                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00150-CV

IN THE INTEREST OF A.C.-D.R., A
CHILD


                                      ----------

          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

                                      ----------

              MEMORANDUM OPINION 1 ON REHEARING

                                      ----------

      After reviewing Mother’s motion for rehearing, we deny it, but we withdraw

our opinion and judgment of October 10, 2013, and substitute the following. After

a bench trial, the trial court denied the petition of the Texas Department of Family

and Protective Services (TDFPS) to terminate the parental relationship between




      1
       See Tex. R. App. P. 47.4.
Ann 2 and her parents, A.B. (Mother) and A.R. (Father), but named TDFPS the

child’s permanent managing conservator (PMC) and Father’s brother J.R.

(Uncle) the possessory conservator. In five issues, Mother challenges the trial

court’s order appointing TDFPS as Ann’s PMC. Because we hold that the trial

court did not abuse its discretion by naming TDFPS Ann’s PMC, we affirm the

trial court’s judgment.

I. Statement of Facts

      TDFPS called two witnesses, Father and the CPS worker, and offered no

evidentiary exhibits.

      Ann was born in mid-July 2011 and was eighteen months old at trial.

According to Father, Mother had a drug problem in the year before Ann’s birth.

Mother’s drug of choice was mainly marijuana, and she used marijuana during

her pregnancy.

      Mother had a long-term seizure disorder, but according to Father, she

never took any medication for it during their relationship. Mother had at least one

seizure during her relationship with Father. Father testified that he had urged

Mother to take medication for her seizure disorder after Ann’s birth but that

Mother had resisted, telling him that Ann was her child and that she could do with

Ann whatever she wanted.

      2
       To protect A.C.-D.R.’s anonymity, we will adopt the parties’ use of Ann as
her alias. See Tex. R. App. P. 9.8(b)(2); Tex. Fam. Code Ann. § 109.002(d)
(West Supp. 2013).



                                        2
      When Ann was about three and one-half months old, Mother had a seizure

and dropped the baby carrier with Ann in it. The baby carrier hit the ground, and

Ann fell out, hitting her face on the curb and suffering injuries. Father testified

that he rode with Ann to the hospital, but Mother did not go to the hospital until

two days later. TDFPS removed Ann two days after Mother dropped her.

      Mother admitted to the CPS worker that she was not on medication when

she had a seizure and dropped Ann. Mother had still not filled her prescription

for medication for her seizures when the CPS worker last spoke to her three

weeks before trial.

      Father reported that in November 2012, about a year after Ann’s removal,

Mother and her brother interrupted a family gathering at Father’s home. Mother

yelled at Father. Her brother, who appeared to be “on something,” was violent

and exhibited threatening behavior to Ann’s grandfather and cousin. Eventually,

the police were called. When Mother visited Father the next day to apologize, he

      looked her in the eyes and sa[id], [“]Do we really need any more
      violence in our life than we already have? We lost our daughter over
      it.[”] And [Mother] kind of looked at [Father] and walked off at that
      point, and she realized that she was wrong for what happened [the
      previous day].

      In addition to failing to take prescribed medicine for her seizures, Mother

failed to complete many of the tasks on her service plan. She did not complete a

psychological evaluation, parenting classes, a batterer’s intervention program, or

substance abuse counseling, which included anger management therapy,

inpatient and outpatient treatment, and NA and AA classes. She also did not


                                        3
demonstrate an ability to maintain income or employment or provide any proof of

income. Although Mother told the CPS worker that she could not work because

of her seizure disorder, she was not receiving any SSI benefits.

      The CPS worker also testified that Mother had not obtained and

maintained safe and stable housing. For about two and one-half months before

trial, Mother had been living in an apartment with her boyfriend and his mother in

Mesquite; CPS had not visited the apartment. Mother had not indicated to the

CPS worker that the home would be an appropriate place for Ann to live; Mother

had instead indicated that she was going to be moving from that apartment.

      Mother did regularly attend visits with Ann except for a two-month period

after moving to Mesquite, and she told CPS that she lacked transportation and

money to visit from her new home during that period.         CPS then scheduled

longer visits for every other week at a McDonald’s in Mesquite, and Mother

attended them.

      Mother had also tested negative on her most recent random drug test, and

the CPS worker believed that Mother was drug-free.

      Though aware of the hearing, Mother did not attend trial. She told her

attorney that it was because she could not afford to buy gas to drive from

Mesquite to Fort Worth. The trial court noted that the date and time of trial,

January 15, 2013 at 9:30 a.m., had been set on September 27, 2012 and that the

trial court had delayed the hearing about forty-five minutes for bad weather.




                                        4
      Mother’s attorney conceded at trial that “[t]here’s best interest all over the

place to terminate [her] parent/child relationship.”

      When Ann was discharged from the hospital, she went to foster care. In

July 2012, she was placed locally with Uncle and his wife (Aunt). Like Mother,

Uncle did not attend trial.

      Father testified that he and Uncle were very close and that Uncle had

always been his protector. Father also testified that he talked to Uncle almost

every week. But despite the fact that Ann had lived with Uncle and Aunt for more

than six months by the time of trial, Father testified that he had never seen Uncle

or Aunt with Ann.

      Father understood that if the trial court terminated his rights, he would

have “nothing whatsoever to do with [Ann] anymore.” Father clarified that “it

would be up to [Uncle and Aunt] if they want[ed Mother or him] to see [Ann] at

all.” But if the trial court did not terminate the parental rights but granted only

PMC of Ann, Father understood that he would still have some input into “what

goes on with her.” Father testified that he did “[not] want to fail [his] daughter

anymore” or “to see more harm come to her.”

      Father testified that he did not sign his voluntary affidavit of relinquishment

to avoid paying child support and that child support did not factor into his

decision.   The CPS worker confirmed that neither parent had paid any child

support despite the trial court’s child support order. Father also testified that he




                                          5
did not relinquish his rights because of any promise or guarantee that Uncle and

Aunt would be able to adopt Ann.

      The CPS worker last discussed TDFPS’s plan of termination with Mother

less than three weeks before trial. Mother “understood the plan[,] and she said

she was just wanting to make sure that her son would get his last visit.” Her son,

who was eight years old at the time of trial and lived locally with his maternal

grandmother, had “come to a few” of the visits between Mother and Ann. The

caseworker admitted that the boy and Ann know each other and that they are

siblings. When asked about TDFPS’s position on separating siblings, the case

worker testified,

      A.     Normally, I would see that they’d want them together, but in
             this case [Ann] was very young in age, so, I mean, he does
             have, you know, visitations—you know, growing up with her.
             And, hopefully, you know, they’ll still be able to see each other
             growing up.

      Q.     And would you agree that termination of the parent/child
             relationship will make this eight-year-old no longer [Ann’s]
             sibling?

      A.     I understand that, yes.

      Q.     And has CPS ever been involved with [Mother] prior to [Ann’s]
             birth?

      A.     No.

      Q.     Does CPS have any concerns about [Mother] parenting this
             eight-year-old child?

      A.     Yes.




                                         6
      Q.     Have any referrals been made to the 1-800 line or
             investigations regarding [Mother] and this eight-year-old?

      A.     She’s not caring for the eight-year-old. Her mother is taking
             care of the eight-year-old.

      Q.     And do you know what city her mother lives in?

      A.     I believe it’s Keller/Fort Worth area.

      Q.     But you would agree that no referrals have been made
             regarding this eight-year-old?

      A.     Not that I’m aware of.

      ....

      Q.     Okay. And the maternal grandmother that has [Ann’s] older
             brother living with her, has she contacted the Department
             regarding placement of [Ann] in her home?

      A.     No.

      Q.     And how many times has [Mother] asked you to conduct a
             home study on her mother for possible placement?

      A.     She hasn’t.

      The CPS worker also testified about the disadvantages of permanent

managing conservatorship rather than termination:

      Q.     And do you also understand that if permanent managing
             conservatorship rather than termination is granted, that either
             parent could file a motion to modify the order down the road?

      A.     Yes.

      Q.     And do you believe that that would be in the best interest of
             [Ann]?

      A.     No.




                                          7
      Q.     Do you believe that that situation would cause a lot of litigation
             in the future for this family?

      A.     Yes.

      After TDFPS rested its case, Ann’s attorney ad litem called Aunt as a

witness. Aunt testified that Ann had been living with Aunt and Uncle for about six

months and had made substantial progress and that “[e]very part of [Aunt and

Uncle’s] family loves [Ann].” Aunt testified that she and her husband planned to

adopt Ann and raise her as their own child in the event of termination. Aunt also

testified that she and her husband were able to meet Ann’s present and future

needs. Aunt additionally testified that Ann was in no current danger and that she

and Uncle would protect Ann from any future danger “[j]ust like [they] would with

[their] own children.”

      Aunt testified that in addition to Ann, the couple’s seventeen-year-old

nephew and three-year-old daughter lived in the home, Uncle’s eight-year-old

son came every other weekend, and Aunt was seven months’ pregnant. All the

other children in the home have bonded with Ann.

      Aunt testified that she believed that adoption would provide “a more

permanent placement and future for [Ann] than . . . a permanent managing

conservator title for [Aunt and Uncle would].” On cross-examination by Mother’s

counsel, the following dialogue occurred,

      Q.     Why is it that you are wanting to adopt [Ann] as opposed to
             have permanent legal custody of her?




                                          8
      A.     Well, because we want [Ann] to feel as if she is a part of a
             family and not an adopted child that may or may not see her
             mother or father again.

                   So far this whole case has been a very big roller coaster
             and I would never want [Ann] to feel displaced. She deserves
             the world and she deserves a family that is going to be there
             for her no matter what and, you know, that her family’s going
             to be there for her Christmas, birthdays, Valentine’s Day, the
             simple small things. [Ann] deserves that.

      TDFPS’s trial counsel followed up,

      Q.     What does [Ann] call you?

      A.     Currently, right now, we have not had her call us anything
             besides—we do say uncle, but she doesn’t call us anything.
             She does walk around the house saying mommy and daddy,
             but we haven’t pushed the issue because we did not know
             what was going on until today.

                   And being her aunt and uncle, really, we did not want
             her—if she did go back to Mommy and Daddy, we did not
             want her to be confused.

Aunt acknowledged that if she and Uncle adopted Ann, she would receive no

State benefits. She testified that those benefits would not be a factor should they

adopt Ann: “We haven’t had any of that besides Medicaid so far, so I think we’re

pretty financially set since we’re still living in the same place and still got jobs.”

      In its “Petition for Protection of a Child, for Conservatorship, and for

Termination in Suit Affecting the Parent-Child Relationship,” TDFPS alleged the

following,

      14.    Permanent Conservatorship and Support of the Child

             14.1. Conservatorship



                                            9
                      14.1.1.    Pursuant to §§ 153.005 and 263.404,
                                 Texas Family Code, if the child cannot
                                 safely be reunified with either parent, but
                                 may be permanently placed with a relative
                                 or other suitable person, the Department
                                 requests that the Court appoint the person
                                 as permanent sole managing conservator
                                 of the child; if the child cannot safely be
                                 reunified with either parent or permanently
                                 placed with a relative or other suitable
                                 person, the Department requests that the
                                 Court appoint the Department             as
                                 permanent sole managing conservator of
                                 the child.

      The trial court explicitly found in the termination decree that “the

appointment of either parent as Managing Conservator would not be in the best

interest of the child because the appointment would significantly impair the child’s

physical health or emotional development,” appointed TDFPS as Ann’s PMC,

and found that appointment to be in her best interest. The trial court also ordered

that Uncle would remain the child’s possessory conservator and found that

appointment to be in her best interest.

II. Challenges to Appointment of TDFPS as PMC

      A. Procedural Challenges

      In part of her first issue, Mother complains that the trial court did not make

the mandatory finding that it would not be in Ann’s best interest to appoint her

relative or another person as PMC.

      TDFPS expressly sought the appointment of PMC in its petition

independently    of     termination   by    pleading   for   permanent   managing



                                           10
conservatorship under section 263.404 of the family code, which Mother

concedes governs the appointment of TDFPS as PMC in cases in which

termination does not occur. 3 Section 263.404 requires that the trial court find two

elements before naming TDFPS a child’s PMC without terminating the parents’

rights:

          (a) The court may render a final order appointing the department as
          managing conservator of the child without terminating the rights of
          the parent of the child if the court finds that:

                (1) appointment of a parent as managing conservator would
                not be in the best interest of the child because the
                appointment would significantly impair the child’s physical
                health or emotional development; and

                (2) it would not be in the best interest of the child to appoint a
                relative of the child or another person as managing
                conservator. 4

          The trial court explicitly found in the decree that “the appointment of either

parent as Managing Conservator would not be in the best interest of the child

because the appointment would significantly impair the child’s physical health or

emotional development.” 5 Mother raises no challenge to that finding.

          It is true that the decree contains no explicit finding concerning the trial

court’s decision to not appoint a relative as Ann’s PMC.            To the extent that


          3
          See Tex. Fam. Code Ann. § 263.404 (West 2008).
          4
          Id. § 263.404(a).
          5
          See id. § 263.404(a)(1).



                                            11
Mother argues that there is no finding that “it would not be in the best interest of

the child to appoint a relative of the child or another person as managing

conservator,” we hold that the finding is implied. 6

      B. Evidentiary Challenges

      In the remainder of her first issue and her second and third issues, Mother

contends that the evidence does not support the appointment of TDFPS as PMC

and that the evidence is legally and factually insufficient to support the implicit

finding that a relative placement is not in the child’s best interest. As we have

previously explained,

      The burden of proof in conservatorship cases, as opposed to
      termination cases, is a preponderance of the evidence. The
      standard of review in conservatorship cases is abuse of discretion.
      The trial court has wide latitude in determining the best interests of a
      minor child. We will reverse the judgment of the trial court only when

      6
        See Ruiz v. Ruiz, No. 02-12-00136-CV, 2013 WL 530958, at *4 (Tex.
App.—Fort Worth Feb. 14, 2013, no pet.) (mem. op.) (holding trial court did not
abuse its discretion by denying appellant full extended possession after implicitly
finding that it was not in child’s best interest and citing Celestine v. Dep’t of
Family & Protective Servs., 321 S.W.3d 222, 234 (Tex. App.—Houston [1st Dist.]
2010, no pet.) (holding that trial court made an implicit finding that waiver of
section 162.009’s six-month residency requirement was not in the children’s best
interest); and In re C.R.T., 61 S.W.3d 62, 67 (Tex. App.—Amarillo 2001, pet.
denied) (holding that evidence warranted trial court’s implicit finding that
presumption was rebutted such that conservatorship with parent would not be in
children’s best interest)); see also In re C.B., No. 13–11–00472–CV, 2012 WL
3139866, at *5 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.)
(holding that trial court did not abuse its discretion by implicitly finding that it was
not in C.B.’s best interest to relocate to New Mexico with father; substantive and
probative evidence demonstrated it was in C.B.’s best interest to remain in
mother’s custody because mother maintained a safe and healthy home that was
free of sexual abuse).



                                          12
      it appears from the record as a whole that the court has abused its
      discretion. A trial court abuses its discretion if it acts arbitrarily and
      unreasonably or without reference to guiding principles. An abuse of
      discretion does not occur as to factual matters as long as some
      evidence of a substantive and probative character exists to support
      the trial court’s decision. Legal and factual sufficiency are not
      independent grounds for review in conservatorship cases, but they
      are relevant factors in deciding whether an abuse of discretion
      occurred. 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 engage in a two-pronged
      inquiry: (1) Did the trial court have enough information upon which
      to exercise its discretion; and (2) did the trial court err in applying its
      discretion? The traditional sufficiency review comes into play with
      regard to the first question. With regard to the second question, we
      determine, based on the elicited evidence, whether the trial court
      made a reasonable decision.

            The trial court did not file any separate findings of fact and
      conclusions of law supporting its ultimate conservatorship finding in
      the decree. When no findings of fact or conclusions of law are filed
      in a bench trial, the trial court’s judgment implies all findings of fact
      necessary to support it, but these implied findings are not
      conclusive. An appellant may challenge them by raising both legal
      and factual sufficiency of the evidence points. 7

      Consequently, we will treat the remainder of Mother’s first issue and her

second and third issues as complaints that the trial court abused its discretion by

appointing TDFPS, and not a relative, as the child’s PMC.

      Subsection (b) of section 263.404 of the family code provides that in

deciding whether to appoint TDFPS as the child’s PMC, the trial court shall

consider the following factors:


      7
        In re W.M., 172 S.W.3d 718, 724–25 (Tex. App.—Fort Worth 2005, no
pet.) (citations omitted).



                                          13
      (1) that the child will reach 18 years of age in not less than three
      years;

      (2) that the child is 12 years of age or older and has expressed a
      strong desire against termination or being adopted;

      (3) that the child has special medical or behavioral needs that make
      adoption of the child unlikely; and

      (4) the needs and desires of the child. 8

      Limiting ourselves to the evidence admitted at trial, we see that the only

relevant factor is (4), the child’s needs and desires. But as we have explained

before,

      [a] court’s primary consideration in any conservatorship case shall
      always be the best interest of the child. Courts may use the
      nonexhaustive list of Holley factors to determine the child’s best
      interest. Those factors include:

      (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 parental abilities of the individuals seeking custody;

      (5) the programs available to assist these individuals to promote the
      best interest of the child;

      (6) the plans for the child by these individuals or by the agency
      seeking custody;

      (7) the stability of the home or proposed placement;


      8
          Tex. Fam. Code Ann. § 263.404(b).



                                         14
       (8) the acts or omissions of the parent (or potential conservator)
       which may indicate that the existing . . . relationship is not a proper
       one; and

       (9) any excuse for the acts or omissions of the (potential
       conservator).

       These factors are not exhaustive; some listed factors may be
       inapplicable to some cases; other factors not on the list may also be
       considered when appropriate. 9

       While there was certainly favorable evidence in support of naming Uncle

and Aunt Ann’s PMCs, there was also evidence supporting the trial court’s

decision.

       Uncle and Aunt had never seen Ann before she was placed in foster care.

Father asked them to consider taking custody of her. Even though he testified

that Uncle and Aunt were good caregivers for Ann and that Aunt is “really good

with” her, he also admitted that he had never observed Ann in their care. Uncle

did not appear or testify at trial.

       Ann has a half-brother. While it is not clear from the admitted evidence

whether Ann and her older half-brother ever lived in the same home, Ann had an

ongoing relationship with him.        At trial, he lived locally with their maternal

grandmother, who had not been evaluated by CPS as a potential conservator of

Ann.   While Aunt and Uncle as PMCs would have no legal responsibility to

maintain Ann’s relationship with her half-brother absent further court involvement,


       9
       W.M., 172 S.W.3d at 725–26 (citations omitted).



                                          15
TDFPS must provide for frequent visitation or other ongoing interaction between

siblings, unless

      (1) the court has ordered otherwise; or

      (2) [T]DFPS has determined and documented in the child service
      plan that frequent visitation or other ongoing interaction would be
      contrary to the safety or well-being of any of the siblings and the
      court has not ordered that visitation or contact between the siblings
      occur. 10

      Thus, by naming TDFPS Ann’s PMC, the trial court addressed the concern

that Mother expressed for her children’s relationship before trial.

      Further, Aunt became pregnant around the time that Ann moved in with the

couple, which means the trial court could foresee that within two to three months

of trial, Aunt and Uncle would be providing emotional and financial support to

three children under the age of four years, an eight-year-old, and a teenage

nephew.

      While the trial court did not hear evidence about the details of the couple’s

finances, it is clear that the couple is not independently wealthy, as evidenced by

Aunt’s testimony that she and Uncle are “pretty financially set since [they’re] still

living in the same place and still got jobs.” The evidence also indicated that

Mother and Father had never paid child support for Ann, and there was no

evidence that either intended to pay child support in the future. With the trial

      10
        40 Tex. Admin. Code § 749.1327 (2013) (Tex. Dep’t of Fam. & Protective
Servs., What Are DFPS’s Responsibilities To Siblings Who Are Not Placed
Together Following A Removal from the Home?).



                                         16
court appointing TDFPS as Ann’s PMC, Aunt and Uncle may continue to receive

the Medicaid health insurance benefits for Ann that they were receiving at the

time of trial. 11 Further, if they meet eligibility requirements, they may receive

reimbursement of all child-care expenses for Ann until she reaches the age of

thirteen years old; had they been named PMCs instead of TDFPS, they would

receive reimbursement of only fifty percent of those expenses if they met

eligibility requirements. 12

       Additionally, had Uncle and Aunt been named PMCs, the CPS worker

believed that this family would face “a lot of litigation in the future.” Mother’s

appeal and motion for rehearing evince this prediction. While the parents could

file a petition to modify the PMC status of TDFPS, legal counsel employed by the

State of Texas or a subdivision thereof would defend TDFPS in that scenario. 13

Aunt and Uncle would face no obligatory legal costs in such a battle. The entire

financial responsibility of defending against Ann’s removal from their family in a

private suit, however, would have rested with Uncle and Aunt.

       Finally, by naming TDFPS Ann’s PMC and not otherwise limiting parental

contact in the order, the trial court ensured that Mother and Ann may continue to

       11
       See id. §§ 700.315–.316 (Foster Care Assistance and General Eligibility
Requirements for Foster Care Assistance), .1001–.1017 (Relative and Other
Designated Caregiver Program).
       12
        See Tex. Fam. Code Ann. § 264.755(c)(4)–(5) (West Supp. 2013).
       13
        See id. § 264.009 (West 2008).



                                         17
“maintain regular contact with each other” absent further court order restricting

such contact. 14

      We acknowledge that the trial court was faced with conflicting evidence

and policies. Had the trial court appointed Uncle and Aunt as Ann’s PMCs, we

could not have concluded that the trial court abused its discretion. We also

acknowledge that none of the competing parties was a clear winner in the trial

court—the parents’ rights were not terminated, but Ann was also not returned to

their care. In conservatorship cases, however, it is not the parties’ wishes but the

child’s best interest that trumps all other considerations. 15     Given that the

appointment of TDFPS as Ann’s PMC (1) legally maintains her relationship with

and access to her half-brother, (2) allows the maternal grandmother to be

evaluated by TDFPS as a potential conservator for Ann, (3) can relieve Aunt and

Uncle from some of the financial burden of raising Ann, (4) can shield them from

potential litigation costs; and (5) ensures that Ann continue to have regular

contact with Mother absent further court order, and given that there is “some


      14
          See Tex. Dep’t of Family and Protective Servs., Child Protective Services
Handbook, § 6414.4—Contact Between the Parent, the Child in Care, and the
DFPS                     Caseworker,                  available                  at
http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS_pg_6400.asp#CPS_6414
_4, (last visited Nov. 26, 2013), id. § 6415—Maintaining Contact Between the
Family            and           the          Child,           available          at
http://www.dfps.state.tx.us/handbooks/CPS/Files/CPS pg 6400.asp#CPS 6415,
(last visited Nov. 26, 2013).
      15
        See Tex. Fam. Code Ann. § 153.002 (West 2008).



                                        18
evidence of a substantive and probative character” supporting the trial court’s

decision, we cannot conclude that the trial court abused its discretion by leaving

Ann in the home of Uncle and Aunt but appointing TDFPS as her PMC. We

overrule the remainder of Mother’s first issue and her second and third issues.

III. Challenges to Endangerment Findings

      In her fourth and fifth issues, Mother contends that the evidence is factually

insufficient to support the endangerment findings.        The trial court denied

termination, however, and those findings have no bearing on the trial court’s

conservatorship determination, which we have already upheld. 16 We overrule

Mother’s fourth and fifth issues.

IV. Conclusion

      Having overruled Mother’s five issues, we affirm the trial court’s judgment.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: DAUPHINOT, MCCOY, and MEIER, JJ.

DELIVERED: November 27, 2013



      16
       See In re J.P., No. 02-10-00448-CV, 2012 WL 579481, at *10 (Tex.
App.—Feb. 23, 2012, no pet.) (mem. op. on reh’g); In re C.T.E., 95 S.W.3d 462,
469 (Tex. App.—Houston [1st Dist.] 2002, pet. denied); see also Tex. R. App. P.
47.1.



                                        19
