In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-26-00346-CV
IN RE AMBER GENE WARD, RELATOR
ORIGINAL PROCEEDING
September 18, 2026
MEMORANDUM OPINION
Before PARKER, C.J., and DOSS and YARBROUGH, JJ.
Relator, Amber Gene Ward, petitions this Court to issue a writ of mandamus
against the Honorable Jerod Pingelton, Judge of the County Court at Law of Moore
County. Ward asserts that the trial court abused its discretion by issuing temporary orders
which changed conservatorship and the party with the right to designate the child’s
primary residence when there was insufficient evidence to support a finding that the
child’s present circumstances would significantly impair the child’s physical health or
emotional development. We conditionally grant the petition.
BACKGROUND
Ward and Wayne Michael Fox, Jr., are the parents of A.G.F.1 Upon dissolution of
their marriage in October of 2022, the trial court signed an agreed final decree of divorce
and appointed Ward as sole managing conservator and Fox as possessory conservator.
Fox was given visitation rights with a “stepped up” possession schedule and ordered to
pay child support. Following the divorce, Fox lived in Ohio, while Ward remained in
Texas. In March of 2026, Fox and his mother visited A.G.F. for the first time in more than
three years. In April of 2026, Fox filed a petition to modify the parent-child relationship
seeking to be named sole managing conservator. He asserted in the petition that Ward
had engaged in a history or pattern of child neglect, making specific allegations supported
by affidavit. The petition sought temporary orders concerning the immediate possession
of A.G.F. and the right to establish her primary residence. The trial court issued a
temporary restraining order preventing Ward from having access to A.G.F. until a hearing
was held.
A temporary order hearing was held on May 11, 2026. Testimony at that hearing
established that Fox had a two-week visitation with A.G.F. in March of 2026. During that
visitation, Fox testified that he was concerned about A.G.F.’s hygiene, noting body odor,
a blackhead on her nose, and a cavity. Fox also testified that A.G.F. eats “super fast,”
asks for food again roughly ten minutes after finishing a meal, and weighs 97 pounds at
five years of age. He described a house where Ward and A.G.F. lived at 823 Beard
Avenue as being in a “horrible state.” Without going inside that home, Fox observed “a
1 We will refer to the minor child by her initials to protect her privacy. See TEX. FAM. CODE § 109.002(d); TEX. R. APP. P. 9.8(b).
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lot of trash everywhere” and garbage stacked up “two or three feet high in the air.”
Amongst the trash, he recognized a doll house that he had sent to A.G.F. in 2025 for
Christmas. He acknowledged that Ward and A.G.F. were not living in that home in March
and that he did not see the apartment where Ward and A.G.F. were living. Ward testified
that she and A.G.F. moved from the house on Beard Avenue into the apartment in
November of 2025. However, Heaven Reece, a neighbor who lives in an apartment next
door to Ward, testified that Ward, her mother, and A.G.F. moved into the apartment in
March of 2026. A woman named Brittney and her two children, Haley and Ryder, share
the apartment with Ward. Reece testified that Ward told her Brittney’s twelve-year-old
son, Ryder, “pees on [A.G.F.].” Ward testified that the incident was “a one[-]time thing”
that happened when A.G.F. and Haley were playing in the living room and involved Ryder
squirting water from a concealed bottle to make it appear that he was urinating. Ward
further testified that CPS investigated the matter as possible neglectful supervision and
ruled out the allegation. Other allegations of physical neglect and A.G.F.’s hygiene were
also ruled out.
The trial court entered temporary orders appointing Fox as a temporary joint
managing conservator with the exclusive right to designate the primary residence of
A.G.F., gave Ward supervised visitation under a standard possession order, and ordered
her to pay child support. Ward filed her petition for writ of mandamus and motion for
emergency relief on July 31, 2026, and, at our request, Fox filed a response on August
21, 2026.
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MANDAMUS STANDARD OF REVIEW
Mandamus is an extraordinary remedy granted only when a relator can show that
(1) the trial court clearly abused its discretion, and (2) no adequate appellate remedy
exists. In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding)
(per curiam). A trial court clearly abuses its discretion when it reaches a decision so
arbitrary and unreasonable as to amount to a clear and prejudicial error of law. Walker
v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). When seeking
mandamus relief, the relator bears the burden of proving these two requirements. Id. at
840. Trial courts have no discretion in determining what the law is or applying the law to
the facts. In re Allstate Indem. Co., 622 S.W.3d 870, 875–76 (Tex. 2021) (orig.
proceeding). As to the resolution of factual issues or matters committed to the trial court’s
discretion, we may not substitute our judgment for that of the trial court unless the relator
establishes that the trial court could reasonably have reached only one decision and that
the trial court’s decision is arbitrary and unreasonable. Walker, 827 S.W.2d at 839–40.
Under the abuse of discretion standard, we defer to the trial court’s factual determinations
if they are supported by the evidence. In re Labatt Food Serv., L.P., 279 S.W.3d 640,
643 (Tex. 2009) (orig. proceeding). The trial judge, as the trier of fact, may draw
reasonable inferences from the evidence, and his findings of fact may not be disregarded
on appeal unless the record contains no evidence of probative value from which these
inferences may be drawn, or unless the findings are so contrary to the overwhelming
weight of the evidence as to be manifestly wrong. IFG Leasing Co. v. Ellis, 748 S.W.2d
564, 565–66 (Tex. App.—Houston [1st Dist.] 1988, no writ).
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Because a trial court’s temporary orders are not appealable, mandamus is an
appropriate means to challenge them. See, e.g., In re Derzapf, 219 S.W.3d 327, 334–35
(Tex. 2007) (orig. proceeding) (per curiam); Little v. Daggett, 858 S.W.2d 368, 369 (Tex.
1993) (orig. proceeding) (per curiam).
ANALYSIS
In her sole issue, Ward contends the trial court abused its discretion by rendering
temporary orders that removed her exclusive right to designate the primary residence of
A.G.F. because the evidence was insufficient to establish that the child’s present
circumstances would significantly impair the child’s physical health or emotional
development.
As is relevant to this case, during the pendency of a suit for modification, the Texas
Family Code generally prohibits a trial court from issuing a temporary order that has the
effect of changing the designation of the person who has the exclusive right to designate
the primary residence of the child under the final order unless: (1) the temporary order is
in the best interest of the child, and (2) “the order is necessary because the child’s present
circumstances would significantly impair the child’s physical health or emotional
development.” TEX. FAM. CODE § 156.006(b)(1).2 Section 156.006 imposes a high burden
on the movant to present sufficient evidence that a child’s present circumstances
significantly impair his or her physical health or emotional development. In re Walser,
648 S.W.3d 442, 446 (Tex. App.—San Antonio 2021, orig. proceeding). The “significant
2 Further reference to provisions of the Texas Family Code will be by reference to “section __” or
“§ __.”
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impairment” standard requires evidence of bad acts or omissions committed against the
child. Id. at 446. “A general concern as to the child’s emotional development is not
enough to show a significant impairment . . . .” In re Morehead, No. 06-21-00052-CV,
2021 Tex. App. LEXIS 6775, at *4 (Tex. App.—Texarkana Aug. 18, 2021, orig.
proceeding) (mem. op.).
At the outset, we note that the temporary orders contain no express finding that
A.G.F.’s present circumstances would significantly impair her physical health or emotional
development. See § 156.006(b)(1). Instead, the orders merely recite that they “are for
the safety and welfare and in the best interest of [A.G.F.].” Implying all necessary findings
in favor of the trial court’s temporary order, the evidence presented at the hearing does
not rise to the level that could support the order under section 156.006(b)(1). See In re
Serio, No. 03-14-00786-CV, 2014 Tex. App. LEXIS 13791, at *4–5 (Tex. App.—Austin
Dec. 23, 2014, orig. proceeding) (mem. op.) (“The record presented here does not contain
explicit findings supporting the temporary order under section 156.006 of the Family
Code, nor does it contain evidence of relator’s serious acts or omissions from which we
may imply the necessary findings that the children’s emotional development, in their
present circumstances, would be significantly impaired.”); In re Charles, No. 03-17-00731-CV, 2017 Tex. App. LEXIS 11234, at *10–11 (Tex. App.—Austin Dec. 1, 2017,
orig. proceeding) (mem. op.).
Fox’s concerns primarily related to A.G.F.’s hygiene, weight, eating habits, and
appearance. However, his concerns had not risen to the level for him to take A.G.F. to a
doctor. Even accepting those concerns as true, they do not constitute evidence of specific
actions or omissions by Ward demonstrating that A.G.F.’s present circumstances would
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significantly impair her physical health or emotional development. See In re Tindell, No.
03-18-00274-CV, 2018 Tex. App. LEXIS 5309, at *19 (Tex. App.—Austin July 12, 2018,
orig. proceeding) (mem. op.) (concerns that child was malnourished and underweight
insufficient to support temporary order changing parent with right to name child’s primary
residence); In re Charles, 2017 Tex. App. LEXIS 11234, at *11 (evidence that child wore
dirty, ill-fitting, or damaged clothes and shoes, and that her hair, body, and underwear
were frequently dirty, unkempt, and soiled, does not rise to the level of showing
“significant impairment.”).
Fox also expressed concern regarding the living conditions of Mother’s home at
823 Beard Avenue. Fox admitted that he knew that Ward and A.G.F. were not living in
the house on Beard Avenue when he asked his friend, Billy, to enter the house and take
photographs of it on March 22. Thus, when Fox filed his petition to modify on April 30,
Ward and A.G.F. no longer lived in the Beard Avenue house. He acknowledged that
Ward had previously given him her new apartment address. Even if the trial court chose
not to believe Ward’s testimony that she moved out of the home approximately six months
before the hearing, evidence of the condition of the Beard Avenue residence cannot serve
as a basis from which the trial court could find that A.G.F.’s present circumstances
significantly impaired her physical health or emotional development. In re Walser, 648
S.W.3d at 447–48; In re Rather, No. 14-11-00924-CV, 2011 Tex. App. LEXIS 9625, at
*4–5 (Tex. App.—Houston [14th Dist.] Dec. 8, 2011, orig. proceeding) (mem. op.)
(evidence that mother’s prior home was messy and unsanitary was insufficient to support
temporary order’s change in conservator without evidence of how conditions significantly
impaired child’s physical health or development). The only evidence regarding A.G.F.’s
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current home was offered by Ward. Ward testified that she and A.G.F. had moved into
her friend Brittney’s apartment in November of 2025. She testified as to the sleeping
arrangements and introduced photographs of the apartment which showed the home to
be clean and appropriate. Moreover, Ward testified that CPS investigated allegations
relating to neglectful supervision and physical neglect that ruled out each allegation. See
In re Kyburz, No. 05-15-01163-CV, 2015 Tex. App. LEXIS 11642, at *3–4 (Tex. App.—
Dallas Nov. 10, 2015, orig. proceeding) (mem. op.) (evidence that CPS had investigated
whether children were dirty and had bugs in their hair, that father witnessed children being
disheveled and wearing clothes that were too small, and that mother might be forced to
move was insufficient to show current circumstances significantly impaired children’s
health and well-being).
On this record, the evidence may have supported concerns about parenting
decisions or living arrangements. It did not, however, satisfy the demanding standard
imposed by section 156.006(b). In re Charles, 2017 Tex. App. LEXIS 11234, at *10.
Because the evidence does not establish that A.G.F.’s present circumstances would
significantly impair her physical health or emotional development, the trial court lacked
discretion to render a temporary order changing the person with the exclusive right to
designate the child’s primary residence. In re Walser, 648 S.W.3d at 448.
CONCLUSION
We conditionally grant Ward’s petition for writ of mandamus and direct the trial
court to vacate its temporary orders of May 11, 2026. See TEX. R. APP. P. 52.8(c). We
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are confident the trial court will comply. The writ will issue only if it fails to do so. Because
of our disposition, Ward’s motion for temporary relief is dismissed as moot.
Judy C. Parker
Chief Justice
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