in the Interest of A v. a Child

Reversed, Remanded, and Opinion Filed July 15, 2022
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00966-CV
IN THE INTEREST OF A.V., A CHILD
On Appeal from the 469th Judicial District Court
Collin County, Texas
Trial Court Cause No. 469-50370-2020
MEMORANDUM OPINION
Before Chief Justice Burns, Justice Schenck, and Justice Partida-Kipness
Opinion by Justice Partida-Kipness
This appeal involves a final order in an original suit affecting the parent-child
relationship (SAPCR) in which the trial court appointed the child’s maternal
grandparents1 sole managing conservators and appointed the child’s mother a
possessory conservator. Mother appeals the SAPCR order and maintains she should
have been named the child’s sole managing conservator. After reviewing the briefs
and the record, we conclude the trial court abused its discretion. We reverse the
SAPCR order and remand for further proceedings consistent with this opinion.
1
To protect the identity of the child, we refer to her as A.V. See TEX. R. APP. P. 9.8(b)(2). We will refer
to A.V.’s mother as “Mother,” her grandparents collectively as “Grandparents” and individually as
“Grandmother” or “Grandfather,” and other family members with corresponding aliases. See id.
BACKGROUND
Mother gave birth to A.V. in January 2016, when Mother was eighteen years
old. She and A.V. lived with Grandparents until A.V. was six months old. Mother
then moved into an apartment. Mother testified that A.V. moved with her, but
Grandmother testified that A.V. continued to live with Grandparents. Regardless,
Mother and Grandparents agree they planned for A.V. to live with Mother in the
future. According to Grandmother, they agreed that Mother would take the baby
“once she got set up,” and Grandparents would still help Mother by picking the baby
up from day care “and that kind of stuff, but the baby was going to live with her
eventually.”
A.V. continued to live with Grandparents during the following three and a half
years. Mother also lived with them at times. The evidence does not show specific
dates during which Mother lived with Grandparents and A.V. between July 2016,
and September 2019. The record does show, however, that Mother lived at
Grandparents’ home either exclusively or for extended periods between September
2019, and January 9, 2020. Grandmother testified that Mother lived with her and her
husband “for a short time” before they filed the SAPCR petition on January 21, 2020.
She did not testify as to what specific dates Mother lived with them prior to filing
the petition. But the parties agree that Mother moved out following an argument with
Grandmother on January 9, 2020, which was twelve days before Grandparents filed
the SAPCR petition. Other evidence indicates Mother lived with Grandparents for a
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few months before the January 9, 2020 argument. For example, Mother testified that
her relationship with her parents had become “toxic” and had “ended” months before
the argument, but she remained in their home and “tried to stick it out because I felt
like I had nowhere to go.” Text messages presented by Grandparents at trial show
Mother was living with Grandparents in September 2019, four months before
Grandparents filed the SAPCR petition. Further, in her affidavit in support of the
SAPCR petition, Grandmother describes incidents that occurred at their home in
November 2019, and December 2019, when Mother was living with A.V. and
Grandparents.
In January 2020, Mill Creek Residential hired Mother to work as an assistant
property manager at one of the company’s properties in Seattle, Washington. The
job paid Mother $50,000 annually plus a fifty percent discount on rent at the
property. Mother testified that she planned to move to Seattle with A.V. so her
daughter “could experience stability” with Mother and to get away from the “toxic
environment” Mother experienced living with Grandparents. On January 9, 2020,
Mother told Grandmother about the Seattle job and her plans to move there with
A.V. The women argued. Mother recorded the argument. The recordings capture
both women yelling angrily at each, Mother accusing Grandmother of hitting her,
and Mother telling Grandmother to stop touching her. Mother testified that the
argument became physical. According to Mother, Grandmother slapped her, pushed
her on the bed, and pinned her down. Grandmother denies hitting Mother and
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maintains that the “slapping and hitting sounds” heard on the recording are her trying
to get her phone back from Mother. Mother moved out of the house following the
argument.
Grandparents filed their original SAPCR petition on January 21, 2020. They
cited Mother’s plans to move to Seattle with A.V. as a basis for obtaining a
temporary restraining order. Grandmother asserted in an affidavit that Mother “has
never taken care of [A.V.],” and claimed that Mother “is very unstable, impulsive
and reckless,” and “very emotional, volatile, and has a drinking problem.” The trial
judge signed a temporary restraining order on January 22, 2020, which excluded
Mother from possession of or access to A.V. Mother began her new job in Seattle
on January 31, 2020. Within weeks, lockdowns began related to the Covid-19
pandemic. This prevented Mother from travelling to Dallas to see A.V. Mother
moved back to Dallas April 21, 2020, after her employer agreed to transfer Mother
so she could be closer to A.V.
A bench trial was held on June 22, 2020. At that time, Mother was still
employed by Mill Creek Residential as an assistant property manager at a residential
property in the Lakewood area of Dallas. Mother initially lived at the Dallas property
when she moved back to Dallas in April 2020. But by the time of trial, Mother and
her fiancée had signed a one-year lease on a house in McKinney, Texas and moved
in to the house. Mother testified that she decided to live in McKinney rather than
stay in the Dallas apartment because McKinney was close to A.V. and she did not
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want A.V. to have to change schools to live with Mother. Mother further testified
that her manager wanted to promote her to property manager, and Mother believes
she has a future with that employer.
At trial, Grandparents told the trial court that they each believe it is in A.V.’s
best interest for Grandparents to be her sole managing conservators and for Mother
to pay them child support. Grandmother testified that she had two concerns about
A.V. living with Mother. First, she did not want A.V. to live with Mother and her
fiancée because the fiancée is “a stranger” to A.V. and Grandparents, and Mother
had only known her fiancée since February 2020. Grandmother’s second concern
was that she did not know if Mother’s job will last. Grandfather testified that he did
not think Mother “is responsible enough” to have a child on a full-time basis. He
based this assessment on prior incidents where Mother chose to go out with friends
rather than visit A.V., said she did not want to be a mother, and spent time on her
phone during visits with A.V. He also expressed concern that Mother’s current
romantic relationship would not last because her prior relationships intensified
quickly and then ended within three to six months. Grandfather testified that two of
Mother’s prior relationships ended after the romantic partner physically assaulted
Mother.
At the conclusion of the bench trial on Grandparents’ SAPCR petition, the
trial court took the matter under advisement. On July 1, 2020, the trial court issued
a “Court’s Memorandum” setting out its general rulings. Mother filed a motion for
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reconsideration, which the trial court denied on October 2, 2020. The trial court
signed its Final Order in the SAPCR on October 9, 2020. The Final Order appoints
Grandparents the sole managing conservators of A.V., and Mother a possessory
conservator of A.V. and found those appointments to be in A.V.’s best interest. The
court stated its finding that Mother “voluntarily relinquished actual care, control, and
possession of the child” to Grandparents “for a period of one year or more, a potion
[sic] of which was within 90 days preceding the date of filing” the SAPCR petition.
The trial court ordered that Mother’s visits with A.V. be supervised based on the
court’s finding “that credible evidence has been presented that there is a history or
pattern of child neglect committed by” Mother. The trial court also ordered Mother
to pay Grandparents child support, set out a possession schedule, and made other
orders not at issue here.
Mother requested findings of fact and conclusions of law, which the trial court
issued on November 17, 2020. The findings and conclusions relevant to the issues
raised on appeal include the following:
 Mother “voluntarily relinquished all control and care of” A.V. to
Grandparents.
 Mother’s “actions have shown she is incapable of providing a
safe and stable environment for the child.”
 Mother’s past romantic relationships with six partners “involved
violence or ended in violence.”
 “[O]ver the course of the child’s life [Mother] has neglected the
child.”
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 Appointing Mother 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.”
 Mother “has voluntarily relinquished actual care, control and
possession of the child to [Grandparents] for a period in excess
of one year and the appointment of [Grandparents] is in the best
interest of the child.”
 Mother “has not acted in the best interest of the child and
[Grandparents] have overcome the presumption that [Mother] is
a fit parent that has acted in the best interest of the child. Troxel
v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L. Ed. 2d 49(2000).”
Mother timely appealed the SAPCR order. On appeal, Mother contends the trial
court abused its discretion by appointing Grandparents joint managing conservators
and entering a possession schedule that deviates from the standard possession order.
She maintains the evidence was insufficient to support the trial court’s determination
that Grandparents overcame the constitutional fit-parent presumption and statutory
parental presumption, and challenges the corresponding findings of fact and
conclusions of law.
STANDARD OF REVIEW
We review a trial court’s conservatorship determination for abuse of
discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). We may reverse the trial
court’s ruling only if it is arbitrary and unreasonable. Id. Legal and factual
sufficiency are not independent grounds of error in conservatorship cases but are
relevant factors in determining whether an abuse of discretion occurred. In re J.R.,
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No. 05-19-00904-CV, 2020 WL 219315, at *3 (Tex. App.—Dallas Jan. 15, 2020,
no pet.) (mem. op.); In re L.W., No. 02-16-00091-CV, 2016 WL 3960600, at *2
(Tex. App.—Fort Worth Jul. 21, 2016, no pet.) (mem. op.). To determine whether
the trial court abused its discretion because the evidence was insufficient to support
its decision, we consider whether the trial court (1) had sufficient evidence upon
which to exercise its discretion and (2) erred in its exercise of that discretion. In re
J.R., 2020 WL 219315, at *3. We conduct the applicable sufficiency review with
regard to the first question. Id. We then determine whether, based on the elicited
evidence, the trial court made a reasonable decision. Id. The trial court is the sole
judge of the credibility of the witnesses and the weight to be given their testimony.
In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet. denied).
Trial court findings concerning conservatorship are reviewed under a
preponderance-of-the-evidence standard. See In re J.A.J., 243 S.W.3d at 616 ( “[A]
finding that 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.”). The heightened standards of proof and
review for termination decisions do not apply. Id. Instead, conservatorship
determinations “are subject to review only for abuse of discretion, and may be
reversed only if the decision is arbitrary and unreasonable.” Id.; In re A.M., No. 05-
19-00412-CV, 2019 WL 4071998, at *3 (Tex. App.—Dallas Aug. 29, 2019, no pet.)
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(mem. op.); In re L.W., No. 02-16-00091-CV, 2016 WL 3960600, at *1 (Tex.
App.—Fort Worth Jul. 21, 2016, no pet.) (mem. op.).
APPLICABLE LAW
The United States Supreme Court has long held that the Constitution “protects
the fundamental right of parents to make decisions concerning the care, custody, and
control of their children.” In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (quoting
Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L. Ed. 2d 49 (2000)
(plurality opinion)). To protect that right, a plurality in Troxel applied “a
presumption that fit parents act in the best interest of their children.” Troxel, 530
U.S. at 68. This “fit parent” presumption was formally recognized by the Supreme
Court of Texas in 2020. In re C.J.C., 603 S.W.3d at 807.
The Texas Supreme Court has similarly recognized that “[t]he presumption
that the best interest of the child is served by awarding custody to [a] parent is deeply
embedded in Texas law.” In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) (citing
Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)); In re A.M., 643 S.W.3d
226, 227 (Tex. App.—Dallas 2022, no pet.). The government may not “infringe on
the fundamental right of parents to make child rearing decisions simply because a
state judge believes a ‘better decision’ could be made.” In re Derzapf, 219 S.W.3d
327, 333 (Tex. 2007) (per curiam) (quoting Troxel, 530 U.S. at 72–73, 120 S.Ct.
2054).
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In order to avoid an unconstitutional application of the family code as to
grandparents, a court must require a grandparent to “overcome the presumption that
a fit parent acts in the best interest of his or her child.” In re Pensom, 126 S.W.3d
251, 256 (Tex. App.—San Antonio 2003, no pet.). To overcome the fit-parent
presumption, “a grandparent has the burden to prove, by a preponderance of the
evidence, either that the parent is not fit, or that denial of access by the grandparent
would significantly impair the child’s physical health or emotional well-being.” Id.
at 256. “[S]o long as a parent adequately cares for his or her children (i.e., is fit),
there will normally be no reason for the State to inject itself into the private realm of
the family.” In re Mays–Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel,
530 U.S. at 68, 120 S.Ct. 2054); see also Troxel, 530 U.S. at 72–73, 120 S.Ct. 2054(noting that the constitution “does not permit a State to infringe on the fundamental
right of parents to make child rearing decisions simply because a state judge believes
a ‘better decision’ could be made”).
Texas also has a statutory parental presumption running parallel to the fit-
parent presumption. Section 153.131 of the Texas Family Code requires that a
child’s parent “be appointed sole managing conservator” or both parents appointed
joint managing conservators in initial child custody suits unless the appointment
“would significantly impair the child’s physical health or emotional development.”
TEX. FAM. CODE § 153.131(a); In re C.J.C., 603 S.W.3d at 807 (noting statutory
parental presumption is parallel to the constitutional fit parent presumption). The
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family code, thus, presumes that the appointment of “the parents of a child” as joint
managing conservators is in the child’s best interest. Critz v. Critz, 297 S.W.3d 464,
470 (Tex. App.—Fort Worth 2009, no pet.). To overcome this presumption, a court
must find that (1) appointing the parents would significantly impair the child’s
physical health or emotional development, (2) the parents have exhibited a history
of family violence, or (3) the parents voluntarily relinquished care, control, and
possession of the child to a non-parent for a year or more. Id.; see TEX. FAM. CODE
§ 153.131.
ANALYSIS
In three issues, Mother contends the trial court abused its discretion by (1)
determining that Grandparents rebutted the constitutional fit-parent presumption set
out in Troxel and CJC, (2) concluding that Grandparents rebutted the statutory
parental presumption contained in section 153.131 of the family code, and (3)
awarding Mother less than the standard possession order and requiring possession
be supervised. We address each issue in turn.
I. Constitutional fit parent presumption under Troxel and CJC
In her first issue, Mother argues the trial court abused its discretion by
awarding Grandparents possession and conservatorship rights because they did not
overcome the presumption that a fit parent acts in a child’s best interest. We agree.
The Texas Supreme Court’s decision in C.J.C. forecloses consideration of
Grandparents as managing conservators over a fit parent’s objection unless
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Grandparents overcome the presumption that Mother, as a fit parent, acts in A.V.’s
best interest. See C.J.C., 603 S.W.3d at 820 (“When a nonparent requests
conservatorship or possession of a child, the child’s best interest is embedded with
the presumption that it is the fit parent—not a court—who makes the determination
whether to allow that request.”). To overcome the fit-parent presumption,
Grandparents had “the burden to prove, by a preponderance of the evidence, either
that the parent is not fit, or that denial of access by the grandparent would
significantly impair the child’s physical health or emotional well-being.” In re
Pensom, 126 S.W.3d at 256. Here, Mother did not seek to deny Grandparents access
to A.V. Rather, she objected to Grandparents being named sole managing
conservators. Grandparents were, therefore, required to prove by a preponderance of
the evidence that Mother was an unfit parent. See id.The fit-parent presumption recognized in C.J.C. “means that parents enjoy a
presumption that they are fit and able to make decisions regarding their children
unfettered by government intrusion.” In re C.D.C., No. 05-20-00983-CV, 2021 WL
346428, at *1 (Tex. App.—Dallas Feb. 2, 2021, no pet.) (mem. op.). In re C.J.C.
“does not provide guidance on the quantum of evidence necessary to overcome the
presumption.” Id. at *2. However, “so long as a parent adequately cares for his or
her children (i.e., is fit), there will normally be no reason for the State to inject itself
into the private realm of the family.” See In re Mays–Hooper, 189 S.W.3d at 778; In
re B.A.B., No. 07-21-00259-CV, 2022 WL 1687122, at *5 (Tex. App.—Amarillo
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May 26, 2022, no pet. h.) (mem. op.) (“the trial court cannot supplant Father’s
fundamental rights to make child rearing decisions for [the child] simply because the
court believes the Rosses would be a better choice. Instead, the Rosses were required
to present sufficient evidence to overcome the presumption that Father is a fit
parent.”). To prove Mother unfit here, Grandparents had the burden to prove that
Mother cannot adequately care for A.V. See In re Mays–Hooper, 189 S.W.3d at 778.
see also Troxel, 530 U.S. at 72–73 (noting that the constitution “does not permit a
State to infringe on the fundamental right of parents to make child rearing decisions
simply because a state judge believes a ‘better decision’ could be made”). We
conclude the record shows they failed to meet that burden of proof.
In its conclusions of law, the trial court concluded that Mother “has not acted
in the best interest of the child and [Grandparents] have overcome the presumption
that [Mother] is a fit parent that has acted in the best interest of the child. Troxel v.
Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L. Ed. 2d 49 (2000).” The trial court
made no findings, however, that Mother cannot adequately care for A.V. and, as a
result, is an unfit parent. Indeed, Grandparents did not contend in the trial court that
Mother is unfit. Rather, Grandparents’ evidence focused on their consistent presence
in A.V.’s life as her primary caregivers and their concerns that neither Mother’s
employment nor romantic partnership with her fiancée would last. They presented
no evidence, however, to contradict Mother’s testimony that her job and her
relationship with her fiancée were both stable and thriving. The only evidence
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presented on those issues showed that, at the time of trial, Mother was able to
adequately care for A.V. Mother had a steady job with a substantial income at which
she was up for a promotion, was engaged to be married, and was living in a three
bedroom and two bath house under a one-year lease with her fiancée who was also
gainfully employed. Moreover, in the months leading up to the underlying litigation,
Mother was living with Grandparents and A.V., obtained the job in Seattle, and
consistently told Grandparents that she wanted to care for A.V. on her own in Seattle.
Although Mother permitted Grandparents to care for A.V. for most of the child’s
life, we cannot conclude that doing so makes Mother an unfit parent. Her past
actions, standing alone, cannot support a finding that Mother was unfit at the time
of trial. Critz, 297 S.W.3d at 475 (“If the parent is presently a suitable person to have
custody, the fact that there was a time in the past when the parent would not have
been a proper person to have such custody is not controlling.”); In re S.T., 508
S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.) (the relevant time period is
the present).
Further, by relying on Grandparents’ help before she was financially and
emotionally able to fully care for A.V. on her own, Mother ensured A.V. was
adequately cared for and, in doing so, acted in the child’s best interest. Under this
record, we conclude Grandparents failed to meet their burden to prove Mother is an
unfit parent. The trial court, therefore, abused its discretion by concluding
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Grandparents had overcome the constitutional fit-parent presumption set out in
Troxel and C.J.C. We sustain Mother’s first issue.
II. Statutory parental presumption
Next, Mother asserts the trial court abused its discretion by concluding that
Grandparents rebutted the family code’s statutory parental presumption. TEX. FAM.
CODE § 153.131(b). We agree.
Section 153.131 of the family code sets out a rebuttable presumption that it is
in the best interest of the child for the parents of the child to be appointed as joint
managing conservators. TEX. FAM. CODE § 153.131(b). In light of this presumption,
a parent shall be appointed sole managing conservator or both parents shall be
appointed as joint managing conservators “unless 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 . . . ” TEX. FAM. CODE § 153.131(a).
Once evidence contradicting the presumption is offered, however, the
presumption disappears and has no effect on the burden of persuasion. Choyce v.
Dallas Cty. Child Welfare Unit, 642 S.W.2d 559, 561 (Tex. App.—Dallas 1982, no
writ). When determining conservatorship, the trial judge should focus on the child.
In re Rodriguez, 940 S.W.2d 265, 270–71 (Tex. App.—San Antonio 1997, writ
denied). In contrast, the focus in a termination case is on the behavior of the parents.
Id. A trial court’s conclusion that the statutory parental presumption has been
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rebutted must be supported by specific factual findings identifying the factual basis
for the finding, and the failure to make such findings constitutes error. Critz, 297
S.W.3d at 470.
One way for a nonparent to overcome the statutory parental presumption is by
proving by a preponderance of the evidence that appointment of the parent as
managing conservator would significantly impair the child’s physical health or
emotional development. In re L.E.M., No. 05-16-00209-CV, 2017 WL 3474012, at
*1 (Tex. App.—Dallas Aug. 14, 2017, no pet.) (mem. op.) (citing In re B.B.M., 291
S.W.3d 463, 467 (Tex. App.–Dallas 2009, no pet.)). The burden is on the nonparent
to produce some evidence that the child’s placement with the parent would
significantly impair the child’s physical or emotional development. Mankin v.
Ledezma de la Rosa, No. 05-96-01197-CV, 1999 WL 26898, at *2–3 (Tex. App.—
Dallas Jan. 25, 1999, no pet.) (mem. op.) (citing In re Rodriguez, 940 S.W.2d at
272).
To support a finding of significant impairment, the evidence must do more
than merely raise a suspicion or speculation of possible harm. In re B.B.M., 291
S.W.3d at 467. Instead, the evidence must support the logical inference that some
specific, identifiable behavior or conduct of the parent, demonstrated by specific acts
or omissions, will probably harm the child. Id.; R.H. v. D.A., No. 03-16-00442-CV,
2017 WL 875317, at *5 (Tex. App.—Austin Mar. 2, 2017, pet. dism’d) (mem. op.).
This is a heavy burden that is not satisfied by merely showing the nonparent would
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be a better choice as custodian of the child. In re B.B.M., 291 S.W.3d at 467. Acts
or omissions that constitute significant impairment include, but are not limited to,
physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral
behavior by the parent. Id. at 469. A factfinder may infer the present fitness of the
parent to be managing conservator from the parent’s recent, deliberate past
misconduct. R.H., 2017 WL 875317, at *5. But evidence of past misconduct,
standing alone, may not be sufficient to show present unfitness. Id. “When a
nonparent and a parent are both seeking managing conservatorship, the ‘close calls’
go to the parent.” In re B.B.M., 291 S.W.3d at 469; see also In re F.E.N., 579 S.W.3d
74, 77 (Tex. 2019) (per curiam) (proof of significant impairment “should include the
acts or omissions of the parent demonstrating that result”) (citing Lewelling, 796
S.W.2d at 167).
Here, the trial court found that Mother “neglected” A.V. “over the course of
the child’s life” and concluded appointing Mother as managing conservator “would
significantly impair the child’s physical health or emotional development.” The trial
court did not, however, find any specific or identifiable behavior or conduct of
Mother or identify any specific acts or omissions by Mother that would support a
logical inference that Mother’s appointment would significantly impair A.V.’s
physical health or emotional development. We have found no evidence in the record
to support such an inference. Indeed, there is no evidence that Mother ever physically
or emotionally abused A.V., or that any specific actions or omissions by Mother
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would pose any harm to A.V. At most, the evidence showed that the Grandparents
would be a good choice to act as A.V.’s custodians. That, however, is insufficient as
a matter of law to overcome the statutory parental presumption. See In re B.B.M.,
291 S.W.3d at 467. Under this record, we conclude the evidence was legally
insufficient to support the trial court’s finding of significant impairment.
The evidence was also legally insufficient to support the trial court’s finding
of neglect. Section 261.001(4) of the family code defines “neglect” as:
an act or failure to act by a person responsible for a child’s care,
custody, or welfare evidencing the person’s blatant disregard for the
consequences of the act or failure to act that results in harm to the child
or that creates an immediate danger to the child’s physical health or
safety . . . .
TEX. FAM. CODE § 261.001(4)2. There is no evidence in this record to support the
trial court’s finding of neglect. The record includes no evidence that A.V. was ever
harmed by Mother’s blatant disregard for the consequences of her acts or failures to
act, nor is there any evidence that Mother ever placed A.V.’s physical health or
safety in immediate danger. On the contrary, the record established that A.V. has
been adequately cared for throughout her life and has not been placed in harm’s way
by Grandparents or Mother. The finding of neglect is, therefore, not supported by
legally sufficient evidence.
2
Section 261.001(4) goes on to describe what acts and omissions are included in the definition of
“neglect,” none of which are applicable or present here.
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A nonparent can also rebut the statutory parental presumption by proving the
parents have exhibited a history of family violence, or voluntarily relinquished care,
control, and possession of the child to a nonparent for a year or more. Critz, 297
S.W.3d at 470; see TEX. FAM. CODE §§ 153.131, 153.373. No family violence
allegations or findings are present here. The trial court did, however, find voluntary
relinquishment. Grandparents maintain they overcame the section 153.131 parental
presumption by proving Mother voluntarily relinquished A.V. to them as set out in
section 153.373 of the family code, which provides:
The presumption that a parent should be appointed or retained as
managing conservator of the child is rebutted if the court finds that:
(1) the parent has voluntarily relinquished actual care,
control, and possession of the child to a nonparent, a
licensed child-placing agency, or the Department of
Family and Protective Services for a period of one year or
more, a portion of which was within 90 days preceding the
date of intervention in or filing of the suit; and
(2) the appointment of the nonparent, agency, or
Department of Family and Protective Services as
managing conservator is in the best interest of the child.
TEX. FAM. CODE § 153.373. The evidence, however, is insufficient to support the
trial court’s finding that Mother voluntarily relinquished A.V. to Grandparents.
Although the evidence showed that A.V. lived at Grandparents’ home
throughout her life, the record also shows that Mother lived with A.V. and
Grandparents at various times and assisted in caring for A.V. during those periods.
The record also shows that Mother maintained contact with A.V. through in-person
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visits and FaceTime calls when she was not living with A.V. Although Grandparents
assert Mother should have spent more time caring for A.V., they failed to present
any evidence that Mother voluntarily relinquished actual possession of A.V. for a
period of one year or more. Indeed, the parties agree that Mother hoped to one day
raise A.V. on her own without Grandparents’ help.
Moreover, the evidence showed that Mother lived with A.V. and
Grandparents for at least four months before Grandparents filed their SAPCR
petition. Grandparents presented no evidence regarding Mother’s actions to care for
A.V. when Mother lived with them during that time. And Mother testified that in the
year before trial, she had no intention of relinquishing the care, control, or possession
of A.V. to Grandparents. This is supported by the timing of Grandparents’ SAPCR
filing. It was not until Mother found the Seattle job and announced her intention to
move there with A.V. that Grandparents sued for custody. The evidence, therefore,
established that no relinquishment occurred within the ninety days preceding
Grandparents’ filing the SAPCR petition.
We conclude that the evidence presented at trial was insufficient to overcome
“[t]he strong presumption that the best interest of a child is served by appointing a
natural parent as managing conservator.” See In re B.B.M., 291 S.W.3d at 467. There
was no evidence that Mother’s “specific, identifiable behavior or conduct,”
“demonstrated by specific acts or omissions,” will probably harm A.V. See id. At
most, the evidence “merely raise[d] a suspicion or speculation of possible harm.”
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See id. Similarly, there was no evidence to support the findings of neglect and
voluntary relinquishment. Consequently, the trial court lacked sufficient evidence
on which to exercise its discretion. See In re M.O., No. 05-19-00413-CV, 2019 WL
4071999, at *3 (Tex. App.—Dallas Aug. 29, 2019, no pet.) (mem. op.). We sustain
Mother’s second issue.
III. Standard possession order
Finally, Mother maintains the trial court abused its discretion by ordering that
her possession and access of A.V. be supervised and permitting her less possession
time than what is allotted in the Standard Possession Order. See TEX. FAM. CODE
§ 153.252 (creating a rebuttable presumption that the standard possession order
“provides reasonable minimum possession of a child for a parent names as a
possessory conservator . . . and is in the best interest of the child.”). We agree.
The trial court must begin with a rebuttable presumption that the standard
possession order is in the best interest of the child. TEX. FAM. CODE § 153.252. If
the presumption is rebutted and the trial court denies possession or imposes
restrictions or limitations on the parent’s possession and access rights, the terms of
an order “may not exceed those that are required to protect the best interest of the
child.” TEX. FAM. CODE § 153.193; In re C.A.M.M., 243 S.W.3d 211, 222 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied). Here, the trial court deviated from
the standard possession order based on its finding that “there is a history or pattern
of child neglect committed by” Mother. As discussed above, however, the evidence
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was insufficient to support the trial court’s neglect findings. As such, there is
insufficient evidence to rebut the presumption that the standard possession order is
in A.V.’s best interest. On this record, and in light of the statutory presumption, we
conclude that the trial court abused its discretion by ordering Mother’s visitation be
supervised and by ordering a more restrictive possession and access schedule than
permitted by the standard possession order. Moreover, at the time of trial, the
relationship between Mother and Grandmother had deteriorated to the point that the
women engaged in an emotionally-charged argument before Mother moved to
Seattle, and Mother felt too uncomfortable to visit A.V. in the weeks leading up to
trial. We conclude, therefore, that requiring visitation to be supervised by
Grandparents at their home was not in A.V.’s best interest at the time of trial. We
sustain Mother’s third issue.
IV. Remand for further proceedings
Mother asks the Court to reverse the SAPCR order and render an order naming
Mother sole managing conservator. We overrule that request because we find it to
be in the interest of justice not to simply render judgment in her favor. More than
two years have passed since the custodial hearing, and we have no ability to
determine the present circumstances of any of the parties. Nor do we have the luxury
of sitting as a fact-finder. Circumstances may have changed during this time such
that it would not be in A.V.’s best interest to appoint Mother as her sole managing
conservator. See, e.g., Shook v. Gray, 381 S.W.3d 540, 542 (Tex. 2012) (remanding
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in the interest of justice). Moreover, Grandparents’ failure to overcome the fit-parent
presumption and the statutory parental presumption does not deprive them of
standing to be considered for conservatorship or access. Id.; TEX. FAM. CODE §
102.003 (authorizing suit by “a person, other than a foster parent, who has had actual
care, control, and possession of the child for at least six months ending not more
than 90 days preceding the date of the filing of the petition”). If Grandparents fail to
overcome those presumptions on remand, the trial court may still name Grandparents
as possessory conservators or grant them access if that would be in A.V.’s best
interest. Shook, 381 S.W.3d at 543.
CONCLUSION
Under this record, we conclude the trial court abused its discretion by
appointing Grandparents joint managing conservators of A.V. and by deviating from
the family code’s standard possession order. Accordingly, we sustain Mother’s
appellate issues, reverse the October 9, 2020 “Final Order in Suit Affecting the
Parent-Child Relationship” in its entirety, and remand for further proceedings
consistent with this opinion.
/Robbie Partida-Kipness/
ROBBIE PARTIDA-KIPNESS
JUSTICE
200966F.P05
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF A.V., A On Appeal from the 469th Judicial
CHILD, District Court, Collin County, Texas
Trial Court Cause No. 469-50370-
No. 05-20-00966-CV 2020.
Opinion delivered by Justice Partida-
Kipness. Chief Justice Burns and
Justice Schenck participating.
In accordance with this Court’s opinion of this date, the judgment of the trial
court is REVERSED and this cause is REMANDED to the trial court for further
proceedings consistent with this opinion.
It is ORDERED that appellant ELIZABETH RENEE VARGAS recover her
costs of this appeal from appellees LISA VARGAS and RAUL VARGAS.
Judgment entered this 15th day of July 2022.
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