In the Interest of L.E. and P.E., Children v. the State of Texas ( 2024 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-24-00036-CV
___________________________
IN THE INTEREST OF L.E. AND P.E., CHILDREN
On Appeal from the 322nd District Court
Tarrant County, Texas
Trial Court No. 322-727064-22
Before Kerr, Bassel, and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
L.V. (Mother) appeals from the trial court’s final order appointing C.E. (Father)
as the sole managing conservator of their two children, L.E. (Lisa) and P.E. (Penny),
and appointing Mother as the children’s possessory conservator.1 In this ultra-
accelerated appeal, 2 Mother argues in two points that the trial court abused its
discretion by (1) appointing Father as the children’s sole managing conservator
because he has a history of domestic violence against Mother and (2) failing to
appoint her as a joint managing conservator because the evidence was insufficient to
overcome the presumption that naming both parents as such was in the children’s
best interest. Because the trial court did not abuse its discretion, we will affirm.
I. Background
In November 2022, Mother and Father were unmarried but lived together with
then-three-year-old Lisa and then-two-year-old Penny. On November 25, 2022,
Father physically assaulted Mother in front of the children during an altercation in
their home. Mother called the police, and Father was arrested. During his arrest,
1
We refer to the children using aliases and to other family members by their
initials or by their relationship to the children. See Tex. Fam. Code Ann. § 109.002(d);
Tex. R. App. P. 9.8(b)(2).
2
The Department of Family and Protective Services instituted this case. See Tex.
R. Jud. Admin. 6.2(a), reprinted in Tex. Gov’t Code Ann., tit. 2, subtit. F app. (requiring
appellate court to dispose of appeal from judgment in a suit for termination of the
parent–child relationship or a suit affecting the parent–child relationship filed by a
governmental entity for managing conservatorship, so far as reasonably possible,
within 180 days after notice of appeal is filed).
2
Father “informed Fort Worth PD that CPS needed to be notified due to [Mother’s]
being high on methamphetamines.”
Because of Father’s assaulting Mother, the Department of Family and
Protective Services “received a referral alleging neglectful supervision of [Lisa and
Penny] by [Father]” and thus opened an investigation. During the investigation,
Mother refused the Department’s requests that she drug test, and Mother’s probation
officer reported to a Department investigator that Mother had tested positive for
amphetamines and methamphetamines. 3 Concerned for the children’s safety, the
Department sued for conservatorship of the children and to terminate Mother’s and
Father’s parental rights to them.
On December 9, 2022, the trial court signed an order appointing the
Department as the children’s temporary managing conservator. The Department
removed the children and placed them with B.G.—Father’s brother’s wife’s cousin—
in Springtown. Each parent countersued for sole managing conservatorship of the
children, alleging that it would not be in the children’s best interest for the parents to
be appointed as joint managing conservators.
After the children’s removal, the Department created a service plan for each
parent. Based on Father’s diligence in completing his service plan and his positive and
productive interactions with the children during supervised visitation sessions, the
3
At the time, Mother was on probation for an assault-causing-bodily-injury
offense.
3
Department moved for the children’s monitored return to Father. On September 7,
2023, the trial court granted the motion; returned the children to Father; ordered the
Department to monitor the placement to ensure the children’s safety; set the case for
trial on December 18, 2023; and extended the statutory dismissal deadline to March 5,
2024. See generally Tex. Fam. Code Ann. §§ 263.401, .403.
The case was tried to the bench as scheduled on December 18, 2023. By that
time, Lisa and Penny were four and three years old, respectively, and they had been
with Father on a monitored return for over three months. The Department no longer
sought termination of Mother’s and Father’s parental rights but asked the trial court
to appoint Father as the children’s sole managing conservator and Mother as
possessory conservator with supervised visits with the children. The children’s
attorney and guardian ad litem agreed with the Department’s recommendation.
At trial, the trial court heard testimony from Joan Hall, the case’s current
permanency specialist, and from Mother and Father. 4 Hall, who took over the case in
July 2023, testified that the children were removed from the parents and came into the
Department’s care in December 2022 because of the domestic-violence incident
4
The trial court took judicial notice of several documents in its file. “A trial
court may take judicial notice of its own records in matters that are generally known,
easily proven, and not reasonably disputed.” In re J.E.H., 384 S.W.3d 864, 870 (Tex.
App.—San Antonio 2012, no pet.). A trial court may not, however, take judicial notice
of the truth of allegations in its records. See id. (holding trial court could not take
judicial notice of allegations caseworker made in family service plan or in affidavit
attached to the Department’s petition).
4
between Mother and Father and because of Mother’s testing positive for
methamphetamines during the Department’s investigation. Hall also testified about
the Department’s service plans for both parents. Father’s plan required him to attend
scheduled visitations with the children and to complete parenting classes, a FOCUS
for Fathers class, 5 individual counseling to address domestic-violence issues, and a
psychological evaluation. Mother’s plan similarly required her to attend scheduled
visitations with the children and to complete parenting classes, a FOCUS for Mothers
class, individual counseling, a drug assessment, drug treatment, random drug testing,
domestic-violence classes, and a psychological evaluation.
Father had completed all his service-plan requirements. Mother had not.
Although Mother had completed the required parenting classes, domestic-violence
classes, and psychological evaluation, she had failed to complete the FOCUS for
Mothers class and to make significant progress with individual counseling. Mother
had been close to completing the FOCUS class but was arrested before she could
finish, and when she was released from jail, the FOCUS program required her to
restart the classes. Because Mother did not have enough time to complete the FOCUS
class before trial, Hall told her to concentrate on individual counseling and drug
treatment.
5
FOCUS, a ten-week-long-program, stands for Families Offering Children
Unfailing Support.
5
Mother had completed a drug assessment, but after she tested positive for
drugs in August 2023, Hall asked her to take another assessment. Mother failed to do
so. Hall was concerned that Mother was continuing to use drugs. Mother had been
unable to demonstrate to Hall that she had stopped using methamphetamines and
that she had substantially started the methamphetamine-recovery process. According
to Hall, it was possible that Mother’s methamphetamine use had worsened during the
case’s pendency. Hall thought that Mother would “really benefit” from an inpatient
drug-treatment program but understood that Mother had to work and needed to
maintain her residence. Hall opined that at a minimum, Mother needed to participate
in an outpatient drug-treatment program.
Hall further testified that Mother had weekly, hour-long supervised visits with
the girls. Mother dependably attended the visits when she “actually had the ability to
be present.” Hall had observed Mother’s visits, which went well in Hall’s opinion. The
girls wanted to see Mother, and Mother was “very interactive” with them. According
to Hall, Mother “gets on their level and plays with them in age-appropriate
ways, . . . is physically affectionate towards them[,] and tells them she loves them.”
The Department recommended that Mother have continued supervised visitation
with the girls.
Hall believed that Lisa and Penny were safe in their current placement with
Father. Father had moved in with B.G., the girls’ primary placement before the trial
court had granted the monitored return. The girls had struggled with defiance and
6
behavioral issues when they were first placed with B.G. but had improved in recent
months due to B.G.’s implementing the girls’ play therapist’s recommendations.
Hall described Lisa and Penny as “very sweet little girls.” Lisa was in pre-
kindergarten and was “doing well in school.” Penny attended a part-time Mother’s
Day Out program. Both girls were “doing pretty well” according to Hall.
Both girls were bonded with Father and were doing well in his care. Hall
described Father as “very cooperative.” During the monitored return, he had
maintained contact with her and had allowed her to see the home and talk to the girls
during her weekly—and after 90 days, biweekly—visits to the home. Hall believed
that Father was able meet the girls’ needs and that placement with Father was in their
best interest. The Department thus recommended that Father be appointed as the
girls’ sole managing conservator.
Mother disagreed, primarily because of the November 2022 domestic-violence
incident. According to her, Father “brutally beat [her] up” in front of the girls for an
hour and a half on the night of November 25, 2022. She recounted that Father
pushed a kitchen table into her, repeatedly slammed her into a wall, pinned her against
a wall and choked her, bashed her head into a door, hit her, threw something at her,
kicked her in the back, and threw her and Lisa “out [of] the garage, causing [them] to
fall.” At that point, Penny ran back into the house and was “basically taken hostage”
by Father. When Father finally emerged from the home holding Penny, “the house
was surrounded [by] officers at gunpoint.”
7
Mother also testified that she had witnessed violence between Father and the
girls. According to her, Father would discipline them by spanking them with a belt
and that she had to intervene multiple times “between him trying to spank [Lisa] with
a belt and telling him to calm down.” She described an incident in which Lisa
“bust[ed] her head open” because Penny had pushed over a small slide that the girls
were playing on, and Father tried to “rip” Penny out of Mother’s hands to spank her
for pushing the slide over. Mother recounted another instance when she returned
home from “weekend jail . . . for probation” to find a bruise on Lisa’s back.
Mother insisted that Father was not a bad father, but she was worried that he
did not have his anger issues under control. She believed that even though Father had
completed his service plan, “he did the bare minimum of what he needed to do to get
by to -- to get his part [of the case] closed,” and she did not “think that he ha[d] any
remorse for any of his actions.” She thus asked the trial court to award her primary
custody of the girls.
Mother admitted that, unlike Father, she had failed to complete her service
plan, specifically the FOCUS for Mothers class, individual counseling, and drug
treatment. She explained that she had four FOCUS classes remaining when she was
arrested and that she had restarted the course when she was released from the Parker
County jail. Since her release, she had completed four individual counseling sessions
but had not attended counseling recently because of work and other family issues.
Mother further explained that she was arrested before she could start her drug-
8
treatment program. She was discharged from that program because of her arrest.
After her release, she claimed that she completed another drug assessment but was
not able to start her treatment program because the Department did not provide the
necessary referral.
Mother insisted that she did not use methamphetamines and stated that she
had been sober since May 2022. When asked why she had “tested positive for
methamphetamines on multiple occasions in this case,” she replied, “Because I have
an inhaler, that will do that. That will cause a false positive.” She maintained that her
inhaler could cause “false positives” and that despite her positive drug tests, she did
not use methamphetamines. She was concerned that she was testing positive for
methamphetamines and understood that the Department would not want to return
children to a parent who was testing positive for the substance, “if it was actually true
or happening, but [she was] not on drugs.”
Mother admitted, however, that she had been arrested twice during the case’s
pendency. First, she was arrested “[f]or a probation violation for not reporting.” She
explained that she was on probation for 18 months for an assault-causing-bodily-
injury charge. Her second arrest was for theft and methamphetamine possession. She
contended that she “was arrested for stealing [her] own car that [she had] proven that
[she] didn’t steal” and that the methamphetamine was not hers and “was not on
[her].”
9
Despite her two arrests, Mother had been employed by a home-healthcare
company since September 2023.6 At the time of trial, she was working at least
40 hours a week and worked Mondays, Wednesdays, Fridays, and weekends. Mother
testified that her employer was willing to rearrange her work schedule so that she was
not working on weekends and that she would set up daycare for the girls on weekdays
if they were returned to her.
Mother claimed that she would allow the girls to finish out the school year in
Springtown and that she would be able to transport them to their respective schools
there. At the time of trial, Mother was living in her best friend Morgan’s father’s four-
bedroom, two-bath home in Benbrook with Morgan, Morgan’s son, and Morgan’s
father. Mother explained that she was temporarily living there while she was “waiting
on [her] apartment to come back available.” She planned on moving into that
apartment, which is in Fort Worth, by January 1, 2024. Until then, she and the girls
would share a room at Morgan’s father’s house.
Father, however, was concerned about Morgan because she had a “CPS
history,” a criminal history, and a history of methamphetamine use. Drug use—
specifically methamphetamine use—was also Father’s primary concern with Mother.
As Father explained, “with the drug use, there’s no telling who she’s getting drugs
6
Mother testified that she is a certified nurse aid (CNA) and was “transitioning”
into a licensed vocational nurse (LVN).
10
from or who she has around when she’s using drugs and then, obviously, the concern
that the kids could come into contact with said drugs or the paraphernalia.”
Although Father was concerned about Mother’s methamphetamine use, he had
never seen her use methamphetamines. But shortly after Lisa was born in February
2019, Father learned that Mother had tested positive for methamphetamines during
the pregnancy. Mother told Father that she had tested positive because “she went to
the emergency room, and they gave her a prescription drug, and that information
wasn’t relayed to her OB/GYN, and the OB/GYN [was] the one that tested.” Father
testified that he gave Mother “the benefit of the doubt” at the time.
Before the November 2022 assault, Mother was a stay-at-home mom who
occasionally worked, and Father worked fulltime. Mother was the girls’ primary
caregiver. Father started to become concerned because Lisa’s teeth were rotting, and
Mother would not take her to dentist. Father was also concerned because Mother
would leave the house at odd hours of the night while he was asleep and because
when he would come home from work “she would just be [going] 90 to nothing.”
Father explained that he had assaulted Mother because of her behavior:
Her lying, . . . her constant accusations of me lying, . . . [her] not taking
care of my children, and she was clearly high on meth that night, and
that’s why CPS was involved because whenever I was escorted to
Tarrant County jail, I informed Fort Worth PD that CPS needed to be
notified due to her being high on methamphetamines.
Father testified that he “wouldn’t say [he] beat [Mother] up” and characterized the
assault as an altercation. He denied choking Mother. But he admitted that he held her
11
up against a wall, he told her to get out of his house, and he pushed her toward the
door to get her out of the house. He further admitted that law-enforcement officers
had to order him out of the house at gunpoint.
Father pleaded guilty to assault and is on probation for the offense until June
2025. Father testified that he had taken accountability for the assault, reasoning that
he “had a one-off and got mad at [Mother] and reacted.” He denied having an anger
problem and stated that he thought his actions the night of the assault were justified.
He denied needing to take the anger-management classes that were a part of his
service plan but testified that they had helped him become a better parent to the girls.
For example, he had physically disciplined the girls in the past7 because “that’s how
[he] was raised . . . but taking parenting classes ha[d] taught [him] to be a better
parent.” He no longer physically disciplines them. He further explained that
the classes I have attended have made me think before I act now, um,
and it really -- like, you can get frustrated real easily about different
things, and now I blow everything off and just let it be, and then I think
about the end result instead of in the moment right then and there.
Father testified that he and the girls live with B.G. in Springtown. He and the
girls have a close relationship—Lisa is a “daddy’s girl,” and Penny is “all about
daddy.” From Father’s perspective, the girls are “doing fantastic.” Lisa was doing
7
In contrast to Mother’s testimony, Father denied ever having spanked the girls
with a belt or seeing a bruise on Lisa when Mother had returned from weekend jail. In
recounting that incident, he admitted that while Mother was away, he had given Lisa
“a single pop on the butt and nothing further” because she had “pour[ed] a bunch of
water in the windowsill.”
12
“real well now” in prekindergarten,8 and Penny was enjoying going to her Mother’s
Day Out program twice a week, playing with kids her age there, and “learning her
alphabets, colors, [and] numbers.”
Father takes the girls to the doctor and the dentist when needed, and he had
recently attended an Admission, Review, and Dismissal (ARD) meeting for Lisa to
discuss speech-therapy-study and autism-study results. Father testified that his “work
schedule can be built around the kids” because his boss works with his “schedule
when it comes to the kids” and has no problem letting Father off from work when
needed.
Father testified that he can provide Lisa and Penny with a permanent, stable
home environment going forward. He explained that
We will be living with [B.G.] . . . [T]he house is paid for, so we don’t
have a mortgage. . . . [A]ll utilities are paid, plenty of food in the
house. . . . I come home from work, and it’s activities with the kids, cook
dinner, bathtime, [and] bedtime.
Father asked the trial court to appoint him as the girls’ sole managing
conservator because he believed that the appointment was in the girls’ best interest at
the time of trial. He also asked the trial court to allow Mother to have continued
supervised visitation with them. Father testified that the girls love Mother and that she
should be in their lives, but in his opinion, Mother’s visits with the girls should be
8
Lisa had initially resisted participating in physical-education classes but now
looks forward to them.
13
supervised for their safety. Father wants the girls to have a relationship with Mother,
and if she “was able to go through treatment and provide clean drug tests, [he] would
be okay with unsupervised visits at that time.”
After the trial, the trial court signed a final order (1) removing the Department
as Lisa’s and Penny’s managing conservator; (2) appointing Father as the girls’ sole
managing conservator and finding that the appointment was in the girls’ best interest;
and (3) appointing Mother as the girls’ possessory conservator and finding that the
appointment was in the girls’ best interest. The trial court further found that Mother’s
“possession and access shall be as provided by this order” and “does not exceed the
restrictions needed to protect the best interest of the children.” The trial court
ordered that Mother “shall have possession and access two times per month as
arranged, supervised, and directed by Family Court Services (FCS) or another
supervisor designated by . . . Father. The parties may agree to more visits per month
through a supervisor designated by . . . Father.” The trial court specifically prohibited
both parents from using “corporal punishment” on the girls.
Mother timely appealed and raises two points challenging the trial court’s
conservatorship determinations.
II. Standard of Review
Here, none of the parties requested—and the trial court did not file—findings
of fact and conclusions of law. In a trial to the court in which no findings of fact or
conclusions of law are filed, the trial court’s judgment implies all findings of fact
14
necessary to support it. Shields Ltd. P’ship v. Bradberry, 526 S.W.3d 471, 480 (Tex. 2017).
When a reporter’s record is filed, these implied findings are not conclusive, and an
appellant may challenge them by raising issues challenging the legal and factual
sufficiency of the evidence to support the judgment. Id. We apply the same standard
when reviewing the sufficiency of the evidence to support implied findings that we
use to review the evidentiary sufficiency of jury findings or a trial court’s express
findings of fact. Id. We must affirm the judgment if we can uphold it on any legal
theory supported by the record. Rosemond v. Al-Lahiq, 331 S.W.3d 764, 766–67 (Tex.
2011).
We review a trial court’s decisions regarding the conservatorship of a child
under an abuse-of-discretion standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In
re M.L., No. 02-15-00258-CV, 2016 WL 3655190, at *3 (Tex. App.—Fort Worth July
7, 2016, no pet.) (mem. op.). A trial court abuses its discretion if it acts without
reference to any guiding rules or principles—that is, if its act is arbitrary or
unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings,
134 S.W.3d 835, 838–39 (Tex. 2004). A trial court also abuses its discretion if it does
not analyze or apply the law properly. Iliff v. Iliff, 339 S.W.3d 74, 78 (Tex. 2011).
In an abuse-of-discretion review, legal and factual sufficiency are not
independent grounds of error, but they are relevant factors in deciding whether the
trial court abused its discretion in a conservatorship case. See M.L., 2016 WL 3655190,
at *3. In applying the abuse-of-discretion standard, we use a two-pronged analysis:
15
(1) whether the trial court had sufficient evidence upon which to exercise its
discretion and (2) whether the trial court erred in applying its discretion. Id.; see Wise
Elec. Coop., Inc. v. Am. Hat Co., 476 S.W.3d 671, 679–80 (Tex. App.—Fort Worth
2015, no pet.) (setting forth standards for legal and factual sufficiency).
III. The Trial Court’s Conservatorship Findings
A trial court may appoint a sole managing conservator or joint managing
conservators. Tex. Fam. Code Ann. § 153.005(a). It is a rebuttable presumption that
the appointment of the child’s parents as joint managing conservators is in the child’s
best interest. Id. § 153.131(b). A finding of a history of family violence involving the
child’s parents removes this presumption. Id. The child’s best interest is always a trial
court’s primary consideration in determining conservatorship and possession and
access issues. Id. § 153.002.
In Mother’s first point, she contends that the trial court abused its discretion by
appointing Father as sole managing conservator because he had a history of domestic
violence against Mother. She further contends that the trial court abused its discretion
by failing to find a history of family violence—which would have removed the
presumption that appointing both parents as the girls’ joint managing conservators
was in their best interest—and by not appointing her as sole managing conservator.
When a trial court determines whether to appoint a party as a child’s sole or
joint managing conservator, the court must consider evidence of the intentional use of
abusive physical force by a party directed against the party’s spouse, the child’s parent,
16
or any person younger than 18 committed within the two years before suit was filed
or during the suit’s pendency. Id. § 153.004(a). When there has been a history or
pattern of physical or sexual abuse by one parent against the other parent, the Family
Code prohibits a trial court from appointing joint managing conservators and creates
a rebuttable presumption that it is not in the child’s best interest for an abusive parent
to be appointed sole managing conservator:
The court may not appoint joint managing conservators if credible
evidence is presented of a history or pattern of past or
present . . . physical or sexual abuse by one parent directed against the
other parent . . . . It is a rebuttable presumption that the appointment of
a parent as the sole managing conservator of a child or as the
conservator who has the exclusive right to determine the primary
residence of a child is not in the best interest of the child if credible
evidence is presented of a history or pattern of past or
present . . . physical or sexual abuse by that parent directed against the
other parent . . . .
Id. § 153.004(b).
Mother argues that the testimony about the November 2022 assault constituted
credible evidence of a history or pattern of past physical abuse by Father directed
against Mother. She claims that this evidence precluded the trial court from
appointing Father as the girls’ sole managing conservator under Family Code Section
153.004(b). See id.
The Family Code does not define “history” or “pattern.” See id. § 153.004;
Hinojosa v. Hinojosa, No. 14-11-00989-CV, 2013 WL 1437718, *4 (Tex. App.—
Houston [14th Dist.] Apr. 9, 2013, no pet.) (mem. op.). As Mother points out, a single
17
act of violence or abuse can suffice to show a history of physical abuse under Section
153.004(b). See Baker v. Baker, 469 S.W.3d 269, 274 (Tex. App.—Houston [14th Dist.]
2015, no pet.) (citing Dewalt v. Dewalt, No. 14-06-00938-CV, 2008 WL 1747481, at
*4 (Tex. App.—Houston [14th Dist.] Apr. 17, 2008, no pet.) (mem. op.)); In re R.T.H.,
175 S.W.3d 519, 521 (Tex. App.—Fort Worth 2005, no pet.) (citing In re Marriage of
Stein, 153 S.W.3d 485, 489 (Tex. App.—Amarillo 2004, no pet.)). But even so, a single
incident of physical abuse is not automatically a history of physical abuse. See C.C. v.
L.C., No. 02-18-00425-CV, 2019 WL 2865294, at *12 (Tex. App.—Fort Worth July 3,
2019, no pet.) (mem. op.). Rather, “the statute leaves it to the trial court’s broad
discretion to decide whether the act reaches the threshold of being a history.” Id. “[A]
single act, even if its occurrence is undisputed, does not necessarily mandate a finding
that a history of abuse exists.” Id. at *17.
Here, Father assaulted Mother in November 2022. He admitted to the assault
at trial and testified that he had pleaded guilty and was on probation for the offense
until June 2025. Even so, the trial court was within its broad discretion to conclude
that there was no credible evidence of a history or pattern of Father’s physically abusing
Mother because no evidence showed that Father had assaulted Mother before or after
the November 2022 assault and because Father described the assault as a “one-off.”
See id. at *12. Although the assault was undisputed, the trial court was not required to
find that a history of abuse or family violence exists. See id. at *17.
18
But even if the trial court did abuse its discretion by failing to determine that
Father’s assaulting Mother in November 2022 was credible evidence of a history or
pattern of physical abuse or family violence, such a finding would not have prohibited
the trial court from appointing Father as the girls’ sole managing conservator.
Although a family-violence finding removes the joint-managing-conservators
presumption and Section 153.004(b) prohibits a trial court from appointing the
parents as joint managing conservators if there is credible evidence of a history or
pattern of physical abuse by one parent against another, the abusive parent is not
rendered ineligible to be named sole managing conservator. See Tex. Fam. Code Ann.
§ 153.004(b); see also Baker, 469 S.W.3d at 276 (stating that father was not rendered
ineligible to be named sole managing conservator even though mother proved that he
had a history of being physically abusive against her). Rather, Section 153.004(b)
creates a presumption that it is not in a child’s best interest for a parent with a history
of physical abuse to be appointed sole managing conservator. See Tex. Fam. Code
Ann. § 153.004(b); In re J.M., No. 02-16-00428-CV, 2017 WL 3821863, at *5 (Tex.
App.—Fort Worth Aug. 31, 2017, no pet.) (mem. op.). But that presumption is
rebuttable. See Tex. Fam. Code Ann. § 153.004(b); J.M., 2017 WL 3821863, at *5.
Here, although Father had assaulted Mother in November 2022, Father
successfully completed his service plan, which included domestic-violence classes,
parenting classes, and individual counseling. Father’s completing his plan led the
Department to ask for the children’s monitored return to Father. The girls were
19
successfully returned to him on a monitored basis for three months, and the evidence
showed that Father could care for their physical and emotional needs and provide
them with safety and stability. Mother, however, failed to demonstrate safety and
stability: she still struggled with methamphetamine addiction, was temporarily living in
Morgan’s father’s home, and had been arrested twice during the case’s pendency. This
evidence sufficed to overcome the presumption that it was not in the girls’ best
interest for Father to be appointed sole managing conservator, and a preponderance
of the evidence supported the trial court’s opposite finding. See Tex. Fam. Code Ann.
§ 105.005. We therefore hold that the trial court did not abuse its discretion by
appointing Father sole managing conservator. We overrule Mother’s first point.
In her second point, Mother alternatively argues that the trial court abused its
discretion by not appointing her as joint managing conservator because the evidence
was insufficient to overcome the presumption that naming both parents as such was
in the girls’ best interest.
As noted, it is a rebuttable presumption that the appointment of the child’s
parents as joint managing conservators is in the child’s best interest. Id. § 153.131(b).
When, as here, an agreed parenting plan is not filed with the trial court, the court may
appoint both parents joint managing conservators only if the appointment is in the
child’s best interest, considering the following factors:
(1) whether the physical, psychological, or emotional needs and
development of the child will benefit from the appointment of joint
managing conservators;
20
(2) the ability of the parents to give first priority to the welfare of the
child and reach shared decisions in the child’s best interest;
(3) whether each parent can encourage and accept a positive relationship
between the child and the other parent;
(4) whether both parents participated in child rearing before the filing of
the suit;
(5) the geographical proximity of the parents’ residences;
(6) if the child is 12 years of age or older, the child’s preference, if any,
regarding the person to have the exclusive right to designate the primary
residence of the child; and
(7) any other relevant factor.
Id. § 153.134(a).
Here, several factors weigh in favor of appointing both parents as joint
managing conservators: both parents love and are bonded with the children, they have
both completed parenting classes, Mother and Father each appear to be able to
“encourage and accept a positive relationship” between the girls and the other parent,
and the parents’ homes are in relatively close geographic proximity. But Mother’s
continued drug use, recent arrests, and lack of housing stability weigh against
appointing her as joint managing conservator.
As noted, Mother tested positive for methamphetamine while pregnant with
Lisa, who was born in early 2019. According to Hall, Mother had continued to use
methamphetamines throughout the case and had tested positive in August 2023. After
that positive test, Mother failed to complete another drug assessment and failed to
complete drug treatment. Hall was concerned that Mother was continuing to use
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drugs because she had been unable to demonstrate to Hall that she had stopped using
methamphetamines and that she had substantially started the methamphetamine-
recovery process. Hall testified that in her opinion, Mother needed, at minimum, out-
patient drug treatment. Father explained that he was concerned that Mother’s drug
use could expose the girls to drugs, drug users, and drug paraphernalia.
Although Mother had plans to move into an apartment, she was temporarily
living in Morgan’s father’s house at the time of trial. Morgan had a “CPS history,” a
criminal history, and a history of methamphetamine use. Mother had also been
arrested twice during the case. In contrast to Mother, Father offered a safe, more
stable environment. The girls were successfully returned to him on a monitored
return. At the time of trial, Father and the girls lived with G.H., who had been the
girls’ primary placement during the case. His testimony regarding his caring for the
girls and their daily routine supported his assertion that he can provide Lisa and
Penny with a permanent, stable home environment going forward. We thus conclude
that this evidence sufficed to overcome the joint-managing-conservator presumption,
and the preponderance of the evidence supported a finding that appointing Father as
Lisa’s and Penny’s sole managing conservator was in their best interest. See id.
§ 105.005. We overrule Mother’s second point.
IV. Conclusion
Having overruled Mother’s two points, we affirm the trial court’s final order.
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/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: May 23, 2024
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