in the Interest of L.D.J. III, A.Y.J., W.F.J., and C.J., Children, 13-15-00099-CV

Background

Appellant (mother) left the U.S. in Dec 2012 for immigration processing; she remained in Mexico for a time and gave birth there; husband Dean remained in the U.S. and cared for the children initially.
On Dec 21, 2012 three children came into Appellee’s (paternal grandmother’s) possession; mother communicated with the children through her husband and attempted visits while abroad.
In April 2014 mother and husband traveled to Fredericksburg and agreed the two children could stay with grandmother until end of school year; in June 2014 tensions rose and grandmother refused to return the children.
Husband Dean committed suicide on July 3, 2014; grandmother obtained a writ of attachment in Kendall County and had Hidalgo County law enforcement execute removal of the children July 11, 2014.
Mother filed suit in Hidalgo County for a Suit Affecting the Parent-Child Relationship; bench trial held Dec 17–18, 2014; trial court appointed grandmother sole managing conservator; mother appeals, arguing evidence legally and factually insufficient to rebut parental presumptions under Tex. Fam. Code §§153.131 and 153.373.

Issues

Issue	Plaintiff's Argument (Appellant: Jones)	Defendant's Argument (Appellee: Jones)	Held (trial-court finding / appellate posture)
Whether grandmother rebutted presumption under §153.373 (voluntary relinquishment ≥1 year)	Mother: she never voluntarily relinquished children to grandmother; custody was entrusted to husband while she was involuntarily abroad; little/no contact with grandmother; grandmother’s possession flowed from husband not mother	Grandmother (as pleaded): children were in her care for the statutory period and thus rebutted the parental presumption	Trial court found grandmother rebutted on voluntary-relinquishment grounds; appellant challenges legal and factual sufficiency on appeal
Whether grandmother rebutted presumption under §153.131 (appointment of parent would significantly impair child)	Mother: appellee offered no proof of present, specific acts or omissions (drug use, abuse, neglect, criminality) that would significantly impair children’s physical or emotional development	Grandmother: asserted harm/risk from uprooting and alleged concerns about mother’s fitness (testimony attempted to show instability)	Trial court found appointment of mother would significantly impair children; appellant argues insufficiency and abuse of discretion
Whether evidence supported trial-court Findings of Fact Nos. 2, 4, 5 (possession, relinquishment, best interest)	Mother: Findings unsupported—no agreement or proof mother gave up care to grandmother; C.J. (youngest) was never in grandmother’s possession before writ; contact through husband shows ongoing parental control	Grandmother: relied on her testimony and certain documents (will, POA of son) and on the children’s physical presence with her	Appellant asks reversal and rendition in her favor or, alternatively, remand for new trial if factual insufficiency is found
Proper remedy on appellate review	Mother: reverse and render that mother be sole managing conservator; alternatively remand for new trial if evidence found factually insufficient	Grandmother: would seek to uphold trial-court appointment	Appellant briefs frame for appellate abuse-of-discretion review; decision depends on appellate court’s assessment of legal/factual sufficiency and application of §153.131/§153.373 standards

Key Cases Cited

Critz v. Critz, 297 S.W.3d 464 (Tex. App.—Fort Worth 2009) (discusses limits on finding voluntary relinquishment where parent maintained periodic contact)
Gray v. Shook, 329 S.W.3d 186 (Tex. App.—Corpus Christi 2010) (reversed trial-court conservatorship for insufficiency to rebut parental presumption; harm from "uprooting" alone is speculative)
Shook v. Gray, 381 S.W.3d 540 (Tex. 2012) (Texas Supreme Court clarified trial court may consider nonparent’s role; remanded scope limited)
Lewelling v. Lewelling, 796 S.W.2d 164 (Tex. 1990) (nonparent must show specific, identifiable parental conduct likely to cause significant harm)
May v. May, 829 S.W.2d 373 (Tex. App.—Corpus Christi 1992) (nonparent must present evidence of specific parental conduct causing likely harm; close calls resolved for parent)
In re S.A.H., 420 S.W.3d 911 (Tex. App.—Houston [14th Dist.] 2014) (construed "voluntarily relinquish" as "give up by one's own free will")
Chavez v. Chavez, 148 S.W.3d 449 (Tex. App.—El Paso 2004) (parallels on burden to show specific parental conduct and ends of voluntary relinquishment)
Danet v. Bhan, 436 S.W.3d 793 (Tex. 2014) (cited regarding burdens and appellate review principles in family-law custody disputes)