Opinion filed March 21, 2019




                                               In The


            Eleventh Court of Appeals
                                           __________

                                    No. 11-17-00340-CV
                                        __________

            IN THE INTEREST OF M.T. AND J.T., CHILDREN


                         On Appeal from the 266th District Court
                                  Erath County, Texas
                            Trial Court Cause No. CV34652

                          MEMORANDUM OPINION
        Appellant is the mother of the children that are the subject of this suit, M.T.
and J.T. In a single issue, Appellant appeals the trial court’s order appointing G.A.
and G.A., both nonparents,1 as the permanent managing conservators of the children.
We affirm.
                                        Background Facts
        This appeal arises from a final order entered in a suit affecting the parent-child
relationship with the children, M.T. and J.T. The two children that are the subject


        1
        G.A. and G.A. are the paternal grandparents of J.T. The trial court also found that G.A. and G.A.
have had “substantial past contact” with M.T. We will refer to G.A. and G.A. as “the grandparents.”
of this appeal are the eldest of Appellant’s five children. At the time of the hearing,
M.T. was ten years old and J.T. was eight years old.
      In April 2017, the Department of Family and Protective Services initiated an
investigation after another of Appellant’s children, K.A.D., suffered a serious injury
while in Appellant’s care. K.A.D.’s foot was “halfway cut off by a lawnmower.”
The investigation revealed that three individuals living in the home were using
methamphetamine and that one of these individuals was operating the lawnmower
that harmed the child. Appellant testified that she did not use methamphetamine but
that she was aware that drug use was occurring within the home.
      Following this investigation, the Department implemented a family-based
safety plan. The plan required Appellant to prohibit the three methamphetamine
users from being near the children. Appellant did not comply with the terms and
conditions of this plan; the Department subsequently observed the prohibited
individuals in the home. As a result, in June 2017, the Department removed all five
of Appellant’s children from the home.
      Subsequently, the Department filed a suit for protection of a child, for
conservatorship, and for termination.         The grandparents filed a petition in
intervention seeking appointment as the sole managing conservators of M.T. and
J.T. The grandparents were named as temporary managing conservators of M.T.
and J.T. in August 2017. The grandparents’ suit was severed, and the trial court
dismissed the Department, ad litem attorneys, and CASA volunteers.
      The case proceeded to a final hearing on the grandparents’ suit. After the final
hearing, the trial court entered an order that appointed the grandparents as the
nonparent sole managing conservators of both children. The trial court found that
such appointment was in the best interest of the children and that the children’s
physical health and emotional well-being would be significantly impaired if the


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parents were appointed as joint managing conservators. Appellant was appointed as
the children’s possessory conservator.2
                                                Analysis
        In her sole issue on appeal, Appellant asserts that the evidence is insufficient
to overcome the presumption that a parent should be appointed as the managing
conservator of the children. Specifically, Appellant contends that the evidence is
insufficient to support the trial court’s finding that she presents a continuing danger
to the health and safety of the children. We disagree.
        We review the trial court’s conservatorship determination for abuse of
discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982). Under this standard, legal and factual sufficiency
challenges are not independent grounds of error but factors used to determine
whether the trial court abused its discretion. In re K.S., 492 S.W.3d 419, 426 (Tex.
App.—Houston [14th Dist.] 2016, pet. denied); In re E.S.H., No. 11-14-00328-CV,
2015 WL 2353349, at *1 (Tex. App.—Eastland May 14, 2015, no pet.) (mem. op.).
A trial court abuses its discretion by acting unreasonably, arbitrarily, or without
reference to guiding principles. In re K.S., 492 S.W.3d at 426. “A trial court does
not abuse its discretion if there is some evidence of a substantive and probative
character to support its decision.” Id. However, the best interest of the children are
always the primary consideration of the court in determining managing
conservatorship. TEX. FAM. CODE ANN. §153.002 (West 2014).
        Appellant relies on Section 262.201(g) of the Texas Family Code to assert that
the trial court abused its discretion in appointing the grandparents as the sole
managing conservators. See FAM. § 262.201(g) (West Supp. 2018). This section of

        2
          Both children have different biological fathers. The trial court appointed M.T.’s father as her
possessory conservator; however, J.T.’s father was not appointed as a possessory conservator on grounds
that doing so would significantly impair J.T.’s physical health or emotional well-being. Neither father is a
party to this appeal.
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the Family Code is applicable to suits by governmental entities to protect the health
and safety of the child. See id. §§ 262.001–.353. While this suit started as a
proceeding filed by the Department, the Department was subsequently dismissed as
a party, and the grandparents’ intervention suit was severed and transferred to
another court. Accordingly, Chapter 262 of the Texas Family Code was no longer
applicable to this proceeding. Instead, Section 153.131 governs the grandparents’
suit. See FAM. § 153.131.
      Although trial courts are afforded broad discretion in deciding family law
questions, the legislature has explicitly limited the exercise of that discretion when
a nonparent seeks to be appointed as a managing conservator. Danet v. Bhan, 436
S.W.3d 793, 796 (Tex. 2014). When a court determines conservatorship between a
parent and a nonparent, a presumption exists that appointing the parent
as the sole managing conservator is in the child’s best interest; this presumption
is deeply embedded in Texas Law. FAM. § 153.131; Danet, 436 S.W.3d at 796.
Section 153.131(a) provides:
      [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. § 153.131(a).
      The statutory language in Section 153.131(a) creates a strong presumption in
favor of parental custody and imposes a heavy burden on a nonparent. Lewelling v.
Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).          The nonparent may rebut the
presumption with affirmative proof, by a preponderance of the evidence, that
appointing the parent as managing conservator would significantly impair the child,
either physically or emotionally. Id.; see also In re J.A.J., 243 S.W.3d at 616.

                                          4
Usually, the nonparent must present evidence that shows a parent’s acts or omissions
will have a detrimental effect on the children’s physical health or emotional
development. In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no
pet.); see Lewelling, 796 S.W.3d at 167. Evidence of acts or omissions that may
constitute significant impairment include, but are not limited to, physical abuse,
severe neglect, drug or alcohol abuse, immoral behavior, parental irresponsibility,
and an unstable home environment. In re S.T., 508 S.W.3d at 492.
       Appellant did not contest the evidence offered during the final hearing. Three
witnesses testified at trial: Appellant and the grandparents. The evidence reflects
that there was a long history of drug use among Appellant’s family and friends.
Appellant testified that the three individuals using methamphetamine in the home
were the children’s maternal grandmother, the grandmother’s boyfriend, and
Appellant’s boyfriend, Joshua Largent. This history led the Department to
investigate Appellant on six different occasions since 2011.3 After an investigation
in 2012, the Department removed the children from the home due to
methamphetamine use, and the grandparents were given access to J.T. While not
determinative, a parent’s past conduct may have some bearing on future conduct.
See In re B.B.M., 291 S.W.3d 463, 469 (Tex. App.—Dallas 2009, pet. denied). This
history gave both grandparents cause for concern regarding the children’s health and
safety.
       The trial court heard testimony that Appellant was still associating with an
individual who was known to be involved with drugs and who was facing allegations
of sexual abuse against another one of Appellant’s children. Appellant testified that
she was still in a relationship with Largent and that he tested positive for
methamphetamine and marihuana use after the safety plan was put in place.

       3
        The record shows that the Department investigated Appellant in 2011, 2012, 2013, 2015, 2016,
and 2017.
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Appellant and Largent were living together, but he was only home one day a week.
Appellant continued the relationship even after one of her children made an outcry
of sexual abuse against Largent, which was being investigated at the time of trial.
M.T. corroborated the outcry made by the other child. The grandparents testified
that they were concerned for the children’s safety with regard to being around
Largent. Furthermore, the grandmother testified that M.T. made an outcry of sexual
abuse against her own father, which was also being investigated. The failure of a
parent to remove a child from an unstable environment is an example of a specific,
identifiable behavior that may rebut the parental presumption. In re R.F., Jr., No.
04-17-00582-CV, 2018 WL 1308542, at *2 (Tex. App.—San Antonio Mar. 14,
2018, no pet.) (mem. op.).
      Regarding the children’s emotional development, the trial court heard
testimony about the emotional instability that followed Appellant’s visits with the
children. Pursuant to the temporary orders, Appellant could visit the children with
the grandparents’ permission for no less than two hours every other week. Within a
couple of hours after the visits with Appellant, M.T. would start harming herself.
Both children would also scream, yell, and throw fits after visits with Appellant.
The grandparents testified that the children’s emotional well-being would be
significantly impaired if Appellant was appointed as the children’s managing
conservator. Evidence of disruptive or uncharacteristic behavior after the child’s
visit with a parent is some evidence of significant impairment of emotional
development. See In re J.C., 346 S.W.3d 189, 195 (Tex. App.—Houston [14th Dist.]
2011, no pet.).
      Furthermore, while the children were living with the grandparents, Appellant
did not initiate any visitation with the children or pay child support. Appellant did
not initiate a visit with the children until the week before the bench trial in December
2017. The grandmother testified that she set up times for Appellant to visit in
                                           6
September and October and that Appellant did visit with the children then. The last
visit that the grandparents initiated was on October 10. Appellant did not reach out
the entire month of November to see the children.                          While not determinative,
Appellant also failed to pay any child support or otherwise provide for the children.
The failure to visit and inconsistent communication with the children constitutes
some evidence that supports the trial court’s significant impairment finding. In re
S.T., 508 S.W.3d at 492.
        After reviewing the record, we hold that the trial court did not abuse its
discretion when it appointed the grandparents to be the children’s sole managing
conservators. The evidence supports the trial court’s findings that the children’s
physical health or emotional development would be significantly impaired if
Appellant were appointed as the managing conservator. Therefore, the grandparents
sufficiently rebutted the parental presumption. See FAM. §153.131(a). Appellant’s
sole issue is overruled.
                                         This Court’s Ruling
        We affirm the order of the trial court.




                                                           JOHN M. BAILEY
                                                           CHIEF JUSTICE


March 21, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.4

Willson, J., not participating.

        4
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.

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