                                                                               ACCEPTED
                                                                           13-15-00099-CV
                                                           THIRTEENTH COURT OF APPEALS
                                                                  CORPUS CHRISTI, TEXAS
                                                                     7/21/2015 10:10:42 AM
                                                                    CECILE FOY GSANGER
                                                                                    CLERK




                                                 FILED IN
                                         13th COURT OF APPEALS
                Cause No. 13-15-00099-CV
                                      CORPUS CHRISTI/EDINBURG, TEXAS
                                         7/21/2015 10:10:42 AM
              IN THE COURT OF APPEALS CECILE FOY GSANGER
 FOR THE   THIRTEENTH SUPREME JUDICIAL DISTRICT   Clerk
               CORPUS CHRISTI, TEXAS
_____________________________________________________

                  IN THE INTEREST OF

             L.D.J. III, A.Y.J., W.F.J. and C.J.,

                        CHILDREN

_____________________________________________________

      Appealed from the 206th Judicial District Court of
                  Hidalgo County, Texas
            Hon. Rose Guerra Reyna, Presiding
    ___________________________________________

        APPELLANT’S BRIEF ON THE MERITS
    ___________________________________________

            ORAL ARGUMENT REQUESTED
                   IDENTITY OF THE PARTIES

PETITIONER/APPELLANT:              COUNSEL:
Blanca E. Jones                    Francisco Guerrero, II
                                   SBN 24047588
                                   PENA GARCIA GUERRERO PLLC
                                   900 Kerria Avenue
                                   McAllen, TX 78501
                                   t: 956.948.2221
                                   f: 888.422.6821
                                   fg@pgglex.com

Counter-Petitioner/APPELLEE:       COUNSEL:
Helen M. Jones                     Roel “Robie” Flores
                                   The Firm of Roel “Robie” Flores
                                   3331 N. Ware Rd
                                   Mc Allen, Texas 78501
                                   t: 956.631.7188
                                   f: 956.631.7268
                                   robiefloreslaw@att.net




                               2
                  TABLE OF CONTENTS
IDENTITY OF THE PARTIES…………………………………..…….        2

TABLE OF CONTENTS……………………………………… ……..…           3

TABLE OF AUTHORITIES…………………………………………...          4

RECORD REFERENCES…………………………………………..…..           5

STATEMENT OF THE CASE………………………………………....         6

STATEMENT REGARDING ORAL ARGUMENT …………………..      7

ISSUES PRESENTED…………………………………………………..            8

STATEMENT OF FACTS……………………………………..............   9

SUMMARY OF THE ARGUMENT………………………………...…          13

ARGUMENT………………………………………………….………...               16

PRAYER……………………………………………………………..…                 39

APPENDIX…………………………………………………………..…                41




                          3
                        TABLE OF AUTHORITIES

                               STATE CASES
Brigham v. Brigham,

863 S.W.2d 761 (Tex.App.- Dallas, 1993)………………………… 35

Chavez v. Chavez,
148 S.W. 3d 449 (Tex.App.-El Paso, no pet.)……………………… 31, 34

Critz v. Critz,
297 S.W.3d 464 (Tex.App.—Fort Worth 2009, no pet.)…. 17, 18, 24, 25, 29, 34

Danet v. Bhan,
436 S.W.3d 793 (Tex. 2014)………………………..…………….. 34

Gray v. Shook,
329 S.W.3d 186 (Tex.App.-Corpus Christi 2010)…………… 30, 31, 36, 37, 38

In re S.A.H,
420 S.W.3d 911 (Tex.App.-Houston [14th] Dist., 2014)………….. 19, 22, 26

In re S.M.D,
329 S.W.3d 8 (Tex.App.-San Antonio, 2010)(reh’g overruled, rev. dism’d)…34

Lewelling v. Lewelling,
796 S.W.2d 164 (Tex.1990)……………………………………….. 29, 35, 37

May v. May,
829 S.W.2d 373 (Tex.App.-Corpus Christi 1992, writ denied)……. 30, 36, 37

Shook v. Gray,
381 S.W.3d 540 (Tex. 2012) ………………………………………. 36, 37

                            STATE STATUTES

TEX. FAM. CODE ANN. §153.002…………………………………….. 36
TEX. FAM. CODE ANN. §153.131……………………………………...23, 28, 34, 37
TEX. FAM. CODE ANN. §153.373………………………………………18, 19, 27
                                      4
                         RECORD REFERENCES
CR_        Clerk’s Record

1 RR_      Volume one of Recorder’s Record

2 RR_      Volume two of Recorder’s Record

3 RR_      Volume three of Recorder’s Record

Ex. P-_    Petitioner/Appellant’s exhibit to the Recorder’s Record

Ex. CP-_   Counter-Petitioner/Appellee’s exhibit to the Recorder’s Record




                                       5
                         STATEMENT OF THE CASE


      This appeal is taken from a final order rendered in the 206th Judicial District

Court of Hidalgo County in an action filed as a Suit Affecting Parent Child

Relationship. (CR p.110). The final order in this matter was rendered after a bench

trial held on December 17th and 18th, 2014. The Court signed Findings of Fact and

Conclusions of Law on January 28, 2015. (CR p.108). Appellant filed her Notice

of Appeal on February 17, 2015. (CR p.132).




                                         6
              STATEMENT REGARDING ORAL ARGUMENT


      This case involves the conservatorship of four children. The trial court

appointed paternal grandmother as sole managing conservator of these children,

instead of their biological mother.


      The mother of these children challenges, in this appeal, that the trial court

abused its discretion because the evidence is legally and factually insufficient to

support the trial court’s judgment as to rebuttal of the statutory presumptions in

Tex. Fam. Code §§151.131 and 151.373. Appellee failed to prove that Appellant

had 1.) voluntarily relinquished actual care, control and possession of the children

to Appellee for a period of one year or more; and/or 2.) that it would not be in the

children’s best interest to have their mother appointed sole managing conservator

because such appointment would significantly impair their physical health and

emotional development.


      Since neither the Family Code nor case law provide bright-line definitions of

the term “voluntarily relinquishment” or the term “significant impairment”,

resolution of cases such as these is fact intensive analysis. Due to the Appellant’s

challenge of the legal and factual sufficiency of the evidence in this matter, oral

argument would be most beneficial for a clear presentation of the facts and to the

court’s understanding of the facts in this case.
                                           7
                     ISSUES PRESENTED FOR REVIEW
The trial court abused its discretion in appointing Appellee as the sole managing

conservator of the children and Appellant the possessory conservator.

I.     The evidence is legally and factually insufficient to support the court’s

       Finding of Fact No. 2.

III.   The evidence is legally and factually insufficient to support the court’s

       Finding of Fact No. 4.

III.   The evidence is legally and factually insufficient to support the court’s

       Finding of Fact No. 5 that Appellee rebutted the statutory parental

       presumption in Tex. Fam. Code §153.131.

IV.    The evidence is legally and factually insufficient to support the court’s

       Finding of Fact No. 5 that Appellee rebutted the statutory parental

       presumption in Tex. Fam. Code§153.373.

V.     The court erred in its Conclusion of Law – Conservatorship because the

       evidence is legally and factually insufficient to support the conclusion that

       Appellee be appointed sole managing conservator of the children and

       Appellee should be appointed possessory conservator.




                                         8
                           STATEMENT OF FACTS
a.    Appellant was married to Appellee’s son, Larry Dean Jones, Jr.(hereinafter

“Dean” or “Appellant’s husband”), on April 29, 2011. Prior to their marriage, three

children were born to Appellant and Dean. (2RR p.102, line 19-23). The children

lived with Appellant prior to her marriage to Dean. (2RR pp.94-102). On or about

December 2012, Appellant left the United States for Mexico to complete the

immigration process which she and her husband had initiated. (CR p.15; 2RR

p.111; Ex. P-4).

b.    On or about January 2013, Appellant was denied re-entry into the United

States and had to remain in Mexico pending a new visa appointment, because the

proper documentation regarding her pregnancy with the child C.J. had not been

submitted. (CR p.15; 2RR p.111; Ex. P-4). The youngest child, C.J., was born

while Appellant resided in Mexico awaiting a subsequent visa appointment. (2RR

p.119). Meanwhile, her husband remained in the United States managing their

affairs in her absence. (2RR pp.38-39 and 46; Ex. P-4).

c.    On or about December 21, 2012, Appellee took possession of three of the

children the subject of this suit. (3RR p.35). Appellee had possession of the

children for the time period that Appellant was to be outside the United States

awaiting subsequent visa interview for her and C.J.. (2RR p.104, line 7-25 and


                                         9
3RR p.37, line 9-25). On or about March 2014, Appellant lawfully re-entered the

United States with her youngest child, C.J. (2RR p.119; Ex. P-3).

d.    Immediately upon her return, Appellant and Dean made plans to retrieve

their children from Fredericksburg, Texas where the children were living with

Appellee. (2RR p.119;). On or about April 2014, Appellant and Dean traveled to

Fredericksburg, Texas to reunite the family and return with the children to

McAllen, Texas. (2RR p.p. 120-121). Appellant, Dean, and Appellee subsequently

entered into an agreement to allow the children L.D.J. III and W.F.J. to spend time

with their grandmother, Appellee, until the end of the school year. (2RR p.p. 121)

The agreement called for the children to return to McAllen, Texas so they could

live with Appellant, her husband, and the other children A.Y.J and C.J

permanently. (2RR p.121).

e.    On or about June 2014, Dean disappeared for approximately two weeks

while on an alleged business trip. (2RR pp.122- 124). During Dean’s two-week

absence, Appellant attempted to regain possession of her children, but Appellee

refused to return the children to Appellant, in breach of their agreement. (2RR

p.126; 3RR p.p. 93-94; Ex. CP-1). Subsequently, Appellant filed for divorce in

Hidalgo County, Texas. (2RR p.125). In response to Appellant’s divorce action,

Dean filed a divorce action in Kendall County in Cause No. 14-283-CCL, styled In

the Matter of the Marriage of Larry D. Jones, Jr. and Blanca Estella Jones and In
                                        10
the Interest of L.D.J, III, A.Y.J, W.F.J. and C.J., Minor Children (herein “Dean’s

divorce action”). (3RR p.p. 95-101; Ex. P-5). The Appellee intervened in Dean’s

divorce action. (3RR p.p. 95-101; Ex. P-5)

f.      Appellant and Dean began to reconcile their marriage in the latter part of

June 2014. (2RR p. 134; Ex. P-8). Appellant and Dean eventually travelled to

Fredericksburg, Texas to regain possession of the two remaining children, L.D.J,

III and W. F. J., in an attempt to work on their marriage. (2RR p. 134). On July 3,

2014, Dean’s father drove Appellant with all her four children down to McAllen,

Texas. (2RR p. 135).

g.      On or about July 3, 2014, Appellant’s husband committed suicide in

Fredericksburg, Texas. (2RR p. 134, line 16-19).      On July 11, 2014 Appellee

sought and obtained a Writ of Attachment for all four children from the Kendall

County Court at Law pursuant to her intervention in Dean’s divorce action. (3RR

p.p. 95-101; Ex. P-5). On or about July 11, 2014, Appellee travelled from Kendall

County to McAllen, Texas and had the Writ of Attachment for all the children

executed by Hidalgo County Sheriff’s officers. (3RR p. 100, line 21-25 and p.

102).

h.      On July 16, 2015, Appellant filed the instant Suit Affecting Parent Child

Relationship, in Hidalgo County, Texas. (CR p.15). On July 25, 2014, the Kendall

County Court at Law dismissed all of Appellee’s and Dean’s actions pending
                                        11
before it for lack of jurisdiction due to Dean’s death on July 3, 2014. (Ex. P-5).

Appellee, subsequently, filed a counter-petition in the instant Suit Affecting Parent

Child Relationship. (CR p. 36).

i.      On December 17th and 18th, 2014 a bench trial was held on the parties’ Suits

Affecting Parent Child Relationship. The issues before the court were:

        (1) whether appointment of Appellant, the natural parent of the children, as

sole managing conservator of the children would not be in the best interest of the

children because the appointment would significantly impair the children’s

physical health or emotional development; and

        (2) whether Appellant voluntarily relinquished actual care, control and

possession of the children to Appellee, a nonparent, for a period of one year or

more; of which time period was not more than 90 days prior to Appellee filing suit

in the instant case.

The final judgment of the trial court appointed Appellee as the sole managing

conservator of all children made the subject of this Suit Affecting Parent Child

Relationship, and Appellant was appointed possessory conservator of her

biological children. (CR p.110)

j.      The trial court signed findings of fact and conclusions of law on January 12,

2015. (CR p.108). Appellant appeals from this final judgment. (CR p.110 and

132).
                                          12
                      SUMMARY OF THE ARGUMENT

      The Appellee, a non-parent, challenged the Appellant’s, right to be

appointed sole managing conservator of the children. To succeed in her challenge,

the Appellee had to rebut the presumption that the best interest of the children

would be best served by appointing Appellant, the natural parent, as managing

conservator. This placed a heavy burden on the Appellee, as this parental

presumption is deeply embedded in Texas law. This parental presumption is

codified in Sections 153.131 and 153.373 of the Texas Family Code.

      The Appellant’s first argument is that in order for Appellee to rebut the

parental presumption in set out in Tex. Fam. Code §153.373, the Appellee had the

burden of proving, by a preponderance of the evidence, that 1) the Appellant had

voluntarily relinquished actual care, control, and possession of the children to the

Appellee for a period of one year or more; and 2) that the appointment of the

Appellee as conservator of the children is in the best interest of the children. When

Appellant went to Mexico for processing her visa to obtain residency in the United

States, she left the children with her husband, Dean, not with the Appellee. During

her involuntary stay in Mexico, the Appellant maintained telephone contact with

the children through her husband, but had little, if any, contact with Appellee.

Further, Appellee testified that she obtained possession of the children from her

son, Appellant’s husband, not from Appellant. Additionally, Appellee further
                                         13
testified that she had no evidence that Appellant had voluntarily relinquished the

children to her.

      Appellee failed to show, by a preponderance of the evidence, that

appointment of the Appellee as sole managing conservator of the children on

voluntary relinquishment grounds would be in the children’s best interest. Thus,

the evidence is legally insufficient to support the trial court’s judgment awarding

conservatorship to Appellee on voluntary relinquishment grounds. Alternatively,

and without waiving the legal sufficiency challenge, the evidence is factually

insufficient to show that Appellee voluntarily relinquished care, control and

possession of the children for one year or more and appointment of the Appellee as

sole managing conservator of the children would be in the children’s best interest.

      The court abused its discretion in appointing Appellee as the sole managing

conservator of the children, and the court’s judgment should be reversed and

judgment rendered that Appellee be appointed the sole managing conservator of

the children. Alternatively, should the court find the evidence factually insufficient,

the trial court’s judgment should be reversed and the case remanded to the trial

court for a new trial and further fact-finding.

      The Appellant’s second argument is that in order for the Appellee to rebut

the parental presumption set out in Tex. Fam. Code §153.131, the Appellee had the

burden of showing, by a preponderance of the evidence, that appointment of the
                                          14
Appellant as sole managing conservator of the children would not be in the

children’s best interest because the appointment would significantly impair the

children's physical health or emotional development. At trial, the Appellant offered

little more than her contentions that she would be a better custodian of the children

or that she has a strong and on-going relationship with the children.

      To discharge her burden of rebutting this parental presumption to prevent

Appellee from being appointed sole managing conservator of the children, the

Appellee was required to offer evidence of specific actions or omissions of the

Appellant that demonstrate that appointing Appellant as conservator would result

in physical or emotional harm to the children. Neither the Appellee nor the

witnesses she called to testify offered any evidence that Appellant was presently

engaged in some detrimental immoral or criminal conduct of the type that this and

other Texas courts have found to pose a real, rather than a speculative, harm to a

child’s physical health or emotional development, e.g. illegal drug use, alcohol

abuse, family violence against her spouse or the children, drug dealing, neglect of a

child or other criminal activity.

      Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children would

not be in the children’s best interest because the appointment would significantly

impair the children's physical health or emotional development. Thus, the evidence
                                         15
is legally insufficient to support the trial court’s judgment awarding

conservatorship to Appellee on impairment grounds. Alternatively, and without

waiving the legally sufficiency challenge, the evidence is factually insufficient to

show that appointment of the Appellant as sole managing conservator of the

children would not be in the children’s best interest because the appointment

would significantly impair the children's physical health or emotional

development.

Therefore, the evidence is legally and factually insufficient to support the trial

court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in

appointing Appellee as sole managing conservator of the children on voluntary

relinquishment grounds.

                                  ARGUMENT

      The following issues and sub-issues are joined in this part of the argument

because they are related to the trial court’s finding of facts that Appellee rebutted

the statutory parental presumption in Tex. Fam. Code §153.373.

Issue No. 1.       The trial court abused its discretion in appointing Appellee

      as the sole managing conservator and Appellant possessory conservator

      of the children.

Issue No. 2.       The evidence is legally and factually insufficient to support

      the court’s Finding of Fact No. 2.
                                         16
Issue No. 3.       The evidence is legally and factually insufficient to support

      the court’s Finding of Fact No. 4.

Issue No. 4.       The evidence is legally and factually insufficient to support

      the court’s finding of fact No. 5 that the Appellee had rebutted the

      statutory parental presumption in Tex. Fam. Code §153.373.

Issue No. 5.       The court erred in its Conclusion of Law – Conservatorship

      because the evidence is legally and factually insufficient to support the

      conclusion that Appellee be appointed sole managing conservator of the

      children and Appellee should be appointed possessory conservator.

                            Arguments & Authorities


A.    Standard of Review

      A trial court’s decision regarding the conservatorship of a child is reviewed

under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464, 469 (Tex.

App.--Fort Worth, 2009). In an abuse of discretion review, legal and factual

insufficiency are not independent grounds for asserting error, but are merely

relevant factors in assessing whether a trial court abused its discretion. Id. at 473.

In applying the abuse of discretion standard, an appellate court in a family law case

must apply a two-prong analysis: (1) whether the trial court had sufficient evidence




                                         17
upon which to exercise its discretion; and (2) whether the trial court erred in

applying its discretion. Id.

B.        Voluntary Relinquishment of the Children for One Year or More.

          In order for Appellee to rebut the parental presumption set out in TEX. FAM.

CODE §153.3731, the Appellee had the burden of showing, by a preponderance of

the evidence, that 1) the Appellant had voluntarily relinquished actual care,

control, and possession of the children to the Appellee for a period of one year or

more; and 2) that the appointment of the Appellee as conservator of the children is

in the best interest of the children. Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.--

Fort Worth, 2009).

          The trial court found that Appellant had voluntarily relinquished the actual

care, control and possession of the children to the Appellee for a period of six

months or more. (CR pp. 108, Finding of Fact Nos. 2). The evidence is legally

and factually insufficient to support the trial court’s finding of fact that Appellee

rebutted the parental presumption in TEX. FAM. CODE §153.373 on grounds that

Appellant had voluntarily relinquished the actual care, control and possession of



1
    Sec. 153.373. VOLUNTARY SURRENDER OF POSSESSION REBUTS PARENTAL PRESUMPTION. The
    presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the
    court finds that:
    (1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent,
    licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was
    within 90 days preceding the date of intervention in or filing of the suit; and
    (2) the appointment of the nonparent or agency as managing conservator is in the best interest of the child.
                                                          18
the children to the Appellee for a year or more. See (CR pp. 108-109, Finding of

Fact Nos. 2, 4, 5).    Although, the evidence shows that the children were in

Appellee’s possession, the Appellant contends that such possession was not the

result of her having voluntarily relinquished the actual care, control and possession

of her children to the Appellee.

What is Voluntary Relinquishment?

      The Family Code does not define “voluntarily relinquish” as that term is

used in section 153.373. However, at least one court has recently construed

“voluntary relinquishment” as meaning “to give up by one’s own free will.” See In

re S.A.H., 420 S.W.3d 911, 922 (Tex. App. --Houston [14th ] Dist., 2014). To

prove voluntary relinquishment, Appellee carries the burden of proving that

Appellant placed L.D.J. III, A.Y.J., W.F.J. and C.J. into Appellee’s care and

possession during on or after December 2012 of her own free will “without any

legal obligation or other external compulsion to do so.” In re S.A.H., 420 S.W.3d

911, 923 (Tex. App. –Houston [14th ] Dist., 2014).

Evidence of Voluntary Relinquishment Offered at Trial:

      At trial, Appellee sought to prove that Appellant had relinquished actual

care, control and possession of her biological children, L.D.J, III, A.Y.J, and




                                         19
W.F.J, on December 21, 2012. Appellee avers in her sworn petition that Appellant

had “voluntarily relinquished” the children to her on December 21, 2012. (CR

p.36). Yet, at trial, Appellee testified that it was, actually, her son, Dean

(Appellant’s husband) who had delivered possession of L.D.J, III, A.Y.J, and

W.F.J to her on December 21, 2012 (3RR pp. 35-37).

           Appellee testified that she was doing what her son wished her to do. (3RR

pp. 34-37) In connection with this testimony, Appellee referred to her son’s will

and a power of attorney that he had executed as his wishes for her to remain the

conservator of his children after his death. (3RR pp. 35-37; Ex. P-7; Ex. CP-7).

Yet, these instruments are only evidence that Appellant’s husband - the person to

whom Appellant had entrusted her children2 and the person from whom Appellee

received possession of the children3 – was still exercising control and care of the

children by planning for their future. Dean’s will and power of attorney were not

an immediate granting of rights to the children to Appellee, as Appellee contended

at trial, but rather a conditional grant of rights in the future.

           Appellant entrusted the care, control, and possession of the children to her

husband when she departed to Mexico, and she also sought to exercise some care



2
    (2RR p. 38, line 12-25, p. 39-44, and p.46, line 5-19).
3
    (3RR pp. 35-37).

                                                              20
and control of children, while she was involuntarily outside the United States, by

requesting that Dean bring the children to visit her in Mexico. (2RR p.28, line 18-

23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). Appellant’s requests to have

her children travel into Mexico to visit her were denied by her husband because he

feared for the children’s safety. (2RR pp.117, line 5-25 and 118, line 1-11).

Appellant’s husband controlled the line of communication between Appellant and

the children, and he exercised control over the children in Appellant’s absence.

(2RR p. 32, line 19). The Appellant communicated with the children via telephone,

in two ways: 1) Dean would call her from Fredericksburg and put the children on

the phone to talk the Appellant ; and 2) when Dean visited her in Mexico, he would

call the Appellee and ask that the children be put on the phone so they could talk

with Appellant. (2RR pp.39-44). This is further evidence of the control that Dean

maintained over their children while Appellant was unable to lawfully enter the

United States. (2RR p. 92, line 1-22, pp. 107-109; 3RR pp. 36-37; Ex. P-4, page

15). It is also evidence that Appellant was exercising parental care and control

over the children. This also begs a very pivotal question: if in fact, Appellant had

voluntarily relinquished the care, control, and possession of the children to

Appellee, wouldn’t she have been contacting Appellee, rather than Dean, to have

the children visit her in Mexico?


                                        21
        The will and power of attorney executed by Appellant’s husband, without

Appellant’s knowledge and consent, were the memorialization of the control over

their children he maintained throughout the time Appellant was outside the United

States. These documents prove how he maintained control over their children’s

future, if upon leaving the United States he was not to return during this

immigration process due to an occurrence outside his control. (3RR pp. 36-37)

        On cross-examination, Appellee testified that she had no direct evidence that

proved Appellant had voluntarily relinquished the children to her other than her

assumption that the preparation of the children’s bags by Appellant for their

departure with Appellee in December 2012 was evidence of Appellant’s intent to

voluntarily relinquish actual care, control and possession of the children to her.

(3RR pp. 77-79). Appellee admits that the possession she enjoyed during the time

Appellant was to be outside the country was temporary pending Appellant’s return

to the United States. (3RR p. 37, line 9-25). There is no evidence of any agreement

between Appellant and Appellee, either oral or written, whereby Appellee

relinquished voluntary care, control, and possession of the children to Appellee4.

See, e.g., In re S.A.H., 420 S.W.3d 911, 914 and 924 (2014) (mother’s granting of


4
   Even assuming, arguendo, that any agreement made by Dean with Appellee could be imputed to Appellant, the
evidence militates against even Dean having voluntarily relinquished care, control, and possession of the children to
Appellee, as the evidence reveals an indicia of parenting on his part with respect to the children.


                                                        22
power of attorney over child to great aunt evidenced voluntary relinquishment).

The evidence shows that Appellant and Appellee had little to no communication

with one another before and after Appellant left the United States. (2RR pp. 39-44,

p.46, line 5-19, p.102, line 13-18, p.118, line 1-25; 3RR pp. 84-87). The only

evidence in the record that can be directly attributed to Appellant having agreed to

Appellee having possession of the children is when Appellee “begged” for the

children to stay with her after Appellant and Dean travelled to Fredericksburg in

April of 2014 to retrieve the children. (3RR p. 45, line 11-25), and Appellant and

Dean agreed to the children staying with Appellee until the end of the school year.

(2RR p.p. 121).

No Evidence of Voluntary Relinquishment

      Thus, while Appellant may have been physically apart from L.D.J. III,

W.F.J., and A.Y.J. for all of 2014, there is no evidence that she gave up, by her

own free will, the care, custody, and possession of the children to the Appellee. In

particular, there is no evidence that Appellee ever had possession of C.J., prior to

this suit being filed. She did not obtain possession of C.J. until she obtained such

possession through the Writ of Attachment issued by the Kendall County Court.

See TEX. FAM. CODE §153.131.

      Assuming, arguendo, that Appellant had made some agreement with

Appellee to have Appellee care for the children while Appellant went to Mexico to
                                        23
take care of her visa matter, this case would be analogous to Critz v. Critz, 297

S.W.3d 464 (Tex.App.-Fort Worth 2009, no pet.). In Critz v. Critz, the

grandparents of a child were awarded joint managing conservatorship of a child

that they alleged had been voluntarily relinquished to them by the biological

mother of the child for one year or more. Critz v. Critz, 297 S.W.3d 464

(Tex.App.-Fort Worth 2009, no pet.). The Critz Court determined that even in light

of some evidence of separation from the child on the part of the mother for over a

period of one year, there still lacked the relinquishment of control of the child

given her periodic contact with him. Critz, 297 S.W.3d at 474.

      In the instant case, Appellant was involuntarily prevented from returning to

the United States which caused her to be away from the children that she had left

in her husband’s care. (2RR p.28, line 18-23, p.32, line 19, p.37, line 23-25, pp.

39-44, p.46). Yet, she periodically spoke with her children and discussed their

well-being with her husband, the children’s parent with access to them while she

resided in Mexico. (2RR pp.39-44). Appellant’s husband limited her access to the

children further by denying her requests to have her children brought to her while

she resided outside the United States. (2RR pp. 39-44, p.46, line 5-19, p.102, line

13-18, p.118, line 1-25; 3RR pp. 84-87). Additionally, Appellant requested her

children be returned to her in April 2014 when she and her husband travelled to


                                        24
Fredericksburg, Texas to retrieve the children from Appellee; which was

acknowledged by Appellee. (2RR pp.120-121; 3RR p. 45, line 11-25).

      As in Critz, the evidence of voluntary relinquishment of the children is not

present in this case. Appellant maintained as much contact with her children as she

had been accustomed to given the great efforts her husband undertook in caring for

their children in her absence, and the impossibility of her physical presence within

the United States given the fragile nature of her immigration status. (2RR p.28, line

18-23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). In Critz, the Court found

sufficient contact with the child by the mother and that she had requested return of

her child. Critz v. Critz, 297 S.W.3d at 474 & n.39 (voluntary relinquishment

ended when mother filed answer to conservatorship petition). Assuming, arguendo,

that Appellant had delivered possession of the children to Appellee rather than to

her husband, Dean, when she left for Mexico, such act could not be deemed an act

of free will. Appellant’s inability to physically take possession of her children and

care for them as she had done prior to her departure was not a completely

voluntary decision by her but rather a product of an external compulsion, i.e.,

having to leave to take care of her visa matter. This should be considered when

determining whether Appellee’s physical possession of the children was truly an

act of voluntary relinquishment by Appellant of her children. (2RR p.28, line 18-

23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46; Ex. P-). See In re S.A.H., 420
                                         25
S.W.3d 911, 922 (Tex. App. --Houston [14th ] Dist., 2014)(relinquishment must be

an act of free will done without any legal obligation or other external compulsion

to do so). To require Appellant to have unlawfully entered the United States to visit

and care for the children in order to be able to defeat Appellee’s conservatorship

action would be unreasonable because for her to do so would jeopardize her ability

to lawfully reside within the United States in accordance with federal law. This

would assure that Appellee could now use this unlawful act against the Appellant

to rebut the parental presumption in Tex. Fam. Code §153.131.

      Further, there is no evidence that Appellee ever had possession of the

youngest child, C.J., at any time prior to July 11, 2014 when she sought and

obtained a Writ of Attachment for all four children from a Kendall County court.

(3RR pp. 95-101; Ex. P-5). Nor did Appellee proffer any evidence that she had

filed any action to assert her rights to the children prior to Appellant and her

husband travelling to Fredericksburg, Texas to pick up their children. Additionally,

there was no evidence proffered by Appellee that she had any relationship with the

child, C.J., after she was born in Mexico. In fact, Appellee provided no evidence

that she sent gifts, cards, care packages or the like to her new granddaughter

outside the United States. There was no evidence she ever inquired as to the health

or well-being of this child. The record is devoid of any evidence that she had the

possibility to assert any claim of conservatorship to this child, due to fact that she
                                         26
did not possess the child the requisite time period prior to the institution of the

instant cause. (CR p. 59) See Tex. Fam. Code §153. 373.

      Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children on this

relinquishment ground would be in the children’s best interest, thus the evidence is

legally insufficient to support the trial court’s Finding of Fact Nos. 2, 4, and 5 (CR,

pp. 108-109). Alternatively, the evidence is factually insufficient, as the great

weight of the evidence is against any voluntary action or omission on Appellant’s

part in voluntarily relinquishing actual care, control and possession to any other

person aside from her husband. (2RR p.28, line 18-23, p.30, line 22-24, p. 31, line

8-10, p.32 line 19, p.38, line 12-25 and p.46, line 5-19).

      The trial court abused its discretion in appointing Appellee as sole managing

conservator of the children on grounds of voluntary relinquishment because the

evidence is legally and factually insufficient to establish that Appellant had

voluntarily relinquished the care, control, and possession of the children to

Appellee.

      Therefore, the court abused its discretion in appointing Appellee as the sole

managing conservator of the children, and the court’s judgment should be reversed

and judgment rendered that Appellee be appointed the sole managing conservator

of the children. Alternatively, should the court find the evidence factually
                                          27
insufficient, the trial court’s judgment should be reversed and the case remanded to

the trial court for a new trial and further fact-finding.

                                ARGUMENT (cont’d)

      The following issues and sub-issues are joined in this part of the argument

because they are related to the trial court’s finding of facts that Appellee rebutted

the statutory parental presumption in TEX. FAM. CODE §153.131.

Issue No. 6.        The trial court abused its discretion in appointing Appellee

      as the sole managing conservator and Appellant possessory conservator

      of the children.

Issue No. 7. The evidence is legally and factually insufficient to support the

      court’s Finding of Fact No. 2.

Issue No. 8.        The evidence is legally and factually insufficient to support

      the court’s Finding of Fact No. 4.

Issue No. 9.        The evidence is legally and factually insufficient to support

      the court’s finding of fact No. 5 that Appellee rebutted the statutory

      parental presumption in Tex. Fam. Code §153.131.

Issue No. 10.       The court erred in its Conclusion of Law – Conservatorship

      because the evidence is legally and factually insufficient to support the

      conclusion that Appellee be appointed sole managing conservator of the

      children and Appellee should be appointed possessory conservator.
                                           28
                                    Arguments & Authorities

A.    Standard of Review

      A trial court trial court’s decision regarding the conservatorship of a child is

reviewed under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464,

469 (Tex. App.--Fort Worth, 2009). In an abuse of discretion review, legal and

factual insufficiency are not independent grounds for asserting error, but are

merely relevant factors in assessing whether a trial court abused its discretion. Id.

at 473. In applying the abuse of discretion standard, an appellate court in a family

law case must apply a two-prong analysis: (1) whether the trial court had sufficient

evidence upon which to exercise its discretion; and (2) whether the trial court erred

in applying its discretion. Id.

B.    Impairment of Children’s Physical Health or Emotional Development

      “The presumption that the best interest of a child is served by awarding

custody to a natural parent is deeply embedded in Texas law.” Lewelling v.

Lewelling, 796 S.W.2d 164, 166 (Tex.1990). Therefore, section 153.1315 of the


5
      Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED MANAGING CONSERVATOR.
      (a) Subject to the prohibition in Section 153.004, unless the court finds that appointment of the parent or
      parents would not be in the best interest of the child because the appointment would significantly impair the
      child's physical health or emotional development, a parent shall be appointed sole managing conservator or
      both parents shall be appointed as joint managing conservators of the child.

      (b) It 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. A finding of a history of family violence involving the
      parents of a child removes the presumption under this subsection.

                                                      29
Texas Family Code requires that the parent be appointed sole managing

conservator or both parents be appointed joint managing conservators unless the

nonparent proves by a preponderance of the credible evidence 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....” Tex. Fam.Code Ann. § 153.131 (Vernon 2008); Gray v. Shook,

329 S.W.3d 186, 196 (Tex.App.-Corpus Christi 2010). The Family Code's

presumption in favor of parental custody places a “heavy burden on a nonparent

seeking custody.” May v. May, 829 S.W.2d 373, 376 (Tex.App.-Corpus Christi

1992, writ denied). To rebut the presumption, “the evidence must support a logical

inference that some specific, identifiable behavior or conduct of the parent will

probably cause significant physical or emotional harm to the child.” Id. at 377.

Any “close call” must be resolved in favor of the parent over the nonparent. Gray

v. Shook, 329 S.W.3d at 196 (citing Chavez v. Chavez, 148 S.W.3d 449, 459

(Tex.App.-El Paso 2004, no pet.)).

Evidence of Impairment of Children’s Physical Health or Emotional
Development Offered at Trial:
      In addition to her testimony, Appellee called two witnesses in an attempt to

prove that Appellant was an unfit parent. The first witness that Appellee called to




                                        30
testify about the Appellant was Evelia Salinas. Ms. Salinas’ testified about events

that had occurred about 3 or 4 years prior to the trial date, and had little to no

bearing on Appellant’s ability to care for her children. (2RR p. 153, line 6-10). Ms.

Salinas’ testimony can be summarized, as follows: 1) that she had been around

Appellant and her children approximately four or five times in the year 2011. (2RR

p. 153, line 6-10); 2) that she believed her brother in law acted inappropriately

with Appellant at a party; and 3)         that she believed Appellant was a devil

worshipper because of some ring that Appellant was wearing symbolizing a cult

religion commonly referred to as “La Santa Muerte”. (2RR pp.153-177).

However, Ms. Salinas’ testimony did not encompass Appellant having any

problems with alcohol, drugs, criminal convictions or a known history of family

violence. (2RR pp.153-177). On cross-examination, Ms. Salinas admitted not

having any personal knowledge about Appellant’s current abilities to care for her

children or religious beliefs at the time of trial. (2RR pp.171-177). Most

importantly, Ms. Salinas’ testimony offered no evidence of any specific,

identifiable behavior, conduct or omissions of the parent that would, to a

reasonable degree of certainty, probably cause significant impairment to the

children’s physical or emotional development. (2RR pp.153-177); See Gray v.

Shook, 329 S.W.3d at 196 (evidence of harm must rise above mere speculation and

be attributable to a specific, identifiable act or omission of the parent).
                                           31
      The second witness called by the Appellee was Herminia Martinez. Ms.

Martinez offered less evidence than Ms. Salinas of any harm that would come to

the children if Appellant would be appointed their sole managing conservator.

(3RR pp.5-19). Mrs. Martinez testified to knowing Appellee for over twenty years

and knew her both personally and professionally. (3RR p.5-10). Yet, Mrs.

Martinez had no personal knowledge of Appellant’s parenting abilities nor did she

ever witness Appellant around Appellant’s children. (3RR p. 17, line 15-20). She

testified that her personal knowledge was limited to Appellee’s interaction with the

children and served to simply bolster Appellee’s capability of being a good

caretaker of the children. (3RR p. 17, line 5-20). Mrs. Martinez’ confirmed the

lack of communication Appellee had with Appellant before and after she left the

United States, and that Appellant’s husband communicated with Appellee

regarding the children. (3RR pp.15-16). Mrs. Martinez offered no evidence of

Appellant’s use or abuse of alcohol or drugs, no evidence of a criminal history, and

no evidence of any history of family violence. (3RR pp.5-19). Ms. Martinez

testimony about Appellee being a capable caretaker of the children does nothing to

rebut the parental presumption requiring that Appellant be appointed the sole

managing conservator of the children. The Appellee, as non-parent, has the burden

to show that appointment of the Appellant parent as managing conservator would

significantly impair the child, either physically or emotionally, is not met by
                                        32
evidence that shows she would be a better custodian of the child or that she has a

strong and on-going relationship with the child; further, evidence of past

misconduct alone is insufficient. In re S.M.D. 329 S.W.3d 8 (Tex. App. – San

Antonio, 2010)(reh’g overruled, rev. dism’d).

      Appellee testified but offered no evidence that proved that Appellant’s

appointment as sole managing conservator of the children would have significantly

impaired the children’s physical health or emotional development. (3RR pp. 20-

122). Appellee testified that she had no evidence of Appellant directly

relinquishing the children to her. (3RR pp.77-79, p.117, line 22-25 and p. 118).

Appellee’s testimony provides no evidence that Appellant used or abused alcohol

or drugs, whether she had a criminal record, and/or a history of family violence.

(3RR p.65). Appellee’s testimony does nothing more than solidify that her only

motive in this suit was to prevent Appellant from having sole managing

conservatorship of her children because of an unsubstantiated belief that Appellant

had a hand in her son’s death and is an unfit mother, generally. (3RR pp. 66-67,

pp.70-71, pp. 93-95, pp.105-107, pp. 110-113, pp. 115-118, p.121). Yet, Appellee

could not provide direct evidence of the source of her misguided opinion, nor did

she provide any evidence that these beliefs were a legitimate concern for the trial

court. Appellee did not meet the legally or factually sufficient threshold of

evidence required to prove by a preponderance of such evidence that Appellant’s
                                        33
appointment as sole managing conservator of her biological children would

significantly impair the physical health or emotional development of these

children. Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014), Critz v. Critz, 297

S.W.3d 464, 470 (Tex.App.-Fort Worth 2009, no pet.), Chavez v. Chavez, 148

S.W. 3d 449, 459-60 (Tex.App.-El Paso, no pet.), See, also, Tex. Fam. Code Ann.

§153.131.

      The only evidence of Appellant’s capability of caring for her children and

being an active caretaker was provided by the witness, Rose Lerma. (3RR p.129)

Ms. Lerma helped Appellant from April 2014 until July 2014 with her children and

the general day to day task of keep her home in order. (3RR p.131-132). Ms.

Lerma testified the Appellant was a great mother and was a great caretaker of her

children. (3RR pp.133-135). Ms. Lerma also testified that she never witnessed any

violence on the part of Appellant, nor did she witness any use of drugs or alcohol

the entire time she worked for her. (3RR pp. 133-135). Ms. Lerma also testified

that Appellant had stayed a considerable amount of time with her family in Mexico

and knew her to be a good person. (3RR p.130). The reason she ceased her

employment with Appellant was due to the children being removed from

Appellant’s home on July 11, 2014 by Appellee. (3RR p.133). This witness

provided the most insight as to Appellant’s ability as a parent and a mother to the

children in this suit in relation to the time period that these issues were being
                                        34
litigated. The testimony of all Appellee’s witnesses was diminished with the honest

and unbiased testimony offered by Ms. Lerma. She clearly and unequivocally

voiced her opinion of Appellant as a capable mother that loved her children. (3RR

pp.129-136).

      To discharge her burden of rebutting this parental presumption to prevent

Appellant from being appointed sole managing conservator of the children, the

Appellee was required to offer evidence of specific actions or omissions of the

Appellant that demonstrate that appointing Appellant as conservator would result

in physical or emotional harm to the children. Lewelling v. Lewelling, 796 S.W.2d

164 (Tex. 1990); Brigham v. Brigham 863 S.W.2d 761 (Tex.App.- Dallas,

1993)(citing Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990)).

       The Appellee offered no evidence that Appellant was presently engaged in

some detrimental immoral or criminal conduct that this and other Texas courts

have found to pose a real, rather than a speculative, harm to a child’s physical

health or emotional development, e.g. illegal drug use, alcohol abuse, family

violence against her spouse or the children, drug dealing, or other criminal activity.

May v. May, 829 S.W.2d 373, 376 (Tex. App.-Corpus Christi 1992, writ denied;

see, e.g. Compton v. Pfannenstiel, 428 S.W.3d 881 (Tex. App.--Houston [1st Dist.]

2014)(mother’s drug-dealing, neglect and physical abuse of children would result

in physical or emotional harm to children). The trial court erred in finding that
                                         35
Appellant’s appointment as sole managing conservator was not in the children’s

best interest, particularly in light of the legally and factually insufficient evidence

at trial on this issue. Shook v. Gray, 381 S.W.3d 540 (Tex. 2012), See, TEX. FAM.

CODE ANN. §153.002.

      Gray v. Shook, 329 S.W.3d 186, (Tex.App.-Corpus Christi 2010) should set

the standard for deciding whether appointing Appellant as sole managing

conservator will impair the children’s physical or emotional development. In Gray,

this honorable court reversed the trial court on the grounds that the trial court had

abused its discretion in appointing a grandmother sole managing conservator of the

child made the subject of the underlying suit in that case, in light of the absence of

a preponderance of the evidence that father’s appointment as managing

conservator of the child would significantly impair the child’s physical health or

emotional development. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus

Christi 2010, rev’d). This Court found that the potential for future harm and the

lack of present harm were insufficient to substantiate a finding of fact or

conclusion of law that the parent’s appointment as sole managing conservator

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

when that speculative harm was simply “uprooting” the child from their present

residence. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010,

rev’d)(citing May v. May, 829 S.W.2d 373, 376-77 (Tex.App.-Corpus Christi
                                          36
1992, writ denied), See also, Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.

1990). This court quoted the Texas Supreme Court’s holding in Lewelling v.

Lewelling that “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”

would be required to be established by a preponderance of the evidence by the

nonparent to meet the standard of proof under TEX. FAM. CODE ANN. §153.131. Id.

The Supreme Court in Shook affirmed the holding by this court regarding the lack

of legally and factually sufficient evidence proffered at trial by the nonparent.

Shook v. Gray, 381 S.W.3d 540, 543 (Tex. 2012). The Supreme Court agreed with

this court’s analysis of the evidence and agreed with remanding the case back to

the trial court for a hearing on conservatorship. Id. In the instant case, the record is

devoid of any evidence that Appellant posed an actual danger to her children or

that future harm would be a concern, if Appellant were to be appointed sole

managing conservator of her children. (3RR p.117, line 22-25 and p. 118). This

court should find as it did in Gray that the trial court abused its discretion in

appointing Appellee sole managing conservator of all four children, without legally

and factually sufficient evidence to support its Findings of Fact Nos. 2, 4 and 5.

Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010, rev’d).

      Thus, Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children would
                                          37
not be in the children’s best interest because the appointment would significantly

impair the children's physical health or emotional development. Alternatively, and

without waiving the legally sufficiency challenge, the evidence is factually

insufficient to show that appointment of the Appellant as sole managing

conservator of the children would not be in the children’s best interest because the

appointment would significantly impair the children's physical health or emotional

development.

       Therefore, the evidence is legally and factually insufficient to support the

trial court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in

appointing Appellee as sole managing conservator of the children on voluntary

relinquishment grounds. The court erred in not making findings of facts which

demonstrated Appellant’s voluntary relinquishment that would support these

Findings of Fact Nos. 2, 4 and 5.

      The evidence presented by the Appellee to rebut the parental presumption

through either voluntary relinquishment or significant impairment grounds is

legally and factually insufficient to support the trial court’s findings of fact. Thus,

the trial court’s judgment should be reversed and judgment rendered for Appellant.

Alternatively, should the court find the evidence factually insufficient, the trial

court’s judgment should be reversed and the case remanded to the trial court for a

new trial and further fact-finding.
                                          38
                                      PRAYER


             Appellant requests this Court consider the issues presented for review

and that upon such consideration that the trial court’s judgment should be reversed

and judgment rendered for Appellant. Alternatively, should the court find the

evidence factually insufficient, the trial court’s judgment should be reversed and

the case remanded to the trial court for a new trial and further fact-finding.




                       CERTIFICATE OF COMPLIANCE


      Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby certify

that this brief contains 7,542 words (excluding the caption, table of contents, table

of authorities, signature, proof of service, certification and certificate of

compliance). This is a computer-generated document created in Microsoft Word,

using 14-point typeface for all text, except for footnoted which are 12-point

typeface. In making this certificate of compliance, I am relying on the word count

provided by the software used to prepare the document.




                                          39
                                              Respectfully submitted,
                                              PEÑA GARCIA GUERRERO PLLC
                                              900 Kerria Avenue
                                              McAllen, TX 78501
                                              t: 956.948.2221
                                              f: 888.422.6821

                                        By: /s/ Francisco Guerrero II
                                            Francisco Guerrero, II
                                            SBN 24047588
                                            fg@pgglex.com
                                            ATTORNEY FOR APPELLANT


                         CERTIFICATE OF SERVICE

      I, Francisco Guerrero II, certify that a true and correct copy of the foregoing
APPELLANT’S BRIEF was served on opposing counsel in accordance with the
Texas Rules of Appellate Procedure 9.5 on the 21th day of July 2015

VIA FAX

The Firm of Roel "Robie" Flores
3331 N. Ware Rd
Mc Allen, Texas 78501
Ph. (956) 631-7188
Fx. (956) 631-7268
robiefloreslaw@att.net
                                              /s/ Francisco Guerrero II
                                              Francisco Guerrero II




                                         40
                                   APPENDIX


Tab No. 1 – Trial court’s final judgment


Tab No. 2 – Trial court’s findings of fact and conclusions of law


Tab No. 3 – Critz v. Critz


Tab No. 4 – Gray v. Shook


Tab No. 5 – Shook v. Gray




                                           41
                                 Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



                                         297 S.W.3d 464
       Shelley Durrell Haines CRITZ and Roger Allen Critz, Appellant/Cross-Appellant,
                                                v.
   Roger Allen CRITZ, Joseph C. Critz, and Sharon A. Critz and Shelley Durrell Haines Critz,
                                    Appellees/Cross-Appellee.
                                        No. 2-08-015-CV.
                             Court of Appeals of Texas, Fort Worth.
                                      September 17, 2009.
                                        [297 S.W.3d 467]
    Jacquelyn A. Flynt, Monique Lopez-Hinkley, Leagl Aid of Northwest Texas, Fort Worth, TX,
                                for Shelley Durrell Haines Critz.
                          Jeremy C. Martin, Dallas, TX, for Roger C. Critz.
       Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, TX, Sarraine S.
 Krause, Law Office of Sarraine S. Krause, Fort Worth, TX, for Joseph C. Critz, Sharon A. Critz.
                      Panel: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.
                                            OPINION
                                    JOHN CAYCE, Chief Justice.


     Appellant Shelley Durrell Haines Critz                   remainder of 2004, Shelley was hospitalized due
complains of the trial court's final decree of                to complications from her pregnancy. She saw
divorce appointing appellees Joseph C. Critz and              Ryder one day in September, two days in
Sharon A. Critz as joint managing conservators                October, no days in November, and three days in
of Ryder Critz. We reverse and remand.                        December. She also kept in contact with him by
                                                              phone. During Christmas, she drove to the
I. Background                                                 Grandparents' house to see Ryder but she
                                                              became sick on the return trip and miscarried.
      Roger and Shelley Critz met while they
were both working at a nightclub in the early                       On January 27, 2005, Roger filed an
1990s. In February 1998, Shelley gave birth to                original petition for divorce requesting that he be
their only child, Ryder, and in September of that             appointed primary joint managing conservator of
year, Shelley and Roger married.                              Ryder. The same day, the Grandparents filed a
                                                              petition intervening into the divorce suit seeking
      In February 2003, after an argument about               primary joint managing conservatorship on the
Roger's alleged drug use, Roger moved out of                  grounds that Roger and Shelley had voluntarily
their house. Shelley remained in the house with               abandoned Ryder, and that appointing Roger or
Ryder for another six months before she learned               Shelley as a primary conservator would
that it was being foreclosed.                                 significantly impair Ryder's physical health or
     Both Shelley and Ryder eventually moved                  emotional development.
in with Roger's parents, Joseph and Sharon Critz                   Shelley filed answers to the petitions, along
(the Grandparents). While Shelley and Ryder                   with a counterpetition for divorce
were living with the Grandparents, Shelley met
and began dating Chris Martinez. In January of                [297 S.W.3d 468]
2004, she began staying with Chris and away
from the Grandparents' house on weekends. In                  requesting that she be appointed sole managing
May 2004, Shelley became pregnant with                        conservator, and contending that appointment of
Chris's child.                                                the Grandparents or Roger as joint managing
                                                              conservators would not be in Ryder's best
    In June 2004, Shelley moved in with Chris                 interests.
and his parents while Ryder continued to stay
with his Grandparents. During much of the


                                                                                                             -1-
                                   Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



     On May 12, 2005, the trial court issued                    insufficient to support the trial court's
temporary orders that gave the Grandparents                     conservatorship decision, and she requested the
primary custody of Ryder, and delineated                        court to issue findings of fact and conclusions of
specific times when Shelley and Roger had                       law related to its decree.3 The Grandparents
rights to possession.                                           responded to the motion for new trial and
                                                                submitted proposed findings of fact and
     In November 2006, Todd Maslow, a                           conclusions of law, which the trial court
caseworker for Family Court Services,                           adopted. In the court's findings of fact, the court
submitted a social study report recommending                    found that the Grandparents "rebutted the
that Ryder should continue to reside with the                   parental presumption" and that it was in Ryder's
Grandparents, but that he should continue to see                best interest that the Grandparents, Shelley, and
Shelley as much as possible.                                    Roger      be     appointed     joint    managing
                                                                conservators. This appeal and cross-appeal
     In March 2007, the Grandparents filed a                    followed.
"parenting plan" for Ryder, which intended to
"establish guidelines," "state the importance of                II. Issues on Appeal
[Ryder's] well being," and "establish goals for
emotional support, education, and discipline."                        Shelley complains of the trial court's order
The parenting plan described their intentions for               appointing the Grandparents as joint managing
Ryder's education (including plans related to his               conservators of Ryder. She contends that the
ADHD),1 his after-school care, his medical                      trial court erred in failing to make specific
needs (including a list of health care providers                findings of fact identifying the basis for its
he would use), and Roger's and Shelley's                        conclusion that the
proposed roles. The plan proposed that they,
Shelley, and Roger all be appointed as joint                    [297 S.W.3d 469]
managing conservators, that the Grandparents
should establish his primary residence, and that                parental presumption was rebutted by the
Shelley and Roger should have designated times                  Grandparents. She further contends that the
of possession, including times during the                       evidence is legally and factually insufficient to
summer and on holidays.                                         prove that she relinquished control of Ryder for
                                                                more than one year and that she would
      The issues regarding Ryder's custody were                 significantly impair Ryder's physical or
tried before the trial court in March 2007. After               emotional well-being. Roger complains of the
the parties rested and counsel made closing                     trial court's failure to specify his periods of
arguments, on March 30, 2007, the trial court                   possession and access.
appointed the Grandparents, Shelley, and Roger
as joint managing conservators of Ryder, with                         A. Standard of Review
the Grandparents having primary possession and                        A trial court's decision regarding the
the authority to establish his permanent                        conservatorship of a child is reviewed under an
residence. The trial court set particular dates and             abuse of discretion standard.4 To determine
times for Shelley to have access to Ryder, but                  whether a trial court abused its discretion, we
stated that Roger would have such access only                   must decide whether the trial court acted without
"at such times as is agreed upon" between him                   reference to any guiding rules or principles; in
and his parents. In October 2007, the trial judge               other words, we must decide whether the act was
signed a final decree of divorce that incorporated              arbitrary or unreasonable.5 Merely because a
these decisions.2                                               trial court may decide a matter within its
     In November 2007, Shelley filed a motion                   discretion in a different manner than an appellate
for new trial, asserting that the evidence                      court would in a similar circumstance does not
presented at trial was legally and factually


                                                                                                               -2-
                                   Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



demonstrate that an abuse of discretion has                               [t]he presumption that a parent
occurred.6                                                                should be appointed or retained
                                                                          as managing conservator of the
     An abuse of discretion does not occur                                child is rebutted if the court
where the trial court bases its decision on                               finds that:
conflicting evidence.7 Furthermore, an abuse of
discretion does not occur as long as some                                 (1) the parent has voluntarily
evidence of substantive and probative character                           relinquished actual care, control,
exists to support the trial court's decision.8                            and possession of the child to a
                                                                          nonparent,      licensed    child-
     B. The Parental Presumption                                          placing agency, or authorized
                                                                          agency for a period of one year
     In her first issue, Shelley contends that the                        or more, a portion of which was
trial court abused its discretion when it                                 within 90 days preceding the
appointed the Grandparents as joint managing                              date of intervention in or filing
conservators of Ryder without making specific                             of the suit; and
findings related to the parental presumption
described by sections 153.131 and 153.373 of                              (2) the appointment of the
the family code.9 Section 153.131 provides:                               nonparent      or     agency  as
                                                                          managing conservator is in the
        (a) Subject to the prohibition in                                 best interest of the child.12
        Section 153.004,10 unless the
        court finds that appointment of                              Collectively, these statutes provide that it is
        the parent or parents would not                         presumed that the appointment of "the parents of
        be in the best interest of the                          a child" as joint managing conservators is in the
        child because the appointment                           best interest of the child.13 To overcome this
        would significantly impair the                          presumption, a court must find that (1)
        child's physical health or                              appointment of the parents would significantly
        emotional     development,      a                       impair the child's physical health or emotional
        parent shall be appointed sole                          development, (2) the parents have exhibited a
        managing conservator or both                            history of family violence, or (3) the parents
        parents shall be appointed as                           voluntarily relinquished care, control, and
        joint managing conservators of                          possession of the child to a non-parent for a year
        the child.                                              or more.14 A trial court's conclusion that the
                                                                parental presumption has been rebutted must be
        (b)    It    is   a     rebuttable                      supported by specific findings of fact identifying
        presumption         that       the                      the factual basis for the finding, and the failure
        appointment of the parents of a                         to make such findings constitutes error.15
        child as joint managing
        conservators is in the best                                  Shelley contends that the trial court was
        interest of the child. A finding                        required to specifically make one of these three
        of a history of family violence                         findings to appoint the Grandparents as joint
        involving the parents of a child                        managing conservators. Relying on a Texas
        removes the presumption                                 Supreme Court opinion construing a former
                                                                version of the family code, the Grandparents
[297 S.W.3d 470]                                                assert that the presumption does not apply and,
        under this subsection.11                                therefore, no findings were required because
                                                                Shelley and Roger were also made joint
     Section 153.373 states that                                managing conservators.



                                                                                                                -3-
                                  Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



     In Brook v. Brook,16 the supreme court                    the appointment would be in the child's best
construed former family code section 14.01,                    interest.20 This is no longer the law.21
which provided, in pertinent part, as follows:
                                                                     Under current section 153.131, it is now
        (a) In any suit affecting the                          presumed that the appointment of both parents
        parent-child relationship, the                         as joint managing conservators is in the child's
        court may appoint a sole                               best interest.22 This substantive change in the
        managing conservator or may                            parental presumption law is not addressed by the
        appoint      joint    managing                         dissent. When Brook was decided, there was no
        conservators.     A   managing                         rebuttable presumption that both parents be
        conservator must be a suitable,                        appointed joint managing conservators. Thus,
        competent adult, or a parent, or                       under former law, so long as one parent was
        an authorized agency. If the                           appointed a joint managing conservator, as was
        court finds that the parents are                       the case in Brook, the parental presumption was
        or will be separated, the court                        satisfied. Under section 153.131, however, a
        shall appoint at least one                             non-parent may not be appointed a joint
        managing conservator.                                  managing conservator without overcoming the
                                                               presumption as to both parents.23 The plain
        (b) A parent shall be appointed                        wording of the statute makes clear that this
        sole managing conservator or                           presumption applies when a non-parent seeks
        both parents shall be appointed                        managing conservatorship in lieu of or in
        as joint managing conservators                         addition to both parents. There is no language in
        of the child unless:                                   section 153.131 that indicates that the
                                                               presumption is inapplicable to the appointment
        (1) the court finds that                               of non-parents as joint managing conservators
        appointment of the parent or                           when the trial court also appoints one or both
        parents would not be in the best                       parents. Nor does Brook compel this result.
        interest of the child because the
        appointment would significantly                        [297 S.W.3d 472]
        impair the child's physical
        health        or        emotional                           The dissent suggests that we have departed
        development.17                                         from binding precedent of the supreme court and
                                                               of this court. We clearly have not. Brook, and
[297 S.W.3d 471]                                               this court's nearly twenty-year-old decision
                                                               following it,24 interpreted and applied a former
     The supreme court held that section 14.01                 statute that did not contain a parental
authorized a trial court to appoint a non-parent               presumption requiring that both parents be
as a joint managing conservator without proof                  appointed joint managing conservators unless
that appointment of a parent or the parents                    rebutted. Because Brook construed a repealed
would significantly impair the child's health or               statute that is substantively different than the
development, so long as the non-parent shares                  statute at issue here, we are, of course, not
custody with a parent.18                                       bound under the doctrine of stare decisis by the
      Unlike current section 153.131, former                   Brook court's interpretation of the repealed
section 14.01 contained no rebuttable                          statute.25
presumption that appointment of both parents as                     The dissent takes the novel position that the
joint managing conservators is in the child's best             presumption does not apply to the appointment
interest.19 At the time Brook was decided, a trial             of the joint managing conservators in this case,
court was authorized to appoint parents as joint               but that it does apply to which joint managing
managing conservators only upon finding that                   conservator should determine the child's


                                                                                                             -4-
                                   Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



permanent residence. As written by the                               In an abuse of discretion review, legal and
legislature, however, section 153.131 contains                  factual insufficiency are not independent
no language that indicates a legislative intent                 grounds for asserting error, but are merely
that a parental presumption applies to the issue                relevant factors in assessing whether a trial court
of primary custody apart from the determination                 abused its discretion.33 Thus, in applying the
of joint managing conservatorship. The title to                 abuse of discretion standard, an appellate court
section 153.131 is "Presumption That Parent to                  in a family law case must apply a two-prong
be Appointed Managing Conservator."26                           analysis: (1) whether the trial court had
Moreover, the statute expressly refers to a                     sufficient evidence upon which to exercise its
presumption that a parent should be appointed                   discretion; and (2) whether the trial court erred
"sole managing conservator," or that both                       in applying its discretion.34
parents should be appointed "joint managing
conservators"—it makes no reference to a                             We may sustain a legal sufficiency
separate presumption for determining which                      challenge only when (1) the record discloses a
joint managing conservator chooses the child's                  complete absence of evidence of a vital fact, (2)
permanent residence.27 To reach the result that                 the court is barred by rules of law or of evidence
the dissent advocates, we would be required to                  from giving weight to the only evidence offered
legislate from the bench and convert the                        to prove a vital fact, (3) the evidence offered to
managing conservator presumption into a                         prove a vital fact is no more than a mere
"primary custody" presumption with no statutory                 scintilla, or (4) the evidence establishes
authority for doing so. We are not inclined to do               conclusively the opposite of a vital fact.35 In
this.28                                                         determining whether there is legally sufficient
                                                                evidence to support the finding under review, we
     We hold that the trial court correctly                     must consider evidence favorable to the finding
followed express provisions of the family code                  if a reasonable factfinder could and disregard
by applying the parental presumption to the                     evidence contrary to the finding unless a
appointment of the Grandparents as joint                        reasonable factfinder could not.36
managing conservators in this case. Upon
finding that the parental presumption was                            When reviewing an assertion that the
rebutted, however, the trial court failed to make               evidence is factually insufficient to support a
findings     specifically   stating     how      the            finding, we set aside the finding only if, after
presumption was rebutted.29 The failure to make                 considering and weighing all of the evidence in
such findings is error.30 This error was waived,                the record pertinent to that finding, we
however, because Shelley did not timely request                 determine that the evidence supporting the
additional findings of fact.31 Shelley's first issue            finding is so weak, or so contrary to the
is overruled.                                                   overwhelming weight of all the evidence, that
                                                                the answer should be set aside and a new trial
[297 S.W.3d 473]                                                ordered.37

    C. The Sufficiency of the Evidence to                            2. Voluntary Relinquishment of Ryder
Overcome the Parental Presumption                               for a Period of One Year or More

     We now turn to Shelley's contention in her                      The Grandparents contend that Shelley's
second issue that insufficient evidence was                     sparse contact with Ryder from January 2004 to
presented by the Grandparents to rebut the                      January 2005 proves that she voluntarily
presumption    through     either     voluntary                 relinquished actual care, control, and possession
relinquishment or significant impairment                        of Ryder to them. We disagree.
grounds.32
                                                                     Between January and April of 2004,
     1. Standards of Review                                     Shelley maintained her permanent residence


                                                                                                               -5-
                                   Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



with Ryder and saw him on a majority of days.                   finding of significant impairment, we agree with
While she was absent from Ryder on several                      Shelley that the evidence is factually insufficient
occasions during that time period, there is no                  to support such a finding.
evidence that she intended to surrender the care
of Ryder.                                                             Impairment must be proved by a
                                                                preponderance of the evidence indicating that
[297 S.W.3d 474]                                                some specific, identifiable behavior or conduct
                                                                of the parent, demonstrated by specific acts or
     After Shelley moved out of the                             omissions of the parent, will probably cause that
Grandparents' residence in June 2004, the time                  harm.41 This is a heavy burden that is not
she spent with Ryder decreased.38 But, the                      satisfied by merely
testimony of both Shelley and Sharon shows
that, although Shelley was often physically                     [297 S.W.3d 475]
separated from Ryder in the latter part of 2004,
she did not intend to relinquish control of him.                showing that the non-parent would be a better
                                                                custodian of the child.42 "Close calls" should be
     Shelley testified that she had agreed with                 decided in favor of the parent.43
the Grandparents that Ryder would stay with
them long enough to complete his school year,                        Evidence of past misconduct is not alone
and that she would change Ryder's school and                    sufficient to show present unfitness.44 "If the
have him live with her the following year.                      parent is presently a suitable person to have
Shelley stated that she talked with the                         custody, the fact that there was a time in the past
Grandparents about this plan "[w]eekly from the                 when the parent would not have been a proper
moment that [she] didn't stay at their house" and               person to have such custody is not controlling."45
that she was "made to believe" that the change
was going to happen. Sharon testified that she                       The evidence offered at trial was as
was aware of these plans when Shelley moved                     follows:
out of her house, and that she knew that                             Diane Booth, a licensed social worker who
Shelley's intention was to take Ryder back. She                 conducted another study in 2006 after Maslow
also admitted that even when Shelley moved                      issued his report, testified that Joseph and
away, she was "still involved in decisions                      Sharon were "great grandparents" and that
regarding Ryder" and, most importantly, that                    Shelley was a good mom who never put Ryder
Shelley "never actually, really relinquished ...                in any danger and was generally doing a good
control completely."                                            job parenting him. She also reported that Roger
     Thus, while Shelley may have been                          had drug addiction problems, that he described
physically apart from Ryder for a substantial                   himself as a "practicing alcoholic," and that he
part of 2004, there is no evidence that she                     seemed to be angry over the fact that he had
voluntarily relinquished actual care, custody,                  been adopted, but that he had steady work and
and control of him to the Grandparents.39                       that he "loved being around Ryder." She further
                                                                explained that when she met with Ryder, he was
    3. Significant Impairment of Ryder's                        happy, but he was also confused about his living
Physical Health or Emotional Development                        situation regarding the various people who had
                                                                requested custody of him. She also testified that
     Shelley also contends that the evidence is                 she received a letter from Ryder stating that he
legally and factually insufficient to establish that            wanted to live with Shelley.
appointing her and Roger as joint managing
conservators would significantly impair Ryder's                     Booth recommended that Ryder be placed
physical health or emotional development.40                     with Shelley and opined that it would be in
Although there is some evidence to support a                    Ryder's best interest if the Grandparents fulfilled



                                                                                                               -6-
                                  Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



a secondary role in a more typical grandparent                 but he does not have the ability to be Ryder's
relationship with Ryder.                                       primary managing conservator.

     Barbara Martinez, Chris's mother, testified                    Roger testified that he resided with his
that Shelley was a good mother who took good                   parents for three years preceding the trial, that he
care of Ryder when he was at her house.                        was currently employed in the information
According to Mrs. Martinez, Shelley bathed                     technology field, and that he had previously
Ryder, did his laundry, disciplined him, and                   been employed as a bartender at several
helped him with his homework. Kyra Anderson,                   locations. He stated that two years had passed
Ryder's first grade teacher during 2004 and                    from the last time he used illegal drugs and that
2005, testified that the Grandparents were very                he drank alcohol about once a week at the time
involved in his school activities and in the                   of trial, becoming drunk occasionally. He
progress Ryder was making in the classroom,                    expressed a desire to be a good father and also
that Ryder "fully enjoyed being with" them, and                gave his opinion that Ryder should continue to
that Shelley was not involved with his                         reside with the Grandparents because he felt
schooling.46                                                   Ryder needed more "structure and support," but
                                                               that Shelley should have equal time with Ryder
     Dee Henderson, who had custody of                         and that she "loves [Ryder] very much."
Shelley's daughter Lexi, testified that she had                However, Roger also testified that in January
concerns about Shelley's ability as a parent                   2005 Shelley threatened to take Ryder away so
because Shelley was unreliable and had only                    that he and the Grandparents would never see
limited contact with Lexi.47 She also testified,               Ryder again.48 He further said that when he first
however, that she had no concerns that Lexi                    separated from Shelley he was concerned for
would be physically harmed while with Shelley,                 Ryder's safety because he believed Shelley did
that she had no concerns about Lexi's safety at                not take care of Ryder's physical needs.
the Martinezes' house, and that she had never
seen Shelley be physically or verbally abusive to                   Sharon testified that she and Joseph first
Lexi or Ryder.                                                 began to keep Ryder at their home every other
                                                               weekend when he was born, and then they
    Cathy Baczynski, a licensed professional                   progressed to keeping him every weekend and
counselor, testified that, during counseling,                  part of the summer before Shelley and Ryder
Roger discussed identity issues related to                     moved in with them in 2003. She also contended
                                                               that Shelley was not very involved in Ryder's
[297 S.W.3d 476]                                               early education and that she often returned
his adoption as well as his substance abuse                    Ryder late from her Wednesday visits with him.
history, his need to overcome his ADHD, his                    Sharon explained that upon picking up Ryder
frustration about living with his parents, and his             from one of his visits to the Martinezes' house,
lack of communication with Shelley. Baczynski                  she became concerned about broken glass
also explained that she met with Ryder and                     surrounding a trampoline, a murky swimming
gained the impression from him that Roger                      pool, and an open flame on the stove, which
needed to be much more involved in Ryder's                     Shelley stated was used for heating. She was
life. She also stated that Ryder seemed to be                  also concerned that Shelley had taken Ryder to
happy living with his Grandparents and that his                the nightclub during a poker tournament that
needs were well met in their home, but that he                 was hosted there.
would like to spend more time with Shelley and                      Sharon said that she saw Shelley slap Ryder
that, as a general rule, it is always best for a               one time, that Shelley told her that she spanks
child's parents to have custody if possible. She               Ryder, and that after returning from visits with
concluded that Roger has made positive strides,                Shelley, Ryder had behavioral problems. She
                                                               conceded, however, that Ryder missed Shelley


                                                                                                               -7-
                                   Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



and that he and Shelley loved each other. She                   Xanax—filled within the previous six months.
requested that the court allow her and Joseph to                No evidence was presented indicating that
keep Ryder during school weeks and split the                    Shelley was still taking high dosages of
rest of Ryder's access equally between Roger                    prescription medications at the time of or
and Shelley.                                                    recently before trial; in fact, a "prescription
                                                                profile" exhibit submitted into evidence by the
     Joseph testified that he was concerned that                Grandparents listed no prescriptions for Shelley
Shelley could not provide a stable financial                    after 2005. Thus, while Shelley's drug use may
environment for Ryder because she did not have                  have affected her fitness as a mother in the past,
a paying job, did not have a car in her name, and               there was no evidence presented of any current
did not have her own place to live. Joseph                      drug use that would cause significant
described that Roger had taken a more active                    impairment to Ryder's physical health or
role in Ryder's life, had obtained a respectable                emotional development in the present.
job, had provided health insurance for Ryder,
and had sought help from a therapist to deal with                     With regard to Shelley's living and
Roger's emotional problems.                                     financial conditions, the evidence shows that, at
                                                                the time of trial, Shelley and Chris, who also has
     Todd Maslow (who submitted the original                    a history of drug abuse, were living together at
social study report) testified that, despite his                his parents' home. Chris, however, offered
recommendation that Ryder                                       uncontroverted testimony that he had not used
                                                                illegal drugs in at least the four years preceding
[297 S.W.3d 477]                                                trial. Also, the evidence established that at the
should remain with his Grandparents, he would                   Martinezes' five bedroom, two story house,
not have concerns about Ryder's safety if he                    Ryder had his own room and that Shelley's work
stayed with Shelley and did not believe that                    at the nightclub on weekends could allow her to
Ryder living with Shelley would significantly                   be a stay-at-home mom for Ryder during
impair Ryder's physical health or emotional                     weekdays.52 Shelley's residence at the
development.49 He also testified that when he                   Martinezes' house seemed to be stable. Mrs.
talked to Ryder when completing his initial                     Martinez testified that Shelley had become like a
study, Ryder told him he wanted to live with                    daughter
Shelley.                                                        [297 S.W.3d 478]
      The Grandparents also rely on evidence of                 to her and that if Chris's and her relationship
Shelley's history of drug use and her living and                became estranged, Shelley could continue to live
financial conditions as proof that Ryder's                      at her house with Ryder. Although, as the
physical and emotional health would be                          Grandparents point out, Shelley does not own or
impaired by the appointment of Shelley and                      lease a vehicle, carry health insurance, or
Roger as joint managing conservators. At the                    maintain paid employment, Mrs. Martinez
time of trial, however, Shelley was not taking                  testified that Shelley has access to four vehicles
any medications. While she admitted that she                    at her house and that she is "free to take them
had previously been dependent on drugs                          anytime," Roger carries insurance for Ryder, and
prescribed for her multiple sclerosis,50 and                    Shelley's lack of paid employment is "no
evidence established that she had taken high                    evidence" of a potential for significant
dosages of several types of prescription                        impairment to Ryder.53
medications that sometimes negatively affected
her,51 she testified that at the time of trial, she                  Finally, the Grandparents cite evidence in
was not taking any prescription medications, she                the record related to certain conditions at the
had no current symptoms from her multiple                       Martinezes' house that they believe could cause
sclerosis, and she only had one prescription—for                harm to Ryder. For example, they note that the


                                                                                                              -8-
                                 Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



Martinezes' backyard had a murky pool that was                January 2004 and January 2005, and remand the
filled with leaves and a trampoline that had                  case for a new trial on the issue of whether the
broken glass underneath it. Mrs. Martinez, on                 appointment of Shelley and Roger as joint
the other hand, testified that Ryder was never                managing conservators would not be in the best
allowed unattended outside, that an alarm                     interest of Ryder because such an appointment
sounded if any door in the house was opened,                  would significantly impair his physical health or
and that if the trial judge was concerned about               emotional development.54
the safety of the pool, she would remedy those
concerns. Sharon testified that she had learned                   LIVINGSTON, J., filed a dissenting and
that the broken glass was from a patio table that             concurring opinion.
had blown into the pool during a windstorm;
there was no evidence in the record as to how                 ---------------
recently the windstorm had occurred. Sharon                   Notes:
was also concerned at trial about an open flame
used to heat the Martinezes' house, but she                   1. Ryder was diagnosed with ADHD while in the
admitted that Ryder had been taught about fire                second grade.
hazards and that he was unlikely to attempt to
                                                              2. Specifically, the decree granted Shelley possession
play with the flame.
                                                              of Ryder on three weekends per month, Thursday
     Viewing the entire record under the legal                evenings, spring breaks, some of the time during
                                                              Ryder's Christmas break, Mother's Day, some other
and factual sufficiency standards of review
                                                              holidays, and forty-two days during the summer, but
articulated above, we conclude that, while there              gave possession to the Grandparents at "all other
is some evidence that placing Ryder under the                 times not specifically designated."
joint managing conservatorship of Shelley and
Roger might significantly impair the physical                 3. See Tex.R. Civ. P. 296.
health and emotional development of Ryder, the
evidence is factually insufficient to support a               4. See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.-
                                                              Dallas 2008, no pet.); Earvin v. Dep't of Family &
finding of such impairment.
                                                              Protective Servs., 229 S.W.3d 345, 350 (Tex.App.-
                                                              Houston [1st Dist.] 2007, no pet.).
III. Conclusion
                                                              5. Downer v. Aquamarine Operators, Inc., 701
      We hold that the trial court abused its                 S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476
discretion by appointing the Grandparents as                  U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986).
joint managing conservators because the
evidence is insufficient to support the trial                 6. Id.
court's finding that the parental presumption was
rebutted. There is no evidence that Shelley                   7. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998)
voluntarily relinquished actual care, custody,                (orig. proceeding).
and control of Ryder for one year or more, and                8. See Butnaru v. Ford Motor Co., 84 S.W.3d 198,
the evidence is factually insufficient to prove               211 (Tex.2002).
that the appointment of Ryder's parents as joint
managing conservators would significantly                     9. Tex. Fam.Code Ann. §§ 153.131, .373 (Vernon
impair Ryder's physical health or emotional                   2008).
development. We, therefore, reverse the
                                                              10. Section 153.004 states, in part, that in
provisions of the decree pertaining to joint
                                                              determining conservatorship, a court shall consider
managing conservatorship, render judgment that                evidence of the intentional use of abusive physical
a non-parent shall not be appointed joint                     force and that a court may not "appoint joint
managing conservator based on Shelley's alleged               managing conservators if credible evidence is
voluntary relinquishment of Ryder's care,                     presented of a history or pattern of past or present
custody, and control for the period between                   child neglect, or physical or sexual abuse by one


                                                                                                                -9-
                                      Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



parent directed against the other parent, a spouse, or a           22. See Tex. Fam.Code Ann. § 153.131(a) ("both
child ... that results in the other parent becoming                parents shall be appointed as joint managing
pregnant with the child." Tex. Fam. Code Ann. §                    conservators of the child") (emphasis added), §
153.004(a)-(b) (Vernon 2008); see In re R.T.H., 175                153.131(b) ("It is a rebuttable presumption that the
S.W.3d 519, 521 (Tex. App.-Fort Worth 2005, no                     appointment of the parents of a child as joint
pet.).                                                             managing conservators is in the best interest of the
                                                                   child.") (emphasis added).
11. Tex. Fam.Code Ann. § 153.131.
                                                                   23. See Tex. Fam.Code Ann. § 153.131(a) ("both
12. Id. § 153.373.                                                 parents shall be appointed as joint managing
                                                                   conservators of the child") (emphasis added), §
13. Id. §§ 153.131(a),(b), .373.                                   153.131(b) ("It is a rebuttable presumption that the
                                                                   appointment of the parents of a child as joint
14. Id. §§ 153.131(a),(b), .373; see In re N.J.G., 980             managing conservators is in the best interest of the
S.W.2d 764, 766 n. 1 (Tex.App.-San Antonio 1998,                   child.") (emphasis added). The dissent contends that
no pet.).                                                          the presumption does not apply to the grandparents
                                                                   because both parents were appointed as joint
15. Chavez v. Chavez, 148 S.W.3d 449, 459-60
                                                                   managing conservators. But section 153.131 clearly
(Tex.App.-El Paso 2004, no pet.); see Tex. Fam.Code
                                                                   requires that the presumption favoring the
Ann. §§ 153.004, .131, .373.
                                                                   appointment of both parents as joint managing
16. 881 S.W.2d 297 (Tex. 1994).                                    conservators be rebutted by any non-parent seeking a
                                                                   joint managing conservatorship appointment in lieu
17. Act of May 29, 1993, 73rd Leg., R.S., ch. 766, §               of or in addition to both parents.
1, sec. 14.01(a), 1993 Tex. Gen. Laws 2989, 2989,
repealed by Act of April 6, 1995, 74th Leg., R.S., ch.             24. See Connors v. Connors, 796 S.W.2d 233, 239
20, § 2, 1995 Tex. Gen. Laws 282, 282; Act of May                  (Tex.App.Fort Worth 1990, writ denied).
28, 1989, 71st Leg., R.S., ch. 370, § 1, sec.
                                                                   25. See Lal v. Harris Methodist Fort Worth, 230
14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461,
                                                                   S.W.3d 468, 473-74 (Tex.App.-Fort Worth 2007, no
repealed by Act of April 6, 1995, 74th Leg., R.S., ch.
                                                                   pet.) (rejecting argument that statute that was
20, § 2, 1995 Tex. Gen. Laws 282, 282.
                                                                   substantively amended should be construed as if it
18. Brook, 881 S.W.2d at 300.                                      had not been amended).

19. See Tex. Fam.Code Ann. § 153.131(b), Historical                26. Tex. Fam.Code Ann. § 153.131 (emphasis
and Statutory Notes ("Acts 1995, 74th Leg., ch. 751                added).
... added subsec. (b)," which provides for "rebuttable
                                                                   27. Id.
presumption that the appointment of the parents of a
child as joint managing conservators is in the best                28. Moreover, the two El Paso Court of Appeals
interest of the child").                                           opinions on which the dissent relies actually support
                                                                   the conclusion that the parental presumption only
20. See Act of May 14, 1991, 72nd Leg., R.S., ch.
                                                                   applies to primary custody in the context of
161, § 2, 1991 Tex. Gen. Laws 771, 771, repealed by
                                                                   determining joint managing conservatorship between
Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2,
                                                                   a parent and non-parent. See Sotelo v. Gonzales, 170
1995 Tex. Gen. Laws 282, 282; see also Brook, 881
                                                                   S.W.3d 783, 788 (Tex.App.El Paso 2005, no pet.); In
S.W.2d at 298.
                                                                   re De La Pena, 999 S.W.2d 521, 534-35 (Tex.App.El
21. While we have found no legislative history                     Paso 1999, no pet.).
beyond the changes made to the current statute after
                                                                   29. The trial court also offered no explanation for
section 14.01 was repealed that expressly indicates
                                                                   why he appointed Shelley and Roger joint managing
that the legislature intended to overrule or nullify
                                                                   conservators of Ryder after concluding that the
Brook when it repealed section 14.01, it is clear from
                                                                   presumption was rebutted, i.e., that it would not be in
a comparison of the two statutes that the post-Brook
                                                                   Ryder's best interest to appoint his parents as joint
changes to the statutes were substantive.
                                                                   managing conservators.



                                                                                                                     - 10 -
                                      Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



30. Chavez, 148 S.W.3d at 459-60.                                  1997, writ denied) (suggesting that voluntary
                                                                   relinquishment ends when temporary restrictions are
31. Tex.R. Civ. P. 297, 299; Chavez, 148 S.W.3d at                 ordered).
459-60.
                                                                   40. See Tex. Fam.Code Ann. § 153.131(a); Sotelo,
32. Joseph and Sharon have not contended on appeal                 170 S.W.3d at 788.
that the evidence supported a finding that Shelley
exhibited a history of family violence, so we will not             41. Lewelling v. Lewelling, 796 S.W.2d 164, 167
analyze this ground for rebutting the parental                     (Tex. 1990); Whitworth v. Whitworth, 222 S.W.3d
presumption. See Tex. Fam.Code Ann. § 153.131(b).                  616, 623 (Tex.App.-Houston [1st Dist.] 2007, no
                                                                   pet.) (stating that the "link between the parent's
33. M.P.B., 257 S.W.3d at 811-12; In re M.C.F., 121                conduct and harm to the child may not be based on
S.W.3d 891, 895, 899 (Tex.App.-Fort Worth 2003,                    evidence which merely raises a surmise or
no pet.).                                                          speculation"); see Tex. Fam.Code Ann. § 105.005
                                                                   (Vernon 2008) (stating that findings in family law
34. M.C.F., 121 S.W.3d at 895.                                     cases must generally be proved by the preponderance
                                                                   standard).
35. Uniroyal Goodrich Tire Co. v. Martinez, 977
S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S.                42. Lewelling, 796 S.W.2d at 167.
1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999);
Robert W. Calvert, "No Evidence" and "Insufficient                 43. Id. at 168.
Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-
63 (1960).                                                         44. Id.

36. Cent. Ready Mix Concrete Co. v. Islas, 228                     45. May v. May, 829 S.W.2d 373, 377 (Tex. App.-
S.W.3d 649, 651 (Tex.2007); City of Keller v.                      Corpus Christi 1992, writ denied) (op. on reh'g); see
Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005).                       S.W.H., 72 S.W.3d at 777-78 (holding that the
                                                                   mother's past severe drug addiction and past
37. Pool v. Ford Motor Co., 715 S.W.2d 629, 635                    incarcerations related to drug use did not create a
(Tex. 1986) (op. on reh'g); Garza v. Alviar, 395                   present likelihood of significant impairment to her
S.W.2d 821, 823 (Tex. 1965); In re King's Estate,                  child).
150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951).
                                                                   46. At trial, Shelley testified that she visited Ryder's
38. According to Sharon's calendar, Shelley saw                    school two days a week and that she went to his
Ryder only twenty times from June through                          school-related activities.
December 2004.
                                                                   47. Shelley has had six pregnancies. Among these,
39. Even if we were to conclude that some evidence                 she had a daughter in 1994 named Lexi whom she
of relinquishment existed beginning in June 2004,                  lived with for only six months and shared access to at
when Shelley moved out of the Grandparents' home,                  the time of trial, and she also had a baby with Chris
she filed answers to Roger's petition and the                      after her miscarriage, who was six months old when
Grandparent's petition in intervention in February                 the trial began.
2005 and, therefore, ended any period of voluntary
relinquishment approximately seven months after                    48. Sharon's testimony confirmed the threat.
leaving the Grandparents' house to leave Ryder with
his grandparents. See In re S.W.H., 72 S.W.3d 772,                 49. Specifically, Maslow stated that the move to live
777 (Tex.App.Fort Worth 2002, no pet.). Moreover,                  with Shelley "could affect [Ryder's] emotional
in May 2005, the trial court entered a temporary                   adjustment; but seriously impair, no." He did,
order restricting Shelley's access to Ryder. In light of           however, testify that he believed the Grandparents
such an order, any relinquishment by Shelley that                  and Roger were providing Ryder with security in his
occurred while the order was in effect was                         current placement, that Ryder should remain with
involuntary. Id. (concluding that a temporary                      them, and that he retained some concerns about some
restraining order entered against a parent ended the               of Shelley's circumstances and her truthfulness on
parent's period of voluntary relinquishment); see also             some of the responses she gave to him in his initial
In re M.W., 959 S.W.2d 661, 668 (Tex.App.-Tyler                    survey.



                                                                                                                      - 11 -
                                     Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



50. Shelley had taken many prescription medications,              majority departs from Texas Supreme Court
including Suboxone, Seroquel, Hydrocodone,                        precedent and our own precedent in its holding.
Ambien, Lunesta, Lamictal, and Xanax at various
times before trial. These medications sometimes                        The Collective Appointment of the
made her dizzy or drowsy with slurred speech.                     Grandparents and the Parents as Ryder's
Sharon testified that in 2003, Shelley often left                 Joint Managing Conservators
medication out in places that Ryder had access to,
and that in 2005, during one of Shelley's scheduled                     Shelley's argument in her second issue that
visits with Ryder, the medication caused Shelley to               the trial court abused its discretion when it
sleep for a prolonged period on Ryder's bedroom
                                                                  appointed the Grandparents as Ryder's joint
floor.
                                                                  managing conservators along with the Parents in
51. A pharmacist called by Roger's attorney                       that same role presupposes that the Grandparents
described the medications Shelley had taken and                   were required to overcome the statutory parental
opined that the dosages were high, but admitted that              presumption to gain the appointment. That
she had limited knowledge of multiple sclerosis and               supposition (and the majority's holding that
the reasons why Shelley's doctors may have been                   follows the supposition) is erroneous.
prescribing the types and amounts of medication she
was taking.                                                            Sections 153.131 and 153.373 of the family
                                                                  code establish that to overcome the presumption
52. Shelley helped manage a nightclub that she,
Chris, and Chris's parents jointly owned, although she
                                                                  that a parent must be appointed as a managing
received room and board in lieu of salary. Chris's                conservator of a child, a court must find that (1)
mother watched Ryder when Shelley worked.                         appointment of the parent would significantly
                                                                  impair the child's physical health or emotional
53. See Lewelling, 796 S.W.2d at 167.                             development, (2) the parent has exhibited a
                                                                  history of family violence, or (3) the parent
54. Because we have reversed and remanded the                     voluntarily relinquished care, control, and
issues related to conservatorship and possession, we
                                                                  possession of the child to a nonparent for a year
need not address Roger's sole issue in which he
contends that the trial court abused its discretion by            or more. Tex. Fam.Code Ann. §§ 153.131, .373
rendering a custody order that, although naming him               (Vernon 2008); see In re N.J.G., 980 S.W.2d
a joint managing conservator of Ryder, did not                    764, 766 n. 1 (Tex.App.-San Antonio 1998, no
designate his periods of possession and access. See               pet.) (citing sections 153.131 and 153.373 in a
Tex.R.App. P. 47.1.                                               discussion of the parental presumption). But
                                                                  these findings are not required when both
---------------                                                   parents are named managing conservators.
[297 S.W.3d 479]                                                        Section 153.372 authorizes a trial court to
                                                                  appoint parents and nonparents together as joint
     TERRIE LIVINGSTON, Justice, dissenting
                                                                  managing conservators. Tex. Fam.Code Ann. §
and concurring.
                                                                  153.372(a) (Vernon 2008). And Texas Supreme
     The majority holds that the trial court could                Court precedent holds that the mere appointment
not appoint Joseph and Sharon (the                                of grandparents as joint managing conservators
Grandparents) together with Shelley and Roger                     alongside parents in that same role does not
(the Parents) as Ryder's joint managing                           require a trial court to apply the parental
conservators without applying the statutory                       presumption to exclude the grandparents; rather,
parental presumption and determining that the                     the trial court may make such an appointment if
Parents voluntarily relinquished care, custody, or                it deems the appointment to be in the best
control of Ryder or that the Parents' appointment                 interest of the child. Brook v. Brook, 881 S.W.2d
as managing conservators would significantly                      297, 299-300 (Tex.1994).
impair Ryder's physical health or emotional
development. See Majority op. at 470-72. The


                                                                                                               - 12 -
                                  Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



     In Brook, the court reviewed the collective               Brook) are named joint managing conservators,
appointment of the mother and the mother's                     that possible modification would have no effect
parents as joint managing conservators to the                  on Brook's relation to this case because here the
exclusion of the father and unanimously                        trial court did name both of the Parents as joint
reasoned that the statutory parental presumption               managing conservators, and thus completely
"contemplates a situation in which neither of the              complied with subsection (b). Thus, for section
parents are awarded" managing conservatorship.                 153.131(b) to achieve the precedent-altering
Id. at 298-99. The court explained that the                    result that the majority holds it does under the
parental presumption applies "only to those                    facts of this case, it would need to go beyond
situations in which a nonparent seeks custody in               stating that "[i]t is a rebuttable presumption that
lieu of a natural parent." Id. at 299 (emphasis                the appointment of the parents of a child as joint
added). Finally, the court noted that "[t]he                   managing conservators is in the best interest of
purpose of the statute, to codify the preference               the child" to say something similar to "it is a
for giving custody to a parent, has been met in                rebuttable presumption that the appointment of
the present case. The fact that a nonparent shares             parents of a child as joint managing conservators
custody does not detract from the fact that one of             to the exclusion of all other parties seeking
the child's parents does have custody." Id. at                 custody is in the best interest of the child." It
300. We have expressly held the same. Connors                  does not do so.2
v. Connors, 796 S.W.2d 233, 239 (Tex.App.-
Fort Worth 1990, writ denied) (holding that the                [297 S.W.3d 481]
presumption "does not preclude the appointment
                                                                     It is "fundamental to the very structure of
[297 S.W.3d 480]                                               our appellate system that [the Texas Supreme
                                                               Court's] decisions be binding on the lower
of a parent to serve jointly with a non-parent"                courts." Dallas Area Rapid Transit v.
and that it applies only if "appointment is to be              Amalgamated Transit Union Local No. 1338,
denied to both parents").                                      273 S.W.3d 659, 666 (Tex. 2008), cert. denied,
                                                               ___ U.S. ___, 129 S.Ct. 2767, 174 L.Ed.2d 284
     While Brook cited a previous version of the               (2009); see Lubbock County v. Trammel's
family code, the language analyzed in the                      Lubbock Bail Bonds, 80 S.W.3d 580, 585
decision is almost exactly the same as the                     (Tex.2002) (explaining that it "is not the
language that now appears in subsection (a) of                 function of a court of appeals to abrogate or
section 153.131.1 Brook, 881 S.W.2d at 298-99.                 modify established precedent"). Under the
The only addition to the presumption statute that              established precedent of the supreme court in
amounts to anything beyond rearranging words                   Brook and of our own court in Connors, the
is subsection (b) of section 153.131, which states             Grandparents did not have to overcome the
that it is "a rebuttable presumption that the                  parental presumption for their appointment as
appointment of the parents of a child as joint                 joint managing conservators, and I would hold
managing conservators is in the best interest of               that their appointment as such is in Ryder's best
the child."                                                    interest under the factors listed in Holley v.
                                                               Adams, 544 S.W.2d 367, 372 (Tex.1976). Thus,
      The majority solely relies on subsection (b)             I would affirm the trial court's conservatorship
as having precedent-overruling importance. See                 appointment, and I dissent to the portion of the
Majority op. at 470-72. But while it is possible               majority's opinion reversing the appointment.
(although not supported by any specific
authority or legislative history in the majority's             Primary Possession
opinion beyond the statutory amendment itself)
that subsection (b) could have modified Brook to                    Although Brook's application supports
the extent that the presumption applies unless                 affirming the Grandparents' appointment as
both parents (rather than a single parent, like in             managing conservators along with the Parents, it


                                                                                                             - 13 -
                                   Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



does not extend to their award of Ryder's                       in order to reach the result in De La Pena." Id.
primary possession, as challenged by Shelley.
Section 153.134(b)(1) of the family code states                      I agree with and would adopt the El Paso
that in rendering an order appointing joint                     Court's position, applying the same reasoning as
managing conservators, a court shall designate                  expressed in Sotelo and De La Pena. In De La
which conservator has the exclusive right to                    Pena, the child's aunt sought managing
determine the primary residence of the child.                   conservatorship to the exclusion of both parents
Tex. Fam.Code Ann. § 153.134(b)(1) (Vernon                      in that same role. De La Pena, 999 S.W.2d at
2008).                                                          524-25. Because she sought complete exclusion
                                                                of the parents, the El Paso Court properly
      In Sotelo v. Gonzales, the El Paso Court of               applied the statutory presumption (as interpreted
Appeals decided that in an original custody                     by Brook) that "the best interest of a child is
determination, the parental presumption "applies                served if a natural parent is appointed as a
when a non-parent and parent are appointed joint                managing conservator." Id. at 527. Then, in
managing conservators of a child but the non-                   applying the presumption to the primary
parent is given primary custody." 170 S.W.3d                    possession issue, the El Paso Court held and
783, 788 (Tex.App.-El Paso 2005, no pet.)                       explained that
(citing In re De La Pena, 999 S.W.2d 521, 534-
35 (Tex.App.-El Paso 1999, no pet.)). The court                           as between a parent and
reasoned that to "hold otherwise would permit                             nonparent, unless the court finds
the court to apply the presumption in appointing                          that appointment of the parent
the parent a joint managing conservator but                               would not be in the best interest
nevertheless choose the primary residence of the                          of the child because it would
child on the basis of a heads-up best interest test,                      significantly impair the child's
with the court determining which of the parties                           physical health or emotional
is the `better' choice." Id. This would, according                        development, the parent shall be
to the El Paso Court, result in the "appointment                          appointed      sole      managing
of a parent as a managing conservator in name                             conservator or the parent and
only, a paper title which eviscerates the purpose                         nonparent shall be appointed
of the statute." De La Pena, 999 S.W.2d at 535.                           joint managing conservators. If
                                                                          the court chooses the latter, the
     In contrast, the San Antonio Court of                                parent shall be awarded
Appeals held in Gardner v. Gardner that the                               primary possession unless such
parental presumption does not apply to the issue                          an order would not be in the
of primary possession between parent and                                  best interest of the child because
nonparent joint managing conservators. 229                                it would significantly impair the
S.W.3d 747, 752 (Tex.App.-San Antonio 2007,                               child's physical health or
no pet.). In Gardner, the parties agreed to joint                         emotional development.[3]
managing conservatorship of the children at
issue, and the only remaining custody issue was                       Id. at 534-35 (emphasis added).
which joint managing conservator was going to
be awarded the right to determine the primary                        Our precedent establishes that the basis of
residence. Id. The court reasoned that because                  the "deeply embedded" statutory parental
the "plain words of [section 153.131] do not                    presumption is to protect the "natural affection
address or contemplate application of the                       usually flowing between parent and child." In re
[parental] presumption to the issue of primary                  M.N.G., 113 S.W.3d 27, 35 (Tex.App.-Fort
possession, [it] would have to rewrite the statute              Worth 2003, no pet.). Also, a parent's rights to
                                                                "the companionship, care, custody, and
[297 S.W.3d 482]                                                management" of his or her children are
                                                                constitutional interests "far more precious than


                                                                                                               - 14 -
                                   Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



any property right." Santosky v. Kramer, 455                    2008). Another section of the code states that
U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71                      "[i]t is the policy of this state to ... optimize the
L.Ed.2d 599 (1982). Implicit in these rights is                 development of a close and continuing
the right to decide where one's child is to reside.             relationship between each parent and child." Id.
                                                                § 153.251(b) (Vernon 2008).
     The majority says that applying the parental
presumption to which joint managing                                  I would hold that erasing the parental
conservator has the right to determine a child's                presumption in an original suit on custody when
primary residence would require us to "legislate                a court appoints multiple parties as managing
from the bench."4 Majority op. at 472. But the                  conservators but gives primary possession to a
family code supports the application of the                     nonparent would weaken these constitutional
presumption even when nonparents are                            and statutory interests and would create an
designated as joint managing conservators                       unintended result by placing the parent and
without applying the presumption under                          nonparent on equal ground for the trial court's
circumstances like those in Brook. As the El                    real custody determination. Thus, because I
Paso Court explained, "Section 153.372(b) [of                   agree with the majority that the evidence in this
the family code] provides that the procedural                   case is insufficient to support the trial court's
and substantive standards regarding a court-                    finding that the Grandparents rebutted the
ordered joint managing conservatorship                          parental presumption, I would reverse the
provided by Subchapter C of the Family Code                     provisions of the trial court's order pertaining to
apply to a nonparent joint managing conservator.                the Grandparents' right to determine Ryder's
The very first section of Subchapter C contains                 primary residence and remand this case for
the parental presumption." De La Pena, 999                      further proceedings related to those provisions. I
S.W.2d at 534; see Tex. Fam.Code Ann. §                         would also sustain Roger's sole issue and reverse
153.372(b) (Vernon 2008).                                       the portion of the order limiting Roger's access
                                                                to and possession of Ryder because as all parties
    Other sections of the family code also                      have agreed, there is no evidence in the record
support presuming that parents should                           supporting that limitation.
[297 S.W.3d 483]                                                Conclusion
maintain the right to designate a child's primary                    For these reasons, I respectfully dissent to
residence, which, as our supreme court has                      the portion of the majority's opinion and
explained, is a crucial component of managing                   judgment reversing the trial court's appointment
conservatorship. See Phillips v. Beaber, 995                    of the Grandparents and Parents together as
S.W.2d 655, 660-61 (Tex. 1999) (equating the                    Ryder's joint managing conservators, but I
right of primary possession with "custody" and                  concur with the majority's remand of the case for
adding that primary possession and establishing                 further proceedings.
a child's residence are "core rights of managing
conservatorship"); see also Troxel v. Granville,                ---------------
530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147
L.Ed.2d 49 (2000) (explaining that "the interest                Notes:
of parents in the care, custody, and control of                 1. Subsection (a) of section 153.131 currently
their children ... is perhaps the oldest of the                 provides,
fundamental liberty interests"). For instance, the
very first section of the conservatorship chapter                         [U]nless the court finds that
of the family code relates that the state's public                        appointment of the parent or
policy is to "assure that children will have                              parents would not be in the best
frequent and continuing contact with parents."                            interest of the child because the
Tex. Fam.Code Ann. § 153.001(a)(1) (Vernon                                appointment would significantly



                                                                                                                - 15 -
                                     Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009)



        impair the child's physical health or                     parents shall be appointed as joint managing
        emotional development, a parent                           conservators of the child."
        shall be appointed sole managing
        conservator or both parents shall be                      2. The majority states, "There is no language in
        appointed as joint managing                               section 153.131 that indicates that the presumption is
        conservators of the child.                                inapplicable to the appointment of non-parents as
                                                                  joint managing conservators when the trial court also
     Tex. Fam.Code Ann. § 153.131(a). At the time                 appoints one or both parents." Majority op. at 471.
of the Brook decision, the former section of the                  But there was likewise no such language in the
family code relating to the presumption stated,                   version of the statute analyzed in Brook. Brook, 881
                                                                  S.W.2d at 298-99. The majority also argues that the
        A parent shall be appointed sole                          Brook and Connors opinions regarded "a former
        managing conservator or both                              statute that did not contain a parental presumption
        parents shall be appointed as joint                       requiring that both parents be appointed joint
        managing conservators of the child                        managing conservators unless rebutted." Majority op.
        unless:                                                   at 472. But again, that change to the former statute is
                                                                  irrelevant to this case because the trial court did
        1) the court finds that appointment                       appoint both Parents as joint managing conservators.
        of the parent or parents would not
        be in the best interest of the child                      3. This language signals the El Paso Court's opinion
        because the appointment would                             that where a court does not find significant
        significantly impair the child's                          impairment under the parental presumption,
        physical health or emotional                              appointment of parents alongside nonparents as joint
        development.                                              managing conservators is still proper because in such
                                                                  a situation, the parents have not been excluded from
     Act of May 28, 1989, 71st Leg., R.S., ch. 370, §             managing conservatorship. Id.; see Brook, 881
1, sec. 14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461,              S.W.2d at 299-300.
repealed by Act of April 6, 1995, 74th Leg., R.S., ch.
20, § 2, 1995 Tex. Gen. Laws 282, 282; see Brook,                 4. The majority uses the "legislate from the bench"
881 S.W.2d at 298. In essence, the legislature                    pejorative phrase in an attempt to show why it would
amended the family code to switch the order of the                not apply the parental presumption to the right to
words existing in both provisions; it moved the words             determine Ryder's primary residence, but it does not
"the court finds that appointment of the parent or                explain why that same phrase would not apply to its
parents would not be in the best interest of the child            own expansive interpretation of section 153.131
because the appointment would significantly impair                when that section applies to the appointment of both
the child's physical health or emotional development"             parents as a child's managing conservators.
from behind to in front of the words "[a] parent shall
be appointed sole managing conservator or both                    ---------------




                                                                                                                    - 16 -
                                 Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



                                              329 S.W.3d 186

                                       David GRAY, Appellant,
                                                v.
                                     Ann Wood SHOOK, Appellee.

                                           No. 13-09-00255-CV.

                                       Court of Appeals of Texas,
                                       Corpus Christi-Edinburg.

                                            Nov. 30, 2010.
                                  Rehearing Overruled Jan. 13, 2011.



[329 S.W.3d 187]                                             stating, "The best interest of [G.W.] will be
                                                             served by the appointment of [Lucy] as joint
    William A. Dudley, Corpus Christi, for                   managing conservator [of G.W.] with the
Appellant.                                                   exclusive right to designate the primary
                                                             residence of the child...." Gray also requested
     Jack W. Marr, Marr, Meier & Bradicich,                  that "appropriate orders be made for access to
Victoria, for Appellee.                                      the child and the allocation of the rights and
    Before Justices YAÑEZ, BENAVIDES,                        duties of the conservators." On January 23,
and VELA.                                                    2008, Ann Wood Shook, G.W.'s maternal
                                                             grandmother, filed a petition in intervention
OPINION                                                      stating that she "would show that it is in the best
                                                             interest of [G.W.] that Intervenor and
     Opinion by Justice BENAVIDES.                           Respondent [Lucy] be appointed joint managing
                                                             conservators of [G.W.]." Shook further
     Appellant, David Gray, appeals the trial                requested that she "be granted the exclusive
court's appointment of appellee, Ann Wood                    right to establish the primary legal residence of
Shook, as sole managing conservator of his                   the child" and that Gray be appointed possessory
daughter, G.W. By one issue, Gray contends that              conservator of G.W. Gray then amended his
the trial court abused its discretion because (1)            petition requesting that he be appointed joint
Shook did not offer sufficient evidence of harm              managing conservator with the exclusive right to
to overcome the parental presumption; (2) if the             designate the primary residence of G.W.
parental presumption was overcome, Shook did
not establish harm by a preponderance of the                 [329 S.W.3d 188]
evidence; and (3) Shook offered no evidence of
any specific acts or omissions by Gray that                  On June 30, 2008, a bench trial was held at
would significantly impair the physical health or            which Shook, Gray, Lucy, and Cheryl Green
emotional development of G.W. We reverse and                 testified.
remand.
                                                                   Shook stated that G.W. has lived in her
I. Background                                                home in Victoria, Texas since she was born and
                                                             that when Lucy moved out of Shook's home
     David Gray and Lucy Wood are the                        approximately two years earlier, G.W. continued
biological parents of G.W., who was born on                  living with Shook and her husband. Shook
July 9, 2003. On January 30, 2007, Gray filed a              testified that she and her husband have been
suit affecting the parent-child relationship                 "raising" G.W. for "about a year-and-a-half."


                                                                                                            -1-
                                  Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



According to Shook, she has filled the role of                to Seattle, Washington. Shook said that when
co-parent with Lucy, and since G.W. was born,                 G.W. was born, Lucy moved into Shook's home
Shook and her husband have "taken part in all                 and that for a short time, Gray took an "active
aspects of raising [G.W.] together" because                   role" and visited G.W. at least every other
Lucy "didn't know how much part [Gray] would                  weekend; however, the visits soon became
be in her life." Shook testified that G.W. spends             "sporadic."
more time with her than with Lucy and that
presently, she and her husband are primarily                       Shook testified that G.W. has started pre-
responsible      for   raising     G.W.    Shook              school and that G.W. attends gymnastics, dance
acknowledged, however, that Lucy was still                    class, and play groups with her friends.
providing care for G.W. and asked that Lucy be                According to Shook, Lucy usually spends the
appointed joint managing conservator.                         night at Shook's house and does not take G.W.
                                                              away for overnight visits because they do not
      Shook stated that it was in G.W.'s best                 want to "jerk [G.W.] back and forth." Shook
interest for Gray to be appointed possessory                  stated that she does not intend to move away
conservator and that it would significantly                   from Victoria.
impair G.W.'s physical health if the trial court
appointed Gray managing conservator. Shook                          Shook testified that Gray did not
testified that she wanted to be appointed                     acknowledge G.W. as his child while Lucy was
managing conservator with the right to                        pregnant, but after G.W. was born, a paternity
determine the residence of the child. According               test was performed. Shook stated that when
to Shook, if she were not appointed managing                  Gray was transferred to New Jersey, he did not
conservator, it would significantly impair G.W.'s             visit G.W. "real often" and that during that time,
physical health because                                       G.W. bonded with Shook and Lucy; Shook
                                                              explained that bonding means "creating a safe
        [i]f [G.W.] were to be taken                          place—a place in the relationship where a child
        away from her residence, the                          feels safe, unquestionably taken care of." Shook
        only home she's ever known,                           did not believe that G.W. bonded with Gray
        and moved across the country                          during the first year of her life. She stated that
        where she has no family, no                           after approximately two years in New Jersey,
        support system, I feel—and as                         Gray moved to Denver; during that time, he
        an educator and with a degree in                      visited
        counseling, I feel that it would
        be—and her grandmother, I feel                        [329 S.W.3d 189]
        that it would be harmful to her
        because she has a lot of                              G.W. two to three times per year. According to
        insecurities now.                                     Shook, while Gray has lived in Seattle, he has
                                                              visited G.W. three to four times per year and that
     On cross-examination, Shook stated that                  in the last year, Gray had seen G.W. "[a] little
Gray "arrived" after G.W.'s birth and that he did             more regularly." When asked, "And if you were
not participate during the pregnancy and did not              to define her world of comfort, who are the
pay for the medical expenses related to G.W's                 people that are involved in her world of comfort
birth. According to Shook, from the time of                   right now," Shook replied, "My husband,
G.W.'s birth until the time of trial, Gray had not            myself[,] ... her mother[,] and her [maternal]
had contact with G.W. on a monthly basis.                     aunt and her [maternal] uncle." Shook claimed
Shook stated that Gray has had approximately                  that Gray had not contacted G.W. by telephone
three to four visits with G.W. per year in the last           on a regular basis and that to her knowledge,
five years. Shook testified that Gray lived in                Gray had only called G.W. once since she was
Houston when G.W. was born; he then moved to                  four years old. When asked what the impact on
New Jersey, then to Denver, Colorado, and then                G.W. would be if she were removed from


                                                                                                            -2-
                                   Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



Shook's home and moved to Seattle, Shook                                [c]ounselors other than myself,
stated:                                                                 child counselors that [G.W.] has
                                                                        visited with that [sic] has told
        It would be devastating at this                                 me this and is willing to testify
        point in her life. Her world as a                               here today. It's not just my
        five-year-old revolves around                                   opinion, it's ... Any adolescent
        her safety and her security. And                                child psychology book that you
        she already worries and                                         read, when you take a child's
        obsesses over things because of                                 world away from them, the only
        the insecurity of her dad in and                                world that they know, and put
        out of her life. The only thing                                 them in another world has
        constant in her life since birth                                harmful effects.... [And G.W.]
        has been my husband and I and                                   would not have family support
        her mother has been there as a                                  [if she moved to Seattle]....
        presence.                                                       [Gray] has not one relative that
                                                                        lives in Seattle. [G.W.] in
     Shook stated that her "position is [Gray]                          Victoria has a wide family
should see [G.W.] more often, that he needs to                          support system and that is the
build a relationship and be a full part of her life,                    most important thing in her life.
not just visit occasionally" and that it would be
"devastating to [G.W.]" if Gray were allowed to                The trial court asked Shook several questions
transport G.W. to Seattle because she had "never               regarding Lucy's parental involvement. In her
been more than a night or two without [Lucy],                  answers, Shook acknowledged that Lucy does
[Shook,] or [Shook's] husband." According to                   not visit G.W. every day, does not pay any child
Shook, no relationship exists between G.W. and                 support to Shook, and that Shook still provides
Gray; therefore, Gray's visitation should be                   financial support to Lucy. When asked why
increased gradually "until [G.W.] feels safe and               Shook had possession of G.W., Shook replied:
comfortable with him at [the Shooks'] home in
Victoria or other places."                                     [329 S.W.3d 190]

     On re-direct examination, Shook stated that                        Lucy suffers from depression,
although Gray has been interested in visiting                           which she is being treated for
with G.W., "[t]he desire for seeing her more                            and sees a doctor and is trying
than he has been is sudden as of the last                               to get help. She maintains a job
hearing." Shook believed that if G.W. were                              fulltime and she struggles to
transported to Seattle, she could suffer physical                       provide a place where [G.W.]
harm, such as "stomach [aches], throwing up,                            can come. She struggles to
grinding her teeth." Shook testified that the trial                     provide a car. She's having a
court had ordered Gray to visit G.W. three times                        hard time. And she wants to be
before the end of the year 2007 because Gray                            a fulltime mother but she
had only visited G.W. once that year and that                           feels—and      we've      always
Gray had complied with the order.                                       discussed     [G.W.]      openly
                                                                        between ourselves—and we feel
     Shook denied that she and Lucy "resisted"                          together that it's better not to
allowing Gray any visitation time with G.W. and                         drag [G.W.] from one place to
that they had "always encouraged [Gray] to be                           the other. Lucy visits her at our
part of her life." When asked to substantiate her                       home and she may financially
opinion that G.W. would suffer from physical                            have to move back into our
and emotional harm if she were removed from                             home with [G.W.].
Shook's home, Shook stated that:


                                                                                                            -3-
                                 Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



Shook stated that she believes that G.W. is safer            could occur if Gray maintained                regular
living with her rather than living with Lucy and             communication. Green stated:
that she and her husband have been the "only
consistent thing" in G.W.'s life.                                     You know, from what I
                                                                      understand, the only time
      Green, a licensed clinical social worker,1                      [G.W.] interacts with [Gray] is
testified that she had been counseling G.W. for                       when he's here. There's no
two months prior to the trial due to G.W.'s                           phone calls, there's no letters,
separation anxiety. Green stated that:                                there's no little pictures sent in
                                                                      the mail, none of those things
        [G.W.]      has    had     several                            that would be appropriate
        instabilities in her life to date.                            communication with a four-
        She's been back and forth with                                year-old, which is frequent
        her biological mother and is                                  when parents are geographically
        currently residing primarily with                             distanced, they make the effort
        her biological grandmother and                                to have regular weekly phone
        step grandfather. There's been                                contact or some kind of
        inconsistencies due to the                                    interaction with a child.
        mother's difficulties, which have
        led to some anxieties in this                             According to Green, G.W. considers Shook
        child's life. She has some                           her "primary parent" and she feels "safe" in
        separation anxiety, she doesn't                      Shook's home environment. Green testified that
        like to be alone, she's very                         because of G.W.'s separation anxiety, a situation
        controlling, she's very needy,                       that causes more stress, such as allowing her to
        needs lots of attention. She                         leave her home, could cause long-term problems
        won't sleep alone in a room.
                                                             [329 S.W.3d 191]
      According to Green, stability and
consistency are very important to a child                    such as "[p]oor performance in school, poor
experiencing anxiety. Green explained that a                 socialization, difficulty in relationships" and
child G.W.'s age is not able to bond with a                  more serious problems such as depression and
person who visits every three to four months and             the risk of drug use. Green explained that
that for bonding to occur, more frequent contact             extended periods of visitation with Gray in
is necessary. When asked whether it is                       Seattle could cause G.W. to "regress, she could
detrimental to a relationship between a child and            become increasingly more anxious and more
a parent for there to be infrequent or large gaps            clingy." Green stated, "I understand that when
between visits, Green replied that it would not              she's gone on visits in the past with the father
affect the relationship in a positive manner and             she's been throwing up out of anxiety, possibly,
"as far as the two people bonding together, it's             since it's been a recurring event."
going to keep that from happening." She opined
that for a child to bond to someone, that person                  Green testified that if G.W. was removed
must be consistently in the child's life. Green              from Shook's home, she would "freak out," cling
stated that to achieve that level of bonding, the            to Shook, cry, scream, and throw up. According
person should have regular communication with                to Green, if the visitation schedule "is too
the child by mail, telephone, or "face-to-face."             accelerated," there could be problems "such as
Green testified that visits once every two months            the continued vomiting during visits ... bed-
are inadequate for bonding to occur and that she             wetting ... anxiety.... Maybe even she would
did not "feel" that G.W. had an adequate bond                become more controlling, more bossy, which
with Gray, meaning that G.W. "would sense"                   could cause problems with her peer interaction."
Gray as a stranger. Green opined that bonding


                                                                                                              -4-
                                Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



     Gray testified that he works for Skansa,                        that they would be down in a
USA Building as an engineer and his salary is                        few hours.
$85,000 a year. According to Gray, in the past,
there has been "some resistance" to his visiting            According to Gray, the visitation that was
with G.W. and that there was difficulty in                  scheduled to begin at 9:00 a.m. actually began at
exercising his last visitation with G.W. Gray               1:30 p.m., and he did not make that time up by
stated:                                                     returning G.W. later. Gray stated that his
                                                            visitation with G.W. went "exceptionally well,"
       The day prior to me making the                       they had a lot of fun together and that he and
       trip down here I called Lucy,                        G.W. have a strong healthy bond and
       her mother—G.W.'s mother,                            relationship.
       that is—and inquired where and
       when I could pick her up,                                  Gray testified that he lives with his
       understanding that it was nine,                      girlfriend, Allison, in a house he recently
       but just to confirm things. And                      purchased and that there is a bedroom for G.W.
       [Lucy] informed me that her                          Gray started a college fund for G.W. and
       daughter was out of town and                         provides health insurance for G.W., which he
       didn't know exactly when she'd                       started doing "immediately following the first
       return or where she was at that                      month of [G.W.'s] life." Gray claimed that at the
       moment but she would call and                        time of G.W.'s birth, it was "very unclear who
       inquire into that. And I asked                       the father was" and that was the reason Lucy
       her to finally return my call and                    carried her own medical insurance during the
       let me know what time the next                       pregnancy and birth.
       morning I could pick her up and
       where that would be.                                       Gray stated that he was requesting custody
                                                            of G.W. because it had become increasingly
       A few hours later, seven o'clock                     difficult to be as involved in her life as he would
       my time, nine o'clock here, I                        like to be. Gray testified that he had not been
       was getting ready to board an                        aware that G.W. lived with Shook until she filed
       overnight plane flight down                          her petition for intervention; therefore, when he
       here and I called back—I've also                     became aware of the situation, Gray decided that
       called [Shook's] house at that                       he should seek custody of G.W. Gray believed
       time to see if I could find
       someone there that could                             [329 S.W.3d 192]
       answer that question. Phone                          that G.W.'s living conditions were temporary
       calls were not answered,                             and "evolved out of convenience almost in that
       messages were left and I never                       Lucy was not taking care of [G.W.] as much as
       heard back from them.                                needed...." He also believed that he could
       And the next morning on my                           provide for G.W. and nurture and love her as
       way down from Houston in a                           much as Shook has. Gray stated:
       car, after flying in there, I made                            Lucy's interest in [G.W.'s]
       another round of calls with no                                upbringing has not been as we
       answers or return messages.                                   would hope as a parent, and I
       And then later in that morning I                              think that's even gone slightly
       got a call from [Shook],                                      less over the years and just kind
       informing me that they were in                                of withered away. I think as a
       Austin or somewhere in that                                   young mother she's been, you
       area and that they were thinking                              know, reluctant to give up parts
       about leaving relatively soon,


                                                                                                           -5-
                                  Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



        of her life that, you know, are                       to relocate from Seattle. According to Gray, if
        enjoyed by single people and it's                     G.W. moved to Seattle to live with him, due to
        put [G.W.] in an uncomfortable                        the flexibility of his work schedule, he could on
        situation there.                                      certain occasions work from home and would be
                                                              able to transport G.W. to and from her school.
      On cross-examination, Gray stated that
Lucy had not been willing to provide financial                     Gray stated that the reason he could not
support and time to G.W. but that he has done                 visit with G.W. more than once every two
so. Gray stated that he lived in New Jersey for               months is due to her inability to leave Victoria.
approximately one year and that he would be                   Gray thought that it would have been better if
"hard pressed to recall the exact number" of                  G.W. had been allowed to travel by plane to visit
times he visited G.W., but thought he saw her                 him in addition to his visits to Victoria.
every two months on average. Gray claimed that                According to Gray, for "close to three years," he
at that time, it was difficult to contact G.W., and           attempted to negotiate with Lucy a plan for
Lucy made visitation difficult for him by only                G.W. to visit him. Gray explained, "I was
allowing short, supervised visits with G.W. Gray              hoping that we could eventually work something
stated that when he lived in Colorado, he visited             out that was mutually agreeable. Eventually
G.W. on average every two months. Gray                        communications have broken down to the point
testified that he was unable to visit G.W. on a               that phone calls are unreturned, unanswered, and
monthly basis because his employer only                       they were unbending in their requests and
allowed ten days of vacation per year and                     demands." Gray acknowledged that "[v]isitation
therefore, "[t]here's not that many days in the               was highly restrained, but as a mature,
year vacationwise to do that." On cross                       responsible parent [he] always hope[d] and [his]
examination by Shook's attorney, Gray testified               goal
that in order to visit G.W. in Victoria, he is
required to take at least "three days of vacation             [329 S.W.3d 193]
wrapped around a weekend." Therefore, Gray
stated, "Ten days of vacation means you do that               was that [he and Lucy] could work out some
three times a year, you've used your vacation for             mutually agreeable terms and conditions of
that year." Gray also explained that it was                   that."
expensive to make more visits. When asked if he                     According to Gray, his bond with G.W. is
had "telephone visits" with G.W., Gray replied,               "very strong," but because of the recent
"I have in the past had many phone                            "extraordinarily strained" relations, contact with
conversations with her. In recent months phone                G.W. has not been permitted. Gray testified that
calls are unanswered, unreturned. Phone records               when he visited with G.W., she did not
could easily indicate the hundreds of phone calls             demonstrate any behaviors indicating that she
tabbed and made." No phone records were                       was suffering from separation anxiety. Gray
admitted into the record.                                     stated, "Regarding her getting sick, she's gotten
     Gray admitted that he decided not to look                sick one time in my presence. During my last
for employment in Texas although he believed                  visit I picked her up from dance and she was ill
that he could have found a job there. When                    on the way home in the car and recovered within
asked why he chose not to live in Texas if his                the hour and was playing again." Gray testified
primary consideration was G.W., Gray                          that he picked G.W. up at Lucy's residence "a
responded, "I don't believe location is exclusive             number of times" and also from Shook's
of visiting my daughter. Those two things don't               residence for visitation. Gray stated that it had
have to contradict each other in any way." Gray               been "less than a year" since he picked G.W. up
explained that moving to Seattle would allow                  at Lucy's residence.
him more visitation time with G.W. because he
made more money and he would never be asked


                                                                                                            -6-
                                   Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



     Gray claimed that he was unaware that                     Yes, I have stepped up to the plate in that I have
G.W. resided with Shook and that his "family [in               consistently been in her life. As soon as I had
Victoria] didn't know." When asked, "How hard                  any indication she wasn't living with her
do you think it would have been had you looked                 biological parent, I pressed for this, right? That's
to figure out where the child was living," Gray                why we're here today, is because I have been
responded, "How hard would it have been had I                  trying to step up to the plate and seek more and
looked? I looked as far as I could; that is, she               more time with G.W. since the day she was
clearly maintained two residences. That is, all of             born, while they have pushed very hard back
her toys were both at [Lucy's] house and she had               against that.
a lot of toys at [Shook's] house. As recently as
yesterday, for example, [G.W.] stated I live with                    Gray claimed that immediately after G.W.
[Shook]. Oh, I'm not supposed to say that."                    was born, he initiated some action, which he did
                                                               not explain, in order to assert his parental rights.
     Shook's trial counsel asked Gray if he                    Shook's attorney stated, "You haven't done
agreed with Green's testimony that it was not in               anything to establish rights to possession and
G.W.'s best "interest to be uprooted and moved                 access to medical records and to school records,
to Seattle." Gray replied, "I don't sir, in that I             you haven't done any of those things until you
believe that she's in a damaging and destructive               filed this lawsuit." Gray replied, "That's not true
environment currently and that currently her                   in that, as stated, right after she was born we
care is loving and nurturing but a little bit over             sought all those things which you just discussed
controlling and possessive in a way that may                   and...." When Shook's
lead to some of these issues." During re-cross
examination, Shook's counsel asked, "Would                     [329 S.W.3d 194]
that be in [G.W.'s] best interest to remove her
that distance from the people that have taken                  counsel asked Gray to produce the court orders
care of her during the first five years of her life,"          establishing those rights, Gray said, "We could
Gray replied:                                                  pull them up. There were court orders, there
                                                               were attorneys involved the month after she was
        Taken care of her, I don't really                      born involving just what you're discussing, sir."
        accept how you use the phrase,                         Lucy's trial counsel then asked the trial court to
        but I believe it would be in her                       take judicial notice of the fact that the pending
        best interest. They've cared for                       action was the only suit affecting the parent-
        her and I greatly appreciate                           child relationship that had been initiated and that
        what they have done to provide                         it was not filed one month after G.W. was born.
        the temporary solution they                            Gray then stated, "That's correct, it never
        have. That as a more permanent                         reached—it never reached the court at that point,
        solution I see her living with                         we were negotiating between the attorneys and it
        one of her parents, and that                           was, like I said, a standard parental—I forget the
        would be myself if the mother is                       right     term     for    it    right    now—but
        not taking care of her, which has                      acknowledgment of parent, that sort of thing that
        been the case. So, I believe that                      we went through at that time."
        it would be in my daughter's
        best interest to reside with me in                           Lucy testified that G.W. lives with Shook
        Seattle.                                               and has lived at the Shook residence for
                                                               approximately one year. Lucy stated that she and
When asked if Gray believed he had "stepped up                 Shook decided to share the parental
to the plate and assumed the responsibility a                  responsibilities because Lucy "needed help
parent should," Gray responded,                                raising" G.W. According to Lucy, she was
                                                               diagnosed with depression when she was in
                                                               eighth grade, and since then, she has been taking


                                                                                                               -7-
                                   Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



medication for that disease. After G.W. was                    days out of that time, the other three days he
born, Lucy moved in with Shook and lived there                 spent in Austin or Dallas with friends." Lucy
two or three years. Lucy stated that she believes              believed that Gray's infrequent visits have
that it is in G.W.'s best interest to continue living          "damaged" his relationship with G.W.
with Shook and that she is available to
participate in raising G.W.                                         The trial court appointed Shook managing
                                                               conservator with the right to determine G.W.'s
      Lucy denied that she ever prevented Gray                 residence and appointed Gray and Lucy
from visiting with G.W. and claimed that she                   possessory conservators. The trial court ordered
"encouraged" him to visit regularly and more                   that neither possessory conservator live in the
often. Lucy stated that it would be better for                 same residence with
G.W. if Gray had more contact with her. Lucy
also denied that she ignored Gray's telephone                  [329 S.W.3d 195]
calls. Lucy explained that the "supervised" visits
occurred when she was breast feeding G.W.,                     G.W. and Shook. The trial court entered findings
which she did for "a little over a year."                      of fact and conclusions of law, which stated in
Therefore, it was "necessary" for her to be                    pertinent part:
present during those visitations. Lucy testified                        4. The Court finds that at the
that she did not want to prevent Gray from                              time of filing of the Petition in
having visits with G.W. and that she believes it                        Intervention, Intervenor [Shook]
is "very important" for G.W. to visit Gray.                             had actual care, control, and
      Lucy stated that G.W. was "around" two                            possession of the child made the
when Gray moved to New Jersey and that she                              subject of this suit for more than
was not aware of any requests from Gray for                             six months ending no more than
G.W. to be flown to New Jersey for a visit. Lucy                        90 days preceding the date of
testified that she has concerns about allowing                          filing of the Petition in
G.W. to fly to Seattle because she suffers from                         Intervention.
separation anxiety and she would be scared due                          5. The Court finds that it is in
to her young age. Lucy agreed that she would                            the best interest of the child
work with G.W. to help her overcome her                                 made the subject of this suit that
anxiety. However, Lucy did not believe that it                          [Shook] be appointed Sole
would be in G.W.'s best interest for Gray to be                         Managing Conservator of the
appointed sole managing conservator and that it                         child made the subject of this
was in G.W.'s best interest to continue living                          suit.
with Shook.
                                                                        6. The Court finds that it is in
     On cross-examination, Lucy said that it was                        the best interest of the child
not true that Gray had placed hundreds of                               made the subject of this suit that
telephone calls to G.W. Rather, she testified that                      [Gray] be appointed possessory
before the suit was filed, Gray called                                  conservator of the child made
approximately twice a month to talk to G.W.                             the subject of this suit.
Lucy stated that Gray visited G.W. two or three
times per year, usually during a holiday like                           7. The Court finds that
Christmas or Thanksgiving. When asked why                               appointment of [Gray] as joint
Gray did not visit more often, Lucy replied, "I                         managing conservator of the
guess numerous reasons, being the expense, the                          child made the subject of this
travel expense. Other plans. For example, he had                        suit would not be in the best
a four-or five-day trip down to Texas over New                          interest of the child made the
Year's Eve once and was only in Victoria two                            subject of this suit because the


                                                                                                             -8-
                                  Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



        appointment would significantly                       Lewelling v. Lewelling, 796 S.W.2d 164, 166
        impair the child's physical                           (Tex.1990). Therefore, section 153.131 of the
        health      or       emotional                        family code requires that the parent be appointed
        development.                                          sole managing conservator or both parents be
                                                              appointed joint managing conservators unless
     Gray requested additional findings of fact               the nonparent proves by a preponderance of the
"on how appointment of a parent or the parents                credible evidence that "appointment of the
as sole or joint managing conservator in the                  parent or parents would
instant case would significantly impair the
child's   physical      health   or     emotional             [329 S.W.3d 196]
development, including, what facts, if any, in the
record, support said findings." The trial court did           not be in the best interest of the child because
not make any additional findings of fact, and this            the appointment would significantly impair the
appeal ensued.                                                child's    physical     health    or   emotional
                                                              development...." Tex. Fam.Code Ann. § 153.131
II. Standard of Review and Applicable Law                     (Vernon 2008); In re De La Pena, 999 S.W.2d
                                                              521, 527 (Tex.App.-El Paso 1999, no pet.). The
     An     appellate     court      reviews    the           family code's presumption in favor of parental
determination of conservatorship under an abuse               custody places a "heavy burden on a nonparent
of discretion standard. Whitworth v. Whitworth,               seeking custody." May v. May, 829 S.W.2d 373,
222 S.W.3d 616, 622-23 (Tex.App.-Houston                      376 (Tex.App.-Corpus Christi 1992, writ
[1st Dist.] 2007, no pet.) (op. on reh'g) (citing             denied). To rebut the presumption, "the evidence
Gillespie v. Gillespie, 644 S.W.2d 449, 451                   must support a logical inference that some
(Tex.1982)). "Under an abuse-of-discretion                    specific, identifiable behavior or conduct of the
standard, legal and factual insufficiency are not             parent will probably cause significant physical
independent grounds of error, but rather are                  or emotional harm to the child." Id. at 377. Any
relevant factors in assessing whether the trial               "close call" must be resolved in favor of the
court abused its discretion." Baltzer v. Medina,              parent over the nonparent. Chavez v. Chavez,
240 S.W.3d 469, 475 (Tex.App.-Houston [14th                   148 S.W.3d 449, 459 (Tex.App.-El Paso 2004,
Dist.] 2007, no pet.); see also Morris v. Morris,             no pet.).
No. 13-05-00297-CV, 2007 WL 2128882, at *2-
3, 2007 Tex.App. LEXIS 5878, at *6-7                          III. Analysis
(Tex.App.-Corpus Christi July 26, 2007, no pet.)
(mem. op.). The trial court abuses its discretion                  Shook relies heavily on Green's testimony
if its decision is arbitrary or unreasonable.                 that G.W. had suffered from separation anxiety
Whitworth, 222 S.W.3d at 623. A trial court may               and that because she had not bonded with Gray,
also abuse its discretion if it fails to analyze or           it would not be in her best interest to move to
apply the law correctly. In the Interest of                   Seattle. If the evidentiary burden on a nonparent
C.A.M.M., 243 S.W.3d 211, 215 (Tex.App.-                      was any evidence of any harm to the child, we
Houston [14th Dist.] 2007, pet. denied) (citing               would be required to find that the trial court
Walker v. Packer, 827 S.W.2d 833, 840                         acted within its discretion in this case. However,
(Tex.1992) (orig. proceeding)). The trial court               as we discuss below, the law requires the
does not abuse its discretion if there is some                evidence to rise above mere speculation of harm,
evidence of a substantive and probative                       and further requires the harm to be attributable
character to support the decision. Whitworth,                 to a specific, identifiable act or omission of the
222 S.W.3d at 623.                                            parent. The trial court abused its discretion, and
                                                              therefore, we sustain Gray's sole issue, because:
     "The presumption that the best interest of a             (1) Shook failed to offer any evidence of a
child is served by awarding custody to a natural              specific, identifiable act or omission by Gray
parent is deeply embedded in Texas law."                      that would be likely to harm G.W; and (2) the


                                                                                                            -9-
                                  Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



evidence of the general harm caused by                                 children, but that holding was
"uprooting" in this case is only speculative and                       based on the fact that the father
therefore could not rebut the parental                                 had been a drug user in the
presumption.                                                           recent past, and the holding was
                                                                       only made after a careful and
     A. Specific, Identifiable Act or Omission                         deliberate finding of a specific,
                                                                       identifiable act of the parent that
     Gray contends that the trial court abused its                     would significantly impair the
discretion because the record does not legally—                        child's physical health or
or even factually—demonstrate specific acts or                         emotional development. See id.
omissions by Gray that would significantly                             at 377-79.
impair the physical health or emotional
development of G.W. We agree.                                      In Lewelling, the Texas Supreme Court
                                                              emphasized the portion of the statute under
     In order for a nonparent to overcome the                 which a nonparent may obtain custody if "the
presumption that it is in the child's best interest           court finds that appointment of the parent or
to be in the custody of a parent, there must be               parents would not be in the best interest of the
evidence of "specific, identifiable" conduct by               child because the appointment would
the parent that is likely to cause harm to the                significantly impair the child's physical health
child's   physical     health     or    emotional             or emotional development." Lewelling, 796
development.2 In                                              S.W.2d at 166 (emphasis in original). After
[329 S.W.3d 197]                                              emphasizing this specific language, the court
                                                              instructed that:
May v. May, this Court wrote that the family
code                                                                   The      [statutory]     language
                                                                       requiring a showing that
        requires evidence of specific                                  appointment of the parent would
        actions or omissions of the                                    significantly impair the child's
        parent that demonstrate an
        award of custody to the parent                        [329 S.W.3d 198]
        would result in significant                                    physical       or      emotional
        physical or emotional harm to                                  development creates a strong
        the child.... In other words, the                              presumption in favor of parental
        nonparent must usually present                                 custody and imposes a heavy
        evidence affirmatively showing                                 burden on a nonparent. It is no
        conduct of the parent which will                               longer adequate to offer
        have a detrimental effect upon                                 evidence that the nonparent
        the child, such as physical                                    would be a better custodian of
        abuse,        severe       neglect,                            the child.... [T]he nonparent
        abandonment, drug or alcoholic                                 must affirmatively prove by a
        abuse or very immoral behavior                                 preponderance of the evidence
        on the part of the parent.                                     that appointment of the parent
        829 S.W.2d 373, 376-77                                         as managing conservator would
        (Tex.App.-Corpus Christi 1992,                                 significantly impair the child,
        writ denied) (citing Lewelling v.                              either physically or emotionally.
        Lewelling, 796 S.W.2d 164, 167                                 This statute thus requires the
        (Tex.1990)). In May, we                                        nonparent to offer evidence of
        ultimately held that the father                                specific actions or omissions of
        could not retain custody of the                                the parent that demonstrate an


                                                                                                             - 10 -
                                  Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



        award of custody to the parent                        above a mere speculation of harm. The record
        would result in physical or                           indicates that vomiting had occurred on only one
        emotional harm to the child.                          or two occasions out of the dozens of times
                                                              G.W. has met with her father, and on closer
Id. (internal citations omitted) (emphasis added).            review of the record, Green testified that the
Absent evidence of some specific act or                       vomiting was "possibly" caused by anxiety.
omission by Gray that would cause G.W. harm,                  Moreover, there is no evidence that all of the
the parental presumption can not be overcome.                 other alleged dangers to G.W.'s emotional
We find no such evidence in the record.                       development were more than a mere possibility.
                                                              For example, on direct examination, when
      The evidence in this case shows that the                asked, "Can you give the Court some example[s]
only possible harm to the child is the                        of what some of those additional problems might
"uprooting" itself—not any specific, identifiable             be [?]," Green responded, " sometimes
act or omission, conduct or behavior of Gray.                 depression develops, sometimes they're at risk
Therefore, it was an abuse of discretion for the              for drug use," and further responded, "
trial court to name Shook, a nonparent, sole                  oftentimes we see long-term problems."
managing conservator of G.W.                                  (Emphasis added). These are the exact types of
     B. Speculative Harm                                      speculative harms that we prohibited from
                                                              consideration in May. See May, 829 S.W.2d at
     Furthermore, even if we look at general                  377. Without consideration of this speculative
harm, not attributable to Gray's specific acts or             harm, there is no evidence whatsoever to rebut
omissions, Shook failed to present any evidence               the parental presumption. Therefore, again, we
that could overcome the parental presumption                  hold that the trial court abused its discretion in
because the evidence presented raises only                    appointing Shook,
speculative harm.
                                                              [329 S.W.3d 199]
      In May, this Court wrote that "[the] harm to
the child ... may not be based on evidence which              a nonparent,          as   G.W.'s   sole   managing
raises a mere surmise or speculation of possible              conservator.
harm." May, 829 S.W.2d at 377 (citing Kindred                 IV. Conclusion
v. Con/Chem., Inc., 650 S.W.2d 61, 63
(Tex.1983); Briones v. Levine's Dept. Store,                        Because we hold that the trial court abused
Inc., 446 S.W.2d 7, 10 (Tex.1969)).                           its discretion by appointing Shook to be G.W.'s
                                                              sole managing conservator, we sustain Gray's
     Shook essentially relies on one theory of                sole issue. Having failed to meet her burden,
harm in order to justify the trial court's judgment           Shook may not maintain any legal custodial
that Shook had overcome the parental                          rights over G.W. "In most circumstances, a
presumption. That theory can be summarized as                 judgment is reversed and rendered when a legal
follows: (1) Green testified that G.W. suffers                sufficiency challenge is sustained." Chavez, 148
from "some" separation anxiety; (2) this anxiety              S.W.3d at 461. However, we are permitted to
has caused "recurring vomiting" in the past,                  remand a case such as this "when the interest of
could effect her peer relationships in the future,            justice so requires." Id. (citing Tex.R.App. P.
and may lead to other long-term problems; and                 43.3). In this case, the trial court held in Shook's
(3) these harms can be prevented if G.W.                      favor, making it unnecessary for that court to
remains with Shook because G.W. feels safe                    determine G.W.'s best interest as it related to the
with Shook and G.W. has not bonded with Gray.                 custodial or visitation rights that should exist
      Evidence of sporadic, past vomiting and the             between Gray and Lucy only. Because of this,
possibility of negative effects on peer                       and because we have overturned the trial court's
relationships is insufficient evidence to rise                ruling designating Shook as sole managing


                                                                                                             - 11 -
                                  Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



conservator, we find it to be in the interest of              experiences anxiety. Green testified that
justice not to simply render judgment in Gray's               consistency is also an important factor in
favor. Further, more than a year has passed since             bonding with a child and that when there are
the custodial hearing; circumstances may have                 infrequent visits or large gaps between the visits,
changed during this time such that it would not               bonding will not occur. Green opined that a
be in G.W.'s best interest to appoint Gray as her             child is unable to bond with a person who only
sole managing conservator, and we have no                     visits the child three or four times per year. The
ability to determine the present circumstances of             evidence showed, although contradicted by
any of the parties, nor do we have the luxury of              Gray, that he had only visited G.W. three or four
sitting as a fact-finder. For the forgoing reasons,           times per year since he moved away from
we remand this case to the trial court for                    Texas.4 Furthermore, according to Green, G.W.
custodial hearings to determine the rights as                 viewed Gray as a stranger, and Gray has not
between Gray and Lucy only.                                   bonded with G.W. because he has not spent
                                                              enough time with her. Green stated that in order
   Dissenting Opinion by Justice LINDA                        to bond with G.W., more frequent contact was
REYNA YAÑEZ.                                                  necessary.
     Dissenting Opinion by Justice YAÑEZ.                           According to Green, after visiting Gray,
                                                              G.W. has vomited due to her anxiety. Green
     I respectfully dissent to the majority's                 testified that G.W. would "freak out" if she was
conclusion that the trial court abused its                    removed from Shook's home and that she would
discretion in this case. A trial court does not               vomit, scream, and cry. Due to G.W.'s
abuse its discretion when there is some evidence              separation anxiety, Green stated that the added
of a substantive and probative character to                   stress of removing her from Shook's home could
support its decision.1 In some cases, the parental            cause numerous problems for G.W.
presumption can be rebutted by other evidence
establishing the statutorily required negative                      Shook testified that G.W. has lived in her
effect on the child even when there is no                     home since she was born, that she has been
evidence       establishing    any      particular            "raising" G.W. for approximately a year-and-a-
blameworthy act of the parent.2 "Because safety,              half, and that G.W. spends more time with
security, and stability are critical to child                 Shook than with Lucy. According to Shook, it
development, the danger of uprooting a child                  would significantly impair G.W.'s physical
may in some instances rise to a level that                    health if Gray was appointed managing
significantly impairs the child's emotional                   conservator because G.W. would be removed
development." 3                                               from the "only home she's ever known." Shook
                                                              testified that G.W. had never been away from
     Here, Green testified that G.W. suffers                  Shook, Shook's husband, or Lucy for more than
from separation anxiety, a condition she defined              "a night or two." Shook stated that G.W. has
as a fear of being separated from either the                  bonded with her and that it would be
parent or person of significance. Green testified             "devastating" to G.W. if she were removed from
that G.W. considers Shook her "primary parent"                Shook's home. Shook testified that G.W. would
and feels "safe" in Shook's home. The evidence                suffer harmful effects if removed from her home
showed that G.W. has lived with Shook since                   because she would not have any family support
she was born and has never known another                      in Seattle. Shook stated that appointing Gray
home.                                                         managing conservator and removing G.W. from
     Green stated that stability and consistency              Shook's home would have harmful effects.
are very important to a child who                                   In this case, there was evidence presented
[329 S.W.3d 200]                                              that the danger of uprooting G.W. from Shook's
                                                              home would significantly impair G.W.'s


                                                                                                            - 12 -
                                     Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



physical health and emotional development.5                               Texarkana Court relied on the
Therefore, the trial court could have reasonably                          proposition that a nonparent may
concluded from the evidence that appointing                               be awarded custody of a child
Gray managing conservator would have the                                  without a blameworthy act of the
                                                                          parent; the opinion seems to merely
statutorily required negative effect on G.W. 6
                                                                          state this proposition in dicta. See
Because there is some evidence of a substantive                           id.
and probative character to support the trial
court's decision, I believe that the trial court did                      Second, in In re Rodriguez, the
not abuse its discretion by concluding that                               facts are again distinguishable in a
Gray's appointment as managing conservator                                meaningful way from the present
would significantly impair G.W.'s physical                                case. 940 S.W.2d 265, 266-70
health or emotional                                                       (Tex.App.-San Antonio 1997, writ
                                                                          denied). In that case, the birth
[329 S.W.3d 201]                                                          mother gave the child up for
                                                                          adoption and relinquished all
development.7 Therefore, I would affirm the trial                         parental rights, and the father had
court's judgment.                                                         met the child only twice in the
                                                                          child's life. Id. at 267-69.
     1
      There is no evidence that Green had obtained                        Moreover, there was evidence
a medical degree, and she did not claim to be a                           presented that all interactions and
psychologist or psychiatrist.                                             visitations were initiated and
                                                                          facilitated by the child's paternal
     2
       The dissent cites three cases from our sister                      grandmother, not by the father
courts to support the proposition that a nonparent                        himself indicating a lack of concern
may be awarded custody even without a blameworthy                         for the child, especially in the
act of the parent. Each of those cases is                                 child's early life, which the
distinguishable from the present case, and moreover,                      evidence does not support in this
the precedent in those cases is not binding on this                       case. Id. at 269-70. Additionally,
Court.                                                                    the majority for the San Antonio
                                                                          Court wrote that it didn't believe
         First, in In re G.R.W., the                                      that "[section] 153.131, Texas
         Texarkana Court was dealing with                                 Family Code contemplates that the
         circumstances much different from                                environment which 'significantly
         those in this case. 191 S.W.3d 896,                              impairs the child's physical health
         898-900        (Tex.App.-Texarkana                               or emotional development' must be
         2006, no pet.). In that case, the                                the product of some act or omission
         father of the child had been                                     on the part of the natural parent,"
         indicted for sexual assault of the                               which we consider to be a blatant
         mother for the very sexual                                       misstatement of the law. We concur
         encounter that led to the birth of the                           with Justice Carr's dissent insofar
         child, and the father was convicted                              as it applies to this case. In
         of the lesser offense of child                                   response to the majority, Justice
         endangerment.       Id.    at    898.                            Carr wrote:
         Moreover, the court pointed to the
         fact that the father was a smoker                                [W]hile I agree with the majority
         and that the child had severe                                    that our record reflects "that there
         respiratory problems. Id. at 900-01.                             is no evidence that any act or
         These facts establish specific,                                  omission, behavior, or conduct by
         identifiable acts of the parent that                             [the father] will impair [the child],"
         would be likely to impair the                                    I respectfully dissent because,
         physical health or emotional                                     unlike the majority, I do not agree
         development of the child. Further,                               that this case is a case of first
         there is no indication that the                                  impression nor distinguishable



                                                                                                                   - 13 -
                                       Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)



         from Lewelling v. Lewelling, 796                          parent, the parental presumption can be rebutted by
         S.W.2d 164 (Tex.1990). I would                            other evidence establishing the statutorily required
         hold on this legal issue that                             negative effect on the child."); In re Rodriguez, 940
         Lewelling is controlling; and, that                       S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997,
         at the present time [and] under the                       writ denied) (concluding that nonparent had rebutted
         current state of Texas laws, the                          parental presumption solely by producing evidence
         Lewelling standard that non-parents                       that the effect on the child of being removed from the
         seeking custody here cannot benefit                       only home she had ever known would be
         from their bonding or attachment                          "devastating").
         with the child by "offering it as
                                                                         3
         some evidence of significant                                    Chavez v. Chavez, 148 S.W.3d 449, 458-59
         impairment to [the child]." Id. at                        (Tex.App.-El Paso 2004, no pet.) (citing De La Pena,
         168. Accordingly, because [the                            999 S.W.2d at 529).
         nonparent's] significant impact
                                                                         4
         argument was rejected by our                                      I note that Green testified that even visits with
         Supreme Court in Lewelling, we                            a child once every two months, as Gray claimed he
         are required to reject the same                           did, is inadequate for bonding to occur.
         argument here.
                                                                         5
                                                                          See In re G.R.W., 191 S.W.3d at 900; Chavez,
         Id. at 275 (Carr, J., dissenting).                        148 S.W.3d at 458-59; In re Rodriguez, 940 S.W.2d
                                                                   at 273-75.
         Third, in Chavez v. Chavez, the
         mother who was seeking to                                       6
                                                                            See Tex. Fam.Code Ann. § 153.131; In re
         reacquire custody was shown to be                         G.R.W., 191 S.W.3d at 900; Chavez, 148 S.W.3d at
         a drug user and there was evidence                        458-59; De La Pena, 999 S.W.2d at 529 ("We also
         that she was physically abusive.                          agree that because safety, security, and stability are
         148 S.W.3d 449, 453 (Tex.App.-El                          critical to child development, the danger of uprooting
         Paso 2004, no pet.). The El Paso                          a child may in some instances rise to a level that
         Court overturned the trial court's                        significantly impairs the child's emotional
         ruling against the mother on other                        development."); In re Rodriguez, 940 S.W.2d at 270-
         grounds and never actually reached                        75; see also In the Interest of R.T.K., 324 S.W.3d
         the issue of whether these specific,                      896, 905 (Tex.App.-Houston [14th Dist.] 2010, no
         identifiable acts or some other                           pet.) (mem. op.) (concluding that the record
         reason would prevent the mother                           sufficiently supported the trial court's conclusion that
         from maintaining custody of the                           the nonparent rebutted the presumption found in
         children. Id. at 459. If the dissent                      section 153.131(a) because based on the evidence
         agrees with the reasoning in                              presented, the trial court could have reasonably
         Chavez, it should at least recognize                      concluded that removal of the child from "the only
         the present case as a "close call,"                       home he has known" would significantly impair his
         and settle any doubt in favor of the                      emotional development).
         parent, as the El Paso Court
                                                                         7
         required. See id.                                                 See Whitworth, 222 S.W.3d at 623; see also In
                                                                   the Interest of C.A.M.M., 243 S.W.3d at 214-15 ("But
     1
        Whitworth v. Whitworth, 222 S.W.3d 616, 623                the fact that a trial court may decide a matter within
(Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on               its discretionary authority in a different manner from
reh'g).                                                            an appellate court in a similar circumstance does not
     2
                                                                   demonstrate an abuse of discretion.") (citing Downer
      In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.-                 v. Aquamarine Operators, Inc., 701 S.W.2d 238,
Texarkana 2006, no pet.) ("In fact, even without                   241-42 (Tex.1985)).
evidence establishing any blameworthiness of the




                                                                                                                       - 14 -
                         Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)



                                            381 S.W.3d 540
                                         56 Tex. Sup. Ct. J. 10
                                     Ann Wood SHOOK, Petitioner,
                                                  v.
                                      David GRAY, Respondent.
                                             No. 11–0155.
                                       Supreme Court of Texas.
                                             Oct. 5, 2012.


Summaries:
                                                              PER CURIAM.
Source: Justia
                                                                    G.W., David Gray and Lucy Wood's nine-
G.W., David Gray and Lucy Wood's nine-year-                   year-old daughter, has lived with her maternal
old daughter, had lived with her maternal                     grandmother, Ann Shook, for her entire life.
grandmother, Ann Shook, for her entire life. The              Although G.W.'s parents have been in and out of
trial court appointed Shook as G.W.'s sole                    her life to varying degrees since she was born,
managing conservator and named Gray and                       no one disputes that at the time of the custody
Wood as G.W.'s possessory conservators. The                   hearing the grandmother's home was the only
court of appeals reversed, holding that the trial             home G.W. had ever known. We are asked to
court abused its discretion in naming Shook, a                decide whether the court of appeals erred by
nonparent, as G.W.'s sole managing conservator                remanding this case to the trial court for
because Shook failed to present any evidence                  hearings to determine the custody and visitation
that could overcome the presumption that a                    rights as between Gray and Wood only. We
parent should be named as managing                            grant Shook's motion for rehearing of her
conservator. The court then remanded the case                 petition for review and, pursuant to Rule 59.1 of
to the trial court to determine the custody and               the Rules of Appellate Procedure, hold that, by
visitation rights as between Gray and Wood                    barring the trial court from considering Shook,
only. The Supreme Court affirmed the court of                 the court of appeals unduly restricted the trial
appeals' judgment remanding the case but                      court's ability to protect the child's best interest.
reversed to the extent the judgment limited the
trial court's consideration of the role Shook                      When G.W. was three-and-a-half years old,
should play in G.W.'s life, whether as                        Gray filed an original suit affecting the parent-
conservator or a person with defined access                   child relationship requesting that he and Wood
rights.                                                       be appointed joint managing conservators and
                                                              that Wood be given the primary right to
                                                              establish G.W.'s residence.1 Shook intervened on
                                                              the basis that she “has had actual care, control,
                                                              and possession of [G.W.] for more than 6
     [381 S.W.3d 541]                                         months ending no more than 90 days preceding

                                                                     [381 S.W.3d 542]
Cynthia T. Sheppard, Attorney at Law, Cuero,
Jack W. Marr, Marr, Meier & Bradicich LLP,                    the date of filing of [the] petition.” SeeTex.
Victoria, for Petitioner.                                     Fam.Code § 102.003(a)(9). She requested that
                                                              she and Wood be appointed joint managing
Audrey Mullert Vicknair, Law Office of Mullert                conservators and that she be named the joint
Vicknair, William A. Dudley, Law Office of                    managing conservator with the exclusive right to
William A. Dudley, P.C., Corpus Christi, David                designate G.W.'s primary residence. She also
S. Kidder, Dallas, for Respondent.                            asked that Gray be appointed possessory


                                                                                                               -1-
                          Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)



conservator. Subsequently, Gray amended his                    the custodial hearing; circumstances may have
petition to request that the trial court appoint               changed during this time such that it would not
him joint managing conservator with the                        be in G.W.'s best interest to appoint Gray as her
exclusive right to establish G.W.'s residence.                 sole managing conservator, and we have no
Gray did not specify who should be named the                   ability to determine the present circumstances of
other joint managing conservator.                              any of the parties, nor do we have the luxury of
                                                               sitting as a fact-finder. For the forgoing reasons,
     Shortly after G.W. was born, G.W. and her                 we remand this case to the trial court for
mother moved into Shook's home in Victoria,                    custodial hearings to determine the rights as
Texas. At the time of the custody hearing, when                between Gray and [Wood] only.
G.W. was almost five years old, G.W. still lived
with Shook. Wood had moved out of Shook's                      329 S.W.3d at 199. Shook contends that the
home to live on her own two years earlier, and                 court of appeals should not have precluded the
Gray had lived in Houston, New Jersey,                         trial court from considering her role in G.W.'s
Colorado, and Seattle between G.W.'s birth and                 life on remand. We agree.
the time of the custody hearing. The trial court
appointed Shook as G.W.'s sole managing
conservator and named Gray and Wood as
G.W.'s possessory conservators.                                        By foreclosing the trial court from
                                                               considering Shook on remand, the trial court
     The court of appeals reversed, holding that               may be unable to protect G.W.'s best interest.
the trial court abused its discretion in naming                Tex. Fam.Code § 153.002 (“The best interest of
Shook, a nonparent, as G.W.'s sole managing                    the child shall always be the primary
conservator because Shook failed to present any                consideration of the court in determining the
evidence that could overcome the presumption                   issues of conservatorship and possession of and
that a parent should be named as managing                      access to the child.”). As the court of appeals
conservator. 329 S.W.3d at 198–99;Tex.                         pointed out, it had “no ability to determine the
Fam.Code § 153.131 (stating that a parent shall                present circumstances of any of the parties, nor
be appointed as a sole managing conservator or                 d[id it] have the luxury of sitting as a fact-
both parents shall be appointed as joint                       finder.” Id. That statement illustrates the
managing conservators “unless the court finds                  problem with remanding for custodial hearings
that appointment of the parent or parents would                between Gray and
not be in the best interest of the child because
the appointment would significantly impair the                        [381 S.W.3d 543]
child's    physical    health    or    emotional               Wood only. The trial court must be able to
development”). Additionally, the court of                      consider the changed circumstances. G.W. is
appeals remanded the case for the trial court to               now nine years old and over four years have
reconsider the conservatorship and access rights               passed since the trial court issued its order. Even
between Gray and Wood only and explained:                      assuming Shook previously failed to present
      [T]he trial court held in Shook's favor,                 evidence capable of overcoming the parental
making it unnecessary for that court to                        presumption, it does not follow that she will
determine G.W.'s best interest as it related to the            necessarily be unable to overcome the parental
custodial or visitation rights that should exist               presumption under the present circumstances.
between Gray and [Wood] only. Because of this,                       Moreover, Shook pled and established
and because we have overturned the trial court's               general standing to file a suit for conservatorship
ruling designating Shook as sole managing                      and access, as someone who has had care,
conservator, we find it to be in the interest of               control, and possession of a child for the
justice not to simply render judgment in Gray's                designated time. Tex. Fam.Code § 102.003
favor. Further, more than a year has passed since


                                                                                                              -2-
                            Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)



(authorizing suit by “a person, other than a foster              consideration of the role Shook should play in
parent, who has had actual care, control, and                    G.W.'s life, whether as conservator or a person
possession of the child for at least six months                  with defined access rights. Tex.R.App. P. 59.1.
ending not more than 90 days preceding the date
of the filing of the petition”). Shook's inability to
overcome the parental presumption does not                       --------
deprive her of standing to be considered for
conservatorship or access. If Shook fails to                     Notes:
overcome the presumption that a parent should                            In his petition, Gray stated, “The best
                                                                        1.
be named managing conservator on remand, the                     interest of [G.W.] will be served by the
trial court may still name Shook as a possessory                 appointment of Lucy Wood as joint managing
conservator or grant her access if that would be                 conservator with the exclusive right to designate
in G.W.'s best interest.                                         the primary residence of the child, and [Gray] so
     Thus, we conclude that the court of appeals                 requests.” Gray further requested that
erred in preventing the trial court from                         “appropriate orders be made for access to the
considering Shook for conservatorship of or                      child and the allocation of the rights and duties
access to G.W. Accordingly, without hearing                      of the conservators.” Although Gray does not
oral argument, we affirm the court of appeals'                   explicitly state the type of conservatorship he
judgment remanding the case, but reverse to the                  sought, we infer that he wished to be named a
extent the judgment limits the trial court's                     joint managing conservator.




                                                                                                              -3-
