Fourth Court of Appeals

San Antonio, Texas

MEMORANDUM OPINION

No. 04-23-00101-CV

IN THE INTEREST OF R.L. JR. and B.J.L., Children

From the 285th Judicial District Court, Bexar County, Texas

Trial Court No. 2019-PA-02352

Honorable Charles E. Montemayor, Judge Presiding

Opinion by: Beth Watkins, Justice

Sitting: Patricia O. Alvarez, Justice

Luz Elena D. Chapa, Justice

Beth Watkins, Justice

Delivered and Filed: July 19, 2023

AFFIRMED

Appellant A.F. challenges the trial court’s January 27, 2023 order modifying 

conservatorship of her children, R.L. Jr. (born 2016) and B.J.L. (born 2019).1 We affirm the trial 

court’s order.

BACKGROUND

A.F. is the mother of six children. R.L. Jr. and B.J.L. are her two youngest children, and 

their father is A.F.’s former partner, R.L.2

In 2019, the Texas Department of Family and Protective Services removed the children 

from A.F.’s and R.L.’s custody and filed a petition to terminate their parental rights. On August 4, 

1 To protect the privacy of the minor children, we use initials to refer to the children and their biological parents. TEX.

FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b)(2). 2 The trial court heard conflicting testimony about whether A.F. and R.L. were together at the time of trial.
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2021, the trial court signed a Final Order in Suit Affecting the Parent-Child Relationship (the 

original order) that, inter alia, declined to terminate A.F.’s or R.L.’s parental rights. The original 

order: (1) found that appointing A.F. and R.L. as managing conservators was not in the children’s 

best interest “because the appointment would significantly impair [the children’s] physical health 

or emotional development”; (2) found that appointing “a relative of the [children] or another person 

as managing conservator” was not in the children’s best interest; (3) appointed the Department as 

managing conservator of the children; and (4) appointed A.F. and R.L. as possessory conservators.

The original order provided that A.F. and R.L. would have visitation with R.L. Jr. and B.J.L. either 

“as mutually agreed upon” between the parents and the Department or in supervised visits twice a 

month for a total of eight hours. 

A.F. appealed the original order. See In re M.A., No. 04-21-00374-CV, 2021 WL 5605283, 

at *1 (Tex. App.—San Antonio Dec. 1, 2021, no pet.) (mem. op.) (per curiam). However, we 

dismissed her appeal for want of jurisdiction because she did not timely file a notice of appeal. See 

id.

On March 22, 2022, the Department moved to modify the original order only as to R.L. Jr. 

and B.J.L. The Department’s motion alleged that the circumstances of the children or another party 

affected by the original order had “materially and substantially changed since the rendition of the” 

original order. The Department asked the trial court to modify the original order to appoint the 

children’s paternal grandfather, Albert L., and his wife Ana L. as joint managing conservators.

On January 6, 2023 and January 25, 2023, the parties tried the Department’s motion to the 

bench. On January 27, 2023, the trial court signed a written order (the modification order) that 

removed the Department as R.L. Jr. and B.J.L.’s managing conservator and appointed Albert L. 

and Ana L. as joint managing conservators. The modification order did not alter A.F.’s or R.L.’s 

status as possessory conservators or their visitation with the children. The modification order 
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repeated the original order’s finding that appointing A.F. and R.L. as managing conservators was 

not in the children’s best interest “because the appointment would significantly impair [the 

children’s] physical health or emotional development[.]” A.F. timely appealed the modification 

order.

ANALYSIS

Standard of Review

A trial court may modify an existing order establishing conservatorship of a child if: (1) 

modification would be in the child’s best interest; and (2) “the circumstances of the child, a 

conservator, or other party affected by the order have materially and substantially changed since” 

the rendition of the existing order. TEX. FAM. CODE ANN. § 156.101(a). “The party seeking 

modification has the burden to establish these elements by a preponderance of the evidence.” 

Zeifman v. Michels, 212 S.W.3d 582, 589 (Tex. App.—Austin 2006, pet. denied).3

We review a trial court’s modification of a conservatorship order for abuse of discretion. 

See, e.g., Smith v. Karanja, 546 S.W.3d 734, 737 (Tex. App.—Houston [1st Dist.] 2018, no pet.). 

A trial court does not abuse its discretion unless its ruling is arbitrary, unreasonable, or made 

without reference to guiding rules or principles, or if the trial court “clearly fails to analyze and 

determine the law correctly or applies the law incorrectly to the facts.” Id. at 737–38.

Parental Presumption

A.F. does not contend that the Department failed to establish the elements required to 

modify an existing conservatorship order. See TEX. FAM.CODE § 156.101(a); Zeifman, 212 S.W.3d 

at 589. Instead, A.F. argues in her first issue that the trial court abused its discretion by finding that 

3 In her brief, A.F. contends, “For the court to be warranted in giving custody of a child to a person other than the 

child’s natural parent, the evidence must be clear and convincing.” While this may be a correct statement of law in an 

original custody proceeding, A.F. cites no authority holding that the clear and convincing evidence standard applies 

to the modification of an existing order that did not name either natural parent as managing conservator.
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her appointment as sole or joint managing conservator would significantly impair the children’s 

physical health or emotional development. 

Applicable Law

Section 153.131 of the Texas Family Code provides that “unless the court finds that 

appointment of the parent or parents would not be in the best interest of the child because the 

appointment would significantly impair the child’s physical health or emotional development, a 

parent shall be appointed sole managing conservator or both parents shall be appointed as joint 

managing conservators of the child.” TEX. FAM. CODE ANN. § 153.131(a). This statutory provision 

is referred to as the parental presumption. The Texas Supreme Court has held that this statutory 

parental presumption does not apply in a modification proceeding. See In re V.L.K., 24 S.W.3d 

338, 344 (Tex. 2000). 

The Texas Supreme Court recently clarified that a constitutional—as opposed to 

statutory—parental presumption applies in modification proceedings where the original order 

appointed at least one parent as the child’s managing conservator. In re C.J.C., 603 S.W.3d 804, 

816–19 (Tex. 2020). It also explicitly held, however, that this clarification did “not alter the burden 

of proof for modifications of court-ordered custody arrangements in which neither parent is named 

a managing conservator in the original order.” Id. at 819; see also In re H.V.S., No. 04-20-00217-

CV, 2020 WL 5646472, at *3 n.3 (Tex. App.—San Antonio Sept. 23, 2020, no pet.) (mem. op.).

Application

The parental presumption unquestionably applied during the 2021 trial that resulted in the 

original order. See, e.g., In re J.A.J., 243 S.W.3d 611, 614 (Tex. 2007); In re J.I.M., 517 S.W.3d 

277, 284 (Tex. App.—San Antonio 2017, pet. denied). However, the original order: (1) found that 

the Department overcame the parental presumption in that trial; and (2) did not name either A.F. 

or R.L. as managing conservator. Because A.F. did not timely challenge the original order, its 
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merits are not at issue in this appeal of the modification order. See, e.g., Hemenway v. Hemenway, 

No. 14-19-00978-CV, 2021 WL 4472685, at *1 n.1 (Tex. App.—Houston [14th Dist.] Sept. 30, 

2021, no pet.) (mem. op.).

Like the original order, the modification order found the Department had overcome the 

parental presumption. But because the original order did not appoint either parent as managing 

conservator, the parental presumption did not apply in this modification proceeding. See In re 

V.L.K., 24 S.W.3d at 344; In re H.V.S., 2020 WL 5646472, at *3. The finding A.F. challenges in 

her first issue therefore was not necessary to support the modification order. See TEX. FAM. CODE 

§ 156.101(a). “While an erroneous finding of fact on an ultimate fact issue is harmful error, an 

immaterial finding of fact is harmless and not grounds for reversal.” Wood v. Wiggins, 650 S.W.3d 

533, 562 (Tex. App.—Houston [1st Dist.] 2021, pet. denied) (internal quotation marks omitted); 

see also Cooke Cnty. Tax Appraisal Dist. v. Teel, 129 S.W.3d 724, 731 (Tex. App.—Fort Worth 

2004, no pet.) (defining “ultimate fact issue” as “one that is essential to the cause of action and has 

a direct effect on the judgment”). Accordingly, even if we assume the trial court erred by including 

the challenged finding in the modification order, we cannot say that error probably led to the 

rendition of an improper judgment. TEX. R. APP. P. 44.1(a)(1); Wood, 650 S.W.3d at 562.

We overrule A.F.’s first issue.

Voluntary Relinquishment

In her second issue, A.F. argues the trial court abused its discretion by finding she

voluntarily relinquished her children to the Department. During the trial in this case, the trial court 

orally noted that Chapter 153’s parental presumption is rebutted if the court finds the parent 

voluntarily relinquished the child. See TEX. FAM. CODE ANN. § 153.373. However, the

modification order did not contain a finding that modification of the original order was warranted 

because A.F. voluntarily relinquished her children. To the extent that the trial court’s oral 
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pronouncement conflicted with its written order, the written order prevails. See, e.g., In re J.B.R., 

No. 04-21-00253-CV, 2022 WL 4492096, at *4 (Tex. App.—San Antonio Sept. 28, 2022, no pet.) 

(mem. op.). Because the modification order did not contain the finding A.F. challenges in her 

second issue, we overrule that issue.

Standard Possession Order

In her third issue, A.F. argues the trial court abused its discretion by deviating from the 

standard possession order in the modification order.

Applicable Law

Section 153.313 of the Texas Family Code establishes a standard possession order that 

presumptively applies when a possessory conservator lives more than 100 miles from a child’s 

residence.4 TEX. FAM. CODE ANN. § 153.313. “The guidelines established in the standard 

possession order are intended to guide the courts in ordering the terms and conditions for 

possession of a child by a parent named as a possessory conservator[.]” TEX. FAM. CODE ANN.

§ 153.251(a). It is a rebuttable presumption that the standard possession order “provides reasonable 

minimum possession of a child” for a possessory conservator and “is in the best interest of the 

child.” TEX. FAM. CODE ANN. § 153.252. 

In determining whether to enter an order that deviates from the standard possession order, 

the trial court “shall be guided by the guidelines established by the standard possession order and 

may consider: (1) the age, developmental status, circumstances, needs, and best interest of the 

child; (2) the circumstances of the managing conservator and of the parent named as a possessory 

conservator; and (3) any other relevant factor.” TEX. FAM. CODE ANN. § 153.256. “The trial court 

may also place conditions on a parent’s access, such as supervised visitation, if necessary for the 

4 The evidence showed that A.F. lives in San Antonio and the children live in Houston.
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child’s best interest.” In re A.J.I.L., No. 14-16-00350-CV, 2016 WL 6110450, at *5 (Tex. App.—

Houston [14th Dist.] Oct. 18, 2016, pet. denied) (mem. op.). “We give wide latitude to a trial 

court’s determinations on possession and visitation issues, reversing the court’s decision only if it 

appears that the court abused its discretion in light of the record as a whole.” Id.

Application

The standard possession order would have entitled A.F. to unsupervised possession of the 

children during: (1) either the first, third, and fifth weekend of every month “or not more than one 

weekend per month of [A.F.’s] choice”; (2) the children’s spring vacations from school; and (3) 

forty-two consecutive days during the summer. TEX. FAM.CODE § 153.313. Both the original order 

and the modification order deviated from the standard possession order by granting A.F. 

supervised visitation with the children twice a month for a total of eight hours or as otherwise 

agreed between A.F. and the children’s managing conservator.

As a threshold matter, we note that a trial court may not enter a judgment that is not 

supported by the pleadings. TEX. R. CIV. P. 301; In re A.M., No. 07-20-00130-CV, 2020 WL 

7651973, at *6 (Tex. App.—Amarillo Dec. 23, 2020, pet. denied) (mem. op.); see also TEX. FAM.

CODE ANN. § 156.004 (“The Texas Rules of Civil Procedure applicable to the filing of an original 

lawsuit apply to a suit for modification under this chapter.”). Neither the Department nor A.F. 

sought to modify the original order’s possession schedule, and as noted above, the modification 

order did not change A.F.’s possession schedule.

5 Where, as here, the pleadings did not support a 

modification of the original order’s terms of possession, the trial court did not abuse its discretion 

by failing to make that modification. See In re A.B.K., No. 10-06-00272-CV, 2007 WL 3293724, 

at *6 (Tex. App.—Waco Nov. 7, 2007, no pet.) (mem. op.).

5 The only substantive difference between the two orders’ possession schedules is the identification of the children’s 

managing conservator.
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Nevertheless, because “pleading standards may be relaxed on issues concerning the 

custody of children,” we will consider whether the record supports the modification order’s 

deviation from the standard possession order. See In re J.O., No. 04-19-00381-CV, 2019 WL 

6719029, at *5 (Tex. App.—San Antonio Dec. 11, 2019, no pet.) (mem. op.). Lee Leday, who 

monitored visits between A.F. and the children, testified that A.F. had difficulty engaging with the 

children for an entire visit. He explained the family’s visits “originally started off in eight hours, 

but we [were] having a hard time being able to go eight hours, depending on the participants that 

are coming, whether [R.L.] was coming or not.” He testified the visits went well for the full eight 

hours when R.L. was present. But when A.F. was alone with the children, Leday noticed that she

“would often say [the children] were getting tired or there’s nothing to do” and “would shorten the 

visit up” to only three or four hours, even when Leday saw no indication that the children were 

tired or bored. Leday also testified that A.F. and Albert L. did not get along with each other and 

that “both parties talk in front of the children too much.” Leday noted, however, that the children 

enjoyed visiting with their parents.

At the time of the trial in this modification proceeding, the children had been living with 

Albert L. and his wife for more than two years. Albert L. testified that during that time, he “had 

nothing but issues with” A.F. and that she had “called CPS seven times on” him. He testified that 

these issues arose after he refused A.F.’s and R.L.’s request to “tell the Judge that [he] no longer 

could deal with the boys” in an attempt to have the children returned to A.F. and R.L.

Benito Marquez, a Department caseworker who was formerly assigned to this case, 

testified that A.F. and R.L. asked Albert L. “to kind of look the other way in terms of what the 

rules were, what visitation was” and became upset when he refused to do so. Marquez also testified 

that the children were originally removed from A.F.’s and R.L.’s custody due to domestic violence. 

He noted that while A.F. and R.L. claimed they were no longer in a relationship, “they would 
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always do everything together.” A.F. herself testified that she and R.L. were together at the time 

of trial.

A.F.’s counselor, Christina Gracia, testified that she believed “any kind of visitation or 

anything like that would be problematic” because of the distance between A.F.’s and Albert L.’s 

homes and because A.F. and Albert L. do not get along. Gracia also testified that she was 

concerned about the medications A.F. was taking “[i]f she’s going to have children in her care” 

because those medications “have a tendency to kind of knock you out or alter your mental status.”

The caseworker assigned to the case at the time of trial, Angie Steinau, testified that she 

had not seen any “changes in [A.F.’s] lifestyle or behaviorssince the case began.” She also testified 

that A.F. had been inconsistent in her visits with the children. Steinau noted, for example, that A.F. 

missed a visit with the children approximately four months before trial because “she had taken too 

much medication” and “was unable to drive.” Steinau testified that she believed A.F.’s visits with 

the children should continue to be supervised because “[t]here have been concerns that false 

allegations have been told to [R.L. Jr.].” She also testified that neither A.F. nor R.L. had 

demonstrated a willingness to comply with court orders.

A.F.’s psychiatrist, Dr. Robert Jimenez, testified that A.F. was doing well on her current 

medications and was “[a]bsolutely” able to care for small children. Similarly, several of A.F.’s 

friends and family members, including her now-adult son M.A., testified that they had seen 

changes in her behavior and believed she could care for R.L. Jr. and B.J.L. The trial court was not 

required to credit this testimony over the Department’s conflicting evidence. See, e.g., In re A.N.C., 

No. 04-22-00680-CV, 2023 WL 2297407, at *4 (Tex. App.—San Antonio Mar. 1, 2023, no pet.) 

(mem. op.). Additionally, while the evidence showed that one of A.F.’s older children had been 

returned to her custody, Steinau testified that because R.L. Jr. and B.J.L. are younger than that 

child, “[t]hey’re not able to protect themselves, they’re not able to care for themselves[.]”
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In the modification order, the trial court found it was in R.L. Jr. and B.J.L.’s best interest 

“to deviate from the standard possession order due to past obstruction, manipulation, and mental 

manipulation of the children . . . and a disregard of former orders of this Court by” A.F. and R.L. 

This finding is consistent with Steinau’s, Marquez’s, and Albert L.’s testimony. Under these 

circumstances, we cannot say the trial court abused its broad discretion by concluding that a 

deviation from the standard possession order was in the children’s best interest. See In re A.J.I.L., 

2016 WL 6110450, at *5; see also TEX. FAM. CODE § 153.256.

We overrule A.F.’s third issue.

CONCLUSION

We affirm the trial court’s modification order.

Beth Watkins, Justice