# Fourth Court of Appeals **San Antonio, Texas** MEMORANDUM OPINION
N o. 04

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- CV IN THE INTEREST OF J .A.J. and M.L.W. , Children From the 225th Judicial District Court, Bexar County, Texas Trial Court No. 2014

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- 00640 Honorable Richard Garcia, Associate Judge Presiding Opinion by: Luz Elena D. Chapa, Justice Sitting: Karen Angelini, Justice Rebeca C. Martinez, Justice Luz Elena D. Chapa, Justice Delivered and Filed: December 31, 2014
REVERSED AND REMANDED Vanessa G. appeals the trial court’s order appointing her parents sole managing conservators of her children, J.A.J. and M.L.W. 1 The final order was rendered after the trial court, over Vanessa’s objection, determined the issue of permanent conservatorship at a status hearin g. Vanessa challenges the lack of notice and lack of a proper motion, the appointment of nonparties as sole managing conservators, the lack of findings rebutting the parental presumption, and the sufficiency of the evidence supporting the trial court’s bes t

- interest finding. We agree that the parental presumption was not rebutted, and we reverse and remand for a new trial.

1 To protect the identity of the minor child ren , we refer to the parents and child ren by their initials. See T EX
. F AM
. C ODE A NN
. § 109.002(d) (West 2011); T EX
. R. A PP
. P . 9.8.04

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B ACKGROUND In March 2014, the Department of Family and Protective Services (DFPS) filed a petition for protection of a child, for conse rvatorship, and for termination in a suit affecting the parent

child relationship . DFPS sought to terminate Vanessa’s parental rights to her two children ; it also sought to terminate the parental rights of Michael W., the father of M.L.W . DFPS further requ ested the appointment of a relative or other suitable person as permanent managing conservator of the children. Alternatively, DFPS asked to be appointed sole managing conservator. In an affidavit attached to the petition, a Child Protective Services Specialist stated DFPS received a report alleging neglectful supervision of J.A.J

. and M.L.W. by Vanessa and Michael. The affidavit detailed conflicting reports about whether Vanessa knew Michael used drugs while caring for the childre n and whether Vanessa and Michael had engaged in domestic violence in the presence of the children. The affidavit stated the children resided with Vanessa at the maternal grandparents’ residence, and it reported Vanessa as saying that Michael did not live with them.
T he trial court appointed attorneys ad litem for each parent and for the children. The maternal grandparents did not intervene in the case to seek custody. After a temporary orders hearing in April 2014, the trial court granted DFPS temporary managing conservatorship and ordered the children to be placed with the maternal grandparents . Vanessa was permitted to reside with them.
I n May 2 014, DFPS filed a status report recommending the suit continue and recommended a dismissal in February 2015. The trial court ordered settings for a status hearing on August 15, 2014; a permanency hearing on October 8, 2014; and a non

- jury merits hearing on November 6, 2014. The trial court also modified the temporary orders to require Vanessa to pay child support of $100 a month “to the parents.”

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- CV At the August 15, 2014 status hearing, Vanessa and the children appeared through their respective attorneys ad litem; the State also appeared through counsel. The children’s attorney moved to proceed with a progress repor t, and Vanessa’s attorney announced not ready. T he trial court proceeded over Vanessa’s objection . The children’s attorney called one witness, DFPS caseworker Jill Murray, to testif y. The following exchange occurred during Murray’s direct examination: Q. T he reason we’ re here for today is to ask the Court to name [the maternal grandparents] as the permanent managing conservators of the children?
A. Yes. Q. The parents as possessory conservators?
A. Yes. Q. And to dismiss the Department?
A. Yes. Murray further testified the parent s were “extremely uncooperative ” with DFPS, but gave no details other than that they failed to sign the service plans. She said Michael had been arrested for stealing the Jaws of Life from a fire department and Vanessa ha d posted a bail bond for his release. Murray testified the maternal grandparents were taking care of the children’s needs; the children were stable in their placement; the grandparents did everything DFPS asked them to do; the grandparents were protective of the children; and J.A.J. received survivor ship benefits from his deceased father. Murray also stated Vanessa did not pay any child support to the grandparents.
On cross

- examination, Murray testified she recommended limiting Vanessa’s visitation rights because Vanessa failed to comply with her service plan. At the conclusion of the hearing, t he trial court appointed the maternal grandparents as permanent managing conservators and the parents as possessory conservators with visitation as

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. The trial court further ordered an increase in the amount of child support Vanessa was to pay , ordered J.A.J.’s survivor benefits redirected to the maternal grandparents, and dismissed DFPS from the suit. Following the August 15, 2014 heari ng, Vanessa filed a motion for new trial and a hearing was set for September 3, 2014. No record of th at hearing was filed with this c ourt. On September
2 5 , 2014, the trial court’s oral orders were reduced to writing, signed, and filed. The trial court deni ed all other requested relief not expressly granted. Vanessa appealed.
P ARENTAL P RESUMPTION Vanessa challenges the lack of the required finding that “ appointment of the parent or parents would not be in the best interest of the child because the appointme nt would significantly impair the child[ren]’ s physical health or emotional development.” See T EX
. F AM
. C ODE A NN
. § 153.131 (a) ( West 2014)

. The State concedes the required finding is not in the final order, but it recommends we “ remand to the trial court for entry of an order that includes such a finding .” Despite the requested relief, the State contends Vanessa waived this argument and an exception to the parental presumption applied in this case. Waiver The State narrowly construes Vanessa’s argument as challenging a defect in the judgment and argues that she waived the error by failing to object and by approving the court’s order as to form. We must, however, construe a party’s brief liberally to reach t he merits of an appeal. T EX
. R. A PP
. P. 38.9; Ditta v. Conte , 298 S.W.3d 187, 190 (Tex. 2009)

. Because we imply findings necessary to support a trial court’s order appointing nonparents as sole managing conservators, Mauldin v. Clements , 428 S.W.3d 247, 26 4 (Tex. App.

— Houston [1st Dist.] 2014, no pet.) , construing Vanessa’s argument as challenging the absence of an express finding would render her argument relatively pointless. Therefore, we construe Vanessa’s issue as challenging the

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- CV sufficiency of the evi dence to rebut the parental presumption. See In re Crumbley , 404 S.W.3d 156, 162 (Tex. App.

— Texarkana 2013, no pet.) (similarly construing a challenge to the lack of a finding that the parental presumption had not been rebutted). Such issues are not waived by approving an order as to form. S ee S igma Sys. Corp. v. Elec. Data Sys. Corp. , 467 S.W.2d 675, 677 (Tex. Civ. App.

— Tyler 1971, no writ) ; see also Regan v. Lee , 879 S.W.2d 133, 136 (Tex. App.

— Houston [14th Dist.] 1994, no writ) (explaining legal sufficie ncy may be raised for first time on appeal). Discussion The Family Code provides a presumption that appointment of a parent as managing conservator is in the child’s best interest. T EX
. F AM
. C ODE A NN
. § 153.131 (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 so le managing conservator or both parents shall be appointed as joint managing conservators of the child. ” Id. The State argues the presumption was subject to section 153.004 in this case because the Department’s affidavit attached to the petition suggested a history or pattern of domestic violence. Section 153.004(b) provides, “ The 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 p arent directed against the other parent, a spouse, or a child . . . .” Id. § 153.004(b). Although the affidavit was not admitted into evidence during the hearing, the State argues the trial court could have taken judicial notice of the affidavit. We have r epeatedly held that taking judicial notice of an affidavit filed in support of a petition would be improper. See, e.g. , In re R.S.D. , — S.W.3d

— , 04

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- CV, 2014 WL 4335354, at *2 n.4 (Tex. App.

— San Antonio Sept. 3, 2014, no pet.) ; In re J.E.H. , 384 S .W.3d 864, 869

- 71 (Tex. App.

— San Antonio 2012, no pet.)

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Thus, we must determine whether the evidence rebutted section 153.131 (a) ’s parental presumption

. To rebut the parental presumption, a nonparent must “offer evidence of specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child.” Lewelling v. Lewelling , 796 S.W.2d 164, 167 (Tex. 1990). Evidence th at a nonparent would be a better custodian of the child is insufficient to rebut the parental presumption. In re S.M.D. , 329 S.W.3d 8, 16 (Tex. A pp.

— San Antonio 2010, pet. dism’ d)

. Murray’s testimony about Vanessa being “very uncooperative” with DFPS and f ailing to pay child support to the grandparents (although the order was for her to pay child support “to the parents”) was not evidence of specific acts or omissions demonstrating that awarding her conservatorship would have resulted in physical or emotion al harm to her children. Because the remainder of Murray’s testimony showed only that the grandparents were good custodians of the children, we hold the evidence was insufficient to rebut the parental presumption. Thus, we reverse the order appointing the maternal grandparents as the children’s managing conservators. See id. (concluding that evidence that nonparent would be better guardians insufficient to rebut the parental presumption). Because we can dispose of this appeal on this issue, we need not addr ess Vanessa’s remaining issues. See T EX
. R. A PP
. P. 47.1 (requiring us to “ hand down a written opinion that is as brief as practicable but that addresses every issue raised and necessary to final disposition of the appeal ”).
D ISPOSITION Although our conclusion would ordinarily require us to render judgment denying the request for nonparent conservatorship, see id. at 22, we may exercise our broad discretion to remand for a new trial in the interest of justice when there is a probability t hat a case has not been

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- CV fully developed for any reason. In re J.E.H. , 384 S.W.3d at 872 . Because the concerns raised in the Department’s affidavit were not fully heard, developed, or resolved, we reverse the trial court’s judgment and, in the interest of j ustice, remand the case for a new trial. Luz Elena D. Chapa, Justice

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