                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                             NO. 2-08-015-CV


SHELLEY DURRELL HAINES CRITZ                                   APPELLANT/
AND ROGER ALLEN CRITZ                                     CROSS-APPELLANT


                                      V.

ROGER ALLEN CRITZ, JOSEPH                                        APPELLEES/
C. CRITZ, AND SHARON A.                                      CROSS-APPELLEE
CRITZ AND SHELLEY DURRELL
HAINES CRITZ

                                  ------------

        FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

                                  ------------

                                 OPINION

                                  ------------

     Appellant Shelley Durrell Haines Critz complains of the trial court’s final

decree of divorce appointing appellees Joseph C. Critz and Sharon A. Critz as

joint managing conservators of Ryder Critz. We reverse and remand.
                              I.   Background

     Roger and Shelley Critz met while they were both working at a nightclub

in the early 1990s. In February 1998, Shelley gave birth to their only child,

Ryder, and in September of that year, Shelley and Roger married.

     In February 2003, after an argument about Roger’s alleged drug use,

Roger moved out of their house. Shelley remained in the house with Ryder for

another six months before she learned that it was being foreclosed.

     Both Shelley and Ryder eventually moved in with Roger’s parents, Joseph

and Sharon Critz (the Grandparents). While Shelley and Ryder were living with

the Grandparents, Shelley met and began dating Chris Martinez. In January of

2004, she began staying with Chris and away from the Grandparents’ house

on weekends. In May 2004, Shelley became pregnant with Chris’s child.

     In June 2004, Shelley moved in with Chris and his parents while Ryder

continued to stay with his Grandparents. During much of the remainder of

2004, Shelley was hospitalized due to complications from her pregnancy. She

saw Ryder one day in September, two days in October, no days in November,

and three days in December. She also kept in contact with him by phone.

During Christmas, she drove to the Grandparents’ house to see Ryder but she

became sick on the return trip and miscarried.




                                      2
      On January 27, 2005, Roger filed an original petition for divorce

requesting that he be appointed primary joint managing conservator of Ryder.

The same day, the Grandparents filed a petition intervening into the divorce suit

seeking primary joint managing conservatorship on the grounds that Roger and

Shelley had voluntarily abandoned Ryder, and that appointing Roger or Shelley

as a primary conservator would significantly impair Ryder’s physical health or

emotional development.

      Shelley filed answers to the petitions, along with a counterpetition for

divorce requesting that she be appointed sole managing conservator, and

contending that appointment of the Grandparents or Roger as joint managing

conservators would not be in Ryder’s best interests.

      On May 12, 2005, the trial court issued temporary orders that gave the

Grandparents primary custody of Ryder, and delineated specific times when

Shelley and Roger had rights to possession.

      In November 2006, Todd Maslow, a caseworker for Family Court

Services, submitted a social study report recommending that Ryder should

continue to reside with the Grandparents, but that he should continue to see

Shelley as much as possible.

      In March 2007, the Grandparents filed a “parenting plan” for Ryder,

which intended to “establish guidelines,” “state the importance of [Ryder’s] well

                                       3
being,” and “establish goals for emotional support, education, and discipline.”

The parenting plan described their intentions for Ryder’s education (including

plans related to his ADHD), 1 his after-school care, his medical needs (including

a list of health care providers he would use), and Roger’s and Shelley’s

proposed roles.     The plan proposed that they, Shelley, and Roger all be

appointed as joint managing conservators, that the Grandparents should

establish his primary residence, and that Shelley and Roger should have

designated times of possession, including times during the summer and on

holidays.

      The issues regarding Ryder’s custody were tried before the trial court in

March 2007. After the parties rested and counsel made closing arguments, on

March 30, 2007, the trial court appointed the Grandparents, Shelley, and Roger

as joint managing conservators of Ryder, with the Grandparents having primary

possession and the authority to establish his permanent residence. The trial

court set particular dates and times for Shelley to have access to Ryder, but

stated that Roger would have such access only “at such times as is agreed




      1
          … Ryder was diagnosed with ADHD while in the second grade.

                                       4
upon” between him and his parents. In October 2007, the trial judge signed a

final decree of divorce that incorporated these decisions. 2

      In November 2007, Shelley filed a motion for new trial, asserting that the

evidence presented at trial was legally and factually insufficient to support the

trial court’s conservatorship decision, and she requested the court to issue

findings of fact and conclusions of law related to its decree.3 The Grandparents

responded to the motion for new trial and submitted proposed findings of fact

and conclusions of law, which the trial court adopted. In the court’s findings

of fact, the court found that the Grandparents “rebutted the parental

presumption” and that it was in Ryder’s best interest that the Grandparents,

Shelley, and Roger be appointed joint managing conservators. This appeal and

cross-appeal followed.

                              II.   Issues on Appeal

      Shelley complains of the trial court’s order appointing the Grandparents

as joint managing conservators of Ryder. She contends that the trial court

erred in failing to make specific findings of fact identifying the basis for its


      2
       … Specifically, the decree granted Shelley possession of Ryder on three
weekends per month, Thursday evenings, spring breaks, some of the time
during Ryder’s Christmas break, Mother’s Day, some other holidays, and forty-
two days during the summer, but gave possession to the Grandparents at “all
other times not specifically designated.”
      3
          … See Tex. R. Civ. P. 296.

                                         5
conclusion that the parental presumption was rebutted by the Grandparents.

She further contends that the evidence is legally and factually insufficient to

prove that she relinquished control of Ryder for more than one year and that

she would significantly impair Ryder’s physical or emotional well-being. Roger

complains of the trial court’s failure to specify his periods of possession and

access.

A.    Standard of Review

      A trial court’s decision regarding the conservatorship of a child is

reviewed under an abuse of discretion standard.4 To determine whether a trial

court abused its discretion, we must decide whether the trial court acted

without reference to any guiding rules or principles; in other words, we must

decide whether the act was arbitrary or unreasonable.5 Merely because a trial

court may decide a matter within its discretion in a different manner than an

appellate court would in a similar circumstance does not demonstrate that an

abuse of discretion has occurred.6



      4
       … See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no
pet.); Earvin v. Dep’t of Family & Protective Servs., 229 S.W.3d 345, 350
(Tex. App.—Houston [1st Dist.] 2007, no pet.).
      5
       … Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42
(Tex. 1985), cert. denied, 476 U.S. 1159 (1986).
      6
          … Id.

                                      6
      An abuse of discretion does not occur where the trial court bases its

decision on conflicting evidence. 7 Furthermore, an abuse of discretion does not

occur as long as some evidence of substantive and probative character exists

to support the trial court’s decision.8

B.    The Parental Presumption

      In her first issue, Shelley contends that the trial court abused its

discretion when it appointed the Grandparents as joint managing conservators

of Ryder without making specific findings related to the parental presumption

described by sections 153.131 and 153.373 of the family code. 9           Section

153.131 provides:

      (a)    Subject to the prohibition in Section 153.004,10 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


      7
          … In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding).
      8
          … See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).
      9
          … Tex. Fam. Code Ann. §§ 153.131, .373 (Vernon 2008).
      10
        … Section 153.004 states, in part, that in determining conservatorship,
a court shall consider evidence of the intentional use of abusive physical force
and that a court may not “appoint joint managing conservators if credible
evidence is presented of a history or pattern of past or present child neglect, or
physical or sexual abuse by one parent directed against the other parent, a
spouse, or a child . . . that results in the other parent becoming pregnant with
the child.” Tex. Fam. Code Ann. § 153.004(a)–(b) (Vernon 2008); see In re
R.T.H., 175 S.W.3d 519, 521 (Tex. App.—Fort Worth 2005, no pet.).

                                          7
      development, a parent shall be appointed sole managing
      conservator or both parents shall be appointed as joint managing
      conservators of the child.

      (b)   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. A finding of a history of family violence
      involving the parents of a child removes the presumption under this
      subsection.11

Section 153.373 states that

      [t]he 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
               nonparent, licensed child-placing agency, or authorized
               agency for a period of one year or more, a portion of
               which was within 90 days preceding the date of
               intervention in or filing of the suit; and

               (2)    the appointment of the nonparent or agency as
               managing conservator is in the best interest of the
               child.12

      Collectively, these statutes provide that it is presumed that the

appointment of “the parents of a child” as joint managing conservators is in the

best interest of the child.13 To overcome this presumption, a court must find



      11
           … Tex. Fam. Code Ann. § 153.131.
      12
           … Id. § 153.373.
      13
           … Id. §§ 153.131(a),(b), .373.

                                         8
that (1) appointment of the parents would significantly impair the child’s

physical health or emotional development, (2) the parents have exhibited a

history of family violence, or (3) the parents voluntarily relinquished care,

control, and possession of the child to a non-parent for a year or more. 14 A trial

court’s conclusion that the parental presumption has been rebutted must be

supported by specific findings of fact identifying the factual basis for the

finding, and the failure to make such findings constitutes error. 15

      Shelley contends that the trial court was required to specifically make one

of these three findings to appoint the Grandparents as joint managing

conservators. Relying on a Texas Supreme Court opinion construing a former

version of the family code, the Grandparents assert that the presumption does

not apply and, therefore, no findings were required because Shelley and Roger

were also made joint managing conservators.

      In Brook v. Brook,16 the supreme court construed former family code

section 14.01, which provided, in pertinent part, as follows:




      14
       … Id. §§ 153.131(a),(b), .373; see In re N.J.G., 980 S.W.2d 764, 766
n.1 (Tex. App.—San Antonio 1998, no pet.).
      15
       … Chavez v. Chavez, 148 S.W.3d 449, 459–60 (Tex. App.—El Paso
2004, no pet.); see Tex. Fam. Code Ann. §§ 153.004, .131, .373.
      16
           … 881 S.W.2d 297 (Tex. 1994).

                                        9
     (a)    In any suit affecting the parent-child relationship, the court
     may appoint a sole managing conservator or may appoint joint
     managing conservators. A managing conservator must be a
     suitable, competent adult, or a parent, or an authorized agency. If
     the court finds that the parents are or will be separated, the court
     shall appoint at least one managing conservator.

     (b)   A parent shall be appointed sole managing conservator or
     both parents shall be appointed as joint managing conservators of
     the child unless:

             (1)   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.17

The supreme court held that section 14.01 authorized a trial court to appoint

a non-parent as a joint managing conservator without proof that appointment

of a parent or the parents would significantly impair the child’s health or

development, so long as the non-parent shares custody with a parent.18

     Unlike current section 153.131, former section 14.01 contained no

rebuttable presumption that appointment of both parents as joint managing




     17
        … Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 1, sec. 14.01(a),
1993 Tex. Gen. Laws 2989, 2989, repealed by Act of April 6, 1995, 74th
Leg., R.S., ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282; Act of May 28, 1989,
71st Leg., R.S., ch. 370, § 1, sec. 14.01(b)(1), 1989 Tex. Gen. Laws 1461,
1461, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 1995
Tex. Gen. Laws 282, 282.
     18
          … Brook, 881 S.W.2d at 300.

                                       10
conservators is in the child’s best interest. 1 9 At the time Brook was decided,

a trial court was authorized to appoint parents as joint managing conservators

only upon finding that the appointment would be in the child’s best interest. 20

This is no longer the law.21

      Under current section 153.131, it is now presumed that the appointment

of both parents as joint managing conservators is in the child’s best interest. 22

This substantive change in the parental presumption law is not addressed by

the dissent. When Brook was decided, there was no rebuttable presumption

that both parents be appointed joint managing conservators.          Thus, under




      19
        … See Tex. Fam. Code Ann. § 153.131(b), Historical and Statutory
Notes (“Acts 1995, 74th Leg., ch. 751 . . . added subsec. (b),” which provides
for “rebuttable presumption that the appointment of the parents of a child as
joint managing conservators is in the best interest of the child”).
      20
       … See Act of May 14, 1991, 72nd Leg., R.S., ch. 161, § 2, 1991 Tex.
Gen. Laws 771, 771, repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 20,
§ 2, 1995 Tex. Gen. Laws 282, 282; see also Brook, 881 S.W.2d at 298.
      21
        … While we have found no legislative history beyond the changes made
to the current statute after section 14.01 was repealed that expressly indicates
that the legislature intended to overrule or nullify Brook when it repealed section
14.01, it is clear from a comparison of the two statutes that the post-Brook
changes to the statutes were substantive.
      22
        … See Tex. Fam. Code Ann. § 153.131(a) (“both parents shall be
appointed as joint managing conservators of the child”) (emphasis added), §
153.131(b) (“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.”)
(emphasis added).

                                        11
former law, so long as one parent was appointed a joint managing conservator,

as was the case in Brook, the parental presumption was satisfied.         Under

section 153.131, however, a non-parent may not be appointed a joint managing

conservator without overcoming the presumption as to both parents. 2 3 The

plain wording of the statute makes clear that this presumption applies when a

non-parent seeks managing conservatorship in lieu of or in addition to both

parents.   There is no language in section 153.131 that indicates that the

presumption is inapplicable to the appointment of non-parents as joint managing

conservators when the trial court also appoints one or both parents. Nor does

Brook compel this result.

      The dissent suggests that we have departed from binding precedent of

the supreme court and of this court. We clearly have not. Brook, and this

court’s nearly twenty-year-old decision following it,24 interpreted and applied a


      23
        … See Tex. Fam. Code Ann. § 153.131(a) (“both parents shall be
appointed as joint managing conservators of the child”) (emphasis added), §
153.131(b) (“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.”)
(emphasis added). The dissent contends that the presumption does not apply
to the grandparents because both parents were appointed as joint managing
conservators. But section 153.131 clearly requires that the presumption
favoring the appointment of both parents as joint managing conservators be
rebutted by any non-parent seeking a joint managing conservatorship
appointment in lieu of or in addition to both parents.
      24
       … See Connors v. Connors, 796 S.W.2d 233, 239 (Tex. App.—Fort
Worth 1990, writ denied).

                                       12
former statute that did not contain a parental presumption requiring that both

parents be appointed joint managing conservators unless rebutted. Because

Brook construed a repealed statute that is substantively different than the

statute at issue here, we are, of course, not bound under the doctrine of stare

decisis by the Brook court’s interpretation of the repealed statute.25

      The dissent takes the novel position that the presumption does not apply

to the appointment of the joint managing conservators in this case, but that it

does apply to which joint managing conservator should determine the child’s

permanent residence. As written by the legislature, however, section 153.131

contains no language that indicates a legislative intent that a parental

presumption applies to the issue of primary custody apart from the

determination of joint managing conservatorship. The title to section 153.131

is “Presumption That Parent to be Appointed Managing Conservator.” 26

Moreover, the statute expressly refers to a presumption that a parent should be

appointed “sole managing conservator,” or that both parents should be

appointed “joint managing conservators”—it makes no reference to a separate



      25
       … See Lal v. Harris Methodist Fort Worth, 230 S.W.3d 468, 473–74
(Tex. App.—Fort Worth 2007, no pet.) (rejecting argument that statute that
was substantively amended should be construed as if it had not been
amended).
      26
           … Tex. Fam. Code Ann. § 153.131 (emphasis added).

                                      13
presumption for determining which joint managing conservator chooses the

child’s permanent residence. 27 To reach the result that the dissent advocates,

we would be required to legislate from the bench and convert the managing

conservator presumption into a “primary custody” presumption with no

statutory authority for doing so. We are not inclined to do this.28

      We hold that the trial court correctly followed express provisions of the

family code by applying the parental presumption to the appointment of the

Grandparents as joint managing conservators in this case. Upon finding that

the parental presumption was rebutted, however, the trial court failed to make

findings specifically stating how the presumption was rebutted.29 The failure

to make such findings is error.30 This error was waived, however, because




      27
           … Id.
      28
        … Moreover, the two El Paso Court of Appeals opinions on which the
dissent relies actually support the conclusion that the parental presumption only
applies to primary custody in the context of determining joint managing
conservatorship between a parent and non-parent. See Sotelo v. Gonzales, 170
S.W.3d 783, 788 (Tex. App.—El Paso 2005, no pet.); In re De La Pena, 999
S.W.2d 521, 534–35 (Tex. App.—El Paso 1999, no pet.).
      29
        … The trial court also offered no explanation for why he appointed
Shelley and Roger joint managing conservators of Ryder after concluding that
the presumption was rebutted, i.e., that it would not be in Ryder’s best interest
to appoint his parents as joint managing conservators.
      30
           … Chavez, 148 S.W.3d at 459–60.

                                       14
Shelley did not timely request additional findings of fact.31 Shelley’s first issue

is overruled.

C.    The Sufficiency of the Evidence to Overcome the Parental Presumption

      We now turn to Shelley’s contention in her second issue that insufficient

evidence was presented by the Grandparents to rebut the presumption through

either voluntary relinquishment or significant impairment grounds.32

      1.      Standards of Review

      In an abuse of discretion review, legal and factual insufficiency are not

independent grounds for asserting error, but are merely relevant factors in

assessing whether a trial court abused its discretion. 3 3 Thus, in applying the

abuse of discretion standard, an appellate court in a family law case must apply

a two-prong analysis: (1) whether the trial court had sufficient evidence upon

which to exercise its discretion; and (2) whether the trial court erred in applying

its discretion.34


      31
           … Tex. R. Civ. P. 297, 299; Chavez, 148 S.W.3d at 459–60.
      32
        … Joseph and Sharon have not contended on appeal that the evidence
supported a finding that Shelley exhibited a history of family violence, so we
will not analyze this ground for rebutting the parental presumption. See Tex.
Fam. Code Ann. § 153.131(b).
      33
       … M.P.B., 257 S.W.3d at 811–12; In re M.C.F., 121 S.W.3d 891, 895,
899 (Tex. App.—Fort Worth 2003, no pet.).
      34
           … M.C.F., 121 S.W.3d at 895.

                                        15
      We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact, (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered

to prove a vital fact, (3) the evidence offered to prove a vital fact is no more

than a mere scintilla, or (4) the evidence establishes conclusively the opposite

of a vital fact.35 In determining whether there is legally sufficient evidence to

support the finding under review, we must consider evidence favorable to the

finding if a reasonable factfinder could and disregard evidence contrary to the

finding unless a reasonable factfinder could not.36

      When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and

weighing all of the evidence in the record pertinent to that finding, we

determine that the evidence supporting the finding is so weak, or so contrary




      35
        … Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex.
1998), cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence"
and "Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63
(1960).
      36
       … Cent. Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex.
2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

                                       16
to the overwhelming weight of all the evidence, that the answer should be set

aside and a new trial ordered.37

      2.    Voluntary Relinquishment of Ryder for a Period of One Year or More

      The Grandparents contend that Shelley’s sparse contact with Ryder from

January 2004 to January 2005 proves that she voluntarily relinquished actual

care, control, and possession of Ryder to them. We disagree.

      Between January and April of 2004, Shelley maintained her permanent

residence with Ryder and saw him on a majority of days. While she was absent

from Ryder on several occasions during that time period, there is no evidence

that she intended to surrender the care of Ryder.

      After Shelley moved out of the Grandparents’ residence in June 2004,

the time she spent with Ryder decreased.38 But, the testimony of both Shelley

and Sharon shows that, although Shelley was often physically separated from

Ryder in the latter part of 2004, she did not intend to relinquish control of him.

      Shelley testified that she had agreed with the Grandparents that Ryder

would stay with them long enough to complete his school year, and that she



      37
        … Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on
reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate,
150 Tex. 662, 664–65, 244 S.W.2d 660, 661 (1951).
      38
       … According to Sharon’s calendar, Shelley saw Ryder only twenty times
from June through December 2004.

                                       17
would change Ryder’s school and have him live with her the following year.

Shelley stated that she talked with the Grandparents about this plan “[w]eekly

from the moment that [she] didn’t stay at their house” and that she was “made

to believe” that the change was going to happen. Sharon testified that she was

aware of these plans when Shelley moved out of her house, and that she knew

that Shelley’s intention was to take Ryder back. She also admitted that even

when Shelley moved away, she was “still involved in decisions regarding

Ryder” and, most importantly, that Shelley “never actually, really relinquished

. . . control completely.”

      Thus, while Shelley may have been physically apart from Ryder for a

substantial part of 2004, there is no evidence that she voluntarily relinquished

actual care, custody, and control of him to the Grandparents.39



      39
        … Even if we were to conclude that some evidence of relinquishment
existed beginning in June 2004, when Shelley moved out of the Grandparents’
home, she filed answers to Roger’s petition and the Grandparent’s petition in
intervention in February 2005 and, therefore, ended any period of voluntary
relinquishment approximately seven months after leaving the Grandparents’
house to leave Ryder with his grandparents. See In re S.W.H., 72 S.W.3d 772,
777 (Tex. App.—Fort Worth 2002, no pet.). Moreover, in May 2005, the trial
court entered a temporary order restricting Shelley’s access to Ryder. In light
of such an order, any relinquishment by Shelley that occurred while the order
was in effect was involuntary. Id. (concluding that a temporary restraining
order entered against a parent ended the parent’s period of voluntary
relinquishment); see also In re M.W., 959 S.W.2d 661, 668 (Tex. App.—Tyler
1997, writ denied) (suggesting that voluntary relinquishment ends when
temporary restrictions are ordered).

                                      18
      3.       Significant Impairment of Ryder's Physical Health or Emotional
               Development

      Shelley also contends that the evidence is legally and factually insufficient

to establish that appointing her and Roger as joint managing conservators would

significantly impair Ryder’s physical health or emotional development. 4 0

Although there is some evidence to support a finding of significant impairment,

we agree with Shelley that the evidence is factually insufficient to support such

a finding.

      Impairment must be proved by a preponderance of the evidence indicating

that some specific, identifiable behavior or conduct of the parent, demonstrated

by specific acts or omissions of the parent, will probably cause that harm.41

This is a heavy burden that is not satisfied by merely showing that the non-




      40
           … See Tex. Fam. Code Ann. § 153.131(a); Sotelo, 170 S.W.3d at 788.
      41
        … Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990);
Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st
Dist.] 2007, no pet.) (stating that the “link between the parent’s conduct and
harm to the child may not be based on evidence which merely raises a surmise
or speculation”); see Tex. Fam. Code Ann. § 105.005 (Vernon 2008) (stating
that findings in family law cases must generally be proved by the
preponderance standard).

                                       19
parent would be a better custodian of the child.42    “Close calls” should be

decided in favor of the parent.43

      Evidence of past misconduct is not alone sufficient to show present

unfitness.44 “If the parent is presently a suitable person to have custody, the

fact that there was a time in the past when the parent would not have been a

proper person to have such custody is not controlling.” 45

      The evidence offered at trial was as follows:

      Diane Booth, a licensed social worker who conducted another study in

2006 after Maslow issued his report, testified that Joseph and Sharon were

“great grandparents” and that Shelley was a good mom who never put Ryder

in any danger and was generally doing a good job parenting him. She also

reported that Roger had drug addiction problems, that he described himself as

a “practicing alcoholic,” and that he seemed to be angry over the fact that he

had been adopted, but that he had steady work and that he “loved being


      42
           … Lewelling, 796 S.W.2d at 167.
      43
           … Id. at 168.
      44
           … Id.
      45
        … May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi
1992, writ denied) (op. on reh’g); see S.W.H., 72 S.W.3d at 777–78 (holding
that the mother’s past severe drug addiction and past incarcerations related to
drug use did not create a present likelihood of significant impairment to her
child).

                                      20
around Ryder.” She further explained that when she met with Ryder, he was

happy, but he was also confused about his living situation regarding the various

people who had requested custody of him. She also testified that she received

a letter from Ryder stating that he wanted to live with Shelley.

      Booth recommended that Ryder be placed with Shelley and opined that

it would be in Ryder’s best interest if the Grandparents fulfilled a secondary role

in a more typical grandparent relationship with Ryder.

      Barbara Martinez, Chris’s mother, testified that Shelley was a good

mother who took good care of Ryder when he was at her house. According to

Mrs. Martinez, Shelley bathed Ryder, did his laundry, disciplined him, and

helped him with his homework. Kyra Anderson, Ryder’s first grade teacher

during 2004 and 2005, testified that the Grandparents were very involved in

his school activities and in the progress Ryder was making in the classroom,

that Ryder “fully enjoyed being with” them, and that Shelley was not involved

with his schooling.46

      Dee Henderson, who had custody of Shelley’s daughter Lexi, testified

that she had concerns about Shelley’s ability as a parent because Shelley was




      46
      … At trial, Shelley testified that she visited Ryder’s school two days a
week and that she went to his school-related activities.

                                        21
unreliable and had only limited contact with Lexi.47 She also testified, however,

that she had no concerns that Lexi would be physically harmed while with

Shelley, that she had no concerns about Lexi’s safety at the Martinezes’ house,

and that she had never seen Shelley be physically or verbally abusive to Lexi or

Ryder.

      Cathy Baczynski, a licensed professional counselor, testified that, during

counseling, Roger discussed identity issues related to his adoption as well as

his substance abuse history, his need to overcome his ADHD, his frustration

about living with his parents, and his lack of communication with Shelley.

Baczynski also explained that she met with Ryder and gained the impression

from him that Roger needed to be much more involved in Ryder’s life. She also

stated that Ryder seemed to be happy living with his Grandparents and that his

needs were well met in their home, but that he would like to spend more time

with Shelley and that, as a general rule, it is always best for a child’s parents

to have custody if possible.    She concluded that Roger has made positive

strides, but he does not have the ability to be Ryder’s primary managing

conservator.



      47
        … Shelley has had six pregnancies. Among these, she had a daughter
in 1994 named Lexi whom she lived with for only six months and shared
access to at the time of trial, and she also had a baby with Chris after her
miscarriage, who was six months old when the trial began.

                                       22
      Roger testified that he resided with his parents for three years preceding

the trial, that he was currently employed in the information technology field,

and that he had previously been employed as a bartender at several locations.

He stated that two years had passed from the last time he used illegal drugs

and that he drank alcohol about once a week at the time of trial, becoming

drunk occasionally. He expressed a desire to be a good father and also gave

his opinion that Ryder should continue to reside with the Grandparents because

he felt Ryder needed more “structure and support,” but that Shelley should

have equal time with Ryder and that she “loves [Ryder] very much.” However,

Roger also testified that in January 2005 Shelley threatened to take Ryder

away so that he and the Grandparents would never see Ryder again. 48 He

further said that when he first separated from Shelley he was concerned for

Ryder’s safety because he believed Shelley did not take care of Ryder’s physical

needs.

      Sharon testified that she and Joseph first began to keep Ryder at their

home every other weekend when he was born, and then they progressed to

keeping him every weekend and part of the summer before Shelley and Ryder

moved in with them in 2003. She also contended that Shelley was not very




      48
           … Sharon’s testimony confirmed the threat.

                                       23
involved in Ryder’s early education and that she often returned Ryder late from

her Wednesday visits with him. Sharon explained that upon picking up Ryder

from one of his visits to the Martinezes’ house, she became concerned about

broken glass surrounding a trampoline, a murky swimming pool, and an open

flame on the stove, which Shelley stated was used for heating. She was also

concerned that Shelley had taken Ryder to the nightclub during a poker

tournament that was hosted there.

      Sharon said that she saw Shelley slap Ryder one time, that Shelley told

her that she spanks Ryder, and that after returning from visits with Shelley,

Ryder had behavioral problems. She conceded, however, that Ryder missed

Shelley and that he and Shelley loved each other. She requested that the court

allow her and Joseph to keep Ryder during school weeks and split the rest of

Ryder’s access equally between Roger and Shelley.

      Joseph testified that he was concerned that Shelley could not provide a

stable financial environment for Ryder because she did not have a paying job,

did not have a car in her name, and did not have her own place to live.

Joseph described that Roger had taken a more active role in Ryder’s life, had

obtained a respectable job, had provided health insurance for Ryder, and had

sought help from a therapist to deal with Roger’s emotional problems.




                                      24
      Todd Maslow (who submitted the original social study report) testified

that, despite his recommendation that Ryder should remain with his

Grandparents, he would not have concerns about Ryder’s safety if he stayed

with Shelley and did not believe that Ryder living with Shelley would

significantly impair Ryder’s physical health or emotional development.49 He also

testified that when he talked to Ryder when completing his initial study, Ryder

told him he wanted to live with Shelley.

      The Grandparents also rely on evidence of Shelley’s history of drug use

and her living and financial conditions as proof that Ryder’s physical and

emotional health would be impaired by the appointment of Shelley and Roger

as joint managing conservators. At the time of trial, however, Shelley was not

taking any medications.    While she admitted that she had previously been

dependent on drugs prescribed for her multiple sclerosis,50 and evidence


      49
         … Specifically, Maslow stated that the move to live with Shelley “could
affect [Ryder’s] emotional adjustment; but seriously impair, no.” He did,
however, testify that he believed the Grandparents and Roger were providing
Ryder with security in his current placement, that Ryder should remain with
them, and that he retained some concerns about some of Shelley’s
circumstances and her truthfulness on some of the responses she gave to him
in his initial survey.
      50
        … Shelley had taken many prescription medications, including
Suboxone, Seroquel, Hydrocodone, Ambien, Lunesta, Lamictal, and Xanax at
various times before trial. These medications sometimes made her dizzy or
drowsy with slurred speech. Sharon testified that in 2003, Shelley often left
medication out in places that Ryder had access to, and that in 2005, during one

                                      25
established that she had taken high dosages of several types of prescription

medications that sometimes negatively affected her, 51 she testified that at the

time of trial, she was not taking any prescription medications, she had no

current symptoms from her multiple sclerosis, and she only had one

prescription—for Xanax—filled within the previous six months. No evidence

was presented indicating that Shelley was still taking high dosages of

prescription medications at the time of or recently before trial; in fact, a

“prescription profile” exhibit submitted into evidence by the Grandparents listed

no prescriptions for Shelley after 2005. Thus, while Shelley’s drug use may

have affected her fitness as a mother in the past, there was no evidence

presented of any current drug use that would cause significant impairment to

Ryder’s physical health or emotional development in the present.

      With regard to Shelley’s living and financial conditions, the evidence

shows that, at the time of trial, Shelley and Chris, who also has a history of

drug abuse, were living together at his parents’ home. Chris, however, offered



of Shelley’s scheduled visits with Ryder, the medication caused Shelley to sleep
for a prolonged period on Ryder’s bedroom floor.
      51
        … A pharmacist called by Roger’s attorney described the medications
Shelley had taken and opined that the dosages were high, but admitted that she
had limited knowledge of multiple sclerosis and the reasons why Shelley’s
doctors may have been prescribing the types and amounts of medication she
was taking.

                                       26
uncontroverted testimony that he had not used illegal drugs in at least the four

years preceding trial. Also, the evidence established that at the Martinezes’ five

bedroom, two story house, Ryder had his own room and that Shelley’s work at

the nightclub on weekends could allow her to be a stay-at-home mom for Ryder

during weekdays.52 Shelley’s residence at the Martinezes’ house seemed to be

stable. Mrs. Martinez testified that Shelley had become like a daughter to her

and that if Chris’s and her relationship became estranged, Shelley could

continue to live at her house with Ryder. Although, as the Grandparents point

out, Shelley does not own or lease a vehicle, carry health insurance, or maintain

paid employment, Mrs. Martinez testified that Shelley has access to four

vehicles at her house and that she is “free to take them anytime,” Roger carries

insurance for Ryder, and Shelley’s lack of paid employment is “no evidence” of

a potential for significant impairment to Ryder.53

      Finally, the Grandparents cite evidence in the record related to certain

conditions at the Martinezes’ house that they believe could cause harm to

Ryder. For example, they note that the Martinezes’ backyard had a murky pool

that was filled with leaves and a trampoline that had broken glass


      52
        … Shelley helped manage a nightclub that she, Chris, and Chris’s
parents jointly owned, although she received room and board in lieu of salary.
Chris’s mother watched Ryder when Shelley worked.
      53
           … See Lewelling, 796 S.W.2d at 167.

                                       27
underneath it. Mrs. Martinez, on the other hand, testified that Ryder was never

allowed unattended outside, that an alarm sounded if any door in the house

was opened, and that if the trial judge was concerned about the safety of the

pool, she would remedy those concerns. Sharon testified that she had learned

that the broken glass was from a patio table that had blown into the pool during

a windstorm; there was no evidence in the record as to how recently the

windstorm had occurred. Sharon was also concerned at trial about an open

flame used to heat the Martinezes’ house, but she admitted that Ryder had

been taught about fire hazards and that he was unlikely to attempt to play with

the flame.

      Viewing the entire record under the legal and factual sufficiency standards

of review articulated above, we conclude that, while there is some evidence

that placing Ryder under the joint managing conservatorship of Shelley and

Roger might significantly impair the physical health and emotional development

of Ryder, the evidence is factually insufficient to support a finding of such

impairment.

                                III.   Conclusion

      We hold that the trial court abused its discretion by appointing the

Grandparents as joint managing conservators because the evidence is

insufficient to support the trial court’s finding that the parental presumption

                                        28
was rebutted. There is no evidence that Shelley voluntarily relinquished actual

care, custody, and control of Ryder for one year or more, and the evidence is

factually insufficient to prove that the appointment of Ryder’s parents as joint

managing conservators would significantly impair Ryder’s physical health or

emotional development. We, therefore, reverse the provisions of the decree

pertaining to joint managing conservatorship, render judgment that a non-parent

shall not be appointed joint managing conservator based on Shelley’s alleged

voluntary relinquishment of Ryder’s care, custody, and control for the period

between January 2004 and January 2005, and remand the case for a new trial

on the issue of whether the appointment of Shelley and Roger as joint managing

conservators would not be in the best interest of Ryder because such an

appointment would significantly impair his physical health or emotional

development.54




                                           JOHN CAYCE
                                           CHIEF JUSTICE

PANEL: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ.

LIVINGSTON, J. filed a dissenting and concurring opinion.


      54
        … Because we have reversed and remanded the issues related to
conservatorship and possession, we need not address Roger’s sole issue in
which he contends that the trial court abused its discretion by rendering a
custody order that, although naming him a joint managing conservator of Ryder,
did not designate his periods of possession and access. See Tex. R. App. P.
47.1.

                                      29
DELIVERED: September 17, 2009




                                30
                      COURT OF APPEALS
                       SECOND DISTRICT OF TEXAS
                            FORT WORTH


                            NO. 2-08-015-CV




SHELLEY DURRELL HAINES CRITZ                                APPELLANT/
AND ROGER ALLEN CRITZ                                  CROSS-APPELLANT

                                     V.

ROGER ALLEN CRITZ, JOSEPH                                    APPELLEES/
C. CRITZ, AND SHARON A.                                  CROSS-APPELLEE
CRITZ AND SHELLEY DURRELL
HAINES CRITZ




                                 ------------

       FROM THE 231ST DISTRICT COURT OF TARRANT COUNTY

                                 ------------

            DISSENTING AND CONCURRING OPINION

                                 ------------

     The majority holds that the trial court could not appoint Joseph and

Sharon (the Grandparents) together with Shelley and Roger (the Parents) as

Ryder’s joint managing conservators without applying the statutory parental

presumption and determining that the Parents voluntarily relinquished care,

custody, or control of Ryder or that the Parents’ appointment as managing
conservators would significantly impair Ryder’s physical health or emotional

development. See Majority op. at 9–14. The majority departs from Texas

Supreme Court precedent and our own precedent in its holding.

The Collective Appointment of the Grandparents and the Parents as Ryder’s
                      Joint Managing Conservators

      Shelley’s argument in her second issue that the trial court abused its

discretion when it appointed the Grandparents as Ryder’s joint managing

conservators along with the Parents in that same role presupposes that the

Grandparents were required to overcome the statutory parental presumption to

gain the appointment. That supposition (and the majority’s holding that follows

the supposition) is erroneous.

      Sections 153.131 and 153.373 of the family code establish that to

overcome the presumption that a parent must be appointed as a managing

conservator of a child, a court must find that (1) appointment of the parent

would significantly impair the child’s physical health or emotional development,

(2) the parent has exhibited a history of family violence, or (3) the parent

voluntarily relinquished care, control, and possession of the child to a nonparent

for a year or more. Tex. Fam. Code Ann. §§ 153.131, .373 (Vernon 2008);

see In re N.J.G., 980 S.W.2d 764, 766 n.1 (Tex. App.—San Antonio 1998, no

pet.) (citing sections 153.131 and 153.373 in a discussion of the parental



                                        2
presumption). But these findings are not required when both parents are named

managing conservators.

      Section 153.372 authorizes a trial court to appoint parents and

nonparents together as joint managing conservators. Tex. Fam. Code Ann.

§ 153.372(a) (Vernon 2008). And Texas Supreme Court precedent holds that

the mere appointment of grandparents as joint managing conservators alongside

parents in that same role does not require a trial court to apply the parental

presumption to exclude the grandparents; rather, the trial court may make such

an appointment if it deems the appointment to be in the best interest of the

child. Brook v. Brook, 881 S.W.2d 297, 299–300 (Tex. 1994).

      In Brook, the court reviewed the collective appointment of the mother and

the mother’s parents as joint managing conservators to the exclusion of the

father and unanimously reasoned that the statutory parental presumption

“contemplates a situation in which neither of the parents are awarded”

managing conservatorship.     Id. at 298–99.    The court explained that the

parental presumption applies “only to those situations in which a nonparent

seeks custody in lieu of a natural parent.”    Id. at 299 (emphasis added).

Finally, the court noted that “[t]he purpose of the statute, to codify the

preference for giving custody to a parent, has been met in the present case.

The fact that a nonparent shares custody does not detract from the fact that

                                      3
one of the child’s parents does have custody.” Id. at 300. We have expressly

held the same. Connors v. Connors, 796 S.W.2d 233, 239 (Tex. App.—Fort

Worth 1990, writ denied) (holding that the presumption “does not preclude the

appointment of a parent to serve jointly with a non-parent” and that it applies

only if “appointment is to be denied to both parents”).

      While Brook cited a previous version of the family code, the language

analyzed in the decision is almost exactly the same as the language that now

appears in subsection (a) of section 153.131.1 Brook, 881 S.W.2d at 298–99.



      1
          … Subsection (a) of section 153.131 currently 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.

Tex. Fam. Code Ann. § 153.131(a). At the time of the Brook decision, the
former section of the family code relating to the presumption stated,

            A parent shall be appointed sole managing conservator or
      both parents shall be appointed as joint managing conservators of
      the child unless:

               1) 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.

Act of May 28, 1989, 71st Leg., R.S., ch. 370, § 1, sec. 14.01(b)(1), 1989

                                         4
The only addition to the presumption statute that amounts to anything beyond

rearranging words is subsection (b) of section 153.131, which states that 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.”

      The majority solely relies on subsection (b) as having precedent-overruling

importance. See Majority op. at 10–13. But while it is possible (although not

supported by any specific authority or legislative history in the majority’s

opinion beyond the statutory amendment itself) that subsection (b) could have

modified Brook to the extent that the presumption applies unless both parents

(rather than a single parent, like in Brook) are named joint managing

conservators, that possible modification would have no effect on Brook’s

relation to this case because here the trial court did name both of the Parents

as joint managing conservators, and thus completely complied with subsection

(b). Thus, for section 153.131(b) to achieve the precedent-altering result that




Tex. Gen. Laws 1461, 1461, repealed by Act of April 6, 1995, 74th Leg., R.S.,
ch. 20, § 2, 1995 Tex. Gen. Laws 282, 282; see Brook, 881 S.W.2d at 298.
In essence, the legislature amended the family code to switch the order of the
words existing in both provisions; it moved the words “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” from behind to in front of the words “[a]
parent shall be appointed sole managing conservator or both parents shall be
appointed as joint managing conservators of the child.”

                                       5
the majority holds it does under the facts of this case, it would need to go

beyond stating that “[i]t 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” to say something similar to “it is a rebuttable presumption that the

appointment of parents of a child as joint managing conservators to the

exclusion of all other parties seeking custody is in the best interest of the

child.” It does not do so.2

      It is “fundamental to the very structure of our appellate system that [the

Texas Supreme Court’s] decisions be binding on the lower courts.” Dallas Area

Rapid Transit v. Amalgamated Transit Union Local No. 1338, 273 S.W.3d 659,

666 (Tex. 2008), cert. denied, 129 S. Ct. 2767 (2009); see Lubbock County

v. Trammel’s Lubbock Bail Bonds, 80 S.W.3d 580, 585 (Tex. 2002) (explaining

that it “is not the function of a court of appeals to abrogate or modify

established precedent”). Under the established precedent of the supreme court




      2
       … The majority states, “There is no language in section 153.131 that
indicates that the presumption is inapplicable to the appointment of non-parents
as joint managing conservators when the trial court also appoints one or both
parents.” Majority op. at 12. But there was likewise no such language in the
version of the statute analyzed in Brook. Brook, 881 S.W.2d at 298–99. The
majority also argues that the Brook and Connors opinions regarded “a former
statute that did not contain a parental presumption requiring that both parents
be appointed joint managing conservators unless rebutted.” Majority op. at
12–13. But again, that change to the former statute is irrelevant to this case
because the trial court did appoint both Parents as joint managing conservators.

                                       6
in Brook and of our own court in Connors, the Grandparents did not have to

overcome the parental presumption for their appointment as joint managing

conservators, and I would hold that their appointment as such is in Ryder’s best

interest under the factors listed in Holley v. Adams. 544 S.W.2d 367, 372

(Tex. 1976).      Thus, I would affirm the trial court’s conservatorship

appointment, and I dissent to the portion of the majority’s opinion reversing the

appointment.

                              Primary Possession

      Although Brook’s application supports affirming the Grandparents’

appointment as managing conservators along with the Parents, it does not

extend to their award of Ryder’s primary possession, as challenged by Shelley.

Section 153.134(b)(1) of the family code states that in rendering an order

appointing joint managing conservators, a court shall designate which

conservator has the exclusive right to determine the primary residence of the

child. Tex. Fam. Code Ann. § 153.134(b)(1) (Vernon 2008).

      In Sotelo v. Gonzales, the El Paso Court of Appeals decided that in an

original custody determination, the parental presumption “applies when a

non-parent and parent are appointed joint managing conservators of a child but

the non-parent is given primary custody.”       170 S.W.3d 783, 788 (Tex.

App.—El Paso 2005, no pet.) (citing In re De La Pena, 999 S.W.2d 521,

534–35 (Tex. App.—El Paso 1999, no pet.)). The court reasoned that to “hold

                                       7
otherwise would permit the court to apply the presumption in appointing the

parent a joint managing conservator but nevertheless choose the primary

residence of the child on the basis of a heads-up best interest test, with the

court determining which of the parties is the ‘better’ choice.” Id. This would,

according to the El Paso Court, result in the “appointment of a parent as a

managing conservator in name only, a paper title which eviscerates the purpose

of the statute.” De La Pena, 999 S.W.2d at 535.

      In contrast, the San Antonio Court of Appeals held in Gardner v. Gardner

that the parental presumption does not apply to the issue of primary possession

between parent and nonparent joint managing conservators. 229 S.W.3d 747,

752 (Tex. App.—San Antonio 2007, no pet.). In Gardner, the parties agreed

to joint managing conservatorship of the children at issue, and the only

remaining custody issue was which joint managing conservator was going to

be awarded the right to determine the primary residence.          Id.   The court

reasoned that because the “plain words of [section 153.131] do not address

or contemplate application of the [parental] presumption to the issue of primary

possession, [it] would have to rewrite the statute in order to reach the result in

De La Pena.” Id.

      I agree with and would adopt the El Paso Court’s position, applying the

same reasoning as expressed in Sotelo and De La Pena. In De La Pena, the



                                        8
child’s aunt sought managing conservatorship to the exclusion of both parents

in that same role. De La Pena, 999 S.W.2d at 524–25. Because she sought

complete exclusion of the parents, the El Paso Court properly applied the

statutory presumption (as interpreted by Brook) that “the best interest of a child

is served if a natural parent is appointed as a managing conservator.” Id. at

527. Then, in applying the presumption to the primary possession issue, the

El Paso Court held and explained that

      as between a parent and nonparent, unless the court finds that
      appointment of the parent would not be in the best interest of the
      child because it would significantly impair the child’s physical
      health or emotional development, the parent shall be appointed sole
      managing conservator or the parent and nonparent shall be
      appointed joint managing conservators. If the court chooses the
      latter, the parent shall be awarded primary possession unless such
      an order would not be in the best interest of the child because it
      would significantly impair the child’s physical health or emotional
      development.[3 ]

Id. at 534–35 (emphasis added).

      Our precedent establishes that the basis of the “deeply embedded”

statutory parental presumption is to protect the “natural affection usually

flowing between parent and child.” In re M.N.G., 113 S.W.3d 27, 35 (Tex.

App.—Fort Worth 2003, no pet.).             Also, a parent’s rights to “the


      3
         … This language signals the El Paso Court’s opinion that where a court
does not find significant impairment under the parental presumption,
appointment of parents alongside nonparents as joint managing conservators
is still proper because in such a situation, the parents have not been excluded
from managing conservatorship. Id.; see Brook, 881 S.W.2d at 299–300.

                                        9
companionship, care, custody, and management” of his or her children are

constitutional   interests   “far   more    precious   than   any   property   right.”

Santosky v. Kramer, 455 U.S. 745, 758–59, 102 S. Ct. 1388, 1397 (1982).

Implicit in these rights is the right to decide where one’s child is to reside.

      The majority says that applying the parental presumption to which joint

managing conservator has the right to determine a child’s primary residence

would require us to “legislate from the bench.” 4 Majority op. at 14. But the

family code supports the application of the presumption even when nonparents

are   designated   as   joint   managing    conservators      without   applying   the

presumption under circumstances like those in Brook. As the El Paso Court

explained, “Section 153.372(b) [of the family code] provides that the

procedural and substantive standards regarding a court-ordered joint managing

conservatorship provided by Subchapter C of the Family Code apply to a

nonparent joint managing conservator. The very first section of Subchapter C

contains the parental presumption.” De La Pena, 999 S.W.2d at 534; see Tex.

Fam. Code Ann. § 153.372(b) (Vernon 2008).




      4
        … The majority uses the “legislate from the bench” pejorative phrase in
an attempt to show why it would not apply the parental presumption to the
right to determine Ryder’s primary residence, but it does not explain why that
same phrase would not apply to its own expansive interpretation of section
153.131 when that section applies to the appointment of both parents as a
child’s managing conservators.

                                           10
      Other sections of the family code also support presuming that parents

should maintain the right to designate a child’s primary residence, which, as our

supreme     court   has   explained,    is    a   crucial   component   of   managing

conservatorship. See Phillips v. Beaber, 995 S.W.2d 655, 660–61 (Tex. 1999)

(equating the right of primary possession with “custody” and adding that

primary possession and establishing a child’s residence are “core rights of

managing conservatorship”); see also Troxel v. Granville, 530 U.S. 57, 65, 120

S. Ct. 2054, 2060 (2000) (explaining that “the interest of parents in the care,

custody, and control of their children . . . is perhaps the oldest of the

fundamental liberty interests”).       For instance, the very first section of the

conservatorship chapter of the family code relates that the state’s public policy

is to “assure that children will have frequent and continuing contact with

parents.”   Tex. Fam. Code Ann. § 153.001(a)(1) (Vernon 2008).                Another

section of the code states that “[i]t is the policy of this state to . . . optimize

the development of a close and continuing relationship between each parent

and child.” Id. § 153.251(b) (Vernon 2008).

      I would hold that erasing the parental presumption in an original suit on

custody when a court appoints multiple parties as managing conservators but

gives primary possession to a nonparent would weaken these constitutional and

statutory interests and would create an unintended result by placing the parent



                                             11
and nonparent on equal ground for the trial court’s real custody determination.

Thus, because I agree with the majority that the evidence in this case is

insufficient to support the trial court’s finding that the Grandparents rebutted

the parental presumption, I would reverse the provisions of the trial court’s

order pertaining to the Grandparents’ right to determine Ryder’s primary

residence and remand this case for further proceedings related to those

provisions. I would also sustain Roger’s sole issue and reverse the portion of

the order limiting Roger’s access to and possession of Ryder because as all

parties have agreed, there is no evidence in the record supporting that

limitation.

                                  Conclusion

      For these reasons, I respectfully dissent to the portion of the majority’s

opinion and judgment reversing the trial court’s appointment of the

Grandparents and Parents together as Ryder’s joint managing conservators, but

I concur with the majority’s remand of the case for further proceedings.




                                           TERRIE LIVINGSTON
                                           JUSTICE


DELIVERED: September 17, 2009




                                      12
