                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-13-00464-CV


IN THE INTEREST OF R. R., A MINOR
CHILD


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          FROM THE COUNTY COURT AT LAW OF HOOD COUNTY
                     TRIAL COURT NO. CL213104

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                        MEMORANDUM OPINION1

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                              I. INTRODUCTION

      Appellant C.R. (Mother) appeals the trial court’s order granting Appellees

managing conservatorship of R.R. (Child), C.R.’s child. We affirm.




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       See Tex. R. App. P. 47.4.
                                II. BACKGROUND

      On August 1, 2012, Mother moved in with Appellees, whom she had never

met, because she was pregnant and had no place to stay. Mother told Appellees

that she “wasn’t ready to be a mother, and that she hasn’t got . . . the wild 20’s

out of the way.” While living with Appellees, she invited men over to have sex,

trying to induce labor. Mother gave birth to Child in November 2012.2 Within two

months, Mother tried to give Child to guests at a New Year’s party. Mother rarely

bathed, changed, or fed Child. She yelled at Child for keeping her up at night,

threw Child for spitting up on her, and left Child alone to take walks. On the only

occasion Mother had sole care of Child for more than one day, Child contracted a

urinary-tract infection and was taken to the hospital.

      While staying with Appellees, Mother twice admitted herself into a

psychiatric unit. During her second admission, Mother told the nurse that she felt

like committing suicide while holding Child in her arms. She told Appellees that

she has had suicidal thoughts her entire life and that she suffered from post-

traumatic stress disorder.     Mother claimed that some of her psychological

problems were caused by the rape trial; however, she had a long history of

mental instability.




      2
      Mother alleged that she was raped, resulting in her pregnancy, and a trial
was set for February 25, 2013. But DNA evidence later exonerated the only
suspect for the crime. Child’s father remains unknown.

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      On February 19, 2013, Mother signed an affidavit transferring her parental

rights to Appellees. The affidavit was irrevocable for sixty days and stated that

Mother agreed it was in Child’s best interest to live with Appellees. In March

2013, Mother moved to Killeen, and Child has lived with Appellees since then.

After moving, Mother never attempted to visit Child, rarely asked about Child’s

condition, and asked Appellees to stop sending her so many pictures of Child

because the pictures used too much of her phone’s data plan.

      On May 6, 2013, Appellees filed a suit affecting the parent–child

relationship, seeking to be named sole managing conservators of Child. Two

weeks later, Mother revoked her affidavit relinquishing her parental rights and

contested the suit. At trial, Mother testified that she had never held a job and

lived off Social-Security disability payments and her current boyfriend. She was

living with her boyfriend and was pregnant with their child.    Although Mother

admitted a lack of parenting skills and experience, she had not started any type

of parenting classes. Mother admitted that Appellees have taken good care of

Child, who has bonded with Appellees’ family.

      The trial court found that it would be in Child’s best interest to appoint

Appellees as joint managing conservators. Mother now appeals and asks this

court to reverse the trial court’s order and to appoint her as sole managing

conservator.




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                                 III. DISCUSSION

      Mother raises two issues on appeal. First, she argues that the trial court

abused its discretion because it failed to enter specific findings of fact and

conclusions of law. Second, she argues that the trial court abused its discretion

because the evidence was insufficient to rebut the parental presumption.

                             A. STANDARD OF REVIEW

      We review a trial court’s order of managing conservatorship for an abuse

of discretion. Critz v. Critz, 297 S.W.2d 464, 469 (Tex. App.—Fort Worth 2009,

no pet.). Legal and factual sufficiency are not independent grounds of error in

conservatorship cases but are relevant factors in deciding whether the trial court

abused its discretion. Newell v. Newell, 349 S.W.3d 717, 720–21 (Tex. App.—

Fort Worth 2011, no pet.). A trial court abuses its discretion if it acts arbitrarily

and unreasonably or without reference to guiding principles.        Iliff v. Iliff, 339

S.W.3d 74, 78 (Tex. 2011); Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). A

trial court also abuses its discretion when it does not analyze or apply the law

properly. Iliff, 339 S.W.3d at 78. When the trial court bases its decision on

conflicting evidence or when some substantive, probative evidence exists to

support the judgment, the trial court does not abuse its discretion. Id.

            B. SPECIFIC FINDINGS OF FACT AND CONCLUSIONS OF LAW

      First, Mother argues that the trial court abused its discretion by not

entering specific findings of fact and conclusions of law supporting the judgment.

In a county-court case heard without a jury, any party may request the court to

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state in writing its findings of fact and conclusions of law. Tex. R. Civ. P. 296. If

the trial court fails to timely file its findings and conclusions after a request, then

the requesting party must file with the clerk and serve on all other parties a notice

of past-due findings of fact and conclusions of law. Tex. R. Civ. P. 297. If the

requesting party fails to file a notice of past due findings, the party waives the trial

court’s error on appeal. Critz, 297 S.W.3d at 472; see also Watts v. Oliver, 396

S.W.3d 124, 130–31 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (holding

that party waived any error arising from trial court’s failure to file findings of fact

and conclusions of law when party filed notice of past-due findings one day after

deadline).

      Here, Mother requested that the trial court file specific findings of fact and

conclusions of law. Tex. R. Civ. P. 296. The trial court did not file findings and

conclusions as requested, but Mother never filed or served a notice of past due

findings. Because Mother did not timely file a notice of past due findings, she

waived the right to complain of this failure. We overrule Mother’s first issue.

                             C. PARENTAL PRESUMPTION

      Mother argues in her second issue that the trial court abused its discretion

because the evidence was legally and factually insufficient to rebut the statutory

parental presumption.         In conservatorship issues, the court’s           primary

consideration always is the child’s best interest. Tex. Fam. Code Ann. § 153.002

(West 2014). When a nonparent seeks sole managing conservatorship against a

parent, the Texas Family Code presumes that appointing the parent as the

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managing conservator is in the child’s best interest. Id. § 153.131 (West 2014).

Nonparents may rebut this presumption by showing that the appointment of the

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

it would significantly impair the child’s physical health or emotional development. 3

Id.

      As evidence, the nonparent must offer specific acts or omissions by the

parent that support a logical inference that some specific, identifiable behavior or

conduct of the parent will probably result in harm to the child.        Lewelling v.

Lewelling, 796 S.W.2d 164, 167 (Tex. 1990) (recognizing that statute requires

evidence of specific acts or omissions that would result in harm to the child).

There must be direct evidence either that placement of the child with the parent

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

that allows the fact-finder to reasonably reach that conclusion. In re De La Pena,

999 S.W.2d 521, 528 (Tex. App.—El Paso 1999, no pet.). The focus is on the

effect of the placement, not on the circumstances that produced the placement.

In re R.T.K., 324 S.W.3d 896, 902 (Tex. App.—Houston [14th Dist.] 2010, pet.

denied). Acts of nonsupport, physical abuse, severe neglect, abandonment, drug

or alcohol abuse, and immoral behavior can impair the child’s health. In re

C.R.T., 61 S.W.3d 62, 67 (Tex. App.—Amarillo 2001, pet. denied).


      3
      The Family Code provides two other methods of rebutting the parental
presumption, but those methods do not apply here. Tex. Fam. Code Ann.
§§ 153.131(b), .373 (West 2014).

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      The record supports the trial court’s implied finding that Child’s placement

with Mother would significantly impair Child’s physical health or emotional

development. Mother has a history of mental disorders, suicidal thoughts, and

postpartum depression, which she admitted may return. Also, Mother has never

held a job and frequently moves. See, e.g., In re N.L.D., 412 S.W.3d 810, 822

(Tex. App.—Texarkana 2013, no pet.) (holding that parental presumption was

rebutted because parent had history of drug use, irresponsibility, frequent moves,

and bad judgment); C.R.T., 61 S.W.3d at 68 (holding that parental presumption

was rebutted because parent depended on others for income, abandoned child,

and was irresponsible). When Mother lived with Child, she rarely fed, bathed,

changed, or helped care for Child.             When she did, she became easily

frustrated—yelling at Child and throwing Child on one occasion. She took long

walks at odd hours, leaving Child alone, and planned to continue to do so as

therapy. Ray v. Burns, 832 S.W.2d 431, 433–34 (Tex. App.—Waco 1992, no

writ) (holding that parental presumption was rebutted because parents had

unstable, disorganized, and chaotic lifestyle). After Child was born, Mother tried

giving Child to acquaintances and later voluntarily transferred her parental rights

to Child in favor of Appellees. After leaving Child with Appellees, she never tried

to visit Child or otherwise tried to stay involved in Child’s life. She never took an

interest in learning to parent and has not taken any parenting classes.               See

Danet v. Bhan, No. 13-0116, 2014 WL 2896005, at *4 (Tex. June 27, 2014)

(holding   that   parent’s   abandoning,       failing   to   visit,   and   inconsistently

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communicating with child constituted sufficient evidence that appointment of

parent as managing conservator would impair child under section 153.131(a)).

Further, Mother’s sole attempt to parent Child alone resulted in Child’s admission

to the hospital for a urinary tract infection.

      These specific acts and behaviors could have reasonably convinced the

trial court that the placement of Child with Mother was not in Child’s best interest

because it would significantly impair Child’s physical health or emotional

development. The evidence in support of these findings was more than a mere

scintilla and was not so weak or so contrary to the overwhelming weight of the

evidence that the trial court’s implied findings should be set aside. See In re

W.M., 172 S.W.3d 718, 724–25 (Tex. App.—Fort Worth 2005, no pet.) (holding

traditional sufficiency standard applies in determining whether trial court had

sufficient information upon which to exercise its discretion). In short, the trial

court had sufficient information upon which to exercise its discretion.          Id.

Because the evidence supporting the trial court’s implied findings was legally and

factually sufficient, we hold that the trial court did not abuse its discretion by

implicitly finding that appointing Mother as managing conservator would not be in

Child’s best interest because it would significantly impair Child’s physical health

or emotional development. See, cf., In re N.W., No. 02-12-00057-CV, 2013 WL

5302716, at *12–14 (Tex. App.—Fort Worth Sept. 19, 2013, no pet.) (mem. op.)

(finding sufficient evidence to support trial court’s custody determination). We

overrule Mother’s second issue.

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                           IV. CONCLUSION

     Having overruled both of Mother’s issues, we affirm the trial court’s

judgment.



                                             /s/ Lee Gabriel

                                             LEE GABRIEL
                                             JUSTICE

PANEL: GARDNER, WALKER, and GABRIEL, JJ.

DELIVERED: August 14, 2014




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