In re A.V.
| Decision Date | 15 July 2022 |
| Docket Number | 05-20-00966-CV |
| Parties | IN THE INTEREST OF A.V., A CHILD |
| Court | Texas Court of Appeals |
On Appeal from the 469th Judicial District Court Collin County Texas Trial Court Cause No. 469-50370-2020
Before Chief Justice Burns, Justice Schenck, and Justice Partida-Kipness
This appeal involves a final order in an original suit affecting the parent-child relationship (SAPCR) in which the trial court appointed the child's maternal grandparents[1] sole managing conservators and appointed the child's mother a possessory conservator. Mother appeals the SAPCR order and maintains she should have been named the child's sole managing conservator. After reviewing the briefs and the record, we conclude the trial court abused its discretion. We reverse the SAPCR order and remand for further proceedings consistent with this opinion.
Mother gave birth to A.V. in January 2016, when Mother was eighteen years old. She and A.V. lived with Grandparents until A.V was six months old. Mother then moved into an apartment. Mother testified that A.V. moved with her, but Grandmother testified that A.V. continued to live with Grandparents. Regardless, Mother and Grandparents agree they planned for A.V. to live with Mother in the future. According to Grandmother, they agreed that Mother would take the baby "once she got set up," and Grandparents would still help Mother by picking the baby up from day care "and that kind of stuff, but the baby was going to live with her eventually."
A.V continued to live with Grandparents during the following three and a half years. Mother also lived with them at times. The evidence does not show specific dates during which Mother lived with Grandparents and A.V. between July 2016, and September 2019. The record does show, however, that Mother lived at Grandparents' home either exclusively or for extended periods between September 2019, and January 9, 2020. Grandmother testified that Mother lived with her and her husband "for a short time" before they filed the SAPCR petition on January 21, 2020. She did not testify as to what specific dates Mother lived with them prior to filing the petition. But the parties agree that Mother moved out following an argument with Grandmother on January 9, 2020 which was twelve days before Grandparents filed the SAPCR petition. Other evidence indicates Mother lived with Grandparents for a few months before the January 9, 2020 argument. For example, Mother testified that her relationship with her parents had become "toxic" and had "ended" months before the argument, but she remained in their home and "tried to stick it out because I felt like I had nowhere to go." Text messages presented by Grandparents at trial show Mother was living with Grandparents in September 2019, four months before Grandparents filed the SAPCR petition. Further, in her affidavit in support of the SAPCR petition, Grandmother describes incidents that occurred at their home in November 2019, and December 2019, when Mother was living with A.V. and Grandparents.
In January 2020, Mill Creek Residential hired Mother to work as an assistant property manager at one of the company's properties in Seattle, Washington. The job paid Mother $50,000 annually plus a fifty percent discount on rent at the property. Mother testified that she planned to move to Seattle with A.V. so her daughter "could experience stability" with Mother and to get away from the "toxic environment" Mother experienced living with Grandparents. On January 9, 2020, Mother told Grandmother about the Seattle job and her plans to move there with A.V. The women argued. Mother recorded the argument. The recordings capture both women yelling angrily at each, Mother accusing Grandmother of hitting her, and Mother telling Grandmother to stop touching her. Mother testified that the argument became physical. According to Mother, Grandmother slapped her, pushed her on the bed, and pinned her down. Grandmother denies hitting Mother and maintains that the "slapping and hitting sounds" heard on the recording are her trying to get her phone back from Mother. Mother moved out of the house following the argument.
Grandparents filed their original SAPCR petition on January 21, 2020. They cited Mother's plans to move to Seattle with A.V. as a basis for obtaining a temporary restraining order. Grandmother asserted in an affidavit that Mother "has never taken care of [A.V.]," and claimed that Mother "is very unstable, impulsive and reckless," and "very emotional, volatile, and has a drinking problem." The trial judge signed a temporary restraining order on January 22, 2020, which excluded Mother from possession of or access to A.V. Mother began her new job in Seattle on January 31, 2020. Within weeks, lockdowns began related to the Covid-19 pandemic. This prevented Mother from travelling to Dallas to see A.V. Mother moved back to Dallas April 21, 2020, after her employer agreed to transfer Mother so she could be closer to A.V.
A bench trial was held on June 22, 2020. At that time, Mother was still employed by Mill Creek Residential as an assistant property manager at a residential property in the Lakewood area of Dallas. Mother initially lived at the Dallas property when she moved back to Dallas in April 2020. But by the time of trial, Mother and her fiancée had signed a one-year lease on a house in McKinney, Texas and moved in to the house. Mother testified that she decided to live in McKinney rather than stay in the Dallas apartment because McKinney was close to A.V. and she did not want A.V. to have to change schools to live with Mother. Mother further testified that her manager wanted to promote her to property manager, and Mother believes she has a future with that employer.
At trial, Grandparents told the trial court that they each believe it is in A.V.'s best interest for Grandparents to be her sole managing conservators and for Mother to pay them child support. Grandmother testified that she had two concerns about A.V. living with Mother. First, she did not want A.V. to live with Mother and her fiancée because the fiancée is "a stranger" to A.V. and Grandparents, and Mother had only known her fiancée since February 2020. Grandmother's second concern was that she did not know if Mother's job will last. Grandfather testified that he did not think Mother "is responsible enough" to have a child on a full-time basis. He based this assessment on prior incidents where Mother chose to go out with friends rather than visit A.V., said she did not want to be a mother, and spent time on her phone during visits with A.V. He also expressed concern that Mother's current romantic relationship would not last because her prior relationships intensified quickly and then ended within three to six months. Grandfather testified that two of Mother's prior relationships ended after the romantic partner physically assaulted Mother.
At the conclusion of the bench trial on Grandparents' SAPCR petition, the trial court took the matter under advisement. On July 1, 2020, the trial court issued a "Court's Memorandum" setting out its general rulings. Mother filed a motion for reconsideration, which the trial court denied on October 2, 2020. The trial court signed its Final Order in the SAPCR on October 9, 2020. The Final Order appoints Grandparents the sole managing conservators of A.V., and Mother a possessory conservator of A.V. and found those appointments to be in A.V.'s best interest. The court stated its finding that Mother "voluntarily relinquished actual care, control, and possession of the child" to Grandparents "for a period of one year or more, a potion [sic] of which was within 90 days preceding the date of filing" the SAPCR petition. The trial court ordered that Mother's visits with A.V. be supervised based on the court's finding "that credible evidence has been presented that there is a history or pattern of child neglect committed by" Mother. The trial court also ordered Mother to pay Grandparents child support, set out a possession schedule, and made other orders not at issue here.
Mother requested findings of fact and conclusions of law, which the trial court issued on November 17, 2020. The findings and conclusions relevant to the issues raised on appeal include the following:
Mother timely appealed the SAPCR order. On appeal, Mother contends the trial court abused its discretion by appointing Grandparents joint managing conservators and entering a possession schedule that deviates from the standard possession order. She maintains the evidence was insufficient to support the trial court's determination that Grandparents overcame the constitutional fit-parent...
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