Court of Appeals of Texas, Second District, Fort Worth
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 ...