Opinion filed August 29, 2014




                                      In The


        Eleventh Court of Appeals
                                   __________

                                No. 11-13-00252-CV
                                   ____________


                 IN THE INTEREST OF J.L.C., A CHILD



                      On Appeal from County Court at Law
                                Brown County, Texas
                         Trial Court Cause No. 00-01-005



                      MEMORANDUM OPINION
      Appellants, Jimmy and Carla, appeal a modification order in which the trial
court removed them as joint managing conservators of their grandson, J.L.C. In
six issues, Jimmy and Carla challenge the evidence to support the trial court’s
ruling. We affirm.
      Jimmy and Carla are the maternal grandparents of J.L.C. Their daughter,
Prissi, is J.L.C.’s mother. J.L.C.’s father relinquished his parental rights. When
Prissi married in 2005, Prissi and Jimmy and Carla agreed to be joint managing
conservators of J.L.C. with Prissi having the right to determine the child’s primary
residence. Carla testified that they reached this agreement so that the child would
be covered by Jimmy’s insurance. J.L.C. was six years old at that time. Although
the order contained a possession schedule, the parties agreed to their own fifty-fifty
possession arrangement.
      In 2011, Jimmy and Carla petitioned for a modification in which they asked
to be named J.L.C.’s managing conservators with the right to designate his primary
residence. Prissi counter-petitioned and asked the trial court to remove Jimmy and
Carla as joint managing conservators.         The trial court issued a temporary
restraining order in which Prissi was ordered not to remove J.L.C. from Jimmy and
Carla’s possession and not to withdraw him from school.
      The trial court held a hearing in October 2012 to determine issues regarding
managing conservatorship. Jimmy and Carla sought to establish that they should
be the managing conservators with the right to designate J.L.C.’s primary
residence because of Prissi’s history of abusive relationships and because she
moved frequently. Prissi had asked the court to remove Jimmy and Carla as joint
managing conservators, and it was her position that Jimmy and Carla continually
undermined her ability to set boundaries and to discipline her child.
      During the hearing, Prissi testified that she would take away J.L.C.’s
privileges when he was failing a class and would only grant those privileges again
once J.L.C. was passing. Jimmy and Carla admitted that they allowed J.L.C. to
play video games when Prissi had grounded him from playing video games, but
Carla explained that she thought being grounded for six weeks “[was] a bit
excessive.” When asked if she and Jimmy supported Prissi when she grounded
J.L.C., Carla said, “Not for six weeks at a time, no, ma’am, I [d]on’t.” When asked
if they allowed J.L.C. to play video games or play with friends when he was

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grounded by Prissi, Jimmy said, “What she does in her house is her business.
What I do in my house is my business.”
       When J.L.C. met with the trial judge in chambers during the October 2012
hearing on temporary orders, he told the trial court that Jimmy and Carla took
away his phone when he got into trouble. The judge asked J.L.C. whether his
punishments ever lasted more than a day, and J.L.C. said that it depended on what
he did. When asked to describe a recent example, however, J.L.C. said, “Well,
nothing lately.”
       Jimmy testified that J.L.C. was disciplined but explained that “you don’t
discipline [a child with ADHD] the same way you do a child that doesn’t have it”
and that he had “read countless books on this and so forth.” Jimmy did not believe
that a child with ADHD should be put in the corner or spanked because “they take
it as that you are being aggressive towards them.” Jimmy and Carla instead
explain their expectations and take away J.L.C.’s phone and television privileges.
Carla testified that “we have decided that when [J.L.C.] is mad at us, or we are
mad[ ] at him, we will just go to separate rooms until we get calm, and then we’ll
talk.” Carla said, “Usually what happens is, I tell him, ‘You go to your room until
you calm down and can talk to me correctly.’ And, when he does calm down, he
comes and apologizes, because his anger is not at me, but he is taking it out on
me.”
       Prissi testified that J.L.C. is angry and described his behavior as “unruly.”
J.L.C. takes medication for ADHD and has issues with anger management. Jimmy
had been called by J.L.C.’s school on two occasions, once after J.L.C. shoved
another child and once after J.L.C. traded with another student for a knife.
Another time, J.L.C. destroyed property in the apartment complex, and Prissi
grounded him. When Prissi tried to talk to J.L.C. about why he was angry, J.L.C.
said that he hated Prissi and her boyfriend and that he had tried to commit suicide.

                                         3
Prissi called the police. Mental health authorities recommended that J.L.C. be
admitted for at least one week for behavioral health observation. Jimmy and Carla,
however, checked him out after five days. Jimmy claimed that J.L.C.’s doctor and
caseworker “could not give me any reasons to hold him any longer. And so, he
was released to us.” According to Prissi, Carla told her that J.L.C. threatened to
throw a rock through the window and run away if they did not take him home.
      At one point, because J.L.C. had been lying, had been manipulative, and had
said that he would rather live in foster care, Prissi took J.L.C. to visit the Cherokee
Home for Children. Prissi testified that Cherokee was a home for children who
have anger management issues and mental illnesses. Prissi described J.L.C.’s
behavior at that time and said that J.L.C. had threatened to beat up other children,
to kill other children, and to beat up Prissi. On one occasion, J.L.C. swung a golf
club at Prissi, but she caught it before it hit her. Prissi arranged to leave J.L.C. at
Cherokee for thirty days, but Jimmy and Carla picked up J.L.C. and took him back
to their house within twenty-four hours. Prissi checked him into Cherokee on two
different occasions, and at the hearing, the parties ardently contested the reasons
for placing him there. Jimmy and Carla claimed that J.L.C. got in the way of
Prissi’s relationships with men. Prissi claimed that J.L.C.’s behavior was out of
control.
      It was uncontested, however, that J.L.C. cursed at Prissi and at Jimmy and
Carla. Prissi testified that she did not tolerate that behavior and disciplined J.L.C.
but that Jimmy and Carla allowed him to curse. J.L.C. had also called Jimmy and
Carla mean, fat, and old.      When questioned about how much she monitored
J.L.C.’s activities, Carla said that she could not monitor his Facebook account
because she could not see everything that he posted. Carla also said that she tried
to look at J.L.C.’s text messages on his cell phone but that his phone was “too
advanced” for her to operate. The record shows that J.L.C. looked at pornography

                                          4
on Jimmy and Carla’s computer and watched inappropriate movies late at night
after they went to bed. There was uncontroverted testimony that Jimmy and Carla
bought a video game for J.L.C. in which the characters stole cars, ran over
pedestrians, killed people, killed police officers, and raped women.
      When Prissi dated a man named Mike, J.L.C. once called Mike a “Magid,”
which he said was “[a] male a-- grabber including d--k.” Mike picked up J.L.C. by
the straps on his backpack and asked J.L.C. why he would call him that name.
Prissi said that J.L.C. would not answer and that Mike “just set him back down and
walked away.” J.L.C. immediately called Jimmy and Carla. Carla picked him up
that night. J.L.C. told Jimmy and Carla that Mike had put him against the wall
after picking him up by his backpack straps. J.L.C. had a scratch across his chest
and a bruise.    When Jimmy took J.L.C. to his counseling appointment the
following day, J.L.C. told the counselor what he had told Jimmy and Carla. The
counselor advised Jimmy to file a police report. When Jimmy relayed J.L.C.’s
account to the police officer, Jimmy admitted that J.L.C. tended to exaggerate.
The following day, Prissi took J.L.C. to Cherokee. According to Prissi, Mike
never slammed J.L.C. against the wall.
      Prissi testified that she did not want J.L.C. to have weapons due to his anger
issues but that Jimmy bought him a pellet gun. J.L.C. also had knives and a
machete and had bought a .22 caliber handgun that he later traded for a deer-
hunting bow. A neighbor complained that J.L.C. was shooting at her house and at
her animals, and Jimmy and Carla asked her for proof. The neighbor could not
offer any. Jimmy called the police department and city hall and determined that
pellet guns were not regulated like guns that use gun powder. But, “to make peace
with the neighbors,” Jimmy told J.L.C. that he should just shoot the pellet gun in
the woods.



                                         5
      Carla testified at the hearing about her own mental health struggles and
admitted that she had attempted suicide in 2009. Carla explained that she was
beginning menopause, was not taking her medication correctly, did not understand
what was happening to her, and had an empty nest.          She also said that her
eleven-month-old granddaughter had been raped.         Carla received “intensive
inpatient” treatment for a week and then two weeks of out-patient treatment. Carla
learned that she was “co-dependent and an enabler.” Carla attempted suicide again
in 2010 because she was not seeing her counselor or implementing the things she
had learned through counseling. She testified that, at the time of the hearing, she
saw her medical doctor every three months and that this doctor oversaw her
medication.
      Jimmy and Carla claimed that Prissi’s life had been “less than stable”
because of several abusive relationships. Prissi married Ben when J.L.C. was four
years old. They were married for approximately one year, during which Ben
physically abused Prissi. Prissi divorced Ben when he “turned abusive” toward
J.L.C. Prissi then married Marcus, whom she divorced a little over a year later
when she discovered that Marcus had cheated on her. Next, Prissi began dated her
high school sweetheart, Teddy. After dating for two years, the relationship ended
when Teddy busted Prissi’s lip. Prissi began dating Mike in 2009, and they dated
for almost two years. She described Mike as verbally abusive. Prissi testified that
Mike was not physically abusive during their relationship but that she obtained a
protective order because he threw her across the room when she ended their
relationship.
      Prissi and Brett began dating in October 2011. Brett and Prissi grew up
together and had known each other most of their lives. Brett took J.L.C. hunting
and fishing and had introduced J.L.C. to his family. Brett had also taken J.L.C. to
his family’s property to “look for varmints” and do other “country kid stuff.”

                                        6
Prissi and Brett attended J.L.C.’s school functions, went out to eat for family
dinners, went to the movies, and went to an amusement park. J.L.C. and Brett also
liked to play video games together.
      When Brett began a one-year internship in New York, Prissi’s employer
allowed her to transfer to a photo studio there. After Prissi and Brett moved into
their two-bedroom apartment in New Jersey, Brett and J.L.C. began playing video
games with each other over the internet. J.L.C. talked to Brett about things like
J.L.C.’s new girlfriend. Carla testified that she liked Brett more than she liked any
of Prissi’s previous boyfriends.
      Jason Henry, a lifelong friend of Brett and Prissi, testified that Brett treated
J.L.C. like he was his own child and that Brett would never hit Prissi or J.L.C.
Henry described J.L.C. as well-mannered and respectful around Prissi, but Henry
testified that J.L.C. was disrespectful toward Jimmy and Carla and that they
undermined Prissi on occasion. As an example, Henry said that he and Brett went
to J.L.C.’s band concert and that, afterward, the group went out to eat and to
Henry’s apartment to play video games. J.L.C. became aggravated or moody later
that night and was disrespectful. Prissi tried to talk to J.L.C. about it after they
returned home, but J.L.C. locked himself in the bathroom and called Jimmy.
Jimmy picked up J.L.C., and J.L.C. was never disciplined.
      At the close of the October 2012 hearing, the trial court issued temporary
orders. The trial court granted Jimmy and Carla the right to possession of J.L.C.
through the remainder of the Fall 2012 semester, Christmas break, and during the
spring vacation break. The trial court granted Prissi the right to possession of
J.L.C. at all other times. The parties remained as joint managing conservators.
      The trial court held a final hearing in July 2013. According to the record,
J.L.C. had been grounded from his cell phone while living in New Jersey because
he was failing classes. J.L.C. hid his phone, told Jimmy and Carla that he hid it

                                          7
from Prissi, and told Prissi that he had lost it. Carla testified that she “went along
with” this story because she believed it was important for J.L.C. to have a cell
phone for safety. J.L.C. also sent pictures of a near-empty refrigerator to Jimmy
and Carla and told them that he did not always have enough to eat; Carla started
sending $20 to J.L.C. each week so that he would have money for food. Prissi
testified that the picture J.L.C. sent may have been taken right before she went to
the store and that she spends $600 on food each month. Prissi claimed that J.L.C.
lies and manipulates Jimmy and Carla and that they spoil him and send him home
rather than help her to parent.
      The trial court denied Jimmy and Carla’s request to be appointed as
managing conservators with the right to designate residency, and it granted Prissi’s
petition to remove Jimmy and Carla as joint managing conservators. The trial
court did not issue findings of facts or conclusions of law. In six issues on appeal,
Jimmy and Carla challenge the evidence to support the trial court’s ruling.
      We review a trial court’s decision to modify conservatorship for an abuse of
discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). A trial court
abuses its discretion when it acts arbitrarily or unreasonably or when it fails to
correctly analyze or apply the law. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 242 (Tex. 1985). It is not an abuse of discretion if some evidence of a
substantive and probative character exists to support the trial court’s decision.
Bates v. Tesar, 81 S.W.3d 411, 424–25 (Tex. App.—El Paso 2002, no pet.). The
factfinder is the sole judge of the credibility of the witnesses and the weight to be
given to the testimony. City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005).
Because the trial court is in the best position to observe the demeanor of the
witnesses, it is given great latitude in determining the child’s best interest. In re
Guardianship of C.E.M.-K., 341 S.W.3d 68, 80 (Tex. App.—San Antonio 2011,
pet. denied).

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      In their third and fourth issues, Jimmy and Carla contend that the trial court
failed to consider the wishes of the child because it did not conduct an in-chambers
interview and because the guardian ad litem was not present at the hearing due to
“‘miscommunication’ with the court.” Jimmy and Carla specifically argue in their
third issue that Section 153.009 of the Texas Family Code “imposes a duty upon
the court” to interview the child because of the use of the term “shall.” Prissi
argues that the trial court had discretion to deny Jimmy and Carla’s verbal request
for an in-chambers interview because “there is no application in the clerk’s
record.” We agree.
      According to Section 153.009(a), the trial court “shall interview in chambers
a child 12 years of age or older . . . to determine the child’s wishes as to
conservatorship” if a party, amicus attorney, or attorney ad litem for the child files
an application requesting an interview.       TEX. FAM. CODE ANN. § 153.009(a)
(West 2014).    Although the statute is mandatory and requires a trial court to
interview a child on the application of any party, it is not an abuse of discretion to
refuse to conduct an interview when there is no application on file.              See
Hamilton v. Hamilton, 592 S.W.2d 87, 88 (Tex. App.—Fort Worth 1979, no writ).
Even if Jimmy and Carla had filed an application, the failure to conduct an in-
chambers interview during the final hearing would have been harmless because the
record shows that the trial court and parties were all aware that J.L.C. preferred to
live with Jimmy and Carla, that the trial court had already interviewed J.L.C. in
chambers during the hearing on temporary orders, and that J.L.C. testified and was
cross-examined about his preference and the factual disputes. Jimmy and Carla’s
third issue is overruled.
      In their fourth issue, Jimmy and Carla argue that “[t]he Guardian ad Litem
should have been present at trial.” Section 107.002 of the Texas Family Code
establishes the “Powers and Duties of Guardian ad Litem for Child.”

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FAM. § 107.002. The legislature has given guardians ad litem the power to do
certain activities and requires them to do others.    Subsection (c) provides that a
guardian ad litem “is entitled to . . . attend all legal proceedings in the case.” Id.
§ 107.002(c). Section 107.002 does not require the attendance of the guardian ad
litem at all hearings, and Jimmy and Carla did not call the guardian ad litem as a
witness. While guardians ad litem have a right to be present, Jimmy and Carla cite
no authority and we find none that requires the trial court to ensure the appearance
of the guardian ad litem at a hearing. Even if we are incorrect, Jimmy and Carla
have not met their burden to show how the alleged error probably caused the
rendition of an improper judgment. See TEX. R. APP. P. 44.1(a). Accordingly,
Jimmy and Carla’s fourth issue is overruled.
      In their first two issues, Jimmy and Carla maintain that the trial court
committed reversible error when it applied the parental presumption because the
presumption does not apply to modification suits. Jimmy and Carla direct us to the
record where the trial court referenced the parental presumption when it issued the
temporary orders at the October 2012 hearing.
      The trial court’s comments are not findings of fact or conclusions of law,
and we cannot look to those statements as a substitute. In re W.E.R., 669 S.W.2d
716, 716 (Tex. 1984) (per curiam). When a trial court does not make findings of
fact and conclusions of law, as in this case, we must draw every reasonable
inference in favor of the trial court’s judgment that can be supported by the record.
See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). We will uphold the
trial court’s ruling if it is correct under any legal theory that is supported by the
evidence. Id.
      Nonetheless, when the appellate record includes the reporter’s record, the
implied findings are not conclusive and may be challenged for legal and factual
sufficiency of the evidence. Gainous v. Gainous, 219 S.W.3d 97, 103 (Tex.

                                         10
App.—Houston [1st Dist.] 2006, pet. denied). Jimmy and Carla challenge the
factual sufficiency of the evidence in their fifth and sixth issues, so we consider
these issues along with their first and second issues.
      Challenges to the sufficiency of the evidence are not independent grounds of
error in custody determinations but are relevant factors in assessing whether the
trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.—
Fort Worth 2002, pet. denied). In a suit to modify the parent-child relationship, the
traditional sufficiency standards of review overlap the abuse of discretion standard,
and appellate courts apply a two-prong analysis: (1) whether the trial court had
sufficient information upon which to exercise its discretion and (2) whether the
trial court erred in applying its discretion. Child v. Leverton, 210 S.W.3d 694, 696
(Tex. App.—Eastland 2006, no pet.); Zeifman v. Michels, 212 S.W.3d 582, 588
(Tex. App.—Austin 2006, pet. denied). In a factual sufficiency challenge, we
consider all of the evidence and set aside the findings only if they are so contrary
to the overwhelming weight of the evidence as to be clearly wrong or manifestly
unjust, conscience-shocking, or clearly biased. Cain v. Bain, 709 S.W.2d 175, 176
(Tex. 1986).
      Jimmy and Carla challenge the factual sufficiency of the evidence to support
the trial court’s determination that appointing Prissi as sole managing conservator
was in J.L.C.’s best interest because “[u]ndisputed evidence was presented by both
parties of the domestic violence and instability of the child’s mother.” Jimmy and
Carla detail the evidence of Prissi’s relationships with Ben, Teddy, and Mike. Our
review of the record shows that Prissi was married to Ben in 2004 when J.L.C. was
four years old, later dated Teddy for two years, and then dated Mike in 2009 and
2010. The record shows that she began dating Brett in 2011 and that, at the final
hearing, they had been dating for almost two years. There was no evidence that
any violence had ever occurred between Brett and Prissi or between Brett and

                                          11
J.L.C. Indeed, Carla testified that she liked Brett more than anyone Prissi had
previously dated. Brett’s friend testified that he had known Brett for more than
thirty years and that Brett treats J.L.C. “like his own son”; that he is “very, very
good with [J.L.C.]”; and that Brett is a “really good person to look up to.” Thus,
although there was evidence of past domestic violence and instability, there was no
evidence of violence in the two years prior to the modification order.
      Jimmy and Carla argue that, because the public policy in Texas is to
“provide a safe, stable, and nonviolent environment for the child,” it was an abuse
of discretion to remove them as conservators because “[t]he undisputed evidence
presented by Prissi in this case described an unstable home where the only constant
was changing schools regularly and bringing in abusive men.” Jimmy and Carla
argue that granting Prissi’s petition to remove them as joint managing conservators
“was so blatantly in conflict with the public policy of this state that the appellate
court must conclude that an abuse of discretion occurred.”
      Jimmy and Carla are correct that it is the public policy of this state that
children have a safe, stable, and nonviolent environment.                See FAM.
§ 153.001(a)(2). But it is also the public policy in Texas “that children will have
frequent and continuing contact with parents who have shown the ability to act in
the best interest of the child.” Id. § 153.001(a)(1). Although Prissi and J.L.C.
changed residences and school districts five times in eight years, the evidence
shows that the moves were because of Prissi’s abusive relationships. The record
also shows that, at the time of the final orders, Prissi had been in a stable
relationship for almost two years. Regardless of the stability of her home in the
past, the record shows that, at the time of the hearing, she had demonstrated the
ability to act in the best interest of the child. See id. § 153.001(a)(1). Moreover,
considering the evidence of Prissi’s relationship with Brett and their home with
J.L.C., we cannot conclude that the trial court’s decision to appoint Prissi as sole

                                         12
managing conservator violated the public policy of ensuring a “safe, stable, and
nonviolent environment.” See id. § 153.001(a)(2).
      A trial court may modify an order in a suit affecting the parent-child
relationship if the circumstances have materially and substantially changed and if
modification would be in the best interest of the child. FAM. § 156.101(a). We
review a trial court’s best interest finding with the aid of the Holley factors. See
Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976). These non-exhaustive
factors 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 individuals seeking custody,
(5) the plans for the child by these individuals, (6) the stability of the home, (7) the
acts or omissions of the parent that may indicate that the existing parent-child
relationship is not a proper one, and (8) any excuse for the acts or omissions of the
parent. Id.
      Although there is not evidence in the record as to every factor, it was clear
that J.L.C. preferred to live with Jimmy and Carla. Both homes appear to be
loving and supportive, so the second and third factors do not weigh in favor of
either party. Jimmy and Carla admitted that they do not support Prissi’s decisions
as to J.L.C.’s discipline and that J.L.C. calls Jimmy and Carla when he is in trouble
with Prissi. Moreover, evidence that Jimmy and Carla encouraged J.L.C. to lie to
Prissi about his cell phone is an indicator of an improper parent-child relationship.
      After reviewing the entire record and considering all of the evidence, we
cannot conclude that the trial court’s ruling was so contrary to the overwhelming
weight of the evidence that it was clearly wrong or conscience-shocking. See
Cain, 709 S.W.2d at 176. Accordingly, Jimmy and Carla’s first and second issues
on appeal, as well as their last two issues, are overruled.



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      We affirm the judgment of the trial court.




                                                   JIM R. WRIGHT
                                                   CHIEF JUSTICE
August 29, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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