AFFIRMED; Opinion Filed June 26, 2014.




                                         S    In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                      No. 05-13-01263-CV


                           IN THE INTEREST OF O. G., A CHILD


                      On Appeal from the 330th Judicial District Court
                                   Dallas County, Texas
                             Trial Court Cause No. 11-07867

                             MEMORANDUM OPINION
                           Before Justices Fillmore, Evans, and Lewis
                                  Opinion by Justice Fillmore

       Appellant Stevy Greene appeals from orders entered in a suit affecting the parent-child

relationship (SAPCR). In five issues, Greene contends (1) there is no evidence or insufficient

evidence of a change of circumstances from the date of a prior order to support a change of

conservatorship; (2) the trial court abused its discretion by failing to report child abuse; (3) the

trial court abused its discretion by modifying a prior order in the SAPCR; (4) the trial court

abused its discretion by eliciting testimony of witnesses, in making objections to evidence at

trial, and by interlineating an emergency motion for a writ of attachment; and (5) the trial court

abused its discretion by issuing an emergency ex parte writ of attachment. We affirm the trial

court’s order.
                                    Procedural Background

       On April 29, 2011, Greene, father of O.G., filed his original petition in a SAPCR. On

June 23, 2011, the trial court signed a final order in the SAPCR, appointing Greene and Elena

Vernon, mother of O.G., as the joint managing conservators of O.G., with Greene having the

exclusive right to designate the primary residence of O.G. within Dallas County, Texas, or any

county contiguous to Dallas County. On September 19, 2011, Greene filed a petition to modify

the June 23, 2011 order in the SAPCR. Greene alleged the circumstances of O.G., a conservator,

or other party affected by the June 23, 2011 order to be modified had materially and substantially

changed since rendition of the order. On July 23, 2012, Vernon filed a motion to modify the

order in the SAPCR, requesting that the trial court appoint her the sole managing conservator of

O.G., remove a geographic restriction on O.G.’s primary residence, and change parental rights

and duties and possession of and access to O.G. Vernon alleged the circumstances of the

“children [sic], a conservator, or other party affected by the order or orders to be modified [had]

materially and substantially changed” since the June 23, 2011 order. On September 24, 2012,

Greene filed his original answer to Vernon’s motion to modify and counter-petition to Vernon’s

motion to modify. Greene alleged the “circumstances of the child, a conservator, or other party

affected by the order to be modified [had] materially and substantially changed since the date of

rendition of the order to be modified.”

       After hearings, an associate judge signed a November 26, 2012 temporary SAPCR report.

Vernon filed her notice of de novo appeal on November 26, 2012. Vernon also filed a motion

requesting that the trial court judge confer in chambers with O.G. in order to gather information




                                               –2–
relevant to the best interest of O.G. The trial court granted that motion and conducted an

interview in chambers with seven-year-old O.G. 1

          A bench trial of the motions to modify the order in the SAPCR was held on May 16,

2013. On May 17, 2013, the trial court rendered its order on the motions to modify (the May 17,

2013 modification order). In that order, the trial court found the material allegations in Vernon’s

motion to modify were true and that the requested modification was in the best interest of O.G.

The trial court ordered Greene and Vernon removed as joint managing conservators of O.G.,

Vernon was appointed sole managing conservator of O.G., Greene was appointed possessory

conservator of O.G., and Vernon was granted the right to designate O.G.’s primary residence.

Greene was granted visitation with O.G. one weekend per month in the county where Vernon

resides. On May 17, 2013, Vernon filed an emergency motion requesting a writ of attachment of

O.G. In its May 17, 2013 order for issuance of a writ of attachment of O.G. (the order for writ of

attachment), the trial court found, on the basis of the sworn statement in the “petition” and the

evidence and argument of counsel, it was necessary and proper to immediately issue the writ of

attachment.

          The trial court denied Greene’s motion for new trial. Greene filed this appeal of the May

17, 2013 modification order and the order for writ of attachment.

                                                 Sufficiency of the Evidence

          In his first issue, Greene asserts there is no evidence or insufficient evidence of a change

of circumstances from the June 23, 2011 order to support a change of conservatorship or naming

Vernon the sole managing conservator.




     1
        The record on appeal does not contain a record of the trial court’s interview of O.G. A docket entry in the record indicates O.G. was
interviewed on February 26, 2013 in chambers.



                                                                   –3–
                                        Standard of Review

       In family law cases, challenges to the sufficiency of the evidence do not constitute

independent grounds for asserting error, but are relevant factors in determining whether the trial

court abused its discretion. Moore v. Moore, 383 S.W.3d 190, 198 (Tex. App.—Dallas 2012,

pet. denied). To determine whether the trial court abused its discretion because the evidence is

legally or factually insufficient to support the trial court’s decision, we consider whether the trial

court (1) had sufficient evidence upon which to exercise its discretion, and (2) erred in its

application of that discretion. Moroch v. Collins, 174 S.W.3d 849, 857 (Tex. App.—Dallas

2005, pet. denied). We conduct the applicable sufficiency review when considering the first

prong of the test. Id. We then determine whether, based on the elicited evidence, the trial court

made a reasonable decision. Id. A trial court does not abuse its discretion if there is some

evidence of a substantive and probative character to support the decision. Id.

       In determining whether there is legally sufficient evidence to support a finding, we

examine the record and credit evidence favorable to the finding if a reasonable fact finder could

and disregard evidence contrary to the finding unless a reasonable fact finder could not. City of

Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005). Evidence is legally insufficient only when

(1) the record discloses a complete absence of evidence of a vital fact; (2) the court is barred by

rules of law or evidence from giving weight to the only evidence offered to prove a vital fact; (3)

the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

established conclusively the opposite of a vital fact. Jelinek v. Casas, 328 S.W.3d 526, 532

(Tex. 2010); Gonzalez v. Gonzalez, 331 S.W.3d 864, 867 (Tex. App.—Dallas 2011, no pet.). In

a factual sufficiency review, we consider the entire record and will set aside the finding only if it

is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust.

Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986) (per curiam); Cameron v. Cameron, 158 S.W.3d

                                                 –4–
680, 683 (Tex. App.—Dallas 2005, pet. denied). When, as here, the trial court does not file

findings of fact and conclusions of law, it is implied that the trial court made all findings

necessary to support the trial court’s order. In re A.L.S., 338 S.W.3d 59, 65 (Tex. App.—

Houston [14th Dist.] 2011, pet. denied).

       A trial court’s order modifying a joint managing conservatorship will not be disturbed on

appeal unless the complaining party can show a clear abuse of discretion. Long v. Long, 144

S.W.3d 64, 67 (Tex. App.—El Paso 2004, no pet.). The test for abuse of discretion is whether

the trial court acted in an arbitrary or unreasonable manner, or whether it acted without reference

to any guiding principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42

(Tex. 1985). The question of conservatorship of a child is left to the trial court’s discretion

because it “is in the best position to observe the demeanor and personalities of the witnesses and

can ‘feel the forces, powers, and influences that cannot be discerned by merely reading the

record.’” Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.—Dallas 1981, no writ)

(quoting Thompson v. Haney, 191 S.W.2d 491, 493 (Tex. Civ. App.—Amarillo 1945, no writ));

see also Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex. 1966) (change of conditions being

shown, question becomes whether change of custody is warranted, and this is question within

discretion of trial court whose action will not be disturbed in absence of an abuse of discretion).

                                              Analysis

       Both Greene and Vernon filed pleadings seeking to modify the trial court’s June 23, 2011

order in the SAPCR. Greene alleged in his September 19, 2011 petition to modify the parent-

child relationship that the “circumstances of the child, conservator, or other party affected by the

order to be modified have materially and substantially changed since the date of rendition of the

order to be modified.” Vernon alleged in her July 23, 2012 motion to modify the parent-child

relationship that the “circumstances of the children [sic], a conservator, or other party affected by

                                                –5–
the order or orders to be modified have materially and substantially changed since the judge

announced the prior order or orders.” Greene also alleged in his September 24, 2012 counter-

petition to modify the parent-child relationship that the “circumstances of the child, conservator,

or other party affected by the order to be modified have materially and substantially changed

since the date of rendition of the order to be modified.”

       Greene’s and Vernon’s modification claims required proof that the circumstances of the

child, a conservator, or other party affected by the existing conservatorship order have materially

and substantially changed since rendition of the existing order. See In re L.C.L., 396 S.W.3d

712, 718 (Tex. App.—Dallas 2013, no pet.). Greene’s allegations of changed circumstances

constitute a judicial admission of that essential element of Vernon’s claim for modification of the

parent-child relationship. See id. at 718–19 (mother’s allegation of changed circumstances

constituted judicial admission of same essential element of father’s claim for modification of

parent-child relationship, even though mother did not request the same relief); In re A.E.A., 406

S.W.3d 404, 410 (Tex. App.—Fort Worth 2013, no pet.) (one party’s allegation of changed

circumstances of the parties constituted judicial admission of the common element of changed

circumstances of the parties in other party’s pleading).

       “Admissions in trial pleadings are judicial admissions in the case in which the pleadings

are filed; the facts judicially admitted require no proof and preclude the introduction of evidence

to the contrary.” In re A.E.A., 406 S.W.3d at 410. “Thus, a ‘judicial admission is conclusive

upon the party making it, . . . relieves the opposing party’s burden of proving the admitted fact,

and bars the admitting part[y] from disputing it.’” Id. (quoting Hennigan v. I.P. Petroleum Co.,

858 S.W.2d 371, 372 (Tex. 1993)). Having judicially admitted a material and substantial change

in the circumstances of O.G., himself, or Vernon had occurred since rendition of the prior order,




                                                –6–
Greene cannot now challenge the sufficiency of the evidence to support the change of

conservatorship on this basis.

       The family code allows a trial court to modify an order concerning conservatorship “if

modification would be in the best interest of the child” and “the circumstances of the child, a

conservator, or other party affected by the order have materially and substantially changed since

. . . the date of the rendition of the order. . . .” TEX. FAM. CODE ANN. § 156.101 (West 2014).

“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.” Id. §

153.002 (West 2014). Trial courts have wide latitude to determine what is in a minor child’s

best interest. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

       The trial court heard the testimony of Greene; Vernon; Enriquetta Brandy Vernon

(Enriquetta), Vernon’s twenty-nine-year-old daughter; and Christina Tallman (Tallman),

Vernon’s twenty-five-year-old daughter. The trial court also interviewed O.G. in chambers.

Greene testified O.G. lived with him for twenty-one months before the May 2013 bench trial.

Greene testified he knew Vernon felt threatened by him. The trial court heard testimony that

Vernon, Enriquetta, and Tallman were afraid of Greene and that he threatened them with his

aggressive and vulgar language and attitude. Greene contends this testimony does not reflect a

change in circumstances since the June 23, 2011 order. However, the trial court specifically

heard testimony from Tallman that days before the May 17, 2013 bench trial, O.G. told her he

cannot cry or be sad in front of Greene because Greene becomes angry with him. Tallman

testified O.G. expressed a fearful relationship with Greene and that O.G. had said five or six

times that he does not feel comfortable around Greene. At the close of the bench trial, the trial

judge stated Greene exposed children to psychological harm and is abusive. The trial judge

stated that in her interview of O.G., he made statements to her consistent with testimony at the

                                               –7–
trial, and that the statements were not statements a seven-year-old child would make if they had

not happened. The trial judge stated that “had [she] had the forum” on the day she interviewed

O.G., she would have “moved him immediately, because that’s how imminent it felt.” The trial

judge stated that O.G. fears Greene, and “he fears you because he should.” The trial judge stated

that, whether or not Greene admitted he has anger issues, “O.G. knows that you do. And the fact

that you aren’t willing or that you can’t see that there’s some problem is really chilling.”

        After reviewing the record, we conclude there was evidence of mistreatment of O.G. by

Greene and that Greene had become an improper person to exercise sole or managing

conservatorship of O.G. Based on review of the record, we conclude the trial court did not abuse

its discretion by determining that a change of conservatorship was in the child’s best interest.

See Gillespie, 644 S.W.2d at 451. We resolve Greene’s first issue against him.

                                     Failing to Report Abuse

       In his second issue, Greene contends the trial court abused its discretion by violating

section 261.101 of the family code by failing to report abuse it felt “imminent” on the date O.G.

was interviewed in chambers by the trial court. Section 261.101(a) provides that “a person

having cause to believe that a child’s physical or mental health or welfare has been adversely

affected by abuse or neglect by any person shall immediately make a report as provided by this

subchapter.” TEX. FAM. CODE ANN. § 261.101(a) (West 2014). The report must be made to the

Department of Family and Protective Services or a local or state law enforcement agency, or

under certain circumstances, to other government agencies. Id. § 261.103 (West 2014). A

person who has cause to believe that a child may be subject to abuse or neglect and knowingly

fails to report the situation to an appropriate authority commits a criminal offense, generally a

class A misdemeanor. Id. § 261.109 (West 2014).




                                                –8–
          Greene’s briefing regarding the trial court’s purported violation of section 261.101 of the

family code consists of two sentences: “The Tex. Fam. Code 261.101 and 261.102 requires [sic]

professionals to report suspected abuse within 48 hours. The statute is explicit, and provides that

the report must be made to Child Protective Services and law enforcement.” Greene wholly fails

to provide substantive analysis of what redress he seeks for the trial court’s purported abuse of

discretion in failing to report “imminent” abuse of O.G. by Greene or how this purported abuse

of discretion entitles Greene to redress for the period in which O.G. would have been subject to

abuse by Greene — from the February 2013 in-chambers interview of O.G. to May 17, 2013 on

which Vernon was granted sole managing conservatorship of O.G. See Perry v. S.N., 973

S.W.2d 301, 308 (Tex. 1998) (holding it was not appropriate to interpret section 261.109(a) as

establishing a duty and standard of conduct in tort).

          Our appellate rules require an appellant’s brief to contain a clear and concise argument

for the contentions made with appropriate citations to authorities and the record. See TEX. R.

APP. P. 38.1(h); Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.). Failure

to cite applicable authority or provide substantive analysis waives an issue on appeal. Huey, 200

S.W.3d at 854; see also Kang v. Hyundai Corp. (U.S.A.), 992 S.W.2d 499, 503 (Tex. App.—

Dallas 1999, no pet.). Because Greene offers no legal analysis and fails to cite any authority to

support his contention the trial court abused its discretion by failing to report child abuse by

Greene under section 261.101 of the family code, he presents nothing for us to review with

regard to this purported abuse of discretion by the trial court. 2 We resolve Greene’s second issue

against him.




     2
       To the extent Greene’s second issue could be construed as an argument that no report of suspected abuse or neglect of O.G. by the trial
court supports Greene’s assertion that the trial court abused its discretion in modifying conservatorship, we have concluded with regard to
Greene’s first issue that the trial court did not abuse its discretion in modifying conservatorship.



                                                                    –9–
                              Provisions of the Order Modifying Conservatorship

          In his third issue, Greene argues the trial court abused its discretion by allowing Vernon

to “remove [O.G.] to California,” because the SAPCR order “limits [Greene]’s access and is

unenforceable,” and by “setting [Greene]’s child support without consideration of Texas Family

Code [section] 156.103.”

          Without citing authority to support his argument, Greene argues on appeal that the trial

court’s order modifying conservatorship is unenforceable because it fails to specify which

weekend Greene is to have access to and possession of O.G. and “has no common language”

requiring Vernon to surrender the child to Greene at the commencement of his possession of

O.G. Greene also complains on appeal that the order fails to provide or order any “electronic

communication” with O.G. and does not order Vernon to provide her address or phone number.

          At the bench trial, Vernon stated to the trial court that, following the modification of

conservatorship, she would be living with O.G. in California “for now.” Greene argues on

appeal that the trial court failed to consider the expense he would incur in traveling to California

for visits with O.G. in ordering child support, 3 and the trial court abused its discretion in not

considering section 156.103 of the family code in setting child support. See TEX. FAM. CODE

ANN. § 156.103(a) (West 2014) (if change of residence results in increased expenses for party

having possession of or access to child, court may render appropriate orders to allocate those

increased expenses on fair and equitable basis, taking into account cause of increased expenses

and best interest of child).

          To preserve most issues for appellate review, a party must bring the issue to the trial

court’s attention by timely request, objection, or motion. See TEX. R. APP. P. 33.1(a). “If the

     3
        The trial court based its order for child support upon Greene’s annual net income of $28,600. Greene asserts there is no evidence to
support this finding. However, Greene testified at the bench trial that his net income was $1,100 every two weeks, from which the trial court
calculated an annual net income of $28,600. A net income of $550 per week multiplied by fifty-two weeks in a calendar year equals an annual
net income of $28,600.



                                                                  –10–
matter is not presented to the trial court, the trial court has no opportunity to rule on the issue or

to correct its ruling if it is made in error.” In re R.J.P., 391 S.W.3d 677, 678 (Tex. App.—Dallas

2013, no pet.) (quoting In re Marriage of Lendman, 170 S.W.3d 894, 898 (Tex. —Texarkana

2005 no pet.)). We have reviewed the pleadings, including Greene’s First Amended Motion for

New Trial, and the record on appeal, and have concluded the complaints made with regard to this

issue on appeal were not presented to the trial court. Because Greene did not present the

complaints in this appellate issue to the trial court, he has not preserved this issue for appellate

review. See TEX. R. APP. P. 33.1(a); In re R.J.P., 391 S.W.3d at 678–79 (where appellant did not

raise complaint in trial court regarding amount of child support ordered and did not raise that

complaint or cite family code section in motion for new trial, appellant did not preserve issue for

appellate review); In re A.B.P., 291 S.W.3d 91, 99–100 (Tex. App.—Dallas 2009, no pet.)

(appellant did not preserve appellate argument that trial court erred when it awarded attorney’s

fees in nature of child support because he did not raise argument in trial court).

       We resolve Greene’s third issue against him.

                                     Conducting Bench Trial

       In his fourth issue, Greene asserts the trial court abused its discretion in the manner in

which it conducted the bench trial. In this issue, Greene contends the trial court abused its

discretion “by participating in the trial and acting as counsel for [Vernon] in eliciting extensive

testimony from witnesses on behalf of [Vernon], personally making objections to [Greene]’s

evidence, and interlineating [Vernon]’s Ex Parte Emergency Motion for Issuance of Writ of

Attachment.”

       With regard to his assertion the trial court made objections to his evidence, Greene cites

to a single statement that Greene’s question to a witness had been asked and answered previously

and an instruction by the trial court that Greene ask another question. With regard to his

                                                –11–
assertion the trial court abused its discretion by “interlineating” Vernon’s motion for issuance of

a writ of attachment, Greene does not describe how the interlineation was a purported abuse of

discretion by the trial court. 4 Our appellate rules require an appellant’s brief to contain a clear

and concise argument for the contentions made with appropriate citations to authorities and the

record. See TEX. R. APP. P. 38.1(h); Huey, 200 S.W.3d at 854. Failure to cite applicable

authority or provide substantive analysis waives an issue on appeal. Huey, 200 S.W.3d at 854;

see also Kang, 992 S.W.2d at 503. Because Greene offers no legal analysis and fails to cite any

authority to support these specific contentions, he presents nothing for us to review with regard

to these purported abuses of discretion by the trial court.

           With regard to Greene’s contention in this issue that the trial court acted improperly as an

advocate for Vernon by questioning Vernon’s daughters who Vernon called as witnesses at trial,

we review the trial court’s questioning of a witness under an abuse of discretion standard. See

Moreno v. Reliable Insulation, Inc., 217 S.W.3d 769, 772 (Tex. App.—Dallas 2007, no pet.);

Cason v. Taylor, 51 S.W.3d 397, 405 (Tex. App.—Waco 2001, no pet.); see also Born v. Va.

City Dance Hall & Saloon, 857 S.W.2d 951, 957 (Tex. App.—Houston [14th Dist.] 1993, writ

denied) (for purpose of eliciting evidence that has not otherwise been brought out, judge may put

competent and material questions to a witness, and “where anything has been omitted, it is

sometimes his duty to examine a witness”). Greene did not object to the trial court’s questioning

of the witnesses or to the questions posed by the trial judge to the witnesses. See TEX. R. APP. P.

33.1(a). Therefore, the testimony was before, and could be considered by, the trial court. See

Johnson v. Hawkins, 255 S.W.3d 394, 398 (Tex. App.—Dallas 2008, pet. denied). 5

     4
       To the paragraph of the emergency motion for writ of attachment stating “Movant applies for a Writ of Attachment of the person of O.G.
because the court awarded sole managing conservatorship of O.G. to Elena Vernon,” there is handwritten addition of “by virtue of a trial on the
merits on May 16, 2013.” We note that the handwritten “interlineation” is an accurate statement.
     5
        See also In re S.C.S., No. 05-06-01600-CV, 2008 WL 1973570, at *2 (Tex. App.—Dallas May 8, 2008, no pet.) (mem. op.) (appellant did
not direct appellate court to any place in the record where he made complaints to the trial court concerning section 152.311(a) of the family code).



                                                                      –12–
            We resolve Greene’s fourth issue against him.

                                        Emergency Ex Parte Writ of Attachment

            In his fifth issue, Greene contends the trial court abused its discretion by issuing an

emergency ex parte writ of attachment in the absence of a court order and facts supporting an

emergency. Greene asserts that issuance of the writ of attachment “without a signed final order

as required by [section 152.308 of the family code], and supplement to [Vernon’s] pleading, was

an abuse of discretion. See TEX. FAM. CODE ANN. § 152.308(a) (West 2014) (a petition for

expedited enforcement of child custody determination must be verified and certified copies of all

orders sought to be enforced must be attached to the petition).

            The record contains the trial court’s May 17, 2013 modification order rendered following

the May 16, 2013 bench trial and the trial court’s May 17, 2013 order for the writ of attachment.

The trial court’s May 17, 2013 modification order awarded sole managing conservatorship of

O.G. to Vernon, and after O.G. was taken into possession pursuant to the writ of attachment, he

has been in the possessory custody of Vernon in accordance with the trial court’s order in the

SAPCR. Under these circumstances, this argument has been rendered moot. 6 An appellate court

is prohibited from deciding a moot controversy. See Nat’l Collegiate Athletic Ass’n v. Jones, 1

S.W.3d 83, 86 (Tex. 1999); Trulock v. City of Duncanville, 277 S.W.3d 920, 924 (Tex. App.—

Dallas 2009, no pet.). 7




     6
         At oral submission, Greene’s counsel acknowledged her “assumption” that “by now,” Green’s fifth issue on appeal is moot.
     7
       Further, with regard to his complaint the emergency motion for writ of attachment failed to comply with family code section 152.308, the
record contains no indication this complaint was raised in the trial court. See TEX. R. APP. P. 33.1(a). Because Greene did not present the
complaint in this appellate issue to the trial court, he did not preserve this issue for appellate review.



                                                                     –13–
                                         Conclusion

      Having resolved Greene’s issues against him, we affirm the trial court’s order.




                                                 /Robert M. Fillmore/
131263F.P05                                      ROBERT M. FILLMORE
                                                 JUSTICE




                                             –14–
                                        S
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                       JUDGMENT

IN THE INTEREST OF O. G., A CHILD                      On Appeal from the 330th Judicial District
                                                       Court, Dallas County, Texas
No. 05-13-01263-CV                                     Trial Court Cause No. 11-07867.
                                                       Opinion delivered by Justice Fillmore,
                                                       Justices Evans and Lewis participating.

      In accordance with this Court’s opinion of this date, the May 17, 2013 “Order in Suit to
Modify Parent-Child Relationship” is AFFIRMED.

       It is ORDERED that appellee Elena Vernon recover her costs of this appeal, if any, from
appellant Stevy Greene.


Judgment entered this 26th day of June, 2014.




                                                –15–
