Nonparent Custody Affirmed

San Antonio court of appeals affirms award of custody to nonparent over natural father. Mother had died. Challenge to standing fails. Parental preference rebutted.

In the Interest of N.B.B. and J.B.B., Children, No. (Tex.App.- San Antonio , Oct. 31, 2007)(Opinion by Justice Angelini)(nonparents)(Before Chief Justice López, Justices Angelini and Marion)
Appeal from 81st District Court of Atascosa County
Opinion by: Karen Angelini, Justice
Sitting: Alma L. López, Chief Justice
Karen Angelini, Justice
Sandee Bryan Marion, Justice
Delivered and Filed: October 31, 2007
AFFIRMED

This an appeal from an order in a suit affecting the parent-child relationship. At the close of the non-jury trial, the trial court entered an order appointing Shannon W. and John B. joint managing conservators of the children, N.B.B. and J.B.B., with Shannon having the right to determine the primary residence of the children and John having standard visitation. In three issues on appeal, John contends Shannon, a non-parent, lacked standing to participate in this suit; the evidence was legally and factually insufficient to support certain findings of fact and conclusions of law; and the evidence was legally and factually insufficient to rebut the parental presumption set forth in section 153.131 of the Texas Family Code. We affirm the trial court's order.

Factual and Procedural Background

John and Sharon B., the mother of N.B.B. and J.B.B., began living together in the early 1990s in Florida. Although they never married, they had two children, N.B.B. and J.B.B. Sharon and John eventually separated, and sometime between 2000 and 2002 Sharon moved to Texas with the children.

In early 2005, Sharon was diagnosed with terminal cancer. About a month before her death, Sharon placed J.B.B., who has Downs Syndrome, in a residential facility called The Willows. At the same time, Sharon's daughter, N.B.B., began living with Sharon's friend and neighbor, Shannon W.

Sharon died on September 22, 2005. When John learned that Sharon had passed away, he tried to take his children with him to Florida, but Shannon refused to allow him to do so. John filed an original petition in a suit affecting the parent-child relationship. Shannon then brought a counter-petition. After a temporary orders hearing, the trial judge essentially maintained the status quo, appointing Shannon as temporary managing conservator of the children and John as temporary possessory conservator of the children. Upon a final hearing, the trial judge appointed Shannon and John as joint managing conservators, granting Shannon the right to determine the children's residence and John standard visitation. The trial court then entered findings of fact and conclusions of law. John appeals the trial court's order.

The Evidence

The evidence in this case was adduced at two hearings: the temporary orders hearing held on October 18, 2005, and the trial on the merits held on April 27, 2006.
John, the father of N.B.B. and J.B.B., testified that he and Sharon began dating in 1993 in Florida. When they found out she was pregnant, they began living together. According to John, he lived with Sharon until about 2001 or 2002, when they separated. Sharon then took the children and moved to Texas, but she and John continued to be good friends. In 2003, Sharon took the children to Florida to visit John's family. In 2004, N.B.B. visited the family in Florida by herself.
The first time John came to Texas was in May 2005,when Sharon was seriously ill. Then, in the months of June and July 2005, N.B.B. and J.B.B. visited John in Florida. According to John, while the children were with him, his girlfriend, Sandra, helped him take care of the children while he was working. In late July 2005, the children returned to Texas.
John testified that in August 2005 he received a phone call from Sharon's doctor, Dr. Mario Perez, asking him to help Sharon with J.B.B. John then spoke to Sharon who told him that because of her illness, J.B.B. was too hard for her to handle. John however refused to take J.B.B. According to John, he did so because he and Sharon had always agreed not to separate the children. When he found out Sharon had passed away, he called Shannon and asked if he could come get his children. She refused.
John testified that he has a house in Florida for his children to live in with him. He also has a large extended family living near him. Although he is aware that J.B.B. has been placed in a residential care facility, he does not plan to place J.B.B. in one in Florida. J.B.B. needs special attention because he uses diapers and does not know how to clean himself after he goes to the bathroom. It is John's intent for both children to live with him. He plans to place both N.B.B. and J.B.B. in school, with J.B.B. attending a special Olympics program after school. According to John, he will get professional help for J.B.B. if necessary. And, according to John, he does not plan for N.B.B. to be J.B.B.'s caretaker. His girlfriend, Sandra, will help him with the children. John testified that he has never hit N.B.B. or J.B.B.
John has a total of six children by four different mothers. The children, other than N.B.B. and J.B.B., are ages three, thirteen, seventeen, and nineteen. The mothers of the two youngest children have filed suit against him to collect child support. He has been ordered to pay child support, but is behind on his payments. He was never ordered to pay child support for N.B.B. and J.B.B. but did send some money to Sharon for their support. In 1991, John was convicted of driving under the influence and eventually had his license revoked for driving with a suspended license. John works at a family-owned construction company and is paid $500 a week; however, child support for his two youngest children is deducted from that amount.
Mauro B., John's brother, testified that in early June 2005, Sharon wrote a letter appointing him as guardian of her children. Mauro believes she did this because he and his children had been very close to N.B.B. and J.B.B. After Sharon moved to Texas, Mauro sent her some money on a couple of occasions. According to Mauro, his brother, John, is a very loving father. But, Mauro admitted the children have not lived with John since 2002 or 2003 when Sharon left Florida. Mauro also testified that John worked for him in the past and was a stable employee. Mauro has never seen John hit either N.B.B. or J.B.B.
Michael B., also John's brother, testified that he owns his own business in Florida, and John is his employee. According to Michael, John is a good employee and makes about $2,000 a month. When N.B.B. and J.B.B. lived in Florida, they spent time playing with Michael's three children. He has never seen John discipline N.B.B. or J.B.B.
John's father also testified. John's father is retired and lives in Florida with his wife. According to him, his son John is a very good father, and if John gains custody of N.B.B. and J.B.B., he and his wife will help take care of them. He has never seen John hit any of his children. John's girlfriend, Sandra, loves the children and treats them very well. John's father further testified that Sharon moved to Texas around 1999 to 2000.
Dr. Mario Perez was Sharon's treating doctor. According to Dr. Perez, Sharon was diagnosed with terminal cancer around March 2005. Around August 2005, Dr. Perez had a telephone conversation with John concerning Sharon's condition. Because J.B.B. was becoming difficult to handle, Dr. Perez was trying to explore ways to make this difficult time with J.B.B. a little easier. According to Dr. Perez, although John obviously understood what Dr. Perez was trying to tell him, he gave no feedback one way or the other.
Charlotte Taber is the licensed counselor ordered by the court to conduct a social study in this case. She testified that she visited both Shannon's home and John's home. She also observed John with his children in her office and in the park. According to Taber, John interacted well with the children; they seemed very natural. She also observed John's nephews interact with him in Florida. According to Taber, they jumped in his arms and clung to him. She also testified that in his home John has numerous pictures of his nephews and pictures of J.B.B. and N.B.B. John's house is clean, but is in the process of being reconstructed. There is a bedroom for each of the children. John seems to really want to be a father in every way. He has a strong extended family. Taber believes John will be able to nurture his son, J.B.B.
Taber also testified that the staff at The Willows reported to her that J.B.B.'s symptoms have "deteriorated" quite a bit since he has been there; Taber later admitted, however, that when describing J.B.B.'s condition the staff had not used the word "deteriorated." According to Taber, the optimal placement for J.B.B. is in a residential home. Although neither John nor his girlfriend has received training for taking care of J.B.B., Taber testified that John's plan was for his girlfriend to care for J.B.B. when he was not there and to receive help from other family members. Taber testified that John has been unable to fulfill his child support responsibilities with his children; that he has not seen N.B.B. or J.B.B. much in the past four or five years; and that he has not provided child support.
Taber also testified that the children have known Shannon for four years. However, according to Taber, the biological father carries more weight than someone who is not related. Taber also viewed a video of Sharon, N.B.B. and J.B.B.'s mother, in which Sharon indicated she wanted Shannon to take care of her children. According to Taber, N.B.B. also indicated she wanted to live with Shannon. However, when Taber asked N.B.B. what would happen if the judge said she had to live with her father, N.B.B. responded that she would be fine.
Shannon testified that after Sharon moved to her neighborhood in July 2002, they became very good friends. According to Shannon, during the period of time that they were friends, Sharon became like a second mom to her. Shannon saw Sharon and her two children every day. At least once or twice a month, Shannon took care of the children. They shared holiday events, including Christmas and Thanksgiving dinners. During Sharon's illness, several family members and friends, including Shannon, took care of Sharon and her children. On September 1, 2005, hospice began caring for Sharon, and N.B.B. went to live with Shannon. At the same time, Sharon placed J.B.B. at The Willows. Shannon testified that J.B.B.'s condition has improved considerably since he moved to The Willows. His weight has decreased to a healthy weight, and his vocabulary and writing skills have increased. He seems content, happy, and well-behaved. Shannon testified that she visits J.B.B. about twice a month and that she has taken him home with her on weekends. According to Shannon, his relationship with N.B.B. has improved. Shannon does not believe that an average family would be able to take care of J.B.B. because he needs 24/7 supervision. And, although she would like to have J.B.B. stay with her in her home, Shannon realizes she is not trained to deal with J.B.B.'s needs. N.B.B. has told Shannon that, although she misses her brother, she does not miss having to take care of J.B.B., cleaning him up when he soils himself, or fixing him food and drink. According to Shannon, N.B.B. is now enjoying being a little girl. Shannon testified that N.B.B. is doing very well in school and is getting involved in things she was never involved with before. She is in an anti-drug organization at school; she competed in a UIL reading competition; she is playing league softball; and she is considering being a cheerleader. N.B.B. was not able to experience these things when her mother was alive because of J.B.B. Because J.B.B. needed 24/7 care, Sharon could not easily leave the house. J.B.B. had mood swings, and sometimes Sharon had difficulty handling his temper tantrums. If they went to a restaurant, J.B.B. would throw himself down on the floor. He had aggressive spurts quite often when he did not get what he wanted. N.B.B. had to do a lot for her brother because Sharon was tired, especially toward the end of her life. As a result, N.B.B. had a lot of resentment against J.B.B. According to Shannon, shortly before she died, Sharon made a will in which she named Shannon guardian of the children.
Shannon testified that she wants custody of the children. According to Shannon, it was Sharon's wish that she have them, and John has not had enough contact with them to be able to care for them, especially J.B.B. Shannon is district operations manager of twelve auto parts stores in San Antonio and earns about $40,000 a year.
Shannon testified that when N.B.B. and J.B.B. returned from their visit with John at the end of July 2005, N.B.B. was very angry and had a sour attitude. N.B.B. said that although she had a wonderful time in Florida, she had to "clean up" J.B.B. and had to share a room with him.
Ophelia Stephens, a Qualified Mental Retardation Professional, is a caseworker at The Willows where J.B.B. is in residential treatment. In his initial evaluation, it was noted that J.B.B. had a history of being stubborn and noncompliant. After being admitted, he had episodes of physical aggression, self-interest behaviors, temper tantrums, and noncompliance. He also left his bedroom by going out of a window. And, there has been an increase in his hitting and temper tantrum behaviors. Thus, he has been prescribed Zoloft. However, J.B.B. has improved in his ability to communicate. He is working on toileting skills, and his hygiene has improved. According to Stephens, the ideal situation for a child like J.B.B. is to be out of a large facility and placed at home with his family, a foster home, or a group home. However, his caregivers would need to be trained to handle his behavior. Child care, crisis intervention, and counseling would be needed.
Leslie Brown, a counselor at Poteet Independent School District, testified that she has counseled N.B.B. They started talking when Sharon became ill and talked some after Sharon passed away. N.B.B. has expressed anxiety over where she is going to live. She is doing well where she is and would like to stay there. She is well adjusted and has good grades and attendance at school. According to Brown, Shannon has been very supportive of N.B.B. in school.
The trial judge interviewed N.B.B. in chambers on the record. N.B.B. had written some items on a piece of paper that she presented to the judge. N.B.B. told the judge she would like to stay and live with Shannon. She said she loves her father, but he has a bad temper. According to N.B.B., he raises his voice, and she remembers that when she was little he would throw things. N.B.B. stated that he sometimes hit her mother. And, according to N.B.B., this summer her father hit her brother on the leg when he messed in his pants because of his disability. N.B.B. does not feel like she can connect with her father. She is afraid he will hit her the way he used to her hit her mom. She is afraid of him. According to N.B.B., when she was a little girl, her father hit her with his hand and busted her lip. N.B.B. further stated that her brother is doing well at The Willows, and she is doing well in school.
N.B.B. likes her father's girlfriend, Sandra. Sandra is good with J.B.B. However, according to N.B.B. when she and her brother visited her father in Florida, N.B.B. sometimes had to help Sandra with J.B.B.
Standard of Review
In family law cases such as this, we review the trial court's rulings under an abuse of discretion standard. Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.--San Antonio 2007, no pet.). A trial court abuses its discretion if it acts without reference to guiding rules or principles, or acts arbitrarily or unreasonably. Id. Under an abuse of discretion standard, challenges to the legal and factual sufficiency of the evidence are not independent grounds of error; rather, they are simply factors in assessing whether the trial court abused its discretion. Id. When an appellant challenges the legal and factual sufficiency of the evidence in cases where the proper standard is abuse of discretion, we engage in a two-prong analysis: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. Id. In determining whether the trial court had sufficient information, we use the traditional standard of review for legal and factual sufficiency. Id.
Discussion
In his first issue on appeal, John argues that Shannon, a non-relative, has no standing under section 102.003 of the Texas Family Code to participate in this suit affecting the parent-child relationship. It is apparent, however, that the trial court found that Shannon had standing under a different section of the Texas Family Code: section 102.004(b). That section provides that
the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006) (emphasis added). Thus, in order for Shannon to have standing as an "other person" under this section, there must be evidence that (1) she had substantial past contact with the children; and (2) appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. See id.
The evidence shows that Shannon indeed had substantial past contact with both N.B.B. and J.B.B. for a period of about four years before Sharon's death and before John filed suit. Shannon testified that she was good friends with Sharon while they were neighbors, that Sharon had become like a second mom to her, and that she saw the children every day. Shannon often took care of the children and spent holidays with the children and Sharon. Thus, there was legally and factually sufficient evidence that Shannon had substantial past contact with the children.
Furthermore, the evidence was legally and factually sufficient to support the trial court's finding that appointing John sole managing conservator would significantly impair the children's physical health or emotional development. Our discussion of this issue is applicable not only to John's first issue on appeal, which challenges Shannon's standing, but also to John's third issue on appeal in which he argues that the evidence was legally and factually insufficient to rebut the parental presumption required by section 153.131 of the Texas Family Code. The parental presumption section provides that
unless the court finds that appointment of the parent or parents 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 or both parents shall be appointed as joint managing conservators of the child.
Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002). Thus, both John's standing issue and his parental presumption issue depend upon whether there was sufficient evidence to support a finding that appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Further, in John's second issue on appeal, he challenges some, but not all, of the trial court's findings of fact and conclusions of law. The trial court's findings and conclusions relate, for the most part, to this same issue of whether the appointment of John as sole managing conservator would significantly impair the children's physical health or emotional development. Therefore, we will combine our discussion of all three of John's issues on appeal.
John argues that there is no evidence that he was abusive to his children or would likely cause physical and/or emotional harm to his children in the future. The evidence shows otherwise. After John and Sharon separated and Sharon moved to Texas, John never visited the children in Texas until May 2005 when Sharon was very ill. He saw J.B.B. on only two other occasions and N.B.B. on three other occasions when they came to Florida to visit him. Because J.B.B. needs constant care, while John went to work, his girlfriend and N.B.B. cared for J.B.B. Several weeks before Sharon died, Sharon and her doctor asked John to take J.B.B. to Florida, but he refused because he did not want to separate the children. This resulted in Sharon having to place J.B.B. in a residential treatment center, The Willows, because he was too hard for her to handle as her illness worsened. N.B.B. had to go live with Shannon.
John's plans for the children include having them come to Florida to live with him and enlisting the help of his family and girlfriend. He plans to place both children in public school and J.B.B. in a special Olympics program after school. Although it is necessary for J.B.B.'s caretaker to have special training, John has not received that training.
In addition to N.B.B. and J.B.B., John has four other children, all by different mothers. He did not support his children until the court required him to do so, and he is behind on child support payments. John makes $500 a week working at a family-owned business, but child support for his other children is deducted from that amount.
When N.B.B. and J.B.B. visited John in Florida in the summer of 2005, N.B.B. returned from the visit very angry because she had to take care of J.B.B. while they were in Florida. N.B.B. also had to help her mother take care of J.B.B., especially toward the end of her mother's life, which caused her to resent him. Now that N.B.B. is not having to help care for J.B.B., she is doing very well in school, is participating in activities, and is enjoying being a little girl.
N.B.B. testified that, although she loves her father, he has a bad temper, raises his voice, and throws things. She remembers that he sometimes hit her mother. This past summer, he hit her brother, J.B.B., because J.B.B. soiled his pants. And, according to N.B.B., when she was little, he hit her once on her lip. N.B.B. is afraid of her father and fears that he will hit her the way he used to hit her mom.
Given this evidence, the trial judge could have easily found that appointing John as joint managing conservator with the right to determine place of primary residence would significantly impair both children's physical health or emotional development. John had had little contact with his children since they moved to Texas. He apparently had relied in the past and intended to rely in the future on N.B.B., his girlfriend, and other family members to care for J.B.B. He seemed to have little understanding of J.B.B.'s constant and substantial needs. His past behavior showed an unwillingness to support his other children as well as N.B.B. and J.B.B. And perhaps most compelling, N.B.B. testified to his violent temperament that caused her to be fearful of him. Thus, the trial court did not err in finding that appointment of John as joint managing conservator with the right to determine place of primary residence would significantly impair the children's physical health or emotional development.
We note that John specifically challenges Findings of Fact Nos. 7, 11, 13, 14, 15, 16, 41, and 42, and Conclusions of Law Nos. 3, 5, 6, 7, and 8.
In Finding of Fact No. 7, the trial court found that the children had not lived in the same home as their father since sometime in 2000. Although the testimony is conflicting and somewhat confusing, there is sufficient evidence to support this finding. John's father testified that Sharon and the children moved to Texas around 1999 to 2000. John testified that Sharon and the children moved to Texas sometime in 2001 or 2002.
In Finding of Fact No. 11, the trial court found that Sharon and her doctor asked John to take J.B.B. in the spring of 2005 and John refused. The evidence shows that Sharon's doctor spoke to John to explore ways to make Sharon's difficulty in handling J.B.B. easier. According to the doctor, John understood what the doctor was trying to tell him, but gave no feedback. According to John, he received a phone call from Sharon's doctor who asked him to help Sharon with J.B.B. John then spoke to Sharon who told him J.B.B. was too hard for her to handle with her illness. John's response to Sharon's request for help was that he and Sharon had always agreed not to separate the children, so he refused to take J.B.B. Thus, although John explained why he refused to take J.B.B. when Sharon and her doctor asked for help, the evidence is nevertheless sufficient to support the trial court's finding.
In Finding of Fact No. 13, the trial court found that N.B.B. saw her father hit her brother during the visit in the summer of 2005. John points out that several of his family members testified that they had never seen John hit J.B.B. And, N.B.B. had stated in the past that John had not hit J.B.B. However, N.B.B. did tell the judge during the hearing that during the summer of 2005 she had seen John hit J.B.B. because J.B.B. had soiled his pants. Thus, although the evidence was conflicting, it was for the trial judge to assess the credibility of the witnesses. Therefore, the evidence was sufficient to support Finding of Fact No. 13.
In Finding of Fact No. 14, the trial court found that in July 2005, Sharon made a video statement in which she indicated John was too unstable to have possession of the children and that she wanted Shannon and Shannon's mother to have custody of the children. In Finding of Fact No. 15, the trial court found that Sharon indicated in the videotape that one reason John was unstable was due to his consumption of alcohol. In Finding of Fact No. 16, the trial court found that Sharon indicated in the videotape that N.B.B. told her that she wanted to stay with Shannon and that N.B.B. did not feel "safe" with John. John challenges Findings of Fact Nos. 14, 15, and 16 for the reason that, although the trial judge watched the videotape, it was never admitted into evidence and therefore is inadmissible hearsay. However, the contents of the videotape came in through the testimony of Taber, the social study investigator, Shannon, and N.B.B. Also, there was testimony from John that he had been convicted of DUI in 1991 and had had his driver's license suspended numerous times. Further, there was no hearsay objection during the hearings; therefore any hearsay objection was waived. Tex. R. Evid. 802 ("Inadmissible hearsay admitted without objection shall not be denied probative value merely because it is hearsay").
In Finding of Fact No. 41, the trial court found that N.B.B. made it very clear to the court that she did not want to live with her father. John points out that Taber, the social study investigator, testified that N.B.B. told her she would be fine if she had to live with her dad. And John testified that he and N.B.B. have a great time together. Nonetheless, N.B.B. made statements to the trial judge that she did not want to live with her father, that he has hit her in the past, that he hit her brother, that he hit her mom, and that she is afraid of him. The evidence is sufficient to support the trial court's finding.
In Finding of Fact No. 42, the trial court made a finding that N.B.B. had made some statements that if she were forced to live with her father, she would run away. This evidence came from Taber who reported that Shannon said she feared N.B.B. would run away if she had to live with her father. Again, any hearsay objection to Taber's testimony has been waived. See Tex. R. Evid. 802.
Further, we note that although John has challenged certain trial court findings, he has not challenged the vast majority of the court's findings. Unchallenged findings are binding on the appellate court unless the contrary is established as a matter of law or unless no evidence supports the finding. Davey v. Shaw, 225 S.W.3d 843, 853 (Tex. App.--Dallas 2007, no pet.).
The findings of the trial court that John has failed to challenge can be summarized as follows:
1. The children the subject of this suit are N.B.B. and J.B.B.
2. Sharon and John are the biological parents of the children.
3. Sharon died on September 22, 2005.
4. J.B.B. is moderately to severely mentally retarded.
5. The children lived continuously with Sharon from birth until one month before her death when N.B.B. began living with Shannon and J.B.B. began living at The Willows.
6. Sharon lived in Florida with the children until July 3, 2002, when she moved to Texas.
7. Sharon and John did not live together for approximately one year prior to her move to Texas.
8. From the time Sharon moved to Texas until her death, John had three visits with the children.
9. When N.B.B. and J.B.B. returned from the summer 2005 visit with John, N.B.B. had changed from an outgoing friendly girl to a quiet, wary one, and she told Shannon that she had been responsible for her brother's care while they were in Florida.
10. Sharon placed J.B.B. in The Willows and N.B.B. began living with Shannon shortly before Sharon died.
11. J.B.B.'s behavior became increasingly difficult to control as he became older and larger.
12. Due to J.B.B.'s mental retardation, he was generally nonverbal, his hygiene was extremely poor, and he was not toilet trained and wore diapers.
13. J.B.B. did not function well in the special education classes offered by the public school.
14. J.B.B. often had temper tantrums.
15. Because all of Sharon's energy went to J.B.B., N.B.B. was resentful of her brother and was unable to participate in normal childhood activities outside of the home.
16. J.B.B. requires 24-hour trained, specialized care.
17. The optimum placement for J.B.B. would be in a home setting with persons who have received proper education and training.
18. John's plan was to remove J.B.B. from The Willows and have him at home, put him in public school, and sign him up for a special Olympics program. However, John had made no significant attempts to find out about the special education programs his local school had to offer or what outside resources were available to him for J.B.B.
19. John appeared to have no realistic idea what level of care J.B.B. actually required, and he was simply intending to rely on his girlfriend and his mother to care for J.B.B. while he was working.
20. John has six children with four different mothers. His two oldest children live in Brazil with their mother.
21. John has paid very little, if any, child support for N.B.B. and J.B.B.
22. John did not pay child support for his other two children until court-ordered to do so. John has some contact with his youngest child, but he does not see his 13-year old because of some unspecified problem with that child's mother.
23. John works for his brother with a gross monthly income of $2,000. He is buying his home from his brother who appears to allow him to make payments at his convenience.
24. John's current girlfriend has been with him for several years and does not work outside the home. At the time of trial, John's girlfriend had left the country to be with her ailing mother and had not indicated when she would return.
25. John testified that he had about $300.00 per month left to support himself and anyone living with him after paying his house payment. John drives a company vehicle as his personal vehicle.
26. Although J.B.B. continued to have behavioral problems at The Willows, he had made some improvements.
27. Neither John nor Shannon had obtained training in caring for J.B.B.
28. N.B.B. had made excellent grades in school and had exemplary behavior. N.B.B.'s resentment of J.B.B. had virtually disappeared.
29. N.B.B. and Shannon visit J.B.B. about once a week and take him home about once a month.
30. N.B.B. has been able to re-establish a relationship with her adult half brother who lives in San Antonio.
After reviewing the record, we find these unchallenged findings are supported by the evidence and, therefore, are binding on this court. See Davey, 225 S.W.3d at 853
In addition to challenging certain findings of fact, John also challenges Conclusions of Law Nos. 3, 5, 6, 7, and 8. In Conclusion of Law No. 3, the trial court found Shannon had standing under the Texas Family Code as a person with substantial contact. As previously discussed, the evidence shows that Shannon did have substantial contact with the children.
In Conclusion of Law No. 5, the trial court found that the statutory presumption that John should be appointed as sole managing conservator or joint managing conservator with the right to determine primary residence has been rebutted. In Conclusion of Law No. 6, the trial court found that the presumption is rebutted because the appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair both children's emotional development. In Conclusion of Law No. 7, the trial court found that the presumption is rebutted because appointment of John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair J.B.B.'s physical development. And, in Conclusion of Law No. 8, the trial court found that because of Conclusions of Law Nos. 6 and 7, it is not in either child's best interest that John be appointed sole managing conservator or joint managing conservator with the right to determine the primary residence. All of these challenged conclusions of law relate to whether appointing John as sole managing conservator or joint managing conservator with the right to determine the primary residence would significantly impair the children's emotional and physical development. As previously discussed, the evidence was sufficient to support such a finding, and the trial court did not abuse its discretion.
Therefore, we overrule all three of John's issues on appeal and affirm the trial court's order.
Karen Angelini, Justice