law-parental presumption, natural parent preference | SAPCR child custody and visitation caselaw |
modification of prior SAPCR order in divorce decree or separately | termination of parental rights cases
THE PARENTAL PRESUMPTION (in favor of natural parents of child)
A strong presumption exists that a child’s best interests are served by maintaining the parent-child
relationship. In re L.M., 104 S.W.3d 642, 647 (Tex. App.—Houston [1st Dist.] 2003, no pet.). The
same evidence of acts or omissions used to establish grounds for termination under section 161.001
(1) may be probative in determining the best interests of the child. Id. (citing C.H., 89 S.W.3d at 28).
The Texas Supreme Court has provided a nonexclusive list of factors that the fact finder in a
termination case may use to determine the best interest of the child. Holley v. Adams, 544 S.W.2d
367, 371–72 (Tex. 1976). These factors include (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 individuals seeking custody; (5) the programs
available to assist these individuals to promote the best interest of the child; (6) the plans for the child
by these individuals or by the agency seeking custody; (7) the stability of the home or proposed
placement; (8) the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Id. These
factors are not exhaustive, and there is no requirement that the Department prove all factors as a
condition precedent to parental termination. C.H., 89 S.W.3d at 27; Walker v. Tex. Dep’t of Family &
Protective Servs., 312 S.W.3d 608, 618–19 (Tex. App.—Houston [1st Dist.] 2009, pet. denied).
The termination of parental rights and the appointment of a non-parent as sole managing
conservator are two distinct issues, requiring different elements, different standards of proof,
and different standards of review. Compare TEX. FAM. CODE ANN. § 161.001 with TEX.
FAM. CODE ANN. § 153.131(a) (West 2008); See also Earvin v. Dep't. of Family &
Protective Servs., 229 S.W.3d 345, 351 (Tex. App.—Houston [1st Dist.] 2007, no pet.); In re J.
A.J., 243 S.W.3d 611, 615–17 (Tex. 2007); In re J.F.C., 96 S.W.3d 256, 266 (Tex. 2002). A
rebuttable presumption exists that it is in a child’s best interest for his parents to be named his
joint managing conservators. TEX. FAM. CODE ANN. § 153.131(b) (West 2008). In order to
rebut this presumption and appoint someone other than a parent as sole managing
conservator of the child, a court must find that appointment of a parent would “significantly
impair the child's physical health or emotional development.” TEX. FAM. CODE ANN. §
153.131(a) (West 2008); In re J.A.J., 243 S.W.3d at 616. Additionally, “[t]he best interest of
the child shall always be the primary consideration of the court in determining the issues of
conservatorship[.]” TEX. FAM. CODE ANN. § 153.002 (West 2008).
Unlike the standard of proof for termination of parental rights, the findings necessary to appoint
a non-parent as sole managing conservator need only be established by a preponderance of
the evidence. TEX. FAM. CODE ANN. § 105.005 (West 2008); In re J.A.J., 243 S.W.3d at
616. Likewise, the standard of review for the appointment of a non-parent as sole managing
conservator is less stringent than the standard of review for termination of parental rights. In re
J.A.J., 243 S.W.3d at 616. We review a trial court’s appointment of a non-parent as sole
managing conservator for abuse of discretion only. Id. (citing Gillespie v. Gillespie, 644 S.W.
2d 449, 451 (Tex. 1982)). Therefore, we reverse the trial court’s appointment of a non-parent
as sole managing conservator only if we determine that it is arbitrary or unreasonable. Id.
“Because different standards apply, evidentiary review that results in reversal of a termination
order may not yield the same result for a conservatorship appointment.” Id.
HOUSTON CASE EXCERPTS
In Interest of JSG, NO. 14-08-00754-CV (Tex.App.- Houston May 7, 2009)(Hedges)
(termination of parental rights, best interest factors, parental presumption)
In her fourth issue, appellant contends that the evidence is legally and factually insufficient to rebut the
parental presumption under section 153.131. The parental presumption provides:
. . . 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. Tex. Fam. Code §153.131(a).
A challenge to a trial court’s finding under section 153.131(a) is an issue of conservatorship. See id.
The quantum of proof required to support a termination decision differs from the level necessary to
support a conservatorship appointment. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). Termination
findings must be supported by clear and convincing evidence, while “a finding that appointment 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 standard.” Id.; Lewelling v. Lewelling,
796 S.W.2d 164, 167 (Tex. 1990). These differing proof standards, in turn, affect the method of
appellate review, which is less stringent for conservatorship findings than for those regarding
termination. In re J.A.J., 243 S.W.3d at 616. Unlike termination findings, conservatorship
determinations are subject to review only for abuse of discretion, and may be reversed only if the
decision is arbitrary and unreasonable. Id.; Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
We must “indulge every legal presumption in favor of the judgment” and view the evidence presented
to the district court “in the light most favorable to” its actions. Powell v. Swanson, 893 S.W.2d 161, 163
(Tex. App.- Houston [1st Dist.] 1995, no writ). Provided that there is some evidence Aof a substantive
and probative character” supporting the decision reached by the district court, then the district court
did not abuse its discretion. Id.; see also Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex. App.- Austin
1997, no pet.) (explaining that under an abuse of discretion standard, factual and legal sufficiency are
not independent grounds of error, Abut are relevant factors in assessing whether the trial court
abused its discretion”).
The presumption that the best interest of the child is served by awarding custody to the natural parent
is deeply embedded in Texas law. See In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Lewelling, 796 S.
W.2d at 166. The burden of proof is upon the non-parent, and there must be evidence to support the
logical inference that some specific, identifiable behavior or conduct of the parent will probably cause
harm. Lewelling, 796 S.W.2d at 167; In re C.A.M.M., 243 S.W.3d 211, 215 (Tex. App.- Houston [14th
Dist.] 2007, pet. denied); Whitworth, 222 S.W.3d at 623. Acts or omissions that constitute significant
impairment include, but are not limited to, physical abuse, severe neglect, abandonment, drug and
alcohol abuse, or immoral behavior on the part of the parent. See In re De La Pena, 999 S.W.2d 521,
528 (Tex. App.-El Paso 1999, no pet.).
In Interest of JSG, NO. 14-08-00754-CV (Tex.App.- Houston May 7, 2009)(Hedges)
(termination of parental rights, best interest factors, parental presumption)
Here, appellant contends that the Department failed to prove by a preponderance of the evidence that
appointing appellant as managing conservator would significantly impair the children physically or
emotionally. To the contrary, the record is replete with evidence that appointing appellant as
managing conservator would significantly impair the children’s physical or emotional development.
There is evidence that appellant medically neglected her oldest child, thereby hastening his death.
See Whitworth, 222 S.W.3d at 623 (reasoning that “an adult’s future conduct may be somewhat
determined by recent past conduct”). Appellant tested positive for prescription drugs, and there was
evidence that she and other occupants of the home used illegal drugs. Appellant was unable to
provide a suitable living environment for the children and allowed the children to reside with an
individual who had been placed on probation for a sexual offense against an 11-year-old child.
Appellant was also unable to maintain stable employment.
An abuse of discretion does not occur so long as some evidence of substantive and probative
character exists to support the trial court’s parental presumption finding. Id. There is sufficient
evidence to support the trial court’s finding that appointing appellant as managing conservator would
significantly impair the children’s physical health or emotional development. We therefore overrule
appellant’s fourth issue.
Having concluded that the evidence is sufficient to support the trial court’s termination findings under
section 161.001(1) and to rebut the parental presumption under section 153.131, we affirm the trial
court’s decree terminating appellant’s parental rights to J.S.G. and J.A.G.
In Interest of JSG, NO. 14-08-00754-CV (Tex.App.- Houston May 7, 2009)(Hedges)
(termination of parental rights, best interest factors, parental presumption)
Grandparent Properly Awarded Custody Despite Presumption in Favor of Natural Parents
Whitworth v. Whitworth (Tex.App.- Houston [1st Dist.] Mar. 16, 2007)(Hanks)(subst. opinion on
rehearing) [family law, SAPCR, SMC, grandparents, standing to intervene] "Based on our review of the
evidence, we conclude that the trial court did not abuse its discretion in appointing Carol as the sole
managing conservator after finding, by a preponderance of credible evidence, that appointing Tammy
as a managing conservator would result in serious physical or emotional harm to K.C. See Brook, 881
S.W.2d at 298. We also hold that the trial court did not abuse its discretion in awarding Tammy less
than standard possession."
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GRANDPARENTS RIGHTS TEXAS BLOG: The Parental Presumption Doctrine