In THE INTEREST OF J.O.L. AND I.C.L., CHILDREN v. the State of Texas

Supreme Court of Texas
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No. 23-0281
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In the Interest of J.O.L. and I.C.L., Children

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On Petition for Review from the
Court of Appeals for the Fourth District of Texas
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JUSTICE LEHRMANN, concurring in the denial of the petition for
review.

This Court recently confirmed that “when nonparents seek
court-ordered custody of a child subject to an existing order, under which
one or both fit parents were appointed managing conservators, that
parent or parents retain the presumption that protects their
fundamental right to determine their child’s best interest.” In re C.J.C.,
603 S.W.3d 804, 819 (Tex. 2020). In this modification proceeding, in
which the trial court appointed the aunt and uncle of the children at
issue as their managing conservators, Mother did not receive the benefit
of the presumption to which she was entitled. Accordingly, I agree with
the court of appeals that the case should be remanded for a new trial,
and I agree with this Court’s denial of Aunt and Uncle’s petition for
review. I write separately to express concern about some inconsistent
and problematic language in the court of appeals’ opinion and to
highlight some necessary considerations in evaluating the children’s
best interest on remand.
In September 2016, the trial court rendered an agreed order
appointing Mother and Father joint managing conservators of their two
children (who at that time were four and three years old, respectively)
and giving Father authority to designate the children’s primary
residence. Father designated Aunt and Uncle’s home as the children’s
primary residence, though there is evidence that the children had been
residing there since 2013. Since the 2016 order, Aunt and Uncle have
been the children’s primary caretakers.
In October 2017, Mother moved to modify the order, seeking sole
managing conservatorship and the right to designate the children’s
primary residence. Aunt and Uncle intervened and sought managing
conservatorship. The trial court held that Mother was not entitled to a
fit-parent presumption in a modification proceeding. After a jury trial,
the trial court appointed Aunt and Uncle the children’s joint managing
conservators based on a jury finding that it was in the children’s best
interest to do so. Mother and Father were appointed possessory
conservators. The court of appeals reversed and remanded for a new
trial “that incorporates the fit-parent presumption into the children’s
best interest analysis.” 668 S.W.3d 160, 170 (Tex. App.—San Antonio
2023). In light of C.J.C., and given that Mother had been appointed a
managing conservator in the order sought to be modified, I do not
disagree with that result.
In C.J.C., although we held that the fit-parent presumption
applies in a modification proceeding, we did not address “the proper

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evaluation of whether the fit-parent presumption has been overcome in
a particular case.” 603 S.W.3d at 821 (Lehrmann, J., concurring). While
the Family Code provides no express standard for overcoming the
presumption in Chapter 156, which governs modification proceedings, it
does in other contexts. For example, a trial court may order reasonable
possession of or access to a child by the child’s grandparent if, among
other requirements, the grandparent “overcomes the presumption that
a parent acts in the best interest of the parent’s child by proving by a
preponderance of the evidence that denial of possession of or access to
the child would significantly impair the child’s physical health or
emotional well-being.” TEX. FAM. CODE § 153.433(a)(2). Similarly, in an
initial child-custody proceeding, a child’s parents “shall” be appointed
managing conservators of the child unless the appointment “would not
be in the best interest of the child because [it] would significantly impair
the child’s physical health or emotional development.” Id. § 153.131(a)
(emphasis added). These provisions reflect the well-settled, and
constitutionally mandated, policy of this state to accord significant
deference to a fit parent’s decisions about what is best for her child and
to avoid interfering with those decisions absent a showing that they
would result in physical or emotional harm to the child. See In re
Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (explaining that the State may
not “infringe on the fundamental right of parents to make child rearing
decisions simply because a state judge believes a ‘better decision’ could
be made” (quoting Troxel v. Granville, 530 U.S. 57, 72–73 (2000)
(plurality opinion))).

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The court of appeals went a step further and concluded that Aunt
and Uncle did not overcome the fit-parent presumption because no
evidence was presented “to establish physical abuse, severe neglect,
abandonment, drug or alcohol abuse, or immoral behavior” by Mother.
668 S.W.3d at 169. To the extent the court of appeals held that such
evidence is required to rebut the presumption, as opposed to merely
sufficient, I must disagree. By that reasoning, the parental presumption
in a conservatorship proceeding cannot be rebutted absent proof of the
same kind of egregious conduct that would justify terminating the
parent–child relationship. See TEX. FAM. CODE § 161.001(b)(1)
(enumerating grounds for termination, including abandonment,
endangering the child’s physical or emotional well-being, and use of
controlled substances in a manner endangering the child’s health or
safety). Simply put, that cannot be right. Unlike orders adjudicating
conservatorship or possession, a termination judgment “imposes
permanent, irrevocable consequences.” In re J.A.J., 243 S.W.3d 611, 616
(Tex. 2007) (discussing the significant differences between
conservatorship and termination proceedings). For that reason, we have
described parental-termination proceedings as “the ‘death penalty’ of
civil cases.” In re D.T., 625 S.W.3d 62, 69 (Tex. 2021) (quoting In re
K.M.L., 443 S.W.3d 101, 121 (Tex. 2014) (Lehrmann, J., concurring)). A
nonparent’s use of the courts in a conservatorship proceeding to intrude
on a presumptively fit parent’s constitutionally protected determination
of what is in her child’s best interest is a serious matter carrying a heavy
burden, but it is not on par with a termination proceeding.

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Moreover, we recognized in J.A.J. that, unlike the termination
statute with its detailed grounds, the conservatorship statute “imposes
a more general standard that does not enumerate specific acts or
omissions by the parent, but instead requires the court to find that
appointing a parent [as conservator] would not be in the child’s best
interest because it would ‘significantly impair the child’s physical health
or emotional well-being.’” 243 S.W.3d at 616 (quoting TEX. FAM. CODE
§ 153.131(a)). The court of appeals erroneously implied otherwise by
relying on the absence of evidence of specific conduct amounting to
“physical abuse, severe neglect, abandonment, drug or alcohol abuse, or
immoral behavior.” 668 S.W.3d at 169.
I am also troubled by the lack of clarity in the court of appeals’
discussion of the impact on the significant-impairment analysis when a
nonparent seeking conservatorship or possession of a child has played a
parent-like role in the child’s life. In discussing applicable law regarding
the presumption, the court appeared to recognize that “significant
impairment” may be “inferred from uprooting a child from a nonparental
caretaker when the removal would be devastating . . . or cause serious
psychological damage” so long as there is “some evidence explaining how
the impairment would manifest as significant.” Id. at 166 (quoting In re
N.H., 652 S.W.3d 488, 498 (Tex. App.—Houston [14th Dist.] 2022, pet.
denied)). I unequivocally agree with that assessment. As I have stated
before, “courts may afford the requisite deference to a fit parent’s
decisions concerning his child while still giving due consideration to the
effect on the child’s well-being of severing, or significantly curtailing,
contact with a person who has served in a parent-like role to the child

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over a significant period of time.” C.J.C., 603 S.W.3d at 823 (Lehrmann,
J., concurring).
However, as discussed, in conducting its analysis and holding the
parental presumption had not been overcome, the court of appeals
appeared to rely solely on its conclusion that no evidence established
“physical abuse, severe neglect, abandonment, drug or alcohol abuse, or
immoral behavior.” 668 S.W.3d at 169. This narrow—and, in my view,
inaccurate—conception of what is necessary to establish significant
impairment stands in stark contrast to the court of appeals’ earlier
discussion of the standard. On remand, evidence regarding the impact
on the children of the loss or curtailment of contact with Aunt and Uncle
will certainly be relevant to the evaluation of the children’s best interest
within the context of the fit-parent presumption.
With these additional thoughts, I concur in the denial of the
petition for review.

Debra H. Lehrmann
Justice

OPINION FILED: November 22, 2024

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