in the Interest of S.M.E. ( 2003 )

Affirmed and Opinion filed January 16, 2003

Affirmed and Opinion filed January 16, 2003.

In The

Fourteenth Court of Appeals

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NO. 14-02-00350-CV

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IN THE INTEREST OF S.M.E.

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On Appeal from the 315th District Court

Harris County, Texas

Trial Court Cause No. 01-01754J

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M E M O R A N D U M   O P I N I O N

            This is an appeal by a grandmother from a judgment denying her possession of and visitation with her granddaughter, S.M.E. In five issues, the grandmother, Lillene Foster, contends: (1) the trial court erred in denying her a hearing de novo under section 201.015 of the Family Code; (2) the trial court erred in denying her the right to appeal the associate judge’s order; (3) the trial court erred in signing its order the same day as the associate judge signed her order; (4) the trial court erred in ruling that the associate judge’s order was a “Master’s Report”; and (5) the trial court erred in denying grandparent access to S.M.E.  We affirm.

                                                 Background

            S.M.E. is the daughter of Christopher Elrod and Leila Elrod, who married in 1999.  At the time of S.M.E.’s birth, Leila was separated from Christopher Elrod and lived with her mother, appellant Lillene Foster.  In fact, S.M.E. was born in Foster’s home.  Child Protective Services (CPS) removed S.M.E. from Leila and this suit commenced. 

            At trial, Christopher Elrod agreed to terminate his parental rights to S.M.E., hoping that his brother (with whom S.M.E. had been placed by CPS) could adopt her.  Leila was killed during the pendency of this lawsuit.

            Because Foster sought possession of S.M.E., most of the evidence at trial focused on her parental fitness and some of the more tragic aspects of Leila’s life.^[1]  The record was replete with testimony about Foster’s sexual abuse, poor parenting, and financial manipulation of Leila.

            Trial was before Sherry Van Pelt, appointed to serve as a special juvenile law master.  The master signed orders terminating Christopher Elrod’s parental rights to S.M.E. and denying Foster both conservatorship of and access to S.M.E.  The trial court adopted the master’s orders and then denied Foster an appeal de novo.

                          Appeal from the Master’s Order

            In her first four issues, Foster argues that Sherry Van Pelt was acting as an associate judge rather than a special juvenile law master.^[2]  Thus, Foster contends the trial court erred as follows: (1) in ruling that Sherry Van Pelt’s order was a “master’s report”; (2) in failing to hold a hearing de novo; (3) in denying the right to appeal; and (4) in signing its order less than three days after Sherry Van Pelt signed her report.

            If Sherry Van Pelt presided by appointment as an associate judge under the Family Code, her report could be appealed de novo to the district court.  Tex. Fam. Code Ann. § 201.015 (Vernon 2002).  However, appellant does not dispute the fact that Sherry Van Pelt was appointed to serve as a juvenile law master for the 315th District Court under section 54.681 of the Government Code.  Tex. Gov’t Code Ann. § 54.681 (Vernon 1998) (the “Harris County juvenile law master statute”); Avery v. State, 963 S.W.2d 550, 554 (Tex. App.—Houston [1st Dist.] 1997, no pet.) (discussing Judge Van Pelt’s appointment as master for the 315th District Court under the Harris County juvenile law master statute); cf. Tex. Fam. Code Ann. § 201.001 (Vernon 2002) (appointment of associate judges in family law cases).  In this case, the trial court specifically noted that the Harris County juvenile law master statute was controlling.

            Foster argues she is entitled to a de novo appeal and a second trial before the presiding judge because Sherry Van Pelt referred to herself as an associate judge and because her orders mention appeal to the district court under sections 201.013 and 201.015 of the Family Code.  We disagree. “[A] master or associate judge cannot preside under both the general family-law associate-judge statute and the special Harris County juvenile law master statute.”  Avery, 963 S.W.2d at 554.  Because Sherry Van Pelt was appointed to serve as a master under the Government Code, those specific provisions apply; not the more general provisions in the Family Code.  See id.

            Thus, the trial court did not err in ruling that Sherry Van Pelt’s order was a master’s report.  Further, the Government Code “does not provide an avenue of appeals from the master to the district court.”  Id.  Instead, “the court may adopt, modify, correct, reject, or reverse the master’s report or may recommit it for further information, as the court determines to be proper and necessary in each case.”  Tex. Gov’t Code Ann. § 54.697 (Vernon 1998) (emphasis added).  Therefore, the trial court did not err in denying a hearing de novo. Additionally, the Government Code does not impose a waiting period before the trial court may adopt the master’s report.  See id.  Accordingly, the trial court did not commit error by adopting the master’s report on the same day Sherry Van Pelt signed her report.

            Lastly, we would require Foster to show harm resulting from the master’s confusion and incorrect reference to appeal de novo under the Family Code.  Cf. In re D.I.B., 988 S.W.2d 753, 760 (Tex. 1999) (supreme court reviewed for harmful error the trial court’s confusion about which statute governed its authority to grant probation to juvenile murder defendant); Tex. R. App. P. 44.1(a) (reversible error is that which probably caused rendition of an improper judgment).  The language in the order regarding the right to appeal under the Family Code is obviously misleading.  Nonetheless, the record in this case does not reflect harm.  Even if Foster was entitled to file an appeal de novo to the district court under the Family Code, her notice of appeal was untimely. Section 201.015 of the Family Code requires an appeal to the district court “not later than the third day after the date the party receives notice of the substance of the associate judge’s report . . . .”  Such notice may be given orally in open court.  Tex. Fam. Code Ann. § 201.011(c)(1) (Vernon 2002).  The substance of Sherry Van Pelt’s decision was revealed orally to Foster and her attorney during the hearing on February 22, 2002.  Foster appealed to the presiding judge on March 8, 2002, several days after expiration of the statutory deadline.

            Accordingly, we overrule issues one through four.

                            Denial of Grandparent Access

            In her fifth issue, Foster contends the trial court abused its discretion in denying grandparent access to S.M.E. Section 153.433 of the Family Code permits grandparent access to a child under certain circumstances if such access is in the child’s best interest.  Tex. Fam. Code Ann. § 153.433 (Vernon 2002).  A trial court has wide discretion in determining the best interest of a child.  Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Lilley v. Lilley, 43 S.W.3d 703, 705 (Tex. App.—Austin 2001, no pet.).  A trial court abuses its discretion when it acts “unreasonably, arbitrarily, or without reference to any guiding principles.”  Lilley, 43 S.W.3d at 705.  If the trial court’s order is supported by sufficient evidence, there is no abuse of discretion.  Id.  Further, as the fact finder, the trial court resolves conflicts in the evidence and determines the weight and credibility to give to witness testimony.  Schneider v. Schneider, 5 S.W.3d 925, 931 (Tex. App.—Austin 1999, no pet.).

            Foster argues that she has been a part of one-year-old S.M.E.’s life since birth.  She testified she is capable of caring for S.M.E. and that Leila, through a signed power of attorney, wanted her to assist S.M.E. Foster is prepared to provide food, shelter, medical attention, a safe environment, finances, education, and extracurricular activities to develop S.M.E.’s potential. There is room for S.M.E. at Foster’s home.  Foster is employed with Humble Independent School District and arranged daycare for S.M.E.  Further, she contends that she has maintained a close relationship with her granddaughter through temporary grandparent access during the pendency of litigation.  She testified that she loves her granddaughter.  Foster’s father (S.M.E.’s great-grandfather) testified in support of Foster.  He claimed that Foster and Leila had a close, loving relationship.  He also denied that he ever sexually abused Leila or anyone else.

            In contrast to this testimony, S.M.E.’s father, the paternal uncle with whom she lives, her CPS caseworker, and her guardian ad litem all testified that it was not in S.M.E.’s best interest to maintain contact with Foster and the maternal family.  The evidence shows that before her death, Leila claimed sexual abuse by Foster and male family members.  Leila sought help at several women’s shelters.  Further, she witnessed her grandfather (S.M.E.’s great-grandfather) sodomizing younger cousins with a stick in 1999 at Foster’s home.  Adult Protective Services investigated Foster and other maternal family members for sexually abusing Leila, though such abuse was not confirmed.  The evidence further revealed that when Leila was fourteen, Foster arranged Leila’s first marriage to a fifty-seven-year-old attorney with whom Foster had a romantic relationship.  Additionally, Foster’s current live-in boyfriend was initially reported to be S.M.E.’s genetic father. 

            Further, testimony at trial indicated that Foster had manipulated her daughter for financial advantage.  Testimony indicated that she and Leila’s first husband/attorney split a $2.5 million settlement that Leila received as a child after a severe car wreck left her brain damaged.  A member of Foster’s family withdrew $10,000 from Leila’s account immediately after her marriage to S.M.E.’s father. Another family member lived on Leila’s land, which S.M.E. would inherit, and claimed that Leila had given it to him by a purported holographic will.  S.M.E.’s father was concerned that Foster would similarly manipulate S.M.E. for financial advantage.  The guardian ad litem testified that Foster discussed S.M.E.’s money in front of the child.  The case worker testified that Foster was overly concerned with material possessions. 

            Testimony at trial revealed that S.M.E.’s father and uncle were afraid of Foster and her family.  The uncle and CPS caseworker testified regarding an occasion when Foster, angry after her supervised visit with S.M.E., nearly drove her Lincoln Navigator into the uncle’s car (in which S.M.E. was a passenger).  While Leila was pregnant with S.M.E., she was badly burned in Foster’s home.  Although Foster claimed that Leila fell into the fireplace, it was intimated that Foster’s live-in boyfriend, a felon, might have caused Leila to fall.  Foster also threatened to take S.M.E. to live in the Cayman Islands.   

            Lastly, S.M.E.’s uncle testified that he feared Foster would not take care of S.M.E.’s special medical needs.  He explained that S.M.E. suffered from severe reflux and a hernia.  On one visit, Foster insisted on feeding S.M.E. mashed adult food, resulting in S.M.E. vomiting several times and having diarrhea.

            Considering all of the evidence in the record and the recommendations of the CPS caseworker and guardian ad litem, we cannot say that the trial court abused its discretion in denying grandparent access to S.M.E.  We thus overrule issue five.

            Having overruled all five issues, we affirm the trial court’s judgment.

                                                                        /s/        Charles W. Seymore

                                                                                    Justice

Judgment rendered and Memorandum Opinion filed January 16, 2003.

Panel consists of Justices Edelman, Seymore, and Guzman.

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            ^[1]  Leila sustained severe injuries, including brain damage in a car accident that occurred when she was seven years old.  She received a $2.5 million settlement paid on behalf of the defendants in litigation. When Leila was fourteen, Foster arranged Leila’s marriage to Leila’s fifty-seven-year-old attorney, a man with whom Foster had been romantically involved.  Apparently, there was evidence that Foster and the attorney misappropriated Leila’s money.  As an adult, Leila was diagnosed with mental illness and took medication for seizures. Shortly before her death, she had been confined at the Rusk State Hospital.  Leila was killed in a vehicle-pedestrian accident.

            ^[2]  She bases her assumption on the following paragraph, which was present in the order signed by the master:

THE PARTIES ARE GIVEN NOTICE OF THE RIGHT TO APPEAL THE FINDINGS AND RECOMMENDATIONS, AS REFLECTED BY THIS ORDER, OF THE UNDERSIGNED ASSOCIATE JUDGE BY FILING A MOTION TO APPEAL TO THE [TRIAL COURT], WITHIN THREE DAYS, PURSUANT TO SECTION § [sic] 201.015 OF THE TEXAS FAMILY [CODE].