                                          NO. 07-09-0045-CV

                                    IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                              AT AMARILLO

                                                 PANEL C

                                          OCTOBER 27, 2009

                               ______________________________


                              IN THE INTEREST OF S.M.L., A CHILD

                             _________________________________

                 FROM THE 110th DISTRICT COURT OF FLOYD COUNTY;

                     NO. 9918; HONORABLE WILLIAM P. SMITH, JUDGE

                              _______________________________

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


                                      MEMORANDUM OPINION


        S.M.L., the child the subject of this suit, is a male child born December 14, 2006.

Appellants, S.M.L.’s maternal grandparents, appeal an order issued by the Honorable

William P. Smith of the 110th District Court, affirming an order issued by Associate Judge

Phil Vanderpool1 terminating the parental rights of S.M.L.’s parents and appointing the

Department of Family and Protective Services (hereinafter the “Department”) as S.M.L.’s


        1
         The role and power of an associate judge are ably described in the case of In the Interest of T.D.S.T.
and C.T., No. 07-08-0399-CV, 2009 W L 1011110, at *3 (Tex.App.–Am arillo, April 15, 2009, no pet.).
permanent sole managing conservator. In a single issue, Appellants assert the trial court

erred by either failing to appoint them as S.M.L.’s conservators or by failing to grant them

possession or access to S.M.L. We affirm.


                                               Background


        In March 2007, the Department placed S.M.L. in a foster home due to an abusive

home environment and filed an original petition for conservatorship and termination of the

parental rights of S.M.L.’s parents.2 Attached to the Department’s petition was an affidavit

by a Department caseworker, who sought an earlier emergency hearing and protective

order, describing extensive acts of domestic violence between family members resulting

in injuries to S.M.L. Following an adversary hearing, the associate judge issued an order

appointing the Department as S.M.L.’s temporary managing conservator.


        On January 10, 2008, the associate judge issued an order authorizing placement

of S.M.L. with Appellants. The order further provided that the Department would continue

serving as S.M.L.’s temporary sole managing conservator. The order also prohibited any

access, communication, or contact between S.M.L. and his parents, except under the

direct supervision and monitoring of the Department.




        2
        The petition for term ination was filed in cause num ber 9918, in the 110 th D istrict Court in and for
Floyd County, Texas. The Departm ent and S.M.L.’s parents were the only parties to the suit.

                                                      2
        On January 31, a final hearing was held on the Department’s petition. All parties,

including an attorney and guardian ad litem for the child, appeared and announced ready.

At that hearing, the Department presented irrevocable affidavits executed by S.M.L.’s

parents voluntarily relinquishing their parental rights and consenting to the appointment of

the Department as S.M.L.’s sole managing conservator. Jametra Hill, a Department

caseworker, recommended the affidavits be accepted, the parental rights be terminated,

and that S.M.L. remain placed with his maternal grandparents under the supervision of the

Department.3 Hill also indicated the Department would oversee the adoption process

applicable to Appellants. S.M.L.’s guardian ad litem agreed that the parental rights of

S.M.L.’s parents should be terminated and, in the event S.M.L.’s maternal grandparents

were not the ultimate adoptive parents, that S.M.L. be placed for adoption by a non-

relative. The associate judge then found the evidence sufficient, terminated the parental

rights of S.M.L.’s parents, and appointed the Department permanent sole managing

conservator of S.M.L. An order reflecting the associate judge’s judgment was signed on

March 5, 2008, and filed on March 10, 2008.4 Pursuant to that order, the Department

continued S.M.L.’s placement with Appellants.


        Subsequent to the associate judge’s oral pronouncement of judgment, but prior to

the entry of a written order, a Department employee observed Appellants permitting


        3
        An open adoption agreem ent entered into between S.M.L.’s parents and his m aternal grandm other
which perm itted visitation between S.M.L. and his father was referenced at the hearing.

        4
        The referring court did not sign or affirm that order until January 5, 2009. See Tex. Fam . Code Ann.
§ 201.013(b) (Vernon 2008).

                                                     3
contact between S.M.L. and his parents in violation of the order of January 10.5

Thereafter, at the discretion of the Department, S.M.L. was removed from Appellants’

residence and, on February 25, he was placed in a second foster home studied and

approved by the Department for adoption.


        Two days after entry of the associate judge’s written order of termination, on March

7, 2008, Appellants filed a petition to intervene in the Department’s termination suit. The

petition sought to have Appellants appointed as S.M.L.’s joint managing conservators, with

the exclusive right to designate the primary residence of the child, in addition to an order

granting Appellants possession of or access to the child.6


        On July 22, Appellants filed a first amended petition in intervention and, in addition

to previous remedies, requested adoption. On August 6, 2008, the associate judge issued

an order granting the Department’s motion to strike Appellants’ original petition in

intervention filed March 7. Thereafter, Appellants sought a de novo hearing before the

referring court.7

        5
          S.M.L.’s rem oval by the Departm ent in March 2007 was prom pted, in part, because Appellants
violated an earlier safety plan requiring that neither parent be allowed to have any contact with S.M.L. unless
supervised by the Departm ent. In that incident, Appellants had perm itted S.M.L.’s m other to take S.M.L. to
Kansas.

        6
          Although the associate judge had already term inated the parental rights of S.M.L.’s parents on
January 31, 2008, Appellants’ petition to intervene alleged that the parental rights had not been term inated.
The petition did, however, acknowledge that both parents had previously executed either an affidavit of waiver
of interest or an affidavit of relinquishm ent of parental rights.

        7
         Appellants’ request for a de novo hearing was deficient because the notice did not specify the ruling
or issues for which the de novo hearing was sought. See Tex. Fam . Code Ann. § 201.015 (b) (Vernon 2008).
Presum ably, the request, filed three days after the associate judge granted the Departm ent’s m otion to strike
Appellants’ original petition in intervention, sought to challenge that order.

                                                       4
       On August 29, 2008, S.M.L.’s new foster parents, with the Department’s consent,

filed their original petition to adopt S.M.L. in the 237th District Court in Lubbock County.

They also sought to intervene in the Department’s suit to terminate the parental rights of

S.M.L.’s parents filed in Floyd County.


       In September, the associate judge reviewed and approved a placement report

describing a permanency plan calling for S.M.L.’s adoption while continuing all previous

orders without modification. On October 14, Appellants filed a second amended original

petition in intervention in the Floyd County proceeding. On December 3, 2008, the trial

court “reheard” the Department’s termination suit. With all parties present, the trial court

implicitly overruled pending objections to jurisdiction and standing, and proceeded to hear

the merits of the case. In an order issued January 5, 2009, the trial court affirmed the

associate judge’s January 31, 2008 ruling. On January 26, 2009, Appellants filed their

notice of appeal contesting that order.


                                    Standard of Review


       A trial court has broad discretion to determine issues related to conservatorship,

visitation, and possession, see In re Doe 2, 19 S.W.3d 278, 281 (Tex. 2000); Gillespie v.

Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and the decision of the court may be reversed

only if it appears that the court abused its discretion in light of the record as a whole. Id.

A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference

to any guiding rules or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

                                              5
See In Interest of Doe, 917 S.W.2d 139, 141 (Tex.App.–Amarillo 1996, writ denied).

Furthermore, we may not reverse the trial court’s judgment simply because we might

disagree with the outcome. Rather, before a decision of the trial court may be reversed

we must conclude that the decision lacked basis in fact or law or involved a misapplication

of fact to law. In re C.R.T., 61 S.W.3d 62, 65 (Tex.App.–Amarillo 2001, pet. denied).


       When determining issues related to conservatorship or possession of and access

to the child, the best interest of the child is the primary consideration. Tex. Fam. Code

Ann. § 153.002 (Vernon 2008); See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003). In

determining the best interest of the child, the court may consider several non-exclusive

factors: (1) the desires of the child; (2) the emotional and physical needs of the child now

and in the future; (3) the emotional and physical danger to the child now and in the future;

(4) the parenting abilities of the parties seeking conservatorship; (5) the programs available

to assist those persons; (6) the plans for the child by the parties seeking conservatorship;

and (7) the stability of the home or proposed placement. Holley v. Adams, 544 S.W.2d

367, 372 (1976).


                                          Analysis


       S.M.L. was originally removed from the custody of his parents in January 2007,

because the Department had serious concerns about his safety and well-being while in

their presence. At that time, the child was placed in the home of Appellants, subject to a

written safety plan stating that Appellants would not allow the parents to have any contact

                                              6
with the child unless supervised by the Department. In March 2007, Appellants allowed

the parents to have unsupervised possession of the child.          During that period of

unsupervised possession, the mother was arrested for domestic violence against the father

and the child was once again removed by the Department.


       In September 2007, following the completion of a home study and anger

management classes, the child was again placed in Appellants’ custody. Again, Appellants

signed a safety plan agreeing to not allow the parents to have any contact with the child

unless supervised by the Department. In January 2008, by order of the court, Appellants

were specifically prohibited from allowing any “access, communication, or contact” between

S.M.L. and his parents, except under the direct supervision and monitoring of the

Department.


       After the parents stopped participating in services offered by the Department, the

decision was made to seek termination of their parental rights. Following the execution of

voluntary relinquishments of paternity, the associate judge terminated the parental rights

of the mother and father and appointed the Department as the child’s sole managing

conservator. At the time of that proceeding, the child was in Appellants’ custody and the

Department’s plan was for them to adopt the child. A short time later, Appellants were

observed allowing the parents unsupervised contact. This unauthorized contact prompted

the Department to again remove the child from Appellants’ home and place him in new

foster care.


                                            7
       In addition to hearing testimony concerning the child’s care and supervision while

in the custody of Appellants, the trial court also heard testimony concerning the child’s new

placement. A case worker testified that the child had bonded with the new placement

parents, that their care and supervision was appropriate, that the child referred to them as

“Momma” and “Daddy,” that they had initiated adoption proceedings, and that it was in the

child’s best interest that he remain in the new placement.


       Given the instances of Appellants’ failure to follow the safety plans adopted for the

child, their inability to recognize the danger presented to the child by parental contact, as

well as the prospective plans for the child, we cannot say that the trial court’s decision to

not appoint Appellants as managing conservators or to order possession or access was

arbitrary, unreasonable, or without reference to any guiding rules or principles.

Accordingly, Appellants’ sole issue is overruled.


                                      CONCLUSION


       The trial court’s judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice




                                             8
