Opinion filed November 7, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                                 No. 11-19-00189-CV
                                     __________

                 IN THE INTEREST OF J.F., A CHILD


                    On Appeal from the 326th District Court
                             Taylor County, Texas
                       Trial Court Cause No. 08921-CX


                     M E M O RAN D U M O PI N I O N
      This appeal stems from an order entered in a suit affecting the parent-child
relationship. The suit was filed by the Department of Family and Protective
Services. The trial court held a bench trial and entered an order in which it
(1) appointed the intervenors, who were fictive kin in this case, as the sole managing
conservators of the child, J.F.; (2) removed the Department as a conservator;
(3) appointed the child’s mother as a possessory conservator; (4) declined to appoint
the child’s father as any type of conservator of the child; (5) ruled that the father
shall have no possession of or access to the child; and (6) ordered the mother and the
father to pay child support to the intervenors. The trial court did not terminate the
parental rights of the father, but it found that appointing the father as a conservator
“at this time . . . is not in the best interest of the child” and that granting “possession
of or access to the child . . . would endanger the physical or emotional welfare of the
child.” The child’s father filed a notice of appeal. We affirm.
       In his sole issue on appeal, Appellant asserts that the trial court abused its
discretion in failing to appoint him as a possessory conservator with restricted
access. Appellant contends that the evidence is legally and factually insufficient to
overcome the statutory presumption that his appointment as a possessory
conservator with access to the child is in the child’s best interest.
       The statutory presumption to which Appellant refers is found in
Section 153.191 of the Texas Family Code. Under that section, a trial court “shall
appoint as a possessory conservator a parent who is not appointed as a sole or joint
managing conservator” unless the trial court finds that the appointment is not in the
best interest of the child and that the parent’s possession of or access to the child
“would endanger the physical or emotional welfare of the child.” TEX. FAM. CODE
ANN. § 153.191 (West 2014). The terms of an order by which a trial court denies
possession or imposes restrictions on a parent’s right to possession or access “may
not exceed those that are required to protect the best interest of the child.” Id.
§ 153.193.
      The best interest of the child is always the primary consideration of the court
in determining the issues of conservatorship, possession, and access with respect to
a child. Id. § 153.002. A trial court is given wide latitude in determining the best
interest of a child, and the trial court’s determination in this regard is reviewed under
an abuse-of-discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.
1982). “Conservatorship determinations . . . are subject to review only for abuse of
discretion, and may be reversed only if the decision is arbitrary and unreasonable.”
In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Gillespie, 644 S.W.2d at 451).
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Thus, when addressing an appellate issue challenging a trial court’s determination
of conservatorship, we do not treat legal and factual sufficiency challenges as
independent grounds of error but, rather, as factors used to determine whether the
trial court abused its discretion. In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—
Houston [1st Dist.] 2017, pet. denied); Gardner v. Gardner, 229 S.W.3d 747, 751
(Tex. App.—San Antonio 2007, no pet.); London v. London, 192 S.W.3d 6, 14 (Tex.
App.—Houston [14th Dist.] 2005, pet. denied); see J.A.J., 243 S.W.3d at 616. We
must also keep in mind that a trial court’s findings as to conservatorship must only
be supported by a preponderance of the evidence, rather than by clear and convincing
evidence. J.A.J., 243 S.W.3d at 616; see FAM. § 105.005 (West 2019).
      At the time of the trial in this case, J.F. was almost eight years old. He had
lived with his mother until she and her boyfriend were pulled over and found to be
in possession of drugs. J.F. was later placed with Appellant. The Department
subsequently removed J.F. from Appellant’s care in November 2017. After removal,
Appellant did not comply with the trial court’s orders, which included submitting to
a drug test and completing a substance abuse assessment, and did none of his
services.
      J.F.’s mother testified that, if J.F. were returned to her, she would not let
Appellant visit J.F. until Appellant could prove to her that he had a place to live and
was “clean from drugs.” The mother also testified that Appellant was “so not stable”
and that he had no place to live and no job. The mother indicated that she would not
keep J.F. from Appellant forever—just until she had some type of assurance that it
was safe for J.F. to be around Appellant. The mother also testified that, as of the
time of trial, she believed that Appellant’s parental rights should be terminated.
      The conservatorship caseworker testified that Appellant did not comply with
the services that were ordered during the Family Based Safety Services case and that
the Department removed J.F. from Appellant’s care after receiving the results of
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Appellant’s and J.F.’s court-ordered drug tests. Based upon the results of the hair
follicle testing on November 1, 2017, the Department was concerned about “drug
use and drug exposure,” and the trial court named the Department as temporary
managing conservator on November 3, 2017. Both Appellant and J.F.’s mother had
a history of drug use and instability.
       Appellant indicated at trial that J.F.’s exposure to methamphetamine was
attributable to J.F.’s mother, not to Appellant. However, other evidence in the record
belies Appellant’s suggestion that the mother was to blame for J.F.’s exposure to
drugs with respect to the November 1, 2017 drug test. The mother was arrested in
June 2017 on a motion to revoke. A certified copy of the judgment adjudicating the
mother’s guilt for the state jail felony offense of possession of methamphetamine,
an offense which the mother had committed in 2014, was admitted as an exhibit at
trial. That judgment reflects that the mother was in jail from June 17, 2017, through
November 29, 2017—the date of sentencing. The mother did not see J.F. while she
was in jail.
       When J.F. was removed from Appellant’s care, he was placed with the
intervenors—where his younger half-sister had also been placed. J.F.’s life prior to
removal was “very chaotic.” J.F. had behavioral issues, trust issues, and a problem
with defecating on himself. He was doing poorly in school, had trouble sleeping,
and had “very extreme behaviors, very extreme anger outbursts.” J.F.’s problems
improved tremendously after he was removed from his parents and placed with the
intervenors. J.F. is happy with the intervenors, and he never asks to visit Appellant.
       At trial, Appellant testified that he thought J.F. should be returned to the
mother. Appellant requested that he be awarded possessory conservatorship with a
standard possession order.
       After reviewing the record, we hold that the trial court did not abuse its
discretion when it declined to appoint Appellant as a possessory conservator and
                                          4
restricted his possession of and access to J.F. The evidence was sufficient to rebut
the statutory presumption and to support the trial court’s findings that (1) appointing
Appellant as a conservator “at this time . . . is not in the best interest of the child”
and (2) granting “possession of or access to the child . . . would endanger the physical
or emotional welfare of the child.” Based on the evidence presented at trial, it was
well within the trial court’s discretion to determine that limiting Appellant’s
possession and access was required to protect J.F.’s best interest and that J.F.’s
physical health or emotional development would be significantly impaired if
Appellant were appointed as a possessory conservator. See FAM. §§ 153.191, .193.
Appellant’s sole issue on appeal is overruled.
        We affirm the order of the trial court.




                                                                     KEITH STRETCHER
                                                                     JUSTICE
November 7, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.




        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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