### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00261- CV

Anish Jhaveri, Appellant

v. Ke lly McBeth, Appellee

F ROM TH E DISTRI CT COURT O F TRAVIS CO UNTY, 345 TH JUDICI AL DISTRICT NO. D-1 -AG-0 6-0 0088 3, H ONO RAB LE AMY CLARK MEACH UM, J UDGE P RESIDING

M E M O R A N D U M O P I N I O N

Anish J haver i appea ls from an o rder appointing Kelly McB eth sole manag ing

conser vator of H.E.J.S ., J haver i’s son and McB eth’s g randson. J haver i raises four issues on appea l. I n his first issue, J haver i contends that McB eth failed to “plea d and prove cer tain fac ts,” as require d to have standing under sections 153.432 and 1 5 3

. 4 3 3 of the Texas Family Code. See Tex. Fam. Code §§ 153.432, .433. I n his second issue, J haver i contends that McB eth did not have standing to obtain a modification of conser vatorsh i p u n der sections 102.003(a) (9) and 102.004 of the Texas Family Code. See id

. §§ 102.003(a) (9), .004. I n his third issue, J haver i contends that the trial court abused its discretion by modify ing the orig inal custody order beca use the evidenc e was leg ally and fac tually insuf

fi ci en t to support the trial court’s finding that “the g rounds for modification” wer e established. I n his fourth issue, J haver i contends that section 156.101 of the Texas Family Code is unconstitutional on it s fac e and a s applied. See id. § 156.101. We will affirm.BACK GR OUND H.E.J.S ., the biologica l child of J haver i and Quincy Smit h, wa s b o rn i n 2005. I n 2006, following the establishment of J haver i’s pater nity , J haver i and Smit h wer e appointed jo i nt manag ing conser

vators pursuant to an order establishi n g t h e pare nt-child rela tionship. The trial 1 court desig nated Smit h as the conser vator with the exclusive rig ht to desig nate the primary residenc e of H.E.J.S

. and awa

rded J haver i possessory rig hts under a modified standard possession and acc ess order

. For the first four y ear s of his life, H.E.J.S

. resided primarily with Smit h, both at the house of Smit h’s mother, McB eth, and in an apar tment McB eth rente d for Smit h. I n 2009, while H.E.J.S

. and Smit h wer e stay

ing w ith McBe th, Smi th abruptly moved out, leaving H.E.J.S . in McBe th’s car e. I n 2011, J haver i filed a petition to modify the orig inal custody order , reque sting that he be a ppointed sole manag ing c onserva tor. I n response , McB eth filed a petition in int erve ntion, 2 to which was attache d Smit h’s sworn consent, reque sting that McB eth be appointed sole manag ing

conser vator or a joint manag ing conser vator with the exclusive rig ht to desig nate H.E.J.S .’s primary residenc e. The trial court presided over a two-y ear investiga tion, appointing L isa Walker, Ph.D. as g uardia n ad litem. I n a repor

t to the court dated Marc h 3, 2013, Dr. Walker, despite acknow ledg ing

cer tain rese rvations about J haver i’s attitude and int ere sts, rec ommended that J haver i and M cB et h be appointed joint manag ing conserv at ors, with McB eth as the conser vator with the exclusive rig ht to desig nate H.E.J.S .’s primary residenc e. Howeve r, in a subsequent repor t dated Aug ust 20,

The orig inal order is found only in the appen dix of J haver i’s initial brief. Neither party 1 disputes the authenticity

or ac cura cy

of the orde r. Smit h responde d to the suit by filing a g ener al denial but was otherwise uninvolved in the 2 case and wa s not present a t the modification hea ring

. 2Walker chang ed her previous recommenda tion out of conce rn t hat J haver i’s ang er and ag g ressive

behavior sug g ested emotional instabilit y potentially harmful to H.E.J.S

. J haver i’s possessory rig hts

wer e temporar ily suspended and repla ced with supervised visitations. I n addition, Walker reta ined Susan McMillan, Ph.D. as the trea ting c hild therapist for H.E .J .S.

After holding a hear ing in Dec ember 2013, the trial court signe d an order appointing McB eth as H.E.J.S .’s sole manag ing conser vator and J haver i as a possessory conser vator. The trial court expressly found that McB eth had standing to bring the suit under section 102.003(a) (9) of the Texas Family Code. See id

. § 102.003(a) (9) (“A n orig inal s u i t m ay be filed at any time by

. . . a person who has had actua l c are , control, and possession of the child for at least six m onths ending not mor e than 90 day s prec eding the date of the filing of the petition.”). The trial court also found that there had been a materia l a nd substantial c hang e in c ircumstance s since the last order and that the reque sted modification of conser vatorship was in H.E.J.S .’s best interest. This appea l followed.

STANDARD OF REVIEW Standing is a component of subject-matter jurisdiction an d a const itutional prer equisite to bring ing a lawsuit. Jasek v. Texas Dep’ t of Family & Protective Servs. , 348 S.W .3d 523, 527 (Tex. App.—Austin 2011, no pet.). The Texas L eg islature has provided a compre hensive stat u t o ry framework for standing in the context of suits involving the pare nt-child rela tionship. In re J.C. , 399 S.W .3d 235, 238 (Tex. App.—San Antonio 2012, no pet.). When standing to bring

a particula

r ty pe of lawsuit has been confe rre d by statute, we use that statutory fra mework to analy ze whether the petition has been filed by a proper party
. Jasek , 348 S.W .3d at 528. The party seeking relief must alleg e and e stablish standing within the par ameter s of the statutory lang uag e. Id

. 3A trial court’s decision to modify a joint manag ing conser vatorsh ip is revie wed for a clea r abuse of discreti o n . W

o r f o r d v. Stamper , 801 S.W .2d 108, 109 (Tex. 1990); see also Blackwell v. Humble , 241 S.W .3d 7 0 7 , 715 (Tex. App.—Austin 2007, no pet.). The abuse of discretion standard overla ps with traditional sufficie ncy s t an d ards of revie w in family law case s,

cre ating a hy

brid analy sis. Zeifman v. Miche ls , 212 S.W .3d 582, 587-88 (Tex. App.—Austin 2006, pet. denied)

. The revie wing court there fore eng ag es in a two-prong ed inquiry to decide whether the trial court abused its discretion: (1) whether the trial court had sufficie nt information upon which to exercise its discretion; and (2) whether the trial court err ed in the application of its discretion. Echols v. Olivarez , 85 S.W .3d 475, 477-78 (Tex. App.—Austin 2002, no pet.). The focus of the first inquiry is the sufficie ncy of the evidenc e. Zeifman , 212 S.W .3d at 588. The revie wing court must then decide whether , based on the evidenc e befor e it, the trial court made a rea sonable decision. Id

. As a result, leg al and fac tual sufficie ncy are not independe nt g rounds of err or in modification case s; rathe r, they are rele vant fac tors in deciding whether the trial court abused its discretion. In re T.M.P. , 417 S.W .3d 557, 562 (Tex. App.—El Paso 2013, no pet.). When, as here , a trial court does not make finding s of fac t and conclusions of law, it is implied that the trial court made all finding s nece ssary to support its judgme nt. Sixth RMA Partners, L.P. v. Sibley , 111 S.W .3d 46, 52 (Tex. 2003). These implied findings may

be cha lleng ed for

leg al and f

actua l sufficienc y . To deter mine whether there is leg ally sufficie nt evidenc e, we consider the evidenc e in the light most favor able to the trial court’s finding s, cre diting favor able evidenc e if a rea sonable fac tfinder could and disreg arding co n t ra ry evidenc e unless rea sonable jurors could not. City of Keller v. W

ilson , 168 S.W .3d 8 0 2 , 8 0 7 (Tex. 2005). When revie wing the evidenc e for fac tual

s u fficiency , we consider and weig h all the evidenc e prese nted and will set aside the trial co u rt ’s 4finding s only if they are so contra ry to the overw helming weig ht of the evidenc e such that they are clea rly wr o n g and unjust. Id

. at 822. When the evidenc e conflicts, we must presume that the fac tfinder resolved any inconsistencies in favor of the order if a rea sonab l e p er s o n could do so. Id

. at 821. The trial court doe s n o t ab u s e i t s discretion if evidenc e of a subst antive and probative char acte r exis ts in support of its decision. Zeifman , 212 S.W .3d at 587. The trial court is in the best position to observe and assess the witnesses an d t h ei r d emea nor, and an appellate court must g ive “g rea t la titude” to the trial court in de termining the best interest of a child. In re A.L.E. , 279 S.W .3d 424, 427 (Tex. App.—Houston [14t h Dist.] 2009, no pet.). As a result, the mer e fa ct t h at an ap pellate court might decide the issue differ ently than the trial court does not establish an abuse of discretion. Zeifman , 212 S.W .3d at 587.

DISCUSSIO N

Stan ding I n his first two issues, J haver i contends that McB eth lacke d standing to obtain a modification under sections 153.432, 153.433, 102.003 (a )( 9 ), and 102.004 of the Texas Family Code. Under section 102.003(a) (9), “an orig inal suit [for modification of a conser vatorship] may 3 be filed at any time by

. . . a person, other than a foster pare nt, who has had actua l car e, control, and possession of t he child for at least si x months ending not more than 90 day s prec eding the date of the filing of the pe tition.” Tex . Fam. Code § 102.003(a) (9).

Be cause we conclude that McB eth had standing to intervene under section 102.003(a) (9), 3 we need not addre ss whether she also had standing under sections 102.004, 153.432 or 153.433. See Tex. R. App. P . 47.1. 5J haver i does not contend that McB eth did not have actua l car e, control, and

possession of H.E.J.S

. for the requisite time period. I nstead, J haver i claims th at in situations in which both a nonpare nt and a pare nt jointly car e for a child, “evide nce that the pare nt and the person both car ed for the child will not be sufficie nt to con fer standing .” I n support of his arg ument, 4 J haver i cites In re M.J.G

. , 248 S.W .3d 753 (Tex. App.—For t Worth 2008, no pet.). I n M.J.G

. , the children lived with their pare nts and materna l g randpa rents. Id

. at 756. When the children’ s pare nts initiated divorce proce eding s, the g randpa re n t s fi led a petition in intervention under section 102.003(a) (9). Id

. The co u rt h eld that the g randpa rents did not have standing beca use they had failed to establish actua l car e, control, and custody of the children. Id

. at 758. Both the pare nts and g randpa rents wer e re sponsible for the children’ s car e and there was no evidenc e that the pare nts had “a bdicated the ir pare ntal responsibilities and duties to the g randpa rents.” Id . at 759. The fac ts of M.J.G

. are distinguishable from those in the prese nt case . Her e, H.E.J.S

. lived primarily with McB eth and saw J haver i onl y under a limit ed visitation schedule

. J haver i did not signific antly contribute financ ially to H. E

. J

. S

. ’s car e and was heavily delinquent on child s u p p o rt. McB eth was almost solely responsible for H.E.J.S .’s day -to-day car e. As this Court has previously noted, “Nothing in section 102.003(a) (9) require s that car e, custody , control and p o s s essi on be exclusive.” See Jasek , 348 S.W .3d at 535 (citing Smith v. Hawkins , No. 01-09-00060- CV, 2010 WL 3 7 1 8 5 4 6 , at *3 (Tex. App.—Houston [1st Dist.] Sept. 23, 2010, pet. denied) (mem. op.))

.

J haver i also claims that McB eth’s “inequitable conduct” in a lleg edly forc ing Smit h from 4 her home and failing to inform J haver i of t he chang e estops her from asserting standing. J haver i, howeve r, has pr ovided no leg al authority for this position. 6J haver i also maintains that cer tain require ments must be met in order for there to be

a constitutionally compliant application of the standing provision in section 102.003(a) (9). See Troxel v. Granville , 530 U.S. 57 (2000) (holding that when fit pare nt’s dec i sion as to whether it would be bene ficial for

child to have r elationship with his or her g randpa rents bec omes subject to judicial revie w under g randpa renta l acc ess s tatute, court must accor d at l east some specia l weig ht to pare nt’s own deter

mination). J haver i contends that McB eth did not have standing under section 102.003(a) (9) beca

use: (1) the evidenc e is leg ally and fac tually insufficient to support a finding that J haver i consente d to McB eth’s car e, control, and possession of H.E.J.S .; (2) the evidenc e is leg ally and fac tually insufficient to suppo rt a finding that McB eth exercised “ac tual” possession beca use her possession of H.E.J.S

. was never intended to be per m an en t ; (3) there is conclusive evidenc e that any car e, control, or possession McB eth exercised was im p er m issibly in violation of a court order ; and (4) McB eth was mere ly acti n g as Smit h’s repr esenta tive and there fore could not exercise ac t u al ca re, control, or possession. Acc ording to J haver i, these circ umstances rende red the applica tion of section 102.003(a )(9) unconstitutional.

J haver i first arg ues that section 102.003(a) (9) must provide some form of protec tion of a pa rent’s f undamental r ight to make decisions conce rning the care, custody , and control of his

or her child. Quoting this Court’s opinion in Jasek , J haver i maintains, “Presumably , a person would only b e ab l e t o meet [t he require ments of section 102.003(a) (9)] with some ty pe of pare ntal or

conser vator consent, actua l o r co n s t ru ctive.” Jasek , 348 S.W .3d at 536. J haver i construes this Court’s lang uag e to require both pare nt s ’ ex p re s s consent or consent through conduct. Howeve r, such an interpre tation takes this Court’s lang uag e out of context. The full lang uag e used b y this

7Court indicates that the consent require ment is met by “some ty pe of pare ntal or conser

vator consent, actua l or constructive, such as where a parent leave s a child in the care of other people for more than six months .” Id

. (empha sis added)

. This Court continued, “Thus, unlike the statute in Troxel , section 102.003(a)(9) does not violate a pare nt’s rig ht to make decisions re gar d i ng their children; rathe r, it imposes potential leg al conse quence s for c erta in ty pes of pa renta l decisions.” Id

. We have found no case law that expressly construes section 102.003(a) (9) to include

a r e q u ir e me n t o f p a

r e n ta l c o n s e n t to a c q

u ir e s ta n d in g th r o u g h p o s s e s s io n . “ I

n th e a b s e n c e o f a

u th o r it y for a consent exception t o s t an ding throug h possession, we will not eng raf t one.” In re S.S.G. , 208 S.W .3d 1, 4 (Tex. App.—Amar illo 2006, p et
. d en ied). Of the case s cited by J haver i for the proposition that possession under s e c ti o n 1 0 2 .003(a) (9) require s express or constructive consent, not

one holds that consent is nece ssary for actua l possession. I n fac t, in one of the case s cited, this Court unambig uously stated, “[N]ot hing in the la n g u a g e o f s u b s e c ti o n 1 0 2

. 0 0 3 ( a ) ( 9 ) e xpressly require s that either par en t co n sent to a nonpare nt’s possession of a child befor e the nonpare nt may file a suit aff ecting a pare nt-child rela tionship.” In re E.N.C. , No. 03-07-00099- CV, 2009 WL 638188, at *4 (Tex. App.—Austin Mar. 13, 2009, no pet.) ( mem. op.).

J haver i next asser

ts that, in deter

mining what constitutes “ac tual” car e, control, and possession, “c o u rt s of appea l[ s] have interpre ted section 102.003(a) (9)’ s lang uag e to require perman en t ca re, control, and possession.” I t is true that some courts of appea ls have found a perma nency require ment in section 102.003(b)’ s mandate that in computing the time of possession

nece ssary for standing , the court “shall co n s i d er the child’s principal residenc e during the rele vant time prec eding the date of commence ment of the suit.” In re Kelso , 266 S.W .3d 586, 590

8(Tex. App.—For t Worth 2 008, orig

. proce eding ); see In re K.K.T

. , No. 07-11-00306- CV, 2012 WL 3553006, at *3 (Tex. App.—Amar illo Aug

. 17, 2012, no pet.) (mem. op.); In re F o untain , No. 01-11-00198- CV, 2011 W L 1755550, at *4 (Tex. App.—Houston [1st Dist.] May 2, 2011, orig

. proce eding ) (mem. op.). This Court, howeve r, has conclude d that section 102.00 3 (a) does not incorpora

te the perm an en cy re quirement J haver i advoca tes. See Jasek

, 348 S.W .3d at 535 (“[N]othi ng in section 102.003(a) require s that a pare nt or o ther conser vator have ‘voluntarily relinquished permane nt car e, contr ol, and possession.’”) (empha sis added).

Jh a v e r i a ls o c o n te n d s th a

t “ c o u r ts o f a p p e a l[ s ] h a

v e in te r p r e te d s e c ti o n 1 0 2

. 0 0 3 ( a ) ( 9 ) ’ s l an gu age to preve nt a party from establishing actua l car e, control, and possession when that car e, control, and possession is in violation of a court order.” Howeve r, t he trial court’s orig inal order , which is the one J haver i contends Smit h violated, is not part of the rec ord befor e either the trial court

or this Court. I t is well-e stablished that an appe llate cour t may not c onsider matters outside of the

rec ord. Carlis le v. Philip Morris, Inc. , 805 S.W .2d 498, 501 (Tex. App.—Austin 1991, writ denied) ;

see Hunt v. State ex rel. K.C. , No. 03-11-00352- CV, 2012 WL 3793283, at *3 (Tex. App.—Austin Aug

. 31, 2012, no pet.) (mem. op.); see also Tex. R. App. P. 38.1( g ) (re quiring that fac ts pe rtinent t o appellate issues “must be supported by rec ord ref ere nces” ). Wit hout the order , we are u n ab l e to make the threshold deter mination that McB eth’s p o s s es s i o n o f H.E.J.S

. did in fac t violate a court orde r. Finall y , J haver i arg ues that McB eth’s car e, control, and possession of H.E.J.S

. stems from the leg al authority g rante d to Smit h by the original order establishi ng the p ar en t-child rela tionship and, there fore , that McB eth cannot exercise actual car e, custody , and control , as she

9acts “solely as Smit h’s repr esenta tive.” This arg ument runs in direc t contra vention of our decision

in Jasek and the lang uag e of se ction 102.003(a) (9). I n Jasek , this Court held that to establish standing under section 102.003(a) (9) it was

nece ssary mere ly to show actua l control, meaning “the actua l power or authority to g uide or manag e . . . without reg ard to
. . . the leg al or constructive power or authority ” to do so. 348 S.W .3d at 537. I n doing so, we reje cted those case s construing section 102.003(a) (9) to require that a pare nt

or conser vator relinquish rig hts over a child or that the person seeking stan d i n g “have ultimate leg al authority ” to control a child. Id . at 535. We are unpersua ded by J haver i’s attempt to distinguis h Ja sek

. J haver i arg ues t hat the J aseks had standing beca use they had been g rante d leg al authority over the children by the Texas Depa rtment of Fa

mily and Protective Service s. I n Jasek , the Depa rtment filed suit ag ainst the natura l pare nts of two children, seeking to terminate the pare nt-child re l at i o nship; was itself appointed sole manag ing conser

vator; and subsequently place d the children in the car e of the J aseks pursuant to a place ment ag ree ment. Id

. at 526-27. When P h i l ip J asek tested positive for marijuana , the Depa rtment remove d the children from the J aseks’ home. Id

. at 527. The J aseks filed suit seeking to be appointed the sole manag ing c onserva tors of the c hildren. Id . The Jaseks wer e held to ha ve standing under section 102.003(a) (9). Id . at 537. Contrary to J haver i’s asser

tion, the Department had not transfe rre d leg al rig hts over the children to the J aseks but rathe r it remained the sole manag ing conserva

tor prior to the fil ing of the J aseks’ suit. I n Jasek , as here, persons with actua l

car e, control , an d possession of children broug ht suit to modify a conser vatorship in which other people we re ve sted with leg al authority over the children.

10Having reje cted J haver i’s arg uments in support of his contention that McB eth lacks

standing under se ction 102.003(a) (9) of the Texas Family

Code, we ove rrule his sec ond issue. Grounds for Modi

fication I n his third issue, J haver i contends that the trial co u rt ab u s ed its discretion by modify ing the orig inal order beca use the evidenc e was leg ally and fac tually insufficient to suppor t the t rial co u rt ’s fi nding that the “gr ounds for modification” wer e established. J haver i first arg ues that the trial court abused its discretion in finding that a materia l and substantial chang e had occur red since the orig inal order establishing the pare nt-child rela tionship. Specifica l ly , J haver i maintains th a t e v id e n c e o f “ H

. E

. J. S. ’ s mo th e r ’ s r e li n q u is h me n t o f h e r p a

r e n ta l d u ti e s a n d [M c B e th ’ s ] u s u

r p a ti o n of those duties” is leg ally and fac tually insufficient to support the court’s finding of such a chang e.

A trial court may modify a conser vatorship order if the “cir cumstance s of the child,

a conser vator, or other party aff

ecte d by the order have materia lly and substantially chang ed” since the time of the re ndition of the orig inal order and if the modification is i n the child’s best interest. Tex. Fam. Code § 156.101(a) (1)( A). A court’s deter mination of whether a materia l and substantial chang e of circ umstances has occur red is not based on rig id rules an d i s fac t-specif ic. Zeifman , 212 S.W .3d at 593. Materia l chang es may be established by either direc t or circ umstantial evidenc e. In re T.M.P. , 417 S.W .3d at 564. A cha ng e in home surr oundings a nd moving of residenc es have been found to be materia l and substantial ch an ges. Id

. (citing In re A.L.E. , 279 S.W .3d at 429);

see Downey v. Downey , No. 03-12-00037- CV, 2014 WL 1362642, at *4 (Te x . App.—Aust in Apr 1, 2014, no pet.) (mem. op.). Whether a particula r chang e is materia l and substantial de pends on the circ umstances of

eac h case

. In re T.M.P. , 417 S.W .3d at 564.

11The ev i dence prese nted to the trial court in this case was leg ally and fac tually

sufficie nt to support the trial court’s finding that a materia l and substantial chang e had occur red. When asked by his trial counsel why the trial court was “d o i ng a modification,” J haver i testified, “B eca use there h as b ee n an extraordinary set of chang e in circ umstances. My son’s mother had left our son with her mother without letting me know.” The trial court additionally acknow ledg ed, “[A] m om has aba

ndoned her

child. That’s re ally

what happe ned her e.” There was also testimony that the chang e likely had a particula rly extreme impact on H.E.J.S ., who has been diag nosed as having Asperg er’ s sy ndr o me . D r . M c M illan, H.E.J.S .’s trea ting thera pist, testified, “You don’t chang e horses midstream with [H.E.J .S.] and expect him to be able to g o with the flow. As a matter of fac t, he has more trouble, beca use of the Asperg er’ s, than most children would have.” McMillan further testified t hat a change i n wh er e H.E.J .S. lived would be the “ty pe of tra nsition t hat would likely

cause him problems.” Given these fac ts, the trial court did not abuse its discretion in concluding that a materia l and substantial chang e had oc curr ed.

J haver i next arg ues that the trial court abused its d i scre tion by finding that it is in H.E.J.S .’s best interest that McB eth b e ap p ointed sole manag ing conservator. J haver i arg ues t hat the evidenc e was leg ally

and fa ctually

insufficient to support the trial court’s best-intere st f inding. The court looks to the following fac tors when deciding a child’s best interest: (1) the desires of the child; (2) the emotional and phy sical needs of the child now and in the future; (3) the emotional and phy sical dang er to the child now and in the future; (4) the pare ntal abilities of the individuals seeking custody ; (5) the prog rams available to assist these individuals to p r o mo te the best

12interest of the child; ( 6) the plans for the child by these individuals or the a g ency seeking custody ; (7) the stabili t y o f t h e home or proposed placement; (8) the acts or om issions of t he parent which may indicate that the ex isting parent-c hild rela tionship is not a prope r one; a nd (9) any excuse for the acts or omissions of the pare nt. Holley v. Adams , 544 S.W .2d 367, 371-72 (Tex. 1 9 7 6 ). I n chapte r 156 modification suits, a court may also consider sta b ility for the child and the need to preve nt constant custody

litigation. In re V.L.K. , 24 S.W .3d 338, 343 (Tex. 2000). The evidenc e in this case is leg ally and fac tually sufficie nt to support the trial court’s finding that the modification of conser vatorship is in H.E.J.S .’s best interest. As mentioned above, McMillan, H.E.J.S .’s thera pist, testified to the importance of s t ab i l i t y for a child with Asperg er’ s. There was signific ant conce rn expressed by multipl e witnesses that J haver i’s emotional volatility and ang er are damag ing to H .E.J .S.’s well-being

. McMillan testified that H.E.J.S ., prior to the start of J haver i’s supervised visitations, would become ag itated and insist on the prese nce of body g uards “to protec t us from Dad.” McMillan also testified that at their thera py sessions dur ing periods in which H.E.J.S

. had reg ular contac t with his fathe r, H.E.J.S .’s stutter would become more pronounce d when discussing his fathe r. McMillan also testified that H.E.J.S

. would “stockpile” toy

wea pons. McMillan testified that, based on what H.E.J.S

. communicated to her throug h his words and actions, she conclude d t h at he thought “his dad is scar y at times to him and scar y at times to other pe ople.” B y

contra st, McMillan testified that H.E.J .S. uses McBe th a s his “ touchstone” a nd considers Mc Be th’s residenc e to be “ his primary home.” Dr. Walker, H.E.J.S .’s g uardia n a d li te m, a ls o te s ti f

ie d to h e r c o ncer

ns about J haver i’s ability to pare nt. As mentioned above, Walker initially rec ommended that both J haver i and McB eth

13be appointed joint manag ing conser vators. Howeve r, Walker chang ed her rec ommend at i on afte r becoming “re ally conce rned ab o u t the focus not being on [H.E.J .S.] ” and “[J haver i’s] lack of understanding of [ H.E.J.S .’s] needs.” I n her reports to the cour t, Walker conve y ed the frustra tion of school officia ls, who asser ted that J haver i had resisted H.E.J.S .’s Asperg er’ s diag nosis, believing it to be something manufa cture d by McB eth in an attempt to “cr eate the impression that [H.E.J .S.] has specific needs that she is able to addre ss better than he can.” Walker testified that instead o f focusing on H.E.J.S .’s needs, J haver i f elt that his be ing H.E.J.S .’s fathe r “is big enoug h for him to be the pe rson in char g e.”

Wit h respe ct to J haver i’s tempera ment, Walker testified, “He tends to be ag g ressive

an d h is lang uag e and posture and demea nor tends to be ag g ressive

. . . . And I ’ve worke d wi t h pare nts who are tough. But I can tell y ou that I felt a bit u n s af e ar o u n d M r. J haver i.” Walker descr ibed an incident in which H.E.J.S ., clea rly distraug ht, contac ted her late at night and stated, “I don’t want to talk with my dad any more on the phone. I don’t want to g o back to my dad. My dad is scary . I want to tell y ou ever y thing that I ’ve be en kee ping a s a sec ret that Da d has said I should not share with y ou.” Walker further testified that H.E.J.S

. had stated that “[m] y dad is a bad person” and is “losing his mind.” On another occa sion, a ccor ding to Walker ’s testimony , H.E.J.S

. pointed to California on a globe and stated t o Walker, “Dad wil l g o back to Califor nia. He told me that if I don’t come back to live with him, he’ll g o to California. So y ou have to fix this. My dad is super sad, and I ’ve g ot to take ca re of this and y ou’ve g ot to fix this.” McB eth’s other daug hter, H.E.J.S .’s aunt, also testified that her bigg est conce rn was “to watch the way that [J haver i] uses . . . ag g ression to control [H.E.J .S.] with fea r and to manipulate

14behavior s from [H.E.J .S.] for his ow n g ain.” She a lso testified that J haver i has scre amed a t her in

front of H.E.J.S

. sever al times. After one such time, H.E.J.S . shook and cr ied, stating , “I knew he

was g oing to be mad at y ou. I knew he was. We talked about it. I should have been out in the porch with y ou. I could have stopped him from say ing those things. S omething is wr ong with him. He i s so mad all the t ime.” Acc ording to the aunt’s testimony , H.E.J.S

. then t urned to a fr i en d o f h i s who was pr esent a

nd stated, “Y ou don’t eve n want to know my dad. He will hurt y ou.” Whil e the tria l court did not issue specific finding s of fa ct, i t did briefly explain its

r e a s o n in g f

o r mo d if y in g th e c o n s e r

v a to r s h ip

. T h e tr ia l c o u

r t a c k n o w le d g e d Jh a

v e r i’ s lo v e f

o r H

. E

. J. S. and stated tha t it did not consider him a dang er to his child. Howe ver, it empha siz ed that McB eth “has stepped in and helped pare nt this child

. . . and shown that she is the stable forc e in this child’s life and is pare nting him primarily .” J haver i, disag ree ing with the trial court’s ruling but rec og nizi ng the g ravity of the testimony ag ainst him, conce ded, “[O]bvi ously there has been some testimony that y ou could have —y ou could have made e ven a w orse de cision.”

Ba sed on this re cord, w e conc lude that the trial c ourt did not abuse its discr etion in appointing McB eth as H.E.J.S .’s sole manag ing conser vator. There is sufficie nt evidenc e to support the re asonable ness of the tria l court’s de cision.

The evidenc e is leg ally and fac tually sufficie nt to support the trial court’s finding that the statutory require ments for modification wer e satisfied. The court did not abuse its discretion in finding that a materia l a

nd substantial c hang e had occur red since the orig inal order and that it is in H.E.J.S .’s best interest that McB eth be appointed sole manag ing conser vator. We overr

ule J haver i’s third issue.

15Const

itut ionali ty of Sec tion 156.101 I n h is f in a l is s u e , Jh a

v e r i c o n te n d s th a

t th e mo d if

ic a ti o n - o f

- c o n s e r v a to r s h ip p r o v is io n s contained in section 156.101 of the Texas Family Code violate the due proc es s clause s of the United States and Texas Constit utions and contra vene the United States Supreme Court’s direc tive in Troxel v. Granville that a trial court acc ord “at least s o m e specia l weig ht” to a pare nt’s own deter mination of a child’s best interests when order ing g randpa renta l visitation rig hts. See Troxel , 530 U.S. at 70; see also U.S. Const. amend. XI V § 1; Tex. Const. art. I , § 19. J haver i maintains that to avoid infring ing on the “funda mental rig ht of pare nts to make child rea ring decisions,” the statute must include a presumption in favor of pare ntal custody , which may be rebutted only when another party has proven that placing the child with the pare nt w ould ha ve a substantial r isk of harm to the child’s phy sical or menta l health or that the pa rent is unfit. See Troxe l , 530 U.S. at 72-73. J haver i raises the issue of the statute’s constitutionalit y for the first time in his brief

on appea l. A challeng e to the constitutionalit y of a statute must be raised in the trial court in order to be prese rved for appellate revie w. Lofti n v. Lee , 341 S.W .3d 352, 356 n.11 (Tex. 2011) (“L ee did not raise these issues in the trial court, and there fore she cannot arg ue them here .”); Karenev v. State , 2 8 1 S.W .3d 428, 434 (Tex. Crim. App. 2009) (conc luding that “a defe ndant m ay not raise for th e first time on a

ppeal a fac ial challeng e to the constitutionality of a statute” ); W

all v. Texas Dep’ t of F amily & Protective Servs. , No. 03-04-00716- CV, 2006 WL 1502094, at *1 (Tex. App.—Aust i n J une 2, 2006, no pet.) (mem. op.) (holding that challeng e to constitutionalit y of Texas Family Code section 161.103(3), g overning relinquishment of pare ntal rig hts, was waived beca use raised for first time in appellate brief) ; see In re Commitment of Cary , No. 09-14-00160- CV, 2015 WL 3406949,

16at *3 (Tex. App.—B eaumont May 28, 2015, no pet.) (mem. op.). Be cause J haver i did not challeng e

section 156.101’s constitutionalit y in the trial court, he may not do so on appea l and the cha lleng e has bee n waived. We ove rrule Jhaveri’ s fourth issue.

CONCLUSION H a v in g o v e r r u le d a ll o f Jh a

v e r i’ s is s u e s , w e a f

f ir m th e tr ia l c o u

r t’ s mo d if ic a ti o n o r d e r .

__________________________________________ Scott K. Field, Just ice Be fore Chief J ustice Rose, Jus tices Pemberton a nd Field Affir med Filed: De cembe r 10, 2015

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