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In re J.M.

Court of Appeals of Texas, Second District, Fort Worth

August 31, 2017






         Appellee K.D. (Mother)[2] 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.


         In 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.

         In May 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.[3] 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.

         The 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.

         Lynn testified that at different times before and after the children's removal from Mother, [4] 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[5] 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.

         Father 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.

         At the 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.

         Lynn 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.

         Standard ...

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