## In the Court of Appeals Second Appellate District of T exas at Fort Wor th

_____ ______________________ No. 02

- 21

- 00119

- CV

___________________________

On Appeal from the 322nd District Court Tarrant County, Texas Trial Court No. 322

- 679084

- 20
Before Sudderth, C.J.; Bassel and Walker, JJ. Memorandum Opinion by Justice Bassel 

### I N THE 

### I NTEREST OF 

### I.G., A 

### C HILD2 MEMORANDUM OPINION
Fath er appeals f rom an order naming the Depart ment of F amily an d Protective
Se r vices as I.G. ’ s permanent managing conservator. The Department took posse ssion
of ten

- year

- old I.G. from her mother after Mother had aband oned the child at a s tore for a couple of hours and was then jaile d for child en dange rm e n t
. Upon the Department ’ s p etit ion seeking to be named I.G. ’ s permanent managing conservator , among other things, Father entered into an agreement wit h the Departmen t , as well as
I .G. ’ s attorney and guardian ad litem , unde r whi ch Fathe r ac quies ced to the Depa rtment ’ s being named I.G. ’ s perm anent managing cons ervator upon four
conditions. Bu t the trial court expressly declined to order at lea st two of the
conditions in accordance with t he par ties ’ agreement

–– and , a ccording to Father,
omitted the othe r two from its final or der , prom pting Fath er ’ s appeal

. 1 We affirm the
trial cou rt ’ s order

. Parties ’ Status at Trial
At trial, a n OCOK 2 permanency spe c ialist working with the family testified that
Mother had m ental

- health issues and was not ready to have possession of I.G. un der a

1 Mother has not a ppea led

.
2 OCOK is a n acro nym for O ur Commun ity Our Kids, a private provider of commun ity

- based care that contracts with the Department to provide “ fos ter care case mana gement, kinship, a nd famil y r eunification services ” in parts of the State. See Tex. Dep ’ t of Family & P r ote ctive Se rvs. , h ttps://c ontent.go vdelivery

. com/accounts/TXDFPS/bull etins/27e68be (last visited Aug. 2 , 2021) ; see also Tex. Fam. Code Ann. § § 264.151

– .170 (desc ribing and pro vidi ng requirements for3 monitored return because Mother was not me dication com pl ian t and had not seen
I.G

. in four months. Although Father had not seen I.G. in person in over seven
yea rs, and I.G. could n ot remember ever seeing him in person, he claimed that
Moth er had purposefully kept the child away from him

. F a the r had been late in starting h is serv ices , but he h ad b egun counselin g in the two weeks before trial and
had “ b een visiting ” v i rtually 3 wi th I.G

. Father was li ving with his brother out of state, and the Department had not y et comp leted a n in

- person st udy on the ho me or a background check on the brother. In addition, Father had not taken any parenti ng classes , and the permanency spe cialist testified that Fat her w ould need to do so before the Department would consider return ing the child to him

. T he Department ’ s goal

was to have I.G. “ be able to go li v e with her fath e r at some point in the fut ure or [for]
her mother [to ] get stab le and [I.G. ] l ive wit h her. ” Rule 11 Agreement and Final Order During th e permanency spe c ial is t ’ s t estimony about Father, t he tr ial judge
asked , “ [ H ]ave y ’ a ll not discussed resolving and settling t his? ” Father ’ s counse l replied , “ [ W ] e have, Judge, as far as [Father] is concerned. [ The Department ’ s

coun s e l ] and I h ave discussed he ’ s will ing to agree to the PMC order. He just asked
for four conditions to be includ ed in that o rder, and [ the Department ’ s cou nsel] has Department overs ight of private commun ity

- b ased

- care s yste m for th e S t ate of Texa s)

.
3 OCOK facilitated virtual visits with Father bec ause I.G. “ is not in close proximit y ” to his out

- of

- state reside nce.4 said that they w ould agree to that. ” T he permanency spe cialist answered “ Yes ” when
Fath er ’ s counsel asked if she a gree d to (1) continue family counseling 4 be tween Fat her
and I.G

. , (2) “ consul t wit h ” Father about I.G. ’ s medical care , (3) “ consult with ”
Father about I. G. ’ s educational needs , and ( 4

) “ continu e to set up parent

– child visits

on at least a weekly basis ” bet ween I.G. and Fath e r . A fter the Department reste d , F ather ’ s counsel decline d to call any wit nesse s and told the trial cou r t , “ We are in agreement with the PMC order and just ask for
those

-- those four orders that I had mentioned before so we rest. ” I.G. ’ s ad l item
told t he trial court that I.G. wanted “ t o stay in foster c are until she know s . . . [F] ather
better and knows that

-- trust [ s] tha t he will take care of her and knows what she
needs. ” But t h e ad litem also asked the trial court to grant “ the specif ic items that [Fa th er ’ s counsel] has brough t forth on [Father ’ s] behalf that we ’ ve agreed to already as
counsel in the b est i nterest of t he child

. ” [Emp hasis added.] The Depart ment ’ s counsel told the trial court, “ [W ]e do agree to ” the agreeme nt as “ rec ite[d] ” by
Father ’ s counsel.
When t he trial court allowed Father ’ s counsel to restate the agreement , sh e asked for the court to or d er that OCOK continue to provide family counseli ng, that

“ parent

– child visits cont i nue at le ast weekly, ” and that Father “ be consulted prior to
any medical de cisions with the e xception of emergency trea tm ent. Then consultat ion

4 T h e permanency sp ec ia list believed th a t I.G. had a better chance of building a posit ive rel ationship with Father if the family t herapy were to co ntinue

.5 may occur within 2 4 hour s. And we ask for an order that [Father] be consult ed prior to any education decisions

. ” The trial court a sked, “ Wha t does that mean,

‘ consulted ’ ? ” C ounsel responded, “ Just to have the discussion of

-- about educatio nal
decisions such as in

- perso n learning versus virtual learning. More just so that he
k n ows what ’ s goi ng on with h er education. ”
Ultimate ly, the trial court stated t hat it wou ld not order t he Departmen t to

“ consult ” with Father before maki ng educ ational decisions for I.G. or be fore consenting to elective medical treatments fo r her. T he tria l court also refused to
expr essly order weekl y parental possession and ac cess by Fa ther; however, the tri al

court stated on the record t hat althou gh in it ial visitation would be vir tu al , “ the Department will also set up in

- p erson visits for . . . [F] ather s o he can get acclima ted
and accomplish what t he

-- services he needs

. . . . I ’ ll lea ve that up to the Department

. ”
The final order nam ed the Department as I.G. ’ s perman ent managing

conservator an d named both parents possessory conservators with possession of I. G.

“ at times mu tually agreed to in advance by the parties ” o r, without such agreement, supervised visitati on only upon 48

- hours a dva nce notice to the Department an d on conditions and terms approved by the Department

. It did not expressly include any of the provisions of th e R u le 11 agreement.6 Analys is
Fa t her c ontends in a single issue that the trial court abused its dis cret ion by not incorp or ating thr ee parts of the Rule 11 agree ment into its final order : weekly visits and prior consul t ation with Fat h er be f ore making educat ional a nd medi cal decisions

. 5
The D epartm ent c oncedes that the parties agreed to a v ali d R ul e 11 agreement for weekly vi sits between Father and I.G. but asserts (1) that b ecause the agreement is enforceable ind ependentl y from th e f i nal order , th ere is no need to reform the order
and also (2 ) that the final order encompasses the weekly

- vis it agre ement because it provides for visits as agreed to in advance by the parti es . A s to consul tation about
medical and e ducational matter s, t he D epartment co ntends that the trial cour t was not obligated t o follow that part of the a gre emen t because what the parties mea nt by

“ consult ” is too vague or, alternatively , that th e trial court ’ s inco rporation into th e final order of the statutory du ty to i n form under Fa mily Code Section 153.076 (a) is
sufficien t to meet this r e quireme n t
. Tex . F am. Code Ann. § 153.076(a). Appl i cable Law and Standar d of Review Rule 11, which provides that a n agreement between attorneys o r parties will be
enforced if “it b e m a de in open court and entered of reco rd , ” T ex . R . C iv . P. 11 , ap plies in co nser vatorship cases , In re A.R. , No

. 06

- 20

- 00016

- CV, 2020 WL 4229328, at *1 (Tex. App.

— Texark ana July 24, 2020, no pet.) (mem. op.). Gen erally, a trial

5 Father does not challenge the order ’ s omiss ion of a counsel ing re quir ement , instead as serting that h e would challe nge that omission in a motion for judgment nunc pro tunc filed in t he trial cou rt
.7 court ha s a ministerial duty to enforc e a valid Rule 11 agreement. In re S.R. S. , No. 12

- 20

- 00130

- CV, 20 2 0 W L 4463122, at *3 (Tex. App.

— Tyle r July 15, 2020, no pet.) (mem . op.) ; Scott

– Richter v. Taffarello , 186 S.W.3d 182, 189 (Tex. App.

–– Fort Wort h 2006, pet. deni ed)

. But under t he F amily Code , a n agreeme nt concerning
conservatorsh ip and possession of a ch ild must be enforced by the trial cou rt o nly if the court finds that the agreement is in the child ’ s best interest

. See Tex. Fam. Code
Ann. § 153 .007(a)

– (b); In r e D.R.G. , No. 14

- 16

- 00023

- CV, 2017 WL 2960026, at *3 (Tex. App.

— Houst on [14th Dist.] July 11, 201 7, no pet.) (mem. op.) ; see also T ex. Fam. Code Ann. § 153.002 (“The best interest of the child shall always be the primary
consideration of t he court in deter mining the issues o f conservatorship and possession of and access to the child.”) ; cf. Gar cia

– Uda ll v. Udall , 141 S.W.3d 323, 33 0

– 3 2 (Tex. App.

–– Dallas 2004, no pet.) ( distinguishing agreed parenting plan on

conserva torship and possession from mediated set tlement agreement t hat meets

r equirements of Family Code Section 153.0071 (d) )

. W e review a tr ial court ’ s best

- int erest finding in c ons ervatorsh ip cases for an
abuse of discretion , with reference to the Holley factors. See C.H. v. S.L. , No. 02

- 16

- 00386

- CV, 2018 WL 4925318, a t *8

– 9 (Tex. App.

— Fort Worth Oct. 11, 2018, no pet.) (mem. op.) ; see al so Holl ey v. Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976). These

non exclusi ve factors include (1) the c hild ’ s desires , (2) the child ’ s emot ional and physical need s now and in the future , (3) the emotional and physical danger to the
child now and in the futur e, (4) the parental abil ities of the indivi duals seeking8 custody, (5) the programs available to assist these in dividuals to promot e the c hild ’ s bes t interest , ( 6) the plans for the ch il d by these individuals, ( 7 ) the stability of the
home or proposed pla ce men t , ( 8 ) the acts or omissions of t he pare nt that may indicate that the existing parent

– child relationship is not a proper one, and ( 9 ) an y excuse for the p arent ’ s acts or omissions

. Holley , 544 S.W.2d at 371

– 72. Under this standard, legal and factual s uff icie ncy challenges 6 are not indepen dent gr ounds of
error but factors used to determine whether the trial court abused its discretion. In re
S.M.A. , No. 11

- 19

- 00265

- CV, 2020 WL 508 26 7, at *1 (Tex. App.

— Eastland J an. 31, 2020, no pet.) (mem. op.).
T he ev ide nc e here does not a ddress all t he Ho lley fa ctors, but it does e ncompass some of them. Although Father does not expre s sl y challenge the trial court ’ s implied
f inding that th e nonin co rp orated parts of the agreement are not in I.G. ’ s best inte rest , such a ch alle nge is a subsidi ary question fair ly incl uded in his issue. See Tex. R. App. P. 38.1(f) ; see also Tex. Fam. Code Ann. § 26 3.404(a) (providing that trial court may appoint the D ep artment as a permanent managing conservator without terminating a
paren t ’ s rig hts if it determines that “ appointmen t of a parent as managing conservator would not be in the best interest of the child because the appointment would significantly impair the c hild ’ s physical health or emotional development ” and that it

6 Whe n a parent ’ s righ ts have not been t erminated, the usual civ il legal and f

actual sufficien cy standards, r ather than the cl ear

- and

- conv inci n g standards
a ppli cable to a termination decision, apply. See In r e B.O. , No. 02

- 16

- 00485

- CV, 2017 WL 2590571, at *23 & n. 26 (Tex. App.

— Fo rt Worth June 1 5, 2017, no pet.) (mem. op.).9 is not in the chi ld ’ s best interest t o appoint a relat ive managing conservator), § 26 3.404 (b) ( providing that trial court s hall con sider child ’ s needs and
desire s, among other th ings, in making t his determination )

. Best

- interest Evidence According to the ad litem, I .G. was very active in her fos ter ho me and doing
well there; s he was excited to be atte nding in

- person school again

. I.G. told the ad
litem that she was not ready to go with Father a nd di d not really know him

. I.G

. had
said that “ it ’ s been a pr ett y ro cky start trying to commun icate. ” She did not understand the concerns that Fath e r had brought up in counseling; I .G. did not go
into detail “ but explained that it was some type of confl ic t between the issue of something related to the p are ntin g issues. ” Father had admitte d to the a d litem that
he was not ready for I.G. to come live with him until “ he gets a better handle on what
she needs. ” The permanency spe cialist t estified that I.G. ha s asthma but that it was “ under
control ” i n fo ster care. I.G. also ha s seve re alle r gies and ta kes sev eral medications every day, including ADH D medication. I .G. was in counseling and behavioral therapy and had been experiencing some depression symptoms b ecause o f t he

s eparation from Mother

. I.G. to ld the p ermanency s pe cialist that she did not feel like she knew Fath er and “ expressed a lack of trust in ” him “ because his story [had] changed to last seeing
her when . . . she was 3 ver sus 3 months

. ” I.G. h ad also reported that Father “ was10 ca ll ing he r a liar an d not trusting in her due to a . . . situation rega rding [I.G. ’ s] schoolwork and grades. ”
Possession The parties agreed to “ continue ” visits , which had been vi rtual

. At t ria l, t he judge explained the ba sis for his ruling on v is itatio n as follow s: I ’ m going to allow [Father ] to have access by virtual access as

. . . discussed.

. . . . Now as guidance on the ruling,

. . . I would like to see

-- to have him progressively mo ve forw ard. Then he should ha ve mor e than just virtual vi sits. He needs to start visiting w ith the

-- the child, and

-- at least under supervised visitation so that the child is used to seeing him and to talk to the child. But I ’ ll leave it open like th at. The trial judge asked the D epartment ’ s at to rney i f she could draft an order based on

“ that global

- type ruling. ”
The part of the order regarding posse ssion states, “ IT IS ORDERED that the conservators shall have possession of th e c hild at times mutually agreed to in advance by the pa rt ie s an d, in the abs ence of mutual agreement, as specified in Attachment A to this order, which is incorporated herein as i f set out verbatim in this paragraph. ”
Attach ment A provides for “ sup e rvi sed visitation with the chi ld, u pon the terms and
condi t i o ns ag reed to in a dvance by the managi ng conse rvator, provided that the managing conservator or othe r placement shall have 48 hours advance notice of11 intent to exer cise the visitation. The manag ing cons ervator or designee shall supervise
the visitation. ”
I t ap pears that , rat her than attempting to limit Fathe r ’ s possession to weekly virtual visits only, the trial court wa nted the order ’ s language to allow for eventual in

person visits as agre ed to by the Departmen t once Father and I.G. had est ab lis hed a bo nd and it was appr o pri ate and convenient to do so. B ecause the Department had already agreed to weekly virtual visits, the order encompasses that a greement by allowing visits “ at tim es m utua lly agreed to in advance by the parties. ” Moreover ,

e ve n if the or der co uld not properly be construed as incorporating the part ies ’
agreem ent, the tri al court could have determined that it was in I.G. ’ s be st interest to leave the timing of visits f lex i ble and by c ontempo raneous agreemen t so as to facilitate the Dep artm en t ’ s and Fat her ’ s working together to get to the point at which
Father could have in

- person supervised visits with I.G. Cf. Tex. Fam. Code Ann. § 263.107 ( c) ( providing that in deter mini ng p roper visitation when Department is
child ’ s temporary m anaging co ns ervator, Dep artment must consider (1) child ’ s age, safety, and best inte rest ; (2 ) the parents ’ desires regarding visitation ; (3) t he parents ’
and child ’ s location ; and (4) the Depar tmen t ’ s resources pertinent to supervision and transportation ).
Theref ore , we conclude that there is no need to reform the trial court ’ s order
with re gard to visitation.12 Consultation Regarding the consultat ion part of the agre ement , the trial court explain ed,

“ [Fa ther] needs to be consulted a bout things that occur. Ho wever, I ’ m g oing to leav e it with the Department to make decisions concerning the education and

-- and decisions concerning elective surgery. T hat ’ s still with the Department. ”
T h e De part ment ’ s default right to make such decisions is co dified in Fami ly
Code Sectio n 1 53.371 , which provides t hat [u] nless limited by court order or other provisions of this chapter,

. . . the Department [when] appointed as a managing conservator

. . . has

. . . (4) t he right to consent for the child to medical, psy chiatr ic, psychologica l , dental, and surgical treatment and to have access to the child ’ s medical records;

. . . [ and ] (10) the right . . . to make deci sions regarding the child ’ s education

. Id. § 153 .371 (4), (10). Additionally, each conservator of a child must i nform the
oth er s “ in a timely manner ” of significant information concerning the child ’ s health, education, and welfare

. Id. § 15 3.076(a). The Department contend s that th e final ord er com plies with th e agreed

- to consultation con dition s bec ause i t or ders the part ies to com pl y with Fam ily Code Section 153.076(a). But that section does not define “ timely manner , ” nor does it expressly require advance notice. See id

. ; Mic hel s v. Zeifman , No. 03

- 08

- 00287

- CV, 2009 WL 349167, at *5 (Te x. App

. — Austin Feb. 12, 2009, pet. denie d) (mem. op.). T hus,
the tria l cour t ’ s ordering the parties to comply with Section 153.076(a) does not necessarily comply with the parties ’ agree ment con tem plat ing prior notice to Father

.13 Regardless, the trial court di d no t abuse its discr etion by implied ly determining that requiring the Department to consult with Father in advanc e before making

me dical and educational decision s for I.G. was not in I.G. ’ s bes t i nterest. Father was
not familiar with I.G. ’ s particular n e eds, ha d not seen her in person for a t l e ast seven years, and was just starting to get to know her. I.G. was doing well in her foster home while taking daily medications and needing manageme nt of severe allergies and
ADHD. Moreover, I.G. was struggling in the f irst coup le of we eks in counse lin g with Father and at least perceived that he had called her a liar and that he had been
untruth ful to her ; this is evidence that Fat her was not yet abl e t o respond to I .G. ’ s

ment al

- health and emotional needs that were being addressed in her individual

c oun se ling

. Thus , the trial court could have deter mined that altho ugh Father was
entitled to the mandated statutory information, requiring the Dep artment to run all
decisions by him in advance w ould not promote I.G. ’ s be s t interest.
We therefor e conclude tha t t here is no need to reform the final order to
incl ude the agreement to consult in advance on medical and educational decision s for
I.G

.14 Con cl usion
H avi ng det e r mined that the trial court did not have a ministerial du ty to include the compl ained

- of agr eed m atters in its final o rder , we overrule Father ’ s sole issue,
and we af firm the trial court ’ s order nam ing the Department a s I.G. ’ s sole managi ng

conse rva tor
. /s/ Dabney Bassel Dabney Bassel Justice
Delivered: August 12, 2021