COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-11-00107-CV

IN THE MATTER OF THE

GUARDIANSHIP OF

CECILIA T. COVINGTON,

AN INCAPACITATED PERSON

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FROM PROBATE COURT NO. 2 OF TARRANT COUNTY

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MEMORANDUM OPINION1 ON REHEARING

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We have considered appellants Franklin E. Covington III’s (Frank) and 

Lucila Covington’s (Chila) motion for rehearing and motion for reconsideration en 

banc. We deny both the motions but withdraw our February 9, 2012 opinion and 

substitute the following.

 

1See Tex. R. App. P. 47.4.
2

In one issue, the Covingtons appeal the trial court’s order denying their 

application for reinstatement as guardians of their incapacitated daughter, Cecilia 

T. Covington (Ceci). We affirm the trial court’s judgment.

Background Facts

Ceci is a forty-year-old woman with Down Syndrome. Her parents, the 

Covingtons, sought and were granted guardianship of Ceci in 2003. In 2006, 

Ceci moved into a group home for disabled adults known as Sonnet. Sonnet is 

run by Champion Services.

In 2008, Champion employees became concerned that Ceci’s mental 

health was deteriorating. Ceci complained of headaches during the night and 

would often stay awake screaming. Champion staff notified the Covingtons that 

Ceci was having problems such as “flat affect, not smiling, [and] aggression.” In 

early 2009, Ceci began hiding screwdrivers in her room and laying marbles from 

a Chinese checkers game in a line at the bottom of the door to her room. One 

day, Ceci hit another group home resident because he was sitting in a van where 

Ceci wanted to sit. Ceci had imaginary friends that she spoke to, and Champion 

staff believed she was spending more and more time talking to them.

Worried that Ceci’s behaviors were increasing in frequency and severity, 

Champion began requesting that the Covingtons consent to have Ceci evaluated 

by a psychiatrist. The Covingtons refused, believing that there was a “physical” 

source for Ceci’s pain. Champion also discussed the screwdrivers and marbles 

with the Covingtons, who did not feel that they were a concern. The Covingtons 
3

told Champion that Ceci’s “booby-traps” were “only showing her frustration level 

at being bothered constantly” by Champion staff.

A meeting with Champion staff and the Covingtons was held on June 24, 

2009. Champion employees gave the Covingtons an agenda for the meeting, 

listing their concerns about Ceci’s health. The first topic listed was a request that 

the Covingtons consent to a psychiatric evaluation for Ceci. The Covingtons 

responded in a follow-up email, “Psychiatric evaluation will not be performed at 

this time.” The second topic involved administration of medicines. One of the 

requests was that “[f]amilies cannot bring [over-the-counter] medications and 

supplements or pharmaceuticals into the [group home] without written doctor’s 

orders.” The Covingtons disagreed that they could not bring supplements into 

the home. Another request was that “[t]he nurse must be notified before 

administering any [over-the-counter] medicines and supplements.” The 

Covingtons responded, “Guardians disagree, will not comply.”

In July 2009, the trial court appointed a guardian ad litem for Ceci without 

notice to the Covingtons. The guardian ad litem then moved to have the 

Covingtons removed as Ceci’s guardians without notice to them, claiming that 

they cruelly treated Ceci and neglected to maintain her as liberally as her means 

permitted. See Tex. Prob. Code Ann. § 761 (West Supp. 2011) (listing the 

grounds for which a guardian may be removed). Specifically, the guardian ad 

litem alleged that
4

1. The Ward herein evidences frequent and repeated aggressive 

emotional outbursts, and has been repeatedly observed talking to 

“imaginary” people. The recommendation of Group Home Staff was 

that the Ward receive a complete psychiatric evaluation. The 

Guardians both refused, without any expressed reason or valid 

justification. It appears that the Ward might benefit from such 

evaluation in better understanding whatever may truly be causing 

these behaviors.

2. The Ward has returned to the Group Home from several home 

visits with the Guardians and has repeatedly brought screwdrivers, 

as weapons, because of an imagined fear that someone is taking 

her belongings. When advised of this unacceptable behavior, the 

Guardians re-affirmed that they did not see any risk in this behavior 

[and] would continue to supply the Ward with such weapons.

3. Medication was prescribed for the Ward, namely [Z]oloft, and the 

Guardians discontinued and refused to allow the Ward to receive the 

prescribed medication, against medical advice, and without 

explanation or justification.

4. Guardians continue to self-diagnose the Ward’s medical 

problems as “headaches” and continue to seek therapy and 

diagnosis to validate their own assessment, without any valid 

medical basis, and in contravention of the recommended course of 

evaluation and recommended medical treatment. As a result, the 

Ward continues to suffer and place others at risk with her 

increasingly violent outbursts.

5. The Guardians, in their own letter, stated that they refused to 

comply with the request that ‘Nurse must be notified before 

administering [over-the-counter] medications and supplement[s]” 

Response “Guardians disagree, will not comply[.]”[] Further, the staff 

recommendation that “Families cannot bring supplements[,]”[] 

response “Guardians disagree[.]”[] The actions of the Guardians 

ignore the substantial side effects of many [over-the-counter] drugs 

and dietary supplements, some of which are so severe that the FDA 

has had to seek legislative intervention to stop distribution. Yet, the 

Guardians insist that they would be able to make those decisions 

without even communicating with the staff nurse.
5

After a hearing and without notice to the Covingtons, the trial court found 

that the Covingtons cruelly treated Ceci and neglected to maintain her as liberally 

as her means permit. The trial court also found that the Covingtons “have both 

been proven to be guilty of gross misconduct and gross mismanagement in the 

performance of their duties as Guardian” and ordered their removal without 

notice. It appointed Guardianship Services, Inc. as Ceci’s new guardian.

The Covingtons then filed an application for reinstatement as guardians. 

After a hearing, the trial court found that the Covingtons failed to demonstrate by 

a preponderance of the evidence that they did not engage in the conduct that led

to their removal and denied their application. This appealed followed.

Standard of Review

In their motion for rehearing and their motion for reconsideration en banc, 

the Covingtons argue that we applied the wrong standard of review. They argue 

that their appeal was a no-evidence challenge. We first note that their issue on 

appeal read,

Did Judge King abuse his discretion by denying the Covingtons’ 

application for reinstatement as guardians of their daughter? Stated 

differently does the record reflect by a preponderance of the 

evidence that the Covingtons did not engage in the conduct that was 

alleged by the [guardian ad litem] for their removal?

The Covingtons also stated in their brief, “A guardianship determination is 

reviewed under an abuse-of-discretion standard.” See In re Guardianship of 

Finley, 220 S.W.3d 608, 612 (Tex. App.—Texarkana 2007, no pet.); Thedford v. 

White, 37 S.W.3d 494, 496 (Tex. App.—Tyler 2000, no pet.).
6

We do note that neither of the two cases that the Covingtons cite (Finley

and Thedford), although they are the only two cases that we have found 

referencing the reinstatement statute, see Tex. Prob. Code Ann. § 762 (West 

Supp. 2011), actually review the plaintiff’s reinstatement claim under section 762. 

However, we believe the abuse of discretion standard applies here. The trial 

court’s determination of reinstatement rests on whether it is satisfied by a 

preponderance of the evidence that the applicant did not engage in the conduct 

that directly led to the applicant’s removal. See Act of May 30, 1993, 73rd Leg., 

R.S., ch. 957, § 1, 1993 Tex. Gen. Laws 4081, 4123 (amended 2011) (current 

version at Tex. Prob. Code Ann. § 762 (West Supp. 2011)).

The Covingtons argued in their brief on appeal that there was no evidence 

to support some of the trial court’s findings, which we construed as a challenge to 

the legal sufficiency of the evidence.2 See Uniroyal Goodrich Tire Co. v. 

Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040 (1999) 

(noting that a legal sufficiency challenge is an argument that (1) the record 

 

2

In fact, this section of the Covington’s argument begins, “The Covingtons 

challenge the legal and factual sufficiency of the evidence to support the 

following findings of fact and the legal sufficiency of the evidence to support the 

following conclusions of law: 10a, 10b, 10c, 15, 32, 33, 36, 37, 38, 39, 40, and 

41.” The Covingtons then attempt to transform this appeal of the trial court’s 

decision in the reinstatement hearing to an appeal of the removal itself by 

arguing that “[t]he removal of the Covingtons required clear and convincing 

evidence of their cruel treatment of Ceci. See Tex. Prob. Code Ann. § 761(b).” 

Whether the Covingtons were removed based on clear and convincing evidence 

was not at issue in the reinstatement hearing, nor is it now an issue before this 

court.
7

discloses a complete absence of evidence of a vital fact; (2) the court is barred 

by rules of law or of evidence 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 opposite of a vital 

fact); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of 

Error, 38 Tex. L. Rev. 361, 361–62 (1960) (“The controlling consideration with an 

appellate court in passing on a point of error directed at the state of the evidence 

is not whether the point uses the preferable, or even the proper, terminology, but 

is whether the point is based upon and related to a particular procedural step in 

the trial and appellate process and is a proper predicate for the relief sought.”). 

The abuse of discretion standard includes the legal and factually sufficiency of 

the evidence as “relevant factors in assessing whether the trial 

court abused its discretion.” Brooks v. Brooks, 257 S.W.3d 418, 425 (Tex. 

App.—Fort Worth 2008, pet denied). Thus, a trial court abuses its discretion 

when there is no evidence to support its ruling. D.N.S. v. Schattman, 937 

S.W.2d 151, 155 (Tex. App.—Fort Worth 1997, no writ) (citing Loftin v. Martin,

776 S.W.2d 145, 148 (Tex.1989)). For these reasons, we disagree with the 

Covingtons’ premise that we applied the wrong standard of review.3

 

3

To the extent that the Covingtons’ motion for rehearing and motion for 

reconsideration en banc can be construed to request that we review the trial 

court’s judgment under a different standard than that requested in their appeal, 

we cannot address their new issue. See Wentworth v. Meyer, 839 S.W.2d 766, 

778 (Tex. 1992) (Cornyn, J., concurring) (“A motion for rehearing does not afford 

a litigant an opportunity to raise new issues, especially after the case has been 
8

To determine whether a trial court abused its discretion, we must decide 

whether the trial court acted without reference to any guiding rules or principles; 

in other words, we must decide whether the act was arbitrary or unreasonable. 

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 

835, 838–39 (Tex. 2004). An appellate court cannot conclude that a trial court 

abused its discretion merely because the appellate court would have ruled 

differently in the same circumstances. E.I. du Pont de Nemours & Co. v. 

Robinson, 923 S.W.2d 549, 558 (Tex. 1995); see also Low, 221 S.W.3d at 620. 

An abuse of discretion does not occur when the trial court bases its decisions on 

conflicting evidence and some evidence of substantive and probative character 

supports its decision. Unifund CCR Partners v. Villa, 299 S.W.3d 92, 97 (Tex. 

2009); Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).

Discussion

The Covingtons did not appeal the order removing them as guardians. 

Instead, they sought reinstatement under section 762 of the probate code. 

Section 762, as it read in 2009, stated,

(a) Not later than the 10th day after the date the court signs the 

order of removal, a personal representative who is removed under 

Subsection (a)(6) or (7), Section 761, of this code may file an 

application with the court for a hearing to determine whether the 

personal representative should be reinstated.

 

briefed, argued, and decided on other grounds.”); Morrison v. Chan, 699 S.W.2d 

205, 206–07 (Tex. 1985) (holding that court of appeals did not err in refusing to 

reverse the case on a point raised for the first time in a motion for rehearing).
9

. . . . 

(c) If, at the conclusion of a hearing under this section, the court is 

satisfied by a preponderance of the evidence that the applicant did 

not engage in the conduct that directly led to the applicant’s removal, 

the court shall set aside an order appointing a successor 

representative, if any, and shall enter an order reinstating the 

applicant as personal representative of the ward or estate.

Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 1, 1993 Tex. Gen. Laws 4081, 

4123 (amended 2011) (current version at Tex. Prob. Code Ann. § 762 (West 

Supp. 2011)).

4

 According to the plain language of the statute, the only issue in a 

reinstatement hearing is whether the former guardians “did not engage in the 

conduct that directly led to [their] removal.” Tex. Prob. Code Ann. § 762(c). 

Thus, because the Covingtons proceeded under section 762 instead of an 

appeal of their removal, we do not address whether it was error for the trial court 

to remove them under section 761(c)(4) without the statutorily required notice, 

see id. § 761(c) (requiring personal service of the guardian before removal under 

that subsection), or whether clear and convincing evidence was presented at the 

removal hearing that they cruelly treated Ceci, see id. § 761(b) (requiring proof 

 

4Under the plain language of the statute, section 762 is only available 

when a guardian has been removed under either subsection (6) or (7) of section 

761(a). Tex. Prob. Code Ann. § 762(a). Subsection (6) allows for the removal of 

a guardian who “has misapplied, embezzled, or removed from the state, or is 

about to misapply, embezzle, or remove from the state, all or any part of the 

property committed to the guardian’s care.” Id. § 761(a)(6). Subsection (7) in 

2009 allowed for the removal of a guardian who “has neglected or cruelly treated 

a ward.” Act of May 30, 1993, 73rd Leg., R.S., ch. 957, § 1, 1993 Tex. Gen. 

Laws 4081, 4123 (amended 2011) (current version at Tex. Prob. Code Ann. 

§ 761(a)(7) (West Supp. 2011)). The Covingtons were removed under 

subsections (a)(7), (a)(8), and (c)(4).
10

by clear and convincing evidence for removal under subsection (a)(7)). The only 

question before us is whether the trial court abused its discretion in finding that 

the Covingtons did not prove by a preponderance of the evidence that they did 

not engage in the conduct that directly led to their removal as Ceci’s guardians. 

See id. § 762(c).

The trial court’s judgment states,

The conduct of the Applicants alleged and testified to in the removal 

hearing that directly led to the removal of the Applicants included:

a. Administration of over-the-counter medications and 

supplements to the Ward, and refusing to provide the Group 

Home with information regarding the medications and 

supplements;

b. Refusal to control the behavior of the Ward from 

repeatedly:

1. bringing screwdrivers to the Ward’s room in the 

Group Home following visits to the home of the 

Applicants, despite repeated requests from the 

management of the Group Home to control such 

behavior;

2. setting “booby traps” in the Ward’s room in the 

Group Home, despite clear statements on the part of 

the Ward that the intent of the “booby traps” was to “get 

rid” of a staff supervisor and despite repeated requests 

from the management of the Group Home to control 

such behavior;

c. Refusing to allow the Ward to be evaluated psychiatrically.
11

I. The evidence presented

A. Administration of over-the-counter medications

The Covingtons’ expert witness, Dr. Susan Blue, testified that she did not 

find anything in the records she was given to review that documented that the 

Covingtons insisted that they would make decisions regarding over-the-counter 

medicines without communicating with Champion nurses or staff. However, the 

Covingtons’ emailed response to the June 24th meeting with Champion stated 

that they disagreed with Champion’s policy that the nurse must be notified before 

anyone administers over-the-counter medications or supplements and that they 

would not comply with the policy. Ceci’s case manager, James Wallace, testified 

that their response was unacceptable and that the group home could not allow it.

There was testimony that Chila asked Champion staff to administer an 

unnamed medication to Ceci and when they refused because it had not been 

approved by the staff nurse, Chila administered it herself. There was also 

testimony that Chila had taken Ceci to receive some injections at a doctor’s office 

outside the home without prior knowledge or approval of the Champion nurse. 

Chila then dropped Ceci off at the group home and told the staff that Ceci would 

have to be observed for four hours for side effects.

Angela Berry, the lead attendant at Champion, testified that in early 2009, 

Chila told her that Ceci had “become immune” to the Tylenol she was receiving, 

and that Chila wanted the staff to administer Motrin to Ceci instead. Berry 

testified, “she actually gave me a note that said, do not give Tylenol, and I was 
12

supposed to share that note with my staff; but I had to get that approved through 

[the nurse]. I couldn’t just pull the Tylenol and give her Motrin.”

B. Refusal to control Ceci’s behavior 

1. Screwdrivers

Chila admitted that Champion staff had reported to her that they had found 

screwdrivers in Ceci’s room on more than one occasion, and that they had told 

her that it was inappropriate for Ceci to have them in her room. She said that 

Ceci “had her own screwdrivers” at the Covingtons’ home. She acknowledged to 

Champion that the screwdrivers Ceci had at the group home came from the 

Covingtons’ home and that Frank had bought new screwdrivers because the 

ones at the house kept disappearing. Dr. Blue opined that Ceci was not bringing 

the screwdrivers for “protection” because Ceci “operat[es] at a third grade level.”

Berry testified that she personally removed four screwdrivers from Ceci’s 

room, two from a jewelry box, one wedged in her closet, and one from behind a 

dresser. She said that when she informed Chila, Chila responded “like it was 

nothing to her.” Berry testified that she was concerned for her safety because 

Ceci was “always angry” and had attacked a roommate and a staff member.

Wallace testified that Champion “asked them to make sure that she didn’t 

bring screwdrivers in. And, you know, they just stated that it wasn’t that big of a 

deal and we’re blowing it out of proportion because that’s all she was trying to do 

was protect herself.” At the June 24th meeting, Champion again discussed the 

screwdrivers with the Covingtons. Frank responded by telling Champion that he 
13

had a shotgun in his bedroom and saying, “Who doesn’t want to protect 

themselves?” Chila testified that Frank does not have a shotgun in his bedroom, 

but that he was only “making a point.” Wallace testified that he did not think the 

Covingtons’ response was appropriate.

At the hearing, Chila continued to deny that Ceci’s possession of 

screwdrivers posed a threat to others in the group home. She was asked,

Q. Right. So you’ve got a daughter who is talking to imaginary 

people, carrying on conversations with imaginary people, 

aggressively acted out beating—assaulting somebody in the front 

seat of the van because she didn’t want—because she wanted to sit 

there, and now she’s got screwdrivers by her bedside. You don’t 

see a problem with that?

A. No, I do not.

Q. Okay.

A. I know my daughter.

Q. Do you see why the group home might be a little concerned 

about that?

A. I knew what their agenda was.

Q. What their agenda was? What was their agenda?

A. A psychiatric evaluation.

2. “Booby traps”

Chila acknowledged at the hearing that Champion had reported to her on 

more than one occasion that Ceci was arranging marbles in front of the door to 

her room at the group home. Chila claimed that Ceci only played with the 

marbles by putting them in lines. Champion staff testified that the marbles were 
14

not a game but were specifically arranged “to trap you from opening the door or 

to get you.” Ashley Woodard, a direct care staff at Champion, testified, “[W]hen I 

asked her to pick them up she says that it’s a booby-trap and she needs them 

there. And she doesn’t want to move them.” Berry testified that Ceci would lay 

out the marbles very frequently, “too many [times] to count.” Berry testified that 

Ceci would talk to her imaginary friend George and

She would be very angry and upset and she would be talking to 

George about maybe plotting, like she would set booby-traps. That’s 

what Ceci would call them, booby-traps. And the booby-traps she 

said was to get rid of myself and Adele, which is another staff.

And at one point, she was in her room and she was telling 

George that the trap didn’t work, like, [“]it didn’t work. We got to try 

something else and we will try again tomorrow . . . .[”]

Berry testified that Ceci told her, “You don’t belong here, you got to go.” She 

explained,

She would take marbles and put them along her room door, like, 

right under the door, where if you were to look down, you’re not 

going to see them until you open the door; and when we opened the 

door, we would see them there. And I notified her mother of it and 

she told me, well, the staff should be smart enough to look down on 

the ground or to just stay out of her room.

Wallace also testified that Ceci took “beads” and laid them in front of her door. 

He stated,

And when one of the staff approached her door that—that she told 

them to come in and they saw the beads and they asked what they 

were for. And, I believe, she stated that come on in; you’ll see. And 

then it was later discussed that she—she had them there so that the 

staff would trip and fall.
15

Dr. Blue testified that it would be a cause for concern if Ceci was setting 

booby traps, but in her opinion, Ceci did not have the mental capacity to create a 

booby trap. Dr. Blue testified that the notes she read from Champion stated that 

the staff laughed about the marbles.

Berry testified that she started to become concerned that Ceci was hiding 

screwdrivers and setting booby traps and “constantly planning to get rid” of staff 

members. Berry had all the knives in the group home locked up so that Ceci 

would not be able to access them. She explained that because the marbles 

came from a game, staff members were not allowed to take them from Ceci 

because she was allowed under her service program to have games.

Wallace testified that when the marbles were reported to the Covingtons, 

they did not think it was a serious concern. Denise Gasmire, the general 

manager and owner of Champion, also testified that the Covingtons were 

informed of the booby traps but that they “kind of laughed it off.” The Covingtons 

told Champion that Ceci’s “booby-traps” were “only showing her frustration level 

at being bothered constantly” by Champion staff.

C. Refusing to allow Ceci to be evaluated psychiatrically

Gasmire testified that Ceci’s behaviors were “getting very severe.” She 

said,

She would just be physically agitated, some yelling involved with 

that, just a lot of anger.

We also documented some physical agitation when she would 

start saying, something is poking me. And then, self—like, injurious 
16

behavior, she would hit herself a lot in these episodes and then she 

would talk to imaginary friends. And I believe those were the four 

things that we specifically documented because they happened in 

clusters and one generally leads to the other, especially when she’d 

really get ramped up; so we were tracking those four behaviors 

specifically.

Berry testified that in the months prior to the Covingtons’ removal, Ceci was 

talking to her imaginary friends more and more frequently. She also testified that 

Ceci was more frequently getting angry at her roommates and staff members. 

Wallace also testified that Ceci was acting out more and more frequently. 

Gasmire testified that Ceci was unhappy and “suffering.”

Chila testified that in the three months leading to her removal, she noticed 

that Ceci was “in a lot of pain.” She said that Ceci was “very consistent in having 

headaches at night. We called them headaches because we didn’t [k]now how 

to describe them, or she didn’t know how to describe them; but she was in 

extreme pain.” Chila also admitted that Champion staff asked her and Frank 

“multiple times” on “multiple occasions” to get Ceci a psychiatric evaluation, but 

that she had never taken Ceci to a psychiatrist while she was her guardian.

The Covingtons did take Ceci to an allergist, an acupuncturist, a 

neurologist, a chiropractor, and had sinus surgery and sleep apnea treatments 

performed. None of those alleviated Ceci’s episodes. The neurologist’s only 

recommendation was that Ceci “use a special hypoallergenic pillow.” The 

Covingtons did take Ceci to a neuropsychologist, Dr. Bengston, but Champion 

staff told the Covingtons in the June 24th meeting that Dr. Bengston’s report “did 
17

not address any concerns or questions as to what may be the cause of the 

behaviors, or how to address the behaviors.” The Covingtons “reported [that] the 

behaviors are due to the extreme pain and are mostly her coping mechanisms,” 

and stated that the pain and resulting behaviors could be reduced by putting ice 

on Ceci’s head, as recommended to them by the chiropractor. Chila told 

Champion that her neighbor had told her that if Ceci was evaluated by a 

psychiatrist, he will put her on medication. Chila admitted that Champion was 

only asking for an evaluation, not that Ceci be put on medication, but that she 

was refusing on the assumption that Ceci would be medicated anyway.

Two Champion employees at the meeting testified that the Covingtons’ 

stated reason for refusing an evaluation was the fear that the psychiatrist would 

prescribe psychotropic medications. Chila testified that Champion asked the 

Covingtons at least ten times in the meeting to agree to a psychiatric evaluation. 

At the hearing, she was asked,

Q. Did you agree to do the psychiatric evaluation?

A. No.

Q. All right.

A. Not at that time.

The Covingtons told Champion that they did not want Ceci on medication 

until they found “the cause of their daughter’s headaches and pain.” They stated 

that they did not “recognize” Ceci’s behaviors as “behavioral concerns but 

expressions of extreme pain and discomfort.” They wrote in their annual report 
18

to the probate court, “Cecilia’s overall behaviors were to us, her 

parents/guardians, directly related to her sleep deprivation. [Champion] does not 

see this. They have been pushing for a neuropsychiatric and psychological 

evaluation since February [2008].” They also told the probate court that they 

believed that Ceci was actually improving. The Covingtons’ expert witness, Dr. 

Blue, opined that the Covingtons did not inappropriately refuse a psychiatric 

evaluation. She testified that the Covingtons’ concern that the psychiatrist would 

prescribe medication was a valid concern.

II. Sufficiency of the evidence

The Covingtons did not prove by a preponderance of the evidence that 

they did not engage in the conduct that directly led to their removal as Ceci’s 

guardians. See Tex. Prob. Code Ann. § 762(c). The preponderance of the 

evidence showed that the Covingtons refused to submit to a psychiatric 

evaluation on the assumption that Ceci would be medicated. The evidence also 

showed that Champion was seeking only an evaluation and not necessarily 

psychotropic medication; thus, the Covingtons’ justification was not valid. The 

Covingtons also admitted to telling Champion that they refused to abide by 

Champion’s policy of notifying the nurse before giving Ceci any over-the-counter 

medication or supplements.

The evidence also showed that the Covingtons did not express any 

concern over Ceci’s possession of screwdrivers in the group home or her setting 

“booby traps” with marbles in front of her door. There was no evidence that the 
19

Covingtons expressed any plan to limit Ceci’s access to screwdrivers at their 

house or that they would cease buying screwdrivers to replace the ones Ceci 

took. The Covingtons maintained at trial that Ceci was not a threat to her 

roommates or Champion staff, despite acknowledging that Ceci would act out 

physically when she was upset or angry. Although the Covingtons’ expert 

testified that because Ceci “operat[es] at a third grade level,” she did not have 

the mental capacity to set the traps maliciously, the preponderance of the 

evidence was that Ceci was laying out the marbles “so that the staff would trip 

and fall.”

In their motion for rehearing and their motion for reconsideration en banc, 

the Covingtons argue that our review of the evidence did not consider the 

evidence in its “proper context.” They contend that the word “conduct” as used in 

the reinstatement statute equates to the grounds for removal under section 761. 

See Tex. Prob. Code Ann. § 761; Act of May 30, 1993, 73rd Leg., R.S., ch. 957, 

§ 1, 1993 Tex. Gen. Laws 4081, 4123 (amended 2011) (current version at Tex. 

Prob. Code Ann. § 762 (West Supp. 2011)). In essence, they claim that we 

should review their behavior and determine whether those acts rise to the level of 

cruel treatment or gross misconduct and gross mismanagement in the 

performance of their duties as guardians. This amounts to a review of whether 

the guardian ad litem presented sufficient evidence to demonstrate that the 

Covingtons’ conduct amounted to cruel treatment or gross misconduct at the 

hearing for removal. As we noted above, the Covingtons did not appeal their 
20

removal, although a direct appeal of their removal was available. See, e.g., In re 

Keller, 233 S.W.3d 454 (Tex. App.—Waco 2007, pet. denied) (appeal from a 

removal); Finley, 220 S.W.3d at 608 (same). Thus, we cannot review the trial 

court’s judgment in the removal proceedings to remove the Covingtons.5

Even construing the word “conduct” in section 762 as the grounds listed in 

section 761, as the Covingtons would have us do, we cannot say that the trial 

court abused its discretion in finding that the Covingtons engaged in cruel 

treatment, gross misconduct, or gross mismanagement. Under the definition that 

the Covingtons set forth in their brief, cruel treatment includes “willful persistent 

infliction of unnecessary suffering, whether in realization or apprehension, 

whether of mind or body.” Goodfellow v. Goodfellow, No. 03-01-00633-CV, 2002 

WL 31769028, at *3 (Tex. App.—Austin, Dec. 12, 2002, no pet.) (not designated 

for publication). Gross misconduct or mismanagement includes “at minimum: (1) 

any willful omission to perform a legal duty; (2) any intentional commission of a 

wrongful act; and (3) any breach of a fiduciary duty that results in actual harm to 

a beneficiary’s interest.” Finley, 220 S.W.3d at 619 (quoting Geeslin v. 

McElhenney, 788 S.W.2d 683, 684–85 (Tex. App.—Austin 1990, no writ)).

The preponderance of the evidence showed that the Covingtons refused to 

submit Ceci to a psychiatric evaluation without valid justification, allowing Ceci’s 

extremely painful headaches to continue. The Covingtons claim in their motion 

 

5Even if we could review the removal, there is no record of the hearing for 

us to review.
21

for rehearing and their motion for reconsideration en banc that they based their 

refusal of the evaluation on the advice of Ceci’s treating physicians and 

neuropsychologists. There was no evidence at the reinstatement hearing that 

any doctor told the Covingtons that a psychiatric evaluation was unnecessary or 

harmful. Chila only testified that none of the doctors told her to get a psychiatric 

evaluation. In fact, Chila’s testimony was that they refused based on their 

neighbor’s claim that Ceci would be medicated. Champion’s requirement of 

notifying the nurse before giving Ceci any over-the-counter medication or 

supplements is an important policy implemented to protect Champion residents 

from dangerous medication interactions. The Covingtons expressly refused to 

abide by the policy, which could lead to serious physical danger, especially 

considering the number of doctors that Ceci sees and the number of medications 

that Ceci takes.

As the Covingtons note, section 762’s purpose is to provide improperly 

removed guardians the opportunity to be reinstated by proving that they did not 

engage in the conduct that led to their removal. Under any definition of 

“conduct,” the Covingtons failed to meet that burden. The preponderance of the 

evidence demonstrates that the Covingtons engaged in the conduct that directly 

led to their removal. Therefore, we cannot say that the trial court abused its 

discretion in denying the Covingtons’ application for reinstatement. We overrule 

the Covingtons’ issue.
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Conclusion

Having overruled the Covingtons’ sole issue on appeal, we affirm the 

judgment of the trial court.

LEE GABRIEL

JUSTICE

PANEL: GARDNER, MCCOY, and GABRIEL, JJ.

DELIVERED: May 3, 2012