in the Interest of Z.J., a Child ( 2021 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-21-00073-CV
___________________________
IN THE INTEREST OF Z.J., A CHILD
On Appeal from the 322nd District Court
Tarrant County, Texas
Trial Court No. 322-679090-20
Before Birdwell, Wallach, and Walker, JJ.
Memorandum Opinion by Justice Birdwell
MEMORANDUM OPINION
Mother and Father appeal from an order naming the Texas Department of
Family and Protective Services as permanent managing conservator of their child and
denying the parents even possessory conservatorship. The parents contend that the
evidence is insufficient to support such an order. We hold that Father’s persistent
drug use, Mother’s physical abuse, and other detriments shared between them justify
the order from an evidentiary standpoint.
Mother raises other challenges, but they are either inadequately briefed or
unpreserved. Ergo, we affirm.
I. BACKGROUND
Father is the biological parent of Mother’s youngest child, a baby whom we will
refer to as Zeke. 1 The Department received a number of troubling reports
concerning Mother, Father, and their children. Based on those reports, the
Department removed the children and initiated these proceedings to terminate
Mother’s and Father’s parental rights to Zeke.
At trial, it was established that some of the children were previously sexually
assaulted by Mother’s former husband. There was also evidence that Mother’s
current paramour, Father, regularly used methamphetamine and thwarted drug tests
by cutting his hair and nails short. Mother also tested positive for trace levels of
1
To protect the minor’s identity, we refer to the family members using
pseudonyms. See Tex. Fam. Code Ann. § 109.002(d); In re J.P., 598 S.W.3d 789, 791
(Tex. App.—Fort Worth 2020, pets. denied).
2
methamphetamine once during the child welfare case. During a period when Father
was incarcerated, Mother allowed one of Father’s acquaintances from jail, Cedric, to
stay in the house and care for the children despite his known anger issues. Witnesses
testified that during Father’s jail stint, his daughter was taken to the hospital with a
broken leg, and Cedric called the Department to report that Zeke was injured as well.
The Department’s investigator testified that when she pressed Mother for an
explanation at the hospital, Mother confessed to injuring Zeke but claimed it was
unintentional, though Mother later denied making any such confession and shifted
blame for the injuries onto Cedric. After Father’s release and the return of the other
children aside from Zeke, Mother often left Father to care for the children despite his
persistent methamphetamine use.
After hearing this evidence, the trial court denied termination of Mother’s and
Father’s parental rights to Zeke. However, the trial court found that appointing
Mother and Father as managing conservators would not be in the child’s best interest
and would significantly impair the child’s physical health or emotional development.
So, the trial court awarded sole permanent managing conservatorship to the
Department. Additionally, the trial court denied Mother and Father possessory
conservatorship, though the court did grant supervised visitation three times a month
conditioned on successful drug testing. Finally, the court ordered Mother and Father
to pay child support and medical support to the Department. Mother and Father
appealed.
3
II. SUFFICIENCY OF THE EVIDENCE
In her first two issues, Mother challenges the sufficiency of the evidence to
support the award of sole managing conservatorship to the Department rather than to
Mother, and Father brings a similar challenge.2 In her third issue, Mother contests the
denial of possessory conservatorship.
A. Applicable Law
Conservatorship determinations made after a bench trial are governed by a
preponderance-of-the-evidence standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex.
2007). The appointment of a conservator is subject to review for abuse of discretion
and may be reversed only where the decision is arbitrary and unreasonable. Id. Under
the abuse-of-discretion standard, legal and factual insufficiency are not independent
grounds for asserting error; they are merely relevant factors in assessing whether a trial
court abused its discretion. In re S.T., 508 S.W.3d 482, 489 (Tex. App.—Fort Worth
2015, no pet.). An abuse of discretion does not occur for want of evidence when the
2
In Father’s statement of issues, he also argues, “There was not enough
evidence to support the trial court’s decision to grant permanent managing
conservatorship to the Department as Appellant was incarcerated when the child was
injured.” He continues, “The Department failed to provide drug treatment services to
Appellant until one week before trial.” However, if Father intended for these
sentences to serve as issues, he offered no argument or authority to support them, and
we deem them inadequately briefed. See Tex. R. App. P. 38.1(i) (requiring a clear and
concise argument with appropriate citations to legal authorities); In re T.T.F., 331
S.W.3d 461, 477–78 (Tex. App.—Fort Worth 2010, no pet.). Father’s only adequately
briefed argument concerns whether naming the Department as managing conservator
was in Zeke’s best interest.
4
trial court bases its decision on conflicting evidence and some evidence of substantive
and probative character supports its decision. Id. at 490.
A child’s best interest is the primary consideration in determining
conservatorship issues. Tex. Fam. Code Ann. § 153.002; Danet v. Bhan, 436 S.W.3d
793, 796 (Tex. 2014) (per curiam). A best-interest determination is guided by the
nonexclusive Holley factors: (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 individuals or by the agency
seeking custody; (7) the stability of the home or proposed placement; (8) the acts or
omissions of the parent which may indicate that the existing parent–child relationship
is not a proper one; and (9) any excuse for the acts or omissions of the parent. In re
E.N.C., 384 S.W.3d 796, 807 (Tex. 2012) (citing Holley v. Adams, 544 S.W.2d 367, 371–
72 (Tex. 1976)). A court need not have evidence on every element listed to make a
valid finding as to the child’s best interest. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In
re E.S., No. 02-20-00407-CV, 2021 WL 2149627, at *7 (Tex. App.—Fort Worth May
27, 2021, no pet. h.) (mem. op.). While no one factor is controlling, analysis of a
single factor may be adequate in a particular situation to support a finding that
termination is in the best interest of the child. E.S., 2021 WL 2149627, at *7; In re
R.J., 579 S.W.3d 97, 114 (Tex. App.—Houston [1st Dist.] 2019, pet. denied).
5
There is a presumption that appointment of a parent as managing conservator
is in the child’s best interest. Tex. Fam. Code Ann. § 153.131(a); S.T., 508 S.W.3d at
491. A nonparent can rebut the presumption by showing that appointment of the
parent would significantly impair the child’s physical health or emotional
development. Tex. Fam. Code Ann. § 153.131(a); S.T., 508 S.W.3d at 491. To show
significant impairment, the nonparent must identify specific acts or omissions by the
parent which demonstrate that an award of custody to the parent would result in
physical or emotional harm to the child. S.T., 508 S.W.3d at 492; In re S.W.H., 72
S.W.3d 772, 777 (Tex. App.—Fort Worth 2002, no pet.) (quoting 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.” S.T., 508
S.W.3d at 492.
If a managing conservator is appointed, the court may appoint one or more
possessory conservators. Tex. Fam. Code Ann. § 153.006(a); In re B.P., Jr., No. 2-07-
251-CV, 2008 WL 2639264, at *6 (Tex. App.—Fort Worth July 3, 2008, no pet.)
(mem. op.). When a parent is not appointed as a managing conservator, the Family
Code calls for the parent to be appointed as a possessory conservator unless a 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.
6
Tex. Fam. Code Ann. § 153.191; Brandon v. Rudisel, 586 S.W.3d 94, 106 (Tex. App.—
Houston [14th Dist.] 2019, no pet.).
B. Father
Father argues that the evidence was insufficient to show that appointing the
Department as Zeke’s sole managing conservator was in the child’s best interest.
To Father’s credit, there was some evidence of his ability to provide for Zeke.
Father was a successful mechanic, and he helped provide a three-bedroom house
where he lived with Mother. He testified that he kept his schedule flexible to make
sure that the children were cared for when Mother was at work, and he spoke
affectionately of Zeke at trial.
However, there was no shortage of evidence concerning Father’s insobriety,
which included both methamphetamine and cocaine use, for which he spent time in
jail. On the rare occasion that he actually took a court-ordered drug test, Father
appeared at the testing facility under the obvious influence of drugs, as the test
administrator explained:
A. [Father’s] demeanor was completely 180 from the other previous
four to five times that we had met. He was very anxious. His thought
process was—was interrupted several times. What—you know, his
inability to make complete sentences, body language, just moving about
very frequently and rapidly, hand gestures, moving from one topic to
another, just not a lot of continuity. In addition to—
....
Q. And did you notice any type of odor or aroma about him that caused
you concern?
7
A. Yes, ma’am.
Q. And—and what was that?
A. I—I could smell an odor of methamphetamine or the residual from
it as if it were perfused through the skin.
The Department caseworker testified that if Father were using drugs in the home, it
would not be a safe or appropriate environment for a child. Even Mother’s therapist,
who supported the parents’ bid to retain conservatorship, agreed that if someone were
using drugs in the home, it would not be wise for children to remain there. Father’s
drug use plays into several of the Holley factors. See In re D.D.M., No. 01-18-01033-
CV, 2019 WL 2939259, at *9 (Tex. App.—Houston [1st Dist.] July 9, 2019, no pet.)
(mem. op. on reh’g) (concluding that heavy methamphetamine usage, on its own,
justified naming the Department as managing conservator due to its harmful effect on
a father’s life and ability to parent).
A litany of other problems also reflected poorly on Father’s parental abilities,
the danger to the child, the stability of the home, and the propriety of Father’s
custody as shown by his acts or omissions. Father referred Cedric, a recently released
convict, to live with the children despite Father’s knowledge that Cedric had anger
issues. Indeed, Mother blamed Zeke’s injuries on Cedric; to the extent that the trial
court gave any credence to this testimony, the court could have faulted Father for
8
bringing this danger into Zeke’s life.3 Father reportedly admitted beating a previous
girlfriend and was referred to a batterer’s intervention program.4 Mother also testified
that Father had been diagnosed with several mental disorders.5 Department witnesses
testified that Father refused to provide financial statements and did not successfully
complete his service plan. And Father denied responsibility for his actions. 6 He
maintained that he cut his hair and nails short (in defiance of a court order) not for
the purpose of evading drug testing, but to suit the needs of his job as a mechanic.
Father and Mother jointly contended that their positive drug tests were attributable to
their innocent use of various medications, though the Department’s witnesses testified
that Father’s medications could not cause a false positive result. Finally, Father
asserted that the Department’s records concerning his various periods of incarceration
were incorrect.
3
See E.S., 2021 WL 2149627, at *8 (weighing whether there is domestic violence
“by the child’s family or others who have access to the child’s home” in the
conservatorship calculus).
4
See id. at *9 (concluding that domestic violence, even when the child is not the
target, tended to support denying a parent managing conservatorship).
5
See In re R.R., No. 02-13-00464-CV, 2014 WL 3953930, at *3 (Tex. App.—Fort
Worth Aug. 14, 2014, no pet.) (mem. op.) (relying in part on a mother’s “mental
disorders” in upholding a denial of managing conservatorship).
6
See In re B.O., No. 02-16-00485-CV, 2017 WL 2590571, at *25 (Tex. App.—
Fort Worth June 15, 2017, no pet.) (mem. op.) (stating that considerations for
conservatorship “include parental irresponsibility”).
9
Taking this evidence together and surveying it under our deferential standard of
review, we conclude that the trial court did not abuse its discretion by determining that
naming Father as Zeke’s managing conservator was not in the child’s best interest. See
M.D. v. Tex. Dep’t of Family & Protective Servs., No. 03-20-00531-CV, 2021 WL 1704258,
at *9, *12–13 (Tex. App.—Austin Apr. 30, 2021, no pet.) (mem. op.) (concluding that
evidence of a mother’s methamphetamine use and child mistreatment was insufficient
to support termination but that it was sufficient, along with other evidence, to support
naming the Department as sole managing conservator).
We overrule Father’s issues.
C. Mother7
In Mother’s first, second, and third issues, she asserts the evidence is
insufficient to justify naming the Department as sole managing conservator and to
deny Mother possessory conservatorship.
In Mother’s favor, there was evidence of her commitment and ability to
provide for Zeke emotionally and financially. Mother testified that at the time of trial,
7
In what Mother dubs issue 3a, she challenges the admission of her drug test
results into evidence. However, Mother does so with only one sentence of argument,
which reads, “Courts of Appeal have recognized the need to show that drug tests
results have been properly preserved or generated an [sic] also that they were
produced by the use of proper procedures and methods.” We hold this argument
inadequately briefed; where, as here, an appellant provides a one-sentence proposition
of law without any legal analysis, discussion, or argument explaining why the
complained-of evidence was inadmissible, nothing is presented for our review. See
Tex. R. App. P. 38.1(i); Lozada v. Farrall & Blackwell Agency, Inc., 323 S.W.3d 278, 287
(Tex. App.—El Paso 2010, no pet.).
10
she had a steady job at a warehouse, a house with a separate bedroom for Zeke, and a
family support system that she could rely on as a resource for childcare and for her
own therapeutic needs. Mother said that she previously quit a demanding job at a law
firm to be able to comply with her service plan. Aside from one positive drug test,
Mother otherwise tested negative for drugs, and her counselors believed that Mother
was not a regular drug user.
There was also evidence that Mother had made significant changes to better
herself and her relationship with the children. She explained that before the children
were removed, she was overwhelmed by the burden of raising five children on her
own. Mother believed that her circumstances had changed for the better, though,
because she had gained a coparent in Father, supportive friends, and new techniques
that she learned in therapy for dealing with stressors. Mother’s therapist testified that
Mother made improvement over the course of their counseling sessions, especially in
that she took more responsibility for the children’s problems. Finally, Mother had
cared for Zeke’s siblings without incident since the Department had agreed to their
monitored return.
But the Department’s caseworker testified that Zeke was different from the
other children because, as a baby, he was incapable of protecting himself from abuse.
And there was evidence that Mother did in fact severely abuse Zeke.8 A Department
investigator testified she received a call from Cedric reporting that Zeke was injured.
8
See S.T., 508 S.W.3d at 492.
11
The investigator met Cedric in a parking lot and took Zeke to the hospital, where
Father’s daughter was being treated for a broken leg, the source of which was never
explained at trial.9 Photos taken at the hospital depicted a baby with heavy bruising
across both sides of his head, including the entire left side of his face, as well as welts
and scratches on his chest and neck. The investigator testified that when she
confronted Mother with the photos at the hospital, Mother confessed to injuring the
child:
[Mother] denied the injuries at first. And after I showed her the pictures
of the extensive bruising to his entire face, she admitted to, like, pushing
him down in a bathtub because she was upset that he was trying to crawl
out of the bathtub. So she admitted to, like, pushing him kind of down
into the bathtub.
At trial, Mother denied making any such confession and instead blamed the injuries
on Cedric.10
This abuse (and denial of responsibility for the abuse) stood alongside several
other failings that further supported findings against Mother on endangerment,
significant impairment, and best interest. While Father was incarcerated, Mother
allowed a recently released convict with anger issues to stay in the home and care for
When the Department filed its petition to remove the children, it submitted an
9
affidavit that relayed one of the children’s account of how the broken leg had
occurred: during a babysitting session, mother’s eldest son had jumped on the child’s
leg and intentionally broken it out of frustration with Mother’s constant absence from
the squalid family home, but Mother did not immediately seek medical care for the
child because Mother viewed her as a “lying[,] thieving bitch” and thought that the
child was malingering.
10
See B.O., 2017 WL 2590571, at *25.
12
the children on his own.11 After Father’s release, Mother often left Father—a regular
methamphetamine user—in charge of the children.12 Mother also tested positive for
methamphetamine. Mother’s own therapist agreed it would not be wise for the
children to remain in an environment of drug use. Moreover, Mother refused to
allow the Department access to the home to verify its condition, refused to provide
account statements to verify her financial situation, and refused to provide a list of her
medications even though she professed that her and Father’s positive drug tests were
caused by use of medications. And as to the Holley factor concerning programs
available to assist the parents, Mother testified that she would not seek any further
counseling unless it was required for Zeke’s return.
Viewed together, these acts and omissions justified the trial court’s finding that
awarding managing conservatorship to Mother would significantly impair Zeke’s
health and development and would not be in his best interest, and that the child’s
interests would be best served by appointing the Department as sole managing
conservator. See S.T., 508 S.W.3d at 491–92. Furthermore, the trial court could have
fairly found that the appointment of Mother as possessory conservator would not be
in Zeke’s best interest and would endanger his welfare.13 See Tex. Fam. Code Ann.
11
See E.S., 2021 WL 2149627, at *8.
12
See M.D., 2021 WL 1704258, at *9, *12–13; D.D.M., 2019 WL 2939259, at *9.
While the trial court declined to appoint Mother as possessory conservator
13
and made findings concerning other issues in the case, the trial court did not make the
13
§ 153.191; Brandon, 586 S.W.3d at 106. The trial court therefore did not abuse its
discretion in naming the Department as Zeke’s sole managing conservator and
denying Mother even possessory conservatorship.
We overrule Mother’s first three issues.
III. CONDITIONS OF CONSERVATORSHIP
In her fourth, fifth, and sixth issues, Mother contests the terms of the trial
court’s conservatorship order. Specifically, Mother protests the order’s requirement
that she pay $113 per month to the Department in order to defray the cost of
supporting Zeke. Mother also objects to the trial court’s failure to set specific
guidelines for her possession of and access to Zeke, as well as a provision that,
findings that are required for denial of possessory conservatorship: that the
appointment was not in the best interest of the child and that parental possession or
access would endanger the physical or emotional welfare of the child. See Tex. Fam.
Code Ann. § 153.191. “The judgment may not be supported upon appeal by a
presumed finding upon any ground of recovery or defense, no element of which has
been included in the findings of fact . . . .” Luna v. Pickel, No. 02-19-00371-CV, 2020
WL 5949927, at *5 (Tex. App.—Fort Worth Oct. 8, 2020, no pet.) (mem. op.)
(quoting Tex. R. Civ. P. 299).
However, on appeal, Mother does not assign error or brief any challenge
concerning the absence of these findings. See Pike v. Tex. EMC Mgmt., LLC, 610
S.W.3d 763, 782 (Tex. 2020). “A court of appeals may not reverse a trial court
judgment on a ground not raised.” Id. “Our adversary system of justice generally
depends ‘on the parties to frame the issues for decision and assigns to courts the role
of neutral arbiter of matters the parties present.’” Id. (cleaned up) (quoting Greenlaw v.
United States, 554 U.S. 237, 243, 128 S. Ct. 2559, 2564 (2008)). “The rule that points
not argued will not be considered is more than just a prudential rule of convenience;
its observance, at least in the vast majority of cases, distinguishes our adversary system
of justice from the inquisitorial one.” Id. (quoting United States v. Burke, 504 U.S. 229,
246, 112 S. Ct. 1867, 1877 (1992) (Scalia, J., concurring)). The absence of these
findings therefore may not serve as a basis for reversal.
14
according to Mother, empowers the Department to set ambiguous conditions on her
possession and access.
The Department responds that because Mother never raised these arguments in
the trial court, they are not preserved. We agree with the Department.
“To preserve a complaint for appellate review, a party must have presented to
the trial court a timely request, objection, or motion that states the specific grounds
for the desired ruling, if they are not apparent from the context of the request,
objection, or motion.” In re C.H., 412 S.W.3d 67, 78 (Tex. App.—Fort Worth 2013,
pet. denied). “If a party fails to do this, error is not preserved.” In re J.C., 594 S.W.3d
466, 473 (Tex. App.—Fort Worth 2019, no pet.). This rule conserves judicial
resources by giving trial courts an opportunity to correct an error before an appeal
proceeds, promotes fairness among litigants by prohibiting them from surprising their
opponents on appeal, and furthers the goal of accuracy in judicial decision-making by
allowing the parties to develop and refine their arguments and allowing the trial court
to analyze the questions at issue. USAA Tex. Lloyds Co. v. Menchaca, 545 S.W.3d 479,
510 (Tex. 2018) (op. on reh’g). An appellate court generally cannot reverse based on a
complaint not raised in the trial court. C.H., 412 S.W.3d at 78–79.
“An exception to the preservation-of-error requirement applies when the
alleged error is ‘fundamental.’” Menchaca, 545 S.W.3d at 510. But Mother has not
argued that any of the complained-of provisions constitute fundamental error, and we
find no authority suggesting that they are. See Mack Trucks, Inc. v. Tamez, 206 S.W.3d
15572, 577 (Tex. 2006) (collecting cases where the fundamental-error doctrine applies,
but not including the complaints at issue here); In re B.L.D., 113 S.W.3d 340, 350
(Tex. 2003) (same).
Ergo, because Mother never raised these complaints in the trial court, we
overrule her remaining issues. See Tex. R. App. P. 33.1(a); see, e.g., In re H.E.W.M., No.
04-19-00202-CV, 2020 WL 1866466, at *4 (Tex. App.—San Antonio Apr. 15, 2020,
pet. denied) (mem. op.) (rejecting an argument against medical support obligations
because the father “did not specifically request a modification of the medical support
obligation in his counter-petition, at the hearing, or in his post-hearing motions, and
he did not present an objection to the trial court that the cumulative amount of his
medical support obligations exceeds nine percent of his resources”).
IV. CONCLUSION
We affirm the trial court’s judgment.
/s/ Wade Birdwell
Wade Birdwell
Justice
Delivered: August 5, 2021
16