AFFIRM; and Opinion Filed January 28, 2014.
In The Onith of Appeab JFift1 Distritt of UICXUS at 3at1as No. 05-11-01728-CV
IN THE INTEREST OF S.N.Z., A CHILD
On Appeal from the 417th Judicial District Court Collin County, Texas Trial Court Cause No. 417-50064-06
OPINION Before Justices Lang-Miers, Fillmore, and Brown’ Opinion by Justice Brown
The mother of S.N.Z. appeals from an order denying her counter-petition to modify the
parent-child relationship. The trial court specifically denied Mother’s request for standard
visitation, leaving her with limited supervised visitation with S.N.Z., and modified the existing
possession order to change the time of day the supervised visitation occurred. On appeal,
Mother contends the visiting judge that presided over the case was disqualified and challenges
the sufficiency of the evidence to support the continuation of the requirement that her periods of
access and possession be supervised. We affirm the trial court’s order.
The Honorable Mary L. Murphy. Retired Justice. was a member of (he panel at the time this ease was subtititied. hut due to her resignation this Court on June 7, 2013, she did not participate in deciding this case, she was replaced on the panel by Justice Ada E. Brown in trottt accordance with the appellate rules. See TEX. R. Apr. P. 41.1(a). Background
Appellees are S.N.Z.’s paternal aunt and uncle. S.N.Z.s father is deceased. In January
2007, the parties signed a mediated settlement agreement, the terms of which were incorporated
into a final order dated January 29, 2007.2 The 2007 final order named appellees as permanent
managing conservators of S.N.Z. and Mother as possessory conservator with five hours of
supervised visitation with S.N.Z. on the first, third, and fifth Sunday of each month. The parties
selected Mother’s older daughter M.H. as the visitation supervisor. Mother was required to
submit to drug testing, including random drug testing at the request of appellees, but she was not
required to pay child support. Appellees agreed to telephone contact between S.N.Z. and Mother
one night each week. The parties further agreed to attend family counseling sessions. The
parties acknowledged that the agreement on conservatorship was in S.N.Z.’s best interest.
Appellees sought to modify the 2007 final order in June 2009. asking the court to remove
the portion of the final order that prohibited them from traveling with 5±1.7. outside of the state
without the written agreement of Mother. They also asked the court to render a possession order
that provided “greater security” for S.N.Z. and modify Mother’s periods of possession to exclude
the fifth Sunday of each month. In an amended petition, appellees sought removal of the
requirement for telephone access between Mother and S.N.Z.
Mother filed a response and counter-petition to modify. Mother sought to be named the
sole managing conservator of S.N.Z. and terminate all conservatorship rights of appellees. She
alleged that circumstances have materially changed because, among other things, appellees have
denied her access to information about S.N.Z., denied her scheduled visitation and telephone
The January 29. 2tk)7 final order was not included in the record on apçxa[. The rectrnl. hm’e’er. does include the nwdiated seulentent aereentent and related eshihils. Exhibit A In the ntedialed seitlernent agwernent lists the specific terms to which the panics agreed. We rely on this docuttienl to the esleni our exposition provides such background.
-7- calls, removed S.N.Z. from the state without her permission, and refused to participate in
counseling. She also alleged she believed appellees were “poisoning the child’s mind” against
her. She further alleged her physical and financial positions have improved to the point where
she is fully capable and competent to care for S.N.Z. Mother amended her counter-petition,
alleging in the alternative that in the event she is not awarded sole custody, the child’s best
interests would be served by restoring her visitation ‘to those normally referred to as ‘standard
visitation rights.”
Before the start of the trial on January 17, 2012, Mother, acting pro se, objected to the
assignment of the Honorable Don Jarvis as a visiting judge and argued that based on her
objection, the judge lacked jurisdiction to hear the case. She also filed an emergency motion to
dismiss and objection to the judge. The trial judge denied her motion, and the case proceeded to
trial before the court.
Mother explained at trial that she was seeking more time with S.N.Z. and would allow
S.N.Z. to remain living with appellees if she could receive the standard visitation afforded
parents under the family code.3 She presented the testimony of five witnesses in support of her
contention that supervised visitation was no longer required. Her first two witnesses testified
they had known Mother for four or five years and were aware of Mother’s ongoing attempts to
gain more access to her daughter. Both witnesses described Mother as a caring and loving
person, who was upset she could not spend more time with S.N.Z. and be involved in her life.
They testified Mother had told them about an incident that occurred when S.N.Z. was a baby
where Mother broke her neck while catching S.N.Z. during a fail. They agreed this incident
3 Sit Tox. FAM. CoDE ANN. § 151252 (West ZOOS) (rebuttable presuttipuon in conservatorship suits that standard possession order provides reasonable Ittini’ttum possession 1w parent and is in child’s best interest),
-3- showed that a person who saves her baby from a fall would not harm her child; rather, it showed
Mother put the child’s safety before her own health. The witnesses said they had never met
S.N.Z., and one witness acknowledged that all the information she testified to about the case
came from Mother.
Mother’s ex-boyfriend also testified to the incident where Mother “saved her child,”
stating Mother “put her own health at risk to try and save her little girl.” Mother’s ex-boyfriend
dated Mother for four years and was present [or “a lot of supervised visits with various
supervisors.” He testified the visits were upbeat and positive and represented a normal, healthy
interaction. He also testified Mother displayed “true motherly affection” for not only S.N.Z. but
also for M.H. and M.H.’s children when they were present for the visits. He never witnessed any
inappropriate behavior and questioned the need for supervised visitation.
Joanne Goodwin testified to her observations as a court-approved visitation supervisor.
Goodwin also was one of Mother’s personal friends and was not paid for supervising the visits.
Goodwin supervised Mother’s visits with S.N.Z. for about seven months. Goodwin said that at
her first visit. S.N.Z. was sullen but as they got into the visit, she became lively, animated, and
happy. According to Goodwin, the visits seemed to be “pretty fun loving” and Mother and
S.N.Z. had normal mother/daughter exchanges. Goodwin described the last visit she supervised
before the trial began. She said S.N.Z. had been away from Mother for a longer period of time
and it took S.N.Z. a long time to “warm up” to her mother. Goodwin testified, however, that “in
spite of the alienation,” she could see a bond between Mother and S.N.Z. Goodwin did not see
any danger in S.N.Z. spending more time with Mother without a supervisor.
Goodwin also testified that during the last visit, Mother asked S.N.Z. if she was aware of
the upcoming trial. Goodwin heard S.N.Z. tell Mother that she did not want to be at the
-4- proceedings. Goodwin admitted that she has heard Mother relay “factual statements” about
appellees to S.N.Z., but she could not provide an example of what may have been said.
Goodwin further testified to an exchange between Mother and S.N.Z. during which
S.N.Z. said she could not send a text message to Mother because she had been told by her uncle
that she was not supposed to do so. Goodwin said S.N.Z. told Mother that her uncle checked her
text messages each night and that S.N.Z. seemed afraid she would get in trouble if she sent
Mother a text message.
Mother’s final witness was Stephen Finstein. a licensed clinical social worker, family
therapist, and sex-offender treatment provider. Mother hired Finstein to observe a home visit
with S.N.Z. and perform various psychological tests on Mother to evaluate whether there would
be a danger in permitting Mother to have unsupervised visitation. The tests assessed Mother’s
truthfulness and whether parenting is stressful for her. Finstein testified that based on his
observations and testing, he recommended that Mother have unsupervised visitation with S.N.Z.
Finstein admitted on cross-examination that he never interviewed S.N.Z. or M.H.; he received
his information from his interview with Mother and documents she provided. He also agreed
that if a child consistently reports she is being emotionally abused and requests protection from a
person, then that is “something that should be looked into.”
Mother testified she signed the mediated settlement agreement because she was told by
the mediator that she “would never see [S.N.Z.J again if [she] didn’t let her go live with
[appelleesi.” And she clarified that she was asking the court only to increase her visitation rights
because she was concerned about S.N.Z.’s emotional well-being. Mother denied “talking bad”
about appellees to S.N.Z. but admitted to talking with S.N.Z. about the upcoming trial. Mother thinks S.N.Z. should be in counseling and claimed she has been denied the counseling that the
parties agreed to in the mediated settlement agreement.
Counsel for appellees played a tape recording of a phone message Mother left for
appellees. Mother testified she was upset on that call because she thought appellees were putting
Mi-I. in the middle of a disagreement over who was supposed to drive S.N.Z. to and from her
visits. She stated in the call that if appeLlees wanted her to agree that they can take S.N.Z. out of
the state then appellees must “agree to let [her] spend more time with [S.N.Z.], or otherwise,
[Mother] aint going for anything that you want.” Mother said she was not using that as a
“bargaining tool” and what she said on the message was not a threat.
S.N.Z.’s aunt testified that she does not want S.N.Z.’s visits with her mother to stop. But
because there is stress in the visits, she wants the visits to remain supervised for the protection of
S.N.Z. The aunt said S.N.Z. “also wants [the visiLs] to remain supervised” because a supervisor
“will protect her from the things that her mother is saying to her that she feels uncomfortable
with.” S.N.Z. also has told her aunt that Mother is a “loose cannon at times” and that S.N.Z.
wants “less time” with Mother. The aunt said the purpose for their petition to modify the
existing order was to “tweak” the amount of visitation based on what S.N.Z. wanted.
The aunt his encouraged S.N.Z. to have telephone contact with Mother. She explained,
however, that when it came time for the agreed weekly phone call, S.N.Z. did not want to
participate because Mother “would cry and tell her that she just wants her back.” This made
S.N.Z. feel guilty for wanting to live with her aunt and uncle. The aunt said the weekly phone
call caused a lot of emotional stress for S.N.Z., so she told S.N.Z. that she could call Mother
when she wanted. She added that it would be “okay” with them if S.N.Z. wanted to call Mother.
But they did not force it.
-6- The uncle testified that they are not trying to terminate Mother’s parental rights and
agreed that Mother should have a relationship with S.N.Z. But they want to control the
negativity and the “stone throwing” caused by Mother. The uncle explained that although they
do not want to sever S.N.Z.’s relationship with Mother, it has been “very difficult” because
S.N.Z. said “she wants to stop these visits and limit them to maybe once a month.” He testified
that based on what S.N.Z. has told him, he believes it is in S.N.Z.’s best interest to continue
having the visits with Mother supervised and lessen the number of weekend visits with Mother.
He also testified that if S.N.Z. does not want to spend time with Mother, they cannot push her to
do it. The uncle emphasized that they have been “working on this” for six years and it has been
a “battle.” He also emphasized that M.H. stopped supervising the visits because “she doesn’t
want . . . the chaos.”
Mi-I. had testified in an earlier proceeding related to the case. A transcript of that
testimony was admitted into evidence. She testified she quit supervising the visits because she
did not like being in the middle of “that confrontation” or the tension between Mother and
appellees. She said that Mother was “sometimes argumentative” with her during the visits,
which upset S.N.Z., and that Mother would want to “know stuff’ that was going on with S.N.Z.,
including “stuff’ S.N.Z. did not want to talk about. At times, she had a hard time stopping
Mother from asking things that made S.N.Z. uncomfortable.
M.H. decided to stop supervising the visits after an argument with Mother on
Thanksgiving in 2010. She did not remember the substance of the argument but recalled the
argument upset S.N.Z., who left her house crying. M.H. described her relationship with Mother
as “fair” and said that she and Mother “don’t always see eye to eye.” She has a good relationship
with appellees and believes S.N.Z. is being properly cared for by appellees.
-7- M.H. recounted the time when she was contacted by Child Protective Services to pick up
S.N.Z. or she would be sent to foster care. Mother and S.N.Z. had been living in a homeless
shelter. M.H. picked up S.N.Z. from CPS and then contacted appellees to tell them about the
situation. During the related custody proceeding, Mi-I. explained to the judge that she was a
single mom with two children and if S.N.Z. was not given back to Mother, then appellees “would
be happy to take care of her.” M.H. testified that Mother “hates” her because “it’s [hen fault
[S.N.Z.j is with [appellees].” She added that Mother is “very angry” with her because of “this
situation with [S.N1.].” On one occasion, the police were called during a speciaL visit MM.
supervised because Mother “threaten[ed] to kill” Mi-I. She knew that Mother was just upset
about the situation and did not think Mother would do anything. Mother acknowledged she got
into an argument with M.H. during the special visit with S.N.Z. and that the police were called
but denied threatening to kill M.H. because she brought appellees into the situation.
M.H. also recounted the time when she went to live with Mother when she was a
teenager. M.H. originally lived with her father, and without his permission, she “ran away” with
Mother. M.H., her other sister, and Mother went to Hawaii for what was meant to be a vacation.
But they ended up staying in Hawaii for a year and a half before they moved to Texas. While
she was in Hawaii, MM. performed as an exotic dancer with Mother. M.H. was fourteen years
old at the time. Mother denied “stripping’ with Mi-I. when they lived in Hawaii.
The trial court also heard testimony from Nancy Stark, who performed the social study
for this case. As pan of the social study, Stark met with S.N.Z., who told Stark that she wants to
continue living with appellees and visiting her mother with supervised visits.. Stark testified [hat
S.N.Z. is a mature, well-spoken girl, who wants to leave the visits with Mother “exactly how it
is.” Stark said S.N.Z. does not want to be alone with Mother and is scared Mother will take her
-8- away. Stark added that S.N.Z. feels Mother is critical of her and she has to take care of Mother’s
feelings because Mother is emotional. Mother did not cross-examine Stark.
After hearing testimony over two days and interviewing S.N.Z. in chambers, the trial
judge denied Mother’s request for standard visitation. He stated he’s “stuck with what [S.N.Z.J
says” and even though S.N.Z. “would be happier with one visitation” per month, he would keep
the periods of possession “the same as it has been in the past.” He also stated that this would be
the order until S.N.Z. “thinks that she feels safe” with Mother. He did not elaborate on the
factual basis for the findings or prepare written findings of fact and conclusions of law after
Mother requested he do so. He signed an order dated February 20, 2012, denying Mother’s
requests for standard visitation and the removal of limited supervised visitation. The trial court
ordered that Mother’s access “shall remain the same as previously ordered” except that her visits
will begin at 2:00 p.m. and end at 7:00 p.m. (visits under the previous order were from Noon to
5:00 p.m.).
Mother appealed. In her second issue on appeal, Mother complains of the trial judge’s
failure to issue written findings of fact and conclusions of law stating why he deviated from the
standard possession order, as required by section 153.258 of the family code. See TEX. FAM.
CODE ANN. § 153.258 (providing “in all cases in which possession of a child by a parent is
contested, and the possession of the child varies from the standard possession order,” on written
or oral request, “the court shall state in the order the specific reasons for the variance from the
standard order”). By order dated May 30, 2013, we sustained this issue, abated the appeal, and
directed the trial judge to make supplemental findings of fact and conclusions of law that
included the specific reasons for varying from the standard possession order. The trial judge
-9- complied and transmitted his supplemental findings and conclusions to this Court in a
supplemental clerk’s record.
The trial judge recited that after seeing the evidence presented and the demeanor of the
parties and witnesses, he “could not help but decide that the best interest of the child is served by
naming [appellees] Managing Conservators and [Mother] as the Possessory Conservator of
[S.N.Z.] with supervised visitation.” He found there was “credible evidence of a history of past
or present child neglect and abuse” by Mother directed against S.N.Z. and M.H. as well as
evidence that Mother subjected S.N.Z. to “numerous episodes of embarrassing behavior” in front
of S.N.Z.’s teachers and friends. He also found a standard possession order was not proper and
that Mother’s periods of possession deviated from a standard possession order for the following
reasons:
a: History of neglecting and abusing the child, [S.N.Z.];
b: History of ignoring and disregarding court orders;
c: History of emotionally abusing [S.N.Z.] during visitations;
d: Legitimate fear of [Mother] removing or hiding the child from the jurisdiction of the State of Texas or United States[.]
He stated the possession order was “designed to protect the safety and well-being of [S.N.Z.]”
and concluded that Mother was “entitled to supervised periods of possession with [S.N.Z.] under
the terms and conditions set forth in the order.”
Mother’s second issue on appeal is now moot. See Moore i’. First Flit. Resolution
Enters., Inc., 277 S.W.3d 510, 514 n.j (Tex. App—Dallas 2009, no pet.). In our June 26, 2013
order reinstating this appeal, we authorized Mother to file a supplemental brief in which she
could challenge the trial court’s written findings of fact and conclusions of law. Mother filed a
supplemental brief, repeating the first issue she raised in her initial brief and adding a challenge
- 10- to the evidence supporting the trial judge’s denial of her request for standard visitation. We will
consider these issues below. Appellees have not filed an appellate brief or otherwise appeared in
this appeal.
Objection to Visiting Judge
Mother contends in her first issue that the 2012 final order is invalid because the
Honorable Don Jarvis, a “visiting judge presiding over the 417th District Court of Collin County,
Texas,” was disqualified from presiding at trial under section 74.053 of the Texas Government
Code after she filed her “Objection to Assigned Judge.” See TEx. Gov’T CODE ANN. § 74.053(b)
(West 2013). Section 74.053(b) provides that once a party files a timely objection to an assigned
judge, “the judge shall not hear the case.” Id.; see also Lewis v. Leftwich, 775 S.W.2d 848, 849—
50 (Tex. App.—Dallas 1989, orig. proceeding). An objection to an assigned judge is timely if it
is filed before the first hearing or trial, including pretrial hearings, over which the judge is to
preside, without regard to the terms of the particular order under which the judge is assigned.
TEx. Gov’T CODE ANN. § 74.053(c); In re Canales, 52 S.W.3d 698, 704 (Tex. 2001) (orig.
proceeding); Lewis, 775 S.W.2d at 849. Conversely, an objection to an assigned judge is late if it
is filed after the assigned judge makes any ruling in the case. In re Canales, 52 S.W.3d at 704;
Perkins v. Groff 936 S.W.2d 661, 666—67 (Tex. App.—Dallas 1996, writ denied).
Mother premises her disqualification argument on the timeliness of her objection. She
argues her objection was timely because it “had already been on file for five days” before the
trial began on January 17, and was made “both in writing and in open court,” before any ruling in
the matter was made. Yet the clerk’s record shows Judge Jarvis presided in the case before
Mother flied her objection. For example, Judge Jarvis signed an order dated July I, 2011
denying Mother’s motion to transfer venue. This ruling also precedes Mother’s “Notice of
- ii - Objection to Judge Don Jarvis” filed on October 26, 2011. Mother further acknowledged on the
record at the end of trial that Judge Jarvis had been involved with the case since February 2011.
Thus, we conclude Mother’s objection was not timely because it was filed after the assigned
judge had heard and ruled on motions filed by her. See TEx. Gov’T CODE ANN. § 74.053(c); In
re Canales, 52 S.W.3d at 704; Perkins, 936 S.W.2d at 667. We overrule her first issue.
Sufficiency of the Evidence to Support Continued Supervised Visitation
In her supplemental brief, Mother contends the trial judge’s refusal to modify the 2007
final order to allow her standard visitation was an abuse of discretion because there was no
evidence or insufficient evidence to support the continuation of the requirement that her visits
with S.N.Z. be supervised. She contends the only evidence to support the requirement that her
visits be supervised is “inflammatory accusations” of counsel and “innuendo” about her past
behavior.
Legal Standards
We review a trial judge’s decision on a petition to modify under an abuse-of-discretion
standard. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.); In re S.E.K.,
294 S.W.3d 926, 930 (Tex. App.—Dallas 2009, pet. denied). Under this standard, we look to
whether the trial judge acted unreasonably; that is, did the trial judge act in an arbitrary manner
or without reference to any guiding rules or principles. In re WC.B., 337 S.W.3d at 513. The
abuse-of-discretion standard of review overlaps with traditional sufficiency standards of review
in family law cases. hi re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no pet.). As a
result, legal and factual insufficiency challenges are not independent grounds for reversal, but
instead constitute factors relevant to our assessment of whether the trial judge abused his
discretion. Id.; Momch v. Collins, 174 S.W.3d 849, 857 (Tex. App—Dallas 2005, pet. denied).
-12- In determining whether a trial judge abused his discretion because the evidence is insufficient to
support the decision, we first look to whether the judge had sufficient evidence upon which to
exercise his discretion and then look to whether the judge erred in his application of that
discretion. MOrQCII, 174 S.W.3d at 857. Our inquiry under the second question is based on the
elicited evidence; we ask whether the trial judge made a reasonable decision. ilL
In a legal sufficiency review, we consider the evidence in the light most favorable to the
court’s order and indulge every reasonable inference that supports it. City of Keller i’. Wilson,
168 S.W.3d 802, 822 (Tex. 2005); In re S.E.K., 294 S.W.3d at 930. A trial judge does not abuse
his discretion if some evidence of a substantial and probative character exists to support the
decision. In re S.E.K., 294 S.W.3d at 930. In a factual sufficiency review, we consider all the
evidence supporting and contradicting the fact-finder’s finding. Dow Diem. Co. v. Francis, 46
S.W.3d 237, 242 (Tex. 2001) (per curiam). The evidence is factually insufficient if the finding is
so against the great weight and preponderance of the evidence as to be clearly wrong and unjust.
ilL The trial court is in the best position to observe the witnesses and their demeanor and,
therefore, is given great latitude when determining the best interests of the child. Niskar v.
Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.); see also In re R.D.Y., 51
S.W.3d 314, 321 (Tex. App.—Houston [1st Dist.j 2001, pet. denied) (because trial court is in
best position to observe credibility and personalities of witnesses, there is no abuse of discretion
when court bases its decision on conflicting evidence).
Applicable Law
Because Mother was seeking a modification of the 2007 final order—to have standard
visitation with S.N.Z.—Mother bore the burden to establish the requirements of section 156.101
of the family code. See TEx. PAM. CODE ANN. § 156.lOl(a)(l)(A) (West Supp. 2012).
- 13- Specifically, Mother had to show that modification would be in the best interest of S.N.Z. and
“the circumstances of the child, a conservator, or other party affected by the order have
materially and substantially changed” since date of rendition of prior order. id.1 The best
interest of the child “shall always be the primary consideration of the court in determining the
issues of conservatorship and possession of and access to the child.” Ii § 153.002 (West 2008);
Len:, 79 S.W.3d at 14. This means that for Mother to succeed on her request for standard,
unsupervised visitation, she had to come forward with evidence concerning S.N.Z.’s best interest
that has developed since the prior conservatorship order. If Mother fails to show a material and
substantial change in circumstances, her petition to modify must be denied. In re A.L.E., 279
S.W.3d 424, 428 (Tex. App.—Houston [14th Dist.j 2009. no pet.); Bares i’. Tesar, 81 S.W.3d
411, 421 (Tex. App.—El Paso 2002, no pet.); see also Ogletree t’. Crates, 363 S.W.2d 431, 436
(Tex. 1963) (“[un the absence of materially changed conditions, the disturbing influence of
constant re-litigation should be discouraged.”).
To prove that the necessary change occurred, Mother must demonstrate what conditions
existed at the time of the entry of the prior order and what material conditions have changed in
the intervening period. in re WC.B.. 337 S.W.3d at 514; cf T.A.B. i’. WL.B., 598 S.W.2d 936,
939 (Tex. Civ. App.—El Paso 1980, writ ref’d n.r.e.) (noting the requirement is that a change
must be shown and any method of proof that does that satisfies the statutory requirement).
Material changes may include (1) remarriage by a party. (2) poisoning of the child’s mind by a
party, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step
4Mnther claims we should tbllow the holding in In s-c T.D.C, 91 S.W.3d 865, 873 (Tex. App—Fun Wonh 2002. pet. deniedt. in which the Fon Worth court of Appeals held that a showing of a positive inipwvemeot” was required hetbw custody nmy he awarded to the non-parent. Before section 156.101 was rewritten in 2001. a ntovant was required to show a material md substantial change in circumstances as well as positive improveittent or the child. Ste lit s-c V.L,K.. 24 S.W.3d 338. 342 (TeL 20(8)). The current version of the statute, however, no longer includes the requirement of positive improveotent” br the child. Leo: t’. Le,tz, 79 s.W,3d 10. 12 n.J (TeL 2(8)2). We conduct our analysis under the current version of section 156.101.
- 14- parent, and (5) a parent’s becoming an improper person to exercise custody. In re A.L.E., 279
S.W.3d at 428—29. Tn addition, “a course of conduct pursued by a managing conservator that
hampers a child’s opportunity to favorably associate with the other parent may suffice as grounds
for redesignating managing conservators.” Arredondo v. Betancourt, 383 S.W.3d 730, 735 (Tex.
App.—Houston [14th Dist.] 2012, no peL). In deciding whether circumstances have materially
and substantially changed, the trial judge is not confined to rigid or definite guidelines. In re
A.L.E., 279 S.W.3d at 428. Rather, the determination depends on the facts of the case and must
be made according to the circumstances as they arise, Id.
In determining the best interest of a child, a court may consider, among other things, the
desires of the child; the child’s current and future emotional and physical needs; any emotional
or physical danger to the child; the parental abilities of the individual seeking custody and her
plans for the child; the stability of the home; acts or omissions by a parent tending to show the
existing relationship is not a proper one; and any excuse for the acts or omissions of the parent.
Hoiley v. Adams, 544 S.W.2d 367, 371—72 (Tex. 1976) (listing factors used for determining best
interest of the child). The focus of the analysis is on the best interest of the child, not the best
interest of the parent. TEX. FAM. CODE ANN. § 156.101(a); cf ii § 153.002.
Analysis
In challenging the sufficiency of the evidence supporting the trial judge’s decision to
deny her requested modification, Mother questions whether the trial judge gave proper
consideration to S.N.Z. s wishes and erroneously considered alleged improper conduct by ‘
Mother. She also asks whether the judge ignored Finstein’s testimony that he saw no reason why
Mother’s visits with S.N.Z. should be supervised and the continuation of the supervision
requirement was detrimental to her relationship with S.N.Z. Mother contends she presented
-15- “substantial evidence” of her ability to be a loving and caring mother and that the “competent
testimony” established she posed no danger to S.N.Z.
The witness testimony presented by Mother generally depicted her as a loving and caring
mother, who wants to spend more time with S.N.Z. and is concerned about S.N.Z.’s emotional
well-being. Yet two of the witnesses had never met S.N.Z. and therefore could not testify to
Mother’s interactions with S.N.Z. or whether those interactions were positive for S.N.Z.
Goodwin testified she saw no danger in S.N.Z. spending more time with Mother unsupervised,
but the basis for that testimony was that Mother should get more time with S.N.Z. so Mother
could establish a more natural relationship with her. Goodwin explained that “everyone needs a
mother figure in their life, a real mother figure who wants to be with the child.” Similarly, the
ex-boyfriend testified that Mother “has never shown [him] any reason” why her visits with
S.N.Z. required supervision. But he did not explain why supervision was unnecessary other than
the fact that Mother loved S.N.Z. and had been “fighting” for normal access to S.N.Z. since he
had known her. Finally, Finstein testified that during a home visit with Mother and S.N.Z., he
observed a normal, healthy interaction. He said that based on his observations and psychological
testing of Mother, he did not see that Mother required supervised visitation with S.N.Z. Finstein
thought that keeping a parent under supervised visitation for such a long period of time sends a
“damaging message” to the child “if there really isn’t anything wrong with that parent.” Finstein
admitted, however, that he never interviewed S.N.Z., so he did not know what S.N.Z. would
have to say about Mother, positive or negative, and that everything he reviewed and analyzed for
this case came from Mother.
Although Mother testified she would like to spend more time with S.N.Z., none of this
testimony constitutes evidence of the necessary material and substantial change in circumstances
- 16- to justify a modification of the existing possession order. See kL § 156.101(a). Mother’s
arguments and the evidence she cites in support focus on the fact that she cares about S.N.Z. and
wants more access to her. Indeed, throughout the underlying modification proceedings and in
her brief on appeal, Mother maintained her only desire was to have regular visitation without the
intrusion or expense of a supervisor such that she can develop a normal, parent-child relationship
with her daughter. The focus of the analysis, however, is whether there is a material and
substantial change in circumstances that would cause standard visitation to be in S.N.Z.’s best
interest, not in the best interest of Mother. Ii § 156.101(a); icL § 153.002.
Mother also argues that the evidence established “a pattern of interference with her
abilities” to develop a relationship with S.N.Z. and appellees had been “alienating her daughter
from her.” She alleged in her counter-petition and amended counter-petition that circumstances
had materially changed because she believed appellees were “poisoning the child’s mind”
against her and therefore, it would be in S.N.Z.’s best interest to restore Mother’s visitation to
standard visitation. She states that attempts to alienate a child from a parent may be grounds for
modification of custody, citing Allen v. Mancini, 170 S.W.3d 167, 171 (Tex. App.—Eastland
2005, pet. denied). Mother contends the record establishes that appellees “have frightened the
child about calling or texting her mother, and that she is afraid that she will get in trouble for
contacting her mother.” She further contends the record is “replete with unfounded accusations
and innuendo” about her past behavior, including behavior that occurred before S.N.Z. was born.
In Allen, the evidence that supported the trial court’s finding of “extreme attempts to
alienate [the father) from the child” causing a substantial interference with the child’s
relationship with the father consisted of specific testimony that the mother told the child her
father did not love her, stole money, was going to jail, had kidnapped her, and that she should not
-17- call him “Dad.” fit at 170. Additional testimony showed that the mother made visitation
difficult and had called CPS on father, alleging that he abused and neglected the child. 14. That
evidence supported a material and substantial change in circumstances warranting the requested
modification by the father. lit at 171.
No such evidence exists in this case. At best, there is conflicting evidence concerning
S.N.Z.’s permission to send text messages to or call Mother. Goodwin testified she had heard
that S.N.Z.’s uncle did not allow S.N.Z. to contact Mother using her cell phone. But the trial
court also heard testimony from S.N.Z.’s aunt that she encouraged S.N.Z. to contact her mother
and that she could do so anytime she wanted to; appellees just “don’t force it.” There is no abuse
of discretion when a trial judge bases his decision on conflicting evidence. See In re R.D.Y., 51
S.W.3d at 321. Further, unlike the circumstances in A/let,, there is no evidence that appellees
interfered with the child’s relationship with Mother or acted to alienate Mother from S.N.Z.
Appellees testified they did not want to stop S.N.Z.’s visits with Mother; they stated they just
wanted the visits to continue to be supervised to protect S.N.Z. There also is nothing in the
record to suggest appellees told S.N.Z. about any “alleged behavior” by Mother or made
statements to S.N.Z. about Mother.
The modification statute’s requirement that Mother, as the party seeking modification,
establish a material and substantial change in circumstances is predicated upon the doctrine of
res judicata as to the best interest of the child at the time of the original custody proceeding. See
Knowles i’. Grimes, 437 S.W.2d 816, 817 (Tex. 1969) (“A final judgment in a custody
proceeding is res judicata of the best interests of a minor child as to conditions then existing.”);
see also Bates, 81 S.W.3d at 421 (noting that principle of res judicata is recognized in the family
code’s requirement that a party attempting to modify existing custody order must show
-18- circumstances have materially and substantially changed since the time of the prior order). The
requirement also is consistent with the policy to ensure stability for children and prevent constant
litigation in child custody cases. See In re A.L.E., 279 S.W.3d at 428 (quoting Bates, 81 S.W.3d
at 426, and noting that “Texas law has imposed “significant hurdles’ before a conservatorship
order may be modified”). Based on the circumstances at the time of the 2007 final order, the
parties agreed that S.N.Z.’s interests would be served with Mother having five hours of
supervised visitation on the first, third, and fifth Sunday of each month. After considering the
evidence and the demeanor of the parties and witnesses during the modification proceeding, the
trial judge determined that it was in S.N.Z.’s best interest to deny Mother’s request for standard
visitation. That is, the judge determined that appellees would continue to serve as the sole
managing conservators of S.N.Z. and Mother’s access to S.N.Z. as a possessory conservator
would continue to be supervised. The trial judge specifically ordered that Mother’s access to
S.N.Z. was to “remain the same as previously ordered” in the 2007 final order except that the
time of day her visits began and ended changed.
At the modification proceeding, appellees each testified that S.N.Z. wants less time with
Mother and for the visits to remain supervised. They stated that supervised visitation was a way
to control the stress of the visits for S.N.Z. and negativity from Mother. The judge also had
before him the transcript of M.H.’s prior testimony in which M.H. testified she had a hard time
stopping Mother from asking S.N.Z. things that made S.N.Z. feel uncomfortable. Further, the
judge heard testimony about how the police had to be called during a special visit with S.N.Z.
He also asked Mother questions about an instance where police were called because Mother
showed up to S.N.Z.’s cheerleading competition.
- 19- Stark testified that in the process of preparing the home study for the case, she spent time
with S.N.Z. and that S.N.Z. communicated she wants “to continue living where she is” and “to
continue visiting her mother with supervised visits.” Stark summarized her interview with
S.N.Z.:
[S.N.Z.1 is a very mature young girl for her age. She’s very well-spoken. She wants to leave it exactly how it is. She does not want to be alone with her mom. She’s scared her morn will rake her away. She feels her mom is critical of her and that [S.N.Z.j ends up being the adult and her mom ends up being the child. She feels like she has to take care of her mom’s feelings. Her mom is emotional. Her mom gets upset with her. And she just wants to be a kid. She does not want to be the adult in this relationship.
Mother did not challenge Stark’s testimony on cross-examination.
The trial judge conducted an in-chambers interview with S.N.Z., and the record reflects
that this was not the first time he had spoken to the child. Before announcing his decision, the
judge recounted that S.N.Z. told him that she was not being protected during the supervised
visits. The judge heard that Mother questions S.N.Z. “all the time” and that S.N.Z. does not
visualize her visits with Mother the same way as Mother.
The trial court was in the best position to observe the demeanor and personalities of the
witnesses, including Mother, who represented herself at trial, and could feel the forces, powers,
and influences that cannot be discerned by merely reading the record. Bares, 81 S.W.3d at 424.
After reviewing the record, we conclude Mother failed to come forward with evidence that her
requested modification of visitation would be in S.N.Z.’s best interest and that circumstances
have materially and substantially changed since the prior conservatorship order. Thus, Mother
did not meet her burden under section 156.101. We also conclude that the trial judge had
sufficient evidence upon which to determine that maintaining the conservatorship as “previously
ordered” was still in S.N.Z.’s best interest and did not err in the application of that discretion.
- 20 - See In re S.E.K., 294 S.W.3d at 930 (requiring some evidence of a substantial and probative
character to support the trial judge’s decision as to child’s best interest). Thus, based on the
elicited evidence, the trial judge made a reasonable decision when he denied Mother’s request
for standard, unsupervised visitation. Momdz, 174 S.W.3d at 857. Accordingly, we overrule
Mother’s challenge to the sufficiency of the evidence raised in her supplemental brief.
We affirm the trial court’s modification order.
/Ada Brown! ADA BROWN JUSTICE
11 l728F.P05
-21- Gloith of Appeals 21t1t11 District of cxas at DaLlas JUDGMENT
IN THE INTEREST OF S.N.Z., A CHILD, On Appeal from the 4 17th Judicial District Court, Collin County, Texas No. 05-1 l-01728-CV V. Trial Court Cause No. 4 17-50064-06. Opinion delivered by Justice Brown. Justices Lang-Miers and Fillmore participating.
In accordance with this Court’s opinion of this date, the trial court’s order is AFFIRMED. It is ORDERED that appellees Todd and Karri Zeiler recover their costs of this appeal from appellant Ten Lyn Zeiler.
Judgment entered this 28th day of January, 2014.
/Ada Brown/ ADA BROWN JUSTICE
- 22 -