MEMORANDUM OPINION
Appellant, [Child’s Mother], challenges the trial court’s August 4,
2010 order, entered after a jury trial, appointing appellees, Bryan James Danet
and William Todd Kranz, as the sole managing conservators of [Mother]’s minor
child, J.A.B.[1] In her first two
issues, [Mother] contends that the evidence is legally and factually
insufficient to support the jury’s finding that her appointment as sole
managing conservator would significantly impair the child’s physical health or
emotional development and the trial court erred in not allowing her to present
testimony from out-of-state witnesses via telephone. In her third issue, [Mother] requests that
this Court enforce the parties’ partial-settlement agreement, signed after the
trial court’s order, depending on the resolution of this appeal.
We reverse and render judgment.
Background
On March 31, 2006, Child Protective Services (“CPS”) removed the child
from the custody of [Mother] and placed him in the foster care of Danet and
Kranz. Although CPS chose not to seek
termination of [Mother]’s parental rights, Danet and Kranz, on October 2, 2007,
filed their petition in this suit affecting the parent-child relationship
(“SAPCR”), seeking appointment as the child’s joint managing conservators. In response, [Mother] filed an amended answer
and original counter-petition, seeking appointment as the child’s sole managing
conservator. In 2008, the parties
entered an agreement[2] naming Kranz and Danet as temporary managing
conservators of the child and [Mother] as the temporary possessory conservator
of the child during the pendency of court proceedings.
At trial, Kranz testified that he and Danet had taken care of the child
for four years and four months. After
CPS decided not to seek termination of [Mother]’s parental rights, he and
Danet, in October 2007, decided to “get involved in the case” and file their
SAPCR petition to be appointed as joint managing conservators. When they first received custody in April
2006, the child was seven months old and suffered from a “very severe diaper
rash.” Kranz thought that the child had
been “starving,” as if “he didn’t know when his next meal was going to
be.” After Kranz and Danet received
custody, [Mother] “pretty much abandoned” the child by moving to Wisconsin and
not visiting him for six months. She
came down to visit the child “on average” only “two [weekends] a year” even
though her visitation schedule allowed monthly visits. In addition, [Mother] would occasionally
bring with her “different men” whom the child did not know, and she never
brought “the same person twice.”
Kranz explained that [Mother] had initially thought that the child’s
father was Joseph Alaniz, who was her boyfriend at the time she lost custody of
the child. However, a paternity test
revealed the father to be George Hogeland, whom [Mother] lived with for five
months before she moved to Houston.
About four months after losing custody of the child, [Mother] was
arrested for “disturbance of the peace” after fighting with Alaniz in a Family
Dollar store parking lot. Shortly
thereafter, [Mother], pregnant with her second child, who was Alaniz’s son,
moved to Wisconsin. After she had given
birth to Alaniz’s son, Alaniz “beat the crap out of her in the hospital.” At the time of trial, Alaniz was incarcerated
and scheduled to be released in October 2011.
Kranz noted that in late 2006, [Mother] told him that if she were to
take a drug test, “it would turn out dirty.”
[Mother] was then ordered by CPS to take a drug test within 24 hours,
but she did not comply. She had also
informed Kranz that Alaniz had a drug problem.
Kranz further testified that in March 2008, [Mother] came to Houston
for a weekend visit with the child.
After visiting on a Saturday, [Mother] called on Sunday morning,
explaining that she was not feeling well and would meet him and the child at
the Houston Children’s Museum at noon, an hour later than previously
scheduled. She did not arrive at the
museum until 2:20 p.m., and she “very sneakily walk[ed] past the admission
where you pay.”
Kranz noted that in 2008, [Mother] brought her younger son and a man,
“Michael,” on her visit to the child.
Afterwards, [Mother] failed to call the child for three weeks because
they had “decided to go to New Orleans,” where Michael let “some girl . . .
borrow their truck.” [Mother] told Kranz
that “the truck [had] disappeared, so [[Mother], her younger son, and Michael]
had to take [a] bus back to Wisconsin,” leaving [Mother] without a
telephone. In watching [Mother] interact
with her other son, Kranz noted that “there doesn’t appear to be respect for
her,” and the child “screams at her” and “slaps” people.
Danet testified that during [Mother]’s visits, the child would “get[]
very scared and [cry] at night,” which he described as “very typical after
pretty much every visit that he has when [[Mother]] comes into town.” Although Kranz and Danet encouraged [Mother]
to call the child and scheduled regular telephone calls, sometimes they “would
come home for the phone call and then she wouldn’t call at all.” In the six months prior to trial, the child
would complain that he did not want to talk with [Mother]. However, Danet explained that if he and Kranz
were to be appointed managing conservators, they would still encourage the
child to remain in contact with [Mother].
Linda McDonald, a co-worker and family friend of Kranz and Danet,
testified that in August 2008, she supervised one of [Mother]’s visits. Once, when [Mother] “wanted to make a special
celebration” for the child’s birthday, they visited her at a local hotel where [Mother]
was staying. [Mother] had brought her
younger son and a “friend that was introduced as Dennis,” who had “very little
interaction” with the child. The amount
of time that [Mother] spent with the child was “very limited.”
Rebecca Weiser, a co-worker and friend of Kranz, testified that in
August 2009, she supervised a visit at the hotel in which [Mother] was
staying. She noted that while the child
was in the hotel pool, he “went under three times,” and Weiser had to “pull[]
him up out of the water” each time. This
caused her to be “concern[ed] for [the child’s] safety.” On cross-examination, Weiser admitted that
she did not move to terminate the visitation or contact CPS after the incident
and that Kranz was supervising the child as well.
[Mother] testified that when she, with her mother, moved to Houston in
December 2004, she was unaware that she was already pregnant with the
child. Shortly after arriving in
Houston, she met Alaniz and, despite his abusive tendencies, she later moved
into a house with him in mid-2005. She
noted that Alaniz would hide her driver’s license, delete her telephone numbers,
and attempt to control her. In December
2005, police officers were dispatched to their home to investigate alleged
domestic violence, and, by March 2006, [Mother] was “just waiting for an
opportunity to get out” and move away from Alaniz. She explained that she should have left the
relationship sooner, but she was “really screwed up” at the time and “dismissed
a lot of [Alaniz’s] behavior” because she “thought it was important to have a
family unit.”
On the morning of March 31, 2006, [Mother] planned to escape from
Alaniz’s abuse and take her child with her.
The child had been diagnosed with “thrush,” a yeast infection, which, [Mother]
explained, accounted for his diaper rash.
To treat the thrush, she packed two antibiotics prescribed by the
child’s pediatrician. Because Alaniz had
hidden her driver’s license, [Mother] had to “go through half the house” to
find it and left the house “messy.” She
then took the child with her to a bus stop to take a bus to her mother’s house
in Wisconsin while Alaniz was away.
However, Alaniz found [Mother] at a bus stop, confronted her, and
accused her of being a “drug user.” He
then “[took] off on a bicycle with” the child, [Mother] called for emergency
assistance, and a police officer drove her back to the house in a patrol
car. Alaniz and the child were already
at the house, and the police officer, after questioning [Mother] and Alaniz,
took the child away in a patrol car. [Mother]
explained that because the officer had taken the child away, she did not have
time to feed him or apply his thrush medication. [Mother] was quite upset and spent the
weekend in a hotel room. She then
attended a court hearing the following Monday, and the court ordered her to
submit to a narcotics test, which came back positive for cocaine. She submitted an affidavit in which she named
Alaniz as the child’s father, which she believed to be true at the time. The child was not returned to [Mother] at the
hearing.
After the hearing, [Mother] moved back to Wisconsin to join her mother
and notified CPS that she had moved. In
June 2006, CPS informed her that it would seek “unrelated adoption” for the
child. [Mother] then returned to Houston
for a second hearing, and CPS submitted to her a Family Service Plan
(“FSP”). [Mother] understood that she
could regain custody of the child if she “not just completed [the FSP] but did
. . . very well.” Later, in the summer
of 2006, [Mother] stayed in Houston with Alaniz. She attended parenting courses, underwent a
psychological evaluation, and stayed two nights at an “in-patient drug facility”
pursuant to the FPS.
In September of 2006, [Mother] returned to Wisconsin, and Alaniz
followed her. After the birth of her
second child, Alaniz “beat [her] up” in the hospital room and was
arrested. [Mother] later bought Alaniz a
bus ticket to return to Houston, while she remained in Wisconsin. There, she followed the FSP by taking
parenting and relationship courses, attending drug and domestic violence
counseling sessions, and undergoing follow-up psychological evaluations. At the time, she was working as a cashier at
a dollar store and had a second job “doing clerical work.” She was living in “Section 8 housing” with
her mother and second child and receiving food stamps.
[Mother] admitted that she had previously been arrested in
Massachusetts on a charge relating to heroin, and, in 1999, she was convicted
in Wisconsin for possession of marijuana and battery. She also admitted that, in 2006, she used
cocaine while pregnant with her younger son, causing her to fail the
court-ordered narcotics test. [Mother]
further admitted that in July 2007, she was scheduled to fly to Houston for a
visitation, but the airline would not allow her on the plane “due to [her]
intoxication,” so she boarded an early flight the next morning.
[Mother] explained that if she was awarded custody of the child, she
would take him back to Wisconsin and continue to live with her mother. She noted that her family could not come to
Houston to visit the child because her mother had health problems and Kranz and
Danet were not cooperative with them.
Specifically, [Mother] asserted that they were “alienating” and
“isolating” her from the child. Kranz
and Danet would not disclose the child’s medical records to her, moved him to
different schools without informing her, and “took him out of school” when [Mother]
planned to visit him in class. She
further explained that the financial burden of traveling to Houston and the
time that it took to raise her second son made it difficult for her to make
regular trips to Houston.
Sufficiency of the Evidence
In her first issue, [Mother] argues that the evidence is legally and
factually insufficient to support the jury’s finding that her appointment as
sole managing conservator would significantly impair the child’s physical
health or emotional development. She
asserts that most of the evidence against her relates only to her “past conduct
. . . which occurred approximately four or more years prior to trial . . . [and] does not implicate [her]
present parental fitness.” [Mother]
further asserts that the evidence is “legally insufficient to overcome the
parental presumption as a matter of law” and consists of “minor, insubstantial
conduct” that only establishes that she is an “imperfect person.”
Danet and Kranz argue that the evidence is legally and factually
sufficient to support the jury’s finding that they should be the child’s sole
managing conservators because removing the child from their home at the time of
trial “would significantly impair his emotional development.” They also assert that
[T]he jury heard evidence that [[Mother]’s] bad parenting would
significantly impair [the child’s] physical health or emotional
development. Less than a year before
trial, [the child] nearly drowned in a swimming pool while [[Mother]] was
supposed to be watching him. And [[Mother]]
repeatedly made extraordinarily bad decisions related to her visits with [the
child], including being so drunk at the airport that she was not allowed to
fly. The evidence, therefore, supports
the jury’s finding that awarding [[Mother]] sole managing conservatorship would
significantly impair [the child’s] physical health or emotional development.
We will sustain a
legal-sufficiency or “no-evidence” challenge if the record shows one of the
following: (1) a complete absence of evidence of a vital fact, (2) rules of law
or evidence bar the court from giving weight to the only evidence offered to
prove a vital fact, (3) the evidence offered to prove a vital fact is no more
than a scintilla, or (4) the evidence conclusively establishes the opposite of
the vital fact. City of Keller v.
Wilson, 168 S.W.3d 802, 810 (Tex. 2005).
In conducting a legal-sufficiency review, a court must consider evidence
in the light most favorable to the verdict and indulge every reasonable
inference that would support it. Id. at
822. The term “inference” means,
In the law of evidence, a truth or proposition drawn from another which
is supposed or admitted to be true. A process of reasoning by which a fact or
proposition sought to be established is deduced as a logical consequence from
other facts, or a state of facts, already proved. . . .
Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex.
App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.) (citing Black’s Law
Dictionary 700 (5th ed. 1979)). For a
jury to infer a fact, “it must be able to deduce that fact as a logical
consequence from other proven facts.”
Id.
If there is more than a scintilla of evidence to support the challenged
finding, we must uphold it. Formosa
Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41,
48 (Tex. 1998). “‘[W]hen the evidence
offered to prove a vital fact is so weak as to do no more than create a mere
surmise or suspicion of its existence, the evidence is no more than a scintilla
and, in legal effect, is no evidence.’”
Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting
Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)). If the evidence allows only one inference,
neither jurors nor the reviewing court may disregard it. Id.
However, if the evidence at trial would enable reasonable and
fair-minded people to differ in their conclusions, then the fact-finder must be
allowed to do so. Id. A reviewing court cannot substitute its
judgment for that of the fact-finder, so long as the evidence falls within this
zone of reasonable disagreement. Id.
In conducting a factual-sufficiency review, we must consider, weigh,
and examine all of the evidence that supports or contradicts the fact-finder’s
determination. Plas-Tex, Inc. v. U.S.
Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).
We may set aside a verdict only if the evidence supporting it is so
contrary to the overwhelming weight of the evidence as to be clearly wrong or
manifestly unjust. Cain v. Bain, 709
S.W.2d 175, 176 (Tex. 1986). When
conducting a factual-sufficiency review, we must not merely substitute our
judgment for that of the fact-finder. Golden Eagle Archery v. Jackson, 116
S.W.3d 757, 761 (Tex. 2003). The
fact-finder is the sole judge of the credibility of witnesses and the weight to
be given to their testimony. Id.
In any case involving an issue of conservatorship, the best interest of
the child must always be the primary consideration of the trial court. Tex. Fam. Code Ann. § 153.002 (Vernon
2008). The court must presume that the
best interest of the child is served by appointing a biological parent as sole
managing conservator or both biological parents as joint managing conservators. See id. § 153.131(a) (Vernon 2008); see also
In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Mumma v. Aguirre, 364 S.W.2d 220,
221 (Tex. 1963). Nonparents seeking
conservatorship carry a “heavy burden” of overcoming this presumption. Lewelling v. Lewelling, 796 S.W.2d 164, 167
(Tex. 1990). It is no longer adequate to
offer evidence that a nonparent would be a better custodian of a child. Id.
Instead, the parental presumption may only be rebutted with proof of
certain findings prescribed by statute.
Id.
A nonparent may rebut the presumption in favor of a biological parent
only if evidence is produced showing that appointment of the biological parent
as managing conservator would “significantly impair the child’s physical health
or emotional development.” Tex. Fam.
Code Ann. § 153.131(a); see In re R.T.K., 324 S.W.3d 896, 902–03 (Tex.
App.—Houston [1st Dist.] 2010, pet. denied).
A nonparent may also overcome the presumption by producing evidence of
“a history or pattern of past . . . physical . . . abuse by [a] parent directed
against the other parent, a spouse, or a child.” Tex. Fam. Code Ann. § 153.004(b) (Vernon
2008). In disputes between a parent and
a nonparent, the Texas Legislature has mandated that “close calls” should be
decided in favor of the biological parent.
Lewelling, 796 S.W.2d at 168.
Here, the trial court instructed the jury, in pertinent part, as
follows:
The biological parent shall be appointed sole managing conservator, in
preference to a non-parent, unless appointment of the biological parent would
not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional development.
“Significantly Impair” means the non-parent must affirmatively prove by
a preponderance of the evidence through specific actions or omissions of the
parent that demonstrate that an award of custody to the parent would result in
physical or emotional harm to the child.
[Mother] notes that much of the record evidence, including evidence of
the child’s “severe diaper rash” and the condition of her and Alaniz’s home
when police officers took the child, her use of cocaine while she was
unknowingly pregnant with her second child, her two misdemeanor convictions,
and her intoxication at an airport in 2007, concerns conduct that occurred
three or more years prior to trial. She
asserts that this evidence does not implicate her “present parental fitness” or
support the jury’s finding that her conservatorship would significantly impair
the child’s physical health or emotional development.
In support of her assertion, [Mother] relies on In re S.W.H, 72 S.W.3d
772 (Tex. App.—Fort Worth 2002, no pet.).
In S.W.H, the court held that evidence that a mother had been twice
incarcerated for testing positive for narcotics, in violation of her probation
and more than four years prior to trial, was insufficient to support a finding
that the appointment of the mother as managing conservator of the child would
significantly impair the child. Id. at
777–78. Noting that the mother had
presented uncontroverted evidence that she had remained “clean” for three years
prior to trial, the court explained that “evidence of past misconduct may not,
by itself, be sufficient to show present parental unfitness.” Id. at 778.
Furthermore, the Thirteenth Court of Appeals has noted that if a parent
“is presently a suitable person to have custody, the fact that there was a time
in the past when the parent would not have been a proper person to have such
custody is not controlling.” May v. May,
829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied); see also In
re M.W., 959 S.W.2d 661, 666 (Tex. App.—Tyler 1997, writ denied) (“When
determining fitness of a parent, the material time to consider is the
present.”). However, past misconduct may
be considered due to the “permissible inference that an adult person’s future
conduct may well be measured by [their] recent deliberate past conduct as it
may be related to the same or a similar situation.” Id.
Here, Kranz and Danet’s evidence concerning [Mother]’s more recent
conduct in Houston does reveal that [Mother] brought different men with her on
her visits with the child, visited the child only twice a year after losing
custody of him, showed up late to a visit, tried to board an airplane while
intoxicated, “snuck” into the Houston Children’s Museum, and, after travelling
to New Orleans following a visit with the child, did not call the child for
three weeks. Weiser did also testify
that the child, during one of [Mother]’s visits at a hotel, “went under” the
water in a pool three times and she had to pull him out of the water. This evidence, however, does not establish
that [Mother]’s past misconduct is sufficiently linked to her fitness, at the
time of trial, to be the child’s custodian.
Kranz and Danet did not present evidence that [Mother]’s past drug use,
misdemeanor criminal history, or Alaniz’s domestic violence, all of which
occurred approximately four or more years prior to trial, constitute ongoing
problems or part of a more recent pattern of behavior. Thus, the jury could not have reasonably
inferred that [Mother]’s more remote conduct implicated her parental fitness,
at the time of trial, such that the appointment of her as the sole managing
conservator of the child would significantly impair the child’s physical health
or emotional development. See May, 829
S.W.2d at 376–77.
Furthermore, Kranz and Danet’s evidence of [Mother]’s more recent
conduct does not itself constitute evidence that the appointment of [Mother] as
the sole managing conservator of the child would significantly impair the
child’s physical health or emotional development. Again, “[i]t is no longer adequate to offer
evidence that the nonparent would be a better custodian of the child.” Lewelling, 796 S.W.2d at 167. The jury could have reasonably inferred that
Kranz and Danet would be better custodians of the child based on [Mother]’s
actions in sneaking into the Houston Children’s Museum, bringing different men
to her visits with the child, and, after a visit with the child, taking a
spontaneous trip to New Orleans and not calling the child. However, there is no evidence that [Mother]’s
conduct, albeit clearly inappropriate, constitutes “specific actions or
omissions” that demonstrate that awarding her conservatorship would
significantly impair the child’s physical health or emotional development. See Tex. Fam. Code Ann. § 151.131(a).
Kranz and Danet rely heavily on their evidence that the child “nearly
drowned” during one of [Mother]’s visits.
Although Weiser did testify that he “went under” water three times at a
hotel swimming pool during a visit, there is no evidence that the child “nearly
drowned.” Indeed, the child was
accompanied by three adults: [Mother], Weiser, and Kranz. And [Mother] had to watch her younger son as
well during the visit. Given these
undisputed facts, the jury could not have reasonably inferred that the incident
constitutes evidence that [Mother]’s conservatorship would significantly impair
the child’s physical health or emotional development.
Finally, Kranz and Danet argue that, even without reference to [Mother]’s
conduct, “removing [the child] from the only home he has ever known” would “significantly
impair his emotional development.” This
court has recently held that a trial court could have reasonably concluded that
removing a child from “the only person who has consistently cared” for the
child would “significantly impair” the child’s development. McPherson v. Hollyer, No. 01-09-00619-CV,
2011 WL 1632163, at *6 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.)
(quoting In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.] 2002,
pet. denied)).
Here, as noted above, the trial court’s charge to the jury included an
instruction stating that “significantly impair” means “the non-parent must
affirmatively prove by the preponderance of the evidence through specific
actions or omissions of the parent that demonstrate that an award of custody to
the parent would result in physical or emotional harm to child.” (Emphasis added.) [Mother] notes that the charge explicitly
required Kranz and Danet to prove “specific acts or omissions” on her part to
override the parental presumption in her favor and, regardless of our holding
in McPherson, “it is the court’s charge . . . that measures the sufficiency of
the evidence when the opposing party fails to object.” Osterburg v. Peca, 12 S.W.3d 31, 55 (Tex.
2000).
“When neither party objects to a jury instruction, an appellate court
must review the sufficiency of the evidence in light of the instruction
actually given, even if the statement of the law in the charge is not correct,
and even if the charge as given effectively increases the burden of proof on a
party beyond that actually required by the correct law or results in a ‘more
rigorous’ standard of proof.” See
Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d
764, 782 (Tex. App.—Houston 2011, no pet.) (citing Romero v. KPH Consol., Inc.,
166 S.W.3d 212, 220–21 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d
711, 715 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.23d 62, 71 (Tex.
2000); IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 897,
n.8 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)).
Here, the trial court’s charge to the jury explicitly required that
Kranz and Danet prove, by a preponderance of the evidence, that “specific
actions or omissions” of [Mother] demonstrated that her custody of the child
would result in physical or emotional harm to the child. Thus, the jury could not rely solely on Kranz
and Danet’s evidence that removing the child from their custody would be
difficult and traumatic for the child.
In sum, Kranz and Danet did not present any evidence of [Mother]’s
specific acts or omissions from which a fact finder could reasonably infer that
the appointment of [Mother], the child’s biological parent, as sole managing
conservator of the child would significantly impair the child’s physical health
or emotional development.[3]
Accordingly, we hold that the evidence is legally insufficient to
support the jury’s finding that Kranz and Danet, as non-parents, should be
appointed the child’s managing conservators.
See City of Keller, 168 S.W.3d 802 at 810.
We sustain [Mother]’s first issue.
Conclusion
We reverse the order of the trial court and render an order appointing [Mother]
as sole managing conservator of the child.
We also modify the order pursuant to the parties’ partial-settlement
agreement and appoint Kranz and Danet as possessory conservators.[4]
Terry Jennings
Justice
Panel consists of Justices Jennings, Sharp, and Brown.
SOURCE: HOUSTON COURT OF APPEALS - 01-10-00963-CV – 4/12/2012
--------------------------------------------------------------------------------
[1] See Tex. Fam. Code Ann. § 153.005
(Vernon 2008).
[2] See Tex. R. Civ. P. 11.
[3] To the extent that Kranz and Danet
argue that any harmful effect of removing the child from their custody would be
precipitated by an act or omission of [Mother], whether by her moving to
Wisconsin or visiting the child only twice a year, on average, since losing
custody, [Mother] notes that she moved to Wisconsin for the purpose of escaping
from Alaniz and living with her mother.
She also notes that she did not have the economic means to make more
frequent visits to Houston to visit the child.
Furthermore, “the fact that [the child] has lived with [Kranz and Danet]
for such a lengthy period is largely attributable to delays” in the judicial
proceedings. See Lewelling, 796 S.W.2d
at 168 n.9 (noting parent was not at fault for “lengthy appeals process,” so
length of time child spent with non-parents was largely “judicially
created”). Using such a fact to deny a
parent conservatorship of her child would “thwart[] the legislatively-mandated
parental preference.” Id.
[4] In her third issue, [Mother] asks,
as do Kranz and Danet, that this court enforce the agreement that “[i]n the
event that the Court of Appeals reverses the judgment of the Trial Court and
renders judgment appointing [Child’s Mother] as the sole managing conservator .
. . [Mother] agrees that [Kranz and Danet] shall be appointed as possessory
conservators at the conclusion of this appeal.
In this event, the Parties agree to jointly request the Court of Appeals
to implement this Agreement by rendering judgment appointing [Kranz and Danet]
as possessory conservators.” See Tex. R.
Civ. P. 11. Because we reverse the
judgment of the trial court and render judgment in favor of [Mother], we render
an order appointing Kranz and Danet as possessory conservators pursuant to the
terms of the parties’ agreement. See
Tex. R. App. P. 42.1(a)(2)(A) (permitting appellate court to render judgment
effectuating agreement of parties).
