Opinion issued November 29, 2012.




                                      In The
                              Court of Appeals
                                     For The
                          First District of Texas
                            ————————————
                             NO. 01-10-00963-CV
                           ———————————
                          JESSICA BHAN, Appellant
                                        V.
    BRYAN JAMES DANET AND WILLIAM TODD KRANZ, Appellees



               On Appeal from the 313th Judicial District Court
                            Harris County, Texas
                     Trial Court Case No. 2007-60263



           OPINION DISSENTING FROM DENIAL OF EN BANC
                        RECONSIDERATION

      I respectfully dissent from the denial of en banc reconsideration in this case.

The panel finds the evidence legally insufficient to support the trial court’s order

granting sole managing conservatorship of a thriving six-year-old child to the

foster parents, appellees Bryan Danet and Todd Kranz. Danet and Kranz have
raised J.A.B. since Children’s Protective Services (“CPS”) took him from his drug-

abusing mother, appellant Jessica Bhan, at the age of seven months following an

episode of family violence. When he was removed from Bhan’s custody, J.A.B.

had a severe diaper rash and was “starving.” Bhan spent the weekend taking

cocaine with a stranger in a hotel room, and she then moved to Wisconsin and did

not attempt to contact J.A.B for more than six months, until after CPS initiated

termination proceedings. There is no evidence that her lifestyle has since changed.

Rather, the record shows that Bhan has a history of drug abuse, alcohol abuse,

arrests and convictions, promiscuity, indigence, and neglect and endangerment of

J.A.B. She has seen J.A.B. only sporadically in supervised situations since he was

seven months old. Although she has completed a few parenting courses, she has

produced no evidence that she completed her Family Services Plan, that she no

longer has problems with drug and alcohol abuse, that she can support herself, that

she is no longer promiscuous, that she has stable employment, that she has a stable

home herself or can provide one for J.A.B., or that she can and will otherwise

provide for J.A.B’s physical and emotional welfare. It is undisputed that J.A.B.’s

foster parents, Danet and Kranz, have provided a loving and stable home for J.A.B.

and that he is thriving in their care.

      Despite these facts, the panel reverses the trial court’s order on the jury

verdict that granted joint managing conservatorship of J.A.B. to Danet and Kranz

                                         2
and denied possession to Bhan, with access at Danet and Kranz’s discretion. The

panel then awards sole managing conservatorship to Bhan, who plans to remove

J.A.B. immediately from the state and take him to live with herself and her mother

in public housing in Wisconsin. Bhan’s mother, according to Bhan’s testimony, is

in ill health and without economic resources and therefore has not visited J.A.B.;

and she did not intervene or otherwise participate in the conservatorship

proceedings. Bhan testified that she herself had been working prior to traveling to

Houston for the trial, but she did not know whether she would still have a job when

she got back to Wisconsin. The circumstances into which J.A.B. is to be taken and

Bhan’s plans and capacity to provide for his present and future physical and

emotional welfare are otherwise entirely unknown to the appellate court.

       In my view, the panel incorrectly applies both the standard of proof and the

standard of evidentiary review in conservatorship cases. It misconstrues the scope

of relevant evidence both at trial and on appeal, and it erroneously ignores the

jury’s findings and the trial court’s mandatory entry of judgment on those findings

and substitutes itself for the finder of fact and trial judge. Nor does the case law it

relies upon support its rulings. The result is that this case conflicts with similar

cases from our sister appellate courts, the Texas Supreme Court, and the governing

statutes.




                                          3
      I am particularly troubled because I believe the panel’s judgment directly

contravenes the purpose and provisions of Family Code Chapter 153, governing

suits affecting conservatorship and possession of and access to a child, and other

controlling law, and it sets a very bad precedent for this Court in deciding such

cases. This is especially the case when, as here, a child has been removed from the

custody of a parent by CPS for abuse or neglect, and CPS has ultimately decided

not to move to terminate the parent’s rights to the child but, instead, to place the

child in a safe and nurturing environment until the parent’s circumstances are

substantially changed for the better or termination becomes clearly appropriate,

rather than to retain the child in its own custody with all the attendant uncertainties.

With respect to this particular case, I believe the panel’s judgment is contrary to

J.A.B.’s best interest and, if put into effect, will have the immediate and

foreseeable result of returning him to the sole managing custody of a parent whose

history and pattern of neglect of J.A.B. has not materially changed since he was

removed from her care at the age of seven months, and that is foreseeably certain

to significantly impair his emotional development or physical health.

      Texas Rule of Appellate Procedure 41.2 provides, “En banc consideration of

a case is not favored and should not be ordered unless necessary to secure or

maintain uniformity of the court’s decisions or unless extraordinary circumstances

require en banc consideration.” TEX. R. APP. P. 41.2(c). This case merits en banc

                                           4
review on both grounds. Therefore, I respectfully dissent from the denial of en

banc reconsideration.

      I would affirm the order of the trial court, entered on the jury verdict,

appointing Danet and Kranz as the sole managing conservators of J.A.B and

denying Bhan possession of J.A.B.1

                                   Background

      The panel opinion contains many of the facts necessary to decide the case.

The following facts are added to supplement, and, in some respects, correct its

statement of relevant facts.

      On March 31, 2006, when J.A.B. was seven months old, CPS removed him

from Bhan’s custody and placed him in the foster care of Danet and Kranz. CPS

sought termination of Bhan’s parental rights. Apparently CPS decided, however,

instead of terminating Bhan’s parental rights, to attempt to preserve those rights by

imposing a Family Service Plan, the successful completion of which would permit

her to regain conservatorship of J.A.B. The termination suit was scheduled to be

heard or dismissed on October 2, 2007. On that date, Danet and Kranz filed this

suit affecting the parent-child relationship (“SAPCR”), seeking appointment as

J.A.B.’s joint managing conservators until a hearing could be held on permanent

custody. Although there is evidence in the record that, since J.A.B.’s removal,


1
      See TEX. FAM. CODE ANN. § 153.005 (Vernon 2008).
                                         5
Bhan completed several parenting courses, there is no evidence in the record that

she fully complied with her Family Services Plan.

      The trial court entered agreed temporary orders on May 9, 2009, naming

Danet and Kranz nonparent joint managing conservators and Bhan a possessory

conservator with supervised visitation rights twice a month. At the time the case

was ordered to trial, over repeated motions for continuances and delays by Bhan’s

trial counsel, Danet and Kranz’s motion seeking to hold her in contempt for failure

to pay court-ordered child support was pending.

      The jury heard testimony at trial which established that Joseph Alaniz, the

person originally presumed to be J.A.B.’s father and with whom J.A.B. and Bhan

were living when CPS removed J.A.B., is not J.A.B.’s father; and he has never had

any further contact with J.A.B. In the year between the time J.A.B. was removed

from Bhan’s custody and the time CPS decided not to seek termination of Bhan’s

parental rights and Danet and Kranz filed this suit, seeking to be named managing

conservators of J.A.B., Bhan saw J.A.B. infrequently, and she missed scheduled

visitations and a court date, had another child by Alaniz, and had domestic

violence committed against her by Alaniz, posing the threat of danger to J.A.B.

should he be returned to her care at that time. The evidence further revealed that in

the years intervening since Danet and Kranz were awarded temporary custody of

J.A.B., Bhan has had an ongoing history of drug and alcohol abuse and

                                         6
promiscuity, she has neglected to keep scheduled visits with J.A.B., and she has

neglected him even when she kept scheduled visits. At trial, Bhan demonstrated

no plans to provide J.A.B. with a stable and nurturing home. Rather, she testified

that she intends to take him out of state to live in public housing in Wisconsin with

herself and her invalid mother, who took no part in these proceedings and whose

contact with J.A.B. at any time in his life, if any, is not reflected in the record.

Bhan is uncertain whether she will have a job when she gets back to Wisconsin

with J.A.B. Danet and Kranz both testified that they loved J.A.B. and treated him

as their own son and that J.A.B. was a happy, secure little boy who had bonded

with them and treated them as his parents. This testimony was uncontroverted.

      At trial, the jury was correctly instructed that “[t]he best interest of the child

shall always be the primary consideration in determining questions of

conservatorship,” and it was properly instructed in the non-exhaustive list of

factors to determine a child’s best interest, commonly known as the Holley factors,

namely:

      (1)    the desires of the child;
      (2)    the emotional and physical needs of the child now and in the
             future;
      (3)    the emotional and physical danger to the child now and in the
             future;
      (4)    the parental abilities of the individual seeking custody;



                                          7
      (5)    the programs available to assist the individual to promote the
             best interest of the child;
      (6)    the plans for the child by the individual or by the agency
             seeking custody;
      (7)    the stability of the home or proposed placement;
      (8)    the acts or omissions of the parent, or potential conservator,
             that may indicate that the existing relationship is not a proper
             one; and
      (9)    any excuse for the acts or omissions of the parent or potential
             conservator.

See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (listing factors often

used for determining best interest of child); see also In re Doe 2, 19 S.W.3d 278,

282 n.20 (Tex. 2000) (recognizing that intermediate appellate courts use Holley

factors to ascertain best interest of child in conservatorship cases).

      The jury was likewise correctly instructed on the nature of possessory and

managing conservatorship of parents and nonparents, the presumption in favor of

the biological parent retaining custody, and the evidence required to rebut the

presumption and to determine conservatorship. It was instructed, “The biological

parent shall be appointed sole managing conservator, in preference to a non-parent,

unless appointment of the biological parent would not be in the best interest of the

child because the appointment would significantly impair the child’s physical

health or emotional development.”         See TEX. FAM. CODE ANN. § 153.131(a)

(Vernon 2008). It was also instructed that the term “‘Significantly Impair’ means


                                           8
the non-parent must affirmatively prove by a preponderance of the evidence

through specific actions or omissions of the parent that demonstrate that an award

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

Finally, the jury was instructed that if it found that Danet and Kranz should be

appointed joint managing conservators, Bhan should be appointed a possessory

conservator unless it found by a preponderance of the evidence that her

appointment was not in the best interest of J.A.B. and would endanger his physical

or emotional welfare.

      The jury found that it was in the best interest of J.A.B. that Danet and Kranz

be appointed joint managing conservators. It further found, by a preponderance of

the evidence, that appointment of Bhan as possessory conservator was “not in the

best interest of the child and that possession or access by [Bhan] would endanger

the physical or emotional welfare of the child” and that, therefore, Bhan should not

be appointed possessory conservator of J.A.B.

      In its final order, the trial court recited the jury’s finding 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” and its finding that “appointment of JESSICA BHAN as a

possessory conservator would not be in the best interest of the child.” It appointed

Danet and Kranz joint managing conservators of J.A.B. and gave them discretion

                                          9
over “[a]ny possession and access to the child by JESSICA BHAN” until J.A.B.

turns eighteen years old.

      The panel reverses all of the determinations of the jury and the trial court,

and it appoints Bhan as sole managing conservator of J.A.B.

        Standards of Proof and Review in Conservatorship Proceedings

      1.   Legislative Intent in Conservatorship Proceedings:           Texas Family
      Code Section 153.002, Best Interest of the Child

      The public policy of this state with respect to conservatorship, possession,

and access is to “assure that children will have frequent and continuing contact

with parents who have shown the ability to act in the best interest of the child” and

to “provide a safe, stable, and nonviolent environment for the child.” TEX. FAM.

CODE ANN. § 153.001 (Vernon 2008). Therefore, the Legislature has mandated

that “[t]he best interest of the child shall always be the primary consideration of the

court in determining the issues of conservatorship and possession of and access to

the child.” Id. § 153.002 (Vernon 2008).

      2.     Standard of Review in Conservatorship Proceedings

      It is worth emphasizing that this is a conservatorship proceeding, not a

termination proceeding. “The termination of parental rights and the appointment

of a non-parent as sole managing conservator are two separate and distinct issues,

each requiring different elements to be proven, different standards of proof, and

different standards of review.” Mann v. Dep’t of Family & Protective Servs., No.
                                          10
01-08-01004-CV, 2009 WL 2961396, at *14 (Tex. App.—Houston [1st Dist.]

Sept. 17, 2009, no pet.) (mem. op.); cf. TEX. FAM. CODE ANN. § 153.131(a)

(Vernon 2008) (providing presumption that biological parent is to be named

managing conservator), § 161.001 (Vernon Supp. 2012) (providing grounds for

termination of parent-child relationship); see also In re J.A.J., 243 S.W.3d 611,

615–17 (Tex. 2007).

      The Texas Supreme Court set out the differences between the two types of

proceedings in In re J.A.J. “First, the elements necessary to terminate parental

rights may differ from the factors that must be taken into account when deciding

who should be appointed a child’s managing conservator.”          In re J.A.J., 243

S.W.3d at 615. Family Code section 161.001(1) requires a court to find one or

more of the nineteen criteria listed in the section and defines “with some precision”

specific parental conduct that may justify termination. Id. Section 153.131(a), by

contrast, imposes a more general standard for determining managing

conservatorship that “does not enumerate specific acts or omissions by the parent,

but instead requires the court to find that appointing a parent would not be in the

child’s best interest because it would ‘significantly impair the child’s physical

health or emotional well-being.’” Id. at 616 (quoting TEX. FAM. CODE ANN.

§ 153.131(a)).   Thus, the evidence may be insufficient for termination under

section 161.001(1) while “still support[ing] the determination that appointment of a

                                         11
parent as conservator would impair the child’s physical health or emotional

development for reasons unrelated to the section 161.001(1) criteria.” Id.

      These differing standards of proof affect the method of appellate review,

which is more stringent for termination cases than for conservatorship cases. Id.

Due process concerns arising from the permanency of termination require that a

termination decision be supported by “clear and convincing evidence.” Id. In

evaluating the factual sufficiency of the evidence to support termination, the

appellate court must consider “whether the evidence is such that a factfinder could

reasonably form a firm belief or conviction about the truth of the State’s

allegations,” and legal-sufficiency review is conducted under a “similarly

heightened” standard. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)); see

also In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002) (describing how clear and

convincing standard impacts legal-sufficiency review in termination cases).

      By contrast, “a finding that appointment of a parent as managing conservator

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

governed by a preponderance-of-the-evidence standard.” In re J.A.J., 243 S.W.3d

at 616. “A party is entitled to a jury trial on the issue of appointment of a

managing conservator . . . .” In re D.A., 307 S.W.3d 556, 561 (Tex. App.—Dallas

2010, no pet.) (citing TEX. FAM. CODE ANN. § 105.002). And the trial court may

not enter an order in contravention of the jury’s verdict. In re J.A.J., 243 S.W.3d at

                                         12
616 n.5 (citing TEX. FAM. CODE ANN. § 105.002(c)(1)(A)); In re D.A., 307 S.W.3d

at 561. The jury’s findings underlying a conservatorship decision are subject to

ordinary legal and factual sufficiency review on appeal, rather than the clear and

convincing standard applicable to termination proceedings.         In re J.A.J., 243

S.W.3d at 616 n.5; In re D.A., 307 S.W.3d at 561.

      Finally, conservatorship determinations are “subject to review only for abuse

of discretion, and may be reversed only if the decision is arbitrary and

unreasonable.” In re J.A.J., 243 S.W.3d at 616. “The trial court is given wide

latitude in determining the best interests of a minor child.” Gillespie v. Gillespie,

644 S.W.2d 449, 451 (Tex. 1982); In re M.M.M., 307 S.W.3d 846, 849 (Tex.

App.—Fort Worth 2010, no pet.). Thus, to determine whether a trial court abused

its discretion, the appellate court must decide whether the court acted without

reference to any guiding rules or principles, that is, whether its decision was

arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); In re

M.M.M., 307 S.W.3d at 849. “An abuse of discretion does not occur when the trial

court bases its decisions on conflicting evidence.” In re M.M.M., 307 S.W.3d at

849 (citing In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding)).

Nor does an abuse of discretion occur so long as there is some evidence of

substantive and probative character to support the trial court’s decision. Id. (citing

Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002)).

                                         13
      Moreover, the trial court retains jurisdiction to modify a conservatorship

order when it is in the child’s best interest and the parent’s circumstances have

changed materially and substantially. In re J.A.J., 243 S.W.3d at 617; see TEX.

FAM. CODE ANN. §§ 156.001 (Vernon 2008) (providing that court with continuing

exclusive jurisdiction may modify order providing for conservatorship, support,

possession of, or access to child), 156.101 (Vernon Supp. 2012) (providing

grounds for modifying order establishing conservatorship or possession and

access). And a parent has standing to sue to modify a conservatorship order. In re

J.A.J., 243 S.W.3d at 617; see TEX. FAM. CODE ANN. §§ 156.002 (Vernon Supp.

2012) (stating that person who has standing to sue under Chapter 102 may file suit

for modification), 102.003(a)(1) (Vernon Supp. 2012) (providing that parent has

standing to file original custody suit). This is not the case with termination, which

is permanent and irrevocable. In re J.A.J., 243 S.W.3d at 616.

      In conducting a legal sufficiency review in conservatorship cases, an

appellate court reviews all the evidence in a light favorable to the finding, crediting

favorable evidence if a reasonable fact-finder could do so and disregarding

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

Wilson, 168 S.W.3d 802, 827 (Tex. 2005). In reviewing a no-evidence point, the

appellate court must view evidence in the light that tends to support the finding of

the disputed fact, and it must disregard all evidence and inferences to contrary.

                                          14
Lenz v. Lenz, 79 S.W.3d 10, 13–14 (Tex. 2002); Lewelling v. Lewelling, 796

S.W.2d 164, 166 (Tex. 1990); In re D.A., 307 S.W.3d at 561. The appellate court

will sustain a legal-sufficiency or “no-evidence” challenge if the record shows

(1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar

the court from giving weight to the only evidence offered to prove a vital fact,

(3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the

evidence conclusively establishes the opposite of the vital fact. City of Keller, 168

S.W.3d at 810. Thus, the court will sustain a legal sufficiency challenge only

when the evidence is “so weak as to do no more than create a mere surmise or

suspicion.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex. 2006).

“‘[W]hen the evidence offered to prove a vital fact is so weak as to do no more

than create a mere surmise or suspicion of its existence, the evidence is no more

than a scintilla and, in legal effect, is no evidence.’” Ford Motor Co. v. Ridgway,

135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d

61, 63 (Tex. 1983)); In re D.A., 307 S.W.3d at 561.

      If the evidence allows only one inference, neither jurors nor the reviewing

court may disregard it. City of Keller, 168 S.W.3d at 822. However, if the

evidence would enable reasonable and fair-minded people to differ in their

conclusions, then the fact-finder must be allowed to do so. Id. A reviewing court

cannot substitute its judgment for that of the fact-finder, so long as the evidence

                                         15
falls within this zone of reasonable disagreement. Id. The trial court is in a better

position to decide custody cases because “it faced the parties and their witnesses,

observed their demeanor, and had the opportunity to evaluate the claims made by

each parent.” In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet.

denied).

      Thus, to determine legal sufficiency of the evidence in this conservatorship

case, we must determine whether more than a scintilla of evidence exists to support

the jury’s findings that appointment of Danet and Kranz as joint managing

conservators was in J.A.B.’s best interest and that appointment of Bhan as

possessory conservator was “not in the best interest of the child and that possession

or access by [Bhan] would endanger the physical or emotional welfare of the

child.” See Lewelling, 796 S.W.2d at 166. And we must view the evidence in the

light that tends to support the finding of the disputed fact and disregard all

evidence and inferences to the contrary. Lenz, 79 S.W.3d at 13–14.

      To determine whether the evidence is factually sufficient to support the trial

court’s order, we must consider, weigh, and examine all of the evidence that

supports or contradicts the fact-finder’s determination. See Plas-Tex, Inc. v. U.S.

Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989). We may set aside a verdict only if

the evidence supporting it is so contrary to the overwhelming weight of the




                                         16
evidence as to be clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d

175, 176 (Tex. 1986) (per curiam).

       When conducting a factual sufficiency review, we must not merely

substitute our judgment for that of the fact-finder. Golden Eagle Archery, Inc. v.

Jackson, 116 S.W.3d 757, 761 (Tex. 2003). The fact-finder is the sole judge of the

credibility of witnesses and the weight to be given to their testimony. Id. Thus, to

determine the factual sufficiency of the evidence to support the trial court’s

judgment, we must consider all the evidence. In this case, we may overturn the

judgment naming Danet and Kranz managing conservators and giving them the

right to determine Bhan’s access to J.A.B. on factual sufficiency grounds only if

the jury’s findings and the trial court’s judgment mandatorily entered on those

findings are so against the overwhelming weight of the evidence as to be

manifestly unjust. See Cain, 709 S.W.2d at 176. We may not overturn the trial

court’s judgment on no-evidence grounds if more than a scintilla of evidence

supports the jury’s and the trial court’s findings. See Lewelling, 796 S.W.2d at

166.

       3.    Standard of Proof in Conservatorship Proceedings Under Family
             Code Sections 153.131 and 153.004

       Family Code section 153.131 sets out the standard of proof for establishing

conservatorship of a child.



                                        17
      Section 153.131(a), pursuant to which the trial court entered the final order

that is the issue of this appeal, creates a presumption in favor of a parent seeking

custody of a child. It provides,

      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.

TEX. FAM. CODE ANN. § 153.131(a) (emphasis added). “[T]he nonparent can rebut

the parental presumption by showing that the appointment of the parent would

significantly impair the child’s health or development.” In re V.L.K., 24 S.W.3d

338, 341 (Tex. 2000). “For the court to award managing conservatorship to a non-

parent under section 153.131, the non-parent must prove by a preponderance of

credible evidence that appointing the parent as a managing conservator would

result in serious physical or emotional harm to the child.” Taylor v. Taylor, 254

S.W.3d 527, 536 (Tex. App.—Houston [1st Dist.] 2008, no pet.). The nonparent

must present evidence to support the “logical inference that some specific,

identifiable behavior or conduct of the parent will probably cause that harm.” Id.

This link between the parent’s conduct and harm to the child may not be based on

evidence that merely raises a surmise or speculation of possible harm. Id. The

nonparent must offer evidence of specific acts or omissions demonstrating that



                                        18
awarding custody to the parent would result in physical or emotional harm to the

child. Id.

      The parental presumption set out in Family Code section 153.131(a) is

expressly made subject to section 153.004 of the Code. See TEX. FAM. CODE ANN.

§ 153.131(a). Section 153.004(b), relevant to this case, provides:

      It is a rebuttable presumption that the appointment of a parent as the
      sole managing conservator of a child or as the conservator who has
      the exclusive right to determine the primary residence of a child is not
      in the best interest of the child if credible evidence is presented of a
      history or pattern of past or present child neglect, or physical or sexual
      abuse by that parent directed against the other parent, a spouse, or a
      child.

TEX. FAM. CODE ANN. § 153.004(b) (Vernon 2008).

      Under the plain language of sections 153.131(a) and 153.004(b), the parental

presumption is removed by a showing that the parent seeking to be appointed

managing conservator has a history or pattern of past or present child neglect or

physical abuse. See id. §§ 153.004(b), 153.131(a). But a nonparent’s overcoming

the parental presumption is not sufficient to prove the nonparent’s own entitlement

to be appointed managing conservator. The nonparent must still prove that he or

she should be appointed managing conservator by showing, by a preponderance of

the evidence, that his or her own appointment would be in the best interest of the

child and that appointment of the biological parent as managing conservator would

significantly impair the physical or emotional development of the child. See id.

                                         19
§ 153.131(a). Under section 153.004(b), it is a rebuttable presumption that the

parent’s pattern of child neglect or physical abuse would significantly impair the

physical health or emotional development of the child. The biological parent,

however, may establish that she should be appointed sole managing conservator by

rebutting the presumption that her history or pattern of behavior will significantly

impair the child’s emotional or physical development in the future.            See id.

§§ 153.004(b), 153.131(a). In addition, to obtain managing conservatorship, the

parent must show, by a preponderance of the evidence, that her appointment will

be the child’s best interest. See id. § 153.131(a). This is shown by evidence going

to the Holley factors. Holley, 544 S.W.2d at 371–72. Section 153.004(e) then

provides a final safeguard for the child, stating, “It is a rebuttable presumption that

it is not in the best interest of a child for a parent to have unsupervised visitation

with the child if credible evidence is presented of a history or pattern of past or

present child neglect or physical . . . abuse by that parent directed against the other

parent, a spouse, or a child.” TEX. FAM. CODE ANN. § 153.004(e).

      Texas case law supports the foregoing construction of sections 153.131 and

153.004. “In determining the issues of conservatorship and possession of and

access to the child, ‘[t]he best interest of the child shall always be the primary

consideration of the court.” In re Rodriguez, 940 S.W.2d 265, 271 (Tex. App.—

San Antonio 1997, writ denied) (quoting TEX. FAM. CODE ANN. § 153.002 (Vernon

                                          20
1996)). While Texas law presumes that a child’s best interest is served by naming

the child’s biological parent or parents as managing conservators, this presumption

is “rebuttable.”   Id.   Such a rebuttable presumption “shift[s] the burden of

producing evidence to the party against whom it operates.” Id. (quoting Gen.

Motors Corp. v. Saenz, 873 S.W.2d 353, 359 (Tex. 1993)). But, “[o]nce that

burden is discharged and evidence contradicting the presumption has been offered,

the presumption disappears and is not to be weighed or treated as evidence.’” Id.

(quoting Saenz, 873 S.W.2d at 359 (internal citations omitted)). “The evidence on

the issue is then evaluated as it would be in any other case. . . . The presumption

has no effect on the burden of persuasion.” Id. (quoting Saenz, 873 S.W.2d at 359

(citations omitted)).

      Here, the jury found that appointment of Bhan as managing conservator

would not be in J.A.B.’s best interest because it would significantly impair his

physical and emotional development. Therefore, section 153.131(a)’s parental

presumption disappeared, so long as there was more than a scintilla of evidence to

support the jury’s verdict and the trial court’s judgment, and so long as the

judgment actually entered was not so against the weight of the evidence as to be

manifestly unjust when the evidence is viewed in a light favorable to the jury’s

findings and the trial court’s judgment. See City of Keller, 168 S.W.3d at 827;

Cain, 709 S.W.2d at 176.

                                        21
      But the panel applied neither the correct standard of proof nor the correct

standard of review in this case.

           The Panel’s Construction of the Standards of Proof and Review

      The panel points out, correctly, that Family Code section 153.131(a) creates

a rebuttable presumption that appointment of a biological parent or both biological

parents is in the best interest of the child. Slip Op. at 12. The panel then states that

“[n]onparents seeking conservatorship carry a ‘heavy burden’ of overcoming this

presumption.”     Slip Op. at 13 (quoting Lewelling, 796 S.W.2d at 167).              It

continues, “A nonparent may rebut the presumption in favor of a biological parent

only if evidence is produced showing that appointment of the biological parent as

managing conservator would ‘significantly impair the child’s physical health or

emotional development.’”       Slip Op. at 13 (quoting TEX. FAM. CODE ANN.

§ 153.131(a), and citing In re R.T.K., 324 S.W.3d 896, 902–03 (Tex. App.—

Houston [14th Dist.] 2010, pet. denied)).        It acknowledges that the parental

presumption set out in section 153.131(a) may be overcome “if credible evidence

is presented of a history or pattern of past or present child neglect, or physical or

sexual abuse by that parent directed against the other parent, a spouse, or a child,”

as provided for in section 153.004 of the Code. Slip Op. at 13 (quoting TEX. FAM.

CODE ANN. § 153.004(b) (Vernon 2008)). And it concludes that such evidence

“creates a rebuttable presumption that the appointment of the parent as sole

                                          22
managing conservator is not in the best interest of the child.” Slip Op. at 13. But

there are problems with its statement of the burden of proof.

      The panel’s statement that the parental presumption is rebutted only by

evidence that appointment of the parent as managing conservator would

significantly impair the child’s physical health or emotional development

overstates the burden of proof of the nonparent seeking managing conservatorship

and is inconsistent with its statements (1) that the parental presumption is rebutted

by evidence of a past or present history or pattern of child neglect or physical

abuse by that parent and (2) that the production of such evidence creates a

rebuttable presumption that appointment of the parent as managing conservator

will significantly impair the child’s physical health or emotional development.

This inconsistency has great consequences in this case in that it justifies the panel’s

greatly raising the bar for removal of the parental presumption. The panel decides

that the presumption can be removed only by proof that appointment of the parent

would significantly impair the physical health or emotional development of the

child. It then determines that no evidence presented in this case is of that type and

that Danet and Kranz’s showing of Bhan’s pattern or practice of neglect of J.A.B.

is irrelevant to proof that Bhan’s appointment would significantly impair the

physical health or emotional development of J.A.B. It thus keeps the parental

presumption in place, and it never gets beyond it.

                                          23
      The panel credits no evidence presented by Danet and Kranz that their

appointment is in the best interest of J.A.B., treating this evidence as irrelevant to

overcoming the parental presumption. And it requires no proof by Bhan that her

appointment is in J.A.B.’s best interest, treating his best interest as simply

irrelevant also, since the parental presumption has never been overcome. The

jury’s findings are likewise treated as irrelevant.     Thus, the panel’s incorrect

application of the standard of proof required for appointment of a parent as

managing conservator of a child, as opposed to the appointment of nonparents,

combines with the panel’s incorrect application of the standard of review to pose

an insurmountable barrier to a nonparent’s appointment as managing conservator

of a child when a parent is also seeking custody. The jury’s findings are simply

discarded as irrelevant to this legal determination.

      Under a proper reading of the Family Code, construing the parental

presumption in section 153.131(a) as subject to section 153.004 requires that the

appellate court review the evidence supporting the jury’s custody determinations to

see whether there is more than a scintilla of evidence of a history or pattern of past

or present child neglect of the child whose custody is at issue, or another child, by

the parent seeking managing conservatorship.           See TEX. FAM. CODE ANN.

§§ 153.131(a), 153.004(b); City of Keller, 168 S.W.3d at 810. If there is such

evidence when the evidence is viewed in the light most favorable to the jury’s

                                          24
verdict, the panel should conclude that the parental presumption disappeared and a

presumption that the parent’s appointment as managing conservator was not in the

child’s best interest took its place. And, unless there is overwhelming evidence in

the record that the parent rebutted the presumption that her appointment was not in

the child’s best interest because of her history or pattern of child neglect and

overwhelming evidence under the Holley factors reflects that her appointment

would be in his best interest, the reviewing court should affirm the finding of the

jury and the judgment of the trial court that the parent’s appointment as managing

conservator would not be in the child’s best interest but, instead, would

significantly impair his physical health or emotional development.        See In re

Rodriguez, 940 S.W.2d at 271.

      Likewise, in considering whether a jury correctly determined that nonparents

should be appointed joint managing conservators, the reviewing court should

review the evidence in the light most favorable to the verdict to determine whether

the nonparents produced more than a scintilla of evidence to support the trial

court’s judgment that the parent’s appointment as managing conservator, or as

possessory conservator, of the child would significantly impair the physical health

or emotional development of the child and that the appointment of nonparents as

joint managing conservators would be in his best interest under the Holley factors.




                                        25
      To determine, in this case, whether Bhan’s appointment as J.A.B.’s

managing conservator would not be in J.A.B.’s best interest because it would

significantly impair his emotional or physical welfare, and that Danet’s and

Kranz’s appointment would be in his best interest, as the jury and the trial court

determined, the panel should have looked to whether there was more than a

scintilla of evidence that Bhan had a pattern or history of past or present neglect or

physical abuse of a child, including J.A.B., under the Holley factors. See Holley,

544 S.W.2d at 371–72. It should then have looked to see whether Danet and Kranz

had produced more than a scintilla of evidence demonstrating that their

appointment as managing conservators would be in J.A.B.’s best interest.

      In short, to comply with the standard of proof and standard of review in this

conservatorship proceeding, the panel should have considered all the evidence in

the light most favorable to the jury’s findings, and it should have determined

whether more than a scintilla of evidence existed to support the jury’s

determinations that Bhan’s appointment as managing conservator—or even as

possessory conservator—would not be in J.A.B.’s best interest because it would

significantly impair his emotional or physical development and whether the

appointment of Danet and Kranz would be in J.A.B.’s best interest under the

Holley factors. The panel, however, completely ignores the standard of appellate

review.

                                         26
      The panel makes three critical analytical errors that lead to a fourth and fatal

error. First, the panel treats the parental presumption in favor of Bhan as if it is not

removed by Danet and Kranz’s overwhelming evidence of Bhan’s history and

pattern of neglect of her parental responsibilities to J.A.B., which it chronicles in

detail in its opinion; thus, it keeps the parental presumption in place. Instead, it

accuses Danet and Kranz of not pleading neglect of J.A.B., and therefore it treats

Bhan’s history and pattern of neglect of J.A.B. as irrelevant to the removal of the

parental presumption. Second, because it never removes the parental presumption,

it never treats Danet and Kranz’s burden of production on the parental presumption

as discharged, and thus it never considers whether Danet and Kranz carried their

burden of persuasion that Bhan’s appointment would significantly impair J.A.B.’s

emotional or physical welfare, so that her appointment would not be in J.A.B.’s

best interest, or whether they should be appointed managing conservators because

they presented more than a scintilla of evidence that their appointment would be in

J.A.B.’s best interest. The panel never requires any proof that Bhan’s appointment

as sole managing conservator would be in J.A.B.’s best interest, and it never

credits, or even considers, any of the overwhelming evidence that the appointment

of Danet and Kranz as J.A.B.’s managing conservators is in J.A.B.’s best interest

and that appointment of Bhan—even as a possessory conservator of J.A.B.—is not

in J.A.B.’s best interest but would significantly impair his emotional or physical

                                          27
welfare. Third, the panel completely disregards as irrelevant the findings of the

jury, which was instructed to follow the Holley factors in determining

conservatorship. And it completely disregards the judgment of the trial court

mandatorily entered on those findings. Thus, the panel discards the abuse of

discretion standard of review and reassesses this case de novo on the basis of its

concern for parental rights in the abstract and its own unstated evidentiary criteria.

      The panel opinion acknowledges many of the facts in the record that the jury

relied upon in making its finding that Bhan should not be appointed either

managing conservator or possessory conservator of J.A.B. Slip Op. at 2–9, 15–18.

It acknowledges that J.A.B. was removed from Bhan’s custody by the police

following a domestic disturbance in circumstances that indicated he was being

neglected; that, instead of attempting to regain possession of J.A.B., Bhan spent the

following weekend using cocaine in a hotel room with a stranger; and that she

subsequently moved to Wisconsin and failed to contact J.A.B. for six months. See

Slip Op. at 3–4. It acknowledges her past arrests and convictions for marihuana

use and battery; her use of cocaine during her pregnancy immediately following

the removal of J.A.B. from her care; Alaniz’s family violence against her in the

hospital following delivery of her next child; her ongoing manifestations of drug

and alcohol abuse; her failure to take advantage of scheduled periods of

possession; and her inappropriate behavior when she did see J.A.B. See Slip Op. at

                                          28
4–9. However, the panel treats none of this as evidence of a pattern or history of

child neglect by Bhan or as evidence that Bhan’s pattern of behavior would

significantly impair J.A.B.’s physical health or emotional development if she were

appointed managing conservator. Instead, the panel accepts Bhan’s argument that

none of this evidence was recent enough or related enough to her recent behavior

to “implicate her ‘present parental fitness’ or support the jury’s finding that her

conservatorship would significantly impair the child’s physical health or emotional

development.” Slip Op. at 14–19. But past conduct may be probative of future

conduct, and evidence of specific instances of a parent’s pattern of conduct that

jeopardizes the physical health or emotional development of a child—such as drug

and alcohol abuse, failure to attend to the child’s physical and emotional needs,

failure to provide stability in the home or in the parent’s personal relationships, and

abandonment of the child’s interests to the parent’s interests—is probative

evidence both of a pattern or history of child neglect and of a pattern of conduct

that would significantly impair the physical health or emotional development of a

child, as shown by the cases discussed below.

      The panel also acknowledges that “Kranz and Danet’s evidence concerning

Bhan’s more recent conduct in Houston does reveal that Bhan brought different

men with her on her visits with the child, came from Wisconsin to visit the child

only twice a year after losing custody of him, showed up late to a visit, tried to

                                          29
board an airplane in Wisconsin while she was intoxicated, ‘snuck’ into the Houston

Children’s Museum, and, after travelling to New Orleans following a visit with the

child, did not call the child for three weeks.”      Slip Op. at 15–16.     And it

acknowledges that J.A.B., while in a swimming pool, went under the water three

times while Bhan was supposed to be supervising him. Slip Op. at 16. But while

it mentions this evidence, the panel ignores it, although this evidence of Bhan’s

specific acts and omissions too is probative both of Bhan’s past and present pattern

of neglect of her parental responsibilities and of behavior that will significantly

impair J.A.B.’s physical health or emotional development if he is returned to her

custody. It also ignores the fact that there is no evidence that this pattern of

behavior has been corrected.

      The panel simply concludes that “Kranz and Danet’s evidence of Bhan’s

more recent conduct does not itself constitute evidence that the appointment of

Bhan as the sole managing conservator of the child would significantly impair the

child’s physical health or emotional development.” Slip Op. at 17. Thus, it

concludes that “there is no evidence that Bhan’s conduct, albeit clearly

inappropriate, constitutes ‘specific action or omissions’ that demonstrate that

awarding her conservatorship would significantly impair the child’s physical health




                                        30
or emotional development.”2       Slip Op. at 18 (citing TEX. FAM. CODE ANN.

§ 153.131(a)).

      The panel also incorrectly implies that the trial court got the definition of

“significantly impair” in the charge wrong by requiring Danet and Kranz to prove

by a preponderance of the evidence “through specific actions or omissions of the

parent” that an award of custody to Bhan would result in physical or emotional

harm to J.A.B.. Slip Op. at 22. This is, however, the correct standard of proof.

The error is the panel’s refusal to count as evidence the specific acts and omissions

of Bhan introduced at trial as evidence relevant either to J.A.B.’s best interest or to

the issue whether Bhan’s appointment as his managing conservator would

significantly impair his physical health or emotional development.

      The panel distinguishes McPherson v. Hollyer, No. 01-09-00619-CV, 2011

WL 1632163, at *6 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (mem.

op.) (quoting In re K.R.P., 80 S.W.3d 669, 677 (Tex. App.—Houston [1st Dist.]

2002, pet. denied)), in which this Court recently held that a child’s development

may be significantly impaired when the child is removed from “the only person

who [has] consistently cared” for the child on the ground that the evidence here


2
      The panel thus seems to implicitly require expert testimony on child development
      in place of the Holley factors—which assume that the jury is in a position to
      determine as a matter of fact whether a parent’s pattern of behavior will
      significantly impair a child’s development or health. See Holley v. Adams, 544
      S.W.2d 367, 371–72 (Tex. 1976).
                                          31
does not show an act or omission by Bhan; it just shows delays in the judicial

proceedings. Slip Op. at 23. But, in fact, the evidence does show that Danet and

Kranz are the only persons who have consistently cared for J.A.B., while, by

contrast, Bhan has failed to care for him in any respect. She had elected to leave

him “starving” and with a severe diaper rash when he was removed from her care;

she neglected to make any immediate effort to get him back, instead spending the

weekend using cocaine with a stranger in a hotel room; she elected to abandon him

for the next six months. And she elected not to visit J.A.B. more frequently, to

limit her number of phone conversations with him, to take a three-week detour to

New Orleans when she did visit Houston, thus missing several phone

conversations with him, and to get on an airplane while intoxicated, resulting in a

delay in her trip, among other acts detailed in the panel’s opinion. Viewed in its

most favorable light, this evidence supports the jury’s determination that Bhan’s

demonstrated pattern of neglectful conduct would significantly impair at least

J.A.B.’s emotional development and likely his physical health as well.

      The panel also entirely fails to consider the legislative mandate that, in

determining issues of conservatorship and possession of and access to the child,

“[t]he best interest of the child shall always be the primary consideration of the

court.” TEX. FAM. CODE ANN. § 153.002; In re Rodriguez, 940 S.W.2d at 271.

Thus, it neither references nor applies the Holley factors, which the jury was

                                        32
correctly instructed to use as its guide in determining whether conservatorship and

possession of J.A.B. by either Danet and Kranz or Bhan was in J.A.B.’s best

interest.

       Indeed, Bhan could not have been appointed managing conservator under

the Holley factors. See Holley, 544 S.W.2d at 371–72. There is no evidence that

J.A.B. desires to live with Bhan, and there is uncontroverted evidence that he is

happy and thriving in his foster home. Danet and Kranz presented evidence that

J.A.B. does not enjoy having phone conversations with Bhan and that he “gets very

scared” and cries for a couple of nights after speaking with Bhan.            Bhan

demonstrated past indifference to J.A.B.’s physical and emotional needs, and she

has demonstrated no awareness of his current or future physical and emotional

needs: her decision to bring different men with her on her few personal visits to

J.A.B., her failure to check on J.A.B. over the weekend after police took custody of

him and her decision, instead, to spend the weekend using cocaine in a hotel room

with a stranger, the delay of her trip to see J.A.B. caused when she had to postpone

her flight because she had attempted to board an airplane while intoxicated, her

failure to supervise him when he was under her care, and her willingness to remove

him immediately from the only home he has ever known and take him to

Wisconsin to live with strangers to him under unknown and unstable conditions

strongly suggests that she has no concern for his physical and emotional needs.

                                        33
There is evidence that, at one visitation to celebrate J.A.B.’s birthday, Bhan “made

some minimal efforts to engage [J.A.B.] in conversation,” but then spent most of

the time talking to other adults and ignoring J.A.B.—evidence that is particularly

troubling given the limited number of visits she had with J.A.B.—and that J.A.B.

did not interact much with his younger half-brother and did not have the same

relationship with him as he had with his foster brothers. Bhan placed J.A.B. in

physical danger in the past by living with him in a home with an abusive man Bhan

believed to be his father, Alaniz, and she presented no evidence that the danger

would be reduced now or in the future, other than evidence that she was no longer

with Alaniz.

      Bhan has demonstrated no parental abilities, and while there was evidence

that Bhan participated in programs available to assist her in changing her life and

completing her Family Service Plan, so as to be in a position to regain custody of

J.A.B. and to promote his best interests, there is no evidence she completed her

plan or that she has abandoned drugs and alcohol or promiscuity. Bhan’s only

plans for J.A.B. are to take him immediately away from the only home he has ever

known to live out of state in public housing with herself and her invalid mother,

who has taken no part in the custody proceedings. There is no evidence that Bhan

has stable employment or is able to or will maintain a stable home for J.A.B. or

even for herself or that J.A.B. has ever seen or spoken with his grandmother.

                                        34
Bhan’s acts and omissions, other than her prosecution of the conservatorship

proceedings and her visits to J.A.B., all indicate that the parent-child relationship is

not a proper one.

      Furthermore, Bhan has presented no excuse for her acts or omissions as a

parent other than her lack of financial resources, which limited the trips she could

make to Houston to visit J.A.B. in person, but not her ability to contact him by

mail or telephone or to spend time with him during her visitation periods. See

Holley, 544 S.W.2d at 371–72. The Holley factors exist for a reason: to ensure

that the appointment of a managing conservator of a child will protect and further

the best interests of the child and will not significantly impair his emotional and

physical welfare and development. Here, the factors were simply disregarded by

the appellate panel.

      Finally, the panel points to nothing arbitrary or unreasonable in the jury’s

findings, nor does it view the evidence in a light favorable to the trial court’s

rulings. See In re J.A.J., 243 S.W.3d at 616 (holding that trial court has wide

discretion in determining conservatorship and trial court’s decision will not be

overturned unless it is arbitrary and unreasonable).        The panel, instead, does

exactly what the standard of review for legal sufficiency of the evidence in

conservatorship cases commands it not to do. It does not view the evidence in a

light favorable to the finding, crediting favorable evidence if a reasonable fact-

                                          35
finder could do so and disregarding contrary evidence unless a reasonable fact-

finder could not. See City of Keller, 168 S.W.3d at 827. It makes no attempt to

view the evidence in a light that tends to support the jury’s findings on the disputed

facts of whether Bhan’s appointment as managing conservator of J.A.B. would in

his best interest or would significantly impair J.A.B.’s physical or emotional

welfare or development, nor does it disregard all evidence and inferences to the

contrary. See Lenz, 79 S.W.3d at 13–14; In re D.A., 307 S.W.3d at 561. Instead, it

weighs the evidence for itself and determines that it disagrees with the jury as to

what constitutes evidence of Bhan’s acts and omissions, and it counts all of the

evidence presented to the jury as no evidence that any reasonable jury could credit

because it does not credit it itself on the basis of its own authority. See In re C.H.,

89 S.W.3d at 27 (opining, after stating correct standard of review in termination

cases, that “the court of appeals’ application of the standard failed to give due

deference to the jury’s fact-finding function”).

      Finding from its de novo review of the record under its own unstated criteria

that “Kranz and Danet did not present any evidence of Bhan’s specific acts or

omissions from which a fact finder could reasonably infer that the appointment of

Bhan . . . would significantly impair the child’s physical health or emotional

development,” the panel holds the evidence “legally insufficient to support the

jury’s finding that Kranz and Danet, as non-parents, should be appointed the

                                          36
child’s managing conservators.” Slip Op. at 23–24. Accordingly, it orders that

J.A.B. be removed from the managing conservatorship of Kranz and Danet and

placed immediately in the sole managing conservatorship of Bhan, acknowledging

that Bhan intends to remove him promptly from the state and take him to

Wisconsin, with no showing that such a move is in his best interest. See Slip Op.

at 9, 23. And it reaches its judgment despite overwhelming evidence that Bhan’s

appointment, even as possessory conservator, much less as managing conservator,

would not be in J.A.B.’s best interest and would significantly impair his physical

health or emotional development.

      In all of the foregoing ways, the panel defies and raises the standard of

review and standard of proof for appointment of a non-parent as managing

conservator of a child, despite the supreme court’s clear directive to the contrary in

the parallel situation in termination cases. In In re C.H., the Texas Supreme Court

stated:

      We emphasize that, as appellate courts apply the standard [of review
      in parental rights termination cases that] we announce today, they
      must maintain the respective constitutional roles of juries and
      appellate courts. An appellate court’s review must not be so rigorous
      that the only factfindings that could withstand review are those
      established beyond a reasonable doubt. See Santosky [v. Kramer],
      455 U.S. [745,] 767–69, 102 S. Ct. 1388[, 1402–03 (1982)], (holding
      that “beyond reasonable doubt” standard not required in termination
      cases). While parental rights are of constitutional magnitude, they are
      not absolute. Just as it is imperative for courts to recognize the
      constitutional underpinnings of the parent-child relationship, it is also

                                         37
      essential that emotional and physical interests of the child not be
      sacrificed merely to preserve that right.

89 S.W.3d at 26.

      The supreme court’s requirement that appellate courts should not require a

higher standard of review of the evidence than the law requires in parental rights

termination cases, like In re C.H., applies with even greater force in

conservatorship cases, like this one, where the parent’s rights are not terminated

and where it remains possible for the parent to regain possessory, or even

managing, conservatorship upon a showing, in a suit for modification of

conservatorship, that circumstances have changed and that a change in

conservatorship would be an improvement for the child. See In re J.A.J., 243

S.W.3d at 617; see also In re V.L.K., 24 S.W.3d at 343–44 (holding that parental

presumption only applies in original custody determination, not in modification

suit). Here, not only does the panel impose a far higher standard of proof and

standard of review of the evidence than required or permitted by law in a case in

which a non-parent seeks managing conservatorship of a child, it also raises the

standard of proof and review to a much higher level for the appointment of a non-

parent as managing conservator, which is supposed to require proof only by a

preponderance of the evidence, than for termination of parental rights, in which

due process rights are at stake and thus clear and convincing evidence of unfitness

is required.
                                        38
      The panel cites three cases, none of which actually supports it rulings: In re

S.W.H., 72 S.W.3d 772 (Tex. App.—Fort Worth 2002, no pet.), In re M.W., 959

S.W.2d 661 (Tex. App.—Tyler 1997, writ denied), and May v. May, 829 S.W.2d

373 (Tex. App.—Corpus Christi 1992, writ denied).

      In May, the Corpus Christi Court of Appeals recognized the standard of

proof necessary to overcome the parental presumption and appoint a non-parent

managing conservator of a child; namely, the nonparent must prove that

appointment of the parent as managing conservator would significantly impair the

child’s welfare, either physically or emotionally. 829 S.W.2d at 376. The court

stated that “the nonparent must usually present evidence affirmatively showing

conduct of the parent which will have a detrimental effect upon the child, such as

physical abuse, severe neglect, abandonment, drug or alcoholic abuse or very

immoral behavior on the part of the parent.” Id. at 376–77.

      After observing that “the material time concerning fitness for child custody

is the present,” the May court affirmed the judgment of the trial court awarding

custody of two minor children to their grandfather rather than to their father, the

appellant. Id. at 377, 378. The court noted that “evidence of past misconduct or

neglect may not of itself be sufficient to show present unfitness,” but it also stated

that “this principle is qualified by the permissible inference that an adult person’s

future conduct may well be measured by his recent deliberate past conduct as it

                                         39
may be related to the same or a similar situation.” Id. at 377. The court further

noted that the trial court could “logically infer” that the father’s serious violations

of the law, such as the use and sale of drugs, “would set an unacceptable standard

for the children to follow and significantly impair their emotional development.”

Id. at 377–78.

      The court observed that, although the father’s “last proven violation” of the

law was his use and sale of drugs out of his home two years earlier, this was some

evidence that the father’s appointment as managing conservator would not be in

the children’s best interest “because it would significantly impair their emotional

development.” Id. at 378. It then found that the evidence was factually sufficient

to support the trial court’s judgment in that, rather than contradicting his prior

drug-related conduct, the father admitted his past use of marihuana, and “[a]side

from his testimony that he had been ‘clean and straight for the last two years,’

there was no evidence that [he] had rehabilitated or that future drug use [was]

unlikely.”   Id.   Thus, the trial court’s determination that his appointment as

managing conservator would significantly impair his children’s emotional

development was supported by sufficient evidence of his drug-related conduct and

was “not manifestly unjust or clearly wrong.” Id.

      Here, although the panel noted the evidence presented by Danet and Kranz

that affirmatively showed conduct of Bhan which predictably would have a

                                          40
detrimental effect upon J.A.B., “such as physical abuse, severe neglect,

abandonment, drug or alcoholic abuse or very immoral behavior on the part of the

parent,” it disagrees with the May court that any of this is relevant evidence. See

id. at 376–77. And, although there was no evidence that Bhan had completed any

drug rehabilitation program, that she was sober, that she was able to support

herself, that she had ceased her immoral and illegal behavior, that she had

developed any parenting skills, or that she had any plans for J.A.B. or would be

able to support him, it concluded that there was no evidence that Bhan’s

appointment would significantly impair J.A.B.’s physical or emotional welfare.

This is the opposite of the conclusion reached by the May court on the basis of

much less evidence of a pattern or history of child neglect and much less evidence

that appointing the parent as managing conservator would significantly impair the

physical health or emotional development of the child. See id. at 377–78. Thus,

were this Court to follow the same principles of law the May court did, it would

necessarily conclude that appointment of Bhan as managing conservator would

significantly impair the physical or emotional development of J.A.B., and it would

affirm the judgment of the trial court. It, however, does the opposite, citing May as

authority for its ruling.

       Likewise, In re M.W., relied upon by the panel, stands in contrast to this

case. In In re M.W., the Tyler Court of Appeals reversed the award of custody of a

                                         41
child to a grandmother who intervened in a suit to determine custody between the

child’s unmarried mother and father—the grandmother’s son—after the trial court

received a negative report from the court-appointed psychologist about the father.

959 S.W.2d at 663.       The mother had originally been named sole managing

conservator, but she had entered an agreement with the father whereby he would

temporarily be sole managing conservator while she attended college for two years

and the agreement would not be construed as abandonment of the child by the

mother. Id. During this time, the mother maintained insurance for the child,

regularly visited her and spoke with her on the telephone, and picked her up during

holidays and on weekends. Id. at 667. There were no problems during the period

of temporary visitation. Id. After she received her degree, the mother notified the

grandmother that she would be taking permanent possession of the child. Id.

Although there had been family violence between the mother and father before the

birth of the child over five years earlier, it was remote, and violence never took

place in front of the child. Id.

      Citing the same standard of proof as the May court, the appellate court held

that the grandmother had failed to show a link between either parent’s harmful

conduct toward each other and harm to the child and that there was no evidence the

parents had voluntarily relinquished the child to the grandmother. Id. at 668. It

reversed the trial court’s order and remanded the case to the trial court for a

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determination of managing conservatorship as between the mother and the father.

Id. There is no relationship between any of the circumstances present in In re

M.W. and those in this case.

      Finally, both the panel and Bhan rely most heavily on In re S.W.H., a case

which, likewise, is, in critical respects, the opposite of this case. In that case, there

was evidence that the mother used alcohol and marihuana while she was pregnant

with the child and subsequently tested positive for drugs during a routine urine

analysis performed by her probation officer. In re S.W.H., 72 S.W.3d at 774–75.

Her probation was revoked, and she was sentenced to a Substance Abuse Felony

Punishment Treatment Facility (“SAFP”). Id. at 774. She voluntarily surrendered

possession of the child to the appellees, her good friends, while she was

incarcerated in the SAFP and, subsequently, in a half-way house. Id. While she

was incarcerated, and before the period for establishing voluntary relinquishment

had run, the appellees filed for managing conservatorship on the ground that the

mother had voluntarily abandoned the child, and they obtained an order appointing

them temporary managing conservators and a temporary restraining order

precluding the mother from contacting the child. Id. at 774–75.

      There was uncontroverted evidence that, in the four years following the day

she was placed in the SAFP for treatment, the mother had remained clean and

sober. Id. at 778. At the time of trial she had been living with her boyfriend and

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her other daughter for approximately one and one-half years. Id. The mother

presented evidence that S.W.H. would be well cared for in her current living

situation, while the appellees failed to provide any expert witnesses or other

evidence to establish that S.W.H. would be harmed by being placed with her

mother. Id. at 778–79. The CPS caseworker, who had been assigned to intervene

early in the case because the mother had tested positive for drugs, testified that she

had neither concerns about the conditions of the mother’s home nor other health or

safety concerns for S.W.H. and that CPS had never recommended that S.W.H. be

taken from her mother. Id. at 779. The Fort Worth Court of Appeals further

observed that the mother had “maintained steady employment, [kept] a safe and

stable home environment, and [had] bonded with S.W.H. during visitations” since

her release from the SAFP. Id.

      The court found no evidence that the mother’s appointment as managing

conservator would significantly impair S.W.H.’s physical health or emotional

development. Id. It reversed the trial court’s decision appointing the appellees

managing conservators and remanded for rendition of judgment naming the mother

the managing conservator of S.W.H. Id. Thus, again, the circumstances in In re

S.W.H., upon which both Bhan and the panel rely to support the appointment of

Bhan as sole managing conservator of J.A.B., are exactly the opposite of those in

this case.

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      In my view, the trial court correctly instructed the jury in the applicable

standard of proof in conservatorship proceedings; the jury’s findings were

supported by the evidence; the trial court correctly entered judgment on those

findings, in accordance with its statutory mandate; and it did not abuse its wide

discretion in appointing Danet and Kranz joint managing conservators and in

denying possession to Bhan; it is, instead, the appellate panel which has reached an

arbitrary and unreasonable ruling. See Low, 221 S.W.3d at 614; In re J.A.J., 243

S.W.3d at 616; see also TEX. FAM. CODE ANN. § 105.002(c)(1)(A)–(C) (Vernon

2008) (providing that party is entitled to jury verdict, and trial court may not

contravene jury verdict, on issues of appointment of sole managing, joint

managing, and possessory conservators).

                                    Conclusion

      I believe that the panel incorrectly applies both the standard of proof and the

standard of evidentiary review in conservatorship cases. It evaluates the facts

without regard to guiding principles or the jury’s findings. And it improperly

reverses the correct judgment of the trial court and arbitrarily and unreasonably

substitutes its own. The opinion and judgment in this case conflict with similar

cases from our sister appellate courts, the Texas Supreme Court, and the plain

language of the governing statutes, and they directly contravene the express

purpose and provisions of Family Code Chapter 153.           I further believe that

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enforcement of the panel’s judgment will have immediate and foreseeable

prejudicial results for the emotional and physical welfare of J.A.B., whose best

interests are the subject of these proceedings.         Finally, the precedent for

conservatorship cases established by this case is far outside the mainstream of

Texas law and sets a path for future cases that will subject children to arbitrary

appellate decisions as to what conservatorship arrangement is in their best interest,

in place of the carefully articulated statutory and case law currently governing this

vital area of family law. This shift in the law presents a particularly immediate

concern for those cases, like this one, in which a child has been removed from a

parent’s custody by the Department of Family Protective Services (DFPS),

formerly CPS, for abuse or neglect of the child by the parent, yet DFPS has

decided not to seek termination of parental rights, and, instead, has decided to

permit non-parents to seek to be appointed managing conservators in place of

DFPS. Therefore, I would grant en banc reconsideration. See TEX. R. APP. P.

41.2(c).




                                         46
      I would overrule Bhan’s issues and affirm the judgment of the trial court.




                                             Evelyn V. Keyes
                                             Justice


Panel consists of Justices Jennings, Sharp, and Brown.

En banc reconsideration was requested. TEX. R. APP. P. 41.2(c).

Chief Justice Radack and Justices Jennings, Keyes, Higley, Sharp, Massengale,
Brown, and Huddle participated in the vote to determine en banc reconsideration.
Justice Bland, not sitting.

A majority of the Court voted to deny en banc reconsideration. See TEX. R. APP. P.
49.7.

Justice Keyes, dissenting from the denial of en banc reconsideration.




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