## COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02
- 12
- 00340
- CV

IN THE INTEREST OF A .G.C., A CHILD

------------ FROM THE 322ND DISTRICT COURT OF TARRANT COUNTY

---------- 

### MEMORANDUM OPINION 1

---------- This is an appeal of a fi nal order entered in a suit affecting the parent

- child relationship. The principals are Appellant Father, Appellee Mother, and their daughter A.G.C. , who was five years old at the time of trial

. 2

1 See Tex. R. App. P. 47.4.

2 We use aliases to protect the identities of the individuals involved in this case. See Tex. Fam. Code Ann. § 109.002(d) (West Supp. 2013 ).2 Appellant states th e issue on appeal as follows: “ Did the D istrict Court act in an arbitrary or unreasonable manner or without reference to any guiding principles in determining the best interests of the child?”
PROCEDURAL BACKGROUND Appellant and Appellee were divorced in January 2009. The Final Decree provided t hat both parties were named as joint managing c onservators with Appellee given the exclusive right to designate the primary residence of A.G.C. Appellant was given a standard possession o rder under the Texas Family Code and was ordered to pay child suppo rt to Appellee and to provide health insurance
for A.G.C.
In December 2010, Appellant filed a petition to modify the parent

- c hild

r elationship , asking the trial court to name him as the conservator with the
exclusive right to designate the primary residenc e of A.G.C. because Appellee
had voluntarily relinquished custody to him in August 2010. At the t emporary orders hearing in February 2011 , the trial c ourt granted this relief and ordered Appellee to pay child support while Appellant continued to provide m edical
benefits to A.G.C

. The temporary o rde rs remained in place until the final h earing

on July 6 , 2012. After the final hearing, t he trial c ourt ordered that both parti es be joint managing c onservators with the same liberal visitation that had exist ed w hen the divorce was granted, with Appellee being the conservator who could determine
where the child resided. The trial court also ordered Appellant to pay child3 support and to be given credit for the support Appellee had not paid. It is the
results of t his he aring of which Appellant complains. The only record presen ted in this appeal is from the final h earing.
THE EVIDENCE BEFORE THE TRIAL COURT
At the final hearing , Appellant testified that in August 2010 , Appellee’s mother brought A.G.C. and her cloth es to him ; told him A.G.C. had been left with
her ; and said she did not know where Appellee was

. Appellant speculated that Appelle e had been with her boyfriend C.D. and said that Appellee h ad a problem with abusing the pain medication hydrocodone. Appell ee had visited with A.G.C.
after Appellant obtained custody; however , she had not paid all of her child support. Appellant had not attempted to enforce payment because he did not want the mother of his child to go to jail. 3 Appellant was twenty

- seven year s old and an employee of Alpine Power Systems , which serviced backup generators at hospitals and other places that
had them. Appellant’s employer would allow him to get off work to pick up
A.G.C. if he had to. Appellant testified he was presently renting a house in Saginaw where he and A.G.C. had separate bedrooms , and he introduced pictures of the house. He had several residences prior to moving to Saginaw,
one of which had burned down.

3 The trial court observed that the temporary custody order had not been reduced to writing.4 A.G.C. was in day care at Valerie's Kid K are. Appellant dropped he r there
in the morning, and the day care took her to her school, picked her up after school, and kept her until he or his mother could retrieve her. A.G.C. had been in kindergarten and would be going in to the first grade. She had done well in
school and had friends at school, at the day care , and in the neighborhood where they lived. A.G.C. had been absent from school nine times because of illness. Appellee lived about nine miles away in Watauga , and A.G.C. would have

to change schools if custody was cha nged. Appellant said he was also seeking
child support from Appellee and a shared payment for medical expenses.
In cross examination, Appellant admitted he and A.G.C. had lived in four
different residences while she was in his custody. The school A.G.C. attended

was not located in the district in which Appellant lived

— it was in the district in which Appellant’s mother lived. Appellant had given his mother's address so
A.G.C. could att e nd the school near his mother. Even though A.G.C. had been
in his car e for five months, Appellant did not file for custody until he received notice of review by the child support office. Appellant admitted that the concerns he had when Appellee had A.G.C. in
her care were not related to her prescription drug use

. He recogn ized Appellee had chronic health problems, and he had brought A.G.C. to the hospital to visit
with her. Appellee wa s called as an adverse witness. She testified she was twenty

eight years old. She and Appellant had divorced in February 2010. At the time5 of the divorce , she and A.G.C. were living with Appellee’s mother in Haslet.
When asked what health issues she had, Appellee said, “ Autoimmune disorder, arthritis, fibromyalgia [ , ] interstitial cystitis, endometriosis. So lots of bone issues
and just blo od issues which causes my immune sy stem to where I get sick a lot.” Appellee further testified t hat her mom was there to help her in caring for
A.G.C. She admitted that she continued to use hydrocodone, but she said that
she only took two tablets a day, i f needed, as prescribed by her doctor, who also gave her sam ples of other drugs she needed but could not afford. She was also taking seventy

- five milligrams of Lyrica t wice a day for her fibromyalgia and Soma, a muscle relaxer , as needed

. Her doctor had not suggested any restrictions on her driving, caring for A.G.C. , or working while taking the
medication. Appellee was presently employed selling high

- end appliances part

- time, fifteen to twenty hours a week at Pacific Kitchen and Home , which was in Best
B uy

. Prior to that, she had worked at Home Depot for four and a half years. She had changed jobs because when she worked at Home Depot, she had to do a lot of heavy lifting , which was bad for her health. She admitted being behind in paying child support as ordered in the previous temporary hearing. Appellee had asked Appellant in August or September 2010 to take care of
A.G.C. for her because of her health problems and because she was in an d out of the hospital. During this time , she stayed at different times with her mom, a gir l friend, and her boyfriend C.D

.6 Appellee told of having another daughter, L., who was seven years old , by a third party, R.D

. , who was not paying child support. Appellee was trying to
obtain child support through the Attorney Gene ral’ s office. She said R.D. had no part in L.’s life and did not visit with her. She carried health insurance on L. through CHIP s

. Appellee and L. have lived in Wat a uga with C.D. since the first of 2011. C.D. is an electrician who is twenty

- eight years old. He had been arrested one
time when he was eighteen years old for paraphernalia. Appellee said Appellant had known L. since she was a baby. When Appellee had primary custody, Appellant would include L

. in his visitations with
A.G.C. However, since A ppellant gained primary custody of A.G.C. , he has had
little to do with L

. When L. would attend school, she would be going to the school where Appellee and C.D. lived. If Appellee had primary custody of A.G.C. , she also
would attend school there. L. woul d be in the second grade and A.G.C. in the
first. During the time that Appellant had primary custody, visitations had not
been strictly followed; sometimes A.G.C. would be with Appellee for up to a
month at a time. Appellee was concerned about the environm ent in which Appellant lived
and said that sometimes there was a party atmosphe re there with a lot of drinking. Appellee was also concerned that A.G.C. was not properly supervised7 in Appellant’s care. She said Appellant also took h ydrocodone

. She told o f one instance in which Appellant had left an op en bottle of hydrocodone in a place to
which A.G.C. had access. Appellee said sometimes Appellant did not properly hygienically care for A.G.C. and that she was sometimes dirty when Appellee picked her up.
A ppellee said A.G.C. would be better cared for with Appellee having primary custody. She and L. had been living with C.D

. for almost two years.
A.G.C. wanted to live with Appellee and A.G.C

. ’s sister in the same home. Her
situation that existed when Appe llant had temporary c ustody was no longer a problem, and at the present time , Appellee said she was fairly healthy. Appellee pointed out that if she had primary custody, A.G.C. would not have to go to day care. B ecause Appellee worked part time, she could take
A.G.C. to school and pick her up. Appellee intended to keep working part time
so she could care for her children.
When the trial court inquired whether she and C.D. planned to get married, Appellee said they were discussing it. Appellee also said s he has had
rheumatoid arthritis since she was fourteen years old and was working with her doctor to get off the hydrocodone. He had prescribed patches for her pain.
APPLICABLE LAW AND STANDARD OF REVIEW We review the trial court’s modification of managing conservatorship for an
abuse of discretion. In re T.D.C. , 91 S.W.3d 865, 872 (Tex. App.

— Fort Worth 2002, pet. denied) (op. on reh’g); see In re A.B.H. , 266 S.W.3d 596, 601 (Tex.8 App.

— Fort Worth 2008, no pet.) (op. on reh’g) (applying standard). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without reference to guiding principles. Iliff v. Iliff , 339 S.W.3d 74, 78 (Tex. 2011); Low v. Henry , 221 S.W.3d 609, 614 (Tex. 2007). A trial court also abuses its discretion when it does not analyze or apply the law properly. Iliff , 339 S.W.3d at 78. Legal and factual sufficiency are not independent grounds of error in modification cases, but they are relevant factors in deciding whether the trial court abused its discretion.
T.D. C. , 91 S.W.3d at 872. The family code authorizes a trial court to modify an order that appoints a
child’s conservator s, sets the terms and conditions of conservatorship, and provides for the possession of a chil d if modification would be in the best intere st
of the child and (1) the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed since the earlier of: (A) the date of the rendition of the order; or (B) the date of the signing of a me diated or collaborative law settlement agreement on which the order is based; (2) the child is at least 12 years of age and has expressed to the court in chambers as provided by Section 153.009 the name of the person who is the child’s preference to have t he exclusive right to designate the primary residence of the child; or (3) the conservator who has the exclusive right to designate the primary residence of the child has voluntarily relinquished the primary care and possession of the child to another pers on for at least six months.9 Tex. Fam. Code Ann. § 156.101(a) (West Supp. 2013); see In re J.A.J. , 243 S.W.3d 611, 617 (Tex. 2007) (noting that trial court retains jurisdiction to modify conservatorship order if it is in the child’s best interest and the pa rent’s or child’s circumstances have materially and substantially changed since rendition). A court’s primary consideration in determining the issue of conservatorship and possession must always be the best interest of the child. Tex. Fam. Code Ann. § 153 .002 (West 2008); J.A.J. , 243 S.W.3d at 614. Courts may use a
nonexhaustive list of factors to determine the child’s best interest. Holley v.
Adams , 544 S.W.2d 367, 371

– 72 (Tex. 1976); T.D.C. , 91 S.W.3d at 873. Those
factors include (A) the desires of t he child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent

- child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.10 Holley , 544 S.W.2d at 371

– 72 (citations omitted). Other factors to consider in modification suits include the child’s stability a nd the need to prevent constant litigation in child custody cases. In re V.L.K. , 2 4 S.W.3d 338, 343 (Tex. 2000).
APPELLANT'S ARGUMENT Appellant argues the t rial c ourt abused its discretion by determining that it
was in A.G.C.’s best interests to be return ed to the primary care of Appellee after Appellant had been named the conservator with the exclusive right to designate the primary residence of A.G.C. because there had been no change in Appellee’s circumstance since Appellant was granted primary custody. Appellant claims
the evidence reflected Appellee was still using pain killers and still living with her boyfriend C.D. , while Appellant had established a stable home environment for
A.G.C. , who was healthy and had friends at day care, at school, and in the neighborhood where Appellant lived.
ANALYSIS
There were no find ings of fact requested or filed; therefore, we should imply all necessary findings of fact to support the trial court's order. See Sixth
RMA Partners , L.P. v. Sibley , 111 S.W.3d 46, 52 (Te x. 2003)

. If the t rial c ourt’ s implied findings are supported by the evidence, then we must uphold the judgment on any theory of law applicable to the case. Roberson v. Rob in son , 768 S. W.2d 280, 281 (Tex. 1989)

. We find that the record evidence supports the t rial c ourt’s determination to return A.G.C. to the primary care of Appellee

. The trial c ourt could have11 determined, based on the credibility and demeanor of the parties that this was in
the bes t interest of the child because (1) A.G.C. would not have to go to day care before and after school; (2) A.G.C. would be with her half

- sister L., both in school and at home, which A.G.C. wanted; (3) the circumstances that existed when Appellant obtained temporary custody were no longer viable because Appellee’s health problems were improved and would no longer h am per her caring for the child; (4 ) Appellee and C.D. , who had been together for almost two years and planned to get married , appeared to be in the best interest of A.G.C. ; and (5 ) Appellant’s motivation f or seeking temporary custody may have been, in part, because he was facing an increase in child support, and not necessarily the best
interest of the child. Accordingly, we overrule Appellant’s sole issue , and we affirm the trial court’s judgment.

PER CUR IAM PANEL: CHARLES R. HOLCOMB (Senior Judge, Retired, Sitting By Assignment); MCCOY and MEIER, JJ.
DELIVERED: January 2, 2014