REVERSE and REMAND; and Opinion Filed August 29, 2019.




                                             In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      No. 05-19-00413-CV

                   IN THE INTEREST OF M.O. AND P.O., CHILDREN

                      On Appeal from the 256th Judicial District Court
                                   Dallas County, Texas
                          Trial Court Cause No. DF-13-19769-Z

                             MEMORANDUM OPINION
                         Before Justices Schenck, Osborne, and Reichek
                                  Opinion by Justice Osborne
       After a bench trial, the trial court signed an order appointing Mother and Father as

possessory conservators of their children M.O. and P.O. The trial court appointed a nonparent as

the children’s managing conservator. Mother appeals, contending the trial court abused its

discretion in finding that appointing her as managing conservator “would significantly impair the

children’s physical health and emotional development.” Because we conclude there was

insufficient evidence to support the trial court’s finding, we reverse the trial court’s order and

remand the cause for further proceedings.

                                         BACKGROUND

       In late 2017, the Texas Department of Family and Protective Services (the “Department”)

removed M.O. and P.O., then aged 3 and 2, from Mother’s home after investigating a report of

neglectful supervision. As one of the “reason[s] for Child Protective Services involvement,” the

Family Service Plan created for the family in November 2017 stated that “[Mother’s] unmanaged
mental health issues poses [sic] a threat to the ongoing safety of the children.” Under “hopes and

dreams for the children,” the plan stated that Mother “hopes to receive appropriate mental health

and substance abuse treatment so she can be the best parent possible for her children.” “Service

plan goals” included that Mother “will have a psychiatric evaluation and ensure she is medically

compliant if she has already completed one,” and “will actively participate in therapy to understand

and address her own mental health needs.” Mother was ordered to “participate in a psychological

evaluation to assess her ability to take responsibility for her children, provide a safe and nurturing

environment, and alter the pattern of behavior resulting in CPS involvement,” to “attend Individual

Counseling,” to “complete a Psychiatric Evaluation . . . in order to assess her mental health needs,”

and to “follow all recommendations made” by the service provider of the psychiatric evaluation.

The trial court took judicial notice of the family service plan at trial.

        The children were placed in the home of J.J., Father’s cousin. Another of Mother’s children

by a different father, A.M., aged six, was also placed in J.J.’s home. At trial, the Department

requested that the court appoint J.J. as sole managing conservator, and Mother and Father as

possessory conservators. The children had been living with J.J. since their removal from Mother’s

home. Also living in J.J.’s home and under her care are her own four children, who range in age

from five to thirteen.

        While in J.J.’s care, the children visited with Mother at the home of J.J.’s mother, R.J.

R.J.’s home was chosen for the visits because R.J. and Mother live in the same apartment complex.

But J.J. testified that at the time of trial in February 2019, Mother had not visited or seen M.O.

since the previous Mother’s Day in May 2018, and had seen P.O. only once since then. Mother

testified that she disliked visiting the children at R.J.’s home because she felt that R.J. watched her

too closely and “yelled at” her once for “play[ing] with my kids rough.” Mother explained that “I

don’t play with my kids rough. I play with them, and that’s what it was.”

                                                  –2–
       Both Mother and Autumn Carter, a Department caseworker, testified that Mother had

completed all of the services the court had ordered, including random drug screens, a drug

assessment, a psychological evaluation, individual counseling, domestic violence counseling, and

parenting classes. But Carter also testified that Mother was not “medication compliant” in

accordance with the service providers’ recommendations.

       There was no evidence presented about the children. There was no evidence of M.O.’s or

P.O.’s physical health or emotional development. There was no evidence of M.O.’s or P.O.’s

relationship with Mother. There was no evidence of M.O.’s or P.O.’s relationship with J.J. or with

J.J.’s children. There was no evidence of M.O.’s or P.O.’s physical or emotional issues or needs.

There was no evidence of how Mother’s medication compliance, or lack of it, impaired M.O.’s or

P.O.’s physical health or emotional development.

       After hearing testimony from J.J., Carter, Mother, Father, and the Court Appointed Special

Advocate for the children (the “CASA advocate”), the trial court granted the relief requested by

the Department and signed an order appointing J.J. as sole managing conservator and Mother and

Father as parent possessory conservators of M.O. and P.O. Mother now appeals.

                                        APPLICABLE LAW

       “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.” TEX. FAM. CODE § 153.131(b).

“[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.” FAM. CODE § 153.131(a). “The

strong presumption that the best interest of a child is served by appointing a natural parent as

managing conservator is deeply imbedded in Texas law.” In Interest of J.T.S.,

                                                –3–
No. 05-17-00204-CV, 2018 WL 1465535, at *3 (Tex. App.—Dallas Mar. 26, 2018, no pet.) (mem.

op.) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990), and In re B.B.M., 291

S.W.3d 463, 468 (Tex. App.—Dallas 2009, pet. denied)).

       To support a finding of significant impairment, the evidence must do more than merely

raise a suspicion or speculation of possible harm. In re B.B.M., 291 S.W.3d at 467. Instead, the

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

the parent, demonstrated by specific acts or omissions, will probably harm the child. Id.; R.H. v.

D.A., No. 03-16-00442-CV, 2017 WL 875317, at *5 (Tex. App.—Austin Mar. 2, 2017, pet.

dism’d). This is a heavy burden that is not satisfied by merely showing the nonparent would be a

better choice as custodian of the child. In re B.B.M., 291 S.W.3d at 467. 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. at 469. A factfinder

may infer the present fitness of the parent to be managing conservator from the parent’s recent,

deliberate past misconduct. R.H., 2017 WL 875317, at *5. But evidence of past misconduct,

standing alone, may not be sufficient to show present unfitness. Id. “When a nonparent and a parent

are both seeking managing conservatorship, the ‘close calls’ go to the parent.” In re B.B.M., 291

S.W.3d at 469; see also Interest of F.E.N., No. 18-0439, 2019 WL 2667029, at *2 (Tex. Jun. 28,

2019) (per curiam) (proof of “significant impairment” “should include the acts or omissions of the

parent demonstrating that result”) (citing Lewelling, 796 S.W.2d at 167).

                                     STANDARD OF REVIEW

       Mother alleges that the trial court abused its discretion in finding that appointing her as

managing conservator would significantly impair M.O.’s and P.O.’s physical health and emotional

development. “[A] finding that appointment of a parent as managing conservator would

significantly impair the child’s physical health or emotional development is governed by a

                                               –4–
preponderance-of-the-evidence standard.” In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). The

heightened standards of proof and review for termination decisions do not apply. Id. Instead,

conservatorship determinations “are subject to review only for abuse of discretion, and may be

reversed only if the decision is arbitrary and unreasonable.” Id.; see also In Interest of L.W., No.

02-16-00091-CV, 2016 WL 3960600, at *1 (Tex. App.—Fort Worth Jul. 21, 2016, no pet.) (mem.

op.) (“A trial court abuses its discretion if the court acts without reference to any guiding rules or

principles, that is, if the act is arbitrary or unreasonable.”).

        Legal and factual sufficiency are not independent grounds of error in conservatorship cases

but are relevant factors in determining whether an abuse of discretion occurred. Id. at *2. To

determine whether the trial court abused its discretion because the evidence was insufficient to

support its decision, we consider whether (1) the trial court had sufficient evidence upon which to

exercise its discretion and (2) erred in its exercise of that discretion. Id. We conduct the applicable

sufficiency review with regard to the first question. Id. We then determine whether, based on the

elicited evidence, the trial court made a reasonable decision. Id. The trial court is the sole judge of

the credibility of the witnesses and the weight to be given their testimony. In re M.A.M., 346

S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet. denied).

                                              DISCUSSION

        A natural parent has a fundamental liberty interest in the care, custody, and management

of her child. In re B.B.M., 291 S.W.3d at 468 (citing Santosky v. Kramer, 455 U.S. 745, 753

(1982)). This right cannot be infringed absent evidence that such care, custody, and management

by the natural parent would result in physical or emotional harm to the child. Id. (citing Lewelling,

796 S.W.2d at 167). Although the Department did not seek to terminate Mother’s parental rights,

and consequently was not required to meet the “clear and convincing evidence” standard of proof

applicable to terminations, it was required to offer evidence to “support the logical inference that

                                                   –5–
some specific, identifiable behavior or conduct of [Mother] will probably harm” M.O. and P.O.

Id. at 467.

        We conclude that the evidence presented at trial, detailed below, was insufficient to

overcome “[t]he strong presumption that the best interest of a child is served by appointing a

natural parent as managing conservator.” See In re B.B.M., 291 S.W.3d at 467. There was no

evidence that Mother’s “specific, identifiable behavior or conduct,” “demonstrated by specific acts

or omissions,” will probably harm M.O. or P.O. See id. At most, the evidence “merely raise[d] a

suspicion or speculation of possible harm.” See id. Consequently, the trial court lacked sufficient

evidence on which to exercise its discretion. In Interest of L.W., 2016 WL 3960600, at *2.

        At trial, the Department cited its “concerns about Mother’s mental health and whether or

not she’s still getting the necessary help that she still needs” and Mother’s failure to visit M.O. and

P.O. as grounds for seeking appointment of J.J. as sole managing conservator. The Department,

joined by the guardian ad litem, also requested continuation of supervised visitation. Mother

requested appointment as managing conservator and return of M.O. and P.O. to her home.

        J.J. testified that she had concerns about returning M.O. and P.O. to Mother’s custody.

Citing Mother’s mental health, J.J. expressed a concern that the children’s return to Mother might

be short-lived because Mother “wasn’t willing” to get the treatment she needed. J.J. also testified

that Mother “cried and said she just couldn’t deal with it anymore, she can’t do it anymore” in

J.J.’s presence before the children were placed in J.J.’s home.

        J.J. also opined that Mother’s desire to have the children returned is “all about the benefits”

that Mother would receive. In response to questioning by the guardian ad litem, J.J. testified she

was contacted by HUD and the IRS because Mother reported to both agencies that the children

were living with her when they were actually in J.J.’s custody.




                                                 –6–
       J.J. also testified that Mother’s visits with the children had ceased the previous May, so

Mother had not seen M.O. for nine months at the time of trial, and had seen P.O. only once in that

time period. When the children were placed with J.J. in January 2018, Mother was to have weekly

visits. Despite J.J.’s weekly reminders by text message, Mother usually came only twice a month,

and then ceased visiting altogether in May. Mother told J.J. why she stopped coming for visits:

       She told me that she didn’t want to be bothered with it anymore. I also—she said
       that she was afraid of my mom [R.J., at whose home the visits were held], the reason
       why she didn’t want to do my visits at my mom’s house anymore, ‘cause that’s
       where the visitations were supposed to be at. So—but that was the reason why.

J.J. testified that Mother asked her for another place to visit. J.J. suggested they go “right down the

street to the park,” but Mother said “Oh, no, I don’t want to go down there either.” J.J. testified

that she “left it at that. I mean, I can’t force [Mother] to come see the kids. I can only offer.”

       On cross-examination, J.J. testified that shortly before trial Mother took Valentine cards

and cupcakes to R.J.’s home for M.O. to take to school. J.J. also admitted that it was a twenty-

minute drive from her home to R.J.’s, and she had not had a car between August of 2018 and the

date of trial in February 2019. “[A] couple of times,” R.J. picked up the children and drove them

back for visits. And J.J. admitted she had been unable to bring M.O. to R.J.’s for a visit at Mother’s

request in February 2019.

       Autumn Carter, the children’s caseworker, testified that in September 2017, the

Department received a referral of neglectful supervision of M.O. and P.O. “due to Mother’s

untreated mental illness and possible domestic violence and drug usage in the home.” Carter

testified that although Mother had completed the services required by CPS, Mother was not

following the service providers’ recommendations. Specifically, “per the psychological

evaluation, it stated that [Mother] needed to be medication compliant.” But when Carter visited

Mother’s home at the end of January, Mother had taken only four pills from each of her two daily

prescriptions that had been filled on August 24, 2018. Carter testified,
                                                 –7–
       Q.      How is that a concern to CPS, that she’s not taking her medications? And
               what’s the concern about that affecting her parenting ability?

       A.      Well, the initial referral was a concern—it was neglectful supervision due
               to Mother’s untreated mental health. And her not being medication
               compliant shows that she’s not treating her mental health.

       Q.      And when you tried to talk to the mother about her either going to follow
               up with her psychiatrist or taking medication, what would she tell you?

       A.      She said she was going to Green Oaks weekly—I don’t remember which
               day of the week. And I told her I needed her to sign a release of information
               so I could get documentation that she said she would do so. She told me
               multiple times she would be able to do that, but I still was never able to
               obtain anything.

       Carter testified that Mother did bring a letter to trial from Green Oaks Hospital. The letter

was introduced into evidence and reflected that Mother’s “diagnoses include Generalized Anxiety

Disorder and Depression, not otherwise specified.” But contrary to Mother’s report to Carter that

she was “going to Green Oaks weekly,” the letter, dated February 19, 2019, reflects that Mother

was “last seen” there in August, 2018. Carter testified that Mother “completed individual

counseling that focused on some of the traumas she experienced in her childhood,” and based on

her review of Mother’s psychological evaluation, she had concerns “whether or not [Mother] is

mentally stable enough to protect her children.” She testified that she had not seen a change in

Mother’s mental state during the pendency of the case.

       Carter also testified that she and Mother discussed Mother’s reluctance to visit the children

at R.J.’s home. Mother told Carter “she feels a little threatened by the caregiver. She feels

uncomfortable, and she feels kind of like the caregiver and her family judges her.” Carter

disagreed, telling Mother “I don’t feel like they judge [you] and they do support [you].” Carter

also discussed the matter with J.J., who “actually doesn’t understand why [Mother] would feel

threatened.” On cross-examination, Carter admitted she had not observed any of the visits at R.J.’s

home. But she also testified that in her experience it is common for parents to feel uncomfortable


                                               –8–
when they are supervised with their children. Carter also testified that Mother never complained

that J.J. prevented her from seeing the children.

       Mother testified about “what it was like” to visit the children at R.J.’s home:

       A.      From my knowledge, when I was there, I would have to sit like a stool
               pigeon, like I wasn’t there, like I was going to run off with my kids. No, I
               would not run off with my kids because I understand what I would have to
               do—I would go to jail.

       Q.      Why did you feel you had to sit there like a stool pigeon?

       A.      Because I felt like I was getting watched hardly [sic]. But I’m not going to
               harm my kids.

       Q.      What caused you to think you were being watched hard?

       A.      The way they was looking at me. My [A.M.] and [M.O.], when I’m playing
               with them, I will tell them, Okay, I can’t do that or I can’t do that or I can’t
               do that. . . .

       Q.      Okay. What happened that caused you to feel like you didn’t want to go
               visit over there any more?

       A.      The way—I got yelled at one time in there and everything, and she yelled—
               [J.J.]’s mother yelled at me, and I didn’t like that. That’s why I stopped
               going for a while.

       Q.      Okay. And why—what did she yell at you about?

       A.      It was one of the kids—I don’t know which one it was. I was playing with
               him—I think I was playing with them rough, and I didn’t understand. I don’t
               play with my kids rough. I play with them, and that’s what it was.

       Q.      Okay. And she yelled at you about that?

       A.      Yes.

       Q.      What do you mean by yelled at?

       A.      Real loud. . . . Like, Don’t do that. And I—I—I can admit I am afraid of
               them.

       Q.      All right. And what makes you afraid of them?

       A.      Because I don’t feel—I feel threatened because I feel that sometimes when
               I’m around there or when I walk around there—I do reach out—I have
               reached out to [J.J.] about seeing the kids. . . .

                                                 –9–
On cross-examination, Mother admitted that although she had attended numerous hearings

concerning the court’s temporary orders in the case, she never asked either her attorney or the

judge to have the visitations changed.

        On cross-examination, Carter also testified that she had been to Mother’s home. The home

is a three-bedroom apartment, so “[t]here are rooms for her kids,” and Mother told Carter “she was

in the process of getting beds for the kids.” The apartment was clean and there was food available.

Carter did not see the lease to determine how long Mother would be able to live in the apartment,

but all of the utilities were on. When asked whether there was anything unsafe about the apartment,

Carter mentioned only the “highly strong smell of bleach,” probably because Mother knew Carter

was coming and cleaned for her.

        Mother testified that “I want my kids back home.” When asked if she understood “why the

children were removed initially,” Mother responded:

        A.      Yes.

        Q.      And why was that?

        A.      Because I know of—when the lady came, she told me that my son—‘cause
                he was with me—and that she needed to see me—see—talk to me. She went
                to my neighbor and knocked on her door, because I was at the school the
                day before, with the card on the door saying—she came at me and said that
                CPS had came to the door and someone called and I called her—she called
                came a day early to see me. She came way early, and I was on my way to
                the office to put in a work order, and she said—she asked me, I—CPS, and
                I told her yes.

        Q.      And what was the reason she said she was there?

        A.      She said she was there to see me and to see [P.O.] because she said she don’t
                [sic] already seen the girls at school.

        Q.      Okay. And eventually, CPS removed the children, correct?

        A.      Correct.

        The appellate record contains little evidence regarding the nature of Mother’s mental

illness, the prescribed treatment for it, or, most importantly, its effect on her ability to care for her
                                                 –10–
children. The initial referral to the Department included a report that Mother “‘hurts herself a lot’

and is going to hospitals,” according to the affidavit of Chasiti Hill, a Department investigator.

Hill’s affidavit attached to the Department’s petition also reflects that when Hill visited Mother on

September 28, 2017, Mother stated “that she has Bipolar disorder and schizophrenia. She states

that she hasn’t been to [G]reen [O]aks in years for treatment and she is not currently taking her

medication.” The letter from Green Oaks Hospital admitted into evidence at trial shows that

Mother’s “diagnoses include Generalized Anxiety Disorder and Depression, not otherwise

specified; she does have previous diagnosis of Post Traumatic Stress Disorder, though she is not

currently reporting symptoms.” The letter mentions neither bipolar disorder nor schizophrenia.

The ad litem questioned Mother about a report that Mother had a brain tumor, but Mother denied

having a brain tumor.

       No physician or counselor testified at trial to clarify these matters. The record reflects that

a psychological evaluation was ordered for Mother, but no report of the evaluation was introduced

into evidence or is otherwise included in the record. Although Carter testified she reviewed the

report, the trial court sustained a hearsay objection to Carter’s testimony about the report’s

contents. As we have discussed, Carter testified that Mother did not appear to be taking her

prescribed medications as directed. But Carter did not testify about the symptoms that the

medications were prescribed to address. Carter testified that Mother promised “multiple times” to

provide her records from treatment at Green Oaks, but never did so.

       “[A] parent’s mental illness diagnosis alone does not necessarily demonstrate that a child’s

physical health or emotional development will be significantly impaired by parental custody.” In

re L.D.F., 445 S.W.3d 823, 831 (Tex. App.—El Paso 2014, no pet.); see also In re C.M.B., 204

S.W.3d 886, 895 (Tex. App.—Dallas 2006, pet. denied) (“Mental illness or incompetence of a

parent alone are not grounds for terminating a parent-child relationship.”). In L.D.F., however,

                                               –11–
“[a]dditional evidentiary factors ma[d]e Appellant’s diagnosis and psychiatric history relevant,”

including connections between the appellant’s psychiatric hospital stays, his use of illegal drugs,

and his assaults on family members. See L.D.F., 445 S.W.3d at 831. The court also noted that

because the trial court was in the best position to observe the witnesses, it would “defer to its

assessments, particularly in mental health cases,” as long as “those findings are not an abuse of

discretion.” Id. Consequently, the trial court could consider the appellant’s psychiatric history in

making its conservatorship ruling. See id.; see also C.M.B., 204 S.W.3d at 895 (if parent’s mental

state causes her to engage in conduct that endangers child’s emotional well-being, that conduct

may be considered in termination proceeding). In Sawyer v. Texas Department of Protective and

Regulatory Services, “more than one professional” testified that a mother needed “to be on

medication so that she can comply with the responsibilities of being a parent.”

No. 03-02-00286-CV, 2003 WL 549216, at *8 (Tex. App.—Austin Feb. 27, 2003, no pet.). Noting

the mother’s failure to follow “repeated advice to return to some form of medication,” the court

concluded,

       Sawyer [mother] has exhibited a pattern of ignoring the advice of her doctors and
       therapists. She has not accepted the fact that she is mentally ill and has refused
       treatment. That refusal endangers her children.

Id. Combined with the mother’s lack of parenting skill, her drug use, and her contact with abusive

men, evidence of her untreated mental illness could support a finding that she “could not provide

her children with a safe environment.” See id.

       In contrast to the evidence presented in L.D.F. and Sawyer, the Department did not offer

evidence to support a finding by the trial court that Mother’s untreated mental illness will result in

“some specific, identifiable behavior or conduct” that “will probably harm” M.O. and P.O. See In

re B.B.M., 291 S.W.3d at 467. Consequently, the Department did not offer evidence sufficient to

overcome the “strong presumption” that M.O.’s and P.O.’s best interest would be served by


                                                 –12–
appointing Mother, their natural parent, as managing conservator. See id. Carter testified that the

Department did not recommend designating Mother as managing conservator because “the issue

here was untreated mental health.” She testified that Mother had been given additional time—from

September 2017 to the time of trial in February 2019—to be medication compliant, but was not.

But as we have noted, the Department’s evidence did not (1) identify Mother’s illness with any

certainty, (2) show the effects of the untreated illness on Mother’s ability to care for M.O. and

P.O., or (3) show probable harm to M.O. or P.O. See id. Without evidence that Mother’s untreated

mental health “would significantly impair” the children’s “physical health or emotional

development,” the Department failed to meet its burden to establish that it is not in M.O.’s or

P.O.’s best interest to appoint Mother as managing conservator. See FAM. CODE § 153.131(a).

       Family code section 153.131(a) “creates a parental preference by placing the burden on the

non-parent seeking conservatorship to establish that the parent’s appointment [as managing

conservator] would result in significant impairment to the child.” Interest of F.E.N., 2019 WL

2667029, at *2. Because the Department did not meet this burden, we sustain Mother’s sole issue.

                                          CONCLUSION

       We reverse the portion of the trial court’s order appointing Mother as M.O.’s and P.O.’s

possessory conservator and remand to the trial court for further proceedings consistent with this

opinion.




                                                  /Leslie Osborne/
                                                  LESLIE OSBORNE
                                                  JUSTICE
190413F.P05




                                              –13–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

 IN THE INTEREST OF M.O. and P.O.,                  On Appeal from the 256th Judicial District
 CHILDREN,                                          Court, Dallas County, Texas
                                                    Trial Court Cause No. DF-13-19769-Z.
 No. 05-19-00413-CV                                 Opinion delivered by Justice Osborne;
                                                    Justices Schenck and Reichek,
                                                    participating.

       In accordance with this Court’s opinion of this date, the judgment of the trial court is
REVERSED and this cause is REMANDED to the trial court for further proceedings consistent
with the opinion.


Judgment entered this 29th day of August, 2019.




                                             –14–
