in the Interest of V.W. Jr., a Child

AFFIRMED and Opinion Filed December 14, 2022




                                     S  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 and brother-in-law (“Aunt” and “Uncle”) as

managing conservators of her child, V.W., Jr.       Mother asserts a single issue

contending the evidence was legally and factually insufficient to support the jury’s

finding that appointment of Mother as sole managing conservator would

significantly impair V.W., Jr’s physical health or emotional development. We

affirm the trial court’s order.
                                             Background

        Mother is the biological mother of four children: V.W., a girl, V.W., Jr., a

boy, N.W., a boy, and L.M., a girl. At the time of trial, V.W was seventeen years

old, V.W., Jr. was fourteen, N.W. was eleven, and L.M. was seven. In September

2020, the Department of Family and Protective Services (the “Department”) filed a

petition for protection of all four children seeking conservatorship or, alternatively,

termination of Mother’s parental rights. During the course of proceedings, the case

pertaining to V.W., Jr. was severed and tried separately from the suit involving his

siblings. This appeal addresses only the 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 years 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 children were conducted.                           Mother met with

Cassandra Marino, a Department investigator.

        Marino questioned Mother about her relationships. Mother stated there had

been domestic violence in her 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 could 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 oldest children. Mother became pregnant with L.M. during
a trip to Louisiana.
                                                   –2–
she saw Mother with bruises and scratches following an altercation 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 would no longer discuss any physical abuse she

suffered because she did not want to leave 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 Chisolm at a store and he was homeless. After

taking Chisolm to a shelter a few times, Mother let Chisolm move in with her.

Mother told her Chisolm had been in prison, 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 him while she was at work.

      When Marino questioned Mother about Chisolm, Mother stated she had no

concerns that Chisolm had sexually assaulted L.M. When Mother was told that L.M.

made allegations against Chisolm in her forensic 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 sexually abused. Marino stated that, when

V.W. was twelve years old, she was involved in a sexual relationship with an older



                                       –3–
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 weeks until he physically attacked her by

choking her, beating her head against a wall, and slashing her face with a knife.

After that, Mother moved to a shelter.

      Following a hearing, Mother was ordered to perform a variety of services,

including a parenting program addressing sexual abuse, a domestic violence

program, and family counseling. Mother was able to move back into an apartment

and complete most of the programs within 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 monitored by the Department. V.W., Jr. lived

with Aunt and Uncle.

      The Department remained concerned about permanently returning the

children to Mother, given that Mother would still occasionally deny that Chisolm

sexually abused L.M. and frequently failed to cooperate with Department members.

Mother continued to deny that Chisolm abused L.M. even though Mother knew

Chisolm had herpes and she had also contracted herpes from him. After the third

child was placed in Mother’s home, the situation began to deteriorate.



                                         –4–
      Denica Diaz, a conservatorship caseworker for the Department, testified that

when she confronted Mother about issues involving the children, Mother would

become extremely angry and, at times, aggressive. Katrina Luallen, the court

appointed special advocate for the children, testified that, in her interactions with

Mother, Mother would yell, scream, and curse at her. Mother would also either

avoid answering questions or give answers that 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 door 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 police. 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 because they were being disrespectful.

      On another occasion, Luallen went to Mother’s apartment and waited outside

for her to come home. When Mother pulled 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 saying there was “no man.”

      During that same time, Diaz was having problems conducting home

visitations. She stated Mother would not let her into certain areas of the house. At

                                        –5–
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 saying “See, see, it’s just stuff. Can’t you

see?” Mother had never prevented Diaz from looking 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 Department determined it was no longer

willing to work with her towards permanent 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 only 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 never knew what was going to happen next. He testified he

heard Chisolm verbally abuse 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, loving, and responsive to his

needs. They helped him with his school work, went to his basketball games, gave

him a savings account, and taught him to manage money. V.W., Jr. said he thought

                                        –6–
Aunt and Uncle were preparing him for the future and Uncle was a great role model.

V.W., Jr. wished to continue his relationship 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. first 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 had 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 apartment 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 living 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 things. Aunt stated Mother became upset

and started cursing and yelling in front of the children. Aunt asked Mother to leave

                                         –7–
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, Mother had previously gone so far as to

threaten to kill herself in front of the children.

       Aunt was concerned that if Mother was 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 pendency 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 behavioral changes. Even after finishing the

sexual assault program, Mother continued 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 others 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 pendency 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

                                           –8–
the move. Luallen also told Mother there was a concern raised by the maternal

grandmother that L.M. was watching pornography on electronic devices. Mother

denied it was an issue. Because of Mother’s apparent unwillingness to address issues

or change her behavior, Luallen was concerned V.W., Jr. would learn to repeat those

behaviors, and that he would be exposed to people who 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 second day. Mother left part way through her

questioning on the first day because she had not made arrangements for child care.

On the second day, Mother became upset within the first few minutes of questioning

and, after an outburst including profanities, disconnected from the proceeding. Trial

continued for several more days, but Mother never returned. Upon motion made by

the Department, Mother’s testimony was struck and the jury was instructed not to

consider it.

         After hearing the evidence, the jury returned 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.

                                                   –9–
                                      Analysis

      A jury’s verdict regarding conservatorship is binding on the trial court and

entitled to substantial deference on appeal. TEX. FAM. CODE ANN. § 105.002(c);

Danet v. Bahn, 

 (Tex. 2014). In reviewing the jury’s verdict,

we apply the ordinary evidentiary review for legal and factual sufficiency. Danet,

. Evidence is legally insufficient 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. 

. Evidence is

factually insufficient if it is so against the great weight and preponderance of the

evidence that it is manifestly unjust, shocks the conscience, or clearly demonstrates

bias. In re C.H., 

 (Tex. 2002); Pool v. Ford Motor Co, 

 (Tex. 1986). Where no party objected to the jury instructions given, we

review the sufficiency of the evidence in light of those instructions. Danet, 

.

      The court’s charge in this case included the following relevant instructions:

                    The best interest of the child shall always be the primary
             consideration in determining 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.

                                        –10–
                   2. The emotional and physical 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 appointed permanent managing
             conservator, in preference to the Texas Department of Family
             and Protective Services or a family relative, unless appointment
             of a parent as managing conservator would not be in the best
             interest of the child because the 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 the child is borne by the non-parent seeking

conservatorship. In re F.E.N., 

 (Tex. 2019). Such proof should

include the acts and omissions of the parent demonstrating that result. 

 Conduct

by the parent occurring in the years immediately before trial, together with evidence

of the child’s bond with the caretaker with whom they were placed due to the

parent’s conduct, may constitute some evidence to support a finding of significant
                                        –11–
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., 

 (Tex. App.—Fort Worth 2015, no pet.). Although evidence of past

misconduct, standing alone, may not be sufficient to show the present unfitness of a

parent to be managing conservator, a factfinder may infer present unfitness from the

parent’s recent, deliberate misconduct. In re A.V., No.05-20-00966-CV, 

, at *6 (Tex. App.—Dallas July 15, 2022, no pet.) (mem. op.).

Considerations when deciding conservatorship include, among other things, parental

irresponsibility, bad judgment, child abandonment, and an unstable, disorganized,

and chaotic lifestyle that has put, and will continue to put, the child at risk. In re

S.T., 

. The parent’s treatment of other children may also be

relevant. 

      In her brief on appeal, Mother does not generally challenge the jury’s

determination that naming Aunt and Uncle managing 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 development. She argues “no

evidence was produced by the Department explaining 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.”



                                        –12–
      Contrary to Mother’s assertion, the evidence produced by the Department

showed that Mother’s choices and conduct subjected her children to an unstable,

unsafe, and sometimes violent home environment. 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 responsibility for her choices or change her

behavior.   See In re D.W., 

 (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 going to happen and he worried he would

have to protect her. At a time when the Department was monitoring Mother’s ability

to provide the children with a safe environment, 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 conclude her pattern of

bringing abusive or unstable people 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 the pendency of the case, Mother was

uncooperative, unresponsive to counselling, secretive, and prone to angry outbursts.

Aunt testified that, after spending time with Mother, V.W., Jr. would be withdrawn

                                         –13–
and behave disrespectfully towards her. In contrast, the 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 more responsive to his needs.

      Finally, the evidence showed Mother failed to protect her children. She

allowed her oldest daughter to engage in a sexual relationship 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 and 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 and appropriate. Safety, security, and stability are

critical to a child’s development. In re R.T.K., 

 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied). We conclude the evidence was both legally

and factually sufficient to support the jury’s finding that appointment of Mother as

managing conservator would significantly impair V.W., Jr.’s physical health or

emotional development.

      We overrule Mother’s sole issue and affirm the trial court’s order.




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

                                        –14–
                                    S
                             Court of Appeals
                      Fifth District of Texas at Dallas
                                   JUDGMENT

 IN THE INTEREST OF V.W., JR.,                  On Appeal from the 196th Judicial
 A CHILD                                        District Court, Hunt County, Texas
                                                Trial Court Cause No. 90770.
 No. 05-22-00634-CV                             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




                                         –15–