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Opionion: IN THE MATTER OF B.B.M., A CHILD, Appellant

In The Court of Appeals Fifth District of Texas at Dallas
No. 05-08-00501-CV
On Appeal from the 305th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 05-1377-X
Before Justices Morris, Wright, and Moseley
Opinion By Justice Morris

In this appeal a father challenges the trial court's order
appointing two nonparents as managing conservators of his son. Shawn M.
contends the evidence is both legally and factually insufficient to
support the jury's finding that appointing him as managing conservator
would significantly impair the child's physical health or emotional
development. After reviewing the record on appeal, we agree the evidence
is factually insufficient to support the jury's finding. Accordingly, we
reverse the portion of the trial court's order decreeing managing
conservatorship of the child and remand that portion of the cause for a
new trial.
B.B.M. is the biological child of Shawn M. and Samantha M. Shawn
and Samantha began dating in 2002 and, soon thereafter, began living
together in Granbury, Texas. In June 2003, Samantha gave birth to their
first child, a girl named Kaylee. Shawn, Samantha, and Kaylee lived
together, with short periods of separation, until late 2004 when

Samantha and Kaylee moved out. Samantha then began dating a man
named Darrell and, within a few weeks, Samantha and Kaylee moved in with
him. Several months later, Samantha discovered she was five months
pregnant. When Shawn learned that Samantha was pregnant, he called
Darrell's house to speak to her. The two began arguing and Samantha gave
the phone to Darrell. Darrell testified that Shawn asked him, “You and
Samantha are having a baby, why don't you just give me Kaylee?”
Samantha immediately began to consider placing the unborn baby
for adoption. She discussed the pregnancy with Darrell's mother, who
told Samantha that she knew of a couple in Idaho, Travis and Sabra Hess.
They wanted to adopt a child. Darrell's mother gave Samantha the phone
number of LDS Family Services, the adoption agency the Hesses were
using. Samantha then contacted Kimberly Sidwell, one of LDS's
Sidwell met with Samantha two weeks before the baby was due to
be born. At that time, Sidwell asked Samantha whether she knew the
identity of the baby's father. Samantha told Sidwell that Shawn was the
father and indicated he was not aware of her pregnancy. Sidwell asked
for an address to contact Shawn, but Samantha said she did not know
where he was. Samantha did, however, provide Sidwell with Shawn's date
of birth and social security number. After the meeting, Samantha asked
LDS if she could work with a different caseworker due to a “personality
conflict” with Sidwell.
Samantha next met with Eric Larsen from LDS. Larsen also asked

about the paternity of the baby, and Samantha told him she was fairly
certain that Shawn was the father. Samantha also stated, however, there
was a possibility that the father was Darrell. When Larsen asked where
he could find Shawn, Samantha told him she thought he was either living
in Dallas or going to school in Florida. After being asked multiple
times how to contact him, Samantha finally admitted that Shawn lived in
Granbury and gave Larsen a phone number for Shawn's mother, Sandra.
A few days before the baby was born, Sandra received a telephone
call from Terri Razo, Samantha's father's girlfriend. Razo informed
Sandra that Samantha was due to give birth very soon. When Sandra told
Shawn that Samantha was about to give birth, he realized, based on the
timing of the pregnancy, that he could be the father. Samantha stated
that she believed Shawn always knew how far along in the pregnancy she
was, but she admitted she never discussed it with him.
The next day, Sandra was contacted by Larsen, who told her that
Samantha named Shawn as one of the baby's possible fathers. Larsen
further told her that Samantha was planning to put the baby up for
adoption. Sandra testified she informed Larsen that Shawn would not
allow the baby to be adopted if he was the father.
After speaking with Larsen, Sandra called the hospital where
Samantha planned to give birth. Sandra spoke with Julie Whittenberg, a
clinical social worker at the hospital who was assisting with the
adoption. Whittenberg testified that Sandra sounded upset and frantic

and asked for her help. Sandra told Whittenberg that she and Shawn had
recently discovered he might be the father of the baby. Sandra further
stated that Shawn would not agree to an adoption.
Whittenberg called Larsen the next day and told him she was
aware that Shawn had been left out of the adoption process and informed
him that Shawn was not agreeing to the adoption. Whittenberg asked
Larsen how Shawn was going to be able to gain access to the baby to have
a paternity test performed. Larsen said that the test probably would not
be done.
The day before the baby was born, Shawn called the hospital
multiple times attempting to speak with Samantha. Samantha refused to
speak to Shawn, but Darrell spoke with him. Darrell testified that the
only concerns Shawn raised during their conversation were that his name
not be put on the baby's birth certificate and that he not be forced to
pay child support. Shawn testified he told Darrell that if the baby was
his, he wanted to keep the child and he would not agree to an adoption.
Larsen spoke with Samantha later that day. Samantha told him that Shawn
was “supportive of the adoption plan.”
The baby was born on July 2, 2005. Following the birth, Samantha
requested to be designated as a “no information” patient. The
designation prevented the hospital from releasing any information about
her or the baby except to certain named individuals. Shawn was not named
as a person to whom information could be released.
The Hesses were present at the hospital for the baby's birth.

Larsen told the Hesses about Shawn and that it was possible Shawn was
the baby's father. Larsen also told them that Shawn had been calling the
hospital and was concerned about what was happening. The Hesses signed a
“Contract and Acknowledgement of Legal Risk in Placement” stating they
understood there was a risk the birth parents would not relinquish or
terminate their rights to the baby, and the child could be removed from
their home “at any time.” Samantha signed an affidavit relinquishing her
rights, but Shawn was not contacted after the birth. Sabra Hess
testified that Larsen told them Shawn had thirty days to file a notice
of intent to claim paternity and if he failed to do so, they would be
fine. Sabra also testified Larsen told them that “things had been worked
out” with Shawn. The Hesses left the hospital with the baby on July 4,
2005 and took him to their home in Idaho. Shawn testified that he had no
idea who took his son or where he was taken.
On July 28, 2005, Shawn filed his notice of intent to claim
paternity of the baby with the state paternity registry. Larsen did not
send a written request to the registry inquiring about potential
paternity claims until September 7, 2005. Over a month later, Larsen had
not received a reply from the registry, but he received a telephone call
from Samantha. Samantha told Larsen that Shawn had called her claiming
the adoption was illegal. Larsen then called the paternity registry. He
was informed that Shawn had timely filed his notice of intent to claim

paternity. Shawn testified he thought that filing the notice of intent
would be sufficient to stop the adoption. He further testified that,
during the months following the baby's birth, he contacted several
lawyers, wrote a letter to the governor's office, and contacted the FBI
and a father's rights group in an attempt to assert his rights to the
On October 24, 2005, Larsen sent Shawn a letter stating that
Samantha had requested LDS's services “to plan an adoptive placement for
the baby.” Larsen requested that Shawn sign the enclosed affidavit
waiving all potential rights, duties, privileges, and child support
responsibilities to the baby. The letter further stated that if Shawn
refused to sign the affidavit, there would be a hearing requesting that
his legal rights be terminated in accordance with Texas law. Larsen told
Shawn that signing these forms would “greatly simplify the process for
you and Samantha” and would ensure that the baby was “placed in a loving
home with a mother and father.”
Two days later, LDS filed suit requesting the termination of
Shawn and Samantha's parental rights to the baby. Shawn filed a
counter-petition to establish paternity on April 7, 2006. The trial
court ordered a paternity test, and the results showed that Shawn, in
fact, was the child's biological father. The Hesses intervened in the
suit and requested termination of both Samantha and Shawn's parental
rights or, alternatively, that they be appointed managing conservators
of the child. A trial was held in January 2007, and the jury returned a

verdict refusing to terminate Shawn's parental rights. The jury,
however, awarded managing conservatorship of the child to the Hesses.
The trial court signed its final order in accordance with the jury's
verdict on January 7, 2008. Shawn brought this appeal seeking to reverse
the trial court's judgment relating to the managing conservatorship of
his son.
The strong presumption that the best interest of a child is
served by appointing a natural parent as managing conservator is deeply
embedded in Texas law. See Lewelling v. Lewelling, 796 S.W.2d 164, 166
(Tex. 1990). To overcome this presumption, a nonparent must prove by a
preponderance of the evidence that appointment of the parent as managing
conservator would significantly impair the child's physical health or
emotional development. See Tex. Fam. Code Ann. § 153.131(a) (Vernon
2008); see also Lewelling, 796 S.W.2d at 167. The evidence cannot merely
raise a suspicion or speculation of possible harm. See In re De La Pena,
999 S.W.2d 521, 528 (Tex. App.-El Paso 1999, no pet.). Instead, the
evidence must support the logical inference that some specific,
identifiable behavior or conduct of the parent will probably harm the
child. Id. Evidence that a nonparent would be a better custodian of the
child is wholly inadequate to meet this burden. See Lewelling, 796
S.W.2d at 167.
Shawn alleges that the evidence is legally and factually
insufficient to support the appointment of the Hesses as his son's
managing conservators. In reviewing a challenge to the legal sufficiency

of the evidence, we must determine whether the evidence, as a whole,
would enable reasonable and fair-minded people to differ in their
conclusions. See OAIC Commercial Assets, L.L.C. v. Stonegate Village,
L.P., 234 S.W.3d 726, 736 (Tex.App.-Dallas 2007, pet. denied). We view
the evidence in the light favorable to the findings, crediting favorable
evidence if a reasonable fact-finder could and disregarding contrary
evidence unless a reasonable fact-finder could not. City of Keller v.
Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Anything more than a scintilla
of evidence is legally sufficient to support a challenged finding. See
OAIC, 234 S.W.3d at 736. When reviewing a factual insufficiency
challenge, we consider all of the evidence and determine whether the
verdict is so contrary to the great weight and preponderance of the
evidence as to be manifestly unjust. See Corales v. Dep't. of Family &
Protective Servs., 155 S.W.3d 478, 488-89 (Tex. App.-El Paso 2004, no
The evidence relied upon by the Hesses to support the jury's
verdict primarily relates to the potential impairment of the child's
emotional development resulting from his removal from the Hesses' home.
This focus on potential harm caused by the child's removal is misplaced.
The proper focus of the court's inquiry is solely upon whether the
placement of the child with the natural parent would significantly
impair the child's physical health or emotional development. See
Lewelling, 796 S.W.2d at 166.
The Hesses rely heavily upon the case of In re Rodriguez to

support their position that the effect of removing the child from their
care must be considered. See In re Rodriguez, 940 S.W.2d 265 (Tex.
App.-San Antonio 1997, writ denied). In Rodriguez, the court affirmed
the trial court's order appointing the adoptive parents as the child's
managing conservators and appointing the child's natural father as her
possessory conservator. In doing so, the court discussed the “undisputed
expert testimony” establishing that the child's emotional development
“will be impaired to some extent if she is removed from the
[nonparent's] care.” Id. at 273. This evidence included testimony that,
after two visits with her natural father, the child would refuse to go
to sleep and woke in the middle of the night screaming. Also following
the visits, the child would cry if her adoptive parents left the room.
First, to the extent Rodriguez can be read to hold that the
negative effect on the child caused by his separation from the
nonparents may, standing alone, be sufficient to deny a natural parent
managing conservatorship, we decline to follow it. A natural parent has
a fundamental liberty interest in the care, custody, and management of
his child. See Santosky v. Kramer, 455 U.S. 745, 753 (1982). This right
cannot be infringed absent evidence that such care, custody, and
management by the natural parent would result in physical or emotional
harm to the child. See Lewelling, 796 S.W.2d at 167.
Secondly, the facts of this case are readily distinguishable
from those in Rodriguez. Unlike the child at issue in Rodriguez, there

is no evidence that the boy in this case suffered any ill effects from
time spent with his father. To the contrary, a clinical social worker
who observed Shawn interacting with his son on several occasions
testified that the boy seemed very happy in Shawn's care. The social
worker stated Shawn was “interactive with the child in a way that was
meaningful to the child.” The boy “played freely and explored in his
dad's presence” and he was “laughing,” “smiling,” and “coming to his dad
for help.” Sabra Hess testified she had no concerns about Shawn caring
for the boy and that their visits went very well.
Finally, all of the evidence the Hesses presented about the
negative effect on the child resulting from his separation from them was
theoretical in nature. The Hesses testified that they believed the boy
would be significantly impaired if he was taken from them, but they
presented no specific evidence to support this belief. Statements by
Sidwell and Larsen to the same effect were equally unsupported. The
Hesses presented the expert testimony of Dr. Beth Bontempo, a
psychologist, who was hired by them to conduct a “bonding and attachment
assessment.” Dr. Bontempo stated that she could “hypothesize based on
attachment theory” that the child at issue would experience a breach of
trust, broken attachment, and a sense of abandonment. Dr. Bontempo
further stated, however, that it was “hard to know specifically for this
child because we can't really know what his experience is going to be.”
A mere potential threat, as opposed to evidence of actual harm to the

child's emotional development, is insufficient to deny a natural father
the right to raise his own son. See De La Pena, 999 S.W.2d at 532-33.
The Hesses contend that Shawn was not diligent in pursuing his
paternity claim, which allowed the child to reside with them for a
lengthy period of time and form a strong attachment. The Hesses argue
this conduct should prevent Shawn from removing the child from the only
home he has ever known. Although there is some dispute about when Shawn
first became aware that he was the child's potential father and whether
he initially supported the adoption plan, the evidence is undisputed
that he timely filed his notice of intent to claim paternity with the
state registry after the child was born. The evidence is also undisputed
that, in the months following the child's birth, Shawn contacted several
lawyers, wrote a letter to the governor's office, and contacted the FBI
and a father's rights group in an attempt to determine how to assert his
rights. Although it took time for the case to be brought to trial, Shawn
did nothing during that time period that would demonstrate an intent to
abandon his parental rights to his son. Even more importantly, it is
undisputed that LDS allowed the Hesses to obtain custody of the baby and
remove him from the state with full knowledge that the natural father
had not relinquished his rights and there was a risk the child would
need to be returned to him.
The Hesses next attempt to show that Shawn's past behavior
indicates that granting him managing conservatorship of the child would

significantly impair the boy's physical health or emotional development.
Although an adult's future conduct may be somewhat determined by recent
past conduct, past misconduct may not be sufficient, in and of itself,
to show present unfitness to be a parent. Whitworth v. Whitworth, 222
S.W.3d 616, 623 (Tex. App.-Houston [1st Dist.] 2007, no pet.). Certain
past acts or omissions such as physical abuse, severe neglect,
abandonment, drug or alcohol abuse, or immoral behavior may indicate a
threat of future harm to a child. See De La Pena, 999 S.W.2d at 528.
Custody disputes are inherently fact intensive, however, and we must
evaluate each case on an individual basis. Id. at 529. When a nonparent
and a parent are both seeking managing conservatorship, the “close
calls” go to the parent. See Whitworth, 222 S.W.3d at 623.
The Hesses contend that Shawn has a history of being physically
abusive. Samantha testified there were three different incidents of
“domestic violence” involving Shawn during the two-year period she lived
with him. The first incident occurred approximately one year into their
relationship. Samantha testified they had a fight that escalated into
each of them pushing and shoving the other. Samantha stated that she
slapped Shawn and he punched her in the shoulder. When asked if she was
injured, Samantha replied, “Not bad. He just hit my arm.” Samantha did
not seek any medical attention following the incident.
On the next occasion, Samantha and Shawn were outside arguing
and Samantha was yelling. According to Samantha, Shawn picked up a rock

off the driveway and threw it at her leg. The rock hit her leg causing
it to bleed “a little bit.” Again, Samantha did not seek medical
Samantha testified that the final occasion took place when
Samantha and Shawn were in the car with Kaylee. Samantha stated Shawn
hit her in the face and his finger scratched her eye causing “permanent
damage.” Following the incident, Razo took Samantha to the hospital.
Razo testified that, when she asked Samantha how she injured her eye,
Samantha told her she hit it on the door to the hot water heater in
their trailer. Razo further testified she never saw any indication of
any physical altercations between Shawn and Samantha. Shawn denied
hitting Samantha and stated he had no idea Samantha had an eye injury,
though he once took her to a doctor because she was complaining about
her eye.
In addition to these incidents, Samantha testified that Shawn
essentially forced her to have sex with him one time after she had moved
out. Samantha stated she went back to his place to get her things and,
because she was moving her belongings out, “there was just a lot of
convincing on it.” According to Samantha, Shawn indicated she needed to
have sex with him to get her things back.
Despite this testimony, Samantha testified she did not think
Shawn posed any danger to either of their children. Indeed, Samantha
allowed Shawn to spend more time with Kaylee than the court order on
custody of Kaylee required. When asked why she thought custody of their
son should not be awarded to Shawn, Samantha stated she thought Shawn

did not do enough with his kids and was unreliable in paying child
support. There is no evidence that Shawn ever harmed one of the children
or was in any way inappropriately physical with them or with anyone
other than Samantha.
Dr. Linda Threats, a clinical social worker, who specializes in
child custody evaluations, testified that based upon her observations of
Shawn and his son together, Shawn appeared to be fair- minded, gentle,
stable, and appropriate in terms of discipline. Dr. Threats further
opined that, although Shawn was anxious at times, he did not have any
type of personality disorder. Threats stated Shawn was genuinely
interested in being a parent to his son and that he takes commitment
Debra George, a neighbor of Shawn's parents and a parenting
skills teacher, testified she had observed Shawn interacting with
Kaylee. According to George, Shawn appeared to have a good relationship
with Kaylee and she followed him everywhere. George never saw anything
about Shawn's relationship with Kaylee that caused her concern. She
stated Shawn “does great” in his frequent interactions with the foster
children in her care. Most of George's clients at her parenting classes
are ordered to be there by child protective services. But Shawn
voluntarily chose to attend her parenting classes and paid for them.
Linda McDonald, a social worker who specializes in home studies
and approving foster homes, testified she evaluated Shawn's parenting
skills and his ability to provide a secure and safe home for his

children. McDonald testified Shawn and Kaylee had a very loving and
nurturing relationship and they were very bonded to each other. She
observed that Shawn was patient and kind with Kaylee and stated he even
stopped the home study at one point so he could go outside and be with
her because she wanted his attention. She believed Shawn had good
parenting skills and that he had shown he could meet the needs of a
child financially and emotionally. McDonald had no concerns that Shawn
would pose any threat of significant impairment to a child's physical
health or emotional development.
As stated above, it is the nonparent's burden to show by a
preponderance of the evidence that appointing the parent as managing
conservator would significantly impair the child's physical health or
emotional development. In this case, the evidence preponderates strongly
in favor of Shawn's ability to safely and securely raise his son. All of
the testifying experts agreed that Shawn was attentive to the needs of
his children and provided a safe and loving environment. Even Samantha
and Sabra testified that they had no concerns for the child's safety in
Shawn's care.
The only evidence counteracting this is Samantha's testimony
about three incidents in which Shawn apparently hurt her physically and
one incident in which he required her to have sex with him in order to
get her things back from his residence. Viewing this testimony in the
light most favorable to the verdict, as we must, we are compelled to
conclude that it amounts to more than a scintilla of evidence to support

awarding managing conservatorship to the Hesses. We further conclude,
however, that this testimony is greatly outweighed by the evidence
showing that awarding managing conservatorship to Shawn poses no threat
to his son's physical or emotional well-being. The evidence shows that
Shawn has struggled to assert his right to be a father to his son and
that he is capable of forming a loving and supportive bond with his
child. To deny him this parental right, in favor of a nonparent, based
solely on testimony of alleged incidents that took place in one past
relationship, which the record before us reveals was characterized by
inappropriate behavior on both sides, would both shock the conscience
and be manifestly unjust. See Pool v. Ford Motor Co., 715 S.W.2d 629,
635 (Tex. 1986).
In reaching this conclusion, we recognize the important balance
that must be struck between the best interest of a child and a parent's
constitutional right to care for his child. The rights of a natural
parent have been characterized as essential and far more precious than
any property right. See Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).
But parental rights are not absolute, and the physical and emotional
well-being of the child must not be sacrificed to preserve those rights.
See In re C.H., 89 S.W.3d 17, 26 (Tex. 2002). With these important
interests and the standard to be applied in mind, we have reviewed the
record as a whole and hold that the evidence is factually insufficient
to support a finding that awarding Shawn managing conservatorship of his

son would significantly impair the child's physical health or emotional
Finally, the Hesses appear to argue that Shawn should not be
awarded managing conservatorship of his son because he has a history of
failing to support both the child at issue and his other children.
Before Shawn and Samantha had Kaylee, Shawn fathered a son with a
previous girlfriend. Shawn acknowledged he missed some of his child
support payments for that child but stated that the lapse was due to his
suffering a work-related accident. After a long and expensive custody
battle over the child, Shawn ultimately relinquished his parental
rights, and the child was adopted by his maternal grandparents.
Shawn also conceded that he missed some of the required child
support payments for Kaylee, but the evidence showed he had provided
financial assistance in the past and, at the time of trial, he was
paying child support through deductions from his paycheck. Although
Shawn failed to visit with Kaylee for a lengthy period of time after she
and Samantha moved in with Darrell, Shawn stated it was because Darrell
threatened Shawn to stay away from them. As for the child
involved here, Samantha suggests that, despite the fact she never
discussed the pregnancy with Shawn, he should have known he was
potentially the father and offered to provide her with financial
assistance. Shawn did not pay for any of the medical expenses during
Samantha's pregnancy, but when he was eventually given the Hesses's
address, he began sending them money to help support the child.

Although this testimony may show that Shawn is not a perfect
parent, it provides no evidence that appointing Shawn as managing
conservator of his son would significantly impair the child's physical
health or emotional development. Although there may be many reasons that
appointing Shawn as managing conservator rather than the Hesses might
not be in the child's best interest, the only reason sufficient to rebut
the parental presumption is a threat to the child's physical or
emotional safety. See Lewelling, 796 S.W.2d at 166.
After reviewing the record as a whole, we conclude the Hesses
failed to meet their burden to rebut the parental presumption. The
evidence is factually insufficient to support the trial court's order to
the extent it awards managing conservatorship of B.B.M. to the Hesses.
Accordingly, we reverse the trial court's order in part and remand the
issue of managing conservatorship of B.B.M. for a new trial. The
portions of the order addressing the termination of parental rights to
B.B.M. are affirmed.

File Date[06/25/2009]
File Name[080501F]
File Locator[06/25/2009-080501F]
2009 Jun 25