in the Interest of F.R.N., a Child

IN THE
TENTH COURT OF APPEALS
No. 10-18-00233-CV
IN THE INTEREST OF F.R.N., A CHILD
From the 74th District Court
McLennan County, Texas
Trial Court No. 2017-1501-3
MEMORANDUM OPINION
Krystle N. appeals from a judgment that named her and Nadine N., her mother-
in-law, joint managing conservators of her daughter, F.R.N., with Nadine having the
exclusive right to establish F.R.N.'s primary residence. Krystle argues that the trial court
erred by finding that Nadine had standing to bring the action, that the trial court abused
its discretion by naming Nadine as a joint managing conservator, and that the trial court
abused its discretion in the admission of hearsay evidence. Because we find no reversible
error, we affirm the judgment of the trial court.
FACTS
Krystle and Matt, Nadine's son, were married at a young age and Krystle got
pregnant with F.R.N. a short time later. From the time of F.R.N.'s birth, there was
evidence that F.R.N. spent a substantial amount of time with Nadine and Jeff, Nadine's
longtime boyfriend, and was spending around half of the time with Nadine by the age of
three or four. Krystle and Matt would go out and "have fun" and leave F.R.N. with
Nadine. Krystle and Matt were financially unstable and would spend their money on
entertainment for themselves, such as tattoos, alcohol, and marijuana, rather than
necessities for their home. Nadine spent substantial sums to assist Krystle and Matt for
the purpose of ensuring F.R.N.'s safety while she was with her parents, including
purchasing a new hot water heater when theirs had been inoperable for a period of time
while they had F.R.N. with them, rent, car payments, and F.R.N.'s schooling. This was in
addition to Nadine having possession of F.R.N. approximately 60 percent of the time
according to Nadine. Nadine had also assisted both Matt and Krystle with employment
opportunities.
In 2015, Matt, and later Krystle, began using marijuana. In late 2016 and early
2017, Krystle started staying out all night and drinking in Austin; and would then drive
back to Waco where they were then living, in the early morning. She was also having sex
with other men prior to Krystle and Matt separating in January of 2017, when Matt moved
to Arkansas. The day that Matt left, Krystle took F.R.N. to Nadine "because she couldn't
stand the sight of her." A witness heard Krystle tell Nadine that she couldn’t handle
F.R.N. and wanted Nadine to watch her. From that time until this proceeding was
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instituted in May of 2017, Nadine and the witnesses she presented testified that F.R.N.
resided primarily with Nadine and Krystle would show up occasionally. Even by
Krystle's admission, F.R.N. resided with Nadine at least half the time. Nadine estimated
that she took care of F.R.N. almost full time, at least five days a week, and sometimes for
longer periods of time.
Prior to this time, F.R.N. was struggling with grades and behavior in school and
had multiple tardies and absences. While residing with Nadine beginning in 2017, her
grades and behavior greatly improved at school. Nadine attended all school functions
and was very active in assisting at F.R.N.'s school. Krystle was very rarely seen picking
F.R.N. up from school and did not attend any school functions.
Krystle admitted to various people that she was drinking heavily, driving while
intoxicated at times, using drugs, and engaging in sexual relationships while F.R.N. was
with Nadine. One time a witness smelled alcohol on Krystle's breath while she had been
driving with F.R.N. in the car with her.
When Krystle would go out of town, Nadine would have access to Krystle's
residence to feed her dogs. Nadine found marijuana products in Krystle's residence twice
in locations that would have been easily accessible to F.R.N. Nadine found edible
marijuana which was wrapped to look like candy on her bedside table in her bedroom.
Nadine and Jeff also found marijuana "dabs" in her refrigerator. Both times, they
disposed of the marijuana rather than reporting her to law enforcement or CPS. At trial,
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Krystle admitted to using marijuana more than ten times. Nadine found evidence in
Krystle's messenger app which Krystle had left open on Nadine's cell phone that she had
used marijuana more than twenty times in early 2017.
On May 2, 2017, Krystle took F.R.N. shopping with her at Target and stole a doll
which she gave to F.R.N. Krystle joked with Nadine later that children provide a great
distraction to stealing items from a store. F.R.N. was confused about taking items versus
paying for them from this incident.
Nadine filed a petition seeking to be given the right to establish the residence of
F.R.N. on May 5, 2017, asserting that F.R.N. would not be safe residing with Krystle.
Affidavits from Nadine and Matt were attached to the petition. The trial court conducted
the first temporary hearing on May 20, 2017, and after taking the matter under
advisement, named Nadine and Krystle as joint managing conservators with Nadine
having the right to establish F.R.N.'s residence and Krystle having visitation pursuant to
a standard possession order.
When Krystle would have F.R.N. for extended visits pursuant to the temporary
orders, F.R.N. was returned to school at different times in dirty clothes, unbathed,
smelling badly, and with her hair unfixed, which was upsetting and embarrassing to
F.R.N., who was then six years old. One time she was returned with abscesses on her
feet, which Nadine believed was due to dog feces that had been left on the floor of F.R.N.'s
bathroom. After visits, F.R.N. would be angry and emotional and hard to control. F.R.N.
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at times would have bruises that a witness testified that F.R.N. had told her one time was
caused by Krystle kicking her repeatedly, although F.R.N. said it was her fault that
Krystle was mad. F.R.N. also lost a baby tooth that was not loose when Krystle picked
her up, which she said was caused by walking into a door. F.R.N. also alleged that other
bruises had also been caused by walking into a door. There was a report made to CPS,
but it was ruled out because F.R.N. did not make an outcry against her mother and CPS
did not find any other concerns.
F.R.N. was evaluated for autism by a child psychologist, who determined that
F.R.N. did not meet the criteria to be diagnosed with autism at that time. Other testing
and diagnostics was conducted, and the psychologist determined that F.R.N. suffers from
Reactive Attachment Disorder (RAD), which was based in large part on the instability in
her life from her parents. In reaching this determination, the psychologist’s report stated
that:
[F.R.N.] exhibits a pattern of inhibited and erratic emotionally-withdrawn
behaviors toward adult caregivers, manifested by her hesitance and
atypical response to seeking and receiving comfort when distressed. She
demonstrates a pattern of social and emotional disturbances characterized
by reduced emotional responsiveness to others and episodes of
unexplained irritability, anger, sadness, and fearfulness that she expresses
even during nonthreatening interactions with adult caregivers.
The psychologist testified at the final hearing that children who are diagnosed
with RAD require therapeutic intervention and "an environment that's consistent and
predictable and structured." Failure to address this disorder can have far-reaching
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serious consequences into adulthood. The psychologist opined that Nadine's
"consistency" and "predictability" at home and at her school were helping F.R.N.'s
behavior to improve and that to remove her from Nadine's home would be especially
detrimental to F.R.N. The psychologist also testified that removing F.R.N. from her
school would be extremely detrimental to her and would greatly increase her anxiety.
The psychologist began seeing F.R.N. for therapy after the evaluation. Improvements
made by F.R.N. during therapy were attributed to having a stable, consistent and
predictable home life.
During one session, F.R.N. admitted to the psychologist that Krystle and Nadine
don't like each other and that she was extremely fearful of not seeing either one of them
again. F.R.N. told the psychologist that Krystle had told her that after Christmas that
year she would never see Nadine again, which caused F.R.N. great anxiety. F.R.N. was
very anxious about potentially being removed from Nadine's home.
Krystle was living in Austin at the time of the final hearing and witnesses testified
that she was stable and doing well there. The CPS investigator who investigated the
allegations against Krystle testified that the Department did not have any concerns about
Krystle's parenting. There was testimony that marijuana use is not considered to be a
negative thing in the Austin area as long as the children are not directly harmed by its
use. The psychologist testified that there were no concerns specifically after Krystle's
visits with F.R.N. that would rise to the level of intentionally causing significant
In the Interest of F.R.N., a Child Page 6
impairment to F.R.N., although the psychologist still believed that F.R.N. should be
placed with Nadine.
STANDING
In her first issue, Krystle complains that the trial court erred by determining that
Nadine had standing to bring this action because there was insufficient evidence of
significant impairment of F.R.N. Nadine alleged that she had standing based on Section
102.004(a)(1) of the family code which states that a grandparent may file an original suit
requesting managing conservatorship of a child if there is satisfactory proof that "the
order is necessary because the child's present circumstances would significantly impair
the child's physical health or emotional development." TEX. FAM. CODE ANN. §
102.004(a)(1).
We review questions of standing de novo. In re S.M.D., 329 S.W.3d 8, 13 (Tex.
App.—San Antonio 2010, pet. dism'd). The party asserting standing bears the burden of
proof on this issue. Id. In assessing standing, we look primarily to the pleadings and
consider relevant evidence of jurisdictional facts "when necessary to resolve the
jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).
We construe the pleadings in the petitioner's favor, looking to the language to ascertain
the pleader's intent. In re M.J.G., 248 S.W.3d 753, 757 (Tex. App.—Fort Worth 2008, no
pet.); Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.—El Paso 2002, no pet.). In family
law cases in which a petitioner must go beyond mere pleading allegations and provide
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"satisfactory proof" of jurisdictional facts to establish statutory standing, the petitioner
meets that burden where those predicate facts are proven by a preponderance of the
evidence. In re S.M.D., 329 S.W.3d at 13. As in this case, when the trial court does not
make separate findings of fact and conclusions of law on the issue of standing, "we imply
the findings necessary to support the judgment . . . [and] review the entire record to
determine if the trial court's implied findings are supported by any evidence." Id.
We find that, based on our review of the entire record, Nadine proved by a
preponderance of the evidence that she had standing to bring this action. At the time of
the filing of the petition, Krystle had largely left the care and responsibility of F.R.N. with
Nadine while she engaged in harmful, immoral, and in some instances, illegal conduct.
Because the trial court is charged with the duty to make credibility determinations, and
in the absence of findings of fact and conclusions of law, we find that the trial court's
determination and the implied findings necessary to support the determination that
appointment of Krystle as a sole managing conservator would significantly impair
F.R.N.'s physical health or emotional well-being were supported by the evidence. We
overrule issue one.
JOINT MANAGING CONSERVATORS
In her second issue, Krystle complains that the trial court abused its discretion by
naming Nadine a joint managing conservator of F.R.N. because the evidence did not
support a finding of significant impairment of F.R.N., and Nadine did not overcome the
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parental presumption.
We review the trial court's conservatorship determination for abuse of discretion.
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982). Under this standard, legal and factual sufficiency challenges are not independent
grounds of error but factors used to determine whether the trial court abused its
discretion. In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2016, pet.
denied); In re E.S.H., No. 11-14-00328-CV, 2015 Tex. App. LEXIS 4908, 2015 WL 2353349,
at *1 (Tex. App.—Eastland May 14, 2015, no pet.) (mem. op.). A trial court abuses its
discretion by acting unreasonably, arbitrarily, or without reference to guiding principles.
In re K.S., 492 S.W.3d at 426. "A trial court does not abuse its discretion if there is some
evidence of a substantive and probative character to support its decision." Id. However,
the best interest of the child is always the primary consideration of the court in
determining managing conservatorship. TEX. FAM. CODE ANN. §153.002.
Although trial courts are afforded broad discretion in deciding family law
questions, the legislature has explicitly limited the exercise of that discretion when a
nonparent seeks to be appointed as a managing conservator. Danet v. Bhan, 436 S.W.3d
793, 796 (Tex. 2014). When a court determines conservatorship between a parent and a
nonparent, a presumption exists that appointing the parent as the sole managing
conservator is in the child's best interest; this presumption is deeply embedded in Texas
law. TEX. FAM. CODE ANN. § 153.131; Danet, 436 S.W.3d at 796. Section 153.131(a)
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provides:
[U]nless the court finds that appointment of the parent or parents would
not be in the best interest of the child because the appointment would
significantly impair the child's physical health or emotional development,
a parent shall be appointed sole managing conservator or both parents shall
be appointed as joint managing conservators of the child.
TEX. FAM. CODE ANN. § 153.131(a).
The statutory language in Section 153.131(a) creates a strong presumption in favor
of parental custody and imposes a heavy burden on a nonparent. Lewelling v. Lewelling,
796 S.W.2d 164, 167 (Tex. 1990). The nonparent may rebut the presumption with
affirmative proof, by a preponderance of the evidence, that appointing the parent as
managing conservator would significantly impair the child, either physically or
emotionally. Id.; see also In re J.A.J., 243 S.W.3d at 616. Usually, the nonparent must
present evidence that shows a parent's acts or omissions will have a detrimental effect on
the children's physical health or emotional development. In re S.T., 508 S.W.3d 482, 492
(Tex. App.—Fort Worth 2015, no pet.); see Lewelling, 796 S.W.3d at 167. Evidence of acts
or omissions that may constitute significant impairment include, but are not limited to,
physical abuse, severe neglect, drug or alcohol abuse, immoral behavior, parental
irresponsibility, and an unstable home environment. In re S.T., 508 S.W.3d at 492. While
not determinative, a parent's past conduct may have some bearing on future conduct. See
In re B.B.M., 291 S.W.3d 463, 469 (Tex. App.—Dallas 2009, pet. denied).
There was conflicting testimony regarding Krystle's care of F.R.N. physically and
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emotionally both before and after the filing of the petition. Regarding F.R.N.'s emotional
development, the trial court heard testimony about the emotional instability that was
caused by Krystle and Matt's instability prior to their separation, and Krystle's
breakdown following their separation. Following visits with Krystle, F.R.N. was often
withdrawn and acted very differently. Matt, Nadine, Jeff, and the child psychologist all
testified that F.R.N.'s emotional well-being would be significantly impaired if Krystle was
appointed as F.R.N.'s sole managing conservator. Evidence of uncharacteristic behavior
after the child's visit with a parent is some evidence of significant impairment of
emotional development. See In re J.C., 346 S.W.3d 189, 195 (Tex. App.—Houston [14th
Dist.] 2011, no pet.).
This is not merely a situation where a child will be sad if they are not allowed to
see their grandparents where the parents have otherwise acted in the child's best
interests. The RAD was the result of the instability caused by Krystle and Matt's failure
to be responsible parents throughout F.R.N.'s life, which worsened substantially after
their separation, contrasted with Nadine's establishment of her home as a stable and
predictable place for F.R.N. The evidence shows that removing F.R.N. from the only
consistent home she has ever known due to Krystle's life choices would substantially
impair F.R.N.'s emotional well-being.
After reviewing the record, we hold that the trial court did not abuse its discretion
when it appointed Nadine to be a joint managing conservator with Krystle and to name
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her as the party with the right to establish F.R.N.'s residence. The evidence supports the
trial court's implied findings that F.R.N.'s physical health or emotional development
would be significantly impaired if Krystle were appointed as the sole managing
conservator. Therefore, Nadine sufficiently rebutted the parental presumption. See TEX.
FAM. CODE ANN. §153.131(a). We overrule issue two.
ADMISSION OF EVIDENCE
In her third issue, Krystle complains that the trial court abused its discretion by
the admission of hearsay testimony by F.R.N. to two witnesses. The first objectionable
testimony was regarding when F.R.N. told a friend of Nadine's that her mother had
kicked and hit her which caused her to be bruised all over. The second was when F.R.N.
told Nadine about being embarrassed to give Krystle a picture F.R.N. had drawn that
showed a "rash" around Krystle's neck which Nadine surmised were really hickeys.
We review a trial court's evidentiary ruling for an abuse of discretion. Whirlpool v.
Camacho, 298 S.W.3d 631, 638 (Tex. 2009). If the trial court abuses its discretion in an
evidentiary ruling, the complaining party must still show harm on appeal to warrant
reversal. See TEX. R. APP. P. 44.2(a); see also Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667
(Tex. 2009). Harmful error is error that "probably caused the rendition of an improper
judgment." TEX. R. APP. P. 44.1(a); see McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).
In other words, "[w]e review the entire record, and require the complaining party to
demonstrate that the judgment turns on the particular evidence admitted." Nissan Motor
In the Interest of F.R.N., a Child Page 12
Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004).
Even if the admission of the complained-of testimony was erroneous, we do not
find that Krystle was harmed by the admission of the evidence. Based on the discussion
of the evidence and the facts set forth above, neither instance of testimony has been
shown to be evidence "that the judgment turn[ed] on." Nissan Motor Co., 145 S.W.3d at
144. We overrule issue three.
CONCLUSION
Having found no reversible error, we affirm the judgment of the trial court.
TOM GRAY
Chief Justice
Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed August 7, 2019
[CV06]
In the Interest of F.R.N., a Child Page 13