Appeal from the 39th District Court Haskell County, Texas
Trial Court Cause No. 12265
consists of: Willson, J., Bailey, J., and Wright, S.C.J.
WRIGHT SENIOR CHIEF JUSTICE
challenges the trial court's denial of her petition to
modify the parent-child relationship. In her sole issue on
appeal, B.M. contends that the trial court abused its
discretion when it found that it was in the child's best
interest to allow Appellee, J.M., to continue to have the
right to determine their child's primary residence. We
and J.M. were divorced in April 2016. The trial court
appointed both B.M. and J.M. as joint managing conservators
of their child, S.G.M. Following a jury trial, the trial
court granted J.M. the exclusive right to designate
S.G.M.'s primary residence without regard to geographic
location. In October 2016, B.M. filed a motion for
enforcement, in which she alleged that J.M. had violated
various terms of the final decree of divorce. A month later,
J.M. filed a "Petition to Modify Parent-Child
Relationship, Counter-Motion for Enforcement, and Request for
Temporary Orders After Hearing." In that filing, J.M.
alleged that "[t]he circumstances of the child, a
conservator, or other party affected by the order to be
modified have materially and substantially changed." In
February 2017, B.M. filed a counter-petition to modify the
parent-child relationship, in which she alleged that
circumstances had changed such that the trial court should
award her the right to designate S.G.M.'s primary
a hearing, the trial court, among other things, denied
B.M.'s counter-petition to modify the parent-child
relationship because "the relief requested . . . is not
in the best interest of the child." Pursuant to
B.M.'s request, the trial court entered findings of fact
and conclusions of law. Among its other findings, the trial
court stated that "there had been a material and
substantial change in the circumstances of [B.M.]." The
trial court also stated that "it was in the best
interest of [S.G.M.] to continue to reside with . . . [J.M.]
as the parent with the exclusive right to determine
[S.G.M.'s] primary residence."
review the findings of a trial court in a conservatorship
case 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). However,
challenges to the sufficiency of the evidence are not
independent grounds of error in custody cases but, instead,
are relevant factors used to determine whether the trial
court abused its discretion. In re M.C.M., No.
11-13-00375-CV, 2014 WL 3698283, at *4 (Tex. App.-Eastland
July 17, 2014, no pet.) (mem. op.). When we review the
evidence for legal sufficiency, we view the evidence in the
light most favorable to the finding, crediting favorable
evidence if a reasonable factfinder could, and disregarding
contrary evidence unless a reasonable factfinder could not.
City of Keller v. Wilson, 168 S.W.3d 802, 822, 827
(Tex. 2005). In a factual sufficiency review, we must examine
the entire record and set aside a 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 factfinder 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. In conducting our
review, we may not substitute our judgment for that of the
factfinder even if we would reach a different answer on the
same evidence. Maritime Overseas Corp. v. Ellis, 971
S.W.2d 402, 407 (Tex. 1998).
review a trial court's order on a motion to modify
conservatorship for abuse of discretion. Gillespie v.
Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Nichol
v. Nichol, No. 07-12-00035-CV, 2014 WL 199652, at *2
(Tex. App.- Amarillo Jan. 15, 2014, no pet.) (mem. op.). When
we review a trial court's decision for abuse of
discretion, we determine whether the trial court acted
without reference to any guiding rules or principles or,
alternatively, whether the trial court's actions were
arbitrary and unreasonable based on the circumstances of the
case. Quixtar Inc. v. Signature Mgmt. Team, LLC, 315
S.W.3d 28, 31 (Tex. 2010) (citing Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985)).
The fact that a trial court may decide a matter within its
discretion in a different manner than an appellate court in a
similar circumstance does not demonstrate an abuse of
discretion. Downer, 701 S.W.2d at 242.
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 the rendition of the prior order. Tex. Fam.
Code Ann. § 156.101(a)(1)(A) (West 2014). The findings
of a trial court on modification of conservatorship shall be
based on a preponderance of the evidence. Id. §
best interest of the child is the primary consideration in
determining issues that concern conservatorship and
possession of or access to a child. Id. §
153.002. A court may use a number of factors to determine
best interest. Holley v. Adams, 544 S.W.2d 367,
371-72 (Tex. 1976). Those factors, which are not exhaustive,
include: (1) the desires of the child; (2) the emotional and
physical needs of the child now and in the future; (3) the
emotional and physical danger to the child now and in the
future; (4) the parental abilities of the individual who
seeks custody; (5) the programs available to assist the
individual to promote the best interest of the child; (6) the
plans for the child by the individual who seeks custody; (7)
the stability of the home or proposed placement; (8) the acts
or omissions of the parent that may indicate that the
existing parent-child relationship is not a proper one; and
(9) any excuse for the acts or omissions of the parent.
Id. In the context of a custody modification, other
factors to consider include the child's need for
stability and the need to prevent constant litigation in
child custody cases. In re V.L.K., 24 S.W.3d 338,
343 (Tex. 2000).
appeal, B.M. argues that the trial court erred when it found
that it was in S.G.M.'s best interest to continue to
reside with J.M. and to allow J.M. to exclusively determine
S.G.M.'s primary residence. At trial, B.M. called a
number of witnesses to support her contention that it was no
longer in S.G.M.'s best interest to reside with J.M.
Kayla Edwards, a friend of B.M., testified about S.G.M.'s
appearance and demeanor. Edwards stated that, when she sees
S.G.M. on Fridays at the beginning of B.M.'s possession
period, S.G.M. is "reserved, " "timid, "
and "disheveled." She also testified that
"[a]lmost every time that I have seen her on Fridays, it
looks like her hair has not been washed in several
days." She also testified that, on Saturdays, S.G.M. is
"always well-dressed" and "very happy."
B.M.'s stepson, Christopher, testified that he once saw
lice in S.G.M.'s hair and that he observed B.M. put lice
medication on S.G.M. and pull lice from S.G.M.'s head.
also testified at trial. She stated that S.G.M. had had lice
and that she had treated S.G.M.'s hair with lice
medication. B.M. stated that J.M.'s mother put baby
powder on S.G.M.'s head for lice treatment. B.M. also
testified that S.G.M. "has no dental hygiene, "
that S.G.M.'s weight is "becoming an issue, "
and that S.G.M.'s grades "are going down." She
also stated that S.G.M. "loves" her stepfather and
stepbrother. B.M. testified that J.M. "is an absent
father" and that she believes J.M. molested S.G.M. B.M.
conceded that, if she were granted the right to determine
S.G.M.'s primary residence, the school S.G.M. attends
would be different. B.M. also testified that she is
undergoing "in vitro fertilization." She also
admitted on cross-examination that J.M. "has taken a
more active role in [S.G.M.'s] life." Finally, B.M.
testified that, after her divorce from J.M., B.M. moved more
than 100 miles from Haskell-where J.M. lives with S.G.M.-to
also testified at trial. J.M. stated that he never saw lice
on S.G.M. J.M. did testify, however, that he had taken S.G.M.
to a physician assistant, who diagnosed S.G.M. with an
allergy to the sun and told J.M. to use a generic powder for
treatment. J.M. admitted that S.G.M. is
"struggling" in school, but he said that he has
gone to S.G.M.'s school to discuss that matter with the
principal of the school. J.M. also stated that, to help with
her reading, S.G.M. will "redo papers" and stay
after school for tutoring. He believes that S.G.M. is
"improving." J.M. testified that he cleans
S.G.M.'s head and washes her hair. J.M. conceded that
S.G.M. is "chubby, " but he testified that he has
not allowed her to drink Cokes and has encouraged her to eat
more vegetables and change her eating habits. J.M. also
stated that S.G.M. has a "lazy eye, " for which she
sees a doctor. He acknowledged that he once changed one of
S.G.M.'s eye doctor appointments but explained that he
did so because it conflicted with her STAAR testing at
testified that he believes B.M. is a bad mother. He testified
that B.M. is "selfish" and that she "puts
herself first, definitely not [S.G.M.]." He also
testified that S.G.M. "cries herself to sleep, telling
[J.M.] that she does not want to live with her mom."
Overall, J.M. testified that S.G.M. plays on a local softball
team, participates in the county stock show through 4-H, and
attends church two nights during the week. He stated that,
"under the circumstances, [he] think[s] ...