                         COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                              NO. 02-15-00203-CV


IN THE INTEREST OF S.T., A
CHILD




                                      ----------

        FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
                   TRIAL COURT NO. 323-99427J-13

                                      ----------

                                     OPINION

                                      ----------

                                   I. Introduction

      In a single issue, Appellant Father appeals the trial court’s determination

that the Department of Family and Protective Services (DFPS) should remain his

child S.T.’s managing conservator. We reverse the trial court’s judgment and

remand the case for a new trial.
                    II. Factual and Procedural Background

      DFPS filed a petition for protection, conservatorship, and termination of

parental rights a few days after S.T.’s birth in November 2013.1 Not quite a year

later, when DFPS notified Father that he might be S.T.’s father, he immediately

wrote back, requested a DNA test, and stated that he would parole within five

months.2    The trial court extended the suit’s dismissal date and ordered a

paternity test.   The test results confirming Father’s paternity were filed on

December 29, 2014.

      In January 2015, in his CPS service plan, Father was assigned parenting

classes, a substance abuse assessment, random drug tests, and individual

counseling, and he was required to refrain from criminal activities, illegal acts,

and illegal drugs and to maintain safe, stable, and appropriate housing.3 In April

2015, Father filed an original answer in the case, requesting appointment as the

child’s permanent managing conservator or, alternatively, appointment of DFPS

      1
       S.T. tested positive for cocaine at birth; she was removed from her mother
because her mother had been using crack cocaine, alcohol, and marijuana while
pregnant with the child. As of mid-May 2014, S.T.’s father was listed as
“unknown father.” In June 2014, when S.T.’s mother revealed Father’s identity
as the child’s father, she told her Child Protective Services (CPS) caseworker
that Father was in jail for supplying drugs to her. Father denied having ever
given drugs to S.T.’s mother.
      2
         Father had been incarcerated in a Texas Department of Criminal Justice
facility for heroin possession. He made parole in January 2015, and the case
was continued to give him an opportunity to work his CPS service plan.
      3
      Father had complied with almost all of his service plan requirements by
May 2015.

                                        2
as the child’s permanent managing conservator and his appointment as the

child’s possessory conservator.

      DFPS filed a motion seeking to be named the child’s permanent managing

conservator and for S.T.’s maternal grandmother P.T. to be named the child’s

temporary possessory conservator.4 At the conclusion of the hearing on DFPS’s

motion, DFPS asked the trial court to make DFPS S.T.’s permanent managing

conservator, make P.T. the child’s possessory conservator, and adjudicate

Father as S.T.’s father.5 The trial court adjudicated Father as the child’s father,

named DFPS as S.T.’s managing conservator, and named P.T. as the child’s

temporary possessory conservator.6

                                  III. Discussion

      Father argues that the evidence is legally and factually insufficient to

support the trial court’s finding that appointing him as S.T.’s sole managing

conservator or a joint managing conservator would significantly impair the child’s

physical health or emotional development.       He complains that the trial court




      4
        S.T.’s foster parents filed a petition in intervention, seeking to become the
child’s sole managing conservators and seeking termination of both parents’
rights to the child.
      5
        S.T.’s mother and S.T.’s ad litem attorney both agreed with DFPS’s plan
for the child.
      6
        The trial court dismissed DFPS’s petition to terminate parental rights and
the intervenors’ claims.

                                         3
abused its discretion because the evidence is insufficient to overcome the

parental presumption in family code section 153.131(a).

       DFPS responds that Father invited the error he now complains of when he

requested the relief the trial court granted, even though he requested this relief in

the alternative, and that the evidence is legally and factually sufficient to support

the trial court’s order.

A. Invited Error

       Under the doctrine of invited error, a party is estopped from challenging a

trial court’s ruling on appeal if the complaining party actually requested the

specific action that the trial court took. Everitt v. Everitt, No. 01-11-00031-CV,

2012 WL 3776343, at *10 (Tex. App.—Houston [1st Dist.] Aug. 31, 2012, no pet.)

(mem. op.) (citing Tittizer v. Union Gas Corp., 171 S.W.3d 857, 861–62 (Tex.

2005)). This rule bars a party from convincing a trial court to take a particular

action and then convincing an appellate court that the trial court’s action was

erroneous—that is, it prevents an appellant from having his cake and eating it

too.

       Whether in this case Father is estopped from challenging the trial court’s

decision depends upon what Father requested the trial court to do, how clearly

he articulated his request, and whether the trial court ultimately granted the relief

requested.

       In his pleadings, Father requested two alternative forms of relief:



                                          4
            . . . that [S.T.] be returned to [Father] and [Father] be named
      Permanent Managing Conservator of [S.T.]. Or, in the alternative,
      [Father] prays that [Father]’s parental rights are not terminated and
      the Department of Family and Protective Services be named
      Permanent Managing Conservator and [Father] be named
      Possessory Conservator over [S.T.].

The trial court did not grant either of these alternatives; therefore, based upon the

pleadings, the invited error doctrine would not preclude Father from challenging

the trial court’s ruling on appeal. In re Dep’t of Family & Protective Servs., 273

S.W.3d 637, 646 (Tex. 2009) (orig. proceeding) (holding that the invited error rule

did not apply when “[appellant] does not assert error in regard to what she asked

the trial court to do and it did do . . . [s]he asserts error in regard to what she

asked the trial court to do and it did not do”).

      However, at the permanency hearing three weeks later, Father’s request

for alternative relief changed.     During opening statements, Father’s attorney

stated his position as, “I believe today the father will be asking for custody of the

child, possession of the child, or, in the alternative, possession of the child going

to maternal grandparents.” And Father testified consistent with his attorney’s

opening statement:

             Q. Are you okay with if [sic] the Court desires for CPS to
      remain in the case and monitor your placement with [S.T.] – or
      [S.T.]’s placement with you?

             A. Yes.

             ....




                                           5
             Q. If this Court does not feel at this time you’re ready for
      placement for [S.T.] to be placed with you, are you asking the Court
      to place with [P.T.]?

            A. Yes.

Thus, at this juncture during trial, the record shows that Father requested that the

trial court either: (1) place S.T. with him on a DFPS-monitored basis, or (2) place

the child with her grandmother.

      However,     during   final   argument,    Father’s    attorney   equivocated,

summarizing Father’s position as:

            . . . . And we are today asking you to return the child to
      [Father]. If the Court doesn’t feel comfortable returning, you know,
      bam, PMC, we’re out of here. And I understand that, and I think
      [Father] understands that.

            He testified that he would understand -- he would understand
      about having a monitored return is what the Department would say
      and allow the Department to monitor that. He hasn’t had that
      opportunity . . . .

            . . . Screw it up if he has to, but at least prove to the Court that
      he can do it or cannot do it. And if this Court doesn’t think that he’s
      -- he needs to have the opportunity to do that, then we do ask that
      you place with [P.T.], either on a PMC basis or the Department
      PMC, and to allow [Father] to finish his individual counseling,
      however much is left of that. But I believe that he at least needs that
      opportunity to do that.

              . . . He’s done everything he needed to do, with the exception
      of finishing those individual counseling. So I ask this Court to return
      the child to him, give him the opportunity. If the Court doesn’t like
      that, then to give to [P.T.]. If the Court gives the [foster parents] to
      provide some kind of guideline for them to allow this child to visit with
      the parents and blood-related siblings. [Emphasis added.]




                                          6
      At the outset of final argument, Father’s attorney urged the trial court to

appoint him permanent managing conservator of S.T., but barring that, to provide

a DFPS-monitored placement with him.         Just minutes later in the argument,

Father’s attorney modified Father’s position somewhat, requesting that the court:

(1) place S.T. with him, or alternatively, (2) place S.T. with grandmother as

permanent managing conservator, or (3) place S.T. with DFPS as permanent

managing conservator.     A few minutes later, Father’s attorney concluded his

argument by seeking yet a different outcome: (1) placement of S.T. with Father,

or (2) placement of S.T. with her grandmother.7 In its May 29, 2015 order, the

trial court appointed DFPS as permanent managing conservator of S.T. with P.T.

as S.T.’s temporary possessory conservator, and ordered that Father have

reasonable visitation and access to S.T. “as agreed upon, arranged by, and

supervised by DFPS or any responsible adult approved by DFPS.”

      The concept of invited error in Texas jurisprudence is said to be “grounded

in even justice and dictated by common sense.” Neasbitt v. Warren, 22 S.W.3d

107, 112 (Tex. App.—Fort Worth 2000, no pet.) (citing Ne. Tex. Motor Lines, Inc.

v. Hodges, 158 S.W.2d 487, 487–88 (Tex. 1942)). This rule, which finds its roots

in equity and is a form of estoppel, bars a party from encouraging a court to take

a specific action and then complaining on appeal that the trial court erred by


      7
        Father’s attorney also added that if the court placed the child with the
foster parents, that guidelines be established for his visitation with S.T. The court
did not place S.T. with the foster parents.

                                         7
taking it. Dep’t of Family & Protective Servs., 273 S.W.3d at 646 (citing Tittizer,

171 S.W.3d at 862); see also Tittizer, 171 S.W.3d at 862 (“[A] party cannot

complain on appeal that the trial court took a specific action that the complaining

party requested . . . .”); Dalworth Restoration, Inc. v. Rife-Marshall, 433 S.W.3d

773, 787 (Tex. App.—Fort Worth 2014, pet. dism’d w.o.j.) (“The invited error

doctrine prevents a party from asking for relief from the trial court and later

complaining on appeal that the trial court gave it.”); Garcia v. Garza, 311 S.W.3d

28, 38 (Tex. App.—San Antonio 2010, pet. denied) (op. on reh’g) (citing Doucet

v. Owens-Corning Fiberglas Corp., 966 S.W.2d 161, 165 (Tex. App.—Beaumont

1998, pet. denied), cert. denied, 526 U.S. 1131 (1999)).

      How the invited-error doctrine applies to circumstances such as these,

where relief is requested in several differing alternatives, appears to be an issue

of first impression in Texas. In support of its argument that the doctrine applies

even when relief is requested in the alternative, DFPS refers us to five cases:

Georgetown Manor, Inc. v. Ethan Allen, Inc., 991 F.2d 1533, 1540 (11th Cir.

1993);8 Bradley v. State, 2009 Ark. App. 714, at 10, 370 S.W.3d 263, 270 (Ark.




      8
        In Georgetown Manor, a tortious-interference-with-business-relationship
case, the parties agreed to provide the jury with three alternatives for interest
calculation, including one calculated with simple interest. 991 F.2d at 1535,
1540. The court held that the appellant could not complain on appeal that the
jury elected one of those alternatives, based on the doctrine of invited error. Id.
at 1540.

                                        8
Ct. App. 2009);9 Rye v. State, 2009 Ark. App. 839, at 12, 373 S.W.3d 354, 361

(Ark. Ct. App. 2009);10 Junior v. Dezao, No. FM-14-1579-08, 2014 WL 145312, at

*5 (N.J. Super. App. Div. Jan. 16, 2014) (not designated for publication); 11 In re

Marriage of Shoepske, No. 12-2210, 2013 WL 4010286, at *7 (Iowa Ct. App.

Aug. 7, 2013) (not designated for publication).12 None of the five cases are from


      9
       Bradley, a murder and battery case, involved an appellate challenge to an
agreement between the parties made in open court. 2009 Ark. App. 714, at 1,
370 S.W.3d at 266. The defendant asked the trial court for the identity of an
informant or alternatively, that the email containing the informant’s exculpatory
hearsay information be admitted. Id. at 9, 370 S.W.3d at 269–70. The trial court
accepted the email into evidence, and the defendant raised no further complaints
about the informant’s identity until the appeal. Id. at 9–10, 370 S.W.3d at 270.
The appellate court concluded that the defendant had invited the error. Id. at 10–
11, 370 S.W.3d at 270.
      10
         In Rye, a sexual assault case in which the appellant challenged a
stipulation she had made in the trial court as to the unavailability of a witness, the
appellate court held that the appellant could not both request the trial court to
accept the stipulation and claim to the appellate court that it was error for the trial
court to have done so. 2009 Ark. App. 839, at 1, 3, 12, 373 S.W.3d at 355–56,
361.
      11
         In Junior, an appeal of a property settlement agreement containing
alimony two years after divorce, the trial court granted to the appellant the
alternative relief he requested at trial; on appeal, he complained that the trial
court had not made a finding necessary to support granting that relief. 2014 WL
145312, at *1, *5. The appellate court, without discussion, concluded that the
appellant’s contention lacked sufficient merit to warrant discussion, dismissing
the issue by stating, “It suffices to say that any error was invited.” Id. at *5.
      12
         In Schoepske, a post-divorce appeal involving property division, the
parties agreed at trial as to the appropriate alternative relief requested. 2013 WL
4010286, at *1, *6–7. The husband proposed three alternative methods for the
trial court to employ to equalize the debt between the parties upon divorce, the
wife agreed to the first method proposed, and the court applied the agreed-upon
method in ordering the division of the marital estate. Id. at *3, *7. The appellate
court pointed out that under Iowa law, if a party poses his requests for relief in
                                          9
Texas courts, and none purport to apply Texas law. Further, none of the facts in

those five cases bear any resemblance to the facts of this one.13

      Assuming, without deciding, that the invited error doctrine would preclude

an appellant who sought relief in the alternative from complaining on appeal

when the trial court wholly accepted one of the alternatives, it is clear in Texas

law that for a party to be estopped from asserting a position in an appellate court

based on actions it took in the trial court, the party must have “unequivocally

taken a position in the trial court that is clearly adverse to its position on appeal.”

Dep’t of Family & Protective Servs., 273 S.W.3d at 646; see Am. Sav. & Loan

Ass’n v. Musick, 531 S.W.2d 581, 589 (Tex. 1975) (holding that “[o]ne of the

requirements for application of the doctrine of judicial estoppel is that the

statement must be deliberate, clear, and unequivocal”).

      Here, it cannot be said that Father’s position at trial was unequivocal.

Rather, he equivocated at almost every turn.           The relief he sought in his

pleadings did not mirror his stated position in his opening statement; his request

during closing arguments differed from both his pleadings and his testimony at

the alternative, and the court accepts one of the alternatives, the court’s ruling is
not “adverse.” Id. at *7. The appellate court also pointed out that a stipulation of
settlement in a dissolution proceeding stands as a contract between the parties
that becomes final when accepted by the court. Id.
      13
         Of the five cases cited by DFPS, Georgetown Manor is arguably the
closest factually to the case at issue. Yet even Georgetown Manor is
distinguishable from this case because in that case, the appellant clearly
articulated three separate and alternative methods to give to a jury to calculate
damages, each of which would have resulted in a different figure. 991 F.2d at
1540.
                                          10
trial. Indeed, given the ever-changing nature of his stated positions, it would

have been a difficult task for the trial court in this case to have been guided at all

by Father’s expressed desires.

      For the same reasons, it cannot be said that Father’s requests for

alternative relief were clear or that his position at trial was clearly adverse to his

position on appeal. On one point in particular Father was steadfast—his primary

desire was to be named permanent managing conservator of S.T.—and the trial

court did not grant this relief to him. Based on the lack of clarity in Father’s

positions in the trial court as to all remaining alternatives suggested by him

during the course of trial, we cannot say that his position on appeal is barred by

the invited error doctrine.14 Therefore, we decline the State’s invitation to avoid

reaching the merits of Father’s sole issue.




      14
        Nothing in the record suggests that Father’s shifting positions were
deliberate. See Musick, 531 S.W.2d at 589. Nor does it appear to be an attempt
on Father’s part to ambush the trial court, seed the record with error, encourage
the court to take the very action he complains of on appeal, cause the error he
complains of on appeal, or any other evil that this rule of equity is designed to
combat. See Wackenhut Corr. Corp. v. de la Rosa, 305 S.W.3d 594, 624 (Tex.
App.—Corpus Christi 2009, no pet.), abrogated on other grounds by Zorrilla v.
Aypco Constr. II, LLC, 469 S.W.3d 143 (Tex. 2015); see also Dep’t of Family &
Protective Servs., 273 S.W.3d at 646; In re Marriage of Palacios, 358 S.W.3d
662, 664 (Tex. App.—Amarillo 2009, pet. denied) (op. on reh’g); Garcia, 311
S.W.3d at 38.

                                         11
B. Best Interest of the Child

       1. Standard of Review and Applicable Law

       The supreme court has distinguished the standard applicable to

termination of parental rights from that of conservatorship appointments, stating

that

       the quantum of proof required to support a termination decision
       differs from the level necessary to support a conservatorship
       appointment. Termination decisions must be supported by clear and
       convincing evidence.       Due process compels this heightened
       standard because terminating the parent-child relationship imposes
       permanent, irrevocable consequences. On the other hand, 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. These differing proof standards, in turn, affect the method
       of appellate review, which is more stringent for termination decisions
       than for those regarding conservatorship. . . . 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 611, 616 (Tex. 2007) (citations omitted).

       In applying the abuse of discretion standard here, we must first determine

whether the trial court had sufficient evidence upon which to exercise its

discretion and then whether the trial court erred by applying its discretion. In re

M.C.F., 121 S.W.3d 891, 895 (Tex. App.—Fort Worth 2003, no pet.) (citing In re

C.H., 89 S.W.3d 17, 28–29 (Tex. 2002); Seidel v. Seidel, 10 S.W.3d 365, 368

(Tex. App.—Dallas 1999, no pet.)).        Under the abuse-of-discretion standard,

legal and factual insufficiency are not independent grounds for asserting error,

                                         12
but are merely relevant factors in assessing whether a trial court abused its

discretion. In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.).

The evidentiary-sufficiency review is part of the first inquiry. M.C.F., 121 S.W.3d

at 895. After assessing the sufficiency of the evidence, we determine whether,

based on the elicited evidence, the trial court made a reasonable decision. In re

B.P., Jr., No. 02-07-00251-CV, 2008 WL 2639264, at *2 (Tex. App.—Fort Worth

July 3, 2008, no pet.) (mem. op.).

      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence 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

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, “No Evidence” and

“Insufficient Evidence” Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).



                                        13
      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

credible evidence supporting the finding is so weak, or so contrary to the

overwhelming weight of all the evidence, that the answer should be set aside and

a new trial ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986)

(op. on reh’g); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); Garza v. Alviar,

395 S.W.2d 821, 823 (Tex. 1965).

      A trial court abuses its discretion by ruling without supporting evidence.

Ford Motor Co. v. Garcia, 363 S.W.3d 573, 578 (Tex. 2012). But an abuse of

discretion does not occur when the trial court bases its decision on conflicting

evidence and some evidence of substantive and probative character supports its

decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009); Butnaru

v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002) (op. on reh’g).

      A court’s primary consideration in determining the issue of conservatorship

must always be the best interest of the child. Tex. Fam. Code Ann. § 153.002

(West 2014); J.A.J., 243 S.W.3d at 614. Courts may use a nonexhaustive list of

factors to determine the child’s best interest. Holley v. Adams, 544 S.W.2d 367,

371–72 (Tex. 1976); In re T.D.C., 91 S.W.3d 865, 873 (Tex. App.—Fort Worth

2002, pet. denied) (op. on reh’g). Those factors include

      (A)   the desires of the child;



                                        14
      (B) the emotional and physical needs of the child now and in the
      future;

      (C) the emotional and physical danger to the child now and in the
      future;

      (D)    the parental abilities of the individuals seeking custody;

      (E) the programs available to assist these individuals to promote
      the best interest of the child;

      (F)   the plans for the child by these individuals or by the agency
      seeking custody;

      (G)    the stability of the home or proposed placement;

      (H) the acts or omissions of the parent which may indicate that the
      existing parent-child relationship is not a proper one; and

      (I)    any excuse for the acts or omissions of the parent.

Holley, 544 S.W.2d at 371–72 (citations omitted).15


      15
         Statutory factors to be considered in determining the best interest of the
child with regard to the child’s prompt and permanent placement in a safe
environment include (1) the child’s age and physical and mental vulnerabilities;
(2) the frequency and nature of out-of-home placements; (3) the magnitude,
frequency, and circumstances of the harm to the child; (4) whether the child has
been the victim of repeated harm after the initial report and intervention by DFPS;
(5) whether the child is fearful of living in or returning to the child’s home; (6) the
results of psychiatric, psychological, or developmental evaluations of the child,
the child’s parents, other family members, or others who have access to the
child’s home; (7) whether there is a history of abusive or assaultive conduct by
the child’s family or others who have access to the child’s home; (8) whether
there is a history of substance abuse by the child’s family or others who have
access to the child’s home; (9) whether the perpetrator of the harm to the child is
identified; (10) the willingness and ability of the child’s family to seek out, accept,
and complete counseling services and to cooperate with and facilitate an
appropriate agency’s close supervision; (11) the willingness and ability of the
child’s family to effect positive environmental and personal changes within a
reasonable period of time; (12) whether the child’s family demonstrates adequate
parenting skills, including providing the child and other children under the family’s
                                          15
      Further, as pointed out by Father, there is a rebuttable presumption that

appointment of a parent as managing conservator is in the child’s best interest.

Tex. Fam. Code Ann. § 153.131 (West 2014). Section 153.131(a) provides,

      Subject to the prohibition in Section 153.004,[16] 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.

Id. § 153.131(a) (emphasis added); see In re V.L.K., 24 S.W.3d 338, 341–42

(Tex. 2000) (stating that under family code chapter 153, a nonparent can rebut



care with: (A) minimally adequate health and nutritional care; (B) care,
nurturance, and appropriate discipline consistent with the child’s physical and
psychological development; (C) guidance and supervision consistent with the
child’s safety; (D) a safe physical home environment; (E) protection from
repeated exposure to violence even though the violence may not be directed at
the child; and (F) an understanding of the child’s needs and capabilities; and (13)
whether an adequate social support system consisting of an extended family and
friends is available to the child. Tex. Fam. Code Ann. § 263.307(b) (West Supp.
2015) (listing factors in determining best interest of child in review of placement
of children under DFPS’s care).
      16
         Section 153.004 provides that in determining whether to appoint a party
as a sole or joint managing conservator, the court shall consider evidence of the
intentional use of abusive physical force or evidence of sexual abuse by a party
directed against the party’s spouse, a parent of the child, or any person younger
than 18 years of age committed within a two year-period preceding the filing of
the suit or during the pendency of the suit. Tex. Fam. Code Ann. § 153.004(a)
(West 2014). Further, the statute requires that if credible evidence is presented
of a history or pattern of past or present child neglect or abuse by one parent
against the other, a spouse, or a child, the court may not appoint the parties as
joint managing conservators and shall consider the commission of family
violence or sexual abuse in determining whether to deny, restrict, or limit
possession of the child by a parent who is appointed as a possessory
conservator. Id. § 153.004(b)–(c).

                                        16
the parental presumption by showing that appointment of the parent would

significantly impair the child’s health or development).17           The parental

presumption in section 153.131 “is based upon the natural affection usually

flowing between parent and child.” V.L.K., 24 S.W.3d at 341.

      The supreme court discussed the “significantly impair” standard in

Lewelling v. Lewelling, and held that nonparents seeking custody must identify

some act or omission committed by the parent that demonstrates that naming

him as managing conservator will significantly impair the child’s physical health

or emotional development. 796 S.W.2d 164, 167–68 (Tex. 1990). The court

stated that the fact that a parent may be unemployed or live in crowded

conditions is not enough to show significant impairment, nor are two visits to a

mental health hospital when there is no showing of mental problems or evidence

that the parent is a victim of spousal abuse. Id. at 167 (holding evidence did not

show significant impairment in custody battle between mother and paternal

grandparents); see also In re K.R.B., No. 02-10-00021-CV, 2010 WL 3928727, at

*4 (Tex. App.—Fort Worth Oct. 7, 2010, no pet.) (mem. op.) (“Impairment must

be proved by a preponderance of the evidence indicating that some specific,

identifiable behavior or conduct of the parent, demonstrated by specific acts or


      17
        A finding of a history of family violence involving the child’s parents is
another way to rebut the presumption, as is the parent’s voluntary relinquishment
of actual care, control, and possession of the child to a nonparent, licensed child-
placing agency, or DFPS for a period of one year or more. See Tex. Fam. Code
Ann. §§ 153.131(b), .373 (West 2014).

                                        17
omissions of the parent, will probably cause that harm.”). In contrast, conduct

from two or three years before plus other evidence of more recent conduct—

failure to visit the child and inconsistent communication with the child—as well as

evidence of the child’s bond with his foster parents in a stable environment, in

which he had been placed because of the parent’s acts and omissions,

constitutes some evidence to support finding significant impairment to the child’s

physical health or emotional development if the child were placed back in the

parent’s custody.     Danet v. Bhan, 436 S.W.3d 793, 797–98 (Tex. 2014)

(remanding case to consider factual sufficiency).

      Acts or omissions that constitute significant impairment include, but are not

limited to, physical abuse, severe neglect, abandonment, drug or alcohol abuse,

or immoral behavior by the parent.       K.R.B., 2010 WL 3928727, at *5.        The

material time to consider is the present, and evidence of past conduct may not,

by itself, be sufficient to show present unfitness. Id. at *11 (holding that although

mother’s past criminal conduct and drug use were relevant, they did not

demonstrate that appointing her managing conservator around twenty months

later, after she had tested negative on multiple drug tests, would significantly

impact the child’s physical health or emotional development); In re S.W.H., 72

S.W.3d 772, 778–79 (Tex. App.—Fort Worth 2002, no pet.) (stating that none of

the evidence regarding appellant’s actions more than four years ago showed that

appointing her the child’s managing conservator at present would significantly

impair the child’s physical health or emotional development when it was

                                         18
uncontroverted that she had remained clean and sober since she entered drug

treatment and there was uncontroverted evidence that she had maintained

steady employment, had a safe and stable home environment, and had bonded

with the child during visitations since her release from treatment).

      Other considerations may include parental irresponsibility, a history of

mental disorders and suicidal thoughts, frequent moves, bad judgment, child

abandonment, and an unstable, disorganized, and chaotic lifestyle that has put

and will continue to put the child at risk. In re R.R., No. 02-13-00464-CV, 2014

WL 3953930, at *3 (Tex. App.—Fort Worth Aug. 14, 2014, no pet.) (mem. op.);

see also In re De La Pena, 999 S.W.2d 521, 528 (Tex. App.—El Paso 1999, no

pet.) (“Developing case law has indicated certain acts or omissions which would

demonstrate significant impairment of the child, such as physical abuse, severe

neglect, drug or alcohol abuse, or immoral behavior on the part of the parent.”).

Likewise, the parent’s treatment of other children may be relevant. See In re

S.D., No. 02-14-00171-CV, 2014 WL 6493783, at *15 (Tex. App.—Fort Worth

Nov. 20, 2014, no pet.) (mem. op.) (stating that the trial court could have had

legitimate concerns regarding appellant’s involvement in or ability to have

prevented older child’s death given the length of his relationship with the child’s

mother, the fact that he had “supervised” her children before, and the presence

of older scars on the deceased child). The 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. In re B.P., Jr., 2008 WL 2639264, at *2, *5.

                                         19
      2. Evidence

      During the two-part hearing that began on May 11, 2015, Denise Hamilton,

S.T.’s CPS conservatorship worker, testified that S.T. had lived with her foster

family since her birth in November 2013 and was very bonded to her foster

family.18 By May 2015, S.T. was walking, climbing, and learning to talk. The trial

court took judicial notice of the CASA report, which stated that the eighteen-

month-old child was a happy, healthy, and lively child who could talk in short

phrases and loved to dance and run.

           a. Father’s Family Service Plan

      Between January 13, 2015, when Hamilton first spoke with Father about

his service plan, and May 11, 2015, Father had completed all but two of his

services—he had consistently attended his two-hour visits with S.T. every other

week and was appropriate with the child during those visits according to

Hamilton,19 had adequate housing, transportation,20 and income,21 and only had


      18
         S.T.’s foster mother testified that S.T. was nine days old when she came
into the foster family’s home and that she weighed only four pounds, one ounce
at that time. S.T. spent nine days in a neonatal intensive care unit before she
was released to the foster family.
      19
         Hamilton had seen Father change S.T.’s diaper, and she said that he
brought S.T. gifts and food. Father said he had brought toys, snacks, clothing,
and books to the visits and that he and S.T. would read books, talk, laugh, hug,
kiss, and play with the toys. S.T.’s younger sibling, who had also been removed
from S.T.’s mother but who was not Father’s child, sometimes joined S.T. at the
visits, and Father was appropriate with both children.

                                       20
his counseling and parenting classes left to complete.       Father completed his

parenting classes between the first portion of the hearing and second portion

nine days later; he was still attending individual counseling by the second portion

of the hearing.

      P.T. said that she had seen S.T. with Father and that based on what she

had seen, he had demonstrated appropriate parenting skills with the child.

Nevertheless, she testified that she preferred that his visits be supervised. S.T.’s

foster mother testified that she took S.T. to and from visitation and had observed

nine or ten of S.T.’s visits with Father. She stated,

            My concern with him is I’ve noticed he does interact with her,
      but he doesn’t know how to console her. And whenever she gets --
      she’s not the easiest baby. She -- you know, she’s been exposed to
      drugs and alcohol, and she -- when she gets upset, she gets, you
      know, easily upset. So, you know, you need to know how to calm
      her down. And I can see he gets easily frustrated with that.

              The way he shows that is by, you know, being more
      controlling. Instead of just allowing himself to put her down, he’s
      very possessive and controlling with her. And that’s concerning to
      me because I’ve seen -- at one visit I noticed that he wasn’t able to
      console her and he just kept doing it, and he was getting even more
      irritated. So I went over and asked him is it okay if I, you know, take
      her and get her consoled, you know, for you. Is that okay? So he
      kind of paused a little bit and then handed her to me. She was fine

      20
         Father drove himself to his visits with S.T. and lived in a three-bedroom
furnished house that Hamilton said was appropriate for an eighteen-month-old
child and that Father described as clean and tidy. Father said that he had a car
seat for the child and had a bedroom set up for S.T. at his house. Father’s house
was owned by his father; Father paid only the property taxes.
      21
       Father received between $2,700 and $3,095 per month from the
Department of Veterans Affairs (VA).

                                         21
      after I got her. But as soon as I wanted to put her -- you know, hand
      her back over, she was not having it.

      Terica Brager, the CPS supervisor on the case, testified that CPS had

continuing concerns about Father’s ability to parent, and Hamilton testified that it

was not in S.T.’s best interest to name Father as a managing or possessory

conservator because he had not yet completed his service plan and because of

CPS’s concerns about his criminal history. Hamilton acknowledged that it was

extraordinary that Father had completed almost everything on his service plan

during the five months that he had been involved in the case.

         b. Father’s Criminal History

      No certified copies of Father’s convictions were offered or admitted into

evidence, but some evidence was elicited at trial regarding his criminal history,

primarily from Father himself.

      With regard to the possession-of-heroin conviction for which he was on

parole at the time of the May 2015 hearing, Father denied that he had used or

sold the heroin but agreed that he had pleaded guilty to the charge. He also

admitted to previously having been to jail for theft and to having been charged

with two driving-while-intoxicated offenses.    He stated that his burglary-of-a-

habitation charge was dropped down to criminal trespass.

      Father acknowledged that he had three assault convictions, and Hamilton

testified that two of the assault-bodily injury convictions had occurred since 2010.

Father described himself as “very generous, loving, kind,” and testified that the


                                        22
three assaults in his criminal history were self-defense-related.22        He denied

having ever hit S.T.’s mother, and S.T.’s mother denied that Father had ever hit

her, pushed her, or assaulted her or that she had ever seen him assault anyone

else.

        S.T.’s mother testified that she did not believe S.T. should be placed with

Father and that his visits with her should be supervised because it seemed to her

that he had an “anger problem.”23 Father denied having an anger problem but

pointed out that he had voluntarily taken and successfully completed an anger

management class, even though CPS did not ask him to do so.24

        Father started receiving his veteran’s benefits in 1993 and his criminal

convictions started accruing in 1996; he admitted that he committed theft of


        22
        Father said that his oldest daughter’s mother had been the complainant
in one of his assault cases, a girlfriend had been the complainant in the second
assault case, and an unrelated female had been the complainant in the third
case. One of the women needed medical care because “[s]he swung and [he]
blocked her punch and then she broke her wrist or something like that.”
        23
         S.T.’s mother elaborated by saying she thought Father had an anger
problem “[b]ecause sometimes when [she] was staying with him he would holler.”
She said that she did not think it would be good for S.T. to be around someone
that hollered.
        24
         Hamilton testified that Father had volunteered for the anger management
class and had provided her with a certificate for it; he told her that it resulted in a
recommendation for a psychological or psychiatric evaluation but that he did not
think it was necessary because he had volunteered for the class. Hamilton said
that it concerned her that he was not willing to take an evaluation. The record
does not reflect that an anger management course or a psychological or
psychiatric evaluation were ever made part of Father’s service plan
requirements.

                                          23
property while he was collecting his benefits. His criminal history overlapped with

his drug history, leading to an earlier possession charge involving drug

paraphernalia containing crack cocaine, which Father admitted was his.

           c. Father’s Drug History

      Father said that he used crack cocaine between 1996 and 2003 and that

between 2000 and 2003, he had had relationships with people who used drugs.

      Father testified that he began a dating relationship with S.T.’s mother while

she was taking CPS classes after her second son was born.25 Their relationship

lasted until around March 2014, when Father was incarcerated for possession of

heroin. Father denied that he knew S.T.’s mother was using drugs while they

were dating or while she was pregnant with S.T. Father denied having ever

given S.T.’s mother any pills or other substances.

      S.T.’s mother admitted to having used drugs during her pregnancy and up

to the date of S.T.’s birth in November 2013. She said that Father knew she was

using drugs when they dated and that although he did not use drugs with her, he

had provided drugs to her, specifically, crack cocaine. S.T.’s mother said that

Father did not provide her with drugs after he learned she was pregnant, but she

also said that Father knew that she continued to use drugs while pregnant.

Hamilton said that S.T.’s mother told her that Father had supplied her with drugs,

although S.T.’s mother denied having told CPS that Father gave her drugs.

      25
       S.T.’s mother’s second son was born in January 2013; he and S.T.’s
mother’s oldest child both lived with S.T.’s great-grandmother.

                                        24
Brager stated that DFPS’s concern had not been that Father was using drugs but

that he had perhaps provided them to others.

           d. Father’s CPS History

      Brager testified that CPS’s continuing concerns about Father’s ability to

parent stemmed from his having been the father in another case in her unit and

in an earlier CPS case and the fact that the three children of Father’s that she

knew about, including S.T., were not in Father’s care, custody, and control.

Brager stated that in the previous case in her unit, the child was removed

because (like S.T.), she and her mother had tested positive to drugs at the child’s

birth, and the child was placed with a fictive kin26 caregiver who was a friend of

the child’s mother. Father did not have any contact with the child prior to the

child’s removal from her mother.

      Father acknowledged that CPS had been involved in the lives of all three

of his children, giving rise to CPS’s continuing concerns about his ability to

parent. He said that his parents were the temporary managing conservators of

his eight-year-old daughter but that he could change those arrangements. He

had every-other-week supervised visitation with this child, who lived with his

parents because at the time of her placement in March 2014, Father was on his

      26
        A “fictive kin” is an unrelated person with a long-standing and significant
relationship with the child. In re V.U., No. 07-13-00243-CV, 2013 WL 6255694,
at *1 (Tex. App.—Amarillo Nov. 20, 2013, no pet.) (mem. op.); Melton v. Tex.
Dep’t of Family & Protective Servs., No. 03-08-00168-CV, 2010 WL 668917, at
*9, *10 (Tex. App.—Austin Feb. 25, 2010, no pet.) (mem. op.); see also Tex.
Fam. Code Ann. § 264.751 (West 2014).

                                        25
way to jail.27 His three-year-old daughter, who he had not seen since December

2012 or 2013, lived in Dallas.    Father said that the middle child’s managing

conservator had not complied with the visitation arrangements but that he had

not filed an enforcement action to enforce visitation. No additional evidence was

offered regarding the facts and circumstances of CPS’s involvement with either

of Father’s other two children.

           e. Father’s Mental Health

      Father had been diagnosed with schizophrenia and had been discharged

from the Army with a 100% mental health disability award. Although Hamilton

testified that she had concerns about Father’s compliance with his schizophrenia

medication, Father said that the VA had prescribed medication for him to treat his

schizophrenia and that he took his medication as prescribed.        Father further

testified that the medication prevented schizophrenia symptoms such as

insomnia and hallucinations.

      Father said that he had taken psychiatric evaluations in 2001, 2002, and

2004 through the Tarrant County criminal district attorney’s office, in addition to

the routine annual psychiatric evaluations with the VA.28 No VA records or other

records regarding Father’s mental health were offered or admitted into evidence.

      27
      Father did not clearly recall how old the child had been when she was
removed by CPS, alternatively stating ages four, six, and eight.
      28
        Father said that he had to have the annual evaluations with the VA
because of his diagnosis and his medication. He had been receiving mental
health benefits from the VA since 1993.

                                        26
            f. Best Interest Recommendations

       According to Hamilton, DFPS’s recommendation was for Father to

continue with supervised visitation and to complete his counseling. Hamilton

testified that it was in S.T.’s best interest to name P.T. as her possessory

conservator because P.T., as the child’s maternal grandmother,29 would be an

appropriate relative caregiver, had moved into a suitable environment for the

child, and had sufficient resources to take care of the child. Brager testified that

P.T. had an appropriate place to live, had stable employment, and had a support

system to meet S.T.’s needs and that DFPS’s ultimate permanency plan was to

grant P.T. permanent managing conservatorship of the child.          Hamilton and

Brager explained that DFPS’s retaining managing conservatorship would give

P.T. the opportunity to participate in the foster program so that she could receive

financial help in taking care of the child and S.T. could receive free state college

tuition.    Brager also stated that with P.T. as possessory conservator, DFPS

would have time to monitor the placement.

       P.T. testified that she wanted the child with her and that she believed it

was in S.T.’s best interest to live with her because she wanted the child to know

       29
         The legislature’s preference is that children removed by DFPS be placed
with relatives. See, e.g., Tex. Fam. Code Ann. § 262.114(a-2) (West 2014)
(requiring DFPS to file a statement with the court to explain why the child has not
been placed with a relative and the actions DFPS is taking to place the child with
a relative). P.T. testified that she worked as a laboratory technician at the
hospital where S.T. was in intensive care at birth but that she had not been
allowed to go up to the nursery when she had influenza, and the child had been
taken into foster care by the time she was able to enter the ICU.

                                        27
her siblings and extended family. Although S.T. had lived with her foster family

since birth, P.T. believed that because of her young age, S.T. would adapt

quickly. P.T. testified that she and her ex-husband, S.T.’s maternal grandfather,

would provide financially for S.T. S.T.’s mother also asked that the child be

placed with P.T.,30 and Father said he did not have any concerns about S.T.

being placed with P.T. and that she would be his second pick after himself as

placement for the child.31

      The CASA report reflected that neither parent’s attorney had allowed the

CASA worker to have any contact with them. CASA recommended terminating

the parents’ rights to S.T.; alternatively, if the trial court could not find cause to

free the child for adoption, then it recommended permanent managing

conservatorship to DFPS for more time to consider the child’s placement options.

CASA also recommended that the trial court deny the parents’ requests for

possessory conservatorship.




      30
        At the time of the May 2015 hearing, S.T.’s mother had another open
CPS case involving her two-month-old child. She had also used drugs while
pregnant with this younger child but had been “clean” for four or five months by
the time of the May 2015 hearing. S.T.’s mother, who was still working the steps
of her sobriety plan, agreed that her visits with S.T. should continue to be
supervised.
      31
        Father’s testimony in this regard conflicts with a letter that he wrote to
CPS earlier in the year in which he made bizarre allegations about a sexual
relationship between P.T. and S.T.’s mother.

                                         28
      3. Analysis

      There was no evidence regarding the child’s desires, and any concerns

about stability for the child by uprooting her from her foster family were

apparently not a factor in the trial court’s determination to place her with her

maternal grandmother. However, there was some evidence that Father had a

history of assaultive conduct and substance abuse and that he could become

frustrated with the child. Although he denied the allegation, there was some

evidence that Father had provided S.T.’s mother with drugs prior to her

pregnancy, as well as evidence that he had possessed drugs, resulting in his

recent criminal conviction. The trial court could have also questioned whether

two-hour visits with the eighteen-month-old child every other week for five

months was sufficient to determine whether Father had the necessary skills and

abilities to handle the day-to-day management of such a young child, particularly

in light of the fact that none of Father’s other children lived with him and that he

had had CPS cases involving all of them. And the trial court could have found

that Father’s schizophrenia was a continuing concern, particularly in light of all of

the above.    Therefore, we conclude that there is a more than a scintilla of

evidence to support the trial court’s determination that appointing Father as

S.T.’s managing conservator would not be in her best interest because the

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

development. See Tex. Fam. Code Ann. § 153.131(a). We overrule the legal-

sufficiency portion of Father’s sole issue.

                                         29
      We nonetheless conclude that the evidence is factually insufficient in light

of the deficiencies in the record referenced in our factual recitation above.

Although the record shows that Father was involved in previous CPS cases

involving his older children, no specific information about Father’s acts or

omissions regarding those children appears in the record. Cf. id. § 263.307(b);

S.D., 2014 WL 6493783, at *15. The evidence in this record reflects that Father

had an appropriate house and income appropriate for the child’s care and had

completed his parenting classes by the second portion of the hearing. Other

than DFPS’s expressed desire for Father to finish his service plan, no one

testified about any parental skills that Father lacked because of his failure to

finish the counseling requirement—the only remaining service that he had to

complete.

      While Father had a history of substance abuse and criminal activities,

nothing in the record showed that he had engaged in either since being released

on parole, and, furthermore, Brager testified that use of drugs was not one of

DFPS’s concerns. While there was testimony that Father had schizophrenia, no

evidence was offered or admitted to explain DFPS’s speculation that he might

not be compliant with his medication. As S.T. was removed from her mother at

birth, there was no evidence offered or admitted to show that Father had

abandoned S.T. Cf. R.R., 2014 WL 3953930, at *3–4 (upholding trial court’s

determination when the evidence showed that the mother had a history of mental

disorders, suicidal thoughts, postpartum depression, unemployment, frequent

                                       30
moves, rarely took care of the child when the child lived with her, tried to give the

child to acquaintances, and after voluntarily transferring her parental rights, never

tried to visit the child or otherwise stay involved in his life and did not take any

parenting classes); B.P., Jr., 2008 WL 2639264, at *1–2, *5–6 (holding that the

trial court did not abuse its discretion by concluding that appointing mother as

child’s managing conservator would significantly impair the child’s physical and

emotional development when mother failed to follow her service plan, missed

several visits, and lacked stable employment, and child had extreme need for

structure and stability because of his bipolar disorder and other mental health

problems).

      As set out above, the credible evidence in the record is too weak to

overcome the presumption in favor of Father’s appointment as managing

conservator as in the child’s best interest and is therefore factually insufficient to

support a finding that appointing Father as S.T.’s managing conservator would

significantly impair S.T.’s physical health or emotional development. See Tex.

Fam. Code Ann. § 153.131(a). Therefore, because the trial court did not have

factually sufficient evidence upon which to exercise its discretion, we sustain this

portion of Father’s sole issue.

                                  IV. Conclusion

      Having sustained part of Father’s sole issue, we reverse the trial court’s

judgment and remand the case for a new trial so that the parties can more fully

develop the record.

                                         31
                                           /s/ Bonnie Sudderth
                                           BONNIE SUDDERTH
                                           JUSTICE


PANEL: DAUPHINOT, GARDNER, and SUDDERTH, JJ.

DAUPHINOT, J., dissents without opinion.

DELIVERED: December 17, 2015




                                     32
