### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00705
- CV

Y. S., Appellant

v. Texas Department of Family and Protective Services, Appellee

FROM THE 98TH DISTRI CT COURT OF TRAVIS C OUNTY NO. D
- 1
- FM
- 16
- 004591 , THE HONORABLE JAN SOIFER, JUD GE PRESIDING

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

Followi n g a jury trial, Y.S., who is the maternal grandmother of t he child who is
the s ub ject of this suit , M.H., app eals from the trial court ’ s modifi ed final decree of conservatorship that removed the Grandmother as the nonparent so le managing conse rvator and appointed the Texas Departmen t of Family and Pro tective Services in her place. 1 In her sole
issue , G randmother argues that the eviden ce is legally and factually in sufficient to support t hat a

mat erial and substan tial change in circum stances had occurred to e ither her or C hild

. See Tex. Fam. Code § 156. 101 ( stati ng grounds for modifying order establishing conservator ship )

. Be cause we c onclude th at the evid ence is legally and factually sufficient to support the challenged fi nd ing , we affirm the m odified final decree of conservators hip.

1 We refer to Y.S. by her in it ials or as “ Grandmother ” ; M.H. as “ C hild ” ; Y.S. ’ s daughter and mother of Child , B.S., by h er ini tials or as “ M other ” ; and other family members by their initials , inc lu ding Mother ’ s c hi ld N.H ., w ho wa s born in July 2018

. See Tex. Fam. Code § 109.002(d); Tex. R. App. P. 9.8.2 Back ground In Augus t 2016, the Depar tment filed a suit a ffecting the parent

- child relationshi p that concer ned C hild, who was a few weeks old

. The D epar tment so ugh t to termin ate the
pa rent al rights of B.S., w ho was C hild ’ s mother, and the father. Grandmother , who i s C hild ’ s maternal grand mother , in te rve ned in the suit and , acting pro se, participated in the jury trial that
occurred in January 201 8

. In accor danc e w it h the j ury ’ s verdict , the trial court orally “ pronoun ced and rendered ” judgment on February 2, 2018 , a nd signed a f inal o r der on April 16, 2018 , terminat ing parental rights and appoint ing Grandmother as Child ’ s sole managin g cons ervator

.

On August 14, 2018, th e Department filed a motion to modify the f inal order and requested extraordina ry re lief suppor t ed by affi dav it

. In the motion to modify , t he D epartment requested that Grandmother be removed as the nonparent sole managing conservator of Child
and the Department or a competent adult recommen ded by the Department be app ointed in her place

. See id. § 153.005 (addressing appoint ment of sole or join t managin g cons ervator). The Department alleged that the circumstances of C hild, a conservat o r, or a par ty affected by the
order had mat eri ally and s ubstantially changed after the renditio n of the fin a l order and that
modification was in the best interest of C hild. See id. § 156.101. T he supporting affid avit for extraordinary relief was from a Child Pr otec tive Services (CPS ) investigator w ho averred a bout
an incident on August 12, 2018, involving Grandmother and her maternal grandchild , N.H. , who

was born to Mother in July 2018

. Grandmother took N.H. , who was a few weeks old , to the hospital where he w as t reated for unexplained fractured bones that me dical profession al s determ ined to be caused by non
- accidental trauma

. Grandmother provided se ver al incon s istent
stories rega rding N.H. and Mother “ as well as what happened to cause the fractures. ”3 The j u ry tri al on the Department ’ s motion to modi fy Child ’ s con servator occurred
in August 2019. Grandmother , act ing pro se , participated in t he jury trial. She testified on her
own behalf as w ell as calling Child ’ s maternal great aunt. Grandmother testified t hat N .H. was injured while in the care of one of Mother ’ s friends and that , after Mother called her,
Grandmother picked N.H. u p and took him to the hos pita l

. She also test ified that the doctors and

s ocial workers at the hos pital “ fabricated th e story ” ab out wh at happened. The maternal great

aunt testified that Child was with her when Grandmother took N.H. to the hospital and that Child

was “ never in imme diate dang er. ” The maternal great aunt, however, “ plead [ ed ] the Fifth ” and
refus ed to answer questi ons abou t the Department ’ s efforts to locate another child of Mother

— E.P., who was born in Ju ly 2019

.

The Department ’ s witnesses included the CPS investigator w ho prov ided the
af fidavit in support of extraordi na r y relief with the Departme nt ’ s motion to mo dify, oth er Depart ment employees , a pedi atrician who examined N.H. at the hospital in August 2018 , poli ce officer s and a social worker who had contact with Grandmother at the hospital , t he CASA volunteer and supervisor assig ned to Chil d, Chil d ’ s foster par ents , and psyc h ologists and a
ps ychiatrist who evaluated Grandmother

. The Dep artment ’ s ex hibits included N .H. ’ s medical
records related to his hospitalization i n August 2018 , the psych iatrist ’ s e valuation from May 2019, a p sycholo gi cal evalu ation from Oct ober 2018 , and pleadings in the case
.

The Department presented evi den ce about its safety concerns for Child , who was two year s old and nonverbal and whose w her eabouts were u nknown at th e time of N .H. ’ s unexplained injur ies

. T he pediatri cian who examined N.H. at th e hospital testified about N .H. ’ s arm and k nee fractures , describing the injuries and explain ing that, b ecause the unexplained injuries were determined to be cause d by trauma to a young c hild , N .H. was admitted to the4

hospital t o try to establ ish a “ safe p lacement ” for him , and CPS and law en f orcement were

contac ted

. The CPS invest i gation supervisor testified that Grandmother was informed that she
would not be allowed to leave the ho s pital with N.H. and that , if she d id, “ s he wo uld be making a
ch oice that would be concerning ” an d that the Depar tment “ would bas ic ally have concerns for [ Child ] b e ing in her custody. ” After this warning, Grandmother “ was very ups et, so she was yelling ” and “ took off

” with N .H. in a ca r seat from the h ospital

. In a park in g lot near the hospital , officers were able to det ain her , recover N .H., and take him back to the hosp ital. One of
the officers tes tified th at, w hile Grandmother was in the parking lot with the officer s, Mother

a rr iv ed , and Gra ndmother and Mother “ s eemed on th e same side as far as not letting [N.H.] back
into the hos pital

. ” He also testified th at Grandmother was “ yelling ” and “ seemed ver y agitated. ”
Another respon ding officer testified th at , after Grandmother left t he hosp ital with N .H. , t he
office rs “ actuall y had to phys ically restrain her in order to check the welfare of [N .H.]

. ”

The Department also presented testimony of Grandmother ’ s con flicting
statements about her home circumstances , who was N.H

. ’ s caregiver , and wh ere h e wa s living

. T he CPS investigati on supervisor testifi ed about Grandmother ’ s “ different statements regarding [ N .H.] ’ s whereabouts and how he may have sustained the injuries or t he cause of the injuries ” leading up to Grandmother taking N.H. to the hospita l

. In “ the same i nter view, ” Grand mother initially denied that N.H. was living in her home, telling the supervisor that she lived with Child
and her teenage son

. When she acknowle dged that she had N.H. , she told the supervisor that she

s h ar ed a room with N.H. , a nd Child and he r te enage so n shared a room
. She also told the supervisor that N.H. live d with someone ot her than Mother before N.H. “ came to be wit h [ her ] , ”
but she did not know the pri or careta ker ’ s name. One of the responding officers also t estified
that Grandmother told him tha t she w as N.H. ’ s p rimary caregiver , an d the hospital social worke r5

testified that Grandmother told her that she was N.H. ’ s primary caregiver , that N.H. a nd her son
lived with her , and she did not mention Child

.

The Department also presented e vi den ce about i ts concerns for Child ’ s safety stemming from Grandmother ’ s mental health and her att empts to defend and protect Mo ther ’ s interests

. E vidence showed that Grandmother ’ s mental health and her relationship with Mother

w ere impact ing her ability to safely car e for an d protect a yo ung child

. A conserva torship supervisor testified that Grandmother ’ s “ behavio r [had] become mor e er ra tic , ” and the CASA supervisor te stified about Grandmother ’ s “ alarming ” behavior

. Th e psychiatrist who evaluated
Grand mother in M ay 2019 tes tified that she was unre liable and had “ impaired ” and poor judgment “ enough that [care for] a small child would not be a good i d ea
. ” 2 He testified that
Grandmother continued to defend Mother as a “ fi t caretaker ” and “ endorse[d] corr u pt motives
and cons pir acy
- type theories ab out everyone fro m the hospital to administrati on to the S ta te,
the [Department]. ”

Evi dence sh owed that , when asked to provide contact information for Mother , Gr andmot her did not do so despite being in regular con tac t with Mother , and Grandmother

co ntinue d to defend Mother who had an “ extensive criminal history that include [d] child abuse charges ” and ha d been found to be a danger to her c h ildren. The De partment had re moved
Mother ’ s tw elve children from her. A rou nd the same time that Child was removed fro m Grandmother in August 2018 , the Department removed Mother ’ s one
- year
- old child from

2 Consistent with his testi mony , the psychiatrist ’ s written e v alu ation concl ud ed: Inasmuch as she is patently disingenuous, that is, consciousl y prevaricating with officials, and very impu ls ive ly a ttempted to run off with her injured grandchild, there is no question but that she is not a safe , competent or adequate caregiver for [ Child ] or any small child, due to mental illness.6

Mo ther ’ s care
. T he Department also removed Mo ther ’ s child , E.P., w ho was born in July 2019 , shortl y after he was born

. The bi rth verification s for these two children li sted a different name
other than M o ther ’ s , and Grandmother did not cooperate with the Department afte r the
De par tment obt ained legal custody of the c hildren. The children were mis sing for several weeks
before the Department was able to locate t hem

. A CPS e mp lo yee testified that , when the employee asked Grandmother for assistance in locating Mother ’ s one
- year
- old ch ild , Grandmother denied knowing th at child , whe re th at child was, or “ who [ Mother ] was ” and
would no t let the employ ee into her hom e
. The empl oyee also t e stified that video footage
showed Grandmother at the hospit al on the day E .P. was born but , when th e employee asked
Grandmother for assistance in locating E.P. , Grandmother was not cooperative and woul d not

re spond to questions

.

Th e conservat or ship determ ination was sub mitted to the jury, and t he jur y found
that the order des ig nating Grandmother the sole managing conservator of Child should b e modified to appoint the Department as the sole managing co nservator. Th e tr ial court ther eafter

en te red the modified final decree of conse rvatorship in acco rdance with the jury ’ s verdict. This appeal followed.

Anal ysis

A party seeking to modify an order that provides for the appointment of a
conservator of a c hild must establ ish that the modificati on would be in the child ’ s best interest
and , releva nt to this appeal, that “ the circumstances of the child, a conservator, or other party affected by the order have changed materially and substantially since

. . . th e date of t he re ndi tion
of t he order

. ” Tex. Fam. Code § 156.101

. In her sole issu e, Grandmother challenges the legal7

and factual suffici ency of the evidence to sup port that a material a nd substantial change of
circum stances had occurred to either her or Child

.

Sta ndard s of Review

In this case, the jury determined the conservatorship issue. See id. § 105.002 (authorizing p arty to demand jury trial and stating that court may not cont ravene jury verdict on
spec ified issues , including appointment of sole managin g conservat or)

. In this context, a legal sufficiency challenge may be sustained when the record discloses one of the foll owing situations: (i) a comp lete absence of evidence of a vital fact; (ii) the court is barred by rules of law or of
eviden ce from giv i ng weight to the only evidence offered to prove a vital fact; (iii) t he evidence offered to prove a vital fact is no more than a mere scintilla; or ( iv) the evidence establishes conclusively the opposite of the vital fact. City of Keller v. Wil so n , 168 S

. W.3d 802, 810 (Tex. 2005) ; see Len z v. Len z , 79 S.W.3d 10, 1 3 (Tex. 2002) ( describing rev iew of no

- eviden ce point )

.

“ Whe n reviewing a jury verdict to determine the factual sufficiency of the evidence, the court of appeals must consider and weigh all the e vidence [] and should set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. ” Cain

v. Bain , 709 S.W.2d 175, 176 (Tex. 1986).

Under either scope of review , we view the evidenc e in the light most favo rable to the finding, “ crediting favorable evidence if reasonable jurors could, and disregarding contrary evidence unless reasonable jurors could not

. ” City of Keller , 168 S.W. 3d at 807

. If reasonable people could differ in their conclusi o ns, we wil l not subst it ute our judgment for the jury ’ s, and we must defer to the jury ’ s rea s o n able determ in at ions of t he credibi lity of the witnesses, the weight to be given to their testimony, and the resolution of evidentiary conflicts. Id. at 819

– 20,8

822; Harris v. T

exas D ep ’t of Family & Protective Servs. , 228 S.W.3d 81 9, 82 2

– 2 3 (Tex. App.

— Austin 2007, no pet.)

.

M ater ial and S ubstantial C hange of C irc umstances

Grandmother do es not argue that the evidence was insu fficient to prove t hat the
modification of co nservators hip from her to the Depar t ment was in Child ’ s best interest. Her challenge is limited to the s uffi ciency of the evi d ence to support the threshold requirement of a material and substantial change in circum sta nces
. See Zeifma n v. Michels , 212 S.W .3d 582, 5 8 9 (Tex. App.

— Austin 2006, pet. denied) (explaining that threshold inquiry in conservatorship
modi fication action is whet her there has been mater ial and substantial change in cir cumstances
since date of rend ition of order)

. Sh e ar gues that “ [t]h ere was no ev idence produc ed at trial that [ her ] or [ Child ] ’ s circumstanc es had materially and substan tially changed prior to the Depar tment creat ing the change b y removing [ Child ] from [ Grandmother ] ’ s care. ”

To pr ove that a mat erial and substantia l change i n circum stances has occurred,

“ the petitione r must demonstrat e what conditions existed at the time of entry of the prior order as
compar ed to the c ircum stances existing at the time of the hearing on the motion to modify. ” Id

.

“ The pe titioner mu st show what mater ial changes have occurred in the inter vening period. ” Id.
The pet i t ioner ’ s burden of proof i n this context is a preponderance of the evidence. Id. ; Taylor

v. Tex as Dep ’ t of Pro t ecti ve & Regulatory Servs. , 160 S.W.3d 641, 653 (Tex. A pp.

— Austin 2005, pet. denied) ; see Tex. Fam. Code § 105.005 (stating that findings under this Title “ shall b e based on a preponderance of the evidence ” unless otherwise stated)

. Further, “ w hether a material and substantial ch ange of circum stances has occurre d is not guided by rigid rules and is fact sp ecific

. ” Zeifman , 212 S.W.3d at 593 ; see Miller v. Miller , No. 03

- 14

- 00603

- CV,9

2015 Tex. App. LEXIS 11319, at *9 (Tex. App.

— Austin Nov. 4, 2015, no pet.) (mem. op.) (listing examples o f mater ial chan ges in circ umstances and expl aining , “ [w]hether a particular change i s material and substantial depends on the circumstances o f each case ” ).

Characterizing Child ’ s remov al fro m her care a s “ improper , ” Grandmother ar gues that if “ an impr oper removal of ch ild fro m his managing conservat or can form the basis of a
material and substan tial change of circum stances to support modification , ” that would

“ evi scerate[] the very purpose of the requirement

. ” For this reason, Grandmother argues tha t the
releva nt “ wind ow of t ime ” f or determi n ing if a material and substantial change in circumstances
has occurred is “ from the date of the prior order granting cus tody to the ti me th at the Department petitioned the tria l court to remove t he child f rom her care ” and that , “ un der thi s paradigm , the Dep artme nt did not meet its burden. ”

This Court , however, ha s concluded that the releva nt time period is the

“ in tervening p er iod ” between the prior order and the “ c ircumstance s existing at the time of the hearing on the motion to m odify. ” Zeifman , 212 S.W.3d at 5 8 9

. Here , during the intervening period between the trial court ’ s prior order and the Au gust 2019 jury trial , mu l tiple wit nesses
te stified about Grandmother ’ s deterio rating me ntal health and their concer ns about her abilit y to

sa fely care f

or a young chil d

. The jury could have credit ed this evidence to conclude that there
ha d been a material and substantial change in Child ’ s or Grandmother ’ s circumstanc es that
sup ported modification of conserva torship. See Warren v. Ulato ski , No. 03

- 15

- 00380

- CV,
2016 Tex . App. L EXIS 8650, at *2 (Tex. App.

— Austin Aug. 11, 2016, pet. denied) (mem. op.) (obs erving that “ [caregiver] ’ s behavior showing that he or she has become an impr o per person to

exer cise custody ” ha s been found to be circum sta nce support ing modification or der)

.10 T he evidence also showed that Grandmother placed Mother ’ s interests over the
interests of very young children during the intervening time period

. When she was asked to
assist the Department in locating Mother ’ s mis sin g children , Grandmother denied k nowing “ who [ Mother ] was ” and did not cooperate in locating Mother ’ s missing children , one of who m was bo rn in July 2019

. Evidence showed that Grandmother staye d in regular contact with and
defend ed Mother after s he was pro vided with proof that Mother was a danger to her very young children

. See Zeifm an , 212 S.W.3d at 593

– 94 ( ex plaining that “ courts have all owed changes to be prov ed in a variety of ways ” and d is cussing changed circums tances that courts hav e found to
be s ubs tantial and material )

.

Further , even if the “ w indow of time ” closed when the Departmen t pe titioned to

rem ove C hild , the jury c ould have c redited the evidence about Mother ’ s other child N.H. , his injuries , an d Grandmother ’ s conduct at the h ospital in August 2018 to find a material and

su bstanti al change in circumstances. N.H . was born in July 2018 , which was after the trial court
rendered the prior order , and evid ence supported fi nding s that he was living wit h Grandmother
after he was born ; h e was non verbal and nonmobile when he was inju r ed ; h is fractures w ere
unexp lained and caused by trauma ; and Grandmother was N.H. ’ s primary care giver

. See id. ; see

a lso Warren , 2016 Tex. App. LE XIS 8650, at *2 (obs erving that “ change in home surrounding s ”
ha s been found to be change in circumstances t o support modification order); Miller , 2015 Tex. App. LEXIS 11319, at *9 ( same ). A l though evide nce was prese nted that sup ported that another person was taking care of N.H. when he was injured , the evidence showed th at
Grandmother tried to remove N .H. from the h ospital de s pite bein g warned of the consequences of doing so and that officers “ actually had to phys ically restrain her in order to chec k the welfa re of [N .H.]

. ” The jury could have credited th e evidence of Gr andmother ’ s conduct surrounding11

N.H. to find that there had been a material and substanti al change of circum s tances for
Grandmother or Child

.

Viewing the e vidence under the applicable st andard s of review, we conclude that the evidence was legally a n d factually suff icient to sup port a f

inding o f ma terial and su bstantial change of cir cumstances

. See City of Keller , 168 S.W.3d at 810; Cain , 709 S.W.2d at 176 ; Zeifman , 212 S.W.3d at 58 9

. T h us, we overrule Grandmother ’ s iss ue.

Conclusion Having co n cluded th a t the evi dence was legally and factual ly suff icient to support
th at th ere had been a material and substantial change in the c ircumstances of Grandmother or Child , we affirm the tr ial court ’ s modified final decree of conservatorship

.

__________ ___________________________ _____ M elissa Goodwin , Justice
Before Justices Go odwin, Kelly , and Smith
Af firmed
Filed: Ma rch 5, 2020