in the Interest of D.M., M.M., and M.M., Children ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00473-CV
IN THE INTEREST OF D.M., M.M.,
AND M.M., CHILDREN
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-101474-15
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MEMORANDUM OPINION1
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In this accelerated appeal, Appellants primarily argue that the evidence
was insufficient to support the trial court’s order naming the Texas Department of
Family and Protective Services (DFPS) as their three children’s sole managing
conservator and denying Appellants their request to be named managing
conservators. The family code requires a trial court to consider a history of family
1
See Tex. R. App. P. 47.4.
violence in making a managing-conservator decision. Because the trial court
heard a preponderance of credible evidence that Appellants had a past history of
family violence, the trial court did not abuse its discretion by appointing DFPS the
children’s sole managing conservator. Therefore, we affirm the trial court’s final
order. See Tex. R. App. P. 43.2(a).
I. MANAGING CONSERVATORSHIP
Appellants A.M. (Father) and K.M. (Mother) appeal from the trial court’s
final order in a suit affecting their parent-child relationship (SAPCR) to three of
their four children, D.M. (David), Ma. M. (Mandy), and Me. M. (Michelle)
(collectively, the children). Father and Mother argue that the evidence was
legally and factually insufficient to support the trial court’s finding that their joint
managing conservatorship or a monitored return would significantly impair the
children’s physical health or emotional development and, thus, would not be in
the children’s best interest. We review this determination for an abuse of
discretion. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re T.D.C., 91 S.W.3d 865, 872
(Tex. App.—Fort Worth 2002, pet. denied) (op. on reh’g). Our review of the trial
court’s discretion includes a parsing of the sufficiency of the evidence to support
the conservatorship, possession, and access determinations. See In re M.A.M.,
346 S.W.3d 10, 13–14 (Tex. App.—Dallas 2011, pet. denied).
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A. FACTORS TO BE CONSIDERED
A child’s best interest is a trial court’s primary concern in determining
conservatorship, possession, and access. See Tex. Fam. Code Ann. § 153.002
(West 2014). In making this best-interest determination, the trial court is guided
by several nonexclusive factors, some of which are whether the parents are
willing and able to provide the children with a safe environment, the present and
future needs of the children, the present and future danger to the children’s
emotional or physical needs, the children’s stability, and the need to prevent
constant litigation in child-custody cases. See id. § 263.307 (West Supp. 2016);
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re Marriage of
Bertram, 981 S.W.2d 820, 822–23 (Tex. App.—Texarkana 1998, no pet.).
A trial court presumes that it is in a child’s best interest for a parent to be
appointed sole managing conservator or for both parents to be appointed joint
managing conservators. See Tex. Fam. Code Ann. § 153.131 (West 2014). But
this best-interest presumption is rebutted by evidence that such appointment
would cause a significant impairment of the children’s physical health or
emotional development. See id. § 153.131(a). And the presumption is
completely “remove[d]” if the trial court finds credible evidence of “a history of
family violence involving the parents of a child.” Id. § 153.131(b); see id.
§ 153.004(a)–(b) (West 2014). Credible evidence of such a history absolutely
prohibits the appointment of the parents as joint managing conservators. See id.
§ 153.004(b). Similarly, a trial court must deny a parent access to a child if a
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preponderance of the evidence reveals a history or pattern of family violence
during the two years before the SAPCR was filed. See id. § 153.004(d).
B. EVIDENCE REGARDING CONSERVATORSHIP FACTORS
Mother and Father married on June 18, 1998. On July 6, 1998, their first
child K.M. (Kayla) was born, and David soon followed on June 15, 2000. In
2007, when Kayla and David were eight and six, Mother and Father began using
methamphetamine, sometimes daily and while the children were in the house.
That same year, Mother was diagnosed with bipolar disorder and attempted
suicide six times, in one instance telling Father that she wanted “the children to
know that [Father was] at fault” for her suicide. Because Father was concerned
Mother would harm the children, he got a protective order against her that
prevented her from having unsupervised contact with the children. Mother
violated the order and was arrested and eventually placed on deferred
adjudication community supervision, which she successfully served.
While Father had custody of the children after the protective order, DFPS
received a report of neglectful supervision of Kayla and David, which alleged that
Father was using methamphetamine, was “agitated and volatile,” and wanted to
“get rid” of people who were “after him.” DFPS could not determine if there was
reason to believe the report because Father refused to complete a drug test and
the investigator could not get in contact with him. Father kept the children for
approximately one year before reuniting with Mother.
4
Mandy was born on December 16, 2010. Mother and Father continued to
use methamphetamine daily with brief periods of sobriety. In December 2013,
Father pushed Mother, who was pregnant, during an argument and put her in a
choke hold. Mother freed herself by biting him. Mother was arrested and placed
on deferred adjudication community supervision for assault, which she
successfully served. Michelle was born January 14, 2014. In September 2014,
Father was arrested after he hit Mother in the face, pulled her hair, and pushed
David after David stepped between them. Father was convicted of assault
causing bodily injury to a family member.
By this point, Mother and Father still were using methamphetamine daily
while the children were in the home. Father, a paranoid schizophrenic, began to
believe the police were listening to him through the electronics in his home,
thought the police were drugging him, and had auditory hallucinations. Mother
had stopped taking her medication for her bipolar disorder. On February 27,
2015, Father and Mother voluntarily went to DFPS to get help for their drug
addiction and mental-health issues. On March 5, 2015, DFPS filed a SAPCR
and sought the emergency removal of the children after Mother and Father
tested positive for methamphetamine and amphetamine and failed to appear for
a scheduled meeting with DFPS.2 On March 13, 2015, the trial court ordered the
2
Although Kayla originally was included in the SAPCR, she had reached
the age of eighteen at the time of the trial court’s final hearing. See Tex. Fam.
Code Ann. § 101.003 (West 2014).
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children’s removal, appointed DFPS temporary managing conservator of the
children, and granted Father and Mother limited access to the children. When
Mandy and Michelle were removed, they tested positive for methamphetamine.3
After the children were removed, Father hit Mother and tried to choke her
in March 2015, leading to his second conviction for assault causing bodily injury
to a family member. Mother entered an in-patient rehabilitation facility in March
2015 and stayed for twenty-eight days with four months of out-patient treatment,
including Narcotics Anonymous meetings. This treatment ended in August 2015.
During Mother’s out-patient treatment in July 2015, Father and Mother got in a
verbal argument and separated. The fight arose because Mother continued to
use drugs and Father realized that her drug dealer still regularly contacted her.
After DFPS moved to modify possessory conservatorship, the trial court
entered a temporary order that continued DFPS’s temporary managing
conservatorship but appointed Mother’s sister K.K. (Aunt) and Aunt’s husband
J.K. (Uncle) to be Kayla, Mandy, and Michelle’s temporary possessory
conservators. At the time of the hearing, Father believed the children should be
with family in California, where Aunt and Uncle lived. David had testified at the
hearing that he wanted to stay in foster care near his school; therefore, he
remained in foster care and did not move to California with Kayla, Mandy, and
Michelle. Two months later in February 2016, Father and Mother moved to a
3
Mother stated she did not know how they could have gotten
methamphetamine in their systems.
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halfway house in Abilene after Mother had again deteriorated to daily
methamphetamine use. Father and Mother made progress at the halfway house
and stopped taking methamphetamine in that controlled environment. On
July 13, 2016, while Father and Mother were still at the halfway house, they filed
a joint motion for the monitored return of the children, requested temporary
possessory conservatorship of the children, and requested an extension of the
dismissal date. See Tex. Fam. Code Ann. § 263.403 (West 2014).
The trial court held a hearing on DFPS’s motion to modify and Father and
Mother’s motion for monitored return on July 18, 2016. Father and Mother
intended to find an apartment in Waxahachie suitable for their children as soon
as they were released from the halfway house, which would occur in August
2016. A DFPS conservatorship supervisor, Tyra Sasita, testified that since
March 2015, Father and Mother had not shown that they could provide stability
for the children. She further stated that a monitored returned would not be
appropriate until after Father and Mother could make such a showing, which was
not possible at the halfway house because it was a highly controlled
environment. Staci Willingham, Father and Mother’s DFPS caseworker after
they moved to Abilene, stated that they appeared to be ready to get the children
back after they secured appropriate housing; however, Sasita pointed out that
Willingham had seen Father and Mother only at their best in a controlled
environment. Sasita testified that DFPS requested that it be named managing
conservator of the children and that Aunt and Uncle be given possessory
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conservatorship of Mandy and Michelle.4 Aunt testified that on July 11, 2016,
seven days before the trial court’s scheduled hearing, Mother called Aunt and
was very angry because Aunt had not toilet trained Michelle and because Aunt
would not tell Mother exactly how she planned to testify at the hearing. Mother’s
anger toward Aunt was commonplace, and she regularly directed this anger at
Kayla during their phone conversations. Aunt testified to the improvements
shown by Mandy and Michelle in the seven months they had lived with her and to
her specific plans for all of the children, including Kayla. 5 David stated in a letter
that his first choice would be to “go home to my parents” because he believed
they “have changed and will never go back to their addiction.” His second choice
was to be with Aunt, and his final choice was to stay in foster care because “if all
else fails I have them.” At the end of the hearing, the trial court deferred its ruling
until the required notification to the American Indian tribes was completed.6
See 25 U.S.C.A. §§ 1911–12 (West 2013).
4
Sasita explained that Aunt and Uncle could not be given possessory rights
to David because he had not been living with them before the hearing.
5
At the time of the hearing, Kayla was eighteen and planned to attend
Arizona State University where Aunt’s son—Kayla’s cousin—also attended and
where Kayla had many relatives in the area. Before the removal, Kayla had not
considered attending a four-year university.
6
Mother had indicated to a DFPS investigator that Father was of American
Indian descent, but DFPS had not heard from all tribes about their intent to
intervene. After no tribe intervened, the trial court made its findings based on the
evidence adduced at the July 2016 hearing.
8
On August 15, 2016, Mother filed a motion to reopen the evidence
because she and Father had rented a house in Abilene, which was sufficient to
provide appropriate housing for the children. She further requested that the
September 3, 2016 dismissal date, which was an extension from the original
dismissal date, be further extended for “not longer than 180 days.” See Tex.
Fam. Code Ann. § 263.401 (West Supp. 2016). On September 13, 2016, the trial
court held a hearing on this motion, and Mother testified that she and Father had
rented a two-bedroom home in Abilene. The trial court stated that it would “take
that evidence into consideration,” implicitly granting the motion to reopen.
On December 20, 2016, the trial court entered its final order appointing
DFPS managing conservator of the children, specifically finding that appointment
of Father or Mother as managing conservator of the children would significantly
impair their physical health or emotional development and that it would not be in
their best interest to appoint a relative managing conservator.7 See id.
§ 263.404(a) (West Supp. 2016). The trial court appointed Father and Mother
possessory conservators of the children but without the right to physical
possession of the children and with only supervised visitation. Aunt and Uncle
were appointed possessory conservators of Mandy and Michelle with the right to
physical possession. In its final order, the trial court dismissed DFPS’s SAPCR
without prejudice.
These determinations operated to implicitly deny Father and Mother’s joint
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motion for a monitored return filed before the July 2016 hearing.
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C. NO ABUSE OF DISCRETION
Father and Mother assert that the evidence was insufficient to support the
trial court’s conservatorship determinations. Mother specifically argues that the
evidence did not support the best-interest finding based on significant impairment
and that the evidence showed that she and Father were able to provide the
children with a safe environment.8 See id. §§ 153.131(a), 263.307(b)(12)(D),
263.403(a)(1). Father similarly argues that the trial court’s conservatorship
determinations were an abuse of discretion because the evidence failed to
sufficiently show significant impairment and, thus, to show that the trial court
acted in the children’s best interest. See id. § 153.131(a).
But what Father and Mother wholly fail to address is the effect of their
undisputed history of family violence, occurring within two years of DFPS’s
SAPCR, on their conservatorship, possession, and access requests. Father and
Mother’s history of family violence alone justified the trial court’s determination.
See id. § 153.004(b). Further, they focus on only two of the nonexclusive factors
in urging the trial court abused its discretion: their willingness and ability to
8
Mother also seems to argue that the trial court erred by denying her
request for an extension of the dismissal date, which was included in her and
Father’s motion for a monitored return. But Mother’s arguments are directed
solely to the trial court’s action in determining conservatorship and she has not
included any argument or citation to authority specifically directed to the
continuance ruling, thereby waiving this complaint. See In re T.T.F., 331 S.W.3d
461, 477–78 (Tex. App.—Fort Worth 2010, no pet.). Even so and as DFPS
points out, the trial court was prohibited from further extending the dismissal date
because a prior 180-day extension had been granted. See Tex. Fam. Code Ann.
§ 263.401(b).
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provide stable housing and the lack of evidence that their conservatorship would
cause the children significant impairment. This analysis improperly ignores the
other statutory and common-law factors that could have been considered by the
trial court in determining the children’s best interest. See In re D.M., 58 S.W.3d
801, 814 (Tex. App.—Fort Worth 2001, no pet.). Father’s and Mother’s chronic
history of substance abuse, some of which occurred in front of the children and
resulted in Mandy and Michelle testing positive for methamphetamine at removal;
Father’s and Mother’s frequent relapses over an eight-year period; their inability
to protect the children from repeated exposure to family violence; and the
children’s stability since removal all support the trial court’s final order. See Tex.
Fam. Code Ann. § 263.307(a), (b)(7)–(8), (b)(12)(E); see, e.g., In re K.S.,
492 S.W.3d 419, 427–28 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
See generally Gillespie, 644 S.W.2d at 451 (stating trial court possesses wide
latitude in determining best interest).
II. CONCLUSION
Under these facts, we cannot conclude that the trial court abused its
discretion in making its conservatorship, possession, and access determinations.
Evidence regarding several of the nonexclusive factors relevant to a best-interest
finding supported the trial court’s determination that the appointment of Father
and Mother as managing conservators or a monitored return would not be in the
children’s best interest. As such, the trial court did not abuse its discretion. We
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overrule Father’s and Mother’s issues and affirm the trial court’s final order. See
Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: March 30, 2017
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