V.M. (Father) appeals from the trial court’s order appointing paternal grandmother (Grandmother) as the sole managing conservator of Father’s son, who was eight years old at the start of trial (Son).[1] The trial court did not appoint Father as either managing or possessory conservator.[2] See Tex. Fam. Code §§ 153.131(a) (presumption favoring appointing parent as managing conservator), .191 (presumption favoring appointing parent as possessory conservator). In his sole issue on appeal, Father argues that the trial court abused its discretion by declining to appoint him either as the managing or possessory conservator of Son. For the following reasons, we affirm the trial court’s order. BACKGROUND On November 29, 2021, the Department of Family and Protective Services (Department) received an intake alleging neglectful supervision of Son by Father. As described in the removal affidavit, Father was not taking his psychiatric medication and was experiencing a psychotic break. Grandmother told the investigator that Son had lived with her “off and on” since Son was born, that Son had lived with her “for the majority of [his] life,” and that Father had threatened to kill her and other family members. Grandmother expressed concern that Son would be in a dangerous situation if he were to live with Father because of Father’s mental health and drug use. Grandmother also told the investigator that Father had a previous case with the Department “due to [Father] punching [Son] in the mouth.” During the investigation, Son expressed that he was afraid of Father because Father was “acting crazy and threatening people.” The investigator also interviewed Father, who was held in jail after being arrested for terroristic threat and possession of K2[3] the day after the Department received the intake. Father denied that he was violent or threatened violence on Grandmother. The interviewer noted, however, that during the interview Father “continued to act delusional, not in touch with reality” and described Father as appearing “frustrated and having a mental health crisis.” The Department investigator concluded that Father was an immediate danger to the physical health and safety of Son. On December 1, 2021, the Department filed its original petition seeking termination of Father’s and Mother’s parental rights or modification of the managing conservatorship. An order of protection was entered the same day, and Son was placed with Grandmother during the duration of the case. The trial court held a two-day bench trial on December 14, 2022 and January 18, 2023. By the time of the bench trial, the Department was no longer seeking termination of Father’s parental rights but instead sought for Grandmother to be awarded sole managing conservatorship of Son and for Father to not be appointed as either managing or possessory conservator. On the first day, the trial admitted into evidence without objection a permanency report, the removal affidavit, parental service plans for Father and Mother, Father’s psychological evaluation, Mother’s drug tests, and Son’s therapy notes. In addition to the interviews described above, the removal affidavit stated that Father had convictions for possession of marijuana in 2000, manufacturing or delivery of a controlled substance in 2012, possession of a controlled substance in 2015, assault causing bodily injury in 2019, and assault causing bodily injury and possession of a controlled substance in 2020, and that Father was arrested for possession of marijuana in 2021. The affidavit also described a 2020 Department case concerning allegations of neglectful supervision and physical abuse of Son by Father where Father had physically assaulted Grandmother while Son was present. The Department determined during its investigation that Son had been residing with Grandmother “since birth” and that, at the time, Father had “untreated mental illness and was homeless.” The allegation of physical abuse was ultimately ruled out, while the allegation of neglectful supervision was found reason to believe. Son’s therapy notes from November 2022 stated that since being placed with Grandmother, Son reported his mood as “happy,” that his “control of his ADHD continues being good,” and that Son “is doing well and excelling at school.” The therapist recommended that it would be “counter productive” to force Son to “spend time with individuals with who [Son] does not have a secure attachment” and did not recommend Son transition to living in or transition to “two homes.” The therapy notes also noted that Son had a history of physical abuse in childhood. Jennifer Calamateo, the Department caseworker, testified that Son had been removed “due to neglectful supervision” by Father, and she clarified that “the child was being threatened, so [Father] was arrested.” Calamateo confirmed that although Father was present at the hearing, Father had not attended any other hearing since June 2022. She described Father’s June 2022 psychological evaluation, which diagnosed Father with post-traumatic stress disorder (PTSD) and insomnia and noted Father presented with “paranoid ideation and visual hallucinations” as well as “frequent nightmares and flashbacks.” The evaluation also described Father as having below average interest and motivation for treatment, that his responses suggest “he is satisfied with himself as he is . . . [and] sees little need for change in his behavior,” and that Father “evidences difficulties managing his anger.” The evaluation recommended individual therapy, anger management, and medication. Calamateo testified that Father had been referred to two different therapists but Father was negatively discharged from both, the latter because of “him missing multiple therapy sessions.” Calamateo confirmed that Father has not been drug tested during the case, had not completed his outreach screening assessment referral (OSAR evaluation), and that he was arrested during the course of the case for possession of “spice.” (The permanency report admitted into evidence also noted that Father “has been minimally cooperative” with the Department.) She expressed concern about Father being diagnosed with PTSD and using drugs. Calamateo confirmed that Father was currently employed but he was not providing any child support or items for Son. She explained that Father was currently prohibited from parent-child visits because of a court order.[4] Calamateo testified that her understanding is that, prior to removal, Father “was residing in his own apartment and that [Son] was residing with [Grandmother].” Calamateo explained that Grandmother has asserted that Son has lived with her since he was two weeks old. Grandmother was meeting all of Son’s emotional and physical needs, Grandmother was providing a safe and suitable home, and Son called Grandmother “Mom.” Calamateo agreed that Father could not provide a safe, stable, or suitable home for Son, that Father has not successfully completed his services required under the service plan, and that Father has not demonstrated behavioral changes showing he could provide for the emotional and physical needs of Son. She agreed that she had concerns about placing Son with either parent because of the “drug and criminal history that’s been going on just during this case.” Calamateo confirmed that Grandmother has not received financial help from Father. Calamateo testified that it was in Son’s best interest to remain with Grandmother, that Son wants to reside with Grandmother, and that Grandmother is the “only parent [Son] knows.” Father then testified that Son would be harmed if he stayed with Grandmother, discussing his own tumultuous history with Grandmother. Father testified that Grandmother had sent him by bus to Houston when he was a teenager to live with his father, and when the Department tried to place him back with Grandmother, Grandmother told them “that she didn’t want to deal with me.” Father testified around that time Grandmother “tried to stab me” and ultimately he was taken from Grandmother and placed with his father. Father expressed concern about what will happen when Son becomes a teenager “because I know her attitude and I know her mind.” Father testified that he and Grandmother “co-parented” Son and that he was previously living at Grandmother’s house but moved out to stay with other family members after Grandmother “started making fun of me on the phone with her friends and stuff.” He stated that the other family members “started attacking me” similar to how Grandmother “did growing up.” Father testified that his criminal record has “a bunch of domestic violence, but I’m the victim and they’re the accusers.” Father disputed that Son was living exclusively with Grandmother prior to the case, explaining that Father “was right there with him,” and that when Father moved into his own place, he and Grandmother agreed that Son “could finish up his schooling” near Grandmother’s house and would then start the next school year with Father. Father testified that the allegations against him are false and are just attempts to take away Son. Father testified that he is “real close” with Son, and when asked why Son has told his counselor he does not want to see Father, Father explained that Grandmother was “coaching” Son and he predicted that Son would run to Father and display affection toward him if Son was brought to court. Father asked the Court not to end the case and instead order counseling for him and Son. When asked about his missed therapy sessions, Father testified that the therapist’s secretary quit and they did not schedule him for his session. When asked about his medication, Father explained he takes pain medication for his back and medication for “agitation,” and Father blamed Mother as the reason he had to take medication for “agitation because they know she aggravates me.” Father testified that he last spoke with Grandmother earlier that week on social media about a relative’s passing. Father expressed concern about Grandmother supervising visitations because “she’s not going to let me see” Son and that Grandmother is “money hungry,” “can’t afford her lifestyle,” and that she has alienated Father from Son because “she needs y’all['s] money to take care of him.” Father confirmed he was “arrested for spice.” When asked about his spice usage, Father testified he had not used since “over a year ago.” Father stated that he “beat the charges” on his arrest this year because “somebody put that [spice] in my truck,” but Father confirmed he had another pending “charge of spice” from the previous year. Father denied he was on spice during the hearing, and he later testified that he had not used marijuana since “a month and a half ago”; he blamed Grandmother for doing “something to me over at that store, so I smoked me a joint.” Father denied he had ever used methamphetamine, heroin, or cocaine. When asked about his conviction for possession of a controlled substance, Father explained “[t]hat was CBD . . . because at the time CBD was still illegal.” When asked about a 2012 guilty plea for manufacturing or delivery of a controlled substance, Father testified that “those drugs were actually” someone else’s and that “I just took the charges.” When asked about the 2001 criminal case concerning possession of cocaine, Father again denied he had ever used cocaine and he explained that “the original charge was delivery of a controlled substance” and he pleaded to the lesser offense of possession. Father expressed a desire to present witnesses on his behalf, and the trial court directed that the hearing would be resumed one month later. The trial court admonished Father that he needed to “make sure that you have all of your evidence” on that day. The trial court also directed Father to take a nail-bed drug test in the interim before the next hearing date. The trial court resumed the hearing on January 18, 2023, and noted at the outset that Father did not complete the required drug test. When asked about whether Father had any evidence to put into the record, Father’s counsel stated that he did not have any witnesses or evidence to put into the record and that Father was not able to attend the hearing because of an “emergency-type” doctor’s appointment. The guardian ad litem relayed that Son’s therapist “does not believe any communication [with Father] at this time would do anything other than set [Son] back on the progress that he has made and is continuing to make” and requested that Son have no contact with either parent until after the therapist recommended such contact. She also stated that Son is “doing well’ with Grandmother, is “doing well in school” and that “staying with his grandmother and not having contact with his parents is exactly what he needs at this time.” The guardian ad litem further testified that Son’s therapist believed any communication with Father would be “very detrimental” to Son’s progress. At the end of the second day of the hearing, the trial court appointed Grandmother as the sole managing conservator of Son. The trial court also found that appointing Father as a managing or possessory conservator of Son was not in his best interest because the appointment would significantly impair his physical health or emotional development and endanger his emotional well-being.[5] Father filed the present appeal, arguing that the trial court abused its discretion when it did not award him conservatorship of Son and found that it would be against the child’s best interest to appoint him as either the managing or possessory conservator. As part of that argument, Father challenges the sufficiency of the evidence to support the trial court’s findings and argues that the Department did not overcome the parental presumption. STANDARD OF REVIEW We review a conservatorship determination for abuse of discretion. A.S. v. Texas Dep’t of Fam. & Protective Servs., 665 S.W.3d 786, 794 (Tex. App.—Austin 2023, no pet.). “A trial court’s determination of what is in the child’s best interest,” including the terms and conditions of conservatorship, “is a discretionary function.” In re J.J.R.S., 627 S.W.3d 211, 218 (Tex. 2021). The trial court’s judgment therefore will only be reversed when the record as a whole shows the court has abused its discretion by acting arbitrarily or unreasonably; that is, “without reference to any guiding rules or principles.” A.S., 665 S.W.3d at 795 (quoting In re J.J.R.S., 627 S.W.3d at 218). Legal and factual sufficiency are not independent grounds of error but factors used “in assessing whether the trial court abused its discretion.” Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—Austin 2006, pet. denied). An appellate court undertakes a two-prong inquiry in such circumstances. Id. at 588. We begin by undertaking a traditional sufficiency review to determine whether the trial court had sufficient information on which to exercise its discretion. A.S., 665 S.W.3d at 795. Then, we proceed “to determine whether, based on the evidence, the trial court made a reasonable decision, that is, that the court’s decision was neither arbitrary nor unreasonable.” Id. (quoting Zeifman, 212 S.W.3d at 588). “Evidence is legally sufficient when it would enable reasonable and fair-minded people to reach the verdict under review and is factually insufficient only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id. “As conservatorship determinations are intensely fact driven, the trial court is in the best position to observe the demeanor and personalities of the witnesses and can ‘feel’ the forces, powers, and influences that cannot be discerned by merely reading the record.” In re J.J.R.S., 627 S.W.3d at 218 (quoting Lenz v. Lenz, 79 S.W.3d 10, 19 (Tex. 2002); Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.—Austin 2002, no pet.)) (cleaned up); see also Bush v. Bush, 336 S.W.3d 722, 730 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“In a bench trial, the trial court is the sole judge of the credibility of the witnesses, assigns the weight to be given their testimony, may accept or reject all or any part of their testimony, and resolves any conflicts or inconsistencies in the testimony.” (quoting Rich v. Olah, 274 S.W.3d 878, 884 (Tex. App.— Dallas 2008, no pet.))). “A trial court does not abuse its discretion if there is some substantive, probative evidence to support its decision.” A.S., 665 S.W.3d at 795. APPLICABLE LAW In his sole issue, Father argues that the trial court abused its discretion when it did not award him conservatorship of Son and found that it would be against the child’s best interest to appoint him as either the managing or possessory conservator. The best interest of the child is always the “primary consideration” of conservatorship decisions.[6] Tex. Fam. Code § 153.002. Moreover, there is a rebuttal presumption that appointment of a parent as a managing conservator “is in the best interest of the child.” Id. § 153.131(b). “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), and the fact that another party, such as a grandparent, “would be a better custodian of a child is not sufficient to rebut the parental presumption absent” additional required showings, id. (quoting 89–1 State Bar Section Report—Family Law 27 (J. Sampson ed. 1989)). The Family Code therefore sets forth a “series of directives” a trial court must follow when determining the appropriate conservatorship appointment for parents. In re J.J.R.S., 627 S.W.3d at 218. First, a parent shall be appointed managing conservator unless the court finds that the appointment “would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.” Tex. Fam. Code § 153.131(a). If the parent is not appointed managing conservator, then the trial court shall appoint the parent as possessory conservator unless the court “finds that the appointment is not in the best interest of the child and that parental possession or access would endanger the physical or emotional welfare of the child.” Id. § 153.191. The nonparent has the burden to rebut the parental presumption by a preponderance of the evidence. A.S., 665 S.W.3d at 796; see also Tex. Fam. Code § 105.005 (requiring generally that findings be based on preponderance of evidence). Generally, evidence of a parent’s specific acts or omissions “that demonstrate an award of custody to the parent would result in physical or emotional harm to the child” is sufficient proof to rebut the parental presumption. A.S., 665 S.W.3d at 796 (quoting Lewelling, 796 S.W.2d at 167); see also J.H. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00162-CV, 2021 WL 2834719, at *4 (Tex. App.—Austin July 8, 2021, no pet.) (mem. op.). The evidence, however, must go beyond raising the “mere potential threat” of harm, In re B.B.M., 291 S.W.3d 463, 467 (Tex. App.— Dallas 2009, pet. denied), or the “mere suspicion or speculation of possible harm,” J.H., 2021 WL 2834719, at *4. Parental conduct that constitutes significant impairment includes, but is not limited to, physical abuse, severe neglect, drug or alcohol abuse, abandonment, bad judgment, history of mental disorders, or “immoral behavior by the parent.” In re S.T., 508 S.W.3d 482, 492 (Tex. App.—Fort Worth 2015, no pet.); see also J.H., 2021 WL 2834719, at *4. Furthermore, the “material time to consider is the present.” In re S.T., 508 S.W.3d at 492. Although “a factfinder may infer the present unfitness of the parent to be managing conservator from the parent’s recent, deliberate past misconduct,” C.O. v. Texas Dep’t of Fam. & Protective Servs., No. 03-21-00453-CV, 2022 WL 413374, at *4 (Tex. App.—Austin Feb. 11, 2022, no pet.) (mem. op.), evidence of past conduct alone “may not, by itself, be sufficient to show present unfitness,” A.S., 665 S.W.3d at 797 (quoting In re S.T., 508 S.W.3d at 492); see also May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi-Edinburg 1992, writ denied) (“If the parent is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling.”). With these standards in mind, we turn to Father’s challenge to the trial court’s conservatorship determination. DISCUSSION Evidence introduced at trial established that Father had multiple drug-related and assault convictions, including convictions for assault causing bodily injury in 2019, assault causing bodily injury and possession of a controlled substance in 2020, and possession of marijuana in 2021. Calamateo also testified that father failed to drug test throughout the case, did not complete his OSAR evaluation, and was arrested for possession of spice during the pending Department case. Father admitted at trial that he had a pending charge for spice possession (though he denied using the drug) and admitted he smoked marijuana a month and a half before the final hearing. See In re S.T., 508 S.W.3d at 492 (stating drug use and “immoral behavior” constitute significant impairment). After the close of the first day of trial, the trial court also ordered Father to submit to a nail-bed drug test during the one-month interim between trial dates, but Father failed to submit to the drug test or provide an explanation for his failure at the last day of trial. See A.S., 665 S.W.3d at 797 (“[I]t is well-established that a parent’s failure or refusal to take drug tests supports an inference by the factfinder that the parent was using drugs.”). Father has also been diagnosed with PTSD, “presented with paranoid ideation and visual hallucinations,” and had frequent nightmares and flashbacks. Although he was recommended for individual therapy, Calamateo testified that Father had been negatively discharged from two different therapists during the case. The initial investigation at removal had also concluded that Father had a continuing pattern of not treating his mental health issues and abusing substances. At trial, Father testified that he was supposed to be taking several psychiatric medications, but he also presented as “hyper” during his testimony. Son had previously told the investigator that he was afraid of Father because Father was ‘acting crazy” and “threatening people,” and at the time of trial, both Calameteo and the guardian ad litem testify that Son still did not want contact with Father; guardian ad litem further testified that Son’s therapist believed any communication with Father would be “very detrimental” to Son’s progress. Father disputed this testimony and claimed his Son was being “coached,” but the trial court could have disbelieved Father’s testimony in light of the other evidence before the court. See In re J.J.R.S., 627 S.W.3d at 218. Furthermore, Father was not participating in any visits with Son due to a court order, which prohibited visitations until Father appeared before the court; Father, however, had failed to take the necessary steps to have the order lifted. See In re S.T., 508 S.W.3d at 492 (stating abandonment and bad judgment constitute significant impairment). Taken together, the trial court could have credited the evidence of Father’s conduct—including his ongoing criminal issues, failure to adequately take steps to address his mental health issues, continued drug use and lack of drug testing, and his failure to take meaningful steps to pursue visitation—to find that the Department had rebutted the parental presumption, that appointing Father as managing conservator would significantly impair Son’s physical health or emotional development, and that appointing Father as a possessory conservator would endanger Son’s welfare. See id.; see also J.H., 2021 WL 2834719, at *4 (affirming trial court’s placement of children with grandparent and not appointing mother as managing or possessory conservator based on her conduct). We therefore cannot say the trial court abused its discretion by finding the parental presumption was rebutted because “there is some substantive, probative evidence to support its decision.” See A.S., 665 S.W.3d at 795. Father also argues that there was insufficient evidence showing that appointing Father as conservator was not in Son’s best interest. Just as in a termination determination, best interest determinations in the conservatorship context are reviewed in connection with the non- exhaustive factors set out in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors include the child’s wishes, the child’s emotional and physical needs now and in the future, any emotional or physical danger to the child now and in the future, the parenting abilities of any parties seeking access to the child, programs available to help those parties, plans for the child, the stability of any proposed placement, any evidence that the parent-child relationship is improper, and any excuses for the parent’s conduct. Id. at 371–72; see also In re S.T., 508 S.W.3d at 490. A trial court has “wide latitude” in determining best interest and may impose any conditions it finds necessary for the child’s best interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Son, who was eight years old at the time of trial, previously told the Department investigator that he was afraid of Father because he was “acting crazy” and “threatening people.” Calamateo testified that Son did not want to see Father, that Son was very bonded with Grandmother and called her “Mom,” and that Son had told her he wanted to stay with Grandmother. Father presented conflicting testimony that he was “real close” with Son and blamed Grandmother “coaching” Son for why Son would say he does not want to see Father. However, Father had not been participating in parent-child visits because of a court order, and Calamateo testified that Father had been residing in his own apartment while Son resided with Grandmother prior to removal. See Bush, 336 S.W.3d at 730 (explaining factfinder is sole judge of credibility of witnesses and may resolve conflicts or inconsistencies in testimony). As to the emotional and physical needs and dangers now and in the future for Son, Father had multiple drug-related and assault convictions spanning from 2000 through 2021. Father also had repeated involvement with the Department throughout Son’s life, including the most recent referral precipitated by Father not taking his psychiatric medications, having a psychotic break, and threatening to harm Grandmother. Son told investigators he was scared of Father, and evidence in the record from multiple sources indicated that Son’s behavior had become “much better” since contact with Father ceased. Father’s psychological evaluation indicated he suffered from PTSD, “presented with paranoid ideation and visual hallucinations,” and had frequent nightmares and flashbacks. Father testified at trial that he was on medication for “agitation,” but Father also admitted that he had only a few months prior self-medicated with marijuana after an interaction with Grandmother. Moreover, the psychologist noted that Father had “substantially lowered” treatment motivation and that his “responses suggest that he is satisfied with himself as he is . . . and that as a result he sees little need for changes to his behavior.” Father was “minimally cooperative with the Department” throughout the case, failing to take drug tests, failing to complete the OSAR evaluation, and being negatively discharged from two separate therapists. In contrast, the trial court could reasonably have concluded that these factors weighed strongly in favor of the best interest finding given the testimony by Calamateo and the guardian ad litem that Son is doing “much better” since contact with Father has stopped, Son’s previous stated fear of Father, and evidence that communication by Father with Son would be “very detrimental” to Son’s progress. Finally, as to parenting ability, plans, and stability, there was repeated evidence that Father did not complete his court-ordered service plan. Indeed, Father failed to take the court-ordered drug test during the interim between the first and second day of trial and failed to attend in person on the latter date, even though the trial court explained on the record that it was giving a month between the two days so that Father could gather and present his witnesses and other evidence. See A.S., 665 S.W.3d at 797. Father testified that he was employed and staying in his own apartment, but Father also conceded that he had a criminal case still outstanding against him. Moreover, Father failed during the course of the case to pay any child support, provide any items, or take the necessary steps to have the order lifted that was preventing visitation. In contrast, Calamateo testified that Grandmother was meeting all of Son’s emotional and physical needs, that her home was safe and appropriate, and Son’s therapy session notes indicated that his behavior has improved, his control over his ADHD remained good, and he was excelling at school. See In re C.R.T., 61 S.W.3d 62, 67–68 (Tex. App.—Amarillo 2001, pet. denied) (affirming appointment of non-parent as managing conservator because of evidence of parent’s neglect, along with evidence that non-parent provided stability, support, and positive environment for child). On this record, we conclude that the trial court had legally and factually sufficient evidence on which to exercise its discretion and that it did not err in its application of that discretion when it appointed Grandmother as Son’s sole managing conservator and declined to appoint Father as a managing or possessory conservator. See Tex. Fam. Code §§ 153.131(a), .191; see also J.H., 2021 WL 2834719, at *5–6. We overrule Father’s sole issue on appeal. CONCLUSION Having concluded there was sufficient evidence supporting the appointment of Grandmother as Son’s sole managing conservator, we affirm the trial court’s order. Darlene Byrne, Chief Justice Before Chief Justice Byrne, Justices Triana and Theofanis Affirmed Filed: October 12, 2023
