in the Interest of A.C.-D.R., a Child ( 2013 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-13-00150-CV
IN THE INTEREST OF A.C.-D.R., A
CHILD
----------
FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
----------
MEMORANDUM OPINION 1
----------
After a bench trial, the trial court denied the petition of the Texas
Department of Family and Protective Services (TDFPS) to terminate the parental
relationship between Ann 2 and her parents, A.B. (Mother) and A.R. (Father), but
named TDFPS as the child’s permanent managing conservator (PMC) and
Father’s brother J.R. (Uncle) as a possessory conservator. In five issues, Mother
1
See Tex. R. App. P. 47.4.
2
To protect A.C.-D.R.’s anonymity, we will adopt the parties’ use of Ann as
her alias. See Tex. R. App. P. 9.8(b)(2); Tex. Fam. Code Ann. § 109.002(d)
(West Supp. 2012).
challenges the trial court’s order naming TDFPS as Ann’s PMC. Because we
hold that the trial court did not abuse its discretion by naming TDFPS as Ann’s
PMC, we affirm the trial court’s judgment.
I. Statement of Facts
TDFPS called two witnesses, Father and the CPS worker, and offered no
evidentiary exhibits.
Ann was born in mid-July 2011 and was eighteen months old at trial.
According to Father, Mother had a drug problem in the year before Ann’s birth.
Mother’s drug of choice was mainly marijuana, and she used marijuana during
her pregnancy.
Mother had a long-term seizure disorder, but according to Father, she
never took any medication for it during their relationship. Mother had at least one
seizure during her relationship with Father. Father testified that he had urged
Mother to take medication for her seizure disorder after Ann’s birth but that
Mother had resisted, telling him that Ann was her child and that she could do with
Ann whatever she wanted.
When Ann was about three and one-half months old, Mother had a seizure
and dropped the baby carrier with Ann in it. The baby carrier hit the ground, and
Ann fell out, hitting her face on the curb and suffering injuries. Father testified
that he rode with Ann to the hospital, but Mother did not go to the hospital until
two days later. TDFPS removed Ann two days after Mother dropped her.
2
Mother admitted to the CPS worker that she was not on medication when
she had a seizure and dropped Ann. Mother had still not filled her prescription
for medication for her seizures when the CPS worker last spoke to her three
weeks before trial.
Father reported that in November 2012, about a year after Ann’s removal,
Mother and her brother interrupted a family gathering at Father’s home. Mother
yelled at Father. Her brother, who appeared to be “on something,” was violent
and exhibited threatening behavior to Ann’s grandfather and cousin. Eventually,
the police were called. When Mother visited Father the next day to apologize, he
looked her in the eyes and sa[id], [“]Do we really need any more
violence in our life than we already have? We lost our daughter over
it.[”] And [Mother] kind of looked at [Father] and walked off at that
point, and she realized that she was wrong for what happened [the
previous day].
In addition to failing to take prescribed medicine for her seizures, Mother
failed to complete many of the tasks on her service plan. She did not complete a
psychological evaluation, parenting classes, a batterer’s intervention program, or
substance abuse counseling, which included anger management therapy,
inpatient and outpatient treatment, and NA and AA classes. She also did not
demonstrate an ability to maintain income or employment or provide any proof of
income. Although Mother told the CPS worker that she could not work because
of her seizure disorder, she was not receiving any SSI benefits.
The CPS worker also testified that Mother had not obtained and
maintained safe and stable housing. For about two and one-half months before
3
trial, Mother had been living in an apartment with her boyfriend and his mother in
Mesquite; CPS had not visited the apartment. Mother had not indicated to the
CPS worker that the home would be an appropriate place for Ann to live; Mother
had instead indicated that she was going to be moving from that apartment.
Mother did regularly attend visits with Ann except for a two-month period
after moving to Mesquite, and she told CPS that she lacked transportation and
money to visit from her new home during that period. CPS then scheduled
longer visits for every other week at a McDonald’s in Mesquite, and Mother
attended them.
Mother had also tested negative on her most recent random drug test, and
the CPS worker believed that Mother was drug-free.
Though aware of the hearing, Mother did not attend trial. She told her
attorney that it was because she could not afford to buy gas to drive from
Mesquite to Fort Worth. The trial court noted that the date and time of trial,
January 15, 2013 at 9:30 a.m., had been set on September 27, 2012 and that the
trial court had delayed the hearing about forty-five minutes for bad weather.
Mother’s attorney conceded at trial that “[t]here’s best interest all over the
place to terminate [her] parent/child relationship.”
When Ann was discharged from the hospital, she went to foster care. In
July 2012, she was placed locally with Uncle and his wife (Aunt). Like Mother,
Uncle did not attend trial.
4
Father testified that he and Uncle were very close and that Uncle had
always been his protector. Father also testified that he talked to Uncle almost
every week. But despite the fact that Ann had lived with Uncle and Aunt for more
than six months by the time of trial, Father testified that he had never seen Uncle
or Aunt with Ann.
Father understood that if the trial court terminated his rights, he would
have “nothing whatsoever to do with [Ann] anymore.” Father clarified that “it
would be up to [Uncle and Aunt] if they want[ed Mother or him] to see [Ann] at
all.” But if the trial court did not terminate the parental rights but granted only
PMC of Ann, Father understood that he would still have some input into “what
goes on with her.” Father testified that he did “[not] want to fail [his] daughter
anymore” or “to see more harm come to her.”
Father testified that he did not sign his voluntary affidavit of relinquishment
to avoid paying child support and that child support did not factor into his
decision. The CPS worker confirmed that neither parent had paid any child
support despite the trial court’s child support order. Father also testified that he
did not relinquish his rights because of any promise or guarantee that Uncle and
Aunt would be able to adopt Ann.
The CPS worker last discussed TDFPS’s plan of termination with Mother
less than three weeks before trial. Mother “understood the plan[,] and she said
she was just wanting to make sure that her son would get his last visit.” Her son,
who was eight years old at the time of trial and lived locally with his maternal
5
grandmother, had “come to a few” of the visits between Mother and Ann. The
caseworker admitted that the boy and Ann know each other and that they are
siblings. When asked about TDFPS’s position on separating siblings, the case
worker testified,
A. Normally, I would see that they’d want them together, but in
this case [Ann] was very young in age, so, I mean, he does
have, you know, visitations—you know, growing up with her.
And, hopefully, you know, they’ll still be able to see each other
growing up.
Q. And would you agree that termination of the parent/child
relationship will make this eight-year-old no longer [Ann’s]
sibling?
A. I understand that, yes.
Q. And has CPS ever been involved with [Mother] prior to [Ann’s]
birth?
A. No.
Q. Does CPS have any concerns about [Mother] parenting this
eight-year-old child?
A. Yes.
Q. Have any referrals been made to the 1-800 line or
investigations regarding [Mother] and this eight-year-old?
A. She’s not caring for the eight-year-old. Her mother is taking
care of the eight-year-old.
Q. And do you know what city her mother lives in?
A. I believe it’s Keller/Fort Worth area.
Q. But you would agree that no referrals have been made
regarding this eight-year-old?
A. Not that I’m aware of.
6
....
Q. Okay. And the maternal grandmother that has [Ann’s] older
brother living with her, has she contacted the Department
regarding placement of [Ann] in her home?
A. No.
Q. And how many times has [Mother] asked you to conduct a
home study on her mother for possible placement?
A. She hasn’t.
The CPS worker also testified about the disadvantages of permanent
managing conservatorship rather than termination:
Q. And do you also understand that if permanent managing
conservatorship rather than termination is granted, that either
parent could file a motion to modify the order down the road?
A. Yes.
Q. And do you believe that that would be in the best interest of
[Ann]?
A. No.
Q. Do you believe that that situation would cause a lot of litigation
in the future for this family?
A. Yes.
After TDFPS rested its case, Ann’s attorney ad litem called Aunt as a
witness. Aunt testified that Ann had been living with Aunt and Uncle for about six
months and had made substantial progress and that “[e]very part of [Aunt and
Uncle’s] family loves [Ann].” Aunt testified that she and her husband planned to
adopt Ann and raise her as their own child in the event of termination. Aunt also
testified that she and her husband were able to meet Ann’s present and future
7
needs. Aunt additionally testified that Ann was in no current danger and that she
and Uncle would protect Ann from any future danger “[j]ust like [they] would with
[their] own children.”
Aunt testified that in addition to Ann, the couple’s seventeen-year-old
nephew and three-year-old daughter lived in the home, Uncle’s eight-year-old
son came every other weekend, and Aunt was seven months’ pregnant. All the
other children in the home have bonded with Ann.
Aunt testified that she believed that adoption would provide “a more
permanent placement and future for [Ann] than . . . a permanent managing
conservator title for [Aunt and Uncle would].” On cross-examination by Mother’s
counsel, the following dialogue occurred,
Q. Why is it that you are wanting to adopt [Ann] as opposed to
have permanent legal custody of her?
A. Well, because we want [Ann] to feel as if she is a part of a
family and not an adopted child that may or may not see her
mother or father again.
So far this whole case has been a very big roller coaster
and I would never want [Ann] to feel displaced. She deserves
the world and she deserves a family that is going to be there
for her no matter what and, you know, that her family’s going
to be there for her Christmas, birthdays, Valentine’s Day, the
simple small things. [Ann] deserves that.
TDFPS’s trial counsel followed up,
Q. What does [Ann] call you?
A. Currently, right now, we have not had her call us anything
besides—we do say uncle, but she doesn’t call us anything.
She does walk around the house saying mommy and daddy,
8
but we haven’t pushed the issue because we did not know
what was going on until today.
And being her aunt and uncle, really, we did not want
her—if she did go back to Mommy and Daddy, we did not
want her to be confused.
Aunt acknowledged that if she and Uncle adopted Ann, she would receive no
State benefits. She testified those benefits would not be a factor should they
adopt Ann: “We haven’t had any of that besides Medicaid so far, so I think we’re
pretty financially set since we’re still living in the same place and still got jobs.”
In its “Petition for Protection of a Child, for Conservatorship, and for
Termination in Suit Affecting the Parent-Child Relationship,” TDFPS alleged the
following,
14. Permanent Conservatorship and Support of the Child
14.1. Conservatorship
14.1.1. Pursuant to §§ 153.005 and 263.404,
Texas Family Code, if the child cannot
safely be reunified with either parent, but
may be permanently placed with a relative
or other suitable person, the Department
requests that the Court appoint the person
as permanent sole managing conservator
of the child; if the child cannot safely be
reunified with either parent or permanently
placed with a relative or other suitable
person, the Department requests that the
Court appoint the Department as
permanent sole managing conservator of
the child.
The trial court explicitly found in the termination decree that “the
appointment of either parent as Managing Conservator would not be in the best
9
interest of the child because the appointment would significantly impair the child’s
physical health or emotional development,” appointed TDFPS as Ann’s PMC,
and found that appointment to be in her best interest. The trial court also ordered
that Uncle would remain the child’s possessory conservator and found that
appointment to be in her best interest.
II. Challenges to Appointment of TDFPS as PMC
A. Procedural Challenges
In part of her first issue, Mother contends that the trial court’s appointment
of TDFPS as PMC is not supported by section 263.404 of the family code, by
TDFPS’s pleadings, or by the necessary findings in the judgment. To the extent
that Mother contends that TDFPS’s petition is deficient, she failed to timely file a
special exception and has therefore failed to preserve that subissue. 3
To the extent that Mother contends that TDFPS’s pleadings do not allow
the appointment of TDFPS as PMC because TDFPS put on evidence that Uncle
and his wife were a viable placement for the child, she cites no authority that
stands for that proposition, and we therefore reject it as inadequately briefed. 4
3
See Roark v. Allen, 633 S.W.2d 804, 810 (Tex. 1982); In re K.B., No. 02-
09-00441-CV, 2010 WL 4028107, at *15 (Tex. App.—Fort Worth Oct. 14, 2010,
no pet.) (mem. op.).
4
See Hall v. Stephenson, 919 S.W.2d 454, 467 (Tex. App.—Fort Worth
1996, writ denied); Tello v. Bank One, N.A., 218 S.W.3d 109, 116 (Tex. App.—
Houston [14th Dist.] 2007, no pet.); see also Fredonia State Bank v. Gen. Am.
Life Ins. Co., 881 S.W.2d 279, 284–85 (Tex. 1994).
10
Further, we note that TDFPS expressly sought the appointment of PMC in its
petition independently of termination by pleading for permanent managing
conservatorship under section 263.404 of the family code, which Mother
concedes governs the appointment of TDFPS as PMC in cases in which
termination does not occur. 5 Section 263.404 requires that the trial court find two
elements before naming TDFPS as a child’s PMC without terminating the
parents’ rights:
(a) The court may render a final order appointing the department as
managing conservator of the child without terminating the rights of
the parent of the child if the court finds that:
(1) appointment of a parent as managing conservator would
not be in the best interest of the child because the
appointment would significantly impair the child’s physical
health or emotional development; and
(2) it would not be in the best interest of the child to appoint a
relative of the child or another person as managing
conservator. 6
The trial court explicitly found in the decree that “the appointment of either
parent as Managing Conservator would not be in the best interest of the child
because the appointment would significantly impair the child’s physical health or
emotional development.” 7 Mother raises no challenge to that finding.
5
See Tex. Fam. Code Ann. § 263.404 (West 2008).
6
Id. § 263.404(a).
7
See id. § 263.404(a)(1).
11
It is true that the decree contains no explicit finding concerning the trial
court’s decision to not appoint a relative as Ann’s PMC. To the extent that
Mother argues that there is no finding that “it would not be in the best interest of
the child to appoint a relative of the child or another person as managing
conservator,” we hold that the finding is implied. 8
B. Evidentiary Challenges
In the remainder of her first issue and her second and third issues, Mother
contends that the evidence does not support the appointment of TDFPS as PMC
and that the evidence is legally and factually insufficient to support the implicit
finding that a relative placement is not in the child’s best interest. As we have
previously explained,
8
See Ruiz v. Ruiz, No. 02-12-00136-CV, 2013 WL 530958, at *4 (Tex.
App.—Fort Worth Feb. 14, 2013, no pet.) (mem. op.) (holding trial court did not
abuse its discretion by denying appellant full extended possession after implicitly
finding that it was not in child’s best interest and citing Celestine v. Dep’t of
Family & Protective Servs., 321 S.W.3d 222, 234 (Tex. App.—Houston [1st Dist.]
2010, no pet.) (holding that trial court made an implicit finding that waiver of
section 162.009’s six-month residency requirement was not in the children’s best
interest); and In re C.R.T., 61 S.W.3d 62, 67 (Tex. App.—Amarillo 2001, pet.
denied) (holding that evidence warranted trial court’s implicit finding that
presumption was rebutted such that conservatorship with parent would not be in
children’s best interest)); see also In re C.B., No. 13–11–00472–CV, 2012 WL
3139866, at *5 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.)
(holding that trial court did not abuse its discretion by implicitly finding that it was
not in C.B.’s best interest to relocate to New Mexico with father; substantive and
probative evidence demonstrated it was in C.B.’s best interest to remain in
mother’s custody because mother maintained a safe and healthy home that was
free of sexual abuse).
12
The burden of proof in conservatorship cases, as opposed to
termination cases, is a preponderance of the evidence. The
standard of review in conservatorship cases is abuse of discretion.
The trial court has wide latitude in determining the best interests of a
minor child. We will reverse the judgment of the trial court only when
it appears from the record as a whole that the court has abused its
discretion. A trial court abuses its discretion if it acts arbitrarily and
unreasonably or without reference to guiding principles. An abuse of
discretion does not occur as to factual matters as long as some
evidence of a substantive and probative character exists to support
the trial court’s decision. Legal and factual sufficiency are not
independent grounds for review in conservatorship cases, but they
are relevant factors in deciding whether an abuse of discretion
occurred. In determining whether there has been an abuse of
discretion because the evidence is legally or factually insufficient to
support the trial court’s decision, we engage in a two-pronged
inquiry: (1) Did the trial court have enough information upon which
to exercise its discretion; and (2) did the trial court err in applying its
discretion? The traditional sufficiency review comes into play with
regard to the first question. With regard to the second question, we
determine, based on the elicited evidence, whether the trial court
made a reasonable decision.
The trial court did not file any separate findings of fact and
conclusions of law supporting its ultimate conservatorship finding in
the decree. When no findings of fact or conclusions of law are filed
in a bench trial, the trial court’s judgment implies all findings of fact
necessary to support it, but these implied findings are not
conclusive. An appellant may challenge them by raising both legal
and factual sufficiency of the evidence points. 9
Consequently, we will treat the remainder of Mother’s first issue and her
second and third issues as complaints that the trial court abused its discretion by
appointing TDFPS, and not a relative, as the child’s PMC.
9
In re W.M., 172 S.W.3d 718, 724–25 (Tex. App.—Fort Worth 2005, no
pet.) (citations omitted).
13
Subsection (b) of section 263.404 of the family code provides that in
deciding whether to appoint TDFPS as the child’s PMC, the trial court shall
consider the following factors:
(1) that the child will reach 18 years of age in not less than three
years;
(2) that the child is 12 years of age or older and has expressed a
strong desire against termination or being adopted;
(3) that the child has special medical or behavioral needs that make
adoption of the child unlikely; and
(4) the needs and desires of the child. 10
Limiting ourselves to the evidence admitted at trial, we see that the only
relevant factor is (4), the child’s needs and desires. But as we have explained
before,
[a] court’s primary consideration in any conservatorship case shall
always be the best interest of the child. Courts may use the
nonexhaustive list of Holley factors to determine the child’s best
interest. Those factors include:
(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 parental abilities of the individuals seeking custody;
(5) the programs available to assist these individuals to promote the
best interest of the child;
10
Tex. Fam. Code Ann. § 263.404(b).
14
(6) the plans for the child by these individuals or by the agency
seeking custody;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent (or potential conservator)
which may indicate that the existing . . . relationship is not a proper
one; and
(9) any excuse for the acts or omissions of the (potential
conservator).
These factors are not exhaustive; some listed factors may be
inapplicable to some cases; other factors not on the list may also be
considered when appropriate. 11
While there was certainly favorable evidence in support of naming Uncle
and Aunt as Ann’s PMCs, there was also evidence supporting the trial court’s
decision. Ann has a half-brother. While it is not clear from the admitted evidence
whether Ann and her older half-brother ever lived in the same home, Ann had an
ongoing relationship with him. At trial, he lived locally with their maternal
grandmother, who had not been evaluated by CPS as a potential conservator of
Ann. Naming Aunt and Uncle as PMCs and removing TDFPS from the case
could have placed that ongoing sibling relationship in practical limbo absent
further court involvement, seemingly at odds with the concern that Mother
expressed for the relationship before trial.
Further, Aunt became pregnant around the time that Ann moved in with the
couple, which means the trial court could foresee that within two to three months
11
W.M., 172 S.W.3d at 725–26 (citations omitted).
15
of trial, Aunt and Uncle would be providing emotional and financial support to
three children under the age of four years, an eight-year-old, and a teenage
nephew. While the trial court did not hear evidence about the details of the
couple’s finances, it is clear that the couple is not independently wealthy, as
evidenced by Aunt’s testimony that she and Uncle are “pretty financially set since
[they’re] still living in the same place and still got jobs.” The evidence also
indicated that Mother and Father had never paid child support for Ann, and there
was no evidence that either intended to pay child support in the future. With the
trial court appointing TDFPS as Ann’s PMC, Aunt and Uncle may receive medical
support and foster care payments for Ann’s financial support until she finishes
college. 12
Additionally, had Uncle and Aunt been named PMCs, the CPS worker
believed that this family would face “a lot of litigation in the future.” The financial
responsibility of defending against Ann’s removal from their family in a private
suit would have rested with Uncle and Aunt. While the parents can file a petition
to modify the PMC status of TDFPS, legal counsel employed by the State of
Texas will defend TDFPS. Aunt and Uncle will face no obligatory legal costs in
such a battle. Given the above evidence, we cannot say that the trial court
abused its discretion by leaving Ann in the home of Uncle and Aunt but
appointing TDFPS as her PMC.
12
See Tex. Fam. Code Ann. § 264.101 (West Supp. 2012).
16
III. Challenges to Endangerment Findings
In her fourth and fifth issues, Mother contends that the evidence is factually
insufficient to support the endangerment findings. The trial court denied
termination, however, and those findings have no bearing on the trial court’s
conservatorship determination, which we have already upheld. 13 We overrule
Mother’s fourth and fifth issues.
IV. Conclusion
Having overruled Mother’s five issues, we affirm the trial court’s judgment.
LEE ANN DAUPHINOT
JUSTICE
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: October 10, 2013
13
See In re J.P., No. 02-10-00448-CV, 2012 WL 579481, at *10 (Tex.
App.—Feb. 23, 2012, no pet.) (mem. op. on reh’g); In re C.T.E., 95 S.W.3d 462,
469 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see also Tex. R. App. P.
47.1.
17