In re A.L.E.

• Decision Date: 12 February 2009
• Docket Number: No. 14-07-00329-CV.,14-07-00329-CV.
• Citation: 279 S.W.3d 424
• Parties: In the Interest of A.L.E.
• Court: Texas Court of Appeals

279 S.W.3d 424

In the Interest of A.L.E.

No. 14-07-00329-CV.

Court of Appeals of Texas, Houston (14th Dist.).

February 12, 2009.

Matthew Walter Mahoney, Pasadena, for Appellant.

Mary Quinn, Chris Spofford, Houston, and Robert D. Ettinger, Austin, for Appellee.

Panel consists of Justices YATES, GUZMAN, and SULLIVAN.

OPINION

KENT C. SULLIVAN, Justice.

This appeal arises from a suit to modify conservatorship of a minor child. Appellant, Dawn Marie Robertson Simmons ("Dawn"), is the mother of thirteen-year-old A.L.E.; appellee, Gregory Chase Edwards ("Chase"), is the child's father. In three issues, Dawn appeals the trial court's March 2, 2007 order awarding Chase the right to establish their daughter's primary residence, and requiring Dawn to provide a "negative" drug and alcohol test to Chase, as a pre-condition to her exercise of unsupervised possession of A.L.E. We affirm.

BACKGROUND

During the early 1990s, Dawn and Chase had a tumultuous relationship that was later described as having been "fraught with drugs." In fact, drug use was apparently persistent throughout the unmarried couple's four-year courtship. Dawn had a brief period of sobriety during her pregnancy with their daughter, A.L.E., who was born in 1995, but she later resumed the use of drugs and alcohol.

The couple's relationship ended shortly after the birth of A.L.E., who thereafter lived with Dawn. Chase, who has been sober since March 1999, expressed the desire to remain involved in his daughter's life. In February 2001, the parties reached a custody agreement in which they would be appointed as A.L.E.'s joint managing conservators. Dawn was given the right to designate the child's primary residence, while Chase was granted a standard possession order governing his visitation with his daughter. Their agreement was approved by the trial court on February 19, 2001.

In April 2006, however, Chase sought modification of the previous custody order by filing a petition in which he sought to be appointed as A.L.E.'s sole managing conservator. Chase further requested that Dawn be denied visitation with A.L.E. or, alternatively, that her periods of possession be supervised. In support of these requests, Chase alleged that Dawn was abusing drugs and alcohol, and was neglecting A.L.E., while in possession of the child.

The trial judge ordered both parents to submit to drug testing, psychological examination, and alcohol and drug evaluation. Dawn tested positive for cocaine on two separate occasions. After a two-day trial, the trial court granted Chase's request to modify the previous custody order. Both parents remained as A.L.E.'s joint managing conservators; however, the trial court modified its previous order giving Chase the right to determine the child's primary residence and taking that right from Dawn.

Dawn was given a standard possession order under which she could exercise unsupervised possession. However, she was ordered to submit for drug testing for a period of three years, and if she were to test positive for drugs or alcohol during that time, she could have only supervised visitation with the child.

Dawn timely brought this appeal to challenge, through three issues, the trial court's modification of the previous custody order and placement of conditions upon Dawn's right to exercise unsupervised possession of her daughter. Specifically, she contends that the trial court abused its discretion by (1) modifying the custody order absent proof of a substantial and material change in circumstances, and (2) entering an unconstitutional and unenforceable possession order that she contends deprives her of meaningful access to her child.

STANDARD OF REVIEW

Because a trial court has broad discretion to decide the best interest of a child in family law matters such as custody, visitation, and possession, we review a decision to modify conservatorship for a clear abuse of that discretion. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court abuses its discretion when it acts arbitrarily or unreasonably, or when it clearly fails to correctly analyze or apply the law. See In re D.S., 76 S.W.3d 512, 516 (Tex.App.-Houston [14th Dist.] 2002, no pet.).

We remain mindful that the trial judge is best able to observe and assess the witnesses' demeanor and credibility, and to sense the "forces, powers, and influences" that may not be apparent from merely reading the record on appeal. Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.-Dallas 2004, no pet.). Therefore, we defer to the trial court's resolution of underlying facts and to credibility determinations that may have affected its determination, and will not substitute our judgment for the trial court's. George v. Jeppeson, 238 S.W.3d 463, 468 (Tex.App.-Houston [1st Dist.] 2007, no pet.).

Legal and factual insufficiency challenges are not independent grounds for asserting error in custody determinations, but are relevant factors in assessing whether the trial court abused its discretion. Niskar, 136 S.W.3d at 753; D.S., 76 S.W.3d at 516. An abuse of discretion does not occur if some evidence of a substantive and probative character exists to support the trial court's decision. Bates v. Tesar, 81 S.W.3d 411, 424-25 (Tex.App.-El Paso 2002, no pet.). We consider only the evidence most favorable to the trial court's ruling, and will uphold its judgment on any legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990); Niskar, 136 S.W.3d at 753-54.

MODIFICATION OF PREVIOUS CONSERVATORSHIP ORDER

In an effort to ensure stability and continuity for children, Texas law has imposed "significant hurdles" before a conservatorship order may be modified. See Bates, 81 S.W.3d at 426; Jenkins v. Jenkins, 16 S.W.3d 473, 478 (Tex.App.-El Paso 2000, no pet.). Specifically, a trial court may modify a conservatorship order if modification would be in the child's best interest and "the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed" since the previous order. Tex. Fam.Code Ann. § 156.101 (Vernon 2008). As a threshold determination, then, the moving party must show a material and substantial change in circumstances; otherwise, the petition must be denied. See Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex.App.-Austin 2006, pet. denied).

In her first issue, Dawn challenges the trial court's express finding of a material and substantial change in circumstances since the previous custody order.¹ She acknowledges that the trial judge was presented with evidence of her recent drug and alcohol abuse. However, she notes that she also had "substance abuse issues" at the time of the 2001 custody order. She contends, then, that modification was inappropriate because her circumstances have not significantly and materially changed in the intervening years. But modification is available if the child's circumstances have materially and substantially changed, even if the conservator's have not. See Tex. Fam.Code Ann. § 156.101(1). Here, Chase produced evidence that, since 2001, A.L.E.'s circumstances have materially and substantially changed as a product of Dawn's substance abuse.²

In deciding whether a material and substantial change of circumstances has occurred, a trial court is not confined to rigid or definite guidelines. See Zeifman, 212 S.W.3d at 593; In re Z.B.P., 109 S.W.3d 772, 779 (Tex.App.-Fort Worth 2003, no pet.). Instead, the court's determination is fact-specific and must be made according to the circumstances as they arise. See Zeifman, 212 S.W.3d at 593; Wright v. Wright, 610 S.W.2d 553, 555 (Tex.Civ.App.-Houston [1st Dist.] 1980, no writ). A non-comprehensive list of material changes, as described by other courts, can include (1) marriage of one of the parties, (2) poisoning of the child's mind by one of the parties, (3) change in the home surroundings, (4) mistreatment of the child by a parent or step-parent, or (5) a parent's becoming an improper person to exercise custody. See In re Marriage of Chandler, 914 S.W.2d 252, 254 (Tex.App.-Amarillo 1996, no writ); Wright, 610 S.W.2d at 555.

As an initial matter, Dawn contends that Chase did not establish the conditions that existed when the 2001 custody order was entered; thus, she concludes that Chase could not, and did not, demonstrate how those conditions changed.³ See Zeifman, 212 S.W.3d at 589 ("To prove that a material change in circumstances has occurred, the petitioner must demonstrate what conditions existed at the time of the entry of the prior order as compared to the circumstances existing at the time of the hearing on the motion to modify."). However, the law does not prescribe any particular method for a showing of changed circumstances, which may be established by circumstantial evidence. See Wright, 610 S.W.2d at 554-55; T.A.B. v. W.L.B., 598 S.W.2d 936, 939 (Tex.Civ. App.-El Paso), writ ref'd n.r.e., 606 S.W.2d 695 (Tex.1980); Brown v. Brown, 500 S.W.2d 210, 216 (Tex.Civ.App.-Texarkana 1973, no writ). Even in the absence of direct evidence of the conditions in 2001, the record clearly shows that the facts that are relied upon as showing a material change in circumstances, which are discussed below, occurred after the earlier custody order. See Brown, 500 S.W.2d at 216; In re J.A.R., No. 2-04-123-CV, 2005 WL 2839107, at *8 (Tex.App.-Fort Worth Oct.27, 2005, no pet.) (mem.op.).

After reviewing the record, we conclude that the trial court did not abuse its discretion by finding a material and substantial change in circumstances since the entry of the previous custody order in February 2001. The record is replete with evidence that Dawn's substance-abuse problems have significantly, and negatively, affected A.L.E. since she came to reside with her mother.

In late 2001, A.L.E. was diagnosed as suffering from panic attacks, and was treated with anti-depressant medication. After Dawn decided to wean her daughter from the...