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In re C.R.W.

Court of Appeals of Texas, Seventh District, Amarillo

January 14, 2020


          On Appeal from the 84th District Court Ochiltree County, Texas Trial Court No. 14, 634; Honorable Curt W. Brancheau, Presiding

          Before PIRTLE, PARKER, and DOSS, JJ.


          Patrick A. Pirtle Justice.

         Appellant, V.L.E., appeals from the trial court's Final Order in Suit Affecting the Parent-Child Relationship appointing her possessory conservator of her daughter, C.R.W., and appointing L.E., the maternal grandmother, as permanent managing conservator in a suit initiated by the Texas Department of Family and Protective Services.[1] By two issues, V.L.E. contends (1) the evidence is legally and factually insufficient to support the trial court's order given the Family Code's presumption in favor of a parent over a nonparent and (2) the trial court abused its discretion. We affirm.


         V.L.E has a history with the Department with respect to other children dating back to 2011. At the time of the underlying proceeding, which had originated as a Department intervention and a family-based case in 2017, the Department was C.R.W.'s managing conservator and C.R.W. was voluntarily placed with her maternal grandmother. At that time, V.L.E. had visitation rights with her daughter.

         V.L.E.'s boyfriend has a criminal history and a history of drug use. That fact led to an agreement between the grandmother and V.L.E., through Child Protective Services, that V.L.E would not allow her child to have contact with her boyfriend.

         On July 31, 2018, C.R.W. had visitation with her mother but the child was not returned to her grandmother's care following the visit. The next day, the assigned caseworker for the Department became aware that V.L.E. and her boyfriend had moved into an apartment and that the child was staying with them. The caseworker contacted V.L.E. and explained that if she did not return the child to the grandmother later that night, there would be legal consequences. V.L.E. refused to return the child due to alleged unclean conditions of the grandmother's home. V.L.E. desired a different placement for her daughter.

         Suspecting drug use in the presence of the child, the Department sought and obtained a court order allowing a Department representative to transport the child to a testing facility for a hair follicle drug screen. The test revealed that the child tested positive for methamphetamines. Citing concerns for C.R.W.'s safety, the Department took possession of the child on August 30, 2018, and initiated proceedings for protection, conservatorship, and termination the following day.

         A year later, at the final hearing, the caseworker testified that the Department wished for C.R.W.'s grandmother to be appointed permanent managing conservator with V.L.E. being appointed as possessory conservator. No other witnesses testified. The trial court signed an order memorializing the Department's wishes and dismissed the Department from the case.

         V.L.E. challenges the trial court's order. By two issues, she alleges the evidence is insufficient to defeat the Family Code's parental presumption and also alleges the trial court abused its discretion in entering its order.

         Applicable Law

         When determining conservatorship between a parent and a nonparent, the Family Code provides for a presumption that appointment of the parent as the sole managing conservator is in the child's best interest. Tex. Fam. Code Ann. § 153.131 (West 2014). "Evidence showing that the nonparent would be a better custodian of the child does not suffice, and close calls should be decided in favor of the parent." In re M.J.C.B., Jr. and M.C.B., No. 11-14-00140-CV, 2014 Tex.App. LEXIS 12387, at *2-3 (Tex. App.-Eastland Nov. 14, 2014, no pet.) (mem. op.) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex. 1990)). The parental presumption may be rebutted with evidence showing that appointment of the parent as managing conservator would significantly impair the child's physical or emotional development. In re H.E.B., No. 07-17-00351-CV, 2018 Tex.App. LEXIS 885, at *4 (Tex. App.-Amarillo Jan. 31, 2018, pet. denied) (mem. op.) (citation omitted).

         The best interest of the child is the primary consideration in determining the conservatorship of a child. Tex. Fam. Code Ann. § 153.002. A court may use numerous factors to determine best interest. Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976). Those factors, which are not exhaustive, include (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individual seeking custody; (5) the programs available to assist the individual to promote the best interest of the child; (6) the plans for the child by the individual or by the agency seeking custody; (7) the stability of the home or ...

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