In the Interest of L.T. and W.T., Children v. the State of Texas

• Court: Court of Appeals of Texas
• Decided: April 30, 2024
• Docket: 07-24-00002-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo

No. 07-24-00002-CV

IN THE INTEREST OF L.T. AND W.T., CHILDREN

On Appeal from the 72nd District Court Lubbock County, Texas Trial Court No. 2013-505,551, Honorable Kelley Tesch, Associate Judge Presiding

April 30, 2024 MEMORANDUM OPINION Before PARKER and DOSS and YARBROUGH, JJ.

Appellant, Mother, appeals from the trial court’s order modifying the parent-child

relationship that named her possessory conservator of her two children, L.T. and W.T.1

In her sole issue, Mother argues the trial court erred by appointing Father sole managing

conservator with the exclusive right to determine the residence of L.T. and W.T. We affirm

the trial court’s order.

1 To protect the privacy of the parties involved, we refer to the appellant mother as “Mother,” the

appellee father as “Father,” and the children as L.T. and W.T. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b). BACKGROUND

Mother and Father were divorced in Dallas County in 2017. They were appointed

joint managing conservators with Mother having the exclusive right to designate the

primary residence of then six-year-old L.T. and three-year-old W.T.

The parties resided in the Dallas area at the time of the divorce in 2017. Mother

testified that Father did not visit the children regularly and did not telephone them or give

them presents. She acknowledged that she and the children “moved a lot,” and that she

did not communicate with Father. During this time, Mother was homeless for one to two

weeks. The children stayed with their paternal grandmother and Mother “chose to stay

in [her] car.” Beginning in 2020, while she was employed as a service coordinator for

Metrocare Services, Mother was stalked and harassed by a work colleague. In June of

2022, Mother quit her job and she, L.T., and W.T. moved to Alabama briefly because of

the trauma associated with the stalking. When her job in Alabama did not work out,

Mother and the children returned to Dallas to get their belongings, then moved to Lubbock

to live with their maternal grandmother. Mother did not tell Father that she was taking the

children to Alabama or that she was residing in Lubbock as of August of 2022.

The Texas Department of Family and Protective Services became involved with

Mother and the children in September of 2022. The Department opened an investigation

after receiving a report alleging that Mother was neglectful in her supervision of L.T. and

W.T. The report alleged that Mother was suffering from paranoid delusions and severe

mental health issues. During its investigation, the Department learned that Mother

purchased a chainsaw for protection because she claimed an unknown person was

2 stalking her. Mother withdrew L.T. and W.T. from school to homeschool them. However,

she had not followed through with homeschooling. Maternal grandmother reported that

Mother attempted to “cast a demon” from L.T. and agreed with the Department that

Mother should have no unsupervised contact with L.T. and W.T. due to concerns with

Mother’s untreated mental health issues. The Department filed an original petition for the

protection of L.T. and W.T. The petition also requested the termination of Mother’s and

Father’s parental rights. After a temporary hearing, the Department was appointed

temporary managing conservator and the children were placed in Father’s care in

Arlington. Mother and Father filed counter-petitions to modify the parent-child

relationship.

After the Department removed L.T. and W.T. from her care, Mother received

mental health treatment. She was hospitalized for forty-eight hours at Parkland Hospital

in Dallas and then admitted to a psychiatric hospital for thirty days. She was diagnosed

with bipolar disorder with psychosis “and forced to take medication.” Mother was

prescribed several medications, including Rexulti, Risperdal, and Trazodone. Beginning

in December of 2022, Mother had follow-up appointments with a doctor in Lubbock who

continued her medications. She was supposed to continue taking her medications as

prescribed, but as of the time of trial, she had not taken her medications for several

months because she experienced severe side effects, and it was “absolutely unhealthy

for [her] and [her] body.” Mother disagrees with the diagnosis she received at the

psychiatric hospital and says she has paperwork from her Lubbock doctor that changed

her diagnosis to anxiety with panic attacks, insomnia, and depression. This doctor has

retired, and Mother is waiting to see her doctor in Dallas to obtain an evaluation to

3 determine if she needs medication. She will not take medication for a diagnosis that she

does not believe is appropriate. None of the health care professionals Mother has seen

has told her to stop taking her medications as prescribed.

Jasmyn Brown, a permanency specialist with St. Francis Ministries, testified that

Mother and Father completed the family service plans implemented for each parent by

the Department. L.T. and W.T. have lived with Father and Stepmother in Arlington since

November of 2022. The children attend Berry Elementary and have made friends. They

are A and B students. L.T. and W.T. have thrived in Father’s home. Father and

Stepmother provide a safe, stable, and loving environment for L.T. and W.T. Mother

communicates with Stepmother to arrange visitation with L.T. and W.T. The children love

both their parents and do not want to have to choose between them.

After the hearing, the associate judge dismissed the Department and appointed

Father as sole managing conservator of L.T. and W.T. The court appointed Mother as

possessory conservator with supervised possession of the children. The court found that

these orders were in the children’s best interest. Mother appeals, contending the trial

court abused its discretion by appointing Father sole managing conservator.2

STANDARD OF REVIEW

A trial court has broad discretion to decide the best interest of a child in family law

matters such as custody, visitation, and possession. In re A.M., 604 S.W.3d 192, 196

(Tex. App.—Amarillo 2020, pet. denied). Accordingly, we review a decision to modify

2 This case was submitted on Mother’s brief only since the Department was dismissed and Father

did not appeal.

4 conservatorship for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451

(Tex. 1982). A trial court may modify a conservatorship order if modification would be in

the best interest of the child and the circumstances of the child, a conservator, or another

party affected by the order have materially and substantially changed since the date of

the rendition of the prior order. TEX. FAM. CODE ANN. § 156.101(a)(1)(A).3 We will not

disturb a trial court’s decision in a modification case unless the complaining party shows

a clear abuse of discretion, meaning the trial court acted in an arbitrary and unreasonable

manner or without reference to guiding principles. In re A.M., 604 S.W.3d at 196–97. In

our review of a modification order under an abuse of discretion standard, legal and factual

sufficiency challenges to the evidence are not independent grounds of error but are

relevant factors in assessing whether the trial court abused its discretion. Id. at 197. An

appellate court applies a two-prong analysis when it determines whether legal or factual

insufficiency has resulted in an abuse of discretion: (1) whether the trial court had

sufficient information upon which to exercise its discretion, and (2) whether the trial court

erred in applying its discretion. Id. The sufficiency review is related to the first inquiry. If

it is revealed in the first inquiry that there was sufficient evidence, then we must determine

whether the trial court made a reasonable decision, and that involves a conclusion that

the trial court’s decision was neither arbitrary nor unreasonable. Id. The trial court’s

exercise of discretion will withstand appellate scrutiny unless clearly abused. In re A.D.T.,

588 S.W.3d 312, 319 (Tex. App.—Amarillo 2019, no pet.).

3 Further references to provisions of the Texas Family Code will be by reference to “section __” or

“§ __.”

5 APPLICABLE LAW

In determining conservatorship and possession issues, the best interest of the

child shall always be the primary consideration. § 153.002. We review a trial court’s best-

interest finding by using the well-established Holley factors. See Holley v. Adams, 544

S.W.2d 367, 371–72 (Tex. 1976).4

Because of the fact-intensive nature of reviewing custody issues, an appellate

court must afford great deference to the factfinder on issues of credibility and demeanor

because the child’s and parents’ behavior, experiences, and circumstances are conveyed

through words, emotions, and facial expressions that are not reflected in the record.

Chavez v. Chavez, 148 S.W.3d 449, 458 (Tex. App.—El Paso 2004, no pet.).

ANALYSIS

In her sole issue, Mother contends that the trial court abused its discretion by

modifying the previous order and appointing Father sole managing conservator of the

children. Mother does not challenge the finding that the circumstances of the children or

parties have materially and substantially changed since the divorce; rather, she contends

that the modification to sole managing conservatorship is not in the best interest of the

children. See § 156.101(a)(1)(A). We disagree.

4 These factors include: (1) the child’s desires; (2) the child’s present and future emotional and

physical needs; (3) any present or future emotional and physical danger to the child; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist the individuals seeking custody to promote the child’s best interest; (6) the plans for the child by the individuals or agency seeking custody; (7) the stability of the home or proposed placement; (8) the parent’s acts or omissions which may indicate that the existing parent-child relationship is improper; and (9) any excuse for the parent’s acts or omissions. See id. In the context of a custody modification, other factors to consider include the child’s need for stability and the need to prevent constant litigation. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).

6 A child’s need for permanence through the establishment of a stable, permanent

home has been recognized as the paramount consideration in determining best interest.

See In re K.C., 219 S.W.3d 924, 931 (Tex. App.—Dallas 2007, no pet.). The record

reflects that L.T. and W.T. were placed with Father shortly after their removal from

Mother’s custody and had lived with Father and Stepmother for more than a year at the

time of trial. Father and Stepmother are providing L.T. and W.T., currently ages eleven

and eight, with a safe, stable, and structured home environment, in which the children are

thriving. They have made friends at school and have perfect attendance. Father owns

his home, and he has been employed full-time as a supervisor at American Building

Maintenance for four years. Moreover, Father and Stepmother accommodate and

encourage L.T. and W.T.’s relationship with Mother.

In contrast, the trial court heard evidence that Mother moved L.T. and W.T.

frequently and struggled to maintain a stable home environment while they were in her

care. On two occasions, Mother and the children were homeless. Mother described

being stalked and harassed for a period of years which led to her fleeing to Alabama

because she feared for her life and the lives of her children. The trial court also heard

testimony concerning Mother’s erratic behavior leading to the Department’s intervention

and Mother’s hospitalization to treat her mental health issues. During the pendency of

the case, Mother refused to take medications prescribed by her treating physicians, had

difficulty staying employed, and was sleeping in her car for days at a time.

The trial court was in the best position to observe the demeanor and personalities

of the witnesses and was able to “‘feel’ the forces, powers, and influences that cannot be

discerned by merely reading the record.” Bell v. Campbell, 328 S.W.3d 618, 620 (Tex. 7 App.—El Paso 2010, no pet.). We defer to the trial court’s determinations regarding the

credibility of the witnesses. As sole judge of the weight and credibility of the evidence,

the trial court was entitled to determine which evidence to credit, and, in doing so, could

reasonably conclude that it was in L.T. and W.T.’s best interest that Father be appointed

sole managing conservator.

Because some evidence of a substantive and probative character exists to support

the trial court’s decision, we conclude the trial court did not err in finding it is in the best

interest of L.T. and W.T. to designate Father as the sole managing conservator with the

right to designate the residence of the children. See Holley, 544 S.W.2d at 371–72.

Mother’s sole issue is overruled.

CONCLUSION

Finding no abuse of discretion, we overrule Mother’s sole issue and affirm the trial

court’s judgment.

Judy C. Parker Justice