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In re A.C.

Court of Appeals of Texas, Second District, Fort Worth

September 19, 2019

In the Interest of A.C., A.C., A.C., and A.C., Children

          On Appeal from the 323rd District Court Tarrant County, Texas Trial Court No. 323-107768-18

          Before Gabriel, Kerr, and Bassel, JJ.

          MEMORANDUM OPINION

          DABNEY BASSEL JUSTICE.

         I. Introduction

         This is a child-protection case in which Appellant Father appeals from the final order in a suit affecting the parent–child relationship that appoints the Texas Department of Family and Protective Services as managing conservator of A.C., A.C., A.C., and A.C. (collectively, the children); that appoints Foster Parents as possessory conservators of the children; and that grants Father and Appellee Mother supervised visitation with the children. In a single issue, Father argues that the trial court reversibly erred by appointing Foster Parents as possessory conservators of the children based on Mother's pleading. Other than this argument, Father raises no challenge that the trial court abused its discretion in the resolution of the conservatorship issues. Because the record conclusively shows that Mother's motion to modify possessory conservatorship was not filed in the underlying trial court cause number and was therefore not considered by the trial court, we affirm.

         II. Background

         The children were removed from Father in July 2018 after he placed them in danger while driving intoxicated with them in the car, running a stop light, and hitting another vehicle; the wreck caused serious injury to one of the children. The children were placed in foster care and had been in Foster Parents' care for ten or eleven months at the time of the final hearing.

         In April 2019, the Department filed a motion to modify possessory conservatorship. In its motion, the Department requested that the trial court appoint V.B., whose relationship to the children was listed as fictive kin and was described as "family friend," as the children's temporary possessory conservator.

         The November 2018 home study on V.B., who had never had a relationship with the children, reflected that she felt that she might "not be the best candidate for a permanent placement[] but [was] willing to help" with the children in order to give Father "the opportunity to get back on track." V.B. also reported that she had criminal history: (1) an arrest in 1993 for theft greater than or equal to $20 but less than $200, for which the case was dismissed; and (2) an arrest in 1993 for theft greater than or equal to $20 but less than $200, for which she was placed on probation for one year and was fined $200. The home study also revealed that V.B. takes medication for diabetes and to regulate her blood pressure and that she has been on disability since 2015 for a pinched nerve disorder in her back and neck.

         At the outset of the final hearing, the parties stipulated to having the Department named as the children's permanent managing conservator without terminating Father's and Mother's parental rights. The crux of the hearing was the appointment of the children's possessory conservator. The Department's April 2019 motion to modify sought to have V.B. appointed as the children's possessory conservator, while Mother claimed to have a motion on file seeking to have Foster Parents appointed as the children's possessory conservators. Father argued that Mother's motion was an attempt to file an affirmative pleading for Foster Parents, who had not intervened in the case.

         Before the presentation of evidence, Mother's counsel asked the trial court to base its possessory conservatorship ruling solely on the State's motion and to defer a finding on Mother's motion. At the conclusion of the final hearing, Mother's attorney alerted the trial court that Mother's motion to modify possessory conservatorship was not part of the trial court's file because he had put the wrong cause number on the motion. The trial court then set forth its ruling on the State's motion as follows:

Regarding possessory conservatorship, based on a preponderance of the evidence, the Court must deny the Department's motion for placement with [V.B.] The Court does not find by a preponderance of the evidence that it is in the children's best interest at this time for multiple reasons.
The Court ha[s] serious concerns about a lot of focus from dad's testimony and from [V.B.] herself about reuniting the children with dad. . . .
Another concern the Court has was that the home study -- it appears as though the Department is trying to fit a square peg in a round hole. It's extremely disappointing that this thing was so old and there were so many problems, which weren't even addressed until it seems recently, as kind of a "let's hurry up and get ready for final trial or a final hearing," and that is extremely concerning, because [V.B.] couldn't confirm how long she'd be a permanent placement. And so that coupled with the idea that she was, you know, helping him -- I'm glad she wanted to step up to help him get the kids back, but those two combinations, her being unsure about the ...

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