May v. May
829 S.W.2d 373, 1992 Tex. App. LEXIS 978, 1992 WL 75454 (1992)
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Rule of Law:
A natural parent shall be appointed managing conservator unless the court finds, by specific evidence, that appointment of the parent would significantly impair the child's physical health or emotional development; serious past illegal conduct, such as drug use and sales within the home where children reside, can support a logical inference of such impairment, even if it occurred two years prior, especially when there is no evidence of rehabilitation.
Facts:
- Susan Ann May and Robert May, Jr. began living together in a common-law marriage sometime in the early 1980s.
- Two children, Brandie Starr Hurrell (born February 1984) and Krystale Gen May (born July 1987), were born during their relationship, with Robert acknowledged as the father of both.
- In July 1988, Susan and Robert separated after both were arrested and convicted of drug-related offenses occurring in their home.
- While the children were present in 1988, Susan and Robert were involved in using and selling illegal drugs from their home.
- Susan was convicted of felony delivery of marihuana, and Robert was convicted of misdemeanor possession of marihuana from the 1988 incident.
- Robert admitted to using marihuana two years prior to the custody hearing but claimed to have been 'clean and straight' since then, without offering evidence of rehabilitation.
- For approximately a year and a half before the custody hearing, the children resided with their maternal grandfather, William H. Hurrell, Jr., in New York.
- Robert did not pay support for the children and visited them only once for a week during the year of the hearing, though he called them monthly.
Procedural Posture:
- Susan Ann May and Robert May, Jr. sought a divorce and resolution of child custody.
- Prior to the final divorce and custody hearing, Betty Kelone, the children's maternal grandmother, was appointed temporary managing conservator on April 3, 1990, under temporary court orders.
- The trial court (referred to as the 'trial court') conducted a divorce and custody hearing on November 13, 1990.
- Following the hearing, the trial court entered a final decree of divorce, appointing William H. Hurrell, Jr., the children's maternal grandfather, as the sole managing conservator and naming Susan and Robert as possessory conservators.
- Robert A. May, Jr. (appellant) appealed the trial court's order to the Texas Court of Appeals, Corpus Christi, arguing that the court erred by not appointing him as managing conservator of his children.
- The Texas Court of Appeals considered a motion for rehearing in the case, which led to the withdrawal of its original opinion and the substitution of the current opinion.
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Issue:
Does a natural parent's admitted past involvement in drug use and sales within the family home, two years prior to a custody hearing, constitute sufficient evidence of significant impairment to a child's emotional development to justify awarding custody to a non-parent under Texas Family Code § 14.01(b)(1)?
Opinions:
Majority - Dorsey, Judge
Yes, a natural parent's past involvement in drug use and sales within the family home, two years prior to a custody hearing, can constitute sufficient evidence of significant impairment to a child's emotional development to justify awarding custody to a non-parent. The Texas Family Code § 14.01(b)(1) presumes parental custody unless it would significantly impair a child's physical health or emotional development, requiring evidence of specific actions or omissions demonstrating significant harm. The court found that serious violations of the law, such as drug use and sales, particularly when committed in the home where children reside, would set an unacceptable standard and significantly impair their emotional development. While past misconduct alone may not be controlling, an adult's future conduct can be measured by recent deliberate past conduct in similar situations. The passage of two years since Robert's last proven drug violation did not conclusively negate the inference that his deliberate past drug-related conduct was indicative of behavior likely to continue, especially given his admission of past use and the absence of any evidence suggesting rehabilitation. Therefore, there was factually sufficient evidence to support the trial court's finding of significant impairment and its decision to appoint the maternal grandfather as managing conservator. The court also clarified that a trial judge cannot judicially notice testimony from a prior temporary conservatorship hearing in the subsequent divorce and custody hearing, and thus, only evidence from the November 13, 1990, hearing was considered.
Analysis:
This case clarifies the high evidentiary bar for overcoming the strong presumption in favor of parental custody in Texas, emphasizing that 'significant impairment' requires proof of specific harmful actions or omissions. It establishes that serious past illegal conduct, such as drug use and sales in the children's home, can be directly linked to a risk of future harm to a child's emotional development, even if the conduct is not recent. The ruling highlights the importance of a parent demonstrating genuine rehabilitation or a change in circumstances to rebut the inference of continued harmful behavior drawn from past actions. This precedent provides guidance on how courts should weigh a parent's past misconduct, especially concerning substance abuse, in the context of current custody determinations.
