In the Interest of M.C.G., A Child--Appeal from 310th District Court of Harris County
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Affirmed and Opinion filed September 16, 2010.
In The
Fourteenth Court of Appeals
NO. 14-09-00643-CV
IN THE INTEREST OF C.L., A CHILD
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2006-18160
NO. 14-09-00644-CV
IN THE INTEREST OF M.C.G., A CHILD
On Appeal from the 310th District Court
Harris County, Texas
Trial Court Cause No. 2003-19119
OPINION
Appellant Lonzell Gholston appeals from the trial court’s order terminating his
parental rights to his daughter, M.C.G., and removing his status as possessory
conservator of M.C.G.’s half-sister, C.L. We affirm.
BACKGROUND
M.C.G. and C.L. lived with their mother until March 2006, when appellee
Department of Family and Protective Services (―DFPS‖) removed them from her home.
At the time, M.C.G. was three years old, and C.L. was fourteen months old. Their
mother often left them home alone for extended periods of time, and when DFPS arrived
to investigate, they found the children alone and C.L. sick and wearing only a diaper.
Appellant and the mother were not living together at this time, and C.L.’s father is
unknown. The children were removed and placed in foster care. DFPS was appointed as
the sole managing conservator of both children, the mother was given no possessory
rights, and appellant was appointed a possessory conservator with rights to visit the
children at mutually agreeable times.
Appellant visited the girls frequently and maintained his relationship with them
until September 2, 2008, when the trial court entered an order suspending his visitation
rights. The order was entered after the girls returned from a visit with appellant and
reported to their foster parents that they had gone to a birthday party and seen their
mother, who was prohibited from any contact with the children, and seen a cousin that
M.C.G. reported had sexually abused her (although there is no evidence that she reported
the abuse before she saw him at the party). Further, C.L. had been hospitalized with an
asthma attack after appellant smoked during a visit. Appellant did not appeal from this
order suspending his visitations rights and has never taken any action to have his
visitation rights reinstated.
Two days after the order suspending visitation, DFPS filed a motion to modify
conservatorship and to terminate the parent-child relationship. DFPS sought, among
other things, to remove appellant as possessory conservator of C.L. and to terminate his
parental rights as to M.C.G. After a hearing, the court granted the motion and also
terminated the parental rights of the children’s mother and the unknown father of C.L.
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Appellant brings this appeal; appellant is the only party challenging the trial court’s
order.
ANALYSIS
A. Parental Rights to M.C.G.
The termination of parental rights is a serious matter that implicates fundamental
constitutional rights. In re S.N., 287 S.W.3d 183, 186 (Tex. App.—Houston [14th Dist.]
2009, no pet.). To terminate parental rights, the trial court must find, by clear and
convincing evidence, that the parent has committed one of the acts prohibited under
Family Code section 161.001(1) and that termination of parental rights is in the child’s
best interest. TEX. FAM. CODE ANN. § 161.001(1), (2) (Vernon Supp. 2009); In re A.V.,
113 S.W.3d 355, 362 (Tex. 2003).
The trial court terminated appellant’s parental rights after finding that he
committed three of the acts listed in section 161.001 and that termination would be
M.C.G.’s best interest.
Appellant then, pursuant to Family Code section 263.405,
submitted to the trial court a statement of the points on which he intended to appeal. See
TEX. FAM. CODE ANN. § 263.405(b)(2) (Vernon 2008). Appellant’s appellate points
stated that the evidence is insufficient to support the three actions found pursuant to
subsections of section 161.001(1) but did not mention the court’s finding that termination
is in M.C.G.’s best interest. The trial court then determined that appellant’s intended
appeal did not present a substantial question for appellate review and was therefore
frivolous. See TEX. FAM. CODE ANN. § 263.405(d)(3) (Vernon 2008) (directing trial
court to determine whether appellate points are frivolous as provided by Civil Practice
and Remedies Code section 13.003(b)); TEX. CIV. PRAC. & REM. CODE ANN. § 13.003(b)
(Vernon 2002) (stating that frivolousness can be determined by considering ―whether the
appellant has presented a substantial question for appellate review‖).
If a trial court makes a frivolousness finding, the parent’s appeal is initially limited
to the frivolousness issue. See In re J.J.C., 302 S.W.3d 436, 442 (Tex. App.—Houston
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[14th Dist.] 2009, pet. denied); Lumpkin v. Dep’t of Family & Protective Servs., 260
S.W.3d 524, 526 (Tex. App.—Houston [1st Dist.] 2008, no pet.).
We can review
appellant’s substantive issues only if we determine the trial court abused its discretion in
determining appellant’s appeal was frivolous. See In re J.J.C., 302 S.W.3d at 442;
Lumpkin, 260 S.W.3d at 526. An appeal is frivolous if it lacks an arguable basis in either
fact or law. See In re J.J.C., 302 S.W.3d at 444; Lumpkin, 260 S.W.3d at 527.
In his appeal regarding M.C.G., appellant argues that the trial court erred in
finding each of his appellate points frivolous.
In his first issue regarding M.C.G.,
appellant argues that the trial court abused its discretion in finding frivolous his appellate
point that the evidence is insufficient to support the termination of his parental rights
under Family Code section 161.001(1)(F).
Section 161.001(1)(F) provides for
involuntary termination of parental rights if the court finds by clear and convincing
evidence that the parent has ―failed to support the child in accordance with the parent’s
ability during a period of one year ending within six months of the date of the filing of
the petition.‖ This one-year period must be twelve consecutive months. See In re
E.M.E., 234 S.W.3d 71, 72 (Tex. App.—El Paso 2007, no pet.); In re T.B.D., 223 S.W.3d
515, 518 (Tex. App.—Amarillo 2006, no pet.). DFPS filed its motion to terminate on
September 4, 2009, and thus the relevant time period is any twelve consecutive months
between March 4, 2007 and September 4, 2009. See In re E.M.E., 234 S.W.3d at 72.
The undisputed evidence in the record shows that in the twelve-month period
between March 4, 2007 and March 4, 2008, appellant gave no money whatsoever in
support of M.C.G. while earning income of at least $10,000 in 2007 and $3,500 in the
first two months of 2008. Appellant had the ability to provide at least some support
during these twelve months, but he provided none. Appellant argues that DFPS must
present evidence of his ability to pay during each month of the twelve-month period. See
id.; In re T.B.D., 223 S.W.3d at 518. The evidence in the record regarding appellant’s
income is not broken down on a monthly basis for the entire time period. However, even
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if appellant was unable to provide support during some of those months, that will not
interrupt the running of the one-year period if he made no effort to pay during other
months in which there is a clear ability to pay.1 See McGowen v. State, 558 S.W.2d 561,
565 (Tex. Civ. App.—Houston [14th Dist.] 1977, writ ref’d n.r.e.); see also In re C.M.C.,
No. 11-02-00270-CV, 2003 WL 760678, at *2 (Tex. App.—Eastland Mar. 6, 2003, no
pet.) (mem. op.) (following McGowen); In re S.K.S., 648 S.W.2d 402, 404 (Tex. App.—
San Antonio 1983, no writ) (same). It is undisputed that appellant had at least $13,500 in
income in the relevant time frame but provided no support at all. This is sufficient to
support a finding by clear and convincing evidence of a violation of section
161.001(1)(F).2 See In re R.N.G., No. 11-02-00084-CV, 2002 WL 32344622, at *3 (Tex.
App.—Eastland Dec. 12, 2002, no pet.) (not designated for publication) (finding parent
did not provide support in accordance with ability because she provided no support at all
even though she had some money available); In re S.K.S., 648 S.W.2d at 404–05 (same).
Appellant asserts that the ad litem told him at some point not to pay support but
instead to use that money to buy furniture for his apartment. However, appellant does not
explain when he was told this, how much money he used to buy furniture, and when he
bought the furniture. Furthermore, any excuse for failing to provide support, such as
using the money for another purpose, is irrelevant in assessing a violation under section
161.001(1)(F). See Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976) (concluding that
legislative purpose is best served by interpreting Family Code to mean that an excuse for
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Appellant argues that he could not provide support because he became disabled, but that did not
occur until April 2008 and thus has no bearing on his ability to provide support between March 2007 and
March 2008.
DFPS argues that the trial court’s March 2008 order for appellant to pay child support, from
which appellant did not appeal, constitutes an implicit finding that he had the ability to pay as a matter of
law. DFPS relies on In re J.M.M., 80 S.W.3d 232, 250–51 (Tex. App.—Fort Worth 2002, pet. denied),
which relied on the Corpus Christi Court of Appeals ruling in In re R.R.F., 846 S.W.2d 65 (Tex. App.—
Corpus Christi 1992, writ denied). We note that the In re R.R.F. decision has been severely criticized,
and the Corpus Christi Court of Appeals has since overruled that decision. See In re D.S.P., 210 S.W.3d
776, 780–81 (Tex. App.—Corpus Christi 2006, no pet.) (overruling R.R.F.); see also In re E.M.E., 234
S.W.3d at 73–74 (noting that In re R.R.F. has been overruled and following the rule in In re D.S.P.).
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act or omission of parent, including failure to support according to ability, ―can be
considered by the trial court only as one of the factors in determining the best interest of
the child‖ (emphasis added)); In re S.K.S., 648 S.W.2d at 405. Excuse is pertinent only
in the best interest assessment, and because appellant does not challenge on appeal the
trial court’s finding that terminating his parental rights is in M.C.G.’s best interest, we
cannot consider any excuse he may have for failing to provide any support.3 See In re
S.K.S., 648 S.W.2d at 405 (holding that because appellant did not challenge the best
interest finding, ―the contention as to an excuse for failure to make appropriate support
payments is inapplicable‖); see also Holley, 544 S.W.2d at 371.
The trial court could have properly concluded that appellant’s sufficiency
challenge as to the termination of his parental rights lacked a substantial basis in law or
fact. Thus, the trial court did not err in finding appellant’s appellant point regarding
section 161.001(1)(F) frivolous. Accordingly, we overrule appellant’s first issue relating
to M.C.G.4
B. Possessory Rights to C.L.
In his two issues relating to C.L., appellant challenges the sufficiency of the
evidence to support the trial court’s order removing his status as C.L.’s possessory
conservator. Under Family Code section 156.101(a)(1)(A), the trial court can modify an
order establishing conservatorship upon a showing that ―the circumstances of the child, a
conservator, or other party affected by the order have materially and substantially
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Appellant repeatedly notes that he was not ordered to pay child support during all of the relevant
time frame. However, a parent has a duty to support his child, regardless of a court order. See TEX. FAM.
CODE ANN. § 151.001(a)(3) (Vernon 2008); Ex parte Hall, 854 S.W.2d 656, 658 (Tex. 1993). Further,
the trial court specifically stated in its September 2007 modification order although it was not making a
specific support order at that time, appellant ―is still responsible for the support of the child.‖ Finally, any
excuse for failure to support, even the lack of an order, is a factor to be considered only in the best interest
analysis. See S.K.S., 648 S.W.2d at 405; see also Holley, 544 S.W.2d at 368, 371.
We need not address appellant’s second and third issues, in which he challenges the trial court’s
frivolousness finding as to his arguments that two other bases for terminating his parental rights were not
supported by sufficient evidence. See In re A.V., 113 S.W.3d at 362; see also TEX. FAM. CODE ANN. §
161.001(1).
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changed‖ since the rendition of the prior order and that the modification would be in the
child’s best interest. TEX. FAM. CODE ANN. § 156.101(a)(1)(A) (Vernon Supp. 2009).
We review a trial court’s conservatorship status decisions for an abuse of discretion. In
re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.). A trial
court abuses its discretion if it acts arbitrarily or unreasonably. Id.; Bates v. Tesar, 81
S.W.3d 411, 424 (Tex. App.—El Paso 2002, no pet.). There is no abuse of discretion if
some evidence of a substantive and probative character supports the trial court’s decision,
even if the evidence conflicts. See In re A.L.E., 279 S.W.3d at 428; Agraz v. Carnley,
143 S.W.3d 547, 554 (Tex. App.—Dallas 2004, no pet.). In an abuse of discretion
review, the sufficiency of the evidence is not and independent ground of error but is a
factor to be considered in evaluating the trial court’s exercise of its discretion. In re
A.L.E., 279 S.W.3d at 427.
In his first issue regarding C.L., appellant argues that the evidence is insufficient
to show a material and substantial change in circumstances. In determining whether a
material and substantial change has occurred, the trial court is not confined to rigid or
definite guidelines. Id. at 428. The court is looking for evidence of a change since the
prior order, but the law does not require any particular method for proving change of
circumstances. See id. at 429. A material and substantial change can be established by
circumstantial evidence, such as if the record shows that the trial court relied on facts or
events occurring after the date of the prior order. See id. The prior order establishing
appellant’s conservatorship status was entered on September 11, 2007. The hearing on
DFPS’s motion to modify appellant’s conservatorship status was held on June 16, 2009.
Therefore, we assess the record for evidence regarding a material and substantial change
in circumstances between September 11, 2007 and June 16, 2009. See In re A.B.P., 291
S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.); Zeifman v. Michels, 212 S.W.3d 582,
589 (Tex. App.—Austin 2006, pet. denied).
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The evidence shows several changes during this period. Appellant’s visitation
rights had been revoked on September 2, 2008, two days before DFPS filed the motion to
modify, from which appellant did not appeal. Thereafter, appellant had not seen and had
hardly spoken to C.L. for over nine months. During the time appellant was allowed
visitation, there is evidence that he allowed C.L.’s mother some access to her, which was
forbidden by court order.5 Further, appellant smoked cigarettes while C.L. visited, even
though C.L. has asthma, and after a visit, C.L. was hospitalized with a severe asthma
attack. Finally, C.L. was moved to a foster home with her sister, and the foster parents
are providing a safe environment and are meeting C.L.’s needs. The children have
bonded with their foster family, calling the foster mother ―mamma,‖ and the foster family
is willing to adopt them. Based on evidence of appellant’s inappropriate conduct during
the visits, his unchallenged loss of visitation rights, his lack of communication with C.L.,
and C.L.’s bonding with a foster family who wants to adopt her and her sister, the trial
court did not abuse its discretion in determining that there had been a material and
substantial change in circumstances since the prior order. We overrule appellant’s first
issue regarding C.L.
In his second issue regarding C.L., appellant alleges that the evidence is
insufficient to support a finding that removing him as possessory conservator is in C.L.’s
best interest.
The Family Code does not set forth any factors to be considered in
determining whether a change in conservatorship status is in a child’s best interest.
Bates, 81 S.W.3d at 433–34.
In the termination of parental rights context, courts
typically consider the non-exhaustive list of Holley factors, which are the desires of the
child, the emotional and physical needs of the child now and in the future, the emotional
and physical danger to the child now and in the future, the parental abilities of the
persons seeking custody, the programs available to assist these individuals seeking
Appellant denies that C.L.’s mother had access to him during their visitations, but the trial court
could have disbelieved appellant, and we defer to the trial court’s resolution of underlying facts. See In re
A.L.E., 279 S.W.3d at 427.
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custody, the plans for the children by the individual seeking custody, the stability of the
home, the acts or omissions of the parent that may indicate that the existing parent-child
relationship is inappropriate, and any excuse for the acts or omissions of the parent. See
Holley, 544 S.W.2d at 371–72. We can consider those factors as appropriate in this
context, but other factors are also important in the conservatorship modification context,
such as the child’s need for stability. See In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000);
Bates, 81 S.W.3d at 433–34. Further, unlike in the termination context, the parental
presumption does not apply in a modification suit and would not apply in this case in any
event because appellant is not C.L.’s father. See In re V.L.K., 24 S.W.3d at 339–40.
Appellant asserts that the evidence shows that removing his conservatorship status
is not in C.L.’s best interest. According to appellant, his visitation was going well until
he lost his visitation rights. He had stopped smoking and had taken parenting classes. He
had been making preparations for the girls to live with him, including getting a new
apartment and furniture. Though he was unable to fully support the girls at the time of
the hearing, appellant testified that the Veterans’ Administration would provide him
additional resources if he got custody of the girls. However, appellant’s analysis ignores
other important considerations. Appellant lost his visitation rights after C.L. had a severe
asthma attack when he smoked while she visited and after he violated a court order by
allowing C.L.’s mother access to her.
All that remained of appellant’s possessory
conservatorship rights were limited rights to such things as inquiring about C.L.’s well
being and accessing her medical records, but appellant never exercised any of these
rights.
Appellant had essentially no contact with C.L. for about nine months, and
meanwhile, she had bonded with her foster family who was meeting all her needs and
wanted to adopt C.L. and her sister. Given appellant’s lack of involvement in C.L.’s life,
removing appellant’s possessory conservatorship status actually preserves the child’s
current environment and clears the way for full adoption and parental rights by the foster
family, thereby promoting C.L.’s need for stability. We conclude that the evidence is
sufficient to support a conclusion that removing appellant’s possessory conservator status
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is in C.L.’s best interest. Therefore, the trial court did not abuse its discretion in so
finding, and we overrule appellant’s second issue as to C.L.
CONCLUSION
We conclude that the trial court did not abuse its discretion in finding frivolous
appellant’s appellate point that the evidence is insufficient to show he failed to provide
appropriate support within his ability to M.C.G. The trial court also did not abuse its
discretion in finding that there had been a material and substantial change of
circumstances and that removing his status as possessory conservator would be in C.L.’s
best interest. We affirm the trial court’s order terminating appellant’s parental rights to
M.C.G. and removing his status as possessory conservator of C.L.
/s/
Leslie B. Yates
Justice
Panel consists of Chief Justice Hedges and Justices Yates and Boyce.
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