in the Interest of M.L.R.S., a Child ( 2022 )

Affirmed and Memorandum Opinion filed June 16, 2022.
In The
Fourteenth Court of Appeals
NO. 14-20-00584-CV
IN THE INTEREST OF M.L.R.S., A CHILD
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2019-70099
MEMORANDUM OPINION
Appellee A. M. (“Great-Grandmother”) filed a petition requesting that she
be appointed sole managing conservator of her great-granddaughter, Mary.1 After
a bench trial, the trial court signed a July 13, 2000 order granting Great-
Grandmother’s requested relief and appointing Mary’s mother, appellant A. N.
(“Mother”), as Mary’s possessory conservator. Mother filed this appeal.2 For the
1
We refer to the child involved in this case using a pseudonym. See Tex. Fam. Code
Ann. § 109.002(d).
2
Mother filed a compliant appellant’s brief on December 12, 2021, after this court on
October 5, 2021 dismissed Mother’s appeal for want of prosecution. This court granted a
rehearing and reinstated Mother’s appeal.
reasons below, we affirm.
BACKGROUND
In September 2019, Great-Grandmother filed a petition requesting
immediate possession of or access to Mary. See Tex. Fam. Code Ann. § 153.432.
Great-Grandmother filed an amended petition requesting that she be named Mary’s
sole managing conservator. See id. § 153.005.
In June 2020, a two-day bench trial was held via a Zoom videoconference.
Following the conclusion of trial, the trial court signed an “Order in Suit Affecting
the Parent-Child Relationship” and appointed Great-Grandmother as Mary’s sole
managing conservator. In its order, the trial court also stated that “credible
evidence was presented to establish that [Mother] has engaged in a history or
pattern of past or present history of family violence directed against” Mary. The
trial court appointed Mother as Mary’s possessory conservator.
The trial court issued findings of fact and conclusions of law. Mother timely
appealed.
ANALYSIS
Mother raises four issues on appeal which, liberally read, appear to assert
two main arguments: (1) Great-Grandmother lacked standing to pursue her suit,3
and (2) the trial court erred by appointing Great-Grandmother as Mary’s sole
managing conservator. The Office of the Attorney General of Texas did not file a
3
We note that Mother asserts this argument by challenging the trial court’s denial of her
motion to dismiss Great-Grandmother’s petition. Mother’s motion to dismiss is not included in
the appellate record. However, because standing is a threshold issue, we may address it for the
first time on appeal. See In re Vogel, 261 S.W.3d 917, 920-21 (Tex. App.—Houston [14th Dist.]
2008, orig. proceeding); see also In re K.S., 492 S.W.3d 419, 424 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied) (examining the appellant’s standing arguments even though the
appellant’s motion to dismiss was not included in appellate record).
2
responsive appellee’s brief. We address Mother’s arguments below.
I. Standing
A. Standard of Review and Governing Law
Because standing is a component of subject-matter jurisdiction, we must
determine whether it exists in order to determine our authority to decide the merits
of the parties’ claims. In re H.S., 550 S.W.3d 151, 155 (Tex. 2018). The party
asserting standing bears the burden of alleging facts sufficient to demonstrate the
court’s jurisdiction. In re R.I., 610 S.W.3d 581, 586 (Tex. App.—Tyler 2020, no
pet.). Issues of standing are reviewed de novo on appeal. Id.Texas confers standing to bring a suit affecting the parent-child relationship
(“SAPCR”) to individuals who meet the statutory framework set out in the Texas
Family Code. In re K.S., 492 S.W.3d 419, 423 (Tex. App.—Houston [14th Dist.]
2016, pet. denied). A party seeking the conservatorship of a child must have
standing to seek such relief. Madore v. Strader, No. 14-20-00147-CV, 2021 WL
4617936, at *4 (Tex. App.—Houston [14th Dist.] Oct. 7, 2021, no pet.) (mem.
op.).
A grandparent related by blood can meet the standing requirements to bring
a SAPCR by providing “satisfactory proof” to the trial court that the “order
requested is necessary because the child’s present circumstances would
significantly impair the child’s physical health or emotional development.” Tex.
Fam. Code Ann. § 102.004(a)(1). “Satisfactory proof” is based on a
preponderance-of-evidence standard applied to the facts existing when the suit was
filed. In re K.D.H., 426 S.W.3d 879, 883-84 (Tex. App.—Houston [14th Dist.]
2014, no pet.).
When a grandparent claims standing under section 102.004(a)(1), the
3
grandparent need only file a petition and allege the order requested is necessary
because the child’s present circumstances would significantly impair the child’s
physical or emotional development. See id. at 884. “In such a case, pleading a
proper basis for standing is sufficient to show standing, unless a party challenges
standing and submits evidence showing the non-existence of a fact necessary for
standing.” Id.B. Application
Here, in its findings of fact and conclusions of law, the trial court found that
Great-Grandmother had standing to pursue her suit under Texas Family Code
sections 102.003(a)(9) and 102.004(a)(1). See Tex. Fam. Code Ann.
§§ 102.003(a)(9), 102.004(a)(1). Because we conclude Great-Grandmother made
the showing necessary to establish standing under section 102.004(a)(1), we need
not address whether she also has standing under section 102.003(a)(9). See, e.g.,
In re G.B., No. 05-21-00463-CV, 2021 WL 4071152, at *2 n.4 (Tex. App.—Dallas
Sept. 7, 2021, no pet.) (mem. op.).
In her amended petition, Great-Grandmother requested to be named Mary’s
sole managing conservator and asserted the appointment was “necessary because
[Mary’s] present circumstances would significantly impair [Mary’s] physical
health or emotional development.” To support this allegation, Great-Grandmother
attested in her affidavit that:
• In July 2019, she was sent pictures of Mary showing bruises on
Mary’s face and body. Great-Grandmother said she was informed
Mother “whipped” Mary.
• Mother was arrested for felony injury to a child in connection with the
injuries photographed on Mary. Mother’s court date was scheduled
for September 2019.
• Mother has repeatedly “beaten and slapped” Mary since Mary was
4
two years old.
• Mother would call Mary expletives.
• Mother would deny Mary medical attention.
• Mother has a history of “extremely violent” behavior.
• Mother previously hit her mother (“Grandmother”) with an
automobile.
Great-Grandmother also filed with her petition an emergency protective order
signed August 21, 2019, which forbade Mother from contacting or communicating
with Mary.
These attestations find additional support from the testimony heard at the
parties’ bench trial. See In re K.S., 492 S.W.3d at 424 (reviewing the reporter’s
record from the bench trial in considering the appellant’s standing challenge).
Great-Grandmother testified that, in July 2019, she saw a bruise on Mary’s face
that looked like Mary “had gotten hit with a belt across her face.” Great-
Grandmother also recalled seeing bruises on Mary’s neck, back, and thighs. Great-
Grandmother testified that Mother “slap[s]” Mary, tells her “she stinks”, and calls
her expletives.
The evidence admitted during this line of testimony included (1) pictures of
Mary showing bruises on her face, neck, and back; (2) the August 2019 complaint
charging Mother with felony injury to a child; (3) a high bond request issued in
connection with the felony charge stating that Mother “has a history of violence”;
and (4) the August 2019 emergency protective order prohibiting Mother from
contacting or communicating with Mary.
Great-Grandmother’s affidavit and the evidence from the bench trial support
the trial court’s finding that Great-Grandmother had standing under section
102.004(a)(1) to pursue her conservatorship claim. Specifically, the affidavit and
5
evidence provide “satisfactory proof” that the requested conservatorship order was
necessary because Mary’s “present circumstances would significantly impair [her]
physical health or emotional development.” See Tex. Fam. Code Ann.
§ 102.004(a)(1).
Citing Texas Family Code section 153.432, Mother argues that Great-
Grandmother failed to establish that Mother “had denied [Great-Grandmother]
access [to Mary] prior to the filing of the suit for grandparent’s access” as
necessary to establish standing.
Section 153.432 prescribes the showing necessary for a grandparent to
establish standing to seek possession of or access to a child and states:
[T]he person filing the suit must execute and attach an affidavit on
knowledge or belief that contains, along with supporting facts, the
allegation that denial of possession of or access to the child by the
petitioner would significantly impair the child’s physical health or
emotional well-being. The court shall deny the relief sought and
dismiss the suit unless the court determines that the facts stated in the
affidavit, if true, would be sufficient to support the relief authorized
under Section 153.433.
Tex. Fam. Code Ann. § 153.432(c). But section 153.432 applies to a grandparent’s
suit requesting possession of or access to a grandchild — not to a suit seeking a
conservatorship. See id. § 153.432(a) (“A biological or adoptive grandparent may
request possession of or access to a grandchild by filing . . . .”) (emphasis added).
Here, Great-Grandmother’s amended petition included a conservatorship claim, the
standing for which can be maintained according to the standards set by section
102.004. See id. § 102.004(a) (“a grandparent, or another relative of the child
related within the third degree by consanguinity, may file an original suit
requesting managing conservatorship if there is satisfactory proof to the court that
. . . .”) (emphasis added); see also, e.g., In re M.B., No. 09-19-00247-CV, 2019
6
WL 4865197, at *5 (Tex. App.—Beaumont Oct. 3, 2019, no pet.) (mem. op.)
(holding that “section 153.432 of the Texas Family Code does not apply to
Grandfather’s claims” because “Grandfather’s petition includes a conservatorship
claim”); In re C.D.M., No. 11-15-00319-CV, 2016 WL 5853261, at *4 (Tex.
App.—Eastland Oct. 6, 2016, no pet.) (mem. op.) (holding that grandparents were
not required to satisfy section 153.432’s affidavit requirements where they “were
seeking more than just possession and access — they were seeking to be appointed
managing conservators of the child”).
Because Great-Grandmother established standing under Texas Family Code
section 102.004(a)(1), she was not required to satisfy section 153.432’s
requirements to pursue her conservatorship claim. See Tex. Fam. Code Ann.
§ 153.432; see also In re M.B., 2019 WL 4865197, at *5; In re C.D.M., 2016 WL
5853261, at *4. We overrule Mother’s challenge to Great-Grandmother’s
standing.
II. Conservatorship
In her second issue, Mother contends the trial court abused its discretion by
appointing Great-Grandmother as Mary’s sole managing conservator and by
appointing Mother as Mary’s possessory conservator.
A. Standard of Review and Governing Law
A trial court has broad discretion to decide the best interest of the child in
matters involving custody, visitation, and possession. In re Marriage of Harrison,
557 S.W.3d 99, 120 (Tex. App.—Houston [14th Dist.] 2018, pet. denied). We
review a trial court’s conservatorship decision for an abuse of discretion. Id. at
121; see also F.A.B. v. Dep’t of Family & Protective Servs., No. 01-10-00930-CV,
2012 WL 5310024, at *1 (Tex. App.—Houston [1st Dist.] Oct. 25, 2012, no pet.)
7
(mem. op.) (applying an abuse of discretion standard to review the appointment of
a non-parent as child’s sole managing conservator). A trial court abuses its
discretion when its decision is unreasonable, arbitrary, or without reference to
guiding rules or principles. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211
(Tex. 2002).
We make this determination based on a review of the entire record. In re
T.T., 228 S.W.3d 312, 316 (Tex. App.—Houston [14th Dist.] 2007, pet. denied).
In evaluating the trial court’s exercise of discretion, we generally defer to the trial
court’s resolution of underlying facts and credibility determinations, and we do not
substitute our own judgments in its place. In re Vogel, 261 S.W.3d 917, 925 (Tex.
App.—Houston [14th Dist.] 2008, orig. proceeding). The trial court is best
situated to observe and assess witnesses’ demeanor and credibility and “to
understand influences on the family dynamic that cannot be discerned by mere
reference to the record.” Messier v. Messier, 389 S.W.3d 904, 908-09 (Tex.
App.—Houston [14th Dist.] 2012, no pet.).
In this context, challenges to the legal or factual sufficiency of the evidence
are not independent grounds of error but are relevant considerations in assessing
whether the trial court abused its discretion. In re Marriage of Harrison, 557
S.W.3d at 121. “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
R.T.K., 324 S.W.3d 896, 900 (Tex. App.—Houston [14th Dist.] 2010, pet. denied).
There is a strong presumption that the best interest of a child is served if a
natural parent is appointed as the child’s managing conservator. See Tex. Fam.
Code Ann. § 153.131(a); In re K.S., 492 S.W.3d at 426-27. “That presumption is
removed, however, if the trial court makes a finding of a history of family
violence.” Baker v. Baker, 469 S.W.3d 269, 273 (Tex. App.—Houston [14th Dist.]
8
2015, no pet.). Specifically, the trial court may not appoint a parent as a managing
conservator if “credible evidence is presented of a history or pattern of past or
present child neglect, or physical or sexual abuse by one parent directed against . . .
a child”. Tex. Fam. Code Ann. § 153.004(b); In re K.S., 492 S.W.3d at 427.
The Texas Family Code does not define “history,” but a single act of
violence or abuse suffices to show a history of physical abuse. See Baker, 469
S.W.3d at 274. As part of this determination, the trial court also shall consider
whether a protective order was entered against the parent in the two-year period
preceding the filing of suit or during the pendency of the suit. See Tex. Fam. Code
Ann. § 153.004(f); In re C.F., 565 S.W.3d 832, 846 (Tex. App.—Houston [14th
Dist.] 2018, pet. denied).
B. Application
In its findings of fact and conclusions of law, the trial court found that
“[t]here is credible evidence of a history or pattern of past or present child neglect
and physical abuse by [Mother] directed against [Mary].” See Tex. Fam. Code
Ann. § 153.004(b). The record contains evidence sufficient to support this finding.
According to Great-Grandmother’s testimony at the bench trial, Child
Protective Services first became involved with Mary’s care in 2014, when Mary
was one year old. At this time, Great-Grandmother said Mary moved in with her
and stayed with her through 2015. After 2015, Mary “lived with [Mother], but . . .
was mostly staying with” Great-Grandmother. Great-Grandmother said Mary
would stay with her at least six days a week, and that she would take Mary to
school, activities, and doctor’s appointments. Great-Grandmother said Mary
would spend the remainder of the time with Mother.
Great-Grandmother said that, in July 2019, she saw a bruise on Mary’s face
9
that looked like Mary “had gotten hit with a belt across her face.” Great-
Grandmother also recalled seeing bruises on Mary’s neck, back, and thighs. The
following evidence was admitted during this line of testimony: (1) pictures of
Mary showing bruises on her face, neck, and back; (2) the complaint charging
Mother with felony injury to a child; (3) a high bond request issued in connection
with the felony charge stating that Mother “has a history of violence”; and (4) the
emergency protective order prohibiting Mother from contacting or communicating
with Mary.
According to Great-Grandmother, this was not an isolated incident of abuse.
Great-Grandmother testified that Mother also “slap[s]” Mary, tells her “she stinks”,
and calls her expletives.
Also admitted into evidence was an August 2018 complaint charging Mother
with misdemeanor terroristic threat for “threaten[ing] to commit an offense
involving violence, namely assault,” against Mother’s sister. The “Probable
Cause” section of the complaint includes the following statements: (1) Mother
verbally threatened to “beat” her sister; (2) this statement placed Mother’s sister in
fear because “two days prior, [Mother] struck [Grandmother] with a motor
vehicle”; and (3) during this incident, Mother also attempted to strike her sister
with the motor vehicle. In connection with this incident, a protective order was
entered in September 2018 prohibiting Mother from contacting Grandmother. The
protective order also states that Mother was arrested for aggravated assault of a
family member. Admitted into evidence were pictures of Grandmother, which
show her in a hospital bed with a large cast on her leg. According to Great-
Grandmother, these injuries were sustained when Mother hit Grandmother with a
car.
Great-Grandmother testified that this evidence showed Mother had “a
10
pattern and a history of family violence.” Great-Grandmother agreed that it would
be in Mary’s “best interest . . . to be placed in [Great-Grandmother’s] care from
this moment forward.” According to Great-Grandmother, Mary was likely to
“suffer additional injuries if she is left in the care of [Mother].”
Testifying at trial, Mother said she did not cause the injuries to Mary
photographed in July 2019. Mother said she “wasn’t even in the home” when
Mary sustained the photographed injuries. According to Mother, she did give
Mary and Mary’s sister “a whooping that day, [but] they didn’t have no bruises on
them.” Describing this incident further, Mother said she “got a belt, and [] popped
them on their behind, both of them.” Mother agreed that her case for injury to a
child was still pending.
Testifying about the 2018 incident with Grandmother, Mother said she
“bumped” Grandmother with her truck. Mother said Grandmother fell to the
ground after she was hit. Mother agreed that she pled guilty to assault in
connection with the incident.
This evidence, considered together, is sufficient to support the trial court’s
finding that there was a history or pattern of past or present child neglect and
physical abuse by Mother directed against Mary. See Tex. Fam. Code Ann.
§ 153.004(b). This finding prevented the trial court from appointing Mother as
Mary’s managing conservator. See id.; In re K.S., 492 S.W.3d at 427.
The evidence also shows that Great-Grandmother has been primarily
responsible for Mary since Mary was removed from Mother’s home when she was
one year old. This evidence supports the finding that appointing Great-
Grandmother as Mary’s sole managing conservator was in Mary’s best interest.
Therefore, the trial court did not abuse its discretion by appointing Great-
Grandmother as Mary’s sole managing conservator and by appointing Mother as
11
Mary’s possessory conservator.
CONCLUSION
We affirm the trial court’s July 13, 2020 “Order in Suit Affecting the Parent-
Child Relationship.”
/s/ Meagan Hassan
Justice
Panel consists of Justices Spain, Hassan, and Poissant.
12