Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-14-00684-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-PA-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 hearing. 

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 best-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 children, we refer to the parents and children by their initials. See TEX. FAM.

CODE ANN. § 109.002(d) (West 2011); TEX. R. APP. P. 9.8.

 
04-14-00684-CV

BACKGROUND

In March 2014, the Department of Family and Protective Services (DFPS) filed a petition 

for protection of a child, for conservatorship, and for termination in a suit affecting the parentchild 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 requested 

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 children 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. 

The 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. 

In May 2014, 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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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 report, and Vanessa’s attorney announced not ready. The trial 

court proceeded over Vanessa’s objection. The children’s attorney called one witness, DFPS 

caseworker Jill Murray, to testify. The following exchange occurred during Murray’s direct 

examination:

Q. The 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 parents 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 had 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 survivorship 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, the trial court appointed the maternal grandparents as 

permanent managing conservators and the parents as possessory conservators with visitation as 

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agreed to by the grandparents. 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 hearing, Vanessa filed a motion for new trial and a hearing 

was set for September 3, 2014. No record of that hearing was filed with this court. On September 

25, 2014, the trial court’s oral orders were reduced to writing, signed, and filed. The trial court 

denied all other requested relief not expressly granted. Vanessa appealed.

PARENTAL PRESUMPTION

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 appointment would significantly 

impair the child[ren]’s physical health or emotional development.” See TEX. FAM. CODE ANN. 

§ 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 the merits of an appeal. TEX.

R. APP. 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, 264 (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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sufficiency of the evidence 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. See Sigma 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 sufficiency 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. TEX. FAM. CODE ANN. § 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 sole 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 parent 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 repeatedly 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 —, 04-13-00665-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 that 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. App.—San Antonio 2010, pet. 

dism’d).

Murray’s testimony about Vanessa being “very uncooperative” with DFPS and failing 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 emotional 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 address 

Vanessa’s remaining issues. See TEX.R. APP. 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”).

DISPOSITION

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 that a case has not been 

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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 justice, remand the case for a new trial. 

Luz Elena D. Chapa, Justice

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