TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-24-00274-CV

M. V., Appellant

v. 

Texas Department of Family and Protective Services, Appellee

FROM THE 340TH DISTRICT COURT OF TOM GREEN COUNTY

NO. C220030CPS-1, THE HONORABLE ELIZABETH WATKINS, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

M.V. (“Mother”) appeals from the trial court’s judgment appointing L.T. 

(“Grandmother”) as managing conservator of nine-year-old L.J.V. (“Child”).

1 She argues that 

the district court abused its discretion by declining to appoint her as managing conservator and 

by deviating from the standard possession order. We affirm. 

BACKGROUND

In May 2022, the Department of Family and Protective Services removed 

Mother’s three children from her care after receiving reports of domestic violence and that she 

had left Child—who is autistic and nonverbal—in the care of his older siblings for days at a time. 

The district court appointed the Department temporary managing conservator of the three 

1 We refer to the parents, their child, and other family by their initials or their relation to 

Child. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8. 
2

children and ordered Mother to comply with the service plan drawn up by the Department. The 

Department placed Child with Grandmother. Later, the district court granted the Department’s 

motion to sever Child’s case from that of his siblings.

The district court called the case for trial in March 2024.2 Mother appeared by 

counsel but did not attend in person. The district court heard announcements and requested the 

parties to discuss how to handle the case, including “anything short of termination of parental 

rights.” After an off-the-record discussion, the Department announced that it was dropping its 

request for termination and asking the district court to appoint Grandmother as Child’s managing 

conservator and Mother as possessory conservator with certain restrictions. Specifically, Mother 

would have supervised visitation with Child two Saturdays a month, with the visits changing to 

unsupervised after Mother had two negative drug tests. The Department also asked the court to 

order Mother to attend Child’s medical appointments and medication reviews.

The district court admitted hundreds of pages of Child’s hospital records, the 

family service plan, and Mother’s positive drug test and heard testimony from the Department’s 

caseworker. The caseworker testified that the restrictions were necessary because Mother had 

not shown she is a safe parent. At the time of the children’s removal, Mother was unemployed, 

receiving food stamps, and living with a friend in San Antonio. She was not taking Child to his 

medical appointments and was leaving him in the care of his siblings when she went out of town. 

To rectify these concerns, the service plan required Mother to stay in contact with the 

Department, obtain employment or other means of support and provide proof to the Department,

2 Mother had two other children. The eldest turned eighteen while the case was pending. 

On the same day as the final hearing in this case, the district court appointed Grandmother 

managing conservator of the other and Mother as possessory conservator. This Court affirmed 

that decision in cause No. 03-24-00273-CV.
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provide a stable home with age-appropriate beds and bedding, take parenting classes, obtain a 

substance abuse assessment and follow all recommendations, submit to random drug tests,

participate in counseling to learn how to address her substance-abuse issues and avoid 

relationships involving domestic violence, and participate in domestic violence counseling.

The caseworker testified that Mother had not complied with most of these 

requirements by the time of trial. Mother did not stay in regular contact with the Department and 

provided proof of employment for only a single month. At the time of trial, Mother had not 

informed the Department of her income or her residence, and the caseworker was unable to 

determine if Mother had a suitable home. Mother tested for drugs only once—the month before 

trial—and the sample was positive for a high dose of methamphetamine. And it was not until 

two months before trial that Mother completed the required parenting class and domestic 

violence class. On the other hand, the caseworker testified that the Department has no concerns 

with Grandmother.

The district court subsequently signed a judgment appointing Grandmother as 

managing conservator and Mother as possessory conservator.

3 The final judgment provides that 

Mother has supervised visitation with Child on the second and fourth Saturday of each month 

between 11:00 and 5:00 PM. If she has two clean hair follicle drug tests—one no earlier than 

May 1, 2024, and the second no earlier than August 1, 2024—she will have unsupervised 

visitation during the same time periods. Mother timely appealed.

3 The district court also appointed Child’s father as possessory conservator. He did 

not appeal.
4

DISCUSSION

Mother argues in two issues that the district court erred by declining to appoint 

Mother as managing conservator and by departing from the standard possession order.4

Standard of Review

We review issues related to conservatorship for an abuse of discretion. In re 

J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A trial court abuses its discretion when it rules 

arbitrarily, unreasonably, without regard for guiding rules or principles, or without supporting 

evidence. In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021).

In this context, legal and factual sufficiency are not independent grounds of error 

but are factors used to determine whether the trial court abused its discretion. A.S. v. Texas

Dep’t of Fam. & Protective Servs., 665 S.W.3d 786, 795 (Tex. App.—Austin 2023, no pet.). 

Under this standard, we determine “whether the trial court had sufficient information on which to 

exercise its discretion and, if so, whether the trial court erred in its application of discretion.” Id. 

We employ traditional sufficiency review to answer the first question. Id. If the evidence is 

sufficient, we “determine whether, based on the evidence, the trial court made a reasonable 

4 The Department argues that Mother waived these issues because she agreed to the 

district court entering this judgment. See Guzzetta v. Brimhall LQ, LLC, 678 S.W.3d 251, 258 

(Tex. App.—San Antonio 2023, no pet.) (“A party’s consent to the trial court’s entry of 

judgment waives any error, except for fundamental error, contained in the judgment, and that 

party has nothing to properly present for appellate review.”). While Mother’s appointed counsel 

stated on the record that she had no objection and would recommend that Mother agree, Mother 

was not present at the hearing. Under these circumstances, we decline to conclude that Mother 

has waived her challenge to the judgment. See C.C. v. Texas Dep’t of Fam. & Protective Servs., 

653 S.W.3d 204, 216 (Tex. App.—Austin 2022, no pet.) (observing that “termination 

proceedings should be strictly scrutinized” (citing Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 

1985))); see also Adams v. Starside Custom Builders, LLC, 547 S.W.3d 890, 897 (Tex. 2018) 

(“Constitutional imperatives favor the determination of cases on their merits rather than 

on harmless procedural defaults.” (citing Marino v. King, 355 S.W.3d 629, 634 (Tex. 2011) 

(per curiam))).
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decision, that is, that the court’s decision was neither arbitrary nor unreasonable.” Id. (citing 

Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.—Austin 2006, pet. denied)).

When reviewing a legal-sufficiency challenge, “we view the evidence in the light 

most favorable to the verdict, crediting favorable evidence when reasonable jurors could do so 

and disregarding contrary evidence unless reasonable jurors could not.” Pike v. Texas EMC 

Mgmt., LLC, 610 S.W.3d 763, 794 (Tex. 2020). Evidence is legally insufficient when 

(1) evidence of a vital fact is absent, (2) rules of law or evidence bar us 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 conclusively establishes the opposite of the vital 

fact. Id.

In reviewing for factual sufficiency, “we examine the entire record and consider 

and weigh all the evidence, both in support of and contrary to the challenged finding.” Ortiz 

v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). When a party attacks the factual sufficiency of an 

adverse finding on which it did not bear the burden of proof, we will set it aside only if the 

supporting evidence “is so weak as to make the verdict clearly wrong and manifestly unjust.” 

City of Austin v. Chandler, 428 S.W.3d 398, 407 (Tex. App.—Austin 2014, no pet.) (citing Cain 

v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)).

Conservatorship

Mother first argues that the district court abused its discretion by declining to 

appoint her as managing conservator without sufficient evidence that appointing her would harm 

Child’s development.
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The “best interest of the child” is always the “primary consideration” in 

conservatorship decisions. Tex. Fam. Code § 153.002. There is a rebuttable presumption that 

appointment of a parent as managing conservator is in the best interest of the child. 

Id. § 153.131(b). Specifically, a parent must be appointed managing conservator unless the court 

determines “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.” Id. § 153.131(a).

Generally, evidence of a parent’s specific acts or omissions “that demonstrate an 

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

sufficient proof to rebut the parental presumption. V.M. v. Texas Dep’t of Fam. & Protective 

Servs., 681 S.W.3d 465, 473 (Tex. App.—Austin 2023, no pet.) (citing A.S., 665 S.W.3d at 796). 

The evidence, however, “must go beyond raising the ‘mere potential threat’ of harm.” Id. 

(quoting In re B.B.M., 291 S.W.3d 463, 467 (Tex. App.—Dallas 2009, pet. denied)). Types of 

parental conduct that may constitute significant impairment include, but are not limited to, 

“severe neglect, drug abuse, parental irresponsibility, bad judgment, and history of 

mental disorders.” J.H. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00162-CV, 

2021 WL 2834719, at *4 (Tex. App.—Austin July 8, 2021, no pet.) (mem. op.) (citing In re S.T., 

508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.)). The nonparent has the burden to 

rebut the parental presumption by a preponderance of the evidence. V.M., 681 S.W.3d at 473.

Mother argues that the Department failed to carry its burden because it presented 

evidence of a “single positive drug test” and that she did not complete every requirement of her 

service plan. But the evidence shows more than an isolated failure by Mother to avoid using 

drugs. Even though Mother’s service plan required her to participate in frequent, random drug 
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testing and expressly states that a missed test “will be considered a positive,” Mother did not test 

until the month prior to trial. The district court could reasonably infer from her failure to test—

and from her single drug test that was positive for methamphetamine—that Mother used drugs 

throughout the case. See A.S., 665 S.W.3d at 797 (“[I]t is well-established that a parent’s failure 

or refusal to take drug tests supports an inference by the factfinder that the parent was using 

drugs.”). And the fact that she used methamphetamine so close to what she thought would be the 

final hearing on what was then the Department’s petition to terminate her rights is evidence that 

she is unable to provide Child with a safe environment. See A.B. v. Texas Dep’t of Fam.

& Protective Servs., No. 03-23-00054-CV, 2023 WL 4424848, at *3 (Tex. App.—Austin 

July 11, 2023, no pet.) (mem. op.) (explaining that “evidence of continued illegal drug use by 

parent, ‘knowing her parental rights were in jeopardy, supports the conclusion that she is not 

willing or able to provide the child with a safe environment’” (quoting J.G. v. Texas Dep’t of 

Fam. & Protective Servs., No. 03-22-00790-CV, 2023 WL 3634364, at *8 (Tex. App.—Austin 

May 25, 2023, no pet.) (mem. op.))). Mother’s failure to provide the Department with 

information about employment, income, and whether she possessed a stable and appropriate 

residence for Child further supports that conclusion.5 See Tex. Fam. Code § 263.307(a) (“[T]he 

5 Mother’s service plan required her to take these steps, and she now argues that her 

failure to satisfy all the requirements of her service plan should not automatically count against 

her. She cites In re R.J.G., which concerned termination of parental rights for noncompliance 

with a service plan. 681 S.W.3d 370, 373 (Tex. 2023); see Tex. Fam. Code § 161.001(b)(1)(O) 

(authorizing termination if parent “failed to comply with the provisions of a court order that 

specifically established the actions necessary for the parent to obtain the return of the child”). 

The supreme court held that trial courts “should not reflexively order termination when the 

evidence demonstrates noncompliance with a plan requirement” but “should consider whether 

the nature and degree of the asserted noncompliance justifies termination under the totality of the 

circumstances.” In re R.J.G., 681 S.W.3d at 373–74. Assuming that the court’s holding in In re 

R.J.G. has applicability here, the “nature and degree” of Mother’s noncompliance with her 

service plan, particularly her failure to drug test, supports the district court’s judgment.
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prompt and permanent placement of the child in a safe environment is presumed to be in the 

child’s best interest.”). Applying the appropriate standards of review, we conclude there is 

legally and factually sufficient evidence to support a finding that the Department rebutted the 

parental presumption by showing that appointing Mother as managing conservator of Child

would endanger the child’s “physical health or emotional development.” See Tex. Fam. Code 

§ 153.131(a). We therefore cannot say the district court abused its discretion by declining to 

appoint Mother as managing conservator.6

Standard Possession Order

Mother argues in her second issue that the district court abused its discretion by 

deviating from the standard possession order.

“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.” 

Id. § 153.002. There is a rebuttable presumption that the standard possession order “provides 

reasonable minimum possession of a child for a parent named as a possessory conservator or 

joint managing conservator” and “is in the best interest of the child.” Id. § 153.252. The court 

may deviate from the standard possession order if necessary for the child’s best interest. See id. 

§ 153.256; In re K.S., 492 S.W.3d 419, 429 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). 

In deciding whether to depart the standard possession order, the trial court must consider “the 

age, developmental status, circumstances, needs, and best interest of the child”; “the 

6 Mother does not separately argue that declining to appoint her as managing 

conservator is not in L.J.V.’s best interest. See V.M. v. Texas Dep’t of Fam. & Protective Servs., 

681 S.W.3d 465, 474–75 (Tex. App.—Austin 2023, no pet.) (separately addressing rebuttal of 

parental presumption and best interest).
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circumstances of the managing conservator and of the parent named as a possessory 

conservator”; and “any other relevant factor.” Tex. Fam. Code § 153.256.

Mother argues that the district court abused its discretion by reducing the number 

of her monthly visitations to two and requiring supervision for the visits.

7 But the record reflects 

concerns about whether Mother was stable enough to care for Child without supervision: there 

was no evidence about the state of her residence or whether she is employed; she tested positive 

for methamphetamine; and she failed to attend Child’s doctor’s appointments and medication 

reviews. The district court also provided for unsupervised visits if Mother has two clean hair 

follicle drug tests. Based on this record, we cannot conclude that the district court abused its

discretion in limiting visitation and initially requiring supervision. See id. § 153.256 (permitting 

trial court to consider child’s needs and circumstances of managing and possessory 

conservators); King v. King, No. 03-22-00329-CV, 2023 WL 3873496, at *11 (Tex. App.—

Austin June 8, 2023, no pet.) (mem. op.) (“Supervised visitation is a reasonable condition to be 

ordered to address potential safety concerns.”). We overrule Mother’s second issue.

CONCLUSION

We affirm the district court’s judgment.

7 The standard possession order generally provides that the possessory conservator has 

the right to possession on weekends starting the first, third, and fifth Friday of each month and 

Thursday nights during the school year. Tex. Fam. Code § 153.312(a).
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__________________________________________

Rosa Lopez Theofanis, Justice

Before Chief Justice Byrne, Justices Smith and Theofanis

Affirmed

Filed: August 15, 2024