                          COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                 NO. 2-07-251-CV


IN THE INTEREST OF B.P., JR., A CHILD




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          FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

     Appellant Maria P. appeals an order appointing the Department of Family

Protective Services (DFPS) as permanent managing conservator of B.P. In her

first two points, Maria argues that the evidence is legally and factually

insufficient to support the trial court’s finding that appointing Maria as

managing conservator would significantly impair B.P.’s physical and emotional



     1
         … See T EX. R. A PP. P. 47.4.
development. In her third point, Maria asserts that the trial court abused its

discretion by failing to appoint her as possessory conservator of B.P. We will

affirm in part and reverse and remand in part.

                    II. F ACTUAL AND P ROCEDURAL B ACKGROUND

      Maria is the mother of ten-year-old B.P., who has been diagnosed with

bipolar disorder, psychotic disorder, oppositional defiant disorder, and attention

deficit hyperactivity disorder. Prior to this case, Child Protective Services (CPS)

had received six referrals regarding Maria and her care for B.P. These referrals,

some for medical neglect, were eventually either “ruled out” or labeled “unable

to determine.”

      The current case with B.P. began in December 2005 when either Maria

or her cousin, Nina F., called CPS to come and remove B.P. from Nina’s house.

Both Maria and B.P. were living with Nina at the time of removal. 2 The incident

that led to the removal began as an argument over a toy between B.P. and

Nina’s boyfriend.    The incident escalated, and B.P. climbed in a tree and

threw—or at least threatened to throw—rocks at the boyfriend’s car. Although

Maria claims that Nina actually called CPS and that she never talked to CPS on




      2
       … Maria had agreed with CPS on a safety plan that placed B.P. with
Nina. The plan also included that Maria should not live with B.P. at Nina’s
house.

                                        2
that occasion, Cacana Young, a CPS investigator, testified that after the

incident, Maria told her that she thought it would be in B.P.’s best interest if he

received treatment and was placed in a foster home.

      CPS took custody of B.P. in December 2005, and since that time, B.P.

has been placed in one shelter, five foster homes, and has been hospitalized

four times. B.P. is now being treated and monitored at a residential treatment

center in Victoria, Texas. On December 28, 2005, DFPS filed a suit affecting

the parent child relationship, seeking termination of Maria’s parental rights and

permanent managing conservatorship of B.P. After a hearing on June 14 and

22, 2007, the trial court found that it would be in B.P.’s best interest to

appoint DFPS as managing conservator. The trial court made clear to both

parties that the ultimate goal in the case is to have B.P. return to his home with

Maria.   The trial court also dismissed DFPS’s petition to terminate Maria’s

parental rights without prejudice.

                         III. M ANAGING C ONSERVATORSHIP

      In her first two points, Maria argues that the evidence is legally and

factually insufficient to support the trial court’s finding that appointing Maria as

managing conservator would significantly impair B.P.’s physical and emotional

development.




                                         3
      A.     Standards of Review

      We give wide latitude to a trial court’s decision on custody, control,

possession, and visitation matters.      Earvin v. Dep’t of Family & Protective

Servs., 229 S.W.3d 345, 350 (Tex. App.—Houston [1st Dist.] 2007, no pet.)

(citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We will not

reverse a conservatorship finding unless the record demonstrates that the trial

court abused its discretion. See In re J.A.J., 243 S.W.3d 611, 616 (Tex.

2007);     Whitworth   v.   Whitworth,    222    S.W.3d    616,    622–23     (Tex.

App.—Houston [1st Dist.] 2007, no pet.) (op. on reh’g). Under an abuse of

discretion standard, challenges to the legal and factual sufficiency of the

evidence are not independent grounds of error; rather, they are simply factors

in assessing whether the trial court abused its discretion. Gardner v. Gardner,

229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.).

      In determining whether there has been an abuse of discretion because the

evidence is legally or factually insufficient to support the trial court’s decision,

we engage in a two-pronged inquiry: (1) Did the trial court have enough

information upon which to exercise its discretion; and (2) did the trial court err

in applying its discretion? The traditional sufficiency review comes into play

with regard to the first question. In re W.M., 172 S.W.3d 718, 725 (Tex.

App.—Fort Worth 2005, no pet.); In re T.D.C., 91 S.W.3d 865, 872 (Tex.

                                         4
App.—Fort Worth 2002, pet. denied). With regard to the second question, we

determine, based on the elicited evidence, whether the trial court made a

reasonable decision. W.M., 172 S.W.3d at 725; T.D.C., 91 S.W.3d at 872.

      B.    Section 153.131 – Significant Impairment

      There is a strong presumption that the best interest of a child is served

if a natural parent is appointed as a managing conservator. Whitworth, 222

S.W.3d at 623; see also T EX. F AM. C ODE A NN. § 153.131(a) (Vernon 2002).

Section 153.131 provides that a parent shall be appointed sole managing

conservator 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. T EX.

F AM. C ODE A NN. § 153.131(a).

      For the court to award managing conservatorship to a non-parent under

section 153.131, the non-parent must prove a significant impairment by a

preponderance of credible evidence. Whitworth, 222 S.W.3d at 623; see also

T EX. F AM. C ODE § 105.005 (Vernon 2002) (“Except as otherwise provided by

this title, the court’s findings shall be based on a preponderance of the

evidence.”); J.A.J., 243 S.W.3d at 616. There must be evidence to support

the logical inference that some specific, identifiable behavior or conduct of the

parent will probably cause that harm. Whitworth, 222 S.W.3d at 623. Indeed,

                                       5
the non-parent must offer evidence of specific acts or omissions of the parent

that demonstrate an award of custody to the parent would result in physical or

emotional harm to the child. Lewelling v. Lewelling, 796 S.W.2d 164, 167

(Tex. 1990); Whitworth, 222 S.W.3d at 623.

      An adult’s future conduct may be somewhat determined by recent past

conduct; however, evidence of past misconduct, in and of itself, may not be

sufficient to show present unfitness. Whitworth, 222 S.W.3d at 623. Specific

acts or omissions of a parent implicating a significant impairment to a child’s

emotional development may be inferred from direct evidence. Id. However,

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

on evidence which merely raises a surmise or speculation of possible harm. Id.

            1.     Maria

      DFPS’s primary concern is that Maria is unable, at this time, to provide

a stable environment for B.P. The record supports this concern as two CPS

caseworkers and one of Maria’s former counselors testified about Maria’s

instability and its effect on B.P.

      DFPS cites multiple living arrangements over the course of the case as a

contributing factor to her instability. At the time of the hearing, Maria lived in

an apartment in Garland, Texas, where she had been for two months.

However, according to Tonyia Brown, a CPS caseworker, Maria had moved at

                                        6
least six times since the case began, which was at that time, approximately

eighteen months.

      DFPS also points to Maria’s employment history as evidence of instability.

Young testified that Maria was not employed at the time of B.P.’s removal.

Brown stated that Maria had not had stable employment throughout the case.

Maria testified that she was working at the time of B.P.’s removal and that she

had always worked since B.P. was born. However, when asked where she had

been employed over the two years prior to the hearing, Maria responded as

follows:

      Well, I haven’t been employed for the last year. I was kind of
      recovering from my son being taken, so I didn’t work prior to this
      job. I worked at the Waffle House for a little while because they
      told me I had to get a job when they first took my son, but then
      after that I just kind of didn’t want to work and then before that,
      I worked at Owens Auto. (Emphasis added).

Maria stated that Owens Auto “let [her] go” partly because CPS began calling.

At the time of the hearing, she was employed at Quality Moving Systems and

performed some type of insurance work. Brown later testified that she did not

have any proof of income from Maria’s new job although she had contacted

Maria at the work phone number that she had provided.

      DFPS argues that Maria’s instability is evidenced by the considerable

testimony regarding visitations with B.P. DFPS set up weekly visits between


                                       7
Maria and B.P. that were ultimately discontinued after Maria missed several

visits in a row. Brown stated that Maria had missed visits for close to two

months straight and failed to keep in contact with Brown during that time

period. Maria testified that she had missed only four visits with B.P. around the

time that her mother passed away. She disputed that she had ever missed

more than four visits, but when she was confronted with her testimony from

a previous hearing regarding missed visits in April, May, and June 2006, she

said, “Well, I don’t really recall a lot of the stuff that happened back then. I

was grieving my mother.”      She also claimed that CPS did not make visits

available to her after B.P. had been allegedly “mistreated” by a foster parent.

Brown testified that B.P. was never kept from seeing Maria because of an injury

or abuse allegations. CPS cancelled three visits because either B.P. was sick

or there were transportation difficulties, but it made up every visit it was

responsible for cancelling.

      Brown testified that Maria had also not consistently participated in phone

therapy with B.P. Maria stated that she had taken part in one phone-therapy

session and that she had tried to participate in more but that B.P.’s therapist at

the residential treatment center never returned her phone calls.

      DFPS asserts that Maria has shown instability by not completing her

service plan. Specifically, DFPS set up for Maria counseling or therapy sessions

                                        8
with two separate agencies, but both times, the counseling sessions were

discontinued based on Maria’s noncompliance with scheduled visits. Daniels-

Rice, Maria’s second counselor, worked with Maria on her depression, self-

esteem, and helping her become more stabilized to be able to care for her

children. Daniels-Rice diagnosed Maria with depression but stated that Maria

never accepted that diagnosis. In response to this testimony, Maria said that

Daniels-Rice never diagnosed her with depression.

      In total, Maria made sixteen counseling sessions with Daniels-Rice over

six months, but the sessions were eventually cancelled after Maria missed

seven visits. Daniels-Rice generally cancels counseling cases after two missed

visits, but she kept Maria longer because she felt that Maria needed to be

stabilized on medication to help treat her depression, which Daniels-Rice

thought contributed to her missed appointments. Daniels-Rice stated that Maria

worked hard when she showed up for the counseling visits. She also stated

that Maria needs to continue counseling although she is unwilling to see Maria

again because of her agency’s policy on missed visits.

      DFPS set up a third counseling session for Maria, but Brown stated that

to her knowledge, Maria had not set up an appointment as of the time of trial.

Maria stated that if B.P. were returned to her, she would make sure to attend

all required counseling sessions.

                                      9
      Maria still needs to complete her psychiatric evaluation, which was

recommended after she completed her psychological evaluation. Maria claims

that she has tried to set up the psychiatric evaluation but that it has been

difficult because of her busy schedule. She stated, however, that she has been

“certified” through other agencies such as North Star and Mental Health Mental

Retardation.       She also needs to complete her education at the Bipolar

Foundation.        Additionally, DFPS recommends that Maria complete family

counseling with B.P. and B.P.’s fourteen-year-old sister, who, after eight years

away, is now living with Maria.

      Maria completed a parenting class through the Child and Family Guidance

Center as part of her service plan and is now participating in a program called

Step Up Parenting, which is designed specifically for parents of children who

have mental disabilities but is not part of her service plan. She claims that

while she is not currently seeing a therapist that Step Up Parenting is a

“therapy setting.”

              2.      B.P.

      The supreme court has noted that “the act of a parent in placing a child

in an unstable environment is the very type of conduct that the Legislature

contemplated would significantly impair the physical or emotional development




                                       10
of a child.” 3 See Lewelling, 796 S.W .2d at 167 n.4. Here, structure and

stability, or lack of such qualities, are paramount concerns in our decision. As

set forth below, the severity of B.P.’s psychological condition requires it.

      Although Maria denies knowledge of some incidents and outright disputes

others, there was testimony presented at the hearing that demonstrates a long

history of psychological disturbances that at times ended in injuries or

threatened injuries to B.P. and others. Before the case began, B.P. experienced

auditory and visual hallucinations, and at one point, B.P. attempted to kill




      3
        … In Lewelling, the supreme court stated that the mother’s
unemployment and crowded living conditions amounted to no evidence of
significant impairment to the child. 796 S.W.2d at 167. Justice Doggett,
writing for the majority, referenced a portion of Justice Gonzalez’s dissenting
opinion, in which Justice Gonzalez argued that the failure to remove a child
from an unstable environment might not be considered an act or omission under
the majority’s standards if not caused by the parent. See id. at 167 n.4, 171.
Justice Gonzalez stated that under the majority’s holding, if a parent chooses
to live with the child in a “rat infested crack house with drug addicts or partner
swapping friends, but the parent does not use drugs,” the Court would
apparently reverse the placement of the child with a non-parent. Id. at 171 n.4.
In response, as set forth above, Justice Doggett stated that placing a child in
an unstable environment could be evidence of conduct that supported an
impairment finding but that the evidence in Justice Gonzalez’s hypothetical is
the very type of evidence that was “patently absent” from the record in that
case. Id. at 167 n.4.
       We do not suggest that the facts here are in line with the extreme
hypothetical outlined by Justice Gonzalez, but Maria’s inconsistent actions
regarding her service plan and counseling sessions evidence an unstable
environment that is not conducive to a structured physical and emotional
development.

                                       11
himself. At age seven, B.P. was twice admitted to psychiatric hospitals. Since

the inception of the case, B.P. has continued to have numerous emotional and

physical outbursts, leading to B.P.’s placement at a residential treatment

facility.

       At one foster home, B.P. became upset when certain children at the home

were put in “timeout.” He then picked up a trophy and struck the foster parent

in the head.    B.P. ran away from home—a common theme throughout the

case—and when he returned, the foster parents tried to restrain B.P. and calm

him down.      B.P. responded by grabbing a knife and threatening the foster

parents. The foster parents called the police, and when the police arrived, B.P.

still had the knife drawn. B.P. ended up throwing rocks at everyone before the

police were able to restrain him in handcuffs and take him to Timberlawn

Hospital for psychiatric evaluation.

       Another time, B.P. ran away from school, and when he returned, his

foster parent picked him up and attempted to take him to the hospital. B.P. got

into the car but later jumped out into traffic. B.P. was not hurt during this

incident although he was again taken to Timberlawn Hospital. On a different

occasion, B.P. became upset when he could not get in contact with Maria and

attempted to run away. Unable to open the door, B.P. broke through the glass

to escape.     The glass cut B.P, and he later received stitches for the injury.

                                       12
Also, since he has been at the residential treatment center, he has displayed

self-harming behaviors, such as biting himself and hitting his head into other

objects. Brown stated that he still exhibits some of the self-harming behaviors

at the center but not as much as he once did. Lastly, as mentioned above, B.P.

argued with Nina’s boyfriend over a toy and threw rocks at his car. Maria

disputes that B.P. ever threw rocks and asserts that she eventually calmed him

down before he caused any damage.

      Maria claims that the reason B.P. has had so many problems in CPS’s

custody is because he feels like he has “been ripped out of [her] home.” Maria

believes that B.P. “feels abandoned” and if he were returned to her that his

misbehavior would not continue except for problems in readjusting to living at

home.

      C.    Conclusion

      We recognize that Maria has taken some steps to stabilize her life, but

there remains a list of incomplete requirements that we cannot ignore. Most

notably, Maria has shown an inability to consistently meet her own mental

health needs by failing to schedule a psychiatric evaluation and twice failing to

complete the recommended counseling sessions because of noncompliance with

scheduled visits.   And as of the time of trial, she still had not taken the

affirmative step to continue counseling even though a third counseling session

                                       13
had been set up for her. Before CPS placed B.P. in the residential treatment

center, Maria also missed several visitations with B.P., resulting in CPS

cancelling the weekly visitations. Further, although unemployment will not

support a significant impairment finding 4 —and in fact Maria was employed at

the time of the hearing—Maria has shown an indifference in the past towards

securing steady employment in light of CPS’s request that she work after losing

possession of B.P.5 Maria has not completed the bipolar education classes

recommended to her after her psychological evaluation; however, she has

completed a parenting class and is enrolled in Step Up Parenting.

      Given Maria’s inconsistent behavior, her inability to do what was asked

of her to regain custody of B.P., and B.P.’s extreme need for structure and

stability, it was within the trial court’s discretion to conclude that appointing

Maria as managing conservator of B.P. would significantly impair B.P.’s physical

and emotional development. Thus, we hold under the appropriate standards of

review that the trial court did not abuse its discretion by appointing DFPS as

managing conservator. See Earvin, 229 S.W.3d at 351 (holding that the trial



      4
          … See Lewelling, 796 S.W.2d at 167.
      5
        … Maria stated, “I worked at the Waffle House for a little while because
they told me I had to get a job when they first took my son, but then after that
I just kind of didn’t want to work and then before that, I worked at Owens
Auto.” (Emphasis added).

                                       14
court did not abuse its discretion by determining that the appellant was not

willing to provide an environment conducive to his daughter’s physical health

and emotional development when the appellant visited the child only once

during DFPS’s temporary conservatorship and failed to complete his court-

ordered service plan, which included parenting classes, drug tests, and

counseling). We overrule Maria’s first two points.

                       IV. P OSSESSORY C ONSERVATORSHIP

      In her third point, Maria argues that the trial court abused its discretion

by not appointing her as possessory conservator. Maria’s attorney requested

during closing argument that the trial court appoint Maria as managing

conservator, but, in the alternative, he asked that if the trial court determined

that it was in B.P.’s best interest for him to stay at the residential treatment

center, that the trial court appoint Maria as possessory conservator. The trial

court’s order did not mention possessory conservatorship but did state that all

relief requested but not expressly granted is denied. Additionally, Maria stated

in her motion for new trial on the order naming DFPS as managing

conservator—which the trial court denied—that the trial court abused its

discretion by not appointing her as possessory conservator.

      The State agrees with Maria that the trial court abused its discretion. The

State asserts that “the trial court seems to have granted [Maria] the rights she

                                       15
requested as a possessory conservator without any of the obligations. . . .

Maria appears to be correct in her assertion that the trial court abused its

discretion when it failed to formally name her as possessory conservator.”

While we disagree on the exact reasoning that the trial court erred, we

ultimately agree with both parties that the trial court should have appointed

Maria possessory conservator.

      If a managing conservator is appointed, the court may appoint one or

more possessory conservators. T EX. F AM. C ODE A NN. § 153.006(a) (Vernon

2002). The court shall appoint as a possessory conservator a parent who is not

appointed as a sole or joint managing conservator unless it finds that the

appointment is not in the best interest of the child and that parental possession

or access would endanger the physical or emotional welfare of the child. Id.

§ 153.191. (Emphasis added).

      The trial court made no express findings regarding the appointment of

Maria as possessory conservator. The trial court, however, ordered that Maria

shall have reasonable visitation and access to B.P. as agreed upon and arranged

by DFPS, indicating that the court did not find that parental access would

endanger the physical or emotional welfare of the child.

      Though courts sometimes use the words possession and access

interchangeably, they are used differently in the Texas Family Code.        In re

                                       16
Walters, 39 S.W.3d 280, 284 (Tex. App.—Texarkana 2001, no pet.). A person

with a right of access to a child may approach him, communicate with him and

visit with him, but may not take possession or control of the child away from

the managing conservator. Id. at 284–85. A person with a right to possession

of a child may exercise possession and control of the child, to the exclusion of

all other persons, including the managing conservator, during periods of

possession. Id. at 285.

      Maria and DFPS read section 153.191—and rely on Hopkins v. Hopkins

as reading it in the same manner—to mean that if the trial court grants access

to the child, then the trial court is compelled to appoint the parent, who was

not named managing conservator, as possessory conservator. See 853 S.W.2d

134, 138 (Tex. App.—Corpus Christi 1993, no writ). We note that the Hopkins

court based its decision on the previous version of the statute that differs from

that at issue in this case.6 And, in any event, we read the current statute as

providing that a court could find that access would not endanger the child but

that possession might endanger the child.       Thus, if the court found that


      6
       … The statute, then section 14.03(d), stated: “The court shall appoint
as a possessory conservator the parent who is not appointed as a sole or joint
managing conservator unless it finds that parental possession or access is not
in the best interest of the child and that parental possession or access would
endanger the physical or emotional welfare of the child.” Hopkins, 853 S.W.2d
at 136. (Emphasis added).

                                       17
appointment of the parent as possessory conservator would not be in the best

interest of the child and that possession would endanger the child, the court

would not be compelled to appoint the parent as possessory conservator, even

if it found, as in this case, that access would not endanger the child.

      The court is compelled to appoint the parent as possessory conservator

unless it finds that (1) the appointment of the parent as possessory conservator

is not in the best interest of the child, and (2a) parental possession would

endanger the child or (2b) access would endanger the child. See T EX. F AM.

C ODE A NN. § 153.191. In sum, a finding either expressly or implicitly that

access would not endanger the child’s physical or emotional welfare does not

entirely preclude the court’s discretion in appointing a possessory conservator

because the court could find that possession would endanger the child’s

physical or emotional welfare.

      Because the court in this case found that B.P. needs to stay at the

residential treatment facility and that it was not in his best interest to leave as

of the time of trial, we can infer a finding that unrestricted possession would

endanger B.P.’s welfare right now. We are mindful, however, that possession

is not a sum total proposition. When a trial court appoints a parent possessory

conservator, it can conclude that unrestricted possession would endanger the

physical or emotional welfare of the child, but that restricted possession or

                                        18
access would not.      Walters, 39 S.W.3d at 286.       A court can fashion a

possession order that remedies the danger to the child’s welfare by placing

restrictions and conditions on possession or access. Id. Indeed, if the trial

court appoints a possessory conservator, it may grant, deny, restrict, or limit

the possessory conservator’s possession of or access to the child.           See

Hopkins, 853 S.W.2d at 137. It may also grant, deny, restrict, or limit any

rights, privileges, duties, and responsibilities with respect to the child as are

necessary to protect the child’s best interest.        Id.   However, because

appointment of a parent as possessory conservator implies a finding that access

by that parent will not endanger the physical or emotional welfare of the child,

complete denial of access should be rare—i.e., when it is not in the best

interest of the child. Walters, 39 S.W.3d at 286–87; see also T EX. F AM. C ODE

A NN. § 153.193 (Vernon 2002) (“The terms of an order that denies possession

of a child to a parent or imposes restrictions or limitations on a parent’s right

to possession of or access to a child may not exceed those that are required to

protect the best interest of the child.”).

      In Walters, the trial court appointed the father as managing conservator

and the mother as possessory conservator.         Id. at 282.    The trial court

restricted the mother’s access and possession because the mother had

exhibited behavior in the past mainly relating to her alcoholism that supported

                                       19
the finding that unrestricted possession of the child would endanger the child’s

welfare. Id. at 283 (citing evidence that the mother overdosed on drugs in a

suicide attempt, drank to the point of passing out while the child was in her

care, passed out and urinated in a chair, and had violent rages in front of the

child).   The court of appeals held that the potential danger to the child if the

parent were granted unrestricted possession could be remedied by restricted

possession or access. Id. at 287.

      The trial court in that case stated that the mother shall have possession

of the child at all times “mutually agreed between the parties.” Id. at 283. It

then stated in its findings of fact and conclusions of law that the mother must

exhibit a three-year period of sobriety before implementation of the standard

possession order would be in the child’s best interest. Id.; see also T EX. F AM.

C ODE A NN. § 153.311 (Vernon 2002). The mother complained that the trial

court erred by effectively denying her possession of and access to the child by

ordering that she have possession at times “mutually agreed between the

parties.” Walters, 39 S.W.3d at 285. The court of appeals ultimately held that

the   problem   was not that the trial court restricted possession           and

access—although it stated that the trial court should not completely deny

access—but rather that the order was not sufficiently specific as to the times




                                       20
and conditions for the mother’s possession of or access to the child. Id. at

288.

       Like in Walters, the evidence in this case regarding B.P.’s extreme

emotional condition and Maria’s inconsistent behavior as of the time of trial

supports an implied finding that unrestricted possession of B.P. might endanger

B.P.’s physical and emotional welfare. However, the court made clear that the

end goal in this case is to have B.P. return to Maria.      Additionally, Young

testified that DFPS’s plan is to gradually integrate Maria and B.P. back together

to promote family reunification.

       Thus, at some point when B.P. becomes more stable and when Maria

shows an ability to take care of herself by completing services and establishing

a stable lifestyle—i.e., conditions on possession—Maria could slowly, and with

restrictions, begin to take possession of B.P. Thus, we cannot say that the trial

court found that possession, albeit restricted possession, would endanger B.P.

Accordingly, we hold that the trial court abused its discretion by not appointing

Maria as possessory conservator, 7 and we sustain Maria’s third point.




       7
         … Because the evidence supports findings that restricted access and
possession would not endanger B.P., we need not address whether the
appointment of Maria as possessory conservator is in B.P.’s best interest. See
T EX. F AM. C ODE A NN. § 153.191.

                                       21
                               V. C ONCLUSION

      Because we have overruled Maria’s first two points and sustained her

third, we affirm the trial court’s judgment appointing DFPS as managing

conservator and reverse the judgment regarding possessory conservatorship.

We remand the case to the trial court for further proceedings consistent with

this opinion.




                                          DIXON W. HOLMAN
                                          JUSTICE

PANEL B: DAUPHINOT, HOLMAN, and WALKER, JJ.

DELIVERED: July 3, 2008




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