Date: 08-21-2014

Case Style: Crystal Ann Harris v. Virginia Vanegas

Case Number: 05-13-01059-CV

Judge: Kerry P. Fitzgerald

Court: Texas Court of Appeals, Fifth District on appeal from the 254th Judicial District Court of Dallas County

Plaintiff's Attorney: Jason Richerson for Crystal Ann Harris

Defendant's Attorney: Alison Colleen Lebeck and Christie Phan for Virginia Vanegas

Description: The trial court appointed Virgina Vanegas (“Grandmother”) sole managing conservator
of D.L. and C.V. (together, “Children”) and appointed Crystal Harris (“Mother”) possessory
conservator. In a single issue, Mother asserts the trial court erred in awarding managing
conservatorship to Grandmother. We affirm the trial court’s judgment.
BACKGROUND
The Children, born in 2000 and 2001, have resided with Grandmother since birth.
Grandmother’s son, the father of the Children, has been incarcerated since 2008. Although father
and Mother lived with Grandmother many years ago, both moved out and voluntarily
surrendered possession of the Children to Grandmother.
In 2008, pursuant to a Child Protective Services (“CPS”) investigation, Mother signed an
affidavit of relinquishment placing the Children in the care of Grandmother. Mother revoked the
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affidavit in 2011. The revocation prompted Grandmother’s filing of the petition seeking a court
order awarding her managing conservatorship of the Children.
The trial court concluded Grandmother had standing to bring suit under the family code.
The trial court signed temporary orders appointing Grandmother temporary sole managing
conservator. Mother was also ordered to pay monthly child support to Grandmother in the
amount of $222 per month. Mother failed to make any of the payments as ordered. The case was
tried to the bench, and the court awarded managing conservatorship to Grandmother and
possessory conservatorship to Mother. The court also awarded judgment for past due child
support to Grandmother in the amount of $3,330, and ordered that Mother make monthly child
support payments in the amount of $210.
DISCUSSION
Standing
In the first part of her sole issue, Mother argues the trial court erred in determining
Grandmother had standing to bring this action. We disagree.
Standing is implicit in the concept of subject-matter jurisdiction, and it is a threshold
issue in a child custody proceeding.1 Whether a party has standing to pursue a cause of action is a
question of law that we review de novo.2 When, as here, the trial court does not make separate
findings of fact and conclusions of law, we imply the findings necessary to support the
judgment.3 When standing to bring a particular type of lawsuit has been conferred by statute, we
use that statutory framework to analyze whether the petition has been filed by a proper party.4
1 See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993); In re SSJ–J, 153 S.W.3d 132, 134 (Tex. App.—San
Antonio 2004, no pet.).
2 In re SSJ–J, 153 S.W.3d at 134.
3 In re S.M.D., 329 S.W.3d 8, 13 (Tex. App.—San Antonio 2010, pet. dism’d) (citing Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990)).
4 See Atty. Gen. of Tex. v. Crawford, 322 S.W.3d 858, 862 (Tex. App.—Houston [1st Dist.] 2010, pet. denied); In re N.L.D., 344 S.W.3d
33, 37 (Tex. App.—Texarkana 2011, no pet.).
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The family code identifies those who have standing to file an original suit, and includes persons
who have had possession for at least six months and a person designated as managing
conservator in an affidavit of relinquishment.5 Specifically, the statute provides:
(a) An original suit may be filed at any time by . . .
(9) a person, other than a foster parent, who has had actual care, control,
and possession of the child for at least six months ending not more than 90
days preceding the date of the filing of the petition . . .
(10) a person designated as the managing conservator in a revoked or
unrevoked affidavit of relinquishment . . . .6
The record reflects that Grandmother has had actual care, control and possession of the
Children for the entirety of their lives. Although the Children occasionally visit Mother, the
Children reside with Grandmother, and Grandmother is and always has been responsible for
providing their care.
Mother’s affidavit of relinquishment, dated April 1, 2008, was admitted into evidence at
trial. The affidavit reflects that Grandmother has the right to possession of the Children, to direct
their moral and religious training, and to designate their residence. Grandmother is also charged
with the duty of care, control, discipline, and protection, has the right to consent to dental and
medical care, and the right to access state and federal social services for the Children. The
affidavit further grants Grandmother the right to make educational decisions and to enroll the
Children in day care. These are duties of a managing conservator.7 Therefore, the record reflects
that Grandmother has had actual care, control, and possession of the Children for the statutorily
prescribed period of time and Grandmother was named the managing conservator in the affidavit
5 TEX. FAM. CODE ANN. §102.003(a) (9),(10) (West 2014).
6 Id.
7 TEX. FAM. CODE ANN. §102.003(a) (9),(10) (West 2014).
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of relinquishment. Consequently, the trial court did not err in concluding that Grandmother has
standing to bring suit.8 The first part of Mother’s issue is overruled.
In the remaining portion of her sole issue, Mother argues the trial court erred by
appointing Grandmother managing conservator. Mother contends there was no evidence or
insufficient evidence to rebut the presumption in favor of parental conservatorship set forth in the
family code.9
We review a trial court’s determination of conservatorship for an abuse of discretion.10
Under the abuse of discretion standard, a challenge to the legal and factual sufficiency of the
evidence is not an independent ground of error, but is merely a factor in assessing whether the
trial court abused its discretion.11 In determining a legal insufficiency issue, we are to consider
only the evidence and inferences that tend to support the finding and disregard all evidence and
inferences to the contrary.12 Anything more than a scintilla of evidence is legally sufficient to
support the finding.13 More than a scintilla of evidence exists if the evidence furnishes some
reasonable basis for differing conclusions by reasonable minds about the existence of a vital
fact.14 To determine whether the evidence is factually insufficient, we must consider, weigh, and
examine all of the evidence that supports or contradicts the fact-finder’s determination.15 We may
set aside a judgment only if the evidence supporting it is so contrary to the overwhelming weight
8 Id.
9 See TEX. FAM. CODE ANN. § 153.131 (Tex. 2014).
10 Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)
11 See Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991).
12 Bradford v. Vento, 48 S.W.3d 749, 754 (Tex. 2001).
13 Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996).
14 Rocor Int’l, Inc. v. Nat’l Union Fire Ins. Co. of Pittsburgh, PA, 77 S.W.3d 253, 262 (Tex. 2002).
15 See Mauldin v. Clements, 428 S.W.3d 247, 268 (Tex. App.—Houston [1st Dist.] 2014, no pet.).
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of the evidence as to be clearly wrong or manifestly unjust.16 When conducting a factual
sufficiency review, we do not substitute our judgment for that of the fact-finder.17 The fact-finder
is the sole judge of the credibility of the witnesses and the weight to be given their testimony.18
Thus, in addressing the overlapping abuse of discretion/sufficiency standards of review, we first
determine whether the trial court had sufficient information to exercise its discretion, then we
determine whether the court abused its discretion.19
If a non-parent and a parent are both seeking managing conservatorship of a child, the
family code prohibits a court from appointing the non-parent “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.”20
This creates a presumption in favor of parental custody.21
This parental presumption, however, can be rebutted upon a showing that the parent
voluntarily surrendered possession of the child. To this end, the family code provides:
The presumption that a parent should be appointed or retained as
managing conservator of the child is rebutted if the court finds that:
(1) the parent has voluntarily relinquished actual care, control, and
possession of the child to a non-parent . . . for a period of a year or more, a
portion of which was within 90 days preceding the date of the intervention
in or filing of the suit; and
16 Id.
17 Id.
18 Id.
19 See Chavez v. Chavez, 148 S.W.3d 449, 456 (Tex. App.—El Paso 2004, no pet.).
20 TEX. FAM. CODE ANN. § 153.131.
21 See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).
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(2) the appointment of the nonparent or agency as managing conservator is
in the best interest of the child.22
The parental presumption was rebutted here. Exhibit 2, the affidavit of relinquishment,
shows that Mother voluntarily relinquished control of the Children to Grandmother in 2008. The
record reflects that Children have resided with Grandmother since that time. The trial court’s
finding that awarding Grandmother managing conservatorship is in the best interest of the
Children is implied.23 The best interest of the child is always the primary consideration in
determining issues of conservatorship, access, and possession.24 Because the trial court is in a
position to analyze the facts with regard to issues of conservatorship, control, possession, child
support, and visitation, the trial court is given “wide latitude in determining the best interests of a
minor child.”25
In determining the best interest of a child, courts consider the following non-exhaustive
factors: (1) the desires of the child; (2) the emotional and physical needs of the child now and in
the future; (3) the emotional and physical danger to the child now and in the future; (4) the
parental abilities of the individual seeking custody; (5) the programs available to assist the
individual to promote the best interest of the child; (6) the plans for the child by the individual or
by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts
or omissions of the parent, or potential conservator, that may indicate that the existing
relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent or
potential conservator.26
22 TEX. FAM. CODE ANN. § 153.373 (West 2014).
23 See S.M.D., 329 S.W.3d at 13 (court implies findings in support of judgment).
24 TEX. FAM. CODE ANN. §153.002 (West 2014).
25 Stallworth v. Stallworth, 201 S.W.3d 338, 347 (Tex. App.—Dallas 2006, no pet.).
26 Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).
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Grandmother stated that she has raised and cared for the Children since birth, and that
Mother has been in and out of jail. Grandmother is concerned that Mother has no job and offers
no stability or supervision of the Children. According to Grandmother, the Children complain
that Mother yells and curses at them, and have expressed a desire to continue to reside with
Grandmother. Mother is residing with a boyfriend in San Antonio, and Grandmother and the
Children reside in Dallas. The man with whom Mother resides has a prior conviction for family
violence. Grandmother expressed concern to Mother that she was allowing the boyfriend to
discipline the Children when they visited.
Grandmother testified that Mother resided at her home on and off throughout the years.
Mother moved out in 2001, four months after the first of the Children at issue here was born.
Mother returned again for a short period and then left again in 2005. Mother has been in and out
of several relationships. At one point when Mother left Grandmother’s home, Mother got
married. She is no longer married to that man, but instead resides with a boyfriend in San
Antonio. Mother has had seven children with four fathers. Grandmother testified without
objection that Mother has had her rights terminated as to other children. She did not specify
which ones or how many.
Mother signed the affidavit of relinquishment through (“CPS”) after she had her fourth
child. Although the details were not developed at trial, the affidavit of relinquishment resulted
from a CPS investigation involving the Children in which CPS wanted to terminate Mother’s
parental rights. Mother was not following CPS directives and would not communicate with them.
CPS could not get Mother to follow through on classes or do anything. Although the affidavit
relinquished possession of three children, in 2010, Grandmother contacted CPS to let them know
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that Mother wanted one child back. At that time, Mother did not say that she wanted the Children
at issue here.
Grandmother filed this suit in 2011 when Mother revoked the affidavit as to the two
Children that are the subject of this case. Grandmother was concerned about the Children going
to live with Mother because of “the history of drug abuse,” and her concerns about Mother’s
boyfriend and the discipline of the Children. Grandmother testified that the Children are in
school in Dallas and are performing well. Because Mother lives in San Antonio, Grandmother is
concerned that she will never get to see the Children if they are sent to live with Mother in San
Antonio. Grandmother also testified about an incident where Mother was confused about when
the court orders indicated Children were supposed to be returned to Grandmother after a visit.
Mother sent Grandmother a text saying the Children would not be returned for a few days until
after they were due. Grandmother filed a police report, and ultimately incurred a car rental
expense and a day off from work to travel to San Antonio to retrieve the Children herself.
Grandmother testified that in 2011, Mother tested positive for drugs, and she has tested
positive for drugs before. The record includes a court-ordered drug test, and a report showing a
positive result.
Grandmother has the Children involved in sports and scouting. Last year, she enrolled
them in dance classes. She keeps their schedules very busy, and she communicates with them
about the dangers of becoming involved with drugs. One summer, when the Children visited
Mother, Grandmother sent a packet of homework that was to be completed. When the Children
returned, the packet was unopened. Since Mother became a part of the Children’s lives again in
2009, Grandmother has observed behavior changes in the Children. Grandmother expressed
concern that sending the Children to live with Mother for the first time in their lives would be
emotionally disruptive to the Children.
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Kim Lumpkin, a friend of Grandmother’s, testified that she has known Grandmother for
about seven years. One of the Children plays with her son, and the child is happy, wellmannered,
cared for, and well-adjusted. Lumpkin does not believe it would be in the best interest
of the Children to go live with Mother because the home in Dallas with Grandmother is the only
home they have ever known, and Mother has been in and out of their lives. Lumpkin has never
seen Mother at any of the Children’s school functions.
Grandmother’s daughter’s best friend, Theresa Barrera, also testified. Barrera has spent
considerable time with the family. Grandmother is a good parent, and Barrera does not believe it
would be in the Children’s best interest to live with Mother. The Children have friends and a
community that has embraced them in their current location with Grandmother. The Children are
happy, well-fed, properly clothed, well-adjusted, and receiving appropriate care from
Grandmother.
The Children’s aunt, a police officer with the Dallas Police Department, also testified that
Grandmother is a good mother to the Children. Grandmother makes sure the Children have
appropriate discipline. The Children are doing well in school and are involved in numerous
activities. They are happy, and their health is properly cared for. One child has asthma, which is
under control. But Mother’s boyfriend is a smoker, and the aunt does not believe it would be in
the Children’s best interest to live with a smoker. The aunt believes that Mother is involved with
drugs. She described a text message she once received from Mother in which Mother was asking
for drugs. When the aunt returned the text and inquired if Mother realized she was asking for
drugs, Mother replied that she let someone use her phone and had not intended to text the aunt.
The aunt is also raising one of Mother’s biological children. Mother placed the child with aunt
when the child was three months old. The aunt testified that it would not be in the Children’s
best interest to go live with Mother. The Children have been in Dallas their entire life, and are
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happy and doing well in school. Moving them to San Antonio would be a huge disruption. The
aunt also worries that Mother is still involved with narcotics, and she is concerned about the
Children being in “that type of environment.”
Mother testified that she has had trouble with drugs in her past and is still undergoing
drug counseling twice a week. She acknowledged that she has made a lot of mistakes and bad
choices. Mother currently has three children living in her home, and has taken two parenting
classes. Mother said that she loves her children. She is in the process of getting a divorce. Mother
acknowledged that she has not paid any of the court-ordered child support because “they don’t
need it.” Mother stated that she wants what is best for her children, but she offered no
explanation as to why she believes their interest is best served by moving from Dallas to live
with her in San Antonio. Mother did not state that she is no longer using drugs, nor was there any
testimony or evidence that she is employed. There was also no testimony concerning any plans
for feeding, clothing, or educating the Children, or attending to their physical and emotional
well-being.

Outcome: The record reflects that there is sufficient evidence to support the trial court’s conclusion
that the best interest of the Children would be served by remaining with Grandmother. Therefore,
we conclude the trial court did not abuse its discretion by appointing Grandmother managing
conservator. Mother’s issue is overruled. The trial court’s judgment is affirmed.

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