in the Interest of B.B., a Child

Opinion

In The Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06-22-00029-CV

IN THE INTEREST OF B.B., A CHILD

On Appeal from the County Court at Law No. 2 Gregg County, Texas Trial Court No. 2019-698-CCL2

Before Morriss, C.J., Stevens and van Cleef, JJ. Memorandum Opinion by Chief Justice Morriss MEMORANDUM OPINION

After Mother admitted that she was using Vicodin, marihuana, and methamphetamine

and that she had slapped her two-year-old son, B.B.,1 while she was under the influence of

methamphetamine, the Department of Family and Protective Services sought to establish a safety

plan that would allow Mother to go to rehabilitation. Mother identified Cherise and Frank

Young as the persons with whom she wanted B.B. to stay while she went to rehabilitation.

When Mother failed to go to the agreed treatment center, and the Department lost contact with

her, the Department confirmed that the Youngs would care for B.B. and removed him from

Mother’s care. About one year later, while this case was pending, Mother gave birth to I.D., who

was also removed from Mother’s care after Mother’s admission to having used

methamphetamine during her pregnancy.2 After a final hearing, the trial court appointed the

Youngs as sole managing conservators of B.B. and I.D. and appointed Mother possessory

conservator of the children.3

In her appeal in this case, Mother complains of the final order appointing her possessory

conservator of B.B. Mother asserts that the evidence is legally and factually insufficient to

support the trial court awarding the Youngs the right to establish the residence of B.B. without

imposing a geographical restriction and that the trial court abused its discretion by excluding the

1 We refer to the minor children by their initials and to their parents by pseudonyms. See TEX. R. APP. P. 9.8. 2 Mother tested positive for methamphetamine three times while pregnant with I.D., who was born on March 31, 2020. 3 Mother was appointed possessory conservator of B.B. in the trial court’s cause number 2019-698-CCL2, which is on appeal in the instant case. She was appointed possessory conservator of I.D. in the trial court’s cause number 2020-621-CCL2, which is on appeal to this Court in a companion case bearing our cause number 06-22-00030-CV. The two cases had been consolidated for trial. 2 testimony of Mother’s expert witness. Because we find that (1) there was no abuse of discretion

in omitting a geographical restriction and (2) Mother forfeited her complaint about the exclusion

of her expert’s testimony, we affirm the trial court’s judgment.

(1) There Was No Abuse of Discretion in Omitting a Geographical Restriction

In its final order, the trial court found that the appointment of a parent or both parents as

managing conservator of B.B. would not be in the child’s best interest because the appointment

would significantly impair B.B.’s physical health or emotional development.4 See TEX. FAM.

CODE ANN. § 153.131(a). Instead, the trial court appointed the Youngs as permanent managing

conservators of B.B., with the rights and duties specified in Section 153.371 of the Texas Family

Code. “Unless limited by court order, . . . a nonparent . . . appointed managing conservator of

the child has the following rights and duties: . . . the right to designate the primary residence of

the child.” TEX. FAM. CODE ANN. § 153.371(10). The trial court’s order did not limit the

Youngs’ right to designate B.B.’s primary residence. On appeal, Mother asserts that the

evidence is legally and factually insufficient to support the trial court’s decision not to impose a

geographical restriction on the Youngs’ right to designate B.B.’s primary residence.

We review for an abuse of discretion a trial court’s order regarding conservatorship.

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). “A trial court abuses its discretion

when it acts arbitrarily and unreasonably or without reference to any guiding principles.” In re

4 Mother does not challenge this finding. To the extent Mother’s brief could be construed to challenge the trial court’s failure to appoint her managing conservator of B.B., we find that she has forfeited this issue because her brief does not contain citations to appropriate legal authority and does not contain a clear and concise argument applying the facts of this case to such authorities. See TEX. R. APP. P. 38.1(i). “[A] point of error not adequately supported by either argument or authorities is waived.” In re A.B., 646 S.W.3d 83, 96 (Tex. App.—Texarkana 2022, pet. denied) (quoting In re N.L.G., No. 06-06-00066-CV, 2006 WL 3626956, at *2 (Tex. App.—Texarkana Dec. 14, 2006, pet. denied) (mem. op.)). 3 Marriage of Christensen, 570 S.W.3d 933, 937 (Tex. App.—Texarkana 2019, no pet.) (citing

Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). “In family law

cases, [however,] the abuse of discretion standard of review overlaps with traditional standards

of review.” Id. (quoting In re C.G.L., No. 06-13-00068-CV, 2014 WL 887778, at *3 (Tex.

App.—Texarkana Mar. 6, 2014, no pet.) (mem. op.)). “Thus, ‘legal and factual insufficiency are

not independent grounds of reversible error, but instead are factors relevant to our assessment of

whether the trial court abused its discretion.’” Id. (quoting In re C.G.L., 2014 WL 887778 at *3).

“[A] trial court does not abuse its discretion if there is some evidence of a probative and

substantive character to support its decision.” Id. (citing Bates v. Tesar, 81 S.W.3d 411, 424–25

(Tex. App.—El Paso 2002, no pet.)). “Accordingly, we consider whether the trial court had

sufficient evidence on which to exercise its discretion and whether it erred in exercising that

discretion.” Id. at 937–38 (citing Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas

2005, pet. denied)). In our review, “we recognize that ‘[t]he trial court is in the best position to

observe the demeanor and personalities of the witnesses and can ‘feel’ the forces, powers, and

influences that cannot be discerned by merely reading the record.’” Id. at 937 (quoting Bates, 81

S.W.3d at 424).

Texas courts have consistently held that the trial court is authorized, but not required, to

impose a geographical restriction on a sole managing conservator’s right to designate the

principal residence of the child under her care. See Guion v. Guion, 597 S.W.3d 899, 907–08

(Tex. App.—Houston [1st Dist.] 2020, no pet.) (citing cases supporting this principle); see also

TEX. FAM. CODE ANN. §§ 153.132(1), 153.371(10) (Supp.). “[T]he purpose of imposing a

4 geographic residency restriction is to ensure those who have rights to possession of the child are

able to effectively exercise such rights.” In re S.M.D., 329 S.W.3d 8, 22 (Tex. App.—San

Antonio 2010, pet. dism’d) (citing In re A.S., 298 S.W.3d 834, 836 (Tex. App.—Amarillo 2009,

no pet.)). In the trial court’s determination of issues of conservatorship, possession of, and

access to the child, “[t]he best interest of the child shall always be the primary consideration.”

TEX. FAM. CODE ANN. § 153.002. “The trial court has wide latitude in determining what is in the

best interest of the child.” Christensen, 570 S.W.3d at 938 (citing Gillespie, 644 S.W.2d at 451).

The Texas Supreme Court has noted that, because “[s]uits affecting the parent-child

relationship are intensely fact driven, . . . courts have developed best-interest tests that consider

and balance numerous factors.” Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002). Because there may

be many relevant factors, courts have rejected formulaic tests when considering whether a

geographic restriction is in the best interest of the child. In re M.M.M., 307 S.W.3d 846, 850

(Tex. App.—Fort Worth 2010, no pet.) (citing Lenz, 79 S.W.3d at 19). Nevertheless, in cases

involving conservatorship, possession, and access, we have been instructed to consider the public

policies set by the Texas Legislature, which include the objectives to:

(1) assure that children will have frequent and continuing contact with parents who have shown an ability to act in the best interest of the child;

(2) provide a safe, stable, and nonviolent environment for the child; and

(3) encourage parents to share in the rights and duties of raising their child after the parents have separated or dissolved their marriage.

Lenz, 79 S.W.3d at 14 (citing TEX. FAM. CODE ANN. § 153.001(a)).

5 The court in Lenz also examined some other factors that may be relevant when

considering the best interest of a child when a parent has asked for a modification of a

conservatorship order because of a planned move by the custodial parent. As we have previously

noted,

Those factors include (1) the reasons for and against the move, (2) the education, health, and leisure opportunities afforded by the move, (3) the accommodation of the child’s special needs or talents, (4) the effect on extended family relationships, (5) the effect on visitation and communication with the noncustodial parent, (6) the noncustodial parent’s ability to relocate, and (7) the child’s age.

Christensen, 570 S.W.3d at 938 (citing Lenz, 79 S.W.3d at 15–16).

Mother argues that the trial court abused its discretion in failing to impose a geographic

restriction because of the following testimony by Cherise Young:

Q. (by Mother’s attorney) Could you tell this Court, if the Judge gave conservatorship of the boys to you and your husband, do y’all have plans to relocate?

A. No.

Q. Do you have any objection to a geographic restriction being imposed in this case?

A. I would, but I don’t plan to move.

....

Q. And could you tell the Court, please, . . . where are y’all’s relatives from, extended family?

A. Okay. We have his mom in Wisconsin, we have one brother in Oklahoma, we have one brother in, I believe, Indiana, and one brother in Pennsylvania.

Q. Has there been any discussion that you and your husband would like to retire to Wisconsin? 6 A. We had originally talked about doing this before [B.B.] came into our lives.

Q. Okay. So no current plans to --

A. No.

Q. -- retire to Wisconsin? Okay.

Although Cherise’s testimony disclaimed any current plans to move out of state, Mother

mischaracterizes it as “a proposed move to Wisconsin” and argues that such a move would place

a large burden on Mother’s ability to maintain a relationship with the child and his teachers and

to keep up with his education, that it would inhibit her ability to be involved in the child’s extra-

curricular activities, and that it would sever the child’s relationship with family members in the

area. However, Mother does not cite to any evidence in support of these claims.5

Further, the cited testimony was undisputed. The record also showed that the Youngs

facilitated Mother’s visits with the children and never interfered with her access to the children.

The Youngs were cordial with Mother, welcomed her, and had her come over for holiday visits.

They also assisted Mother in how to engage with B.B., who was diagnosed with autism, when he

would become overstimulated. In addition, they never prevented Mother from attending B.B.’s

therapy sessions. 5 The paucity of evidence regarding this issue at trial is most likely because Mother never requested a geographical restriction be placed on the Youngs’ right to designate the primary residence of the children before or during the final hearing. As the Department points out in its brief, Mother also never objected to the absence of a geographical restriction at either of two post-trial hearings on the trial court’s proposed judgment, or in her motion for a new trial. The Department contends that, because Mother never asked for a geographical restriction, she has waived any challenge to its absence. However, because the Youngs intervened in this case and sought to be named the sole managing conservators and Section 153.371 of the Texas Family Code gave the court the discretion to determine whether or not to impose a geographical restriction, the issue was before the trial court. In addition, because this was a civil, nonjury case, Mother’s complaints about the legal or factual insufficiency of the evidence supporting the trial court’s judgment may be asserted for the first time on appeal. See TEX. R. APP. P. 33.1(d). 7 On this record,6 the trial court could have reasonably determined that the Youngs had no

plans to move out of state and that, based on their history of cooperation with Mother in ensuring

her access to the children, imposing a geographical restriction was not required to ensure

Mother’s access to the children. See In re K.S., No. 13-19-00416-CV, 2021 WL 317656, at *7

(Tex. App.—Corpus Christi Jan. 28, 2021, no pet.) (mem. op.) (finding on a similar record that

there was no evidence to support the trial court’s imposition of a geographic restriction on a sole

managing conservator’s right to designate the primary residence of a child). After reviewing the

entire record, we conclude that substantial evidence supported the trial court’s judgment giving

the Youngs the unrestricted right to designate the primary residence of the children. For that

reason, we find that the trial court did not clearly abuse its discretion by not imposing a

geographical restriction.7 We overrule this issue.

(2) Mother Forfeited Her Complaint About the Exclusion of Her Expert’s Testimony

Mother also complains that the trial court erred in excluding the testimony of her expert

witness. Mother offered the expert to testify regarding how certain over-the-counter medicines

and a prescription medicine that Mother had been taking could result in a drug test giving a false

positive for the presence of methamphetamine. The Department and the Youngs objected to the

expert’s testimony because Mother failed to disclose in her response to the Department’s request

6 Although we have considered the entire record, because this is a memorandum opinion affirming the trial court’s conservatorship order, we do not exhaustively detail the evidence. See TEX. R. APP. P. 47.4 (“If the issues are settled, the court should write a brief memorandum opinion no longer than necessary to advise the parties of the court’s decision and the basic reasons for it.”); In re A.B., 437 S.W.3d 498, 507 (Tex. 2014) (holding courts of appeals need not detail the evidence when affirming termination findings). 7 If the Youngs do move out of state or formulate definite plans to do so, Mother could still seek to modify the trial court’s conservatorship order at that time. 8 for disclosures the substance of the expert’s testimony and opinions and a brief summary of the

bases of his opinions and she failed to provide all documents that were provided to or reviewed

by him. See TEX. R. CIV. P. 192.3(f). After the trial court reviewed Mother’s responses to the

request for disclosures,8 the trial court excluded the testimony because Mother failed to disclose

the substance of his opinions and the bases of those opinions.

“To reverse a judgment based on a claimed error in admitting or excluding evidence, a

party must show that the error probably resulted in an improper judgment.” Interstate

Northborough P’ship v. State, 66 S.W.3d 213, 220 (Tex. 2001) (citing TEX. R. APP. P. 61.1); see

TEX. R. APP. P. 44.1(a)(1). “Typically, a successful challenge to a trial court’s evidentiary

rulings requires the complaining party to demonstrate that the judgment turns on the particular

evidence excluded or admitted.” Id. (citing Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617

(Tex. 2000)).

Although Mother provided an argument in support of her contention that the trial court

erred in excluding the testimony, she wholly failed to demonstrate that the trial court’s judgment

turned on the exclusion of the testimony. Rather, her entire argument regarding harm was that

“had the [expected testimony of (Mother’s) expert regarding drug testing] been allowed, a

different result regarding custody of the child may have been reached by the court.” Absent

from Mother’s brief on this issue was any analysis of what the testimony would have been or

how that testimony would have rebutted the Department’s expert testimony and overcome the

8 Mother’s responses to the request for disclosures are not included in the appellate record. 9 other testimony of Mother’s acts and omissions unrelated to the alleged false-positive drug

results.9 Also absent were any citations to the record in support of the missing harm analysis.

Our appellate rules require an appellant to make “a clear and concise argument for the

contentions made, with appropriate citations to authorities and to the record.” TEX. R. APP. P.

38.1(i). A short, conclusory statement does not satisfy this requirement. Smale v. Williams, 590

S.W.3d 633, 638 (Tex. App.—Texarkana 2019, no pet.); In re Marriage of Hudson, No. 06-18-

00011-CV, 2018 WL 4656288, at *4 (Tex. App.—Texarkana Sept. 28, 2018, no pet.). Further,

“it is not the role of this court to conduct harm analysis absent some cogent argument on

[Mother]’s part.” Yarbrough v. ELC Energy, LLC, No. 12-15-00303-CV, 2017 WL 2351357, at

*11 (Tex. App.—Tyler May 31, 2017, no pet.) (mem. op.). As a result, since Mother has failed

to brief whether the exclusion of the evidence was harmful, she has waived this issue. Id.; see V.

N. G. v. Tex. Dep’t of Family & Protective Servs., No. 03-18-00329-CV, 2018 WL 5023960, at

*3 (Tex. App.—Austin Oct. 17, 2018, no pet.) (mem. op.) (finding inadequate briefing when

brief did not explain legal significance of purported error, conduct any harm analysis, or explain

how alleged error could entitle appellant to reversal or any other relief). We overrule this issue.

9 Mother admitted that drug tests taken on April 30, 2019, May 31, 2019, August 9, 2019, and November 18, 2019, which showed positive results for methamphetamine, were accurate. She claimed that drug tests taken on February 28, 2020, October 23, 2020, March 22, 2021, April 20, 2021, July 14, 2021, and September 13, 2021, which showed positive results for methamphetamine and other illegal substantives, were false positives. 10 For the reasons stated, we affirm the trial court’s judgment.

Josh R. Morriss III Chief Justice

Date Submitted: October 5, 2022 Date Decided: October 6, 2022