in the Interest of C.R.W., a Child

• Court: Court of Appeals of Texas
• Decided: January 14, 2020
• Docket: 07-19-00325-CV
• Status: Published

Opinion

In The Court of Appeals Seventh District of Texas at Amarillo ________________________

No. 07-19-00325-CV ________________________

IN RE C.R.W., A CHILD

On Appeal from the 84th District Court Ochiltree County, Texas Trial Court No. 14,634; Honorable Curt W. Brancheau, Presiding

January 14, 2020

MEMORANDUM OPINION Before PIRTLE, PARKER, and DOSS, JJ.

Appellant, V.L.E., appeals from the trial court’s Final Order in Suit Affecting the

Parent-Child Relationship appointing her possessory conservator of her daughter,

C.R.W., and appointing L.E., the maternal grandmother, as permanent managing

conservator in a suit initiated by the Texas Department of Family and Protective

Services.1 By two issues, V.L.E. contends (1) the evidence is legally and factually

1 To protect the privacy of the parties involved, we refer to them by their initials. See TEX. FAM. CODE ANN. § 109.002(d) (West Supp. 2019). See also TEX. R. APP. P. 9.8(b). The alleged father is deceased. insufficient to support the trial court’s order given the Family Code’s presumption in favor

of a parent over a nonparent and (2) the trial court abused its discretion. We affirm.

BACKGROUND

V.L.E has a history with the Department with respect to other children dating back

to 2011. At the time of the underlying proceeding, which had originated as a Department

intervention and a family-based case in 2017, the Department was C.R.W.’s managing

conservator and C.R.W. was voluntarily placed with her maternal grandmother. At that

time, V.L.E. had visitation rights with her daughter.

V.L.E.’s boyfriend has a criminal history and a history of drug use. That fact led to

an agreement between the grandmother and V.L.E., through Child Protective Services,

that V.L.E would not allow her child to have contact with her boyfriend.

On July 31, 2018, C.R.W. had visitation with her mother but the child was not

returned to her grandmother’s care following the visit. The next day, the assigned

caseworker for the Department became aware that V.L.E. and her boyfriend had moved

into an apartment and that the child was staying with them. The caseworker contacted

V.L.E. and explained that if she did not return the child to the grandmother later that night,

there would be legal consequences. V.L.E. refused to return the child due to alleged

unclean conditions of the grandmother’s home. V.L.E. desired a different placement for

her daughter.

Suspecting drug use in the presence of the child, the Department sought and

obtained a court order allowing a Department representative to transport the child to a

testing facility for a hair follicle drug screen. The test revealed that the child tested positive

2 for methamphetamines. Citing concerns for C.R.W.’s safety, the Department took

possession of the child on August 30, 2018, and initiated proceedings for protection,

conservatorship, and termination the following day.

A year later, at the final hearing, the caseworker testified that the Department

wished for C.R.W.’s grandmother to be appointed permanent managing conservator with

V.L.E. being appointed as possessory conservator. No other witnesses testified. The

trial court signed an order memorializing the Department’s wishes and dismissed the

Department from the case.

V.L.E. challenges the trial court’s order. By two issues, she alleges the evidence

is insufficient to defeat the Family Code’s parental presumption and also alleges the trial

court abused its discretion in entering its order.

APPLICABLE LAW

When determining conservatorship between a parent and a nonparent, the Family

Code provides for a presumption that appointment of the parent as the sole managing

conservator is in the child’s best interest. TEX. FAM. CODE ANN. § 153.131 (West 2014).

“Evidence showing that the nonparent would be a better custodian of the child does not

suffice, and close calls should be decided in favor of the parent.” In re M.J.C.B., Jr. and

M.C.B., No. 11-14-00140-CV, 2014 Tex. App. LEXIS 12387, at *2-3 (Tex. App.—Eastland

Nov. 14, 2014, no pet.) (mem. op.) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 168

(Tex. 1990)). The parental presumption may be rebutted with evidence showing that

appointment of the parent as managing conservator would significantly impair the child’s

physical or emotional development. In re H.E.B., No. 07-17-00351-CV, 2018 Tex. App.

3 LEXIS 885, at *4 (Tex. App.—Amarillo Jan. 31, 2018, pet. denied) (mem. op.) (citation

omitted).

The best interest of the child is the primary consideration in determining the

conservatorship of a child. TEX. FAM. CODE ANN. § 153.002. A court may use numerous

factors to determine best interest. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).

Those factors, which are not exhaustive, include (1) the desires of the child; (2) the

emotional and physical needs of the child now and in the future; (3) the emotional and

physical danger to the child now and in the future; (4) the parental abilities of the individual

seeking custody; (5) the programs available to assist the individual to promote the best

interest of the child; (6) the plans for the child by the individual or by the agency seeking

custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of

the parent that may indicate that the existing parent-child relationship is not a proper one;

and (9) any excuse for the acts or omissions of the parent. Id.

STANDARD OF REVIEW

We review a trial court’s determination of conservatorship under an abuse of

discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). We will

reverse the trial court’s determination only if its decision is arbitrary and unreasonable. In

re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A conservatorship issue, such as the one

before this court, is governed by a preponderance-of-the-evidence standard. Id. Where,

as here, no findings of fact or conclusions of law were requested or filed, we presume the

trial court made all implied findings necessary to support its order. Seger v. Yorkshire

Ins. Co., 503 S.W.3d 388, 401 (Tex. 2016) (citing Holt Atherton Indus., Inc. v. Heine, 835

S.W.2d 80, 83 (Tex. 1992)).

4 In reviewing evidence for legal sufficiency, we view the evidence in the light most

favorable to the finding, crediting favorable evidence if a reasonable fact finder could, and

disregarding contrary evidence unless a reasonable fact finder could not. City of Keller

v. Wilson, 168 S.W.3d 802, 822, 827 (Tex. 2005). A factual sufficiency review requires

us to examine the entire record and set aside a finding only if it is so contrary to the

overwhelming weight of the evidence as to be clearly wrong and unjust. In re A.L.H., 515

S.W.3d 60, 80 (Tex. App.—Houston [14th Dist.] 2017, pet. denied). The fact finder is the

sole judge of the credibility of the witnesses and the weight to be given their testimony;

City of Keller, 168 S.W.3d at 819, and we may not substitute our judgment for that of the

fact finder’s even if we would reach a different answer on the evidence. Maritime

Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert. denied, 525 U.S. 1017,

119 S. Ct. 541, 142 L. Ed. 2d 450 (1998).

ANALYSIS

The caseworker testified that C.R.W. has lived with her grandmother for most of

her life. C.R.W.’s past behavioral issues had improved with counseling. The

grandmother’s home was found to be appropriate and C.R.W. has enjoyed stability with

her grandmother.

The caseworker expressed concern that in a year’s time, V.L.E. had failed to

complete a modified family service plan.2 She failed to show for appointments and used

her employment and lack of transportation to justify her non-compliance.

2 Because V.L.E. had completed some services during prior cases with the Department, she was only asked to complete a psychosocial program, attend individual therapy, and submit to drug screening.

5 The Department was unable to determine exactly how C.R.W. was

exposed to methamphetamines. V.L.E. and her boyfriend both tested negative for

methamphetamines while the case was ongoing. V.L.E. submitted to three drug screens

during the year-long case; however, her boyfriend only submitted to one drug screen

during that same time period.

The Department did establish that V.L.E. moved three times during the pendency

of the case and that one of those moves was prompted by an eviction. From this

evidence, a reasonable fact finder might conclude that she failed to provide C.R.W. with

a stable home. V.L.E. did, however, establish that she had stable employment.

C.R.W. reported to the caseworker that she loved her mother and that their visits

went well. However, the caseworker testified that C.R.W. would report one version of

events to him while giving a different version to a court-appointed special advocate. He

also expressed his concern that the case had caused C.R.W. emotional distress.

The caseworker confirmed that the grandmother’s home was stable and

appropriate for C.R.W. and that C.R.W.’s behavioral issues had improved while under her

grandmother’s care. The evidence showed that V.L.E. had failed to complete the

“watered-down version” of her family service plan in a year’s time. V.L.E. offered excuses

for her missed appointments and also missed some rescheduled appointments. At the

time of the final hearing, she had not yet completed the limited services required by the

modified family service plan. Although there was no evidence that the existing parent-

child relationship was not a proper one, the evidence showed that while under her

mother’s care, C.R.W. was somehow exposed to methamphetamine.

6 This court acknowledges the statutory presumption of appointing the parent as the

sole managing conservator during a custody dispute between a parent and a nonparent.

However, that presumption is rebuttable when a child’s physical or emotional

development would be significantly impaired. Here, the evidence showed that V.L.E.

knowingly violated an agreement with the Department by allowing her live-in boyfriend to

have contact with C.R.W, and the evidence also showed that C.R.W.’s physical health

was jeopardized by an unexplained exposure to methamphetamines while under her

mother’s care. While evidence rebutting the statutory presumption was not

overwhelming, viewing that evidence under the appropriate standards for legal and

factual sufficiency, we find the statutory presumption favoring a parent over a nonparent

was sufficiently rebutted. We further find that the trial court’s order appointing C.R.W.’s

maternal grandmother as permanent managing conservator and V.L.E. as possessory

conservator was neither arbitrary or unreasonable. Finding no abuse of discretion by the

trial court, we overrule issues one and two.

CONCLUSION

The trial court’s Final Order in Suit Affecting the Parent-Child Relationship is

affirmed.

Patrick A. Pirtle Justice