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C. I. v. Texas Department of Family and Protective Services

Court of Appeals of Texas, Third District, Austin

October 23, 2019

C. I., Appellant
v.
Texas Department of Family and Protective Services, Appellee

          FROM THE 425TH JUDICIAL DISTRICT COURT OF WILLIAMSON COUNTY NO. 18-0086-CPS425, THE HONORABLE BETSY F. LAMBETH, JUDGE PRESIDING

          Before Justices Goodwin, Baker, and Kelly

          MEMORANDUM OPINION

          Chari L. Kelly, Justice

         C.I. appeals a final order in a suit affecting the parent-child relationship brought by the Texas Department of Family and Protective Services. C.I. challenges the trial court's order, entered on a statutorily compliant mediated settlement agreement (MSA), asserting that the trial court abused its discretion because (1) the circumstances changed almost immediately after entry of the final order, (2) C.I.'s signature on the final order indicates that the final order was approved as to form only, and (3) there is insufficient evidence that the order is in the children's best interest. We will affirm.

         BACKGROUND

         In May 2018, the Department took custody of C.I.'s two children, S.B. and C.B., and placed them with their maternal aunt and uncle, S.I. and G.V.D.P. At the time, the Department was investigating a report of neglectful supervision of the children due to a domestic dispute between C.I. and her boyfriend. The Department's affidavit in support of removal also detailed other instances of domestic violence-in the children's presence-between C.I. and her boyfriend and between C.I. and T.J.B., her former husband and the children's father. The affidavit also described concerns about C.I.'s use of illegal drugs and abuse of prescription drugs. The Department was appointed S.B. and C.B.'s temporary managing conservator, and the trial court issued an order containing a family service plan establishing requirements for C.I. to regain custody.

         In February 2019, the court ordered the parties to mediate. In April 2019, the parties and their attorneys, the children's attorney ad litem, and S.I. and G.V.D.P. participated in a mediated settlement conference. See Tex. Fam. Code § 153.0071 (providing alternative dispute resolution procedures in child-custody cases). The settlement conference culminated in an MSA in which C.I. agreed, among other things, that S.I. and G.V.D.P. would be appointed permanent managing conservators of S.B. and C.B. and that C.I. would be appointed their possessory conservator and have visitation as agreed by her and the managing conservators or, in the absence of an agreement, three hours supervised visitation and one hour of facetime (or similar platform) per month. The MSA was signed by C.I. and her attorney, the Department's representative, the ad litem for the children, T.J.B. and his attorney, and S.I. and G.V.D.P. Attached as an exhibit to the MSA was a "Final Order in Suit Affecting the Parent-Child Relationship" setting forth the agreed terms. The MSA recited that its provisions "are intended to be incorporated into a final order."

         Immediately after executing the MSA, the parties presented the agreement to the trial court. The Department advised the court that the parties had waived a jury trial and reached an agreement on the placement plan for S.B. and C.B. as well as on the parents' visitation with the children. Department representative Teri Freeman testified that the agreement was in the children's best interest because they would "be placed with relatives, their maternal aunt and uncle, and dad will still be able to have visits with them and it's also important that mom continues to have visits with the children." Freeman testified that the agreement would provide the children with a stable environment. Freeman stated that C.I. had a long history of involvement with domestic violence, that she had refused to submit to court-ordered drug testing, and that she was not compliant with the court-ordered service plan. Freeman testified that she had seen no improvement on C.I.'s part during the pendency of the case nor had she rectified the issues that caused the Department to take custody of SB. and C.B. Freeman stated that the children were doing well in their year-long placement with S.I. and G.V.D.P. Freeman testified that it was in the children's best interest for the trial court to adopt the order presented to the court.

         T.J.B., the children's father, testified that the agreement reached by the parties was in the children's best interest. The children's ad litem stated that the agreed order was "certainly" in the children's best interest. C.I. did not attend the hearing, which was conducted immediately after she signed the MSA. The trial court asked C.I.'s counsel whether she believed that C.I. understood the agreement memorialized in the MSA. C.I.'s counsel responded:

I do, Your Honor. I went over it with her, we've been discussing possible options that could be placed in the order for a while now prior to today's mediation and I do believe that she has an understanding of what she has signed and what she has agreed to.

         The trial court noted that the final order presented to the court appeared to have been "approved as to form only and not substance" and stated that the court "wanted to make sure that [C.I.] understood that she was agreeing to this order in substance." The trial court stated: "I believe that it's covered by her signing the mediated settlement agreement that was attached to this order but I'm just wanting to make certain that the record is clear." The trial court entered judgment on the MSA and signed the final order that had been attached as an exhibit to the MSA.

         After the final order was signed, C.I. filed a motion for new trial in which she stated that S.I., her sister and one of the two appointed permanent managing conservators, had died three days after the final order was signed. C.I. argued that the trial court should grant the motion because it was "not in the children's best interest for the children to remain under the managing conservatorship of [G.V.D.P.], who is no longer related to the children since the death of his wife, [S.I.]." C.I. also asserted that the evidence was legally and factually insufficient to support the court's order regarding managing conservatorship of the children. The motion for new trial was overruled by operation of law, and this appeal followed.

         DISCUSSION

         Texas has a policy of encouraging "the peaceable resolution of disputes," particularly in disputes involving the parent-child relationship. Tex. Civ. Prac. & Rem. Code § 154.002; Brooks v. Brooks, 257 S.W.3d 418, 421 (Tex. App.-Fort Worth 2008, pet. denied). In furtherance of that policy, Texas Family Code section 153.0071 permits a trial court to refer a suit affecting the parent-child relationship (SAPCR) to mediation ...


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