In re A.J.I.L.

Full title: IN THE INTEREST OF A.J.I.L. AND A.S.L., CHILDREN

Court: State of Texas in the Fourteenth Court of Appeals

Date published: Oct 18, 2016

NO. 14-16-00350-CV (Tex. App. Oct. 18, 2016)

Opinion

NO. 14-16-00350-CV

10-18-2016

IN THE INTEREST OF A.J.I.L. AND A.S.L., CHILDREN

Martha Hill Jamison Justice

On Appeal from the 315th District Court Harris County, Texas
Trial Court Cause No. 2014-05086J-A

MEMORANDUM OPINION

Appellant Father appeals the trial court's decree in a suit affecting the parent-child relationship in which he was appointed possessory conservator of his children Alice and Anna.¹ On appeal, Father challenges the sufficiency of the evidence (1) to overcome the parental presumption of managing conservatorship; (2) to support the orders pertaining to access and possession, rights, powers and duties or child support; and (3) to support the appointment of a non-parent, non-party as sole managing conservator. We affirm.²

1 We use pseudonyms to refer to appellant's children in this case. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.

2 The trial court also appointed the mother a possessory conservator during the same proceeding; however, she has not appealed.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial Removal Affidavit

On July 7, 2014, the Department received a referral for neglectful supervision of six children. According to the referral, the children had been left alone in their apartment for more than two days. The Mother reportedly had been incarcerated following a car accident. Neighbors were allegedly "keeping an eye" on the children, during which time they discovered the children were lighting things on fire inside the apartment.

Daanaa Dorsey, a Child Protective Services investigator, contacted Father regarding the three children alleged to be his-Alice, Anna, and their younger brother David.³ Father stated that the children were with their paternal grandmother. Father stated that he did not know what was going on with Mother, that he did not wish to deal with CPS, and that he would have the grandmother contact CPS.

3 David is the subject of a separate appeal. On December 10, 2014, the trial court signed an interlocutory decree of paternity adjudicating Father the biological parent of Alice, Anna, and David. The remaining three children at issue in the Department's suit had other fathers. Although the cases were tried together, the trial court severed them into separate causes.

On September 15, 2014, a family member contacted Dorsey to report Alice and Anna were staying with their maternal great-aunt, Carolyn Oliver.

On October 6, 2014, the Department filed its original petition "for protection of a child for conservatorship, and for termination in suit affecting the parent-child relationship" as to all six of the children.⁴ The Department requested, as relevant here, that Father be ordered to pay retroactive child support for Alice, Anna and David pursuant to section 154.009⁵ and that, if the children could not safely be reunified with either parent, the court appoint a suitable person as their sole managing conservator pursuant to sections 153.005 and 263.404. The Department further requested that, if reunification with Father could not be achieved, his parental rights be terminated under chapter 161.

4 The Department invoked jurisdiction under chapter 262 of the Texas Family Code.

5 All statutory references herein are to the Texas Family Code.

B. Proceedings

Upon initiation of this suit, the Department sought and was granted temporary managing conservatorship of Alice and Anna. In December 2014, the trial court signed an order continuing the Department's temporary conservatorship and ordering Father to comply with the Department's service plan during the pendency of the case.

In January 2015, Father appeared in court for a status hearing. The trial court signed an order finding that Father had reviewed and understood his service plan. The order further found that Father had been advised that his parental and custodial rights and duties might be restricted or terminated if he was unwilling and unable to provide the children with a safe environment.

On January 29, 2016, following court-ordered mediation, all parties, except for Father, entered into an irrevocable mediated settlement agreement ("MSA"). As it pertains to Alice and Anna, the MSA stated that Carolyn Oliver, a relative, would serve as sole managing conservator of both girls, while Mother and Father would be appointed possessory conservators. The MSA further provided that both parents would pay child support for Alice and Anna in accordance with a minimum-wage paying, 40-hour per week job.

Trial to the court as to all six children was held on March 11, 2016. The Department moved to sever the case into four separate causes.⁶

6 On March 24, 2016, following trial, the court signed an order to sever the suit affecting the parent-child relationship as to Alice and Anna.

Counsel for Father offered Father's irrevocable affidavit of voluntary relinquishment of parental rights as to all three of his children to the Department. Father's counsel stated that he read the document "word for word" to Father; Father signed the affidavit in front of two competent witnesses; and Father indicated he was relinquishing his parental rights voluntarily because he felt it was in the best interest of the children. The affidavit was offered without objection. Although the trial court did not expressly state that the affidavit was admitted, the affidavit appears in the certified reporter's record as "partially admitted."

While all parties understood Father was seeking to relinquish his parental rights as to all three children, the Department argued that relinquishment was not in Alice's and Anna's best interests. The Department sought to have Carolyn Oliver appointed as the sole managing conservator of Alice and Anna, with Father and Mother serving as possessory conservators. Pursuant to the MSA, Mother was not relinquishing her rights to Alice and Anna and had agreed to pay child support. Both the child advocate and the Department caseworker agreed that it would not be in Alice's and Anna's best interests to terminate Father's parental rights. The trial court then made a finding to that effect and clarified that the Department was only asking for the court to accept Father's relinquishment as to David. The Department then requested the trial court order Father to pay child support for Alice and Anna in the amount of $278.20. The trial court granted the request.

The Department called CPS caseworker Tashara Hanton as its only witness. Hanton had been assigned to this case since October 2014 and testified that she was very familiar with the facts of the case. Hanton stated that the MSA called for supervised visits with the children and that the managing conservator would have the responsibility for designating any individual as a potential supervisor. During cross-examination, counsel for Father asked Hanton if Father, having now been named a possessory conservator, would have visitation with the children "just simply as agreed with the caregiver," to which Hanton answered in the affirmative. The Department then urged the court to apply the visitation guidelines set out in the MSA to Father, even though Father had not agreed to the terms. The trial court stated that such a request was "appropriate."

The Department asked the trial court whether it should call Carolyn Oliver—who was available in court— as a witness so that she could consent, on the record, to being the sole managing conservator of Alice and Anna. The trial court did not believe such testimony was necessary, and the trial concluded.

On April 7, 2016, the trial court signed its decree, finding that appointment of either parent as managing conservator would not be in the best interest of Alice and Anna because the appointment would significantly impair the children's physical health or emotional development. The decree appointed Carolyn Oliver as the sole managing conservator of the children, finding such appointment to be in the best interest of the children. The decree further designated Father and Mother as possessory conservators of the children and provided for supervised visitation. The decree also contained an order for both Father and Mother to pay child support to Oliver for the children.⁷

7 Because the Department waived its request to terminate the parental rights of Father as to Alice and Anna, we analyze the order as to his relationship to them under chapter 153 of the family code and not chapter 161.

On April 25, 2016, Father filed a Motion to Set Aside Decree and for New Trial. In his motion, Father argued the Department led him to believe that if he executed a voluntary affidavit of relinquishment of his parental rights as to all three of his children, the court would accept relinquishment as the sole ground for termination. According to Father, he was "fraudulently induced" to sign the affidavit of relinquishment as to all of his children based upon a representation that all would be accepted. Father argued he would not have signed an affidavit of relinquishment as to David if he had known the relinquishment as to Alice and Anna would not be accepted by the court.

II. ANALYSIS

A. Standard of Review

We review managing conservatorship orders for abuse of discretion. In re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). A court abuses its discretion when it acts unreasonably, arbitrarily, or without reference to guiding principles. Id. In this context, legal and factual sufficiency challenges are not independent grounds of error; instead, they are factors to be considered in determining whether the trial court abused its discretion. In re Marriage of Butts, 444 S.W.3d 147, 153 (Tex. App.—Houston [14th Dist.] 2014, no pet.). Trial courts have wide discretion with respect to custody, control, possession, support, and visitation matters. In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.] 2002, pet. denied) (giving deference to trial court because it faces the parties and witnesses and is in the best position to observe their demeanor and personalities). A trial court does not abuse its discretion if there is some evidence of a substantive and probative character to support its decision. R.T.K., 324 S.W.3d at 900.

B. Parental Presumption

In his first issue, Father contends the evidence was legally and factually insufficient to overcome the parental presumption of conservatorship. Father argues the Department failed to rebut this presumption because there is no evidence that appointment of Father as managing conservator would significantly impair the children's physical health or emotional development.

A court's primary consideration in any conservatorship case "shall always be the best interest of the child." Tex. Fam. Code Ann. § 153.002. The presumption that the best interest of the child is served by awarding custody to the parent is well established in Texas law. Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). The presumption is codified in Chapter 153, which governs original custody determinations such as this one.⁸ Under the statute, the trial court is required to presume that the appointment of the parents as joint managing conservators is in the best interest of the children until evidence is presented to rebut this presumption. Tex. Fam. Code Ann. § 153.131(b); Butts, 444 S.W.3d at 154.⁹ It is the Department's burden to rebut the presumption. In re M.D.V., No. 14- 04-00463-CV, 2005 WL 2787006, at *6 (Tex. App.—Houston [14th Dist.] Oct. 27, 2005, no pet.) (mem. op.).

8 Section 153.131 provides:

(a) Subject to the prohibition in Section 153.004, unless the court finds that the appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. . . .

9 Section 263.404(a) utilizes the same standard in termination cases to determine when the "court may render a final order appointing [DFPS] as managing conservator of the child without terminating the rights of the parent of the child[.]" Tex. Fam. Code Ann. § 263.404(a) (providing that such an order is permitted when "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"); see In re L.W., No. 02-16-00091-CV, 2016 WL 3960600, at *2 (Tex. App.—Fort Worth July 21, 2016, no. pet. h.) (mem. op.); see also Tex. Fam. Code Ann. § 161.205 (providing that if the court does not order termination of the parent-child relationship, it shall (1) deny the petition or (2) render any order in the best interest of the child.). Because the Department waived its request to seek termination of Father's parental rights as to Alice and Anna, we consider only chapter 153.

Father did not object at trial to his appointment as possessory conservator. To preserve error for appeal, a party is required to make a timely request, objection or motion to the trial court and obtain an express or implied ruling. Tex. R. App. P. 33.1(a). Accordingly, we conclude Father failed to preserve error with regard to this issue. See In re L.G.R., No. 14-16-00047-CV, 2016 WL 3180600, at *9-10 (Tex. App.—Houston [14th Dist.] June 7, 2016, no pet. h.) (mem. op.) (appellant mother waived complaint regarding trial court's questioning of witness because she did not object to the questions at trial).

Nevertheless, our review of the record establishes the following. Father offered a voluntary affidavit of relinquishment, asking the court to terminate his parental rights as to all three children. There is no evidence in the record Father sought custody of the children in any manner. Father complains merely that the trial court determined relinquishment was not in Alice's and Anna's best interests.¹⁰ Neither his Motion to Set Aside Decree nor his prayer on appeal requests that he be awarded conservatorship of Alice and Anna. Under these circumstances, we conclude there was no burden on either the Department or Oliver to rebut the parental presumption. See K.R.P., 80 S.W.3d at 675 (non-parent appointed sole managing conservator of child not required to rebut the parental presumption when parent did not seek custody of the child). Accordingly, we overrule Father's first issue.

10 To the extent Father contends his affidavit of relinquishment was not admitted into evidence because the trial court did not expressly admit it, we disagree. Because all parties, including Father, treated the affidavit as evidence, and no contested issues were presented, we conclude Father may not complain now on appeal that the affidavit was not in evidence. See McGary v. First Bancredit Corp., 273 S.W.2d 905, 907 (Tex. Civ. App.—Texarkana 1954, writ ref'd n.r.e.) (holding note sued on was introduced into evidence where trial court considered note, made findings with respect to it, and court reporter copied note in the statement of facts, to which all parties agreed and approved).

C. Deviation from Standard Possession Order

In his second issue, Father contends the evidence was legally and factually insufficient to support the trial court's order restricting his access, possession, rights, powers, and duties as well as the order requiring Father to pay child support to a non-party. Father argues he was not a party to the MSA, the terms of which the trial court followed in crafting his order, and there was no evidence that a deviation from the standard possession order was appropriate and in the best interest of the children.

Father did not raise any objections at trial to the Department's requests for child support or a visitation schedule in accordance with the MSA. Thus, Father failed to preserve this issue for appeal. Tex. R. App. P. 33.1(a). However, even if error is preserved, we conclude there is some evidence of a substantive and probative character to support the trial court's orders.

In suits affecting the parent-child relationship, there is a rebuttable presumption that a standard possession order, as outlined in the statute, is in the best interest of the child. See Tex. Fam. Code Ann. § 153.252. A court may deviate from the terms of the standard order if those terms would be unworkable or inappropriate and against the child's best interest or if there is an agreement between the parties. See id. §§ 153.253, 153.255. In ordering terms other than those contained in a standard order, a court may consider (1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factors. Id. § 153.256. The trial court may also place conditions on a parent's access, such as supervised visitation, if necessary for the child's best interest. In re K.S., 492 S.W.3d 419, 429 (Tex. App.—Houston [14th Dist.] 2016, pet. denied) (citing Tex. Fam. Code Ann. § 153.004(e)) ("It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with the child if credible evidence is presented of a history or pattern of past or present child neglect. . ."). We give wide latitude to a trial court's determinations on possession and visitation issues, reversing the court's decision only if it appears that the court abused its discretion in light of the record as a whole. See In re S.A.H., 420 S.W.3d 911, 930 n.31 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)).

Although Father complains the order regarding possession and access deviates from the standard possession order because it follows the MSA, he does not challenge any specific terms of the order. Father concedes that the trial court found his appointment as possessory conservator was in the best interest of the children and that possession and access, as provided by the order, does not exceed the restrictions needed to protect the best interest of the children. However, Father asserts there is no evidence supporting the findings.

We conclude there is sufficient evidence in the record to support the trial court's deviation from the standard possession order. Department caseworker, Hanton, testified as to the visitation schedule set forth in the MSA and that she believed the agreement was in the best interest of all the children at issue. Hanton explained that the managing conservator would have the authority to approve the supervision arrangement for the parents' visitation. On cross-examination of Hanton, Father's counsel asked whether Father's visitation as the possessory conservator would be "just simply as agreed with the [managing conservator]." When Hanton responded in the affirmative, Father did not object to the proposed terms or schedule. The Department then urged the court to order visitation for Father in accordance with the MSA, despite Father's lack of agreement. The trial court stated it believed the Department's request was appropriate. Given the particular circumstances of this case, we cannot conclude the trial court abused its discretion in deviating from the standard possession order.

The Department argues the trial court was required to carry out the terms of the MSA pursuant to section 153.0071¹¹ upon proof that Father relinquished all his parental rights to the Department. Section 153.0071(e) provides that if a mediated settlement agreement meets the requirements of subsection (d), a party is entitled to judgment on the mediated settlement agreement. Tex. Fam. Code Ann. § 153.0071(e). In In re Lee, the Supreme Court of Texas held that the specific provisions of section 153.0071(e) prevailed over the general best-interest standard in section 153.002 and that section 153.0071(e) prohibits a trial court from denying a motion to render judgment on a properly executed Mediated Settlement Agreement based on a broad best-interest inquiry. See In re Lee, 411 S.W.3d 445, 453-58 (Tex. 2013); cf. In re Morris, ___ S.W.3d ___, No. 14-16-00227-CV, 2016 WL 3457953 (Tex. App.—Houston [14th Dist.] June 22, 2016, orig. proc.) (holding that section 153.0071(e) does not apply to suits for termination of the parent-child relationship under Chapter 161). Here, although the MSA admitted at trial complies with the statutory requirements of section 153.0071(d), the record is clear that Father was not a party to the agreement. Therefore, the MSA was not binding on Father, and the trial court was not statutorily required to carry out its terms.

11 Section 153.0071 provides that a mediated settlement agreement is binding on the parties if the agreement:

(1) provides, in a prominently displayed statement that is in boldfaced type or capital letters or underlined, that the agreement is not subject to revocation;

(2) is signed by each party to the agreement; and

(3) is signed by the party's attorney, if any, who is present at the time the agreement is signed.

Tex. Fam. Code Ann. § 153.0071(d). --------

Father also complains the trial court abused its discretion in ordering him to pay child support because he was not a party to the MSA and no evidence was presented that information regarding Father's resources was requested. Pursuant to the family code, a court may order a parent to pay child support. Tex. Fam. Code Ann. § 154.001. If there is no evidence of a party's resources, the court "shall" presume the party has income equal to federal minimum wage. Id. § 154.068. An amount of child support established pursuant to the statutory guidelines is presumed to be reasonable and an order of support conforming to the guidelines is presumed to be in the child's best interest. Id. § 154.122.

The record reflects that during trial, the Department requested Father pay child support for Alice and Anna in the amount of $278.20, stating that amount is "minimum wage for two children." The trial court granted the request and subsequently entered an order for Father to pay monthly child support in the amount of $278.00. Although the trial court ordered Father to pay an amount consistent with the terms outlined in the MSA, this was not an abuse of its discretion because the MSA only asked for child support in accordance with an income of minimum wage. We conclude the trial court complied with the statutory guidelines in ordering Father to pay child support.

Accordingly, we overrule Father's second issue.

D. Appointment of Non-Parent as Sole Managing Conservator

In his remaining issue, Father asserts the evidence is legally and factually insufficient to support the appointment of Oliver as the sole managing conservator. Father contends Oliver was not a party to the suit and, therefore, the trial court was without jurisdiction to appoint her. Father further argues the evidence was insufficient to support a finding that appointment of Oliver was in the children's best interest.

We disagree with Father that Oliver was required to intervene or be formally named as a party in the case. Standing is a constitutional prerequisite to maintaining a suit under Texas law. See Tex. Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). In addition to constitutional limitations on standing, the Texas Legislature has provided a comprehensive framework for standing in the context of suits involving the parent-child relationship. See Tex. Fam. Code § 102.003-007; see also Jasek v. Tex. Dept. of Family & Protective Servs., 348 S.W.3d 523, 528 (Tex. App.—Austin 2011, no pet.). The statutes address only standing to file an original suit. Oliver did not file an original suit. Instead, the Department instituted these proceedings under chapter 263, which authorizes State intervention in cases of abuse or neglect. See In re C.S., 264 S.W.3d 864, 869 (Tex. App.—Waco 2008, no pet.).

When a suit affecting the parent-child relationship is initiated by the Department for the protection of the child, the standing provisions of the family code are not applicable. In re A.D., 480 S.W.3d 643, 645 (Tex. App.—San Antonio 2015, pet. denied); and In re Z.G., No. 11-11-00078-CV, 2012 WL 745090, at *7 (Tex. App.—Eastland Mar. 8, 2012, no pet.) (mem. op.) (same)); see also In re G.B., No. 09-15-00285-CV, 2016 WL 157842, at *5-7 (Tex. App.—Beaumont Jan. 14, 2016, no pet.) (mem. op.) (holding that family code allowed non-party aunt to be appointed child's managing conservator without having been formally named a party to the proceedings where the Department initiated suit and sought the appointment). Accordingly, we conclude the trial court did not abuse its discretion in naming Oliver the managing conservator even though she was never formally made a party to the proceedings.

We further conclude that there is some evidence of a substantive and probative character to support the trial court's decision. Under section 263.3026, the Department can seek to have the trial court award the "permanent managing conservatorship of the child to a relative or other suitable individual" in accordance with the goals of its permanency plan. Id. § 263.3026(a)(3). In early February 2015, the Department filed its first permanency plan and progress report to the court which provided that Alice and Anna had been placed in the care of Oliver since October 2014 and that the permanency goal for the children was first and foremost, adoption by a relative or, alternatively, relative conservatorship. Subsequently, in late March, the Department filed a similar permanency plan. In February 2016, the Department filed its final permanency report prior to trial, stating its primary permanency goal for Alice and Anna was relative conservatorship and recommending that the MSA be accepted and made an order of the court. At trial, the Department made it clear that it was seeking to have the court appoint Oliver as the sole managing conservator, consistent with its permanency plan for relative conservatorship as well as with the MSA. Oliver was present at trial and prepared to testify.

As the petitioner, the Department was also required to prove it was in Alice's and Anna's best interests to have Oliver appointed as their permanent managing conservator. Tex. Fam. Code Ann. § 263.3026(a)(3). The evidence before the trial court demonstrated that the Department, along with Mother, sought appointment of Oliver as managing conservator pursuant to the MSA. The court-appointed advocate filed a report approximately one month prior to trial also recommending Alice and Anna remain in their current placement and that the trial court grant permanent managing conservatorship to Oliver. According to the report, Alice and Anna were doing "exceptionally well" in school, were involved in church and other extracurricular activities, and were in good health. The report further stated that Oliver was providing a "loving and nurturing environment," ensuring the children were current with medical and therapy appointments, and affording stability. Although not admitted at trial, the court could consider this report in making its best interest finding. See In re K.F., 402 S.W.3d 497, 504 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (presuming a trial court takes judicial notice of its file without any request being made and without any announcement that it has done so). There was also evidence before the court that Father wished to relinquish custody. Viewing all the evidence in a light most favorable to the trial court's decision, we cannot say that the trial court's judgment was arbitrary or unreasonable. It was entirely within the trial court's discretion to determine that Father was not willing to provide an environment conducive to his children's physical health and emotional development and that appointment of Oliver as sole managing conservator was in the best interest of the children.

Accordingly, we hold that the trial court did not abuse its discretion in appointing Oliver as the sole managing conservator of Alice and Anna. We overrule Father's third issue.

We affirm the trial court's judgment.

/s/ Martha Hill Jamison

Justice Panel consists of Justices Jamison, McCally, and Wise.

Tex. Fam. Code Ann. § 153.131