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Click here for the full text of this decision FACTS:C.A.M.M. (Camille) was born in 1993. Tammy and Mark, her parents, were never married, but in 1994, Tammy filed an Original Petition to Establish Paternity. On Nov. 8, 1996, the trial court entered an “Order on Motion to Modify in Suit Affecting the Parent-Child Relationship.” In that order, the trial court appointed Tammy sole managing conservator with the right to designate Camille’s primary residence and appointed Mark possessory conservator with a standard possession order. Tammy and Camille lived with Tammy’s mother and stepfather (collectively, the grandparents), essentially from the time of Camille’s birth. Mark was involved in Camille’s life since her birth and took an even more active parenting role after Tammy began to have serious health problems when Camille was about 9 years old. Tammy died at home on Feb. 17, 2005, while awaiting a heart transplant; Camille was home alone with Tammy when she died. Mark was immediately notified, and he took Camille home with him for a few days. Mark returned Camille to the grandparents’ home when Camille resumed school. In March 2005, the grandparents filed a Petition to Modify the Parent-Child Relationship, accompanied by Camille’s signed statement that she preferred her grandparents to determine her primary residence. The grandparents later amended their petition, and their live pleading at the time of trial was entitled “First Amended Petition to Modify the Parent-Child Relationship and in the Alternative Petition in Suit Affecting the Parent-Child Relationship and in the Alternative Suit for Grandparent Access.” The parties entered into an agreed interim order requiring Camille to reside with the grandparents until June 1, 2005, and continuing Mark’s standard possession on the first, third and fifth weekends. The parties also agreed that Mark would have additional visitation on Tuesdays and Thursdays after school until the next morning so he could assist Camille with her schoolwork. The interim order granted Mark possession of Camille beginning June 1, 2005, and granted the grandparents possession on the second and fourth weekends and every Wednesday overnight. At the end of the school year, Camille began residing with Mark under the temporary order, but on July 25, 2005, the grandparents sought to modify the agreed interim order. After a hearing before an associate judge, the judge appointed Mark and both grandparents as temporary joint managing conservators, and Camille returned to the grandparents’ residence. The judge gave Mark a standard possession order, as well as additional visitation on Tuesdays and Thursdays from the end of Camille’s school day until 8 p.m. After conducting a nonjury trial and interviewing Camille in chambers, the trial court appointed Mark and the grandparents joint managing conservators. The trial court awarded the grandparents the right to designate Camille’s primary residence, gave Mark visitation under a standard possession order and ordered him to pay child support. In its conclusions of law, the trial court explicitly stated it was modifying the prior order of Nov. 8, 1996. Mark filed a motion for new trial on Jan. 11, 2006, and argued, inter alia, that the trial court’s rulings were not supported by a finding that he was an unfit parent. At the hearing on this motion, the trial court then reformed its order, adding a finding that Mark’s appointment as Camille’s sole managing conservator would significantly impair her physical health and emotional development. The trial court also required Mark’s visitation to be supervised by an adult approved by the grandmother. Mark appealed. HOLDING:Affirmed as modified. In four issues, Mark challenged the trial court’s findings and reformed order, contending that the trial court: 1. improperly categorized the suit as a modification suit rather than an original proceeding, thus avoiding the parental presumption statute; 2. unconstitutionally applied the modification statutes; 3. abused its discretion by appointing the grandparents as joint managing conservators rather than appointing Mark as the sole managing conservator; and 4. improperly reformed its order to limit Mark to supervised visitation. Under Texas Family Code �153.131(a), in an original proceeding, “evidence that the non-parent would be a better custodian” is insufficient to support the appointment of a nonparent as managing conservator in preference to a parent. Rather, the nonparent is required to “affirmatively prove by a preponderance of the evidence that appointment of the parent as managing conservator would significantly impair the child, either physically or emotionally.” But in a modification proceeding, the court stated, a nonparent is not required to prove that a parental appointment would significantly impair the child. Thus, in a suit for modification, the trial court does not presume that appointment of the surviving parent as sole managing conservator is in the child’s best interest. According to the parties, the parents agreed that Tammy would be appointed sole managing conservator and Mark would be the possessory conservator under a standard possession order. But because the trial court was authorized by statute to treat the action as a suit for modification to which the parental presumption does not apply, the court concluded that the trial court did not abuse its discretion by doing so. Mark then argued that because the parental presumption did not apply to modifications, the trial court thus deprived of his due process rights. But the court found that Mark did not meet his burden in showing that a constitutional violation occurred. After determining that the parental presumption did not apply in a modification proceeding, the court reframed Mark’s abuse of discretion issue as one challenging the sufficiency of the evidence to meet the statutory requirements for modification. The record, the court stated, supported the trial court’s determination that the modification was in Camille’s best interest. The court, however, agreed with Mark’s assertion that the trial court erred by reforming its order to require his visitation with Camille be supervised by a person approved by the grandmother. Such a finding is not required to modify a conservatorship order. Such a finding, the court stated, must be supported by sufficient evidence to overcome the statutory presumption in favor of a standard possession order. OPINION:Guzman, J.; Frost and Seymore, JJ CONCURRENCE:Frost, J. “Under the Texas Family Code, a trial court is authorized to deprive a fit parent of the exclusive right to parent his own child and instead place fundamental parental rights in the hands of non-parents, to the exclusion of the fit parent. Though the result the court reaches today is correct under existing law, this case raises serious questions about the fundamental rights of fit parents to make decisions concerning the care, custody, and control of their own children. . . . Whether or not our lawmakers actually envisioned such a result when they enacted the relevant statutes, this court must enforce the unambiguous statutory language as written.”

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