in the Interest of J.J.R.S. and L.J.R.S. ( 2020 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-19-00571-CV
IN THE INTEREST OF J.J.R.S. and L.J.R.S., Children
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2018PA01865
Honorable Charles E. Montemayor, Judge Presiding
Opinion by: Patricia O. Alvarez, Justice
Sitting: Sandee Bryan Marion, Chief Justice
Patricia O. Alvarez, Justice
Irene Rios, Justice
Delivered and Filed: February 12, 2020
AFFIRMED
In this parental rights case, the trial court determined it was in the children’s best interests
to appoint Mom’s sister and husband (Aunt and Uncle) as permanent managing conservators and
to appoint Mom as a possessory conservator. 1 Mom argues there was insufficient evidence to
support the order, the order was void for vagueness, and Family Code section 262.201(o) is facially
unconstitutional. We affirm the trial court’s order.
BACKGROUND
On August 11, 2018, Mom was allegedly prostituting herself, and when her boyfriend came
into the motel room and attempted to rob the client, an altercation ensued. 2 Officers from the San
1
We use aliases to protect the children’s identities. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
2
Mom and Dad were appointed as possessory conservators, but Dad did not appeal. We recite only the facts pertaining
to Mom and the children.
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Antonio Police Department responded. The officers found the two children, then ages ten and
eight, in the same motel but in another room. In that room, the officers found methamphetamine,
marijuana, glass pipes, and an unsecured weapon. Mom stated the weapon was hers.
While the officers were still at the motel, either the San Antonio Police Department or
Mom called Aunt (Mom’s sister) to come and take the children. Aunt took the children to her
home where they have been living with Aunt and Uncle.
Although the children were safe and doing well with Aunt and Uncle, on August 20, 2018,
the Department sought temporary managing conservatorship of the children in case Mom tried to
take the children back from Aunt and Uncle. The trial court granted temporary orders which
appointed the Department as temporary managing conservator of the children, and the Department
chose for the children to remain with Aunt and Uncle.
Sometime before the September 12, 2018 section 262.201 hearing, the Department talked
with Mom and tried to serve her, but Mom was not served before the hearing. At the conclusion
of the adversary hearing, the trial court again appointed the Department as temporary managing
conservator of the children. Mom was served by citation by publication on September 18, 2018.
Mom received a service plan created by the Department, but Mom did not complete her
plan. 3 She failed to complete her psychological evaluation, drug assessment, drug testing, or
substance abuse treatment program; she did not attend most scheduled visits with the children or
provide proof of stable housing and employment. Mom was authorized twenty-three visits with
her children; she attended four but did not provide any reason for missing the other visits. She
was ordered to complete twelve drug tests; she completed none.
3
The record on Mom’s service plans is not clear. Mom’s first service plan in the record shows a “Plan
Completed/Conference Date” of September 13, 2018, but at the September 12, 2018 adversary hearing, the
Department case worker testified that the Department sought temporary managing conservatorship because Mom
refused to sign her service plan.
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Although the children’s ad litem and the CASA volunteer recommended that the trial court
terminate Mom’s parental rights, the Department did not request termination because of the
children’s love for their mother and their ongoing desire to see her.
Taking the children’s desires into consideration, the trial court appointed Aunt and Uncle
as permanent managing conservators and Mom as a possessory conservator. But it ordered that,
for now, Mom have no visits with the children unless Aunt and Uncle approved. Mom appeals.
INSUFFICIENT EVIDENCE FOR CONSERVATORSHIP ORDER
In her first issue, Mom argues there was insufficient evidence to support the trial court’s
conservatorship order. Mom argues that the Department did not present any evidence that Mom
lacked stable housing, was not employed, or used illegal drugs. Mom also insists that the
Department’s witness produced only conclusory statements that are, in legal effect, no evidence.
The Department contends that the evidence was legally and factually sufficient to support
the trial court’s order.
We briefly recite the evidentiary and appellate review standards.
A. Standard of Review
“Conservatorship determinations . . . are subject to review only for abuse of discretion, and
may be reversed only if the decision is arbitrary and unreasonable.” In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007); accord In re L.G.R., 498 S.W.3d 195, 207 (Tex. App.—Houston [14th Dist.]
2016, pet. denied). “The best interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of and access to the child.” TEX.
FAM. CODE ANN. § 153.002; accord In re J.A.J., 243 S.W.3d at 614. In its conservatorship
determination, the trial court has broad discretion to decide the best interest of the child. In re
A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (citing Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)).
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Although an appellant may raise sufficiency of the evidence issues, “[l]egal and factual
insufficiency challenges are not independent grounds for asserting error in custody determinations,
but are relevant factors in assessing whether the trial court abused its discretion.” In re A.L.E., 279
S.W.3d at 427 (citing Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.)).
“A trial court does not abuse its discretion if there is some evidence of a substantive and probative
character to support its decision.” In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied); accord In re A.L.E., 279 S.W.3d at 428.
B. Evidentiary Standard
In a conservatorship determination, an order appointing a nonparent as a managing
conservator must meet only a preponderance-of-the-evidence standard. See TEX. FAM. CODE ANN.
§ 105.005; In re J.A.J., 243 S.W.3d at 616; In re W.M., 172 S.W.3d 718, 724 (Tex. App.—Fort
Worth 2005, no pet.).
C. Discussion
At trial, the Department’s representative testified regarding Mom’s and the children’s
circumstances that the trial court could use to evaluate the best interests of the children. See TEX.
FAM. CODE ANN. § 263.307 (statutory factors i); Holley v. Adams, 544 S.W.2d 367, 371 (Tex. 1976)
(Holley factors ii).
The children were removed because Mom was prostituting herself, her boyfriend attempted
to rob her client, and the young children were found in a room with methamphetamine, marijuana,
glass pipes, and an unsecured weapon. See TEX. FAM. CODE ANN. § 263.307 (factors (1), (3), (8),
(12)); Holley, 544 S.W.2d at 371–72 (factors (B), (C), (D), (G), (H)). The representative also
testified that Mom attended only four of her scheduled twenty-three visits with her children; she
did not complete any of her twelve ordered drug tests; she failed to complete her psychological
evaluation, drug assessment, drug testing, and substance abuse treatment program; and she failed
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to provide proof of stable housing and employment. See TEX. FAM. CODE ANN. § 263.307 (factors
(8), (10), (11), (12)); Holley, 544 S.W.2d at 371–72 (factors (B), (C), (D), (G), (H), (I)). The
representative testified that Mom could not meet the children’s needs, the children are bonded to
their current placement (Aunt and Uncle), and Aunt and Uncle are meeting all the children’s needs
now and will be able to continue to do so. See TEX. FAM. CODE ANN. § 263.307 (factors (2), (6),
(13)); Holley, 544 S.W.2d at 371–72 (factors (A), (B), (C), (F), (G)).
Mom did not object to the testimony, and she did not present any evidence to rebut the
Department’s evidence.
We conclude the evidence was legally and factually sufficient to support the trial court’s
conservatorship order, and the trial court acted within its discretion. See In re K.S., 492 S.W.3d at
426; In re A.L.E., 279 S.W.3d at 428. We overrule Mom’s first issue.
CONSERVATORSHIP ORDER VOID FOR VAGUENESS
In her second issue, citing section 153.006, Mom argues the conservatorship order was
void for vagueness because it does not state the times and conditions for visitation and the
Department failed to show good cause why a specific order is not in the children’s best interests.
See TEX. FAM. CODE ANN. § 153.006 (Appointment of Possessory Conservator). Mom also asserts
that because the order places sole discretion on granting visits in the Aunt and Uncle, her rights to
her children are being effectively terminated.
The Department contends the trial court stated on the record why specific orders were not
in the children’s best interests and the order meets the good cause exception. See id. § 153.006(c).
A. Applicable Law
The Family Code establishes guidelines for the trial court to use in determining possession
for a possessory-conservator parent:
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In ordering the terms of possession of a child under an order other than a standard
possession order, the court shall be guided by the guidelines established by the
standard possession order and may consider:
(1) the age, developmental status, circumstances, needs, and best interest of the
child;
(2) the circumstances of the managing conservator and of the parent named as
a possessory conservator; and
(3) any other relevant factor.
TEX. FAM. CODE ANN. § 153.256; accord In re K.A.M.S., 583 S.W.3d 335, 344 (Tex. App.—
Houston [14th Dist.] 2019, no pet.).
If possession is contested and the order varies from the standard possession order, “on
request by a party, the court shall state in writing the specific reasons for the variance from the
standard order.” TEX. FAM. CODE ANN. § 153.258; accord In re K.A.M.S., 583 S.W.3d at 344. If
no party requests the findings, we will “imply all findings necessary to support the trial court’s
judgment.” In re K.A.M.S., 583 S.W.3d at 344; accord Pickens v. Pickens, No. 12-13-00235-CV,
2014 WL 806358, at *2 (Tex. App.—Tyler Feb. 28, 2014, no pet.) (mem. op.) (citing Roberson v.
Robinson, 768 S.W.2d 280, 281 (Tex. 1989) (per curiam)).
B. Discussion
1. Trial Court’s Order
The trial court’s order appointed Aunt and Uncle as permanent managing conservators and
Mom as a possessory conservator; it also states as follows:
IT IS ORDERED that the conservators shall have possession of the children at
times mutually agreed to in advance by the parties and, in the absence of mutual
agreement, as specified in Attachment A to this order, which is incorporated herein
as if set out verbatim in this paragraph.
In Attachment A, the following subparagraph addresses Mom’s possession of, and access to, the
children:
18.1 [Mom shall have] supervised visitation with the children, under the terms and
conditions agreed to in advance by the managing conservator, provided that the
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managing conservator or other placement shall have 48 hours advance notice of
intent to exercise the visitation. The managing conservator or designee shall
supervise the visitation.
Immediately after subparagraph 18.1 is the following handwritten interlineation:
Only if managing conservator agrees to visitation. Sole discretion.
2. Written Findings Not Requested
Although possession of the children was contested and the trial court varied from the
standard possession order, the record does not show that Mom asked the trial court to state its
findings in writing. See TEX. FAM. CODE ANN. § 153.258; In re K.A.M.S., 583 S.W.3d at 344.
Thus, we will “infer that the trial court made all the necessary findings to support its judgment.”
See Pickens, 2014 WL 806358, at *2 (citing Roberson, 768 S.W.2d at 281).
3. Section 153.006 Compliance
The order does not “specify and expressly state . . . the times and conditions for possession
of or access to the child[ren],” see TEX. FAM. CODE ANN. § 153.006, but that does not end our
analysis, see In re A.N., No. 10-16-00394-CV, 2017 WL 4080100, at *8 (Tex. App.—Waco Sept.
13, 2017, no pet.) (mem. op.).
The Department’s representative testified that Mom was scheduled for twenty-three visits,
but she only showed up for four, and the representative testified about how Mom’s failure to attend
visits was harming the children emotionally. The children cried when Mom did not show up for
the visits, and “when [Mom] doesn’t show up, [the older child] is fearful that something’s
happened to [Mom]. She could be dead. She could be hurt. And so that lack of stability is
extremely emotionally traumatizing for them.”
The trial court expressly stated it was “deviating from the standard possession order based
on the testimony and evidence the Court heard and the reasons for CPS intervention, and the
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recommendations” from the CASA and the children’s ad litem that Mom’s parental rights be
terminated.
4. Specific Orders Not in Best Interest of Children
Having reviewed the evidence in the record, we infer that the trial court found that ordering
specific times and conditions for Mom’s possession was not in the children’s best interests, see
TEX. FAM. CODE ANN. § 153.006; In re K.A.M.S., 583 S.W.3d at 344, and we cannot conclude the
trial court abused its discretion in deciding not to state specific times and conditions for Mom’s
visits but instead ordered that Aunt and Uncle set those times and conditions, see In re K.A.M.S.,
583 S.W.3d at 344 (“A trial court does not abuse its discretion in restricting a parent’s possession
when the record contains some evidence to support a finding that such restrictions are in the child’s
best interest.”); In re A.N., 2017 WL 4080100, at *8.
5. Restrictions on Access and Possession
In the second part of her second issue, Mom argues that the trial court’s order effectively
terminates her parental rights, but her argument is not persuasive.
First, the CASA volunteer and the children’s ad litem both recommended Mom’s parental
rights be terminated—which would give Mom no access to the children. The Department did not
ask for Mom’s rights to be terminated because of the children’s love for and bond with Mom, but
it opposed any visitation by Mom for now based on the emotional trauma her no-shows caused the
children. Although conditioning Mom’s visitation rights on Aunt and Uncle’s approval could be
a severe restriction, “a severe restriction or limitation, even one that amounts to a denial of access,
is permissible if it is in the best interest of the child.” In re A.N., 2017 WL 4080100, at *7 (quoting
In re Walters, 39 S.W.3d 280, 286 n.2 (Tex. App.—Texarkana 2001, no pet.)).
Second, as In re J.A.J. noted, “[t]he Family Code . . . guards against that possibility
[because] [t]he trial court retains jurisdiction to modify a conservatorship order if it is in the child’s
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best interest, and the parent’s or child’s circumstances have materially and substantially changed
since the order was rendered.” In re J.A.J., 243 S.W.3d 611, 617 (Tex. 2007). Mom was
represented at trial by court-appointed counsel, and Mom was present at trial. Mom heard the trial
court limit her access to her children and explain the reasons for the limitations, and Mom’s
counsel arguably had a duty to advise Mom that if her circumstances materially changed, she could
petition the court for greater access. See TEX. FAM. CODE ANN. § 156.001; In re J.A.J., 243 S.W.3d
at 617.
We conclude the trial court’s order was supported by the evidence and was not
unreasonable or arbitrary. See In re J.A.J., 243 S.W.3d at 617. We overrule Mom’s second issue.
CITATION BY PUBLICATION
In her third issue, Mom contends Family Code section 262.201(o) is facially
unconstitutional because she was not served before the full adversary hearing and was thus denied
her due process right to notice and to be heard.
The Department concedes it did not serve Mom before the adversary hearing but argues
Mom’s appearance at subsequent hearings made the failure to serve Mom harmless error.
A. Additional Background
From the August 11, 2018 motel incident, Aunt took Mom’s two children at Mom’s
request. On August 20, 2018, the Department petitioned for temporary managing conservatorship
of the children to prevent Mom from taking the children back from Aunt and Uncle, and the trial
court appointed counsel to represent Mom.
Although the adversary hearing and trial testimony was quite limited, it appears that
sometime before the September 12, 2018 section 262.201 hearing (adversary hearing), the
Department talked with Mom, but it did not successfully serve her. To try to serve Mom, the
Department worker went to the motel where Mom had been living, but Mom was not in the room,
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and the motel’s front desk clerk said Mom no longer lived there. The Department called Mom on
her phone and sent her text messages, but Mom did not respond. The Department asked Aunt if
she knew where Mom was living, but Aunt did not know.
At the adversary hearing, the trial court acknowledged Mom’s counsel’s statement that
Mom had not been personally served, but the court noted section 262.201(o) authorized the court
to issue a temporary order before citation by publication was published if Mom’s location was
unknown. The trial court admonished the Department to keep trying to locate Mom so she could
be personally served, but it also advised the Department to proceed with citation by publication.
The children’s ad litem recommended that the children stay with Aunt and Uncle and asked
the court for “an order protecting [the children] so that the parents can’t come and pick them up.”
The trial court’s September 12, 2018 temporary order appointed the Department as
temporary managing conservator of the children before Mom was served. Six days later, on
September 18, 2018, the trial court signed an Order for Substituted Service by Posting, and Mom
was served by citation by publication.
At the October 15, 2018 status hearing, Mom made a special appearance 4 and announced
not ready. At the February 11, 2019, and May 13, 2019 status hearings, Mom appeared in person
with counsel and announced ready. At the August 8, 2019 trial on the merits, Mom appeared in
person with counsel but announced not ready, which was denied.
B. Applicable Law
Section 262.201(o) reads as follows:
4
On September 23, 2018, Mom petitioned this court for a writ of mandamus—arguing that the trial court abused its
discretion by removing Mom as primary managing conservator of her children before Mom was served. The petition
also raised facial and as-applied challenges to section 262.201(o). In December 2018, this court denied Mom’s petition
and her motion for en banc reconsideration. Subsequently, Mom raised the same issues in the Texas Supreme Court
and the Supreme Court of the United States; neither court granted her requested relief.
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(o) When citation by publication is needed for a parent . . . in an action brought
under this chapter because the location of the parent . . . is unknown, the court may
render a temporary order without delay at any time after the filing of the action
without regard to whether notice of the citation by publication has been published.
TEX. FAM. CODE ANN. § 262.201(o).
When we review a constitutional challenge to a statute, “we begin . . . with a presumption
that the statute is valid.” Tenet Hosps. Ltd. v. Rivera, 445 S.W.3d 698, 701 (Tex. 2014); accord
Nootsie, Ltd. v. Williamson Cty. Appraisal Dist., 925 S.W.2d 659, 662 (Tex. 1996) (“We presume
that a statute passed by the Legislature is constitutional.”).
C. Facial Challenge
“A facial challenge claims that a statute, by its terms, always operates unconstitutionally.”
Tenet Hosps., 445 S.W.3d at 702 (citing United States v. Salerno, 481 U.S. 739, 745 (1987)). To
prevail in a facial challenge, the challenger “must demonstrate that the statute always operates
unconstitutionally.” Wilson v. Andrews, 10 S.W.3d 663, 670 (Tex. 1999); accord In re R.J.S., 219
S.W.3d 623, 628 (Tex. App.—Dallas 2007, pet. denied). “A party seeking to invalidate a statute
‘on its face’ bears a heavy burden of demonstrating that the statute is unconstitutional in all of its
applications.” HCA Healthcare Corp. v. Tex. Dep’t of Ins., 303 S.W.3d 345, 349 (Tex. App.—
Austin 2009, no pet.) (citing Wash. State Grange v. Wash. State Republican Party, 552 U.S. 442,
449 (2008)). “Whether a statute is facially constitutional is a question of law that we review de
novo.” Ex parte Lo, 424 S.W.3d 10, 14 (Tex. Crim. App. 2013); accord Tex. Alcoholic Beverage
Comm’n v. Live Oak Brewing Co., LLC, 537 S.W.3d 647, 654 (Tex. App.—Austin 2017, pet.
denied).
D. Discussion
Mom argues that section 262.201(o) is facially unconstitutional because it “instructs courts
to deprive Texans of their fundamental parenting rights before personal service or service by
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publication has taken place.” 5 We presume that the statute is constitutional, see Tenet Hosps., 445
S.W.3d at 701, and it is Mom’s burden to show it is not, see Wilson, 10 S.W.3d at 670.
But Mom cannot meet her high burden “of demonstrating that the statute is unconstitutional
in all of its applications,” see HCA Healthcare Corp., 303 S.W.3d at 349; accord Wilson, 10
S.W.3d at 670, because, inter alia, the statute’s plain language is permissive, not mandatory, see
TEX. FAM. CODE ANN. § 262.201(o). The statute states “the court may render a temporary order
without delay at any time after the filing of the action without regard to whether notice of the
citation by publication has been published.” Id. (emphasis added). The statute does not compel
the trial court to render a temporary order before citation by publication has been published.
Instead, the trial court has discretion to consider the facts in each case and determine whether the
circumstances warrant issuing a temporary order before citation by publication has been published.
See id.
The statute gives the trial court discretion to render a temporary order after it considers
whether the Department has been diligent in its efforts to locate the parent, the parent’s location
and locating information is not known, see In re E.R., 385 S.W.3d at 560–61, 564, citation by
publication is appropriate, and citation by publication has been published. See TEX. FAM. CODE
ANN. § 262.201(o) (permissive, not mandatory, order). The statute does not require the trial court
to issue a temporary order before citation by publication is published. See id.
In the instance recited above, the parent’s due process rights would not be violated, and
thus Mom has not met her high burden to “demonstrate[e] that the statute is unconstitutional in all
of its applications.” See HCA Healthcare, 303 S.W.3d at 349; see also Tenet Hosps., 445 S.W.3d
at 702; Wilson, 10 S.W.3d at 670. We overrule Mom’s third issue.
5
We agree that Mom’s challenge is not moot because it is capable of repetition but evading review. See Spencer v.
Kemna, 523 U.S. 1, 17 (1998); Murphy v. Hunt, 455 U.S. 478, 482 (1982).
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CONCLUSION
Having reviewed the record, we conclude the evidence was legally and factually sufficient
to support the trial court’s conservatorship order, the trial court found good cause to not issue a
dates-and-times specific order for Mom’s visitation, and Family Code section 262.201(o) is not
facially unconstitutional. Therefore, we affirm the trial court’s order.
Patricia O. Alvarez, Justice
i
Statutory Factors for Best Interest of the Child. The Texas legislature codified certain factors courts should consider
in determining the best interest of a child:
(1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements;
(3) the magnitude, frequency, and circumstances of the harm to the child;
(4) whether the child has been the victim of repeated harm after the initial report and intervention
by the department;
(5) whether the child is fearful of living in or returning to the child’s home;
(6) the results of psychiatric, psychological, or developmental evaluations of the child, the
child’s parents, other family members, or others who have access to the child’s home;
(7) whether there is a history of abusive or assaultive conduct by the child’s family or others who
have access to the child’s home;
(8) whether there is a history of substance abuse by the child’s family or others who have access
to the child’s home;
(9) whether the perpetrator of the harm to the child is identified;
(10) the willingness and ability of the child’s family to seek out, accept, and complete counseling
services and to cooperate with and facilitate an appropriate agency’s close supervision;
(11) the willingness and ability of the child’s family to effect positive environmental and personal
changes within a reasonable period of time;
(12) whether the child’s family demonstrates adequate parenting skills; . . . and
(13) whether an adequate social support system consisting of an extended family and friends is
available to the child.
TEX. FAM. CODE ANN. § 263.307(b); see In re A.C., 560 S.W.3d 624, 631 (Tex. 2018) (recognizing statutory factors).
ii
Holley Factors. The Supreme Court of Texas identified the following factors that courts have used to determine the
best interest of a child:
(A) the desires of the child;
(B) the emotional and physical needs of the child now and in the future;
(C) the emotional and physical danger to the child now and in the future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote the best interest of the child;
(F) the plans for the child by these individuals or by the agency seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the existing parent-child relationship
is not a proper one; and
(I) any excuse for the acts or omissions of the parent.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (footnotes omitted); accord In re E.N.C., 384 S.W.3d 796,
807 (Tex. 2012) (reciting the Holley factors).
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