                                NUMBER 13-18-00274-CV

                                   COURT OF APPEALS

                       THIRTEENTH DISTRICT OF TEXAS

                          CORPUS CHRISTI - EDINBURG

                         IN THE INTEREST OF C.I.B., A CHILD


                   On appeal from the County Court at Law No. 5
                            of Nueces County, Texas.



                           MEMORANDUM OPINION
                Before Justices Benavides, Hinojosa, and Tijerina
                  Memorandum Opinion by Justice Benavides

        By two issues, appellants Mother and Father argue that the evidence was legally

and factually insufficient to support the trial court’s decision to appoint the Department of

Family and Protective Services (the Department) as C.I.B.’s1 sole managing conservator

and not to appoint the parents as possessory conservators. We affirm.




        1
           To protect the identity of the minor child who is the subject of this appeal, we refer to the parties
by their initials. See TEX. R. APP. P. 9.8; TEX. FAM. CODE ANN. § 109.002(d). Appellants are Mother I.E.B.
and Father P.B.
                                     I.   BACKGROUND

A.       Removal

         In October 2016, the Department filed a petition to remove nine-year-old C.I.B.

from her parents’ care and to place her with her maternal grandmother, P.E. The affidavit

filed in support of the petition by LaToya Moore, a Department caseworker, alleged that:

     •   Mother was abusing alcohol and taking medication at the same time;

     •   Mother had arrived at school drunk to pick up C.I.B. multiple times;

     •   Mother has a history of drug and alcohol abuse;

     •   C.I.B. missed school to stay home and take care of her mother in March 2016;

     •   Mother refused to take a drug test but agreed to complete a substance abuse
         program and undergo random drug screenings;

     •   On June 18, 2016, the Corpus Christi Police Department (CCPD) was called to
         Mother and Father’s residence due to a report of a disturbance. The call stated
         that Father was intoxicated and a window was broken. Mother stated that Father
         placed her in a chokehold. Mother stated she never contacted the police about
         past assaults but admitted to other occurrences. Father was arrested. C.I.B. was
         present;

     •   On September 9, 2016, neighbors heard Mother and Father fighting and stated
         that law enforcement has been called to their home;

     •   P.E. received a call from Mother on September 9, 2016, who said that she and
         Father were hitting each other over the head. P.E. called the Department and her
         contact advised her to call CCPD.

     On September 12, 2016, the Department’ s investigator and Moore met with Mother

and C.I.B.’s paternal grandfather, Israel Gomez, to address concerns over the domestic

disputes that had occurred. Father was in the hospital for seizures. Mother complained

that her case had been open for four months and she no longer wished to comply; she

refused to sign a safety plan; and refused to place C.I.B. out of her house to ensure


                                             2
C.I.B.’s safety. Gomez told Moore that C.I.B. deserves to be raised in a more normalized

environment and that if C.I.B. goes with him he does not have to comply with Department

restrictions or assessments. He stated he would not limit Mother and Father’s access to

C.I.B. and has no plan to ensure that Mother and Father get the services they need, as

those are not priorities for him.

         On September 15, 2016, Mother and Father signed an authorization for non-parent

or voluntary caregiver agreement allowing C.I.B. to stay with P.E. until further notice from

the Department.

         On September 23, 2016, CCPD Officer Eric Huerta was contacted by maternal

grandmother P.E. when Mother showed up at P.E.’s home to remove C.I.B. from her care.

Mother had a strong odor of alcohol on her breath and her speech was slurred. Mother

was with Gomez who was sober. Officer Huerta advised Mother it was not in C.I.B.’s best

interest to leave with Mother in her condition, but he could not prevent her from taking

C.I.B.

         According to Moore’s affidavit, C.I.B. outcried to witnessing domestic violence

between her mother and father on October 5, 2016, and reported that:

         she has witnessed her father hit her mother and has seen her mother throw
         plates at her father. She has witnessed her parents consuming alcohol and
         stated they acted weird and scare her. She is afraid to return home to her
         parents and she feels safe with her maternal grandmother, but her parents
         pick her up and make her go home. C.I.B. reported that they always fight
         and her father advised her not to tell anyone what happens in the home.

B.       Department’s Pre-Removal Efforts

         In April 2016, when the Department first investigated allegations of neglect of

C.I.B., the Department recommended that Mother and Father complete substance abuse


                                             3
services, random drug testing, individual counseling as needed for C.I.B., and one-on-

one parenting classes. In addition, Father was referred for services as the victim of

domestic violence. Mother was referred for counseling with a psychiatrist for her ongoing

mental health issues that required medication. Both parents denied allegations of

domestic violence and substance abuse and were initially resistant to services but agreed

to comply.

       During Father’s May 31, 2016 substance abuse assessment he admitted to using

cocaine over the past two years and to recreational use of marijuana. He also exhibited

signs of anxiety. The counselor recommended he complete an outpatient program to

address his substance abuse, anger issues, family dynamics, and stress.

       Mother was also recommended to complete an outpatient relapse prevention

program to address her alcoholism, decision-making skills, and family dynamic issues.

Mother admitted to drinking alcohol while taking her medication for bipolar depression.

Over several months, the parents completed four group sessions, four individual

sessions, and failed to complete any other services.

       Moore’s affidavit included prior Department history and arrest history for Mother

and Father. Mother has prior history with the Department for neglectful supervision

stemming from a report in 2010 when she left three-year-old C.I.B. and another older

child, L.B., home alone for several hours while Mother was intoxicated. Mother admitted

leaving the children alone, which resulted in her arrest. There was another allegation that

she slapped L.B., and the Department found reason to believe that allegation.

       Mother had a criminal history consisting of an arrest in January 2010 for the offense

of assault causing bodily injury to a family member; a November 2013 arrest for a Class

                                             4
C misdemeanor liquor violation; and in November 2015 another arrest for an assault

causing bodily injury to a family member. Father was arrested on September 3, 2016 for

assault by contact.

C.     Pre-Trial

       After C.I.B. was removed, she remained with her grandmother until the trial. She

did well in school and by time of trial, C.I.B. was eleven years old. Her attorney ad litem

visited her several times and reported to the trial court in July and September 2017. In

each report, the ad litem stated that C.I.B. wanted to live with her grandmother, and the

ad litem recommended that C.I.B. remain in her current placement. While C.I.B. was with

P.E., her attendance in school was good and she achieved high marks, including the A

honor roll in fourth grade.

       In the Department’s November 16, 2017 report to the trial court, it noted that:

          •    Father was arrested on March 12, 2017, for terroristic threat, resisting
               arrest, search, or transport. The victims included Mother;

          •    Father had two positive urinalyses for alcohol;

          •    Mother had a negative drug test; and that

          •    Both were requested to drug test on November 28, 2017 for urinalysis and
               hair follicle but failed to do so.

       In December 2017, the Department filed a motion for protective order for a

psychological evaluation which the trial court granted. The sealed psychological

evaluation was not trial exhibit and not made part of the record on appeal.

D.     Trial

       On March 28, 2018, the Department filed a report with the trial court ahead of that

day’s trial in which the Department detailed Mother and Father’s progress with services:

                                             5
            •   Mother was charged with failing to maintain financial responsibility, issued
                a citation and released, but her vehicle was impounded on February 21,
                2018;

            •   Mother took an oral swab drug test on February 28, 2018, which was
                negative;

            •   Mother and Father were requested to drug test March 21, 2018, but could
                not go that date. The case worker provided alternate dates the following
                week for urinalysis and hair follicle, but they did not test.

       Trial was held that afternoon. The Department presented its caseworker, Evonne

Flores. Mother and P.E. also testified. Father was not present; according to Mother,

Father was at home sick.

       1.       Flores’s Testimony

       Flores testified that Mother and Father had not completed services, although

Mother was closer to completion than Father. The Department did not seek to admit

caseworker Moore's removal affidavit into evidence.

       Father needed to complete eleven individual substance abuse counseling

sessions and twelve group counseling sessions as well as a domestic violence program.

He was enrolled in a domestic violence program but was dropped for noncompliance. He

had over a year to complete the counseling but had not done so. Father had not attended

visitation with C.I.B. for the past three months and before that was inconsistent. Visitation

was supervised and not at P.E.’s home. According to Flores, Father was not able to

provide a safe home for C.I.B., although she did not explain her reasoning for that

conclusion.

       Flores testified that Mother also failed to complete her service programs. Mother

had been attending her substance abuse classes, but still had completed only half.


                                              6
Mother still needed eight more individual counseling sessions and fourteen hours of group

counseling. She was initially inconsistent with her attendance and was dismissed from

one substance abuse program. She was in her second substance abuse program.

      Mother completed the domestic violence program ten days before the trial. Yet, in

December 2017, three months before trial, CCPD was called to Mother and Father’ s

residence. According to Flores, Mother was choking Father and punched him in the face.

No one was arrested.

      Flores testified that she was concerned about Mother’s interactions with C.I.B.

during visitation. When Mother was present, she did not always interact with C.I.B.; she

stepped out of the room periodically, and they do not know the reason, whether it was for

water or a smoke or something else.

      According to Flores, C.I.B. wanted to live with P.E. She felt safe there and feared

that if she went home, her parents would fight. She remembered being scared living with

them. However, C.I.B. still wanted to see her parents.

      Flores testified that placing C.I.B. with Mother and Father would endanger C.I.B.’s

emotional or physical safety. P.E. has been certified as a foster parent and has provided

the only stable home C.I.B. has ever known, according to Flores. On cross-examination

by Mother’s attorney, Flores was asked about the psychiatric assessment for Mother and

her diagnosis. Flores could not recall the diagnosis, but she was aware that both Mother

and Father had health issues. Flores recalled that Mother had been in the hospital at

some point during these proceedings and that Father has had seizures. Mother was

diagnosed with bipolar disorder and it was recommended that she seek treatment, but

Flores was unaware that Mother had ever done so. No exhibits were introduced through

                                           7
Flores.

       2.     Mother’s Testimony

       Mother testified that she wanted C.I.B. to return home. When Mother’s counsel

asked her whether she had talked to a Department caseworker about services, Mother

responded as follows:

       They [the caseworkers] all stated that they needed training. I told them that
       I was not willing to give my time; that they did not need to show up at all;
       that they should not be at my home; that we do not want to take part in any
       ultimatums. We asked them not to return. We told them we didn’t want to
       be part of any allegation. We were promised that they would close the case
       and this be put behind them. We feel that this is a bum rush of our
       relationship. They are forcing us—they gave us an ultimatum in our
       marriage to separate. They violated our rights of privacy. They gave us an
       ultimatum to take away our child right off the bat. They violated the right to
       stay married. They violated my right to have [Father] stay in my town home
       as a roommate. They violated my rights as a mom who is teaching a minor.
       And, because of that, I would like to share something here that states I do
       not consent to foster care, adoption, or terminating parental or biological
       rights.

       In response to the question, “What would you like Judge McCoy to do after this

hearing?” Mother responded:

       To realize that I am being abused here along with my child and being
       separated. Our family is separated and the separation is causing a down
       spiral in health for all of us. It’s causing us to neglect what we had originally
       wanted. We wanted our daughter to grow up knowing her rights, the one
       that I just–that I just gave. Never minding the gender, my children have to
       know that there is no consent with me here today for foster care, biological
       rights being terminated, parental rights or anything to that extent.

       Mother responded to a question about health problems she and Father were

experiencing when the trial court first ordered services:

       The health problems—well, moving from apartment to apartment, one. We
       had allergies, yeah. So, we had to, you know, open the door, close the door.
       I mean, it had been three or four years just trying to—just trying to make
       sure that people we didn’t want show up at our doorsteps like Jehovah’s

                                              8
       Witnesses, Mormons, and it was constant. It was constant visitation. And
       then, all of a sudden, CPS shows up and we ask them please. You know,
       we need a break, we’re trying to move in, we’re trying to raise our family.
       Please, let us be. They showed up at my father’s all the way in Ben Bolt and
       did—they did a background search, you know. And they’re forcing us to
       consent. And they’re forcing us to take drug tests.

       ...

       And, so, I fear for my life because ever since CPS has been involved, I have
       had policemen document things incorrectly. Policemen not wanting to
       document at all. Stating they don’t have to document anything. EMT’s not
       wanting to provide oxygen. Fire trucks showing up for absolutely no reason.
       And CPS consistently showing up. Now, I did ask last time that I would take
       a drug test at a cheek swab–as a cheek swab, but you know, we don’t—we
       don’t want to be abused in the courtroom pulling out hair, cutting out my
       hair, cutting out his hair.

       ...

       Well, first of all, I can tell you that in the past, they were putting a Band-Aid
       over the situation and refused to leave. They kept hiring a new person to
       show up at my doorstep and they just kept putting the same phrases on the
       paper. I could tell over and over again and I understand that the Court had
       ruled the last session to be short to cover up more information and I fear for
       my life at this point. I hope you understand. The policemen are towing my
       cars. Not letting me get anxiety assistance. Leaving me stranded. CPS is
       leaving me stranded. They don’t give me enough bus passes. I don’t want
       to cooperate with this anymore. I don’t give consent. I want my daughter
       home.

       Mother denied that either she or Father had drug or alcohol problems and denied

there was any family violence. She testified that Father worked for Labor Max, his job

required him to be available to work six days a week, and that he had seizures that

interfered with his ability to function. Mother testified it would be in C.I.B.’s best interest

to be returned to her and Father.

       On cross-examination by the Department’s attorney, Mother defended her

relationship with Father:


                                              9
      Q. Ma’am, how long have you and [Father] been together?

      A. I think I object to that since I feel that I’m being bombarded to end my
      relationship through CPS’s involvement.

      THE COURT: Okay. You have to answer the question, okay.

      A. Can you repeat the question?

      Q. (By Ms. Delgado) How long have you and [Father] been together?

      A. 13 years and, thanks to CPS, I can say that you all’s group therapy can
      definitely shorten a marriage quicker than the blink of an eye.

      Q. Okay. How would you describe your relationship with [Father]? Is it a
      good relationship?

      A. It was a wonderful relationship, yes.

      Q. Okay. Do you recall in October of 2016 when this case first got filed that
      you and [Father] were involved in some physical altercations? You all were
      fighting?

      A. I also object to that statement. It was—it was someone’s allegation that
      we were involved in domestic violence. Like I said, I’m fearing for my life
      with police involved. They are constantly jotting down–well, not police, but
      the people—when you call 911 for help and the dispatcher, they
      automatically put domestic violence. And I say why are you here, and they
      say, well, domestic violence. I said I never said that. I’ll tell them. I never
      said that. I never gave a statement to give any of those words. And if there
      was—if there was an argument that was overheard, you have to remember
      that I am trained in martial arts, jiu jitsu, Brazilian jiu jitsu. And we do—are
      an open couple and we do train [C.I.B.] martial arts and pep squad and
      cheerleading and anything active that deserves a nice pant and healthy
      heart rate, we’re for it. But to have an allegation to say that we are constantly
      in domestic violence, that is incorrect.

      When asked why if she knew why Father had not completed the domestic violence

classes, Mother responded:

      Like I said, we were rushed at our doorstep to be forced to involve—to
      cooperate with CPS to train new employees and I feel we shouldn’t be here.
      My husband is sick and tired. Physically sick and tired of telling people, no,
      please go away. Please leave us alone.

                                             10
       ...

       I wouldn’t—I wouldn’t—I wouldn’t take any longer to say I want [C.I.B.]
       home, please. It’s the best place for her. I’m her mother. You know, I’ve
       read you—I’ve already repeatedly read that I don’t give consent to foster
       care, adoption, terminating parental rights, giving away biological rights at
       all. I want my daughter home, please.

       3.     P.E.’s Testimony

       P.E. testified that several weeks before trial, Mother called P.E. crying that her

husband was abusing her and that the police were there and told her to move out if he

was abusing her, but she stayed. According to P.E., the call from Mother was part of a

consistent pattern between Mother and Father. P.E. testified that at the last court hearing

Father “reeked of alcohol” and he consistently has a problem with alcohol which

contributes to domestic violence in their house. P.E. buys toys and dinner for C.I.B. and

her parents for the visitations to facilitate the relationship. C.I.B. tells P.E. that Mother

sometimes just draws in the coloring book and does not interact with C.I.B. Father

interacts with C.I.B. better. P.E. believes that Mother has some mental health issues that

interfere with her ability to express herself and that also cause some friction between the

P.E. and Mother. P.E. also acknowledged that Mother was an alcoholic who would show

up at C.I.B.’s school intoxicated. Mother’s alcoholism was severe enough that she was

very ill with kidney and liver disease. As far as P.E. knows, Mother is not currently drinking

and is taking her medication.

       P.E. testified that Mother, Father, and C.I.B. all love each other, but Mother and

Father’s behavior are not best for C.I.B.’s well-being.




                                             11
       The Department sought appointment as permanent managing conservator with

placement remaining with P.E.. P.E. joined in the recommendation, as did the ad litem.

Mother and Father sought a return of C.I.B. to them. The trial court issued its final order

appointing the Department permanent managing conservator of C.I.B., finding that

appointment of the parents would not be in C.I.B.’s best interest because it would

significantly impair the child’s physical health or emotional development. The trial court

also did not appoint the parents as possessory conservators:

       because the Court finds such appointment would not be in the best interest
       of the child and that possession or access by th[e] parent[s] would not be in
       the best interest of the child and that possession or access by this parent
       would endanger the physical or emotional welfare of the child.

It is from that order this appeal was timely perfected. Both parents were granted only

limited access to C.I.B.

                            II.   SUFFICIENCY OF THE EVIDENCE

       By two issues, Mother and Father argue that the evidence was legally and factually

insufficient to support the trial court’s decision to appoint the Department as C.I.B.’s sole

managing conservator and to not appoint the parents as possessory conservators.

A.     Standard of Review

       Conservatorship determinations made after a bench trial are “subject to review

only for abuse of discretion and may be reversed only if the decision is arbitrary and

unreasonable.” In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In re J.J.G., 540 S.W.3d

44, 55 (Tex. App.—Houston [1st Dist.] 2017, pet. denied). To determine whether a trial

court abused its discretion, the appellate court must decide whether the court acted

without reference to any guiding rules or principles, that is, whether its decision was


                                             12
arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); In re M.M.M.,

307 S.W.3d 846, 849 (Tex. App.—Fort Worth 2010, no pet.). “An abuse of discretion does

not occur when the trial court bases its decisions on conflicting evidence,” nor does an

abuse of discretion occur so long as there is some evidence of substantive and probative

character to support the trial court’s decision. In re M.M.M., 307 S.W.3d at 849 (citing In

re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding), and Butnaru v. Ford Motor

Co., 84 S.W.3d 198, 211 (Tex. 2002)).

       Legal and factual insufficiency challenges are not independent grounds for

asserting error in custody determinations but are relevant factors in assessing whether

the trial court abused its discretion. In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—

Houston [14th Dist.] 2009, no pet.). In determining whether there has been an abuse of

discretion because the evidence is legally or factually insufficient to support the trial

court’s decision, we engage in a two-pronged inquiry: (1) did the trial court have enough

information upon which to exercise its discretion; and (2) did the trial court err in applying

its discretion? In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no pet.);

In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet. denied); see also

Lee v. Melinda A.S., No. 02-14-00135-CV, 2015 WL 7820584, at *10 (Tex. App.—Fort

Worth Dec. 3, 2015, no pet.) (mem. op.). The traditional sufficiency review comes into

play with regard to the first question. In re W.M., 172 S.W.3d at 725; In re T.D.C., 91

S.W.3d at 872. With regard to the second question, we determine, based on the elicited

evidence, whether the trial court made a reasonable decision. In re W.M., 172 S.W.3d at

725; In re T.D.C., 91 S.W.3d at 872.



                                             13
       Under a legal sufficiency review, we consider only the evidence and inferences

that support a factual finding in favor of the party having the burden of proof in a light most

favorable to such findings and disregard all evidence and inferences to the contrary to

determine whether there is any probative evidence which supports the finding. Garza v.

Alviar, 395 S.W.2d 821, 823 (Tex. 1965); Corrales v. Dep’t of Family & Protective Servs,

155 S.W.3d 478, 488 (Tex. App.—El Paso 2004, no pet.). “[T]he fact finder also enjoys

the right to resolve credibility issues and conflicts within the evidence. It may freely choose

to believe all, part, or none of the testimony espoused by any particular witness.” In

Interest of R.D.S., 902 S.W.2d 714, 716 (Tex. App.—Amarillo 1995, no writ) (internal

citations omitted); see In re E.S.M., 550 S.W.2d 749, 757 (Tex. App.—Houston [1st Dist.]

1977, writ ref’d n.r.e.) (stating that the judge was entitled to disbelieve the testimony of

the biological parent).

       When reviewing a claim of factually insufficient evidence, we must consider all of

the evidence and determine whether the finding is so contrary to the great weight and

preponderance of the evidence as to be manifestly unjust. See In re N.L.D., 412 S.W.3d

810, 818 (Tex. App.—Texarkana 2013, no pet.); Corrales, 155 S.W.3d at 488–89.

B.     Applicable Law

       Sections 153.002, 153.005, and 153.131 of the Texas Family Code outline the

general standards for determining conservatorship. See TEX. FAM. CODE ANN. §§ 153.002,

153.005, 153.131. The child’s best interest is always the primary consideration. See id.

§ 153.002. When a managing conservator is appointed, it must be “a parent, a competent

adult, an authorized agency, or a licensed child-placement agency.” Id. § 153.005. The

Code creates a rebuttable presumption that a parent will be named a child’s managing

                                              14
conservator, unless the court finds that such appointment would not be in the child’s best

interest “because the appointment would significantly impair the child’s physical health or

emotional development” or finds that there is a history of family violence involving the

parents. Id. § 153.131. Impairment of the child’s physical health or emotional development

must be proved by a preponderance of the evidence showing “specific actions or

omissions of the parent that demonstrate an award of custody to the parent would result

in physical or emotional harm to the child.” Lewelling v. Lewelling, 796 S.W.2d 164, 167

(Tex. 1990); In re J.Y., 528 S.W.3d 679, 687 (Tex. App.—Texarkana 2017, no pet.).

Generally, such things as physical abuse, severe neglect, drug or alcohol abuse, parental

instability, exposure to domestic violence, or an unstable, disorganized, chaotic lifestyle

put a child at risk of emotional or physical harm. See In re Mitchell, 585 S.W.3d 38, 49

(Tex. App.—Texarkana 2019, no pet.); In re J.Y., 528 S.W.3d at 687; In re S.T., 508

S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.).

       Section 263.404 of the Family Code allows the court to render a final order

appointing the Department as the child’s conservator without terminating parental rights

if the court finds “that (1) a parent’s appointment would not be in the child’s best interest

because the appointment would significantly impair the child’s physical health or

emotional development, and (2) appointment of a relative of the child or another person

would not be in the child’s best interest.” TEX. FAM. CODE ANN. § 263.404(a). In deciding

whether to appoint the Department without terminating the parents’ rights, the court must

take the following factors into consideration:

       (1) that the child will reach 18 years of age in not less than three years;

       (2) that the child is 12 years of age or older and has expressed a strong

                                             15
       desire against termination or being adopted;

       (3) that the child has special medical or behavioral needs that make
       adoption of the child unlikely; and

       (4) the needs and desires of the child.

Id. § 263.404(b).

C.     Permanent Managing Conservatorship

       Mother and Father initially focus on the presumption in their favor embodied in the

family code. See id. § 153.131. That presumption is rebuttable if the trial court finds either

that such appointment would not be in the child’s best interest “because the appointment

would significantly impair the child’s physical health or emotional development” or finds

that there is a history of family violence involving the parents. Id. In this case, there is

evidence that the parents each perpetrated family violence upon each other, some of

which occurred when C.I.B. was present and continued after the parents were receiving

services. Moreover, Father had not completed his domestic violence classes and had

been dismissed from one program for noncompliance during the nearly two-year period

that the parents received services. Additionally, the trial court found that appointing the

parents as conservators would significantly impair the child’s physical health or emotional

development. As a result, the presumption is rebutted if there is sufficient evidence to

support the trial court’s finding. See id. § 153.131(b).

       P.E. testified that C.I.B. did not want to return to living with her parents because

she was scared of them fighting. Her testimony was supported by the attorney ad litem’s

reports. There was independent evidence of domestic violence in the form of neighbors’

reports and police calls, as well as P.E.’s testimony that Mother consistently called to


                                             16
report that Father abused her. Although Mother denied any episodes of domestic violence

between her and Father, and denied any substance abuse by either of them, the trial

court had the opportunity to hear the evidence and judge the credibility of the witnesses.

See Townsend v. Vasquez, 569 S.W.3d 796, 808 (Tex. App.—Houston [1st Dist.] 2018,

pet. denied); Hatteberg v. Hatteberg, 933 S.W.2d 522, 530 (Tex. App.—Houston [1st

Dist.] 1994, no writ). Father admitted to his substance abuse counselor that he had used

cocaine for two years and marihuana recreationally. He did not complete his substance

abuse counseling, and there was evidence he continued to abuse alcohol. Father failed

to take the two most recently ordered drug tests and did not appear in court for the trial.

Similarly, Mother did not take the most recently ordered drug test.

       The family code also provides that the trial court may appoint the Department as

permanent managing conservator if appointment of a parent would “not be in the child’s

best interest because the appointment would significantly impair the child’s physical

health or emotional development” and the appointment of a relative or another person

would not be in the child’s best interest. TEX. FAM. CODE ANN. § 153.131(a). The trial court

was also required to consider several other factors including whether she was within three

years of eighteen, her mental and emotional state, her adoptability, and her needs and

desires. Id. § 263.404(b). The trial court considered that at the time of trial, C.I.B. was not

yet twelve, but over many months had expressed her strong desire to continue to live with

P.E. The sole reason not to appoint the maternal grandmother as her permanent

managing conservator was financial. The trial court stated that it planned to revisit the

conservatorship decision regarding P.E. sometime after P.E. qualified.



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       Based upon the evidence of Mother and Father’s limitations, their turbulent

relationship, their inability and refusal to complete services over a seventeen-month

period, Mother's failure to interact with C.I.B. fully during visitation, continued evidence of

Father’s alcohol abuse, and continued domestic violence incidents, the trial court did not

abuse its discretion in appointing the Department as permanent managing conservator.

See In re Mitchell, 585 S.W.3d at 49 (discussing domestic violence, alcohol abuse, and

a tumultuous relationship between the parents among other reasons to find impairment

of the child’s emotional development). Nor did the trial court abuse its discretion by

impliedly finding that the parental presumption was rebutted, and appointment of a parent

as permanent managing conservator would “not be in the child’s best interest because

the appointment would significantly impair the child’s physical health or emotional

development.” See id.

       We overrule appellants’ first issue.

D.     Possessory Conservator

       By their second issue, Mother and Father challenge the legal and factual

sufficiency of the evidence to support the trial court’s decision not to appoint them as

possessory conservators in light of the family code’s presumption that parents who are

not appointed as managing conservators should be appointed as possessory

conservators. See TEX. FAM CODE ANN. § 153.191. This presumption is overcome by a

finding that “the appointment is not in the best interest of the child and that parental

possession or access would endanger the physical or emotional welfare of the child.” We

have already held that the trial court did not abuse its discretion in determining that

possession would endanger C.I.B.’s physical or emotional welfare. Now we must consider

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whether limiting access by Mother and Father was in C.I.B.’s best interest or was an

abuse of discretion.

       C.I.B. requested that she not be returned to her parent’s home, thus requesting

that the trial court limit her parent’s access to her. Father had not completed his substance

abuse counseling nor his domestic abuse counseling and Mother had not completed her

substance abuse counseling either. Neither parent had complied with recent requests for

drug testing. Father had not seen C.I.B. in three months. Mother did not appear to have

followed up for all of her mental health recommendations, although there were mental

health records filed under seal available to the trial court, but not brought up on appeal.

Based upon this record, we cannot say that the trial court abused its discretion in finding

that “parental possession or access would endanger the physical or emotional welfare of

the child” and that limiting access to C.I.B. by Mother and Father was in her best interest.

See Corrales, 155 S.W.3d at 488–89 (stating that if after considering all the evidence, the

judgment is factually sufficient if it is not against the great weight and preponderance of

the evidence).

       Accordingly, Appellants’ second issue is overruled.

                                    III.   CONCLUSION

       We affirm the judgment of the trial court.



                                                                GINA M. BENAVIDES,
                                                                Justice



Delivered and filed the
12th day of March, 2020.

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