### 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. 03-12-00670- CV

J. C., Appellant

v. Texas Depart m ent of Fam ily and P rote ctive Service s, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -F M- 11- 0044 98, H ONO RAB LE P AUL DAVIS, JUDGE P RESIDING

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

J .C. appea ls the trial court’s final decr ee appointing appellee the Texas Depa rtment of Fa mily and Protective Service s as the non-par ent sole manag ing conser vator of his children, K.C. and J .C., J r., following a jury trial. The Depa rtment soug ht to terminate J .C.’s pare ntal rig hts to his 1 children and, in the alternative, to be appointed the manag ing conser vator. The jury made finding s in favor of the Depa

rtment as to the statutory g rounds for termination and found that the Depa rtment should be appointed the children’ s manag ing conser vator but also found that it was not in th e children’ s best interest for J .C.’s pare ntal rig hts to be terminated. In its fina l de cre e, the trial court rende red judgme nt on the jury ’s verdic t, a p p o in ti n g th e Depa

rtment as the sole manag ing conser vator but not terminating J .C.’s pare ntal rig hts. See Tex. Fam. Code Ann. §§ 161.001 (West Supp. 2012),

W e use initials to ref

er to appellant and his children. See Tex. Fam. Code Ann. 1 § 109.002(d) ( West S upp. 2012); Tex. R. App. P . 9.8.263.4 0 4 (W es t 2008). The trial court also found that the appointment of J .C. as possessory

conser vator was n o t i n the children’ s best interest “at this time” and that pare ntal possession or

acc ess “at this time” would endang er the children’ s phy sical or emotional welfa re. See id

. § 153.191 (West 2008). On appea l, J .C. challeng es the finding s by the jury and the trial court that wer e in favor of the De partment. F or the re asons that follow, we aff irm the trial cour

t’s final dec ree . 2

BACK GR OUND J .C. was born in 1988. He was in foster car e from ag e 13 to 18

. W h i l e h e wa s in foster care , he met the children’s mot her, and they beca me romantically involved. They had their first child, K.C., in Dec ember 2007, and their second child, J .C., Jr., in J anuar y 2009. J .C. and the mother ende d their re lationship when J .C., J r., wa s approximately four months old. Around the time that J .C.’s relationship with the mother ended, she was arr ested for

as s au l t i n g her roommate. After the arrest, J .C. car ed for the children until J une 4, 2010, when he

was arr ested for assault family violence and criminal mischief during an alterc ation with the mother. J .C. pleade d no contest to the offe nses and rema ined in jail for approx i m at el y 1 5 d ay s. He had previously been convicted of burg lary of a habitation and place d on community supervision for five y ear s in Fe bruar

y 2007. After the J une 2010 incident, the State filed a motion t o re v o k e his community supervision and a war rant is s u ed fo r h is arr est. He was incar cer ated at the end of J une 2010, his community supervision was revoke d in August 2010, and he was sentenc ed to three y ear s’ imprisonment.

Altho ug h the decr ee is titled “F inal Dec ree of Termination,” J .C.’s pare ntal rig hts wer e 2 not terminated. 2Wit hin a fe w weeks of t he J une 4, 2010, incident, t he Department filed an original

petition se eking to te rminate pare ntal rig hts. The Depa rtment was appointed temporar y manag ing

conser vator of the children a

nd place d the childre n in foster care

. The c ase w as tried to the be nch in April 2011. J .C. rema ined incar cer ated, but he testified that he thought that he would be parole d

3 within a few m onths. A woman who kne w J .C. when he was in foster care throug h her work as a

case manag er for L ife Works testified that she was willing to car e for the children until J .C. was

rea dy for them. Following the trial, the trial court dismiss ed the Depa rtment’s petition ag ainst J .C. 4 The trial court found that the Depa rtment “did not prove by clea r and convincing evidenc e that [J .C.] committed any act under Texas Family Code section 161.001, et seq ., and that the termination of his rig hts to his t wo childre n . . . would not be in the best intere st of the subject c hildren.”

After the bench trial, J .C. place d the children with the case manag er from L ife Works. For the next few months, the case manag er took car e of the children, and one of J .C.’s friends helped her with the children during the day

. This friend took the children to visit J .C. in jail “twice a wee k” for “betwee n three and five wee ks.” The foster mot her who had taken car e of the children during the pende ncy

of the ter mination procee ding a lso stay ed in contac t w ith the children and kept them for ove rnig ht visit s.

Af t er a few months, the case manag er was no longe r willing to take car e o f t h e child re n an d returne d them to the Depa rtment’s car e. Shortly there afte r, the Depa rtment filed

The children’ s mother’s pare ntal rig hts wer e terminated by ag ree ment in an interlocutory 3 decr ee which was inc orporated into the final orde r and judg ment in the April 2011 proce eding

. The case manag er testified that L ife Works was a “nonprof it that helps y oung people who 4 are in foster c are .” 3another petition seeking to terminate J .C.’s pare ntal rig hts, was appointed temporar y manag ing

conser vator, and place d the children with t h e s am e fo s ter mother from the prior termination proce eding

. I n an amende d p et i t ion, the Depa rtment pleade d multipl e statutory g rounds for termination based upon appellant’ s conduct both befor e and afte r the initial termination proce eding

was dismiss ed. See Tex. Fam. Code Ann. §§ 161.001(1), 161.004 (West 2008) (s et t i n g forth circ umstances when a court may terminate pare ntal rig hts afte r denial of prior petition to terminate)

. The Depa rtment alternatively soug ht to be appointed the children’ s sole manag ing conser vator. See id . § 263.404. The jury trial occur red in J uly 2012. The Depa rtment’s witnesses included J .C., the

case manag er who had taken car e of the children afte r the first proce eding , Child Protective Service s (CPS) employ ees who wer e involved with J.C. and his c hildren, the children’ s thera pist, the foster mother, the court appointed specia l ad v o cate (CASA) volunteer, and office rs from the police depar tment. The Depa

rtment’s evidenc e showed that J .C. had a history of drug abuse, criminal conduc t , and family violence with the children’ s mother and that he was incar cer ated and not

s ch eduled to be rele ased until April 2013. In addition to evidenc e that J .C. abused drug s prior t o being incar cer ated, he admitted that he smoked marijuana in Ma rch 2012 during his inc arc eration. He also admitted to numerous alterc ations with the children’ s mother that led to fa m i l y v iolence. Although the evidenc e supported a finding that the mother wa s the instigator of these alterc ations, J .C. broke her

arm duringone of the m. T h e De p ar tment also prese nted evidenc e conce rning its car e and plans for the children. After the children wer e returne d to the Depa rtment’s car e in 2011, the children wer e place d

4with the foster mother who had taken car e of the children during the prior termination proce eding

.

The Depa rtment’s plan was for the foster mother to a dopt the children. The foster mother, as well

as others, testified about the childre n’s place ment with her. The evidenc e was undisputed that the children wer e bonded with the foster m other and doing well in her car e and that she hoped to adopt them. Wit nesses who testified on J .C.’s behalf wer e a long- time friend, other employ ees of L ife Works, J .C.’s friend who helped take car e of the children during the time that they wer e in the

case manag er’ s car e, and another friend who testified that she was willing to take car e of the children g oing forwa

rd. J .C. p re s ented evidenc e that showed that he was a hard worke r, motivated and capa ble of being a g ood fathe r, and loved and was bond ed with his children. J .C. completed his GED, was employ ed befor e his incar cer ation, and had a job offe r when he was rele ased from prison. J .C. also completed service s available to him for improving his pare nting skills during his incar cer ation and a drug treatment prog ram a round the time K.C. was born. He took steps to stay in contact with his children de spite being in prison, including se nding c ards a nd audiobooks. J .C. prese nted evidenc e about his plans for his children’ s car e. J .C. testified that he would be rea dy six months to one y ear afte r he was rele ased from prison. His plan for the children until then was for them to sta y with his friend who testified that she was willing to take car e of the children g oing forwa

rd. She was a nurse who lived in T yler, Texas, a nd had one child of her own. J .C. also had ex tended family in Tyler, Tex as. His friend submit ted a placement application with the Depa rtment in Dec ember 2011, asking for the children to be place d with her, but the home study

5had not been completed at the time of trial. She knew both J .C. and the children’ s mother when they

wer e in foster

car e, and she was a

potential place ment for a nother c hild of the mother. The trial court submi t t ed t h e ca se to the jury , and the jury made the following aff irmative finding s:

• After April 25, 2011, J .C. eng ag ed in conduct or knowingl y p l ac ed the children with a person who eng ag ed in conduct that endang ere d the phy sical or emotional we ll-being of the c hildren.

• After April 25, 2011, J .C. knowing ly p l ace d the children or knowing ly al l o we d the children to rema in in conditions or surrounding s which endang ere d the phy sical or e motional well-beingof the c hildren.

• The circ umstances of [t he children] or J .C. had “mater ially and substantially chang ed since April 25, 2011.”

• Be fore April 25, 2011, J .C. eng ag ed in con d uct or knowing ly place d the children with a person who eng ag ed in conduct that endang ere d the phy sical or emotional we ll-being of the c hildren.

• J .C. “knowing ly eng ag ed in criminal conduct that resulted in [J .C.] ’s conviction of a

n offe nse, and confine ment or imprisonment and inability to car e for the childre n . . . for not less than two year s from June 29, 2010.”

• The Depa

rtment should be appointed the sole manag ing conser vator of the childre n.

SeeTex. Fam. Code Ann. §§ 161.001( 1)(D) , (E), ( Q), .004. The jury , howeve r, found:

• I t was not in the children’ s b es t interest for J .C.’s pare ntal rig hts to be ter minated.

• Be fore April 2 5 , 2 011, J .C. did not knowing ly place the children or knowing ly allow the children to rema in in conditions or surrounding s which endang ere d the phy sical or e motional well-beingof the c hildren.

6See id . § 161.001(1)( D), (2)

. I n ac corda

nce with the jury ’s finding s, the trial court enter ed the final decr ee appointing the Depa

rtment sole manag ing conser vator. In the final decr ee, the trial court also found that “appointment of [J .C.] as possessory conser vator wa s not in the children’ s best interest at this time” and that “par ental possession or acc ess at this time would endang er the phy sical or emotional welfa re of the childre n.” This appe al followed.

ANALYSIS J .C. raises five issues on appea l. He contends that (i) his issues challeng ing the jury ’s finding s related t o the s tatutory g rounds for termination are not moot, (ii) t his Court should strike the jury ’s finding s rela

ting to g rounds for term i n at ion befor e April 25, 2011, as barr ed by

res judicata , (iii) the evidenc e was leg ally and fac tually insufficient to satisfy the elements of section 161.001(1)( Q) in the prior termination proce eding or in this case , (iv) this Court should reve rse the jury ’s finding s relating to g rounds for termination afte r April 25, 2011, based on the leg al and fac tual insufficienc y of t he evidence and di smiss the petition, and (v) this C ourt should reve rse the jury ’s appointment of t he Dep ar tment as t he sol e manag ing conservator based on the l eg al i nsufficie ncy of the e vidence and dismiss the petition or, in the alternative, r ender judgme nt and appoint J .C. as possessory

conser vator with visitation and acc ess to the childre n. Statutory Grounds For Termination

I n his second, third, and fourth issues, J .C. challeng es the jury ’s aff irmative finding s

as to the statutory g rounds for termination. See id

. § 161.001(1) (D), (E), (Q). The parties primarily

7join issue as to the proper interpre tation of section 161.004 and whether the jury proper ly considere d

evidenc e of J .C

. ’s ac t i o n s p ri or to the bench trial in April 2011 as g rounds for termination. See id . § 161.004. 5 I n his first issue, J .C. contends that his issues challeng ing the g rounds for termination “ar e not moot beca

use they satisfy section 161.004(a) (3) and there fore prejudice [hi s] pare ntal rig hts.” See id

. § 161.004(a) (3). J.C. further ar gues that, eve n if the issues ar e moot, that they are subject to the “c apable of re petition, y et eva ding r eview” exception to the mootness doc trine. See In re Uresti , 377 S.W .3d 696, 696 (Tex. 2012) (per curiam); W illiams v. Lara , 52 S.W .3d 171, 184

Section 161.004, titled “Te rmination of P are ntal Rights After Denial of Prior Petition t o 5 Terminate ,” re ads: a) The court may terminate t h e p ar ent-c hild relationship afte r rendition of an order that previously

denied ter

mination of the pare nt-child relationship i f: (1) the petition under this section is filed afte r the date the order denying termination was r ender ed; (2) the circ umstances of t he child, pare nt, sole manag ing conser vator, possessory conser

vator, or other pa

rty aff ecte d by the orde r deny

ing termination have materia lly and substantially chang ed since the date that the orde r wa s rende red; (3) the par ent committed an ac t list ed under Section 161.001 befor e the date the or der de nying te rmination was re ndere d; and (4) termination is in the best interest of the c hild. (b) At a hear ing under this section, the court may consider evidenc e prese nted at a previous hear ing in a suit for termination of the pare nt-child relationship of the par ent with respe ct to the same c hild. Tex. Fam. Code Ann. § 161.004 ( West 2008). 8(Tex. 2001). He urg es that he “likely” will be subject to “future termination suits” by the

Depa rtment “g iven the Depa

rtment’s intention to terminate his rig h ts so [t he foster mother] can adopt his children.”

The Depa rtment ag ree s that J .C.’s issues are not moot. But the Depa rtment does not 6 challeng e the jury ’s best interest finding or the trial court’s final decr ee that does not terminate J .C.’s pare ntal rig hts. I n order to terminate J .C.’s pare ntal rig hts, the Depa rtment had to prove one of the predic ate g rounds plus that termination was in the best interest of the children. See Tex. Fam. Code Ann. § 161.001(1), (2); In r e A .V. , 113 S.W .3d 355, 362 (Tex. 2003). Even if we were to sustain

eac h of J .C.’s issues challeng ing t h e j u ry ’s fi ndings conce rning the g rounds for termination, the result is the same: the Depa rtment did not satisfy its burden to support termination of J .C.’s pare ntal rig hts. See In re A.V. , 113 S.W .3d at 362 (explaining one predic ate g round plus best interest finding

nece ssary to support termination of par ental rig hts). I n t h i s co n t ex t, we would be issuing an advisory opinion wer e we to addre ss appellant’ s second, third, and fourth issues. See T ex . R. App. P. 47.1; Valley Baptist Med. Ctr.

v. Gonzalez , 33 S.W .3d 821, 822 (Tex. 2000) (noting that Texas courts do not ha ve jurisdiction to issue advisory opinions); Cooper v. Coe , 188 S.W .3d 223, 229 (Tex. App.—Ty ler 2005, pet. denied) (conc luding that court could not addre ss cross-a ppea l i s s u e seeking instruction on rema nd that

cer tain issues could not be relitig ated beca use add r e s s in g these issues would be “an advisory opinion,

The attorney ad litem also filed a brief on appea l and ag ree s that the issues challeng ing the 6 statutory g rounds for te rmination are not moot. 9which is f

orbidden by the Texas Constitution”); see also Tex. Const. art. I I , § 1. On this basis, we

overr ule J .C.’s first issue and dec line to addre ss J .C.’s second, third, a nd fourth issues. 7

Conservatorsh ip

I n his fifth issue, J .C. challenge s the jury ’s finding that the appointment of J .C. as manag ing conser

vator was not in the children’ s best interest and, in the alterna tive, the trial court’s finding that p ar en t al possession or acc ess would endang er the children’ s phy sical or emotional welfa re. J .C. asks this Court to r ever se the jury ’s appointment of the Depa rtment as the children’ s sole manag ing conser

vator and dismiss the petition based on the leg al insufficienc y of the evidenc e or, in the alternative, rende r judgme nt and appoint J .C. as possessory conser vator with visitation and

acc ess to his children.

The jury was instructed that J .C. “shall be appointed sole manag ing conser vator, in pref ere nce of the [Department], unless appointment of [J .C.] would not be in the best interest of the child beca

use t he appointment would si g nificantly impair the child’s phy sical hea lth or emoti onal development.” The jury was g iven the choice betwee n J .C. and the Depa rtment and chose the Depa rtment as the party that should be appointed the sole manag ing conser vator of the children. The jury was not asked about possessory conser vatorship, but the trial court found in the final decr ee that “appointment of [J .C.] as possessory conser vator was not in the children’ s best interest at this time”

We also conclude that the “ca pable of repe tition, y et evadi n g re v i ew ” exception to the 7 mootness doc trine does not a pply here

. Under this e x ception, “‘the challeng ed act is of such short duration that the appellant cannot obtain revie w befor e the issue become s moot’” and “[t] here must also be a rea sonable expectation that the same action will occur ag ain if the issue is not considere d.” Blum v. Lanier , 997 S.W .2d 259, 264 (Tex. 1999) (citation omitted). 10and that “par ental possession or acc ess at this time would endang er the phy sical or emotional welfa re of the c hildren.” Departme nt as Managing Conservator J .C. challeng es the leg al sufficie ncy of the evidenc e to support the jury ’s finding that the Depa rtment s h o u l d be appointed the manag ing conser vator. “Jury finding s underlying a

conser vatorship appointment ar e s ubject to ordinary leg al and fac tual sufficie ncy revie w.” In re J.A. J. , 2 4 3 S .W.3d 611, 617 n.5 (Tex. 2007); see Harris v. Texas Dep’ t of Family & Protective Servs. , 228 S.W .3d 819, 822–23 (Tex. App.—Austin 2007, no pet.); Corrales v. Texas Dep’ t of Family & Protective Servs ., 155 S.W .3d 478, 488 (Tex. App.—El Paso 2004, no pet.). We view the evidenc e in the light most favor able to the jury ’s finding and indulge ever y rea sonable infere nce that supports the finding

. Harris , 228 S.W .3d at 822 (citing City of Keller v

. W ilson , 168 S.W .3d 802, 807, 821–22 (Tex. 2005)). We al so “def er to the jury ’s deter

minations of the cre dibilit y of the witnesses, the weig ht to be g iven the t estimony , and the resolution of evidentiar y conflicts.” Id

. (citing W ilson , 168 S.W .3d at 819–20, 822). Secti on 263.404 of the family code authorizes the trial court to appoint the Depa rtment as manag ing conser vator of a child without terminating the rig hts of the pare nt when the trial court finds that “appointment of a pare nt as manag ing co n s er v at or would not be in the best interest of the child beca

use the appointment would signific antly impair the child’s phy sical health

or emotional development” and t h at “it would not be in the best interest of the child to appoint a relative of the child or ano t h er person as manag ing conser vator.” Tex. Fam. Code Ann. § 263.404(a) ; see also id. § 153.002 (West 2008) (“The best interest of the child shall alway s be the
11primary considera tion of t he court in deter

mining the issues of conservatorship and pos s es s i o n o f and acc ess to the child.”). Among the fac tors that courts shall consider in making this deter mination

are “the needs and desires of the child” and the child’s “spec ial medical or behavior needs that make adoption of the c hild unlikely .” Id . § 263.404(b); see also id . § 263.307 (West 2008) (statingthat 8 “prompt and perma

nent place ment of the child in a safe environment is presumed to be in the child’s best i n tere st” and listi ng fac tors that court should consider “in deter mining whether the child’s pare nts are willing and able to provide the child with a safe environmen t ”) ; Ho l l ey v. Adams , 5 4 4 S

. W

. 2d 367, 372 (Tex. 1976) (desc ribing fac tors that courts may consider to deter mine b es t interest of c hild).

We a re also mindful that the family code cre ates “a rebuttable presumption that the appointment of the pare nts of a child as jo i n t m an agi n g conser vators is in the best interest of the child.” Tex. Fam. Code Ann. § 153.131(b) (West 200 8 ). Gene rally , “unless the court finds that app o i n t m en t of the pare nt or pare nts would not be in the best interest of the child beca use the ap p o i ntment would signific antly impair the child’s phy sical health or emotional development, a pare nt shall be appointed sole manag ing conser vator or both pare nts shall be appointed as join t manag ing conser

vators of the child.” Id

. § 153.131(a)

. In this statutory context and un d er t h e applicable standard of

revie w, we tur

n to a re view of the evidenc e. The Depa rtment prese nted evidenc e that supported a finding that J .C. was unable to take car e of the children or p ro v i d e t h e children with a safe environment. See id

. § 263.404(b)

The other two fac tors listed in section 263.404(b) do not apply here beca use o f t h e 8 children’ s ag es. SeeTex. Fam. Code Ann. § 263.404( b)(1) , (2) ( West 2008). 12(cour

ts shall consider the children’ s “nee ds”); see also id. § 263.307(b)( 1 ), (7 ), (8 ) (fa ctors to consider in deter

mining whether parent able to pro v i d e s af e environment include “the child’s ag e and phy sical and mental vulnera biliti es,” and history of “abuse or assaultive conduct” or “substance abuse” “by the child’s family or others who have acc ess to the child’s home”) ; Holley , 544 S.W .2d at 372 (fa ctors to consider in deter mining best interest include pare ntal abilities and co n d u ct , t h e emotional and phy sical needs of the child now and in the future, and emotional and phy sical dang er to the child now and in the f uture). The children wer e three and four at the time of trial, and J .C. rema ined incar cer ated with an expected rele ase date of April 2013. He testified that he would need six months to one y ear af t er h e wa s rele ased befor e he would be rea dy to car e for his children. Wit hin months of t h e dismiss al of the first termination proce eding , J .C.’s chosen care g iver, the case m anag er from L ife Works, returne d the children to the Depa rtment’s car e. A CPS employ ee testified that she contac ted J .C. within day s of rec eiving notice that the case manag er was unable to continue car ing for the children, and he provided the name of a friend, but the employ ee was unable to make contac t w ith the friend. Around Dece mber of 2011, J .C. provided the name of his friend who was a nurse as a potential car eg iver, but the friend had not seen the children for two y ear s at the time of the jury trial, considere d the children’ s mother “kind of like my sister,” and was in co n t ac t wi t h her. The children’ s mother continued to have drug and alcohol problems and had a history of family violence. The home study

also had not bee n completed on the f riend. 9

There was no explanation for why the home study had not been co m p leted by the time 9 of trial. 13Other evidenc e supported a finding that the children wer e doing well in their curr ent

place men t an d t h at their needs wer e being met. See Tex. Fam. Code Ann. § 263.404(b); Holley , 544 S.W .2d at 372 (fa ctors to consider in deter mining b es t i n t er est include plans for children and stability of the home or proposed place ment). After the children wer e returne d to the Depa rtment’s

car e in 2011, the Depa

rtment place d them wi t h t h e foster mother. The foster mother and others testified that the children wer e doing well and bonded with her and that she was meeting their needs. The children had resided with her from around J uly 2010 to April 2011, m ai n tained contac t and visits with her fr om April to J uly 2011, and then r esided with her from August 2011 to J uly 2012, the time of the trial. She was a consistent, stable car eg iver. The children’ s thera pist rec ommended that the children stay in the ir curr ent place ment with her a nd expressed conc erns with the children being moved to a new place ment. The thera pist also testified that the children had ag g ressive behavior and attac hment issues but they wer e makingprog ress in the foste r mother’ s car e. Other evidence i n cl u d ed J .C.’s criminal hi story and his tory of family violence and drug abuse. See Tex. F am. Code Ann. § 263.307(b)( 7), (8); Holley , 544 S.W .2d at 372. Whil e on community supervision, J .C. was convicted for assault family violence as a result of the alterc ation with the mother in June 2010. A police office r who was at the scene testified that J .C. “ stated that he wa s g oing to ‘ [b] eat the shit out of the bitch’ and ‘.

. . that nobody is goingto lay

a hand on me like that and get away with it’” when ref err ing to the children’s mother. J .C. also testified that he broke the mother’s arm during an ear lier alterc ation. J .C. had a history of drug abuse prior to his incar cer ation in 2010 and admit ted t o smoking marijuana a few months before the jury trial while

14he was inca rce rate d. J .C. a lso ha d other disciplinary infrac tions during his inc arc eration that wer e written up, includingref

using a drugtest and assa

ulting a sta ff membe r. J .C. prese nted evidenc e that su p p orted finding s that he loved his children and was bonded with the m, that he had the nece ssary pare nting skills to take car e of them, that he had a job offe r when he was rele ased from prison, that his fr i en d wh o was a nurse was an appropr iate place ment, and that she would be able to take car e of the children until he was rea dy for them. I t was within the jury ’s province , howeve r, to deter mine the cre dibilit y of the witnesses and the weig ht to be g iven to their testimony

. Harris , 228 S.W .3d at 822–23 (def err ing to jury ’s deter

minat i o n s of

cre dibilit y of witnesses, weight to be g iven to their testimony , and resolution of evidentiar y conflicts). The j u ry co u l d h ave resolved the conflicting evidenc e ag ainst J .C. and cre dited the evidenc e of J .C.’s criminal and violent conduct and his inability to provide an appropr iate car eg iver for his chil dren while he was in prison to conclude that the appointment of J .C. as the manag ing

conser vator would signific antly impair the children’ s phy sical health or emot io n a l d e v elopment. See T ex . Fa m . C o d e Ann. § 153.131. Viewing the evidenc e in the light most favor able to the jury ’s fi n d i n g, we conclude the evidenc e was leg ally sufficie nt to support the jury ’s finding that th e Depa rtment should be appointed the sole manag ing conser vator of the children. See In re J. A .J. , 243 S.W .3d at 617 n.5. Denial of Possessory Conservatorship I n the alternative, J .C. contends that the trial court abused its discretion by failing to appoint J .C. posse ssory conser vator and deny

ing him visitation and ac cess to his children be cause there was no evidenc e that such appointment was not in the children’ s best interest or that visitation
15and acc ess would endang er their welfa re. A trial court must appoint as a possessory conser vator “a pare nt who is not appointed as a sole or joint manag ing conser vator unless [t he court] finds that the appointment is not in the best interest of the child and that pare ntal pos s essi on or acc ess would endang er the phy sical or e motional welfar e of the child.” Te x . Fa m. Code Ann. § 153.191. We revie w a trial court’s conser vatorship deter

minations for abuse of discretion and may reve rse “only if the decision is arbitra ry and unrea sonable.” In re J.A.J

. , 2 4 3 S

. W

. 3 d at 616 (citing Gillespie v. Gillespie , 644 S.W .2d 449, 451 (Tex. 1982)). “We view the evidenc e in the light most favor able to the tri al co u rt ’s d ecision and indulge ever y leg al presumption in favor of its judgme nt.” Earvin v. Texas Dep’ t of Fami l y & Protective Servs ., 229 S.W .3d 345, 350 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citation omitted). Fur ther, “[w]e g ive wide latitude to a trial court’s decision on custody , control, possession, and visitation matters.” Id

. (citing Gillespie , 644 S.W .2d at 451).

I n addition to the evidenc e stated above as to the jury ’s finding that the Depa rtment should be appointed manag ing conser vator, J .C.’s friend who took the children “twice a wee k” for “betwe en three and five wee ks” to visit J .C. in prison testified that the visits wer e “over whelming ” for the children and that they would g et “upse t ” at t h e en d o f the visits. A CPS employ ee also testified that it wa s “not common prac tice to take children this y oung to ja ils to visit their pare nts” and that her experience with jail visits was that they wer e “sca ry” for small children, that the children did not understand, and that the visits “c reate[ ] nightmar es” and wer e “not a positive experience .” J .C. also admitted to multipl e infractions, including smokingmarijuana only a fe w months before the jury trial, during his incar cer ation. Given this evidenc e, we cannot conclude that the trial court

16abused its discretion by denying J .C.’s reque st to b e ap p o i n t ed a possessory conser vator with visitation and acc ess to the children at this tim e. See Earvin , 229 S.W .3d at 350. We overr ule appellant’ s fifth issue.

CONCLUSION

For these re asons, we a ffirm the tria l court’s fina l decr ee.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Jones, J ustices Goodwin and F ield Affir med Filed: Apr il 3, 2013

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