in the Interest of D.J., a Child ( 2019 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-18-00386-CV
IN THE INTEREST OF D.J., A CHILD
On Appeal from the 320th District Court
Potter County, Texas
Trial Court No. 80596-D, Honorable Don Emerson, Presiding
February 26, 2019
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PARKER, JJ.
Following a bench trial, the trial court signed a judgment terminating the parent-
child relationship between D.J. and his parents,1 and dismissing maternal grandparents,
Jim and Flo, as managing conservators of D.J. Despite having agreed to his dismissal,
Jim contends on appeal that the trial court abused its discretion by removing him as a
1 To protect the privacy of the parties involved, we will refer to the mother of the child as M.J., the
father of the child as J.C., the maternal grandfather as Jim, the maternal grandmother as Flo, and the child
as D.J. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2018); TEX. R. APP. P. 9.8(b).
conservator of D.J. where such removal was contrary to the best interest of D.J. 2 We
affirm the judgment of the trial court.
Factual and Procedural Background
D.J.’s mother is M.J. and his father is J.C.3 In 2012, the maternal grandparents of
D.J., Jim and Flo, were appointed D.J.’s managing conservators. D.J. has lived with Jim
and Flo most of his life.
The Department of Family and Protective Services became involved with nine-
year-old D.J. in March of 2017, because of concerns of physical abuse, sexual abuse,
and drug use by Jim and Flo. There were also concerns about M.J.’s drug use because
she was in and out of the home. The Department’s investigator interviewed D.J. at the
Children’s Advocacy Center. D.J. detailed physical and verbal abuse as well as drug use
within the home by his grandparents and his mother. D.J. has “a lot of knowledge” of
drugs for a nine-year-old. According to D.J., his mother smokes marijuana and uses
crack and cocaine. He described the “specific pipe that his mom smokes the marijuana
in.” D.J. also stated his grandmother hit him on his ear resulting in a “ringing sound” after
she hit him.
Flo admitted to the investigator that she hit D.J. in the ear and that she and Jim
use cocaine. Flo stated that she snorts cocaine provided by Jim “about three times a
month.” Flo said when she gets angry with D.J. she hits him and calls him names.
2 Flo also appeals her dismissal as a conservator. Flo’s attorney has filed an Anders brief and
resolution of her appeal is pending in cause number 07-19-00040-CV.
3 M.J. and J.C. did not appeal the termination of their parental rights so we will discuss only the
facts necessary for an understanding of the issue raised in this appeal.
2
According to Flo, “[D.J.] is a bad kid and she does not know what else to do with him.”
Flo has heard Jim tell D.J. he was “born to be hit” and Jim also calls D.J. names.
On March 16, 2017, the Department filed a petition seeking a modification of
conservatorship and termination of parental rights. Following an adversary hearing, the
judge found, in part, that it was contrary to the welfare of D.J. to reside in the home of Jim
and Flo, and the Department was appointed temporary managing conservator of D.J. Jim
and Flo agreed to the temporary order and signed it. D.J. was placed temporarily with
his paternal grandmother in Amarillo.
D.J.’s placement with his paternal grandmother was short-lived due to D.J.’s
aggressive behavior. D.J. was moved to an emergency youth shelter in Richmond,
Texas, then he was placed in a residential treatment center. As soon as his behavior
stabilized, D.J. was placed with his great aunt, Flo’s sister, in Austin, Texas. D.J. is
flourishing in his placement with his aunt. He is doing well in school. Since D.J. was
placed with his aunt, his level of care has changed from specialized to moderate, and his
disrupting behaviors have decreased. D.J.’s aunt is interested in adopting him. Jim and
Flo are bonded with D.J. and maintained telephone contact with him after he was placed
in Austin. According to the caseworker, appointing the Department as permanent
managing conservator pending an adoption by his aunt is in the best interest of D.J.
The court held the final hearing on September 5, 2018. At the beginning of the
hearing, counsel for the Department announced that an agreement had been reached
between the Department and the maternal grandparents, whereby Jim and Flo agreed to
be dismissed as conservators of D.J. The attorney ad litem announced that if the court
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terminated the parents’ rights, the Department should be named permanent managing
conservator and D.J.’s placement with his aunt should be continued. The attorney ad
litem also recommended that Jim and Flo have supervised visits with D.J. until he is
adopted.
After the Department presented evidence in support of termination, Jim and Flo
both testified that it was in D.J.’s best interest that they be removed as conservators.
The court terminated M.J.’s and J.C.’s parental rights finding one or more statutory
predicate grounds and that termination was in the best interest of D.J. See TEX. FAM.
CODE ANN. § 161.001(b) (West Supp. 2018).4 The court also dismissed Jim and Flo as
conservators but found it is in D.J.’s best interest to have “post-termination access.” The
Department was named the permanent managing conservator of D.J. pending adoption
by his aunt.
Standard of Review
We review a conservatorship decision under a less stringent standard of review
than the standard for termination. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).
Conservatorship determinations are subject to review only for an abuse of discretion, and
we will reverse only if the decision is arbitrary and unreasonable. Id. If a court terminates
the parent-child relationship with respect to both parents or to the only living parent, the
court shall appoint “a suitable, competent adult,” the Department, or a licensed child-
placing agency as managing conservator of the child. § 161.207(a) (West Supp. 2018).
4 Further references to provisions of the Texas Family Code will be by reference to “section __” or
“§ __.”
4
The primary consideration in determining conservatorship is always the best interest of
the child. § 153.002 (West 2014).
Analysis
In his sole issue, Jim contends that the trial court abused its discretion by removing
him as a conservator of D.J. where such removal was contrary to the best interest of D.J.
In response, the Department argues that Jim presents nothing for appellate review
because he clearly and unmistakably agreed to the dismissal of his conservatorship. We
agree with the Department.
A party cannot generally appeal from a judgment to which it has consented or
agreed absent an allegation and proof of fraud, collusion, or misrepresentation. In re
T.G., No. 09-16-00250-CV, 2016 Tex. App. LEXIS 12996, at *10 (Tex. App.—Beaumont
Dec. 8, 2016, no pet.) (mem. op.). A party who consents to a trial court’s entry of judgment
waives any error in the judgment except jurisdictional error, and that party has nothing to
properly present for appellate review. Baw v. Baw, 949 S.W.2d 764, 766 (Tex. App.—
Dallas 1997, no pet.). The rationale of such a rule is that a party will not be allowed to
complain on appeal of an action or ruling which he invited or induced. Boufaissal v.
Boufaissal, 251 S.W.3d 160, 162 (Tex. App.—Dallas 2008, no pet.).
On direct examination, Jim testified about the agreement with the Department:
Jim’s attorney: You understand that we’ve reached an agreement today
with –with the Department?
Jim replied: Well, I did.
Jim’s attorney: And that agreement is that y’all will be dismissed out [of] the
case, but that we have asked from the court that y’all be allowed post-
termination rights. So in other words, even if mom’s rights are terminated,
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the mother’s rights are terminated, you would still have access to [D.J.],
pending an adoption?
Jim: Right.
Jim’s attorney: Do you know that?
Jim: Right.
Jim’s attorney: Is that your agreement?
Jim: Yeah.
Jim’s attorney: Okay. Do you think that at this particular point in time that’s
in the best interest for [D.J.]?
Jim: Yeah. I’ll say yes.
The record before us indicates that Jim explicitly agreed to the dismissal of his
conservatorship. Jim voiced no objection when the Department announced the
agreement to dismiss his conservatorship, and Jim testified affirmatively that dismissal of
his conservatorship was in the best interest of D.J. Jim neither alleges nor presents any
evidence of any fraud, collusion, or misrepresentation surrounding the agreement with
the Department. See In re T.G., 2016 Tex. App. LEXIS 12996, at *10. Further, there was
no evidence presented to establish appointment of another suitable, competent adult as
conservator of D.J. other than the Department. See § 161.207(a).
Nevertheless, even if Jim had not otherwise waived error for appeal, we overrule
Jim’s issue because we cannot say that the trial court abused its discretion. See In re
J.A.J., 243 S.W.3d at 616. The trial court’s decision as to conservatorship was neither
arbitrary nor unreasonable given the evidence surrounding D.J.’s removal from Jim’s care
and the remarkable improvement that D.J. has shown since he was placed with his aunt.
It would be contrary to D.J.’s best interest to have failed to remove Jim as a conservator
under the circumstances. See § 153.002.
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We overrule Jim’s sole issue.
Conclusion
The judgment of the trial court dismissing Jim’s conservatorship is affirmed.
Judy C. Parker
Justice
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