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In re L.G.K.S.

Court of Appeals of Texas, Twelfth District, Tyler

September 18, 2019

IN THE INTEREST OF L.G.K.S. AND L.L.L.S., CHILDREN

          APPEAL FROM THE 369TH JUDICIAL DISTRICT COURT ANDERSON COUNTY, TEXAS (Tr.Ct.No. DCCV17-054-369)

          Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

          MEMORANDUM OPINION

          GREG NEELEY JUSTICE.

         Appellant Leslie Sanchez and Appellee Keegan Stewart are the biological parents of L.G.K.S. and L.L.L.S. In 2016, Sanchez initiated an original suit affecting the parent-child relationship (SAPCR) seeking appointment as a joint managing conservator (JMC) with the exclusive right to designate the children's primary residence. Stewart filed a counterpetition seeking the same. Following a bench trial, the trial court signed its final order appointing Stewart as the JMC with the exclusive right to designate the primary residence of the children within Anderson County, Texas. Sanchez presents six appellate issues for our consideration. We affirm.

         Background

         Sanchez and Stewart had L.G.K.S. and L.L.L.S while they were in a long term cohabitating relationship with one another. Both parties agree that a violent incident between them, which occurred around the end of 2015, precipitated the end of their relationship. The Department of Family and Protective Services (the Department) became involved when Sanchez went to the hospital for injuries sustained in the incident. After the incident, the children lived with Sanchez in Fort Worth, Texas. In approximately the middle of 2016, the Department received a report from Stewart's mother that Sanchez was using drugs. The Department asked Sanchez to submit to a drug test, which revealed she was using methamphetamine. Thereafter, the children were placed in Palestine, Texas with Stewart. From middle to late 2016 until February 2018, the children resided with Stewart and his parents. In May, Stewart moved into his own apartment in Palestine with the children and his new fiancé.

         Sanchez initiated this SAPCR in October 2016. In February 2017, Sanchez and Stewart entered into a Rule 11 agreement wherein both parties would be made JMCs with Sanchez given standard possession supervised by Sanchez's father. Stewart was made the JMC with the right to designate the children's residence.

         The trial court conducted a bench trial beginning in February 2018 and ending in May, with the parties presenting evidence on conservatorship issues. The court heard testimony from Sanchez, Stewart, Stewart's parents, Bill and Tamiko Stewart, Sanchez's father, Trinidad Sanchez, and Javette Gray-Gunter, a Department caseworker. The parties asked the court to appoint them both as JMCs, but each petitioned to be designated the JMC with the right to designate the children's primary residence.

         Sanchez presented evidence that Stewart physically abused her during their relationship and continued to verbally abuse her by phone and text message after their relationship ended. She alleged that Stewart kept the children from her for approximately five months after she failed the Department's drug test and tried to alienate her from the children. She complained that the Department did not drug test Stewart prior to placing the children with him, despite her and Trinidad's requests that they do so. Sanchez also cited Stewart's alcohol use, past drug problems, and placement on community supervision for a misdemeanor drug charge, as further reasons supporting her request to be appointed JMC with the right to designate the children's residence.

         Stewart argued that the children, who had been residing with him in Palestine for approximately two years, were healthy, stable, and well cared for by him. He presented evidence that Bill and Tamiko share a close relationship with the children and provide help with the care of the children while he and his fiancé work. Stewart maintained that Sanchez's physical abuse allegations were exaggerated. He described his relationship with Sanchez as "toxic" because of Sanchez's methamphetamine use. He testified that the violence that occurred during their relationship was reciprocal. Stewart also presented evidence that, prior to the Department placing the children with him, his son was frequently troubled by asthma symptoms related to Sanchez's tobacco use. Additionally, while living with Sanchez, the children frequently had lice. Stewart testified that his daughter required oral surgery at two years of age due to her poor dental hygiene while living with Sanchez. Stewart also established that Sanchez's drug use caused her to lose custody of her older daughter for a time. Further, Stewart established that while Sanchez maintains she is sober, she currently has a child by and resides with a man on community supervision for manufacture or delivery of methamphetamine.

         At the conclusion of the trial, the court appointed Stewart and Sanchez as JMCs, with Stewart having the right to designate the children's primary residence within Anderson County, Texas. The court admonished Stewart about his anger issues relating to Sanchez, and ordered no contact with her outside of the designated family communication electronic program. The court made no finding that Stewart had a history of, or present or past pattern of, physical abuse against Sanchez. The court further ordered each party to take a drug test upon each other's request. In the event that Sanchez tested positive for drugs, her visitation would be immediately suspended, and an emergency hearing would be held. In the event Stewart tested positive for drugs, the children would be delivered to Stewart's parents and an emergency hearing would be held. This appeal followed.

         Conservatorship Order

         In Sanchez's first issue, she argues that the evidence is factually insufficient to support the trial court's order appointing Stewart as JMC with the right to designate the children's residence. In her first subpoint, she argues that the trial court disregarded evidence of Stewart's past physical abuse against Sanchez, or alternatively, abused its discretion in finding that the "family violence presumption was rebutted." In her second subpoint, she asks whether "the [c]ourt's disregard to [Sanchez's] sobriety and to her other children cause[d] an improper judgment." In her second issue, she argues that the trial court erred in excluding (1) a police report she made regarding the 2015 incident that led to her hospitalization; (2) photographs of her injuries from the 2015 incident; and (3) an exhibit she describes as "[Stewart's] probation revocation showing he had admitted to alcohol use while he was on probation for possession of a controlled substance."

         In her third issue, she complains that the trial court's treatment of the parties shows that the trial court was biased in favor of Stewart and his parents, and this bias led to an improper judgment. In her fourth issue, she argues that the trial court "awarded paternal grandparents conservatorship under the guise that [Stewart] was awarded the right to designate primary conservatorship violating [Sanchez's] constitutional rights as a parent." In her fifth issue, she complains that the trial court's order regarding future drug testing of her and Stewart gave "paternal grandparents a 'greater right of conservatorship' of the children over [Sanchez] thereby disregarding her parental rights under the Texas Constitution."

         Finally, in her sixth issue she argues that the trial court's abuse of discretion led to an improper judgment that requires reversal.

         While Sanchez labels six issues, her brief does not delineate separate arguments for each issue. Because all of her numbered issues are related and subject to the same standard of review, we address them together.

         Standard of Review

         We review a trial court's decision regarding child custody, control, possession and visitation under an abuse of discretion standard. Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex.App.-Dallas 1999, no pet.). The trial court's judgment will only be disturbed where the record as a whole shows that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex.App.-Dallas 2006, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference ...


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