### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-10-00604- CV

Robert a “Robbie” Bosw orth, Appellant

v. Am anda B osw orth, Appellee

F ROM TH E CO UNTY COURT AT LAW NO . 4 O F WI LLIAM SO N COUNTY NO. 10- 0405 -CP 4, H ONO RAB LE JO HN MCM ASTER, JUDGE P RESIDING

M E M O R A N D U M O P I N I O N

Roberta “Robbie” Boswor th appeal s t he order dismiss ing her application for temporar y g uardia nship of her adult daug hter, Amanda Boswor th. Appellant cont ends that the dismiss al is not supported by evidenc e and is an abuse of discretion. Finding no abuse of discretion in the trial court’ s ruling, w e will aff irm the dismissal of the g uardia nship application. Appellant sou gh t t o b e appointed the g uardia n of her 27-y ear -old daug hter, Amanda, a fter A manda lef t her g randmother ’s home in Fr isco, Texas, and trave led to Austin with Wil liam Bla ir to marry him. The couple moved in with Bla ir’s g randpa rents. Appellant asser

ted that her daug hter was abducte d by Bla ir and was in imminent dang er, asser t i n g t h at Amanda has the mental functioning l evel of a seven- or eig ht-y ear -old child and cannot car e for herse lf or m anag e her financ ial aff

airs. Appellant alleg ed that Bla ir took Amanda’ s persona l identification documentsplanning to become the repr esenta tive pay ee of Amanda’ s Social Security , disability , and Hea lth and

Communi ty -B ased Ser

vices prog ram pa

y ments. The county court at l aw held a hear ing on appellant’ s application for temporar y guardia nship at which appellant, her mother, her son (Amanda ’s brother) , and a witn es s wh o had provided t ra i n ing service s to Amanda testified in appellant’ s favor

. Amanda also testified and reque sted that the court not appoint a g uardia n. She provided a doctor’s repor t in support of her competenc e. At the end of the hear ing, the trial court dismiss ed appellant’ s applicat i o n t o be appointed g uardia

n, concluding that appellant ha d not satisfied the re quirements of Te x as Probate Code section 875.

The p ro b ate code direc ts a court to appoint a temporar y g uardia n if the “cour

t is prese nted with substantial evidenc e that a person may be a minor or other incapa citated person, and the court has probable cause to believe that the person or person ’s estate, or both, require s the immediate appointment of a g uardia n . . . .” Tex. Prob. Code Ann. § 875(a) (West Supp. 2012). The
court must hold a hear ing to deter mine whether “the applicant has established that there is substantial evidenc e that the person is a minor or other incapa citated person, that there is imminent dang er that the phy sical health or safety of t he respondent wil l be seriously impaired, or that the respondent’s
estate will be seriously damag ed or dissipated unless immediate action is taken

. . . .” Id. § 875(g ).

We revie w the court’s decision on whether to appoint a temporar y g uardia n for

an abuse of discretion. See Saldarriaga v. Saldarriaga , 121 S.W .3d 493, 497 (Tex. App.—Austin 2003, no pet.); see also Trimble v. Texas Dep’ t of Prot. & Regulatory Servs. , 981 S.W .2d 211, 214 (Tex. App.—Houston [14t h Dist.] 1998, no pet.). A trial court abuses its discretion when it acts in

2an unrea sonable and arbitra ry manner, or without ref ere nce to any g uiding rules or principles. Downer v. Aquamarine Operators, Inc. , 701 S.W .2d 238, 241-42 (Tex. 1985). We cannot substitut e

our judgme nt for t h e t rial court’s rea sonable judgme nt even if we would have rea ched a contra ry conclusion. See W

alker v. Pack

er , 827 S.W .2d 833, 839-40 (Tex. 1992). An abuse of d i s cre tion does not exis t wher e the trial court bases its decisions on co n fl i ct i ng evidenc e. Davis v. Huey , 571 S.W .2d 859, 862 (Tex. 1978) (cited in In re Guardianship of Erickson , 208 S.W .3d 737, 743 (Tex. App.—Texarkana

2006, no pet.)). At the hear ing befor e the trial court, appellant and her witnesses testified uniformly that, in the ir opinion, Amanda’ s diminis hed mental capa city put her in dang er. They testified that,
at best, Amanda had the mental and em o t i o n al capa city of an eig ht-y ear -old child and that her capa city diminis hed under stress. They testified that she could not ha ndle her basic needs for food and shelter, could not consistently take necessa ry medications, an d could not discern when she or others neede d emer g ency service s. They testified that she was g ullible, impulsi ve, and subject to manipulation. They testified that she did not understand basic human phy siology and sexualit y , did
not understand love and marria g e bey ond story book -s t y l e fantasy , and had previously eng ag ed in i n ap propriate interac tions with strang ers on the internet—one of which led to her being s ex u al l y assaulted. They further testified that Amanda bare ly knew Bla ir, had not dated him, and had never spoken of him as a boy friend, much less as a potential husband. Appellant’s witnesses testified that Amanda was in imminent dang er beca use she did not know Bla ir and his family , would not be able
to te ll if she wa s being mistreated, and could not se ek help if she was being mistreated. Appellant

was conce rned that Bla ir an d his g randpa rents did not fully understand Amanda’ s needs and

3could not provide a sufficie ntly safe environment for her. Appellant also rela ted an interac tion with

Bla ir’s family that she said illust rate d the m anipulation of her daug hter. She c ame down to spe ak with Amanda shortly afte r her depar tu re an d discussed returning to North Texas to collect some belong ings. Appellant testified that Bla ir’s g randmother overhe ard and said, “Willi am, tell Amanda g ood-by e, y ou will never see her ag ain, she’ll be g one, her m o t h er wi l l have locked her up in her
room, y ou’ll never see her.” Appe l l ant testified that Bla ir’s g randmother ’s statement dissuaded Amanda from returning even briefly to her previous home. Appellant offe red medical repor ts supporting he r view of

Amanda’ s limi ted ca

pacity

. Aman d a t estified and prese nted evidenc e in opposition to the cre ation of a g uardia nship. She stated plainly , “I am not in dang er.” She testified that she prompted her depar ture from her g randmother ’s ho u s e b y ca l l i n g Bla ir to come and g et her. She said she had known Bla ir for five y ear s and that she told her mother that Bla ir proposed a month befor e she left with him. Sh e s ai d that her mother and gra ndmother were not happy at t his prospec t and tol d her she would lose all of her benef

its. She stated that she had marrie d Bla ir and wished to r emain with him. She testif i ed t h at s h e had a driver’ s license but did not drive near her new home beca use she was not familiar with the roads. She testified that she had called her lawy er sever al times in prepa ration for the hear ing. She demonstrated in court the ability to dial 911 in case of an em er gen cy . She introduced a medical repor t reg arding the need for a g uardia nsh i p fr o m a doctor in Wil liamson County who, afte r examining Amanda, decla red that she h as “n o d isability .” She met with an 1

Amanda testified that she met with two doctors, but produce d only one repor t. Appellant 1 asser ts tha t “it is rea sonable to assume that only one doctor was willing to pr ovide a doctor’s letter suitable to Amanda’ s cause .” 4Offic er Har ring ton from a “Crisis I nterve ntion Tea m” who pr e s e n te d h e r w ith an opportunity to leave her arr ang ement with Bla ir, which she declined to take. She testified, “Ye s, I do love [m y mother]. 2 But I don’t want he r to have a g uardia nship ove r me. I would like to be on my own and I

will call her. . . . I want to stay

here .” I n ruling that appellant did not meet her burden to justify cre ati n g a gu ar dianship under the probate code, the trial co u rt d i d not specify a particula r element of section 875 that appellant failed to prove. Appellant prese nted testimony from witnesses and documentar y evidenc e f r o m d o c to rs reg arding Amanda’ s diminis hed capa city , which Amanda counter ed with her test im o ny and a doctor’s cer

tification that s h e h ad n o disability

. Appellant and her witnesses testified that Amanda’ s capa city put her in dang er—pa rticularly when surrounde d by unfamiliar people like Bla ir and his g randpa

rents in an unfamiliar city

. Appellant testified that she felt that Amanda’ s financ es

we re at risk beca

use Bla ir and his g randpa rents had acc ess to her identification documents and financ ial a c c o u

n ts

. B u t th e r e w a s n o e v idence —bey ond specula tion—that Bla ir and his g randpa rents had ill motives or could not meet Amanda’ s needs and compensa te for any lack of capa city

. L ikewise, there wa s no evidenc e that the t aking of t he identification and financial documents was any thing other than nece ssary to ensure that Amanda had documents neede d to marry and acc ess her financ ial resour ces for her benef it. Amanda testified that she was not in dang er, had demonstrated the ability to use the telephone on her own, and had been prese nted with opportunities to leave Bla ir’s home and chose t o s t ay . Whil e the evidenc e may seem close to meeting the standard

Offic er Harr ington was repor tedly in the hallway

outside the courtroom and available to 2 testify , but the trial court opted not to hea r his testimony

. 5from our revie w of the paper rec ord, the trial court held a hear ing and h ad o p p o rt u n ity to see the

witnesses and g aug e their cre dibilit y first-hand. Ba sed on the rec ord befor e us, we cannot say that
t h e trial court abused its discretion by concluding that appellant failed to prove the nece ss ar y elements to support her

temporar y g uardia nship application. We affir m.

J eff Rose, J ustice Be fore J ustices Pury ear , Rose and Goodwin Affir med Filed: January

16, 2013

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