                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-16-00431-CV


IN THE INTEREST OF B.C., A
CHILD




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         FROM THE 362ND DISTRICT COURT OF DENTON COUNTY
                    TRIAL COURT NO. 16-05188-362

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                       MEMORANDUM OPINION1

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     In this restricted appeal, Appellant M.M. (Mother) challenges the trial

court’s default judgment in the underlying suit affecting the parent-child




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      See Tex. R. App. P. 47.4.
relationship (SAPCR). Because Mother has failed to present an error that is

apparent from the face of the record, we affirm.

                                   I. BACKGROUND

      On June 30, 2016, P.T. (Grandmother) filed an original SAPCR seeking to

be appointed as the sole managing conservator of B.C., who, according to the

petition, was eighteen months old. The petition alleged that B.C. was the child of

H.C. (Father) and Mother. The petition further alleged that Grandmother had

standing to file the SAPCR because she had had care, custody, and control over

B.C. for the requisite period required by the family code. See Tex. Fam. Code

Ann. § 102.003(9) (West Supp. 2016) (conferring standing to file an original

SAPCR upon “a person, other than a foster parent, who has had actual care,

control, and possession of the child for at least six months ending not more than

90 days preceding the date of the filing of the petition”). With regard to the issue

of conservatorship over B.C., Grandmother’s petition alleged as follows:

      The appointment of the parents as joint managing conservators
      would not be in the best interest of [B.C.]. The appointment of the
      parents as joint managing conservators will impair the emotional
      welfare and physical well-being of [B.C.]. It is in the best interest of
      [B.C.] that [Grandmother] be appointed sole managing conservator
      of [B.C.].

             [Father and Mother] have a history or pattern of child neglect
      directed against [B.C.]. [Grandmother] requests that the Court
      render a possession order that provides that [Father and Mother’s]
      periods of visitation be continuously supervised by an entity or
      person chosen by the Court.




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      Mother was served with the suit on July 11, 2016, and Father filed a waiver

of service on July 29, 2016. Neither Father nor Mother filed an answer. The trial

court called the case on August 8, 2016, and it entered its final order the same

day. The order reflects that Mother, “although duly and properly notified, did not

appear and wholly made default.” The order also reflects that Father had waived

issuance and service of citation and that he agreed to the terms of the final order,

as evidenced by his signature indicating that he approved the order “as to form

and content.”   The order states that a record of the testimony was waived.

Finding that it was in B.C.’s best interest, the trial court appointed Grandmother

as B.C.’s sole managing conservator and appointed Father and Mother as parent

possessory conservators.

      With respect to Mother’s possession of and access to B.C., the trial court’s

order provides as follows:

      Considering [B.C.’s] age, developmental status, circumstances,
      needs and the best interest of [B.C.] along with the circumstances of
      [Mother and Father], the Court finds that that the limited possession
      and access provided by this order does not exceed the restrictions
      needed to protect the best interest of the child.

             IT IS ORDERED that the primary residence of the child, [B.C.],
      shall be the residence of [Grandmother]. [Grandmother] shall have
      the superior rights of possession of [B.C.] at all times.

            IT IS ORDERED that [Mother] shall have possession of and
      access to [B.C.] at all times mutually agreed upon in advance by
      [Mother] and [Grandmother].

            ....



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              IT IS ORDERED that if at any time [Grandmother] determines
      that supervised access between [B.C.] and either [Father or Mother]
      is in the child’s best interest, then [Grandmother] may designate an
      appropriate adult to supervise the possession or access to [B.C.] at
      such time as the parties may mutually agree.

                           II. RESTRICTED APPEAL

      Mother attempts a restricted appeal from the trial court’s final order. See

Tex. R. App. P. 30. To prevail in her restricted appeal, Mother must show that

(1) she filed a notice of appeal within six months of the date the complained-of

judgment was signed; (2) she was a party to the suit but did not participate in the

hearing that resulted in the judgment; (3) she did not timely file a postjudgment

motion, request findings of fact and conclusions of law, or file a notice of appeal

within the time permitted under rule of appellate procedure 26.1(a); and (4) the

complained-of error is apparent from the face of the appellate record. See Tex.

R. App. P. 26.1(c), 30; Watson v. Watson, 286 S.W.3d 519, 522 (Tex. App.—Fort

Worth 2009, no pet.); see also Etheredge v. Hidden Valley Airpark Ass’n, Inc.,

169 S.W.3d 378, 381 (Tex. App.—Fort Worth 2005, pet. denied) (op. on reh’g)

(stating restricted appeal requirements should be “liberally construed”). The only

element at issue in this appeal is whether error is apparent on the face of the

record.

      In what we construe as a single issue, Mother contends that the face of the

record demonstrates the trial court erred by ordering that she “shall have

possession of and access to [B.C.] at all times mutually agreed upon in advance

by [her] and [Grandmother].” Mother argues that order is an abuse of discretion

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because it gives Grandmother complete discretion over Mother’s visitation rights.

A trial court’s possession and visitation determinations are reviewed for an abuse

of discretion. Halleman v. Halleman, 379 S.W.3d 443, 447 (Tex. App.—Fort

Worth 2012, no pet.). Under that standard, an appellate court will not disturb the

trial court’s possession or visitation decisions unless the trial court acted without

reference to any guiding rules or principles in making them—unless, in other

words, those determinations were arbitrary or unreasonable. See id.

      Mother bases her argument that the trial court’s possession order was an

abuse of discretion entirely upon a portion of our decision in Conn v. Rhodes,

No. 02-08-00420-CV, 2009 WL 2579577, at *4 (Tex. App.—Fort Worth Aug. 20,

2009, no pet.) (mem. op.). In Conn, the trial court had entered a possession

order that “the conservators shall have possession of the child at times mutually

agreed to in advance by the parties.” Conn, 2009 WL 2579577, at *3 (emphasis

in original). Like Mother here, the appellant in Conn argued the trial court erred

by entering that possession order because it gave the child’s managing

conservator complete discretion over the appellant’s visitation rights. Id. Mother

quotes the following portion of our Conn opinion:

      A trial court may not give one parent the unbridled discretion,
      unenforceable by contempt, to decide whether the other parent may
      have access to, or possession of, their children. Thus, when a court
      places restrictions or conditions on a conservator’s possession
      rights, the court must specifically define those terms in its decree.
      The judgment must state, in clear and unambiguous language, what
      is required for the conservator to comply, and the terms must be
      specific enough to permit the conservator to enforce the judgment by
      contempt.

                                         5
Id. at *4 (citations omitted).   Mother argues this portion of our Conn opinion

supports her contention that the trial court’s possession order gives Grandmother

the unrestrained discretion to completely deny her possession of B.C.

      But in Conn itself, we concluded the opposite. We concluded the trial

court’s possession order providing that “the conservators shall have possession

of the child at times mutually agreed to in advance by the parties” did not

      subject [the appellant’s] visitation to [the managing conservator’s]
      complete discretion, nor [did] it deprive [the appellant] of possession
      altogether. If [the managing conservator] obstructs possession or is
      unreasonable with respect to arranging times for [the appellant’s]
      visitation with the child, [the appellant] can appear before the trial
      court to request specific, workable terms for visitation.

Id. And we ultimately held that possession order was not an abuse of discretion.

Id. (holding “the trial court did not abuse its discretion by making [appellant’s]

visitation schedule subject to the parties’ mutual agreement”).        Mother has

presented no argument why a different result should obtain with respect to the

nearly identical possession order here. We conclude, therefore, that Mother has

failed to show the trial court abused its discretion by making her visitation

schedule subject to the parties’ mutual agreement. See id. Accordingly, Mother

has failed to present error that is apparent from the face of the record. See

Watson, 286 S.W.3d at 522. We overrule Mother’s sole issue.

                                 III. CONCLUSION

      Having overruled Mother’s sole issue, we affirm the trial court’s judgment.

See Tex. R. App. P. 43.2(a).

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                                         /s/ Lee Gabriel

                                         LEE GABRIEL
                                         JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DELIVERED: October 26, 2017




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