in the Interest of C.A.C. and K.M.C., Children

                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-22-00029-CV


                   IN THE INTEREST OF C.A.C. AND K.M.C., CHILDREN

                            On Appeal from the 72nd District Court
                                    Lubbock County, Texas
             Trial Court No. 2017-526,396, Honorable Ann-Marie Carruth, Presiding

                                        December 14, 2022
                                 MEMORANDUM OPINION
                        Before PARKER and DOSS and YARBROUGH, JJ.


        Appellant, Mother,1 appeals from the trial court’s order in this modification

proceeding, contending that the trial court abused its discretion by granting Father access

to their children. We affirm.


                                             BACKGROUND


        Mother and Father were named as joint managing conservators of their two

daughters, C.A.C. and K.M.C., in February of 2019. In May of 2019, Father struck ten-


        1To protect the privacy of the parties involved, we will refer to the appellant as “Mother,” to the
appellee as “Father,” and to the children by initials. See TEX. FAM. CODE ANN. § 109.002(d).
year-old C.A.C. with his hand, which led to an investigation by the Department of Family

and Protective Services. The Department created a safety plan, which Mother signed,

providing that Mother would not allow any unsupervised contact between Father and the

children outside of the Department’s offices. In December of 2019, Father pleaded guilty

to the misdemeanor offense of assault arising from the May incident.2 He was convicted

and placed on community supervision for twenty-four months.


       In June of 2020, Father filed a motion for enforcement of possession and access,

asserting that the children had not been allowed to see him during several periods of

visitation. Shortly thereafter, Mother filed a petition to modify the parent-child relationship,

citing Father’s conviction of an offense involving family violence. Mother sought to be

named as sole managing conservator and to have Father removed as joint managing

conservator. At the same time, Mother filed a petition to terminate the parent-child

relationship, which was later withdrawn. The associate judge denied Father’s motion to

enforce and entered temporary orders appointing Mother as temporary managing

conservator and Father as temporary possessory conservator. The orders required

Father to have visits with the children in a therapeutic setting.


       The final hearing on Mother’s petition to modify was held in May of 2021 before

the presiding judge. Following the hearing, the trial court issued a letter ruling naming

Mother sole managing conservator and Father possessory conservator. Father was

granted possession and access to the children under a stepped-up visitation schedule.




       2   See TEX. PENAL CODE ANN. § 22.01(a)(1).

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The trial court denied Mother’s motion to reconsider the letter ruling and signed the order

at issue on December 17, 2021. Mother then filed this appeal.3


                                                  ANALYSIS


        In her sole issue, Mother argues that the trial court, by granting Father access to

the children, failed to comply with sections 156.1045 and 153.004 of the Texas Family

Code, which require the trial court to take a history of family violence into account when

making conservatorship and possession determinations.                       See TEX. FAM. CODE ANN.

§§ 153.004, 156.1045.4 When a trial court modifies conservatorship, we review that

decision under an abuse of discretion standard. Gillespie v. Gillespie, 

 (Tex. 1982); Nichol v. Nichol, No. 07-12-00035-CV, 

, at *7

(Tex. App.—Amarillo Jan. 15, 2014, no pet.) (mem. op.). Abuse of discretion occurs when

the trial court acts arbitrarily, unreasonably, and without reference to guiding principles.

In re A.D.T., 

, 319 (Tex. App.—Amarillo 2019, no pet.). We will not disturb

the trial court’s decision unless the appellant establishes that the trial court so acted. In

re M.S.F., 

 (Tex. App.—Amarillo 2012, no pet.).


        Section 156.1045, entitled “Modification of Order on Conviction for Family

Violence,” provides:


        (a) The conviction . . . of a person who is a possessory conservator or a
            sole or joint managing conservator for an offense involving family
            violence is a material and substantial change of circumstances sufficient
            to justify a temporary order and modification of an existing court

        3In his brief, Father asserts that Mother did not timely perfect her appeal. Father’s argument
overlooks Mother’s motion for extension of time to file notice of appeal, which we granted on February 3,
2022, pursuant to Texas Rule of Appellate Procedure 26.3.
        4   Further references to the Texas Family Code will be to “section __” or § __.”

                                                       3
           order . . . that provides for the appointment of a conservator or that sets
           the terms and conditions of conservatorship or for the possession of or
           access to a child to conform the order to the requirements of Section
           153.004(d).

§ 156.1045(a). “It is a rebuttable presumption that it is not in the best interest of a child

for a parent to have unsupervised visitation with the child if credible evidence is presented

of a history or pattern” of family violence by that parent. § 153.004(e). Under section

153.004, a trial court “may not allow” a parent to have access to a child when it is shown

that there is a history of family violence, unless the trial court (1) finds that awarding the

parent access to the child would not endanger the child’s physical health or emotional

welfare and would be in the best interest of the child and (2) renders a possession order

that is designed to protect the safety and well-being of the child and any other person

who has been a victim of family violence committed by the parent. § 153.004(d), (d-1).

The order may require that periods of access be continuously supervised by an entity or

person chosen by the court. § 153.004(d)(2)(A).


       The trial court found that Father has a history or pattern of committing family

violence during the two-year period preceding the filing of this suit or during the pendency

of this suit. It further found that awarding Father access to the children would not

endanger the children’s physical health or emotional welfare and would be in the best

interest of the children.


       The record includes evidence that Father misses spending time with the children

and wants to have a positive relationship with them. The therapist that Father and the

children visit testified that Father has shown “substantial improvement” in his relationship

with the children. She stated that one of her goals was to help Father become “responsive

                                              4
instead of reactive” to C.A.C., and that she has witnessed Father make that change. The

therapist further testified that Father and K.M.C. have “a very good relationship.”


       The trial court’s possession order requires Father to complete a parenting course,

an anger management course, and ten joint counseling sessions with the children before

any visitation begins.    Following completion of those requirements, Phase 1 of the

stepped-up visitation plan begins, during which Father may have supervised visitation

through the Dispute Resolution Center twice a month for six months. After that six-month

period, in Phase 2, Father may have unsupervised visitation one Saturday afternoon each

month for six months. Then, in Phase 3, Father may have one overnight visit per month.

The order provides for Father to return to the previous phase if he misses any visits in

Phase 2 or Phase 3.


       The trial court’s order conditions Father’s access to and visitation with his children

on the completion of certain requirements.        Further, it imposes a safety measure,

supervision, on Father’s visitation once it begins, and a measured approach to

unsupervised visitation. Thus, we conclude that the order is designed to protect the safety

and well-being of C.A.C. and K.M.C. as required by section 153.004(d-1). Mother has

not shown that the trial court abused its discretion in granting Father access to the children

under the conditions set forth in the order. See, e.g., In re K.L.S., No. 11-21-00094-CV,

 at *23–24 (Tex. App.—Eastland Feb. 10, 2022, no pet.) (mem.

op.) (where trial court made implied finding of history or pattern of family violence by

mother, no abuse of discretion where trial court ordered that mother’s access to child be

limited and visitation with child be supervised); see also In re S.A.H., 

,


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930 n.31 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (appellate courts give wide

latitude to trial courts’ determinations on possession and visitation issues).


                                       CONCLUSION


       For the reasons set forth above, we overrule Mother’s issue and affirm the

judgment of the trial court.




                                                         Judy C. Parker
                                                            Justice




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