C. O. v. Texas Department of Family and Protective Services

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-21-00453-CV
C. O., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY
NO. 308287-B, THE HONORABLE ALAN MAYFIELD, JUDGE PRESIDING
MEMORANDUM OPINION
C.O. (Mother) appeals the trial court’s final decree appointing the Texas
Department of Family and Protective Services as permanent managing conservator of her three
sons—N.B., born in 2016; A.B., born in 2018; and M.S.J., born in 2019.1 In one issue on appeal,
Mother asserts that the trial court abused its discretion because the Department failed to present
sufficient evidence to overcome the statutory presumption that she should be appointed as the
children’s sole managing conservator. See Tex. Fam. Code § 263.404(a). We conclude that the
evidence is factually insufficient to support the trial court’s finding that appointment of Mother
as the children’s managing conservator would significantly impair the children’s physical health
and emotional development. We reverse that portion of the trial court’s decree appointing the
Department as permanent managing conservator and remand the case to the trial court for a new
trial on the issue of conservatorship.
1
For the children’s privacy, we refer to C.O. as “Mother” and to the children and others
involved by their initials. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.
CONSERVATORSHIP AND THE PARENTAL PRESUMPTION
The primary consideration in determining conservatorship is always the child’s
best interest. Id. § 153.002; Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (setting out
nonexhaustive list of factors to determine child’s best interest). The parent-child relationship,
however, is constitutionally protected, see In re C.J.C., 603 S.W.3d 804, 807 (Tex. 2020) (citing
Troxel v. Granville, 530 U.S. 57, 66 (2000) (plurality opinion) (recognizing that parents have
fundamental right to make decisions concerning care, custody, and control of their children), and
“deeply embedded in Texas law” is a presumption that it is in the child’s best interest to award
custody to a parent, see id. at 812 (quoting In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000)); In re
R.R., 209 S.W.3d 112, 116 (Tex. 2006) (per curiam) (noting that “there is a strong presumption
that the best interest of a child is served by keeping the child with a parent”).
Although trial courts generally have broad discretion in determining what is in a
child’s best interest, Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), the “legislature has
explicitly limited the exercise of that discretion when a nonparent seeks to be appointed as
managing conservator,” In re F.E.N., 542 S.W.3d 752, 769 (Tex. App.—Houston [14th Dist.]
2018, pet. denied) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)); R.H. v.
D.A., No. 03-16-00442-CV, 2017 Tex. App. LEXIS 1743, at *9 (Tex. App.—Austin Mar. 2,
2017, pet. dism’d) (mem. op.). Under Section 153.131 of the Texas Family Code, when a trial
court determines conservatorship between a parent and a nonparent, a presumption exists that
appointing the parent as sole managing conservator or both parents as managing conservators is
in the child’s best interest. Tex. Fam. Code § 153.131(b). Generally, to overcome this parental
presumption, the nonparent must prove by a preponderance of the evidence that “appointment of
the parent or parents would not be in the best interest of the child because the appointment would
2
significantly impair the child’s physical or emotional development.” Id. § 153.131(a); see id.
§ 105.005 (“Except as otherwise provided by this title [governing suits affecting the parent-
child relationship], court findings shall be based on a preponderance of the evidence.”); see also
id. §§ 153.004(b) (limiting presumption in cases where parent commits physical or domestic
abuse), .131(b) (“A finding of a history of family violence involving the parents of a child
removes the presumption under this subsection.”), .373 (voluntary surrender of possession rebuts
parental presumption).
Applicable here, Section 263.404 governs a trial court’s decision to appoint
the Department as the child’s managing conservator without terminating parental rights. Id.
§ 263.404; see id. § 161.205 (providing that if trial court does not order termination of parental
rights, it shall either deny the petition or “render any order in the best interest of the child”).
Under this provision, which incorporates the parental presumption found in Section 153.131, a
trial court may appoint the Department as managing conservator without terminating parental
rights if it finds that:
(1) a parent’s appointment as managing conservator would not be in the child’s
best interest because the appointment would significantly impair the child’s
physical health or emotional development; and
(2) it would not be in the best interest of the child to appoint a relative of the child
or another person as managing conservator.
Id. § 263.404(a). In deciding whether to appoint the Department as managing conservator
without terminating parental rights, the court must consider the child’s needs and desires and
3
whether the child has special medical or behavioral needs that make adoption of the child
unlikely.2 Id. § 263.404(b).
BACKGROUND
In March 2019, the Department began an investigation after receiving a report of
neglectful supervision of N.B. and A.B. by Mother and her live-in boyfriend, M.J.3 According
to the report, there was domestic violence in the home, M.J. was often intoxicated or high on
marijuana or Xanax, and the children were scared of M.J. The next month, Department
investigator Nacole Wyche spoke with a detective with the Killeen Police Department, who
informed her that police had recently responded to an altercation at the home. As a result of
that altercation, N.B. sustained a head injury, and an emergency protective order was issued
against M.J.
According to the removal affidavit, made part of the record at the final hearing,
Wyche then met with Mother at the family’s home. During the visit, Wyche discovered that
although M.J. had been arrested for assaulting N.B. and was subject to a protective order,
Mother had allowed M.J. to return to the home. Mother also told Wyche that N.B. was injured
as a result of hitting his head on a table when M.J. grabbed him and that she was trying to get
the “protective order dropped because [M.J.] did not mean to hurt [N.B.].” During the visit,
Wyche observed that Mother was unable to pick A.B. up from the floor. Mother explained that
she suffers from muscle degeneration and that, as a result, she has difficulty caring for the
2
Although not relevant here, subsection (b) of Section 263.404 also requires the trial
court to consider whether the child will reach eighteen years of age in not less than three
years and whether a child twelve years of age or older has expressed a strong desire against
termination or being adopted. See Tex. Fam. Code § 263.404(b).
3
N.B.’s and A.B.’s biological father died in 2017. M.J. is M.S.J.’s biological father.
4
children and relies on M.J. for help. In addition, Mother reported that she suffers from anxiety,
depression, and post-traumatic stress disorder but had stopped going to therapy and was not
taking her medication. Wyche then found A.B. in the bedroom closet, on a “tummy time” toy,
with the door shut and the lights off. He smelled of feces and had a mild diaper rash, and
there were no diapers or wipes in the home. Wyche also observed marijuana “roaches” and
paraphernalia in the open and accessible to the children, and Mother stated that the home smelled
of marijuana due to M.J. smoking marijuana in the home.
On April 3, 2019, the Department filed an original petition seeking
conservatorship and termination of Mother’s parental rights to N.B. and A.B. The next month,
Mother gave birth to M.S.J., and the Department filed an amended petition to terminate Mother’s
and M.J.’s parental rights to M.S.J. and to obtain conservatorship of M.S.J. Following show-
cause hearings, the children were removed from Mother’s and M.J.’s care, the Department was
named temporary managing conservator of the children, and Mother and M.J. were placed on
family-service plans.
A final hearing commenced on November 9, 2020, and reconvened on
February 8, May 10, and July 12, 2021.4 After conclusion of the July 2021 hearing, the trial
4
The statutory automatic-dismissal deadline for the trial court to commence trial or grant
an extension in this case was April 6, 2020, and the case was set for a final hearing on March 16,
2020. See Tex. Fam. Code § 263.401 (providing for automatic dismissal of suit filed by
Department that requests termination or conservatorship unless court has commenced trial on
merits or granted extension “on the first Monday after the first anniversary of the date the court
rendered a temporary order appointing the department as temporary managing conservator”).
Due to COVID-19, the trial court extended the dismissal deadline and reset the hearing to
November 9, 2020. See First Emergency Order Regarding the COVID-19 State of Disaster,
596 S.W.3d 265 (Tex. 2020) (dated March 13, 2020, stating that courts may “[m]odify or
suspend any and all deadlines and procedures”); Third Emergency Order Regarding the COVID-
19 State of Disaster, 596 S.W.3d 266, 267 (Tex. 2020) (dated March 19, 2020, clarifying that
authorization to modify or suspend deadlines and procedures “applies to all proceedings under
Subtitle E, Title 5, of the Family Code, and specifically to the deadlines in Section 263.401”);
5
court signed a final decree terminating M.J.’s parental rights to M.S.J. As to Mother, the trial
court concluded that the Department had failed to prove that she had engaged in acts or
omissions constituting statutory grounds for termination and, as a result, denied the Department’s
request to terminate her parental rights. Nevertheless, the trial court found that appointment
of Mother as managing conservator “would not be in the best interest of the children because
the appointment would significantly impair the children’s physical health and emotional
development.” Consequently, the trial court appointed the Department as permanent managing
conservator of the children and appointed Mother as possessory conservator.
In one issue on appeal, Mother asserts that the trial court abused its discretion by
naming the Department managing conservator because the evidence is factually insufficient to
support the trial court’s finding that her appointment as sole managing conservator would
significantly impair her children’s physical health and emotional development.
STANDARD OF REVIEW
We review a trial court’s decisions on conservatorship for an abuse of discretion.
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A trial court abuses its discretion if it acts
without reference to any guiding rules or principles such that its ruling is arbitrary or
unreasonable. Cire v. Cummings, 134 S.W.3d 835, 838-39 (Tex. 2004); Coburn v. Moreland,
433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.).
Under an abuse-of-discretion standard, challenges to the legal and factual
sufficiency of the evidence are not independent grounds of error but instead are factors used to
In re K.T.S.N., No. 01-21-00456-CV, 2022 Tex. App. LEXIS 123, at *15-24 (Tex. App.—
Houston [1st Dist.] Jan. 11, 2022) (mem. op.) (rejecting argument that termination order was
void by operation of Section 263.401 because dismissal deadline was extended by trial court
pursuant to supreme court’s emergency orders related to COVID-19).
6
determine whether the trial court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587
(Tex. App.—Austin 2006, pet. denied). Thus, in applying the standard, we engage in a two-
pronged inquiry: (1) whether the trial court had sufficient information upon which to exercise
its discretion; and (2) if so, whether the trial court erred in its application of that discretion.
Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.). The focus of the
first inquiry is the sufficiency of the evidence, applying traditional sufficiency standards of
review. See Zeifman, 212 S.W.3d at 588. Under the second inquiry, we must decide whether,
based on the evidence before it, the trial court made a reasonable decision. Id. A trial court does
not abuse its discretion so long as there is some substantive, probative evidence to support its
decision. Id.When reviewing a trial court’s finding for factual sufficiency, we consider and
weigh all of the evidence in the record pertinent to the finding. City of Austin v. Chandler,
428 S.W.3d 398, 407 (Tex. App.—Austin 2014, no pet.) (citing Cain v. Bain, 709 S.W.2d 175,
176 (Tex. 1986)). We examine the evidence in a neutral light and will set aside the finding only
if the evidence that supports the finding is so weak, or so contrary to the overwhelming weight of
all the evidence, as to be clearly wrong and manifestly unjust. Id.; In re N.L.D., 412 S.W.3d 810,
818 (Tex. App.—Texarkana 2013, no pet.).
DISCUSSION
Applicable Law on Significant Impairment
To support a finding that appointment of a parent as sole managing conservator
would significantly impair the child, either physically or emotionally, the evidence must do more
than “merely raise a suspicion or speculation of possible harm.” In re B.B.M., 291 S.W.3d 463,
467 (Tex. App.—Dallas 2009, pet. denied). Generally, the nonparent seeking conservatorship
7
must instead “offer evidence of specific acts or omissions of the parent that demonstrate an
award of custody to the parent would result in physical or emotional harm to the child.”
Lewelling, 796 S.W.2d at 167; In re C.L.J.S., No. 01-18-00512-CV, 2018 Tex. App. LEXIS 9753,
at *9 (Tex. App.—Houston [1st Dist.] Nov. 29, 2018, no pet.) (mem. op.). In other words, the
evidence must support the logical inference that some specific, identifiable behavior or conduct
of the parent will probably cause serious harm to the child. In re F.E.N., 542 S.W.3d at 770;
In re B.B.M., 291 S.W.3d at 467; R.H., 2017 Tex. App. LEXIS 1743, at *10-11; Whitworth v.
Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.). This is a
heavy burden that is not satisfied by merely showing that the nonparent would be a better choice
as custodian of the child. In re B.B.M., 291 S.W.3d at 467.
Acts or omissions that may “significantly impair [a] child’s physical health or
emotional development” include, but are not limited to, physical abuse, severe neglect,
abandonment, drug or alcohol abuse, or immoral behavior by a parent. Id.; see In re Caudillo,
No. 03-19-00208-CV, 2020 Tex. App. LEXIS 8682, at *11-12 (Tex. App.—Austin Oct. 28, 2020,
no pet.) (mem. op.) (discussing significant-impairment standard under Section 102.004(a)(1),
standing for grandparents and other persons). “Other considerations may include parental
irresponsibility, a history of mental disorders and suicidal thoughts, frequent moves, 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., 508 S.W.3d 482, 492 (Tex. App.—
Fort Worth 2015, no pet.). The material time to consider is the present, and evidence of past
conduct may not, by itself, be sufficient to show present unfitness. Id. However, a factfinder
may infer the present unfitness of the parent to be managing conservator from the parent’s
recent, deliberate past misconduct. In re Caudillo, 2020 Tex. App. LEXIS 8682, at *13
8
(concluding that evidence of parent’s past use of marijuana, methamphetamine, and heroin was
sufficient to support significant-impairment finding, despite undisputed evidence that she had
been sober for seventeen months); see also Danet v. Bhan, 436 S.W.3d 793, 798 (Tex. 2014)
(concluding that evidence of parent’s misconduct two to three years before trial, together with
evidence of more recent misconduct and of stability of child’s current placement, was legally
sufficient to support significant-impairment finding).
Evidence on November 9, 2020
The final hearing to terminate Mother’s parental rights began more than eighteen
months after the children were removed from Mother’s and M.J.’s custody and occurred on four
days, over eight months. The final hearing first convened on November 9, 2020. On that first
day, the Department called conservatorship worker, Lori Hernandez, who testified as to the
events leading to the children’s removal in April 2019. Hernandez also testified that Mother was
complying with her family-service plan by maintaining employment and that she had paid all but
$400 of her child-support obligation. In addition, Mother was no longer cohabitating with M.J.
and was living by herself in a two-bedroom home that Hernandez considered “appropriate” and
with adequate space for the children. Although the trial court had abated Mother’s visitations
with the children in October 2019, due to her failure to consistently attend the visits, the
visitations were reinstated in January 2020, and Mother had not missed any visits since then.
Hernandez also testified that since January 2020, Mother had been consistently
submitting to weekly drug tests and attending individual therapy, as required by her family-
service plan. According to Hernandez’s testimony, in April 2019, Mother tested positive for
marijuana while pregnant with M.J.; however, the remainder of Mother’s drug tests were
9
negative, including a hair-follicle test administered in January 2020. Mother missed fourteen
drug tests in total but had missed only one drug test after December 2019, in May 2020.
As to therapy, Hernandez testified that Mother’s therapist reported that, as of
September 2020, Mother had not yet made sufficient progress to support a recommendation of a
monitored return.5 The therapist instead recommended that Mother begin supervised visitation
with the children outside of the Department office. In addition, Hernandez testified that she was
concerned that a psychological test, conducted by a clinical psychologist (not Mother’s therapist)
and performed in June 2019 as part of Mother’s court-ordered psychological evaluation,
suggested that Mother was at high risk for committing physical child abuse. Hernandez
acknowledged, however, that there were no allegations or evidence that Mother had ever
physically abused any of the children and that her therapist was comfortable with her having
visitations outside of the CPS office.
Finally, Hernandez testified that A.B and N.B. were happy and doing well in their
foster placement and that the foster parents would like to adopt the two boys, although N.B. told
Hernandez that he would still like to see his mother. Further, M.S.J. was living with his paternal
grandparents, who were meeting his emotional and physical needs and wanted to adopt him.
Hernandez told the court that she believed it was in the children’s best interest to terminate
parental rights so that the children could be adopted.
5
A monitored return occurs when the trial court, without rendering a final order or
dismissing the suit, issues a temporary order that: (1) finds retaining jurisdiction is in the child’s
best interest; (2) orders the Department to (a) return the child to the parent or (b) transition the
child from substitute care to the parent, according to a schedule, while the parent completes
the remaining necessary requirements of his or her service plan; (3) orders the Department
to continue to serve as temporary managing conservator; and (4) orders the Department to
monitor the child’s placement to ensure the child is in a safe environment. See Tex. Fam.
Code § 263.404.
10
Evidence on February 8, 2021
When the hearing reconvened on February 8, 2021, Mother was the sole witness.
In her testimony, Mother told the trial court that she believed that it was in her children’s best
interest to be returned to her because she had complied with all the requirements of the
Department, had been continuously employed with Bush’s Chicken for over a year, and was
financially stable with a home that could accommodate her children.
Mother testified that she had been attending individual therapy on a weekly basis
since July 2019 and that she was making progress and working through her issues with past
marijuana use and with abusive relationships. Mother offered, and the trial court admitted into
evidence, a letter from her therapist, dated November 8, 2020. In the letter, the therapist states,
in part:
Beginning in January 2020 to March 2020, [Mother] was able to make a complete
turnaround in her life with the assistance of family and resiliency. During the
course of treatment, [Mother] has developed empathetic communication skills,
problem solving strategies and she completed Nurturing Parenting Curriculum. . . .
She now has an understanding of the cycle of domestic violence and the effects
that has on her children. . . . [Mother] has her feet firmly on the path of wellness
and healing.
The therapist concluded that he “strongly recommend[ed]” that Mother “be given the opportunity
to earn a monitored return of children.”
As to her relationship with M.J., Mother acknowledged that M.J. assaulted four-
year-old N.B. but denied that M.J. had slapped him across the face. Mother instead described the
assault that led to M.J.’s arrest as an incident where “[N.B.] was trying to get out of [M.J.]’s
arms and [N.B.] hit his head on the table.” Mother admitted that she continued to live with M.J.
for approximately seven months after he was arrested for assaulting N.B. Mother also testified,
11
however, that she had not had any personal contact with M.J. since February 2020, after he
physically assaulted her and she “filed the protection on him.” Mother denied smoking
marijuana in her home but admitted that she had allowed M.J. to smoke marijuana in the
home and acknowledged that this type of drug use around her children was “not okay.” At the
conclusion of Mother’s testimony on February 8, 2021, the trial court ordered an extension of the
case for the purpose of giving Mother “a chance to earn a monitored return based on the
therapist’s recommendation.”
Evidence on May 10, 2021
The final hearing reconvened a second time on May 10, 2021. At this hearing,
the Department called Leslie Zuzimbo-Robbins, a caseworker supervisor at the Department.
Zuzimbo-Robbins testified that she was assigned to the case in September 2020 and that she had
observed some of the visits between Mother and N.B. and A.B. Zuzimbo-Robbins explained that
during these visits, the children did not appear to be bonded to Mother and that they were happy
and content with their foster parents. She also testified that since the February hearing, Mother’s
therapist had left the practice group and that Mother had been assigned to a new therapist.
According to Zuzimbo-Robbins, Mother’s new therapist recommended reunification between
Mother and the children but also recommended that “the process should be gradual to eliminate
overwhelming her and the children during the reunification process.” Nevertheless, Zuzimbo-
Robbins explained to the trial court that the Department was still recommending termination of
Mother’s parental rights because “moving these children out of their home that they’ve been in
for almost two years would be detrimental.” At the conclusion of testimony, the trial court urged
the Department to begin unsupervised visits on a weekly basis, and then reset the case for two
months to “see if we’re looking at a monitored return.”
12
Evidence on July 12, 2021
The final hearing reconvened for a third and final time on July 12, 2021. On that
day, the Department called the conservatorship worker most recently assigned to the case,
Jocelyn Pizzaro. She testified that since the previous hearing in May, Mother had continued her
individual therapy with her new therapist and completed her protective parenting classes.
According to Pizarro, Mother’s therapist was recommending unsupervised visits, but “[w]e still
don’t have a recommendation for a monitored return from the therapist.”
Pizarro reported that Mother was now having unsupervised visits with the
children, the visits were going well, and the Department generally was not concerned about the
safety of the children during these visits. Pizarro also testified, however, that the Department
had become concerned about recent actions by M.J. Specifically, the Department learned that,
several weeks before the hearing, M.J. had gone to Mother’s home and broken out her car
window. In addition, M.J. had been leaving Mother harassing and threatening text and voice
messages. Although Mother reported the matter to the police, she had not yet obtained a
protective order and told Pizarro that it was because “she doesn’t have enough for them to put
something in place.”
Pizzaro testified that, as far as she knew, Mother had been trying to keep M.J.
away from her, but Mother’s therapist recommended that any unsupervised visits occur away
from the home until the protective order could be secured. The Department recommended to the
trial court that the children stay in their current placements and that the Department remain as
managing conservator. Pizzaro told the court:
We, [the Department staff], don’t have any doubt that mom loves her children and
that she wants to be with her children. We’re just concerned with the ongoing
safety concerns that pop up throughout the case, and we’re concerned that if the
13
children are brought back to the home that they’re going to be put in the same
position that brought us here in the first place because of [M.J.].
Finally, the Department called the guardian ad litem, Cathy Rothas. When asked
for her recommendation, Rothas informed the court that she did not feel that grounds for
termination existed but that she had “serious concerns about the children being returned to mom
full time.” Rothas explained,
Number one is her work schedule. She works evenings and weekends. She
works a lot of hours. Number two is her support network. Her brother, if I’m not
mistaken, had CPS injury to a child out of Lampasas County. Her child was
injured. That’s how this case started. And then she has CPS history with her
mother as a child. And those are her support people. So those are very
concerning to me.
Additionally, her contact with the Dad, [M.J.]. [Mother’s] phone number and
address have changed, yet [M.J.] is still able to have contact with her. . . .
I really feel like it’s in the best interest and safety of these children that they
remain in their homes and have a relationship with their mom.
The trial court then heard rebuttal testimony from Mother. Concerning the recent
events with M.J., Mother testified that after M.J. moved out of her previous home, he would call
and text her “20 to 30 times a day” and continued to do so throughout 2020 and 2021. Then, two
weeks before the hearing, M.J. went to Mother’s current home and broke a window on her car.
According to Mother’s testimony, she reported the window-breaking incident to police. In
addition, even before the incident, she had contacted the county attorney’s office to obtain a
protective order against M.J., but the prosecuting attorney was out of the office on vacation.
Mother denied informing M.J. of the location of her current home and explained
that she did not know how M.J. found her address. When questioned about why she had not
moved from her current home to get away from M.J., she stated, “Because I need the evidence to
14
prove to the cops. The cops told me that if I moved then there would not be enough evidence to
put the restraining order on him.” When asked whether the police told her not to block him
on her phone, Mother responded, “They told me not to move, they told me not to block him
because there would not be enough evidence against him for the restraining order.” Mother
acknowledged that because of M.J.’s actions, “there [was] a safety concern with her home” and
that the purpose of a protective order was to protect herself and her children.
As to the Department’s and guardian ad litem’s concerns about her work
schedule, Mother testified that if the children were returned to her, she would re-enroll them in
the daycare that they previously attended and that the children had been happy there. She also
testified that she was currently working a lot of hours because she had the time to do so, but that
she would request work hours that aligned with the children’s daycare schedule when they
returned to her care. Finally, Mother denied having contact with her brother who had CPS
history and told the court that while she loved her mother, she would put her children first.
Analysis
To succeed on its request for managing conservatorship, the Department was
required to rebut that presumption that Mother should be appointed sole managing conservator
by presenting a preponderance of credible evidence that Mother engaged in specific, identifiable
behavior demonstrating that naming her as her children’s managing conservator would
significantly impair the children’s physical or emotional development. See Tex. Fam. Code
§ 263.404(a); In re B.B.M., 291 S.W.3d at 467.
The undisputed evidence presented by the Department at the final hearing
establishes that Mother used marijuana in the past, including shortly after A.B. and N.B. were
removed from her custody in April 2019 and while she was pregnant, and that at the time of
15
removal, Mother was not attending to some of the children’s basic needs. In addition, Mother
lived with M.J., who was abusive toward her and the children, and she allowed her children to
remain in that unsafe environment for some unspecified period of time before they were
removed. She also downplayed the incident of abuse toward N.B. that resulted in M.J.’s arrest
and N.B. and A.B.’s removal and continued to live with M.J. for seven months after the removal.
In sum, the evidence in support of the Department’s request for managing conservatorship
establishes that, in the past, Mother had used marijuana and, by not leaving M.J., had failed to
provide her children with a safe and stable home.
On the other hand, the trial court also heard evidence that beginning in
January 2020, Mother made significant progress in changing her past behaviors. Department
representatives testified that since this time, Mother has complied with her family-service plan,
maintained continuous employment, and moved into a two-bedroom home that the Department
considers to be suitable and appropriate for the children. In addition, she obtained a protective
order against M.J. in January 2020, after he assaulted her, and was no longer romantically
involved with him. Mother has consistently attended individual therapy, in which she is
addressing her issues with past marijuana use and relationship choices, and she completed
a protective parenting program. Although neither of Mother’s therapists recommended a
monitored return of the children, her most recent therapist recommended a “gradual
reunification” that would “eliminate overwhelming her and the children,” and the Department
considered her unsupervised visits with the children to be going well. Mother submitted to
weekly drug testing and, with the exception of missing one test, has returned “negative” results
since January 2020. Her only positive test was for marijuana in April 2019. There was no
16
evidence presented suggesting that Mother was ever abusive to the children or that she
committed acts of domestic violence.
By the last day of the final hearing, the primary concern expressed by the
Department was of the continued danger posed by M.J. and, consequently, the safety of Mother’s
home. However, the only evidence of specific acts or omissions by Mother relevant to this
concern was that, although she had reported M.J.’s behavior to the police, she had not yet
obtained a protective order and that, despite months of harassment, she had not moved again or
changed her phone number.
We conclude that the evidence presented by the Department of Mother’s
misconduct—most of which occurred eighteen to twenty-six months before the conclusion of the
final hearing—is factually insufficient to support the trial court’s finding that appointment of
Mother as managing conservator would significantly impair the children’s physical health or
emotional development. See In re S.T., 508 S.W.3d at 492 (in determining whether children
will be significantly impaired, “the material time to consider is the present”). That is, after
considering all of the evidence in a neutral light, we conclude that the overwhelming evidence
shows that Mother has done everything required by her service plan to achieve reunification; that
considering the length of time since her last incident of misconduct, she is presently fit to be the
managing conservator of her children; and that any risk of danger posed by M.J. and by Mother’s
failing to obtain a protective order against him before the final hearing fails to rise above mere
“suspicion or speculation of possible harm.” See In re B.B.M., 291 S.W.3d at 467; Whitworth,
222 S.W.3d at 623 (“The link between the parent’s conduct and harm to the child may not be
based on evidence which merely raises a surmise or speculation of possible harm.”). Therefore,
the trial court’s decision to appoint the Department and not Mother as the children’s permanent
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managing conservator was unreasonable and constitutes an abuse of discretion. We sustain
Mother’s sole issue on appeal.
CONCLUSION
We reverse that portion of the trial court’s decree appointing the Department as
permanent managing conservator of N.B., A.B., and M.S.J. and remand the case to the trial court
for a new trial on the issue of conservatorship.
__________________________________________
Chari L. Kelly, Justice
Before Chief Justice Byrne, Justices Kelly and Triana
Reversed and Remanded
Filed: February 11, 2022
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