The applicable standard of review is the same as that to be applied in the review of jury findings or a trial court s findings of fact. Where a reporter s record is filed, however, these implied findings are not conclusive, and an appellant may challenge them by raising both legal and factual sufficiency points. In a bench trial where no findings of fact or conclusions of law are filed, the judgment implies all findings of fact necessary to support it. However, an appellant may challenge the trial court s findings of fact for legal and factual sufficiency of the evidence. Most orders arising from a suit affecting the parent-child relationship will not be disturbed on appeal unless the complaining party can demonstrate a clear abuse of discretion. We reframe the issue for review as one challenging the sufficiency of the evidence to meet the statutory requirements for modification. As we will explain, the presumption does not apply in a modification proceeding. In his sole point of error on appeal, Sotelo challenges the sufficiency of the evidence to defeat the parental presumption. This appeal proceeds without benefit of findings of fact and conclusions of law. Rose was given the exclusive right to determine the primary residence of the child. Lorie was appointed as possessory conservator. The court then appointed Rose and Sotelo as joint managing conservators. The court found that appointment of a parent as sole managing conservator would not be in the best interests of the child because it would significantly impair Adam s physical health or emotional development. Consequently, she recommended that Sotelo be appointed managing conservator. Honaker recommended that Adam be cared for by one of his parents but by that time, Lorie was no longer in the picture. In April 2004, Peggy Honaker filed a home study with the court. In March, Rose filed a motion for enforcement, complaining that Sotelo and Lorie had failed to return Adam to her. Sotelo and Lorie were appointed temporary possessory conservators. Charles was non-suited and in February 2004, the trial court appointed Rose as the temporary sole managing conservator. The maternal grandparents, Rose and Charles Cartwright, intervened seeking managing conservatorship, possessory conservatorship, or reasonable access. The trial court issued a writ of possession, finding Lorie was entitled to possession of the child, and transferred the proceedings to the 143rd Judicial District Court of Ward County. Lorie filed a motion to transfer the cause to Ward County, a motion for writ of possession, a motion to modify the suit affecting the parent-child relationship, a motion for enforcement, and a motion for judgment on child support arrearages. He sought the exclusive right to determine Adam s primary residence or, in the alternative, that Adam s residence be restricted to Ector County and contiguous counties. In April 2003, Sotelo moved to modify the parent-child relationship. The court entered a standard possession order. Sotelo and Lorie were named joint managing conservators and Lorie was given the exclusive right to establish the primary residence of the child. In November 2001, Sotelo was adjudicated as Adam s father. Suit was filed in Ector County, Texas, where Sotelo continued to reside. ![]() In April 2001, Sotelo filed a voluntary statement of paternity and sought sole managing conservatorship of Adam. The family lived together in Odessa, Texas until Lorie and Adam moved to Monahans to live with her parents about a year after the child was born. Because the parental presumption is inapplicable in a modification proceeding, we affirm.Īdam Drake Sotelo (Adam) was born on Christmas Day in 1999 to Adam Rene Sotelo (Sotelo) and Lorie Eileen Gonzales (Lorie). At issue is the sufficiency of the evidence to rebut the parental presumption. LORIE EILEEN GONZALES, ) of Ward County, TexasĪdam Rene Sotelo (Sotelo) appeals from a modification order in a suit affecting the parent-child relationship in which the maternal grandmother was appointed a joint managing conservator with the exclusive right to determine the child s primary residence.
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