Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 364th District Court Lubbock County, Texas
Trial Court No. 2012-504, 544; Honorable William R. Eichman
QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
PATRICK A. PIRTLE JUSTICE.
2015, the trial court entered its Final Order in Suit
Affecting the Parent-Child Relationship, in which it
appointed Appellee, the Texas Department of Protective and
Regulatory Services, as permanent sole managing conservator
of N.L.M.-B. Appellant, D.B., the child's father, was
named possessory conservator. Seven months later, the
Department filed its petition to modify conservatorship
alleging that circumstances had materially and substantially
changed. Trial was to a jury which found that the child's
maternal grandfather, J.M., should be named permanent sole
managing conservator. Based on the jury's verdict, the
trial court signed its Order Modifying Parent-Child
Relationship naming J.M. as permanent sole managing
conservator and continuing D.B. as possessory conservator.
D.B. challenges that order by a sole issue questioning the
sufficiency of the evidence to establish a material and
substantial change in circumstances between the 2015 order
and the modification order. He does not challenge the best
interest finding. We affirm.
2012, the child was removed from her home based on her
mother's neglectful supervision and drug use. The
Department eventually placed the child with her maternal
grandfather. During the pendency of the case, D.B. was
incarcerated after his community supervision for driving
while intoxicated was revoked. He began serving a five-year
sentence on October 30, 2013.
the Department filed its motion to modify conservatorship and
have the child's maternal grandfather appointed sole
managing conservator, D.B. countered with a pro se
petition for joint managing conservatorship and to dismiss
appointment of the maternal grandfather as sole managing
conservator. Two months later, with assistance of counsel,
D.B. filed his Counter-Petition to Modify Parent-Child
Relationship. By his petition, he recited, "[t]he
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." (Emphasis added).
trial, the child's caseworker testified to what she
believed to be material and substantial changes which would
support modification of conservatorship. Other witnesses
included the child's maternal grandfather, D.B., his
mother, and his girlfriend. Each testified in support of
their respective positions regarding modification of
conservatorship. The jury found in favor of the Department
and the trial court's order reflects the jury's
trial court may modify a prior conservatorship order if
modification would be in the best interest of the child and
the circumstances of the child, a conservator, or other party
affected by the order have materially and substantially
changed since rendition of the prior order. Tex. Fam. Code
Ann. § 156.101(a)(1)(A) (West 2014). There are no fixed
guidelines as to what constitutes a material and substantial
change in circumstances. See In re N.R.T., 338
S.W.3d 667, 679 (Tex. App.-Amarillo 2011, no pet.).
burden to establish a material and substantial change in
circumstances by a preponderance of the evidence falls on the
party seeking modification, in this case, the Department.
Agraz v. Carnley, 143 S.W.3d 547, 553 (Tex.
App.-Dallas 2004, no pet.). A material and substantial change
occurs when the party seeking modification demonstrates the
conditions that existed at the time of entry of the prior
order as compared to the circumstances existing at the time
of the modification hearing. Zeifman v. Michels, 212
S.W.3d 582, 589 (Tex. App.-Austin 2006, pet. denied).
jury's findings in a conservatorship case are reviewed
under the ordinary legal and factual sufficiency
standards. In re A.L.H., 515 S.W.3d 60, 80
(Tex. App.- Houston [14th Dist.] 2017, pet. denied). In
reviewing evidence for legal sufficiency, we view the
evidence in the light most favorable to the finding,
crediting favorable evidence if a reasonable fact finder
could, and disregarding contrary evidence unless a reasonable
fact finder could not. City of Keller v. Wilson, 168
S.W.3d 802, 822, 827 (Tex. 2005). A factual sufficiency
review requires us to examine the entire record and set aside
a jury's finding only if it is so contrary to the
overwhelming weight of the evidence as to be clearly wrong
and unjust. In re A.L.H., 515 S.W.3d at 80. The
jury, as the fact finder, is the sole judge of the
credibility of the witnesses and the weight to be given their
testimony. City of Keller, 168 S.W.3d at 819. We may
not substitute our judgment for that of the fact finder's
even if we would reach a different answer on the evidence.
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402,
407 (Tex. 1998), cert. denied, 525 U.S. 1017, 119
S.Ct. 541, 142 L.Ed.2d 450 (1998).
court's order modifying conservatorship is reviewed for
abuse of discretion. Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982); Nichol v. Nichol, No.
07-12-00035-CV, 2014 Tex.App. LEXIS 492, at *7 (Tex.
App.-Amarillo Jan. 15, 2014, no pet.) (mem. op.) Absent a
clear abuse of discretion, the trial court's order
modifying the prior order will not be ...