in the Interest of B.C., a Child ( 2017 )


Menu:
  •                        COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 02-16-00431-CV
    IN THE INTEREST OF B.C., A
    CHILD
    ----------
    FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
    TRIAL COURT NO. 16-05188-362
    ----------
    MEMORANDUM OPINION1
    ----------
    In this restricted appeal, Appellant M.M. (Mother) challenges the trial
    court’s default judgment in the underlying suit affecting the parent-child
    1
    See Tex. R. App. P. 47.4.
    relationship (SAPCR). Because Mother has failed to present an error that is
    apparent from the face of the record, we affirm.
    I. BACKGROUND
    On June 30, 2016, P.T. (Grandmother) filed an original SAPCR seeking to
    be appointed as the sole managing conservator of B.C., who, according to the
    petition, was eighteen months old. The petition alleged that B.C. was the child of
    H.C. (Father) and Mother. The petition further alleged that Grandmother had
    standing to file the SAPCR because she had had care, custody, and control over
    B.C. for the requisite period required by the family code. See Tex. Fam. Code
    Ann. § 102.003(9) (West Supp. 2016) (conferring standing to file an original
    SAPCR upon “a person, other than a foster parent, who has had actual care,
    control, and possession of the child for at least six months ending not more than
    90 days preceding the date of the filing of the petition”). With regard to the issue
    of conservatorship over B.C., Grandmother’s petition alleged as follows:
    The appointment of the parents as joint managing conservators
    would not be in the best interest of [B.C.]. The appointment of the
    parents as joint managing conservators will impair the emotional
    welfare and physical well-being of [B.C.]. It is in the best interest of
    [B.C.] that [Grandmother] be appointed sole managing conservator
    of [B.C.].
    [Father and Mother] have a history or pattern of child neglect
    directed against [B.C.]. [Grandmother] requests that the Court
    render a possession order that provides that [Father and Mother’s]
    periods of visitation be continuously supervised by an entity or
    person chosen by the Court.
    2
    Mother was served with the suit on July 11, 2016, and Father filed a waiver
    of service on July 29, 2016. Neither Father nor Mother filed an answer. The trial
    court called the case on August 8, 2016, and it entered its final order the same
    day. The order reflects that Mother, “although duly and properly notified, did not
    appear and wholly made default.” The order also reflects that Father had waived
    issuance and service of citation and that he agreed to the terms of the final order,
    as evidenced by his signature indicating that he approved the order “as to form
    and content.”   The order states that a record of the testimony was waived.
    Finding that it was in B.C.’s best interest, the trial court appointed Grandmother
    as B.C.’s sole managing conservator and appointed Father and Mother as parent
    possessory conservators.
    With respect to Mother’s possession of and access to B.C., the trial court’s
    order provides as follows:
    Considering [B.C.’s] age, developmental status, circumstances,
    needs and the best interest of [B.C.] along with the circumstances of
    [Mother and Father], the Court finds that that the limited possession
    and access provided by this order does not exceed the restrictions
    needed to protect the best interest of the child.
    IT IS ORDERED that the primary residence of the child, [B.C.],
    shall be the residence of [Grandmother]. [Grandmother] shall have
    the superior rights of possession of [B.C.] at all times.
    IT IS ORDERED that [Mother] shall have possession of and
    access to [B.C.] at all times mutually agreed upon in advance by
    [Mother] and [Grandmother].
    ....
    3
    IT IS ORDERED that if at any time [Grandmother] determines
    that supervised access between [B.C.] and either [Father or Mother]
    is in the child’s best interest, then [Grandmother] may designate an
    appropriate adult to supervise the possession or access to [B.C.] at
    such time as the parties may mutually agree.
    II. RESTRICTED APPEAL
    Mother attempts a restricted appeal from the trial court’s final order. See
    Tex. R. App. P. 30. To prevail in her restricted appeal, Mother must show that
    (1) she filed a notice of appeal within six months of the date the complained-of
    judgment was signed; (2) she was a party to the suit but did not participate in the
    hearing that resulted in the judgment; (3) she did not timely file a postjudgment
    motion, request findings of fact and conclusions of law, or file a notice of appeal
    within the time permitted under rule of appellate procedure 26.1(a); and (4) the
    complained-of error is apparent from the face of the appellate record. See Tex.
    R. App. P. 26.1(c), 30; Watson v. Watson, 
    286 S.W.3d 519
    , 522 (Tex. App.—Fort
    Worth 2009, no pet.); see also Etheredge v. Hidden Valley Airpark Ass’n, Inc.,
    
    169 S.W.3d 378
    , 381 (Tex. App.—Fort Worth 2005, pet. denied) (op. on reh’g)
    (stating restricted appeal requirements should be “liberally construed”). The only
    element at issue in this appeal is whether error is apparent on the face of the
    record.
    In what we construe as a single issue, Mother contends that the face of the
    record demonstrates the trial court erred by ordering that she “shall have
    possession of and access to [B.C.] at all times mutually agreed upon in advance
    by [her] and [Grandmother].” Mother argues that order is an abuse of discretion
    4
    because it gives Grandmother complete discretion over Mother’s visitation rights.
    A trial court’s possession and visitation determinations are reviewed for an abuse
    of discretion. Halleman v. Halleman, 
    379 S.W.3d 443
    , 447 (Tex. App.—Fort
    Worth 2012, no pet.). Under that standard, an appellate court will not disturb the
    trial court’s possession or visitation decisions unless the trial court acted without
    reference to any guiding rules or principles in making them—unless, in other
    words, those determinations were arbitrary or unreasonable. See 
    id. Mother bases
    her argument that the trial court’s possession order was an
    abuse of discretion entirely upon a portion of our decision in Conn v. Rhodes,
    No. 02-08-00420-CV, 
    2009 WL 2579577
    , at *4 (Tex. App.—Fort Worth Aug. 20,
    2009, no pet.) (mem. op.). In Conn, the trial court had entered a possession
    order that “the conservators shall have possession of the child at times mutually
    agreed to in advance by the parties.” Conn, 
    2009 WL 2579577
    , at *3 (emphasis
    in original). Like Mother here, the appellant in Conn argued the trial court erred
    by entering that possession order because it gave the child’s managing
    conservator complete discretion over the appellant’s visitation rights. 
    Id. Mother quotes
    the following portion of our Conn opinion:
    A trial court may not give one parent the unbridled discretion,
    unenforceable by contempt, to decide whether the other parent may
    have access to, or possession of, their children. Thus, when a court
    places restrictions or conditions on a conservator’s possession
    rights, the court must specifically define those terms in its decree.
    The judgment must state, in clear and unambiguous language, what
    is required for the conservator to comply, and the terms must be
    specific enough to permit the conservator to enforce the judgment by
    contempt.
    5
    
    Id. at *4
    (citations omitted).   Mother argues this portion of our Conn opinion
    supports her contention that the trial court’s possession order gives Grandmother
    the unrestrained discretion to completely deny her possession of B.C.
    But in Conn itself, we concluded the opposite. We concluded the trial
    court’s possession order providing that “the conservators shall have possession
    of the child at times mutually agreed to in advance by the parties” did not
    subject [the appellant’s] visitation to [the managing conservator’s]
    complete discretion, nor [did] it deprive [the appellant] of possession
    altogether. If [the managing conservator] obstructs possession or is
    unreasonable with respect to arranging times for [the appellant’s]
    visitation with the child, [the appellant] can appear before the trial
    court to request specific, workable terms for visitation.
    
    Id. And we
    ultimately held that possession order was not an abuse of discretion.
    
    Id. (holding “the
    trial court did not abuse its discretion by making [appellant’s]
    visitation schedule subject to the parties’ mutual agreement”).        Mother has
    presented no argument why a different result should obtain with respect to the
    nearly identical possession order here. We conclude, therefore, that Mother has
    failed to show the trial court abused its discretion by making her visitation
    schedule subject to the parties’ mutual agreement. See 
    id. Accordingly, Mother
    has failed to present error that is apparent from the face of the record. See
    
    Watson, 286 S.W.3d at 522
    . We overrule Mother’s sole issue.
    III. CONCLUSION
    Having overruled Mother’s sole issue, we affirm the trial court’s judgment.
    See Tex. R. App. P. 43.2(a).
    6
    /s/ Lee Gabriel
    LEE GABRIEL
    JUSTICE
    PANEL: WALKER, MEIER, and GABRIEL, JJ.
    DELIVERED: October 26, 2017
    7
    

Document Info

Docket Number: 02-16-00431-CV

Filed Date: 10/26/2017

Precedential Status: Precedential

Modified Date: 10/31/2017