Opinion issued March 12, 2019

In The

Court of Appeals 

For The 

First District of Texas 

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NO. 01-18-00840-CV

NO. 01-18-00843-CV

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IN THE INTEREST OF K. D. B., A Child

IN THE INTEREST OF L.R.A., A Child

On Appeal from the 312th District Court

Harris County, Texas

Trial Court Case Nos. 2014-61822 and 2003-69065

CONCURRING AND DISSENTING OPINION

Because this is a modification of conservatorship, possession, and access, 

the Texas Department of Family and Protective Services only needed to show by a 

preponderance of the evidence that the modifications were in the best interest of 
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the child. See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (standard of proof for 

conservatorship decisions is preponderance of the evidence). Because our review is 

only for an abuse of the trial court’s discretion, I concur with the Court’s opinion 

as to issues one and two, the modification of the conservatorship orders.

But the Department also bore the burden of coming forward with evidence 

concerning Laura’s and Kevin’s best interests as to modification of visitation with 

their mother, which has different considerations. See TEX. FAM. CODE §§ 156.001, 

.101(a). Because the record is bereft of evidence indicating that requiring 

supervised visitation and possession is in the best interests of the children, 

particularly Laura, I disagree that the Department has overcome the presumption 

against such restricted access and therefore dissent as to issue three. See id.

§ 153.252.

No one disputes that Laura and Kevin’s mother loves them and makes 

efforts to be involved in their lives. There is no suggestion that Laura and Kevin’s 

mother has behaved inappropriately toward them or mistreated them during visits, 

only that the fathers do not want to be responsible for supervising the visits.

Compare with In re S.N.Z., 421 S.W.3d 899, 907 (Tex. App.—Dallas 2014, pet. 

denied) (affirming supervised visitation where trial court found mother had a 

history of neglecting and abusing the child and there was a legitimate fear of 

mother absconding with the child). There was no testimony from the fathers about 
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why they preferred supervised visitation. The fact that Laura and Kevin’s mother 

has tested positive for marijuana and PCP does not support upsetting the 

presumption of normal, unsupervised visitation, without an indication that she used 

these substances around her children or that her use of these substances affected 

her interactions with them. Cf. In re N.J.H., No. 01-18-00564-CV, 2018 WL 

6617360, at *9 (Tex. App.—Houston [1st Dist.] 2018, no pet. h.) (Brown, J., 

concurring) (mem. op.) (in termination case, reliance on marijuana use for 

endangerment finding should be tied to evidence of impairment or other risk to a 

child’s health or safety). 

Moreover, vague allusions to the mother’s mental health or her hostility 

toward the Department do not permit a conclusion that her children would be better 

off never seeing her without direct supervision, even in a public place. It does not 

appear that anyone asked Laura whether she wanted to have only supervised access 

to her mother. Children require frequent contact with a parent to maintain a close 

and continuing relationship. TEX. FAM. CODE § 153.251(b); see In re M.M.S., 256 

S.W.3d 470, 476–77 (Tex. App.—Dallas 2008, no pet.) (court violated public 

policy under Texas Family Code § 153.251 and abused its discretion by modifying 

possession order to limit the father’s contact with children without evidence that 

doing so was in the children’s best interests). Because there was insufficient 

evidence that supervised visitation was in the children’s best interests, 
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I respectfully dissent from the portion of the Court’s opinion affirming the trial 

court’s order limiting the mother to supervised visitation.

Sarah Beth Landau

Justice

Panel consists of Justices Keyes, Higley, and Landau.

Landau, J., concurring in part and dissenting in part.