).

29
 When E.B.O. was interviewed she told of similar problems. She also testified

that O’Dell’s common-law wife would have to drive them home when O’Dell drank.

(3 RR 395). But she said that Tonya had also been drinking. (3 RR 395). She

testified that she “hates” hunting but he still makes her go. (3 RR 418).

The evidence was sufficient to support this finding. The trial court did not

abuse its discretion in making the finding.

Finding No. 8

Finding 8. O’Dell submitted the finding that O’Dell
intends to completely deny McMurtry possession of or
access to the children and now claims it is error to have
entered it.

O’Dell challenges the court’s finding that he intended to deny McMurtry

possession of the children. This was another finding that O’Dell requested but now

challenges. (See argument at p. 22). The court’s finding is supported by the evidence

from Rusak that the children feared that they would not be allowed to see their

grandmother. (3 RR 26). This fear seems to be based upon an incident at

Thanksgiving when O’Dell threatened that very thing. (3 RR 36, 342-43). Further,

Floyd also testified that the children felt that their dad would take them away from

their grandmother. (3 RR 114). A.B.O. testified she is scared O’Dell will not let her

see McMurtry. (3 RR 370). At Thanksgiving O’Dell threatened to not return E.B.O.

30
to McMurtry. (3 RR 3342-43). E.B.O. also testified that she was scared O’Dell

would not return her to McMurtry. (3 RR 392-94).

Additional Finding: That McMurtry is a parent of a
parent of the children and that a parent of the children
has been incarcerated in jail or prison during the three-
month period preceding the filing of the petition; found
by a court to be incompetent; is dead; or does not have
actual or court-ordered possession of or access to the
children.

After the court had entered findings of fact and conclusions of law O’Dell

requested additional findings. (CR 162). The court granted that request. (CR 163).

O’Dell now complains of the entry of that finding. In the one paragraph challenge

O’Dell fails to recognize that the finding is in the disjunctive. Evidence supporting

one of the four propositions will support the finding. The court heard significant

evidence that Jene did not have actual possession of the children. (See facts outlined

in pages 8 to 9).

The evidence was sufficient to support this finding. The trial court did not

abuse its discretion in making the finding.

31
 Responsive Issue No. 9

The court’s findings were supported by the evidence
and did not constitute an abuse of discretion. The
conclusions of law based on the findings were proper.

O’Dell makes a global complaint that the judgment is flawed because the

findings were not supported by evidence. As set out above, the findings have

sufficient evidence for the court to make its decision and the decision was reasonable.

It is clear from an analysis of the evidence that there was sufficient evidence

for the court to make its determination as to the children’s best interests, and that

based upon that evidence the court’s determination was reasonable.

CONCLUSION

Based upon the entire record, including the interviews with the children, the

court made its decision based on the best interest of the children. The evidence is

sufficient to support the court’s decision and the decision was reasonable. Therefore

the trial court did not abuse its discretion and should be affirmed.

WHEREFORE, PREMISES CONSIDERED, Appellee, MELANIE

McMURTRY, prays that this Court affirm the trial court’s judgment; and for such

other and further relief to which she may show herself to be entitled.

32
 Respectfully submitted,

/s/ John R. Mercy
John R. Mercy
Texas State Bar No. 13947200
MERCY p CARTER p TIDWELL, L.L.P.
1724 Galleria Oaks Drive
Texarkana, TX 75503
Telephone: (903) 794-9419
Facsimile: (903) 794-1268
E-mail: jmercy@texarkanalawyers.com

ATTORNEYS FOR APPELLEE

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of the foregoing Brief of Appellee
was served on all counsel of record via electronic transmission on this 16th day of
March, 2015, as follows:

Mr. Brent M. Langdon Email: blangdon@ldatty.com
Ms. Lisa McPherson Email: lisam@ldatty.com
LANGDON n DAVIS, LLP
5902 Summerfield, Ste. A
Texarkana, TX 75503

Mr. Chad Cable Email: chadcable@yahoo.com
CHAD CABLE LAW OFFICES
323 Gilmer Street
Sulphur Springs, TX 75482

/s/ John R. Mercy
John R. Mercy

33
 CERTIFICATE OF COMPLIANCE

Pursuant to Tex. R. App. P. 9.4, I hereby certify that the foregoing Brief of
Appellee contains 5512 words. This is a computer-generated document created in
WordPerfect using 14-point typeface. In making this certificate I am relying on the
word count provided by the software used to prepare the document.

/s/ John R. Mercy
John R. Mercy

34