in the Interest of C.A.C. and K.M.C., Children ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00029-CV
IN THE INTEREST OF C.A.C. AND K.M.C., CHILDREN
On Appeal from the 72nd District Court
Lubbock County, Texas
Trial Court No. 2017-526,396, Honorable Ann-Marie Carruth, Presiding
December 14, 2022
MEMORANDUM OPINION
Before PARKER and DOSS and YARBROUGH, JJ.
Appellant, Mother,1 appeals from the trial court’s order in this modification
proceeding, contending that the trial court abused its discretion by granting Father access
to their children. We affirm.
BACKGROUND
Mother and Father were named as joint managing conservators of their two
daughters, C.A.C. and K.M.C., in February of 2019. In May of 2019, Father struck ten-
1To protect the privacy of the parties involved, we will refer to the appellant as “Mother,” to the
appellee as “Father,” and to the children by initials. See TEX. FAM. CODE ANN. § 109.002(d).
year-old C.A.C. with his hand, which led to an investigation by the Department of Family
and Protective Services. The Department created a safety plan, which Mother signed,
providing that Mother would not allow any unsupervised contact between Father and the
children outside of the Department’s offices. In December of 2019, Father pleaded guilty
to the misdemeanor offense of assault arising from the May incident.2 He was convicted
and placed on community supervision for twenty-four months.
In June of 2020, Father filed a motion for enforcement of possession and access,
asserting that the children had not been allowed to see him during several periods of
visitation. Shortly thereafter, Mother filed a petition to modify the parent-child relationship,
citing Father’s conviction of an offense involving family violence. Mother sought to be
named as sole managing conservator and to have Father removed as joint managing
conservator. At the same time, Mother filed a petition to terminate the parent-child
relationship, which was later withdrawn. The associate judge denied Father’s motion to
enforce and entered temporary orders appointing Mother as temporary managing
conservator and Father as temporary possessory conservator. The orders required
Father to have visits with the children in a therapeutic setting.
The final hearing on Mother’s petition to modify was held in May of 2021 before
the presiding judge. Following the hearing, the trial court issued a letter ruling naming
Mother sole managing conservator and Father possessory conservator. Father was
granted possession and access to the children under a stepped-up visitation schedule.
2 See TEX. PENAL CODE ANN. § 22.01(a)(1).
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The trial court denied Mother’s motion to reconsider the letter ruling and signed the order
at issue on December 17, 2021. Mother then filed this appeal.3
ANALYSIS
In her sole issue, Mother argues that the trial court, by granting Father access to
the children, failed to comply with sections 156.1045 and 153.004 of the Texas Family
Code, which require the trial court to take a history of family violence into account when
making conservatorship and possession determinations. See TEX. FAM. CODE ANN.
§§ 153.004, 156.1045.4 When a trial court modifies conservatorship, we review that
decision under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449,
451 (Tex. 1982); Nichol v. Nichol, No. 07-12-00035-CV, 2014 Tex. App. LEXIS 492, at *7
(Tex. App.—Amarillo Jan. 15, 2014, no pet.) (mem. op.). Abuse of discretion occurs when
the trial court acts arbitrarily, unreasonably, and without reference to guiding principles.
In re A.D.T., 588 S.W.3d 312, 319 (Tex. App.—Amarillo 2019, no pet.). We will not disturb
the trial court’s decision unless the appellant establishes that the trial court so acted. In
re M.S.F., 383 S.W.3d 712, 715 (Tex. App.—Amarillo 2012, no pet.).
Section 156.1045, entitled “Modification of Order on Conviction for Family
Violence,” provides:
(a) The conviction . . . of a person who is a possessory conservator or a
sole or joint managing conservator for an offense involving family
violence is a material and substantial change of circumstances sufficient
to justify a temporary order and modification of an existing court
3In his brief, Father asserts that Mother did not timely perfect her appeal. Father’s argument
overlooks Mother’s motion for extension of time to file notice of appeal, which we granted on February 3,
2022, pursuant to Texas Rule of Appellate Procedure 26.3.
4 Further references to the Texas Family Code will be to “section __” or § __.”
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order . . . that provides for the appointment of a conservator or that sets
the terms and conditions of conservatorship or for the possession of or
access to a child to conform the order to the requirements of Section
153.004(d).
§ 156.1045(a). “It is a rebuttable presumption that it is not in the best interest of a child
for a parent to have unsupervised visitation with the child if credible evidence is presented
of a history or pattern” of family violence by that parent. § 153.004(e). Under section
153.004, a trial court “may not allow” a parent to have access to a child when it is shown
that there is a history of family violence, unless the trial court (1) finds that awarding the
parent access to the child would not endanger the child’s physical health or emotional
welfare and would be in the best interest of the child and (2) renders a possession order
that is designed to protect the safety and well-being of the child and any other person
who has been a victim of family violence committed by the parent. § 153.004(d), (d-1).
The order may require that periods of access be continuously supervised by an entity or
person chosen by the court. § 153.004(d)(2)(A).
The trial court found that Father has a history or pattern of committing family
violence during the two-year period preceding the filing of this suit or during the pendency
of this suit. It further found that awarding Father access to the children would not
endanger the children’s physical health or emotional welfare and would be in the best
interest of the children.
The record includes evidence that Father misses spending time with the children
and wants to have a positive relationship with them. The therapist that Father and the
children visit testified that Father has shown “substantial improvement” in his relationship
with the children. She stated that one of her goals was to help Father become “responsive
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instead of reactive” to C.A.C., and that she has witnessed Father make that change. The
therapist further testified that Father and K.M.C. have “a very good relationship.”
The trial court’s possession order requires Father to complete a parenting course,
an anger management course, and ten joint counseling sessions with the children before
any visitation begins. Following completion of those requirements, Phase 1 of the
stepped-up visitation plan begins, during which Father may have supervised visitation
through the Dispute Resolution Center twice a month for six months. After that six-month
period, in Phase 2, Father may have unsupervised visitation one Saturday afternoon each
month for six months. Then, in Phase 3, Father may have one overnight visit per month.
The order provides for Father to return to the previous phase if he misses any visits in
Phase 2 or Phase 3.
The trial court’s order conditions Father’s access to and visitation with his children
on the completion of certain requirements. Further, it imposes a safety measure,
supervision, on Father’s visitation once it begins, and a measured approach to
unsupervised visitation. Thus, we conclude that the order is designed to protect the safety
and well-being of C.A.C. and K.M.C. as required by section 153.004(d-1). Mother has
not shown that the trial court abused its discretion in granting Father access to the children
under the conditions set forth in the order. See, e.g., In re K.L.S., No. 11-21-00094-CV,
2022 Tex. App. LEXIS 975 at *23–24 (Tex. App.—Eastland Feb. 10, 2022, no pet.) (mem.
op.) (where trial court made implied finding of history or pattern of family violence by
mother, no abuse of discretion where trial court ordered that mother’s access to child be
limited and visitation with child be supervised); see also In re S.A.H., 420 S.W.3d 911,
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930 n.31 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (appellate courts give wide
latitude to trial courts’ determinations on possession and visitation issues).
CONCLUSION
For the reasons set forth above, we overrule Mother’s issue and affirm the
judgment of the trial court.
Judy C. Parker
Justice
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