




Affirmed as Modified and Majority and Concurring Opinions filed October
30, 2007







Affirmed
as Modified and Majority and Concurring Opinions filed October 30, 2007.
 
 
In The
 
Fourteenth Court of
Appeals
____________
 
NO. 14-06-00279-CV
____________
 
IN THE INTEREST OF C.A.M.M.
 
 

 
On Appeal from the 310th District Court
Harris
County, Texas
Trial Court Cause No. 94-029839
 

 
M A J O R
I T Y   O P I N I O N




In this
custody dispute, the child=s biological father challenges a modification order in which
(1) the child=s maternal grandmother and step-grandfather were appointed joint managing
conservators with the exclusive right to determine the child=s primary residence, and (2) although
the father was named a joint managing conservator, he was limited to supervised
visitation with the child.  Because we agree that the trial court erred in
ordering supervised visitation, we modify the trial court=s order to remove this requirement. 
But because the parental presumption is inapplicable in a modification
proceeding and the trial court properly considered the child=s best interest in modifying
conservatorship, we affirm the trial court=s order as modified.
I.  Factual and Procedural
Background
C.A.M.M.
(ACamille@)[1]
was born in 1993.  Tammy and Mark, her parents, were never married, but in
1994, Tammy filed an Original Petition to Establish Paternity.  On November 8,
1996, the trial court entered an AOrder on Motion to Modify in Suit
Affecting the Parent-Child Relationship.@  The parties do not dispute that in
this order (the Aprior order@), the trial court appointed Tammy sole managing conservator
with the right to designate Camille=s primary residence and appointed
Mark possessory conservator with a standard possession order.[2]

Tammy
and Camille lived with Tammy=s mother, Jean (A@Grandmother@), and Tammy=s step-father, also named Mark (AGrandfather,@ collectively, the AGrandparents@),[3]
essentially from the time of Camille=s birth.  Mark has been involved in
Camille=s life since her birth and took an
even more active parenting role after Tammy began to have serious health
problems when Camille was about nine years old.  Tammy died at home on February
17, 2005 while awaiting a heart transplant; Camille was home alone with Tammy
when she died.  Mark was immediately notified, and he took Camille home with
him for a few days.  Mark returned Camille to the Grandparents= home when Camille resumed school.




In March
2005, the Grandparents filed a Petition to Modify the Parent-Child
Relationship, accompanied by Camille=s signed statement that she preferred
her grandparents to determine her primary residence.[4] 
The Grandparents later amended their petition, and their live pleading at the
time of trial was entitled AFirst Amended Petition to Modify the Parent-Child
Relationship and in the Alternative Petition in Suit Affecting the Parent-Child
Relationship and in the Alternative Suit for Grandparent Access.@  The parties entered into an agreed
interim order requiring Camille to reside with the Grandparents until June 1,
2005, and continuing Mark=s standard possession on the first, third, and fifth
weekends.  The parties also agreed that Mark would have additional visitation
on Tuesdays and Thursdays after school until the next morning so he could
assist Camille with her schoolwork.  The interim order granted Mark possession
of Camille beginning June 1, 2005, and granted the Grandparents possession on
the second and fourth weekends and every Wednesday overnight.  
At the
end of the school year, Camille began residing with Mark under the temporary
order, but on July 25, 2005, the Grandparents sought to modify the agreed
interim order.  After a hearing before an associate judge, Mark and both
Grandparents were appointed temporary joint managing conservators, and Camille
returned to the Grandparents= residence.  Mark was given a standard possession order, as
well as additional visitation on Tuesdays and Thursdays from the end of Camille=s school day until 8:00 p.m.  
After
conducting a non-jury trial and interviewing Camille in chambers, the trial
court appointed Mark and the Grandparents joint managing conservators.  The
Grandparents were awarded the right to designate Camille=s primary residence, and Mark was
given visitation under a standard possession order and ordered to pay child
support.  In its conclusions of law, the trial court explicitly stated it was
modifying the prior order of November 8, 1996.  




Mark
filed a motion for new trial on January 11, 2006, and argued inter alia
that the trial court=s rulings were not supported by a finding that he is an unfit
parent.  At the hearing on this motion, the trial court observed that it Awould also not be able to give [Mark]
a standard possession order@ if he were unfit.  The trial court then reformed its order,
adding a finding that Mark=s appointment as Camille=s sole managing conservator would
significantly impair her physical health and emotional development.  The trial
court also required Mark=s visitation to be supervised by an adult approved by
Grandmother.  This appeal timely followed.
II.  Issues Presented
In four
issues, Mark challenges the trial court=s findings and reformed order,
contending that the trial court (a) improperly categorized the lawsuit as a
modification suit rather than an original proceeding, thus avoiding the
parental presumption statute; (b) unconstitutionally applied the modification
statutes; (c) abused its discretion by appointing the Grandparents as joint
managing conservators rather than appointing Mark as the sole managing
conservator; and (d) improperly reformed its order to limit Mark to supervised
visitation.
III.  Analysis
A.        Standard
of Review




Most
orders arising from a suit affecting the parent-child relationship will not be
disturbed on appeal unless the complaining party can demonstrate a clear abuse
of discretion.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In
re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet.). 
Such an abuse of discretion occurs when a trial court acts arbitrarily,
unreasonably, or without regard to guiding rules or principles.  McGuire v.
McGuire, 4 S.W.3d 382, 384 (Tex. App.CHouston [14th Dist.] 1999, no pet.). 
A trial court does not abuse its discretion as long as some evidence of a
substantive and probative character exists to support the trial court=s decision.  Huie v. DeShazo,
922 S.W.2d 920, 927‑28 (Tex. 1996) (orig. proceeding).  But the fact that
a trial court may decide a matter within its discretionary authority in a
different manner from an appellate court in a similar circumstance does not
demonstrate an abuse of discretion.  Downer v. Aquamarine Operators, Inc.,
701 S.W.2d 238, 241B42 (Tex. 1985).  Finally, the failure to analyze or apply the
law correctly also constitutes an abuse of discretion.  Walker v. Packer,
827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding).  This is so even when the
area of law at issue is unsettled.  Huie, 922 S.W.2d at 927B28. 
B.        Characterization of the
Suit as a Modification
Pleading
in the alternative, the Grandparents characterized their action as a suit for
modification, an original proceeding, or a suit for access by a grandparent.[5] 
The trial court treated the proceeding as a modification, as demonstrated by
the court=s order entitled AReformed Order in Suit to Modify Parent-Child Relationship.@[6]  In his first issue, Mark contends
that upon Tammy=s death, the prior conservatorship order was no longer a
valid order governing conservatorship and possession.  He reasons that because
the prior order became invalid, the trial court erred by treating this action
as a suit for modification, rather than an original suit affecting the
parent-child relationship (ASAPCR@). 
1.         The Parental Presumption
The
distinction between an original conservatorship determination and a
modification proceeding is more than procedural or semantic.  Under Chapter 153
of the Texas Family Code, the trial court is required to apply a Aparental presumption@ in an original proceeding: 




[U]nless 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[[7]]
or both parents shall be appointed as joint managing conservators of the
child.
Tex.
Fam. Code Ann. ' 153.131(a) (Vernon 2002).[8] 
Thus, in an original proceeding, Aevidence that the non-parent would be
a better custodian@ is insufficient to support the appointment of a non-parent
as managing conservator in preference to a parent.  See Lewelling v.
Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).  Rather, the non-parent is
required to Aaffirmatively prove by a preponderance of the evidence that appointment
of the parent as managing conservator would significantly impair the
child, either physically or emotionally.@  Id.  
But in a
modification proceeding, a non-parent is not required to prove that a parental
appointment would significantly impair the child.  In re V.L.K., 24
S.W.3d 338, 341 (Tex.2000).  Instead, a non-parent who recently has lived with
the child for six months can be appointed as a sole or joint managing
conservator and obtain the right to designate the child=s primary residence by demonstrating
that the appointment would be in the child=s best interest, 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;




(2)       the child is at least 12 years of age and has filed with the
court, in writing, the name of the person who is the child=s preference to have the exclusive right to designate
the primary residence of the child; or
(3)       the conservator who has the
exclusive right to designate the primary residence of the child has voluntarily
relinquished the primary care and possession of the child to another person for
at least six months.
Tex.
Fam. Code Ann. ' 156.101 (Vernon Supp. 2006).  Thus,
in a suit for modification, the trial court does not presume that appointment
of the surviving parent as sole managing conservator is in the child=s best interest.  See V.L.K.,
24 S.W.3d at 341. 
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.  On one
hand, Athe interest of parents in the care,
custody, and control of their children@ has been described as Aperhaps the oldest of the fundamental
liberty interests@ recognized by the United States Supreme Court.  Troxel v.
Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000) (plurality op.)
(citing Meyer v. Nebraska, .262 U.S. 390, 399, 401, 43 S. Ct. 625, 626,
67 L. Ed. 1042 (1923)).  On the other hand, it is the public policy of this
State to resolve conservatorship disputes in a manner that provides a safe, stable,
and nonviolent environment for the child.  Tex.
Fam. Code Ann. ' 153.001(a)(2) (Vernon 2002) (emphasis added).




The
Legislature has determined that when these two interests compete under
conditions such as those presented hereCi.e., the sole managing conservator has
died, and the child has expressed a preference that her primary residence be
designated by the non-parents with whom she has spent almost her entire lifeCthe child=s interest in stability prevails over
the parent=s right to primary possession.  Cf. Bates v. Tesar, 81
S.W.3d 411, 421B22 (Tex. App.CEl Paso 2002, no pet.) (noting that modification suits raise
policy concerns like stability not present in original custody
determinations).  Thus, when statutory requirements are met, the parent=s right to primary possession must
yield to the child=s right to a safe, stable home.  See Warchol v. Warchol,
853 S.W.2d 165, 167 (Tex. App.CBeaumont 1993, no writ) (stating that, in determining a
proposed modification of the terms of joint managing conservatorship, A[a]ny right of the parent must yield
to that primary consideration [of the child=s best interest]@); Reid v. Horton, 278 S.W.2d
626, 629B30 (Tex. Civ. App.CAmarillo 1954, writ ref=d n.r.e.) (AIn any dispute as to the custody of a
child, the prime considerations are the welfare and best interests of the child
and although the legal and natural claim of the parents to custody should never
be disregarded as an influential factor . . . such right must
yield where the child=s welfare requires that its custody be given to others.@); see also In re Tex. Dep=t of Family & Protective Servs., 210 S.W.3d 609, 614 (Tex. 2006) (AIt is not the Court=s task to choose between competing
policies addressed by legislative drafting.@).
We
recognize that the ramifications of the modification statutes can be
far-reaching and troubling, but any changes to the statutory scheme must come
from the Legislature.  Tex. Const. art. II, ' 1; see also City of San Antonio
v. Hartman, 201 S.W.3d 667, 673 (Tex. 2006).  We thus analyze Mark=s first issue under the statutory
framework erected to balance these sometimes competing interests.  See
Hartman, 201 S.W.3d at 673 (AWe must construe this statute
according to what it says, not according to what we think it should have said.@).
2.         Application of the
Statutory Framework




Here,
the challenge to the characterization of this action as a suit for modification
rather than an original proceeding is resolved by the plain language of the
governing statutes. Pursuant to section 156.002 of the Family Code, a Aperson . . . who,
at the time of filing, has standing to sue under Chapter 102 may file a suit
for modification in the court with continuing, exclusive jurisdiction.@  Tex.
Fam. Code Ann. ' 156.002(b).[9]  If the child=s managing conservator is deceased, a
person  has standing to sue under Chapter 102 if the child and the child=s managing conservator resided with
the person Afor at least six months ending not more than 90 days preceding the date
of the filing of the petition . . . .@  Id. ' 102.003(11) (Vernon Supp.
2006).  Thus, the Family Code encompasses modification of a prior order
following the death of a sole managing conservator.  Because the Grandparents
conclusively established that Tammy and Camille lived with them as required by
section 102.003(11), they not only had standing to pursue conservatorship through
an original proceeding,[10] but also had
standing to seek modification of the prior order:  
To further its goal of providing stable home
environments for Texas children, the Legislature specifically granted standing
to file a modification suit following the death of a managing conservator to
persons . . . with whom children and their managing conservator have resided
for at least six months prior to the filing of the modification suit. 
In re P.D.M., 117 S.W.3d 453, 464 (Tex. App.CFort Worth 2003, pet. denied).  Thus,
in accordance with the Legislature=s preference for stability when
modifying prior conservatorship orders, the trial court=s treatment of the proceeding as a
suit for modification is sanctioned by provisions in the Family Code permitting
a non-parent to sue for modification upon the death of the managing conservator
if the child and the conservator resided with the non-parent.  And as
previously discussed, the parental presumption does not apply in a suit for
modification.  See V.L.K., 24 S.W.3d at 343 (noting that Athere is a difference between an
original conservatorship determination and a modification@ in that modification suits raise
policy concerns such as a child=s need for stability that may not be present in original
conservatorship determinations).  




Relying
on Greene v. Schuble, Mark argues that the suit should have been treated
as an original proceeding because the prior order did not survive the managing
conservator=s death.  654 S.W.2d 436, 438 (Tex. 1983) (orig. proceeding).  In Greene,
the Texas Supreme Court held, AIn the absence of specific provisions to the contrary in an
order establishing conservatorship, the death of the managing conservator ends
the conservatorship order and it no longer constitutes a valid, subsisting
court order for purposes of [the prior habeas statute].@  Id. at 437B38.  The Greene Court went on
to specify that A[t]he office of habeas corpus is limited to restoring
possession of the child to the person legally entitled to present possession,
and may not be used to relitigate custody.@  Id. at 438.  But in Greene,
a separate conservatorship proceeding was pending in the trial court; thus, the
only issue before the Court was who, as between a natural parent and a
step-parent, had the right to immediate possession of the children.  Id.  Moreover,
the Court was careful to limit the application of its holding to the outcome of
the habeas corpus proceeding, and expressly stated that the Aopinion does not reflect
consideration of the merits of the other proceedings pending in the court
below.@  Thus, we cannot agree with Mark=s argument that the trial court
abused its discretion by failing to extend Greene=s holding to a modification
proceeding.  
The
Second Court of Appeals has considered and rejected a similar argument.  P.D.M.,
117 S.W.3d at 458B62.  In rejecting the argument that the death of a managing
conservator terminated a prior conservatorship determination, the court noted Athe fact that a prior
[conservatorship] order may no longer effectively govern the present right of
possession to a child simply does not alter its status as a prior order or the
reality of its prior existence, i.e., the effect it had on the subject
children=s lives.@  Id. at 462 (holding that a
prior order appointing a managing conservator is a prior order for purposes of
a suit to modify the parent-child relationship).  We find no authority for a
contrary result here.




We note
that the prior order of November 8, 1996 order was an agreed order, and we
emphasize that there is no indication in the record that Mark has ever been
determined to be a less fit parent than Tammy.  According to the parties, the
parents agreed that Tammy would be appointed sole managing conservator and Mark
would be the possessory conservator under a standard possession order.  But
because the trial court is authorized by statute to treat this action as a suit
for modification to which the parental presumption does not apply, we cannot
conclude that the trial court abused its discretion by doing so.  We overrule
Mark=s first issue. 
C.        Alleged
Unconstitutional Application of Modification Statutes
In his
second issue, Mark asserts that the trial court unconstitutionally applied
Chapter 156 of the Family Code, which governs modifications, instead of Chapter
153, which governs original proceedings.  He argues that because the parental
presumption does not apply to modifications, he has been deprived of his due
process rights.  Although this issue appears to be an Aas applied@ constitutional challenge, his
argument does not provide a basis upon which we may determine such an issue.  
An
analysis of a statute=s constitutionality begins with a presumption of validity.  In
re Commitment of Fisher, 164 S.W.3d 637, 645 (Tex. 2005).  The burden is on
the party attacking the statute to show that it is unconstitutional.  See
Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003).  Here, Mark does not
explain how his fundamental due process  rights were violated.  He argues as
follows:




[T]he trial court found that ' 156 of the Texas Family Code
applies rather than ' 153.  Appellant argues that the trial court abused its
discretion by improperly applying the Texas modification statute resulting in a
violation of father=s due process rights. . . . [T]he court
clearly took the position that there was no parental presumption and it would
not be applied. . . . There is no indication that the court
required Appellees to rebut the parental
presumption.  . . It appears that the court has set a lower
standard of proof for a modification statute then [sic] required by Troxel[[11]]. . . . I
submit that the modification statute deprives a parent of more rights
than the grandparent access statute and therefore under In [r]e
Mays-Hooper[[12]] the
standard of proof should be clear and convincing evidence that parent [sic] is
unfit, clear and convincing evidence that child=s health or emotional well-being will
suffer if trial court awards custody to father and denies relief to
[Grandparents].  To determine otherwise deprives Appellant of his due process
rights.




It is
unclear whether Mark complains of the trial court=s discretionary treatment of the case
as a modification suit, the effect of the modification statutes, or the burden
of proof; it is also unclear whether he attributes error to the trial court or
the Legislature.  We further note that Mark did not request appointment as
Camille=s sole managing conservatorship or
the right to designate Camille=s primary residence until after the trial court appointed all
parties as joint managing conservators and granted the Grandparents the right
to designate Camille=s primary residence.  See Quilloin v. Walcott, 434
U.S. 246, 255, 98 S. Ct. 549, 555 (1978) (holding that the due process rights
of an unwed father who never had or sought actual or legal custody of his child
were not violated in allowing child to remain with the family with whom it
already resided).  And the trial court may not grant relief in the absence of
pleadings supporting such relief.  Vaughn v. Drennon, 202 S.W.3d 308,
314 (Tex. App.CTyler 2006, no pet.); see also Tex.
R. Civ. P. 301 (AThe judgment of the court shall conform to the
pleadings . . . .@). 
Although
it is conceivable, as the concurrence intimates, that the modification statutes
may not always adequately protect parental rights in every case,[13]
Mark has not met his burden to establish that his own constitutional rights
have been violated.  Thus, we overrule his second issue.
D.        Trial
Court=s Failure to Appoint Mark Sole Managing Conservator




In his
third issue, Mark contends the trial court abused its discretion by appointing
the parties joint managing conservators rather than appointing him sole
managing conservator.  In this issue, he asserts several no-evidence points and
challenges various of the trial court=s factual findings.[14] 
As we have determined that the parental presumption does not apply in a modification
proceeding, we reframe Mark=s issue as one challenging the sufficiency of the evidence to
meet the statutory requirements for modification. 
1.         Review of Sufficiency
Challenges
In our
review of these findings, we apply a hybrid abuse-of-discretion analysis to
determine whether the trial court (1) had sufficient information on which
to exercise its discretion, and (2) erred in its application of discretion.  See
Zeifman v. Michels, 212 S.W.3d 582, 587B88 (Tex. App.CAustin 2006, pet. denied); see
also Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.CEl Paso 2005, no pet.).  Thus, legal
and factual insufficiency are not independent grounds for reversal, but instead
are factors to be considered in determining whether the trial court abused its
discretion.  Zeifman, 212 S.W.3d at 587; Sotelo, 170 S.W.3d at
787.  
To
determine if the evidence is legally sufficient, we review the entire record,
considering evidence favorable to the finding if a reasonable factfinder could,
and disregarding evidence contrary to the finding unless a reasonable
factfinder could not.  City of Keller v. Wilson, 168 S.W.3d 802, 828
(Tex. 2005).  The evidence is factually insufficient if the finding is so
contrary to the overwhelming weight of the evidence as to be clearly wrong and
manifestly unjust.  See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)
(per curiam).  But it is for the fact finder to determine the weight to be
given to the testimony and to resolve any conflicts in the evidence.  Sotelo,
170 S.W.3d at 787.  




Finally,
after assessing the sufficiency of the evidence, we determine whether, based on
the elicited evidence, the trial court made a reasonable decision.  See
Zeifman, 212 S.W.3d at 588; Soleto, 170 S.W.3d at 787.  AIn other words, we must conclude that
the ruling was neither arbitrary nor unreasonable.@  Sotelo, 170 S.W.3d at 787.
2.         Statutory Requirements for
Modification
Here,
the trial court did not err in modifying conservatorship if modification was in
Camille=s best interests and if there
had been a material and substantial change in circumstances or Camille had
filed a written statement naming the person whom she would prefer to designate
her primary residence.  See Tex.
Fam. Code Ann. ' 156.101(1), (2).  Mark does not challenge the trial court=s finding that there had been a
material and substantial change in circumstances since the prior order, and it
is undisputed that Camille had indicated her preference in writing.  Thus, we
consider whether the Grandparents established that it was in Camille=s best interest that they be appointed
joint managing conservators with the exclusive right to determine Camille=s primary residence.
3.         The Best Interest of the
Child




In
determining the best interest of a child, a court may consider, inter alia:
(1) her desires, (2) her emotional and physical needs now and in the future,
(3) any emotional and physical danger to the child now and in the future, (4)
the parental abilities of the individuals seeking primary possession, (5) the
programs available to assist these individuals to promote the child=s best interest, (6) the plans for
the child by those seeking primary possession, (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.  Holley v. Adams,
544 S.W.2d 367, 371B72 (Tex. 1976).[15]  In the
specific context of modification of conservatorship, courts also consider (10)
the child=s need for stability; and (11) the need to prevent constant litigation
regarding conservatorship of the child.  In re V.L.K., 24 S.W.3d at 343;
Long v. Long, 144 S.W.3d 64, 68 (Tex. App.CEl Paso 2004, no pet.).
Turning
to those factors that are present here, we begin our analysis by noting that
Camille indicated in writing that she preferred to have the Grandparents designate
her primary residence.  She also testified that she preferred to remain with
the Grandparents and that living with her father would make her Auncomfortable.@  Grandmother testified that living
with Mark would impair Camille=s emotional development because Camille has not had an
opportunity to grieve for her mother.  Additionally, a school district
counselor testified that Mark did not seem to understand that Camille needed
time to grieve after her mother=s death. 
Considering
evidence of the parental abilities of the parties and the programs available to
assist them in promoting Camille=s best interest, we note that the
Grandparents completed parenting classes and grief counseling classes in their
efforts to prepare for taking a more active role in Camille=s life.  Mark also completed grief
counseling classes, but did not complete a court-ordered parenting class prior
to trial.  Regarding the parties= plans for Camille, Grandmother
indicated that she was present in the mornings and took Camille to school, and
Grandfather was present in the afternoons and brought Camille home from
school.  She also stated that she planned on enrolling Camille in dance lessons
and encouraging her to take art classes.  




In
contrast, Mark stated that Camille would be required to ride the school bus
because he started work early in the morning; he indicated that he would rely
on his girlfriend to ensure that Camille was ready for school in the mornings,
but he would be home when Camille returned from school.  Mark admitted that his
girlfriend owns the house where he lives, and he could be forced to leave on
short notice if their relationship deteriorated. Grandmother also testified
that Mark Ahas a history of moving residences.@  The trial court could have
concluded that removing Camille from the home where she had lived for the past
ten years would not be in her best interest because it would decrease the
continuity and stability in her life at a time when she was already faced with
the loss of her mother.  
On this
record, we cannot conclude that the trial court had insufficient evidence upon
which to exercise its discretion or erred in its application of this
discretion.  To the contrary, the record supports the trial court=s determination that the modification
is in Camille=s best interest.  Accordingly, we overrule Mark=s third issue.
E.        Reformation
of Judgment
In his
fourth and final issue, Mark asserts that the trial court erred by reforming
its order to require his visitation with Camille be supervised by a person
approved by Camille=s Grandmother.  We agree.
The
trial court must begin with a rebuttable presumption that the standard
possession order is in the best interest of the child.  See Tex. Fam. Code Ann. ' 153.252 (Vernon 2002).[16]
And even when the presumption is rebutted, A[t]he terms of an order that . . .
impose[] 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.@  Id. ' 153.193.  
In its
original order, the trial court placed no such restriction on Mark=s time with his daughter.  But after
the hearing on Mark=s motion for new trialCduring which no argument was made
regarding visitationCthe trial court reformed its order to require that Mark=s visits be supervised by a person or
entity approved by Grandmother.  The only reference to Mark=s possession of Camille occurred in
the following colloquy between the trial court and Mark=s trial counsel, who was arguing in
favor of Mark=s appointment as sole managing conservator:




Mark=s Counsel:        
. . . So far as the grandmother was concerned, even if you go under the Court=s ruling [sic] that it was a material and substantial
change in circumstance, I submit to you that under Troxel the Court
would also have to find that [Mark] was not a fit parent or to sort of state it
definitely.
The grandmother would have B 
Court:             And I would also not be able to
give him a standard possession order.
Mark=s Counsel:        Correct,
your Honor.
 
(emphasis added).  Thus,
it appears the trial court acted under the mistaken impression that an order
appointing non-parents as joint managing conservators must be supported by a
finding that the child=s physical health or emotional development would be impaired
if the parent were awarded sole managing conservatorship.  But as discussed supra,
such a finding is not required to modify a conservatorship order.  And in any
event, such a finding must be supported by sufficient evidence to overcome the
statutory presumption in favor of a standard possession order.
On this
record, and in light of the statutory presumption, we conclude that the trial
court abused its discretion by ordering that Mark=s visitation be supervised.  We
therefore sustain Mark=s fourth issue.  We reform the trial court=s order to remove the requirement of
supervised visitation. 
IV.  Conclusion




We have
determined that the trial court did not abuse its discretion in appointing Mark
and the Grandparents as Camille=s joint managing conservators in this modification
proceeding.  Furthermore, Mark has not demonstrated that the application of the
Texas modification statutes violates his due process rights.  Thus, we overrule
his first, second, and third issues.  But we agree that the trial court erred
in requiring that Mark=s visitation with Camille be supervised.  Accordingly, we
sustain his fourth issue and modify the trial court=s order to remove the supervised
visitation requirement.  We affirm the trial court=s order as modified.
 
 
 
 
/s/        Eva M. Guzman
Justice
 
 
 
 
Judgment rendered and Majority and
Concurring Opinions filed October 30, 2007.
Panel consists of Justices Frost,
Seymore, and Guzman (Frost, J. Concurring).




[1]  We refer to the parties by fictitious names to
protect the identity of the minor child.  Tex.
Fam. Code Ann. ' 109.002(d) (Vernon 2002).


[2]  The parties did not include a copy of the prior
order in the record on appeal. 


[3]  We will refer to Camille=s step-grandfather as AGrandfather@ for ease of reference and to distinguish him from
Camille=s father of the same name.


[4]  Camille was over twelve years old at the time.


[5]  See Tex.
Fam. Code Ann. ' 153.432 (Vernon Supp. 2006) (governing suits for
possession or access by a grandparent).


[6]  In the order, the trial court found Athat the material allegations in the petition to
modify are true and that the requested modification is in the best
interest of the child.@  (emphasis added).   


[7]  Unless otherwise limited by court order, a parent
who is the sole managing conservator has the exclusive right to designate the
primary residence of the child.  Tex.
Fam. Code Ann. ' 153.132(1) (Vernon 2002).  The rights to primary
possession and to determine the child=s
primary residence are Acore rights of managing conservatorship[.]@ Phillips v. Beaber, 995 S.W.2d 655, 660 (Tex.
1999).  


[8]  This statute is subject to section 153.004, which
concerns a parent=s history of committing  acts of domestic violence,
child neglect, physical abuse, or sexual abuse.  Tex. Fam. Code Ann. ' 153.004. 
No such history has been alleged here.


[9]  The trial court maintained continuing exclusive
jurisdiction after the mother=s death.  See
Fleming v. Easton, 998 S.W.2d 252, 255 (Tex. App.CDallas 1999, no pet.); Dohrn v. Delgado, 941
S.W.2d 244, 248 (Tex. App.CCorpus Christi
1996, no writ); Lewis v. McCoy, 747 S.W.2d 48, 50 (Tex. App.CEl Paso 1988, no writ).


[10]  See In re SSJ-J, 153 S.W.3d 132, 134B38 (Tex. App.CSan
Antonio 2004, no pet.) (discussing history of section 102.003(a)(11) and
concluding that upon the death of the child=s
mother, who was a joint managing conservator with the right to establish the
child=s primary residence, the child=s maternal grandmother and step-grandfather had
standing to bring an original suit seeking conservatorship, but were required
to overcome the parental presumption).


[11]  In Troxel, a plurality of the United States
Supreme Court stated that Washington=s Abreathtakingly broad@ nonparental visitation statute was unconstitutional as applied because
the statute accorded no weight to the visitation decisions of fit custodial
parents, and because the Washington court refused to construe the statute
narrowly but instead presumed that grandparent visitation would be in a child=s best interest.  530 U.S. at 67B72, 120 S. Ct. at 2060B63.  The underlying lawsuit in Troxel was an original proceeding
concerning visitation, not a modification suit concerning conservatorship.  The
plurality did not specify a burden of proof for modification statutes in that
opinion. 


[12]  In re Mays-Hooper, 189 S.W.3d 777 (2006) (per
curiam) (following Troxel in granting mandamus relief directing the
trial court to vacate an order under section 153.432 of the Family Code, which
governs grandparent visitation).  
Although Mays-Hooper is inapposite,
the Second Court of Appeals has applied Troxel=s due process analysis to a conservatorship
dispute between a parent and a non-parent  and determined that the Texas
modification statutes were not unconstitutional as applied.  See In re
M.N.G., 113 S.W.3d 27, 31B35 (Tex. App.CFort Worth 2003, no pet.).  After A[c]onsidering the Texas modification statute in light
of the policy considerations behind it, as well as the case law concerning the
statutorily required elements,@ the court
concluded that Athe Texas statute is not too vague or overbroad to
protect [the father=s] constitutional due process rights.@  Id. at 35.


[13]  See generally David F. Johnson, In re
V.L.K. v. Troxel:  Is the ABest Interest@
Standard in a Motion to Modify the Sole Managing Conservator Subject to a Due
Process or Due Course Challenge?, 34 St. Mary=s L.J. 623, 638B39
(2003) (discussing the possibility that the modification statute could be
unconstitutionally applied in certain circumstances).  It is not our role,
however, to Asecond-guess the policy choices that inform our
statutes . . . .@  McIntyre
v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003). 


[14]  Specifically, Mark asserts:
There is no
evidence in the record that [he] is unfit to care for and raise his daughter. 
To the contrary[,] all the evidence showed that he had done so for twelve []
years and is capable of doing so now.  Appellant objects to Findings of Fact
nos. 4, 5, 6 . . . .
* * *
None of the
testimony is supportive of finding that [Mark] is in any way detrimental to his
daughter=s physical or emotional development or that her living
with him would be detrimental to his daughter=s physical or emotional development.
The challenged findings of fact are as follows:
            4.         It is the best interest of the
child that [Grandmother], [Grandfather,] and [Mark] be appointed joint managing
conservators of the child and that [Grandmother and Grandfather] have the right
to designate the child=s primary residence.
5.         The child the subject of this suit is over the age of 12
years and has executed a choice preference as provided in section 153.008 of
the Texas Family Code stating in writing her preference that the Petitioners
have the right to establish the primary residence of the child.  The Court
finds the choice is consistent with the best interest of the child.
6.         The Court also finds that the appointment of [Mark] as the
joint managing conservator with the right to establish the primary residence of
the child would significantly impair the child=s physical health or emotional development.  The court finds that
determination is in the best interest of the child.
 


[15]  Some of these factors are not at issue here.  For
example, neither party cites any acts or omissions of Mark that may indicate
the existing parent-child relationship is improper; thus factors (8) and (9)
are inapplicable. 


[16]  Although located in Chapter 153, the application of
this statute is not limited to original proceedings, but governs parental
possession generally.  See, e.g., In re B.N.F., 120 S.W.3d 873,
(Tex. App.CFort Worth 2003, no pet.). 


