dissenting.
Michael Don Sherrill presents a question of law: May a trial court refuse to appoint a natural parent of a child as a joint managing conservator in the absence of a finding that such appointment “would significantly impair the child’s physical health or emotional development”? Tex. Fam.Code Ann. § 153.131(a) (Vernon Supp. 2002). Because the majority fails to place the burden of obtaining a finding on the party with the burden of proof, I dissent to the section of the opinion entitled “Joint Managing Conservatorship.”
The jury refused to find that Sherrill’s parental rights should be terminated. Based on that, Sherrill, as the undisputed biological father, continues to enjoy a statutory presumption that he is entitled to be a managing conservator. Id. “[U]nder Chapter 153, the nonparent can rebut the parental presumption by showing that the appointment of the parent would significantly impair the child’s health or development.” See In re V.L.K, 24 S.W.3d 338, 341 (Tex.2000) (citing Brook v. Brook, 881 S.W.2d 297, 298 (Tex.1994)). Section 153.131 specifically provides that the presumption is overcome on a finding that appointment “would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.” Tex. Fam.Code Ann. § 153.131(a).
The charge submitted to the jury made no such inquiry, and the majority faults Sherrill for not objecting to the charge.1 But Sherrill did not have the burden to establish his right to be a managing conservator; the Bentons had the burden of overcoming the presumption by obtaining the necessary finding under section 153.131. See id.; Brook, 881 S.W.2d at 298 (“Before a nonparent may be appointed as sole managing conservator or two nonpar-ents as joint managing conservators, however, a higher standard must be satisfied, requiring proof that appointment of the parent or parents would significantly impair the child’s health or development.”) (quoting In re W.G.W., 812 S.W.2d 409, 413 (Tex.App.-Houston [1st Dist.] 1991, no writ) (“The party seeking to bar the natural parent from appointment as managing conservator! ] .... must prove that the appointment of the parent ... would significantly impair the child’s health or emotional development.”)). Because the Ben-tons did not obtain such a finding, the court erred as a matter of law in failing to appoint Sherrill as a joint managing conservator.
It is now beyond dispute that a parent’s interest in his child is of constitutional dimension. See In re R.G., 61 S.W.3d 661, 666 (Tex.App.-Waco 2001, no pet. h.). A parent enjoys a statutory presumption that he is entitled to be appointed a managing conservator. Tex. Fam.Code Ann. § 153.131. The effect of the majority’s holding is to allow this parent’s right-a right of constitutional dimension, a right recognized by a statutory presumption-to be procedurally forfeited. In that I cannot join.
In the Rodriguez case cited by the majority, the jury was specifically charged on the standard set forth in section 153.131.2 In Interest of Rodriguez, 940 S.W.2d 265, *462269 (Tex.App.-San Antonio 1997, writ denied). This is evident from the court’s statement: “The jury was expressly instructed that they should name Mark [the natural father] as managing conservator unless they found that would not be in Madison’s best interest because it would significantly impair her physical health or emotional development.” Id. Even the footnote cited by the majority says: “[T]he evidence recited above is plainly sufficient to support the jury’s finding that naming Mark as Madison’s managing conservator would not be in her best interest because it would significantly impair her physical health or emotional development.” Id. at 274 n. 2 (emphasis added). Here, the question asked of the jury does not address the section 153.131 standard. The reliance on Rodriguez is misplaced.3
The majority’s discussion of section 153.373 of the Family Code is likewise misplaced. Tex. Fam.Code Ann. § 153.373 (Vernon 1996). Sherrill’s citation of that section in his brief was merely to point out that no other provision of the Family Code could justify the trial court’s failure to appoint him as a managing conservator. Whether he voluntarily relinquished his child to the Bentons for a year was never at issue in the trial court; no one ever asserted that he did.
A judgment appointing Sherrill and the Bentons as joint managing conservators is entirely consistent with the jury’s verdict, which (1) refused to terminate Sherrill’s parental rights; (2) terminated the natural mother’s parental rights; (3) found that the Bentons should be appointed joint managing conservators; and (4) found that the Bentons should determine the child’s primary residence. The fifth finding, that Sherrill should be appointed a possessory conservator, is immaterial in light of the statutory presumption and the failure of the Bentons to obtain the finding necessary to overcome that presumption.
I would reform the judgment to appoint Sherrill and the Bentons as joint managing conservators. Because the majority does otherwise, I respectfully dissent.
. The specific question did not ask about Sherrill by name or identity. It merely asked the jury to fill in a blank line with the names of the persons it found should be named joint managing conservators.
. The Rodriguez court acknowledged: "[T]he burden is on the non-parent to initially produce evidence and make the showing required by section 153.131(a) by a preponderance of the evidence.” In Interest of Rodriguez, 940 S.W.2d 265, 271 (Tex.App.San Antonio 1997, writ denied).
. The finding is not sufficient under the statute, not to mention the “Lewelling standard,” i.e., the requirement that the nonparent "identify some act or omission committed by [the parent] which demonstrates that naming [the parent] as managing conservator will significantly impair [the child’s] physical health or emotional development.” See In Interest of Rodriguez, 940 S.W.2d 265, 272 (Tex.App.-San Antonio 1997, writ denied) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 168 (Tex.1990)). The San Antonio Court rejects the Lewelling standard as part of the section 153.131 requirement. Id. at 272-73. The El Paso Court discussed Lewelling in In re De La Pena, an appeal from a bench-trial in which the trial court refused to disqualify the natural father in favor of his sister, who sought sole managing conservatorship. In re De La Pena, 999 S.W.2d 521, 528 (Tex.App.-El Paso 1999, no pet.).