Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 84th District Court Ochiltree County, Texas
Trial Court No. 14, 634; Honorable Curt W. Brancheau,
PIRTLE, PARKER, and DOSS, JJ.
Patrick A. Pirtle Justice.
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. 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
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.
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.
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.
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
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
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.
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.)
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