Cause No. 13-15-00099-CV 

IN THE COURT OF APPEALS 

FOR THE THIRTEENTH SUPREME JUDICIAL DISTRICT 

CORPUS CHRISTI, TEXAS 

_____________________________________________________ 

IN THE INTEREST OF 

L.D.J. III, A.Y.J., W.F.J. and C.J., 

CHILDREN 

_____________________________________________________ 

Appealed from the 206th Judicial District Court of 

Hidalgo County, Texas 

Hon. Rose Guerra Reyna, Presiding 

___________________________________________ 

APPELLANT’S BRIEF ON THE MERITS 

___________________________________________ 

ORAL ARGUMENT REQUESTED 

 

ACCEPTED

13-15-00099-CV

THIRTEENTH COURT OF APPEALS

CORPUS CHRISTI, TEXAS

7/21/2015 10:10:42 AM

CECILE FOY GSANGER

CLERK

 FILED IN 13th COURT OF APPEALS CORPUS CHRISTI/EDINBURG, TEXAS 7/21/2015 10:10:42 AM CECILE FOY GSANGER Clerk
2 

IDENTITY OF THE PARTIES 

PETITIONER/APPELLANT: COUNSEL: 

Blanca E. Jones Francisco Guerrero, II

SBN 24047588 

PENA GARCIA GUERRERO PLLC 

 900 Kerria Avenue 

 McAllen, TX 78501 

t: 956.948.2221 

f: 888.422.6821 

fg@pgglex.com

 

Counter-Petitioner/APPELLEE: COUNSEL: 

Helen M. Jones Roel “Robie” Flores 

 The Firm of Roel “Robie” Flores 

 3331 N. Ware Rd 

 Mc Allen, Texas 78501 

 t: 956.631.7188 

 f: 956.631.7268 

 robiefloreslaw@att.net
3 

TABLE OF CONTENTS 

IDENTITY OF THE PARTIES................................................ 2 

TABLE OF CONTENTS............................................. ........... 3 

TABLE OF AUTHORITIES................................................... 4 

RECORD REFERENCES....................................................... 5 

STATEMENT OF THE CASE................................................. 6 

STATEMENT REGARDING ORAL ARGUMENT ....................... 7 

ISSUES PRESENTED........................................................... 8 

STATEMENT OF FACTS........................................................ 9 

SUMMARY OF THE ARGUMENT.......................................... 13 

ARGUMENT...................................................................... 16 

PRAYER.......................................................................... 39 

APPENDIX....................................................................... 41 
4 

TABLE OF AUTHORITIES 

STATE CASES 

Brigham v. Brigham, 

863 S.W.2d 761 (Tex.App.- Dallas, 1993).............................. 35

Chavez v. Chavez, 

148 S.W. 3d 449 (Tex.App.-El Paso, no pet.)........................... 31, 34

Critz v. Critz, 

297 S.W.3d 464 (Tex.App.—Fort Worth 2009, no pet.).... 17, 18, 24, 25, 29, 34 

Danet v. Bhan, 

436 S.W.3d 793 (Tex. 2014).............................................. 34 

Gray v. Shook, 

329 S.W.3d 186 (Tex.App.-Corpus Christi 2010)............... 30, 31, 36, 37, 38 

In re S.A.H, 

420 S.W.3d 911 (Tex.App.-Houston [14th] Dist., 2014).............. 19, 22, 26 

In re S.M.D, 

329 S.W.3d 8 (Tex.App.-San Antonio, 2010)(reh’g overruled, rev. dism’d)...34 

Lewelling v. Lewelling, 

796 S.W.2d 164 (Tex.1990)............................................... 29, 35, 37 

May v. May, 

829 S.W.2d 373 (Tex.App.-Corpus Christi 1992, writ denied)....... 30, 36, 37 

Shook v. Gray, 

381 S.W.3d 540 (Tex. 2012) .............................................. 36, 37 

STATE STATUTES 

TEX. FAM. CODE ANN. §153.002............................................ 36 

TEX. FAM. CODE ANN. §153.131.............................................23, 28, 34, 37 

TEX. FAM. CODE ANN. §153.373.............................................18, 19, 27 
5 

RECORD REFERENCES 

CR_ Clerk’s Record 

1 RR_ Volume one of Recorder’s Record 

2 RR_ Volume two of Recorder’s Record 

3 RR_ Volume three of Recorder’s Record 

Ex. P-_ Petitioner/Appellant’s exhibit to the Recorder’s Record

Ex. CP-_ Counter-Petitioner/Appellee’s exhibit to the Recorder’s Record 
6 

STATEMENT OF THE CASE 

This appeal is taken from a final order rendered in the 206th Judicial District 

Court of Hidalgo County in an action filed as a Suit Affecting Parent Child 

Relationship. (CR p.110). The final order in this matter was rendered after a bench 

trial held on December 17th and 18th, 2014. The Court signed Findings of Fact and 

Conclusions of Law on January 28, 2015. (CR p.108). Appellant filed her Notice 

of Appeal on February 17, 2015. (CR p.132). 
7 

STATEMENT REGARDING ORAL ARGUMENT 

This case involves the conservatorship of four children. The trial court 

appointed paternal grandmother as sole managing conservator of these children, 

instead of their biological mother. 

The mother of these children challenges, in this appeal, that the trial court 

abused its discretion because the evidence is legally and factually insufficient to 

support the trial court’s judgment as to rebuttal of the statutory presumptions in 

Tex. Fam. Code §§151.131 and 151.373. Appellee failed to prove that Appellant 

had 1.) voluntarily relinquished actual care, control and possession of the children 

to Appellee for a period of one year or more; and/or 2.) that it would not be in the 

children’s best interest to have their mother appointed sole managing conservator 

because such appointment would significantly impair their physical health and 

emotional development. 

Since neither the Family Code nor case law provide bright-line definitions of 

the term “voluntarily relinquishment” or the term “significant impairment”, 

resolution of cases such as these is fact intensive analysis. Due to the Appellant’s 

challenge of the legal and factual sufficiency of the evidence in this matter, oral 

argument would be most beneficial for a clear presentation of the facts and to the 

court’s understanding of the facts in this case.
8 

ISSUES PRESENTED FOR REVIEW 

The trial court abused its discretion in appointing Appellee as the sole managing 

conservator of the children and Appellant the possessory conservator. 

I. The evidence is legally and factually insufficient to support the court’s 

Finding of Fact No. 2. 

III. The evidence is legally and factually insufficient to support the court’s 

Finding of Fact No. 4. 

III. The evidence is legally and factually insufficient to support the court’s 

Finding of Fact No. 5 that Appellee rebutted the statutory parental 

presumption in Tex. Fam. Code §153.131. 

IV. The evidence is legally and factually insufficient to support the court’s 

Finding of Fact No. 5 that Appellee rebutted the statutory parental 

presumption in Tex. Fam. Code§153.373. 

V. The court erred in its Conclusion of Law – Conservatorship because the 

evidence is legally and factually insufficient to support the conclusion that 

Appellee be appointed sole managing conservator of the children and 

Appellee should be appointed possessory conservator. 
9 

STATEMENT OF FACTS 

a. Appellant was married to Appellee’s son, Larry Dean Jones, Jr.(hereinafter 

“Dean” or “Appellant’s husband”), on April 29, 2011. Prior to their marriage, three 

children were born to Appellant and Dean. (2RR p.102, line 19-23). The children 

lived with Appellant prior to her marriage to Dean. (2RR pp.94-102). On or about 

December 2012, Appellant left the United States for Mexico to complete the 

immigration process which she and her husband had initiated. (CR p.15; 2RR 

p.111; Ex. P-4). 

b. On or about January 2013, Appellant was denied re-entry into the United 

States and had to remain in Mexico pending a new visa appointment, because the 

proper documentation regarding her pregnancy with the child C.J. had not been 

submitted. (CR p.15; 2RR p.111; Ex. P-4). The youngest child, C.J., was born 

while Appellant resided in Mexico awaiting a subsequent visa appointment. (2RR 

p.119). Meanwhile, her husband remained in the United States managing their 

affairs in her absence. (2RR pp.38-39 and 46; Ex. P-4). 

c. On or about December 21, 2012, Appellee took possession of three of the 

children the subject of this suit. (3RR p.35). Appellee had possession of the 

children for the time period that Appellant was to be outside the United States 

awaiting subsequent visa interview for her and C.J.. (2RR p.104, line 7-25 and 
10 

3RR p.37, line 9-25). On or about March 2014, Appellant lawfully re-entered the 

United States with her youngest child, C.J. (2RR p.119; Ex. P-3). 

d. Immediately upon her return, Appellant and Dean made plans to retrieve 

their children from Fredericksburg, Texas where the children were living with 

Appellee. (2RR p.119;). On or about April 2014, Appellant and Dean traveled to 

Fredericksburg, Texas to reunite the family and return with the children to 

McAllen, Texas. (2RR p.p. 120-121). Appellant, Dean, and Appellee subsequently 

entered into an agreement to allow the children L.D.J. III and W.F.J. to spend time 

with their grandmother, Appellee, until the end of the school year. (2RR p.p. 121) 

The agreement called for the children to return to McAllen, Texas so they could 

live with Appellant, her husband, and the other children A.Y.J and C.J 

permanently. (2RR p.121). 

e. On or about June 2014, Dean disappeared for approximately two weeks 

while on an alleged business trip. (2RR pp.122- 124). During Dean’s two-week 

absence, Appellant attempted to regain possession of her children, but Appellee 

refused to return the children to Appellant, in breach of their agreement. (2RR 

p.126; 3RR p.p. 93-94; Ex. CP-1). Subsequently, Appellant filed for divorce in 

Hidalgo County, Texas. (2RR p.125). In response to Appellant’s divorce action, 

Dean filed a divorce action in Kendall County in Cause No. 14-283-CCL, styled In 

the Matter of the Marriage of Larry D. Jones, Jr. and Blanca Estella Jones and In 
11 

the Interest of L.D.J, III, A.Y.J, W.F.J. and C.J., Minor Children (herein “Dean’s 

divorce action”). (3RR p.p. 95-101; Ex. P-5). The Appellee intervened in Dean’s 

divorce action. (3RR p.p. 95-101; Ex. P-5) 

f. Appellant and Dean began to reconcile their marriage in the latter part of 

June 2014. (2RR p. 134; Ex. P-8). Appellant and Dean eventually travelled to 

Fredericksburg, Texas to regain possession of the two remaining children, L.D.J, 

III and W. F. J., in an attempt to work on their marriage. (2RR p. 134). On July 3, 

2014, Dean’s father drove Appellant with all her four children down to McAllen, 

Texas. (2RR p. 135). 

g. On or about July 3, 2014, Appellant’s husband committed suicide in 

Fredericksburg, Texas. (2RR p. 134, line 16-19). On July 11, 2014 Appellee 

sought and obtained a Writ of Attachment for all four children from the Kendall 

County Court at Law pursuant to her intervention in Dean’s divorce action. (3RR 

p.p. 95-101; Ex. P-5). On or about July 11, 2014, Appellee travelled from Kendall 

County to McAllen, Texas and had the Writ of Attachment for all the children 

executed by Hidalgo County Sheriff’s officers. (3RR p. 100, line 21-25 and p. 

102). 

h. On July 16, 2015, Appellant filed the instant Suit Affecting Parent Child 

Relationship, in Hidalgo County, Texas. (CR p.15). On July 25, 2014, the Kendall 

County Court at Law dismissed all of Appellee’s and Dean’s actions pending 
12 

before it for lack of jurisdiction due to Dean’s death on July 3, 2014. (Ex. P-5). 

Appellee, subsequently, filed a counter-petition in the instant Suit Affecting Parent 

Child Relationship. (CR p. 36). 

i. On December 17th and 18th, 2014 a bench trial was held on the parties’ Suits 

Affecting Parent Child Relationship. The issues before the court were: 

(1) whether appointment of Appellant, the natural parent of the children, as 

sole managing conservator of the children would not be in the best interest of the 

children because the appointment would significantly impair the children’s 

physical health or emotional development; and 

(2) whether Appellant voluntarily relinquished actual care, control and 

possession of the children to Appellee, a nonparent, for a period of one year or 

more; of which time period was not more than 90 days prior to Appellee filing suit 

in the instant case. 

The final judgment of the trial court appointed Appellee as the sole managing 

conservator of all children made the subject of this Suit Affecting Parent Child 

Relationship, and Appellant was appointed possessory conservator of her 

biological children. (CR p.110) 

j. The trial court signed findings of fact and conclusions of law on January 12, 

2015. (CR p.108). Appellant appeals from this final judgment. (CR p.110 and 

132). 
13 

SUMMARY OF THE ARGUMENT 

The Appellee, a non-parent, challenged the Appellant’s, right to be 

appointed sole managing conservator of the children. To succeed in her challenge, 

the Appellee had to rebut the presumption that the best interest of the children 

would be best served by appointing Appellant, the natural parent, as managing 

conservator. This placed a heavy burden on the Appellee, as this parental 

presumption is deeply embedded in Texas law. This parental presumption is 

codified in Sections 153.131 and 153.373 of the Texas Family Code. 

The Appellant’s first argument is that in order for Appellee to rebut the 

parental presumption in set out in Tex. Fam. Code §153.373, the Appellee had the 

burden of proving, by a preponderance of the evidence, that 1) the Appellant had 

voluntarily relinquished actual care, control, and possession of the children to the 

Appellee for a period of one year or more; and 2) that the appointment of the 

Appellee as conservator of the children is in the best interest of the children. When 

Appellant went to Mexico for processing her visa to obtain residency in the United 

States, she left the children with her husband, Dean, not with the Appellee. During 

her involuntary stay in Mexico, the Appellant maintained telephone contact with 

the children through her husband, but had little, if any, contact with Appellee. 

Further, Appellee testified that she obtained possession of the children from her 

son, Appellant’s husband, not from Appellant. Additionally, Appellee further 
14 

testified that she had no evidence that Appellant had voluntarily relinquished the 

children to her. 

Appellee failed to show, by a preponderance of the evidence, that 

appointment of the Appellee as sole managing conservator of the children on 

voluntary relinquishment grounds would be in the children’s best interest. Thus, 

the evidence is legally insufficient to support the trial court’s judgment awarding 

conservatorship to Appellee on voluntary relinquishment grounds. Alternatively, 

and without waiving the legal sufficiency challenge, the evidence is factually 

insufficient to show that Appellee voluntarily relinquished care, control and 

possession of the children for one year or more and appointment of the Appellee as 

sole managing conservator of the children would be in the children’s best interest. 

The court abused its discretion in appointing Appellee as the sole managing 

conservator of the children, and the court’s judgment should be reversed and 

judgment rendered that Appellee be appointed the sole managing conservator of 

the children. Alternatively, should the court find the evidence factually insufficient, 

the trial court’s judgment should be reversed and the case remanded to the trial 

court for a new trial and further fact-finding. 

The Appellant’s second argument is that in order for the Appellee to rebut 

the parental presumption set out in Tex. Fam. Code §153.131, the Appellee had the 

burden of showing, by a preponderance of the evidence, that appointment of the 
15 

Appellant as sole managing conservator of the children would not be in the 

children’s best interest because the appointment would significantly impair the 

children's physical health or emotional development. At trial, the Appellant offered 

little more than her contentions that she would be a better custodian of the children 

or that she has a strong and on-going relationship with the children. 

To discharge her burden of rebutting this parental presumption to prevent 

Appellee from being appointed sole managing conservator of the children, the 

Appellee was required to offer evidence of specific actions or omissions of the 

Appellant that demonstrate that appointing Appellant as conservator would result 

in physical or emotional harm to the children. Neither the Appellee nor the 

witnesses she called to testify offered any evidence that Appellant was presently 

engaged in some detrimental immoral or criminal conduct of the type that this and 

other Texas courts have found to pose a real, rather than a speculative, harm to a 

child’s physical health or emotional development, e.g. illegal drug use, alcohol 

abuse, family violence against her spouse or the children, drug dealing, neglect of a 

child or other criminal activity. 

Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children would 

not be in the children’s best interest because the appointment would significantly 

impair the children's physical health or emotional development. Thus, the evidence 
16 

is legally insufficient to support the trial court’s judgment awarding 

conservatorship to Appellee on impairment grounds. Alternatively, and without 

waiving the legally sufficiency challenge, the evidence is factually insufficient to 

show that appointment of the Appellant as sole managing conservator of the 

children would not be in the children’s best interest because the appointment 

would significantly impair the children's physical health or emotional 

development. 

 Therefore, the evidence is legally and factually insufficient to support the trial 

court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in 

appointing Appellee as sole managing conservator of the children on voluntary 

relinquishment grounds. 

ARGUMENT 

The following issues and sub-issues are joined in this part of the argument 

because they are related to the trial court’s finding of facts that Appellee rebutted 

the statutory parental presumption in Tex. Fam. Code §153.373. 

Issue No. 1. The trial court abused its discretion in appointing Appellee 

as the sole managing conservator and Appellant possessory conservator 

of the children. 

Issue No. 2. The evidence is legally and factually insufficient to support 

the court’s Finding of Fact No. 2. 
17 

Issue No. 3. The evidence is legally and factually insufficient to support 

the court’s Finding of Fact No. 4. 

Issue No. 4. The evidence is legally and factually insufficient to support 

the court’s finding of fact No. 5 that the Appellee had rebutted the 

statutory parental presumption in Tex. Fam. Code §153.373. 

Issue No. 5. The court erred in its Conclusion of Law – Conservatorship 

because the evidence is legally and factually insufficient to support the 

conclusion that Appellee be appointed sole managing conservator of the 

children and Appellee should be appointed possessory conservator. 

Arguments & Authorities 

A. Standard of Review 

A trial court’s decision regarding the conservatorship of a child is reviewed 

under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464, 469 (Tex. 

App.--Fort Worth, 2009). In an abuse of discretion review, legal and factual 

insufficiency are not independent grounds for asserting error, but are merely 

relevant factors in assessing whether a trial court abused its discretion. Id. at 473. 

In applying the abuse of discretion standard, an appellate court in a family law case 

must apply a two-prong analysis: (1) whether the trial court had sufficient evidence 
18 

upon which to exercise its discretion; and (2) whether the trial court erred in 

applying its discretion. Id. 

B. Voluntary Relinquishment of the Children for One Year or More. 

 In order for Appellee to rebut the parental presumption set out in TEX. FAM. 

CODE §153.3731

, the Appellee had the burden of showing, by a preponderance of

the evidence, that 1) the Appellant had voluntarily relinquished actual care, 

control, and possession of the children to the Appellee for a period of one year or 

more; and 2) that the appointment of the Appellee as conservator of the children is 

in the best interest of the children. Critz v. Critz, 297 S.W.3d 464, 470 (Tex. App.--

Fort Worth, 2009). 

The trial court found that Appellant had voluntarily relinquished the actual 

care, control and possession of the children to the Appellee for a period of six 

months or more. (CR pp. 108, Finding of Fact Nos. 2). The evidence is legally 

and factually insufficient to support the trial court’s finding of fact that Appellee 

rebutted the parental presumption in TEX. FAM. CODE §153.373 on grounds that 

Appellant had voluntarily relinquished the actual care, control and possession of 

 

1 Sec. 153.373. VOLUNTARY SURRENDER OF POSSESSION REBUTS PARENTAL PRESUMPTION. 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 nonparent, 

licensed child-placing agency, or authorized agency for a period of one year or more, a portion of which was 

within 90 days preceding the date of intervention in or filing of the suit; and 

(2) the appointment of the nonparent or agency as managing conservator is in the best interest of the child. 
19 

the children to the Appellee for a year or more. See (CR pp. 108-109, Finding of 

Fact Nos. 2, 4, 5). Although, the evidence shows that the children were in 

Appellee’s possession, the Appellant contends that such possession was not the 

result of her having voluntarily relinquished the actual care, control and possession 

of her children to the Appellee. 

What is Voluntary Relinquishment? 

The Family Code does not define “voluntarily relinquish” as that term is 

used in section 153.373. However, at least one court has recently construed 

“voluntary relinquishment” as meaning “to give up by one’s own free will.” See In 

re S.A.H., 420 S.W.3d 911, 922 (Tex. App. --Houston [14th ] Dist., 2014). To 

prove voluntary relinquishment, Appellee carries the burden of proving that 

Appellant placed L.D.J. III, A.Y.J., W.F.J. and C.J. into Appellee’s care and 

possession during on or after December 2012 of her own free will “without any 

legal obligation or other external compulsion to do so.” In re S.A.H., 420 S.W.3d 

911, 923 (Tex. App. –Houston [14th ] Dist., 2014). 

Evidence of Voluntary Relinquishment Offered at Trial: 

At trial, Appellee sought to prove that Appellant had relinquished actual 

care, control and possession of her biological children, L.D.J, III, A.Y.J, and 

 
20 

W.F.J, on December 21, 2012. Appellee avers in her sworn petition that Appellant 

had “voluntarily relinquished” the children to her on December 21, 2012. (CR 

p.36). Yet, at trial, Appellee testified that it was, actually, her son, Dean 

(Appellant’s husband) who had delivered possession of L.D.J, III, A.Y.J, and 

W.F.J to her on December 21, 2012 (3RR pp. 35-37). 

Appellee testified that she was doing what her son wished her to do. (3RR 

pp. 34-37) In connection with this testimony, Appellee referred to her son’s will 

and a power of attorney that he had executed as his wishes for her to remain the 

conservator of his children after his death. (3RR pp. 35-37; Ex. P-7; Ex. CP-7). 

Yet, these instruments are only evidence that Appellant’s husband - the person to 

whom Appellant had entrusted her children2

 and the person from whom Appellee 

received possession of the children3

 – was still exercising control and care of the 

children by planning for their future. Dean’s will and power of attorney were not 

an immediate granting of rights to the children to Appellee, as Appellee contended 

at trial, but rather a conditional grant of rights in the future. 

Appellant entrusted the care, control, and possession of the children to her 

husband when she departed to Mexico, and she also sought to exercise some care 

 

2

 (2RR p. 38, line 12-25, p. 39-44, and p.46, line 5-19). 

3

 (3RR pp. 35-37). 
21 

and control of children, while she was involuntarily outside the United States, by 

requesting that Dean bring the children to visit her in Mexico. (2RR p.28, line 18-

23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). Appellant’s requests to have 

her children travel into Mexico to visit her were denied by her husband because he 

feared for the children’s safety. (2RR pp.117, line 5-25 and 118, line 1-11). 

Appellant’s husband controlled the line of communication between Appellant and 

the children, and he exercised control over the children in Appellant’s absence. 

(2RR p. 32, line 19). The Appellant communicated with the children via telephone, 

in two ways: 1) Dean would call her from Fredericksburg and put the children on 

the phone to talk the Appellant ; and 2) when Dean visited her in Mexico, he would 

call the Appellee and ask that the children be put on the phone so they could talk 

with Appellant. (2RR pp.39-44). This is further evidence of the control that Dean 

maintained over their children while Appellant was unable to lawfully enter the 

United States. (2RR p. 92, line 1-22, pp. 107-109; 3RR pp. 36-37; Ex. P-4, page 

15). It is also evidence that Appellant was exercising parental care and control 

over the children. This also begs a very pivotal question: if in fact, Appellant had 

voluntarily relinquished the care, control, and possession of the children to 

Appellee, wouldn’t she have been contacting Appellee, rather than Dean, to have 

the children visit her in Mexico? 
22 

The will and power of attorney executed by Appellant’s husband, without 

Appellant’s knowledge and consent, were the memorialization of the control over 

their children he maintained throughout the time Appellant was outside the United 

States. These documents prove how he maintained control over their children’s 

future, if upon leaving the United States he was not to return during this 

immigration process due to an occurrence outside his control. (3RR pp. 36-37) 

On cross-examination, Appellee testified that she had no direct evidence that 

proved Appellant had voluntarily relinquished the children to her other than her 

assumption that the preparation of the children’s bags by Appellant for their 

departure with Appellee in December 2012 was evidence of Appellant’s intent to 

voluntarily relinquish actual care, control and possession of the children to her. 

(3RR pp. 77-79). Appellee admits that the possession she enjoyed during the time 

Appellant was to be outside the country was temporary pending Appellant’s return 

to the United States. (3RR p. 37, line 9-25). There is no evidence of any agreement 

between Appellant and Appellee, either oral or written, whereby Appellee 

relinquished voluntary care, control, and possession of the children to Appellee4

. 

See, e.g., In re S.A.H., 420 S.W.3d 911, 914 and 924 (2014) (mother’s granting of 

 

4

 Even assuming, arguendo, that any agreement made by Dean with Appellee could be imputed to Appellant, the 

evidence militates against even Dean having voluntarily relinquished care, control, and possession of the children to 

Appellee, as the evidence reveals an indicia of parenting on his part with respect to the children.
23 

power of attorney over child to great aunt evidenced voluntary relinquishment). 

The evidence shows that Appellant and Appellee had little to no communication 

with one another before and after Appellant left the United States. (2RR pp. 39-44, 

p.46, line 5-19, p.102, line 13-18, p.118, line 1-25; 3RR pp. 84-87). The only 

evidence in the record that can be directly attributed to Appellant having agreed to 

Appellee having possession of the children is when Appellee “begged” for the 

children to stay with her after Appellant and Dean travelled to Fredericksburg in 

April of 2014 to retrieve the children. (3RR p. 45, line 11-25), and Appellant and 

Dean agreed to the children staying with Appellee until the end of the school year. 

(2RR p.p. 121). 

No Evidence of Voluntary Relinquishment 

Thus, while Appellant may have been physically apart from L.D.J. III, 

W.F.J., and A.Y.J. for all of 2014, there is no evidence that she gave up, by her 

own free will, the care, custody, and possession of the children to the Appellee. In 

particular, there is no evidence that Appellee ever had possession of C.J., prior to 

this suit being filed. She did not obtain possession of C.J. until she obtained such 

possession through the Writ of Attachment issued by the Kendall County Court. 

See TEX. FAM. CODE §153.131. 

Assuming, arguendo, that Appellant had made some agreement with

Appellee to have Appellee care for the children while Appellant went to Mexico to 
24 

take care of her visa matter, this case would be analogous to Critz v. Critz, 297 

S.W.3d 464 (Tex.App.-Fort Worth 2009, no pet.). In Critz v. Critz, the 

grandparents of a child were awarded joint managing conservatorship of a child 

that they alleged had been voluntarily relinquished to them by the biological 

mother of the child for one year or more. Critz v. Critz, 297 S.W.3d 464 

(Tex.App.-Fort Worth 2009, no pet.). The Critz Court determined that even in light 

of some evidence of separation from the child on the part of the mother for over a 

period of one year, there still lacked the relinquishment of control of the child 

given her periodic contact with him. Critz, 297 S.W.3d at 474. 

In the instant case, Appellant was involuntarily prevented from returning to 

the United States which caused her to be away from the children that she had left 

in her husband’s care. (2RR p.28, line 18-23, p.32, line 19, p.37, line 23-25, pp. 

39-44, p.46). Yet, she periodically spoke with her children and discussed their 

well-being with her husband, the children’s parent with access to them while she 

resided in Mexico. (2RR pp.39-44). Appellant’s husband limited her access to the 

children further by denying her requests to have her children brought to her while 

she resided outside the United States. (2RR pp. 39-44, p.46, line 5-19, p.102, line 

13-18, p.118, line 1-25; 3RR pp. 84-87). Additionally, Appellant requested her 

children be returned to her in April 2014 when she and her husband travelled to 
25 

Fredericksburg, Texas to retrieve the children from Appellee; which was 

acknowledged by Appellee. (2RR pp.120-121; 3RR p. 45, line 11-25). 

As in Critz, the evidence of voluntary relinquishment of the children is not 

present in this case. Appellant maintained as much contact with her children as she 

had been accustomed to given the great efforts her husband undertook in caring for 

their children in her absence, and the impossibility of her physical presence within 

the United States given the fragile nature of her immigration status. (2RR p.28, line 

18-23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46). In Critz, the Court found 

sufficient contact with the child by the mother and that she had requested return of 

her child. Critz v. Critz, 297 S.W.3d at 474 & n.39 (voluntary relinquishment 

ended when mother filed answer to conservatorship petition). Assuming, arguendo, 

that Appellant had delivered possession of the children to Appellee rather than to 

her husband, Dean, when she left for Mexico, such act could not be deemed an act 

of free will. Appellant’s inability to physically take possession of her children and 

care for them as she had done prior to her departure was not a completely 

voluntary decision by her but rather a product of an external compulsion, i.e., 

having to leave to take care of her visa matter. This should be considered when 

determining whether Appellee’s physical possession of the children was truly an 

act of voluntary relinquishment by Appellant of her children. (2RR p.28, line 18-

23, p.32, line 19, p.37, line 23-25, pp. 39-44, p.46; Ex. P-). See In re S.A.H., 420 
26 

S.W.3d 911, 922 (Tex. App. --Houston [14th ] Dist., 2014)(relinquishment must be 

an act of free will done without any legal obligation or other external compulsion 

to do so). To require Appellant to have unlawfully entered the United States to visit 

and care for the children in order to be able to defeat Appellee’s conservatorship 

action would be unreasonable because for her to do so would jeopardize her ability 

to lawfully reside within the United States in accordance with federal law. This 

would assure that Appellee could now use this unlawful act against the Appellant 

to rebut the parental presumption in Tex. Fam. Code §153.131. 

 Further, there is no evidence that Appellee ever had possession of the 

youngest child, C.J., at any time prior to July 11, 2014 when she sought and 

obtained a Writ of Attachment for all four children from a Kendall County court. 

(3RR pp. 95-101; Ex. P-5). Nor did Appellee proffer any evidence that she had 

filed any action to assert her rights to the children prior to Appellant and her 

husband travelling to Fredericksburg, Texas to pick up their children. Additionally, 

there was no evidence proffered by Appellee that she had any relationship with the 

child, C.J., after she was born in Mexico. In fact, Appellee provided no evidence 

that she sent gifts, cards, care packages or the like to her new granddaughter 

outside the United States. There was no evidence she ever inquired as to the health 

or well-being of this child. The record is devoid of any evidence that she had the 

possibility to assert any claim of conservatorship to this child, due to fact that she 
27 

did not possess the child the requisite time period prior to the institution of the 

instant cause. (CR p. 59) See Tex. Fam. Code §153. 373. 

Appellee failed to show by a preponderance of the evidence that

appointment of the Appellant as sole managing conservator of the children on this 

relinquishment ground would be in the children’s best interest, thus the evidence is 

legally insufficient to support the trial court’s Finding of Fact Nos. 2, 4, and 5 (CR, 

pp. 108-109). Alternatively, the evidence is factually insufficient, as the great 

weight of the evidence is against any voluntary action or omission on Appellant’s 

part in voluntarily relinquishing actual care, control and possession to any other 

person aside from her husband. (2RR p.28, line 18-23, p.30, line 22-24, p. 31, line 

8-10, p.32 line 19, p.38, line 12-25 and p.46, line 5-19). 

The trial court abused its discretion in appointing Appellee as sole managing 

conservator of the children on grounds of voluntary relinquishment because the 

evidence is legally and factually insufficient to establish that Appellant had 

voluntarily relinquished the care, control, and possession of the children to 

Appellee. 

Therefore, the court abused its discretion in appointing Appellee as the sole 

managing conservator of the children, and the court’s judgment should be reversed 

and judgment rendered that Appellee be appointed the sole managing conservator 

of the children. Alternatively, should the court find the evidence factually 
28 

insufficient, the trial court’s judgment should be reversed and the case remanded to 

the trial court for a new trial and further fact-finding. 

ARGUMENT (cont’d) 

The following issues and sub-issues are joined in this part of the argument 

because they are related to the trial court’s finding of facts that Appellee rebutted 

the statutory parental presumption in TEX. FAM. CODE §153.131. 

Issue No. 6. The trial court abused its discretion in appointing Appellee 

as the sole managing conservator and Appellant possessory conservator 

of the children. 

Issue No. 7. The evidence is legally and factually insufficient to support the 

court’s Finding of Fact No. 2. 

Issue No. 8. The evidence is legally and factually insufficient to support 

the court’s Finding of Fact No. 4. 

Issue No. 9. The evidence is legally and factually insufficient to support 

the court’s finding of fact No. 5 that Appellee rebutted the statutory 

parental presumption in Tex. Fam. Code §153.131. 

Issue No. 10. The court erred in its Conclusion of Law – Conservatorship 

because the evidence is legally and factually insufficient to support the 

conclusion that Appellee be appointed sole managing conservator of the 

children and Appellee should be appointed possessory conservator. 
29 

Arguments & Authorities 

A. Standard of Review 

A trial court trial court’s decision regarding the conservatorship of a child is 

reviewed under an abuse of discretion standard. Critz v. Critz, 297 S.W.3d 464, 

469 (Tex. App.--Fort Worth, 2009). In an abuse of discretion review, legal and 

factual insufficiency are not independent grounds for asserting error, but are 

merely relevant factors in assessing whether a trial court abused its discretion. Id. 

at 473. In applying the abuse of discretion standard, an appellate court in a family 

law case must apply a two-prong analysis: (1) whether the trial court had sufficient 

evidence upon which to exercise its discretion; and (2) whether the trial court erred 

in applying its discretion. Id. 

B. Impairment of Children’s Physical Health or Emotional Development 

“The presumption that the best interest of a child is served by awarding 

custody to a natural parent is deeply embedded in Texas law.” Lewelling v. 

Lewelling, 796 S.W.2d 164, 166 (Tex.1990). Therefore, section 153.1315 of the 

 

5

 Sec. 153.131. PRESUMPTION THAT PARENT TO BE APPOINTED MANAGING CONSERVATOR. 

(a) Subject to the prohibition in Section 153.004, 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, a parent shall be appointed sole managing conservator or 

both parents shall be appointed as joint managing conservators of the child. 

(b) It is a rebuttable presumption that the appointment of the parents of a child as joint managing 

conservators is in the best interest of the child. A finding of a history of family violence involving the 

parents of a child removes the presumption under this subsection. 
30 

Texas Family Code requires that the parent be appointed sole managing 

conservator or both parents be appointed joint managing conservators unless the 

nonparent proves by a preponderance of the credible evidence 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....” Tex. Fam.Code Ann. § 153.131 (Vernon 2008); Gray v. Shook, 

329 S.W.3d 186, 196 (Tex.App.-Corpus Christi 2010). The Family Code's 

presumption in favor of parental custody places a “heavy burden on a nonparent 

seeking custody.” May v. May, 829 S.W.2d 373, 376 (Tex.App.-Corpus Christi 

1992, writ denied). To rebut the presumption, “the evidence must support a logical 

inference that some specific, identifiable behavior or conduct of the parent will 

probably cause significant physical or emotional harm to the child.” Id. at 377. 

Any “close call” must be resolved in favor of the parent over the nonparent. Gray 

v. Shook, 329 S.W.3d at 196 (citing Chavez v. Chavez, 148 S.W.3d 449, 459 

(Tex.App.-El Paso 2004, no pet.)). 

Evidence of Impairment of Children’s Physical Health or Emotional 

Development Offered at Trial: 

In addition to her testimony, Appellee called two witnesses in an attempt to 

prove that Appellant was an unfit parent. The first witness that Appellee called to 

 
31 

testify about the Appellant was Evelia Salinas. Ms. Salinas’ testified about events 

that had occurred about 3 or 4 years prior to the trial date, and had little to no 

bearing on Appellant’s ability to care for her children. (2RR p. 153, line 6-10). Ms. 

Salinas’ testimony can be summarized, as follows: 1) that she had been around 

Appellant and her children approximately four or five times in the year 2011. (2RR 

p. 153, line 6-10); 2) that she believed her brother in law acted inappropriately 

with Appellant at a party; and 3) that she believed Appellant was a devil 

worshipper because of some ring that Appellant was wearing symbolizing a cult 

religion commonly referred to as “La Santa Muerte”. (2RR pp.153-177). 

However, Ms. Salinas’ testimony did not encompass Appellant having any 

problems with alcohol, drugs, criminal convictions or a known history of family 

violence. (2RR pp.153-177). On cross-examination, Ms. Salinas admitted not 

having any personal knowledge about Appellant’s current abilities to care for her 

children or religious beliefs at the time of trial. (2RR pp.171-177). Most 

importantly, Ms. Salinas’ testimony offered no evidence of any specific, 

identifiable behavior, conduct or omissions of the parent that would, to a 

reasonable degree of certainty, probably cause significant impairment to the 

children’s physical or emotional development. (2RR pp.153-177); See Gray v. 

Shook, 329 S.W.3d at 196 (evidence of harm must rise above mere speculation and 

be attributable to a specific, identifiable act or omission of the parent). 
32 

 The second witness called by the Appellee was Herminia Martinez. Ms. 

Martinez offered less evidence than Ms. Salinas of any harm that would come to 

the children if Appellant would be appointed their sole managing conservator. 

(3RR pp.5-19). Mrs. Martinez testified to knowing Appellee for over twenty years 

and knew her both personally and professionally. (3RR p.5-10). Yet, Mrs. 

Martinez had no personal knowledge of Appellant’s parenting abilities nor did she 

ever witness Appellant around Appellant’s children. (3RR p. 17, line 15-20). She 

testified that her personal knowledge was limited to Appellee’s interaction with the 

children and served to simply bolster Appellee’s capability of being a good 

caretaker of the children. (3RR p. 17, line 5-20). Mrs. Martinez’ confirmed the 

lack of communication Appellee had with Appellant before and after she left the 

United States, and that Appellant’s husband communicated with Appellee 

regarding the children. (3RR pp.15-16). Mrs. Martinez offered no evidence of 

Appellant’s use or abuse of alcohol or drugs, no evidence of a criminal history, and 

no evidence of any history of family violence. (3RR pp.5-19). Ms. Martinez 

testimony about Appellee being a capable caretaker of the children does nothing to 

rebut the parental presumption requiring that Appellant be appointed the sole 

managing conservator of the children. The Appellee, as non-parent, has the burden 

to show that appointment of the Appellant parent as managing conservator would 

significantly impair the child, either physically or emotionally, is not met by 
33 

evidence that shows she would be a better custodian of the child or that she has a 

strong and on-going relationship with the child; further, evidence of past 

misconduct alone is insufficient. In re S.M.D. 329 S.W.3d 8 (Tex. App. – San 

Antonio, 2010)(reh’g overruled, rev. dism’d). 

Appellee testified but offered no evidence that proved that Appellant’s 

appointment as sole managing conservator of the children would have significantly 

impaired the children’s physical health or emotional development. (3RR pp. 20-

122). Appellee testified that she had no evidence of Appellant directly 

relinquishing the children to her. (3RR pp.77-79, p.117, line 22-25 and p. 118). 

Appellee’s testimony provides no evidence that Appellant used or abused alcohol 

or drugs, whether she had a criminal record, and/or a history of family violence. 

(3RR p.65). Appellee’s testimony does nothing more than solidify that her only 

motive in this suit was to prevent Appellant from having sole managing 

conservatorship of her children because of an unsubstantiated belief that Appellant 

had a hand in her son’s death and is an unfit mother, generally. (3RR pp. 66-67, 

pp.70-71, pp. 93-95, pp.105-107, pp. 110-113, pp. 115-118, p.121). Yet, Appellee 

could not provide direct evidence of the source of her misguided opinion, nor did 

she provide any evidence that these beliefs were a legitimate concern for the trial 

court. Appellee did not meet the legally or factually sufficient threshold of 

evidence required to prove by a preponderance of such evidence that Appellant’s 
34 

appointment as sole managing conservator of her biological children would 

significantly impair the physical health or emotional development of these 

children. Danet v. Bhan, 436 S.W.3d 793, 796 (Tex. 2014), Critz v. Critz, 297 

S.W.3d 464, 470 (Tex.App.-Fort Worth 2009, no pet.), Chavez v. Chavez, 148 

S.W. 3d 449, 459-60 (Tex.App.-El Paso, no pet.), See, also, Tex. Fam. Code Ann. 

§153.131. 

The only evidence of Appellant’s capability of caring for her children and 

being an active caretaker was provided by the witness, Rose Lerma. (3RR p.129) 

Ms. Lerma helped Appellant from April 2014 until July 2014 with her children and 

the general day to day task of keep her home in order. (3RR p.131-132). Ms. 

Lerma testified the Appellant was a great mother and was a great caretaker of her 

children. (3RR pp.133-135). Ms. Lerma also testified that she never witnessed any 

violence on the part of Appellant, nor did she witness any use of drugs or alcohol 

the entire time she worked for her. (3RR pp. 133-135). Ms. Lerma also testified 

that Appellant had stayed a considerable amount of time with her family in Mexico 

and knew her to be a good person. (3RR p.130). The reason she ceased her 

employment with Appellant was due to the children being removed from 

Appellant’s home on July 11, 2014 by Appellee. (3RR p.133). This witness 

provided the most insight as to Appellant’s ability as a parent and a mother to the 

children in this suit in relation to the time period that these issues were being 
35 

litigated. The testimony of all Appellee’s witnesses was diminished with the honest 

and unbiased testimony offered by Ms. Lerma. She clearly and unequivocally 

voiced her opinion of Appellant as a capable mother that loved her children. (3RR 

pp.129-136). 

To discharge her burden of rebutting this parental presumption to prevent 

Appellant from being appointed sole managing conservator of the children, the 

Appellee was required to offer evidence of specific actions or omissions of the 

Appellant that demonstrate that appointing Appellant as conservator would result 

in physical or emotional harm to the children. Lewelling v. Lewelling, 796 S.W.2d 

164 (Tex. 1990); Brigham v. Brigham 863 S.W.2d 761 (Tex.App.- Dallas, 

1993)(citing Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990)). 

 The Appellee offered no evidence that Appellant was presently engaged in 

some detrimental immoral or criminal conduct that this and other Texas courts 

have found to pose a real, rather than a speculative, harm to a child’s physical 

health or emotional development, e.g. illegal drug use, alcohol abuse, family 

violence against her spouse or the children, drug dealing, or other criminal activity. 

May v. May, 829 S.W.2d 373, 376 (Tex. App.-Corpus Christi 1992, writ denied; 

see, e.g. Compton v. Pfannenstiel, 428 S.W.3d 881 (Tex. App.--Houston [1st Dist.] 

2014)(mother’s drug-dealing, neglect and physical abuse of children would result 

in physical or emotional harm to children). The trial court erred in finding that 
36 

Appellant’s appointment as sole managing conservator was not in the children’s 

best interest, particularly in light of the legally and factually insufficient evidence 

at trial on this issue. Shook v. Gray, 381 S.W.3d 540 (Tex. 2012), See, TEX. FAM. 

CODE ANN. §153.002. 

Gray v. Shook, 329 S.W.3d 186, (Tex.App.-Corpus Christi 2010) should set 

the standard for deciding whether appointing Appellant as sole managing 

conservator will impair the children’s physical or emotional development. In Gray, 

this honorable court reversed the trial court on the grounds that the trial court had 

abused its discretion in appointing a grandmother sole managing conservator of the 

child made the subject of the underlying suit in that case, in light of the absence of 

a preponderance of the evidence that father’s appointment as managing 

conservator of the child would significantly impair the child’s physical health or 

emotional development. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus 

Christi 2010, rev’d). This Court found that the potential for future harm and the 

lack of present harm were insufficient to substantiate a finding of fact or 

conclusion of law that the parent’s appointment as sole managing conservator 

would significantly impair the child’s physical health or emotional development, 

when that speculative harm was simply “uprooting” the child from their present 

residence. Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010, 

rev’d)(citing May v. May, 829 S.W.2d 373, 376-77 (Tex.App.-Corpus Christi 
37 

1992, writ denied), See also, Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 

1990). This court quoted the Texas Supreme Court’s holding in Lewelling v. 

Lewelling that “specific acts or omissions of the parent that demonstrate an award 

of custody to the parent would result in physical or emotional harm to the child” 

would be required to be established by a preponderance of the evidence by the 

nonparent to meet the standard of proof under TEX. FAM. CODE ANN. §153.131. Id. 

The Supreme Court in Shook affirmed the holding by this court regarding the lack 

of legally and factually sufficient evidence proffered at trial by the nonparent. 

Shook v. Gray, 381 S.W.3d 540, 543 (Tex. 2012). The Supreme Court agreed with 

this court’s analysis of the evidence and agreed with remanding the case back to 

the trial court for a hearing on conservatorship. Id. In the instant case, the record is 

devoid of any evidence that Appellant posed an actual danger to her children or 

that future harm would be a concern, if Appellant were to be appointed sole 

managing conservator of her children. (3RR p.117, line 22-25 and p. 118). This 

court should find as it did in Gray that the trial court abused its discretion in 

appointing Appellee sole managing conservator of all four children, without legally 

and factually sufficient evidence to support its Findings of Fact Nos. 2, 4 and 5. 

Gray v. Shook, 329 S.W.3d 186, 197 (Tex.App.-Corpus Christi 2010, rev’d). 

Thus, Appellee failed to show by a preponderance of the evidence that 

appointment of the Appellant as sole managing conservator of the children would 
38 

not be in the children’s best interest because the appointment would significantly 

impair the children's physical health or emotional development. Alternatively, and 

without waiving the legally sufficiency challenge, the evidence is factually 

insufficient to show that appointment of the Appellant as sole managing 

conservator of the children would not be in the children’s best interest because the 

appointment would significantly impair the children's physical health or emotional 

development. 

 Therefore, the evidence is legally and factually insufficient to support the 

trial court’s Finding of Fact Nos. 2, 4 and 5, and the court abused its discretion in 

appointing Appellee as sole managing conservator of the children on voluntary 

relinquishment grounds. The court erred in not making findings of facts which 

demonstrated Appellant’s voluntary relinquishment that would support these

Findings of Fact Nos. 2, 4 and 5. 

The evidence presented by the Appellee to rebut the parental presumption 

through either voluntary relinquishment or significant impairment grounds is 

legally and factually insufficient to support the trial court’s findings of fact. Thus, 

the trial court’s judgment should be reversed and judgment rendered for Appellant. 

Alternatively, should the court find the evidence factually insufficient, the trial 

court’s judgment should be reversed and the case remanded to the trial court for a 

new trial and further fact-finding. 
39 

PRAYER 

 Appellant requests this Court consider the issues presented for review 

and that upon such consideration that the trial court’s judgment should be reversed 

and judgment rendered for Appellant. Alternatively, should the court find the 

evidence factually insufficient, the trial court’s judgment should be reversed and 

the case remanded to the trial court for a new trial and further fact-finding. 

CERTIFICATE OF COMPLIANCE 

Pursuant to Texas Rules of Appellate Procedure 9.4(i)(3), I hereby certify 

that this brief contains 7,542 words (excluding the caption, table of contents, table 

of authorities, signature, proof of service, certification and certificate of 

compliance). This is a computer-generated document created in Microsoft Word, 

using 14-point typeface for all text, except for footnoted which are 12-point 

typeface. In making this certificate of compliance, I am relying on the word count 

provided by the software used to prepare the document. 
40 

Respectfully submitted, 

 PEÑA GARCIA GUERRERO PLLC 

 900 Kerria Avenue 

 McAllen, TX 78501 

 t: 956.948.2221 

 f: 888.422.6821 

 

 By: /s/ Francisco Guerrero II 

 Francisco Guerrero, II 

 SBN 24047588 

 fg@pgglex.com 

 ATTORNEY FOR APPELLANT 

CERTIFICATE OF SERVICE 

 I, Francisco Guerrero II, certify that a true and correct copy of the foregoing 

APPELLANT’S BRIEF was served on opposing counsel in accordance with the 

Texas Rules of Appellate Procedure 9.5 on the 21th day of July 2015 

VIA FAX 

The Firm of Roel "Robie" Flores 

3331 N. Ware Rd 

Mc Allen, Texas 78501 

Ph. (956) 631-7188

Fx. (956) 631-7268

robiefloreslaw@att.net

 /s/ Francisco Guerrero II 

Francisco Guerrero II 
41 

APPENDIX 

Tab No. 1 – Trial court’s final judgment 

Tab No. 2 – Trial court’s findings of fact and conclusions of law 

Tab No. 3 – Critz v. Critz 

Tab No. 4 – Gray v. Shook 

Tab No. 5 – Shook v. Gray 
























Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 1 - 

297 S.W.3d 464 

Shelley Durrell Haines CRITZ and Roger Allen Critz, Appellant/Cross-Appellant, 

v. 

Roger Allen CRITZ, Joseph C. Critz, and Sharon A. Critz and Shelley Durrell Haines Critz, 

Appellees/Cross-Appellee. 

No. 2-08-015-CV. 

Court of Appeals of Texas, Fort Worth. 

September 17, 2009. 

[297 S.W.3d 467] 

 Jacquelyn A. Flynt, Monique Lopez-Hinkley, Leagl Aid of Northwest Texas, Fort Worth, TX, 

for Shelley Durrell Haines Critz. 

 Jeremy C. Martin, Dallas, TX, for Roger C. Critz. 

 Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, TX, Sarraine S. 

Krause, Law Office of Sarraine S. Krause, Fort Worth, TX, for Joseph C. Critz, Sharon A. Critz. 

 Panel: CAYCE, C.J.; LIVINGSTON and GARDNER, JJ. 

OPINION 

 JOHN CAYCE, Chief Justice. 

 Appellant Shelley Durrell Haines Critz 

complains of the trial court's final decree of 

divorce appointing appellees Joseph C. Critz and 

Sharon A. Critz as joint managing conservators 

of Ryder Critz. We reverse and remand. 

I. Background

 Roger and Shelley Critz met while they 

were both working at a nightclub in the early 

1990s. In February 1998, Shelley gave birth to 

their only child, Ryder, and in September of that 

year, Shelley and Roger married. 

 In February 2003, after an argument about 

Roger's alleged drug use, Roger moved out of 

their house. Shelley remained in the house with 

Ryder for another six months before she learned 

that it was being foreclosed. 

 Both Shelley and Ryder eventually moved 

in with Roger's parents, Joseph and Sharon Critz 

(the Grandparents). While Shelley and Ryder 

were living with the Grandparents, Shelley met 

and began dating Chris Martinez. In January of 

2004, she began staying with Chris and away 

from the Grandparents' house on weekends. In 

May 2004, Shelley became pregnant with 

Chris's child. 

 In June 2004, Shelley moved in with Chris 

and his parents while Ryder continued to stay 

with his Grandparents. During much of the 

remainder of 2004, Shelley was hospitalized due 

to complications from her pregnancy. She saw 

Ryder one day in September, two days in 

October, no days in November, and three days in 

December. She also kept in contact with him by 

phone. During Christmas, she drove to the 

Grandparents' house to see Ryder but she 

became sick on the return trip and miscarried. 

 On January 27, 2005, Roger filed an 

original petition for divorce requesting that he be 

appointed primary joint managing conservator of 

Ryder. The same day, the Grandparents filed a 

petition intervening into the divorce suit seeking 

primary joint managing conservatorship on the 

grounds that Roger and Shelley had voluntarily 

abandoned Ryder, and that appointing Roger or 

Shelley as a primary conservator would 

significantly impair Ryder's physical health or 

emotional development. 

 Shelley filed answers to the petitions, along 

with a counterpetition for divorce 

[297 S.W.3d 468] 

requesting that she be appointed sole managing 

conservator, and contending that appointment of 

the Grandparents or Roger as joint managing 

conservators would not be in Ryder's best 

interests. 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 2 - 

 On May 12, 2005, the trial court issued 

temporary orders that gave the Grandparents 

primary custody of Ryder, and delineated 

specific times when Shelley and Roger had 

rights to possession. 

 In November 2006, Todd Maslow, a 

caseworker for Family Court Services, 

submitted a social study report recommending 

that Ryder should continue to reside with the 

Grandparents, but that he should continue to see 

Shelley as much as possible. 

 In March 2007, the Grandparents filed a 

"parenting plan" for Ryder, which intended to 

"establish guidelines," "state the importance of 

[Ryder's] well being," and "establish goals for 

emotional support, education, and discipline." 

The parenting plan described their intentions for 

Ryder's education (including plans related to his 

ADHD),1

 his after-school care, his medical 

needs (including a list of health care providers 

he would use), and Roger's and Shelley's 

proposed roles. The plan proposed that they, 

Shelley, and Roger all be appointed as joint 

managing conservators, that the Grandparents 

should establish his primary residence, and that 

Shelley and Roger should have designated times 

of possession, including times during the 

summer and on holidays. 

 The issues regarding Ryder's custody were 

tried before the trial court in March 2007. After 

the parties rested and counsel made closing 

arguments, on March 30, 2007, the trial court 

appointed the Grandparents, Shelley, and Roger 

as joint managing conservators of Ryder, with 

the Grandparents having primary possession and 

the authority to establish his permanent 

residence. The trial court set particular dates and 

times for Shelley to have access to Ryder, but 

stated that Roger would have such access only 

"at such times as is agreed upon" between him 

and his parents. In October 2007, the trial judge 

signed a final decree of divorce that incorporated 

these decisions.2

 In November 2007, Shelley filed a motion 

for new trial, asserting that the evidence 

presented at trial was legally and factually 

insufficient to support the trial court's 

conservatorship decision, and she requested the 

court to issue findings of fact and conclusions of 

law related to its decree.3

 The Grandparents 

responded to the motion for new trial and 

submitted proposed findings of fact and 

conclusions of law, which the trial court 

adopted. In the court's findings of fact, the court 

found that the Grandparents "rebutted the 

parental presumption" and that it was in Ryder's 

best interest that the Grandparents, Shelley, and 

Roger be appointed joint managing 

conservators. This appeal and cross-appeal 

followed. 

II. Issues on Appeal

 Shelley complains of the trial court's order 

appointing the Grandparents as joint managing 

conservators of Ryder. She contends that the 

trial court erred in failing to make specific 

findings of fact identifying the basis for its 

conclusion that the 

[297 S.W.3d 469] 

parental presumption was rebutted by the 

Grandparents. She further contends that the 

evidence is legally and factually insufficient to 

prove that she relinquished control of Ryder for 

more than one year and that she would 

significantly impair Ryder's physical or 

emotional well-being. Roger complains of the 

trial court's failure to specify his periods of 

possession and access. 

 A. Standard of Review

 A trial court's decision regarding the 

conservatorship of a child is reviewed under an 

abuse of discretion standard.4

 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.5

 Merely because a 

trial court may decide a matter within its 

discretion in a different manner than an appellate 

court would in a similar circumstance does not 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 3 - 

demonstrate that an abuse of discretion has 

occurred.6

 An abuse of discretion does not occur 

where the trial court bases its decision on 

conflicting evidence.7

 Furthermore, an abuse of 

discretion does not occur as long as some 

evidence of substantive and probative character 

exists to support the trial court's decision.8

 B. The Parental Presumption

 In her first issue, Shelley contends that the 

trial court abused its discretion when it 

appointed the Grandparents as joint managing 

conservators of Ryder without making specific 

findings related to the parental presumption 

described by sections 153.131 and 153.373 of 

the family code.9

 Section 153.131 provides: 

(a) Subject to the prohibition in 

Section 153.004,10 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, a 

parent shall be appointed sole 

managing conservator or both 

parents shall be appointed as 

joint managing conservators of 

the child. 

(b) It is a rebuttable 

presumption that the 

appointment of the parents of a 

child as joint managing 

conservators is in the best 

interest of the child. A finding 

of a history of family violence 

involving the parents of a child 

removes the presumption 

[297 S.W.3d 470] 

under this subsection.11

 Section 153.373 states that 

[t]he 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 

nonparent, licensed childplacing agency, or authorized 

agency for a period of one year 

or more, a portion of which was 

within 90 days preceding the 

date of intervention in or filing 

of the suit; and 

(2) the appointment of the 

nonparent or agency as 

managing conservator is in the 

best interest of the child.12

 Collectively, these statutes provide that it is 

presumed that the appointment of "the parents of 

a child" as joint managing conservators is in the 

best interest of the child.13 To overcome this 

presumption, a court must find that (1) 

appointment of the parents would significantly 

impair the child's physical health or emotional 

development, (2) the parents have exhibited a 

history of family violence, or (3) the parents 

voluntarily relinquished care, control, and 

possession of the child to a non-parent for a year 

or more.14 A trial court's conclusion that the 

parental presumption has been rebutted must be 

supported by specific findings of fact identifying 

the factual basis for the finding, and the failure 

to make such findings constitutes error.15

 Shelley contends that the trial court was 

required to specifically make one of these three 

findings to appoint the Grandparents as joint 

managing conservators. Relying on a Texas 

Supreme Court opinion construing a former 

version of the family code, the Grandparents 

assert that the presumption does not apply and, 

therefore, no findings were required because 

Shelley and Roger were also made joint 

managing conservators. 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 4 - 

 In Brook v. Brook,16 the supreme court 

construed former family code section 14.01, 

which provided, in pertinent part, as follows: 

(a) In any suit affecting the 

parent-child relationship, the 

court may appoint a sole 

managing conservator or may 

appoint joint managing 

conservators. A managing 

conservator must be a suitable, 

competent adult, or a parent, or 

an authorized agency. If the 

court finds that the parents are 

or will be separated, the court 

shall appoint at least one 

managing conservator. 

(b) A parent shall be appointed 

sole managing conservator or 

both parents shall be appointed 

as joint managing conservators 

of the child unless: 

(1) 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.17

[297 S.W.3d 471] 

 The supreme court held that section 14.01 

authorized a trial court to appoint a non-parent 

as a joint managing conservator without proof 

that appointment of a parent or the parents 

would significantly impair the child's health or 

development, so long as the non-parent shares 

custody with a parent.18

 Unlike current section 153.131, former 

section 14.01 contained no rebuttable 

presumption that appointment of both parents as 

joint managing conservators is in the child's best 

interest.19 At the time Brook was decided, a trial 

court was authorized to appoint parents as joint 

managing conservators only upon finding that 

the appointment would be in the child's best 

interest.20 This is no longer the law.21

 Under current section 153.131, it is now 

presumed that the appointment of both parents 

as joint managing conservators is in the child's 

best interest.22 This substantive change in the 

parental presumption law is not addressed by the 

dissent. When Brook was decided, there was no 

rebuttable presumption that both parents be 

appointed joint managing conservators. Thus, 

under former law, so long as one parent was 

appointed a joint managing conservator, as was 

the case in Brook, the parental presumption was 

satisfied. Under section 153.131, however, a 

non-parent may not be appointed a joint 

managing conservator without overcoming the 

presumption as to both parents.23 The plain 

wording of the statute makes clear that this 

presumption applies when a non-parent seeks 

managing conservatorship in lieu of or in 

addition to both parents. There is no language in 

section 153.131 that indicates that the 

presumption is inapplicable to the appointment 

of non-parents as joint managing conservators 

when the trial court also appoints one or both 

parents. Nor does Brook compel this result. 

[297 S.W.3d 472] 

 The dissent suggests that we have departed 

from binding precedent of the supreme court and 

of this court. We clearly have not. Brook, and 

this court's nearly twenty-year-old decision 

following it,24 interpreted and applied a former 

statute that did not contain a parental 

presumption requiring that both parents be 

appointed joint managing conservators unless 

rebutted. Because Brook construed a repealed 

statute that is substantively different than the 

statute at issue here, we are, of course, not 

bound under the doctrine of stare decisis by the 

Brook court's interpretation of the repealed 

statute.25

 The dissent takes the novel position that the 

presumption does not apply to the appointment 

of the joint managing conservators in this case, 

but that it does apply to which joint managing 

conservator should determine the child's 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 5 - 

permanent residence. As written by the 

legislature, however, section 153.131 contains 

no language that indicates a legislative intent 

that a parental presumption applies to the issue 

of primary custody apart from the determination 

of joint managing conservatorship. The title to 

section 153.131 is "Presumption That Parent to 

be Appointed Managing Conservator."26

Moreover, the statute expressly refers to a 

presumption that a parent should be appointed 

"sole managing conservator," or that both 

parents should be appointed "joint managing 

conservators"—it makes no reference to a 

separate presumption for determining which 

joint managing conservator chooses the child's 

permanent residence.27 To reach the result that 

the dissent advocates, we would be required to 

legislate from the bench and convert the 

managing conservator presumption into a 

"primary custody" presumption with no statutory 

authority for doing so. We are not inclined to do 

this.28

 We hold that the trial court correctly 

followed express provisions of the family code 

by applying the parental presumption to the 

appointment of the Grandparents as joint 

managing conservators in this case. Upon 

finding that the parental presumption was 

rebutted, however, the trial court failed to make 

findings specifically stating how the 

presumption was rebutted.29 The failure to make 

such findings is error.30 This error was waived, 

however, because Shelley did not timely request 

additional findings of fact.31 Shelley's first issue 

is overruled. 

[297 S.W.3d 473] 

 C. The Sufficiency of the Evidence to 

Overcome the Parental Presumption

 We now turn to Shelley's contention in her 

second issue that insufficient evidence was 

presented by the Grandparents to rebut the 

presumption through either voluntary 

relinquishment or significant impairment 

grounds.32

 1. Standards of Review

 In an abuse of discretion review, legal and 

factual insufficiency are not independent 

grounds for asserting error, but are merely 

relevant factors in assessing whether a trial court 

abused its discretion.33 Thus, in applying the 

abuse of discretion standard, an appellate court 

in a family law case must apply a two-prong 

analysis: (1) whether the trial court had 

sufficient evidence upon which to exercise its 

discretion; and (2) whether the trial court erred 

in applying its discretion.34

 We may sustain a legal sufficiency 

challenge only when (1) the record 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.35 In 

determining whether there is legally sufficient 

evidence to support the finding under review, we 

must consider evidence favorable to the finding 

if a reasonable factfinder could and disregard 

evidence contrary to the finding unless a 

reasonable factfinder could not.36

 When reviewing an assertion that the 

evidence is factually insufficient to support a 

finding, we set aside the finding only if, after 

considering and weighing all of the evidence in 

the record pertinent to that finding, we 

determine that the evidence supporting the 

finding is so weak, or so contrary to the 

overwhelming weight of all the evidence, that 

the answer should be set aside and a new trial 

ordered.37

 2. Voluntary Relinquishment of Ryder 

for a Period of One Year or More

 The Grandparents contend that Shelley's 

sparse contact with Ryder from January 2004 to 

January 2005 proves that she voluntarily 

relinquished actual care, control, and possession 

of Ryder to them. We disagree. 

 Between January and April of 2004, 

Shelley maintained her permanent residence 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 6 - 

with Ryder and saw him on a majority of days. 

While she was absent from Ryder on several 

occasions during that time period, there is no 

evidence that she intended to surrender the care 

of Ryder. 

[297 S.W.3d 474] 

 After Shelley moved out of the 

Grandparents' residence in June 2004, the time 

she spent with Ryder decreased.38 But, the 

testimony of both Shelley and Sharon shows 

that, although Shelley was often physically 

separated from Ryder in the latter part of 2004, 

she did not intend to relinquish control of him. 

 Shelley testified that she had agreed with 

the Grandparents that Ryder would stay with 

them long enough to complete his school year, 

and that she would change Ryder's school and 

have him live with her the following year. 

Shelley stated that she talked with the 

Grandparents about this plan "[w]eekly from the 

moment that [she] didn't stay at their house" and 

that she was "made to believe" that the change 

was going to happen. Sharon testified that she 

was aware of these plans when Shelley moved 

out of her house, and that she knew that 

Shelley's intention was to take Ryder back. She 

also admitted that even when Shelley moved 

away, she was "still involved in decisions 

regarding Ryder" and, most importantly, that 

Shelley "never actually, really relinquished ... 

control completely." 

 Thus, while Shelley may have been 

physically apart from Ryder for a substantial 

part of 2004, there is no evidence that she 

voluntarily relinquished actual care, custody, 

and control of him to the Grandparents.39

 3. Significant Impairment of Ryder's 

Physical Health or Emotional Development

 Shelley also contends that the evidence is 

legally and factually insufficient to establish that 

appointing her and Roger as joint managing 

conservators would significantly impair Ryder's 

physical health or emotional development.40

Although there is some evidence to support a 

finding of significant impairment, we agree with 

Shelley that the evidence is factually insufficient 

to support such a finding. 

 Impairment must be proved by a 

preponderance of the evidence indicating that 

some specific, identifiable behavior or conduct 

of the parent, demonstrated by specific acts or 

omissions of the parent, will probably cause that 

harm.41 This is a heavy burden that is not 

satisfied by merely 

[297 S.W.3d 475] 

showing that the non-parent would be a better 

custodian of the child.42 "Close calls" should be 

decided in favor of the parent.43

 Evidence of past misconduct is not alone 

sufficient to show present unfitness.44 "If the 

parent is presently a suitable person to have 

custody, the fact that there was a time in the past 

when the parent would not have been a proper 

person to have such custody is not controlling."45

 The evidence offered at trial was as 

follows: 

 Diane Booth, a licensed social worker who 

conducted another study in 2006 after Maslow 

issued his report, testified that Joseph and 

Sharon were "great grandparents" and that 

Shelley was a good mom who never put Ryder 

in any danger and was generally doing a good 

job parenting him. She also reported that Roger 

had drug addiction problems, that he described 

himself as a "practicing alcoholic," and that he 

seemed to be angry over the fact that he had 

been adopted, but that he had steady work and 

that he "loved being around Ryder." She further 

explained that when she met with Ryder, he was 

happy, but he was also confused about his living 

situation regarding the various people who had 

requested custody of him. She also testified that 

she received a letter from Ryder stating that he 

wanted to live with Shelley. 

 Booth recommended that Ryder be placed 

with Shelley and opined that it would be in 

Ryder's best interest if the Grandparents fulfilled 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 7 - 

a secondary role in a more typical grandparent 

relationship with Ryder. 

 Barbara Martinez, Chris's mother, testified 

that Shelley was a good mother who took good 

care of Ryder when he was at her house. 

According to Mrs. Martinez, Shelley bathed 

Ryder, did his laundry, disciplined him, and 

helped him with his homework. Kyra Anderson, 

Ryder's first grade teacher during 2004 and 

2005, testified that the Grandparents were very 

involved in his school activities and in the 

progress Ryder was making in the classroom, 

that Ryder "fully enjoyed being with" them, and 

that Shelley was not involved with his 

schooling.46

 Dee Henderson, who had custody of 

Shelley's daughter Lexi, testified that she had 

concerns about Shelley's ability as a parent 

because Shelley was unreliable and had only 

limited contact with Lexi.47 She also testified, 

however, that she had no concerns that Lexi 

would be physically harmed while with Shelley, 

that she had no concerns about Lexi's safety at 

the Martinezes' house, and that she had never 

seen Shelley be physically or verbally abusive to 

Lexi or Ryder. 

 Cathy Baczynski, a licensed professional 

counselor, testified that, during counseling, 

Roger discussed identity issues related to 

[297 S.W.3d 476] 

his adoption as well as his substance abuse 

history, his need to overcome his ADHD, his 

frustration about living with his parents, and his 

lack of communication with Shelley. Baczynski 

also explained that she met with Ryder and 

gained the impression from him that Roger 

needed to be much more involved in Ryder's 

life. She also stated that Ryder seemed to be 

happy living with his Grandparents and that his 

needs were well met in their home, but that he 

would like to spend more time with Shelley and 

that, as a general rule, it is always best for a 

child's parents to have custody if possible. She 

concluded that Roger has made positive strides, 

but he does not have the ability to be Ryder's 

primary managing conservator. 

 Roger testified that he resided with his 

parents for three years preceding the trial, that he 

was currently employed in the information 

technology field, and that he had previously 

been employed as a bartender at several 

locations. He stated that two years had passed 

from the last time he used illegal drugs and that 

he drank alcohol about once a week at the time 

of trial, becoming drunk occasionally. He 

expressed a desire to be a good father and also 

gave his opinion that Ryder should continue to 

reside with the Grandparents because he felt 

Ryder needed more "structure and support," but 

that Shelley should have equal time with Ryder 

and that she "loves [Ryder] very much." 

However, Roger also testified that in January 

2005 Shelley threatened to take Ryder away so 

that he and the Grandparents would never see 

Ryder again.48 He further said that when he first 

separated from Shelley he was concerned for 

Ryder's safety because he believed Shelley did 

not take care of Ryder's physical needs. 

 Sharon testified that she and Joseph first 

began to keep Ryder at their home every other 

weekend when he was born, and then they 

progressed to keeping him every weekend and 

part of the summer before Shelley and Ryder 

moved in with them in 2003. She also contended 

that Shelley was not very involved in Ryder's 

early education and that she often returned 

Ryder late from her Wednesday visits with him. 

Sharon explained that upon picking up Ryder 

from one of his visits to the Martinezes' house, 

she became concerned about broken glass 

surrounding a trampoline, a murky swimming 

pool, and an open flame on the stove, which 

Shelley stated was used for heating. She was 

also concerned that Shelley had taken Ryder to 

the nightclub during a poker tournament that 

was hosted there. 

 Sharon said that she saw Shelley slap Ryder 

one time, that Shelley told her that she spanks 

Ryder, and that after returning from visits with 

Shelley, Ryder had behavioral problems. She 

conceded, however, that Ryder missed Shelley 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 8 - 

and that he and Shelley loved each other. She 

requested that the court allow her and Joseph to 

keep Ryder during school weeks and split the 

rest of Ryder's access equally between Roger 

and Shelley. 

 Joseph testified that he was concerned that 

Shelley could not provide a stable financial 

environment for Ryder because she did not have 

a paying job, did not have a car in her name, and 

did not have her own place to live. Joseph 

described that Roger had taken a more active 

role in Ryder's life, had obtained a respectable 

job, had provided health insurance for Ryder, 

and had sought help from a therapist to deal with 

Roger's emotional problems. 

 Todd Maslow (who submitted the original 

social study report) testified that, despite his 

recommendation that Ryder 

[297 S.W.3d 477] 

should remain with his Grandparents, he would 

not have concerns about Ryder's safety if he 

stayed with Shelley and did not believe that 

Ryder living with Shelley would significantly 

impair Ryder's physical health or emotional 

development.49 He also testified that when he 

talked to Ryder when completing his initial 

study, Ryder told him he wanted to live with 

Shelley. 

 The Grandparents also rely on evidence of 

Shelley's history of drug use and her living and 

financial conditions as proof that Ryder's 

physical and emotional health would be 

impaired by the appointment of Shelley and 

Roger as joint managing conservators. At the 

time of trial, however, Shelley was not taking 

any medications. While she admitted that she 

had previously been dependent on drugs 

prescribed for her multiple sclerosis,50 and 

evidence established that she had taken high 

dosages of several types of prescription 

medications that sometimes negatively affected 

her,51 she testified that at the time of trial, she 

was not taking any prescription medications, she 

had no current symptoms from her multiple 

sclerosis, and she only had one prescription—for 

Xanax—filled within the previous six months. 

No evidence was presented indicating that 

Shelley was still taking high dosages of 

prescription medications at the time of or 

recently before trial; in fact, a "prescription 

profile" exhibit submitted into evidence by the 

Grandparents listed no prescriptions for Shelley 

after 2005. Thus, while Shelley's drug use may 

have affected her fitness as a mother in the past, 

there was no evidence presented of any current 

drug use that would cause significant 

impairment to Ryder's physical health or 

emotional development in the present. 

 With regard to Shelley's living and 

financial conditions, the evidence shows that, at 

the time of trial, Shelley and Chris, who also has 

a history of drug abuse, were living together at 

his parents' home. Chris, however, offered 

uncontroverted testimony that he had not used 

illegal drugs in at least the four years preceding 

trial. Also, the evidence established that at the 

Martinezes' five bedroom, two story house, 

Ryder had his own room and that Shelley's work 

at the nightclub on weekends could allow her to 

be a stay-at-home mom for Ryder during 

weekdays.52 Shelley's residence at the 

Martinezes' house seemed to be stable. Mrs. 

Martinez testified that Shelley had become like a 

daughter 

[297 S.W.3d 478] 

to her and that if Chris's and her relationship 

became estranged, Shelley could continue to live 

at her house with Ryder. Although, as the 

Grandparents point out, Shelley does not own or 

lease a vehicle, carry health insurance, or 

maintain paid employment, Mrs. Martinez 

testified that Shelley has access to four vehicles 

at her house and that she is "free to take them 

anytime," Roger carries insurance for Ryder, and 

Shelley's lack of paid employment is "no 

evidence" of a potential for significant 

impairment to Ryder.53

 Finally, the Grandparents cite evidence in 

the record related to certain conditions at the 

Martinezes' house that they believe could cause 

harm to Ryder. For example, they note that the 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 9 - 

Martinezes' backyard had a murky pool that was 

filled with leaves and a trampoline that had 

broken glass underneath it. Mrs. Martinez, on 

the other hand, testified that Ryder was never 

allowed unattended outside, that an alarm 

sounded if any door in the house was opened, 

and that if the trial judge was concerned about 

the safety of the pool, she would remedy those 

concerns. Sharon testified that she had learned 

that the broken glass was from a patio table that 

had blown into the pool during a windstorm; 

there was no evidence in the record as to how 

recently the windstorm had occurred. Sharon 

was also concerned at trial about an open flame 

used to heat the Martinezes' house, but she 

admitted that Ryder had been taught about fire 

hazards and that he was unlikely to attempt to 

play with the flame. 

 Viewing the entire record under the legal 

and factual sufficiency standards of review 

articulated above, we conclude that, while there 

is some evidence that placing Ryder under the 

joint managing conservatorship of Shelley and 

Roger might significantly impair the physical 

health and emotional development of Ryder, the 

evidence is factually insufficient to support a 

finding of such impairment. 

III. Conclusion

 We hold that the trial court abused its 

discretion by appointing the Grandparents as 

joint managing conservators because the 

evidence is insufficient to support the trial 

court's finding that the parental presumption was 

rebutted. There is no evidence that Shelley 

voluntarily relinquished actual care, custody, 

and control of Ryder for one year or more, and 

the evidence is factually insufficient to prove 

that the appointment of Ryder's parents as joint 

managing conservators would significantly 

impair Ryder's physical health or emotional 

development. We, therefore, reverse the 

provisions of the decree pertaining to joint 

managing conservatorship, render judgment that 

a non-parent shall not be appointed joint 

managing conservator based on Shelley's alleged 

voluntary relinquishment of Ryder's care, 

custody, and control for the period between 

January 2004 and January 2005, and remand the 

case for a new trial on the issue of whether the 

appointment of Shelley and Roger as joint 

managing conservators would not be in the best 

interest of Ryder because such an appointment 

would significantly impair his physical health or 

emotional development.54

 LIVINGSTON, J., filed a dissenting and 

concurring opinion. 

--------------- 

Notes: 

1. Ryder was diagnosed with ADHD while in the 

second grade. 

2. Specifically, the decree granted Shelley possession 

of Ryder on three weekends per month, Thursday 

evenings, spring breaks, some of the time during 

Ryder's Christmas break, Mother's Day, some other 

holidays, and forty-two days during the summer, but 

gave possession to the Grandparents at "all other 

times not specifically designated." 

3. See Tex.R. Civ. P. 296. 

4. See In re M.P.B., 257 S.W.3d 804, 811 (Tex. App.-

Dallas 2008, no pet.); Earvin v. Dep't of Family & 

Protective Servs., 229 S.W.3d 345, 350 (Tex.App.-

Houston [1st Dist.] 2007, no pet.). 

5. Downer v. Aquamarine Operators, Inc., 701 

S.W.2d 238, 241-42 (Tex. 1985), cert. denied, 476 

U.S. 1159, 106 S.Ct. 2279, 90 L.Ed.2d 721 (1986). 

6. Id.

7. In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) 

(orig. proceeding). 

8. See Butnaru v. Ford Motor Co., 84 S.W.3d 198, 

211 (Tex.2002). 

9. Tex. Fam.Code Ann. §§ 153.131, .373 (Vernon 

2008). 

10. Section 153.004 states, in part, that in 

determining conservatorship, a court shall consider 

evidence of the intentional use of abusive physical 

force and that a court may not "appoint joint 

managing conservators if credible evidence is 

presented of a history or pattern of past or present 

child neglect, or physical or sexual abuse by one 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 10 - 

parent directed against the other parent, a spouse, or a 

child ... that results in the other parent becoming 

pregnant with the child." Tex. Fam. Code Ann. § 

153.004(a)-(b) (Vernon 2008); see In re R.T.H., 175 

S.W.3d 519, 521 (Tex. App.-Fort Worth 2005, no 

pet.). 

11. Tex. Fam.Code Ann. § 153.131. 

12. Id. § 153.373. 

13. Id. §§ 153.131(a),(b), .373. 

14. Id. §§ 153.131(a),(b), .373; see In re N.J.G., 980 

S.W.2d 764, 766 n. 1 (Tex.App.-San Antonio 1998, 

no pet.). 

15. Chavez v. Chavez, 148 S.W.3d 449, 459-60 

(Tex.App.-El Paso 2004, no pet.); see Tex. Fam.Code 

Ann. §§ 153.004, .131, .373. 

16. 881 S.W.2d 297 (Tex. 1994). 

17. Act of May 29, 1993, 73rd Leg., R.S., ch. 766, § 

1, sec. 14.01(a), 1993 Tex. Gen. Laws 2989, 2989, 

repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 

20, § 2, 1995 Tex. Gen. Laws 282, 282; Act of May 

28, 1989, 71st Leg., R.S., ch. 370, § 1, sec. 

14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461, 

repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 

20, § 2, 1995 Tex. Gen. Laws 282, 282. 

18. Brook, 881 S.W.2d at 300. 

19. See Tex. Fam.Code Ann. § 153.131(b), Historical 

and Statutory Notes ("Acts 1995, 74th Leg., ch. 751 

... added subsec. (b)," which provides for "rebuttable 

presumption that the appointment of the parents of a 

child as joint managing conservators is in the best 

interest of the child"). 

20. See Act of May 14, 1991, 72nd Leg., R.S., ch. 

161, § 2, 1991 Tex. Gen. Laws 771, 771, repealed by

Act of April 6, 1995, 74th Leg., R.S., ch. 20, § 2, 

1995 Tex. Gen. Laws 282, 282; see also Brook, 881 

S.W.2d at 298. 

21. While we have found no legislative history 

beyond the changes made to the current statute after 

section 14.01 was repealed that expressly indicates 

that the legislature intended to overrule or nullify 

Brook when it repealed section 14.01, it is clear from 

a comparison of the two statutes that the post-Brook

changes to the statutes were substantive. 

22. See Tex. Fam.Code Ann. § 153.131(a) ("both 

parents shall be appointed as joint managing 

conservators of the child") (emphasis added), § 

153.131(b) ("It is a rebuttable presumption that the 

appointment of the parents of a child as joint 

managing conservators is in the best interest of the 

child.") (emphasis added). 

23. See Tex. Fam.Code Ann. § 153.131(a) ("both 

parents shall be appointed as joint managing 

conservators of the child") (emphasis added), § 

153.131(b) ("It is a rebuttable presumption that the 

appointment of the parents of a child as joint 

managing conservators is in the best interest of the 

child.") (emphasis added). The dissent contends that 

the presumption does not apply to the grandparents 

because both parents were appointed as joint 

managing conservators. But section 153.131 clearly 

requires that the presumption favoring the 

appointment of both parents as joint managing 

conservators be rebutted by any non-parent seeking a 

joint managing conservatorship appointment in lieu 

of or in addition to both parents. 

24. See Connors v. Connors, 796 S.W.2d 233, 239 

(Tex.App.Fort Worth 1990, writ denied). 

25. See Lal v. Harris Methodist Fort Worth, 230 

S.W.3d 468, 473-74 (Tex.App.-Fort Worth 2007, no 

pet.) (rejecting argument that statute that was 

substantively amended should be construed as if it 

had not been amended). 

26. Tex. Fam.Code Ann. § 153.131 (emphasis 

added). 

27. Id.

28. Moreover, the two El Paso Court of Appeals 

opinions on which the dissent relies actually support 

the conclusion that the parental presumption only 

applies to primary custody in the context of 

determining joint managing conservatorship between 

a parent and non-parent. See Sotelo v. Gonzales, 170 

S.W.3d 783, 788 (Tex.App.El Paso 2005, no pet.); In 

re De La Pena, 999 S.W.2d 521, 534-35 (Tex.App.El 

Paso 1999, no pet.). 

29. The trial court also offered no explanation for 

why he appointed Shelley and Roger joint managing 

conservators of Ryder after concluding that the 

presumption was rebutted, i.e., that it would not be in 

Ryder's best interest to appoint his parents as joint 

managing conservators. 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 11 - 

30. Chavez, 148 S.W.3d at 459-60. 

31. Tex.R. Civ. P. 297, 299; Chavez, 148 S.W.3d at 

459-60. 

32. Joseph and Sharon have not contended on appeal 

that the evidence supported a finding that Shelley 

exhibited a history of family violence, so we will not 

analyze this ground for rebutting the parental 

presumption. See Tex. Fam.Code Ann. § 153.131(b). 

33. M.P.B., 257 S.W.3d at 811-12; In re M.C.F., 121 

S.W.3d 891, 895, 899 (Tex.App.-Fort Worth 2003, 

no pet.). 

34. M.C.F., 121 S.W.3d at 895. 

35. Uniroyal Goodrich Tire Co. v. Martinez, 977 

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

1040, 119 S.Ct. 1336, 143 L.Ed.2d 500 (1999); 

Robert W. Calvert, "No Evidence" and "Insufficient 

Evidence" Points of Error, 38 Tex. L. Rev. 361, 362-

63 (1960). 

36. Cent. Ready Mix Concrete Co. v. Islas, 228 

S.W.3d 649, 651 (Tex.2007); City of Keller v. 

Wilson, 168 S.W.3d 802, 807, 827 (Tex.2005). 

37. Pool v. Ford Motor Co., 715 S.W.2d 629, 635 

(Tex. 1986) (op. on reh'g); Garza v. Alviar, 395 

S.W.2d 821, 823 (Tex. 1965); In re King's Estate,

150 Tex. 662, 664-65, 244 S.W.2d 660, 661 (1951). 

38. According to Sharon's calendar, Shelley saw 

Ryder only twenty times from June through 

December 2004. 

39. Even if we were to conclude that some evidence 

of relinquishment existed beginning in June 2004, 

when Shelley moved out of the Grandparents' home, 

she filed answers to Roger's petition and the 

Grandparent's petition in intervention in February 

2005 and, therefore, ended any period of voluntary 

relinquishment approximately seven months after 

leaving the Grandparents' house to leave Ryder with 

his grandparents. See In re S.W.H., 72 S.W.3d 772, 

777 (Tex.App.Fort Worth 2002, no pet.). Moreover, 

in May 2005, the trial court entered a temporary 

order restricting Shelley's access to Ryder. In light of 

such an order, any relinquishment by Shelley that 

occurred while the order was in effect was 

involuntary. Id. (concluding that a temporary 

restraining order entered against a parent ended the 

parent's period of voluntary relinquishment); see also 

In re M.W., 959 S.W.2d 661, 668 (Tex.App.-Tyler 

1997, writ denied) (suggesting that voluntary 

relinquishment ends when temporary restrictions are 

ordered). 

40. See Tex. Fam.Code Ann. § 153.131(a); Sotelo,

170 S.W.3d at 788. 

41. Lewelling v. Lewelling, 796 S.W.2d 164, 167 

(Tex. 1990); Whitworth v. Whitworth, 222 S.W.3d 

616, 623 (Tex.App.-Houston [1st Dist.] 2007, no 

pet.) (stating that the "link between the parent's 

conduct and harm to the child may not be based on 

evidence which merely raises a surmise or 

speculation"); see Tex. Fam.Code Ann. § 105.005 

(Vernon 2008) (stating that findings in family law 

cases must generally be proved by the preponderance 

standard). 

42. Lewelling, 796 S.W.2d at 167. 

43. Id. at 168. 

44. Id.

45. May v. May, 829 S.W.2d 373, 377 (Tex. App.-

Corpus Christi 1992, writ denied) (op. on reh'g); see 

S.W.H., 72 S.W.3d at 777-78 (holding that the 

mother's past severe drug addiction and past 

incarcerations related to drug use did not create a 

present likelihood of significant impairment to her 

child). 

46. At trial, Shelley testified that she visited Ryder's 

school two days a week and that she went to his 

school-related activities. 

47. Shelley has had six pregnancies. Among these, 

she had a daughter in 1994 named Lexi whom she 

lived with for only six months and shared access to at 

the time of trial, and she also had a baby with Chris 

after her miscarriage, who was six months old when 

the trial began. 

48. Sharon's testimony confirmed the threat. 

49. Specifically, Maslow stated that the move to live 

with Shelley "could affect [Ryder's] emotional 

adjustment; but seriously impair, no." He did, 

however, testify that he believed the Grandparents 

and Roger were providing Ryder with security in his 

current placement, that Ryder should remain with 

them, and that he retained some concerns about some 

of Shelley's circumstances and her truthfulness on 

some of the responses she gave to him in his initial 

survey. 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 12 - 

50. Shelley had taken many prescription medications, 

including Suboxone, Seroquel, Hydrocodone, 

Ambien, Lunesta, Lamictal, and Xanax at various 

times before trial. These medications sometimes 

made her dizzy or drowsy with slurred speech. 

Sharon testified that in 2003, Shelley often left 

medication out in places that Ryder had access to, 

and that in 2005, during one of Shelley's scheduled 

visits with Ryder, the medication caused Shelley to 

sleep for a prolonged period on Ryder's bedroom 

floor. 

51. A pharmacist called by Roger's attorney 

described the medications Shelley had taken and 

opined that the dosages were high, but admitted that 

she had limited knowledge of multiple sclerosis and 

the reasons why Shelley's doctors may have been 

prescribing the types and amounts of medication she 

was taking. 

52. Shelley helped manage a nightclub that she, 

Chris, and Chris's parents jointly owned, although she 

received room and board in lieu of salary. Chris's 

mother watched Ryder when Shelley worked. 

53. See Lewelling, 796 S.W.2d at 167. 

54. Because we have reversed and remanded the 

issues related to conservatorship and possession, we 

need not address Roger's sole issue in which he 

contends that the trial court abused its discretion by 

rendering a custody order that, although naming him 

a joint managing conservator of Ryder, did not 

designate his periods of possession and access. See

Tex.R.App. P. 47.1. 

---------------

[297 S.W.3d 479] 

 TERRIE LIVINGSTON, Justice, dissenting 

and concurring. 

 The majority holds that the trial court could 

not appoint Joseph and Sharon (the 

Grandparents) together with Shelley and Roger 

(the Parents) as Ryder's joint managing 

conservators without applying the statutory 

parental presumption and determining that the 

Parents voluntarily relinquished care, custody, or 

control of Ryder or that the Parents' appointment 

as managing conservators would significantly 

impair Ryder's physical health or emotional 

development. See Majority op. at 470-72. The 

majority departs from Texas Supreme Court 

precedent and our own precedent in its holding. 

 The Collective Appointment of the 

Grandparents and the Parents as Ryder's 

Joint Managing Conservators

 Shelley's argument in her second issue that 

the trial court abused its discretion when it 

appointed the Grandparents as Ryder's joint 

managing conservators along with the Parents in 

that same role presupposes that the Grandparents 

were required to overcome the statutory parental 

presumption to gain the appointment. That 

supposition (and the majority's holding that 

follows the supposition) is erroneous. 

 Sections 153.131 and 153.373 of the family 

code establish that to overcome the presumption 

that a parent must be appointed as a managing 

conservator of a child, a court must find that (1) 

appointment of the parent would significantly 

impair the child's physical health or emotional 

development, (2) the parent has exhibited a 

history of family violence, or (3) the parent 

voluntarily relinquished care, control, and 

possession of the child to a nonparent for a year 

or more. Tex. Fam.Code Ann. §§ 153.131, .373 

(Vernon 2008); see In re N.J.G., 980 S.W.2d 

764, 766 n. 1 (Tex.App.-San Antonio 1998, no 

pet.) (citing sections 153.131 and 153.373 in a 

discussion of the parental presumption). But 

these findings are not required when both 

parents are named managing conservators. 

 Section 153.372 authorizes a trial court to 

appoint parents and nonparents together as joint 

managing conservators. Tex. Fam.Code Ann. § 

153.372(a) (Vernon 2008). And Texas Supreme 

Court precedent holds that the mere appointment 

of grandparents as joint managing conservators 

alongside parents in that same role does not 

require a trial court to apply the parental 

presumption to exclude the grandparents; rather, 

the trial court may make such an appointment if 

it deems the appointment to be in the best 

interest of the child. Brook v. Brook, 881 S.W.2d 

297, 299-300 (Tex.1994). 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 13 - 

 In Brook, the court reviewed the collective 

appointment of the mother and the mother's 

parents as joint managing conservators to the 

exclusion of the father and unanimously 

reasoned that the statutory parental presumption 

"contemplates a situation in which neither of the 

parents are awarded" managing conservatorship. 

Id. at 298-99. The court explained that the 

parental presumption applies "only to those 

situations in which a nonparent seeks custody in 

lieu of a natural parent." Id. at 299 (emphasis 

added). Finally, the court noted that "[t]he 

purpose of the statute, to codify the preference 

for giving custody to a parent, has been met in 

the present case. The fact that a nonparent shares 

custody does not detract from the fact that one of 

the child's parents does have custody." Id. at 

300. We have expressly held the same. Connors 

v. Connors, 796 S.W.2d 233, 239 (Tex.App.-

Fort Worth 1990, writ denied) (holding that the 

presumption "does not preclude the appointment 

[297 S.W.3d 480] 

of a parent to serve jointly with a non-parent" 

and that it applies only if "appointment is to be 

denied to both parents"). 

 While Brook cited a previous version of the 

family code, the language analyzed in the 

decision is almost exactly the same as the 

language that now appears in subsection (a) of 

section 153.131.1 Brook, 881 S.W.2d at 298-99. 

The only addition to the presumption statute that 

amounts to anything beyond rearranging words 

is subsection (b) of section 153.131, which states 

that it is "a rebuttable presumption that the 

appointment of the parents of a child as joint 

managing conservators is in the best interest of 

the child." 

 The majority solely relies on subsection (b) 

as having precedent-overruling importance. See

Majority op. at 470-72. But while it is possible 

(although not supported by any specific 

authority or legislative history in the majority's 

opinion beyond the statutory amendment itself) 

that subsection (b) could have modified Brook to 

the extent that the presumption applies unless 

both parents (rather than a single parent, like in 

Brook) are named joint managing conservators, 

that possible modification would have no effect 

on Brook's relation to this case because here the 

trial court did name both of the Parents as joint 

managing conservators, and thus completely 

complied with subsection (b). Thus, for section 

153.131(b) to achieve the precedent-altering 

result that the majority holds it does under the 

facts of this case, it would need to go beyond 

stating that "[i]t is a rebuttable presumption that 

the appointment of the parents of a child as joint 

managing conservators is in the best interest of 

the child" to say something similar to "it is a 

rebuttable presumption that the appointment of 

parents of a child as joint managing conservators 

to the exclusion of all other parties seeking 

custody is in the best interest of the child." It 

does not do so.2

[297 S.W.3d 481] 

 It is "fundamental to the very structure of 

our appellate system that [the Texas Supreme 

Court's] decisions be binding on the lower 

courts." Dallas Area Rapid Transit v. 

Amalgamated Transit Union Local No. 1338,

273 S.W.3d 659, 666 (Tex. 2008), cert. denied,

___ U.S. ___, 129 S.Ct. 2767, 174 L.Ed.2d 284 

(2009); see Lubbock County v. Trammel's 

Lubbock Bail Bonds, 80 S.W.3d 580, 585 

(Tex.2002) (explaining that it "is not the 

function of a court of appeals to abrogate or 

modify established precedent"). Under the 

established precedent of the supreme court in 

Brook and of our own court in Connors, the 

Grandparents did not have to overcome the 

parental presumption for their appointment as 

joint managing conservators, and I would hold 

that their appointment as such is in Ryder's best 

interest under the factors listed in Holley v. 

Adams, 544 S.W.2d 367, 372 (Tex.1976). Thus, 

I would affirm the trial court's conservatorship 

appointment, and I dissent to the portion of the 

majority's opinion reversing the appointment. 

Primary Possession

 Although Brook's application supports 

affirming the Grandparents' appointment as 

managing conservators along with the Parents, it 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 14 - 

does not extend to their award of Ryder's 

primary possession, as challenged by Shelley. 

Section 153.134(b)(1) of the family code states 

that in rendering an order appointing joint 

managing conservators, a court shall designate 

which conservator has the exclusive right to 

determine the primary residence of the child. 

Tex. Fam.Code Ann. § 153.134(b)(1) (Vernon 

2008). 

 In Sotelo v. Gonzales, the El Paso Court of 

Appeals decided that in an original custody 

determination, the parental presumption "applies 

when a non-parent and parent are appointed joint 

managing conservators of a child but the nonparent is given primary custody." 170 S.W.3d 

783, 788 (Tex.App.-El Paso 2005, no pet.) 

(citing In re De La Pena, 999 S.W.2d 521, 534-

35 (Tex.App.-El Paso 1999, no pet.)). The court 

reasoned that to "hold otherwise would permit 

the court to apply the presumption in appointing 

the parent a joint managing conservator but 

nevertheless choose the primary residence of the 

child on the basis of a heads-up best interest test, 

with the court determining which of the parties 

is the `better' choice." Id. This would, according 

to the El Paso Court, result in the "appointment 

of a parent as a managing conservator in name 

only, a paper title which eviscerates the purpose 

of the statute." De La Pena, 999 S.W.2d at 535. 

 In contrast, the San Antonio Court of 

Appeals held in Gardner v. Gardner that the 

parental presumption does not apply to the issue 

of primary possession between parent and 

nonparent joint managing conservators. 229 

S.W.3d 747, 752 (Tex.App.-San Antonio 2007, 

no pet.). In Gardner, the parties agreed to joint 

managing conservatorship of the children at 

issue, and the only remaining custody issue was 

which joint managing conservator was going to 

be awarded the right to determine the primary 

residence. Id. The court reasoned that because 

the "plain words of [section 153.131] do not 

address or contemplate application of the 

[parental] presumption to the issue of primary 

possession, [it] would have to rewrite the statute 

[297 S.W.3d 482] 

in order to reach the result in De La Pena." Id.

 I agree with and would adopt the El Paso 

Court's position, applying the same reasoning as 

expressed in Sotelo and De La Pena. In De La 

Pena, the child's aunt sought managing 

conservatorship to the exclusion of both parents 

in that same role. De La Pena, 999 S.W.2d at 

524-25. Because she sought complete exclusion 

of the parents, the El Paso Court properly 

applied the statutory presumption (as interpreted 

by Brook) that "the best interest of a child is 

served if a natural parent is appointed as a 

managing conservator." Id. at 527. Then, in 

applying the presumption to the primary 

possession issue, the El Paso Court held and 

explained that 

as between a parent and 

nonparent, unless the court finds 

that appointment of the parent 

would not be in the best interest 

of the child because it would 

significantly impair the child's 

physical health or emotional 

development, the parent shall be 

appointed sole managing 

conservator or the parent and 

nonparent shall be appointed 

joint managing conservators. If 

the court chooses the latter, the 

parent shall be awarded 

primary possession unless such 

an order would not be in the 

best interest of the child because 

it would significantly impair the 

child's physical health or 

emotional development.[

3

] 

 Id. at 534-35 (emphasis added). 

 Our precedent establishes that the basis of 

the "deeply embedded" statutory parental 

presumption is to protect the "natural affection 

usually flowing between parent and child." In re 

M.N.G., 113 S.W.3d 27, 35 (Tex.App.-Fort 

Worth 2003, no pet.). Also, a parent's rights to 

"the companionship, care, custody, and 

management" of his or her children are 

constitutional interests "far more precious than 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 15 - 

any property right." Santosky v. Kramer, 455 

U.S. 745, 758-59, 102 S.Ct. 1388, 1397, 71 

L.Ed.2d 599 (1982). Implicit in these rights is 

the right to decide where one's child is to reside. 

 The majority says that applying the parental 

presumption to which joint managing 

conservator has the right to determine a child's 

primary residence would require us to "legislate 

from the bench."4

 Majority op. at 472. But the 

family code supports the application of the 

presumption even when nonparents are 

designated as joint managing conservators 

without applying the presumption under 

circumstances like those in Brook. As the El 

Paso Court explained, "Section 153.372(b) [of 

the family code] provides that the procedural 

and substantive standards regarding a courtordered joint managing conservatorship 

provided by Subchapter C of the Family Code 

apply to a nonparent joint managing conservator. 

The very first section of Subchapter C contains 

the parental presumption." De La Pena, 999 

S.W.2d at 534; see Tex. Fam.Code Ann. § 

153.372(b) (Vernon 2008). 

 Other sections of the family code also 

support presuming that parents should 

[297 S.W.3d 483] 

maintain the right to designate a child's primary 

residence, which, as our supreme court has 

explained, is a crucial component of managing 

conservatorship. See Phillips v. Beaber, 995 

S.W.2d 655, 660-61 (Tex. 1999) (equating the 

right of primary possession with "custody" and 

adding that primary possession and establishing 

a child's residence are "core rights of managing 

conservatorship"); see also Troxel v. Granville,

530 U.S. 57, 65, 120 S.Ct. 2054, 2060, 147 

L.Ed.2d 49 (2000) (explaining that "the interest 

of parents in the care, custody, and control of 

their children ... is perhaps the oldest of the 

fundamental liberty interests"). For instance, the 

very first section of the conservatorship chapter 

of the family code relates that the state's public 

policy is to "assure that children will have 

frequent and continuing contact with parents." 

Tex. Fam.Code Ann. § 153.001(a)(1) (Vernon 

2008). Another section of the code states that 

"[i]t is the policy of this state to ... optimize the 

development of a close and continuing 

relationship between each parent and child." Id.

§ 153.251(b) (Vernon 2008). 

 I would hold that erasing the parental 

presumption in an original suit on custody when 

a court appoints multiple parties as managing 

conservators but gives primary possession to a 

nonparent would weaken these constitutional 

and statutory interests and would create an 

unintended result by placing the parent and 

nonparent on equal ground for the trial court's 

real custody determination. Thus, because I 

agree with the majority that the evidence in this 

case is insufficient to support the trial court's 

finding that the Grandparents rebutted the 

parental presumption, I would reverse the 

provisions of the trial court's order pertaining to 

the Grandparents' right to determine Ryder's 

primary residence and remand this case for 

further proceedings related to those provisions. I 

would also sustain Roger's sole issue and reverse 

the portion of the order limiting Roger's access 

to and possession of Ryder because as all parties 

have agreed, there is no evidence in the record 

supporting that limitation. 

Conclusion

 For these reasons, I respectfully dissent to 

the portion of the majority's opinion and 

judgment reversing the trial court's appointment 

of the Grandparents and Parents together as 

Ryder's joint managing conservators, but I 

concur with the majority's remand of the case for 

further proceedings. 

--------------- 

Notes: 

1. Subsection (a) of section 153.131 currently 

provides, 

[U]nless 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 
Critz v. Critz, 297 S.W.3d 464 (Tex. App., 2009) 

 - 16 - 

impair the child's physical health or 

emotional development, a parent 

shall be appointed sole managing 

conservator or both parents shall be 

appointed as joint managing 

conservators of the child. 

 Tex. Fam.Code Ann. § 153.131(a). At the time 

of the Brook decision, the former section of the 

family code relating to the presumption stated, 

A parent shall be appointed sole 

managing conservator or both 

parents shall be appointed as joint 

managing conservators of the child 

unless: 

1) 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. 

 Act of May 28, 1989, 71st Leg., R.S., ch. 370, § 

1, sec. 14.01(b)(1), 1989 Tex. Gen. Laws 1461, 1461, 

repealed by Act of April 6, 1995, 74th Leg., R.S., ch. 

20, § 2, 1995 Tex. Gen. Laws 282, 282; see Brook,

881 S.W.2d at 298. In essence, the legislature 

amended the family code to switch the order of the 

words existing in both provisions; it moved the words 

"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" 

from behind to in front of the words "[a] parent shall 

be appointed sole managing conservator or both 

parents shall be appointed as joint managing 

conservators of the child." 

2. The majority states, "There is no language in 

section 153.131 that indicates that the presumption is 

inapplicable to the appointment of non-parents as 

joint managing conservators when the trial court also 

appoints one or both parents." Majority op. at 471. 

But there was likewise no such language in the 

version of the statute analyzed in Brook. Brook, 881 

S.W.2d at 298-99. The majority also argues that the 

Brook and Connors opinions regarded "a former 

statute that did not contain a parental presumption 

requiring that both parents be appointed joint 

managing conservators unless rebutted." Majority op. 

at 472. But again, that change to the former statute is 

irrelevant to this case because the trial court did 

appoint both Parents as joint managing conservators. 

3. This language signals the El Paso Court's opinion 

that where a court does not find significant 

impairment under the parental presumption, 

appointment of parents alongside nonparents as joint 

managing conservators is still proper because in such 

a situation, the parents have not been excluded from 

managing conservatorship. Id.; see Brook, 881 

S.W.2d at 299-300. 

4. The majority uses the "legislate from the bench" 

pejorative phrase in an attempt to show why it would 

not apply the parental presumption to the right to 

determine Ryder's primary residence, but it does not 

explain why that same phrase would not apply to its 

own expansive interpretation of section 153.131 

when that section applies to the appointment of both 

parents as a child's managing conservators. 

---------------
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 1 -

329 S.W.3d 186

David GRAY, Appellant,

v.

Ann Wood SHOOK, Appellee.

No. 13-09-00255-CV.

Court of Appeals of Texas,

Corpus Christi-Edinburg.

Nov. 30, 2010.

Rehearing Overruled Jan. 13, 2011.

[329 S.W.3d 187]

 William A. Dudley, Corpus Christi, for 

Appellant.

 Jack W. Marr, Marr, Meier & Bradicich, 

Victoria, for Appellee.

 Before Justices YAÑEZ, BENAVIDES, 

and VELA.

OPINION

 Opinion by Justice BENAVIDES.

 Appellant, David Gray, appeals the trial 

court's appointment of appellee, Ann Wood 

Shook, as sole managing conservator of his 

daughter, G.W. By one issue, Gray contends that 

the trial court abused its discretion because (1) 

Shook did not offer sufficient evidence of harm 

to overcome the parental presumption; (2) if the 

parental presumption was overcome, Shook did 

not establish harm by a preponderance of the 

evidence; and (3) Shook offered no evidence of 

any specific acts or omissions by Gray that 

would significantly impair the physical health or 

emotional development of G.W. We reverse and 

remand.

I. Background

 David Gray and Lucy Wood are the 

biological parents of G.W., who was born on 

July 9, 2003. On January 30, 2007, Gray filed a 

suit affecting the parent-child relationship 

stating, "The best interest of [G.W.] will be 

served by the appointment of [Lucy] as joint 

managing conservator [of G.W.] with the 

exclusive right to designate the primary 

residence of the child...." Gray also requested 

that "appropriate orders be made for access to 

the child and the allocation of the rights and 

duties of the conservators." On January 23, 

2008, Ann Wood Shook, G.W.'s maternal 

grandmother, filed a petition in intervention 

stating that she "would show that it is in the best 

interest of [G.W.] that Intervenor and 

Respondent [Lucy] be appointed joint managing 

conservators of [G.W.]." Shook further 

requested that she "be granted the exclusive 

right to establish the primary legal residence of 

the child" and that Gray be appointed possessory 

conservator of G.W. Gray then amended his 

petition requesting that he be appointed joint 

managing conservator with the exclusive right to 

designate the primary residence of G.W.

[329 S.W.3d 188]

On June 30, 2008, a bench trial was held at 

which Shook, Gray, Lucy, and Cheryl Green 

testified.

 Shook stated that G.W. has lived in her 

home in Victoria, Texas since she was born and 

that when Lucy moved out of Shook's home 

approximately two years earlier, G.W. continued 

living with Shook and her husband. Shook 

testified that she and her husband have been 

"raising" G.W. for "about a year-and-a-half." 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 2 -

According to Shook, she has filled the role of 

co-parent with Lucy, and since G.W. was born, 

Shook and her husband have "taken part in all 

aspects of raising [G.W.] together" because 

Lucy "didn't know how much part [Gray] would 

be in her life." Shook testified that G.W. spends 

more time with her than with Lucy and that 

presently, she and her husband are primarily 

responsible for raising G.W. Shook 

acknowledged, however, that Lucy was still 

providing care for G.W. and asked that Lucy be 

appointed joint managing conservator.

 Shook stated that it was in G.W.'s best 

interest for Gray to be appointed possessory 

conservator and that it would significantly 

impair G.W.'s physical health if the trial court 

appointed Gray managing conservator. Shook 

testified that she wanted to be appointed 

managing conservator with the right to 

determine the residence of the child. According 

to Shook, if she were not appointed managing 

conservator, it would significantly impair G.W.'s 

physical health because

[i]f [G.W.] were to be taken 

away from her residence, the 

only home she's ever known, 

and moved across the country 

where she has no family, no 

support system, I feel—and as 

an educator and with a degree in 

counseling, I feel that it would 

be—and her grandmother, I feel 

that it would be harmful to her 

because she has a lot of 

insecurities now.

 On cross-examination, Shook stated that 

Gray "arrived" after G.W.'s birth and that he did 

not participate during the pregnancy and did not 

pay for the medical expenses related to G.W's 

birth. According to Shook, from the time of 

G.W.'s birth until the time of trial, Gray had not 

had contact with G.W. on a monthly basis. 

Shook stated that Gray has had approximately 

three to four visits with G.W. per year in the last 

five years. Shook testified that Gray lived in 

Houston when G.W. was born; he then moved to 

New Jersey, then to Denver, Colorado, and then 

to Seattle, Washington. Shook said that when 

G.W. was born, Lucy moved into Shook's home 

and that for a short time, Gray took an "active 

role" and visited G.W. at least every other 

weekend; however, the visits soon became 

"sporadic."

 Shook testified that G.W. has started preschool and that G.W. attends gymnastics, dance 

class, and play groups with her friends. 

According to Shook, Lucy usually spends the 

night at Shook's house and does not take G.W. 

away for overnight visits because they do not 

want to "jerk [G.W.] back and forth." Shook 

stated that she does not intend to move away 

from Victoria.

 Shook testified that Gray did not 

acknowledge G.W. as his child while Lucy was 

pregnant, but after G.W. was born, a paternity 

test was performed. Shook stated that when 

Gray was transferred to New Jersey, he did not 

visit G.W. "real often" and that during that time, 

G.W. bonded with Shook and Lucy; Shook 

explained that bonding means "creating a safe 

place—a place in the relationship where a child 

feels safe, unquestionably taken care of." Shook 

did not believe that G.W. bonded with Gray 

during the first year of her life. She stated that 

after approximately two years in New Jersey, 

Gray moved to Denver; during that time, he 

visited

[329 S.W.3d 189]

G.W. two to three times per year. According to 

Shook, while Gray has lived in Seattle, he has 

visited G.W. three to four times per year and that 

in the last year, Gray had seen G.W. "[a] little 

more regularly." When asked, "And if you were 

to define her world of comfort, who are the 

people that are involved in her world of comfort 

right now," Shook replied, "My husband, 

myself[,] ... her mother[,] and her [maternal] 

aunt and her [maternal] uncle." Shook claimed 

that Gray had not contacted G.W. by telephone 

on a regular basis and that to her knowledge, 

Gray had only called G.W. once since she was 

four years old. When asked what the impact on 

G.W. would be if she were removed from 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 3 -

Shook's home and moved to Seattle, Shook 

stated:

It would be devastating at this 

point in her life. Her world as a 

five-year-old revolves around 

her safety and her security. And 

she already worries and 

obsesses over things because of 

the insecurity of her dad in and 

out of her life. The only thing 

constant in her life since birth 

has been my husband and I and 

her mother has been there as a 

presence.

 Shook stated that her "position is [Gray] 

should see [G.W.] more often, that he needs to 

build a relationship and be a full part of her life, 

not just visit occasionally" and that it would be 

"devastating to [G.W.]" if Gray were allowed to 

transport G.W. to Seattle because she had "never 

been more than a night or two without [Lucy], 

[Shook,] or [Shook's] husband." According to 

Shook, no relationship exists between G.W. and 

Gray; therefore, Gray's visitation should be 

increased gradually "until [G.W.] feels safe and 

comfortable with him at [the Shooks'] home in 

Victoria or other places."

 On re-direct examination, Shook stated that 

although Gray has been interested in visiting 

with G.W., "[t]he desire for seeing her more 

than he has been is sudden as of the last 

hearing." Shook believed that if G.W. were 

transported to Seattle, she could suffer physical 

harm, such as "stomach [aches], throwing up, 

grinding her teeth." Shook testified that the trial 

court had ordered Gray to visit G.W. three times 

before the end of the year 2007 because Gray 

had only visited G.W. once that year and that 

Gray had complied with the order.

 Shook denied that she and Lucy "resisted" 

allowing Gray any visitation time with G.W. and 

that they had "always encouraged [Gray] to be 

part of her life." When asked to substantiate her 

opinion that G.W. would suffer from physical 

and emotional harm if she were removed from 

Shook's home, Shook stated that:

[c]ounselors other than myself, 

child counselors that [G.W.] has 

visited with that [sic] has told 

me this and is willing to testify 

here today. It's not just my 

opinion, it's ... Any adolescent 

child psychology book that you 

read, when you take a child's 

world away from them, the only 

world that they know, and put 

them in another world has 

harmful effects.... [And G.W.] 

would not have family support 

[if she moved to Seattle].... 

[Gray] has not one relative that 

lives in Seattle. [G.W.] in 

Victoria has a wide family 

support system and that is the 

most important thing in her life.

The trial court asked Shook several questions 

regarding Lucy's parental involvement. In her 

answers, Shook acknowledged that Lucy does 

not visit G.W. every day, does not pay any child 

support to Shook, and that Shook still provides 

financial support to Lucy. When asked why 

Shook had possession of G.W., Shook replied:

[329 S.W.3d 190]

Lucy suffers from depression, 

which she is being treated for 

and sees a doctor and is trying 

to get help. She maintains a job 

fulltime and she struggles to 

provide a place where [G.W.] 

can come. She struggles to 

provide a car. She's having a 

hard time. And she wants to be 

a fulltime mother but she 

feels—and we've always 

discussed [G.W.] openly 

between ourselves—and we feel 

together that it's better not to 

drag [G.W.] from one place to 

the other. Lucy visits her at our 

home and she may financially 

have to move back into our 

home with [G.W.].
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 4 -

Shook stated that she believes that G.W. is safer 

living with her rather than living with Lucy and 

that she and her husband have been the "only 

consistent thing" in G.W.'s life.

 Green, a licensed clinical social worker,1

testified that she had been counseling G.W. for 

two months prior to the trial due to G.W.'s 

separation anxiety. Green stated that:

[G.W.] has had several 

instabilities in her life to date. 

She's been back and forth with 

her biological mother and is 

currently residing primarily with 

her biological grandmother and 

step grandfather. There's been 

inconsistencies due to the 

mother's difficulties, which have 

led to some anxieties in this 

child's life. She has some 

separation anxiety, she doesn't 

like to be alone, she's very 

controlling, she's very needy, 

needs lots of attention. She 

won't sleep alone in a room.

 According to Green, stability and 

consistency are very important to a child 

experiencing anxiety. Green explained that a 

child G.W.'s age is not able to bond with a 

person who visits every three to four months and 

that for bonding to occur, more frequent contact 

is necessary. When asked whether it is 

detrimental to a relationship between a child and 

a parent for there to be infrequent or large gaps 

between visits, Green replied that it would not 

affect the relationship in a positive manner and 

"as far as the two people bonding together, it's 

going to keep that from happening." She opined 

that for a child to bond to someone, that person 

must be consistently in the child's life. Green 

stated that to achieve that level of bonding, the 

person should have regular communication with 

the child by mail, telephone, or "face-to-face." 

Green testified that visits once every two months 

are inadequate for bonding to occur and that she 

did not "feel" that G.W. had an adequate bond 

with Gray, meaning that G.W. "would sense"

Gray as a stranger. Green opined that bonding 

could occur if Gray maintained regular 

communication. Green stated:

You know, from what I 

understand, the only time 

[G.W.] interacts with [Gray] is 

when he's here. There's no 

phone calls, there's no letters, 

there's no little pictures sent in 

the mail, none of those things 

that would be appropriate 

communication with a fouryear-old, which is frequent 

when parents are geographically 

distanced, they make the effort 

to have regular weekly phone 

contact or some kind of 

interaction with a child.

 According to Green, G.W. considers Shook 

her "primary parent" and she feels "safe" in 

Shook's home environment. Green testified that 

because of G.W.'s separation anxiety, a situation 

that causes more stress, such as allowing her to 

leave her home, could cause long-term problems

[329 S.W.3d 191]

such as "[p]oor performance in school, poor 

socialization, difficulty in relationships" and 

more serious problems such as depression and 

the risk of drug use. Green explained that 

extended periods of visitation with Gray in 

Seattle could cause G.W. to "regress, she could 

become increasingly more anxious and more 

clingy." Green stated, "I understand that when 

she's gone on visits in the past with the father 

she's been throwing up out of anxiety, possibly, 

since it's been a recurring event."

 Green testified that if G.W. was removed 

from Shook's home, she would "freak out," cling 

to Shook, cry, scream, and throw up. According 

to Green, if the visitation schedule "is too 

accelerated," there could be problems "such as 

the continued vomiting during visits ... bedwetting ... anxiety.... Maybe even she would 

become more controlling, more bossy, which 

could cause problems with her peer interaction."
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 5 -

 Gray testified that he works for Skansa, 

USA Building as an engineer and his salary is 

$85,000 a year. According to Gray, in the past, 

there has been "some resistance" to his visiting 

with G.W. and that there was difficulty in 

exercising his last visitation with G.W. Gray 

stated:

The day prior to me making the 

trip down here I called Lucy, 

her mother—G.W.'s mother, 

that is—and inquired where and 

when I could pick her up, 

understanding that it was nine, 

but just to confirm things. And 

[Lucy] informed me that her 

daughter was out of town and 

didn't know exactly when she'd 

return or where she was at that 

moment but she would call and 

inquire into that. And I asked 

her to finally return my call and 

let me know what time the next 

morning I could pick her up and 

where that would be.

A few hours later, seven o'clock 

my time, nine o'clock here, I 

was getting ready to board an 

overnight plane flight down 

here and I called back—I've also 

called [Shook's] house at that 

time to see if I could find 

someone there that could 

answer that question. Phone 

calls were not answered, 

messages were left and I never 

heard back from them.

And the next morning on my 

way down from Houston in a 

car, after flying in there, I made 

another round of calls with no 

answers or return messages. 

And then later in that morning I 

got a call from [Shook], 

informing me that they were in 

Austin or somewhere in that 

area and that they were thinking 

about leaving relatively soon, 

that they would be down in a 

few hours.

According to Gray, the visitation that was 

scheduled to begin at 9:00 a.m. actually began at 

1:30 p.m., and he did not make that time up by 

returning G.W. later. Gray stated that his 

visitation with G.W. went "exceptionally well," 

they had a lot of fun together and that he and 

G.W. have a strong healthy bond and 

relationship.

 Gray testified that he lives with his 

girlfriend, Allison, in a house he recently 

purchased and that there is a bedroom for G.W. 

Gray started a college fund for G.W. and 

provides health insurance for G.W., which he 

started doing "immediately following the first 

month of [G.W.'s] life." Gray claimed that at the 

time of G.W.'s birth, it was "very unclear who 

the father was" and that was the reason Lucy 

carried her own medical insurance during the 

pregnancy and birth.

 Gray stated that he was requesting custody 

of G.W. because it had become increasingly 

difficult to be as involved in her life as he would 

like to be. Gray testified that he had not been 

aware that G.W. lived with Shook until she filed 

her petition for intervention; therefore, when he 

became aware of the situation, Gray decided that 

he should seek custody of G.W. Gray believed

[329 S.W.3d 192]

that G.W.'s living conditions were temporary 

and "evolved out of convenience almost in that 

Lucy was not taking care of [G.W.] as much as 

needed...." He also believed that he could 

provide for G.W. and nurture and love her as 

much as Shook has. Gray stated:

Lucy's interest in [G.W.'s] 

upbringing has not been as we 

would hope as a parent, and I 

think that's even gone slightly 

less over the years and just kind 

of withered away. I think as a 

young mother she's been, you 

know, reluctant to give up parts 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 6 -

of her life that, you know, are 

enjoyed by single people and it's 

put [G.W.] in an uncomfortable 

situation there.

 On cross-examination, Gray stated that 

Lucy had not been willing to provide financial 

support and time to G.W. but that he has done 

so. Gray stated that he lived in New Jersey for 

approximately one year and that he would be 

"hard pressed to recall the exact number" of 

times he visited G.W., but thought he saw her 

every two months on average. Gray claimed that 

at that time, it was difficult to contact G.W., and 

Lucy made visitation difficult for him by only 

allowing short, supervised visits with G.W. Gray 

stated that when he lived in Colorado, he visited 

G.W. on average every two months. Gray 

testified that he was unable to visit G.W. on a 

monthly basis because his employer only 

allowed ten days of vacation per year and 

therefore, "[t]here's not that many days in the 

year vacationwise to do that." On cross 

examination by Shook's attorney, Gray testified 

that in order to visit G.W. in Victoria, he is 

required to take at least "three days of vacation 

wrapped around a weekend." Therefore, Gray 

stated, "Ten days of vacation means you do that 

three times a year, you've used your vacation for 

that year." Gray also explained that it was 

expensive to make more visits. When asked if he 

had "telephone visits" with G.W., Gray replied, 

"I have in the past had many phone 

conversations with her. In recent months phone 

calls are unanswered, unreturned. Phone records 

could easily indicate the hundreds of phone calls 

tabbed and made." No phone records were 

admitted into the record.

 Gray admitted that he decided not to look 

for employment in Texas although he believed 

that he could have found a job there. When 

asked why he chose not to live in Texas if his 

primary consideration was G.W., Gray 

responded, "I don't believe location is exclusive 

of visiting my daughter. Those two things don't 

have to contradict each other in any way." Gray 

explained that moving to Seattle would allow 

him more visitation time with G.W. because he 

made more money and he would never be asked 

to relocate from Seattle. According to Gray, if 

G.W. moved to Seattle to live with him, due to 

the flexibility of his work schedule, he could on 

certain occasions work from home and would be 

able to transport G.W. to and from her school.

 Gray stated that the reason he could not 

visit with G.W. more than once every two 

months is due to her inability to leave Victoria. 

Gray thought that it would have been better if 

G.W. had been allowed to travel by plane to visit 

him in addition to his visits to Victoria. 

According to Gray, for "close to three years," he 

attempted to negotiate with Lucy a plan for 

G.W. to visit him. Gray explained, "I was 

hoping that we could eventually work something 

out that was mutually agreeable. Eventually 

communications have broken down to the point 

that phone calls are unreturned, unanswered, and 

they were unbending in their requests and 

demands." Gray acknowledged that "[v]isitation 

was highly restrained, but as a mature, 

responsible parent [he] always hope[d] and [his] 

goal

[329 S.W.3d 193]

was that [he and Lucy] could work out some 

mutually agreeable terms and conditions of 

that."

 According to Gray, his bond with G.W. is 

"very strong," but because of the recent 

"extraordinarily strained" relations, contact with 

G.W. has not been permitted. Gray testified that 

when he visited with G.W., she did not 

demonstrate any behaviors indicating that she 

was suffering from separation anxiety. Gray 

stated, "Regarding her getting sick, she's gotten 

sick one time in my presence. During my last 

visit I picked her up from dance and she was ill 

on the way home in the car and recovered within 

the hour and was playing again." Gray testified 

that he picked G.W. up at Lucy's residence "a 

number of times" and also from Shook's 

residence for visitation. Gray stated that it had 

been "less than a year" since he picked G.W. up 

at Lucy's residence.
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 7 -

 Gray claimed that he was unaware that 

G.W. resided with Shook and that his "family [in 

Victoria] didn't know." When asked, "How hard 

do you think it would have been had you looked 

to figure out where the child was living," Gray 

responded, "How hard would it have been had I 

looked? I looked as far as I could; that is, she 

clearly maintained two residences. That is, all of 

her toys were both at [Lucy's] house and she had 

a lot of toys at [Shook's] house. As recently as 

yesterday, for example, [G.W.] stated I live with 

[Shook]. Oh, I'm not supposed to say that."

 Shook's trial counsel asked Gray if he 

agreed with Green's testimony that it was not in 

G.W.'s best "interest to be uprooted and moved 

to Seattle." Gray replied, "I don't sir, in that I 

believe that she's in a damaging and destructive 

environment currently and that currently her 

care is loving and nurturing but a little bit over 

controlling and possessive in a way that may 

lead to some of these issues." During re-cross 

examination, Shook's counsel asked, "Would 

that be in [G.W.'s] best interest to remove her 

that distance from the people that have taken 

care of her during the first five years of her life," 

Gray replied:

Taken care of her, I don't really 

accept how you use the phrase, 

but I believe it would be in her 

best interest. They've cared for 

her and I greatly appreciate 

what they have done to provide 

the temporary solution they 

have. That as a more permanent 

solution I see her living with 

one of her parents, and that 

would be myself if the mother is 

not taking care of her, which has 

been the case. So, I believe that 

it would be in my daughter's 

best interest to reside with me in 

Seattle.

When asked if Gray believed he had "stepped up 

to the plate and assumed the responsibility a 

parent should," Gray responded,

Yes, I have stepped up to the plate in that I have 

consistently been in her life. As soon as I had 

any indication she wasn't living with her 

biological parent, I pressed for this, right? That's 

why we're here today, is because I have been 

trying to step up to the plate and seek more and 

more time with G.W. since the day she was 

born, while they have pushed very hard back 

against that.

 Gray claimed that immediately after G.W. 

was born, he initiated some action, which he did 

not explain, in order to assert his parental rights. 

Shook's attorney stated, "You haven't done 

anything to establish rights to possession and 

access to medical records and to school records, 

you haven't done any of those things until you 

filed this lawsuit." Gray replied, "That's not true 

in that, as stated, right after she was born we 

sought all those things which you just discussed 

and...." When Shook's

[329 S.W.3d 194]

counsel asked Gray to produce the court orders 

establishing those rights, Gray said, "We could 

pull them up. There were court orders, there 

were attorneys involved the month after she was 

born involving just what you're discussing, sir." 

Lucy's trial counsel then asked the trial court to 

take judicial notice of the fact that the pending 

action was the only suit affecting the parentchild relationship that had been initiated and that 

it was not filed one month after G.W. was born. 

Gray then stated, "That's correct, it never 

reached—it never reached the court at that point, 

we were negotiating between the attorneys and it 

was, like I said, a standard parental—I forget the 

right term for it right now—but 

acknowledgment of parent, that sort of thing that 

we went through at that time."

 Lucy testified that G.W. lives with Shook 

and has lived at the Shook residence for 

approximately one year. Lucy stated that she and 

Shook decided to share the parental 

responsibilities because Lucy "needed help 

raising" G.W. According to Lucy, she was 

diagnosed with depression when she was in 

eighth grade, and since then, she has been taking 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 8 -

medication for that disease. After G.W. was 

born, Lucy moved in with Shook and lived there 

two or three years. Lucy stated that she believes 

that it is in G.W.'s best interest to continue living 

with Shook and that she is available to 

participate in raising G.W.

 Lucy denied that she ever prevented Gray 

from visiting with G.W. and claimed that she 

"encouraged" him to visit regularly and more 

often. Lucy stated that it would be better for 

G.W. if Gray had more contact with her. Lucy 

also denied that she ignored Gray's telephone 

calls. Lucy explained that the "supervised" visits 

occurred when she was breast feeding G.W., 

which she did for "a little over a year." 

Therefore, it was "necessary" for her to be 

present during those visitations. Lucy testified 

that she did not want to prevent Gray from 

having visits with G.W. and that she believes it 

is "very important" for G.W. to visit Gray.

 Lucy stated that G.W. was "around" two 

when Gray moved to New Jersey and that she 

was not aware of any requests from Gray for 

G.W. to be flown to New Jersey for a visit. Lucy 

testified that she has concerns about allowing 

G.W. to fly to Seattle because she suffers from 

separation anxiety and she would be scared due 

to her young age. Lucy agreed that she would 

work with G.W. to help her overcome her 

anxiety. However, Lucy did not believe that it 

would be in G.W.'s best interest for Gray to be 

appointed sole managing conservator and that it 

was in G.W.'s best interest to continue living 

with Shook.

 On cross-examination, Lucy said that it was 

not true that Gray had placed hundreds of 

telephone calls to G.W. Rather, she testified that 

before the suit was filed, Gray called 

approximately twice a month to talk to G.W. 

Lucy stated that Gray visited G.W. two or three 

times per year, usually during a holiday like 

Christmas or Thanksgiving. When asked why 

Gray did not visit more often, Lucy replied, "I

guess numerous reasons, being the expense, the 

travel expense. Other plans. For example, he had 

a four-or five-day trip down to Texas over New 

Year's Eve once and was only in Victoria two 

days out of that time, the other three days he 

spent in Austin or Dallas with friends." Lucy 

believed that Gray's infrequent visits have 

"damaged" his relationship with G.W.

 The trial court appointed Shook managing 

conservator with the right to determine G.W.'s 

residence and appointed Gray and Lucy 

possessory conservators. The trial court ordered 

that neither possessory conservator live in the 

same residence with

[329 S.W.3d 195]

G.W. and Shook. The trial court entered findings 

of fact and conclusions of law, which stated in 

pertinent part:

4. The Court finds that at the 

time of filing of the Petition in 

Intervention, Intervenor [Shook] 

had actual care, control, and 

possession of the child made the 

subject of this suit for more than 

six months ending no more than 

90 days preceding the date of 

filing of the Petition in 

Intervention.

5. The Court finds that it is in 

the best interest of the child 

made the subject of this suit that 

[Shook] be appointed Sole 

Managing Conservator of the 

child made the subject of this 

suit.

6. The Court finds that it is in 

the best interest of the child 

made the subject of this suit that 

[Gray] be appointed possessory 

conservator of the child made 

the subject of this suit.

7. The Court finds that 

appointment of [Gray] as joint 

managing conservator of the 

child made the subject of this 

suit would not be in the best 

interest of the child made the 

subject of this suit because the 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 9 -

appointment would significantly 

impair the child's physical 

health or emotional 

development.

 Gray requested additional findings of fact 

"on how appointment of a parent or the parents 

as sole or joint managing conservator in the 

instant case would significantly impair the 

child's physical health or emotional 

development, including, what facts, if any, in the 

record, support said findings." The trial court did 

not make any additional findings of fact, and this 

appeal ensued.

II. Standard of Review and Applicable Law

 An appellate court reviews the 

determination of conservatorship under an abuse 

of discretion standard. Whitworth v. Whitworth,

222 S.W.3d 616, 622-23 (Tex.App.-Houston 

[1st Dist.] 2007, no pet.) (op. on reh'g) (citing 

Gillespie v. Gillespie, 644 S.W.2d 449, 451 

(Tex.1982)). "Under an abuse-of-discretion 

standard, legal and factual insufficiency are not 

independent grounds of error, but rather are

relevant factors in assessing whether the trial 

court abused its discretion." Baltzer v. Medina,

240 S.W.3d 469, 475 (Tex.App.-Houston [14th 

Dist.] 2007, no pet.); see also Morris v. Morris,

No. 13-05-00297-CV, 2007 WL 2128882, at *2-

3, 2007 Tex.App. LEXIS 5878, at *6-7 

(Tex.App.-Corpus Christi July 26, 2007, no pet.) 

(mem. op.). The trial court abuses its discretion 

if its decision is arbitrary or unreasonable. 

Whitworth, 222 S.W.3d at 623. A trial court may 

also abuse its discretion if it fails to analyze or 

apply the law correctly. In the Interest of 

C.A.M.M., 243 S.W.3d 211, 215 (Tex.App.-

Houston [14th Dist.] 2007, pet. denied) (citing 

Walker v. Packer, 827 S.W.2d 833, 840 

(Tex.1992) (orig. proceeding)). The trial court 

does not abuse its discretion if there is some 

evidence of a substantive and probative 

character to support the decision. Whitworth,

222 S.W.3d at 623.

 "The presumption that the best interest of a 

child is served by awarding custody to a natural 

parent is deeply embedded in Texas law." 

Lewelling v. Lewelling, 796 S.W.2d 164, 166 

(Tex.1990). Therefore, section 153.131 of the 

family code requires that the parent be appointed 

sole managing conservator or both parents be 

appointed joint managing conservators unless 

the nonparent proves by a preponderance of the 

credible evidence that "appointment of the 

parent or parents would

[329 S.W.3d 196]

not be in the best interest of the child because 

the appointment would significantly impair the 

child's physical health or emotional 

development...." Tex. Fam.Code Ann. § 153.131 

(Vernon 2008); In re De La Pena, 999 S.W.2d 

521, 527 (Tex.App.-El Paso 1999, no pet.). The 

family code's presumption in favor of parental 

custody places a "heavy burden on a nonparent 

seeking custody." May v. May, 829 S.W.2d 373, 

376 (Tex.App.-Corpus Christi 1992, writ 

denied). To rebut the presumption, "the evidence 

must support a logical inference that some 

specific, identifiable behavior or conduct of the 

parent will probably cause significant physical 

or emotional harm to the child." Id. at 377. Any 

"close call" must be resolved in favor of the 

parent over the nonparent. Chavez v. Chavez,

148 S.W.3d 449, 459 (Tex.App.-El Paso 2004, 

no pet.).

III. Analysis

 Shook relies heavily on Green's testimony 

that G.W. had suffered from separation anxiety 

and that because she had not bonded with Gray, 

it would not be in her best interest to move to 

Seattle. If the evidentiary burden on a nonparent 

was any evidence of any harm to the child, we 

would be required to find that the trial court 

acted within its discretion in this case. However, 

as we discuss below, the law requires the 

evidence to rise above mere speculation of harm, 

and further requires the harm to be attributable 

to a specific, identifiable act or omission of the 

parent. The trial court abused its discretion, and 

therefore, we sustain Gray's sole issue, because: 

(1) Shook failed to offer any evidence of a 

specific, identifiable act or omission by Gray 

that would be likely to harm G.W; and (2) the 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 10 -

evidence of the general harm caused by 

"uprooting" in this case is only speculative and 

therefore could not rebut the parental 

presumption.

 A. Specific, Identifiable Act or Omission

 Gray contends that the trial court abused its 

discretion because the record does not legally—

or even factually—demonstrate specific acts or 

omissions by Gray that would significantly 

impair the physical health or emotional 

development of G.W. We agree.

 In order for a nonparent to overcome the 

presumption that it is in the child's best interest 

to be in the custody of a parent, there must be 

evidence of "specific, identifiable" conduct by 

the parent that is likely to cause harm to the 

child's physical health or emotional 

development.2In

[329 S.W.3d 197]

May v. May, this Court wrote that the family 

code

requires evidence of specific 

actions or omissions of the 

parent that demonstrate an 

award of custody to the parent 

would result in significant 

physical or emotional harm to 

the child.... In other words, the 

nonparent must usually present 

evidence affirmatively showing 

conduct of the parent which will 

have a detrimental effect upon 

the child, such as physical 

abuse, severe neglect, 

abandonment, drug or alcoholic 

abuse or very immoral behavior 

on the part of the parent.

829 S.W.2d 373, 376-77 

(Tex.App.-Corpus Christi 1992, 

writ denied) (citing Lewelling v. 

Lewelling, 796 S.W.2d 164, 167 

(Tex.1990)). In May, we 

ultimately held that the father 

could not retain custody of the 

children, but that holding was 

based on the fact that the father 

had been a drug user in the 

recent past, and the holding was 

only made after a careful and 

deliberate finding of a specific, 

identifiable act of the parent that 

would significantly impair the 

child's physical health or 

emotional development. See id.

at 377-79.

 In Lewelling, the Texas Supreme Court 

emphasized the portion of the statute under 

which a nonparent may obtain custody if "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." Lewelling, 796 

S.W.2d at 166 (emphasis in original). After 

emphasizing this specific language, the court 

instructed that:

The [statutory] language 

requiring a showing that 

appointment of the parent would 

significantly impair the child's

[329 S.W.3d 198]

physical or emotional 

development creates a strong 

presumption in favor of parental 

custody and imposes a heavy 

burden on a nonparent. It is no 

longer adequate to offer 

evidence that the nonparent 

would be a better custodian of 

the child.... [T]he nonparent 

must affirmatively prove by a 

preponderance of the evidence 

that appointment of the parent 

as managing conservator would 

significantly impair the child, 

either physically or emotionally. 

This statute thus requires the 

nonparent to offer evidence of 

specific actions or omissions of 

the parent that demonstrate an 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 11 -

award of custody to the parent 

would result in physical or 

emotional harm to the child.

Id. (internal citations omitted) (emphasis added). 

Absent evidence of some specific act or 

omission by Gray that would cause G.W. harm, 

the parental presumption can not be overcome. 

We find no such evidence in the record.

 The evidence in this case shows that the 

only possible harm to the child is the 

"uprooting" itself—not any specific, identifiable 

act or omission, conduct or behavior of Gray. 

Therefore, it was an abuse of discretion for the 

trial court to name Shook, a nonparent, sole 

managing conservator of G.W.

 B. Speculative Harm

 Furthermore, even if we look at general 

harm, not attributable to Gray's specific acts or 

omissions, Shook failed to present any evidence 

that could overcome the parental presumption 

because the evidence presented raises only 

speculative harm.

 In May, this Court wrote that "[the] harm to 

the child ... may not be based on evidence which 

raises a mere surmise or speculation of possible 

harm." May, 829 S.W.2d at 377 (citing Kindred 

v. Con/Chem., Inc., 650 S.W.2d 61, 63 

(Tex.1983); Briones v. Levine's Dept. Store, 

Inc., 446 S.W.2d 7, 10 (Tex.1969)).

 Shook essentially relies on one theory of 

harm in order to justify the trial court's judgment 

that Shook had overcome the parental 

presumption. That theory can be summarized as 

follows: (1) Green testified that G.W. suffers 

from "some" separation anxiety; (2) this anxiety 

has caused "recurring vomiting" in the past, 

could effect her peer relationships in the future, 

and may lead to other long-term problems; and 

(3) these harms can be prevented if G.W. 

remains with Shook because G.W. feels safe 

with Shook and G.W. has not bonded with Gray.

 Evidence of sporadic, past vomiting and the 

possibility of negative effects on peer 

relationships is insufficient evidence to rise 

above a mere speculation of harm. The record 

indicates that vomiting had occurred on only one 

or two occasions out of the dozens of times 

G.W. has met with her father, and on closer 

review of the record, Green testified that the 

vomiting was "possibly" caused by anxiety. 

Moreover, there is no evidence that all of the 

other alleged dangers to G.W.'s emotional 

development were more than a mere possibility. 

For example, on direct examination, when 

asked, "Can you give the Court some example[s] 

of what some of those additional problems might 

be [?]," Green responded, " sometimes

depression develops, sometimes they're at risk 

for drug use," and further responded, " 

oftentimes we see long-term problems." 

(Emphasis added). These are the exact types of 

speculative harms that we prohibited from 

consideration in May. See May, 829 S.W.2d at 

377. Without consideration of this speculative 

harm, there is no evidence whatsoever to rebut 

the parental presumption. Therefore, again, we 

hold that the trial court abused its discretion in 

appointing Shook,

[329 S.W.3d 199]

a nonparent, as G.W.'s sole managing 

conservator.

IV. Conclusion

 Because we hold that the trial court abused 

its discretion by appointing Shook to be G.W.'s 

sole managing conservator, we sustain Gray's 

sole issue. Having failed to meet her burden, 

Shook may not maintain any legal custodial 

rights over G.W. "In most circumstances, a 

judgment is reversed and rendered when a legal 

sufficiency challenge is sustained." Chavez, 148 

S.W.3d at 461. However, we are permitted to 

remand a case such as this "when the interest of 

justice so requires." Id. (citing Tex.R.App. P. 

43.3). In this case, the trial court held in Shook's 

favor, making it unnecessary for that court to 

determine G.W.'s best interest as it related to the 

custodial or visitation rights that should exist 

between Gray and Lucy only. Because of this, 

and because we have overturned the trial court's 

ruling designating Shook as sole managing 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 12 -

conservator, we find it to be in the interest of 

justice not to simply render judgment in Gray's 

favor. Further, more than a year has passed since 

the custodial hearing; circumstances may have 

changed during this time such that it would not 

be in G.W.'s best interest to appoint Gray as her 

sole managing conservator, and we have no 

ability to determine the present circumstances of 

any of the parties, nor do we have the luxury of 

sitting as a fact-finder. For the forgoing reasons, 

we remand this case to the trial court for 

custodial hearings to determine the rights as 

between Gray and Lucy only.

 Dissenting Opinion by Justice LINDA 

REYNA YAÑEZ.

 Dissenting Opinion by Justice YAÑEZ.

 I respectfully dissent to the majority's 

conclusion that the trial court abused its 

discretion in this case. A trial court does not 

abuse its discretion when there is some evidence 

of a substantive and probative character to 

support its decision.1In some cases, the parental 

presumption can be rebutted by other evidence 

establishing the statutorily required negative 

effect on the child even when there is no 

evidence establishing any particular 

blameworthy act of the parent.2"Because safety, 

security, and stability are critical to child 

development, the danger of uprooting a child 

may in some instances rise to a level that 

significantly impairs the child's emotional 

development." 3

 Here, Green testified that G.W. suffers 

from separation anxiety, a condition she defined 

as a fear of being separated from either the 

parent or person of significance. Green testified 

that G.W. considers Shook her "primary parent" 

and feels "safe" in Shook's home. The evidence 

showed that G.W. has lived with Shook since 

she was born and has never known another 

home.

 Green stated that stability and consistency 

are very important to a child who

[329 S.W.3d 200]

experiences anxiety. Green testified that 

consistency is also an important factor in 

bonding with a child and that when there are 

infrequent visits or large gaps between the visits, 

bonding will not occur. Green opined that a 

child is unable to bond with a person who only 

visits the child three or four times per year. The 

evidence showed, although contradicted by 

Gray, that he had only visited G.W. three or four 

times per year since he moved away from 

Texas.4 Furthermore, according to Green, G.W. 

viewed Gray as a stranger, and Gray has not 

bonded with G.W. because he has not spent 

enough time with her. Green stated that in order 

to bond with G.W., more frequent contact was 

necessary.

 According to Green, after visiting Gray, 

G.W. has vomited due to her anxiety. Green 

testified that G.W. would "freak out" if she was 

removed from Shook's home and that she would 

vomit, scream, and cry. Due to G.W.'s 

separation anxiety, Green stated that the added 

stress of removing her from Shook's home could 

cause numerous problems for G.W.

 Shook testified that G.W. has lived in her 

home since she was born, that she has been 

"raising" G.W. for approximately a year-and-ahalf, and that G.W. spends more time with 

Shook than with Lucy. According to Shook, it 

would significantly impair G.W.'s physical 

health if Gray was appointed managing 

conservator because G.W. would be removed 

from the "only home she's ever known." Shook 

testified that G.W. had never been away from 

Shook, Shook's husband, or Lucy for more than 

"a night or two." Shook stated that G.W. has 

bonded with her and that it would be 

"devastating" to G.W. if she were removed from 

Shook's home. Shook testified that G.W. would 

suffer harmful effects if removed from her home 

because she would not have any family support 

in Seattle. Shook stated that appointing Gray 

managing conservator and removing G.W. from 

Shook's home would have harmful effects.

 In this case, there was evidence presented

that the danger of uprooting G.W. from Shook's 

home would significantly impair G.W.'s 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 13 -

physical health and emotional development.5

Therefore, the trial court could have reasonably 

concluded from the evidence that appointing 

Gray managing conservator would have the 

statutorily required negative effect on G.W. 6

Because there is some evidence of a substantive 

and probative character to support the trial 

court's decision, I believe that the trial court did 

not abuse its discretion by concluding that 

Gray's appointment as managing conservator 

would significantly impair G.W.'s physical 

health or emotional

[329 S.W.3d 201]

development.7 Therefore, I would affirm the trial 

court's judgment.

 

1 There is no evidence that Green had obtained 

a medical degree, and she did not claim to be a 

psychologist or psychiatrist.

 

2 The dissent cites three cases from our sister 

courts to support the proposition that a nonparent 

may be awarded custody even without a blameworthy 

act of the parent. Each of those cases is 

distinguishable from the present case, and moreover, 

the precedent in those cases is not binding on this 

Court.

First, in In re G.R.W., the 

Texarkana Court was dealing with 

circumstances much different from 

those in this case. 191 S.W.3d 896, 

898-900 (Tex.App.-Texarkana 

2006, no pet.). In that case, the 

father of the child had been 

indicted for sexual assault of the 

mother for the very sexual 

encounter that led to the birth of the 

child, and the father was convicted 

of the lesser offense of child 

endangerment. Id. at 898. 

Moreover, the court pointed to the 

fact that the father was a smoker 

and that the child had severe 

respiratory problems. Id. at 900-01. 

These facts establish specific, 

identifiable acts of the parent that 

would be likely to impair the 

physical health or emotional 

development of the child. Further, 

there is no indication that the 

Texarkana Court relied on the 

proposition that a nonparent may 

be awarded custody of a child 

without a blameworthy act of the 

parent; the opinion seems to merely 

state this proposition in dicta. See 

id.

Second, in In re Rodriguez, the 

facts are again distinguishable in a 

meaningful way from the present 

case. 940 S.W.2d 265, 266-70 

(Tex.App.-San Antonio 1997, writ 

denied). In that case, the birth 

mother gave the child up for 

adoption and relinquished all 

parental rights, and the father had 

met the child only twice in the 

child's life. Id. at 267-69. 

Moreover, there was evidence 

presented that all interactions and 

visitations were initiated and 

facilitated by the child's paternal 

grandmother, not by the father 

himself indicating a lack of concern 

for the child, especially in the 

child's early life, which the 

evidence does not support in this 

case. Id. at 269-70. Additionally, 

the majority for the San Antonio 

Court wrote that it didn't believe 

that "[section] 153.131, Texas 

Family Code contemplates that the 

environment which 'significantly 

impairs the child's physical health 

or emotional development' must be 

the product of some act or omission 

on the part of the natural parent," 

which we consider to be a blatant 

misstatement of the law. We concur 

with Justice Carr's dissent insofar 

as it applies to this case. In 

response to the majority, Justice 

Carr wrote:

[W]hile I agree with the majority 

that our record reflects "that there 

is no evidence that any act or 

omission, behavior, or conduct by 

[the father] will impair [the child]," 

I respectfully dissent because, 

unlike the majority, I do not agree 

that this case is a case of first 

impression nor distinguishable 
Gray v. Shook, 329 S.W.3d 186 (Tex. App., 2011)

 - 14 -

from Lewelling v. Lewelling, 796 

S.W.2d 164 (Tex.1990). I would 

hold on this legal issue that 

Lewelling is controlling; and, that 

at the present time [and] under the 

current state of Texas laws, the 

Lewelling standard that non-parents 

seeking custody here cannot benefit 

from their bonding or attachment 

with the child by "offering it as 

some evidence of significant 

impairment to [the child]." Id. at 

168. Accordingly, because [the 

nonparent's] significant impact 

argument was rejected by our 

Supreme Court in Lewelling, we 

are required to reject the same 

argument here.

Id. at 275 (Carr, J., dissenting).

Third, in Chavez v. Chavez, the 

mother who was seeking to 

reacquire custody was shown to be 

a drug user and there was evidence 

that she was physically abusive. 

148 S.W.3d 449, 453 (Tex.App.-El 

Paso 2004, no pet.). The El Paso 

Court overturned the trial court's 

ruling against the mother on other 

grounds and never actually reached 

the issue of whether these specific, 

identifiable acts or some other 

reason would prevent the mother 

from maintaining custody of the 

children. Id. at 459. If the dissent 

agrees with the reasoning in 

Chavez, it should at least recognize 

the present case as a "close call," 

and settle any doubt in favor of the 

parent, as the El Paso Court 

required. See id.

 

1 Whitworth v. Whitworth, 222 S.W.3d 616, 623 

(Tex.App.-Houston [1st Dist.] 2007, no pet.) (op. on 

reh'g).

 

2

In re G.R.W., 191 S.W.3d 896, 900 (Tex.App.-

Texarkana 2006, no pet.) ("In fact, even without 

evidence establishing any blameworthiness of the 

parent, the parental presumption can be rebutted by 

other evidence establishing the statutorily required 

negative effect on the child."); In re Rodriguez, 940 

S.W.2d 265, 273-75 (Tex.App.-San Antonio 1997, 

writ denied) (concluding that nonparent had rebutted 

parental presumption solely by producing evidence 

that the effect on the child of being removed from the 

only home she had ever known would be 

"devastating").

 

3 Chavez v. Chavez, 148 S.W.3d 449, 458-59 

(Tex.App.-El Paso 2004, no pet.) (citing De La Pena,

999 S.W.2d at 529).

 

4

I note that Green testified that even visits with 

a child once every two months, as Gray claimed he 

did, is inadequate for bonding to occur.

 

5

See In re G.R.W., 191 S.W.3d at 900; Chavez,

148 S.W.3d at 458-59; In re Rodriguez, 940 S.W.2d 

at 273-75.

 

6

See Tex. Fam.Code Ann. § 153.131; In re 

G.R.W., 191 S.W.3d at 900; Chavez, 148 S.W.3d at 

458-59; De La Pena, 999 S.W.2d at 529 ("We also 

agree that because safety, security, and stability are 

critical to child development, the danger of uprooting 

a child may in some instances rise to a level that 

significantly impairs the child's emotional 

development."); In re Rodriguez, 940 S.W.2d at 270-

75; see also In the Interest of R.T.K., 324 S.W.3d 

896, 905 (Tex.App.-Houston [14th Dist.] 2010, no 

pet.) (mem. op.) (concluding that the record 

sufficiently supported the trial court's conclusion that 

the nonparent rebutted the presumption found in 

section 153.131(a) because based on the evidence 

presented, the trial court could have reasonably 

concluded that removal of the child from "the only 

home he has known" would significantly impair his 

emotional development).

 

7

See Whitworth, 222 S.W.3d at 623; see also In 

the Interest of C.A.M.M., 243 S.W.3d at 214-15 ("But 

the fact that a trial court may decide a matter within 

its discretionary authority in a different manner from 

an appellate court in a similar circumstance does not 

demonstrate an abuse of discretion.") (citing Downer 

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 

241-42 (Tex.1985)).
Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)

 - 1 -

381 S.W.3d 540

56 Tex. Sup. Ct. J. 10

Ann Wood SHOOK, Petitioner,

v.

David GRAY, Respondent.

No. 11–0155.

Supreme Court of Texas.

Oct. 5, 2012.

Summaries: 

Source: Justia

G.W., David Gray and Lucy Wood's nine-yearold daughter, had lived with her maternal 

grandmother, Ann Shook, for her entire life. The 

trial court appointed Shook as G.W.'s sole 

managing conservator and named Gray and 

Wood as G.W.'s possessory conservators. The 

court of appeals reversed, holding that the trial 

court abused its discretion in naming Shook, a 

nonparent, as G.W.'s sole managing conservator 

because Shook failed to present any evidence 

that could overcome the presumption that a 

parent should be named as managing 

conservator. The court then remanded the case 

to the trial court to determine the custody and 

visitation rights as between Gray and Wood 

only. The Supreme Court affirmed the court of 

appeals' judgment remanding the case but 

reversed to the extent the judgment limited the 

trial court's consideration of the role Shook 

should play in G.W.'s life, whether as 

conservator or a person with defined access 

rights.

 [381 S.W.3d 541]

Cynthia T. Sheppard, Attorney at Law, Cuero, 

Jack W. Marr, Marr, Meier & Bradicich LLP, 

Victoria, for Petitioner.

Audrey Mullert Vicknair, Law Office of Mullert 

Vicknair, William A. Dudley, Law Office of 

William A. Dudley, P.C., Corpus Christi, David 

S. Kidder, Dallas, for Respondent.

PER CURIAM.

 G.W., David Gray and Lucy Wood's nineyear-old daughter, has lived with her maternal 

grandmother, Ann Shook, for her entire life. 

Although G.W.'s parents have been in and out of 

her life to varying degrees since she was born, 

no one disputes that at the time of the custody 

hearing the grandmother's home was the only 

home G.W. had ever known. We are asked to 

decide whether the court of appeals erred by 

remanding this case to the trial court for 

hearings to determine the custody and visitation 

rights as between Gray and Wood only. We 

grant Shook's motion for rehearing of her 

petition for review and, pursuant to Rule 59.1 of 

the Rules of Appellate Procedure, hold that, by 

barring the trial court from considering Shook, 

the court of appeals unduly restricted the trial 

court's ability to protect the child's best interest.

 When G.W. was three-and-a-half years old, 

Gray filed an original suit affecting the parentchild relationship requesting that he and Wood 

be appointed joint managing conservators and 

that Wood be given the primary right to 

establish G.W.'s residence.1 Shook intervened on 

the basis that she “has had actual care, control, 

and possession of [G.W.] for more than 6 

months ending no more than 90 days preceding

 [381 S.W.3d 542]

the date of filing of [the] petition.” SeeTex. 

Fam.Code § 102.003(a)(9). She requested that 

she and Wood be appointed joint managing 

conservators and that she be named the joint 

managing conservator with the exclusive right to 

designate G.W.'s primary residence. She also 

asked that Gray be appointed possessory 
Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)

 - 2 -

conservator. Subsequently, Gray amended his 

petition to request that the trial court appoint 

him joint managing conservator with the 

exclusive right to establish G.W.'s residence. 

Gray did not specify who should be named the 

other joint managing conservator.

 Shortly after G.W. was born, G.W. and her 

mother moved into Shook's home in Victoria, 

Texas. At the time of the custody hearing, when 

G.W. was almost five years old, G.W. still lived 

with Shook. Wood had moved out of Shook's 

home to live on her own two years earlier, and 

Gray had lived in Houston, New Jersey, 

Colorado, and Seattle between G.W.'s birth and 

the time of the custody hearing. The trial court 

appointed Shook as G.W.'s sole managing 

conservator and named Gray and Wood as 

G.W.'s possessory conservators.

 The court of appeals reversed, holding that 

the trial court abused its discretion in naming 

Shook, a nonparent, as G.W.'s sole managing 

conservator because Shook failed to present any 

evidence that could overcome the presumption 

that a parent should be named as managing 

conservator. 329 S.W.3d at 198–99;Tex. 

Fam.Code § 153.131 (stating that a parent shall 

be appointed as a sole managing conservator or 

both parents shall be appointed as joint 

managing conservators “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”). Additionally, the court of 

appeals remanded the case for the trial court to 

reconsider the conservatorship and access rights 

between Gray and Wood only and explained:

 [T]he trial court held in Shook's favor, 

making it unnecessary for that court to 

determine G.W.'s best interest as it related to the 

custodial or visitation rights that should exist 

between Gray and [Wood] only. Because of this, 

and because we have overturned the trial court's 

ruling designating Shook as sole managing 

conservator, we find it to be in the interest of 

justice not to simply render judgment in Gray's 

favor. Further, more than a year has passed since 

the custodial hearing; circumstances may have 

changed during this time such that it would not 

be in G.W.'s best interest to appoint Gray as her 

sole managing conservator, and we have no 

ability to determine the present circumstances of 

any of the parties, nor do we have the luxury of 

sitting as a fact-finder. For the forgoing reasons, 

we remand this case to the trial court for 

custodial hearings to determine the rights as 

between Gray and [Wood] only.

329 S.W.3d at 199. Shook contends that the 

court of appeals should not have precluded the 

trial court from considering her role in G.W.'s 

life on remand. We agree.

 By foreclosing the trial court from 

considering Shook on remand, the trial court 

may be unable to protect G.W.'s best interest. 

Tex. Fam.Code § 153.002 (“The 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.”). As the court of appeals 

pointed out, it had “no ability to determine the 

present circumstances of any of the parties, nor 

d[id it] have the luxury of sitting as a factfinder.” Id. That statement illustrates the 

problem with remanding for custodial hearings 

between Gray and 

 [381 S.W.3d 543]

Wood only. The trial court must be able to 

consider the changed circumstances. G.W. is 

now nine years old and over four years have 

passed since the trial court issued its order. Even 

assuming Shook previously failed to present 

evidence capable of overcoming the parental 

presumption, it does not follow that she will 

necessarily be unable to overcome the parental 

presumption under the present circumstances.

 Moreover, Shook pled and established 

general standing to file a suit for conservatorship 

and access, as someone who has had care, 

control, and possession of a child for the 

designated time. Tex. Fam.Code § 102.003 
Shook v. Gray, 381 S.W.3d 540, 56 Tex. Sup. Ct. J. 10 (Tex., 2012)

 - 3 -

(authorizing suit by “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”). Shook's inability to 

overcome the parental presumption does not 

deprive her of standing to be considered for 

conservatorship or access. If Shook fails to 

overcome the presumption that a parent should 

be named managing conservator on remand, the 

trial court may still name Shook as a possessory 

conservator or grant her access if that would be 

in G.W.'s best interest.

 Thus, we conclude that the court of appeals 

erred in preventing the trial court from 

considering Shook for conservatorship of or 

access to G.W. Accordingly, without hearing 

oral argument, we affirm the court of appeals' 

judgment remanding the case, but reverse to the 

extent the judgment limits the trial court's 

consideration of the role Shook should play in 

G.W.'s life, whether as conservator or a person 

with defined access rights. Tex.R.App. P. 59.1.

--------

Notes:

 

1. In his petition, Gray stated, “The best 

interest of [G.W.] will be served by the 

appointment of Lucy Wood as joint managing 

conservator with the exclusive right to designate 

the primary residence of the child, and [Gray] so 

requests.” Gray further requested that 

“appropriate orders be made for access to the 

child and the allocation of the rights and duties 

of the conservators.” Although Gray does not 

explicitly state the type of conservatorship he 

sought, we infer that he wished to be named a 

joint managing conservator.