in the Interest of A.J.H., a Child ( 2020 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-19-00327-CV
IN THE INTEREST OF A.J.H., A CHILD
On Appeal from the 84th District Court
Hansford County, Texas
Trial Court No. CV05522, Honorable Curt Brancheau, Presiding
March 11, 2020
MEMORANDUM OPINION
Before QUINN, C.J., and PIRTLE and DOSS, JJ.
Appellant, B.H., appeals the trial court’s order appointing B.H. as possessory
conservator of A.J.H., his son, and L.H./C.H., A.J.H.’s paternal grandparents, as A.J.H.’s
joint managing conservator1 with the rights and duties set forth in section 153.371.2 In
1
To protect the privacy of the parties, we refer to them by their initials. See TEX. FAM. CODE ANN.
§109.002(d) (West Supp. 2019). See also TEX. R. APP. P. 9.8(b). Throughout the remainder of this
memorandum opinion, we will refer to the provisions of the Texas Family Code as “section ____” or “§____.”
2 The Texas Department of Family and Protective Services (Department) filed termination
proceedings against A.J.H.’s father and mother. A.J.H.’s grandparents intervened seeking an appointment
as A.J.H.’s joint managing conservator. See Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App, —
Houston [1st Dist.] 2007, no pet.). Although the parental rights of A.J.H.’s mother were terminated, she did
not appeal.
presenting this appeal, appointed counsel has filed an Anders3 brief in support of his
motion to withdraw. We affirm the trial court’s order and defer ruling on counsel’s motion
to withdraw.
Background
After receiving a 911 call from A.J.H.,4 the police contacted the Department when
they found B.H. unconscious on the ground and lying in his own vomit. B.H.’s
unconscious state was induced by a combination of marijuana, methamphetamine,
amphetamine, and excessive alcohol consumption. The Department initiated an
investigation and ultimately removed A.J.H. from B.H.’s care after finding that A.J.H. was
in immediate danger to his physical health or safety and a victim of neglect. B.H. had two
prior intakes received by the Department due, in part, to drug and alcohol abuse.5 A.J.H.
was placed with his paternal grandparents.
At the final hearing, the Department’s evidence established that B.H. had an
extensive history of drug and alcohol dependency, coupled with multiple drug-related
arrests and periods of unemployment. These circumstances required A.J.H. to stay with
his grandparents for months at a time. During the proceedings below, B.H. tested positive
for marijuana and methamphetamine use, refused to cooperate with the Department,
failed to complete any of his services required by the court-ordered service plan, and
3 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In the Interest of
R.M., No. 02-18-00004-CV, 2018 Tex. App. LEXIS 3565, at 21 (Tex. App.—Fort Worth May 21, 2018, no
pet.). See In re K.M., 98 S.W.3d 774, 776-77 (Tex. App.—Fort Worth 2003, no pet.) (reasoning that Anders
procedures apply in non-criminal appeals where appointment of counsel is mandated by statute).
4 A.J.H. is now a thirteen-year-old male.
5
In one instance, police arrested B.H. for public intoxication and assault while A.J.H. was outside
the home observing B.H.’s behavior.
2
failed to appear for a court-ordered drug screen. B.H. testified that he supported his wife’s
use of marijuana during pregnancy as a mood stabilizer. He also admitted using drugs
outside of A.J.H.’s presence and being under their influence in his presence. He indicated
that his girlfriend, M.D., was the sober influence in his household when he had possession
of A.J.H. During the proceedings, however, she also tested positive for drug use.
A.J.H.’s grandparents, on the other hand, provided him with a stable, drug-free
household. They had a close relationship and A.J.H. bonded with them. His performance
at school and physical health were good. His grandparents arranged for him to receive
counseling for depression and adjustment disorder. Under the circumstances, the
Department’s caseworker recommended that A.J.H. remain with his grandparents and
opined that it would not be in A.J.H.’s best interest if B.H. was appointed as a managing
conservator. After speaking with A.J.H. in chambers, the trial court determined that
appointing either, or both, of A.J.H.’s parents as managing conservator would not be in
A.J.H.’s best interest because the appointment would significantly impair A.J.H.’s physical
health or emotional development. The trial court then appointed B.H. as his possessory
conservator with conditions, and A.J.H.’s paternal grandparents, as his joint managing
conservator.6
Applicable Law
A trial court abuses its discretion if it acts arbitrarily and unreasonably or without
reference to any guiding legal principles. Downer v. Aquamarine Operators, Inc., 701
6 An attachment to the order required, among other things, that B.H. would not have any physical
contact with A.J.H. until after he passed four consecutive hair strand drug screens taken no less than ninety
days apart. If this condition were satisfied, he would be permitted one visitation per month that would be
supervised by a grandparent.
3
S.W.2d 238, 241-42 (Tex. 1985). Therefore, a trial court’s appointment of a non-parent
as sole managing conservator may not be reversed unless it is determined that the
appointment was arbitrary and unreasonable. In the Interest of J.Y., 528 S.W.3d 679,
686 (Tex. App.—Texarkana 2017, no. pet.).
A trial court may abuse its discretion by ruling without supporting evidence. Ford
Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an abuse of discretion does
not occur when the trial court bases its decision on conflicting evidence and some
evidence of substantive and probative character supports its decision. In the Interest of
S.T., 508 S.W.3d 482, 491 (Tex. App.—Fort Worth 2015, no pet.) (citing Unifund CCR
Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009)). In sum, to determine whether an abuse
of discretion had occurred an appellate court reviews the record to determine whether
viewing the evidence in a light most favorable to the trial court’s decision and indulging
every legal presumption in favor of its judgment; In the Interest of J.Y., 528 S.W.3d at
686, the trial court made a reasonable decision in its appointment of a non-parent as sole
managing conservator.
The primary consideration in determining conservatorship is always the best
interest of the child. § 153.002. There is a presumption that it is in the child’s best interest
to have the natural parent appointed as managing conservator; In the Interest of J.Y., 528
S.W.3d at 686, however the presumption may be rebutted by a showing that appointment
of the parent as a managing conservator would not be in the child’s best interest because
“it would significantly impair the child’s physical health or emotional development.”
§ 153.131 (a), (b).
4
Impairment of the child’s physical health or emotional development must be proved
by a preponderance of the evidence showing “specific actions or omissions of the parent
that demonstrate an award of custody would result in physical or emotional harm to the
child.” In the Interest of J.Y., 528 S.W.3d at 686 (citing Lewelling v. Lewelling, 796 S.W.2d
164, 167 (Tex. 1990)). Generally, acts or omissions that constitute significant impairment
include, but are not limited to, physical abuse, severe neglect, abandonment, drug or
alcohol abuse, or immoral behavior by the parent. Id. See also In the Interest of S.T.,
508 S.W.3d at 492 (collected cases cited therein). “Other considerations may include
parental irresponsibility, a history of mental disorders and suicidal thoughts, frequent
moves, bad judgment, child abandonment, and an unstable, disorganized, and chaotic
lifestyle that has put and will continue to put the child at risk.” Id. (collected cases cited
therein).
Anders v. California
In support of his motion to withdraw filed in conjunction with B.H.’s brief, counsel
certifies he has conducted a conscientious examination of the entire record, and in his
opinion, the record reflects no potentially plausible basis to support an appeal. In re
D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). See Anders, 386 U.S. at 744. Counsel has
demonstrated that he has complied with the requirements of Anders by (1) providing a
copy of the brief to B.H. and notifying him of his right to file a pro se response if he desired
to do so. In re D.A.S., 973 S.W.2d at 297. Although given an opportunity, B.H. did not
file a response. Neither did the Department file a response.
5
Analysis
We have independently examined the entire record to determine whether there are
any non-frivolous issues that might support the appeal. See Penson v. Ohio, 488 U.S.
75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503,
511 (Tex. Crim. App. 1991). Based on this record, we conclude the trial court made a
reasonable decision in its appointment of A.J.H.’s paternal grandparents as joint
managing conservator. Specifically, we conclude the trial court’s determination their
appointment is in A.J.H.’s best interest was supported by a preponderance of evidence.
Having reviewed the entire record, we agree with counsel there are no plausible grounds
for appeal.7
Conclusion
We affirm the trial court’s order appointing B.H. as A.J.H.’s possessory conservator
and L.H./C.H., A.J.H.’s paternal grandparents, as his joint managing conservator.
Lawrence M. Doss
Justice
7 We call counsel’s attention to the continuing duty of representation through the exhaustion of
proceedings, which may include filing a petition for review. Counsel has filed a motion to withdraw, on
which we will take no action. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam), cert. denied, 138
S. Ct. 1562, 200 L. Ed. 2d 756 (2018).
6