AlTirnied and Opinion Filed February 2, 2013.




                                               In The
                                     Qinitrt   tif      prak
                             FiftIi Diitrirt   tif   Jexa at IaUw3
                                       No. 05-1 1 -00377-CV


                              In the Interest of L.C.L., A Minor Child



                       On Appeal from the 254th Judicial District Court
                                    Dallas CoLink. Texas
                           Trial Court Cause No. I)F—99—08123—R

                                            OPINION
                             Belore Justices Moseley, Francis. and Lang
                                      Opinion by Justice Lang
       Mi., the mother of L.CL, appeals the trial court’s order in a suit to modify the parent—

child relationship. The trial court found there was a history or pattern of family violence by ML.

toward L.C.L, appointed P.L., the fhther of L.C.L, as the sole managing conservator of the child,

and ordered that M.L.’s possession and access to L.C.L. be restricted to supervised possession by

a professional supervisor.

       M.L. raises tve issues on appeal, arguing: (I) the trial court erred when it indicated that it

was basing its ruling on evidence offered at prior hearings that was not offered or admitted into

evidence during the trial on the suit to modify the parent-child relationship; (2) there was no

evidence to support the trial court’s finding of a history or pattern of family violence: (3) there

was insufficient evidence to support the trial court’s finding of a history or pattern of family
violence, (4) the evidence was legally and factually insulhcient to support the trial court’s

appumtment of P. L. as the sole managing conservator of the child: and (5) the       C\   idence was

legally and hiclually insuflicient to support the trial courts order that ML. ‘s periods of

possession and access be supervised by a professional supervisor.

        We conclude the trial court did not err because Mi. has not shown the trial Court

considered the testimony and evidence presented at prior hearings      Also, we conclude the trial

court did not abuse its discretion when it found a pattern and history of family violence.

appointed Rh. as the sole managing conservator, and ordered that M.L’s periods of possession

and access be supervised by a professional supervisor.      The trial court’s order in this suit to

modify the parent-child relationship is affirmed.

                              1. PROCEDURAL BACKGROUND

        In 1999. P. L. and M. L. divorced. Pursuant to the terms of the divorce decree, they were

appointed joint managing conservators of L.CL.         in 2009. P.L. tiled a motion to modify the

parent—child relationship seeking to modify the divorce decree and appointment as sole managing

conservator of L.C.L. Before trial, P.L. filed an emergency motion seeking, in part, to suspend

M.L’s visitation with L.C.L. After a hearing, the associate judge suspended M.L.’s visitation.

ML. filed a counterpetition to modify the parent-child relationship requesting that she be named

the parent with the exclusive right to determine the primary residence of L.C.L. and that the

parties return to their equal periods of possession.

       After a trial on the petition and counterpetition to modify the parent-child relationship.

the trial court found that a history or pattern of family violence by M.L. toward L.C.L. existed

during the two-year period preceding the filing or during the pendency of the suit. Also, the trial

court appointed P.L. the sole managing conservator of L.C.L., named M.L. the possessory
conservator of LC.L, and ordered that M.L’s possession and access to L.C.L be restricted to

supervised possession by a professional supervisor.

            IL DETERMINATION BASED ON EVIDENCE OFFERED AT TRiAL

       In issue one, Mi. argues the trial court erred when it allegedly indicated before the trial

that it had made a determination of what it intended to rule based on evidence presented at

previous hearings and prior to the presentation of evidence at final trial. She contends that

testimony and evidence from the prior hearings in the case was not offered or admitted during

the trial on the suit to modify the parent-child relationship, but the trial court relied on that

evidence when ruling. She concedes that the trial court took judicial notice “of the entire file,”

but maintains that included only the documents that appear in the clerk’s record, not prior

testimony and evidence. P.L responds that ML. failed to preserve this issue for appeal because

she did not object to the trial court’s alleged judicial notice of the testimony and evidence from

prior hearings. Also, P.L. argues the trial court may take judicial notice of its file and make

comments to manage its docket in an efficient manner. Further, he argues nothing the trial court

did constituted an abuse of discretion.

       Therecordshowsthatduringopeningargumentatthetrialonthesuittomodifythe

parent-child relationship, the following exchange between M.L.’s trial counsel and the trial court

occurred:

       COUNSEL:        Your Honor, we’ll object—to trial by consent and we’ll object to any
                       evidence or arguments that go beyond the pleadings before the Court

                       Your Honor, this Court has made an observation at one point that the
                       Court already knows what it wants to do in this case and

       COURT:          Well, Counsel, may I remind you it’s not like I haven’t had close to a
                       dozen hearings on this case already, which have probably been more than
                       any other case I’ve had in the last two years.

       COUNSEL:        I can appreciate that

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        (ill 1< I;           We’ve probably had close to a week trial time already in this case:
                             a read.

                             So it’s not like I don’t know these folks and it’s not like I haven’t     seen
                             them and their behaviors over the last two and a half’ years.

        COt N Ski.:          Well, Your Honor, I would just ask the Court

        COUR1’:              You are the newbies. sir. absolutely; but I will keep an absolute open mind
                             and I’m eager to hear from the witnesses that you ye all brought today.

        COUNSEL:             Thank you, Your Honor.


Also, during the testimony, P.L. requested that the trial court take judicial notice of petitioner’s

motion for en forceinent. The trial court responded. “The         Court   takes notiee of the entire file.’’

ML. did not object.          Further. at the beginning of Dr. Benjamin Aibritton’s testimony, when

discussing the necessity to prove up his expertise. counsel for P.L. stated, “As Dr. Albritton has

testified several times prior, although not in front of [M.L’s counsel], it’s my understanding that

the [trial eourtI is going through the body of testimony. Do we need to prove—up the expertise of

this witness again?’’        T he trial court responded that “I think Dr. Albritton’s reputation and

expertise precedes him ....if not in this entire courthouse.”

        M.L. relies on these exchanges between counsel and the trial court to support her claim

that “[ajt no time did the [trial court] deny making the statement that he already knew what he

wanted to do in the case.” However, the record shows that the trial court clarified its statement

and made clear that     it    would “keep an absolute open mind” and was “eager to hear from the

witnesses.” Further. we note that N’I[.L. argues in her brief and reply brief on appeal that “[i]fthe

trial court took judicial notice of any of the prior hearings    ...   it would have had to give notice to

the parties.” (Emphasis added.)




                                                      4
         Mi. does not point us to, nor could we [md, an express statement by the trial court that it

was considering the evidence and testimony from prior hearings. This court decides issues based

on the record on appeal. &e generally, Stewart v. C. L Trammel! Prop.. Inc., No. 05040 1 027

CV, 2005 WI. 2234637, at *2 (Tex. App—Dallas Sept. 15, 2005, no pet.) (mem. op.) (appellate

court cannot consider documents or hearings cited in brief on appeal and attached as appendices,

if they are not formally part of the record); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App—

Dallas 2005, no pet.).              The record does not support M.L.’s contention, on which her legal

argument is premised, that the trial court considered evidence or testimony from prior hearings.

Issue one is decided against M.L.

                                    III. SUFFiCIENCY OF THE EVIDENCE

         In issues two through five, Mi. argues the evidence is insufficient to support the trial

court’s finding of a pattern and history of family violence, appointing P.L. as the sole managing

conservator, and order that M.L.’s periods of possession and access be supervised by a

professional supervisor.

                                                    A. Standard of Review

         An appellate court reviews a trial court’s order regarding child custody, control,

possession, and visitation for an abuse of discretion. In re H.N.T., 367 S.W.3d 901, 903 (Tex.

App—Dallas 2012, no pet.); Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex. App—Dallas 1999,

no pet.). A trial court abuses its discretion when it acts arbitrarily and unreasonably without

reference to guiding principles. In re H.N,T, 367 S.W.3d at 903; In re WC.B, 337 S.W.3d 510,

5 13 (Tex. App Dallas 2011, no pet.). In family law cases, the abuse of discretion standard of

review overlaps with traditional standards of review. In re H.N.T, 367 S.W.3d at 903; In re


 “All opinions and memorandum opinions in civil eases issued after [January 1. 2003j have precedential value.” TEX. R. App. P. 47.2 cmt.. 47.7
 emt.: see also R.,J Sua,s’e Enters., Inc. v. PNY.k1 L.P., 380 5.W.3d 238. 243 n,2 (fex. App.—1)allas 201 2. no pet.).
WC.B, 337 S.W.3d at 513.         As a result, legal and factual insufticiency are not independent

grounds of reversible error, hut instead are hictors relevant to an appellate court’s assessment of

whether the trial court abused its discretion. In re HALT. 367 S.W3d at 903; In re WCB, 337

S.W 3d at 5 I 3    To determine whether the trial court abused its discretion, an appellate court

considers whether the trial   court   had sufficient evidence on which to exercise its discretion and

erred in its exercise of that discretion, In re [[ALT, 367 S.W.3d at 903; In re WCB, 337 S.W.3d

at 513. As long as some evidence of a substantive and probative character exists to support the

trial court’s judgment, an appellate court will not substitute its judgment for that of the trial

court. In re HALT. 367 SW 3d at 903.

                                  B. Finding of Fain i
                                                     v
                                                     t      Violence


          In issues two and three, Mi. argues there is no evidence or insufficient evidence to

support the trial court’s finding that a history or pattern of family violence by ML. toward

L.C.L. existed during the twoyear period preceding the filing or during the pendency of the suit.

She contends the events alleged do not meet the definition of family violence and there is no

evidence that L.C.L. was injured. Rather, she argues these alleged events were disciplinary in

nature.     P.L. responds that almost every mental health professional involved corroborated

L.C.L.’s reports of M.L.’s acts of physical aggression toward him and confirmed L.C.L.’s

fearfulness of ML.

                                          1. Applicable Law

          The Texas Family Code provides that “family violence” means      “an   act by a member of a

family or household against another member of the family or household that is intended to result

in physical hann, bodily injury, assault, or sexual assault or that is a threat that reasonably places

the member in fear of imminent physical harm, bodily injury, assault, or sexual assault, but does

not include defensive measures to protect oneself” TEx. FAM. CoDE ANN.               71.004(1) (West


                                                    6
2008); see also TEx. PAM. CODE ANN.                       §   101.0125 (West 2008) (applying definition in section

71.004 to suits affecting parent-child relationship).                      A single act of violence or abuse can

constitute a “history” of physical abuse for purposes of section 153.004 of the Texas Family

Code. In        it   IN, No. 05-08-01563-CV, 2009 WL 3353629, at 2 (Tex. App—Dallas Oct. 20,

2009, no pet.) (man. op.); Alexander v. Rogers, 247 S.W.3d 757, 762-63 (Tex. App—Dallas

2008, no pet.); see also Thx. FAM. CODE ANN.                       §   153.004 (West 2008) (court may not appoint

joint managing conservators if evidence of history of physical abuse).

                                          2. Application of the Law to the Facts

            In P.L.’s first amended petition to modify the parent-child relationship,
                                                                        2 he alleged a

history or pattern of family violence by ML. toward L.C.L. During the trial, in response to the

question “Has [M.L.] ever hurt [LC.L.]?” Dr. Benjamin Aibritton answered “Yes.” Also, in

response to the question “What did she do?” Dr. Albritton stated that M.L had “[g]rabbed

[LC.L.’s] lips and pulled them towards herself for disciplinary purpose[s] with her fingernails

and also [he] believe[d] [M.L] grabbed [L.C.L’s] arms with her fingernails at one point as

well.” Further, Dr. Albritton’s report, which was admitted into evidence without objection,

stated that “[L.C.L] still had fears of physical violence by [M.L]” In addition, Dr. Albritton

stated that he believed L.C.L. would be in danger if he was alone with M.L Dr. Jay Crowder

testified he reviewed a report from Dr. Van Hoose, which stated that M.L admitted to “slapping

[LC.L.] once long ago.” Also, in response to the question “[i]s there any indication that

[M.L.]’s been physical with [LC.L]?” Dr. Crowder stated that she “pulled [LC.L.] by the lips,

scratched [him] on the baclc [and] directed [him] by the chin aggressively.” A single act of

violence or abuse can constitute a “history” of physical abuse. See In it J.N, No. 05-08-01563-

2
    me trial court anck P.L.’s second amended petition.




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CV, 2009 WI 3352). at 2: :1 iexainlt’r. 247 SW                       at 76263   Ac cordinlv, we conclude the

trial court did not abuse its discretion when            it   tdund a pattern or history ol family violence 1w

M. I   .   toward [I (.1       because some evidence of a substantive and probative character exists to

suppoi-L the trial court’s j udument.

               Issues two and three are decided against M L.

                                           C. Sole Man a,ç’inç’   Conservator


               In issue four, M.L. argues the evidence was legally and factually insufficient to support

the trial court’s appointment of P.L. as the sole managing conservator of the child. She claims

there was no evidence that a material and substantial change in circumstances had occurred

which is necessary to modify the prior order [or conservatorship and there is a statutory

presumption that the parents shall be appointed Joint managing conservators of the child. Ph.

responds that M. L. judicially admitted the existence of a material and substantial change in

circumstances and there was ample evidence to support the trial court’s appointment of P.L. as

the sole managing conservator.

                                                 1. Applicable Law

               Under section     156.101     of the Texas Family Code, a trial court may modify

conservatorship of a child if the modification is in the childs best interest, and the circumstances

of the child, a conservator, or other party affected by the existing conservatorship order have

materially and substantially changed since the rendition of the existing order. TEx. FAM. CODE

ANN.       §   156.lOl(1)(A) (West Supp. 2012) Iii cc A.B.P., 291 S.W.3d 91, 95 (Tex. App—Dallas

2009, no pet.).         To demonstrate that a material and substantial change of circumstances has

occulTed. the evidence must show 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. See in         ic   WC.B., 337 S.W.3d at 5 l4 in cc A.B.P., 291 S.W.3d at 95; In re CC.]., 244


                                                              8
S.W.3d 911. 919 (Tex, App— 1)allas 2008, no pet.).           One party’s allegation of changed

circumstances of the parties constitutes a judicial admission of the common element of changed

circumstances of the parties in the other party’s similar pleading. See Delaney v Sc/ieee, No. 03-

02-00273-CV, 2003 WL 247110, at 5 (Tex. App.—Austin Feb. 3, 2003, no pet.) (mem. op.).

Admissions in trial pleadings are regarded as judicial admissions in the case that pleading was

filed, require no proof of the admitted fact, and authorize the introduction of no evidence to the

contrary. Thompson v Thompson, 827 S.W.2d 563, 566 (Tex. App.—Corpus Christi 1992, writ

denied),

        Section l53l31(    ) of the Texas Family Code provides that the appointment of a parent
as a joint managing conservator is presumed to be in the best interest of a child unless the trial

court finds that there is a history of family violence. Tr:x. F\M. CoDE ANN.      § 153.131(b) (West
2008). Further, the trial court is actually prohibited from naming a party as a joint managing

conservator if “credible evidence is presented of a history or pattern of past or present child

neglect, or physical or sexual abuse by one parent directed against   ...   a child.” TEx. FAM. CODE

ANN.   § 153.004(b) (West 2008).
                             2. Application of the Law to the Facts

        First, we address M.L.’s claim there was no evidence that a material and substantial

change in circumstances had occurred. In P.L.’s first amended petition to modify the parent-

child relationship, he generally alleged

        The circumstances of the child, a conservator, or other party affected by the order
        to be modified have materially and substantially changed since the date of
        rendition of the order to be modified. [P.L.j strongly desires a stable, health[yJ
        parent-child relationship that ensures the child’s emotional and physical safety.

Similarly, in M.L.’s counterpetition to modify the parent-child relationship, she generally alleged

that the “circumstances of the child, a conservator, or other party affected by the order to be



                                                9
modified have materially and substantially changed since the date of rendition of the order to be

modified.”     Ilowever. P.1. and M.L. sought different relief in their petitions to modify the

parent-child relationship.      Nevertheless, P.1’s and M.L’s modification claims contained a

common essential element, i.e., each required proof of the changed circumstances of the child, a

conservator, or other party affected by the order to be modified. M.L’s allegation of changed

circumstances constitutes a judicial admission of that same essential element in P.L.’s claim for

modification of the parent-child relationship even though M.L did not request the same relief:

See Delanc’v. 2003 WI 247110. at *5

        Second. we address M.I.’s claim that there is a statutory presumption that the parents

shall be appointed joint managing conservators of the child. The record shows the trial court

found that there was a history of family violence and we have affirmed that finding. As a result,

the trial court was prohibited from naming M.L. as a joint managing conservator. See TEX. PAM.

CODE ANN. § 153.004(b).

        We conclude the trial court did not abuse its discretion when it appointed P.1. as the sole

managing conservator of the child. Issue four is decided against M.L.

                           D. Supervised Possession and Access to the Child

        In issue five, M.L. argues the evidence was legally and factually insufficient to support

the trial court’s order that M.L.’s periods of possession and access be supervised by a

professional supervisor. She claims the trial court did not order the least restrictive means of

possession and access possible to a parent, and its restrictions exceed those required to protect

the best interests of the child. Further, she argues the letter by Dr. Albritton, which was sent to

the trial court, is vague as to the actual events referenced. P.L. responds that the court-appointed

experts recommended restricting M.L.’s access to L.C.L. supplies sufficient evidence to support

the trial court’s order.


                                                 10
                                        I. Applicable Law

       The trial court is required to bbco,Isjder the commission of family violence in determining

whether to deny, restrict, or limit the possession of a child by a parent who is appointed as a

possessory conservator.” Tux. FAM. Corni ANN. § 153.004(c). A trial court “may not allow” a

parent to have access to a child when it is shown that there is a history of family violence, unless

the trial court (I) finds that awarding the parent access to the child would not endanger the

child’s physical health or cmotional welfare and would be in the best interest of the child and (2)

renders a possession order that is designed to protect the safety and well-being of the child and

any other person who has been a victim of family violence committed by the parent. Tix. FAM.

CODE ANN. * 353.004(d). That order may require that the periods of access be continuously

supervised by an entity or person chosen by the court.                TEX. FAM. CODE ANN.          §
153.004(dX2)(A). It is a “rebuttable presumption that it is not in the best interest of a child for a

parent to have unsupervised visitation with the child if credible evidence is presented of a history

or pattern of [physical abusc] by that parent directed against the other parent.” Ux. FAM. CODE

ANN. * 153.004(e).

                             2. ApplicatIon of the Law to the Pacts

       The trial court ordered that all periods of M.L.’s possession of L.C.L., except holidays

and the child’s birthday, shall be supervised at Hannah’s House Supervised Visitation and

Exchange Center or Faith and Liberty’s Place Family Center.           However, during Christmas,

Thanksgiving. New Year’s Day, LC.L.’s birthday, and Mother’s Day, the trial court ordered the

supervised possession of LC.L. could be with Hannah’s House, Faith and Liberty’s Place, or

M.L.’s mother.

       The trial court found a history or pattern of family violence by M.L. toward LC.L.

Supervised visitation at a visitation center is one of the trial court’s options granted by the


                                                 11
legislature under those circumstances, See TEX, LAM.          CODE ANN,    § I 53.004(   )(2)(A). Also, Dr.

Albritton testified that he believed ML ‘s access to LC,L. should he supervised and was

“paramount   [] for [LC. L. ‘sj   safety and wel I-being.” Further. he stated that visitation supervised

by M.L.’s mother was not going well as M.L had conflicts with her mother. Accordingly, we

conclude the trial court did not abuse its discretion when it ordered that Mi’s periods of

possession and access be supervised by a professional supervisor.

       Issue five is decided against ML.

                                          IV. CONCLUSION

       The trial court did not err because     it   based its rulin on the evidence presented at the trial

of the suit to modify the parent—child relationship.            Also, the trial court did not abuse its

discretion when it found a pattern and history of family violence, appointed P.L as the sole

managing conservator, and ordered that M.L.’s periods of possession and access be supervised

by a professional supervisor.

       The trial court’s order in a suit to modify the parent-child relationship is affirmed.




I lO377F.P05
                                                                       S. LANG




                                                       12
                                 Q.tiurI nf  ipiaI
                         FiftIi Oiitrirt nf cxas at DaI1a
                                          JUDGMENT

IN THE INTEREST OF L.C.L,, A MINOR                    On Appeal from the 254th Judicial District
CHILD                                                 Court. Dallas County, Texas
                                                      Trial Court Cause No. DF99-O8l23R,
No. O51 1OO377CV             V.                       Opinion delivered by Justice Lang. Justices
                                                      Moseley and Francis participating.


         In accordance with this Courts opinion of this (late. the trial court s order in a suit to
inodi iv the parent—child relationship is AFFI RMEI).
         It is ORDIRED that Paul Lewis recover his costs of this appeal trom Man Sue Lewis.


Judgment entered this 2th day of February, 21)13.




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