                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-12-00085-CV


IN THE INTEREST OF J.G., D.G.,
AND C.G., CHILDREN




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          FROM THE 235TH DISTRICT COURT OF COOKE COUNTY

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                                    OPINION

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                                 I. Introduction

      Appellants J.C. and C.C. appeal the trial court’s denial of their petition to

adopt three children, J.G., D.G., and C.G. Appellants contend in three issues

that the trial court abused its discretion by denying their petition, by misapplying

the best interest of the child standard, and by denying their appeal of the visiting
judge’s order. No appellee’s brief was filed in this appeal. We reverse and

remand.

                                 II. Background

      C.C. is the biological mother of the three children, but her parental rights to

the children were terminated by court order in December 2007. After C.C.’s

parental rights were terminated, the children’s great-grandparents were named

as the children’s permanent managing conservators. 1            The final order of

termination states that C.C. did not appear for trial either in person or through

counsel.

      Appellants were married on August 22, 2009.           They filed this suit for

adoption of the three children on September 22, 2010. At the time of filing, the

children had lived with Appellants for more than two years.

      Appellants both testified at the final hearing on November 23, 2011. C.C.

testified that she is married to J.C. and that she is the biological mother of J.G.,

D.G., and C.G. At the time of the final hearing, J.G. was fourteen, C.G. was

twelve, and D.G. was nine. C.C. testified that the three children had lived with

her and J.C. for at least six months before the commencement of the adoption

suit and that the three children resided with her and J.C. at the time of the final

hearing.


      1
      We refer to the children’s great-grandparents/permanent managing
conservators individually as Grandmother or Grandfather and collectively as
Grandparents. See generally Tex. R. App. P. 9.8.

                                         2
       C.C. testified that her parental rights to the three children had been

terminated by a court in 2007 and that drugs, specifically methamphetamines,

were a problem for her at the time. The parental rights of the children’s biological

father had been terminated at the same time. C.C. testified, though, that her

“whole life has changed,” that she and J.C. now regularly participate in their

church, that they teach and work with children, that she and J.C. had each been

tested for drug use at the beginning of this case, and that the results were

negative. C.C. testified that she was asking the court to grant an adoption of all

three children by Appellants and that adoption would be in the children’s best

interest. 2

       At the end of C.C.’s testimony, the trial court asked C.C. who had initiated

the suit to terminate her parental rights, and C.C. testified that she believed it to

be CPS. C.C., however, denied having received any court papers related to the

termination case, testifying that her grandparents had contacted her to say that

her rights had been terminated. But in response to another of the trial court’s

questions, C.C. also said that she had received a service plan for the CPS case.

When the trial court asked why CPS had gotten involved in her life, C.C. testified

that she had been using drugs.

       J.C. then testified and basically reiterated C.C.’s testimony, including that

he believed adoption was in the children’s best interest. At the conclusion of

       2
       C.C. also testified that she was asking the court to change the children’s
last names.

                                         3
J.C.’s testimony, the trial court expressed its opinion that C.C. had not been as

forthcoming with her testimony about the CPS case as the court had hoped she

would be and asked counsel to provide the court with the paperwork from the

termination case. Among other things, the trial court stated that “using drugs isn’t

what it takes to get CPS in your life. Using drugs and a problem with your

children is what gets CPS in your life.” The trial court later stated that it was

“going to know what went on with the children beforehand before I let this lady

who gave them up adopt them.” 3

      Several other documents were in the trial court’s file at the time of the final

hearing and are included in the clerk’s record in this appeal. Among them are

waivers of citation and consents to adoption filed by Grandmother and

Grandfather, who were still serving as the children’s permanent managing

conservators.    In those documents, Grandmother and Grandfather each

expressly consented to the children’s adoption by Appellants.

      Also within the court’s file was a report prepared by Sandy Russell, the

person the trial court had appointed as “evaluator to make and prepare a

preadoptive social study and postplacement adoptive social study to evaluate the

parties.” Russell filed her report with the trial court in January 2011, almost ten

months before the final hearing.



      3
        The documents relating to the 2007 termination case are not included
within the appellate record.

                                         4
      Russell’s report states that Grandmother “started letting the children see

their mother once [Grandmother] saw that [C.C.] was changing her life,” that

Appellants lived next door to Grandparents, and that the children had resided

with Appellants since July 2008. Russell also reported that “[a]ll three children

are in excellent health and [that] their immunizations are current.” Russell wrote

that C.C. does not work outside the home and that she is at home when the

children return from school each day. C.C. is also “very active in the church” and

“teaches a children’s class.” Russell also reported that “[a]ll of the children stated

they want this adoption very much.”

      Russell’s report also includes a favorable description of J.C. as well as

Appellants’ home environment. Among other things, Russell reported that

            [J.C.] and [C.C.] provide a good family unit for their family.
      The family is active in their church, the children’s athletic events[,]
      and watching movies together. [C.C.] considers herself to be a
      loving parent and states that the children are the most important
      people in her life. Both parents stated that the children are very well
      behaved and usually react well to verbal punishment and that they
      usually use the grounding method. The children were interviewed
      separately and all stated that they very much want the adoption.
      They love being with their mom and stated [J.C.] is [a] good dad.

             ....

             [The children] are healthy children who are glad to be reunited
      with their mom and are lucky that [Grandmother] was able to keep
      the family together and is still in their daily lives. [J.C.] loves them
      and they appear to return his affections. [J.C.] and [C.C.] are aware
      of how fast life can change and want to protect their family
      emotionally as well as financially.

             ....


                                          5
             [Grandmother] was interviewed by phone on January 7, 2011.
      [She] states that she feels that [C.C.] has turned her life around[,]
      and she sees how happy the children are on a daily basis. They
      love their mom and [J.C.] very much. She stated when the children
      were separated from their mom that they cried for her often.
      [Grandmother] stated that she made the decision to let the children
      live with their mom when she straighten[ed] her life up and became a
      responsible parent again.

             All references responded favorably and stated [J.C.] and
      [C.C.] are good parents. They are active with their children in church
      and school activities.

            ....

            All three children are very healthy children who already
      consider [J.C.] and [C.C.] as their parents. [J.C.]’s family is
      committed to [the children] and has stated that this will remain
      unchanged whether the adoption is approved or unapproved.
      Adoption is recommended.

Attached to Russell’s report are responses to questionnaires that Russell had

sent to Appellants’ four references and a letter of recommendation from

Appellants’ pastor. The letter of recommendation and each of the questionnaire

responses contain very favorable descriptions of Appellants as parents.

      On April 2, 2012, the trial court signed an order denying Appellants’

petition for adoption. The trial court’s findings of fact and conclusions of law are

dated June 6, 2012. The trial court’s findings of fact state that C.C.’s parental

rights to the children were terminated on December 14, 2007, following a suit

initiated by CPS; that Grandparents had been appointed as the children’s

permanent managing conservators; that Grandparents had permitted the children

to live with Appellants after December 14, 2007; and that Appellants had filed a


                                         6
petition for adoption of the children on September 22, 2010. The trial court’s sole

conclusion of law was that adoption of the children by Appellants “is not in the

best interest of the children.”

                                  III. Discussion

      In their first and second issues, Appellants contend that the trial court

abused its discretion by denying their petition for adoption and by misapplying

the best interest of the child standard.

A. Applicable Law

      Family code section 162.016(b) states that “[i]f the court finds that the

requirements for adoption have been met and the adoption is in the best interest

of the child, the court shall grant the adoption.”      Tex. Fam. Code Ann. §

162.016(b) (West 2008). The decision to grant or deny an adoption is within the

discretion of the trial court, and we may not set aside the decision except for

abuse of discretion. See In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); In re

D.R.L.M., 84 S.W.3d 281, 305 (Tex. App.—Fort Worth 2002, pet. denied). To

determine whether a trial court abused its discretion, we must decide whether the

trial court acted without reference to any guiding rules or principles; in other

words, we must decide whether the act was arbitrary or unreasonable. Low v.

Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835,

838–39 (Tex. 2004). Legal and factual sufficiency are not independent grounds

of error in this adoption context, but they are relevant factors in deciding whether

the trial court abused its discretion. See D.R.L.M., 84 S.W.3d at 301. For this

                                           7
analysis, we consider whether the court had sufficient information upon which to

exercise its discretion and whether it erred in its application of that discretion.

See Newell v. Newell, 349 S.W.3d 717, 720–21 (Tex. App.—Fort Worth 2011, no

pet.).

B. Analysis

         We begin by determining whether the trial court had sufficient information

upon which to exercise its discretion, and we hold that it did. In addition to

Appellants’ testimony, the trial court had each Grandparent’s waiver of citation

and consent to adoption, Russell’s report, and the attachments to Russell’s

report, all of which expressed support for Appellants’ petition to adopt the

children. This information was sufficient for the trial court to properly exercise its

discretion.

         We next address whether the trial court erred in the application of its

discretion.    Although the trial court did not base its denial of the petition for

adoption on a failure to establish the prerequisites to adoption and concluded

only that the adoption would not be in the children’s best interest, we note that it

appears that the prerequisites to adoption have been established. Family code

section 162.009 states that a child must reside with the petitioner for at least six

months before a court may grant an adoption unless the court determines that

waiver of the requirement would be in the child’s best interest. Tex. Fam. Code

Ann. § 162.009 (West 2008). Both C.C. and J.C. testified that the children had

lived with them for more than six months. Family code section 162.010 requires

                                          8
the consent of a child’s managing conservator if the managing conservator is not

the petitioner, and each of the children’s managing conservators filed their

consent to the adoption by Appellants. See id. § 162.010 (West 2008). There is

also a pre-adoptive and post-placement social study by Russell on file with the

trial court as required by family code section 162.003. See id. § 162.003 (West

2008); see also id. §§ 162.005, .007 (West 2008).

      Turning now to the trial court’s conclusion that adoption by Appellants

would not be in the children’s best interest, we note that the circumstances of this

case are quite similar to those in In re D.D.T., No. 11-04-00022-CV, 2005 WL

283579, at *1–2 (Tex. App.—Eastland Jan. 31, 2005, no pet.) (mem. op.). In

D.D.T., Jones, a single woman with four other children, sought to adopt two boys.

Id. at *1.   The boys had lived with Jones and her other children for twenty

months, and the record included a home study, a social study, a criminal

background check, and similar items.         Id.    Jones testified in support of her

petition to adopt the boys, and the trial court also asked to hear testimony by

CPS adoption specialist Sherilyn Money.            Id.   Money testified that she was

familiar with Jones and the case file, and she recommended that the trial court

grant the adoption by Jones. Id.

      The D.D.T. court summarized the next part of the adoption hearing as

follows:

             The trial court then questioned Money about the availability of
      couples who wanted to adopt children and the details surrounding
      that situation. The trial judge commented on the record that it was

                                         9
         his impression that there were “just lots and lots and lots of couples
         waiting to adopt children,” and that he was personally acquainted
         with couples who had paid as much as $25,000 or $30,000 to “adopt
         a Russian child or Chinese child.” The trial judge told Money that he
         was not “arguing with [her] assessment that Jones is an appropriate
         placement.” However, the trial judge “wonder[ed] why these children
         cannot be placed in the home [of] a couple who are able to meet the
         financial needs of these children.” Money then told the trial court
         that the children were hard to place children and that they had
         become “attached by the time the termination was done. And it
         would be very difficult to move them out of this home.”

Id. After initially stating that it would grant the adoption, the trial court changed

course and announced that the adoption would be denied. Id. at *1–2.

         Addressing Jones’s sole issue on appeal—that the trial court erred by

denying the petition for adoption “because all of the evidence was uncontroverted

and supported the adoption”—the D.D.T. court held that the trial court abused its

discretion by denying the petition for adoption. Id. at *3. In so holding, the court

wrote,

                Nothing in the 13-page clerk’s record or in the 11-page
         reporter’s record in this case supports the trial court’s decision. All
         of the evidence of record in the case was in support of Jones’s
         petition for adoption of DDT and BDT. The implied findings of fact
         are not supported by any evidence of substantive and probative
         character. Even if there were some evidence to support the implied
         findings, the implied findings are against the great weight and
         preponderance of the evidence, as outlined above; and the trial
         court abused its discretion when it denied the petition for adoption.

Id.

         Here, the Grandparents, who are also the children’s permanent managing

conservators,      supported    the   adoption;    the   court-appointed    evaluator

recommended adoption; all of Appellants’ references supported their petition for

                                           10
adoption; and the children’s attorney ad litem supported the petition for adoption.

The trial court seemed to believe that C.C. was not entirely truthful in responding

to questions about the prior parental termination case, stating that C.C. must

have been served with the suit before her parental rights had been terminated

and questioning C.C. about her past drug use. It is possible, however, that C.C.

did not understand the trial court’s question about service of process or that the

trial court misinterpreted C.C.’s answer. C.C. testified that she “wasn’t present

whenever [her] rights were terminated” and that her grandparents contacted her

to tell her that her rights had been terminated. But C.C. also testified that she

received “court papers” and that the papers told her “that [she] needed to take

some classes and different things that were ordered from CPS.” It thus appears

that C.C. received at least a service plan in the termination case.

      We as an appellate court are not free to judge the credibility of the witness

or to substitute our judgment for that of the trial court, and we do not purport to

do so by pointing out the possible misunderstanding of C.C.’s testimony. See

Owen v. Jim Allee Imports, Inc., 380 S.W.3d 276, 290 (Tex. App.—Dallas 2012,

no pet.) (“Under an abuse of discretion standard, the trial court judges the

credibility of the witnesses and may resolve any conflicting testimony.”).

However, whether C.C. misunderstood the trial court’s question or whether the

trial court misinterpreted C.C.’s answer about being served in the parental

termination case, that series of questions and answers is the only evidence that

weighs in favor of denying Appellants’ petition for adoption. Otherwise, C.C.

                                        11
acknowledged that her prior drug use led to the termination of her parental rights,

but she also testified that she had turned her life around and no longer uses

drugs.       All of the other information and evidence before the trial court

overwhelmingly weighed in favor of granting the petition for adoption. No one

opposed adoption, and the children each expressed a strong desire to be

adopted by Appellants.       We therefore hold that the trial court abused its

discretion by concluding that adoption is not in the children’s best interest

because the evidence supporting the trial court’s finding is against the great

weight and preponderance of the credible evidence contrary to the finding. See

D.D.T., 2005 WL 283579, at *3 (holding trial court’s implied findings in adoption

case against great weight and preponderance of the evidence). Thus, although

the trial court had sufficient evidence before it upon which to exercise its

discretion, the trial court erred in the application of its discretion. See id.; see

generally Newell, 349 S.W.3d at 720–21 (“In determining whether there has been

an abuse of discretion because the evidence is legally or factually insufficient to

support the trial court’s decision, we consider whether the court had sufficient

information upon which to exercise its discretion and whether it erred in its

application of that discretion.”). We therefore sustain Appellants’ first and second

issues and do not reach their third issue. 4 See Tex. R. App. P. 47.1.



         4
       Appellants’ third issue would not entitle them to any additional relief from
this court even if we sustained it.

                                        12
         We cannot, however, render judgment for Appellants because they had the

burden of proof in this adoption proceeding, and we cannot hold that they proved

as a matter of law that adoption is in the children’s best interest. The series of

questions by the trial court and answers by C.C. is some evidence, albeit

factually insufficient evidence, that adoption is not in the children’s best interest.

See D.D.T., 2005 WL 283579, at *3 (remanding for new trial because petitioner

seeking adoption bore burden of proof but did not conclusively prove elements

necessary to adopt). We therefore remand the case to the trial court for a new

trial.

                                  IV. Conclusion

         Having sustained Appellants’ first and second issues and having not

reached their third issue, we reverse the trial court’s judgment and remand the

matter for a new trial on Appellants’ petition for adoption.



                                                     ANNE GARDNER
                                                     JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.

DAUPHINOT, J., filed a dissenting opinion.

DELIVERED: September 12, 2013




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