Opinion
NUMBER 13-15-00242-CV
03-31-2016
IN THE INTEREST OF J.S., J.S., AND BABY BOY P., CHILDREN
On appeal from the County Court at Law No. 5 of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Rodriguez and Benavides
Memorandum Opinion by Justice Rodriguez
This case involves the appointment of N.R., a non-parent, as permanent managing conservator of appellant J.P.'s children, J.S., J.S., and Baby Boy P., and the non-appointment of J.P. as the children's possessory conservator. By her sole issue, J.P. challenges the order of the trial court as it relates to the possession of and access to her children. We affirm.
We will refer to appellant as J.P. and her children as J.S., J.S., and Baby Boy P. See TEX. FAM. CODE ANN. § 109.002(d) (West, Westlaw through 2015 R.S.) ("On the motion of the parties or on the court's own motion, the appellate court in its opinion may identify the parties by fictitious names or by their initials only."); see also TEX. R. APP. P. 9.8(b) (providing that in a parental-rights termination case, "the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the minor's identity, to the minor's parent or other family member"). At the time of the April 29, 2015 review hearing, J.S., J.S., and Baby Boy P. were five years old, three years old, and one year old, respectively. M.S. is the father of J.S. and J.S., and L.C. is the father of Baby Boy P. Neither father is a party in this appeal.
We also note that the parties refer to N.R. as "grandma" and as "fictive kin." The trial court ordered "Permanent Managing Conservatorship of all children to current fictive kin placement, [N.R.]." The phrases "fictive relative" or "fictive kin," as used by the parties in this appeal, mean an adult not related to the child by blood or marriage but who has a longstanding and significant relationship with the foster child before the child was placed with the adult by the Department. See "Child Protection Servs. Handbook," TEX. DEP'T FAM. & PROTECTIVE SERVS., at 4513, available at: https://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_4500.asp#CPS4513 (quoting TEX. FAM. CODE ANN. § 264.851 (West, Westlaw through 2015 R.S.)); see also Melton v. Tex. Dep't of Family & Protective Servs., No. 030800168CV, 2010 WL 668917, at *9 (Tex. App.—Austin Feb. 25, 2010, no pet.) (mem. op.) (describing "fictive kin" as someone who has a longstanding and significant relationship with the child).
I. BACKGROUND
Because this is a memorandum opinion and the parties are familiar with the facts, we will not recite them here except as necessary to advise the parties of the Court's decision and the basic reasons for it. See TEX. R. APP. P. 47.4.
On April 14, 2014, appellee the Department of Family and Protective Services (the Department) filed a petition for conservatorship and termination of the parent-child relationship between J.P., the respective fathers, and the children in this case. Ten days later, the trial court named the Department temporary managing conservator of the three children. The children were placed with N.R., and according to the attorney ad litem for the children and counsel for the Department, the placement was "great" and "safe" and the children did not "want to go back to mom."
The Department repeatedly advised the trial court that it was seeking to terminate the parental rights of J.P. and was opposed to an arrangement where N.R. would be given permanent managing conservatorship without termination of parental rights. The Department expressed concern that J.P. would continue to cause problems for the children's placement. The Department requested that, in the event the trial court did not terminate parental rights, it would give N.R. the discretion to allow J.P. to visit so it would put N.R. in "a position where she knows going forward that the children will always be safe because she has full legal authority to make those decisions." On April 27, 2015, J.P. filed a motion with the trial court requesting standard visitation with the children.
Following the April 29, 2015 review hearing where the Department reiterated its position that it was seeking to terminate all parental rights to the children, the following exchange occurred:
The Trial Court: Do you oppose me granting—does any party other than the Department oppose me granting [permanent managing conservatorship to N.R.] today?After explaining that it would take the case under advisement, the trial court asked if there was "[a]nything else anybody has to add?" Only the Department's counsel answered, "No."
. . . .
J.P.'s Counsel: No, Your Honor.
Attorney ad litem: No, as long as it's sole managing conservatorship with complete discretion.
. . . .
The Trial Court: Well, that's what I'm—you're opposed to it?
The Department: Absolutely, your Honor. I'm opposed to it, but if the Court does grant [permanent managing conservatorship], we'd ask that visitation be fully at [N.R.]'s discretion. Parents have to understand that they can't have visits with these children unless they can work out something amicable with [N.R.], and if they can prove that those visits will be safe and the children won't be afraid—if the children don't want to visit parents, they're not going to visit parents.
The Trial Court: And this is the thing—I say this a lot—it's a lot easier to get bees with honey, and maybe that will be good for them because they'll be in a situation where they'll have to be nice. I mean, that's how things get worked out.
On April 30, 2015, the trial court advised the parties of its ruling, via email, which provided in relevant part: "Based on no objections by respondents, Permanent Managing Conservatorship of all children to current fictive kin placement N.R. All visitation at her discretion. . . . That is the Order of the court . . . ." And on June 19, 2015, the trial court signed its "Final Order in Suit Affecting the Parent-Child Relationship." At section 7.1 of the final order, the trial court repeated the above-quoted language from its email.
On December 15, 2015, this Court abated the appeal for clarification of the trial court's June 19 order. We asked the trial court to clarify whether it had intended to appoint J.P. possessory conservator of the children. On January 19, 2016, the trial court entered a clarification order. It reads in relevant part:
1. Orders
1.1 The [c]ourt ORDERED that based on the pleadings, arguments of counsel, and evidence then existing before the [c]ourt on June 19, 2015, it is not in the subject children's best interest for the [r]espondent [p]arents to be awarded possessory conservatorship and in accordance the [c]ourt makes the forgoing findings:
1.1.1. THE COURT FINDS in consideration of [c]hapter 153 of the Texas Family Code that the best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child;
1.1.2. THE COURT FINDS that the presumption that a parent who is not appointed as a sole or joint managing
Following receipt of a supplemental record containing this clarification order, we reinstated the appeal.conservator should be appointed possessory conservator, does not apply in this matter due to the prevailing facts and circumstances before the [c]ourt;
1.1.3. THE COURT FINDS that the appointment of [J.P.] . . . is not in the best interest of the subject children and that parental possession or access would endanger the physical or emotional welfare of the children; and
1.1.4. THE COURT FINDS the terms of this order denying possession and/or access to the subject children by the [r]espondent [p]arents do not exceed those limitations and/or restrictions that are required to protect the best interest of the children.
II. DISCUSSION
By a single issue, J.P. challenges the trial court's order regarding possessory conservatorship of her children. She does not challenge the portion of the court's order that grants permanent managing conservatorship to N.R.
In support, J.P. first argues that the order failed "to specify the terms and conditions for [her] right of possession and access to her children." She contends that "to give [her] possession and access to the children at the discretion of the permanent managing conservator is tantamount to an outright denial of possession and access" and that "the order of visitation is unenforceable by contempt." J.P. complains that by ordering that visitation with the children be "at the discretion of the managing conservator" and by failing to set the specific terms and conditions of her possession and access with the children, the trial court abused its discretion. However, the trial court did not award possessory conservatorship of the children to J.P. Instead, the trial court denied J.P. possession or access to the children. Because J.P. bases these arguments on an incorrect premise, they fail.
J.P. has not filed an amended or supplemental brief since the trial court clarified its original order. Certain of J.P.'s arguments relate only to the trial court's order prior to clarification and are inapposite to the current state of the case.
J.P. also argues that when the trial court did not appoint her possessory conservator, it did not make required findings supporting that determination. She specifically complains that the record does not reflect that the trial court found that J.P.'s possession and access would endanger the children's physical or emotional welfare. We agree that section 153.191 of the Texas Family Code requires a trial court to appoint as possessory conservator a parent who is not appointed managing conservator, unless the court finds the appointment is not in the child's best interest "and that parental possession or access would endanger the physical or emotional welfare of the child." TEX. FAM. CODE ANN. § 153.191 (West, Westlaw through 2015 R.S.). We also agree that the trial court did not express such a finding in its June 2015 order. But in its clarification order, the trial court specifically found that J.P.'s appointment as possessory conservator "would endanger the physical or emotional welfare of the children." So we are not persuaded by this argument.
Finally, by a single sentence in the summary-of-argument section of her appellate brief, J.P. states that "[n]o evidence was presented as to the best interest of the children." Yet Texas Rule of Appellate Procedure 38.1(g) requires an appellate brief to contain a statement of facts supported by record references. TEX. R. APP. P. 38.1(g). J.P.'s statement of facts refers only to the procedural background for this case. It contains no reference to any best-interest evidence adduced at the trial. And rule 38.1(i) requires appellate briefs to "contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record." Id. at R. 38.1(i). "Bare assertions of error without argument or authority waive error." In re J.A.M.R., 303 S.W.3d 422, 425 (Tex. App.—Dallas 2010, no pet.). Finally, in the argument section of her brief, after setting out relevant portions of the family code regarding possessory conservatorship, J.P. argues that the order grants her visitation, fails to specify terms and conditions of that possession, and fails to find that her possession would endanger the children's physical or emotional welfare. She also argues that discretionary visitation is tantamount to its denial. These arguments are misplaced in light of the trial court's clarification order. And her arguments do not mention "best interest"; J.P. provides no argument, citation to the record, or legal authority for a best-interest challenge. Without more, we conclude that any arguments regarding best-interest findings are inadequately briefed. See TEX. R. APP. P. 38.1.
We overrule J.P.s sole appellate issue.
Although the trial court denied J.P.'s visitation with the children, the trial court has not denied J.P. her rights as a parent. The trial court did not terminate the parent-child relationship between J.P. and her children. Should circumstances change, a parent whose rights have been restricted may file a motion to modify the trial court's order. See Niskar v. Niskar, 136 S.W.3d 749, 756 (Tex. App.—Dallas 2004, no pet.). The Texas Family Code provides for modification of an order as to conservatorship, support, or possession of and access to a child if the modification would be in the best interest of the child and the circumstances of the child or a conservator, among others, have materially and substantially changed. Id. (citing TEX. FAM. CODE ANN. § 156.001(1) (West, Westlaw through 2015 R.S.)). --------
IV. CONCLUSION
We affirm the trial court's order.
NELDA V. RODRIGUEZ
Justice Delivered and filed the 31st day of March, 2016.