AlTirnied and Opinion Filed February 2, 2013.

In The 

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## Jexa at IaUw3 No. 05-1 1 -00377-CV

In the Interest of L.C.L., A Minor Child

On Appeal from the 254th Judicial District Court Dallas CoLink. Texas Trial Court Cause No. I)F—99—08123—R 

### OPINION Belore Justices Moseley, Francis. and Lang Opinion by Justice Lang Mi., the mother of L.CL, appeals the trial court’s order in a suit to modify the parent— child relationship. The trial court found there was a history or pattern offamily violence by ML. toward L.C.L, appointed P.L., the fhther ofL.C.L, as the sole managing conservator ofthe child, and ordered that M.L.’s possession and access to L.C.L. be restricted to supervised possession by
a professional supervisor. M.L. raises tve issues on appeal, arguing: (I) the trial court erred when it indicated that it
was basing its ruling on evidence offered at prior hearings that was not offered or admitted into evidence during the trial on the suit to modify the parent-child relationship; (2) there was no evidence to support the trial court’s finding of a history or pattern offamily violence: (3) there
was insufficient evidence to support the trial court’s finding of a history or pattern of familyviolence, (4) the evidence was legally and factually insulhcient to support the trial court’s appumtment of P.L. as the sole managing conservator of the child: and (5) the C\ idence was legally and hiclually insuflicient to support the trial courts order that ML. ‘s periods of possession and access be supervised by a professional supervisor. We conclude the trial court did not err because Mi. has not shown the trial Court considered the testimony and evidence presented at prior hearings Also, we conclude the trial court did not abuse its discretion when it found a pattern and history of family violence. appointed Rh. as the sole managing conservator, and ordered that M.L’s periods ofpossession and access be supervised by a professional supervisor. The trial court’s order in this suit to modify the parent-child relationship is affirmed. 1. PROCEDURAL BACKGROUND In 1999. P. L. and M.L. divorced. Pursuant to the terms ofthe divorce decree, they were appointed joint managing conservators of L.CL. in 2009. P.L. tiled a motion to modify the parent—child relationship seeking to modify the divorce decree and appointment as sole managing conservator of L.C.L. Before trial, P.L. filed an emergency motion seeking, in part, to suspend M.L’s visitation with L.C.L. After a hearing, the associatejudge suspended M.L.’s visitation. ML. filed a counterpetition to modify the parent-child relationship requesting that she be named the parent with the exclusive right to determine the primary residence of L.C.L. and that the parties return to their equal periods ofpossession. After a trial on the petition and counterpetition to modify the parent-child relationship. the trial court found that a history or pattern of family violence by M.L. toward L.C.L. existed during the two-year period preceding the filing or during the pendency ofthe suit. Also, the trial court appointed P.L. the sole managing conservator of L.C.L., named M.L. the possessory

### conservator ofLC.L, and 

### ordered that M.L’s possession and access to L.C.L be restricted to supervisedpossessionby aprofessional supervisor. IL DETERMINATION BASEDON EVIDENCEOFFERED ATTRiAL In issue one, Mi. 

### argues the trial court erred when it allegedly indicated

### beforethe trial that it had made a determination ofwhat it 

### intended to rule 

### based on evidence presented at previous 

### hearings and prior to the 

### presentation ofevidence at final trial. She contends that testimony and evidence from the priorhearings in the 

### case was not offered or admitted during the trial on the suit to modify the parent-child relationship, but the trial court relied on that evidence when ruling. She concedes thatthe trial court tookjudicial notice “ofthe entire 

### file,” but maintains that included only the documents that appear in the clerk’s record, not prior testimonyand evidence. P.L responds thatML. failed to preservethis issue 

### forappealbecause she did not objectto the 

### trial court’s allegedjudicial notice ofthe testimony and evidence from prior hearings. Also, P.L. argues the trial court may takejudicial notice ofits file and make comments to manage its docketin anefficientmanner. Further, he argues nothingthetrial court didconstitutedan abuseofdiscretion. Therecordshowsthatduringopeningargumentatthetrialonthesuittomodifythe parent-childrelationship, thefollowingexchangebetweenM.L.’s trialcounsel andthetrial court occurred: COUNSEL: Your Honor, we’ll object—to trial by consent and we’ll object to any evidenceorargumentsthatgobeyondthe

### pleadingsbeforetheCourt Your Honor, this Court has made an observation at one point 

### that the Courtalreadyknowswhatitwantstodo inthis caseand COURT: Well, Counsel, may I remind you it’s not like I haven’t had close to a 

### dozenhearings onthis case already, whichhaveprobablybeen morethan anyothercaseI’vehadinthelasttwoyears. COUNSEL: Icanappreciatethat 3(ill 1< I; We’ve probably had close to a week trial time already in this case: a read. So it’s not like I don’t know these folks and it’s not like I haven’t seen them and their behaviors over the last two and a half’ years. COt NSki.: Well, Your Honor, I would just ask the Court COUR1’: You are the newbies. sir. absolutely; but I will keep an absolute open mind and I’m eager to hear from the witnesses that you ye all brought today. COUNSEL: Thank you, Your Honor. Also, during the testimony, P.L. requested that the trial court take judicial notice ofpetitioner’s motion for enforceinent. The trial court responded. “The Court takes notiee ofthe entire file.’’ ML. did not object. Further. at the beginning of Dr. Benjamin Aibritton’s testimony, when discussing the necessity to prove up his expertise. counsel for P.L. stated, “As Dr. Albritton has testified several times prior, although not in front of [M.L’s counsel], it’s my understanding that the [trial eourtI is going through the body of testimony. Do we need to prove—up the expertise of this witness again?’’ The trial court responded that “I think Dr. Albritton’s reputation and expertise precedes him ....ifnot in this entire courthouse.” M.L. relies on these exchanges between counsel and the trial court to support her claim that “[ajt no time did the [trial court] deny making the statement that he already knew what he wanted to do in the case.” However, the record shows that the trial court clarified its statement and made clear that it would “keep an absolute open mind” and was “eager to hear from the witnesses.” Further. we note that N’I[.L. argues in her briefand reply briefon appeal that “[i]fthe trial court took judicial notice ofany ofthe prior hearings

... it would have had to give notice to the parties.” (Emphasis added.)

4Mi. does not point us to, nor could we [md, an express statement by the trial court that it
was considering the evidence and testimony from prior hearings. This court decides issues based

on the record on appeal. &e generally, Stewart v. C.L Trammel! Prop.. Inc., No. 050401027 CV, 2005 WI. 2234637, at *2 (Tex. App—Dallas Sept. 15, 2005, no pet.) (mem. op.) (appellate court cannot consider documents or hearings cited in briefon appeal and attached as appendices, ifthey are not formally part ofthe record); Green v. Kaposta, 152 S.W.3d 839, 841 (Tex. App— Dallas 2005, no pet.). The record does not support M.L.’s contention, on which her legal argument is premised, that the trial court considered evidence or testimony from prior hearings. Issue one is decided against M.L. III. SUFFiCIENCY OF THE EVIDENCE In issues two through five, Mi. argues the evidence is insufficient to support the trial court’s finding ofa pattern and history offamily violence, appointing P.L. as the sole managing conservator, and order that M.L.’s periods of possession and access be supervised by a professional supervisor. A. StandardofReview An appellate court reviews a trial court’s order regarding child custody, control, possession, and visitation for an abuse ofdiscretion. In re H.N.T., 367 S.W.3d 901, 903 (Tex. App—Dallas 2012, no pet.); 

### Jacobs v. Dobrei, 991 S.W.2d 462, 463 (Tex. App—Dallas 1999,

no pet.). A trial court abuses its discretion when it acts arbitrarily and unreasonably without reference to guiding principles. In re H.N,T, 367 S.W.3d at 903; In re WC.B, 337 S.W.3d 510, 5 13 (Tex. App Dallas 2011, no pet.). In family law cases, the abuse ofdiscretion standard of review overlaps with traditional standards ofreview. In re H.N.T, 367 S.W.3d at 903; In re

“All opinions and memorandum opinions in civil eases issued after [January 1. 2003j have precedential value.” TEX. R. App. P. 47.2 cmt.. 47.7 emt.: see also R.,J Sua,s’e Enters., Inc. v. PNY.k1 L.P., 380 5.W.3d 238. 243 n,2 (fex. App.—1)allas 201 2. no pet.).WC.B, 337 S.W.3d at 513. As a result, legal and factual insufticiency are not independent grounds ofreversible error, hut instead are hictors relevant to an appellate court’s assessment of whether the trial court abused its discretion. In re HALT. 367 S.W3d at 903; In re WCB, 337 S.W 3d at 5 I 3 To determine whether the trial court abused its discretion, an appellate court considers whether the trial court had sufficient evidence on which to exercise its discretion and erred in its exercise ofthat discretion, In re [[ALT, 367 S.W.3d at 903; In re WCB, 337 S.W.3d at 513. As long as some evidence ofa substantive and probative character exists to support the trial court’s judgment, an appellate court will not substitute its judgment for that of the trial court. In re HALT. 367 SW 3d at 903. B. Finding ofFain

### i t v Violence In issues two and three, Mi. argues there is no evidence or insufficient evidence to support the trial court’s finding that a history or pattern of family violence by ML. toward L.C.L. existed during the twoyear period preceding the filing or during the pendency ofthe suit. She contends the events alleged do not meet the definition of family violence and there is no evidence that L.C.L. was injured. Rather, she argues these alleged events were disciplinary in nature. P.L. responds that almost every mental health professional involved corroborated L.C.L.’s reports of M.L.’s acts of physical aggression toward him and confirmed L.C.L.’s fearfulness ofML. 1. Applicable Law The Texas Family Code provides that “family violence” means “an act by a member ofa family or household against another member ofthe family or household that is intended to result in physical hann, bodily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear ofimminent physical harm, bodily injury, assault, or sexual assault, but does not include defensive measures to protect oneself” TEx. FAM. CoDE ANN. 71.004(1) (West
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### 2008); see also TEx. PAM. CODE ANN. 

## § 101.0125 (West 2008) (applying definition in section 71.004 to 

### suits affecting parent-child relationship). A single act of violence or abuse can constitute a “history” ofphysical 

### abuse for 

### purposes ofsection 153.004 ofthe Texas Family Code. In it

### IN, No. 05-08-01563-CV, 2009 WL 3353629, at 2 (Tex. App—Dallas Oct. 20, 2009, no pet.) (man. op.); Alexander v. Rogers, 247 S.W.3d 757, 762-63 (Tex. App—Dallas 2008, no pet.); see also Thx. FAM. CODE ANN. 

## § 153.004 (West 2008) (court may not 

### appoint joint

### managingconservators if

### evidence ofhistory ofphysical abuse). 2. Application oftheLawtotheFacts In P.L.’s first amended petition to 

### modify the parent-child relationship, 2 he alleged a history orpattern offamilyviolence by ML. toward L.C.L. 

### During the trial, in responseto the question “Has [M.L.] ever hurt [LC.L.]?” Dr. Benjamin 

### Aibritton answered “Yes.” Also, in response to the question “What did she do?” Dr. Albritton 

### stated that M.L had “[g]rabbed [LC.L.’s] lips and pulled them towards herselffor disciplinarypurpose[s] with her fingernails and also [he] believe[d] [M.L] grabbed [L.C.L’s] arms with her 

### fingernails at one 

### point as well.” 

### Further, Dr. Albritton’s report, which was admitted into evidence without objection, 

### stated that “[L.C.L] still had 

### fears ofphysical violence by [M.L]” In addition, Dr. Albritton stated that he believed L.C.L. would be in 

### danger ifhe was alone with M.L Dr. Jay 

### Crowder testifiedhereviewedareportfromDr. VanHoose, which 

### statedthatM.L 

### admittedto “slapping [LC.L.] once long ago.” Also, in 

### response to 

### the question “[i]s 

### there any indication that [M.L.]’s beenphysical with [LC.L]?” Dr. 

### Crowderstatedthat she 

### “pulled [LC.L.] bythe lips, 

### scratched [him] 

### on the baclc [and] directed [him] by the 

### chin aggressively.” A single act of 

### violence or

### abuse canconstitute a “history” ofphysical abuse. SeeIn it

### J.N,No. 05-08-01563-

2 metrialcourtanckP.L.’ssecondamendedpetition.

7CV, 2009 WI 3352). at 2: :1iexainlt’r. 247 SW at 76263 Accordinlv, we conclude the trial court did not abuse its discretion when it tdund a pattern or history ol family violence 1w M.I

. toward [I (.1 because some evidence of a substantive and probative character exists to suppoi-L the trial court’s 

### judument. Issues two and three are decided against M L. C. Sole Mana,ç’inç’ Conservator In issue four, M.L. argues the evidence was legally and factually insufficient to support the trial court’s appointment ofP.L. as the sole managing conservator ofthe child. She claims there was no evidence that a material and substantial change in circumstances had occurred which is necessary to modify the prior order [or conservatorship and there is a statutory presumption that the parents shall be appointed Joint managing conservators ofthe child. Ph. responds that M. L. judicially admitted the existence of a material and substantial change in circumstances and there was ample evidence to support the trial court’s appointment ofP.L. as the sole managing conservator. 1. Applicable Law Under section 156.101 of the Texas Family Code, a trial court may modify conservatorship ofa child ifthe modification is in the childs best interest, and the circumstances of the child, a conservator, or other party affected by the existing conservatorship order have materially and substantially changed since the rendition ofthe existing order. TEx. FAM. CODE
ANN. 

### § 156.lOl(1)(A) (West Supp. 2012) Iii cc A.B.P., 291 S.W.3d 91, 95 (Tex. App—Dallas 2009, no pet.). To demonstrate that a material and substantial change of circumstances has occulTed. the evidence must show what conditions existed at the time of’ the entry ofthe prior order as compared to the circumstances existing at the time of the hearing on the motion to modify. See in ic WC.B., 337 S.W.3d at 5 l4 in cc A.B.P., 291 S.W.3d at 95; In re CC.]., 244
8S.W.3d 911. 919 (Tex, App— 1)allas 2008, no pet.). One party’s allegation of changed circumstances of the parties constitutes a judicial admission ofthe common element of changed circumstances ofthe parties in the otherparty’s similarpleading. See Delaney v Sc/ieee, No. 03- 02-00273-CV, 2003 WL 247110, at 5 (Tex. App.—Austin Feb. 3, 2003, no pet.) (mem. op.). Admissions in trial pleadings are regarded as judicial admissions in the case that pleading was filed, require no proof of the admitted fact, and authorize the introduction ofno evidence to the contrary. Thompson v Thompson, 827 S.W.2d 563, 566 (Tex. App.—Corpus Christi 1992, writ denied),Section l53l31( 

### ) ofthe Texas Family Code provides that the appointment ofa parent
as ajoint managing conservator is presumed to be in the best interest ofa child unless the trial court finds that there is a history offamily violence. Tr:x. F\M. CoDE ANN. 

### § 153.131(b) (West 2008). Further, the trial court is actually prohibited from naming a party as ajoint managing conservator if “credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against

... a child.” TEx. FAM. CODE ANN. 

### § 153.004(b) (West 2008). 2. 

### Application ofthe Law to the Facts 

### First, we address M.L.’s claim there was no evidence that a material and substantial change in circumstances had occurred. In P.L.’s first amended petition to modify the parentchild relationship, he generally alleged The circumstances ofthe child, a conservator, or otherparty affected by the order to be 

### modified have materially and substantially changed since the date of rendition ofthe order to be modified. [P.L.j strongly desires a stable, health[yJ parent-child relationship that ensures the child’s emotional and physical safety. Similarly, in M.L.’s 

### counterpetition to modify the parent-child relationship, she generally alleged that the “circumstances ofthe child, a conservator, or other party affected by the order to be

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### modified have materially and substantially changed since the date ofrendition ofthe orderto be modified.” 

### Ilowever. P.1. and 

### M.L. sought different relief in their petitions to modify the 

### parent-child relationship. Nevertheless, P.1’s and M.L’s modification claims contained a common essential element, i.e., eachrequired 

### proofofthechanged 

### circumstances ofthe child, a conservator, or other party affected by the order to be 

### modified. M.L’s allegation of

### changed circumstances constitutes ajudicial admission ofthat same essential element in P.L.’s claim for modification ofthe parent-child relationship even though M.L did not request the same relief: SeeDelanc’v. 2003 

### WI247110. at *5 

### Second. we 

### address M.I.’s claim 

### that there is a statutory presumption that the parents shall be appointedjoint 

### managing conservators ofthe child. The record shows the trial court foundthat

### there was ahistoryoffamily

### violence andwehave affirmedthatfinding. As aresult, thetrial

### courtwas prohibitedfromnamingM.L. as ajoint

### managing conservator. SeeTEX. PAM. 

### CODEANN. § 153.004(b). Weconcludethetrial courtdid not abuse its discretionwhen it appointed P.1. as the sole managingconservatorofthe child. Issuefouris decidedagainstM.L. D. SupervisedPossession 

### andAccesstothe Child 

### In 

### issue five, M.L. 

### argues the 

### evidence was legally and factually insufficient to support the trial court’s order that M.L.’s 

### periods of possession and access be supervised by a professional supervisor. She claims the trial court did not order the 

### least restrictive means of possession and access possible to 

### a parent, and its restrictions exceed those 

### required to 

### protect the

### best interests ofthe child. Further, she argues the letterby Dr. Albritton, which was sentto thetrial court, isvague as to the

### actual events referenced. P.L. 

### responds thatthecourt-appointed expertsrecommendedrestricting M.L.’s 

### access to L.C.L. supplies sufficient 

### evidence to support thetrialcourt’s order. 10

### I. Applicable Law 

### The trial court is required to bbco,Isjder

### the commission

### offamily violence in 

### determining whether to deny, restrict, or limit the possession ofa child by a parent who is 

### appointed as a possessory conservator.” Tux. FAM. Corni ANN. § 153.004(c). A trial court “may not allow” a parentto have access to a child when it is shownthat there is ahistory offamilyviolence, unless the trial court (I) finds that awarding the parent access to the child would not endanger the child’s physical health orcmotional welfare andwouldbeinthe best interest of

### thechild and (2) renders a possession 

### order that is designed to protect the safety and well-being ofthe child and any otherperson who has 

### been avictim offamily violence committedbythe parent. Tix. FAM. CODE ANN. 

### * 353.004(d). That order may require that the periods ofaccess be continuously supervised by 

### an entity or person chosen by the court. TEX. FAM. CODE ANN. 

## § 153.004(dX2)(A). Itis a“rebuttablepresumptionthatitis notinthebestinterestofachildfora parentto haveunsupervisedvisitation withthechild ifcredibleevidence is presentedofahistory
orpattern of[physical abusc] bythatparent directed againstthe otherparent.” Ux. FAM. CODE 

### ANN. 

## * 153.004(e). 2. ApplicatIon oftheLawtothePacts The trial court ordered that all periods ofM.L.’s possession ofL.C.L., except holidays and the child’s birthday, shall be supervised at Hannah’s House Supervised Visitation and Exchange Center or Faith and Liberty’s Place Family Center. However, during Christmas, Thanksgiving. New Year’s Day, LC.L.’sbirthday, andMother’s Day, thetrial courtorderedthe supervised possession ofLC.L. could be with Hannah’s House, Faith and Liberty’s Place, or M.L.’smother. The trial court found a history or pattern offamily violence by M.L. toward LC.L. Supervised visitation at a visitation center is one ofthe trial court’s options granted by the 11legislature under those circumstances, See TEX, LAM. CODE ANN, 

### § I53.004( )(2)(A). Also, Dr. Albritton testified that he believed ML ‘s access to LC,L. should he supervised and was “paramount 

### [] for [LC.L. ‘sj safety and welI-being.” Further. he stated that visitation supervised by M.L.’s mother was not going well as M.L had conflicts with her mother. Accordingly, we conclude the trial court did not abuse its discretion when it ordered that Mi’s periods of possession and access be supervised by a professional supervisor. Issue five is decided against ML. IV. CONCLUSION The trial court did not errbecause it based its rulin on the evidence presented at the trial of the suit to modify the parent—child relationship. Also, the trial court did not abuse its discretion when it found a pattern and history of family violence, appointed P.L as the sole managing conservator, and ordered that M.L.’s periods ofpossession and access be supervised by a professional supervisor. The trial court’s order in a suit to modify the parent-child relationship is affirmed.

I lO377F.P05 S. LANG

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## FiftIi Oiitrirt nf cxas at DaI1a JUDGMENT IN THE INTEREST OF CHILD No. O51 1OO377CV L.C.L,, A MINOR

V. On Appeal from the 254th Judicial District Court. Dallas County, Texas Trial Court Cause No. DF99-O8l23R, Opinion delivered by Justice Lang. Justices Moseley and Francis participating.

In accordance with this Courts opinion of this (late. the trial court s order in a suit to inodiiv the parent—child relationship is AFFIRMEI). It is ORDIRED that Paul Lewis recover his costs of this appeal trom Man Sue Lewis. Judgment entered this 2th day of February, 21)13.

JUSTIC