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Click here for the full text of this decision The appellee’s counselor’s recommendation to allow unsupervised visitation indicates that the appellee passed a polygraph test covering six years, successfully completed an intensive treatment program, and does not present a risk to the children. The trial court acted well within the scope of the parties’ approved settlement agreement. FACTS:Appellant and appellee were divorced in 1999. The final divorce decree granted appellant and appellee joint managing conservatorship over their two children, B.N.F. and J.D.F. Jr. Appellant was granted the right to establish the children’s primary residence and appellee was granted possession according to the standard possession order of the Texas Family Code. Texas Family Code �153.311-.317. Although appellant was appointed possessory conservator, the children have lived with appellant’s parents for most of the time since the divorce. On Jan. 3, 2000, appellant filed a petition to modify the parent-child relationship, asking the court to limit appellee’s possession rights to supervised visitation only. Appellant claimed in a sworn affidavit that appellee engaged in sexual contact with the children by touching them on the genitals. At the time appellant filed his petition, B.N.F. was 3 and J.D.F. was 2. Then, in March 2000, appellant filed a petition to terminate appellee’s parental rights. Appellant’s petition included an affidavit from Darlene Hall, an agent of the Texas Department of Protective and Regulatory Services, who recommended against allowing appellee unsupervised visits with the children. The court issued a temporary restraining order on March 27, 2000, that terminated appellee’s visitation rights with the children until a hearing could be held on the matter. On May 4, 2000, the hearing was postponed and appellee was awarded visitation on Tuesdays and Thursdays from 7 p.m. to 9 p.m. under the supervision of the TDPRS. Tracey Jennings, guardian and attorney ad litem for the children, thereafter filed a motion to modify the temporary orders and asked the court to exclude appellee from access to the children. Jennings attached an affidavit stating, “At this time, I do not believe, based on information received from the children’s counselor, that [it] is in their best interest to continue visitation with [appellee].” On June 12, 2000, the court issued a temporary restraining order that prohibited appellee from exercising visitation with the children until further notice from the court. A custody hearing was held in August 2000, wherein the trial court heard evidence regarding allegations that appellee engaged in sexual contact with the children. Pat Mashburn, the children’s counselor, testified that both children told her appellee had sexual contact with them and that the children exhibited behavior consistent with children that are exposed to a sexual perpetrator. Kathy Dudley, a CPS caseworker, testified that both children told her appellee touched them on the “tee tee.” Dudley also testified that a doctor performed a colposcope exam on the little girl, B.N.F., and reported that the findings did not support B.N.F.’s statements. At the hearing, appellee admitted that she was convicted for the offense of sexual assault of a child in 1995, when she was 17. Appellee was tried as an adult for sexual assault, which was committed over several years as a minor and ended when she was 15. Appellee testified that she attended weekly counseling sessions and group counseling as required by the terms of her probated sentence. Appellant’s aunt and uncle testified on appellee’s behalf, stating that it would not concern them to have appellee around their own children despite their knowledge of her criminal conviction. The aunt and uncle, as volunteer visitation supervisors, testified that they observed no inappropriate behavior during the times that they supervised Appellee’s possession of the children. On Oct. 16, 2000, the parties reached a settlement agreement and the trial court approved the terms. The court ordered supervised visitation for a period of 180 days and authorized appellee to resume the standard visitation rights awarded in the divorce decree upon the completion of the 180-day period. The court stipulated, however, that “[i]n the event that [Lawrin] Dean should recommend continuation of supervised visitation beyond the initial six month period after the Decree entered herein, then in such event the Court will reconsider such extension upon due notice and opportunity to be heard by all parties.” A further hearing was set to determine whether the period of supervised visitation should continue beyond the period of time recommended by Dean. At the hearing, held on Aug. 9, 2002, the court still did not have Dean’s recommendation as to appellee’s visitation rights. The trial court discussed recessing the hearing until the court received Dean’s report, but all parties agreed to waive their rights to a hearing and any further testimony from Dean. The judge ordered Dean to provide her written recommendations so the court could prepare its final order. Dean’s report, received in September 2002, indicates that appellee passed a polygraph test with questions regarding inappropriate sexual conduct that covered a period of six years. Dean remarked that appellee appeared to have a positive relationship with the children and noted that juvenile sex offenders are very different than adult sex offenders. Dean recommended unsupervised visitation stating, “Based on the fact that this sexual behavior occurred when [appellee] was a young child, she has successfully completed an intensive treatment program, she has demonstrated significant progress in treatment and court supervision, and the fact that she has had no sexual contact with anyone younger than 17 during the past 6 years (on probation), [i]t is my opinion, that [Appellee] does not present a risk to her children . . . and that she should be allowed unsupervised visitation with them.” Upon the receipt of Dean’s report, the court issued an order finding that “it is in the best interest of the parties and the children that [appellee] be granted standard unsupervised visitation rights with the children.” Appellant appealed the trial court’s order claiming insufficiency of the evidence and abuse of discretion. HOLDING:Affirmed. Absent findings of fact and conclusions of law, the court upholds the trial court’s judgment if evidence supports an implied finding that it was in the best interest of the children to grant appellee visitation according to the SPO. The evidence in the case at hand is sufficient to support the trial court’s implied finding that appellant did not overcome the presumption that the SPO was in the best interest of the children. The trial court’s judgment is supported by testimony from appellant’s aunt and uncle in favor of appellee and evidence that a colposcope exam performed on B.N.F. resulted in findings inconsistent with B.N.F.’s statements that she was sexually abused by appellee. However, the strongest evidence in support of the trial court’s implied findings emanates from the settlement agreement reached by the parties in October 2000. As part of the settlement agreement approved by the court, the parties agreed that Dean was authorized to recommend to the court an extension of supervised visitation beyond the six-month period if she deemed it appropriate. And it was only after the court received Dean’s report that an order was issued granting standard unsupervised visitation rights. Dean’s recommendation to allow unsupervised visitation indicates that appellee passed a polygraph test covering six years, successfully completed an intensive treatment program, and does not present a risk to the children. The trial court acted well within the scope of the parties’ approved settlement agreement. The court holds that the trial court did not act arbitrarily or unreasonably in granting appellee standard possession and therefore overrule issues one through four. Appellant additionally argues that even if there is sufficient evidence to meet the abuse-of-discretion standard, the trial court erred in granting appellee standard possession because to do so violates �153.004(c) of the Texas Family Code. Section 153.004(c) requires the court to consider the commission of family violence in determining parental possession rights. Appellant asserts that the trial court based its decision only on the risk appellee presently poses and not on her past behavior as required by the Texas Family Code. However, testimony at the hearing regarding appellee’s prior conviction, as well as Dean’s letter addressing appellee’s past behavior, leads the court to conclude that the trial court did consider appellee’s past behavior in deciding to grant standard possession. The court holds that the trial court’s decision to grant appellee unsupervised standard possession did not violate �153.004(c) of the Texas Family Code. OPINION:Holman, J.; Livingston, Dauphinot and Holman, JJ.

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