Affirmed and Opinion Filed February 21, 2024

In The

Court of Appeals

Fifth District of Texas at Dallas

No. 05-22-01175-CV

IN THE INTEREST OF L.B., A CHILD

On Appeal from the 304th Judicial District Court

Dallas County, Texas

Trial Court Cause No. 15-00714

MEMORANDUM OPINION

Before Justices Molberg, Pedersen, III, and Nowell

Opinion by Justice Molberg

Mother appeals from the trial court’s order denying her motion to modify 

conservatorship. Mother, possessory conservator of her daughter L.B., sought to 

replace L.B.’s paternal aunt (Aunt) as sole managing conservator of the child, and 

following a hearing, the trial court denied the requested modification. In three 

issues, Mother argues (1) the trial court erred in failing to appoint her sole managing 

conservator; (2) the trial court failed to apply the fit parent presumption under Troxel 

v. Granville; and (3) Aunt failed to meet her burden of proof to show Mother was an 

unfit parent. We affirm in this memorandum opinion. 
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Background

On May 23, 2016, the trial court signed a final decree in a suit affecting the 

parent–child relationship. Among other things, the court found that appointing 

Mother as managing conservator of L.B. was not in the child’s best interest because 

such appointment would significantly impair the physical health or emotional 

development of the child. The court appointed the Department of Family and 

Protective Services managing conservator, but upon Aunt’s completion of the 

Fostering Connections Program, Aunt was to be made managing conservator. 

Mother and Father were appointed possessory conservators of L.B. All periods of 

access between Mother and L.B. were to be as arranged, agreed, and supervised at 

the discretion of the managing conservator. On November 30, 2017, the trial court 

appointed Aunt permanent managing conservator. Mother was continued as 

possessory conservator.

On November 12, 2021, Mother filed a petition to modify the parent–child 

relationship. She sought to become sole managing conservator and alleged the 

circumstances of the child, conservator, or other affected party had materially and 

substantially changed since the final decree. Mother filed a second petition two 

months later requesting the court to award Mother standard visitation.

The trial court conducted a hearing on the petitions. Rhonda Rieken, the 

attorney ad litem for L.B., informed the court that the child, who was nine years old

at the time of hearing, had lived with Aunt for the past seven years. Rieken said that 
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Mother was still with the same partner, D.S., she had been with when the final decree 

was entered. She said that, since the prior order, Mother and D.S. have had four 

children and they were all in Mother’s care. They had a home and vehicles. Rieken 

said that although Mother and D.S. were in a better financial position than they had 

been previously, Mother continued to deny the reasons why the court previously 

declined to make her managing conservator. In particular, Rieken said concerns 

about domestic violence remained. She said “[D.S.’s] own family . . . and [Mother’s] 

own family today still say that there’s domestic violence and that [L.B.] would not 

be safe around [D.S.] because of his explosive temper, his history of touching little 

girls, and his history of having sex with a fourteen-year-old child when he was a 

grown man.” She said Mother had still not participated in domestic violence 

counseling despite previously being ordered by the court to do so. Rieken was 

concerned Mother could not be protective of L.B. 

As to visitation, Rieken said Mother and Aunt had reached out to each other 

and were “having regular visits.” She said L.B. wanted to continue with regular 

visits to get to know Mother and her half-siblings better. Rieken said L.B. was 

“terrified that mom will just dump her again” like Mother seemed to do when she 

was angry following a hearing and refused to answer L.B.’s phone calls for an 

extended period of time. Given this, Rieken thought a visitation schedule of a 

specific time every other week would help L.B.’s confidence and her relationship 

with Mother. Rieken believed the visits needed to be supervised by Aunt. Rieken 
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said at one point an unsupervised weekend with Mother was allowed, and Mother 

“went against the rules and took [L.B.] out of state, was not answering phone calls, 

and . . . did not bring [L.B.] back at the agreed time.” Afterwards, further 

unsupervised visits were disallowed. 

Mother denied she did not answer L.B.’s phone calls but said L.B. did not 

always answer her calls. She said Aunt blocked her from everything, including 

Facebook. Mother said she did not think only visits should be considered, but that 

“it’s in the best interest of my child to be here with me and her siblings.” Mother 

presented no other testimony or evidence. 

Aunt said she was not comfortable only having contact with Mother but 

wanted a third party present at visits because Mother presented herself differently 

when others were present. 

The trial court stated that because Mother was still with D.S., the court could 

not allow L.B. to be returned to her because it would not be in L.B.’s best interest. 

However, the trial court announced she would order regular visitation and phone and 

video contact. On December 20, 2022, the trial court signed an order denying the 

motion to modify conservatorship in the suit affecting the parent–child relationship 

but granting modification of the possession and access orders. The trial court found, 

among other things, there had not been a material and substantial change in 

circumstances of the child, conservator, or other party affected by the order since the 

entry of the final decree, and that appointment of Mother as managing conservator 
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would not be in the best interest of L.B. The order also modified the visitation 

schedule to require supervised visitation every other Saturday for two hours and 

phone or video contact with the child for set times on Monday, Wednesday, and 

Friday evenings. This appeal followed. 

Discussion

In three issues, Mother generally argues insufficient evidence supported the 

trial court’s order and that she should have been made primary conservator of the 

child; the trial court failed to apply the fit parent presumption under Troxel v. 

Granville; and Aunt failed to meet her burden of proof to show Mother was an unfit 

parent. 

As a general rule, we give wide latitude to a trial court’s decision on custody, 

control, possession, and visitation matters. In re C.P.J., 129 S.W.3d 573, 576 (Tex. 

App.—Dallas 2003, pet. denied). We will not disturb a trial court’s decision on a 

motion to modify conservatorship unless the complaining party shows a clear abuse 

of discretion, meaning the trial court acted in an arbitrary and unreasonable manner 

or without reference to guiding rules or principles. See In re C.F.M., No. 05-17-

00141-CV, 2018 WL 2276351, at *3 (Tex. App.—Dallas May 18, 2018, no pet.) 

(mem. op.). As relevant here, a trial court may modify a conservatorship order only 

if the circumstances of the child, a conservator, or other party affected by the order 

have materially and substantially changed since the order was rendered and the 

modification would be in the child’s best interest. TEX. FAM. CODE § 156.101(a)(1). 
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The party seeking modification bears the burden of establishing a material and 

substantial change in circumstances. In re C.H.C., 392 S.W.3d 347, 349 (Tex. 

App.—Dallas 2013, no pet.). Changed circumstances may be established by 

circumstantial evidence, and the law does not prescribe any particular method for 

showing them. See In re C.F.M., 2018 WL 2276351, at *2. To prove the necessary 

change occurred, the party seeking modification must demonstrate what conditions 

existed at the time of the entry of the prior order and what material conditions have 

changed in the intervening period. In re S.N.Z., 421 S.W.3d 899, 909 (Tex. App.—

Dallas 2014, pet. denied). 

The trial court is in the best position to observe the demeanor and personalities 

of the parties and witnesses and to evaluate credibility, influences, and other forces 

that are not discernible from the record. In re D.C., No. 05-12-01574-CV, 2014 WL 

1887611, at *3 (Tex. App.—Dallas May 9, 2014, no pet.) (mem. op.). We view the 

evidence in the light most favorable to the trial court’s decision, and every legal 

presumption is indulged in favor of its judgment. Id. In family law cases, 

insufficiency of the evidence is not an independent ground for asserting error but is 

a relevant factor in determining if the trial court abused its discretion. Id. To 

determine whether the trial court abused its discretion we consider whether the trial 

court (1) had sufficient evidence upon which to exercise its discretion and (2) erred 

in its exercise of that discretion. In re S.I.J., No. 05-21-00918-CV, 2023 WL 

6350473, at *7 (Tex. App.—Dallas Sept. 29, 2023, no pet.) (mem. op.). When an 
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order affects the conservatorship and possession of a child, the child’s best interests 

are the primary consideration. Id. 

Based on the record before us, we conclude the trial court did not abuse its 

discretion in denying Mother’s requested modification to the conservatorship 

because Mother failed to present evidence establishing a material and substantial 

change in the circumstances of the child, a conservator, or other party affected by 

the order since the order was rendered or that such modification was in L.B.’s best 

interest. Mother presented no evidence demonstrating such a material and 

substantial change. For instance, Mother failed to present evidence showing what 

conditions existed at the time of the entry of the prior order. See In re S.N.Z., 421 

S.W.3d at 909. What evidence was presented through the ad litem showed that the 

original circumstances involving concerns about Mother’s partner and domestic 

violence had not changed. Mother directs us to no evidence in the record in support 

of her contention that the circumstances have materially and substantially changed 

since the prior order was rendered. Furthermore, Mother does not point to any 

evidence in the record demonstrating the conservatorship modification was in the 

best interest of L.B. Accordingly, we conclude the trial court did not abuse its 

discretion in denying Mother’s requested modification. 

In reaching this conclusion, we necessarily reject Mother’s contentions that 

Aunt had the burden of proof or that the trial court incorrectly failed to apply the fit 

parent presumption. The Legislature has adopted a presumption requiring a child’s 
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parents be appointed managing conservators in initial child custody suits unless it 

would significantly impair the child’s physical health or emotional development. 

See TEX. FAM. CODE § 153.131(a). This statutory presumption, however, “is not 

carried forward into the statute governing proceedings to modify those 

determinations.” In re C.J.C., 603 S.W.3d 804, 807 (Tex. 2020) (citing TEX. FAM.

CODE § 156.101(a)(1)); see also In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000) 

(“Chapter 156 does not provide for a parental presumption in modification suits.”). 

In Troxel v. Granville, the Supreme Court of the United States applied a 

constitutional presumption that fit parents act in the best interest of their children in 

finding unconstitutional a trial court’s order requiring a fit parent to permit visitation 

with the children’s grandparents. 530 U.S. 57, 68 (2000). While the Supreme Court 

of Texas has concluded this constitutional presumption applies when modifying an 

existing order naming a parent as the child’s managing conservator, see In re C.J.C., 

603 S.W.3d at 808, the court specified this holding “does 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,” see id. at 819. 

Thus, Mother, who along with Father was not named managing conservator 

in the order she sought to modify, had the burden to demonstrate that the 

circumstances of the child, a conservator, or other party affected by the order have 

materially and substantially changed since the order was rendered and the 

modification would be in the child’s best interest. See TEX. FAM. CODE
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§ 156.101(a)(1); In re C.H.C., 392 S.W.3d at 349; see also In re R.A., No. 09-20-

00275-CV, 2022 WL 7180524, at *7 (Tex. App.—Beaumont Oct. 13, 2022, no pet.) 

(mem. op.). As explained above, Mother did not meet that burden.1 We overrule 

Mother’s three issues. 

Conclusion

We affirm the trial court’s order. 

221175f.p05

 

1 Mother complains in her reply brief of reporter’s record inaccuracies and recites facts not before us. 

These complaints are not properly before us because “an issue raised for the first time in a reply brief is 

ordinarily waived and may not be considered by this Court.” See Stovall & Assocs., P.C. v. Hibbs Fin. Ctr., 

Ltd., 409 S.W.3d 790, 803 (Tex. App.—Dallas 2013, no pet.); see also Moreno v. Silva, 316 S.W.3d 815, 

817 (Tex. App.—Dallas 2010, pet. denied) (“Although we construe pro se pleadings and briefs liberally, 

we hold pro se litigants to the same standards as licensed attorneys and require them to comply with 

applicable laws and rules of procedure.”). 

/Ken Molberg/

KEN MOLBERG

JUSTICE
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Court of Appeals

Fifth District of Texas at Dallas

JUDGMENT

IN THE INTEREST OF L.B., A 

CHILD

No. 05-22-01175-CV 

On Appeal from the 304th Judicial 

District Court, Dallas County, Texas

Trial Court Cause No. 15-00714.

Opinion delivered by Justice 

Molberg. Justices Pedersen, III and 

Nowell participating.

In accordance with this Court’s opinion of this date, the order of the trial 

court is AFFIRMED.

It is ORDERED that each party bear its own costs of this appeal.

Judgment entered this 21st day of February, 2024.