










 
COURT OF 
APPEALS
SECOND 
DISTRICT OF TEXAS
FORT 
WORTH
 
NO. 
2-02-371-CV
 
 
IN THE INTEREST OF 
B.N.F. AND J.D.F., JR., CHILDREN
 
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FROM THE 97TH DISTRICT COURT OF 
MONTAGUE COUNTY

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OPINION

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        Appellant 
John Dehaven Fee appeals from the trial court’s order reinstating the standard 
child possession order granted to Appellee Kelly Jean Fee in their 1999 divorce 
decree.
Factual and 
Procedural Background
        Appellant 
and Appellee were divorced in 1999. The final divorce decree granted Appellant 
and Appellee joint managing conservatorship over their two children, B.N.F. and 
J.D.F., Jr. (“J.D.F.”) Appellant was granted the right to establish the 
children’s primary residence and Appellee was granted possession according to 
the standard possession order (“SPO”) of the Texas Family Code. See Tex. Fam. Code Ann. § 153.311-.317 
(Vernon 2002). Although Appellant was appointed possessory conservator, the 
children have lived with Appellant’s parents, Wayne and Patty Fee, for most of 
the time since the divorce.
        On 
January 3, 2000, Appellant filed a Petition to Modify the Parent-Child 
Relationship, asking the court to limit Appellee’s possession rights to 
supervised visitation only. Appellant claimed in a sworn affidavit that Appellee 
engaged in sexual contact with the children by touching them on the genitals. At 
the time Appellant filed his petition, B.N.F. was three and J.D.F. was two.
        Then 
in March 2000, Appellant filed a petition to terminate Appellee’s parental 
rights. Appellant’s petition included an affidavit from Darlene Hall, an agent 
of the Texas Department of Protective and Regulatory Services (“TDPRS”), who 
recommended against allowing Appellee unsupervised visits with the children. The 
court issued a temporary restraining order on March 27, 2000, that terminated 
Appellee’s visitation rights with the children until a hearing could be held 
on the matter. On May 4, 2000, the hearing was postponed and Appellee was 
awarded visitation on Tuesdays and Thursdays from 7:00 p.m. to 9:00 p.m. under 
the supervision of the TDPRS.
        Tracey 
Jennings, Guardian and Attorney Ad Litem for the children, thereafter filed a 
motion to modify the temporary orders and asked the court to exclude Appellee 
from access to the children. Jennings attached an affidavit stating, “At this 
time, I do not believe, based on information received from the children’s 
counselor, that [it] is in their best interest to continue visitation with 
[Appellee].” On June 12, 2000, the court issued a temporary restraining order 
that prohibited Appellee from exercising visitation with the children until 
further notice from the court.
        A 
custody hearing was held in August 2000, wherein the trial court heard evidence 
regarding allegations that Appellee engaged in sexual contact with the children. 
Pat Mashburn, the children’s counselor, testified that both children told her 
Appellee had sexual contact with them and that the children exhibited behavior 
consistent with children that are exposed to a sexual perpetrator. Kathy Dudley, 
a CPS caseworker, testified that both children told her Appellee touched them on 
the “tee tee.” Dudley also testified that a doctor performed a colposcope 
exam on the little girl, B.N.F., and reported that the findings did not support 
B.N.F.’s statements.
        At 
the hearing, Appellee admitted that she was convicted for the offense of sexual 
assault of a child in 1995, when she was seventeen years old. Appellee was tried 
as an adult for sexual assault, which was committed over several years as a 
minor and ended when she was fifteen. Appellee testified that she attended 
weekly counseling sessions and group counseling as required by the terms of her 
probated sentence. Appellant’s aunt and uncle, Jim and Kathy Brinkley, 
testified on Appellee’s behalf, stating that it would not concern them to have 
Appellee around their own children despite their knowledge of her criminal 
conviction. The Brinkleys, as volunteer visitation supervisors, testified that 
they observed no inappropriate behavior during the times that they supervised 
Appellee’s possession of the children.
        On October 16, 2000, the 
parties reached a settlement agreement and the trial court approved the terms. 
The approved settlement was incorporated into a court order that included the 
following pertinent provisions:
1.The 
suit for termination of the parent-child relationship between the children the 
subject of this suit and [Appellee] is to be dismissed with prejudice to the 
refiling of same concerning the factual allegations raised in that petition.

                . 
. . .
 
3.[Appellee] 
shall immediately resume standard visitation.
 
4.For 
the first six months following the entry of this Order, the standard visitation 
of [Appellee] shall be supervised by such persons and under such limitations as 
the Court might determine and further order herein.

                . 
. . .

6.Counselor 
for [Appellee], [Lawrin] Dean, shall provide counseling services to [Appellee] to assist in re-establishing 
the parent-child relationship for such time as [Lawrin] Dean directs or until 
May, 2003.
 
7.[Lawrin] 
Dean is authorized to recommend to the Court an extension of supervised 
visitation beyond the initial six month period if she deems appropriate.

        The 
court ordered supervised visitation for a period of 180 days and authorized 
Appellee to resume the standard visitation rights awarded in the divorce decree 
upon the completion of the 180-day period. The court stipulated, however, that 
“[i]n the event that [Lawrin] Dean should recommend continuation of supervised 
visitation beyond the initial six month period after the Decree entered herein, 
then in such event the Court will reconsider such extension upon due notice and 
opportunity to be heard by all parties.” A further hearing was set to 
determine whether the period of supervised visitation should continue beyond the 
period of time recommended by Dean.
        At 
the hearing, held on August 9, 2002, the court still did not have Dean’s 
recommendation as to Appellee’s visitation rights. The trial court discussed 
recessing the hearing until the court received Dean’s report but all parties 
agreed to waive their rights to a hearing and any further testimony from Dean. 
The judge ordered Dean to provide her written recommendations so the court could 
prepare its final order.
        Dean’s 
report, received in September 2002, indicates that Appellee passed a 
polygraph test with questions regarding inappropriate sexual conduct that 
covered a period of six years. Dean remarked that Appellee appeared to have a 
positive relationship with the children and noted that juvenile sex offenders 
are very different than adult sex offenders. Dean recommended unsupervised 
visitation stating,
Based 
on the fact that this sexual behavior occurred when [Appellee] was a young 
child, she has successfully completed an intensive treatment program, she has 
demonstrated significant progress in treatment and Court supervision, and the 
fact that she has had no sexual contact with anyone younger than 17 during the 
past 6 years (on probation), [i]t is my opinion, that [Appellee] does not 
present a risk to her children . . . and that she should be allowed unsupervised 
visitation with them.

Upon 
the receipt of Dean’s report, the court issued an order finding that “it is 
in the best interest of the parties and the children that [Appellee] be granted 
standard unsupervised visitation rights with the children.”
        Appellant 
appealed the trial court’s order claiming insufficiency of the evidence and 
abuse of discretion. In Appellant’s first, second, and fourth issues, he 
argues that the trial court abused its discretion when it 1) permitted Appellee 
to have unsupervised visitation, 2) granted Appellee unrestricted access to the 
children as set forth in the SPO, and 3) failed to find that the SPO was 
inappropriate when considering Appellee’s circumstances. Appellant claims in 
his third issue that the evidence is insufficient to show that Appellee’s 
visitation under the SPO adequately protects the best interest of the children. 
Both parties grouped these issues in their arguments and we will do the same.
Standard of 
Review
        Findings 
of fact and conclusions of law were not filed; this court must therefore presume 
that the trial court made all necessary findings to support its judgment. Pharo v. Chambers County, 922 S.W.2d 945, 948 (Tex. 1996). When, as in this case, a 
reporter's record is part of the appellate record, these implied findings are not 
conclusive, and an appellant may challenge them by raising both legal and 
factual sufficiency of the evidence issues. Roberson v. Robinson, 768 
S.W.2d 280, 281 (Tex. 1989). Where such issues are raised, the applicable 
standard of review is the same as that to be applied in the review of jury 
findings or a trial court's findings of fact. Id.
        Under 
an abuse of discretion standard, legal and factual insufficiencies are not 
independent grounds for asserting error, but are, rather, relevant factors in 
assessing whether the trial court abused its discretion. Beaumont Bank, N.A. 
v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); In re J.E.P., 49 S.W.3d 
380, 386 (Tex. App.—Fort Worth 2000, no pet.). For this reason, we review all 
four issues under an abuse of discretion standard.
        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, whether the act 
was arbitrary or unreasonable. See Carpenter v. Cimarron Hydrocarbons Corp., 
98 S.W.3d 682, 687 (Tex. 2002); Downer v. Aquamarine Operators, Inc., 701 
S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). An 
abuse of discretion does not occur where the trial court bases its decisions on 
conflicting evidence. Davis v. Huey, 571 S.W.2d 859, 862 (Tex. 1978); 
see also Goode v. Shoukfeh, 943 S.W.2d 441, 446 (Tex. 1997). Furthermore, an 
abuse of discretion does not occur as long as some evidence of substantive and 
probative character exists to support the trial court’s decision. Butnaru 
v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002); Holley v. Holley, 
864 S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied). Where 
the evidence supports the implied findings of fact, it is our duty to uphold the 
judgment on any theory of law applicable to the case. Worford v. Stamper, 
801 S.W.2d 108, 109 (Tex. 1990); Point Lookout W., Inc. v. Whorton, 742 
S.W.2d 277, 278 (Tex. 1987).
Discussion
        In 
this case, we must decide whether the trial court abused its discretion in 
granting Appellee visitation according to the SPO set forth in the Texas Family 
Code. See Tex. Fam. Code Ann. § 
153.311-.317. It is presumed under Texas law that the SPO “(1) provides reasonable minimum 
possession of a child for a parent named as a possessory conservator or joint 
managing conservator; and (2) is in the best interest of the child.” Id. 
§ 153.252. In ordering terms of possession that deviate from the SPO, the court 
may consider:
(1) the 
age, developmental status, circumstances, needs, and best interest of the child;
 
(2) the 
circumstances of the managing conservator and of the parent named as a 
possessory conservator; and
 
(3) any 
other relevant factor.

Id. § 153.256.

        Absent 
findings of fact and conclusions of law, we must uphold the trial court’s 
judgment if evidence supports an implied finding that it was in the best 
interest of the children to grant Appellee visitation according to the SPO. See 
Roberson, 768 S.W.2d at 281. The evidence in the case at hand is sufficient 
to support the trial court’s implied finding that Appellant did not overcome 
the presumption that the SPO was in the best interest of the children. The trial court’s judgment is 
supported by testimony from Appellant’s aunt and uncle in favor of Appellee 
and evidence that a colposcope exam performed on B.N.F. resulted in findings 
inconsistent with B.N.F.’s statements that she was sexually abused by 
Appellee. However, the strongest evidence in support of the trial court’s 
implied findings emanates from the settlement agreement reached by the parties 
in October 2000.
        As 
part of the settlement agreement approved by the court, the parties agreed that 
Dean was authorized to recommend to the court an extension of supervised 
visitation beyond the six-month period if she deemed it appropriate. And it was 
only after the court received Dean’s report that an order was issued granting 
standard unsupervised visitation rights. Dean’s recommendation to allow 
unsupervised visitation indicates that Appellee passed a polygraph test covering 
six years, successfully completed an intensive treatment program, and does not 
present a risk to the children. The trial court acted well within the scope of 
the parties’ approved settlement agreement. We hold that the trial court did 
not act arbitrarily or unreasonably in granting Appellee standard possession and 
therefore overrule issues one through four.
        Appellant 
additionally argues that even if there is sufficient evidence to meet the 
abuse-of-discretion standard, the trial court erred in granting Appellee 
standard possession because to do so violates section 153.004(c) of the Texas 
Family Code. Section 153.004(c) requires the court to consider the commission of 
family violence in determining parental possession rights. Tex. Fam. Code Ann. § 153.004(c). 
Appellant asserts that the trial court based its decision only on the risk 
Appellee presently poses and not on her past behavior as required by the Texas 
Family Code. However, testimony at the hearing regarding Appellee’s prior 
conviction, as well as Dean’s letter addressing Appellee’s past behavior, 
leads us to conclude that the trial court did consider Appellee’s past 
behavior in deciding to grant standard possession. We hold that the trial 
court’s decision to grant Appellee unsupervised standard possession did not 
violate section 153.004(c) of the Texas Family Code. Conclusion
        Having 
overruled all issues on appeal, we affirm the judgment of the trial court.  
 
                                                                  DIXON 
W. HOLMAN
                                                                  JUSTICE
 
PANEL B:   LIVINGSTON, 
DAUPHINOT, and HOLMAN, JJ.

DELIVERED: October 16, 2003
