Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 303rd Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-14-11946
Justices Bridges, Lang-Miers, and Evans
L. BRIDGES, JUSTICE
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.
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."
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.
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
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.
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."
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).
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.
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.
affirm the trial ...