TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
NO. 03-26-00418-CV
J. L., Appellant
v.
Texas Department of Family and Protective Services, Appellee
FROM THE 146TH DISTRICT COURT OF BELL COUNTY, NO. 25DFAM353526, THE HONORABLE CHRISTOPHER L. CORNISH, JUDGE PRESIDING
MEMORANDUM OPINION
J.L. (Father) appeals from the trial court’s order in a suit affecting the parent-child relationship that declined to name him a conservator of Child, who was approximately 18 months old at the final hearing. Because sufficient evidence supports the trial court’s conclusion to overcome the statutory presumption that a parent shall be appointed a possessory conservator if not appointed managing conservator, see Tex. Fam. Code § 153.191, we will affirm.
BACKGROUND
Child was born in September 2024 to S.W. (Mother) and Father in Bell County.
The Department’s first involvement in Child’s life was in response to a domestic violence incident approximately three weeks after Child was born. Father allegedly hit Mother and burned her with a cigarette after Mother attempted to stop Father from picking up Child during an argument. Father
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pled no contest to and was convicted of the criminal offense of assault causing bodily injury to a family member, a Class A misdemeanor, and the Department concluded that there was reason to believe that both parents had engaged in neglectful supervision of Child. The Department offered services to Mother and Father, but neither engaged.
This case began in April 2025, when officers from the Killeen Police Department responded to another domestic-violence call involving Father and Mother. The Department received a report from responding officers that Father and Mother both appeared to be under the influence of methamphetamine and had been in a physical altercation. Mother relayed to the Department’s representative that Father “beat the crap out of her,” “threw her around the bathroom, chocked [sic] her, [and] slapped her numerous times,” and that Father “shoved her on the ground” and “tripped with the baby in his arms” while Mother tried to get Child from Father. Mother stated that Child “was screaming” though she did not believe Child was hurt. Father admitted that “it did get physical,” and both he and Mother “have tempers.” Mother acknowledged that she and Father were both under the influence of methamphetamine, but Father reported that he had not used methamphetamine in three years. Father also stated that he has “ADHD, bi-polar and PTSD” but was not taking any prescribed medications or seeing a therapist. Both parents were drug tested; Father tested positive for amphetamine, marijuana, and methamphetamine, and Mother tested positive for amphetamine, cocaine, and methamphetamine. Child’s drug test, taken from a hair sample about three weeks later, was also positive for methamphetamine. Based on concerns that Child’s physical health and safety was immediately endangered due to ongoing domestic violence and illegal drug use by his caregivers, the Department removed Child from the home. The Department also filed its original petition, in which it sought termination of Mother’s and Father’s parental rights, and created family-service plans for Mother and Father.
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Though the Department initially placed Child in a foster home, Child moved in with maternal grandmother (Grandmother) in Colorado in August and has remained there since then. Soon after, Mother also relocated to Colorado, where she lives with her grandparents, and continued to engage in services required by her family-service plan while remaining in regular contact with the Department. Mother tested negative for all substances on every drug test she took since July 2025 and missed five total scheduled tests due to work, weather, or transportation issues. Mother also got a job in Colorado and remained employed through the trial. Father also relocated to Colorado; however, the Department’s final report characterized his cooperation and communication throughout the case as “inconsistent” and noted that Father “has provided conflicting information regarding his participation in treatment, therapy, mental health care, drug testing, and employment.”
At the final hearing, the Department, Mother, Grandmother, and the guardian and attorneys ad litem requested that the court appoint Mother and Grandmother as Child’s joint managing conservators, with Grandmother having the exclusive right to determine Child’s residence, and that the court give Father no conservatorship designation. Father did not appear at the final hearing. His counsel represented that Father had “no opposition of the recommendation except that he would like some specific visitation order[.]” Admitted exhibits included the removal affidavit, drug-test results, the family-service plans, and the Department’s permanency report to the court before the final hearing.
Dena Crain, the Department’s conservatorship worker in this case since December, testified that the Department recommended that Father have no conservatorship designation “due to the substance abuse, lack of stable housing, and mental health concerns, and domestic violence concerns.” Crain also testified that she did not know if Father was employed. She noted that she
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was aware of Father attending “at least three” rehab facilities since this case began; for example, Father started an in-patient rehab program on December 4 but “discharged himself within five days.” Documentation from his last rehab facility included therapy notes that Crain testified referenced “concerns about his mental health, and the fact stating that he was suicidal and homicidal.” Crain also testified that Father had not paid child support, completed his psychiatric evaluation or domestic-violence class, or submitted to regular drug testing. Crain testified that the last time Father took a drug test was in June 2025, which was positive for marijuana. Crain also testified that the question of whether Father could have video or phone visits would be “at the discretion of the caregiver,” but “I would not recommend it” due to “a lot of safety concerns.” Specially, Crain explained that “the caregiver has stated that in the past [Father] has threatened to harm her family and look for her and kill her, so we do have concerns in regards of letting her location be known.”
Mother testified that her relationship with Father “was really rocky. He was very abusive to me. . . . It was a very bad relationship.” She emphasized, “I don’t want [Father] to know where my child is located” or for Child “to have any contact with him” for safety reasons. Before Mother would consent to Father having any contact with Child, she testified that she would need him to be “going to actual therapy” and “prove that he’s changing,” including by getting and staying sober. But she stated that Father has “never stayed clean long enough to where I could believe the drug test.”
Grandmother echoed those concerns, noting that she has “known [Father] for a very long time,” and there have “been lots of times that he got clean and swore he was staying clean and then he did not.” “My opinion is my grandson is very happy and healthy without him” and “does not need that situation [like] what he was in before he came to me.” She testified to her
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“significant trust issues” regarding whether Father “would ever actually change long-term and be able to be a good thing in his son’s life.” “I would need to see significant proof and long-term proof of that” change, even for a phone or video visit with Child because “I do not want him in and out of the baby’s life. . . . I would like to see consistency before he even . . . is able to video or talk to him.”
After the hearing, the trial court appointed Mother and Grandmother joint managing conservators of Child. It found, by clear and convincing evidence, that appointing Father as a managing or possessory conservator would not be in Child’s best interest because the appointment would significantly impair Child’s physical health or emotional development. Likewise, it found that giving Father possession of Child under the standard possession order would endanger the physical and emotional welfare of Child. Instead, the order provided that Father shall have visitation with Child at the discretion of Grandmother. And it found that the possession and access to Child provided by the order are the least restrictive limitations to protect Child’s physical and emotional welfare and are in Child’s best interest. Father timely perfected this appeal.
DISCUSSION
In his first issue, Father argues that the evidence was insufficient to overcome the statutory presumption of parental conservatorship and that he should have been appointed a possessory conservator. In his second issue, Father argues that, assuming that he should have been appointed a possessory conservator, the order improperly delegates the terms of his possession to Grandmother’s sole discretion.
In determining issues of conservatorship, the primary consideration is always the best interest of the child. Tex. Fam. Code § 153.002(a); see Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex.
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2002). We review conservatorship decisions under an abuse-of-discretion standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A trial court abuses its discretion when it rules arbitrarily, unreasonably, without regard for guiding rules or principles, or without supporting evidence. Transcor Astra Grp. S.A. v. Petrobras Am. Inc., 650 S.W.3d 462, 484 (Tex. 2022). Under an abuse-of-discretion standard, legal and factual insufficiency are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Kazmi v. Kazmi, 693 S.W.3d 556, 566 (Tex. App.—Austin 2023, pet. denied). We engage in a two-pronged inquiry, asking (1) whether the trial court had sufficient information on which to exercise its discretion, and (2) whether the trial court erred in its application of discretion. Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied); see also In re J.A.J., 243 S.W.3d at 616–17 (distinguishing proof required for termination decisions (clear and convincing) from that required for conservatorship decisions (preponderance of the evidence)). The fact finder is the sole judge of witnesses’ credibility and the weight to give to their testimony; we cannot substitute our judgment for that of the fact finder. Kazmi, 693 S.W.3d at 566.
Section 153.191 of the Family Code provides
The court shall appoint as a possessory conservator a parent who is not appointed as a sole or joint managing conservator unless it finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.
Tex. Fam. Code § 153.191. Texas courts are to look to the following non-exhaustive list of factors to determine the children’s best interests: (1) the desires of the children; (2) the emotional and physical needs of the children now and in the future; (3) the emotional and physical danger to the children now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the children; (6) the
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plans for the children by the individuals seeking custody; (7) the stability of the home; (8) the acts or omissions of the parent that may indicate that the existing parent-child relationship is not proper; and (9) any excuse for the acts or omissions of the parent. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
Father argues on appeal that the record does not contain sufficient evidence to overcome the statutory presumption that he should be appointed possessory conservator. 1 Father specifically complains about his deprivation of statutory rights unrelated to issues of possession and access that are afforded to conservators. See Tex. Fam. Code § 153.073(a). These rights include, among others, the right to receive information from any other conservator of the child concerning the health, education, and welfare of the child; to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the child; and to consult with a physician, dentist, or psychologist of the child. Id.; see In re I.L., 580 S.W.3d 227, 234 (Tex. App.—San Antonio 2019, pet. dism’d) (“The difference between possessory conservatorship with no access to a child and non-conservatorship are the parental rights in section 153.073 to receive information and confer with another parent about the child’s health, education, and welfare.”). Father maintains that while the evidence may support restrictions on his possession of or access to Child, it does not justify the complete denial of possessory conservator status, as less restrictive alternatives are available.
The trial court made the requisite findings in the final order to overcome the statutory presumption—that is, it found that appointing Father as possessory conservator is not in
1 At the trial court, Father did not challenge the Department’s recommendation that he not be appointed a conservator of Child; however, because he challenges the sufficiency of the evidence supporting the judgment, he can make this complaint for the first time on appeal. See Tex. R. App. P. 33.1(d).
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Child’s best interest and would endanger Child’s physical or emotional welfare. See Tex. Fam. Code § 153.191. We conclude that the trial court did not abuse its discretion in declining to name Father a possessory conservator because sufficient evidence in the record supports these findings. Specifically, evidence showed that Father was repeatedly physically violent towards Mother with Child present, including while holding Child. Testimony established that Father has previously threatened to “harm [Mother’s] family” and “kill her,” and documentation from the last rehab facility Father attended echoed the concerns that Father was “suicidal and homicidal.” The trial court also heard Mother’s testimony that Father was “very abusive to her” and that she did not want Father to know “where my child is located” or for Child “to have any contact with him” for safety reasons, as well as Crain’s testimony that the Department had “a lot of safety concerns” regarding Father having even a video or phone visit with Child. Father had not participated in any of the Department’s services aimed at addressing these concerns, including the domestic-violence class or psychiatric evaluation. Further, evidence showed that Father used illegal drugs, including methamphetamine, had done so while caring for Child, and had not completed a rehab program, despite attending “at least three” facilities since this case began. And evidence and testimony demonstrated that Father had untreated mental illness, unstable housing arrangements, and no reported employment.
Father specifically challenges his deprivation of parental rights listed in section 153.073, which are unrelated to possession of or access to Child. See id. § 153.073. But the trial court could have reasonably concluded that, based on the same evidence above, appointing Father possessory conservator with these rights is not in Child’s best interest and would endanger Child’s physical or emotional welfare. For example, the trial court could have found that Father’s pervasive drug use would interfere with his ability to “confer with the other parent to the extent
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possible before making a decision concerning the health, education, and welfare of the child” to the extent that providing Father with these rights would not be in Child’s best interest. See id. § 153.073(a)(2). Similarly, the trial court could have found that the testimony regarding Father’s violent behaviors—including Mother’s testimony that she does not want Father to know where Child is located for safety reasons and Crain’s testimony that Father had previously threatened Child’s caregiver, saying that he would “look for her and kill her”—provided a basis on which it could reasonably conclude that giving Father the right “of access to medical, dental, psychological, and educational records of the child” and “to attend school activities, including school lunches, performances, and field trips” would endanger Child’s physical or emotional welfare. See id. § 153.073(a)(3), (6). In sum, this evidence provided a sufficient basis for the trial court to exercise its discretion and overcome the statutory presumption in favor of appointing Father a possessory conservator, even as to the conservatorship rights that do not implicate possession of or access to Child. See id. § 153.073(a).
Many of the cases Father relies on in his appellate brief are inapposite because they involve the appeal of an order appointing a parent as a possessory conservator but restricting that possessory-conservator parent’s possession of or access to the child. See In re J.J.R.S., 627 S.W.3d 211, 221 (Tex. 2021) (upholding “as agreed” visitation order for parent named possessory conservator); In re Marriage of Patel, 643 S.W.3d 216, 225–26 (Tex. App.— Texarkana 2022, no pet.) (reversing conservatorship order for parent appointed possessory conservator that provided parent with no possession of or access to child “until further order of the Court,” without more); In re Marriage of Collier, 419 S.W.3d 390, 399–400 (Tex. App.—Amarillo 2011, no pet.) (reversing conservatorship order for parent appointed possessory conservator that ordered visitation to be “solely at the discretion” of other parent); see also R.M. v. Texas Dep’t of
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Fam. & Protective Servs., No. 03-24-00262-CV, 2024 WL 4527790, at *7 (Tex. App.—Austin Oct. 18, 2024, pet. denied) (mem. op.) (distinguishing cases in which parent was appointed conservator but given no access or possession from case in which Father was not given access or possession after jury specifically determined that appointing him as possessory conservator would not be in child’s best interest and would endanger her physical or emotional welfare). Here, however, the trial court did not appoint Father possessory conservator—and the order’s provision that Father “shall have visitation with the child at the discretion of [Grandmother]” does not “implicitly acknowledge[]” that Father should have been appointed as such, as he argues in his appellate brief. 2 See Lee v. A.S., No. 02-14-00135-CV, 2015 WL 7820584, at *12 (Tex. App.— Fort Worth Dec. 3, 2015, no pet.) (mem. op.) (citing Tex. Fam. Code § 153.193).
The case that Father cites in his favor involving the same posture—i.e., a parent appealing an order that declines to appoint him as a conservator—is distinguishable. See Brandon v. Rudisel, 586 S.W.3d 94, 97 (Tex. App.—Houston [14th Dist.] 2019, no pet.). In Brandon, the parties’ three children had primarily lived with their mother, a practicing attorney, for two years in central Texas until the mother’s escalating drug abuse led to the father’s concerns regarding the endangerment and neglect of the children. Id. at 97–98. The father, who lived in Houston, filed a modification suit to remove the mother as a joint managing conservator. Id. at 97. After a bench trial—at which the mother did not attend due to purported lack of notice and the evidence consisted only of the father’s testimony—the trial court removed the mother as a managing conservator, declined to appoint her possessory conservator, and expressly limited the mother’s contact with
2 The trial court did not terminate Father’s parental rights, so he retains the right to file a motion to modify the order should circumstances change. See Tex. Fam. Code § 156.101 (providing grounds for modifying order establishing conservatorship or possession and access).
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the children. Id. at 99, 103–04. While the Fourteenth Court of Appeals overruled the mother’s challenge regarding managing conservatorship, it sustained her challenge concerning possessory conservatorship, specifically finding that no evidence suggested circumstances that would warrant denying the mother the “information rights” unrelated to access and possession in section 153.073. Id. at 106–07 (citing Tex. Fam. Code § 153.073(a)(1), (2), (4), (5)).
Here, however, the evidence at trial included testimony by the Department, Mother, and Grandmother, as well as documentary exhibits. 3 This evidence reflected concerns regarding Father’s domestic violence and threats toward Mother and her family, as well as his untreated mental illness, including that he was recently characterized as “suicidal and homicidal.” And Father has not predominantly cared for Child for years, as the mother in Brandon did for her children. Thus, in this case, the trial court had evidence suggesting circumstances that would warrant denying Father the section 153.073 rights unrelated to possession and access and that supports the trial court’s finding that granting Father those rights would not be in Child’s best interest and would endanger Child’s physical or emotional welfare. Under the applicable standard of review in which we may reverse the trial court’s conservatorship determination only upon a finding of abuse of discretion, we cannot conclude that the trial court here abused its discretion by finding that appointing Father as a possessory conservator is not in Child’s best interest and would endanger Child’s physical or emotional welfare.
We overrule Father’s first issue on appeal and, given this disposition, do not reach his second issue.
3 Unlike the children who would have been old enough to testify at trial in Brandon v. Rudisel, this case was tried when Child was an 18-month-old infant. See 586 S.W.3d 94, 105 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
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CONCLUSION
Having concluded that the trial court did not abuse its discretion, we affirm the order.
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Rosa Lopez Theofanis, Justice Before Chief Justice Byrne, Justices Kelly and Theofanis Affirmed Filed: August 6, 2026