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Click here for the full text of this decision FACTS:Liliana Chavez was a 15 year old Mexican citizen when she married Gilberto Chavez, who was 26, in April 1999. The couple had one baby before they were married and one afterwards. The couple separated two years later. Liliana moved into a battered women’s shelter with the children. Child Protective Services investigated Liliana’s relationship with the children, at Gilberto’s urging, but found no evidence of neglect or abuse. In December 2001, Liliana’s sister took the children to Gilberto, who was staying with his parents. Gilberto filed another complaint with CPS that same day, alleging that Liliana was using drugs. The case worker assigned to the case gave both Liliana and Gilberto a drug test, and both failed, testing positive for cocaine. The drug assessment revealed that Liliana was a recreational user, while Gilberto was a chemical dependency. The children stayed with Gilberto at his parents’, and all three actively prevented Liliana from seeing the children. When Liliana finally filed a divorce petition, she sought managing conservatorship of the children. After a temporary hearing in April 2002, the trial court determined that the children should remain temporarily with the grandparents. Gilberto and Liliana were named temporary managing conservators and both were granted supervised visitation. The order was amended to allow Liliana to have unsupervised visits, but Gilberto was still required to have a parenting caseworker present. Gilberto was ordered to move out of his parents’ house, and he was enjoined from returning there except for supervised visitation with the children. Both were also ordered to undergo random drug tests. Liliana passed all of her tests, but Gilberto failed six of his tests over four months. He also tried to falsify his urine test at one point. Upon Gilberto’s motion, the Sept. 10, 2002, trial on the divorce petition was continued to Sept. 18. On Sept. 9, Gilberto’s parents filed a petition in intervention, seeking conservatorship of the children. They claimed that Liliana and Gilberto had voluntarily relinquished possession and control of the children for one year or more, which included the 90 days prior to the grandparents’ filing. The trial court granted the intervention. The trial court did not rule on custody at the Sept. 18 trial. A custody hearing was not held until March 2003. At the hearing, an employee from El Paso Human Services testified that Liliana and Gilberto had been to individual therapy for four months, ending in December 2002. From that therapy, the employee said she would recommend that Liliana be granted custody, in part because the grandparents had allowed Gilberto to have unsupervised visits, while thwarting Liliana’s scheduled visits. Another human services employee testified that she’d given Liliana and Gilberto parenting instructions. She thought that Liliana had done well, and that the children were responding well towards here, despite the grandparents’ efforts to denigrate Liliana and her relationship with the children. It was this employee’s belief that if the grandparents got custody, the children would have minimal contact with Liliana. A case worker from the Department of Protective and Regulatory Services testified that the grandparents allowed Gilberto to have unsupervised visits, despite the fact that he had tested positive for cocaine. The worker said he thought the grandparents despised Liliana and that it was not in the children’s best interest to stay with the grandparents. The same worker noted that he did not think the trailer Liliana was currently staying in was a suitable place for the children, but he also said he felt it was a temporary arrangement caused by Liliana’s forced exit from a residential living center when a former boyfriend arrived uninvited. He added that Liliana was not eligible for a particular housing situation because she was not a citizen. The trial court granted custody of the two children to the grandparents. Liliana and Gilberto were named possessory conservators. Of the minimal findings of fact and conclusions of law entered by the court, the primary reasons given were that Liliana was unable to provide a stable home environment for the children, and that it was in the best interest of the children to be at the grandparents house, where they have been the whole time and where they were thriving. Liliana appeals the decision. HOLDING:Reversed and remanded. The court first notes that, “[d]espite the importance of the issues raised, neither Gilberto nor the grandparents have favored us with a brief.” The court then confirms that the grandparents had standing to file their intervention petition. Family Code 102.003(a)(9) gives standing to a person who has had actual, care, control and possession of the children for at least six months ending not more than 90 days preceding the date the petition is filed. Also, Family Code 102.004(b) specifically gives grandparents who have substantial past contact with a child the right to file a suit affecting the parent child relationship. In light of the substantial past contact in this case, the court says the trial court did not abuse its discretion by allowing the grandparents to intervene. The court then turns to the sufficiency of the evidence underlying the trial court’s decision. Though there is a presumption that a parent must be appointed managing conservator, the court notes that the presumption can be rebutted in two ways: 1. where the parent has voluntarily relinquished actual care, control and possession of the child to a non-parent for one year or more, a portion of which is within the 90 days preceding the date the petition to intervene was filed; and 2. the appointment of the non-parent as managing conservator is in the best interest of the child. Additionally, for the court to award managing conservatorship to a non-parent under Family Code 153.131, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. A “close call,” the court notes, should go to the parent. Though a parent’s past conduct, acts and omissions may be considered, the court also points out that it is the specific facts of a case that matter. Turning to the facts of this case, the court states that, while the grandparents stated in their pleading that it would be in the children’s’ best interest for them to be named managing conservators, the did not plead that appointing Liliana as managing conservator would not be in the children’s best interest. Nor did the court make a finding that appointing Liliana would not be in their best interest due to the risk of significant impairment of the children’s physical health or emotional development. The court finds the trial court did not make findings on Liliana’s supposed relinquishment of the children, though Liliana did not request any. The court thus says the findings are deemed on appeal. In other words, if a party secures an express finding on at least one element of an affirmative defense, then deemed findings arise as to the balance of the elements. The court finds “not one shred of evidence none” that Liliana voluntarily gave up possession of her children. Her sister removed the children from her, then Gilberto and the grandparents prevented her from seeing them, plus, Liliana could not have seen them in any other circumstance without running afoul of the trial court’s temporary orders concerning drug testing and supervised visits. Though in cases like the judgment is usually reversed and rendered, the court instead remands, finding that a new assessment is necessary to balance the “safety and protection of the children with the immaturity and naivete of an immigrant teenage mother.” OPINION:McClure, J.; Larsen, McClure and Chew, JJ.

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