Paula Brummett v. Harris County Childrens Protective Services ( 1994 )

Brummett v. Harris Co. Childrens Protective Services

IN THE

TENTH COURT OF APPEALS

No. 10-93-123-CV

     PAULA BRUMMETT,

                                                                                              Appellant

     v.

     HARRIS COUNTY CHILDRENS

     PROTECTIVE SERVICES, ET AL.,

                                                                                              Appellees

From the 308th District Court

Harris County, Texas

Trial Court # 90-44117

O P I N I O N

      This is an appeal by Appellant Paula Brummett from a judgment rendered on an instructed verdict in a modification of conservatorship case.

      Paula Brummett, the mother of Teri Harley, a three-year-old girl, was appointed managing conservator of Teri and two sons by a decree of divorce from William Harley on October 5, 1990. Paula soon thereafter married Ronnie Brummett.

      On November 4, 1991, Appellee Harris County Childrens Protective Services (hereafter referred to as HCCPS) took custody of Teri after investigating the sexual abuse of Teri by her stepfather Ronnie Brummett. HCCPS was appointed temporary managing conservator of Teri and temporarily placed her with her paternal aunt Sharon Lira.

      HCCPS filed this action to modify the October 5, 1990, divorce decree and to be appointed permanent managing conservator of Teri. Sharon Lira intervened seeking to be appointed Teri's permanent managing conservator. Appellant Paula Brummett then filed a counterclaim seeking dissolution of the HCCPS temporary managing conservatorship and for a reinstatement of her sole managing conservatorship of Teri and demanded a jury.

      A jury trial began February 15, 1993. During presentation of the HCCPS evidence, it was reflected that Appellant had continued to live with Ronnie for a time after she learned of the sexual assault on Teri but she was willing to divorce Ronnie if that would help her regain custody of Teri. There was evidence that Ronnie had been convicted of the sexual assault on Teri, sentenced to forty years in the penitentiary and was in the penitentiary at that time. There was further evidence that Teri had previously been sexually abused by her biological father, William Harley, and that he was living across the street from his sister, Sharon Lira, with whom HCCPS had placed Teri.

      After presentation of HCCPS's evidence and during the presentation of the paternal aunt Sharon Lira's evidence, the trial judge said to Appellant's attorney:

THE COURT:Mr. Haggerty, I would like for you to put your witness on the stand now, the biological mother. Come up.

[COUNSEL]:I have other witnesses also.

THE COURT:You have what?

[COUNSEL]:Other witnesses.

THE COURT:Sure you do, but I want you to hear this witness. Go ahead.

Thereupon, Appellant took the stand and testified that she was twenty-three years of age; that she had four children including Teri; that Teri's biological father sexually abused Teri in September 1991; that she called an attorney to try to get an order against him having visitation; that thereafter on November 1, 1991, she learned that Teri's stepfather Ronnie Brummett had sexually abused Teri; that she took Teri to the hospital; and that Ronnie admitted to the police that he had sexually abused the child.

      At this point, the trial judge instructed the bailiff to retire the jury and then stated:

"I am about to make an unusual and perhaps unprecedented statement. At this time I am going to issue an instructed verdict . . . I am going to make the biological mother and the biological aunt here joint managing conservators with the biological aunt as primary. Therefore, she will have the right to name the domicile, the religion and the school."

      The trial court signed its order on March 15, 1993, appointing Appellant and Sharon Lira joint managing conservators of the child with Sharon Lira having the right of physical possession of the child and the right to direct the child's religious training and to establish the child's residence. Appellant was accorded "supervised visitation" with her child.

      Appellant filed a motion for new trial asserting that she was not allowed to put on all of her evidence from herself plus the evidence from six named witnesses; that fact issues existed which should have been considered by the jury; and that the evidence adduced was not sufficient to show that she was not capable of taking care of and protecting her child at the present time.

Her motion for a new trial was denied.

      Appellant appeals the Order\Judgment rendered on the instructed verdict contending, among other matters, that the trial court erred in issuing an instructed verdict, in granting judgment thereon, and in overruling her motion for a new trial because she, the mother, was not granted the opportunity to present evidence through her witnesses, and was denied trial by a jury.

      None of the appellees have filed a brief.

      The presumption that the best interest of a child is served by awarding custody to a natural parent is deeply embedded in Texas law. Lewelling v. Lewelling, S.Ct., 796 S.W.2d 164. The natural right between parent and child is one of constitutional dimension and should not be disturbed except for the most compelling and serious reasons. The material time concerning fitness for child custody is at the time of trial and evidence of past misconduct or neglect is not of itself sufficient to show a parent's present unfitness for child custody. May v. May, Tex. App.—Corpus Christi) 829 S.W.2d 373.

      Texas Family Code section 11.13(a) provides in a suit affecting the parent-child relationship (except a suit in which adoption is sought) any party may demand a jury trial. The appellant-mother demanded a jury and a jury trial was in its second day when the trial judge stopped the evidence and issued the instructed verdict giving custody to the paternal aunt. The instructed verdict amounts to a denial of the mother's right to trial, denial of her right to trial by jury, and a denial of her day in court.

      The trial judge abused his discretion in instructing the verdict and in rendering the judgment thereon.

      Appellant's contention and point, supra, is sustained. The Judgment/Order of the trial court is reversed and the cause is remanded for trial.

                                                                               FRANK G. McDONALD

                                                                               Chief Justice (Retired)

Before Justice Cummings,

      Justice Vance, and

      Chief Justice McDonald (Retired)

Reversed and Remanded

Opinion delivered and filed February 9, 1994

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