in the Interest of K.K.R., a Child

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION

No. 04-18-00250-CV

IN THE INTEREST OF K.K.R., a Child

From the 293rd Judicial District Court, Maverick County, Texas Trial Court No. 11-06-26606-MCV Honorable Susan D. Reed, Judge Presiding

Opinion by: Sandee Bryan Marion, Chief Justice

Sitting: Sandee Bryan Marion, Chief Justice Patricia O. Alvarez, Justice Liza A. Rodriguez, Justice

Delivered and Filed: February 6, 2019

AFFIRMED

K.K.R.’s mother, L.D., appeals the trial court’s order modifying a prior child custody order.

The modified order designates K.K.R.’s father, E.R., as the person with the exclusive right to

determine K.K.R.’s primary residence. L.D. contends the trial court erred in holding a hearing on

E.R.’s petition to modify because E.R. did not attach the affidavit required by section 156.102 of

the Texas Family Code to his petition. L.D. also contends the trial court abused its discretion in

ordering the modification. We affirm the trial court’s order.

BACKGROUND

K.K.R. was born on February 28, 2010. On June 21, 2011, the trial court signed an order

establishing a parent-child relationship between E.R. and K.K.R. and ordering E.R. to pay L.D.

child support. The order also appointed L.D. and E.R. joint managing conservators and designated 04-18-00250-CV

L.D. as the conservator with the exclusive right to determine K.K.R.’s primary residence. The

order also required E.R. to pay L.D. monthly child support.

On August 10, 2015, the trial court signed an order modifying the amount of child support

E.R. was required to pay. The order did not alter the conservatorship provisions of the June 21,

2011 order.

On May 2, 2016, E.R. filed a petition to modify requesting to modify the drop off and pick

up location for purposes of access and possession. On June 10, 2016, E.R. filed an amended

petition to modify requesting to be appointed as the person with the exclusive right to determine

K.K.R.’s primary residence. Both the original and amended petitions state the order to be modified

was rendered on August 5, 2015.

On November 16, 2016, the trial court signed an agreed order for the preparation of a social

study which was prepared on January 25, 2017 and filed of record on February 8, 2017. The trial

court held a bench trial on the amended petition to modify on November 27, 2017.

E.R. lives in San Antonio, Texas, and L.D and K.K.R. live in Eagle Pass, Texas. E.R.

testified he did not have any concerns about L.D.’s living situation or her caring for K.K.R. in

2011, when the initial conservatorship order was entered. However, E.R. testified in 2014, L.D.

sometimes lived with her mother and sometimes lived with her boyfriend, and in 2015, L.D. was

living in an RV with her boyfriend and K.K.R. The social study, which was introduced into

evidence, stated that L.D. reported she and K.K.R. were living with L.D.’s mother until three

months before the social study when she and her boyfriend decided to invest in a two-bedroom

RV. The social study reported that the boyfriend was living in a home adjacent to the RV.

In May of 2017, L.D. met a new boyfriend, and approximately five months before trial,

L.D. began living in an apartment with her new boyfriend and K.K.R. At the time of trial, L.D.

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was six-and-a-half months pregnant. L.D. testified she and her boyfriend were planning to get

married in October of next year.

At trial, L.D. testified she began working as an ER tech in an emergency room in June of

2017 and works twelve hour shifts three days a week but sometimes stays an hour or two longer

than her scheduled shift. Prior to working at the emergency room, L.D. briefly worked as a

receptionist for two months after being fired by a medical care company where she worked for

about a year. At the medical care company, L.D.’s scheduled hours were 5:00 a.m. to 5:00 p.m.

four days a week; however, she often worked sixteen-hour shifts until 10:00 p.m. L.D. testified

her mother and her sister take care of K.K.R. while she is working. In the social study, L.D.

reported she was working three sixteen-hour days since January of 2016.

L.D. admitted K.K.R. had sixteen unexcused absences from school before E.R. filed the

petition to modify but only had missed once or twice since the petition was filed. In the social

study, K.K.R.’s kindergarten teacher confirmed K.K.R. had sixteen reported absences. One school

K.K.R. was attending withdrew her from the school after she was absent for three days and the

school discovered K.K.R. was no longer living in the district. Because L.D. was working, E.R.

drove to Eagle Pass and took the steps necessary to enroll K.K.R. in another school.

L.D. admitted E.R. had taken K.K.R. to routine doctor’s appointments and for vaccines

and was actively involved in picking her up from school and participating in school activities

despite having to travel from San Antonio to Eagle Pass. E.R. testified he is an active parent and

involved in assisting K.K.R. with homework.

K.K.R.’s vaccinations are not up-to-date, and L.D. was waiting until K.K.R. was eligible

for health insurance through L.D.’s new job. L.D. admitted she previously told E.R. she did not

think vaccinations were important. In 2013, K.K.R. severely burned the back of her leg after L.D.

sat her on a counter by a stove to give her medicine, and K.K.R.’s leg moved over onto a burner

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on the stove. Although K.K.R. was crying and in pain, L.D. did not take K.K.R. to the doctor.

E.R. testified when he arrived, K.K.R.’s burn was covered with mustard and was blistering. Based

on her training in nursing school, L.D. told E.R. she did not believe K.K.R. needed to be seen by

a doctor. E.R. took K.K.R. to the doctor the next day, and the burn was diagnosed as a third-degree

burn. Given the severity of the burn, the doctor’s office reported the injury to CPS. Photographs

of the burn were introduced into evidence. As a result of the incident, CPS removed K.K.R. from

L.D.’s care and placed her with L.D.’s mother for several months until L.D. completed services.

E.R. testified at the time K.K.R. was severely burned in 2013, he was living in an apartment

with a male roommate and his work schedule was not stable. In the social study, E.R. reported he

wanted to obtain custody of K.K.R. in 2013 but was not in a stable position to do so. When he

filed his petition, however, E.R. testified his work schedule was stable, and he was living alone in

a two-bedroom apartment. And, E.R.’s sister and aunt are available to care for K.K.R. if needed.

At the conclusion of the testimony, the trial court interviewed K.K.R. in chambers.

Because K.K.R. was seven years old, the interview was not recorded. 1

On January 9, 2018, the trial court signed the order modifying the prior order to designate

E.R. as the person with the exclusive right to determine K.K.R.’s residence. L.D. appeals.

STANDARD OF REVIEW

We review a trial court’s decision to modify an order regarding conservatorship or the

terms of possession of and access to a child under an abuse of discretion standard. In re M.G.N.,

491 S.W.3d 386, 406 (Tex. App.—San Antonio 2016, pet. denied). Under an abuse of discretion

standard, legal and factual insufficiency are not independent grounds for asserting error but are

1 Section 153.009 of the Texas Family Code requires a trial court to interview children 12 years of age or older and allows a trial court to interview children under 12 years of age; however, a record of the interview is only required to be made if the child is 12 years of age or older. TEX. FAM. CODE ANN. § 153.009.

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relevant factors in assessing whether a trial court abused its discretion. Smith v. Karanja, 546

S.W.3d 734, 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.); In re A.G., 531 S.W.3d 329, 333

(Tex. App.—Houston [14th Dist.] 2017, no pet.). A trial court does not abuse its discretion as long

as some evidence of a substantive and probative character supports the trial court’s exercise of its

discretion. In re A.G., 531 S.W.3d at 333; In re C.M.G., 339 S.W.3d 317, 319 (Tex. App.—

Amarillo 2011, no pet.).

SECTION 156.102 AFFIDAVIT

In pertinent part, section 156.102(a) of the Texas Family Code requires an affidavit to be

attached to a petition to modify if the “suit seeking to modify the designation of the person having

the exclusive right to designate the primary residence of a child is filed not later than one year after

. . . the date of the rendition of the [prior] order.” TEX. FAM. CODE ANN. § 156.102(a). The trial

court may not hold a hearing on a petition to modify if the affidavit required by section 156.102(a)

is not attached. See id. § 156.102(c).

In her first two issues, L.D. asserts E.R.’s petition refers to the order entered by the trial

court in August 2015, and he filed his petition to modify on May 11, 2016. Therefore, L.D.

contends the trial court erred in conducting a hearing on E.R.’s petition because the affidavit

required by section 156.102(a) was not attached to his petition. L.D. further contends the affidavit

is a jurisdictional requirement; therefore, the trial court did not have jurisdiction to modify the

prior order. Although he acknowledges his petition referred to the August 2015 order, E.R.

responds that he was seeking to modify the June 21, 2011 order because the August 2015 order

did not change the conservatorship provisions of the 2011 order.

Contrary to L.D.’s contentions, section 156.102(a) only applies to suits seeking to modify

a prior order designating the parent having the exclusive right to designate the primary residence

of a child. Id. § 156.102(a). The only prior order entered by the trial court designating the parent

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having the exclusive right to designate K.K.R.’s residence was the June 21, 2011 order. The

August 2015 order only addressed child support. Because E.R.’s petition was filed more than one

year after the June 21, 2011 order, he was not required to file an affidavit under section 156.102(a).

See In re J.A., 482 S.W.3d 141, 144-46 (Tex. App.—El Paso 2015) (holding affidavit not required

where petition was filed on April 30, 2013, and child support review order entered on April 10,

2013 did not alter conservatorship provisions of October 6, 2010 order).

In addition, “Texas follows a ‘fair notice’ standard for pleading, meaning we consider

whether the opposing party can ascertain from the pleading the nature and basic issues of the

controversy and what testimony will be relevant.” In re A.D., 474 S.W.3d 715, 730 (Tex. App.—

Houston [14th Dist.] 2014, no pet.) (citing Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d

887, 896 (Tex. 2000)). “A petition is sufficient if it gives fair and adequate notice of the facts upon

which the pleader bases his claim.” Id. “A court should liberally construe a petition in favor of

the pleader if no special exceptions are filed.” Id.

In this case, L.D. never brought the absence of the affidavit to the trial court’s attention but

raises the issue for the first time on appeal. During the bench trial, L.D. was clearly aware that the

provision of the prior order E.R. was seeking to modify was the provision designating the person

with the right to determine K.K.R.’s primary residence. 2 In addition, L.D. expressly acknowledges

in her brief that “[t]he conservatorship provisions did not change” in the August 2015 order.

Liberally construing E.R.’s pleading, L.D. had fair notice that the June 21, 2011 order was the

order E.R. sought to modify.

2 E.R.’s attorney noted in her opening statement that the 2015 order only modified child support, and possession and access had not changed since the first order.

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MODIFICATION

In her third issue, L.D. contends the trial court abused its discretion in modifying the prior

order.

Section 156.101 of the Texas Family Code sets forth the grounds upon which a trial court

may modify an order “that provides the terms and conditions of conservatorship, or that provides

for the possession of or access to a child.” TEX. FAM. CODE ANN. § 156.101(a). Such an order

may be modified if: (1) there has been a material and substantial change in circumstances since

the prior order; and (2) the modification would be in the best interest of the child. Id; In re M.G.N.,

491 S.W.3d at 405. L.D. challenges the trial court’s findings on both of these required elements.

To prove a material and substantial change in circumstances since the prior order, the

movant must show 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); In re T.W.E., 217 S.W.3d 557, 559-60 (Tex. App.—San

Antonio 2006, no pet.). “‘The controlling considerations are those changes of conditions affecting

the welfare of the child.’” Epps v. Deboise, 537 S.W.3d 238, 243 (Tex. App.—Houston [1st Dist.]

2017, no pet.) (quoting Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex. 1966)). In deciding

whether circumstances have materially and substantially changed, the trial judge is not confined

to rigid or definite guidelines. Id; In re S.N.Z., 421 S.W.3d at 910. “Rather, the determination

depends on the facts of the case and must be made according to the circumstances as they arise.”

In re S.N.Z., 421 S.W.3d at 910. Change in the home surroundings is one example of a material

and substantial change. Smith, 546 S.W.3d at 741; In re S.N.Z., 421 S.W.3d at 909.

In this case, the trial court did not abuse its discretion in finding a material and substantial

change in circumstances because the evidence clearly established changes in K.K.R.’s home

surroundings. In 2011, E.R. testified he had no concerns about L.D.’s living arrangements. Since

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that time, L.D. and K.K.R. had alternated between living with L.D.’s mom and two of L.D.’s

boyfriends. L.D. and K.K.R. moved in with L.D.’s current boyfriend after L.D. had only been

dating him a few months.

“In reviewing the best interest of the child, we rely on what are known as the Holley

factors.” Epps, 537 S.W.3d at 243 (citing Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)).

The non-exhaustive factors include (1) the desires of the child; (2) the emotional and physical

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

and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs

available to assist these individuals to promote the best interest of the child; (6) the plans for the

child by the individuals seeking custody; (7) the stability of the home or proposed placement; (8)

the acts or omissions of the parent which may indicate that the existing parent-child relationship

is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley, 544 S.W.2d

at 371-72. “The factfinder is not required to consider all of the factors, and the presence of a single

factor may, in some instances, be adequate to support a best-interest finding.” Ceniseros v.

Rychlik, No. 03-17-00532-CV, 2018 WL 4265679, at *5 (Tex. App.—Austin Sept. 7, 2018, no

pet.) (mem. op.). As previously noted, under the abuse of discretion standard of review, we

examine the record and decide if some evidence of a substantive and probative character supports

the trial court’s finding that modification was in the child’s best interest. In re A.G., 531 S.W.3d

at 333; In re C.M.G., 339 S.W.3d at 319.

Although the interview with K.K.R. was not recorded, the trial court was aware of K.K.R.’s

desires in deciding to modify the custody arrangements. E.R. was living in a two-bedroom

apartment where K.K.R. would have her own room, while L.D. was living with a boyfriend she

had only been dating for approximately six months. E.R. had a work schedule that would allow

him to pick up K.K.R. from school and help her with her homework. When a school withdrew

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K.K.R. because she was not living in the district, E.R. drove to Eagle Pass to enroll her in a new

school because L.D. was busy working. While in L.D.’s care, K.K.R. suffered a serious burn and

was not up-to-date on her vaccinations. Having reviewed all of the evidence presented, we hold

the trial court did not abuse its discretion in finding that designating E.R. as the parent with the

exclusive right to determine K.K.R.’s primary residence was in K.K.R.’s best interest. Although

the trial court’s decision was contrary to the evaluator’s recommendation in the social study, the

social study was finalized ten months before trial and was only a portion of the evidence the trial

court considered in making its ruling. See In re M.W.S.H., No. 07-04-0559-CV, 2006 WL 223753,

at *3 (Tex. App.—Amarillo Jan. 30, 2006, no pet.) (mem. op.) (affirming trial court’s ruling on

petition to modify even though contrary to conclusion in court-ordered social study).

CONCLUSION

The trial court’s order is affirmed.

Sandee Bryan Marion, Chief Justice

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