in the Interest of K.E.S. and L.R.S., Children

Opinion filed January 22, 2021
In The
Eleventh Court of Appeals
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No. 11-20-00167-CV
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IN THE INTEREST OF K.E.S. AND L.R.S., CHILDREN
On Appeal from the 35th District Court
Brown County, Texas
Trial Court Cause No. CV 18-10-417
MEMORAND U M OPI NI ON
This appeal stems from an order entered in a suit affecting the parent–child
relationship. The suit was filed by the Department of Family and Protective
Services. The trial court held a bench trial and entered a final order in which it
(1) appointed the parents as joint managing conservators of the children,
(2) removed the Department as a conservator, (3) gave the father the exclusive right
to establish the residence of the children, (4) limited the mother’s possession of and
access to the children, and (5) ordered the mother to pay child support. The mother
filed a notice of appeal and, on appeal, presents three issues related to the custody
provisions in the trial court’s order. We affirm the trial court’s order.
In her first issue, Appellant asserts that the trial court erred when it delegated
to the father its authority to determine the mother’s access to the children. In her
second issue, Appellant contends that the trial court abused its discretion when it
deviated from the standard possession order without entering any findings to support
the rebuttal of the standard possession presumption under the Family Code. See
TEX. FAM. CODE ANN. § 153.252 (West 2014). Similarly, Appellant asserts in her
third issue that the trial court abused its discretion because it made no findings to
support its determination that the standard possession order was inappropriate or
unworkable under the Family Code. See id. § 153.253.
Because Appellant complains, in her first issue, about the terms of the trial
court’s final order with respect to the custody of the children, we set out the relevant
provisions of that order here:
6.1. The Court finds that the circumstances of the [children] . . . ,
conservators or other party affected by the prior orders for
conservatorship in this case have materially and substantially changed
since rendition of the prior order, and that the appointment of [the father
and the mother] as joint managing conservator would be a positive
improvement for the [children].
6.2. IT IS THEREFORE ORDERED that [the father and the
mother] are appointed Joint Managing Conservators of the [children]
. . . . [The father] has the exclusive right to establish the residence of
the child without geographic restriction.
....
8.3.7. IT IS ORDERED that the conservators shall have
possession of the children at times mutually agreed to in advance by the
parties and, in the absence of mutual agreement, as specified in
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Attachment A to this order, which is incorporated herein as if set out
verbatim in this paragraph.
Attachment A provides in relevant part as follows:
21. IT IS ORDERED that Respondent Mother, . . . named as
joint managing conservator of the [children], shall have possession and
access as follows:
21.1. For a period of ninety days from the date of
these orders, Respondent Mother . . . shall have four hours
of weekly supervised visits with the children supervised
by . . . .
21.2. At the end of the first ninety day period,
Respondent Mother . . . shall commence, for an additional
ninety day period, unsupervised periods of possession and
access to the children on the first and third Saturdays of
each month starting at 10:00am and ending at 6:00pm . . . .
21.3. At the end of the second ninety day period,
Respondent Mother . . . shall commence unsupervised
periods of possession and access to the children on the first
and third weekends of each month commencing at 6:00pm
on Friday and ending at 6:00pm on Sunday . . . .
21.4. Respondent [Father] shall have the right, up
to four times per year, to request [that] the Respondent
Mother . . . submit to a urinalysis or hair follicle substance
abuse test . . . .
21.5. In the event a substance abuse test of
Respondent Mother . . . is positive for any illegal
substance, her rights of possession and access shall re-start
at Phase One.
Appellant contends that the trial court abused its discretion when, in the
above-quoted provisions, it delegated its judicial authority to the father. According
to Appellant, the trial court improperly delegated its authority to determine her
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access to the children, which was a nondelegable duty. See In re Webster, 982
S.W.2d 526, 528 (Tex. App.—Amarillo 1998, no pet.). We agree with the general
proposition asserted by Appellant: a trial court may not delegate its authority or
relinquish its powers to others. See id. However, we do not agree with Appellant
that the trial court in this case delegated its authority or relinquished its powers to
the father.
Rather, the trial court entered a final order that contained specific provisions
for Appellant’s possession of and access to the children. When a court places
restrictions or conditions on a conservator’s possession, the court must specifically
set out those restrictions or conditions. In re A.L.E., 279 S.W.3d 424, 432 (Tex.
App.—Houston [14th Dist.] 2009, no pet.); In re A.P.S., 54 S.W.3d 493, 499 (Tex.
App.—Texarkana 2001, no pet.). Similar to the order at issue in A.L.E., the
provisions in the order before us did not delegate to the father any authority to deny
Appellant her right to possession of the children, nor did those provisions give the
father discretion to deny Appellant her right to possession of or access to the
children. See A.L.E., 279 S.W.3d at 432–34. The trial court merely gave the father
a right to request that Appellant take a drug test four times a year. The father had no
discretion with respect to the results of the drug tests or to Appellant’s possession of
the children based upon those results. The trial court’s order contained specific
provisions for the consequences of a positive drug test result. We hold that the trial
court did not improperly delegate its authority to determine Appellant’s possession
of or access to the children. Accordingly, we overrule Appellant’s first issue.
In her second and third issues, Appellant complains of the lack of findings of
fact related to two sections of the Family Code. Both of those sections involve the
standard possession order; the trial court here did not follow the terms of the standard
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possession order. See FAM. §§ 153.311–.316 (West 2014 & Supp. 2020). The
statute to which Appellant refers in her second issue provides that “there is a
rebuttable presumption that the standard possession order” is in the best interest of
a child and that the standard possession order provides for the “reasonable minimum
possession of a child for a parent named as a possessory conservator or joint
managing conservator.” FAM. § 153.252. The statute to which Appellant refers in
her third issue provides that a trial court “shall render an order that grants periods of
possession of the child as similar as possible to those provided by the standard
possession order if the work schedule or other special circumstances . . . make the
standard order unworkable or inappropriate.” Id. § 153.253.
On appeal, Appellant does not assert that the evidence presented at trial was
insufficient to support a finding under Section 153.252 or Section 153.253.
Appellant instead asserts that the trial court abused its discretion when it failed to
enter findings of fact to support the trial court’s conclusions under these statutes.
The record shows that, after conducting a bench trial, the trial court penned a
written document that was signed by the judge and sent to the parties prior to the
entry of the final order. In that document, which the trial court referred to as
“FINDINGS AND ORDERS AFTER BENCH TRIAL,” the trial court set forth the
findings and orders that needed to be included in the final judgment. At the end of
the document, the trial court included the following language: “The Court requests
the Department prepare and submit to the Court for entry a Final Order in Suit
Affecting The Parent-Child Relationship reflecting the findings and orders
announced by the Court.” Appellant refers to this document as the trial court’s
findings of fact and conclusions of law and complains about the lack of findings of
fact related to Sections 153.252 and 153.253.
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This court is of the opinion that the above-mentioned document, Findings and
Orders After Bench Trial, was not intended to, and does not, contain “findings of
fact” as that term is used in Section 153.258 of the Family Code and in Rules 296,
297, 298, and 299 of the Texas Rules of Civil Procedure. See FAM. § 153.258
(requiring that trial court “on request by a party” state in writing the specific reasons
for its variance from the standard possession order); TEX. R. CIV. P. 296–299.
Nothing in the record or in the “Findings and Orders After Bench Trial” indicates
that the trial court intended for that document to be deemed the trial court’s findings
of fact and conclusions of law. Instead, with that document, the trial court merely
informed the parties of its rulings and requested that a formal, final judgment be
prepared and submitted to the trial court. We note that findings of fact (1) shall not
be recited in a judgment and (2) shall be filed as a document separate and apart from
the judgment. TEX. R. CIV. P. 299a.
A trial court is not required to state in writing its specific reasons for any
variance from the standard possession order unless one of the parties files a request
for the trial court to do so. FAM. § 153.258(a). “A request for findings of fact” under
Section 153.258 “must conform to the Texas Rules of Civil Procedure.” Id.
§ 153.258(b). Under Rule 296, a request for findings of fact and conclusions of law
shall be filed with the clerk of the trial court within twenty days after the trial court
signs the judgment. TEX. R. CIV. P. 296. The clerk’s record in this cause does not
contain any request for findings of fact, nor does it contain any request for additional
or amended findings of fact. See TEX. R. CIV. P. 296, 298. When a party fails to file
a request for findings of fact as required by Section 153.258, all findings necessary
to support the trial court’s judgment are implied. In re P.A.C., 498 S.W.3d 210, 217
(Tex. App.—Houston [14th Dist.] 2016, pet. denied).
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Because Appellant did not request that the trial court enter findings of fact
regarding the trial court’s specific reasons for the variance from the standard
possession order, the trial court was not required to enter any such findings. See
FAM. § 153.258. We hold, therefore, that the trial court did not abuse its discretion
when it failed to do so. We overrule Appellant’s second and third issues.
We affirm the order of the trial court.
JIM R. WRIGHT
SENIOR CHIEF JUSTICE
January 22, 2021
Panel consists of: Bailey, C.J.,
Trotter, J., and Wright, S.C.J. 1
Williams, J., not participating.
1
Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.
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