Full Opinion

In the Court of Appeals Sixth Appellate District of Texas at Texarkana No. 06-25-00115-CV IN THE INTEREST OF M.L.D., A CHILD On Appeal from the 71st District Court Harrison County, Texas Trial Court No. 25-0470 Before Stevens, C.J., van Cleef and Rambin, JJ. Memorandum Opinion by Justice van Cleef MEMORANDUM OPINION This is an appeal from a suit affecting the parent-child relationship. In the proceeding below, the trial court entered a final order1 appointing parents,2,3 Carolyn Ann Armstrong and James Dewayne Davis (Appellants),4 and nonparents, Madison Shields and Brian Casey Shields (Appellees),5 as joint-managing conservators of M.L.D., with Appellees having the right to determine her actual residence. This appeal followed. Appellants argue that (1) the trial court erred when it found that Appellees overcame the fit-parent presumption without evidence of impairment, (2) the evidence was insufficient to support the trial court’s finding that Appellants voluntarily relinquished actual care, control, and possession of M.L.D.; (3) the trial court’s significant-impairment finding was conclusory and unsupported by sufficient evidence, and (4) the trial court’s order violated their constitutional parental rights. Because we conclude that the evidence was legally and factually insufficient to support the trial court’s award to Appellees of joint-managing conservatorship with the right to determine M.L.D.’s residence, we vacate the trial court’s final order, leave its temporary order intact, and remand the case for further proceedings consistent with this opinion. 1 Also referred to as a final judgment. 2 Appellants adopted M.L.D. when she was an infant. “An order of adoption creates a parent-child relationship between the adoptive parent and the child for all purposes.” See TEX. FAM. CODE ANN. § 162.017(a). 3 We use initials or pseudonyms to protect the identity of the child. See TEX. R. APP. P. 9.8. 4 We refer to Carolyn Ann Armstrong and James Dewayne Davis collectively as “Appellants,” and to Ms. Armstrong individually as Carolyn. 5 We refer to Madison Shields and Brian Casey Shields collectively as “Appellees” and to Mrs. Shields individually as Madison. 2 I. Standard of Review “A trial court’s order regarding conservatorship is reviewed under an abuse of discretion standard.” In re J.Y., 528 S.W.3d 679, 686 (Tex. App.—Texarkana 2017, no pet.) (citing In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007)). “A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to any guiding principles.” Id. (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985)). “We, therefore, will not reverse a trial court’s appointment of a non-parent as . . . managing conservator unless we determine that the appointment was arbitrary and unreasonable.” Id. (citing In re J.A.J., 243 S.W.3d at 616; Earvin v. Dep’t of Fam. & Protective Servs., 229 S.W.3d 345, 350 (Tex. App.— Houston [1st Dist.] 2007, no pet.)). “We view the evidence in the light most favorable to the trial court’s decision and indulge every legal presumption in favor of its judgment.” Id. (quoting Earvin, 229 S.W.3d at 350). “Legal [sufficiency6] and factual sufficiency[7] are not independent grounds of error in conservatorship cases but are merely relevant factors in deciding whether the trial court abused 6 “In determining legal sufficiency, the appellate court determines ‘whether the evidence at trial would enable reasonable and fair-minded people to reach the verdict under review.’” In re Marriage of Mitchell, 585 S.W.3d 38, 46–47 (Tex. App.—Texarkana 2019, no pet.) (quoting Petrohawk Props., L.P. v. Jones, 455 S.W.3d 753, 770 (Tex. App.—Texarkana 2015, pet. dism’d) (quoting City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005); Basley v. Adoni Holdings, LLC, 373 S.W.3d 577, 582 (Tex. App.—Texarkana 2012, no pet.))). An appellate court “credit[s] favorable evidence if a reasonable [fact-finder] could and disregard contrary evidence unless a reasonable [fact- finder] could not.” Id. at 47 (second and third alterations in original) (quoting Petrohawk, 455 S.W.3d at 770 (citing City of Keller, 168 S.W.3d at 827)). The evidence is legally insufficient if (1) there is a complete absence of evidence of a vital fact; (2) the rules of law or of evidence bar the court from giving weight to the only evidence offered to prove a vital fact; (3) there is no more than a mere scintilla of evidence offered to prove a vital fact; or (4) the opposite of the vital fact is conclusively established by the evidence. Id. (quoting Petrohawk, 455 S.W.3d at 770 (citing Jelinek v. Casas, 328 S.W.3d 526, 532 (Tex. 2010))). 3 its discretion.” In re Marriage of Mitchell, 585 S.W.3d at 46 (quoting In re J.Y., 528 S.W.3d at 686). “In applying the abuse of discretion standard, we initially determine whether the trial court had sufficient evidence upon which to exercise its discretion.” Id. (quoting In re J.Y., 528 S.W.3d at 686). “If so, we then determine whether the trial court erred in its exercise of that discretion.” Id. (quoting In re J.Y., 528 S.W.3d at 686). II. The Best Interests of the Child “In Troxel v. Granville, [530 U.S. 57 (2000) (plurality op.),] the United States Supreme Court held unconstitutional a trial court’s order requiring a fit parent to permit visitation with her children’s grandparents.” In re C.J.C., 603 S.W.3d 804, 807 (Tex. 2020) (orig. proceeding) (citing Troxel, 530 U.S. 57). “The Court recognized that the United States Constitution ‘protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children.’” Id. (quoting Troxel, 530 U.S. at 66). “To protect that right, a plurality in Troxel applied ‘a presumption that fit parents act in the best interest[s] of their child[].’” Id. (quoting Troxel, 530 U.S. at 68). Likewise, “[t]he presumption that the best interest[s] of the child is served by awarding custody to the parent is deeply embedded in Texas law.” In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000) (citing Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex. 1990)). “The government 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.’” In re C.J.C., 603 S.W.3d at 807 7 “When we review a finding for factual sufficiency, we consider all of the evidence and will set aside a finding only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.” Id. (quoting Edwards v. Mid-Continent Off. Distribs., L.P., 252 S.W.3d 833, 836 (Tex. App.—Dallas 2008, pet. denied) (citing Dow Chem. Co. v. Francis, 46 S.W.3d 237, 242 (Tex. 2001) (per curiam); Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam))). 4 (quoting In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam) (orig. proceeding) (quoting Troxel, 530 U.S. at 72–73)). This is because “constitutional infirmity . . . can result when a court’s best-interest determination overrides the expressed desires of a fit parent.” Id. at 817. “Accordingly, . . . a court must apply the presumption that a fit parent—not the court— determines the best interest[s] of the child in any proceeding in which a nonparent seeks conservatorship or access over the objection of a child’s fit parent.” Id. III. Discussion Among other reasons, Appellants maintain the trial court erred when it found that (1) Appellees met their burden of proving by a preponderance of the evidence that Appellants’ appointment as sole-managing conservators or joint-managing conservators, with the exclusive right to determine M.L.D.’s primary residence, would not be in M.L.D.’s best interests because it would significantly impair her physical health or emotional development; and (2) Appellees met their burden of proving by a preponderance of the evidence that Appellants voluntarily relinquished actual care, custody, and control of M.L.D. A. The Final Hearing The evidence at the final hearing shows that Madison and Carolyn had worked well together in the past for M.L.D.’s benefit. Their relationship became complicated only after Madison asked Carolyn to sign a healthcare authorization allowing Appellees to make M.L.D.’s healthcare decisions. Madison testified that, between the temporary and final hearings, Appellants were never home when Appellees arrived to take possession of M.L.D. Instead, their 5 friend and neighbor, Donya, was there with M.L.D. Madison also questioned why Carolyn and Donya came to Appellees’ house to take possession of M.L.D., while James was never present. After M.L.D. returned to Appellees’ home, Madison noticed that M.L.D. had what she described as “a really bad sunburn.” Madison later gave Carolyn a gift basket containing several items for M.L.D., including sunscreen. Carolyn returned the basket and its unused items with a note stating that the items were “not needed.” Madison believed the note indicated that Carolyn did not intend to prevent M.L.D. from getting sunburned again. Carolyn testified that she did not know M.L.D. had gotten sunburned at her house because their pool was under a shade tree. Carolyn also believed that Madison gave her the basket to show the trial court that Appellants lacked the financial means to raise M.L.D. In addition, Madison claimed that she had seen M.L.D. get into a vehicle with Carolyn, who did not place M.L.D. in a car seat or secure her with a seat belt. Madison further testified that she had seen M.L.D. riding in the front seat of Carolyn’s vehicle. Carolyn disputed Madison’s claims, stating that she properly secured M.L.D. in a car seat whenever she drove. Although a photograph admitted into evidence shows M.L.D. in the front seat of Carolyn’s car, it did not appear to have been taken while Carolyn was driving. Carolyn explained that the photograph was taken while she was parked at the end of Appellees’ driveway and that M.L.D. was always in her car seat when the vehicle was moving. Carolyn admitted that M.L.D. buckled herself into her car seat because she knew “how to do it herself.” Madison also complained that Carolyn had taken M.L.D. for haircuts twice and that M.L.D. disliked both haircuts. Moreover, Madison disliked M.L.D.’s shorter haircut for several 6 reasons: (1) she believed it would prevent M.L.D. from participating in dance, (2) she did not think the style was appropriate for a child M.L.D.’s age, and (3) she wanted M.L.D. to feel confident about her appearance. Carolyn acknowledged taking M.L.D. for haircuts twice, explaining that M.L.D. had complained that her long hair got in the way while playing or eating. In addition, Madison believed that Appellants had significantly impaired M.L.D.’s physical health or emotional well-being because Carolyn slapped M.L.D. on the mouth and spanked her with a paddle. Although Madison testified that Carolyn told her she slapped M.L.D. in the mouth, Carolyn disputed Madison’s claim. Carolyn also denied ever spanking M.L.D. with a paddle, stating that if she needed to discipline M.L.D., she would “just pat her on the butt.” However, Carolyn later admitted that she had paddled M.L.D. but said that the paddle she used did not look “like what ya’ll [sic] think.” The testimony addressed Carolyn’s knowledge of M.L.D.’s dance classes and school attendance. Madison ensured that M.L.D. attended dance class and daycare. Carolyn conceded that she was not very involved in those activities and stated that M.L.D. did not enjoy dance class. Carolyn said that she did not know about M.L.D.’s daycare attendance or dance classes because Madison did not provide that information to her. But Carolyn also admitted that she never asked Madison whether M.L.D. participated in either activity. Carolyn was, however, aware that the previous year M.L.D. attended school on Mondays, Wednesdays, and Fridays and stayed with Appellees during the week. M.L.D. only stayed with Appellants on weekends. At the time of trial, twenty-year-old Malea Phillips, who was also adopted by Appellants, testified on behalf of Appellees. When asked whether Carolyn had ever placed M.L.D. in 7 physical danger, Malea mentioned only that Carolyn disciplined her by spanking her. Regarding negligent behavior toward M.L.D., Malea said that Carolyn may have been negligent in having M.L.D.’s hair cut in a style M.L.D. disliked, especially when Malea had informed Carolyn that M.L.D. did not like it. In addition, Malea testified that Carolyn never took care of M.L.D. while M.L.D. was with Appellants. According to Malea, Carolyn relied on Malea and Malea’s sister to care for M.L.D., even though Carolyn was capable of taking on that responsibility. On the other hand, Carolyn disputed Malea’s account, stating that Malea and Malea’s sister did not help at all except to play with M.L.D. Carolyn said that caring for M.L.D. was her responsibility, not her children’s. She testified that she was “[a]bsolutely” capable of caring for M.L.D., regardless of her age. Carolyn also explained that she owned a three-bedroom, two-bath house and noted that M.L.D. had her own bedroom.8 8 During the final hearing, Appellees referred to testimony that was given during the temporary hearing. In In re M.B.D., this Court stated, Mother cites evidence that was introduced at the temporary hearings as the “credible evidence” of a history of sexual abuse by father against mother since they began their sexual relationship when she was fourteen and he was approximately twenty years of age. At the final hearing no such evidence was presented; the evidence from the hearings for temporary orders could neither be considered by the trial court in reaching its final orders, nor by this Court on reviewing the final order. In re M.B.D., 344 S.W.3d 1, 3 (Tex. App.—Texarkana 2011, no pet.) (citing May v. May, 829 S.W.2d 373, 376 (Tex. App.—Corpus Christi 1992, writ denied). In addition, Appellees attached an appendix to their brief, which contained a transcript of the temporary hearing. “In order for testimony from a prior hearing or trial to be considered in a subsequent proceeding, the transcript of that testimony must be properly authenticated and entered into evidence.” Guyton v. Monteau, 332 S.W.3d 687, 693 (Tex. App.—Houston [14th] 2011, no pet.); see also Paradigm Oil, Inc. v. Retamco Operating, Inc., 161 S.W.3d 531, 539–40 (Tex. App.—San Antonio 2004, pet. denied) (“[T]he trial court cannot take judicial notice of testimony from a previous proceeding at a subsequent proceeding unless the testimony is admitted into evidence at the subsequent proceeding.”). Accordingly, this Court considered only evidence admitted and testimony given during the final hearing in our review of the trial court’s final order. 8 Malea had only positive things to say about Appellees’ behavior toward M.L.D. She opined that they treated M.L.D. like one of their own children; that M.L.D. was safe, healthy, and happy when she was with Appellees; that Appellees had a nice home; that they would raise M.L.D. in a safe and stable manner; and that they were better positioned to take on that responsibility. At Appellants’ request, the trial court issued its findings of fact and conclusions of law on October 27, 2025 finding that: (1) it was in M.L.D.’s best interests for Appellants and Appellees to be appointed joint-managing conservators, with Appellees having the right to designate M.L.D.’s actual residence in Harrison County or any contiguous county; (2) Appellees overcame the fit-parent presumption “based in part on the fact that [Appellants] relinquished primary care, custody[,] and control of [M.L.D.] to [Appellees] for a period of more than two . . . years which is well in excess of six months prior to the filing of the suit”; and, (3) it was not in M.L.D.’s best interests for Appellants to have the exclusive right to determine M.L.D.’s primary residence “because the appointment would significantly impair the child’s physical health or emotional development.” B. Significant Impairment of Physical Health or Emotional Development Appellants argue that Appellees failed to overcome the fit-parent presumption because they failed to show by a preponderance of the evidence9 that Appellants’ appointment as sole- 9 Section 105.005 of the Texas Family Code states, “Except as otherwise provided by this title, the court’s findings shall be based on the preponderance of the evidence.” TEX. FAM. CODE ANN. § 105.005. However, in 2025, the Texas Legislature amended Section 153.002 of the Texas Family Code by adding the following language: (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 9 managing conservators or joint-managing conservators, with the exclusive right to determine M.L.D.’s primary residence, would not be in M.L.D.’s best interests because it would significantly impair M.L.D.’s physical health or emotional development. Section 153.131(a) of the Texas Family Code states, [U]nless the court finds that appointment of the parent or parents would not be in the best interest[s] of the child because the appointment would significantly impair the child’s physical health or emotional development, a parent shall be appointed sole[-]managing conservator or both parents shall be appointed as joint[-]managing conservators of the child. TEX. FAM. CODE ANN. § 153.131(a); see In re Crumbley, 404 S.W.3d 156, 161 (Tex. App.— Texarkana 2013, orig. proceeding). However, Section 153.131(b) states, “It is a rebuttable presumption that the appointment of the parents of a child as joint[-]managing conservators is in 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 [rebuttable fit-parent] presumption under Section (b). TEX. FAM. CODE ANN. § 153.002(c)(1)–(2) (Supp.). The additional language contained in Section 153.002(c) seemingly falls within the “[e]xcept as otherwise provided” language contained in Section 105.005, and it became effective on September 1, 2025. See Act of Apr. 6, 1995, 74th Leg. R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 147, amended by Act of May 15, 2025, 89th Leg., R.S., ch. 236, § 2, 2025 Tex. Gen. Laws 1, 2. Here, Appellees filed their original petition on May 27, 2025, the final hearing was held on August 4, 2025, the trial court’s final order was entered on September 17, 2025, and its findings of fact and conclusions of law were issued on October 27, 2025. As a result, some of the events occurred before Section 153.002(c)’s effective date of September 1, 2025, and others occurred after. Furthermore, the trial court did not specify in its final order or in its findings of fact and conclusions of law which burden of proof it applied in this case. Regardless, it is not necessary for this Court to discuss the applicability of Section 153.002(c), if any, because Appellees failed to meet their burden of proof under either standard. 10 the best interest[s] of the child. A finding of a history of family violence involving the parents of a child removes the presumption under this subsection.”10 TEX. FAM. CODE ANN. § 153.131(b). “Where a trial court appoints a parent and nonparent as joint managing conservators, it implicitly rules that parent’s sole custody would significantly impair the child’s physical health or emotional development.” In re Marriage of Mitchell, 585 S.W.3d at 49 (quoting In re L.D.F., 445 S.W.3d 823, 830 (Tex. App.—El Paso 2014, no pet.)). Likewise, “where both parents and a nonparent are appointed joint managing conservators, a trial court implicitly finds that appointment of only the parents would result in significant impairment to the child’s physical health and emotional development.” Id. (citing In re L.D.F., 445 S.W.3d at 830). In general, impairment of the child’s physical health or emotional development must be proven by a preponderance of the evidence showing “specific actions or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child.” Lewelling, 796 S.W.2d at 167; see In re T.R.B., 350 S.W.3d 227, 233–34 (Tex. App.—San Antonio 2011, orig. proceeding). Case law has shown that the acts or omissions that constitute significant impairment include, but are not limited to, “physical abuse, severe neglect, abandonment, drug or alcohol abuse, or immoral behavior on the part of the parent.” In re De La Pena, 999 S.W.2d 521, 528 (Tex. App.—El Paso 1999, no pet.) (citing In re M.W., 959 S.W.2d 661, 665 (Tex. App.—Tyler 1997, writ denied)). “Other considerations may include parental irresponsibility, a history of mental disorders and suicidal thoughts, frequent moves, bad judgment, child abandonment, and an unstable, disorganized, and chaotic lifestyle that has put 10 Here, there are no allegations or evidence that Appellants had a history of family violence. 11 and will continue to put the child at risk.” In re S.T., 508 S.W.3d 482, 492 (Tex. App.— Fort Worth 2015, no pet.) (citing In re R.R., No. 02-13-00464-CV, 2014 WL 3953930, at *3 (Tex. App.—Fort Worth Aug. 14, 2014, no pet.) (mem. op.)). “Absent such specific evidence, general evidence that a non-parent would be a better custodian of the child is inadequate to rebut the parental presumption.” In re Marriage of Mitchell, 585 S.W.3d at 48 (quoting In re R.D.Y., 51 S.W.3d 314, 321 (Tex. App.—Houston [1st Dist.] 2001, pet. denied). “When a parent and a nonparent are both seeking managing conservatorship, ‘close calls’ should be decided in favor of the parent.” Id. (quoting R.H. v. D.A., No. 03-16-00442-CV, 2017 WL 875317, at *5 (Tex. App.—Austin Mar. 2, 2017, pet. dism’d) (mem. op.) (quoting Lewelling, 796 S.W.2d at 168)). “A fact[-]finder may infer the present fitness of the parent to be managing conservator from the parent’s recent, deliberate past misconduct.” Id. (alteration in original) (quoting R.H., 2017 WL 875317, at *5). But evidence of a parent’s past misconduct alone may not be adequate to demonstrate their present unfitness. Id. (quoting R.H., 2017 WL 875317, at *5). Here, most of the evidence consisted of testimony from Madison and Carolyn, and much of it conflicted. The disagreements included (1) M.L.D.’s hairstyle; (2) whether and how M.L.D. was sunburned on one occasion; (3) whether Carolyn strapped M.L.D. into a car seat while driving; (4) Carolyn’s poor disciplinary methods, although no evidence shows that any method caused M.L.D. physical or emotional harm; (5) whether removing M.L.D. from Appellees’ possession would cause anxiety or emotional issues, although Appellees offered no expert testimony or similar evidence to support that position; (6) Carolyn’s past treatment of her other 12 adopted daughter, who was an adult and no longer lived with her; (7) which party had a nicer home or greater financial stability; (8) who was present at drop-off or pick-up; (9) whether Carolyn knew that M.L.D. took dance lessons or attended school while in Madison’s possession; and (10) similar matters. Among other equally extreme behavior, the testimony at the final hearing does not show that Appellants were irresponsible, had a history of mental disorders or suicidal ideation, moved frequently, abused, severely neglected, or abandoned M.L.D., or that Appellants were “unstable, disorganized, [or that they lived a] chaotic lifestyle that has put and w[ould] continue to put [M.L.D.] at risk.” See In re S.T., 508 S.W.3d at 492. Yet, Appellees argue that they were not required to prove that Appellants participated in such egregious conduct. According to Appellees, courts have also held that removing a child from a nonparent could be “very traumatic on a child” as to amount to “psychological amputation,” causing “serious psychological damage.” See In re Rodriguez, 940 S.W.2d 265, 269 (Tex. App.—San Antonio 1997, writ denied). Appellees rely on this Court’s reasoning in In re J.Y., maintaining that a child’s stability and emotional bond with a non-parent caregiver, together with the disruption caused by removing the child from that environment, may support a finding of significant impairment. See In re J.Y., 528 S.W.3d at 686–87. We do not disagree with Appellees’ contention or with our reasoning in In re J.Y.; but as always, we must consider the issues in each case in light of the facts before us. That said, the facts in this case are quite different from those contained in In re J.Y. In addition, Appellees direct us to In re Rodriguez. In that case, the mother did not inform the biological father that she was pregnant. In re Rodriguez, 940 S.W.2d at 267. When the child was born, mother placed the baby for adoption 13 with a couple she selected. Id. The baby lived with the couple from the time she was born. Id. When father learned that he had a child, he sought custody of the child. Id. During trial, the couple presented expert testimony that separating the child from the only caretakers she had ever known would be psychologically devastating. Id. at 268. A jury determined that the couple should be named managing conservators. Id. at 269–71. The San Antonio Court of Appeals affirmed. Id. at 274–75. In doing so, the appellate court concluded that the expert-witness’ testimony demonstrated that it was in the child’s best interests for the couple to be named managing conservators. Id. In the present case, Madison testified, “Well, also [I] think it’s very detrimental that [Carolyn] took [M.L.D] away from where she had been living for two years. That was -- I can’t imagine good for [M.L.D.]’s mental health.” Madison also testified that M.L.D. had asked about Appellees and wondered when she would see them again. Yet, Carolyn testified that M.L.D. was always happy to return to Appellants’ home after spending time with Appellees. In addition to Carolyn’s and Madison’s opinions on the subject, Melea opined that she believed M.L.D. would be “seriously hurt” if Appellees were permanently removed from M.L.D.’s life and that she was concerned about M.L.D.’s emotional status. Unlike the circumstances found in In re Rodriguez, M.L.D. had not lived with Appellees since the day she was born, and Appellees were not the only caretakers M.L.D. had ever known. In addition, neither of the parties called an expert witness to testify as to the psychological or emotional devastation that would befall M.L.D. in the event she was permanently removed from Appellees’ possession. 14 Although some of Carolyn’s choices may have reflected less-than-perfect child-rearing, Appellees bore “a heavy burden that [was] not satisfied by merely showing that [they] would be a better custodian [to M.L.D.]” Critz v. Critz, 297 S.W.3d 464, 474–75 (Tex. App.—Fort Worth 2009, no pet.). Moreover, Appellees failed to show that removing M.L.D. from their possession would cause her “devastating,” or even significant, emotional impairment or psychological damage. Accordingly, the Court sustains Appellants’ first point of error. C. Relinquishment of Actual Care, Custody, and Control The trial court stated in its findings that “[t]he presumption that [Appellants] should be named as joint[-]managing conservators with the right to establish the primary residence of [M.L.D.] has been overcome based in part on the fact that they relinquished primary care, custody[,] and control of [M.L.D.]” Appellants maintain that Appellees failed to overcome the fit-parent presumption because they did not prove by a preponderance of the evidence that Appellants voluntarily relinquished actual care, custody, and control of M.L.D. The presumption that a parent should be appointed or retained as managing conservator of the child is rebutted if the court finds that: (1) the parent has voluntarily relinquished actual care, control, and possession of the child to a nonparent, a licensed child-placing agency, or the Department of Family and Protective Services for a period of one year or more, a portion of which was within [ninety] days preceding the date of intervention in or filing of the suit; and (2) the appointment of the nonparent, agency, or Department of Family and Protective Services as managing conservator is in the best interest[s] of the child. TEX. FAM. CODE ANN. § 153.373 (Supp.). 15 Appellees argue that Texas courts have held that a nonparent exercises “actual care, control, and possession” when “the nonparent serve[s] in a parent-like role by (1) sharing a principal residence with the child, (2) providing for the child’s daily physical and psychological needs, and (3) exercising guidance, governance, and direction similar to that typically exercised on a day-to-day basis by parents with their children.” In re H.S., 550 S.W.3d 151, 160 (Tex. 2018) (citing TEX. FAM. CODE ANN. § 102.003(a)(9)). According to Appellees, they proved beyond a preponderance of the evidence that Appellants relinquished actual care, control, and possession because, among other reasons, they acted in a “parent-like role” toward M.L.D. To the contrary, Carolyn’s testimony shows that she never relinquished actual care, control, or possession of M.L.D. to Appellees. She explained that during the approximately two and one-half years Appellees cared for M.L.D. on weekdays, Carolyn had her two or three weekends each month. Carolyn also relied on Appellees to care for M.L.D. when she was ill because she knew they loved M.L.D. and would take good care of her. Before their disagreement, Carolyn and Madison had a good relationship and worked well together to provide M.L.D. with a safe and happy life. Madison included Carolyn in M.L.D.’s life while M.L.D. was in Appellees’ possession. Madison also asked for Carolyn’s permission to keep M.L.D. for longer periods so M.L.D. could take part in additional activities with Appellees and their children. In addition, Carolyn continued to maintain a form of health insurance for M.L.D. More importantly, Madison admitted that M.L.D. stayed at Appellees’ home with Carolyn’s permission. Madison also agreed that, while M.L.D. was with Appellees, Carolyn remained “in charge” and had not given Appellees the right “to make health care decisions or 16 things like that.” Madison further explained that, before their disagreement, she and Carolyn “included each other on absolutely everything.” According to Madison, “There [were] no issues. We never, ever had an issue, a disagreement, on who kept [M.L.D.], where she went, never one time.” Madison’s testimony refutes Appellees’ contention that Appellants relinquished actual care, control, and possession of M.L.D. to them. Notably, the parties went their separate ways only after Madison asked Carolyn for authorization to make M.L.D.’s healthcare decisions. Carolyn’s refusal to grant Madison’s request is further evidence that Appellants did not relinquish actual care, control, and possession of M.L.D. to Appellees. The evidence shows that Appellees knew the circumstances in which they were allowed to care for and possess M.L.D.; that is, with Carolyn’s permission. Regardless, Appellees seemingly argue that this Court must affirm the trial court’s conservatorship findings and its legal conclusions because Appellants allowed M.L.D. to stay with Appellees at their residence, where they met M.L.D.’s daily needs and guided her on a day-to-day basis. See In re H.S., 550 S.W.3d at 160. Although the evidence shows that Appellees were responsible for M.L.D. while she was in their possession at their primary residence, it also shows that Carolyn provided for M.L.D.’s needs when M.L.D. was in Appellants’ possession at their primary residence. “When a parent and a nonparent are both seeking managing conservatorship, ‘close calls’ should be decided in favor of the parent.” In re Marriage of Mitchell, 585 S.W.3d at 48 (quoting R.H., 2017 WL 875317, at *5 (quoting Lewelling, 796 S.W.2d at 168)). Based on the evidence presented at trial, the Court finds that Appellees did not meet their burden of proving that Appellants voluntarily relinquished actual care, control, and possession of 17 M.L.D. to Appellees for a period of one year or more, a portion of which was within ninety days preceding the filing of the underlying litigation.11 We sustain Appellants’ second point of error.12 V. Conclusion Accordingly, we vacate the trial court’s final order, leave its temporary order intact, and remand the case for further proceedings consistent with this opinion. Charles van Cleef Justice Date Submitted: March 31, 2026 Date Decided: November 9, 2026 11 Appellees were required to present sufficient evidence to support subsections (1) and (2) of Section 153.373. See TEX. FAM. CODE ANN. § 153.373. Because we find that Appellees failed to meet their burden of proving beyond a preponderance of the evidence that Appellants voluntarily relinquished primary care, control, and possession of M.L.D., see TEX. FAM. CODE ANN. § 153.373(1), it is unnecessary for the Court to address whether Appellees proved, by a preponderance of the evidence, that it was in M.L.D.’s best interests to award them joint-managing conservatorship of M.L.D., with the exclusive right to determine her primary residence, see TEX. FAM. CODE ANN. § 153.373(2). 12 In their brief, Appellants also argue that the trial court’s final judgment (1) included a conclusory finding of significant impairment, and (2) violated their constitutional rights. In light of our conclusion above, we need not address Appellants’ remaining two points of error. 18