Opinion
14-21-00675-CV
04-21-2022
IN THE INTEREST OF J.B., A CHILD
On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 105690-F
Panel consists of Justices Wise, Poissant, and Wilson.
MEMORANDUM OPINION
KEN WISE JUSTICE.
In this appeal from the trial court's appointment of the Department of Family and Protective Services as permanent managing conservator of J.B. (the Child), the Father contends that the court abused its discretion by not appointing him a managing conservator. In two related issues, he contends that there is insufficient evidence to support a finding that appointing him as a managing conservator would significantly impair the Child's health or emotional development, and the court failed to consider statutory factors in reaching its finding. We affirm.
I. Legal Principles and Standard of Review
The best interest of a child is always the primary consideration of the court in determining issues of conservatorship. In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021) (citing Tex. Fam. Code § 153.002). A parent must be appointed a managing conservator of a child unless the court finds that appointment of the parent "would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development." Tex. Fam. Code § 153.131(a). Similarly, for children that are under the Department's care, as here, a court may render a final order appointing the Department as managing conservator of the child without terminating the rights of the parents if the court finds "(1) appointment of a parent as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development; and (2) it would not be in the best interest of the child to appoint a relative of the child or another person as managing conservator." Id. § 263.404(a). In determining whether to appoint the Department as a managing conservator without terminating parental rights, the court must consider the following factors: "(1) that the child will reach 18 years of age in not less than three years; (2) that the child is 12 years of age or older and has expressed a strong desire against termination or has continuously expressed a strong desire against being adopted; and (3) the needs and desires of the child." Id. § 263.404(b).
A trial court's finding that appointment of a parent as managing conservator would significantly impair the child's physical health or emotional development is governed by a preponderance-of-the-evidence standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Conservatorship determinations are "intensely fact driven," and the trial court is in the best position to observe the demeanor and personalities of the witnesses and to "feel the forces, powers, and influences that cannot be discerned by merely reading the record." In re J.J.R.S., 627 S.W.3d at 218 (quotations omitted). A trial court's conservatorship determination is subject to review for an abuse of discretion and may be reversed only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d at 616; see also In re J.J.R.S., 627 S.W.3d at 218. When, as here, an appellant challenges the sufficiency of the evidence to support the trial court's conservatorship findings, we consider: (1) whether the trial court had sufficient information upon which to exercise its discretion; and (2) whether the trial court erred in its application of discretion. See Z.A.R. v. Tex. Dep't of Fam. & Protective Servs., No. 14-20-00511-CV, 2020 WL 7866800, at *15 (Tex. App.-Houston [14th Dist.] Dec. 31, 2020, pet. denied) (mem. op.).
II. Evidence
The trial took place in 2021 on September 9, 16, and 23, and October 21. The Child was born in June 2009, so she was twelve years old at the time of trial. Father testified that he lived with Mother and the Child until the Child was about two years old. He described two incidents when Mother attacked him with knives and said she would kill him. He testified that during these incidents, the Child was "[p]robably right there in my arms because that was the reason she got at me. . . [The Child] was the argument. [Mother] wanted to take her; and I probably had her and told her, 'No. You're not taking her.'" Mother would also hit him with pots and pans and throw things at him when the Child and other children were not around. He testified that he suspected Mother of using drugs because she "hung around" and was "surrounded" by people who did drugs and sold drugs.
Father testified that they all lived together for about a year before he "put [Mother] out" of the house along with the Child. After that, Mother would prevent Father from seeing the Child. He "stopped trying" to see the Child when she was about three years old, and he lost contact. At the time, he was raising several of his other children as a single parent. When the Child was about eight years old, Father moved to California. By the time of trial, Father had not seen the Child face-to-face in about four or five years.
The Department initiated Family Based Safety Services with Mother in April 2019 due to concerns about neglect. The Child had been left alone at home while Mother was in jail. According to Mother, the Child had been diagnosed with bipolar disorder and attention deficit hyperactivity disorder, but Mother was not having the Child treated due to finances. Mother said that the Child began having suicidal ideations at the age of seven. Mother described an incident when Mother found the Child with a window cord wrapped around her neck. The Child was admitted for a period of time at a psychiatric hospital. The Child reported that she and Mother were homeless for over a year and "often walked the streets for an extensive amount of time." The Child reported fighting with Mother, sustaining bruises, and being spanked by her stepfather, sustaining a fracture to her thumb.
In October 2019, the Child attempted to leave her school and said she wanted to kill herself. Mother said she could not handle the Child and readmitted her to a psychiatric hospital. Mother also tested positive for methamphetamine around this time. Meanwhile, Father was living in a transitional men's shelter in California. He testified that it was not an appropriate place for a child to live, and the Child could not have lived there because it was only for adult men.
Mother and Father agreed for the Child to be placed in Texas with Father's biological daughter, who also had a two-month-old baby. About two weeks into that placement, the daughter called the caseworker in the middle of the night and said the Child was assaulting the daughter, made suicidal ideations, and threatened to kill the baby. The Child was admitted to another psychiatric hospital. The daughter refused continued placement. The Department applied for, and was granted, temporary managing conservatorship of the Child in November 2019.
The Department attempted to place the Child with other family members, but none of the placements were suitable or willing to take the Child. Over the next two years, while in the Department's custody, the Child resided in various residential treatment centers, psychiatric hospitals, group homes, emergency shelters, detention centers, and the Department's offices. She continued to engage in suicidal ideations and gestures, homicidal ideations, and assaultive behavior against staff and peers. When the trial began, she was in a juvenile detention center with pending charges for assault. By the final day of trial, she was living in a hotel under the Department's "child watch" program. The Department had to call the police as a result of the Child's behavior, such as leaving without permission, vandalizing the property, and inciting other kids to violence. The Department had no placement plan for the Child.
During time that the Department had custody of the Child, the Department lost contact with Mother; she did not attend trial. The stepfather died while the Child was in custody.
In November 2020, Father secured subsidized housing-a one bedroom apartment-in California and began asking for the Child to be given to him. The Department attempted to place the Child with Father, but Father was not very cooperative. A caseworker testified that Father was "very uncooperative, very disgruntled against the [Department] and governmental agencies." He would not provide information that the Department requested, or delayed giving information until shortly before trial, regarding his finances and support systems in California.
The Department was concerned about Father's support systems because he had sickle cell anemia that sometimes required hospitalizations, and the Child would need to be supervised if he was in a hospital.
A caseworker testified that Father has never provided a plan for how he is going to care for the Child. Father testified that if the Child ran away or engaged in suicidal behavior, his plan would be "do the best I can." He testified that he planned to home school the Child and would arrange for her medical care.
The guardian ad litem testified that she couldn't get any information from Father, and a good description of his "plan" is "fly by the seat of the pants," which is not good enough for the Child. Father has engaged in "abject refusal to deal with anything on the case."
The guardian recalled that on the first day she met the Child, the Child had stabbed a teacher with a pencil. Although the Child can be a sweet girl and "lovely," she's volatile and aggressive. The guardian testified, "I think her behavior has been understated here [during trial]." She explained, "When [the Child is] told no, she cannot control her impulses and she needs someone who understands that and can deal with it. . . . She's run away from places that were on lock downs. She's assaulted men and women that were trained to take care of her and still she's in juvenile now. She's assaulted people in juvenile. She's a danger to herself and others and needs particular care." The Child also disclosed to others that she had been engaged in self-injury or "cutting" since she was eight years old.
A caseworker testified that the Child initially did not want to call Father, so her contact with him was inconsistent. The guardian testified, however, that Father has been the "one parent who she's talked to regularly" while in the Department's custody. Father testified that they would talk on the phone or video conference. The Child initially objected to being placed with Father for the "whole case" until May 2021. But, by the time of trial, the Child wanted to live with Father. The guardian testified that the Child only chose to live with Father after realizing that placement with Mother or Mother's relatives was not an option.
At a placement hearing on September 30, 2021, the trial court ordered the Child to be placed with Father when she would be released from juvenile detention on October 4. On October 4, a caseworker flew with the Child to California to deliver her to Father. But Father wasn't there. He was in Texas. He explained by text messages, admitted as exhibits, that he was refusing the placement:
Placement was not something I ever agreed to or asked for.
[My lawyer] knew the entire time I'd NOT accept a placement or anything less than custody. I told her that a year ago and NEVER changed my stance. They shut me up in court then y'all agreed to what y'all wanted without my input. So I'm not sure how I'm bound to something I NEVER accepted or agreed to? I literally told the court I was flying to Texas to be in Dallas as at that point I was being advised to do so. In order to get CUSTODY of my child. Not accept a placement! So?
So I guess on the 21st it gets settled hopefully once and for all. If I get her then good. If I don't get [her] I don't. I fought my fight. And if I lose I have no choice but to accept that. I just know I need a final judgment not a temporary babysitting duty.
When I have custody I will take possession of my child. Not doing a 'placement' where someone else has legal custody.
A caseworker texted him that day asking for him to at least talk with the Child:
[The Child] wants to talk to you
She's crying upset
Please answer the phone
Can you please at least talk to [her]
She is very upset and crying in this Airport and she's screaming that she wants to talk to you
Father testified that he did not talk to her on the phone that day. He wrote in his text messages:
I know you won't but instead of begging me to answer the phone. To calm the child. How about beg the judge to grant me full & complete custody. So the child can come to me with no strings attached. And we can live our lives.
I am sorry for hurting her. That's NOT my intentions. I was not able to explain to her. Why I make all the decisions I make. I do LOVE her and I very much want her. However, it just has to be the right circumstances. I can not function under the pressure of being watched and judged. I can't.
Father testified that he refused the placement and that "placement was not something I'm comfortable with." He testified, "I can't live with people standing over my shoulder 24/7. And that's what a placement is. I've got to answer to somebody else, and I can't live like that." He testified that he thought about what refusing the placement would do to the Child, that it broke his heart, but "[s]ometimes you have to make hard decisions," and "[s]ometimes you have to stand by your convictions." He explained that he could imagine the Child's disappointment when he refused the placement, and he later tried to apologize to her "because I know it hurt her."
A day or two after the placement fell through, the Child began experiencing tightness in her throat and chest and difficulty breathing. Emergency medical services personnel were summoned, and they concluded that the Child probably had a panic attack because of the recent events. The guardian testified that Father's refusal to accept the placement endangered the Child's emotional well-being, "and she has still not recovered from it."
The trial court signed a final order appointing the Department as permanent managing conservator of the Child. The court found that appointment of a parent or both parents as managing conservator would not be in the Child's best interest because the appointment would significantly impair the Child's physical health or emotional development, and that it would not be in the Child's best interest to appoint a relative or another person as managing conservator. The court appointed Father as a possessory conservator with the right, among others, to possession of and access to the Child on specified days.
Mother was not named a possessory conservator and has not appealed.
Father appeals.
III. Analysis
Contrary to Father's contention, the trial court heard evidence related to the Section 263.404(b) factors-in particular, the needs and desires of the Child. Although specific desires of the Child regarding termination and adoption were not mentioned, the court heard that the Child ultimately wanted to live with Father. This factor disfavors the trial court's finding, but the trial court was not required to weigh this factor more heavily than evidence of the Child's special needs, Father's failure to provide for those needs or to have a plan for providing for those needs, and Father's refusal to accept the placement of the Child in his home.
Father contends that the case of Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990), is analogous because there, as in this case, "the non-party showed only general concerns regarding the parents but offer no real specific evidence pointing to how the actions or omissions of the parents would significantly impair the child's physical or emotional health."
In Lewelling, the Supreme Court of Texas held that the predecessor statute to Section 153.131 "requires the nonparent to offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child." Lewelling, 796 S.W.2d at 167; see also In re F.E.N., 579 S.W.3d 74, 76-77 & n.5 (Tex. 2019). The court held that there was no evidence to support the appointment of grandparents of the child, rather than the child's mother, as managing conservators based solely on evidence that the mother was unemployed, living in somewhat crowded conditions with other family members, and had been physically abused by the child's father. See Lewelling, 796 S.W.2d at 167.
A more analogous case is Danet v. Bhan, 436 S.W.3d 793 (Tex. 2014), in which the Supreme Court of Texas upheld a jury's verdict appointing nonparents as managing conservators when there was evidence of the parent's conduct-both in the distant past and more recently-demonstrating that appointment of the mother would substantially impair the child's physical health or emotional development. See id. at 797. The mother's past conduct included using cocaine, being arrested for fighting with a boyfriend, failing to provide a stable home environment, and abandoning the child. See id. 794-95, 797. In particular, the mother did not retrieve the child when police temporarily took the child during a domestic disturbance; and when she was not given the child after a court hearing, she moved out of state. See id. at 794-95. Her more recent conduct prior to the trial included failures to visit the child, inconsistent communications, and "sneaking" into a museum. Id. at 797.
Here, there is evidence from both the distant past and more recently to support the trial court's finding that appointment of Father as a managing conservator would substantially impair the Child's physical health or emotional development. Although there is no evidence that Father consumed illegal drugs or had a criminal history, the trial court heard evidence that Father "put out" Mother and the Child from their home while Father knew that Mother had engaged in physical assaults around the Child and Father suspected Mother of abusing drugs. Although Father initially attempted to maintain contact with the Child, he "stopped trying" when she was about three years old. He lost contact with the Child and moved out of state. Father admitted that he did not have a place for the Child to live until November 2020 when he moved out of a homeless shelter. Although Father then sought custody of the Child, he did not timely cooperate with the Department and provide relevant information regarding how Father would care for and provide support for the Child, hindering reunification efforts that the Department pursued with Father. Throughout that time, the Child engaged in numerous instances of assaultive and self-harming behavior and ideations. Finally, he caused emotional harm to the Child while the trial was ongoing by refusing to let the Child come live with him and refusing to talk to the Child when the Child was emotionally upset. She had a panic attack soon after the incident. He knew that his actions hurt the Child, but he did it because he wanted to "stand by [his] convictions." In other words, he placed his own feelings and desires above the Child's emotional well-being.
Considering the evidence recited above, we cannot conclude that the trial court abused its discretion by naming the Department sole permanent managing conservator of the Child and finding that it would not be in the Child's best interest to appoint Father as a managing conservator because the appointment would significantly impair the Child's physical health or emotional development.
Father's issues are overruled.
IV. Conclusion
Having overruled Father's issues, we affirm the trial court's November 12, 2021final order appointing the Department as permanent managing conservator of the Child.