In the Interest of M.R.H., M.J.H., Jr., F.A.H., and M.C.H., Children v. the State of Texas

Affirmed and Memorandum Opinion filed October 29, 2024

In The

Fourteenth Court of Appeals

NO. 14-24-00368-CV

IN THE INTEREST OF M.R.H., M.J.H., JR., F.A.H., AND M.C.H.,
CHILDREN

On Appeal from the 313th District Court
Harris County, Texas
Trial Court Cause No. 2022-01239J

MEMORANDUM OPINION

Appellant M. H. (Mother) appeals from the trial court’s Final Decree in a
Suit Affecting the Parent-Child Relationship which appointed Mother to be
possessory conservator of her four children and appointed the maternal
grandparents as the joint managing conservators. Mother argues the trial court
abused its discretion in two ways. First, Mother asserts that insufficient evidence
supports the trial court’s decision to appoint the maternal grandparents as the joint
managing conservators of the children. Second, Mother contends that insufficient
evidence supports the trial court’s decision to appoint her a possessory conservator
with restricted access to the children. Because we conclude that sufficient
evidence supports both decisions by the trial court, we affirm.

BACKGROUND

The Department of Family and Protective Services (the Department) filed an
“Original Motion to Modify for Conservatorship, and for Termination in a Suit
Affecting the Parent-Child Relationship” related to four children: M.R.H. (Mindy),
M.J.H., Jr. (Mitch), F.A.H. (Fran) and M.C.H. (Max). At the time of the trial,
Mindy was twelve, Mitch was nine, Fran was four, and Max was two. The
children were removed from Mother and Father’s residence and the trial court
placed them in the Department’s temporary conservatorship on an emergency basis
that same day. A show cause hearing was held soon thereafter and the trial court
named the Department temporary managing conservator of the children. The case
eventually went to trial in early 2024. Several exhibits, including the Removal
Affidavit, were admitted into evidence without objection prior to the start of
witness testimony.

Shawn Carter

Shawn Carter, the Department caseworker assigned to the children, was the
first witness to testify. Carter testified that he had been the caseworker for about
six months at the time the trial commenced. Carter stated that the four children
had been placed with the maternal grandparents and they are doing well in the
placement. Carter continued that the Department’s goal for the children was
“relative or fictive kin conservatorship with a concurrent goal of relative or fictive
kin adoption.” Carter stated that the maternal grandparents had agreed to accept
Permanency Care Benefits and were working on getting licensed at the time of
trial.

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Carter testified that the children were brought into the Department’s care for
multiple reasons. One reason arose because Fran swallowed magnets and had to
be hospitalized. The allegation was that the children were not being supervised
when they accompanied their parents to work. In addition, the oldest daughter,
Mindy, reported that M. H., Sr. (Father) had sexually assaulted her. Carter further
testified that Mindy eventually recanted her allegation against Father. According
to Carter, Father also had other sexual assault charges predating the Department’s
involvement. The alleged victim in those cases was his client at a massage parlor.

The Department also alleged that Father allowed ten-month-old Max to go
underwater while bathing him because Father was not paying attention. At the
time that Fran was hospitalized, Father seemed to suffer a psychotic break and a
mental health warrant was issued for him. A family plan of service was developed
for Father. Carter testified that Father participated in some parts of the plan, such
as a psychiatric evaluation. The evaluation stated Father may need psychotropic
medications and also that he needs to accept that these medications were essential
for him to be medically compliant. Carter continued that he was unaware of
Father’s status, including whether he was complying with the medication
requirement, because he had not spoken with Father for several months. Prior to
that last conversation, Carter testified that he only had contact with Father via text,
but even this rarely occurred. Carter stated that he had reached out to the provider
who was to administer the psychological evaluation, but he had not heard back.
Carter therefore was unable to confirm whether Father had completed the
psychological evaluation.

Carter reported that his last meeting with Father occurred in a Dollar Tree
parking lot. Carter stated that Father was uncooperative during the meeting.
Carter testified that Father blamed the Department for Fran swallowing the

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magnets. Carter continued that he did not understand what Father was saying
because it did not make sense. Carter said that Father then started talking about
demons and God, among other things. Carter did not think Father appeared
rational or properly medicated during this meeting. Father then told Carter that he
did not want any involvement with the Department and that the Department should
just deal with Mother and give the children to her. When asked about his contact
with Father since that parking-lot meeting, Carter replied that Father occasionally
responds to text messages. Carter continued that Father showed no interest in
scheduling another face-to-face meeting.

Carter testified that Father was asked to participate in couples therapy with
Mother. Carter further indicated this therapy started just before trial. Carter said
that the referrals were made months before the therapy started and he did not know
why there was a delay in starting the therapy. Carter testified that Father was
asked to complete a domestic violence evaluation, but he did not do so. Carter
continued that Father also did not complete his individual therapy. Carter
explained that Father was unsuccessfully discharged from the therapy because the
therapist did not believe Father had the empathy needed to complete treatment
successfully.

Carter’s testimony then turned to Father’s employment. Carter testified that
he had not received pay stubs or any other documentation confirming Father
worked at Dollar Tree. Carter testified Father was living in a shed in the back of
the family’s burned home. Carter visited the shed the day before and stated that it
was not suitable for children. Carter testified Father has not visited the children
since Carter became the caseworker on the case.

In recounting the reasons the Department intervened and brought the
children into the Department’s care, Carter stated that Mother reported being

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scared and suicidal. The children reported that Mother would go through periods
of time during which she would stay in her room all day, leaving Mindy
responsible for their care. Carter then turned to Mother’s services. Carter reported
Mother had completed family therapy with the two oldest children but the therapist
raised concerns about Mother’s behavior during the sessions. The therapist
thought Mother was overbearing towards the children. The children’s most
strongly expressed concern with the therapy was that the sessions were early on
Saturday mornings. Mindy stated that she did not understand why her mother
became so emotional during the sessions. The children also expressed concern that
Father would return to their home. The therapist recommended that (1) Mother
complete a psychological evaluation, (2) therapy with the children should cease,
(3) Mother should continue individual therapy, and (4) the children should stay
with their grandparents. Mother completed her psychological evaluation the
Monday before the trial began. Carter reported that Mother had previously
completed a psychological evaluation in September of 2022. Mother also
completed two psychiatric evaluations, one in November of 2022 and the other in
April of 2023. Carter did not know why a second psychiatric evaluation was
completed. Carter testified that the evaluations resulted in an ADHD diagnosis, a
bipolar diagnosis, and an anxiety diagnosis. The evaluations also recommended
that Mother take parenting classes and substance abuse programming. Carter
reported Mother had been drug tested and she had not tested positive since he
became involved in the case.

Carter testified Mother has visited the children during the case and that he
has attended the visits. Carter reported Mother did a great job balancing her time
between the children. Carter described Mother as engaged and loving. Carter
stated Mother has not missed any visits with the children. Carter stated there were

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reports that Mother told the children that she was visiting them for the last time.
Mindy expressed concern after that visit about Mother’s mental health. Based on
concerns about Mother’s mental health and possible suicidal ideation, the
Department requested continued supervised visitations between Mother and the
children.

According to Carter, Mother lives in her own home. Carter visited Mother’s
home the day before his testimony. Carter testified that Mother’s home was clean
and orderly compared to the first time he visited. Carter described Mother’s home
during his first visit as dirty and unkempt. During his first visit Carter said he
found bags of garbage in the home and observed feces in the kitchen area.
According to Carter, Mother had two roommates, but Mother told Carter the
roommates would be leaving at the end of the month. Carter stated that Mother’s
roommates were eighteen and nineteen. According to Carter, no background
checks had been completed on the roommates. Carter explained they would be
essential if Mother was allowed unsupervised visits with the children.

Carter testified Mother is employed, which he verified by visiting her place
of employment. Carter did not know the date Mother started her employment, but
said Mother has been employed at the same place since he has been the caseworker
on the case. In addition, Mother reported that Father is giving her $2000 a month.

Carter testified that Mindy is working with a therapist. Carter said the
therapist is helping Mindy to adjust to living with her grandparents and to deal
with the domestic violence she observed in her parents’ home.

According to Carter, there were reports that Mother recorded Mitch walking
home from school during the case. Carter testified this behavior created a concern
for the Department because it was not appropriate behavior by Mother. Carter
explained that Mitch told him that he saw Mother’s car, but he did not see Mother.
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Carter also testified that Mitch was upset because Mother had parked near the
grandparents’ home. Carter said Mother did not have permission to be near the
grandparents’ home outside of visitation times.

Carter reported that Mother was in therapy with her mother, M. L.
(Grandmother). Only one session had been completed by the time of Carter’s
testimony. Carter said the therapy was ordered after Mother stormed out of court
hearing earlier in this case. Carter explained that there had been tension between
Grandmother and Mother during the entire case and that Grandmother originally
did not want to participate in the therapy. Carter testified that Mother was now
willing to participate.

Carter does not believe Mother can provide a safe and stable environment
for her children. Carter testified that the therapist who worked with Mother and
Father stated there was not much she could do with them because they denied any
domestic violence concerns and planned to remain together. According to Carter,
the children reported there is a lot of arguing and some domestic violence between
their parents. Carter also testified that Mother continues to demonstrate a strong
sense of loyalty to Father.

Carter said he believes that even though Mother was successfully
discharged, she needs to continue receiving individual therapy. Carter reported
Mother continues to deny Father acted inappropriately with Mindy. Carter agreed
that Mother extends empathy to Father, but not to her daughter Mindy.

Carter testified that Mindy did not request visits with Mother at one time,
but she continued voluntarily visiting Mother. Carter reported that Mindy was
doing well in her placement with her grandparents and also in school. According
to Carter, Mindy indicated that she is willing to go home if Father is not allowed
back in the home. Mindy told Carter that she does not want Father around her or
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her friends.

Carter then testified about Mitch, who was nine at the time of trial.
According to Carter, Mitch is doing well, he is passing his school classes, and is
also in therapy. Carter testified that Mitch informed him that he would be willing
to go home to Mother if Father was not around or in the home. During his
testimony Carter explained that when he asked Mitch whether he wanted to stay
with his grandparents or live with Mother, Mitch stated he wants to stay with his
grandparents. According to Carter, Mitch mentioned domestic violence in the
home, Mother attempting suicide, and an incident during which Mitch said there
were knives all over the floor and he was afraid Father would stab someone. When
asked about more visitation time with Mother in the future, Mitch’s biggest
concern was missing his after-school art program. According to Carter, Mitch did
not express an interest in spending more time with Mother.

Carter testified that the two youngest children, Max and Fran, go to daycare
where they are doing well. Carter further testified that none of the children have
special needs.

According to Carter, Mother and Father are married. Carter stated he
believes the relationship is not over between Mother and Father. Carter testified
that he believes Mother and Father are still living together but he admitted he did
not have physical proof. Carter testified that Grandmother and the children have
told him they think Father is still living with Mother.

Carter testified the Department believes Mother should continue to have
visitations rights with the children. He also testified Mother’s visitations should be
“supervised at all times.”

Grandmother

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Grandmother is the maternal grandmother of the four children.
Grandmother and her husband, C. L., intervened in the litigation. Grandmother
testified the children have been in her care and that she and her husband intervened
to ensure they had appropriate rights to the children. Grandmother testified that, at
the beginning of the case, she and her husband thought they would be a temporary
placement for the children until Mother “got right.” Grandmother said that Mother
promised they would get through this situation together, without Father.
According to Grandmother, Mother then decided not to do that. Grandmother said
they found out Father was living with Mother again and they were back together.
Grandmother testified Mother was telling them that she was not with Father, “but
she was.” Grandmother testified that she has seen Father with Mother while this
case was pending. Grandmother said the last time she saw them together was late
the previous year.

Grandmother explained that Mother has five total children. She testified
Ferdinand is Mother’s oldest son and is now an adult. Grandmother testified
Father has two other daughters who live with their grandparents and Father has no
rights to them. Grandmother said that Department investigations of Mother and
Father started when Ferdinand was young. Grandmother described most of these
early investigations as over “stupid stuff.” Grandmother said she noticed problems
developed just before Fran, the second-youngest child, was born. When asked if
she noticed at that time any “oddness” in Father’s behavior, Grandmother
responded that she did. According to Grandmother, this behavior included Father
“talking in tongues.” Grandmother also stated that Father would wake up during
the night and tell Mother that her parents did not love her and wanted her dead.
Grandmother testified that there are videos of this behavior taken by Mother and
sent to Mother’s parents. Grandmother said that Mother initially insisted that she

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could handle Father’s behavior, but then Fran was born with drugs in her system.
Grandmother said that she had no idea Mother was using illegal drugs.

Grandmother testified she hopes that her relationship with Mother will
improve. Grandmother does not think Mother is completely rehabilitated, despite
completing counseling. Grandmother thinks Mother can continue to improve if
she takes the offered Department services seriously. Grandmother asked the trial
court to order supervised visitations for Mother because Mother continues to do
what Father tells her to do. Grandmother also expressed concern that Mother and
Father would disappear with the children if Mother was allowed unsupervised
visitation. Grandmother was also concerned about Mother’s mental state.
Grandmother testified that she and Grandfather have discussed supervising visits
between Mother and her children in their own home, but she did not think it would
be a good idea because Mother does not like their rules. Grandmother also
testified that Mother can “run over [us] like a bulldozer.” Grandmother explained
that she and her husband would like to get to a point where they could supervise
visitations but it was not possible at that time because Mother “seems to hate
[them] so much right now.” When asked whether her oldest grandchild,
Ferdinand, could handle the supervised visits, Grandmother testified that she did
not believe so because Ferdinand blames the grandparents for what has happened.
Grandmother also stated that Ferdinand is away in college trying to get his own life
together.

According to Grandmother, Mother agreed to provide $200 a month to the
grandparents for the children. Grandmother went on that Mother is behind on
those agreed payments. Grandmother also testified about conversations she has
had with Mindy, her oldest granddaughter. According to Grandmother, Mindy
expressed “fear about things going back to the way they were because there was

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abuse towards the kids too.” Mindy told Grandmother about Mother yelling at
Fran, her youngest daughter, and blaming her for the fighting between the parents.
Mindy also told Grandmother that Mother hit Mitch, the middle grandson, all the
time.

Grandmother said that Mother threatened suicide “thousands of times.”
Grandmother agreed that Mother’s first attempt occurred when Mother was 17.
During this attempt Mother swallowed pills. Grandmother was also aware of an
incident in 2019 when Mother took twenty Xanax pills attempting to commit
suicide. Grandmother explained this attempt was in reaction to Father accusing
Mother of having an affair. Grandmother said Father’s accusation came out of his
belief that Fran was not his child. Grandmother continued that Mother told her that
a DNA test had been done and it established that Fran was Father’s child.

Grandmother testified that she and her husband were not contacted by the
Department when the Department investigated Mother about allegations that she
was physically neglecting Ferdinand when he was younger. According to
Grandmother, Mother did not engage in services with the Department during these
earlier investigations. Grandmother testified that Mother did not start services with
the Department until the four younger children were taken into Department
custody. Grandmother testified that the first time they were contacted by the
Department about being a placement for the four children did not occur until 2022.

Mother

Mother testified during the trial as well. Mother was initially asked about
the fire that burned the family’s home down.1 Mother explained that the fire
department said the fire was caused by faulty wiring. Mother explained that, at the

1
The house fire occurred in June of 2022.

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time of the fire, Ferdinand and Fran were living with Grandmother. According to
Mother, they continued to live at Grandmother’s after the fire. Mother admitted
that she and Father were out of the house when the fire occurred and that they had
left three children under the age of 10 in the house. Mother testified that, after the
fire, she, Father, Mindy, Mitch, and Max went to live in a hotel. Mother testified it
was after the house fire that she first noticed Father was having serious mental
health issues.

Mother was then asked what she “would like to see from this case?” Mother
responded that she just wanted “her kids home with me and me alone.” This in
turn led to questions about Father’s status. Mother was asked if that meant Father
would not be part of her family anymore. Mother answered: “For right now until
this case is decided.” Mother continued that, from there, it depends on whether
Father gets the mental health help he needs and if the children want to see him.
Mother said contact with Father is not up to her. Mother said that Father’s mental
health issues are all related to post-traumatic stress. Mother said that Father is
working on his mental health. Mother also testified that Father has told Mother
that he will provide for his family. Mother said “he gives me money.” Mother
continued that was “all I need him for right now.”

Mother was then asked about what type of access she would like if the
children are not returned to her. Mother responded that she would like
unsupervised access to the children. Mother testified that it would be nice to visit
with the oldest children separately from the younger children because the older
children do not like the attention being taken from them by their younger siblings.

The questioning then turned to Mother’s employment situation. Mother
explained that she sought employment because “CPS told us to separate.” Mother
stated that she is a retail manager at Claire’s and she also works part-time at Build-

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a-Bear. Mother testified that she has become friends with her manager at Claire’s
and that her manager can supervise visits between Mother and her children.

Mother testified that she did have postpartum depression and a thyroid
disorder when she spoke to a caseworker earlier in the year. Mother stated that she
experiences anxiety and depression, and she has a thyroid condition. She
continued that she takes medication for all three conditions.

During the trial Mother testified that Max did go underwater while they were
living in a hotel room after their house burned. Mother stated that Father was
bathing Max while she was on the toilet. Mother testified that she reacted faster
than Father and grabbed Max first. Mother testified that Mindy also saw Max go
underwater. Mother explained that Mindy described Father as “zoned out.” (ID)
Mother denied that Father had “zoned out” during the incident and denied that she
had told an investigator that Father had “zoned out.” Mother, however, had
previously reported that Father “zoned out” while Max was in the bathtub and he
went underwater. In her earlier description of the incident, Mother reported that
she heard Max coughing and she went into the bathroom where Father admitted
that he “zoned out.”

Mother denied Father had been picked up on a mental health warrant.
Mother testified that one of Father’s massage clients was concerned because Father
“was talking a lot about God and Jesus.” Mother denied that she told the
caseworker that Father thought he was God. Mother testified that while Father did
not think he was God, he did believe that God talked to him. Mother continued
that she has always known that he did not need to be alone with the children but
said she did not know how dire his mental health was until his criminal attorney
informed her that Father was incapable of standing trial. Mother admitted she
thought Father was incompetent during Covid. Mother testified that she and Father

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owned a massage business. Mother continued that when the Department told her
she and Father needed “to split,” Father started working for Dollar Tree.

Mother denied she told the Department’s caseworker that she was suicidal
but “did not have a plan.” Mother explained that she told her therapist she used the
words she did because she did not have a better way to express her frustration.
Mother testified that sometimes she gets frustrated and she “want[s] to disappear.”
Mother continued that her therapist said that “sounds like suicidal tendencies” and
told Mother she needed to watch how she says “those things.” Mother did admit
that she swallowed pills when she was seventeen. Mother denied swallowing pills
in 2019. Mother said she did take old medication that she had for anxiety so she
could sleep during a rough pregnancy. Mother denied this incident was a suicide
attempt.

The trial judge asked Mother about Father’s statement that Mother had tried
to cut herself with a knife in 2019. Mother denied this incident occurred. Mother
did acknowledge that she texted her mother, Grandmother, about committing
suicide many times.

Mother was asked about the allegation that she shook Ferdinand, her oldest
son, and had a filthy apartment. Mother denied ever shaking Ferdinand. Mother
testified that she was informed the investigation “was cleared up.” Mother
admitted that after Ferdinand was born she did have a hard time keeping her home
clean and managing being a mother by herself. Mother testified it was at this time
that she left Texas and moved to Florida where she lived with an aunt. Mother
moved when Ferdinand was around six months old and she remained in Florida for
about three years.

Mother testified that she met Father after she moved back to Texas.
According to Mother, this would have been about 2009. The trial judge then asked
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Mother about allegations that she and Father had heated arguments and engaged in
domestic violence. Mother admitted that she was not “proud of it,” but the
allegations were “slightly true.” Mother explained that she and Father argued a
great deal during the Covid pandemic lockdowns. Mother said that she was trying
to manage the children by herself and Father was not able to earn an income as a
masseuse. Mother admitted they yelled a lot. Mother did not deny having bruises
on her eyes and legs but said that she bruises easily and has random bruises
without explanation. Mother agreed that she told the caseworker she attacked
Father and Father headbutted her. Mother said this incident occurred after Fran
was born.

Mother testified Father has been charged with sexual assault of a massage
client. Mother testified there is not a trial date because Father is “not doing good
mentally right now.” Father’s attorney calls Mother to make certain Father gets to
court on time. When this happens, Mother messages Father to remind him and she
also helps him figure out how to get to court because Father does not have a car.
Mother continued that Father walks to work unless he calls her to pick him up, a
friend loans him a car, or Mother buys him an Uber.

Mother admitted that she relies on Father to provide her $2,000 a month.
When the trial judge asked Mother what her back-up plan was if Father goes to
jail, Mother responded that she has two potential roommates so long as
Grandmother agrees to not have the roommates followed. Mother further testified
that she was able to obtain a lease in her name. Mother testified that she currently
lives alone because her friend is too scared to move in.

Mother was then asked about concerns she has over the grandparents being
named primary conservators of the children. Mother testified that she is concerned
Grandmother will move to Maine with the children if she is named a primary

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conservator. Mother also expressed concern that the grandparents would not treat
Mitch’s ADHD properly because they “don’t acknowledge [his] ADHD in full.”
Mother stated that Grandmother told her Mitch’s ADHD is “not extreme enough”
to be considered and believes “we need to get back to punishing them the way we
used to back in the old times.” Mother said the grandparents do not punish Mitch
correctly as a result of this belief.

The questioning then turned back to Father’s status. When asked if she was
able to keep Father “out of the picture in [her] household” Mother responded that
she could. Mother also testified that she was not aware of any efforts by Father to
see the children during the course of the case. She also testified that Father had
never shown up at any of her supervised visits with the children and had never
asked about when the visits would occur. Mother admitted she needed to be
protective of her children when it came to Father. She also testified that she
believed she could be protective of her children against Father. Mother explained
that she understood Father was “not in the right head space right now” and she was
not certain how he would do around the youngest child because Father did not do
well with babies.

Mother said she would like to work on her relationship with Mindy during
therapy. Mother said therapy was not successful the first time because she would
speak over Mindy and also because Mitch was present.

Mother testified that Ferdinand attends college in Corpus Christi. Mother
testified that she supports him to the extent she can by providing money when he
needs it. Mother explained that this could be $20 or it could be $250. Mother
testified that her monthly income is $2,000. When asked what she would do if she
did not have the money Ferdinand needed, Mother answered that she would take it
from Father’s bank account. Mother explained that she still has access to the joint

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account with Father.

Attention then turned to Father’s children from a prior marriage. Regarding
Father’s other children, Mother stated she was with Father when he went to court
in those Department cases. Mother did not recall being present when a protective
order was issued against Father during those cases.

Next Mother was questioned about Mindy’s sexual abuse allegations against
Father. Mother testified she first heard about the allegations when her visits were
stopped. Mother said she was concerned about the allegations until Mindy told her
it was not true. Mother continued that she was also not concerned because the
children were always with her or on cameras in the house. Mother continued that
Mindy made the abuse allegations after she had been placed with her grandparents
and after the grandparents could talk to her about “things that they should be
saying to keep themselves together.” Mother testified that she had cameras all
over her home and the children were never outside the view of the cameras. In
later testimony, Mother said she did not leave her children alone with Father after
the house fire.

Delilah Dupree

Delilah Dupree served as the court-appointed child advocate and guardian ad
litem for the children. Dupree had worked on the case almost since its inception.
Dupree recommended that the grandparents be named permanent managing
conservators. Dupree also recommended supervised visitation for Mother and no
visitation for Father. Dupree said her recommendations were based on the
requests of the children. Dupree testified the children reported not feeling safe
with either parent. Dupree said the children have all made progress while living
with the grandparents. She additionally testified that all of the children had some
level of delay in their education or had mental health concerns that have been
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addressed by their grandparents.

Dupree testified that Mother’s mental health continues to go untreated.
According to Dupree, Mother cannot provide a safe place for her children because
she remains unprotective when Father is involved. Dupree continued that the
grandparents have demonstrated they are capable of providing a safe and stable
place for the children.

Dupree further testified that the children do want supervised contact with
Mother. The children have told Dupree however, that they do not believe Mother
will protect them from Father. The children have also talked about the multiple
times they feared Mother would commit suicide.

Dupree next testified that the parents were jointly ordered to pay $200 a
month for child support. Dupree reported that the support was paid most months.

Dupree’s Court Report was admitted into evidence as Petitioner’s Exhibit 9.
In her report, Dupree recommended that the maternal grandparents be designated
permanent managing conservators of the children.

Angelica Glennon

Glennon identified herself as Mother’s friend and boss at Claire’s. Glennon
testified she has known Mother for about a year and a half. Glennon said that she
has interacted with the children two or three times. Glennon said she is willing to
supervise visits between Mother and the children. Glennon testified that she
allows Mother to borrow one of her cars when Mother needs one. Glennon
admitted that she has a CPS history because she was involved with a partner who
had drug issues. Glennon said they completed services. Glennon testified that her
partner has been sober for eight years.

Glennon has met Father a couple of times. Glennon thinks Father needs “a

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little bit of therapy and a little bit of help.” According to Glennon, Mother has told
her that she does not believe in divorce, but Father should not be around the
children. Glennon continued that Mother’s biggest concern is keeping Father
separate from his children because Mother does not think it is a good idea for him
to be around the children. Mother did tell Glennon about Father’s case regarding
his children from a prior marriage. According to Glennon, Father’s rights had been
terminated and he has not had contact with them since Mother and Father have
been together. According to Glennon, Mother explained that Father had defended
himself against his ex-wife and that the ex-wife had mental illness issues. Finally,
Glennon testified that it would not be in the children’s best interest for Mother to
have a continuing relationship with Father.

Ferdinand

Ferdinand is Mother’s oldest son. Ferdinand has a different father than the
four children involved in this suit. Ferdinand described his relationship with his
half-siblings as close. Ferdinand said that he texts with Mindy, although
sometimes she will call so he can speak with his other siblings. Ferdinand said he
is closest to Fran. Ferdinand reported that he feels comfortable and safe in
Mother’s new home. According to Ferdinand, his stepfather, Father, has come to
the house a couple of times when he has been there. Ferdinand explained that
Father usually comes over between shifts at Dollar Tree. Ferdinand further
testified that his stepfather will sleep in a spare room when he works a late shift at
the Dollar Tree with an early shift the next day.

Ferdinand believes that his siblings do not want to see Father. Ferdinand
said he can supervise visits when he is home from school. Ferdinand stated he had
also lived with his grandparents. Ferdinand said he moved in with his
grandparents after an argument with his Mother and stepfather around semester

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finals. Ferdinand and Fran were living with the grandparents when the house
burned down.

Ferdinand had concerns about how Father treated his mother. Ferdinand
testified that he did not have concerns about how Father treated the children.
Ferdinand said the relationship benefits Mother financially but he does not feel that
the parents’ relationship is a good model for the children.

Ferdinand testified that he never saw any domestic violence between Mother
and Father. Instead, he testified that Mother would harm herself in places where
Ferdinand and the other children would see it happen. Ferdinand said he witnessed
Mother’s suicide attempts. Ferdinand did admit however, that there were loud
arguments between Mother and Father. Ferdinand testified Mother has become
more independent from Father since she started working. Ferdinand thinks that the
Department services have been beneficial.

The court signed its Final Decree in Suit Affecting the Parent-Child
Relationship on May 16, 2024. The decree did not terminate the parent-child
relationship of Mother. The trial court found that it would not be in the best
interest of the children to appoint a parent as managing conservator because doing
so “would significantly impair the children’s physical health or emotional
development.” The trial court did name Mother as a possessory conservator with
restricted rights. 2 The maternal grandparents were named joint managing
conservators of the children. Mother appealed.

ANALYSIS

Mother raises two issues on appeal. We address them in order.

2
The trial court did not appoint Father as a managing or possessory conservator of the
children. Father is not a party to this appeal.

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I. The trial court did not abuse its discretion when it appointed the
maternal grandparents joint managing conservators of the children.
In her first issue, Mother argues the trial court abused its discretion when it
appointed the maternal grandparents joint managing conservators of the children
because there was legally and factually insufficient evidence to overcome the
statutory parental presumption. See Tex. Fam. Code § 151.131 (creating rebuttable
presumption that parent shall be appointed sole or joint managing conservators of
children). Because there is sufficient evidence in the record supporting the trial
court’s determination that appointment of Mother as a managing conservator
would not be in the children’s best interest because the appointment would
significantly impair their physical health or emotional development, we disagree.

A. Standard of review and applicable law

The best interest of a child is always the primary consideration of the court
in determining issues of conservatorship. In re J.J.R.S., 627 S.W.3d 211, 218
(Tex. 2021) (citing Tex. Fam. Code § 153.002). A parent must be appointed a
managing conservator of a child unless the court finds that appointment of the
parent “would not be in the best interest of the child because the appointment
would significantly impair the child’s physical health or emotional development.”
Tex. Fam. Code § 153.131(a).

We review conservatorship determinations for an abuse of discretion. See In
re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Baltzer v. Medina, 240 S.W.3d 469,
474–75 (Tex. App.—Houston [14th Dist.] 2007, no pet.). Generally, a trial court
abuses its discretion by acting arbitrarily, unreasonably, or without reference to any
guiding rules or principles. See Swaab v. Swaab, 282 S.W.3d 519, 524 (Tex.
App.—Houston [14th Dist.] 2008, pet dism’d w.o.j.). We cannot interfere with the
trial court’s ruling so long as there is some evidence of a substantive and probative

21
character to support its decision. See Cox v. Cox, No. 14-22-00853-CV, 2023 WL
6561106, at *4 (Tex. App.—Houston [14th Dist.] Oct. 10, 2023, no pet.) (mem.
op.). A trial court’s finding that appointment of a parent as managing conservator
would significantly impair the child’s physical health or emotional development is
governed by a preponderance-of-the-evidence standard. In re J.A.J., 243 S.W.3d
at 616.

Under this abuse-of-discretion standard, legal and factual sufficiency are not
independent grounds of error, but instead are relevant factors to determine if the
trial court abused its discretion. See Baltzer, 240 S.W.3d at 475; see also
Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). When
examining legal sufficiency, we review the entire record, considering evidence
favorable to the finding if a reasonable factfinder could and disregarding contrary
evidence unless a reasonable factfinder could not. Gunn v. McCoy, 554 S.W.3d
645, 658 (Tex. 2018). We indulge every reasonable inference that would support
the challenged finding. Id. Evidence is legally sufficient if it would enable
reasonable and fair-minded people to reach the decision under review. Id.

For a factual-sufficiency review, we examine the entire record and consider
evidence favorable and contrary to the challenged finding. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986) (per curiam). We may set aside the trial court’s
finding only if it is so contrary to the overwhelming weight of the evidence as to be
clearly wrong and unjust. Id.

“As conservatorship determinations are ‘intensely fact driven,’ the 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.’” In re J.J.R.S., 627 S.W.3d at 218 (quoting Lenz v.
Lenz, 79 S.W.3d 10, 19 (Tex. 2002)). As a result, an appellate court defers to a

22
trial court’s resolution of underlying facts and credibility determinations that may
have affected the trial court’s decision and will not substitute its judgment for that
of the trial court. Walker v. Packer, 827 S.W.2d 833, 839–40 (Tex. 1992).

B. Sufficient evidence supports the trial court’s decision to appoint
the grandparents as joint managing conservators and Mother as a
possessory conservator of the children.

On appeal, Mother argues that the trial court abused its discretion because it
made its conservatorship decision (1) based on speculation and conjecture about
Father’s potential involvement with the children if they were returned to Mother’s
care; and (2) without evidence showing a specific threat that the children would
suffer emotional or physical harm if they were returned to her care. Mother also
points out evidence in the record she argues indicates that she had worked
diligently to be reunited with her children, had become more independent and self-
reliant, and had improved her mental health condition after the Department got
involved with her children. In making this argument, Mother minimizes other
evidence in the record supporting the trial court’s decision and she also overstates
the requirement for evidence of specific actions or omissions that would
significantly impair the children’s physical health or emotional development. See
Danet v. Bhan, 436 S.W.3d 793, 797, n.1 (Tex. 2104) (noting Family Code section
151.131 does not require evidence of specific actions or omissions). With that
preamble, we turn to the record evidence.

The record includes evidence establishing that Father was suffering serious
mental health issues. This evidence includes Mother informing the Department
that a mental health warrant had been issued for Father, but he was released due to
a lack of available beds. Mother also reported that Father had “zoned out” while
Max was in the bathtub allowing Max to slip under the water. Mother reported
that Father claimed he was God and was constantly saying crazy things. Mother
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reported that, because of Father’s behavior, she had to drop him off at the family’s
burnt-out home to get a break from him. Faced with these reports, the Department
had proposed a safety plan that would prevent removal of the children. This plan
required Father to move out of the house. Mother refused to have Father leave,
which prompted the removal of the children.

During the trial, as detailed in the Background section above, Mother largely
retracted her previously reported concerns about Father’s mental health. Despite
these retractions, Mother testified during the trial that she had always known that
Father should not be alone with the children. The trial court, as the trier of fact,
was allowed to disregard Mother’s retractions and believe her original reports
about Father. Qantel Bus. Sys., Inc. v. Custom Controls Co., 761 S.W.2d 302, 304
(Tex. 1988) (stating that in a bench trial the trial court sits as the trier of fact and
law); Arshad v. Am. Express Bank, FSB, 580 S.W.3d 798, 803–04 (Tex. App.—
Houston [14th Dist.] 2019, no pet.) (“The factfinder is the only judge of witness
credibility and the weight to give to testimony.”). The trial court also heard
Mother testify that she accepted that Father could not be part of the family “for
right now until this case is decided.” Thus, the trial court could have reasonably
determined that Mother was not willing or able to protect the children from
Father’s behavior because she would allow him back into the home as soon as the
Department was no longer involved. See Arshad, 580 S.W.3d at 803–04.

There was also other evidence in the record establishing that Father
continued to suffer from mental health issues and should not have access to the
children. This includes Carter’s testimony about his Dollar Tree parking lot
meeting with Father. Carter testified that, during this meeting, Father acted
strangely, and Carter did not believe Father was rational or properly medicated.

There is also evidence in the record that sexual assault allegations had been

24
made against Father over a long period of time. These included an allegation that
Father sexually assaulted his baby daughter by his first wife in 2007. Mindy also
alleged that Father sexually assaulted her, but she later recanted her allegation.
The Department, however, believed Mindy’s original statement. Finally, one of
Father’s massage clients accused him of sexual assault. That charge was pending
at the time of this trial. Mother denied Father acted inappropriately with Mindy
even though, as mentioned above, she testified that she would not leave the
children alone with Father. Again, based on this evidence, the trial court could
have reasonably concluded that Father presented a threat to the children’s physical
health and emotional development and that Mother was not willing, or able, to
protect the children from Father.

Turning to Mother, there is evidence in the record that she also experienced
mental health problems during which she would retreat into her room all day
leaving Mindy to care for the younger children. In addition, Fran swallowed
magnets while under Mother’s care. Fran had to be hospitalized and Mother failed
to bring Fran back for a follow-up medical appointment after that hospitalization.
There were numerous reports throughout the record that Mother frequently had
suicidal thoughts. In addition, Ferdinand testified that he witnessed Mother’s
suicide attempts and that she would harm herself in front of the other children.

While Mother cites to evidence, such as an April 19, 2023, discharge
summary, stating that her mental health had improved, her mental health problems
continued throughout 2023, prompting a new psychological evaluation on January
10, 2024. As stated in this exhibit, Mother successfully completed this therapy, but
the goal of the therapy was to give Mother the skills to take care of herself and
self-manage her emotions without the assistance of therapy. The discharge
summary does not contain an opinion by the clinician that Mother’s mental health

25
issues had been successfully resolved nor that the clinician believed Mother was
ready for the return of her children. Based on this and other evidence in the record
summarized above, the trial court could have reasonably determined that Mother
continued to experience mental health issues that directly impacted her ability to
care for the children.

The record also contains evidence of long-running domestic violence
concerns involving Father and Mother. Father admitted that a restraining order had
been put in place which prohibited him from having any contact with his children
from his previous marriage. Father also admitted that his ex-wife reported that he
“pushed her around,” but he explained that he was only responding to his ex-wife’s
aggression.

Both Mother and Father denied that domestic violence had occurred in their
home. Despite their denials, there was a referral for domestic violence on
November 12, 2019. Mother was seen by Department investigators at that time.
According to the investigators, Mother had bruising around her eyes and on her
legs. Mother told the investigators that Father had “headbutted” her. Father, on
the other hand, stated that Mother hit herself. During the trial, Mother agreed that
she told the Department investigator that she attacked Father and that Father then
headbutted her. Mother testified that she bruises easily and without explanation.
Despite this, Mother still denied the existence of domestic violence.

Despite Mother’s denial, the children disclosed the existence of domestic
violence in the home. Mindy receives therapy to help her process the domestic
violence she witnessed. Grandmother testified that Mitch told her about Mother
frequently hitting and slapping him. Mitch has stated domestic violence in the
home is one reason he wants to stay with his grandparents rather than return to his
Mother’s care. Mitch also reported an incident when there were knives all over the

26
floor and he was afraid that Father was going to stab someone.

Based on the evidence in the record, the trial court could have reasonably
determined that the services extended by the Department to help the parents have
not been successful in alleviating the concern of domestic violence in the home.
The couples’ therapist reported that she could not make progress with the parents
because they denied the existence of any domestic violence in their home. The
therapist said the parents are “locked in step” and intend to stay together
“functioning as they know how.” Finally, Father has not completed any domestic
violence services or individual therapy.

By the time of trial, the parents remained married. The Department, the
grandparents, and the children all believed that the parents were living together.
Grandmother testified that she saw the parents together during the case in late
2023, despite Mother’s statements that she and Father were not together. Finally,
Ferdinand testified Father routinely stays in Mother’s new home.

Based on this evidence, the trial court, as the factfinder, could have
reasonably determined that Father presented a threat to the children’s physical
health and emotional development and determined that it was not in the children’s
best interest to appoint him as a conservator. In addition, based on this evidence,
the trial court could have reasonably believed that Mother would allow Father in
the home and, based on her current denials and own unalleviated nonprotective
behaviors, that Mother would not protect the children from Father or from her own
tendencies, and it was therefore not in the children’s best interest to appoint
Mother as a managing conservator of the children.

Similarly, sufficient evidence supports the trial court’s appointment of the
grandparents as joint managing conservators of the children. In addition to the
evidence recounted above, both the caseworker and the guardian ad litem of the
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children testified that it was in the children’s best interest to remain with the
grandparents and not return to Mother’s home. Carter testified that the children
were doing well living with the grandparents. He stated that Mindy is receiving
needed therapy, Mitch is doing okay in school, and he is in group therapy to help
him process the domestic violence he observed in his parents’ home. Carter
further testified that Max and Fran are both in daycare where they are doing well
and have no special needs.

In addition, Dupree, the children’s guardian ad litem, testified that all of the
children entered the Department’s care with some kind of delay or mental health
concerns. In her report, Dupree stated that the grandparents are meeting all of the
children’s needs and they keep up with all of their appointments. Dupree further
stated in her report that the placement of the children with the grandparents ensures
that every available resource is being used to ensure their mental health and
educational needs are met. Dupree also testified that the grandparents “have
demonstrated that they are capable of providing a safe and stable place for all of
the children.”

We hold that the trial court did not abuse its discretion because legally and
factually sufficient evidence supports the trial court’s conservatorship decision was
in the children’s best interest. We overrule Mother’s first issue on appeal.

II. The trial court did not abuse its discretion when it limited Mother’s
right to possession and access to the children.

In its Final Decree, the trial court appointed Mother to be a possessory
conservator of the children. The trial court also ordered that Mother “shall have
supervised possession of the children at times mutually agreed to in advance by the
parties and supervised by a competent adult of the Managing Conservators
choice.” Finally, the trial court ordered that if the parties could not agree, the

28
Mother’s possession and access would occur on the first and third Saturdays of
each month for two hours. The trial court also ordered that the visits would be
supervised by the Domestic Relations Office Supervised Visitation Program. The
trial court found that this appointment and the possession and access restrictions
imposed did not exceed the restrictions needed to protect the best interest of the
children. In her second issue, Mother argues that the trial court abused its
discretion when it placed arbitrary and unreasonable restrictions on her right to
possession and access to the children. We once again disagree.

Trial court decisions about possession and access are reviewed for an abuse
of discretion. In re J.J.R.S., 627 S.W.3d at 223. The Family Code permits a
restriction or limitation to the extent necessary to protect the children’s best
interest. See Tex. Fam. Code §153.193; In re Harrison, 557 S.W.3d 99, 131 (Tex.
App.—Houston [14th Dist.] 2018, pet. denied) (“A trial court does not abuse its
discretion in restricting a parent’s possession and access when the record contains
evidence to support a finding that such restrictions are in the children’s best
interest.”). Termination is not required when a severe restriction or limitation on
access can also be in the best interest of the child. In re J.J.R.S., 627 S.W.3d at
223. The restriction preserves the possibility that the parent and child may
continue to have a relationship in the future. Id. So long as the trial court made
the necessary findings that the restriction or limitation is in the children's best
interest, the terms of the order are permissible. Id.

There is a rebuttable presumption that the standard possession order
provides the reasonable minimum level of possession and access for a parent
named possessory conservator and is in the best interest of the child. Tex. Fam.
Code. § 153.252. When determining whether to deviate from the standard
possession order, a trial court may consider “(1) the age, developmental status,

29
circumstances, needs, and best interest of the child; (2) the circumstances of the
managing conservator and of the parent named as a possessory conservator; and
(3) any other relevant factor.” Id. § 153.256. Terms of an order that deviates from
the standard possession order “may not exceed those that are required to protect the
best interest of the child.” Id. § 153.193. Further, the trial court must “specify and
expressly state in the order the times and conditions for possession of or access to
the child, unless a party shows good cause why specific orders would not be in the
best interest of the child.” Id. § 153.006(c).

Nonspecific orders issued pursuant to section 153.006(c) can vary, based on
the needs of the case, as to the level of specificity provided by the trial court, and
the amount of discretion left to the parties. See id. § 153.193. Nonspecific orders
are permitted in circumstances where such are necessary to protect a child’s best
interest. In re J.J.R.S., 627 S.W.3d at 221. Whether broad, enforceable visitation
and access guidelines is preferable to an order allowing discretion to the managing
conservators requires a case-by-case determination of the child’s best interest. Id.
at 222.

In addition to the endangerment evidence rebutting the parental presumption
and the best interest evidence supporting the appointment of the grandparents as
managing conservators of the children, there is additional evidence to support the
trial court’s restriction of Mother’s visitation and access to the children instead of
applying a standard possession order to this case. Despite Mother’s statement
otherwise the children able to voice their opinion, Mindy and Mitch, only want
supervised visitation with Mother. Despite all the instability and endangering
conduct, Mother can visit with the children when supervised. Mitch and Mindy
expressed concern about Mother giving Father access to them and about Mother’s
suicide attempts. The trial court could have reasonably concluded that continuing

30
supervised visits and restricting the timeframe, absent a mutual agreement
otherwise, would provide the safest environment for the children and that good
cause for deviating from the standard possession order existed. See In re J.J.R.S.,
627 S.W.3d at 220 (observing that severe restrictions are permissible if it is in the
best interest of the children.).

Mother complains that the visitation and access ordered by the trial court
undermines her ability to maintain a meaningful and nurturing relationship with
her children. We disagree. The appointment of a relative as a managing
conservator and a parent as a possessory conservator with access and visitation
rights, no matter how restricted, avoids the termination of that parent’s parental
rights. The Texas Supreme Court stated:

Requiring termination of parental rights rather than a conservatorship
with severe access restrictions would place trial courts in an
unimaginable bind. Such a harsh rule would force a trial court to
either allow access to a child by a possessory conservator who may
immediately endanger that child’s physical or emotional wellbeing, or
conversely, force the trial court to prematurely sever the parent–child
relationship out of fear that immediate access may cause irreparable
harm to the child. Such a proposition is antithetical to the purpose of
visitation orders, which strive to balance the rights of parents with the
importance of protecting children.
Id. at 222; see Tex. Fam. Code §153.001(a). The trial court in this case could
reasonably have seen these restrictions as in the best interest of the children and a
step short of termination, allowing for flexibility if Mother is able to safely visit
and have access in a less restrictive way. The children can stay in a home with
their grandparents where their needs are met and Mindy and Mitch’s safety
concerns and wishes about visitation are honored.

Mother also objects to the part of the trial court’s decree allowing the
grandparents to choose the visitation monitor. Mother argues that the monitors
31
she offered should have been accepted by the trial court. The first monitor offered
by Mother was her supervisor at Claire’s, Angelica Glennon. Glennon testified
that she had only known Mother for a year and a half, thought that Father needed
only “a little bit of help,” and had been informed by Mother that Father lost his
other children because he defended himself against a mentally-ill wife. Glennon
also had CPS history herself. The trial court could have reasonably concluded that
Glennon did not have sufficient facts to be in the best position to protect the
children and may not be safe herself based on the CPS history.

Mother’s second proposed monitor was her oldest son, Ferdinand.
Ferdinand testified that he was attending college in Corpus Christi and could only
monitor the visits when he returned home. The trial court could have reasonably
determined that Ferdinand lacked the regular availability to fulfill any supervisory
duties if he was appointed the adult responsible for supervising Mother’s visitation
with the children. In addition, nothing in the trial court’s decree prohibits the
grandparents from choosing Ferdinand as the monitor when he is in town and
available.

Finally, Mother argues that the strain in the relationship between Mother and
the grandparents makes the trial court’s decree unworkable. Mother asserts that it
is “questionable” whether the grandparents will be fair when making the
arrangements necessary for Mother’s visitations to occur. The scenario presented
by Mother is remarkably similar to the argument raised by the mother in In re
J.J.R.S.. 627 S.W.3d at 223. There the mother argued that she had no recourse if
the managing conservator arbitrarily withheld access because the orders allowed
for discretion. Id. The Texas Supreme Court said that there were remedies
available to the mother if this occurred. Id. These included filing a contempt
action for disobeying a court order or seeking a modification order if the
32
circumstances had materially or substantially changed. Id. At this stage, Mother
has pointed to no evidence in the record indicating that the grandparents would
arbitrarily deny Mother access to the children. If, in the future, they do, Mother is
not without a remedy. Id. at 224.

We conclude that the trial court did not abuse its discretion when it
appointed Mother to be a possessory conservator and limited her to supervised
visits at the discretion of the managing conservators because sufficient evidence
supports its determination that this was in the best interest of the children. It also
allows for flexibility should the circumstances change to allow greater access and
visitation for Mother without the necessity of court intervention. We overrule
Mother’s second issue.

CONCLUSION

Having overruled Mother’s issues on appeal, we affirm the trial court’s
judgment.

/s/ Jerry Zimmerer
Justice

Panel consists of Justices Jewell, Bourliot, and Zimmerer.

33