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In re D.M.

Court of Appeals of Texas, Second District, Fort Worth

March 30, 2017






         In this 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. 43.2(a).


         Appellants 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).

         A. Factors to be Considered

         A 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.).

         A trial 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).

         B. Evidence Regarding Conservatorship Factors

         Mother 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.

         While 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.

         Mandy 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.

         By this 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.[2] On March 13, 2015, the trial court ordered the children's removal, ...

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