                                       In The
                                  Court of Appeals
                         Seventh District of Texas at Amarillo

                                          No. 07-19-00327-CV


                             IN THE INTEREST OF A.J.H., A CHILD

                              On Appeal from the 84th District Court
                                    Hansford County, Texas
                  Trial Court No. CV05522, Honorable Curt Brancheau, Presiding

                                           March 11, 2020

                                 MEMORANDUM OPINION
                          Before QUINN, C.J., and PIRTLE and DOSS, JJ.


        Appellant, B.H., appeals the trial court’s order appointing B.H. as possessory

conservator of A.J.H., his son, and L.H./C.H., A.J.H.’s paternal grandparents, as A.J.H.’s

joint managing conservator1 with the rights and duties set forth in section 153.371.2 In




        1
        To protect the privacy of the parties, we refer to them by their initials. See TEX. FAM. CODE ANN.
§109.002(d) (West Supp. 2019). See also TEX. R. APP. P. 9.8(b). Throughout the remainder of this
memorandum opinion, we will refer to the provisions of the Texas Family Code as “section ____” or “§____.”

        2 The Texas Department of Family and Protective Services (Department) filed termination

proceedings against A.J.H.’s father and mother. A.J.H.’s grandparents intervened seeking an appointment
as A.J.H.’s joint managing conservator. See Whitworth v. Whitworth, 222 S.W.3d 616, 621 (Tex. App, —
Houston [1st Dist.] 2007, no pet.). Although the parental rights of A.J.H.’s mother were terminated, she did
not appeal.
presenting this appeal, appointed counsel has filed an Anders3 brief in support of his

motion to withdraw. We affirm the trial court’s order and defer ruling on counsel’s motion

to withdraw.


                                                Background


        After receiving a 911 call from A.J.H.,4 the police contacted the Department when

they found B.H. unconscious on the ground and lying in his own vomit.                             B.H.’s

unconscious state was induced by a combination of marijuana, methamphetamine,

amphetamine, and excessive alcohol consumption.                      The Department initiated an

investigation and ultimately removed A.J.H. from B.H.’s care after finding that A.J.H. was

in immediate danger to his physical health or safety and a victim of neglect. B.H. had two

prior intakes received by the Department due, in part, to drug and alcohol abuse.5 A.J.H.

was placed with his paternal grandparents.


        At the final hearing, the Department’s evidence established that B.H. had an

extensive history of drug and alcohol dependency, coupled with multiple drug-related

arrests and periods of unemployment. These circumstances required A.J.H. to stay with

his grandparents for months at a time. During the proceedings below, B.H. tested positive

for marijuana and methamphetamine use, refused to cooperate with the Department,

failed to complete any of his services required by the court-ordered service plan, and


        3 Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967); In the Interest of
R.M., No. 02-18-00004-CV, 2018 Tex. App. LEXIS 3565, at 21 (Tex. App.—Fort Worth May 21, 2018, no
pet.). See In re K.M., 98 S.W.3d 774, 776-77 (Tex. App.—Fort Worth 2003, no pet.) (reasoning that Anders
procedures apply in non-criminal appeals where appointment of counsel is mandated by statute).

        4   A.J.H. is now a thirteen-year-old male.
        5
        In one instance, police arrested B.H. for public intoxication and assault while A.J.H. was outside
the home observing B.H.’s behavior.

                                                      2
failed to appear for a court-ordered drug screen. B.H. testified that he supported his wife’s

use of marijuana during pregnancy as a mood stabilizer. He also admitted using drugs

outside of A.J.H.’s presence and being under their influence in his presence. He indicated

that his girlfriend, M.D., was the sober influence in his household when he had possession

of A.J.H. During the proceedings, however, she also tested positive for drug use.


        A.J.H.’s grandparents, on the other hand, provided him with a stable, drug-free

household. They had a close relationship and A.J.H. bonded with them. His performance

at school and physical health were good. His grandparents arranged for him to receive

counseling for depression and adjustment disorder.                    Under the circumstances, the

Department’s caseworker recommended that A.J.H. remain with his grandparents and

opined that it would not be in A.J.H.’s best interest if B.H. was appointed as a managing

conservator. After speaking with A.J.H. in chambers, the trial court determined that

appointing either, or both, of A.J.H.’s parents as managing conservator would not be in

A.J.H.’s best interest because the appointment would significantly impair A.J.H.’s physical

health or emotional development. The trial court then appointed B.H. as his possessory

conservator with conditions, and A.J.H.’s paternal grandparents, as his joint managing

conservator.6


                                             Applicable Law


        A trial court abuses its discretion if it acts arbitrarily and unreasonably or without

reference to any guiding legal principles. Downer v. Aquamarine Operators, Inc., 701


        6 An attachment to the order required, among other things, that B.H. would not have any physical

contact with A.J.H. until after he passed four consecutive hair strand drug screens taken no less than ninety
days apart. If this condition were satisfied, he would be permitted one visitation per month that would be
supervised by a grandparent.

                                                     3
S.W.2d 238, 241-42 (Tex. 1985). Therefore, a trial court’s appointment of a non-parent

as sole managing conservator may not be reversed unless it is determined that the

appointment was arbitrary and unreasonable. In the Interest of J.Y., 528 S.W.3d 679,

686 (Tex. App.—Texarkana 2017, no. pet.).


       A trial court may abuse its discretion by ruling without supporting evidence. Ford

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

not occur when the trial court bases its decision on conflicting evidence and some

evidence of substantive and probative character supports its decision. In the Interest of

S.T., 508 S.W.3d 482, 491 (Tex. App.—Fort Worth 2015, no pet.) (citing Unifund CCR

Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 2009)). In sum, to determine whether an abuse

of discretion had occurred an appellate court reviews the record to determine whether

viewing the evidence in a light most favorable to the trial court’s decision and indulging

every legal presumption in favor of its judgment; In the Interest of J.Y., 528 S.W.3d at

686, the trial court made a reasonable decision in its appointment of a non-parent as sole

managing conservator.


       The primary consideration in determining conservatorship is always the best

interest of the child. § 153.002. There is a presumption that it is in the child’s best interest

to have the natural parent appointed as managing conservator; In the Interest of J.Y., 528

S.W.3d at 686, however the presumption may be rebutted by a showing that appointment

of the parent as a managing conservator would not be in the child’s best interest because

“it would significantly impair the child’s physical health or emotional development.”

§ 153.131 (a), (b).



                                               4
       Impairment of the child’s physical health or emotional development must be proved

by a preponderance of the evidence showing “specific actions or omissions of the parent

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

child.” In the Interest of J.Y., 528 S.W.3d at 686 (citing Lewelling v. Lewelling, 796 S.W.2d

164, 167 (Tex. 1990)). Generally, acts or omissions that constitute significant impairment

include, but are not limited to, physical abuse, severe neglect, abandonment, drug or

alcohol abuse, or immoral behavior by the parent. Id. See also In the Interest of S.T.,

508 S.W.3d at 492 (collected cases cited therein). “Other considerations may include

parental irresponsibility, a history of mental disorders and suicidal thoughts, frequent

moves, bad judgment, child abandonment, and an unstable, disorganized, and chaotic

lifestyle that has put and will continue to put the child at risk.” Id. (collected cases cited

therein).


Anders v. California


       In support of his motion to withdraw filed in conjunction with B.H.’s brief, counsel

certifies he has conducted a conscientious examination of the entire record, and in his

opinion, the record reflects no potentially plausible basis to support an appeal. In re

D.A.S., 973 S.W.2d 296, 297 (Tex. 1998). See Anders, 386 U.S. at 744. Counsel has

demonstrated that he has complied with the requirements of Anders by (1) providing a

copy of the brief to B.H. and notifying him of his right to file a pro se response if he desired

to do so. In re D.A.S., 973 S.W.2d at 297. Although given an opportunity, B.H. did not

file a response. Neither did the Department file a response.




                                               5
                                                Analysis


        We have independently examined the entire record to determine whether there are

any non-frivolous issues that might support the appeal. See Penson v. Ohio, 488 U.S.

75, 82-83, 109 S. Ct. 346, 102 L. Ed. 2d 300 (1988); Stafford v. State, 813 S.W.2d 503,

511 (Tex. Crim. App. 1991). Based on this record, we conclude the trial court made a

reasonable decision in its appointment of A.J.H.’s paternal grandparents as joint

managing conservator. Specifically, we conclude the trial court’s determination their

appointment is in A.J.H.’s best interest was supported by a preponderance of evidence.

Having reviewed the entire record, we agree with counsel there are no plausible grounds

for appeal.7


                                              Conclusion


        We affirm the trial court’s order appointing B.H. as A.J.H.’s possessory conservator

and L.H./C.H., A.J.H.’s paternal grandparents, as his joint managing conservator.




                                                                 Lawrence M. Doss
                                                                    Justice




        7 We call counsel’s attention to the continuing duty of representation through the exhaustion of

proceedings, which may include filing a petition for review. Counsel has filed a motion to withdraw, on
which we will take no action. See In re P.M., 520 S.W.3d 24, 27 (Tex. 2016) (per curiam), cert. denied, 138
S. Ct. 1562, 200 L. Ed. 2d 756 (2018).

                                                    6
