in the Interest of I.M.A., a Child ( 2015 )

Opinion filed November 19, 2015
In The
Eleventh Court of Appeals
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No. 11-14-00297-CV
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IN THE INTEREST OF I.M.A., A CHILD
On Appeal from the 318th District Court
Midland County, Texas
Trial Court Cause No. FM-50853
MEMORANDUM OPINION
After a final hearing in this suit affecting the parent-child relationship, the trial
court appointed Appellant and Appellee joint managing conservators of I.M.A., a
child. The trial court also named Appellee as the person who had the right to
determine I.M.A.’s residence. We affirm.
Appellee is I.M.A.’s biological mother. I.M.A was born in 2006. At the time
of I.M.A.’s birth, both Appellee and I.M.A. tested positive for marihuana and
cocaine. As a result, Child Protective Services told Appellee that, if she did not find
someone with whom to place I.M.A. and his older brother, CPS would remove the
children from her home. Appellee contacted Appellant and asked her to take I.M.A.
and his older brother. Appellant was a good friend of Appellee and was Appellee’s
older son’s godmother. Appellant agreed to take the children, and on July 12, 2006,
I.M.A. and his brother moved in with her.
A month or two after I.M.A. and his brother went to live with Appellant,
Appellee spent one week in county jail in connection with a drug possession charge
and a traffic violation. Appellee testified that she had been in county jail numerous
times.
Subsequently, in 2007, when I.M.A. was a little over a year old, Appellee was
sentenced to the penitentiary on a 2006 drug charge. Appellee was released from
the penitentiary on May 24, 2008, just under one year after her confinement began.
I.M.A. and his brother were living with Appellant at the time. During the time
between the date that I.M.A. and his older brother went to live with Appellant and
the time that Appellee went to the penitentiary, CPS assisted with visitation between
I.M.A., his brother, and Appellee. The evidence shows that Appellee actually lived
with them in Appellant’s house for “[m]aybe three months.” After that time,
Appellee visited with her sons, and some of those periods of visitation included
weekend periods.
About a week and one-half after Appellee was released from prison, I.M.A.’s
older brother came to live with her. Appellee testified that I.M.A. continued to live
with Appellant because Appellant had “some CPS papers that [Appellee] later
obtained saying that [Appellant] had custody of both . . . boys until we obtained
lawyers.”
Appellant testified that, in May 2008, Appellee took possession of I.M.A.’s
older brother from her. Appellee did not take I.M.A. at that time because, according
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to Appellant, they had an understanding that Appellant was going to adopt I.M.A.
and that Appellee was going to raise I.M.A.’s older brother.
In March 2009, however, Appellee, with the assistance of “the police,” took
I.M.A. from Appellant. At that time, according to Appellant, Appellee told her to
“get a lawyer because she was going to fight for custody.” I.M.A. lived with
Appellee from that time until May 2009, when Appellee agreed to let I.M.A. stay
with Appellant until they “came to court.”
In July 2009, Appellee’s parole was revoked as a result of an assault charge.
Appellee testified that her boyfriend’s mother filed the assault charge but later
dropped it. Nonetheless, Appellee served the remainder of her sentence and was
released around November 2009. She continued to have agreed/“handshake,”
regular visitation with I.M.A. into the fall of 2013.
On March 23, 2010, Appellant filed a suit affecting the parent-child
relationship; I.M.A. was the only child made the subject of the suit. At the time that
Appellant filed her lawsuit, no court orders had been entered regarding possession
of I.M.A. The trial court conducted a final hearing on Appellant’s petition on July 3,
2014.
At the hearing, Appellee confirmed that she was on cocaine and marihuana
when I.M.A. was born. She also admitted that the two drugs were in I.M.A.’s system
when he was born. She agreed that she had asked Appellant to take her children so
that CPS would not take them and that Appellant had agreed to, and did, take the
children. I.M.A. was two days old at the time, and his older brother was eighteen
months old.
At some point, Appellant and Appellee began to have “communication”
problems. Appellee testified that, because there were no court orders to the contrary,
she took I.M.A. out of school in September 2013.
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Ultimately, on October 2, 2013, after several continuances, the trial court
conducted a hearing on temporary orders. At the conclusion of the hearing on
temporary orders, the trial court appointed Appellant as I.M.A.’s temporary
managing conservator. The trial court appointed Appellee as a temporary possessory
conservator with “standard possession.” On the Tuesday before the final hearing,
I.M.A. was placed with Appellee for thirty days.
On appeal, Appellant complains that the trial court used the wrong standard
when it appointed Appellee managing conservator with the right to determine
I.M.A.’s residence. Section 153.131 of the Texas Family Code provides for a
rebuttable presumption that “a parent shall be appointed sole managing conservator
or both parents shall be appointed as joint managing conservators of the child” the
subject of the suit. TEX. FAM. CODE ANN. § 153.131(a) (West 2014). The
presumption applies “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.” Id. If
there is a “finding of a history of family violence involving the parents of a child,”
the presumption is removed. Id. § 153.131(b).
Section 153.373 of the Texas Family Code provides that the parental
presumption is rebutted if the court finds that “the parent has voluntarily relinquished
actual care, control, and possession of the child to a nonparent . . . for a period of
one year or more, a portion of which was within 90 days preceding the date of . . .
filing of the suit.” Id. § 153.373 (West Supp. 2015). The court must also find that
“the appointment of the nonparent . . . as managing conservator is in the best interest
of the child.” Id.
The trial court entered findings of fact and conclusions of law. In its Finding
No. XI, the trial court stated, “Placement of children with natural parents or other
siblings should be favored absent other extenuating circumstances.” In its Finding
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No. XIII, the trial court provided, “It is in the best interest of the child that [Appellee]
be appointed Managing Conservator with the right to determine the residence of the
child.” Appellant argues that, by this language, the trial court indicated that it only
applied the presumption that a child should be placed with biological parents. We
disagree. We cannot say that, when the trial court included the words “absent other
extenuating circumstances,” in combination with its best interest finding, the court
found anything other than that none of the conditions that would rebut the
presumption existed in this case. In the absence of those “extenuating
circumstances,” the parental presumption would apply. We cannot say that the trial
court applied the wrong standard in this case.
Appellant does not present legal and factual sufficiency arguments in the
argument section of her brief. The only mention of sufficiency is in the prayer or
conclusion portion of her brief. Nevertheless, we take Appellant’s issue to be that
the trial court used the wrong standard for the appointment of a managing
conservator under the facts of this case and that, had it used the correct standard, the
evidence would have been legally and factually insufficient to support the judgment.
Because we have held that Appellant has not shown that the trial court erred when it
utilized the parental presumption, even if Appellant properly raised sufficiency
issues, we need not address them as they relate to Section 153.373. We overrule
Appellant’s issue on appeal.
We affirm the order of the trial court.
JIM R. WRIGHT
November 19, 2015 CHIEF JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
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