Insufficient Evidence of Significant Impairment

When the parents of D.R.T. sued each other for divorce, each sought managing conservatorship of their child. The child’s paternal grandmother and step-grandfather attempted to intervene, but the trial court struck their petition for intervention for lack of standing. In re D.R.T., No. 11-12-00059-CV (Tex. App. – Eastland Feb. 28, 2014) (mem. op.).

The grandparents sough standing under section 102.004(b) of the Texas Family Code, which allows a grandparent to intervene in a SAPCR

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.

The court of appeals affirmed the trial court, rejecting five complaints of significant impairment:

  1. One slap of the mother by the father, several years ago, “failed to show how any isolated incidents of physical abuse, which occurred during a now dissolved marriage, would substantially impair D.R.T.’s physical health or emotional development.”
  2. The grandparents urged that the mother had severely neglected the child by remaining in an abusive marriage. But the court of appeals stated, “The Texas Supreme Court has held that evidence that a parent is a victim of spousal abuse is no evidence that awarding custody to that parent would significantly impair the child,” citing Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990).
  3. The grandparents “failed to connect any current substance abuse” on the part of either parent when the parents testified that they had ceased drinking alcohol excessively and no longer abused drugs. “Although [father] and [mother] both admitted to prior illegal drug use, this behavior is not necessarily indicative of either’s present fitness as a parent. See Critz v. Critz, 297 S.W.3d 464, 475 (Tex. App. – Fort Worth 2009, no pet.) (“If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling.”) (quoting May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied).”
  4. The grandparents’ argument that the mother’s undocumented immigrant status would substantially impair the child relied on speculation.
  5. That the parents used to make pornographic movies of themselves and post them on the Internet did not substantially impair the child:

First, a parent will not be denied child custody based on evidence that merely raises a surmise or speculation of possible harm, and Appellants’ claim is based on a purely hypothetical situation. . . . . Second, the fact that D.R.T. may one day come across internet pornography produced by her parents bears no relationship to the determination of whether the child would be substantially impaired by being placed in the custody of either or both of her parents.

Further, the trial court did not abuse its discretion when it refused the grandparents’ request for a continuance based on the need for discovery because the grandparents “did not timely conduct discovery, did not exercise due diligence in seeking to obtain the desired discovery, and they also failed to show the materiality of the discovery sought.”

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