AFFIRMED and Opinion Filed December 14, 2022 

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In The 

### Court of Appeals Fifth District of Texas at Dallas No. 05-22-00634-CV IN THE INTEREST OF V.W. JR., A CHILD On Appeal from the 196th Judicial District Court Hunt County, Texas Trial Court Cause No. 90770 MEMORANDUM OPINION Before Justices Molberg, Reichek, and Garcia Opinion by Justice Reichek In this suit affecting the parent-child relationship, Mother appeals the trial court’s final order appointing her sister a nd brother-in-law (“Aunt” and “Uncle”) as managing conservators of her child, V.W ., Jr. Mother asse rts a single issue contending the evidence was legally and fact ually insufficient to support the jury’s finding that appointment of Mother as sole managing conservator would significantly impair V.W., Jr’s physical h ealth or emotional development. We affirm the trial court’s order.–2– Background Mother is the biological mother of fo ur children: V.W., a girl, V.W., Jr., a boy, N.W., a boy, and L.M., a girl. At the time of tria l, V.W was se venteen years old, V.W., Jr. was fourteen, N.W. was elev en, and L.M. was seve n. In September 2020, the Department of Family and Protec tive Services (the “Department”) filed a petition for protection of all four children s eeking conservatorship or, alternatively, termination of Mother’s pare ntal rights. During the course of proceedings, the case pertaining to V.W., Jr. was severed and tried se parately from the suit involving his siblings. This appeal addresses only th e order of conservatorship of V.W., Jr. The Department’s involvement with Mother began in July 2020, when it received a report that L.M., who was five y ears old at the time, had tested positive for herpes. Mother and the children were sent to the Children’s Advocacy Center where forensic interviews of the child ren were conducted. Mother met with Cassandra Marino, a Depa rtment investigator. Marino questioned Mother about her rela tionships. Mother stated there had been domestic violence in he r relationship with Father. 1 Aunt confirmed this at trial, stating that Mother’s relationship with Father was abusive. Aunt testified that when she spoke with Mother on the phone, she c ould hear Mother and Father fighting and cursing at one another. Aunt further testified that Mother told her Father hit her and

1 Father is the biological father of the three oldestchildren. Mother became pregnant with L.M. during a trip to Louisiana.–3– she saw Mother with bruises and scratches following an a ltercation with Father. At that time, Mother had only two children and Aunt attempted to move Mother and the children to her house to get them away from Father. After Aunt packed their things and took them to her house, Mother returned to Father the same evening. Aunt stated that, after this, Mother w ould no longer discuss any physical abuse she suffered because she did not want to le ave Father. Father was eventually incarcerated on unrelated charges. By July 2020, Mother was living with another man, Todd Chisolm. Aunt testified Mother brought Chisolm to her house in 2019 and introduced him as her boyfriend. Mother told Aunt she met Chisol m at a store and he was homeless. After taking Chisolm to a shelter a few times, Mo ther let Chisolm move in with her. Mother told her Chisolm had been in pris on, but she did not know why. Aunt was concerned that Mother knew so little about Chisolm, and that she would be leaving the children alone with hi m while she was at work. When Marino questioned Mother about Chisolm, Mother stated she had no concerns that Chisolm had sexually assaulte d L.M. When Mother was told that L.M. made allegations against Chisolm in her fo rensic interview, she continued to deny that any abuse by him had occurred. Marino also discussed allegations with Mother that her older daughter, V.W, had been sexua lly abused. Marino stated that, when V.W. was twelve years old, she was involve d in a sexual relationship with an older–4– boy. Mother told Marino she allowed the relationship between V.W. and the boy to continue because the sex was consensual. The children were removed from Mother’s home that day. Mother continued to live with Chisolm for several more w eeks until he physically attacked her by choking her, beating her head against a wa ll, and slashing her face with a knife. After that, Mother moved to a shelter. Following a hearing, Mother was ordere d to perform a variety of services, including a parenting program addre ssing sexual abuse, a domestic violence program, and family counselin g. Mother was able to m ove back into an apartment and complete most of the programs with in a few months. Mother’s progress was sufficient that the Department began allowing some of the children to return to living with her. By the end of August 2021, three of the children, V.W., N.W., and L.M. were placed with Mother while being mon itored by the Department. V.W., Jr. lived with Aunt and Uncle. The Department remained concerne d about permanently returning the children to Mother, given that Mother would still occasionally deny that Chisolm sexually abused L.M. and freque ntly failed to cooperate w ith Department members. Mother continued to deny that Chisolm abused L.M. even though Mother knew Chisolm had herpes and she had also contr acted herpes from him. After the third child was placed in Mother’s home, the situation began to deteriorate.–5– Denica Diaz, a conservatorship caseworke r for the Department, testified that when she confronted Mother about issues involving the children, Mother would become extremely angry and, at times, a ggressive. Katrina Luallen, the court appointed special advocate for the children, testified that, in her interactions with Mother, Mother would yell, scream, and curs e at her. Mother would also either avoid answering questions or give answers th at were evasive. Luallen stated she had consistent difficulty scheduling visits and Mother would frequently not show up. On one occasion, Luallen knocked on Mother’s do or for ten to fifteen minutes because she saw Mother’s car parked in front of the apartment building. When Mother did not answer, Luallen called Diaz and the po lice. After the police arrived, they continued banging on the door in an attempt to get Mother to answer. Mother later said she heard them, but they did not give her time to get to the door. When Luallen told her they were knocking on the door for forty-five minutes, Mother responded that she refused to open the door becau se they were being disrespectful. On another occasion, Luallen went to Mother’s apartment and waited outside for her to come home. When Mother pu lled up in her car, a man got out of the passenger’s side, removed a duffle bag from the trunk, and went into the apartment with Mother. Luallen later questioned Mother about what she saw and Mother denied that it happened sayi ng there was “no man.” During that same time, Diaz wa s having problems conducting home visitations. She stated Mother would not le t her into certain areas of the house. At–6– one point, Mother would not let her look in the primary bedroom closet. When Diaz told her she needed to see behind every door, Mother opened the closet door a few inches and flicked the light on and off sayi ng “See, see, it’s just stuff. Can’t you see?” Mother had never prevented Diaz fromlooking in the closet before, and Diaz stated the closet was large enough to hold a person. When Diaz arrived for another visit, she saw the apartment lights go off and no one answered the door. Because of Mother’s conduct, the De partment determin ed it was no longer willing to work with her towards perman ent reunification with the children. Although the Department decided it would not seek to terminate Mother’s rights as a parent, it requested that she be named on ly a possessory conservator. In the case of V.W., Jr., the Department requested that Aunt and Uncle be named managing

conservators. V.W., Jr. testified at trial. He stated it was his wish to continue to live with Aunt and Uncle. According to V.W., Jr., living with Mother made him feel worried and stressed because he neve r knew what was going to happe n next. He testified he heard Chisolm verbally abus e Mother on a regular basis and he worried he would have to step in to protect her. When he was living with Mother , he avoided being at home and would go to a friend’s house or an after school program. V.W., Jr. characterized Aunt and Uncle as very supportive, kind, l oving, and responsive to his needs. They helped him w ith his school work, went to his basketball games, gave him a savings account, and taught him to ma nage money. V.W., Jr. said he thought–7– Aunt and Uncle were preparing him for the fu ture and Uncle was a great role model. V.W., Jr. wished to continue his relations hip with Mother through visits. Because, Mother moved to an apartment only a few blocks away from Aunt and Uncle, he stated he would be able to see her frequently. Aunt testified that when V.W., Jr. firs t came to live with them he was small for his age and withdrawn. He told her he “wasn’t used to eating a lot” and had to share food with his siblings. Aunt said she encouraged him to eat more and cooked his favorite meals. After a while, V.W., Jr . “hit a growth spurt” and began “eating everything.” Aunt stated that, at first, V.W., Jr . would “shut down” when asked about family issues. After he ha d an unsupervised visit with Mother, V.W., Jr. became angry and disrespectful. Aunt noted that V.W., Jr. was only disrespectful to her, and she was concerned that this was because he had seen how men treated Mother. It was later determined that V.W., Jr. had left Mother’s apar tment to stay with a friend during the visit. After they took V.W., Jr. to counselling, Aunt stated he was able to open up and “wasn’t struggling with what [he] should say anymore” about his family. Luallen testified that, since liv ing with Aunt and Uncle, V.W., Jr. had become much more open and expressive. Following the unsupervised visit with V.W., Jr., Mother brought her three other children to Aunt’s house to discuss th ings. Aunt stated Mother became upset and started cursing and yelling in front of the children. Aunt asked Mother to leave–8– and Mother screamed and cursed till she left the house. The children remained with Aunt, unsure of what to do. Aunt said this was not the first time that this type of outburst had occurred. According to Aunt, Mo ther had previously gone so far as to threaten to kill herself in front of the children. Aunt was concerned that if Mother wa s given custody of V.W., Jr., he would be living in an unstable environment. Aunt stated she had not seen any positive improvement in Mother during the pendenc y of the case. Because Mother was generally unresponsive to offers of help , and combative when confronted about problems, Aunt was afraid she would not be able to help V.W., Jr. if he went back to Mother. Diaz also opined that Mother had not shown any positive improvement since the children were removed. Although Mother completed many of the court ordered services, Diaz did not observe any behavior al changes. Even after finishing the sexual assault program, Mothercontinued to deny that L.M. was sexually assaulted. Diaz stated Mother never took personal responsibility for the things that had occurred, and she continued to blame othe rs or external circumstances for her problems. Luallen stated that Mother shuts down when things are difficult and feels no sense of urgency to meet the children’s needs. During the pe ndency of the case Mother and the children moved from Hunt County to Denton County and, despite repeated requests by the Department, Mother had not taken L.M. to counselling since–9– the move. Luallen also told Mother th ere was a concern raised by the maternal grandmother that L.M. was watching po rnography on electronic devices. Mother denied it was an issue. Because of Mother ’s apparent unwillingne ss to address issues or change her behavior, Lua llen was concerned V.W., Jr. w ould learn to repeat those behaviors, and that he w ould be exposed to people w ho would pose a danger to his physical or emotional development. Mother was called as a witness at trial. She testified in person on the first day of trial, and testified via Zoom on the sec ond day. Mother left part way through her questioning on the first day because she ha d not made arrangements for child care. On the second day, Mother became upset w ithin the first few minutes of questioning and, after an outburst includi ng profanities, disconnected from the proceeding. Trial continued for several more days, but Moth er never returned. Upon motion made by the Department, Mother’s te stimony was struck and the jury was instructed not to consider it. After hearing the evidence, the jury re turned a verdict naming Aunt and Uncle as V.W., Jr.’s managing conservators. Mother was named as a possessory

conservator. 2 Mother timely brought this appeal.

2 Father was also named a possessory conservator. He has not appealed the trial court’s order.–10– Analysis A jury’s verdict regarding conservato rship is binding on the trial court and entitled to substantial de ference on appeal. T EX

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. C ODE ANN . § 105.002(c); Danet v. Bahn , 436 S.W.3d 793, 796 (Tex. 2014). In reviewing the jury’s verdict, we apply the ordinary evidentiary revi ew for legal and factual sufficiency. Danet , 436 S.W.3d at 796. Evidence is legally insu fficient if the record shows: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact. Id . at 797. Evidence is factually insufficient if it is so agains t the great weight a nd preponderance of the evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates bias. In re C.H. , 89 S.W.3d 17, 25 (Tex. 2002); Pool v. Ford Motor Co , 715 S.W.2d 629, 635 (Tex. 1986). Where no party objectedto the jury instructions given, we review the sufficiency of the eviden ce in light of those instructions. Danet , 436 S.W.3d at 796. The court’s charge in this case incl uded the following relevant instructions: The best interest of the child shall always be the primary consideration in determini ng questions of managing conservatorship and questions of possession and access to a child. Some factors to consider in determining the best interest of the children are: 1. The desires of the children.–11– 2. The emotional and physi cal needs of the children now and in the future. 3. Any emotional and physical danger to the children now and in the future. 4. The parenting ability of the individuals seeking custody. 5. The programs available to assist those individuals to promote the best interest of the children. 6. The plans for the children by those individuals or by the agency seeking custody. 7. The stability of the home or proposed placement. 8. The acts or omissions of the parent that may indicate that the existing parent-child relationship is not a proper one. 9. Any excuse for the acts or omissions of the parents.

. . . A parent shall be appoi nted permanent managing conservator, in preference to th e Texas Department of Family and Protective Services or a fam ily relative, unless appointment of a parent as managing conserva tor would not be in the best interest of the child because th e appointment would significantly impair the child’s physical health or emotional development. The burden of showing that the parent ’s appointment as managing conservator would result in significant impairment to th e child is borne by the non-parent seeking conservatorship. In re F.E.N. , 579 S.W.3d 74, 77 (Tex. 2019). Such proof should include the acts and omissions of the parent demonstrati ng that result. Id . Conduct by the parent occurring in the years immediatel y before trial, together with evidence of the child’s bond with th e caretaker with whom they were placed due to the parent’s conduct, may constitu te some evidence to support a finding of significant–12– impairment to the child’s physical health or emotional development if the child were returned to the parent’s custody. Danet , 436 S.W.3d 797–78; In re S.T. , 508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.). Although evidence of past misconduct, standing alone, ma y not be sufficient to show the present unfitness of a parent to be managing cons ervator, a factfinder may infer present unfitness from the parent’s recent, deliberate misconduct. In re A.V. , No.05-20-00966-CV, 2022 WL 2763355, at *6 (Tex. App.—Dallas July15, 2022, no pet.) (mem. op.). Considerations when deciding conservators hip include, among other things, parental irresponsibility, bad judgment, child aba ndonment, and an unstable, disorganized, and chaotic lifestyle that has put, and w ill continue to put, the child at risk. In re S.T. , 508 S.W.3d at 492. The parent’s treat ment of other children may also be relevant. Id

. In her brief on appeal, Mother does not generally challenge the jury’s determination that naming Aunt and Uncle ma naging conservators of V.W., Jr. is in V.W., Jr.’s best interest. She asserts only that the evidence is legally and factually insufficient to show that naming her as managing conservator would significantly impair V.W., Jr.’s physical health or emotional developmen t. She argues “no evidence was produced by the Department e xplaining how any of [her] choices or conduct would contribute to significant impairment of the child’s emotional development were he to be placed in [her] custody.”–13– Contrary to Mother’s assertion, th e evidence produced by the Department showed that Mother’s choices and conductsubjected her children to an unstable, unsafe, and sometimes violent home environm ent. The evidence further showed that Mother did not prioritize her children’ s welfare and safety, and she gave no indication of a willingness to accept respons ibility for her choices or change her behavior. See In re D.W. , 445 S.W.3d 913, 932 (Tex. App.—Dallas 2014, pet. denied). Mother had a pattern of relationships with abusive men and of exposing the children to the abuse. She refused to leave the man who sexually abused her daughter until he physically attacked her. V.W ., Jr. stated he felt stressed living with Mother because he never knew what was goi ng to happen and he worried he would have to protect her. At a time when the Department wa s monitoring Mother’s ability to provide the children with a safe envir onment, Mother again brought an outside party into the home and lied to the Department about it. Because of Mother’s refusal to accept responsibility for actions that endangered the children, or acknowledge the resulting injuries to the children, the jury could reasonably conc lude her pattern of bringing abusive or unstable peopl e into the home would continue. Mother did not provide V.W., Jr. with good role models, and was not a good role model herself. Throughout th e pendency of the case, Mother was uncooperative, unresponsive to counselling, secr etive, and prone to angry outbursts. Aunt testified that, after spending time wi th Mother, V.W., Jr. would be withdrawn–14– and behave disrespectfully to wards her. In contrast, th e evidence showed that after living with Aunt and Uncle for two years, V.W., Jr. showed significant growth both physically and emotionally. It was V.W., Jr .’s wish to remain living with Aunt and Uncle and he stated they were mo re responsive to his needs. Finally, the evidence showed Mother failed to protect her children. She allowed her oldest daughter to engage in a sexual relations hip at the age of twelve. She later refused to believe her younger daughter was sexually abused even after she was informed of her daughter’s outcry a nd presented with proof that she had contracted a sexually transmitted disease. Mother refused to address issues regarding the children’s welfare and resisted the Department’s efforts to ensure their home environment was safe a nd appropriate. Safety, security, and stability are critical to a child’s development. In re R.T.K. , 324 S.W.3d 896, 903 (Tex. App.— Houston [14th Dist.] 2010, pet. denied). We conclude the evid ence was both legally and factually sufficient to support the jury’s finding that appointment of Mother as managing conservator would significantly im pair V.W., Jr.’s physical health or emotional development. We overrule Mother’s sole issue a nd affirm the trial court’s order.

220634F.P05 /Amanda L. Reichek / AMANDA L. REICHEK JUSTICE–15– 

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Court of Appeals Fifth District of Texas at Dallas JUDGMENT
IN THE INTEREST OF V.W., JR., A CHILD

No. 05-22-00634-CV On Appeal from the 196th Judicial District Court, Hunt County, Texas Trial Court Cause No. 90770. Opinion delivered by Justice Reichek. Justices Molberg and Garcia participating. In accordance with this Court’s opinion of this date, the order of the trial court is AFFIRMED

. Judgment entered December 14, 2022