### NUMBER 13 - 15 - 00242 - CV 

## COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI

– EDINBURG

IN THE INTEREST OF J.S., J.S., AND BABY BOY P., CHILDREN
On appeal from the County Court at Law No. 5

of Nueces County, Texas

.


## ORDER
Before Chief Justice Valdez and Justices Rodriguez and Benavides Order Per Curiam
This case involves the trial court’s appointment of N.R., a non

- parent, as permanent managing conservator of appellant J.P.’s children, J.S., J.S., an d Baby Boy P., and the trial court’s order regarding visitation rights , if any, for J.P. 1 By her sole issue ,

1 We wi ll refer to appellant as J.P . and her child ren as J.S., J.S., and Baby Boy P

. See T EX

. F AM

. C ODE A NN

. § 109.00 2(d) (West, Westlaw through 2015 R .S.) (“On the motion of the parties or on the court's own motion, the appellate court in its opinion may iden tify the parties by fictitious nam es or by their initials only.”); see also T EX

. R. A PP

. P. 9.8(b) (providing that in a parental

- rights termination case, “the court must, in its opinion, use an alias to refer to a minor, and if necessary to protect the min or's identity, to the minor's p arent or other family member”).
We also note that t he parties refer to N.R. as “grandma” and as “fictive kin.” The trial court ordered “Permanent Managing Conservatorship of all children to current fictive kin placement, [N .R.].”2

J.P. contends that the trial court abused its discretion in ordering that visitation with the
children be “at the discretion of the managing conservator” and by failing to set the specific
terms and conditions o f her possession and access to the children. We abate and remand
this matter to the trial court.
I. B ACKGROUND On April 14, 2014, appellee the Department of Family and Protect ive Services (the Department) filed a petition for conservatorship and termination of the parent

- child relationship between J.P., the respective fa thers, and the children . Ten days later, the trial court named the Department temporary managing conservator of the three children. The children were placed with N.R., and according to the ad litem for the children and counsel for the Depar tment, the placement was “great ” and “safe ” and the children did not “want to go back to mom.” The Department repeatedly ad vised the trial court that it was seeking to terminate
the parental rights of J.P. and was oppos ed to an arrangement where N.R. would be given permanent managing conservatorship without termination of parental rights. The Department expre ssed concern that J.P. would continue to cause problems for the children’s placement and requested that if the trial court did not terminate parental rights,
that visits f or J.P. be at N.R.’s discretion because it would put N.R. in “a position where
she kn ows going forward that the children will always be safe because she has full legal authority to make those decisions.” On April 27, 2015, J.P., however, filed a motion with the trial court requesting standard visitation with the children. Following a Apri l 29, 2015 review hearing where the Department reiterated its position that it was seeking to terminate all parental rights to the children, the following exchange occurred:3

The Trial Court: Do you oppose me granting

— does any party other

than the D epartment oppose me granting [ permanent m anaging conservatorship] to the p lacement [N.R.] today?

. . . . J.P.’s Counsel: No, Your Honor. Attorney ad litem : No, as long as it’s sole managing conservatorship with

complete discretion.

. . . . The Trial Court: Well, that’s what I’m

— you’re opposed to it? The Department: Absolutely, your Honor . I’m opposed to it, but if the

Court does grant [ permanent m anaging conservatorship] , we’d ask that visitation be fully at placement’s discretion. Parents have to understand that they can’t have visits with these children unless they can work out something amicable with gr andma, and if they can prove that those visit s will be safe and the children won’t be afraid

— if t he children don’t want to visit parents, they’re not going to visit parents.
The Trial Court: And this is the thing

— I say this a lot

— it’s a lot easier to

get bees with honey, and maybe that will be good for them because they’ll be in a situation where they’ll have to be nice. I mean, t hat’s how things get worked out. After explaining that it would take the case under advisement, the trial court asked if there was “[a] nything else anybody has to add?” Only the Department’ s counsel answered,
“No.” On Apr il 30, 2015, the trial court ad vised the parties of its ruling , via email, which provided in relevant part: “ Based on no objections by respondents, Permanent Managing Conservatorship of all children to current fictive kin placement N.R. All visitation at her
discretion.

. . . That is the Order of t he court

. . . .” O n June 19, 2015, the trial court signed its “ Final Order in Suit Affecting the Parent

- Child Relationship .” It found “that4

appointment of a parent or both parents as managing conservator would not be in the best interest of the [children] because the appointment would significantly impair the child’s physical health or emotional development.” A t section 7.1 of the final order , t he trial court repeated th e language quoted above and ordered the appointment of N.R. as permanent managing conservator of t he children and limited visitation to her discretion

. II. A BATEMENT Now, on appeal, J.P. states that “[t]he order entered by the trial court grants [her] visitation with the children at the discretion of the permanent managing conservator , ” an d
she complains of that restriction. Yet J.P. appears to complain that the trial court did not appoint her possessory conservator of the children or that it limited her possession in such a way, without making certain findings, as to be a non

- appointment

. See T EX

. F AM

. C ODE A NN

. §§ 153.191, 153.193 (West, Westlaw through 2015 R.S.). W e also note that
while the order does not specifically appoint J.P. a p ossessory conservator, the limited discretionary visitation languag e appears to be a restriction on such possession or

access. Accordingly, we ABATE the appeal and REMAND the cause to the trial court for
cla rification. 2 Upon remand, the trial court shall address whether it intended its June 19
final order to appoint J.P. possessory conservator of the children and whether it intended
the referenced restriction to apply to such possession

. See Hopkins v. Hopkins , 853 S.W.2d 134, 137

– 38 (Tex. App.

— Corpus Christi 1993, no pet.); see also In re Marriage
of Collier , 419 S.W. 3d 390, (Tex. App.

— Amarillo 2011 , no pet.) ; In re Walters , 39 S.W.3d 280, 286

– 87 (Tex . App.

— Texarkana 2001, no pet.)

. The trial court sha ll cause its finding s

2 Because we have abated the appeal, the origina l submission date of December 14 , 2015 has been withdrawn.5

and recommendations regarding J.P.’s possessory conservatorship and any restrictions on that conservatorship to be included in a supplemental clerk ’ s record. Furthermore, the
trial court shal l cause a supplemental reporter’ s record of any proceedings to be pr epared. The supplemental clerk’ s r ecord and supplemental reporter’ s record, if any, shall be filed with the Clerk of this Court on or before the expiration of thirty days from the date of this
order. Th e appeal will be reinstat ed upon receipt of the foregoing materials and upon
further order of this Court.

PER CURIAM

D elivered and filed the 15th day of December , 201 5

.