                                   Fourth Court of Appeals
                                           San Antonio, Texas
                                      MEMORANDUM OPINION

                                               No. 04-19-00585-CV

                                  IN THE INTEREST OF A.M.T., a Child

                       From the 225th Judicial District Court, Bexar County, Texas
                                    Trial Court No. 2018-PA-01238
                               Honorable Richard Garcia, Judge Presiding

Opinion by:       Luz Elena D. Chapa, Justice

Sitting:          Rebeca C. Martinez, Justice
                  Luz Elena D. Chapa, Justice
                  Beth Watkins, Justice

Delivered and Filed: December 18, 2019

AFFIRMED

           A.M.T.’s parents, Danielle and Deron, appeal a final order appointing A.M.T.’s paternal

grandmother, A.B., as A.M.T.’s sole permanent managing conservator and appointing them

possessory conservators. 1 We affirm the trial court’s order.

                                          PROCEDURAL BACKGROUND

           In June 2018, the Texas Department of Family and Protective Services filed an original

petition for A.M.T.’s protection and conservatorship, and for termination of Danielle’s and

Deron’s parental rights. A.M.T. was removed and placed with his paternal grandmother, A.B. A.B.

did not file a petition in intervention and was not otherwise made a party to the proceedings.



1
 To protect the identity of minor children, we refer to the appellants by their names and the child and his other relatives
by their initials or other references. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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       The case proceeded to a bench trial. At trial, the Department no longer sought the

termination of Danielle’s and Deron’s parental rights. Instead, the Department asked the trial court

to appoint A.B. as A.M.T.’s sole permanent managing conservator and Danielle and Deron as

possessory conservators. Several witnesses—including two caseworkers, A.B., Deron’s sister,

Danielle, and Deron—testified. After taking the case under advisement, the trial court signed a

final order granting the relief the Department requested at trial. Danielle and Deron appeal.

                                         ISSUES ON APPEAL

       In her appellant’s brief, Danielle raises two issues. First, she argues the trial court erred by

appointing a nonparty as A.M.T.’s sole permanent managing conservator. Second, she argues the

trial court abused its discretion by appointing her a possessory conservator. In his appellant’s brief,

Deron similarly argues the trial court abused its discretion in finding that appointing A.B. as sole

permanent managing conservator is in A.M.T.’s best interest.

A. Appointment of Nonparty as Sole Permanent Managing Conservator

       This court recently held that when a trial court does not order termination of a parent-child

relationship, the “trial court [has] authority to appoint a nonparty managing conservator.” In re

M.I.A., No. 04-19-00227-CV, 2019 WL 5030241, at *10 (Tex. App.—San Antonio Oct. 9, 2019,

no pet. h.). Furthermore, trial by consent “can cure lack of pleading.” Bos v. Smith, 556 S.W.3d

293, 306 (Tex. 2018). A.B. testified, without objection, that she was seeking managing

conservatorship. The Department also requested this relief without objection. Because the parties

litigated the appointment of A.B. as managing conservator without objection, the issue was tried

by consent. See id. We overrule this issue.

B. Conservatorship

       Danielle and Deron also argue the trial court abused its discretion in appointing them as

joint possessory conservators.


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        1. Applicable Law & Standard of Review

        In a termination proceeding, “If the court does not order termination of the parent-child

relationship, the court shall: (1) deny the petition; or (2) render any order in the best interest of the

child.” TEX. FAM. CODE § 161.205; see M.I.A., 2019 WL 5030241, at *10. Generally, a child’s

parents must be appointed as joint managing conservators because there “is a rebuttable

presumption that the appointment of the parents of a child as joint managing conservators is in the

best interest of the child.” TEX. FAM. CODE § 153.131(b). The court need not appoint a parent as

managing conservator if “appointment of the parent or parents would not be in the best interest of

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

emotional development.” Id. § 153.131(a). “Conservatorship determinations . . . 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 considering a child’s best interests, we may consider the non-exclusive factors set forth

by the Supreme Court of Texas in Holley v. Adams: (1) the desires of the child; (2) the emotional

and physical needs of the child now and in the future; (3) the emotional and physical danger to the

child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the

programs available to assist these individuals to promote the best interest of the child; (6) the plans

for the child by these individuals or by the agency seeking custody; (7) the stability of the home

or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing

parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the

parent. 544 S.W.2d 367, 371–72 (Tex. 1976); accord In re A.K., 487 S.W.3d 679, 685–86 (Tex.

App.—San Antonio 2016, no pet.).




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       2. The Evidence at Trial

       The evidence at trial showed Danielle and Deron are married and have been together for

thirteen years. They have three children: A.M.T. and A.M.T.’s two older siblings, J. and D.J., who

were six and five, respectively, at the time of trial. A few years before A.M.T. was born, A.B. and

Deron’s sister went to the family’s mobile home and found J. and D.J., ages one and two at that

time, unsupervised. A.B. and Deron’s sister testified Deron was in jail and Danielle was not home.

Deron’s sister described what she saw:

       [W]hen we did change the diaper of [D.J.], I mean, he had rash. I mean, like I don’t
       know the last time his diaper had been changed. And not only that, it was people
       inside of the mobile home that were laid out on the couch that was oblivious to
       anything going on. They were left with complete strangers and they were under the
       influence of something.

A.B. also testified J. was trying to change D.J.’s diaper. A.B. and Deron’s sister removed J. and

D.J. from the trailer home, and they went to live with A.B.

       After A.M.T. was born, J. and D.J. were returned to Danielle and Deron under the

Department’s supervision. One of the Department’s caseworkers, Venus Alvarez, testified about

concerns she had from two unannounced visits. When she arrived for one visit, J. and D.J. were

on the roof of the house, unsupervised. When she arrived for the other unannounced visit, Danielle

and Deron were arguing or fighting. Alvarez testified the children told her that Danielle put her

“hands on” Deron, demonstrating what the children described to her; that Danielle had “her two

fists put together with her arms up around chin level pushing forward.” According to Alvarez, the

children expressed fears of getting spanked. The Department removed A.M.T., who was an infant

at the time, and again placed him with A.B. D.J. and J.’s conservatorship was established by an

order from a court in Comal County, and they were living with A.B.

       The evidence at trial also showed Danielle and Deron had a history of drug use, domestic

violence, incarcerations, inconsistent visits with A.M.T., unstable housing, and lack of


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employment. Deron’s sister testified Deron had a history of drug use. Alvarez testified Deron

tested negative throughout the case, but he started refusing drug tests. Another Department

caseworker, Jennifer Munoz, testified Danielle tested positive for opiates while the case was

pending. Danielle also admitted she had positive drug test results.

       Munoz testified Danielle and Deron had both been arrested for domestic violence. Munoz

also stated that a few weeks before trial, Danielle came into her office with a black eye. Danielle’s

explanation was that D.J. threw a football and it hit her in the eye. Deron’s sister described an

incident when Dannielle and Deron had an “all out brawl”:

           [A]n all out brawl took place. I mean, they both were beating each other. That’s
       not joking. They were. To the point where my husband had to get in between them
       to intervene and it wouldn’t stop until it got to the point where we said we’re going
       to -- stop or the cops are going to come.

She explained the injuries from the altercation included bruises and “busted lips.” In addition to

the arrests for domestic violence, several witnesses, including Danielle and Deron, testified

Danielle and Deron had prior arrest histories, for theft by check and failure to appear. Danielle’s

most recent arrest was within the year before trial, while the underlying case was pending.

       The evidence also showed Danielle and Deron had moved residences numerous times and

occasionally lived at shelters. Deron testified he had recently obtained employment and arranged

to sign a lease on a townhome at 1:00 p.m. on the day of trial. Danielle testified she was

unemployed. According to Munoz, from the time the case was filed in June 2018 until April 2019,

Danielle and Deron had only four or five visits with A.M.T. A.B. testified that during visits, Deron

would interact with the children, but Danielle would be on her phone. A.B. also explained, “As far

as I know, when I got [A.M.T], [Danielle and Deron had] seen him once and then they moved to

Dallas for about six months or so. And never came to visit, never contacted him. They didn’t call.

The visits didn’t start back again until about March.”



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       The evidence showed that before A.M.T. was removed, Danielle and Deron provided for

many of A.M.T’s basic needs, such as food, water, and shelter, and they had engaged in the

required services in their family service plans. However, Munoz expressed concerns about whether

Danielle and Deron had learned from their classes, such as domestic violence, because of

Danielle’s black eye. Munoz testified that after Danielle tested positive for opiates, she re-engaged

in counseling, but was then discharged for non-attendance.

       The evidence further showed A.M.T. was doing well in A.B.’s care. Alvarez testified

A.B.’s home was a good placement because the children have grown and thrived, and A.B. has

provided a stable, structured environment. Munoz testified A.B. was a licensed kinship caregiver.

A.B. testified she was a teacher and could care for children and A.M.T. should remain with her

and his siblings. Deron’s sister also testified she helps A.B. take care of the children:

           [W]henever she needs . . . I help to watch them. I also help her go to doctor’s
       appointments. I’m the coparent, per se, kind of, like when -- for the school, when
       there’s things that’s going on at the school, we go and eat with the kids or we pick
       them up when they need to be or things like that.

She also testified the children had improved in A.B.’s care.

       3. Analysis

       This case started as a termination proceeding, but the trial court did not order termination

of the parent–child relationship. The trial court was therefore required to either deny the

Department’s petition or render an order in A.M.T.’s best interest. See TEX. FAM. CODE § 161.205;

M.I.A., 2019 WL 5030241, at *10. The trial court rendered an order it found was in A.M.T.’s best

interest: appointing A.B. as sole permanent managing conservator and Danielle and Deron as

possessory conservators. The statutory presumption in favor of appointing Danielle and Deron

managing conservators was rebutted by the evidence showing appointment would not be in

A.M.T.’s best interest because such an appointment would significantly impair the A.M.T.’s



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physical health or emotional development. See TEX. FAM. CODE § 153.131(a), (b). The evidence

shows Danielle and Deron’s history of drug use, domestic violence, incarcerations, inconsistent

visits with A.M.T., unstable housing, and lack of employment, and shows A.M.T. is improving

and thriving in A.B.’s care. Cf. In re D.M., 452 S.W.3d 462, 473 (Tex. App.—San Antonio 2014,

no pet.) (considering evidence of drug use, criminal activity, incarceration, domestic violence, and

other endangering conduct as relevant to a child’s best interest). We therefore cannot say the trial

court’s conservatorship determinations are arbitrary or unreasonable. See J.A.J., 243 S.W.3d at

616. We hold the trial court did not abuse its discretion. See id.

                                            CONCLUSION

       We affirm the trial court’s order.

                                                   Luz Elena D. Chapa, Justice




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