Affirmed and Opinion Filed August 21, 2014 

S 

In The 

Court of Appeals 

Fifth District of Texas at Dallas 

No. 05-13-01059-CV 

CRYSTAL ANN HARRIS, Appellant 

V. 

VIRGINIA VANEGAS, Appellee 

On Appeal from the 254th Judicial District Court 

Dallas County, Texas 

Trial Court Cause No. DF-11-13821 

MEMORANDUM OPINION 

Before Justices Moseley, O’Neill, and FitzGerald 

Opinion by Justice FitzGerald 

 The trial court appointed Virgina Vanegas (“Grandmother”) sole managing conservator 

of D.L. and C.V. (together, “Children”) and appointed Crystal Harris (“Mother”) possessory 

conservator. In a single issue, Mother asserts the trial court erred in awarding managing 

conservatorship to Grandmother. We affirm the trial court’s judgment. 

BACKGROUND 

 The Children, born in 2000 and 2001, have resided with Grandmother since birth. 

Grandmother’s son, the father of the Children, has been incarcerated since 2008. Although father 

and Mother lived with Grandmother many years ago, both moved out and voluntarily 

surrendered possession of the Children to Grandmother. 

In 2008, pursuant to a Child Protective Services (“CPS”) investigation, Mother signed an 

affidavit of relinquishment placing the Children in the care of Grandmother. Mother revoked the 
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affidavit in 2011. The revocation prompted Grandmother’s filing of the petition seeking a court 

order awarding her managing conservatorship of the Children. 

 The trial court concluded Grandmother had standing to bring suit under the family code. 

The trial court signed temporary orders appointing Grandmother temporary sole managing 

conservator. Mother was also ordered to pay monthly child support to Grandmother in the 

amount of $222 per month. Mother failed to make any of the payments as ordered. The case was 

tried to the bench, and the court awarded managing conservatorship to Grandmother and 

possessory conservatorship to Mother. The court also awarded judgment for past due child 

support to Grandmother in the amount of $3,330, and ordered that Mother make monthly child 

support payments in the amount of $210. 

DISCUSSION 

Standing 

In the first part of her sole issue, Mother argues the trial court erred in determining 

Grandmother had standing to bring this action. We disagree. 

Standing is implicit in the concept of subject-matter jurisdiction, and it is a threshold 

issue in a child custody proceeding.1

 Whether a party has standing to pursue a cause of action is a 

question of law that we review de novo.2

 When, as here, the trial court does not make separate 

findings of fact and conclusions of law, we imply the findings necessary to support the 

judgment.3

 When standing to bring a particular type of lawsuit has been conferred by statute, we 

use that statutory framework to analyze whether the petition has been filed by a proper party.4

 1 See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993); In re SSJ–J, 153 S.W.3d 132, 134 (Tex. App.—San 

Antonio 2004, no pet.). 

 2 In re SSJ–J, 153 S.W.3d at 134.

3 In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet. dism’d) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 

1990)). 

 4 See Atty. Gen. of Tex. v. Crawford, 322 S.W.3d 858, 862 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); In re N.L.D., 344 S.W.3d 

33, 37 (Tex. App.—Texarkana 2011, no pet.). 
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The family code identifies those who have standing to file an original suit, and includes persons 

who have had possession for at least six months and a person designated as managing 

conservator in an affidavit of relinquishment.5 Specifically, the statute provides: 

(a) An original suit may be filed at any time by . . . 

(9) a person, other than a foster parent, who has had actual care, control, 

and possession of the child for at least six months ending not more than 90 

days preceding the date of the filing of the petition . . . 

(10) a person designated as the managing conservator in a revoked or 

unrevoked affidavit of relinquishment . . . .6

 The record reflects that Grandmother has had actual care, control and possession of the 

Children for the entirety of their lives. Although the Children occasionally visit Mother, the 

Children reside with Grandmother, and Grandmother is and always has been responsible for 

providing their care. 

Mother’s affidavit of relinquishment, dated April 1, 2008, was admitted into evidence at 

trial. The affidavit reflects that Grandmother has the right to possession of the Children, to direct 

their moral and religious training, and to designate their residence. Grandmother is also charged 

with the duty of care, control, discipline, and protection, has the right to consent to dental and 

medical care, and the right to access state and federal social services for the Children. The 

affidavit further grants Grandmother the right to make educational decisions and to enroll the 

Children in day care. These are duties of a managing conservator.7

 Therefore, the record reflects 

that Grandmother has had actual care, control, and possession of the Children for the statutorily 

prescribed period of time and Grandmother was named the managing conservator in the affidavit 

 

5

 TEX. FAM. CODE ANN. §102.003(a) (9),(10) (West 2014). 

6 Id.

7

 TEX. FAM. CODE ANN. §102.003(a) (9),(10) (West 2014). 
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of relinquishment. Consequently, the trial court did not err in concluding that Grandmother has 

standing to bring suit.8 The first part of Mother’s issue is overruled. 

In the remaining portion of her sole issue, Mother argues the trial court erred by 

appointing Grandmother managing conservator. Mother contends there was no evidence or 

insufficient evidence to rebut the presumption in favor of parental conservatorship set forth in the 

family code.9

 

We review a trial court’s determination of conservatorship for an abuse of discretion.10 

Under the abuse of discretion standard, a challenge to the legal and factual sufficiency of the 

evidence is not an independent ground of error, but is merely a factor in assessing whether the 

trial court abused its discretion.11 In determining a legal insufficiency issue, we are to consider 

only the evidence and inferences that tend to support the finding and disregard all evidence and 

inferences to the contrary.12 Anything more than a scintilla of evidence is legally sufficient to 

support the finding.13 More than a scintilla of evidence exists if the evidence furnishes some 

reasonable basis for differing conclusions by reasonable minds about the existence of a vital 

fact.14 To determine whether the evidence is factually insufficient, we must consider, weigh, and 

examine all of the evidence that supports or contradicts the fact-finder’s determination.15 We may 

set aside a judgment only if the evidence supporting it is so contrary to the overwhelming weight 

 8 Id.

 9 See TEX. FAM. CODE ANN. § 153.131 (Tex. 2014).

10 Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) 

11 See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991). 

12 Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001). 

13 Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). 

14 Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 262 (Tex. 2002). 

15 See Mauldin v. Clements, 428 S.W.3d 247, 268 (Tex. App.—Houston [1st Dist.] 2014, no pet.). 
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of the evidence as to be clearly wrong or manifestly unjust.16 When conducting a factual 

sufficiency review, we do not substitute our judgment for that of the fact-finder.17 The fact-finder 

is the sole judge of the credibility of the witnesses and the weight to be given their testimony.18

Thus, in addressing the overlapping abuse of discretion/sufficiency standards of review, we first 

determine whether the trial court had sufficient information to exercise its discretion, then we 

determine whether the court abused its discretion.19 

If a non-parent and a parent are both seeking managing conservatorship of a child, the 

family code prohibits a court from appointing the non-parent “unless 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.”20 

This creates a presumption in favor of parental custody.21 

This parental presumption, however, can be rebutted upon a showing that the parent 

voluntarily surrendered possession of the child. To this end, the family code provides: 

The presumption that a parent should be appointed or retained as 

managing conservator of the child is rebutted if the court finds that: 

(1) the parent has voluntarily relinquished actual care, control, and 

possession of the child to a non-parent . . . for a period of a year or more, a 

portion of which was within 90 days preceding the date of the intervention 

in or filing of the suit; and 

 16 Id.

17 Id.

18 Id. 

 19 See Chavez v. Chavez, 148 S.W.3d 449, 456 (Tex. App.—El Paso 2004, no pet.).

20 TEX. FAM. CODE ANN. § 153.131. 

 21 See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). 
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(2) the appointment of the nonparent or agency as managing conservator is 

in the best interest of the child.22

The parental presumption was rebutted here. Exhibit 2, the affidavit of relinquishment, 

shows that Mother voluntarily relinquished control of the Children to Grandmother in 2008. The 

record reflects that Children have resided with Grandmother since that time. The trial court’s 

finding that awarding Grandmother managing conservatorship is in the best interest of the 

Children is implied.23 The best interest of the child is always the primary consideration in 

determining issues of conservatorship, access, and possession.24 Because the trial court is in a 

position to analyze the facts with regard to issues of conservatorship, control, possession, child 

support, and visitation, the trial court is given “wide latitude in determining the best interests of a 

minor child.”25 

In determining the best interest of a child, courts consider the following non-exhaustive 

factors: (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 individual seeking custody; (5) the programs available to assist the 

individual to promote the best interest of the child; (6) the plans for the child by the individual or 

by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts 

or omissions of the parent, or potential conservator, that may indicate that the existing 

relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent or 

potential conservator.26 

 

22 TEX. FAM. CODE ANN. § 153.373 (West 2014). 

23 See S.M.D., 329 S.W.3d at 13 (court implies findings in support of judgment). 

24 TEX. FAM. CODE ANN. §153.002 (West 2014). 

25 Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.—Dallas 2006, no pet.). 

26 Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). 
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 Grandmother stated that she has raised and cared for the Children since birth, and that 

Mother has been in and out of jail. Grandmother is concerned that Mother has no job and offers 

no stability or supervision of the Children. According to Grandmother, the Children complain 

that Mother yells and curses at them, and have expressed a desire to continue to reside with 

Grandmother. Mother is residing with a boyfriend in San Antonio, and Grandmother and the 

Children reside in Dallas. The man with whom Mother resides has a prior conviction for family 

violence. Grandmother expressed concern to Mother that she was allowing the boyfriend to 

discipline the Children when they visited. 

Grandmother testified that Mother resided at her home on and off throughout the years. 

Mother moved out in 2001, four months after the first of the Children at issue here was born. 

Mother returned again for a short period and then left again in 2005. Mother has been in and out 

of several relationships. At one point when Mother left Grandmother’s home, Mother got 

married. She is no longer married to that man, but instead resides with a boyfriend in San 

Antonio. Mother has had seven children with four fathers. Grandmother testified without 

objection that Mother has had her rights terminated as to other children. She did not specify 

which ones or how many. 

Mother signed the affidavit of relinquishment through (“CPS”) after she had her fourth 

child. Although the details were not developed at trial, the affidavit of relinquishment resulted 

from a CPS investigation involving the Children in which CPS wanted to terminate Mother’s 

parental rights. Mother was not following CPS directives and would not communicate with them. 

CPS could not get Mother to follow through on classes or do anything. Although the affidavit 

relinquished possession of three children, in 2010, Grandmother contacted CPS to let them know 

 
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that Mother wanted one child back. At that time, Mother did not say that she wanted the Children 

at issue here. 

 Grandmother filed this suit in 2011 when Mother revoked the affidavit as to the two 

Children that are the subject of this case. Grandmother was concerned about the Children going 

to live with Mother because of “the history of drug abuse,” and her concerns about Mother’s 

boyfriend and the discipline of the Children. Grandmother testified that the Children are in 

school in Dallas and are performing well. Because Mother lives in San Antonio, Grandmother is 

concerned that she will never get to see the Children if they are sent to live with Mother in San 

Antonio. Grandmother also testified about an incident where Mother was confused about when 

the court orders indicated Children were supposed to be returned to Grandmother after a visit. 

Mother sent Grandmother a text saying the Children would not be returned for a few days until 

after they were due. Grandmother filed a police report, and ultimately incurred a car rental 

expense and a day off from work to travel to San Antonio to retrieve the Children herself. 

Grandmother testified that in 2011, Mother tested positive for drugs, and she has tested 

positive for drugs before. The record includes a court-ordered drug test, and a report showing a 

positive result. 

Grandmother has the Children involved in sports and scouting. Last year, she enrolled 

them in dance classes. She keeps their schedules very busy, and she communicates with them 

about the dangers of becoming involved with drugs. One summer, when the Children visited 

Mother, Grandmother sent a packet of homework that was to be completed. When the Children 

returned, the packet was unopened. Since Mother became a part of the Children’s lives again in 

2009, Grandmother has observed behavior changes in the Children. Grandmother expressed 

concern that sending the Children to live with Mother for the first time in their lives would be 

emotionally disruptive to the Children. 
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Kim Lumpkin, a friend of Grandmother’s, testified that she has known Grandmother for 

about seven years. One of the Children plays with her son, and the child is happy, wellmannered, cared for, and well-adjusted. Lumpkin does not believe it would be in the best interest 

of the Children to go live with Mother because the home in Dallas with Grandmother is the only 

home they have ever known, and Mother has been in and out of their lives. Lumpkin has never 

seen Mother at any of the Children’s school functions. 

Grandmother’s daughter’s best friend, Theresa Barrera, also testified. Barrera has spent 

considerable time with the family. Grandmother is a good parent, and Barrera does not believe it 

would be in the Children’s best interest to live with Mother. The Children have friends and a 

community that has embraced them in their current location with Grandmother. The Children are 

happy, well-fed, properly clothed, well-adjusted, and receiving appropriate care from 

Grandmother. 

The Children’s aunt, a police officer with the Dallas Police Department, also testified that 

Grandmother is a good mother to the Children. Grandmother makes sure the Children have 

appropriate discipline. The Children are doing well in school and are involved in numerous 

activities. They are happy, and their health is properly cared for. One child has asthma, which is 

under control. But Mother’s boyfriend is a smoker, and the aunt does not believe it would be in 

the Children’s best interest to live with a smoker. The aunt believes that Mother is involved with 

drugs. She described a text message she once received from Mother in which Mother was asking 

for drugs. When the aunt returned the text and inquired if Mother realized she was asking for 

drugs, Mother replied that she let someone use her phone and had not intended to text the aunt. 

The aunt is also raising one of Mother’s biological children. Mother placed the child with aunt 

when the child was three months old. The aunt testified that it would not be in the Children’s 

best interest to go live with Mother. The Children have been in Dallas their entire life, and are 
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happy and doing well in school. Moving them to San Antonio would be a huge disruption. The 

aunt also worries that Mother is still involved with narcotics, and she is concerned about the 

Children being in “that type of environment.” 

Mother testified that she has had trouble with drugs in her past and is still undergoing 

drug counseling twice a week. She acknowledged that she has made a lot of mistakes and bad 

choices. Mother currently has three children living in her home, and has taken two parenting 

classes. Mother said that she loves her children. She is in the process of getting a divorce. Mother 

acknowledged that she has not paid any of the court-ordered child support because “they don’t 

need it.” Mother stated that she wants what is best for her children, but she offered no 

explanation as to why she believes their interest is best served by moving from Dallas to live 

with her in San Antonio. Mother did not state that she is no longer using drugs, nor was there any 

testimony or evidence that she is employed. There was also no testimony concerning any plans 

for feeding, clothing, or educating the Children, or attending to their physical and emotional 

well-being. 

The record reflects that there is sufficient evidence to support the trial court’s conclusion 

that the best interest of the Children would be served by remaining with Grandmother. Therefore, 

we conclude the trial court did not abuse its discretion by appointing Grandmother managing 

conservator. Mother’s issue is overruled. The trial court’s judgment is affirmed. 

131059F.P05 

 /Kerry P. FitzGerald/ 

KERRY P. FITZGERALD 

JUSTICE 
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S 

Court of Appeals 

Fifth District of Texas at Dallas 

JUDGMENT 

CRYSTAL ANN HARRIS, Appellant 

No. 05-13-01059-CV V. 

VIRGINIA VANEGAS, Appellee 

 On Appeal from the 254th Judicial District 

Court, Dallas County, Texas 

Trial Court Cause No. DF-11-13821. 

Opinion delivered by Justice FitzGerald. 

Justices Moseley and O'Neill participating. 

 In accordance with this Court’s opinion of this date, the judgment of the trial court is 

AFFIRMED. 

 It is ORDERED that appellee VIRGINIA VANEGAS recover her costs of this appeal 

from appellant CRYSTAL ANN HARRIS. 

Judgment entered August 21, 2014