Bhan v. Danet (402 S.W.3d 668, 2012)

OPINION

TERRY JENNINGS, Justice.

Appellees, Bryan James Danet and William Todd Kranz, have filed a motion for rehearing and a motion for en banc reconsideration. See Tex.R.App. P. 49.3, 49.7. We deny Danet and Kranz’s motion for rehearing. And a majority of the Court has voted to deny their motion for en banc reconsideration. We withdraw our April 12, 2012 opinion, substitute this opinion in its place, and vacate our April 12, 2012 judgment.

Appellant, Jessica Bhan, challenges the trial court’s August 4, 2010 order, entered after a jury trial, appointing Danet and Kranz as the sole managing conservators of Bhan’s minor child. In her first two issues, Bhan 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, Bhan 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 Bhan and placed him in the foster care of Danet and Kranz. Although CPS chose not to seek termination of Bhan’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, Bhan filed an amended answer and original counter-petition, seeking appointment as the child’s sole managing conservator. On February 2, 2008, the parties entered into a “Rule 11 Agreement for Temporary Orders,” requesting that Kranz and Danet serve as temporary managing conservators of the child and Bhan as the temporary possessory conservator of the child during the pendency of court proceedings. On May 9, 2009, the trial court entered agreed temporary orders to the same effect.

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 Bhan’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, Bhan “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 ... two [weekends] a year” even though her visitation schedule allowed monthly visits. In addition, Bhan would occasionally bring with her “different men” whom the child did not know, and she never brought “the same person twice.”

Kranz explained that Bhan 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, with whom Bhan lived for five months before she moved to Houston. About four months after losing custody of the child, Bhan was arrested for “disturbance of the peace” after fighting with Alaniz in a Family Dollar store parking lot. Shortly thereafter, Bhan, pregnant with her second child, who was Alan-iz’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, Bhan told him that if she were to take a drug test, “it would turn out dirty.” Bhan 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, Bhan came to Houston for a weekend visit with the child. After visiting on a Saturday, Bhan 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, Bhan brought her younger son and a man, “Michael,” on her visit to the child. Afterwards, Bhan 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.” Bhan told Kranz that “the truck [had] disappeared, so [Bhan, her younger son, and Michael] had to take [a] bus back to Wisconsin,” leaving Bhan without a telephone. In watching Bhan 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 Bhan’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 [Bhan] comes into town.” Although Kranz and Danet encouraged Bhan 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 Bhan. 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 Bhan.

Linda McDonald, a co-worker and family friend of Kranz and Danet, testified that in August 2008, she supervised one of Bhan’s visits. When Bhan “wanted to make a special celebration” for the child’s birthday, they visited her at a local hotel where Bhan was staying. Bhan 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 Bhan 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 Bhan 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.

Bhan 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, Bhan 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, Bhan planned to escape from Alaniz’s abuse and take her child with her. The child had been diagnosed with “thrush,” a yeast infection, which, Bhan 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, Bhan 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 Bhan at the bus stop, confronted her, and accused her of being a “drug user.” He then “[took] off on a bicycle with” the child. Bhan 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 Bhan and Alaniz, took the child away in his patrol car. Bhan explained that because the officer had taken the child away, she did not have time to feed him or apply his thrush medication. Bhan 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 Bhan at the hearing.

After the hearing, Bhan 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. Bhan then returned to Houston for a second hearing, and CPS submitted to her a Family Service Plan (“FSP”). Bhan 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, Bhan 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 2006, Bhan 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. Bhan 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.

Bhan admitted that she had previously been arrested in Massachusetts on a charge relating to heroin, and, in 1999, she was convicted in Wisconsin of the offenses of possession of marijuana and battery. She also admitted that, in 2006, she had used cocaine while pregnant with her younger son, causing her to fail the court-ordered narcotics test. Bhan 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.

Bhan 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, Bhan 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 Bhan 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.

Standard of Review

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.

Both direct and circumstantial evidence may be used to. establish any material fact. Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex.2004). 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). However, “ ‘when 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., 135 S.W.3d at 601 (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex.1983)).

To raise a genuine issue of material fact, “the evidence must transcend mere suspicion.” Id. Evidence that “is so slight as to make any inference a guess is in legal effect no evidence.” Id. If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. City of Keller, 168 S.W.3d at 822. 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.

Significant Impairment

In her first issue, Bhan 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.” Bhan 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 appointed as the child’s sole managing conservators because removing the child from their home at the time of trial “would significantly impair his emotional development.” In support of this argument, they assert that:

[T]he jury heard evidence that [Bhan’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 [Bhan] was supposed to be watching him. And [Bhan] 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 [Bhan] sole managing conservatorship would significantly impair [the child’s] physical health or emotional development.

In any case involving an issue of conser-vatorship, the best interest of the child must always be the primary consideration of the trial court. Tex. Fam.Code Ann. § 153.002 (Vernon 2008). And 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 conservator-ship carry a “heavy burden” of overcoming this presumption. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.1990). It is not adequate to offer evidence that a nonpar-ent 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 [14th Dist.] 2010, pet. denied). Necessarily, the presumption may be overcome if “credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.” Tex. Fam.Code Ann. § 153.004(b) (Vernon 2008). In fact, the presentation of such “credible evidence” creates a rebuttable presumption that the appointment of the parent as sole managing conservator is not in the best interest of the child. Id. 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.

(Emphasis added.)

Bhan 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 in March 2006, 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 conser-vatorship would significantly impair the child’s physical health or emotional development.

In support of her assertion, Bhan 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 un-controverted 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.” May, 829 S.W.2d at 377.

Here, Kranz and Danet’s evidence concerning Bhan’s more recent conduct in Houston does reveal that Bhan brought different men with her on her visits with the child, came from Wisconsin to visit the child only twice a year after losing custody of him, showed up late to a visit, tried to board an airplane in Wisconsin while she was 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 also testified that the child, during one of Bhan’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 Bhan’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 Bhan’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 Bhan’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 Lewelling, 796 S.W.2d at 167.

Furthermore, Kranz and Danet’s evidence of Bhan’s more recent conduct does not itself constitute evidence that the appointment of Bhan 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.” Id.

In regard to the impairment of the child’s physical health, Kranz and Danet assert that the child “nearly drowned” during one of Bhan’s visits. Although Weiser testified 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: Bhan, Weiser, and Kranz. And Bhan had to watch her younger son as well during the visit. Kranz and Danet also cite the child’s “diaper rash” when CPS initially removed him from Bhan’s home in March 2006. However, Bhan’s uncontroverted testimony and supporting medical records established that she had taken the child to a doctor, who diagnosed the child with thrush and prescribed medication. Bhan further testified that she had called the doctor a second time regarding the rash in late March 2006, and the doctor told her to continue treatment. Given the undisputed facts, we hold that the jury could not have reasonably concluded that these incidents constitute evidence that awarding custody of the child to Bhan would significantly impair the child’s physical health.

In regard to impairment of the child’s emotional development, the jury could have reasonably inferred that Kranz and Danet would be better custodians of the child based on Bhan’s criminal record and her 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 Bhan’s conduct, albeit clearly inappropriate, constitutes “specific actions or omissions” that demonstrate that awarding her conservatorship would significantly impair the child’s emotional development. See Tex. Fam.Code ANN. § 151.181(a). Kranz and Danet provided no evidence explaining how any of the above conduct would contribute to significant impairment of the child’s emotional development were he to be placed in Bhan’s custody. See Lewelling, 796 S.W.2d at 166 & n. 3 (noting strength of parental presumption and suggesting that “[w]ith regard to impairment of emotional development, it would seem that very strong psychological or psychiatric testimony would have to be offered”) (quoting Wieoff, Joint Managing Conser-vatorship P-22, State Bar of Texas Advanced Family Law Course (1987)). And, as stated above, Bhan’s criminal convictions, which all occurred four or more years prior to trial, could not reasonably support a conclusion that her parental fitness at the time of trial would have resulted in significant impairment to the child’s emotional development. Given the strength of the parental presumption, we hold that the jury could not have reasonably concluded that awarding custody of the child to Bhan would result in significant impairment to the child’s emotional development.

In Lewelling, the trial court appointed a child’s paternal grandparents as the managing conservators of the child because it found that naming the mother as the managing conservator would significantly impair the child’s physical health and emotional development. 796 S.W.2d at 165. The court of appeals affirmed, citing the mother’s continuing relationship with her physically abusive ex-husband, failure to visit the child for “approximately two months” after her ex-husband took the child, unemployment, residence in “a small house with her mother and other family members,” and admission to a psychiatric hospital on two occasions. Id. at 165-66. However, the supreme court concluded that the mother’s unemployment and living conditions did not constitute evidence of significant impairment. Id. at 167. And her admissions to the psychiatric hospital did not constitute evidence of significant impairment in light of her uncontradicted testimony that she was discharged both times “because she had no mental problems.” Id. The supreme court also noted that her actions in returning to her abuser could be explained as “symptoms of what has been termed ‘the battered women syndrome,’” and it noted that a “parent should not be denied custody of a child based on the fact that he or she has been battered.” Id. at 167 & n. 6.

Likewise, here, many of the concerns regarding Bhan’s past drug use and criminal convictions similarly do not support a conclusion that the child would suffer significant impairment to his physical health or emotional development. Bhan underwent drug counseling for one and one-half of a year prior to trial. And, although Bhan may have engaged in some poor parenting practices in the past, there was uncontradicted testimony that she had completed several courses involving “effective parenting” and “infant/toddler care” and planned to attend family counseling with the child during the transition into her custody. And, as in Leuielling, Bhan’s actions in maintaining some contact for a short time with Alaniz in November 2006, also more than four years before trial, and then moving to Wisconsin in an effort to escape Alaniz, can be explained as a response to spousal abuse. See id.

Although our dissenting colleague characterizes Bhan as, among other things, “drug-addicted,” “promiscu[ous],” and “indigent],” Danet and Kranz in their briefing to this Court do not so label her. Indeed, CPS decided not to seek termination of Bhan’s parental rights. In October 2007, Danet and Kranz filed their SAPCR petition to be appointed joint managing conservators of Bhan’s biological child. It is true that Danet and Kranz in their SAPCR against Bhan had a lower burden of proof, i.e., “a preponderance of the evidence,” than CPS would have had against Bhan to terminate her parental rights, i.e., “clear and convincing evidence.” However, the bottom line is that Danet and Kranz had the burden to overcome the presumption in favor of Bhan by presenting evidence of “specific actions or omissions” of Bhan “that demonstrate that an award of custody to [her] would result in physical or emotional harm to the child.” A review of the record in the light most favorable to Danet and Kranz reveals that they presented no evidence of any such “specific actions or omissions.” Again, evidence that a nonparent would be a better custodian of a child is not enough to carry the “heavy burden” of overcoming the presumption that it is in the best interest of the child that his biological parent be appointed as sole managing conservator. Id. at 167.

Finally, Kranz and Danet argue that, even without reference to Bhan’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.) (mem. op.) (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.) Bhan notes. that the charge explicitly required Kranz and Dan-et 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.” See Osterberg 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.” Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782 (Tex.App.-Houston [1st Dist.] 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.3d 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 Bhan 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 Bhan’s specific acts or omissions from which a fact-finder could reasonably infer that the appointment of Bhan, the child’s biological parent, as sole managing conservator of the child would significantly impair the child’s physical health or emotional development.

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 Bhan, whether by her moving to Wisconsin or visiting the child only twice a year, on average, since losing custody, Bhan notes that she moved to Wisconsin to escape from Alaniz and live 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 conser-vatorship of her child would “thwart[ ] the legislatively-mandated parental preference.” Id.

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 Bhan’s first issue.

Having sustained Bhan’s first issue and held that the evidence is legally insufficient to support the jury’s findings, we need not address whether the evidence is factually insufficient to support the jury’s finding that Kranz and Danet, as non-parents, should be named the child’s managing conservators, or address her second issue, in which she contends that the trial court erred in not allowing her to present testimony from out-of-state witnesses via telephone.

Conclusion

We reverse the order of the trial court and render an order appointing Bhan 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.

A majority of the Court voted to deny en banc reconsideration. See Tex.R.App. P. 49.7.

Chief Justice RADACK and Justices JENNINGS, KEYES, HIGLEY, SHARP, MASSENGALE, BROWN, and HUDDLE participated in the vote to determine en banc reconsideration. Justice BLAND, not sitting.

Justice KEYES, dissenting from the denial of en banc reconsideration.

. See Tex. Fam.Code Ann. § 153.005 (Vernon 2008).

. See Tex.R. Civ. P. 11.

. Although not raised by Danet and Kranz, our colleague, in her dissent to the denial of en banc reconsideration, argues that Danet and Kranz rebutted the parental presumption ' by presenting "credible evidence” that Bhan had a history of "past or present child neglect.” See Tex. Fam.Code Ann. § 153.004(b) (Vernon 2008). However, the record before us contains no such evidence, and, more important, Danet and Kranz did not request that the trial court instruct the jury on the rebutta-ble presumption contained in section 153.004(b). The issue of “past or present child neglect” simply was not presented to the jury to consider. Thus, the controlling issue before us is whether the record contains evidence of any "specific actions or omissions” by Bhan that demonstrate that an award of custody to her would result in significant impairment to the child’s physical health or emotional development.

. Again, we note that Danet and Kranz did not request that the trial court instruct the jury on the rebuttable presumption contained in Family Code section 153.004(b), and, thus, the issue of "past or present child neglect” was not presented to the jury for its consideration.

. In her third issue, Bhan 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 Jessica Bhan as the sole managing conservator ... Bhan 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 Dan-et] as possessory conservators.” See Tex.R. Civ. P. 11. Because we reverse the judgment of the trial court and render judgment in favor of Bhan, 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).

EVELYN V. KEYES, Justice,

dissenting from denial of en banc reconsideration.

I respectfully dissent from the denial of en banc reconsideration in this case. The panel finds the evidence legally insufficient to support the trial court’s order granting sole managing conservatorship of a thriving six-year-old child to the foster parents, appellees Bryan Danet and Todd Kranz. Danet and Kranz have raised J.A.B. since Children’s Protective Services (“CPS”) took him from his drug-abusing mother, appellant Jessica Bhan, at the age of seven months following an episode of family violence. When he was removed from Bhan’s custody, J.A.B. had a severe diaper rash and was “starving.” Bhan spent the weekend taking cocaine with a stranger in a hotel room, and she then moved to Wisconsin and did not attempt to contact J.A.B for more than six months, until after CPS initiated termination proceedings. There is no evidence that her lifestyle has since changed. Rather, the record shows that Bhan has a history of drug abuse, alcohol abuse, arrests and convictions, promiscuity, indigence, and neglect and endangerment of J.A.B. She has seen J.A.B. only sporadically in supervised situations since he was seven months old. Although she has completed a few parenting courses, she has produced no evidence that she completed her Family Services Plan, that she no longer has problems with drug and alcohol abuse, that she can support herself, that she is no longer promiscuous, that she has stable employment, that she has a stable home herself or can provide one for J.A.B., or that she can and will otherwise provide for J.A.B’s physical and emotional welfare. It is undisputed that J.A.B.’s foster parents, Danet and Kranz, have provided a loving and stable home for J.A.B. and that he is thriving in their care.

Despite these facts, the panel reverses the trial court’s order on the jury verdict that granted joint managing conservator-ship of J.A.B. to Danet and Kranz and denied possession to Bhan, with access at Danet and Kranz’s discretion. The panel then awards sole managing conservator-ship to Bhan, who plans to remove J.A.B. immediately from the state and take him to live with herself and her mother in public housing in Wisconsin. Bhan’s mother, according to Bhan’s testimony, is in ill health and without economic resources and therefore has not visited J.A.B.; and she did not intervene or otherwise participate in the conservatorship proceedings. Bhan testified that she herself had been working prior to traveling to Houston for the trial, but she did not know whether she would still have a job when she got back to Wisconsin. The circumstances into which J.A.B. is to be taken and Bhan’s plans and capacity to provide for his present and future physical and emotional welfare are otherwise entirely unknown to the appellate court.

In my view, the panel incorrectly applies both the standard of proof and the standard of evidentiary review in conservator-ship cases. It misconstrues the scope of relevant evidence both at trial and on appeal, and it erroneously ignores the jury’s findings and the trial court’s mandatory entry of judgment on those findings and substitutes itself for the finder of fact and trial judge. Nor does the case law it relies upon support its rulings. The result is that this case conflicts with similar cases from our sister appellate courts, the Texas Supreme Court, and the governing statutes.

I am particularly troubled because I believe the panel’s judgment directly contravenes the purpose and provisions of Family Code Chapter 153, governing suits affecting conservatorship and possession of and access to a child, and other controlling law, and it sets a very bad precedent for this Court in deciding such cases. This is especially the case when, as here, a child has been removed from the custody of a parent by CPS for abuse or neglect, and CPS has ultimately decided not to move to terminate the parent’s rights to the child but, instead, to place the child in a safe and nurturing environment until the parent’s circumstances are substantially changed for the better or termination becomes clearly appropriate, rather than to retain the child in its own custody with all the attendant uncertainties. With respect to this particular case, I believe the panel’s judgment is contrary to J.A.B.’s best interest and, if put into effect, will have the immediate and foreseeable result of returning him to the sole managing custody of a parent whose history and pattern of neglect of J.A.B. has not materially changed since he was removed from her care at the age of seven months, and that is foreseeably certain to significantly impair his emotional development or physical health.

Texas Rule of Appellate Procedure 41.2 provides, “En banc consideration of a case is not favored and should not be ordered unless necessary to secure or maintain uniformity of the court’s decisions or unless extraordinary circumstances require en banc consideration.” Tex.R.App. P. 41.2(c). This case merits en banc review on both grounds. Therefore, I respectfully dissent from the denial of en banc reconsideration.

I would affirm the order of the trial court, entered on the jury verdict, appointing Danet and Kranz as the sole managing conservators of J.A.B and denying Bhan possession of J.A.B.

Background

The panel opinion contains many of the facts necessary to decide the case. The following facts are added to supplement, and, in some respects, correct its statement of relevant facts.

On March 31, 2006, when J.A.B. was seven months old, CPS removed him from Bhan’s custody and placed him in the foster care of Danet and Kranz. CPS sought termination of Bhan’s parental rights. Apparently CPS decided, however, instead of terminating Bhan’s parental rights, to attempt to preserve those rights by imposing a Family Service Plan, the successful completion of which would permit her to regain conservatorship of J.A.B. The termination suit was scheduled to be heard or dismissed on October 2, 2007. On that date, Danet and Kranz filed this suit affecting the parent-child relationship (“SAPCR”), seeking appointment as J.A.B.’s joint managing conservators until a hearing could be held on permanent custody. Although there is evidence in the record that, since J.A.B.’s removal, Bhan completed several parenting courses, there is no evidence in the record that she fully complied with her Family Services Plan.

The trial court entered agreed temporary orders on May 9, 2009, naming Danet and Kranz nonparent joint managing conservators and Bhan a possessory conservator with supervised visitation rights twice a month. At the time the case was ordered to trial, over repeated motions for continuances and delays by Bhan’s trial counsel, Danet and Kranz’s motion seeking to hold her in contempt for failure to pay court-ordered child support was pending.

The jury heard testimony at trial which established that Joseph Alaniz, the person originally presumed to be J.A.B.’s father and with whom J.A.B. and Bhan were living when CPS removed J.A.B., is not J.A.B.’s father; and he has never had any further contact with J.A.B. In the year between the time J.A.B. was removed from Bhan’s custody and the time CPS decided not to seek termination of Bhan’s parental rights and Danet and Kranz filed this suit, seeking to be named managing conservators of J.A.B., Bhan saw J.A.B. infrequently, and she missed scheduled visitations and a court date, had another child by Alaniz, and had domestic violence committed against her by Alaniz, posing the threat of danger to J.A.B. should he be returned to her care at that time. The evidence further revealed that in the years intervening since Danet and Kranz were awarded temporary custody of J.A.B., Bhan has had an ongoing history of drug and alcohol abuse and promiscuity, she has neglected to keep scheduled visits with J.A.B., and she has neglected him even when she kept scheduled visits. At trial, Bhan demonstrated no plans to provide J.A.B. with a stable and nurturing home. Rather, she testified that she intends to take him out of state to live in public housing in Wisconsin with herself and her invalid mother, who took no part in these proceedings and whose contact with J.A.B. at any time in his life, if any, is not reflected in the record. Bhan is uncertain whether she will have a job when she gets back to Wisconsin with J.A.B. Danet and Kranz both testified that they loved J.A.B. and treated him as their own son and that J.A.B. was a happy, secure little boy who had bonded with them and treated them as his parents. This testimony was uncontro-verted.

At trial, the jury was correctly instructed that “[t]he best interest of the child shall always be the primary consideration in determining questions of conservator-ship,” and it was properly instructed in the non-exhaustive list of factors to determine a child’s best interest, commonly known as the Holley factors, namely:

(1) the desires of the child;

(2) the emotional and physical needs of the child now and in the future;

(3) the emotional and physical danger to the child now and in the future;

(4) the parental abilities of the individual seeking custody;

(5) the programs available to assist the individual to promote the best interest of the child;

(6) the plans for the child by the individual or by the agency seeking custody;

(7) the stability of the home or proposed placement;

(8) the acts or omissions of the parent, or potential conservator, that may indicate that the existing relationship is not a proper one; and

(9) any excuse for the acts or omissions of the parent or potential conservator.

See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex.1976) (listing factors often used for determining best interest of child); see also In re Doe 2, 19 S.W.3d 278, 282 n. 20 (Tex.2000) (recognizing that intermediate appellate courts use Holley factors to ascertain best interest of child in conserva-torship cases).

The jury was likewise correctly instructed on the nature of possessory and managing conservatorship of parents and non-parents, the presumption in favor of the biological parent retaining custody, and the evidence required to rebut the presumption and to determine conservator-ship. It was instructed, “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.” See Tex. Fam. Code ANN. § 153.131(a) (Vernon 2008). It was also instructed that the term “ ‘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.” Finally, the jury was instructed that if it found that Danet and Kranz should be appointed joint managing conservators, Bhan should be appointed a possessory conservator unless it found by a preponderance of the evidence that her appointment was not in the best interest of J.A.B. and would endanger his physical or emotional welfare.

The jury found that it was in the best interest of J.A.B. that Danet and Kranz be appointed joint managing conservators. It further found, by a preponderance of the evidence, that appointment of Bhan as pos-sessory conservator was “not in the best interest of the child and that possession or access by [Bhan] would endanger the physical or emotional welfare of the child” and that, therefore, Bhan should not be appointed possessory conservator of J.A.B.

In its final order, the trial court recited the jury’s finding that “appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development” and its finding that “appointment of JESSICA BHAN as a possessory conservator would not be in the best interest of the child.” It appointed Danet and Kranz joint managing conservators of J.A.B. and gave them discretion over “[a]ny possession and access to the child by JESSICA BHAN” until J.A.B. turns eighteen years old.

The panel reverses all of the determinations of the jury and the trial court, and it appoints Bhan as sole managing conservator of J.A.B.

Standards of Proof and Review in Conservatorship Proceedings

1. Legislative Intent in Conservator-ship Proceedings: Texas Family Code Section 153.002, Best Interest of the Child

The public policy of this state with respect to conservatorship, possession, and access is to “assure that children will have frequent and continuing contact with parents who have shown the ability to act in the best interest of the child” and to “provide a safe, stable, and nonviolent environment for the child.” Tex. Fam.Code Ann. § 158.001 (Vernon 2008). Therefore, the Legislature has mandated that “[t]he best interest of the child shall always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child.” Id. § 153.002 (Vernon 2008).

2. Standard of Review in Conservator-ship Proceedings

It is worth emphasizing that this is a conservatorship proceeding, not a termination proceeding. “The termination of parental rights and the appointment of a non-parent as sole managing conservator are two separate and distinct issues, each requiring different elements to be proven, different standards of proof, and different standards of review.” Mann v. Dep’t of Family & Protective Servs., No. 01-08-01004-CV, 2009 WL 2961396, at *14 (Tex. App.-Houston [1st Dist.] Sept. 17, 2009, no pet.) (mem. op.); cf. Tex. Fam.Code Ann. § 153.131(a) (Vernon 2008) (providing presumption that biological parent is to be named managing conservator), § 161.001 (Vernon Supp.2012) (providing grounds for termination of parent-child relationship); see also In re J.A.J., 243 S.W.3d 611, 615-17 (Tex.2007).

The Texas Supreme Court set out the differences between the two types of proceedings in In re J.A.J. “First, the elements necessary to terminate parental rights may differ from the factors that must be taken into account when deciding who should be appointed a child’s managing conservator.” In re J.A.J., 243 S.W.3d at 615. Family Code section 161.001(1) requires a court to find one or more of the nineteen criteria listed in the section and defines “with some precision” specific parental conduct that may justify termination. Id. Section 153.131(a), by contrast, imposes a more general standard for determining managing conservatorship that “does not enumerate specific acts or omissions by the parent, but instead requires the court to find that appointing a parent would not be in the child’s best interest because it would ‘significantly impair the child’s physical health or emotional well-being.’” Id. at 616 (quoting Tex. Fam. Code Ann. § 153.131(a)). Thus, the evidence may be insufficient for termination under section 161.001(1) while “still supporting] the determination that appointment of a parent as conservator would impair the child’s physical health or emotional development for reasons unrelated to the section 161.001(1) criteria.” Id.

These differing standards of proof affect the method of appellate review, which is more stringent for termination cases than for conservatorship cases. Id. Due process concerns arising from the permanency of termination require that a termination decision be supported by “clear and convincing evidence.” Id. In evaluating the factual sufficiency of the evidence to support termination, the appellate court must consider “whether the evidence is such that a factfinder could reasonably form a firm belief or conviction about the truth of the State’s allegations,” and legal-sufficiency review is conducted under a “similarly heightened” standard. Id. (quoting In re C.H., 89 S.W.3d 17, 25 (Tex.2002)); see also In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002) (describing how clear and convincing standard impacts legal-sufficiency review in termination cases).

By contrast, “a finding that appointment of a parent as managing conservator would significantly impair the child’s physical health or emotional development is governed by a preponderance-of-the-evidenee standard.” In re J.A.J., 243 S.W.3d at 616. “A party is entitled to a jury trial on the issue of appointment of a managing conservator....” In re D.A., 307 S.W.3d 556, 561 (Tex.App.-Dallas 2010, no pet.) (citing Tex. Fam.Code Ann. § 105.002). And the trial court may not enter an order in contravention of the jury’s verdict. In re 243 S.W.3d at 616 n. 5 (citing Tex. Fam.Code Ann. § 105.002(c)(1)(A)); In re D.A., 307 S.W.3d at 561. The jury’s findings underlying a conservatorship decision are subject to ordinary legal and factual sufficiency review on appeal, rather than the clear and convincing standard applicable to termination proceedings. In re J.A.J., 243 S.W.3d at 616 n. 5; In re D.A., 307 S.W.3d at 561.

Finally, conservatorship determinations are “subject to review only for abuse of discretion, and may be reversed only if the decision is arbitrary and unreasonable.” In re J.A.J., 243 S.W.3d at 616. “The trial court is given wide latitude in determining the best interests of a minor child.” Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex.1982); In re 307 S.W.3d 846, 849 (Tex.App.-Fort Worth 2010, no pet.). Thus, to determine whether a trial court abused its discretion, the appellate court must decide whether the court acted without reference to any guiding rules or principles, that is, whether its decision was arbitrary or unreasonable. Low v. Henry, 221 S.W.3d 609, 614 (Tex.2007); In re 307 S.W.3d at 849. “An abuse of discretion does not occur when the trial court bases its decisions on conflicting evidence.” In re 307 S.W.3d at 849 (citing In re Barber, 982 S.W.2d 364, 366 (Tex.1998) (orig. proceeding)). Nor does an abuse of discretion occur so long as there is some evidence of substantive and probative character to support the trial court’s decision. Id. (citing Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex.2002)).

Moreover, the trial court retains jurisdiction to modify a conservatorship order when it is in the child’s best interest and the parent’s circumstances have changed materially and substantially. In re J.A.J., 243 S.W.3d at 617; see Tex. Fam.Code Ann. §§ 156.001 (Vernon 2008) (providing that court with continuing exclusive jurisdiction may modify order providing for conserva-torship, support, possession of, or access to child), 156.101 (Vernon Supp.2012) (providing grounds for modifying order establishing conservatorship or possession and access). And a parent has standing to sue to modify a conservatorship order. In re J.A.J., 243 S.W.3d at 617; see Tex. Fam. Code Ann. §§ 156.002 (Vernon Supp.2012) (stating that person who has standing to sue under Chapter 102 may file suit for modification), 102.003(a)(1) (Vernon Supp. 2012) (providing that parent has standing to file original custody suit). This is not the case with termination, which is permanent and irrevocable. In re J.A.J., 243 S.W.3d at 616.

In conducting a legal sufficiency review in conservatorship cases, an appellate court reviews all the evidence in a light favorable to the finding, crediting favorable evidence if a reasonable fact-finder could do so and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex.2005). In reviewing a no-evidence point, the appellate court must view evidence in the light that tends to support the finding of the disputed fact, and it must disregard all evidence and inferences to contrary. Lenz v. Lenz, 79 S.W.3d 10, 13-14 (Tex.2002); Lewelling v. Lewelling, 796 S.W.2d 164, 166 (Tex.1990); In re D.A., 307 S.W.3d at 561. The appellate court will sustain a legal-sufficiency or “no-evidence” challenge if the record shows (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, 168 S.W.3d at 810. Thus, the court will sustain a legal sufficiency challenge only when the evidence is “so weak as to do no more than create a mere surmise or suspicion.” Kroger Tex. Ltd. P’ship v. Suberu, 216 S.W.3d 788, 793 (Tex.2006). “ ‘[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)); In re D.A., 307 S.W.3d at 561.

If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it. City of Keller, 168 S.W.3d at 822. However, if the evidence 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. The trial court is in a better position to decide custody cases because “it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent.” In re J.R.D., 169 S.W.3d 740, 743 (Tex.App.Austin 2005, pet. denied).

Thus, to determine legal sufficiency of the evidence in this conservatorship case, we must determine whether more than a scintilla of evidence exists to support the jury’s findings that appointment of Danet and Kranz as joint managing conservators was in J.A.B.’s best interest and that appointment of Bhan as possessory conservator was “not in the best interest of the child and that possession or access by [Bhan] would endanger the physical or emotional welfare of the child.” See Lewelling, 796 S.W.2d at 166. And we must view the evidence in the light that tends to support the finding of the disputed fact and disregard all evidence and inferences to the contrary. Lenz, 79 S.W.3d at 13-14.

To determine whether the evidence is factually sufficient to support the trial court’s order, we must consider, weigh, and examine all of the evidence that supports or contradicts the fact-finder’s determination. See 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) (per curiam).

When conducting a factual sufficiency review, we must not merely substitute our judgment for that of the fact-finder. Golden Eagle Archery, Inc. 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. Thus, to determine the factual sufficiency of the evidence to support the trial court’s judgment, we must consider all the evidence. In this case, we may overturn the judgment naming Danet and Kranz managing conservators and giving them the right to determine Bhan’s access to J.A.B. on factual sufficiency grounds only if the jury’s findings and the trial court’s judgme