Affirmed and Opinion Filed August 21, 2014 

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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 Vanega s (“Grandmother”) sole managing conservator of D.L. and C.V. (together, “Children”) and ap pointed Crystal Harris (“Mother”) possessory conservator. In a single issue, Mother asse rts 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 re sided with Grandmother since birth. Grandmother’s son, the father of the Childre n, 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–2– affidavit in 2011. The revocation prompted Grandm other’s filing of the petition seeking a court order awarding her managing conservatorship of the Children. The trial court concluded Gr andmother had standing to bri ng suit under the family code. The trial court signed temporary orders appo inting Grandmother temporary sole managing conservator. Mother was also ordered to pa y 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 ma naging conservatorship to Grandmother and possessory conservatorship to Mo ther. The court also awarded judgment for past due child support to Grandmother in the amount of $3,330, a nd 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 br ing 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 conclusi ons of law, we imply the fi ndings necessary to support the judgment. 3 When standing to bring a par ticular type of lawsuit has be en conferred by statute, we use that statutory framework to analyze whethe r 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.).–3– 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 pe rson 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 pare nt, who has had actual care, control, and possession of the child for at leas t six months ending not more than 90 days preceding the date of th e filing of the petition . . . (10) a person designated as the ma naging 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. Alt hough the Children occasionally visit Mother, the Children reside with Grandmother, and Grandmot her 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 ha s the right to possession of the Children, to direct their moral and religious training, and to designat e their residence. Grandmother is also charged with the duty of care, c ontrol, discipline, and pr otection, has the right to consent to dental and medical care, and the right to access state and fe deral 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, a nd possession of the Children for the statutorily prescribed period of time and Grandmother was na med the managing conservator in the affidavit

5 T EX

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. §102.003(a) (9),(10) (West 2014). 6 Id. 7 T EX

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. §102.003(a) (9),(10) (West 2014).–4– of relinquishment. Consequently, the trial court did not err in concluding that Grandmother has standing to bring suit. 8 The first part of Moth er’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 fa vor 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 su pport the finding and disr egard 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 ex ists if the evidence furnishes some reasonable basis for differing conclusions by reas onable minds about the existence of a vital fact. 14 To determine whether the ev idence is factually in sufficient, we must consider, weigh, and examine all of the evidence that supports or contradicts the fact-f inder’s determination. 15 We may set aside a judgment only if the evidence supporting it is so contrary to th e overwhelming weight

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. § 153.131 (Tex. 2014).
10 Gillespie v. Gillesp ie, 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 Uni on 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.).–5– of the evidence as to be clea rly 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 w itnesses and the weight to be given their testimony. 18 Thus, in addressing the overlapping abuse of discre tion/sufficiency standard s of review, we first determine whether the trial court had sufficient in formation to exercise its discretion, then we determine whether the cour t abused its discretion. 19 If a non-parent and a parent are both seek ing managing conservatorship of a child, the family code prohibits a court from appointin g 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 im pair the child’s physi cal health or emo tional development.” 20 This creates a presumption in favor of parental custody. 21 This parental presumption, however, can be rebutted upon a showi ng that the parent voluntarily surrendered possession of the child. To this end, the family code provides: The presumption that a parent shoul d be appointed or retained as managing conservator of the child is rebutted if the court finds that: (1) the parent has voluntarily reli nquished actual car e, 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.).
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. § 153.131. 21 See Lewelling v. Lewelling , 796 S.W.2d 164, 167 (Tex. 1990).–6– (2) the appointment of the nonparent or agency as managi ng 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 volu ntarily relinquished cont rol 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 conser vatorship 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 conser vatorship, access, and possession. 24 Because the trial court is in a position to analyze the facts with regard to issu es 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 chil d, 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 indi vidual seeking custody; (5) the pr ograms available to assist the individual to promote the best in terest 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 placemen t; (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

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. § 153.373 (West 2014).
23 See S.M.D ., 329 S.W.3d at 13 (court implies findi ngs in support of judgment). 24 T EX

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. §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).–7– Grandmother stated that she has raised a nd 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. Acco rding to Grandmother, the Children complain that Mother yells and curses at them, and have expressed a desire to c ontinue to reside with Grandmother. Mother is residing with a boyfri end in San Antonio, and Grandmother and the Children reside in Dallas. The ma n with whom Mother resides has a prior conviction for family violence. Grandmother expressed concern to Mo ther that she was allowing the boyfriend to discipline the Children when they visited. Grandmother testified that Mother resided at her home on and of f throughout the years. Mother moved out in 2001, four months after th e 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 ma n, but instead resides with a boyfriend in San Antonio. Mother has had seven children with f our fathers. Grandmother testified without objection that Mother has had her rights terminat ed as to other children. She did not specify which ones or how many. Mother signed the affidavit of relinquishme nt 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 involvi ng the Children in which CPS wanted to terminate Mother’s parental rights. Mother was not following CPS di rectives 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–8– 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 Moth er revoked the affidavit as to the two Children that are the subject of this case. Gr andmother was concerned about the Children going to live with Mother because of “the history of drug abuse,” a nd her concerns about Mother’s boyfriend and the discipline of the Children. Gra ndmother 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 in cident where Mother was confused about when the court orders indicated Children were supposed to be returned to Gra ndmother after a visit. Mother sent Grandmother a text saying the Childr en would not be returned for a few days until after they were due. Grandmothe r filed a police report, and ulti mately 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 fo r 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 sp orts and scouting. Last year, she enrolled them in dance classes. She keeps their schedul es 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 pack et of homework that was to be completed. When the Children returned, the packet was unopened. Since Mother b ecame a part of the Children’s lives again in 2009, Grandmother has observed be havior changes in the Child ren. Grandmother expressed concern that sending the Children to live with Moth er for the first time in their lives would be emotionally disruptive to the Children.–9– Kim Lumpkin, a friend of Grandmother’s, te stified that she has known Grandmother forabout 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, Theres a Barrera, also testif ied. Barrera has spent considerable time with the family. Grandmother is a good pa rent, and Barrera does not believe it would be in the Children’s best interest to liv e with Mother. The Children have friends and a community that has embraced them in their curre nt location with Grandmother. The Children are happy, well-fed, properly clot hed, well-adjusted, and receiv ing 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 Ch ildren are doing well in school and are involved in numerous activities. They are happy, and their health is pr operly cared for. One child has asthma, which is under control. But Mother’s boyfriend is a smoker, and the aunt does not be lieve it would be in the Children’s best interest to live with a smoke r. The aunt believes that Mother is involved with drugs. She described a text message she once receiv ed from Mother in which Mother was asking for drugs. When the aunt returned the text and inquire d 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. Moth er placed the child with aunt when the child was three months old. The aunt te stified that it would no t be in the Children’s best interest to go live with Mother. The Children have been in Dallas th eir entire life, and are–10– 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 li ving in her home, and has taken two parenting classes. Mother said that she loves her children. Sh e is in the process of getting a divorce. Mother acknowledged that she has not pa id any of the court-ordered ch ild 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 intere st is best served by mo ving from Dallas to live with her in San Antonio. Mother did not state th at she is no longer using drugs, nor was there any testimony or evidence that she is employed. Ther e 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 ev idence to support the tria l court’s conclusion that the best interest of the Ch ildren would be served by remaining with Grandmother. Therefore, we conclude the trial court did not abuse it s discretion by appointi ng Grandmother managing conservator. Mother’s issu e is overruled. The trial court’s judgment is affirmed.

131059F.P05
/Kerry P. FitzGerald/ KERRY P. FITZGERALD JUSTICE–11– 

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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 r ecover her costs of this appeal from appellant CRYSTAL ANN HARRIS.
Judgment entered August 21, 2014