In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-19-00237-CV
___________________________
IN THE INTEREST OF A.C., A.C., A.C., AND A.C., CHILDREN
On Appeal from the 323rd District Court
Tarrant County, Texas
Trial Court No. 323-107768-18
Before Gabriel, Kerr, and Bassel, JJ.
Memorandum Opinion by Justice Bassel
MEMORANDUM OPINION
I. Introduction
This is a child-protection case in which Appellant Father appeals from the final
order in a suit affecting the parent–child relationship that appoints the Texas
Department of Family and Protective Services as managing conservator of A.C., A.C.,
A.C., and A.C. (collectively, the children); that appoints Foster Parents as possessory
conservators of the children; and that grants Father and Appellee Mother supervised
visitation with the children. In a single issue, Father argues that the trial court
reversibly erred by appointing Foster Parents as possessory conservators of the
children based on Mother’s pleading. Other than this argument, Father raises no
challenge that the trial court abused its discretion in the resolution of the
conservatorship issues. Because the record conclusively shows that Mother’s motion
to modify possessory conservatorship was not filed in the underlying trial court cause
number and was therefore not considered by the trial court, we affirm.
II. Background
The children were removed from Father in July 2018 after he placed them in
danger while driving intoxicated with them in the car, running a stop light, and hitting
another vehicle; the wreck caused serious injury to one of the children. The children
were placed in foster care and had been in Foster Parents’ care for ten or eleven
months at the time of the final hearing.
2
In April 2019, the Department filed a motion to modify possessory
conservatorship. In its motion, the Department requested that the trial court appoint
V.B., whose relationship to the children was listed as fictive kin and was described as
“family friend,” as the children’s temporary possessory conservator.
The November 2018 home study on V.B., who had never had a relationship
with the children, reflected that she felt that she might “not be the best candidate for
a permanent placement[] but [was] willing to help” with the children in order to give
Father “the opportunity to get back on track.” V.B. also reported that she had
criminal history: (1) an arrest in 1993 for theft greater than or equal to $20 but less
than $200, for which the case was dismissed; and (2) an arrest in 1993 for theft greater
than or equal to $20 but less than $200, for which she was placed on probation for
one year and was fined $200. The home study also revealed that V.B. takes
medication for diabetes and to regulate her blood pressure and that she has been on
disability since 2015 for a pinched nerve disorder in her back and neck.
At the outset of the final hearing, the parties stipulated to having the
Department named as the children’s permanent managing conservator without
terminating Father’s and Mother’s parental rights. The crux of the hearing was the
appointment of the children’s possessory conservator. The Department’s April 2019
motion to modify sought to have V.B. appointed as the children’s possessory
conservator, while Mother claimed to have a motion on file seeking to have Foster
Parents appointed as the children’s possessory conservators. Father argued that
3
Mother’s motion was an attempt to file an affirmative pleading for Foster Parents,
who had not intervened in the case.
Before the presentation of evidence, Mother’s counsel asked the trial court to
base its possessory conservatorship ruling solely on the State’s motion and to defer a
finding on Mother’s motion. At the conclusion of the final hearing, Mother’s attorney
alerted the trial court that Mother’s motion to modify possessory conservatorship was
not part of the trial court’s file because he had put the wrong cause number on the
motion. The trial court then set forth its ruling on the State’s motion as follows:
Regarding possessory conservatorship, based on a preponderance of the
evidence, the Court must deny the Department’s motion for placement
with [V.B.] The Court does not find by a preponderance of the evidence
that it is in the children’s best interest at this time for multiple reasons.
The Court ha[s] serious concerns about a lot of focus from dad’s
testimony and from [V.B.] herself about reuniting the children with
dad. . . .
Another concern the Court has was that the home study -- it
appears as though the Department is trying to fit a square peg in a round
hole. It’s extremely disappointing that this thing was so old and there
were so many problems, which weren’t even addressed until it seems
recently, as kind of a “let’s hurry up and get ready for final trial or a final
hearing,” and that is extremely concerning, because [V.B.] couldn’t
confirm how long she’d be a permanent placement. And so that
coupled with the idea that she was, you know, helping him -- I’m glad
she wanted to step up to help him get the kids back, but those two
combinations, her being unsure about the permanency of placement
with her and whether or not she could be -- how long she was willing to
be and being concerned with getting them back with dad is alarming.
She did appear to be very unfamiliar with the children’s dietary
needs. Even knowing that the final hearing was coming up, she wasn’t --
she couldn’t answer questions about their dietary needs to the point
4
where it satisfied the Court that it would be in their best interest to be
placed with her.
Although the Court did not consider her criminal history being an
issue because it is so old and she seems to be a very responsible mother,
caregiver at this point, the Court has concerns that when questioned
about her criminal history[,] she seemed to kind of minimize it, and that
was very alarming, as well. And she appeared angry and defensive, and
that was alarming to the Court.
The Court also has concerns of her physical ability. Just weighing
the different testimony about her being on disability and having a
pinched nerve and having one of these children that has some -- by
multiple [witnesses’] testimony that has some outbursts and has to be
physically restrained at times, that is a concern.
It’s also a concern that, again, the home study was done so long
ago, and the purported childproofing of the home seems to have just
happened recently. And a big concern, as well, is that she was not made
aware of the safety plan, which, to the Court’s understanding, has been
implemented for a long period of time.
....
At this time, given that [Mother’s] pleading is technically not on file as a
procedure, I mean, I don’t believe I can hear [Mother’s] motion to modify at this
point. However -- or motion for placement, I’m sorry, with the foster
parents, but given this is a final hearing and Court has discretion to make
orders in the best interest of the children, I am going to order that the
foster parents are possessory conservators, with mom and dad being
possessory conservators having supervised visits, supervised by the
Department. [Emphasis added.]
The trial court ultimately signed a “Final Order In Suit Affecting The Parent–
Child Relationship” reflecting the appointment of the Department as the children’s
permanent managing conservator, denying the Department’s motion to modify
possessory conservatorship, appointing Foster Parents as the children’s possessory
5
conservators, and allowing Father and Mother supervised visits with the children.
This appeal followed.
III. The Trial Court Did Not Abuse Its Discretion by Appointing Foster
Parents as Possessory Conservators
In his sole issue, Father argues that the trial court reversibly erred by appointing
Foster Parents as possessory conservators of the children based on Mother’s motion
to modify possessory conservatorship. Just as in the trial court, Father argues that
Mother, through her motion, represented the interests of Foster Parents, who had not
intervened and did not have standing to intervene because the children had not been
in their home for at least twelve months. See Tex. Fam. Code Ann. § 102.003(a)(12).
We review conservatorship determinations for an abuse of discretion. In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re S.T., 508 S.W.3d 482, 489 (Tex. App.—
Fort Worth 2015, no pet.). A trial court abuses its discretion if it acts arbitrarily and
unreasonably or without reference to guiding principles. Iliff v. Iliff, 339 S.W.3d 74, 78
(Tex. 2011); Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). Legal and factual
sufficiency are not independent grounds of error in modification cases, but they 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).
Moreover, a court’s primary consideration in determining the issue of conservatorship
must always be the best interest of the child. Tex. Fam. Code Ann. § 153.002; J.A.J.,
243 S.W.3d at 614.
6
Here, the record before us, just like the record before the trial court, does not
contain a motion filed by Mother advocating for the appointment of Foster Parents as
the children’s possessory conservators. The trial court, as it stated at the close of the
hearing, did not base its possessory conservatorship appointment on a motion filed by
Mother. We agree with Mother’s counsel’s assessment that Father cannot “retrofit
the unfavorable result to a pleading that was never filed or ruled on and which could
not and did not have any bearing on the result of the trial.” The trial court thus could
not and did not abuse its discretion by appointing Foster Parents as the children’s
possessory conservators based on Mother’s motion to modify conservatorship that
was not filed in the underlying case and which the trial court explicitly stated that it
was not hearing. Father does not challenge the trial court’s possessory
conservatorship appointment on any other ground. 1 We therefore overrule Father’s
sole issue.
1
Nor does the record reveal that the trial court abused its discretion generally
by appointing Foster Parents as the children’s possessory conservators. The record
reflects that the trial court considered the Department’s motion requesting that V.B.
be appointed as the children’s possessory conservator and denied that motion after
hearing evidence that demonstrated that it was not in the children’s best interest to be
placed with V.B. The trial court further concluded that it was in the children’s best
interest for Foster Parents, whom the children had lived with for ten or eleven
months and who had gone “above and beyond” in meeting the children’s needs, to be
appointed as the children’s possessory conservators. The trial court thus made the
best interest of the children its primary consideration and did not act arbitrarily and
unreasonably or without reference to guiding principles. See Tex. Fam. Code Ann.
§ 153.002; Iliff, 339 S.W.3d at 78; J.A.J., 243 S.W.3d at 614.
7
IV. Conclusion
Having overruled Father’s sole issue, we affirm the trial court’s order.
/s/ Dabney Bassel
Dabney Bassel
Justice
Delivered: September 19, 2019
8