                                         NO. 12-18-00243-CV

                               IN THE COURT OF APPEALS

                  TWELFTH COURT OF APPEALS DISTRICT

                                             TYLER, TEXAS

 IN THE INTEREST OF                                          §        APPEAL FROM THE

 M.M. AND J.M.,                                              §        COUNTY COURT AT LAW NO. 2

 CHILDREN                                                    §        ANGELINA COUNTY, TEXAS

                                         MEMORANDUM OPINION
         C.M. appeals the trial court’s final order in a suit affecting the parent-child relationship.
On appeal, she contests the appointment of the maternal grandmother, H.M., as managing
conservator for her children. We affirm.


                                                   BACKGROUND
         C.M. is the mother of M.M. and J.M. The fathers of the children are not parties to this
appeal. 1 On January 14, 2016, the Department of Family and Protective Services (the Department)
filed an original petition for protection of the children, for conservatorship, and for termination of
C.M.’s parental rights. The Department was appointed temporary managing conservator of the
children, and C.M. was appointed temporary possessory conservator with limited rights and duties.
         Following a bench trial, the court rendered an order appointing H.M., the children’s
maternal grandmother, as the permanent managing conservator of M.M. and J.M., and C.M. as the
possessory conservator of the children. C.M. was granted weekly supervised visitation and ordered
to pay child support in the amount of $200.00 per month. This appeal followed.




         1
           On December 8, 2011, the district court of Trinity County found that the father of M.M., M.M.M., executed
an unrevoked or irrevocable affidavit of relinquishment of parental rights and that termination of the parent-child
relationship was in the best interest of the child. Therefore, the trial court ordered that the parent-child relationship
between M.M.M. and M.M. be terminated. The father of J.M., H.H., died on April 20, 2016.
                                       STANDARD OF REVIEW
        A court’s order on conservatorship and child support issues will not be disturbed on appeal
unless the complaining party can show a clear abuse of discretion. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990); see also In re J.D.D., 242 S.W.3d 916, 919 (Tex. App.—Dallas
2008, pet. denied) (trial court has broad discretion on child support issues); In re J.A.J., 243
S.W.3d 611, 616 (Tex. 2007) (conservatorship determinations subject to review for abuse of
discretion). A trial court abuses its discretion when it acts in an arbitrary and unreasonable manner
or when it acts without reference to any guiding rules or principles. In re J.D.D., 242 S.W.3d at
920 (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
        In family law cases, legal and factual insufficiency are not independent grounds of error
but are relevant factors of our assessment of whether the trial court abused its discretion. Watson
v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort Worth 2009, no pet.). To determine 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) whether the trial court
had sufficient evidence upon which to exercise its discretion, and (2) whether the trial court erred
in its application of that discretion. Id. at 522–23. The traditional sufficiency inquiry applies to the
first question. Knight v. Knight, 131 S.W.3d 535, 539 (Tex. App.—El Paso 2004, no pet.). Once
we have determined whether sufficient evidence exists, we must then decide whether the trial court
made a reasonable decision. Id. In other words, we must conclude that the ruling was neither
arbitrary nor unreasonable. Id. In the absence of such a clear abuse of discretion, an appellate court
should not substitute its judgment for that of the trial court. In re M.L.W., 358 S.W.3d 772, 774
(Tex. App.—Texarkana 2012, no pet.); see also City of Keller v. Wilson, 168 S.W.3d 802, 822
(Tex. 2005) (“A reviewing court cannot substitute its judgment for the trier-of-fact, so long as the
evidence falls within [the] zone of reasonable disagreement.”).


                                    MANAGING CONSERVATOR
        In her sole issue, C.M. argues that the evidence is legally and factually insufficient to
establish that appointment of her as managing conservator of the children would not be in their
best interest because the appointment would significantly impair their physical health or emotional
development.




                                                   2
Applicable Law
       A trial court must appoint a child’s parents to be joint managing conservators, or one parent
as the sole managing conservator, unless it concludes that “appointment of the parent or parents
would not be in the best interest of the child because the appointment would significantly impair
the child’s physical health or emotional development.” TEX. FAM. CODE ANN. § 153.131(a) (West
2014). It is a rebuttable presumption that the appointment of the parents of a child as joint
managing conservators is in the best interest of the child. Id. § 153.131(b) (West 2014). As
evidence to rebut the parental presumption, the Department is required to show specific acts or
omissions by C.M. that support a logical inference that some specific, identifiable behavior or
conduct of hers will probably result in harm to the children. See Lewelling v. Lewelling, 796
S.W.2d 164, 167 (Tex. 1990). Consequently, there must be direct evidence that placement of M.M.
and J.M. with C.M. would significantly impair M.M.’s and J.M.’s physical health or emotional
development or that allows the fact finder to reasonably reach that conclusion. See In re De La
Pena, 999 S.W.2d 521, 528 (Tex. App.—El Paso 1999, no pet.). The focus is on the effect of the
placement, not on the circumstances that produced the placement. In re R.T.K., 324 S.W.3d 896,
902 (Tex. App.–Houston [14th Dist.] 2010, pet. denied).
       In conservatorship issues, the court’s primary consideration always is the child’s best
interest. TEX. FAM. CODE ANN. § 153.002 (West 2014). In analyzing the best interest of a child,
we use the Holley factors as a guide, which include, but are not limited to, (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) the acts or omissions of the parent that may
indicate that the existing parent-child relationship is not a proper one, and (9) any excuse for the
acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976).
The Evidence
       At trial, the evidence showed C.M.’s history with the Department and alleged physical and
mental abuse of the children. The material time to consider is the present; evidence of past
misconduct may not, by itself, be sufficient to show present parental unfitness as required to
appoint a nonparent as conservator over a parent. In re S.T., 508 S.W.3d 482, 492 (Tex. App.—



                                                 3
Fort Worth 2015, no pet.); In re S.W.H., 72 S.W.3d 772, 778 (Tex. App.—Fort Worth 2002, no
pet.). However, evidence of a parent’s “blameworthy prior behavior,” by itself, may be sufficient
to overcome the presumption in some cases. In re R.T.K., 324 S.W.3d at 902. In other words, “an
adult’s future conduct may be somewhat determined by recent past conduct.” In re L.D.F., 445
S.W.3d 823, 830 (Tex. App.—El Paso 2014, no pet.). More specifically, a court may not appoint
a parent as a managing conservator if credible evidence is presented of a history or pattern of past
or present child neglect, or physical abuse by one parent directed against the other parent, a spouse,
or a child. See TEX. FAM. CODE ANN. § 153.004 (b) (West Supp. 2018); In re K.S., 492 S.W.3d
419, 427 (Tex. App.—Houston [14th Dist.] 2016, pet. denied).
        Here, the evidence showed that beginning in December 2014, the Department received six
intakes involving C.M., H.H. (J.M.’s father), M.M., and J.M. The allegations included physical
abuse of M.M. by C.M.; physical abuse and neglectful supervision of M.M. by C.M. and H.H.;
physical abuse of J.M. by H.H.; neglectful supervision of M.M. by C.M. and H.H.; physical abuse
and neglectful supervision of M.M and J.M. by C.M. and H.H.; and finally, physical neglect,
medical neglect, and neglectful supervision of M.M. and J.M. by C.M. and H.H. One allegation,
that H.H. slapped a two-year old, J.M., resulted in a criminal investigation. C.M. admitted that she
allowed H.H. to remain in the house even after he had been charged with injury to a child and
assault. She also admitted that M.M. was scared because she and H.H. fought, yelled, and
screamed.
        According to the counselors and the Department caseworker, C.M. did not believe she had
much, if any, responsibility for the actions of H.H. towards herself or her children. Nor did she
seem to be able to protect the children from exposing them to domestic violence. The Department
investigator stated that C.M. appeared to put H.H. over her children and their safety, security, and
wellbeing. H.M., C.M.’s mother, testified regarding three incidents before January 2016, in which
she believed M.M. had been abused by C.M., including allegedly slamming his head in a mirror,
punching him in the head, and choking him. This evidence of C.M.’s prior behavior, by itself, is
sufficient to overcome the parental presumption in this case. See In re R.T.K., 324 S.W.3d at 902.
This likewise is credible evidence of a history or pattern of past or present child neglect, or physical
abuse by one parent directed against the other parent or a child. See TEX. FAM. CODE ANN. §
153.004 (b); In re K.S., 492 S.W.3d at 427.




                                                   4
       Further, the Department must show direct evidence that placement of M.M. and J.M. with
C.M. would significantly impair M.M.’s and J.M.’s physical health or emotional development or
that allows the fact finder to reasonably reach that conclusion. In re De La Pena, 999 S.W.2d at
528. Acts or omissions that constitute significant impairment include, but are not limited to,
physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior by the
parent. In re S.T., 508 S.W.3d at 492. Other considerations may include parental irresponsibility,
a history of mental disorders and suicidal thoughts, frequent moves, bad judgment, child
abandonment, and an unstable, disorganized, and chaotic lifestyle that has put and will continue to
put the child at risk. Id. The link between the parent’s conduct and harm to the child may not
be based on evidence that merely raises a surmise or speculation of possible harm. Id. at 492-
93. We may also use the Holley factors as a guide. See Holley, 544 S.W.2d at 371-72.
       The evidence at trial showed that the children came to live with H.M. after the children
were removed from C.M. and H.H. in January 2016. H.M. described them as “horrible.” J.M. had
just turned three years old, could curse like an adult, and knew the context of those curse words.
Both children had tempers and threw objects, kicked, screamed, hit, bit, and scratched. H.M. stated
the children’s environment with C.M. consisted of a lot of hollering, screaming, pushing, and
cursing. H.M. placed the children in counseling and their behavior improved. However, after the
children began regular visitations with C.M., their behavior steadily worsened. In February 2017,
C.M. was awarded unsupervised visitation every other weekend, and the children’s behavior again
worsened. H.M. again began to see behaviors such as throwing items, not listening, and more back-
talking.
       On May 26, 2017, the trial court ordered a monitored return of the children to C.M. During
this time, the children were “kicked out” of two day cares within a week of beginning each day
care. The children’s behaviors included J.M. punching another child in the mouth and threatening
to kill the teacher with C.M.’s knife; M.M. refusing to mind; and J.M. hitting another child and
the teacher. Then, C.M. lost her job and the children were unable to attend day care. Jennifer
Parker, the Department’s caseworker, stated that C.M. had problems with transportation and
communication. C.M. also spanked M.M. even though the Department’s rules did not allow
corporal punishment. According to Parker, C.M. allowed men around the children even though
they had not been approved by the Department, another violation of the rules. She also wanted a
“taxi driver” to be allowed to pick up the children from school without prior approval, and



                                                5
advertised for a babysitter for the children without prior approval. Jennifer Cumbie, the CASA
advocate, stated that she visited C.M.’s house during the monitored return. She believed that C.M.
displayed a high level of frustration and the house was in disarray. She was concerned that C.M.
could not provide the children with a nurturing, loving, and stable home.
       On October 23, 2017, an Department investigator testified that she received an intake
regarding physical abuse of M.M. by C.M. The investigator stated that M.M. told her that C.M. hit
him in the back with a plastic mixing spoon, leaving a clear, bruising mark above M.M.’s buttocks
and showing the outline of the circular part of the spoon. C.M. denied the incident. The children
were removed from C.M.’s house and returned to H.M.’s house. Parker stated that after the
monitored return failed, M.M. said that C.M. yelled, screamed, and pushed him, while J.M.
described C.M.’s house as “angry.” M.M. told Parker that he was scared of, and did not feel safe
with, C.M. and that her meltdowns were worse than his. When the children were returned to H.M.
after the monitored return failed, H.M. said that certain behaviors were worse, i.e., throwing fits
and tearing up the house when they got mad. The next to the last visitation with C.M. before trial,
H.M. stated that it had been almost a month since C.M.’s last visitation. After that visit, she said
that she “had a week of terror.”
       Two licensed professional counselors also testified. C.M.’s counselor testified that she saw
small changes in C.M., but that her perspective of the case has not changed. She said that C.M.’s
perspective actually deteriorated since 2016. The counselor has not seen C.M. shift from focusing
and fighting the system to deciding to become a better parent and using all her resources to do so.
C.M.’s focus appears to be her mother, H.M., and that the Department and her mother are not
supportive. C.M. told her counselor that, at times, she felt overwhelmed by the children’s behavior.
According to the counselor, C.M. accepted some responsibility for the children’s environment.
The children’s counselor testified that life had been tough for them and they exhibited anger,
confusion, and anxiety. M.M. has trust issues and has been “emotionally bruised” from his
experiences. Both children told the counselor that they could see themselves returning to live with
C.M. “if she would change.” However, M.M. did not believe that she would change. The children
described C.M. as unpredictable and that there was no way to know what to expect from her.
       According to C.M., M.M. was manipulative and wanted to live with H.M. because of her
more lax rules. She also stated that he lied about being hit with the plastic mixing spoon. Regarding
the unapproved men that she allowed contact with the children, she did not believe it was important



                                                 6
that they be approved or that their background was important unless they were on illegal drugs or
had a domestic violence criminal history. Even though she knew that the second man had a
criminal history, she still allowed him to be around the children without prior approval by the
Department.
       Parker stated that she had not seen a desire from C.M. to address the issues that led to the
failed monitored return. She did not believe C.M. accepted the responsibility of being a parent or
recognized how to protect the children from future abuse. Nor did she provide the children with
safe, stable housing. Cumbie believed that returning the children to C.M. would be dangerous and
harmful to the children’s physical health and emotional development. She also believed that the
children’s emotional development had already been compromised. H.M. testified that she had not
seen a change in C.M. throughout the case and stated that C.M. still does not admit that she has
done anything wrong. H.M. said that M.M. still talked about C.M.’s anger and J.M. described
C.M.’s house as angry.
Conclusion
       Because there was credible evidence of a history or pattern of past or present child neglect,
or physical abuse by one parent directed against the other parent or a child, the trial court was not
allowed to appoint C.M. as a managing conservator. See TEX. FAM. CODE ANN. § 153.004 (b); In
re K.S., 492 S.W.3d at 427. Moreover, the evidence of C.M.’s prior behavior, by itself, is sufficient
to overcome the parental presumption in this case. See In re R.T.K., 324 S.W.3d at 902.
       After reviewing the record, the evidence shows that C.M. bore little responsibility for the
reasons for the children being in the care of the Department; that she allowed H.H. to return to the
house even after being charged with injury to a child and assault; that her house was chaotic and
in disarray; that the children described her house as “angry” and that they were scared of her and
did not feel safe with her; that their behavior deteriorated after any contact with her; and that she
hit or spanked the children during the monitored return in violation of the Department’s rules.
Moreover, the trial court could have determined that C.M.’s focus was not on becoming a better
parent; that she was not protective of the children, allowing them contact with men who had not
been approved by the Department; and that she could not provide the children with a nurturing,
loving, and stable home. From this evidence, the trial court could determine that separating the
children from H.M. would significantly impair the children’s emotional development and result in
emotional harm. Accordingly, we conclude the trial court did not abuse its discretion by finding



                                                 7
that the appointment of C.M. as managing conservator was not in the children’s best interest
because it would significantly impair their physical health and emotional development. We
overrule C.M.’s sole issue.


                                                  DISPOSITION
         Having overruled C.M.’s sole issue, we affirm the judgment of the trial court.

                                                                JAMES T. WORTHEN
                                                                   Chief Justice

Opinion delivered March 5, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                          8
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                            MARCH 5, 2019


                                         NO. 12-18-00243-CV


                   IN THE INTEREST OF M.M. AND J.M., CHILDREN


                            Appeal from the County Court at Law No. 2
                     of Angelina County, Texas (Tr.Ct.No. CV-00023-16-01)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that this decision be certified to the court below
for observance.
                    James T. Worthen, Chief Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
