in the Interest of K.R.B., a Child

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH

NO. 02-10-00021-CV

IN THE INTEREST OF
K.R.B., A CHILD

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FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY

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MEMORANDUM OPINION1
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I. INTRODUCTION

In two issues, Appellant Amanda G. appeals the trial court’s order

appointing her and Appellees Laura P. and Hubert P. joint managing

conservators of K.R.B., with Appellees having the exclusive right to designate

K.R.B.’s primary residence. We will reverse and remand.

1
See Tex. R. App. P. 47.4.
 II. BACKGROUND

Three-year-old K.R.B. was born on September 14, 2006. Amanda is

K.R.B.’s mother. Joshua B. is K.R.B.’s presumed father. According to

Appellees’ original petition, Laura is K.R.B.’s great aunt and Hubert is K.R.B.’s

great uncle.

Amanda started using drugs sometime in late 2005 or 2006 (before she

became pregnant with K.R.B) and continued using drugs for a period of time after

K.R.B. was born. CPS intervened in K.R.B.’s care at some point in May 2007;

Amanda had tested positive for methamphetamine and later agreed to a child

safety and evaluation plan with Appellees pursuant to which Appellees took

possession of K.R.B. in June 2007. According to Laura, the expectation was that

Appellees would care for K.R.B. while Amanda ―[got] her act together.‖ But in

December 2007, after Amanda had been arrested again, Appellees filed an

original petition seeking to be appointed sole managing conservators of K.R.B.

and requesting temporary orders.2 Appellees supplemented the original petition

with allegations that K.R.B.’s physical health or emotional development would be

significantly impaired if a parent were named a managing conservator and that

they should be appointed possessory conservators with reasonable possession

and access to K.R.B. if they were not named sole managing conservators of

2
CPS had closed its case on K.R.B. in late July 2007, but K.R.B. remained
with Appellees.

2
K.R.B. or joint managing conservators of K.R.B. with the right to establish his

primary residence.

Joshua signed a ―Father’s Affidavit for Voluntary Relinquishment of

Parental Rights‖ in which he stated that he is K.R.B.’s father and that he ―freely

and voluntarily give[s] and relinquish[es] to [Appellees] all [his] parental rights

and duties.‖ Joshua also signed a waiver of service, in which he acknowledged

receipt of the original petition and, among other things, waived his appearance at

a temporary orders hearing set for August 28, 2008, and ―approve[d]‖ the

appointment of Appellees as the managing conservators of K.R.B., believing it to

be in K.R.B.’s best interest.3

The trial court entered temporary orders in September 2008. It appointed

Appellees and Amanda temporary joint managing conservators of K.R.B., with

Appellees having the exclusive right to designate K.R.B.’s primary residence.

The temporary orders also set out Amanda’s visitation schedule with K.R.B.,

which required supervised visits that eventually phased into a visitation schedule

that is consistent with the standard possession order; permitted Appellees to

request that Amanda submit to one hair follicle test every thirty days; ordered

Amanda to pay Appellees monthly child support; prohibited smoking in the

3
The temporary orders stated that Joshua waived issuance and service of
citation by waiver and did not appear. At final trial, Amanda testified that there is
a possibility that Joshua, who was in prison at the time, is not K.R.B.’s father, but
she acknowledged that the trial did not concern the question of Joshua’s
parentage.

3
presence of K.R.B. or in the house while K.R.B. is present; prohibited the

consumption of alcohol by any person within twenty-four hours of exercising or

supervising visitation of K.R.B.; prohibited ―illegal drug use at any time‖; and,

among other things, prohibited Dustin P., Amanda’s former boyfriend, from being

present during any of Amanda’s visitations.

After a bench trial, the trial court found ―by a preponderance of the

evidence that the best interests of the child would be to continue the temporary

orders into a final order.‖ Therefore, in its final order, the trial court appointed

Appellees and Amanda joint managing conservators of K.R.B., with Appellees

having the exclusive right to designate K.R.B.’s primary residence. The trial

court ordered that Amanda exercise possession of K.R.B. pursuant to the

standard possession order but required that overnight periods of possession be

supervised by Amanda’s mother or father.

Amanda filed a motion for new trial and a request for findings of fact and

conclusions of law. The trial court denied the motion for new trial and signed

findings of fact and conclusions of law, which included in relevant part the

following findings:

3. It is in the best interest of the child that [Appellees] and
[Amanda] be appointed joint managing conservators of the
child.

4. It is in the best interest of the child that [Appellees] have the
right to designate the child’s primary residence.

5. Appointing the parents, [Amanda] and [Joshua B.], as the only
joint managing conservators of the child would significantly

4
 impair the child’s physical health or emotional development
and appointing [Amanda] as a conservator with the right to
establish the child’s primary residence would significantly
impair the child’s physical health or emotional development
and would not be in the child’s best interest. Some of the
facts supporting these findings are as follows:

(a) That [Amanda] has been neglectful of the child’s medical
needs.

(b) That [Amanda] has engaged in a lifestyle involving criminal
conduct which creates an unstable and harmful environment
for herself and the child.

(c) That while on deferred adjudication probation for multiple
criminal offenses, [Amanda] has knowingly engaged in
conduct that violated the terms and conditions of those
probations. Such violations could result in her being
sentenced to the Texas Department of Corrections.

(d) That [Amanda] has put her own gratification and needs above
the child’s needs and welfare.

(e) That [Amanda] has associated with individuals who have
engaged in criminal behavior, and that such associations are
not in the best interests of, and pose a risk to, the child.

(f) That [Amanda] repeatedly engaged in conduct detrimental to
herself and the child.

(g) That the child has been raised almost exclusively by
[Appellees] since on or before June 10, 2007.

(h) That the Petitioners have been significantly involved in raising
the child since his birth.

The trial court made one conclusion of law regarding conservatorship: ―The

evidence supports a finding that the child’s physical health or emotional stability

would be significantly impaired if the parents were appointed as joint managing

conservators.‖

5
The trial court later entered an additional finding of fact:

7. Appointing [Amanda] as the sole managing conservator of the
child, [K.R.B.], would not be in the child’s best interest
because it would significantly impair the child’s physical health
and emotional development. This finding is supported by the
evidence, including the following:

(a) That [Amanda] has engaged in a [lifestyle] involving
serious criminal conduct and associating with persons
who engage in such criminal conduct which will create
an unstable and harmful environment for the child.

(b) That while on deferred adjudication probation for
multiple felony offenses, [Amanda] has knowingly
engaged in conduct that violated the terms and
conditions of those probations and her continuing to
make such choices will probably result in her being
incarcerated.

(c) That [Amanda] has put her own gratification above the
child’s needs and welfare which would probably lead to
significant impairment of the child’s physical health and
emotional development if [Amanda] were appointed as
the child’s sole managing conservator. This includes
her choices to use drugs, to drink alcohol, to get
involved with criminal male partners and to commit
criminal offenses.

(d) That [Amanda] repeatedly engaged in conduct creating
a dangerous living environment for a child, leading to
the child in this case being raised almost exclusively by
[Appellees] since on or before June 10, 2007 and which
lead to [Appellees’] substantial involvement in raising
the child, and their being the parental figures for the
child, since shortly after the child’s birth. It would
substantially impair the child’s emotional development
now to disrupt his relationship with [Appellees] by
appointing [Amanda] as his sole managing conservator.

6
 III. CONSERVATORSHIP

In her first issue, Amanda argues that the trial court abused its discretion

by naming her and Appellees joint managing conservators of K.R.B. In her

second issue, Amanda argues that the evidence is legally and factually

insufficient to establish—and that the trial court therefore abused its discretion by

finding—that appointing her as the sole managing conservator of K.R.B. or as a

joint managing conservator of K.R.B. with the right to designate K.R.B.’s primary

residence would not be in his best interest because it would significantly impair

his physical health or emotional development.

A. Standard of Review

We review a trial court’s decision regarding the conservatorship of a child

under an abuse of discretion standard. In re J.A.J., 243 S.W.3d 611, 616 (Tex.

2007); In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.—Dallas 2008, no pet.). To

determine whether a trial court abused its discretion, we must decide whether the

trial court acted without reference to any guiding rules or principles; in other

words, we must decide whether the act was arbitrary or unreasonable. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985), cert.

denied, 476 U.S. 1159 (1986). An abuse of discretion does not occur as long as

some evidence of a substantive and probative character exists to support the trial

court’s decision. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—

Houston [1st Dist.] 2007, no pet.).

7
 In an abuse of discretion review, legal and factual insufficiency are not

independent grounds for asserting error but are merely relevant factors in

assessing whether the trial court abused its discretion. In re M.P.B., 257 S.W.3d

at 811. Thus, in applying the abuse of discretion standard, an appellate court in

a family law case must apply a two-prong analysis: (1) whether the trial court

had sufficient evidence upon which to exercise its discretion; and (2) whether the

trial court erred in applying its discretion. In re M.C.F., 121 S.W.3d 891, 895

(Tex. App.—Fort Worth 2003, no pet.).

We may sustain a legal sufficiency challenge only when (1) the record

discloses a complete absence of evidence of a vital fact; (2) the court is barred

by rules of law or of evidence from giving weight to the only evidence offered to

prove a vital fact; (3) the evidence offered to prove a vital fact is no more than a

mere scintilla; or (4) the evidence establishes conclusively the opposite of a vital

fact. Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998),

cert. denied, 526 U.S. 1040 (1999); Robert W. Calvert, "No Evidence" and

"Insufficient Evidence" Points of Error, 38 Tex. L. Rev. 361, 362–63 (1960). In

determining whether there is legally sufficient evidence to support the finding

under review, we must consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a

reasonable factfinder could not. Cent. Ready Mix Concrete Co. v. Islas, 228

S.W.3d 649, 651 (Tex. 2007); City of Keller v. Wilson, 168 S.W.3d 802, 807, 827

(Tex. 2005).

8
 When reviewing an assertion that the evidence is factually insufficient to

support a finding, we set aside the finding only if, after considering and weighing

all of the evidence in the record pertinent to that finding, we determine that the

evidence supporting the finding is so weak, or so contrary to the overwhelming

weight of all the evidence, that the answer should be set aside and a new trial

ordered. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 (Tex. 1986) (op. on

reh’g); Garza v. Alviar, 395 S.W.2d 821, 823 (Tex. 1965); In re King’s Estate, 150

Tex. 662, 244 S.W.2d 660, 661 (1951).

B. Parental Presumption

The presumption that the best interest of the child is served by awarding

custody to the parent is deeply embedded in Texas law. In re V.L.K., 24 S.W.3d

338, 341 (Tex. 2000) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.

1990)). The legislature codified the presumption in chapter 153 of the family

code. Id. Section 153.131(a) provides as follows:

Subject to the prohibition in Section 153.004,[4] unless 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.

4
Section 153.004 states in relevant part that in determining
conservatorship, a court shall consider evidence of the intentional use of abusive
physical force and that a court may not ―appoint joint managing conservators if
credible evidence is presented of a history or pattern of past or present child
neglect, or physical or sexual abuse by one parent directed against the other
parent, a spouse, or a child . . . that results in the other parent becoming
pregnant with the child.‖ Tex. Fam. Code Ann. § 153.004(a), (b) (Vernon 2008).

9
Tex. Fam. Code Ann. § 153.131(a) (Vernon 2008). Thus, the nonparent can

rebut the parental presumption by showing that the appointment of the parent

would ―significantly impair the child’s physical health or emotional development.‖

Id.; see V.L.K., 24 S.W.3d at 341.

Section 153.131(a) creates a ―strong presumption‖ in favor of parental

custody and imposes a ―heavy burden‖ on a nonparent. Lewelling, 796 S.W.2d

at 167. Impairment must be proved by a preponderance of the evidence

indicating that some specific, identifiable behavior or conduct of the parent,

demonstrated by specific acts or omissions of the parent, will probably cause that

harm. Id.; Critz v. Critz, 297 S.W.3d 464, 474 (Tex. App.—Fort Worth 2009, no

pet.). This link between the parent’s conduct and harm to the child may not be

based on evidence that raises mere surmise or speculation of possible harm.

In re De La Pena, 999 S.W.2d 521, 528 (Tex. App.—El Paso 1999, no pet.); In re

M.W., 959 S.W.2d 661, 665 (Tex. App.—Tyler 1997, writ denied). The

nonparent’s heavy burden is not satisfied by merely showing that the nonparent

would be a better custodian of the child, and ―close calls‖ should be decided in

favor of the parent. Lewelling, 796 S.W.2d at 166–68.

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 on the part of the parent. De La Pena, 999 S.W.2d at 528.

When determining fitness of a parent, the material time to consider is the

present. M.W., 959 S.W.2d at 666. ―If the parent is presently a suitable person

10
to have custody, the fact that there was a time in the past when the parent would

not have been a proper person to have such custody is not controlling.‖ May v.

May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied).

Evidence of past misconduct may not by itself be sufficient to show present

unfitness. Id.

C. Appointment of Appellees and Amanda

In her first issue, Amanda contends that the trial court abused its discretion

by appointing both Appellees and her as joint managing conservators of K.R.B.

because it ―failed to give the proper weight to the parental presumption‖ in

section 153.131. She argues that the trial court did not have the option under

section 153.131 to appoint both her and Appellees joint managing conservators

of K.R.B and that the trial court did not apply the parental presumption articulated

in section 153.131 but instead applied only a best interest standard.

Section 153.372 authorizes a trial court to appoint both parents and

nonparents as joint managing conservators. Tex. Fam. Code Ann. § 153.372(a)

(Vernon 2008). Regarding the parental presumption in such a case, in Critz this

court reasoned that ―[t]here is no language in section 153.131 that indicates that

the [parental] presumption is inapplicable to the appointment of non-parents as

joint managing conservators when the trial court also appoints one or both

parents.‖ Critz, 297 S.W.3d at 471 (emphasis added). In other words, section

153.131(a) demands that the parental presumption apply when a nonparent

seeks managing conservatorship in lieu of or in addition to the parent. Id.

11
 Here, the trial court’s findings of fact track the language of section

153.131(a) and demonstrate that it applied the parental presumption to the

determination of managing conservatorship, notwithstanding that it appointed

both Amanda and Appellees as joint managing conservators of K.R.B. but found

that it is not in K.R.B.’s best interest for Amanda to be appointed sole managing

conservator or joint managing conservator along with Joshua. Amanda’s

interpretation of section 153.131(a) conflicts with the plain language of section

153.372(a). We overrule Amanda’s first issue.

D. Overcoming the Parental Presumption

In her second issue, Amanda challenges the legal and factual sufficiency

of the evidence to establish that appointing her as sole managing conservator or

as a managing conservator with the right to designate K.R.B.’s primary residence

would not be in K.R.B.’s best interest because it would significantly impair his

physical health or emotional development.5 We will examine the sufficiency of

the evidence to support the trial court’s seventh finding of fact that appointing

Amanda as sole managing conservator is not in K.R.B.’s best interest.

5
Amanda does not challenge the part of the trial court’s fifth finding of fact
that appointing both her and Joshua as the only joint managing conservators
would significantly impair K.R.B.’s physical health or emotional development.

12
 1. Evidence

a. Amanda

Amanda testified that she is twenty-three years old, that she moved in with

her mother in September 2007, and that she has been kicked out of Section 8

housing twice. She has another child, K.G., who is three months old. Kenneth

G. is K.G.’s father. Amanda started dating Kenneth in October 2008. Amanda

explained that Joshua is in prison, that she started dating Dustin in June 2007,

and that she continued to date Dustin even though she knew he had a criminal

history. Amanda did not have a boyfriend at the time of trial.

Amanda started using drugs in 2005 or 2006 and continued using drugs for

some time after K.R.B. was born. CPS removed K.R.B. from Amanda’s care in

May 2007 because she failed a hair follicle test. Thereafter, Amanda missed a

number of visits with K.R.B. and did not comply with the child safety and

evaluation plan that she had agreed to with Appellees because she was still

using drugs.

There was extensive testimony detailing Amanda’s criminal history. On or

about January 11, 2008, Amanda pleaded guilty to the offense of possession of

between four and two hundred grams of a controlled substance, namely

methamphetamine, and the trial court placed her on ten years’ deferred

adjudication probation. Officer Charles Roberts testified about the circumstances

surrounding Amanda’s arrest, which occurred on December 26, 2006. According

to Officer Roberts, he responded to a call that he described as a ―check welfare

13
of a child that was inside of an apartment that was possibly cooking

methamphetamine.‖ As he approached the apartment, Officer Roberts met

Joshua, who was coming out of the apartment. Joshua gave Officer Roberts

permission to enter the apartment, but he yelled, ―The police are here,‖ when

Officer Roberts entered the apartment. Officer Roberts observed Amanda, who

was in a back bedroom, place something on the floor. In the bedroom, he

discovered three baggies containing a substance that he believed to be

methamphetamine—one on the floor where Amanda had placed something and

two on the bed where Amanda had been seated. Officer Roberts also observed

a purse on the bed and a methamphetamine pipe protruding from it. Amanda

claimed to have owned the purse and the methamphetamine on the floor. Officer

Roberts did not testify that he discovered an infant in the apartment.

On or about January 11, 2008, Amanda pleaded guilty to the offense of

possession or transportation of certain chemicals (anhydrous ammonia) with

intent to manufacture a controlled substance, namely methamphetamine. The

trial court placed Amanda on ten years’ deferred adjudication probation. The

date of the offense was July 22, 2007. Also on or about January 11, 2008,

Amanda pleaded guilty to the offense of possession or transportation of certain

chemicals (pseudoephedrine) with intent to manufacture a controlled substance,

namely methamphetamine. The date of the offense was also July 22, 2007, and

the trial court placed Amanda on ten years’ deferred adjudication probation.

Officer Jeff Li testified that as he was responding to a call about a suspicious

14
vehicle parked near a residence, he observed the suspicious vehicle drive past

him in the other direction. He initiated a traffic stop when he saw that the vehicle

did not have any working taillights. The vehicle drove for about a block before

pulling over. The driver of the vehicle, Dustin, exited the vehicle and fled on foot;

Amanda was in the passenger seat. Officers discovered anhydrous ammonia,

pseudoephedrine pills, and lithium strips—chemical precursors for manufacturing

methamphetamine—in the vehicle. Amanda denied owning the vehicle, but a bill

of sale found in the glove box was made out to her. Officers also discovered a

switchblade in her purse and handcuffs, some ammunition, and a large dagger in

the vehicle.

On or about January 24, 2008, Amanda pleaded guilty to the offense of

prohibited substance in a correctional facility, and the trial court placed her on ten

years’ deferred adjudication probation. Deputy Donnie Cavinder testified that on

December 10, 2007, he observed Amanda place a tobacco product in a

dumpster near the jail. Amanda admitted that she had left the paraphernalia for

Dustin and that she had done so on three or four other occasions. Amanda’s

mother drove Amanda to the dumpster to make the drop, but she was not

charged with any offense.

In addition to the four felonies, Amanda testified that she had accumulated

five misdemeanors, ―quite a bit‖ for someone her age.

The trial court admitted MySpace and Facebook pages belonging to

Amanda, Kenneth, Connie (Amanda’s former best friend), and Dustin. The

15
exhibits contain a number of undated images of Amanda and others drinking and

partying. Amanda testified that some of the images were from October 2008. An

entry on Amanda’s MySpace page states, ―Amanda fucking rage last night omg

we had a total blast doing it again today hell ya.‖ Amanda admitted that one of

her conditions of probation prohibited her from consuming alcohol.

Amanda stated that some of the individuals who were at the apartment

where she was arrested on December 26, 2006, were drug users who had been

involved in the criminal justice system. She admitted that K.R.B. had been

around some of these people on a number of occasions. Amanda agreed that

the lifestyle she was leading up until being placed on probation was not a lifestyle

that a child should be subjected to and that it was dangerous for a child to be

around people who used and manufactured drugs. She agreed that it was not in

K.R.B.’s best interest when she used drugs after he was born.

Amanda did not deny that she had committed any of the criminal conduct

detailed above, but she stated that she has changed her life. According to

Amanda, she had not used illegal drugs since January 2008, when she was

placed on probation. She submitted to hair follicle tests on August 28, 2008;

December 11, 2008; February 25, 2009; and September 29, 2009; and each test

result was negative. In March 2008, Amanda completed a twenty-eight day

rehabilitation program at Serenity House in Abilene. She also completed

parenting classes while at the program. Amanda stated that she progressed

uninterrupted through the visitation schedule set out by the September 2008

16
temporary orders and that she had not missed a visit with K.R.B. since the orders

were entered. Amanda testified that she had paid child support to Appellees for

about a year6 and that she had also complied with the temporary orders by not

seeing Dustin.7

Amanda testified that she works at Michael’s as a ―front end supervisor.‖

She has worked there since April 2008, and she works twenty-five hours per

week but is hoping to begin working full time at some point. The department

manager described Amanda as a ―very hard worker,‖ ―very dependable,‖ and

―always on time.‖ The manager testified that Amanda is around money all the

time, that she trusts Amanda ―more than anybody else,‖ and that there had not

been any openings for a full-time position since Amanda began working there.

Amanda testified that she agreed to let K.R.B. live with Appellees after

CPS intervened because she knew that they could provide him with the care that

he needed. But she explained that she had always wanted K.R.B. to be returned

to her once she achieved her goals and that she felt like she deserved to have

him back.8

Amanda stated that she could live with her mother as long as she needed

and that her mother’s house would provide a safe environment for K.R.B. She

6
Amanda admitted owing Appellees $595 in child support.
7
Amanda did post a comment on Dustin’s MySpace page.
8
Amanda agreed that Appellees should have some visitation with K.R.B.

17
described her relationship with K.R.B. as ―great.‖ Amanda testified that K.R.B.

would ―cling‖ to Laura when she dropped him off for visits but said that happened

when he was not feeling well. Recently, when Laura drops off K.R.B., he ―goes

right to his room and we play.‖ Amanda stated that she and K.R.B. play together

and sing together and that K.R.B. opened up to her and calls her ―mommy.‖ At

the time of trial, Amanda and Appellees were concluding weekend visits and

were moving on to a standard visitation schedule.

b. Probation Officer

Traci Poore, Amanda’s probation officer, testified that over the course of

roughly the past twenty months before trial, Amanda had passed both of the

urinalyses that she had been asked to take and that Amanda had reported to the

probation office every month. Poore stated that she had visited Amanda’s

mother’s and father’s houses and that there had not been anything at either

house that caused her concern. Poore also testified that in her visits with

Amanda, she had never had any concern that Amanda was under the influence

of drugs. Regarding the image on the MySpace or Facebook page of Amanda

consuming alcohol, Poore testified that infraction alone would not cause

Amanda’s probation to be revoked.

c. Amanda’s Mother

Terri G., Amanda’s mother, testified that she had seen no signs that

Amanda was using drugs again and that she had seen a ―big change‖ in

Amanda. She stated,

18
 Q Now, describe Amanda back when CPS first got involved.
What kind of person was Amanda?

A We didn’t have much of a relationship. She was my daughter,
but she was on drugs. She’s made a lot of mistakes. She’s paid for
a lot of those mistakes, and she knows the mistakes that she’s
made.

And she wants to live her life different now. She’s - - I mean,
back then we couldn’t really talk. We didn’t have much of a
relationship. But right now, she’s my best friend.

....

Q Have you seen a big change in her life?

A Oh, yeah. Yeah.

Q What kind of changes have you seen in her life?

A She’s more focused on tomorrow. She’s talked about going to
school. She’s thought - - you know, she’s wanting to go on to school
to get an education. To further her education.

She’s a more caring person. A whole lot more caring. She
thinks about other people a lot of times more than she does herself.

Terri testified that Amanda could live with her ―forever,‖ that she did not allow

people in and out of her house, and that she would not allow Amanda to bring

someone to the house that could cause K.R.B. harm. She stated that K.R.B. was

not in danger when he was at her house, that no one smokes in K.R.B.’s

presence, that K.R.B. was watched closely while at the house, that it did not take

time for K.R.B to adjust to being at the house when he would come over, and that

overnight visits would be good for K.R.B.9

9
Terri testified that she did not know what was happening when she drove
Amanda to the jail and Amanda left tobacco for Dustin.
19
 d. Amanda’s Father

Like Terri, Barry G., Amanda’s father, testified that he had seen a change

in Amanda over the eighteen months before trial and that there had not been a

point during that time that he thought Amanda was under the influence of drugs.

Barry stated that Amanda was ―herself again,‖ that ―she’s got her life on track,‖

and that he believed Amanda could be a good mother. Although he was not

present when K.R.B. was dropped off or when K.R.B. left, Barry testified that he

was often around when K.R.B. visited with Amanda, that Amanda took very good

care of K.R.B., that he did not feel that K.R.B. was physically or emotionally

harmed when he was with Amanda, and that Amanda would not do anything to

harm K.R.B. Barry opined that K.R.B., whom he had formed a relationship with,

would not have a problem with overnight visits and that he would adjust to them

well.

e. Amanda’s Sister

Brittany G., Amanda’s sister, also testified that she had seen a ―big

change‖ in Amanda. She stated that she did not have a relationship with

Amanda when K.R.B. went to live with Appellees because of Amanda’s drug

problem. Now, however, Amanda was the ―big sister that [she] never had.‖

Brittany could not recall any occasions lately in which she was around Amanda

and felt like Amanda was using drugs. She testified that she did not think that

Amanda would do anything to harm K.R.B. and that K.R.B. could begin overnight

visitations with Amanda.

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 f. Laura

Laura testified that she and Hubert offered to help Amanda and Joshua

with caring for K.R.B. when he was born. Soon thereafter, Appellees watched

K.R.B. every weekend and, eventually, more often than just during the weekend.

When K.R.B. was six months old, Appellees watched K.R.B. for two weeks after

Amanda and Joshua had dropped him off with Laura’s sister and proclaimed that

they ―need[ed] some time‖; Laura suspected that Amanda and Joshua’s lifestyle

was getting out of control. Laura opined that when CPS intervened in May 2007

(K.R.B. was eight months old), she and Hubert had cared for K.R.B. for

approximately 120 days.

Appellees originally agreed with Amanda that they would care for K.R.B.

while Amanda ―[got] her act together,‖ but they filed this suit after Amanda was

arrested for smuggling tobacco into the jail. Laura stated that she and Hubert

had serious concerns for K.R.B.’s well-being after that incident, which they

agreed was the ―last straw.‖

Laura testified that she had concerns about K.R.B. being under Amanda’s

care. One concern regarded Amanda’s former drug use and the people that

Amanda used to associate with, including the three men Amanda used to date—

Joshua, Dustin, and Kenneth. In light of the exhibits containing the MySpace and

Facebook images, Laura stated that her greatest concern was if Amanda was

continuing to associate with the same people she was around when she used

illegal drugs. Laura clarified in the following exchange with the trial court that she

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did not think that K.R.B. was in any danger of physical harm or abuse from

Amanda or her family; rather, she was worried about the people that Amanda

chose to associate with:

THE COURT: [Laura], I’ve got just maybe one or two questions.
With regards to Mr. and Mrs. G[], the grandparents - -

....

THE COURT: - - do you - - is it your opinion that the child is safe
when he’s in - - when he’s visiting with them, with them present? Is
he placed in harm’s way in any way?

[Laura]: I would hope not. I’d like to think not.

THE COURT: Well, I’m - - I’m asking your opinion.

[Laura]: In my opinion, the environments just are not conducive.

THE COURT: Okay.

[Laura]: They came into the picture when he was 10 months old.

THE COURT: Well, I understand that. I’m asking: Is he in danger
of any kind of physical harm or abuse - -

[Laura]: From them? No. From the people that Amanda keeps,
that’s who we worry about. From her family, no.

Laura also expressed concern about disrupting K.R.B.’s stability. She

testified that she and Hubert had raised K.R.B. for over two years, that K.R.B.

had bonded with them, that K.R.B. was not ready for change, that K.R.B. was not

ready for overnight visits, and that there was no need to ―emotionally scar[]‖ him.

Laura claimed that K.R.B. viewed Appellees as his parents and that his ―stable

atmosphere‖ was with them. In support of her claim that K.R.B. did not adjust

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well to change, she testified that he had difficulty transitioning from one daycare

class to another.

Laura further testified that she was concerned about dogs inside Amanda’s

house and smoke in the house before K.R.B. came over for visits. She also

recounted that Amanda was unable on one occasion to administer K.R.B.’s

allergy medicine.

g. Hubert

Hubert’s testimony mirrored Laura’s testimony. He testified that

considering Amanda’s history, he had concerns about K.R.B.’s physical safety

and emotional stability due to the people who K.R.B. might be around when he is

with Amanda; that he did not think K.R.B. would be ready for overnight stays with

Amanda until he is older; that K.R.B. had bonded with Laura; and that he was

concerned about K.R.B.’s exposure to smoke at Amanda’s house and Amanda’s

ability to administer K.R.B.’s allergy medicine.

h. Appellees’ Friend

Karen Albus, Appellees’ friend, testified that K.R.B. had some difficulty

interacting with strangers and that she had concerns about K.R.B.’s welfare in

light of Amanda’s past.

2. Insufficient Evidence to Overcome Parental Presumption

In Lewelling, the supreme court reversed the lower court’s decision to

appoint the paternal grandparents of the child managing conservators on the

ground that naming the mother managing conservator would significantly impair

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the child’s physical health and emotional development. 796 S.W.2d at 165.

Reasoning that a nonparent must ―offer evidence of specific actions or omissions

of the parent that demonstrate an award of custody to the parent would result in

physical or emotional harm to the child,‖ the court concluded that the following

evidence was no evidence that appointing the mother as managing conservator

would significantly impair the child’s physical health or emotional development:

(1) mother was unemployed at the time of the custody hearing; (2) mother lived

in crowded conditions; (3) mother had twice been a patient at Terrell State

Hospital; (4) mother’s ex-husband had physically abused her, including when she

was pregnant; (5) mother testified that she might consider reconciling with her

ex-husband; (6) the child had resided most of his life with the grandparents; and

(7) mother did not see the child for a two-month period at one point. Id. at 165–

67, 172 (Gonzalez, J., dissenting).

In In re S.W.H., this court reversed the trial court’s judgment appointing

nonparents sole managing conservators of the child on the basis of section

153.131 impairment grounds. 72 S.W.3d 772, 777–79 (Tex. App.—Fort Worth

2002, no pet.). Evidence that the mother (1) used to have a severe drug

addiction, (2) was a recovering alcoholic and drug addict, (3) was incarcerated in

a substance abuse treatment facility for twice testing positive for drug use in

violation of her probation, and (4) had a live-in boyfriend at the time of trial who

consumed alcohol outside the house was insufficient to support the trial court’s

challenged findings. Id. at 778–79. Regarding the evidence of the mother’s drug

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use, we stated that ―none of this evidence regarding Appellant’s actions more

than four years ago demonstrates that appointing Appellant managing

conservator today would significantly impair S.W.H.’s physical health or

emotional development.‖10 Id. at 778 (emphasis added).

In this case, Appellees’ concerns about K.R.B.’s physical health and

emotional development fall into four categories: (1) Amanda’s past criminal

conduct and drug use11; (2) the crowd that Amanda used to associate with 12;

(3) K.R.B.’s emotional attachment to Appellees and his difficulty adjusting to

change13; and (4) issues regarding smoke at Amanda’s house and her ability to

administer K.R.B.’s allergy medicine. Although relevant, the evidence of

Amanda’s past criminal conduct and drug use does not demonstrate that

appointing Amanda sole managing conservator at the time of trial would have

significantly impaired K.R.B.’s physical health or emotional development. See id.

(reasoning that evidence of mother’s past severe drug addiction was not

10
Other evidence in the sufficiency analysis included that the mother had
managed to stay ―clean‖ during the one and one-half years that she lived with the
boyfriend up to the time of trial, that the child would be well cared for in the
mother’s current living situation, that a CPS caseworker did not have health or
safety concerns for the child when the caseworker first intervened on behalf of
the child, and that it was apparent that CPS intended the nonparents to return the
child to the mother once she had completed treatment and corrected her
problems. S.W.H., 72 S.W.3d at 778–79.
11
This includes the trial court’s findings of fact 7(a), (b), (c), and (d).
12
This includes the trial court’s findings of fact 7(a), (b), and (d).
13
This includes the trial court’s findings of fact 7(d).

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evidence that appointing her managing conservator would significantly impair

child); May, 829 S.W.2d at 377 (reasoning that if the parent is presently a

suitable person to have custody, that there was a time in the past when the

parent would not have been a proper person to have such custody is not

controlling). The evidence shows that since being placed on probation roughly

twenty months before trial, Amanda had passed multiple drug tests, had

complied with her probation requirements, and had given no person who testified

any indication that she had been under the influence of drugs. Amanda’s

testimony that she had not used drugs since being placed on probation was

uncontroverted.

Appellees expressed strong concern for K.R.B. regarding the crowd that

Amanda used to associate with. But there is no evidence that Amanda continued

to associate with or was currently associating with Joshua or Dustin or anyone

else who uses or used to use illegal drugs. Appellees’ concerns that Amanda

would resume associating with those persons once again at some point in the

future are based on mere speculation and surmise, which is insufficient to

support the trial court’s finding. See De La Pena, 999 S.W.2d at 528 (reasoning

that harm to the child may not be based on evidence that raises mere surmise or

speculation of possible harm).

Appellees had concerns that K.R.B. would be emotionally harmed because

he had lived much of his life with them, he had bonded with Laura, and he had

difficulty adjusting to strangers. In Lewelling, the supreme court considered

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evidence that the child had resided most of his life with the nonparents but

concluded that the evidence was insufficient to demonstrate harm. See

Lewelling, 796 S.W.2d at 167–69, 172 (Gonzalez, J., dissenting). We conclude

similarly. Appellees also did not identify a specific, identifiable behavior or

conduct of Amanda that caused or would probably cause harm to K.R.B.’s

emotional development, nor did they present expert testimony that K.R.B.’s

emotional development would be significantly impaired if Amanda is sole

managing conservator. See S.W.H., 72 S.W.3d at 778–79. That Appellees may

be better parents than Amanda is insufficient to rebut the parental presumption.

See Lewelling, 796 S.W.2d at 166.

Appellees’ concerns about Amanda’s administering medicine to K.R.B. and

smoke in the house is some evidence of harm.

In S.W.H., this court addressed the heavy burden that nonparents face in

overcoming the parental presumption:

It is an onerous burden to overcome the presumption that a child’s
natural parent should be appointed sole managing conservator
absent some specific act or omission that demonstrates present
parental unfitness. Although trial courts should be afforded broad
discretion in deciding family law questions, the legislature has
explicitly limited the exercise of that discretion when a nonparent
seeks appointment as managing conservator.

S.W.H., 72 S.W.3d at 779 (citations omitted). This case represents the type of

―close call‖ that the supreme court addressed in Lewelling.

Accordingly, viewing the entire record under the legal and factual

sufficiency standards of review articulated above, we conclude that, while there is

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some evidence that placing K.R.B. under the sole managing conservatorship of

Amanda might significantly impair K.R.B.’s physical health and emotional

development, the evidence is factually insufficient to support a finding of such

impairment. We therefore hold that the trial court abused its discretion by so

finding. We sustain this part of Amanda’s second issue.

Having sustained Amanda’s evidentiary sufficiency challenge to the trial

court’s seventh finding of fact, we do not address her challenge to the part of the

trial court’s fifth finding of fact that appointing her as a managing conservator with

the exclusive right to designate K.R.B.’s primary residence would significantly

impair K.R.B.’s physical health or emotional development. See Tex. R. App. P.

47.1; see also Critz, 297 S.W.3d at 472 (reasoning that section 153.131

―contains no language that indicates a legislative intent that a parental

presumption applies to the issue of primary custody apart from the determination

of joint managing conservatorship‖; section 153.131 ―makes no reference to a

separate presumption for determining which joint managing conservator chooses

the child’s permanent residence‖).

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 IV. CONCLUSION

Having sustained part of Amanda’s second issue, we reverse the trial

court’s order and remand the case to the trial court for a new trial.

BILL MEIER
JUSTICE

PANEL: WALKER, MCCOY, and MEIER, JJ.

DELIVERED: October 7, 2010

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