In re N.C.

IN THE INTEREST OF N.C., A CHILD

No. 07-21-00044-CV

Court of Appeals of Texas, Seventh District, Amarillo

July 28, 2021

On Appeal from the 320th District Court Potter County, Texas Trial Court No. 93, 234-D-FM, Honorable Carry Baker Associate Judge, Presiding

Before QUINN, C.J., and PIRTLE and PARKER, JJ.

MEMORANDUM OPINION

Judy C. Parker Justice

Appellant Mother, appeals the trial court's judgment arising out of a termination suit brought by the Texas Department of Family and Protective Services.^[1] In her sole issue Mother contends that the trial court erred in appointing Father as the permanent managing conservator of N.C. Because we conclude the trial court did not abuse its discretion, we affirm the trial court's order.

Background

The child the subject of this appeal is five-year-old N.C. N.C 's parents, Mother and Father, lived together for five years after N.C. was born, but they were never married. Mother's six-year-old son, J.E., also lived in the home. Mother and Father had recently separated when the Texas Department of Family and Protective Services became involved with the family in May of 2019.

The Department opened an investigation after receiving a report alleging that Mother was neglectful in her supervision of N.C. and J.E. The report alleged that Mother struck and injured Father with her automobile after a brief altercation at Father's place of employment. Both children were in the vehicle with Mother when the incident occurred. Mother was subsequently arrested for aggravated assault with a deadly weapon. She pled guilty to the third-degree felony offense of assault family violence on a household member with a previous conviction and was placed on two years' community supervision.

After Mother's arrest, the children were removed from Mother's care and the Department filed its petition for protection, conservatorship, and termination of parental rights as to both children.^[2] Mother initially named a man who was deceased as N.C. 's father. However, the Department learned that a birth certificate and acknowledgement of paternity existed and N.C. 's biological father was contacted. Father was named as an alleged father in the Department's amended petition filed in August. Thereafter, the trial court ordered an expedited home study of Father's home, which was denied. N.C. and J.E. were placed with J.E.'s paternal grandparents. The Department implemented separate family service plans for Mother and Father with a goal of reunification.

The trial court conducted a final hearing in this case on December 15, 2020. The caseworker testified that Father's home study was denied "mainly" because of the person Father was residing with at the time. By the time of the final hearing, the majority of the Department's concerns noted in the home study were satisfied in that a person living with Father had moved, he acquired a smoke alarm and carbon monoxide detector, he removed a gun from his home, and he obtained a booster seat and car insurance.

The caseworker testified that N.C. was having unsupervised contact with Mother and Father, the visits with each parent were going well, and both parents had completed their service plans. Father had overnight, weekend visits with N.C. every week, and Father, grandparents, and N.C. all reported that N.C. enjoyed the visits with Father. Mother had a four-hour period of visitation with N.C. each week. The caseworker testified that both parents were employed and had suitable homes for N.C.

The caseworker expressed concerns that if N.C. were placed with Mother, she would deny Father access to N.C. because Mother had done so in the past, citing Mother's dislike for Father, Mother's recent statements that she did not want N.C. around Father, and Mother's lack of improvement in her relationship with Father since the case began. The caseworker recommended that N.C. be placed with Father and that he be named the permanent managing conservator because he was the "non-offending" parent in the incident leading to the Department's involvement and he had completed his services.

At the time of trial, J.E. had been returned to Mother's home and she had almost completed her felony probation. Mother receives disability income for a hearing impairment, and she also has a full-time job. Mother testified that N.C. should live with her because N.C. loves her and "she wants to live with me. [ N.C. ] cries when she has to leave and go back to her current home." According to Mother, she has raised N.C. and knows that N.C. "would be most content" living with her. Mother also testified that she will co-parent with Father and get along for the sake of N.C Mother wants N.C. and J.E. to maintain a close relationship and she believes that it is best for them to stay together.

Father was honorably discharged from the United States Army. He is currently employed at Toot-n-Totum Car Care and he has sufficient income to support N.C. without receiving child support. He also has health insurance available for himself and N.C. Father is a diabetic and he recently had gallbladder surgery. He lives in a two-bedroom apartment ten to twelve blocks from Mother's home. He has a fourteen-year-old son from a prior relationship who he sees on the weekends. His son and N.C. have a good relationship; they enjoy bowling and playing video games.

After Father and Mother separated in January of 2019, they agreed that N.C. would live with Mother. According to Father, Mother made his visitation difficult because she would not allow him to come to her apartment. Father no longer agrees that N.C. should live with Mother because she assaulted him with her vehicle, she has a temper, and he is concerned that N.C. will learn bad habits from Mother.

Father testified that when he arrives for visitation with N.C., "her face lights up." At the conclusion of their visit, N.C. gives him "a goodbye kiss, a goodbye hug, you know, we show each other the sign for I love you." He is teaching N.C. to "sign" to help N.C. communicate with Mother and "to have a decent relationship" with her. He "teache[s] N.C. as much as [he] can." If he cannot teach her the right word, he will locate a YouTube video.

In his closing remarks, the guardian ad litem stated that he believed both parents were capable of taking care of N.C. and that both households were safe and adequate for N.C. However, he expressed concern about Mother's conduct that led to the Department's involvement. He recommended that Father be named as N.C. 's primary conservator.

The trial court appointed Father as permanent managing conservator of N.C. with a residency restriction to Potter or Randall County. The court appointed Mother as a possessory conservator and granted her a standard possession order. The court dismissed the Department. Mother timely appealed the trial court's order.

Standard of Review

We review a conservatorship decision for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In re A.M., 604 S.W.3d 192, 196 (Tex. App.- Amarillo 2020, pet. denied). A trial court abuses its discretion when it acts arbitrarily and unreasonably and without reference to guiding principles. Downer v Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). The trial court's exercise of discretion will withstand appellate scrutiny unless clearly abused. In re A.D.T., 588 S.W.3d 312, 319 (Tex. App.-Amarillo 2019, no pet.); In re Marriage of Hamer, 906 S.W.2d 263, 265 (Tex. App.-Amarillo 1995, no writ). In our review, legal and factual sufficiency challenges to the evidence are not independent grounds of error, but are relevant factors in assessing whether the trial court abused its discretion. In re P.M.G., 405 S.W.3d 406, 410 (Tex. App.-Texarkana 2013, no pet.). An appellate court applies a two-prong analysis when it determines whether legal or factual insufficiency has resulted in an abuse of discretion: (1) whether the trial court had sufficient information upon which to exercise its discretion, and (2) whether the trial court erred in applying its discretion. Child v. Leverton, 210 S.W.3d 694, 696 (Tex. App.-Eastland 2006, no pet.). The sufficiency review is related to the first inquiry. If it is revealed in the first inquiry that there was sufficient evidence, then we must determine whether the trial court made a reasonable decision, and that involves a conclusion that the trial court's decision was neither arbitrary nor unreasonable. Id. It is not an abuse of discretion if some evidence of a substantive and probative character exists to support the trial court's decision. Bates v. Tesar, 81 S.W.3d 411, 424-25 (Tex. App.-El Paso 2002, no pet.).

Because of the fact-intensive nature of reviewing custody issues, an appellate court must afford great deference to the factfinder on issues of credibility and demeanor because the child's and parent's behavior, experiences, and circumstances are conveyed through words, emotions, and facial expressions that are not reflected in the record. Chavez v. Chavez, 148 S.W.3d 449, 458 (Tex. App.-El Paso 2004, no...