### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00328
- CV

Dalith A. Regost , Appellant

v. Julien Regost , Appellee

FROM THE 250TH DISTRICT COURT OF TRAVIS COUNTY NO. D-1- FM -19-006487, THE HONORABLE AMY CLARK MEACHUM , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
Appellant Dalith A. Regost complains of the trial court ’ s decisions appointing her and appellee Julien Regost as joint managing conservators of their child L .C.R. and awarding Julien the right to dete rmin e the child ’s pri ma ry residence. 1 We affirm the trial court ’ s decree.

FACTUAL AND PROCEDURAL SUMMARY Dalith and Julien married in August 2017, and L.C.R. was born in September
2017

. The parties filed for divorce in 2019, with Julien fil ing in Septe mber and Dali th fil ing a counterpetition in October

. In mid

- October 2019, the trial court signed agreed temporary orders, which appointed the parents as join t managing conservators and prov ided that Julien would have possession from Sunday through We dnesd ay, that Dalith would have possession from

1 Because the parties share the same last nam e, we will refer to them by th eir first names. We will refer to the ch ild by his initials

. See Tex. R. App. P. 9.9.2 Wednesday through Sunday, and that the parents would exchange L.C.R. at the p olice station

. T he parties filed various motions asserting violation s of the t emporary orders , a n d the trial court twice signed additional temporary orders r elating to Dali th withholding possessi on of L.C.R.
On J uly 21, 2020, about a week after Julien filed an a mended petition seeking

“ primary possession , ” a final hearing was held , and t he trial court heard testimony by Julien ; Dalith ; Dal ith ’ s mother , M ar ia G amboa ; Dalith ’ s friend , Leticia Martinez ; C hild P r otective
S ervices Investigator Paul Cheeve r; and the parties ’ attorneys. 2 Julien testified about moving to the Uni ted State s from Eur ope , en tering a rel at ionship with Dalith, and deciding with Dalith t o h a ve a child. He testified that difficulties aro se due to the parents ’ schedules and after Gamboa came to live with them , saying that Gamboa “ doesn ’ t like me since the beg inning anyway,

s omething against

— ag ainst me, and I know. ” He tried to improve h is re l ationship with Gamboa, but she never liked him, and he said , “ [I] t ’ s fine for me. I mean, I don ’ t have to be in love [with] my mother

- in

- law. It ’ s okay. ” Julien testified that he quit his job as a pastry che f after Da lith complained that he was no t mak i ng enough money . He s tarted truck

- driving school but quit when he realized it would be too difficult and when Dali th again complained that he was not making money. Julie n then d rov e fo r Uber and Lyft until he was arrested in 2019 for assault causin g inj u ry to a child . Julien explained that two days before he was arrested, Gamboa and Dalith had called the police to make a similar report , but the police came to the house , checked

on L.C. R., and “ said, Nothing happened. ” Two days later, Gamboa called t he p olice again, and when Julien arrived home , he was arrested and placed in jail

. J ulien later learned that while he was in jail, Dalith “ call [ ed ] the bank and volunteer [ed] to have [his] car repossessed , ” offering into evidence a volunt ary repossessio n for m signed in Sept ember 20 19 and testifying that at the

2 Gamboa an d Martinez testified through a n interpre t er.3 time of the reposse ssion, his only source of income was as a driver. Julien testified that t h e assault charge had been dismissed and tha t the allegation was false. Julien agreed that there was

a ch arg e pending against him for assault family violence against Gamboa

. After moving out of the family ’ s house , Julien lived in an Airbnb where he had his own room and shared a ba thro om. He said h e had shared the house with “ [p]eople who take a room at the A ir b n b , ” e xplain ing that “ [t]he people stay two weeks, and they leave, and they have not so many pe ople because of the COVID

- 1 9

. ” The week of the hearing, he s igned a six

- month l ease to move int o a studio and was in the process of moving. He was mov ing be cau s e he wanted to “ just be with [ L.C.R. ] in the studio, just being together an d no other people

. ” Julien testified that he had not yet received any child

- support payments from Dalith , although he was not sure “ ho w to get the child support, s o I didn ’ t r e all y check about it. ” If he received ch ild suppor t from Dalith, Julien said, he would have more income to use towards his living situat ion. He was working at a restaurant , and his hou rs were fr om 3:00 a.m. to 11:30 a .m. When he has possession of L.C. R. , ho w e ver, “ My schedule change [s]

. When I have [ L.C.R. ] , I work 9:00 a.m. to 3:00 p.m., and I put [ L.C.R. ] in daycare

. ” Julien testified that Dalith had called CP S multiple times to allege misconduc t by
Ju lien , making allegations “ from the very first h ear i ng
. ” He denied her allegations that he had hit L.C.R. or that he had committed any sexually inapprop riate behavior

— saying, “ No, I didn ’ t do anything , ”

— and testified that she had made her allegations about him masturba ting in fro nt of
L.C.R. at the hearing o n te mporary orders. He had dealt with three CPS investiga t ors and had been interviewed multiple times, and “ [t]hey ruled out everything. ” Julie n also testified about Dalith ’ s lack of cooperatio n with the trial cou rt ’ s temporary orders , s ayi ng that s he di d no t always exchange the child as scheduled and repeatedly denied him possession , including4 Christmas , Julie n ’ s birthday , and Father ’ s Day

. Julien said that as reasons for denying him possessio n , Dalith gave him “ pretty much everything. Li ke the simpl e n o t o op en cases with
CPS , ” and he had had to file “ multiple habeas actions to try and get her to follow the Court ’ s order. ” He testif ied that he withheld possession once for medical reasons in Mar ch 2020 . Julien explained that Dalith ha d t old him that L

. C .R

. had had a fever for about a week , and when she brought the child to Julien for hi s possession period, L.C.R. “ was not okay. He was, like, not sick, but there

— something was going on, and I try to figure out what ’ s going on. He still ha ve fever, a lo t of fever this day

. . . . ” When J ulien changed L.C. R. ’ s diaper, he realized :

on [L.C.R. ’ s] bottom are a was like very, very bumpy, so I got

— I got a little bit scared about it, and I give him Ty lenol to reduce the fever. He was kind of o k ay
. But anywa y, I d ecide to take him to the

— to the emergency room in South Austin, and they

— they were really concerned about it, and they told me to go right away to the

— to check in the hospital because they to ld me [L.C.R.] has an abscess on his bott om are a. And he h as t o

— to be

— like, he had to have some surgery, and she told me

— the

— the doctor told me to go right away, an d she even told me to use an EMS. I was, like, No, it ’ s fine. I take my car. So I went t o the hospital, and [L.C.R.] has the surgery to remove the ab s c es s. After surgery, J ulien “ went to Court to ask the judge if I can keep him until he recover, so

— the judge say no. He can go back with his mom. And the same day, I just wait on [L.C.R.] unti l his mom complained with the judge

. ” Julie n t estified tha t t h e only CPS report he had made against Dalith was related to his discovery of L.C.R. ’ s abscess

. Julien testified that he wanted L.C.R. to “ do the child therapy and make sure he ’ s fine ” but that i t had been hard to find a therapist for a c hil d of L.C.R. ’ s a g e , particularly during the pandemic , because most therapist s want to do virtual meet ings. Julien tes tified that although
L.C.R. cr ies at exchange s, “ Most of the time he ’ s really tired, so it doe sn ’ t really help, ” and Dal i t h “ just tak[es ] f orever to do t h e e xchange. ” Once the exchange is done, Julien said, L.C.R.5 is back to “ really happy ” within “ five minutes after we start talki ng to each other. ” Julien tries to keep L.C.R. on a normal schedule , the child eats well with him, and is lea r ni ng French an d
E n gl ish in addition to the Spanish he speaks in Dalith ’ s home. L

. C.R. is smiling, happy, and

“ perfectly fine ” during Julien ’ s periods of possession , and Julien sa id, “ We play together. I teach
hi m stuff. I go out with him. . . . And I enj oy with him, a n d h e enjoy w ith me. ” Julien was seeking primary posses sion because L.C.R. “ needs to have his dad around him, and he loves me and I know , ” and because Dalith :

refused to comply with the court order, and she als o did an alienation the last tim e we went to c o u rt

. She refused to let [ L.C.R. ] see me or be around me, I think it ’ s not nice because I didn ’ t do anything. And the CPS worker was

— like ruled out everything. I want just [to] be able to

— to decide fo r the best in terest of [ L.C.R. ] for the school or i f h e ha s to go to hospital and everything, I do, like, take good care of him.

He te stified that Dalith “ don ’ t want to co

- parent with me ” and had told him that he was “ a bad dad ” and “ not a good person , ” in cluding when L.C.R. was present. Ju lie n further te sti f ied tha t he thought Dalith should have a restricted possessi on schedule “ becaus e of the alienation she did, ” which meant Julien had to make up missed time and “ need [ ed ] to be with [ L.C.R. ] more. ” Juli en had missed thirty

- si x days of po s ses sion time ov er a six

- m onth period. He said that Dalith had agreed to the temporary orders “ but hasn ’ t respected it. ” Julien introduced into evidence lette rs from the Texas Department of Family and Protective Services stat ing that CPS had investig ate d and ruled out the f ollowing : an a llegatio n by Dalith of physical a buse by Julien , ruled out in October 2019 ; a n allegation by Dalith of neglectful supervision, p hysical abuse, and sexual abuse by Julie n , ruled o ut in May 2020; and an alleg ation by Jul ien of medical negl ect a nd neglectful
super vis ion by Dalith , ruled out in May 2020

. Cheever also testified that nine reports were made against Julien since April 1 6, 2020 but d id not rise to the level of wa rranting an investigation ,6 and an additional repo rt was filed the da y be f ore t rial. He also intr oduced May 2020 email s between Cheever and Julien ’ s attorney discussing whether there were any open CPS cases that migh t justify Dalith ’ s withholdi ng possession o f the child

— Cheever tol d the attorney that the r e

were no open cas e s. D alith testified that after she and Julien married and he go t his green card , she saw

a “ drastic change in his personality. He started, like, being mad, upset all the time

. Didn ’ t want
to interact to o much together as a family. ” Ju lien was “ very con trol l ing, mani pulative , ” started monitoring her by her cellphone, told her not to go out with her friends so much, and told her she should not wear makeup. After D alith expre ssed her desire for a divorce , Julien threatened to call t he p olice if she left with L .C.R. Dalith testified that during the marriage , she had concerns about J ulien injuring L.C.R. “ multiple times ” : h e once le t a door slam on L.C.R. ’ s arm ; he sometimes pu shed L.C.R. wi th “ too much force , ” causing him to fall ; a nd h e once put L.C.R

. into a stroller “ using too much force, ” causing the child to cry. Dalith also described an inciden t in which she left L.C.R

. ’ s room and was talking to her mother in another roo m when she hea r d
L.C.R. “ crying, like h ysterically like t o o m uch

. ” S he and Gam boa r a n into the room, where they found Julie n , who had been sleeping on the couch, “ already there carrying [ L.C.R. ] like this with his face like this (indicatin g)

. ” Juli e n tol d D alith that L.C.R. had been “ crying for so long ” an d

as k ed why she ha d not co me in

. Dalith responded that the child had just started crying and tried to take him , but Julien “ didn ’ t want to let me see him. ” When Dalith finally got L.C.R. , she saw

“ redn ess on his ch eek ”

— a “ red mark ” that made Dalith thin k Ju l i en had slapped him.
D alith also had concerns during the marriage about Julien ’ s “ sexual tendenc ies around ” L.C.R. , explaining that Julien always wanted to be present during bath time and would

“ stand there and w atch. ” O n two occasions, she left to get so m eth ing and came back to fi n d7 Julien with “ his hand around [ L.C.R. ’ s ] genital area

. ” Julien told her he was ju s t bathing L.C.R. , but she asked why he was n ot “ using a w ipe ” because she was “ still usi ng wipe [s]

. ” She said :

It was uncomfortable, but it was to o ea rly to imagine that h e was doing anything in a

— in a bad way, so I let it pass. But then other incidents started happening, seeing things with [ L.C.R. ] , like [ L.C.R. ] touching too much his genital area, in a way that was not appropriate for his age. Li ke d idn ’ t want th e

— the d iaper changed, like his reaction to that, hitting his head. And then the most recent

— the last one that kind of made me think that, yes, there ’ s a possibility, is that I

— one mo rning I s aw

— we were in the master bedroom, and at that t ime, we still had [ L.C. R

. ’ s ] crib in

— in the bedroom as well. And one morning, really early morning, I woke up and I saw Juli e n completely uncovered, mas turbating in f ront of [ L.C.R. ] because [ L.C.R. ] was alr eady awake and was sitting there watching.

. . . I s aid, Why are yo u sh o wing that to the

— to this baby? And I imme diately put a cover on him becau se he was naked. And he kind of tried to, like, make it like it was not a big deal. He was, like

— I ’ m just sc ratching. I said, No, I saw what you were do ing

. D on ’ t do that. Don ’ t do that.

Dalith testified that she never told anyone about those incident s because “ for m y culture it ’ s kind of like ashamed to speak things like this. ” She also said she a greed to t he temporary orders, which gave J ulien fifty

- per cent possession, be caus e she “ had no other option ” and h er lawy er at the time told her she had to accept it

. Dalith stated that even at the time she

ac cepted the orders, she di d not think they were in L.C.R. ’ s best interest because “ of the recent incid ent s th at just happe ne d th a t still were being investigated, the domestic violence cases against ” Gamboa and L.C.R. , a nd her “ concerns regarding Juli e n ’ s behavior , ” in cluding sexual abuse . She said, “ That ’ s why I requested a

— a guardian ad litem, which was

— I s till don ’ t understa nd w h y was not approved, and also beca use I witness, like, how

— how many instances of neglect from Juli e n to [ L.C.R. ]

. ” I n addition, L.C.R. had come home from time with Julien with severe diaper rash that required a doctor ’ s visi t, and s he s aid his be havio r is “ different. I t ’ s kind of like he ’ s sad, and he gets upset, and he doesn ’ t

— it takes time for him to kind of adjust again and to

— to eat well. ” L.C.R. “ doesn ’ t want to go with his dad ” and is “ not comfortable8 going with his dad , ” and h e had begun hitti ng h i s head “ with a wall or with a chair, kind of like to show that he ’ s upset, and it k ind of takes time for me just to calm h im down. ” Dalith admitted that she had violat ed the temporar y orders and said it was be cause she was conc ern ed abo ut L.C.R. ’ s saf ety , apologiz ing to the court but saying , “ [I] t ’ s like I have no other option because I see my son is suffering

. ” However, she also testified that she had refused Julien possession at Ch ristmas because “ I wanted for [ L.C.R. ] to spe nd Ch rist mas on a place wher e he will have a Christmas tree, his presents. And I d idn ’ t know what was Juli e n, since he refused to tell me how

— what he was doing at the Airbnb and moving too much. ” Dalith int ro duced into evi dence a video showing L.C.R. cr ying a nd s a ying “ Papa no ” rep e atedly while he sat in a car and testified that such behavior was common for visits “ throughout the
spr ing of this year. ” She said it was clear to her th at L.C.R. is “ terrified to go with his dad

. ” She denied that L.C.R. had ever hear d her speaking badl y of Julien and te stified that the child had
h eard Julien call Dalith names like “ bitch. ” Dalith said she had asked Julien mu ltiple times to enroll L.C.R. in therapy , and her attorn ey asserted that J ulien had “ objected ” to tha t prop osal

. Gamboa testif ied t h at she moved in with Dalith and Julien in June 201 9 . A sked what problems she saw in the family , she answered, “ Well, basically, the way that [Julien] will interact with the child. B asically, he wa s too

— he didn ’ t have patien ce. ” He “ will scold him all
t h e time and everything was no, no. The only word that the child wil l hear from him was no. ”
Ju lien was qui et and spoke to Gamboa very little, but “ he was always upset about everyt hing ” and thought “ everything in F rance was b etter. ” H e also did not like h is job , and Gamboa testified that she moved in with the family be cause Julien quit his job and went to Dallas to go

“ to a school to learn how to be a truck driver ” but then “ a week and a half later, he dropped it.
He

— he didn ’ t lik e it because he tol d me t hat he would think

— he thought he was not going to9 pass the exam. ” Gamboa said Ju lien “ told the school that his mother

- in

- law was very si ck with
cancer so t hat he didn ’ t hav e to pa y to finish ” the course.
G amboa testified th at Jul ien was arrested in Augu s t 2019 beca use “ he hit the child, [L.C.R.], and h e hit me. ” Gamboa said that Julien “ was upset because he didn ’ t want to work for Uber anymore. ” She also said, “ I notice when he gets mad becau se his face gets red. Everythi ng abo ut t he baby will up set h i m
. ” L.C.R. was pushing a chair, and Julien “ was so upset that he hit the child with the chair ” and then hit and pushed Gamboa “ to get out of the way. ” Gamboa also said that when L .C.R. was about eight months old, the baby “ s tart
t ouch ing his scrotum

. It hurts kind of strong, but it was as if he was masturbating himself. And

ano ther thing that, you know, I wanted to say, because he will get scared because when he will get close to him, he will hit him. ” Gamboa had made repo rts to CPS “ [b] ecause at the e x change s every time that [L.C.R.] will come back, he will have bruises, he will come very irritable, and things like that. ” She was asked what L.C.R. is like when he gets back fro m visit s w ith Julien , and she said that it mad e her “ ver y sad ” because L.C.R

. acts different , acts sad, and “ hits himself in the head. ” Gamboa was asked whether ea rlier in the month , L.C.R. had made an outcry to her against Julien , a nd she said he had . At that point, Julien ’ s attorney objected on gr ounds of
h earsay . Dalith ’ s at t orney responded, “ Your Honor, this is an outcry. ” The trial court stated:
Well, you haven ’ t done everything that ’ s required under the Family Code. I mean, you really haven ’ t. An d so

— but that said,

. . . I ’ m going to sustai n your obj ection, but the only thing that ’ s going to happen now is [Dalith ’ s at torney] will now move into the offer of proof, and so I ’ m sustaining your objection. She can move toward her offer of proof and the n we ’ ll go from th ere.

In t he offer of pro of , Gambo a te stifie d that wh en s h e was changing L.C.R. ’ s diaper , wit h just the two of them in the room , L.C. R. said “ [t] hat his dad had touched his10 peepee
. ” Gamboa was asked whether L.C.R. made any other comments in that timeframe, and she answered , “ He does n ’ t wa nt t o be touched. I hav e videos that every time that he comes back from his dad, he comes back that wa y, that he doesn ’ t want anybody to change his diaper

. ”
CPS Investigator Paul Cheever explain ed that when a report alleging child abuse or neglect is ma de, “ a supervisor w ill det e r mine whether or not a case gets stage pro gressed from an intake report to an investi gation ” based on whether the r eport contain s information indicating a need to investigate. H e testified that CP S had investigated five re ports rela t ed to L.C.R. , some of w hich involved multiple allegations

— one or t wo were ag ainst Dalith, and the rest were against Julien

— and all the reports had been ruled out , the last one being closed in April 20 20

. 3
E arlier allegati ons were ruled out by o ther i nves tigators , and C heever h ad investigated seve ral of the more recent allegations against Julien and ruled them out because “ [ t] here wasn ’ t suffi cient evidence to state th at th ose allegations occurred. ” C heever discussed with Dal ith her allegations of sex ual abuse by Julien , met w i th Julien, and obser ved both par ties ’ homes before ruling out
t he allegations. He also said that “ there ’ s been several reports made, but they haven ’ t been stage progressed to an investigation , ” testifying that s inc e May 20 20 , t h e De partment had re ceived t en additional report s, none of which were found to be “ sufficient to rise to an investigation

. ” Cheever was not aware of any ongoing o r active in vestigations at the t ime of the hearing , but he said CPS ha d rece ived a new r eport the day before and he did n ot know “ about t his new one. ” Cheever was asked wh ether he knew anything about the peop le who had lived in the Airbnb with Julien

. Julien reported that “ there was one other pers on, but then he said people

3 Dalit h and Gamboa testified that they had not made all the reports to CPS but that they had made reports or a llegations to therapists or “ dif ferent organizations, and they are the ones that are in c harge of calling CPS. ” However, according to Cheev e r ’ s testimo ny, as a res u lt of Dalith ’ s and Gam boa ’ s accusations, at least fifteen repor ts had been made to CPS.11 were in and out ” and “ t old [Cheever] that he didn ’ t know the n ames
. ” Ch eever ’ s supervisor said that Cheever “ did not have jurisdiction to a sk them for that information since it was an Airbnb , ” and therefore, although Cheever wa s a ble to view Julien ’ s residence , he was not able to i nvestigat e othe r peopl e who might be staying there. Ch eever said that at the Airbnb, L.C.R. sle p t in the same room as Julien and that there was a crib in the room for the child. Leticia Martinez testi fied t hat she had known Dalith for abo ut a ye ar and had seen her with L.C.R. “ m any times. ” She said Dalith is “ a mother that ’ s always aware and watching the needs of her child ” and “ she puts him first, his needs, of t he child

. ” She had never seen Dalith m aking “ a wrong decision as a mother, ” nor ha d s he seen Dalith do anyt hing di s honest. Martinez had visited Dalith ’ s ho me and said it was “ a very safe place, a very neat place. ” After taking the case under advisement , the court sent a letter stating that it was ruling t hat Julien and Dalith would b e appo inte d joint managin g conse rv a tors , that Julien would have the right to designate L.C.R

. ’ s primary residence, and that the parties would have a “ one week on and one week off of 50/50 ” possessio n sched ule. In April 2021, t he court signed a final decre e of d ivor ce to that effe ct , div i d i ng the parties ’ property , appo inting both parents as joint managing conservators, giving Julien the right to designate L.C.R. ’ s primary residence , and setting out a possession schedule. On Da lith ’ s req uest, the court fil ed fin ding s of fact and

c onclusion s of law stating , among other things, that “ [t] he Court, in general, found [Ju lien] to be

a credibl e witness ” ; found “ portions of [Dalith ’ s] testimony were credible and other s l ess so ” ; foun d that Dalith was “ a difficult w itness at times ” who had to be ca u t ioned “ to focus as a witness and answer the questions being asked ” ; found that Cheever “ credibly t estified about the numerous allegations made ” against Julien by Dalith and th a t the allegation s “ had been ruled out and tha t ther e wa s not DFPS conc ern with [ Julie n ] having possession ” of L.C.R.12 ST A N DARD OF REVIEW Suits affecting the parent

- child relationship are “ intensely fact driven ” and require courts to balance many fac to rs. Lenz v. Le nz , 79 S.W.3d 10, 19 (Tex. 2 002). “ In dete rmining issues of conse rv a torship and possession of a child, the primary consideration of the court is the best interest of the child , ” and the trial court has br oad discretion to assess the child ’ s be st interest

. Coleman v. Coleman , 109 S.W.3d 108, 1 10 ( Tex. App.

— Austi n 2003 , no pet. ) (citing
Tex. Fam. Code § 153.002 ; Gillespie v. Gillespie , 644 S.W.2d 449, 451 (Tex. 1982) ); see In re
J.J.R.S. , 627 S.W.3d 211, 218 (Tex. 2021) ( “ A trial court ’ s de te rmi n ation of wh at is in the child ’ s best interes t, spe cifi cally the estab lishment o f terms and conditions of conservatorship, is a discretionary function. ” )

. Similarly, “ [w] e review a trial cou rt ’ s decision to admit or exclude evidence for an abuse of d is cre tion. ” In r e J.P.B. , 180 S.W.3d 570, 575 (Te x. 200 5)

. A tr ial
court does not a b use its discretion unless it act s in an unreasonable or arbitrary manner or without reference to any guiding principle , and we may not reverse for abuse of discretion

mer el y b ecause we di sagree with the decision

. Zeifma n v. M iche ls , 212 S.W.3d 582, 587 ( T ex. App.

— Austin 2006 , pet. denied ) ; Col eman , 109 S.W.3d at 110

. In our review, w e ask first whether the trial court had sufficient information on which to exercise its di scr etion and th en whether it erred in its applic ation of t hat discretion. Echols v. O livarez , 85 S.W.3d 475, 477

- 78 (Tex. App.

— Austin 2002, no pet.)

. There is no abuse of discretion “ as long as some evidence of a substantive and probative charact er exists t o

su pp ort the trial court ’ s decisio n
. ” Zei fm an , 21 2 S. W.3d at 587. U nd er an abus e - of

- discretion standar d, legal

- and factual

- sufficiency challenges “ are not independent grounds of error, but are relevant factors in assess in g whether the t rial court abuse d its discretion

. ” I d

. “ The test for legal suffi c ienc y is ‘ whether t he evidence a t trial would enable reasona ble and fair

- minded people to13 reach the verdict under review , ’ ” and re quires us to credit evidence favorable to the finding if a

r easonable fa ctf inder could and disregard contrary evid ence unless a reasonable fact fi nder coul d

n o t. Teal Trading & Dev., LP v. Champee Springs Ranches Prop. Owners Ass ’ n , 593 S.W.3d 324 , 333 (Tex. 2020) (quoting City of Keller v. Wilson , 168 S.W.3d 80 2, 827 (Tex. 20 05)). In considering factual sufficiency , we consider the entire r ecor d and “ set asi d e the finding only if the evidence supporti ng the finding is so weak as to be clearly wrong and manifestly unjust. ” Gonzales v. Maggio , 500 S.W.3d 656, 66 2 (Tex. Ap p.

— Au stin 2016, no pet.)

. Whether reviewing leg al or fa ctual sufficienc y , we m ust bear in m ind that the trier of fact is the “ sole judge of the credibility of the witnesses and the weight to be given their testimony. ” In re P.A.C. , 498 S.W.3 d 210, 214 (Tex. App.

— Houston [14th Dist.] 2016, pet. denied)

. “ The trial court is i n the b est position to observe the demeanor and personalities of the witnesses and can ‘ feel ’ the forces, powers, and influences that cannot be discerned by merely reading t he record

. ” E c hols , 85 S.W.3d at 477 (quoting Jeffers v. W allace , 615 S.W.2d 252, 2 53 ( Te x. App.

— Dall a s 1981, no writ) ) ; see Zeifman , 212 S.W.3d at 587 ( trial court “ is best able to observe the witnesses ’ d em eanor and perso nalities ” ); In re J.R.D. , 169 S.W.3d 740, 743 (Tex. App.

— Austin 2005 , pet. denied) ( trial c ourt “ is in a better posi tion t o determine w hat will be in the best interest of the child since it faced the parties and their witnesses, observed t he ir demeanor, an d had the opportunity to evaluate the claims m ade by each parent ” ). “ In an appeal from a b ench trial, findings of f act ar e the equiva l ent of jury answers to special issues , ” and unchallenged findings of fact are binding in our review “ unl es s the contrary is established as a matter of law or there is no evidence to support the finding. ” Morris v. Veilleux , No. 03

- 20

- 00 385

- CV , 2021 WL 43 4 1967, at * 5 (Tex. App.

— Austin Sept. 24, 2021 , no pet.) (mem. op. )

.14 DISCUSSION On appeal , Dalith complain s of the trial co urt ’ s decisions related to testimony about an alleged outcry by L.C

. R. and challenges the c ourt’s determinations tha t it i s in L.C.R.’s best interest for both parents to be appointed joint managing conserv ators and for Julien to determine L.C.R.’ s primary r es idence . E ach of her issues is reviewed und er a n abuse -ofdiscreti on standard. See In r e J.J.R.S. , 627 S.W.3d 211, 2 18 (Tex. 2021) (best interest , particularly in matters of con servatorship); In re J.P.B. , 180 S.W.3d 570, 575 (Tex. 2005 ) ( admission of e vidence); Supakorndej v. Shang Xu , No . 03 -20-00177- CV, 2021 WL 81862, at *1– 2 (Tex. App. —Austin Jan. 7, 2021 , pet. denied) (m em. op.) (con servatorship ); Johnson

v. Johnson , No. 03 -19-00196- CV, 2020 WL 4726589, at *10 (Tex. App.

— Austin Aug. 13, 2 020 , no pet. ) (me m. op. ) ( primary resi dence) ; Coleman v. Coleman , 109 S.W.3d 108, 110 (Tex. App.—Au st in 2003 , no pet.) (b est interes t). We will be gin with Dalith ’ s issues that relate
to L.C.R.’ s alleged outcry statement.

ALLEGED OUTCRY Dali th a rg ue s that the tr ial court abused its discretion in erroneously excluding Gamboa’ s te s timony about L. C.R. ’ s alleged outcry about sex ual abuse, that it shou l d have found the outcry statement to be reliable and admissible , and that the court should not have sustain ed Julie n’ s hearsay objection

. Dalith asserts t hat L.C.R. ’ s “ outcry statemen t and unusual be havior

. . . a re

c onsistent with abuse as sexual indecen c y harmful to a child ’ s well

- being ” and argues that the trial court should have found the alleged outcry to be reliable because Dal ith was not present and thus could not t es tif y about it herself; there was no indi cat i on that Gamboa had solicited the inform a tion ; Dalith testified that Julien had masturbated in L.C.R. ’ s presence ; and L.C.R. was15 only two years old when he made the statem ent and thus was both capable of describ ing a n instance of s exual inde ce ncy and “ t oo y oun g to f abri cate such a specific state m ent. ” 4 She argues that the trial court should have found Gam boa ’ s testimony to be reliable outcry testimony under
S ection 104.00 6 of the F amil y C ode, which provides:

In a suit affecting the parent

- child relatio nshi p, a statement made by a child 12 years o f age or younger that describes alleged abuse against the child, without regard to whether the statement is otherwise inadmiss ible as hearsay, is admissible as evidence if , in a hearing conducted outside the pre senc e of the jury, the court finds that the t ime, content, and circumstances of the statement provide sufficient indications of the statement ’ s reliability and:
(1) the ch ild testifies or is available to testify at t he proceeding in court or in any other m anne r provided for by law; or
(2) the court d etermines that the use of the statement in lieu of the child ’ s testimony is necessary to protect the welfare of the child.

4 I n her statement of issues presen ted , D al ith also lists “ Issue Four ” as fol lows: “ The trial court erred by failing to make an additional fin d ing of f act of grandmo t her Maria Gamboa ’ s testimony and sexual abuse of L.C.R. by Julien against the great weight o f the evidence. ” However, her b rief d oe s not present a rgument related to any omitted findings , instead arguing that the trial court should h ave foun d L .C.R. ’ s all e ged outcry, as described in Gamboa ’ s testimony , to be reliable an d admissible. “ Points of error asserted on appeal but not brief ed are waived. ” Smith v. Tilton , 3 S.W.3d 77, 84 (Tex. App.

— Dallas 1999 , no pet. ) ; see Tex. R. App. P

. 38.1(i) (a ppellant ’ s b r ief must include argument for contentions made , with citations to authority and to appellat e record)

. Further, the trial c ourt e nt ered findings o f fact and conclusions of law as reque sted by Dalith, including findings related to t h e parents ’ credibilit y, and she did not request further findings or other wise complain of any o m itted findings. “ W hen a party fails to timely requ est ad di tional findings and conclusions, it is deemed to have waived the right to complain on appeal of the c ourt ’ s f ail ure to make t hem

. ” Howe v. Howe , 551 S.W.3d 236 , 244 (Tex. App.

— El Paso 2018 , no pet. ) ; see Hamilton v. Hamilton , No. 02

- 19

- 00211

- CV, 2 020 WL 6 498528, at *1 ( Tex. App.

— Fort Worth Nov. 5, 2020 , no pet.) (mem. op. ) ; see also In re Marriage of C. A .S. & D. P.S

. , 405 S.W.3 d 373, 381 (Tex. App.

— Dallas 2013, no pet.) ( untimely request for additional findings waives issue related to refusal to ent er add it ional findings ) ; Goo dfellow v. Goodfellow , No. 03

- 01

- 00633

- CV, 2002 WL 31769028, at *8 (Tex. App.

— Au s tin Dec. 12 , 2002, no p e t.) (not designated for publication) (same) . Thus, any c omplaint s about omitted finding s a re waived.16 Tex

. Fam. Code § 10 4.006. She also a rgues that even if the testi mony was not admissi ble und er S ection 104.006, i t sh ould have been a dmitted un der one of the following hearsay exclusion s :

(2) Excited Utterance . A statement relating to a startling event or co ndition, made while the declarant was under t he stress of excitement that it caused.
(3) Then
- Existing Mental, Emo tional, or Phys i cal Condition . A statement of the declarant ’ s then

- existing state of mind (such as motive, intent, or plan) or emotiona l, s en sory, or physical condition (such as mental f eeling, pain, or bodily health), but not incl uding a statement of memo ry or belief to prove the fact remembered or believed unless it relates to the validity or terms of the declarant ’ s will.

Tex. R. E vid. 803(2 ), (3).

“ The trial cour t has extensive disc retion in evidentiary rulings, and we wil l up hold decisions within the zone of reason a ble disagreement. ” Diamond Offshore Servs. Ltd.

v. Williams , 542 S.W.3d 539, 545 (Tex. 2018)

. In determining whether an all eged outcry should be adm i t ted, a trial court consider s v arious “ [i]ndicia of reliabil ity, ” which may include:
(1) whether the chi l d victim testifies at trial and admits making t he out

- of

- court statement, (2) whether the child understands the need to tell the truth and has the ab ility to observe, re collect, and narrate, (3) whether the oth er e vidence corroborates the s tatement, (4) w h ether the child made the statement spontaneousl y in his own terminology or whether evidence exists of prior prompting or man ipulation by adults, (5) whether the child ’ s statement is clear and unambiguous and ri ses to the needed l evel of cer tainty, (6) whe t her the statement is consistent with other evid ence, (7) whether the statement describes an event that a child of the victim ’ s age could not be expec ted to fabricate, (8 ) whether the child behaves abnormally af ter the contact, (9) whether t he child has a m otive to fabricate the statement, (10) whether the child expects punishment because of reporting the conduct, and (11) whet her the accused had the op portunity to commit the offense

.17 In re M.R. , 243 S.W.3d 807, 813 (Tex. App.

— Fort Worth 2007 , no pet. ) (c it i ng Tex. Code C rim.
P roc . art . 38.072; Norris v. State , 788 S.W.2d 65, 70 (Tex. App.

— Dallas 1990, pet. ref ’ d) ). It is
true that, as Dalith notes and our sister court h a s explained, t he reliability to be assesse d un der
S ection 104.006 , or it s criminal equi v alent A rticle 38.072, is “ the reliability of the child ’ s declaration, not the witness relaying the c hild ’ s declaration

. ” Id . (citing Tex. Code C rim. P roc
. art . 38.07 2 ; Holland v. State , 770 S.W.2d 56, 59 (Tex. App

. — Austin 1989), aff ’ d , 802 S.W.2d 696 (Te x . Crim. App. 1991) ) . However, t hat does not mean that a trial court is required to admit testimony about an alleged outc ry if it determines that the witness seeking t o give the testimony is not credible

. 5 On this record, whether we conside r the testimony ’ s admissibility under S ection
104 .006 or R ule 803, we cannot conclude that the trial court ’ s de cision t o exclude Gamboa ’ s testimony about L.C.R. ’ s a lleged statement fall s outside the zone of r easo nable disagreement.
See Diamond Offshore , 5 42 S.W.3d at 54 5

. The trial court e xplicitly found Julien to be credible and Dalith to be less so

— t he court did not make any findings specific to Gamboa ’ s credi bility , and Dalith did not request any

. Gamboa , wh o testi fied through a translator , had to be redirected

seve r al times to answer t he question asked or to limit her answers and gave testimony that at time s was i nconsistent or di fficult to understand

. G ive n the trial court ’ s credibility deter min ations, the possible language barrier, the tenor of Gam boa ’ s testimony about Julien in
gene ral , Julien ’ s testimony that Gamboa never liked h im and had lied to the police a nd C PS about him, Cheever ’ s tes ti mony about t he large number of reports made against Julien that were

5 The va st ma jority o f the caselaw in this area focuses on whe ther a trial court ab uses its discretion in admitting hearsay, rath e r than w he t her it abus e s its discretion in excluding it. E ven if a statement could be a dmissible because it could be viewe d as sufficiently fall in g under R ule 104.00 6 or a nother hearsay exception , th at does not mean th at the trial court was required to ad mit it

— only that we wo u ld uphold its admission if the court had so decided.18 investigated and ruled out or did not rise to the lev e l of warranting an investigation , L.C.R.’ s youth, and the substance of the alleged outcry , 6 t he cour t did not abuse its discretion in determin ing that Gamboa ’ s testimony about L.C.R. ’ s alleged sta te ment was not something on which it could r ely

. See P.A.C

. , 498 S.W.3 d at 214 (factfin der is sole judge of credibility and weight to be give n to testimony ) ; Echols , 85 S.W.3d at 477 ( trial court observes witnesses and

“ can ‘ feel ’ the f orces, powers, and in f luences that cannot be discer ned ” from appellate record)

. We overrule Dalith ’ s issue s related to the trial court ’ s refusal to admit Gamboa’ s testimony about L.C.R.’s alleged out cry.

FINDING S RELATED TO CONSERVATORSHIP In her remaining issues, Dali th conte nds that the court’ s decisions relate d to conservatorship are against the great weight and pre ponderance of the evidence and th at the evidence is legally and factually insu fficient to support the court ’ s finding that it is i n L.C.R. ’ s best interest to appoint the parents as joi nt managing conserv ators

. 7

6 Gamboa testified that L.C.R. told he r that Julien “ had touched his p eepee .” However, it is not unusual for a parent to have t o touch their child ’ s genitals, particularly a youn g child who wears a di a per a nd needs assistance bathing. And under A rticle 38.07 of the C ode of C riminal P roce dure, S ection 1 04.006’ s criminal equi valent , see In re M.R. , 243 S.W.3d 807, 813 (Tex. App.

— Fort Worth 2007 , no pet. ), “ [t] o qualify as an outcry , ‘ the statement must b e mor e than words which give a general allusion that something in the area of child abuse was going on,’” Hines v. Stat e , 551 S.W.3d 771, 781 (Tex. App. —F ort Worth 2017 , no pet. ) (quoting Garcia v. State , 792 S.W.2d 88, 91 (Tex. Crim

. App. 1990), and citi n g Tex . Code Crim. Proc. a rt. 38.072 ).

7 Dal ith also includes in her list of appellate iss ues challenge s to t he court’ s primary

- residence determination . However, she does not brief that issue and instead subsume s it into h e r argument related to the cour t’ s decision to name her and Julien as joint managing conservators , apparently assuming that if we were to dete rmine there was error in naming the parents as joint managing conservators , she would be name d sole managing con servator and given the right to de termine the child ’ s primary residence. She does not present any i ndependent19 “ It is a rebuttable presumption that the appointment of the parents o f a child as joint managing conservator s is in the best interest of the child , ” but if a tri al co ur t finds a histo ry of family violence in volving the child ’ s parents , the presumpt ion disappears

. Tex. Fam. Code § 153.131

. If the parents do not file an agreed parenting plan, the trial court may appoint the m as join t managing conservato rs “ only if the appointment is in the best intere st of th e child ” in light of , as relevant here , w he ther the chil d ’ s “ physical, psychological, or emotional needs and development ” will benefit from the appointment of joint managing conservators; the parents ’ ability “ to give first priority to the welfare of the c hild and reach shared decisions in the ch ild ’ s best inte r est ” ; “ whether each parent can encourage and accept a positive relationship between the child and t he other parent ” ; the parents ’ pre - suit parti cipat ion in child rearing ; the geographical proxi mity o f the parents ’ residences; and “ any other relevant facto r
. ” I d . § 153.134(a). When the parents are appointed joint managing conservators, the trial court must designate o ne parent as having the exclu sive righ t to determine th e child ’ s primary residence

. Id . § 153.134(b)(1). Dal ith argues tha t the trial court erred in na ming Julien as a joint managing
conservator because of her testi mony that she caught h im mas turbating in front of L.C. R. and that t he child was acting out after his time with Julien ; Gam boa ’ s testimony that Julien thr ew a chair at the child and was arrested for assault ing her ; both Dalith ’ s and Gamboa ’ s testimony tha t the child came home fr om Julien ’ s visita tions with unexplained brui ses ; and the fact that Julien lived in an Airb nb where other people were present

. However, Dali th negle cts to me n tion that Cheever testified about at leas t ten reports made to CPS

— either by Dalith and Gamboa or by other agencies to whom th ey had made a lle gations of abuse by Julien

— and explain ed that CPS

argument and, b ecause we affirm the court’s conservatorship decision, we thus will not reevaluate its decision that Julien should be allowed to d etermine L.C.R. ’ s pr imar y res iden c e.20 inv es tigated several and ruled them out and de termined that oth e rs d id not rise to the level of

wa rranting an investigation. Further, Julien testified that he had not committed assault, h ad not engaged in any sexually inapp ropriate behavior, and ha d not n eglected or harmed the child , while
L.C.R. had required abscess surgery after Dalith ’ s visitation period

. He also testified that he had moved out of the Ai rbnb and into his own residence, and there was no evidence that any of the other residents of the Ai rb nb had harmed L.C.R.
T o su s tain Dalith ’ s c hallenge would requ i re us to re

- evaluate the trial court ’ s

c redibility assessments and its decisions related t o the weight to be given to comp eting evi dence , and we decline to do so

. See Coleman , 109 S.W.3d at 1 11 ( “ The tria l court is in a better position to determine what w ill be in the best interest of the children since it faced the parties and their witnesses , observed their demeanor, and h ad the opportunity to evaluate the claims made by each parent. ” ) ; Ec hols , 85 S.W.3d at 477 ( “ The trial court is in the best position t o observe the demeanor and per sonalities of the witnesses and can ‘ feel ’ the forces, pow ers, and influences that
cannot be discerned by merely reading the record. ” )

. On this record, we cann ot hold that the trial court abused its d iscre tion in evaluating t he evidence in light of the relevant factors

. See, e.g. , Supakorndej , 2021 WL 8186 2, at * 3 ( affirming trial court ’ s dec ision to give mother rights to determine child ’ s primary residence and make education decisions because trial court , which must evaluat e witness credibility and res olve evidentiary conflicts, “ heard testimony from both parti es that they had difficulties in communicating and making decisions, es pecially regarding their reside nce and where A.S. would a ttend school ” ); John son v. Johnson , No. 03

- 19

- 00196

- CV, 2020 WL 4726589, at *1 1

– 12 (Tex. App.

— Austin Aug. 13, 2020 , no pet. ) (m em. op. ) ( affirming trial court ’ s decision award ing husband right to determine children ’ s primary reside nce after parents produced contradi cting witn ess testim ony abo ut behavior and respe ctive parenting and21 explaining that “ we will not reevaluate the cr edibility of the witnesses or t h e weight to be given the evidence, ” and “ our review is limited to ensuring that some evi dence o f a substantive and proba tive character exis t s to support the trial court ’ s decision ” ) ; Coleman , 109 S.W.3d at 1 11 ( observing tha t trial court “ obviously did not find that the testimony regarding the parties ’ sexual activities amounted to a history or pattern of physica l or sexual abuse by ” husband, and because it “ obviousl y did n ot find the tes timony to be credible evidence of a hi story of sexual abuse, it

was no t bound by section 153.004(b) ” )

. We overru le Dalith ’ s challenges to the trial court ’ s decisions to appoint b oth parents as joint managing c onservato rs and to aw ard Julien the right to determin e L.C.R. ’ s primary residence.

C ONCLUSION Having overruled Dal ith ’ s appellate issues, we affirm the trial court ’ s divorce decree.

________________________________________ __ Dar lene Byrne , Chief Justice Before Ch ief Justice Byrne, Justices Ke lly and Smith Affirmed Filed: Septe m ber 20 , 2022