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

                                          No. 07-17-00131-CV
                                      ________________________


                             IN THE INTEREST OF N.L.M.-B., A CHILD



                                On Appeal from the 364th District Court
                                        Lubbock County, Texas
               Trial Court No. 2012-504,544; Honorable William R. Eichman II, Presiding


                                                July 31, 2017

                                    MEMORANDUM OPINION
                         Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


          In July 2015, the trial court entered its Final Order in Suit Affecting the Parent-

Child Relationship, in which it appointed Appellee, the Texas Department of Protective

and Regulatory Services, as permanent sole managing conservator of N.L.M.-B.

Appellant, D.B., the child’s father, was named possessory conservator.1 Seven months

later, the Department filed its petition to modify conservatorship alleging that

circumstances had materially and substantially changed.                    Trial was to a jury which

          1
              The child’s mother voluntarily relinquished her parental rights and the order terminated her
rights.
found that the child’s maternal grandfather, J.M., should be named permanent sole

managing conservator.       Based on the jury’s verdict, the trial court signed its Order

Modifying Parent-Child Relationship naming J.M. as permanent sole managing

conservator and continuing D.B. as possessory conservator. D.B. challenges that order

by a sole issue questioning the sufficiency of the evidence to establish a material and

substantial change in circumstances between the 2015 order and the modification

order. He does not challenge the best interest finding. We affirm.


       BACKGROUND

       In 2012, the child was removed from her home based on her mother’s neglectful

supervision and drug use.         The Department eventually placed the child with her

maternal grandfather.2 During the pendency of the case, D.B. was incarcerated after

his community supervision for driving while intoxicated was revoked. He began serving

a five-year sentence on October 30, 2013.


       After the Department filed its motion to modify conservatorship and have the

child’s maternal grandfather appointed sole managing conservator, D.B. countered with

a pro se petition for joint managing conservatorship and to dismiss appointment of the

maternal grandfather as sole managing conservator. Two months later, with assistance

of counsel, D.B. filed his Counter-Petition to Modify Parent-Child Relationship. By his

petition, he recited, “[t]he circumstances of the child, a 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.” (Emphasis added).


       2
         The child’s two younger half-brothers were living with the grandfather and were eventually
adopted by him.

                                                2
       At trial, the child’s caseworker testified to what she believed to be material and

substantial changes which would support modification of conservatorship.            Other

witnesses included the child’s maternal grandfather, D.B., his mother, and his girlfriend.

Each testified in support of their respective positions regarding modification of

conservatorship. The jury found in favor of the Department and the trial court’s order

reflects the jury’s verdict.


       APPLICABLE LAW

       The trial court may modify a prior conservatorship order 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

rendition of the prior order.   TEX. FAM. CODE ANN. § 156.101(a)(1)(A) (West 2014).

There are no fixed guidelines as to what constitutes a material and substantial change

in circumstances. See In re N.R.T., 338 S.W.3d 667, 679 (Tex. App.—Amarillo 2011,

no pet.).


       The burden to establish a material and substantial change in circumstances by a

preponderance of the evidence falls on the party seeking modification, in this case, the

Department. Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex. App.—Dallas 2004, no pet.).

A material and substantial change occurs when the party seeking modification

demonstrates the conditions that existed at the time of entry of the prior order as

compared to the circumstances existing at the time of the modification hearing. Zeifman

v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied).




                                            3
        STANDARD OF REVIEW

        A jury’s findings in a conservatorship case are reviewed under the ordinary legal

and factual sufficiency standards.3           In re A.L.H., 515 S.W.3d 60, 80 (Tex. App.—

Houston [14th Dist.] 2017, pet. denied). In reviewing evidence for legal sufficiency, we

view the evidence in the light most favorable to the finding, crediting favorable evidence

if a reasonable fact finder could, and disregarding contrary evidence unless a

reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 822, 827

(Tex. 2005). A factual sufficiency review requires us to examine the entire record and

set aside a jury’s finding only if it is so contrary to the overwhelming weight of the

evidence as to be clearly wrong and unjust. In re A.L.H., 515 S.W.3d at 80. The jury,

as the fact finder, is the sole judge of the credibility of the witnesses and the weight to

be given their testimony. City of Keller, 168 S.W.3d at 819. We may not substitute our

judgment for that of the fact finder’s even if we would reach a different answer on the

evidence. Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402, 407 (Tex. 1998), cert.

denied, 525 U.S. 1017, 119 S. Ct. 541, 142 L. Ed. 2d 450 (1998).


        A trial court’s order modifying conservatorship is reviewed for abuse of discretion.

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Nichol v. Nichol, No. 07-12-

00035-CV, 2014 Tex. App. LEXIS 492, at *7 (Tex. App.—Amarillo Jan. 15, 2014, no

pet.) (mem. op.). Absent a clear abuse of discretion, the trial court’s order modifying the

prior order will not be disturbed on appeal. In re M.S.F. and M.S.F., 383 S.W.3d 712,

715 (Tex. App.—Amarillo 2012, no pet.).

        3
         Essentially, a challenge to the sufficiency of the evidence in a family law matter is a component
of an overarching abuse-of-discretion analysis. Willett v. Rodriguez, No. 03-16-00084-CV, 2017 Tex.
App. LEXIS 5096, at *6 n.11 (Tex. App.—Austin June 2, 2017, no pet.) (mem. op.) (citing Zeifman, 212
S.W.3d at 587).

                                                    4
        In reviewing a trial court’s decision for abuse of discretion, we determine whether

the trial court acted without reference to any guiding rules and principles or,

alternatively, whether the trial court’s actions were arbitrary and unreasonable based on

the circumstances of the case. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315 S.W.3d

28, 31 (Tex. 2010) (citing Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-

42 (Tex. 1985)). The fact that a trial court may decide a matter within its discretion in a

different manner than an appellate court in a similar circumstance does not demonstrate

an abuse of discretion. Downer, 701 S.W.2d at 242.


        ANALYSIS

        The Department raises several arguments in support of the trial court’s order. 4

We find its argument that D.B. judicially admitted that material and substantial changes

had occurred since rendition of the prior order to be dispositive.


        An opposing party’s pleadings can constitute a judicial admission that may

substitute for evidence that has a “conclusive effect and bars the admitting party from

later disputing the admitted fact.” See Holy Cross Church of God in Christ v. Wolf, 44

S.W.3d 562, 568 (Tex. 2001). D.B.’s allegation in his counter-petition precludes him

from asserting on appeal that there were no material and substantial changes in the

circumstances of the child, a conservator, or other affected party since rendition of the

2015 order. See In the Interest of R.A.W., No. 07-13-00316-CV, 2015 Tex. App. LEXIS

3039, at *5 (Tex. App.—Amarillo March 27, 2015, no pet.) (mem. op.) (finding that

mother had judicially admitted an essential element of the father’s case for

        4
         The Department argues that D.B. failed to preserve his factual sufficiency complaint by failing to
file a motion for new trial. The Department also argues the evidence establishes that material and
substantial changes occurred since rendition of the prior order. We need not reach these arguments.

                                                    5
modification). Because D.B. did not challenge the best interest finding, our analysis

need go no further. D.B.’s issue is overruled.


      CONCLUSION

      The trial court’s Order Modifying Parent Child-Relationship is affirmed.




                                                      Patrick A. Pirtle
                                                          Justice




                                            6
