Affirmed and Memorandum Opinion filed March 6, 2018.




                                            In The

                        Fourteenth Court of Appeals

                                   NO. 14-17-00758-CV

                      IN THE INTEREST OF I.M.F., A CHILD

                       On Appeal from the 315th District Court
                                Harris County, Texas
                         Trial Court Cause No. 2016-04078J

                    MEMORANDUM                          OPINION
       The Texas Department of Family and Protective Services (the Department)
filed suit against J.A.B. (Mother) and S.G.F. (Father) seeking termination of their
parental rights of their daughter, Ivy.1 At trial, the Department abandoned its request
for termination and instead asked that Ivy’s paternal grandmother, B.B.
(Grandmother), be named Ivy’s managing conservator. The trial court appointed
Grandmother as Ivy’s sole managing conservator and named Mother and Father as
Ivy’s possessory conservators. Mother moved for a new trial, which was denied.


1
  We use pseudonyms or initials to refer to the child, parents, and other family members involved
in this case. See Tex. Fam. Code Ann. § 109.002(d); Tex. R. App. P. 9.8(b)(2).
      Only Mother appeals. She contends the trial court abused its discretion by:
(1) awarding Grandmother sole managing conservatorship; and (2) placing arbitrary
and unreasonable restrictions on Mother’s right to possession of and access to Ivy.
She does not complain about the denial of her motion for new trial.

      We find no abuse of discretion and affirm the judgment.

                                  BACKGROUND

      A.      Removal
      The Department received a report in May 2015 of “serious concerns” about
the parents’ ability to care for two-day-old Ivy. The reporter alleged Mother and
Father appeared to lack any parenting skills and were not engaging with the baby.
The parents were said to have become “so agitated and hostile verbally” that Ivy had
to be removed from the room for her safety. Two more reports in as many months
expressed concern for Ivy’s welfare, alleging Mother and Father used drugs in her
vicinity. While under the influence of drugs, Father reportedly became so aggressive
that the police took him to a psychiatric hospital for assessment. Mother allegedly
had “extensive” psychiatric history and suffered from untreated mental illness.

      Mother and Father were referred to family-based safety services (FBSS),
where they agreed to complete services and allow Ivy to live with Grandmother. As
time went by, though, they reportedly refused to participate in services or submit to
drug tests. Concerns developed about domestic violence between Mother and Father
and between Mother and Grandmother. The parents’ behavior was allegedly so out
of control at a family team meeting that no agreement could be reached about how
to proceed.

      In July 2016, the Department filed this lawsuit for protection of a child for
conservatorship and termination in a suit affecting the parent-child relationship,


                                         2
attaching Sullivan’s affidavit to the petition. The Department asked to be named
Ivy’s temporary managing conservator.

      B.     Pretrial proceedings
      The trial court held a full adversary hearing at the end of August 2016. After
the hearing, the court signed an order removing Ivy from Mother’s and Father’s care
and naming the Department as Ivy’s temporary managing conservator. Ivy remained
with Grandmother.

      Following a status hearing in mid-October 2016, the trial court signed an order
approving the family service plan the Department created for Mother and directing
Mother to comply with the plan. The trial court’s orders signed January 11, 2017
and April 12, 2017 both state Mother “has demonstrated adequate and appropriate
compliance with the service plan.” The service plan is not in the appellate record.

      C.     Trial
      Trial was held on July 12, 2017. Mother appeared in person and was
represented by counsel. Father appeared by telephone from prison while his lawyer
participated in the courtroom.

      Before the presentation of evidence, the Department announced it was
abandoning its request for termination and proceeding instead on its alternate request
that Grandmother be appointed Ivy’s permanent managing conservator. All parties
stated they had no objection.

      The Department presented testimony from Father, Grandmother, and
caseworker Jazmine Greene. Its documentary evidence, all admitted without
objection, included orders signed by the trial court throughout the case and an
August 2016 letter from a drug testing facility stating Mother refused to submit to a
drug test. Mother testified on her own behalf; she did not call other witnesses or offer

                                           3
documentary evidence. Neither Father nor Ivy’s attorney ad litem called witnesses
or offered evidence.

             1.    Agreement between Father and the Department about
                   conservatorship
      Father and the Department had reached an agreement regarding Ivy’s
conservatorship. He testified to the terms of the agreement:

            Grandmother would be Ivy’s managing conservator.

            Mother and Father would be Ivy’s possessory conservators.

            All visitations between Ivy and a parent would be supervised by
             Grandmother. If the parent and Grandmother could not agree on the
             logistics of a particular visit, a third-party agency would coordinate.

            Father would pay child support beginning 90 days after his release from
             prison.
      Father believed naming Grandmother as Ivy’s managing conservator was in
Ivy’s best interest, as did Grandmother.

      Mother did not agree to those terms. She wanted Ivy to be returned to her care.

             2.    Evidence about Mother
      According to Greene, the Department’s primary concern about Ivy’s safety
was Mother’s mental health and emotional instability. Greene worried Mother could
not manage Ivy’s or her own behavior.

      Greene testified Mother had been diagnosed with a mood disorder in a
psychiatric evaluation but was not addressing it, despite being recommended
treatment and referred to a provider. In fact, Greene reported, Mother denied having
a mood disorder.

      Mother disagreed. She testified she never received referrals or follow-up


                                           4
treatment information. Nevertheless, she said, she was currently in therapy.

      Greene described several events to illustrate her concerns. After this lawsuit
began, a family group meeting was held for which Mother was permitted to attend
by telephone. Mother allegedly began “yelling, cursing, saying that this meeting was
about her and that we needed to wait. . . .” Department personnel cautioned Mother
to stop speaking in that way, but she did not and the phone call was terminated.
Later, during a visit with Ivy, Mother asked Greene why the permanency goal for
Ivy was relative conservatorship. Greene testified she “explained to her because we
removed the child based on your mental health and [] you’re not addressing.” Mother
reportedly “stormed out of the visitation room.” Greene’s supervisor got involved,
and Mother told both Greene and the supervisor, “I don’t want to hear nothing you
or her have to say, both of you are stupid and you don’t know your damn job.”
Trouble arose at another visitation, which was scheduled for 8:30 a.m. Mother texted
Greene at 8:44 saying, according to Greene, “I will be here at 9:30 and I expect for
my child to be present at 9:30.” When Mother arrived, she reportedly used racial
slurs to a security guard. She was instructed to leave the premises and warned the
police would be called if she did not leave. At another visit, Greene heard “shuffling”
of chairs and believed Mother threw, kicked, or pushed the chair. Ivy was with
Mother at the time. More recently, Mother had referred to Ivy as “little turd” and
“little shit” on several occasions. When Greene asked her not to speak of Ivy in that
manner, Mother told her, “This is my child; I can call her what I want.” Outbursts
like the ones described were “pretty frequent,” according to Greene. She estimated
Ivy saw three or four such episodes in the two months before trial.

      Mother did not dispute any of the events Greene recounted. She testified she
started therapy two weeks before trial and was in “ongoing therapy in place of
medication.” She said her therapist performed a psychological evaluation but did not

                                          5
mention any mood disorder. She also said the therapist had not diagnosed Mother or
offered her a prognosis.

      Mother was previously prescribed “medication to make me happy” and
believed one such medication was Prozac. However, she electively discontinued
medication about a year before trial. During the year between stopping medication
and beginning therapy, she admitted, Mother received no mental health treatment.

             3.    Evidence about Ivy
      Ivy was two years old at the time of trial. Both Greene and Grandmother
testified Ivy was doing very well. Greene agreed Grandmother was meeting all of
Ivy’s physical and emotional needs. She believed it would be in Ivy’s best interest
for Grandmother to be named Ivy’s managing conservator. The Department’s long-
term permanency goal for Ivy was relative conservatorship.

      By contrast, Greene believed naming Mother as Ivy’s managing conservator
would be detrimental to Ivy’s emotional, physical, and mental development, largely
due to Ivy’s young age. Greene testified she believed Mother could be a possessory
conservator but should not be Ivy’s managing conservator, explaining Ivy could not
defend herself, make a phone call, or reach out for help.

      Grandmother agreed Ivy’s visits with Mother should be supervised. She said
supervision was necessary due to Mother’s previous incidents with the Department.

             4.    Trial court’s findings
      The trial court made findings including the following:

            Appointment of a parent or both parents as managing conservator
             would not be in Ivy’s best interest because the appointment would
             “significantly impair [her] physical health or emotional development.”

            Grandmother was informed of the rights and duties as a non-parent sole
             managing conservator.
                                          6
           Appointment of Mother and Father as possessory conservators of Ivy
            would be in Ivy’s best interest, and the restrictions placed on their
            possession and access do not exceed those needed to protect Ivy.

      Based on those findings, the trial court appointed Grandmother as Ivy’s sole
managing conservator and named Mother and Father as possessory conservators. It
ordered:

      [A]ll visitation between [Ivy] and [Mother] shall be supervised by the
      managing conservator at all times and places as mutually agreed.
      Failing agreement, visitation shall be supervised in accordance with the
      Guardians of Hope Program.
The trial court further ordered Mother to pay monthly child support beginning
August 1, 2017.

      D.    Motion for new trial
      Mother timely filed a motion for new trial through her newly-appointed
appellate counsel. At the hearing on her motion, she offered seven exhibits:

      1.    a high school diploma dated May 26, 2017;
      2.    a certificate of completion of six individual counseling sessions dated
            March 30, 2017;
      3.    identification cards for an auto insurance policy in Mother’s name dated
            May 4, 2017;
      4.    an apartment lease in Mother’s name dated June 2, 2017;

      5.    three paystubs dated September 21, October 5, and October 19, 2017;

      6.    receipts for six money orders said to demonstrate Mother paid rent on
            June 2, July 13, August 14, September 21, and October 9, 2017; and

      7.    two emails from Entergy Texas confirming Mother paid her utility bills
            on September 21 and October 16, 2017.
      The Department objected to Mother’s evidence on several grounds. First, it

                                         7
said it did not receive notice that evidence would be reopened at the hearing on
Mother’s motion for new trial. Second, the Department asserted the evidence was
not new because “the information . . . was readily available at the time of trial.”
Third, the exhibits were unauthenticated and inadmissible because they did not
satisfy the business-records exception to the hearsay rule. Mother’s lawyer
responded he did not know if the evidence was readily available because he did not
represent Mother at trial. He said he would lay the predicate for admission by asking
Mother “some questions regarding . . . what courses she has taken and what she’s
done to show the Court that she is not a danger to the emotional and physical well-
being of her daughter.” Counsel also contended the evidence should be admitted via
a motion for new trial rather than a motion regarding ineffective assistance of
counsel:

      I believe it’s more expeditious to attempt to have this evidence admitted
      now than having to possibly request that . . . it be admitted in a hearing
      on . . . an ineffective assistance of counsel motion.

The trial court admitted all seven exhibits over the Department’s objection.

      Mother testified she began working at Panera Bread in February 2017, earned
her high school diploma in May 2017, and leased her own apartment in June 2017.
She paid the rent and utility bill for her apartment. She had a car at the time of trial
and had since gotten a different car. She carried insurance for each car.

      As part of this case, Mother said, she was required to and did complete
individual counseling and parenting classes. She offered her certificate of
completion for counseling, but neither that certificate nor any other exhibit indicates
whether she completed parenting classes.

      Mother last lived with Father more than a year before trial. She said he was
no longer in her life.

                                           8
      Mother testified she had not visited Ivy. She said Grandmother would not
agree to meet with her and they have a “chaotic relationship.” As a result, visits had
to be arranged through the “Safe Program,” and Mother asserted she could not afford
the fees charged by the “Safe Program.”

      The Department elected not to cross-examine Mother, instead standing on its
objection to the admission of any evidence without proper notice.

      The trial court denied Mother’s motion for new trial.

                                      ANALYSIS
      Mother raises two issues on appeal. First, she contends the trial court abused
its discretion by awarding Grandmother sole managing conservatorship. Second, she
contends the court abused its discretion by placing “arbitrary and unreasonable
restrictions on Mother’s right to possession of and access to Ivy.” She does not raise
an issue about the denial of her motion for new trial.

I.    Burden of proof and standards of review
      A court’s primary consideration in any conservatorship case “shall always be
the best interest of the child.” Tex. Fam. Code Ann. § 153.002 (West 2014). Texas
courts employ the “parental presumption”—that is, they presume a child’s best
interest is served by remaining with the child’s natural parent. Id. § 153.131(a) (West
2014); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990). The trial court is
required to appoint the parents as joint managing conservators unless evidence is
presented to rebut the parental presumption. Tex. Fam. Code Ann. § 153.131(b). The
party seeking appointment of a non-parent as managing conservator bears the burden
to rebut the parental presumption, which can be accomplished in either of two ways:
(1) a showing that appointment of one or both parents as managing conservator
would significantly impair the child’s health or development; or (2) a finding of


                                          9
family violence. Id.; In re K.S., 492 S.W.3d 419, 427 (Tex. App.—Houston [14th
Dist.] 2016, pet. denied).

         Trial courts have wide discretion with respect to custody, control, possession,
support, and visitation matters. K.S., 492 S.W.3d at 426; In re K.R.P., 80 S.W.3d
669, 674 (Tex. App.—Houston [1st Dist.] 2002, pet. denied). As one court of appeals
observed long ago, deference to the trial court is critical in child custody cases due
to the trial court’s unique position:

         [T]he question of a minor child’s custody in such cases is addressed to
         the sound discretion of the trial court, who faces the parties and the
         witnesses, observes their demeanors and personalities, and feels the
         forces, powers and influences that cannot be discerned by merely
         reading the record. [The judge] is therefore in a better position to
         analyze the facts, weigh the virtues of the parties, and determine what
         will be for the best interests of the minor child.
Thompson v. Haney, 191 S.W.2d 491, 493 (Tex. Civ. App.—Amarillo 1945, no
writ).

         We review managing conservatorship orders for an abuse of discretion. Id.; In
re R.T.K., 324 S.W.3d 896, 899 (Tex. App.—Houston [14th Dist.] 2010, pet.
denied). A court acts within its discretion as long as there is “some evidence of a
substantive and probative character” to support its decision. K.S., 492 S.W.3d at 426.
That discretion includes basing a decision on conflicting evidence. See In re
M.M.M., 307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.) (citing In re
Barber, 982 S.W.2d 364, 366 (Tex. 1998)). A court abuses its discretion when it acts
unreasonably, arbitrarily, or without reference to guiding principles. Id.; R.T.K., 324
S.W.3d at 899. In this context, legal and factual sufficiency challenges are not
independent grounds of error; rather, they are factors to be considered in determining
whether the trial court abused its discretion. K.S., 492 S.W.3d at 426.


                                            10
II.   Appointment of Grandmother as sole managing conservator
      Mother does not challenge the trial court’s appointment of Grandmother, as
opposed to another non-parent, as managing conservator. She challenges only the
finding that the parental presumption of section 153.131(a) of the Family Code had
been rebutted, contending “The evidence adduced at trial totally fails to support the
finding that appointing [Mother] as [Ivy’s] sole managing conservator would
significantly impair the child’s physical or emotional development.” Accordingly,
we, too, limit our discussion to the evidence regarding the parental presumption.

      A.     Evidence admitted at trial
      The majority of the evidence at trial concerned Mother’s mental health and
stability. A parent’s mental illness alone does not necessarily demonstrate that a
child’s physical health or emotional development will be significantly impaired by
parental custody. In re L.D.F., 445 S.W.3d 823, 831 (Tex. App.—El Paso 2014, no
pet.). Untreated mental illness, however, can endanger a child, and accordingly is a
factor the court may consider. See id. (considering father’s diagnosis of bipolar
disorder and his five hospitalizations in connection with that disorder); see also In
re A.L.H., 515 S.W.3d 60, 91 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d)
(considering parent’s persistent and untreated mental illness as evidence of
endangerment for purposes of termination of parental rights); In re J.I.T.P., 99
S.W.3d 841, 845 (Tex. App.—Houston [14th Dist.] 2003, no pet.) (considering
parent’s mental health and noncompliance with medication schedule as factors in
endangering child for purposes of termination of parental rights).

      Greene testified Mother was diagnosed with a mood disorder. Mother testified
she was previously prescribed “medication to make [her] happy,” including Prozac,
but she elected to stop taking the medication about a year before trial began. Just
two weeks before trial, Mother began therapy “in place of medication.”

                                          11
      Whether caused by her mental illness or not, Mother’s behavior during
meetings with the Department and visits with Ivy troubled Greene. Greene recounted
four such incidents, each of which was marked by Mother’s abusive language or
uncontrolled anger. Greene estimated Ivy saw three or four such episodes in the two
months before trial. Mother did not dispute any of these incidents.

      The trial court heard testimony about Mother’s past behavior and decisions
regarding her mental health and about her recent counseling. In considering Ivy’s
best interest, the court was free to use Mother’s past conduct to measure her likely
future conduct. See In re J.D., 436 S.W.3d 105, 119 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).

      B.     Evidence admitted at hearing on motion for new trial
      Mother does not raise an issue on appeal complaining of the trial court’s denial
of her motion for new trial. Rather, she contends the evidence admitted at the hearing
on her motion for new trial demonstrates she is not a danger to Ivy.

      The new-trial evidence was not before the trial court when it signed the
judgment. Therefore, we will not consider it on appeal of that judgment. See
McMahan v. Greenwood, 108 S.W.3d 467, 482–83 (Tex. App.—Houston [14th
Dist.] 2003, pet. denied) (evidence attached to appellant’s motion for new trial was
not before trial court when it granted summary judgment, so court of appeals would
not consider evidence in appeal from summary judgment).

      Even if Mother’s discussion of the new-trial evidence in her brief can be
construed as a challenge to the denial of her motion for new trial, the challenge
would lack merit. A party seeking a new trial on grounds of newly-discovered
evidence must demonstrate to the trial court that (1) the evidence has come to its
knowledge since the trial; (2) its failure to discover the evidence sooner was not due
to lack of diligence; (3) the evidence is not cumulative; and (4) the evidence is so
                                          12
material it would probably produce a different result if a new trial were granted.
Waffle House, Inc. v. Williams, 313 S.W.3d 796, 813 (Tex. 2010); In re C.Y.C., No.
14-11-00341-CV, 2012 WL 3223674, at *19 (Tex. App.—Houston [14th Dist.] Aug.
9, 2012, pet. denied) (mem. op.).2 In child-custody matters, it can be error to refuse
to grant a motion for new trial based on newly-discovered evidence, but only if that
evidence “strongly shows that the original custody order would have a seriously
adverse effect on the interest and welfare of the children, and that presentation of
such evidence at another trial would probably change the result.” C. v. C., 534
S.W.2d 359, 362 (Tex. Civ. App.—Dallas 1976, writ dism’d w.o.j.).

       Mother did not attempt to make the showing required for a new trial to be
granted on newly-discovered evidence. Her lawyer said only that he did not know if
the evidence was readily available at trial because he did not represent her. The
lawyer made that statement as a responsive argument, not as sworn testimony.

       Nor does the new-trial evidence “strongly show” that the decree appointing
Grandmother as Ivy’s sole managing conservator would have a “seriously adverse
effect” on Ivy’s interest and welfare. C. v. C., 534 S.W.2d at 362. The focus of the
trial was on Mother’s mental health. The certificate of completion of individual
counseling is the only new-trial evidence relevant to Mother’s mental health. But the
certificate merely confirms Mother’s testimony at trial that she was seeing a
counselor. The other new-trial evidence is relevant to Mother’s ability to provide for
Ivy, but that ability was not disputed at trial. We cannot say that presentation of the


       2 Newly-discovered evidence must be distinguished from new evidence, which means
evidence that came into being after the judgment was signed. Evidence not in existence prior to
judgment cannot form the basis of a new trial. C.Y.C., 2012 WL 3223674, at *19 (citing In re
S.M.V., 287 S.W.3d 435, 451 (Tex. App.—Dallas 2009, no pet.). The judgment in this case was
signed September 8, 2017, so evidence about events after that date is new, not newly-discovered,
and cannot support a new trial. That evidence includes all of Mother’s paystubs, receipts for rent
paid on all dates other than June 2, 2017, and the emails confirming Mother’s utility payments.
                                               13
new-trial evidence at trial would probably have changed the result of the trial. Id.

       C.    Conclusion on Grandmother’s appointment as sole managing
             conservator
       We conclude the Department satisfied its burden to rebut the presumption that
Ivy’s best interest would be served by remaining with Mother. Mother admitted she
left her mental illness untreated for a year. Her admission, coupled with Greene’s
testimony, supports a finding that appointment of Mother as a managing conservator
would significantly impair Ivy’s health or development. See Tex. Fam. Code Ann.
§ 153.131(a). We overrule Mother’s first issue.

III.   Supervised visitation
       Mother’s second issue complains of the trial court’s imposition of “arbitrary
and unreasonable restrictions on Mother’s right to possession of and access to Ivy.”
The only restriction discussed in her brief, and the only restriction we observe in the
decree, is that her visits with Ivy must be supervised.

       A trial court may place conditions on a parent’s access to a child, such as
supervised visitation, when it is in the child’s best interest. In re A.G., 531 S.W.3d
329, 333 (Tex. App.—Houston [14th Dist.] 2017, no pet.). Restrictions or limitations
imposed on a parent’s right of possession or access may not exceed those necessary
to protect the best interest of the child. Tex. Fam. Code Ann. § 153.193 (West 2014);
A.G., 531 S.W.3d at 333.

       As discussed, the trial court found that appointing Mother as managing
conservator would significantly impair Ivy’s physical health and emotional
development. It is against that backdrop that the trial court was charged with crafting
an order that would allow Mother access to Ivy while protecting Ivy’s best interest.
See In re B.J.W.S., No. 14-08-01154-CV, 2010 WL 4396291, at *8 (Tex. App.—
Houston [14th Dist.] Nov. 4, 2010, no pet.) (mem. op.) (evidence supporting rebuttal

                                          14
of parental presumption for purposes of managing conservatorship, including
father’s mental illness, also supported trial court’s restrictions on father’s access to
child as possessory conservator, including requirement that visits be supervised).

      A parent’s mental illness is a factor to be considered in determining whether
to impose restrictions on that parent’s right of access to the child. See In re Marriage
of Swim, 291 S.W.3d 500, 506 n.7 (Tex. App.—Amarillo 2009, no pet.); B.J.W.S.,
2010 WL 4396291, at *8 (father’s untreated mental illness, among other things,
supported supervised visitation restriction). The evidence shows Mother has a
history of volatile behavior, both in and out of Ivy’s presence. That volatility may
be related to her mood disorder, a disorder for which Mother voluntarily
discontinued treatment for roughly one year. We cannot say the trial court abused its
discretion in requiring Mother’s visits with Ivy to be supervised.

      Mother contends no evidence supports the trial court’s decision to deviate
from the standard possession order, the requirements of which are codified in chapter
153, subchapter F of the Family Code. Tex. Fam. Code Ann. § 153.3101–153.317
(West 2014 & Supp. 2017). She asserts the Department did not rebut the statutory
presumption of section 153.252 that the standard possession order (1) provides
reasonable minimum possession of a child for a parent named as a possessory
conservator, and (2) is in the child’s best interest. See id. § 153.252.

      The standard possession order does not apply in this case, because Ivy was
younger than three at the time of trial. Tex. Fam. Code Ann. § 153.251(d) (West
2014) (“The standard possession order is designed to apply to a child three years of
age or older.”) Mother’s access to and possession of Ivy is governed by section
153.254, which directs the trial court to “render an order appropriate under the
circumstances for possession of a child less than three years of age.” Id. § 153.254(a)
(West 2014 & Supp. 2017); In re Q.D.T., No. 14-09-00696-CV, 2010 WL 4366125,

                                           15
at *7-8 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet.) (mem. op.).

      We overrule Mother’s second issue.

                                  CONCLUSION
      We affirm the trial court’s judgment.




                                              /s/   Ken Wise
                                                    Justice


Panel consists of Justices Boyce, Donovan, and Wise.




                                        16
