                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-10-00260-CV


IN THE INTEREST OF C.M.C.,
A CHILD



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          FROM THE 158TH DISTRICT COURT OF DENTON COUNTY

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                        MEMORANDUM OPINION1
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                                I. INTRODUCTION

      Appellant Father appeals the trial court’s order appointing Stephen Hall, a

nonparent and nonrelative, as sole managing conservator of Father’s son,

C.M.C.2 Mother, who is not a party to this appeal, was awarded possession the


      1
      See Tex. R. App. P. 47.4.
      2
        Although Father was at the hospital when C.M.C. was born, the birth
certificate did not reflect Father’s name. C.M.C.’s name was legally changed to
C.M.B. to reflect that Father was his biological father. We will therefore use
―C.M.B.‖ when referencing the child in the remainder of this opinion.
first and fifth weekend of every month, and Father was awarded possession the

third weekend of every month, along with other possession at spring break,

Thanksgiving, and Christmas break. Father raises two main issues, challenging

the appointment of Hall as sole managing conservator of C.M.B. and challenging

the possession order. We will affirm.

                     II. FACTUAL AND PROCEDURAL BACKGROUND

       C.M.B. was born two months premature on June 9, 2002 in Fort Worth.

When C.M.B. gained weight and was released from the hospital, Mother and

Father brought him home to live with them. C.M.B. later went to live with Hall

and Vickie Murphy, who was Mother’s sister. The record contains conflicting

testimony about when C.M.B. went to live with Hall and Murphy and whether

C.M.B.’s biological parents intended for Hall and Murphy to care for C.M.B.

indefinitely.

       A.       Hall’s Testimony

       Hall testified at the hearing that he had cohabitated for at least twenty

years with Murphy and that he and Murphy went to see C.M.B. when he was a

preemie in the hospital. While C.M.B. was living with Mother and Father, they

hooked up a propane gas tank to a hot water heater and caught the house on

fire. C.M.B. was in the house at the time of the fire. Hall believed that C.M.B.’s

parents were using drugs and that there was abuse based on Father’s criminal

background and the area that they were living in.




                                    2
      When C.M.B. was a little over a year old, he went to live with Hall and

Murphy because C.M.B.’s parents were homeless.           Hall later clarified that

Murphy went to pick up C.M.B. when Mother and Father went to jail because of a

family dispute.

      Around 2006, after C.M.B. had been living with Hall and Murphy for

approximately three years, Murphy went to court to formalize her custody of

C.M.B. After Murphy went to court to get custody of C.M.B., Mother started

visiting and asking for C.M.B. to stay with her. Approximately once a month,

Mother called and wanted to see C.M.B. Murphy took C.M.B. to visit Mother

whenever she asked.

      In 2009, Murphy died while C.M.B. was home with her.3 Hall took care of

C.M.B. after Murphy died and was substituted in the custody suit in place of

Murphy. Hall testified that he has always made sure that C.M.B. is fed and

clothed and medically cared for.4 Hall said that he had enlisted several different

women to care for C.M.B. after school and when Hall was out of town. At the

time of the conservatorship hearing, Hall’s daughter-in-law and her three-year-old

son were living with him, and his daughter-in-law was helping care for C.M.B.




      3
       The record does not detail the cause of Murphy’s death.
      4
       Hall testified that he lives in a house that was built in 2000, that he was
employed as a field engineer superintendent and was required to travel some,
and that his salary was $60,000 a year.


                                    3
       Hall testified that C.M.B. is happy and does well in Hall’s care. C.M.B. is a

special needs child who rides a special needs bus to a special needs school. His

class has five or six students and three teachers. He has been diagnosed with

anger management issues and ADHD and has a hard time studying.                  Hall

testified that he does not have insurance for C.M.B. because ―it’s just very

difficult and very expensive‖ since he is a special needs child, but Hall has paid

all of C.M.B.’s medical bills.

       Hall said that Mother had lived ―a lot of different places‖ and that Mother’s

home was not a very good atmosphere for C.M.B. to be in. Hall testified that he

fears for C.M.B.’s safety when he is at Mother’s house. Once while C.M.B. was

visiting Mother, he was bitten by a pit bull that was chained to the back porch.

Hall assumed that C.M.B. was fed when he was at Mother’s and that she looked

after him ―[t]o the best of [her] ability.‖

       Hall noted that C.M.B. becomes upset and angry before and after he visits

with Mother, that he curses upon his return from a visit, and that his grades drop.

Hall said that it usually takes a week for C.M.B. to get back on track after a visit

with Mother, and then he starts making hundreds and nineties again. Hall said

that C.M.B. kicks and fights and does not want to talk to Mother when she calls.

Hall has to hold him.

       Hall ran criminal background checks on Father and Mother and saw that

Father had been in prison for seven years and that Mother had DWIs and family

disputes on her record. Hall said that Mother has a problem of being in abusive

                                         4
relationships; he has seen her with a tooth knocked out, black eyes, and a hurt

wrist.

         Hall understood that Father was living with Father’s mother, agreed that

her house was ―fairly nice, decent,‖ and noted that she was a good influence on

C.M.B. Hall said that he and the grandmother have a ―fairly good relationship for

the child,‖ that they had worked out a schedule so that C.M.B. could stay with

her, and that C.M.B. went to the grandmother’s house fairly regularly. Hall felt

safe when the grandmother watched C.M.B., and he returned ―happy‖ and ―nice.‖

Hall said that C.M.B. enjoyed himself at his grandmother’s house and would plant

things and play. C.M.B.’s grandmother had him over for a visit during Christmas

vacation and brought him back on Christmas Day. She gave Hall a check for

$300, which he assumed was for child support, and a $100 bill for C.M.B. for a

Christmas present.      This was the first time Hall had received child support.

C.M.B. called Father and his grandmother the night before the 2009

conservatorship hearing.

         Hall testified that he wanted C.M.B. to visit with his family as much as

possible but that it would not be in C.M.B.’s best interest to move out of Hall’s

home.      Hall said that his work schedule does not impede C.M.B.’s ability to

flourish because he gets special needs help from professionals, psychologists,

and professional teachers; ―[h]e’s getting all kind of help that I can provide for

him.‖ Hall asked for full care, custody, and control of C.M.B. even though C.M.B.




                                     5
is not his child because Hall loves him and has cared for him almost his whole

life.

        B.    Mother’s Testimony

        Mother testified that she and Father broke up after a couple of years

because they were not getting along, and according to Mother, C.M.B. lived with

her in 2003 and 2004. Mother said that C.M.B. was receiving Medicaid through

her. Mother admitted that she and Father fought and ended up going to jail5 and

that Murphy came and picked up C.M.B. Mother, however, denied having ever

been homeless and said that she never let C.M.B. live with Hall; she went to get

him ―on occasions.‖

        Mother admitted that C.M.B. was difficult during her initial visits with him

but that other times ―he would be so happy.‖ C.M.B. acted out and cursed and

kicked, but he also acted at times like a sweet, caring, young boy.

        Three years prior to the trial, Mother married Jeff Henry and bought a two-

bedroom mobile home in Kennedale. C.M.B. had his own room and his own

bathroom.6 She said that there was food in the pantry and that the house was

clean. Mother said that there was no drug use in the house and that she had

never ―cooked dope.‖

        5
       Mother also admitted that she had two DWI convictions and had lost her
license for two years in 2002.
        6
       Mother testified that she had three children, including C.M.B. Mother’s
oldest child is an adult, and her middle child lives with her dad. So C.M.B. would
be the only child living in her home.


                                      6
      Mother said that her personal income was zero and that she was

supported by her husband. At the time of the hearing, Mother was planning to

get a part-time job. Mother admitted that she had never paid child support and

had never given Hall money for C.M.B.’s school expenses, but she had tried to

prove her fitness as a parent by attending parenting classes on her own and by

taking two drug tests and passing them.

      C.    Mother’s Husband’s Testimony

      Mother’s husband, Jeff Henry, testified that he had been married to Mother

for three years.   Henry admitted that he had been arrested in 1987 for

methamphetamines and had been sentenced to eight years in the penitentiary.

Henry was also convicted of DWI in 2002. After the DWI and before he met

Mother, he ―got [his] life together‖ and ―quit doing drugs.‖ He passed the drug

tests that he took while the conservatorship case was pending.

      Henry said that he treats C.M.B. like a son. Henry said that C.M.B. did not

live at the Hall residence; instead, Murphy and Hall had often called because

they wanted to see C.M.B.




      D.    Grandmother’s Testimony




                                   7
      Lynda Bisbey, who is Father’s mother and C.M.B.’s grandmother, testified

that she owns a double-wide mobile home in Fort Worth7 and that Father lives

with her. At the time of the conservatorship hearing, Bisbey was unemployed

and was looking for employment; to pay her bills, she relied on support that she

received from an inheritance.

      Bisbey testified that C.M.B. has never lived with her but that he has visited

her house ―probably once a month, maybe, or every couple of months.‖ Bisbey

said that she picked up C.M.B. from Mother’s house or Mother brought him to

her; Bisbey never picked up C.M.B. from Hall’s house. Bisbey was under the

impression that C.M.B. lived with Mother.

      Bisbey believed that Father would move out of her house and would rent a

place of his own once he became gainfully employed and could pay bills and

daycare.

      E.    Friend’s Testimony

      Vicki Smith, who was Murphy’s best friend, testified that she met C.M.B.

when he was two and was ―very disturbed‖ because he exhibited troubling

behavior.

      Smith’s understanding was that Mother had a long-term drug problem, and

Smith also suspected that there was physical violence at Mother’s house. Smith

met Mother when she was dropping off C.M.B. at Hall’s. Smith’s interactions with

      7
        Photos of her home, including photos of her stocked pantry and
refrigerator, were admitted into evidence.


                                    8
Mother were ―very much reflective of somebody who really did not -- was not

attempting to be adult.‖ Smith had also spoken with Mother on the phone and

had gathered that she was not the kind of person who could stay on task or have

a reasonable conversation. Smith testified that she thought C.M.B.’s exposure to

Mother’s environment and Mother’s conversation adversely affected his behavior.

Smith said that C.M.B. did not like going to visit his Mother.      After C.M.B.

returned to Hall’s home following a visit with Mother, C.M.B. acted out violently,

hit adults, cussed incessantly—including calling Smith a ―b[----]‖—and told

everyone around that he hated them.

      Smith had less knowledge about Father because she had seen him in

person only twice. She stated,

      I think what I have observed that C.M.B. does quite well with him. I
      have always thought he was a caring person. I never felt that
      C.M.B. was threatened like I did -- you know, his safety -- his
      physical safety like I did when he was at [Mother’s].

             I don’t think that C.M.B.’s biological father has the tools to
      really provide and attend to his special needs concerns.

Smith said that when C.M.B. returned from visits with Father, he appeared to

have had a pleasant experience and did not exhibit the same issues as after a

visit with Mother.

      Smith testified that she had not seen Hall’s participation decrease after

Murphy died; he continued to attend ARD meetings at the school to find out the

game plan for C.M.B.’s educational process. Smith testified that she had never

seen C.M.B. malnourished or dirty while Hall has cared for him, nor had C.M.B.

                                    9
exhibited signs of physical or emotional abuse while in Hall’s care. She said that

Hall was a very good father figure/parent figure for C.M.B. Hall was involved and

wanted to understand how to handle C.M.B.’s behavioral problems and what his

educational process requires. Smith recommended that Hall be appointed as the

permanent father of C.M.B. because Hall is stable and loving and is extremely

dedicated to caring for C.M.B.

      F.    Trial Court Disposition

      After hearing the above testimony and reviewing the record, the trial court

stated that he believed that Hall had carried his burden. The trial court thereafter

signed an order appointing Hall as sole managing conservator of C.M.B. and

giving Mother possession the first and fifth weekend of every month and giving

Father possession the third weekend of every month, along with other

possession at spring break, Thanksgiving, and Christmas break.8 The trial court

later made findings of fact, which are set forth below, and this appeal followed.

 III. NO ABUSE OF DISCRETION SHOWN IN APPOINTING NONPARENT CONSERVATOR

      In his first issue, Father argues that the trial court abused its discretion by

appointing as C.M.B.’s sole managing conservator Hall in lieu of Father.

Specifically, Father argues that the trial court abused its discretion in making the

conservatorship appointment because several findings of fact were not supported

      8
       The trial court also ordered Mother and Father to pay child support, to
repay medical reimbursement arrearages, and to provide medical support for
C.M.B., but those portions of the order are not detailed above because they are
not challenged on appeal.


                                     10
by the evidence, Hall relied on others to do his parenting, Hall did not have

consistent parenting help, and Father could provide a nice home for C.M.B.

      A.     Standard of Review

      We give wide latitude to a trial court’s decision on custody, control,

possession, and visitation matters. Earvin v. Dep’t of Family & Protective Servs.,

229 S.W.3d 345, 350 (Tex. App.—Houston [1st Dist.] 2007, no pet.) (citing

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We will not reverse a

conservatorship finding unless the record demonstrates that the trial court

abused its discretion.    See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007);

Whitworth v. Whitworth, 222 S.W.3d 616, 622–23 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (op. on reh’g). Under an abuse of discretion standard, challenges

to the legal and factual sufficiency of the evidence are not independent grounds

of error; rather, they are simply factors in assessing whether the trial court

abused its discretion. Gardner v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—

San Antonio 2007, no pet.).

      In determining whether there has been an abuse of discretion because the

evidence is legally or factually insufficient to support the trial court’s decision, we

engage in a two-pronged inquiry: (1) Did the trial court have enough information

upon which to exercise its discretion; and (2) did the trial court err by applying its

discretion? The traditional sufficiency review comes into play with regard to the

first question. In re W.M., 172 S.W.3d 718, 725 (Tex. App.—Fort Worth 2005, no

pet.); In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—Fort Worth 2002, pet.

                                      11
denied). With regard to the second question, we determine, based on the elicited

evidence, whether the trial court made a reasonable decision. W.M., 172 S.W.3d

at 725; T.D.C., 91 S.W.3d at 872.

      Findings of fact entered in a case tried to the court have the same force

and dignity as a jury’s answers to jury questions. Anderson v. City of Seven

Points, 806 S.W.2d 791, 794 (Tex. 1991). The trial court’s findings of fact are

reviewable for legal and factual sufficiency of the evidence to support them by

the same standards that are applied in reviewing evidence supporting a jury’s

answer. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996); Catalina v. Blasdel,

881 S.W.2d 295, 297 (Tex. 1994).            When findings of fact are filed and are

unchallenged, they occupy the same position and are entitled to the same weight

as the verdict of a jury; they are binding on an appellate court unless the contrary

is established as a matter of law or there is no evidence to support the finding.

McGalliard v. Kuhlmann, 722 S.W.2d 694, 696 (Tex. 1986); Rischon Dev. Corp.

v. City of Keller, 242 S.W.3d 161, 166 (Tex. App.—Fort Worth 2007, pet. denied),

cert. denied, 129 S. Ct. 501 (2008).

      B.    Parental Presumption

      There is a strong presumption that the best interest of a child is served if a

natural parent is appointed a managing conservator. Whitworth, 222 S.W.3d at

623; see also Tex. Fam. Code Ann. § 153.131(a) (Vernon 2008).               Section

153.131 provides that a parent shall be appointed sole managing conservator

unless the court finds that appointment of the parent or parents would not be in

                                       12
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(a).

      For the court to award managing conservatorship to a nonparent under

section 153.131, the nonparent must prove a significant impairment by a

preponderance of credible evidence. Whitworth, 222 S.W.3d at 623; see also

Tex. Fam. Code Ann. § 105.005 (Vernon 2008) (―Except as otherwise provided

by this title, the court’s findings shall be based on a preponderance of the

evidence.‖); J.A.J., 243 S.W.3d at 616. There must be evidence to support the

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

will probably cause that harm.     Whitworth, 222 S.W.3d at 623.       Indeed, the

nonparent must offer evidence of specific acts or omissions of the parent that

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

emotional harm to the child. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.

1990); Whitworth, 222 S.W.3d at 623.

      An adult’s future conduct may be somewhat determined by recent past

conduct; however, evidence of past misconduct, in and of itself, may not be

sufficient to show present unfitness. Whitworth, 222 S.W.3d at 623. Specific

acts or omissions of a parent implicating a significant impairment to a child’s

emotional development may be inferred from direct evidence. Id. However, this

link between the parent’s conduct and harm to the child may not be based on

evidence that merely raises a surmise or speculation of possible harm. Id.

                                     13
         C.    Evidence of Significant Impairment

         Here, the trial court made fifteen findings of fact based on the testimony at

trial:

         Findings of Fact – Suit Affecting Parent Child Relationship
         (SAPCR)

                1.    Vickie Annette Murphy, biological Aunt of [C.M.B.], was
         the original Petitioner. However, Ms. Vickie Annette Murphy passed
         away on January 7, 2009. She was succeeded as Petitioner by her
         husband and current Petitioner Stephen Hall. Respondent [Mother]
         is the biological mother of the Minor Child. Respondent [Father] is
         the biological father of the child. [Mother] and [Father] are not
         married and do not live together at this time.

               2.     At the time of the filing of his Supplemental Petition,
         Stephen Hall had been a domiciliary of Texas for six months and a
         resident of Denton County for ninety days.

                3.     This suit was brought by Petitioner Stephen Hall
         seeking to be awarded custody of the Minor Child. Additionally,
         Petitioner Stephen Hall seeks child support, medical reimbursement
         and clarification of custody and visitation issues.

         Findings of Fact – SAPCR

               4.     At the time of the rendition of the Final Order, Petitioner
         Stephen Hall was seeking custody of the following child under the
         age of eighteen years:

                      Name: [C.M.B.]
                      Sex: MALE
                      Birth date: 06/08/2002

                5.    It is in the best interest of the child that Stephen Hall be
         appointed the Sole Managing Conservator of the child, with all the
         rights and duties of a Non Parent Appointed as Sole Managing
         Conservator as set out in Family Code Section 153.371, which
         Section is incorporated by reference as if fully set forth herein.




                                        14
       6.    There is credible evidence of a history or pattern of past
or present child neglect or physical abuse or drug abuse by [Mother]
directed against the Minor Child, or done while in possession of the
Minor Child and it is not in the best interest of the Minor Child that
[Mother] be appointed as Sole or Joint Managing Conservator of the
Minor Child.

       7.    There is credible evidence of a history or pattern of past
or present child neglect or physical abuse or drug abuse by [Father]
directed against the Minor Child, or done while in the possession of
the Minor Child and it is not in the best interest of the Minor Child
that [Father] be appointed as Sole or Joint Managing Conservator of
the Minor Child.

Findings of Fact – Possession

        8.    The periods of possession vary from the Standard
Possession Order for the following reasons: The Minor Child is a
Special Needs Child and has severe emotional and behavior issues.
The Minor Child requires constant care, assistance with
administering his medication and help with educational challenges.
Through testimony and other evidence Petitioner has proven himself
to be the consummate caregiver and the Minor Child has flourished
under his tutelage. The established rapport that Petitioner has with
the Minor Child and the past history of neglect/abuse by [Mother]
mandate limited access by [Mother]. The Minor Child is agitated
when forced to communicate with [Mother] and the Minor Child is
more emotional and behavior challenged when he returns from
visitation with [Mother]. Similarly, the past history of extended
periods of absence by [Father] created an irreconcilable gap in his
relationship with the Minor Child and the Minor Child is having more
difficulty returning to his structure at home after visitation with
[Father]. The Minor Child will benefit from limited and structured
exposure to [Father].




Findings of Fact – Grandparent Possession of or Access to
Grandchild




                              15
           9.    At the time of the filing of this request for possession of
     or access to [C.M.B.], [Father] has not had his parental rights
     terminated.

           10. Denial of possession or access to the child by his
     Paternal Grandmother would significantly impair the child’s physical
     health or emotional well-being.

     Findings of Fact – Child Support

           11. The amount of child support ordered by the Court is in
     accordance with the percentage guidelines:

           12. The amount of child support payments per month that is
     computed if the percentage guidelines of section 154.125 of the
     Texas Family Code are applied to the first $7,500 of [Mother]’s net
     resources is $222.56; and

           13. The amount of child support payments per month that is
     computed if the percentage guidelines of section 154.125 of the
     Texas Family Code are applied to the first $7,500 of [Father]’s net
     resources is $222.56;

     Appointment of Non Parent as Sole Managing Conservator

           14. The Court finds by a preponderance of evidence and by
     clear and convincing evidence that (a) the appointment of [Father]
     would not be in the best interest of the Minor Child because such
     appointment would significantly impair the health and emotional
     development of the Minor Child[, and] (b) the appointment of
     [Mother] would not be in the best interest of the Minor Child because
     such appointment would significantly impair the health and
     emotional development of the Minor Child[.]

     Findings of Fact as Conclusions of Law

         15. Any finding of fact that is a conclusion of law shall be
     deemed a conclusion of law.

     On appeal, Father challenges only findings of fact number 7, 8, and 14.

However, Father did not challenge the remaining findings of fact, including



                                   16
finding of fact number 5, which found that it was in C.M.B.’s best interest that Hall

be appointed as the sole managing conservator of C.M.B.             Nor did Father

establish the contrary as a matter of law; instead, the testimony at trial bore out

this finding of fact. Consequently, this finding of fact is binding on this court and

supports the trial court’s judgment. See McGalliard v. Kuhlmann, 722 S.W.2d

694, 696 (Tex. 1986); Rischon Dev. Corp., 242 S.W.3d at 166; In re X.V., No. 02-

09-00227-CV, 2010 WL 3193168, at *11 (Tex. App.—Fort Worth Aug. 12, 2010,

no pet.) (mem. op.) (holding that unchallenged findings of fact that were

supported by trial testimony were binding on appellate court).

      Moreover, Hall presented evidence that Mother had requested numerous

visits with C.M.B. since 2006 when Murphy filed suit to obtain custody; there was

no similar evidence regarding any requests from Father to visit with C.M.B. In

fact, the record seems to indicate that it was Bisbey, C.M.B.’s grandmother, who

requested the visits once a month or every other month and who established a

working relationship with Hall and that Father visited with C.M.B. only as a

byproduct of Bisbey’s requested visits. The record lacked evidence that Father

had attended meetings at the school to assist with C.M.B.’s special needs, nor

did the record contain evidence that Father had taken C.M.B. to any of his

appointments with his psychologist. Hall presented evidence that Father paid no

child support during the years C.M.B. was in Hall’s custody, and there was no

evidence that Father supported C.M.B. in any other way, such as by providing

medical care, school supplies, food, clothing, or birthday or Christmas presents.

                                     17
The evidence also demonstrated that Father did not have any income, that he did

not have a place of his own, and that he did not have the tools to ―really provide

and attend to [C.M.B.’s] special needs concerns.‖        Father’s future plans, as

explained by Bisbey, were speculative and were contingent on Father’s ability to

obtain employment.

      Father did not testify at the conservatorship hearing.           The limited

controverting evidence that came in via Hall’s friend, who had met Father in

person only twice, established that C.M.B. did ―quite well‖ with Father, that Father

was a caring person, that C.M.B.’s physical safety was not in jeopardy when he

visited with Father, and that C.M.B. appeared to have had a pleasant experience

when he returned from visits at Bisbey’s house where Father lived. However,

Bisbey, who would have been able to observe any interaction between Father

and C.M.B. while he was visiting at Bisbey’s house, did not provide any

testimony regarding if or how the two interacted.

      The record here demonstrated that appointing Father as managing

conservator of C.M.B.—which would require C.M.B. to move and to live with a

man whom he visited only once a month or every couple of months and who had

shown no ability to pay for or to tend to C.M.B.’s special needs—would

significantly impair his emotional development due to Father’s extended periods

of absence from C.M.B.’s life from the time he was one until he was seven. See

X.V., 2010 WL 3193168, at *12 (holding that it was within trial court’s discretion

to find that appointing mother as the child’s managing conservator would

                                     18
significantly impair his physical and emotional development because record

disclosed, among other facts, that mother could not financially support son, that

she was looking for full-time employment, that she was still working on her home,

and that it was best for son to remain in situation where he was thriving); Lopez

v. Dep’t of Family & Protective Servs., No. 01-08-00111-CV, 2008 WL 4367588,

at *7–8 (Tex. App.—Houston [1st Dist.] Sept. 25, 2008, pet. denied) (mem. op.)

(holding that it was within trial court’s discretion to find that appointing father as

the children’s managing conservator would significantly impair their physical and

emotional development because record disclosed, among other facts, that father

was unable to maintain stable employment and housing).            Because sufficient

evidence exists that appointing Father as managing conservator of C.M.B. would

significantly impair C.M.B.’s emotional development, we therefore hold that the

trial court did not abuse its discretion by concluding that Hall had overcome the

parental presumption by proving that appointing Father as C.M.B.’s managing

conservator would cause C.M.B. significant impairment by a preponderance of

credible evidence. See Whitworth, 222 S.W.3d at 623; In re Rodriguez, 940

S.W.2d 265, 272 (Tex. App.—San Antonio 1997, pet. denied) (affirming

appointment of nonparent as the managing conservator of the child when child

had lived with nonparents since day after her birth, had visited only twice with

father, had bonded with nonparents, and had received cards addressed by and

presents bought by paternal grandmother; suggesting that significant impairment

of emotional development may be inferred from uprooting a child or from

                                      19
placement with parent who has a poor track record for stability and continuity); In

re Hidalgo, 938 S.W.2d 492, 497 (Tex. App.—Texarkana 1996, no writ) (holding

that evidence supported conclusion that appointment of mother as sole

managing conservator would significantly impair the emotional development of

the child since she had effectively abandoned the child from shortly after birth

until she was eleven); X.V., 2010 WL 3193168, at *12; Heiskell v. Kendrick, No.

14-06-00972-CV, 2007 WL 3072002, at *4 (Tex. App.––Houston [14th Dist.] Oct.

23, 2007, no pet.) (mem. op.) (holding that sufficient evidence existed to show

that father’s appointment as managing conservator would significantly impair the

children’s physical health or emotional development because father had

physically attacked mother on a number of occasions, had made only sporadic

visits to the children following separation from mother, and had failed to provide

adequate financial support for children). Father’s arguments on appeal that Hall

had relied on others to do his parenting, that Hall did not have consistent

parenting help, and that Father could provide a nice home for C.M.B. fall short—

especially in light of his failure to testify as to his relationship with and plans for

caring for C.M.B.—and do not controvert the fact that Hall had overcome the

parental presumption by a preponderance of credible evidence. We therefore

overrule Father’s first issue.



        IV. POSSESSION AND ACCESS ORDER WAS SUPPORTED BY RECORD




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      In his second issue, Father argues that the trial court abused its discretion

by giving Mother more visitation than Father and by denying Father any visitation

with C.M.B. on Christmas Eve or Christmas Day.

      The public policy of this State is to assure continuing contact between

children and parents who have established the ability to act in their child=s best

interest; to provide a safe, stable, and nonviolent environment for the child; and

to encourage parents to share in their child=s development after separation or

divorce. Tex. Fam. Code Ann. ' 153.001 (Vernon 2008). When determining

issues related to conservatorship or possession of and access to the child, the

best interest of the child is the primary consideration. Id. ' 153.002; In re M.S.,

115 S.W.3d 534, 547 (Tex. 2003).

      The Texas Family Code provides guidelines for trial judges to follow when

determining the periods of possession for a possessory conservator. Tex. Fam.

Code Ann. ' 153.192(b) (Vernon 2008). The Texas Family Code also provides

that there is a rebuttable presumption that the standard possession order

(1) provides reasonable minimum possession of a child for a parent named as a

possessory conservator or joint managing conservator and (2) is in the best

interest of the child. Id. ' 153.252. However, the Texas Family Code allows a

trial court to deviate from the standard possession order. When deviating from

the standard possession order, a trial court may consider (1) the age,

developmental status, circumstances, needs, and best interest of the child;




                                    21
(2) the circumstances of the managing conservator and of the parent named

possessory conservator; and (3) any other relevant factor. Id. ' 153.256.

      As mentioned above, in determining the issues of conservatorship and

possession of and access to the child, the trial court is given wide latitude in

determining the best interest of the child and will be reversed only for an abuse of

discretion.   In re C.R.T., 61 S.W.3d 62, 65 (Tex. App.CAmarillo 2001, pet.

denied) (citing Gillespie, 644 S.W.2d at 451). This is, in part, because the trial

court is in a better position having Afaced the parties and their witnesses,

observed their demeanor, and had the opportunity to evaluate the claims made

by each parent.@ Coleman v. Coleman, 109 S.W.3d 108, 111 (Tex. App.CAustin

2003, no pet.). Thus, when the testimony of witnesses is conflicting, this court

will not disturb the credibility determinations made by the factfinder. See id. A

reviewing court=s holding that a trial court did not abuse its discretion implies that

the evidence contained in the record rebutted the presumption that the standard

possession order was reasonable and in the child=s best interest. See Niskar v.

Niskar, 136 S.W.3d 749, 756 (Tex. App.CDallas 2004, no pet.).

      With regard to the age, developmental status, circumstances, needs, and

best interest of the child, the trial court specifically found—as set forth above in

finding of fact number 8—that the standard possession order was not reasonable

and not in the seven-year-old child=s best interest for the following reasons: ―The

Minor Child is a Special Needs Child and has severe emotional and behavior




                                      22
issues. The Minor Child requires constant care, assistance with administering

his medication and help with educational challenges.‖

      With regard to the circumstances of the managing conservator and of the

parent named possessory conservator, the trial court had before it evidence that

Hall had a job with a steady income and a nice home and that he provided for all

of C.M.B.’s needs. Hall was involved and worked to understand how to handle

C.M.B.’s behavioral problems and what his educational process requires. The

trial court also had before it evidence that Father was unemployed, that Father

had not made any child support payments to Hall, and that Father had not

actively and regularly participated in C.M.B.’s life from the time C.M.B. was a little

over a year old until he was seven. There was no evidence regarding how many

visits Father had with C.M.B. after suit was filed in 2007.

      Based on the record, the trial court was in the best position to weigh

Mother’s demonstrated interest in initiating visits and her potentially volatile

environment against Father’s nice home but lack of visits and time spent with

C.M.B. The trial court was also in the best position to determine whether a

Christmas Eve or Christmas Day visit was warranted in light of the fact that only

Bisbey—not Father—had provided money once for a Christmas gift for C.M.B.

Accordingly, we hold that the trial court did not abuse its discretion by entering a

modified possession and access order that was in C.M.B.’s best interest. See In

re T.J.S., 71 S.W.3d 452, 459–60 (Tex. App.—Waco 2002, pet. denied) (holding

that evidence supported variance from standard possession order because,

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among other facts, eighteen-year-old father who lived with his parents had not

seen child since birth, had not asked to see the child, and had not provided

financial support nor gifts for child); see also Elmakiss v. Elmakiss, No. 12-06-

00405-CV, 2008 WL 2358221, at *9–12 (Tex. App.—Tyler June 11, 2008, no

pet.) (mem. op.) (holding that trial court did not abuse its discretion by ordering

terms of possession that differed from standard possession order because,

among other facts, father lacked employment and demonstrated a lack of

awareness of child’s developmental status or needs).       We therefore overrule

Father’s second issue.

                                 V. CONCLUSION

      Having overruled Father’s two issues, we affirm the trial court’s judgment.



                                                   SUE WALKER
                                                   JUSTICE

PANEL: GARDNER, WALKER, and MCCOY, JJ.

DELIVERED: April 21, 2011




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