                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-17-00357-CV


IN THE INTEREST OF K.K, S.K.,
E.K., AND A.K., CHILDREN




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         FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                    TRIAL COURT NO. 323-104383-17



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                       MEMORANDUM OPINION 1

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     In a termination suit, the trial court signed a final order (1) removing the

Texas Department of Family and Protective Services as managing conservator of

siblings K.K., S.K., E.K., and A.K., (2) appointing Mother as the children’s

managing conservator, and (3) appointing Father as the children’s possessory



     1
      See Tex. R. App. P. 47.4.
conservator. 2 On appeal, Father contends that there is legally and factually

insufficient evidence to support any implied findings excluding him as either a

joint or sole managing conservator. We affirm.

      I. Background

      The Department filed its “Original Petition for Protection of a Child, for

Conservatorship, and for Termination” on January 18, 2017. The “Affidavit in

Support of Removal” indicated that Father was physically abusing the oldest of

the couple’s four children, that Father was believed to have engaged in domestic

violence with Mother, and that Mother seemed unable to protect the children. On

the same date, the trial court appointed the Department as the children’s

managing conservator.

      Father filed an “Original Answer and Counter-Petition” in which he sought

(1) to have himself appointed the children’s sole managing conservator, (2) in the

alternative, “and without waiving any of the foregoing,” he sought to be appointed

joint managing conservator with the Department, and (3) in the alternative, “and

without waiving any of the foregoing,” he sought possessory conservatorship

while “another appropriate relative[,] kinship placement” or the Department was

named managing conservator.




      2
        To protect the parties’ privacy, we identify the children by their initials and
identify their parents as Mother and Father. See Tex. Fam. Code Ann.
§ 109.002(d) (West Supp. 2017).


                                          2
      On September 6, 2017, the Department moved to modify managing

conservatorship, seeking to have itself removed and to have Mother appointed

as the children’s managing conservator. The Department’s supporting affidavit

stated that Mother had (1) maintained safe, stable, and appropriate housing,

(2) cooperated with the Department since the case’s inception, (3) maintained a

full-time job to support her children, and (4) attended school full time. As for

Father, the affidavit provided that he had (1) not maintained visitation with the

children since he and Mother had separated, (2) not started any of his services,

(3) not supported his children in any manner, and (4) not maintained contact with

the Department.

      The “Notice of Hearing” on the Department’s motion shows that it

anticipated a hearing the next day, September 7, 2017, at 3:00 p.m. The trial

court’s docket sheet, however, shows that on September 7, it reset the hearing

for a contest, and that on October 3, it rendered its final order appointing Mother

as managing conservator and Father as possessory conservator. The “Final

Order” is dated October 3, 2017.

      II. Father is not complaining about invited error.

      As a preliminary matter, the Department argues that Father cannot

complain about being appointed possessory conservator because possessory

conservatorship was one form of alternative relief he requested in his counter-

petition. That is, the Department asserts that the invited-error doctrine precludes




                                        3
him from complaining about relief that he specifically requested. We disagree

that the doctrine applies here.

      The invited-error concept in Texas jurisprudence is grounded in justice and

is dictated by common sense. See In re S.T., 508 S.W.3d 482, 487 (Tex. App.—

Fort Worth 2015, no pet.). The rule finds its roots in equity and is a form of

estoppel: it bars a party from encouraging a court to take a specific action and

then complaining on appeal that the trial court erred by taking it. Id. For a party to

be estopped from asserting a position in an appellate court based on actions that

it took in the trial court, the party must have unequivocally taken a position in the

trial court that is clearly adverse to its position on appeal. Id. at 488.

      Father’s counter-petition did not list several forms of relief, all of which

were equally acceptable to him. Rather, Father’s counter-petition listed various

forms of relief that he sought “without waiving any of the foregoing” earlier

requested relief, starting with his first choice (sole managing conservatorship);

then, if his first choice failed, his second choice (joint managing conservatorship);

and only then, if choice two failed, his third choice (possessory conservatorship).

Father presented his preferred alternatives in descending order.

      We would expect that if Father had agreed to waive his two requests for

various forms of managing conservatorship, the final order would have recited

that it was an agreed order, but it does not. Instead, the final order recites that

the trial court heard evidence and counsel’s arguments. Contextually, Father

contested the Department’s motion to modify precisely because the relief it


                                           4
sought was inconsistent with his requests for managing conservatorship in one

capacity or another and because it sought the appointment of Mother as

managing conservator, whereas Father’s counter-petition avoided specifically

advocating that Mother be appointed managing conservator. The dispute at trial

was whether Father would be excluded as managing conservator, and the

dispute on appeal is whether the trial court properly excluded Father as

managing conservator. We hold that Father did not unequivocally take a position

in the trial court that is clearly adverse to his position on appeal. Id. at 488.

      III. We consider only Father’s amended brief.

      Father’s initial brief argued that there was no section 153.131 finding

(explaining why a parent was not named managing conservator) as required by

the family code. See Tex. Fam. Code Ann. § 153.131 (West 2014). Because of

various briefing deficiencies, we requested that Father file an amended brief.

      Father then filed a second brief that he did not identify as either a

supplemental or amended brief, and in which he argued that the evidence is

legally and factually insufficient to support essentially an implied section

153.131 finding. Although similar, this is not the same argument raised in

Father’s initial brief, and the Department’s brief responds only to Father’s second

brief. We hold that Father’s second brief is an amended brief that replaced his

initial one. See Sullivan v. Abraham, No. 07-17-00125-CV, 2018 WL 845615, at

*6 n.5 (Tex. App.—Amarillo Feb. 13, 2018, no pet. h.) (mem. op.).




                                           5
      IV. Preliminary matters regarding the nature of the final hearing

      Father’s brief and the record present us with some preliminary matters to

resolve before addressing his actual sufficiency complaints.

      The “Final Order,” signed on October 3, recites that (1) all the parties

appeared; (2) the court reporter “duly reported” the testimony; and (3) the court

“heard the evidence and argument of counsel.” Everything about the “Final

Order” indicates a contested evidentiary hearing on the record.

      But in Father’s brief, he asserts that he did not appear at the October

3 hearing, so the trial court defaulted him, did not conduct a formal hearing, and

did not hear any evidence.

      Regarding appearances, we note that the “Final Order” refers only to

September 7 and says nothing about October 3. Nor does the trial court’s docket

sheet reflect who was present on October 3. So the record does not support

Father’s assertions—but it does not contradict them, either.

      The court reporter herself later filed a letter with us in which she stated that

the trial court did not conduct a hearing on the record. (The court reporter did not

include any dates, but only that blanket statement.) This letter does directly

contradict the recital in the “Final Order.”

      But in Father’s brief, he does not directly attack the absence of a reporter’s

record and does not argue that the procedures for waiving a reporter’s record

were not followed. See Tex. Fam. Code Ann. § 105.003(c) (West 2014); Tex. R.

App. P. 13.1(a). Absent controverting matter in the record, we presume


                                           6
procedural regularity. Cliff v. Bonner, 770 S.W.2d 97, 98 (Tex. App.—Corpus

Christi 1989, writ denied); see Casillas v. State Office of Risk Mgt., 146 S.W.3d

735, 738 (Tex. App.—El Paso 2004, no pet.). Thus, without an assertion and

record support that the reporter’s record was improperly waived, we will presume

that it was properly waived.

      In the context of what was clearly a default judgment, in the past we have

reversed for lack of a reporter’s record when the specific complaints attacked

evidentiary sufficiency. See In re M.E.P., No. 2-05-148-CV, 2006 WL 417096, at

*2–3 (Tex. App.—Fort Worth Feb. 23, 2006, no pet.) (mem. op.); see also Chase

Bank of TX, N.A. v. Harris Cty. Water Control & Improvement Dist. No. 109,

36 S.W.3d 654, 655–56 (Tex. App.—Houston [1st Dist.] 2000, no pet.) (op. on

reh’g). So whether the “Final Order” is a default judgment potentially makes a

difference to our disposition of Father’s appeal. But we cannot tell whether the

order being appealed resulted from a default; on its face and in its recitals,

nothing indicates a default judgment. The Department’s brief acknowledges that

there is no reporter’s record but otherwise sheds no insight on how the trial court

conducted the hearing. Mother did not file a brief.

      Appellants bear the burden to present a record showing error requiring

reversal. Cliff, 770 S.W.2d at 98. We presume procedural regularity. Id.; see

Casillas, 146 S.W.3d at 738. Beyond the bare assertions in Father’s brief, the

record does not show that he failed to appear for the October 3 hearing, nor does

the record show that the trial court did not hear evidence on October 3. Although


                                         7
the court reporter’s letter stating that the hearing was not on the record

contradicts the “Final Order,” we have no record to support—and no complaint—

that the reporter’s record was improperly waived in the trial court. On appeal,

Father bore the burden of persuasion, and he has not carried that burden. See

Cliff, 770 S.W.2d at 98; see also Bell v. Zurich Am. Ins. Co., 311 S.W.3d 507,

513 (Tex. App.—Dallas 2009, pet. denied) (op. on reh’g); Southern Ins. Co. v

Brewster, 249 S.W.3d 6, 13–14 (Tex. App.—Houston [1st Dist.] 2007, pet.

denied).

      Procedurally, then, we must treat the hearing as one at which all the

parties were present, where the trial court heard evidence and argument, and

where the reporter’s record of the hearing was presumably properly waived by

the parties and approved by the court.

      V. Without a reporter’s record, we presume the evidence supports the
         trial court’s rulings.

      The family code presumes that the appointment of “the parents of a child”

as joint managing conservators is in the child’s best interest. Critz v. Critz,

297 S.W.3d 464, 470 (Tex. App.—Fort Worth 2009, no pet.). To overcome this

presumption, a court must find that (1) appointing the parents would significantly

impair the child’s physical health or emotional development, (2) the parents have

exhibited a history of family violence, or (3) the parents voluntarily relinquished

care, control, and possession of the child to a non-parent for a year or more. Id.;

see Tex. Fam. Code Ann. § 153.131. A trial court’s conclusion that the parental



                                         8
presumption has been rebutted must be supported by specific factual findings

identifying the factual basis for the finding, and the failure to make such findings

constitutes error. Critz, 297 S.W.3d at 470. If, however, the trial court fails to

make such findings, any error is waived if the complaining party fails to request

additional findings. Id. at 472.

      In a nonjury trial, the trial court is the sole judge of the witnesses’ credibility

and of the weight to be given their testimony. In re F.M.B., No. 02-12-00153-CV,

2014 WL 70108, at *8 (Tex. App.—Fort Worth Jan. 9, 2014, no pet.) (mem. op.).

The trial court is also the judge of the proven facts and the reasonable inferences

to be drawn from those facts. Id. When presented with conflicting testimony, the

factfinder may believe one witness and disbelieve another, and where factual

findings and legal conclusions are neither filed nor timely requested, we imply all

the necessary findings to support the trial court’s judgment. Id.

      Absent a reporter’s record of the hearing on the Department’s motion to

modify, which we do not have, we must presume that the missing record

supports the trial court’s ruling. See id. at *10. As a result, Father cannot show

that the evidence presented at the hearing was legally and factually insufficient. 3

See id.



      3
       Although this might seem a harsh or Kafka-esque result if, in fact, the trial
court did not hold an evidentiary hearing at all, we cannot supplement the record
with conjecture but are instead bound to follow procedural rules and the
presumptions that flow from them.


                                           9
     VI. Conclusion

     We overrule Father’s contentions and affirm the trial court’s judgment.




                                                 /s/ Elizabeth Kerr
                                                 ELIZABETH KERR
                                                 JUSTICE

PANEL: SUDDERTH, C.J.; KERR and PITTMAN, JJ.

DELIVERED: April 5, 2018




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