Date: 05-14-2015

Case Style: In the interest of E.S.H., a child

Case Number: 11-14-00328-CV

Judge: Jim R. Wright

Court: Texas Court of Appeals, Eleventh Court of Appeal from 318th District Court of Midland County

Plaintiff's Attorney: Ellen Griffith, Assistant, Luisa P. Marrero, Appellate Attorney and Russell Malm, County Attorney for Department of Family & Protective Services

Defendant's Attorney: David G. Rogers for Holly Jolinda Heffernan

Description: This appeal stems from an order entered in a suit affecting the parent-child
relationship with respect to the child, E.S.H. The suit was filed by the Department
of Family and Protective Services. The trial court held a bench trial and entered an
order in which it appointed the child’s maternal grandfather as the sole managing
conservator, removed the Department as a conservator, and appointed the child’s
parents as possessory conservators of the child. The child’s mother filed a notice of
appeal. We affirm.
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On appeal, the mother presents two issues for review. In her first issue, she
asserts that the trial court erred when it ordered that her visitation with the child be
supervised. In her second issue, she contends that the trial court erred in appointing
the maternal grandfather to be the child’s sole managing conservator, while
relegating her to possessory conservator. In these issues, Appellant argues that the
evidence was insufficient to support the trial court’s order.
We review a determination of conservatorship for abuse of discretion.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Under this standard, legal
and factual sufficiency challenges are not independent grounds of error but factors
used to determine whether the trial court abused its discretion. In re A.D.A., No. 11-
12-00002-CV, 2012 WL 4955270, at *1 (Tex. App.—Eastland Oct. 18, 2012, no
pet.) (mem. op.) (citing Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San
Antonio 2007, no pet.); London v. London, 192 S.W.3d 6, 14 (Tex. App.—Houston
[14th Dist.] 2005, pet. denied)). The best interest of the child is always the primary
consideration of the court in determining managing conservatorship. TEX. FAM.
CODE ANN. § 153.002 (West 2014).
Although trial courts are afforded broad discretion in deciding family law
questions, the legislature has explicitly limited the exercise of that discretion when
a nonparent seeks to be appointed as managing conservator. Lewelling v. Lewelling,
796 S.W.2d 164, 168 (Tex. 1990). When a court determines conservatorship
between a parent and a nonparent, a presumption exists that appointing the parent as
the sole managing conservator is in the child’s best interest; this presumption is
deeply embedded in Texas law. FAM. § 153.131; Lewelling, 796 S.W.2d at 166.
Section 153.131(a) provides:
[U]nless the court finds that appointment of the parent or parents would
not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional
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development, a parent shall be appointed sole managing conservator or
both parents shall be appointed as joint managing conservators of the
child.
The statutory language in Section 153.131(a) creates a strong presumption in favor
of parental custody and imposes a heavy burden on a nonparent. Lewelling, 796
S.W.2d at 167.
Evidence showing that the nonparent would be a better custodian of the child
does not suffice, and close calls should be decided in favor of the parent. Id. at 167–
68. The nonparent may rebut the presumption with affirmative proof, by a
preponderance of the evidence, that appointing the parent as managing conservator
would significantly impair the child, either physically or emotionally. Id. at 167; see
also In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Usually, the nonparent must
present evidence that shows a parent’s conduct would have a detrimental effect.
Gray v. Shook, 329 S.W.3d 186, 197 (Tex. App.—Corpus Christi 2010), aff’d in part
and rev’d in part, 381 S.W.3d 540 (Tex. 2012); see Lewelling, 796 S.W.3d at 167.
Additionally, a trial court may determine that unrestricted possession by a
parent who is appointed as a possessory conservator would endanger the physical or
emotional welfare of the child but that restricted possession or access would not. In
re Walters, 39 S.W.3d 280, 286 (Tex. App.—Texarkana 2001, no pet.). The terms
of an order that impose restrictions or limitations on a parent’s right to possession of
or access to a child may not exceed those that are required to protect the best interest
of the child. FAM. § 153.193. The trial court’s order restricted Appellant’s
possession of and access to the child to “all times mutually agreed between”
Appellant and the grandfather and, “failing mutual agreement, under the supervision
of Hannah’s House.”
None of the parties requested findings of fact or conclusions of law, and the
trial court did not enter any findings or conclusions. See FAM. §153.258. Therefore,
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we must infer that the trial court made all the findings necessary to support its final
order, and we must affirm that order if it can be upheld on any legal theory that finds
support in the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).
In the present case, five witnesses testified at trial: Appellant, the child’s
father, the child’s maternal grandfather, a Department caseworker, and a friend of
Appellant. The trial court also conferred with the child outside the presence of the
parties.
The grandfather testified about Appellant’s irrational and angry behavior and
her “uncontrollable rage.” Due to Appellant’s behavior, the grandfather was
concerned for the child’s safety when the child was with Appellant. He was also
concerned for the child’s safety because of domestic violence issues. The child had
been present and called the police when Appellant’s boyfriend committed domestic
violence against Appellant. Appellant continued the relationship with her abuser—
a relationship that the grandfather referred to as a “volatile combination.” The
grandfather was also concerned that, in recent years, the child was “not well taken
care of” and was in need of basic hygiene. Appellant was no longer providing a
stable home for the child, and the child had missed more than one month of school
prior to her removal in October.
The child lived with her grandfather while this case was pending. She went
to counseling once a week, and the grandfather intended to continue the counseling.
The grandfather did not want Appellant’s parental rights to be terminated because
the child is very attached to Appellant—despite the fact that Appellant only visited
her three times while this case was pending. The grandfather did not believe that he
could adequately supervise any visits with Appellant; he testified that Appellant,
while talking to her attorney, had threatened “to get in her car and bring her 45 to
kill” the grandfather.
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Samantha Clough, a caseworker for the Department, was assigned to this case
in March 2014. Clough was concerned about the number of times Appellant had
moved during a time span of one and one-half years and about Appellant’s continued
relationship with a boyfriend who had committed domestic violence against
Appellant. Appellant’s behavior was also a concern. Appellant was not cooperative
and was not able to communicate with the Department in a respectful manner, and
she had not complied with her service plan.
Clough recommended that the grandfather be appointed as the primary
custodian of the child and that Appellant’s visitation with the child be supervised at
a visitation center such as Hannah’s House. Clough believed this to be in the child’s
best interest and stated that the grandfather had met all of the child’s needs and had
provided the child with an appropriate home. The child was doing well in the
grandfather’s home and was involved in a lot of activities.
Appellant wanted primary custody of the child, but Appellant’s “plan B” was
for the child to be placed with Appellant’s friend, Dana. However, evidence was
presented that Appellant had a history of “disappear[ing]” with the child. Appellant
had also refused to permit the child’s father to visit the child. The child’s father had
concerns about Appellant’s “rage.” Dana agreed that Appellant had “an explosive
temper,” which was exacerbated when the child was removed from Appellant’s care.
The child’s father said that Appellant had “never been able to present [the child]
with a stable environment.” Additionally, Appellant admitted that she smoked
marihuana on occasion when the child was not at home.
After reviewing the record, we hold that the trial court did not abuse its
discretion when it appointed the maternal grandfather to be the child’s sole managing
conservator or when it placed restrictions on Appellant’s visitation. The evidence
supports the trial court’s implied findings that (1) the restrictions and limitations
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imposed on Appellant’s right to possession of or access to the child were required to
protect the best interest of the child and (2) the child’s physical health or emotional
development would be significantly impaired if Appellant were appointed as a
managing conservator. See FAM. §§ 153.131(a), 153.193. Both of Appellant’s
issues are overruled.

Outcome: We affirm the order of the trial court.
JIM R. WRIGHT
CHIEF JUSTICE
May 14, 2015
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

Plaintiff's Experts:

Defendant's Experts:

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