in the Interest of F.R.N., a Child

IN THE
TENTH COURT OF APPEALS

No. 10-18-00233-CV

IN THE INTEREST OF F.R.N., A CHILD

From the 74th District Court
McLennan County, Texas
Trial Court No. 2017-1501-3

MEMORANDUM OPINION

Krystle N. appeals from a judgment that named her and Nadine N., her mother-

in-law, joint managing conservators of her daughter, F.R.N., with Nadine having the

exclusive right to establish F.R.N.'s primary residence. Krystle argues that the trial court

erred by finding that Nadine had standing to bring the action, that the trial court abused

its discretion by naming Nadine as a joint managing conservator, and that the trial court

abused its discretion in the admission of hearsay evidence. Because we find no reversible

error, we affirm the judgment of the trial court.

FACTS

Krystle and Matt, Nadine's son, were married at a young age and Krystle got
pregnant with F.R.N. a short time later. From the time of F.R.N.'s birth, there was

evidence that F.R.N. spent a substantial amount of time with Nadine and Jeff, Nadine's

longtime boyfriend, and was spending around half of the time with Nadine by the age of

three or four. Krystle and Matt would go out and "have fun" and leave F.R.N. with

Nadine. Krystle and Matt were financially unstable and would spend their money on

entertainment for themselves, such as tattoos, alcohol, and marijuana, rather than

necessities for their home. Nadine spent substantial sums to assist Krystle and Matt for

the purpose of ensuring F.R.N.'s safety while she was with her parents, including

purchasing a new hot water heater when theirs had been inoperable for a period of time

while they had F.R.N. with them, rent, car payments, and F.R.N.'s schooling. This was in

addition to Nadine having possession of F.R.N. approximately 60 percent of the time

according to Nadine. Nadine had also assisted both Matt and Krystle with employment

opportunities.

In 2015, Matt, and later Krystle, began using marijuana. In late 2016 and early

2017, Krystle started staying out all night and drinking in Austin; and would then drive

back to Waco where they were then living, in the early morning. She was also having sex

with other men prior to Krystle and Matt separating in January of 2017, when Matt moved

to Arkansas. The day that Matt left, Krystle took F.R.N. to Nadine "because she couldn't

stand the sight of her." A witness heard Krystle tell Nadine that she couldn’t handle

F.R.N. and wanted Nadine to watch her. From that time until this proceeding was

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instituted in May of 2017, Nadine and the witnesses she presented testified that F.R.N.

resided primarily with Nadine and Krystle would show up occasionally. Even by

Krystle's admission, F.R.N. resided with Nadine at least half the time. Nadine estimated

that she took care of F.R.N. almost full time, at least five days a week, and sometimes for

longer periods of time.

Prior to this time, F.R.N. was struggling with grades and behavior in school and

had multiple tardies and absences. While residing with Nadine beginning in 2017, her

grades and behavior greatly improved at school. Nadine attended all school functions

and was very active in assisting at F.R.N.'s school. Krystle was very rarely seen picking

F.R.N. up from school and did not attend any school functions.

Krystle admitted to various people that she was drinking heavily, driving while

intoxicated at times, using drugs, and engaging in sexual relationships while F.R.N. was

with Nadine. One time a witness smelled alcohol on Krystle's breath while she had been

driving with F.R.N. in the car with her.

When Krystle would go out of town, Nadine would have access to Krystle's

residence to feed her dogs. Nadine found marijuana products in Krystle's residence twice

in locations that would have been easily accessible to F.R.N. Nadine found edible

marijuana which was wrapped to look like candy on her bedside table in her bedroom.

Nadine and Jeff also found marijuana "dabs" in her refrigerator. Both times, they

disposed of the marijuana rather than reporting her to law enforcement or CPS. At trial,

In the Interest of F.R.N., a Child Page 3
Krystle admitted to using marijuana more than ten times. Nadine found evidence in

Krystle's messenger app which Krystle had left open on Nadine's cell phone that she had

used marijuana more than twenty times in early 2017.

On May 2, 2017, Krystle took F.R.N. shopping with her at Target and stole a doll

which she gave to F.R.N. Krystle joked with Nadine later that children provide a great

distraction to stealing items from a store. F.R.N. was confused about taking items versus

paying for them from this incident.

Nadine filed a petition seeking to be given the right to establish the residence of

F.R.N. on May 5, 2017, asserting that F.R.N. would not be safe residing with Krystle.

Affidavits from Nadine and Matt were attached to the petition. The trial court conducted

the first temporary hearing on May 20, 2017, and after taking the matter under

advisement, named Nadine and Krystle as joint managing conservators with Nadine

having the right to establish F.R.N.'s residence and Krystle having visitation pursuant to

a standard possession order.

When Krystle would have F.R.N. for extended visits pursuant to the temporary

orders, F.R.N. was returned to school at different times in dirty clothes, unbathed,

smelling badly, and with her hair unfixed, which was upsetting and embarrassing to

F.R.N., who was then six years old. One time she was returned with abscesses on her

feet, which Nadine believed was due to dog feces that had been left on the floor of F.R.N.'s

bathroom. After visits, F.R.N. would be angry and emotional and hard to control. F.R.N.

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at times would have bruises that a witness testified that F.R.N. had told her one time was

caused by Krystle kicking her repeatedly, although F.R.N. said it was her fault that

Krystle was mad. F.R.N. also lost a baby tooth that was not loose when Krystle picked

her up, which she said was caused by walking into a door. F.R.N. also alleged that other

bruises had also been caused by walking into a door. There was a report made to CPS,

but it was ruled out because F.R.N. did not make an outcry against her mother and CPS

did not find any other concerns.

F.R.N. was evaluated for autism by a child psychologist, who determined that

F.R.N. did not meet the criteria to be diagnosed with autism at that time. Other testing

and diagnostics was conducted, and the psychologist determined that F.R.N. suffers from

Reactive Attachment Disorder (RAD), which was based in large part on the instability in

her life from her parents. In reaching this determination, the psychologist’s report stated

that:

[F.R.N.] exhibits a pattern of inhibited and erratic emotionally-withdrawn
behaviors toward adult caregivers, manifested by her hesitance and
atypical response to seeking and receiving comfort when distressed. She
demonstrates a pattern of social and emotional disturbances characterized
by reduced emotional responsiveness to others and episodes of
unexplained irritability, anger, sadness, and fearfulness that she expresses
even during nonthreatening interactions with adult caregivers.

The psychologist testified at the final hearing that children who are diagnosed

with RAD require therapeutic intervention and "an environment that's consistent and

predictable and structured." Failure to address this disorder can have far-reaching

In the Interest of F.R.N., a Child Page 5
serious consequences into adulthood. The psychologist opined that Nadine's

"consistency" and "predictability" at home and at her school were helping F.R.N.'s

behavior to improve and that to remove her from Nadine's home would be especially

detrimental to F.R.N. The psychologist also testified that removing F.R.N. from her

school would be extremely detrimental to her and would greatly increase her anxiety.

The psychologist began seeing F.R.N. for therapy after the evaluation. Improvements

made by F.R.N. during therapy were attributed to having a stable, consistent and

predictable home life.

During one session, F.R.N. admitted to the psychologist that Krystle and Nadine

don't like each other and that she was extremely fearful of not seeing either one of them

again. F.R.N. told the psychologist that Krystle had told her that after Christmas that

year she would never see Nadine again, which caused F.R.N. great anxiety. F.R.N. was

very anxious about potentially being removed from Nadine's home.

Krystle was living in Austin at the time of the final hearing and witnesses testified

that she was stable and doing well there. The CPS investigator who investigated the

allegations against Krystle testified that the Department did not have any concerns about

Krystle's parenting. There was testimony that marijuana use is not considered to be a

negative thing in the Austin area as long as the children are not directly harmed by its

use. The psychologist testified that there were no concerns specifically after Krystle's

visits with F.R.N. that would rise to the level of intentionally causing significant

In the Interest of F.R.N., a Child Page 6
impairment to F.R.N., although the psychologist still believed that F.R.N. should be

placed with Nadine.

STANDING

In her first issue, Krystle complains that the trial court erred by determining that

Nadine had standing to bring this action because there was insufficient evidence of

significant impairment of F.R.N. Nadine alleged that she had standing based on Section

102.004(a)(1) of the family code which states that a grandparent may file an original suit

requesting managing conservatorship of a child if there is satisfactory proof that "the

order is necessary because the child's present circumstances would significantly impair

the child's physical health or emotional development." TEX. FAM. CODE ANN. §

102.004(a)(1).

We review questions of standing de novo. In re S.M.D., 329 S.W.3d 8, 13 (Tex.

App.—San Antonio 2010, pet. dism'd). The party asserting standing bears the burden of

proof on this issue. Id. In assessing standing, we look primarily to the pleadings and

consider relevant evidence of jurisdictional facts "when necessary to resolve the

jurisdictional issues raised." Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex. 2000).

We construe the pleadings in the petitioner's favor, looking to the language to ascertain

the pleader's intent. In re M.J.G., 248 S.W.3d 753, 757 (Tex. App.—Fort Worth 2008, no

pet.); Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.—El Paso 2002, no pet.). In family

law cases in which a petitioner must go beyond mere pleading allegations and provide

In the Interest of F.R.N., a Child Page 7
"satisfactory proof" of jurisdictional facts to establish statutory standing, the petitioner

meets that burden where those predicate facts are proven by a preponderance of the

evidence. In re S.M.D., 329 S.W.3d at 13. As in this case, when the trial court does not

make separate findings of fact and conclusions of law on the issue of standing, "we imply

the findings necessary to support the judgment . . . [and] review the entire record to

determine if the trial court's implied findings are supported by any evidence." Id.

We find that, based on our review of the entire record, Nadine proved by a

preponderance of the evidence that she had standing to bring this action. At the time of

the filing of the petition, Krystle had largely left the care and responsibility of F.R.N. with

Nadine while she engaged in harmful, immoral, and in some instances, illegal conduct.

Because the trial court is charged with the duty to make credibility determinations, and

in the absence of findings of fact and conclusions of law, we find that the trial court's

determination and the implied findings necessary to support the determination that

appointment of Krystle as a sole managing conservator would significantly impair

F.R.N.'s physical health or emotional well-being were supported by the evidence. We

overrule issue one.

JOINT MANAGING CONSERVATORS

In her second issue, Krystle complains that the trial court abused its discretion by

naming Nadine a joint managing conservator of F.R.N. because the evidence did not

support a finding of significant impairment of F.R.N., and Nadine did not overcome the

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parental presumption.

We review the trial court's conservatorship determination for abuse of discretion.

In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.

1982). Under this standard, legal and factual sufficiency challenges are not independent

grounds of error but factors used to determine whether the trial court abused its

discretion. In re K.S., 492 S.W.3d 419, 426 (Tex. App.—Houston [14th Dist.] 2016, pet.

denied); In re E.S.H., No. 11-14-00328-CV, 2015 Tex. App. LEXIS 4908, 2015 WL 2353349,

at *1 (Tex. App.—Eastland May 14, 2015, no pet.) (mem. op.). A trial court abuses its

discretion by acting unreasonably, arbitrarily, or without reference to guiding principles.

In re K.S., 492 S.W.3d at 426. "A trial court does not abuse its discretion if there is some

evidence of a substantive and probative character to support its decision." Id. However,

the best interest of the child is always the primary consideration of the court in

determining managing conservatorship. TEX. FAM. CODE ANN. §153.002.

Although trial courts are afforded broad discretion in deciding family law

questions, the legislature has explicitly limited the exercise of that discretion when a

nonparent seeks to be appointed as a managing conservator. Danet v. Bhan, 436 S.W.3d

793, 796 (Tex. 2014). When a court determines conservatorship between a parent and a

nonparent, a presumption exists that appointing the parent as the sole managing

conservator is in the child's best interest; this presumption is deeply embedded in Texas

law. TEX. FAM. CODE ANN. § 153.131; Danet, 436 S.W.3d at 796. Section 153.131(a)

In the Interest of F.R.N., a Child Page 9
provides:

[U]nless 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.

TEX. FAM. CODE ANN. § 153.131(a).

The statutory language in Section 153.131(a) creates a strong presumption in favor

of parental custody and imposes a heavy burden on a nonparent. Lewelling v. Lewelling,

796 S.W.2d 164, 167 (Tex. 1990). The nonparent may rebut the presumption with

affirmative proof, by a preponderance of the evidence, that appointing the parent as

managing conservator would significantly impair the child, either physically or

emotionally. Id.; see also In re J.A.J., 243 S.W.3d at 616. Usually, the nonparent must

present evidence that shows a parent's acts or omissions will have a detrimental effect on

the children's physical health or emotional development. In re S.T., 508 S.W.3d 482, 492

(Tex. App.—Fort Worth 2015, no pet.); see Lewelling, 796 S.W.3d at 167. Evidence of acts

or omissions that may constitute significant impairment include, but are not limited to,

physical abuse, severe neglect, drug or alcohol abuse, immoral behavior, parental

irresponsibility, and an unstable home environment. In re S.T., 508 S.W.3d at 492. While

not determinative, a parent's past conduct may have some bearing on future conduct. See

In re B.B.M., 291 S.W.3d 463, 469 (Tex. App.—Dallas 2009, pet. denied).

There was conflicting testimony regarding Krystle's care of F.R.N. physically and

In the Interest of F.R.N., a Child Page 10
emotionally both before and after the filing of the petition. Regarding F.R.N.'s emotional

development, the trial court heard testimony about the emotional instability that was

caused by Krystle and Matt's instability prior to their separation, and Krystle's

breakdown following their separation. Following visits with Krystle, F.R.N. was often

withdrawn and acted very differently. Matt, Nadine, Jeff, and the child psychologist all

testified that F.R.N.'s emotional well-being would be significantly impaired if Krystle was

appointed as F.R.N.'s sole managing conservator. Evidence of uncharacteristic behavior

after the child's visit with a parent is some evidence of significant impairment of

emotional development. See In re J.C., 346 S.W.3d 189, 195 (Tex. App.—Houston [14th

Dist.] 2011, no pet.).

This is not merely a situation where a child will be sad if they are not allowed to

see their grandparents where the parents have otherwise acted in the child's best

interests. The RAD was the result of the instability caused by Krystle and Matt's failure

to be responsible parents throughout F.R.N.'s life, which worsened substantially after

their separation, contrasted with Nadine's establishment of her home as a stable and

predictable place for F.R.N. The evidence shows that removing F.R.N. from the only

consistent home she has ever known due to Krystle's life choices would substantially

impair F.R.N.'s emotional well-being.

After reviewing the record, we hold that the trial court did not abuse its discretion

when it appointed Nadine to be a joint managing conservator with Krystle and to name

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her as the party with the right to establish F.R.N.'s residence. The evidence supports the

trial court's implied findings that F.R.N.'s physical health or emotional development

would be significantly impaired if Krystle were appointed as the sole managing

conservator. Therefore, Nadine sufficiently rebutted the parental presumption. See TEX.

FAM. CODE ANN. §153.131(a). We overrule issue two.

ADMISSION OF EVIDENCE

In her third issue, Krystle complains that the trial court abused its discretion by

the admission of hearsay testimony by F.R.N. to two witnesses. The first objectionable

testimony was regarding when F.R.N. told a friend of Nadine's that her mother had

kicked and hit her which caused her to be bruised all over. The second was when F.R.N.

told Nadine about being embarrassed to give Krystle a picture F.R.N. had drawn that

showed a "rash" around Krystle's neck which Nadine surmised were really hickeys.

We review a trial court's evidentiary ruling for an abuse of discretion. Whirlpool v.

Camacho, 298 S.W.3d 631, 638 (Tex. 2009). If the trial court abuses its discretion in an

evidentiary ruling, the complaining party must still show harm on appeal to warrant

reversal. See TEX. R. APP. P. 44.2(a); see also Ford Motor Co. v. Castillo, 279 S.W.3d 656, 667

(Tex. 2009). Harmful error is error that "probably caused the rendition of an improper

judgment." TEX. R. APP. P. 44.1(a); see McCraw v. Maris, 828 S.W.2d 756, 757 (Tex. 1992).

In other words, "[w]e review the entire record, and require the complaining party to

demonstrate that the judgment turns on the particular evidence admitted." Nissan Motor

In the Interest of F.R.N., a Child Page 12
Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004).

Even if the admission of the complained-of testimony was erroneous, we do not

find that Krystle was harmed by the admission of the evidence. Based on the discussion

of the evidence and the facts set forth above, neither instance of testimony has been

shown to be evidence "that the judgment turn[ed] on." Nissan Motor Co., 145 S.W.3d at

144. We overrule issue three.

CONCLUSION

Having found no reversible error, we affirm the judgment of the trial court.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Neill
Affirmed
Opinion delivered and filed August 7, 2019
[CV06]

In the Interest of F.R.N., a Child Page 13