COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00464-CV
IN THE INTEREST OF R. R., A MINOR CHILD
----------
FROM THE COUNTY COURT AT LAW OF HOOD COUNTY TRIAL COURT NO. CL213104
MEMORANDUM OPINION1
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.
1 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.
2 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.
3 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
4 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
5 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
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-13-00464-CV
IN THE INTEREST OF R. R., A MINOR CHILD
----------
FROM THE COUNTY COURT AT LAW OF HOOD COUNTY TRIAL COURT NO. CL213104
MEMORANDUM OPINION1
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.
1 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.
2 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.
3 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
4 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
5 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).
6 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
7 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.
8 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