      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-10-00604-CV



                            Roberta “Robbie” Bosworth, Appellant

                                                  v.

                                   Amanda Bosworth, Appellee


         FROM THE COUNTY COURT AT LAW NO. 4 OF WILLIAMSON COUNTY
          NO. 10-0405-CP4, HONORABLE JOHN MCMASTER, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Roberta “Robbie” Bosworth appeals the order dismissing her application for

temporary guardianship of her adult daughter, Amanda Bosworth. Appellant contends that the

dismissal is not supported by evidence and is an abuse of discretion. Finding no abuse of discretion

in the trial court’s ruling, we will affirm the dismissal of the guardianship application.

               Appellant sought to be appointed the guardian of her 27-year-old daughter,

Amanda, after Amanda left her grandmother’s home in Frisco, Texas, and traveled to Austin with

William Blair to marry him. The couple moved in with Blair’s grandparents. Appellant asserted that

her daughter was abducted by Blair and was in imminent danger, asserting that Amanda has the

mental functioning level of a seven- or eight-year-old child and cannot care for herself or manage

her financial affairs. Appellant alleged that Blair took Amanda’s personal identification documents
planning to become the representative payee of Amanda’s Social Security, disability, and Health and

Community-Based Services program payments.

               The county court at law held a hearing on appellant’s application for temporary

guardianship at which appellant, her mother, her son (Amanda’s brother), and a witness who

had provided training services to Amanda testified in appellant’s favor. Amanda also testified

and requested that the court not appoint a guardian. She provided a doctor’s report in support of

her competence. At the end of the hearing, the trial court dismissed appellant’s application to be

appointed guardian, concluding that appellant had not satisfied the requirements of Texas Probate

Code section 875.

               The probate code directs a court to appoint a temporary guardian if the “court is

presented with substantial evidence that a person may be a minor or other incapacitated person, and

the court has probable cause to believe that the person or person’s estate, or both, requires the

immediate appointment of a guardian . . . .” Tex. Prob. Code Ann. § 875(a) (West Supp. 2012). The

court must hold a hearing to determine whether “the applicant has established that there is substantial

evidence that the person is a minor or other incapacitated person, that there is imminent danger that

the physical health or safety of the respondent will be seriously impaired, or that the respondent’s

estate will be seriously damaged or dissipated unless immediate action is taken . . . .” Id. § 875(g).

               We review the court’s decision on whether to appoint a temporary guardian for

an abuse of discretion. See Saldarriaga v. Saldarriaga, 121 S.W.3d 493, 497 (Tex. App.—Austin

2003, no pet.); see also Trimble v. Texas Dep’t of Prot. & Regulatory Servs., 981 S.W.2d 211, 214

(Tex. App.—Houston [14th Dist.] 1998, no pet.). A trial court abuses its discretion when it acts in



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an unreasonable and arbitrary manner, or without reference to any guiding rules or principles.

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). We cannot substitute

our judgment for the trial court’s reasonable judgment even if we would have reached a contrary

conclusion. See Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). An abuse of discretion

does not exist where the trial court bases its decisions on conflicting evidence. Davis v. Huey,

571 S.W.2d 859, 862 (Tex. 1978) (cited in In re Guardianship of Erickson, 208 S.W.3d 737, 743

(Tex. App.—Texarkana 2006, no pet.)).

               At the hearing before the trial court, appellant and her witnesses testified uniformly

that, in their opinion, Amanda’s diminished mental capacity put her in danger. They testified that,

at best, Amanda had the mental and emotional capacity of an eight-year-old child and that her

capacity diminished under stress. They testified that she could not handle her basic needs for food

and shelter, could not consistently take necessary medications, and could not discern when she or

others needed emergency services. They testified that she was gullible, impulsive, and subject to

manipulation. They testified that she did not understand basic human physiology and sexuality, did

not understand love and marriage beyond storybook-style fantasy, and had previously engaged in

inappropriate interactions with strangers on the internet—one of which led to her being sexually

assaulted. They further testified that Amanda barely knew Blair, had not dated him, and had never

spoken of him as a boyfriend, much less as a potential husband. Appellant’s witnesses testified that

Amanda was in imminent danger because she did not know Blair and his family, would not be able

to tell if she was being mistreated, and could not seek help if she was being mistreated. Appellant

was concerned that Blair and his grandparents did not fully understand Amanda’s needs and



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could not provide a sufficiently safe environment for her. Appellant also related an interaction with

Blair’s family that she said illustrated the manipulation of her daughter. She came down to speak

with Amanda shortly after her departure and discussed returning to North Texas to collect some

belongings. Appellant testified that Blair’s grandmother overheard and said, “William, tell Amanda

good-bye, you will never see her again, she’ll be gone, her mother will have locked her up in her

room, you’ll never see her.” Appellant testified that Blair’s grandmother’s statement dissuaded

Amanda from returning even briefly to her previous home. Appellant offered medical reports

supporting her view of Amanda’s limited capacity.

               Amanda testified and presented evidence in opposition to the creation of a

guardianship. She stated plainly, “I am not in danger.” She testified that she prompted her departure

from her grandmother’s house by calling Blair to come and get her. She said she had known

Blair for five years and that she told her mother that Blair proposed a month before she left with him.

She said that her mother and grandmother were not happy at this prospect and told her she would

lose all of her benefits. She stated that she had married Blair and wished to remain with him. She

testified that she had a driver’s license but did not drive near her new home because she was

not familiar with the roads. She testified that she had called her lawyer several times in preparation

for the hearing. She demonstrated in court the ability to dial 911 in case of an emergency. She

introduced a medical report regarding the need for a guardianship from a doctor in Williamson

County who, after examining Amanda, declared that she has “no disability.”1 She met with an


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          Amanda testified that she met with two doctors, but produced only one report. Appellant
asserts that “it is reasonable to assume that only one doctor was willing to provide a doctor’s letter
suitable to Amanda’s cause.”

                                                  4
Officer Harrington from a “Crisis Intervention Team” who presented her with an opportunity to leave

her arrangement with Blair, which she declined to take.2 She testified, “Yes, I do love [my mother].

But I don’t want her to have a guardianship over me. I would like to be on my own and I will call

her. . . . I want to stay here.”

                 In ruling that appellant did not meet her burden to justify creating a guardianship

under the probate code, the trial court did not specify a particular element of section 875 that

appellant failed to prove. Appellant presented testimony from witnesses and documentary evidence

from doctors regarding Amanda’s diminished capacity, which Amanda countered with her testimony

and a doctor’s certification that she had no disability. Appellant and her witnesses testified that

Amanda’s capacity put her in danger—particularly when surrounded by unfamiliar people like Blair

and his grandparents in an unfamiliar city. Appellant testified that she felt that Amanda’s finances

were at risk because Blair and his grandparents had access to her identification documents and

financial accounts. But there was no evidence—beyond speculation—that Blair and his grandparents

had ill motives or could not meet Amanda’s needs and compensate for any lack of capacity.

Likewise, there was no evidence that the taking of the identification and financial documents was

anything other than necessary to ensure that Amanda had documents needed to marry and access her

financial resources for her benefit. Amanda testified that she was not in danger, had demonstrated

the ability to use the telephone on her own, and had been presented with opportunities to leave

Blair’s home and chose to stay. While the evidence may seem close to meeting the standard




        2
           Officer Harrington was reportedly in the hallway outside the courtroom and available to
testify, but the trial court opted not to hear his testimony.

                                                  5
from our review of the paper record, the trial court held a hearing and had opportunity to see the

witnesses and gauge their credibility first-hand. Based on the record before us, we cannot say that

the trial court abused its discretion by concluding that appellant failed to prove the necessary

elements to support her temporary guardianship application.

               We affirm.




                                             Jeff Rose, Justice

Before Justices Puryear, Rose and Goodwin

Affirmed

Filed: January 16, 2013




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