in the Interest of L.M.R., a Child ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00892-CV
IN THE INTEREST OF L.M.R., a Child
From the 73rd Judicial District Court, Bexar County, Texas
Trial Court No. 2019-PA-02001
Honorable Peter A. Sakai, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: April 8, 2020
AFFIRMED
Appellant D.D. appeals the trial court’s December 11, 2019 final order in a suit affecting
the parent-child relationship (“SAPCR”) that appoints her possessory conservator of her child,
L.M.R., and appoints D.D.’s mother and L.M.R.’s maternal grandmother, J.G., as L.M.R.’s non-
parent permanent managing conservator. We affirm the trial court’s order.
BACKGROUND
D.D. is the mother of two children, C.D. and L.M.R. In June of 2018, the Department of
Family and Protective Services (“the Department”) attempted to work services with D.D.’s family
after receiving reports of domestic violence between D.D. and L.M.R.’s father, L.R. The
Department also received reports that D.D. used illegal drugs, had attempted suicide, and had
expressed suicidal ideations. On December 5, 2018, the Department removed the children from
D.D.’s custody because D.D. overdosed and was hospitalized in a mental health facility.
D.D. and the children lived with J.G. for a significant portion of the children’s lives. After
the Department removed the children, it placed them with J.G. and filed a petition to terminate the
parental rights of D.D., L.R., and C.D.’s father, H.T. However, the Department eventually
abandoned its request to terminate the parents’ rights, and C.D moved to California to live with
H.T. 1 J.G. intervened in the case and sought sole managing conservatorship of L.M.R. The
Department agreed that J.G. should be named permanent managing conservator of L.M.R., and it
recommended possessory conservatorship for D.D. and L.R.
On December 11, 2019, the trial court signed a final order appointing J.G. as L.M.R.’s
permanent managing conservator and D.D. and L.R. as possessory conservators. The court found
that appointing either D.D. or L.R. as managing conservator would not be in L.M.R.’s best interest
because that appointment would significantly impair L.M.R.’s physical health or emotional
development. The trial court ordered that D.D. would have possession of and access to L.M.R. for
four hours per week and prohibited D.D. from residing or staying overnight in the home where
L.M.R. lives. It also ordered J.G. to supervise D.D.’s visits with L.M.R. While D.D. appealed the
trial court’s order, L.R. did not. 2
ANALYSIS
Standard of Review
We review a trial court’s orders regarding conservatorship of a child for abuse of discretion.
In re R.J., 381 S.W.3d 619, 622 (Tex. App.—San Antonio 2012, no pet.). “In family law cases,
legal and factual sufficiency challenges do not constitute independent grounds for asserting error,
but are relevant factors in determining whether the trial court abused its discretion.” In re I.Z.K.,
1
On September 25, 2019, the trial court severed the cases involving C.D. and L.M.R. D.D.’s appeal of the trial court’s
final SAPCR order regarding C.D. is currently pending in this court in Cause Number 04-19-00866-CV.
2
L.R. filed a brief adopting the Department’s arguments on appeal.
No. 04-16-00830, 2018 WL 1176646, at *2 (Tex. App.—San Antonio Mar. 7, 2018, no pet.) (mem.
op.) (internal quotation marks omitted). A trial court does not abuse its discretion so as to require
reversal unless it acts arbitrarily, unreasonably, or without reference to any guiding rules or
principles. Alvarez v. Alvarez, No. 04-13-00787-CV, 2015 WL 1938700, at *1 (Tex. App.—San
Antonio Apr. 29, 2015, no pet.) (mem. op.). A trial court has “wide latitude” on issues of custody,
control, possession, and visitation. Brendel v. Brendel, No. 04-08-00883-CV, 2009 WL 3789604,
at *1 (Tex. App.—San Antonio Nov. 11, 2009, no pet.) (mem. op.). This standard of review
recognizes that the trial court “is in the best position to observe the demeanor and personalities of
the witnesses and can feel forces, powers, and influences that cannot be discerned by merely
reading the record.” Roberts v. Roberts, 402 S.W.3d 833, 841 (Tex. App.—San Antonio 2013, no
pet.) (internal quotation marks omitted).
Applicable Law
In a termination proceeding, if the trial court does not order termination of the parent-child
relationship, it shall either (1) deny the Department’s petition or (2) render any order in the best
interest of the child. TEX. FAM. CODE ANN. § 161.205; In re M.I.A., No. 04-19-00227-CV, 2019
WL 5030241, at *9 (Tex. App.—San Antonio Oct. 9, 2019, no pet.). In all cases involving
conservatorship of a child, the best interest of the child must be the trial court’s primary concern.
TEX. FAM. CODE ANN. § 153.002; Roberts, 402 S.W.3d at 841. “It is a rebuttable presumption that
the appointment of the parents of a child as joint managing conservators is in the best interest of
the child.” TEX. FAM. CODE ANN. § 153.131(b). However, that presumption is overcome if the trial
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.” Id. § 153.131(a).
Application
D.D. argues that legally and factually insufficient evidence supports the trial court’s finding
that appointing her as managing conservator would significantly impair L.M.R.’s physical health
or emotional development. The Department responds that the evidence supports the trial court’s
ruling and the court therefore did not abuse its discretion.
The Department caseworker who was assigned to this case testified that D.D. endangered
her children by, inter alia, failing to maintain a safe and stable home, using fake urine in drug tests,
engaging in criminal activity, and continuing an on-and-off-again relationship with L.R. even
though she claimed he abused her. The caseworker also noted that during the course of this case,
D.D. was hospitalized several times for suicidal ideations and once attempted suicide. In addition,
the caseworker reported that D.D.’s older child, C.D., had told his after-school teacher and his
father that he wanted to kill himself. Based on her observations, the caseworker did not believe
D.D. demonstrated an ability to change the behavior that led to the children’s removal. She noted,
for example, that D.D. had held “[a]t least five” different jobs over the course of this case and that
D.D. sometimes cancelled visits with the children because she reported being “too emotional” for
a visit. She also testified that she did not believe D.D. had adequately treated her mental health
conditions or shown that she can provide a safe and stable home environment for children. The
caseworker testified that she believes D.D. could pose a risk to the children if she were awarded
unsupervised visits with them. The caseworker agreed, however, that D.D. loves her children and
“interact[s] well” with L.M.R.
The Department also expressed concern about a June 4, 2019 incident in Lookout
Comanche Park that ended with D.D.’s arrest. The arresting officer, San Antonio Police
Department Detective James Burnette, testified that he was called to the park to investigate “a lady
in a car with a gun.” Detective Burnette testified that the woman he encountered “was extremely
drunk, acting like a drunk acts, very irrational, combative, argumentative” and that she said
“something to [the] effect” of asking him to shoot her. He also testified that she threatened, swore,
and spit at him and his partner, and that she used a racial slur against his partner. At trial, Detective
Burnette was unable to positively identify D.D. as the woman he arrested, but his police report
identifying her by her full name and describing her actions that night was admitted into evidence.
D.D.’s therapist, Glenn Tisdale, testified that D.D. told him she put a gun in her mouth and
pulled the trigger. See In re R.R., No. 02-13-00464-CV, 2014 WL 3953930, at *3 (Tex. App.—
Fort Worth Aug. 14, 2014, no pet.) (mem. op.) (identifying parent’s “history of mental disorders
[and] suicidal thoughts” as relevant to best interest determination). Tisdale also testified that D.D.
told him she did not want the responsibility of being a mother, and she acknowledged that “[o]n
some occasions” it was unsafe for her to be around her children. Tisdale testified D.D. had been
stable for approximately 60 days before trial but “the pattern is that [stability has] not always been
present.” He noted that she had been manic or unstable “more than half of the times” he had seen
her. He also testified that if D.D. does not take her prescribed medications, “there is a chance or
risk factor for . . . stress or frustration to be present with [the] children.” Based on these
observations, Tisdale believed D.D.’s visits with the children should be supervised.
D.D.’s current boyfriend testified that he called the police during the June 4 incident in the
park, that he owned the rifle the police removed from D.D. at that time, and that D.D. had taken
the rifle from him. He testified that D.D. “had a lot of anger toward herself,” but she is taking her
medication regularly and is more stable now than she was at the beginning of their relationship.
He does not believe she poses a danger to the children or anyone else and testified that “since she’s
been with me, she’s had more stability.” He believed it would be appropriate for D.D. to have
unsupervised access to her children for an extended period of time. He acknowledged, however,
that at the time of trial, he and D.D. had only been together for approximately four months.
D.D. described the June 4 incident as “a mental breakdown” that occurred because she
“was internalizing all of the negative things that were said about [her]” during a hearing in this
case that occurred earlier that day. She testified that since then, she has been put on a medication
regimen that makes her “completely able, stable, capable.” She told the trial court she has “learned
a lot of coping skills” over the course of this case and that she does not believe her access to her
children should be limited or supervised.
A trial court does not abuse its discretion if there is some evidence of a substantive and
probative character to support its ruling, even if the record contains conflicting evidence. In re
H.N.H., No. 04-18-00574-CV, 2019 WL 2996972, at *2 (Tex. App.—San Antonio July 10, 2019,
no pet.) (mem. op.). Here, although both D.D. and her current boyfriend testified that D.D.’s mental
health had stabilized, other witnesses testified that D.D.’s stability is “mostly up and down” and
that she exhibited erratic and dangerous behavior during the pendency of this case. Based on this
evidence, we hold the trial court did not abuse its discretion by finding that appointing D.D. as a
managing conservator would significantly impair L.M.R.’s physical health or emotional
development and was therefore not in L.M.R.’s best interest. See TEX. FAM. CODE § 153.131.
Accordingly, we overrule D.D.’s sole issue on appeal.
CONCLUSION
We affirm the trial court’s December 11, 2019 final order in a suit affecting the parent-
child relationship.
Beth Watkins, Justice