In the Interest of T.P., A.P., K.S., and K.S., Children v. the State of Texas ( 2023 )

Opinion filed July 13, 2023
In The
Eleventh Court of Appeals
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No. 11-23-00025-CV
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IN THE INTEREST OF T.P., A.P., K.S., AND K.S., CHILDREN
On Appeal from the 326th District Court
Taylor County, Texas
Trial Court Cause No. 10391-CX
MEMORANDUM OPINION
Appellant, the mother of K.S. and K.S., appeals a final order in which the trial
court appointed C.S., a nonparent, as the permanent managing conservator of K.S.
and K.S. In a single issue, Appellant asserts that the appointment of C.S., the
grandmother of K.S. and K.S., as the managing conservator of them was not in the
children’s best interest. We affirm.
The Department initially filed a petition for protection of the children and for
termination of the parents’ parental rights. Over the course of the underlying
proceedings, the parties reached an agreement to not terminate parental rights, and
that no parent be named as a conservator. The trial court appointed the Department
and the biological father of T.P. and A.P. as the joint managing conservators of them.
Those appointments are not at issue in this appeal. At the time of the entry of the
final order affecting them, T.P. was seventeen years old and A.P. was eight years old.
Following a bench trial, the trial court appointed C.S., the paternal step-
grandmother, as the permanent managing conservator of six-year-old twins, K.S. and
K.S. Appellant asserts in her sole issue that the trial court abused its discretion when
it appointed C.S., rather than the Department, as K.S. and K.S.’s permanent
managing conservator because the appointment is not in the best interest of the
children. She limits her contentions on appeal to the argument that naming the
Department as the managing conservator of the twins would better foster their
relationship with their siblings.1
Appointment of Permanent Managing Conservatorship
We review the trial court’s conservatorship determination for an abuse of
discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re A.M.T., 592 S.W.3d
974, 976 (Tex. App.—San Antonio 2019, pet. denied). Under this standard, legal
and factual sufficiency are not independent grounds of error but factors used to
determine whether the trial court abused its discretion. In re M.T., No. 11-17-00340-
CV, 2019 WL 1291246, at *2 (Tex. App.—Eastland Mar. 21, 2019, no pet.) (mem.
op.); In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied). A trial court abuses its discretion when it acts unreasonably, arbitrarily, or
without reference to guiding principles. K.S., 492 S.W.3d at 426; see also J.A.J.,
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Appellant does not contend that the trial court abused its discretion by appointing a nonparent
managing conservator rather than her, the parent, as sole or joint managing conservator of K.S. and K.S.
See TEX. FAM. CODE ANN. § 153.131(a) (West 2014) (providing a rebuttable presumption that a parent
must be appointed sole managing conservator or joint managing conservator with the other parent); Danet v.
Bhan, 436 S.W.3d 793, 796 (Tex. 2014). However, we note that the trial court expressly found that
appointing one or both of the children’s parents as managing conservators would significantly impair the
children’s physical health or emotional development.
2
243 S.W.3d at 616. “A trial court does not abuse its discretion if there is some
evidence of a substantive and probative character to support its decision.” K.S., 492
S.W.3d at 426. The best interest of the child is always the primary consideration in
the determination of managing conservatorship, and the trial court is given wide
latitude in determining the best interest of a child. FAM. § 153.002; Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
With respect to the best interest of a child, no unique set of factors need be
proved. In re C.J.O., 325 S.W.3d 261, 266 (Tex. App.—Eastland 2010, pet. denied).
But courts may use the non-exhaustive Holley factors to shape their analysis.
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These include, but are not
limited to, (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 these individuals or by the agency seeking
custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that 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. Id.Additionally, evidence that proves one or more statutory grounds for termination
may also constitute evidence illustrating that termination is in the child’s best
interest. C.J.O., 325 S.W.3d at 266.
Evidence Presented at Trial
On, May 3, 2021, the Department filed an Original Petition for Protection of
a Child, for Conservatorship, and for Termination in Suit Affecting the Parent-Child
Relationship as to T.P., A.P., K.S., and K.S. The petition alleged the sexual abuse of
one of the children, neglectful supervision, endangering conditions, and drug use by
the children’s mother. The Department requested that the parental rights of the
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mother of all four children, the father of T.P. and A.P., and the father of K.S. and K.S.
be terminated.
Initially, the trial court appointed the Department as the temporary managing
conservator of all the children. In June 2022, K.S. and K.S. were temporarily placed
with their paternal grandmother in Abilene. The placement occurred when one of
the twins tested positive for marihuana. At the initial September 2022 hearing, the
Department withdrew all termination grounds as to each parent. Almost all parties
were in agreement that no parent was to be named conservator of any of the children.
Because the twins’ paternal grandmother was not willing to be a long-term
placement for the children, the Department identified the twins’ paternal grandfather
and his wife, C.S., the twins’ step-grandmother, as a potential long-term placement.
C.S. and her husband live in Illinois. 2 They had an approved home study and
a two-and-a-half week visit with K.S. and K.S. prior to the initial hearing. There
were no concerns with the home study or the visit. The grandfather is a retired
military serviceman and business owner, and the step-grandmother is a retired civil
servant. The Department found that the paternal grandparents do not use illegal
substances, nor do they permit the use of them in the home. The home was found to
be suitable for the children with individual bedrooms for each child and appropriate
activities for the children. The paternal grandparents were found to have the
financial means to provide for the children and intended to enroll the children in a
tuition-based school. The grandparents intended to provide the twins with
opportunities for extracurricular activities and to attend college free of debt later in
their lives.
2
The paternal grandparents live in the same household. However, the step-grandmother, C.S., was
the only one to testify and was the sole individual named as permanent managing conservator in the final
order.
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C.S. informed the trial court that they intended to teach the children about
consequences and how to correct their own mistakes or learn from them, and C.S.
testified that she and her husband would raise the children with compassion. She
also testified that they planned to seek counseling support for both the twins and
themselves to assist with the transition.
During the twins’ visit to Illinois, C.S. gave K.S. and K.S. the opportunity to
have Zoom contact with their siblings. C.S. testified that she would also be willing
to facilitate face-to-face contact with the siblings after the twins’ move to Illinois.
C.S. stated that they would make all decisions in the children’s best interest and that
she was informed and understood the obligations of acting as permanent managing
conservator of the children.
At the hearing, the Court Appointed Special Advocate for the children
testified that she believed it was in the best interest of the twins to be placed in
Illinois with the paternal grandparents. She testified that the stable home gained by
the children would outweigh any loss from the move. She testified she did not
believe the children would view the move as negative because they were young and
did not live with T.P. and A.P. prior to the case.
Following the September hearing, K.S. and K.S. were placed with their
paternal grandparents in Illinois. During their placement in Illinois, the children
were enrolled in school and made significant developmental progress in their
education. They also engaged in, and reportedly enjoyed, extracurricular activities
in their new community.
The record reflects that the final hearing occurred on December 7, 2022. The
Department agreed at the hearing that K.S. and K.S. should remain in Illinois with
the paternal grandparents. Initially, all other parties agreed that C.S. should be made
permanent managing conservator for K.S. and K.S. However, as the hearing
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progressed, the attorney for T.P. and the mother opposed the conservatorship with
the paternal grandparents.
At the time of the hearing, T.P. had been placed in a treatment facility which
complicated in-person sibling visitation. During her testimony, the case manager
did not identify any adverse impacts experienced by K.S. and K.S. as a result of
solely virtual visits with T.P. The case manager expressed a concern, however, that
K.S. and K.S. would experience a loss if there was no contact with A.P. C.S. testified
that they were willing to continue to facilitate virtual and in-person visits with A.P.
moving forward.
During the final hearing, C.S. testified over Zoom that she and her husband
wished to be named permanent managing conservators of K.S. and K.S. C.S. agreed
to continue monitored sibling visits over Zoom. She also testified that she would be
willing to transport the children to Texas twice a year as long as they would be in a
safe place. There was also testimony that the grandparents brought K.S. and K.S. to
Texas over the Thanksgiving holidays to visit with their siblings.
Though some Zoom visits with the siblings were missed during the period,
C.S. testified that it was the result of technical issues and inaction by the permanency
case manager and that she had not refused to set up sibling visits. C.S. testified that,
prior to the final hearing, she was unaware that it was permissible for her to contact
the maternal aunt with whom A.P. had been placed without going through the case
manager. C.S. also recognized the importance of the children’s sibling relationships.
She testified that she was willing to share contact information with the siblings’
placements to allow K.S. and K.S. and the other children to remain in contact.
Following the final hearing, the trial court issued an order appointing C.S. as the
permanent managing conservator of K.S. and K.S.
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Analysis
In the mother’s sole issue, she asserts that the trial court abused its discretion
when it determined that the appointment of C.S. was in the best interest of K.S. and
K.S. The mother asserts that there is the potential for the complete severance of the
sibling relationships if C.S. were to remain the permanent managing conservator of
K.S. and K.S. with the children living in Illinois. She also contends that the
Department should be named as permanent managing conservator until a more stable
visitation plan is implemented, and only then, would it be appropriate for C.S. to be
reinstated as managing conservator.
The trial court, as the trier of fact, is the sole judge of the witnesses’ credibility.
In re A.B., 437 S.W.3d 498, 503 (Tex. 2014). We are not at liberty to disturb the
determinations of the trier of fact as long as those determinations are not
unreasonable. In re J.P.B., 180 S.W.3d 570, 573 (Tex. 2005). Giving due deference
to the trial court, we conclude that, based on the evidence presented at trial and
Holley factors, the trial court did not abuse its discretion in the appointment of C.S.
as the permanent managing conservator of K.S. and K.S. See Holley, 544 S.W.2d at
371–72.
As set forth above, the evidence presented does not indicate that a complete
severance or dissolution of the sibling relationship is imminent. The testimony of
C.S. indicated that she was willing to continue to facilitate the sibling relationship.
K.S. and K.S. had Zoom visitations with their siblings and C.S. took them to Texas
during the months between hearings after their placement in Illinois. C.S. testified
that she was willing to exchange numbers with the aunt with whom A.P. had been
placed to provide the children with a reliable avenue of regular communication.
The grandparents also owned a home equipped to house the children. They
enrolled the children in school immediately following their placement in Illinois,
and the children showed substantial improvements in their educational development.
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K.S. and K.S. were provided opportunities to join extracurriculars and were actively
involved in those extracurriculars by the final permanency hearing. C.S. also
indicated that she and her husband intended to seek counseling for themselves and
the children to ensure the children would be emotionally supported while adjusting
to the placement.
Upon considering the record, the emotional and physical needs of the children
now and in the future, the plans for the children by the Department, the parental
abilities of the individuals seeking custody, the programs available to assist these
individuals to promote the best interest of the child, and the stability of the home
intended for the children’s placement, we conclude that the evidence is legally and
factually sufficient to support that the appointment of C.S. as the permanent
managing conservator is in the best interest of the children. See id.; In re A.M.T.,
592 S.W.3d at 978. We defer to the trial court’s findings as to the children’s best
interest, and we cannot conclude in this case that the trial court abused its discretion
when it appointed the paternal step-grandmother, rather than the Department, as the
children’s permanent managing conservator. See In re C.H., 89 S.W.3d 17, 27 (Tex.
2002). Accordingly, we overrule the mother’s sole issue on appeal.
This Court’s Ruling
We affirm the order of the trial court.
JOHN M. BAILEY
CHIEF JUSTICE
July 13, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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