Court of Appeals of Texas, Fourth District, San Antonio
the 224th Judicial District Court, Bexar County, Texas Trial
Court No. 2015-PA-02000 Honorable Charles E. Montemayor,
Sitting: Sandee Bryan Marion, Chief Justice Rebeca C.
Martinez, Justice Luz Elena D. Chapa, Justice
Bryan Marion, Chief Justice
Texas Department of Family and Protective Services initially
filed the underlying lawsuit seeking to terminate the
parents' rights to B.P.C.; however, the trial court
ultimately entered an order appointing M.L.H., B.P.C.'s
father, as sole managing conservator, and appointing L.C.H.,
B.P.C.'s mother, as possessory conservator. L.C.H.
appeals the trial court's order asserting the trial court
abused its discretion by severely limiting her possession and
access. We affirm the trial court's order.
Department filed its petition in the underlying lawsuit after
L.C.H. abandoned B.P.C., who was twelve years old, by leaving
him with a credit card to purchase food and instructions on
how to pay bills. L.C.H. did not plan to return, but she did
phone the police upon arriving at a homeless shelter to
inform them of her intentions. L.C.H. was arrested and
charged with abandonment, but she was not convicted. During
the course of the termination proceedings, the Department
decided not to seek termination. Instead, the Department
sought the appointment of M.L.H. as sole managing conservator
and of L.C.H. as possessory conservator with limited
possession and access.
bench trial, the trial court signed an order appointing
M.L.H. as sole managing conservator and appointing L.C.H. as
possessory conservator. With regard to L.C.H.'s
possession and access, the order provided L.C.H. would have
possession and access as mutually agreed to in advance by the
parties with visitation supervised by M.L.H. or a person he
designates. In the absence of a mutual agreement, L.C.H. was
allowed a two hour monthly visit at a supervised monitoring
service in the location where B.P.C. lived. The order further
provided the visitation would be at L.C.H.'s expense;
however, the trial court did not order L.C.H. to pay any
child support to facilitate her ability to pay the travel and
visitation expenses. At the time of trial, B.P.C. was
residing with M.L.H. in Louisiana. The order gave M.L.H. the
right to designate B.P.C.'s residence without regard to
appeals asserting the trial court abused its discretion in
limiting her possession and access.
on Possession and Access and Standard of Review
court has the discretion to restrict or limit a possessory
conservator's possession of or access to a child as
necessary to protect the child's best interest.
Messier v. Messier, 389 S.W.3d 904, 910 (Tex.
App.-Houston [14th Dist.] 2012, no pet.); Tex. Fam. Code Ann.
§ 153.193 (West 2014). "This includes the authority
to determine the frequency and duration of visits, as well as
the limitations and safeguards to be placed on such
visits." In re L.M.M., No. 03-04-00452-CV, 2005
WL 2094758, at *9 (Tex. App.-Austin Aug. 31, 2005, no pet.)
(mem. op.). When a trial court determines a standard
possession order is not in the best interest of a child, the
trial court may "fashion an order that restricts
possession or access so as to eliminate any danger to the
physical or emotional welfare of the child." In re
Walters, 39 S.W.3d 280, 286 (Tex. App.- Texarkana 2001,
review a trial court's order determining conservatorship
under an abuse of discretion standard. In re A.L.E.,
279 S.W.3d 424, 427 (Tex. App.-Houston [14th Dist.] 2009, no
pet.). Under that standard, we defer to the trial court's
resolution of the credibility of the witnesses. Id.
"An abuse of discretion does not occur if some evidence
of a substantive and probative character exists to support
the trial court's decision." Id. at 428.
Accordingly, a trial court does not abuse its discretion in
placing restrictions on a possessory conservator's
possession and access "if the record contains evidence
to support a finding that such restrictions are in the best
interest of the children." In re P.A.C., 498
S.W.3d 210, 219 (Tex. App.-Houston [14th Dist.] 2016, pet.
previously noted, the Department became involved when L.C.H.
abandoned B.P.C. A bench trial was held on January 13, 2017.
L.C.H. did not personally appear at the trial but was
represented by counsel.
Department's caseworker testified L.C.H. was scheduled
for a four hour visit with B.P.C. in October of 2016;
however, she ended the visit after one hour, stating the hour
was sufficient for her. The caseworker testified L.C.H. has
mental health issues, including bipolar, anxiety, and
depression, for which she takes medication. B.P.C. is
autistic. Although L.C.H. was given the opportunity to become
more educated about B.P.C.'s condition, the caseworker
had not seen any improvement in L.C.H.'s visits with