J. H. v. Texas Department of Family and Protective Services ( 2021 )


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  •        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-21-00162-CV
    J. H., Appellant
    v.
    Texas Department of Family and Protective Services, Appellee
    FROM THE 146TH DISTRICT COURT OF BELL COUNTY
    NO. 315,728-B, THE HONORABLE JACK WELDON JONES, JUDGE PRESIDING
    MEMORANDUM OPINION
    J.H. (Mother) appeals from the trial court’s de novo order appointing the paternal
    grandmother (Grandmother) as the sole managing conservator of J.H.’s two children.1 The trial
    court did not appoint Mother as a managing or possessory conservator. For the following
    reasons, we affirm the trial court’s order.
    BACKGROUND
    In February 2020, the Department of Family and Protective Services filed an
    original petition in a suit affecting the parent-child relationship concerning Mother’s children,
    who were six and five years old, and requested an order for protection in an emergency arising
    from Mother’s conduct including her methamphetamine use. The children were residing with
    1
    We refer to J.H. by her initials or as Mother. See Tex. Fam. Code § 109.002(d); Tex.
    R. App. P. 9.8. The children’s father was properly served in the underlying proceeding but did
    not appear and has not appealed from the trial court’s order. He was not named a managing or
    possessory conservator of the children.
    Grandmother, and the Department became involved when Mother was attempting to take the
    children from Grandmother. According to the Department’s supporting affidavit, Grandmother
    feared for the children’s safety because Mother “[had] been to rehab repeatedly” and “had drugs
    in her apartment and crack pipes,” and Mother’s girlfriend was “known to use drugs.” The trial
    court granted the Department’s request, appointed the Department as the temporary managing
    conservator, and placed the children with Grandmother.
    In May 2020, the Department’s home study on Grandmother was not approved
    because of concerns about Grandmother’s ex-husband who was a registered sex offender, but the
    children remained in Grandmother’s care during the pendency of the case. According to the
    Department’s supporting affidavit, Grandmother and her ex-husband had been divorced for six
    years, he continued to provide financial support and to visit, but he was not left alone with the
    children. During the pendency of the case, the Department’s family services plan for Mother
    required her to attend court hearings, obtain and maintain employment, complete specified
    services, and drug test. Mother, however, tested positive for methamphetamine, inconsistently
    drug tested, did not appear for hearings, had minimal contact with the Department, and did not
    comply with services. She also had one visit with her children that was on August 28, 2020.
    The final hearing before the associate judge was on September 15, 2020. The
    Department requested that Mother not be given a designation, that Grandmother be appointed the
    sole managing conservator of the children with discretion to determine parental visitation, and
    that unsupervised contact between the children and Grandmother’s ex-husband be enjoined. The
    associate judge took judicial notice of the Department’s final report to the Court, the
    Department’s witness was the conservatorship caseworker assigned to the case, and Mother
    testified on her own behalf.
    2
    The caseworker testified that the children had lived with their Grandmother for
    most of their lives and were “doing, extremely, well” in their current placement, that
    Grandmother was “very open and willing to have a normal relationship with [Mother]” and to
    supervise visits, and that Mother had one visit on August 28, but that after that visit, Mother had
    not contacted Grandmother to schedule a visit. As to Mother’s compliance with services, the
    caseworker testified that Mother had completed an OSAR assessment and “recently” started drug
    testing but that she had not drug tested consistently. The caseworker testified that Mother’s
    pattern of missing drug tests or going on separate days from scheduled testing days was
    concerning to the Department “[c]onsidering that we [were] involved due to [Mother’s] heavy
    drug use, such as methamphetamine, and her inconsistencies throughout the case.”               The
    caseworker also testified that Mother had not been “consistent in participating in any services”
    and that she was not successfully discharged from any services.
    In her testimony, Mother admitted that she had made mistakes and had problems
    with methamphetamine in the past, had tested positive for methamphetamine, started services
    late in the case, and was not working. She also agreed that her children were “being taken care
    of” by Grandmother. Mother, however, denied that the children were staying with Grandmother
    prior to the Department’s involvement and testified that she had “scheduled everything” that the
    Department requested and that she was “getting the hang of everything.” Mother testified that
    she “was doing individual counseling in the wrong place,” that she had done two sessions of
    counseling within the week before trial and the psychological evaluation “last month,” that she
    had “only missed one [drug] test,” and that her drug tests “have all been negative.” She further
    explained that she had to quarantine for two weeks because of illness and that she had tried to
    contact Grandmother but “she has not been answering [Mother’s] phone calls.” Mother testified
    3
    that she brought her girlfriend to visit with her children because they were engaged and that if
    she were given more time, she would “do anything and everything” she had to do.
    Following the hearing, the associate judge signed an order appointing
    Grandmother as the sole managing conservator with parental visitation at Grandmother’s
    discretion, enjoining unsupervised contact between the children and Grandmother’s ex-husband,
    and not appointing Mother as a managing or possessory conservator.           Mother requested a
    de novo hearing, and the trial court held the de novo hearing in December 2020. Although she
    was informed of the hearing’s date and time, Mother did not personally appear.
    The witnesses at the de novo hearing were the conservatorship caseworker and the
    children’s guardian ad litem. It was the caseworker’s opinion that Mother had not demonstrated
    an ability to provide a safe, suitable home for her children. The caseworker testified that Mother
    understood what was expected of her but that she missed “probably well over 20” drug tests
    during the pendency of the case and that she was not employed or providing any support to her
    children.   The caseworker testified that the results of Mother’s psychological examination
    “indicated that she was—had substance abuse disorder, as well as depression and bipolar
    disorder, and that she should be referred to inpatient services for her drug disorder, as well as
    seek individual counseling and possibly family therapy with her children” but that Mother did
    not receive any of these services. Mother was referred to an inpatient service but “she did not
    seek out that service.” The caseworker set up a counseling service for Mother in March but
    Mother did not call until August to set up an appointment and then she “did not show up for the
    appointment that [she] scheduled for herself.” The caseworker also had been unable to visit
    4
    Mother’s home and had not had contact with Mother.2 Concerning the children’s placement, the
    caseworker testified that Grandmother was meeting the children’s emotional and physical needs
    and providing them with a safe, stable home.
    The guardian ad litem testified that the children wanted to have contact and spend
    time with Mother, but the guardian ad litem did not think that was in the children’s best interest
    “if [Mother] is going to continue to kind of bounce in and out of rehab” and “would trust
    [Grandmother] to make that decision.” The guardian ad litem also reported that Grandmother
    has “done a really good job” taking care of the children and that she is “the only parent or person
    in a parental role that’s been stable for them, that has been consistent, has made sure that all of
    their needs are met.” It was the guardian ad litem’s opinion that placing the children with
    Grandmother was in their best interest. The trial court adopted the associate judge’s ruling and
    thereafter signed the de novo order appointing Grandmother as the sole managing conservator of
    the children, enjoining unsupervised contact between the children and Grandmother’s
    ex-husband, and not appointing Mother as a conservator. This appeal followed.
    ANALYSIS
    In her sole issue, Mother argues that the trial court abused its discretion, or
    alternatively erred, when it did not award her conservatorship of her children and found that it
    would be against the children’s best interest to appoint her as the managing or possessory
    conservator of her children. Mother challenges the sufficiency of the evidence to support the
    trial court’s findings and argues that the Department did not overcome the parental presumption.
    2
    The caseworker testified that she contacted Mother based on two telephone numbers
    that she had but that sometimes Mother “would call from a new number and [she] would attempt
    to call that number again.” The caseworker “ended up having about four numbers that [she]
    would call on a monthly basis to try to contact [Mother].”
    5
    Standard of Review and Applicable Law
    We review conservatorship determinations for abuse of discretion. In re J.J.R.S.,
    __ S.W.3d __, __, No. 20-0175, 
    2021 Tex. LEXIS 446
    , at *10–11 (Tex. June 4, 2021); In re
    J.A.J., 
    243 S.W.3d 611
    , 616 (Tex. 2007); In re A.M.T., 
    592 S.W.3d 974
    , 976 (Tex. App.—San
    Antonio 2019, pet. denied). A trial court’s conservatorship determination “may be reversed only
    if the decision is arbitrary and unreasonable.” In re J.A.J., 243 S.W.3d at 616 (citing Gillespie v.
    Gillespie, 
    644 S.W.2d 449
    , 451 (Tex. 1982)); see In re J.J.R.S., 
    2021 Tex. LEXIS 446
    , at *11.
    Legal and factual sufficiency are not independent grounds of error but factors
    used to determine whether the trial court abused its discretion. In re K.S., 
    492 S.W.3d 419
    , 426
    (Tex. App.—Houston [14th Dist.] 2016, pet. denied); Zeifman v. Michels, 
    212 S.W.3d 582
    , 587
    (Tex. App.—Austin 2006, pet. denied).         Under this standard, an appellate court considers
    whether the trial court had sufficient information on which to exercise its discretion and, if so,
    whether the trial court erred in its application of discretion. Zeifman, 
    212 S.W.3d at 588
    .
    Traditional sufficiency review applies with regard to the first question. Id.; Echols v. Olivarez,
    
    85 S.W.3d 475
    , 478 (Tex. App.—Austin 2002, no pet.); see City of Keller v. Wilson,
    
    168 S.W.3d 802
    , 807, 810 (Tex. 2005) (describing legal sufficiency review); Cain v. Bain,
    
    709 S.W.2d 175
    , 176 (Tex. 1986) (describing factual sufficiency review). A trial court does not
    abuse its discretion as long as there is some substantive, probative evidence to support its
    decision. Zeifman, 
    212 S.W.3d at 587
    ; Echols, 
    85 S.W.3d at 477
    .
    The primary consideration in conservatorship determinations is the child’s best
    interest. Tex. Fam. Code § 153.002; see Holley v. Adams, 
    544 S.W.2d 367
    , 371–72 (Tex. 1976)
    (listing non-exclusive factors for best-interest determination); see also Lenz v. Lenz, 
    79 S.W.3d 10
    ,
    19 (Tex. 2002) (explaining that “[s]uits affecting the parent-child relationship are intensely fact
    6
    driven, which is why courts have developed best-interest tests that consider and balance
    numerous factors”).     “When a court determines conservatorship between a parent and a
    nonparent, a presumption exists that appointing the parent as the sole managing conservator is in
    the child’s best interest.” In re M.J.C.B., No. 11-14-00140-CV, 
    2014 Tex. App. LEXIS 12387
    ,
    at *2–3 (Tex. App.—Eastland Nov. 14, 2014, no pet.) (mem. op.) (citing Tex. Fam. Code
    § 153.131); see In re C.J.C., 
    603 S.W.3d 804
    , 807 (Tex. 2020) (recognizing that “[t]he
    presumption that the best interest of the child is served by awarding custody to [a] parent is
    deeply embedded in Texas law” (quoting In re V.L.K., 
    24 S.W.3d 338
    , 341 (Tex. 2000))); In re
    R.R., 
    209 S.W.3d 112
    , 116 (Tex. 2006) (per curiam) (explaining that “there is a strong
    presumption that the best interest of a child is served by keeping the child with a parent” (citing
    Tex. Fam. Code § 153.131(b))).
    “[U]nless 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, a parent shall be appointed sole managing conservator
    or both parents shall be appointed as joint managing conservators of the child.” Tex. Fam. Code
    § 153.131(a). And “[t]he court shall appoint as a possessory conservator a parent who is not
    appointed as a sole or joint managing conservator unless [the court] finds that the appointment is
    not in the best interest of the child and that parental possession or access would endanger
    the physical or emotional welfare of the child.” Id. § 153.191; see In re D.S.B. & K.A.B.,
    No. 05-14-00950-CV, 
    2016 Tex. App. LEXIS 9111
    , at *9–11 (Tex. App.—Dallas Aug. 22, 2016,
    no pet.) (mem. op.) (explaining that “strong presumption exists that the best interest of a child is
    served by keeping the child with the natural parent, and, if managing conservatorship cannot be
    awarded to the parent, the parent should be appointed possessory conservator”).
    7
    Generally evidence of a parent’s “specific actions or omissions” that demonstrate
    the award of custody to the parent would have a detrimental effect on the child is sufficient proof
    to rebut the parental presumption, but the evidence must do more than raise mere suspicion or
    speculation of possible harm. See Lewelling v. Lewelling, 
    796 S.W.2d 164
    , 166–67 (Tex. 1990)
    (holding that best interest of child is served by awarding custody to natural parent absent
    “evidence of specific actions or omissions of the parent that demonstrate an award of custody to
    the parent would result in physical or emotional harm to the child”); In re B.B.M., 
    291 S.W.3d 463
    ,
    467 (Tex. App.—Dallas 2009, pet. denied) (discussing significant-impairment requirement and
    requiring evidence to do more than “raise a suspicion or speculation of possible harm”);
    Whitworth v. Whitworth, 
    222 S.W.3d 616
    , 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.)
    (explaining that “link between the parent’s conduct and harm to the child may not be based on
    evidence which merely raises a surmise or speculation of possible harm” and that “[t]here must
    be evidence to support the logical inference that some specific, identifiable behavior or conduct
    of the parent will probably cause that harm”). Types of parental conduct that may constitute
    significant impairment include severe neglect, drug abuse, parental irresponsibility, bad
    judgment, and history of mental disorders. In re S.T., 
    508 S.W.3d 482
    , 492 (Tex. App.—Fort
    Worth 2015, no pet.). The “material time to consider is the present,” and “evidence of past
    conduct may not, by itself, be sufficient to show present unfitness.” 
    Id.
    The burden to rebut the parental presumption is by a preponderance of the
    evidence. See Tex. Fam. Code §§ 105.005 (generally requiring court’s findings to be based
    on preponderance of evidence), 153.131(a), 153.191; In re J.A.J., 243 S.W.3d at 616 (stating
    that “finding that appointment of a parent as managing conservator would significantly impair
    the child’s physical health or emotional development is governed by a preponderance-of-the-
    8
    evidence standard” (citing Tex. Fam. Code § 105.005; Lewelling, 796 S.W.2d at 167)).
    With these standards in mind, we turn to Mother’s challenge to the trial court’s
    conservatorship determination.
    Conservatorship Determination
    Mother argues that the evidence was insufficient to support the trial court’s
    findings that appointing her as either possessory or managing conservator would not be in her
    children’s best interest. Mother relies on the guardian ad litem’s testimony that the children
    wanted to have contact with her, see Holley, 544 S.W.2d at 371–72 (listing child’s desires among
    factors to consider in best-interest determination), and challenges the sufficiency of the evidence
    to support that her appointment as a conservator would significantly impair her children’s
    physical health or emotional development. She argues that the Department did not overcome the
    parental presumption, that the only evidence of her “current situation and how it might be
    detrimental to the [c]hildren’s physical health or emotional development” was the testimony at
    the September hearing, and that “[t]here was no testimony about any articulable concerns that
    showed or demonstrated that [she was] a danger to [t]he children” or evidence that she had
    abused or neglected her children or used illicit drugs around them.
    The trial court, however, could have believed the caseworker’s testimony and
    other evidence about Mother’s conduct and the children’s care and, based on this evidence,
    disbelieved Mother’s excuses for not visiting with the children or completing services and her
    testimony that she had “scheduled everything” that the Department requested, that she was
    “getting the hang of everything,” and that she would “do anything and everything” she had to do.
    See In re J.J.J.R., 
    2021 Tex. LEXIS 446
    , at *11 (noting that “conservatorship determinations are
    9
    ‘intensely fact driven,’” quoting Lenz, 79 S.W.3d at 19, and that trial court is in best position to
    observe demeanor and personalities of witnesses); In re J.J.G., 
    540 S.W.3d 44
    , 56 (Tex. App.—
    Houston [1st Dist.] 2017, pet. denied) (observing that trial court is in better position to decide
    custody cases because “it faced the parties and their witnesses, observed their demeanor, and had
    the opportunity to evaluate the claims made by each parent” (citing In re J.R.D., 
    169 S.W.3d 740
    ,
    743 (Tex. App.—Austin 2005, pet. denied))); In re A.H.A., No. 14-12-00022-CV, 
    2012 Tex. App. LEXIS 3290
    , at *34–35 (Tex. App.—Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem.
    op.) (explaining that trial court acting as factfinder was entitled to reject parent’s testimony and
    believe other witness’s testimony); see also Holley, 544 S.W.2d at 372 (listing “any excuses for
    the acts or omissions of the parent” as factor to consider in best interest determination).
    The caseworker testified at the de novo hearing that Mother had not demonstrated
    that she was able to provide her children with a safe, stable home. The Department became
    involved and removed the children because of concerns with Mother’s methamphetamine use,
    Mother tested positive for methamphetamine, and during the pendency of the case, she missed
    around 20 drug tests. See In re C.A.B., 
    289 S.W.3d 874
    , 885 (Tex. App.—Houston [14th Dist.]
    2009, no pet.) (“A factfinder reasonably could infer that [parent’s] failure to submit to the
    court-ordered drug screening indicated she was avoiding testing because she was using drugs.”);
    In re W.E.C., 
    110 S.W.3d 231
    , 239 (Tex. App.—Fort Worth 2003, no pet.) (same). Other
    evidence also showed that Mother had only one visit with her children; did not maintain contact
    with the Department; did not provide support to her children; did not complete services,
    including the recommended inpatient “for her drug disorder”; and continued in a relationship
    with her girlfriend who had a history of drug use. See In re S.T., 508 S.W.3d at 492 (listing drug
    10
    abuse, parental irresponsibility, bad judgment, and history of mental disorders among types of
    conduct that may constitute significant impairment).
    The trial court could have credited this evidence of Mother’s conduct, as well as
    her failure to appear for hearings including the de novo hearing, to find that the Department had
    rebutted the parental presumption, that appointing Mother as a managing conservator would
    significantly impair the children’s physical health or emotional development, and that
    appointing her as a possessory conservator would endanger their welfare. See Tex. Fam. Code
    §§ 153.131(a), .191; Lewelling, 796 S.W.2d at 166–67; In re S.T., 508 S.W.3d at 492; see also
    R.H. v. D.H., No. 03-16-00442-CV, 
    2017 Tex. App. LEXIS 1743
    , at *11 (Tex. App.—Austin
    Mar. 2, 2017, pet. dism’d) (mem. op.) (explaining, in context of overcoming parental
    presumption, that “factfinder may infer the present fitness of the parent to be managing
    conservator from the parent’s recent, deliberate past misconduct”); In re D.S.B. & K.A.B.,
    
    2016 Tex. App. LEXIS 9111
    , at *13–15 (upholding trial court’s placement of children with aunt
    and not appointing Father as managing or possessory conservator based on Father’s conduct).
    Concerning the children’s desire to have contact with Mother, we observe that the
    trial court’s order allows parent-child visits at Grandmother’s discretion and, thus, does not deny
    contact between Mother and the children. See In re J.J.R.S., 
    2021 Tex. LEXIS 446
    , at *16–17
    (distinguishing between order that denies parental access to child and one that limits or restricts
    access and holding that trial court did not abuse discretion in ordering parent-child visitation
    solely at managing conservator’s discretion). The caseworker testified that Grandmother was
    willing to supervise parent-child visits and to have a “normal relationship” with Mother and the
    guardian ad litem testified that she trusted Grandmother to make decisions on parent-child
    11
    visitation and that it was not in the children’s best interest to have contact with Mother if she “is
    going to continue to kind of bounce in and out of rehab.”
    Mother also argues that it was not in the children’s best interest for Grandmother
    to be the sole managing conservator because of Grandmother’s relationship with her ex-husband.
    The trial court’s order, however, enjoined unsupervised contact between Grandmother’s
    ex-husband and the children, and the evidence showed that Grandmother was taking good care of
    the children. On this record, we conclude that the trial court had sufficient evidence on which to
    exercise its discretion and that it did not err in its application of that discretion in appointing
    Grandmother as the children’s sole managing conservator and not appointing Mother as a
    managing or possessory conservator. See Zeifman, 
    212 S.W.3d at 587
    ; Echols, 
    85 S.W.3d at 477
    . We overrule Mother’s issue.
    CONCLUSION
    Having overruled Mother’s issue, we affirm the trial court’s de novo order.
    ________________________________________
    Melissa Goodwin, Justice
    Before Justices Goodwin, Triana, and Kelly
    Affirmed
    Filed: July 8, 2021
    12