W. G. v. Texas Department of Family and Protective Services ( 2023 )

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-23-00083-CV
W. G., Appellant
v.
Texas Department of Family and Protective Services, Appellee
NO. 03-23-00084-CV
C. G. and W. G., Appellants
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 274TH DISTRICT COURT OF HAYS COUNTY
NOS. 20-1388 & 20-1388-A, THE HONORABLE JOE POOL, JUDGE PRESIDING
MEMORANDUM OPINION
Appellant W.G. (Mother) appeals from the final orders terminating her parental
rights to her sons Derek, born in June 2010, and Yuri, born in September 2019. 1 C.G. (Father)
appeals from the final order that named him possessory conservator of Yuri, with
supervised-visitation rights. As explained below, we affirm the orders.
1 For the children’s privacy, we will refer to them by aliases and to their family members
by their relationships to them. See Tex. R. App. P. 9.8.
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PROCEDURAL AND FACTUAL SUMMARY
In July 2020, after several instances of domestic violence between the parents in
the presence of at least one of the children, the Department sought and was awarded
conservatorship of the children. Derek was placed with his father, from whom Mother had
divorced several years earlier, and Yuri was placed with his paternal aunt (Aunt). The Department
eventually changed its goals from family reunification to asking that Mother’s rights be terminated,
and that Father be named possessory conservator with supervised visitation. In January and
March 2022, the associate judge held a final trial, severing the proceedings related to Yuri into a
different cause number at the end of trial. On May 18, 2022, the associate judge signed final orders
terminating Mother’s parental rights to both boys, finding that termination was in the children’s
best interest and that Mother had placed or knowingly allowed them to remain in conditions that
endangered their well-being; engaged in conduct or knowingly placed them with others who
engaged in conduct that endangered their well-being; and failed to comply with a court order
establishing specific actions necessary for Mother to regain custody following the boys’ removal
for abuse or neglect. Father was appointed Yuri’s possessory conservator, Aunt was appointed
Yuri’s sole managing conservator, and Derek’s father was appointed Derek’s sole managing
conservator. After the parents sought de novo review, the referring court held a de novo hearing
in January 2023 and soon after signed orders affirming the associate judge’s orders. These
appeals followed.
In the trial before the associate judge, Officer Matthew Michaelson of the Kyle
Police Department testified that he responded to an altercation between Mother and Father on
March 16, 2020. Officer Michaelson stated that Mother told the responding officers that she and
Father had been arguing and that Father had kicked her and struck her in the head. He also testified
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that both children were present and had witnessed the assault. Father was arrested for assault
causing bodily injury to a family member, and Officer Michaelson filed for an emergency
protective order on Mother’s behalf and notified the Department about the incident.
Officer Gabriel Vasquez of the Austin Police Department testified that he
responded to another altercation that took place between the parents on June 30, 2020. When he
arrived on the scene, he saw Father running away from the area. Father was limping, crying,
“hunched over his injuries,” and out of breath. Officer Vasquez spoke to both parents and testified
that Yuri was present, either in a car or in Mother’s arms. Father reported that Mother had hit him
repeatedly “in the face with a closed fist and kicked him in the groin” and that he was running
away when the police arrived because “he was trying to get away from his wife” because Mother
was hitting him; Mother admitted that she “had slapped him in the face because of him talking to
her in a disrespectful manner.” Officer Vasquez was asked whether he noticed anything about
Mother’s behavior to raise concerns about her mental health, and he responded, “Some of the
statements she was saying were not making sense.”
Officer Vasquez testified that Yuri had been present during the assault. He
explained that he was concerned about the child because it was hot, the individuals had “been out
there for some time,” and Yuri’s face was sweaty and “was getting red and flushed.”
Officer Vasquez asked Mother to remain in the shade or in her car with the air conditioning
running, but Mother responded several times “that the child was fine.” Officer Vasquez was also
concerned about Yuri’s safety because of Mother’s behavior and “was trying to formulate a plan
how to retrieve the child safely and get—give [Father] the child. We didn’t know how she was
going to act once she found out she was going to be placed under arrest.” Officer Vasquez did not
believe that Mother’s erratic behavior was due to drugs or alcohol.
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Kyle Police Officer Donald Lovelace testified that he responded to a disturbance
call on February 20, 2022, in which Mother assaulted the daughter of her landlord by pushing her
during a dispute after the landlord asked Mother to move her car. Mother told Officer Lovelace
that she did not want to move her car “due to there being an owl in one of the vehicles. And she
had a prior experience, a negative experience with an owl or something with an owl based off of
an abortion someone had.” After speaking with the people at the scene, he tried to place Mother
under arrest for assault, Mother pulled away “to a point where we had to pin her up against the
wall to effect the arrest.” Officer Lovelace said that “there appeared to be some sort of mental
health concerns” and did not believe that Mother was under the influence of drugs or alcohol.
Amanda Mason, a Family Based Safety Services worker with the Department,
testified that when she was assigned to the case in April 2020, after Father’s arrest for assaulting
Mother, the parents had already been referred to parenting classes, Father had been referred to
anger management classes, and Mother had been referred to a psychological assessment. The
initial concerns were “[t]he domestic violence and unhealthy relationship between [Father] and
[Mother], concerns also with their young child, [Yuri], being present during those incidences, and
also [Mother’s] untreated mental health.” The Department decided to seek the children’s removal
in late June, before Mother’s arrest for assaulting Father, “after the parents had been completing
some services but were not fully cooperative with the Department, as far as following safety plan
recommendations.” The parents would not agree to a safety plan and instead “had tried to reconcile
their relationship on their own plans,” resulting in “domestic violence altercations that had
continued since the [emergency protective order] expired in May.”
The Department sought the children’s removal after Mother was arrested for
assaulting Father on June 30, 2020. Mason testified that after Mother was released from jail, Father
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picked her up, telling Mason that “he was her husband and he was going to support her,” and
Mason had concerns about the parents’ relationship due to “domestic violence and their inability
to stay away from each other.” In addition, Mason testified that in her interactions with Mother,
Mother was “very easily irritable,” “would not allow us access into her home after a period of time
to assess the children,” and would “cut off conversations” with Derek that were intended to assess
the safety of the home. Finally, Mason testified that Derek made outcries that Mother had hurt
him by “bending his fingers back to the point of hurting” and “[p]inching his face,” and said he
did not want to see Mother.
Department supervisor Kalyn Noyes was the family’s caseworker from September
2020 until September 2021. She testified that when Mother was arrested in June 2020, Derek was
placed with his father, whom he had not seen in years. Derek appears to have bonded with his
father, who had complied with his service plan, and Noyes had visited Derek in his father’s home
and had no concerns about the home or the relationship between Derek and his father. Noyes
testified that during her time on the case, Derek “was very clear that he did not want to see his
mom. He did not want visits. He wanted to stay with his dad. He felt safe and he wasn’t worried
about anything happening to him at his dad’s house.”
Noyes said that Derek unexpectedly made one request for a visit with Mother in
March 2021 after always before saying that he did not want to see her, but shortly before the
would-be visit, he changed his mind and said he did not want to see Mother. “[A]fter further
talking with the child advocates and the child’s therapist,” Noyes said, “we did not pursue the
visit.” Noyes later learned that Derek had “requested the visit because he was promised a Pokémon
card that he had been wanting,” and she testified that the Department was “worried that [Mother]
was trying to bribe him into have a visit specifically for that Pokémon card.” In addition, Noyes
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said, Mother continued to send text messages to Derek on his phone, despite being ordered not to
contact him, and had instructed Derek to delete her messages. Noyes further testified that Derek’s
school became concerned about Mother in October 2020, when she set up a parent-teacher
conference insisting that he needed to stay after school for tutoring when the school did not believe
he needed that service. Because Mother “was trying to get the school to keep him there after
hours,” the school was worried that Mother “was going to be there and try to pick [Derek] up or
locate him and speak to him” after Derek “had been very clear he did not want that.” Noyes also
testified that Mother went to the school at some point to try to drop off books for Derek, in violation
of a court order that she not approach Derek or go to the school.
Noyes testified that in addition to the incidents of domestic violence between the
parents that led to the children’s removal, other altercations took place after the children were
removed: in October 2020, when Father left the home after an argument, Mother “chased him out
of the house and bashed in his driver’s side window with a hammer,” and his car was keyed
overnight after he went to his parents’ house; in the spring of 2021, Mother slapped Father during
an argument; and again in the spring of 2021, after an argument about finances, Father woke up to
find the word “dinero” had been keyed into his vehicle. Noyes was not aware of any altercations
between the spring 2021 incidents and her transfer off the case in September 2021.
Noyes testified that during her time on the case, Mother had not complied with the
court orders that might allow her to regain custody. Noyes was concerned about Mother’s mental
health because of her past hospitalizations and reports that “she had suffered with anxiety and
depression, and what she was using to treat those mental health concerns, and how it was affecting
her relationship and her everyday life,” but Mother had not addressed her “[o]ngoing mental health
needs,” telling Noyes that she did not believe she had such needs. Nor had Mother given
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permission for the Department to obtain her psychiatric records from before the Department’s
involvement. In addition, Mother did not always make her visitations with Yuri, did not always
provide an explanation for missing a visit, and was initially uncooperative, refusing to provide her
address so that Noyes could visit her residence. Noyes agreed that Mother had participated in
therapy, had been successfully discharged from therapy, and had completed a lengthy domestic-
violence-prevention class, but Noyes believed Mother had read her service plans like “a checklist”
and had not changed her behavior in response to her services.
As for Father, although he had completed his services, Noyes said that he had
continued to engage in a relationship with Mother despite the Department’s “domestic violence
concerns.” Noyes did not agree when asked whether Father had shown that he had learned from
services when he said he ceased his relationship with Mother in the spring of 2021 because “in
June or July they were, again, in a relationship,” and both parents had told her “that they wanted
to continue their relationship because they loved each other.”
Noyes explained that the Department was seeking to terminate Mother’s rights and
limit Father’s rights despite their having engaged in and completed many services because the
parents had not shown “behavioral change throughout the case” and there had been “no changes
that we could safely recommend a child returning to that environment.” Noyes said that there were
“ongoing concerns regarding the relationship between the parents,” noting that there had been
many arguments and “multiple incidences—incidents throughout the case that resulted in damages
to vehicles, physical—physical altercations between the parents.” Noyes also said that court orders
related to contact between the parents or between Mother and Derek did not seem to affect the
parents’ behavior, saying, “It’s a piece of paper to them.” She testified that there was a “pattern
of behavior” in which the parents would insist that they were no longer in a relationship but “then
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two to three months later, we’re going to have another incident of domestic violence. And that
was just a—a repeated pattern. There were no behavioral changes. They weren’t learning anything
from services, it appeared.” Noyes said, “It was—it was a safety concern to send a child back to
the environment.”
Noyes testified that the Department believed that it would significantly impair
Yuri’s physical and mental health if Father were appointed his sole managing conservator. The
Department asked that Aunt be named Yuri’s sole permanent managing conservator because she
had “been able to show that she’s protective of [Yuri],” was meeting his needs, and was “able to
maintain a healthy relationship with her brother in regards to [Father] and [Yuri].” Noyes had
spoken to Derek about the possibility of termination of his mother’s rights and what that would
involve, and “he was like, well, I—I really don’t want to see her, so what would be the big
difference.” She said, “He’s happy with his dad and he is very scared that one day he won’t be
with his dad. So, he’s—he’s been very consistent that he wants to stay there.”
Department caseworker Francisca Jaramillo had been the family’s caseworker
since September 2021. She testified that Mother had not completed her service plan, explaining
that Mother had completed several courses but “has not done a behavioral change such as
individual therapy. She hasn’t maintained her mental health. I’ve asked for her to provide
documentation that she’s keeping with her mental health and she has not done so.” Mother had
not provided records from her mental-health providers, told Jaramillo that she would not sign a
release form, and had not discussed with Jaramillo whether she was taking any medications.
Jaramillo had neither observed any visits between Mother and either of the children, nor had she
visited Mother’s residence. Mother had stopped having consistent visits with Yuri by the time
Jaramillo was assigned, and Jaramillo said:
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She would say she was going to be at the visit and then cancel last minute. And
then when asked about it, she said she’d contact her attorney. And then I asked her
again why she did not want to have visits with [Yuri], and she said because the case
was almost over and she didn’t want it supervised by the Department.
Jaramillo testified that the Department was asking that Mother’s rights be terminated because of
her mental health and “her ongoing criminal activity.”
Father had completed his safety plan, but Jaramillo was concerned that he may still
be in a relationship with Mother. She explained that although there was no evidence that the
parents were still together, “in October, [Mother] was asking for [Father] to return back into her
home. When I would ask [Father], he would deny the relationship, but he did say that if her mental
health was right, then maybe. So, that is a concern that there was that possibility.” Father was
having weekly unsupervised visits with Yuri, and there was no indication that Father was allowing
Mother to see Yuri during those visits. Jaramillo believed that it was in Yuri’s best interest to
maintain his relationship with Father but for Father’s rights to be limited.
Arnold Martinez, Derek’s therapist, had been working with Derek for about a year.
Derek had improved in terms of his self-esteem, anger management, and depression, and Martinez
testified that Derek “has an outstanding relationship with his father” and was happy in his father’s
home. Derek has a “very positive, encouraging, supportive relationship” with his father and is
“thriving” in that placement. As for Mother, Martinez said that Derek “doesn’t want to associate
with [Mother] . . . and basically doesn’t want anything to do with her.” Derek “still harbors a lot
of resentment and anger towards” her, has said that “he’s afraid of her,” and “told [Martinez] that
he’s worried and depressed at times because he feels that he’s going to be forced to reunite with
his mother.” Derek told Martinez about instances in which Mother “was abusive towards him.
Also drugs [were] involved and that she had psychotic—is not a stable parent.” He had described
“several instances where he got slapped,” the incident in which Mother bent his hand backwards,
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and “general verbal and physical abuse,” and he told Martinez that Mother had been abusive to
him “all his life.” Martinez testified that Mother’s “behavioral unpredictability” and “anger
episodes” had frightened and “traumatized” Derek and that Derek feels “rejected” by Mother due
to her abusive behavior. Martinez believed it was in Derek’s best interest for Mother’s rights to
be terminated.
Mother testified that she and Father ended their relationship in March 2020, when
the Department began its case but later tried to reunite and “asked for help with, like, marriage
counseling and family counseling.” Mother testified about her June 30 assault on Father, saying
that she and Father had been “stressed” and arguing over a couple of days and “wanted help, like
family counseling,” because they were both dealing with feelings of jealousy. Mother was trying
to tell Father about “something that had happened to [her] when [she] was younger,” and when he
“began yelling some really mean things at” her, Mother slapped and punched him while she was
carrying Yuri. Mother testified that she “was in deep regret and deep remorse after” and that she
recognized that it was “really stupid of [her].”
Mother testified that she is bipolar and has post-traumatic stress disorder and said
she was “seeking counseling and therapy and medicine.” She had completed an intake with
Dr. Reynolds about a week before trial, explaining that she had done an earlier intake with him
about a year and one-half earlier but had to change to another doctor when she moved from Hays
County to Austin; she had just returned to Dr. Reynolds because she had moved back to
Hays County. Mother had been prescribed two medications but did not like the side effects, so
she stopped taking them about a month before trial, and she testified that she was going to ask for
a new prescription when she returned to Dr. Reynolds in about ten days.
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Mother testified that Derek was not telling the truth when he claimed she had bent
his hand back. She said that he had been yelling at her, calling her names, and getting in trouble
at school, and after he threw his phone at her, she only “squeezed his hand” and had not bent it
back. Mother testified that she and Derek had an understanding that she would “repeat something
to him four or five times,” and that if he did not listen and do what she asked, she would raise her
voice and “there’s either a timeout or his phone is taken away or PS4 is taken away. There’s a—
an order of discipline.” Mother also testified that Derek had been falsely told that Mother had not
let him see his father, saying, “I understand that he’s trying to say that I’m crazy and I’m this and
I’m that, but he is ten years—he was ten years old when this started. And he is hearing these things
from other people.” Mother stated that all her visits with Yuri had gone well except for one in
which she got frustrated with the person who was supervising the visit, asking him to stop coming
into the room and instead to just observe through the mirror and cameras. When the man ignored
her requests to leave, she swore at him and told him to get out. However, she testified, she was
able to calm herself down and continue the visit. Mother also testified that she had been blamed
for being late to a visit when the caseworker acknowledged to her that he had gotten the time
wrong and had picked the child up early.
Mother acknowledged that she had keyed Father’s car and smashed his window,
but stated that the car belonged to both of them and that she had broken his window because he
“had taken something without [her] permission” and refused to give it back. In addition to her
altercations with Father, Mother testified about an incident that occurred between her and a
neighbor in January 2022, shortly before trial. She initially had a good relationship with her
neighbors but “one day I was in a hurry and I was going up the stairs and I asked—I asked the man
to—I said, ‘Hey, watch out.’ And he said, ‘You watch out.’ And he yelled at me and he snared
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[sic] at me and I—I just—I kept walking.” Later, she saw the neighbor walking his dog, who “was
happy and she was frolicking and he choked her on purpose.” “[F]or a couple of months, [she]
noticed things that he was doing,” and Mother testified that one day, when she was going for a
walk at the same time the neighbor was walking the dog,
he was looking at me very angry. And I . . . moved the dog out of the way and I
said, ‘Don’t do that.’ And I walked away. And when I got back to my apartment,
I knocked on the lady’s door, his wife’s door, and I told her, I said, ‘Hey, I just
pushed your husband.’ And she said, ‘What?’ She yelled at me and she said, ‘Why
did you do that?’ And I told [her] why I did that. And she called the police.
Mother denied that she had kicked him and punched the neighbor in the stomach. She was kicked
out of the apartment complex as a result of the incident.
Mother also testified about her February 2022 arrest for assault on her landlord’s
daughter, asserting that her landlord asked her to move her car but that she was tired and wanted
to have dinner, so she instead made a joke in Spanish about owls because her landlord had asked
her to teach him Spanish. Mother went inside to eat dinner and texted her landlord that she would
move her car later, but his daughter started banging on her door and screaming at her that she had
to move out. Mother testified that she simply shoved past the woman when she would not move
out of Mother’s way.
Mother believed that she had fully complied with her service plan and the court’s
orders and asserted that she had proven that she could take care of herself and her children. She
testified that she had paid child support to Derek’s father throughout the case, although she
conceded that she had not paid him in February or March 2022 or given him half of her stimulus
check as ordered. She also conceded that she had not maintained face-to-face contact with her
caseworker or reported her February 2022 arrest to the caseworker—she said she instead reported
it to her attorney because every time she had questions, the caseworker would tell her to ask her
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attorney. Mother denied that she had gone to Derek’s school and said she only had emailed about
a book she wanted his teachers to sign. Mother claimed she had signed a release form for her
medical records, denied using drugs, said that Derek was lying when he made that allegation to his
therapist, and denied interfering with Derek’s father’s visitation rights. Mother had lived in five
residences during the case and at the time of trial was renting a single room in a house; two other
men lived there, and although Mother did not know them, she thought it was a safe and stable
environment for a child because she had her own space. Mother testified that she had been
employed by Circle of Care as a children’s speech therapist since 2019 but that she had not
received a paycheck from them since April 2021 because the speech language pathologist who
was supposed to supervise Mother’s work had decided she was too busy to do so. Mother had
“just started back up with Circle of Care because there was a willing supervisor who could
supervise me on her license.” In the meantime, she had worked one job “for three or four days”
before being informed that they were not busy enough to keep her on; had been a substitute teacher
in Hays Consolidated Independent School District; and had worked as a bus monitor.
Mother believed that her mental health was under control and insisted that she had
“never had an anger management problem.” Mother had “remembered some memories that [she]
had suppressed” and got “angry at a lot of people” but had since learned to cope and “to forgive
[herself] for what happened to [her].” Mother was not concerned that she and Father had engaged
in domestic violence in the presence of the children. Asked if she and Father were still trying to
continue their relationship, Mother responded, “At this point I’m just not sure. There’s a lot of—
I answered the question. No. To answer that, no.” Later in her testimony she reiterated that she
and Father did not intend to continue a relationship. Mother and Father had filed for divorce, and
that proceeding was pending at the time of trial.
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Father admitted that he and Mother had engaged in domestic violence in the
children’s presence and testified that an environment of violence was not safe for children. He
said, “It wasn’t, like, often. It was just, you know, like any normal couple. But yeah. We made
a mistake twice or three times when we did it in front of the child—of our children.” Father
testified that he last saw Mother in early 2021: he and Mother had signed a year lease on an
apartment—the same apartment she was kicked out of after assaulting her neighbor—but he only
lived there for a month and left after the last incident of violence in about March 2021. Father
moved in with his parents and was still living there at the time of trial.
Father testified that he had completed his services, including a psychological
evaluation, which did not recommend other services, and a batterer’s intervention course, which
taught him to listen before he reacts and to walk away from confrontations. Father was working a
steady job, paying child support, and regularly visiting Yuri, and his only pending criminal issue
was the pending March 2020 assault charge. Father had met Derek’s father in the past and said he
did not have any problems with him and could help Yuri and Derek maintain their relationship.
During his marriage to Mother, Father rarely saw Derek’s father pick Derek up for a visit,
“[p]robably once or twice in almost three years,” and Father testified that Derek often expressed
disappointment in not having more visitations with his father.
Father believes Mother has problems with anger management and did not know if
she had addressed her mental-health issues, saying, “I think she did mention that, yeah, she has
anger management and—but the other stuff about the mental health, I don’t know. I’m not a
specialist on that. . . . I just know that, you know, all humans are triggered for something.” He
did not believe that Mother posed a danger to her children: “It’s just—you know, our biggest
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mistake was just argue and fight and all this. Argument about stupid stuff. . . . [B]ut as far as her
being a mother, I don’t think—I don’t think so.”
Aunt testified that Yuri had lived with her since his removal in August 2020, when
he was ten months old. Yuri was doing well, was growing and developing quickly, and did not
have any developmental or medical issues. Aunt had observed Father with Yuri and said that he
is a good father and that her only concern is that she is not sure that he is no longer with Mother.
Asked why she thought the parents might still be in a relationship, Aunt answered, “It’s just
something that I think. I’m not sure.” Aunt thought there was “something wrong with” Mother,
but she testified that it would be Yuri’s best interest to maintain a relationship with Mother, saying,
“It’s his mom.” Aunt testified that she was committed to providing a safe and stable home for
Yuri and that she would follow all orders related to visitation and contact.
Court appointed special advocates (CASA) supervisor Elizabeth Medellin testified
that she and CASA recommended that termination of Mother’s rights was in the best interest of
both children. She explained that Mother “struggles to accept the reasons for removal and her—
and her role entirely. I think she struggled to maintain her mental health throughout the duration
of the case, which is cause for concern.”
Medellin had spoken with Derek about his wishes, and he “has consistently
expressed not wanting to have any contact with” Mother. Derek’s father’s home was appropriate
and meeting all of Derek’s needs. Asked why Derek’s father had so few visits with the child before
he was placed in the home, Medellin said, “I’ve heard different stories from all of the parents. And
so, I understand that there’s truth that lies in there somewhere, but I believe all—that they’re
probably both at fault for that.” Medellin had discussed sibling visits with Derek and his father,
and the brothers had one visit, but Derek “really didn’t want to entertain the idea.” CASA was
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concerned that Derek went from living with Yuri and Mother to “all of a sudden not wanting to
see either one,” but Medellin said that Derek’s therapist had “address[ed] parental alienation” and
“ruled it out.”
Medellin had witnessed visits between Yuri and each of his parents and said that
the visits went well, and that Yuri appeared bonded to both Mother and Father. Medellin testified
that Aunt “does a very good job of being protective” of Yuri but that “there is a possibility of
[Father] and [Mother] potentially getting together and kind of ganging up on her, like kind of
pushing her a little bit, which is another reason that I think it would be in the best interest to kind
of separate them further.” CASA recommended that Yuri be placed with Aunt, with Father having
supervised visitation rights, and Medellin explained:
I think that [Father] has understood his role in the removal of [Yuri]. And I believe
that he has made efforts to change his—his own behaviors. But I do think that—in
my opinion, I think he struggles a bit because he has expressed to me that he wants
[Mother] to continue to be a mother to his son, which is understandable. But I think
that he struggles a bit in—in understanding appropriate boundaries with that and
being able to be a protective parent. I think he struggles actually putting [Yuri] first
before his relationship with [Mother].
She said that CASA was concerned that if Father had unrestricted access, he would allow Mother
to be around Yuri. Medellin explained that in late August 2021, Father told her that “he still does
keep in contact with [Mother] from time to time. And that he does help to financially support her
if she is needing assistance with that.” Medellin said, “I think that he struggles just to sever that
tie.” And although the parents had filed for divorce, Medellin was not sure “if that’s something
that he’s actually wanting to stick with. So, there is some concern there.” Medellin said Father
“wants [Yuri] to have his mother in his life, which is completely understandable. I think that
maybe he underestimates the severity of [Mother’s] condition and the safety concerns that that
poses to his child.”
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Derek’s father testified that he and Mother stopped living together in mid-2017,
when Derek was about seven. During their time together, Mother was once admitted to a mental
hospital for about two weeks. He was granted visitation rights in the divorce and said he tried to
exercise visitation “as much as I could without sacrificing the mental health of my son,” explaining
that every exchange involved conflict with Mother or Father. At the time Derek came to live with
his father, it had been “a few years” since they had seen each other, although Derek’s father also
said he thought he had seen Derek “a couple of times” or a “handful of times” in 2018, 2019, and
2020. He had never had any interest in co-parenting with Mother, testifying, “I didn’t feel safe
around her or her husband.” He explained that Father was always present during exchanges and
that Mother had told him that Father “was part of an organization and that he’s dangerous and this
and that.” He also testified that in one exchange “she was very upset with me and that she was in
my face. Almost to the point where she was going to hit me. And I—I had to—I just had to leave.
And this is in front of [Derek].” Derek’s father said that he did not think Derek was safe when he
lived with Mother and Father but had lacked the financial resources to take Mother to court; he
once called child protective services to initiate a welfare check. Derek’s father said that Derek
“just wants to be with me and he doesn’t ever want to leave and he has no desire to visit with his
brother or his mother.” Derek worries that Mother “is going to show up and sign a paper and take
him away,” and his father said, “All I can do is reassure him and that, you know, nobody is going
to take you away. [Y]ou’re safe. He’s an 11-year-old kid that’s smart.” Derek was doing well in
school and sports, he has developed friendships while living with his father, and his father’s job
allows him the flexibility to spend a good amount of time with Derek after school. His father
testified that when Derek first came to live with him, he was “like a lost boy almost. He wanted
to be next to me like all—all the time. Whereas now, he still wants to spend time with me all the
17
time, but he’s confident and, you know, outgoing and he’s, I guess, himself. His—his youth self.”
He worried that if Derek were required to have visitation with Mother, he would lose “the
progression that he’s had and how far he’s come to overcome the challenges that he’s had, given
everything that’s happened.”
At one point during the testimony, the associate judge said:
And just for the record, folks, I took [Father] off the video a good while back
because his—signals he was making and things he was doing to signal answers, et
cetera. And, [Mother], I just took her off because she started doing the same thing.
But her behavior—I want this to be on the record. Her behavior during the other
testimony was most bizarre. She was reading a book for a big portion of the
testimony and then she got up and left the room for a good bit of time. So, you
have to—if you’re in court, you have to act like you’re in court, folks. Okay?
And after the conclusion of the evidence and the attorneys’ closing arguments, the judge stated
that “based on [Mother’s] failure to comply with my court orders, my observing her bizarre
behaviors, I don’t have confidence that she would follow any rules that this Court set down,
especially if she wasn’t coming back to the court.” The associate judge also said, “I believe that
[Father] did try to intimidate [Derek’s father] during pickup times. I believe [Mother] told
[Derek’s father] that [Father] was a member of a—an association in order to put fear in him.”
When discussing her decision about Father’s parental rights, the judge stated, “[Father], everyone
has managed to tell me that you deserve another chance. And if even one of these people had
suggested that I terminate your parental rights, I would have.” The judge urged Father to “look
into your lifestyle, the way you treat the people around you,” and cautioned him that if he tried to
intimidate Aunt, he would lose his visitation rights altogether. The associate judge signed orders
terminating Mother’s rights to both children under subsections (D), (E), and (O); appointing
Derek’s father as the child’s sole managing conservator; appointing Aunt as Yuri’s sole
18
managing conservator; and appointing Father as Yuri’s possessory conservator with rights to
supervised visitation.
In the de novo hearing in January 2023, Mother testified that she and Father were
separated and that their divorce proceeding was still pending. She said that the case started because
“I slapped my ex. I’m not proud—I’m not proud of slapping my ex . . . but I did slap him,” and
testified that she had seen two therapists, completed a protective parenting class, completed a
batterer’s intervention course, and signed releases for the Department “to obtain all the documents
related to [her] services.” Mother was working at a barbeque restaurant, where she had started one
week earlier, and had moved into a new residence in May, which has an extra bedroom for the
children. She testified that if the children were returned, Derek would attend a public school very
near to her residence, and she would find a day care for Yuri. She did not believe that Derek did
not want to see her and said that “there was a time where he did text me and he did say that he
wanted to spend time with [Mother] and his brother.” Mother testified that she had completed all
her services and wanted her children returned to her but said that she would accept it if she were
only granted visitation.
Mother was asked if she was currently seeing a psychiatrist, and she answered,
“The clinic is right down the street. And I call the lady—the secretary lady every once in a while.
She’s very, very kind. I did continue services afterwards, and I was cleared by the doctor. He said
I was clear to work.” Mother testified that she had been diagnosed with bipolar disorder and
occasionally would “get sad and depressed” but said her doctors had not put her on medication:
“My doctor left it up to me. He said . . . you can exercise. You can go to the park. You can
practice what you choose. He left it up to me, honestly.” She later clarified that she had been
prescribed something for bipolar disorder but did not like the way it made her feel. She “switched
19
the medication several times” while working with her therapist and doctor, and said she was told,
“If you choose to exercise, if you choose to get vitamin D, if you choose to eat healthy and follow
those routes and those alternatives, then that’s your choice.” However, she conceded, her doctor
did not “necessarily tell [her] not to take [her] medication.”
Mother denied that she had a “continuing pattern of domestic violence.” Mother
described the January 2022 incident with her neighbor, saying that when she walked by him, his
dog growled at her, and she “pushed the dog away” because she did not want the dog to bite her.
She denied that she had kicked and punched the neighbor but said she would not be surprised that
the police report says that she had. As for the February 2022 incident with her landlord’s daughter,
Mother did not know if she had a charge pending related to the altercation, which she described to
the referring court as follows:
When I had moved in with a roommate [and] I was trying to get back inside of my
room and his daughter would not let me go back in my room and get my phone and
my keys to leave. And it was actually her dad’s birthday and—I was just very
confused at what was going on. I—I did not know prior before I moved there that
his wife had passed away and that his best friend had killed himself in front of him.
And just with living there with him, I—I did not feel comfortable living there with
him for the two weeks that I was there.
And when his—when his daughter arrived, she was yelling at me to get the fuck
out and to leave and—she was standing in my face and yelling at me for about five,
seven minutes. And I was asking her nicely to please get out of my face. And then
at one point, I was just observing her. And I was like, oh, my gosh—like, you
probably just need a hug. Like, your mom passed away a few years ago.
And I—you know, like, you’re—so I said, Can I hug you? Are you okay? And
she’s like, No, you can’t. And she—she kept getting in my face. And when she
physically put her hands on me, I pushed her back so I could get back in my room
and get my keys so I could leave. And she yelled and she said that I hit her; and
she ran to her dad. And she—she told her dad, She hit me, she hit me.
And they called the police and the police showed up. And I just—I told the police
what happened; and they wouldn’t let us, like, stand together where I could say, I
did not hit you. You were hitting me and you were yelling in my face.
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Mother further testified that she had been arrested for criminal trespass in July 2023 due to a
“miscommunication” with the parent of a client to whom she was providing speech therapy and
denied that she had “picked up a child and [was] trying to leave with someone else’s child.”
Medellin testified at the de novo hearing, explaining that since the March 2022 trial,
she had stepped down as a supervisor and had become the children’s CASA volunteer to “keep
consistency with the case.” Medellin’s concerns related to Derek “have been very consistent
throughout the case”—Derek had said “time and time again that he does not want to have any
contact with his mother. He does not want to pursue a relationship with his mother. He has gotten
to the point where he’s actually asked us to stop asking him about his mother.” Medellin was
asked about the time Derek wanted to see Mother, and she said, “My understanding was that he
was wanting to get items from his mother,” and it later “came across through other evidence that
was introduced that he had had that conversation with other individuals; and that his mother had
been talking to him about giving him those Pokémon cards that he wanted.” Medellin thought that
it was in Derek’s best interest for Mother’s rights to be terminated.
Medellin further said that in November 2022, Mother “forcibly entered the home
of [Yuri’s] placement,” resulting in the police being called, and testified that Mother had
“consistently shown that she does not follow court orders.” Medellin did not think Mother was
“quite aware of the safety concerns that she poses to her own children,” so she recommended that
Mother’s rights to Yuri be terminated. As for Father, Medellin testified that she believed it was in
Yuri’s best interest for Father’s visits to continue to be supervised.
Following the de novo hearing, the referring court signed an order affirming the
associate judge’s orders. On appeal, Mother challenges the legal and factual sufficiency of the
findings of statutory grounds and the finding that termination of her rights is in the children’s best
21
interest. Father argues that the evidence is legally and factually insufficient both to overcome the
presumption that he should be named a managing conservator of Yuri and to support a finding that
his visitations should be supervised.
MOTHER’S ISSUES
Mother challenges whether the evidence established that she endangered the
children through her conduct and through the environment in which she placed them or allowed
them to remain or she failed to comply with a court order setting out the actions necessary for her
to regain custody; that termination is in the children’s best interest; or that it is not in the children’s
best interest for her to be appointed their conservator.
We review the sufficiency of the evidence supporting a trial court’s termination
decree under well-established standards. The Department must prove by clear and convincing
evidence that the parent engaged in conduct that amounts to at least one statutory ground for
termination and that termination is in the child’s best interest. Tex. Fam. Code § 161.001(b). Clear
and convincing evidence is “the measure or degree of proof that will produce in the mind of the
trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.”
Id. § 101.007; In re A.C., 560 S.W.3d 624, 630 (Tex. 2018). “The distinction between legal and
factual sufficiency lies in the extent to which disputed evidence contrary to a finding may be
considered.” A.C., 560 S.W.3d at 630. In reviewing legal sufficiency, we view the evidence in
the light most favorable to the factfinder’s determination, including undisputed contrary evidence,
and assume the factfinder resolved disputed facts in favor of its finding. Id. at 630–31. In
reviewing factual sufficiency, we weigh the evidence favoring the finding against disputed
evidence and consider whether the evidence “a reasonable factfinder could not have credited in
favor of a finding is so significant that the factfinder could not have formed a firm belief or
22
conviction that the finding was true.” Id. We must “provide due deference to the decisions of the
factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter
when assessing the credibility and demeanor of witnesses.” In re A.B., 437 S.W.3d 498, 503 (Tex.
2014); In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005).
Statutory Grounds
Stability and permanence are paramount in the upbringing of children,
In re M.E.-M.N., 342 S.W.3d 254, 263 (Tex. App.—Fort Worth 2011, pet. denied), and a course
of conduct that subjects a child to a life of uncertainty and instability endangers the child’s
well-being, A.C. v. Texas Dep’t of Fam. & Protective Servs., 577 S.W.3d 689, 699 (Tex. App.—
Austin 2019, pet. denied) (quoting Jordan v. Dossey, 325 S.W.3d 700, 723 (Tex. App.—Houston
[1st Dist.] 2010, pet. denied)). Subsection (D) focuses on the child’s physical environment, and
the parent’s conduct can be a factor in producing an environment that threatens the child’s
well-being. J.G. v. Texas Dep’t of Fam. & Protective Servs., 592 S.W.3d 515, 524 (Tex. App.—
Austin 2019, no pet.) (quoting In re M.D.M., 579 S.W.3d 744, 764 (Tex. App.—Houston [1st
Dist.] 2019, no pet.). In considering subsection (E), “the focus is on the parent’s conduct—
including acts, omissions, or failures to act—and, specifically, on whether the evidence shows that
the parent engaged in ‘a voluntary, deliberate, and conscious course of conduct’ that endangered
the child’s physical or emotional well-being.” V.P. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-19-00531-CV, 2020 WL 544797, at *4 (Tex. App.—Austin Feb. 4, 2020, no pet.) (mem.
op.) (quoting Tex. Fam. Code § 161.001(b)(1)(E)). “A single act or omission can support
termination under subsection (D), but termination under subsection (E) must be based on “a
voluntary, deliberate, and conscious course of conduct.” J.G., 592 S.W.3d. at 524. Evidence of
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domestic violence may weigh in favor of a finding of endangerment under subsections (D) and
(E). See id.; In re P.W., 579 S.W.3d 713, 727 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
Mother argues that the evidence is legally and factually insufficient to show that
she endangered her children by her own conduct or by their environment. However, she
downplays or omits evidence that Derek claimed to have been abused for years, including his
allegation that Mother bent his hand backward; that she and Father engaged in repeated instances
of domestic violence while at least one child was present, altercations that resulted in first Father’s
and then Mother’s arrest; that Mother’s mental health was concerning to law enforcement and
Department witnesses; that Mother never provided a release so that the Department could fully
assess her mental health; and that Mother continued to have altercations with Father and other
individuals and was arrested twice after the children were removed. Although Mother notes that
she refuted many of the Department’s allegations and attempts to discount some of the evidence
against her, the associate judge and referring court heard the testimony of the various witnesses
and were entrusted with weighing the witnesses’ credibility and determining how to resolve
disputes in the evidence, and we cannot second-guess those decisions. See In re J.F.-G.,
627 S.W.3d 304, 312 (Tex. 2021) (“Because the factfinder ‘is the sole arbiter of the witnesses’
credibility and demeanor,’ appellate review must defer to the trial court’s factual determinations,
even in parental termination cases.” (quoting In re J.O.A., 283 S.W.3d 336, 346 (Tex. 2009))). We
also note that the associate judge observed on the record that Mother’s behavior during the trial
was “bizarre.” Based on this record and the deference we must pay to the factfinder’s
determinations related to credibility, the associate judge and referring court could have found by
clear and convincing evidence that Mother, by her continuing to engage in domestic violence with
Father, continuing to maintain that unstable relationship, and failing to attend to her mental health,
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endangered Derek and Yuri—both by her course of conduct and by placing them in an environment
that threatened their well-being. See, e.g., T.A.W. v. Texas Dep’t of Fam. & Protective Servs.,
No. 03-20-00364-CV, 2021 WL 81866, at *4 (Tex. App.—Austin Jan. 8, 2021, pet. denied) (mem.
op.) (evidence of parent’s mental instability or of domestic violence in home can support finding
of endangerment under (D)); R.Z. v. Texas Dep’t of Fam. & Protective Servs., No. 03-14-00412-CV,
2014 WL 5653272, at *6 (Tex. App.—Austin Oct. 29, 2014, no pet.) (mem. op.) (evidence of
illegal drug use, domestic violence, and criminal activity by mother can support finding of
endangerment under (E)). We overrule Mother’s first issue.
Best Interest
We review a trial court’s best-interest determination in light of the considerations
set out in Holley v. Adams, taking into account the child’s wishes, their emotional and physical
needs now and in the future, present and future emotional or physical danger posed to the child,
the parenting skills of those seeking custody, any programs available to assist those seeking
custody to promote the child’s best interest, plans for the child’s future, the stability of the home
or proposed placement, conduct by the parent that might show that the parent-child relationship is
inappropriate, and any excuses for the parent’s conduct. 544 S.W.2d 367, 371–72 (Tex. 1976).
The Holley factors are not exhaustive and need not all be proved, and a lack of evidence about
some of the factors does not “preclude a factfinder from reasonably forming a strong conviction
or belief that termination is in the child’s best interest, particularly if the evidence were undisputed
that the parental relationship endangered the safety of the child.” In re C.H., 89 S.W.3d 17, 27
(Tex. 2002). The child’s need for permanence is the paramount consideration when
determining a child’s present and future physical and emotional needs. L.R. v. Texas Dep’t of
Fam. & Protective Servs., No. 03-18-00125-CV, 2018 WL 3059959, at *1 (Tex. App.—Austin
25
June 21, 2018, no pet.) (mem. op.); In re D.R.A., 374 S.W.3d 528, 533 (Tex. App.—Houston [14th
Dist.] 2012, no pet.). A parent’s rights may not be terminated merely because the child might be
better off living elsewhere, but the factfinder may consider whether termination and adoption
versus an impermanent foster-care arrangement would better serve the child’s best interest. See
L.R., 2018 WL 3059959, at *1.
Mother testified that she was employed and had a residence that is safe and
appropriate, but the evidence does not indicate that Mother had been very stable in either area
during the proceeding. She started at her most recent job just before the referring court held the
de novo hearing, before that holding several jobs for short durations, and she had been kicked out
of several residences due to altercations. Her most recent residence was shared with two other
men whom she did not know before moving in. Mother had engaged in her services, completing
required classes and being successfully discharged from individual therapy, and she claimed that
she was attending to her mental health. However, although she insisted she had signed a release
of information, the Department’s witnesses testified that she had not allowed the Department
access to her full mental-health records. Moreover, she had stopped taking her medications
because she did not like the side-effects and she testified that she did not believe she had mental
issues that needed to be addressed. She was about to restart psychiatric care with a doctor she had
seen in the past but provided little explanation of how she had addressed her mental health in the
interim. Multiple witnesses testified that Mother seemed to struggle with her mental health, and
although Mother insisted that she did not have a problem with anger management, the evidence
indicated that she had physical altercations with multiple people while the case was pending,
including incidents happening shortly before and while the trial had commenced, and she was
arrested for assault and criminal trespass after the children’s removal. Thus, the evidence does not
26
indicate that Mother had obtained stability in terms of housing, employment, or her mental health.
In addition, we cannot ignore the fact that the children were removed from the parents’ care after
multiple instances of domestic violence that took place while the children were present, including
Mother’s assault on Father while she was holding Yuri in her arms.
As for the children’s wishes and their placements, Derek, who was between eleven
and twelve when the case was tried, is living with his father and is by all reports doing well in
school and happy and thriving in the home. Multiple witnesses testified that Derek is adamant that
he did not want to have any contact with Mother now or in the future, although Mother testified
that she did not believe that Derek did not want to see her and Father testified that she had been a
good parent. Although Derek had not seen his father for a considerable time before going to live
with him, there was evidence that Mother’s conduct was a primary reason for that gap in visits,
with Derek’s father testifying that he stepped back from exercising his visitation rights in order to
make Derek’s life less tumultuous. Moreover, Derek told multiple witnesses that he wanted to
stay with his father.
The evidence showed that Yuri was bonded to Mother, that she was a good parent,
and that her visitations with him were appropriate. See C.F. v. Texas Dep’t of Fam. & Protective
Servs., No. 03-21-00250-CV, 2021 WL 5018839, at *8 (Tex. App.—Austin Oct. 29, 2021, pet.
denied) (mem. op.) (evidence that preverbal child is bonded to caregiver is relevant to best
interest). However, he had also bonded with Aunt, with whom he had been placed when he was
removed from the parents’ care. Yuri is happy and doing well with Aunt.
The evidence shows that Aunt and Derek’s father are meeting the children’s needs,
that their homes are stable, and that they have the resources and desire to continue caring for the
children into the future. The Department witnesses and the children’s CASA all testified that it is
27
in the children’s best interests for Mother’s rights to be terminated and for them to remain in their
current placements.
Given the evidence presented at trial and again deferring to the factfinders’
determinations on witness credibility and the resolution of evidentiary conflicts, we hold that the
evidence is legally and factually sufficient to support a finding that termination of Mother’s
parental rights is in the best interest of both Derek and Yuri. We overrule Mother’s third issue. 2
FATHER’S ISSUES
Father raises two issues, arguing that the Department did not overcome the
presumption in favor of awarding Father managing conservatorship of Yuri and that the evidence
does not support a determination that Father’s visits with Yuri should be supervised.
We review conservatorship determinations for an abuse of discretion. In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007); A.S. v. Texas Dep’t of Fam. & Protective Servs., 665 S.W.3d 786,
794 (Tex. App.—Austin 2023, no pet.). “As conservatorship determinations are ‘intensely fact
driven,’ the trial court is in the best position to ‘observe the demeanor and personalities of the
witnesses and can “feel” the forces, powers, and influences that cannot be discerned by merely
reading the record.’” In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021), cert denied sub nom. R.S.C.
v. Texas Dep’t of Fam. & Protective Servs., 142 S. Ct. 1139 (2022) (quoting Lenz v. Lenz,
79 S.W.3d 10, 19 (Tex. 2002); Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002,
no pet.)). Under this standard, we will reverse a trial court’s judgment only if the record as a whole
2 Because we have held that the evidence is sufficient to support the findings of best
interest and statutory grounds under subsections (D) and (E), we need not consider Mother’s
second issue, challenging the finding of grounds under subsection (O), or her fourth issue, which
argues that the evidence is insufficient to overcome the presumption that Mother should be
appointed conservator of her sons. See Spurck v. Texas Dep’t of Fam. & Protective Servs.,
396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.).
28
indicates that the court abused its discretion. Id. (citing Gillespie v. Gillespie, 644 S.W.2d 449,
451 (Tex. 1982)). “A trial court abuses its discretion when it acts ‘without reference to any guiding
rules or principles; or in other words, [when it acts] arbitrarily or unreasonably.’” Id. (quoting
Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam)).
Challenges to the legal and factual sufficiency of the evidence are not independent
grounds of error under an abuse-of-discretion standard but are instead factors used to determine
whether the trial court abused its discretion. A.S., 665 S.W.3d at 795; Zeifman v. Michels,
212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). We ask whether the trial court had
sufficient information on which to exercise its discretion and, if so, whether the court erred in
applying its discretion. A.S., 665 S.W.3d at 795. “The traditional sufficiency review comes into
play with regard to the first question,” and we then ask “whether, based on the evidence, the trial
court made a reasonable decision, that is, that the court’s decision was neither arbitrary nor
unreasonable.” Zeifman, 212 S.W.3d at 587. A trial court does not abuse its discretion if there is
some substantive, probative evidence to support its decision. Id. “Evidence is legally sufficient
when it would enable reasonable and fair-minded people to reach the verdict under review and is
factually insufficient only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust.” A.S., 665 S.W.3d at 795.
The family code provides for a “rebuttable presumption that the appointment of the
parents of a child as joint managing conservators is in the best interest of the child.” Tex. Fam.
Code § 153.131(b); see also Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990), mand.
granted sub nom. Lewelling v. Bosworth, 840 S.W.2d 640 (Tex. App—Dallas 1992, no writ) (“The
presumption that the best interest of a child is served by awarding custody to a natural parent is
deeply embedded in Texas law.”). “[U]nless the court finds that appointment of the parent or
29
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); see also id. § 153.002 (“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.”); In re F.E.N., 579 S.W.3d 74, 77 (Tex. 2019) (per curiam)
(op. denying pet.) (nonparent seeking conservatorship must establish that parent’s appointment
would significantly impair child’s well-being, and “close call” should be decided in parent’s
favor). The 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,” In re De La Pena, 999 S.W.2d 521,
528 (Tex. App.—El Paso 1999, no pet.), and “the evidence must support the logical inference that
some specific, identifiable behavior or conduct of the parent will probably harm the child,” In re
B.B.M., 291 S.W.3d 463, 467 (Tex. App.—Dallas 2009, pet. denied). “If the parent is presently a
suitable person to have custody, the fact that there was a time in the past when the parent would
not have been a proper person to have such custody is not controlling.” A.S., 665 S.W.3d at 797
(quoting May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg 1992,
writ denied)).
Although the Family Code establishes a presumption in favor of parents, however,
it also provides that in determining whether to appoint a parent as a managing conservator, the
court should consider evidence of domestic violence committed by that parent within the two years
period preceding the filing of the suit. Tex. Fam. Code § 153.004(a). Moreover, the code
establishes a rebuttable presumption that it is not in the child’s best interest for a parent to have
unsupervised visitation if there is credible evidence of a history or pattern of family violence by
30
that parent or “any person who resides in that parent’s household or who is permitted by that parent
to have unsupervised access to the child during that parent’s periods of possession of or access to
the child.” Id. § 153.004(e).
The evidence indicates that Yuri and Father are bonded and that Father has acted
appropriately in his visits, which had been unsupervised for some amount of time before trial.
Further, Father is employed and has been living with his parents in a stable situation, and he had
complied with the requirements placed on him through the case, other than continuing a
relationship with Mother well into the case.
However, the case began when Father assaulted Mother while she was holding Yuri
in her arms, resulting in charges that were still pending against him at the time of trial, and the
associate judge and referring court were required to consider evidence of that incident of domestic
violence. See id. § 153.004(a). Moreover, throughout the case, the parents repeatedly broke up
and reunited, and Mother repeatedly assaulted Father or his property. Thus, although all but one
instance of domestic violence was committed by Mother against Father, the record firmly
establishes that there was a history or pattern of domestic violence between the parents, and the
Department sought to restrict Father’s conservatorship and visitations rights due to concerns that
he and Mother were still in a relationship and that he would allow Mother access to the child. See
id. § 153.004(e).
The parents testified that they are no longer in a relationship and will not reunite in
the future, with Father asserting that he had last seen Mother in January or March 2021, but
multiple witnesses expressed doubt and skepticism about those assertions. Jaramillo had concerns
because in October 2021, Mother asked Father to return to the home, and Father “den[ied] the
relationship” but also said “that if her mental health was right, then maybe.” Noyes testified that
31
the parents had a “repeated pattern” of breaking up and reuniting and were back in a relationship
in June or July 2021 and had told her that they loved each other and wanted to continue their
relationship. In August 2021, Father told Medellin that he was still in contact with Mother and
was supporting her financially, and she believed the parents might still be in a relationship or might
reunite in the future. Medellin was also skeptical about whether Father wanted to go through with
the pending divorce and testified that Father struggles to understand “appropriate boundaries” and
to be a protective parent to Yuri as related to Mother, to put Yuri’s interests “first before [Father’s]
relationship with [Mother],” and “just to sever that tie” with Mother. Aunt thought Father might
still be in a relationship with Mother, although she did not testify as to any concrete reasons for
that belief. Further, when Mother was asked whether she and Father were continuing their
relationship, she responded, “At this point I’m just not sure,” although she then stated that they
were not. There was conflicting evidence, therefore, about the parents’ current relationship status
and their intentions about the future.
Moreover, Medellin thought that Father underestimated the severity of Mother’s
condition and the danger she could pose to Yuri and was concerned that Mother and Father might
“gang up on” Aunt to pressure her to allow Mother access to Yuri. Father had expressed to
Medellin that he wanted Yuri to have contact with Mother, and Medellin worried that if Father
were not supervised, he would allow Mother access to the child. Father said at trial that he did not
think Mother posed a danger to the children, despite believing that she has issues with anger
management and her mental health. And although he admitted to a history of domestic violence
between him and Mother, he also downplayed the violence, describing it as a “mistake twice or
three times” and “like any normal couple.”
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“The parental presumption under Section 153.131 is removed when there is
a ‘finding of a history of family violence involving the parents of a child.’” In re J.J.G.,
540 S.W.3d 44, 56 (Tex. App.—Houston [1st Dist.] 2017, pet. denied) (quoting Tex. Fam. Code
§ 153.131(b)). And, “[a]s conservatorship determinations are ‘intensely fact driven,’” the trial
courts are in the position to observe the witnesses’ demeanor and personalities and to discern “the
forces, powers, and influences that cannot be discerned by merely reading the record.” In re
J.J.R.S., 627 S.W.3d at 218 (quoting Lenz, 79 S.W.3d at 19; Echols, 85 S.W.3d at 477). “A trial
court’s determination of what is in the child’s best interest, specifically the establishment of terms
and conditions of conservatorship, is a discretionary function.” Id.Given the history of domestic violence between the parents and Father’s pattern of
reuniting with Mother despite her violent and erratic behavior, it would not have been an abuse of
discretion for the associate judge and referring court to disbelieve the parents’ testimony that they
were no longer in a relationship and would not reunite in the future. Nor would it have been an
abuse of discretion to instead credit the Department’s witnesses’ concerns about the likelihood that
Father was still with Mother or that he would allow her access to Yuri because he did not believe
she posed a risk. The evidence established an act of domestic violence by Father against Mother
and a history or pattern of domestic violence on Mother’s part, and because the associate judge
and referring court could have concluded that Father and Mother had resumed their relationship,
they also could have determined that it was not in Yuri’s best interest for Father to have
unsupervised visitation. See Tex. Fam. Code § 153.004(a), (c), (e). We cannot hold that it was an
abuse of discretion to determine that Yuri’s best interest is served by Father being awarded
possessory conservatorship and being given supervised visitation, thus ensuring that Father does
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not place Yuri at risk by allowing Mother access to the child. See id. We overrule Father’s issues
on appeal.
CONCLUSION
Having overruled the parents’ issues, we affirm the orders terminating Mother’s
parental rights to Yuri and Derek, naming Father Yuri’s possessory conservator, and requiring that
his visitation be supervised.
__________________________________________
Edward Smith, Justice
Before Justices Baker, Smith, and Jones*
Affirmed
Filed: July 7, 2023
* Before J. Woodfin Jones, Chief Justice (Retired), Third Court of Appeals, sitting by assignment.
See Tex. Gov’t Code § 74.003(b).
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