in the Interest of V.S., a Child

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-18-00195-CV
___________________________

IN THE INTEREST OF V.S., A CHILD

On Appeal from County Court at Law No. 1
Parker County, Texas
Trial Court No. CIV17-0330

Before Gabriel, Kerr, and Birdwell, JJ.
Memorandum Opinion by Justice Kerr
 MEMORANDUM OPINION

Father and Mother appeal the trial court’s order appointing Larry and Mary

Adams, non-parent relatives, as the managing conservators of their son, V.S.1 In the

same order, the trial court appointed Father and Mother as possessory conservators.

Father and Mother raise issues arguing that the trial court abused its discretion in

finding that neither of them, separately or jointly, should be appointed as V.S.’s

managing conservators. Concluding that the evidence sufficed to support the trial

court’s findings, and thus that no abuse of discretion occurred, we affirm.

I. Background

A. Mother and her children

Mother has three children; at the time of trial, none of them was in her custody.

When Mother gave birth to V.S. in May 2016, both she and her newborn son

tested positive for methamphetamine. The Texas Department of Family and

Protective Services responded by removing V.S. and Mother’s other son, Tom.

Mother’s third child, Ann, was in her father’s (Duke’s) custody. By the time V.S.’s case

came to trial, Mother had already relinquished her parental rights to Tom.

1
To protect the privacy of the parties in this case, we identify the child by his
initials, other family members (including the related non-parent managing
conservators) by fictitious names, and the parents simply as Father and Mother. See
Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2018).

2
 B. Father and his children

Besides V.S., Father had two other children, a son and a daughter. Father’s ex-

wife was their primary caretaker. Father described his 20-year-old son as an “addict”

and said that he and his son were nothing alike, which he attributed to his son’s not

having been under Father’s care.

When Mother gave birth to V.S., Father was 80% sure that he was V.S.’s father,

but he entertained doubts because Duke had told him that Duke might in fact be

V.S.’s father. On June 1, 2016, the trial court ordered genetic testing, but Father

waited six months, until January 2017, to provide a genetic specimen. About ten

months after V.S.’s removal, Father finally learned in March 2017 that V.S. was his

child.

C. How Father and Mother responded to her pregnancy

Mother described the moment she told Father that he might be her baby’s

father as “very stressful,” and when asked if he had responded negatively, she

answered, “A little bit.” Although Mother had received prenatal care for Tom and

Ann, she admitted not having sought any while pregnant with V.S.

D. Mother’s drug history

At the time of trial in November 2017, Mother was 31 and had been using

methamphetamine sporadically since she was 17. She maintained that she was clean at

times, denied using drugs while pregnant with Tom and Ann, and asserted that she

was sometimes drug-free for long stretches, stating that after Tom’s birth she was

3
clean for six years and also for about three years after Ann’s birth. But Mother

admitted using drugs while pregnant with V.S. Father even watched her use

methamphetamine once when she was eight-and-a-half to nine months pregnant.

This case was not the first time that drugs had led the Department to become

involved in her life: in 2012 she had a case with Tom and Ann. She admitted going to

counseling in 2012, getting her FBSS2 case successfully discharged, but later relapsing.

E. Father’s drug history

Father was 41 and had used methamphetamine off and on since his middle 20s.

Like Mother, he claimed lengthy periods of sobriety from drugs, one spanning six

years and another lasting four years.

But when he got laid off from his job in 2014, his meth use “got bad,” and by

2016, “it got real bad.” Despite V.S.’s birth and removal in May 2016, Father admitted

to having been high from July 2016 through the second weekend in February 2017.

F. Father and Mother disengage after the Department removed V.S.

Department caseworker Andrew Johnson, who was on the case from May 2016

until August 2017, testified that he had contact with both Father and Mother at the

adversary hearing—the first statutorily required hearing after a child’s removal3—at

2
Family-based safety services. See Tex. Fam. Code Ann. § 264.202 (West 2014)
(addressing services for less serious cases); In re A.W., No. 02-18-00147-CV, 2018 WL
5074770, at *1 (Tex. App.—Fort Worth Oct. 18, 2018, no pet. h.) (mem. op.).
3
Tex. Fam. Code Ann. § 262.106 (West Supp. 2018).

4
the end of May 2016.4 Mother appeared for a visit with V.S. that same week, but

Johnson then lost contact with her until January 14, 2017, when he went to see her in

jail. Except at the adversary hearing, Johnson had no contact with Father until March

2017, when he called to give Father the paternity-test results.

G. The Department finds a family placement—the Adamses

While Father and Mother were out of the picture, through Mother’s father’s

assistance the Department found a family placement for V.S. with Larry Adams and

his wife Mary, who is Mother’s cousin.

The placement was not without some initial hiccups. Duke resurfaced and

caused an unspecified “incident” that concerned the Adamses and made them

hesitate, but after they overcame their reservations, the Department placed V.S. with

them on October 29, 2016. After the placement, Mary testified, she and her husband

had never looked back.

H. Mother goes to jail and pleads guilty to attempted assault on a public
servant

On January 14, 2017, Mother found Father at their home with one of her

female friends, got angry, and—according to Mother—went after her friend with a

golf club. Father suffered a small knife cut in the process, but Mother could not

remember how that happened. In any event, Mother admitted that there was domestic

violence between her and Father.

4
The adversary hearing was actually on June 1, 2016.

5
 Mother acknowledged at trial that she was arrested for domestic assault and for

attempted assault on a public servant; she ended up pleading guilty to the latter charge

and the assault charge against Father got dismissed. When asked to describe what she

had done that led to her arrest for an attempted assault on a public servant, she

responded, “When I got arrested [for the assault on Father], I kicked the door so they

said that I had an attempted assault on a public servant.” She served over three

months in the Parker County jail and got out in May 2017.5 By this point, she had not

cooperated with Johnson enough for him to develop a service plan much less for her

to have worked any services.

In contrast to Mother, Father recalled the events of January 14 with greater

detail: “I was sitting there on the couch beside this girl. . . . We were asleep. And then

[Mother] came in the door and pretty much like she said, with the golf club. And then

I didn’t see the [pocket] knife until after I took the golf clubs out of her hand.” Father

added, “I took the golf clubs away. And in the scuffle she just scratched my hand with

the knife. I didn’t have no paramedics called or nothing. It was just a scratch.”

At the time, although he and Mother were living in the same house, both

agreed that they were not necessarily a couple. Father maintained that the woman he

was with was just a friend, but in his statement to the police, he described her as an

5
This was not Mother’s first trip to a jail. She had spent a few days in the
Tarrant County jail in 2012 on a possession charge, and the police arrested her in 2013
for traffic tickets. Her two older children were present when she was arrested for
possession in 2012.

6
“ex-girlfriend.” In his statement, Father also reported that Mother was “screaming at

the top of her lungs” and indicated that he wanted to file charges against her, but at

trial he acknowledged that the charges went away and that he never had to testify

against her.

I. Father goes to jail and pleads guilty to possession

Despite V.S.’s birth, but before having his paternity confirmed, Father was still

involved with drugs. In late February 2017, the police kicked in the door to his house

and raided it. The police arrested Father, and he later pleaded guilty to possession of

less than one gram of methamphetamine. The trial court sentenced Father to 24

months in a state-jail facility, probated for three years, and a $1,000 fine.

J. Jail becomes a watershed experience for both Father and Mother

Mother testified that going to jail made her step back and reevaluate things. In

jail, she got mental-health help, was diagnosed with depression, and was prescribed

the antidepressant Zoloft, which she said made a difference. Between Mother’s release

from jail and the trial date, she had not tested positive for drugs, and so January 14,

2017—the date she was arrested—became her sobriety date.

Father, too, described going to jail as a life-altering experience. He testified that

while he was lying in jail, “looking at the ceiling, . . . that was it. That’s all it took for

me. Before I never got in trouble. If I would have got in trouble earlier, it probably

would have been then when I made that decision.” He elaborated, “When . . . they

kicked in my door, I had already been clean a week. Laying up there looking at the

7
ceiling, [I] said I’m not doing this ever again. No ifs, ands, or [buts]. I’m not touching

meth or any other drug ever again.”

K. Father and Mother work services

Once out of jail in May 2017, Mother immediately asked Johnson for service-

provider information and actively worked her services. And once Father received the

DNA results in late March 2017, he told Johnson that he wanted to participate in a

service plan. Johnson created one, Father signed it in April, and Father immediately

started performing his services.

Even though Father and Mother were both actively working their services,

Johnson told them that no matter what they did, the Department would not change

its goal. Despite that, neither quit, both kept working services, and both stayed clean.6

L. Visits resume in June 2017

Shortly after her release from jail, Mother saw V.S. for the first time in about a

year. Less clear is how long Father went without seeing V.S.

Both Mother and Father testified that Father had seen V.S. at the hospital in

May 2016. Father described visiting V.S. with Mother, so presumably he too started

visiting V.S. in June 2017 or shortly after.

See A.W., 2018 WL 5074770, at *14 n.17 (addressing parent’s complaint that
6

he had no motivation to work services because the caseworker and FBSS worker had
told him that the Department would not change its position even if he completed
them).

8
 M. V.S. has medical needs

While in foster care before his placement with the Adamses, V.S. developed

“flat head,” a birth condition technically called plagiocephaly, and had to wear a

helmet to correct it. According to Mary Adams, the “flat head” itself was related to

another condition known as hypertonia, which she described as basically low muscle

tone or “floppy baby.” To help with this condition, every week V.S. was receiving

three therapies—two physical and one occupational. In addition to the therapy

sessions, the Adamses and their two other children worked with V.S. daily. Due to his

condition, V.S. did not learn to crawl until he was 11 months old, which Mary said

was considered delayed, but by 13 months, he had learned to walk.

At the time of trial, V.S. was already on the Adamses’ health insurance even

though the Department had not required such coverage as a condition of V.S.’s

placement.

N. Stability of Father’s and Mother’s relationship

Mother testified that after she gave birth to V.S. in May 2016, her relationship

with Father was “on and off” until February 2017, at which time she described them

as becoming a couple again. They were not married and had never held themselves

out as married. Mother described their current relationship as happy and close, and

Father echoed Mother’s assessment by describing it as “great.” Father’s sister and

Johnson agreed that Father and Mother appeared to have a good and healthy

relationship.

9
 O. Relative risks posed to V.S.

Johnson acknowledged that any danger to V.S. had nothing to do with Father’s

and Mother’s present conduct. By the end of August 2017, Johnson further

acknowledged, Father and Mother’s home had appropriate accommodations for a

child, and Father and Mother had done everything on their service plans that they

could have.7

But as Johnson explained, permanence matters greatly to children, and the

Adamses, who wanted to adopt V.S., offered that permanence. By comparison,

Johnson asserted, placing a child with parents who later relapse is “[l]ess permanent.”

When Johnson left the case in August 2017, he thought that appointing either

parent as managing conservator would have risked harming V.S. significantly, either

emotionally or physically. In so opining, Johnson relied on Father’s and Mother’s

criminal history and on the criminal charges for which they were arrested. He further

noted the number of times that Father and Mother had been incarcerated and

commented that incarcerated parents were not able to care for their children. Johnson

next cited the fact that neither parent engaged in V.S.’s life during the first year, and

he thought that Father’s paternity concerns should have made little difference. (As

noted earlier, Father was 80% certain he was V.S.’s father, but he nevertheless waited

7
Consistent with these observations, the court-appointed special-advocate
(CASA) worker, Linda Garrett, advocated for essentially a monitored return, that is,
“a gradual return where the parents are held accountable, and to do certain things to
plan for his return.”

10
about six months before submitting a genetic sample. And Johnson had told Father

that Father could work services despite not being genetically tested.) Johnson also

relied on the duration of both parents’ drug use and the fact that both had previously

relapsed. From working as the caseworker on Tom’s (Mother’s other son’s) case,

Johnson was also concerned that Father might have been using drugs on a daily basis

while Tom was living with Father and Mother.

According to Lindsey Beckman, Father’s and Mother’s individual and couple’s

therapist, relapses are fairly common. And if one parent relapsed, she testified that it

might impact the other. When asked if she would trust her own child, or if she would

ask someone else to trust their child with Father and Mother, Beckman declined to

answer, stating that she was not able to predict future negative behavior.

Mother agreed that if she used again, she expected both Father and his sister to

“throw [her] under the bus.” Father articulated it differently: “I’ll just boot her out.

[V.S.] will stay with me.” If Father used again, Mother said that she would leave him,

probably go to a friend’s home, and get a job.

Both Father and Mother testified to their opinion that removing V.S. from the

Adamses would not harm him. Mary Adams thought, to the contrary, that changing

V.S.’s placement would greatly traumatize him emotionally—in part simply because of

his age and in part because of the depth of the bond he had developed with her and

her husband. And according to Johnson, removing children from placements

generally was traumatic and harmful to them.

11
 P. Procedural facts; trial-court findings

In early October 2017, the Adamses intervened in this case and sought to

terminate Father’s and Mother’s parental rights to V.S.

At the end of that month, the Department sought leave to file an amended

original petition in which it still sought to terminate Father’s and Mother’s parental

rights.

And on November 6, 2017, the morning of trial, Father moved for—and the

trial court granted—leave to file a first amended answer and counterclaim in which he

sought managing conservatorship. On the same date, the Department announced that

it was no longer seeking to terminate either parent’s parental rights, was opposing

managing conservatorship in either parent, and was seeking to have the Adamses

appointed managing conservators. The Adamses, unlike the Department, announced

that they were still seeking termination or, alternatively, sole managing

conservatorship.

The trial court did not terminate Father’s and Mother’s parental rights but

instead made the Adamses V.S.’s sole managing conservators and made Father and

Mother possessory conservators.

Regarding conservatorship, the trial court made the following factual findings:

23. There is credible evidence of a history of domestic violence between
[Mother] and [Father].

24. There is credible evidence of a history of past physical abuse by
[Mother] directed against [Father].

12
...

39. Appointment of [Mother] and [Father] as joint managing
conservators of the child would significantly impair the child’s physical
health or emotional development.

40. Appointment of [Mother] as sole managing conservator of the child
would significantly impair the child’s physical or emotional development.

41. Appointment of [Father] as sole managing conservator of the child
would significantly impair the child’s physical health or emotional
development.

42. It is in the best interest of the child, [V.S.], that Intervenors, [Larry
and Mary Adams] be appointed the non-parent Sole Managing
Conservator of the child.

The trial court made the following corresponding conclusions of law:

3. [Mother] and [Father] may not be appointed joint managing
conservators of the child the subject of this suit as credible evidence has
been presented to the Court of a history or pattern of physical abuse by
one parent directed against the other parent.

4. [Mother] has not presented sufficient evidence to rebut the
presumption that she may not be appointed sole managing conservator
of the child the subject of this suit as sufficient credible evidence has
been presented to the Court of a history or pattern of physical abuse by
her against the other parent.

5. In addition to the preceding conclusions of law, the Court concludes
that appointment of [Mother] and [Father] as joint managing
conservators of the child would significantly impair the child’s physical
health or emotional development.

6. Appointment of [Mother] as sole managing conservator of the child
would significantly impair the child’s physical health or emotional
development.

7. Appointment of [Father] as sole managing conservator of the child
would significantly impair the child’s physical health or emotional
development.
13
 8. It is in the best interest of the child that [Larry and Mary Adams] be
appointed non-parent sole managing conservator of the child the subject
of this suit.

II. Issues on Appeal

Father presents two issues: First, “Did the trial court abuse its discretion in

determining that appointment of Father as sole managing conservator or as a joint

managing conservator of the child would significantly impair the child’s physical

health or emotional development?” And second, “Did the trial court err in

determining that Mother and Father were precluded from being appointed joint

managing conservators of the child where no evidence was presented that Father

engaged in family violence?”

Mother raises one issue: “The trial court abused its discretion in determining

that appointment of Mother and Father as Joint Managing Conservators, or either of

them as Sole Managing Conservators, would significantly impair the child’s physical

health or emotional development.”

III. Standards of review

A. Conservatorship standard of review

We review conservatorship determinations for an abuse of discretion and may

reverse those determinations only if they are arbitrary and unreasonable. In re J.A.J.,

243 S.W.3d 611, 616 (Tex. 2007); In re S.T., 508 S.W.3d 482, 489 (Tex. App.—Fort

Worth 2015, no pet.). Legal and factual insufficiency are not independent grounds for

asserting error under the abuse-of-discretion standard here but are merely relevant
14
factors in assessing whether the trial court abused its discretion. S.T., 508 S.W.3d at

489. We first inquire into the evidentiary sufficiency. Id. Next we determine whether,

based on the elicited evidence, the trial court decided reasonably. Id.

B. Factual-findings standard of review

We apply a preponderance-of-the-evidence standard to factual findings. Tex.

Fam. Code Ann. § 105.005 (West 2014) (“Except as otherwise provided by this title,

the court’s findings shall be based on a preponderance of the evidence.”).

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

that evidence supporting a vital fact is completely absent; (2) legal or evidentiary rules

bar us 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 vital fact’s opposite. S.T., 508 S.W.3d at 489

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

denied, 526 U.S. 1040 (1999)). In determining whether legally sufficient evidence

supports a finding, we consider evidence favorable to the finding if a reasonable

factfinder could and disregard evidence contrary to the finding unless a reasonable

factfinder could not. Id. at 489-90 (citing Cent. Ready Mix Concrete Co. v. Islas,

228 S.W.3d 649, 651 (Tex. 2007)).

When a party asserts that the evidence is factually insufficient to support a

finding, we will set it aside only if, after considering and weighing all pertinent record

evidence, we determine that the credible evidence supporting the finding is so weak or

15
so contrary to the overwhelming weight of all the evidence that it should be set aside

and a new trial ordered. Id. at 490 (citing Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986)).

In a bench trial, the trial court acts as the factfinder, and we give its factual

findings the same weight as a jury’s verdict. Advance Tire & Wheels, LLC v. Enshikar,

527 S.W.3d 476, 480 (Tex. App.—Houston [1st Dist.] 2017, no pet.); In re A.E.A.,

406 S.W.3d 404, 414 (Tex. App.—Fort Worth 2013, no pet.). When, as in this case,

there is a complete reporter’s record, challenged factual findings are binding only if

legally and factually sufficient proof supports them. Advance Tire, 527 S.W.3d at 480; In

re J.M.C., 395 S.W.3d 839, 844 (Tex. App.—Tyler 2013, no pet.). But unchallenged

factual findings bind an appellate court—unless the contrary is proved as a matter of

law or there is no evidence to support the finding. Advance Tire, 527 S.W.3d at 480; In

re E.R.C., 496 S.W.3d 270, 288 (Tex. App.—Texarkana 2016, pet denied), cert. denied,

137 S. Ct 834 (2017). The trial court evaluates and resolves any evidentiary

inconsistencies. In re S.J.R.-Z, 537 S.W.3d 677, 691 (Tex. App.—San Antonio 2017,

pet. denied); Advance Tire, 527 S.W.3d at 480. It alone judges witnesses’ credibility.

Advance Tire, 527 S.W.3d at 480; E.R.C., 496 S.W.3d at 284. It may accept all, reject all,

or accept only parts—rejecting other parts—of a witness’s testimony, based on the

record before it. Advance Tire, 527 S.W.3d at 480. If the evidence is subject to

reasonable disagreement, we will not reverse. Id.

16
 IV. Conservatorship

A. Joint managing conservatorship

Section 153.004 of the family code provides in pertinent part: “The 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 . . . .” Tex. Fam. Code Ann. § 153.004(b) (West

Supp. 2018). We have held that a “single act of violence or abuse can constitute a

‘history’ of physical abuse for purposes of section 153.004(b).” In re R.T.H.,

175 S.W.3d 519, 521 (Tex. App.—Fort Worth 2005, no pet.); see also Avalos v. Avalos,

No. 02-08-00012-CV, 2008 WL 5115300, at *2 (Tex. App.—Fort Worth Dec. 4, 2008,

no pet.) (mem. op.).

Here, the trial court found “credible evidence of a history of domestic violence

between [Mother] and [Father],” although this finding did not ascribe blame to either

parent. This finding determines whether section 153.004(b) applies. See Tex. Fam.

Code Ann. § 153.004(b).

Although Mother testified that she was attacking the woman Father was with,

and not Father himself, she also admitted that she and Father had engaged in

domestic violence and that she was arrested for domestic assault. Father described

Mother’s assaulting him with golf clubs and a pocket knife, during which scuffle the

knife cut him slightly. Because a single incident can constitute a “history of family

violence,” and because their testimony constitutes more than an evidentiary scintilla—

17
and is in fact quite strong, especially when considering that the trial court could have

disbelieved Mother’s testimony that she was attacking the other woman and not

Father—we hold that both legally and factually sufficient evidence supports this

finding. See Advance Tire, 527 S.W.3d at 480; S.T., 508 S.W.3d at 489; R.T.H.,

175 S.W.3d at 521; Avalos, 2008 WL 5115300, at *2.

And because the statute absolutely prohibits joint managing conservatorship

under these facts, the trial court did not abuse its discretion by determining that

Father and Mother could not be appointed as V.S.’s joint managing conservators. See

Tex. Fam. Code Ann. § 153.004(b); see In re D.M., No. 02-16-00473-CV, 2017 WL

1173847, at *1 (Tex. App.—Fort Worth Mar. 30, 2017, no pet.) (mem. op.) (“Credible

evidence of [family violence involving the child’s parents] absolutely prohibits the

appointment of the parents as joint managing conservators.”). We thus overrule those

portions of Father’s and Mother’s issues in which they complain of the trial court’s

not appointing them joint managing conservators.8

B. Mother as sole managing conservator

Another portion of family-code section 153.004(b) addresses sole managing

conservatorship:

8
We also overrule Father’s second issue, in which he claims that the trial court
erred by “determining that Mother and Father were precluded from being appointed
joint managing conservators of the child where no evidence was presented that Father
engaged in family violence,” because Father’s conduct is irrelevant on this point.
Section 153.004(b) precludes joint managing conservatorship if either parent has
engaged in family violence, something the credible evidence shows on Mother’s part,
as we discuss below.

18
 It is a rebuttable presumption that the appointment of a parent as the
sole managing conservator of a child . . . is not in the best interest of the
child if credible evidence is presented of a history or pattern of past or
present child neglect, or physical . . . abuse by that parent directed
against the other parent, a spouse, or a child.

Tex. Fam. Code Ann. § 153.004(b). The trial court’s finding of “credible evidence of a

history of past physical abuse by [Mother] directed against [Father]” determines

whether the above portion of section 153.004(b) applies to Mother.

As discussed, the evidence legally and factually sufficed to support the finding

that Father and Mother engaged in domestic violence, but our discussion of that

finding did not require determining who the perpetrator was. This one does.

Mother admitted that she engaged in domestic violence with Father, and Father

described Mother’s assaulting him with golf clubs and a knife. Although Mother

hedged on whom she intended to assault, the trial court as the factfinder was free to

disbelieve her testimony that she intended to attack the other woman and not Father.

See Advance Tire, 527 S.W.3d at 480. Because both Mother’s and Father’s testimony

constitutes more than an evidentiary scintilla and strongly identifies Mother as the

attacker, we hold that both legally and factually sufficient evidence supports the trial

court’s finding of physical abuse directed toward Father. See S.T., 508 S.W.3d at 489.

C. Appointment of either Father or Mother; “significant impairment”

In light of the evidentiary support for the trial court’s physical-abuse finding,

there was a rebuttable presumption that appointing Mother sole managing

conservator was not in the child’s best interest. See Tex. Fam. Code Ann. § 153.004(b).

19
Because Father was not the parent who engaged in domestic violence, he did not

labor under the same rebuttable presumption.

The trial court found:

40. Appointment of [Mother] as sole managing conservator of the child
would significantly impair the child’s physical health or emotional
development.

41. Appointment of [Father] as sole managing conservator of the child
would significantly impair the child’s physical health or emotional
development.

Absent these findings, family-code section 153.131(a) would have required the trial

court to appoint either Father or Mother as sole managing conservator. See Tex. Fam.

Code Ann. § 153.131(a) (West 2014).

1. Applicable legal principles

Section 153.131(a) provides:

(a) Subject to the prohibition in Section 153.004, 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.

Id.; see In re V.L.K., 24 S.W.3d 338, 341–42 (Tex. 2000) (stating that under family code

chapter 153, a nonparent can rebut the parental presumption by showing that

appointing the parent would significantly impair the child’s health or development).

The section 153.131 parental presumption rests on the natural affection that parents

and their children usually share. V.L.K., 24 S.W.3d at 341; see S.T., 508 S.W.3d at 491.

20
 Impairment must be proved by an evidentiary preponderance indicating that

some specific, identifiable parental behavior or conduct, shown by specific parental

acts or omissions, will probably cause that harm. Critz v. Critz, 297 S.W.3d 464, 474

(Tex. App.—Fort Worth 2009, no pet.); see also In re K.R.B., No. 02-10-00021-CV,

2010 WL 3928727, at *4 (Tex. App.—Fort Worth Oct. 7, 2010, no pet.) (mem. op.).

Examples of significant impairment are parental physical abuse, severe neglect, drug

or alcohol abuse, or immoral behavior. See In re De La Pena, 999 S.W.2d 521, 528 (Tex.

App.—El Paso 1999, no pet.). Proving significant impairment is a heavy burden;

merely showing that the nonparent would be a better custodian of the child does not

satisfy it. Critz, 297 S.W.3d at 474–75. Courts should decide “close calls” in the

parent’s favor. Id. at 475.

Discussing the “significantly impair” standard, the supreme court in Lewelling v.

Lewelling held that non-parents seeking custody must identify some act or omission

that the parent committed showing that naming the parent as managing conservator

will significantly impair the child’s physical health or emotional development.

796 S.W.2d 164, 167–68 (Tex. 1990);9 see S.T., 508 S.W.3d at 491. In Lewelling, being

unemployed and living in crowded conditions were not enough to show significant

impairment; neither were two visits to a mental health hospital when there was no

9
See J.A.J., 243 S.W.3d at 616 (“Section 153.131(a) . . . imposes a more general
standard that does not enumerate specific acts or omissions by the parent, but instead
requires the court to find that appointing a parent would not be in the child’s best
interest because it would ‘significantly impair the child’s physical health or emotional
well-being.’”).

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showing of mental problems; and being a spousal-abuse victim was not enough either.

796 S.W.2d at 167 (holding that evidence did not show significant impairment in

custody battle between paternal grandparents and mother).

Providing a counterweight to Lewelling is Danet v. Bhan, in which the supreme

court held that evidence showing

• the parent’s conduct from two or three years earlier, plus

• other more recent conduct—not visiting the child and not
communicating with the child consistently—as well as

• that the child had bonded with his foster parents,

• that the foster parents provided a stable environment, and

• that the foster placement itself resulted from the parent’s acts and
omissions,

all constituted evidence supporting the trial court’s finding that placing the child back

in the parent’s custody would significantly impair the child’s physical health or

emotional development. 436 S.W.3d 793, 797–98 (Tex. 2014); see S.T., 508 S.W.3d at

492.

Beyond the types of acts and omissions already mentioned (physical abuse,

severe neglect, etc.), other considerations involving significant impairment may

include parental irresponsibility; a history of suicidal thoughts and mental disorders;

frequent moves; bad judgment; child abandonment; and an unstable, disorganized,

and chaotic lifestyle that has put and will continue to put the child at risk. S.T.,

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508 S.W.3d at 492; In re R.R., No. 02-13-00464-CV, 2014 WL 3953930, at *3 (Tex.

App.—Fort Worth Aug. 14, 2014, no pet.) (mem. op.).

The material time to consider is the present, and evidence of past conduct may

not, by itself, suffice to show present unfitness. S.T., 508 S.W.3d at 492.; Critz,

297 S.W.3d at 475; see K.R.B., 2010 WL 3928727, at *11 (holding that although

mother’s past criminal conduct and drug use were relevant, they did not show that

appointing her managing conservator about twenty months later, after she had

multiple negative drug tests, would significantly impact the child’s physical health or

emotional development); In re S.W.H., 72 S.W.3d 772, 778–79 (Tex. App.—Fort

Worth 2002, no pet.) (stating that none of the evidence regarding the mother’s actions

more than four years earlier showed that appointing her as the child’s managing

conservator at present would significantly impair the child’s physical health or

emotional development when (1) the evidence was uncontroverted that the mother

had remained clean and sober since entering drug treatment and (2) there was

uncontroverted evidence that she had maintained steady employment, had a safe and

stable home environment, and after her release from treatment had bonded with the

child during visitations). If the parent is presently suitable to have custody, the fact

that the parent would have been unsuitable at an earlier time is not controlling. Critz,

297 S.W.3d at 475.

But this principle is qualified by the permissible inference that an adult’s future

conduct may well be measured by his recent deliberate past conduct as it may relate to

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the same or a similar situation. May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus

Christi 1992, writ denied) (citing De Llano v. Moran, 333 S.W.2d 359, 361 (Tex. 1960)).

Indeed, specific harmful actions or omissions could hardly be shown without referring

to the parent’s recent behavior. Id.

2. Discussion

No one disputed at trial that both Father and Mother had been clean for about

nine and ten months, respectively. And although both professed the ability and desire

to stay clean, the trial court could have given their testimony little weight in view of

other testimony that relapses are common and, more specifically, that both Father and

Mother had relapsed in the past. See Advance Tire, 527 S.W.3d at 480.

Illustrating the tension between weighing a parent’s past bad conduct and

purported present rehabilitation is the supreme court’s De Llano opinion. 333 S.W.2d

at 359. The evidence there showed that father drank to excess throughout his

marriage, was known to drive his vehicle fast, and thought he was capable of driving

after consuming large amounts of alcohol because, in his own estimation, he held his

liquor well. Id. at 360–61. Tragedy struck when the father, after drinking alcohol,

drove into a freight train because he did not see it, killing his wife. Id. at 361.

After the fatal accident, the maternal grandparents sought custody of the

father’s and now-deceased mother’s child. Id. at 360. They succeeded in the trial court,

but the father appealed, and the appellate court reversed and rendered in his favor. Id.

Persisting, the maternal grandparents petitioned the supreme court.

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 In the high court, the grandparents obtained the relief they sought when the

supreme court reversed the court of appeals and affirmed the trial court’s judgment.

Id. at 361. The supreme court wrote, “The [appellate court] evidently [erroneously]

gave considerable weight to [the father’s] testimony indicating that there has been a

change in his attitude and behavior since the death of his wife. The trial court was not

required to believe such evidence, however, because the hearing occurred less than

three months after the accident.” Id. The supreme court added, “A person’s conduct

during so brief a period affords no basis for saying with any assurance that there has

been a permanent change in his character and habits.” Id.

Although Father and Mother are to be commended on their progress, and we

encourage them on that path regardless of this case’s outcome, as De Llano shows the

trial court was not required to believe that the danger had passed. See id. Indeed,

Mother testified that depression was a trigger for her drug use, that while incarcerated

she was diagnosed with depression and prescribed Zoloft, that the Zoloft admittedly

helped, but that she stopped taking it after her release, believing that she no longer

needed it. When hearing this testimony, the trial court openly questioned her

judgment. And Father testified that although he was an addict at one time, he no

longer was. This testimony—Father’s denying that his addiction problem persisted

despite other testimony that relapses were fairly common and that Father himself had

previously relapsed—could have reasonably raised red flags too.

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 Complicating Father’s and Mother’s situation was the fact that they were living

together. Although they currently had a stable relationship, their history—even within

the past year—was one of an on-again-off-again relationship. And if one were to

relapse, each said that they would separate, which would inject additional instability

into any child’s life. Another possibility is that one’s relapsing might facilitate the

other’s relapsing.

V.S. was only about 18 months old at the time of trial and thus extremely

vulnerable, particularly in light of his hypertonia. While neither parent worked services

for the first year; while Mother sat in jail; and while Father delayed in providing a

DNA sample, V.S. deeply bonded with the Adamses. Mary Adams testified that

removing V.S. from their home would greatly traumatize him emotionally, and

Johnson testified that removal generally is traumatic and harmful to children.

Although Father and Mother thought otherwise, the trial court was not required to

give their testimony any weight. See Advance Tire, 527 S.W.3d at 480.

Although Father and Mother do not raise an appellate issue challenging the

Adamses’ appointment as V.S.’s sole managing conservators, the trial court found that

they met all his needs, that he had deeply bonded with them, and that their home

provided V.S.—a child with medical needs—stability and dedication. See Holley v.

Adams, 544 S.W.2d 367, 371-72 (Tex. 1976); see also Danet, 436 S.W.3d at 797 (“We

also consider the evidence that the child has bonded with [foster parents] in a stable

26
environment and the emotional harm that could result from the child’s separation

from those who have cared for him most of his life . . . .”).

In contrast, neither Father nor Mother had met V.S.’s needs for at least the first

year of his life. Father and Mother’s relationship was currently stable, but they were

not married and had a rocky history. The domestic-abuse incident appeared to be an

isolated one, but it nevertheless occurred—and while the case was pending, at that.

Despite Father’s and Mother’s great strides toward turning their lives around,

the trial court could reasonably question their ability to continue to do so. Moreover,

given their neglect during the first year of V.S.’s life, the trial court could reasonably

fear the consequences to V.S. if they slipped up. See Danet, 436 S.W.3d at 797 (“This

evidence [showing placement would substantially impair the child’s physical health or

emotional development] includes [the mother’s] conduct in the more distant past, two

or three years before the . . . trial. . . . But it also includes evidence of [the mother’s]

more recent conduct prior to trial. . . .”).

In short, making either parent the sole managing conservator was a risk. The

parents’ prior transgressions were many, serious, and recent. Because there was more

than an evidentiary scintilla and because the credible evidence supporting the trial

court’s findings is not so weak or so contrary to the overwhelming weight of all the

evidence, we hold that the evidence suffices legally and factually to support the

findings that appointing either Father or Mother sole managing conservator would

significantly impair V.S.’s physical health or emotional development, and that the trial

27
court did not abuse its discretion by so finding. See S.T., 508 S.W.3d at 489.

Accordingly, we overrule Father’s and Mother’s issues in which they each argue that

the trial court abused its discretion by declining to appoint either of them as a sole

managing conservator.

V. Conclusion

We overrule Father’s and Mother’s issues and affirm the trial court’s order.

/s/ Elizabeth Kerr

Elizabeth Kerr
Justice

Delivered: November 29, 2018

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