AFFIRMED and Opinion Filed April 10, 2019




                                          Court of Appeals
                                                          S      In The


                                   Fifth District of Texas at Dallas
                                                      No. 05-18-00210-CV

                         IN THE INTEREST OF A.A.E. AND J.O.E., CHILDREN

                                On Appeal from the 469th Judicial District Court
                                             Collin County, Texas
                                    Trial Court Cause No. 469-53528-2014

                                         MEMORANDUM OPINION
                               Before Justices Bridges, Partida-Kipness, and Carlyle
                                            Opinion by Justice Bridges
          Mother appeals the trial court’s final divorce decree in which the court designated Father

as primary managing conservator. In three issues, she argues she received ineffective assistance

of counsel, and the evidence is legally insufficient to support his designation as primary managing

conservator and to require her to have supervised visits with the children. We affirm the trial

court’s judgment.

                                                            Background

          The following facts are based on the few pleadings in the record and one trial court hearing

in which only Mother and Father testified.

          Father met Mother while working in Nigeria. The two married in 1996 and moved back to

the United States. They had three sons: JKE, JOE, and AAE.1



   1
       This appeal involves only two sons, AAE and JOE. JKE turned eighteen before the divorce was finalized.
       In early 2014, Mother spent approximately six months in Nigeria for family matters and

returned in July. In December 2014, the “incident,” which Mother claims started “this,” occurred.

According to Mother, when she returned to the States, she discovered JOE and AAE had been

suspended from school. Father was drinking heavily during this time and acting aggressively

towards her and the boys. She called the children’s doctor, who recommended psychological

testing for the children and family counseling. She claimed that on the way to an appointment,

Father told AAE to beat her, which he did. She testified that when they later returned home, Father

and AAE continued to beat her. She eventually called 9-1-1 and was taken to the hospital.

       Father denied Mother’s version of events and testified, “The police determined that she

was - - needed to be arrested that night.” Officers did in fact arrest Mother for domestic violence

after the hospital discharged her.

        On July 17, 2014, “after a post arrest hearing as provided by law, and after considering the

evidence,” a magistrate entered an order for emergency protection to protect Father from Mother.

On July 22, 2014, Father filed his original petition for divorce. He argued appointment of the

parents as joint managing conservators would not be in the best interest of the children because

Mother had a history of committing family violence. Attached to the petition, Father included the

July 17, 2014 order for emergency protection issued against Mother for committing family

violence.

       Mother filed her original answer on October 16, 2014. She requested joint managing

conservatorship and the exclusive right to designate the children’s primary residence and receive

child support.

       On January 30, 2015, the trial court signed temporary orders appointing Father as

temporary sole managing conservator and Mother as temporary possessory conservator of the

children. On August 19, 2016, the trial court signed a second temporary order in which Father

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remained temporary sole managing conservator and Mother continued as temporary possessory

conservator. The order required supervised visitation because of “credible evidence that [Mother]

has a history or pattern of child neglect directed against the children.” It further ordered Mother

to undergo a psychiatric evaluation within thirty days of the order and file the evaluation with the

trial court on or before October 1, 2016. Mother never completed her court-ordered psychiatric

evaluation.

       The trial court held a final hearing on May 2, 2017. The trial court signed a final divorce

decree on January 29, 2018, appointing Father as sole managing conservator and Mother as

possessory conservator with supervised visitation. The final decree incorporated the terms of the

second temporary order in which the court ordered Mother to undergo psychological evaluation.

Mother, appearing pro se, filed this appeal.

                                   Sufficiency of the Evidence

       In her first and second issues, Mother argues the evidence is legally insufficient to support

the trial court’s designation of Father as primary managing conservator and to require supervised

visitation between her and the children. Father, appearing pro se, argues the evidence is sufficient.

       Trial courts have wide discretion to determine a child’s best interest, including issues of

custody, control, possession and visitation. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.

1982); Patterson v. Brist, 236 S.W.3d 238, 239–40 (Tex. App.—Houston [1st Dist.] 2006, pet.

dism’d). Appellate courts will reverse a trial court’s determination of conservatorship only if a

review of the entire record reveals the trial court’s decision was arbitrary or unreasonable. In re

J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Patterson, 236 S.W.3d at 240. A trial court does not

abuse its discretion “as long as some evidence of a substantive and probative character exists to

support the trial court’s decision.” In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth

2005, no pet.). We view the evidence in the light most favorable to the trial court’s decision and

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indulge every legal presumption in favor of its judgment. Patterson, 236 S.W.3d at 240. The trial

court is in the best position to observe the demeanor and personalities of the parties and to evaluate

credibility, influences, and other forces that are not discernible from a cold record. Sheriff v.

Moosa, No. 05-13-01143-CV, 2015 WL 4736564, at *5 (Tex. App.—Dallas Aug. 11, 2015, no

pet.) (mem. op.); In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied). An

allegation of legal or factual insufficiency is not treated as an independent ground of error in this

context because the appropriate standard of review is abuse of discretion. Patterson, 236 S.W.3d

at 240; Hardin v. Hardin, 161 S.W.3d 14, 19 (Tex. App.—Houston [14th Dist.] 2004, no pet.).

Rather, sufficiency challenges are incorporated into an abuse of discretion determination.

Patterson, 236 S.W.3d at 240.

       “The best interest of the child shall always be the primary consideration of the court in

determining the issues of conservatorship and possession of and access to the child.” TEX. FAM.

CODE ANN. § 153.002; Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002) (reiterating legislature’s

mandate that best interest of child is primary consideration). Courts consider the Holley factors

when determining whether the appointment of a party as managing conservator is in the child’s

best interest. See In re A.C., 394 S.W.3d 633, 644 (Tex. App.—Houston [1st Dist.] 2012, no pet.).

These nonexclusive factors include the emotional and physical needs of the child now and in the

future, the emotional and physical danger to the child now and in the future, the parental abilities

of the individual seeking custody, the stability of the home or proposed placement, the acts or

omissions of the parent, which may indicate the existing parent-child relationship is not a proper

one, and any excuse for the act or omission of the parent. Holley v. Adams, 544 S.W.2d 367, 372

(Tex. 1976); Patterson, 236 S.W.3d at 240.

       In addition to the Holley factors, this Court considers the mandatory provisions in the

family code regarding conservatorship. Under the statute, the trial court is required to presume

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that the appointment of the parents as joint managing conservators is in the best interest of the

children until evidence is presented to rebut this presumption. TEX. FAM. CODE ANN. § 153.131(a),

(b). The party seeking appointment as sole managing conservator has the burden to rebut the

presumption. Id. § 153.131(b); In re K.S., 492 S.W.3d 419, 427 (Tex. App.—Houston [14th Dist.]

2016, pet. denied). If “credible evidence is presented of a history or pattern of past or present child

neglect, or physical or sexual abuse by one parent directed against the other parent, a spouse, or a

child,” the court may not appoint a parent as joint managing conservator. TEX. FAM. CODE ANN.

§ 153.004(b); In re K.S., 492 S.W.3d at 427.

       Mother argues the record does not contain any evidence she was violent because she was

ultimately acquitted of the assault family violence charges, and Father was the one who owned a

gun and committed violence against her. Father admitted the family had a lengthy history with

CPS; however, there is no evidence in the record indicating CPS ever determined he engaged in

any abuse or neglect of the children. Father denied abusing Mother. To the extent the court heard

conflicting testimony about who was the victim of family violence, the trial court, as the judge of

witness credibility, was free to disbelieve Mother’s testimony. Id.

       Further, the record contains evidence rebutting the presumption that appointment of the

parents as joint managing conservators is in the best interest of the children. The second temporary

order included a finding “that credible evidence has been presented that [MOTHER] has a history

or pattern of child neglect directed against the children.” The order also states the court heard the

motion on July 14, 2016, but the record before us does not contain a transcript from this hearing.

Where there is no reporter’s record, we assume the trial court heard sufficient evidence to make

all necessary findings in support of the order. Onkst v. Onkst, No. 03-15-00636-CV, 2017 WL

2628245, at *2 (Tex. App.—Austin June 16, 2017, no pet.) (mem. op.) (citing Hebisen v. Clear

Creek Indep. Sch. Dist., 217 S.W.3d 527, 536 (Tex. App.—Houston [14th Dist.] 2006, no pet.)).

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Thus, we must assume the trial court heard sufficient evidence to support a finding that Mother

has a history or pattern of child neglect thereby rebutting the presumption that appointing the

parents as joint managing conservators was in the children’s best interest. See TEX. FAM. CODE

ANN. § 153.131(b); see, e.g., In re K.S., 492 S.W.3d at 427. Moreover, Father testified at the final

hearing that nothing had changed resulting in Mother becoming a better parent since the second

temporary order hearing.

        Further, at the time of the final hearing, Mother had not seen JOE and AAE since her arrest

for domestic violence at the end of June 2014. During that approximate three-year time, Mother

never complied with the terms of the temporary orders requiring a psychiatric evaluation. Instead,

Mother had threatened to circumvent the order. Although she testified she had a psychiatric

evaluation in 2010 and another one in 2016 with CPS, she never completed one pursuant to the

court’s temporary orders. She repeatedly testified, “I don’t have any psychiatric problems and

there was no evidence of that.” She further claimed she did not need one because, “I know who I

am.” Mother admitted she had not paid any child support as required by the second temporary

order, “[b]ecause I know what is best for my children.” See, e.g., B.C. v. Tex. Dep’t of Family &

Protective Servs., 446 S.W.3d 869, 876 (Tex. App.—El Paso 2014, no pet.) (considering failure to

pay child support as relevant to child’s best interest); see also In re A.F.V., No. 04-17-00225-CV,

2017 WL 3270336, at *3 (Tex. App.—San Antonio August 2, 2017, no pet.) (mem. op.). Such

evidence implicates Mother’s parental abilities. Moreover, her own unwillingness to obey court

orders prevented her access to her children. Mother’s acts and omissions indicate she was not

acting in her children’s best interest.

        After reviewing the record, we conclude the evidence sufficiently supports the trial court’s

exercise of its discretion to determine that appointing Father as sole managing conservator and




                                                –6–
Mother as possessory conservator was in the best interest of the children. Mother’s first issue is

overruled.

       In her second issue, Mother argues the evidence is legally insufficient to require supervised

visitation with the children. It is a rebuttable presumption that it is not in the best interest of a

child for a parent to have unsupervised visitation with the child if credible evidence is presented

of a pattern or history of past or present child neglect or family violence by that parent or by any

person who resides in that parent’s household. See TEX. FAM. CODE ANN. § 153.004(e)(1), (2).

As explained above, we presume the record supports the trial court’s exercise of its discretion in

determining that Mother’s visits with the children should be supervised based on her history of

neglect. See Onkst, 2017 WL 2628245, at *2. Further, Father testified Mother was arrested and

charged with domestic violence. To the extent Mother argues she was acquitted of the charges,

the family code does not require a conviction for family violence in determining conservatorship

and best interest of the child. See TEX. FAM. CODE ANN. § 153.004(a), (b); see also In re V.V., 349

S.W.3d 548, 556 (Tex. App.—Houston [1st Dist.] 2010, pet. denied) (noting courts routinely

consider parent-on-parent physical abuse without specifically requiring evidence that conduct

resulted in criminal conviction when considering best interest of child).

       Father also testified that JKE had been arrested for family violence twice. At the time of

the final hearing, JKE was over eighteen, and Father believed he still lived with Mother. As such,

the trial court was presented with credible evidence of a history of family violence by a person

who resided in Mother’s household. See TEX. FAM. CODE ANN. § 153.004(e)(2). Accordingly,

Mother failed to present evidence rebutting the presumption that it was not in the children’s best

interest to have unsupervised visits with her. Id. § 153.004(e).

       To the extent Mother tries to rebut the presumption by citing to an attorney ad litem

recommendation attached to her brief, we may not consider it. The report was not evidence the

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trial court considered in making its ruling, and documents attached to briefs may not be considered

by a reviewing court because they are not part of the appellate record. See Goodman v. Melech,

No. 05-03-00188-CV, 2003 WL 22351416, at *1 (Tex. App.—Dallas Oct. 16, 2003, no pet.)

(mem. op.) (refusing to consider document attached to brief because it was not presented to trial

court); see also In re Bendtsen, 230 S.W.3d 823, 830 (Tex. App.—Dallas 2007, pet. denied).

       Accordingly, the trial court did not abuse its discretion by ordering supervised visitation.

Mother’s second issue is overruled.

                                Ineffective Assistance of Counsel

       In her third issue, Mother argues she received ineffective assistance of counsel during the

hearing because her counsel failed to disclose witnesses and documents during discovery resulting

in the trial court sustaining Father’s objections to their admissibility. The doctrine of ineffective

assistance of counsel does not extend to most civil cases, including divorce cases involving custody

issues. See Blair v. McClinton, No. 01-11-00701-CV, 2013 WL 3354649, at *2 (Tex. App.—

Houston [1st Dist.] July 2, 2013, pet. denied) (mem. op.). While the Texas Supreme Court has

recognized a constitutional right to effective counsel in parental rights termination cases, this case

does not involve the termination of parental rights. See In re M.S., 115 S.W.3d 534, 544 (Tex.

2003). Thus, this limited exception is inapplicable. See In re G.J.P., 314 S.W.3d 217, 223 (Tex.

App.—Texarkana 2010, pet. denied) (ineffective assistance of counsel claim not available in

divorce proceeding involving child custody issues). Mother’s third issue is overruled.




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                                          Conclusion

      The judgment of the trial court is affirmed.




                                                 /David L. Bridges/
                                                 DAVID L. BRIDGES
                                                 JUSTICE


180210F.P05




                                              –9–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

 IN THE INTEREST OF A.A.E. AND                       On Appeal from the 469th Judicial District
 J.O.E., CHILDREN                                    Court, Collin County, Texas
                                                     Trial Court Cause No. 469-53528-2014.
 No. 05-18-00210-CV                                  Opinion delivered by Justice Bridges.
                                                     Justices Partida-Kipness and Carlyle
                                                     participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee Michael Enge recover his costs of this appeal from
appellant Chika Enge.


Judgment entered April 10, 2019.




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