Court of Appeals of Texas, Fourth District, San Antonio
the 408th Judicial District Court, Bexar County, Texas Trial
Court No. 2018-PA-00671 Honorable Laura Salinas, Judge
Sitting: Rebeca C. Martinez, Justice Irene Rios, Justice Liza
A. Rodriguez, Justice.
A. Rodriguez, Justice.
Father R.T. appeals the trial court's final order
designating him as only a possessory conservator rather than
a managing conservator of his daughter G.E.T. and requiring
supervised visitation. Based on the lack of evidence to rebut
the statutory parental presumption, we reverse the trial
court's order and remand for further proceedings in the
child that is the subject of this case, G.E.T., was born in
April 2016. The relationship between her mother D.B. and her
father R.T. ended in August 2017. In October 2017, the
Department of Family and Protective Services began offering
Family Based Safety Services to G.E.T.'s parents based on
concerns about drug use and domestic violence. In April 2018,
the Department petitioned for removal of G.E.T., then two
years old, based on concerns related to the mother's drug
use, current boyfriend M.G., and allegations of physical
abuse against his daughter. After G.E.T. was removed, the
Department was designated as temporary managing conservator
and G.E.T. was placed with D.T., the ex-wife of R.T. with
whom he had two teenage daughters. G.E.T. made good
developmental progress and bonded with D.T. and her daughters
during the year she lived with them. During the pendency of
the case, the maternal grandmother E.C. filed a petition in
intervention seeking managing conservatorship of G.E.T. or,
alternatively, possessory conservatorship. D.T. also filed a
petition in intervention seeking appointment as managing
conservator with the intent to adopt G.E.T. At the time of
trial, the Department was seeking termination of the parental
rights of the mother D.B. only.
bench trial held in April 2019, the Department caseworker
Valerie Mendiola testified that R.T. fully completed every
requirement of his service plan including drug assessment and
domestic violence classes, never tested positive for drugs
during the case, and maintained appropriate and consistent
visits with G.E.T. The Department had "no concerns"
with R.T. and his parental abilities and was not seeking
termination of his parental rights. D.B., on the other hand,
failed to fully comply with her service plan, tested positive
for multiple types of drugs on several occasions, and failed
to submit to hair follicle tests on multiple other occasions.
Mendiola testified the reason for G.E.T.'s removal was
due to D.B.'s actions, not those of R.T. With respect to
the maternal grandmother E.C., the Department had initial
concerns about her suitability to care for G.E.T. based on a
negative home study as well as D.B.'s accusations of
physical abuse, neglect, and alcoholism against E.C. At the
beginning of the case, D.B. did not want E.C. to have access
to her daughter. After E.C. intervened in the case, D.B.
"changed her story" and stated she lied about the
accusations because she was mad at her mother. Mendiola
testified that D.B. consistently lied during the case, and
noted that R.T. expressed the same concerns about E.C. and
the volatile relationship between her and D.B. The
Department's recommendation at the end of trial was that
R.T. be designated as joint managing conservator of G.E.T.
along with D.T., the current foster mother.
twenty-one years old at the time, testified and admitted to
having a current substance abuse problem; in fact, she was
set to enter the SAFP program for 90 to 180 days due to a felony
probation violation. As noted, D.B. gave conflicting
testimony about her mother E.C. and the character and
stability of their relationship. D.B. moved out of E.C.'s
home when she was 13 years old and subsequently went back and
forth between her sister's home and E.C.'s home. D.B.
renewed her relationship with E.C. in October 2018, and
testified at trial that she had "exaggerated" or
lied about the problems with E.C. and wanted her to be named
managing conservator of G.E.T. As to her relationship with
R.T., D.B. testified she was 17 years old when the
relationship began and R.T. was 39 years old; he knew
D.B.'s age. D.B. stated she began using drugs in 2015 and
smoked marijuana with R.T. D.B. also claimed that R.T.
introduced her to methamphetamine and cocaine, but that he
did not use those drugs himself. D.B. testified that she
called the police several times complaining of domestic
violence by R.T.; however, she stated he was never arrested
and she did not seek a protective order. When asked specific
questions characterizing the domestic violence, D.B. agreed
that R.T. "hit her with his hand," "pulled her
hair," and "threw her to the ground." Her
relationship with R.T. ended in August 2017. D.B stated she
entered into a relationship with a new boyfriend, M.G., in
August 2017 which lasted through March 2018 when G.E.T. was
removed by the Department. D.B.'s counselor testified she
told him her relationship with M.G. ended in October 2018.
During that time period, D.B. admitted she was using heroin
intervenors, D.T. and E.C., also testified. Maternal
grandmother E.C. testified she did not support the
relationship between D.B. and R.T., referring to him as a
"predator" who caused her 17 year-old daughter to
run away from home. E.C. stated she did not welcome R.T. into
her home and he only came there two times, which was contrary
to D.B.'s testimony that she and R.T. stayed at
E.C.'s home sometimes and at one point traveled together.
E.C. stated that D.B. and R.T. were together for two years
before she learned his true age. E.C. denied being in a
currently abusive relationship, testifying that she left an
abusive marriage when D.B. was four years old, and since then
had worked full-time, provided a home for her family, and
successfully raised three other children all of whom were
successful adults with no criminal history. E.C. denied being
associated with a gang, using drugs, or excessively consuming
alcohol. E.C. herself disclosed that she was the person who
called CPS in October 2017 after she found D.B. and her
boyfriend M.G. smoking marijuana in her home with G.E.T. in
the room. E.C. stated she had been in G.E.T.'s life since
she was born and wanted to have custody of G.E.T. Of
particular concern to the child's attorney ad litem and
the Department, E.C. denied that G.E.T. was developmentally
delayed before she was placed with D.T.
testified that she and R.T. divorced when their twin
daughters were two years old. D.T. testified there was never
any physical or verbal abuse during her marriage to R.T.,
although he did have an affair which she felt was emotional
abuse. R.T. consistently stayed present in his daughters'
lives and paid child support. Their daughters were 18 years
old at the time of trial, were bonded to G.E.T., and planned
to attend college locally so they could help care for G.E.T.
D.T. testified she had no concerns about R.T.'s parental
ability with their twin daughters or with G.E.T. D.T.
admitted knowing that R.T. sometimes used marijuana during
their marriage but did not know whether he had continued to
use it after they divorced. Her relationship with
G.E.T.'s mother D.B. was initially good but degenerated
after D.B. began communicating with E.C. in October 2018.
D.T. testified that G.E.T. had bonded with her and her
daughters and she sought managing conservatorship of G.E.T.
conclusion of the evidence, child's the attorney ad litem
requested that R.T. and D.T. be designated as joint managing
conservators of G.E.T. based on the child's present and
future emotional and physical needs. The Department and
R.T.'s counsel joined in that request. Counsel for E.C.
and D.B. requested that E.C. be designated as managing
conservator of the child. The trial court's final order
appointed E.C. as sole managing conservator of G.E.T., the
parents D.B. and R.T. as possessory conservators with
visitation to be supervised by E.C. and D.T., respectively.
first issue, R.T. challenges the sufficiency of the evidence
to rebut the statutory presumption that awarding managing
conservatorship to a parent, in this case ...