




Affirmed and Opinion filed February 12, 2009







Affirmed and Opinion filed February 12, 2009.
 
 
 
In The
 
Fourteenth Court of
Appeals
_______________
 
NO. 14-07-00329-CV
_______________
 
IN THE INTEREST OF A.L.E.
 
                                                                                                                                               

On Appeal from the 245th District Court
 Harris County, Texas
Trial Court Cause No. 2000-22635
                                                                                                                                                
 
O P I N I O N
This appeal arises from a suit to
modify conservatorship of a minor child.  Appellant, Dawn Marie Robertson
Simmons (ADawn@), is the mother of thirteen-year-old A.L.E.; appellee, Gregory Chase
Edwards (AChase@), is the child=s father.  In three issues, Dawn appeals the trial court=s March 2, 2007 order awarding Chase
the right to establish their daughter=s primary residence, and requiring
Dawn to provide a Anegative@ drug and alcohol test to Chase, as a pre-condition to her
exercise of unsupervised possession of A.L.E.  We affirm.
 
                                                                              
 




BACKGROUND
During the early 1990s, Dawn and
Chase had a tumultuous relationship that was later described as having been Afraught with drugs.@  In fact, drug use was apparently
persistent throughout the unmarried couple=s four-year courtship.  Dawn had a
brief period of sobriety during her pregnancy with their daughter, A.L.E., who
was born in 1995, but she later resumed the use of drugs and alcohol.
The couple=s relationship ended shortly after
the birth of A.L.E., who thereafter lived with Dawn.  Chase, who has been sober
since March 1999, expressed the desire to remain involved in his daughter=s life.  In February 2001, the
parties reached a custody agreement in which they would be appointed as A.L.E.=s joint managing conservators.  Dawn
was given the right to designate the child=s primary residence, while Chase was
granted a standard possession order governing  his visitation with his
daughter.  Their agreement was approved by the trial court on February 19,
2001.
In April 2006, however, Chase sought
modification of the previous custody order by filing a petition in which he
sought to be appointed as A.L.E.=s sole managing conservator.  Chase
further requested that Dawn be denied visitation with A.L.E. or, alternatively,
that her periods of possession be supervised.  In support of these requests,
Chase alleged that Dawn was abusing drugs and alcohol, and was neglecting
A.L.E., while in possession of the child.    The trial judge ordered both
parents to submit to drug testing, psychological examination, and alcohol and
drug evaluation.  Dawn tested positive for cocaine on two separate occasions. 
After a two-day trial, the trial court granted Chase=s request to modify the previous
custody order.  Both parents remained as A.L.E.=s joint managing conservators;
however, the trial court modified its previous order giving Chase the right to
determine the child=s primary residence and taking that right from Dawn.




Dawn was given a standard possession
order under which she could exercise unsupervised possession.  However, she was
ordered to submit for drug testing for a period of three years, and if she were
to test positive for drugs or alcohol during that time, she could have only supervised
visitation with the child.
Dawn timely brought this appeal to
challenge, through three issues, the trial court=s modification of the previous
custody order and placement of conditions upon Dawn=s right to exercise unsupervised
possession of her daughter.  Specifically, she contends that the trial court
abused its discretion by (1) modifying the custody order absent proof of a substantial
and material change in circumstances, and (2) entering an unconstitutional and
unenforceable possession order that she contends deprives her of meaningful
access to her child.
                                                       STANDARD
OF REVIEW
Because a trial court has broad
discretion to decide the best interest of a child in family law matters such as
custody, visitation, and possession, we review a decision to modify
conservatorship for a clear abuse of that discretion.  See 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 clearly fails
to correctly analyze or apply the law.  See In re D.S., 76 S.W.3d 512,
516 (Tex. App.CHouston [14th Dist.] 2002, no pet.). 
We remain mindful that the trial
judge is best able to observe and assess the witnesses= demeanor and credibility, and to
sense the Aforces, powers, and influences@ that may not be apparent from merely
reading the record on appeal.  Niskar v. Niskar, 136 S.W.3d 749, 753
(Tex. App.CDallas 2004, no pet.).  Therefore, we defer to the trial court=s resolution of underlying facts and
to credibility determinations that may have affected its determination, and
will not substitute our judgment for the trial court=s.  George v. Jeppeson, 238
S.W.3d 463, 468 (Tex. App.CHouston [1st Dist.] 2007, no pet.).




Legal and factual insufficiency
challenges are not independent grounds for asserting error in custody
determinations, but are relevant factors in assessing whether the trial court
abused its discretion.  Niskar, 136 S.W.3d at 753; D.S., 76
S.W.3d at 516.  An abuse of discretion does not occur 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, 424B25 (Tex. App.CEl Paso 2002, no pet.).  We consider only the evidence most
favorable to the trial court=s ruling, and will uphold its judgment on any legal theory
supported by the evidence.  Worford v. Stamper, 801 S.W.2d 108, 109
(Tex. 1990); Niskar, 136 S.W.3d at 753B54.
                  MODIFICATION OF
PREVIOUS CONSERVATORSHIP ORDER
In an effort to ensure stability and
continuity for children, Texas law has imposed Asignificant hurdles@ before a conservatorship order may
be modified.  See Bates, 81 S.W.3d at 426; Jenkins v. Jenkins, 16
S.W.3d 473, 478 (Tex. App.CEl Paso 2000, no pet.).  Specifically, a trial court may
modify a conservatorship order if modification would be in the child=s best interest and Athe circumstances of the child, a
conservator, or other party affected by the order have materially and
substantially changed@ since the previous order.  Tex. Fam. Code Ann. ' 156.101 (Vernon 2008).  As a
threshold determination, then, the moving party must show a material and
substantial change in circumstances; otherwise, the petition must be denied.  See
Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.CAustin 2006, pet. denied).




In her first issue, Dawn challenges
the trial court=s express finding of a material and substantial change in
circumstances since the previous custody order.[1] 
She acknowledges that the trial judge was presented with evidence of her recent
drug and alcohol abuse.  However, she notes that she also had Asubstance abuse issues@ at the time of the 2001 custody
order.  She contends, then, that modification was inappropriate because her
circumstances have not significantly and materially changed in the intervening
years.  But modification is available if the child=s circumstances have materially and substantially
changed, even if the conservator=s have not.  See Tex. Fam. Code Ann. ' 156.101(1).  Here, Chase produced
evidence that, since 2001, A.L.E.=s circumstances have materially and
substantially changed as a product of Dawn=s substance abuse.[2]
In deciding whether a material and
substantial change of circumstances has occurred, a trial court is not confined
to rigid or definite guidelines.  See Zeifman, 212 S.W.3d at 593; In
re Z.B.P., 109 S.W.3d 772, 779 (Tex. App.CFort Worth 2003, no pet.).  Instead,
the court=s determination is fact-specific and must be made according to the
circumstances as they arise.  See Zeifman, 212 S.W.3d at 593; Wright
v. Wright, 610 S.W.2d 553, 555 (Tex. Civ. App.CHouston [1st Dist.] 1980, no writ). 
A non-comprehensive list of material changes, as described by other courts, can
include (1) marriage of one of the parties, (2) poisoning of the child=s mind by one of the parties, (3)
change in the home surroundings, (4) mistreatment of the child by a parent or
step-parent, or (5) a parent=s becoming an improper person to exercise custody.  See In
re Marriage of Chandler, 914 S.W.2d 252, 254 (Tex. App.CAmarillo 1996, no writ); Wright,
610 S.W.2d at 555.




As an initial matter, Dawn contends
that Chase did not establish the conditions that existed when the 2001 custody
order was entered; thus, she concludes that Chase could not, and did not,
demonstrate how those conditions changed.[3] 
See Zeifman, 212 S.W.3d at 589 (ATo prove that a material change in
circumstances has occurred, the petitioner must demonstrate what conditions
existed at the time of the entry of the prior order as compared to the
circumstances existing at the time of the hearing on the motion to modify.@).  However, the law does not
prescribe any particular method for a showing of changed circumstances, which
may be established by circumstantial evidence.  See Wright, 610 S.W.2d
at 554B55; T.A.B. v. W.L.B., 598
S.W.2d 936, 939 (Tex. Civ. App.CEl Paso), writ ref=d n.r.e., 606 S.W.2d 695 (Tex. 1980); Brown
v. Brown, 500 S.W.2d 210, 216 (Tex. Civ. App.CTexarkana 1973, no writ).  Even in
the absence of direct evidence of the conditions in 2001, the record
clearly shows that the facts that are relied upon as showing a material change
in circumstances, which are discussed below, occurred after the earlier custody
order.  See Brown, 500 S.W.2d at 216; In re J.A.R., No.
2-04-123-CV, 2005 WL 2839107, at *8 (Tex. App.CFort Worth Oct. 27, 2005, no pet.)
(mem. op.).
After reviewing the record, we
conclude that the trial court did not abuse its discretion by finding a
material and substantial  change in circumstances since the entry of the
previous custody order in February 2001.  The record is replete with evidence
that Dawn=s substance-abuse problems have significantly, and negatively, affected
A.L.E. since she came to reside with her mother.  
In late 2001, A.L.E. was diagnosed as
suffering from panic attacks, and was treated with anti-depressant medication. 
After Dawn decided to wean her daughter from the medication, Chase noticed that
A.L.E. began to exhibit symptoms similar to those that prompted her treatment
for panic attacks.  Then, in approximately 2004, A.L.E. cut her arms,
reportedly in response to Dawn=s drinking problems and abuse.  Dr. Jean Guez, a
court-appointed psychologist, opined that the cutting and panic attacks
represented Asignificant red flags.@  
In March 2006, Chase discovered a
journal that A.L.E. had written, in which she asked to be removed from Dawn=s house.  In her journal, A.L.E. also
stated that she was concerned about, and considered herself to be secondary to,
Dawn=s alcohol consumption.  She reported
that she had been exposed to marijuana and AJello shots@ while in Dawn=s care, and that she did not receive
much supervision from her mother.  The child also indicated that she did not
feel emotionally stable while she was in her mother=s care.




After discovering his daughter=s journal, Chase pressed her for more
details about Dawn=s alcohol abuse.  In April 2006, he was told that Dawn, after
becoming intoxicated, had screamed and thrown items (such as a cigarette
lighter) at A.L.E., and then left the house for extended periods of time. 
During one such drinking fit, Dawn yelled at A.L.E., threw the child=s computer and monitor across the
room, and then left the house with her then-boyfriend for the entire weekend,
during which time the child was left to be supervised by a high-school
student.  A.L.E. also stated that Dawn and her boyfriend had called her a Abitch.@  According to Chase, these incidents
were becoming more frequent, and were escalating to the point that the child
was Aliving in constant fear.@
In May 2006, after the trial court
ordered both parents to submit to drug testing, Dawn tested positive for
cocaine and cocaethylene.[4]  She again
tested positive for cocaine in October 2006.  Dawn has admitted that she
usually had five to six drinks at a time, and that her drinking has caused her
to suffer Aemotional problems.@  She denied Aregular@ cocaine use, although she acknowledged she had taken drugs
within twelve months of her August 2006 assessment by Karen McKibben Morris,
who completed a substance-abuse evaluation of both parties.  Ms. McKibben
testified at trial that Dawn is alcohol-dependent, borderline depressive, and
in need of treatment.  Dr. Guez agreed that Dawn needs treatment, and opined
that Dawn cannot care for herself adequately to maintain primary
conservatorship of A.L.E.  Thus, the record contains evidence indicating that
A.L.E.=s home environment has changed, and
that Dawn=s substance-abuse problems have rendered her unfit to exercise primary
custody of her daughter.  See Marriage of Chandler, 914 S.W.2d at 254; Wright,
610 S.W.2d at 555.




We conclude that at least some
evidence of a substantive and probative character exists to support the trial
court=s finding of a material and
substantial change in circumstances since the previous custody order.  See
Bates, 81 S.W.3d at 424B25.  Thus, after considering the evidence favorable to the
trial court=s ruling, we conclude that the trial court did not abuse her discretion
by modifying the 2001 custody order.  We overrule appellant=s first issue.
                                  CONDITIONAL
UNSUPERVISED POSSESSION
Dawn=s two remaining issues, which
overlap, arise from the trial court=s placement of conditions upon the
standard possession order.  See Tex. Fam. Code Ann. '' 153.311B.317 (Vernon 2008).  Initially, the
order permits Dawn to exercise unsupervised possession of her daughter. 
However, Dawn is to submit to drug testing for three years[5]
and, prior to exercising her scheduled periods of possession, she must present
the drug-test results to Chase.[6]  If those
results indicate a Apositive@ test for either drug or alcohol use, her periods of
possession thereafter are to be supervised by Aa program equal to the S.A.F.E.
program in Houston, Texas[.]@ In her second and third issues, Dawn argues that this
conditional possession order deprives her of due process and is unenforceable.
A.        Due
Process
The court=s possession order initially allows
Dawn to take unsupervised possession of A.L.E.  Dawn insists that,
before that provision can later be modified to require supervised visitation,
Chase should have to affirmatively request modification under section 156.101. 
Dawn contends, then, that the court=s Aself-modifying@ possession order deprives her of due
process because, as phrased, it violates the Family Code=s mandatory requirements of pleading
and proof before modification can be effected.




However, the record does not indicate
that Dawn=s due-process argument was presented to the trial court.  Therefore, she
has waived this complaint.  See In re L.M.I., 119 S.W.3d 707, 708 (Tex.
2003) (A[A]dhering to our preservation rules
isn=t a mere technical nicety; the
interests at stake are too important to relax rules that serve a critical
purpose.@); Lynch v. Port of Houston Auth.,
671 S.W.2d 954, 957 (Tex. App.CHouston [14th Dist.] 1984, writ ref=d n.r.e.) (AEven constitutional challenges not
expressly presented to the trial court by written motion, answer or other
response . . . will not be considered on appeal as grounds for reversal.@).  Requiring parties to preserve
their complaints in family-law cases furthers the legislative intent that such
cases be resolved expeditiously and with finality.  See L.M.I., 119
S.W.3d at 711; In re B.L.D., 113 S.W.3d 340, 354 (Tex. 2003); In re
K.R.S., No. 14-07-00080-CV, 2008 WL 2520812, at *2 (Tex. App.CHouston [14th Dist.] June 24, 2008,
no pet.) (mem. op.).  Accordingly, we overrule appellant=s due-process complaint, and turn our
attention to her argument that the court=s possession order deprives her of
meaningful access to A.L.E.
B.        Enforceability
of Possession Order
Dawn also claims that, under the
trial court=s modified order, her right to possession or access of A.L.E. is subject
to Chase=s Asole discretion.@  She therefore contends that the
possession order is unenforceable.  We disagree.




The public policy of Texas is to
ensure that children enjoy Afrequent and continuing contact with parents who have shown
the ability to act@ in their child=s best interest.  Tex. Fam. Code Ann.
' 153.001(a) (Vernon 2008).  However,
trial courts are permitted to place conditions on a parent=s visitation if necessary for the
child=s best interest.  See In re R.D.Y.,
51 S.W.3d 314, 324 (Tex. App.CHouston [1st Dist.] 2001, pet. denied); Hopkins v. Hopkins,
853 S.W.2d 134, 137B38 (Tex. App.CCorpus Christi 1993, no writ).  Thus, Texas appellate courts
have repeatedly held that limited visitation does not amount to deprived
visitation.  See Niskar, 136 S.W.3d at 756 (AWhen a trial court denies a parent
overnight visitations with the child, it has not denied the parent=s visitation rights.@); Beaupre v. Beaupre, 700
S.W.2d 353, 354B55 (Tex. App.CFort Worth 1985, writ dism=d) (holding that visitation provision
that temporarily limited appellant=s access did not constitute denial
of access); see also Malekzadeh v. Malekzadeh, No. 14-05-00113-CV, 2007
WL 1892233, at *16 (Tex. App.CHouston [14th Dist.] July 3, 2007, pet. denied) (mem. op.) (A>[W]e note that by restricting
appellant=s visitation with and possession of the child, the trial court has not
denied appellant his rights as parent.=@) (citation omitted).
Dawn did not contend at trial, nor
does she suggest on appeal, that the trial court could not have ordered
supervised visitation at the outset.[7]  Instead, her
complaint is that, because she must provide the drug-test results to Chase
before each period of possession, Dawn=s access to her child is therefore
subject to his discretion.[8]  We disagree
that the court=s order, which is specific and enforceable by contempt, confers any such
discretion to Chase.




A trial court may not give one parent
the unbridled discretion, unenforceable by contempt, to decide whether the
other parent may have access to, or possession of, her children.  See Roosth
v. Roosth, 889 S.W.2d 445, 452 (Tex. App.CHouston [14th Dist.] 1994, writ
denied); In re A.P.S., 54 S.W.3d 493, 498B99 (Tex. App.CTexarkana 2001, no pet.).  Thus, when
a court places restrictions or conditions on a conservator=s possession rights, the court must
specifically define those terms in its decree.  A.P.S., 54 S.W.3d at
499; Hale v. Hale, No. 04-05-00314-CV, 2006 WL 166518, at *3 (Tex. App.CSan Antonio Jan. 25, 2006, pet.
denied) (mem. op.).  The judgment must state, in clear and unambiguous
language, what is required for the conservator to comply, and the terms must be
specific enough to permit the conservator to enforce the judgment by contempt. 
See Roosth, 889 S.W.2d at 452.  We conclude that the trial court=s order meets both of these
requirements.
1.         Specificity
For a period of three years, Dawn is
ordered to present to a specific drug-testing facilityCthe National Screening Center, in
HoustonCand to submit to three drug tests: a
urine analysis, an EtG test, and a hair follicle test.  The order also
specifies when Dawn must comply:  urine analysis must be completed no
more than forty-eight hours prior to each period of Dawn=s possession of A.L.E. and,
initially, the EtG and hair follicle tests must both take place on the 12th day
of each month.  After the first year of testing, if Dawn=s drug tests remain negative for
drugs and alcohol, she will submit for EtG and hair follicle tests on a less
frequent basis.[9]  As long as
she continues to test negative for drugs and alcohol, she may exercise
unsupervised visitation with her daughter.  If, by contrast, the test results
indicate a positive finding for drugs or alcohol, Dawn=s periods of possession thereafter
must be supervised:
In the event any of [Dawn=s] urine, EtG or hair drug testing come back with a
positive finding for drugs or alcohol . . . [Dawn=s] periods of possession shall immediately become supervised by The Kid=s Exchange in Austin, Texas or a program equal to the
S.A.F.E. program in Houston, Texas for a period of one year or until drug tests
indicate [Dawn] is totally clear of all drugs and alcohol for a period of one
year.
 
Thus, the court=s order clearly and unambiguously
states what Dawn must do to have unsupervised access to A.L.E.




The court=s order is not unlike one that was
upheld by the Third Court of Appeals in 2005.  See In re L.M.M., No.
03-04-00452-CV, 2005 WL 2094758 (Tex. App.CAustin Aug. 31, 2005, no pet.) (mem.
op.).  There the trial court conditioned the appellant=s possessory rights on her
continuation of Aa regular course of psychological treatment@ with a specific therapist.  See
id. at *2.  The court also provided for her possession to increase if
certain conditions were met.  See id.  On appeal, however, the appellant
contended that the trial court=s order deprived her of specific, enforceable periods of
possession.  See id. at *9.  The Austin Court of Appeals disagreed:
The June 2004 order stated that [appellant] had to (1)
begin treatment with Dr. Lowry, (2) notify all the parties of such compliance,
and (3) continue that treatment for thirty days.  At that point, she was
entitled to supervised visitation at Kids Exchange on specified dates and to
telephone contact with the children.  Thereafter, beginning in August 2004, as
long as she continued treatment with Dr. Lowry, [appellant] was entitled to
increased periods of possession and accessCwith
very specific times, dates, and locations provided forCculminating in a December 2004 return to standard
possession.  Accordingly, the terms of what [appellant] was required to do
in order to obtain and enhance her rights of possession and access were
unambiguous, specific, and enforceable.
 
Id. at *10 (emphasis added).  Here, the trial court
crafted a possession order that carefully detailed each of the specific
requirements with which Dawn must comply if she is to have unsupervised
visitation of A.L.E.  We conclude that the order meets the Aspecificity@ requirements for a valid possession
order.
2.         Enforcement
through Contempt




Dawn may also enforce this order, if
necessary, by contempt.  The objective test resultsCseveral of which appear in the
appellate recordCclearly specify whether the sample was ANEGATIVE@ or APOSITIVE@ for each tested-for drug.[10] 
Chase need not construe or interpret the results; instead, his only involvement
is to receive the results from Dawn prior to each period of her possession of
A.L.E., and to confirm whether the results recite any positive findings.  Thus,
by briefly reviewing the test resultsCa task that could be accomplished by
almost any laypersonCChase and Dawn can readily verify whether Dawn is entitled to
unsupervised possession.
The order leaves no room for Chase to
exercise any discretion, and Dawn needs no agreement from him to exercise her
visitation rights as set out in the court=s ruling.  Thus, the order is unlike
those that other courts have found to be unenforceable.  See Roosth, 889
S.W.2d at 452 (reversing order that required mother=s mutual agreement to father=s possession of children); A.P.S.,
54 S.W.3d at 498 (reversing order stating, AThe possession periods of the
children by [appellant] are to be at reassonable [sic] times and places as
determined by [appellee]@); Hale, 2006 WL 166518, at *1, *3 (reversing
non-specific order that prevented father to see daughter Auntil a therapist recommends
visitation@).  That is, if Dawn fully complies with the court=s order and is nonetheless improperly
precluded from taking unsupervised possession of A.L.E., she may enforce the
court=s order through contempt proceedings.
We conclude that the trial court did
not abuse its discretion by entering a specific, enforceable possession order
that placed conditions on appellant=s unsupervised possession of her
daughter.  We therefore overrule appellant=s second and third issues.
                                                                CONCLUSION
We find no abuse of discretion in the
appellate record.  Accordingly, the judgment of the trial court is affirmed.
 
 
 
/s/        Kent C. Sullivan
Justice
 
Panel consists of Justices Yates,
Guzman, and Sullivan. 
 
 




[1]           Chase also alleged, and the trial court
expressly found, that modification would be in the child=s best interest.  See Tex. Fam. Code Ann. ' 156.101.  That requisite element was not hotly
contested at trial, and the court=s
finding has not been explicitly challenged on appeal.


[2]           Dawn cites In re K.J.M. for the
proposition that a parent=s non-improvement of a substance-abuse problem, by
itself, cannot amount to a change in circumstances.  138 S.W.3d 536 (Tex. App.CHouston [14th Dist.] 2004, no pet.).  However, K.J.M.
is factually distinct.  There, the party seeking modification conceded that
there had been no change in circumstances since the previous custody order.  See
id. at 538.  In this case, by contrast, the trial court was presented with
evidence that, since 2001, Dawn=s substance
abuse has significantly and negatively affected A.L.E.  Therefore, K.J.M.
is not controlling here.


[3]           We note that, at trial, Dawn repeatedly
objected to Chase=s efforts to demonstrate some of the conditions that
immediately preceded the entry of the 2001 custody order.


[4]           According to Bruce Jeffries, who performed
drug testing on the parties, cocaethylene is a chemical that is created by the
mixing of cocaine and alcohol.  See, e.g., Roberts v. State, 220 S.W.3d
521, 529 (Tex. Crim. App. 2007) (describing metabolic process in which
cocaethylene is formed); Morris v. Dallas Morning News, Inc., 934 S.W.2d
410, 414 (Tex. App.CWaco 1996, writ denied).


[5]           Dawn has not questioned a trial court=s authority to order drug testing when drug use is a
material issue in the case.  See In re C.R., 263 S.W.3d 368, 375B76 (Tex. App.CDallas
2008, no pet.); In re C.D.B., 218 S.W.3d 308, 311 (Tex. App.CDallas 2007, no pet.); Monaghan v. Crawford,
763 S.W.2d 955, 957B58 (Tex. App.CSan
Antonio 1989, no writ).


[6]           In 1998, the Ninth Court of Appeals
encountered a similar, but not identical, visitation order.  See In re
A.D.H., 979 S.W.2d 445, 447 n.1 (Tex. App.CBeaumont 1998, no pet.) (AUnder
the provisions of the agreed divorce decree, Doris and Alvin were required to
deny Perry visitation unless he passed a weekly drug test.@).  There, the Beaumont court was not asked to decide
the propriety of that order.


[7]           It is beyond question that, in an
appropriate case, a trial court may order a parent=s visitation to be supervised.  See George, 238
S.W.3d at 469B71 (upholding trial court=s order requiring mother=s visitation to be supervised by S.A.F.E. program); Hopkins, 853
S.W.2d at 138 (finding trial court did not abuse discretion by ordering
supervised visitation, given evidence of appellant=s drug use); In re H.A.P., No. 11-05-00180-CV,
2006 WL 648312, at *2 (Tex. App.CEastland
March 16, 2006, no pet.) (mem. op.) (upholding supervised-visitation order in
light of father=s drinking problem).


[8]           Dawn=s
brief contains allegations that, since the trial court=s modification order, Chase has been depriving her of
unsupervised access to her child.  That claim is outside the appellate record;
therefore, we disregard it.  See Carlton v. Trinity Universal Ins. Co.,
32 S.W.3d 454, 458 (Tex. App.CHouston [14th
Dist.] 2000, pet. denied) (AIt is . . .
improper for parties to rely on matters outside the record in making arguments
to the court.@).


[9]           Specifically, at that point, Dawn must
submit to EtG and hair follicle tests once every three months,  beginning on
May 12, 2008.  If her test results also remain negative for the second year,
she must submit to EtG and hair follicle tests only once every six months,
beginning on August 12, 2009.


[10]          Dawn has not challenged the reliability of
the National Screening Center=s drug-test
protocol or the accuracy of its test results.


