in the Interest of M.M.M., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-09-203-CV
IN THE INTEREST OF M.M.M., A CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
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OPINION
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In two issues, J.M. (Father) appeals portions of the trial court’s order that
appointed E.M. (Mother) as the sole managing conservator of their daughter,
M.M.M.1 We affirm.
Background Facts
On August 4, 2008, two days after M.M.M.’s birth, the Texas
Department of Family and Protective Services (the Department) filed a petition
1
 To protect the privacy of the parties involved in this appeal, we
identify them by initials only. See Tex. Fam. Code Ann. § 109.002(d) (Vernon
2008).
for her protection and conservatorship. An affidavit attached to the petition
related that Mother had erratic behavior at the hospital before and after giving
birth to M.M.M. and that Father did not have stable housing or a well-paying
job. The affidavit asserted that Mother’s behavior was caused by her refusal
to take medication for her apparent mental problems. The trial court initially
authorized M.M.M.’s removal from her parents’ care and named the Department
as M.M.M.’s temporary sole managing conservator.
In September, the Department filed a Family Service Plan that required the
parents to (among other things) comply with mental health and medication
recommendations and participate in parenting classes and individual counseling.
That same month, the trial court ordered the parents to complete these tasks
and named them as M.M.M.’s temporary possessory conservators.
The trial court eventually returned M.M.M. to her parents’ care.
In January 2009, the Department filed another Family Service Plan that
contained several other tasks for the parents to complete. In February, the
Department filed a motion that requested that temporary possessory
conservatorship be removed from Father and remain solely with Mother because
Father had been arrested for assaulting Mother. The trial court granted the
Department’s motion and limited Father’s visitation of M.M.M. to occasions
agreed to and arranged by the Department.
2
The trial of M.M.M.’s conservatorship issues occurred in July. Following
the trial, the court removed M.M.M.’s conservatorship from the Department
and, under the parties’ agreement that was announced at trial, appointed
Mother as her permanent sole managing conservator and Father as her
possessory conservator. The trial court’s order allowed Mother to establish
M.M.M.’s residence without any geographic restriction and stated that Father
“shall have NO unsupervised visits at this time due to his failure to follow the
[Department’s] service plan, failure to support the child[,] and his history of
family violence.” The issues of a lack of a geographic restriction on M.M.M.’s
residence and of Father’s supervised access to her were not part of the parties’
agreement; these issues were contested at trial. Father filed his notice of
appeal.
Father’s Issues on Appeal
In two issues, Father argues that the trial court erred by not
geographically restricting M.M.M.’s domicile and by requiring that his visitation
with her be supervised.
Standard of review
We review the trial court’s decisions on custody, control, possession, and
visitation matters for an abuse of discretion. See Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982); In re M.P.B., 257 S.W.3d 804, 811 (Tex.
3
App.—Dallas 2008, no pet.); In re W.M., 172 S.W.3d 718, 724 (Tex.
App.—Fort Worth 2005, no pet.) (adding that the trial court has “wide latitude
in determining the best interests of a minor child”).
To determine whether a trial court abused its discretion, we must decide
whether the court acted without reference to any guiding rules or principles; in
other words, we must decide whether the act was 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); W.M., 172 S.W.3d at 725. An appellate
court cannot conclude that a trial court abused its discretion merely because
the appellate court would have ruled differently in the same circumstances.
E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.
1995); see Low, 221 S.W.3d at 620.
An abuse of discretion does not occur when the trial court bases its
decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.
1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur
as long as some evidence of substantive and probative character exists to
support the trial court’s decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198,
211 (Tex. 2002); W.M., 172 S.W.3d at 725. We must be cognizant that the
trial court is in a better position to decide custody cases because ”it faced the
parties and their witnesses, observed their demeanor, and had the opportunity
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to evaluate the claims made by each parent.” In re J.R.D., 169 S.W.3d 740,
743 (Tex. App.—Austin 2005, pet. denied).
In our review of a child custody ruling under the abuse of discretion
standard, legal and factual sufficiency are not independent grounds of error but
are relevant factors in deciding whether the trial court abused its discretion.
In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied)
(op. on reh’g); see W.M., 172 S.W.3d at 725. In determining whether there
has been an abuse of discretion because the evidence is legally or factually
insufficient to support the trial court’s decision, we consider whether the trial
court had sufficient information upon which to exercise its discretion and
whether it erred in its application of that discretion. W.M., 172 S.W.3d at 725;
T.D.C., 91 S.W.3d at 872. “The traditional sufficiency review comes into play
with regard to the first question. With regard to the second question, we
determine, based on the elicited evidence, whether the trial court made a
reasonable decision.” W.M., 172 S.W.3d at 725 (footnote omitted).
Mother’s unrestricted right to determine M.M.M.’s domicile
In his first issue, Father contends that the trial court erred by failing to
restrict M.M.M.’s domicile to a specific geographic area. This issue arises
because Mother testified at trial that she wanted to move to California, where
she was born and where her parents live.
5
The law on residency restrictions
Texas does not have any specific statute regarding residency restrictions
in custody cases. See Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002).
However, unless limited by court order, a sole managing conservator, such as
Mother, has the exclusive right to designate the primary residence of a child.
Tex. Fam. Code Ann. § 153.132(1) (Vernon 2008); see In re A.S., 298 S.W.3d
834, 836 (Tex. App.—Amarillo 2009, no pet.). Also, it is the public policy of
this state to assure that a child will have frequent and continuing contact with
parents who have shown the ability to act in the child’s best interest; to provide
a safe, stable, and nonviolent environment for the child; and to encourage
parents to share in the rights and duties of raising their child after the parents
have separated or dissolved their marriage. Tex. Fam. Code Ann. § 153.001(a)
(Vernon 2008). The best interest of the child is always the primary
consideration in resolving issues of conservatorship, possession, and access
concerning a child. Id. § 153.002 (Vernon 2008); Lenz, 79 S.W.3d at 14.
As the Amarillo Court of Appeals recently explained, it is “beyond
question” that the desire of a sole managing conservator to move away from
Texas may affect the statutory goal of continuing contact with a noncustodial
parent. A.S., 298 S.W.3d at 836. However, “[b]ecause the custodial parent
provides the child with a basic quality of life, a child’s best interest is closely
6
intertwined with the well-being of the custodial parent.” Lenz, 79 S.W.3d at
18; see Echols v. Olivarez, 85 S.W.3d 475, 476, 482 (Tex. App.—Austin
2002, no pet.) (affirming the trial court’s decision to allow a child’s mother to
move with the child to Tennessee so that she could take a higher paying job
and explaining that courts must “primarily concentrate on the general quality of
life for both the child and the custodial parent in assessing whether a change
is positive and in the child’s best interest”); see also Sanchez v. Sanchez, No.
04-06-00469-CV, 2007 WL 1888343, at *3–4 (Tex. App.—San Antonio July
3, 2007, pet. denied) (mem. op.) (stating that ordering a residency restriction
“is within the trial court’s discretion based on the best interest of the child” and
holding that the trial court’s decision to not impose the restriction requested by
the father and to allow the mother to move to Mississippi was not an abuse of
discretion), cert. denied, 129 S. Ct. 71 (2008).
Father’s analysis in his brief solely concerns five factors for geographic
restrictions that arise from decisions in other jurisdictions and that were
discussed in the Lenz opinion: (1) the reasons for and against the move, (2) the
effect on extended family relationships, (3) the effect on visitation and
communication with the noncustodial parent to maintain a full and continuous
relationship with the child, (4) the possibility of a visitation schedule allowing
the continuation of a meaningful relationship between the noncustodial parent
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and the child, and (5) the nature of the child’s existing contact with both
parents, and the child’s age, community ties, and health and educational needs.
See Lenz, 79 S.W.3d at 15–16. However, the supreme court stated that while
these factors (which were not the only factors discussed in the opinion) “may
assist [courts] in giving meaning to our best-interest standard in the relocation
context,” it also indicated that there are no formulaic, bright-line tests in
geographic restriction cases. Id. at 19.
Analysis
The record establishes the turbulent history of Father’s and Mother’s
marriage, which was apparently drawing to an end because Father had filed for
divorce at the time of trial. According to Mother, she and Father met in
California in 2001. Since that time, Father has been arrested multiple times for
assaulting Mother. 2 Specifically, Father’s testimony established that he was
arrested for throwing a phone at Mother when they were not yet married, that
he was arrested in 2007 based on another incident involving Mother, and that
he was convicted for an assault that occurred in December 2008, while this
case was pending in the trial court. Father said that the 2008 assault occurred
2
 Mother said that Father has assaulted her and has been arrested for
doing so four or five times.
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during an argument about M.M.M. traveling to California and that in the midst
of pushing and shoving between him and Mother, he “grabbed her arm.”
Father testified that the case arising from his 2007 assault arrest was
dismissed. He said that the 2008 assault was precipitated by Mother’s
throwing a cup of hot noodles on him and that Mother assaulted him on the day
before trial by hitting him and scratching him with her nails. Mother said that
she did not see Father the day before trial.
Father was sentenced to forty-five days’ confinement as his punishment
for the December 2008 assault. Although Father and Mother stopped living
together after the assault occurred, according to Mother, Father’s inappropriate
acts toward her were continuing at the time of trial, because during one of
Father’s visits with M.M.M. about a week before trial, he stole her cell phone
and would not return it to her despite her telling him that she needed the phone
to call for help if M.M.M. had an emergency.
Father took a battery intervention class while he was in jail for assaulting
Mother. However, Mother testified that when Father came to visit M.M.M.
about a week before trial and discovered that Mother was dating someone, he
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threatened to kill her. 3 Mother testified that Father’s threat caused her desire
to move away “as soon as possible.”
Mother testified about the benefits of her proposed move. 4 She said that
she did not have any support system in Texas and that in California, she could
stay at her mother’s home with M.M.M. for a year while she looked for a job.
She said that her mother supports her financially. 5 She proposed that Father
could visit M.M.M. in California “whenever he wants to” and that Mother could
travel with M.M.M. to see Father in Texas. She said that she would pay for
trips to Texas so that M.M.M. could see Father but that she would not pay for
Father’s trips to California to see M.M.M.
Father said that Mother’s parents in California are “very honorable
people.” However, he said that money would be a barrier to his visiting
M.M.M. if she lived in California and that he would not be able to have a
3
 Father said that he did not threaten to kill Mother but that he said,
without intending any threat of physical violence, “I don’t know what I would
do . . . if I ever found you with another man.”
4
 Although Mother planned to move to California, she indicated that she
would not be able to do so until she had more money and received final
approval about the details of the move from her mother.
5
 Mother has not worked since M.M.M.’s birth, but every month, she
receives $800 from her parents and $650 from social security insurance based
on her bipolar disorder. She also receives food stamps, and Father owes her
$200 per month for child support.
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relationship with her if she lived there. Father testified that he has “never
stopped seeing [M.M.M.] since she’s been born,” and he specified that M.M.M.
even saw him during the approximately fifteen days that he was in jail because
of his assault conviction. Father said that he and his family went to visit
M.M.M. just days before trial. Although Mother said that the visit was the first
time that Father’s father had ever seen M.M.M., she acknowledged that
Father’s mother and aunt had visited M.M.M. before.
However, some of Father’s actions belie his stated desire to remain active
in M.M.M.’s life. For instance, although Father said that he had bought M.M.M.
some diapers and had given Mother about $1,000 to help with M.M.M.’s care,
Mother said that Father had not bought diapers and had not given her money
in seven months preceding the trial, and the evidence indicated that he was not
likely to support M.M.M. in the near future because he was unemployed.
Also, at the time of trial, Father had not successfully completed any of the
services from the Department’s Family Service Plan. Finally, Mother testified
that when she lived with Father, he did not give M.M.M. baths and rarely
changed her diapers or gave her bottles because he would “tell [Mother] it’s
[her] job.”
Although some of the evidence that is contained in the record and that
is desribed above favors Father’s position, the trial court did not abuse its
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discretion by declining to include a geographic restriction in its order because
there is some evidence of substantive and probative character to favor allowing
Mother to move with M.M.M. to California. See Butnaru, 84 S.W.3d at 211;
W.M., 172 S.W.3d at 725. Specifically, if the trial court considered Father’s
history of assaulting Mother and resolved the conflicting evidence at trial in
Mother’s favor, including determining that Father had earnestly threatened
Mother’s life, then we conclude that it acted reasonably by allowing Mother and
M.M.M. to move so that they could avoid a violent environment. See Tex.
Fam. Code Ann. § 153.001(a)(2) (providing that the policy of the State is to
provide a safe, nonviolent environment for children); see also In re Rhodes, 293
S.W.3d 342, 344 (Tex. App.—Fort Worth 2009, orig. proceeding) (explaining
that as “the factfinder, the trial court weighs the evidence and judges a
witness’s credibility, and the trial court may accept or reject any witness’s
testimony in whole or in part”); In re R.D.S., 902 S.W.2d 714, 716 (Tex.
App.—Amarillo 1995, no pet.) (“The appellate court must recall that the trier
of fact has the authority to weigh the evidence, draw reasonable inferences
therefrom, and choose between conflicting inferences.”).
Next, the trial court could have reasonably concluded that although Father
saw M.M.M. regularly, his failure to support M.M.M. financially (if Mother’s
testimony is true) and his failure to complete any of his service plan showed
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that he did not have the ability to act in her best interest and that he was
therefore not entitled to frequent and continuing contact with her. See Tex.
Fam. Code Ann. § 153.001(a)(1). The trial court could have also reasonably
found that Mother’s increased support structure in California would enable her
to better provide for M.M.M.’s needs. And although Mother’s proposed move
to California means that Father and his family might see M.M.M. less than they
otherwise would, 6 Mother agreed to travel to Texas at her expense so that
M.M.M. could visit them, and the move to California means that M.M.M. can
have a greater connection with Mother’s parents than she would while living
in Texas.
Finally, Father complains that a provision in the trial court’s order allows
him only to visit M.M.M. “in Texas (so long as [Mother] resides in Texas)” and
that the order therefore does not grant him any visitation rights if Mother leaves
Texas.7 But the record on appeal indicates that Mother’s move to California is
still speculative. If she does move, Father could seek to modify the court’s
6
 Mother conceded that Father would be able to travel to California only
a couple of times a year, but she said that Father could bring his family to
California when he visited. None of Father’s family testified about their
relationship with M.M.M. or their desires related to her.
7
 The order states that Father may visit M.M.M. two Saturdays per
month for an hour on each Saturday. Father has not asserted on appeal that
the trial court erred in its determination of the frequency or length of his visits
with M.M.M.
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visitation order at that time. Thus, we conclude that the trial court’s decision
to not geographically restrict M.M.M.’s domicile should not be reversed.
For all of these reasons, we conclude that the trial court did not abuse its
discretion by declining to include a geographic restriction on M.M.M.’s domicile,
and we overrule Father’s first issue.
The requirement that Father’s visitation be supervised
In his second issue, Father contends that the trial court abused its
discretion by ordering that his visitation with M.M.M. must be supervised.
Section 153.004 of the family code
A trial court “shall consider the commission of family violence in
determining whether to deny, restrict, or limit the possession of a child by a
parent who is appointed as a possessory conservator.” Tex. Fam. Code Ann.
§ 153.004(c) (Vernon Supp. 2009); see In re B.N.F., 120 S.W.3d 873, 878
(Tex. App.—Fort Worth 2003, no pet.). A court “may not allow” a parent to
have access to a child when it is shown that there is a history family violence
during the pendency of the suit unless the court
renders a possession order that is designed to protect the safety
and well-being of the child and any other person who has been a
victim of family violence committed by the parent and that may
include a requirement that:
(A) the periods of access be continuously supervised by an
entity or person chosen by the court.
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Tex. Fam. Code Ann. § 153.004(d)(2)(A); see In re R.T.H., 175 S.W.3d 519,
521 (Tex. App.—Fort Worth 2005, no pet.) (explaining that a single act of
violence may constitute a “history” of abuse under section 153.004). It is a
“rebuttable presumption that it is not in the best interest of a child for a parent
to have unsupervised visitation with the child if credible evidence is presented
of a history or pattern of [physical abuse] by that parent directed against the
other parent.” Tex. Fam. Code Ann. § 153.004(e).
Analysis
Beyond creating her desire to move to California, Father’s alleged threat
to kill Mother and his assaults on her made her concerned about her safety and
M.M.M.’s safety if she had to attend Father’s visits with M.M.M. If the trial
court considered Father’s recent assault of Mother and his pattern of assaulting
her and believed that Father had seriously threatened Mother’s life, we hold
that it did not act unreasonably because supervised visitation at a visitation
center was one of the trial court’s options granted by the legislature under
those circumstances. See Tex. Fam. Code Ann. § 153.004(d)(2)(A).
Evidence unrelated to Father’s assaults and threats also supports the trial
court’s supervision decision—Mother said that Father has threatened to
abscond out of state with M.M.M. See In re Sigmar, 270 S.W.3d 289, 307
(Tex. App.—Waco 2008, orig. proceeding) (holding that the trial court did not
15
abuse its discretion by ordering supervised visitation as an abduction prevention
measure).
Based on these facts and the other facts recited above, we hold that
there was some evidence of substantive and probative character for the trial
court to find that Father’s supervised visitation was in M.M.M.’s best interests,
and we therefore overrule Father’s second issue. See Tex. Fam. Code Ann.
§§ 153.002, .004, .193 (Vernon 2008); Butnaru, 84 S.W.3d at 211; W.M.,
172 S.W.3d at 725.
Conclusion
Having overruled both of Father’s issues, we affirm the trial court’s
judgment.
TERRIE LIVINGSTON
JUSTICE
PANEL: LIVINGSTON, WALKER, and MCCOY, JJ.
DELIVERED: March 4, 2010
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