Appeal from the 326thDistrict Court Taylor County, Texas
Trial Court Cause No. 08921-CX
consists of: Bailey, C.J., Stretcher, J., and Wright, S.C.J.
appeal stems from an order entered in a suit affecting the
parent-child relationship. The suit was filed by the
Department of Family and Protective Services. The trial court
held a bench trial and entered an order in which it (1)
appointed the intervenors, who were fictive kin in this case,
as the sole managing conservators of the child, J.F.; (2)
removed the Department as a conservator; (3) appointed the
child's mother as a possessory conservator; (4) declined
to appoint the child's father as any type of conservator
of the child; (5) ruled that the father shall have no
possession of or access to the child; and (6) ordered the
mother and the father to pay child support to the
intervenors. The trial court did not terminate the parental
rights of the father, but it found that appointing the father
as a conservator "at this time . . . is not in the best
interest of the child" and that granting
"possession of or access to the child . . . would
endanger the physical or emotional welfare of the
child." The child's father filed a notice of appeal.
sole issue on appeal, Appellant asserts that the trial court
abused its discretion in failing to appoint him as a
possessory conservator with restricted access. Appellant
contends that the evidence is legally and factually
insufficient to overcome the statutory presumption that his
appointment as a possessory conservator with access to the
child is in the child's best interest.
statutory presumption to which Appellant refers is found in
Section 153.191 of the Texas Family Code. Under that section,
a trial court "shall appoint as a possessory conservator
a parent who is not appointed as a sole or joint managing
conservator" unless the trial court finds that the
appointment is not in the best interest of the child and that
the parent's possession of or access to the child
"would endanger the physical or emotional welfare of the
child." Tex. Fam. Code Ann. § 153.191 (West 2014).
The terms of an order by which a trial court denies
possession or imposes restrictions on a parent's right to
possession or access "may not exceed those that are
required to protect the best interest of the child."
Id. § 153.193.
best interest of the child is always the primary
consideration of the court in determining the issues of
conservatorship, possession, and access with respect to a
child. Id. § 153.002. A trial court is given
wide latitude in determining the best interest of a child,
and the trial court's determination in this regard is
reviewed under an abuse-of-discretion standard. Gillespie
v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
"Conservatorship determinations . . . are subject to
review only for abuse of discretion, and may be reversed only
if the decision is arbitrary and unreasonable." In
re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing
Gillespie, 644 S.W.2d at 451).
when addressing an appellate issue challenging a trial
court's determination of conservatorship, we do not treat
legal and factual sufficiency challenges as independent
grounds of error but, rather, as factors used to determine
whether the trial court abused its discretion. In re
J.J.G., 540 S.W.3d 44, 55 (Tex. App.- Houston [1st
Dist.] 2017, pet. denied); Gardner v. Gardner, 229
S.W.3d 747, 751 (Tex. App.-San Antonio 2007, no pet.);
London v. London, 192 S.W.3d 6, 14 (Tex.
App.-Houston [14th Dist.] 2005, pet. denied); see
J.A.J., 243 S.W.3d at 616. We must also keep in mind
that a trial court's findings as to conservatorship must
only be supported by a preponderance of the evidence, rather
than by clear and convincing evidence. J.A.J., 243
S.W.3d at 616; see Fam. § 105.005 (West 2019).
time of the trial in this case, J.F. was almost eight years
old. He had lived with his mother until she and her boyfriend
were pulled over and found to be in possession of drugs. J.F.
was later placed with Appellant. The Department subsequently
removed J.F. from Appellant's care in November 2017.
After removal, Appellant did not comply with the trial
court's orders, which included submitting to a drug test
and completing a substance abuse assessment, and did none of
mother testified that, if J.F. were returned to her, she
would not let Appellant visit J.F. until Appellant could
prove to her that he had a place to live and was "clean
from drugs." The mother also testified that Appellant
was "so not stable" and that he had no place to
live and no job. The mother indicated that she would not keep
J.F. from Appellant forever-just until she had some type of
assurance that it was safe for J.F. to be around Appellant.
The mother also testified that, as of the time of trial, she
believed that Appellant's parental rights should be
conservatorship caseworker testified that Appellant did not
comply with the services that were ordered during the Family
Based Safety Services case and that the Department removed
J.F. from Appellant's care after receiving the results of
Appellant's and J.F.'s court-ordered drug tests.
Based upon the results of the hair follicle testing on
November 1, 2017, the Department was concerned about
"drug use and drug exposure," and the trial court
named the Department as temporary managing conservator on
November 3, 2017. Both Appellant and J.F.'s mother had a
history of drug use and instability.
indicated at trial that J.F.'s exposure to
methamphetamine was attributable to J.F.'s mother, not to
Appellant. However, other evidence in the record belies
Appellant's suggestion that the mother was to blame for
J.F.'s exposure to drugs with respect to the November 1,
2017 drug test. The mother was arrested in June 2017 on a
motion to revoke. A certified copy of the judgment
adjudicating the mother's guilt for the state jail felony
offense of possession of methamphetamine, an offense which
the mother had committed in 2014, was admitted as an exhibit
at trial. That judgment reflects that the mother was in jail
from June 17, 2017, through November 29, 2017-the date of
sentencing. The mother did not see J.F. while she was in
J.F. was removed from Appellant's care, he was placed
with the intervenors-where his younger half-sister had also
been placed. J.F.'s life prior to removal was "very
chaotic." J.F. had behavioral issues, trust issues, and
a problem with defecating on himself. He was doing poorly in
school, had trouble sleeping, and had "very extreme
behaviors, very extreme anger outbursts." J.F.'s
problems improved tremendously after he was removed from his
parents and placed with the intervenors. J.F. is happy with
the intervenors, and he never asks to visit Appellant.
trial, Appellant testified that he thought J.F. should be
returned to the mother. Appellant requested that he be
awarded possessory ...