in the Interest of A.K.B., a Child
11-16-00319-CV
| Tex. App. | Jun 15, 2017Background
- DFPS removed three-year-old A.K.B. from mother S.R.S.’s custody over concerns about the mother’s drug use and significant mental-health history (multiple suicide attempts and hospitalizations); child initially placed with foster family, then with father (Appellee).
- DFPS recommended naming both parents joint managing conservators, with father as the parent designating primary residence, and recommended the standard possession order (SPO).
- At the final hearing the trial court announced joint managing conservatorship and initially said mother would receive "standard visitation," but then limited her to once-a-month possession for the first year (parents live ~300 miles apart) and thereafter let her elect between every-other-weekend or once-a-month.
- Evidence included the child’s young age, special needs, difficulty with long-distance travel and stressful exchanges, past problematic exchanges between the parents, and mother’s very recent change in living arrangement raising concerns about her ability to care for the child immediately.
- Mother did not request written findings under Fam. Code § 153.258; appellate review therefore assumes the trial court made all findings necessary to support its judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court abused discretion by temporarily deviating from the standard possession order (limiting mother to once-a-month visits for one year) | S.R.S.: No evidence justified deviation; SPO presumptively provides reasonable minimum possession and is in child’s best interest | DFPS/Appellee: Facts (child’s age, special needs, travel burden, prior exchange problems, mother’s unstable/new living situation) justified deviation for child’s best interest | Court: No abuse of discretion; evidence supports temporary deviation to protect child’s best interest |
Key Cases Cited
- In re Marriage of Swim, 291 S.W.3d 500 (Tex. App.—Amarillo 2009) (trial court has broad discretion in custody/possession matters; review for abuse of discretion)
- Arredondo v. Betancourt, 383 S.W.3d 730 (Tex. App.—Houston [14th Dist.] 2012) (same standard of review for custody/possession decisions)
- Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (abuse of discretion occurs when a court acts arbitrarily or without guiding principles; appellate court may imply necessary findings)
- In re N.P.M., 509 S.W.3d 560 (Tex. App.—El Paso 2016) (SPO creates rebuttable presumption of reasonable minimum possession; trial court may deviate if evidence rebuts presumption)
- Niskar v. Niskar, 136 S.W.3d 749 (Tex. App.—Dallas 2004) (when findings are not requested, appellate review assumes the trial court made findings necessary to support its judgment)