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In re G.E.T.

Court of Appeals of Texas, Fourth District, San Antonio

January 2, 2020

IN THE INTEREST OF G.E.T.

          From the 408th Judicial District Court, Bexar County, Texas Trial Court No. 2018-PA-00671 Honorable Laura Salinas, Judge Presiding

          Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Liza A. Rodriguez, Justice.

          MEMORANDUM OPINION

          Liza A. Rodriguez, Justice.

         REVERSED AND REMANDED

         Appellant Father R.T.[1] appeals the trial court's final order designating him as only a possessory conservator rather than a managing conservator of his daughter G.E.T. and requiring supervised visitation. Based on the lack of evidence to rebut the statutory parental presumption, we reverse the trial court's order and remand for further proceedings in the trial court.

         Background

         The child that is the subject of this case, G.E.T., was born in April 2016. The relationship between her mother D.B. and her father R.T. ended in August 2017. In October 2017, the Department of Family and Protective Services began offering Family Based Safety Services to G.E.T.'s parents based on concerns about drug use and domestic violence. In April 2018, the Department petitioned for removal of G.E.T., then two years old, based on concerns related to the mother's drug use, current boyfriend M.G., and allegations of physical abuse against his daughter. After G.E.T. was removed, the Department was designated as temporary managing conservator and G.E.T. was placed with D.T., the ex-wife of R.T. with whom he had two teenage daughters. G.E.T. made good developmental progress and bonded with D.T. and her daughters during the year she lived with them. During the pendency of the case, the maternal grandmother E.C. filed a petition in intervention seeking managing conservatorship of G.E.T. or, alternatively, possessory conservatorship. D.T. also filed a petition in intervention seeking appointment as managing conservator with the intent to adopt G.E.T. At the time of trial, the Department was seeking termination of the parental rights of the mother D.B. only.

         At the bench trial held in April 2019, the Department caseworker Valerie Mendiola testified that R.T. fully completed every requirement of his service plan including drug assessment and domestic violence classes, never tested positive for drugs during the case, and maintained appropriate and consistent visits with G.E.T. The Department had "no concerns" with R.T. and his parental abilities and was not seeking termination of his parental rights. D.B., on the other hand, failed to fully comply with her service plan, tested positive for multiple types of drugs on several occasions, and failed to submit to hair follicle tests on multiple other occasions. Mendiola testified the reason for G.E.T.'s removal was due to D.B.'s actions, not those of R.T. With respect to the maternal grandmother E.C., the Department had initial concerns about her suitability to care for G.E.T. based on a negative home study as well as D.B.'s accusations of physical abuse, neglect, and alcoholism against E.C. At the beginning of the case, D.B. did not want E.C. to have access to her daughter. After E.C. intervened in the case, D.B. "changed her story" and stated she lied about the accusations because she was mad at her mother. Mendiola testified that D.B. consistently lied during the case, and noted that R.T. expressed the same concerns about E.C. and the volatile relationship between her and D.B. The Department's recommendation at the end of trial was that R.T. be designated as joint managing conservator of G.E.T. along with D.T., the current foster mother.

         D.B., twenty-one years old at the time, testified and admitted to having a current substance abuse problem; in fact, she was set to enter the SAFP[2] program for 90 to 180 days due to a felony probation violation. As noted, D.B. gave conflicting testimony about her mother E.C. and the character and stability of their relationship. D.B. moved out of E.C.'s home when she was 13 years old and subsequently went back and forth between her sister's home and E.C.'s home. D.B. renewed her relationship with E.C. in October 2018, and testified at trial that she had "exaggerated" or lied about the problems with E.C. and wanted her to be named managing conservator of G.E.T. As to her relationship with R.T., D.B. testified she was 17 years old when the relationship began and R.T. was 39 years old; he knew D.B.'s age. D.B. stated she began using drugs in 2015 and smoked marijuana with R.T. D.B. also claimed that R.T. introduced her to methamphetamine and cocaine, but that he did not use those drugs himself. D.B. testified that she called the police several times complaining of domestic violence by R.T.; however, she stated he was never arrested and she did not seek a protective order. When asked specific questions characterizing the domestic violence, D.B. agreed that R.T. "hit her with his hand," "pulled her hair," and "threw her to the ground." Her relationship with R.T. ended in August 2017. D.B stated she entered into a relationship with a new boyfriend, M.G., in August 2017 which lasted through March 2018 when G.E.T. was removed by the Department. D.B.'s counselor testified she told him her relationship with M.G. ended in October 2018. During that time period, D.B. admitted she was using heroin and morphine.

         Both intervenors, D.T. and E.C., also testified. Maternal grandmother E.C. testified she did not support the relationship between D.B. and R.T., referring to him as a "predator" who caused her 17 year-old daughter to run away from home. E.C. stated she did not welcome R.T. into her home and he only came there two times, which was contrary to D.B.'s testimony that she and R.T. stayed at E.C.'s home sometimes and at one point traveled together. E.C. stated that D.B. and R.T. were together for two years before she learned his true age. E.C. denied being in a currently abusive relationship, testifying that she left an abusive marriage when D.B. was four years old, and since then had worked full-time, provided a home for her family, and successfully raised three other children all of whom were successful adults with no criminal history. E.C. denied being associated with a gang, using drugs, or excessively consuming alcohol. E.C. herself disclosed that she was the person who called CPS in October 2017 after she found D.B. and her boyfriend M.G. smoking marijuana in her home with G.E.T. in the room. E.C. stated she had been in G.E.T.'s life since she was born and wanted to have custody of G.E.T. Of particular concern to the child's attorney ad litem and the Department, E.C. denied that G.E.T. was developmentally delayed before she was placed with D.T.

         D.T. testified that she and R.T. divorced when their twin daughters were two years old. D.T. testified there was never any physical or verbal abuse during her marriage to R.T., although he did have an affair which she felt was emotional abuse. R.T. consistently stayed present in his daughters' lives and paid child support. Their daughters were 18 years old at the time of trial, were bonded to G.E.T., and planned to attend college locally so they could help care for G.E.T. D.T. testified she had no concerns about R.T.'s parental ability with their twin daughters or with G.E.T. D.T. admitted knowing that R.T. sometimes used marijuana during their marriage but did not know whether he had continued to use it after they divorced. Her relationship with G.E.T.'s mother D.B. was initially good but degenerated after D.B. began communicating with E.C. in October 2018. D.T. testified that G.E.T. had bonded with her and her daughters and she sought managing conservatorship of G.E.T.

         At the conclusion of the evidence, child's the attorney ad litem requested that R.T. and D.T. be designated as joint managing conservators of G.E.T. based on the child's present and future emotional and physical needs. The Department and R.T.'s counsel joined in that request. Counsel for E.C. and D.B. requested that E.C. be designated as managing conservator of the child. The trial court's final order appointed E.C. as sole managing conservator of G.E.T., the parents D.B. and R.T. as possessory conservators with visitation to be supervised by E.C. and D.T., respectively. R.T. appeals.

         Managing Conservatorship

         In his first issue, R.T. challenges the sufficiency of the evidence to rebut the statutory presumption that awarding managing conservatorship to a parent, in this case ...


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