Opinion filed November 14, 2014




                                              In The


           Eleventh Court of Appeals
                                           __________

                                    No. 11-14-00140-CV
                                        __________

  IN THE INTEREST OF M.J.C.B., JR. AND M.J.B., CHILDREN


                        On Appeal from the 118th District Court
                                    Howard County, Texas
                                Trial Court Cause No. 48,789


                          M E M O RAN D U M O PI N I O N
       Appellant is the father of the children at issue in this appeal: M.J.C.B., Jr.
and M.J.B.1 The trial court entered an order in which it appointed the children’s
maternal grandparents as joint managing conservators and the parents as
possessory conservators of the children. Appellant filed a notice of appeal; the
mother did not. We reverse in part, affirm in part, and remand.

       1
         We note that another child, N.B.H., was involved in this proceeding at the trial court level.
However, Appellant is not the father of N.B.H., and none of the parties below have appealed with respect
to the portion of the trial court’s order that relates to N.B.H. In this opinion, we use the term “the
children” to refer to M.J.C.B., Jr. and M.J.B.
                                      I. Issues
      Appellant presents four issues for review. In his first and second issues,
Appellant asserts that the evidence is legally and factually insufficient to support
the trial court’s finding that appointing Appellant as the managing conservator of
his son, M.J.C.B., Jr., would not be in the child’s best interest. In his third and
fourth issues, Appellant makes the same contentions with respect to his daughter,
M.J.B.    Appellant specifically argues that the evidence failed to show that
appointing him to be the children’s managing conservator would significantly
impair the children’s physical health or emotional development.
                                II. Conservatorship
      We review a determination of conservatorship for abuse of discretion.
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Under this standard, legal
and factual sufficiency challenges are not independent grounds of error but factors
used to determine whether the trial court abused its discretion. In re A.D.A.,
No. 11-12-00002-CV, 2012 WL 4955270, at *1 (Tex. App.—Eastland Oct. 18,
2012, no pet.) (mem. op.) (citing Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex.
App.—San Antonio 2007, no pet.), and London v. London, 192 S.W.3d 6, 14 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied)). The best interest of the child is
always the primary consideration of the court in determining managing
conservatorship. TEX. FAM. CODE ANN. § 153.002 (West 2014).
      Although trial courts are afforded broad discretion in deciding family law
questions, the legislature has explicitly limited the exercise of that discretion when
a nonparent seeks to be appointed as managing conservator.              Lewelling v.
Lewelling, 796 S.W.2d 164, 168 (Tex. 1990).             When a court determines
conservatorship between a parent and a nonparent, a presumption exists that
appointing the parent as the sole managing conservator is in the child’s best


                                          2
interest; this presumption is deeply embedded in Texas law. FAM. § 153.131;
Lewelling, 796 S.W.2d at 166. Section 153.131(a) provides:
      [U]nless 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.
The statutory language in Section 153.131(a) creates a strong presumption in favor
of parental custody and imposes a heavy burden on a nonparent. Lewelling, 796
S.W.2d at 167. Evidence showing that the nonparent would be a better custodian
of the child does not suffice, and close calls should be decided in favor of the
parent. Id. at 167–68. The nonparent may rebut the presumption with affirmative
proof, by a preponderance of the evidence, that appointing the parent as managing
conservator would significantly impair the child, either physically or emotionally.
Id. at 167; see also In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).
      Usually, the nonparent must present evidence that shows a parent’s conduct
would have a detrimental effect. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.
App.—Corpus Christi 2010), aff’d in part and rev’d in part, 381 S.W.3d 540 (Tex.
2012); see Lewelling, 796 S.W.2d at 167. But see In re Rodriguez, 940 S.W.2d
265, 267 (Tex. App.—San Antonio 1997, writ denied) (determining that case
before it was unique and distinguishable and holding that the Lewelling standard—
which requires the nonparent to offer evidence of specific actions or omissions of
the parent in order to show that awarding custody to the parent would result in
physical or emotional harm to the child—did not apply and that the only applicable
standard was the standard from Section 153.131(a)). In Gray, the child’s father
was absent for most of the child’s life, and the maternal grandmother claimed that
placing the child with her father would cause the child to cry, scream, throw up,

                                         3
and wet the bed. 329 S.W.3d at 191. Additionally, the grandmother contended
that removing the child could cause the child to be more bossy and affect
relationships with her peers. Id. A social worker testified that the vomiting was
“possibly” caused by anxiety and that, in similar situations, “sometimes depression
develops, sometimes they’re at risk for drug use.” Id. at 198. Because the only
evidence of possible harm to the child was “the ‘uprooting’ itself—not any
specific, identifiable act or omission, conduct or behavior of [the father],” the court
concluded that it was an abuse of discretion for the trial court to name a nonparent
as sole managing conservator.        Id.   Furthermore, the court concluded that
“[e]vidence of sporadic, past vomiting and the possibility of negative effects on
peer relationships” did not rise above the mere speculation of harm. Id.
      In the present case, only four witnesses testified at trial: a caseworker for the
Department of Family and Protective Services, a CASA volunteer, the father of the
mother’s other child, and Appellant. None of these witnesses offered any evidence
that would indicate that the children’s physical health or emotional development
would be significantly impaired if Appellant were appointed their managing
conservator.
      The Department’s conservatorship caseworker, Sharon Mitchell, testified
that she had been involved with the children since the initial onset of this case.
The children were placed with their maternal grandmother, with whom the children
had lived “off and on most all of their life.” The children remained with the
maternal grandparents while this case was pending in the trial court.             The
Department did not seek to terminate the parents’ rights. Mitchell recommended
that the children be transitioned to Appellant’s care. In order to avoid trauma to
the children, the Department recommended that the transition be monitored by the
Department because “the children do not know him.” Appellant had been absent
from the children’s lives for approximately two years. It was Mitchell’s opinion
                                           4
that the transition and monitored return would be in the children’s best interest.
During the transition period, the Department expected for the children and
Appellant to communicate “by Skype through the counselor” 2 and for the children
to fly to Montana with Mitchell for visits with Appellant that would last “a day or
so.”
       Mitchell did, however, express some concern about separating the children
from the mother’s other child, N.B.H., because of the bond between the three
children. Even though the Department planned for the children to eventually live
in Montana with Appellant, Mitchell recommended that the children maintain
regular contact with N.B.H. and the children’s grandparents.
       The CASA volunteer, Deborah Martin, testified that she had visited with the
children at least once a month while this case was pending and had developed a
relationship with them.          According to Martin, CASA recommended that the
children be placed permanently with their grandparents and that Appellant be given
only possessory conservatorship. Martin testified that her recommendation was
based upon Appellant’s participation in the children’s lives, Martin’s interaction
with the children, and the children’s development during this case. The children
had flourished while in the care of their grandparents. Martin did not think that it
would be a good idea for the children to move to Montana “to live with [Appellant]
at this time.” She noted the rather lengthy time that he had been absent from the
children’s lives, but she agreed that Appellant “should be a part of their lives.”
Martin testified that her preference would be for the children to live with their
grandparents permanently but that, “[a]s an alternative, [she] would be in
agreement” with transitional visitations with Appellant that would eventually lead
to the children going to live with Appellant.
       2
        “Skype” is a free or low-cost service that allows individuals to complete voice and video
conferences through televisions, telephones, computers, or other mobile communication devices that are
equipped with a “webcam” and an internet connection.

                                                  5
      At the time of trial, Appellant had lived in Montana for three years. He
resided in Montana when the Department became involved with the children, who
at the time were in their mother’s care. By all accounts, Appellant was financially
stable, was gainfully employed, and had a home in Montana that had been
approved by the Department after a home study was conducted.
      Because no evidence was offered at trial that would show that the
appointment of Appellant as the children’s managing conservator would
significantly impair the children’s physical health or emotional development, the
trial court abused its discretion in failing to appoint Appellant as a managing
conservator of M.J.C.B., Jr. and M.J.B. Appellant’s issues are sustained.
                              III. This Court’s Ruling
      We reverse the order of the trial court insofar as it relates to the
conservatorship of M.J.C.B., Jr. and M.J.B., and we remand the cause to the trial
court for reconsideration of that issue. See Shook v. Gray, 381 S.W.3d 540, 543
(Tex. 2012) (remanding cause to reconsider conservatorship). We affirm the order
of the trial court in all other respects. Because this suit was tried as a child
protection case, we are of the opinion that any proceeding on remand to the trial
court must be commenced within 180 days of this court’s mandate in accordance
with Rule 28.4 of the Texas Rules of Appellate Procedure. TEX. R. APP. P. 28.4.




                                                    MIKE WILLSON
                                                    JUSTICE


November 14, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.

                                         6
