Court of Appeals of Texas, Second District, Fort Worth
THE 360TH DISTRICT COURT OF TARRANT COUNTY TRIAL COURT NO.
GABRIEL, KERR, and PITTMAN, JJ.
MEMORANDUM OPINION 
ELIZABETH KERR JUSTICE.
K.D. (Mother) voluntarily placed her son J.M. (John)
with Appellant L.B. (Lynn) while the Department of Family and
Protective Services (DFPS) investigated Mother. After Lynn
cared for John for about nine months, she filed an original
suit affecting the parent-child relationship seeking sole
managing conservatorship of John. After a bench trial, the
trial court appointed Mother and John's father, Appellee
J.M. (Father), as John's joint managing conservators. In
two issues, Lynn challenges the trial court's order,
complaining that the trial court abused its discretion by
appointing Mother and Father as joint managing conservators
and by not appointing her as sole managing conservator. We
reverse and remand.
April 2014, Lynn met Mother and her two children, A.F. (Ava)
and John, through Lynn's job as a teacher at a Head Start
program Ava and John attended. In August 2014, when John was
18 months old, Mother voluntarily placed the children with
Lynn when DFPS began investigating Mother for child abuse.
Ava eventually went to live with her father.
2015, Lynn filed suit seeking sole managing conservatorship
of John. See Tex. Fam. Code Ann. §
102.003(a)(9) (West Supp. 2016) (conferring standing on
"a person, other than a foster parent, who has had
actual care, control, and possession of the child for at
least six months ending not more than 90 days preceding the
date of the filing of the petition"). Mother, through
her counsel, filed a general denial in early July 2015. Later
that month, the trial court entered agreed temporary orders
appointing Lynn as John's temporary sole managing
conservator and ordering that Mother and Father have
supervised access to John. DFPS closed its case in October 2015
but did not notify the parties. Father, acting pro se, filed
a counterpetition in May 2016, requesting that he be named
John's sole managing conservator, that Mother have
supervised access to John, and that Lynn have no access to or
possession of John.
case was tried to the bench on June 30, 2016. At that time,
John was three years old and had lived with Lynn for nearly
two years. The trial court heard testimony from Lynn, Mother,
Father, one of Lynn's coworkers at the Head Start
program, and two of Mother's sisters. In addition to
hearing testimony about John's life since August 2014,
Lynn's fitness to be John's conservator, and
Mother's and Father's lives both before and after the
children's removal, the court heard that Mother had
physically abused the children and that Father had physically
abused Mother and John.
testified that at different times before and after the
children's removal from Mother,  Ava showed up at school with
burns on her legs, a cut over her eye, a black eye, and a
"busted lip." In July 2015, Mother pleaded guilty
to two counts of bodily injury to a child (Ava) for two
incidents, one in August 2014- which precipitated DFPS's
investigation and Mother's voluntarily placing the
children with Lynn-and the other in November 2014.
See Tex. Penal Code Ann. § 22.04(f) (West Supp.
2016). The trial court in that proceeding placed Mother on
deferred-adjudication community supervision for three years
for each offense. Her plea-bargain and community-supervision
terms prohibited her from having unsupervised visitation with
the children. According to Mother, in one of the cases (she
did not specify which one), Ava was in the possession of
Mother's sister E.D. (Emma) when the injury occurred.
Mother did not deny the other incident.
Emma testified that she had
witnessed Mother backhand Ava across the mouth and hit John
on his chest but admitted that she had never witnessed Father
hurting the children. Emma also testified that John had a
burn on his face. Lynn testified as well that while John was
in Father's possession, he suffered a third-degree burn
on his face that required medical treatment at a hospital.
admitted to hitting and choking Mother on December 31, 2014,
but he and Mother both insisted that it was the only time he
had physically assaulted her. Father was charged with two
counts of assault causing bodily injury. See id.
§ 22.01(a)(1), (b)(2)(B) (West Supp. 2016). He pleaded
guilty to and was convicted of one count of misdemeanor
assault and was sentenced to 30 days in jail. See
id. § 22.01(a)(1), (b). Lynn's coworker at the
Head Start program testified that before the children's
removal, Mother showed up at the children's school with a
"busted lip" on one occasion and a black eye on
another. Mother told Lynn and her coworker that Father had
hit her. Although Father denied it, Mother's sister Emma
also testified that she saw Father hit and choke Mother in
the fall of 2014 in front of the children. Mother's
sister V.D. (Vera) testified that during the summer of 2014,
she lived in the same apartment complex as Mother. Vera never
saw Mother with black eye or "busted lip" and never
witnessed Father assaulting or fighting with Mother. Vera
also said that she never saw Mother hit John.
trial's conclusion, the trial court affirmatively stated
on the record that there was a history of family violence.
But because the trial judge was a "big believer that
parents should raise children, " he appointed Father and
Mother as joint managing conservators and removed Lynn as
temporary sole managing conservator. The trial court gave
Father the exclusive right to designate John's primary
residence and ordered that Mother pay child support to Father
and have supervised access to John on the first, third, and
fifth weekends of every month.
timely requested findings of fact and conclusion of law and
later timely filed a notice of past-due findings and
conclusions. See Tex. R. Civ. P. 296, 297. The trial
court did not, though, file any findings and conclusions.