      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-14-00361-CV



                                          T. L., Appellant

                                                  v.

                Texas Department of Family and Protective Services, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
      NO. D-1-FM-13-002211, HONORABLE SCOTT H. JENKINS, JUDGE PRESIDING



                             MEMORANDUM OPINION


               After a jury determined that appellant T.L.’s parental rights to O.F., her two-year-old

daughter, should not be terminated, the trial court requested briefing and held a hearing on the

issue of conservatorship. Following that hearing, the trial court signed a decree finding that the

Texas Department of Family and Protective Services should be named as O.F.’s primary managing

conservator (PMC) and that T.L. should be named possessory conservator with supervised

visitation.1 T.L. appeals, arguing that the Department waived its argument that it should be appointed

PMC and that the evidence presented did not overcome the presumption that T.L., as parent, should

be named PMC. We affirm the trial court’s decree.


       1
          The parental rights of B.F., O.F.’s father and T.L.’s fiancé, were terminated. B.F. did not
appear for trial. His attorney stated at trial that he believed B.F. was no longer living in Texas and
that B.F. had only participated in the case via one telephone call at a permanency conference and one
telephone call with O.F.’s child advocate specialist. B.F. never filed an admission of or counterclaim
for paternity and has not appealed from the termination of his rights.
                               Factual and Procedural Background

                The Department first became involved with T.L. and her children in mid- 2011, about

seven months before O.F. was born, when it received several referrals alleging domestic violence

between T.L. and B.F. and abuse and neglect of T.L.’s four-month-old son, B.L., and almost-four-

year-old daughter, S.B. In its affidavit in support of its petition for conservatorship, the Department

alleged that after the reported incident of domestic violence, T.L. claimed it had not happened and

said she loved B.F. and could not pay her rent without him. The Department also received a report

that there was no food or formula in the house, that the children did not have beds, that the residence

was filthy and infested with roaches, and that T.L. did not change B.L.’s diaper often enough. T.L.

was alleged to have beaten S.B., who had been living with her father, with a shoe and to be using

and selling crack cocaine from her residence, and there were several allegations that S.B.’s father

had also physically abused her. S.B. was reported to have had several black eyes and other visible

injuries. The Department was named B.L.’s managing conservator in June 2011, and S.B. was

placed in the Department’s care in November 2011.

                In January 2012, four days after O.F. was born, the Department filed an amended

petition, including O.F. in its petition and seeking temporary conservatorship of the infant. The

Department acknowledged that T.L. had been participating in regular visitation with S.B. and B.L.

and had started anger management and therapeutic services. However, her cooperation with the

Department and visitation with her older children did not start until November 2011, two months

earlier, and T.L. had yet to begin several other required services, including a psychological evaluation,

individual counseling, domestic violence education, and parenting classes. The Department stated



                                                   2
that it wanted T.L. and B.F. to participate in court-ordered services “to reduce the reasonable

likelihood that [O.F.] may be abused or neglected in the immediate or foreseeable future.”

                Although the Department pled to be named O.F.’s temporary managing conservator

in its amended petitions, O.F. remained in her mother’s care until she was almost a year old. In

November 2012, after a failed attempt to return S.B. and B.L. to T.L.’s care, all three children were

removed and placed in foster homes, with the Department still indicating that family reunification

was its goal, and the Department was named as O.F.’s temporary managing conservator. In April

2013, T.L.’s parental rights to B.L. and S.B. were terminated, the proceeding related to O.F. was

severed into a separate cause number, and the Department changed its permanency plan for O.F.

from family reunification to termination and adoption.

                At trial in April 2014, the Department alleged as grounds for termination the

following: that T.L. had engaged in conduct or placed O.F. with someone engaged in conduct that

endangered O.F.’s well-being; that she placed O.F. or allowed her to remain in conditions that

endangered her well-being; that she constructively abandoned O.F.; and that she did not comply with

a court order that resulted from the child’s removal due to abuse or neglect and that established

the actions necessary to regain custody. See Tex. Fam. Code § 161.001(1)(D), (E), (N), (O). The

jury returned a verdict finding that T.L.’s rights should not be terminated. It was not asked any

questions relating to conservatorship. The trial court then asked the attorneys when a judgment

would be prepared, and the Department moved to be named O.F.’s PMC. The trial court asked for

briefing on the issue, stating:




                                                 3
       And even though we didn’t submit a question, which is interesting to me, about
       PMC—you’ll need to think about that, why no one asked the jury if you don’t answer
       yes to these questions, should we then appoint the department as PMC, should we
       appoint mom as possessory conservator. . . . I’ve had other charges where we asked
       layers of questions. For whatever reason, everyone elected not to do that in this case.
       And I think there are, I’m sure, sound reasons and sometimes strategic reasons why
       you choose to do what you do, but now you’re asking me to do something that the
       jury was not asked to do.


               About two weeks after the jury trial, the parties submitted their briefs, and the trial

court held a hearing to discuss whether the Department could seek to be named PMC after not

having submitted the issue to the jury. When asked why the Department had not requested a jury

question about conservatorship, counsel stated, “[W]e just thought that the Court had the authority

to do it if—by looking at the statutes.” The trial court noted that T.L. had also opted not to ask such

questions, and T.L.’s attorney answered that T.L. had told her, “I either want my child with no

rights terminated or I don’t have my child and I’m out of the picture.” T.L.’s attorney said she had

proceeded “thinking that it was going to be an all or nothing, that the [D]epartment would be

dismissed if mother’s rights were intact or she would be completely out of the picture.”

               The trial court stated that, although there was an argument to be made that the

Department had waived the issue, so was there an argument that T.L. had waived her complaint

“because it is common for courts to decide this question after a jury verdict on termination.” The

court concluded that the Department’s request for PMC “was in the pleadings in the alternative” and,

thus, that the issue was fairly before the court. The court stated that O.F. had bonded to her foster

mother and that an immediate return would be “so disruptive and so disorienting . . . that it runs the

risk of great damage to her.” The court lauded T.L. for recognizing that O.F. had bonded with her



                                                  4
foster mother and for being “kind of receptive to a relationship” with the foster mother. The court

decided that it was not in O.F.’s best interest to be returned to T.L. at that time and named the

Department PMC, giving T.L. possessory conservatorship and supervised visitation.


                                  Waiver of Right to Seek PMC

               T.L. argues in three issues that the Department should not have been allowed to ask

to be named PMC because (1) it waived the issue by not seeking to ask the jury any questions related

to conservatorship; (2) it “repeatedly informed” the jury that, should the jury decide not to terminate

T.L.’s rights, the child would go home to her; and (3) it only pled for conservatorship under section

153.005 of the family code, not sections 153.131 and 263.404, and thus waived the right to seek

conservatorship. The Department responds that the court had statutory authority under section

161.205 of the family code to appoint the Department as sole managing conservator, that the jury’s

verdict was given full effect by the court’s conservatorship decision, and that the Department’s

pleadings gave T.L. fair notice that it would seek managing conservatorship in the event that her

parental rights were not terminated.

               The Department’s petition stated that, if T.L.’s parental rights were not terminated,

the court should appoint the Department as O.F.’s managing conservator “as provided in

[section] 153.005, Texas Family Code.” Section 153.005 provides that a trial court must appoint at

least one managing conservator if the parents are separated, as is the case here. Id. § 153.005(a).

We agree with the Department that its pleading, referring to the court’s duty to name a managing

conservator and asking that the Department be so appointed, was sufficient to give T.L. notice of its

intent to seek PMC in the event that the jury decided not to terminate her rights. See Evans v.

                                                  5
Tarrant Cnty. Child Welfare Unit, 550 S.W.2d 144, 145 (Tex. Civ. App.—Fort Worth 1977, no writ)

(“We find the refusal to terminate not to be a dismissal of the case, as contended by mother,

particularly in view of the alternate pleading of Welfare.”). The fact that the Department did not

reference sections 153.131 or 263.404 did not waive the Department’s ability to seek to be

named PMC.2

                Further, section 161.205 provides that if a trial court does not order the termination

of a parent’s rights, it shall either deny the Department’s petition or “render any order in the best

interest of the child.” Tex. Fam. Code § 161.205. And, section 153.002 states that the child’s best

interest “shall always be the primary consideration of the court in determining the issues of

conservatorship and possession of and access to the child.” Id. § 153.002. We hold that the trial

court had statutory authority under the applicable family code provisions, when read as a consistent

and logical whole, to determine that T.L. was not at the time of trial an appropriate PMC and to

name the Department as PMC instead. To hold otherwise, particularly when, as the trial court noted,

T.L. herself opted not to seek the jury’s answer about conservatorship, would put O.F.’s best interest

subservient to technicalities of the rules governing pleadings and waiver. This would violate section




        2
           Section 153.131 provides (1) that a parent shall be appointed managing conservator unless
the trial court finds that such an appointment is not in the child’s best interest and (2) that there is
a rebuttable presumption that it is in a child’s best interest for the parent to be appointed managing
conservator. Tex. Fam. Code § 153.131. Section 263.404 provides that a trial court may render a final
order that does not terminate a parent’s rights but appoints the Department managing conservator
if the court finds (1) that appointment of a parent would significantly impair the child’s health or
development and (2) that it is not in the child’s best interest to appoint a relative or “another person”
as managing conservator. Id. § 263.404(a). T.L. does not explain why it was necessary for the
Department to reference sections 153.131 and 263.404 other than to state that the issue was not tried
by consent and that the Department “was required to plead accordingly.”

                                                   6
153.002, which is the overarching consideration in all matters related to conservatorship and

possession. See In re J.D.H., 661 S.W.2d 744, 748 (Tex. App.—Beaumont 1983, no writ)

(termination case in which court of appeals stated that “technical rules of civil procedure, as to

practice and pleading, are not of controlling importance, since the controlling factor is the best

interests of the child”); Evans, 550 S.W.2d at 145 (“‘The technical rules of civil procedure cannot

apply with equal force in a child custody case as in other civil cases, because the sole determining

factor in a child custody case must be the best interests of the child.’” (quoting Erwin v. Erwin,

505 S.W.2d 370, 372 (Tex. Civ. App.—Houston [14th Dist.] 1974, no writ))); see also Messier v.

Messier, 389 S.W.3d 904, 907 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“In child custody

cases, where the best interests of the child are the paramount concern, technical pleading rules are

of reduced significance.”).

               As for T.L.’s argument that the trial court’s conservatorship determination did

violence to the jury’s verdict, we disagree. It is true that the Department stated in its argument that

“this is the environment that [O.F.] would be going home to if you do not terminate [T.L.]’s rights”

and that neither the Department nor O.F.’s attorney ad litem discussed the possibility that the

Department would be named PMC if the jury did not terminate T.L.’s rights. However, as we noted

before, T.L. also decided not to seek the jury’s answer on conservatorship or to object to the jury

charge, and her attorney stated at the hearing to enter judgment that T.L. did not want to continue

to be involved with the Department in any way. And, we fail to see how the jury’s verdict was

affected by the Department’s argument. Logically, if the Department had instead stated that it would

seek PMC as an alternative to termination, the jury would still have made the same decision, opting

not to terminate T.L.’s rights. In other words, T.L. was not harmed by the Department’s argument.

                                                  7
                  The Department pleaded that it was seeking conservatorship as an alternative to

termination. T.L. did not seek the jury’s answer about conservatorship, preferring, as the Department

notes, to obtain “all or nothing.” The trial court was required to place O.F.’s best interest before all

other considerations in this case, and, after the jury decided T.L.’s rights should not be terminated,

to render an order in O.F.’s best interest and to appoint a PMC. We overrule T.L.’s issues related

to waiver and whether the trial court’s conservatorship decision somehow countermanded the

jury’s verdict.


               Sufficiency of the Evidence Supporting Conservatorship Decision

                  We next consider T.L.’s argument that insufficient evidence supports the trial court’s

conservatorship decision. There is a rebuttable presumption that it is in a child’s best interest for her

parent to be appointed managing conservator. Tex. Fam. Code § 153.131(b). However, the level

of proof necessary to support a trial court’s conservatorship decision is far different than the level

to terminate a parent’s rights to her child. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Unlike

the clear-and-convincing standard used in termination decisions, a court’s decision related to

conservatorship is governed by a preponderance-of-the-evidence standard, is “subject to review only

for abuse of discretion, and may be reversed only if the decision is arbitrary and unreasonable.” Id.

                  The trial court, along with the jury, heard evidence that in 2010, T.L. was arrested for

attempting to pass fraudulent checks, was found to be in possession of marihuana, hydrocodone, and

promethazine, and was believed to have filled fraudulent prescriptions. In 2011, B.F. was arrested

for alleged domestic violence, and T.L. later insisted that B.F. had not abused her. Shortly after that

incident, the Department was informed that T.L. did not have enough food or clothing for S.B. and

                                                     8
B.L. In October 2012 and December 2012, while she was pregnant with O.F. and during the time

the case involving her older children was pending, T.L. tested positive for marihuana, cocaine, and

methamphetamine. T.L. was repeatedly uncooperative with the Department during the pendency of

this case, refusing to provide her address or to contact the Department when required. She again

tested positive for marihuana use in September 2013. T.L. was diagnosed with bipolar and narcissistic

personality disorders and borderline intellectual functioning and at least once expressed that she was

having suicidal thoughts.

               In T.L.’s favor, there was evidence that she had completed anger management and

protective parenting courses; she was successfully discharged from therapy in October 2012; she

was compliant with the conditions of her probation and successfully discharged from probation in

December 2012; she had visitations with O.F. starting in November 2013; she was cooperative with

law enforcement, doctors, and CASA volunteers; and she was observed by her probation officer,

her therapist, and a psychologist to be bonded and appropriate with and attentive to her children.

               Most important, there was evidence that O.F. was closely bonded to her foster parents

and to her brother, who had been adopted by the same foster parents one month before trial. O.F.

was placed in her foster home in November 2012, when she was about nine months old, and

Department witnesses testified that O.F. was comfortable, happy, and thriving in the home. T.L.’s

therapist agreed that it would be detrimental to O.F.’s emotional health and stability to remove her

from her foster home and place her with T.L.3 O.F.’s foster mother testified that O.F. had bonded


       3
           The therapist said his answer was premised on the following facts: that O.F. had been
living in the same home since she was nine months old, that the home was healthy and stable, that
she had been well taken care of, and that T.L. had visited at most four times in the last year. All of
those facts were supported by the evidence.

                                                  9
with both her and her husband. Her foster mother thought it would be “devastating” for O.F. to be

taken away from her brother.

               Based on this record, despite the parental presumption in T.L.’s favor, we cannot

hold that the trial court abused its discretion in deciding that it was not in O.F.’s best interest to

be returned to T.L.’s care at the time the trial concluded. See id.; see also Holley v. Adams, 544

S.W.2d 367, 372 (Tex. 1976) (providing non-exhaustive list of factors to consider when evaluating

best interest: child’s wishes, emotional and physical needs of child, emotional and physical danger

to child, parenting abilities of individuals seeking custody, programs available to assist those

individuals, competing plans for child, stability of home, parent’s actions shedding light on parent-

child relationship, any excuses for parent’s actions). Nor is the court’s decision contrary to the

preponderance of the evidence. We overrule T.L.’s fourth issue on appeal.


                                            Conclusion

               Having overruled T.L.’s complaints on appeal, we affirm the trial court’s decree.



                                               __________________________________________

                                               David Puryear, Justice

Before Justices Puryear, Pemberton, and Field

Affirmed

Filed: November 26, 2014




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