This is аn appeal of a judgment rendered in a suit affecting a parent/child relationship
The record shows that Mother gave birth to the child on December 15, 1991. Shortly thereafter, Mother filed a paternity action against Tony Warren (“Father”), a man to whom she had never been married. 1 He contested his paternity. In October of 1992, the court rendered judgment establishing Father’s paternity of the child, and required him to pay child support. Mother was named the sole managing conservator. In May of 1993, Father and Mother entered into a written agreement which was signed by both parties and notarized before a notary public. The substance of the agreement was that Father would have temporary custody of the child from May of 1998 until May of 1995, and that Father’s custody would not be construed as abandonment by Mother. After entering into the agreement, Mother moved to Kerens, Texas, where she lived with her family, attended Navarro Junior College, and worked full time at the Kmart Distribution Center. In May of 1995, Mother completed her degree. In July of 1995, Father filed a Motion to Modify, seeking to be named managing conservator. The court granted his request for a temporary restraining order, preventing Mother from seeing the child. On August 18, 1995, the trial court entered temporary orders and named Father as managing conservator of the child. After a negative report from the court-appointed psychologist concerning Father, Grandmother filed a Petition in Intervention on December 7,1995, requesting that the court appoint her as the child’ sole managing conservator. On or about January 31, 1996, in a non-jury trial, the trial court granted Grandmother’s petition. Father and Mother were appointed possessory conservators.
In her first point of error, Mother maintains that the trial court erred in failing to file findings of fact and conclusions of law. Pursuant to Tex.R.App.P. 81(a), we ordered this appeal be abated and remanded to the trial court for entry of findings of fact and conclusions of law as rеquested by Appellant. The trial court complied with this court’s order, thereby correcting the error. Mother’s first point of error is overruled.
In Mother’s second point of error, she alleges that the trial judge erred in taking judicial notice of evidence from the temporary hearing, since he did not remember the case. • At the final hearing the following exchange occurred:
The Court: Okay. You are right. This is not the lady from Dallas; is it?
Mr. Norwood: No. she presently resides in Kerens, Your Honor.
The Court: Okay. Good. I was confusing this with that Dallas case. Just a second.
Mr. Norwood: We don’t want you to take judicial knowledge of the wrong ease.
Mr. Dunn: Would you like us to hit with you some of the brief facts?
The Court: I do too many of these at the same time. Okay. Yeah, I’ve got — that’s why I’m doing it this way, to make sure I’ve got it in my mind. Because before I do something that is bound to upset somebody, I want to make sure I’m doing it for the right reasons, and have the right case, and have the right history. The lady is in Kerens. Okay.
Mr. Norwood: The child I believe was born in December of 1991. So she would be a little over four years old.
The Court: Okay. I remember it then.
Mr. Norwood: So based upon that, we have stipulated that the Court can takejudicial knowledge of the previous testimony on the temporary hearings.
The Court: How сould I not any way? Specifically, that’s one of the reasons that I went ahead to make sure that I remember the right case.
Mr. Norwood: There were a number of exhibits introduced. We would ask that the Court take judicial knowledge of those exhibits.
The Court: I will. I will do that.
Pursuant to Tex.R.Civ.Evid. 201, a trial judge may take judicial notice of a fact if it is “one not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdictiоn of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be questioned.”
Besing v. Smith,
In her third point of error, Mother avers that thе trial court erred in granting Grandmother’s Petition in Intervention and in appointing her managing conservator of the child because there is no evidence or, in the alternative, insufficient evidence, to support the court’s ruling. While findings of fact in a case tried to the court have the same force and dignity as a jury’s verdict upon jury questions,
4
the trial judge’s findings of fact are not conclusive when a complete statement of facts appears in the record.
5
The judge’s findings of fact are reviewable for legal and factual sufficiency of the evidence by the same standards that are applied in reviewing the evidence supporting a jury’s answer.
Zieben v. Platt,
In the instant case, Mother complains of the following specific findings of fact: 1) Mother did not provide any support for the subject child for an extended period of time; 2) the history of violence betweеn Mother and Father, and the prospects of violence between them in the future, present a dangerous circumstance for the child; and 3) Mother relinquished the child to Grandmother.
This suit turns on the trial court’s decision to appoint a non-parent managing conservator of a child. This is an extremely important issue because the right of a parent to raise his or her child is an “essential right” and a “basic civil right of man” and woman.
Stanley v. Illinois,
The parental presumption, however, may be rebutted by a non-parent when:
(1) the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s рhysical health or emotional development; or
(2) a person who is not a parent seeks appointment as managing conservator of the child by intervening in or commencing a suit affecting the parent-child relationship ... and the court finds that:
(A) the child’s parent, if the child has only one parent, or parents have voluntarily relinquished possession and control of the child to the person оr agency for a period of one year or more a portion of which was within 90 days preceding the date of intervention or commencement of the suit or proceeding; and
(B) the appointment of the person as managing conservator of the child is in best interest of the child.
Tex.Fam.Code Ann. § 14.01(b)(1), (b)(2) (Vernon Supp.1991). 6
The first scenario in which the court may appoint a non-parent conservator arises when the parent’s conservatorship would significantly impair the child’s health or emotional development. Tex.Fam.Code Ann. § 14.01(b)(1). In this situation, the non-parent must prove by a preponderance of credible evidence that awarding custody to the parent would result in serious physical or emotional harm to the child.
Lewelling,
Examples of acts or omissions which would show significant impairment of the child are physical abuse, severe neglect, abandonment, drug or alcohol abuse or very immoral behavior on the part of the parent.
Thomas v. Thomas,
In Lewelling, the Texas Supreme Court held that there was no evidence to show that granting custody to the mothеr of the subject child would significantly impair the child’s physical health or emotional development. Id. The Court concluded that the following amounted to no evidence which would support awarding custody to the child’s grandparents: 1) physical abuse between the spouses, including when the mother was pregnant; 2) recommendation by a social worker that the child be placed with the grandparents; 3) the child had resided most of his life with the grandparents; 4) the mother did not see the child for nearly a two month period while the child was living with the grandparents; 5) the mother was unemployed and did not have much money; 6) the mother had twice been a patient at Terrell State Hospital; and 7) the mother lived in crowded conditions. Id. at 165-67.
Similarly, in
Brigham,
the court held that there was no evidence to support granting the maternal grandmother sole managing conservatorship over the mother.
Brigham v. Brigham,
The court in
In re W.G.W., a Child
held that there was enough evidence to overrule a no evidence point; but there was insufficient evidence to support the jury’s finding of significant impairment.
In re W.G.W., a Child,
Conversely, the court in
May
found sufficient evidence to support granting custody of the children to their material grandfather.
May,
The second fact situation which supports a rebuttal of the parental presumption is voluntary relinquishment of the child to the non-parent for a period of one year or more, a portion of which was within 90 days of the non-parent filing an intervention. Tex.Fam. Cоde Ann. § 14.01(b)(2).
Although there was testimony of previous violence between Mother and Father, Father stated that it had been a while since he and Mother had even argued. They had no рroblems during the period of temporary visitation ordered by the trial court before the final hearing. Neither Mother nor Father ever hurt the child, nor made any comments to anyone about hurting or harming the child. The court-appointed psychologist, who recommended that the court appoint Grandmother managing conservator, testified that there was a “potential” of future harm to the child. Shе based her opinion of a potential threat on acts which took place five years before, prior to the birth of the child. The psychologist stated that she believed Grandmother would be a better choice, and that the parents of the child were too immature, defensive and angry at one another to be good parents.
In view of the undisputed evidence that the child had never been harmed by Mother or Father, and that any violence between Mother and Father occurred remote in time, and never in front of the child, there is no evidence that supports a logical inference that some specific, identifiable behavior or conduct of either parent will probably cause impairment. Grandmother failed to show a link between Mother’s and Father’s conduct and harm to the child which raised more than speculation of possible harm. We, therefore, conclude that the instances cited and the evidence presented were so weak as to do no more than create a mere surmise or suspicion that Mother’s or Father’s appointment as managing conservator would significantly impair the child, either physically or emotionally.
On the issue of voluntary relinquishment, Mother admitted that she left her child with Grandmother for two years while she attended school and received her degree.
We reverse and render the trial court’s order as to Grandmother’s appointment as managing conservator, and remand to the trial court for determination of Father’s original Motion to Modify. The trial court shall determine whether, pursuant to the dictates of TexFam .Code Ann. § 14.08, Mother shall continue as managing conservator, or whether the court shall appoint Father managing cоnservator.
Notes
. Father was 16 years old when he and Mother began their sexual relationship, 17 years old when the child was conceived, and 18 years of age when the child was bom. He lived at home with Grandmother until he was 21 years old. Mother is approximately 6 years older than Father.
.
Harper v. Killion,
.
Barber v. Intercoast Jobbers & Brokers,
.City of Clute v. City of Lake Jackson,
.
Middleton v. Kawasaki Steel Corp.,
. Because Father filed his motion to modify before September 1, 1995, the pre-1995 Family Code provisions apply.
. The date was hotly contested. It is interesting to note that in 1992, when Father testified he had possession of the child, he was contesting the paternity suit.