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Austin, Texas – Family Law lawyer represented Appellant with appealing the trial court’s final decree as permanent managing conservator of her three sons.
Finally, the Department called the guardian ad litem, Cathy Rothas. When asked
for her recommendation, Rothas informed the court that she did not feel that grounds for
termination existed but that she had “serious concerns about the children being returned to mom
full time.” Rothas explained,
Number one is her work schedule. She works evenings and weekends. She
works a lot of hours. Number two is her support network. Her brother, if I’m not
mistaken, had CPS injury to a child out of Lampasas County. Her child was
injured. That’s how this case started. And then she has CPS history with her
mother as a child. And those are her support people. So those are very
concerning to me.
Additionally, her contact with the Dad, [M.J.]. [Mother’s] phone number and
address have changed, yet [M.J.] is still able to have contact with her. . . .
I really feel like it’s in the best interest and safety of these children that they
remain in their homes and have a relationship with their mom.
The trial court then heard rebuttal testimony from Mother. Concerning the recent
events with M.J., Mother testified that after M.J. moved out of her previous home, he would call
and text her “20 to 30 times a day” and continued to do so throughout 2020 and 2021. Then, two
weeks before the hearing, M.J. went to Mother’s current hoome and broke a window on her car.
According to Mother’s testimony, she reported the window-breaking incident to police. In
addition, even before the incident, she had contacted the county attorney’s office to obtain a
protective order against M.J., but the prosecuting attorney was out of the office on vacation.
Mother denied informing M.J. of the location of her current home and explained
that she did not know how M.J. found her address. When questioned about why she had not
moved from her current home to get away from M.J., she stated, “Because I need the evidence to
prove to the cops. The cops told me that if I moved then there would not be enough evidence to
put the restraining order on him.” When asked whether the police told her not to block him
on her phone, Mother responded, “They told me not to move, they told me not to block him
because there would not be enough evidence against him for the restraining order.” Mother
acknowledged that because of M.J.’s actions, “there [was] a safety concern with her home” and
that the purpose of a protective order was to protect herself and her children.
As to the Department’s and guardian ad litem’s concerns about her work
schedule, Mother testified that if the children were returned to her, she would re-enroll them in
the daycare that they previously attended and that the children had been happy there. She also
testified that she was currently working a lot of hours because she had the time to do so, but that
she would request work hours that aligned with the children’s daycare schedule when they
returned to her care. Finally, Mother denied having contact with her brother who had CPS
history and told the court that while she loved her mother, she would put her children first.
To succeed on its request for managing conservatorship, the Department was
required to rebut that presumption that Mother should be appointed sole managing conservator
by presenting a preponderance of credible evidence that Mother engaged in specific, identifiable
behavior demonstrating that naming her as her children’s managing conservator would
significantly impair the children’s physical or emotional development. See Tex. Fam. Code
§ 263.404(a); In re B.B.M., 291 S.W.3d at 467.
The undisputed evidence presented by the Department at the final hearing
establishes that Mother used marijuana in the past, including shortly after A.B. and N.B. were
removed from her custody in April 2019 and while she was pregnant, and that at the time of
removal, Mother was not attending to some of the children’s basic needs. In addition, Mother
lived with M.J., who was abusive toward her and the children, and she allowed her children to
remain in that unsafe environment for some unspecified period of time before they were
removed. She also downplayed the incident of abuse toward N.B. that resulted in M.J.’s arrest
and N.B. and A.B.’s removal and continued to live with M.J. for seven months after the removal.
In sum, the evidence in support of the Department’s request for managing conservatorship
establishes that, in the past, Mother had used marijuana and, by not leaving M.J., had failed to
provide her children with a safe and stable home.
On the other hand, the trial court also heard evidence that beginning in
January 2020, Mother made significant progress in changing her past behaviors. Department
representatives testified that since this time, Mother has complied with her family-service plan,
maintained continuous employment, and moved into a two-bedroom home that the Department
considers to be suitable and appropriate for the children. In addition, she obtained a protective
order against M.J. in January 2020, after he assaulted her, and was no longer romantically
involved with him. Mother has consistently attended individual therapy, in which she is
addressing her issues with past marijuana use and relationship choices, and she completed
a protective parenting program. Although neither of Mother’s therapists recommended a
monitored return of the children, her most recent therapist recommended a “gradual
reunification” that would “eliminate overwhelming her and the children,” and the Department
considered her unsupervised visits with the children to be going well. Mother submitted to
weekly drug testing and, with the exception of missing one test, has returned “negative” results
since January 2020. Her only positive test was for marijuana in April 2019. There was no
evidence presented suggesting that Mother was ever abusive to the children or that she
committed acts of domestic violence.
By the last day of the final hearing, the primary concern expressed by the
Department was of the continued danger posed by M.J. and, consequently, the safety of Mother’s
home. However, the only evidence of specific acts or omissions by Mother relevant to this
concern was that, although she had reported M.J.’s behavior to the police, she had not yet
obtained a protective order and that, despite months of harassment, she had not moved again or
changed her phone number.
We conclude that the evidence presented by the Department of Mother’s
misconduct—most of which occurred eighteen to twenty-six months before the conclusion of the
final hearing—is factually insufficient to support the trial court’s finding that appointment of
Mother as managing conservator would significantly impair the children’s physical health or
emotional development. See In re S.T., 508 S.W.3d at 492 (in determining whether children
will be significantly impaired, “the material time to consider is the present”). That is, after
considering all of the evidence in a neutral light, we conclude that the overwhelming evidence
shows that Mother has done everything required by her service plan to achieve reunification; that
considering the length of time since her last incident of misconduct, she is presently fit to be the
managing conservator of her children; and that any risk of danger posed by M.J. and by Mother’s
failing to obtain a protective order against him before the final hearing fails to rise above mere
“suspicion or speculation of possible harm.” See In re B.B.M., 291 S.W.3d at 467; Whitworth,
222 S.W.3d at 623 (“The link between the parent’s conduct and harm to the child may not be
based on evidence which merely raises a surmise or speculation of possible harm.”). Therefore,
the trial court’s decision to appoint the Department and not Mother as the children’s permanent
managing conservator was unreasonable and constitutes an abuse of discretion. We sustain
Mother’s sole issue on appeal
Outcome: We reverse that portion of the trial court’s decree appointing the Department as
permanent managing conservator of N.B., A.B., and M.S.J. and remand the case to the trial court for a new trial on the issue of conservatorship.