in the Interest of X v. a Child ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-227-CV
IN THE INTEREST OF X.V.,
A CHILD
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FROM THE 325TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
Appellant Mother appeals from an order appointing Aunt 2 as managing
conservator of Mother’s son, X.V. In a single compound issue, Mother questions
whether the trial court properly applied section 153.131 of the Texas Family Code
1
See Tex. R. App. P. 47.4.
2
The titles of ?Mother,@ AAunt,@ and AUncle,@ which are used throughout this
opinion, describe the person=s legal relationship to X.V.
when it appointed Aunt as managing conservator of X.V. and whether there was
sufficient evidence to support the trial court=s finding that naming Mother as
managing conservator would significantly impair X.V.=s emotional or physical
development. We will affirm.
II. FACTUAL AND PROCEDURAL BACKGROUND
Mother is the mother of X.V., who was eight years old at the time of trial.
Twenty-eight months prior to trial, Mother voluntarily transferred possession of
X.V. to Aunt so that Mother could enlist in the military. 3 Mother signed
guardianship papers that she found on the internet and set the guardianship term
from December 20, 2006 to December 20, 2008. Before a year had expired but
after Mother had learned that she could not get into the Navy or the Army, Mother
demanded that X.V. be returned to her. Aunt filed suit on December 5, 2007,
because Mother wanted X.V. back, and Aunt thought that was not in X.V.’s best
interest. Aunt also sought a restraining order because Mother ―had a history of
kidnapping her kids.‖
On April 29 and May 1, 2009, the trial court held a hearing to determine
whether Mother or Aunt should be named X.V.’s managing conservator. The trial
court heard testimony from Aunt, Mother, Uncle, and the Family Court Services
worker who was appointed to perform the social study. A summary of their
3
X.V.’s father is not involved in his life and is not a part of these proceedings.
2
testimony follows.
A. Aunt’s Testimony
1. Aunt’s Background4
Aunt testified that she was fifty-two years old at the time of the trial and lived
in Tarrant County with her husband (Uncle) and X.V. Aunt was self-employed as
an independent contractor who managed health fairs and mobile insurance
exams. She testified that she had no criminal record, had never been
investigated by CPS, and did not use illegal drugs. Aunt said that she was in
Dimmitt visiting relatives when Mother signed a paper giving her guardianship of
X.V. because she wanted to join the military. Mother’s plan was that she would
join the military in order to better her life, pick up a trade, and become stable.
2. X.V.’s Behavior When He Arrived at Aunt’s House
When X.V. came to live with Aunt, he was hyperactive and restless and had
difficulty sleeping through the night. Aunt also said that X.V. ―was rough in
personality and behavior. He had social issues. He had a difficult time with his
peers. He was easily upset and prone to anger and fights, . . . overall, . . . he
could be described as a difficult child.‖ X.V. wanted to eat only Ramen noodles,
4
Although many questions were asked of Aunt about her health, we omit
such testimony from the factual background because it is not relevant to the
determination at hand: whether appointing Mother as X.V.’s managing
conservator would significantly impair his physical health or emotional
development. See Tex. Fam. Code Ann. § 153.131(a) (Vernon 2008).
3
did not have any sense of organization, and liked to watch horror and combat
movies. X.V. at age five knew about alcohol, sexual activity, and how drugs were
used. Aunt was concerned about X.V.=s social skills because they were rough
and about his sexual knowledge.
3. Mother’s Visits and Calls
Mother did not come to Tarrant County to visit X.V. from December 2006 to
June 2007, and her first phone call occurred during the second month that Aunt
cared for X.V. During the next six-month period from June to December 2007, the
number of Mother=s calls increased, but she did not come to Tarrant County to visit
X.V. Aunt, however, made trips to Dimmitt and always allowed Mother to see X.V.
During the six-month period from December 2007 to June 2008, Mother
continued to call.
After that, in August 2008, Mother requested that the trial court allow her to
speak to X.V., which Aunt said was already allowed, and Mother began calling
Aunt=s cell and home phones ten to twelve times a day. The trial court also
allowed Mother to have supervised visits, but Mother did not visit with X.V. from
August through December 2008. Mother=s first supervised visit since Aunt filed
her petition occurred in March 2009. After Mother started her visits, her phone
calls were not as frequent.
4. Mother’s Employment
4
Aunt said that Mother and X.V. lived with her for approximately seven
months when X.V. was an infant and that Mother=s employment history when she
lived with Aunt ranged from about two to four months. Aunt said that Mother
needs to hold a stable job because it would teach her responsibility and Aprobably@
curtail her desire to party.
5. Mother’s Child Support
Mother was ordered to pay child support in August 2008, but Aunt testified
that she had received only one payment for $187. Aunt believes that based on
the fact that Mother has not paid child support, she may not be financially able to
care for X.V. Additionally, Aunt said that X.V. is expensive because he eats four
meals a day and participates in karate and soccer.
6. Mother’s Relationships
Aunt testified that X.V. had seen fights between Mother and Michael A., who
was the father of his step-sister M. While X.V. was living with Aunt, he was fearful
for M. and felt guilty for not being around to protect her. Aunt also testified that
after Mother separated from Michael, Mother and Michael kept kidnapping M. from
each other. Aunt said that it was not good for X.V. to continue to be around
Michael even though X.V. considered Michael to be his father.5
During the six years prior to trial, Mother and X.V. had lived with four
5
X.V. thought that Michael was his father until Mother told him upon their
break-up that Michael was not his father.
5
different men. Aunt testified that Mother’s relationships were not in X.V.=s best
interest and that they significantly impaired his emotional health, safety, and
welfare because of the backgrounds of the men that Mother had dated or lived
with. However, Aunt admitted that since she had filed suit in December 2007, she
had not had the opportunity to observe Mother=s habits or dating other than when
Aunt had visited Mother.
7. Mother’s Living Conditions
Aunt testified that Mother had moved at least a dozen times over X.V.=s life.
Aunt was concerned about the fact that Mother moves often, that she drinks, and
that there was always beer around. Although Aunt had not seen Mother drunk,
Aunt thought that she had seen Mother high on marijuana.
8. X.V.’s Behavior After Living with Aunt
Aunt said that during the month prior to trial, X.V. was more relaxed and felt
more assured that he was not going anywhere and that, in turn, his attitude turned
around. Aunt said that X.V. received mostly green marks (good) for his conduct at
school and that his ADHD-like symptoms no longer exist.
Aunt described X.V. at the time of trial as a brilliant child who was very
loving. X.V. had been absent only two or three days per school year since he had
been living with Aunt. X.V. was doing Aexceptionally well@ in school and had
participated in karate, soccer, and swimming.
6
Aunt said that X.V. loves Mother, M., Aunt, and Uncle. Aunt said that X.V.=s
behavior was more regulated at her house but that he was prone to setbacks and
that emotional upsets caused him setbacks in school, at home, and with his
friends. Aunt said that X.V.=s dietary habits had grown and that he was eating
vegetables at almost every meal and was willing to try new foods. Aunt said that
X.V. knows that there are rules in place at her house and does his best to follow
them. Aunt said that X.V. receives discipline in her home and that he has a set
routine. Aunt said that she would describe X.V. as Athriving@ now because there is
stability in his life. Aunt said that it is important to X.V. that he comes home to the
same home; that someone is at home waiting for him; that he has his own room,
and that he has his own things that are not lost, given away, or stolen.
9. Aunt’s Opinion and Recommendations
Aunt said that she would not have filed this lawsuit if she thought that Mother
was capable of taking care of and providing for X.V. Aunt said that since they
went to court in August, Mother had not shown much change. Aunt wants X.V. to
have the basics that a child needs to be a responsible, active member of society
and wants him to know that education is important. Aunt does not believe that
Mother can provide such a life for X.V. Aunt said that if Mother took some
parenting classes and was able to establish a stable home and a stable job, Aunt
would be comfortable with letting Mother come back into the role as caretaker of
7
X.V.
Aunt=s main complaints about Mother are her instability and her lack of
parenting skills. Aunt admitted that her complaints now are the same ones that
she had when Mother dropped off X.V., and Aunt was willing, at that time, for the
guardianship to be temporary. Aunt also admitted that it was not part of the
original guardianship agreement for Mother to have to prove certain skills in order
for X.V. to be returned. Aunt said that she filed suit because she saw the positive
changes that had occurred in X.V. and could not return him to Mother=s unstable
environment.
The trial court asked Aunt what her primary concern was about Mother’s
having unsupervised visits with X.V., and Aunt said that she was concerned that
Mother would involve him Ain her routine, in her lifestyle, and the people that she
associates with.@ Aunt said that when X.V. knows that he is going to see Mother,
he becomes distracted in school for about a week. She said that X.V. changes if
he gets information that he might have to leave his solid life and return to Mother.
He becomes unruly and talks back to his teacher, and it is distressing to him.
When he feels the instability coming, he reverts and regresses. Aunt said that if
Mother could keep X.V. with her and avoid exposing him to her friends and her
lifestyle, that might be acceptable, but there was no guarantee that Mother was
going to do that because she had not shown signs of changing.
8
B. Mother’s Testimony
1. Mother’s Background
Mother lived on a farm-to-market road outside Amarillo at the time of trial.
She testified at trial regarding her relationships with various men.
Mother said that her relationship with Michael was rocky and that there was
conflict because she would not let him discipline X.V. Mother=s relationship with
Michael involved physical abuse from him more than once a week, but Michael
was not abusive towards X.V. Mother said that Michael treated X.V. differently
after their daughter M. was born; Michael favored M. During her testimony,
Mother admitted that she had been convicted for assaulting Michael.
Mother said that Michael always had a job and supported her, X.V., and M.
So when Mother decided to separate from Michael, she had to find a place to live
and stayed with family and friends.
After Mother separated from Michael, she spent time at Romero Rivera=s
home. She had no intention of having a romantic relationship with Rivera, but he
made sexual suggestions to her and tried to discipline X.V. Rivera also threw
away all of Mother=s and X.V.=s belongings, so she left. Mother ultimately asked
Aunt to keep X.V. because she was thinking of what was best for him.
At the time of trial, Mother was seeing Felix ―Filo‖ Hernandez, and he had
accompanied Mother to some of the visits with X.V. However, Mother said that
9
she does not intend for Fernandez to be a father figure to X.V.; Mother does not
live with him and does not plan to marry him. Mother said that she Ahad kind of
known something@ about Fernandez=s criminal background but did not know that
he had been convicted of a felony until the Family Court Services worker told her.
She said that she would not allow Fernandez to be around X.V. if X.V. was
returned to her.
2. Mother’s Plan for the Guardianship
Mother testified that she had intended to reunite with X.V. after she joined
the military. However, after she found out that she could not get into the Navy or
the Army, she demanded possession of X.V. from Aunt. Mother said that her plan
was for X.V. to finish the fall 2007 semester in Fort Worth and then have him come
live with her. But because Aunt was not letting Mother know what was going on
with X.V., Mother demanded him back sooner than the end of the semester, which
resulted in Aunt’s filing suit.
3. Employment
Mother said that after she left X.V. with Aunt, she went to work at Swift for
two or three months until she went to jail for violating a protective order when she
went to visit M. at Michael=s. Mother’s employment with Swift was thereafter
terminated because she was not able to call in from jail and because Swift did not
10
tolerate no-shows.
Approximately two months after that, Mother bartended at a restaurant
called Paloma=s for a week or two before she found a day job at Affiliated. Mother
left Affiliated after two weeks because she was having to lift heavy loads, and the
pay was not worth it.
A couple of months after she left Affiliated, Mother went to work at Super 8
for a couple of months. Mother left Super 8 because of having to miss work to
come to Fort Worth.
A couple months after that, Mother started working at ABC Cleaning. At the
time of the trial, Mother testified that she was still working for ABC Cleaning and
was making $8 an hour but that she was looking for full-time employment. Mother
said that her last full-time job was in 2005 to 2006 and that coming to Fort Worth
during the months before the trial had made it difficult for her to keep a job because
she had to keep asking for time off.
Mother=s pay stubs showed that she had made $796 to date. Mother had
used the money to pay for a social study, her attorney’s fees, and one child support
payment. Mother said that she had been off and on food stamps.
Mother said that she cannot afford to move to Fort Worth and that she has
responsibilities to visit M. where she is living. Mother admitted that she could not
financially support a child with the work hours that she was currently getting.
11
Mother said that in light of her current circumstances, it would not be easy for her to
take care of X.V. without someone=s help.6 But Mother said that she could provide
X.V. with the necessities.
4. Child Support
Mother admitted that the trial court had ordered her on August 22, 2008 to
pay $187 per month in child support and that she was not paying it. Mother said
that she could not pay the $187 per month because she did not get enough hours
at her job. Mother admitted that since she has been working at ABC Cleaning,
she has not had a car payment or a house payment but that she has not paid child
support. Mother said that she had not asked her friends for help in paying her
child support.
5. Jail
As mentioned above, Mother spent time in jail on August 22, 2006, for
violating a protective order and spent several days in jail for traffic tickets.
6. Drugs
Mother said that she quit using marijuana after it was reported in the 2006
CPS report. Mother, however, later admitted that she had used drugs on one
occasion since then. Mother testified that she is not an alcoholic or a drug addict.
7. Mother’s Living Situation
6
Mother said that she could not support X.V. when she was by herself during
the year before trial but that now she had a friend, Fernandez, who could help her.
12
Mother said that when she was working at Super 8, she was living with a
person named Jesus. After that, she lived at a hotel for a month but stayed six
nights with Fernandez=s sister.
Mother said that during the six months prior to the trial, she had rented her
own place and was trying to Akeep up with a job.@ Around January 2009, Mother
started living in the trailer where she currently lives. Mother was in the midst of
remodeling the trailer and said that the remodeling counted as her rent. Mother
admitted that her living situations were not the best for X.V. Mother also admitted
that it was best for X.V. to remain in the situation where he was thriving, had a
comfortable home and friends, and was making good grades until Mother could
establish a job and a home with which she was satisfied.
8. If X.V. Lived With Mother
Mother said that the bus would take X.V. to school if he lived with her.
Mother knew that there were daycare centers in Amarillo, but at the trial in May
2009, she admitted that she had not attempted to get into a program that would
help pay for X.V.=s summer care.
Mother said that she loves X.V. and that she intended for Aunt=s care of X.V.
to be only temporary. Mother admitted that her bond with X.V. was not as strong
as it was before he went to live with Aunt, but Mother thought that the bond would
get stronger if he lived with her again.
13
C. Uncle’s Testimony
Uncle testified that he had an incident with Fernandez while X.V. was
present. Mother started accusing Uncle, and Uncle told Mother that if she had
been a better mother, she would still have X.V. Thereafter, Fernandez started to
pick a fight with Uncle and began threatening him. When Fernandez continued to
threaten Uncle, he and X.V. left.
Uncle also testified that he believes that moving X.V. would significantly
impair his emotional health, safety, and welfare.
D. The Social Study
James Gottlich, who was employed by Family Court Services, performed
the social study in this case.7 He visited Aunt’s home and Mother’s home and
conducted interviews with various people connected to the case.
1. What the Interviews Revealed
Gottlich=s understanding was that Mother=s placement of X.V. with Aunt and
her husband in December 2006 was purely voluntary. Mother left X.V. with Aunt
because Mother was going to enlist in the Navy; however, Mother could not get
into the Navy because she had charges against her and was on probation when
she tried to enlist.
Gottlich understood from Aunt that X.V. had some problems when he came
7
The parties stipulated that Gottlich is an expert in social work.
14
to live with them. He sensed Athat there=s a little bit of roughness about@ him.
Gottlich said that X.V.=s Aroughness@ did not rise to the level of an emotional or
physical developmental impairment. Gottlich believes that X.V.=s roughness
could be the result of having seen rough behavior in the past; Gottlich thought that
X.V. had scars from his Aprevious life.@ Gottlich described X.V. as energetic, very
vigilant, and very territorial and said that X.V. had Aa very strong personality,@ but
Gottlich would not describe X.V. as a bully.
X.V.=s room at Aunt=s house was appropriate, and the house seemed
appropriate for an eight-year-old child. According to Gottlich, Aunt has met X.V.=s
needs for food, clothing, and shelter, as well as his financial and emotional needs
A[v]ery appropriately.‖
When Gottlich interviewed Mother, he said that Mother tended to minimize
some issues. For example, Mother told Gottlich that she and her youngest child=s
father ―had a conflicted relationship off and on,‖ but X.V. told Gottlich that he
witnessed ―some pretty violent things‖ between Mother and Michael. Also,
Mother mentioned CPS involvement in a cursory way, but she did not mention that
there was a family safety plan. Gottlich later learned that there were several CPS
reports made against Mother in 2006, but only the insufficient supervision of X.V.
and M. by Mother and Michael was found to be Areason to believe.@ Gottlich also
learned that there was Aa pretty extensive safety plan@ and that Mother did not
15
follow it; she simply left, giving M. to Michael and X.V. to Aunt. Gottlich did not
recall noting that Mother had inflicted any physical abuse on X.V., but Gottlich
testified that Mother had done some things that could be harmful to X.V.8
With regard to her relationships with men, Mother said that she met Michael
in the summer of 2001 and almost immediately began cohabitating with him.
They separated in November 2006. Mother has had a Aconflicted relationship@
with Michael; Gottlich understood that Mother was trying to work something out
with Michael so that she could see M. and was paying Michael child support.
Gottlich was aware that Mother had an offense for assault causing bodily injury to a
family member (Michael).
Mother mentioned a paramour named Fernandez, whom she said she was
seeing but not living with. Mother provided Fernandez’s birth date, which allowed
Gottlich to obtain a copy of his criminal record. Gottlich said that Fernandez=s
criminal record listed the following offenses in its offense summary: aggravated
assault with a deadly weapon, assault causing bodily injury to a family member,
theft by check of property greater than $20 and less than $500, evading arrest, bail
jumping and failure to appear, interference with emergency call, driving while
license suspended, and driving while license invalid. Gottlich investigated
8
For instance, Gottlich stated in his report that Mother had reported on
December 5, 2006 that she used marijuana two to three times a month, with use
one week prior to the October 9, 2006 screening.
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Fernandez because it was reported that Mother was reliant upon or accepted
assistance from him and his family; that they were involved in her life; and that she
had frequent contact with him, his family, and his extended family. Fernandez
told Gottlich that Mother could stay with him.
When Gottlich went to Mother=s trailer, there was a dresser in X.V.=s
bedroom, along with a bed, and it appeared to be an appropriate bedroom. There
was nothing in Mother’s house that was reported as an imminent danger to X.V.
X.V. told Gottlich that he only owned a dresser once before while living with
Mother; usually, he had only a bag for his possessions. Gottlich=s report states
that Mother had allowed X.V. to be absent more than fourteen days from school;
Mother told Gottlich that the absences did not apply to X.V. because he was in
pre-K, but the principal countered through CPS that X.V. was in kindergarten, and
so the absences counted. Based on his interview with X.V. and the parties,
Gottlich formed the impression that X.V. moved around a lot.
The August 22, 2008 orders required Mother to have supervised possession
through Family Court Services. Mother=s first visit with X.V. was March 8, 2009,
because she said that she never received the letter telling her to come for
supervised visitation. Gottlich observed a visitation and saw Mother demonstrate
appropriate behavior. It appeared that Mother loves X.V. and that he loves her.
They had Ahappy banter@ about X.V.=s eighth birthday. During the approximately
17
five years that X.V. lived with Mother, Gottlich assumed that X.V. had developed a
mother-child relationship with Mother.
2. Gottlich’s Concerns
During Gottlich=s visit to Mother=s home, he had concerns about its isolation.
He did not see evidence of other people when he was there, and the school was
Asome distance@ from where she lived. Gottlich also noticed that Mother was in
the process of repairing the trailer and that there was standing water at the
plumbing outside the trailer, that the kitchen was not totally put together, and that
the master bathroom was under construction. Gottlich saw evidence that some
recent repairs had been completed, and there was one fully functional bathroom.
Gottlich also was concerned that Mother was in a period of transition
because she had held different jobs over the past several years and was employed
at the time of trial doing Acleanups of trailers@ and was seeking employment that
would provide benefits.9 Gottlich was uncomfortable with the lack of consistency
of Mother=s trying to improve her life and said that he would not want to put an
eight-year-old child in a position where so much transition was possible. Gottlich
believed that it is damaging to the emotional health, safety, and welfare of a child to
9
The only employment history that Mother gave Gottlich was that she had
worked at Wal-Mart from April 2006 to May 2006 and that she had worked at Smith
Personnel from May 20, 2005, until March 18, 2006. Mother may have mentioned
other employment, but Gottlich was not able to verify any other jobs at the time of
his report.
18
move frequently, and he believed that X.V. might regress significantly if he was
placed back with Mother because for two years, X.V. had lived in a very stable
environment and had progressed academically and emotionally.
Gottlich reported that ―[M]other seems to continue to struggle with parenting
issues‖ and that Mother and Michael were still ―arguing and acting inappropriately
with one another . . . includ[ing] inappropriate behaviors in front of the children.‖
Gottlich=s report stated that X.V. observed fights between Mother and Michael in
which they were each pulling on an arm, and Mother threw a large television into a
wall. Gottlich believed that kind of behavior is damaging to the emotional health,
safety, and welfare of a child because it is scary. Gottlich testified that removing a
child from an environment in which there is domestic violence and in which there is
a convicted felon is in the child=s best interest.
Moreover, Gottlich was alarmed when Mother’s drug test results were much
higher than the cutoff for marijuana. And Gottlich believed that Mother had
minimized information. He reported that she
was not fully forthcoming as she discussed her life history. She
failed to mention the significant involvement of Child Protective
Services (CPS) in her life and the lives of her children. She did not
identify that she had been incarcerated in jail following a domestic
violence incident in September of 2006. Instead of working toward
completion of the family plan, she instead ―voluntarily‖ placed each
child, and failed to cooperate according to CPS. The mother never
took advantage of the services offered that would potentially assist
her in becoming a more competent parent.
19
Gottlich, however, had no concerns about Aunt or Uncle raising X.V.
Gottlich therefore testified that it would significantly impair the emotional health,
safety, and welfare of X.V. if he was removed from his current environment.
3. Gottlich’s Recommendations
Gottlich testified that, based on the home study, he could not recommend
that the trial court place X.V. back with Mother. Gottlich recommended that X.V.
continue to live with Aunt and that Mother continue to have supervised visitation
like the trial court ordered in the latter part of 2008. Gottlich said that for Mother to
have unsupervised visitation, she should move to the Fort Worth area and try to
reintegrate into X.V.=s life more; if she lived closer, Gottlich thinks that she could
see her son in a more natural environment and possibly Alearn some things.@
Gottlich testified that if Mother was able to establish a stable home (preferably in
Fort Worth), pass drug tests, and do everything that a typical mother would do, he
would then recommend that she have more access to and possession of X.V.
because those changes would improve Mother=s competency as a parent and
would ultimately benefit X.V.
E. Trial Court’s Disposition
At the conclusion of the hearing, the trial court ordered Mother to take a hair
follicle drug test. Mother=s attorney sent the trial court the results of Mother’s drug
test, which revealed that she tested negative for all substances.
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The trial court thereafter issued a letter ruling appointing Aunt as X.V.=s sole
managing conservator. The letter ruling appointed Mother as possessory
conservator and provided that she could have supervised visitation with X.V. This
appeal followed.
III. SUFFICIENT EVIDENCE OF IMPAIRMENT TO SUPPORT TRIAL COURT’S DECISION
In her single compound issue, Mother questions whether the trial court
properly applied section 153.131 of the Texas Family Code when it appointed Aunt
as managing conservator of X.V. and whether there was sufficient evidence to
support the trial court=s finding that naming Mother as managing conservator
would significantly impair X.V.=s emotional or physical development. We construe
Mother’s compound issue as a challenge to whether the trial court abused its
discretion by concluding that the evidence was legally and factually sufficient that
Aunt had rebutted the parental presumption set forth in Texas Family Code section
153.131(a).
A. Standard of Review
We give wide latitude to a trial court’s decision on custody, control,
possession, and visitation matters. Earvin v. Dep’t of Family & Protective Servs.,
229 S.W.3d 345, 350 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We will not reverse a
conservatorship finding unless the record demonstrates that the trial court abused
21
its discretion. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Whitworth v.
Whitworth, 222 S.W.3d 616, 622–23 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
(op. on reh’g). Under an abuse of discretion standard, challenges to the legal and
factual sufficiency of the evidence are not independent grounds of error; rather,
they are simply factors in assessing whether the trial court abused its discretion.
Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no
pet.).
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 by applying its
discretion? The traditional sufficiency review comes into play with regard to the
first question. In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no
pet.); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied).
With regard to the second question, we determine, based on the elicited evidence,
whether the trial court made a reasonable decision. W.M., 172 S.W.3d at 725;
T.D.C., 91 S.W.3d at 872.
Findings of fact entered in a case tried to the court have the same force and
dignity as a jury’s answers to jury questions. Anderson v. City of Seven Points,
806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findings of fact are reviewable
22
for legal and factual sufficiency of the evidence to support them by the same
standards that are applied in reviewing evidence supporting a jury’s answer. Ortiz
v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel, 881 S.W.2d 295,
297 (Tex. 1994). When findings of fact are filed and are unchallenged, they
occupy the same position and are entitled to the same weight as the verdict of a
jury; they are binding on an appellate court unless the contrary is established as a
matter of law or there is no evidence to support the finding. McGalliard v.
Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Rischon Dev. Corp. v. City of Keller,
242 S.W.3d 161, 166 (Tex. App.—Fort Worth 2007, pet. denied), cert. denied, 129
S. Ct. 501 (2008).
B. Parental Presumption
There is a strong presumption that the best interest of a child is served if a
natural parent is appointed a managing conservator. Whitworth, 222 S.W.3d at
623; see also Tex. Fam. Code Ann. § 153.131(a). Section 153.131 provides that
a parent shall be appointed sole managing conservator unless the court finds that
appointment of the parent or parents would not be in the best interest of the child
because the appointment would significantly impair the child’s physical health or
emotional development. Tex. Fam. Code Ann. § 153.131(a).
For the court to award managing conservatorship to a non-parent under
section 153.131, the non-parent must prove a significant impairment by a
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preponderance of credible evidence. Whitworth, 222 S.W.3d at 623; see also
Tex. Fam. Code Ann. § 105.005 (Vernon 2008) (―Except as otherwise provided by
this title, the court’s findings shall be based on a preponderance of the evidence.‖);
J.A.J., 243 S.W.3d at 616. There must be evidence to support the logical
inference that some specific, identifiable behavior or conduct of the parent will
probably cause that harm. Whitworth, 222 S.W.3d at 623. Indeed, the
non-parent must offer evidence of specific acts or omissions of the parent that
demonstrate that an award of custody to the parent would result in physical or
emotional harm to the child. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.
1990); Whitworth, 222 S.W.3d at 623.
An adult’s future conduct may be somewhat determined by recent past
conduct; however, evidence of past misconduct, in and of itself, may not be
sufficient to show present unfitness. Whitworth, 222 S.W.3d at 623. Specific
acts or omissions of a parent implicating a significant impairment to a child’s
emotional development may be inferred from direct evidence. Id. However, this
link between the parent’s conduct and harm to the child may not be based on
evidence that merely raises a surmise or speculation of possible harm. Id.
C. Evidence of Significant Impairment
Here, the trial court made fifteen findings of fact based on the social study
and the testimony at trial:
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1. [X.V.] has been subjected to an environment that would
impair [his] physical health or emotional development while in the
care, custody and control of [Mother].
2. While living in Washington [Mother] attempted to teach
[X.V.] to swim. At the direct instruction of [Mother], [X.V.] took off his
life jacket, immediately sank and tried to crawl up the walls of the
swimming pool. He lost consciousness and [Mother] had to retrieve
him from the bottom of the swimming pool. He stated that this was a
very scary experience.
3. [Mother] has been negligent in the supervision of [X.V.]
and his sister. She left him and his sister with a baby-sitter who did
not watch them appropriately. [X.V.] and his sister were injured by
another child because of [Mother’s] negligence.
4. [Mother] has a history of violent behavior. By her own
admission she had an assault by contact and violation of a protective
order. Records show that she was convicted of a subsequent
[violation of a] protective order.
5. [Mother] did not provide a proper residence for [X.V.] in
that [X.V] frequently saw fighting between his [Mother] and his
step-sister’s father, MICHAEL [A.], while at that residence. This was
an environment in which the police were called frequently.
Specifically, [X.V.] saw [Mother] being dragged across the concrete
by MICHAEL [A.], [Mother] throw a television set and beer bottles at
MICHAEL [A.], and MICHAEL [A.] being dragged across the concrete
by the police. [X.V.] has had to call 911 on at least one occasion to
report domestic violence.
6. [Mother] was often unable to provide [X.V.] with some
basic items. She was able to provide him with a dresser only once.
He usually had only a bag for his possessions.
7. She was incarcerated in the Amarillo City Jail on August
22, 2006, which made it impossible for her to provide for [X.V.]
8. [Mother] has a long history of drug use. She tested
positive for a drug screen on October 9, 2006, even though she
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reported her last drug use as being two to three months ago. . . .
9. On December 5, 2006 she reported her last drug use as
being two months ago, with her last use a week before her October 9,
2006 drug screen.
10. [Mother] allowed [X.V.] to be absent from school for more
than 14 days during kindergarten, which is more than the number
allowed.
11. [Mother] has refused to cooperate with the Department of
Protective and Family Services. A plan developed for her to
complete was closed because she did not complete it. The report
states: ―Case is being closed due to both children being in protective
services and [Mother] signing a guardianship for [X.V.] to [Aunt].
Both children are safe, and [Mother] is not cooperating with services.
Case was staffed with PD Davis and Supervisor Campbell who
agreed with case closure due to children being protected and mom
not cooperating. The report also stated the mother moved from the
agreed upon housing, to the home of Sam Fernandez. And that she
was planning to enlist in the United States Navy.
12. [X.V.] is afraid that his mother will receive custody.
13. [Mother] has inconsistent employment and housing, and
continues to place a man before the best interest of her children.
14. [Mother] is not forthcoming, and would not or could not
get the man that she is involved with to present himself for an
interview.
15. [Mother] has not followed the court order by paying child
support on a monthly basis since September 1, 2009. She has made
just one payment.
On appeal, Mother challenges only findings of fact number 1, 2, 3, 4, 6, 7, 8,
a portion of 11, the last portion of 13, and 14. However, Mother did not challenge
all of the findings of fact, including that she did not provide a proper residence for
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X.V., that X.V. had been absent fourteen days from kindergarten, that her
employment and housing had been inconsistent, that X.V. was afraid that Mother
would receive custody, and that she had made only one child support payment.
Nor did Mother establish the contrary as a matter of law; instead, the testimony at
trial bore out these findings of fact. Consequently, these findings of fact are
binding on this court and support the trial court’s judgment. See McGalliard, 722
S.W.2d at 696; Rischon Dev. Corp., 242 S.W.3d at 166; Wimpey v. Wimpey, 662
S.W.2d 680, 682–83 (Tex. App.––Dallas 1983, no writ) (holding that information in
social study, which came in without objection, supported trial court’s judgment
appointing grandparents as managing conservators).
Moreover, Mother did not work her CPS service plan and admitted that she
could not financially support X.V. on the number of hours that she was currently
being given at work; that she was still looking for full-time employment with
benefits; that she was still working on her home; and that until she could establish
a job and a home with which she was satisfied, it was best for X.V. to remain in the
situation in which he was thriving, had a comfortable home and friends, and was
making good grades.
Based on the record, the trial court had enough information on which to
exercise its discretion. The record—which included the social study and
testimony from Aunt, Mother, Uncle, and Gottlich—demonstrated that appointing
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Mother as managing conservator of X.V. would significantly impair X.V.’s physical
and emotional development due to the instability present in Mother’s environment.
See Lewelling, 796 S.W.2d at 167 n.4 (stating that the supreme court has noted
that ―the act of a parent in placing a child in an unstable environment is the very
type of conduct that the Legislature contemplated would significantly impair the
physical or emotional development of a child‖); Lopez v. Dep’t of Family &
Protective Servs., No. 01-08-00111-CV, 2008 WL 4367588, at *7–8 (Tex.
App.—Houston [1st Dist.] Sept. 25, 2008, pet. denied) (mem. op.) (holding that it
was within trial court’s discretion to find that appointing father as the children’s
managing conservator would significantly impair their physical and emotional
development because record disclosed, among other facts, that father was unable
to maintain stable employment and housing and failed to comply with service
plan); In re B.P., Jr., No. 02-07-00251-CV, 2008 WL 2639264, at *6 (Tex.
App.—Fort Worth July 3, 2008, no pet.) (mem. op.) (holding that it was within trial
court’s discretion to conclude that appointing mother as managing conservator of
child would significantly impair child’s physical and emotional development
because mother exhibited inconsistent behavior and an inability to do what was
asked to regain custody and because child with disabilities had extreme need for
structure and stability). Because sufficient evidence exists that appointing Mother
as managing conservator of X.V. would significantly impair X.V.’s physical and
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emotional development, we therefore hold that the trial court did not abuse its
discretion by concluding that Aunt had overcome the parental presumption by
proving that appointing Mother as X.V.’s managing conservator would cause X.V.
significant impairment by a preponderance of credible evidence. See Whitworth,
222 S.W.3d at 623; Ray v. Burns, 832 S.W.2d 431, 434–35 (Tex. App.—Waco
1992, no writ) (holding that evidence was legally and factually sufficient to show
that appointing mother as managing conservator would significantly impair child
when record disclosed mother’s unstable, disorganized, and chaotic lifestyle,
which included living with five different men and residing in ten different cities in the
three years before trial, despite fact that mother had resided in same town and held
steady job in the year and a half before trial); Heiskell v. Kendrick, No.
14-06-00972-CV, 2007 WL 3072002, at *4 (Tex. App.––Houston [14th Dist.] Oct.
23, 2007, no pet.) (mem. op.) (holding that there was sufficient evidence that
father’s appointment as managing conservator would significantly impair the
children’s physical health or emotional development because father had physically
attacked mother on a number of occasions, had made only sporadic visits to the
children following separation from mother, and had failed to provide adequate
financial support for children).
We therefore overrule Mother’s single compound issue.
IV. CONCLUSION
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Having overruled Mother’s sole issue, we affirm the trial court’s judgment
appointing Aunt as managing conservator of X.V.
SUE WALKER
JUSTICE
PANEL: DAUPHINOT, WALKER, and MEIER, JJ.
DELIVERED: August 12, 2010
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