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In re F.R.N.

Court of Appeals of Texas, Tenth District

August 7, 2019


          From the 74th District Court McLennan County, Texas Trial Court No. 2017-1501-3

          Before Chief Justice Gray, Justice Davis, and Justice Neill



         Krystle N. appeals from a judgment that named her and Nadine N., her mother-in-law, joint managing conservators of her daughter, F.R.N., with Nadine having the exclusive right to establish F.R.N.'s primary residence. Krystle argues that the trial court erred by finding that Nadine had standing to bring the action, that the trial court abused its discretion by naming Nadine as a joint managing conservator, and that the trial court abused its discretion in the admission of hearsay evidence. Because we find no reversible error, we affirm the judgment of the trial court.


         Krystle and Matt, Nadine's son, were married at a young age and Krystle got pregnant with F.R.N. a short time later. From the time of F.R.N.'s birth, there was evidence that F.R.N. spent a substantial amount of time with Nadine and Jeff, Nadine's longtime boyfriend, and was spending around half of the time with Nadine by the age of three or four. Krystle and Matt would go out and "have fun" and leave F.R.N. with Nadine. Krystle and Matt were financially unstable and would spend their money on entertainment for themselves, such as tattoos, alcohol, and marijuana, rather than necessities for their home. Nadine spent substantial sums to assist Krystle and Matt for the purpose of ensuring F.R.N.'s safety while she was with her parents, including purchasing a new hot water heater when theirs had been inoperable for a period of time while they had F.R.N. with them, rent, car payments, and F.R.N.'s schooling. This was in addition to Nadine having possession of F.R.N. approximately 60 percent of the time according to Nadine. Nadine had also assisted both Matt and Krystle with employment opportunities.

         In 2015, Matt, and later Krystle, began using marijuana. In late 2016 and early 2017, Krystle started staying out all night and drinking in Austin; and would then drive back to Waco where they were then living, in the early morning. She was also having sex with other men prior to Krystle and Matt separating in January of 2017, when Matt moved to Arkansas. The day that Matt left, Krystle took F.R.N. to Nadine "because she couldn't stand the sight of her." A witness heard Krystle tell Nadine that she couldn't handle F.R.N. and wanted Nadine to watch her. From that time until this proceeding was instituted in May of 2017, Nadine and the witnesses she presented testified that F.R.N. resided primarily with Nadine and Krystle would show up occasionally. Even by Krystle's admission, F.R.N. resided with Nadine at least half the time. Nadine estimated that she took care of F.R.N. almost full time, at least five days a week, and sometimes for longer periods of time.

         Prior to this time, F.R.N. was struggling with grades and behavior in school and had multiple tardies and absences. While residing with Nadine beginning in 2017, her grades and behavior greatly improved at school. Nadine attended all school functions and was very active in assisting at F.R.N.'s school. Krystle was very rarely seen picking F.R.N. up from school and did not attend any school functions.

         Krystle admitted to various people that she was drinking heavily, driving while intoxicated at times, using drugs, and engaging in sexual relationships while F.R.N. was with Nadine. One time a witness smelled alcohol on Krystle's breath while she had been driving with F.R.N. in the car with her.

         When Krystle would go out of town, Nadine would have access to Krystle's residence to feed her dogs. Nadine found marijuana products in Krystle's residence twice in locations that would have been easily accessible to F.R.N. Nadine found edible marijuana which was wrapped to look like candy on her bedside table in her bedroom. Nadine and Jeff also found marijuana "dabs" in her refrigerator. Both times, they disposed of the marijuana rather than reporting her to law enforcement or CPS. At trial, Krystle admitted to using marijuana more than ten times. Nadine found evidence in Krystle's messenger app which Krystle had left open on Nadine's cell phone that she had used marijuana more than twenty times in early 2017.

         On May 2, 2017, Krystle took F.R.N. shopping with her at Target and stole a doll which she gave to F.R.N. Krystle joked with Nadine later that children provide a great distraction to stealing items from a store. F.R.N. was confused about taking items versus paying for them from this incident.

         Nadine filed a petition seeking to be given the right to establish the residence of F.R.N. on May 5, 2017, asserting that F.R.N. would not be safe residing with Krystle. Affidavits from Nadine and Matt were attached to the petition. The trial court conducted the first temporary hearing on May 20, 2017, and after taking the matter under advisement, named Nadine and Krystle as joint managing conservators with Nadine having the right to establish F.R.N.'s residence and Krystle having visitation pursuant to a standard possession order.

         When Krystle would have F.R.N. for extended visits pursuant to the temporary orders, F.R.N. was returned to school at different times in dirty clothes, unbathed, smelling badly, and with her hair unfixed, which was upsetting and embarrassing to F.R.N., who was then six years old. One time she was returned with abscesses on her feet, which Nadine believed was due to dog feces that had been left on the floor of F.R.N.'s bathroom. After visits, F.R.N. would be angry and emotional and hard to control. F.R.N. at times would have bruises that a witness testified that F.R.N. had told her one time was caused by Krystle kicking her repeatedly, although F.R.N. said it was her fault that Krystle was mad. F.R.N. also lost a baby tooth that was not loose when Krystle picked her up, which she said was caused by walking into a door. F.R.N. also alleged that other bruises had also been caused by walking into a door. There was a report made to CPS, but it was ruled out because F.R.N. did not make an outcry against her mother and CPS did not find any other concerns.

         F.R.N. was evaluated for autism by a child psychologist, who determined that F.R.N. did not meet the criteria to be diagnosed with autism at that time. Other testing and diagnostics was conducted, and the psychologist determined that F.R.N. suffers from Reactive Attachment Disorder (RAD), which was based in large part on the instability in her ...

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