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Click here for the full text of this decision FACTS:Tammy and Douglas Whitworth married in August 2000, but separated in September or October 2000. Douglas filed an original petition for divorce a couple of months later. Tammy filed a second original petition for divorce, and the trial court signed an order of consolidation. Tammy and Douglas’ only child, K.C., was born on June 13, 2001. On Nov. 30, 2001, the trial court entered an order giving Tammy custody of K.C. The trial court also gave Douglas two hours a day of visitation five days a week and ordered him to pay $500 a month to Tammy as temporary spousal support. Three months later, Tammy filed a motion for enforcement of temporary spousal support. Almost one year after the trial court gave Tammy custody, the trial court heard the parties’ application for temporary custody orders pending the divorce. No transcripts exist of those hearings, but testimony from the divorce hearing indicated that the trial court heard testimony that Tammy repeatedly denied Douglas access to K.C., alleged that Douglas sexually abused A.C., K.C.’s half-sister, and feared his unsupervised visitation with K.C. Douglas repeatedly denied these allegations, and authorities found no evidence supporting Tammy’s claims. The testimony further indicated that, during the course of the earlier hearing, the trial court ordered Tammy to have her mother Gayle Cash bring K.C. to the court and warned her numerous times that she would be held in contempt if she did not, but Tammy did not have K.C. brought to the court. The docket sheets reflect that, at the end of the Friday hearing, the trial court found Tammy in contempt and sentenced her to 10 days in jail for “continuous parental alienation against father through repeated visitation/access denials and behavior in court.” On the same day as the Friday hearing, Carol Whitworth, Douglas’ mother, filed an original petition for intervention stating that she was K.C.’s paternal grandmother and requesting that K.C. be placed in her care on “a temporary and/or permanent basis.” Tammy stayed in jail for the weekend and appeared in court for the continuation of the hearing on Monday. At the end of the hearing, the trial court entered an order appointing Carol, the intervening grandparent, as temporary sole managing conservator of K.C. and Tammy and Douglas as temporary possessory conservators with only supervised rights of possession for four hours every other week through the SAFE Supervised Visitation Program of the Victim’s Assistance Center (SAFE). The docket sheet from the Monday hearing stated that Tammy and her mother Gayle Cash had “exercised continuous parental alienation against father through repeated visitation/access denials and behavior in court during this hearing” and that supervised visitation was ordered because of the seriousness of the allegations against Douglas and the fact that the trial court deemed Tammy a “flight risk with child as demonstrated by her behavior to court since 10/18/02 [the Friday hearing].” The trial court ordered Dr. Edward Silverman to conduct psychological evaluations of Tammy, Douglas and Carol. The trial court ordered Tammy and Douglas to pay Carol child support for K.C. and to ensure the maintenance of health insurance for K.C. The trial court also enjoined Tammy from telephoning Carol and from going within 50 feet of Carol’s residence. Four months later, the trial court also enjoined Tammy and Douglas from taking photos of K.C. while she was at SAFE. More than one year later on April 13, 2004, the trial court heard evidence to determine custody of two-year-old K.C. At the time of trial, Douglas was not seeking primary custody of the child. The trial court entered a final decree of divorce stating that neither Tammy nor Douglas would be the managing conservator of K.C., because it “would not be in the best interest of the child because such appointment would significantly impair the child’s physical health or emotional development.” The decree ordered that Carol, the intervening grandparent, be appointed as the sole managing conservator of K.C. The trial court found that a standard possession order for either Tammy or Douglas was inappropriate and not in the best interest of K.C. It ordered that Tammy continue to have only supervised visitation for four hours every other Saturday and that Douglas have supervised visitation to be determined by his mother Carol. The trial court entered no findings of fact or conclusions of law. Two months later, Tammy filed a motion for new trial, which the trial court denied. Tammy appealed. The 1st Court of appeals originally reversed and remanded the trial court’s custody order but then issued an opinion on rehearing. HOLDING:Affirmed. Tammy, the court stated, argued that the trial court erred by appointing Carol as the sole managing conservator with primary physical possession of K.C. and giving Tammy a less-than-standard possession order. Tammy contended that awarding managing conservatorship to Carol violated Texas Family Code �153.131 and her due-process rights under the U.S. Constitution. The court reviewed the trial court’s determination of conservatorship for abuse of discretion. There is a strong presumption, the court stated, that the best interest of a child is served if a natural parent is appointed as a managing conservator. For the court to award managing conservatorship to a nonparent under �153.131, the court stated, the nonparent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. The nonparent, the court stated must offer evidence of specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. In this case, the court found that during the divorce trial, the trial court heard testimony from numerous witnesses who presented the trial court with specific, credible evidence that if the trial court gave Tammy managing conservatorship, K.C.’s emotional health would be significantly impaired. First, the court found evidence presented to the trial court that Tammy has a history of subjecting K.C. to repeated investigations for claims of sexual and physical abuse when there was no evidence of abuse. Moreover, the court found evidence that if Tammy was given managing conservatorship, she would continue to make such “very specific and graphic claims of abuse” and significantly impair K.C.’s emotional health. Second, the court found evidence that Tammy has a history of denying K.C. any contact with her biological father and that Tammy would continue to do so if awarded managing conservatorship, a situation that would significantly impair K.C.’s emotional health. Based on its review of the evidence, the court concluded that the trial court did not abuse its discretion in appointing Carol as sole managing conservator of K.C. after finding by a preponderance of credible evidence that appointing Tammy as a managing conservator would result in serious physical or emotional harm to K.C. The court also held that the trial court did not abuse its discretion in awarding Tammy less than standard possession. OPINION:Hanks, J.; Hanks and Nuchia, J.J. DISSENT:Keyes, J. “The majority has reversed itself sua sponte. Because I believe the majority’s unprecedented and aberrant construction of the Texas Family Code in affirming the family court’s actions is unconstitutional and contrary to the established law of this State and its failure to address the dispositive statutory and constitutional issues raised by the appellate briefs and by the motion for rehearing is contrary to our mandatory statutory duty to address”every issue raised and necessary to final disposition of the appeal,’ I dissent.”

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