in the Interest of B.B., a Child ( 2022 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-22-00029-CV
IN THE INTEREST OF B.B., A CHILD
On Appeal from the County Court at Law No. 2
Gregg County, Texas
Trial Court No. 2019-698-CCL2
Before Morriss, C.J., Stevens and van Cleef, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
After Mother admitted that she was using Vicodin, marihuana, and methamphetamine
and that she had slapped her two-year-old son, B.B.,1 while she was under the influence of
methamphetamine, the Department of Family and Protective Services sought to establish a safety
plan that would allow Mother to go to rehabilitation. Mother identified Cherise and Frank
Young as the persons with whom she wanted B.B. to stay while she went to rehabilitation.
When Mother failed to go to the agreed treatment center, and the Department lost contact with
her, the Department confirmed that the Youngs would care for B.B. and removed him from
Mother’s care. About one year later, while this case was pending, Mother gave birth to I.D., who
was also removed from Mother’s care after Mother’s admission to having used
methamphetamine during her pregnancy.2 After a final hearing, the trial court appointed the
Youngs as sole managing conservators of B.B. and I.D. and appointed Mother possessory
conservator of the children.3
In her appeal in this case, Mother complains of the final order appointing her possessory
conservator of B.B. Mother asserts that the evidence is legally and factually insufficient to
support the trial court awarding the Youngs the right to establish the residence of B.B. without
imposing a geographical restriction and that the trial court abused its discretion by excluding the
1
We refer to the minor children by their initials and to their parents by pseudonyms. See TEX. R. APP. P. 9.8.
2
Mother tested positive for methamphetamine three times while pregnant with I.D., who was born on March 31,
2020.
3
Mother was appointed possessory conservator of B.B. in the trial court’s cause number 2019-698-CCL2, which is
on appeal in the instant case. She was appointed possessory conservator of I.D. in the trial court’s cause number
2020-621-CCL2, which is on appeal to this Court in a companion case bearing our cause number 06-22-00030-CV.
The two cases had been consolidated for trial.
2
testimony of Mother’s expert witness. Because we find that (1) there was no abuse of discretion
in omitting a geographical restriction and (2) Mother forfeited her complaint about the exclusion
of her expert’s testimony, we affirm the trial court’s judgment.
(1) There Was No Abuse of Discretion in Omitting a Geographical Restriction
In its final order, the trial court found that the appointment of a parent or both parents as
managing conservator of B.B. would not be in the child’s best interest because the appointment
would significantly impair B.B.’s physical health or emotional development.4 See TEX. FAM.
CODE ANN. § 153.131(a). Instead, the trial court appointed the Youngs as permanent managing
conservators of B.B., with the rights and duties specified in Section 153.371 of the Texas Family
Code. “Unless limited by court order, . . . a nonparent . . . appointed managing conservator of
the child has the following rights and duties: . . . the right to designate the primary residence of
the child.” TEX. FAM. CODE ANN. § 153.371(10). The trial court’s order did not limit the
Youngs’ right to designate B.B.’s primary residence. On appeal, Mother asserts that the
evidence is legally and factually insufficient to support the trial court’s decision not to impose a
geographical restriction on the Youngs’ right to designate B.B.’s primary residence.
We review for an abuse of discretion a trial court’s order regarding conservatorship.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). “A trial court abuses its discretion
when it acts arbitrarily and unreasonably or without reference to any guiding principles.” In re
4
Mother does not challenge this finding. To the extent Mother’s brief could be construed to challenge the trial
court’s failure to appoint her managing conservator of B.B., we find that she has forfeited this issue because her
brief does not contain citations to appropriate legal authority and does not contain a clear and concise argument
applying the facts of this case to such authorities. See TEX. R. APP. P. 38.1(i). “[A] point of error not adequately
supported by either argument or authorities is waived.” In re A.B., 646 S.W.3d 83, 96 (Tex. App.—Texarkana 2022,
pet. denied) (quoting In re N.L.G., No. 06-06-00066-CV, 2006 WL 3626956, at *2 (Tex. App.—Texarkana Dec. 14,
2006, pet. denied) (mem. op.)).
3
Marriage of Christensen, 570 S.W.3d 933, 937 (Tex. App.—Texarkana 2019, no pet.) (citing
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). “In family law
cases, [however,] the abuse of discretion standard of review overlaps with traditional standards
of review.” Id. (quoting In re C.G.L., No. 06-13-00068-CV, 2014 WL 887778, at *3 (Tex.
App.—Texarkana Mar. 6, 2014, no pet.) (mem. op.)). “Thus, ‘legal and factual insufficiency are
not independent grounds of reversible error, but instead are factors relevant to our assessment of
whether the trial court abused its discretion.’” Id. (quoting In re C.G.L., 2014 WL 887778 at *3).
“[A] trial court does not abuse its discretion if there is some evidence of a probative and
substantive character to support its decision.” Id. (citing Bates v. Tesar, 81 S.W.3d 411, 424–25
(Tex. App.—El Paso 2002, no pet.)). “Accordingly, we consider whether the trial court had
sufficient evidence on which to exercise its discretion and whether it erred in exercising that
discretion.” Id. at 937–38 (citing Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas
2005, pet. denied)). In our review, “we recognize that ‘[t]he trial court is in the best position to
observe the demeanor and personalities of the witnesses and can ‘feel’ the forces, powers, and
influences that cannot be discerned by merely reading the record.’” Id. at 937 (quoting Bates, 81
S.W.3d at 424).
Texas courts have consistently held that the trial court is authorized, but not required, to
impose a geographical restriction on a sole managing conservator’s right to designate the
principal residence of the child under her care. See Guion v. Guion, 597 S.W.3d 899, 907–08
(Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing cases supporting this principle); see also
TEX. FAM. CODE ANN. §§ 153.132(1), 153.371(10) (Supp.). “[T]he purpose of imposing a
4
geographic residency restriction is to ensure those who have rights to possession of the child are
able to effectively exercise such rights.” In re S.M.D., 329 S.W.3d 8, 22 (Tex. App.—San
Antonio 2010, pet. dism’d) (citing In re A.S., 298 S.W.3d 834, 836 (Tex. App.—Amarillo 2009,
no pet.)). In the trial court’s determination of issues of conservatorship, possession of, and
access to the child, “[t]he best interest of the child shall always be the primary consideration.”
TEX. FAM. CODE ANN. § 153.002. “The trial court has wide latitude in determining what is in the
best interest of the child.” Christensen, 570 S.W.3d at 938 (citing Gillespie, 644 S.W.2d at 451).
The Texas Supreme Court has noted that, because “[s]uits affecting the parent-child
relationship are intensely fact driven, . . . courts have developed best-interest tests that consider
and balance numerous factors.” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). Because there may
be many relevant factors, courts have rejected formulaic tests when considering whether a
geographic restriction is in the best interest of the child. In re M.M.M., 307 S.W.3d 846, 850
(Tex. App.—Fort Worth 2010, no pet.) (citing Lenz, 79 S.W.3d at 19). Nevertheless, in cases
involving conservatorship, possession, and access, we have been instructed to consider the public
policies set by the Texas Legislature, which include the objectives to:
(1) assure that children will have frequent and continuing contact with parents
who have shown an ability to act in the best interest of the child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child
after the parents have separated or dissolved their marriage.
Lenz, 79 S.W.3d at 14 (citing TEX. FAM. CODE ANN. § 153.001(a)).
5
The court in Lenz also examined some other factors that may be relevant when
considering the best interest of a child when a parent has asked for a modification of a
conservatorship order because of a planned move by the custodial parent. As we have previously
noted,
Those factors include (1) the reasons for and against the move, (2) the education,
health, and leisure opportunities afforded by the move, (3) the accommodation of
the child’s special needs or talents, (4) the effect on extended family relationships,
(5) the effect on visitation and communication with the noncustodial parent,
(6) the noncustodial parent’s ability to relocate, and (7) the child’s age.
Christensen, 570 S.W.3d at 938 (citing Lenz, 79 S.W.3d at 15–16).
Mother argues that the trial court abused its discretion in failing to impose a geographic
restriction because of the following testimony by Cherise Young:
Q. (by Mother’s attorney) Could you tell this Court, if the Judge gave
conservatorship of the boys to you and your husband, do y’all have plans to
relocate?
A. No.
Q. Do you have any objection to a geographic restriction being
imposed in this case?
A. I would, but I don’t plan to move.
....
Q. And could you tell the Court, please, . . . where are y’all’s relatives
from, extended family?
A. Okay. We have his mom in Wisconsin, we have one brother in
Oklahoma, we have one brother in, I believe, Indiana, and one brother in
Pennsylvania.
Q. Has there been any discussion that you and your husband would
like to retire to Wisconsin?
6
A. We had originally talked about doing this before [B.B.] came into
our lives.
Q. Okay. So no current plans to --
A. No.
Q. -- retire to Wisconsin? Okay.
Although Cherise’s testimony disclaimed any current plans to move out of state, Mother
mischaracterizes it as “a proposed move to Wisconsin” and argues that such a move would place
a large burden on Mother’s ability to maintain a relationship with the child and his teachers and
to keep up with his education, that it would inhibit her ability to be involved in the child’s extra-
curricular activities, and that it would sever the child’s relationship with family members in the
area. However, Mother does not cite to any evidence in support of these claims.5
Further, the cited testimony was undisputed. The record also showed that the Youngs
facilitated Mother’s visits with the children and never interfered with her access to the children.
The Youngs were cordial with Mother, welcomed her, and had her come over for holiday visits.
They also assisted Mother in how to engage with B.B., who was diagnosed with autism, when he
would become overstimulated. In addition, they never prevented Mother from attending B.B.’s
therapy sessions.
5
The paucity of evidence regarding this issue at trial is most likely because Mother never requested a geographical
restriction be placed on the Youngs’ right to designate the primary residence of the children before or during the
final hearing. As the Department points out in its brief, Mother also never objected to the absence of a geographical
restriction at either of two post-trial hearings on the trial court’s proposed judgment, or in her motion for a new trial.
The Department contends that, because Mother never asked for a geographical restriction, she has waived any
challenge to its absence. However, because the Youngs intervened in this case and sought to be named the sole
managing conservators and Section 153.371 of the Texas Family Code gave the court the discretion to determine
whether or not to impose a geographical restriction, the issue was before the trial court. In addition, because this
was a civil, nonjury case, Mother’s complaints about the legal or factual insufficiency of the evidence supporting the
trial court’s judgment may be asserted for the first time on appeal. See TEX. R. APP. P. 33.1(d).
7
On this record,6 the trial court could have reasonably determined that the Youngs had no
plans to move out of state and that, based on their history of cooperation with Mother in ensuring
her access to the children, imposing a geographical restriction was not required to ensure
Mother’s access to the children. See In re K.S., No. 13-19-00416-CV, 2021 WL 317656, at *7
(Tex. App.—Corpus Christi Jan. 28, 2021, no pet.) (mem. op.) (finding on a similar record that
there was no evidence to support the trial court’s imposition of a geographic restriction on a sole
managing conservator’s right to designate the primary residence of a child). After reviewing the
entire record, we conclude that substantial evidence supported the trial court’s judgment giving
the Youngs the unrestricted right to designate the primary residence of the children. For that
reason, we find that the trial court did not clearly abuse its discretion by not imposing a
geographical restriction.7 We overrule this issue.
(2) Mother Forfeited Her Complaint About the Exclusion of Her Expert’s Testimony
Mother also complains that the trial court erred in excluding the testimony of her expert
witness. Mother offered the expert to testify regarding how certain over-the-counter medicines
and a prescription medicine that Mother had been taking could result in a drug test giving a false
positive for the presence of methamphetamine. The Department and the Youngs objected to the
expert’s testimony because Mother failed to disclose in her response to the Department’s request
6
Although we have considered the entire record, because this is a memorandum opinion affirming the trial court’s
conservatorship order, we do not exhaustively detail the evidence. See TEX. R. APP. P. 47.4 (“If the issues are
settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the
court’s decision and the basic reasons for it.”); In re A.B., 437 S.W.3d 498, 507 (Tex. 2014) (holding courts of
appeals need not detail the evidence when affirming termination findings).
7
If the Youngs do move out of state or formulate definite plans to do so, Mother could still seek to modify the trial
court’s conservatorship order at that time.
8
for disclosures the substance of the expert’s testimony and opinions and a brief summary of the
bases of his opinions and she failed to provide all documents that were provided to or reviewed
by him. See TEX. R. CIV. P. 192.3(f). After the trial court reviewed Mother’s responses to the
request for disclosures,8 the trial court excluded the testimony because Mother failed to disclose
the substance of his opinions and the bases of those opinions.
“To reverse a judgment based on a claimed error in admitting or excluding evidence, a
party must show that the error probably resulted in an improper judgment.” Interstate
Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (citing TEX. R. APP. P. 61.1); see
TEX. R. APP. P. 44.1(a)(1). “Typically, a successful challenge to a trial court’s evidentiary
rulings requires the complaining party to demonstrate that the judgment turns on the particular
evidence excluded or admitted.” Id. (citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617
(Tex. 2000)).
Although Mother provided an argument in support of her contention that the trial court
erred in excluding the testimony, she wholly failed to demonstrate that the trial court’s judgment
turned on the exclusion of the testimony. Rather, her entire argument regarding harm was that
“had the [expected testimony of (Mother’s) expert regarding drug testing] been allowed, a
different result regarding custody of the child may have been reached by the court.” Absent
from Mother’s brief on this issue was any analysis of what the testimony would have been or
how that testimony would have rebutted the Department’s expert testimony and overcome the
8
Mother’s responses to the request for disclosures are not included in the appellate record.
9
other testimony of Mother’s acts and omissions unrelated to the alleged false-positive drug
results.9 Also absent were any citations to the record in support of the missing harm analysis.
Our appellate rules require an appellant to make “a clear and concise argument for the
contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP. P.
38.1(i). A short, conclusory statement does not satisfy this requirement. Smale v. Williams, 590
S.W.3d 633, 638 (Tex. App.—Texarkana 2019, no pet.); In re Marriage of Hudson, No. 06-18-
00011-CV, 2018 WL 4656288, at *4 (Tex. App.—Texarkana Sept. 28, 2018, no pet.). Further,
“it is not the role of this court to conduct harm analysis absent some cogent argument on
[Mother]’s part.” Yarbrough v. ELC Energy, LLC, No. 12-15-00303-CV, 2017 WL 2351357, at
*11 (Tex. App.—Tyler May 31, 2017, no pet.) (mem. op.). As a result, since Mother has failed
to brief whether the exclusion of the evidence was harmful, she has waived this issue. Id.; see V.
N. G. v. Tex. Dep’t of Family & Protective Servs., No. 03-18-00329-CV, 2018 WL 5023960, at
*3 (Tex. App.—Austin Oct. 17, 2018, no pet.) (mem. op.) (finding inadequate briefing when
brief did not explain legal significance of purported error, conduct any harm analysis, or explain
how alleged error could entitle appellant to reversal or any other relief). We overrule this issue.
9
Mother admitted that drug tests taken on April 30, 2019, May 31, 2019, August 9, 2019, and November 18, 2019,
which showed positive results for methamphetamine, were accurate. She claimed that drug tests taken on February
28, 2020, October 23, 2020, March 22, 2021, April 20, 2021, July 14, 2021, and September 13, 2021, which showed
positive results for methamphetamine and other illegal substantives, were false positives.
10
For the reasons stated, we affirm the trial court’s judgment.
Josh R. Morriss III
Chief Justice
Date Submitted: October 5, 2022
Date Decided: October 6, 2022
11