COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

IN RE:

B.B.,

1

RELATOR.

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No. 08-20-00247-CV

AN ORIGINAL PROCEEDING

IN MANDAMUS

O P I N I O N

Relator B.B. seeks a writ of mandamus compelling the Honorable Yahara Gutierrez, judge 

of the 65th District Court of El Paso County, to reverse an order in Cause No. 2020DCM5860 

granting the Texas Department of Family and Protective Services temporary managing 

conservatorship over B.B.’s son and instead issue an order stating that B.B. is his son’s managing 

conservator based on the fit parent presumption. See generally In re C.J.C., 603 S.W.3d 804, 811-

12 (Tex. 2020). 

We will deny mandamus relief at this time.

BACKGROUND

B.B. (Father) has a child with Mother.2 Father and Mother were together for about ten 

1 Pursuant to TEX.R.APP.P. 9.8(b)(2), we identify the relator using a pseudonym.

2 Mother has two other children with a different father.
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months after the Child was born. A California court awarded custody of Child to Mother when 

Child was about one year-old. Mother later moved to the El Paso area while Father remained in 

California. Child is seven years’ old as of January 2021. Father has visited Child only a handful of 

times in the past six years.

On November 10, 2020, Child allegedly tested positive for methamphetamines, leading the 

Department to remove Child and his half-siblings from the home. At the time of the removal, only 

Maternal Grandparents were present in the home. Caseworker Merissa Amarena-Solis contacted 

Father in California to inform him about the removal. The day after removal, Father contacted the 

caseworker to ask how Child was doing, and he hired a lawyer to seek custody of Child.

According to the caseworker, California officials would not permit placement of Child with 

Father before a home study could take place in California. The caseworker testified the Department 

in Texas also had concerns with a California placement with Father, given uncertainty about the 

nature of the California custody order, and given that the Department was unsure of where Father 

was living and was aware of Father’s alleged substance abuse and criminal history3 arising out of 

Father’s previous involvement with the Department in other case. Amarena-Solis testified that she 

has met with Child four times since the case began and that he has not mentioned Father. Mother 

testified Child does not call Father “Daddy,” although Father testified Child does refer to him as 

“Daddy.”

At the full adversary hearing held pursuant to Section 262 of the Texas Family Code,

Mother testified that Father had given her a black eye when she was three months pregnant with 

Child and offered photographic proof, but Father denied the allegation. Mother also obtained a 

.

3 Father had three admitted DWIs and had not obtained treatment or complied with California court orders. He also 

had a history of domestic violence against Mother and possible fraud charges pending in San Diego.
3

two-year protective order against Father on July 18, 2018. Mother also testified to a prior pattern 

of verbal and physical aggression toward her. Mother testified that Father has an alcohol problem 

and that during one two-week visit Father was drunk “every day” except for one day in which he 

was too hung over to get off the couch, and that Father’s actions disturbed Child. Mother testified 

that Father also has an unstable housing situation and has “couch surfed” since early on in their 

relationship.

Father testified and denied many of the allegations made by Mother and the Department, 

including the allegations of domestic violence. At the conclusion of the hearing, the trial court 

named the Department as Child’s temporary managing conservator. This mandamus action 

followed.

DISCUSSION

Mandamus Standard

A writ of mandamus will issue if a trial court abuses its discretion and no adequate remedy 

by appeal exists. In re C.J.C., 603 S.W.3d at 811. In determining whether to grant mandamus 

relief, an appellate court should defer to the trial court’s factual determinations supported by the 

record. Id. Mandamus relief may be appropriate where a trial court order permits a nonparents’ 

access to a child over a fit parent’s objection. Id. A court of appeals cannot resolve fact issues on 

mandamus; thus, if a legal question turns on disputed questions of fact, mandamus should be 

denied. See In re Elamex, S.A. de C.V., 367 S.W.3d 891, 896 (Tex.App.—El Paso 2012, orig. 

proceeding).

Analysis
4

Following a full adversary hearing in a suit by a governmental entity to protect the health 

and safety of a child, where a child has been removed from a custodial parent due to a substantial 

risk of a continuing danger if the child is returned home, the placement of the child is governed by 

Section 262.201(n) of the Texas Family Code. TEX.FAM.CODE ANN. § 262.201(n). That provision 

expressly states that the trial court “shall place a child removed from the child’s custodial parent

with the child’s noncustodial parent or with a relative of the child if placement with the 

noncustodial parent is inappropriate, unless placement with the noncustodial parent or a relative is 

not in the best interest of the child.” Id. § 262.201(n). The Texas Family Code further provides 

that “[t]he best interest of the child 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.

Conversely, in a custody modification proceeding where a nonparent seeks custody of a 

child already subject to an existing custody order, a parent previously named as managing 

conservator is entitled to a fitness presumption that the parent acts in his or her child’s best interest, 

and a child may not be placed with another relative if the fit parent objects to the placement. In re 

C.J.C, 603 S.W.3d at 819. This presumption holds true regardless of whether the objection is made 

at an initial custody hearing or a subsequent modification hearing. Id. However, the fit-parent 

presumption is not absolute, and may be rebutted. While the United States Constitution protects a

parent, who is not a “model” parent but who can adequately care for their child from state 

interference in child-rearing decisions, an unfit parent (i.e. a parent who cannot adequately care 

for his children) is not entitled to such deference. Id. at 817. 

Here, Father contends that placement of Child with the Department is not in Child’s best 

interest because Father is fit; thus, he is entitled to a presumption that Child’s placement with 
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Father is in child’s best interest and custody of Child cannot be granted to a nonparent (in this case 

the Department) because of Father’s preemptory objection. In making this argument, Father relies 

heavily on In re C.J.C., a recent Texas Supreme Court case that addresses when the fit parent 

presumption applies in custody modification proceedings.

In re C.J.C. was a private custody dispute between Father, Maternal Grandparents, and 

Mother’s fiance following Mother’s death. See 603 S.W.3d at 808-09. The trial court, over Father’s 

objection, entered a temporary order granting Mother’s fiance possessory conservatorship. Id. at 

810. Although the trial court made a finding that this arrangement was in the child’s best interest, 

there was no allegation or finding of parental unfitness against Father; on the contrary, Father’s 

fitness was uncontested. Id. However, Mother’s fiance and Father disagreed as to whether Father 

could rely on the fit parent presumption to block Mother’s fiance from obtaining custody rights

through Father’s preemptory objection to the custody arrangement. Mother’s fiance correctly 

noted that unlike the Texas Family Code provision dealing with initial custody determinations, the 

statute dealing with custody modification proceedings did not explicitly provide for the application 

of the fit-parent presumption. Id. at 813, 816-17. The narrow question on mandamus review was 

whether Father was nevertheless entitled to the fit parent presumption despite the fact the statute 

did not appear to call for the presumption to be applied.

The Texas Supreme Court agreed the general custody modification statute did not 

explicitly provide for application of the fit-parent presumption and the parental preemptory 

objection to nonparental custody rights in custody modification proceedings. However, because 

the facts of In re C.J.C. almost exactly matched those presented in the United States Supreme 

Court case Troxel v. Granville,

4 and because the U.S. Supreme Court in Troxel struck down as 

4 530 U.S. 57, 60-63 (2000)(plurality op.).
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unconstitutional a similar Washington statute that allowed for grandparent custody rights to be 

granted over parental objection even when the parent was fit, the Texas Supreme Court held that 

even in the absence of an explicit statutory directive, the trial court in a custody modification 

proceeding must still make a predicate finding of parental unfitness before granting a nonparent 

custody rights over the objection of the presumptively fit managing conservator parent. Id. at 813-

14, 818-19. Without such a finding, the statute would unconstitutionally restrict parental rights and 

subject parental decision-making to improper state interference in violation of Troxel. Id. at 818-

19.

However, In re C.J.C. does not help Father under these facts for two reasons.

First, In re C.J.C. extended the fit parent presumption to apply to a parent who had been 

named as the child’s managing conservator in a previous order in custody modification 

proceedings involving private parties. By contrast, in this child protection suit brought by the State, 

Father was not previously named as Child’s managing conservator. He held only the equivalent of 

possessory conservatorship under the California court’s previous custody order. In re C.J.C. held 

the fit parent presumption extended to all stages of custody proceedings under Troxel, but that 

presumption applies only to a parent previously recognized as a managing conservator. The Texas 

Supreme Court explicitly stated that In re C.J.C. did not alter the burden of proof for modifications 

of court-ordered custody arrangements involving a parent who was not named as a managing 

conservator. See id. at 819. As such, Father cannot avail himself of the fit parent presumption in 

these proceedings because he was not previously recognized as the Child’s managing conservator.

Id.

Second, mandamus issued in In re C.J.C. because the parent’s fitness in that case was never 

in dispute, meaning that as a fit parent, his wishes with respect to custody controlled. However, in 
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this case, Father was not Child’s managing conservator, meaning that he was not entitled to the fit 

parent presumption and that the issue of his fitness was an open fact question the trial court could 

resolve based on the evidence before it. Indeed, the trial court made findings at Section 4.1 of the 

order that retained possession of Child by Mother or Father posed a danger to the physical health 

or safety of the children caused by an act or failure to act. Thus, the question before us is whether 

this finding of danger to the physical health or safety of the child and substantial risk of a 

continuing danger if the child is returned home, coupled with the additional finding that it is not 

in the best interest of the child for him to be placed with a noncustodial parent are supported by 

legally sufficient evidence. We hold that the danger to the physical health or safety of the child 

finding, the urgent need for protection finding, and the continuing danger findings, along with the 

best interest of the child finding are all supported by legally sufficient evidence.

Father does not point to any evidence in the mandamus record that would rebut these 

findings as a matter of law. He simply relies on the fit parent presumption as being dispositive 

when here, as we explained previously, it is not applicable. Father does attack Mother’s credibility 

as a witness, but credibility and demeanor are questions reserved for the trial court on mandamus 

review. See In re Elamex, S.A. de C.V., 367 S.W.3d at 896 (appellate court reviewing issue for 

abuse of discretion in mandamus posture cannot substitute its judgment for that of the trial court 

with respect to the resolution of fact issues or matters committed to the trial court's discretion).

Father does complain that some of the evidence the trial court relied on was mere unverified 

“concerns” from a Department employee that constituted hearsay and was of no legal weight, and 

his complaints about potential issues regarding speculation and adequacy of prove-up generally 

are well-taken. Still, even excluding evidence that could arguably be considered hearsay from the 

Department employee, the remainder of the record shows:
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• Father had only limited visits with the Child over the last six years.

• Father has been “couch surfing” to avoid homelessness, has not had 

consistent addresses, and was currently residing with roommates, but would not 

provide information about roommates.

• Although Father denied committing domestic violence, Mother testified 

that Father committed domestic violence against her, and provided photograph 

evidence to substantiate it.

• Father has a criminal history consisting of three DWIs (he has not complied 

and apparently does not intend to comply with alcohol recovery courses and Mother 

testified during a two-week visit Father was drunk “every day” except for one day 

when he was too hung over to leave the couch) and a possible pending fraud charge 

in San Diego, along with a suspended driver’s license.

• The evidence was conflicting as to whether Child recognized Father as 

“Daddy” or by Father’s first name.

• Child has a learning disability and a speech disorder, and Mother testified 

that Father told her he wants custody so he can get disability benefits through Child.

• Father’s mandamus petition and reply do not identify countervailing 

evidence in the record that would refute these assertions or bolster his claims of 

fitness.

These facts are sufficient to support the trial court’s implied findings that it would be 

inappropriate to place the Child with his noncustodial parent and not in the Child’s best interest.

See TEX.FAM.CODE ANN. § 262.201(n). The same facts supporting those findings, coupled with 

that fact that placement would keep Child and his two half-siblings together, whereas placing Child 

separately with Father would lead to a separation from those siblings, are legally sufficient to 

support the trial court’s best interest finding.

CONCLUSION

The trial court did not abuse its discretion by rendering the challenged order. The 

application for a writ of mandamus is denied.
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February 11, 2021

YVONNE T. RODRIGUEZ, Chief Justice

Before Rodriguez, C.J., Palafox, J., and McClure, C.J. (Senior Judge)

McClure, C.J. (Senior Judge)(Sitting by Assignment)