in the Interest of C.E.R., T.J.S., M.I.S., and J.L.L. Jr., Children

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION

No. 04-22-00374-CV

IN THE INTEREST OF C.E.R., T.J.S., M.I.S., and J.L.L. Jr., Children

From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2020PA00131
Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Luz Elena D. Chapa, Justice
Beth Watkins, Justice
Lori I. Valenzuela, Justice

Delivered and Filed: November 30, 2022

AFFIRMED

Appellant S.M. (Mother) appeals the trial court’s July 6, 2022 final order in a suit affecting

the parent-child relationship (SAPCR) that appoints her possessory conservator of her children

C.E.R. (born 2013), T.J.S. (born 2014), M.I.S. (born 2015), and J.L.L. Jr. (born 2017). 1 We affirm

the trial court’s order.

BACKGROUND

On January 21, 2020, the Texas Department of Family and Protective Services removed

the children from Mother’s and J.L.’s care on allegations that C.E.R. and T.J.S. had been hit by a

belt and injured, T.J.S. had been physically abused and neglectfully supervised, and M.I.S. had

1
To protect the privacy of the minor children, we use initials to refer to the children and their biological parents. TEX.
FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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been medically neglected. The Department obtained temporary managing conservatorship over all

four children, placed them in foster care, and filed a petition to terminate the parental rights of

Mother, C.R. (C.E.R.’s father), J.S. (T.J.S.’s and M.I.S.’s father), and J.L. (J.L.L. Jr.’s father).

During the investigation, the Department placed C.E.R., T.J.S., and M.I.S. with T.J.S. and M.I.S.’s

paternal aunt (Aunt) and placed J.L.L. Jr. with his paternal grandmother (Grandmother). The

Department also created a family service plan for all parents. Mother’s service plan required her

to, inter alia, complete a psychological evaluation, therapy, and a domestic violence class, and also

to demonstrate that she had stable housing and employment as a condition of reunification.

Nearly two years after removal, the trial court began a four-day bench trial at which Mother

appeared. The trial started on November 29, 2021, continued on February 25, 2022 and April 29,

2022, and ended June 15, 2022. By the time of the first trial setting, the Department no longer

sought termination of Mother’s parental rights—the Department sought reunification subject to

successful unsupervised visits. By the second setting, the Department considered reunification

“unworkable.” The trial court stated it had “all options for permanency and the best interest of the

children available to it.” When the trial commenced in earnest, the trial court heard testimony from

four witnesses: (1) the Department’s caseworker Sharetta Smith; (2) Aunt; (3) Grandmother; and

(4) Mother. At the conclusion of trial, the court signed an order appointing: Mother possessory

conservator of all four children; Aunt permanent managing conservator of C.E.R., T.J.S., and

M.I.S.; and Grandmother and J.L. joint managing conservators of J.L.L. Jr. The trial court also

appointed C.R. possessory conservator of C.E.R and J.S. possessory conservator of T.J.S. and

M.I.S.

Mother appeals in two issues. She argues that: (1) the evidence is factually insufficient to

support the trial court’s decision that appointing her as managing conservator would significantly

impair the children’s physical health or emotional development; and (2) the trial court erred in

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appointing a nonparent managing conservator to J.L.L. Jr. without an express finding that

appointing Mother a managing conservator of J.L.L. Jr., would significantly impair J.L.L. Jr.’s

physical health or emotional development.

ANALYSIS

Conservatorship of the Children

Applicable Law and Standard of Review

Under the Texas Family Code, “[i]f the court does not order termination of the parent-child

relationship, the court shall: (1) deny the petition; or (2) render any order in the best interest of the

child.” TEX. FAM. CODE ANN. § 161.205. “The best interest of the child shall always be the primary

consideration of the court in determining the issues of conservatorship and possession of and

access to the child.” TEX. FAM. CODE ANN. § 153.002. “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.” TEX. FAM. CODE ANN. § 153.131(b). However, that presumption is overcome if the trial

court finds by a preponderance of the evidence 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. TEX. FAM. CODE ANN. § 153.131(a); In re J.A.J.,

243 S.W.3d 611, 616 (Tex. 2007); see also TEX. FAM. CODE ANN. § 105.005.

“As conservatorship determinations are intensely fact driven, the trial court is in the best

position to observe the demeanor and personalities of the witnesses and can feel the forces, powers,

and influences that cannot be discerned by merely reading the record.” In re J.J.R.S., 627 S.W.3d

211, 218 (Tex. 2021) (internal quotation marks and citation omitted). “A trial court’s determination

of what is in the child’s best interest, specifically the establishment of terms and conditions of

conservatorship, is a discretionary function.” Id.

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“In family law cases, the abuse of discretion standard of review overlaps with traditional

standards of review.” In re L.C.L., 396 S.W.3d 712, 716 (Tex. App.—Dallas 2013, no pet.).

Sufficiency of the evidence is not an independent ground of error but is a factor relevant to an

appellate court’s assessment of whether the trial court abused its discretion. Id. “To determine

whether the trial court abused its discretion, an appellate court considers whether the trial court

had sufficient evidence on which to exercise its discretion and erred in its exercise of that

discretion.” Id. “As long as some evidence of a substantive and probative character exists to

support the trial court’s judgment, an appellate court will not substitute its judgment for that of the

trial court.” Id. In such a case, the trial court has not acted arbitrarily or unreasonably. In re J.J.R.S.,

627 S.W.3d at 218.

Application

Although this case started as a termination proceeding, the trial court did not order

termination. It therefore had the option to deny the petition or render an order in the best interest

of the children, and it chose the latter. TEX. FAM. CODE § 161.205; In re A.D., 480 S.W.3d 643,

645 (Tex. App.—San Antonio 2015, pet. denied); see also TEX. FAM. CODE § 153.002. It

recognized the presumption in favor of naming Mother managing conservator but found that

presumption overcome because naming Mother managing conservator would significantly impair

the children’s physical health or emotional development. TEX. FAM. CODE § 153.131(a). For

several reasons, we conclude the trial court did not abuse its discretion in making that factual

determination. In re J.J.R.S., 627 S.W.3d at 218.

First, the trial court had “sufficient evidence on which to exercise its discretion.” In re

L.C.L., 396 S.W.3d at 716. The Department presented evidence that Mother either injured T.J.S.

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by striking him with a belt or falsely took responsibility for striking T.J.S. with a belt. She was

placed on deferred adjudication for injuring T.J.S. At trial, Mother herself admitted injuring T.J.S.

It is undisputed that Mother completed all aspects of her family service plan. The

Department sought a monitored return of the children to Mother’s care in the fall of 2021, but

Mother refused the Department’s caseworker access to the home until February 2022, at which

time it was not ready for the children to live there. During a February 2022 visit, Mother’s home

reeked of dog urine and feces, did not have enough beds for the children, and the electricity did

not work in the portion of the home where the children’s bedrooms were located. Mother admitted

that although the Department had been working with her since 2020, she did not cooperate with

the Department on home visits because she did not have an appropriate home until May 2022.

Mother did not comply with the providing of a safe, stable environment until a few months before

trial.

After the home was ready, unsupervised visits—the key to reunification—had ended

because C.E.R. claimed Mother told him to say that he had been hit by Aunt in order to come

home. And, according to the caseworker, supervised visits did not occur “due to [Mother] having

issues with her phone . . . . And so, there was no way for us to even really, I guess, get started on

that monitored return for these children.” The Department had not seen enough “longevity of her

stability and maintaining her -- you know, her home life” to “send those kids home.” The

caseworker testified that the Department had not been able “to establish stability in [Mother’s]

efforts. So it’s kind of hard to say where she is as far as being able to care for four children.”

In contrast, Mother testified that she knew C.E.R. alleged she had told him to make up an

allegation against Aunt. Mother, however, argues that she never told C.E.R. to make up any

allegations, that her home was ready, and that she complied with the terms of her probation. She

argues that the reasons she had difficulty complying with the requirements of the monitored return

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were external—C.E.R.’s allegation that she had told him to lie; her own physical illness, which

required intermittent hospitalization; and her unreliable cell phone service—and beyond her

control.

The Department also presented evidence that the children had thrived in their current

placements. Aunt testified that C.E.R., T.J.S., and M.I.S. were doing “great” in her home, and that

they are happy and healthy. Aunt concluded that Mother loves her children, and her children love

her and belong with her, but Mother “needs time to get a little bit more stable ground where she’s

not so dependent on other people.” Grandmother testified that J.L.L. Jr. has lived with her since

the beginning of this case. She testified that J.L.L. Jr. is “perfect. He’s his own little man.” She has

enjoyed having him in her home and was willing to be appointed joint managing conservator

alongside J.L. if the trial court did not appoint J.L. sole managing conservator. Grandmother

testified that Mother’s three other children see her as their grandmother, and she would maintain

contact between them and J.L.L. Jr.

Second, the trial court, furnished with “sufficient evidence on which to exercise its

discretion,” did not err “in its exercise of that discretion.” Id. “The trial court does not abuse its

discretion if some evidence of a substantive and probative character supports its ruling, even if the

record contains conflicting evidence.” In re H.N.H., No. 04-18-00574-CV, 2019 WL 2996972, at

*1 (Tex. App.—San Antonio July 10, 2019, no pet.) (mem. op.). The evidence of Mother’s acts

and omissions, coupled with the testimony that the children were all doing well and were stable in

their current environments, constitutes some evidence of a substantive and probative character to

support the trial court’s finding that Mother’s appointment as managing conservator would

significantly impair the children’s physical health or emotional development. See Danet v. Bhan,

436 S.W.3d 793, 798 (Tex. 2014) (per curiam) (holding “evidence of misconduct in the more

distant past, evidence of more recent misconduct, and evidence of the stability of the child’s current

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placement” supports jury’s substantial impairment finding). In ruling, the trial court expressly

mentioned the emotional harm that could result from the children’s separation from those who

have cared for them, noting “there has been a non-parent conservator of these children for two

years, over two years” and in that time “they’ve attached, they’ve bonded, there’s feelings, they

are human beings. And that needs to be respected.” Instead of acting arbitrarily or unreasonably,

the trial court acted within its broad discretion in finding, by a preponderance of the evidence, that

appointing Mother managing conservator would significantly impair the children’s physical health

or emotional development. In re J.J.R.S., 627 S.W.3d at 218; In re H.N.H., 2019 WL 2996972, at

*1. We overrule Mother’s first issue.

Omitted Findings Regarding Conservatorship of J.L.L. Jr.

Applicable Law

If the trial court does not file findings of fact and conclusions of law, we must presume the

trial court made all findings necessary to support the judgment. See Worford v. Stamper, 801

S.W.2d 108, 109 (Tex. 1990) (per curiam); Roberts v. Roberts, 402 S.W.3d 833, 838 (Tex. App.—

San Antonio 2013, no pet.) (en banc). “If the evidence supports the trial court’s implied findings,

we must uphold the judgment on any theory of law applicable to the case.” Roberts, 402 S.W.3d

at 838 (internal quotation marks omitted).

Analysis

The trial court did not make an express finding that appointing Mother as managing

conservator of J.L.L. Jr. would significantly impair his physical health or emotional development.

But that finding is necessary to support the judgment, and we must therefore presume the trial

court made it. See TEX. FAM. CODE § 153.131(a); Worford, 801 S.W.2d at 109; Roberts, 402

S.W.3d at 838. And, as discussed above, the trial court’s finding that Mother’s appointment as

managing conservator would significantly impair the children’s physical health or emotional

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development was not an abuse of discretion. We therefore overrule Mother’s second issue.

Roberts, 402 S.W.3d at 838.

CONCLUSION

We affirm the trial court’s July 6, 2022 Final Order in Suit Affecting the Parent-Child

Relationship.

Beth Watkins, Justice

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