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In re A.R.R.

Court of Appeals of Texas, Fifth District, Dallas

June 29, 2017

IN THE INTEREST OF A.R.R., A CHILD

         On Appeal from the 303rd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-14-11946

          Before Justices Bridges, Lang-Miers, and Evans

          MEMORANDUM OPINION

          DAVID L. BRIDGES, JUSTICE

         Jimmy Todd Rodriguez appeals the trial court's order appointing Charles Welhausen sole managing conservator of A.R.R., Rodriguez' son; appointing Courtney Louise Wilbur, A.R.R.'s mother, possessory conservator with certain rights and duties with respect to A.R.R.; finding that neither possession nor access by Rodriguez was in A.R.R.'s best interest; and finding that A.R.R.'s paternal grandparents had abandoned their request for relief. In two issues, Rodriguez argues the trial court violated his Due Process rights, and A.R.R.'s paternal grandparents received ineffective assistance of counsel. We affirm the trial court's judgment.

         In June 2014, Welhausen filed his original petition in suit affecting the parent-child relationship seeking, among other things, to have himself appointed joint managing conservator of A.R.R. along with Wilbur. In July 2015, A.R.R.'s paternal grandparents filed a pro se petition for intervention seeking possession of or access to A.R.R. At trial in February 2016, Welhausen testified A.R.R. was five years old and had lived with Welhausen since he was one year old. "Way before" Wilbur was pregnant with A.R.R., Wilbur's brother told Welhausen that Wilbur was "locked in an apartment with her boyfriend and her boyfriend was beating her up and she [didn't] have any way to get out of there." Wilbur's brother asked Welhausen to give him a ride to Wilbur's apartment and help "get her out of the apartment where she's being abused."

         After A.R.R. was born, Welhausen helped Wilbur with A.R.R. "since he was three weeks old." By the time A.R.R. was three months old, he and Welhausen "had bonded and [Welhausen] saw a bleak future for [A.R.R.] with his biological family." Welhausen testified he provided a home, food, and clothing for A.R.R. and sent A.R.R. to school with no assistance from Wilbur or Rodriguez. Welhausen testified his relationship with A.R.R. is that of a father and son. Welhausen testified A.R.R. loves Wilbur, wants a continuing relationship with her, and it is in A.R.R.'s best interest to continue to see Wilbur. However, Welhausen testified Wilbur "has a lot of problems in her life, " was a victim of domestic violence "since the day [Welhausen] met her, " and "was not in a stable position" at the time of trial. Welhausen testified he was "deathly afraid" what would happen if A.R.R. had unsupervised visitation with Wilbur. Welhausen testified it was in A.R.R.'s best interest to have supervised visitation, and Welhausen asked for the discretion to work with Wilbur so that she could spend time with A.R.R.

         Wilbur testified that, while she was pregnant with A.R.R., Rodriguez "made a comment that he was going to hang [Wilbur] from a tree and gut [her] stomach open while [she] was pregnant." Rodriguez was violent with her while she was pregnant and after A.R.R. was born. Wilbur testified A.R.R. thinks Welhausen is his father and calls him "daddy." Wilbur testified she was ready to begin domestic violence counseling. Until she received more extensive counseling, Wilbur testified it was in A.R.R.'s best interest to continue supervised visits with A.R.R., and it was in A.R.R.'s best interest to remain with Welhausen.

         Rodriguez testified that, at the time of trial, he was serving a twelve year sentence on a "plea bargain of family violence" that violated his probation on a charge of aggravated robbery. The family violence charge was for two offenses of family violence against Wilbur while she was pregnant. Rodriguez objected that he "never was guilty, " and he "signed a plea bargain for less time." The trial judge overruled Rodriguez' objection. In response to questioning, Rodriguez admitted he had one aggravated robbery charge in Dallas County; "maybe four" assault charges; "maybe three" assault family violence charges, with Wilbur being "two and three"; one guilty plea to burglary of a vehicle; one guilty plea to possession of a controlled substance; and one guilty plea to "forgery of a government document, which would be counterfeit money." Following the trial, the trial court entered an order appointing Welhausen sole managing conservator of A.R.R., appointing Wilbur possessory conservator, and declining to appoint Rodriguez a conservator. This appeal followed.

         In his first issue, Rodriguez argues the trial court abused its discretion by denying him due process. In a one-paragraph "statement of facts, " Rodriguez states he has been incarcerated since 2011 serving a twelve-year sentence but nevertheless seeks custody of A.R.R. and visitation rights. Rodriguez argues that a parental interest is a fundamental right protected by the due process clause, and DNA testing showed that Rodriguez is A.R.R.'s biological father. In his analysis of his due process claim, Rodriguez argues only that the trial court should have granted the paternal grandparents access to A.R.R. so that Rodriguez, being incarcerated, could "have access to his child through the paternal grandparents."

         We review a trial court's decision regarding custody, control, and possession matters involving a child under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000).

         We note that the trial court did not terminate Rodriguez' parental rights but only declined to appoint him a conservator of A.R.R. The trial court found it was not in A.R.R.'s best interest to grant Rodriguez any possessory interest but was in A.R.R.'s best interest to make Welhausen sole managing conservator and Wilbur possessory conservator. Rodriguez does not present argument as to how his due process rights were violated. Instead, Rodriguez presents three or four pages arguing about Wilburr's character but never shows how the trial court erred in awarding custody to Welhausen. The record shows Rodriguez has never sought possession or involvement in A.R.R.'s life but has engaged in criminal activity, including assaulting Wilbur while she was pregnant with A.R.R. and after he was born. We conclude Rodriguez has not established that the trial court abused its discretion in declining to appoint him a possessory interest in A.R.R. or that the trial court somehow violated his due process rights. See Gillespie, 644 S.W.2d at 451; In re S.R., 452 S.W.3d 351, 366 (Tex. App.-Houston [14th Dist.] 2014, pet. denied) (criminal activity, especially history of domestic violence in front of children, supported trial court's best-interest finding). To the extent Rodriguez complains of the trial court's award of a possessory interest to Wilbur, an appealing party may not complain of errors that do not injuriously affect it or that merely affect the rights of others. Torrington Co. v. Stutzman, 46 S.W.3d 829, 843 (Tex. 2000). We overrule Rodriguez' first issue.

         In his second issue, Rodriguez argues his parents, A.R.R.'s paternal grandparents, received ineffective assistance of counsel. Again, Rodriguez may not complain of errors that affect the rights of others. See id. Further, the doctrine of ineffective assistance of counsel does not extend to civil cases. McCoy v. Texas Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.- Dallas 2006). We overrule Rodriguez' second issue.

         We affirm the trial ...


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