      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-000622-CV



                                        E. T.- M., Appellant

                                                  v.

         Texas Department of Family and Protective Services and M. L., Appellees


      FROM THE DISTRICT COURT OF BELL COUNTY, 146TH JUDICIAL DISTRICT
        NO. 294,332-B, HONORABLE JACK WELDON JONES, JUDGE PRESIDING



                             MEMORANDUM OPINION


               Appellant E.T.-M. (Mother) appeals the trial court’s final order in this suit affecting

the parent-child relationship. In one issue, Mother challenges that portion of the order granting

M.L. (Father) the exclusive right to determine the primary residence of the couple’s child. Finding

no abuse of discretion, we will affirm the trial court’s order.


                                         BACKGROUND

               Mother and Father’s child, M.A. L.-T. (or “M.A.”), was born on September 30, 2009.

When Mother and Father divorced in 2013, the trial court appointed Mother the sole managing

conservator of M.A. and appointed Father the possessory conservator. In July 2017, the Texas

Department of Family and Protective Services received a report of neglectful supervision arising

from Mother’s suicide attempt, made while M.A. and a child by a previous relationship were in her

care. The Department filed an original petition for protection of the children and, if necessary, for
termination of Mother’s parental rights. According to the affidavit of the Department investigator,

which was attached to the Department’s original petition, Mother admitted to the investigator that

she had been home alone with her children, heavily intoxicated and depressed, when she attempted

to overdose on ibuprofen. M.A.’s half-sibling called 9-1-1 when Mother became unresponsive.

According to the investigator’s affidavit, Mother had “attempted suicide three times in her past,

all due to domestic violence by her significant others.” The Department removed the children from

Mother’s custody, and the court designated the Department as temporary managing conservator.

M.A. was placed in the care of Father, subject to monitoring by the Department, and Mother was

granted supervised visits with M.A.

               A final hearing began on January 17, 2018, and reconvened on March 7, 2018.1 At

the final hearing, the trial court heard testimony from the Department caseworker and from Father.

Documents admitted as exhibits at the hearing included copies of the Department’s “final

permanency report to the court”; a report from an August 2017 psychological evaluation of Mother;

negative results from a random drug test performed on Mother in January 2018; and a one-page

“counseling note” signed by Mother’s individual counselor on January 29, 2018, recommending

M.A.’s return to Mother. At the close of the hearing, the Department, along with the attorney ad litem

and guardian ad litem, recommended that the trial court modify the divorce decree to appoint Father

and Mother as joint managing conservators and to designate Father as the conservator with the

exclusive right to establish M.A.’s primary residence. The trial court subsequently signed a final


       1
          Following the final hearing, Mother was appointed as sole managing conservator of M.A.’s
half-sibling, whose father could not be located. No party has appealed this conservatorship decision.
Therefore, we examine the trial court’s rulings and evidence only as it relates to M.A.

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order in accordance with the Department’s recommendation on conservatorship and granted

Mother access to the child under a standard possession order. This appeal followed.


                                     STANDARD OF REVIEW

                We review a trial court’s decisions regarding conservatorship, including a

determination of which conservator will have the exclusive right to establish the child’s primary

residence, for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A trial court

abuses its discretion if it acts arbitrarily or unreasonably or without regard to guiding rules or

principles. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.).

                In family law cases, the abuse-of-discretion standard overlaps with traditional

sufficiency standards of review. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006,

pet. denied); see Miller v. Miller, No. 03-14-00603-CV, 2015 WL 6830754, at *5 (Tex. App.—Austin

Nov. 4, 2015, no pet.) (mem. op.). Consequently, in applying the standard, we engage in a two-

pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise

its discretion and (2) whether the trial court erred in its application of that discretion.2 Zeifman,


        2
           The focus of the first inquiry is the sufficiency of the evidence. Zeifman v. Michels,
212 S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied). Under the second inquiry, we must
decide whether, based on the evidence before it, the trial court made a reasonable decision—that is,
that its decision was neither arbitrary nor unreasonable. Id. To determine if the evidence is legally
sufficient to support the trial court’s exercise of discretion, we consider the evidence in the light most
favorable to the trial court’s findings if a reasonable factfinder could and disregard evidence to the
contrary unless a reasonable factfinder could not. City of Keller v. Wilson, 168 S.W.3d 802, 897
(Tex. 2005). When reviewing the evidence for factual sufficiency, we consider and weigh all the
evidence presented and will set aside the trial court’s findings only if they are so contrary to the
overwhelming weight of the evidence such that they are clearly wrong and unjust. Id. at 821. When
the evidence conflicts, we must presume that the factfinder resolved any inconsistencies in favor of
the order if a reasonable person could do so. Id. at 822.

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212 S.W.3d at 587. “An abuse of discretion does not occur as long as some evidence of a

substantive and probative character exists to support the trial court’s decision.” Echols, 85 S.W.3d

at 477.


                                           ANALYSIS

               In one issue on appeal, Mother contends that the trial court abused its discretion in

designating Father as the joint conservator with the right to establish M.A.’s primary residence

because the evidence at the final hearing established that Father “is not currently in this country

legally, and thus could be deported at anytime.” Mother does not, however, point to specific

evidence suggesting that she, in fact, would be the more suitable conservator to designate M.A.’s

primary residence. Instead, Mother seems to argue that the evidence regarding Father’s immigration

status, standing alone, prohibits the trial court from designating Father as the conservator with the

right to determine M.A.’s residence, regardless of the remaining evidence in the record.3 This

argument, however, fails to consider the trial court’s wide discretion and the scope of our review.

               When the trial court appoints joint managing conservators, it must designate the

conservator who has the exclusive right to determine the primary residence of the child. Tex. Fam.

Code § 153.134. In determining which joint conservator should have the exclusive right, the best

interest of the child is the court’s primary consideration, as it is in determining all “issues of




          3
          Although not entirely clear, Mother’s argument appears to be premised on the assumption
that a deportation of M.A.’s Father would negatively impact M.A.’s well being. Although we do
not necessarily disagree with this assumption, we cannot conclude that the mere possibility of
deportation prevents the trial court from designating Father as the joint managing conservatorship
with the right to determine the child’s primary residence.

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conservatorship and possession of and access to the child.” Id. § 153.002. Trial courts generally

have wide latitude in determining what is in a child’s best interest, Gillespie v. Gillespie,

644 S.W.2d 449, 451 (Tex. 1982), and may use a non-exhaustive list of factors to aid in the

determination, Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). The factors include (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 the agency seeking custody;

(7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which

may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for

the act or omissions of the parent. Id. These factors are not exhaustive, and no single factor is

controlling. In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); Spurck v. Texas Dep’t of Family & Protective

Servs., 396 S.W.3d 205, 222 (Tex. App.—Austin 2013, no pet.). The factfinder is not required to

consider all of the factors, and the presence of a single factor may, in some instances, be adequate

to support a best-interest finding. Spurck, 396 S.W.3d at 222. With these factors in mind, we review

the evidence in the record.

               At the final hearing, the Department presented evidence, including the Department

caseworker’s testimony and the final permanency report, indicating that M.A. was doing well in

Father’s care, Father was able to provide a stable home for M.A. and meet his needs, and M.A.

wished to remain living with Father. The Department caseworker testified that she did not have any

concerns about Father’s immigration status but on cross-examination acknowledged that she was



                                                  5
unsure of whether Father had been driving without a valid license. In his testimony, Father admitted

that he was not in the country legally but denied that he could be deported at any time, explaining

that he had filed immigration paperwork to obtain legal status. A copy of a “Petition for Alien

Relative,” purportedly filed by Father’s wife with Department of Homeland Security and listing

Father as a “beneficiary,” was admitted into evidence. Father also testified that, although he did not

currently have a driver’s license, he would be able to obtain a license in the future; he was not

currently driving with M.A. in the vehicle; and his wife was assisting in M.A.’s care and taking M.A.

to medical appointments.

               The trial court was presented with evidence that Mother was “making progress with

her services, had completed a psychological evaluation, and was attending weekly individual

counseling.” According to the permanency report, “[Mother] [was] determined to do all necessary

tasks to protect her children.” The Department also presented evidence, however, that Mother has

a history of alcohol abuse, for which she is currently receiving help, and that she suffers from various

symptoms of depression.

               The trial court is best able “to observe the demeanor and personalities of the witnesses

and [to] ‘feel’ the forces, powers, and influences that cannot be discerned by merely reading the

record.” See Echols, 85 S.W.3d at 477. We will not re-weigh the evidence bearing on the best-

interest determination, see City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005), and the fact

that we might decide the issue differently than the trial court does not establish an abuse of

discretion, Zeifman, 212 S.W.3d at 587. Having reviewed the evidence in this case under the

appropriate standards, we conclude that there is “at least some evidence of substantive and probative



                                                   6
character” to support the trial court’s conclusion that it is in M.A.’s best interest to give Father, as

joint conservator with Mother, the right to determine the child’s primary residence. See Echols,

85 S.W.3d at 477. That is, the trial court had sufficient information on which to exercise its discretion

and did not err in the application of that discretion. See id. at 477-78. Accordingly, the trial court

did not abuse its discretion by designating Father as the conservator with the exclusive right to

determine M.A.’s primary residence.

                We overrule Mother’s sole issue on appeal.


                                           CONCLUSION

                Having overruled appellant’s issue on appeal, we affirm the judgment of the

trial court.



                                                __________________________________________
                                                Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Triana and Kelly

Affirmed

Filed: March 1, 2019




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