                                     In The
                                Court of Appeals
                       Seventh District of Texas at Amarillo
                                ________________________

                                     No. 07-13-00070-CV
                                ________________________

                            MARIA LUISA GOMEZ, APPELLANT

                                                V.

                         HUGO ARELLANOS RANGEL, APPELLEE



                            On Appeal from the 46th District Court
                                    Wilbarger County, Texas
                  Trial Court No. 25,397; Honorable Dan Mike Bird, Presiding


                                       September 8, 2014

                               MEMORANDUM OPINION
                     Before CAMPBELL and HANCOCK and PIRTLE, JJ.


       Appellant, Maria Luisa Gomez, brings this appeal complaining of the trial court’s

Order in Suit to Modify Parent-Child Relationship. By her original and reply brief, she

asserts the trial court erred in (1) failing to terminate Appellee’s, Hugo Arellanos

Rangel’s, parental rights to their son, T.H.A.G.,1 (2) modifying Hugo’s possession and


       1
         To protect the child's privacy, we refer to him by his initials. See TEX. FAM. CODE ANN. §
109.002(d) (West 2014). See also TEX. R. APP. P. 9.8(b).
access absent a material and substantial change and (3) modifying the prior order by

imposing a geographical restriction in the absence of a pleading requesting such relief.

We reform the trial court’s order, and as reformed, affirm.


                                             BACKGROUND


       In 2000, in Mexico, Hugo began a romantic relationship with Maria’s older sister.

A son was born to them in 2003. While that relationship was ongoing, unbeknownst to

Maria’s sister, Hugo and Maria became romantically involved and in 2008, they too had

a son, T.H.A.G., the child the subject of this appeal. In late 2008 or early 2009, Maria,

T.H.A.G., her sister and her sister’s son, left Mexico for the United States to flee from

what they alleged was Hugo’s pattern of domestic violence. Hugo came to the United

States to find his children. He denied being violent and testified that Maria and her

sister conspired to take his children to the United States out of revenge for the love

triangle. After moving to the United States, Maria’s sister eventually married and has a

family. Maria and T.H.A.G. live with them in Vernon.2


       Hugo is an educated bookkeeper and owned a factory in Mexico. He liquidated

his business to come to the United States and locate his sons. He settled in Wichita

Falls and found work as a handyman. With assistance from the Federal Bureau of

Investigation, he located his children in 2009.


       In 2010, the trial court entered an Order in Suit Affecting the Parent-Child

Relationship appointing Maria as sole managing conservator of T.H.A.G. Even though



       2
           Hugo has three other children he visits, one in Mexico and two in Canada.

                                                     2
the order was rendered by default, Hugo was named possessory conservator, albeit

without visitation rights.


       In April 2011, Hugo filed a petition to modify the 2010 order alleging a material

and substantial change in circumstances.         He requested reasonable access and

visitation with his son. Maria filed a counter-petition in August 2012 seeking termination

of Hugo’s parental rights on the grounds he had (1) knowingly placed or knowingly

allowed the child to remain in conditions or surroundings that endangered his physical

or emotional well-being; (2) engaged in conduct or knowingly placed the child with

persons who engaged in conduct that endangered his physical or emotional well-being,

and (3) failed to support the child in accordance with his ability during a period of one

year ending within six months of the date of the filing of the petition. See TEX. FAM.

CODE ANN. § 161.001(1)(D), (E), and (F) (West 2014).


       At the same time, Maria’s older sister also filed suit to terminate Hugo’s parental

rights to his older son, T.H.A.G.’s half-brother. The cases were consolidated and tried

to the bench. The trial court terminated Hugo’s parental rights to his older son but found

it was not in T.H.A.G.’s best interest to terminate the parent-child relationship. Hugo

was granted supervised visitation with T.H.A.G. and was ordered to pay monthly child

support in the sum of $184 per month. The order also modified Maria’s exclusive right

to designate her son’s primary residence by limiting it to Wilbarger County, Texas. The

trial court filed Findings of Fact and Conclusions of Law. Conclusion of Law 16 provides

“[i]t is not in the best interest of the child to terminate the parental rights of [Hugo] to

[T.H.A.G.].” Conclusion of Law 19 provides “[i]t is in the best interest of the child that



                                             3
[Hugo] have access to the child” and Conclusion of Law 20 names Hugo as a

possessory conservator.


            ISSUE ONE—DENIAL OF TERMINATION OF PARENT-CHILD RELATIONSHIP


       By her first issue, Maria complains the trial court erred in denying her petition to

terminate Hugo’s parental rights to T.H.A.G.. The natural right existing between parents

and their children is of constitutional dimension. See Santosky v. Kramer, 455 U.S.

745, 758-59 (1982).      See also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985).

Consequently, termination proceedings are strictly construed in favor of the parent. In

re E.R., 385 S.W.3d 552, 563 (Tex. 2012).


       The Family Code permits a trial court to terminate parental rights if the party

seeking termination proves by clear and convincing evidence that the parent committed

an action prohibited under section 161.001(1) and termination is in the child’s best

interest.   See TEX. FAM. CODE ANN. § 161.001 (West 2014); Holley v. Adams, 544

S.W.2d 367, 370 (Tex. 1976). Though the same evidence may be probative of both

issues, both elements must be established and proof of one element does not relieve

the petitioner of the burden of proving the other. See In re C.H., 89 S.W.3d at 28;

Holley, 544 S.W.2d at 370.


       In deciding whether to terminate a parent-child relationship, the trial court is given

wide latitude in determining the best interest of a minor child. See Gillespie v. Gillespie,

644 S.W.2d 449, 451 (Tex. 1982). There is a strong presumption that the best interest

of a child is served by maintaining the relationship between a child and the natural

parent. In re D.T., 58 S.W.3d 625, 641 (Tex. App.—Fort Worth 2000, pet. denied). In

                                             4
Holley, the Supreme Court considered the following non-exclusive factors: (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, (6) the plans for the child by these individuals, (7) the stability of the

home, (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.         These factors are not

exhaustive; some listed factors may be inapplicable to some cases, while other factors

not on the list may also be considered when appropriate. In re C.H., 89 S.W.3d at 27.

When, as here, the trial court denies a petition to terminate the parent-child relationship,

the court shall render any order that is in the best interest of the child. TEX. FAM. CODE

ANN. § 161.205 (West 2014).


       In the companion case, the trial court terminated Hugo’s parental rights to

T.H.A.G.’s half-brother. In its conclusions of law, the trial court justified termination of

Hugo’s parental rights to that child because Maria’s sister is married and has a stable

home and the child has a relationship with his step-father who has plans to adopt him.

To the contrary, the trial court made a finding that Maria is not married nor in a stable

relationship. Maria argues the trial court ignored the Holley factors and relied solely on

whether an adoption “is on the horizon” by a step-parent to determine her son’s best

interest.


       A counselor testified at the hearing that Hugo’s older son was brought to her for

treatment of anxiety and stress. During their seven sessions, he recounted acts of

                                             5
family violence perpetrated by his father against his mother. The counselor testified the

memories were very authentic and the child was honest. She opined it was in his best

interest to terminate the parent-child relationship.


       On the other hand, the counselor had only two visits with T.H.A.G. when he was

four years old. She described him as a “sweet little boy who was silent.” She found his

lack of communication disturbing, and her opinion regarding any contact between him

and his father was the same as for the older brother. However, when questioned by the

court on whether the same situation existed as with the older brother, she testified

“there’s no way for me to know other than the fact that they are brothers.”


       At the time of the hearing, Maria and T.H.A.G. were living with her sister and her

sister’s husband and other children. She testified that when she lived in Mexico, Hugo

was very abusive to her and her son. She was locked away for years by him, and he

constantly threatened her family. Other than the testimony of Maria and her sister,

there was no other evidence to support the allegations of years of abuse.


       Hugo testified that Maria’s allegations, as well as her sister’s, were all lies. He

acknowledged both are good mothers but believed Maria’s older sister sought revenge

because he left her for Maria. He adamantly denied being violent or ever threatening

Maria’s family. Two character witnesses testified to his good character and non-violent

nature.


       At the close of the testimony, the trial court cleared the courtroom and

interviewed Hugo’s older son with only the court reporter present. The child recalled

instances of family violence between his parents when they lived in Mexico and

                                              6
expressed to the court that he did not wish to visit or see his father. The child was living

in a stable home and referred to his stepfather as “dad” during the interview.


       The trial court acknowledged the difficulty in terminating the parental rights of a

parent as to one child and not another. Regardless of the trial court’s reliance on family

violence issues as a ground to justify termination of parental rights to Hugo’s older son,

and whether the same grounds existed as to T.H.A.G., the court applied the best

interest prong of section 161.001 of the Family Code differently to each child. The trial

court concluded there was no basis for the counselor’s opinion that termination of the

parent-child relationship between Hugo and T.H.A.G. was in the child’s best interest.

The trial court believed termination at that point was premature without affording the

parent-child relationship an opportunity to develop.


       Not all of the Holley factors apply in this case. T.H.A.G.’s desires are not known

and programs available to assist the parents are not a factor. However, the trial court

did consider the child’s emotional needs now and in the future, any potential danger

now and in the future, future plans for the child and the stability of the child’s home. The

trial court’s focus was not limited to whether an adoption was pending as Maria

suggests.    Without clear and convincing evidence to support a best interest

determination, a trial court errs if it terminates the parent-child relationship. See TEX.

FAM. CODE ANN. § 161.001(1) and (2) (West 2014). We defer to the factfinder in matters

of credibility and demeanor, and particularly so in family law matters. Van Heerden v.

Van Heerden, 321 S.W.3d 869, 874 (Tex. App.—Houston [1st Dist.] 2010, no pet.).

Accordingly, we conclude the trial court did not err in denying Maria’s petition to

terminate the parent-child relationship between Hugo and T.H.A.G and in finding that it

                                             7
is in T.H.A.G.’s best interest to have supervised visitation with his father. Issue one is

overruled.


                        ISSUE TWO—MODIFICATION OF POSSESSION AND ACCESS


           By issue two, Maria contends the trial court abused its discretion in modifying

Hugo’s possession and access to their son without a material and substantial change.

We disagree.3


           We review a trial court’s modification order in a family law case for abuse of

discretion. In re M.S.F. and M.S.F., 383 S.W.3d 712, 715 (Tex. App.—Amarillo 2012,

no pet.). Absent a clear abuse of discretion, the trial court’s order modifying the prior

order will not be disturbed on appeal. Id. A trial court abuses its discretion when it acts

arbitrarily or unreasonably or when it clearly fails to correctly analyze or apply the law.

In re D.S., 76 S.W.3d 512, 516 (Tex. App.—Houston [14th Dist.] 2002, no pet.).


           Section 156.101 of the Family Code provides for modification of an order for,

among other things, possession of or access to a child if modification would be in the

child’s best interest.          TEX. FAM. CODE ANN. § 156.101(a).             The relevant ground for

modification in this appeal is whether there has been a material or substantial change in

the circumstances of the child, a conservator or other party affected by the prior order.

See id. The threshold inquiry in a modification suit is whether the movant has met the

burden of demonstrating a material and substantial change by a preponderance of the




           3
               Hugo asserts this issue was waived; however, we review Maria’s contention in the interest of
justice.

                                                       8
evidence. See Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet.

denied); In re T.M.P., 417 S.W.3d 557, 563 (Tex. App.—El Paso 2013, no pet.).


       In considering whether a change of circumstances has occurred, the trial court

compares the evidence that existed at the time of the entry of the prior order with the

evidence that exists at the time of the hearing on the petition to modify. In re W.C.B.,

337 S.W.3d 510, 514 (Tex. App.—Dallas 2011, no pet.). In deciding whether a material

and substantial change of circumstances has occurred, a trial court is not confined to

rigid or definite guidelines.      Zeifman, 212 S.W.3d at 593.        Instead, the court’s

determination is fact-specific and must be made according to the circumstances as they

arise. Id. Some material and substantial changes considered by other courts 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).


       During the hearing, Maria moved for directed verdict on the modification issue

arguing that none of the grounds in section 156.101(a) of the Family Code had been

established to justify modification of the prior order. The motion was overruled. Here,

Maria relies on an interrogatory in which Hugo was asked to identify the material and

substantial change in circumstances to which he replied “of no consequence except for

[Hugo] will clarify.” She also asserts Hugo failed to prove a material and substantial

change during his case-in-chief.




                                             9
       Hugo admits his answer to the interrogatory in question was “vague, unclear and

limited” but he offered to clarify his answer. The issues before this Court are relatively

uncomplicated family law issues.       However, they become complicated due to the

underlying companion case, which is not before this Court.


       The original order that is the basis of the underlying modification suit was

rendered by default following substituted service. Hugo had no visitation rights under

that order.   He liquidated his business and traveled to the United States to locate

T.H.A.G. He testified he loved him very much and wanted to establish a relationship

with him. Comparing the situation that existed at the time of the entry of the first order

with the conditions that existed at the time of the modification hearing, we conclude

Hugo established by a preponderance of the evidence that material and substantial

changes had occurred and the trial court did not abuse its discretion in modifying the

prior order. Issue two is overruled.


                        ISSUE THREE—GEOGRAPHIC RESTRICTION


       By issue three, Maria asserts the trial court abused its discretion by including a

geographical restriction absent a pleading requesting such relief.     Hugo asserts the

issue was not preserved for review. We disagree with Hugo but agree with Maria that

the geographic restriction in the modification order was erroneously included.


       We first address Hugo’s waiver argument. He argues Maria failed to move to

dismiss his modification suit or seek compliance with section 156.102 of the Texas

Family Code for failing to file an affidavit with his pleading seeking modification of the

designation of the person having the exclusive right to designate the primary residence

                                           10
of the child when suit is filed within one year of a prior order. TEX. FAM. CODE ANN. §

156.102(a) (West 2014).4            Hugo did not file an affidavit with his Petition to Modify

Parent-Child Relationship.           However, he was not required to because he sought

modification under section 156.101 for modification of possession and access and not

to modify the designation of the person with the exclusive right to designate T.H.A.G.’s

primary residence. By his petition, he requested “reasonable access and possession of

his child as the current order does not provide for such.” He was seeking visitation with

his son, not managing conservatorship.


         During redirect examination, Hugo was asked if he was requesting the court to

restrict the residence of the mother so his child would not be taken out of state or out of

country. Maria’s counsel objected on the ground that a geographical restriction had not

been raised in the case, and Hugo had not given any notice he was seeking a

geographical restriction. The objection was overruled, and Hugo answered affirmatively

on wanting to restrict the mother’s residence so his child would not be taken from him

again.


         Rule 33.1(a) of the Texas Rules of Appellate Procedure requires a request,

objection or motion stating sufficiently specific grounds of the complaint and a ruling on

the request, objection or motion to preserve the complaint for appellate review. Maria

objected to questioning on restricting her residency because she had no notice of the

issue, and the trial court overruled the objection. That is sufficient to preserve the issue

for consideration.
         4
          The statute provides “[i]f a 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 earlier
of the date of the rendition of the order . . . the person filing the suit shall execute and attach an affidavit
as provided in Subsection (b).”

                                                      11
       Pleadings must give reasonable notice of the claims asserted.           Flowers v.

Flowers, 407 S.W.3d 452, 457 (Tex. App.—Houston [14th Dist.] 2013, no pet.). The

petition must give fair and adequate notice of claims being asserted, and if an appellate

court cannot reasonably infer that the petition contains a given claim, then it must

conclude the petition does not contain the claim. Id. at 458. Hugo did not plead for a

geographical restriction. The issue was not tried by consent. Thus, the court’s order

does not conform to the pleadings, see TEX. R. CIV. P. 301, and the trial court abused its

discretion in imposing a geographical restriction that Maria shall have the exclusive right

to designate T.H.A.G.’s primary residence “within Wilbarger County, Texas.”          Issue

three is sustained.


                                        CONCLUSION


       Having sustained issue three, we reform the Order in Suit to Modify Parent-Child

Relationship to delete “within Wilbarger County, Texas” on page 2 of the order. As

reformed, the trial court’s order is affirmed.


                                                      Patrick A. Pirtle
                                                          Justice




                                                 12
