In the Interest of I.K.G., a Child v. the State of Texas ( 2023 )

IN THE
TENTH COURT OF APPEALS
No. 10-22-00043-CV
IN THE INTEREST OF I.K.G., A CHILD
From the County Court at Law
Navarro County, Texas
Trial Court No. C21-29703-CV
MEMORANDUM OPINION
We previously issued our memorandum opinion and judgment on February 15,
2023. See, e.g., In re I.K.G., No. 10-22-00043-CV, 2023 Tex. App. LEXIS 975 (Tex. App.—
Waco Feb. 15, 2023, no pet. h.) (mem. op.). Upon further review, we withdraw our
memorandum opinion and judgment issued on February 15, 2023, and substitute this
memorandum opinion and judgment in its place. See TEX. R. APP. P. 19.1.
In four issues, appellants, J.G. and T.B., challenge the trial court’s order appointing
a non-parent, C.S., sole managing conservator and appointing J.G. and T.B. possessory
conservators with supervised visitation of their child, I.K.G. We affirm.
Background
When I.K.G. was born in late 2019, the Texas Department of Family and Protective
Services (the “Department”) filed suit to terminate J.G. and T.B.’s parental rights to I.K.G.
and another child. J.G. and T.B. placed I.K.G. in C.S.’s care shortly after birth, and the
Department non-suited its termination petition.
On May 12, 2021, after I.K.G. had been in C.S.’s custody for more than a year, C.S.
filed her original petition in suit affecting the parent-child relationship seeking, among
other things, sole managing conservatorship of I.K.G., no access for J.G. and T.B. or, in
the alternative, supervised visitation, and child support. Both J.G. and T.B. were served
with C.S.’s petition, but neither filed answers in the trial court. Nevertheless, both J.G.
and T.B. participated in the hearing conducted on C.S.’s petition.
As they have throughout this case, J.G. and T.B. represented themselves. C.S. and
J.G. testified at the hearing. At the conclusion of the hearing, the trial court signed an
order appointing C.S. as sole managing conservator of I.K.G., appointing J.G. and T.B. as
possessory conservators, ordering that J.G. and T.B.’s visitation with I.K.G. be supervised,
and ordering J.G. and T.B. to each pay $200 per month in child support, among other
things. Thereafter, J.G. and T.B. filed a joint pro se notice of appeal.
In the Interest of I.K.G., a child Page 2
Analysis
CONSERVATORSHIP
In their first issue, J.G. and T.B. argue that the trial court abused its discretion by
naming C.S. as the sole managing conservator of I.K.G. because the evidence is
insufficient to overcome the parental presumption that the appointment of J.G. and T.B.
as sole or joint managing conservators would not significantly impair I.K.G.’s physical
health and emotional development. We disagree.
Standard of Review
“Trial courts have wide discretion with respect to conservatorship, control,
possession, and visitation matters involving the child.” Compton v. Pfannenstiel, 428
S.W.3d 881, 886 (Tex. App.—Houston [1st Dist.] 2014, no pet.) (citing In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We
review a trial court’s determination of conservatorship for an abuse of discretion, and we
reverse the trial court’s order only if we determine, from reviewing the entire record, that
the trial court’s decision was arbitrary and unreasonable. Id. A trial court abuses its
discretion if it acts without reference to any guiding rules or principles. Downer v.
Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
“In family law cases[,] the abuse-of-discretion standard of review overlaps with
the traditional sufficiency-of-the-evidence standards of review.” Roberts v. Roberts, 531
S.W.3d 224, 231 (Tex. App.—San Antonio 2017, pet. denied); see Bradshaw v. Bradshaw, 555
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S.W.3d 539, 549 (Tex. 2018) (Devine, J., concurring). Therefore, in our review of the trial
court’s appointment of C.S. as sole managing conservator and J.G. and T.B. as possessory
conservators, we consider whether: (1) the trial court had sufficient evidence upon which
to exercise its discretion; and (2) the trial court erred in its application of that discretion.
Roberts, 555 S.W.3d at 549 (citing Monroe v. Monroe, 358 S.W.3d 711, 719 (Tex. App.—San
Antonio 2011, pet. denied)).
In determining whether there is legally sufficient evidence to support the trial
court’s exercise of discretion, a reviewing court considers evidence and inferences
favorable to the finding if a reasonable factfinder could, and disregards evidence contrary
to the finding unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d
802, 827 (Tex. 2005). The factfinder is the sole judge of the credibility of the witnesses and
the weight to be given to their testimony. See id. at 819. The factfinder is free to believe
one witness and disbelieve another, and reviewing courts may not impose their own
opinions to the contrary. Id. As such, reviewing courts must assume that the factfinder
decided all credibility questions in favor of the findings and chose what testimony to
disregard in a way that was in favor of the findings, if a reasonable person could do so.
Id. at 819-20.
Moreover, it is within the factfinder's province to resolve conflicts in the evidence.
Id. at 820. Consequently, we must assume that, where reasonable, the factfinder resolved
all conflicts in the evidence in a manner consistent with the findings. Id. Where
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conflicting inferences can be drawn from the evidence, it is within the province of the
factfinder to choose which inference to draw, so long as more than one inference can
reasonably be drawn. Id. at 821. Thus, we must assume that the factfinder made all
inferences in favor of the findings if a reasonable person could do so. Id. The final test
for legal sufficiency must always be “whether the evidence at trial would entitle
reasonable and fair-minded people to reach the verdict under review.” Id. at 827.
Anything more than a scintilla of evidence is legally sufficient to support the finding. See
Cont'l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996).
In analyzing a factual-sufficiency challenge, we examine the entire record to
determine if the trial court’s finding is so against the great weight and preponderance of
the evidence as to be manifestly unjust. In re C.H., 89 S.W.3d 17, 25 (Tex. 2002). We may
not pass upon the witnesses' credibility or substitute our judgment for that of the
factfinder, even if the evidence would support a different result. 2900 Smith, Ltd. v.
Constellation New Energy, Inc., 301 S.W.3d 741, 746 (Tex. App.—Houston [14th Dist.] 2009,
no pet.).
Applicable Law
“The best interest of the child shall always be the primary consideration of the
court in determining the issues of conservatorship and possession of and access to the
child.” TEX. FAM. CODE ANN. § 153.002. There is a rebuttable presumption that it is in the
best interest of the child for at least one parent to be appointed as managing conservator
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of the child. Id. § 153.131(b). However, “if the court finds that appointment” of a parent
as managing conservator “would not be in the best interest of the child because the
appointment would significantly impair the child’s physical health or emotional
development,” the presumption no longer applies. Id. § 153.131(a); see In re F.E.N., 579
S.W.3d 74, 76-77 (Tex. 2019) (per curiam). A finding that the appointment of a parent as
managing conservator would significantly impair a child’s physical health or emotional
development need only be supported by a preponderance of the evidence. In re
D.L.W.W., 617 S.W.3d 64, 94 (Tex. App.—Houston [1st Dist.] 2020, no pet.).
The Texas Supreme Court has stated that the underlying concern behind section
153.131(a) is the child’s well-being. In re J.A.J., 243 S.W.3d at 616. “Thus, in order to
deprive a parent of custody, the evidence must support a logical inference that some
specific, identifiable behavior or conduct of the parent will probably cause significant
physical or emotional harm to the child.” May v. May, 829 S.W.2d 373, 377 (Tex. App.—
Corpus Christi 1992, writ denied); see Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.
1990). “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.” In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth
2015, no pet.). “Likewise, the parent’s treatment of other children may be relevant.” Id.In determining the best interest of the child, courts may consider the familiar
Holley factors:
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(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 these individuals to promote the best interest
of the child;
(6) the plans for the child by the parents;
(7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent which may indicate the existing parent-child
relationship was 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). There is no requirement that the trial
court hear evidence concerning each of the Holley factors, and the trial court is permitted
to consider additional factors in determining a child’s best interest. See In re D.M., 58
S.W.3d 601, 814 (Tex. App.—Fort Worth 2001, no pet.) (citing Holley, 544 S.W.2d at 371-
72).
Discussion
The record reflects that when I.K.G. was born in late 2019, the Department filed
suit to terminate J.G. and T.B.’s parental rights to I.K.G. and another child. J.G. and T.B.
placed I.K.G. in C.S.’s care shortly after birth, and the Department non-suited its
termination petition. C.S. testified that I.K.G. had been in her care and custody for almost
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two years as of the time of the hearing and that the Department had approved her home
for placement. C.S. further testified that there is a history or pattern of neglect committed
by J.G. and T.B.; that she has been responsible for I.K.G.’s safety and stability; that she
has treated I.K.G. as her own child; and that appointing her sole managing conservator
is in I.K.G.’s best interest. On cross-examination, C.S. acknowledged that J.G. had not
ever put I.K.G. “in any kind of danger.” C.S. did not know whether T.B. had placed I.K.G.
“in any immediate danger.”
In his testimony, J.G. emphasized that T.B. and he had a written agreement with
C.S. to place I.K.G. with C.S. after he was born “because we were not allowed to have any
children under the age of 18 in our care” and that “our agreement was for her to
temporarily have him so we could get our other case dismissed or as soon as it’s done in
court and all.”1 J.G. admitted that he has not seen I.K.G., but he has purportedly tried to
provide for I.K.G. According to J.G., C.S. declined to take money from J.G. and T.B.,
stating that “she has everything under control.”
J.G. later clarified that he has seen I.K.G. once a month since he was born. Both
J.G. and T.B. asserted that they want joint custody with C.S. and that they are “not trying
to take him from [C.S.] because he has been there his whole life. I just want to be able to
have him too, you know, and that’s it.”
1 The purported written agreement was not made a part of this record.
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The first Holley factor contemplates the desires of the child. See Holley, 544 S.W.2d
at 372. At the time of the hearing, I.K.G. was not yet three years old. “When children are
too young to express their desires, the factfinder may consider whether the children have
bonded with the [placement], are well-cared for by them, and have spent minimal time
with a parent. In re S.R., 452 S.W.3d 351, 369 (Tex. App.—Houston [14th Dist.] 2014, pet.
denied). Here, C.S. testified that she is responsible for the safety and stability of I.K.G.
and that she treats him as if he is one of her own children. There is no evidence that I.K.G.
has been mistreated while in C.S.’s care and custody. However, there is conflicting
evidence regarding how frequently J.G. and T.B. have seen I.K.G. Indeed, J.G. testified
that he had not seen I.K.G. since birth, but he later clarified that he sees I.K.G. once a
month.
With regard to the second, third, and seventh factors, we note that “[t]he need for
permanence is a paramount consideration for a child’s present and future physical and
emotional needs.” In re J.G.S., 550 S.W.3d 698, 705 (Tex. App.—El Paso 2018, no pet.). As
stated earlier, the trial court heard testimony that C.S. has cared for I.K.G. since birth and
that J.G. and T.B.’s presence in I.K.G.’s life is not consistent. See TEX. FAM CODE ANN. §
153.373 (providing that the presumption that a parent should be appointed or retained as
managing conservator of the child is rebutted if the court finds that “the parent has
voluntarily relinquished actual care, control, and possession of the child to a
nonparent . . . for a period of one year or more, a portion of which was within 90 days
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preceding the date of intervention in or filing of the suit” and appointment of the
nonparent is in the best interest of the child).
The fourth factor concerns the parenting abilities of the parents. See Holley, 544
S.W.2d at 372. The record reflects that the Department had filed petitions to terminate
the parental rights of both J.G. and T.B. as to I.K.G. and another child. The Department
nonsuited its termination petition as to I.K.G. only after J.G. and T.B. relinquished
custody of I.K.G. to C.S. Moreover, C.S. testified that both J.G. and T.B. have a history or
pattern of neglect, which necessitated intervention by the Department.
With regard to the sixth factor, neither J.G. nor T.B. provided detailed plans for
taking custody of I.K.G. See id. Rather, they merely asserted that they would agree to
joint custody with C.S., as has been the case for the approximately three years preceding
the hearing in this matter.
The eighth and ninth factors pertain to any acts or omissions on the part of the
parent that may indicate the existing parent-child relationship is not a proper one, and
whether there are any excuses for those acts or omissions. Id. J.G. and T.B. relinquished
custody of I.K.G. to C.S. because of pending petitions to terminate their parental rights
filed by the Department. C.S. explained that J.G. and T.B. engaged in a pattern of neglect
that necessitated Department intervention. Neither J.G. nor T.B. provided any excuse or
explanation for the neglect allegations.
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Because no Holley factor weighs in J.G. or T.B.’s favor, we cannot conclude that the
trial court abused its discretion by refusing to appoint C.S. as sole managing conservator
and J.G. and T.B. as possessory conservators of I.K.G. See Compton, 428 S.W.3d at 886; see
also TEX. FAM. CODE ANN. § 153.373. As such, we overrule J.G. and T.B.’s first issue.
Visitation and the Trial Court’s Permanent Injunction
In their second issue, J.G. and T.B. contend that the trial court abused its discretion
by naming them possessory conservators and limiting access to I.K.G. through
supervised visitation without any evidence of impairment or danger to I.K.G.’s physical
health or emotional development.
We have already concluded that the trial court did not abuse its discretion by
naming J.G. and T.B. possessory, rather than managing, conservators. Thus, in this issue,
we need only address J.G. and T.B.’s complaints about the portion of the trial court’s
order pertaining to supervised visitation.
The public policy of Texas is to ensure that children enjoy “frequent and
continuing contact with parents who have shown the ability to act” in their child’s best
interest. TEX. FAM. CODE ANN. § 153.001(a). There is a rebuttable presumption that the
standard possession order “(1) provides reasonable minimum possession of a child for a
parent named as a possessory conservator or joint managing conservator; and (2) is in the
best interest of the child.” Id. § 153.252. However, a trial court is permitted to place
conditions on a parent’s access, such as supervised visitation, if necessary for the child’s
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best interest. See id. §§ 153.193, 153.256; see also In re R.D.Y., 51 S.W.3d 314, 324 (Tex.
App.—Houston [1st Dist.] 2001, pet. denied) (noting that trial courts are permitted to
place conditions on a parent’s visitation if necessary for the child’s best interest). There
is also “a rebuttable presumption that it is not in the best interest of a child for a parent
to have unsupervised visitation with the child if credible evidence is presented of a
history or pattern of past or present child neglect or physical or sexual abuse by that
parent directed against the other parent, a spouse, or a child.” TEX. FAM. CODE ANN. §
153.004(a). The terms of an order restricting a parent’s right of possession of or access to
a child may not exceed those that are required to protect the best interest of the child. See
id. § 153.193.
On appeal, J.G. and T.B. complain that,
[f]our hours a month supervised is not ample time to maintain any type of
relationship. Also with the visits being supervised at appellee[‘]s home by
Appellee[,] it does not allow I.K.G. to ever interact with or know any of his
immediate or extended family or his siblings. It eliminates him spending
any holidays with anyone in his family.
Texas courts have repeatedly held that limited visitation does not amount to
deprived visitation. See Niskar v. Niskar, 136 S.W.3d 749, 756 (Tex. App.—Dallas 2004, no
pet.) (“When a trial court denies a parent overnight visitations with the child, it has not
denied the parent’s visitation rights.”); Beaupre v. Beaupre, 700 S.W.2d 353, 354-55 (Tex.
App.—Fort Worth 1985, writ dism’d) (holding that a visitation provision that temporarily
limited appellant’s access did not constitute denial of access); see also Malekzadeh v.
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Malekzadeh, No. 14-05-00113-CV, 2007 Tex. App. LEXIS 5178, at *44 (Tex. App.—Houston
[14th Dist.] July 3, 2007, pet. denied) (mem. op.) (“[W]e note that by restricting appellant’s
visitation with and possession of the child, the trial court has not denied appellant his
rights as parent.” (citation & internal quotation marks omitted)).
Given the evidence outlined in the preceding Holley analysis, which supports the
trial court’s finding that “credible evidence has been presented that there is a history or
pattern of neglect committed by [T.B.] and [J.G.],” we cannot conclude that the trial court
abused its discretion by placing conditions on J.G. and T.B.’s access to I.K.G. by virtue of
supervised visitation. See In re P.A.C., 498 S.W.3d 210, 219 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied) (stating that a trial court does not abuse its discretion in
restricting a parent’s possession and access to a child when the record contains evidence
to support a finding that such restrictions are in the best interest of the child).
Accordingly, we overrule J.G. and T.B.’s second issue.2
J.G. and T.B.’s Remaining Issues
In their third and fourth issues in their opening brief, J.G. and T.B. complain about
the trial court’s child-support order and that the trial court erred by holding a final prove-
2J.G. and T.B. also complain in this issue about lack of notice of the hearing that resulted in the
complained-of order. First, we note that this complaint is multifarious and may be disregarded. See In re
S.K.A., 236 S.W.3d 875, 894 (Tex. App.—Texarkana 2007, pet. denied) (observing that a multifarious issue
or point of error is one that raises more than one specific ground of error); see also Rich v. Olah, 274 S.W.3d
878, 885 (Tex. App.—Dallas 2008, no pet.) (stating that courts may disregard any assignment of error that
is multifarious). Second, by appearing at the hearing without objection, any complaint regarding notice
was waived. See TEX. R. CIV. P. 245; see also Keith v. Keith, 221 S.W.3d 156, 163 (Tex. App.—Houston [1st
Dist.] 2006, no pet.). As such, we conclude that these complaints lack merit.
In the Interest of I.K.G., a child Page 13
up hearing without the parties stating they were in agreement and without holding
another hearing. Although these issues are listed in the issues presented section of their
brief, J.G. and T.B. did not provide any argument or authority in support of these issues.
J.G. and T.B.’s failure to cite legal authority or provide substantive analysis of the legal
issues in this direct appeal results in the waiver of the complaints. See TEX. R. APP. P.
38.1(i); see also Fredonia State Bank v. Gen. Am. Life Ins. Co., 881 S.W.2d 279, 284 (Tex. 1994)
(observing that error may be waived by inadequate briefing).
We recognize that J.G. and T.B. briefly mentioned the child-support order in their
reply brief. However, an issue raised for the first time in a reply brief is ordinarily waived
and need not be considered. See TEX. R. APP. P. 38.3; see also In re Roy, 249 S.W.3d 592, 595
(Tex. App.—Waco 2008, pet. denied) (citing Zamarron v. Shinko Wire Co., 125 S.W.3d 132,
139 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)). Moreover, J.G. and T.B. failed to
cite any legal authority in support of the complaint pertaining to the child-support order.
See TEX. R. APP. P. 38.1(i); see also Fredonia State Bank, 881 S.W.2d at 284; Tello v. Bank One,
N.A., 218 S.W.3d 109, 116 (Tex. App.—Houston [14th Dist.] 2007, no pet.) (noting that “we
know of no authority obligating us to become advocates for a particular litigant through
performing their research and developing their argument for them” (internal quotation
omitted)). Thus, we conclude that J.G. and T.B. waived their third and fourth issues.
Accordingly, we overrule J.G. and T.B.’s third and fourth issues.
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Conclusion
Having overruled all of J.G. and T.B.’s issues on appeal, we affirm the judgment
of the trial court.
STEVE SMITH
Justice
Before Chief Justice Gray,
Justice Johnson, and
Justice Smith
Affirmed
Opinion delivered and filed March 22, 2023
[CV06]
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