Court of Appeals of Texas, Fifth District, Dallas
IN THE INTEREST OF M.O. AND P.O., CHILDREN
Appeal from the 256th Judicial District Court Dallas County,
Texas Trial Court Cause No. DF-13-19769-Z
Justices Schenck, Osborne, and Reichek
bench trial, the trial court signed an order appointing
Mother and Father as possessory conservators of their
children M.O. and P.O. The trial court appointed a nonparent
as the children's managing conservator. Mother appeals,
contending the trial court abused its discretion in finding
that appointing her as managing conservator "would
significantly impair the children's physical health and
emotional development." Because we conclude there was
insufficient evidence to support the trial court's
finding, we reverse the trial court's order and remand
the cause for further proceedings.
2017, the Texas Department of Family and Protective Services
(the "Department") removed M.O. and P.O., then aged
3 and 2, from Mother's home after investigating a report
of neglectful supervision. As one of the "reason[s] for
Child Protective Services involvement," the Family
Service Plan created for the family in November 2017 stated
that "[Mother's] unmanaged mental health issues
poses [sic] a threat to the ongoing safety of the
children." Under "hopes and dreams for the
children," the plan stated that Mother "hopes to
receive appropriate mental health and substance abuse
treatment so she can be the best parent possible for her
children." "Service plan goals" included that
Mother "will have a psychiatric evaluation and ensure
she is medically compliant if she has already completed
one," and "will actively participate in therapy to
understand and address her own mental health needs."
Mother was ordered to "participate in a psychological
evaluation to assess her ability to take responsibility for
her children, provide a safe and nurturing environment, and
alter the pattern of behavior resulting in CPS
involvement," to "attend Individual
Counseling," to "complete a Psychiatric Evaluation
. . . in order to assess her mental health needs," and
to "follow all recommendations made" by the service
provider of the psychiatric evaluation. The trial court took
judicial notice of the family service plan at trial.
children were placed in the home of J.J., Father's
cousin. Another of Mother's children by a different
father, A.M., aged six, was also placed in J.J.'s home.
At trial, the Department requested that the court appoint
J.J. as sole managing conservator, and Mother and Father as
possessory conservators. The children had been living with
J.J. since their removal from Mother's home. Also living
in J.J.'s home and under her care are her own four
children, who range in age from five to thirteen.
in J.J.'s care, the children visited with Mother at the
home of J.J.'s mother, R.J. R.J.'s home was chosen
for the visits because R.J. and Mother live in the same
apartment complex. But J.J. testified that at the time of
trial in February 2019, Mother had not visited or seen M.O.
since the previous Mother's Day in May 2018, and had seen
P.O. only once since then. Mother testified that she disliked
visiting the children at R.J.'s home because she felt
that R.J. watched her too closely and "yelled at"
her once for "play[ing] with my kids rough." Mother
explained that "I don't play with my kids rough. I
play with them, and that's what it was."
Mother and Autumn Carter, a Department caseworker, testified
that Mother had completed all of the services the court had
ordered, including random drug screens, a drug assessment, a
psychological evaluation, individual counseling, domestic
violence counseling, and parenting classes. But Carter also
testified that Mother was not "medication
compliant" in accordance with the service providers'
was no evidence presented about the children. There was no
evidence of M.O.'s or P.O.'s physical health or
emotional development. There was no evidence of M.O.'s or
P.O.'s relationship with Mother. There was no evidence of
M.O.'s or P.O.'s relationship with J.J. or with
J.J.'s children. There was no evidence of M.O.'s or
P.O.'s physical or emotional issues or needs. There was
no evidence of how Mother's medication compliance, or
lack of it, impaired M.O.'s or P.O.'s physical health
or emotional development.
hearing testimony from J.J., Carter, Mother, Father, and the
Court Appointed Special Advocate for the children (the
"CASA advocate"), the trial court granted the
relief requested by the Department and signed an order
appointing J.J. as sole managing conservator and Mother and
Father as parent possessory conservators of M.O. and P.O.
Mother now appeals.
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." Tex. Fam. Code §
153.131(b). "[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. Code § 153.131(a). "The
strong presumption that the best interest of a child is
served by appointing a natural parent as managing conservator
is deeply imbedded in Texas law." In Interest of
J.T.S., No. 05-17-00204-CV, 2018 WL 1465535, at *3 (Tex.
App.-Dallas Mar. 26, 2018, no pet.) (mem. op.) (citing
Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.
1990), and In re B.B.M., 291 S.W.3d 463, 468 (Tex.
App.-Dallas 2009, pet. denied)).
support a finding of significant impairment, the evidence
must do more than merely raise a suspicion or speculation of
possible harm. In re B.B.M., 291 S.W.3d at 467.
Instead, the evidence must support the logical inference that
some specific, identifiable behavior or conduct of the
parent, demonstrated by specific acts or omissions, will
probably harm the child. Id.; R.H. v. D.A.,
No. 03-16-00442-CV, 2017 WL 875317, at *5 (Tex. App.-Austin
Mar. 2, 2017, pet. dism'd). This is a heavy burden that
is not satisfied by merely showing the nonparent would be a
better choice as custodian of the child. In re
B.B.M., 291 S.W.3d at 467. Acts or omissions that
constitute significant impairment include, but are not
limited to, physical abuse, severe neglect, abandonment, drug
or alcohol abuse, or immoral behavior by the parent.
Id. at 469. A factfinder may infer the present
fitness of the parent to be managing conservator from the
parent's recent, deliberate past misconduct.
R.H., 2017 WL 875317, at *5. But evidence of past
misconduct, standing alone, may not be sufficient to show
present unfitness. Id. "When a nonparent and a
parent are both seeking managing conservatorship, the
'close calls' go to the parent." In re
B.B.M., 291 S.W.3d at 469; see also Interest of
F.E.N., No. 18-0439, 2019 WL 2667029, at *2 (Tex. Jun.
28, 2019) (per curiam) (proof of "significant
impairment" "should include the acts or omissions
of the parent demonstrating that result") (citing
Lewelling, 796 S.W.2d at 167).
alleges that the trial court abused its discretion in finding
that appointing her as managing conservator would
significantly impair M.O.'s and P.O.'s physical
health and emotional development. "[A] finding that
appointment of a parent as managing conservator would
significantly impair the child's physical health or
emotional development is governed by a
preponderance-of-the-evidence standard." In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). The heightened
standards of proof and review for termination decisions do
not apply. Id. Instead, conservatorship
determinations "are subject to review only for abuse of
discretion, and may be reversed only if the decision is
arbitrary and unreasonable." Id.; see also
In Interest of L.W., No. 02-16-00091-CV, 2016 WL
3960600, at *1 (Tex. App.-Fort Worth Jul. 21, 2016, no pet.)
(mem. op.) ("A trial court abuses its discretion if the
court acts without reference to any guiding rules or
principles, that is, if the act is arbitrary or
and factual sufficiency are not independent grounds of error
in conservatorship cases but are relevant factors in
determining whether an abuse of discretion occurred.
Id. at *2. To determine whether the trial court
abused its discretion because the evidence was insufficient
to support its decision, we consider whether (1) the trial
court had sufficient evidence upon which to exercise its
discretion and (2) erred in its exercise of that discretion.
Id. We conduct the applicable sufficiency review
with regard to the first question. Id. We then
determine whether, based on the elicited evidence, the trial
court made a reasonable decision. Id. The trial
court is the sole judge of the credibility of the witnesses
and the weight to be given their testimony. In re
M.A.M., 346 S.W.3d 10, 14 (Tex. App.-Dallas 2011, pet.
natural parent has a fundamental liberty interest in the
care, custody, and management of her child. In re
B.B.M., 291 S.W.3d at 468 (citing Santosky v.
Kramer, 455 U.S. 745, 753 (1982)). This right cannot be
infringed absent evidence that such care, custody, and
management by the natural parent would result in physical or
emotional harm to the child. Id. (citing
Lewelling, 796 S.W.2d at 167). Although the
Department did not seek to terminate Mother's parental
rights, and consequently was not required to meet the
"clear and convincing evidence" standard of proof
applicable to terminations, it was required to offer evidence
to "support the logical inference that some specific,
identifiable behavior or conduct of [Mother] will probably
harm" M.O. and P.O. Id. at 467.
conclude that the evidence presented at trial, detailed
below, was insufficient to overcome "[t]he strong
presumption that the best interest of a child is served by
appointing a natural parent as managing conservator."
See In re B.B.M., 291 S.W.3d at 467. There was no
evidence that Mother's "specific, identifiable
behavior or conduct," "demonstrated by specific
acts or omissions," will probably harm M.O. or P.O.
See id. At most, the evidence "merely raise[d]
a suspicion or speculation of possible harm." See
id. Consequently, the trial court lacked sufficient
evidence on which to exercise its discretion. In Interest
of L.W., 2016 WL 3960600, at *2.
trial, the Department cited its "concerns about
Mother's mental health and whether or not she's still
getting the necessary help that she still needs" and
Mother's failure to visit M.O. and P.O. as grounds for
seeking appointment of J.J. as sole managing conservator. The
Department, joined by the guardian ad litem, also requested
continuation of supervised ...