IN THE
TENTH COURT OF APPEALS
No. 10-14-00352-CV
IN THE INTEREST OF R.A., A CHILD
From the 85th District Court
Brazos County, Texas
Trial Court No. 13-000921-CV-85
MEMORANDUM OPINION
Lathomas Grays appeals from a judgment that named Maria Lopez, a non-
parent, sole managing conservator of his child, R.A. and dismissed the Department of
Family and Protective Services as the child’s managing conservator. Grays complains
that the trial court erred by granting conservatorship to Lopez because she had no
affirmative pleadings on file and that the trial court erred by refusing to name him the
managing conservator of R.A. because the evidence presented did not overcome the
parental presumption. Because we find no reversible error, we affirm the judgment of
the trial court.
The Department became the managing conservator of R.A. and his four siblings
after R.A. was severely burned and his mother and boyfriend failed to seek medical
treatment for almost a day. R.A. and his four siblings were placed with Lopez, the
children’s maternal great-aunt, during the investigation by the Department. Grays and
another man were listed in the Department’s original petition filed in April of 2013 as
alleged fathers of R.A. Grays was served in April of 2013 and submitted to a paternity
test in August. The paternity test established that Grays is R.A.’s father and the results
were filed with the court and made known to Grays in September 2013.
Grays did not visit with R.A. or begin completing his service plan until January
of 2014. The statutory dismissal deadline was extended by 180 days to the end of
October 2014. Grays complied with his service plan, although his therapist testified that
he had not completed therapy. At the final hearing, the Department did not seek
termination of the parent-child relationship but asked that Lopez be named R.A.’s sole
managing conservator, Grays as a possessory conservator, and that the Department be
dismissed. The trial court granted the Department’s relief as requested.
Pleadings
In his first issue, Grays complains that the trial court erred by naming Lopez the
sole managing conservator of R.A. because she had no affirmative pleadings on file and
did not present any evidence. Grays contends that it was Lopez’s burden to prove that
she should be named the managing conservator and that the Department’s pleadings
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and evidence were insufficient to award Lopez the relief that she requested. Grays does
not argue that the Department’s pleadings were ineffective or that he did not have
notice that the Department was attempting to have the trial court name Lopez the sole
managing conservator of R.A. Rather, he contends that because the Department did not
represent Lopez in the proceedings and Lopez presented no evidence on her own
behalf, Lopez did not meet her burden of proof to be named R.A.’s sole managing
conservator.
Section 161.205 of the family code states that in the event termination of the
parent-child relationship is not ordered by the trial court in a suit seeking termination,
the trial court shall either deny the petition or “render any order in the best interest of
the child.” TEX. FAM. CODE ANN. § 161.205 (West 2014). And, section 153.002 states that
the child's best interest "shall always be the primary consideration of the court in
determining the issues of conservatorship and possession of and access to the child."
TEX. FAM. CODE ANN. § 153.002. Further, section 263.3026 authorizes the Department to
seek as its permanency plan goal that a relative be named the permanent managing
conservator of the child. TEX. FAM. CODE ANN. § 263.3026(a)(3) (West 2014).
Additionally, section 263.404 of the family code gives the trial court the authority to
name the Department as the managing conservator only if the trial court finds that (1)
appointment of a parent would not be in the child’s best interest because it would
significantly impair the child’s physical health or emotional development and (2) that it
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would not be in the best interest of the child to appoint a relative of the child as
managing conservator. TEX. FAM. CODE ANN. § 263.404(a) (West 2014). Section
263.404’s language demonstrates that a relative should be appointed as managing
conservator before the Department should be so named.
The Department’s pleadings asked, in relevant part, that Lopez be named the
managing conservator of the children in accordance with the Department’s stated
permanency plan. Thus, the burden of proof was on the Department, as petitioner, to
prove that Grays should not be named the managing conservator and that Lopez
should be. The Department did seek to add Lopez as a party prior to the final hearing;
however, Lopez did not participate in the final hearing, although it appears from the
record that she was present at the final hearing. R.A. had been placed with Lopez by
the Department during the pendency of the proceedings and was seeking its
permanency goal, which was placement with Lopez.
Grays does not present any authority that in a proceeding involving the
Department, the relative or other person with whom the child is placed is required to
file pleadings or to present evidence on their own behalf in order for the trial court to
name them the managing conservator of the child, and we decline to impose such a
requirement. The Department presented evidence that it was not in R.A.’s best interest
that Grays be named his managing conservator because it would significantly impair
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his physical health or emotional development and evidence that it would be in the best
interest of R.A. that Lopez be so named.
We hold that the trial court had statutory authority under the applicable family
code provisions, when read as a consistent and logical whole, to find that Grays was not
at the time of trial an appropriate managing conservator and also to name Lopez as
R.A.’s managing conservator without the necessity of Lopez presenting evidence or
otherwise participating in the trial. See In the Interest of Z.G., No. 11-11-00078-CV, 2012
Tex. App. LEXIS 1849 at *9-10 (Tex. App.—Eastland Mar. 8 2012, no pet.) (Trial court
had the authority to appoint a paternal cousin as the child's managing conservator
without the cousin’s intervention because: (1) the trial court's jurisdiction was invoked
by the Department's pleadings requesting that the mother's parental rights be
terminated and that the children be permanently placed with a relative or other suitable
person as the permanent sole managing conservator; (2) the child had been placed with
the cousin prior to trial; (3) the cousin was identified in the permanency plan as an
appropriate relative caregiver for the child; and (4) it was the Department's
recommendation that the child remain with the cousin and that the cousin be appointed
as the child's conservator.). We overrule issue one.
Parental Presumption
In his second issue, Grays complains that the trial court abused its discretion by
naming Lopez the sole managing conservator of R.A. because the evidence was legally
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and factually insufficient to rebut the statutory parental presumption. The level of
proof necessary to support a trial court's conservatorship decision is far different than
the level to terminate a parent's rights to his child. In re J.A.J., 243 S.W.3d 611, 616 (Tex.
2007). Unlike the clear-and-convincing standard used in termination decisions, a court's
decision related to conservatorship is governed by a preponderance-of-the-evidence
standard, is "subject to review only for abuse of discretion, and may be reversed only if
the decision is arbitrary and unreasonable." Id. In conservatorship issues, the court's
primary consideration always is the child's best interest. TEX. FAM. CODE ANN. § 153.002
(West 2014).
In analyzing the best interest of a child, we use the Holley factors as a guide,
which include, but are not limited to, (1) the desires of the child, (2) the emotional and
physical needs of the child now and in the future, (3) the emotional and physical danger
to the child now and in the future, (4) the parental abilities of the individuals seeking
custody, (5) the programs available to assist these individuals to promote the best
interest of the child, (6) the plans for the child by these individuals or by the agency
seeking custody, (7) the stability of the home or proposed placement, (8) the acts or
omissions of the parent that may indicate that the existing parent-child relationship is
not a proper one, and (9) any excuse for the acts or omissions of the parent. Holley v.
Adams, 544 S.W.2d 367, 371-72 (Tex. 1976).
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When a nonparent seeks sole managing conservatorship against a parent, the
Texas Family Code presumes that appointing the parent as the managing conservator is
in the child's best interest. TEX. FAM. CODE ANN. § 153.131 (West 2014). However, this
presumption may be rebutted by showing that the appointment of the parent as
managing conservator would not be in the child's best interest because it would
significantly impair the child's physical health or emotional development. Id.
As evidence, the Department was required to show specific acts or omissions by
Grays that support a logical inference that some specific, identifiable behavior or
conduct of his will probably result in harm to the child. Lewelling v. Lewelling, 796
S.W.2d 164, 167 (Tex. 1990) (recognizing that statute requires evidence of specific acts or
omissions that would result in harm to the child). There must have been direct
evidence presented either that placement of R.A. with Grays would significantly impair
R.A.'s physical health or emotional development or that allows the factfinder to
reasonably reach that conclusion. In re De La Pena, 999 S.W.2d 521, 528 (Tex. App.—El
Paso 1999, no pet.). The focus is on the effect of the placement, not on the circumstances
that produced the placement. In re R.T.K., 324 S.W.3d 896, 902 (Tex. App.—Houston
[14th Dist.] 2010, pet. denied).
The Department argues that the evidence was sufficient to rebut the parental
presumption. Evidence was presented that Grays was the father of three other
daughters, ages 18, 17, and 8 at the time of trial, from two different mothers, namely
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Carr and Silva, with whom he had been involved in a dating relationship. During his
relationships with them, Grays was arrested and convicted of family violence offenses
against both Carr and Silva. The altercation with Carr occurred while she was
pregnant. Grays and R.A.’s mother were not ever in a dating relationship. Grays had
also been involved off and on with another woman, Thomas, for approximately two
years prior to the final hearing who also accused him of domestic violence. Allegedly,
Thomas had also attempted to run over Grays with a vehicle in anger during the
pendency of this case, but he reconciled with her afterward. Grays contended that he
and Thomas had broken up approximately one month before the final hearing because
his family refused to continue supporting him if he stayed involved with her.
Grays had a criminal history spanning many years which included a conviction
for endangering a child in Missouri, drug possession, and distributing and
manufacturing drugs. His most recent conviction was in 2009 for the assault against
Silva, and a protective order was entered against him for that incident. Silva’s affidavit
in support of the protective order claimed that Grays had punched and kicked her until
she lost consciousness; however, at the final hearing, Silva contended that she had lied
in the affidavit and that Grays did not assault her. Grays denied ever physically
harming anyone and claimed that he was innocent even though he had pled guilty to
the offenses.
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Grays alleged that he was not in a relationship at the time of the final hearing.
However, the trial court reasonably could have considered that Grays's pattern of
engaging in violent personal relationships would continue in the future. See Walker v.
Tex. Dep't of Family & Protective Servs., 312 S.W.3d 608, 617 (Tex. App.—Houston [1st
Dist.] 2009, pet. denied); see also In re J.O.A., 283 S.W.3d at 346 (deferring to trial court to
weigh evidence of recent improvements, especially of short duration, against probative
value of irresponsible choices).
At the time of the final hearing, Grays was employed by his mother, who owned
her own business. Grays was residing in his mother’s home in Bryan which the
Department had determined was appropriate for a child. He did not have primary
custody of any of his other children, although his 8 year old daughter visited him often.
Grays found out that the paternity testing established that he was R.A.’s father in
August of 2013, but did not start working on his service plan until January of 2014 when
he relocated from Houston to Bryan. At that time, the Department’s permanency plan
already was to permanently place the children with Lopez. Grays attended counseling
and his counselor testified that, although he had not completed therapy, he believed
that Grays should be awarded managing conservatorship of R.A. However, the
therapist acknowledged that Grays had not been entirely forthcoming about his
involvement with Thomas up until a month before the final hearing.
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R.A. was hospitalized in Galveston due to his injuries that led to the removal
from his mother. During the time that R.A. was hospitalized, even after Grays had been
determined to be R.A.’s father, Grays did not contact the hospital or attempt to visit
R.A. He did begin visits after he moved to Bryan, and at the time of trial, Grays had
unsupervised possession of R.A. every Saturday from 9:00 a.m. until 6:00 p.m.
R.A. was placed in Lopez’s home with his other four siblings in a three bedroom
mobile home in Bryan. Lopez and her 11 year-old son resided in the home as well.
Lopez intended to move to a bigger home on her property as soon as the case was
resolved. Lopez’s mother resided across the street from Lopez and assisted Lopez as
needed with the care of the children. Grays testified that if he were named R.A.’s
managing conservator, he would allow R.A. to visit with his siblings whenever
possible; however, he also testified that he was upset with Lopez and her mother for not
doing more to prevent R.A.’s injuries. Grays’s home was down the street from Lopez’s
home.
R.A. had resided with Lopez at one time prior to the removal and from the time
he was released from the hospital. R.A. considered Lopez to be his mother and he was
very bonded to both Lopez and his siblings. Both the Department’s caseworker and the
guardian ad litem testified that it would be extremely damaging emotionally to R.A. to
remove him from what was close to the only home he had ever known. R.A. had lived
with Lopez for all of his life except for about five months. Additionally, the caseworker
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and Grays’s therapist testified to the physical and emotional damage that can be caused
to children from exposure to domestic violence.
Viewing the entire record before the trial court, and being mindful that the trial
court was in the best position to observe the demeanor and personalities of the
witnesses that cannot be discerned by mere reference to the record, In re N.A.S., 100
S.W.3d 670, 673 (Tex. App.—Dallas 2003, no pet.), we find that the trial court’s
determination that the parental presumption was rebutted was not outside of the zone
of reasonable disagreement. Further we find that the trial court did not abuse its
discretion by naming Lopez as R.A.’s sole managing conservator. We overrule issue
two.
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 Scoggins
Affirmed
Opinion delivered and filed June 11, 2015
[CV06]
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