Court of Appeals of Texas, Second District, Fort Worth
IN THE INTEREST OF D.M., M.M., AND M.M., CHILDREN
THE 323RD DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
WALKER, MEIER, and GABRIEL, JJ.
MEMORANDUM OPINION 
accelerated appeal, Appellants primarily argue that the
evidence was insufficient to support the trial court's
order naming the Texas Department of Family and Protective
Services (DFPS) as their three children's sole managing
conservator and denying Appellants their request to be named
managing conservators. The family code requires a trial court
to consider a history of family violence in making a
managing-conservator decision. Because the trial court heard
a preponderance of credible evidence that Appellants had a
past history of family violence, the trial court did not
abuse its discretion by appointing DFPS the children's
sole managing conservator. Therefore, we affirm the trial
court's final order. See Tex. R. App. P.
A.M. (Father) and K.M. (Mother) appeal from the trial
court's final order in a suit affecting their
parent-child relationship (SAPCR) to three of their four
children, D.M. (David), Ma. M. (Mandy), and Me. M. (Michelle)
(collectively, the children). Father and Mother argue that
the evidence was legally and factually insufficient to
support the trial court's finding that their joint
managing conservatorship or a monitored return would
significantly impair the children's physical health or
emotional development and, thus, would not be in the
children's best interest. We review this determination
for an abuse of discretion. See In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie,
644 S.W.2d 449, 451 (Tex. 1982); In re T.D.C., 91
S.W.3d 865, 872 (Tex. App.-Fort Worth 2002, pet. denied) (op.
on reh'g). Our review of the trial court's discretion
includes a parsing of the sufficiency of the evidence to
support the conservatorship, possession, and access
determinations. See In re M.A.M., 346 S.W.3d 10,
13-14 (Tex. App.-Dallas 2011, pet. denied).
Factors to be Considered
child's best interest is a trial court's primary
concern in determining conservatorship, possession, and
access. See Tex. Fam. Code Ann. § 153.002 (West
2014). In making this best-interest determination, the trial
court is guided by several nonexclusive factors, some of
which are whether the parents are willing and able to provide
the children with a safe environment, the present and future
needs of the children, the present and future danger to the
children's emotional or physical needs, the
children's stability, and the need to prevent constant
litigation in child-custody cases. See id. §
263.307 (West Supp. 2016); Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976); In re Marriage of
Bertram, 981 S.W.2d 820, 822-23 (Tex. App.-Texarkana
1998, no pet.).
court presumes that it is in a child's best interest for
a parent to be appointed sole managing conservator or for
both parents to be appointed joint managing conservators.
See Tex. Fam. Code Ann. § 153.131 (West 2014).
But this best-interest presumption is rebutted by evidence
that such appointment would cause a significant impairment of
the children's physical health or emotional development.
See id. § 153.131(a). And the presumption is
completely "remove[d]" if the trial court finds
credible evidence of "a history of family violence
involving the parents of a child." Id. §
153.131(b); see id. § 153.004(a)-(b) (West
2014). Credible evidence of such a history absolutely
prohibits the appointment of the parents as joint managing
conservators. See id. § 153.004(b). Similarly,
a trial court must deny a parent access to a child if a
preponderance of the evidence reveals a history or pattern of
family violence during the two years before the SAPCR was
filed. See id. § 153.004(d).
Evidence Regarding Conservatorship Factors
and Father married on June 18, 1998. On July 6, 1998, their
first child K.M. (Kayla) was born, and David soon followed on
June 15, 2000. In 2007, when Kayla and David were eight and
six, Mother and Father began using methamphetamine, sometimes
daily and while the children were in the house. That same
year, Mother was diagnosed with bipolar disorder and
attempted suicide six times, in one instance telling Father
that she wanted "the children to know that [Father was]
at fault" for her suicide. Because Father was concerned
Mother would harm the children, he got a protective order
against her that prevented her from having unsupervised
contact with the children. Mother violated the order and was
arrested and eventually placed on deferred adjudication
community supervision, which she successfully served.
Father had custody of the children after the protective
order, DFPS received a report of neglectful supervision of
Kayla and David, which alleged that Father was using
methamphetamine, was "agitated and volatile, " and
wanted to "get rid" of people who were "after
him." DFPS could not determine if there was reason to
believe the report because Father refused to complete a drug
test and the investigator could not get in contact with him.
Father kept the children for approximately one year before
reuniting with Mother.
was born on December 16, 2010. Mother and Father continued to
use methamphetamine daily with brief periods of sobriety. In
December 2013, Father pushed Mother, who was pregnant, during
an argument and put her in a choke hold. Mother freed herself
by biting him. Mother was arrested and placed on deferred
adjudication community supervision for assault, which she
successfully served. Michelle was born January 14, 2014. In
September 2014, Father was arrested after he hit Mother in
the face, pulled her hair, and pushed David after David
stepped between them. Father was convicted of assault causing
bodily injury to a family member.
point, Mother and Father still were using methamphetamine
daily while the children were in the home. Father, a paranoid
schizophrenic, began to believe the police were listening to
him through the electronics in his home, thought the police
were drugging him, and had auditory hallucinations. Mother
had stopped taking her medication for her bipolar disorder.
On February 27, 2015, Father and Mother voluntarily went to
DFPS to get help for their drug addiction and mental-health
issues. On March 5, 2015, DFPS filed a SAPCR and sought the
emergency removal of the children after Mother and Father
tested positive for methamphetamine and amphetamine and
failed to appear for a scheduled meeting with
DFPS. On March 13, 2015, the trial court ordered
the children's removal, ...