Appointment of grandmother was PMC reversed and remanded for new trial even though Father tested positive for cocaine.
A.S. v. Tex. Dep’t of Family & Protective Servs., No. 03-22-00626-CV (Tex. App.—Austin Feb. 29, 2023, no pet. h.) (mem. op.), available at https://search.txcourts.gov/SearchMedia.aspx?MediaVersionID=9589a358-0ae5-4d52-b6de-cc2a946e39a1&coa=coa03&DT=Opinion&MediaID=a0fed9cb-132a-49c0-a2a8-70ec6ee2ae3f.
Hopefully this post will be longer than posts I will write in the future about developing case law.
The parents appealed a district court’s order appointing the Maternal Grandmother as the managing conservator of the Children.
The investigation began after Mother took one of the Children to the hospital with concerns that he might have been sexually abused by an uncle. The Department then had concerns about Mother’s “instability,” Father’s drug use, and domestic violence between Mother and Father. The case appears to have been initially filed as a court-ordered services case, with the children living with Maternal Grandmother. After nine months of involvement, the Department obtained temporary custody of the Children.
The caseworker estimated that the Department asked the parents to submit to drug tests around 56 times. The caseworker believed they submitted to the tests “maybe four or five times.” Id. at 4. None of those tests occurred the year prior to trial, except that Father had submitted to a test a week prior to trial. The caseworker had not received results from that test.
Father’s last drug test, fifteen months prior to trial, was positive for cocaine. Father initially claimed that his problem was alcohol, and that he had never used illegal drugs, but admitted to one-time cocaine use on cross-examination.
Mother never tested positive for cocaine, but her last few tests were positive for marijuana. Mother admitted to marijuana use, claimed it was her “only drug,” and did not “think” she would use if the Children were in her care. Id. at 8.
Parents appear to have done some services, but not all of them. Mother did not complete couple’s therapy. Father did not complete parenting classes, individual therapy, and couple’s counseling.
The parents did not have stable housing at the beginning of the case, but did at the end. The caseworker indicated they had a “very clean” two-bedroom apartment without any visible safety hazards. Id. at 5. The caseworker was concerned about concerns of domestic violence, even though she admitted that she was aware of no police involvement during the pendency of the case.
The caseworker testified that , the children love their parents, “enjoy spending time with their parents” and “feel safe with their parents,” but they “want to be with their grandmother.” Id. at 5.
“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). A trial court is to appoint a parent a managing conservator “unless the court finds the 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.” TFC § 153.131(a). The statute “creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent.” Lewelling, 796 S.W.2d at 167. “It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child.” Id. It is important to note “[t]he material time to consider is the present, and evidence of past conduct may not, by itself, be sufficient to show present unfitness.” In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.).
Due to the fact that father used cocaine on at least one occasion during the pendency of the case, and the parents had failed to submit to multiple drug test requests during the pendency of the case, the court of appeals held that the evidence was legally sufficient to support the finding of significant impairment.
However, the evidence was factually insufficient as to Mother. She did not submit to drug tests, which the appellate court does not want to discount. However, Mother’s drug of choice appeared to be “only” marijuana. The Department failed to present evidence linking Mother’s drug use with any actual or probable harm to her children.
Likewise, while there were concerns of domestic violence, the Department presented no evidence that any domestic violence occurred at all. Mother failed to complete couple’s counseling, but the Department failed to show why the failure to complete this class significantly impaired the Children.
The court of appeals sustained Mother’s sole issue on appeal, reversed the trial court’s order appointing Maternal Grandmother as permanent managing conservator, and remanded for a new trial. Father’s issues were not addressed on appeal. Because a nonparent may not be appointed managing conservator without overcoming the presumption as to both parents, his issues are also remanded for a new trial.
Hopefully this post will be longer than posts I will write in the future about developing case law.
The parents appealed a district court’s order appointing the Maternal Grandmother as the managing conservator of the Children.
The investigation began after Mother took one of the Children to the hospital with concerns that he might have been sexually abused by an uncle. The Department then had concerns about Mother’s “instability,” Father’s drug use, and domestic violence between Mother and Father. The case appears to have been initially filed as a court-ordered services case, with the children living with Maternal Grandmother. After nine months of involvement, the Department obtained temporary custody of the Children.
The caseworker estimated that the Department asked the parents to submit to drug tests around 56 times. The caseworker believed they submitted to the tests “maybe four or five times.” Id. at 4. None of those tests occurred the year prior to trial, except that Father had submitted to a test a week prior to trial. The caseworker had not received results from that test.
Father’s last drug test, fifteen months prior to trial, was positive for cocaine. Father initially claimed that his problem was alcohol, and that he had never used illegal drugs, but admitted to one-time cocaine use on cross-examination.
Mother never tested positive for cocaine, but her last few tests were positive for marijuana. Mother admitted to marijuana use, claimed it was her “only drug,” and did not “think” she would use if the Children were in her care. Id. at 8.
Parents appear to have done some services, but not all of them. Mother did not complete couple’s therapy. Father did not complete parenting classes, individual therapy, and couple’s counseling.
The parents did not have stable housing at the beginning of the case, but did at the end. The caseworker indicated they had a “very clean” two-bedroom apartment without any visible safety hazards. Id. at 5. The caseworker was concerned about concerns of domestic violence, even though she admitted that she was aware of no police involvement during the pendency of the case.
The caseworker testified that , the children love their parents, “enjoy spending time with their parents” and “feel safe with their parents,” but they “want to be with their grandmother.” Id. at 5.
“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). A trial court is to appoint a parent a managing conservator “unless the court finds the 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.” TFC § 153.131(a). The statute “creates a strong presumption in favor of parental custody and imposes a heavy burden on a nonparent.” Lewelling, 796 S.W.2d at 167. “It is no longer adequate to offer evidence that the nonparent would be a better custodian of the child.” Id. It is important to note “[t]he material time to consider is the present, and evidence of past conduct may not, by itself, be sufficient to show present unfitness.” In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.).
Due to the fact that father used cocaine on at least one occasion during the pendency of the case, and the parents had failed to submit to multiple drug test requests during the pendency of the case, the court of appeals held that the evidence was legally sufficient to support the finding of significant impairment.
However, the evidence was factually insufficient as to Mother. She did not submit to drug tests, which the appellate court does not want to discount. However, Mother’s drug of choice appeared to be “only” marijuana. The Department failed to present evidence linking Mother’s drug use with any actual or probable harm to her children.
Likewise, while there were concerns of domestic violence, the Department presented no evidence that any domestic violence occurred at all. Mother failed to complete couple’s counseling, but the Department failed to show why the failure to complete this class significantly impaired the Children.
The court of appeals sustained Mother’s sole issue on appeal, reversed the trial court’s order appointing Maternal Grandmother as permanent managing conservator, and remanded for a new trial. Father’s issues were not addressed on appeal. Because a nonparent may not be appointed managing conservator without overcoming the presumption as to both parents, his issues are also remanded for a new trial.
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