Affirmed and Opinion Filed August 21, 2014




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-01059-CV

                            CRYSTAL ANN HARRIS, Appellant
                                        V.
                             VIRGINIA VANEGAS, Appellee

                     On Appeal from the 254th Judicial District Court
                                  Dallas County, Texas
                          Trial Court Cause No. DF-11-13821

                            MEMORANDUM OPINION
                       Before Justices Moseley, O’Neill, and FitzGerald
                                Opinion by Justice FitzGerald
       The trial court appointed Virgina Vanegas (“Grandmother”) sole managing conservator

of D.L. and C.V. (together, “Children”) and appointed Crystal Harris (“Mother”) possessory

conservator. In a single issue, Mother asserts the trial court erred in awarding managing

conservatorship to Grandmother. We affirm the trial court’s judgment.

                                      BACKGROUND
       The Children, born in 2000 and 2001, have resided with Grandmother since birth.

Grandmother’s son, the father of the Children, has been incarcerated since 2008. Although father

and Mother lived with Grandmother many years ago, both moved out and voluntarily

surrendered possession of the Children to Grandmother.

       In 2008, pursuant to a Child Protective Services (“CPS”) investigation, Mother signed an

affidavit of relinquishment placing the Children in the care of Grandmother. Mother revoked the
affidavit in 2011. The revocation prompted Grandmother’s filing of the petition seeking a court

order awarding her managing conservatorship of the Children.

              The trial court concluded Grandmother had standing to bring suit under the family code.

The trial court signed temporary orders appointing Grandmother temporary sole managing

conservator. Mother was also ordered to pay monthly child support to Grandmother in the

amount of $222 per month. Mother failed to make any of the payments as ordered. The case was

tried to the bench, and the court awarded managing conservatorship to Grandmother and

possessory conservatorship to Mother. The court also awarded judgment for past due child

support to Grandmother in the amount of $3,330, and ordered that Mother make monthly child

support payments in the amount of $210.

                                                                DISCUSSION

Standing
             In the first part of her sole issue, Mother argues the trial court erred in determining

Grandmother had standing to bring this action. We disagree.

             Standing is implicit in the concept of subject-matter jurisdiction, and it is a threshold

issue in a child custody proceeding.1 Whether a party has standing to pursue a cause of action is a

question of law that we review de novo.2 When, as here, the trial court does not make separate

findings of fact and conclusions of law, we imply the findings necessary to support the

judgment.3 When standing to bring a particular type of lawsuit has been conferred by statute, we

use that statutory framework to analyze whether the petition has been filed by a proper party.4


     1
      See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993); In re SSJ–J, 153 S.W.3d 132, 134 (Tex. App.—San
Antonio 2004, no pet.).
     2
          In re SSJ–J, 153 S.W.3d at 134.

     3
          In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet. dism’d) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990)).
     4
        See Atty. Gen. of Tex. v. Crawford, 322 S.W.3d 858, 862 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); In re N.L.D., 344 S.W.3d
33, 37 (Tex. App.—Texarkana 2011, no pet.).


                                                                   –2–
The family code identifies those who have standing to file an original suit, and includes persons

who have had possession for at least six months and a person designated as managing

conservator in an affidavit of relinquishment.5 Specifically, the statute provides:

                     (a) An original suit may be filed at any time by . . .

                     (9) a person, other than a foster parent, who has had actual care, control,
                     and possession of the child for at least six months ending not more than 90
                     days preceding the date of the filing of the petition . . .

                     (10) a person designated as the managing conservator in a revoked or
                     unrevoked affidavit of relinquishment . . . .6

             The record reflects that Grandmother has had actual care, control and possession of the

Children for the entirety of their lives. Although the Children occasionally visit Mother, the

Children reside with Grandmother, and Grandmother is and always has been responsible for

providing their care.

             Mother’s affidavit of relinquishment, dated April 1, 2008, was admitted into evidence at

trial. The affidavit reflects that Grandmother has the right to possession of the Children, to direct

their moral and religious training, and to designate their residence. Grandmother is also charged

with the duty of care, control, discipline, and protection, has the right to consent to dental and

medical care, and the right to access state and federal social services for the Children. The

affidavit further grants Grandmother the right to make educational decisions and to enroll the

Children in day care. These are duties of a managing conservator.7 Therefore, the record reflects

that Grandmother has had actual care, control, and possession of the Children for the statutorily

prescribed period of time and Grandmother was named the managing conservator in the affidavit




   5
       TEX. FAM. CODE ANN. §102.003(a) (9),(10) (West 2014).
   6
       Id.
   7
       TEX. FAM. CODE ANN. §102.003(a) (9),(10) (West 2014).



                                                               –3–
of relinquishment. Consequently, the trial court did not err in concluding that Grandmother has

standing to bring suit.8 The first part of Mother’s issue is overruled.

             In the remaining portion of her sole issue, Mother argues the trial court erred by

appointing Grandmother managing conservator. Mother contends there was no evidence or

insufficient evidence to rebut the presumption in favor of parental conservatorship set forth in the

family code.9

             We review a trial court’s determination of conservatorship for an abuse of discretion.10

Under the abuse of discretion standard, a challenge to the legal and factual sufficiency of the

evidence is not an independent ground of error, but is merely a factor in assessing whether the

trial court abused its discretion.11 In determining a legal insufficiency issue, we are to consider

only the evidence and inferences that tend to support the finding and disregard all evidence and

inferences to the contrary.12 Anything more than a scintilla of evidence is legally sufficient to

support the finding.13 More than a scintilla of evidence exists if the evidence furnishes some

reasonable basis for differing conclusions by reasonable minds about the existence of a vital

fact.14 To determine whether the evidence is factually insufficient, we must consider, weigh, and

examine all of the evidence that supports or contradicts the fact-finder’s determination.15 We may

set aside a judgment only if the evidence supporting it is so contrary to the overwhelming weight




   8
       Id.
   9
       See TEX. FAM. CODE ANN. § 153.131 (Tex. 2014).

   10
        Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)
   11
        See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
   12
        Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001).
   13
        Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
   14
        Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 262 (Tex. 2002).
   15
        See Mauldin v. Clements, 428 S.W.3d 247, 268 (Tex. App.—Houston [1st Dist.] 2014, no pet.).



                                                                      –4–
of the evidence as to be clearly wrong or manifestly unjust.16 When conducting a factual

sufficiency review, we do not substitute our judgment for that of the fact-finder.17 The fact-finder

is the sole judge of the credibility of the witnesses and the weight to be given their testimony.18

Thus, in addressing the overlapping abuse of discretion/sufficiency standards of review, we first

determine whether the trial court had sufficient information to exercise its discretion, then we

determine whether the court abused its discretion.19

              If a non-parent and a parent are both seeking managing conservatorship of a child, the

family code prohibits a court from appointing the non-parent “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.”20

This creates a presumption in favor of parental custody.21

              This parental presumption, however, can be rebutted upon a showing that the parent

voluntarily surrendered possession of the child. To this end, the family code provides:

                     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 non-parent . . . for a period of a year or more, a
                     portion of which was within 90 days preceding the date of the intervention
                     in or filing of the suit; and




   16
        Id.
   17
        Id.
   18
        Id.
   19
        See Chavez v. Chavez, 148 S.W.3d 449, 456 (Tex. App.—El Paso 2004, no pet.).

   20
        TEX. FAM. CODE ANN. § 153.131.
   21
        See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).




                                                                  –5–
                        (2) the appointment of the nonparent or agency as managing conservator is
                        in the best interest of the child.22

             The parental presumption was rebutted here. Exhibit 2, the affidavit of relinquishment,

shows that Mother voluntarily relinquished control of the Children to Grandmother in 2008. The

record reflects that Children have resided with Grandmother since that time. The trial court’s

finding that awarding Grandmother managing conservatorship is in the best interest of the

Children is implied.23 The best interest of the child is always the primary consideration in

determining issues of conservatorship, access, and possession.24 Because the trial court is in a

position to analyze the facts with regard to issues of conservatorship, control, possession, child

support, and visitation, the trial court is given “wide latitude in determining the best interests of a

minor child.”25

             In determining the best interest of a child, courts consider the following non-exhaustive

factors: (1) the desires of the child; (2) the emotional and physical needs of the child now and in

the future; (3) the emotional and physical danger to the child now and in the future; (4) the

parental abilities of the individual seeking custody; (5) the programs available to assist the

individual to promote the best interest of the child; (6) the plans for the child by the individual or

by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts

or omissions of the parent, or potential conservator, that may indicate that the existing

relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent or

potential conservator.26


22
     TEX. FAM. CODE ANN. § 153.373 (West 2014).

23
     See S.M.D., 329 S.W.3d at 13 (court implies findings in support of judgment).
24
     TEX. FAM. CODE ANN. §153.002 (West 2014).
25
     Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.—Dallas 2006, no pet.).

26
     Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).



                                                                       –6–
        Grandmother stated that she has raised and cared for the Children since birth, and that

Mother has been in and out of jail. Grandmother is concerned that Mother has no job and offers

no stability or supervision of the Children. According to Grandmother, the Children complain

that Mother yells and curses at them, and have expressed a desire to continue to reside with

Grandmother. Mother is residing with a boyfriend in San Antonio, and Grandmother and the

Children reside in Dallas. The man with whom Mother resides has a prior conviction for family

violence. Grandmother expressed concern to Mother that she was allowing the boyfriend to

discipline the Children when they visited.

       Grandmother testified that Mother resided at her home on and off throughout the years.

Mother moved out in 2001, four months after the first of the Children at issue here was born.

Mother returned again for a short period and then left again in 2005. Mother has been in and out

of several relationships. At one point when Mother left Grandmother’s home, Mother got

married. She is no longer married to that man, but instead resides with a boyfriend in San

Antonio. Mother has had seven children with four fathers. Grandmother testified without

objection that Mother has had her rights terminated as to other children. She did not specify

which ones or how many.

       Mother signed the affidavit of relinquishment through (“CPS”) after she had her fourth

child. Although the details were not developed at trial, the affidavit of relinquishment resulted

from a CPS investigation involving the Children in which CPS wanted to terminate Mother’s

parental rights. Mother was not following CPS directives and would not communicate with them.

CPS could not get Mother to follow through on classes or do anything. Although the affidavit

relinquished possession of three children, in 2010, Grandmother contacted CPS to let them know




                                              –7–
that Mother wanted one child back. At that time, Mother did not say that she wanted the Children

at issue here.

        Grandmother filed this suit in 2011 when Mother revoked the affidavit as to the two

Children that are the subject of this case. Grandmother was concerned about the Children going

to live with Mother because of “the history of drug abuse,” and her concerns about Mother’s

boyfriend and the discipline of the Children. Grandmother testified that the Children are in

school in Dallas and are performing well. Because Mother lives in San Antonio, Grandmother is

concerned that she will never get to see the Children if they are sent to live with Mother in San

Antonio. Grandmother also testified about an incident where Mother was confused about when

the court orders indicated Children were supposed to be returned to Grandmother after a visit.

Mother sent Grandmother a text saying the Children would not be returned for a few days until

after they were due. Grandmother filed a police report, and ultimately incurred a car rental

expense and a day off from work to travel to San Antonio to retrieve the Children herself.

        Grandmother testified that in 2011, Mother tested positive for drugs, and she has tested

positive for drugs before. The record includes a court-ordered drug test, and a report showing a

positive result.

        Grandmother has the Children involved in sports and scouting. Last year, she enrolled

them in dance classes. She keeps their schedules very busy, and she communicates with them

about the dangers of becoming involved with drugs. One summer, when the Children visited

Mother, Grandmother sent a packet of homework that was to be completed. When the Children

returned, the packet was unopened. Since Mother became a part of the Children’s lives again in

2009, Grandmother has observed behavior changes in the Children. Grandmother expressed

concern that sending the Children to live with Mother for the first time in their lives would be

emotionally disruptive to the Children.

                                               –8–
       Kim Lumpkin, a friend of Grandmother’s, testified that she has known Grandmother for

about seven years. One of the Children plays with her son, and the child is happy, well-

mannered, cared for, and well-adjusted. Lumpkin does not believe it would be in the best interest

of the Children to go live with Mother because the home in Dallas with Grandmother is the only

home they have ever known, and Mother has been in and out of their lives. Lumpkin has never

seen Mother at any of the Children’s school functions.

       Grandmother’s daughter’s best friend, Theresa Barrera, also testified. Barrera has spent

considerable time with the family. Grandmother is a good parent, and Barrera does not believe it

would be in the Children’s best interest to live with Mother. The Children have friends and a

community that has embraced them in their current location with Grandmother. The Children are

happy, well-fed, properly clothed, well-adjusted, and receiving appropriate care from

Grandmother.

       The Children’s aunt, a police officer with the Dallas Police Department, also testified that

Grandmother is a good mother to the Children. Grandmother makes sure the Children have

appropriate discipline. The Children are doing well in school and are involved in numerous

activities. They are happy, and their health is properly cared for. One child has asthma, which is

under control. But Mother’s boyfriend is a smoker, and the aunt does not believe it would be in

the Children’s best interest to live with a smoker. The aunt believes that Mother is involved with

drugs. She described a text message she once received from Mother in which Mother was asking

for drugs. When the aunt returned the text and inquired if Mother realized she was asking for

drugs, Mother replied that she let someone use her phone and had not intended to text the aunt.

The aunt is also raising one of Mother’s biological children. Mother placed the child with aunt

when the child was three months old. The aunt testified that it would not be in the Children’s

best interest to go live with Mother. The Children have been in Dallas their entire life, and are

                                               –9–
happy and doing well in school. Moving them to San Antonio would be a huge disruption. The

aunt also worries that Mother is still involved with narcotics, and she is concerned about the

Children being in “that type of environment.”

       Mother testified that she has had trouble with drugs in her past and is still undergoing

drug counseling twice a week. She acknowledged that she has made a lot of mistakes and bad

choices. Mother currently has three children living in her home, and has taken two parenting

classes. Mother said that she loves her children. She is in the process of getting a divorce. Mother

acknowledged that she has not paid any of the court-ordered child support because “they don’t

need it.” Mother stated that she wants what is best for her children, but she offered no

explanation as to why she believes their interest is best served by moving from Dallas to live

with her in San Antonio. Mother did not state that she is no longer using drugs, nor was there any

testimony or evidence that she is employed. There was also no testimony concerning any plans

for feeding, clothing, or educating the Children, or attending to their physical and emotional

well-being.

       The record reflects that there is sufficient evidence to support the trial court’s conclusion

that the best interest of the Children would be served by remaining with Grandmother. Therefore,

we conclude the trial court did not abuse its discretion by appointing Grandmother managing

conservator. Mother’s issue is overruled. The trial court’s judgment is affirmed.




131059F.P05


                                                    /Kerry P. FitzGerald/
                                                    KERRY P. FITZGERALD
                                                    JUSTICE




                                                –10–
                                         S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

CRYSTAL ANN HARRIS, Appellant                        On Appeal from the 254th Judicial District
                                                     Court, Dallas County, Texas
No. 05-13-01059-CV         V.                        Trial Court Cause No. DF-11-13821.
                                                     Opinion delivered by Justice FitzGerald.
VIRGINIA VANEGAS, Appellee                           Justices Moseley and O'Neill participating.

     In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.

       It is ORDERED that appellee VIRGINIA VANEGAS recover her costs of this appeal
from appellant CRYSTAL ANN HARRIS.


Judgment entered August 21, 2014




                                              –11–
