### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 20
- 00413
- CV

M. A. R. G., Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 146TH DISTRICT COURT OF BE LL COUNTY NO. 303,460
- B, THE HONORABLE JACK WELDON JONES , JUDGE PRESIDING

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

M.A.R.G. (Fat her) , who lives in Guatemala, appeals from the trial court ’ s de novo
order appointing non
- par ent caregivers as managing con servator s of Father ’ s two chil dren, A.R.
and C.E

. 1 T he trial c ourt ap po inted the chil d ren ’ s non
- parent care givers as their perm anent joint managing conservators , did not appoint Father as a managing or possessory conservator , authorized Father to have one
- hour of teleph one c o ntact with his children weekly , and g rant ed
the care gi vers discre t i on whether t o allow parental vis i tation

. The trial court’s order also addressed Mother’s child, A.E., with father M.E. Because Mother and M.E. have not appealed
the order , w e affirm the de novo order to the extent it concerns th e children’s half

- sib l i ng A.E. However, b ecause w e conclude t hat the trial cour t abus ed i ts discretion as to Father ’ s r ights to

1 We r e fer to M.A.R.G. by his i nitial s or as Father, the children ’ s mother as Mother, and the children and the other father b y their initials

. See Tex. Fa m. Code § 109.002(d); Tex. R. App. P. 9.8.2

his children , we reverse th e portion of the trial court ’ s orde r regarding A.R. and C.E. a nd remand
the case to the trial court for further proce edings consistent with t hi s opinion

.

BACK G ROUND In October 2018, the Department filed an original petit io n in a suit affecting the parent

- child relationship concer ni ng A. R. and C.E. and requested an order for protection of the
chi ldr en i n an emerge ncy arisi ng from Mother ’ s alleged conduct inc l uding using “ cocaine and crystal meth

. ” At that time, A.R. , who was born in Guat e mala in J an uary 2015 , was three

- years old , and C.E. , who w as born in the United Sta tes in March 2017, was one
- yea r ol d . Additionally,
Mo ther was pregnant at that time with A .E

. , who was born in Febru ary 2019. The Department later amended its petition to include A.E.

In the removal af

fida vi t, the Depart ment ’ s r epresentative averred that M.A.R.G.

w as the f ather of A.R. and C.E. and that h e lived in Guat emala. During the pe n dency of the case, the Department attempted to locate Father , inc luding asking Mother for contact information , b ut
she denied having his contact informa tion

. T he Dep artment also requested assist ance from t he
Guatemala ’ s Consulate G eneral Office in Hous t o n , Texas and checked Facebook but was unsuccessful in locating Father

. In June 2019 , the Department served Fa ther by citation by publication in the Bel ton Journal , and the trial court ap pointed a n at t orney ad litem to r epresent
Father ’ s interests

.

The final hear i ng before the associate judge occurred on Septe mber 26, 2019

. F ather did not personally appear, and his a ttor ney announced “ not ready

. ” Th e attorne y advised3

the associate judge that they “ loc ated a nd spoke to [Father] on the phone last week ” 2 and that
Father had not “ actually been served

. ” The at tor ney also referenced the “ Hague Con vention , ”

see generall

y 22 U. S.C. A

. § § 900 1

– 11 ( Intern ational Child Abductio n Remedi es Act or ICARA) (i mplem e nting Hague Con ven tion on Civil Aspects of Internation a l Child A bduction) , bu t the
associa t e judge proceeded with the hea r ing

. The Department did not seek to terminate parental rights but sought to have the c hi l dren ’ s careg ivers , who were “ fictive k in ” t o M other, appointed
as the children ’ s permanent joint m a naging conservators. 3 The Department had placed the
children and their hal f

- sibling A.E. with the careg ivers in March 2019, and Mother did not oppose t he Department ’ s recommendations f or the chi ldren

. T he only witn ess to testify at the Sep tember 2019 hearing was the caseworker overseeing the case begin ning in July 2019. She testified that she contact ed Father through “ a ph one number provided to her ” around the time of the hearing. During th e pho ne call, s he told
h im that she “ worked with the State a n d that the children had been removed from the mother , ”
and Father responded that he “ did n ot know anything that was going on because the Mother had
left the co unt ry after some sort of argu ment , ” 4 “ had no idea whe re h is children w ere , ” and “ had
file d a mis sing persons report for his children , but since the mother had left the count ry, he

2 Accord ing to her testimony during t he d e novo hearin g, t he casewo rk er , who is fluent in Spanish, transla ted th e ph one conversation be tween Fa ther and his attor ney. Th is conversation was the attorney ’ s first contact with Father

.

3 Init ially, the Department ’ s at torney advised the associate judge that the De partment sou gh t temporary managing conse rvatorship f or A.R . a n d C.E. because Father had n ot been served, bu t t he Department ’ s attorney changed positions, stating that “ [w] e ’ re okay w ith PMC on all three kids th en ” after the associate judge comment ed, “ Bec ause if you do n ’ t plan on serving [Father] anyways, let ’ s just let him go through whateve r process he needs to go through because the kids will be w he re t hey need to be anyway. ”

4 The caseworker testi fied tha t , alt hough she could not recall ex actly, Fath er told her so m ething like the argument was b etween Mother a nd som e other fami ly member.4

w asn ’ t able to do anything about it

. ” The caseworker further testified that it “ seemed ” to her that
the infor ma tion she conveyed to him was the first information he had received regarding
his children.
On October 10, 201 9 , the associate judge signed an order appointing the
careg ivers as the childre n ’ s non
- parent joint manag ing conservator s
. T h e court fo und M. A .R.G.
to b e the fat her of A. R. and C. E. , s ee Tex. Fam

. Code § § 160.20 1 (b) ( s tatin g circumstances for establishing fat her

- child relationsh ip ), .20 4 ( addressing circumstances when paternity is presumed ) , but did not appoi nt him as managing or possessory c on s ervator of the chil dren. The
children ’ s care givers we r e given discretion whether to allow parental visitation but or dered to
allow Father one
- hour of telephone contact with his children from 6:00 to 7:00 p.m. on Sundays

. Relevant to the dispositive is sue s in this appeal , t he fin dings in the order included :
[T] he appointment of [ Father ] as the man aging conserv ator of [A.R.] and [C.E.] w ould not be in the best int erest of the children because the appointment would significantl y impair the children ’s ph ysica l health a nd em otio nal dev elop ment.

Father t imel y requested a de novo hearing concern ing the associate judge ’ s decision to appoint the care givers as the joint m anaging conservator s of his children

. 5 Father

5 Father also req uested a de novo hearing on the associate judge ’ s following findings regarding possession of and access to his chi ldren :
[T] he appointment of eithe r of the pare n ts as a possessory conservator of the child / ren is n ot in t he best interest of the chi ld / ren because the appointment would endanger the physical or emotional welfare of the child / ren.
[G] iving e ither of the parents po ssessi on of the child / r en pursuant to t he “ standard possession order ” of th e Texas Fa mi ly C ode woul d endanger th e physical and emo tional welfare of the ch ild / ren.5

also f iled an ans wer generally den ying the D epa rtment ’ s a llega tions and sought the reco very and

r e t urn of A.R. pur suan t to the “ Hague Convention ” beca use A .R. “ was abducted from his country of habitual residence, Guat emala ” and Father did not consent to Mother removing A.R.
f rom Guat emala and rema inin g with A .R. in t he United St ates

.

The de no vo h e aring b e fore the referring court occurred in May 2020, and Father , who was in Guatemala, appeared by telephone for the hearing. See Tex. Fam. Code § 201.015 (addressing de novo hear in g before referri ng c o urt)

. At th e o ut set of the hearing, t he tri al cou r t
stated that the hearing would be limited to “ evidence of matters that were in existence ” at
the time o f the September 2019 hearing , explaining that “ anything that ’ s happened since Septem ber 26 th of 2019 , will not be ad mis si ble and not be relevant in thi s hea ri ng
. ” 6 The
witnesses at t he hearing were Father and the caseworker , and the guardian ad litem provided hi s opinion to the trial court as it exi sted at the time of the September 201 9 hearing

. Mo ther did not
appe ar for the hearing.

F ather testifie d t hat he and Mother married in Guat emala in 2015 and lived

to ge ther with A.R. un til Ja nuary 2017. H e confirmed that A.R. was b orn in Guat emala a nd

[T] he possession and access to the child / ren by either of the parent s provided b y this Order a re the least restric tive limitations t o protect the physical and emotion al welfare of the child / ren and are i n the best intere s t of the child / re n.

In its briefing , the Department repr esents that Father was appointed possessory co n servator, but t he associate judge ’ s order and the de novo order ex press ly state that no pare nt was appoi nted pos se ssor y co nservator.

6 But see I

n re R.R

. , 537 S.W.3d 6 21, 62 3

– 2 4 (Tex . App.

— Austin 2017, orig. proceeding) ( describing de novo hear ing before referring court as “ new and ind epend ent act io n on those issues ra ised ” in request for hearing and collecting cas es in wh ich “ co urts tre at the de novo hea ring as a n e w trial, in which the parties are permit ted to present witnesses to testify as to the issue s raised in the hearing re quest ” ).6

testified that he took care of A .R. until January 20 17 wh en Mother , wh o was pregnant with C.E.,

“ escaped wi t h her broth er ” and A.R. to the U nited States without Father ’ s con sent or kno wledge
and that he did not know where they were
. He tes tified that when he discove red that they w ere missing, he “ quickly w ent t o the P GN, th e PGN here in Gu atemala, and [he] q ui c kly activated
the Alba

- Keneth Alert. That ’ s an al er t that ge ts activated here whenever a min or is missin g or had been kidnapped or abducted

. ” 7 He testified that he “ went to th e national p olice over there in
Guat emala a nd also by the municipal judge ” and confirmed that he pressed criminal charges for

“ abduction of a minor. ” He further testified that he ne ver sa w Mother again, that he “ never had
communications with her until lon g a fterwards, ” tha t it had b een more than o ne year since he had any communic at i ons with her, and that he did not know where she was when he did have
communications w ith her

. 8 Concerning the Department ’ s case , he testified tha t he received a call in September 201 9 telling him “ t hat t here had been a hearing and permanent conservators h ip had
been

— alr eady been declared and that ’ s when [he ] started finding out ” and that he had not had
any other contact w i th anyone regarding the case.

Althou gh he had not had contact with A.R. after Janu ary 2017 o r an y contact with
C.E. , h is plans for h i s children if they were r eturned to him was for them to live with him in
Guat emala. He t estified that h e wanted his children to be returned to him “ because [h e] can ’ t go visit them over there, and a video call is n ot t h e same th ing as having them here ” a n d that he
would “ take care of them ” and be a “ goo d father. ” He te stified that the children would go to

7 Father att e mpted to off e r a copy of the alert during the h e arin g , but the t ri al court did not al low it because the doc ument w as i n Span ish. The record reflects that t h i s ty pe of a lert in Guatemala is simi lar to an AM BER alert

.

8 Father testified that whe n he did ha ve contact wi th Mother, it was through Facebook M e sseng er
. He al so h ad contact with on e of the caregivers thr ough Faceboo k M essenger afte r he w as told t hat they were taking care of his children.7

school in the villa ge where he lived ; that he ow n s his home , two taxis , and another vehicle that
he a lso use s as a t axi ; and that he ha d family that wo u ld assist him with caring for th e child ren , including his younger sister who live d at his ho me
. He provi ded the court with his average monthly income at the time of the Se ptem ber 2019 heari ng , and co pi es of his li cense s and titles

to operate his t axi bus i n ess were ad mitted as exhibits

. H e also denied ever engaging in criminal
conduct or using controlled su bs tances

.

The c aseworker testified that sh e had h er “ first contact ” with Father in a “ very brief ” cal l at the t im e of the September 2019 heari ng t h rough a phone number that t he caregiver provided to her and that she explained to him that “ his children were in care and th at we are going to a f

inal hearing

. ” When asked i f Father u nderstood her, s he an swered that she d id no t

“ think that he ha d enough t ime to gra s p what [she] was saying du e to him no t knowing where his
children were ” and that Father explained that “ [t] he only thing he was able to t ell [her] was that
the las t thing he knew he had fil ed a missing child r ep ort f or his son because the mothe r had run
off with him. ” She f

urther testified that she “ [ did not ] know anything about [ Father ] ’s status ”
when asked if she had “ any articu lable con cerns about [Father] being a danger to either of the
chil dren ’ s health a nd welf are. ” When asked what steps were required f or the Department to have considered Father as a pl acement for the children in September 2019, she testified that it would
have need ed to es tab lish contact wi th him and that she was “ no t sur e ” about “ every th ing else ”
because he lived outsid e the United Sta tes . She also testified that a home study would be required , but she wa s “ not sure ” who would have done it , “ how the process is ” do ne , or the
amount of time needed , although she was “ p retty sure we would ha ve had to have gone through a

con s ulate and coordinated it through us and his cou ntry. ”8 The guardian ad litem recomme n ded t hat the trial cour t leave the children w h e re they we re, although he “ certainly ” did not “ hav e any probl em w ith so me so rt of shar ed custody

. ” He expressed concern that the chi ldren did not have a relat ionship with Father , and it was his opi nion that the children should sta y with their half

- sibli ng A.E. a nd t he caregiver s
. It was the guardian ad litem ’ s under st anding th at the child ren “ cont inued to do well ” in that placement and that they were doing well prior to September 2019

. When asked about an extension of the case in order to get some unresolved questions an s wered , the g u ar dian ad litem answered that h e did

not know becau se h e d id not “ know how to com munic a te with G uat emala ” and tha t he “ would
want to have access to the mother to ask her to veri fy ” Father ’ s testimony during the hearing but
did not know where Mother was and did not think that Mo ther “ had any cont act with anyb od y

s ince Nove mber of last ye a r
. ” H e also stated that he would want clarification about the interpreter ’ s trans latio n that Fat her said the mother “ escap ed

. ” He expressed that he would like

t o know “ what ’ s g oing on behind ” Mother feeling like she needed to lea ve with her two

- year
- old
child an d while se v en months pr egnant to “ come to a w hole other country. ”

In closing argument, the Departm e nt ’ s attorney stated that the Department was

“ open ” to the idea of Father bein g appointed a possessory c onse rvator with th e ability to work

tow ards becoming a managing conse rvator and req uested t hat, absent agreement, the trial court give Father visitation of one weekend a month and allow Father to h ave agreed elec tronic
communication with the children. In its de novo ord er appointing manag ing conservator , however, the trial cour t adopted and approved the associate judge’s findings , appointed the
children ’ s caregivers as the join t managin g conserv at ors, did not appoint Father as a man agin g or
possessory con s ervator of his chi ldren, allowed p aren tal visitation at the discretion o f the joint9

managing conservators, and ordered that Father “ is allowed to have telephone contact with the
children on Sund a ys between 6:00 p. m. and 7:00 p. m
. ” Father ’ s appeal followed

.

ANALYSIS
Re turn of A.R. to G ua t ema la

I n h is first i ssue, Father “ seeks mandamus for the trial cour t to immediately ord er the ret ur n of [A.R.] to him in Guat emala at the Department ’ s sole expense. ” Father ar gues that
the trial court abused its discre tio n or altern a tivel y erred when i t ex er cised jurisdiction over A.R.
because he is in the U nited States illegally and should b e d eported back to Guat emala where he is a legal citi zen. As auth ority for t his po sition, Father points to the evidence of Mother ’ s

“ unjustifiab le co nduct ” of rem o ving A.R. from Guatemala and t aking him to t he Unit ed State s without Father ’ s knowledge or con sent an d cites section 152.208 of t he Uniform C hild Custody
Jurisdiction and En forcement Act (UCC JEA)

. See Te x. Fam. Code § 152 .20 8 (a) ( statin g
gen erally th at “ i f a court of this state has juris diction under this chapter because a person seeking to invoke its jurisdiction has engaged in unjus tifiable conduct, the court shall decline to e xercise its jurisdictio n ” ) ; In re Lewin , 149 S.W.3d 727, 73 9

– 4 1 (Tex. App.

— Aus tin 2004, orig. proceeding) (concluding that trial court lack ed subject matter jurisdiction and abused its
discretion in failing to enforce Hagu e Con vention order)

.

The Department ’ s p etition , however, was not br ought u nder the UCC JEA but

un der chapter 262 o f the Family Code to p rotect the health and safety of the children

. See Tex.
Fam. Code § 262.0 0 1 (authorizing governmental entity with inte rest in child to file suit affectin g
paren t

- child relations hip)

. “ A suit b ro ught by a gover nm ental entity requ est i ng an order under [chapter 262] may be filed in a court w ith jurisdiction to hear the suit in the county in which the10

child is found

. ” Id. § 262 .002

. Father does not challen ge the u nderlying reasons for the Departmen t ’ s removal of his chi ldren from M othe r or that A.R. was loc ated in Bell County wh en th e Department brought its suit

.

Father also argues that A.R. was wrongfully removed and was being retained in
the Uni ted Sta tes in v iolation of the H ague Convention on the Civil Aspe cts of I nternationa l
Ch ild Ab duction and that the Department should have t ake n action at its own expense to have
him returned to Father

. As support , Father ci t es section 152.315 of the Texas Family Code. See
id. § 1 52.315 (a)

. Father alter nat ively seeks reversal and a re ma nd t o the trial cou rt “ for a n entirely new trial with mandamus to the Bell County Attorney ’ s Office to imm ediately initiate a proceeding to obtain the r eturn of [ A.R. ] to his Fa the r in Guat emala under the H ague Convention
on the Civil As pects of Internat io nal Child A bduction. ” Fathe r, however, ha s no t cited , and we have not found, author ity that would require the trial court in the context of a chap ter 262 case to
order the “ return ” of A.R. to Guatemala “ at t he Department ’ s sole expense ” or to m andamus the
Bel l C ounty Attorney ’ s Office to initiate a proceed ing to return A.R. to his Father. See generally
I n re J.G

. , 301 S.W .3d 376 (Tex. App.

— Dallas 20 09 , no pet.) ( describing proced ures and analysis u nder H ague Con vention ) ; In re A. V.P.G. , 251 S.W .3d 117 (Te x. A pp.

— Corpus C hristi

Edinburg 2008, no pet.) ( same )

.

S ection 152.315 (a) of the Family C ode pro vides in relevant part that in certain

c ircumstances “ involving the Hagu e Convention on the Civil As pects of International C hild
Abduc tion, the pro secutor or othe r appropriate public official may take any lawful action, including resorting to a proceedi ng under this subchapter or any other available civil proceeding
to locate a child, obtain the return o f a ch ild, or enforce a child cust ody d etermina tion

. ” Th e pla in lang uage of this section provides discretion to the “ appropriate public official ” to tak e11

l awful action , see Tex. Gov ’ t Code § 311.016 (1) ( “ ‘ May ’ creates discretionary authority or grants permissio n or a power
. ” ), a nd the “ appropr iate pub lic officia l ma y not represent any party ” but “ acts on behalf of the court, ” see Tex. Fam. Code § 152.315(b). Thus, even if we assume wit hout deciding that the Department or the Bell County Attorney ’ s Office has th e authority to obt ain the return of A.R. to Guatemal a un de r section 152.315 , we cannot conclude
that the trial cou rt abused its di scretion when it did not re quire them to do so in th e conte xt of
this case
. W e overrule Father ’ s first issue.

Conservator shi p

In his remain ing four issues , Father c hallenges t he portions of the trial court ’ s order : (i) appoint ing the caregivers as the children ’ s m ana ging con servators and not appoint ing
him as a m anagin g or possesso ry conservator ; (ii) gi ving the caregivers d iscretion to allow hi m
pare ntal v isitation ; (iii) al lo wi ng one h our of teleph one co ntact week ly that is not enforceable ; and (i v ) not requiring the caregivers to provide him with information about his childre n or their

w hereabouts

. 9 He challenges th e le ga l and factual suff iciency of the eviden ce to support the trial

court ’ s un de rlying fin dings as to conservator s hip, possession of , and access to his children.

Becau se it is dispositive , we limit our analysis to Father ’s challenge s to the trial

cour t ’s de cision not to appo int him as a ma naging cons ervator of h is child re n and i ts u nderl ying finding t hat Father ’ s ap pointment as a managing conservator would not be in his children ’ s best
in t erest because it w ould significantly impair the children ’ s physical he alth and emot ional
dev elopment

. Father chal lenges the l egal and factual su fficiency of the evidence to support t his

9 See Tex . Fa m . Code § 153.073 (listing rights of par ent who is appoi n te d as a cons e rvator of c hild, i ncluding righ t to recei ve i nformation from any other conservator con cerning child ’s h ealth , education , and welfare )

.12

fin ding ; argues that the tria l court ’ s failure to appoint hi m as a managing conservator of his
children was an abu se o f dis cret ion, arbitra ry, and mani festly unjust ; and se ek s rever sa l and

re mand to the trial c ou r t for a new trial on th e issue of conservatorship

.

S tandard or Review
We review c onservatorship determinations under the abuse

- of

- discretion standard
of rev iew

. In re J. A.J. , 243 S.W.3d 611, 616 (Tex. 2007) ; In re A.M.T. , 592 S.W .3d 974, 976 (Tex. A pp
. — San Antonio 2019, pet. denied). A trial court ’ s c onservatorship determination

“ may be reversed only if the decision is arbitrary and unreasonable. ” In re J.A.J. , 243 S.W.3d

a t 616

. L egal an d f ac tual suffi ciency are not in depend en t grounds of error but factors
used to determine whether the trial court abused its discretion

. In re K.S. , 492 S.W.3d 419 , 426 (Tex. App.

— H ouston [14th Dist.] 2016, pet. denied) ; Zeif man v. Michel s , 212 S.W.3d 582, 58 7 (Tex. App.

— Austin 2006, pet . deni e d)

. U nder this standard, a n appellate court considers
whether the tri al court had sufficient information on which to exe rcise its discretion and , if

s o, whether the trial court erred in its applicat ion of discretion. Zeifman , 212 S.W.3d

at 588. T raditi onal sufficiency review applies with re gard to the first question

. Id

. ; Echols

v. Olivarez , 85 S.W.3d 475, 47 7 (T ex. App.

— Austin 2002, no pet.) ; see Ci ty of Kell er v. Wilson , 168 S.W.3d 802, 807 , 8 10 (Tex. 2005) (de sc ribing legal su fficiency review) ; Cain v. Bain , 709 S.W.2d 175, 176 (Tex. 1986) (describing factual sufficiency r e view)

. A trial court does not
abuse its discretion as long as there is some subs ta ntive, probative evidence to supp ort its
decision. Zeifman , 212 S.W.3d at 58 7; Ech ols , 85 S.W.3d at 477

.13

Managing Conserva tor

“ [ T ] here is a strong presumption that the best intere st of a child is served by keeping the child with a parent. ” In re R.R. , 209 S.W .3d 112, 116 (T ex. 2006) (per curiam) (c iting T ex . F am . C ode § 153.131(b) ) ; see I n r e C.J.C. , 603 S.W.3d 8 04, 807 ( Tex. 2020) (recognizing that “ [t]he presumption that the be st interest of the child is served by awarding custody to [a] parent is deeply embedded in Tex as l aw ” ( quoti ng In re V.L .K. , 24 S.W.3d 338,
34 1 (Tex. 2000 ) )) ; Phil l i p v. Texas Dep ’ t of F

am . & Protective Servs. , No. 03

- 11

- 00418

- CV , 2012 Tex. App. LEXIS 2760 , at * 23 (Tex. App.

— Austin Apr. 4 , 2012, no pet. ) (mem. op.) ( observing tha t parent

- child relations hip is con stitutionally pr ot ected and that par ent ’ s rig ht to

ca r e and control of child is fundamental libert y interest) ; s ee also In re C.J.C. , 603 S.W.3d at
807

– 08 (stating that there is “presumption that fit parents act according to the best interes t of
their c hildren” and have a “ fundamental ri ght to make d ecisions co ncerning care, custody, and control” of their children ( quot ing Troxel v. Granville , 530 U.S. 57, 72 (2000)))

.

Although trial co urts generall y have br oad discretion in determining fam ily law

mat ters, “ the legislat ure has explicit ly limited th e exer ci se o f that discretion when a nonparent
seeks to be appointed managing con servator. ” In re M. J. C. B. , No. 11

- 14

- 00140

- CV, 2014 Tex. App. LEXIS 12387 , a t * 3 (Tex. A pp.

— Eastland Nov. 14, 2014, no p e t.) (mem. o p. ) ( citi ng
L ewelling v. Lewelling , 796 S. W.2d 164, 16 8 (Tex. 1990) )

. “ When a court determines

cons ervatorshi p b etween a par ent and a nonparent, a presumption exi sts that appointing the parent as the sole managi ng conservator is in the child ’ s best intere st. ” Id. (ci tin g Tex. Fam. Code § 153.131 ). Genera ll y “ unless the cou rt finds that ap pointment of the parent or parents
would not be in the best inter est of the child because t he appointment would sign i ficantly impair
the child ’ s physical h ealt h or emoti onal dev elopm ent , a pa rent shall be appoin ted sole m a n ag ing14

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

. ” Tex. Fam. Code § 153.131 (a)

. Thus, it was the Department ’ s burde n to rebut th e parenta l
pr esumption b y present ing proof by a preponderance of t he evidenc e th at appointment of Father

as a managing conservator of his children would significantly impair his child ren ’ s physical
health or emotional dev elopment

. S ee id. § § 105.005, 153.131 (a) ; In re J.A.J. , 24 3 S.W.3d at
6 16 (stating that “ finding tha t appointm en t of a parent as managing conservator would significantly impair the child ’ s physical health or emotional development is governed by a preponderance

- of

- the

- evidence standar d ” ) ; Lewelling , 796 S.W.2d at 167 (obse rvin g that “ strong presumption ” i n favor of p ar ental custody imposes “ heavy burden o n a nonparen t ” and that “ [i ] t is no longer adequate to offer evidence that the nonparent would be a better custodian of the
child ” ) ; In re M. J. C. B. , 2014 Tex. App. LEXIS 12387 , a t * 3 (sa me)

.

Usually evid en ce of a pa re nt ’ s “ specific actions or omissions ” that d emon strate
the award of custody to the parent would have a detrimental effect on the child is sufficient pr oo f to rebut the parent al presumption , but the ev i dence must do more th an rais e mere suspici on or
spec ul at ion of possible harm

. See Lewell ing , 796 S. W.2d at 16 6

– 6 7 ( holding that best interest of child is served by awarding custody to natural parent absent “ evidence of specific actions or
omissions of the parent tha t demonstrate an award of custo dy to the pa ren t would result in physical or emoti onal harm t o th e child ” ) ; In re B.B.M. , 29 1 S.W.3d 463, 467 (Tex. App.

— Dallas 2009, pet. denied) (discussing significant

- impairment requirement and requiring ev idenc e
to do more th an r ai se “ suspicion or spe culation o f pos sible harm ” ) ; Whitworth v . W hitworth , 222 S.W.3d 616 , 623 (Tex. App.

— Houston [ 1st D ist.] 2007 , no pet. ) (explain ing that “ link between the parent ’ s conduct and harm to the child may not be based on ev idence which merely
raises a surmise or s peculation o f p ossibl e harm ” and that “ [t] here must be evidence to support15

the logical in ference that some specific, identifiable behavior or conduct of the parent will probably cause that harm ” ) ; see also In re S.T

. , 508 S.W.3 d 482, 492 (Tex. App.

— Fort Wo rth 2015, no pe t.) (prov iding examples of types of parental con duct that may constitute significant impa irment, such as sever e neglect or drug abuse and explaining that “ mate rial time to consider is the present ” )

.

The plain language of section 151.131( a ) , however, “ do es not necessarily require proof of a parent ’ s bla meworthy con du ct as a prere quisite to appoin tment of a non par e nt as

man aging conservator

. ” In re R.T.K. , 324 S.W.3d 896, 902 (Tex. App.

— Houston [14 th Dist.]
2010 , pet denied); see In re G.R. W. , 191 S.W .3 d 896, 9 00 (Tex. App.

— Texarkana 2006, no pet. ) ( observing that “ even without evidence establi shing any blameworthi ness of the parent, the parental presumption can be rebutted by other evidence establishing the stat utorily required negative eff

ect on the ch ild ” )

. “ T he best inter est of the child shall al ways be the primary

c onsideration of the court in determining the issu es of conservatorship and possession of and
access to the child

. ” Tex. Fam. Code § 153. 002 ; see Lenz v. Lenz , 79 S.W.3d 10, 1 9 (Tex. 20 02 ) (exp laining that “ [s]uits af fecting the parent

- child relationship are intensely fact driv en, which is why courts ha ve d eveloped best

- interest tests that consider and balance numerous factors ” ) ; Holley v. Adams , 5 44 S.W .2d 367, 371

– 72 (Tex. 1 976) (listi ng non
- e x cl us i ve factors for
bes t

- interest d eterm ination)

. Legal Sufficienc y of Ev id ence Father argu es that t here w as legally insufficient eviden ce to support th e trial

court ’ s finding of signi f

i cant im pairment an d , thus, that the Departme nt did not ove rc ome t he parental presumption that he s hould be appo inted the children ’ s managing con servator

. “ In16

determining whether there is legally sufficient evidenc e to support the finding under review, we
examine the rec ord for evidence and inferenc es that suppor t the challenged finding, while disregarding all contrary evidence and inferences. ” Zeifman , 212 S.W.3d at 588

. “ We must consider evidence favorable to the finding if a reasonable factfinder could, and d isregard evidence contrary to the fin ding unless a re aso nable factfinder could not. ” Id. (citing City of
K elle r , 168 S.W.3d at 82 8)

.

T he evidence before the trial court showed that at the time of the de novo hearing , the children ’s ages were five and th ree ; the y had been l iving with the ca re g ivers and t he ir half

sibling for over one year , s ee In re W.M. , 172 S.W.3d 718, 726 (Tex. App

. — Fort Worth 2005, no pet.) ( recognizing “ poli cy in Texas of t rying to keep siblings to gether when it is in their best
int e rest ” ) ; they were doing wel l in this p laceme n t , see H oll ey , 544 S.W .2d at 371

– 72 (including

amon g factors to consider in best int erest determination “ emotional and physical needs of the
child now and in the fu ture ” and “ parental abilities of the indiv idual s seekin g custod y ” ) ; and they
did not have a relati on sh i p with Father

. At the time of the hearing, Father remained in Guatemala, and he does not challenge the ev idenc e concerning the Department ’s reasons for removing the children from the Mother ; its effo rts to l ocate him, although unsuccess ful unt il

arou nd th e time of the Se pte mber 2019 hearing ; or Mot he r ’ s agreeme nt to th e children ’ s place ment with the caregivers

. The guardian ad litem also expressed co ncern with Father ’s testimony that M other “escape d ” w hen Mo ther ’s reasons were unknown a s to wh y she d ec ide d at

seven
- months pr egnant to leave Guatemala and come to the United Sta tes with A.R. with out
Father ’s knowl e dge or consent

.

Further, a lthough th e Department did not present affirmative evidence o f Father ’s

“ specific actions or omiss ions ” that would d e monstrate that placing the children with him would17

have a detrimental effect on the c hi ldren , the trial court reasonably could have disbelieved or gi ven less weight t o Father ’ s testimony about his car e of A.R . prior to Janua ry 2 017 and h is ability to ta ke care of his children if they w ere ret urned to him

. See City of Keller , 168 S.W.3d at 819 (explaining that fact finder is sole judge of credibility o f witnesses and weight to be given

te stimony and ma y choose to d isbelieve wit ness); McGa lliard v. Kuhlma nn , 722 S.W.2d 694, 697 (Tex. 1986) ( explaining that trial judge acting as fact finder may disbelieve witness) ; see also Zeifman , 212 S.W.3d at 588 (exp laining that when conducting legal sufficiency revi ew,
appe llate court disregard s eviden ce contrary to f in d ing unless reasonable factfinder could not ) ;
In re G.R.W. , 191 S. W. 3d a t 900

.

In the context of the Department ’ s sui t for the protection of th e c hildren , we

c annot c onclude that the trial court ha d legall y i n su fficient evidence on wh ich to exercise it s discretion conc erning conservat ors hip

. S ee Zeifman , 212 S.W.3d at 588 ; see also Danet v. Bhan , 436 S.W.3d 793, 797

– 9 8 (Tex. 2014) ( determining that evidence was legally sufficient t o support jury ’ s finding of s ubstantial imp airment) ; C ity of Keller , 168 S .W.3d at 827 (explaining
that “ final test for legal sufficien cy m ust always be whether t he evidence at trial would enable
reasonable and fair

- minded pe ople to reach the verdic t under review ” )

.

Factual S ufficiency of Evid e nce
Fa ther also argu es th at t h er e w as factually insufficient eviden ce to support th e
t rial court ’ s finding of signi f i cant impairment an d , thus, that the Departme nt did not ov ercome
t he parental presumption that he s hould be a ppo inted the children ’ s managing con s ervator

. Under the fact ua l sufficiency standar d o f review, we consider and weig h al l the evidence in the
record and overturn a f

inding only if it is so against the gre at weight and preponderance of18

evidence as to be cl early wr ong and manifestly unjust

. C ain , 709 S.W. 2d at 176 ; Ze ifman , 212 S.W.3d at 588

– 89

.

At the outset of the May 2020 hearing , t he trial c our t advised the parties that it
would “ consider evidence of matters that were in existence ” at the time o f the Septembe r 2019 hearing

— at a time wh en the Depar tment had only h ad brief contact with Father

— and that

“ anything that ’ s happened since S epte m ber 26 th of 2019 , will not be admis si ble and not be
relevant in th is hea ri ng
. ” Thus, the tr ial court ap parently did not cons ider evidence of the current
circumstances of th e par ti es or the children

. See In re S.T. , 508 S. W.3d a t 492 (explaining that

“ material time to consider is the present ” in signific ant impairment a nalysis ); see , e.g. , Shoo k

v. Gray , 381 S.W.3d 540, 542

– 43 (Tex. 2012) (observing th at , without con sidering cha n ge d
circumsta nces in cu stodial hearings , trial court may be u nable to protect best inte rest of child)

.

Further t he gua rdian ad litem stat ed th at he “ certain ly ” did not “ have an y problem
with so me sort of shared custody ” between Fa ther and the caregi vers, a nd the D epa rtment ’ s attorney represented to the court that the Department was “ open

— up t o the idea and the understanding of [Father] being nam ed as a posses sory co nservat or w ith the a bility to work wit h [the caregiver ] towards eve nt ually, yo u know, becom in g eve n a managing conservator with her. ”
W hen asked if she had “ any articu lable con cerns about [Father] being a danger to either of the
child ren ’ s health and welf are , ” the caseworker was unabl e to ide nt ify any con c erns , explainin g that she did not “ know a nything ” about his “status

. ” She also was unable to identify the specific steps th at would have been required f or the Department t o have con sidered Father as a pl aceme nt
f or the children

. S he testifi ed that the Department would have need ed to es t ab lish c ontact wi th
him but that she was “ not sure ” about “ everything else ” because he lived outside the United19

Sta tes

. She also testified that a ho me study woul d be required , but she wa s “ not sure ” w ho
would have done it , “ how the proce ss is ” do ne , or th e amou nt of time needed.

Given the parties ’ pos itions to the trial court and considering and w eighing all of
the evidence , we cannot conclude tha t the tri al c ourt had factually sufficient evide n ce on which

to exe rcise its discretion a s to its finding o f signi f ic ant impairmen t to overcome the pare ntal
presu mption

. See Zeifman , 212 S.W.3d at 588

– 89 ; see also Cain , 709 S.W. 2d at 176

. On this
bas is , we sustain Father ’ s i ssue s contending that the trial court a bused its discretion when it did not appoint hi m a ma na gi ng co nservator of his children

. See Zeifman , 212 S.W.3d at 588

.

CONCLUSION
For these r easons , we affirm the trial court ’ s de novo order to the extent it
concerns the children’s half

- sib l i ng A.E. , but we reverse that portio n of the trial cou rt ’ s de nov o order concerning A.R. a n d C. E. and rema nd the case to the trial court for fu rthe r proceedings consistent with this opin ion. 10

10 Because this suit was tried as a child pro tection case, we are of the opinion that the hearing o n reman d t o the trial court must be commenced w ithi n 180 days o f th is Court ’ s mandate. See Tex. R. App. P. 28.4 (c)

. On remand, the trial cour t should consider the chi ldren and parties ’ current circums tances , including a home study on Father by the compar able go v er nmental entity in Guatem ala to Child Prote ctive Servi ces
. See Shoo k v. Gray , 381 S.W.3d 540 , 542

– 43 (Tex. 2012) (explaining that “ trial court must be able to consider the chang ed circums tance s ” in its determination of conservatorship on remand ). The D e pa rtment should determine the ne ce ss ary step s to prompt ly o btain a home study on Father such as , at a minimu m, contacting the Guat e mala Consul ate . Further, a fter the trial court determines cons ervatorship , it should reconsider its findings on poss ess ion o f and access to the children in li ght o f it s conserv ator ship determination

.20 _________________________ _________________ Meliss a Goodwin , Justice
Before Justi ces Go odwin, Tri ana, and Smith Affirmed in Part; Reversed and Remanded in Part
Filed: December 11, 2020