in the Interest of L.D.J. III, A.Y.J., W.F.J., and C.J., Children

• Court: Court of Appeals of Texas
• Decided: July 21, 2015
• Docket: 13-15-00099-CV
• Status: Published

Opinion

ACCEPTED 13-15-00099-CV THIRTEENTH COURT OF APPEALS CORPUS CHRISTI, TEXAS 7/21/2015 10:10:42 AM CECILE FOY GSANGER CLERK

FILED IN 13th COURT OF APPEALS Cause No. 13-15-00099-CV CORPUS CHRISTI/EDINBURG, TEXAS 7/21/2015 10:10:42 AM IN THE COURT OF APPEALS CECILE FOY GSANGER FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT Clerk CORPUS CHRISTI, TEXAS _____________________________________________________

IN THE INTEREST OF

L.D.J. III, A.Y.J., W.F.J. and C.J.,

CHILDREN

_____________________________________________________

Appealed from the 206th Judicial District Court of Hidalgo County, Texas Hon. Rose Guerra Reyna, Presiding ___________________________________________

APPELLANT’S BRIEF ON THE MERITS ___________________________________________

ORAL ARGUMENT REQUESTED IDENTITY OF THE PARTIES

PETITIONER/APPELLANT: COUNSEL: Blanca E. Jones Francisco Guerrero, II SBN 24047588 PENA GARCIA GUERRERO PLLC 900 Kerria Avenue McAllen, TX 78501 t: 956.948.2221 f: 888.422.6821 fg@pgglex.com

Counter-Petitioner/APPELLEE: COUNSEL: Helen M. Jones Roel “Robie” Flores The Firm of Roel “Robie” Flores 3331 N. Ware Rd Mc Allen, Texas 78501 t: 956.631.7188 f: 956.631.7268 robiefloreslaw@att.net

2 TABLE OF CONTENTS IDENTITY OF THE PARTIES…………………………………..……. 2

TABLE OF CONTENTS……………………………………… ……..… 3

TABLE OF AUTHORITIES…………………………………………... 4

RECORD REFERENCES…………………………………………..….. 5

STATEMENT OF THE CASE……………………………………….... 6

STATEMENT REGARDING ORAL ARGUMENT ………………….. 7

ISSUES PRESENTED………………………………………………….. 8

STATEMENT OF FACTS…………………………………….............. 9

SUMMARY OF THE ARGUMENT………………………………...… 13

ARGUMENT………………………………………………….………... 16

PRAYER……………………………………………………………..… 39

APPENDIX…………………………………………………………..… 41

3 TABLE OF AUTHORITIES

STATE CASES Brigham v. Brigham,

863 S.W.2d 761 (Tex.App.- Dallas, 1993)………………………… 35

Chavez v. Chavez, 148 S.W. 3d 449 (Tex.App.-El Paso, no pet.)……………………… 31, 34

Critz v. Critz, 297 S.W.3d 464 (Tex.App.—Fort Worth 2009, no pet.)…. 17, 18, 24, 25, 29, 34

Danet v. Bhan, 436 S.W.3d 793 (Tex. 2014)………………………..…………….. 34

Gray v. Shook, 329 S.W.3d 186 (Tex.App.-Corpus Christi 2010)…………… 30, 31, 36, 37, 38

In re S.A.H, 420 S.W.3d 911 (Tex.App.-Houston [14th] Dist., 2014)………….. 19, 22, 26

In re S.M.D, 329 S.W.3d 8 (Tex.App.-San Antonio, 2010)(reh’g overruled, rev. dism’d)…34

Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990)……………………………………….. 29, 35, 37

May v. May, 829 S.W.2d 373 (Tex.App.-Corpus Christi 1992, writ denied)……. 30, 36, 37

Shook v. Gray, 381 S.W.3d 540 (Tex. 2012) ………………………………………. 36, 37

STATE STATUTES

TEX. FAM. CODE ANN. §153.002…………………………………….. 36 TEX. FAM. CODE ANN. §153.131……………………………………...23, 28, 34, 37 TEX. FAM. CODE ANN. §153.373………………………………………18, 19, 27 4 RECORD REFERENCES CR_ Clerk’s Record

1 RR_ Volume one of Recorder’s Record

2 RR_ Volume two of Recorder’s Record

3 RR_ Volume three of Recorder’s Record

Ex. P-_ Petitioner/Appellant’s exhibit to the Recorder’s Record

Ex. CP-_ Counter-Petitioner/Appellee’s exhibit to the Recorder’s Record

5 STATEMENT OF THE CASE

This appeal is taken from a final order rendered in the 206th Judicial District

Court of Hidalgo County in an action filed as a Suit Affecting Parent Child

Relationship. (CR p.110). The final order in this matter was rendered after a bench

trial held on December 17th and 18th, 2014. The Court signed Findings of Fact and

Conclusions of Law on January 28, 2015. (CR p.108). Appellant filed her Notice

of Appeal on February 17, 2015. (CR p.132).

6 STATEMENT REGARDING ORAL ARGUMENT

This case involves the conservatorship of four children. The trial court

appointed paternal grandmother as sole managing conservator of these children,

instead of their biological mother.

The mother of these children challenges, in this appeal, that the trial court

abused its discretion because the evidence is legally and factually insufficient to

support the trial court’s judgment as to rebuttal of the statutory presumptions in

Tex. Fam. Code §§151.131 and 151.373. Appellee failed to prove that Appellant

had 1.) voluntarily relinquished actual care, control and possession of the children

to Appellee for a period of one year or more; and/or 2.) that it would not be in the

children’s best interest to have their mother appointed sole managing conservator

because such appointment would significantly impair their physical health and

emotional development.

Since neither the Family Code nor case law provide bright-line definitions of

the term “voluntarily relinquishment” or the term “significant impairment”,

resolution of cases such as these is fact intensive analysis. Due to the Appellant’s

challenge of the legal and factual sufficiency of the evidence in this matter, oral

argument would be most beneficial for a clear presentation of the facts and to the

court’s understanding of the facts in this case. 7 ISSUES PRESENTED FOR REVIEW The trial court abused its discretion in appointing Appellee as the sole managing

conservator of the children and Appellant the possessory conservator.

I. The evidence is legally and factually insufficient to support the court’s

Finding of Fact No. 2.

III. The evidence is legally and factually insufficient to support the court’s

Finding of Fact No. 4.

III. The evidence is legally and factually insufficient to support the court’s

Finding of Fact No. 5 that Appellee rebutted the statutory parental

presumption in Tex. Fam. Code §153.131.

IV. The evidence is legally and factually insufficient to support the court’s

Finding of Fact No. 5 that Appellee rebutted the statutory parental

presumption in Tex. Fam. Code§153.373.

V. The court erred in its Conclusion of Law – Conservatorship because the

evidence is legally and factually insufficient to support the conclusion that

Appellee be appointed sole managing conservator of the children and

Appellee should be appointed possessory conservator.

8 STATEMENT OF FACTS a. Appellant was married to Appellee’s son, Larry Dean Jones, Jr.(hereinafter

“Dean” or “Appellant’s husband”), on April 29, 2011. Prior to their marriage, three

children were born to Appellant and Dean. (2RR p.102, line 19-23). The children

lived with Appellant prior to her marriage to Dean. (2RR pp.94-102). On or about

December 2012, Appellant left the United States for Mexico to complete the

immigration process which she and her husband had initiated. (CR p.15; 2RR

p.111; Ex. P-4).

b. On or about January 2013, Appellant was denied re-entry into the United

States and had to remain in Mexico pending a new visa appointment, because the

proper documentation regarding her pregnancy with the child C.J. had not been

submitted. (CR p.15; 2RR p.111; Ex. P-4). The youngest child, C.J., was born

while Appellant resided in Mexico awaiting a subsequent visa appointment. (2RR

p.119). Meanwhile, her husband remained in the United States managing their

affairs in her absence. (2RR pp.38-39 and 46; Ex. P-4).

c. On or about December 21, 2012, Appellee took possession of three of the

children the subject of this suit. (3RR p.35). Appellee had possession of the

children for the time period that Appellant was to be outside the United States

awaiting subsequent visa interview for her and C.J.. (2RR p.104, line 7-25 and

9 3RR p.37, line 9-25). On or about March 2014, Appellant lawfully re-entered the

United States with her youngest child, C.J. (2RR p.119; Ex. P-3).

d. Immediately upon her return, Appellant and Dean made plans to retrieve

their children from Fredericksburg, Texas where the children were living with

Appellee. (2RR p.119;). On or about April 2014, Appellant and Dean traveled to

Fredericksburg, Texas to reunite the family and return with the children to

McAllen, Texas. (2RR p.p. 120-121). Appellant, Dean, and Appellee subsequently

entered into an agreement to allow the children L.D.J. III and W.F.J. to spend time

with their grandmother, Appellee, until the end of the school year. (2RR p.p. 121)

The agreement called for the children to return to McAllen, Texas so they could

live with Appellant, her husband, and the other children A.Y.J and C.J

permanently. (2RR p.121).

e. On or about June 2014, Dean disappeared for approximately two weeks

while on an alleged business trip. (2RR pp.122- 124). During Dean’s two-week

absence, Appellant attempted to regain possession of her children, but Appellee

refused to return the children to Appellant, in breach of their agreement. (2RR

p.126; 3RR p.p. 93-94; Ex. CP-1). Subsequently, Appellant filed for divorce in

Hidalgo County, Texas. (2RR p.125). In response to Appellant’s divorce action,

Dean filed a divorce action in Kendall County in Cause No. 14-283-CCL, styled In

the Matter of the Marriage of Larry D. Jones, Jr. and Blanca Estella Jones and In 10 the Interest of L.D.J, III, A.Y.J, W.F.J. and C.J., Minor Children (herein “Dean’s

divorce action”). (3RR p.p. 95-101; Ex. P-5). The Appellee intervened in Dean’s

divorce action. (3RR p.p. 95-101; Ex. P-5)

f. Appellant and Dean began to reconcile their marriage in the latter part of

June 2014. (2RR p. 134; Ex. P-8). Appellant and Dean eventually travelled to

Fredericksburg, Texas to regain possession of the two remaining children, L.D.J,

III and W. F. J., in an attempt to work on their marriage. (2RR p. 134). On July 3,

2014, Dean’s father drove Appellant with all her four children down to McAllen,

Texas. (2RR p. 135).

g. On or about July 3, 2014, Appellant’s husband committed suicide in

Fredericksburg, Texas. (2RR p. 134, line 16-19). On July 11, 2014 Appellee

sought and obtained a Writ of Attachment for all four children from the Kendall

County Court at Law pursuant to her intervention in Dean’s divorce action. (3RR

p.p. 95-101; Ex. P-5). On or about July 11, 2014, Appellee travelled from Kendall

County to McAllen, Texas and had the Writ of Attachment for all the children

executed by Hidalgo County Sheriff’s officers. (3RR p. 100, line 21-25 and p.

102).

h. On July 16, 2015, Appellant filed the instant Suit Affecting Parent Child

Relationship, in Hidalgo County, Texas. (CR p.15). On July 25, 2014, the Kendall

County Court at Law dismissed all of Appellee’s and Dean’s actions pending 11 before it for lack of jurisdiction due to Dean’s death on July 3, 2014. (Ex. P-5).

Appellee, subsequently, filed a counter-petition in the instant Suit Affecting Parent

Child Relationship. (CR p. 36).

i. On December 17th and 18th, 2014 a bench trial was held on the parties’ Suits

Affecting Parent Child Relationship. The issues before the court were:

(1) whether appointment of Appellant, the natural parent of the children, as

sole managing conservator of the children would not be in the best interest of the

children because the appointment would significantly impair the children’s

physical health or emotional development; and

(2) whether Appellant voluntarily relinquished actual care, control and

possession of the children to Appellee, a nonparent, for a period of one year or

more; of which time period was not more than 90 days prior to Appellee filing suit

in the instant case.

The final judgment of the trial court appointed Appellee as the sole managing

conservator of all children made the subject of this Suit Affecting Parent Child

Relationship, and Appellant was appointed possessory conservator of her

biological children. (CR p.110)

j. The trial court signed findings of fact and conclusions of law on January 12,

2015. (CR p.108). Appellant appeals from this final judgment. (CR p.110 and

132). 12 SUMMARY OF THE ARGUMENT

The Appellee, a non-parent, challenged the Appellant’s, right to be

appointed sole managing conservator of the children. To succeed in her challenge,

the Appellee had to rebut the presumption that the best interest of the children

would be best served by appointing Appellant, the natural parent, as managing

conservator. This placed a heavy burden on the Appellee, as this parental

presumption is deeply embedded in Texas law. This parental presumption is

codified in Sections 153.131 and 153.373 of the Texas Family Code.

The Appellant’s first argument is that in order for Appellee to rebut the

parental presumption in set out in Tex. Fam. Code §153.373, the Appellee had the

burden of proving, by a preponderance of the evidence, that 1) the Appellant had

voluntarily relinquished actual care, control, and possession of the children to the

Appellee for a period of one year or more; and 2) that the appointment of the

Appellee as conservator of the children is in the best interest of the children. When

Appellant went to Mexico for processing her visa to obtain residency in the United

States, she left the children with her husband, Dean, not with the Appellee. During

her involuntary stay in Mexico, the Appellant maintained telephone contact with

the children through her husband, but had little, if any, contact with Appellee.

Further, Appellee testified that she obtained possession of the children from her

son, Appellant’s husband, not from Appellant. Additionally, Appellee further 13 testified that she had no evidence that Appellant had voluntarily relinquished the

children to her.

Appellee failed to show, by a preponderance of the evidence, that

appointment of the Appellee as sole managing conservator of the children on

voluntary relinquishment grounds would be in the children’s best interest. Thus,

the evidence is legally insufficient to support the trial court’s judgment awarding

conservatorship to Appellee on voluntary relinquishment grounds. Alternatively,

and without waiving the legal sufficiency challenge, the evidence is factually

insufficient to show that Appellee voluntarily relinquished care, control and

possession of the children for one year or more and appointment of the Appellee as

sole managing conservator of the children would be in the children’s best interest.

The court abused its discretion in appointing Appellee as the sole managing

conservator of the children, and the court’s judgment should be reversed and

judgment rendered that Appellee be appointed the sole managing conservator of

the children. Alternatively, should the court find the evidence factually insufficient,

the trial court’s judgment should be reversed and the case remanded to the trial

court for a new trial and further fact-finding.

The Appellant’s second argument is that in order for the Appellee to rebut

the parental presumption set out in Tex. Fam. Code §153.131, the Appellee had the

burden of showing, by a preponderance of the evidence, that appointment of the 14 Appellant as sole managing conservator of the children would not be in the

children’s best interest because the appointment would significantly impair the

children's physical health or emotional development. At trial, the Appellant offered

little more than her contentions that she would be a better custodian of the children

or that she has a strong and on-going relationship with the children.

To discharge her burden of rebutting this parental presumption to prevent

Appellee from being appointed sole managing conservator of the children, the

Appellee was required to offer evidence of specific actions or omissions of the

Appellant that demonstrate that appointing Appellant as conservator would result

in physical or emotional harm to the children. Neither the Appellee nor the

witnesses she called to testify offered any evidence that Appellant was presently

engaged in some detrimental immoral or criminal conduct of the type that this and

other Texas courts have found to pose a real, rather than a speculative, harm to a

child’s physical health or emotional development, e.g. illegal drug use, alcohol

abuse, family violence against her spouse or the children, drug dealing, neglect of a

child or other criminal activity.

Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children would

not be in the children’s best interest because the appointment would significantly

impair the children's physical health or emotional development. Thus, the evidence 15 is legally insufficient to support the trial court’s judgment awarding

conservatorship to Appellee on impairment grounds. Alternatively, and without

waiving the legally sufficiency challenge, the evidence is factually insufficient to

show that appointment of the Appellant as sole managing conservator of the

children would not be in the children’s best interest because the appointment

would significantly impair the children's physical health or emotional

development.

Therefore, the evidence is legally and factually insufficient to support the trial

court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in

appointing Appellee as sole managing conservator of the children on voluntary

relinquishment grounds.

ARGUMENT

The following issues and sub-issues are joined in this part of the argument

because they are related to the trial court’s finding of facts that Appellee rebutted

the statutory parental presumption in Tex. Fam. Code §153.373.

Issue No. 1. The trial court abused its discretion in appointing Appellee

as the sole managing conservator and Appellant possessory conservator

of the children.

Issue No. 2. The evidence is legally and factually insufficient to support

the court’s Finding of Fact No. 2. 16 Issue No. 3. The evidence is legally and factually insufficient to support

the court’s Finding of Fact No. 4.

Issue No. 4. The evidence is legally and factually insufficient to support

the court’s finding of fact No. 5 that the Appellee had rebutted the

statutory parental presumption in Tex. Fam. Code §153.373.

Issue No. 5. The court erred in its Conclusion of Law – Conservatorship

because the evidence is legally and factually insufficient to support the

conclusion that Appellee be appointed sole managing conservator of the

children and Appellee should be appointed possessory conservator.

Arguments & Authorities

A. Standard of Review

A trial court’s decision regarding the conservatorship of a child is reviewed

under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464, 469 (Tex.

App.--Fort Worth, 2009). In an abuse of discretion review, legal and factual

insufficiency are not independent grounds for asserting error, but are merely

relevant factors in assessing whether a trial court abused its discretion. Id. at 473.

In applying the abuse of discretion standard, an appellate court in a family law case

must apply a two-prong analysis: (1) whether the trial court had sufficient evidence

17 upon which to exercise its discretion; and (2) whether the trial court erred in

applying its discretion. Id.

B. Voluntary Relinquishment of the Children for One Year or More.

In order for Appellee to rebut the parental presumption set out in TEX. FAM.

CODE §153.3731, the Appellee had the burden of showing, by a preponderance of

the evidence, that 1) the Appellant had voluntarily relinquished actual care,

control, and possession of the children to the Appellee for a period of one year or

more; and 2) that the appointment of the Appellee as conservator of the children is

in the best interest of the children. Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.--

Fort Worth, 2009).

The trial court found that Appellant had voluntarily relinquished the actual

care, control and possession of the children to the Appellee for a period of six

months or more. (CR pp. 108, Finding of Fact Nos. 2). The evidence is legally

and factually insufficient to support the trial court’s finding of fact that Appellee

rebutted the parental presumption in TEX. FAM. CODE §153.373 on grounds that

Appellant had voluntarily relinquished the actual care, control and possession of

1 Sec. 153.373. VOLUNTARY SURRENDER OF POSSESSION REBUTS PARENTAL PRESUMPTION. 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, licensed child-placing agency, or authorized agency 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 or agency as managing conservator is in the best interest of the child. 18 the children to the Appellee for a year or more. See (CR pp. 108-109, Finding of

Fact Nos. 2, 4, 5). Although, the evidence shows that the children were in

Appellee’s possession, the Appellant contends that such possession was not the

result of her having voluntarily relinquished the actual care, control and possession

of her children to the Appellee.

What is Voluntary Relinquishment?

The Family Code does not define “voluntarily relinquish” as that term is

used in section 153.373. However, at least one court has recently construed

“voluntary relinquishment” as meaning “to give up by one’s own free will.” See In

re S.A.H., 420 S.W.3d 911, 922 (Tex. App. --Houston [14th ] Dist., 2014). To

prove voluntary relinquishment, Appellee carries the burden of proving that

Appellant placed L.D.J. III, A.Y.J., W.F.J. and C.J. into Appellee’s care and

possession during on or after December 2012 of her own free will “without any

legal obligation or other external compulsion to do so.” In re S.A.H., 420 S.W.3d

911, 923 (Tex. App. –Houston [14th ] Dist., 2014).

Evidence of Voluntary Relinquishment Offered at Trial:

At trial, Appellee sought to prove that Appellant had relinquished actual

care, control and possession of her biological children, L.D.J, III, A.Y.J, and

19 W.F.J, on December 21, 2012. Appellee avers in her sworn petition that Appellant

had “voluntarily relinquished” the children to her on December 21, 2012. (CR

p.36). Yet, at trial, Appellee testified that it was, actually, her son, Dean

(Appellant’s husband) who had delivered possession of L.D.J, III, A.Y.J, and

W.F.J to her on December 21, 2012 (3RR pp. 35-37).

Appellee testified that she was doing what her son wished her to do. (3RR

pp. 34-37) In connection with this testimony, Appellee referred to her son’s will

and a power of attorney that he had executed as his wishes for her to remain the

conservator of his children after his death. (3RR pp. 35-37; Ex. P-7; Ex. CP-7).

Yet, these instruments are only evidence that Appellant’s husband - the person to

whom Appellant had entrusted her children2 and the person from whom Appellee

received possession of the children3 – was still exercising control and care of the

children by planning for their future. Dean’s will and power of attorney were not

an immediate granting of rights to the children to Appellee, as Appellee contended

at trial, but rather a conditional grant of rights in the future.

Appellant entrusted the care, control, and possession of the children to her

husband when she departed to Mexico, and she also sought to exercise some care

2 (2RR p. 38, line 12-25, p. 39-44, and p.46, line 5-19). 3 (3RR pp. 35-37).

20 and control of children, while she was involuntarily outside the United States, by

requesting that Dean bring the children to visit her in Mexico. (2RR p.28, line 18-

23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). Appellant’s requests to have

her children travel into Mexico to visit her were denied by her husband because he

feared for the children’s safety. (2RR pp.117, line 5-25 and 118, line 1-11).

Appellant’s husband controlled the line of communication between Appellant and

the children, and he exercised control over the children in Appellant’s absence.

(2RR p. 32, line 19). The Appellant communicated with the children via telephone,

in two ways: 1) Dean would call her from Fredericksburg and put the children on

the phone to talk the Appellant ; and 2) when Dean visited her in Mexico, he would

call the Appellee and ask that the children be put on the phone so they could talk

with Appellant. (2RR pp.39-44). This is further evidence of the control that Dean

maintained over their children while Appellant was unable to lawfully enter the

United States. (2RR p. 92, line 1-22, pp. 107-109; 3RR pp. 36-37; Ex. P-4, page

15). It is also evidence that Appellant was exercising parental care and control

over the children. This also begs a very pivotal question: if in fact, Appellant had

voluntarily relinquished the care, control, and possession of the children to

Appellee, wouldn’t she have been contacting Appellee, rather than Dean, to have

the children visit her in Mexico?

21 The will and power of attorney executed by Appellant’s husband, without

Appellant’s knowledge and consent, were the memorialization of the control over

their children he maintained throughout the time Appellant was outside the United

States. These documents prove how he maintained control over their children’s

future, if upon leaving the United States he was not to return during this

immigration process due to an occurrence outside his control. (3RR pp. 36-37)

On cross-examination, Appellee testified that she had no direct evidence that

proved Appellant had voluntarily relinquished the children to her other than her

assumption that the preparation of the children’s bags by Appellant for their

departure with Appellee in December 2012 was evidence of Appellant’s intent to

voluntarily relinquish actual care, control and possession of the children to her.

(3RR pp. 77-79). Appellee admits that the possession she enjoyed during the time

Appellant was to be outside the country was temporary pending Appellant’s return

to the United States. (3RR p. 37, line 9-25). There is no evidence of any agreement

between Appellant and Appellee, either oral or written, whereby Appellee

relinquished voluntary care, control, and possession of the children to Appellee4.

See, e.g., In re S.A.H., 420 S.W.3d 911, 914 and 924 (2014) (mother’s granting of

4 Even assuming, arguendo, that any agreement made by Dean with Appellee could be imputed to Appellant, the evidence militates against even Dean having voluntarily relinquished care, control, and possession of the children to Appellee, as the evidence reveals an indicia of parenting on his part with respect to the children.

22 power of attorney over child to great aunt evidenced voluntary relinquishment).

The evidence shows that Appellant and Appellee had little to no communication

with one another before and after Appellant left the United States. (2RR pp. 39-44,

p.46, line 5-19, p.102, line 13-18, p.118, line 1-25; 3RR pp. 84-87). The only

evidence in the record that can be directly attributed to Appellant having agreed to

Appellee having possession of the children is when Appellee “begged” for the

children to stay with her after Appellant and Dean travelled to Fredericksburg in

April of 2014 to retrieve the children. (3RR p. 45, line 11-25), and Appellant and

Dean agreed to the children staying with Appellee until the end of the school year.

(2RR p.p. 121).

No Evidence of Voluntary Relinquishment

Thus, while Appellant may have been physically apart from L.D.J. III,

W.F.J., and A.Y.J. for all of 2014, there is no evidence that she gave up, by her

own free will, the care, custody, and possession of the children to the Appellee. In

particular, there is no evidence that Appellee ever had possession of C.J., prior to

this suit being filed. She did not obtain possession of C.J. until she obtained such

possession through the Writ of Attachment issued by the Kendall County Court.

See TEX. FAM. CODE §153.131.

Assuming, arguendo, that Appellant had made some agreement with

Appellee to have Appellee care for the children while Appellant went to Mexico to 23 take care of her visa matter, this case would be analogous to Critz v. Critz, 297

S.W.3d 464 (Tex.App.-Fort Worth 2009, no pet.). In Critz v. Critz, the

grandparents of a child were awarded joint managing conservatorship of a child

that they alleged had been voluntarily relinquished to them by the biological

mother of the child for one year or more. Critz v. Critz, 297 S.W.3d 464

(Tex.App.-Fort Worth 2009, no pet.). The Critz Court determined that even in light

of some evidence of separation from the child on the part of the mother for over a

period of one year, there still lacked the relinquishment of control of the child

given her periodic contact with him. Critz, 297 S.W.3d at 474.

In the instant case, Appellant was involuntarily prevented from returning to

the United States which caused her to be away from the children that she had left

in her husband’s care. (2RR p.28, line 18-23, p.32, line 19, p.37, line 23-25, pp.

39-44, p.46). Yet, she periodically spoke with her children and discussed their

well-being with her husband, the children’s parent with access to them while she

resided in Mexico. (2RR pp.39-44). Appellant’s husband limited her access to the

children further by denying her requests to have her children brought to her while

she resided outside the United States. (2RR pp. 39-44, p.46, line 5-19, p.102, line

13-18, p.118, line 1-25; 3RR pp. 84-87). Additionally, Appellant requested her

children be returned to her in April 2014 when she and her husband travelled to

24 Fredericksburg, Texas to retrieve the children from Appellee; which was

acknowledged by Appellee. (2RR pp.120-121; 3RR p. 45, line 11-25).

As in Critz, the evidence of voluntary relinquishment of the children is not

present in this case. Appellant maintained as much contact with her children as she

had been accustomed to given the great efforts her husband undertook in caring for

their children in her absence, and the impossibility of her physical presence within

the United States given the fragile nature of her immigration status. (2RR p.28, line

18-23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). In Critz, the Court found

sufficient contact with the child by the mother and that she had requested return of

her child. Critz v. Critz, 297 S.W.3d at 474 & n.39 (voluntary relinquishment

ended when mother filed answer to conservatorship petition). Assuming, arguendo,

that Appellant had delivered possession of the children to Appellee rather than to

her husband, Dean, when she left for Mexico, such act could not be deemed an act

of free will. Appellant’s inability to physically take possession of her children and

care for them as she had done prior to her departure was not a completely

voluntary decision by her but rather a product of an external compulsion, i.e.,

having to leave to take care of her visa matter. This should be considered when

determining whether Appellee’s physical possession of the children was truly an

act of voluntary relinquishment by Appellant of her children. (2RR p.28, line 18-

23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46; Ex. P-). See In re S.A.H., 420 25 S.W.3d 911, 922 (Tex. App. --Houston [14th ] Dist., 2014)(relinquishment must be

an act of free will done without any legal obligation or other external compulsion

to do so). To require Appellant to have unlawfully entered the United States to visit

and care for the children in order to be able to defeat Appellee’s conservatorship

action would be unreasonable because for her to do so would jeopardize her ability

to lawfully reside within the United States in accordance with federal law. This

would assure that Appellee could now use this unlawful act against the Appellant

to rebut the parental presumption in Tex. Fam. Code §153.131.

Further, there is no evidence that Appellee ever had possession of the

youngest child, C.J., at any time prior to July 11, 2014 when she sought and

obtained a Writ of Attachment for all four children from a Kendall County court.

(3RR pp. 95-101; Ex. P-5). Nor did Appellee proffer any evidence that she had

filed any action to assert her rights to the children prior to Appellant and her

husband travelling to Fredericksburg, Texas to pick up their children. Additionally,

there was no evidence proffered by Appellee that she had any relationship with the

child, C.J., after she was born in Mexico. In fact, Appellee provided no evidence

that she sent gifts, cards, care packages or the like to her new granddaughter

outside the United States. There was no evidence she ever inquired as to the health

or well-being of this child. The record is devoid of any evidence that she had the

possibility to assert any claim of conservatorship to this child, due to fact that she 26 did not possess the child the requisite time period prior to the institution of the

instant cause. (CR p. 59) See Tex. Fam. Code §153. 373.

Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children on this

relinquishment ground would be in the children’s best interest, thus the evidence is

legally insufficient to support the trial court’s Finding of Fact Nos. 2, 4, and 5 (CR,

pp. 108-109). Alternatively, the evidence is factually insufficient, as the great

weight of the evidence is against any voluntary action or omission on Appellant’s

part in voluntarily relinquishing actual care, control and possession to any other

person aside from her husband. (2RR p.28, line 18-23, p.30, line 22-24, p. 31, line

8-10, p.32 line 19, p.38, line 12-25 and p.46, line 5-19).

The trial court abused its discretion in appointing Appellee as sole managing

conservator of the children on grounds of voluntary relinquishment because the

evidence is legally and factually insufficient to establish that Appellant had

voluntarily relinquished the care, control, and possession of the children to

Appellee.

Therefore, the court abused its discretion in appointing Appellee as the sole

managing conservator of the children, and the court’s judgment should be reversed

and judgment rendered that Appellee be appointed the sole managing conservator

of the children. Alternatively, should the court find the evidence factually 27 insufficient, the trial court’s judgment should be reversed and the case remanded to

the trial court for a new trial and further fact-finding.

ARGUMENT (cont’d)

The following issues and sub-issues are joined in this part of the argument

because they are related to the trial court’s finding of facts that Appellee rebutted

the statutory parental presumption in TEX. FAM. CODE §153.131.

Issue No. 6. The trial court abused its discretion in appointing Appellee

as the sole managing conservator and Appellant possessory conservator

Issue No. 7. The evidence is legally and factually insufficient to support the

court’s Finding of Fact No. 2.

Issue No. 8. The evidence is legally and factually insufficient to support

Issue No. 9. The evidence is legally and factually insufficient to support

the court’s finding of fact No. 5 that Appellee rebutted the statutory

parental presumption in Tex. Fam. Code §153.131.

Issue No. 10. The court erred in its Conclusion of Law – Conservatorship

because the evidence is legally and factually insufficient to support the

conclusion that Appellee be appointed sole managing conservator of the

children and Appellee should be appointed possessory conservator. 28 Arguments & Authorities

A trial court trial court’s decision regarding the conservatorship of a child is

reviewed under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464,

469 (Tex. App.--Fort Worth, 2009). In an abuse of discretion review, legal and

factual insufficiency are not independent grounds for asserting error, but are

merely relevant factors in assessing whether a trial court abused its discretion. Id.

at 473. In applying the abuse of discretion standard, an appellate court in a family

law case must apply a two-prong analysis: (1) whether the trial court had sufficient

evidence upon which to exercise its discretion; and (2) whether the trial court erred

in applying its discretion. Id.

B. Impairment of Children’s Physical Health or Emotional Development

“The presumption that the best interest of a child is served by awarding

custody to a natural parent is deeply embedded in Texas law.” Lewelling v.

Lewelling, 796 S.W.2d 164, 166 (Tex.1990). Therefore, section 153.1315 of the

5 Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED MANAGING CONSERVATOR. (a) Subject to the prohibition in Section 153.004, 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, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.

29 Texas Family Code requires that the parent be appointed sole managing

conservator or both parents be appointed joint managing conservators unless the

nonparent proves by a preponderance of the credible evidence 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 Ann. § 153.131 (Vernon 2008); Gray v. Shook,

329 S.W.3d 186, 196 (Tex.App.-Corpus Christi 2010). The Family Code's

presumption in favor of parental custody places a “heavy burden on a nonparent

seeking custody.” May v. May, 829 S.W.2d 373, 376 (Tex.App.-Corpus Christi

1992, writ denied). To rebut the presumption, “the evidence must support a logical

inference that some specific, identifiable behavior or conduct of the parent will

probably cause significant physical or emotional harm to the child.” Id. at 377.

Any “close call” must be resolved in favor of the parent over the nonparent. Gray

v. Shook, 329 S.W.3d at 196 (citing Chavez v. Chavez, 148 S.W.3d 449, 459

(Tex.App.-El Paso 2004, no pet.)).

Evidence of Impairment of Children’s Physical Health or Emotional Development Offered at Trial: In addition to her testimony, Appellee called two witnesses in an attempt to

prove that Appellant was an unfit parent. The first witness that Appellee called to

30 testify about the Appellant was Evelia Salinas. Ms. Salinas’ testified about events

that had occurred about 3 or 4 years prior to the trial date, and had little to no

bearing on Appellant’s ability to care for her children. (2RR p. 153, line 6-10). Ms.

Salinas’ testimony can be summarized, as follows: 1) that she had been around

Appellant and her children approximately four or five times in the year 2011. (2RR

p. 153, line 6-10); 2) that she believed her brother in law acted inappropriately

with Appellant at a party; and 3) that she believed Appellant was a devil

worshipper because of some ring that Appellant was wearing symbolizing a cult

religion commonly referred to as “La Santa Muerte”. (2RR pp.153-177).

However, Ms. Salinas’ testimony did not encompass Appellant having any

problems with alcohol, drugs, criminal convictions or a known history of family

violence. (2RR pp.153-177). On cross-examination, Ms. Salinas admitted not

having any personal knowledge about Appellant’s current abilities to care for her

children or religious beliefs at the time of trial. (2RR pp.171-177). Most

importantly, Ms. Salinas’ testimony offered no evidence of any specific,

identifiable behavior, conduct or omissions of the parent that would, to a

reasonable degree of certainty, probably cause significant impairment to the

children’s physical or emotional development. (2RR pp.153-177); See Gray v.

Shook, 329 S.W.3d at 196 (evidence of harm must rise above mere speculation and

be attributable to a specific, identifiable act or omission of the parent). 31 The second witness called by the Appellee was Herminia Martinez. Ms.

Martinez offered less evidence than Ms. Salinas of any harm that would come to

the children if Appellant would be appointed their sole managing conservator.

(3RR pp.5-19). Mrs. Martinez testified to knowing Appellee for over twenty years

and knew her both personally and professionally. (3RR p.5-10). Yet, Mrs.

Martinez had no personal knowledge of Appellant’s parenting abilities nor did she

ever witness Appellant around Appellant’s children. (3RR p. 17, line 15-20). She

testified that her personal knowledge was limited to Appellee’s interaction with the

children and served to simply bolster Appellee’s capability of being a good

caretaker of the children. (3RR p. 17, line 5-20). Mrs. Martinez’ confirmed the

lack of communication Appellee had with Appellant before and after she left the

United States, and that Appellant’s husband communicated with Appellee

regarding the children. (3RR pp.15-16). Mrs. Martinez offered no evidence of

Appellant’s use or abuse of alcohol or drugs, no evidence of a criminal history, and

no evidence of any history of family violence. (3RR pp.5-19). Ms. Martinez

testimony about Appellee being a capable caretaker of the children does nothing to

rebut the parental presumption requiring that Appellant be appointed the sole

managing conservator of the children. The Appellee, as non-parent, has the burden

to show that appointment of the Appellant parent as managing conservator would

significantly impair the child, either physically or emotionally, is not met by 32 evidence that shows she would be a better custodian of the child or that she has a

strong and on-going relationship with the child; further, evidence of past

misconduct alone is insufficient. In re S.M.D. 329 S.W.3d 8 (Tex. App. – San

Antonio, 2010)(reh’g overruled, rev. dism’d).

Appellee testified but offered no evidence that proved that Appellant’s

appointment as sole managing conservator of the children would have significantly

impaired the children’s physical health or emotional development. (3RR pp. 20-

122). Appellee testified that she had no evidence of Appellant directly

relinquishing the children to her. (3RR pp.77-79, p.117, line 22-25 and p. 118).

Appellee’s testimony provides no evidence that Appellant used or abused alcohol

or drugs, whether she had a criminal record, and/or a history of family violence.

(3RR p.65). Appellee’s testimony does nothing more than solidify that her only

motive in this suit was to prevent Appellant from having sole managing

conservatorship of her children because of an unsubstantiated belief that Appellant

had a hand in her son’s death and is an unfit mother, generally. (3RR pp. 66-67,

pp.70-71, pp. 93-95, pp.105-107, pp. 110-113, pp. 115-118, p.121). Yet, Appellee

could not provide direct evidence of the source of her misguided opinion, nor did

she provide any evidence that these beliefs were a legitimate concern for the trial

court. Appellee did not meet the legally or factually sufficient threshold of

evidence required to prove by a preponderance of such evidence that Appellant’s 33 appointment as sole managing conservator of her biological children would

significantly impair the physical health or emotional development of these

children. Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014), Critz v. Critz, 297

S.W.3d 464, 470 (Tex.App.-Fort Worth 2009, no pet.), Chavez v. Chavez, 148

S.W. 3d 449, 459-60 (Tex.App.-El Paso, no pet.), See, also, Tex. Fam. Code Ann.

§153.131.

The only evidence of Appellant’s capability of caring for her children and

being an active caretaker was provided by the witness, Rose Lerma. (3RR p.129)

Ms. Lerma helped Appellant from April 2014 until July 2014 with her children and

the general day to day task of keep her home in order. (3RR p.131-132). Ms.

Lerma testified the Appellant was a great mother and was a great caretaker of her

children. (3RR pp.133-135). Ms. Lerma also testified that she never witnessed any

violence on the part of Appellant, nor did she witness any use of drugs or alcohol

the entire time she worked for her. (3RR pp. 133-135). Ms. Lerma also testified

that Appellant had stayed a considerable amount of time with her family in Mexico

and knew her to be a good person. (3RR p.130). The reason she ceased her

employment with Appellant was due to the children being removed from

Appellant’s home on July 11, 2014 by Appellee. (3RR p.133). This witness

provided the most insight as to Appellant’s ability as a parent and a mother to the

children in this suit in relation to the time period that these issues were being 34 litigated. The testimony of all Appellee’s witnesses was diminished with the honest

and unbiased testimony offered by Ms. Lerma. She clearly and unequivocally

voiced her opinion of Appellant as a capable mother that loved her children. (3RR

pp.129-136).

To discharge her burden of rebutting this parental presumption to prevent

Appellant from being appointed sole managing conservator of the children, the

Appellee was required to offer evidence of specific actions or omissions of the

Appellant that demonstrate that appointing Appellant as conservator would result

in physical or emotional harm to the children. Lewelling v. Lewelling, 796 S.W.2d

164 (Tex. 1990); Brigham v. Brigham 863 S.W.2d 761 (Tex.App.- Dallas,

1993)(citing Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990)).

The Appellee offered no evidence that Appellant was presently engaged in

some detrimental immoral or criminal conduct that this and other Texas courts

have found to pose a real, rather than a speculative, harm to a child’s physical

health or emotional development, e.g. illegal drug use, alcohol abuse, family

violence against her spouse or the children, drug dealing, or other criminal activity.

May v. May, 829 S.W.2d 373, 376 (Tex. App.-Corpus Christi 1992, writ denied;

see, e.g. Compton v. Pfannenstiel, 428 S.W.3d 881 (Tex. App.--Houston [1st Dist.]

2014)(mother’s drug-dealing, neglect and physical abuse of children would result

in physical or emotional harm to children). The trial court erred in finding that 35 Appellant’s appointment as sole managing conservator was not in the children’s

best interest, particularly in light of the legally and factually insufficient evidence

at trial on this issue. Shook v. Gray, 381 S.W.3d 540 (Tex. 2012), See, TEX. FAM.

CODE ANN. §153.002.

Gray v. Shook, 329 S.W.3d 186, (Tex.App.-Corpus Christi 2010) should set

the standard for deciding whether appointing Appellant as sole managing

conservator will impair the children’s physical or emotional development. In Gray,

this honorable court reversed the trial court on the grounds that the trial court had

abused its discretion in appointing a grandmother sole managing conservator of the

child made the subject of the underlying suit in that case, in light of the absence of

a preponderance of the evidence that father’s appointment as managing

conservator of the child would significantly impair the child’s physical health or

emotional development. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus

Christi 2010, rev’d). This Court found that the potential for future harm and the

lack of present harm were insufficient to substantiate a finding of fact or

conclusion of law that the parent’s appointment as sole managing conservator

would significantly impair the child’s physical health or emotional development,

when that speculative harm was simply “uprooting” the child from their present

residence. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010,

rev’d)(citing May v. May, 829 S.W.2d 373, 376-77 (Tex.App.-Corpus Christi 36 1992, writ denied), See also, Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.

1990). This court quoted the Texas Supreme Court’s holding in Lewelling v.

Lewelling that “specific acts or omissions of the parent that demonstrate an award

of custody to the parent would result in physical or emotional harm to the child”

would be required to be established by a preponderance of the evidence by the

nonparent to meet the standard of proof under TEX. FAM. CODE ANN. §153.131. Id.

The Supreme Court in Shook affirmed the holding by this court regarding the lack

of legally and factually sufficient evidence proffered at trial by the nonparent.

Shook v. Gray, 381 S.W.3d 540, 543 (Tex. 2012). The Supreme Court agreed with

this court’s analysis of the evidence and agreed with remanding the case back to

the trial court for a hearing on conservatorship. Id. In the instant case, the record is

devoid of any evidence that Appellant posed an actual danger to her children or

that future harm would be a concern, if Appellant were to be appointed sole

managing conservator of her children. (3RR p.117, line 22-25 and p. 118). This

court should find as it did in Gray that the trial court abused its discretion in

appointing Appellee sole managing conservator of all four children, without legally

and factually sufficient evidence to support its Findings of Fact Nos. 2, 4 and 5.

Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010, rev’d).

Thus, Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children would 37 not be in the children’s best interest because the appointment would significantly

impair the children's physical health or emotional development. Alternatively, and

without waiving the legally sufficiency challenge, the evidence is factually

insufficient to show that appointment of the Appellant as sole managing

conservator of the children would not be in the children’s best interest because the

appointment would significantly impair the children's physical health or emotional

Therefore, the evidence is legally and factually insufficient to support the

trial court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in

appointing Appellee as sole managing conservator of the children on voluntary

relinquishment grounds. The court erred in not making findings of facts which

demonstrated Appellant’s voluntary relinquishment that would support these

Findings of Fact Nos. 2, 4 and 5.

The evidence presented by the Appellee to rebut the parental presumption

through either voluntary relinquishment or significant impairment grounds is

legally and factually insufficient to support the trial court’s findings of fact. Thus,

the trial court’s judgment should be reversed and judgment rendered for Appellant.

Alternatively, should the court find the evidence factually insufficient, the trial

court’s judgment should be reversed and the case remanded to the trial court for a

new trial and further fact-finding. 38 PRAYER

Appellant requests this Court consider the issues presented for review

and that upon such consideration that the trial court’s judgment should be reversed

and judgment rendered for Appellant. Alternatively, should the court find the

evidence factually insufficient, the trial court’s judgment should be reversed and

the case remanded to the trial court for a new trial and further fact-finding.

CERTIFICATE OF COMPLIANCE

Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby certify

that this brief contains 7,542 words (excluding the caption, table of contents, table

of authorities, signature, proof of service, certification and certificate of

compliance). This is a computer-generated document created in Microsoft Word,

using 14-point typeface for all text, except for footnoted which are 12-point

typeface. In making this certificate of compliance, I am relying on the word count

provided by the software used to prepare the document.

39 Respectfully submitted, PEÑA GARCIA GUERRERO PLLC 900 Kerria Avenue McAllen, TX 78501 t: 956.948.2221 f: 888.422.6821

By: /s/ Francisco Guerrero II Francisco Guerrero, II SBN 24047588 fg@pgglex.com ATTORNEY FOR APPELLANT

CERTIFICATE OF SERVICE

I, Francisco Guerrero II, certify that a true and correct copy of the foregoing APPELLANT’S BRIEF was served on opposing counsel in accordance with the Texas Rules of Appellate Procedure 9.5 on the 21th day of July 2015

VIA FAX

The Firm of Roel "Robie" Flores 3331 N. Ware Rd Mc Allen, Texas 78501 Ph. (956) 631-7188 Fx. (956) 631-7268 robiefloreslaw@att.net /s/ Francisco Guerrero II Francisco Guerrero II

40 APPENDIX

Tab No. 1 – Trial court’s final judgment

Tab No. 2 – Trial court’s findings of fact and conclusions of law

Tab No. 3 – Critz v. Critz

Tab No. 4 – Gray v. Shook

Tab No. 5 – Shook v. Gray

41 Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

297 S.W.3d 464 Shelley Durrell Haines CRITZ and Roger Allen Critz, Appellant/Cross-Appellant, v. Roger Allen CRITZ, Joseph C. Critz, and Sharon A. Critz and Shelley Durrell Haines Critz, Appellees/Cross-Appellee. No. 2-08-015-CV. Court of Appeals of Texas, Fort Worth. September 17, 2009. [297 S.W.3d 467] Jacquelyn A. Flynt, Monique Lopez-Hinkley, Leagl Aid of Northwest Texas, Fort Worth, TX, for Shelley Durrell Haines Critz. Jeremy C. Martin, Dallas, TX, for Roger C. Critz. Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, TX, Sarraine S. Krause, Law Office of Sarraine S. Krause, Fort Worth, TX, for Joseph C. Critz, Sharon A. Critz. Panel: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ. OPINION JOHN CAYCE, Chief Justice.

Appellant Shelley Durrell Haines Critz remainder of 2004, Shelley was hospitalized due complains of the trial court's final decree of to complications from her pregnancy. She saw divorce appointing appellees Joseph C. Critz and Ryder one day in September, two days in Sharon A. Critz as joint managing conservators October, no days in November, and three days in of Ryder Critz. We reverse and remand. December. She also kept in contact with him by phone. During Christmas, she drove to the I. Background Grandparents' house to see Ryder but she became sick on the return trip and miscarried. Roger and Shelley Critz met while they were both working at a nightclub in the early On January 27, 2005, Roger filed an 1990s. In February 1998, Shelley gave birth to original petition for divorce requesting that he be their only child, Ryder, and in September of that appointed primary joint managing conservator of year, Shelley and Roger married. Ryder. The same day, the Grandparents filed a petition intervening into the divorce suit seeking In February 2003, after an argument about primary joint managing conservatorship on the Roger's alleged drug use, Roger moved out of grounds that Roger and Shelley had voluntarily their house. Shelley remained in the house with abandoned Ryder, and that appointing Roger or Ryder for another six months before she learned Shelley as a primary conservator would that it was being foreclosed. significantly impair Ryder's physical health or Both Shelley and Ryder eventually moved emotional development. in with Roger's parents, Joseph and Sharon Critz Shelley filed answers to the petitions, along (the Grandparents). While Shelley and Ryder with a counterpetition for divorce were living with the Grandparents, Shelley met and began dating Chris Martinez. In January of [297 S.W.3d 468] 2004, she began staying with Chris and away from the Grandparents' house on weekends. In requesting that she be appointed sole managing May 2004, Shelley became pregnant with conservator, and contending that appointment of Chris's child. the Grandparents or Roger as joint managing conservators would not be in Ryder's best In June 2004, Shelley moved in with Chris interests. and his parents while Ryder continued to stay with his Grandparents. During much of the

-1- Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

On May 12, 2005, the trial court issued insufficient to support the trial court's temporary orders that gave the Grandparents conservatorship decision, and she requested the primary custody of Ryder, and delineated court to issue findings of fact and conclusions of specific times when Shelley and Roger had law related to its decree.3 The Grandparents rights to possession. responded to the motion for new trial and submitted proposed findings of fact and In November 2006, Todd Maslow, a conclusions of law, which the trial court caseworker for Family Court Services, adopted. In the court's findings of fact, the court submitted a social study report recommending found that the Grandparents "rebutted the that Ryder should continue to reside with the parental presumption" and that it was in Ryder's Grandparents, but that he should continue to see best interest that the Grandparents, Shelley, and Shelley as much as possible. Roger be appointed joint managing conservators. This appeal and cross-appeal In March 2007, the Grandparents filed a followed. "parenting plan" for Ryder, which intended to "establish guidelines," "state the importance of II. Issues on Appeal [Ryder's] well being," and "establish goals for emotional support, education, and discipline." Shelley complains of the trial court's order The parenting plan described their intentions for appointing the Grandparents as joint managing Ryder's education (including plans related to his conservators of Ryder. She contends that the ADHD),1 his after-school care, his medical trial court erred in failing to make specific needs (including a list of health care providers findings of fact identifying the basis for its he would use), and Roger's and Shelley's conclusion that the proposed roles. The plan proposed that they, Shelley, and Roger all be appointed as joint [297 S.W.3d 469] managing conservators, that the Grandparents should establish his primary residence, and that parental presumption was rebutted by the Shelley and Roger should have designated times Grandparents. She further contends that the of possession, including times during the evidence is legally and factually insufficient to summer and on holidays. prove that she relinquished control of Ryder for more than one year and that she would The issues regarding Ryder's custody were significantly impair Ryder's physical or tried before the trial court in March 2007. After emotional well-being. Roger complains of the the parties rested and counsel made closing trial court's failure to specify his periods of arguments, on March 30, 2007, the trial court possession and access. appointed the Grandparents, Shelley, and Roger as joint managing conservators of Ryder, with A. Standard of Review the Grandparents having primary possession and A trial court's decision regarding the the authority to establish his permanent conservatorship of a child is reviewed under an residence. The trial court set particular dates and abuse of discretion standard.4 To determine times for Shelley to have access to Ryder, but whether a trial court abused its discretion, we stated that Roger would have such access only must decide whether the trial court acted without "at such times as is agreed upon" between him reference to any guiding rules or principles; in and his parents. In October 2007, the trial judge other words, we must decide whether the act was signed a final decree of divorce that incorporated arbitrary or unreasonable.5 Merely because a these decisions.2 trial court may decide a matter within its In November 2007, Shelley filed a motion discretion in a different manner than an appellate for new trial, asserting that the evidence court would in a similar circumstance does not presented at trial was legally and factually

-2- Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

demonstrate that an abuse of discretion has [t]he presumption that a parent occurred.6 should be appointed or retained as managing conservator of the An abuse of discretion does not occur child is rebutted if the court where the trial court bases its decision on finds that: conflicting evidence.7 Furthermore, an abuse of discretion does not occur as long as some (1) the parent has voluntarily evidence of substantive and probative character relinquished actual care, control, exists to support the trial court's decision.8 and possession of the child to a nonparent, licensed child- B. The Parental Presumption placing agency, or authorized agency for a period of one year In her first issue, Shelley contends that the or more, a portion of which was trial court abused its discretion when it within 90 days preceding the appointed the Grandparents as joint managing date of intervention in or filing conservators of Ryder without making specific of the suit; and findings related to the parental presumption described by sections 153.131 and 153.373 of (2) the appointment of the the family code.9 Section 153.131 provides: nonparent or agency as managing conservator is in the (a) Subject to the prohibition in best interest of the child.12 Section 153.004,10 unless the court finds that appointment of Collectively, these statutes provide that it is the parent or parents would not presumed that the appointment of "the parents of be in the best interest of the a child" as joint managing conservators is in the child because the appointment best interest of the child.13 To overcome this would significantly impair the presumption, a court must find that (1) child's physical health or appointment of the parents would significantly emotional development, a impair the child's physical health or emotional parent shall be appointed sole development, (2) the parents have exhibited a managing conservator or both history of family violence, or (3) the parents parents shall be appointed as voluntarily relinquished care, control, and joint managing conservators of possession of the child to a non-parent for a year the child. or more.14 A trial court's conclusion that the parental presumption has been rebutted must be (b) It is a rebuttable supported by specific findings of fact identifying presumption that the the factual basis for the finding, and the failure appointment of the parents of a to make such findings constitutes error.15 child as joint managing conservators is in the best Shelley contends that the trial court was interest of the child. A finding required to specifically make one of these three of a history of family violence findings to appoint the Grandparents as joint involving the parents of a child managing conservators. Relying on a Texas removes the presumption Supreme Court opinion construing a former version of the family code, the Grandparents [297 S.W.3d 470] assert that the presumption does not apply and, under this subsection.11 therefore, no findings were required because Shelley and Roger were also made joint Section 153.373 states that managing conservators.

-3- Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

In Brook v. Brook,16 the supreme court the appointment would be in the child's best construed former family code section 14.01, interest.20 This is no longer the law.21 which provided, in pertinent part, as follows: Under current section 153.131, it is now (a) In any suit affecting the presumed that the appointment of both parents parent-child relationship, the as joint managing conservators is in the child's court may appoint a sole best interest.22 This substantive change in the managing conservator or may parental presumption law is not addressed by the appoint joint managing dissent. When Brook was decided, there was no conservators. A managing rebuttable presumption that both parents be conservator must be a suitable, appointed joint managing conservators. Thus, competent adult, or a parent, or under former law, so long as one parent was an authorized agency. If the appointed a joint managing conservator, as was court finds that the parents are the case in Brook, the parental presumption was or will be separated, the court satisfied. Under section 153.131, however, a shall appoint at least one non-parent may not be appointed a joint managing conservator. managing conservator without overcoming the presumption as to both parents.23 The plain (b) A parent shall be appointed wording of the statute makes clear that this sole managing conservator or presumption applies when a non-parent seeks both parents shall be appointed managing conservatorship in lieu of or in as joint managing conservators addition to both parents. There is no language in of the child unless: section 153.131 that indicates that the presumption is inapplicable to the appointment (1) the court finds that of non-parents as joint managing conservators appointment of the parent or when the trial court also appoints one or both parents would not be in the best parents. Nor does Brook compel this result. interest of the child because the appointment would significantly [297 S.W.3d 472] impair the child's physical health or emotional The dissent suggests that we have departed development.17 from binding precedent of the supreme court and of this court. We clearly have not. Brook, and [297 S.W.3d 471] this court's nearly twenty-year-old decision following it,24 interpreted and applied a former The supreme court held that section 14.01 statute that did not contain a parental authorized a trial court to appoint a non-parent presumption requiring that both parents be as a joint managing conservator without proof appointed joint managing conservators unless that appointment of a parent or the parents rebutted. Because Brook construed a repealed would significantly impair the child's health or statute that is substantively different than the development, so long as the non-parent shares statute at issue here, we are, of course, not custody with a parent.18 bound under the doctrine of stare decisis by the Unlike current section 153.131, former Brook court's interpretation of the repealed section 14.01 contained no rebuttable statute.25 presumption that appointment of both parents as The dissent takes the novel position that the joint managing conservators is in the child's best presumption does not apply to the appointment interest.19 At the time Brook was decided, a trial of the joint managing conservators in this case, court was authorized to appoint parents as joint but that it does apply to which joint managing managing conservators only upon finding that conservator should determine the child's

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permanent residence. As written by the In an abuse of discretion review, legal and legislature, however, section 153.131 contains factual insufficiency are not independent no language that indicates a legislative intent grounds for asserting error, but are merely that a parental presumption applies to the issue relevant factors in assessing whether a trial court of primary custody apart from the determination abused its discretion.33 Thus, in applying the of joint managing conservatorship. The title to abuse of discretion standard, an appellate court section 153.131 is "Presumption That Parent to in a family law case must apply a two-prong be Appointed Managing Conservator."26 analysis: (1) whether the trial court had Moreover, the statute expressly refers to a sufficient evidence upon which to exercise its presumption that a parent should be appointed discretion; and (2) whether the trial court erred "sole managing conservator," or that both in applying its discretion.34 parents should be appointed "joint managing conservators"—it makes no reference to a We may sustain a legal sufficiency separate presumption for determining which challenge only when (1) the record discloses a joint managing conservator chooses the child's complete absence of evidence of a vital fact, (2) permanent residence.27 To reach the result that the court is barred by rules of law or of evidence the dissent advocates, we would be required to from giving weight to the only evidence offered legislate from the bench and convert the to prove a vital fact, (3) the evidence offered to managing conservator presumption into a prove a vital fact is no more than a mere "primary custody" presumption with no statutory scintilla, or (4) the evidence establishes authority for doing so. We are not inclined to do conclusively the opposite of a vital fact.35 In this.28 determining whether there is legally sufficient evidence to support the finding under review, we We hold that the trial court correctly must consider evidence favorable to the finding followed express provisions of the family code if a reasonable factfinder could and disregard by applying the parental presumption to the evidence contrary to the finding unless a appointment of the Grandparents as joint reasonable factfinder could not.36 managing conservators in this case. Upon finding that the parental presumption was When reviewing an assertion that the rebutted, however, the trial court failed to make evidence is factually insufficient to support a findings specifically stating how the finding, we set aside the finding only if, after presumption was rebutted.29 The failure to make considering and weighing all of the evidence in such findings is error.30 This error was waived, the record pertinent to that finding, we however, because Shelley did not timely request determine that the evidence supporting the additional findings of fact.31 Shelley's first issue finding is so weak, or so contrary to the is overruled. overwhelming weight of all the evidence, that the answer should be set aside and a new trial [297 S.W.3d 473] ordered.37

C. The Sufficiency of the Evidence to 2. Voluntary Relinquishment of Ryder Overcome the Parental Presumption for a Period of One Year or More

We now turn to Shelley's contention in her The Grandparents contend that Shelley's second issue that insufficient evidence was sparse contact with Ryder from January 2004 to presented by the Grandparents to rebut the January 2005 proves that she voluntarily presumption through either voluntary relinquished actual care, control, and possession relinquishment or significant impairment of Ryder to them. We disagree. grounds.32 Between January and April of 2004, 1. Standards of Review Shelley maintained her permanent residence

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with Ryder and saw him on a majority of days. finding of significant impairment, we agree with While she was absent from Ryder on several Shelley that the evidence is factually insufficient occasions during that time period, there is no to support such a finding. evidence that she intended to surrender the care of Ryder. Impairment must be proved by a preponderance of the evidence indicating that [297 S.W.3d 474] some specific, identifiable behavior or conduct of the parent, demonstrated by specific acts or After Shelley moved out of the omissions of the parent, will probably cause that Grandparents' residence in June 2004, the time harm.41 This is a heavy burden that is not she spent with Ryder decreased.38 But, the satisfied by merely testimony of both Shelley and Sharon shows that, although Shelley was often physically [297 S.W.3d 475] separated from Ryder in the latter part of 2004, she did not intend to relinquish control of him. showing that the non-parent would be a better custodian of the child.42 "Close calls" should be Shelley testified that she had agreed with decided in favor of the parent.43 the Grandparents that Ryder would stay with them long enough to complete his school year, Evidence of past misconduct is not alone and that she would change Ryder's school and sufficient to show present unfitness.44 "If the have him live with her the following year. parent is presently a suitable person to have Shelley stated that she talked with the custody, the fact that there was a time in the past Grandparents about this plan "[w]eekly from the when the parent would not have been a proper moment that [she] didn't stay at their house" and person to have such custody is not controlling."45 that she was "made to believe" that the change was going to happen. Sharon testified that she The evidence offered at trial was as was aware of these plans when Shelley moved follows: out of her house, and that she knew that Diane Booth, a licensed social worker who Shelley's intention was to take Ryder back. She conducted another study in 2006 after Maslow also admitted that even when Shelley moved issued his report, testified that Joseph and away, she was "still involved in decisions Sharon were "great grandparents" and that regarding Ryder" and, most importantly, that Shelley was a good mom who never put Ryder Shelley "never actually, really relinquished ... in any danger and was generally doing a good control completely." job parenting him. She also reported that Roger Thus, while Shelley may have been had drug addiction problems, that he described physically apart from Ryder for a substantial himself as a "practicing alcoholic," and that he part of 2004, there is no evidence that she seemed to be angry over the fact that he had voluntarily relinquished actual care, custody, been adopted, but that he had steady work and and control of him to the Grandparents.39 that he "loved being around Ryder." She further explained that when she met with Ryder, he was 3. Significant Impairment of Ryder's happy, but he was also confused about his living Physical Health or Emotional Development situation regarding the various people who had requested custody of him. She also testified that Shelley also contends that the evidence is she received a letter from Ryder stating that he legally and factually insufficient to establish that wanted to live with Shelley. appointing her and Roger as joint managing conservators would significantly impair Ryder's Booth recommended that Ryder be placed physical health or emotional development.40 with Shelley and opined that it would be in Although there is some evidence to support a Ryder's best interest if the Grandparents fulfilled

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a secondary role in a more typical grandparent but he does not have the ability to be Ryder's relationship with Ryder. primary managing conservator.

Barbara Martinez, Chris's mother, testified Roger testified that he resided with his that Shelley was a good mother who took good parents for three years preceding the trial, that he care of Ryder when he was at her house. was currently employed in the information According to Mrs. Martinez, Shelley bathed technology field, and that he had previously Ryder, did his laundry, disciplined him, and been employed as a bartender at several helped him with his homework. Kyra Anderson, locations. He stated that two years had passed Ryder's first grade teacher during 2004 and from the last time he used illegal drugs and that 2005, testified that the Grandparents were very he drank alcohol about once a week at the time involved in his school activities and in the of trial, becoming drunk occasionally. He progress Ryder was making in the classroom, expressed a desire to be a good father and also that Ryder "fully enjoyed being with" them, and gave his opinion that Ryder should continue to that Shelley was not involved with his reside with the Grandparents because he felt schooling.46 Ryder needed more "structure and support," but that Shelley should have equal time with Ryder Dee Henderson, who had custody of and that she "loves [Ryder] very much." Shelley's daughter Lexi, testified that she had However, Roger also testified that in January concerns about Shelley's ability as a parent 2005 Shelley threatened to take Ryder away so because Shelley was unreliable and had only that he and the Grandparents would never see limited contact with Lexi.47 She also testified, Ryder again.48 He further said that when he first however, that she had no concerns that Lexi separated from Shelley he was concerned for would be physically harmed while with Shelley, Ryder's safety because he believed Shelley did that she had no concerns about Lexi's safety at not take care of Ryder's physical needs. the Martinezes' house, and that she had never seen Shelley be physically or verbally abusive to Sharon testified that she and Joseph first Lexi or Ryder. began to keep Ryder at their home every other weekend when he was born, and then they Cathy Baczynski, a licensed professional progressed to keeping him every weekend and counselor, testified that, during counseling, part of the summer before Shelley and Ryder Roger discussed identity issues related to moved in with them in 2003. She also contended that Shelley was not very involved in Ryder's [297 S.W.3d 476] early education and that she often returned his adoption as well as his substance abuse Ryder late from her Wednesday visits with him. history, his need to overcome his ADHD, his Sharon explained that upon picking up Ryder frustration about living with his parents, and his from one of his visits to the Martinezes' house, lack of communication with Shelley. Baczynski she became concerned about broken glass also explained that she met with Ryder and surrounding a trampoline, a murky swimming gained the impression from him that Roger pool, and an open flame on the stove, which needed to be much more involved in Ryder's Shelley stated was used for heating. She was life. She also stated that Ryder seemed to be also concerned that Shelley had taken Ryder to happy living with his Grandparents and that his the nightclub during a poker tournament that needs were well met in their home, but that he was hosted there. would like to spend more time with Shelley and Sharon said that she saw Shelley slap Ryder that, as a general rule, it is always best for a one time, that Shelley told her that she spanks child's parents to have custody if possible. She Ryder, and that after returning from visits with concluded that Roger has made positive strides, Shelley, Ryder had behavioral problems. She conceded, however, that Ryder missed Shelley

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and that he and Shelley loved each other. She Xanax—filled within the previous six months. requested that the court allow her and Joseph to No evidence was presented indicating that keep Ryder during school weeks and split the Shelley was still taking high dosages of rest of Ryder's access equally between Roger prescription medications at the time of or and Shelley. recently before trial; in fact, a "prescription profile" exhibit submitted into evidence by the Joseph testified that he was concerned that Grandparents listed no prescriptions for Shelley Shelley could not provide a stable financial after 2005. Thus, while Shelley's drug use may environment for Ryder because she did not have have affected her fitness as a mother in the past, a paying job, did not have a car in her name, and there was no evidence presented of any current did not have her own place to live. Joseph drug use that would cause significant described that Roger had taken a more active impairment to Ryder's physical health or role in Ryder's life, had obtained a respectable emotional development in the present. job, had provided health insurance for Ryder, and had sought help from a therapist to deal with With regard to Shelley's living and Roger's emotional problems. financial conditions, the evidence shows that, at the time of trial, Shelley and Chris, who also has Todd Maslow (who submitted the original a history of drug abuse, were living together at social study report) testified that, despite his his parents' home. Chris, however, offered recommendation that Ryder uncontroverted testimony that he had not used illegal drugs in at least the four years preceding [297 S.W.3d 477] trial. Also, the evidence established that at the should remain with his Grandparents, he would Martinezes' five bedroom, two story house, not have concerns about Ryder's safety if he Ryder had his own room and that Shelley's work stayed with Shelley and did not believe that at the nightclub on weekends could allow her to Ryder living with Shelley would significantly be a stay-at-home mom for Ryder during impair Ryder's physical health or emotional weekdays.52 Shelley's residence at the development.49 He also testified that when he Martinezes' house seemed to be stable. Mrs. talked to Ryder when completing his initial Martinez testified that Shelley had become like a study, Ryder told him he wanted to live with daughter Shelley. [297 S.W.3d 478] The Grandparents also rely on evidence of to her and that if Chris's and her relationship Shelley's history of drug use and her living and became estranged, Shelley could continue to live financial conditions as proof that Ryder's at her house with Ryder. Although, as the physical and emotional health would be Grandparents point out, Shelley does not own or impaired by the appointment of Shelley and lease a vehicle, carry health insurance, or Roger as joint managing conservators. At the maintain paid employment, Mrs. Martinez time of trial, however, Shelley was not taking testified that Shelley has access to four vehicles any medications. While she admitted that she at her house and that she is "free to take them had previously been dependent on drugs anytime," Roger carries insurance for Ryder, and prescribed for her multiple sclerosis,50 and Shelley's lack of paid employment is "no evidence established that she had taken high evidence" of a potential for significant dosages of several types of prescription impairment to Ryder.53 medications that sometimes negatively affected her,51 she testified that at the time of trial, she Finally, the Grandparents cite evidence in was not taking any prescription medications, she the record related to certain conditions at the had no current symptoms from her multiple Martinezes' house that they believe could cause sclerosis, and she only had one prescription—for harm to Ryder. For example, they note that the

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Martinezes' backyard had a murky pool that was January 2004 and January 2005, and remand the filled with leaves and a trampoline that had case for a new trial on the issue of whether the broken glass underneath it. Mrs. Martinez, on appointment of Shelley and Roger as joint the other hand, testified that Ryder was never managing conservators would not be in the best allowed unattended outside, that an alarm interest of Ryder because such an appointment sounded if any door in the house was opened, would significantly impair his physical health or and that if the trial judge was concerned about emotional development.54 the safety of the pool, she would remedy those concerns. Sharon testified that she had learned LIVINGSTON, J., filed a dissenting and that the broken glass was from a patio table that concurring opinion. had blown into the pool during a windstorm; there was no evidence in the record as to how --------------- recently the windstorm had occurred. Sharon Notes: was also concerned at trial about an open flame used to heat the Martinezes' house, but she 1. Ryder was diagnosed with ADHD while in the admitted that Ryder had been taught about fire second grade. hazards and that he was unlikely to attempt to 2. Specifically, the decree granted Shelley possession play with the flame. of Ryder on three weekends per month, Thursday Viewing the entire record under the legal evenings, spring breaks, some of the time during Ryder's Christmas break, Mother's Day, some other and factual sufficiency standards of review holidays, and forty-two days during the summer, but articulated above, we conclude that, while there gave possession to the Grandparents at "all other is some evidence that placing Ryder under the times not specifically designated." joint managing conservatorship of Shelley and Roger might significantly impair the physical 3. See Tex.R. Civ. P. 296. health and emotional development of Ryder, the evidence is factually insufficient to support a 4. See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.- Dallas 2008, no pet.); Earvin v. Dep't of Family & finding of such impairment. Protective Servs., 229 S.W.3d 345, 350 (Tex.App.- Houston [1st Dist.] 2007, no pet.). III. Conclusion 5. Downer v. Aquamarine Operators, Inc., 701 We hold that the trial court abused its S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 discretion by appointing the Grandparents as U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). joint managing conservators because the evidence is insufficient to support the trial 6. Id. court's finding that the parental presumption was rebutted. There is no evidence that Shelley 7. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) voluntarily relinquished actual care, custody, (orig. proceeding). and control of Ryder for one year or more, and 8. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, the evidence is factually insufficient to prove 211 (Tex.2002). that the appointment of Ryder's parents as joint managing conservators would significantly 9. Tex. Fam.Code Ann. §§ 153.131, .373 (Vernon impair Ryder's physical health or emotional 2008). development. We, therefore, reverse the 10. Section 153.004 states, in part, that in provisions of the decree pertaining to joint determining conservatorship, a court shall consider managing conservatorship, render judgment that evidence of the intentional use of abusive physical a non-parent shall not be appointed joint force and that a court may not "appoint joint managing conservator based on Shelley's alleged managing conservators if credible evidence is voluntary relinquishment of Ryder's care, presented of a history or pattern of past or present custody, and control for the period between child neglect, or physical or sexual abuse by one

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parent directed against the other parent, a spouse, or a 22. See Tex. Fam.Code Ann. § 153.131(a) ("both child ... that results in the other parent becoming parents shall be appointed as joint managing pregnant with the child." Tex. Fam. Code Ann. § conservators of the child") (emphasis added), § 153.004(a)-(b) (Vernon 2008); see In re R.T.H., 175 153.131(b) ("It is a rebuttable presumption that the S.W.3d 519, 521 (Tex. App.-Fort Worth 2005, no appointment of the parents of a child as joint pet.). managing conservators is in the best interest of the child.") (emphasis added). 11. Tex. Fam.Code Ann. § 153.131. 23. See Tex. Fam.Code Ann. § 153.131(a) ("both 12. Id. § 153.373. parents shall be appointed as joint managing conservators of the child") (emphasis added), § 13. Id. §§ 153.131(a),(b), .373. 153.131(b) ("It is a rebuttable presumption that the appointment of the parents of a child as joint 14. Id. §§ 153.131(a),(b), .373; see In re N.J.G., 980 managing conservators is in the best interest of the S.W.2d 764, 766 n. 1 (Tex.App.-San Antonio 1998, child.") (emphasis added). The dissent contends that no pet.). the presumption does not apply to the grandparents because both parents were appointed as joint 15. Chavez v. Chavez, 148 S.W.3d 449, 459-60 managing conservators. But section 153.131 clearly (Tex.App.-El Paso 2004, no pet.); see Tex. Fam.Code requires that the presumption favoring the Ann. §§ 153.004, .131, .373. appointment of both parents as joint managing 16. 881 S.W.2d 297 (Tex. 1994). conservators be rebutted by any non-parent seeking a joint managing conservatorship appointment in lieu 17. Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § of or in addition to both parents. 1, sec. 14.01(a), 1993 Tex. Gen. Laws 2989, 2989, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 24. See Connors v. Connors, 796 S.W.2d 233, 239 20, § 2, 1995 Tex. Gen. Laws 282, 282; Act of May (Tex.App.Fort Worth 1990, writ denied). 28, 1989, 71st Leg., R.S., ch. 370, § 1, sec. 25. See Lal v. Harris Methodist Fort Worth, 230 14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461, S.W.3d 468, 473-74 (Tex.App.-Fort Worth 2007, no repealed by Act of April 6, 1995, 74th Leg., R.S., ch. pet.) (rejecting argument that statute that was 20, § 2, 1995 Tex. Gen. Laws 282, 282. substantively amended should be construed as if it 18. Brook, 881 S.W.2d at 300. had not been amended).

19. See Tex. Fam.Code Ann. § 153.131(b), Historical 26. Tex. Fam.Code Ann. § 153.131 (emphasis and Statutory Notes ("Acts 1995, 74th Leg., ch. 751 added). ... added subsec. (b)," which provides for "rebuttable 27. Id. presumption that the appointment of the parents of a child as joint managing conservators is in the best 28. Moreover, the two El Paso Court of Appeals interest of the child"). opinions on which the dissent relies actually support the conclusion that the parental presumption only 20. See Act of May 14, 1991, 72nd Leg., R.S., ch. applies to primary custody in the context of 161, § 2, 1991 Tex. Gen. Laws 771, 771, repealed by determining joint managing conservatorship between Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, a parent and non-parent. See Sotelo v. Gonzales, 170 1995 Tex. Gen. Laws 282, 282; see also Brook, 881 S.W.3d 783, 788 (Tex.App.El Paso 2005, no pet.); In S.W.2d at 298. re De La Pena, 999 S.W.2d 521, 534-35 (Tex.App.El 21. While we have found no legislative history Paso 1999, no pet.). beyond the changes made to the current statute after 29. The trial court also offered no explanation for section 14.01 was repealed that expressly indicates why he appointed Shelley and Roger joint managing that the legislature intended to overrule or nullify conservators of Ryder after concluding that the Brook when it repealed section 14.01, it is clear from presumption was rebutted, i.e., that it would not be in a comparison of the two statutes that the post-Brook Ryder's best interest to appoint his parents as joint changes to the statutes were substantive. managing conservators.

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30. Chavez, 148 S.W.3d at 459-60. 1997, writ denied) (suggesting that voluntary relinquishment ends when temporary restrictions are 31. Tex.R. Civ. P. 297, 299; Chavez, 148 S.W.3d at ordered). 459-60. 40. See Tex. Fam.Code Ann. § 153.131(a); Sotelo, 32. Joseph and Sharon have not contended on appeal 170 S.W.3d at 788. that the evidence supported a finding that Shelley exhibited a history of family violence, so we will not 41. Lewelling v. Lewelling, 796 S.W.2d 164, 167 analyze this ground for rebutting the parental (Tex. 1990); Whitworth v. Whitworth, 222 S.W.3d presumption. See Tex. Fam.Code Ann. § 153.131(b). 616, 623 (Tex.App.-Houston [1st Dist.] 2007, no pet.) (stating that the "link between the parent's 33. M.P.B., 257 S.W.3d at 811-12; In re M.C.F., 121 conduct and harm to the child may not be based on S.W.3d 891, 895, 899 (Tex.App.-Fort Worth 2003, evidence which merely raises a surmise or no pet.). speculation"); see Tex. Fam.Code Ann. § 105.005 (Vernon 2008) (stating that findings in family law 34. M.C.F., 121 S.W.3d at 895. cases must generally be proved by the preponderance standard). 35. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 42. Lewelling, 796 S.W.2d at 167. 1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); Robert W. Calvert, "No Evidence" and "Insufficient 43. Id. at 168. Evidence" Points of Error, 38 Tex. L. Rev. 361, 362- 63 (1960). 44. Id.

36. Cent. Ready Mix Concrete Co. v. Islas, 228 45. May v. May, 829 S.W.2d 373, 377 (Tex. App.- S.W.3d 649, 651 (Tex.2007); City of Keller v. Corpus Christi 1992, writ denied) (op. on reh'g); see Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005). S.W.H., 72 S.W.3d at 777-78 (holding that the mother's past severe drug addiction and past 37. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 incarcerations related to drug use did not create a (Tex. 1986) (op. on reh'g); Garza v. Alviar, 395 present likelihood of significant impairment to her S.W.2d 821, 823 (Tex. 1965); In re King's Estate, child). 150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). 46. At trial, Shelley testified that she visited Ryder's 38. According to Sharon's calendar, Shelley saw school two days a week and that she went to his Ryder only twenty times from June through school-related activities. December 2004. 47. Shelley has had six pregnancies. Among these, 39. Even if we were to conclude that some evidence she had a daughter in 1994 named Lexi whom she of relinquishment existed beginning in June 2004, lived with for only six months and shared access to at when Shelley moved out of the Grandparents' home, the time of trial, and she also had a baby with Chris she filed answers to Roger's petition and the after her miscarriage, who was six months old when Grandparent's petition in intervention in February the trial began. 2005 and, therefore, ended any period of voluntary relinquishment approximately seven months after 48. Sharon's testimony confirmed the threat. leaving the Grandparents' house to leave Ryder with his grandparents. See In re S.W.H., 72 S.W.3d 772, 49. Specifically, Maslow stated that the move to live 777 (Tex.App.Fort Worth 2002, no pet.). Moreover, with Shelley "could affect [Ryder's] emotional in May 2005, the trial court entered a temporary adjustment; but seriously impair, no." He did, order restricting Shelley's access to Ryder. In light of however, testify that he believed the Grandparents such an order, any relinquishment by Shelley that and Roger were providing Ryder with security in his occurred while the order was in effect was current placement, that Ryder should remain with involuntary. Id. (concluding that a temporary them, and that he retained some concerns about some restraining order entered against a parent ended the of Shelley's circumstances and her truthfulness on parent's period of voluntary relinquishment); see also some of the responses she gave to him in his initial In re M.W., 959 S.W.2d 661, 668 (Tex.App.-Tyler survey.

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50. Shelley had taken many prescription medications, majority departs from Texas Supreme Court including Suboxone, Seroquel, Hydrocodone, precedent and our own precedent in its holding. Ambien, Lunesta, Lamictal, and Xanax at various times before trial. These medications sometimes The Collective Appointment of the made her dizzy or drowsy with slurred speech. Grandparents and the Parents as Ryder's Sharon testified that in 2003, Shelley often left Joint Managing Conservators medication out in places that Ryder had access to, and that in 2005, during one of Shelley's scheduled Shelley's argument in her second issue that visits with Ryder, the medication caused Shelley to the trial court abused its discretion when it sleep for a prolonged period on Ryder's bedroom appointed the Grandparents as Ryder's joint floor. managing conservators along with the Parents in 51. A pharmacist called by Roger's attorney that same role presupposes that the Grandparents described the medications Shelley had taken and were required to overcome the statutory parental opined that the dosages were high, but admitted that presumption to gain the appointment. That she had limited knowledge of multiple sclerosis and supposition (and the majority's holding that the reasons why Shelley's doctors may have been follows the supposition) is erroneous. prescribing the types and amounts of medication she was taking. Sections 153.131 and 153.373 of the family code establish that to overcome the presumption 52. Shelley helped manage a nightclub that she, Chris, and Chris's parents jointly owned, although she that a parent must be appointed as a managing received room and board in lieu of salary. Chris's conservator of a child, a court must find that (1) mother watched Ryder when Shelley worked. appointment of the parent would significantly impair the child's physical health or emotional 53. See Lewelling, 796 S.W.2d at 167. development, (2) the parent has exhibited a history of family violence, or (3) the parent 54. Because we have reversed and remanded the voluntarily relinquished care, control, and issues related to conservatorship and possession, we possession of the child to a nonparent for a year need not address Roger's sole issue in which he contends that the trial court abused its discretion by or more. Tex. Fam.Code Ann. §§ 153.131, .373 rendering a custody order that, although naming him (Vernon 2008); see In re N.J.G., 980 S.W.2d a joint managing conservator of Ryder, did not 764, 766 n. 1 (Tex.App.-San Antonio 1998, no designate his periods of possession and access. See pet.) (citing sections 153.131 and 153.373 in a Tex.R.App. P. 47.1. discussion of the parental presumption). But these findings are not required when both --------------- parents are named managing conservators. [297 S.W.3d 479] Section 153.372 authorizes a trial court to appoint parents and nonparents together as joint TERRIE LIVINGSTON, Justice, dissenting managing conservators. Tex. Fam.Code Ann. § and concurring. 153.372(a) (Vernon 2008). And Texas Supreme The majority holds that the trial court could Court precedent holds that the mere appointment not appoint Joseph and Sharon (the of grandparents as joint managing conservators Grandparents) together with Shelley and Roger alongside parents in that same role does not (the Parents) as Ryder's joint managing require a trial court to apply the parental conservators without applying the statutory presumption to exclude the grandparents; rather, parental presumption and determining that the the trial court may make such an appointment if Parents voluntarily relinquished care, custody, or it deems the appointment to be in the best control of Ryder or that the Parents' appointment interest of the child. Brook v. Brook, 881 S.W.2d as managing conservators would significantly 297, 299-300 (Tex.1994). impair Ryder's physical health or emotional development. See Majority op. at 470-72. The

- 12 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

In Brook, the court reviewed the collective Brook) are named joint managing conservators, appointment of the mother and the mother's that possible modification would have no effect parents as joint managing conservators to the on Brook's relation to this case because here the exclusion of the father and unanimously trial court did name both of the Parents as joint reasoned that the statutory parental presumption managing conservators, and thus completely "contemplates a situation in which neither of the complied with subsection (b). Thus, for section parents are awarded" managing conservatorship. 153.131(b) to achieve the precedent-altering Id. at 298-99. The court explained that the result that the majority holds it does under the parental presumption applies "only to those facts of this case, it would need to go beyond situations in which a nonparent seeks custody in stating that "[i]t is a rebuttable presumption that lieu of a natural parent." Id. at 299 (emphasis the appointment of the parents of a child as joint added). Finally, the court noted that "[t]he managing conservators is in the best interest of purpose of the statute, to codify the preference the child" to say something similar to "it is a for giving custody to a parent, has been met in rebuttable presumption that the appointment of the present case. The fact that a nonparent shares parents of a child as joint managing conservators custody does not detract from the fact that one of to the exclusion of all other parties seeking the child's parents does have custody." Id. at custody is in the best interest of the child." It 300. We have expressly held the same. Connors does not do so.2 v. Connors, 796 S.W.2d 233, 239 (Tex.App.- Fort Worth 1990, writ denied) (holding that the [297 S.W.3d 481] presumption "does not preclude the appointment It is "fundamental to the very structure of [297 S.W.3d 480] our appellate system that [the Texas Supreme Court's] decisions be binding on the lower of a parent to serve jointly with a non-parent" courts." Dallas Area Rapid Transit v. and that it applies only if "appointment is to be Amalgamated Transit Union Local No. 1338, denied to both parents"). 273 S.W.3d 659, 666 (Tex. 2008), cert. denied, ___ U.S. ___, 129 S.Ct. 2767, 174 L.Ed.2d 284 While Brook cited a previous version of the (2009); see Lubbock County v. Trammel's family code, the language analyzed in the Lubbock Bail Bonds, 80 S.W.3d 580, 585 decision is almost exactly the same as the (Tex.2002) (explaining that it "is not the language that now appears in subsection (a) of function of a court of appeals to abrogate or section 153.131.1 Brook, 881 S.W.2d at 298-99. modify established precedent"). Under the The only addition to the presumption statute that established precedent of the supreme court in amounts to anything beyond rearranging words Brook and of our own court in Connors, the is subsection (b) of section 153.131, which states Grandparents did not have to overcome the that it is "a rebuttable presumption that the parental presumption for their appointment as appointment of the parents of a child as joint joint managing conservators, and I would hold managing conservators is in the best interest of that their appointment as such is in Ryder's best the child." interest under the factors listed in Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976). Thus, The majority solely relies on subsection (b) I would affirm the trial court's conservatorship as having precedent-overruling importance. See appointment, and I dissent to the portion of the Majority op. at 470-72. But while it is possible majority's opinion reversing the appointment. (although not supported by any specific authority or legislative history in the majority's Primary Possession opinion beyond the statutory amendment itself) that subsection (b) could have modified Brook to Although Brook's application supports the extent that the presumption applies unless affirming the Grandparents' appointment as both parents (rather than a single parent, like in managing conservators along with the Parents, it

- 13 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

does not extend to their award of Ryder's in order to reach the result in De La Pena." Id. primary possession, as challenged by Shelley. Section 153.134(b)(1) of the family code states I agree with and would adopt the El Paso that in rendering an order appointing joint Court's position, applying the same reasoning as managing conservators, a court shall designate expressed in Sotelo and De La Pena. In De La which conservator has the exclusive right to Pena, the child's aunt sought managing determine the primary residence of the child. conservatorship to the exclusion of both parents Tex. Fam.Code Ann. § 153.134(b)(1) (Vernon in that same role. De La Pena, 999 S.W.2d at 2008). 524-25. Because she sought complete exclusion of the parents, the El Paso Court properly In Sotelo v. Gonzales, the El Paso Court of applied the statutory presumption (as interpreted Appeals decided that in an original custody by Brook) that "the best interest of a child is determination, the parental presumption "applies served if a natural parent is appointed as a when a non-parent and parent are appointed joint managing conservator." Id. at 527. Then, in managing conservators of a child but the non- applying the presumption to the primary parent is given primary custody." 170 S.W.3d possession issue, the El Paso Court held and 783, 788 (Tex.App.-El Paso 2005, no pet.) explained that (citing In re De La Pena, 999 S.W.2d 521, 534- 35 (Tex.App.-El Paso 1999, no pet.)). The court as between a parent and reasoned that to "hold otherwise would permit nonparent, unless the court finds the court to apply the presumption in appointing that appointment of the parent the parent a joint managing conservator but would not be in the best interest nevertheless choose the primary residence of the of the child because it would child on the basis of a heads-up best interest test, significantly impair the child's with the court determining which of the parties physical health or emotional is the `better' choice." Id. This would, according development, the parent shall be to the El Paso Court, result in the "appointment appointed sole managing of a parent as a managing conservator in name conservator or the parent and only, a paper title which eviscerates the purpose nonparent shall be appointed of the statute." De La Pena, 999 S.W.2d at 535. joint managing conservators. If the court chooses the latter, the In contrast, the San Antonio Court of parent shall be awarded Appeals held in Gardner v. Gardner that the primary possession unless such parental presumption does not apply to the issue an order would not be in the of primary possession between parent and best interest of the child because nonparent joint managing conservators. 229 it would significantly impair the S.W.3d 747, 752 (Tex.App.-San Antonio 2007, child's physical health or no pet.). In Gardner, the parties agreed to joint emotional development.[3] managing conservatorship of the children at issue, and the only remaining custody issue was Id. at 534-35 (emphasis added). which joint managing conservator was going to be awarded the right to determine the primary Our precedent establishes that the basis of residence. Id. The court reasoned that because the "deeply embedded" statutory parental the "plain words of [section 153.131] do not presumption is to protect the "natural affection address or contemplate application of the usually flowing between parent and child." In re [parental] presumption to the issue of primary M.N.G., 113 S.W.3d 27, 35 (Tex.App.-Fort possession, [it] would have to rewrite the statute Worth 2003, no pet.). Also, a parent's rights to "the companionship, care, custody, and [297 S.W.3d 482] management" of his or her children are constitutional interests "far more precious than

- 14 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

any property right." Santosky v. Kramer, 455 2008). Another section of the code states that U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 "[i]t is the policy of this state to ... optimize the L.Ed.2d 599 (1982). Implicit in these rights is development of a close and continuing the right to decide where one's child is to reside. relationship between each parent and child." Id. § 153.251(b) (Vernon 2008). The majority says that applying the parental presumption to which joint managing I would hold that erasing the parental conservator has the right to determine a child's presumption in an original suit on custody when primary residence would require us to "legislate a court appoints multiple parties as managing from the bench."4 Majority op. at 472. But the conservators but gives primary possession to a family code supports the application of the nonparent would weaken these constitutional presumption even when nonparents are and statutory interests and would create an designated as joint managing conservators unintended result by placing the parent and without applying the presumption under nonparent on equal ground for the trial court's circumstances like those in Brook. As the El real custody determination. Thus, because I Paso Court explained, "Section 153.372(b) [of agree with the majority that the evidence in this the family code] provides that the procedural case is insufficient to support the trial court's and substantive standards regarding a court- finding that the Grandparents rebutted the ordered joint managing conservatorship parental presumption, I would reverse the provided by Subchapter C of the Family Code provisions of the trial court's order pertaining to apply to a nonparent joint managing conservator. the Grandparents' right to determine Ryder's The very first section of Subchapter C contains primary residence and remand this case for the parental presumption." De La Pena, 999 further proceedings related to those provisions. I S.W.2d at 534; see Tex. Fam.Code Ann. § would also sustain Roger's sole issue and reverse 153.372(b) (Vernon 2008). the portion of the order limiting Roger's access to and possession of Ryder because as all parties Other sections of the family code also have agreed, there is no evidence in the record support presuming that parents should supporting that limitation. [297 S.W.3d 483] Conclusion maintain the right to designate a child's primary For these reasons, I respectfully dissent to residence, which, as our supreme court has the portion of the majority's opinion and explained, is a crucial component of managing judgment reversing the trial court's appointment conservatorship. See Phillips v. Beaber, 995 of the Grandparents and Parents together as S.W.2d 655, 660-61 (Tex. 1999) (equating the Ryder's joint managing conservators, but I right of primary possession with "custody" and concur with the majority's remand of the case for adding that primary possession and establishing further proceedings. a child's residence are "core rights of managing conservatorship"); see also Troxel v. Granville, --------------- 530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000) (explaining that "the interest Notes: of parents in the care, custody, and control of 1. Subsection (a) of section 153.131 currently their children ... is perhaps the oldest of the provides, fundamental liberty interests"). For instance, the very first section of the conservatorship chapter [U]nless the court finds that of the family code relates that the state's public appointment of the parent or policy is to "assure that children will have parents would not be in the best frequent and continuing contact with parents." interest of the child because the Tex. Fam.Code Ann. § 153.001(a)(1) (Vernon appointment would significantly

- 15 - Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)

impair the child's physical health or parents shall be appointed as joint managing emotional development, a parent conservators of the child." shall be appointed sole managing conservator or both parents shall be 2. The majority states, "There is no language in appointed as joint managing section 153.131 that indicates that the presumption is conservators of the child. inapplicable to the appointment of non-parents as joint managing conservators when the trial court also Tex. Fam.Code Ann. § 153.131(a). At the time appoints one or both parents." Majority op. at 471. of the Brook decision, the former section of the But there was likewise no such language in the family code relating to the presumption stated, version of the statute analyzed in Brook. Brook, 881 S.W.2d at 298-99. The majority also argues that the A parent shall be appointed sole Brook and Connors opinions regarded "a former managing conservator or both statute that did not contain a parental presumption parents shall be appointed as joint requiring that both parents be appointed joint managing conservators of the child managing conservators unless rebutted." Majority op. unless: at 472. But again, that change to the former statute is irrelevant to this case because the trial court did 1) the court finds that appointment appoint both Parents as joint managing conservators. of the parent or parents would not be in the best interest of the child 3. This language signals the El Paso Court's opinion because the appointment would that where a court does not find significant significantly impair the child's impairment under the parental presumption, physical health or emotional appointment of parents alongside nonparents as joint development. managing conservators is still proper because in such a situation, the parents have not been excluded from Act of May 28, 1989, 71st Leg., R.S., ch. 370, § managing conservatorship. Id.; see Brook, 881 1, sec. 14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461, S.W.2d at 299-300. repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282; see Brook, 4. The majority uses the "legislate from the bench" 881 S.W.2d at 298. In essence, the legislature pejorative phrase in an attempt to show why it would amended the family code to switch the order of the not apply the parental presumption to the right to words existing in both provisions; it moved the words determine Ryder's primary residence, but it does not "the court finds that appointment of the parent or explain why that same phrase would not apply to its parents would not be in the best interest of the child own expansive interpretation of section 153.131 because the appointment would significantly impair when that section applies to the appointment of both the child's physical health or emotional development" parents as a child's managing conservators. from behind to in front of the words "[a] parent shall be appointed sole managing conservator or both ---------------

- 16 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

329 S.W.3d 186

David GRAY, Appellant, v. Ann Wood SHOOK, Appellee.

No. 13-09-00255-CV.

Court of Appeals of Texas, Corpus Christi-Edinburg.

Nov. 30, 2010. Rehearing Overruled Jan. 13, 2011.

[329 S.W.3d 187] stating, "The best interest of [G.W.] will be served by the appointment of [Lucy] as joint William A. Dudley, Corpus Christi, for managing conservator [of G.W.] with the Appellant. exclusive right to designate the primary residence of the child...." Gray also requested Jack W. Marr, Marr, Meier & Bradicich, that "appropriate orders be made for access to Victoria, for Appellee. the child and the allocation of the rights and Before Justices YAÑEZ, BENAVIDES, duties of the conservators." On January 23, and VELA. 2008, Ann Wood Shook, G.W.'s maternal grandmother, filed a petition in intervention OPINION stating that she "would show that it is in the best interest of [G.W.] that Intervenor and Opinion by Justice BENAVIDES. Respondent [Lucy] be appointed joint managing conservators of [G.W.]." Shook further Appellant, David Gray, appeals the trial requested that she "be granted the exclusive court's appointment of appellee, Ann Wood right to establish the primary legal residence of Shook, as sole managing conservator of his the child" and that Gray be appointed possessory daughter, G.W. By one issue, Gray contends that conservator of G.W. Gray then amended his the trial court abused its discretion because (1) petition requesting that he be appointed joint Shook did not offer sufficient evidence of harm managing conservator with the exclusive right to to overcome the parental presumption; (2) if the designate the primary residence of G.W. parental presumption was overcome, Shook did not establish harm by a preponderance of the [329 S.W.3d 188] evidence; and (3) Shook offered no evidence of any specific acts or omissions by Gray that On June 30, 2008, a bench trial was held at would significantly impair the physical health or which Shook, Gray, Lucy, and Cheryl Green emotional development of G.W. We reverse and testified. remand. Shook stated that G.W. has lived in her I. Background home in Victoria, Texas since she was born and that when Lucy moved out of Shook's home David Gray and Lucy Wood are the approximately two years earlier, G.W. continued biological parents of G.W., who was born on living with Shook and her husband. Shook July 9, 2003. On January 30, 2007, Gray filed a testified that she and her husband have been suit affecting the parent-child relationship "raising" G.W. for "about a year-and-a-half."

-1- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

According to Shook, she has filled the role of to Seattle, Washington. Shook said that when co-parent with Lucy, and since G.W. was born, G.W. was born, Lucy moved into Shook's home Shook and her husband have "taken part in all and that for a short time, Gray took an "active aspects of raising [G.W.] together" because role" and visited G.W. at least every other Lucy "didn't know how much part [Gray] would weekend; however, the visits soon became be in her life." Shook testified that G.W. spends "sporadic." more time with her than with Lucy and that presently, she and her husband are primarily Shook testified that G.W. has started pre- responsible for raising G.W. Shook school and that G.W. attends gymnastics, dance acknowledged, however, that Lucy was still class, and play groups with her friends. providing care for G.W. and asked that Lucy be According to Shook, Lucy usually spends the appointed joint managing conservator. night at Shook's house and does not take G.W. away for overnight visits because they do not Shook stated that it was in G.W.'s best want to "jerk [G.W.] back and forth." Shook interest for Gray to be appointed possessory stated that she does not intend to move away conservator and that it would significantly from Victoria. impair G.W.'s physical health if the trial court appointed Gray managing conservator. Shook Shook testified that Gray did not testified that she wanted to be appointed acknowledge G.W. as his child while Lucy was managing conservator with the right to pregnant, but after G.W. was born, a paternity determine the residence of the child. According test was performed. Shook stated that when to Shook, if she were not appointed managing Gray was transferred to New Jersey, he did not conservator, it would significantly impair G.W.'s visit G.W. "real often" and that during that time, physical health because G.W. bonded with Shook and Lucy; Shook explained that bonding means "creating a safe [i]f [G.W.] were to be taken place—a place in the relationship where a child away from her residence, the feels safe, unquestionably taken care of." Shook only home she's ever known, did not believe that G.W. bonded with Gray and moved across the country during the first year of her life. She stated that where she has no family, no after approximately two years in New Jersey, support system, I feel—and as Gray moved to Denver; during that time, he an educator and with a degree in visited counseling, I feel that it would be—and her grandmother, I feel [329 S.W.3d 189] that it would be harmful to her because she has a lot of G.W. two to three times per year. According to insecurities now. Shook, while Gray has lived in Seattle, he has visited G.W. three to four times per year and that On cross-examination, Shook stated that in the last year, Gray had seen G.W. "[a] little Gray "arrived" after G.W.'s birth and that he did more regularly." When asked, "And if you were not participate during the pregnancy and did not to define her world of comfort, who are the pay for the medical expenses related to G.W's people that are involved in her world of comfort birth. According to Shook, from the time of right now," Shook replied, "My husband, G.W.'s birth until the time of trial, Gray had not myself[,] ... her mother[,] and her [maternal] had contact with G.W. on a monthly basis. aunt and her [maternal] uncle." Shook claimed Shook stated that Gray has had approximately that Gray had not contacted G.W. by telephone three to four visits with G.W. per year in the last on a regular basis and that to her knowledge, five years. Shook testified that Gray lived in Gray had only called G.W. once since she was Houston when G.W. was born; he then moved to four years old. When asked what the impact on New Jersey, then to Denver, Colorado, and then G.W. would be if she were removed from

-2- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

Shook's home and moved to Seattle, Shook [c]ounselors other than myself, stated: child counselors that [G.W.] has visited with that [sic] has told It would be devastating at this me this and is willing to testify point in her life. Her world as a here today. It's not just my five-year-old revolves around opinion, it's ... Any adolescent her safety and her security. And child psychology book that you she already worries and read, when you take a child's obsesses over things because of world away from them, the only the insecurity of her dad in and world that they know, and put out of her life. The only thing them in another world has constant in her life since birth harmful effects.... [And G.W.] has been my husband and I and would not have family support her mother has been there as a [if she moved to Seattle].... presence. [Gray] has not one relative that lives in Seattle. [G.W.] in Shook stated that her "position is [Gray] Victoria has a wide family should see [G.W.] more often, that he needs to support system and that is the build a relationship and be a full part of her life, most important thing in her life. not just visit occasionally" and that it would be "devastating to [G.W.]" if Gray were allowed to The trial court asked Shook several questions transport G.W. to Seattle because she had "never regarding Lucy's parental involvement. In her been more than a night or two without [Lucy], answers, Shook acknowledged that Lucy does [Shook,] or [Shook's] husband." According to not visit G.W. every day, does not pay any child Shook, no relationship exists between G.W. and support to Shook, and that Shook still provides Gray; therefore, Gray's visitation should be financial support to Lucy. When asked why increased gradually "until [G.W.] feels safe and Shook had possession of G.W., Shook replied: comfortable with him at [the Shooks'] home in Victoria or other places." [329 S.W.3d 190]

On re-direct examination, Shook stated that Lucy suffers from depression, although Gray has been interested in visiting which she is being treated for with G.W., "[t]he desire for seeing her more and sees a doctor and is trying than he has been is sudden as of the last to get help. She maintains a job hearing." Shook believed that if G.W. were fulltime and she struggles to transported to Seattle, she could suffer physical provide a place where [G.W.] harm, such as "stomach [aches], throwing up, can come. She struggles to grinding her teeth." Shook testified that the trial provide a car. She's having a court had ordered Gray to visit G.W. three times hard time. And she wants to be before the end of the year 2007 because Gray a fulltime mother but she had only visited G.W. once that year and that feels—and we've always Gray had complied with the order. discussed [G.W.] openly between ourselves—and we feel Shook denied that she and Lucy "resisted" together that it's better not to allowing Gray any visitation time with G.W. and drag [G.W.] from one place to that they had "always encouraged [Gray] to be the other. Lucy visits her at our part of her life." When asked to substantiate her home and she may financially opinion that G.W. would suffer from physical have to move back into our and emotional harm if she were removed from home with [G.W.]. Shook's home, Shook stated that:

-3- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

Shook stated that she believes that G.W. is safer could occur if Gray maintained regular living with her rather than living with Lucy and communication. Green stated: that she and her husband have been the "only consistent thing" in G.W.'s life. You know, from what I understand, the only time Green, a licensed clinical social worker,1 [G.W.] interacts with [Gray] is testified that she had been counseling G.W. for when he's here. There's no two months prior to the trial due to G.W.'s phone calls, there's no letters, separation anxiety. Green stated that: there's no little pictures sent in the mail, none of those things [G.W.] has had several that would be appropriate instabilities in her life to date. communication with a four- She's been back and forth with year-old, which is frequent her biological mother and is when parents are geographically currently residing primarily with distanced, they make the effort her biological grandmother and to have regular weekly phone step grandfather. There's been contact or some kind of inconsistencies due to the interaction with a child. mother's difficulties, which have led to some anxieties in this According to Green, G.W. considers Shook child's life. She has some her "primary parent" and she feels "safe" in separation anxiety, she doesn't Shook's home environment. Green testified that like to be alone, she's very because of G.W.'s separation anxiety, a situation controlling, she's very needy, that causes more stress, such as allowing her to needs lots of attention. She leave her home, could cause long-term problems won't sleep alone in a room. [329 S.W.3d 191] According to Green, stability and consistency are very important to a child such as "[p]oor performance in school, poor experiencing anxiety. Green explained that a socialization, difficulty in relationships" and child G.W.'s age is not able to bond with a more serious problems such as depression and person who visits every three to four months and the risk of drug use. Green explained that that for bonding to occur, more frequent contact extended periods of visitation with Gray in is necessary. When asked whether it is Seattle could cause G.W. to "regress, she could detrimental to a relationship between a child and become increasingly more anxious and more a parent for there to be infrequent or large gaps clingy." Green stated, "I understand that when between visits, Green replied that it would not she's gone on visits in the past with the father affect the relationship in a positive manner and she's been throwing up out of anxiety, possibly, "as far as the two people bonding together, it's since it's been a recurring event." going to keep that from happening." She opined that for a child to bond to someone, that person Green testified that if G.W. was removed must be consistently in the child's life. Green from Shook's home, she would "freak out," cling stated that to achieve that level of bonding, the to Shook, cry, scream, and throw up. According person should have regular communication with to Green, if the visitation schedule "is too the child by mail, telephone, or "face-to-face." accelerated," there could be problems "such as Green testified that visits once every two months the continued vomiting during visits ... bed- are inadequate for bonding to occur and that she wetting ... anxiety.... Maybe even she would did not "feel" that G.W. had an adequate bond become more controlling, more bossy, which with Gray, meaning that G.W. "would sense" could cause problems with her peer interaction." Gray as a stranger. Green opined that bonding

-4- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

Gray testified that he works for Skansa, that they would be down in a USA Building as an engineer and his salary is few hours. $85,000 a year. According to Gray, in the past, there has been "some resistance" to his visiting According to Gray, the visitation that was with G.W. and that there was difficulty in scheduled to begin at 9:00 a.m. actually began at exercising his last visitation with G.W. Gray 1:30 p.m., and he did not make that time up by stated: returning G.W. later. Gray stated that his visitation with G.W. went "exceptionally well," The day prior to me making the they had a lot of fun together and that he and trip down here I called Lucy, G.W. have a strong healthy bond and her mother—G.W.'s mother, relationship. that is—and inquired where and when I could pick her up, Gray testified that he lives with his understanding that it was nine, girlfriend, Allison, in a house he recently but just to confirm things. And purchased and that there is a bedroom for G.W. [Lucy] informed me that her Gray started a college fund for G.W. and daughter was out of town and provides health insurance for G.W., which he didn't know exactly when she'd started doing "immediately following the first return or where she was at that month of [G.W.'s] life." Gray claimed that at the moment but she would call and time of G.W.'s birth, it was "very unclear who inquire into that. And I asked the father was" and that was the reason Lucy her to finally return my call and carried her own medical insurance during the let me know what time the next pregnancy and birth. morning I could pick her up and where that would be. Gray stated that he was requesting custody of G.W. because it had become increasingly A few hours later, seven o'clock difficult to be as involved in her life as he would my time, nine o'clock here, I like to be. Gray testified that he had not been was getting ready to board an aware that G.W. lived with Shook until she filed overnight plane flight down her petition for intervention; therefore, when he here and I called back—I've also became aware of the situation, Gray decided that called [Shook's] house at that he should seek custody of G.W. Gray believed time to see if I could find someone there that could [329 S.W.3d 192] answer that question. Phone that G.W.'s living conditions were temporary calls were not answered, and "evolved out of convenience almost in that messages were left and I never Lucy was not taking care of [G.W.] as much as heard back from them. needed...." He also believed that he could And the next morning on my provide for G.W. and nurture and love her as way down from Houston in a much as Shook has. Gray stated: car, after flying in there, I made Lucy's interest in [G.W.'s] another round of calls with no upbringing has not been as we answers or return messages. would hope as a parent, and I And then later in that morning I think that's even gone slightly got a call from [Shook], less over the years and just kind informing me that they were in of withered away. I think as a Austin or somewhere in that young mother she's been, you area and that they were thinking know, reluctant to give up parts about leaving relatively soon,

-5- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

of her life that, you know, are to relocate from Seattle. According to Gray, if enjoyed by single people and it's G.W. moved to Seattle to live with him, due to put [G.W.] in an uncomfortable the flexibility of his work schedule, he could on situation there. certain occasions work from home and would be able to transport G.W. to and from her school. On cross-examination, Gray stated that Lucy had not been willing to provide financial Gray stated that the reason he could not support and time to G.W. but that he has done visit with G.W. more than once every two so. Gray stated that he lived in New Jersey for months is due to her inability to leave Victoria. approximately one year and that he would be Gray thought that it would have been better if "hard pressed to recall the exact number" of G.W. had been allowed to travel by plane to visit times he visited G.W., but thought he saw her him in addition to his visits to Victoria. every two months on average. Gray claimed that According to Gray, for "close to three years," he at that time, it was difficult to contact G.W., and attempted to negotiate with Lucy a plan for Lucy made visitation difficult for him by only G.W. to visit him. Gray explained, "I was allowing short, supervised visits with G.W. Gray hoping that we could eventually work something stated that when he lived in Colorado, he visited out that was mutually agreeable. Eventually G.W. on average every two months. Gray communications have broken down to the point testified that he was unable to visit G.W. on a that phone calls are unreturned, unanswered, and monthly basis because his employer only they were unbending in their requests and allowed ten days of vacation per year and demands." Gray acknowledged that "[v]isitation therefore, "[t]here's not that many days in the was highly restrained, but as a mature, year vacationwise to do that." On cross responsible parent [he] always hope[d] and [his] examination by Shook's attorney, Gray testified goal that in order to visit G.W. in Victoria, he is required to take at least "three days of vacation [329 S.W.3d 193] wrapped around a weekend." Therefore, Gray stated, "Ten days of vacation means you do that was that [he and Lucy] could work out some three times a year, you've used your vacation for mutually agreeable terms and conditions of that year." Gray also explained that it was that." expensive to make more visits. When asked if he According to Gray, his bond with G.W. is had "telephone visits" with G.W., Gray replied, "very strong," but because of the recent "I have in the past had many phone "extraordinarily strained" relations, contact with conversations with her. In recent months phone G.W. has not been permitted. Gray testified that calls are unanswered, unreturned. Phone records when he visited with G.W., she did not could easily indicate the hundreds of phone calls demonstrate any behaviors indicating that she tabbed and made." No phone records were was suffering from separation anxiety. Gray admitted into the record. stated, "Regarding her getting sick, she's gotten Gray admitted that he decided not to look sick one time in my presence. During my last for employment in Texas although he believed visit I picked her up from dance and she was ill that he could have found a job there. When on the way home in the car and recovered within asked why he chose not to live in Texas if his the hour and was playing again." Gray testified primary consideration was G.W., Gray that he picked G.W. up at Lucy's residence "a responded, "I don't believe location is exclusive number of times" and also from Shook's of visiting my daughter. Those two things don't residence for visitation. Gray stated that it had have to contradict each other in any way." Gray been "less than a year" since he picked G.W. up explained that moving to Seattle would allow at Lucy's residence. him more visitation time with G.W. because he made more money and he would never be asked

-6- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

Gray claimed that he was unaware that Yes, I have stepped up to the plate in that I have G.W. resided with Shook and that his "family [in consistently been in her life. As soon as I had Victoria] didn't know." When asked, "How hard any indication she wasn't living with her do you think it would have been had you looked biological parent, I pressed for this, right? That's to figure out where the child was living," Gray why we're here today, is because I have been responded, "How hard would it have been had I trying to step up to the plate and seek more and looked? I looked as far as I could; that is, she more time with G.W. since the day she was clearly maintained two residences. That is, all of born, while they have pushed very hard back her toys were both at [Lucy's] house and she had against that. a lot of toys at [Shook's] house. As recently as yesterday, for example, [G.W.] stated I live with Gray claimed that immediately after G.W. [Shook]. Oh, I'm not supposed to say that." was born, he initiated some action, which he did not explain, in order to assert his parental rights. Shook's trial counsel asked Gray if he Shook's attorney stated, "You haven't done agreed with Green's testimony that it was not in anything to establish rights to possession and G.W.'s best "interest to be uprooted and moved access to medical records and to school records, to Seattle." Gray replied, "I don't sir, in that I you haven't done any of those things until you believe that she's in a damaging and destructive filed this lawsuit." Gray replied, "That's not true environment currently and that currently her in that, as stated, right after she was born we care is loving and nurturing but a little bit over sought all those things which you just discussed controlling and possessive in a way that may and...." When Shook's lead to some of these issues." During re-cross examination, Shook's counsel asked, "Would [329 S.W.3d 194] that be in [G.W.'s] best interest to remove her that distance from the people that have taken counsel asked Gray to produce the court orders care of her during the first five years of her life," establishing those rights, Gray said, "We could Gray replied: pull them up. There were court orders, there were attorneys involved the month after she was Taken care of her, I don't really born involving just what you're discussing, sir." accept how you use the phrase, Lucy's trial counsel then asked the trial court to but I believe it would be in her take judicial notice of the fact that the pending best interest. They've cared for action was the only suit affecting the parent- her and I greatly appreciate child relationship that had been initiated and that what they have done to provide it was not filed one month after G.W. was born. the temporary solution they Gray then stated, "That's correct, it never have. That as a more permanent reached—it never reached the court at that point, solution I see her living with we were negotiating between the attorneys and it one of her parents, and that was, like I said, a standard parental—I forget the would be myself if the mother is right term for it right now—but not taking care of her, which has acknowledgment of parent, that sort of thing that been the case. So, I believe that we went through at that time." it would be in my daughter's best interest to reside with me in Lucy testified that G.W. lives with Shook Seattle. and has lived at the Shook residence for approximately one year. Lucy stated that she and When asked if Gray believed he had "stepped up Shook decided to share the parental to the plate and assumed the responsibility a responsibilities because Lucy "needed help parent should," Gray responded, raising" G.W. According to Lucy, she was diagnosed with depression when she was in eighth grade, and since then, she has been taking

-7- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

medication for that disease. After G.W. was days out of that time, the other three days he born, Lucy moved in with Shook and lived there spent in Austin or Dallas with friends." Lucy two or three years. Lucy stated that she believes believed that Gray's infrequent visits have that it is in G.W.'s best interest to continue living "damaged" his relationship with G.W. with Shook and that she is available to participate in raising G.W. The trial court appointed Shook managing conservator with the right to determine G.W.'s Lucy denied that she ever prevented Gray residence and appointed Gray and Lucy from visiting with G.W. and claimed that she possessory conservators. The trial court ordered "encouraged" him to visit regularly and more that neither possessory conservator live in the often. Lucy stated that it would be better for same residence with G.W. if Gray had more contact with her. Lucy also denied that she ignored Gray's telephone [329 S.W.3d 195] calls. Lucy explained that the "supervised" visits occurred when she was breast feeding G.W., G.W. and Shook. The trial court entered findings which she did for "a little over a year." of fact and conclusions of law, which stated in Therefore, it was "necessary" for her to be pertinent part: present during those visitations. Lucy testified 4. The Court finds that at the that she did not want to prevent Gray from time of filing of the Petition in having visits with G.W. and that she believes it Intervention, Intervenor [Shook] is "very important" for G.W. to visit Gray. had actual care, control, and Lucy stated that G.W. was "around" two possession of the child made the when Gray moved to New Jersey and that she subject of this suit for more than was not aware of any requests from Gray for six months ending no more than G.W. to be flown to New Jersey for a visit. Lucy 90 days preceding the date of testified that she has concerns about allowing filing of the Petition in G.W. to fly to Seattle because she suffers from Intervention. separation anxiety and she would be scared due 5. The Court finds that it is in to her young age. Lucy agreed that she would the best interest of the child work with G.W. to help her overcome her made the subject of this suit that anxiety. However, Lucy did not believe that it [Shook] be appointed Sole would be in G.W.'s best interest for Gray to be Managing Conservator of the appointed sole managing conservator and that it child made the subject of this was in G.W.'s best interest to continue living suit. with Shook. 6. The Court finds that it is in On cross-examination, Lucy said that it was the best interest of the child not true that Gray had placed hundreds of made the subject of this suit that telephone calls to G.W. Rather, she testified that [Gray] be appointed possessory before the suit was filed, Gray called conservator of the child made approximately twice a month to talk to G.W. the subject of this suit. Lucy stated that Gray visited G.W. two or three times per year, usually during a holiday like 7. The Court finds that Christmas or Thanksgiving. When asked why appointment of [Gray] as joint Gray did not visit more often, Lucy replied, "I managing conservator of the guess numerous reasons, being the expense, the child made the subject of this travel expense. Other plans. For example, he had suit would not be in the best a four-or five-day trip down to Texas over New interest of the child made the Year's Eve once and was only in Victoria two subject of this suit because the

-8- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

appointment would significantly Lewelling v. Lewelling, 796 S.W.2d 164, 166 impair the child's physical (Tex.1990). Therefore, section 153.131 of the health or emotional family code requires that the parent be appointed development. sole managing conservator or both parents be appointed joint managing conservators unless Gray requested additional findings of fact the nonparent proves by a preponderance of the "on how appointment of a parent or the parents credible evidence that "appointment of the as sole or joint managing conservator in the parent or parents would instant case would significantly impair the child's physical health or emotional [329 S.W.3d 196] development, including, what facts, if any, in the record, support said findings." The trial court did not be in the best interest of the child because not make any additional findings of fact, and this the appointment would significantly impair the appeal ensued. child's physical health or emotional development...." Tex. Fam.Code Ann. § 153.131 II. Standard of Review and Applicable Law (Vernon 2008); In re De La Pena, 999 S.W.2d 521, 527 (Tex.App.-El Paso 1999, no pet.). The An appellate court reviews the family code's presumption in favor of parental determination of conservatorship under an abuse custody places a "heavy burden on a nonparent of discretion standard. Whitworth v. Whitworth, seeking custody." May v. May, 829 S.W.2d 373, 222 S.W.3d 616, 622-23 (Tex.App.-Houston 376 (Tex.App.-Corpus Christi 1992, writ [1st Dist.] 2007, no pet.) (op. on reh'g) (citing denied). To rebut the presumption, "the evidence Gillespie v. Gillespie, 644 S.W.2d 449, 451 must support a logical inference that some (Tex.1982)). "Under an abuse-of-discretion specific, identifiable behavior or conduct of the standard, legal and factual insufficiency are not parent will probably cause significant physical independent grounds of error, but rather are or emotional harm to the child." Id. at 377. Any relevant factors in assessing whether the trial "close call" must be resolved in favor of the court abused its discretion." Baltzer v. Medina, parent over the nonparent. Chavez v. Chavez, 240 S.W.3d 469, 475 (Tex.App.-Houston [14th 148 S.W.3d 449, 459 (Tex.App.-El Paso 2004, Dist.] 2007, no pet.); see also Morris v. Morris, no pet.). No. 13-05-00297-CV, 2007 WL 2128882, at *2- 3, 2007 Tex.App. LEXIS 5878, at *6-7 III. Analysis (Tex.App.-Corpus Christi July 26, 2007, no pet.) (mem. op.). The trial court abuses its discretion Shook relies heavily on Green's testimony if its decision is arbitrary or unreasonable. that G.W. had suffered from separation anxiety Whitworth, 222 S.W.3d at 623. A trial court may and that because she had not bonded with Gray, also abuse its discretion if it fails to analyze or it would not be in her best interest to move to apply the law correctly. In the Interest of Seattle. If the evidentiary burden on a nonparent C.A.M.M., 243 S.W.3d 211, 215 (Tex.App.- was any evidence of any harm to the child, we Houston [14th Dist.] 2007, pet. denied) (citing would be required to find that the trial court Walker v. Packer, 827 S.W.2d 833, 840 acted within its discretion in this case. However, (Tex.1992) (orig. proceeding)). The trial court as we discuss below, the law requires the does not abuse its discretion if there is some evidence to rise above mere speculation of harm, evidence of a substantive and probative and further requires the harm to be attributable character to support the decision. Whitworth, to a specific, identifiable act or omission of the 222 S.W.3d at 623. parent. The trial court abused its discretion, and therefore, we sustain Gray's sole issue, because: "The presumption that the best interest of a (1) Shook failed to offer any evidence of a child is served by awarding custody to a natural specific, identifiable act or omission by Gray parent is deeply embedded in Texas law." that would be likely to harm G.W; and (2) the

-9- Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

evidence of the general harm caused by children, but that holding was "uprooting" in this case is only speculative and based on the fact that the father therefore could not rebut the parental had been a drug user in the presumption. recent past, and the holding was only made after a careful and A. Specific, Identifiable Act or Omission deliberate finding of a specific, identifiable act of the parent that Gray contends that the trial court abused its would significantly impair the discretion because the record does not legally— child's physical health or or even factually—demonstrate specific acts or emotional development. See id. omissions by Gray that would significantly at 377-79. impair the physical health or emotional development of G.W. We agree. In Lewelling, the Texas Supreme Court emphasized the portion of the statute under In order for a nonparent to overcome the which a nonparent may obtain custody if "the presumption that it is in the child's best interest court finds that appointment of the parent or to be in the custody of a parent, there must be parents would not be in the best interest of the evidence of "specific, identifiable" conduct by child because the appointment would the parent that is likely to cause harm to the significantly impair the child's physical health child's physical health or emotional or emotional development." Lewelling, 796 development.2 In S.W.2d at 166 (emphasis in original). After [329 S.W.3d 197] emphasizing this specific language, the court instructed that: May v. May, this Court wrote that the family code The [statutory] language requiring a showing that requires evidence of specific appointment of the parent would actions or omissions of the significantly impair the child's parent that demonstrate an award of custody to the parent [329 S.W.3d 198] would result in significant physical or emotional physical or emotional harm to development creates a strong the child.... In other words, the presumption in favor of parental nonparent must usually present custody and imposes a heavy evidence affirmatively showing burden on a nonparent. It is no conduct of the parent which will longer adequate to offer have a detrimental effect upon evidence that the nonparent the child, such as physical would be a better custodian of abuse, severe neglect, the child.... [T]he nonparent abandonment, drug or alcoholic must affirmatively prove by a abuse or very immoral behavior preponderance of the evidence on the part of the parent. that appointment of the parent 829 S.W.2d 373, 376-77 as managing conservator would (Tex.App.-Corpus Christi 1992, significantly impair the child, writ denied) (citing Lewelling v. either physically or emotionally. Lewelling, 796 S.W.2d 164, 167 This statute thus requires the (Tex.1990)). In May, we nonparent to offer evidence of ultimately held that the father specific actions or omissions of could not retain custody of the the parent that demonstrate an

- 10 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

award of custody to the parent above a mere speculation of harm. The record would result in physical or indicates that vomiting had occurred on only one emotional harm to the child. or two occasions out of the dozens of times G.W. has met with her father, and on closer Id. (internal citations omitted) (emphasis added). review of the record, Green testified that the Absent evidence of some specific act or vomiting was "possibly" caused by anxiety. omission by Gray that would cause G.W. harm, Moreover, there is no evidence that all of the the parental presumption can not be overcome. other alleged dangers to G.W.'s emotional We find no such evidence in the record. development were more than a mere possibility. For example, on direct examination, when The evidence in this case shows that the asked, "Can you give the Court some example[s] only possible harm to the child is the of what some of those additional problems might "uprooting" itself—not any specific, identifiable be [?]," Green responded, " sometimes act or omission, conduct or behavior of Gray. depression develops, sometimes they're at risk Therefore, it was an abuse of discretion for the for drug use," and further responded, " trial court to name Shook, a nonparent, sole oftentimes we see long-term problems." managing conservator of G.W. (Emphasis added). These are the exact types of B. Speculative Harm speculative harms that we prohibited from consideration in May. See May, 829 S.W.2d at Furthermore, even if we look at general 377. Without consideration of this speculative harm, not attributable to Gray's specific acts or harm, there is no evidence whatsoever to rebut omissions, Shook failed to present any evidence the parental presumption. Therefore, again, we that could overcome the parental presumption hold that the trial court abused its discretion in because the evidence presented raises only appointing Shook, speculative harm. [329 S.W.3d 199] In May, this Court wrote that "[the] harm to the child ... may not be based on evidence which a nonparent, as G.W.'s sole managing raises a mere surmise or speculation of possible conservator. harm." May, 829 S.W.2d at 377 (citing Kindred IV. Conclusion v. Con/Chem., Inc., 650 S.W.2d 61, 63 (Tex.1983); Briones v. Levine's Dept. Store, Because we hold that the trial court abused Inc., 446 S.W.2d 7, 10 (Tex.1969)). its discretion by appointing Shook to be G.W.'s sole managing conservator, we sustain Gray's Shook essentially relies on one theory of sole issue. Having failed to meet her burden, harm in order to justify the trial court's judgment Shook may not maintain any legal custodial that Shook had overcome the parental rights over G.W. "In most circumstances, a presumption. That theory can be summarized as judgment is reversed and rendered when a legal follows: (1) Green testified that G.W. suffers sufficiency challenge is sustained." Chavez, 148 from "some" separation anxiety; (2) this anxiety S.W.3d at 461. However, we are permitted to has caused "recurring vomiting" in the past, remand a case such as this "when the interest of could effect her peer relationships in the future, justice so requires." Id. (citing Tex.R.App. P. and may lead to other long-term problems; and 43.3). In this case, the trial court held in Shook's (3) these harms can be prevented if G.W. favor, making it unnecessary for that court to remains with Shook because G.W. feels safe determine G.W.'s best interest as it related to the with Shook and G.W. has not bonded with Gray. custodial or visitation rights that should exist Evidence of sporadic, past vomiting and the between Gray and Lucy only. Because of this, possibility of negative effects on peer and because we have overturned the trial court's relationships is insufficient evidence to rise ruling designating Shook as sole managing

- 11 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

conservator, we find it to be in the interest of experiences anxiety. Green testified that justice not to simply render judgment in Gray's consistency is also an important factor in favor. Further, more than a year has passed since bonding with a child and that when there are the custodial hearing; circumstances may have infrequent visits or large gaps between the visits, changed during this time such that it would not bonding will not occur. Green opined that a be in G.W.'s best interest to appoint Gray as her child is unable to bond with a person who only sole managing conservator, and we have no visits the child three or four times per year. The ability to determine the present circumstances of evidence showed, although contradicted by any of the parties, nor do we have the luxury of Gray, that he had only visited G.W. three or four sitting as a fact-finder. For the forgoing reasons, times per year since he moved away from we remand this case to the trial court for Texas.4 Furthermore, according to Green, G.W. custodial hearings to determine the rights as viewed Gray as a stranger, and Gray has not between Gray and Lucy only. bonded with G.W. because he has not spent enough time with her. Green stated that in order Dissenting Opinion by Justice LINDA to bond with G.W., more frequent contact was REYNA YAÑEZ. necessary. Dissenting Opinion by Justice YAÑEZ. According to Green, after visiting Gray, G.W. has vomited due to her anxiety. Green I respectfully dissent to the majority's testified that G.W. would "freak out" if she was conclusion that the trial court abused its removed from Shook's home and that she would discretion in this case. A trial court does not vomit, scream, and cry. Due to G.W.'s abuse its discretion when there is some evidence separation anxiety, Green stated that the added of a substantive and probative character to stress of removing her from Shook's home could support its decision.1 In some cases, the parental cause numerous problems for G.W. presumption can be rebutted by other evidence establishing the statutorily required negative Shook testified that G.W. has lived in her effect on the child even when there is no home since she was born, that she has been evidence establishing any particular "raising" G.W. for approximately a year-and-a- blameworthy act of the parent.2 "Because safety, half, and that G.W. spends more time with security, and stability are critical to child Shook than with Lucy. According to Shook, it development, the danger of uprooting a child would significantly impair G.W.'s physical may in some instances rise to a level that health if Gray was appointed managing significantly impairs the child's emotional conservator because G.W. would be removed development." 3 from the "only home she's ever known." Shook testified that G.W. had never been away from Here, Green testified that G.W. suffers Shook, Shook's husband, or Lucy for more than from separation anxiety, a condition she defined "a night or two." Shook stated that G.W. has as a fear of being separated from either the bonded with her and that it would be parent or person of significance. Green testified "devastating" to G.W. if she were removed from that G.W. considers Shook her "primary parent" Shook's home. Shook testified that G.W. would and feels "safe" in Shook's home. The evidence suffer harmful effects if removed from her home showed that G.W. has lived with Shook since because she would not have any family support she was born and has never known another in Seattle. Shook stated that appointing Gray home. managing conservator and removing G.W. from Green stated that stability and consistency Shook's home would have harmful effects. are very important to a child who In this case, there was evidence presented [329 S.W.3d 200] that the danger of uprooting G.W. from Shook's home would significantly impair G.W.'s

- 12 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

physical health and emotional development.5 Texarkana Court relied on the Therefore, the trial court could have reasonably proposition that a nonparent may concluded from the evidence that appointing be awarded custody of a child Gray managing conservator would have the without a blameworthy act of the parent; the opinion seems to merely statutorily required negative effect on G.W. 6 state this proposition in dicta. See Because there is some evidence of a substantive id. and probative character to support the trial court's decision, I believe that the trial court did Second, in In re Rodriguez, the not abuse its discretion by concluding that facts are again distinguishable in a Gray's appointment as managing conservator meaningful way from the present would significantly impair G.W.'s physical case. 940 S.W.2d 265, 266-70 health or emotional (Tex.App.-San Antonio 1997, writ denied). In that case, the birth [329 S.W.3d 201] mother gave the child up for adoption and relinquished all development.7 Therefore, I would affirm the trial parental rights, and the father had court's judgment. met the child only twice in the child's life. Id. at 267-69. 1 There is no evidence that Green had obtained Moreover, there was evidence a medical degree, and she did not claim to be a presented that all interactions and psychologist or psychiatrist. visitations were initiated and facilitated by the child's paternal 2 The dissent cites three cases from our sister grandmother, not by the father courts to support the proposition that a nonparent himself indicating a lack of concern may be awarded custody even without a blameworthy for the child, especially in the act of the parent. Each of those cases is child's early life, which the distinguishable from the present case, and moreover, evidence does not support in this the precedent in those cases is not binding on this case. Id. at 269-70. Additionally, Court. the majority for the San Antonio Court wrote that it didn't believe First, in In re G.R.W., the that "[section] 153.131, Texas Texarkana Court was dealing with Family Code contemplates that the circumstances much different from environment which 'significantly those in this case. 191 S.W.3d 896, impairs the child's physical health 898-900 (Tex.App.-Texarkana or emotional development' must be 2006, no pet.). In that case, the the product of some act or omission father of the child had been on the part of the natural parent," indicted for sexual assault of the which we consider to be a blatant mother for the very sexual misstatement of the law. We concur encounter that led to the birth of the with Justice Carr's dissent insofar child, and the father was convicted as it applies to this case. In of the lesser offense of child response to the majority, Justice endangerment. Id. at 898. Carr wrote: Moreover, the court pointed to the fact that the father was a smoker [W]hile I agree with the majority and that the child had severe that our record reflects "that there respiratory problems. Id. at 900-01. is no evidence that any act or These facts establish specific, omission, behavior, or conduct by identifiable acts of the parent that [the father] will impair [the child]," would be likely to impair the I respectfully dissent because, physical health or emotional unlike the majority, I do not agree development of the child. Further, that this case is a case of first there is no indication that the impression nor distinguishable

- 13 - Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

from Lewelling v. Lewelling, 796 parent, the parental presumption can be rebutted by S.W.2d 164 (Tex.1990). I would other evidence establishing the statutorily required hold on this legal issue that negative effect on the child."); In re Rodriguez, 940 Lewelling is controlling; and, that S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, at the present time [and] under the writ denied) (concluding that nonparent had rebutted current state of Texas laws, the parental presumption solely by producing evidence Lewelling standard that non-parents that the effect on the child of being removed from the seeking custody here cannot benefit only home she had ever known would be from their bonding or attachment "devastating"). with the child by "offering it as 3 some evidence of significant Chavez v. Chavez, 148 S.W.3d 449, 458-59 impairment to [the child]." Id. at (Tex.App.-El Paso 2004, no pet.) (citing De La Pena, 168. Accordingly, because [the 999 S.W.2d at 529). nonparent's] significant impact 4 argument was rejected by our I note that Green testified that even visits with Supreme Court in Lewelling, we a child once every two months, as Gray claimed he are required to reject the same did, is inadequate for bonding to occur. argument here. 5 See In re G.R.W., 191 S.W.3d at 900; Chavez, Id. at 275 (Carr, J., dissenting). 148 S.W.3d at 458-59; In re Rodriguez, 940 S.W.2d at 273-75. Third, in Chavez v. Chavez, the mother who was seeking to 6 See Tex. Fam.Code Ann. § 153.131; In re reacquire custody was shown to be G.R.W., 191 S.W.3d at 900; Chavez, 148 S.W.3d at a drug user and there was evidence 458-59; De La Pena, 999 S.W.2d at 529 ("We also that she was physically abusive. agree that because safety, security, and stability are 148 S.W.3d 449, 453 (Tex.App.-El critical to child development, the danger of uprooting Paso 2004, no pet.). The El Paso a child may in some instances rise to a level that Court overturned the trial court's significantly impairs the child's emotional ruling against the mother on other development."); In re Rodriguez, 940 S.W.2d at 270- grounds and never actually reached 75; see also In the Interest of R.T.K., 324 S.W.3d the issue of whether these specific, 896, 905 (Tex.App.-Houston [14th Dist.] 2010, no identifiable acts or some other pet.) (mem. op.) (concluding that the record reason would prevent the mother sufficiently supported the trial court's conclusion that from maintaining custody of the the nonparent rebutted the presumption found in children. Id. at 459. If the dissent section 153.131(a) because based on the evidence agrees with the reasoning in presented, the trial court could have reasonably Chavez, it should at least recognize concluded that removal of the child from "the only the present case as a "close call," home he has known" would significantly impair his and settle any doubt in favor of the emotional development). parent, as the El Paso Court 7 required. See id. See Whitworth, 222 S.W.3d at 623; see also In the Interest of C.A.M.M., 243 S.W.3d at 214-15 ("But 1 Whitworth v. Whitworth, 222 S.W.3d 616, 623 the fact that a trial court may decide a matter within (Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on its discretionary authority in a different manner from reh'g). an appellate court in a similar circumstance does not 2 demonstrate an abuse of discretion.") (citing Downer In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.- v. Aquamarine Operators, Inc., 701 S.W.2d 238, Texarkana 2006, no pet.) ("In fact, even without 241-42 (Tex.1985)). evidence establishing any blameworthiness of the

- 14 - Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)

381 S.W.3d 540 56 Tex. Sup. Ct. J. 10 Ann Wood SHOOK, Petitioner, v. David GRAY, Respondent. No. 11–0155. Supreme Court of Texas. Oct. 5, 2012.

Summaries: PER CURIAM. Source: Justia G.W., David Gray and Lucy Wood's nine- G.W., David Gray and Lucy Wood's nine-year- year-old daughter, has lived with her maternal old daughter, had lived with her maternal grandmother, Ann Shook, for her entire life. grandmother, Ann Shook, for her entire life. The Although G.W.'s parents have been in and out of trial court appointed Shook as G.W.'s sole her life to varying degrees since she was born, managing conservator and named Gray and no one disputes that at the time of the custody Wood as G.W.'s possessory conservators. The hearing the grandmother's home was the only court of appeals reversed, holding that the trial home G.W. had ever known. We are asked to court abused its discretion in naming Shook, a decide whether the court of appeals erred by nonparent, as G.W.'s sole managing conservator remanding this case to the trial court for because Shook failed to present any evidence hearings to determine the custody and visitation that could overcome the presumption that a rights as between Gray and Wood only. We parent should be named as managing grant Shook's motion for rehearing of her conservator. The court then remanded the case petition for review and, pursuant to Rule 59.1 of to the trial court to determine the custody and the Rules of Appellate Procedure, hold that, by visitation rights as between Gray and Wood barring the trial court from considering Shook, only. The Supreme Court affirmed the court of the court of appeals unduly restricted the trial appeals' judgment remanding the case but court's ability to protect the child's best interest. reversed to the extent the judgment limited the trial court's consideration of the role Shook When G.W. was three-and-a-half years old, should play in G.W.'s life, whether as Gray filed an original suit affecting the parent- conservator or a person with defined access child relationship requesting that he and Wood rights. be appointed joint managing conservators and that Wood be given the primary right to establish G.W.'s residence.1 Shook intervened on the basis that she “has had actual care, control, and possession of [G.W.] for more than 6 [381 S.W.3d 541] months ending no more than 90 days preceding

[381 S.W.3d 542] Cynthia T. Sheppard, Attorney at Law, Cuero, Jack W. Marr, Marr, Meier & Bradicich LLP, the date of filing of [the] petition.” SeeTex. Victoria, for Petitioner. Fam.Code § 102.003(a)(9). She requested that she and Wood be appointed joint managing Audrey Mullert Vicknair, Law Office of Mullert conservators and that she be named the joint Vicknair, William A. Dudley, Law Office of managing conservator with the exclusive right to William A. Dudley, P.C., Corpus Christi, David designate G.W.'s primary residence. She also S. Kidder, Dallas, for Respondent. asked that Gray be appointed possessory

-1- Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)

conservator. Subsequently, Gray amended his the custodial hearing; circumstances may have petition to request that the trial court appoint changed during this time such that it would not him joint managing conservator with the be in G.W.'s best interest to appoint Gray as her exclusive right to establish G.W.'s residence. sole managing conservator, and we have no Gray did not specify who should be named the ability to determine the present circumstances of other joint managing conservator. any of the parties, nor do we have the luxury of sitting as a fact-finder. For the forgoing reasons, Shortly after G.W. was born, G.W. and her we remand this case to the trial court for mother moved into Shook's home in Victoria, custodial hearings to determine the rights as Texas. At the time of the custody hearing, when between Gray and [Wood] only. G.W. was almost five years old, G.W. still lived with Shook. Wood had moved out of Shook's 329 S.W.3d at 199. Shook contends that the home to live on her own two years earlier, and court of appeals should not have precluded the Gray had lived in Houston, New Jersey, trial court from considering her role in G.W.'s Colorado, and Seattle between G.W.'s birth and life on remand. We agree. the time of the custody hearing. The trial court appointed Shook as G.W.'s sole managing conservator and named Gray and Wood as G.W.'s possessory conservators. By foreclosing the trial court from considering Shook on remand, the trial court The court of appeals reversed, holding that may be unable to protect G.W.'s best interest. the trial court abused its discretion in naming Tex. Fam.Code § 153.002 (“The best interest of Shook, a nonparent, as G.W.'s sole managing the child shall always be the primary conservator because Shook failed to present any consideration of the court in determining the evidence that could overcome the presumption issues of conservatorship and possession of and that a parent should be named as managing access to the child.”). As the court of appeals conservator. 329 S.W.3d at 198–99;Tex. pointed out, it had “no ability to determine the Fam.Code § 153.131 (stating that a parent shall present circumstances of any of the parties, nor be appointed as a sole managing conservator or d[id it] have the luxury of sitting as a fact- both parents shall be appointed as joint finder.” Id. That statement illustrates the managing conservators “unless the court finds problem with remanding for custodial hearings that appointment of the parent or parents would between Gray and not be in the best interest of the child because the appointment would significantly impair the [381 S.W.3d 543] child's physical health or emotional Wood only. The trial court must be able to development”). Additionally, the court of consider the changed circumstances. G.W. is appeals remanded the case for the trial court to now nine years old and over four years have reconsider the conservatorship and access rights passed since the trial court issued its order. Even between Gray and Wood only and explained: assuming Shook previously failed to present [T]he trial court held in Shook's favor, evidence capable of overcoming the parental making it unnecessary for that court to presumption, it does not follow that she will determine G.W.'s best interest as it related to the necessarily be unable to overcome the parental custodial or visitation rights that should exist presumption under the present circumstances. between Gray and [Wood] only. Because of this, Moreover, Shook pled and established and because we have overturned the trial court's general standing to file a suit for conservatorship ruling designating Shook as sole managing and access, as someone who has had care, conservator, we find it to be in the interest of control, and possession of a child for the justice not to simply render judgment in Gray's designated time. Tex. Fam.Code § 102.003 favor. Further, more than a year has passed since

-2- Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)

(authorizing suit by “a person, other than a foster consideration of the role Shook should play in parent, who has had actual care, control, and G.W.'s life, whether as conservator or a person possession of the child for at least six months with defined access rights. Tex.R.App. P. 59.1. ending not more than 90 days preceding the date of the filing of the petition”). Shook's inability to overcome the parental presumption does not -------- deprive her of standing to be considered for conservatorship or access. If Shook fails to Notes: overcome the presumption that a parent should In his petition, Gray stated, “The best 1. be named managing conservator on remand, the interest of [G.W.] will be served by the trial court may still name Shook as a possessory appointment of Lucy Wood as joint managing conservator or grant her access if that would be conservator with the exclusive right to designate in G.W.'s best interest. the primary residence of the child, and [Gray] so Thus, we conclude that the court of appeals requests.” Gray further requested that erred in preventing the trial court from “appropriate orders be made for access to the considering Shook for conservatorship of or child and the allocation of the rights and duties access to G.W. Accordingly, without hearing of the conservators.” Although Gray does not oral argument, we affirm the court of appeals' explicitly state the type of conservatorship he judgment remanding the case, but reverse to the sought, we infer that he wished to be named a extent the judgment limits the trial court's joint managing conservator.

-3-