                                      In The

                               Court of Appeals
                    Ninth District of Texas at Beaumont
                           ____________________
                              NO. 09-16-00250-CV
                           ____________________

                IN THE INTEREST OF T.G., K.W. AND K.C.


                    On Appeal from the 279th District Court
                           Jefferson County, Texas
                          Trial Cause No. F-224,949


                          MEMORANDUM OPINION

      In two issues, Appellant S.W. (Mother or Appellant) appeals the trial court’s

orders modifying the parent-child relationship as to three of her children, T.G.,

K.W., and K.C.1 We affirm.

                           PROCEDURAL BACKGROUND

      On September 9, 2015, the Department of Family and Protective Services

(the Department) filed an Original Petition for Protection of a Child, for
      1
        We use initials to protect the identity of the children. See Tex. R. App. P.
9.8. Other family members are also identified, as necessary, by initials or
designations based on their respective relationship with each child. See Tex. Fam.
Code Ann. § 109.002(d) (West 2014); Tex. R. App. P. 9.8.

                                         1
Conservatorship, and for Termination in Suit Affecting the Parent-Child

Relationship (the Original Petition) as to four of Mother’s children.2 In the Original

Petition, the Department alleged there was “an immediate danger to the physical

health or safety of the child[ren], or the child[ren] has/have been the victim[s] of

neglect or sexual abuse[]” and requested to be named temporary sole managing

conservator of the children without notice or an adversary hearing, as provided in

Chapter 262 and section 105.001(a)(1) and (h) of the Texas Family Code.

      The Original Petition included an Affidavit for Emergency Removal

(Affidavit) sworn by Runday Young (Young), an investigator with the Department.

According to the Affidavit, on or about September 4, 2015, the Department

received a report of Mother’s neglectful supervision of the children. The Affidavit

alleged that one of Mother’s neighbors called the police at about 7:42 a.m. because

Mother was screaming, yelling, and holding her daughter K.C., who was then three

years old, in a strong embrace. The Affidavit further alleged that Mother was

attempting to perform CPR and “was yelling for [K.C.] to start breathing, although


      2
        Of the three children who are the subject of this appeal, T.G. and K.W. are
boys, and K.C. is a girl. The Original Petition addressed a fourth child, a girl
whose initials are also K.W. and whose father is S.B. According to the record, S.B.
was granted temporary managing conservatorship of the fourth child on October 6,
2015. The proceedings and orders with respect to Mother’s fourth child are not
before us in this appeal; therefore, we do not address any allegations regarding the
fourth child in this opinion.
                                          2
[K.C.] was already breathing and nothing appeared to be medically wrong with

[K.C.]” An Emergency Medical Service (EMS) medic examined K.C. and found

nothing medically wrong with her. According to the Affidavit, Mother admitted to

a police officer and to EMS that she had smoked synthetic marijuana earlier that

morning and that she had smoked synthetic marijuana for a long time. The

Affidavit also stated that Mother “has extensive history with this agency which

dates back to 2007 - including cases of physical abuse and neglectful supervision

due to her drug abuse.”

      When Young arrived at the home, Mother had dilated pupils and a slow

response time and appeared to be under the influence of drugs. Mother was

informed that she would be required to “make a placement” for her four children

because of Mother’s recent drug use and to assure the children’s safety. According

to the Affidavit, the only placement Mother identified was her eighty-year-old

grandmother, who required home health care due to multiple health problems. The

Affidavit also alleged that Mother refused to provide contact information for the

children’s fathers because she did not want the children placed with their fathers.

The children were then placed in foster care, and the Department requested

temporary conservatorship of all four children “due to [Mother’s] continuous drug




                                        3
abuse and inability to be a protective parent [whereby] she places her children at

substantial risk of danger.”

         On September 22, 2015, the trial court entered orders naming L.G. as father

of the two boys, T.G. and K.W., and naming J.C. as the father of the girl K.C. On

October 8, 2015, and after a hearing, the trial court signed a temporary order in

which the Department was named temporary sole managing conservator of T.G.,

K.W., and K.C. Service plans for Mother as to T.G., K.W., and K.C. were filed

with the court on October 21, 2015, and February 29, 2016. On November 3, 2015,

the trial court entered a Status Hearing Order in which the court ordered T.G. and

K.W. placed with L.G. “as a monitored return[]” and pursuant to Department

Rules.

         On February 22, 2016, the Department filed a First Supplemental Petition

joining K.C.’s paternal grandparents, Mr. and Mrs. C., as parties. A report by the

Court Appointed Special Advocate (CASA) alleged that J.C., K.C.’s father, had

expressed his desire for K.C. to be placed with him or with his parents and that

J.C.’s parents had been providing care to K.C.

         The trial court held a permanency hearing on March 1, 2016. At the

permanency hearing, Tidra Henderson (Henderson), the CPS caseworker assigned

to this matter, testified that Mother had not completed certain items required by her

                                          4
service plan, namely anger management, psychiatric evaluation, and drug

treatment, and that Mother had not obtained stable housing. Mother testified that

she thought she had completed anger management and “everything else[]” except

for substance abuse treatment, and that she was then living with her grandmother.

The court advised Mother that failure to complete her service plan would “stand in

the way” of getting her children back. After the hearing, the court signed a

Permanency Hearing Order, setting a date for a Final Hearing. Attached to the

Permanency Hearing Order was a Psychological Report for Mother, prepared by a

licensed psychologist, which included the following:

             Current data does warrant significant concerns which would
      impede [Mother’s] daily functioning or her capacity to be an
      independent and effective parent. . . . it is highly suggested that
      [Mother’s] children continue to be placed under the care of a viable
      adult/caregiver, as [Mother] is unable to show that she is a
      psychologically capable, socially competent, financially independent,
      mature adult who is able to prioritize the welfare and safety of her
      children in all areas long-term.

                                 FINAL HEARING

      The court held a final hearing on June 28, 2016. At the beginning of the

hearing, counsel for the Department told the court “I believe that it’s agreed. We

just wanted to come and put what I understand to be the agreement and have the

parents indicate whether they agree.” After witnesses were sworn, the Department

tendered Exhibit 1 to the court, which contained three Reports to the Court
                                        5
completed by CASA and dated November 3, 2015, March 1, 2016, and June 28,

2016. The June 28, 2016 report (June report) noted that Mother had attended

“most” of the scheduled visits with her children but that Mother did not appear for

the family visit Mother had requested for K.C.’s birthday. The June report stated

that Mother had failed “at least one random drug test[]” and that Mother was

“unsuccessfully discharged” from an outpatient substance abuse treatment program

“due to non-compliance.” The June report also stated that Mother lacked stable

housing of her own, did not have stable employment, and had not completed anger

management. The June report concluded with the following recommendations:

       1. Permanent managing conservatorship of [T.G.] and [K.W.]
          transferred to their biological father, [L.G.], and dismissing them
          from this case.
       2. Permanent managing conservatorship of [K.C.] being transferred
          to her paternal grandparents, Mr. and Mrs. C[.], and dismissing her
          from this case.
       3. Court ordered visitation schedule for [T.G.], [K.W.] and [K.C.]
          with their mother . . . .
       4. The families continuing to arrange sibling visits between the
          children so they can maintain a relationship with each other.

Mother’s attorney responded “I have no objections, Your Honor. I have reviewed

it.”

       Henderson, the CPS caseworker, testified that she recommended that K.C.’s

paternal grandparents be appointed managing conservators of K.C. Henderson also

testified that T.G. and K.W. had been placed with their father L.G., that K.C. had
                                         6
been placed with her paternal grandparents for “quite some time[,]” and that the

children were well taken care of in these placements. Henderson also provided

recommendations concerning Mother’s visitation with the three children.

According to Henderson, the children are happy in their current placements and the

children liked seeing their mother.

        Mother testified at the hearing and agreed she had heard “the proposed or the

agreed order” that the trial court was going to sign. She also testified that she had

experienced “some problems” with L.G. concerning visitation but “everything has

been going fine[]” regarding K.C.’s paternal grandparents. Mother agreed she had

not completed everything included in her service plan, namely anger management

and drug treatment. At the time of the hearing, Mother was living with her sister.

        At the conclusion of the hearing, the trial court explained “the only loose

end[]” related to drug testing and the court proposed that

               . . . the managing conservators could require one drug test per
        month if they think there is reason to believe something is going on
        and that would be at her -- at her expense? If they want to -- you can --
        if you make a second -- you can make a second request, but it would be
        at your expense. If she fails it, though, she pays you back.

Mother, L.G., and K.C.’s paternal grandparents agreed that the plan sounded fair to

them.




                                           7
      The court encouraged the parties to “get along” and work out visitation

issues, noting that “I don’t want to mess this up because it sounds like you-all have

got an agreement, and it sounds like that everyone is reasonably happy with it.”

The court also addressed child support for the children. At the conclusion of the

hearing, the court stated:

             . . . I’ll find that -- that the proposal -- the CPS proposal is in the
      children’s best interest. So, [L.G.] will be the managing conservator of
      his kids [T.G. and K.W.]; and Mr. and Mrs. C[.] will be the managing
      conservators of the other child [K.C.].
             And the visitation as proposed is -- will be ordered, and the
      child support as I set out will be also ordered. And I’ll find it’s in the
      best interest of the children.

Mother’s only questions at the hearing pertained to visitation matters and to her

fourth child, K.W.

      Following the hearing, on June 30, 2016, the court signed a “Final Order in

Suit Affecting the Parent-Child Relationship as to [K.C.] Only” (Final Order as to

K.C.). The Final Order as to K.C. appointed K.C.’s paternal grandparents, Mr. and

Mrs. C., as permanent managing conservators and appointed Mother and J.C.,

K.C.’s father, possessory conservators of K.C. On June 30, 2016, the court also

signed a “Final Order in Suit Affecting the Parent-Child Relationship as to [T.G.]

and [K.W.] Only” (Final Order as to T.G. and K.W.). The Final Order as to T.G.

and K.W. appointed L.G., father of T.G. and K.W., as permanent managing

                                            8
conservator and appointed Mother as possessory conservator for T.G. and K.W.

Both Final Orders included an attachment specifying certain conditions for

Mother’s possession and access of the children and an attachment concerning child

support payments to be made by Mother. Mother appealed both Final Orders.

                                  ISSUES ON APPEAL

      Appellant presents two issues on appeal. In her first issue, Appellant argues

that the trial court erred in finding that appointment of Appellant as permanent

managing conservator would not be in the best interest of her children because the

evidence was legally and factually insufficient that Appellant would impair the

physical or emotional well-being of the children. In her second issue, Appellant

argues that the trial court erred in appointing L.G. as sole permanent managing

conservator of T.G. and K.W. because the evidence that there had been a material

and substantial change in circumstances since the rendition of the prior order was

legally and factually insufficient.

                              PRESERVATION OF ERROR

      The State argues that Appellant has waived her issues for appeal because she

consented or agreed to the final orders rendered in this case. Appellant did not file

a reply brief or otherwise address consent and waiver.




                                         9
      A party cannot generally appeal from a judgment to which it has consented

or agreed absent an allegation and proof of fraud, collusion, or misrepresentation.

See Authorlee v. Tuboscope Vetco Int’l, Inc., 274 S.W.3d 111, 119 (Tex. App.—

Houston [1st Dist.] 2008, pet. denied); Boufaissal v. Boufaissal, 251 S.W.3d 160,

161 (Tex. App.—Dallas 2008, no pet.); Chang v. Nguyen, 81 S.W.3d 314, 316 n.1

(Tex. App.—Houston [14th Dist.] 2001, no pet.) (citing Baw v. Baw, 949 S.W.2d

764, 766 (Tex. App.—Dallas 1997, no writ)). A party’s consent to a trial court’s

entry of judgment waives any error in the judgment, except jurisdictional error.

Chang, 81 S.W.3d at 316 n.1. To have a valid consent judgment, each party must

explicitly and unmistakably give its consent. Id. For a judgment to be considered

an agreed or consent judgment, either the body of the judgment itself or the record

must indicate that the parties came to some agreement as to the disposition of the

case. CommunityBank of Tex., N.A. v. Orange Cty. Ins. Brokerage, Inc., No. 09-14-

00033-CV, 2016 Tex. App. LEXIS 9860, at *14 (Tex. App.—Beaumont Sept. 1,

2016, pet. filed) (mem. op.) (citing DeClaris Assocs. v. McCoy Workplace Sols.,

L.P., 331 S.W.3d 556, 560 (Tex. App.—Houston [14th Dist.] 2011, no pet.)). A

party who consents to an agreed judgment and fails to convey any withdrawal of

consent thereby stipulates to the fact-findings contained in the agreed judgment

and waives her ability to challenge those findings for legal and factual sufficiency.

                                         10
See Gonzalez v. Wells Fargo Bank, N.A., 441 S.W.3d 709, 714 (Tex. App.—El

Paso 2014, no pet.).

       At the final hearing, the Department’s attorney notified the court that an

agreement had been reached and that the plan was to name L.G. as permanent

managing conservator of his sons T.G. and K.W., and the Department caseworker

added that Mr. and Mrs. C., J.C.’s parents and K.C.’s grandparents, would be

named permanent managing conservators of K.C. After the Department’s attorney

informed the court of an agreement and tendered the CASA reports into evidence,

Mother’s attorney stated “I have no objections, Your Honor. I have reviewed it.”

On direct examination, Mother’s own attorney asked Mother “you’ve heard the

proposed or the agreed order that the Court is going to sign[,]” and Mother replied

“[c]orrect.” At the conclusion of the hearing, the court stated “it sounds like you-all

have got an agreement, and it sounds like that everyone is reasonably happy with

it.”

       We conclude that the record indicates that the parties came to an agreement

as to the case’s disposition and that Mother agreed to the trial court’s final orders

as articulated at the final hearing by the attorney and the caseworker for the

Department. See CommunityBank of Tex., N.A., 2016 Tex. App. LEXIS 9860, at

*14. Nothing in the record shows that Mother withdrew consent or agreement to

                                          11
the final orders. The record indicates that Mother understood and agreed to the

final orders, did not withdraw her consent, and on appeal, she does not raise

jurisdictional error, fraud, collusion or misrepresentation. Therefore, we conclude

she has waived error regarding the items she now seeks to raise in this appeal. See

Authorlee, 274 S.W.3d at 119; Chang, 81 S.W.3d at 316 n.1.

                          SUFFICIENCY OF THE EVIDENCE

      Nevertheless, even if Appellant had not otherwise waived error for appeal,

based upon a review of the entire record we also overrule both of Appellant’s

issues because we cannot say that the trial court abused its discretion. The trial

court’s decision was neither arbitrary nor unreasonable.

      In her first issue on appeal, Appellant argues that the trial court erred in

finding the appointment of Mother as primary managing conservator would not be

in the best interest of her children and that the evidence was legally and factually

insufficient that Mother would impair the physical or emotional well-being of her

children. Appellant argues that the Department did not satisfy its burden of proof

because it “never established how the Appellant had endangered the well[-]being




                                        12
of her minor children[]” and that the trial court made no findings of fact or

conclusions of law.3

      Trial courts have wide discretion to determine a child’s best interest,

including issues of custody, control, possession, and visitation. Perez v. Williams,

474 S.W.3d 408, 423 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (citing

Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982) and Holley v. Holley, 864

S.W.2d 703, 706 (Tex. App.—Houston [1st Dist.] 1993, writ denied)).

Accordingly, we review a trial court’s decision regarding the conservatorship of a

child for an abuse of discretion. In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007). A

trial court does not abuse its discretion “as long as some evidence of a substantive

and probative character exists to support [its] decision.” Perez, 474 S.W.3d at 423.

We will reverse a trial court’s determination of conservatorship only if a review of

the entire record reveals that the trial court’s decision was arbitrary or

unreasonable. See J.A.J., 243 S.W.3d at 616; Patterson v. Brist, 236 S.W.3d 238,
      3
         The record includes no request filed by any party for findings of fact and
conclusions of law, nor do the briefs recite that any request was made. A trial court
shall file findings of fact and conclusions of law within twenty days after a timely
request is filed. See Tex. R. Civ. P. 296, 297. If there are no findings of fact or
conclusions of law filed, we presume all factual disputes were resolved in favor of
the trial court’s ruling, and all findings necessary to support the judgment will be
implied, provided they are supported by the record. See BMC Software Belg., N.V.
v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002); Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990); Sonnier v. Sonnier, 331 S.W.3d 211, 214 (Tex. App.—
Beaumont 2011, no pet.).
                                         13
239-40 (Tex. App.—Houston [1st Dist.] 2006, pet. dism’d). We must view the

evidence in the light most favorable to the trial court’s decision and indulge every

legal presumption in favor of its judgment. See Trammell v. Trammell, 485 S.W.3d

571, 575 (Tex. App.—Houston [1st Dist.] 2016, no pet.).

      The factfinder determines the weight to be given to the testimony and to

resolve any conflicts in the evidence. Chavez v. Chavez, 148 S.W.3d 449, 457

(Tex. App.—El Paso 2004, no pet.) (citing Lide v. Lide, 116 S.W.3d 147, 151

(Tex. App.—El Paso 2003, no pet.)); In re R.W., 129 S.W.3d 732, 742 (Tex.

App.—Fort Worth 2004, pet. denied).

      In an abuse of discretion review, legal and factual insufficiency are not

independent grounds for asserting error but are merely relevant factors in assessing

whether a trial court abused its discretion. See Trammell, 485 S.W.3d at 575;

Patterson, 236 S.W.3d at 240 (“Sufficiency challenges are incorporated into an

abuse of discretion determination.”) (citing McGuire v. McGuire, 4 S.W.3d 382,

387 n.2 (Tex. App.—Houston [1st Dist.] 1999, no pet.)). Our review of a legal

sufficiency issue requires us to consider only the evidence and inferences that tend

to support the finding, disregarding all evidence and inferences to the contrary.

Trammell, 485 S.W.3d at 575 (citing Vannerson v. Vannerson, 857 S.W.2d 659,

666 (Tex. App.—Houston [1st Dist.] 1993, writ denied)). If there is any evidence

                                        14
of probative force to support the finding, that is, more than a mere scintilla, we will

overrule a challenge to legal sufficiency. Id. In reviewing a factual sufficiency

issue we must consider, weigh, and examine all of the evidence that supports and

contradicts the finding. Id. We engage in a two-step inquiry asking: (1) did the trial

court have sufficient information upon which to exercise its discretion, and (2) did

the trial court err in its application of discretion? See Chavez, 148 S.W.3d at 456

(citing Hodson v. Keiser, 81 S.W.3d 363, 367 (Tex. App.—El Paso 2002, no pet.)

and Lide, 116 S.W.3d at 151). The traditional sufficiency inquiry applies to the

first question. Id. at 456-57. Once we have determined whether sufficient evidence

exists, we must then decide whether the trial court made a reasonable decision, that

is, whether the ruling was arbitrary or unreasonable. Id. at 457.

      Texas law requires that, in determining the issues of conservatorship and

possession of and access to the child, the best interest of the child shall always be

the primary consideration of the court. Danet v. Bhan, 436 S.W.3d 793, 796 (Tex.

2014) (citing Tex. Fam. Code Ann. § 153.002). Courts have generally considered

nine non-exclusive factors set out in Holley v. Adams in determining the best

interest of the child, which include (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

                                          15
individuals seeking custody, (5) programs available to assist these individuals to

promote the best interest of the child, (6) the plans for the child by these

individuals or by the agency seeking custody, (7) the stability of the home or

proposed placement, (8) the acts or omissions of the parent which may indicate

that the existing parent-child relationship is not a proper one, and (9) any excuse

for the acts or omissions of the parent. See Patterson, 236 S.W.3d at 240 (citing

Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976)). The trial court has wide

latitude in determining the best interests of a child. Gillespie, 644 S.W.2d at 451. A

finding that appointment of a parent as managing conservator would significantly

impair the child’s physical health or emotional development is governed by a

preponderance-of-the-evidence standard. See J.A.J., 243 S.W.3d at 616 (citing Tex.

Fam. Code Ann. § 105.005 and Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex.

1990)).

      The Affidavit attached to the Department’s Original Petition reported that,

when police and EMS responded to a call at Mother’s home on September 4, 2015,

Mother admitted she had used synthetic marijuana earlier that day and had used

synthetic marijuana for a long time. The Affidavit described Mother’s “extensive

history” with the Department dating back to 2007, including cases of physical

abuse and neglectful supervision due to Mother’s drug abuse. The record includes

                                         16
a service plan for Mother as to her children T.G., K.W., and K.C., which was

signed by Mother and filed with the trial court on October 21, 2015. At the final

hearing on June 28, 2016, Mother admitted she had not completed anger

management or drug treatment. A June 28, 2016 CASA report stated that Mother

had failed “at least one random drug test[]” and that Mother was “unsuccessfully

discharged” from an outpatient substance abuse treatment program “due to non-

compliance.” The June CASA report also stated that Mother lacked stable housing

of her own. The January 2016 psychological report concerning Mother stated in

part that Mother “is unable to show that she is a psychologically capable, socially

competent, financially independent, mature adult who is able to prioritize the

welfare and safety of her children in all areas long-term.”

      L.G. testified at the final hearing that often, when he had made arrangements

with Mother for her to visit T.G. and K.W., Mother would not show up. K.C.’s

paternal grandfather testified that he and his wife were “fine[]” with the plan

regarding conservatorship. Henderson, the CPS caseworker, testified at the final

hearing that T.G., K.W., and K.C. were happy and well taken care of in their

current placements. The guardian ad litem for the children also testified at the final

hearing as follows:

             . . . I’ve visited with the children and I’m in agreement with this
      plan. I think that, you know, they -- they love their mom. But they -- I
                                         17
      know that they like the placements that they’re in right now and the
      situations that they’re in right now. So, I think it’s a good thing.

      After reviewing the entire record, we conclude that the evidence is legally

and factually sufficient for the trial court to have concluded by a preponderance of

the evidence that it was in the best interest of the children for L.G. to be appointed

permanent managing conservator of T.G. and K.W. and for Mr. and Mrs. C. to be

appointed permanent managing conservator of K.C. The trial court did not abuse

its discretion, and we overrule Appellant’s first issue on appeal.

      In her second issue on appeal, Appellant argues that the trial court erred in

appointing L.G. as sole managing conservator of T.G. and K.W. because

“circumstances have materially and substantially [] changed since the rendition of

the prior order[.]” Appellant argues L.G. had not played a major role in his

children’s lives for years, that L.G. cannot support his children financially, and that

“there is a pending case with [the] Texas Attorney General office involving [L.G.]

and Appellant in regard to child support.”

      Appellant contends that there is a rebuttable presumption that appointment

of parents as joint managing conservators is in the best interest of the child. See

Tex. Fam. Code Ann. § 153.131(b) (West 2016). Section 153.131(a) also provides

in relevant part that


                                          18
            . . . 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.

Id. § 153.131(a). To rebut the presumption that a child should remain with a

parent, a nonparent seeking managing conservatorship of a child must prove by a

preponderance of the evidence that awarding custody to the parent would

significantly impair the child’s physical or emotional development. Id. A

nonparent must also show the appointment of the parent as managing conservator

would not be in the child’s best interest. Id. § 153.002.

      Citing to In re V.L.K., 24 S.W.3d 338, 339-40 (Tex. 2000), the Department

argues that

            . . . the case involving K.C. is an original proceeding subject to
      the parental presumption found in Tex. Family Code § 153.131[], and
      the case involving T.G. and K.W. is a modification under Chapter
      156, and therefore is not subject to the parental presumption.

In V.L.K., the Court held that “the parental presumption applies only in original

custody determinations and does not apply in a modification suit.” Id. The Court

also explained that “under Chapter 153, the nonparent can rebut the parental

presumption by showing that the appointment of the parent would significantly




                                          19
impair the child’s health or development.” Id. at 341-42 (citing Brook v. Brook,

881 S.W.2d 297, 298 (Tex. 1994)).

      Neither Appellant nor Appellee cite to the record or otherwise identify a

prior order concerning conservatorship of T.G. and K.W. See Tex. R. App. P.

38.1(i). Neither the Department’s Original Petition nor its First Supplemental

Petition sought a modification under section 156.101. The Final Orders from which

Appellant appeals do not refer to any prior orders or to any modifications of prior

orders.

      Appellant also fails to explain how the trial court erred in applying the

parental presumption as to conservatorship of T.G. and K.W. See Tex. R. App. P.

38.1(i). The Final Order as to T.G. and K.W. appointed L.G. as sole managing

conservator of T.G. and K.W., and because L.G. is the father of T.G. and K.W., it

is unnecessary to determine whether the Department overcame the parental

presumption because a parent was, in fact, appointed sole managing conservator of

T.G. and K.W. See Tex. Fam. Code Ann. § 153.131(a). Furthermore, we need not

decide whether the presumption should apply in this matter because “[a] court’s

primary consideration in any conservatorship case ‘shall always be the best interest

of the child.’” See V.L.K., 24 S.W.3d at 342 (citing Tex. Fam. Code Ann.

§ 153.002).

                                        20
       We understand the remainder of Appellant’s second issue to re-urge her

argument that the evidence is not sufficient to support the trial court’s final order

as to T.G. and K.W. In particular, Appellant argues that the record includes

evidence that L.G. lacked employment or income. Appellant also argues that the

record indicates L.G. “had a history of being a user of illegal drugs.” At the final

hearing, Mother testified that L.G. owed more than $12,000 in child support, and

the court responded that L.G. would have to pay Mother what he owed. Also at the

final hearing, no witness testified that L.G. then had any substance abuse problems,

but Mother testified that she had not completed substance abuse treatment.

       We have already addressed Appellant’s sufficiency argument above. After

reviewing the entire record, we conclude that the evidence is legally and factually

sufficient to support the final orders as to all three children and that the trial court

did not abuse its discretion. We overrule Appellant’s second issue on appeal.

       Having overruled Appellant’s issues on appeal, we affirm the orders of the

trial court.

       AFFIRMED.


                                                      _________________________
                                                         LEANNE JOHNSON
                                                               Justice


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Submitted October 13, 2016
Opinion Delivered December 8, 2016

Before Kreger, Horton, and Johnson, JJ.




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