in the Interest of H.P.J., a Child ( 2019 )

Affirmed and Memorandum Opinion filed March 12, 2019.
In The
Fourteenth Court of Appeals
NO. 14-17-00715-CV
IN THE INTEREST OF H.P.J., A CHILD
On Appeal from the 246th District Court
Harris County, Texas
Trial Court Cause No. 2013-27477
MEMORANDUM OPINION
Gregory Thomas Josefsberg (“Father”) appeals the denial of his petition to
modify the terms of the trial court’s July 13, 2015 conservatorship order for his
child. Father asserts the trial court abused its discretion by (1) concluding there
was no material or substantial change in the parties’ circumstances; (2) permitting
Mother to serve as joint managing conservator of the child; and (3) failing to
render a possession order in Father’s favor. For the reasons below, we affirm.
BACKGROUND
Father and Mother are the parents of H.P.J., a four-year old child. After
ending their relationship, Father and Mother entered into an agreed final order in a
suit affecting the parent-child relationship in May 2014. The trial court signed the
order in which Father and Mother agreed to serve as H.P.J.’s joint managing
conservators, with Mother retaining the right to designate H.P.J.’s primary
residence. The trial court signed an order on July 13, 2015, modifying the terms of
the conservatorship.
Father filed an “Emergency Petition to Modify Parent-Child Relationship” in
June 2016, seeking to modify the trial court’s July 2015 conservatorship order.1
Father filed a first and second amended petition. Father’s second amended petition
requested the trial court modify the terms of H.P.J.’s conservatorship and
(1) appoint Father as H.P.J.’s sole managing conservator with the sole right to
designate H.P.J.’s primary residence; or (2) alternatively, appoint Father as H.P.J.’s
joint managing conservator with the sole right to designate H.P.J.’s primary
residence and with all of the exclusive rights of a managing conservator; or
(3) alternatively, appoint Father as H.P.J.’s joint managing conservator with the
sole right to designate H.P.J.’s primary residence and grant Father expanded
possession. Father also requested the trial court deny Mother access to H.P.J. or, in
the alternative, order that Mother’s access to H.P.J. be continuously supervised.
Father’s second amended petition asserted that the requested modifications were in
H.P.J.’s best interest.
Mother filed in response a “Counterpetition to Modify Parent-Child
Relationship.” Mother’s counterpetition requested the trial court modify the terms
of H.P.J.’s conservatorship and order the parties to (1) exchange H.P.J. at a
“neutral, public setting;” and (2) “communicate only through a co[-]parenting
website.” Mother’s counterpetition asserted that the “circumstances of the child, a
1
Father, an attorney, was represented by counsel in the underlying trial court proceeding.
Father represents himself on appeal.
2
conservator, or other party affected by the order to be modified have materially and
substantially changed.” Mother filed a notice of nonsuit, which the trial court
granted in an order signed April 26, 2017.
The parties proceeded to a three-day bench trial in May 2017. The
following witnesses testified: (1) Father; (2) Mother; (3) Carolyn Rawlins, the
director at H.P.J.’s preschool; and (4) Adrian Smith and Shirley Delacruz, two of
Father’s neighbors at his Houston condominium complex.
Father’s and Mother’s testimony was contentious and conflicting. Father
and Mother testified regarding (1) their relationship with each other; (2) their
relationships with H.P.J.; (3) their financial situations, living arrangements, and
personal lives; and (4) H.P.J.’s living and school arrangements. Rawlins testified
regarding an incident when H.P.J. was dropped off at preschool with “cut marks
across his stomach.” Smith and Delacruz testified regarding incidents at Father’s
condominium complex.
The trial court signed a final judgment on June 9, 2017, denying the relief
requested in Father’s second amended petition. The trial court’s final judgment
states:
After considering the pleadings, the parties’ testimony, the evidence
presented, and the argument of counsel, the Court FINDS that no
material and/or substantial change has occurred since the rendition of
the Order in Suit to Modify Parent-Child Relationship which was
signed by the Court on July 13, 2015.
Father filed a request for findings of fact and conclusions of law and a notice of
past due findings of fact and conclusions of law. The trial court filed findings of
fact and conclusions of law in January 2018. Father timely appealed.
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STANDARDS OF REVIEW
We review the trial court’s denial of Father’s petition to modify for an abuse
of discretion. See Flowers v. Flowers, 407 S.W.3d 452, 456 (Tex. App.—Houston
[14th Dist.] 2013, no pet.); see also In re K.S., 492 S.W.3d 419, 426 (Tex. App.—
Houston [14th Dist.] 2016, pet. denied) (“Trial courts have wide discretion with
respect to custody, control, possession, support, and visitation matters.”).
The trial court abuses its discretion when it acts arbitrarily, unreasonably, or
without reference to any guiding rules or principles. In re R.T.K., 324 S.W.3d 896,
899 (Tex. App.—Houston [14th Dist.] 2010, pet. denied). The trial court does not
abuse its discretion if there is some evidence of a substantive and probative
character to support its decision. In re C.A.M.M., 243 S.W.3d 211, 214 (Tex.
App.—Houston [14th Dist.] 2007, pet. denied). “But the fact that a trial court may
decide a matter within its discretionary authority in a different manner from an
appellate court in a similar circumstance does not demonstrate an abuse of
discretion.” Id. at 214-15.
Under an abuse-of-discretion standard, legal and factual sufficiency are not
independent grounds of error but instead are relevant factors assessed to determine
if the trial court abused its discretion. In re R.T.K., 324 S.W.3d at 899-900. When
examining legal sufficiency, we review the entire record, considering evidence
favorable to the finding if a reasonable factfinder could and disregarding contrary
evidence unless a reasonable factfinder could not. In re J.R.P., 526 S.W.3d 770,
777 (Tex. App.—Houston [14th Dist.] 2017, no pet.). We indulge every
reasonable inference that would support the challenged finding. Id. Evidence is
legally sufficient “if it would enable reasonable and fair-minded people to reach
the decision under review.” Id.
For a factual sufficiency review, we examine the entire record and consider
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evidence favorable and contrary to the challenged finding. In re P.A.C., 498
S.W.3d 210, 214 (Tex. App.—Houston [14th Dist.] 2016, pet. denied). “We may
set aside the verdict only if it is so contrary to the overwhelming weight of the
evidence as to be clearly wrong and unjust.” In re J.R.P., 526 S.W.3d at 777. “It
is not within the province of the court to interfere with the factfinder’s resolution
of conflicts in the evidence or to pass on the weight or credibility of the witness’s
testimony.” In re C.E.M.-K., 341 S.W.3d 68, 81 (Tex. App.—San Antonio 2011,
pet. denied).
In a bench trial, the trial court is in the best position to observe and assess
the witnesses’ demeanor and credibility, and “to sense the ‘forces, powers, and
influences’ that may not be apparent from merely reading the record on appeal.”
In re A.L.E., 279 S.W.3d 424, 427 (Tex. App.—Houston [14th Dist.] 2009, no pet.)
(quoting Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no
pet.)). “As a result, an appellate court defers to a trial court’s resolution of
underlying facts and to credibility determinations that may have affected its
determination, and will not substitute its judgment for that of the trial court.” In re
J.R.P., 526 S.W.3d at 778.
ANALYSIS
Father presents nine issues on appeal challenging the denial of his petition to
modify the trial court’s July 2015 conservatorship order. Father contends in his
first seven issues that the trial court abused its discretion when it found that there
was not a material or substantial change in circumstances since the rendition of the
July 2015 conservatorship order. In his eighth issue, Father asserts the trial court
abused its discretion by permitting Mother to continue as H.P.J.’s joint managing
conservator. Father argues in his ninth issue that the trial court erred in failing to
render a possession order in Father’s favor.
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I. No Material and Substantial Change in Circumstances
Father’s first six issues challenge the trial court’s changed-circumstances
determination. In his first issue, Father argues that in her counterpetition Mother
judicially admitted that a material and substantial change in circumstances
occurred. Father’s second through sixth issues focus on specific factual
circumstances that Father contends constitute material and substantial changes:
 Mother’s marriage;
 changes in Father’s and Mother’s living arrangements;
 Mother’s alleged mistreatment of H.P.J.;
 Mother’s previous boyfriend’s threats against H.P.J.;
 Mother’s alleged denial of Father’s possession; and
 alleged family violence that rendered Mother an improper person to
exercise custody.
In an effort to ensure stability and continuity for children’s living arrangements,
Texas law delineates the showing necessary to modify a trial court’s
conservatorship order. See In re A.L.H., 515 S.W.3d 60, 79 (Tex. App.—Houston
[14th Dist.] 2017, pet. denied). The terms of a conservatorship may be modified
only if (1) modification is in the child’s best interest, and (2) “the circumstances of
the child, a conservator, or other party affected by the order have materially and
substantially changed” since the date of rendition of the conservatorship order.
Tex. Fam. Code Ann. § 156.101(a) (Vernon 2014).
The existence of a material and substantial change in circumstances is a
threshold determination. In re A.L.E., 279 S.W.3d at 428. In making this
determination, the trial court “is not confined to rigid or definite guidelines;”
rather, the trial court’s determination is fact-specific and must be made according
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to the circumstances as they arise. Id. Material changes may include (1) the
marriage of one of the parties; (2) changes in the home surroundings;
(3) mistreatment of the child; or (4) a party becoming an improper person to
exercise custody. Arredondo v. Betancourt, 383 S.W.3d 730, 734-35 (Tex. App.—
Houston [14th Dist.] 2012, no pet.). The person seeking the modification has the
burden of establishing a material and substantial change. London v. London, 94
S.W.3d 139, 145 (Tex. App.—Houston [14th Dist.] 2002, no pet.).
“[N]ot every change in conditions justifies a change of custody, but only
those changes which reasonably could be said to injuriously affect the child’s best
interests.” Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981,
no writ). Change alone does not justify modification unless changed needs also are
shown. See Zeifman v. Michels, 212 S.W.3d 582, 593 (Tex. App.—Austin 2006,
pet. denied). The policy behind the material-and-substantial-change requirement is
to prevent constant relitigation with respect to children and create stability in the
conservatorship. In re M.N.G., 113 S.W.3d 27, 33 (Tex. App.—Fort Worth 2003,
no pet.); Burkhart v. Burkhart, 960 S.W.2d 321, 323 (Tex. App.—Houston [1st
Dist.] 1997, pet. denied).
To show that a material and substantial change in circumstances has
occurred, the movant must show conditions as they existed at the time the prior
conservatorship order was signed. In re A.L.E., 279 S.W.3d at 428 (citing Zeifman,
212 S.W.3d at 589). Once these circumstances have been shown, the movant must
show what material and substantial changes have occurred in the intervening
period. Id. A material and substantial change in circumstances may be shown by
direct or circumstantial evidence. Arredondo, 383 S.W.3d at 735.
A. Mother’s Alleged Judicial Admission in Pleadings
In her counterpetition, Mother requested the trial court modify its July 2015
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conservatorship order and require the parties to (1) exchange H.P.J. at a “neutral,
public setting,” and (2) communicate only through a co-parenting website. To
support these requested changes, Mother asserted that “[t]he circumstances of the
child, a conservator, or other party affected by the order to be modified have
materially and substantially changed . . . .” Father asserts that this statement
constitutes a judicial admission that contradicts the trial court’s finding that no
material or substantial change in circumstances had occurred.
“A judicial admission is a formal waiver of proof that dispenses with the
production of evidence on an issue and bars the admitting party from disputing it.”
In re Guerrero, 465 S.W.3d 693, 705 (Tex. App.—Houston [14th Dist.] 2015, pet.
denied). As long as a judicial admission is unretracted, it must be taken as true by
the factfinder and is binding on the declarant. Id.
Statements of fact made in a party’s pleadings may constitute judicial
admissions. See, e.g., In re P.A.C., 498 S.W.3d at 219 n.6. But to operate as a
formal waiver of proof, a judicial admission must be made in a party’s live
pleading — a judicial admission cannot be based on statements contained in
pleadings that have been abandoned. See Kilburn v. Fort Bend Cty. Drainage
Dist., 411 S.W.3d 33, 39 n.2 (Tex. App.—Houston [14th Dist.] 2013, no pet.)
(“statements in a superseded pleading cannot be considered judicial admissions”
(internal quotation omitted)); Atlas Gulf-Coast, Inc. v. Stanford, 329 S.W.3d 920,
923 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (“judicial admissions cannot
be based on an abandoned pleading”). Accordingly, petitions that have been
amended, superseded, or dismissed are no longer live and cannot supply a basis for
judicial admissions.2 See Kilburn, 411 S.W.3d at 39 n.2; Atlas Gulf-Coast, Inc.,
2
Statements in abandoned pleadings may be accorded evidentiary value but are not
conclusive. See Louviere v. Hearst Corp., 269 S.W.3d 750, 755 (Tex. App.—Beaumont 2008,
no pet.); Martinez v. Midland Credit Mgmt., Inc., 250 S.W.3d 481, 485-86 (Tex. App.—El Paso
8
329 S.W.3d at 923; see also Drake Ins. Co. v. King, 606 S.W.2d 812, 817 (Tex.
1980) (superseded on other grounds by Bay Area Healthcare Group, Ltd. v.
McShane, 239 S.W.3d 231 (Tex. 2007)) (statement in original petition was not a
judicial admission where petition was superseded by an amended petition).
Here, Father attempts to rely on a statement in Mother’s “Counterpetition to
Modify Parent-Child Relationship.” Mother subsequently filed a notice of nonsuit
with respect to the claims in her counterpetition, which the trial court granted in an
order signed April 26, 2017.
After the trial court granted Mother’s notice of nonsuit, Mother’s
counterpetition was no longer a live pleading and could not supply a basis for
judicial admissions. See Drake Ins. Co., 606 S.W.2d at 817; Kilburn, 411 S.W.3d
at 39 n.2; Atlas Gulf-Coast, Inc., 329 S.W.3d at 923. Therefore, because Mother’s
counterpetition was not a live pleading, statements within it could not constitute
judicial admissions. See Kilburn, 411 S.W.3d at 39 n.2; Atlas Gulf Coast, Inc., 329
S.W.3d at 923. The changed-circumstances statement in Mother’s counterpetition
did not waive Father’s burden of proof on this issue. See Kilburn, 411 S.W.3d at
39 n.2; Atlas Gulf Coast, Inc., 329 S.W.3d at 923.
We overrule Father’s first issue.
B. Mother’s Marriage
Father asserts that Mother’s marriage constitutes a material and substantial
change in circumstances and that the trial court abused its discretion when it found
otherwise. Father supports his argument with reference to the following portion of
2008, no pet.). These statements must be introduced into evidence before they can be considered
by the factfinder. Kilburn, 411 S.W.3d at 39 n.2 (quoting Huff v. Harrell, 941 S.W.2d 230, 239
(Tex. App.—Corpus Christi 1996, writ denied)).
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his testimony:
Q. Is it also true that at the time the last order was signed, [Mother]
was not married?
A. That is correct.
Q. And at this time [Mother] is married; is that correct?
A. Yes, that is correct.
Father does not point to any testimony or other evidence showing how Mother’s
marriage affects H.P.J.’s circumstances or the parties’ ability to comply with the
terms of the July 2015 conservatorship order.
Father does not cite any cases holding that a conservator’s marriage,
standing alone, necessarily gives rise to a material and substantial change in
circumstances. The cases Father cites state only that marriage may constitute a
change in circumstances. See Arredondo, 383 S.W.3d at 734-35 (marriage “may”
be a material and substantial change); In re A.L.E., 279 S.W.3d at 429 (marriage
“can” be a material and substantial change). These cases do not support the
conclusion that Mother’s marriage alone constitutes a material and substantial
change. See Arredondo, 383 S.W.3d at 734-35; In re A.L.E., 279 S.W.3d at 429.
Reviewing the record as a whole, Mother’s marriage does not render the trial
court’s changed-circumstances finding an abuse of discretion. The record does not
contain any evidence that Mother’s marriage injuriously affected H.P.J. When
asked at trial whether “there’s been any impact on [H.P.J.] since the date of
[Mother’s] marriage,” Father did not identify any changes.
Mother testified that H.P.J. has been positively affected by the marriage.
When asked how H.P.J. “gets along with [Mother’s] husband,” Mother testified
that H.P.J. “runs in the door, and he hugs [Mother’s husband] by the leg.” Mother
stated that her husband “understands the appropriate relationship he has with
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[H.P.J.] as his stepfather.” Mother testified that she did not have any concerns
about her husband’s relationship with H.P.J. Mother testified that she and her
husband earn approximately $200,000-300,000 a year and can “comfortably
provide” for their family.
Considering the record in its entirety, the challenged finding is supported by
legally and factually sufficient evidence. See In re R.T.K., 324 S.W.3d at 899-900.
The record not contain any evidence showing injurious changes brought about by
Mother’s marriage and the record contains testimony identifying benefits the
marriage has conferred on H.P.J. See Zeifman, 212 S.W.3d at 593; Jeffers, 615
S.W.2d at 253. Because the trial court’s finding is supported by evidence of a
substantive and probative character, Mother’s marriage does not render the trial
court’s changed-circumstances finding an abuse of discretion. See In re J.R.P.,
526 S.W.3d at 777.
We overrule Father’s second issue.
C. Changes in Father’s and Mother’s Living Arrangements
Asserting that the trial court’s changed-circumstances finding constitutes an
abuse of discretion, Father points out that (1) he and Mother were living together
when the July 2015 conservatorship order was signed but no longer lived together
at the time of trial; and (2) Mother was living with her husband at the time of trial.
Father does not state how these changes affect H.P.J.’s circumstances or the
parties’ ability to comply with the terms of the conservatorship order. Father does
not cite any cases to support his contention that adjustments to a parent’s living
arrangements, standing alone, constitute a material and substantial change.
“Some moves, depending on distance and other factors, may not materially
alter or interfere with the relationship of the conservators with the child.” In re
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P.M.G., 405 S.W.3d 406, 412 (Tex. App.—Texarkana 2013, no pet.). Determining
whether a move causes a material and substantial change requires examining the
facts of the case. Id. Factors to be considered include the distance involved, the
quality of the relationship between the noncustodial parent and the child, whether
the relocation would deprive the noncustodial parent of regular and meaningful
access to the child, and the feasibility of preserving the relationship between the
noncustodial parent and the child through suitable visitation arrangements. See id.
The changes Father identifies do not render the trial court’s changed-
circumstances determination an abuse of discretion. See In re R.T.K., 324 S.W.3d
at 899. The record does not indicate that Mother’s move injuriously affected
H.P.J.’s circumstances or otherwise damaged Father’s relationship with H.P.J. See
In re P.M.G., 405 S.W.3d at 412; Jeffers, 615 S.W.2d at 253.
Father testified that Mother lived in Meyerland when the July 2015
conservatorship order was signed and that Mother “currently live[d]” in Meyerland
at the time of trial. Mother testified that she moved from a condominium to a
house after the July 2015 order was signed, stating that her condominium had
flooded twice since she had lived there. Mother stated her new house was
“basically, on the same street” as her condominium. Mother testified that she “did
research before moving” and was “looking for a good school.” Mother stated that
she lives close to a magnet school that her older son attends; Mother plans for
H.P.J. to attend the magnet school when he is older.
Mother testified that H.P.J. attended preschool at the Growing Tree
Academy when the July 2015 conservatorship order was signed. At the time of
trial, H.P.J. attended the Holloway Preschool. Discussing this change, Mother
stated that “the quality of care had gone down” at the Growing Tree and the
preschool “kept increasing the prices.” Mother said she discussed with Father
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changing H.P.J.’s preschool; Mother testified that Father “called and he spoke to
[the director at the Holloway Preschool] and set up a time for the both of us to go
tour the facility.” Mother testified that both she and Father decided to move H.P.J.
to the Holloway Preschool.
The Growing Tree and the Holloway Preschool both are located in
southwest Houston. Father’s and Mother’s testimony suggests that both parties
pick up and drop off H.P.J. at preschool. Father also testified that both he and
Mother attend H.P.J.’s soccer practice and games. This evidence, considered
altogether, does not suggest that the changes to Father’s and Mother’s living
arrangements had an injurious effect on H.P.J. See In re P.M.G., 405 S.W.3d at
412; Jeffers, 615 S.W.2d at 253.
Describing H.P.J.’s current living situation, Mother testified that H.P.J. lives
with Mother, her husband, and H.P.J.’s two siblings. H.P.J. shares a bedroom with
his older brother, each boy having a separate bed; Mother testified that the brothers
“get along” and that H.P.J. “loves his brother.” Mother also testified that her
husband is a “great father” and that he “understands the appropriate relationship he
has with [H.P.J.] as his stepfather.”
Although the parties’ living arrangements have changed, the record as a
whole does not indicate that the trial court’s changed-circumstances determination
is an abuse of discretion. The record does not contain evidence showing that these
adjustments changed H.P.J.’s needs or otherwise adversely affected his
circumstances or his relationships with Father and Mother. See Zeifman, 212
S.W.3d at 593; Jeffers, 615 S.W.2d at 253.
We overrule Father’s third issue.
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D. Mother’s Alleged Mistreatment of H.P.J.
Father alleges that the following “instances of negligent supervision or child
abuse of [H.P.J.] committed by [Mother]” occurred after the trial court signed the
July 2015 conservatorship order:
 April 2016: Mother “held [H.P.J.] down on the bathroom floor and
forcefully brushed [H.P.J.’s] teeth.”
 June 2016: Mother “carried [H.P.J.] by the wrist through the house
while [H.P.J.] was screaming and threw [H.P.J.] against a wall.”
 December 2016: H.P.J. “received 7 stitches in his head while in
[Mother’s] care.” A photograph of H.P.J. showing stitches on his
forehead was admitted into evidence. Father testified that Mother
“didn’t seem like she knew exactly how [the incident] happened,” but
“said that [H.P.J.] was horse[-]playing with his eight-year-old brother
when it happened.”
 January 2017: H.P.J. “suffered cut[s] or burns on his torso.” Several
photographs of H.P.J. showing red marks on his torso were admitted
into evidence. Father testified that Mother gave “six different stories”
for the cause of the injuries. Father stated that Mother did not notify
the preschool of the injuries before dropping H.P.J. off and that
Mother “refused to respond” to inquiries from H.P.J.’s preschool
regarding the injuries.
Father argues that these incidents constitute a material and substantial change in
circumstances. We analyze these incidents below.
Mother denied the April 2016 and June 2016 incidents and testified that she
“never intentionally injured or put [H.P.J.] in danger.” Mother denied “pick[ing]
up [H.P.J.] by his wrist and carr[ying] him around the house.”
With respect to the December 2016 incident involving stitches, Mother
stated that H.P.J. sustained the injury after falling while engaging in horseplay with
his older brother. Mother testified that she took H.P.J. “straight to the urgent care”
after the incident occurred.
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Addressing the injuries on H.P.J.’s torso, Mother testified that H.P.J. had
scratched himself with a razor he found in the bathtub while bathing. Mother
stated that the injury occurred when she stepped out of the bathroom to “grab [her]
other son to take a bath.” Mother testified that H.P.J. climbed up the soap dish and
retrieved the razor from the window sill. Mother stated that the razor was left on
the window sill by her daughter.
Mother testified that she did not immediately recognize the injuries as those
caused by a razorblade because “[t]hey were just really light, and there was a little
bit of blood.” Mother testified that the injuries darkened overnight and that she put
Neosporin on H.P.J.’s torso before dropping him off at preschool the next morning.
Mother stated that she missed a call from H.P.J.’s preschool later that day when
she was picking up her daughter from an out-of-town school. Mother testified that
she saw the missed call the next day and spoke to Rawlins, the preschool director,
regarding the injuries.
According to Mother’s testimony, after the incident the trial court
“appointed [an amicus attorney] with the direction that [the attorney] was to . . .
immediately get to the bottom of the razor incident or the scratches on [H.P.J.].”
The amicus attorney met with Mother; met alone with H.P.J.; and walked through
Mother’s house. No restrictions were placed on Mother after the investigation.
Rawlins also testified with respect to the injuries on H.P.J.’s torso, stating
that the injuries looked like “cut marks or burn marks” and “bec[a]me redder and
more irritated-looking throughout the day.” Rawlins recalled that Mother
originally stated the injuries “could have been an allergic reaction to the
detergent.” Mother later told Rawlins that the injuries were caused by a razor
H.P.J. grabbed while bathing.
Rawlins testified that the injuries did not “r[i]se to the level of having to call
15
the State for abuse or neglect.” Rawlins also stated that she had not “gotten the
sense from any of [her] interactions with [Mother] and [H.P.J.] that [H.P.J.] is
somehow getting abused or neglected by his mother[.]”
Reviewing the record as a whole, Father’s allegations of child abuse and the
evidence regarding these incidents do not render the trial court’s changed-
circumstances determination an abuse of discretion.
Child abuse may constitute a material and substantial change in
circumstances. See Arredondo, 383 S.W.3d at 734-75. But, as evident from the
recitation above, Father’s and Mother’s testimony addressing the alleged incidents
was in conflict. Father asserted four incidents of child abuse. Mother denied
intentionally injuring H.P.J. and provided explanations for the injuries to H.P.J.’s
forehead and torso. An amicus attorney investigated after the razor incident and
the court did not place any restrictions on Mother with respect to H.P.J. Rawlins
testified that she had not gotten the impression H.P.J. was abused or neglected by
Mother.
The trial court, as the factfinder, was best positioned to resolve these
underlying facts and credibility determinations and to observe and assess the
witnesses’ demeanor and credibility. See In re J.R.P., 526 S.W.3d at 778; In re
A.L.E., 279 S.W.3d at 427; see also Burns v. Burns, 116 S.W.3d 916, 920 (Tex.
App.—Dallas 2003, no pet.) (“Where, as here, the parties testified to different
versions of the same encounter, we recognize that the trial court is the sole judge of
the weight and credibility of the evidence.”). We defer to the trial court’s
resolution of conflicting evidence and conclude that Father’s child-abuse
allegations do not render the trial court’s changed-circumstances determination an
abuse of discretion.
We overrule Father’s fourth issue.
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E. Mother’s Previous Boyfriend’s Threats Against H.P.J.
At trial, Father played a recording of a June 2016 conversation between
Father and Joshua Ferris, Mother’s previous boyfriend. During the conversation,
Ferris told Father, “Your baby can get killed too.” Father asserts that the trial court
abused its discretion when it concluded that this threat did not constitute a material
and substantial change in circumstances.
Mother testified that she did not see Ferris after he made the threat during
his conversation with Father in June 2016. Mother testified that dating Ferris “was
a huge mistake” and stated that she ended her romantic relationship with Ferris
after learning about his criminal history. Father acknowledged that Mother was no
longer in a relationship with Ferris at the time of trial.
To prove that a material change in circumstances has occurred, the movant
must demonstrate what conditions existed at the time of the entry of the prior order
as compared to the circumstances existing at the time of trial. In re A.L.E., 279
S.W.3d at 428; Zeifman, 212 S.W.3d at 589. According to Mother’s testimony,
she ended her relationship with Ferris by the time the parties proceeded to trial in
May 2017. Father acknowledged that Mother was no longer dating Ferris as of the
time of trial. Accordingly, because Mother’s relationship with Ferris was not a
condition existing as of the time of trial, it was not a condition that would give rise
to a material and substantial change in circumstances. See In re A.L.E., 279
S.W.3d at 428; Zeifman, 212 S.W.3d at 589.
We overrule Father’s fifth issue.
F. Mother’s Alleged Denial of Father’s Periods of Possession
Father asserts that Mother denied him “multiple periods of possession,
including Father’s Day weekend.” Father asserts that the trial court abused its
17
discretion when it concluded that these denials of possession did not constitute a
material and substantial change in circumstances.
Mother challenged these accusations and testified that she did not deny
Father his periods of possession with H.P.J.3 Mother testified that Father would
“ke[ep] [H.P.J.] from [her] for periods of time where [she] couldn’t check up on
him” and that “there were periods of time where [Father] would disappear and he
wasn’t involved” in H.P.J.’s life.
Like the allegations of child abuse discussed above, Father’s and Mother’s
testimony conflicts with respect to whether Mother denied Father court-ordered
possession. We defer to the trial court’s resolution of this conflicting evidence as
well as any attendant credibility determinations; we decline to substitute our
judgment for that of the trial court. See In re J.R.P., 526 S.W.3d at 778. The trial
court was in the best position to form conclusions with respect to Father’s
allegations. See In re A.L.E., 279 S.W.3d at 427. Based on the record as a whole
and the conflicting testimony addressing this allegation, the trial court’s conclusion
that there was not a material and substantial change in circumstances was not an
abuse of discretion. See In re C.A.M.M., 243 S.W.3d at 214.
We overrule Father’s sixth issue.
G. Father’s Allegations of Family Violence
In his seventh issue, Father asserts that “[f]amily violence was perpetrated
by [Mother] against [Father] and [this] violence conforms to a history of abuse.”
3
In her appellate brief, Mother’s discussion of this issue also references the trial court’s
August 2017 proceeding on Father’s “Second Amended Motion for Enforcement of Possession
Or Access and Motion for Enforcement of a Protective Order.” Because this proceeding
occurred after the trial on Father’s petition to modify the July 2015 conservatorship order and the
trial court’s June 9, 2017 final judgment, we do not consider the enforcement proceeding in our
analysis of this issue. See In re J.R.P., 526 S.W.3d at 777 (appellate court’s review of
modification order analyzed only evidence presented at bench trial).
18
Father’s argument rests on the following allegations:
 June 2014: Mother “arriv[ed] at [Father’s] residence; follow[ed] him
around the complex and ultimately assault[ed] him while holding
[H.P.J.] in her arms.” A photograph of Father showing a red mark on
his stomach was admitted into evidence. Father’s neighbor, Smith,
testified that Mother “r[an] after [Father] and slam[med] him in the
gate.”
 December 2014: Mother “br[oke] into [Father’s] residence, trash[ed]
his home office, [held] him down on his bed, and while screaming in
his face, wrote the word ‘LOSER’ on his chest in permanent magic
marker.” Admitted into evidence was a photograph of Father’s torso
showing the word “LOSER” written on his chest.
 June 2016: Mother “physically attacked [Father] from behind causing
multiple injuries.” Multiple photographs of Father showing scratches
on his neck, back, and arms were admitted into evidence.
Father asserts that these incidents violated his 2013 protective order against Mother
and render the trial court’s changed-circumstances finding an abuse of discretion.4
We first address the June 2014 and December 2014 incidents. To prove that
a material change in circumstances occurred, the movant must demonstrate what
conditions existed at the time of the entry of the prior order as compared to the
circumstances existing at the time of trial. In re A.L.E., 279 S.W.3d at 428;
Zeifman, 212 S.W.3d at 589. The first two incidents, which allegedly violated
Father’s 2013 protective order, occurred before the July 2015 conservatorship
order was signed. These incidents therefore were not material to the trial court’s
changed-circumstances finding. See In re A.L.E., 279 S.W.3d at 428; Zeifman, 212
4
In December 2013, the trial court signed two protective orders: one requested by Father
seeking protection from Mother and one requested by Mother seeking protection from Father.
Read together, in the protective orders the trial court finds that Father and Mother committed
family violence against each other; and in the orders the court places restrictions on Father’s and
Mother’s interactions with each other. Both protective orders expired in December 2015.
19
S.W.3d at 589.
With respect to the June 2016 incident, Mother testified that the injuries
Father complained of were the result of an altercation where both parties sustained
injuries. Mother described the altercation as follows:
[Father] was on top of me, we were right at the — I don’t know for
sure if that’s when — it was a long altercation that went through the
house over the phone and it probably lasted a good ten minutes and so
we both have injuries from it.
The trial court was free to disbelieve Father’s testimony indicating that Mother was
the sole aggressor in the 2016 incident and believe Mother’s testimony that the
incident was a mutual altercation. See In re J.R.P., 526 S.W.3d at 778; see also,
e.g., Hinojosa v. Hinojosa, No. 14-11-00989-CV, 2013 WL 1437718, at *3 (Tex.
App.—Houston [14th Dist.] Apr. 9, 2013, no pet.) (mem. op.) (the trial court was
free to resolve parties’ conflicting testimony regarding physical abuse). The trial
court did not abuse its discretion by concluding that Father’s description of the
June 2016 incident did not constitute changed circumstances necessitating
modification of the July 2015 conservatorship order. See In re J.R.P., 526 S.W.3d
at 777.
Moreover, Mother also testified with respect to her “volatile” relationship
with Father. Mother testified that Father regularly threatened to “take [her] kids
away;” to have her put in jail; and to get her fired from her job as a mortgage
banker. Mother testified that, during Father’s periods of possession, he would limit
Mother’s ability to see or talk to H.P.J. Mother stated that there were numerous
times when Father would go for about a month without communicating with her or
H.P.J. Mother testified that Father would insult her in front of H.P.J.
Mother testified that Father previously accused her of having sexual
relationships with several of her coworkers, and that Father emailed allegedly
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incriminating photographs of Mother to the wives of the coworkers with whom he
accused her of having an affair. Father acknowledged sending these emails.
On cross-examination, Father also acknowledged calling numerous parties
with allegations regarding Mother’s fitness as a parent, including Mother’s ex-
husband and her ex-husband’s parents. Father also acknowledged maintaining a
blog where he discussed his “custody case with [Mother] who has a narcissistic
personality disorder.” Father testified that his blog has generated 18,000 views.
Father stated that he did not use Mother’s name on the blog but acknowledged that
she was the person described in the blog.
We are to defer to the trial court’s resolution of conflicting evidence and
credibility determinations — a standard particularly appropriate here, given the
nature of Father’s and Mother’s testimony. Father and Mother described a
contentious relationship, each depicting the other as the source of conflict. The
trial court, as factfinder, was in the best position to observe and assess Father’s and
Mother’s demeanors and credibility, and to form its own conclusions. See In re
A.L.E., 279 S.W.3d at 427. The trial court acted within its discretion in finding
that Father’s allegations of abuse did not constitute a material and substantial
change in circumstances warranting a modification of the July 2015
conservatorship order.
We overrule Father’s seventh issue.
II. Joint Managing Conservators
Father asserts the trial court abused its discretion by permitting Mother to
remain one of H.P.J.’s joint managing conservators and cites Texas Family Code
section 153.004, entitled “History of Domestic Violence or Sexual Abuse,” which
states:
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(a) In determining whether to appoint a party as a sole or joint managing
conservator, the court shall consider evidence of the intentional use of
abusive physical force, or evidence of sexual abuse, by a party directed
against the party’s spouse, a parent of the child, or any person younger
than 18 years of age committed within a two-year period preceding the
filing of the suit or during the pendency of the suit.
(b) The court may not appoint joint managing conservators if credible
evidence is presented of a history or pattern of past or present child
neglect, physical or sexual abuse by one parent directed against the other
parent, a spouse, or a child . . . .
Tex. Fam. Code Ann. § 153.004 (Vernon Supp. 2018). Asserting that Mother
abused and injured Father and H.P.J., Father contends that “credible evidence of a
history of pattern of physical abuse” was presented, preventing Mother from
serving as H.P.J.’s joint managing conservator. Father supports his argument with
reference to the allegations of child abuse and domestic violence discussed above.
When, as here, the trial court is the factfinder, it is the sole judge of the
weight and credibility of the evidence — if the trial court does not find “credible
evidence” of a history of abuse, then section 153.004(b) does not prohibit the court
from appointing joint managing conservators. Coleman v. Coleman, 109 S.W.3d
108, 111 (Tex. App.—Austin 2003, no pet.); see also Matter of Marriage of
Harrison, No. 14-15-00430-CV, 2018 WL 2926268, at *19 (Tex. App.—Houston
[14th Dist.] June 12, 2018, no pet. h.); In re C.Y.C., No. 14-11-00341-CV, 2012
WL 3223674, at *5 (Tex. App.—Houston [14th Dist.] Aug. 9, 2012, pet. denied)
(mem. op.)
Father’s allegations of child abuse focus on the four incidents discussed
above: (1) Mother allegedly held H.P.J. on the floor and forcefully brushed his
teeth; (2) Mother allegedly carried H.P.J. by the wrists and “threw him against a
wall;” (3) H.P.J. received seven stitches on his head while he was in Mother’s care;
and (4) H.P.J. sustained “cut[s] or burns on his torso.” Mother denied intentionally
22
injuring H.P.J. and testified that H.P.J.’s injuries were caused by accidents and
treated appropriately. Resolving this conflicting evidence and its attendant
credibility determinations, the trial court reasonably could have concluded that this
evidence did not establish a “history or pattern of past or present” child abuse. See
Tex. Fam. Code Ann. § 153.004; see also Matter of Marriage of Harrison, 2018
WL 2926268, at *19-22; In re C.Y.C., 2012 WL 3223674, at *4-7; Lowth v. Lowth,
No. 14-03-00061-CV, 2003 WL 22996939, at *5-6 (Tex. App.—Houston [14th
Dist.] Dec. 23, 2003, pet. denied) (mem. op.).
Father’s allegations of domestic abuse focus on the three incidents discussed
above: (1) Mother allegedly “slam[med] [Father] in the gate;” (2) Mother
allegedly broke into Father’s residence, trashed his home office, yelled at him, and
wrote “LOSER” on his chest; and (3) Mother allegedly “physically attacked
[Father] from behind.” Mother disputed these allegations and provided further
testimony regarding the “volatile” nature of her and Father’s relationship. Because
of this conflicting evidence, nothing in the record undisputedly shows a history or
pattern of violence. See Lowth, 2003 WL 22996939, at *6. As with Father’s
allegations of child abuse, the trial court reasonably could have concluded that this
evidence was not credible or did not establish a “history or pattern of past or
present” abuse. See Tex. Fam. Code Ann. § 153.004; see also Matter of Marriage
of Harrison, 2018 WL 2926268, at *19-22; In re C.Y.C., 2012 WL 3223674, at *4-
7; Lowth, 2003 WL 22996939, at *5-6.
We overrule Father’s eighth issue.
III. Father’s Possession Order
In his final issue, Father asserts that the trial court abused its discretion by
failing to render a possession order in his favor. Father relies on Texas Family
Code sections 153.004(d) and (d-1), which limit a parent’s access to a child if the
23
trial court finds by a preponderance of the evidence that “there is a history or
pattern of committing family violence.” See Tex. Fam. Code Ann. § 153.004(d),
(d-1). Father summarily asserts that he “established that [Mother] has a history or
pattern of family violence.”
Father’s argument on this point does not reference any incidents or
allegations other than those discussed above. As we have noted several times, the
evidence and testimony addressing these allegations conflicts. In resolving these
conflicts, the trial court was vested with broad discretion, and we will not
substitute our judgment for that of the trial court. See In re J.R.P., 526 S.W.3d at
778. Because of the conflicting evidence, the trial court reasonably could have
concluded that the evidence did not establish “a history or pattern of . . . family
violence.” See Tex. Fam. Code Ann. § 153.004(d); see also Matter of Marriage of
Harrison, 2018 WL 2926268, at *19-22; In re C.Y.C., 2012 WL 3223674, at *4-7;
Lowth, 2003 WL 22996939, at *5-6.
We overrule Father’s ninth issue.
CONCLUSION
We overrule Father’s issues and affirm the trial court’s June 9, 2017 final
judgment.
/s/ Tracy Christopher
Justice
Panel consists of Chief Justice Frost and Justices Christopher and Zimmerer.
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