1 

In The

Court of Appeals 

Ninth District of Texas at Beaumont

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NO. 09-22-00026-CV

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IN THE INTEREST OF Z.C.R.M.

__________________________________________________________________

On Appeal from the 317th District Court

Jefferson County, Texas

Trial Cause No. C-234,693

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MEMORANDUM OPINION

In this appeal from an order in a suit affecting the parent-child 

relationship, Z.C.R.M.’s father, Mark, complains the trial court abused 

its discretion by restricting Mark’s possessory rights “more severely than 

necessary to protect the child’s best interest.” In a second issue, Mark 

argues the trial court erred by restricting his “possession and access to 
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the child by reasons that are not supported by sufficient evidence on the 

record.”1 Finding no error, we will affirm. 

Background

In March 2019, a then ten-month-old Z.C.R.M., Zeke, was 

hospitalized and treated for a broken jaw that he suffered while in his 

mother’s care. In April, the Department of Family and Protective 

Services filed a “Petition for Protection of a Child, For Conservatorship, 

and for Termination in Suit Affecting the Parent-Child Relationship,”

alleging Zeke faced “an immediate danger to [his] physical health or 

safety,” or had “been the victim . . . of neglect or . . . abuse.” In paragraph 

thirteen of the form petition, the Department asked the trial court to 

name the Department as Zeke’s permanent managing conservator if Zeke 

could not be reunified with one of his parents, or if he could not be 

permanently placed with a relative or some other suitable person. 

The same day the Department filed its petition, the trial court 

signed an order authorizing the Departmentto take Zeke into its custody. 

In the order, the trial court named the Department as Zeke’s temporary 

1To protect the identity of the minor, we use pseudonyms to refer to 

the minor, to members of his family, and to the foster parents. See Tex. 

R. App. P. 9.8(b)(2).
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managing conservator.The affidavit supporting the removal, signed by a 

caseworker employed by the Department, reflects the hospital where 

Zeke was examined determined that Zeke had a fractured jaw, suffered 

fractures to two of his ribs, which had already healed, and had fractures 

that were healing in both of his shins. During the hearing on the 

emergency petition, the Department’s attorney told the trial court the 

Department had no reason to suspect that Mark had any involvement in 

causing the injuries Zeke suffered that the caseworker listed in the 

affidavit the Department filed to support its emergency petition seeking 

temporary custody of Zeke.

Later that month, the trial court conducted a full adversary 

hearing. During the hearing, Zeke’s father, Mark, testified he had only 

seen Zeke once, just after Christmas in 2018.2 Following the hearing, the 

trial court signed an order requiring Zeke’s mother and Mark to follow 

family service plans.3 The following week, Mark agreed to the 

2In the trial, however, we note that Mark testified he had seen Zeke 

three times before the Department removed him from his mother’s home.

3See Tex. Fam. Code Ann. § 263.106 (Court Implementation of 

Service Plan). The order reflects the trial court indicated it would 

consider placing Zeke with Mark in his home following the results of an 

inspection by the Department of Mark’s home.
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Department’s proposal that he have supervised visitation with Zeke, 

rules which gave him the right to see Zeke one hour a week at a

Department office under the supervision of a member of the 

Department’s staff.

After signing the agreement, Mark began working on the various 

requirements of his family service plan. In March 2020, Governor Abbott 

declared a state of disaster due to the imminent threat of the Covid-19 

pandemic, which delayed the trial court’s ability to dispose of the case 

within one year of the date the Department filed suit.And in March 2020, 

Zeke’s foster parents, Tina and Ray, filed a Petition in Intervention, 

alleging Mark’s parent-child relationship with Zeke should be terminated 

on four grounds: (1) he left the child alone without support; (2) conduct 

endangerment; (3) condition endangerment; (4) failed to support Zeke

after contumaciously refusing to submit to a reasonable and lawful order 

of a court under Subchapter D, Chapter 261.4

In November 2021—on the morning the case was to be heard by the 

jury—Mark testified and asked the court to enter the settlement 

agreement he reached with all parties naming him as Zeke’s possessory 

4See Tex. Fam. Code Ann. § 161.001(b)(1)(C), (D),(E), and (I).
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conservator, explaining that he understood that by going forward with 

the trial the jury might decide to terminate his parental rights to Zeke.

Mark also acknowledged during the settlement hearing that he 

understood he remained obligated to support Zeke as Zeke’s possessory 

conservator. For their part, Tina and Ray testified they agreed to the 

settlement’s terms, which named them as Zeke’s permanent managing 

conservators with Mark as Zeke’s possessory conservator. All parties 

acknowledged they understood the trial court would conduct a bench trial 

to resolve the remaining issues that were left on questions about Mark’s

visitation. After the parties announced the agreement, the witnesses 

explained they understood and agreed to the settlement’s terms, the trial 

court announced the court would approve the agreement, appointed Tina 

and Ray as Zeke’s sole managing conservators, and appointed Mark as 

Zeke’s possessory conservator. 

After the trial court dismissed the jury, the trial court conducted an 

evidentiary hearing to resolve the remaining issues, which concerned the 

conditions (if any) under which the trial court would require Mark to 

exercise his possessory rights. The issues the parties tried to the court 

focused on whether Mark should have unsupervised visitation with Zeke. 
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Four witnesses testified in the hearing and expressed the opinion 

that Mark’s visits should remain supervised, explaining that Zeke and 

Mark did not yet have a bond. These witnesses were (1) the Child 

Protective Services Supervisor in charge of Zeke’s case, (2) the licensed 

professional counselor who observed Zeke and Mark during ten of their 

supervised visits, (3) Tina, and (4) Ray. Mark was the only witness who 

testified that he and Zeke have a bond. When Mark’s attorney asked 

Mark “[d]o you feel like you have a bond with your child[,] Mark 

responded: “Yes, I do.” 

Two months after the hearing, the trial court signed a final order, 

which addresses Mark’s rights. In the final order, the trial court 

terminated mother’s parent-child relationship with Zeke, named Tina 

and Ray as Zeke’s sole managing conservators, and appointed Mark as 

Zeke’s possessory conservator. In the brief that Mark filed to support his 

appeal, he argues in two issues that the trial court abused its discretion 

in ordering supervised visitation. The trial court, when explaining why it 

decided to require supervised visitation, stated in its order that

. . . credible evidence has been presented that the 

psychological situation, cognitive weakness, lack of parenting 

ability, lack of relationship with the child, and lack of 
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adequate bond between [Mark] and the child necessitates that 

his periods of possession be restricted.5

After the trial court signed the order, Mark asked the trial court to 

provide the parties with written findings. When the trial court did so, the 

trial court noted that the licensed professional counselor who testified in 

the trial observed Mark and Zeke during their sessions and expressed 

her opinion that they lacked a bond. The licensed professional counselor 

also observed that Mark had “been absent from Zeke’s life” before the 

Department took Zeke into custody. Based on the testimony of the 

witnesses and evidence presented to the court in the proceedings, the 

trial court found that Mark “failed to bond with the child during the 

pendency of the case.” 

On appeal, Mark argues the supervised possession order is more 

restrictive than necessary to protect Zeke’s best interest and the 

restrictions on his rights of possession and access to Zeke lack sufficient 

support in the record.

5Under the order, Mark may see Zeke in supervised visits every 

other Sunday and every other Thursday for two hours, and on additional 

days at times “mutually agreed to in advance by the parties.” 
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Standard of Review

“In family law cases, the traditional sufficiency standard of review 

overlaps with the abuse of discretion standard; thus, legal and factual 

sufficiency are not independent grounds of error but are relevant factors 

in assessing whether the trial court had sufficient evidence to exercise its 

discretion.”6 And since trial courts have wide latitude in deciding issues 

that serves the child’s best interest when it involves matters like custody, 

control, possession, and visitation, the decision the trial court made is 

reviewed on appeal for abuse of discretion.7 A trial court abuses its 

discretion when it acts arbitrarily or without reference to any guiding 

rules or principles.8

In reviewing the trial court’s ruling, we note the Legislature placed 

the focus on the child’s best interest in resolving suits filed by parties 

that affect the parent-child relationship.9 In evaluating the trial court’s 

6In re E.R.A., No. 09-20-00042-CV, 2021 Tex. App. LEXIS 2026, at 

*11 (Tex. App.—Beaumont Mar. 18, 2021, no pet.) (mem. op.).

7See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); In the Interest of 

T.G., No. 09-16-00250-CV, 2016 Tex. App. LEXIS 12996, at *13 (Tex. 

App.—Beaumont Dec. 8, 2016, no pet.) (mem. op.). 

8Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 

(Tex. 1985); In re E.R.A., 2021 Tex. App. LEXIS 2026, at *11.

9Tex. Fam. Code Ann. § 153.002.
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best-interest finding, we look to the non-exclusive list of factors the Texas 

Supreme Court identified in Holley v. Adams.10 We also note the terms 

of an order restricting a parent’s right to possession or access “may not 

exceed those that are required to protect the best interest of the child.”11

Analysis

The question we must decide to resolve Mark’s issues is whether 

the trial court abused its discretion by finding it was in Zeke’s best 

interest for his visits to be supervised given that the trial court made its 

decision when Zeke was not yet three-years-old when the order was 

signed. 

10In Holley, the Texas Supreme Court used the following nonexclusive factors to review a court’s best-interest finding:

• the child’s desires;

• the child’s emotional and physical needs, now and in the future;

• the emotional and physical danger to the child, now and in the

future;

• the parenting abilities of the parties seeking custody;

• the programs available to assist the party seeking custody;

• the plans for the child by the parties seeking custody;

• the stability of the home or the proposed placement;

• the parent’s acts or omissions that reveal the existing parentchild relationship is improper; and

• any excuse for the parent’s acts or omission.

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

11Tex. Fam. Code. Ann. § 153.193.
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During the hearing, the trial court heard testimony from several 

witnesses who said that Zeke had been abused by a man when Zeke lived 

with Zeke’s mother. The CPS supervisor assigned to Zeke’s case testified 

in the hearing that she noticed Zeke cried when Mark saw Zeke when 

Mark he was carrying out the requirements of his court-ordered family 

service plan. Zeke was apparently uncomfortable with others, including 

Mark, because according to the CPS supervisor Zeke “didn’t feel 

comfortable with . . . people that he didn’t have a relationship with. [Zeke] 

just had security issues and didn’t feel comfortable with various people,

which included CPS at that time.” According to the CPS supervisor, there 

was not a bond established between Mark and Zeke, and she thought it 

best that Mark’s visits be supervised until Zeke becomes comfortable 

with Mark. 

Tina and Ray testified they began taking care of Zeke when he was 

ten-months old. They explained that he still had signs of injury from 

being abused when he was placed in their home. Tina testified: “I just 

don’t understand why [Zeke] has not bonded with [Mark], and it could be. 

I just don’t understand there’s no bond. We have—he bonds with 

caseworkers. He bonded with his lawyer. It’s just no bonding.” Tina 
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testified she and Ray worked with CPS so that Zeke could bond with 

Mark; however, she described Mark’s response to her efforts as 

“lackadaisical” explaining that Mark did not seem excited about spending 

more time with Zeke. And when Mark came for an additional visit on one 

occasion on Zeke’s first birthday, she noticed that Mark failed to focus on 

Zeke when he was there. According to Tina, when Zeke did visit with 

Mark, Zeke had bad dreams at night when Mark left, and on occasion 

Zeke became angry when he was in school and fought with other children. 

Mark, however, testified that he did have a bond with Zeke. Yet 

Mark agreed that Zeke also had bonded with Tina and Ray in a healthy 

way. Mark also expressed gratitude for the fact that Tina and Ray had 

been willing to parent his child. 

The record contains conflicting evidence on the question of whether 

Mark’s visits with Zeke should be supervised. Under Texas law, the trial 

court was obligated to “render an order appropriate under the 

circumstances for possession of a child less than three years of age” given 

Zeke’s age when the hearing occurred.12 And as the court of continuing 

12See Tex. Fam. Code Ann. § 153.253 (Standard Possession Order 

Inappropriate or Unworkable). 
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exclusive jurisdiction, the trial court could modify the order on a future 

date, which Mark acknowledged in the settlement hearing before 

approving the settlement Mark made on the issue of possession (but not 

access).13

The five witnesses who testified in the hearing addressed many of 

the factors described in Holley, focusing on Zeke’s emotional needs, the 

parenting abilities of Tina, Ray, and Mark, the stability of Zeke’s 

placement, the role Mark played in the failure to bond, and the excuse 

Mark offered to explain any alleged deficiencies in his bond with Zeke.14

The trial court’s conclusion requiring Mark’s visits with Zeke to be 

supervised is reasonable given Zeke’s age, his past history, and the 

evidence addressing the remaining Holley factors the evidence addressed 

during the hearing.15

13See Tex. Fam. Code Ann. § 161.001. During the settlement 

hearing, Mark’s attorney asked Mark: “Q: Do you understand that with 

you still in this child’s life at future dates you could attempt to modify 

this court order with [Tina and Ray]?” Mark answered: “Yes.” 

14Holley, 544 S.W.2d at 371-72.

15See In re E.R.A., 2021 Tex. App. LEXIS 2026, at *11.
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Conclusion

Since the access order the trial court rendered is appropriate under 

the circumstances for a child less than three-years-of-age, we overrule 

Mark’s issues. The trial court’s final order is

AFFIRMED.

_________________________

HOLLIS HORTON

Justice

Submitted on June 21, 2022

Opinion Delivered July 14, 2022

Before Golemon, C.J., Horton and Johnson, JJ.