In Re MMM

307 S.W.3d 846, 2010 WL 744805
CourtCourt of Appeals of Texas
DecidedMarch 4, 2010
Docket2-09-203-CV
StatusPublished

This text of 307 S.W.3d 846 (In Re MMM) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re MMM, 307 S.W.3d 846, 2010 WL 744805 (Tex. Ct. App. 2010).

Opinion

307 S.W.3d 846 (2010)

In the Interest of M.M.M., a Child.

No. 2-09-203-CV.

Court of Appeals of Texas, Fort Worth.

March 4, 2010.

*848 Clifford D. Mackenzie, Fort Worth, TX, for Appellant.

Joe Shannon, Jr., Criminal District Attorney, Charles M. Mallin, Assistant Criminal District Attorney, Chief of Appellate Section, Debra Windsor & Marvina Robinson, Assistant Criminal District Attorneys, Fort Worth, TX, for Appellee.

Panel: LIVINGSTON, WALKER, and McCOY, JJ.

OPINION

TERRIE LIVINGSTON, Justice.

In two issues, J.M. (Father) appeals portions of the trial court's order that appointed E.M. (Mother) as the sole managing conservator of their daughter, M.M.M.[1] We affirm.

Background Facts

On August 4, 2008, two days after M.M.M.'s birth, the Texas Department of Family and Protective Services (the Department) filed a petition for her protection and conservatorship. An affidavit attached to the petition related that Mother had erratic behavior at the hospital before and after giving birth to M.M.M. and that Father did not have stable housing or a well-paying job. The affidavit asserted that Mother's behavior was caused by her refusal to take medication for her apparent mental problems. The trial court initially authorized M.M.M.'s removal from her parents' care and named the Department as M.M.M.'s temporary sole managing conservator.

In September, the Department filed a Family Service Plan that required the parents to (among other things) comply with mental health and medication recommendations and participate in parenting classes and individual counseling. That same month, the trial court ordered the parents to complete these tasks and named them as M.M.M.'s temporary possessory conservators.

The trial court eventually returned M.M.M. to her parents' care. In January 2009, the Department filed another Family Service Plan that contained several other tasks for the parents to complete. In February, the Department filed a motion that requested that temporary possessory conservatorship be removed from Father and remain solely with Mother because Father had been arrested for assaulting Mother. The trial court granted the Department's motion and limited Father's visitation of M.M.M. to occasions agreed to and arranged by the Department.

The trial of M.M.M.'s conservatorship issues occurred in July. Following the trial, the court removed M.M.M.'s conservatorship from the Department and, under the parties' agreement that was announced at trial, appointed Mother as her permanent sole managing conservator and Father as her possessory conservator. The trial court's order allowed Mother to establish M.M.M.'s residence without any geographic restriction and stated that Father "shall have NO unsupervised visits at this time due to his failure to follow the [Department's] *849 service plan, failure to support the child[,] and his history of family violence." The issues of a lack of a geographic restriction on M.M.M.'s residence and of Father's supervised access to her were not part of the parties' agreement; these issues were contested at trial. Father filed his notice of appeal.

Father's Issues on Appeal

In two issues, Father argues that the trial court erred by not geographically restricting M.M.M.'s domicile and by requiring that his visitation with her be supervised.

Standard of review

We review the trial court's decisions on custody, control, possession, and visitation matters for an abuse of discretion. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); In re M.P.B., 257 S.W.3d 804, 811 (Tex.App.-Dallas 2008, no pet.); In re W.M., 172 S.W.3d 718, 724 (Tex.App.-Fort Worth 2005, no pet.) (adding that the trial court has "wide latitude in determining the best interests of a minor child").

To determine whether a trial court abused its discretion, we must decide whether the court acted without reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007); Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex.2004); W.M., 172 S.W.3d at 725. An appellate court cannot conclude that a trial court abused its discretion merely because the appellate court would have ruled differently in the same circumstances. E.I. du Pont de Nemours & Co. v. Robinson, 923 S.W.2d 549, 558 (Tex.1995); see Low, 221 S.W.3d at 620.

An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence. In re Barber, 982 S.W.2d 364, 366 (Tex.1998) (orig. proceeding). Furthermore, an abuse of discretion does not occur as long as some evidence of substantive and probative character exists to support the trial court's decision. Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002); W.M., 172 S.W.3d at 725. We must be cognizant that the trial court is in a better position to decide custody cases because "it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent." In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.-Austin 2005, pet. denied).

In our review of a child custody ruling under the abuse of discretion standard, legal and factual sufficiency are not independent grounds of error but are relevant factors in deciding whether the trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex.App.-Fort Worth 2002, pet. denied) (op. on reh'g); see W.M., 172 S.W.3d at 725. 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 consider whether the trial court had sufficient information upon which to exercise its discretion and whether it erred in its application of that discretion. W.M., 172 S.W.3d at 725; T.D.C., 91 S.W.3d at 872. "The traditional sufficiency review comes into play with regard to the first question. With regard to the second question, we determine, based on the elicited evidence, whether the trial court made a reasonable decision." W.M., 172 S.W.3d at 725 (footnote omitted).

Mother's unrestricted right to determine M.M.M.'s domicile

In his first issue, Father contends that the trial court erred by failing to restrict M.M.M.'s domicile to a specific geographic *850 area. This issue arises because Mother testified at trial that she wanted to move to California, where she was born and where her parents live.

The law on residency restrictions

Texas does not have any specific statute regarding residency restrictions in custody cases. See Lenz v.

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Related

Cire v. Cummings
134 S.W.3d 835 (Texas Supreme Court, 2004)
Low v. Henry
221 S.W.3d 609 (Texas Supreme Court, 2007)
Butnaru v. Ford Motor Co.
84 S.W.3d 198 (Texas Supreme Court, 2002)
Echols v. Olivarez
85 S.W.3d 475 (Court of Appeals of Texas, 2002)
In Re Sigmar
270 S.W.3d 289 (Court of Appeals of Texas, 2008)
EI Du Pont De Nemours & Co. v. Robinson
923 S.W.2d 549 (Texas Supreme Court, 1996)
Lenz v. Lenz
79 S.W.3d 10 (Texas Supreme Court, 2002)
In Re Rhodes
293 S.W.3d 342 (Court of Appeals of Texas, 2009)
In the Interest of R.D.S.
902 S.W.2d 714 (Court of Appeals of Texas, 1995)
In Re Barber
982 S.W.2d 364 (Texas Supreme Court, 1999)
Gillespie v. Gillespie
644 S.W.2d 449 (Texas Supreme Court, 1982)
in the Interest of B.N.F. and J.D.F., Jr., Children
120 S.W.3d 873 (Court of Appeals of Texas, 2003)
In the Interest of R.T.H.
175 S.W.3d 519 (Court of Appeals of Texas, 2005)
in the Interest of W.M. and A.S., Children
172 S.W.3d 718 (Court of Appeals of Texas, 2005)
In the Interest of J.R.D. and T.C.D.
169 S.W.3d 740 (Court of Appeals of Texas, 2005)
in the Interest of M.M.M., a Child
307 S.W.3d 846 (Court of Appeals of Texas, 2010)
In the Interest of T.D.C.
91 S.W.3d 865 (Court of Appeals of Texas, 2002)
In the Interest of M.P.B.
257 S.W.3d 804 (Court of Appeals of Texas, 2008)
In the Interest of A.S.
298 S.W.3d 834 (Court of Appeals of Texas, 2009)

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Bluebook (online)
307 S.W.3d 846, 2010 WL 744805, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-mmm-texapp-2010.