In the Interest of E.K.H., a Child v. the State of Texas

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-24-00191-CV
IN THE INTEREST OF E.K.H., A CHILD
On Appeal from 223rd District Court
Gray County, Texas
Trial Court No. 40,778, Honorable Jack Graham, Presiding
November 19, 2024
MEMORANDUM OPINION
Before QUINN, C.J., and DOSS and YARBROUGH, JJ.
This appeal concerns the designation of conservatorship rights to a child, E.K.H.1
Though the Texas Department of Family and Protective Services initially sought
termination of Mother’s and Father’s parental rights, the case evolved into a
conservatorship dispute. After final hearing, the trial court appointed Father as E.K.H.’s
managing conservator and Mother as possessory conservator. In her sole issue on
appeal, Mother argues the trial court abused its discretion, contending the evidence failed
1 To protect E.K.H.’s privacy, we will refer to K.R. as “Mother,” N.H. as “Father,” and the child, E.K.H.,
by initials. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
to overcome the statutory presumption favoring joint managing conservatorship. We
disagree and affirm.
Background
This case began in December 2022, when the Department received a report of
neglectful supervision of E.K.H., who was one year old at the time. The report alleged
that Mother had been incarcerated on charges of aggravated assault with a deadly
weapon, theft, and child endangerment, and had left the child in another’s care. That
other caretaker, per the report, allegedly consumed alcohol, and marijuana in the child’s
presence.
This was far from Mother’s first involvement with the Department. The evidence
showed that between 2015 and 2022, the Department conducted seven investigations
concerning the adequacy of Mother’s care of her children. Most notably, in December
2017, both Mother and her newborn infant tested positive for methamphetamine. In
December 2020, Mother’s hair follicle test revealed amphetamines, MDMA/Ecstasy,
cocaine, and cocaine metabolites, leading to her children’s removal and placement with
their father. Then in April 2022, while caring for E.K.H., Mother was arrested for child
endangerment after law enforcement found the child’s car seat “turned over.” Rather than
complete court-ordered services, however, Mother left the state. Mother’s criminal history
during the eight-year period before the present investigation involved multiple theft
charges, probation violations, drug possession, and violent offenses, culminating in the
aggravated assault charges that led to her eighteen-month incarceration beginning in
December 2022.
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The Department filed its petition to terminate parental rights in December 2022;
E.K.H. was removed and the Department appointed her temporary sole managing
conservator. At a January 2023 hearing, the trial court appointed both parents as
possessory conservators with limited rights and ordered them to complete services. Over
the next several months, Mother remained incarcerated, preventing her from having
contact with E.K.H. Father, meanwhile, complied with his service plan and progressed
from supervised visits to having E.K.H. placed in his home in July 2023.
According to permanency specialist Courtney Brown, E.K.H. was “doing very well”
in his care. Brown testified that Father and E.K.H. had developed “very much a healthy
parent/child relationship.” Though Brown acknowledged Father had a history of domestic
violence allegations involving his other children, she had witnessed no abuse toward
E.K.H. or Father’s live-in girlfriend. When the Department investigated one report about
Father’s physical discipline of E.K.H., it ultimately ruled out any abuse.
Mother was released from her 18-month incarceration in March 2024,
approximately six weeks before final hearing. There was evidence at final hearing that
Mother completed all services available to her while incarcerated. During those six
weeks, Mother secured housing with her boyfriend (who is father to one of her children,
but has a pending felony charge), obtained employment at an Amarillo hotel, began
counseling, and participated in a domestic violence support group. Her weekly
supervised visits with E.K.H. proceeded without incident, and both Brown and visitation
supervisor Treesen Pierson noted no concerns. Brown testified she saw no reason why
E.K.H. could not eventually be raised by both parents. However, given Mother’s recent
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release from prison, Brown testified she would first like to see Mother demonstrate more
stability before being considered for joint managing conservatorship.
The Department recommended Father be named primary managing conservator
and Mother possessory conservator with a stair-stepped visitation schedule. Both the
guardian ad litem and CASA representative agreed, emphasizing E.K.H.’s stability in
Father’s care. The trial court signed an order consistent with these recommendations,
appointing Father as permanent managing conservator and Mother as possessory
conservator. The order established a step-up visitation schedule leading to Mother
potentially obtaining standard possession by July 2024. The court found that “the
circumstances of [E.K.H.], conservators or other party affected by the prior orders for
conservatorship in this case have materially and substantially changed since rendition of
the prior order, and that the appointment of [Father] as the sole managing conservator
would be a positive improvement for the child.”
Analysis
A trial court may appoint either a sole managing conservator or joint managing
conservators. TEX. FAM. CODE ANN. § 153.005(a). The child’s best interest is a trial court’s
primary consideration in determining issues of conservatorship and possession. Id.
§ 153.002. The law presumes that appointing parents as joint managing conservators
serves the child’s best interest, but this presumption is rebuttable. Id. § 153.131(b). We
review conservatorship determinations for an abuse of discretion, meaning we will
reverse only if the decision is arbitrary and unreasonable. In re J.A.J., 243 S.W.3d 611,
616 (Tex. 2007). In conducting this review, we consider whether the trial court had
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sufficient evidence2 to exercise its discretion and whether it erred in applying that
discretion. In re L.T., No. 07-24-00002-CV, 2024 Tex. App. LEXIS 2986, at *6–7 (Tex.
App.—Amarillo Apr. 30, 2024, no pet.) (mem. op.).
Through a single issue, Mother argues the trial court abused its discretion in
appointing Father sole managing conservator rather than naming both parents joint
managing conservators as presumptively favored by statute. Specifically, Mother argues
there exists no material and substantial change of circumstances since the signing of a
prior final order because no earlier order appears in the record. However, there is no final
conservatorship order to modify because the order now on appeal is the only final
conservatorship determination for E.K.H. and Mother and Father. Cf. Crapps v. Crapps,
No. 12,478, 1976 Tex. App. LEXIS 3467, at *4 (Tex. Civ. App.—Austin Dec. 22, 1976, no
writ) (not designated for publication) (modification requires a prior final order, not
temporary orders).
Mother further contends there exists no evidence showing that Father’s
appointment as E.K.H.’s sole managing conservator would be a positive improvement.
We assess that argument as a part of considering whether the appointment is in the best
interest of the child.
2 The standards for assessing the legal and factual sufficiency of the evidence are well established
and need not be restated here. See In re L.A.M., No. 07-21-00124-CV, 2022 Tex. App. LEXIS 3515, at *11–
12 (Tex. App.—Amarillo May 24, 2022, no pet.) (mem. op.) (discussing the standards).
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When, as here, there is no evidence of an agreed parenting plan,3 the court may
appoint the parents joint managing conservators only if the appointment is in the child’s
best interest, considering the following factors:
(1) whether the physical, psychological, or emotional needs and
development of the child will benefit from the appointment of joint managing
conservators;
(2) the ability of the parents to give first priority to the welfare of the
child and reach shared decisions in the child’s best interest;
(3) whether each parent can encourage and accept a positive
relationship between the child and the other parent;
(4) whether both parents participated in child rearing before the filing
of the suit;
(5) the geographical proximity of the parents’ residences;
(6) if the child is 12 years of age or older, the child’s preference, if any,
regarding the person to have the exclusive right to designate the primary
residence of the child; and
(7) any other relevant factor.
TEX. FAM. CODE ANN. § 153.134(a).
The evidence supports the trial court’s decision to name Father as a managing
conservator. Stability and permanence are paramount in raising children. In re K.O., No.
07-23-00440-CV, 2024 Tex. App. LEXIS 4561, at *17 (Tex. App.—Amarillo June 26, 2024,
no pet.) (mem. op.). E.K.H. has lived stably with Father for nearly a year, forming what
witnesses described as a healthy parent-child bond.
3 See TEX. FAM. CODE ANN. § 153.133(a).
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Mother contends the evidence fails to show that naming her a joint managing
conservator would significantly impair E.K.H.’s physical health or emotional development.
She relies on Family Code section 153.131(a), which requires such a showing before
denying a parent managing conservator status. But section 153.131(a) applies only when
no parent is named managing conservator. See In re C.D., No. 04-19-00866-CV, 2020
Tex. App. LEXIS 4115, at *6–8 (Tex. App.—San Antonio June 3, 2020, no pet.) (mem.
op.).4 Here, where Father is managing conservator, section 153.131(b)’s rebuttable
presumption favoring joint managing conservatorship controls. This presumption is
overcome by considering the factors in section 153.134(a), not by proof of significant
impairment under section 153.131. Id.On appeal, Mother does not discuss section 153.134(a)’s factors. In contrast to
the evidence indicating a flourishing relationship between the child and Father, the
evidence of Mother’s recent release from an 18-month incarceration could give a
reasonable factfinder concerns about parenting stability. While she made commendable
progress in the six weeks before trial—securing housing, employment, and beginning
services—this brief period must be juxtaposed against Mother’s extensive history of
criminal charges, incarceration for the majority of E.K.H’s life, and prior Department
involvement. The evidence provides a historical context permitting the trial court, as
factfinder, to reasonably conclude more time was needed to demonstrate Mother’s lasting
stability as a responsible parent.
4 See also In re A.C.D., No. 05-16-00779-CV, 2016 Tex. App. LEXIS 11946 (Tex. App.—Dallas Nov.
3, 2016, no pet.) (mem. op.); In re Marriage of Butts, 444 S.W.3d 147, 155–56 (Tex. App.—Houston [14th
Dist.] 2014, no pet.).
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Within the context of describing how past decisions can forecast future parenting
skills, this Court has noted that “oftentimes, past is prologue.” In re A.M., Nos. 07-18-
00047-CV, 07-18-00048-CV, 2018 Tex. App. LEXIS 3688, at *7 (Tex. App.—Amarillo May
23, 2018, pet. denied) (per curiam) (mem. op.). The trial court’s order, however, provides
Mother the opportunity to write a different future by preserving her relationship with E.K.H.
through a step-up visitation schedule that may lead to standard possession. This
arrangement thoughtfully balances E.K.H.’s need for stability with Mother’s opportunity to
demonstrate sustained progress and gradually expand her role in her daughter’s life.
Conclusion
We conclude the trial court did not abuse its discretion. We overrule Mother’s issue
and affirm the trial court’s order.
Lawrence M. Doss
Justice
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