in the Interest of S.M.L., a Child ( 2009 )


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  •                                           NO. 07-09-0045-CV
    IN THE COURT OF APPEALS
    FOR THE SEVENTH DISTRICT OF TEXAS
    AT AMARILLO
    PANEL C
    OCTOBER 27, 2009
    ______________________________
    IN THE INTEREST OF S.M.L., A CHILD
    _________________________________
    FROM THE 110th DISTRICT COURT OF FLOYD COUNTY;
    NO. 9918; HONORABLE WILLIAM P. SMITH, JUDGE
    _______________________________
    Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.
    MEMORANDUM OPINION
    S.M.L., the child the subject of this suit, is a male child born December 14, 2006.
    Appellants, S.M.L.’s maternal grandparents, appeal an order issued by the Honorable
    William P. Smith of the 110th District Court, affirming an order issued by Associate Judge
    Phil Vanderpool1 terminating the parental rights of S.M.L.’s parents and appointing the
    Department of Family and Protective Services (hereinafter the “Department”) as S.M.L.’s
    1
    The role and power of an associate judge are ably described in the case of In the Interest of T.D.S.T.
    and C.T., No. 07-08-0399-CV, 2009 W L 1011110, at *3 (Tex.App.–Am arillo, April 15, 2009, no pet.).
    permanent sole managing conservator. In a single issue, Appellants assert the trial court
    erred by either failing to appoint them as S.M.L.’s conservators or by failing to grant them
    possession or access to S.M.L. We affirm.
    Background
    In March 2007, the Department placed S.M.L. in a foster home due to an abusive
    home environment and filed an original petition for conservatorship and termination of the
    parental rights of S.M.L.’s parents.2 Attached to the Department’s petition was an affidavit
    by a Department caseworker, who sought an earlier emergency hearing and protective
    order, describing extensive acts of domestic violence between family members resulting
    in injuries to S.M.L. Following an adversary hearing, the associate judge issued an order
    appointing the Department as S.M.L.’s temporary managing conservator.
    On January 10, 2008, the associate judge issued an order authorizing placement
    of S.M.L. with Appellants. The order further provided that the Department would continue
    serving as S.M.L.’s temporary sole managing conservator. The order also prohibited any
    access, communication, or contact between S.M.L. and his parents, except under the
    direct supervision and monitoring of the Department.
    2
    The petition for term ination was filed in cause num ber 9918, in the 110 th D istrict Court in and for
    Floyd County, Texas. The Departm ent and S.M.L.’s parents were the only parties to the suit.
    2
    On January 31, a final hearing was held on the Department’s petition. All parties,
    including an attorney and guardian ad litem for the child, appeared and announced ready.
    At that hearing, the Department presented irrevocable affidavits executed by S.M.L.’s
    parents voluntarily relinquishing their parental rights and consenting to the appointment of
    the Department as S.M.L.’s sole managing conservator. Jametra Hill, a Department
    caseworker, recommended the affidavits be accepted, the parental rights be terminated,
    and that S.M.L. remain placed with his maternal grandparents under the supervision of the
    Department.3 Hill also indicated the Department would oversee the adoption process
    applicable to Appellants. S.M.L.’s guardian ad litem agreed that the parental rights of
    S.M.L.’s parents should be terminated and, in the event S.M.L.’s maternal grandparents
    were not the ultimate adoptive parents, that S.M.L. be placed for adoption by a non-
    relative. The associate judge then found the evidence sufficient, terminated the parental
    rights of S.M.L.’s parents, and appointed the Department permanent sole managing
    conservator of S.M.L. An order reflecting the associate judge’s judgment was signed on
    March 5, 2008, and filed on March 10, 2008.4 Pursuant to that order, the Department
    continued S.M.L.’s placement with Appellants.
    Subsequent to the associate judge’s oral pronouncement of judgment, but prior to
    the entry of a written order, a Department employee observed Appellants permitting
    3
    An open adoption agreem ent entered into between S.M.L.’s parents and his m aternal grandm other
    which perm itted visitation between S.M.L. and his father was referenced at the hearing.
    4
    The referring court did not sign or affirm that order until January 5, 2009. See Tex. Fam . Code Ann.
    § 201.013(b) (Vernon 2008).
    3
    contact between S.M.L. and his parents in violation of the order of January 10.5
    Thereafter, at the discretion of the Department, S.M.L. was removed from Appellants’
    residence and, on February 25, he was placed in a second foster home studied and
    approved by the Department for adoption.
    Two days after entry of the associate judge’s written order of termination, on March
    7, 2008, Appellants filed a petition to intervene in the Department’s termination suit. The
    petition sought to have Appellants appointed as S.M.L.’s joint managing conservators, with
    the exclusive right to designate the primary residence of the child, in addition to an order
    granting Appellants possession of or access to the child.6
    On July 22, Appellants filed a first amended petition in intervention and, in addition
    to previous remedies, requested adoption. On August 6, 2008, the associate judge issued
    an order granting the Department’s motion to strike Appellants’ original petition in
    intervention filed March 7. Thereafter, Appellants sought a de novo hearing before the
    referring court.7
    5
    S.M.L.’s rem oval by the Departm ent in March 2007 was prom pted, in part, because Appellants
    violated an earlier safety plan requiring that neither parent be allowed to have any contact with S.M.L. unless
    supervised by the Departm ent. In that incident, Appellants had perm itted S.M.L.’s m other to take S.M.L. to
    Kansas.
    6
    Although the associate judge had already term inated the parental rights of S.M.L.’s parents on
    January 31, 2008, Appellants’ petition to intervene alleged that the parental rights had not been term inated.
    The petition did, however, acknowledge that both parents had previously executed either an affidavit of waiver
    of interest or an affidavit of relinquishm ent of parental rights.
    7
    Appellants’ request for a de novo hearing was deficient because the notice did not specify the ruling
    or issues for which the de novo hearing was sought. See Tex. Fam . Code Ann. § 201.015 (b) (Vernon 2008).
    Presum ably, the request, filed three days after the associate judge granted the Departm ent’s m otion to strike
    Appellants’ original petition in intervention, sought to challenge that order.
    4
    On August 29, 2008, S.M.L.’s new foster parents, with the Department’s consent,
    filed their original petition to adopt S.M.L. in the 237th District Court in Lubbock County.
    They also sought to intervene in the Department’s suit to terminate the parental rights of
    S.M.L.’s parents filed in Floyd County.
    In September, the associate judge reviewed and approved a placement report
    describing a permanency plan calling for S.M.L.’s adoption while continuing all previous
    orders without modification. On October 14, Appellants filed a second amended original
    petition in intervention in the Floyd County proceeding. On December 3, 2008, the trial
    court “reheard” the Department’s termination suit. With all parties present, the trial court
    implicitly overruled pending objections to jurisdiction and standing, and proceeded to hear
    the merits of the case. In an order issued January 5, 2009, the trial court affirmed the
    associate judge’s January 31, 2008 ruling. On January 26, 2009, Appellants filed their
    notice of appeal contesting that order.
    Standard of Review
    A trial court has broad discretion to determine issues related to conservatorship,
    visitation, and possession, see In re Doe 2, 
    19 S.W.3d 278
    , 281 (Tex. 2000); Gillespie v.
    Gillespie, 
    644 S.W.2d 449
    , 451 (Tex. 1982), and the decision of the court may be reversed
    only if it appears that the court abused its discretion in light of the record as a whole. 
    Id. A trial
    court abuses its discretion when it acts arbitrarily or unreasonably, without reference
    to any guiding rules or principles. Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990).
    5
    See In Interest of Doe, 
    917 S.W.2d 139
    , 141 (Tex.App.–Amarillo 1996, writ denied).
    Furthermore, we may not reverse the trial court’s judgment simply because we might
    disagree with the outcome. Rather, before a decision of the trial court may be reversed
    we must conclude that the decision lacked basis in fact or law or involved a misapplication
    of fact to law. In re C.R.T., 
    61 S.W.3d 62
    , 65 (Tex.App.–Amarillo 2001, pet. denied).
    When determining issues related to conservatorship or possession of and access
    to the child, the best interest of the child is the primary consideration. Tex. Fam. Code
    Ann. § 153.002 (Vernon 2008); See In re M.S., 
    115 S.W.3d 534
    , 547 (Tex. 2003). In
    determining the best interest of the child, the court may consider several non-exclusive
    factors: (1) the desires of the child; (2) the emotional and physical needs of the child now
    and in the future; (3) the emotional and physical danger to the child now and in the future;
    (4) the parenting abilities of the parties seeking conservatorship; (5) the programs available
    to assist those persons; (6) the plans for the child by the parties seeking conservatorship;
    and (7) the stability of the home or proposed placement. Holley v. Adams, 
    544 S.W.2d 367
    , 372 (1976).
    Analysis
    S.M.L. was originally removed from the custody of his parents in January 2007,
    because the Department had serious concerns about his safety and well-being while in
    their presence. At that time, the child was placed in the home of Appellants, subject to a
    written safety plan stating that Appellants would not allow the parents to have any contact
    6
    with the child unless supervised by the Department. In March 2007, Appellants allowed
    the parents to have unsupervised possession of the child.          During that period of
    unsupervised possession, the mother was arrested for domestic violence against the father
    and the child was once again removed by the Department.
    In September 2007, following the completion of a home study and anger
    management classes, the child was again placed in Appellants’ custody. Again, Appellants
    signed a safety plan agreeing to not allow the parents to have any contact with the child
    unless supervised by the Department. In January 2008, by order of the court, Appellants
    were specifically prohibited from allowing any “access, communication, or contact” between
    S.M.L. and his parents, except under the direct supervision and monitoring of the
    Department.
    After the parents stopped participating in services offered by the Department, the
    decision was made to seek termination of their parental rights. Following the execution of
    voluntary relinquishments of paternity, the associate judge terminated the parental rights
    of the mother and father and appointed the Department as the child’s sole managing
    conservator. At the time of that proceeding, the child was in Appellants’ custody and the
    Department’s plan was for them to adopt the child. A short time later, Appellants were
    observed allowing the parents unsupervised contact. This unauthorized contact prompted
    the Department to again remove the child from Appellants’ home and place him in new
    foster care.
    7
    In addition to hearing testimony concerning the child’s care and supervision while
    in the custody of Appellants, the trial court also heard testimony concerning the child’s new
    placement. A case worker testified that the child had bonded with the new placement
    parents, that their care and supervision was appropriate, that the child referred to them as
    “Momma” and “Daddy,” that they had initiated adoption proceedings, and that it was in the
    child’s best interest that he remain in the new placement.
    Given the instances of Appellants’ failure to follow the safety plans adopted for the
    child, their inability to recognize the danger presented to the child by parental contact, as
    well as the prospective plans for the child, we cannot say that the trial court’s decision to
    not appoint Appellants as managing conservators or to order possession or access was
    arbitrary, unreasonable, or without reference to any guiding rules or principles.
    Accordingly, Appellants’ sole issue is overruled.
    CONCLUSION
    The trial court’s judgment is affirmed.
    Patrick A. Pirtle
    Justice
    8