in the Interest of R.A. and T.A. ( 2022 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
________________
NO. 09-20-00275-CV
________________
IN THE INTEREST OF R.A. AND T.A.
________________________________________________________________________
On Appeal from the 418th District Court
Montgomery County, Texas
Trial Cause No. 17-03-03822-CV
________________________________________________________________________
MEMORANDUM OPINION
Mother appeals the trial court’s order denying her modification request of a
February 2018 Order and seeking a standard possession order and to be named R.A.
and T.A.’s joint managing conservator. 1 In four issues, Mother asks whether the trial
court: (1) erred when it failed to include or make separate findings in the possession
order as to the reasons why it deviated from the statutory presumption and failed to
award her access under a standard possession order; (2) abused its discretion and
misapplied the law to the facts of this case when it failed to apply the statutory
1We will refer to the children by their initials and the parents as “Mother” and
“Father.”
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presumptions found in Chapter 153 of the Texas Family Code; (3) abused its
discretion by denying her request to modify the terms of possession and access in
the previous order from supervised to the standard possession order; and (4) abused
its discretion by denying her motion to modify the terms of conservatorship in the
previous order from sole managing conservator to joint managing conservators.2 For
the following reasons, we affirm the trial court’s judgment.
I. Background
In February 2018, the trial court named Father as R.A. and T.A.’s sole
managing conservator and Mother as possessory conservator with scheduled
supervised visitation and scheduled FaceTime visitation. The underlying suit
affecting parent-child relationship (SAPCR) included allegations by Father that
Mother abused alcohol and prescription medications, drove impaired with the
children in the car, and locked the children in their rooms so she could drink at night
for extended periods such that the children had to relieve themselves in the closet.
The trial court incorporated a finding into its February 2018 Order that the material
allegations were true. Under that Order, the trial court awarded Mother scheduled
supervised visitation two to three times per month at Access Builds Children
(“ABC”) and scheduled FaceTime or Skype visits twice a week. The Order granted
2We have numbered Mother’s issues in the order she presents them in her
substantive argument rather than in the order she lists them in her “Issues Presented”
section.
2
Mother the right to attend the children’s school activities and obtain information
from the children’s psychologist, pediatrician, dentist, and school, among other
things. In February 2020, Mother filed her Original Petition to Modify Parent-Child
Relationship and Request for Temporary Orders asserting that the modification was
in the children’s best interest and the circumstances have materially and substantially
changed since the rendition of the February 2018 Order.
During trial, Mother and Father testified. Mother introduced records from a
therapist she consulted to prepare for court on one occasion after filing her
modification, and TalkingParents App records were admitted showing the parents’
communications with each other. Additionally, the trial court’s February 2018 Order
was admitted into evidence.
Mother testified that she previously attempted suicide while under the
influence of alcohol, and the records confirm this. Mother testified she does not
believe she has a problem with alcohol, but looking back, she believed she had a
problem in February 2018. Mother testified she has not undergone any therapy since
February 2018, because she “didn’t need it.” Mother also testified she had not
undergone an alcohol evaluation or enrolled in alcohol treatment since February
2018, because she does not believe she has a problem.
Mother testified she only saw a therapist one time in June or July 2020 to
prepare for trial. During that consultation, Mother did not provide the therapist with
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her prior medical records, and she did not inform the therapist that she drove a
vehicle while under the influence of alcohol with her children present in her vehicle
and she locked the children in their rooms so she could drink alcohol. The therapist
noted, “Mother does not appear to be a danger to herself or others, despite past
suicide attempt which was under the influence of alcohol, and no indications she is
actively suicidal or having impulse control issues.” The therapist’s records also state,
“[I]t is the clinical opinion of this therapist that the client does not present with any
signs or symptoms of a mood or thought disorder at this time.” However, the records
indicated Mother reported alcohol use on the weekends and that she “would benefit
from ongoing counseling and processing of resentment towards Father and her
family regarding them taking children away.” Mother testified she had not attempted
suicide since February 2018 but agreed that someone attempting suicide could cause
the court concern.
Mother admitted she did not exercise any scheduled supervised visitation with
the children at ABC since February 2018, although she had done so prior to the
February 2018 Order. According to Mother, other people at ABC made the children
uncomfortable, and she did not want to create more trauma for them. Mother testified
she did not return to ABC after February 2018, because it was affecting the children,
and she felt it was not in their best interests to see each other in that environment.
4
Mother initially testified that Father refused to work with her when she
attempted to reschedule FaceTime calls; however, the records showed that Mother
frequently rescheduled and called outside designated times. The records and
testimony also established that Father often agreed to Mother rescheduling these
calls. Upon cross examination, Mother admitted that Father only refused to allow
her to reschedule eight to ten times over the course of hundreds of phone calls.
Mother also testified she never attended the children’s school activities
despite the prior Order giving her the right to do so; and when asked if she made that
effort, she indicated she was unaware that she could have. Mother said she had not
accessed the children’s school records or emailed their teachers, but the children told
her about school. Likewise, the prior Order gave her the right to consult with the
children’s psychologist, pediatrician, and dentist, but Mother only visited the
children’s therapist once. 3 Mother did not know the name of the children’s
pediatrician or dentist and had not requested that information.
Father also testified at trial. Although he could not point to any specific
incidents, Father based his opinion that Mother would endanger the physical safety
or emotional well-being of the children on the phone calls he received. Father had
not asked Mother to undergo drug or alcohol testing or evaluation since 2018, even
3Itappeared from the record that Mother’s visit with the children’s therapist
occurred before entry of the February 2018 Order, although it is not entirely clear.
5
though he believed she has a problem, because the court told her to get help, which
he thought she would do. Mother never told him after February 2018 she would get
therapy or treatment for alcohol.
Father said he had not allowed Mother to see the children outside of ABC
since February 2018. Per the prior Order, Mother’s visitation was only at ABC,
which Father was able to do. Father did not believe it was in the children’s best
interests to have unsupervised visits with Mother since she failed to attempt to see
them. He felt it was in the children’s best interests for Mother to show she can follow
the rules and see the children at ABC before the court grants unsupervised visits.
The reason Father would not agree to let Mother see the children at a different
location two to three weeks after the February 2018 Order was because she had done
nothing to prove she had changed. Father denied that Mother made repeated requests
to see the children over the past two years. Father testified Mother never asked for
the name of the children’s pediatrician or dentist and never asked for information
about their school.
II. Trial Court’s Findings of Fact and Conclusions of Law
On September 8, 2020, Mother filed a Request for Findings in Possession
Order pursuant to Texas Family Code section 153.258 asking the Court to state in
the possession order the factors it considered in rendering the order with the specific
reasons for deviations from the standard possession order. See Tex. Fam. Code Ann.
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§ 153.258(a). The trial court signed its Order Denying Modification on September
10, 2020, but the Order did not contain findings. Mother thereafter filed a Motion
for New Trial, to Correct and/or to Reform the Order Denying the Motion to Modify
arguing that the trial court abused its discretion in denying her motion. Mother
argued she was entitled to a new trial because: 1) Father failed to present evidence
to overcome the rebuttable presumptions of Texas Family Code sections 153.131
and 153.252; 2) the trial court failed to include in its order the court’s findings on
possession despite her request; and 3) the evidence was legally and factually
insufficient to support the trial court’s Order Denying Modification. Additionally,
Mother argued the trial court should correct or reform the Order Denying
Modification to include any findings when it deviated from the presumptions found
in sections 153.131 and 153.252. At the same time, Mother filed a Request for
Findings of Fact and Conclusions of Law pursuant to Texas Rules of Civil Procedure
296 and 297 for the Order Denying Modification. On October 28, 2020, Mother filed
a Notice of Past Due Findings of Fact and Conclusions of Law. On November 6,
2020, the trial court denied Mother’s Motion for New Trial, to correct and/or Reform
and entered Findings of Fact and Conclusions of Law.
The trial court’s Findings of Fact included the following:
2. On January 30, 2018, a final bench trial was held regarding the
original suit affecting the parent-child relationship in this cause.
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3. On February 13, 2018, the Court signed a Final Order in Suit
Affecting the Parent-Child Relationship. This Order (a) appointed
[Father] as the sole managing conservator of the minor children, (b)
appointed [Mother] as a Possessory Conservator of the minor children,
(c) provided that [Mother] have supervised possession of and access to
the minor children at Access Builds Children (a supervised visitation
facility in Conroe, Texas) on the Saturdays following the 1st, 3rd and
5th Fridays of each month, (d) provided that [Mother] may have
electronic access via Skype or Facetime with the minor children every
Tuesday and Thursdays between the hours of 7:00 p.m. and 7:30 p.m.,
(e) granted [Mother] the right to consult with school officials regarding
the welfare and educational status of the children and to attend school
activities, and (f) granted [Mother] the right to consult with physicians,
dentists, or psychologist of the children.
4. On February 18, 2020, [Mother] filed a suit seeking to modify the
Court’s Order of February 13, 2018. In her petition, [Mother] sought to
be named a joint managing conservator of the children the subject of
this suit, and requested a Standard Possession Order for her periods of
possession of and access to the children the subject of this suit.
5. [Mother] failed to exercise any periods of possession of, or access to,
the children through the supervised visitation facility, Access Builds
Children, from February 13, 2018, to the date of final trial on August
24, 2020.
6. [Mother] failed to fully and timely exercise her rights to
communicate with the children via Skype or Facetime from February
13, 2018 to August 24, 2020.
7. [Mother] failed to consult with school officials concerning the
children’s welfare and educational status from February 13, 2018 to
August 24, 2020.
8. [Mother] failed to attend any school activities at the children’s school
from February 13, 2018 to August 24, 2020.
9. [Mother] failed to consult with the children’s physicians, dentists, or
psychologist from February 13, 2018 to August 24, 2020.
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10. [Mother] did not attend any counseling for alcohol abuse or
regarding her suicide attempt in 2017, during the period of February 13,
2018 through August 24, 2020.
11. On September 8, 2020, [Mother] filed a Request for Findings in
Possession Order pursuant to Texas Family Code Section 153.258.
12. On September 10, 2020, a final order in the modification suit was
signed, therein denying [Mother] petition for modification.
13. Notice of Past Due Findings of Facts and Conclusions of Law on
her Request for Findings in Possession Order pursuant to Texas Family
Code Section 153.258 were due on October 12, 2020. See TEX. FAM.
CODE §153.258 and TEX. R. CIV. P. 297.
14. [Mother] failed to file a timely Notice of Past Due Findings of Fact
and Conclusion of Law as to her Request for Findings in Possession
Order filed on September 8, 2020.
15. On September 28, 2020, [Mother] filed a Request for Findings of
Facts and Conclusions of Law pursuant to Texas Rules of Civil
Procedure 296 and 297.
16. On October 21, 2020, [Mother] filed a timely Notice of Past-Due
Findings of Fact and Conclusions of Law pursuant to Texas Rules of
Civil Procedure 297.
17. Any finding of fact that is a conclusion of law shall be deemed a
conclusion of law.
The trial court’s conclusions of law included the following:
1. The 418th Judicial District Court is the court of continuing exclusive
jurisdiction regarding the children made the basis of this suit.
2. [Mother] is a person entitled to file a petition for modification of a
prior order of this Court regarding possession and conservatorship of
the children. TEX. FAM. CODE §156.002.
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3. The Court may modify its underlying order if the modification of
said order would be in the best interest of the child and the
circumstances of the child or a conservator affected by the order have
materially and substantially changed since the date of the rendition of
the order sought to be modified. TEX. FAM. CODE §156.l0l(a)(l).
4. [Mother] failed to sustain her burden to show that the circumstances
of the child or a conservator affected by the order had materially and
substantially changed since the Court’s order dated February 13, 2018.
TEX. FAM. CODE §156.l0l(a)(l).
5. It was not in the best interest of the children the subject of this suit to
modify the terms and conditions of the underlying order as to
conservatorship, and as to possession of and access to the children by
[Mother].
6. Petitioner’s attorney’s post-trial argument that the Court was
required to award a Standard Possession Order is inaccurate as the
presumptions in Chapter 153 of the Texas Family Code only apply to
original suits, and not to modification cases under Chapter 156. Weldon
v. Weldon, 968 S.W.2d 515 (Tex. App.-Texarkana 1998, no pet.); In re
V.L.K, 24 S.W.3d 338 (Tex. 2000).
7. Petitioner’s attorney’s post-trial argument that the Court was
required to award a Standard Possession Order is inaccurate as the
presumption in Section 153.252 of the Texas Family Code was rebutted
by the Final Order in Suit Affecting the Parent-Child Relationship
signed by the Court on February 13, 2018.
8. Even if a presumption existed requiring the Court to award a
Standard Possession Order, there has been no material and substantial
change of circumstances to justify a modification of [Mother’s] periods
of possession and access to the children since February 13, 2018.
9. The provisions set forth in the Order in Suit Affecting Parent-Child
Relationship signed on February 13, 2018, are in the best interest of the
children.
10. Any conclusion of law that is a finding of fact shall be deemed a
finding of fact.
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III. Standard of Review
“Because the ‘trial court is given wide latitude in determining the best interests
of a minor child,’ we review a modification order under an abuse of discretion
standard.” Smith v. Karanja, 546 S.W.3d 734, 737 (Tex. App.—Houston [1st Dist.]
2018, no pet.) (quoting Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982));
see also Interest of E.C.C., 539 S.W.3d 425, 429 (Tex. App.—Beaumont 2018, pet.
denied) (noting that an order modifying conservatorship is reviewed for abuse of
discretion). A trial court abuses its discretion if it acted without reference to any
guiding rules or principles; in other words, we ask whether the act was arbitrary or
unreasonable. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (citation
omitted).
IV. Analysis
A. Texas Family Code Section 153.258
Mother complains that the trial court abused its discretion by failing to comply
with Texas Family Code section 153.258 and include findings in the Order Denying
Modification. See Tex. Fam. Code Ann. § 153.258. Mother concedes she did not file
a Notice of Past Due Findings for her section 153.258 request, but she argues that
she gave the trial court the opportunity to rectify the omission when she filed her
Motion for New Trial and/or to Reform the Order. For purposes of our analysis, we
will assume without deciding that is true.
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Section 153.258 requires a trial court to “state in writing the specific reasons
for the variance from the standard [possession] order[]” if requested by a party. Id. §
153.258(a). A request for findings of fact under this section must conform to the
Texas Rules of Civil Procedure. Id. § 153.258(b). While the previous version of the
statute required the findings be included in the order itself, in 2017, the Legislature
amended the statute and removed this requirement. See id. § 153.258(a); Act of May
19, 2017, 85th Leg., R.S., ch. 421, §§ 14–15, 2017 Tex. Sess. Law Serv. 1131; see
also Interest of Z.G., No. 02-19-00352-CV, 2021 WL 1229967, at *24 (Tex. App.—
Fort Worth Apr. 1, 2021, no pet.) (mem. op.) (explaining that the amended version
of section 153.258 no longer requires findings be included in the order itself).
Although the trial court failed to include the specific reasons in the Order
Denying Modification, on November 6, 2020, it issued Findings of Fact and
Conclusions of Law under Rules 296 and 297 of the Texas Rules of Civil Procedure
per Mother’s subsequent and timely request. See Tex. R. Civ. P. 296,
297 (addressing when trial court should file findings of fact and conclusions of law
when timely requested); see also Tex. Fam. Code Ann. § 153.258 (requiring request
for section 153.258 findings conform to Rules 296 and 297). Those Findings
included specific reasons for the trial court’s deviation from the standard possession
order, including that: (1) Mother failed to exercise any periods of supervised
visitation as provided in the February 2018 Order through the time of the
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modification hearing; (2) that she failed to fully and timely exercise her rights to
communicate with the children via Skype or FaceTime as provided in February 2018
Order through the time of the modification hearing; (3) failed to attend school
activities; (4) failed to consult with the children’s medical providers; and (5) she
failed to attend any counseling for alcohol abuse or regarding her 2017 suicide
attempt between the time of the February 2018 Order and the modification hearing.
The trial court’s Conclusions of Law included that: (1) Mother failed to sustain her
burden to show that the circumstances of the child or conservator affected by the
order have materially or substantially changed since the court’s February 2018 Order
sought to be modified; (2) it was not in the children’s best interest to modify the
terms and conditions of the underlying order as to conservatorship and as to
possession and access of the children by Mother; and (3) even if a presumption of
the Standard Possession Order applied to modification proceedings, there has been
no material and substantial change of circumstances to justify modification of
Mother’s periods of possession and access.
These Findings of Fact and Conclusions of Law specified the trial court’s
reasons for deviating from the standard possession order and fulfilled Family Code
section 153.258’s requirements. See Tex. Fam. Code Ann. § 153.258(a); Interest of
Z.G., 2021 WL 1229967, at *24. We overrule this issue.
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B. Issues Two and Three: Statutory Presumptions, Material and Substantial
Change
In Mother’s next two issues, she contends the statutory presumptions found in
Chapter 153 of the Texas Family Code apply to modification proceedings under
Chapter 156. Specifically, Mother argues that the Chapter 153 presumptions for joint
managing conservatorship and the standard possession order apply to her
modification, and the trial court misapplied the law in concluding otherwise. Mother
also contends that she presented uncontroverted evidence of a material and
substantial change which should be considered with the presumption in favor of a
standard possession order, and Father failed to rebut this presumption. In support of
these arguments, Mother challenges the trial court’s Findings of Fact numbers 6 and
10. She also challenges the trial court’s Conclusions of Law 6 through 8.
i. Modification Law Generally
To be entitled to a modification, a party must prove 1) it was in the children’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 prior order.
See Tex. Fam. Code Ann. § 156.101(a)(1)(A). In a modification suit, the threshold
question is whether the moving party has met the burden of establishing a material
and substantial change. In re T.M.P., 417 S.W.3d 557, 563 (Tex. App.—El Paso
2013, no pet.). In determining whether circumstances have materially and
14
substantially changed, the trial court compares evidence of the conditions existing
when the prior order was entered with evidence of the conditions existing at the time
of the hearing on the petition to modify. Id. at 563–64. Determination of a substantial
and material change is not controlled by a set of guidelines; instead, it is fact
specific. Arredondo v. Betancourt, 383 S.W.3d 730, 734 (Tex. App.—Houston [14th
Dist.] 2012, no pet.).
ii. Statutory Presumptions in Modification Proceedings
In support of her arguments that the statutory presumptions in Chapter 153
apply to modification proceedings under Chapter 156, Mother cites to In re C.J.C.,
603 S.W.3d 804 (Tex. 2020). We do not read In re C.J.C. so broadly. The C.J.C.
Court dealt with the constitutional presumption under Troxel v. Granville that fit
parents act in the best interest of their children rather than a statutory presumption.
See id. at 807 (citing Troxel v. Granville, 530 U.S. 57, 68 (2000) (plurality opinion)).
The C.J.C. Court explained that Texas had previously adopted a parallel statutory
presumption to the one in Troxel, and that statutory presumption requires a child’s
parents to be appointed managing conservators in initial custody proceedings unless
it would significantly impair the child’s physical health or emotional development.
See id. (citing Tex. Fam. Code Ann. § 153.131(a)). The Texas Supreme Court
expressly stated that this “statutory presumption governing original custody
determinations, however, is not carried forward into the statute governing
15
proceedings to modify those determinations[]” and noted its prior holding that the
statutory presumption does not apply in modification proceedings. Id. (citing Tex.
Fam. Code Ann. § 156.101(a)(1); In re V.L.K., 24 S.W.3d 338, 339-40 (Tex. 2000)).
Likewise, the Court recognized the modification statute incorporates the
understanding that the first judgment at the time it was entered was res judicata of
best interest and custody. See id. at 818 (quoting Taylor v. Meek, 276 S.W.2d 787,
790 (Tex. 1955)).
The Court further reasoned,
Although a statutory presumption is inapplicable to a chapter 156
modification proceeding, we read that chapter to avoid potential
constitutional infirmities. Thus, we read any best-interest determination
in which the court weighs a fit parent’s rights against a claim to
conservatorship or access by a nonparent to include a presumption that
a fit parent acts in his or her child’s best interest. . . . Our 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. But when nonparents seek court-ordered custody
of a child subject to an existing order, under which one or both fit
parents were appointed managing conservators, that parent or parents
retain the presumption that protects their fundamental right to
determine their child’s best interest.
Id. at 818–19 (internal citations omitted). In other words, the parent or parents
previously named as managing conservator will retain a fit parent presumption in
modification proceedings where a nonparent seeks court-ordered custody of the
child. See id.; In re B.B., 632 S.W.3d 136, 140 (Tex. App.—El Paso 2021, no pet.)
(discussing C.J.C. and noting that parent could not avail himself of fit parent
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presumption in a modification where he was not previously recognized as the child’s
managing conservator). C.J.C. did not hold that Chapter 153’s statutory
presumptions apply to Chapter 156 modification proceedings where a parent who
had not been named a managing conservator under the existing order sought to
modify it. See In re C.J.C., 603 S.W.3d at 808, 818–19; In re B.B., 632 S.W.3d at
140.
In a context like the one before us, our sister courts have explained that the
presumption that joint managing conservatorship is in the child’s best interest
applies to the original conservatorship determination; however, once a
conservatorship order has been implemented, res judicata attaches, and the order
establishes what was in the best interest at the time of its entry. See In re T.W.E., 217
S.W.3d 557, 559 (Tex. App.—San Antonio 2006, no pet.); Bates v. Tesar, 81 S.W.3d
411, 421 (Tex. App.—El Paso 2002, no pet.); see also Taylor, 276 S.W.2d at 790.
Therefore, a party attempting to modify a prior conservatorship order must meet the
requirements of Texas Family Code section 156.101. See Tex. Fam. Code Ann. §
156.101; T.W.E., 217 S.W.3d at 559.
We hold Chapter 153’s statutory presumptions of parents as joint managing
conservators and a standard possession order do not apply to Chapter 156
modification proceedings where the parent seeking modification was not named a
managing conservator under the existing order. See In re C.J.C., 603 S.W.3d at 808,
17
818–19; In re B.B., 632 S.W.3d at 140; see also In re V.L.K., 24 S.W.3d at 341. The
trial court correctly determined in its Conclusions of Law that the statutory Chapter
153 presumptions did not apply in this modification. This case does not involve
nonparents seeking custody or access over a fit parent’s objection. Rather, it involves
Mother, who had not been previously named a managing conservator attempting to
modify the order appointing Father as the children’s sole managing conservator. We
overrule issue two.
iii. Material and Substantial Change
Although we have already determined that the statutory Chapter 153
presumption of a standard possession order did not apply in this modification
proceeding, we will address Mother’s contention that she presented uncontroverted
evidence of a material and substantial change. In support of this argument, Mother
challenges the trial court’s Findings of Fact that 1) she did not fully and timely
exercise her rights to communicate with the children via FaceTime since the
February 2018 Order and modification hearing, and 2) Mother did not attend any
counseling for alcohol abuse or her 2017 suicide attempt since the February 2018
Order and the modification hearing. She also disputes the trial court’s Conclusion of
Law number 8 that even if a presumption existed requiring the court to award a
standard possession order, there has been no material and substantial change of
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circumstances to justify a modification of her periods of possession and access to
the children since February 13, 2018.
Mother acknowledged during this modification proceeding that her actions
resulted in the February 2018 Order appointing Father as sole managing conservator.
As the party seeking the modification of that Order, Mother bore the burden of
showing a material and substantial change in circumstances in the period since its
entry and the modification proceeding. See Tex. Fam. Code Ann. §
156.101(a)(1)(A); In re T.M.P., 417 S.W.3d at 563.
The trial court heard evidence at the modification hearing, much of which
concerned Mother’s refusal to exercise supervised visitation and her failure to seek
treatment for alcohol issues and prior suicide attempt, plus her failure to consult with
the children’s pediatrician, psychologist, dentist, and school. Mother testified she
did not exercise supervised in-person visits with her children for over two years.
Additionally, Mother testified about multiple occasions where she had to reschedule
FaceTime visits with the children, which the TalkingParents App records also
showed. She frequently asked Father to reschedule the calls.
At the time of the February 2018 Order, Mother admittedly had issues with
alcohol and had attempted suicide while under the influence of alcohol. Mother also
testified that while she does not believe she currently has an alcohol problem, she
did in February 2018. Despite this, Mother’s own testimony established that she did
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not seek medical help or treatment for these issues in the intervening period between
February 2018 Order and the modification proceeding.
Mother points to her testimony and records from a therapist she saw on one
occasion to prepare for trial that indicated she was not presently experiencing
suicidal ideation or reported alcohol problems. That therapist did not have access to
her medical history or records and did not perform any tests. The same therapist’s
report noted that Mother reported alcohol use on the weekends and that she would
benefit from ongoing counseling. Mother testified she had not undergone an
evaluation for alcohol abuse or treatment since February 2018.
Contrary to Mother’s assertion, Father did offer evidence to controvert
Mother’s evidence of a material and substantial change. Father testified he believes
that Mother has an alcohol problem. Father also explained that the trial court told
Mother previously she needed to get help, and he thought she would do so. Father
did not believe it was in the children’s best interests to have unsupervised visits with
Mother since she failed to attempt to see them. Instead, he felt it was in their best
interests for Mother to show she can follow the rules and see the children at ABC
before the court grants unsupervised visits. Father denied that Mother made repeated
requests to see the children over the past two years.
The evidence in this case supports the trial court’s Findings of Fact that
Mother failed to fully and timely exercise her FaceTime visits and failed to attend
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counseling since February 2018. Likewise, the evidence supported the trial court’s
Conclusion of Law that there had not been a material and substantial change of
circumstances that would justify modifying the February 2018 Order. We overrule
this issue.
C. Denial of Modification and Abuse of Discretion
In her last issue, Mother argues the trial court abused its discretion by denying
her requested modification from a sole managing conservatorship to a joint
managing conservatorship. Mother again argues a Chapter 153 presumption, that
joint managing conservatorship is in the best interest of the child, applies to her
modification proceeding. See Tex. Fam. Code Ann. § 153.131(a). Mother again cites
to C.J.C. for this proposition; however, for the reasons we outlined above, we believe
Mother reads C.J.C. too broadly. Mother was required to prove in this case that the
modification was 1) in the children’s best interest, and 2) the circumstances of the
children, Mother, or Father had materially and substantially changed. See Tex. Fam.
Code Ann. § 156.101(a)(1)(A). Having already determined that Mother failed to
show a substantial and material change in circumstances, we conclude that she was
not entitled to modify the February 2018 Order naming Father as sole managing
conservator and her as possessory conservator. See id. The trial court did not abuse
its discretion in determining that joint managing conservatorship was not in the
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children’s best interest and denying the modification. See Karanja, 546 S.W.3d at
737; E.C.C., 539 S.W.3d at 429. We overrule this issue.
V. Conclusion
Having overruled Mother’s issues, we affirm the trial court’s judgment.
AFFIRMED.
____________________________
W. SCOTT GOLEMON
Chief Justice
Submitted on February 25, 2022
Opinion Delivered October 13, 2022
Before Golemon, C.J., Kreger and Johnson, JJ.
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