in the Interest of B.C., a Child ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-16-00431-CV
IN THE INTEREST OF B.C., A
CHILD
----------
FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 16-05188-362
----------
MEMORANDUM OPINION1
----------
In this restricted appeal, Appellant M.M. (Mother) challenges the trial
court’s default judgment in the underlying suit affecting the parent-child
1
See Tex. R. App. P. 47.4.
relationship (SAPCR). Because Mother has failed to present an error that is
apparent from the face of the record, we affirm.
I. BACKGROUND
On June 30, 2016, P.T. (Grandmother) filed an original SAPCR seeking to
be appointed as the sole managing conservator of B.C., who, according to the
petition, was eighteen months old. The petition alleged that B.C. was the child of
H.C. (Father) and Mother. The petition further alleged that Grandmother had
standing to file the SAPCR because she had had care, custody, and control over
B.C. for the requisite period required by the family code. See Tex. Fam. Code
Ann. § 102.003(9) (West Supp. 2016) (conferring standing to file an original
SAPCR upon “a person, other than a foster parent, who has had actual care,
control, and possession of the child for at least six months ending not more than
90 days preceding the date of the filing of the petition”). With regard to the issue
of conservatorship over B.C., Grandmother’s petition alleged as follows:
The appointment of the parents as joint managing conservators
would not be in the best interest of [B.C.]. The appointment of the
parents as joint managing conservators will impair the emotional
welfare and physical well-being of [B.C.]. It is in the best interest of
[B.C.] that [Grandmother] be appointed sole managing conservator
of [B.C.].
[Father and Mother] have a history or pattern of child neglect
directed against [B.C.]. [Grandmother] requests that the Court
render a possession order that provides that [Father and Mother’s]
periods of visitation be continuously supervised by an entity or
person chosen by the Court.
2
Mother was served with the suit on July 11, 2016, and Father filed a waiver
of service on July 29, 2016. Neither Father nor Mother filed an answer. The trial
court called the case on August 8, 2016, and it entered its final order the same
day. The order reflects that Mother, “although duly and properly notified, did not
appear and wholly made default.” The order also reflects that Father had waived
issuance and service of citation and that he agreed to the terms of the final order,
as evidenced by his signature indicating that he approved the order “as to form
and content.” The order states that a record of the testimony was waived.
Finding that it was in B.C.’s best interest, the trial court appointed Grandmother
as B.C.’s sole managing conservator and appointed Father and Mother as parent
possessory conservators.
With respect to Mother’s possession of and access to B.C., the trial court’s
order provides as follows:
Considering [B.C.’s] age, developmental status, circumstances,
needs and the best interest of [B.C.] along with the circumstances of
[Mother and Father], the Court finds that that the limited possession
and access provided by this order does not exceed the restrictions
needed to protect the best interest of the child.
IT IS ORDERED that the primary residence of the child, [B.C.],
shall be the residence of [Grandmother]. [Grandmother] shall have
the superior rights of possession of [B.C.] at all times.
IT IS ORDERED that [Mother] shall have possession of and
access to [B.C.] at all times mutually agreed upon in advance by
[Mother] and [Grandmother].
....
3
IT IS ORDERED that if at any time [Grandmother] determines
that supervised access between [B.C.] and either [Father or Mother]
is in the child’s best interest, then [Grandmother] may designate an
appropriate adult to supervise the possession or access to [B.C.] at
such time as the parties may mutually agree.
II. RESTRICTED APPEAL
Mother attempts a restricted appeal from the trial court’s final order. See
Tex. R. App. P. 30. To prevail in her restricted appeal, Mother must show that
(1) she filed a notice of appeal within six months of the date the complained-of
judgment was signed; (2) she was a party to the suit but did not participate in the
hearing that resulted in the judgment; (3) she did not timely file a postjudgment
motion, request findings of fact and conclusions of law, or file a notice of appeal
within the time permitted under rule of appellate procedure 26.1(a); and (4) the
complained-of error is apparent from the face of the appellate record. See Tex.
R. App. P. 26.1(c), 30; Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort
Worth 2009, no pet.); see also Etheredge v. Hidden Valley Airpark Ass’n, Inc.,
169 S.W.3d 378, 381 (Tex. App.—Fort Worth 2005, pet. denied) (op. on reh’g)
(stating restricted appeal requirements should be “liberally construed”). The only
element at issue in this appeal is whether error is apparent on the face of the
record.
In what we construe as a single issue, Mother contends that the face of the
record demonstrates the trial court erred by ordering that she “shall have
possession of and access to [B.C.] at all times mutually agreed upon in advance
by [her] and [Grandmother].” Mother argues that order is an abuse of discretion
4
because it gives Grandmother complete discretion over Mother’s visitation rights.
A trial court’s possession and visitation determinations are reviewed for an abuse
of discretion. Halleman v. Halleman, 379 S.W.3d 443, 447 (Tex. App.—Fort
Worth 2012, no pet.). Under that standard, an appellate court will not disturb the
trial court’s possession or visitation decisions unless the trial court acted without
reference to any guiding rules or principles in making them—unless, in other
words, those determinations were arbitrary or unreasonable. See id.
Mother bases her argument that the trial court’s possession order was an
abuse of discretion entirely upon a portion of our decision in Conn v. Rhodes,
No. 02-08-00420-CV, 2009 WL 2579577, at *4 (Tex. App.—Fort Worth Aug. 20,
2009, no pet.) (mem. op.). In Conn, the trial court had entered a possession
order that “the conservators shall have possession of the child at times mutually
agreed to in advance by the parties.” Conn, 2009 WL 2579577, at *3 (emphasis
in original). Like Mother here, the appellant in Conn argued the trial court erred
by entering that possession order because it gave the child’s managing
conservator complete discretion over the appellant’s visitation rights. Id. Mother
quotes the following portion of our Conn opinion:
A trial court may not give one parent the unbridled discretion,
unenforceable by contempt, to decide whether the other parent may
have access to, or possession of, their children. Thus, when a court
places restrictions or conditions on a conservator’s possession
rights, the court must specifically define those terms in its decree.
The judgment must state, in clear and unambiguous language, what
is required for the conservator to comply, and the terms must be
specific enough to permit the conservator to enforce the judgment by
contempt.
5
Id. at *4 (citations omitted). Mother argues this portion of our Conn opinion
supports her contention that the trial court’s possession order gives Grandmother
the unrestrained discretion to completely deny her possession of B.C.
But in Conn itself, we concluded the opposite. We concluded the trial
court’s possession order providing that “the conservators shall have possession
of the child at times mutually agreed to in advance by the parties” did not
subject [the appellant’s] visitation to [the managing conservator’s]
complete discretion, nor [did] it deprive [the appellant] of possession
altogether. If [the managing conservator] obstructs possession or is
unreasonable with respect to arranging times for [the appellant’s]
visitation with the child, [the appellant] can appear before the trial
court to request specific, workable terms for visitation.
Id. And we ultimately held that possession order was not an abuse of discretion.
Id. (holding “the trial court did not abuse its discretion by making [appellant’s]
visitation schedule subject to the parties’ mutual agreement”). Mother has
presented no argument why a different result should obtain with respect to the
nearly identical possession order here. We conclude, therefore, that Mother has
failed to show the trial court abused its discretion by making her visitation
schedule subject to the parties’ mutual agreement. See id. Accordingly, Mother
has failed to present error that is apparent from the face of the record. See
Watson, 286 S.W.3d at 522. We overrule Mother’s sole issue.
III. CONCLUSION
Having overruled Mother’s sole issue, we affirm the trial court’s judgment.
See Tex. R. App. P. 43.2(a).
6
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
PANEL: WALKER, MEIER, and GABRIEL, JJ.
DELIVERED: October 26, 2017
7