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In re M.F.M.

Court of Appeals of Texas, Seventh District, Amarillo

November 14, 2017

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

         On Appeal from the 222nd District Court Deaf Smith County, Texas Trial Court No. DR-14L-171, Honorable Roland D. Saul, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          PER CURIAM

         Appellant, the father of M.F.M.[1] appeals from the trial court's order in a suit affecting the parent-child relationship. We will reverse the order of the trial court and remand it for further proceedings consistent with our opinion.

         Background

         M.F.M. was born to the unmarried mother and father in 2008. At the time of the final hearing, M.F.M. was almost eight years old. M.F.M. lived with her mother and maternal grandmother for most of her life.[2] M.F.M.'s mother died in September 2013. M.F.M. continued to live with her grandmother after her mother's death. Her father visited occasionally.[3]

         In August 2014, the father filed his original petition in suit affecting the parent-child relationship, seeking sole managing conservatorship of M.F.M. After a hearing in January 2015, the trial court signed temporary orders, granting the grandmother and the father temporary joint managing conservatorship of M.F.M. and giving the grandmother the exclusive right to designate the child's residence. The court also ordered the father to pay monthly child support of $500.[4] In her counter-petition, the grandmother asked the court to appoint her the sole managing conservator of M.F.M., asserting that appointment was in the child's best interest. The father requested that he be appointed sole managing conservator because he is the remaining biological parent.

         At the conclusion of the hearing, the court appointed the grandmother and the father as joint managing conservators, giving the grandmother the exclusive right to designate the child's residence, and found such placement was in the child's best interest. The court stated, "I do think that taking the child from the grandmother and forcing her to go with a father, whom she barely knows, would be detrimental to the child. The father should have standard visitation." This appeal followed.

         Analysis

         The father challenges the trial court's order through three issues. We will begin with the father's second issue wherein he contends the trial court abused its discretion by appointing the grandmother, a nonparent, as joint managing conservator without addressing the parental presumption.

         Standard of Review

         We review the trial court's determination of conservatorship under an abuse of discretion standard. In the Interest of De La Pena, 999 S.W.2d 521, 526 (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)). We will reverse a trial court's conservatorship determination only if the decision is arbitrary and unreasonable. In re J.J.G., No. 01-16-00104-CV, 2017 Tex.App. LEXIS 7729, at *24 (Tex. App.-Houston [1st Dist.] Aug. 15, 2017, no pet.) (mem. op.) (citing In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)).

         An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.). See also In re Marriage of Vick, No. 07-15-00019-CV, 2016 Tex.App. LEXIS 11975, at *3 (Tex. App.-Amarillo Nov. 3, 2016, no pet.) (mem. op.) (reversing portion of judgment setting child-support obligation of wife). In determining whether the trial court abused its discretion, we consider whether the trial court had sufficient evidence upon which to exercise its discretion and, if so, whether it erred in the exercise of that discretion. In the Interest of C.G., No. 04-13-00749-CV, 2014 Tex.App. LEXIS 8826, at *12 (Tex. App.-San Antonio Aug. 13, 2014, no pet.) (mem. op., citations omitted) (citing In re P.M.G., 405 S.W.3d 406, 410 (Tex. App.-Texarkana 2013, no pet.)). "A trial court has no discretion to determine what the law is or in applying the law to the facts and, consequently, the trial court's failure to analyze or apply the law correctly is an abuse of discretion." In the Interest of B.F., No. 07-16-00282-CV, 2017 Tex.App. LEXIS 2712, at *9 (Tex. App.-Amarillo Mar. 29, 2017, no pet.) (mem. op.) (citing In re American Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001) (orig. proceeding)).

         When, as in this case, no findings of fact or conclusions of law are filed, "we imply all necessary findings to support the trial court's judgment." In the Interest of C.G., 2014 Tex.App. LEXIS 8826, at *11 (citing Holt Atherton Indus., Inc. v. Heine, 835 S.W.2d 80, 83 (Tex. 1992); In re B.N.B.,246 S.W.3d 403, 406 (Tex. App.-Dallas 2008, no pet.)). If a reporter's record is included in the record on appeal, the implied findings may be challenged for legal and factual sufficiency. Id. (citations omitted). "Legal and factual insufficiency are not independent grounds for asserting error; they are merely relevant factors in assessing whether a trial court abused its discretion." Id. (citations omitted). In a legal sufficiency review, "we view the evidence in the light favorable to the verdict, crediting favorable evidence if reasonable jurors could and disregarding contrary evidence unless reasonable jurors could not." Id. at *12 (citing City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005)). In a factual sufficiency review, "we view the evidence in a ...


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