In the Interest of A. J., a Child v. the State of Texas

NO. 12-23-00079-CV

IN THE COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

§ APPEAL FROM THE
IN THE INTEREST OF
§ COUNTY COURT AT LAW NO. 2
A.J., A CHILD
§ ANGELINA COUNTY, TEXAS

MEMORANDUM OPINION
M.J. appeals the trial court’s order appointing the Texas Department of Family and
Protective Services (the Department) as sole managing conservator of A.J. and declining to
appoint her as possessory conservator of A.J. In two issues, M.J. urges the trial court erred in
denying her access to A.J. We affirm.

BACKGROUND
M.J. is the mother of A.J. On May 9, 2022, the Department filed an original petition for
protection of a child, for conservatorship, and for termination of parental rights. The Department
was appointed temporary managing conservator of the child, and M.J. received limited access to
the child.
At the conclusion of a trial on the merits, the jury found, by clear and convincing
evidence, that M.J. engaged in one or more of the acts or omissions necessary to support
termination of her parental rights under subsections (E) and (O) Texas Family Code Section
161.001(b)(1). However, the jury found that (1) termination of the parent-child relationship
between M.J. and A.J. is not in the child’s best interest, (2) the Department should be named
managing conservator, and (3) M.J. should not be appointed possessory conservator. Based on
these findings, the trial court ordered that the parent-child relationship between A.J. and M.J. not
be terminated. It further ordered that the Department be appointed permanent managing
conservator and found that appointment of M.J. would not be in the child’s best interest because
doing so would impair A.J.’s physical health or emotional development. The trial court did not
appoint M.J. possessory conservator and denied her possession or access on grounds that it was
not in the best interest of the child and permitting possession or access would endanger A.J.’s
physical and emotional welfare. This appeal followed.

CONSERVATORSHIP
In her first issue, M.J. urges the evidence is legally and factually insufficient to support
the finding that appointing her as possessory conservator is not in A.J.’s best interest and would
endanger her physical and emotional welfare. 1
Standard of Review
We review a trial court’s conservatorship rulings for abuse of discretion. See In re J.A.J.,
243 S.W.3d 611, 616 (Tex. 2007). A trial court has broad discretion in determining
conservatorship, and it “does not abuse its discretion if there is some evidence of a substantive
and probative character to support its decision.” In re J.J.R.S., 607 S.W.3d 400, 404 (Tex.
App.—San Antonio 2020), aff’d, 627 S.W.3d 211 (Tex. 2021) (internal quotation marks
omitted). In family law cases, the legal and factual sufficiency of the evidence is one factor in
determining whether the trial court abused its discretion, but it is not an independent ground of
error. See, e.g., In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 80 (Tex. App.—San Antonio
2011, pet. denied).
Under an abuse of discretion standard, we engage “in a two-pronged inquiry: (1) whether
the trial court had sufficient information on which to exercise its discretion; and (2) whether the
trial court erred in its application of discretion.” Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex.
App.—Austin 2006, pet. denied). An appellant who challenges the legal sufficiency of a finding
on which he did not bear the burden of proof must show that no evidence supports the finding.
Id. at 588. In a factual sufficiency challenge, the appellant must show the finding “is so contrary
to the overwhelming weight of the evidence as to be clearly wrong and manifestly unjust.” Id. at
588–89.
Moreover, the Family Code provides that a jury’s custody determination is binding on the
trial court if supported by the evidence. TEX. FAM. CODE ANN. § 105.002(c)(1)(C) (West Supp.
2022); Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014). In conducting our sufficiency review,

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M. J. does not appeal the appointment of the Department as permanent managing conservator.

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we are mindful that the jury is the sole judge of the credibility of the witnesses and the weight to
be given their testimony. Jones v. Tarrant Util. Co., 638 S.W.2d 862, 866 (Tex. 1982). The
trier of fact may resolve conflicts and inconsistencies in the testimony of any one witness as well
as the testimony of different witnesses. Webb v. Jorns, 488 S.W.2d 407, 411 (Tex. 1972). We
cannot substitute our judgment or opinion for that of the jury. Lofton v. Tex. Brine Corp., 720
S.W.2d 804, 805 (Tex. 1986).
Applicable Law
“The court shall appoint as a possessory conservator a parent who is not appointed as a
sole or joint managing conservator unless it finds that the appointment is not in the best interest
of the child and that parental possession or access would endanger the physical or emotional
welfare of the child.” TEX. FAM. CODE ANN. § 153.191 (West 2014). “[T]he relationship
between parent and child is constitutionally protected.” Fish v. Lebrie, No. 03-09-00387-CV,
2010 WL 5019411, at *3 (Tex. App.—Austin Dec. 10, 2010, no pet.) (mem. op.) (alteration in
original) (quoting Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 554, 54 L. Ed. 2d 511
(1978)). “[A] parent’s right to the care and custody of his child is a fundamental liberty interest
more precious than property rights.” Id. (quoting In re M.S., 115 S.W.3d 534, 547–48 (Tex.
2003) (citing Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397, 71 L. Ed. 2d
599 (1982)). A “complete denial of access should be rare.” In re B.P., Jr., No. 2-07-251-CV,
2008 WL 2639264, at *7 (Tex. App.—Fort Worth July 3, 2008, no pet.) (mem. op.); see In re
J.J.R.S., 627 S.W.3d 211, 220 (Tex. 2021). In other words, although “[t]rial courts have broad
discretion to determine the frequency and duration of visitation rights, “[a] complete denial of
parental access should be reserved for situations rising nearly to the level that would call for a
termination of parental rights.” In re B.O., No. 02-16-00485-CV, 2017 WL 2590571, at *30
(Tex. App.—Fort Worth June 15, 2017, no pet.) (mem. op.); see In re P.M., No. 02-14-00205-
CV, 2014 WL 8097064, at *30 (Tex. App.—Fort Worth Dec. 31, 2014, pet. denied) (mem. op.).
Denial of access is “reserved only for ‘the most extreme of circumstances.’” Fish, 2010 WL
5019411, at *3 (quoting In re E.N.C., No. 03-07-00099-CV, 2009 WL 638188, at *15 (Tex.
App.—Austin Mar. 13, 2009, no pet.) (mem. op.) (citing Hale v. Hale, No. 04-05-00314-CV,
2006 WL 166518, at *3 (Tex. App.—San Antonio Jan. 25, 2006, pet. denied) (mem. op.); Green
v. Green, 850 S.W.2d 809, 812 (Tex. App.—El Paso 1993, no writ) (parent’s entitlement to
periodic visitation with child “cannot be denied except in extreme circumstances”)); see

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Brandon v. Rudisel, 586 S.W.3d 94, 107 (Tex. App.—Houston [14th Dist.] 2019, no pet.). “In
such cases, we must find a balance between deferring to the trial court’s factual determinations
and carefully examining the record for evidence of extreme circumstances.” Fish, 2010 WL
5019411, at *3.
Some of the factors an appellate court may consider in ascertaining the best interest of a
child include the non-exhaustive list set forth in Holley v. Adams. 544 S.W.2d 367, 371–72
(Tex. 1976). Those factors include the following: (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. Id. at 371–72. These factors are not exhaustive. In re C.H., 89 S.W.3d 17, 27
(Tex. 2002).
The family code also provides a list of factors that we will consider in conjunction with
the Holley factors. See TEX. FAM. CODE ANN. § 263.307(b) (West 2019). These include (1) the
child’s age and physical and mental vulnerabilities; (2) the magnitude, frequency, and
circumstances of the harm to the child; (3) the results of psychiatric, psychological, or
developmental evaluations of the child, the child’s parents, other family members, or others who
have access to the child’s home; (4) whether there is a history of substance abuse by the child’s
family or others who have access to the child’s home; (5) the willingness and ability of the
child’s family to seek, accept, and complete counseling services and cooperate with and facilitate
an appropriate agency’s close supervision; (6) the willingness and ability of the child’s family to
effect positive environmental and personal changes in a reasonable period of time; (7) whether
the child’s family demonstrates adequate parenting skills; and (8) whether an adequate social
support system consisting of an extended family and friends is available to the child. See id.
§ 263.307(b)(1), (3), (6), (8), (10), (11), (12), (13).
Analysis
M.J., who was twenty-four years old at the time of trial, testified that she ran away from
home several times as a teenager, smoked marijuana, and did not graduate from high school.

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She testified that she lived with her parents in Nevada from A.J.’s birth until the case began.
D.A., M.J.’s father, stated that M.J. randomly took A.J. to Texas one day.
The evidence at trial further showed that M.J. took A.J., who was at that time eight
months old, to Woodland Heights Memorial Hospital on May 6, 2022. M.J. told the hospital
staff that she read online that she could take her baby to the hospital, leave her there for up to
two weeks, and return to get her. She told the staff that she needed a break. The hospital called
both Lufkin Police Department and the Department. The officers testified that they responded to
the hospital for a welfare concern. The baby did not appear to be in danger or need medical
treatment. The officers stayed at the hospital until A.J. was transferred into Department custody,
and then they left. No charges were filed against M.J.
During the pendency of the case, M.J. lived in Nevada. When A.J. was with a foster
family in Texas, M.J. had virtual visits with A.J. According to Lashunda Vinson, a
conservatorship worker, the virtual visits “went horrible.” Instead of focusing on the child, M.J.
focused on what was happening around A.J. in the foster home. Vinson found the visits
concerning because of the very little interaction, very little bond between M.J. and A.J. Vinson
also stated that M.J. always complained about A.J.’s hair or snacks. According to Vinson, M.J.
always found the negatives and would not notice positives. For example, if M.J. saw a picture of
A.J. smiling and happy, M.J. complained about the way her hair was styled. Court Appointed
Special Advocates (CASA) paid for M.J. to visit A.J. in Texas. M.J. came for three days and had
in-person visits, which went “pretty well.”
D.A. testified that M.J.’s life is controlled by a man named Brandon. According to D.A.,
M.J. does whatever Brandon says and will drop anything and everything when he asks. For
instance, she once left A.J. alone with the front door open when Brandon called. D.A. and his
wife discovered A.J. downstairs alone and locked the front door. When M.J. returned, she was
high and smelled of marijuana. During this case, M.J. had supervised visits at their house after
A.J. was placed with D.A. and his wife. They gave her as much visitation as she requested
because they felt it was important. However, according to D.A., M.J. did not like having to be
supervised or follow their rules. Most recently, she tried to leave with A.J. D.A. testified that
M.J. does not want A.J. with family because she wants to take A.J. to a different state, or even
Canada, and change her name to avoid the Department’s continued involvement. He expressed
concern that if M.J. obtained custody, she would give A.J. away. M.J. has no patience and cannot

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even spend fifteen minutes with A.J. D.A. testified that he does not trust M.J. because of her
plans to kidnap A.J. and take her to Canada with a drug dealer, Brandon. He testified that he
believes Brandon is a drug dealer based on his interactions with M.J. and that M.J. uses drugs
and keeps drug paraphernalia in her bag. He testified that he and his wife were able to ensure
that M.J. did not mistreat A.J. M.J. confirmed that she smoked marijuana while she was out with
Brandon.
The evidence also showed that M.J. disregards medical advice. A.J. suffered recurrent ear
infections and the doctor recommended tubes. M.J. refused to allow it. Eventually, the court
held a hearing and ordered the procedure be done. A.J. had to have tubes placed in her ears
before she would be permitted to fly to Nevada for placement with D.A. M.J. was also reluctant
to give A.J.’s medical records to the Department. By the time the Department obtained the
records, A.J. had received a double vaccination. M.J. also refused to allow A.J. to receive her
fifteen-month vaccinations.
In addition, M.J.’s behavior was described as “erratic.” Department investigator Aubrey
Fields testified M.J. sent her “30 to 40 text messages a day, very random, very erratic, not
necessarily in context of the care or wellbeing” of A.J. The evidence showed that M.J. did not
activate her camera during some of the virtual visits with A.J. And court-appointed advocate
Kelley Moore characterized M.J.’s texts as “abusive” because she repetitively asked the same
questions as she disliked Moore’s answers. Moore further opined that M.J. disregarded anyone
who tried to tell her what to do, which affected A.J.’s safety. She also stated that M.J. engages in
behavior that is dangerous to A.J. Vinson testified that M.J. did not change her behavior during
the pendency of the case. While M.J. may have completed portions of her service plan, Vinson
testified M.J. treated the service plan’s requirements as a checklist instead of actual behavior
modifications.
Based on the evidence, the jury could have concluded that M.J. had a history of substance
abuse and other concerning behaviors that continued after A.J.’s birth, resulting in M.J.
disregarding her parental responsibilities. Thus, the jury could have determined these behaviors
show a potential emotional or physical danger to A.J. See In Interest of S.T., 508 S.W.3d 482,
492 (Tex. App.—Fort Worth 2015, no pet.). Furthermore, based on the evidence that M.J.
attempted to leave A.J. at a hospital and concerns she would again abandon A.J., the jury could
reasonably conclude that appointing M.J. possessory conservator is not in A.J.’s best interest. As

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such, the trial court could reasonably conclude that denying M.J. access to A.J. was in A.J.’s best
interest. See J.C. v. Tex. Dep’t of Family & Prot. Servs., No. 03-12-00670-CV, 2013 WL
1405892, at *8 (Tex. App.—Austin Apr. 3, 2013, no pet.) (mem. op.) (trial court did not abuse
discretion in denying father visitation and access “at this time” when father was imprisoned and
children were very young); In re W.H.M., No. 01-00-01396-CV, 2003 WL 22254713, at *9-10
(Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.) (upholding jury’s implied
findings that allowing father access to child would endanger emotional or physical welfare when
evidence showed likelihood child would be sexually assaulted by child’s mother if returned to
father’s care).
Therefore, we hold the evidence is sufficient to support the jury’s finding, and the trial
court’s order, that appointment of M.J. as possessory conservator is not in A.J.’s best interest and
would endanger A.J.’s physical or emotional welfare. See J.C., 2013 WL 1405892, at *8. 2 We
overrule M.J.’s first issue.

LACK OF HEARING
In her second issue, M.J. urges the trial court erred by not holding a hearing following the
jury’s verdict on the issue of possessory conservatorship. In this case, the jury was asked
whether M.J. should be appointed possessory conservator, and the jury answered in the negative.
M.J. argues that the trial court “assumed” M.J. was not to be offered possession or an access
schedule, which effectively allowed the jury to determine a term or condition of possession or
access, which is impermissible.
Under the Texas Family Code, the jury is not permitted to determine a term or condition
of possession of or access to a child. TEX. FAM. CODE ANN. § 105.002(c)(2)(B). However, the
Family Code also states that a party is entitled to a verdict by the jury “and the court may not
contravene a jury verdict” on the issue of the appointment of a possessory conservator. Id.
§ 105.002(c)(1)(C). Furthermore, a finding that a parent should not be appointed possessory
conservator because it would endanger the emotional or physical well-being of the child
precludes the trial court from granting the parent any possession of or access to the child.
Hopkins v. Hopkins, 853 S.W.2d 134, 138 (Tex. App.—Corpus Christi 1993, no writ). And, as

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It is important to note that because M.J.’s parental rights were not terminated, should circumstances
change, she may file a motion to modify the order. See TEX. FAM. CODE ANN. § 156.101 (West 2014).

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discussed above, the evidence is sufficient to support the finding that appointment of M.J. as
possessory conservator is not in A.J.’s best interest and would endanger A.J.’s emotional or
physical wellbeing. Therefore, the trial court did not abuse its discretion in denying M.J.
possession and access to A.J. We overrule M.J.’s second issue.

DISPOSITION
Having overruled M.J.’s two issues, we affirm the trial court’s judgment.

GREG NEELEY
Justice
Opinion delivered August 23, 2023.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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COURT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

AUGUST 23, 2023

NO. 12-23-00079-CV

IN THE INTEREST OF A.J., A CHILD

Appeal from the County Court at Law No. 2
of Angelina County, Texas (Tr.Ct.No. CV-00264-22-05)

THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed for which execution may issue, and that this
decision be certified to the court below for observance.

Justice Greg Neeley.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

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