Opinion on rehearing issued August 29, 2019




                                    In The

                             Court of Appeals
                                   For The

                         First District of Texas
                           ————————————
                            NO. 01-18-00840-CV
                            NO. 01-18-00843-CV
                          ———————————
                  IN THE INTEREST OF K.D.B., A Child
                  IN THE INTEREST OF L.R.A., A Child



                  On Appeal from the 312th District Court
                           Harris County, Texas
              Trial Court Case Nos. 2014-61822 and 2003-69065


               MEMORANDUM OPINION ON REHEARING

      Appellant A.L.B. (Mother) moved for rehearing of our March 12, 2019

opinion. We deny Mother’s motion for rehearing, but we withdraw our March 12,

2019 opinion and issue this opinion in its stead. The Concurring and Dissenting
Opinion dated March 12, 2019, and our judgment dated March 12, 2019, remain

unchanged.

      In these consolidated cases, the Texas Department of Family and Protective

Services (DFPS or the Department) sought to modify the conservatorship and

possession exercised by appellant A.L.B. (Mother) over her two minor children,

K.D.B. (Kevin) and L.R.A. (Laura).1 The trial court granted DFPS’s petition to

modify and named Kevin’s father, Ken, sole managing conservator over Kevin and

named Laura’s father, Lance, sole managing conservator over Laura. The trial court

named Mother possessory conservator over both children and required that her

visitation with the children be supervised.2 In three issues on appeal, Mother

contends that the trial court erred by (1) finding that a material and substantial

change in circumstances had occurred justifying modification and that the

modification was in the children’s best interest; (2) appointing Ken and Lance as

sole managing conservators and Mother as possessory conservator; and (3) requiring

that Mother’s visitation with the children be supervised.

      We affirm.


1
      In this opinion, we refer to the minor children and the children’s fathers by
      pseudonyms to protect their identities.
2
      The case involving conservatorship of Kevin was tried in trial court cause number
      2014-61822 and resulted in appellate cause number 01-18-00840-CV. The case
      involving conservatorship of Laura was tried in trial court cause number 2003-
      69065 and resulted in appellate cause number 01-18-00843-CV.
                                          2
                                   Background

      Laura was born in July 2003. In December 2003, the trial court entered an

order adjudicating Lance as Laura’s biological father. In this order, the trial court

named Mother and Lance as joint managing conservators over Laura and gave

Mother the exclusive right to designate Laura’s primary residence. The trial court

imposed a standard possession order setting out Lance’s possession of Laura and

ordered Lance to pay current and retroactive child support to Mother.

      Kevin was born in August 2012. In October 2014, the Texas Attorney

General’s Office filed a petition to establish the parent-child relationship between

Kevin and Ken. After Ken, Kevin, and Mother all underwent DNA testing, the trial

court entered an order in April 2015 adjudicating Ken as Kevin’s biological father

and establishing a parent-child relationship between Ken and Kevin. The trial court

appointed Mother and Ken as joint managing conservators over Kevin and gave

Mother the exclusive right to designate Kevin’s primary residence. The trial court

imposed a standard possession order and required Ken to pay current and retroactive

child support to Mother.

      On May 30, 2017, DFPS moved to modify the conservatorship orders for both

Laura and Kevin and, in the alternative, sought termination of Mother’s, Lance’s,




                                         3
and Ken’s parental rights.3 DFPS alleged that the circumstances of the children or a

conservator had materially and substantially changed since the trial court entered the

December 2003 order pertaining to Laura and since the April 2015 order pertaining

to Kevin. After an adversarial hearing, the trial court appointed DFPS as Laura’s and

Kevin’s temporary managing conservator.

      DFPS created a family service plan for Mother, Lance, and Ken. At an August

2017 status hearing, the trial court approved the service plan and adopted the plan as

an order of the court. The service plan set out the allegations and referrals that led to

DFPS’s involvement with Mother and the children. The service plan required

Mother, Lance, and Ken to participate in a substance abuse assessment and submit

to random drug testing. The plan also required each of the parents to maintain regular

employment, to refrain from engaging in illegal activities, to maintain safe and stable

housing, to participate in a psychosocial evaluation, and to participate in parenting

classes. The service plan further required Mother to participate in Narcotics

Anonymous/Alcoholics Anonymous (“NA/AA”) meetings at least twice per week,




3
      DFPS filed its modification motion in the cause number relating to Laura in the
      312th District Court of Harris County on May 30, 2017. This motion referenced
      both Laura and Kevin. DFPS filed a substantively identical motion in the cause
      number relating to Kevin in the 310th District Court of Harris County on June 30,
      2017. On July 5, 2017, the presiding judge of the 310th District Court transferred
      the case relating to Kevin to the 312th District Court to be consolidated with the
      case relating to Laura. DFPS then filed a second motion to modify Kevin’s
      conservatorship on July 6, 2017.
                                           4
to participate in individual counseling until discharged, and to participate in family

counseling with the children.

      The trial court held a final bench trial on the cases in August 2018. Candis

Benoit, the DFPS caseworker assigned to the cases, testified that Laura had been

living with Lance since March 2018 and that Kevin had been living with Ken since

June 2018. She stated that she had no concerns with the children living with their

respective fathers and that the children’s fathers were meeting all of the children’s

needs. Kevin had had some behavioral issues during the pendency of the case, but

both he and Laura were doing well in their placements. Benoit stated that both Lance

and Ken had completed all services required of them by the service plan. She

testified that the Department was requesting that the children remain in their current

placements, that Lance be named Laura’s sole managing conservator, that Ken be

named Kevin’s sole managing conservator, and that Mother be named possessory

conservator of both children.

      Benoit agreed with DFPS’s counsel that the cases “started out as participation

in services,” but “[t]here were some issues with compliance and the case escalated

to a conservatorship case.” She stated that a service plan was in place for Mother.

Mother completed the required psychological evaluation, and she participated in

substance abuse treatment at a facility called Career and Recovery, but she was

unsuccessfully discharged from that program in March 2018. Mother participated in


                                          5
drug testing at Career and Recovery, but she did not participate in any of the random

drug tests requested by DFPS. Mother’s drug testing results for Career and Recovery

demonstrated that she tested positive for PCP and she tested positive for marijuana

in May 2018. Benoit testified that, to her knowledge, Mother had not participated in

any other substance abuse treatment program after being discharged from Career and

Recovery.

       Benoit further testified that Mother still had several services left to complete,

including participating in NA/AA meetings, parenting classes, anger management

classes, and individual and family counseling. Mother had to demonstrate that she

could maintain safe and stable housing, and she needed to successfully complete

substance abuse treatment. Benoit stated that DFPS’s major concern with Mother

was her sobriety. DFPS also had concerns arising out of Mother’s psychological

assessment, during which she made “threatening statements about the folks in this

case.” Due to DFPS’s concerns about Mother’s mental health and her sobriety, the

Department believed that keeping the children with their respective fathers was in

their best interest.

       With respect to Mother’s visitation with the children, Benoit stated that, the

last time she had spoken with Lance and Ken, they were not comfortable supervising

Mother’s visitation. The Department thus requested that if the fathers and Mother

could not come up with a mutually-agreeable person to supervise Mother’s


                                           6
visitation, the visitation should be done through a supervisory program. Benoit also

testified that Laura, who was fifteen at the time of trial, had a cell phone and

occasionally communicated with Mother in that manner. Benoit believed that it was

in Laura’s best interest to allow phone communications with Mother to continue and

that it was up to Lance to make sure the communications were appropriate. She

stated that the Department was not seeking to prevent electronic communication

between Mother and Laura, and she agreed that Laura loved Mother and wanted to

stay in contact with her.

      Benoit also agreed with Mother’s counsel that, throughout the pendency of

the case, Mother had consistently wanted to see her children, and she had been

present for every court hearing. Benoit agreed that Mother had had Kevin enrolled

in school. She also agreed that Mother had never indicated that she wished to harm

Kevin or Laura. Benoit testified that if Mother wanted to meet up with Laura at the

mall, for example, it would be up to Lance to decide whether to allow that, but the

Department did not want Mother meeting with Laura alone due to Mother’s

“behaviors on top of the positive drug tests that we have received through the

provider that she went to.” Benoit stated that Mother had informed her that she

worked as a caregiver for the elderly, but Mother had not told Benoit that she had a

stable place to live.




                                         7
      On examination by Ken’s counsel, Benoit testified that Ken had completed all

services required by the service plan, that Ken had demonstrated that he was

benefitting from the services provided to him, and that he felt as though participating

in the services had made him a better father. She testified that Kevin is very happy

in Ken’s home and that he is thriving there. She stated that Ken’s home was clean

and stable, and Ken and his partner had demonstrated that they were able to provide

for Kevin’s emotional and physical needs. She agreed that Ken had expressed to her

that he wants Kevin to complete school and go to college, and she had made Ken

aware that Kevin would be eligible for a college tuition waiver. Benoit also agreed

that Ken wants to avoid “drama” with Mother and that he believed it would be best

for him and Mother to mutually agree on someone to supervise Mother’s visits with

Kevin. Benoit agreed that Ken did not want to prevent Mother from having access

to Kevin.

      Ken testified that Kevin had been living in his home for a couple of months,

that everything was fine, and that Kevin got along well with the other children in his

home. Ken did not have any concerns about Kevin being placed with him on a

permanent basis, and he believed it would be in Kevin’s best interest for him to

remain in Ken’s home. Ken stated that he had the same concerns as Benoit with

regard to Mother having unsupervised visitation with Kevin, and he hoped that he

and Mother could agree on someone to supervise Mother’s visitation. Upon


                                          8
questioning by the trial court, Ken agreed that if the court modified the

conservatorship order to give him primary custody of Kevin his child support

obligation should cease. He stated that he had not thought about whether Mother

should be required to pay child support to him.

      Ken agreed with Mother’s counsel that Kevin loves Mother and that Mother

loves Kevin. He did not have any fear that Mother would harm Kevin. He would be

willing to think of people who could supervise Mother’s visitation with Kevin, and

he named his younger sister as an example. He stated that he did not wish to keep

Mother from seeing Kevin or from spending holidays with him.

      Lance testified that Laura had been living with him and his mother, Laura’s

grandmother, since March 2018, and he had no concerns with her remaining in his

house. Lance also stated that he was not comfortable supervising Mother’s visitation

with Laura, but he mentioned an aunt as a possible person who could supervise, and

he understood that if he and Mother could not agree on a supervisor, a supervisory

program would be used. He also shared the Department’s concerns about Mother’s

having unsupervised visitation, and he believed that supervised visitation would be

in Laura’s best interest. Lance also testified that Laura and Mother communicated

by cell phone, that the communications had been appropriate so far, and that he

would stop the communications if they became inappropriate. Lance also requested




                                         9
that his child support obligation stop, and he stated that he would “leave that up to

the Court to decide” whether to impose a support obligation on Mother.

      Lance agreed with Mother’s counsel that Laura was not afraid of Mother and

that they communicated frequently. Although he had no concern that Mother, if left

unsupervised with Laura, would kidnap her or leave the state with her, he still was

not comfortable with Mother’s having unsupervised visitation, even if that visitation

occurred in a public place like a mall.

      Lance also testified that Laura and Kevin were close and that Laura wished to

maintain her relationship with Kevin. Lance stated that he would help ensure that

Laura and Kevin could stay in contact, and he agreed to work with Ken in that regard.

      Mother testified that she did not agree that Lance and Ken should have

primary custody of Laura and Kevin, stating, “They could have had them a long time

ago. They left. They chose to live their life. And now it’s about money and they

doing what they wanting them to do.” Mother stated, “All CPS is worried about is a

check” and “[k]eep[ing] the kids in the circle so they can get paid.” She did not agree

that supervised visitation was necessary because she loved the children and she

would not hurt them. She also testified, “I made their program [Career and

Recovery], I just never did go get discharged. I have somewhere to stay and I work

and I’m not doing nothing,” referring to using drugs.




                                          10
      Mother testified that she worked for a home delivery company and as a

caregiver for the elderly and that she had two patients at the time of trial. She stated

that she was able to take care of her children. She also stated, “I want to see my kids.

I don’t need nobody around me and my kids. [The children] don’t want that either.

Nobody wants that but her back there [Benoit] to keep her money flowing to pay for

her new truck.” Mother stated that she and Lance could work together with regard

to Laura, and she indicated that she had had regular visitations with Laura, but she

had not seen Kevin since he had been placed with Ken. With respect to completing

the substance abuse treatment program, Mother testified:

      Yes, I did what I needed. I took out my time and went and did that, lost
      money doing that. Losing money every time I come here. While
      everybody else making their money clocking they dollars, I’m losing
      money. Everybody want to keep this going to keep money going. But
      it’s more—it’s more than money. All this money that they done slung—
      my tax dollars slung around on therapists. No, it ain’t nothing wrong
      with my kids but them. My daughter is just stressing because she don’t
      want to be there. You know what I’m saying? All of this is—my kids
      not used to all of this. Ain’t nothing wrong with my kids. You don’t
      send kids to no doctor, you don’t put kids on medicine without they
      momma knowing—without they mother consent.

      So, she [Benoit] needs to watch the bad she doing with my kids. She
      needs to watch her kids, because what you do to somebody else comes
      back on you ten times. And I already told her I’m not worried about
      that lady back there. She . . . that is a paycheck to her. When this case
      over with it’s going to be another child.

Mother agreed that she could get along with both Lance and Ken for the children’s

sake, stating, “I don’t have to like them to get along with them.”


                                          11
      On cross-examination, Mother testified that she can set her own hours at her

job, working as much or as little as she wants, and that she makes between $25 to

$40 per hour. However, Mother testified that she could not afford child support,

stating, “I can keep taking care of my children because that’s money I earn and he

not getting.” Mother had the following exchange with Ken’s counsel:

      Q.    [Mother], you can certainly afford to pay child support?
      A.    No, I can’t.
      Q.    Why can you not afford that?
      A.    Because if it come down to pay child support, I ain’t going to
            work because I’m not fixing to give them a dime. I can take care
            of my own kids. I don’t need nobody to raise them up or taking
            care my kids for me when I been doing it and I’m going to keep
            doing it.
      Q.    So, you’re able to make—
      A.    So, if it’s money you aiming for, I’m through with that
            conversation, move to the next.
      Q.    So, you’re able to work full time at 25 to $40 per hour, but if
            you’re ordered to pay child support—
      A.    I’ll work zero hours.
      Q.    Let me finish.
      A.    Zero.
      Q.    You’re saying that you would intentionally—
      A.    Intentionally.
      Q.    —not work?
      A.    Not work. Because that’s all y’all doing putting them there. I
            don’t need nobody taking care of my kids. Something I been
            doing, I’m going to keep doing it.

                                       12
Mother also acknowledged on cross-examination that she had not received a

certificate for completing any of her services, such as the substance abuse treatment,

the anger management classes, and the parenting classes, and she acknowledged that

she had tested positive for marijuana and PCP earlier in 2018.

      At the close of the hearing, the trial court stated that there is no longer any

reason for the Department to be the children’s temporary managing conservator. The

court found that, with regard to Kevin, there had been a material and substantial

change in circumstances since the April 2015 order, and the court named Ken as

Kevin’s sole managing conservator and Mother as Kevin’s possessory conservator.

The trial court further ordered that Mother could not attend activities at Kevin’s

school on an unsupervised basis, and the court ordered Mother’s visitation with

Kevin to be supervised by someone mutually agreeable to Mother and Ken or by

The Visitation Center, part of the Harris County Domestic Relations Office. The

court ordered Mother to have at least four hours twice a month of visitation with

Kevin. The court also granted Mother electronic communication with Kevin “at all

reasonable times.” The court terminated Ken’s child support obligation and ordered

Mother to pay $180 per month in support for Kevin and reimburse Ken $50 per

month for Kevin’s health insurance.

      The trial court made similar findings concerning Laura, including naming

Lance as her sole managing conservator and naming Mother as the possessory
                                         13
conservator. The trial court stated that Mother could attend school activities for

Laura unsupervised, but otherwise, any other visitation with Laura had to be

supervised. The court terminated Lance’s child support obligation and ordered

Mother to pay $180 per month in child support and $50 per month for health

insurance.

      The trial court signed written orders memorializing these findings and

modifying the prior conservatorship orders for both Laura and Kevin. Mother did

not request findings of fact and conclusions of law. This appeal followed.

               Material and Substantial Change in Circumstances

      In her first issue, Mother contends that the trial court abused its discretion

when it granted DFPS’s motion to modify because DFPS presented insufficient

evidence of a material and substantial change in circumstances. She also argues that

DFPS presented insufficient evidence that modification of the conservatorship

orders was in the children’s best interest.

A.    Standard of Review

      We review a trial court’s decision to modify a conservatorship order for an

abuse of discretion. Epps v. Deboise, 537 S.W.3d 238, 242 (Tex. App.—Houston

[1st Dist.] 2017, no pet.); Arredondo v. Betancourt, 383 S.W.3d 730, 734 (Tex.

App.—Houston [14th Dist.] 2012, no pet.) (stating that courts review orders

modifying conservatorship for abuse of discretion because trial courts have broad


                                          14
discretion to decide best interest of child in family law matters). A trial court’s

modification decision will only be disturbed on appeal when it is clear that the trial

court acted in an arbitrary or unreasonable manner, without reference to any guiding

rules or principles. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—Houston

[1st Dist.] 2008, no pet.); Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.—

Austin 2006, pet. denied) (“The mere fact that a trial court decided an issue in a

manner differently than an appellate court would under similar circumstances does

not establish an abuse of discretion.”).

      Under the abuse of discretion standard of review, legal and factual sufficiency

of the evidence are not independent grounds for error, but are instead factors to be

used in assessing whether the trial court abused its discretion. Arredondo, 383

S.W.3d at 734. There is no abuse of discretion as long as some evidence of a

substantive and probative character exists to support the trial court’s decision.

Stamper, 254 S.W.3d at 542. We must determine whether the trial court (1) had

sufficient information on which to exercise its discretion and (2) erred in its

application of discretion. Id.; Zeifman, 212 S.W.3d at 588. When conducting a legal-

sufficiency review, we determine whether the evidence would enable reasonable

people to reach the judgment being reviewed. Stamper, 254 S.W.3d at 542 (citing

City of Keller v. Wilson, 168 S.W.3d 802, 827 (Tex. 2005)). We consider favorable

evidence if a reasonable factfinder could, and we disregard contrary evidence unless


                                           15
a reasonable factfinder could not. Id. If the evidence would enable reasonable and

fair-minded people to differ in their conclusions, the factfinder must be allowed to

do so, and we cannot substitute our judgment for that of the factfinder as long as the

evidence falls within this zone of reasonable disagreement. Epps, 537 S.W.3d at 243.

      In conducting a factual-sufficiency review, we consider all of the evidence

that supports and contradicts the factfinder’s determination. Id. We may set aside a

verdict only if the evidence supporting it is so contrary to the overwhelming weight

of the evidence as to be clearly wrong or unjust. Id. The factfinder is the sole judge

of the credibility of the witnesses and the weight to be given to their testimony. Id.

When considering whether the trial court erred in its application of discretion, we

must determine whether, based on the evidence presented, the trial court made a

reasonable decision. Stamper, 254 S.W.3d at 542. The trial court is in a better

position to decide custody cases because “it faced the parties and their witnesses,

observed their demeanor, and had the opportunity to evaluate the claims made by

each parent.” In re J.J.G., 540 S.W.3d 44, 56 (Tex. App.—Houston [1st Dist.] 2017,

no pet.) (quoting In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet.

denied)).

B.    Governing Law

      A court that has continuing, exclusive jurisdiction may modify an order that

provides for the conservatorship, support, or possession of and access to a child.


                                         16
TEX. FAM. CODE ANN. § 156.001. Family Code section 156.101 sets out the grounds

for modifying a conservatorship order:

      (a)    The court may modify an order that provides for the appointment
             of a conservator of a child, that provides the terms and conditions
             of conservatorship, or that provides for the possession of or
             access to a child if modification would be in the best interest of
             the child and:
             (1)    the circumstances of the child, a conservator, or
                    other party affected by the order have materially and
                    substantially changed since the earlier of:
                    (A)   the date of the rendition of the order;
                          or
                    (B)   the date of the signing of a mediated or
                          collaborative       law       settlement
                          agreement on which the order is
                          based . . . .

Id. § 156.101(a); Epps, 537 S.W.3d at 243 (stating that court can modify terms of

conservatorship order if movant shows (1) material and substantial change

warranting modification since date of last order and (2) modification would be in

best interest of child). “The change-in-circumstances requirement is a threshold

issue for the trial court and is based on a policy of preventing constant re-litigation

with respect to children.” Smith v. Karanja, 546 S.W.3d 734, 738 (Tex. App.—

Houston [1st Dist.] 2018, no pet.); see In re A.L.E., 279 S.W.3d 424, 428 (Tex.

App.—Houston [14th Dist.] 2009, no pet.) (“In an effort to ensure stability and

continuity for children, Texas law has imposed ‘significant hurdles’ before a

conservatorship order may be modified.”). Unlike termination of parental rights

                                          17
cases, in which the statutory grounds for termination must be established by clear

and convincing evidence, the standard of proof for conservatorship decisions is

preponderance of the evidence. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007).

      “Determination of a substantial and material change is not controlled by a set

of guidelines; instead, it is fact specific.” Epps, 537 S.W.3d at 243. Some examples

of material and substantial changes 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-parent, and (5) a parent’s becoming an improper

person to exercise custody. Smith, 546 S.W.3d at 741; In re A.L.E., 279 S.W.3d at

428–29 (noting that this list of material changes is “non-comprehensive”). “Changes

in a child’s home surroundings or circumstances rendering a conservator unsuitable

are examples of the material and substantial changes contemplated by section

156.101(a)(1).” In re J.R.P., 526 S.W.3d 770, 779 (Tex. App.—Houston [14th Dist.]

2017, no pet.).

      To demonstrate that a material and substantial change in circumstances has

occurred, the evidence must show the conditions that existed at the time of the prior

order as compared to the conditions that existed at the time of the hearing on the

motion to modify. In re L.C.L., 396 S.W.3d 712, 718 (Tex. App.—Dallas 2013, no

pet.); In re W.C.B., 337 S.W.3d 510, 514 (Tex. App.—Dallas 2011, no pet.) (stating

that, to determine if material and substantial change has occurred, “the trial court


                                         18
compares the evidence of the conditions that existed at the time of the entry of the

prior order with the evidence of the conditions that existed at the time of the hearing

on the petition to modify”); see Zeifman, 212 S.W.3d at 594 n.1 (stating that record

“must contain both historical and current evidence of the relevant circumstances”

and that “[w]ithout both sets of data, the court has nothing to compare and cannot

determine whether a change has occurred”). A material and substantial change in

circumstances may be established by direct or circumstantial evidence. Arredondo,

383 S.W.3d at 735. “[T]he law does not prescribe any particular method for a

showing of changed circumstances, which may be established by circumstantial

evidence.” In re A.L.E., 279 S.W.3d at 429.

      To a modify a conservatorship order, the party seeking modification must also

establish that the modification is in the best interest of the child. See Epps, 537

S.W.3d at 243. In determining the best interest of the child, courts consider 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 individual seeking custody;
      (5)    the programs available to assist the individual to promote the best
             interest of the child;


                                          19
      (6)    the plans for the child by the individual or by the agency seeking
             custody;
      (7)    the stability of the home or proposed placement;
      (8)    the acts or omissions of the parent, or potential conservator, that
             may indicate that the existing relationship is not a proper one;
             and
      (9)    any excuse for the acts or omissions of the parent or potential
             conservator.

Mauldin v. Clements, 428 S.W.3d 247, 269 (Tex. App.—Houston [1st Dist.] 2014,

no pet.) (citing Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976)). These

factors are not exhaustive, and it is not a requirement that evidence on all factors be

present in every case. See In re C.H., 89 S.W.3d 17, 27 (Tex. 2002) (stating, in

context of termination of parental rights, that there is no requirement that all of

Holley factors be proved as condition precedent for termination of rights); In re

A.L.H., 515 S.W.3d 60, 79 (Tex. App.—Houston [14th Dist.] 2017, pet. denied)

(stating, in context of modification case, that evidence is not required on every

Holley factor to support modification).

C.    Analysis

      Mother argues that insufficient evidence supports the trial court’s finding that

a material and substantial change in circumstances had occurred justifying the

modification of the December 2003 and April 2015 conservatorship orders. She

argues that the record contains no evidence regarding the circumstances of the

children, Lance, Ken, or Mother herself at the time the prior orders were entered and

                                          20
that there was “very limited evidence” of the circumstances of the children, their

fathers, and Mother at the time of the modification. She contends that the evidence

that the children were doing well in their placements with their respective fathers

and that Mother had admitted to using marijuana several months before the

modification hearing was insufficient to support the trial court’s modification

finding.

      Although Mother is correct that DFPS elicited no testimony at trial concerning

the circumstances of the children, their fathers, and Mother at the time of the

December 2003 and the April 2015 orders appointing Mother as a joint managing

conservator of Laura and Kevin, respectively, and giving her the exclusive right to

determine the children’s primary residence, we do not agree that the record contains

no evidence from which the trial court could have concluded that a material and

substantial change in circumstances had occurred.

      The record demonstrates that DFPS became involved with Mother and her

children possibly as early as November 2015,4 approximately seven months after the

trial court entered the conservatorship order relating to Kevin, Mother’s younger


4
      The first referral of Mother’s family to DFPS, as stated in the family service plan,
      does not state a year for the referral, only the month and the day: November 28. In
      discussing that referral, the service plan references an “unknown male child age 3.”
      Kevin, who was born in August 2012, would have been three years old in November
      2015. The service plan then lists a second referral occurring on December 5, 2016,
      and specifically states that Kevin was four and Laura was 13 at the time of that
      referral.
                                           21
child. The family service plan, adopted by the trial court as an order of the court, set

out the reason for DFPS involvement in the children’s lives. At trial, Benoit, the

DFPS caseworker, did not testify concerning the referrals made to DFPS or how the

children became involved with DFPS. Instead, she testified that the cases began “as

participation in services” cases, which then “escalated” to conservatorship cases due

to “some issues with compliance.” In May 2017, DFPS sought modification of the

December 2003 and April 2015 conservatorship orders or, in the alternative,

termination of the parental rights of Mother, Lance, and Ken. The trial court ordered

Mother, Ken, and Lance to complete a family service plan.

      DFPS presented testimony that, during the pendency of the modification

proceedings, Lance and Ken had completed their service plans, but Mother had not.

At the time of the final hearing in August 2018, Laura had been living in Lance’s

home since March 2018, and Kevin had been living in Ken’s home since June 2018.

Mother had not provided Benoit with evidence that she had stable housing. DFPS

also presented evidence of Mother’s drug use, including positive test results for both

marijuana and PCP usage, which Mother also admitted. Benoit testified that Mother

had not completed a substance abuse treatment program, nor had she participated in

any of the random drug screenings that DFPS had requested during the pendency of

the case. Benoit also testified that Mother failed to complete other requirements of

her service plan, including failing to participate in parenting classes, participate in


                                          22
NA/AA meetings, complete anger management classes, and complete individual and

family counseling.

      A parent becoming an improper person to exercise custody can be a material

and substantial change in circumstances justifying modification of a prior

conservatorship order. See In re A.L.E., 279 S.W.3d at 429. Courts have also

concluded that a parent’s drug use can support a trial court’s finding of a material

and substantial change. See In re J.R.P., 526 S.W.3d at 779. Although no specific

testimony at trial established the circumstances of the children and the parents at the

time of the prior conservatorship orders, at the time of those orders in December

2003 and April 2015, the trial court appointed Mother as a joint managing

conservator and gave her the exclusive right to determine her children’s primary

residence. There is no indication that DFPS was involved with the children at the

time the trial court entered these orders. The record includes evidence that, after the

entry of the April 2015 order relating to Kevin, DFPS became involved in the lives

of Mother and the children after it received two referrals for neglectful supervision

of the children.5 The record also includes evidence that DFPS sought modification


5
      The trial court was entitled to take judicial notice of its own orders, including the
      order issued after an August 2017 status hearing in which the court adopted the
      family service plans signed by DFPS representatives, Mother, Ken, and Lance as
      orders of the court. See In re B.D.A., 546 S.W.3d 346, 363–64 (Tex. App.—Houston
      [1st Dist.] 2018, pet. filed); see also In re E.W., 494 S.W.3d 287, 299 n.12 (Tex.
      App.—Texarkana 2015, no pet.) (“[A] trial court may take judicial notice of its
      previous orders and findings of fact from the same case.”); In re K.F., 402 S.W.3d
                                           23
of the conservatorship orders and, alternatively, termination of Mother’s parental

rights based on Mother’s conduct, that Mother tested positive for and admitted using

controlled substances during the pendency of the case, and that Mother failed to

complete most of the services required by the family service plan. We conclude that

the trial court reasonably could have determined that Mother’s circumstances had

materially and substantially changed since the entry of the December 2003 and April

2015 conservatorship orders and that some evidence in the record supports this

determination. See TEX. FAM. CODE ANN. § 156.101(a)(1); Arredondo, 383 S.W.3d

at 735 (stating that material and substantial change in circumstances may be

established by direct or circumstantial evidence); In re A.L.E., 279 S.W.3d at 429




      497, 505 (Tex. App.—Houston [14th Dist.] 2013, pet. denied) (“A trial court may
      take judicial notice of the records in its own court filed in the same case, with or
      without the request of a party.”). However, although a trial court may take judicial
      notice of the existence of certain documents in its records, it may not take judicial
      notice of the truth of factual statements and allegations contained in those
      documents. See In re E.W., 494 S.W.3d at 296; In re K.F., 402 S.W.3d at 505.
      Relevant here, the trial court was not permitted to take judicial notice of the truth of
      the allegations and referrals against Mother contained in the family service plan,
      which is part of the clerk’s record but was not admitted into evidence at trial. The
      trial court could, however, take judicial notice of the existence of the August 2017
      order issued after a status hearing in which the court adopted the family service
      plans signed by DFPS representatives, Mother, Ken, and Lance. See In re B.D.A.,
      546 S.W.3d at 363–64; In re K.F., 402 S.W.3d at 504–05. Likewise, in our analysis
      of whether DFPS presented sufficient evidence of a material and substantial change
      in circumstances, we do not consider the allegations in the referrals contained in the
      family service plans. We may, however, consider the fact that the trial court entered
      an order adopting the family service plans as an order of the court, indicating that
      DFPS had become involved in the children’s lives.
                                             24
(noting that material and substantial change can be established by circumstantial

evidence).

      Mother also argues that DFPS failed to present sufficient evidence that the

modification of the conservatorship orders was in the children’s best interests. In

arguing that the evidence was insufficient to support the best interest finding, Mother

points out that DFPS failed to elicit testimony relevant to several of the Holley

factors, including the children’s desires, the children’s emotional and physical needs,

the availability of programs to assist an individual in promoting the children’s best

interest, the stability of the proposed placements, acts or omissions by a parent

indicating the parent-child relationship was improper, and excuses for these acts or

omissions.

      As an initial matter, we note that the Holley factors are not exclusive, and the

party seeking modification of the conservatorship orders need not present evidence

on every factor in order to support a finding that modification is in the children’s

best interest. See In re A.L.H., 515 S.W.3d at 79; Mauldin, 428 S.W.3d at 269. DFPS

presented evidence that, after it became involved in the children’s lives, Mother

tested positive for using marijuana and PCP. Although Mother’s family service plan

required her to complete a substance abuse treatment program and she attended

treatment with Career and Recovery, she was unsuccessfully discharged from that

program and she did not participate in the drug tests that DFPS requested.


                                          25
      Benoit testified that the family service plan required Mother to participate in

several other classes and programs, including parenting classes, NA/AA meetings,

anger management classes, and individual and family counseling. She testified that

Mother did not complete these requirements. Benoit also testified that both Ken and

Lance completed the parenting classes required by their service plans, and Ken

informed Benoit that, due to the classes, he felt as though he had improved as a

parent. See Mauldin, 428 S.W.3d at 269 (listing Holley factors, including “parental

abilities of the individual seeking custody” and “programs available to assist the

individual to promote the best interest of the child”).

      DFPS presented evidence that Laura had been living with Lance and Lance’s

mother, Laura’s grandmother, since March 2018 and that Kevin had been living with

Ken, Ken’s partner, and their children since June 2018. Both Laura and Kevin were

thriving in their placements with their fathers. Benoit testified that Kevin, in

particular, was doing well at Ken’s home and that Ken was meeting all of Kevin’s

emotional and physical needs. Ken had expressed to Benoit that he wanted Kevin to

finish school and go to college, and Ken was aware that, when that time arrived,

Kevin would be eligible for a tuition waiver. See id. (listing “plans for the child by

the individual or by the agency seeking custody” as Holley factor). Benoit also

testified that while both Lance’s and Ken’s homes were stable, Mother had not

provided any information to Benoit regarding her living conditions. See id. (listing


                                          26
“stability of the home or proposed placement” as Holley factor). Mother also

presented no evidence of her plans for either child.

      The evidence presented at the modification hearing reflects that Mother

undoubtedly loves her children and that the children love her. Neither Lance nor Ken

wanted to keep the children away from Mother, and neither of them believed that

the children were in any danger from Mother, but they both testified that they were

not comfortable with Mother’s visiting the children alone and they were not

comfortable supervising Mother’s visits with the children. Benoit echoed these

concerns, testifying that the Department’s primary concerns were Mother’s sobriety

and her mental health. Although Benoit did not elaborate in her testimony, she stated

that Mother had made “threatening statements about the folks in this case.” Mother,

during in her testimony, was extremely critical of both Benoit and DFPS, at one

point stating, “So, she [Benoit] needs to watch the bad she doing with my kids. She

needs to watch her kids, because what you do to somebody else comes back on you

ten times.”

      Mother testified that she is employed, working both for a home delivery

service and as a caregiver for the elderly. She stated that she can work as many or as

few hours as she chooses, and she stated that she makes between $25 and $40 per

hour. When asked by Ken’s counsel if she could afford child support if the trial court

modified the conservatorship orders and required the children to live with their


                                         27
fathers, Mother stated that she could not. Mother stated, “I can take care of my own

kids,” and she testified that she would not give Lance and Ken “a dime.” When

pressed by Ken’s counsel, Mother testified that she would work “zero hours” and

would intentionally not work rather than pay child support to Lance and Ken.

      Considering all of the testimony presented at the modification hearing, DFPS

presented evidence from which the trial court reasonably could have concluded that

modifying the conservatorship orders to name Lance and Ken as sole managing

conservators of Laura and Kevin, respectively, and to name Mother as possessory

conservator of both children was in the children’s best interest. See TEX. FAM. CODE

ANN. § 156.101(a)(1); Epps, 537 S.W.3d at 243. We therefore conclude that the trial

court did not abuse its discretion in modifying the December 2003 and April 2015

conservatorship orders.

      We overrule Mother’s first issue.

           Appointment of Fathers as Sole Managing Conservators

      In her second issue, Mother argues that the trial court erred when it failed to

appoint her as a joint managing conservator and instead appointed Lance and Ken

as sole managing conservators over Laura and Kevin, respectively, and appointed

her as possessory conservator. She argues that DFPS failed to overcome the

presumption that she, as the children’s biological mother, should be named a joint

managing conservator.


                                          28
A.    Governing Law

      The best interest of the child is always the primary focus of conservatorship

decisions. Turrubiartes v. Olvera, 539 S.W.3d 524, 528 (Tex. App.—Houston [1st

Dist.] 2018, pet. denied). Texas law presumes that the appointment of the parents of

a child as joint managing conservators is in the child’s best interest. TEX. FAM. CODE

ANN. § 153.131(a)–(b); Turrubiartes, 539 S.W.3d at 528. Specifically, Family Code

section 153.131(a) provides:

      Subject to the prohibition in Section 153.004, unless the court finds that
      appointment of the parent or parents would not be in the best interest of
      the child because the appointment would significantly impair the
      child’s physical health or emotional development, a parent shall be
      appointed sole managing conservator or both parents shall be appointed
      as joint managing conservators of the child.

TEX. FAM. CODE ANN. § 153.131(a). However, this presumption that appointment of

both parents as joint managing conservators is in the child’s best interest is

rebuttable. Id. § 153.131(b). Once the party seeking appointment as sole managing

conservator introduces evidence to rebut the presumption, it disappears.

Turrubiartes, 539 S.W.3d at 528.

      The Texas Supreme Court has held that the parental presumption set out in

Family Code section 153.131(a) only applies in original custody proceedings and

not in modification proceedings, such as the underlying case. See In re V.L.K., 24

S.W.3d 338, 343 (Tex. 2000). In holding that the parental presumption does not

apply in modification proceedings, the supreme court noted that, in enacting the

                                         29
presumption, the Legislature placed the presumption in Family Code Chapter 153,

which governs original custody proceedings, and did not include the presumption in

Family Code Chapter 156, which governs modification proceedings. Id. The court

stated:

      Chapter 153 and Chapter 156 are distinct statutory schemes that involve
      different issues. Chapter 156 modification suits raise additional policy
      concerns such as stability for the child and the need to prevent constant
      litigation in child custody cases. The Legislature has determined that
      the standard and burden of proof are different in original and
      modification suits. A natural parent has the benefit of the parental
      presumption in an original proceeding, and the nonparent seeking
      conservatorship has a higher burden. However, the Legislature did not
      impose different burdens on parents and nonparents in modification
      suits. When we construe a statute, our primary objective is to give effect
      to the Legislature’s intent. Because the Legislature did not express its
      intent to apply the presumption in Chapter 156 modification suits,
      courts should not apply the presumption in those cases.

Id. (internal citations omitted). The court thus concluded, “Chapter 153’s parental

presumption does not apply in a Chapter 156 modification proceeding.” Id. at 344.

      Following In re V.L.K., the intermediate appellate courts, including this Court,

have likewise held that the presumptions provided for in Family Code section

153.131 apply only in suits for an original custody determination under Chapter 153,

not in modification proceedings under Chapter 156. See, e.g., Rolle v. Hardy, 527

S.W.3d 405, 416 (Tex. App.—Houston [1st Dist.] 2017, no pet.) (“Section 153.131’s

parental presumption applies only in original custody disputes—it does not apply to

modification suits, such as the one [the children’s uncle] has filed here.”); Mauldin,


                                         30
428 S.W.3d at 266–67 (holding that parental presumption did not apply in case that

started as modification proceeding filed by child’s father and ultimately became

dispute between child’s mother and child’s paternal grandparents, who intervened in

case); In re S.A.H., 420 S.W.3d 911, 917 (Tex. App.—Houston [14th Dist.] 2014,

no pet.) (noting that Chapter 156 governing modifications “does not contain any

provisions either expressly recognizing a parental presumption or providing methods

to rebut such a presumption” and that section 156.101, setting out standard of proof

for modification of conservatorship, “contains no express reference to a parental

presumption”); In re Guardianship of C.E.M.-K., 341 S.W.3d 68, 78–79 (Tex.

App.—San Antonio 2011, pet. denied) (holding, in case in which child’s former

step-father sought conservatorship over child and termination of biological father’s

parental rights following death of child’s mother, that suit was modification suit

governed by Chapter 156 and parental presumption did not apply); In re C.A.M.M.,

243 S.W.3d 211, 216 (Tex. App.—Houston [14th Dist.] 2007, pet. denied) (“By

including the parental presumption in original suits affecting the parent-child

relationship but not in suits for modification of conservatorship, the Legislature

balanced the rights of the parent and the best interest of the child.”); In re P.D.M.,

117 S.W.3d 453, 457–58 (Tex. App.—Fort Worth 2003, pet. denied) (stating, in

custody dispute between children’s father and children’s grandmother following

death of children’s mother, that “the Legislature decided that based on policy


                                         31
concerns, such as stability for the child, once custody, even between two parents, is

established by court order, the parental presumption does not apply to any

subsequent custody proceeding regardless of the parties involved”).

B.    Analysis

      In these cases, the trial court first entered an order determining custody with

respect to Laura in December 2003, when it adjudicated Lance as Laura’s father,

appointed Mother and Lance as joint managing conservators over Laura, named

Mother as the conservator with the exclusive right to designate Laura’s primary

residence, set out a visitation and possession schedule for Lance, and imposed

support obligations on Lance. The trial court first entered an order determining

custody with respect to Kevin in April 2015, when it adjudicated Ken as Kevin’s

father, appointed Mother and Ken as joint managing conservators over Kevin, gave

Mother the exclusive right to designate Kevin’s primary residence, set out Ken’s

visitation and possession schedule, and imposed support obligations on Ken.

      In May 2017, DFPS moved to modify the December 2003 and April 2015

orders, ultimately seeking the appointment of Lance and Ken as the sole managing

conservators over Laura and Kevin, respectively, and the appointment of Mother as

a possessory conservator over the children. DFPS, Lance, and Ken also requested

corresponding changes to the fathers’ child support obligations and the imposition

of a support obligation on Mother.


                                         32
      It is undisputed that the underlying cases are modification proceedings, not

proceedings seeking an original child custody determination. As such, these cases

are governed by Family Code Chapter 156, not Family Code Chapter 153. Because

these cases are modification proceedings, the presumption set out in Family Code

section 153.131—that the appointment of the parents of a child as joint managing

conservators is in the best interest of the child—does not apply in these cases. See

In re V.L.K., 24 S.W.3d at 343–44; Rolle, 527 S.W.3d at 416; Mauldin, 428 S.W.3d

at 266–67. Thus, to establish that modification was appropriate in this case, the

Department only had to meet the requirements of Family Code section 156.101,

which sets out the standard of proof for modifying a conservatorship order. See TEX.

FAM. CODE ANN. 156.101(a); In re V.L.K., 24 S.W.3d at 343 (holding that, in

modification proceedings in which parties request jury trial, trial court should

instruct jury by tracking language of section 156.101 and should not apply

presumption set out in section 153.131); In re S.A.H., 420 S.W.3d at 917 (noting that

section 156.101 “contains no express reference to a parental presumption”); In re

S.E.K., 294 S.W.3d 926, 928–29 (Tex. App.—Dallas 2009, pet. denied) (noting that

supreme court concluded in In re V.L.K. that “the presumption in section

15[3].131(a) that a parent should be appointed as sole managing conservator or both

parents as joint managing conservators did not apply in a modification proceeding

under chapter 156”). We conclude that the trial court did not err by failing to apply


                                         33
section 153.131’s presumption in this case to retain Mother as a joint managing

conservator over the children.

      We overrule Mother’s second issue.

                      Requirement of Supervised Visitation

      Finally, in her third issue, Mother contends that the trial court abused its

discretion in restricting her visitation with the children to supervised visitation

because no evidence in the record supports this drastic restriction.

A.    Governing Law

      The best interest of the child is always the primary consideration in

determining issues relating to possession of and access to the child. TEX. FAM. CODE

ANN. § 153.002. The Family Code further provides that there is a rebuttable

presumption that a standard possession order “provides reasonable minimum

possession of a child for a parent named as a possessory conservator or joint

managing conservator” and is in the best interest of the child. Id. § 153.252; see id.

§§ 153.3101–.317 (setting out terms of standard possession order). In determining

whether to depart from the standard possession order, the court may consider: (1) the

age, developmental status, circumstances, needs, and best interest of the child;

(2) the circumstances of the managing conservator and of the parent named as

possessory conservator; and (3) any other relevant factor. Id. § 153.256; In re A.D.,

474 S.W.3d 715, 730–31 (Tex. App.—Houston [14th Dist.] 2014, no pet.).


                                          34
      The trial court has broad discretion in fashioning restrictions on a parent’s

possession and access that are in the best interest of the child. In re H.D.C., 474

S.W.3d 758, 764 (Tex. App.—Houston [14th Dist.] 2014, no pet.); In re S.A.H., 420

S.W.3d at 928; see In re A.G., 531 S.W.3d 329, 333 (Tex. App.—Houston [14th

Dist.] 2017, no pet.) (“A trial court, however, may place conditions on a parent’s

access, such as supervised visitation, when it is in the child’s best interest.”).

However, the trial court abuses that broad discretion if it imposes restrictions on

possession and access that exceed those required to protect the best interests of the

child. In re H.D.C., 474 S.W.3d at 764; see TEX. FAM. CODE ANN. § 153.193 (“The

terms of an order that denies possession of a child to a parent or imposes restrictions

or limitations on a parent’s right to possession of or access to a child may not exceed

those that are required to protect the best interest of the child.”). The court does not

abuse its discretion if evidence in the record supports a finding that the restriction is

in the child’s best interests. In re H.D.C., 474 S.W.3d at 764; Moreno v. Perez, 363

S.W.3d 725, 738 (Tex. App.—Houston [1st Dist.] 2011, no pet.) (“When a court

modifies terms and conditions of an access and possession order, the record must

contain evidence in support of the terms of the modification—a bare recitation in the

court’s order that such modification is in the children’s ‘best interest’ is not

enough.”).




                                           35
B.    Analysis

      At the close of the modification hearing, the trial court named Lance and Ken

as Laura’s and Kevin’s sole managing conservators and named Mother as the

children’s possessory conservator. The trial court also ordered that Mother’s

possession of and visitation with the children be supervised by an adult mutually

agreeable to Mother and the children’s fathers, or, if the parties could not come to

an agreement, through the Harris County Domestic Relations Office.

      On appeal, Mother argues that the trial court abused its discretion by requiring

that her visitation with the children be supervised. She argues that no evidence was

presented that the children would be exposed to any risk of harm if her visitation

with the children were unsupervised. She argues that Benoit’s, Ken’s, and Lance’s

testimony that supervised visitation would be in the children’s best interest was

conclusory, as none of them provided a factual basis for why they believed

supervised visitation was necessary. Mother also argues that DFPS presented no

evidence concerning the nature and extent of her substance use and that her

substance use alone should not justify requiring that her visitation be supervised.

Mother points out that the evidence at trial was undisputed that she loved her

children and that they loved her, that everyone involved in the case believed that

Mother should continue to have contact with the children, and that both Ken and

Lance testified that they had no fears that Mother would harm the children.


                                         36
      As discussed above, DFPS presented evidence that Mother had problems with

substance abuse. She tested positive for PCP usage during the pendency of the case

and her last drug test in May 2018 demonstrated that she tested positive for

marijuana. Mother was unsuccessfully discharged from the Career and Recovery

substance abuse treatment program in May 2018, DFPS had no knowledge of

whether Mother had enrolled in a different substance abuse treatment program

following her discharge, and she never participated in any of the drug tests requested

by the Department. She also failed to participate in several of the classes and

programs required by her family service plan, and she made “threatening statements

about the folks in this case.” Benoit testified that these were the main considerations

why DFPS believed it was in the children’s best interest for their visitation with

Mother to be supervised. In addition, Mother expressed a willingness to defy a court

order requiring her to pay child support to Lance and Ken, testifying that she would

stop working entirely rather than contribute any of her earnings to the children’s

fathers for the children’s support if she no longer had primary custody over the

children.

      Although Benoit, Ken, and Lance all testified that they believed Mother loved

her children, that the children loved Mother, and that Mother should continue to have

contact with the children, DFPS also presented evidence demonstrating that Mother

had failed to take advantage of the programs available to assist her in promoting the


                                          37
best interest of either child and evidence raising concerns over Mother’s sobriety

and stability. Based on this record, we conclude the trial court reasonably could have

concluded that requiring Mother’s visitation to be supervised, whether by a

mutually-agreeable adult or by the Harris County Domestic Relations Office, was

necessary to protect the children’s best interests. See In re H.D.C., 474 S.W.3d at

764 (stating that trial court abuses its discretion if it imposes restrictions on

possession and access that exceed those required to protect children’s best interests,

but court does not abuse its discretion if evidence in record supports finding that

restriction is in children’s best interest). We therefore hold that the trial court did not

abuse its discretion in requiring that Mother’s visitation with the children be

supervised.

       We overrule Mother’s third issue.

                                       Conclusion

       We affirm the modification orders of the trial court.




                                                 Evelyn V. Keyes
                                                 Justice

Panel consists of Justices Keyes, Higley, and Landau.

Justice Landau, concurring and dissenting.



                                            38
