In re Interest of H.V.S.

IN THE INTEREST OF H.V.S., a Child

No. 04-20-00217-CV

Fourth Court of Appeals San Antonio, Texas

September 23, 2020

MEMORANDUM OPINION

From the 57th Judicial District Court, Bexar County, Texas

Trial Court No. 2017PA00393

Honorable John D. Gabriel, Jr., Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Luz Elena D. Chapa, Justice Beth Watkins, Justice Liza A. Rodriguez, Justice

AFFIRMED

Appellant Michelle¹ appeals an order granting Laura and Brian—who served as the foster parents of Michelle's child, Hannah—the right to designate Hannah's primary residence. We affirm the trial court's order.

BACKGROUND

Hannah was born in 2014. In 2016, the Texas Department of Family and Protective Services ("the Department") removed Hannah from Michelle's home, and on February 23, 2017, it filed a petition to terminate her parental rights. On April 20, 2018, the Department placed Hannah in Laura and Brian's home, where she has lived ever since.

On September 10, 2018, the trial court signed a final order ("the original order") denying the Department's petition to terminate Michelle's parental rights. In the original order, the trial court found that appointing Michelle as Hannah's managing conservator "would significantly impair [Hannah's] physical health or emotional development." As a result, the original order appointed the Department as Hannah's permanent managing conservator and Michelle as possessory conservator. The original order granted the Department's petition to terminate the parental rights of Hannah's biological father. Neither Michelle nor Hannah's biological father appealed.

After the trial court signed the original order, Michelle continued working with the Department to satisfy the requirements of her service plan, and eventually the Department allowed Michelle to exercise unsupervised overnight visits with Hannah. On May 15, 2019, Laura and Brian filed a petition in intervention seeking to terminate Michelle's parental rights on a number of grounds. Alternatively, they asked the trial court to dismiss the Department as Hannah's permanent managing conservator and to appoint them as her joint managing conservators.

On December 3, 2019, Michelle filed a motion for authorization to place, alleging she had completed all aspects of her service plan and addressed all issues identified by the Department. She asked the trial court to authorize the placement of Hannah with her or, alternatively, to set a reunification schedule with increasing visitation and the goal of full reunification. Laura and Brian later amended their petition to allege the parties' circumstances had materially and substantially changed since rendition of the original order. They also dropped their request to terminate Michelle's parental rights.

The parties tried Michelle's motion and Laura and Brian's petition to the bench. During the day-long trial, the court heard testimony from Michelle, Laura, Brian, Michelle's mother, Michelle's adult daughter, the Department case manager, a Department caseworker whopreviously worked with the family, and a court appointed special advocate ("CASA") volunteer. The court also heard a recommendation from Hannah's attorney ad litem.

During closing arguments, Laura and Brian contended they had overcome the parental presumption established by section 153.373 of the Texas Family Code because Hannah had "been out of [Michelle's] home for 12 or more months." The trial court agreed. On April 8, 2020, the trial court signed a "Modification to Final Order in Suit Affecting the Parent-Child Relationship" which: (1) removed the Department as Hannah's managing conservator and dismissed it from this case; (2) appointed Michelle, Laura, and Brian as Hannah's joint managing conservators; and (3) designated Laura and Brian as the conservators with the right to determine Hannah's residence. Michelle timely filed a notice of appeal; the Department did not.²

ANALYSIS

Relying on sections 153.131 and 153.373 of the Texas Family Code, Michelle argues the trial court abused its discretion by refusing to apply the parental presumption in her favor because insufficient evidence supports a finding that: (1) allowing Michelle to designate Hannah's residence "would significantly impair [Hannah]'s physical health or emotional development"; and (2) Michelle voluntarily relinquished care of Hannah. See TEX. FAM. CODE ANN. §§ 153.131, 153.373. She also argues the trial court's best interest determination is supported by factually insufficient evidence, and therefore constitutes an abuse of discretion.

In response, Laura and Brian argue the parental presumption does not apply to the modification of an existing order. They also contend the trial court's best interest determination is supported by the evidence.

Does the parental presumption apply under these facts?

Standard of Review

The parties' arguments regarding the parental presumption require us to consider the proper application of several provisions of the Texas Family Code. We review questions of statutory interpretation de novo. In re C.Y.K.S., 549 S.W.3d 588, 591 (Tex. 2018); In re M.I.A., 594 S.W.3d 595, 607 (Tex. App.—San Antonio 2019, no pet.). "Our aim in interpreting a statute is to ascertain and give effect to the Legislature's intent." In re C.Y.K.S., 549 S.W.3d at 591.

Applicable Law

The Texas Family Code provides that in an original suit for conservatorship, possession, and access to a child, a natural parent "shall be appointed sole managing conservator" of a child "unless the court finds that 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." TEX. FAM. CODE § 153.131(a). This presumption in favor of a natural parent in an original suit is rebutted if the trial court finds: (1) the parent voluntarily relinquished care, control, and possession of the child for a year or more; and (2) the appointment of someone other than the parent as the child's managing conservator is in the child's best interest. TEX. FAM. CODE § 153.373.

However, while "[a] natural parent has the benefit of the [statutory] parental presumption in an original proceeding, and the nonparent seeking conservatorship has a higher burden," the same is not true in a modification proceeding. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000). This is because Chapter 153, which contains the statutory parental presumption, only applies to originalsuits to determine conservatorship, possession, and access. See id.; see also In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 78-79 (Tex. App.—San Antonio 2011, pet. denied). In contrast, suits seeking to modify an existing order are controlled by Chapter 156, which does not contain a similar parental presumption.³ See TEX. FAM. CODE ANN. § 156.001; In re V.L.K., 24 S.W.3d at 343. The Texas Supreme Court has identified these chapters as "distinct statutory schemes that involve different issues" because "Chapter 156 modification suits raise additional policy concerns such as stability for the child and the need to prevent constant litigation in child custody cases." In re V.L.K., 24 S.W.3d at 343; see also In re R.T.K., 324 S.W.3d 896, 900 (Tex. App.—Houston [14th Dist.] 2010, pet. denied) (noting those policy concerns "apparently prompted the Legislature to remove any statutory presumption that would favor a parent over a nonparent in a custody-modification proceeding").

Application

It is undisputed that the original order made a final custody determination regarding Hannah and did not appoint Michelle as a managing conservator. See In re Guardianship of C.E.M.-K., 341 S.W.3d at 79; see also In re C.J.C., 603 S.W.3d at 818-19. Both Michelle's motion for authorization to place and Laura and Brian's petition in intervention explicitly sought to modify the terms of the original order, and the order at issue in this case changed the original order's conservatorship provisions. See In re V.L.K., 24 S.W.3d at 343; see also In re Guardianship of C.E.M.-K., 341 S.W.3d at 79. We conclude this is a modification proceeding, so Chapter 153 doesnot apply. See In re Guardianship of C.E.M.-K., 341 S.W.3d at 78-79. We therefore overrule Michelle's contention that the trial court erred by not applying Chapter 153's parental presumption.

Was the trial court's modification order an abuse of discretion?

Our conclusion that Chapter 153's parental presumption does not apply here is not the end of our analysis. Because Michelle contends the trial court "[did] not have sufficient evidence on which to exercise its discretion," we must also consider whether the trial court's modification of the original order constitutes reversible error under Chapter 156. See In re Guardianship of C.E.M.-K., 341 S.W.3d at 80.

Standard of Review

We review a trial court's ruling on a motion to modify for abuse of discretion. In re M.G.N., 491 S.W.3d 386, 406 (Tex. App.—San Antonio 2016, pet. denied). A trial court abuses its discretion if its decision is arbitrary, unreasonable, or without reference to guiding rules or principles. Id. Under the abuse of discretion standard, a challenge to the legal and factual sufficiency of the evidence is not an independent ground of error, but is instead a factor to be considered in determining whether the trial court abused its discretion. See In re K.K.R., No. 04-18-00250-CV, 2019 WL 451761, at *2 (Tex. App.—San Antonio Feb. 6, 2019, no pet.) (mem. op.). "When an appellant challenges the legal and factual sufficiency of the evidence in cases where the proper standard is abuse of discretion, we engage in a two-prong analysis: (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." Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.).

"An appeal directed toward demonstrating an abuse of discretion is one of the...