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


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  •                         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