in the Interest of L. R. A. AKA L. A., a Child v. Department of Family and Protective Services

Opinion issued March 12, 2019
In The
Court of Appeals
For The
First District of Texas
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NO. 01-18-00840-CV
NO. 01-18-00843-CV
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IN THE INTEREST OF K. D. B., A Child
IN THE INTEREST OF L.R.A., A Child
On Appeal from the 312th District Court
Harris County, Texas
Trial Court Case Nos. 2014-61822 and 2003-69065
CONCURRING AND DISSENTING OPINION
Because this is a modification of conservatorship, possession, and access,
the Texas Department of Family and Protective Services only needed to show by a
preponderance of the evidence that the modifications were in the best interest of
the child. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (standard of proof for
conservatorship decisions is preponderance of the evidence). Because our review is
only for an abuse of the trial court’s discretion, I concur with the Court’s opinion
as to issues one and two, the modification of the conservatorship orders.
But the Department also bore the burden of coming forward with evidence
concerning Laura’s and Kevin’s best interests as to modification of visitation with
their mother, which has different considerations. See TEX. FAM. CODE §§ 156.001,
.101(a). Because the record is bereft of evidence indicating that requiring
supervised visitation and possession is in the best interests of the children,
particularly Laura, I disagree that the Department has overcome the presumption
against such restricted access and therefore dissent as to issue three. See id.
§ 153.252.
No one disputes that Laura and Kevin’s mother loves them and makes
efforts to be involved in their lives. There is no suggestion that Laura and Kevin’s
mother has behaved inappropriately toward them or mistreated them during visits,
only that the fathers do not want to be responsible for supervising the visits.
Compare with In re S.N.Z., 421 S.W.3d 899, 907 (Tex. App.—Dallas 2014, pet.
denied) (affirming supervised visitation where trial court found mother had a
history of neglecting and abusing the child and there was a legitimate fear of
mother absconding with the child). There was no testimony from the fathers about
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why they preferred supervised visitation. The fact that Laura and Kevin’s mother
has tested positive for marijuana and PCP does not support upsetting the
presumption of normal, unsupervised visitation, without an indication that she used
these substances around her children or that her use of these substances affected
her interactions with them. Cf. In re N.J.H., No. 01-18-00564-CV, 2018 WL
6617360, at *9 (Tex. App.—Houston [1st Dist.] 2018, no pet. h.) (Brown, J.,
concurring) (mem. op.) (in termination case, reliance on marijuana use for
endangerment finding should be tied to evidence of impairment or other risk to a
child’s health or safety).
Moreover, vague allusions to the mother’s mental health or her hostility
toward the Department do not permit a conclusion that her children would be better
off never seeing her without direct supervision, even in a public place. It does not
appear that anyone asked Laura whether she wanted to have only supervised access
to her mother. Children require frequent contact with a parent to maintain a close
and continuing relationship. TEX. FAM. CODE § 153.251(b); see In re M.M.S., 256
S.W.3d 470, 476–77 (Tex. App.—Dallas 2008, no pet.) (court violated public
policy under Texas Family Code § 153.251 and abused its discretion by modifying
possession order to limit the father’s contact with children without evidence that
doing so was in the children’s best interests). Because there was insufficient
evidence that supervised visitation was in the children’s best interests,
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I respectfully dissent from the portion of the Court’s opinion affirming the trial
court’s order limiting the mother to supervised visitation.
Sarah Beth Landau
Justice
Panel consists of Justices Keyes, Higley, and Landau.
Landau, J., concurring in part and dissenting in part.
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