# Fourth Court of Appeals **San Antonio, Texas** OPINION N o. 04

- 15

- 00326

- CV IN THE INTEREST OF A .D. and I.W., Children From the 407th Judicial District Court, Bexar County, Texas Trial Court No. 2013

- PA

- 01927 Honorable Martha B. Tanner, Judge Presiding Opinion by: Rebeca C. Martinez, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Ju stice Jason Pulliam, Justice Delivered and Filed: November 4, 2015 AFFIRMED Appellant M.M. appeals the trial court’s order in a suit affecting the parent
- child relationship, arguing that the trial court erred in appointing grandparents as managing conservators. We affirm the judgment of the trial court. B ACKGROUND On August 9, 2013, the Texas Department of Family and Protective Services filed its “Original Petition For Protection of a Child, For Conservatorship, and For Termination in Suit Affectin g the Parent

- Child Relationship and Order Setting Hearing” in which it sought to terminate the parent

- child relationship between appellant M.M. and her two children, A.D. and I.W. 1 The Department further requested the appointment of a relative or other su itable person as permanent

1 The Department’s petition also sought to terminate the parent

- child relationship between Danny W. and I.W.04

- 15

- 00326

- CV

- 2

- sole managi ng conservator of the children. Alternatively, the Department asked to be appointed sole managing conservator. Thereafter, the Department was appointed temporary managing conservator of the two children. On Septemb er 9, 2013, the trial court entered temporary orders authorizing the placement of A.D. with his maternal grandmother, Kelly S., and placing I.W. with his paternal grandmother, Maria N. On January 12, 2015, Danny W., the father of I.W., filed a “Counterpet ition in Suit Affecting the Parent

- Child Relationship” asking to be appointed the sole managing conservator of I.W. Permanency Plans filed on October 23, 2014 reflect that, in regards to A.D., the Department was seeking joint managing conservatorship with Kelly S. and mother M.M. (primary goal), and failing that, adoption by Kelly S. (concurrent goal). In regards to I.W., the Department sought family reunification with father Danny W. (primary goal), and failing that, adoption by Maria N. (concurrent goal ). The matter proceeded to trial in February 2015. At the bench trial, the Department persisted in its request that M.M.’s parental rights be terminated. Because Danny W. had completed his service plan and done “everything that he need[ed] to do in the best interest of his child,” the Department requested that he be appointed sole managing conservator of I.W. Kelly S. testified that she and her husband were willing to adopt A.D. Maria N. similarly testified that she wanted I.W. to remain in her home. The trial court did not terminate M.M.’s parental rights, but instead signed a “Final Order in Suit Affecting Parent

- Child Relationship” on May 11, 2015. The trial court found that the appointment of a parent as managing conservator would not be in the best interest of A.D. because the appointment would significantly impair the child’s physical health or emotional development, and thus appointed Kelly S. as sole permanent managing conservator of A.D. The trial court further appointed Danny W. and Maria N. as joint managing conservators of I.W. Finally, the trial04

- 15

- 00326

- CV

- 3

- court appointed M.M. as possessory conservator with visitation rights of both children. M.M.’s possession and access was ordered to be supervised from 9 a.m.

- 6 p.m. on the first, third, and f ifth Saturdays of the month in the absence of a mutual agreement by the parties. D ISCUSSION On appeal, M.M. argues that the trial court erred in appointing grandparents as managing conservators because they were not parties to the case and the record contains no pleading by any grandparent. She cites Landry v. Nauls , 831 S.W.2d 603 (Tex. App.

— Ho uston [14th Dist.] 1992, no writ), as support. In Landry , Father filed a petition seeking to declare paternity and name a managing conservator for his daughter, who had been living with her paternal grandmother since her birth. Id . at 604. Mother cross

- claimed seeking a declaration of paternity and a request to be named managing conservator. Id
. After hearing both sides, the trial court granted permanent
con servatorship to the minor child’s paternal grandmother
. Id . Mother appealed, arguing that the appointment of the grandmother, a non

- party , as permanent managing conserv ator was an abuse of discretion. Id . The court of appeals agreed, holding that “ a nonparent who has standing under the Family Code must bring or intervene in a custody suit and pre sent affirmative evidence sufficient to sa tisfy the burden of proof that ‘ the appointment [of a parent as managerial conservator] would significantly impair the child’ s physical health or emotional development. ’” Id . at 605

- 06 (citations omitted, emphasis in original ). M.M.’s reliance on Landry , however, is misplaced, because t he standing provisions of the Family Code are not applicable to cases instituted by the Department for the protection of the children. See In re C.S ., 264 S.W.3d 864, 869 (Tex. App.

— Waco 2008, no pet.) (holding trial court did not err in appointing non

- parents as joint managing conservators because they were properly identified as relative caregivers by the Department and appointed as joint managing conservators in the terminatio n proceedings instituted by the Department); see also In re Z.G. , No.04

- 15

- 00326

- CV

- 4

- 11

– 11

– 00078

– CV, 2012 WL 745090, at * 7 (Tex. App.

— Eastland Mar. 8 2012, no pet .) (mem. op.) (same)
. The case before us, as opposed to Landry , concerns proceedings instituted by the Depar tment. The Department had pleadings on file requesting that M.M.’s parental rights to A.D. and I.W. be terminated and that the children be permanently placed with a relative or other suitable person as the sole permanent managing conservator. A.D. had be en placed with his maternal grandmother, Kelly S., prior to trial. I.W. was placed with his paternal grandmother, Maria N., prior to trial. Both grandmothers were identified in the permanency plan as appropriate relative caregivers for A.D. and I.W., res pectively. Thus, we cannot agree that the grandparents were required to either be parties to the case or file pleadings in the case before the trial court could appoint them as managing conservators. See In re C.S ., 264 S.W.3d at 869; see also, e.g ., In re E.S.H. , No. 11

- 14

- 00328

- CV, 2015 WL 2353349, at *3 (Tex. App.

— Eastland May 14, 2015, no pet.) (mem. op.) (affirming appointment of grandfather as child’s sole managing conservator and parents as possessory conservators in suit initiated by the Departmen t). An examination of the relevant provisions of the Family Code further aids our decision. I n the event termination of the parent

- child relationship is not ordered by the trial court in a suit seeking termination, the trial court shall either deny the petition or “ render any order in the best interest of the child.” T EX . F AM . C ODE A NN . § 161.205 (West 2014). It is a rebuttable presumption that appointment of the parents as joint managing conservators is in the best interest of the child, unless the court finds that such an appoin tment would not be in the child’s best interest because the appointment would significantly impair the child’ s physical health or emotional development or finds that there is a history of family v iolence involving the parents
. See id
. § 153.131(a ), (b) (West 2014) . Here, the trial court made a finding that appointment of a parent as managing conservator would not be in the best interest of A.D. because the appointment would significantly04

- 15

- 00326

- CV

- 5

- impair the child’s physical health or emotional development
. 2 M.M. does not challenge that finding on appeal. Thus, the Family Code does not support M.M.’s assertion that the trial court erred in naming the grandparents as managing conservators. Finally, we look to a recent case relied on by the State in support of our decision. In In re R.A ., No. 10

- 14

- 00352

- CV, 2015 WL 364652 8 (Tex. App.

— Waco June 11, 2015, no pet.) (mem. op.), a similar challenge was made on appeal as in the instant case. The Department was appointed the temporary man aging conservator of R.A. and his four siblings after R.A. was severely burned and his mother and boyfriend failed to seek medical treatment for almost a day. Id
. at *1. R.A. and his four siblings were placed with the children’s maternal great

- aunt durin g the investigation by the Department. Id
. At the final hearing, the Department did not seek termination of the parent

child relationship but asked that the great

- aunt be named R.A.’ s sole managing conservator, R.A.’s father as a possessory conservator, and that the Department be dismissed. The tri al court granted the Department’ s relief as requested. Id . Father appealed, arguing that t he trial court erred by naming the great

- aunt sole managing conservator of R.A. because she had no affirmative pleadings on file and did not present any evidence. Id
. The Waco Court of Appeals disagreed with the Father, and affirmed the trial court’s order. The court based its determination, in part, on the following facts: (1) the Departm ent’ s pleadings asked, in relevant part, that the great

- aunt be named the managing conservator of the children in accordance with the Depar tment’s stated permanency plan; (2) t he Department sought to add the great

- aunt as a party prior to the final hearing ; however, the great

- aunt did not participate in the final hearing, although it appears from the record that she was pr esent at the final hearing; and (3) R.A. had been placed with the great

aunt by the Department during the pendency of the proceedings and the Department was seeking

2 A similar finding was not required with respect to I.W. because a parent, Danny W., was appointed as his managing conservator.04

- 15

- 00326

- CV

- 6

- its permanency goal of placement with the great

- aunt . Id
. at *2. Ultimately, the Waco Court held

“ that the trial court had statutory authority under the applicable family code provisions, when read as a consistent and logical whole, to find that [Father] was not at the time of trial an appropriate managing conservator and also to name [the great

- aunt] as R.A.’ s managing conservator without the necessity of [great

- aunt] presenting evidence or otherw ise participating in the trial .” Id
. at *2 (citing In re Z.G. , 2012 WL 745090 , at *9

- 10). Similar facts are present in the case before us. As we discussed earlier: (1) t he Department had pleadings on file requesting that M.M.’s parental rights to A.D. and I.W. be terminated and that the children be permanently placed with a relative or other suitable person as the sole permanent managing conservator ; (2) both A.D. and I.W. had been placed with their grandmother s prior to trial; and (3) b oth grandmothers were identified in the per manency plan as appropriate relative caregivers for A.D. and I.W., respectivel y. Accordingly, we hold the trial court did not abuse its discretion in appointing Kelly S
. as sole managing conservator of A.D. or in appointing Danny W. and Maria N. as joint managing conservators of I.W. See In re J.A.J. , 243 S.W.3d 611, 616 (Tex. 2007) ( reviewing conservatorship determinatio n for abuse of discretion). Having overruled M.M.’s sole issue on appeal, we affirm the judgment of the trial court. Rebeca C. Martinez , Justice