Affirmed in Part, Reversed and Remanded in Part, and Opinion filed August
29, 2019.




                                       In The

                      Fourteenth Court of Appeals

                                NO. 14-18-00283-CV

                      JESSICA JEAN BRANDON, Appellant
                                          V.

                          SHAWN M. RUDISEL, Appellee

                  On Appeal from the 425th Judicial District Court
                            Williamson County, Texas
                       Trial Court Cause No. 13-1795-F425

                                    OPINION

        A mother appeals the trial court’s order modifying the conservatorship of her
three children.     She also challenges the court’s order denying her any rights of
possession or access to the children. We affirm in part and reverse and remand in
part.

                    I. PROCEDURAL AND FACTUAL BACKGROUND

        During their marriage, appellant Jessica Jean Brandon (“Mother”) and
appellee Shawn M. Rudisel (“Father”) had three children together, Paul, James,
and Kayla.1 Mother and Father divorced in 2013. The trial court named each
parent as a joint managing conservator, with Mother having the primary right to
designate the children’s residence. Under the order in place for two years before
the underlying modification suit, the children lived with Mother and would spend
every other weekend with Father.

          In September 2017, Father filed suit to remove Mother as a joint managing
conservator. He asked the trial court to deny Mother access to the children. Father
sought a temporary restraining order as well as temporary orders. Father’s
supporting affidavit describes a series of events occurring since 2016 involving
Mother’s care of the children, including reports from Children and Family
Protective Services (“CPS”) made against Mother for drug abuse and neglect and
for housing the children with two successive live-in boyfriends, the latter of whom
Father discovered had a history of using and selling methamphetamines. In the
affidavit, Father explains that Mother left the children with Father on the first day
of June in 2017, for what was supposed to be a week, but the period lasted for six
and a half weeks, despite Father’s repeated attempts to reach Mother. In the
affidavit Father described concerns for the children’s shelter, reporting that Mother
claimed her home had black mold and rat feces, that she was looking but unable to
find a place to live, and had been living in hotels. He reported that Mother told
him that she had not enrolled the children in school because she had not yet found
a place to live.

                                 Temporary Restraining Order

          Mother, represented by counsel, appeared at the hearing on Father’s request
for a temporary restraining order. The trial court signed a temporary restraining
1
    We refer to the children by these pseudonyms to protect their privacy.

                                                  2
order that removed Mother’s possession of and access to the children, and that
conferred on Father the right to withdraw them from their current school and enroll
them in a school where he lived.

                                  Temporary Orders

       The trial court set a hearing to decide temporary orders two weeks later.
When that date arrived, Mother’s counsel withdrew from representing her. Mother
did not appear at the hearing. The trial court signed temporary orders in which the
court denied Mother access to the children pending final resolution of the case.

                                  Trial-Setting Notice

       On October 31, 2017, Father filed a “Notice of Final Trial on the Merits,”
giving notice that the case was set for trial on December 18, 2017 (the “Notice”).

                   Trial on the Petition to Modify Conservatorship

       Mother did not appear at trial. Father was the only witness at trial. The trial
court issued its final order modifying the parent-child relationships.

       In its order the trial court appointed Father as the children’s sole managing
conservator and did not appoint Mother as a possessory conservator, implicitly
removing Mother as a managing conservator and giving Father exclusive rights as
managing conservator, including the right to designate where the children live and
go to school. In the order the trial court explicitly denied Mother the parental
rights ordinarily conferred to parents appointed as conservators (managing or
possessory) under section 153.073 of the Texas Family Code. In making this
ruling, the trial court stated:

       [Mother] does not have the following rights and the following rights
       are suspended:
       1. the right to receive information from any other conservator of the

                                           3
      children concerning the health, education, and welfare of the children;
      2. the right to confer with the other parent to the extent possible before
      making a decision concerning the health, education, and welfare of the
      children;
      3. the right of access to medical, dental, psychological, and
      educational records of the children;
      4. the right to consult with a physician, dentist, or psychologist of the
      children;
      5. the right to consult with school officials concerning the children's
      welfare and educational status, including school activities;
      6. the right to attend school activities;
      7. the right to be designated on the children's records as a person to be
      notified in case of an emergency;
      8. the right to consent to medical, dental, and surgical treatment
      during an emergency involving an immediate danger to the health and
      safety of the children; and
      9. the right to manage the estates of the children to the extent the
      estates have been created by the parent or the parent's family.

      The trial court expressly rejected Mother’s appointment as a possessory
conservator, and in the order recited findings under section 153.191 of the Texas
Family Code to underpin this decision—that “the appointment of [Mother] as a
possessory conservator is not in the best interest of the children,” and “that parental
possession or access of the children by [Mother] would endanger the physical or
emotional welfare of the children.”

      Finally, under the section defining Mother’s possession of and access to the
children, the order states:

      [Mother] shall not have any possession and access to the children and
      [Mother] is ENJOINED from exercising any possession of the
      children or having any contact with the children. IT IS EXPLICITLY
      ORDERED that [Mother] cannot attempt to access the children or
      exercise possession of the children at the children’s school or attempt

                                           4
       to contact the children in any way unless given permission in writing
       by [Father].
                                    Motion for New Trial
       Mother timely filed a motion for new trial, asserting that the trial court’s
orders were unsupported by legally and factually sufficient evidence and claiming
that she did not receive notice of the December 18, 2017 trial.                         After an
evidentiary hearing, the trial court denied the motion and issued findings of fact
and conclusions of law.

                                             Appeal

       In this appeal Mother raises three issues challenging the trial court’s
rulings.2 First, she argues she failed to receive notice of the trial. Then, she
complains that the trial court abused its discretion (1) in denying her rights as a
possessory conservator and (2) in giving her no access to her children.

                                  II. ISSUES AND ANALYSIS

A. Did the trial court err in denying Mother’s motion for new trial on the
ground that Mother had no notice of trial?
       In her first issue, Mother argues that she had no notice of the trial setting.
Mother contends that (1) she had no actual notice of the trial setting; (2) there was
no constructive notice because (a) the Notice’s certificate of service did not list any
of the email addresses to which the Notice was sent and thus Father failed to
comply with Texas Rule of Procedure 21a; (b) Mother’s uncontroverted testimony
that she did not receive the letters and the emails containing the Notice negates
constructive notice; and (c) there was no proof that Mother engaged in selective

       2
          The Supreme Court of Texas transferred this case from the Third Court of Appeals. In
transfer cases, the transferee court must decide the appeal in accordance with the precedent of the
transferor court under principles of stare decisis if the transferee court’s decision otherwise
would have been inconsistent with the precedent of the transferor court. Tex. R. App. P. 41.3.

                                                5
acceptance of mail or dodged service.

      A failure to give notice of a trial setting is grounds for reversal, but we begin
our analysis with the presumption that the trial court heard the case only after
giving proper notice to the parties. Jones v. Texas Dep't of Pub. Safety, 803
S.W.2d 760, 761 (Tex. App.–Houston [14th Dist.] 1991, no writ); Adekoya v.
Adekoya, No. 03-16-00195-CV, 2017 WL 3902945, at *1 (Tex. App.—Austin
Aug. 24, 2017, no pet.). Mother had the burden to make an affirmative showing
that she was not given notice of the trial, and to submit competent evidence
showing that she had no notice. See Boateng v. Trailblazer Health Enterprises,
L.L.C., 171 S.W.3d 481, 492 n. 4 (Tex. App.—Houston [14th Dist.] 2005, no pet.).
The trial court found that Mother had both constructive and actual notice of trial.
We presume for the sake of argument that Mother did not have actual notice and
we examine whether the trial court erred in denying a new trial based on
constructive notice.

      Rule 21a requires the party or attorney serving a notice under that rule to
certify to the court compliance with the rule in writing, over signature, and on the
filed instrument. Tex. R. Civ. P. 21a(e). This certificate of service is prima facie
evidence of the fact of service, although a party may offer proof that the document
was not received. Id. The record reflects that the Notice contained a certificate of
service in which the attorney filing the notice certified that under Rule 21a a true
and correct copy of the Notice was served on Mother on October 31, 2017. In the
certificate the attorney certified that the Notice was served on Mother by regular
and certified mail at two different addresses and by e-service to one email address.
On appeal, Mother argues that there was no constructive notice because the
Notice’s certificate of service did not list any of the email addresses to which the
Notice was sent and thus Father failed to comply with Rule 21a. This complaint

                                          6
fails because Mother failed to preserve error in the trial court. See Redwine v.
Wright, No. 14-10-00030-CV, 2010 WL 5238572, at *2 (Tex. App.—Houston
[14th Dist.] Dec. 16, 2010, no pet.) (mem. op.). Even if Mother had preserved
error, Rule 21a(e) required Father’s attorney to certify to the court compliance with
Rule 21a in writing, over signature, and on the filed instrument; the rule did not
require the attorney to list all the addresses to which the Notice was sent. Tex. R.
Civ. P. 21a(e). Based on the evidence at the motion-for-new-trial hearing, Father’s
attorney listed one of the two email addresses to which the Notice was sent. The
failure to list both email addresses does not violate Rule 21a. See id.

      If the Notice was filed electronically under Rule 21a and if Mother’s email
address was on file with the electronic filing manager, then Rule 21a required the
Notice to be served electronically through the electronic filing manager. Tex. R.
Civ. P. 21a(a)(1). The evidence from the motion-for-new-trial hearing reflects that
Mother is an attorney and that the Notice was filed electronically under Rule 21.
But, the evidence does not address whether Mother’s email address was on file
with the electronic filing manager. See Tex. R. Civ. P. 21, 21a. If Mother’s email
address was not on file with the electronic filing manager, then Rule 21a allowed
the Notice to be served by any of the means listed in Rule 21a(a)(2), including by
mail or by email. See Tex. R. Civ. P. 21a(a). Service by mail is complete upon
deposit of the document, postpaid and properly addressed, in the mail. Tex. R.
Civ. P. 21a(b)(1). Electronic service is complete on transmission to the serving
party’s electronic filing service provider. Tex. R. Civ. P. 21a(b)(3).

      When Mother’s counsel withdrew, the trial court issued an order granting
the motion. In the order, the trial court found that Mother’s last known email
address was “jessica@jbrandonlaw.com” (the “Last Known Email Address”), and
the trial court ordered that all notices in the case shall be either personally served

                                          7
on Mother or sent to Mother at the Last Known Email Address.

      When Father’s attorney filed the Notice on October 31, 2017, the attorney
stated that the case was set for trial on December 18, 2017. The evidence at the
motion-for-new-trial hearing showed that Father served the Notice on Mother at
the Last Known Email Address, both by electronic service through the electronic
filing manager and by an email sent by a legal assistant at the law firm representing
Father. If Mother’s email address was on file with the electronic filing manager,
then the evidence shows that Father served the Notice electronically through the
electronic filing manager in compliance with Rule 21a and the withdrawal order.
See Tex. R. Civ. P. 21a(b)(3). If Mother’s email address was not on file with the
electronic filing manager, then the evidence shows that Father served the Notice by
email in compliance with Rule 21a and the withdrawal order. See id.

      The evidence also shows that Father served the Notice on Mother at another
email address (the “Other Email Address”), both by electronic service through the
electronic filing manager and by an email sent by a legal assistant at the law firm
representing Father. Father also sent the Notice by regular and certified mail to a
post office box that Mother had listed as her address on her profile on the State Bar
of Texas website, which Mother had last certified as correct on May 24, 2017.
Father also sent the Notice by regular and certified mail to a business address in
Austin that Mother testified she had vacated in September 2017, the month before
the Notice was sent. The post office returned the regular and certified mail sent to
each address with a notation showing that the mail could not be delivered or
forwarded.

      Mother contends that the trial court erred in finding she had constructive
notice of the trial setting because she claims she testified that she did not receive
the letters and the emails. At the motion-for-new-trial hearing Mother testified that

                                         8
the last time she used the Other Email Address was in September 2017, that she
got “locked out” of the Other Email Address, and that she did not have any
“recovery options” on that email account. Mother testified that, as a result, she
was sending emails to Father’s counsel from the Last Known Email Address.
According to Mother, she went to “rehab” from October 30, 2017 through
November 30, 2017. Mother testified that after her children were taken away, she
“lost it,” became depressed, and “started arranging to go to rehab[,] and [she] left
for Amarillo almost immediately.” Mother agreed that because she was depressed
she did not take appropriate steps to see what was going on in this lawsuit.

      According to Mother, she “got cut off of access” to the Last Known Email
Address in October 2017, before Father filed the Notice “because [she] needed to
update the payment information on [that account] and [she] wasn’t allowed any
electronic access [when she was in rehab].” Mother testified that she had the Last
Known Email Address reactivated in February 2018. Mother stated, “I’ve looked
and the e-mail from the time it got shut off until I had it turned back on, I didn’t
receive any of the e-mail correspondence that I had gotten.” According to Mother,
even after the reactivation of this account, Mother did not have access to the emails
sent to the Last Known Email Address during this period.

      In sum, Mother testified that she did not have access to the Last Known
Email Address from before October 31, 2017 through February 2018, and that
even after February 2018, Mother did not have access to the emails that were sent
to the Last Known Email Address. Even so, Mother did not testify that the Notice
was not received at the Last Known Email Address or that all emails sent to that
address during this period would have been rejected. No evidence at the motion-
for-new-trial hearing showed that either of the two emails containing the Notice
that were sent to the Last Known Email Address were rejected. Rule 21a(b)(3)

                                          9
states that electronic service is “complete on transmission of the document to the
serving party’s electronic filing service provider.” Tex. R. Civ. P. 21a(b)(3). The
rule does not contemplate that electronic service is somehow incomplete when a
party experiences computer or email problems. Abuzaid v. Anani, LLC, No. 05-16-
00667-CV, 2017 WL 5590194, at *4 (Tex. App.—Dallas Nov. 21, 2017, no pet.)
(mem. op.). Rather, notice properly sent under Rule 21a raises a presumption that
notice was received. See id. Though Rule 21a(e) provides “[n]othing herein shall
preclude any party from offering proof that the document was not received,”
Mother did not present evidence that the emails containing the Notice sent to the
Last Known Email Address were not “received.” See id.

       Under the facts of this case, the trial court did not abuse its discretion in
finding that Mother had constructive notice of trial.3 See id.; Nichols v. Goodger,
No. 03-16-00044-CV, 2017 WL 3122793, at *2 (Tex. App.—Austin July 20, 2017,
no pet.) (mem. op.).

       We overrule Mother’s first issue.

B. Is the evidence legally and factually sufficient to support the trial court’s
final order modifying conservatorship, possession and access?
       In her second and third issues, Mother raises legal and factual sufficiency
challenges to the trial court’s final order modifying the conservatorship and terms
of possession and access.

       In determining issues of conservatorship and possession and access, the
primary consideration is always the best interest of the children. See Tex. Fam.
Code Ann. § 153.002 (West 2014); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002).
We review a trial court’s decision to modify an order regarding conservatorship or

3
 We presume for the sake of argument that there was no proof that Mother engaged in selective
acceptance of mail or dodged service.

                                             10
the terms of possession of and access to each child under an abuse-of-discretion
standard. See Baltzer v. Medina, 240 S.W.3d 469, 474–75 (Tex. App. —Houston
[14th Dist.] 2007, no pet.). A trial court abuses its discretion if it acts arbitrarily,
unreasonably, or without reference to any guiding rules or principles. See Flowers
v. Flowers, 407 S.W.3d 452, 457 (Tex. App. —Houston [14th Dist.] 2013, no pet.).
Under an abuse-of-discretion standard, legal and factual insufficiency are not
independent grounds of error, but rather function as relevant factors in assessing
whether the trial court abused its discretion. Id. As long as some evidence of a
substantive and probative character exists to support the trial court’s decision, we
will find no abuse of discretion. Id.

      When modifying an order that provides for the appointment of a conservator
of a child, as a threshold matter, the trial court must find that “the circumstances of
the child, a conservator, or other party affected by the order have changed
materially and substantially 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[.]” Tex. Fam. Code § 156.101. The trial
court also must find that the modification would be in the child’s best interest.
Tex. Fam. Code. § 156.101. Mother does not specifically challenge the trial
court’s findings of materially and substantially changed circumstances. Nor does
she make any specific complaint or reference to any section within Chapter 156 of
the Family Code, which governs modification actions. Even so, we conclude
Mother’s issue is broad enough to encompass a challenge to the trial court’s
threshold finding. So, we address this threshold determination.

      The trial evidence consisted only of Father’s testimony. The trial court
found Father’s testimony credible, and based its findings on Father’s testimony. In
relevant part, the trial court found:

                                          11
[O]ne week after September 8, 2017, [Father] observed [Mother] at a
bus stop in Houston, Texas. . . [Mother] almost hit a car as she pulled
approached [Father] and the children. . .[Mother’s] appearance was
unrecognizable to [Father]. . .[A]s she exited her vehicle and ran
across the street she almost got hit by another car. . .The children were
present at this event. . .[Mother] grabbed five-year old
Kayla. . .[Mother] was screaming obscenities and screaming that there
[was] no court order in place and that she was taking the
children. . .that 911 was called. . .[T]his incident was the last time
[Father] saw [Mother] in person. . ..[Mother] appeared very impaired
and scared the children. . .[O]ne of the children commented that she
looked like a caged animal.
[O]ne of the children is afraid each time they see a white car because
at this incident [Mother] was driving a white car.
[A]t the time of the filing of the suit in September 2017, [Mother] did
not have a place to live with the children. [T]he children were living
in hotels with their mother.
[Mother] was using methamphetamines and living with a boyfriend
who was also using methamphetamines and who was very aggressive
to [Father].
[Father] drug tested the children on September 12, 2017. . .[A]ll three
children tested positive for marijuana.
[I]n approximately October 2017, [Mother] was accused of pointing a
weapon at someone and has been charged with a second degree
felony.
[I]n September 2017 after obtaining possession of the children,
[Father] observed signs of child abuse in the five year-old.
[Mother’s] boyfriend sent text messages threatening physical violence
to Father and his wife.
[T]he last information regarding [Mother’s] living arrangements was
that she was living in a tent with her boyfriend on a drug dealer’s
property in Bastrop, Texas. The property is known for narcotics.
[The] Hays County Sheriff’s department contacted [Father] and
relayed the following information to him:
      • In approximately mid-November 2017, Hays County
      Sheriff[’]s office received 5 to 6 phone calls within an hour that

                                   12
             a burglary was in progress at a home which served as a
             temporary residence for [Mother] and her boyfriend.
             • The [S]heriff[’]s department responded to the call.
             • [Mother] and her boyfriend stated that the cartel was in their
             attic.
             • The officer commented that the house was a drug den.
             • The officer stated that the furniture was broken, there was
             trash everywhere and that [Mother] and her boyfriend were
             acting paranoid.
             • The officer stated that [Mother] and her boyfriend stated that
             the work trucks were cartel members.
      These findings are supported by Father’s trial testimony. Father testified
that Mother “lack[ed] a place to live, [was] living in hotels with [the] children,”
suffered from “drug abuse, [her] drug of choice being methamphetamines,” and
was in a relationship with someone who used and sold drugs. Father further
testified that Mother had become homeless, and Father recounted a conversation he
had with his son that suggested that, for extended periods of time, Mother could
not provide the children a place to bathe.

      We conclude that the trial court did not abuse its discretion in finding a
material and substantial change in the circumstances of Mother and the children
since the trial court rendered its order in the previous modification suit on June 23,
2015. See In re A.L.E., 279 S.W.3d 424, 429 (Tex. App.—Houston [14th Dist.]
2009, no pet.) (concluding changed circumstances of conservator’s drug-abuse
problems significantly and negatively affecting the child were adequate to modify
conservatorship and impose restrictions on access).

1. Is the evidence legally and factually sufficient to support the trial court’s
modification removing Mother as a joint managing conservator and declining
to appoint her as a possessory conservator?
      In her second issue, Mother asserts that the trial court erred in removing her
                                         13
as a joint managing conservator and in failing to appoint her as a possessory
conservatory because the trial evidence is legally and factually insufficient to
support these actions. We consider the legal and factual sufficiency of the evidence
to show that these modifications were in the children’s best interest. See Tex. Fam.
Code. § 156.101.

      The child’s best interest holds paramount importance in making any custody
call. See Tex. Fam. Code Ann. § 153.002 (West 2014); In re V.L.K., 24 S.W.3d
338, 342 (Tex. 2000). Texas courts are to look to the following non-exhaustive list
of factors to determine the children’s best interests: (1) the desires of the children;
(2) the emotional and physical needs of the children now and in the future; (3) the
emotional and physical danger to the children now and in the future; (4) the
parental abilities of the individuals seeking custody; (5) the programs available to
assist these individuals to promote the best interest of the children; (6) the plans for
the children by the individuals seeking custody; (7) the stability of the home; (8)
the acts or omissions of the parent that may indicate that the existing parent-child
relationship is not proper; and (9) any excuse for the acts or omissions of the
parent. See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976); In re H.D.C.,
474 S.W.3d 758, 766–67 (Tex. App.—Houston [14th Dist.] 2014, no pet.).

                 Removal from Joint Managing Conservator Status

       Mother asks us to consider the best-interest factors found in section
153.134(a), which addresses a trial court’s original decision as to whether both
parents should be appointed in the first instance as joint managing conservators.
See Tex. Fam. Code § 153.134(a). Under this statute, if a written agreed parenting
plan is not filed with the court, the court may render an order appointing the
parents joint managing conservators only if the appointment is in the best interest
of the child, considering the following factors: (1) whether the physical,

                                          14
psychological, or emotional needs and development of the child will benefit from
the appointment of joint managing conservators; (2) the ability of the parents to
give first priority to the welfare of the child and reach shared decisions in the
child’s best interest; (3) whether each parent can encourage and accept a positive
relationship between the child and the other parent; (4) whether both parents
participated in rearing the child before the filing of the suit; and (5) the
geographical proximity of the parents’ residences. See id.

      Modification proceedings, however, are governed by Family Code Chapter
156, not Chapter 153. Cf. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000) (“Chapter
153 and Chapter 156 are distinct statutory schemes that involve different issues.”).
But, because the Holley factors are not exclusive, 544 S.W.2d at 371–72, courts
also may consider the section 153.134(a) factors in determining the best interest of
the child in a modification case. See In re J.S., No. 05- 16–00138–CV, 2017 WL
894541, at *3 (Tex. App.—Dallas Mar. 6, 2017, no pet.) (mem. op.); Caldwell v.
Garfutt, No. 03–14–00019–CV, 2016 WL 105920, at *5 (Tex. App.–Austin Jan. 7,
2016, pet. denied) (mem. op.). Mother complains that the evidence before the trial
court was “thin”; she asserts that the section 153.134(a) factors show that Mother
should not have been removed from her status as a joint managing conservator.

      The children did not testify. Father did not report any statements made by
the children reflecting their desires, if any, to see Mother. He reported facts
suggesting that one of the children was afraid of Mother. Father’s testimony
provided little information about his own parenting abilities and no specific details
about the stability of his own home. Father offered few details about the programs
available to assist the children, other than play therapy, which Father indicated
would be discontinued as unnecessary because the children are doing well. Father
testified that the children have been doing well academically since the trial court’s

                                         15
temporary-orders hearing.

      The balance of Father’s testimony relates to Mother’s acts and omissions,
the lack of stability of Mother’s home, Mother’s inability to provide suitable
housing, and facts that relate to the emotional and physical danger to the children
now and in the future. Mother exhibited behavior reflective of an inability to give
first priority to the welfare of the children and to reach shared decisions in the
children’s best interest (e.g., scaring the children in an apparent attempt to abduct
at least one of the children at the bus stop); and an inability to encourage and
accept a positive relationship between her children and Father (e.g., associating
with an individual who allegedly sent text messages threatening physical violence
to Father and his wife), and Father’s residence (in Houston) is not geographically
close to the places Mother was known to reside (Round Rock, Austin, Bastrop, and
Amarillo). Under both the Holley factors and the section 153.134(a) factors, the
record contains at least some evidence of a substantive and probative character to
support the trial court’s implied finding that removing Mother as a joint managing
conservator and naming Father as sole managing conservator was in the children’s
best interest. See Zewde v. Abadi, 529 S.W.3d 189, 196–97 (Tex. App.—Houston
[14th Dist.] 2017, no pet.); In re B.J.W.S., 14-08-01154-CV, 2010 WL 4396291, at
*7 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no pet.) (affirming
appointment of mother as sole managing conservator and appointing father as
possessory conservator was not an abuse of discretion upon finding that father had
been diagnosed with serious mental conditions and refused treatment, that he had
twice endangered child’s health and safety by permitting child to jump off a rocky
fountain and by leaving child alone in the car.)

      We overrule Mother’s challenge to the trial court’s removal of Mother as a
joint managing conservator.

                                         16
               Denial of Possessory-Conservatorship Appointment

      Under Texas Family Code section 153.191, the trial court found that
appointing Mother as a possessory conservator is not in the best interest of the
children and that parental possession of or access to the children by Mother would
endanger the physical or emotional welfare of the children. See Tex. Fam. Code
Ann. § 153.191. The trial court also found that if [Mother] were allowed access,
the children would be “at risk of being abused, not having proper living
arrangements and at risk of abduction.” Section 153.191, entitled “Presumption
that Parent to be Appointed Possessory Conservator,” provides that a court:

      shall appoint as a possessory conservator a parent who is not
      appointed as a sole or joint managing conservator unless it finds that
      the appointment is not in the best interest of the child and that parental
      possession or access would endanger the physical or emotional
      welfare of the child.
Id.

      Unless limited by a court order, a parent appointed as a possessory
conservator of a child at all times has the rights listed in Family Code section
153.073(a). See Tex. Fam. Code Ann. §§ 153.073, 153.192. Conversely, no
statute provides these rights to a parent not appointed as a managing or a
possessory conservator. See Tex. Fam. Code §§ 153.073, 153.075; In re I.L., 04-
18-00742-CV, 2019 WL 1549914, at *2 (Tex. App.—San Antonio Apr. 10, 2019,
no pet.). Nonetheless, under appropriate circumstances a trial court has discretion
to appoint a parent as a possessory conservator and to deny the parent possession
of and access to the children. See In re F.A., No. 02-16-00156-CV, 2017 WL
632913, at *2–6 (Tex. App.—Fort Worth Feb. 16, 2017, no pet.) (mem. op.).
Presuming, without deciding, that the evidence supports the trial court’s finding
that parental possession of or access to the children by Mother would endanger the


                                         17
physical or emotional welfare of the children, we consider whether the record
contains legally and factually insufficient evidence to support the trial court’s
finding that appointing Mother as a possessory conservatory would not be in the
children’s best interest.   See Tex. Fam. Code §153.191.          We focus on the
possessory-conservator rights that are unrelated to access and possession and that
Mother lost because she was not named a possessory conservator. See Tex. Fam.
Code §153.073(a)(1),(2),(4),(5).

      These rights include the right to receive information from Father concerning
the children’s health, education, and welfare; the right to confer with Father to the
extent possible before Father makes a decision concerning the children’s health,
education, and welfare; the right to consult with the children’s physicians, dentists,
and psychologists; and the right to consult with school officials concerning the
children’s welfare and educational status, including school activities (collectively,
the “Informational Rights”). See id.

      The trial court’s finding that Mother’s parental possession of or access to the
children would endanger the children’s physical or emotional welfare is not
inconsistent with the trial court appointing Mother to be a possessory conservator
because the trial court has discretion in appropriate circumstances to order that
Mother not have possession of or access to the children, even though she is a
possessory conservator. See In re F.A., 2017 WL 632913, at *2–6. Nothing in the
record addresses why these options would not have sufficed. Nor does any other
record evidence suggest circumstances that would warrant denying Mother the
Informational Rights.

      We conclude that the trial court abused its discretion in finding that
appointing Mother as a possessory conservatory is not in the children’s best
interest. See In re I.L., 2019 WL 1549914, at *2, 13. We would reach this

                                         18
conclusion whether or not section 153.191 applies to conservator decisions in a
modification action; therefore, we need not and do not address whether section
153.191 applies in this case. We sustain Mother’s second issue to the extent it
relates to her non-appointment as a possessory conservator.

2. Is the evidence legally and factually sufficient to support the trial court’s
complete denial of Mother’s access to the children?
      Under her third issue, Mother challenges the trial court’s complete denial of
possession of or access to her children. We consider whether, regardless of her
status as a conservator, the trial court abused its discretion in denying Mother all
possession and access.

      The order unequivocally commands that Mother “shall not have any
possession and access to the children and [Mother] is enjoined from exercising any
possession of the children or having any contact with the children.” But the order
also includes language that would suggest the possibility of access — providing
that Mother may “attempt to access the children or exercise possession of the
children at the children’s school or attempt to contact the children” if given
“permission in writing by [Father].” The law decries this type of provision that
gives Father unbridled discretion to decide whether Mother gets access to the
children. See Roosth v. Roosth, 889 S.W.2d 445, 452 (Tex. App.-Houston [14th
Dist.] 1994, writ denied) (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).

      The terms of any order that denies possession of a child to a parent or
imposes restrictions or limitations on a parent’s right to possession of or access to a
child “may not exceed those that are required to protect the best interest of the
child.” Tex. Fam. Code §153.193. So, in deciding whether the trial court abused

                                          19
its discretion, we must consider whether the restrictions exceeded what was
required to serve the children’s best interest.

      Even when courts strip parents of important parental rights, the law permits
courts to order a complete denial of possession of and access to a parent’s children
only in extreme circumstances. Tran v. Nguyen, 480 S.W.3d 119, 125–26 (Tex.
App.—Houston [14th Dist.] 2015, no pet.); In re Cassey D., 783 S.W.2d 592, 596–
97 (Tex. App.—Houston [1st Dist.] 1990, no pet.). Recognizing that some cases
raise serious concerns surrounding possession of and access to children, the Family
Code gives trial courts leeway to tailor orders on these matters to suit the unique
circumstances and potential risks a parent may present to the children’s welfare.
See In re P.A.C., 498 S.W.3d 210, 220 (Tex. App.—Houston [14th Dist.] 2016,
pet. denied) (no abuse of discretion to place restrictions on possession and require
visitation remain supervised when mother’s mental health status was “uncertain,”
coupled with concerns that mother would not follow court orders and might
damage children emotionally by demeaning their father when alone in her
custody). Reviewing courts have upheld the complete denial of possession of or
access to a child in cases in which the parent committed sexual abuse or the record
contained evidence of a risk that the parent would commit sexual abuse in the
future. See In re F.A., 2017 WL 632913, at *2–6; Tran, 480 S.W.3d at 126–27; In
re Marriage of Bonner, 10-10-00011-CV, 2010 WL 4409704, at *2 (Tex. App.—
Waco Nov. 3, 2010, no pet.) (mem. op.).

      The trial court found that “[i]n September 2017 after obtaining possession of
the children, [Father] observed signs of child abuse in the five year-old.” The
finding is based on this testimony from Father:

      when this Court ordered that I had possession, my daughter, which
      this prompted a CPS [Children’s Protective Services] case that there
      was reason to believe when it closed, a huge bruise on her face,
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       bruises on her thighs as if she was – I just assumed she was hit or
       smacked. She’s a little — she’s five years old. She definitely showed
       signs of abuse.

       Past child abuse could be so detrimental to a child’s emotional well-being as
to warrant severe restrictions. In today’s case, the record contains no evidence of
any conviction or even charges made in reference to the “signs of child abuse”
mentioned in the trial court’s findings. The testimony lacks clarity about the
conclusions in the CPS case and fails to identify Mother as the potential abuser.
See In re E.N.C., 03-07-00099-CV, 2009 WL 638188, at *21 (Tex. App.—Austin
Mar. 13, 2009, no pet.) (reversing complete denial of access where there was
evidence mother had been romantically involved with abusive partners, remained
in abusive relationship after being abused, failed to protect child from family
violence, and child had been abused on several occasions) (mem. op.); Ohendalski
v. Ohendalski, 203 S.W.3d 910, 915–16 (Tex. App.—Beaumont 2006, no pet.)
(affirmed order deviating from standard possession order (allowing possession and
access) despite a finding of a history of chronic alcohol abuse and terrorizing one
or more of the children by operating a vehicle while under the influence when the
children were passengers); Hopkins v. Hopkins, 853 S.W.2d 134, 138 (Tex. App.–
Corpus Christi 1993, no writ) (affirming order giving father two hours of
supervised visitation every other week; father had been convicted of drug delivery,
used drugs in front of children, severely abused mother and threatened her with
gun, hit older child, neglected children, denied treatment to child who suffered
head injury while in father’s care, kept extremely unsanitary house, and behaved
erratically).

       The trial court also found that Mother scared the children when she allegedly
sought to remove one of the children from Father’s physical possession shortly
after the trial court issued the temporary orders. Father testified that one of the
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children has developed a fear of white cars because Mother was driving a white car
at the time of the incident. There was no independent testimony from a therapist or
other professional addressing the issue. According to Father, at the time of the
final hearing, the children were well adjusted and their therapist recommended that
they discontinue therapy.

      Nothing in our record indicates that any of the children ever suffered any
sexual abuse or that Mother’s contact with the children would expose them to
sexual abuse. The record contains some evidence that Mother may have exposed
the children to marijuana while they were in her possession. The record contains
little evidence about Mother’s parenting ability as a single mother for the years
leading up to 2017. Until that point, the children had lived with Mother for their
entire lives. Just months after they left Mother’s custody, a therapist described the
children as not needing therapy.

      Most concerns for a child’s well-being, including those that would militate
against allowing a parent unsupervised periods of possession and access to a child
can be addressed through court-ordered restrictions on visitation. The trial court
made a finding that Mother’s boyfriend threatened violence toward Father and
Father’s wife, and that Mother had been charged for pulling a weapon on someone.
The trial court also found that Father spoke to an unidentified officer of the Hays
County Sheriff’s Department who reported to Father that Mother and her boyfriend
had told him “that the cartel was in their attic” and that “the work trucks [on the
property where the officer found them] were cartel member[’]s.” The trial court
did not make clear whether this finding was meant to suggest Mother was
entangled with a dangerous criminal organization, or that she was abusing
narcotics or to show that she had a detachment from reality, paranoia, or other
mental instability. Even so, we cannot extract from any of this evidence a legally

                                         22
sound basis for concluding that security and physical safety concerns could not be
addressed though appropriate measures short of a complete denial of possession
and access. See In re C.L.J.S., 01-18-00512-CV, 2018 WL 6219615, at *5 (Tex.
App.—Houston [1st Dist.] Nov. 29, 2018, no pet.) (mem. op.).

      The trial evidence does not show parental unfitness so extreme that even
supervised or limited parental contact or visitation would go against the children’s
best interest. See id. In light of the various means available to create a controlled,
safe visitation environment, we conclude that the trial court abused its discretion
by denying Mother all possession of and access to the children. See id. (stating
that “[w]hen, as here, there has not been a showing of parental unfitness so
extreme as to render even limited parental contact or visitation against the child’s
best interest, the total and indefinite denial of parental access is improper.”); Fish
v. Lebrie, 03-09-00387-CV, 2010 WL 5019411, at *10 (Tex. App.—Austin Dec.
10, 2010, no pet.) (reversing order denying father access, holding “that the trial
court abused its discretion in entering an order not supported by the kind of
evidence that would allow for a complete denial of access.) (mem. op.); In re
E.N.C., 03-07-00099-CV, 2009 WL 638188, at *21 (Tex. App.—Austin Mar. 13,
2009, no pet.) (reversing complete denial of access where the record contained
evidence mother had romantic involvement with abusive partners, remained in
abusive relationship after being abused, failed to protect child from family
violence, and child had been abused on several occasions) (mem. op.).

      The record does not support the trial court’s implicit finding that this denial
of all access did not exceed what was required to protect the children’s best
interests. See Tex. Fam. Code §153.193. Accordingly, we sustain Mother’s third
issue to the extent she challenges the trial court’s denying Mother all possession of
and access to the children.

                                         23
                                  III. CONCLUSION

      The trial court did not abuse its discretion in denying Mother’s motion for
new trial in which she asserted that she had no notice of the trial setting. The
record supports the trial court’s implied finding that the circumstances of the
children, conservator, or other party affected by the previous order materially and
substantially changed. The record evidence supports the trial court’s removal of
Mother as a managing conservator.

      The trial court abused its discretion in finding that appointing Mother as a
possessory conservatory is not in the best interest of the children, in failing to
appoint Mother as a possessory conservator, and in denying Mother all possession
of and access to the children. So, we reverse all parts of the trial court’s final order
in which the trial court fails to appoint Mother as a possessory conservator, rules
that Mother should not be a possessory conservator, or denies Mother all
possession of or access to the children. We remand this case to the trial court with
instructions to issue a new order in which the trial court appoints Mother as a
possessory conservator and grants Mother the amount of possession or access
(including any appropriate restrictions) that is in the children’s best interest.



                                         /s/    Kem Thompson Frost
                                                Chief Justice

Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.




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