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In re J.R.P.

Court of Appeals of Texas, Fourteenth District

July 11, 2017


         On Appeal from the 300th District Court Brazoria County, Texas Trial Court Cause No. 73138

          Panel consists of Justices Christopher, Jamison, and Donovan.



         A.M. and J.P. are the parents of J.R.P., a minor child.[1] A.M., who is appealing the order modifying conservatorship, contends that the trial court abused its discretion in granting the motion. We affirm.

         I. Background

         After a 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.

         A 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.

         On July 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.

         On that 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.

         On 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.

         On May 27, 2015, a three-nonconsecutive-day, [2] 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.

         J.P. 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 drug use.

         On May 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.

         J.P. 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.

         On July 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 court.

         J.P. 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.

         A.M. 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.

         On 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.

         On 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 parent-child ...

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