IN THE INTEREST OF CHILD v. << (2026)

OPINION

A mother appeals from a final order appointing the Department of Family and Protective Services as sole managing conservator of her child, ordering her to pay child support, and imposing restrictions on her possession of and access to her child. Mother argues that (1) the trial evidence is legally and factually insufficient to support the jury's finding that the department should be appointed sole managing conservator; (2) the trial court committed charge error; (3) the trial court reversibly erred in admitting certain evidence and excluding other evidence; and (4) the trial court abused its discretion by ordering mother to pay child support and by imposing restrictions on her possession of and access to her child. We affirm.

I. FACTUAL AND PROCEDURAL BACKGROUND

Appellant/respondent K.R. (“Mother”) is the mother of P.J. (“Child”), who was nine years old at the time of trial in the court below. When Child was three years old, Mother started a relationship with R.J. (“Boyfriend”).¹ In August 2019 appellee/petitioner the Department of Family and Protective Services (the “Department”) investigated an allegation of physical neglect of Child by Mother.² There were concerns of drug use in the home by Mother and Boyfriend, no food in the home, and there were also some bruises that were seen on Child. Mother tested positive for marijuana during the investigation. This case was “Ruled Out and Administratively Closed.” “Ruled Out” means there is no evidence that abuse or neglect occurred. The Department conducted a second investigation in August 2020. There were concerns that Child had been heard screaming for about 90 minutes and that Boyfriend had been heard yelling at him, as well as concerns of drug use and domestic violence in the home. Synthetic marijuana was found in the home. The Department asked Mother to take a drug test. She delayed about a month in taking the test, and the results were negative. This case was “Ruled Out.” In January 2021 the Department investigated an allegation of neglectful supervision of Child by Mother. There was a fire in the home, and it was believed that Mother and Boyfriend had been using drugs at the time of the fire. The Child had to be lift-flighted to a hospital for treatment of his burns, and there were concerns that Mother was leaving him alone at the hospital, that she was not cooperating with his treatment, and that she was refusing a surgery for him. The result of the case was “Unable to Determine” because there was not enough evidence to show that neglect or abuse had occurred. There was another investigation of an allegation of neglectful supervision of Child by Mother in 2021. There were concerns that Mother was leaving Child alone in the hospital at a time when it was required for a parent to be with Child and that Mom would not feed him or had to be told to feed him. There was an incident with her not wanting to help change his dressings and bathe him. The hospital staff agreed to continue to monitor Mother and Child and to make a report once Child was released from the hospital if there were still concerns. The result of the case was “Unable to Determine.” About a week later there was another investigation of an allegation of neglectful supervision of Child by Mother. Boyfriend was homeless, and Mother and Child were staying at a shelter. There were concerns that Mother was late and missing a lot of Child's appointments and was not following up with all his appointments, that Mother was not assisting in Child's treatment, and that Child's wounds were getting worse due to the failure to follow up with the appointments and follow the recommended treatments. This case was Ruled Out. Mother and Child were staying at a shelter and the staff there agreed to help take Child to the medical appointments and to monitor Mother and Child. In October 2021 the Department investigated concerns that Mother and Child had left the shelter and were living in a car with Boyfriend and that he had kicked them out of the car. There were also concerns that Child was not getting proper treatment. The outcome of the case was “Unable to Complete” because the Department was unable to locate the Mother, Child, and Boyfriend.

Tammy Cisneros, a Department investigator, testified that she received a report of neglectful supervision concerning Child on February 22, 2024, alleging that Boyfriend had punched Child in the face, leaving a mark, and that Child was being left unsupervised in a public library. Cisneros stated that she located the family at the library around 10:30 a.m. and reviewed a Notification of Rights form with Mother, which Mother signed.³ Cisneros discussed the allegations with Mother, who said she had been told that the cut on Child's forehead was an accident and that she had not been told that Boyfriend had punched Child. Cisneros observed Child to have scarring on his face and hands from being burned, and she saw a cut on his forehead that appeared to be recent. Child told Cisneros that Boyfriend had hit him in the stomach and face before and made a fist with his hand. Child further disclosed that Boyfriend had hit him on the forehead the previous day and that Child was scared and did not feel safe around Boyfriend.

Child stated that Mother had slapped him before when he talked back but he was not afraid of her. He also told Cisneros that they sometimes did not have food to eat. Cisneros testified that Boyfriend appeared to be under the influence of something when she spoke to him because his eyes were kind of half open, kind of glassy, and he seemed kind of in a daze. She read him the rights form, but he did not sign it.

A library employee showed Cisneros a video of the incident. Afterward she went to look for the family, and they were gone. Cisneros tried to call Mother several times, but Mother would hang up after Cisneros identified herself. Cisneros also involved a special investigator to help locate the family due to concern that they were trying to hide from the Department. At trial Mother admitted that she knew the Department was looking for her because of the phone calls and that she blocked the phone number after a few calls.

Cisneros testified the family was located on March 15, 2024, approximately three weeks later, at the same library. Cisneros and a co-worker arrived in the library parking lot. She observed Child playing outside, and she walked up to the car in which the family was living to speak to Mother. Cisneros discussed with Mother her Child's statement that Boyfriend had punched him and that the Department had concerns for Child's safety. Cisneros asked Mother if she would be willing to sign a safety plan. Mother did not say anything and then after Cisneros spoke with her more, Mother said, “Well, what am I supposed to do?” in regard to Boyfriend punching Child in the face. Mother's response raised concerns that she was not being protective of Child and that she was not taking it seriously that Boyfriend injured Child by punching him and that Child was scared of Boyfriend. Mother would not agree to a safety plan involving returning with Child to the shelter with limited contact with Boyfriend, and a parent-child safety plan in which Child would stay with a relative could not be facilitated because the only person Mother offered as a potential placement could not take Child due to financial reasons. Child told Cisneros that Boyfriend had hit him on the head with an open hand since he saw her last, that they had been living in the car, and that he had not eaten that day.

Cisneros testified a decision was made to remove Child for his safety because Boyfriend punched him in the face in public, Mother did not appear to be protective of Child, and Mother was unwilling to sign a safety plan or take precautions to limit contact between Boyfriend and Child.

On March 18, 2024, the Department filed suit in the trial court against Mother and against Child's father, V.J. (“Father”), seeking alternative relief, including the appointment of the Department as Child's sole managing conservator, and the termination of the parent-child relationship between Mother and Child and between Father and Child. The Department also asked that Mother and Father be ordered to pay child support. The Department was appointed the child's temporary sole managing conservator on an emergency basis the next day. The Child was placed with foster parents until August 2024, when he was place with A.D. (“Aunt”), a paternal aunt of the Child, who lives in Saint Louis, Missouri. When the case was called to trial, the Child had been living with Aunt for more than a year.

The case was called to a jury trial on September 8, 2025. Before voir dire began, the Department stated that it was not seeking termination of the parent-child relationship between Mother and Child or between Father and Child. Instead the Department sought to be appointed the Child's sole managing conservator. Pretrial motions were heard, and the jury was selected. After being recessed, the trial began again on September 29, 2025, and concluded on October 3, 2025. In response to Question No. 1, the jury found that the Department, rather than Mother, should be named the managing conservator of the Child. In response to Question No. 2 and Question No. 3, the jury answered that Mother and Father should each be named as a possessory conservator of the Child.

On December 29, 2025, the trial court signed a final order in which (1) the trial court found that the appointment of either Mother or Father as a managing conservator of Child would not be in the best interest of the Child because the appointment would significantly impair the Child's physical health or emotional development; (2) the trial court found by clear and convincing evidence that the parental presumption had been rebutted and that placement of the Child with Mother or Father would significantly impair the Child's physical health or emotional development, which demonstrates that Mother and Father cannot adequately care for the Child; (3) the trial court listed ten reasons why denying the relief requested by the Department would significantly impair the Child's physical health or emotional development; (4) the trial court ordered that the Department be appointed the sole managing conservator of the Child; (5) the trial court ordered that Mother be appointed as a possessory conservator and that this appointment is in the Child's best interest; (6) the trial court stated that Mother should be provided possession and access to the Child as provided in the final order and that this possession and access does not exceed the restrictions needed to protect the best interest of the Child; (7) the trial court ordered that absent mutual agreement otherwise, Mother have two in-person visitation periods per month with Child—a three-hour in-person visitation period in Texas on the third Saturday of each month with a therapist present and an in-person weekend visit in Missouri, at Mother's option, for four hours of supervised visitation on Saturday and Sunday, with Mother's travel expenses paid by the Department; (8) the trial court ordered that virtual visitation between Mother and Child occur weekly; and (9) the trial court ordered that Mother pay the Department child support of $227.11 per month for Child's support.

At Mother's request, the trial court issued findings of fact and conclusions of law. Mother timely perfected this appeal from the trial court's final order.⁴ Although the trial court did not terminate any parent-child relationship, the trial court issued a final order under chapter 263, subchapter E of the Texas Family Code; therefore, this appeal from that order is an accelerated appeal under section 263.405 of the Family Code. See Tex. Fam Code Ann. §§ 263.404, 263.405 (West, Westlaw through 2025 2d C.S.).

II. ISSUES AND ANALYSIS

A. Did the trial court commit the charge errors argued by Mother on appeal?

On appeal Mother presents five appellate issues and many arguments under those issues. In her second issue Mother asserts as follows:

Whether the trial court committed reversible jury-charge error by (1) refusing to require the jury to identify the specific facts necessary to rebut the parental presumption under Texas Family Code § 153.002(c), (2) including unconditioned best-interest factors that misdirected the jury from the governing statutory standard, and (3) refusing to submit a requested instruction under Texas Family Code § 261.307 regarding exclusion of evidence, thereby depriving Mother of her right to a jury determination of controlling fact issues and probably causing the rendition of an improper judgment.

The trial court has considerable discretion to determine necessary and proper jury instructions. See Texas Workers' Comp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909, 911 (Tex. 2000). For an instruction to be proper, it must (1) assist the jury, (2) accurately state the law; and (3) find support in the pleadings and the evidence. See id. at 912. We address the second issue out of order because its resolution helps in the analysis of the first issue.

1. Trial court's failure to require the jury to specify the facts that support the jury's finding that denial of the relief requested by the Department would significantly impair the Child's physical health or emotional development.

In her second issue Mother argues that the trial court reversibly erred by refusing her request that if the jury found that the Department should be named sole managing conservator of the Child, the jury charge should ask the jury to identify the specific facts supporting the finding that the parental presumption was rebutted and that failure to appoint the Department as sole managing conservator would significantly impair the Child's physical health or emotional development. Mother argues that such a jury question is required under Family Code section 153.002(c). Tex. Fam Code Ann. § 153.002(c) (West, Westlaw through 2025 2d C.S.). Mother asserts that the recently enacted section 153.002(a) requires the trial court to state in its order appointing the Department as sole managing conservator the specific facts that support the trial court's finding that the parental presumption has been rebutted. Mother argued at the charge conference that the trial court could not know the jury's reasoning and that what the trial court found to be a significant impairment might be completely different from what the jury found to be a significant impairment. Rather than ask the jury to identify the specific facts supporting its finding that the parental presumption was rebutted, the trial court listed in its final order ten facts that the trial court thought supported a finding that failure to appoint the Department as sole managing conservator would significantly impair the Child's physical health or emotional development. We presume for the sake of argument that Family Code section 153.002 applies to the determination of whether the Department or Mother should be appointed sole managing conservator of the Child, and that Mother preserved error on this complaint during the charge conference.

In language added by the Texas Legislature effective September 1, 2025,⁵ Family Code section 153.002 provides as follows:

(b) In a suit between a parent and a nonparent, it is a rebuttable presumption that:

(1) a parent acts in the best interest of the parent's child; and

(2) it is in the best interest of a child to be in the care, custody, and control of a parent.

(c) In a suit between a parent and a nonparent, the nonparent may overcome the presumption under Subsection (b) by proving by clear and convincing evidence that denial of the relief requested by the nonparent would significantly impair the child's physical health or emotional development. If the court renders an order in the suit granting relief to the nonparent, the court shall state in the order:

(1) the specific facts that support the court's finding that denying the relief requested by the nonparent would significantly impair the child's physical health or emotional development; and

(2) the extent to which the nonparent has overcome the presumption under Subsection (b).

Tex. Fam Code Ann. § 153.002(b),(c) (West, Westlaw through 2025 2d C.S.). Family Code section 105.002(c) provides that “[i]n a jury trial: (1) a party is entitled to a verdict by the jury and the court may not contravene a jury verdict on the issues of: (A) the appointment of a sole managing conservator; (B) the appointment of joint managing conservators; (C) the appointment of a possessory conservator ․” Id. § 105.002(c) (West, Westlaw through 2025 2d C.S.).

We review the trial court's interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex. 1989). In construing a statute, our objective is to determine and give effect to the Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000). If possible, we must ascertain that intent from the language the Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).

Under the plain text of Family Code section 105.002(c), in the jury trial in this case Mother was entitled to a verdict by the jury on the issue of whether Mother or the Department should be appointed sole managing conservator of Child, and the trial court was forbidden from contravening the jury's verdict on this issue. See Tex. Fam Code Ann. § 105.002(c). If the jury's findings on this issue are supported by legally and factually sufficient evidence, courts must give effect to these findings. See In re J.A.J., 243 S.W.3d 611, 616, n.5 (Tex. 2007). Family Code section 153.002 does not state that even in jury cases, the trial court makes the finding as to whether denying the relief requested by the nonparent would significantly impair the child's physical health or emotional development (the “Finding”). See id. If it did, then section 153.002 would conflict with section 105.002(c) which requires a jury verdict on who should be appointed sole managing conservator of the child in jury cases. See Tex. Fam Code Ann. § 105.002(c). Section 153.002(c) requires the trial court to state “the specific facts that support the court's finding that denying the relief requested by the nonparent would significantly impair the child's physical health or emotional development.” Id. (emphasis added). In a jury case in which the jury is making this finding, there are no specific facts to state because there is no finding by the trial court on this point. See id. In a non-jury case, the trial court makes the Finding, and thus the trial court is in a position to state specific facts supporting the Finding. See id. In context and under the unambiguous language of section 153.002, we conclude that this statute does not require the trial court to state specific facts when the jury makes the Finding by means of its verdict, as in today's case, in which the jury impliedly made the Finding in its answer to Question No. 1. See id.; In re H.L., No. 02-14-00388-CV, 2016 WL 354080, at *6 (Tex. App.—Fort Worth Jan 28, 2016, pet. denied) (holding that, despite language in Family Code section 153.131(a) indicating that the court makes a finding as to whether the parental presumption has been rebutted, if a jury trial has been demanded, then the jury makes this finding, and under Family Code section 105.002(c) it would be inappropriate for the trial court to make findings on this issue). Any specific facts stated by the trial court in support of the jury's making the Finding would be superfluous and would not be useful in challenging a Finding made by the jury because the trial court does not know what facts the jury relied on in making the Finding. See Tex. Fam Code Ann. § 105.002(c); In re H.L., 2016 WL 354080, at *6. Section 153.002(c) did not require the trial court to state any specific facts in this jury case, and the statute did not require the jury to state any specific facts. See Tex. Fam Code Ann. § 105.002(c). The trial court did not err in refusing Mother's request that if the jury found that the Department should be named sole managing conservator of the Child, the jury charge should ask the jury to identify the specific facts supporting the Finding. See Tex. Fam Code Ann. § 105.002(c); In re H.L., 2016 WL 354080, at *6.

2. The trial court's instruction to the jury regarding the Holley factors and some of the factors listed in Family Code section 263.307(b).

After instructing the jury that the best interest of the child shall always be the primary consideration in determining questions of managing conservatorship and questions of possession or access to a child, the trial court instructed the jury regarding the parental presumption. Then, the trial court listed the Holley factors ⁶ and eleven of the factors listed in Family Code section 263.307(b)⁷ and stated that these are “some factors to consider in determining the ‘best interest’ of the child.” See Tex. Fam Code Ann. § 263.307(b) (West, Westlaw through 2025 2d C.S.); Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). Under the second issue Mother argues that the trial court erred by instructing the jury on these factors because these factors conflict with the parental presumption. Mother contends that the section 263.307(b) factors apply to placement, not conservatorship. Mother asserts that the trial court erred in submitting these factors without conditioning them on the rebuttal of the parental presumption. Mother voiced these objections during the charge conference. The trial court did not expressly overrule these objections. Nonetheless, we presume for the sake of argument that Mother preserved error on these objections during the charge conference and that Family Code section 153.002 applies to the determination of whether the Department or Mother should be appointed sole managing conservator of the Child.

The Supreme Court of Texas has described the Holley factors as “a list of non-exhaustive factors for determining a minor's best interests,” and the high court noted that courts have applied the Holley factors in the conservatorship context. In re Doe 2, 19 S.W.3d 278, 282 & n. 20 (Tex. 2000). This court has concluded that the Holley factors should be considered in a case involving the parental presumption and the decision not to make a parent a managing conservator. See In re A.H.A., No. 14–12–00022–CV, 2012 WL 1474414, at *11–13 (Tex. App.—Houston [14th Dist.] Apr. 26, 2012, no pet.) (mem. op.). And Texas intermediate courts of appeals have concluded that the Holley factors and the 263.307(b) factors should be considered in cases involving the parental presumption and whether the Department or a parent should be appointed sole managing conservator of a child. See In re D.T., No. 07-19-00071-CV, 2019 WL 3210601, at *9–10 (Tex. App.—Amarillo Jul. 16, 2019, no pet.) (mem. op.); In re J.I.T., No. 01-17-00988-CV, 2018 WL 3131158, at *24–25 (Tex. App.—Houston [1st Dist.] Jun. 27, 2018, pet. denied) (mem. op.). We conclude that the trial court did not abuse its discretion by submitting to the jury the instruction regarding the Holley factors and the section 263.307(b) factors. See In re D.T., 2019 WL 3210601, at *9–10; In re J.I.T., 2018 WL 3131158, at *24–25; In re A.H.A., 2012 WL 1474414, at *11–13; Hatfield v. Solomon, 316 S.W.3d 50, 62 (Tex. App.—Houston [14th Dist.] 2010, no pet.).

3. The trial court's refusal to submit Mother's requested instruction based on Family Code section 261.307

Under the second issue Mother also argues that the trial court reversibly erred by refusing to submit an instruction that she requested based on Family Code section 261.307. We presume for the sake of argument that the requested instruction was in substantially correct form and that Mother preserved error in the trial court on this complaint. Department Investigator Tammy Cisneros testified at trial that she gave Mother a Notification of Rights document, which is the written summary required by Family Code section 261.307, before talking to her on February 22, 2024, as part of the investigation of today's case. Mother testified that Cisneros did not give Mother this document. We presume for the sake of argument that there was a genuine fact issue at trial as to whether Cisneros gave Mother the written summary required by Family Code section 261.307 before asking Mother questions as part of her investigation of today's case. Mother's requested instruction to the jury explains section 261.307 to the jury and then instructs the jury that if it finds that Cisneros did not give Mother (1) the written summary or (2) the verbal notification of rights required by section 261.307, the jury must disregard any information obtained from Mother as well as any other information that would not have been discovered without that information, including any statements by Child.

Family Code section 261.307 provides as follows:

(a) After initiating an investigation of a parent or other person having legal custody of a child, the department shall, upon first contact with the parent or with the alleged perpetrator, provide to the person:

(1) a written summary that:

(A) is brief and easily understood;

(B) is written in a language that the person understands, or if the person is illiterate, is read to the person in a language that the person understands; and

(C) contains the following information:

(i) the department's procedures for conducting an investigation of alleged child abuse or neglect, including:

(a) a description of the circumstances under which the department would request to remove the child from the home through the judicial system;

(b) an explanation that the law requires the department to refer all reports of alleged child abuse or neglect to a law enforcement agency for a separate determination of whether a criminal violation occurred; and

(c) an explanation that any statement or admission made by the person to anyone may be used against the person in a criminal case, as a basis to remove the child who is the subject of the investigation or any other child from the person's care, custody, and control either temporarily or permanently, or as a basis to terminate the person's relationship with the child who is the subject of the investigation or any other child;

(ii) the person's right to file a complaint with the department or to request a review of the findings made by the department in the investigation;

(iii) the person's right to review all records of the investigation unless the review would jeopardize an ongoing criminal investigation or the child's safety;

(iv) the person's right to seek legal counsel;

(v) references to the statutory and regulatory provisions governing child abuse and neglect and how the person may obtain copies of those provisions;

(vi) the process the person may use to acquire access to the child if the child is removed from the home;

(vii) the rights listed under Subdivision (2); and

(viii) the known allegations the department is investigating;

(2) a verbal notification of the right to:

(A) not speak with any agent of the department without legal counsel present;

(B) receive assistance from an attorney;

(C) have a court-appointed attorney if:

(i) the person is indigent;

(ii) the person is the parent of the child; and

(iii) the department seeks a court order in a suit filed under Section 262.101 or 262.105 or a court order requiring the person to participate in services under Section 264.203;

(D) record any interaction or interview subject to the understanding that the recording may be subject to disclosure to the department, law enforcement, or another party under a court order;

(E) refuse to allow the investigator to enter the home or interview the child without a court order;

(F) have legal counsel present before allowing the investigator to enter the home or interview the child;

(G) withhold consent to the release of any medical or mental health records;

(H) withhold consent to any medical or psychological examination of the child;

(I) refuse to submit to a drug test; and

(J) consult with legal counsel prior to agreeing to any proposed voluntary safety plan;

(3) if the department determines that removal of the child may be warranted, a proposed child placement resources form that:

(A) instructs the parent or other person having legal custody of the child to:

(i) complete and return the form to the department or agency;

(ii) identify in the form at least three individuals who could be relative caregivers or designated caregivers, as those terms are defined by Section 264.751;

(iii) ask the child in a developmentally appropriate manner to identify any adult, particularly an adult residing in the child's community, who could be a relative caregiver or designated caregiver for the child; and

(iv) list on the form the name of each individual identified by the child as a potential relative caregiver or designated caregiver; and

(B) informs the parent or other person of a location that is available to the parent or other person to submit the information in the form 24 hours a day either in person or by facsimile machine or e-mail; and

(4) an informational manual required by Section 261.3071.

(b) The child placement resources form described by Subsection (a)(3) must include information on the periods of time by which the department must complete a background check.

(b-1) Before taking any action under Section 261.304, a department representative must provide to a parent or other person having legal custody of a child who is under investigation:

(1) information regarding the representative's identity;

(2) the summary described by Subsection (a)(1); and

(3) a reasonable amount of time to read or review the summary.

(c) The department investigator shall document that the investigator provided the verbal notification required by Subsection (a)(2).

(d) The department shall adopt a form for the purpose of verifying that the parent or other person having legal custody of the child received the verbal notification and written summary required by this section. The department shall provide a true and correct copy of the signed form to the person who is the subject of the investigation or that person's attorney, if represented by an attorney.

(e) If a person who is the subject of an investigation does not receive the verbal notification and written summary required by this section, any information obtained from the person, and any other information that would not have been discovered without that information, is not admissible for use against the person in any civil proceeding.

Tex. Fam Code Ann. § 261.307 (West, Westlaw through 2025 2d C.S.).

Under the unambiguous language of section 261.307(e), if a person who is the subject of an investigation does not receive the verbal notification and written summary required by that section, any information obtained from the person, and any other information that would not have been discovered without that information, is not admissible against the person in any civil proceeding. See id. But Mother does not argue on appeal that the trial court erred in overruling an objection she made to the admissibility of evidence based on section 261.307. Instead Mother argues that the trial court erred in refusing her requested instruction under which the jury would determine the preliminary question of fact for such an objection—whether Mother received the verbal notification and written summary required by section 261.307. Mother cites no case in which the court addresses whether a person is entitled to such an instruction. Mother analogizes her requested instruction to an instruction requested in a criminal case under article 38.23(a) of the Texas Code of Criminal Procedure. See Tex. Code Crim. Proc. art. 38.23(a). That statute provides as follows:

No evidence obtained by an officer or other person in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America, shall be admitted in evidence against the accused on the trial of any criminal case.

In any case where the legal evidence raises an issue hereunder, the jury shall be instructed that if it believes, or has a reasonable doubt, that the evidence was obtained in violation of the provisions of this Article, then and in such event, the jury shall disregard any such evidence so obtained.

Id. Significantly, article 38.23(a) expressly provides for a jury instruction that effectively makes the jury, not the trial court, the one who determines fact issues as to whether evidence was obtained in violation of any provisions of the Constitution or laws of the State of Texas, or of the Constitution or laws of the United States of America. See id. This statute does not apply in civil cases. There is no analogous statute providing for an instruction that (1) the jury in a civil case should resolve a fact issue as to whether a person who is the subject of a Department investigation did not receive the verbal notification and written summary required by Family Code section 261.307 and (2) the jury should disregard any information obtained from the person and any other information that would not have been discovered without that information if the jury finds that the person did not receive the verbal notification and written summary. Under the Texas Rules of Evidence, when the admissibility of evidence depends on some preliminary question of fact, the existence or non-existence of that fact is determined by the trial court, not the jury. See Tex. R. Evid. 104; Ruth v. Imperial Ins. Co., 579 S.W.2d 523, 525 (Tex. Civ. App.—Houston [14th Dist.] 1979, no writ). In the absence of a statute providing otherwise, the trial court, not the jury, resolves questions of fact preliminary to the admissibility of evidence, such as whether Mother received the verbal notification and written summary under section 261.307. See Tex. R. Evid. 104; Ruth, 579 S.W.2d at 525. Therefore, the trial court did not err in refusing to submit Mother's request instruction based on section 261.307.

Having found no merit in any of Mother's arguments under the second issue, we overrule that issue.

B. Is the trial evidence legally and factually sufficient to support the jury's answer to Question No. 1?

In the first issue Mother asks:

Whether legally and factually sufficient evidence, under the clear-and-convincing standard, supports the jury's finding that the parental presumption was rebutted and that appointing the Department—rather than [Mother]—as sole managing conservator was necessary to avoid a significant impairment to [Child's] physical or emotional well-being. Were the trial court's specific factual findings related to a significant impairment supported by legally and factually clear and convincing evidence?

Under the first issue Mother challenges the legal and factual sufficiency of the evidence to support the jury's answer to Question No. 1.

1. The Department's argument that the clear-and-convincing-evidence burden of proof does not apply to the sufficiency challenges under the first issue

Mother argues that under subsections (b) and (c) of Family Code section 153.002, the Department's burden of proof for rebutting the parental presumption and showing that it should be named sole managing conservator of the Child is by clear and convincing evidence. This question appears to be an issue of first impression. The Department asserts that the proper burden of proof is by a preponderance of evidence because (1) the Department is not a “non parent” under section 153.002, and (2) Family code section 263.404 applies in this context rather than section 153.002 and under section 263.404, the burden of proof is by a preponderance of the evidence.⁸

Mother argues that the trial evidence is legally and factually insufficient to support the jury's answer to Question No. 1, which asks whether the Department or Mother should be named as the Child's managing conservator. In the jury charge the trial court instructed the jury on subsections (b) and (c) of Family Code section 153.002, imposing on the Department the burden of overcoming the parental presumption by clear and convincing evidence. The trial court conducted a lengthy charge conference at which (1) no party objected to the imposition of the clear- and-convincing-evidence burden of proof on the Department; and (2) no party presented to the trial court a written question, definition, or instruction to be given to the jury in which the burden of proof on the Department was preponderance of the evidence. Therefore, this court measures the sufficiency of the evidence to support the jury's answer to Question No. 1 using the charge given, even if the charge does not correctly state the law. See Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000) (holding that court could not review the sufficiency of the evidence based on a particular legal standard because that standard was not submitted to the jury and no party objected to the charge on this ground); Shows v. Man Engines & Components, 364 S.W.3d 348, 357–58 (Tex. App.—Houston [14th Dist.] 2012) (concluding that this court would measure the sufficiency of the evidence using the charge given, which did not require that the damages be the reasonable and necessary costs of repair or replacement, even if the charge did not correctly state the law, because at the charge conference no party objected to the trial court's failure to charge the jury on this alleged requirement), aff'd, 434 S.W.3d 132 (Tex. 2014). Thus, we do not address the Department's argument that the clear and convincing evidence burden of proof does not apply, and we review the sufficiency of the evidence under the charge given. See Osterberg, 12 S.W.3d at 55; Shows, 364 S.W.3d at 357–58.

On appeal the Department states that because it was the prevailing party, it did not have to preserve error in the trial court, and the Department appears to argue that, as the prevailing party, its failure to object at the charge conference to the jury charge's use of the clear-and-convincing-evidence burden of proof presents no obstacle to its argument on appeal that the sufficiency of the evidence to support the jury's answer to Question No. 1 should be based on the preponderance-of-the-evidence burden of proof. The Department is correct that we are not dealing with an argument by the Department that the trial court's final order should be reversed based on charge error. Nonetheless, if the Department wanted to have the sufficiency of the evidence supporting the jury's answer to Question No. 1 measured based the preponderance-of-the-evidence burden of proof, the Department needed to raise this complaint during the charge conference and obtain an adverse ruling. See Osterberg, 12 S.W.3d at 55; Shows, 364 S.W.3d at 357–58.

The Department notes that before voir dire, the Department argued to the trial court that the preponderance-of-the-evidence burden of proof applied in this case and that before opening statements, the Department submitted briefing in support of this proposition. In these arguments the Department did not assert that the jury should be charged under the preponderance-of-the-evidence burden of proof or object to any proposed charge that did not use that burden. These preliminary arguments are no substitute for a complaint during the charge conference that the jury charge failed to use the preponderance-of-the-evidence burden of proof. See Osterberg, 12 S.W.3d at 55; Shows, 364 S.W.3d at 357–58; White v. Tex. Dep't of Fam. & Prot. Servs., No. 01-04-00221-CV, 2005 WL 174546, at *9 (Tex. App.—Houston [1st Dist.] Jan. 27, 2005, no pet.) (mem. op.). Thus, we review the sufficiency of the evidence based on the clear-and-convincing-evidence burden of proof used in the charge.

2. The legal and factual sufficiency of the evidence supporting the jury's answer to Question No. 1

Mother argues that the trial evidence is legally and factually insufficient to support the jury's answer to Question No. 1. “Clear and convincing evidence” means a “measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam. Code Ann. § 101.007 (West, Westlaw through 2025 2d C.S.). The heightened clear-and-convincing-evidence burden of proof alters the appellate legal-sufficiency standard of review. See In re J.F.C., 96 S.W.3d 256, 264–66 (Tex. 2002). In conducting a legal-sufficiency review of a jury finding involving this burden of proof, a court must look at all the evidence in the light most favorable to the jury's finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction that the finding is true. See id. at 266. To give appropriate deference to the jury's conclusions and the role of a court conducting a legal-sufficiency review, looking at the evidence in the light most favorable to the judgment means that a reviewing court must presume that the jury resolved disputed facts in favor of its findings if a reasonable factfinder could do so. Id. Furthermore, a reviewing court should disregard all evidence that a reasonable factfinder could have disbelieved or found to have been incredible. Id. This does not mean that a reviewing court must disregard all evidence that does not support the findings in question. Id. Disregarding undisputed facts that do not support the finding could skew the analysis of whether there is clear and convincing evidence. Id. If, after conducting its legal-sufficiency review of the trial evidence, a court determines that a reasonable factfinder could not form a firm belief or conviction that the matter that must be proven is true, then that court must conclude that the evidence is legally insufficient. Id.; see also In re J.L., 163 S.W.3d 79, 84–85 (Tex. 2005) (outlining legal-sufficiency standard of review).

In reviewing a factual-sufficiency challenge to a jury finding involving the clear-and-convincing-evidence burden of proof, a court must give due consideration to evidence that the jury reasonably could have found to be clear and convincing. In re J.F.C., 96 S.W.3d at 266. The factual-sufficiency inquiry is whether the evidence is such that the factfinder reasonably could form a firm belief or conviction about the truth of the Department's allegations. Id. We consider whether the disputed evidence is such that a reasonable factfinder could not have resolved that disputed evidence in favor of its finding. Id. “If, in light of the entire record, the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so significant that a factfinder could not reasonably have formed a firm belief or conviction about the truth of the [petitioner's] allegations, then the evidence is factually insufficient.” Id. We give due deference to fact findings, and we do not supplant the jury's judgment with our own. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006).

The clear-and-convincing-evidence burden of proof is not just an instruction to be read to a jury; it instead has meaningful implications on appeal. In re H.S., No. 24-0307, —S.W.3d—,—, 2026 WL 1614496, at *8 (Tex. Jun. 5, 2026). “As a matter of logic, a finding that must be based on clear and convincing evidence cannot be viewed on appeal the same as one that may be sustained on a mere preponderance.” Id. (citing In re C.H., 89 S.W.3d 17, 25 (Tex. 2002)). Evidence that might be regarded as legally sufficient to sustain a judgment in a case involving the preponderance-of-evidence burden of proof might constitute no evidence in a case involving the clear-and-convincing-evidence burden of proof. In re H.S., 2026 WL 1614496, at *8. The People of Texas recently “enshrine[d]” the rights and responsibilities of parents in our Constitution, observing that they “are deeply rooted in this nation's history and traditions” and include both “the responsibility to nurture and protect the parent's child and the corresponding fundamental right to exercise care, custody, and control” over the child. Tex. Const. art. I, § 37 (emphasis added); see In re H.S., 2026 WL 1614496, at *8. We presume, without deciding, that the Texas Legislature has imposed the clear-and-convincing-evidence burden of proof on the conservatorship issue in today's case and that this imposition is a codification of a constitutional requirement, which in turn reflects that the rights of parents to their children (and vice versa) are fundamental rights of constitutional magnitude. See In re H.S., 2026 WL 1614496, at *8. Therefore, in conducting our legal and factual sufficiency reviews of the jury's answer to Question No. 1, we undertake “an exacting review of the entire record with a healthy regard for the constitutional interests at stake.” In re A.B., 437 S.W.3d 498, 503 (Tex. 2014) (quoting In re C.H., 9 S.W.3d at 26) (internal quotations omitted). Despite this heightened standard of review, we must nevertheless provide due deference to the decisions of the factfinder, who, having full opportunity to observe witness testimony first-hand, is the sole arbiter when assessing the credibility and demeanor of witnesses. In re A.B., 437 S.W.3d at 503.

Near the end of the charge conference, the Department stated that it had no objections to the final version of the jury charge that the trial court submitted to the jury. Mother lodged several objections to the jury charge. In section II.A. above we addressed Mother's charge-error arguments and concluded that they do not show error in the charge. Because there were no valid objections to any defect in Question No. 1 or its accompanying instructions, this court measures the sufficiency of the evidence to support the jury's answer to Question No. 1 using the charge given. See Osterberg, 12 S.W.3d at 55; Tousant v. Buchanan, No. 14-18-00574-CV, 2020 WL 6326176, at *2 (Tex. App.—Houston [14th Dist.] Oct. 29, 2020, pet. denied) (mem. op.); Ho & Huang Props., L.P. v. Parkway Dental Assocs., P.A., 529 S.W.3d 102, 115 (Tex. App.—Houston [14th Dist.] 2017, pet. denied).

In Question No. 1, the jury was asked “Should [Mother] or the [Department] be named managing conservator of the [Child]?” The jury answered that the Department should be Child's managing conservator. For this question, the trial court gave four pages of instructions. The trial court began by describing various terms. The trial court stated that in Texas the “primary custodian” of a child is known as the “managing conservator” and that under Texas law what is ordinarily called “custody” is known as “managing conservatorship.” The court said that what is commonly called “visitation” is known as “possession of or access to a child” in Texas, and that a “non-custodial parent” who is awarded “access and visitation” is known as the “possessory conservator.” The trial court then listed eleven rights and duties that a parent has unless terminated or modified by the court. The trial court also listed eleven rights, privileges, and duties that a managing conservator who is not the parent of the child has. The trial court then gave the following instructions regarding the best interest of the child, the parental presumption, and the burden of proof:

The best interest of the child shall always be the primary consideration in determining questions of managing conservatorship and questions of possession or access to a child.

The law presumes that the best interest of the child is to remain with the natural parent. It is a rebuttable presumption that: (1) a parent acts in the best interest of the parent's child; and (2) it is in the best interest of a child to be in the care, custody, and control of a parent.

A parent shall be appointed permanent managing conservator, in preference to the Department of Family and Protective Services, unless appointment of a parent as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development.

In a suit between a parent and a nonparent, the nonparent may overcome the presumption by proving by clear and convincing evidence that denial of the relief requested by the nonparent would significantly impair the child's physical health or emotional development.9

The trial court then listed the Holley factors and eleven of the factors listed in Family Code section 263.307(b) and stated that these are “some factors to consider in determining the ‘best interest’ of the child.”¹⁰ See Tex. Fam Code Ann. § 263.307(b); Holley, 544 S.W.2d at 371–72. By its answer to Question No. 1 the jury impliedly found that the Department proved by clear and convincing evidence that (1) denying its request to be appointed the Child's managing conservator would significantly impair the Child's physical health or emotional development, and (2) appointing Mother as the child's managing conservator would not be in the best interest of the Child because the appointment would significantly impair the Child's physical health or emotional development.

a. Child's Testimony

Child testified at trial that he does not feel safe around Boyfriend because Boyfriend has punched him in the stomach, hit him in the face, and slapped him. Child stated that in the library, Boyfriend punched him with his fist in a part of his face that has a scar from Child's burn injuries from the fire. Child says that he does not feel safe living with Mother and that his visits with Mother have not been going well. Child does not like coming to Texas for the visits. During the last visit Mother and Child got mad at each other. Child says that Mother grabbed his face, and he threw his shoe at her. Mother then took the shoe and ran back towards Child. Child said he thought Mother was going to hit him with the shoe and that he defecated in his pants, which he had never done before. According to Child, Mother left with his shoe and did not return.

Child agreed that Mother and he were “pretty close” before he was removed from her custody. He testified that he still loves Mother but will never go back to live with her. Child says that he wants to live with his Aunt forever. Child confirmed that he liked getting treatment for his burns and that he thought the treatments were helping him. He testified that he could move his fingers and write better since he had the surgery on his hands. He does not want to live with Mother because he says that Boyfriend will hit him. Although Mother says that she is not living with Boyfriend, Child thinks that Mother is lying about this because Boyfriend comes to Mother's home every night. Child says that Mother has been with Boyfriend since Child was four years old. When asked if he ever told Mother when Boyfriend would hit him, Child said, “She would be trying to tell [Boyfriend] to stop but he would not stop hitting me.” When asked how he would feel if he were forced to live with Mother today, Child said, “I would destroy myself.”

b. Aunt's Testimony

Aunt testified that Child began living with her in August 2024 when he was eight years old, explaining she had gone through a six-month process to gain placement of him. Aunt testified she works with adults with disabilities as a direct care professional, teaching them life and coping skills. She received training in first aid and CPR and on understanding an individual's Intervention Support Plan, skills she uses with Child. Aunt testified that she and Child have a great relationship and that Child loves her and is happy with her. She says she takes care of all his needs and works on building her relationship with Child by bringing him to school and having a fixed schedule that they follow. According to Aunt, Child understands her expectations for him and has many friends, including his family, school friends, and her best friend's children. Aunt stated that Child had to repeat the second grade when he was placed with her, and school was initially challenging because he had not been in school. But Child adjusted, and his grades went from Cs, Ds and an F to As and Bs. Child received awards at the end of the year and was promoted to the third grade. Aunt testified that Child initially had emotional and behavioral issues and said he needed some space, so Aunt gave him some space. According to Aunt, Child still has those issues but has improved. Aunt claims that Child listens to her because she is consistent, stable, and sets boundaries, while being kind and gentle.

Concerning Child's medical needs, Aunt testified she takes Child regularly to physical therapy to help him stretch his body, occupational therapy to work with his hands and movements and help him write, and mental health therapy to help him develop coping mechanisms. She explained that Child has surgery every two months over his whole body due to complications from his burns and scarring. Child recently had surgery on his face, and he had surgery on his fingers which enabled him to write faster and keep up in class. Child also had surgery on his arm because it was tight, and he can now move his arm normally. His next big surgery was scheduled to be on his feet to split the toes apart as he can barely move them. Aunt testified that the surgery on his feet was scheduled for next summer so he could finish school before the two-month recuperation period. Child wants the surgeries because he dislikes how he looks, and he is happy about the changes. Aunt testified that Child is basically on bed rest for four to five days after surgery as he is sore and can barely walk, and she needs to help him to the bathroom, wash him, and encourage him emotionally. Aunt testified that Mother also did not think Child needed mental health therapy because she thought nothing was wrong with him and that Mother became irate when Aunt had a crown put on one of Child's teeth. Mother thought that the tooth should have been pulled instead of putting a crown on it. Aunt stated that Mother initially agreed with placing Child with her, but their relationship later deteriorated because they disagreed about what was best for Child. Aunt confirmed that Child had spoken to Father when he called from prison and that she had not observed any negative reaction afterward. She testified that Father would be released from prison in October 2025 and that she would follow court orders limiting his access to Child. Aunt agreed that Child should have some relationship with both of his parents.

c. Mother's Testimony

Mother testified that she has never used an illegal drug. Although the evidence shows that she had one positive drug test, we presume for the purposes of our analysis that this was a false positive and that Mother has never used illegal drugs. Mother testified that Boyfriend is her “husband,” but then she said she is no longer in a relationship with him, although she has contact with him on and off. Mother said she was not married to Boyfriend “on paper” but that Boyfriend was her husband “before community and before God.” Mother also testified that she no longer considers herself married to Boyfriend and that she was no longer dating him. Mother testified that she last talked to Boyfriend some weeks ago and that he still checks on her. Mother testified that about two years into her relationship with Boyfriend she learned that he was a sex offender. Mother claimed she had never seen Boyfriend punch Child. Mother says that if Child is returned to her she will respect his wishes and not have Boyfriend around him. Mother testified that Child never told her that Boyfriend was hitting him. When the attorney ad litem for Child asked Mother at trial if she could ask about when Mother ended her relationship with Boyfriend, Mother answered, “Absolutely not. ‘Cause I don't trust you.” When asked if Mother could tell the jury when she ended her relationship with Boyfriend, Mother answered, “I'm not going to answer that.”

In January 2021 Mother, Boyfriend, and Child were taking a nap in Mother's apartment. Mother awoke to discover that there was a fire in the kitchen. She tried to put the fire out herself. Then she returned to get Boyfriend, and the two of them tried to put the fire out, while Child was still asleep in the bedroom. They were unable to extinguish the fire. According to Mother Boyfriend told her to leave the apartment and that he would get Child, and Mother left without the Child. Shortly after Mother left the apartment, the door was engulfed in flames, and Boyfriend and Child were trapped inside. Mother suffered burn injuries to her arms and lower back from the heat outside the apartment. A firefighter rescued Child from the apartment. Mother, Child, and Boyfriend were hospitalized due to their injuries. According to Mother there was not much they could do for her and “[t]hey just wrapped [her] up in gauze.” Mother did not find out where Child was located until nine days after the fire, and she does not know why it took her so long to find out where Child was. Between November 2021 and March 2024 Mother did not take Child to the hospital for any surgery or appointments. According to Mother “There was not an emergency for the surgery and ․ they kept pushing his dates back. I was attempting to take him to his surgeries and I also was working at [a pawn shop].”

Mother asked the jury to return Child to her home. She indicated her relationship with Child was not the same as before his removal, but she stated that there was no reason that the relationship could not be repaired while Child lived with her. Mother stated that during this case she has participated in parenting programs in which she learned to be more patient with Child. Mother stated that she preferred to homeschool Child, as she had done in the past but that she was open to public school if that is what Child prefers. Mother stated that if she is granted sole managing conservatorship over Child, she would want Child to have “absolutely no contact” with Aunt.

d. Williams's Testimony

Theodore Williams Jr., a Department caseworker, was brought into this case in January 2025 to communicate with Mother and align services for her. Initially, he coordinated the psychological examination, continuing individual therapy, and weekly virtual visits between Mother and Child. Williams testified he started with virtual visits and then tried to facilitate visits in Missouri at the Department's expense, or a location halfway, but Mother eventually made it clear that she would only participate in visits locally. Williams testified the in-person visits began a few months earlier, supervised by a professional clinician, due to the “tumultuous” virtual visits. He confirmed Mother had made some progress. He testified that Mother began individual therapy and that the therapy is beneficial.

Williams described Boyfriend as Mother's “significant other,” though she claimed they were no longer in a relationship. Willaims met with Boyfriend in late July 2025 when Boyfriend had his monthly check-in with probation. During this meeting, Williams gave Boyfriend a Landry's card to give to Mother that she had left at a visit, and Boyfriend took the card. Concerning other indications of their ongoing relationship, Williams testified that there was one occasion in mid-July 2025 where he saw Boyfriend going up to Mother's apartment with her, explaining he knew it was Boyfriend by his distinct jewelry and easily identifiable body shape. On cross-examination Williams stated that he is 95% certain that the man he saw going up to Mother's apartment was Boyfriend. In May 2025 Williams checked the sex offender website and saw that Boyfriend's address was listed as “transient in Galveston.”

Williams testified that Mother's continued relationship with Boyfriend presents a “safety concern” because Boyfriend is believed to be the person that assaulted Child. Williams testified that sometimes Mother loses her temper. According to Williams, Mother's inability to consistently regulate her emotions is problematic because Child tends to express himself by acting out, and if Mother is not calm when he does so, it could lead to very bad situations. Williams acknowledged that Child had experienced trauma in his life, including a fire that burned 40% of his body, causing scars that are still visible and creating special needs which involve a psychological, emotional, and medical component involving surgeries to adjust the burns.

He testified that Child's medical records show that he had not been seen from November 2021 until the Department took custody of him in early 2024. Williams confirmed that the Department had addressed Child's medical needs, as far as his burns are concerned, since he had been in the agency's care.

e. Sonnier's Testimony

Kate Sonnier works as a court appointed special advocate (“CASA”) who advocates for the best interests of children in foster care. She is the CASA assigned to this case, and the trial court also appointed her as Child's guardian ad litem. She testified that Child was receiving ongoing surgeries due to the burns he sustained as well as occupational and physical therapy. Sonnier expressed concern that Mother would not get Child the medical care he needed because Mother told Sonnier that she stopped taking Child to a local children's hospital because she did not like the way she was being treated there. Sonnier testified she had observed one in-person visit and seven virtual visits between Mother and Child. When asked how Mother interacts with Child, Sonnier responded, “[n]ot very well” explaining that “She's argumentative with him, she blames him a lot, she doesn't take redirection very well. She has to be redirected often. Her -- they do not have a very good relationship right now.” Sonnier did not believe the visits were healthy for Child, and she had concerns about his emotional well-being. She opined that Mother could not provide Child with a safe and stable home and had concerns about her capacity to be protective of Child. Sonnier heard Mother testify at trial that she was no longer in a relationship with Boyfriend, but Sonnier does not think this statement is true because Mother testified that she still talks to Boyfriend. Sonnier does not think it would be safe for Child to return to Mother's home if Boyfriend is still around.

Sonnier testified that at a July 23, 2025 visit, Mother started yelling, mainly at Williams, because she was upset with him about his redirection and wanted to continue what she had been talking about. Sonnier stated that Mother had been talking about Child coming to live with her and about Boyfriend not being mad at Child. Mother criticized Child's clothes and weight and said negative things about Aunt. Sonnier testified that it was in Child's best interest to continue living with Aunt.

f. Paelicke's Testimony

Vanessa Paelicke is a licensed clinical social worker with her own private practice as well as a contract with the Department. She stated that Mother completed the Empowering Families Support Group class with her agency in June 2025. According to Paelicke Mother participated very much in the class, talked about past challenges with Child's behavior, and talked about things that she could do to achieve positive change. Paelicke testified that Mother has been doing individual counseling with Valerie Zanders, one of the therapists on her team. Paelicke was asked to be present for visits between Mother and Child and to provide family therapy. Paelicke confirmed that Mother successfully completed individual counseling but later agreed to resume it as recommended in her psychiatric evaluation. Paelicke explained the first visit on August 6, 2025, took place at Mother's home with only herself and Child present. The scheduled three-hour visit lasted only one hour and ten minutes before it had to be ended. During the visit, both Mother and Child seemed agitated and upset at times. Child was very concerned that Boyfriend was in the home, but Mother told him that Boyfriend was not there. Child told Mother he loved her but that he did not want to return to her home. Child said he wanted to stay with Aunt. Mother spoke about her issues with Aunt in front of Child. Child wanted to put on some shoes that were in the house. Mother said he could do so if his behavior was good. Child wore the shoes for about 30 minutes, but then Mother started feeling that Child was being rude to her, and he did not want to look at some biblical readings that she had for him. So Mother took the shoes off Child's feet. Child became upset and starting cursing. The conversation escalated into a verbal altercation. Ultimately Child left the house and walked down the street, followed by Paelicke, and the visit ended.

Paelicke testified that the next visit occurred on August 13, 2025, and lasted one and a half of the scheduled three hours. As Paelicke, Mother, and Child were about to enter Mother's home, they encountered Mother's neighbor, and an argument ensued between Mother and the neighbor. After the neighbor left, Mother was upset, and Paelicke thought this was because of the argument with the neighbor. Child gave Mother a hug and a kiss and said that he loved Mother. Mother started crying and asked why Child did not want to return to her home. Child then mentioned that Boyfriend “would whup” Child. Mother did not comment on Child's statement. The conversation afterward became increasingly strained as Mother questioned Child about his telling people that she “whupped him” until Child went out on the porch, screamed, and then came back inside. Child put his hands on top of Paelicke's hands and stated, “I'm literally begging you to end this visit.” Paelicke called the caseworker to come and get Child. Mother took a photo of Child as they were leaving, which upset him. While Paelicke and Child were waiting in Paelicke's car; Mother came outside to get the shoes that she had let Child wear during the visit. Child threw the shoes at Mother and screamed, “I hate you.”

Paelicke testified that the next visit occurred on September 15, 2025. It was scheduled to be at Mother's home, but the location was changed to a library because Mother said she tore up her house looking for documents and did not want anyone in her home. The visit was scheduled to last for three hours but only lasted an hour and forty minutes. Before they went from outside the home to the library Mother got into a heated 5-10-minute argument with the neighbor. When they arrived at the library, Paelicke described Child as “very frustrated.” Child had told Mother that he did not want to be around her, and he began shaking a trash can in the room. Child indicated that he was angry because Mother and Boyfriend had “whupped” him in the past and because Mother had left him in a fire. Eventually they left the library and Child walked down the street away from Mother and Paelicke, and the visit ended.

Paelicke explained that the last visit took place at a local recreation center on September 27, 2025, just a few days before her testimony, and lasted eight minutes longer than the schedule duration of three hours. She testified that Mother and Child talked and interacted more during this visit, but it ultimately ended when Child threw his drink down, refused to pick it up when Mother asked him to, Mother put her hands on his cheeks and leaned in just inches from his face, and Child defecated on himself. Paelicke indicated that there were other ways that Mother could have handled that situation than the way she did, and Mother left the visit without saying anything when Child went to a bathroom to clean himself up. Paelicke testified that Mother occasionally used the techniques she was taught in Empowering Families. She testified that Mother and Child had been separated for some time and that they would likely need counseling for a significant period to rebuild their bond.

g. Cisneros's Testimony

Department Investigator Tammy Cisneros testified at trial regarding her investigation of the allegation that on February 22, 2024, in a library in Galveston, Boyfriend had punched Child in the face, leaving a mark and that Child was being left unsupervised in the library. After Cisneros discussed the allegations with Mother, Mother said she had been told that the cut on Child's forehead was an accident and that she had not been told that Boyfriend had punched Child. Cisneros saw a cut on his forehead that appeared to be recent, and photographs of Child showing that cut were admitted into evidence at trial. Child told Cisneros that Boyfriend had hit him in the stomach and face before and that Boyfriend had hit him on the forehead the previous day. Child told Cisneros he was scared and did not feel safe around Boyfriend. Child also told Cisneros that they sometimes did not have food to eat. Cisneros testified that Boyfriend appeared to be under the influence of something when she spoke to him. On March 15, 2024, Cisneros discussed with Mother her Child's statement that Boyfriend had punched him and that the Department had concerns for Child's safety. Mother said, “Well, what am I supposed to do?” Cisneros testified that Mother's response raised concerns that she was not being protective of Child and that she was not taking it seriously that Boyfriend injured Child by punching him and that Child was scared of Boyfriend. Mother would not agree to a safety plan under which Mother and Child would go to a shelter and have limited contact with Boyfriend. Child told Cisneros that Boyfriend had hit him on the head with an open hand since he saw her last, that they had been living in the car, and that he had not eaten that day. Cisneros testified that the first time she visited Child after removal he said he missed Mother and that he wanted to go home. Cisneros said that the first few visits between Mother and Child after Child had been placed in foster care were fine.

h. Fuller's Testimony

Dr. Michael Fuller, a psychiatrist, testified he completed a diagnostic evaluation of Mother on July 20, 2025, which involved a 1.5-hour interview during which he administered the following tests: mental status exam, information-gathering, psychiatric interview, and Montreal Instrument for cognitive function. Fuller stated that his diagnostic impression of Mother was that she had adjustment disorder with features of anxiety and depression, which he described as an individual who is not coping effectively with presented stresses. He also gave Mother a diagnosis of chronic post-traumatic stress disorder (“PTSD”), explaining this results from overwhelming trauma that was inescapable and was essentially seared into Mother's psyche, resulting in horror, fear, and distrust. Fuller testified that Mother's primary stressor was being separated from Child and that she also discussed being sexually assaulted and being in a near-fatal house fire. Fuller stated Mother had been hospitalized once or twice complaining of distress. He advised that medications may help her and recommended she seek family therapy and psychotherapy for her PTSD and to improve her flash anger and coping skills. Fuller opined that there was little evidence to suggest that Mother had bipolar disorder, while acknowledging people with bipolar can have flash anger as Mother does. Fuller observed Mother having difficulty controlling herself during her trial testimony and supported her receiving more therapy.

i. Zanders's Testimony

Dr. Valerie Zanders, a licensed clinical social worker, testified that Mother had been a client since June 2025 and that Zanders worked with her weekly on parenting skills, emotional regulation, and healthy coping. Zanders stated that Mother attended regularly and was actively engaged in the sessions. Based on interviews with Mother and past counseling records, Zanders diagnosed Mother with mixed anxiety and depressive disorder. That diagnosis means that Mother exhibits bouts of anxiety and depression. Zanders had not observed manic mania or hypomania associated with unspecified bipolar disorder.

j. Moore-Chambers's Testimony

Dr. Robin Moore-Chambers is a behavioral health provider, counselor, and psychologist who works with children in trauma. She has been practicing as a licensed professional counselor for 20 years. She has served as Child's therapist. Her first session with Child was in May 2025, and she has had a total of fifteen sessions. She had sessions with Child and Mother. She was asked to serve as the reunification therapist to help them deal with many of their challenges to try to reunify Child with the Mother. She stated that Mother would raise her voice, yell, say negative things to the Child, blame him, and talk badly about his relationship with his paternal side of his family. Moore-Chambers had to end the second session abruptly because she could not get Mother to adhere to restraint, and Child was clearly traumatized. Child was disrespectful as well, but after Child complied with Moore-Chambers's requests to restrain and to lower his voice and to be respectful, Child said that he wanted to visit Mother but did not want to live with her. Mother responded to Child's statement by saying “[t]hen I don't want you to come visit me at all.” During one session Child stated that he thought Mother had left him in the fire. Moore-Chambers told Child that she did not think that Mother left him in the fire to be burned.

Child said he was afraid to live with Mother because Boyfriend was abusive to him. Child said that if he was forced to live with Mother, he was going to kill himself with a knife. Moore-Chambers said she believed that Child would try to harm himself if he was forced to live with Mother. Moore-Chambers also said she thinks that Child could eventually go home and live with Mother but that there needs to be additional counseling for Mother and Child. Moore-Chambers does not believe that it is in the best interest of Child to be reunified with Mother right now because she believes that there has been no progress with Mother's behavior towards Child and that it is very volatile. According to Moore-Chambers each time Child comes back, it seems to be worse than the time before. There has not been an intervention yet that has helped Mother to know how to curtail, how to set the tone for a positive visitation with the Child, or how to talk about positive things. Moore-Chambers talked to Child about his current placement, and he said he likes living with his aunt and feels safe there.

k. Butler's Testimony

Dr. Eboni Butler testified she has a doctorate in clinical psychology and is licensed as a clinical psychologist and as a professional counselor supervisor. She confirmed she performed a psychological evaluation on Mother in June 2025. Butler diagnosed Mother with unspecified bipolar disorder, with characteristics that are on the lower end of a full diagnosis. Butler disagrees with Comprehensive Treatment Solutions's diagnosis of Mother as having depression, anxiety, and adjustment disorder. Butler recommended parenting classes, individual therapy, a comprehensive psychiatric evaluation, and continued supervised visits with Child.

l. Analysis of the Evidence

To prove that appointment of Mother as managing conservator of Child would significantly impair the Child's physical health or emotional development the Department must offer evidence of specific actions or omissions of Mother that demonstrate an award of custody to the parent would result in physical or emotional harm to Child. See Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). Based on the trial evidence a reasonable factfinder could form a firm belief or conviction that the following matters are true: (1) Mother still is in a relationship with Boyfriend, a registered sex offender; (2) when Child was living with Mother, and while they were in a public library, Boyfriend punched Child with his fist in a part of his face that has a scar from Child's burn injuries from the fire; (3) when Child was living with Mother, Boyfriend punched Child in the stomach and slapped him; (4) in the fire Child suffered burns over 40% of his body, causing scars that are still visible and creating special needs which involve a psychological, emotional, and medical component involving surgeries to adjust the burns; (5) Mother and Child have an acrimonious relationship for various reasons, including anger by Child resulting from Boyfriend hitting him and Child's belief that Mother left him in the fire; (6) Aunt is meeting Child's medical, emotional, and physical needs and will do so in the future; (7) Child is doing well in his placement with Aunt and says he wants to continue living with Aunt; (8) Child has threatened to kill himself if he is forced to go back to living with Mother; and (9) Mother engaged in the following specific actions or omissions that demonstrate an award of custody to Mother would result in physical or emotional harm to Child: (a) Mother failed to protect Child from Boyfriend's violence;¹¹ (b) while Child was in her care Mother failed for 29 months to pursue medical treatments and surgeries to improve the Child's scars and increase his mobility; and (c) while the Child was in her care Mother failed to maintain a stable and safe home for Child. See In re R.A.L., No. 01-24-00347-CV, 2024 WL 4455599, at *14–16 (Tex. App.—Houston [1st Dist.] Oct. 10, 2024, no pet.) (mem. op.); In re M.L., No. 02–15–00258–CV, 2016 WL 3655190, at *3–4 (Tex. App.—Fort Worth Jul. 7, 2016, no pet.) (mem. op.).

Looking at all the evidence in the light most favorable to the jury's answer to Question No. 1, presuming that the jury resolved disputed facts in favor of its findings if a reasonable factfinder could do so, disregarding all evidence that a reasonable factfinder could have disbelieved or found to have been incredible, we conclude that a reasonable trier of fact could have formed a firm belief or conviction that each of the following findings is true: (1) that appointment of Mother as Child's sole managing conservator would significantly impair Child's physical health or emotional development; (2) that denial of the relief requested by the Department would significantly impair Child's physical health or emotional development; and (3) that naming the Department as sole conservator of the Child was in the Child's best interests. See In re J.F.C., 96 S.W.3d at 266;In re R.A.L., 2024 WL 4455599, at *14–16; In re M.L., 2016 WL 3655190, at *3–4.

Giving due deference to fact findings, not supplanting the jury's judgment with our own, and reviewing the entire record, we conclude that the disputed evidence that a reasonable factfinder could not have credited in favor of the finding is so not significant that a factfinder could not reasonably have formed a firm belief or conviction about the truth of the following findings: (1) that appointment of Mother as Child's sole managing conservator would significantly impair Child's physical health or emotional development; (2) that denial of the relief requested by the Department would significantly impair Child's physical health or emotional development; and (3) that naming the Department as sole conservator of the Child was in the Child's best interests. See In re H.R.M., 209 S.W.3d 105, 108 (Tex. 2006); In re J.F.C., 96 S.W.3d at 266; In re R.A.L., 2024 WL 4455599, at *14–16; In re M.L., 2016 WL 3655190, at *3–4; In re W.H.M., 2003 WL 22254713, at *7–11 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied).

Thus, we have determined that the trial evidence is legally and factually sufficient to support the jury's answer to Question No. 1 and its implied findings that (1) that appointment of Mother as Child's sole managing conservator would significantly impair Child's physical health or emotional development; (2) that denial of the relief requested by the Department would significantly impair Child's physical health or emotional development; and (3) that naming the Department as sole conservator of the Child was in the Child's best interests. See In re H.R.M., 209 S.W.3d at 108; In re J.F.C., 96 S.W.3d at 266; In re R.A.L., 2024 WL 4455599, at *14–16; In re M.L., 2016 WL 3655190, at *3–4; In re W.H.M., 2003 WL 22254713, at *7–11.

3. Mother's challenges to the legal and factual sufficiency of the evidence supporting the trial court's findings regarding conservatorship

Thinking that Family Code section 153.002(c) applied in today's case and seeking to comply with the requirements of that statute, the trial court stated in its final order as follows:

The Court finds by clear and convincing evidence that the parental presumption has been rebutted and that placement of the [Child] with [Mother] and/or [Father] would significantly impair the [Child's] physical health or emotional development which demonstrates that the parents cannot adequately care for the child as follows:

[listing ten items]

For the reasons stated above, denying the relief of the Department as requested, [sic] would significantly impair the [Child's] physical health or emotional development.

The trial court included similar language in its findings of fact and conclusions of law, adding more items to the list.

On appeal Mother argues that the trial evidence is legally and factually insufficient to support these trial court findings. As discussed in section II.A.1. above, section 153.002(c) does not require the trial court to make these findings or to state these specific facts in a jury case, in which the jury makes these findings, and any challenges to the sufficiency of the evidence should be made to the jury findings not to any trial court findings. See Tex. Fam Code Ann. § 105.002(c); In re H.L., 2016 WL 354080, at *6. Therefore, we do not address Mother's challenges to these findings and statements of specific facts.

Having found no merit in any of Mother's arguments under the issue, we overrule the first issue.

C. Is the trial court's alleged error in admitting evidence harmless?

Under Mother's third issue she argues that the trial court reversibly erred in (1) allowing Dr. Moore-Chambers to testify at trial by videoconference over Mother's objection that section 30.012(b) of the Civil Practice and Remedies Code ¹² precludes Moore-Chambers from testifying at trial by videoconference because Mother objects to her doing so and it is undisputed that Moore-Chambers has not been deposed; (2) allowing Moore-Chambers to testify as to her opinion that Mother and Child should not be reunified at this time over Mother's objection that this opinion had not been timely disclosed by the Department; (3) allowing Moore-Chambers to testify as to her expert opinions because these opinions were unreliable and not supported by sufficient facts; and (4) allowing Dr. Butler to testify as to her expert opinions because these opinions were unreliable and not supported by sufficient facts. Under the fourth issue, Mother argues that (1) the trial court reversibly erred in admitting into evidence Petitioner's Exhibit 17A containing eight photographs of Child showing his burn wounds shortly after the fire, over Mother's objections that the photos are irrelevant, their probative value is substantially outweighed by the danger of unfair prejudice, and that the admission of the photographs violates her due process rights; and (2) the trial court reversibly erred in sustaining the Department's objection that a Department “Placement Summary” document was irrelevant and excluding it from evidence. We presume, without deciding, that the trial court erred in each of these ways, and we proceed to address harm.

Reversal of the trial court's judgment based on the trial court's erroneous admission or exclusion of evidence is warranted only if the error probably resulted in the rendition of an improper judgment. See Tex. R. App. P. 44.1; U-Haul Int'l, Inc. v. Waldrip, 380 S.W.3d 118, 136 (Tex. 2012). The Supreme Court of Texas has concluded that it is not possible to prescribe a specific test for harmless-error review. See U-Haul Int'l, Inc., 380 S.W.3d at 136. In conducting a harm analysis, courts must evaluate the entire case from voir dire to closing argument, considering the evidence as a whole, the strength or weakness of the case, and the verdict. Id. In determining whether the erroneous admission or exclusion of evidence probably led to an improper judgment, courts look to the role the evidence played in the context of the trial and the efforts made by counsel to emphasize the erroneous evidence, as well as whether contrary evidence existed that the improperly admitted evidence was calculated to overcome. Id.

1. The Admission of Moore-Chambers's Testimony

We described Moore-Chambers's Testimony in section II.A.2.j. above. Moore-Chambers had sessions with Child and Mother in which Mother raised her voice, said negative things to the Child, and talked badly about his relationship with his paternal side of his family. Moore-Chambers had to end the second session abruptly because she could not get Mother to adhere to restraint, and Child was clearly traumatized. Similar testimony about Mother's negative and disruptive behavior during visits was offered by Sonnier, the CASA and guardian ad litem, Paelicke, the social worker who provided family therapy, and by Child. Moore-Chambers testified that Child once said that he thought Mother had left him in the fire. Paelicke offered similar testimony. Moore-Chambers said that Child told her he was afraid to live with Mother because Boyfriend was abusive to him. Investigator Cisneros and Child provided similar testimony. According to Moore-Chambers Child stated that he likes living with Aunt and feels safe there. Child made similar statements during his testimony. Moore-Chambers stated that she does not believe that it is in the best interest of Child to be reunified with Mother right now. Sonnier offered the same opinion during her testimony. Sonnier is the guardian ad litem and CASA, a disinterested third party whose job is to advocate for the Child's best interest. No witness explicitly stated that it would be in Child's best interest for Mother to be his sole managing conservator or for Child to live with Mother. Mother stated she wanted Child to move back to her home and live with her, indicating that this action would be in Child's best interest. Child emphatically stated during his testimony that he did not want to move back to Mother's home. According to Moore-Chambers, Child said that if he was forced to live with Mother, he was going to kill himself with a knife, and Moore-Chambers said she believed that Child would try to harm himself if he was forced to live with Mother. Child also stated during his testimony that he would “destroy” himself if he was forced to live with Mother, which is compelling testimony coming from the person who is threatening suicide. Moore-Chambers's testimony in this regard adds that he says he will kill himself with a knife and that she believes he would try to harm himself. On the other hand, Moore-Chambers also testified that she thinks that Child could eventually go home and live with Mother but that there needs to be additional counseling for Mother and Child. During closing argument, Moore-Chambers was mentioned three times: (1) Father's counsel mentioned Moore-Chamber in a list of trial witnesses; (2) the attorney ad litem mentioned Moore-Chambers's testimony about Child's threat to kill himself right after she mentioned Child's testimony about this threat, and (3) the Department's lawyer mentioned Moore-Chambers's testimony that she had had 15 therapy sessions with Child.

2. The Admission of Butler's Testimony

Butler's testimony was not that long, and she mainly testified regarding her psychological evaluation on Mother and her diagnosis of Mother with unspecified bipolar disorder, with characteristics that are on the lower end of a full diagnosis of bipolar disorder. Though “bipolar disorder” sound as if it might weigh heavily in support of the Department's case, Butler diagnosed Mother with “unspecified bipolar disorder,” which according to Butler means that many of the traits associated with “bipolar disorder” need not be present. Comprehensive Treatment Solutions diagnosed Mother with depression, anxiety, and adjustment disorder rather than “unspecified bipolar disorder,” but by the end of Butler's testimony, it was not clear that there was that much difference between the two diagnoses. Fuller, a psychiatrist, testified that he did not think that “unspecified bipolar disorder” was a correct diagnosis for Mother, and Zanders testified that she did not observe Mother displaying the symptoms of “unspecified bipolar disorder.” The only lawyer who mentioned Butler's testimony during closing was Mother's lawyer, who mentioned the testimony contrary to Butler's diagnosis and suggested that Butler has a conflict of interest because she allegedly gets half of her business from work for the Department.

3. The Admission of Photographs of Child's Burn Wounds

Petitioner's Exhibit 17A contained eight photographs of Child showing his burn wounds shortly after the fire. The photographs are graphic, and they show second and third degree burns. Other, more recent photographs admitted into evidence show some of the scars that Child has as a result of these burns. Mother argues that the graphic nature created a substantial risk that the jury would decide this case on an emotional basis by seeking to punish Mother for Child's burn injuries rather than by determining whether the required showing of significant impairment had been made.

Before these photos were published to the jury, the trial court gave the following limiting instruction:

With regards to Petitioner's 17A, you are being instructed that these pictures are graphic and of a sensitive nature, so I want you to be prepared for them when you see these pictures up on the screen. As well, you're also instructed that these pictures are being offered for the limited purpose of showing the trauma that [Child] experienced. They are, in no way, implying either directly or indirectly that [Mother] was responsible for the fire or the injuries sustained by [Child.] These are being offered for the limited purpose of you understanding the extent of his injuries, the trauma that he faced in the fire.

Mother argues that this instruction did not cure the trial court's error in admitting the photos because there was much testimony at trial regarding the fire, and the State argued that Mother did not get treatment for Child's scars after November 2021, thus allegedly violating the limiting instruction by inviting the jury to attribute blame to Mother and infer neglect. This argument lacks merit. Trial testimony as to the facts of the fire or as to Mother's failure to take Child for treatment of his scars does not invite the jury to consider the photos for a purpose other than the limited purpose mentioned in the trial court's instruction, nor does it constitute evidence that the jury did so. We must presume the jury followed the trial court's limiting instruction; therefore, any potential harm arising from the admission of the photos into evidence was cured by this instruction. See In re Commitment of Langford, No. 01-18-01050-CV, 2019 WL 6905022, at *4–5 (Tex. App.—Houston [1st Dist.] Dec. 19, 2019, no pet.) (mem. op.).

4. The “Placement Summary”

On appeal Mother asserts the trial court reversibly erred in excluding a “Placement Summary” document that the Department generated for Child's foster parents three days after he was taken into Department custody and after he underwent a three-day medical checkup at which no medical conditions were allegedly noted. According to Mother this evidence directly contradicts the Department's theory that Mother delayed necessary medical treatment for Child. This thirteen page document lists a variety of information about Child in different sections. In the “Medical” section “UTMB 3/15/24 for 3 Day” is written in the space for the “name of primary care physician.” A negative response is listed for the questions (1) Does the child/youth have special medical equipment or supplies? and (2) Was an immunization record provided? Otherwise, all of the other blanks in the medical section of the form are not filled in, including blanks following these items: (1) “Does child/youth have any medical conditions (Identify as acute/chronic)?” And (2) “Future appointment Information/Follow up:” It is not clear whether this document is saying that Child has no medical conditions and medical appointments or whether that part of the form was left blank.

Some of the foregoing evidence is not very probative of the issues submitted to the jury. Some of the foregoing evidence is similar to other evidence whose admission has not been challenged. There was substantial trial evidence producing a firm belief that appointing Mother, rather than the Department, as Child's sole managing conservator would significantly impair Child's physical health or emotional development and that the best interest of the Child is for the Department to be appointed sole managing conservator. After evaluating the entire case from voir dire to closing argument, and considering the evidence as a whole, the strength or weakness of the case, and the verdict, we conclude that, both separately and collectively, the trial court's presumed error in admitting or excluding the foregoing evidence did not probably result in the rendition of an improper judgment. See Tex. R. App. P. 44.1; In re A.P., No. 02-22-00180-CV, 2022 WL 16646478, at *15 (Tex. App.—Fort Worth Nov. 3, 2022, no pet.) (mem. op.); In re G.P., No. 01-16-00346-CV, 2016 WL 6216192, at *24–29 (Tex. App.—Houston [1st Dist.] Oct. 25, 2016, no pet.). Therefore, we overrule the third issue and the part of the fourth issue dealing with the photographs and the Placement Summary.

D. Did the trial court abuse its discretion in refusing to allow a psychiatrist to testify about the general nature of burns and scars?

Under her fourth issue, Mother also argues that the trial court abused its discretion by refusing to allow Dr. Fuller, a psychiatrist who has practiced psychiatry for many years, to testify as to how long a burn patient generally has to wait for scars to heal before having further surgeries to deal with the scars. Dr. Fuller is a psychiatrist, not a burn doctor. Mother's counsel stated that Fuller has not examined Child, and he would not be giving a specific opinion about Child. Mother argued that Fuller may give this testimony based on the medical degree that he obtained in the 1980s and his work as an occupational therapy assistant in a burn center during the 1970s. The trial court sustained the Department's objection that the testimony was speculative, and the trial court refused to allow Dr. Fuller to testify on this subject. We conclude that the trial court did not abuse its discretion in doing so. See Broders v. Heise, 924 S.W.2d 148, 152–53 (Tex. 1996).

Having found no merit in all of Mother's arguments under the fourth issue, we overrule that issue.

E. Did the trial court abuse its discretion in ordering Mother to pay $227.11 per month in child support?

In her fifth issue Mother argues that the trial court abused its discretion in ordering her to pay $227.11 per month in child support because no trial evidence supports a finding that Mother is financially able to pay child support and because the trial court failed to make child-support findings as to Mother. We review a trial court's decisions regarding conservatorship or the terms of possession of and access to a child under an abuse-of-discretion standard. See In re H.D.C., 474 S.W.3d 758, 763 (Tex. App.—Houston [14th Dist.] 2014, no pet.). A trial court abuses its discretion if it acts arbitrarily, unreasonably, or without reference to any guiding rules or principles. See id. Under an abuse-of-discretion standard, legal and factual insufficiency are not independent grounds of error but rather are relevant factors in assessing whether the trial court abused its discretion. Id. There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's exercise of its discretion. Id.

Family Code section 154.068 provides as follows:

(a) In the absence of evidence of a party's resources, as defined by Section 154.062(b), the court shall presume that the party has income equal to the federal minimum wage for a 40-hour week to which the support guidelines may be applied.

(b) The presumption required by Subsection (a) does not apply if the court finds that the party is subject to an order of confinement that exceeds 90 days and is incarcerated in a local, state, or federal jail or prison at the time the court makes the determination regarding the party's income.

Tex. Fam Code Ann. § 154.068 (West, Westlaw through 2025 2d C.S.). At trial there was no evidence of Mother's resources or incarceration, therefore the trial court was bound under Family Code section 154.068 to presume that Mother has income equal to the federal minimum wage for a 40-hour week to which the support guidelines may be applied. See id.; In re E.D.F., No. 7-12-00470-CV, 2014 WL 5141652, at *4 (Tex. App.—Amarillo Oct. 9, 2014, pet. denied) (mem. op.). Notwithstanding Mother's assertion to the contrary, in its findings of fact and conclusions of law, the trial court made findings regarding child support. The trial court found that Mother is capable of working 40 hours and earning minimum wage. Based on the presumption under Family Code section 154.068, the trial court found that the net resources of Mother per month are $1,135.54 and that the percentage applied to these net resources for child support is 20%. Mother has not challenged any of these findings on appeal. Multiplying this percentage by Mother's net resources yields a monthly child support amount of $227.11, which is what the trial court ordered. Mother argues that no trial evidence supports a finding that Mother is financially able to pay child support. Presuming for the sake of argument that this assertion is true, the absence of such evidence would not show that the trial court erred in ordering Mother to pay child support based on the income presumption under Family Code section 154.068. See Tex. Fam Code Ann. § 154.068; In re E.D.F., 2014 WL 5141652, at *4. Instead, the relevant issue is whether any trial evidence rebutted the presumption that Mother has income equal to the federal minimum wage for a 40-hour week to which the support guidelines may be applied. See Tex. Fam Code Ann. § 154.068; In re E.D.F., 2014 WL 5141652, at *4. Mother cites to no such evidence. In the absence of evidence rebutting this presumption, the trial court did not abuse its discretion in ordering Mother to pay $227.11 per month in child support. See Tex. Fam Code Ann. § 154.068; In re E.D.F., 2014 WL 5141652, at *4; In re E.L.C., No. 04-04-00698-CV, 2005 WL 1277345, at *1 (Tex. App.—San Antonio Jun. 1, 2005, no pet.) (mem. op.).

F. Did the trial court abuse its discretion by restricting Mother's possession of and access to Child?

In the fifth issue Mother also argues that the trial court abused its discretion by ordering the restrictions it imposed on Mother's possession of and access to Child (“Restrictions”) because this ruling is not supported by legally or factually sufficient evidence. In its final order the trial court stated that Mother should be provided with possession and access to the Child as provided in the final order and that this possession and access does not exceed the restrictions needed to protect the best interest of the Child. The trial court ordered that absent mutual agreement otherwise, Mother have two in-person visitation periods per month with Child—a three-hour in-person visitation period in Texas on the third Saturday of each month with a therapist present and an in-person weekend visit in Missouri, at Mother's option, for four hours of supervised visitation on Saturday and Sunday, with Mother's travel expenses paid by the Department. The trial court also ordered that weekly virtual visitation between Mother and Child.

There is a rebuttable presumption that the standard possession order provides the reasonable minimum level of possession and access for a parent named possessory conservator and is in the best interest of the child. Tex. Fam Code Ann. § 153.252 (West, Westlaw through 2025 2d C.S.). When determining whether to deviate from the standard possession order, a court may consider “(1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor.” Id. § 153.256. Importantly, the terms of an order that deviates from the standard possession order—that is, an order that “denies possession of a child to a parent or imposes restrictions or limitations on a parent's right to possession of or access to a child”—“may not exceed those that are required to protect the best interest of the child.” Id. § 153.193; In re J.J.R.S., 627 S.W.3d 211, 218–19 (Tex. 2021).

In its findings of fact and conclusions of law the trial court stated as follows:

[Mother's] right of access to [Child] should be restricted.

․

After reunification therapy, the relationship [between Mother and Child] is volatile․

The significant difficulties in the reunification process must be worked out for [Child] to have unsupervised access with [Mother] and for return to [Mother];

The relationship between [Mother] and [Child] is not an appropriate relationship, which results in [Child] leaving the visits and having issues controlling his bowels during possession with [Mother];

[Child] should have supervised access with [Mother];

The reunification therapist should continue to be involved to assist [Mother] and [Child] in re-establishing their relationship.

․

The Court finds by clear and convincing evidence that [its] orders are in the best interest of [Child].

․

The possession order needs to be tailored to [Child's] needs.

Possession and access should occur in Texas and in Missouri.

The Department should pay for travel expenses for [Mother] to visit [Child] in Missouri and for [Child] to visit [Mother] in Texas.

On appeal Mother has not shown any of the following: (1) that the trial evidence is legally or factually insufficient to support the trial court's imposition of the Restrictions; (2) that the trial court erred in determining that the Restrictions do not exceed the restrictions needed to protect the best interest of the Child; or (3) that the trial court abused its discretion by imposing the Restrictions. See In re P.A.C., 498 S.W.3d 210, 216–20 (Tex. App.—Houston [14th Dist.] 2016, pet. denied); In re A.D., 474 S.W.3d 715, 729–31 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

Having found no merit in all of Mother's arguments under the fifth issue, we overrule that issue.

III. CONCLUSION

The trial evidence is legally and factually sufficient to support the jury's answer to Question No. 1 and its implied findings that (1) that appointment of Mother as Child's sole managing conservator would significantly impair Child's physical health or emotional development; (2) that denial of the relief requested by the Department would significantly impair Child's physical health or emotional development; and (3) that naming the Department as sole conservator of the Child was in the Child's best interests. Presuming for the sake of argument that Mother preserved error on her charge-error arguments, Mother has not shown error in the jury charge. Presuming that the trial court erred in (1) allowing Dr. Moore-Chambers to testify at trial, (2) allowing Dr. Butler to testify at trial, (3) admitting into evidence Petitioner's Exhibit 17A, and (4) excluding from the evidence a Department “Placement Summary” document, this error is harmless, whether considered separately or together. The trial court did not abuse its discretion by refusing to allow Dr. Fuller to testify about the general nature of burns and scars. The trial court did not abuse its discretion in ordering Mother to pay $227.11 per month in child support. Mother has not shown that the trial court abused its discretion by imposing the Restrictions. For these reasons, we affirm the trial court's final order.

FOOTNOTES

1.   At trial Mother testified that (1) Boyfriend is her husband; (2) Mother no longer has a relationship with Boyfriend; (3) Mother still has contact on and off with Boyfriend; (4) Boyfriend was not her husband “on paper,” but he was her husband “before community and before God.” The trial evidence raised a fact issue as to whether Mother was still in a relationship with Boyfriend at the time of trial.

2.   The description of various cases that follows is taken from the trial testimony of Tammy Cisneros, a Department investigator. Mother disputed Cisneros's testimony.

3.   At trial Mother denied that she received the form, signed the form, or was told about her rights.

4.   No other party has appealed.

5.   The amendment adding this language to section 153.002 of the Family Code took effect one week before trial in this case began.

6.   The trial court listed the Holley factors:a) The desires of the child;b) The emotional and physical needs of the child now and in the future;c) The emotional and physical danger to the child now and in the future;d) The parenting ability of the individuals seeking custody;e) The programs available to assist these individuals to promote the best interest of the child;f) The plans for the child by these individuals or by the agency seeking custody;g) The stability of the home, or proposed placement; [and]h) The acts or omissions of the parent which may exist that the existing parent-child relationship is not a proper one; and any excuse for the acts or omissions of the parent.See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976).

7.   The trial court listed the following factors from Family Code section 263.307(b):i) the child's age and physical and mental vulnerabilities;j) the frequency and nature of out-of-home placements;k) the magnitude, frequency, and circumstances of the harm to the child;l) whether the child has been the victim of repeated harm after the initial report and intervention by the department or other agency;m) whether the child is fearful of living in or returning to the child's home;n) the results of psychiatric, psychological, or developmental evaluations of the child, the child's parents, other family members, or others who have access to the child's home;o) whether there is a history of abusive or assaultive conduct by the child's family or others who have access to the child's home;p) whether there is a history of substance abuse by the child's family or others who have access to the child's homeq) whether the perpetrator of the harm to the child is identified;r) the willingness and ability of the child's family to effect positive environmental and personal changes within a reasonable period of time; [and]s) whether the child's family demonstrates adequate parenting skills.Tex. Fam Code Ann. § 263.307(b) (West, Westlaw through 2025 2d C.S.).

8.   Texas Family Code section 263.404(a) provides that “The court may render a final order appointing the department as managing conservator of the child without terminating the rights of the parent of the child if the court finds that: (1) appointment of a parent as managing conservator would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development; and (2) it would not be in the best interest of the child to appoint a relative of the child or another person as managing conservator.” Tex. Fam Code Ann. § 263.404(a) (West, Westlaw through 2025 2d C.S.).

9.   Emphasis in original

10.   See footnotes 6 and 7, above.

11.   The issue is not that Mother has been unwilling to end her relationship with Boyfriend, the issue is that she has not been protecting Child from Boyfriend. See In re H.S., No. 24-0307, 2026 WL 1614496, at *11 (Tex. Jun. 5, 2026).

12.   This statute provides as follows:(a) With the agreement of the parties, and subject to Subsection (b), a trial judge may order that a hearing of a preliminary matter or witness testimony at trial may be conducted by electronic means, including satellite transmission, closed-circuit television transmission, or any other method of two-way electronic communication that is available to the parties, approved by the court, and capable of visually and audibly recording the proceedings.(b) Witness testimony at trial in a district or statutory county court may be conducted by electronic means only if the witness is deposed before the commencement of the trial. Neither the court nor any party may waive the requirement to depose the witness under this subsection if any party objects.Tex. Civ. Prac. & Rem. Code Ann. § 30.012 (West, Westlaw through 2025 2d C.S.). The Department did not dispute that if this statute applies Dr. Moore-Chambers may not testify by videoconference. Instead, the Department argued that Texas Family Code section 104.007 applies instead of section 30.012 and that under section 104.007 the trial court may allow Dr. Moore-Chambers to testify by videoconference. See Fam. Code Ann. § 104.007 (West, Westlaw through 2025 2d C.S.). Mother responded that section 104.007 applies to testimony taken outside the courthouse by videoconference and does not apply to testimony given at trial by videoconference.

Randy Wilson Justice