in the Interest of J.G.I.G.

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-21-00161-CV

IN THE INTEREST OF J.G.I.G.

From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2019-PA-01378
Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Rebeca C. Martinez, Chief Justice

Sitting: Rebeca C. Martinez, Chief Justice
Beth Watkins, Justice
Liza A. Rodriguez, Justice

Delivered and Filed: September 15, 2021

AFFIRMED

Appellant A.A. (“Father”) appeals the trial court’s final order in a suit affecting the parent-

child relationship designating him as a possessory conservator rather than a managing conservator

of his child, J.G.I.G. 1 We affirm.

BACKGROUND

J.G.I.G. was born in January 2017. In July 2019, the Texas Department of Family and

Protective Services (the “Department”) petitioned for removal of J.G.I.G., then two years old,

while he was living with his mother, L.D.A. (“Mother”). It was reported that Mother smoked

marijuana daily, that she would leave J.G.I.G. unsupervised, that J.G.I.G. cut himself with a razor

1
To protect the identity of the minor child, we refer to the parents and the child by their initials. See TEX. FAM. CODE
ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2).
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due to poor supervision, and that Mother had not taken J.G.I.G. to any medical appointments in

the three months prior to the report. The Department also had concerns about Father because he

was not involved in J.G.I.G.’s life, was living with his girlfriend (“Girlfriend”) who had pending

criminal charges at the time, and was unwilling to have Girlfriend move out so that J.G.I.G. could

live with him. After removal, the Department was designated J.G.I.G.’s temporary managing

conservator, and J.G.I.G. was placed with his maternal aunt (“Aunt”). In July 2020, the case

proceeded to a bench trial. The Department sought termination of both Mother’s and Father’s

parental rights.

The Department’s removing caseworker, Beverly Garza, testified that at the time of

removal and for several months after, it was not safe for J.G.I.G. to be under the control or care of

Mother or Father. She testified that Father was asked to come up with a plan to ensure the safety

of J.G.I.G. but was unable to do so. The Department’s conservatorship caseworker, Briana Booth,

testified that there were concerns with Father’s level of participation in his parent-child visits

because Father was absent for the first year and a half of J.G.I.G.’s life. When Father eventually

began to engage in visits, he did not bond with J.G.I.G. Booth stated that Father missed several of

his visits with J.G.I.G. On one occasion, Father left a visit because he was upset that Girlfriend

was not able to participate. Booth stated that Father had the opportunity to have J.G.I.G. placed

with him at the beginning of the case, but it did not happen because Father was not willing to have

Girlfriend, who faced criminal charges at the time, move out of his home. To Booth, this was

troublesome because Father was the primary provider in his household and J.G.I.G. would be

under the care of Girlfriend while Father was working. Due to the violent nature of Girlfriend’s

charges and her failure to participate in the actions required to determine the safety of Father’s

home, the Department believed Girlfriend posed a threat to J.G.I.G.

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Booth testified that J.G.I.G had been staying with Aunt since the beginning of the case,

was flourishing there, and had a strong bond with Aunt’s family. Booth also testified that even if

the court decided the Department failed to prove its case for termination of parental rights as to

both parents, it still would want J.G.I.G. to continue in the care of Aunt because it was not safe for

him to return to the care of Mother or Father. Booth testified that if Mother or Father were offered

rights as possessory conservator, the Department would request that any visitation be supervised.

After Booth’s testimony, the parties announced that they agreed to reset the case for several

months to allow Aunt to qualify for Permanency Care Assistance financial benefits and to continue

to offer services to Mother and Father. The trial court announced it would be in recess. On January

22, 2021, trial resumed.

During the second part of trial, J.G.I.G.’s counselor, Elizabeth Milvo, testified that J.G.I.G.

was doing well while living with Aunt, was developing in a healthy manner, and had developed a

bond with Aunt and her family. She testified that J.G.I.G.’s connection with his Aunt and her

home were imperative to his growth and that taking him out of his home would significantly impair

his emotional development. Milvo also testified that Father engaged in only two out of the three

parent-child visits and that J.G.I.G. did not seem attached to Father during these visits. Her

assessment of J.G.I.G. was that he appeared to be a neglected child. She went on to state that

Father did nothing to prepare a safe living situation for J.G.I.G. and was incapable of arranging

any medical appointments for J.G.I.G.

Department caseworker Booth continued her testimony. She explained that Mother had

made domestic violence allegations against Father, and that Father’s failure to intervene in

J.G.I.G.’s life while he was living with Mother before the removal action was a form of neglect.

She further testified that Father refused to take possession of J.G.I.G. when the Department first

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became involved, and that he had failed to complete all of the requirements on his family service

plan, such as individual therapy and a court-ordered drug assessment.

Mother voluntarily relinquished her parental rights in November 2020 and asked the court

to accept that document as grounds for termination of her parental rights. Mother testified that

Father had many opportunities to be involved in J.G.I.G.’s life and failed to do so; she stated that

Father would not pick up J.G.I.G. for various reasons such as preoccupation with his other children

or work. She also described two domestic violence incidents between Father and her. On the first

occasion, Mother and Girlfriend were in a physical fight, and Mother “shoved [Father] and he put

his hands around [Mother’s] throat.” During the second incident, Father confronted Mother in his

home while fighting about J.G.I.G. and Father’s other children. Father “pulled [her] from [her]

hair” while J.G.I.G. was laying down with her. Father’s brother eventually took J.G.I.G. and the

other children out of the room while Father “just tried pinning [Mother] down and pulling [her]

hair.” Mother then stated that she tried to defend herself and they “ended up on the floor, [and

Father] . . . was on top of [her on] the floor.”

Father explained that he was not part of J.G.I.G.’s life because of Mother’s involvement in

an abusive relationship with her boyfriend at the time. He testified that Mother’s boyfriend was

constantly calling and making threats, which made it impossible for Father to pick up J.G.I.G.

without being threatened. Father stated that because of this, he felt the best decision was “just to

avoid everything” and “push [him]self away from that.” Father discussed the two domestic

violence incidents Mother testified about and admitted that during the first incident, he grabbed

Mother on the waist and pulled her back, but “it wasn’t in a way to be physically abusive towards

her. It was to stop the fight that was going on.” For the second incident, Father testified that there

was a confrontation between him and Mother, but that it was only verbal and there was no physical

contact or force other than slamming doors and yelling at each other. He conceded that he was

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late to most of the parent-child visits with J.G.I.G., but stated it was because of his work

obligations. He testified that his relationship and involvement with J.G.I.G. had been slowly

improving and that he now had a bond with J.G.I.G. Father testified that he and Girlfriend could

provide J.G.I.G. with a safe and stable environment and that he was in the process of looking for

a home larger than his current one-bedroom apartment. He stated he would be willing to pay $100

a month if Aunt and her husband (“Uncle”) were appointed permanent managing conservators of

J.G.I.G.

After the trial concluded, the trial court signed a final order terminating Mother’s parental

rights and appointing Aunt and Uncle as J.G.I.G.’s permanent managing conservators and Father

as possessory conservator. The trial court found that appointing Father as managing conservator

would not be in the best interest of J.G.I.G. because it would significantly impair the child’s

physical health or emotional development, and that appointing Aunt and Uncle as permanent

managing conservators was in the best interest of J.G.I.G. The trial court granted Father possession

of and access to J.G.I.G. at times mutually agreed upon in advance by the parties. In the absence

of mutual agreement, Father would have visits on the first and third Saturday and Sunday of the

month for two hours at KidShare, or supervised visitation as per mutual agreement with the

managing conservators. The trial court also ordered Father to pay Aunt and Uncle $200 per month

in child support.

Father appeals, arguing the trial court abused its discretion by failing to appoint him as

managing conservator.

STANDARD OF REVIEW

We review a trial court’s determination as to conservatorship for an abuse of discretion.

See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). “Under that standard, legal and factual

sufficiency of the evidence are not independent grounds for asserting error, but are relevant in

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assessing whether the requisite abuse of discretion is present.” In re E.M.T., No. 04-18-00805-

CV, 2019 WL 1370323, at *2 (Tex. App.—San Antonio Mar. 27, 2019, no pet.) (mem. op.). “A

trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any

guiding rules or principles.” In re M.G.N., 491 S.W.3d 386, 406 (Tex. App.—San Antonio 2016,

pet. denied). A trial court does not abuse its discretion if it bases its decisions on conflicting

evidence or if “there is some evidence of substantive and probative character to support the trial

court’s decision.” In re J.J.G., 540 S.W.3d 44, 55 (Tex. App.—Houston [1st Dist.] 2017, pet.

denied). We defer to the trial court’s credibility determinations, review the evidence in the light

most favorable to the order, and indulge every presumption in favor of the trial court’s ruling. In

re E.M.T., 2019 WL 1370323, at *2; In re I.G.W., No. 04-17-00161-CV, 2018 WL 3265292, at *1

(Tex. App.—San Antonio July 5, 2018, no pet.) (mem. op.).

APPLICABLE LAW

A managing conservator is the person or entity who, by court order, has been awarded

custody of a child and may determine the child’s primary residence. See TEX. FAM. CODE ANN.

§ 153.371 (1), (10); In re C.A.M.M., 243 S.W.3d 211, 215 n.7 (Tex. App.—Houston [14th Dist.]

2007, no pet). The managing conservator has nearly sole authority to make decisions for the child.

See TEX. FAM. CODE ANN. § 153.371. A managing conservator must be (1) a parent, (2) a

competent adult, (3) the Department, or (4) a licensed child-placing agency. Id. § 153.005(b). The

trial court is required to appoint a parent as sole managing conservator or both parents as joint

managing conservators unless it finds that appointment of one or both parents as managing

conservator would not be in the best interest of the child because the appointment would

significantly impair the child’s physical health or emotional development. Id. § 153.131(a).

There is a rebuttable presumption that appointment of the parent of a child as managing

conservator is in the best interest of the child, but the presumption is removed upon a finding of a

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history of family violence involving the parents. Id. § 153.131(b). The party seeking appointment

of a non-parent as managing conservator bears the burden to rebut the presumption in favor of the

child’s parents. In re K.S., 492 S.W.3d 419, 427 (Tex. App.—Houston [14th Dist.] 2016, pet.

denied). The nonparent may rebut the presumption with affirmative proof, by a preponderance of

the evidence, that appointing the parents as managing conservator would significantly impair the

child, either physically or emotionally. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990);

see TEX. FAM. CODE ANN. § 153.131(a). Usually, the nonparent must identify some act or

omission committed by the parent that demonstrates that naming the parent as managing

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

TEX. FAM. CODE ANN. § 153.131(a); In re S.T., 508 S.W.3d 482, 491–92 (Tex. App.—Fort Worth

2015, no pet.). Evidence of acts or omissions that may constitute significant impairment include,

but are not limited to, abandonment of a child, a failure to support the child, and a failure to remove

a child from an unstable environment. In re R.F., Jr., No. 04-17-00582-CV, 2018 WL 1308542,

at *2 (Tex. App.—San Antonio Mar. 14, 2018, no pet.) (mem. op.); see In re C.R.T., 61 S.W.3d

62, 67 (Tex. App.—Amarillo 2001, pet. denied) (holding that evidence of mother’s drug problem,

abandonment of her children, failure to provide support, and dependence upon her parents for her

well-being evinced potential impairment of health and emotional development sufficient to justify

the appointment of a third-party as managing conservator instead of a parent).

DISCUSSION

Here, the trial court found appointment of Father as managing conservator would not be in

the best interest of J.G.I.G. because the appointment would significantly impair J.G.I.G.’s physical

health or emotional development. Father contends there is insufficient evidence to support this

finding. We hold that there is substantial evidence that Father’s appointment as managing

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conservator would significantly impair J.G.I.G.’s physical health and emotional development. See

TEX. FAM. CODE ANN. § 153.131(a).

The evidence at trial shows that Father did not have contact with and failed to provide

support for J.G.I.G. for the first year and a half of his life. See In re R.F., Jr., 2018 WL 1308542,

at *4 (using evidence that father had no contact with child and provided no emotional support for

approximately three years as evidence to support the trial court’s finding that appointing father as

a managing conservator would significantly impair the child’s physical health or emotional

development). The Department’s conservatorship caseworker testified that Father’s absence from

J.G.I.G.’s life has made it difficult for he and J.G.I.G. to have a bond. See In re J.C., 346 S.W.3d

189, 194 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (“As a reviewing court, we may consider

concepts of psychological parenting, bonding, and the depth of attachments to parental figures in

the context of the evidence presented.”).

Father also failed to intervene or provide a stable home for J.G.I.G. when he was aware of

the conditions J.G.I.G. lived in with Mother. See Thomas v. Thomas, 852 S.W.2d 31, 36 (Tex.

App.—Waco 1993, no writ) (holding trial court did not abuse its discretion by failing to appoint

child’s father as a managing conservator where father knew about mother’s drug and alcohol

abuse, yet father “did not intervene for over three years and provided no support.”). J.G.I.G. was

removed from Mother due to allegations that Mother smoked marijuana daily, would leave J.G.I.G.

unsupervised, that J.G.I.G. cut himself with a razor due to poor supervision, and that Mother had

not taken J.G.I.G. to a medical appointment in three months. The Department’s caseworker

testified that Father was aware of these conditions and failed to intervene or provide a home for

J.G.I.G. because he was not willing to meet the Department’s request of having Girlfriend, who

faced criminal charges, move out of his home. Father testified that he was not a part of J.G.I.G.’s

life when J.G.I.G. lived with Mother prior to removal because of Mother’s involvement in an

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abusive relationship with her boyfriend at the time. He testified that Mother’s boyfriend was

constantly calling and making threats, and that because of this, he felt the best decision was “to

avoid everything” and not interact with J.G.I.G. See In re R.F., Jr., 2018 WL 1308542, at *3–4

(using evidence that father knew child was in a household with mother who used or sold drugs and

that father failed to make any attempts to regain custody of child as evidence supporting trial

court’s finding that appointing father as managing conservator would significantly impair child’s

physical health or emotional development); cf. Thomas, 852 S.W.2d at 36 (“[A]llowing a child to

remain in an unstable environment is the type of conduct that can significantly impair emotional

development.”).

The evidence also shows that, even after the first year and a half of J.G.I.G.’s life, Father

was not involved in J.G.I.G.’s life and failed to complete the requisite services in order to have

possession of J.G.I.G. Cf. In re Hidalgo, 938 S.W.2d 492, 497 (Tex. App.—Texarkana 1996, no

writ) (holding evidence that mother, who was separated from child at birth, who did not have

contact with child for several years, and who did not take full advantage of her opportunities to

bond with child, supported trial court’s conclusion that appointment of mother as sole managing

conservator “would significantly impair the emotional development of the child.”). Mother

testified that Father had many opportunities to be involved in J.G.I.G.’s life, but he failed to do so.

One of the Department’s caseworkers testified that although Father engaged in some services, he

and Girlfriend failed to attend a sufficient number of therapy sessions to determine the safety of

the family dynamics or the structure of the household. She also testified that Father failed to

complete all the requirements on his family service plan, such as individual therapy and a court-

ordered drug assessment.

The trial court heard testimony that Father had a history of domestic violence, which

sometimes occurred in front of J.G.I.G. See TEX. FAM. CODE ANN. § 153.131(b) (“A finding of a

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history of family violence involving the parents of a child removes the presumption” that

appointment of the parents as joint managing conservators is in the best interest of the child).

Mother described two domestic violence incidents between her and Father. While Father

presented some conflicting testimony on the incidents and how they occurred, the trial court was

able to base its decision on Mother’s testimony. See In re T.D.C., 91 S.W.3d 865, 878 (Tex.

App.—Fort Worth 2002, pet. denied) (“An abuse of discretion does not occur where the trial court

bases its decisions on conflicting evidence.”) (citation omitted).

Finally, the trial court heard testimony that J.G.I.G. was thriving with Aunt, who was

appointed managing conservator with Uncle. J.G.I.G.’s counselor testified that J.G.I.G. was doing

well in his foster home with Aunt, was developing in a healthy manner, and was attached to Aunt’s

family. She testified that it was imperative for J.G.I.G.’s growth that he maintain this connection

with Aunt and her household and that taking him out of his home would significantly impair his

emotional development. See In re C.R.T., 61 S.W.3d at 67–68 (affirming trial court’s appointment

of non-parent as managing conservator because of evidence of parent’s neglect, along with

evidence that non-parent provided stability, support, and a positive environment for the child).

Evidence of Father’s neglect and history of domestic violence coupled with evidence of

stability, support, and nourishment offered by Aunt and Uncle support the trial court’s finding that

appointing Father as managing conservator would significantly impair J.G.I.G.’s physical health

or emotional well-being. See TEX. FAM. CODE ANN. § 153.131; see also In re R.F., Jr., 2018 WL

1308542, at *4. Therefore, we cannot say that the trial court’s conservatorship determinations

were arbitrary, unreasonable, or an abuse of discretion.

CONCLUSION

We affirm the trial court’s judgment.

Rebeca C. Martinez, Chief Justice

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