                                  NO. 12-18-00178-CV

                          IN THE COURT OF APPEALS

               TWELFTH COURT OF APPEALS DISTRICT

                                     TYLER, TEXAS

 IN THE INTEREST OF                               §       APPEAL FROM THE 369TH

 L.G.K.S. AND L.L.L.S.,                           §       JUDICIAL DISTRICT COURT

 CHILDREN                                         §       ANDERSON COUNTY, TEXAS

                                  MEMORANDUM OPINION
       Appellant Leslie Sanchez and Appellee Keegan Stewart are the biological parents of
L.G.K.S. and L.L.L.S. In 2016, Sanchez initiated an original suit affecting the parent-child
relationship (SAPCR) seeking appointment as a joint managing conservator (JMC) with the
exclusive right to designate the children’s primary residence. Stewart filed a counterpetition
seeking the same. Following a bench trial, the trial court signed its final order appointing Stewart
as the JMC with the exclusive right to designate the primary residence of the children within
Anderson County, Texas. Sanchez presents six appellate issues for our consideration. We affirm.


                                          BACKGROUND
       Sanchez and Stewart had L.G.K.S. and L.L.L.S while they were in a long term cohabitating
relationship with one another. Both parties agree that a violent incident between them, which
occurred around the end of 2015, precipitated the end of their relationship. The Department of
Family and Protective Services (the Department) became involved when Sanchez went to the
hospital for injuries sustained in the incident. After the incident, the children lived with Sanchez
in Fort Worth, Texas. In approximately the middle of 2016, the Department received a report from
Stewart’s mother that Sanchez was using drugs. The Department asked Sanchez to submit to a
drug test, which revealed she was using methamphetamine. Thereafter, the children were placed
in Palestine, Texas with Stewart. From middle to late 2016 until February 2018, the children
resided with Stewart and his parents. In May, Stewart moved into his own apartment in Palestine
with the children and his new fiancé.
       Sanchez initiated this SAPCR in October 2016. In February 2017, Sanchez and Stewart
entered into a Rule 11 agreement wherein both parties would be made JMCs with Sanchez given
standard possession supervised by Sanchez’s father. Stewart was made the JMC with the right to
designate the children’s residence.
       The trial court conducted a bench trial beginning in February 2018 and ending in May,
with the parties presenting evidence on conservatorship issues. The court heard testimony from
Sanchez, Stewart, Stewart’s parents, Bill and Tamiko Stewart, Sanchez’s father, Trinidad Sanchez,
and Javette Gray-Gunter, a Department caseworker. The parties asked the court to appoint them
both as JMCs, but each petitioned to be designated the JMC with the right to designate the
children’s primary residence.
       Sanchez presented evidence that Stewart physically abused her during their relationship
and continued to verbally abuse her by phone and text message after their relationship ended. She
alleged that Stewart kept the children from her for approximately five months after she failed the
Department’s drug test and tried to alienate her from the children. She complained that the
Department did not drug test Stewart prior to placing the children with him, despite her and
Trinidad’s requests that they do so. Sanchez also cited Stewart’s alcohol use, past drug problems,
and placement on community supervision for a misdemeanor drug charge, as further reasons
supporting her request to be appointed JMC with the right to designate the children’s residence.
       Stewart argued that the children, who had been residing with him in Palestine for
approximately two years, were healthy, stable, and well cared for by him. He presented evidence
that Bill and Tamiko share a close relationship with the children and provide help with the care of
the children while he and his fiancé work. Stewart maintained that Sanchez’s physical abuse
allegations were exaggerated. He described his relationship with Sanchez as “toxic” because of
Sanchez’s methamphetamine use.          He testified that the violence that occurred during their
relationship was reciprocal. Stewart also presented evidence that, prior to the Department placing
the children with him, his son was frequently troubled by asthma symptoms related to Sanchez’s
tobacco use. Additionally, while living with Sanchez, the children frequently had lice. Stewart
testified that his daughter required oral surgery at two years of age due to her poor dental hygiene
while living with Sanchez. Stewart also established that Sanchez’s drug use caused her to lose



                                                  2
custody of her older daughter for a time. Further, Stewart established that while Sanchez maintains
she is sober, she currently has a child by and resides with a man on community supervision for
manufacture or delivery of methamphetamine.
       At the conclusion of the trial, the court appointed Stewart and Sanchez as JMCs, with
Stewart having the right to designate the children’s primary residence within Anderson County,
Texas. The court admonished Stewart about his anger issues relating to Sanchez, and ordered no
contact with her outside of the designated family communication electronic program. The court
made no finding that Stewart had a history of, or present or past pattern of, physical abuse against
Sanchez. The court further ordered each party to take a drug test upon each other’s request. In
the event that Sanchez tested positive for drugs, her visitation would be immediately suspended,
and an emergency hearing would be held. In the event Stewart tested positive for drugs, the
children would be delivered to Stewart’s parents and an emergency hearing would be held. This
appeal followed.


                                    CONSERVATORSHIP ORDER
       In Sanchez’s first issue, she argues that the evidence is factually insufficient to support the
trial court’s order appointing Stewart as JMC with the right to designate the children’s residence.
In her first subpoint, she argues that the trial court disregarded evidence of Stewart’s past physical
abuse against Sanchez, or alternatively, abused its discretion in finding that the “family violence
presumption was rebutted.” In her second subpoint, she asks whether “the [c]ourt’s disregard to
[Sanchez’s] sobriety and to her other children cause[d] an improper judgment.” In her second issue,
she argues that the trial court erred in excluding (1) a police report she made regarding the 2015
incident that led to her hospitalization; (2) photographs of her injuries from the 2015 incident; and
(3) an exhibit she describes as “[Stewart’s] probation revocation showing he had admitted to
alcohol use while he was on probation for possession of a controlled substance.”

       In her third issue, she complains that the trial court’s treatment of the parties shows that
the trial court was biased in favor of Stewart and his parents, and this bias led to an improper
judgment. In her fourth issue, she argues that the trial court “awarded paternal grandparents
conservatorship under the guise that [Stewart] was awarded the right to designate primary
conservatorship violating [Sanchez’s] constitutional rights as a parent.” In her fifth issue, she
complains that the trial court’s order regarding future drug testing of her and Stewart gave


                                                  3
“paternal grandparents a ‘greater right of conservatorship’ of the children over [Sanchez] thereby
disregarding her parental rights under the Texas Constitution.”
       Finally, in her sixth issue she argues that the trial court’s abuse of discretion led to an
improper judgment that requires reversal.
       While Sanchez labels six issues, her brief does not delineate separate arguments for each
issue. Because all of her numbered issues are related and subject to the same standard of review,
we address them together.
Standard of Review
       We review a trial court’s decision regarding child custody, control, possession and
visitation under an abuse of discretion standard. Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex.
App.—Dallas 1999, no pet.). The trial court’s judgment will only be disturbed where the record as
a whole shows that the trial court abused its discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982); Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.—Dallas 2006, no pet.). A
trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts
without reference to any guiding principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990)
(per curiam); In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.).
       Because the traditional sufficiency standard of review overlaps with the abuse of discretion
standard in family law cases, legal and factual sufficiency are not independent grounds of error
but are relevant factors in our assessment of whether the trial court abused its discretion. In re
A.B.P., 291 S.W.3d at 95; Peck v. Peck, 172 S.W.3d 26, 33 (Tex. App.—Dallas 2005, pet. denied).
To determine whether the trial court abused its discretion because the evidence is insufficient to
support its decision, we consider whether the trial court (1) had sufficient evidence upon which to
exercise its discretion and (2) erred in its exercise of that discretion. Vardilos v. Vardilos, 219
S.W.3d 920, 921 (Tex. App.—Dallas 2007, no pet.). We conduct the applicable sufficiency review
with regard to the first question. A.B.P., 291 S.W.3d at 95; Moroch v. Collins, 174 S.W.3d 849,
857 (Tex. App.—Dallas 2005, pet. denied). We then proceed to determine whether, based on the
evidence, the trial court made a reasonable decision. Moroch, 174 S.W.3d at 857. If some evidence
of a substantive and probative character exists to support the trial court’s decision, there is no abuse
of discretion. In re C.C.J., 244 S.W.3d 911, 917 (Tex. App.—Dallas 2008, no pet.). When, as
here, the trial court makes no separate findings of fact or conclusions of law, we must draw every




                                                   4
reasonable inference supported by the record in favor of the trial court’s judgment. Worford, 801
S.W.2d at 109.
Applicable Law
        The best interests of the children shall always be the primary consideration of the court in
determining issues of conservatorship and possession of and access to the child. TEX. FAM. CODE
ANN. §153.002 (West 2014). Suits affecting the parent-child relationship are “intensely fact driven,
which is why courts have developed best interest tests that consider and balance numerous factors.”
Lenz v. Lenz, 79 S.W.3d 10, 18-19 (Tex. 2002). Due to the fact sensitive nature of these cases,
trial courts have a degree of flexibility to deal with unforeseen fact patterns which allows them the
ability to resolve issues on a case by case basis. See id.
        When the trial court appoints joint managing conservators, the court must designate the
conservator who has the exclusive right to determine the primary residence of the child and must
either establish a geographic area within which the conservator shall maintain the child’s primary
residence or specify that there are no geographic restrictions. TEX. FAM. CODE ANN. §
153.134(b)(1) (West 2014). There is a rebuttable presumption that it is in best interests of the child
or children to appoint both parents as JMCs, however, a finding of a history of family violence
involving the parents removes the presumption.            See id. § 153.131 (a),(b) (West 2014).
Furthermore, the family code prohibits the appointment of the parents as JMCs if credible evidence
of domestic violence is presented. See id. § 153.004(b) (West Supp. 2018). Credible evidence of
domestic violence is evidence that a parent has a history or pattern of past or present child neglect
or a history of physical or sexual abuse that has been directed against the other parent, a spouse,
or a child. See id. When, as here, the trial court is the fact finder, it is the sole judge of the weight
and credibility of the evidence; if it does not find credible evidence of a history of domestic
violence, it is not bound by Section 153.004. Matter of Marriage of Harrison, 557 S.W.3d 99,
127 (Tex. App.—Houston [14th Dist.] 2018, pet. denied).
        The admission and exclusion of evidence is committed to the trial court’s sound discretion.
Id. at 121. On appeal, the party must demonstrate that the trial court erred in excluding the
evidence and that the error probably caused the rendition of an improper judgment. Id. In
determining harm, the court ordinarily will not reverse a judgment when the evidence in question
is cumulative and not controlling on a material issue dispositive to the case. Id. A successful




                                                   5
challenge to evidentiary rulings usually requires the complaining party to show that the judgment
turns on the particular evidence excluded or admitted. Id.
Relevant Testimony
         Sanchez testified that Stewart physically assaulted her on at least thirty occasions during
their relationship. She described in detail the incident in which she alleged Stewart assaulted her
in late 2015. Sanchez testified that Stewart became angry with her because he felt unwell. She
told the court that Stewart picked her up, threw her out of bed, and began hitting her. She testified
that she attempted to run away, but he followed her and pushed her into a piece of furniture, causing
her to sustain a severe ear injury that required stitches. She testified that Stewart put his hands
around her neck at some point, and she suffered bruises on her arm and skin breakage on her neck.
Sanchez testified that on another occasion, a year or two before the 2015 incident, Stewart pushed
her and punched her in the buttocks area, breaking her tailbone. She testified that on another
occasion around the same time as the broken tailbone incident, Stewart grabbed her head and
slammed it into the wall causing a laceration that required several staples. She testified that she
only reported the most recent incident to the police. Sanchez offered a copy of the police report
and photographs of her injuries into evidence, but the trial court sustained Stewart’s objections to
the exhibits. Sanchez testified Stewart had not physically assaulted her since their separation, but
continued to verbally abuse her through phone calls and text messages.
        Stewart described the 2015 incident differently. He testified that they were arguing and
“things got out control” and he shoved Sanchez. He testified that Sanchez hit the corner of the
wall, causing her ear injury. He denied Sanchez’s other allegations of hitting and choking and
testified that the only other time he was violent with Sanchez was an occasion prior to 2015 when
he pushed her to the ground during an argument. He testified that Sanchez was physical with him
as well, and the violence that occurred in the relationship was reciprocal and fueled by Sanchez’s
drug use. Stewart testified that he is currently able to communicate civilly with Sanchez since they
began using the “Family Wizard” application. 1 Stewart testified that he does not have an anger or
violence problem, and that his relationship with his current fiancé is stable and peaceful. Stewart
blamed any anger issues on the toxicity of his relationship with Sanchez.


        1
         Our Family Wizard is a website that is designed to facilitate communications between divorced or separated
parents with features such as a co-parenting calendar, message board, expense log, and info bank. See THE
OUR FAMILY WIZARD WEBSITE REVIEW, https://www.ourfamilywizard.com/about-us/OFW-review-for-
parents.


                                                        6
       Gray-Gunter testified that the Department offered services to Sanchez after the 2015
incident. Gray-Gunter testified that in May 2016, the Department received a report that Sanchez
was using methamphetamine and a drug test confirmed the report. Gray-Gunter testified that the
Department stopped offering services to Sanchez in August 2016 because she left drug treatment.
At that time, the Department had a family planning conference with Sanchez, Stewart, and Bill.
Gray-Gunter testified that Sanchez felt it was best for the children to remain with Stewart until she
could get “herself together.” Gray-Gunter testified that she did not drug test Stewart and doesn’t
recall Sanchez ever asking her to drug test Stewart. Gray-Gunter testified that the Department did
not have concerns about Stewart using drugs or abusing Sanchez, because Stewart was living with
Bill and Tamiko, and they were the children’s primary caretakers. Gray-Gunter testified that the
Department closed their case in August 2016. She testified that she has had no professional contact
with the family since that time and has no knowledge of the events that transpired with the family
since the case closed.
       Bill testified that he believed the violence between Stewart and Sanchez was mutual based
upon his conversations with Gray-Gunter. Tamiko testified that Sanchez and Stewart lived with
her and Bill on and off throughout their relationship, and she never witnessed any physical
violence. She described overhearing the two engage in “toxic” verbal arguments. She testified to
seeing Sanchez with bruises and she suspected these were “caused by” Stewart. Tamiko and Bill
agreed that Stewart and his current fiancé have a good relationship free from dysfunction or
violence.
       Sanchez admitted to having a methamphetamine problem prior to and during her
relationship with Stewart. She testified that Stewart used methamphetamine with her during their
relationship. She testified that Stewart sold drugs while they were together. Sanchez and her
father testified that Stewart consumed alcohol while caring for the children and once drove the
children while he was intoxicated. Stewart denied using drugs, and told the court that his drug
charge was a result of being in Sanchez’s car with her and prescription pain pills that belonged to
her, but were not prescribed to her. Stewart denied having an alcohol problem, and testified that
he only drinks alcohol when the children are with Sanchez, and only in moderation. Bill and
Tamiko testified that they believe that Stewart used methamphetamine when he was with Sanchez,
but has been clean for approximately the last three to four years.




                                                 7
       Sanchez testified that Stewart kept the children away from her for five months after the
children were placed with him. Stewart testified that the Department informed him that it was best
not to send the children to Sanchez until a court order was in place. Stewart disputed Sanchez’s
claims that he withheld the children for five months, and recalled an occasion where Sanchez’s
father picked up the children and an occasion where Sanchez picked up the children. Stewart
admitted to saying “messed up things” to Sanchez. The text messages Stewart sent Sanchez
disparage her parenting skills, drug usage, and choice of male partners in a brutal manner.
       Stewart testified that he worked two jobs, one at United Parcel Service and one at Pizza
Hut. He testified that he makes sure the children’s physical and emotional needs are met. Bill
and Tamiko testified that they believe the children are better off living in Palestine, Texas with
Stewart. They described him as a good and loving father. They testified that they support Stewart
and the children by caring for the children when Stewart is working and providing some financial
assistance.
Section 153.004
       We note that Section 153.004 bars the appointment of both parents as JMCs if it is shown
by credible evidence that there is a history or pattern of physical abuse by one parent against the
other. TEX. FAM. CODE ANN. § 153.004(b). In this case, Sanchez petitioned the court to appoint
both her and Stewart as JMCs. Assuming this does not constitute invited error, and in the interest
of judicial economy, we will address Sanchez’s contention that Section 153.004 bars the
appointment of Stewart as JMC with the right to designate the primary residence. See Keith v.
Keith, 221 S.W.3d 156, 163 (Tex. App.—Houston [1st Dist.] 2006, no pet.) (under the doctrine of
invited error, an appellant may not complain on appeal that a court granted the appellant’s own
request).
       Based on the foregoing testimony, it is clear that the trial court was presented with
materially different accounts of the incidences of violence in Sanchez’s and Stewart’s relationship.
Stewart denied the majority of Sanchez’s abuse allegations, but did admit to pushing her on two
separate occasions during arguments. He testified that Sanchez had been “physical” with him in
the past, but did not elaborate.
       When, as here, the trial court is the fact finder, it is the sole judge of the weight and
credibility of the evidence; if it does not find credible evidence of a history of domestic violence,
it is not bound by Section 153.004. Harrison, 557 S.W.3d at 127–28. Further, while a single



                                                 8
incident of physical violence could constitute a history of physical abuse, the trial court was also
able to consider Stewart’s explanation of what occurred and the amount of time that passed since
the events in weighing whether a history of abuse was shown. See id. at 128. In its role as
factfinder, the trial court was entitled to choose which account to believe and could have
reasonably credited Stewart’s version of events. In doing so, the trial judge could have reasonably
found no credible evidence of a history or pattern of domestic abuse by Stewart; thus, the present
record does not give rise to a rebuttable presumption that the appointment of Stewart as JMC with
the right to designate the children’s primary residence was not in the children’s best interest under
Section 153.004(b). See id. at 130 (no abuse of discretion in appointing husband sole managing
conservator even though husband pleaded “no contest” to misdemeanor assault because conflicting
evidence was presented at trial regarding husband’s history of domestic abuse against wife); see
also Burns v. Burns, 116 S.W.3d 916, 920 (Tex. App.—Dallas 2003, no pet.) (no abuse of
discretion in appointing husband as joint managing conservator with right to designate primary
residence of children when conflicting evidence that husband abused wife was presented and
nothing in record undisputedly showed pattern of abuse). Accordingly, we conclude that Sanchez
has not shown that the trial court abused its discretion in designating Stewart as JMC with the right
to designate the children’s primary residence, notwithstanding her allegations that Stewart had a
history or pattern of physical violence against her. See Harrison, 557 S.W.3d at 130. We overrule
this portion of Sanchez’s first issue.
Evidentiary Issues
       In addition to her argument that Section 153.004 barred Stewart’s appointment as JMC
with the right to designate the primary residence, Sanchez complains that the trial court erred by
not admitting certain evidence in support of her domestic violence allegations. Specifically, she
argues that the trial court erroneously sustained Stewart’s objections to a police report regarding
the 2015 incident and photographs taken of her injuries.
       Sanchez testified at length regarding the 2015 incident and attempted to admit a police
report purportedly prepared by the Greenville Police Department regarding the incident. Stewart
objected to the police report on the grounds that Sanchez had not properly authenticated the report
and it contained hearsay. Sanchez argued that the police report qualified as a self authenticating
document pursuant to rule of evidence 902(4). See generally TEX. R. EVID. 902 (designating certain
documents as “self authenticating” and requiring no extrinsic evidence of authenticity in order to



                                                 9
be admitted). Public records can be self authenticating if they are under seal or are certified copies.
See id. 902 (1), (4), (10). However, the police report Sanchez offered was not under seal nor was
it a certified copy. Thus, Sanchez failed to demonstrate that the trial court erred in excluding the
evidence. See Harrison, 557 S.W.3d at 121.
       In addition to the police report, Sanchez attempted to introduce photographs of her injuries
attached to the report. Stewart objected that the photographs were not properly authenticated. A
review of the record shows that Sanchez testified that the photographs were an accurate
representation of her injuries at the time Stewart inflicted them. See S.D.G. v. State, 936 S.W.2d
371, 381 (Tex. App.—Houston [14th Dist.] 1996, writ denied) (predicate for introduction of
photograph requires proof of its accuracy as a correct representation of subject at a given time, and
its relevance to a material issue). The trial court denied the admission of the photographs on
grounds that it already heard Sanchez’s testimony describing her injuries. The record shows that
Sanchez testified in detail about the injuries she sustained during the 2015 incident; thus,
photographs of these injuries would be cumulative to evidence already before the court. Therefore,
we do not conclude that the exclusion of the photographs caused the rendition of an improper
judgment in this case. See Harrison, 557 S.W.3d at 121.
       Sanchez also argues that the trial court abused its discretion in failing to admit an exhibit
that Sanchez purports to be a “probation revocation” showing that Stewart admitted to using
alcohol while on community supervision for the previously discussed drug charge.              Sanchez
offered the exhibit during her examination of Stewart when he denied having “any issues with
[his] probation.” Stewart objected to the document on the grounds that it had not been properly
authenticated and contained hearsay. Sanchez argued that it was a self authenticating document
pursuant to Rule 902. After confirming that the exhibit was not a certified copy of a court filing,
the trial court excluded the exhibit. Sanchez then attempted to enter the exhibit for impeachment
purposes after Stewart denied telling his community supervision officer that he used alcohol. The
trial court denied admission of this evidence.
       Unlike the other two exhibits, this exhibit does not appear in the appellate record. Although
Sanchez’s attorney referenced the exhibit as a photocopy of a “revocation of [Stewart’s] probation”
and questioned Stewart about admitting to the use of alcohol to his community supervision officer,
the actual exhibit was not tendered to the court reporter nor did Sanchez make a formal offer of
proof. Because we are unable to determine the substance of the exhibit from the discussion about



                                                  10
the exhibit on the record, and the exhibit is not included as an offer of proof, we conclude that
Sanchez failed to preserve error as to the trial court’s exclusion of this exhibit. See TEX. R. EVID.
103(a)(2); TEX. R. APP. P. 33.1; In Interest of M.G.N., 491 S.W.3d 386, 400 (Tex. App.—San
Antonio 2016, pet. denied). Moreover, Sanchez does not make any argument or cite any authority
in her brief, beyond the conclusory statement that the trial court erred in excluding the exhibit, as
to why the exhibit should have been admitted. See TEX. R. APP. P. 38.1(i). Even had Sanchez
preserved error as to this complaint, we would conclude any error was harmless because the reason
for which the exhibit was offered, i.e., to prove that Stewart admitted to alcohol use while on
community supervision, was not a controlling or material issue dispositive to the case. See
Harrison, 557 S.W.3d at 121. The trial court was aware both that Stewart used alcohol, and that
Stewart had been on community supervision for a drug offense. The record simply does not
demonstrate that proof Stewart used alcohol while on community supervision in 2016, when he
unquestionably successfully completed his community supervision, would have influenced the
trial court’s decision in appointing Stewart as JMC with the right to designate the children’s
primary residence. 2 See Id. We overrule Appellant’s second issue.
Other Arguments
        With respect to whether the trial court generally abused its discretion by appointing Stewart
as the JMC with the right to designate the primary residence, based upon Sanchez’s other
arguments, we remain mindful that the best interest of the children shall always be the primary
consideration of the court in determining issues of conservatorship of and access to the child. TEX.
FAM. CODE ANN. 153.002; Lenz,79 S.W.3d at 899. The court heard evidence from each parent
about the faults of the other. Sanchez argues that the trial court abused its discretion because of
evidence that Stewart physically and verbally abused her and alienated her from the children. She
points out that the trial court ordered Stewart to participate in an anger management class and
admonished him about communicating with Sanchez in an abusive manner and attempting to
alienate her from the children. She also argues that the trial court disregarded evidence that she
rehabilitated herself and had been sober for almost two years. She further argues that the trial
court showed bias in favor of Stewart because of his parents, Bill and Tamiko. In support of her
argument, she notes that the trial court allowed Stewart’s parents “to sit in front of the bench facing


        2
         Sanchez’s attorney referenced in her cross examination that the alleged motion to revoke Stewart’s
community supervision was subsequently dismissed.


                                                    11
the audience while parties and counsel were at counsel table and maternal grandfather was left in
the audience, while the Judge granted [Stewart] the exclusive right to designate the primary
residence.”
        As previously discussed, the trial court was presented with contradicting accounts
regarding the past history of physical violence between Sanchez and Stewart. As the sole judge
of the credibility of the witnesses, the trial court was free to disbelieve Sanchez’s account with
respect to the alleged physical violence. See Harrison, 557 S.W.3d at 127. While the trial court
heard some evidence that Stewart verbally abused Sanchez and attempted to alienate the children
from her, it also heard evidence that the children’s health and hygiene suffered when they were
living with Sanchez prior to the Department placing the children with Stewart. Furthermore, it
heard evidence that the children had been living in Palestine with Stewart for the previous two
years, and were healthy, happy, and stable in their current environment. The evidence indicated
that while Stewart seemed to have anger directed at Sanchez, he maintained a healthy relationship
with his current fiancé and took good care of his children. With respect to Sanchez’s arguments
regarding her sobriety, the court also heard evidence that Sanchez currently resides with a man on
community supervision for manufacture and delivery of methamphetamine.
       Viewing the record as a whole, we cannot say that the trial court abused its discretion by
appointing Stewart as JMC with the right to designate the children’s primary residence. See
Gillespie, 644 S.W.2d at 451. There was sufficient evidence upon which the trial court exercised
its discretion, as demonstrated by our discussion of the evidence contained in the record. See
Vardilos, 219 S.W.3d at 921; A.B.P., 291 S.W.3d at 95. Based on that evidence, we conclude that
the trial court’s decision was reasonable. See Moroch, 174 S.W.3d at 857. Some evidence of a
substantive and probative character exists to support the trial court’s decision that the appointment
of Stewart as JMC with the right to designate the primary residence is in the best interests of the
children. See TEX. FAM. CODE ANN. 153.002; Lenz,79 S.W.3d at 899; C.C.J., 244 S.W.3d at 917.
Thus, we overrule this portion of Sanchez’s first issue and her sixth issue.
Judicial Bias
       With respect to Sanchez’s arguments that the trial court was biased in favor of Stewart
and/or his parents, it is well established that absent a clear showing of bias, we presume a trial
court’s actions were not so tainted. Barfield v. State, 464 S.W.3d 67, 80 (Tex. App.—Houston
[14th Dist.] 2015, pet. ref’d). To reverse a judgment based on improper comments or conduct by



                                                 12
the judge, we must find (1) that judicial impropriety occurred and (2) prejudice probably resulted.
Id. Remarks by the judge during trial that are critical or disapproving of, or even hostile to counsel,
the parties, or their cases, ordinarily do not support a challenge for bias unless they reveal an
opinion derived from an extrajudicial source. Id. When no extrajudicial source is alleged, such
remarks demonstrate bias only if they reveal such a high degree of favoritism or antagonism as to
have made fair judgment impossible. Id.
         Sanchez argues that the trial court showed bias by allowing Stewart’s parents to sit in front
of the bench when it rendered judgment, and asserts in her brief that Stewart’s parents were “well
known in the community.” For this proposition she cites to testimony from Stewart that his father
is a high school principal and his mother is a nurse at a local hospital. It is unclear from the record
the exact reason why the trial court asked Stewart’s parents to sit in front of the bench when it
rendered its judgment. Sanchez argues that it shows bias, but she likewise acknowledges that the
record shows that Stewart’s parents were involved in the children’s lives and provided a support
system for Stewart. In any event, the trial court’s action in allowing Stewart’s parents to sit in
front of the bench as it rendered judgement, along with her conclusory assertion that they are well
known in the community, are simply insufficient to reveal an extrajudicial bias, or a high degree
of favoritism or antagonisms to have made fair judgment impossible. See id. We overrule
Sanchez’s third issue.
Constitutional Violations
         Sanchez also argues that the trial court “awarded the paternal grandparents conservatorship
under the guise that [Stewart] was awarded the right to designate primary conservatorship violating
[Sanchez’s] constitutional rights as a parent and favoring grandparents over [Sanchez].” She cites
to Troxel v. Granville in support of this contention. 530 U.S. 57, 120 S. Ct. 2054, 2055, 147 L.
Ed. 2d 49 (2000). While Troxel recognizes that the Due Process Clause encompasses the liberty
of parents to make decisions concerning the care, custody, and control of their children, the case
does not support Sanchez’s argument that the trial court subverted Sanchez’s rights in favor of
Stewart’s parents. 3 The trial court did not award Stewart’s parents conservatorship of the children.

          3
            In Troxel, the paternal grandparents of two children petitioned the court for visitation with their
grandchildren after the death of their son, the children’s father. 530 U.S. at 60, 120 S.Ct. at 2057. They were awarded
visitation with their grandchildren under a statute that allowed a court to order visitation of children to any person that
petitioned for visitation, if said visitation served the best interests of the child. Id. The children’s mother did not
oppose the grandparents having visitation with the children, but opposed the amount and frequency the grandparents
were awarded. Id. The supreme court held the statute, as applied to the mother, unconstitutionally infringed on her


                                                           13
Sanchez argues that the evidence at trial established that Stewart’s parents were the “primary
caretakers” of the children, thus, the trial court essentially appointed Stewart as JMC with right to
designate the children’s primary residence to allow the grandparents to continue to care for the
children.
         We disagree with Sanchez’s interpretation of the evidence. Stewart and his parents
testified that, while the children lived with Stewart and his parents, Stewart had been primarily
responsible for the children’s care. Further, by the time the court entered its judgment, Stewart
had moved out of his parents’ home and was living with the children at his own residence. While
the testimony certainly establishes that Stewart’s parents enjoy a close relationship with the
children and help Stewart care for them, Sanchez has provided us with no authority that these
circumstances amount to the trial court awarding conservatorship to Stewart’s parents under a
“guise” that violates her constitutional rights as a parent. See TEX. R. APP. P. 38.1(i) (appellant’s
brief must contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record). Moreover, the objective of providing a “safe, stable, and
nonviolent environment for the child” is advanced by healthy relationships with and support from
extended family, such as grandparents. See Avila v. Avila, No. 03-05-00030-CV, 2006 WL
2986225, at *4 (Tex. App.—Austin Oct. 20, 2006, no pet.) (mem. op.). We overrule Sanchez’s
fourth issue.
         Finally, Sanchez complains that the trial court’s order with respect to future drug testing of
the parties constituted an abuse of discretion because it gives Stewart’s parents a “greater right of
conservatorship” of the children than Sanchez. The trial court ordered that if Sanchez failed a drug
test, her possession and access would be immediately suspended pending an emergency hearing.
The order provided that if Stewart failed a drug test, the children would be delivered to his parents
pending an emergency hearing. Sanchez cites to Troxel in support of her argument. Troxel, as
previously discussed, has no application to the facts of this case. And again, it is the best interests
of the children that serves as the trial court’s primary consideration in determining issues of
conservatorship and possession of and access to the children. TEX. FAM. CODE ANN. §153.002.
As such, the trial court could reasonably conclude that the drug testing provision was in the
children’s best interest. Sanchez cites no authority, nor is this Court aware of any, for her


fundamental right, as the fit custodial parent, to make decisions regarding her children. Id., 530 U.S. at 72, 120 S. Ct.
at 2063.


                                                          14
contention that the trial court’s order violates her constitutional rights as a parent. See TEX. R.
APP. P. 38.1(i). We overrule Sanchez’s fifth issue.


                                                  DISPOSITION
         Having overruled all six of Sanchez’s issues, we affirm the trial court’s judgment.


                                                                 GREG NEELEY
                                                                    Justice



Opinion delivered September 18, 2019.
Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.




                                                   (PUBLISH)




                                                         15
                                   COURT OF APPEALS

      TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

                                           JUDGMENT

                                        SEPTEMBER 18, 2019


                                         NO. 12-18-00178-CV


                        IN THE INTEREST OF L.G.K.S. AND L.L.L.S.



                                Appeal from the 369th District Court
                    of Anderson County, Texas (Tr.Ct.No. DCCV17-054-369)

                       THIS CAUSE came to be heard on the appellate record and briefs filed
herein, and the same being considered, it is the opinion of this court that there was no error in the
judgment.
                       It is therefore ORDERED, ADJUDGED and DECREED that the judgment
of the court below be in all things affirmed, and that all costs of this appeal are hereby adjudged
against the Appellant, LESLIE SANCHEZ, for which execution may issue, and that this decision
be certified to the court below for observance.
                    Greg Neeley, Justice.
                    Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.
