COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00171-CV
IN THE INTEREST OF S.D., JR., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-97991J-13
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MEMORANDUM OPINION 1
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After the death of her thirty-two-month-old son, Q, Mother was arrested
and confined in jail. The Texas Department of Family and Protective Services
(TDFPS) placed Q’s younger brother, Q2, in foster care for a short time but then
placed him with his maternal great-uncle and great-aunt T.J. and L.J. (the Js),
who live hours away in East Texas, near Q2’s other siblings. Mother delivered
1
See Tex. R. App. P. 47.4.
another child, S.D. Jr. (Son), during her incarceration. TDFPS placed him in
foster care upon his release from the hospital after his birth, but about two
months later, TDFPS also placed him with the Js. 2 TDFPS filed a petition for
termination and conservatorship of Son but ultimately abandoned its termination
claim and sought to place the child in the joint managing conservatorship of the
Js. After a trial, the trial court named Father and the Js joint managing
conservators (JMCs) of Son but gave the Js the exclusive right to determine his
primary residence instead of Father. The trial court gave Father standard
possession and prohibited any visitation between Mother and Son. (Mother
appeared at trial solely through counsel and is not part of this appeal.)
In one issue, Father complains that the evidence was insufficient to
overcome the parental presumption in section 153.131 of the family code and to
justify the trial court’s naming the Js as JMCs with the exclusive right to
determine Son’s primary residence. Because we hold that TDFPS rebutted the
parental presumption and that the trial court did not abuse its discretion by
naming the Js as additional JMCs or by giving them the exclusive right to
determine the child’s primary residence, we affirm the trial court’s judgment.
2
The children discussed in this opinion are referred to as: “Q,” the
deceased child; “Q2,” his younger brother; and “Son,” their younger half-brother,
who is the subject of this case. To improve readability, the opinion refers to
these children by these letters and fictitious names throughout, even in
quotations, without the use of brackets.
2
Statement of Facts
Father had a relationship with Mother for two to five years before the early
2014 trial on TDFPS’s suit affecting the parent-child relationship (SAPCR) of
Son. The evidence on whether the relationship was ongoing conflicted. Much of
the trial focused on the death of Mother’s son Q; Father’s part in it, if any; his
level of remorse; and any changes the event wrought in him.
Q’s Death
On the morning of June 20, 2012, after spending the night at Mother’s
apartment, Father lay in bed. He heard from another room Mother yelling and
hitting her son Q with an unknown implement that made a “popping” noise. He
heard Q crying. Q was thirty-two months old and weighed twenty-two pounds.
Father testified that Q
had this breathing thing, like, when his momma had whooped him.
He had like a (indicating), like, you know, some kind of . . . I don’t
know what it was, but I asked her about it. She said, “He always do
that. He do that so—getting at me, because he mad at me for
whooping his butt.” That’s what she told me.
Father testified that the sound he described sounded like Q was having
trouble breathing and that the sound began after Mother began hitting him. Q
continued to cry for about fifteen to twenty minutes after Mother left for work.
She left Q and her younger son Q2, who was about fifteen months old, in
Father’s care.
At around 10 or 10:30 a.m., Father got up to make breakfast. He testified
that Q was no longer making the sound that sounded like he was having trouble
3
breathing. Father sat Q2 in front of his bowl to eat and called Q to come eat but
got no response. Father testified that Mother had told him not to force Q to eat if
he did not want to. At that time, Q was lying on a pallet on the living room floor.
Father testified that it looked like Q was sleeping, which would not have been
that unusual. Father also testified that he thought that Q was probably asleep
because he had finally stopped crying. But Father did not go near him. Instead,
Father went back to bed and watched television.
About ninety minutes later, at “[e]leven something, close to twelve,” Father
got up to make sandwiches for lunch. When lunch was ready, he called Q and
went to where he was lying on the floor. Father testified that only then did he see
“the bruises and all that stuff on Q’s back and the one on his forehead.” Father
did not pick the child up. In fact, Father testified that he never picked Q up:
He’s not my son, first. I know her . . . baby daddy. I don’t even—
you know, I don’t—me and him, we know each other, so I’m not
fixing to try to raise this man’s kid. I don’t mess with him at all. I
don’t—it’s not like he was my son and I was interacting with Q or
anything like that. Me and Q, we wasn’t—we didn’t have that bond
like that.
After noticing the marks on Q, Father went to the bedroom, texted Mother,
and called the person with whom she had ridden to work. Mother came home in
fifteen to thirty minutes. After Mother arrived home, she picked Q up. To Father,
“it just looked like he was just—like, dead asleep. But it’s like he was just limp.”
Father testified that he then called 911. He told Mother to put Q down. Mother
and her friend performed CPR on Q. Father patted Q’s face and noticed that the
4
child was not moving but did not notice whether Q was cold and did not check for
a pulse because he did not know how.
The fire department report reflects that the 911 call was received at 1:10
p.m., that the emergency medical personnel arrived at the apartment four
minutes later, and that Q was “cold” and “pulseless” when they arrived. The
code blue occurred at 1:30 p.m., before Q arrived at the hospital. Medical
records show that Q arrived at the hospital at 1:38 p.m. and was pronounced
dead at 1:49 p.m. At thirty-two inches tall with a weight of twenty-two pounds, he
was below the fifth percentile in both height and weight. He had abrasions on his
left temple, physical bruises on the left side of his face, and at least eleven old
scars on the buttocks, legs, and back. The medical examiner ruled the death a
homicide caused by Battered Child Syndrome.
Aftermath of Q’s Death
Mother was arrested for Q’s death. Grand Prairie police interviewed
Father about Q’s death, but he was not charged.
Jeremy Dickinson, a Child Protective Services (CPS) investigative
supervisor, investigated a referral concerning Q and Q2 after Q’s death. The
allegations were physical abuse, neglectful supervision, medical neglect, and
emotional abuse. Dickinson explained that CPS was contacted when Q died
after “severe physical abuse, and there w[ere] concerns for . . . how that
occurred, as well as Q2 in the home. And that’s when [CPS] became involved
and investigated.”
5
The disposition regarding the allegation of medical neglect against Father
was reason to believe and was ranked “fatal”: “[Father] was left as a caregiver
for Q after he had been beaten by [Mother]. The child was with him from 8:30
a.m. to 1:15 p.m. He failed to seek any medical attention for this child knowing
the child was having problems breathing.” The dispositions regarding the
allegations of neglectful supervision, ranked “serious,” were also reason to
believe for both Q and Q2 because police found a loaded handgun underneath
the bed Father shared with Mother as well as drug paraphernalia.
Dickinson admitted that he had never interviewed Father or Mother
regarding the dispositions and that he had spoken only with a police detective
and other CPS workers who had spoken to Mother. Dickinson also admitted that
he did not know who owned the gun.
Father denied any knowledge of the gun that was found under the bed he
shared with Mother. He also testified that he had not been offered immunity to
testify against Mother in any proceedings.
T.J., Mother’s maternal uncle, testified that Mother, “people who were
there at the apartments,” and “Keisha Brown, the one that [first] called the
police[,]” told him that Father had killed Q. T.J. testified that he still believed that
Father had something to do with Q’s death and “was involved”: “[W]hether
[Father] murdered Q or not, he sat there and let Q stay on the floor for five hours
and did not call medical care for him.” T.J. also still believed that there was a
possibility that Father had murdered Q and that he would testify against Mother
6
in a criminal trial. T.J. conceded that Mother “played a part in” Q’s death but
stated that he did not know whether she was responsible for the physical injuries
because he had no details of the injuries, despite his awareness that she had
accepted responsibility for the injuries.
After Q’s death, his little brother, Q2, was removed and placed in foster
care. Soon thereafter CPS conducted a family conference (that did not involve
Father or his family because they are not Q2’s relatives), and Q2 was placed with
the Js in East Texas.
Mother delivered Son in February 2013 while confined in jail. Kimberly
Russell, an investigator for TDFPS, testified that a referral was received
regarding Son on February 19, 2013, regarding neglectful supervision of the
newborn based on Mother’s incarceration for Q’s death. Mother acknowledged
to Russell that she was in jail for fatally injuring Q.
Russell discussed with Mother the need to place Son with “some possible
relatives.” Mother identified Father as Son’s father, but TDFPS had concerns
because of Father’s CPS history regarding Q’s death. Russell therefore made
another disposition against him of reason to believe for neglectful supervision
regarding Son. TDFPS assessed a risk of harm for Son in his parents’ care
solely because of what happened to Q. Son was removed from Father and
Mother and placed in foster care.
Russell admitted that she knew at the time of Son’s ex parte removal that
“there were relatives in place” who would take Son, but she did not investigate
7
those relatives instead of removing the child and placing him in the foster care
system because of the history with Q. Russell also testified that not asking the
parents about voluntary placement with other family members is normal “[i]n
cases like this.”
Russell knew that Q2 had been placed with the Js and could have placed
Son directly with the Js as a voluntary placement instead of placing the baby in
foster care first. She testified that she did not know why she had not done so.
Russell testified that Father’s living with his mother (Grandma) at the time Son
needed a placement weighed against placing the child locally with Grandma.
Russell also did not investigate Father’s two aunts, who live locally, before the ex
parte removal.
Dwight Lack, special investigator for TDFPS, testified that he interviewed
Father on February 20, 2013, two days after Son’s birth. Lack discussed
Father’s criminal history, including aggravated robbery, with him as well as
Father’s relationship with Mother. Lack testified that Father reported that he and
Mother had been in a relationship for two to three years and volunteered that he
planned to continue the relationship.
But Father testified that he and Mother were not in a relationship when
Son was born. He said that he continued the relationship after she went to jail
and before Son was born because she was his son’s mother, “and that was it.”
Father testified that he did not learn about the pregnancy until after she was
already in jail.
8
T.J. testified that
the last time [they] were in court, [Mother] wrote [him] a two-page
letter saying that she wanted [him] to stop and give in to the case
and let [Son] be with his father, because whether she got 10, 20, or
30 years, they were going to be together when she got out.
Father testified that he had planned to raise Son before TDFPS took him
from the hospital instead. Father had bought “everything” and had planned to
live with Son and Grandma in her house. Grandma would play a supportive role.
But Father testified that he understood why CPS opened a case regarding Son
and understood their concerns. He stated, “It’s all about the child safety. That’s
the most important thing.”
Two months after the removal, TDFPS placed Son with the Js, who were
raising his half-brother Q2.
Mother pled guilty to injury to a child in November 2013, when Son was
about nine months old, and her sentencing was pending when this trial in family
court occurred.
Evidence of Father’s Responsibility and Remorse for Q’s Death
Father claimed at one point that he had never hit Q but later admitted that
he had “popped” him on one occasion. Father also testified that he had seen Q
about ten times before his death but had never talked to him. Father had also
previously been left alone with the children for half-days. He testified that he had
heard Mother spank Q maybe two or three times before the day Q died. But
Father claimed that he did not realize that Mother had been beating Q when he
9
had potty training accidents and that “[e]verybody knew Q had a problem but
[Father.] [Father] didn’t know any of that.” Father denied seeing vomit on Q’s
pallet or anywhere else in the house but admitted that he had seen feces on the
barstool on the morning of Q’s death and on the carpet previously.
Father testified that he had had no idea that anything was wrong with Q
when he saw him on the day of his death:
If I—I mean, knowing what I know now, you know, that’s—I
can always say I would have did something differently. But right
then, at that moment, I didn’t know it was that severe. I didn’t know
Q was in danger. I didn’t know he needed my help. I didn’t know
any of that.
He also testified that he accepted some responsibility for Q’s death:
I should have—I mean, back then, where my life was and where it’s
at now—back then I was—I wasn’t focused on Q . . . —and I kind of
missed that because I was more in tuned to what I was getting from
his mother, and I wasn’t, you know—wasn’t really worried about him,
and I should have been. I should have been—as a man, I should
have been knowing what’s going on in the household at all times,
and I wasn’t that. I wasn’t there in my life.
But a few minutes later, he disagreed that his inactions contributed to Q’s death:
A. I disagree.
Q. Okay. In what way?
A. All ways. I had—
Q. Okay. Could you explain please?
A. —no control over that. I can’t—like, I can’t control what
somebody else would do. I can only control me. That’s the
best I can tell you. I don’t even understand why you would
even ask me something like that. I didn’t understand the
question at all.
10
Q. Okay. Well, let me ask a question you understand. Do you
agree—or what is your opinion on whether your failure to help
Q that day contributed to his death? I just want your opinion.
A. I don’t think so because for the simple fact, I didn’t know
anything until after everything was done. So I couldn’t have
stopped her or anything. That’s just her—this is her child. I
had no idea on, you know, that I would have to—I don’t know.
I just don’t know. I don’t think so. I disagree with what you
said, though.
Later, on direct examination, he testified that he regretted what happened
to Q. He said that if he had it to do over again, he would have called the police
before anybody else. He testified that he would also know more about what was
going on in the house than he did with Q. “That’s most important to me. That’s
what I got out of all this: You know, hopping in and out of relationships and not
knowing—I would be more focused on the house and what’s going on around
me.”
Tanae Todd, CPS conservatorship worker, testified that she was also the
caseworker on Q and Q2’s case, which was still pending when Son was born.
When she received Son’s case, she “was concerned about what [Father’s] role
was in the death of Q and his plans to continue a relationship with [M]other.”
Todd testified that when they spoke in July 2013, which was around six
months before the trial began, Father told her that he “wasn’t really watching Q
on that day [Q died,] . . . he didn’t really feel like he had a responsibility to
because they weren’t his children,” and he and Mother were not “in a
relationship.” It was more of a casual, sexual pairing. Despite some of his
11
testimony indicating otherwise, Todd still believed that Father believed that he did
nothing wrong that contributed to Q’s death.
On the other hand, Father testified that he had told Todd “countless times”
what he had “done wrong that day” and also testified that he did not believe that
he could say or do anything to convince her because her mind was made up that
the Js should have custody of Son before Father’s service plan was even
created.
Grandma testified that Father told her that “he wished he would have
called for help versus call[ing] the mom first.” Grandma admitted that she had
“told him [her]self that [she] would have called 911 first, but [she’s] had dealings
with babies and stuff.” She also testified that she heard that CPS “said that he
wasn’t remorseful, and that’s not what [she has] seen.” Grandma admitted that
she understood the Js’ concern that Q had died on Father’s watch.
Father’s Service Plan
Father’s service plan requirements included visiting with Son, having and
maintaining a job, having a safe household, and completing parenting classes,
counseling, and anger management. Father believed that he was ordered to
complete services because of the circumstances surrounding Q’s death and his
own background. He admitted that he did not understand why anger
management was required but completed it and the rest of his plan successfully.
Todd testified that CPS wanted Father to take anger management classes
because of the aggravated robbery, “and just the way that the [July 2013]
12
conversation was going between [them] at that time kind of showed that there
may have been a reason for him to have anger management as well.” Father
yelled but finally calmed down.
Todd admitted that one reason that Father was upset was that he had a
hard time reaching her, and she also admitted that she had met with him only
twice outside of hearings. Grandma and Father both testified that they had
trouble reaching Todd during the case. Grandma testified that she left many
messages, but Todd never responded unless “she wanted a question answered.”
Eventually, Grandma gave up trying to contact her.
But Todd testified that Father was not just upset at not being able to reach
her; he was upset about many tasks in the service plan, including the anger
management requirement. She further testified that she had had trouble
reaching Father by phone and that she “had called him for all of June and most
of July.” Todd explained to Father in their July 2013 conversation that TDFPS’s
biggest concern was that he hadn’t accepted responsibility for his
role in Q’s death, that whether or not he’s the one that actually
caused the injuries, that him not [sic] seeking medical attention could
have probably saved Q’s life, and that[] [TDFPS’s] biggest hurdle is
getting him to understand that, and that he could address that in
counseling to help him get to a place where he could understand
that . . . .
Father testified that he performed whatever TDFPS asked of him because
he wants to raise his son and will “do whatever.” He also testified that he felt like
he had done whatever he needed to do.
13
Father worked Monday through Friday at an auto parts store and at trial,
had been working there almost a year and a half. He had his own apartment and
car (but no valid driver’s license), and he had been looking into daycares.
Father stated that he learned in counseling that adults
are the voice for children. You know, sometimes children can’t tell
you when they being hurt or when they being neglected or
mistreated. As an adult, you know, it’s our jobs to watch out for
them and protect them. And, you know, sometimes you got to be
the whistleblower, you know. If you seeing something going on that
ain’t supposed to be, you got to step up as an adult and, you know,
put a stop to it, no matter if it’s your child or not.
Father also discussed what he had learned in parenting classes:
I know, like, when a child is developing properly. I know the
importance of socializing the child and having them around all your
family and stuff like that, you know. And I learned that the way that I
[was] raised up, like when the women—I mean, the teacher . . . was
telling us, you know, the way we was raised necessarily ain’t the way
children need to be raised today, that children are different. Children
—they need more explanation, instead of just telling them what to
do, like we was taught, you know.
She taught us to be more interactive with our kids and take
more responsibility and more charge over their life and have them
doing something constructive and consistent on a consistent basis.
Kids need structure and consistencies in their life.
Father testified that he had never injured Son. He also testified that he
had not used illegal drugs and had had no arrests, charges, or convictions since
he had found out that Mother was pregnant with Son.
Todd had concerns about whether Father took advantage of all his
visitation time with Son. T.J. testified that he had given Father more time with
Son than TDFPS required. T.J. also stated that the visitation agreement with
14
Father was that T.J. would bring Son to Father’s family whenever he was
preaching in Dallas and would meet Grandma in Canton on alternate months for
her to pick Son up and drop him off, but Father would visit Son in T.J.’s East
Texas home in the remaining months. Father never went to East Texas to visit
Son. Father also never accompanied Grandma to pick the child up in Canton.
T.J. had seen Father only three or four times, and that was in court or at a
TDFPS–run family conference.
Father explained that he never went with Grandma to pick up Son because
Father worked on Saturdays. Father testified, however, that he paid for
Grandma’s gas when she picked up and dropped off the child. But Father
admitted that he had never called the Js’ home and had never written a letter to
Son for the Js to read to Son. Father stated that he had not tried to arrange visits
because “it was set up for [Grandma] and [his] aunt to, you know, mediate that
part of the visitation . . . .”
Grandma testified that the visits ended up being only once a month instead
of twice monthly because “that’s the only time [the Js] would make arrangements
with” her; “[t]hey were busy, they were going out of town[,] or they had a funeral
or something[.]”
Even though Father completed his service plan, Todd believed that CPS’s
goals for individual counseling were not met because of his “issues
understanding [TDFPS’s] concerns and what he was supposed to have learned
from the counseling services about accepting responsibility completely, you
15
know, making better choices.” She also had concerns about whether he was
honest with his counselor because, according to Todd, the time frame Father
gave his counselor of Q’s last day did not match the time frame he had given
TDFPS. Despite any benefits that Father had gained from completing his
services, Todd did not believe at trial that he “would be able to safely parent on
his own.”
Son’s Present and Future
T.J., who had also been Mother’s primary caregiver, testified that he lives
about two and a half hours from Fort Worth and that Son had been in his home
about eight months. Upon learning of Mother’s pregnancy with Son, T.J. had
contacted CPS to ask about adopting him. At trial, the Js were in the process of
adopting Q2. Mother’s other two children live in East Texas as well, so Son sees
them “every week or two.”
T.J. testified that Son is doing well, “really kind of above target.” He and
Q2 attend a child development center from 8 a.m. to 5 p.m., Monday through
Friday. Todd, in response to Son’s attorney ad litem’s questioning, testified that
she had not visited the daycare but had no concerns about it. She said that it
“has a learning program for small children” that she had heard was “really good.”
L.J. works while the children are in daycare. T.J. is a pastor at two
churches, but he takes the children to their medical appointments and runs the
family’s errands. T.J. testified that he can meet Son’s needs. He draws disability
16
and a pastor’s salary, and L.J. has a salary. Each child has his own bedroom
and TV. The house has a big yard.
T.J., who was fifty-one years old at trial, is an insulin-diabetic and has no
feeling in one of his hands or one of his feet. He testified that the lack of
sensation does not affect his everyday life, but he admitted that he cannot “hold
onto real well” with the injured extremities and that he has trained himself to do
things with his left hand that he used to do with his right hand. T.J. also testified
that his health problems do not make caring for Son more difficult and that L.J. is
in good health.
T.J. testified that he wants to be Son’s permanent managing conservator
(PMC) because he thinks that is best for Son. He and his wife love Son, they are
the only parents that he has known, they have a nurturing home, and they want
to provide him a good education and a religious upbringing. T.J. stated, “I think
it’s better if he’s a little more sheltered and guided and nurtured.” T.J. also
planned to continue the relationship among the four siblings as well as with the
baby’s paternal family. But he believed that Son needed to remain with L.J., Q2,
and him.
T.J. had no idea whether Father would physically harm Son:
I don’t know anything about [Father]. I don’t know how he acts
when he gets mad. I don’t know. I don’t know how he acts when he
gets rattled. That’s for somebody else to decide. I don’t know.
....
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Q. . . . You don’t know how he would react if he was angry. What
do you fear he might do?
A. Maybe an out-of-control situation. I honestly don’t know, but I
understand that things have went on in the past, and no one
knows. No one knows.
T.J. admitted that he had once been charged for committing assault family
violence against Mother’s mother, a transient drug addict. She refused to leave
their mother’s home, so he “pulled her off the porch and out of the yard.” The
charge was dropped.
T.J. said that it would be fine if the trial court awarded visitation to Father
and that he would “do whatever it takes” to comply. But he also thought that
weekends once or twice a month and a month in the summer would be enough
visitation and would prefer that the visits be supervised.
T.J. had nothing but good things to say about Grandma, with whom Son
stayed for his supervised visits with Father.
T.J. did not believe that his low opinion of Father or Father’s potential
testimony against Mother in a criminal case regarding Q’s death would negatively
impact any co-parenting with Father. T.J. testified that he would not have to be a
part of the relationship, just drop off and pick up Son.
Todd had no concerns about the Js’ ability to satisfy Son’s needs now and
in the future. She believed that the couple has done a good job of taking care of
his medical needs as well as ensuring his connection with siblings and his
paternal relatives by traveling back and forth. Todd also testified that parents
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who do not talk to each other can nevertheless make sure that the children have
relationships with both parents. She further testified that she had no concerns
about T.J. bad-mouthing Father to the child and that she did not think she had
any concerns about Father bad-mouthing T.J. to the child. She requested that
the trial court name the Js as PMCs of the child because she did not think that
Father was “ready to parent by himself” and believed that leaving the child with
the Js would be the “the best and the safest option for him.” Todd believed
naming the Js as PMCs would be in the child’s best interest.
But Todd also recommended that Father have visitation with the child,
although the terms of those visits varied throughout her testimony. She originally
testified that he should get possession for one or two weekends a month and
extended time in the summer. She was against standard visitation initially
because Father did not have a valid driver’s license, unless someone else would
be designated to transport the child. She also believed that Father could have
short, two-hour visits with no supervision but was not so sure about unsupervised
weekends. But on cross-examination, she testified that she would be okay with a
standard possession order if Father’s driver’s license issue was taken care of.
Upon questioning by Mother’s lawyer, Todd changed her mind again and stated
that Father should only have unsupervised visits that lasted two hours but that
days and overnights should be supervised. When Son’s attorney ad litem
questioned her still later, she testified that Father currently did not have
unsupervised contact and that she and TDFPS both believed that he was not
19
prepared to have unsupervised contact at that point. She clarified that Father’s
extended summer possession could include “maybe four or five hours at a time”
of unsupervised possession but that “overnights and things like that should still
be” with Grandma. For Todd to feel comfortable with Father having increased
unsupervised time, he would need to
[b]e able to have a better understanding. [Todd did not] know
what that would look like, but just in conversations on the surface, he
says the right things, but when you start asking him more questions,
[she does not] think he gets it still, and if [she and Father] . . . can
get to that point where he truly understands and can truly articulate,
whichever way the question is posed, that he understands that
something should have been done differently or that he could make
better choices, [TDFPS] would be at a different choice.
Todd admitted that nothing Father could do “[i]n the immediate future”
would make her comfortable with him getting unsupervised time but testified that
“further down the line,” he “would be able to show that he could have [it].”
Todd conceded that Father had made some progress in how he interacted
with Son and that Father
came to a better understanding of some of the choices he made in
the past as far as relationships with women and using women, but
addressing the specific concern about his role in the death of [Q, she
did not] think that he really made as much progress as [she] would
have liked to have seen.
Similarly, she “still would question his judgment[] because he still doesn’t think
that he could have done anything differently that day that Q passed away, and
that would make [her] question his ability to make good judgments in the future.”
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She pointed to his having a suspended driver’s license as evidence of poor
judgment.
Father admitted that he drives himself to work without a valid license. He
testified that to regain his driver’s license, he would need to pay three insurance
tickets and surcharges, about $2,500–$3,500 total. He had known about his
suspended license at least since the beginning of the SAPCR.
Todd also worried that Father’s plan was to continue his relationship with
Mother. Todd remained concerned at trial that Father does not understand how
to be protective or what to do to be protective of a child.
Todd further testified that the appointment of either parent would
significantly impair the child’s physical health or emotional development. On
cross-examination, however, she agreed that placing Son with Father would not
significantly impair the child’s physical health. She conceded that only Son’s
emotional health and development would be affected. When questioned by
Mother’s lawyer, Todd testified that what Father has done to demonstrate a
threat to the child’s safety is:
I think he’s showing a pattern of being passive or nonchalant
and not really understanding simple things. Some of it was common
sense to most people about how to protect a child. I think that that is
a threat to the safety of this child. I don’t—and he’s demonstrated
that by even just accepting partial responsibility, and then when he
was on the stand, he was asked if he thought he could have done
anything differently, and he said no.
Additionally, Todd testified that Father has not appeared that interested in
Son when she has seen them interact. Nevertheless, Todd stated that she
21
believes Father loves Son and wants to care for him “somewhat.” She further
believed, however, that Grandma would be the primary caretaker if Father got
primary custody, not Father. The trial court judicially noticed that if TDFPS had
completed a home study of Grandma and placed the child with her in the
beginning, then Father would not be asking for a placement change at trial. Todd
had concerns “that he’s not really committed to parenting by himself” and that
“taking [the child] from a safe and stable environment where he’s placed with
siblings and he’s close to his other siblings, to place him with [Father] who would
end up having him live with someone other than a parent” “would be more
damaging than to leave him where he is and to have [Father] have visitation and
access to him.”
Todd averred that placing the child with Father would essentially be
moving the child from one nonparent placement to another, due to her concerns
that Grandma would really be the caretaker, not Father. When questioned by
Son’s attorney ad litem, Todd emphasized that Grandma was “the one that was
kind of driving [Father] and not really him on his own” when it came to the case
and interacting with the child. Similarly, T.J. testified that he had noticed that
Grandma, not Father, gave Son the most attention when they all appeared at
various court proceedings.
Father testified that he loves Son and intends to raise him himself, not
Grandma or his brother or his aunt. Father testified that he and Son bond on
their visits:
22
We play all day. I put him to sleep. He wakes up on my
chest. You know, just little stuff like that. It’s been something new. I
have never—it’s a whole different feeling for me because I’ve never
been responsible for anybody or anything else, and just to see my
son like that . . . .
Father further testified that when Son is with him, Father takes care of the baby,
including diaper changes. Grandma also stated that during visits, Father
changes the baby, they make videos, and Father spends all the time he can with
him. She denied that Father was passive or nonchalant with Son.
The evidence of Father’s financial support of Son conflicts. T.J. at first
denied that Grandma had given him things from Father for the baby. He later
conceded that she brought a pack of diapers “[l]ike every other month” and had
given him $50 in August, but he did not know if the diapers were from Father or
not. He denied receiving any toys or clothes for the baby, even after Christmas.
Grandma, however, testified that she took a “big bag of Pampers” every visit and
gave L.J. money every visit except the single time she gave the money to T.J.
Grandma also testified that she took clothes and food each time. She
additionally testified that she bought Son a toy and outfits for Christmas and that
the Js took those gifts home with them. Finally, she said that she and Father
provided the funding for all these things. Father likewise testified that he had
bought diapers and had sent diapers and money with Grandma to give the Js for
Son’s care.
But T.J. was puzzled that Grandma had suggested that the weekends she
got paid would be better for her to host Son’s visits to the metroplex.
23
If Father were awarded custody, he planned to continue working days,
Monday through Friday, while Son would go to daycare, and Grandma would
drop him off and pick him up. In the long term, Father wanted his son to go to
college, “be a good, strong man,” and have a better future than Father had.
Father stated that Grandma would help him in any way necessary with his
son, including picking him up from daycare if necessary or feeding him if Father
was stuck in traffic. He admitted that he would need his mother for transporting
Son.
Grandma agreed that she would play a supporting role, helping Father do
whatever he needed to take care of his son, such as providing transportation or
taking the child to doctors’ appointments. Grandma had raised four sons, she’s a
mobile operations manager at Carter BloodCare, where she has worked for
nineteen years, and she is a pastor. She married her current husband about
twenty-five years before trial, when her youngest son was three. She and Father
live six to ten minutes apart, depending on the weather. She testified that since
the case started, Father had grown up a lot and had “been jumping through
hoops for somebody other than himself.” Grandma testified that Father “wants to
be a father to his son and raise him, and [she] wanted to see him do that. If
[Father] wasn’t going to be the baby’s father and be there in his life, [she] would
be visiting with the [Js], because [she’s] not trying to raise another baby.”
Grandma had no concerns about Father’s ability to parent his son.
24
Father testified that he has an excellent support structure in Pleasant
Grove—Grandma, his brothers, aunts, and uncles and his own grandmother.
Grandma and two of Father’s brothers knew the baby, and Father’s two aunts
visited him. Father stated that the family routinely got together at Grandma’s
house every Sunday.
Father admitted that it is important for Son to have a relationship with Q2.
He also testified that he “value[s] the relationship that” the child has with the Js
and would maintain it.
But Father testified that the Js had never spoken to him personally and
that there was hostility between them and him. He claimed,
I don’t have any problems with them. I don’t even understand
why they upset with me. I don’t even know. I don’t know where all
this hostility is coming from. I don’t know why they feel the way they
feel about me. I don’t have any hard feelings towards them.
Father testified that T.J. has “had an attitude with” Father “[f]rom day one.”
But Father also testified that he appreciates T.J.: “It takes a special kind of
person to take a kid up into [his] house and raise [him] like [he is his] own. I
appreciate him for it greatly.” Father further testified that despite the relationship
between T.J. and him, Father is “open and willing to [do] whatever and [is] going
to do whatever, regardless of how [T.J.] feels about it[,]” to improve the
relationship because he realizes that that relationship will affect Son.
Grandma admitted that the communication issue between Father and T.J.
was both men’s faults.
25
Father’s Issue
Father contends that the evidence was legally and factually insufficient to
overcome the parental presumption and to name the Js as JMCs with the
exclusive right to determine Son’s primary residence and that the trial court
therefore abused its discretion by placing Son with the Js. When determining the
issues of conservatorship, possession, and access to a child, a trial court shall
put the child’s best interest first. 3 But the parties vying for the rights of
conservatorship, possession, and access are not always treated equally.
Rebuttable Presumptions
Section 153.131 of the family code provides,
(a) Subject to the prohibition in Section 153.004, unless 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 development, a parent shall be appointed sole
managing conservator or both parents shall be appointed as joint
managing conservators of the child.
(b) It is a rebuttable presumption that the appointment of
the parents of a child as joint managing conservators is in the
best interest of the child. A finding of a history of family violence
involving the parents of a child removes the presumption under this
subsection. 4
Section 153.004(b) provides,
3
Tex. Fam. Code Ann. § 153.002 (West 2014); Danet v. Bhan, 436 S.W.3d
793, 796 (Tex. 2014).
4
Tex. Fam. Code Ann. §153.131(a)–(b) (West 2014) (emphasis added).
26
(b) The court may not appoint joint managing conservators if
credible evidence is presented of a history or pattern of past or
present child neglect . . . . It is a rebuttable presumption that the
appointment of a parent as the sole managing conservator of a
child or as the conservator who has the exclusive right to
determine the primary residence of a child is not in the best
interest of the child if credible evidence is presented of a
history or pattern of past or present child neglect . . . . 5
“[T]he acts or omissions listed in chapter 261 [of the family code] might be
used to inform the terms’ use in other chapters. Under chapter 261, neglect may
include in part the failure to seek, obtain, or follow through with medical care for a
child.” 6 “[N]eglect [also] includes . . . failing to remove a child from a situation
that requires actions or judgment beyond his capabilities and that results in a
substantial risk of immediate harm to the child.” 7
The evidence proffered by TDFPS was evidence of Father’s neglect of Q.
Father’s evidence that he had no idea of the ongoing abuse Q was suffering or
that Q was in distress the day of his death until it was too late is some evidence
that he was not neglectful. Thus, both sides put on evidence regarding the two
presumptions. As this court has previously explained,
A rebuttable presumption shifts the burden of producing evidence to
the party against whom it operates. Once the burden is discharged
5
Id. § 153.004(b) (emphasis added).
6
In re S.M.R., 434 S.W.3d 576, 583 (Tex. 2014) (citations and internal
quotation marks omitted).
7
In re E.C.R., 402 S.W.3d 239, 246 (Tex. 2013) (citations and internal
quotation marks omitted).
27
and evidence contradicting the presumption has been offered, the
presumption is extinguished and shall not be weighed or treated as
evidence. Furthermore, the presumption has no effect on the
burden of persuasion. 8
When the parental presumption is negated and therefore has no effect, the
original rule again governs the case, and “[a]ll that must be shown by a
preponderance of the evidence is that the appointment of the non-parents as
[JMCs] would be in the best interest of the child.” 9
The judgment contains the following findings,
The Court finds that the appointment of . . . [Father] as sole
managing conservator of the child, or the appointment of . . . Mother
. . . and [Father] as joint managing conservators of the child is not in
the best interest of the Child because the appointment would
significantly impair the child’s physical health or emotional
development.
The Court finds that the appointment of . . . [Father] as sole
managing conservator of the child, or the appointment of . . . [Father]
as the conservator who has the exclusive right to determine the
primary residence of the child is not in the best interest of the
child because credible evidence was presented of a history or
pattern of past or present child neglect or physical abuse by . . .
[Father] directed against a child. [Emphasis added.]
8
All Am. Builders, Inc. v. All Am. Siding of Dallas, Inc., 991 S.W.2d 484,
489 (Tex. App.—Fort Worth 1999, no pet.) (citations omitted).
9
In re Marriage of Preston, No. 10-08-00066-CV, 2008 WL 5396967, at *1
(Tex. App.—Waco Nov. 19, 2008, no pet.) (mem. op.); see In re W.A.R., No. 10-
06-00165-CV, 2006 WL 3759189, at *4 (Tex. App.—Waco Dec. 20, 2006, no
pet.) (mem. op.); In re W.H.M., No. 01-00-01396-CV, 2003 WL 22254713, at *7
n.3 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.).
28
The trial court therefore made the required statutory findings to overcome the
parental presumption and to support the rebuttable presumption that it was not in
the child’s best interest to live with Father. 10
TDFPS argues that Father presents nothing for review because he neither
challenges the finding under section 153.004(b) nor contends that he should
prevail absent the parental presumption of section 153.131. It is true that Father
does not mention section 153.004(b) in his brief. But because Father challenges
TDFPS’s neglect evidence—evidence that both erases the parental presumption
and gives rise to the section 153.004(b) presumption against his being named
the conservator with the exclusive right to determine the child’s primary
residence, and because he also offered some evidence contrary to that
rebuttable presumption against him, therefore erasing that presumption, we shall
reach the ultimate question in this case. That is, because each party offered
evidence against the presumption favoring the other party, both presumptions
disappear, and we review this case with all the parties on an equal footing. 11
Burden of Proof and Standard of Review
As we have previously explained,
The burden of proof in conservatorship cases, as opposed to
termination cases, is a preponderance of the evidence. The
standard of review in conservatorship cases is abuse of discretion.
10
See Tex. Fam. Code Ann. §§ 153.004(b), .131(a)–(b).
11
See Preston, 2008 WL 5396967, at *1.
29
The trial court has wide latitude in determining the best interests of a
minor child. We will reverse the judgment of the trial court only when
it appears from the record as a whole that the court has abused its
discretion. A trial court abuses its discretion if it acts arbitrarily and
unreasonably or without reference to guiding principles. An abuse of
discretion does not occur as to factual matters as long as some
evidence of a substantive and probative character exists to support
the trial court’s decision. Legal and factual sufficiency are not
independent grounds for review in conservatorship cases, but they
are relevant factors in deciding whether an abuse of discretion
occurred. 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 engage in a two-pronged
inquiry: (1) Did the trial court have enough information upon which
to exercise its discretion; and (2) did the trial court err in applying its
discretion? 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.
The trial court did not file any separate findings of fact and
conclusions of law supporting its ultimate conservatorship finding in
the decree. When no findings of fact or conclusions of law are filed
in a bench trial, the trial court’s judgment implies all findings of fact
necessary to support it, but these implied findings are not
conclusive. An appellant may challenge them by raising both legal
and factual sufficiency of the evidence points. 12
Best Interest Analysis
Courts may use a nonexhaustive list of factors to determine the child’s best
interest. 13 Those factors include
(A) the desires of the child;
12
In re W.M., 172 S.W.3d 718, 724–25 (Tex. App.—Fort Worth 2005, no
pet.) (citations omitted).
13
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re T.D.C., 91
S.W.3d 865, 873 (Tex. App.—Fort Worth 2002, pet. denied).
30
(B) the emotional and physical needs of the child now and in the
future;
(C) the emotional and physical danger to the child now and in the
future;
(D) the parental abilities of the individuals seeking custody;
(E) the programs available to assist these individuals to promote
the best interest of the child;
(F) the plans for the child by these individuals or by the agency
seeking custody;
(G) the stability of the home or proposed placement;
(H) the acts or omissions of the parent which may indicate that the
existing parent-child relationship is not a proper one; and
(I) any excuse for the acts or omissions of the parent. 14
Son was too young to express any desires about where he wanted to live.
The record shows that the Js were meeting all his present emotional and
physical needs and were prepared to meet them in the future. The evidence was
conflicting on Father’s contribution to Son’s financial needs, and there was no
evidence that he contributed anything to Son’s emotional needs when Son was
not physically with him in the metroplex, but there was evidence of the
opposite—Father did not write, did not call, and did not visit Son in his East
Texas home or accompany him on drop-offs or pick-ups.
No evidence of present or future danger with the Js was admitted, and no
physical danger regarding living with Father was discussed; Todd explicitly
14
Holley, 544 S.W.2d at 371–72.
31
testified that she was not worried that placement with Father would impair Son’s
physical health. But there was evidence that placement with Father would
impact Son’s emotional health. Placement with Father would have meant
removing Son from the home that he had spent most of his life in, taking him
from the parental figures that he had seen every day for most of his life, and
separating him from his siblings, one in the home and two nearby. While Father
testified that he would maintain those relationships if Son were placed with him,
Father’s never having gone to East Texas could have been a compelling fact to
the trial court. Additionally, while there was evidence that Father had matured
after Son’s birth, his decision not to timely take care of getting his driver’s license
renewed was some indication that he was not yet prepared to take care of
himself as well as a toddler. Further, the trial court could have had legitimate
concerns regarding Father’s involvement in or ability to have prevented Q’s
death, given the length of Father and Mother’s relationship, the fact that he had
“supervised” her children before, and the presence of older scars on Q. The trial
court could have properly inferred that Father knew what was going on and did
nothing to stop it or report it. Father’s on-again, off-again absolution of himself
for any responsibility is disturbing as well. Finally, the evidence, although
conflicting, that Father and Mother were still together could have also been
dangerous for Son in the future should the trial court have placed him with
Father.
32
The Js have more experience with parenting, but Father completed his
parenting classes and took care of Son when supervised at Grandma’s house.
Father had never cared for Son unsupervised. Both the Js and Father have
extended family support, and daycare is available to both. There was evidence
that the Js’ home is stable.
The trial court’s judgment did not give Father the sole custody that he
wanted, but it awarded more rights and, particularly, possession and access to
Father than TDFPS advocated. Considering all the evidence, we cannot
conclude that the trial court abused its discretion by naming the Js as additional
JMCs or by giving them the exclusive right to determine Son’s primary residence.
We overrule Father’s sole issue.
Conclusion
Having overruled Father’s sole issue, we affirm the trial court’s judgment.
PER CURIAM
PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.
DELIVERED: November 20, 2014
33