Affirmed and Opinion Filed February 21, 2024
In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-22-01175-CV
IN THE INTEREST OF L.B., A CHILD
On Appeal from the 304th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 15-00714
MEMORANDUM OPINION
Before Justices Molberg, Pedersen, III, and Nowell
Opinion by Justice Molberg
Mother appeals from the trial court’s order denying her motion to modify
conservatorship. Mother, possessory conservator of her daughter L.B., sought to
replace L.B.’s paternal aunt (Aunt) as sole managing conservator of the child, and
following a hearing, the trial court denied the requested modification. In three
issues, Mother argues (1) the trial court erred in failing to appoint her sole managing
conservator; (2) the trial court failed to apply the fit parent presumption under Troxel
v. Granville; and (3) Aunt failed to meet her burden of proof to show Mother was an
unfit parent. We affirm in this memorandum opinion.
Background
On May 23, 2016, the trial court signed a final decree in a suit affecting the
parent–child relationship. Among other things, the court found that appointing
Mother as managing conservator of L.B. was not in the child’s best interest because
such appointment would significantly impair the physical health or emotional
development of the child. The court appointed the Department of Family and
Protective Services managing conservator, but upon Aunt’s completion of the
Fostering Connections Program, Aunt was to be made managing conservator.
Mother and Father were appointed possessory conservators of L.B. All periods of
access between Mother and L.B. were to be as arranged, agreed, and supervised at
the discretion of the managing conservator. On November 30, 2017, the trial court
appointed Aunt permanent managing conservator. Mother was continued as
possessory conservator.
On November 12, 2021, Mother filed a petition to modify the parent–child
relationship. She sought to become sole managing conservator and alleged the
circumstances of the child, conservator, or other affected party had materially and
substantially changed since the final decree. Mother filed a second petition two
months later requesting the court to award Mother standard visitation.
The trial court conducted a hearing on the petitions. Rhonda Rieken, the
attorney ad litem for L.B., informed the court that the child, who was nine years old
at the time of hearing, had lived with Aunt for the past seven years. Rieken said that
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Mother was still with the same partner, D.S., she had been with when the final decree
was entered. She said that, since the prior order, Mother and D.S. have had four
children and they were all in Mother’s care. They had a home and vehicles. Rieken
said that although Mother and D.S. were in a better financial position than they had
been previously, Mother continued to deny the reasons why the court previously
declined to make her managing conservator. In particular, Rieken said concerns
about domestic violence remained. She said “[D.S.’s] own family . . . and [Mother’s]
own family today still say that there’s domestic violence and that [L.B.] would not
be safe around [D.S.] because of his explosive temper, his history of touching little
girls, and his history of having sex with a fourteen-year-old child when he was a
grown man.” She said Mother had still not participated in domestic violence
counseling despite previously being ordered by the court to do so. Rieken was
concerned Mother could not be protective of L.B.
As to visitation, Rieken said Mother and Aunt had reached out to each other
and were “having regular visits.” She said L.B. wanted to continue with regular
visits to get to know Mother and her half-siblings better. Rieken said L.B. was
“terrified that mom will just dump her again” like Mother seemed to do when she
was angry following a hearing and refused to answer L.B.’s phone calls for an
extended period of time. Given this, Rieken thought a visitation schedule of a
specific time every other week would help L.B.’s confidence and her relationship
with Mother. Rieken believed the visits needed to be supervised by Aunt. Rieken
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said at one point an unsupervised weekend with Mother was allowed, and Mother
“went against the rules and took [L.B.] out of state, was not answering phone calls,
and . . . did not bring [L.B.] back at the agreed time.” Afterwards, further
unsupervised visits were disallowed.
Mother denied she did not answer L.B.’s phone calls but said L.B. did not
always answer her calls. She said Aunt blocked her from everything, including
Facebook. Mother said she did not think only visits should be considered, but that
“it’s in the best interest of my child to be here with me and her siblings.” Mother
presented no other testimony or evidence.
Aunt said she was not comfortable only having contact with Mother but
wanted a third party present at visits because Mother presented herself differently
when others were present.
The trial court stated that because Mother was still with D.S., the court could
not allow L.B. to be returned to her because it would not be in L.B.’s best interest.
However, the trial court announced she would order regular visitation and phone and
video contact. On December 20, 2022, the trial court signed an order denying the
motion to modify conservatorship in the suit affecting the parent–child relationship
but granting modification of the possession and access orders. The trial court found,
among other things, there had not been a material and substantial change in
circumstances of the child, conservator, or other party affected by the order since the
entry of the final decree, and that appointment of Mother as managing conservator
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would not be in the best interest of L.B. The order also modified the visitation
schedule to require supervised visitation every other Saturday for two hours and
phone or video contact with the child for set times on Monday, Wednesday, and
Friday evenings. This appeal followed.
Discussion
In three issues, Mother generally argues insufficient evidence supported the
trial court’s order and that she should have been made primary conservator of the
child; the trial court failed to apply the fit parent presumption under Troxel v.
Granville; and Aunt failed to meet her burden of proof to show Mother was an unfit
parent.
As a general rule, we give wide latitude to a trial court’s decision on custody,
control, possession, and visitation matters. In re C.P.J., 129 S.W.3d 573, 576 (Tex.
App.—Dallas 2003, pet. denied). We will not disturb a trial court’s decision on a
motion to modify conservatorship unless the complaining party shows a clear abuse
of discretion, meaning the trial court acted in an arbitrary and unreasonable manner
or without reference to guiding rules or principles. See In re C.F.M., No. 05-17-
00141-CV, 2018 WL 2276351, at *3 (Tex. App.—Dallas May 18, 2018, no pet.)
(mem. op.). As relevant here, a trial court may modify a conservatorship order only
if the circumstances of the child, a conservator, or other party affected by the order
have materially and substantially changed since the order was rendered and the
modification would be in the child’s best interest. TEX. FAM. CODE § 156.101(a)(1).
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The party seeking modification bears the burden of establishing a material and
substantial change in circumstances. In re C.H.C., 392 S.W.3d 347, 349 (Tex.
App.—Dallas 2013, no pet.). Changed circumstances may be established by
circumstantial evidence, and the law does not prescribe any particular method for
showing them. See In re C.F.M., 2018 WL 2276351, at *2. To prove the necessary
change occurred, the party seeking modification must demonstrate what conditions
existed at the time of the entry of the prior order and what material conditions have
changed in the intervening period. In re S.N.Z., 421 S.W.3d 899, 909 (Tex. App.—
Dallas 2014, pet. denied).
The trial court is in the best position to observe the demeanor and personalities
of the parties and witnesses and to evaluate credibility, influences, and other forces
that are not discernible from the record. In re D.C., No. 05-12-01574-CV, 2014 WL
1887611, at *3 (Tex. App.—Dallas May 9, 2014, no pet.) (mem. op.). We view the
evidence in the light most favorable to the trial court’s decision, and every legal
presumption is indulged in favor of its judgment. Id. In family law cases,
insufficiency of the evidence is not an independent ground for asserting error but is
a relevant factor in determining if the trial court abused its discretion. Id. To
determine whether the trial court abused its discretion we consider whether the trial
court (1) had sufficient evidence upon which to exercise its discretion and (2) erred
in its exercise of that discretion. In re S.I.J., No. 05-21-00918-CV, 2023 WL
6350473, at *7 (Tex. App.—Dallas Sept. 29, 2023, no pet.) (mem. op.). When an
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order affects the conservatorship and possession of a child, the child’s best interests
are the primary consideration. Id.
Based on the record before us, we conclude the trial court did not abuse its
discretion in denying Mother’s requested modification to the conservatorship
because Mother failed to present evidence establishing a material and substantial
change in the circumstances of the child, a conservator, or other party affected by
the order since the order was rendered or that such modification was in L.B.’s best
interest. Mother presented no evidence demonstrating such a material and
substantial change. For instance, Mother failed to present evidence showing what
conditions existed at the time of the entry of the prior order. See In re S.N.Z., 421
S.W.3d at 909. What evidence was presented through the ad litem showed that the
original circumstances involving concerns about Mother’s partner and domestic
violence had not changed. Mother directs us to no evidence in the record in support
of her contention that the circumstances have materially and substantially changed
since the prior order was rendered. Furthermore, Mother does not point to any
evidence in the record demonstrating the conservatorship modification was in the
best interest of L.B. Accordingly, we conclude the trial court did not abuse its
discretion in denying Mother’s requested modification.
In reaching this conclusion, we necessarily reject Mother’s contentions that
Aunt had the burden of proof or that the trial court incorrectly failed to apply the fit
parent presumption. The Legislature has adopted a presumption requiring a child’s
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parents be appointed managing conservators in initial child custody suits unless it
would significantly impair the child’s physical health or emotional development.
See TEX. FAM. CODE § 153.131(a). This statutory presumption, however, “is not
carried forward into the statute governing proceedings to modify those
determinations.” In re C.J.C., 603 S.W.3d 804, 807 (Tex. 2020) (citing TEX. FAM.
CODE § 156.101(a)(1)); see also In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000)
(“Chapter 156 does not provide for a parental presumption in modification suits.”).
In Troxel v. Granville, the Supreme Court of the United States applied a
constitutional presumption that fit parents act in the best interest of their children in
finding unconstitutional a trial court’s order requiring a fit parent to permit visitation
with the children’s grandparents. 530 U.S. 57, 68 (2000). While the Supreme Court
of Texas has concluded this constitutional presumption applies when modifying an
existing order naming a parent as the child’s managing conservator, see In re C.J.C.,
603 S.W.3d at 808, the court specified this holding “does not alter the burden of
proof for modifications of court-ordered custody arrangements in which neither
parent is named a managing conservator in the original order,” see id. at 819.
Thus, Mother, who along with Father was not named managing conservator
in the order she sought to modify, had the burden to demonstrate that the
circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed since the order was rendered and the
modification would be in the child’s best interest. See TEX. FAM. CODE
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§ 156.101(a)(1); In re C.H.C., 392 S.W.3d at 349; see also In re R.A., No. 09-20-
00275-CV, 2022 WL 7180524, at *7 (Tex. App.—Beaumont Oct. 13, 2022, no pet.)
(mem. op.). As explained above, Mother did not meet that burden. 1 We overrule
Mother’s three issues.
Conclusion
We affirm the trial court’s order.
/Ken Molberg/
221175f.p05 KEN MOLBERG
JUSTICE
1
Mother complains in her reply brief of reporter’s record inaccuracies and recites facts not before us.
These complaints are not properly before us because “an issue raised for the first time in a reply brief is
ordinarily waived and may not be considered by this Court.” See Stovall & Assocs., P.C. v. Hibbs Fin. Ctr.,
Ltd., 409 S.W.3d 790, 803 (Tex. App.—Dallas 2013, no pet.); see also Moreno v. Silva, 316 S.W.3d 815,
817 (Tex. App.—Dallas 2010, pet. denied) (“Although we construe pro se pleadings and briefs liberally,
we hold pro se litigants to the same standards as licensed attorneys and require them to comply with
applicable laws and rules of procedure.”).
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Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF L.B., A On Appeal from the 304th Judicial
CHILD District Court, Dallas County, Texas
Trial Court Cause No. 15-00714.
No. 05-22-01175-CV Opinion delivered by Justice
Molberg. Justices Pedersen, III and
Nowell participating.
In accordance with this Court’s opinion of this date, the order of the trial
court is AFFIRMED.
It is ORDERED that each party bear its own costs of this appeal.
Judgment entered this 21st day of February, 2024.
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In the Interest of L.B., a Child v. the State of Texas
Combined Opinion