                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH


                               NO. 2-07-445-CV


IN THE INTEREST OF L.A.F.,
A CHILD

                                    ------------

             FROM THE 271ST DISTRICT COURT OF WISE COUNTY

                                    ------------

                         MEMORANDUM OPINION 1

                                    ------------

      Mark (Father) and Christina (Mother) married and had a daughter, L.A.F.,

born in June 1998. L.A.F. has Downs Syndrome. When L.A.F. was almost

three years old, Father and Mother divorced. L.A.F. lived with Mother. Father

filed a petition to modify the parent-child relationship in January 2005, which

was transferred to Wise County and assigned Cause No. 05-02-102. Agreed

temporary orders signed in February 2005 left L.A.F. primarily in the care of

Mother but allowed Father greater possession than a standard possession order.


      1
          … See Tex. R. App. P. 47.4.
Father died in November 2006; the case was still pending. L.A.F.’s paternal

grandmother, Cleta (Grandmother), filed a petition to intervene in Cause No. 05-

02-102 as well as an original petition in suit affecting the parent-child

relationship (SAPCR) almost three weeks after Father’s death. Grandmother’s

SAPCR was assigned Cause No. 06-11-881.           In December 2006, Father’s

widow, Donna (Stepmother), filed a petition to intervene in the modification suit

and L.A.F.’s paternal grandfather, Jeff (Grandfather), and his wife filed a

petition to intervene in Grandmother’s SAPCR.

      The final order in the modification suit was signed on March 13, 2007.

On that same day, Grandmother’s SAPCR was consolidated with Cause No. 05-

02-102. After a bench trial in the SAPCR, the trial court named Mother and

Grandmother joint managing conservators of L.A.F. and gave Grandmother the

exclusive right to designate L.A.F.’s primary residence. The SAPCR order was

signed November 19, 2007.

      In two points, Mother challenges Grandmother’s standing to seek

managing conservatorship and the trial court’s order awarding Grandmother

joint managing conservatorship and appears to challenge the standing of

Grandfather, who was named a possessory conservator in the final orders of

both the modification suit and the SAPCR. Because we hold that Grandfather’s

possessory rights stem from an agreed final order that was not appealed; that

                                       2
Grandmother established standing to file an original suit seeking managing

conservatorship; and that, on this record, we cannot conclude that the trial

court abused its discretion in naming her joint managing conservator with the

exclusive right to establish L.A.F.’s primary residence, we affirm the trial

court’s judgment.

      In her second point, Mother argues that “Appellees” lack standing. A

party’s standing to pursue a claim is an issue of law that we review de novo. 2

To the extent that Mother’s second point pertains to Grandfather, the final

order in the modification suit states that on December 11, 2006, the parties

(Stepmother, Grandmother, Grandfather, and Mother) dictated an agreement

into the record. As part of the agreement, Grandmother withdrew her petition

to intervene in the modification suit.       Mother was appointed a parent sole

managing conservator with the exclusive right to designate L.A.F.’s primary

residence, and Stepmother and Grandfather were appointed nonparent

possessory conservators and awarded possession of L.A.F. according to a

possession schedule.     The order specifically provides that Grandmother

“currently has pending a [SAPCR] involving the same child of this proceeding,

but that such suit is independent of this cause of action and is not affected by



      2
       … Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998),
cert. denied, 526 U.S. 1144 (1999).

                                         3
this cause of action.” The final order in the modification suit was signed on

March 13, 2007, and was not appealed.

      Mother does not argue that the March 2007 order in the modification suit

was not final and appealable. Instead, she argues that the modification suit

should have been dismissed or abated after Father died because of that death

and that there was no viable suit after Father’s death. There is no indication

in the record that she sought such dismissal or abatement from the trial court

on that ground.       Additionally, as the case Mother relies on, Smelscer v.

Smelscer, 3 points out,

      Once a trial court in which parties initiate divorce proceedings thus
      acquires jurisdiction over the minor children of the marriage and
      enters temporary orders concerning their custody, such orders
      survive any subsequent dismissal of the underlying divorce action
      and continue in effect until a court of competent jurisdiction
      modifies them or provides for permanent custody of the children.
      . . . [A] trial court’s jurisdiction over minor children is “sticky” and
      is a product of the continuing need to act, or to at least be able to
      act, in the best interest of the children. 4

The trial court here had entered a temporary order before Father died. Finally,

to the extent that Mother is implicitly arguing that the March 2007 order in the




      3
          … 901 S.W.2d 708 (Tex. App.—El Paso 1995, no writ).
      4
          … Id. at 711 n.4 (citations omitted).

                                          4
modification suit is void, we note that she failed to appeal this final order

directly.5 This attack is therefore collateral:

      There is no set procedure for a collateral attack and no statute of
      limitations. A collateral attack may be used to set aside a judgment
      that is void or involves fundamental error. However, the ability to
      collaterally attack a judgment is limited because we presume the
      validity of the judgment under attack, and extrinsic evidence may
      not be used to establish a lack of jurisdiction. To prevail on a
      collateral attack, the challenger must show that the judgment is
      void on its face. A collateral attack fails if the judgment contains
      jurisdictional recitals, even if other parts of the record show a lack
      of jurisdiction. 6

The March 13, 2007 final order in the modification suit provides, “The Court,

after examining the record and the evidence and argument of counsel, finds

that it has jurisdiction of this case and of all the parties and that no other court

has continuing, exclusive jurisdiction of this case.” The order also provides,

            Respondent, [Mother], appeared in person and through
      attorney of record . . . and announced ready for trial.

              ....

            The Court finds that the parties have entered into an
      agreement regarding this final order and that the agreement is in
      the best interest of the child. IT IS ORDERED that the agreed final
      order, as dictated into the record of this Court, is accepted by the
      Court and is made this Court’s Order.


      5
          … See Tex. R. App. P. 26.1(b).
      6
       … In re A.G.G., 267 S.W.3d 165, 169 (Tex. App.—San Antonio 2008,
pet. denied) (citations omitted); see also In re J.W.L., 291 S.W.3d 79, 84 (Tex.
App.—Fort Worth 2009, orig. proceeding).

                                           5
The order names Grandfather a non-parent possessory conservator, gives him

certain rights and duties, and awards him possession of L.A.F. for one overnight

visit each month and for a week in the summer. Mother does not challenge the

jurisdictional recitations or her agreement to this order. Accordingly, we hold

that the trial court did not err by later awarding Grandfather, who was already

a possessory conservator under the modification order, almost identical rights

in the November 2007 SAPCR order.

      To the extent that Mother challenges Grandmother’s standing to bring

and maintain the SAPCR, we agree with Grandmother that she established such

standing under section 102.004 of the family code. Section 102.004(a)(1)

provides that grandparents (among others) may file an original SAPCR “if there

is satisfactory proof to the court that . . . the order requested is necessary

because the child’s present circumstances would significantly impair the child’s

physical health or emotional development.” 7      Attached to Grandmother’s

response to Mother’s motion for summary judgment and incorporated in

Grandmother’s response to Mother’s motion to dismiss are several exhibits that

reveal the following:

•     In June 2007, Mother saw Robert Farias walking on the road and gave
      him a ride to an Exxon gas station at the intersection of U.S. 81/287 and



      7
          … Tex. Fam. Code Ann. § 102.004(a)(1) (Vernon Supp. 2009).

                                       6
    Farm Road 51 in Decatur. Estranged husband Ruben aka Leonardo
    DeLuna was working across the street and spotted them. He then came
    over and argued with them. Farias got out of the vehicle, and DeLuna
    stabbed him in the back with a pocket knife;

•   In her May 2007 deposition, Mother stated that she and DeLuna had
    been back together since December 2006, that she thought that they
    would be together from then on, and that she planned for him to continue
    to be a part of the household, a part of the child rearing, and a part of
    L.A.F.’s life;

•   The police were called to Mother’s home in January 2007 because she
    and her estranged husband DeLuna fought over either Mother’s continued
    contact with her boyfriend Farias or Mother’s not keeping DeLuna’s
    children away from Farias despite her having filed several police reports
    regarding his conduct;

•   On December 18, 2006, Mother reported that Farias had been calling her
    house and harassing her, calling more than 100 times in twenty-four
    hours. She stated that she was afraid of him, that he was supposed to
    be on lithium, that he supposedly had not taken it for several days, that
    he was mentally unstable, and that “there was no telling what he would
    do.” She stated that she had been notified on December 16, 2006 that
    he had tried to kill himself by cutting his throat and that in his calls to
    her, he had threatened to kill DeLuna and her;

•   While Farias was confined in jail from March 2006 until August 4, 2006,
    Mother and the children regularly visited him twice a week. While Farias
    was confined in jail from November 10, 2006, to December 16, 2006,
    Mother visited him twice;

•   On November 9, 2006, Farias was arrested for public intoxication,
    fraudulent possession of identifying information, failure to identify as a
    fugitive, failure to appear, and littering;

•   On August 18, 2006, Farias was arrested for public intoxication and
    failure to maintain financial responsibility, and on August 26, 2006, after
    Farias was released from jail, the police were called because Farias and



                                     7
    Mother got into a verbal battle while driving down the road—a four-year-
    old girl was in the car with them;

•   Farias was arrested on March 27, 2006, after a report of a domestic
    disturbance in the home and charged with assault on a public servant,
    evading arrest, resisting arrest, two counts of criminal mischief, and
    violating probation. He had thrown a satellite dish through the window
    of Mother’s parents’ residence during a fight with her. After his arrest,
    he kicked out the rear driver side window of a patrol unit. In her
    interview with the police, Mother stated that “Farias is not supposed to
    be at the residence, he does not live there and has no belongings at the
    residence.” She also stated that he “is a heroin addict” and was “using
    Ice” that night. She said that he had threatened her brother with a knife
    and had assaulted her. She was afraid for her safety and the safety of
    her children. As Mother tried to escape with her children in her sister’s
    car, with her sister driving, Farias grabbed the passenger side mirror. He
    fell off after the sister kept driving at Mother’s instruction;

•   On March 6, 2006, Mother called to report that Farias took 8 Tylenol 3
    pills the night before and some hydrocodone tablets on the morning of
    March 6, and he then took all the medicine in her medicine cabinet that
    evening. She reported that after he started talking and acting crazy, she
    took her four children to her mother’s house;

•   In February 2006, the police came to the home after 911 calls from
    Mother and Farias during a fight. By the time the police arrived, the fight
    had ended;

•   On December 18, 2005, Farias was arrested for resisting arrest at the
    home after barricading himself in with a golf club following a
    disagreement with Mother. Mother’s father, Mr. Harwell, reported that
    Farias had left the home sometime before Thanksgiving after he
    threatened some family members with a box cutter. When Mother could
    not get Farias to leave the home on December 18, 2005, she went to her
    father for help;

•   In November 2005, Mother reported that Farias had threatened her and
    thrown clothes, had left, and had returned with a knife (but her brother
    had a gun) and had left again. Mother reported that Farias had been

                                     8
     drinking, had started acting strangely, had quoted scripture but had then
     begun “talking about an alternative dimension filled with demons,” and
     had screamed “that they all were demons and that they were evil.” He
     then went to get more beer. After he returned, Mother’s mother told him
     that he needed to leave. He gathered his clothes, threw them at Mother,
     and started flicking his lighter in the air and towards his shirt. Only at
     that point did Mother gather her children and take them next door to her
     parents’ house;

•    In July 2005, Mother called to report that DeLuna had been on drugs for
     the past two years, that he was acting strangely and paranoid and saying
     that someone was going to die, and that two people came by the house
     to buy drugs that day. She claimed that she did not know if he was
     selling drugs and was staying next door at her parents’ house with the
     kids. A few hours after that call, she reported a family disturbance,
     stating that DeLuna was on drugs and alcohol and would hurt “them.”
     The dispatch officer could hear the children crying. Mother reported that
     she locked herself and the children in the bathroom, ostensibly to get
     away from DeLuna.

•    DeLuna was arrested on December 28, 2003, for a domestic violence
     incident against Mother in the children’s presence, and he was arrested
     in April 2004 for a terroristic threat—he and Mother had argued about his
     “drug problem,” and he had threatened Mother with a crowbar after she
     told him to leave the home and he could not find his keys. At the time,
     she reported that he was “on ice and all strung out and high.” She also
     reported that he had retrieved some drug paraphernalia from an
     outbuilding when he was attempting to leave.

     Based on the above evidence, we agree with the trial court’s conclusion

that Grandmother established standing to bring and maintain the SAPCR. 8 We

overrule Mother’s second point.




     8
      … See id.; In re Pharis, No. 12-06-00350-CV, 2006 WL 3735107, at
*1–3 (Tex. App.—Tyler Dec. 20, 2006, orig. proceeding) (mem. op.).

                                      9
      In her first point, Mother contends that Grandmother did not establish

that L.A.F.’s present circumstances would significantly impair her physical

health or emotional development. Section 153.131 of the family code provides

in relevant part that “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 . . . of the child” and

that “[i]t is a rebuttable presumption that the appointment of the parents of a

child as joint managing conservators is in the best interest of the child.” 9 As

this court has already explained,

            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 omissions
      of the parent, will probably cause that harm. This is a heavy
      burden that is not satisfied by merely showing that the non-parent
      would be a better custodian of the child. “Close calls” should be
      decided in favor of the parent.

             Evidence of past misconduct is not alone sufficient to show
      present unfitness. If the parent is presently a suitable person to
      have custody, the fact that there was a time in the past when the
      parent would not have been a proper person to have such custody
      is not controlling. 10


      9
          … See Tex. Fam. Code Ann. § 153.131 (Vernon 2008).
      10
       … Critz v. Critz, No. 02-08-00015-CV, 2009 WL 2972619, at *6 (Tex.
App.—Fort Worth Sept. 17, 2009, no pet. h.) (citations and quotation marks
omitted).

                                      10
However, an adult’s future conduct may be determined in part by her recent

past conduct, and specific acts or omissions of a parent that would likely cause

significant impairment to her child’s health or emotional development may be

inferred from direct evidence. 11

      The trial court found the following:

                     Findings of Fact – Conservatorship 12

      1.    This . . . matter involves the interest of the following child
            under the age of eighteen years:

                   Name:             L.A.F.
                   Sex:              Female
                   Birth date:       06/08/98

      2.    L.A.F. is a special needs child who is afflicted with Downs
            Syndrome.

      3.    Grandmother is the paternal grandmother of L.A.F. and the
            mother of Father.

      4.    Mother is the mother of L.A.F.

      5.    Grandmother filed an Original [SAPCR] on November 22,
            2006. It was subsequently consolidated into the above
            styled matter, which had previously been a custody matter
            between Father and Mother.




      11
       … In re K.R.P., 80 S.W.3d 669, 677 (Tex. App.—Houston [1st Dist.]
2002, pet. denied).
      12
      … The names in these findings of fact have been modified to reflect the
names used in the opinion.

                                      11
6.    Father and Mother were divorced on May 22 nd , 2001. Father
      filed a petition to modify the parent child relationship on
      January 6 th , 2005, in Denton County. Said matter was
      ultimately transferred to Wise County on February 4 th , 2005.

7.    Grandfather is the paternal grandfather of L.A.F. and filed a
      Petition in Intervention of Grandparents in Suit Affecting the
      Parent-Child Relationship.

8.    After the divorce between Mother and Father, Mother began
      a sexual relationship with Leonardo Ruben DeLuna, which
      included cohabitation.

9.    On or about 03/08/02 Mother married Leonardo Ruben
      DeLuna, a citizen of Mexico, but not a citizen of the United
      States.

10.   On or about 05/22/02 Mother was arrested for theft of
      stolen property.

11.   On or about 06/14/03 Mother made a 911 emergency call
      from her residence and reported that Leonardo Ruben DeLuna
      had been drinking and had assaulted her before leaving the
      residence. While deputies were at the residence Leonardo
      Ruben DeLuna contacted the residence by telephone and
      spoke to the deputy. His speech was slurred and he was
      incoherent.

12.   On or about 12/7/03 Mother made a 911 emergency call
      from her residence and advised that Leonardo Ruben DeLuna
      was causing problems. She reported that he had been
      behind the residence smoking weed and had taken a bag of
      marijuana ou[t] of the ice box of her residence.

13.   On or about 12/28/03 Mother made a 911 emergency hang-
      up call from her residence. When deputies arrived she
      reported that Leonardo Ruben DeLuna had assaulted her and
      broke the telephone(s) she was dialing 911 with.



                                12
14.   On or about 4/25/04 Mother made a 911 emergency call
      from her residence and reported that 2 of her children (ages
      4 and 2) and her niece (age 3) were missing from the
      residence. Law enforcement personnel found the children at
      an old dairy down the road.

15.   On or about 4/29/04 Mother made a 911 emergency call
      from her residence and reported that Leonardo Ruben DeLuna
      had threatened her with a crowbar. She also reported that
      he was on “ice” and was strung out and high, and had
      removed drug paraphernalia from a shed on the residential
      property. She also stated that she feared for her life because
      of his rage and only lets him stay there so he will not beat
      her up.

16.   On or about 05/01/04 Mother contacted the Wise County
      Sheriff’s Office and reported that Leonardo Ruben DeLuna
      was yelling at her. Deputy advised that since they were
      married he (Ruben) could be at the residence.

17.   On or about 05/03/04 Mother made a 911 emergency call
      from her residence and reported that Leonardo Ruben DeLuna
      was on a lot of dope, was tripping out on things and
      hallucinating. She advised that he was outside all night
      shooting a rifle. She further advised that he had not been
      working because of drug addiction.

18.   On or about 09/22/04 Leonardo Ruben DeLuna was arrested
      for outstanding warrants.

19.   On or about 09/26/04 Mother interfered in a DWI traffic stop
      involving her friend, Josafat Rodriguez.

20.   On or about 3:50 p.m. on 07/30/05 Mother made a 911
      emergency call from her residence and reported that
      Leonardo Ruben DeLuna had a crack pipe in his pants, he
      was acting strangely and saying that someone was going to
      die. She further advised that two individuals had come and
      bought drugs earlier in the day.

                                13
21.   On or about 10:39 p.m. on 07/30/05 Mother made a 911
      emergency call from her residence and reported that
      Leonardo Ruben DeLuna was on drugs and alcohol and will
      “hurt them.” The 911 operator reported hearing children
      crying during the phone call. Mother advised that they would
      lock themselves in the bathroom.

22.   In approximately 2005 Mother began having an extramarital
      affair with Robert (Jackie) Farias.

23.   On or about 11/22/05 Mother made a 911 emergency call
      from her residence and reported that Robert (Jackie) Farias
      had threatened her. She also reported that Mr. Farias had a
      knife and that her brother had a firearm.

24.   On or about 12/18/05 . . . a call was made to the Wise
      County Sheriff’s Office regarding a disturbance at Mother’s
      residence involving Robert (Jackie) Farias. It was reported
      that he had threatened Mother’s family members with a box
      cutter and was armed with a golf club. Deputies found
      Robert Jackie Farias hiding underneath a baby crib in her
      residence where he resisted arrest.

25.   On or about 1:35 a.m. on 02/19/06 Robert (Jackie) Farias
      made a 911 emergency call from Mother’s residence.
      Dispatcher could hear a female in the background telling him
      to hang up, then the line disconnected. At approximately
      1:37 a.m. a female called back advising boyfriend wanted to
      leave. A male subject was in the background and was
      stating he had a knife before the line disconnected. At
      approximately 1:45 a.m. [a] female complainant called back
      to say there was no emergency, no argument. Deputy
      arrived on scene and found Robert (Jackie) Farias and Mother
      at the residence. Both subjects stated that they had been
      verbally arguing and had made up.

26.   On or about 9:47 p.m. on 03/06/06 Mother made a 911
      emergency call from her residence and reported that Robert
      (Jackie) Farias had taken (20) hydrocodone, (10) ibuprofen,

                               14
      (3) ciproflaxin, (30) clindmycin, (20) methylin and (15)
      phenazoprid after an argument. She reported taking her
      children to her mother’s house and that Robert (Jackie) Farias
      had locked himself in her residence before leaving the
      premises. Deputies searched the property and advised her to
      call back if he returned.

27.   On or about 11:25 p.m. on 03/06/06 Mother made a second
      911 emergency call from her residence and reported that
      Robert (Jackie) Farias had returned and was having vomiting
      and stomach pain.       Emergency personnel arrived and
      transported him to Wise Regional hospital.

28.   On or about 03/08/06 Mother contacted the Wise County
      Sheriff’s Office and reported that Robert (Jackie) Farias had
      damaged her vehicle.

29.   On or about 03/28/06 Mother made a 911 emergency call
      from her residence to report a domestic disturbance involving
      Robert (Jackie) Farias. She reported that he had been using
      “ice” and reported that he had threatened her brother with a
      knife, had assaulted her, and had thrown a satellite dish
      through her parents’ window (next door). She also reported
      being afraid for her safety as well as the safety of her family.
      Deputies found him lying on a bed in the residence
      pretending to be asleep. He resisted arrest, assaulted the
      deputy and kicked out the rear driver window of the patrol
      unit. Mr. Farias was completely out of control which
      necessitated using pepper spray twice.

30.   On or about 08/18/06 Decatur Police Department arrested
      Robert (Jackie) Farias for public intoxication. He resisted
      arrest and attempted multiple times to break the rear driver
      side window of the patrol unit.

31.   On or about 08/26/06 an anonymous call was made to 911
      involving Mother and Robert (Jackie) Farias. He reported that
      the woman had a 4 year old child with her and had asked for
      help. The two were arguing and then the male ran across

                                 15
      the field. Mother advised the deputy that they were arguing.
      He located Farias coming out of the woods who confirmed
      the story. He would go to a friend’s house, she would go to
      her parents’ house.

32.   On or about 11/10/06 Decatur Police Department arrested
      Robert (Jackie) Farias for public intoxication. He was also in
      the possession of other individuals’ identifications. He was
      arrested on warrants, etc.

33.   On or about 12/17/06 Mother contacted the Wise County
      Sheriff’s Office regarding Robert (Jackie) Farias.        She
      reported that he has just been released from the hospital and
      was going to kill her. She also advised that he is on Lithium
      and is not taking it.

34.   On or about 12/18/06 Mother contacted the Wise County
      Sheriff’s Office regarding Robert (Jackie) Farias.      She
      reported that he had telephoned her over 100 times in 24
      hours. She further reported that she is afraid for her life
      because he is extremely unstable and that he had threatened
      to kill her and Leonardo Ruben DeLuna.

35.   On or about 01/07/07 an anonymous call was made to the
      Wise County Sheriff’s Office involving a couple fighting at
      Mother’s residence. Deputies arrived and found Leonardo
      Ruben DeLuna who reported they had a verbal argument over
      her taking their children around Robert (Jackie) Farias.
      Mother then contacted the Sheriff’s Office to inquire who
      had made the call to them. They asked her to go to the
      Sheriff’s Office where they met her. She confirmed what
      had happened.

36.   On or about 04/04/07 Robert (Jackie) Farias was transferred
      from the Hays County Jail to Wise County Sheriff’s Office for
      booking on outstanding warrants.

37.   On or about 06/13/07 Mother was traveling with Robert
      (Jackie) Farias on Highway 51 South in front of the Exxon

                                16
      and Tractor Supply in Decatur. They pulled into the Exxon
      station. Leonardo Ruben DeLuna was mowing in front of
      Tractor Supply when he saw his wife with Robert (Jackie)
      Farias. Leonardo Ruben DeLuna proceeded over to the Exxon
      where he stabbed Robert (Jackie) Farias in the back with a
      knife. He was arrested and Robert (Jackie) Farias was care-
      flighted to Fort Worth. Leonardo (Ruben) DeLuna was
      arrested for assault and remains in the Wise County Jail with
      no bond on an immigration hold.

38.   Mother is fluent in Spanish and has visited with Leonardo
      (Ruben) DeLuna’s parents in Mexico.

39.   On or about 07/27/07 Robert (Jackie) Farias was transferred
      from Dallas County to Wise County Sheriff’s Office for
      booking on outstanding warrants.

40.   On or about 08/25/07 Robert (Jackie) Farias and Leonardo
      Ruben DeLuna were both incarcerated at the Wise County
      Jail. Mother came to visit Leonardo Ruben DeLuna. At the
      same time Robert (Jackie) Farias was placed in the visitation
      area to visit with another individual. Robert (Jackie) Farias
      proceeded to wave through the glass window at Mother.
      Leonardo Ruben DeLuna initiated a fight with Robert (Jackie)
      Farias. The fight was broken up by the jailers and both
      inmates were immediately removed from the area.

41.   On or about 07/10/07 Mother filed for divorce from Leonardo
      Ruben DeLuna. Said divorce has never been finalized.

42.   Mother has an extensive and repeated history of visiting both
      Robert (Jackie) Farias and Leonardo Ruben DeLuna at the
      Wise County Jail.

43.   Mother has taken L.A.F. to the Wise County Jail for visitation
      of Robert (Jackie) Farias and/or Leonardo Ruben DeLuna.




                                17
44.   Mother has put her children in harm’s way by subjecting
      them to repeated incidences of violence, and persons with
      extensive criminal histories of drug and alcohol abuse.

45.   Mother has had illicit drugs and drug paraphernalia at her
      residence.

46.   Mother has reported that persons have bought drugs from
      her residence.

47.   Mother will continue to put her children in harm’s way by
      subjecting them to repeated incidences of violence, and
      persons with extensive criminal histories of drug and alcohol
      abuse.

48.   Mother is unemployed and has a history of unsteady
      employment.

49.   Mother’s earnings are solely inadequate to support herself
      and her children.

50.   Mother has never been able to carry health insurance on
      L.A.F.

51.   Mother has filed fraudulent federal income tax returns.

52.   Mother has filed fraudulent applications with the Texas
      Health and Human Services Commission and received food
      stamps based upon such information.

53.   There are multiple fighting cocks on the property that
      Mother’s residence is located upon.

54.   Mother’s father has in the past raised fighting cocks on the
      property that Mother’s residence is upon.

55.   Mother has allowed her son to attend a cock fight with her
      father, Donald Harwell.



                                18
      56.     Mother has opened a phone account in the name of L.A.F.
              which has resulted in a negative credit rating on L.A.F.

      57.     L.A.F. has had numerous unexcused absences and tardies
              from school while in the possession of Mother.

      58.     Mother has been contacted on numerous occasions by school
              personnel that L.A.F. was dressed inappropriately.

      59.     Mother has failed to establish and maintain a suitable, stable
              residence prior to and during the pendency of this suit.

      60.     Mother has failed to provide consistent transportation for
              L.A.F. to speech therapy.

      61.     The educational needs of L.A.F. will be better served while
              in possession of Grandmother.

      62.     Grandmother will initiate and provide adequate therapies as
              needed by L.A.F.

      63.     Grandmother is loving and supportive of L.A.F.

      64.     Grandmother has a history of steady employment and has an
              excellent work record and recommendation from her current
              employer.

      65.     Grandmother makes approximately $50,000 annually and has
              a full benefit package which will provide medical, dental and
              vision insurance for L.A.F.

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury’s answers to jury questions. 13 When findings of fact are

filed and are unchallenged, they occupy the same position and are entitled to



      13
           … Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex.
1991).

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the same weight as the verdict of a jury; they are binding on an appellate court

unless the contrary is established as a matter of law or there is no evidence to

support the finding. 14 Mother does not challenge the findings.

       Based on the trial court’s extensive findings and our own review of the

record, we cannot hold that the trial court abused its discretion by concluding

that   (1)   the   order   changing   custody   is   necessary   because   L.A.F.’s

circumstances would significantly impair her physical health or emotional

development; (2) Grandmother has overcome the presumption that a parent

acts in the best interest of her child; and (3) the appointment of Mother as the

joint managing conservator with the right to designate the primary residence

would not be in L.A.F.’s best interest because it would significantly impair her

physical health, emotional development, or both.         Accordingly, we overrule

Mother’s first point.

       Having overruled Mother’s two points, we affirm the trial court’s

judgment.




                                             LEE ANN DAUPHINOT
                                             JUSTICE

PANEL: CAYCE, C.J.; DAUPHINOT and WALKER, JJ.

DELIVERED: November 5, 2009


       14
       … McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Raman
Chandler Props., L.C. v. Caldwell’s Creek Homeowners Ass’n, Inc., 178 S.W.3d
384, 390 (Tex. App.—Fort Worth 2005, pet. denied).

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