Appeal from the 300th District Court Brazoria County, Texas
Trial Court Cause No. 73138
consists of Justices Christopher, Jamison, and Donovan.
and J.P. are the parents of J.R.P., a minor
child. A.M., who is appealing the order modifying
conservatorship, contends that the trial court abused its
discretion in granting the motion. We affirm.
conservatorship of a child has been established, it cannot be
attacked in less than one year unless the movant states under
oath that the child is endangered, or under other facts not
relevant here. Tex. Fam. Code § 156.102. Here, the
governing conservatorship order was entered in December 2013,
granting A.M. and J.P. joint managing conservatorship of
their son, J.R.P., and giving A.M., as the primary joint
conservator, the exclusive right to determine the child's
primary residence. In May 2014, J.P. filed a petition to
modify that order, requesting the court give him the
exclusive right to determine J.R.P.'s primary residence.
J.P. alleged in his affidavit the following:
It has come to my attention that [A.M.] has been taking drugs
while in possession and control of our son [J.R.P.]. Such an
environment would endanger our child's physical health or
significantly impair our child's emotional development.
temporary orders hearing was conducted on June 23, 2014. A.M.
requested dismissal, alleging J.P.'s affidavit was
insufficient to support a modification filing within one year
of a final judgment. The court sustained A.M.'s
objection, finding the affidavit insufficient; however, it
declined to dismiss the case. The parties agreed A.M. would
submit to drug testing, which the court ordered to take place
the following day.
15, 2014, J.P. filed a first amended petition to modify
conservatorship. J.P. amended his affidavit to reflect A.M.
testing positive for drug usage. J.P.'s amended affidavit
stated, in pertinent part:
According to United States Drug Testing Laboratories test
results, [A.M.] has been taking drugs while in possession and
control of our son [J.R.P.]. A correct copy of the drug test
results are attached hereto as Exhibit A and incorporated
herein for all purposes. Accordingly, the living environment
[A.M.] subjects our child to endangers our child's
physical health and in all probability significantly impairs
our child's emotional development.
same date, the trial court conducted a temporary orders
hearing. The parties were both represented by counsel. After
the hearing, however, A.M.'s attorney filed a motion to
withdraw which was granted.
August 29, 2014, the court entered temporary orders, noting
the parties appeared on July 15, and that "[t]he Court,
after examining the record and the agreement of the parties
and hearing the evidence and argument of counsel, finds that
all necessary prerequisites of the law have been legally
satisfied and that the Court has jurisdiction of this case
and all of the parties." The trial court found from the
evidence presented that "the present living environment
significantly impairs the physical health and/or emotional
development of the child." The trial court set forth,
"the following orders are for the safety and welfare and
in the best interest of [J.R.P.]." With its temporary
orders, the trial court awarded J.P. primary conservatorship
of J.R.P. and A.M. supervised possession. This order was
signed by the parties on August 24, 2014.
27, 2015, a three-nonconsecutive-day,  non-jury trial
began with A.M. appearing pro se. The trial court
took judicial notice of the First Amended Petition to Modify
Parent-Child Relationship, which included a copy of
A.M.'s drug test results that were positive for use of
methamphetamine and marijuana. A.M. stated she wanted to
object, but no proper objection was made, and there was no
formal ruling from the trial court on any objection.
testified that he had suspicions A.M. was using drugs after
they separated. The trial court also heard testimony from
Jacqueline Weaver, an investigator with Children's
Protective Services ("CPS"). Weaver testified she
became familiar with A.M. as the alleged perpetrator in a
report of abuse or neglect. Weaver stated that J.R.P. was at
risk due to A.M.'s drug abuse. A.M. admitted during a CPS
team meeting to drug use. A.M. refused to participate in a
drug test requested and in services offered by CPS. Weaver
further testified that A.M. expressed concerns about abuse in
J.R.P.'s paternal grandparents' home; however, J.R.P.
had made no outcry and the CPS recommendation was to get A.M.
drug tested. A.M. admitted to using Xanax and Adderall,
marijuana over Spring Break, and methamphetamines at the end
of the prior year. Weaver further testified that A.M.'s
mother shared her concerns about A.M.'s drug use.
A.M.'s father discussed with Weaver that A.M. has
emotional issues when J.R.P. visits for extended periods,
concluding that is when she used drugs. Weaver further
testified A.M. behaved strangely at their face-to-face
meeting, crying, yelling, and leaving the room. Weaver
acknowledged that A.M. told her that J.R.P. claims his
paternal grandmother hurt him, but J.R.P. refuses to say how.
Weaver also testified that J.P. had confessed to past drug
use. When A.M. attempted to question Weaver regarding
J.P.'s domestic violence, the court stated that Weaver
had no information with regard to domestic violence. Weaver
testified that CPS closed its investigation with a finding of
"Reason to Believe" on A.M. because she admitted to
29, 2015, with A.M. again appearing pro se, the
trial continued with J.P. being recalled as a witness. J.P.
testified that A.M.'s behavior had changed since the
entry of the final judgment issued in December 2013. A.M. was
impaired during possession periods; she was unstable,
erratic, and sent emotional text messages and banter. J.P.
further testified that this behavior concerned him about her
care of their son.
testified that when J.R.P. was with him, J.R.P. was attending
preschool and doing well; he had his own room at J.P.'s
house. J.P. testified he filed a complaint with CPS regarding
A.M.'s drug use around April 2014. He said he had a great
deal of indirect evidence or knowledge about A.M.'s drug
abuse. J.P. testified that A.M.'s drug test showed an
extreme amount of methamphetamine and a high level of
marijuana in A.M.'s system. He further opined that even
without these findings he would have continued the case for
modification because A.M. was abusing prescription
medication. A.M. acknowledged she had been arrested on this
basis. A.M. attempted to enter evidence regarding frivolous
pleadings, but the trial court sustained the objection to
relevance lodged by counsel for J.P.
21, 2015, trial continued with A.M. having retained counsel.
A.M. called Bruce Jeffries, the owner of the drug screening
company that tested A.M., to testify. Jeffries testified
"he was told" that in a fingernail drug test
Adderall, a medication prescribed to A.M., could cause a
false positive for methamphetamine. J.P.'s counsel
objected to this testimony, which was sustained by the trial
also underwent cross-examination, wherein he admitted to
having pled guilty to assault. No details of the offense were
allowed into evidence by the trial court, and J.P.'s
objection was sustained as res judicata, as it had
been considered prior to the agreed final decree in December
2013. J.P. further testified that a picture of A.M. drinking
with J.R.P. was actually taken prior to the agreed final
decree being entered in December 2013. J.P. conceded that he
had never seen A.M. abstain from drugs for an extended period
of time. He testified that A.M.'s mother found A.M.
passed out with crystal methamphetamine and marijuana in her
purse. J.P. testified that he thought A.M. had stopped using
drugs when he signed the agreed final decree in December
2013, as A.M. had passed a drug test in October 2013. J.P.
later learned from an acquaintance that A.M. was using drugs
again. J.P. testified that he wanted J.R.P. to be in a
controlled, safe environment. According to J.P., his motion
to modify was based on A.M.'s erratic behavior, refusal
to participate in CPS's programs, and the positive drug
test. A video was played before the trial court,
demonstrating A.M.'s behavior that concerned J.P.
testified that she felt wrongfully accused of drug abuse and
was shocked when the results came back. She stated CPS was
prejudiced against her because of the false positive drug
results. According to A.M., she quit taking all of her
prescriptions, including Adderall. A.M. testified she lived
with her parents and is on her parents' health insurance.
She does not own a car. She has only worked for six months.
A.M. testified she smoked marijuana in May 2014, and had
smoked methamphetamine in the past.
August 14, 2015, the trial court granted J.P.'s petition
to modify. The trial court entered an order to modify
parent-child relationship, appointing J.P. and A.M. as joint
managing conservators with J.P. having the right to designate
the primary residence of the child. A.M. was ordered to pay
child support monthly to J.P. and his attorney's fees.
September 10, 2015, A.M. filed a motion for new trial,
challenging the judgment on three grounds: (1) it was legally
insufficient because neither J.P.'s petition nor his
affidavits provided the trial court with adequate facts to
support an allegation the child's present environment may
endanger J.R.P.'s physical health or significantly impair
his emotional development; (2) there was insufficient
evidence of a material and substantial change to the