Appeal from the 318th District Court Midland County, Texas
Trial Court Cause No. FM 60, 346
consists of: Wright, C.J., Willson, J., and Bailey, J.
M. BAILEY JUSTICE
single issue, Appellant, S.R.S., contends that the trial
court abused its discretion by making a temporary deviation
from the standard possession order pertaining to her
possession of and access to A.K.B., her minor daughter.
Specifically, Appellant protests the trial court's order
limiting her possession of the child to once a month for a
one-year period. We affirm.
Department of Family and Protective Services instituted the
underlying proceedings as a suit for the protection and
conservatorship of A.K.B., who was three years old at the
time of the final hearing. The Department also sought the
termination of Appellant's parental rights in its initial
pleadings. Daisy Campos, a caseworker for Child Protective
Services, testified that the child was removed from
Appellant's custody based upon concerns of
Appellant's drug use and mental health issues that
included suicide attempts and at least forty
hospitalizations. At the time of the removal, the child was
living with her maternal grandmother in dirty conditions;
Appellant's whereabouts were unknown.
Department originally placed A.K.B. with a foster family.
However, the foster family was unable to care for the
child's special needs, which included a narrowed
esophagus and delayed speech development. The Department then
placed the child with Appellee, the child's father.
testified that A.K.B. had done well in the placement with
Appellee. Campos further testified that Appellant had
satisfactorily performed the tasks required of her by the
various programs and services required by the Department.
Accordingly, the Department was no longer seeking the
termination of Appellant's parental rights at the time of
the final hearing. Instead, the Department recommended that
Appellant and Appellee be named as joint managing
conservators with Appellee being named as the parent to
designate the child's primary residence. Campos also
stated that the Department recommended a "standard
conclusion of the final hearing, the trial court orally
announced that the parents would be named as joint managing
conservators with Appellee being the parent to determine
A.K.B.'s primary residence. The trial court also
announced that Appellant would receive "standard
visitation." Appellee's counsel asked the trial
court for clarification on the number of visitations that
Appellant would have each month when he asked,
"[I]t's just once a month for 100 miles, is that
correct?" When the trial court replied to the question
in the affirmative, Appellant's counsel apprised the
court that, under the standard possession order for parents
living more than 100 miles apart, the noncustodial parent has
an election to exercise visitation either every other weekend
or once a month. See Tex. Fam. Code Ann. §
153.313(1) (West 2014). At the conclusion of the trial
court's ruling, the trial court announced that Appellant
would have visitation with A.K.B. for once a month for the
first year and that, after one year, it would be her election
between every other weekend or once a month.
court has broad discretion to fashion the terms of an order
related to custody, visitation, and possession. See In re
Marriage of Swim, 291 S.W.3d 500, 504 (Tex.
App.-Amarillo 2009, no pet.). "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." Fam. § 153.002.
Because a trial court has broad discretion to decide the best
interest of a child in family law matters such as custody,
visitation, and possession, we review a trial court's
order addressing these matters for an abuse of discretion.
See Arredondo v. Betancourt, 383 S.W.3d 730, 734
(Tex. App.-Houston [14th Dist.] 2012, no pet.). The trial
court's order on these matters may be reversed only if it
appears that the court abused its discretion in light of the
record as a whole. In re Marriage of Swim, 291
S.W.3d at 504. A trial court abuses its discretion when it
acts arbitrarily or unreasonably, without reference to any
guiding rules or principles. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990). There is no abuse of discretion
where the record contains some evidence of a substantive and
probative character in support of the trial court's
decision. In re Marriage of Swim, 291 S.W.3d at 504.
public policy in this State is to assure continuing contact
between children and parents who have established the ability
to act in their child's best interest; to provide a safe,
stable, and nonviolent environment for the child; and to
encourage parents to share in their child's development.
Fam. § 153.001(a). While the guidelines in the standard
possession order are intended to guide courts as to the
minimum possession for a joint managing conservator, there is
a rebuttable presumption that the standard possession order
provides the reasonable minimum possession of a child for a
parent named as a joint managing conservator and that the
order is in the child's best interest. In re
N.P.M., 509 S.W.3d 560, 564 (Tex. App.-El Paso 2016, no
pet.); see Fam. §§ 153.251(a), 153.252(1),
(2). If there is sufficient evidence to rebut this
presumption, however, the trial court may then deviate from
the standard possession order. N.P.M., 509 S.W.3d at
564; see Fam. § 153.256. When deviating from
the standard possession order, the trial court may consider
(1) the age, developmental status, circumstances, needs, and
the best interest of the child; (2) the circumstances of the
managing conservator and of the parent named as a possessory
conservator; and (3) any other relevant factor. Fam. §
at the outset that Section 153.258 provides a mechanism
whereby a party can request the trial court to specify the
reasons why it deviated from the standard possession order.
Fam. § 153.258. Appellant did not request findings under
this section. Accordingly, we apply the same standard of
review as when a party fails to make a request for findings
of fact under Rules 296 through 299 of the Texas Rules of
Civil Procedure. See Niskar v. Niskar, 136 S.W.3d
749, 754 (Tex. App.-Dallas 2004, no pet.). It is implied that
the trial court made all findings necessary to support its
judgment. Worford, 801 S.W.2d at 109.
is correct that, when the parents live over 100 miles apart,
the standard possession order gives the noncustodial parent
an election between every-other-weekend possession and
once-a-month possession. Fam. § 153.313. Appellant
contends that the trial court abused its discretion in making
the temporary deviation from the provisions of Section
153.313 because ...