                             NUMBER 13-13-00124-CV

                             COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                     CORPUS CHRISTI - EDINBURG

JESSICA PULLIN CANCINO,                                                      Appellant,

                                            v.

JUAN MANUEL CANCINO,                                                           Appellee.


                    On appeal from the 135th District Court
                          of Refugio County, Texas.


                         MEMORANDUM OPINION
               Before Justices Garza, Benavides, and Perkes
                Memorandum Opinion by Justice Benavides
       By two issues, appellant, Jessica Cancino appeals the trial court’s determination

of custody of her two minor children.     Appellant argues: (1) the trial court’s delayed

findings of fact and conclusions of law did not allow her to effectively present her appeal

or ask for amended and additional findings of fact and conclusions of law; and (2) the trial
court’s award of custody to her ex-husband was not in the children’s best interest. We

affirm.

                                             I.     BACKGROUND

              Jessica and Juan Cancino married on September 3, 2010. Their two children

were born prior to their marriage1.               Juan filed for divorce on July 1, 2011.   After their

separation in 2011, the Texas Department of Family and Protective Services (“CPS”)

investigated Jessica for allegations of drug use and neglect of her children. While under

investigation, Jessica had to complete substance abuse counseling, have supervised

visits with her children, and attend anger management classes and programs.                  CPS did

not investigate Juan.

          On July 7, 2011, both parties signed a Rule 11 Agreement that named them joint

managing conservators of their children.                    Juan and Jessica agreed to a modified

possession order in which each parent would get the children on a four-day rotating

schedule, which coincided with their days off from work. Jessica was to continue to

abide by the CPS requirements until they were terminated.

              In the summer of 2011, Jessica began dating Preston Mascorro, who was

incarcerated in the Texas Department of Criminal Justice for murder and other serious

offenses.        Based on conversations with his children, Juan determined they knew about

Mascorro’s incarceration and they were told by Jessica to write letters to him and speak

on the phone with him. In addition, Jessica had taken the children on trips to Amarillo to

visit Mascorro at his prison unit.           Upon learning this information, Juan asked the trial



          1   Juan and Jessica’s two children were born in 2008 and 2009.

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court for a modification to the Rule 11 Agreement, specifically requesting that the children

have no contact with Mascorro. The trial court granted Juan’s request.

          The parties later participated in a bench trial to determine custody of the children.

Juan and Jessica both testified.      At the conclusion of the trial, the trial court named Juan

and Jessica joint managing conservators and granted Juan the exclusive right to

determine the primary residence of the children.             Jessica was named possessory

conservator and ordered to pay child support in the amount of $600.32 monthly.                The

trial court also included an injunction in its final orders, issued on December 14, 2012,

prohibiting the children from seeing, hearing from, receiving information about, or

communicating with Mascorro.

          On January 3, 2013, Jessica filed a request with the trial court for findings of fact

and conclusions of law.      On February 7, 2013, she filed a past due notice for findings of

fact and conclusions of law.      Although the trial court still had not filed its findings of fact

and conclusions of law, Jessica filed a notice of appeal on March 3, 2013.           On June 11,

2013, this Court abated the appeal and ordered the trial court to make its findings and

conclusions.      On June 27, 2013, the trial court filed its findings of fact and conclusions

of law.     Jessica’s appeal was reinstated on July 15, 2013, and a supplemental record

was submitted by the district clerk’s office.    Jessica did not file her brief until September

18, 2013.

                 II.    BELATED FINDINGS OF FACT AND CONCLUSIONS OF LAW

          By her first issue, Jessica argues that she was harmed by the trial court’s delayed

findings of fact and conclusions of law by not being able to properly present her appeal

and not being able to request amended or additional findings.

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          A.     Standard of Review

          When the trial court files belated findings, the only issue is whether the appellant

was harmed.       Robles v. Robles, 965 S.W.2d 605, 610 (Tex. App.—Houston [1st Dist.]

1998, pet. denied). Without harm, “litigants have no remedy if a trial court files untimely

findings and conclusions.”      Id.   “Injury may be in one of two forms: (1) the litigant was

unable to request additional findings, or (2) the litigant was prevented from properly

presenting his appeal.”       Id. (citing Jefferson County Drainage Dist. v. Lower Neches

Valley Auth., 876 S.W.2d 940, 956-60 (Tex. App.—Beaumont 1994, writ denied)); see

also Morrison v. Morrison, 713 S.W.2d 377, 381 (Tex. App.—Dallas 1986, writ dism’d).

If harm is shown, “the appellate court may abate the appeal so as to give the appellant

the opportunity to request additional or amended findings in accordance with the rules.”

Id. (citing McShan v. Pitts, 538 S.W.2d 266, 266 (Tex. Civ. App.—San Antonio 1976, no

writ) (per curiam)).

          B.     Discussion

          Appellant alleges she was harmed by the delay in the filing of the trial court’s

findings of fact and conclusions of law because she had to “guess at the specific reason

why the trial court awarded Juan primary custody of the children.” However, a review of

the procedural timeline in this case shows the opposite.

          By the time her brief was filed with this Court, the findings of fact and conclusions

of law had been on file for almost three months.         Jessica had submitted no previous

briefs.    She did not have to “guess” at the reasons the trial court ruled against her

because they were available to her when she prepared her appellate brief.



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       Jessica also alleges that she was harmed because she was unable to request

amended or additional findings of fact or conclusions of law.    Under Texas Rule of Civil

Procedure 298, any party can ask for specified additional or amended findings of fact or

conclusions of law within 10 days after the original findings are filed. See TEX. R. CIV. P.

§ 298. The initial findings were filed by the trial court on June 27, 2013; therefore, any

party could have requested specific additional findings before July 8, 2013, but neither

party did.    Jessica’s appeal was not reinstated by this Court until July 15, 2013.   Even

after July 15, 2013, either party could have requested additional findings.    Robles, 965

S.W.3d at 611 (“a trial court may file additional findings even after it loses plenary power

to affect the judgment.”) (citing Morrison v. Morrison, 713 S.W.2d 377, 381 (Tex. App.—

Dallas 1986, writ dism’d).     The “failure of a party to request additional or amended

findings or conclusions waives the party’s right to complain on appeal about the presumed

finding.”    Gentry v. Squires Constr., Inc., 188 S.W.3d 396, 408 (Tex. App—Dallas 2006,

no pet.). Therefore, because Jessica’s brief was filed months after the trial court issued

its findings and conclusions and she did not request any additional findings from the trial

court at any time, we cannot say she was harmed by the trial court’s untimely findings.

                  III.   FINDINGS AGAINST THE BEST INTEREST OF THE CHILD

       By her second issue, Jessica argues that the trial court erred when it named Juan

the custodial parent.

       A.       Standard of Review and Applicable Law

       In cases involving child custody, the “judgment of the trial court will be reversed

only when it appears from the records as a whole that the court has abused its discretion.”

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The “test for abuse of discretion

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is whether the trial court acted without reference to any guiding rules or principles; in other

words, whether the act was arbitrary or unreasonable.”          In re H.S.N., 69 S.W.3d 829,

831 (Tex. App.—Corpus Christi 2002, no pet.) (citing Worford v. Stamper, 801 S.W.2d

108, 109 (Tex. 1990)).

          “The trial court is given wide latitude in determining the best interests of a minor

child.”    Gillespie, 644 S.W.2d at 451 (citing Leithold v. Plass, 413 S.W.2d 698, 701 (Tex.

1967)).     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 (West, Westlaw through 2013 3d C.S.). The

“trial court’s judgment regarding what serves the best interest of the child with regard to

child support and visitation, specifically the establishment of terms and conditions of the

conservatorship, is a discretionary function of the trial court and will only be reversed upon

a determination that the trial court has abused its discretion.”     In re. H.S.N., 69 S.W.3d

at 831 (citing MacCallum v. MacCallum, 801 S.W.2d 579, 582 (Tex. App.—Corpus Christi

1990, writ denied)).     “This is because the trial court is in the best position to observe the

demeanor and personalities of the witnesses and can feel forces, powers, and influences

that cannot be discerned by merely reading the record.”           Id. (citing In re T____, 715

S.W.2d 416, 418 (Tex. App.—Dallas 1986, no writ)).

          There are numerous factors the trial court can use to determine what is in the best

interest of a child.   Included in these are:

          “(A) the desires of the child; (B) the emotional and physical needs of the
          child now and in the future; (C) the emotional and physical danger to the
          child now and in the future; (D) the parental abilities of the individuals
          seeking custody; (E) the programs available to assist these individuals to
          promote the best interests of the child; (F) the plans for the child by these

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       individuals or by the agency seeking custody; (G) the stability of the home
       or proposed placement; (H) the acts or omissions of the parent which may
       indicate that the existing parent-child relationship is not a proper one; and
       (I) any excuse for the acts of omissions of a parent.”

Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976).

       B.       Discussion

       The trial court determined the issues of child custody and child support after a

bench trial on those issues.      Both Jessica and Juan testified at the bench trial. Both

attorneys and the trial judge questioned them.        Juan testified that he has had a stable

job for six years. Juan has a work schedule that allows him to work four days on and

four days off.    Juan’s mother cares for the children when he cannot.           Juan testified

generally about a CPS case against Jessica regarding substance abuse and neglect

towards her children. As a result of the investigation, Jessica had to take substance

abuse treatment classes, anger management classes, and have supervised visitation with

her children.    Juan testified at length about Jessica’s boyfriend, Mascorro.       According

to Juan, Mascorro has called Juan multiple times from prison and threatened him.          Juan

also testified that his children said that Jessica has told them to speak to Mascorro on the

phone and in letters in violation of the trial court’s order.   Juan felt he was the parent who

could best care for his children.

       Jessica also testified at the bench trial. She told the trial court she also has a

“four-day on” and “four-day off” work schedule as well.         She met Mascorro through his

brother after he was incarcerated. She stated she had gone to see him thirty to forty

times since they met in 2011. She did not believe the prior injunction protecting her

children was necessary.      She also stated that if the trial court imposed an injunction in


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its final order, she would not want to obey the injunction but would for her children.

Jessica testified that Mascorro could be a father-figure to her children and that she plans

to marry him at some point.       Jessica also told the trial court the current visitation

schedule would not work because it fatigues her children.

       The trial court issued findings of fact and conclusions of law in determining Juan

to be the primary conservator.       It is clear from those findings that the trial court

considered Jessica’s investigation by CPS as a determining factor. The trial court also

explicitly stated that Jessica’s relationship with Mascorro was a relevant factor in its

determination. The trial court found that Jessica was “not acting in the best interest of

the children when she allowed them to have contact with Preston Mascorro.” Because

Jessica told the court she planned to continue her relationship, the trial court made an

appropriate determination to place the children with their father.

       Since the trial court issued findings of fact and conclusions of law that spell out the

reasons for its decision, and because these reasons are clear, supported by the record,

and not arbitrary or unreasonable, Jessica has not shown that the trial court abused its

discretion.   See In re HSN, 69 S.W.3d at 831.

                                    IV.    CONCLUSION

       We affirm the trial court’s judgment.




                                                         GINA M. BENAVIDES,
                                                         Justice

Delivered and filed the
7th day of May, 2015.


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