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In re A.M.

Court of Appeals of Texas, Fifth District, Dallas

August 29, 2019

IN THE INTEREST OF A.M., A CHILD

          On Appeal from the 254th Judicial District Court Dallas County, Texas Trial Court Cause No. DF-13-09918-R

          Before Justices Schenck, Osborne, and Reichek

          MEMORANDUM OPINION

          LESLIE OSBORNE, JUSTICE

         After a bench trial, the trial court signed an order appointing Mother and Father as possessory conservators of their child A.M. The trial court appointed a nonparent, unrelated adult as the child's managing conservator. Mother appeals, contending the trial court abused its discretion in finding that appointing her as managing conservator "would significantly impair the [child's] physical health and emotional development." Because we conclude there was insufficient evidence to support the trial court's finding, we reverse the trial court's order and remand the cause for further proceedings.

         Background

         In late 2017, the Texas Department of Family and Protective Services (the "Department") removed A.M., then aged five, as well as two other children of Mother's, M.O. and P.O., from Mother's home after investigating a report of neglectful supervision. As one of the "reason[s] for Child Protective Services involvement," the Family Service Plan created for the family in November 2017 stated that "[Mother's] unmanaged mental health issues poses [sic] a threat to the ongoing safety of the children." Under "hopes and dreams for the children," the plan stated that Mother "hopes to receive appropriate mental health and substance abuse treatment so she can be the best parent possible for her children." "Service plan goals" included that Mother "will have a psychiatric evaluation and ensure she is medically compliant if she has already completed one," and "will actively participate in therapy to understand and address her own mental health needs." Mother was ordered to "participate in a psychological evaluation to assess her ability to take responsibility for her children, provide a safe and nurturing environment, and alter the pattern of behavior resulting in CPS involvement," to "attend Individual Counseling," to "complete a Psychiatric Evaluation . . . in order to assess her mental health needs," and to "follow all recommendations made" by the service provider of the psychiatric evaluation. The trial court took judicial notice of the family service plan at trial.

         A.M., M.O., and P.O. were placed together in the home of J.J., a distant cousin of M.O.'s and P.O.'s father. Unlike M.O. and P.O., A.M. is not related to J.J. Also living in J.J.'s home and under her care are her own four children, who range in age from five to thirteen. At trial, the Department requested that the court appoint J.J. as sole managing conservator, and Mother and Father as possessory conservators.

         While in J.J.'s care, A.M. visited with Mother at the home of J.J.'s mother, R.J. R.J.'s home was chosen for visits because R.J. and Mother live in the same apartment complex. But J.J. testified that at the time of trial in February 2019, Mother had not visited or seen A.M. since the previous Mother's Day in May 2018. Mother testified that she disliked visiting A.M. at R.J.'s home because she felt that R.J. watched her too closely and "yelled at" her once for "play[ing] with my kids rough." Mother explained that "I don't play with my kids rough. I play with them, and that's what it was."

         Both Mother and Autumn Carter, a Department caseworker, testified that Mother had completed all of the services the court had ordered, including random drug screens, a drug assessment, a psychological evaluation, individual counseling, domestic violence counseling, and parenting classes. But Carter also testified that Mother was not "medication compliant" in accordance with the service providers' recommendations.

         There was no evidence presented about the children. There was no evidence of A.M.'s physical health or emotional development. There was no evidence of A.M.'s relationship with Mother. There was no evidence of A.M.'s relationship with J.J. or with J.J.'s children. There was no evidence of A.M.'s physical or emotional issues or needs. There was no evidence of how Mother's medication compliance, or lack of it, impaired A.M.'s physical health or emotional development.

         After hearing testimony from J.J., Carter, Mother, the father of M.O. and P.O., and the Court Appointed Special Advocate for the children (the "CASA advocate"), the trial court granted the relief requested by the Department and signed an order appointing J.J. as sole managing conservator and Mother and Father as parent possessory conservators of A.M. Mother now appeals.

         Applicable Law

         "It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child." Tex. Fam. Code § 153.131(b). "[U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child." Fam. Code § 153.131(a). "The strong presumption that the best interest of a child is served by appointing a natural parent as managing conservator is deeply imbedded in Texas law." In Interest of J.T.S., No. 05-17-00204-CV, 2018 WL 1465535, at *3 (Tex. App.-Dallas Mar. 26, 2018, no pet.) (mem. op.) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990), and In re B.B.M., 291 S.W.3d 463, 468 (Tex. App.-Dallas 2009, pet. denied)).

         To support a finding of significant impairment, the evidence must do more than merely raise a suspicion or speculation of possible harm. In re B.B.M., 291 S.W.3d at 467. Instead, the evidence must support the logical inference that some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or omissions, will probably harm the child. Id.; R.H. v. D.A., No. 03-16-00442-CV, 2017 WL 875317, at *5 (Tex. App.-Austin Mar. 2, 2017, pet. dism'd). This is a heavy burden that is not satisfied by merely showing the nonparent would be a better choice as custodian of the child. In re B.B.M., 291 S.W.3d at 467. Acts or omissions that constitute significant impairment include, but are not limited to, physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior by the parent. Id. at 469. A factfinder may infer the present fitness of the parent to be managing conservator from the parent's recent, deliberate past misconduct. R.H., 2017 WL 875317, at *5. But evidence of past misconduct, standing alone, may not be sufficient to show present unfitness. Id. "When a nonparent and a parent are both seeking managing conservatorship, the 'close calls' go to the parent." In re B.B.M., 291 S.W.3d at 469; see also Interest of F.E.N., No. 18-0439, 2019 WL 2667029, at *2 (Tex. Jun. 28, 2019) (per curiam) (proof of "significant impairment" "should include the acts or omissions of the parent demonstrating that result") (citing Lewelling, 796 S.W.2d at 167).

         Standard of Review

         Mother alleges that the trial court abused its discretion in finding that appointing her as managing conservator would significantly impair A.M.'s physical health and emotional development. "[A] finding that appointment of a parent as managing conservator would significantly impair the child's physical health or emotional development is governed by a preponderance-of-the-evidence standard." In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). The heightened standards of proof and review for termination decisions do not apply. Id. Instead, conservatorship determinations "are subject to review only for abuse of discretion, and may be reversed only if the decision is arbitrary and unreasonable." Id.; see also In Interest of L.W., No. 02-16-00091-CV, 2016 WL 3960600, at *1 (Tex. App.-Fort Worth Jul. 21, 2016, no pet.) (mem. op.) ("A trial court abuses its discretion if the court acts without reference to any guiding rules or principles, that is, if the act is arbitrary or unreasonable.").

         Legal and factual sufficiency are not independent grounds of error in conservatorship cases but are relevant factors in determining whether an abuse of discretion occurred. Id. at *2. To determine whether the trial court abused its discretion because the evidence was insufficient to support its decision, we consider whether (1) the trial court had sufficient evidence upon which to exercise its discretion and (2) erred in its exercise of that discretion. Id. We conduct the applicable sufficiency review with regard to the first question. Id. We then determine whether, based on the elicited evidence, the trial court made a reasonable decision. Id. The trial court is the sole judge of the credibility of the witnesses and the weight to be given their testimony. In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.-Dallas 2011, pet. denied).

         Discussion

         A natural parent has a fundamental liberty interest in the care, custody, and management of her child. In re B.B.M., 291 S.W.3d at 468 (citing Santosky v. Kramer, 455 U.S. 745, 753 (1982)). This right cannot be infringed absent evidence that such care, custody, and management by the natural parent would result in physical or emotional harm to the child. Id. (citing Lewelling, 796 S.W.2d at 167). Although the Department did not seek to terminate Mother's parental rights, and consequently was not required to meet the "clear and convincing evidence" standard of proof applicable to terminations, it was required to offer evidence to "support the logical inference that some specific, identifiable behavior or conduct of [Mother] will probably harm" A.M. Id. at 467.

         We conclude that the evidence presented at trial, detailed below, was insufficient to overcome "[t]he strong presumption that the best interest of a child is served by appointing a natural parent as managing conservator." See In re B.B.M., 291 S.W.3d at 467. There was no evidence that Mother's "specific, identifiable behavior or conduct," "demonstrated by specific acts or omissions," will probably harm A.M. See id. At most, the evidence "merely raise[d] a suspicion or speculation of possible harm." See id. Consequently, the trial ...


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