### 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. 03-13-00521- CV NO. 03-13-00522- CV

Wendi Mae Davidson, Ap pellant

v. Judy Kay Davidson and Rob ert Lloyd Davidson , Appellees

F ROM TH E DISTRI CT COURT O F TO M GREEN CO UNTY, 340 TH JUDICI AL DISTRICT NOS . C-0 5-0 084- J & A-0 6-0 166- J HO NORAB LE B ARB ARA ANN L. WALTH ER, JUDGE P RESIDING

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

Wendi Mae Davi d s o n, acting pro se, appea ls final order s denying her petitions to modify the pare nt-child rela tionship to provide her incre ased acc ess to her two children, T.R.D. and S.M.S

. We will affirm the orde rs.

1 Davidson is curr ently incar cer ated on convictions for murdering S.M.S .’s fathe r and rela ted evidenc e-tampering

. At rele vant times, Davidson’s two childre n have been under the 2 join t m an aging conser

vatorship of Davidson’s pare nts, appellee s J udy Kay and Robert L loy d Davidson, while Davidson has been desig nated as possessory conser vator with acc ess restric ted to

Trial court cause number C- 0 5-0084-J conce rned Davidson’s child S.M.S ., while 1 cause number A-06-0166- J conce rned T.R.D. The district court adjudicate d the cause s toge ther, and we ha ve done the same with Da vidson’s appea ls. The a ppellees ha

ve not filed a

brief or otherwise pa

rticipated in this appea l. See D avidson v. State , 249 S.W .3d 709 (Tex. App.—Austin 2008, pet. ref ’d). 2rec eiving semi-annua l written repor ts conce rning the children and sending the children “sea sonably
appropr iate g ree ting car ds” to acknow ledg e cer tain holiday s and their birthday s. Davidson has
repe atedly initiated modification proce eding s seeking to expand her acc ess, mostly without succe ss. I n this latest eff

ort, she seeks monthly in-person visitation at the prison and wee kly telephone calls, relief that has bee n denied he r in at lea st two prior proce eding s. To obtain the d e s ir e d mo d if ications of the order s g overning her acc ess to her children, Davidson had the burden of proving by a preponde ranc e of the evidenc e that (1) the circ umstances of the children, the conser vators, or other parties aff ecte d by the order s have materia lly and substantially chang ed since the date of the order s and (2) the modifications would be in eac h child’s best i n t ere st. After hear ing evidenc e and denying Davidson’s petitions, the district court made

3 expli ci t fi n d ings that “neither the circumstances of the child[ ren], nor any of t he conservator s has materia lly and substant i ally chang ed since the prior order was enter ed,” and that there was “no 4

cre dible evidenc e” that incre ased contact with Davidson would b e i n the children’s best interests. Whil e we have g ener ously construed the substance of her arg uments on appea l, it is inesca pable that
Da v i d s o n has not challeng ed the district court’s failure to find chang ed circ umstances—only th e best-intere st findings—a

nd we c an af

firm on this basis alone. 5

S ee Tex. Fam. Code § 156.101; Zeifman v. Miche ls , 212 S.W .3d 582 , 5 8 9 3 (Tex. App.—Austin 2006, pet. denied). Although the order conce rning S.M.S

. contained lang uag e stating that “[t] he circ umstances 4 of [S .M.S.] have materia lly and substantially chang ed, in that the child has ag ed four (4) y ear s since the rendition of the prior order ,” the subsequent finding s of fac t c ontrol. Capital Sr. Mgmt. 1, Inc. v. Texas D ep’t of Human Se rvs. , 132 S.W .3d 71, 74 n.3 (Tex. App.—Austin 2004, pet. denied). See, e.g. , In re A.L.E. , 279 S.W .3d 4 2 4 , 4 2 8 (Tex. App.—Houston [14t h Dist.] 2009, 5 no pet.) (obser

ving that if a party seeking modification fails to show “[a]s a threshold deter mination . . . a mater ial and substantial cha ng e in circ umstances . . . , the pe tition m ust be denied” ).

2Alterna tively , we conclude that the district court d id not abuse its discretion in

deter mining that Davidson failed to establish that her proposed modifications wer e in the children’ s best interests. I n revie wing that decision, we eng ag e in a two-prong ed inquiry , deter mining whether (1) the court had sufficie nt evidenc e upon which to exercise its discretion and (2) the court err ed in its application of that discretion. The supreme court has provided a non-exclusive list of fac tors to 6 consider w hen eva luating the child’s best intere st, including the c hild’s desires, his emotional and phy sical needs now and in the future, the emotional and phy sical dang er to the child now and in the future, and the pare nt’s acts or omissions

. We are mindful that “[t] he trial court is g iven wi d e 7 latitude in deter

mining the best interests of a minor child,” wh i ch “s h al l alway s be the primary 8 consideration of the court.” 9

Reviewing t h e re cord, there is plainly sufficie nt evidenc e upon which the district co u rt could have exercised its discretion. I t is bey ond dispute that Davidson murdere d S.M.S .’s fa

ther a nd subsequently

attempted to cove r up this e g reg ious c rime. F urther, D r. Johnny
Bur khalter, the children’ s counselor f or the past seven y ear s, testified that the children wer e doing “extremely well” under the appellee s’ car e, g iven the circ umstances, but that allowing Davidson to have incre ased contac t with the children would be only “to their detriment and not to their benef it.”
Although Davidson is acting pro se, we are bound to apply the same proce dural and substantive standards to her as with litigants repr esented b y co unsel. See Mansfield State Bank v. Cohn , 573 S.W .2d 181, 184-85 (Te x . 1978). Zeifman , 212 S.W .3d at 588. 6 See Holley v. Adams , 544 S.W .2d 367, 371-72 (Tex. 1976); Zeifman , 212 S.W .3d at 595. 7 Altho u gh i n ca rc eration is a fac tor in deter mining the best interest of a child, it is not singula rly dispositi ve. In re C.T.E. , 95 S.W .3d 462, 466 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)

. See G illespie v. Gillespie , 644 S.W .2d 449, 451 (Tex. 1982). 8 Tex. Fam. Code § 153.002. 9 3Both Bur

khalter and the amicus atto rn ey , J o h n Caldwell, opined that the proposed modifications

wer e not in the childre n’s best intere sts.

Davidson’s arg ument to the contra ry is essentially that t h e d i s trict court lacke d sufficie nt evidenc e on which it could have exercised its discretion. She complains that Caldwell did
not interview the children prior to t h e m o d i fi ca t i on hear ing and, as she sees it, was not equipped
to inf o rm the court of the children’ s desires. Had Caldwell interviewe d them, she maintains, the children woul d have expressed a desire for incre ased contac t. Davidson’s opinion reg arding the children’ s likely desires, which she articula ted to the district court, amounts to no more than specula tion and althoug h the desire of a child is a fac tor to consider, it is not singula rly dispositi ve. I n light of the evidenc e prese nted, we cannot conclude that any claimed err or in reg ard to Caldwell’s perf ormanc e of his duties would be ha rmful. 1 0 We overrule Davidson’s issues and a ffirm the district c ourt’s final or ders.

__________________________________________ Bob Pembe rton, J ustice
Be fore Chief J ustice Jones, J ustices Pemberton a nd Rose Affir med Filed: May

20, 2014

Davidson also reha shes an arg ument she previously made to this Court when challeng ing 1 0 the district court’s initial conser vatorship order for T.R.D. See In re T.R.D. , No. 03-09-00150- CV, 2010 WL 2428426, at *3-4 (Tex. App.—Austin J une 18, 2010, no pet.) (mem. op.). Essentially , she arg ues that, beca

use the district court had previously appointed her a possessory conser vator, it impliedly found that her acc ess to the children would not signific antly endang er their phy sical or emotional welfa

re, war ranting g reater acc ess to the children. We ag ain reje ct this arg ument, for the rea sons stated in our prior opinion. See id. ; see also Tex. R. App. P . 47.1. 4