in Re M.I.A., a Child ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-19-00227-CV
IN THE INTEREST OF M.I.A., a Minor Child
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2017-PA-02030
Honorable Cynthia Marie Chapa, Judge Presiding
Opinion by: Beth Watkins, Justice
Sitting: Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Delivered and Filed: October 9, 2019
AFFIRMED
Appellant M.I.A., a minor child acting through his attorney and guardian ad litem, appeals
the portions of the trial court’s order: (a) denying the petition filed by the Texas Department of
Family and Protective Services (“the Department”) to terminate the parental rights of M.I.A.’s
biological father, appellee M.A.O. (“Father”); and (b) awarding visitation to M.I.A.’s paternal
grandmother O.O. (“Grandmother”). We affirm the trial court’s order.
BACKGROUND
In August of 2014, Father started a long-distance relationship with M.I.A.’s biological
mother, Y.A. (“Mother”). Although they lived in different cities, Father sent Mother money and
did “as much as he [could]” to help her provide for her two children from prior relationships, E.L.
and I.C. During their six-month relationship, Mother became pregnant with M.I.A. When Mother
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told Father she was pregnant, he told her he wanted to be part of the child’s life and asked her to
contact him if she needed anything. During her pregnancy, Mother began dating another man,
Marcos. Father did not send Mother money or other support during her pregnancy because she told
him “that she had someone in her life and she didn’t want [Father] in it.”
A few weeks after M.I.A. was born, Father wanted to meet his son, but Mother refused to
arrange a visit because of her relationship with Marcos. Mother did not ask Father to send financial
support for M.I.A. because “having a relationship with Marcos, [she] thought that everything was
going to be okay and [she] didn’t need anyone else’s help.” She also testified that she was afraid
to put Father’s name on M.I.A.’s birth certificate, get in touch with him, or ask him for money
because Marcos was possessive of her and abused her. As a result, M.I.A., who was three years
old at the time of trial, has never met Father. While Mother testified that the lack of contact between
Father and M.I.A. was her decision, she also stated that she believed Father could be a good parent
to M.I.A.
Mother and Marcos later had a child, A.R., and in August of 2016, Child Protective
Services (“CPS”) received a referral of possible physical abuse of A.R. During that investigation,
CPS discovered that Mother, Marcos, E.L., I.C., M.I.A., and A.R. were living in a dirty, mildewed
room that did not have adequate sleeping arrangements for the children. CPS received a second
referral in August of 2017, when Mother gave birth to a fifth child, O.R., who was born brain dead.
When O.R. was released from the hospital, CPS removed her from Mother and Marcos’s custody
based on concerns that their home was unsafe for her and they could not handle her complex
medical needs.
CPS tried to help Mother and Marcos obtain services that would allow them to retain
custody of Mother’s four other children, including M.I.A. Those attempts failed, and CPS
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eventually removed all the children and placed them in foster homes. 1 It is undisputed that Father
did not do anything that contributed to the children’s removal from Mother and Marcos’s home.
The CPS caseworker who removed the children searched child support and criminal
records for M.I.A.’s father, but she did not find Father because Mother had provided Father’s
nickname instead of his legal name. On September 7, 2017, the Department filed a petition to
terminate the rights of all five children’s biological parents, and the petition identified Father by
the nickname Mother had given the caseworker. In March of 2018, after the Department was
appointed temporary managing conservator of the children, the CPS caseworker who was assigned
to the matter found Father on Facebook. At that time, Father was incarcerated.
When Father was released on probation in May of 2018, he contacted the caseworker and
attended at least one court hearing regarding the children. In June of 2018, the caseworker showed
Father a service plan that ordered him to contact a therapist, undergo a psychosocial evaluation
and random drug testing, and take a parenting class. Father signed the service plan, but he testified
that it was not explained to him at that time and he did not receive a copy of it until the day he
testified at trial. The caseworker testified that she explained the service plan’s requirements to
Father and he did not satisfy them. She also testified that she did not set up any services for him
because he was about to go back to jail. Nevertheless, she agreed that he made attempts to “meet
the spirit” of what she told him to do.
Father went back to jail in July of 2018. Between his release in May and his re-incarceration
in July, he did not seek the court’s permission to have visits with M.I.A., but he called the
caseworker to ask how M.I.A. was doing, and he underwent a DNA test so he could be adjudicated
as M.I.A.’s father. He also asked the caseworker to consider Grandmother as a possible placement
1
Because O.R. had complex medical needs, she was placed in a foster home for medically fragile children instead of
with her four siblings. O.R. passed away before trial.
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for M.I.A. CPS did not perform a case study on Grandmother because “she did not want to have
all four children placed with her.”
The parties tried the Department’s termination petition in a three-day bench trial. Both
I.C.’s father and Marcos voluntarily relinquished their parental rights, and E.L.’s father was
unknown, so the trial focused primarily on the Department’s allegations against Mother and Father.
The trial court heard testimony from the CPS caseworkers, one of E.L.’s teachers, a previous foster
parent for I.C. and M.I.A., the children’s current foster father, the assigned CASA volunteer,
Mother, and Father. After the parties rested, the trial court orally rendered judgment terminating
the parental rights of Mother, Marcos, I.C.’s father, and E.L.’s unknown father; denying the
Department’s petition to terminate Father’s rights; appointing the Department as M.I.A.’s
permanent managing conservator and Father as M.I.A.’s possessory conservator; and ordering
visitation with M.I.A. for Grandmother. The final order specifies that the trial court found
appointing Father possessory conservator was in M.I.A.’s best interest, and it grants Father
“possession and access . . . as provided by this order.” Attachment A to the final order specifies
that Father’s visits with M.I.A. will not begin until Father is released from jail, that those visits
will be supervised by a therapist, and that they are “contingent on therapist availability and
recommendation.” The order also specifies that Grandmother’s visits with M.I.A. will be
supervised by a therapist and will take place in M.I.A.’s hometown, San Antonio.
M.I.A., acting through his attorney and guardian ad litem, appealed the denial of the
Department’s petition to terminate Father’s parental rights and the order granting visitation to
Grandmother. Although the Department did not file a notice of appeal, it filed a brief in support of
M.I.A.’s appeal.
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ANALYSIS
Father’s Parental Rights
M.I.A. argues that the trial court abused its discretion by refusing to terminate Father’s
parental rights because the evidence was legally and factually sufficient to support termination.
Father responds that the applicable standard of review requires this court to defer to the factfinder’s
determinations if those determinations are reasonable.
Standard of Review
The involuntary termination of a natural parent’s rights implicates fundamental
constitutional rights and “divests the parent and child of all legal rights, privileges, duties, and
powers normally existing between them, except for the child’s right to inherit from the parent.” In
re S.J.R.-Z., 537 S.W.3d 677, 683 (Tex. App.—San Antonio 2017, pet. denied) (internal quotation
marks omitted). “As a result, appellate courts must strictly scrutinize involuntary termination
proceedings in favor of the parent.” Id.
At trial, the Department had the burden to show, by clear and convincing evidence, both
that a statutory ground existed to terminate Father’s parental rights and that termination was in
M.I.A.’s best interest. TEX. FAM. CODE ANN. § 161.001; In re A.H., 414 S.W.3d 802, 806 (Tex.
App.—San Antonio 2013, no pet.). Because the trial court determined the Department did not
satisfy that burden, M.I.A.—who challenges the legal and factual sufficiency of an adverse
finding—must demonstrate that the evidence establishes all vital facts in support of termination as
a matter of law. See In re E.J.R., 503 S.W.3d 536, 541 (Tex. App.—Corpus Christi–Edinburg
2016, pet. denied) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) and In re
A.L.D.H., 373 S.W.3d 187, 192 (Tex. App.—Amarillo 2012, pet. denied)). We will sustain a legal
sufficiency challenge and reverse an adverse finding only if as a matter of law, the petitioner’s
evidence conclusively establishes the “contrary proposition” to the adverse finding. See In re
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E.J.R., 503 S.W.3d at 541. In other words, M.I.A. must conclusively establish that any reasonable
trier of fact would have unavoidably formed a firm belief that Father had committed an act listed
in section 161.001 and that termination was in the best interest of the child. See id. 2
Normally, when an appellant attacks the factual sufficiency of the evidence supporting the
factfinder’s resolution of an issue on which he had the burden of proof at trial, he must show that
the finding was against the great weight and preponderance of the evidence. Dow Chem., 46
S.W.3d at 241. However, our sister courts of appeals have held that this standard is not adequate
in an appeal from the denial of a petition to terminate parental rights, where the burden of proof at
trial was by clear and convincing evidence. In re A.S., No. 11-14-00154-CV, 2015 WL 582013, at
*2 (Tex. App.—Eastland Feb. 5, 2015, no pet.); Burns v. Burns, 434 S.W.3d 223, 227–28 (Tex.
App.—Houston [1st Dist.] 2014, no pet.); In re A.L.D.H., 373 S.W.3d at 192–93. Under those
circumstances, we must review the entire record and “determine whether the trial court’s failure
to form a firm conviction or belief that a parent’s rights must be terminated is contrary to the
overwhelming weight of the evidence and clearly wrong.” Burns, 434 S.W.3d at 227. In
conducting this review, we may not reweigh the evidence or judge the credibility of the witnesses,
and we must defer to the trial court’s credibility determinations so long as they are not
unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). “‘We examine the record in this case
in light of the high evidentiary burden that [M.I.A.] bore and our required appellate deference to
the trial court’s decision that the evidence did not meet it.’” In re E.J.R., 503 S.W.3d at 542
(quoting Burns, 434 S.W.3d at 227).
2
The Department adopted M.I.A.’s brief on these points.
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Applicable Law
The trial court did not make any findings about whether Father had committed acts that
constituted statutory grounds for termination. TEX. FAM. CODE § 161.001. Instead, it found only
that terminating Father’s parental rights was not in M.I.A.’s best interest. See id. Because that issue
is dispositive, we do not address M.I.A.’s arguments regarding statutory grounds for termination.
TEX. R. APP. P. 47.1.
In deciding whether to terminate a parent-child relationship, there is a strong presumption
that the child’s best interest is served by maintaining the relationship between a child and the
natural parent, and the Department has the burden to rebut that presumption. See, e.g., In re R.S.-
T., 522 S.W.3d 92, 97 (Tex. App.—San Antonio 2017, no pet.). A best interest finding does not
require proof of any particular factors. In re G.C.D., No. 04-14-00769-CV, 2015 WL 1938435, at
*5 (Tex. App.—San Antonio Apr. 29, 2015, no pet.). However, courts may apply the non-
exhaustive list of factors the Supreme Court promulgated in Holley v. Adams. See id. Those factors
include: (1) the desires of the child; (2) the emotional and physical needs of the child now and in
the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental
abilities of the individuals seeking custody; (5) the programs available to assist those individuals
to promote the best interest of the child; (6) the plans for the child by these individuals or the
agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or
omissions of the parent that may indicate the existing parent-child relationship is not a proper one;
and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976). 3
3
In addition to the Holley factors, courts should consider factors regarding whether a parent is willing and able to
provide a child with a safe environment. TEX. FAM. CODE ANN. § 263.307. This is because promptly placing a child
in a safe environment is presumed to be in a child’s best interest. Id. However, because M.I.A. relies solely on the
Holley factors for his best interest arguments, we will limit our discussion to the Holley factors.
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Legal Sufficiency
To prevail on his legal sufficiency challenge, M.I.A. must show that any of the evidence
establishes, as a matter of law, all vital facts in support of termination. See In re E.J.R., 503 S.W.3d
at 541. To answer this question, we will consider whether any of the evidence the parties presented
on the Holley factors supports the trial court’s finding. See id.; Holley, 544 S.W.2d at 371–72.
The desires of the child
M.I.A., who was three years old at the time of trial, was too young to make his desires
known. In re A.C., 394 S.W.3d 633, 643 (Tex. App.—Houston [1st Dist.] 2012, no pet.). “‘The
young age of the child render[s] consideration of the child’s desires neutral.’” Id. This factor
therefore does not weigh either for or against the trial court’s finding. See id.
The emotional and physical needs of the child, now and in the future
Several witnesses testified that M.I.A. has severe behavioral issues, and his current foster
father, David, testified that M.I.A “has a ton of anger.” Father testified that he believes he can help
M.I.A. work through these issues. He stated that when he heard David describe M.I.A.’s tantrums,
he knew “exactly what’s going on with him” because “[he] was a child much like [M.I.A.].” Father
explained that he believes M.I.A. “just needs some full one-on-one attention, and that’s something
I can give him.” Father also testified that “if that doesn’t help, then I would ask to see if I can take
him to go get a little evaluation. Sit down with him. Get him some counseling.”
The emotional and physical danger to the child now and in the future
It is undisputed that Father is currently incarcerated. However, “[t]he fact that a parent is
incarcerated, standing alone, does not constitute engaging in conduct that endangered a child’s
physical or emotional well-being.” Walker v. Dep’t of Family & Protective Servs., 251 S.W.3d
563, 565 (Tex. App.—Houston [1st Dist.] 2006, no pet.).
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At the time of trial, Father was enrolled in a nine-month, “intensive” mentoring program
that teaches anger management, communication, and coping skills. He also completed a cognitive
intervention program, which he described as “gathering information and insight and thought
patterns and how to make better choices and what consequences are.” While there is some evidence
that Father was arrested for assaultive offenses in the past, there is no evidence that he was
convicted of those specific charges, and it is undisputed that he did not physically abuse Mother
or M.I.A. There is also no evidence that Father uses illicit drugs.
The parental abilities of the individuals seeking custody
Father has successfully raised four step-children with a previous partner, and he has taken
a two-hour parenting class offered by the jail where he is currently incarcerated. Mother testified
that although Father had never met M.I.A., she believed he could be a good father to the child.
Both she and Father testified that before M.I.A. was conceived, Father helped Mother provide for
her two older children, checked in with her to see if the children needed anything, and did “as
much as he [could] for” them. She also testified that her own decisions, not Father’s, kept him
from doing the same for M.I.A. and that Father consistently expressed a desire to be involved in
M.I.A.’s life.
The programs available to assist these individuals to promote the best interest of the child
Father’s pre-trial service plan explains that he “has knowledge of housing, SNAP, TANF,
San Antonio Food Bank, and by calling 2-1-1 on his phone he can access this, he will be given all
available information once contact is made.” M.I.A.’s caseworker also acknowledged that Father
has taken a parenting class during his incarceration, albeit of shorter duration than the Department
would have approved as part of Father’s service plan. Additionally, as noted above, Father testified
that he was taking classes in anger management, communication, and coping skills, and that he
had successfully completed a cognitive intervention program. Finally, while one of the
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Department’s witnesses speculated that the children’s current placement might be “jeopardize[d]”
if Father’s rights were not terminated, the Department did not present any evidence to that effect.
See In re K.N.J., No. 04-18-00826-CV, 2019 WL 2784765, at *10 (Tex. App.—San Antonio July
3, 2019, no pet.) (holding that Department’s failure to present evidence of cessation of children’s
current services weighed against termination). Other than the caseworker’s speculation, there is no
evidence that the trial court’s refusal to terminate Father’s parental rights will interfere with the
services M.I.A. is currently receiving from the Department. See In re A.H., 414 S.W.3d at 807
(caseworker’s conclusory testimony, “even if uncontradicted,” was less than a scintilla of
evidence).
The plans for the child by the individuals or the agency seeking custody
Father testified that both he and his family—particularly Grandmother—can give M.I.A.
“full one-on-one attention.” He also testified that he plans to “[g]et [M.I.A.] some counseling” if
the attention he receives from Father and Grandmother is not sufficient to address M.I.A.’s special
needs. Finally, he testified that if he received custody of M.I.A., he would maintain contact
between M.I.A. and his siblings.
The stability of the home or proposed placement
Father testified that when he is released from jail, he plans to live “either in southwest
Houston or at [his] mother’s house.” He also testified that he has a steady job waiting for him when
he is released. The Department did not present any evidence that Father’s post-jail home or
employment situation will be unstable.
The acts or omissions of the parent which may indicate that the existing parent-child relationship
is not a proper one, and any excuse for the acts or omissions of the parent
The Department’s allegations at trial, and M.I.A.’s arguments on appeal, turn primarily on
the undisputed fact that Father has never met M.I.A. However, both Mother and Father testified
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that this lack of contact resulted from Mother’s decisions, not Father’s. The trial court also heard
evidence that Mother at least partly made those decisions because she was afraid of her then-
partner, Marcos, with whom she had a tumultuous and sometimes violent relationship. Based on
that evidence, the trial court could have reasonably inferred that any attempt by Father to see or
support M.I.A. during Mother’s relationship with Marcos may have put Mother and the children
in danger. See In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 81 (Tex. App.—San Antonio
2011, pet. denied) (in a legal sufficiency review, we “indulge every reasonable inference that
would support the factfinder’s finding”).
The Department and M.I.A. also contend that Father’s criminal history supports
termination. Father testified, however, that several of the incidents the Department relied on at trial
resulted in arrests, but not convictions. He testified that his current incarceration resulted from
being pulled over while he was with a companion who had a firearm that he did not know about.
He also testified that he has been trying to turn his life around since receiving confirmation that
M.I.A. is his son, and that he has been voluntarily participating in programs that will help him
better himself.
Conclusion
“The law requires clear and convincing evidence to sever the relationship between a parent
and child and due process demands that the State document a sufficient measure of evidence in the
record to support that outcome.” In re J.E.M.M., 532 S.W.3d 874, 891 (Tex. App.—Houston [14th
Dist.] 2017, no pet.). As factfinder, the trial court had the sole authority to judge the credibility of
the witnesses and to decide how much weight to give their testimony. See Alonzo v. Alvarez, 409
S.W.3d 754, 757 (Tex. App.—San Antonio 2013, pet. denied). Based on our review of the record,
and applying proper deference to the trial court’s findings and credibility determinations, we
believe a reasonable factfinder could conclude that the evidence described above weighs against
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terminating Father’s parental rights on seven of the eight Holley factors. See In re E.J.R., 503
S.W.3d at 541. We therefore overrule M.I.A.’s legal sufficiency challenge. See Burns, 434 S.W.3d
at 230.
Factual Sufficiency
In reviewing M.I.A.’s factual sufficiency complaint, we consider the entire record,
including any evidence that does not support the trial court’s finding. See Burns, 434 S.W.3d at
227. We may not overturn the trial court’s finding unless it is so contrary to the overwhelming
weight of the evidence as to be clearly wrong. Id.
The desires of the child
Although M.I.A. is too young to make his desires known, there is no evidence that M.I.A.
and Father have any emotional bond with each other. There is ample evidence, moreover, that
M.I.A. has bonded with his current foster family and his biological siblings, with whom he lived
at the time of trial. M.I.A. contends that “his behavior has improved while in foster care . . . and
that is as clear of an expression of preferences as a three-year-old can make.” However, David
testified that M.I.A.’s behavior problems “seem to be getting worse.”
We must view this factor “[i]n light of the high evidentiary burden that [the Department]
bore and our required appellate deference to the trial court’s decision that the evidence did not
meet it.” Burns, 434 S.W.3d at 228. Under that standard of review, we do not believe the trial
court’s failure to form a firm conviction or belief that this factor required termination was so
contrary to the overwhelming weight of the evidence as to be clearly wrong. See id. at 227.
The emotional and physical needs of the child, now and in the future
The CASA volunteer, the CPS caseworker, and M.I.A.’s current and former foster parents
all testified that M.I.A. has frequent, severe tantrums, is destructive when he is angry, and
sometimes reacts violently when he is asked to do something he does not want to do. M.I.A. argues
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that as a result of these issues, M.I.A. needs permanency “[a]bove all,” that he has that permanency
with his current foster family, and that the trial court’s refusal to terminate Father’s parental rights
threatens that permanency. As noted above, however, Father testified that he believes he is able to
address M.I.A.’s behavioral issues. He also testified that he knows he will need to take steps to get
to know his son.
David testified that he and his wife want to adopt all four children but that they are not
willing to let M.I.A. have contact with his biological family if they adopt him. The CPS caseworker
testified that because David and his wife want to adopt all the children, allowing Father to retain
his parental rights to M.I.A. could possibly “jeopardize the placement of the other three children.”
Based on this testimony, M.I.A. contends that “[b]y giving [Father] more time to complete
services, the court effectively guaranteed that M.I.A. would be stuck in foster care for years to
come, being moved from one facility to another, and being separated from his siblings.” However,
the Department did not present any evidence that David and his wife would refuse to continue
caring for M.I.A. or the other children if the trial court denied the petition to terminate Father’s
rights.
In his brief, M.I.A. characterizes Father’s jail sentence as lasting “the next two years” and
implies that sentence will force “M.I.A. to remain in foster care and be moved from foster home
to foster home for the rest of his life.” However, Father testified he is due to be released on May
23, 2020. This means that on both January 28, 2019, the day the trial began, and on June 6, 2019,
when M.I.A. filed his brief in this appeal, Father had less than two years remaining in his sentence.
The Department did not present any evidence at trial that the length of Father’s sentence or the
trial court’s refusal to terminate his rights would keep M.I.A. in foster care “for the rest of his life.”
The trial court, acting as factfinder, heard this evidence and found it did not satisfy the
Department’s high burden of proof. See Burns, 434 S.W.3d at 227–28. Under the exacting standard
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of appellate review that we must apply here, we do not believe that this finding is so contrary to
the overwhelming weight of the evidence as to be clearly wrong. See id.
The emotional and physical danger to the child now and in the future, the acts or omissions of the
parent which may indicate that the existing parent-child relationship is not a proper one, and any
excuse for the acts or omissions of the parent
There is some evidence that Father was arrested in 1997 for aggravated assault causing
serious bodily injury, and again in 2009 for assault and bodily injury of a family member.
However, there is no evidence of the details of those arrests, nor is there any evidence that Father
was convicted of those charges. While Father testified that he had previously been convicted of a
felony, there is no evidence about the nature of the offense that led to that conviction. Additionally,
it is undisputed that while several of Mother’s past romantic partners abused her, Father did not.
There is no evidence that Father uses illicit drugs or that the home he plans to return to when he is
released from jail is unsafe for a child. Finally, the Department did not contest Father’s testimony
that he has a steady job that he will return to after he is released from jail.
With regard to Father’s criminal history and his lack of a current relationship with M.I.A.,
the trial court heard evidence explaining both issues. Both Mother and Father testified that Father’s
lack of contact with M.I.A. resulted from Mother’s choices and decisions, not Father’s.
Additionally, when he was asked about his criminal background, Father testified:
I went wrong with choices that I made from where I was growing up from outside
choices I made from lack of—just thinking I could just do what I wanted, you know.
Much like as [M.I.A.], you know, throw a tantrum and do what he wanted. That’s
how I know exactly how he is and I will show him how to control—how to control
it.
The factfinder, as the sole judge of the weight and credibility of the evidence, credited Father’s
explanations regarding these issues. See In re F.M., 536 S.W.3d 843, 844 (Tex. App.—San
Antonio 2017, no pet.). Under the standard of review by which we are bound, we cannot say that
decision was unreasonable. Burns, 434 S.W.3d at 227–28. As a result, we do not believe the trial
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court’s failure to form a firm conviction or belief that Father’s rights must be terminated is so
contrary to the overwhelming weight of the evidence as to be clearly wrong. Id.
The plans for the child by the individuals or the agency seeking custody
The Department’s plans for M.I.A. consisted of adoption by M.I.A.’s current foster family.
The Department presented evidence that M.I.A.’s current foster parents had raised five biological
children, including three children with special needs. It also presented evidence that one of those
children, like M.I.A., had “major behavioral problems growing up” but eventually grew into a
successful adult. Finally, the Department presented evidence that M.I.A. is bonded to his foster
family and that it is in his best interest to remain in the same placement as his siblings. However,
David testified that M.I.A.’s behavior problems seem to be worsening in his current placement.
M.I.A.’s brief contends that Father “has no specific plans for his son.” While the evidence
in favor of Father’s position on this issue is limited, we believe a reasonable factfinder could credit
it in favor of the trial court’s finding. See Burns, 434 S.W.3d at 227–28. As a result, we hold that
the trial court’s failure to form a firm conviction or belief that this factor required termination of
Father’s rights was not so contrary to the overwhelming weight of the evidence as to be clearly
wrong. See id.
Conclusion
Based on our review of the entire record, and applying proper deference to the trial court’s
findings and credibility determinations, we cannot say that the trial court’s failure to form a firm
conviction or belief that termination of Father’s rights was in the best interests of M.I.A. is so
contrary to the overwhelming weight of the evidence as to be clearly wrong. See id. For that reason,
we overrule M.I.A.’s factual sufficiency challenge. See id. at 230.
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Grandparent Visitation
M.I.A. also complains that the trial court abused its discretion by sua sponte awarding
visitation rights to Grandmother because there was no evidence to support an award of grandparent
access under section 153.433 of the Family Code. Father responds that section 153.433 does not
apply here. According to Father, because the trial court denied the petition to terminate his parental
rights, it was required to render any order it believed to be in the child’s best interest.
Standard of Review
In family law cases, we review a trial court’s orders regarding visitation for abuse of
discretion. In re T.K.D.-H., 439 S.W.3d 473, 481 (Tex. App.—San Antonio 2014, no pet.). “A trial
court abuses its discretion, so as to require reversal, when it acts arbitrarily or unreasonably 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.). 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.).
Applicable Law
Section 153.433 provides that in a suit affecting the parent-child relationship (SAPCR), a
trial court “may order reasonable possession of or access to a grandchild by a grandparent if” a
grandparent requesting possession or access makes certain showings. TEX. FAM. CODE ANN.
§ 153.433. In contrast, section 161.205 provides that when a trial court declines to terminate a
parent’s rights in a SAPCR brought by a governmental entity, the court “shall render any order in
the best interest of the child.” TEX. FAM. CODE ANN. § 161.205.
Analysis
The proper interaction, if any, between sections 153.433 and 161.205 appears to be a
question of first impression. Because this is a question of statutory interpretation, we review it de
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novo. In re C.Y.K.S., 549 S.W.3d 588, 591 (Tex. 2018). In construing a statute, we determine the
Legislature’s intent by examining the plain language used. Grubbs v. ATW Invs., Inc., 544 S.W.3d
421, 423 (Tex. App.—San Antonio 2017, no pet.). If the statute’s language is unambiguous, we
apply it according to its plain meaning. Id.
Neither M.I.A. nor the Department have addressed the applicability of section 161.205 to
this dispute. Instead, they argue that section 153.433 controls here, and that the lack of pleadings
and evidence to support a ruling under that statute is fatal to the trial court’s order. This court has
recognized, however, that the Legislature intended for section 153.433 to “limit a court’s
jurisdiction over non-parental intrusion into the parent-child relationship” in order to safeguard
parents’ constitutionally protected interests in the care, custody, and control of their children. In
re Pensom, 126 S.W.3d 251, 255 (Tex. App.—San Antonio 2003, orig. proceeding); see also TEX.
FAM. CODE § 153.433(a)(2) (grandparent requesting possession or access under section 153.433
must overcome “the presumption that a parent acts in the best interest of the parent’s child”). The
statute “is narrowly tailored so that a parent’s personal affairs are not needlessly intruded upon or
interrupted by the trauma of litigation by any third party seeking access.” Pensom, 126 S.W.3d at
255 (emphasis added).
A proceeding like this one, where the Department sought to terminate the parent-child
relationship altogether, represents the pinnacle of such an intrusion. See Santosky v. Kramer, 455
U.S. 745, 758 (1982) (“When the State initiates a parental rights termination proceeding, it seeks
not merely to infringe that fundamental liberty interest, but to end it. If the State prevails, it will
have worked a unique kind of deprivation.”) (internal quotation marks omitted); In re N.G., 577
S.W.3d 230, 236 (Tex. 2019). We do not believe the Legislature intended for a statute that protects
against intrusion into a parent’s personal affairs to be wielded as a post-judgment sword by a non-
parent who is challenging a trial court’s refusal to terminate parental rights. See Pensom, 126
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S.W.3d at 255. This is especially true where, as here, the only natural parent whose rights have not
been terminated has not raised any complaints about the trial court’s judgment. For that reason,
we hold that section 153.433 does not apply to this case.
Father argues that section 161.205 requires us to affirm the trial court’s order, and we agree.
As written, section 161.205 confers broad discretion on a trial court that has decided not to
terminate a parent’s rights in a SAPCR initiated by the government. TEX. FAM. CODE § 161.205;
cf. In re Geomet Recycling LLC, 578 S.W.3d 82, 91 n.2 (Tex. 2019) (recognizing that a rule
allowing a court to issue “any order” grants “broad authority”). It authorizes—and in fact
requires—the court to render any order it determines is in the child’s best interest. TEX. FAM. CODE
§ 161.205. And unlike section 153.433, section 161.205 does not contain any specific pleading or
proof requirements. Compare id., with TEX. FAM. CODE § 153.433. The Waco Court of Appeals
recently cited section 161.205 to affirm a trial court’s order that “grant[ed] relief on unpleaded
theories, on a theory that was not tried by consent,” even though there was “no express statutory
authority” for the order in question. In re R.W.K., No. 10-16-00393-CV, 10-16-00396-CV, 2017
WL 19574444, at *2 (Tex. App.—Waco May 10, 2017, no pet.). Similarly, this court has
repeatedly relied on section 161.205 to hold that a trial court did not abuse its discretion by
appointing nonparties as managing conservators of a child, even when those nonparties did not
affirmatively petition for conservatorship. See In re A.N.S., No. 04-17-00374-CV, 2017 WL
4518280, at *1–2 (Tex. App.—San Antonio Oct. 11, 2017, no pet.); In re V.H., No. 04-16-00054-
CV, 2016 WL 3797237, at *3 (Tex. App.—San Antonio July 13, 2016, no pet.); In re A.D., 480
S.W.3d 643, 645–46 (Tex. App.—San Antonio 2015, pet. denied). We agree with Father that it
makes little sense to conclude that the Legislature intended for section 161.205 to give the trial
court authority to appoint a nonparty managing conservator, but not to order visitation for a
nonparty. See, e.g., In re A.N.S., 2017 WL 4518280 at *1.
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The evidence shows that although Father is currently incarcerated and has never met his
son, he comes from a large, close-knit family. Although the trial court refused to terminate Father’s
parental rights and awarded him supervised visitation with M.I.A., its order specifies that those
visits will not begin until after Father is released from jail. Under these circumstances, we believe
that the trial court did not behave arbitrarily or unreasonably by concluding that therapist-
supervised visits between M.I.A. and his paternal grandmother before Father is released from jail
would serve as an appropriate introduction between M.I.A. and his natural father’s family and
would therefore be in M.I.A.’s best interest. TEX. FAM. CODE § 161.205; see Alvarez, 2015 WL
1938700 at *1. For that reason, we overrule M.I.A.’s challenge to the portion of the trial court’s
judgment that grants visitation rights to Grandmother.
CONCLUSION
We affirm the trial court’s order.
Beth Watkins, Justice
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