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R. H. v. D. A.

Court of Appeals of Texas, Third District, Austin

March 2, 2017

R. H., Appellant
v.
D. A. and R. A., Appellees

         FROM THE DISTRICT COURT OF SCHLEICHER COUNTY, 51ST JUDICIAL DISTRICT NO. 3233, HONORABLE BARBARA L. WALTHER, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Field and Bourland

          MEMORANDUM OPINION

          Scott K. Field, Justice

         Appellant R.H. (Mother) appeals the trial court's order appointing nonparents D.A. and R.A. as joint managing conservators of her child, R.E.G. In one issue, Mother contends that the trial court abused its discretion because D.A. and R.A. did not offer sufficient evidence to overcome the statutory presumption that the court should appoint her as R.E.G.'s sole managing conservator. See Tex. Fam. Code § 153.131. We will reverse and remand.

         BACKGROUND

         In September 2014, R.E.G.'s father (Father) and Mother took one-month old R.E.G. to the emergency room in Eldorado, Texas. The parents reported to hospital staff that R.E.G. had fallen off the bed when Father was changing the infant's diaper. R.E.G. was unable to move his arm, and staff soon determined that R.E.G. had fractured his collar bone and right humerus. After the attending doctor concluded that the injuries were inconsistent with the parents' version of events, the Department of Family and Protective Services intervened.

         Soon after, the Department filed an original petition for protection of the child and, if necessary, for termination of the parental rights of R.E.G.'s Father and Mother. The Department also sought conservatorship of R.E.G., alleging that appointment of one or both of the parents as permanent managing conservator would not be in the best interest of the child because such appointment would significantly impair the child's physical health or emotional development. See Tex. Fam. Code § 263.404.

         R.E.G. was removed from the parents' home and voluntarily placed with Father's uncle and aunt, D.A. and R.A., who reside in Junction, Texas. In October, 2014, the trial court entered temporary orders appointing the Department temporary managing conservator of R.E.G and ordering the parents to comply with service plans set out by the Department. The next month, D.A. and R.A. intervened in the suit and sought permanent managing conservatorship of R.E.G. See Tex. Fam. Code § 102.004; In re N.L.G., 238 S.W.3d 828, 829 (Tex. App.-Fort Worth 2007, no pet.) (recognizing that foster parents with past substantial contact with child may intervene under section 102.004(b) in Department suit for termination).

         In October 2015, Father agreed to be appointed a possessory conservator of R.E.G., to have limited access and visitation, and to pay child support and medical support.[1] The trial court entered an order in accordance with the agreement of the parties and expressly found that appointment of Father as a managing conservator "would significantly impair the child's physical health or emotional development." In addition, the trial court's order stated that the order "in no way affect[ed] the conservatorship, visitation, child support, and medical support as to [Mother]."

         On March 22, 2016, the Department filed a motion for an order approving monitored return to Mother. See Tex. Fam. Code § 263.403 (monitored return of child to parent). According to the motion, the Department thought that a monitored return of R.E.G. to Mother was appropriate because Mother had "participated in and completed the services set out in the plan developed for her by the Department in order to achieve family reunification." Further, the Department stated that it believed that Mother would "be able to provide a safe and adequate home for the child, as long as she continues with the recommendations of the Department, and that continued separation of the child from the mother would not be in the best interest of the child."

         D.A. and R.A. filed a response to the Department's motion for monitored return, opposing the reunification of R.E.G. and Mother. In their response, D.A. and R.A. asserted that R.E.G.'s "separation from the Intervenors would cause emotional stress and would not be in the best interest of the child." Similarly, the court-appointed special advocate (CASA) filed a report with the court, disagreeing with the Department's goal of family reunification and instead recommending that the trial court order joint managing conservatorship of the child between D.A. and R.A. and Mother.[2]

          A final hearing before the trial court convened on April 6, 2016, and then reconvened on May 12, 2016. At the hearing, the Department recommended that the trial court order a monitored return of R.E.G. to Mother with continued involvement by the Department and other parties, including D.A. and R.A. The Department and Mother presented the testimony of several witnesses in support of the Department's recommendation, including testimony from two Department representatives, a CASA volunteer involved in the case, D.A., and Mother.[3] The testimony of these witnesses established, in part, the following undisputed facts:

• R.E.G. was born in August of 2014, when Mother was nineteen years old and shortly before Mother graduated from high school. Since the removal of R.E.G. by the Department, Mother has separated from R.E.G.'s Father and has come to believe that Father lied to her about how R.E.G.'s injuries were sustained.
• Mother was placed on a service plan by the Department. Mother has communicated regularly with the Department and complied with the requirements of the Department's service plan by (1) attending more than the required number of parenting classes; (2) completing individual counseling and psychological testing; (3) obtaining and maintaining a clean, appropriate home environment; and (4) providing for the basic needs of R.E.G., such as food, clothing, and diapers.
• Mother's service plan also required her to maintain a legal source of income. Mother was employed part-time at Stripes in Eldorado from March 2015 to May 2015 and then was then unemployed from May 2015 to December 2015. During this period of unemployment, Mother actively tried to find employment.
• After the case began, Mother moved to San Angelo for better job opportunities and eventually found employment at a restaurant. Mother began working at the restaurant in December 2015 and, at the time of the hearing, was still employed by the restaurant and working full time. Despite the period of unemployment, the Department was satisfied that Mother had complied with the service plan's income requirement.
• When the case began, Mother was living with family and was working to save up money for an apartment. Mother has resided in her own apartment since March 2015. At the time of the final hearing, Mother was sharing a two-bedroom apartment with a roommate in San Angelo. She also had obtained her driver's license, purchased a vehicle without a loan, and saved approximately two hundred dollars.
• Mother relies on her sister-in-law and on her roommate for childcare when she works. Both were approved by the Department as appropriate caregivers.
• Mother was initially allowed only supervised visits with R.E.G. During these visits with R.E.G., Mother would feed him, bathe him, change him, and play with him. The Department considered the Mother's care of R.E.G. during these visits to be appropriate and the relationship between Mother and R.E.G. to be "good." Mother was later allowed unsupervised visits with R.E.G., including overnight visits.
• In December 2015, CASA did not recommend a monitored return of R.E.G. because, at that time, Mother did not have full time employment and a stable home. However, based on her observations of Mother with R.E.G., the CASA volunteer involved in Mother's case currently is not ...

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