Appeal from the 257th District Court Harris County, Texas
Trial Court Case No. 2009-62679
consists of Justices Keyes, Goodman, and Countiss.
V. Keyes Justice
suit affecting the parent-child relationship (SAPCR), Woodrow
Alexander Nellis appeals the trial court's order
dismissing his petition to modify conservatorship, possession
and access, and child support. In four issues, Nellis
contends that the trial court erred in dismissing his
petition based on its conclusion that there had been no
material or substantial change in the circumstances of a
party to the suit without affording him the opportunity for
an evidentiary hearing.
reverse the trial court's order dismissing Nellis's
modification petition and remand the case to the trial court
for further proceedings.
underlying suit, Nellis seeks to change the terms of
conservatorship, possession and access, and child support for
his eleven-year-old son, T.N. Although Nellis's petition
includes a request to decrease his child support obligation,
the focus of his briefing in both the trial court and on
appeal has been on his request to be permitted to spend more
time with T.N. than he is afforded under the trial
court's order issued six months prior to his modification
petition. This order removed Nellis as managing conservator
and appointed him possessory conservator, appointed Melissa
and Blair Haynie, Nellis's mother and her husband, as
nonparent managing conservators, and limited Nellis's
time with T.N. to one supervised four-hour visit each month.
to Nellis's brief and corroborated by the appellate
record,  T.N. was born in 2008 to Nellis and Monica
Ramirez. Nellis and Ramirez "lived problematic and
unstable lives," and Nellis used "illicit
it is unclear whether Nellis and Ramirez were ever married,
the record contains a SAPCR order rendered February 10, 2010,
naming Nellis and Ramirez joint managing conservators of
T.N., and giving Ramirez the exclusive right to designate
T.N.'s primary residence within Harris County. The order
also granted Nellis possession of T.N. every first, third,
and fifth weekend, as well as Thursday evenings and certain
holidays, and ordered him to pay Ramirez $200 in monthly
January 1, 2015, Ramirez passed away and T.N. began living
with Nellis and the Haynies. Six months later, on June 16,
2015, the Haynies filed a petition to modify the trial
court's 2010 order based on Ramirez's death and on
allegations that Nellis engaged in activities and behaviors
that significantly impaired T.N.'s safety and well-being
and had a pattern of committing family violence. The Haynies
asked to be named temporary joint managing conservators with
the right to designate T.N.'s primary residence, and they
asked that Nellis be denied access to T.N., or, in the
alternative, that his time with T.N. be supervised. The trial
court did not take immediate action on the Haynies'
petition to modify.
February 15, 2016, after receiving a report alleging that
when T.N. did not eat all of his meals Nellis disciplined him
by making him take a cold shower and that Nellis was
"verbally abusive" and "yell[ed]/raise[d]
[his] voice and ma[de] belittling comments" about T.N.,
the Department of Family and Protective Services (the
Department) petitioned the trial court for an order for
protection of T.N. Subsequent filings reflect that the
Department had also received reports that Nellis would
"not wak[e] up in the mornings" to assist in
getting T.N. to school, and, as a result, T.N. "has
frequently missed school," and that Nellis admitted to
using synthetic marijuana and to drinking alcohol. The trial
court granted the petition and named the Department temporary
sole managing conservator of T.N.
weeks later, after a full adversary hearing, the trial court
entered temporary orders appointing the Department temporary
managing conservator and requiring Nellis to comply with the
Department's Family Service Plan for T.N. 's return.
It also ordered that Nellis's visitation with T.N. take
place at CPS offices and that T.N. be placed with Melissa
month later, the Haynies filed a motion to modify the
temporary orders. In response, the trial court issued
additional temporary orders appointing the Haynies temporary
joint managing conservators of T.N. with the Department.
months later, in October 2016, the Department nonsuited its
case against Nellis, stating that it "does not desire
[or] contemplate a need for it to remain or be appointed as
Managing Conservator of [T.N.] and does not desire to pursue
this cause of action."
record reflects that on January 18, 2018, the trial court
commenced a nonjury trial, presumably on the modification
petition the Haynies had filed two and a half years earlier.
On January 19, 2018, the trial court rendered a modification
order that removed Nellis as T.N.'s managing conservator,
appointed the Haynies as nonparent managing conservators with
the right to designate T.N.'s primary residence within
Harris County, appointed Nellis possessory conservator, and
limited Nellis's periods of possession and ...