in the Interest of M. A. and H. L. A., Children

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
______________________________
No. 06-10-00062-CV
______________________________
IN THE INTEREST OF M.A. AND H.L.A., CHILDREN
On Appeal from the 102nd Judicial District Court
Bowie County, Texas
Trial Court No. 09C0927-102
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Moseley
MEMORANDUM OPINION
This is an appeal of a final order in a suit affecting the parent-child relationship brought by
Ashley Thomas, the mother of M.A. and H.L.A., minor children. Michael and Sandra Garrett
(who characterize themselves in trial court pleadings as the children‟s “Godgrandparents”) filed a
petition seeking to be appointed nonparent joint managing conservators. In their pleadings, the
Garretts alleged that they had the actual care, control, and possession of the children for a period
exceeding ninety days before the suit was filed. After a hearing, the trial court signed a final order
finding the allegations in the Garretts‟ petition to be true, appointing the Garretts nonparent joint
managing conservators, appointing Thomas possessory conservator, and ordering Thomas‟
visitation to be both restricted and supervised. Thomas timely filed a notice of appeal.
In her pro se brief, Thomas states she filed an appeal because of the “lack of witnesses” and
the fact that “none of my [accomplishments] or effort in trying to have my children home” were
presented to the trial court. We have construed Thomas‟ briefing as a complaint that the trial
court abused its discretion in appointing the Garretts as joint managing conservators and
challenging the sufficiency of the evidence to support the trial court‟s implied findings. The
Garretts failed to timely file an appellees‟ brief. See TEX. R. APP. P. 38.6. After giving the
Garretts notice, we set this cause for submission without an appellees‟ brief.
Section 153.131 of the Texas Family Code creates a rebuttable presumption that the
appointment of the parents as managing conservators is in the best interest of the child. TEX.
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FAM. CODE ANN. § 153.131(a) (Vernon 2008); In re M.T.C., 299 S.W.3d 474, 481 (Tex.
App.––Texarkana 2009, no pet.). Although Section 153.372 authorizes a trial court to appoint
nonparents as joint managing conservators if such an appointment is in the best interest of the
child,1 Section 153.131 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). “[I]n an original proceeding for a conservatorship
determination, even „evidence that the nonparent would be a better custodian‟ is insufficient to
support the appointment of a nonparent as managing conservator in preference to a parent.”
M.T.C., 299 S.W.3d at 481 (quoting Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)).
“Rather, the nonparent is required to „affirmatively prove by a preponderance of the evidence that
appointment of the parent as managing conservator would significantly impair the child, either
physically or emotionally.‟” Id. (quoting Lewelling, 796 S.W.2d at 167).
We further note the trial court made no explicit finding that the appointment of Thomas as
a managing conservator would significantly impair the child, either physically or emotionally.
On the other hand, Thomas did not request the trial court to issue findings of fact or conclusions of
1
TEX. FAM. CODE ANN. § 153.372(a) (Vernon 2008).
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law.2 This Court has recognized that when no findings of fact or conclusions of law are requested
or filed, “it is therefore implied the trial court made all the findings necessary to support its
judgment.” In re Naylor, 160 S.W.3d 292, 294 (Tex. App.––Texarkana 2005, pet. denied); see
Agraz v. Carnley, 143 S.W.3d 547, 554 (Tex. App.––Dallas 2004, no pet.).
A trial court‟s order regarding conservatorship is reviewed under an abuse of discretion
standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie, 644 S.W.2d 449,
451 (Tex. 1982). A trial court abuses its discretion if it acts arbitrarily and unreasonably or
without reference to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d
238, 241–42 (Tex. 1985). The legal and factual sufficiency of the implied findings may be
challenged on appeal. Agraz, 143 S.W.3d at 554. A finding that the appointment of a parent as
managing conservator would significantly impair the child‟s physical health or emotional
development is governed by a preponderance-of-the-evidence standard. TEX. FAM. CODE ANN.
§ 105.005 (Vernon 2008); J.A.J., 243 S.W.3d at 616.
Further, Thomas has not provided this Court with a reporter‟s record for this appeal. If the
record is incomplete and the appellant has not complied with TEX. R. APP. P. 34.6(c), the appellate
court must presume that the omitted evidence supports the judgment or order from which the
appeal is taken. In re Estate of Arrendell, 213 S.W.3d 496, 503 (Tex. App.––Texarkana 2006, no
2
Findings of fact “shall not be recited in a judgment,” but are required to be filed separately. TEX. R. CIV. P. 299a.
“The legislature made it clear in enacting the family code that, unless expressly provided otherwise, suits affecting the
parent-child relationship are to be governed by the same rules of procedure as those generally applied to other civil
cases.” In re E.A.C., 162 S.W.3d 438, 442 (Tex. App.––Dallas 2005, no pet.) (citing TEX. FAM. CODE ANN.
§ 109.002(a) (Vernon 2008)).
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pet.); see Bennett v. Cochran, 96 S.W.3d 227, 230 (Tex. 2002); Schafer v. Conner, 813 S.W.2d
154, 155 (Tex. 1991). We are unable to conclude the trial court abused its discretion. Thomas‟
issues are overruled.
For the reasons stated, we affirm the judgment of the trial court.
Bailey C. Moseley
Justice
Date Submitted: November 18, 2010
Date Decided: November 19, 2010
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