## NO. 12
- 22
- 00207
- CV
IN THE COUR T OF APPEALS
TWELFTH COURT OF APPEALS DISTRICT

TYLER, TEXAS

IN THE INTEREST OF A. A. S. AND N. T. S., CHILDREN § § § APPEAL FROM THE 30 7TH
DISTRICT COURT
GREGG COUNTY, TEXAS
MEMORANDUM OPINION K.S. , acting pro se, appeals th e trial court’s order in a suit to modify the parent

- child relationship. He presents five issues on appeal. We affirm.

B ACKGROUND K.S. is the father of A.A.S. an d N.T.S., and A.C. is their mother. In June 2019, A.C. and K.S. divorced. A.C. and K.S. we re named joint m anagi ng conservators, and A.C. was awarded the exclusive right to designate the children ’ s resid ence within Gregg or Harrison counties. On February 19, 2020, A.C. filed a petition to modify the parent

- child relationship all eging that the circumstance s of the c hildren and a conservator had materially and substantially changed. She fu rther alleged K.S. committed acts of family violence. K. S. was inca rcerated on charges of violating a protective order, stalking, and crimin al trespass in a separate matter. In Mar ch , the court held a hearing on temporary orders and K.S. agreed that his access to the children would be

s uspended until h is release from jail and complet ion of a psychological evaluation. On April 5, 2022, K.S. filed a motion for a bench wa rrant

. 1 Th e trial court denied his request , and Appellant was not present for the f inal hearing. The evidence at the final hearing showed that a protect ive order ha d been rendered against K.S. in a separate matter involving a n individual not a party to thi s proceed ing. In June 2021, K.S. was convicted of stalking and

1 The motion to the court is dated March 7, 2022 but was not filed until A pril 5.2

continuous violation of a protective order and received a six

- year sentence. He was a ls o convicted of crimi nal trespass and violation of a protective order and sentenced to nine ty days in jail for tho se offenses. Since the temporary orders were entered in Mar ch, K.S. had remained incarcerated and had not completed the psychological evalu at ion. A.C. testified at the hearing that she believes K.S. may be suffering from a mental illness. She also requ ested the trial court suspend all K.S.’s access to the chi ldren until he undergoes a mental evaluation and until further order of the cour t. A .C. testified that she incurred $3,009.82 in attorney’s fees. At the conclusion o f the hearing, the trial cou rt declined to suspend all access to the children. It modified th e prior order to allow K.S. telephone access to the children. T he trial

cour t, upon a request from the Texas Attorney General’s office, terminated Appellant’s current child support obligation due to his incarceration and confirmed previous arrearages. It further ordered K.S. pay $3,000 in attorney’s fees. Upon K.S.’s reque st, the trial court entered findings of fact and conclusions of law. This appeal followed.

S UFFICIE NCY OF THE E VIDENCE In h is second and third issues, K.S. contends the evidence is legally and factually insufficient to support modification of the parent

- child relat ionship. Specifi cally, in his second issue, K.S. argues the evidence is insufficient to show a material change in circumstances. And in his third, he urges that the trial court erred by denying him any and all access to the children. Standard of Review W e review a trial court ’ s rulings in motions to modify custody, possession, and visitation under an abuse of discre tion standard. See In re B.M.B. , No. 05

- 20

- 00852

- CV, 20 22 WL 3226277, at *2 (Tex. App.

— Dallas Aug. 10, 2022, pet. denied ) (mem. op. ). A trial c ourt abuses its discret ion when it acts arbitrarily, unreasonably, or without reference t o any guiding rules or pr inciples. See Downer v. Aquamarine Operators, Inc. , 701 S.W.2d 238, 241

- 42 (Tex. 1985). “The mere fact that a trial judge may deci de a matter within his discretionar y authority in a different manner than an appellate judge in a sim ilar circumstance does no t demonstrate that an abuse of discretion has occurred.” Id

. at 242. In family law cases, the abuse of discretion standard of revi ew overlaps with the traditional su fficiency standards of review; as a result, legal and factual suff iciency are not independe nt grounds of reversible error, but instead constitute factors relevant to our assessment3

of whether the trial court abused its di scretion. Se e Moroch v. Collins , 17 4 S.W.3d 849, 857 (Tex. App.

— Dallas 2005, pet. denied). To determi ne whether the trial cour t abused its discretion we consider whether the trial court (i) had sufficient evidence on which to exercise its discretion and (i i) erred in its exercise of that di scretion. See In re A.B.P. , 291 S.W.3d 91, 95 (Tex. App.

— Dallas 20 09, no pet.). The applica ble sufficiency review comes into play with the first question. See Moroch , 174 S.W.3d at 857. We then determine whether, based on the elicite d evidence, the trial c ourt made a reasonable decision. See id

. An abuse of discretion ge nerally does not occur if some evidence of a substantive and probative character exists to support the trial court ’ s decision. See In re S.M.V. , 287 S.W.3d 435, 450 (T ex. App.

— Dallas 2009, n o pet.). Because the trial court has “full opportunity to observe witness testimony first

- h and,” it is “the sole arbiter when assessing the credibility and demeanor of witnesses.” See In re A.B. , 437 S.W.3d 498, 503 (Tex. 2014). Find ings of fact made after a bench trial are of the same force and dignity as a jury ’ s verdi ct upon special issues. I n re C.H.C. , 392 S.W.3d 347, 349

– 50 (Tex. App.

— Dallas 2013, no pet.). The trial court ’ s findings of fact are reviewable for factua l and legal sufficiency of the evidence under the same standards as applied in reviewing the sufficie ncy of the evidence suppo rting a jury ’ s answer to a special issue. Id

. at 350. In determining whether there is legally sufficient evidence to support a fin ding, we exa mine the record an d credit evidence favorable to the finding if a reasonable fact finder could, and we disregard e vidence contrary to the finding unless a reasonable fact finder could not. City of Keller v. Wilson , 168 S.W.3d 802, 827 (Tex. 200 5). “We sust ain a no

- evidence challenge when the record reveals either (1) a complete absence of evid ence of a vital fact, (2) the court is barred by rules of law or evidence from giving weight to the only evidence offered to prove a vital fact, (3) the ev idence offer ed to prove a vita l fact is no more than a scintilla of evidence, or (4) the evidence est ablishes conclusively the opposite of a vital fact.” See In re M.H.A. , No. 05

- 20

- 00787

- CV, 2022 WL 2527003, at *2 (Tex. App.

— Dallas July 7, 2022, no pet.) (mem. op.). In a factual suffi ciency review, we consider the entire record and will set aside the fin ding only if it is so con trary 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) (per curiam) ; Cameron v. Camer on , 158 S.W.3d 680, 683 (Tex. App.

— Dallas 2005, pet. denied).4

Applicabl e Law A trial court can modify the terms of a conservatorship order if (1) the child ’ s or parties’ circumstances have materially and substantially changed since the order was rendered and (2) doing so would be in the child ’ s best interest. T EX
. F AM
. C ODE A NN
. § 156.101(a)(1) (Wes t 2014 ) . The party seeking modification has the burden to establish these elements by a preponderance of the evidence. Zeifman v. Michels , 21 2 S.W.3d 582, 589 ( Tex. App.

— Austin 2006, pet. denied). The movant must show what conditio ns existed at the time of the prior order ’ s entry , then show what material and substantial changes occurred. Considine v. Considine , 726 S.W.2 d 253, 255 (Tex. App.

— Au stin 1987, no writ). The trial court is not confined to rigid rules or definite guide lines when deciding whether ci rcumstances have materially and substantially changed. Zeifman , 212 S.W.3d at 589. The determination is fact

- and cas e - specific. Id

. at 593. To determine t he child ’ s best interest, a court may use the nonexhaustive list of fac tors discussed in Holley v. Ad ams , 544 S.W.2d 367 (Tex. 1976). Those factors include the desires of the child, the emotional and physical needs of the child now and in the future, the emotional and physical danger to the child now and in the future, the pa rental abilities of the indivi dua ls seeking custody, the programs available to assist these individuals to promote the best interest of the child, the plans for the child, the stability of the home, the acts or omissions of the parent that may indicate tha t the existing parent

- child re lat ionship is not a proper one, and any excuse for the acts or omissions of the parent. Id

. at 371

- 72. In the context of custody modification , other factors include the child ’ s need for stability and the need to prevent consta nt litigation in child

custody ca ses. In re V.L.K. , 24 S.W.3d 338, 343 (Tex. 2000). Analysis K.S. contends the evidence is insufficient to show a material change in circu mstances. Specifically, he urges that A.C.’s petition to modify claimed K.S. was cha rged with family violence and the trial court did not make a family violence finding. Therefore, he argues , a material change in circumstances cou ld not have occurred. H e further urges that , as a result, the trial court could not take away his access to the children after naming him possessory conservator

. The evidence showed, and the trial court found, that K.S. previously agreed at the temporary orders hearing t hat his access to t he children would be su spended until his release5

from jail and comple tion of a p sychological evaluation

. At the time of t he temporary orders, K.S. was charged w ith violating a protecti ve order granted to his previou s gi rlfriend and was incarce rated as a result. A t the time of the final hearing, K.S. had been convicted of stalking and continuous violation of a protective order and sentenced to si x years i mpri sonment. H e had also been convicted of crim inal trespass a nd violation of a protective or der and sentenced to ninet y days confin ement. A.C. further testified that she believes K.S. “exhibited sign s and symptoms of

someone who suffers from some mental condition. ” S he believe d a material and substantial change in circumstances occurred and requested K.S. have n o access to the chil dren un til his

re le ase and complet ion of a p sychological evaluation. At the conclusion of the hearing, the trial court questione d A.C. regar ding K.S. ’s interactio ns with the children. A.C. re presented to the trial court that K.S. wrote letters a sk ing about the child ren; however, she did not respond to those letters. She further advised that she

“ was not aware that [she] was requi red to give him that information. ” The trial court noted that K.S. ’s actions le ad ing to his impr isonment were no t directed at the children . And A.C. admitted to the trial court that K.S. has ne ver posed a danger to the children. As a result , the trial court denied A.C. ’s request to refuse access to the children in its entirety. Th e trial court noted that K .S. had n ot been in contact with the children during his in c arceration ; there fore, the tr ial court determined it would be in the children ’s b est interest for the contact to be limited upon K.S. ’s release. And the trial court orde red that K.S. be entitled to a phon e call with each child once per week upon his release. The trial cou rt further conclu ded that K .S. ’s incarceration a nd th e issuance of the protective order constitute a material and substantial cha nge in circumstances. After reviewing th e re cord, w e conclude th e trial court ha d sufficient evidence of a

m aterial and substantial cha nge in circumstances to warrant modification of the parent

- child relationship

. See T EX
. F AM
. C ODE A NN
. § 156 .101. Furt hermore, the trial co urt had sufficie nt evidence to support limit ing K.S. ’s access to the children upon his release based upon the child ren ’s best inter est

. See Spence v. Davis , N o. 03

- 22

- 00179

- CV, 2023 WL 427063, at *14 (Tex. App.

— Austin Jan. 27, 2023, no pet.) (mem. op.)

. W e overrule K.S. ’s second and third issues.6 F AILURE TO I NTERVIEW C HILD IN C HAMBERS In his first issue, K.S. urges the tr ial court erred when it failed to inte rview A.A.S., who was thi rteen at the time of the final hearing, in chambers pursuant to his r equest. Section 153.009(a) of the Texas Famil y Code states, “In a nonjury trial or at a hearing, on the application of a par ty, the amicus attorney, or the attorn ey ad litem for the child, the court shall interview in chambers a child 12 years of age or ol der

. . . to determine the child ’ s wishes as to conservatorship or as to the person who shall have the exclusive right to de termine the child ’ s primary residence. ” T EX
. F AM
. C ODE A NN
. § 153.009(a) (West 2014 )

. And subsection (b) states that the court may i nterview the child in chambers to determine t he child’s wishes as to possession, access, or any other issue in the sui t affe cting the parent

- child relationship. Id. § 153.009(b). K.S. urge s that the mandatory duty of subsection (a) applies, while A.C. urg es the interview is discretionary under subsec tion (b). A.C. argues that because conservatorship and right to determin e primary residence were previously determin ed and not subject to the motion to modify, the court’s decision not to interview A.A.S. was not in error. However, that is a quest ion we need not reach. Even if S ection 153.009(a) applied, the trial cour t ’ s failure to conduct the required intervi ew is subject to a harm analysis. See T EX
. R. A PP
. P. 44.1; In re C.B. , No. 13

- 11

- 00472

- CV , 2012 WL 3139866, at *6 (Tex. App.

— Corpus Christi Aug. 2, 2012, no pet.) (mem . op.) ; see also In re D.I.B. , 988 S.W.2d 753 , 757

– 59 (Tex. 1999) (harm analysis should be performed even when statute is mandatory). The sole matter made the subject of the mand atory interview is the child ’ s wishes as to conservatorship a nd primary residence. See T EX
. F AM
. C ODE A NN
. § 153.009(a). Su bsection (c) of S ection 153.009 provides t hat “interviewing a child does not diminish the discretion of the trial court in determinin g the best interests of the child.” Id

. § 153.009(c). The tri al court has broad discretion in making conservatorship and po ssession determinations, and the court “ma y choose to either take into ac count the information learned at such an interview [under S e ction 153.009] or ignore it in its entirety.” In re A.C. , 387 S.W.3d 673, 678 (Tex. App.

– Texarkana 2012, pet. denied)

. Because the trial court is not re quired to tak e into account the information gl eaned du ring an i nterview with the child, we c annot sa y that the trial court ’ s failure to interview A.A.S. woul d cause a different outcome or result. See id

. ; Matter of Marriage of Comstock , 639 S.W.3d 118, 135

– 36 (Tex. Ap p.

— Houston [1st Dist.]7

2021, no p et.) ; T EX
. R. A PP
. P. 44.1(a) (providing that judgment may not be reversed on appeal unless error co mplained of probably caused r endition of improper judgment or probably prevented appellant from properly presenting case to court of appeals). Therefore, ev en if the trial court erred in failing to interview A. A. S. at K.S.’s request, any such failure was not harmful. We overrul e K.S.’s first issue.

D ENIA L OF B ENCH W AR RANT In his fourth issue, K.S. contends the trial co urt violated his du e process righ ts by den ying his request for a bench warrant. We review the trial court ’s decision on a request f or a bench warrant for an abus e of discretion. In re Z.L.T. , 124 S.W.3d 163, 16 4 (Tex. 2003). “All litigants forced to set tle disputes through the judicial process have a constitutional right to be heard at a meaningful time in a mean ingful manner.” In r e L.N.C. , 573 S.W.3d 309, 324 (Tex. App.

— Houston [14th Dist.] 2019, pet. denied ). Although inmates cannot be denied access to th e courts simply because they

are inmates, they do not have a constitutional right to appear in person in every c ourt proceeding. In re Z.L.T. , 124 S.W.3d at 165. Rather, courts must weigh the inmate ’ s right of access against protection of the integrity of the justice system. Id

. Courts co nsider a variety of factors when determining whether to grant a request for a b ench warrant, and th e inmate bears the burden to provide information justifying the need for his presence. 2 Id

. at 165

– 66. Here, K.S. w rote a l etter to the trial court on Mar ch 7, 2022, requesting a benc h warrant so he could be transferred to the Gregg County jail for the final hearing. However, his let ter did not explain w hy his interest in appearing outw eigh ed t he impact on the justice syste m. When denying K.S. ’ s request, t he trial court explained tha t K.S. failed to meet his burden becau se he failed to address any of t he relevant fact ors
. Because K.S. failed to satisfy his burden of providing informa tion to jus tify his presence at the fina l hearing , the trial court did not abuse its discretion by refusing to issue a bench warrant. Id. at 166; J.G . v. T ex. Dep ’t of Fam ily and

2 Trial courts deciding wh ether to grant an inmate ’ s request for a bench warrant are to consider factors inclu ding: th e cost and inconvenience of transporting the prisoner to t he courtroom; the security risk to the court and public posed by the inm ate; whether the inmate ’ s claims a re substantial; whether resolution of the litigation can reasonably be delayed until the inm ate ’ s release; whether the inmate can and will offer admis sible, noncumulative testimony that cannot be presented by deposition, t elephone, or some other means; whe ther the inmate ’ s presence will facilitate judging his or her demeanor or credibilit y; wheth er trial is to the court or a jury; and the inmate ’ s proba bility of success on the merits. In re Z.L.T

. , 124 S.W.3d 163, 165

– 6 6 (T ex. 2003)

.8

P rot ective Servs. , 592 S.W.3d 515, 521 (Tex. App.

— Austin 2019, no pet.)

. K.S. ’s fo urth issue is ov erruled.

A TTORNEY ’ S F E ES In his fifth issue, K.S. claims the trial court erred in granting A.C. ’s request for atto rney ’s fees. An appell ate brief mus t concisely state all is sues or points presented for review. T EX
. R. A PP
. P. 38.1(f). In addition, an appellate brief must cont ain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the reco rd. T EX
. R. A PP
. P. 38.1(i). Although we are to liberally construe pro se briefs, pro se litigants are held to the same standards as license d attorneys and must comply with all applicable rules of procedure; otherwise, pro se litigants would have an unfair advantage ov er parties represented b y counsel. Muhammed v. Plains Pipeline, L.P. , No. 12

- 16

- 00189

- CV, 2017 WL 2665180, at *2 n.3 (Tex. App.

— Tyler June 21, 2017, no pet.) (mem. op.); Giddens v. Brooks , 92 S.W.3d 878, 880

- 81 (Tex. App.

— Beaumont 2002, pet. d enied). Speci fi cally, pro se litigant s must comply with the rule requiring adequate briefing and citations to the record. Redmond v. Kovar , No. 09

- 17

- 00099

- CV, 2018 WL 651272, at *2 (Tex. App.

— Beaumont Feb. 1, 2018, no pet.) (mem. op.). Bare assertions of error, withou t argument, authority, o r substantive analysis of the legal issues waive error and present nothing for review on appeal. McKell ar v. Cervantes , 367 S.W.3d 478, 484 n.5 (Tex. App.

— Texarkana 2012, no pet.); Washington v. Bank of N.Y. , 362 S.W.3d 853, 854 (Te x. App.

— Dallas 2012, no pet.); Martinez v. El Paso County , 218 S.W.3d 841, 844 (Tex. App.

— El Paso 2007, pet. struck). An appell ate court has no duty to brief issues for an appellant, and if we were to do so, “we would be abandoning our role as neutral adju di cators and become

an a dvocate for that party.” In re A.E. , 580 S.W.3d 211, 219 (Tex. App.

— Tyler 2019, pet. denied). On this issue, K.S. ’ s b rief lacks citations to the record and any l egal authoriti es. In addition, the entirety of h is ar gum ent on attorn ey ’s fees states: [K.S.] asks that this court vacate the attorney ’s fees that were granted in er ror by the trial court ’s order. [ K.S.] also re quests that this court award [K.S.] $500.00 payable to [K.S.] for expe nses related to th is appeal by the Appelle[e ] [A.C.]. K. S. fail s to specify how th e trial court ’s awa rd of attorney ’s fees was not reasonable. We have no duty to brief is sues on K.S. ’s behalf. See In re A.E. , 580 S. W.3d at 219; Interest of D.H.L
. ,9

No. 12

- 21

- 00189

- CV, 2022 WL 2836417, at *1 (Tex. A pp
. — Tyler July 20, 2022, no p et.) (mem. op.). B ecause K.S. failed to c omply with the requi rements of Rule 38 of the Texas Rule s of Appellat e Procedure, he waiv ed this complain t. See T EX
. R. A PP
. P. 38.1.

D ISPOSITION Ha ving overru l ed K.S. ’s issues o ne thr ough four and determined that issue five is waived , we af firm the trial court ’s judgme nt.

G REG N EELEY Justice Opinion deliv ered June 30, 2023. Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

## COU RT OF APPEALS

TWELFTH COURT OF APPEALS DISTRICT OF TEXAS

JUDGMENT

JUNE 30 , 2023

NO. 12
- 22
- 00207
- CV

IN THE INTEREST OF A. A. S. AND N. T. S., CHILDREN

Appeal from the 307th D istrict Court of Gregg County, T exas (Tr.Ct.No. 2018

- 2133

- DR ) THIS CAUSE came to be heard on the appellate record and briefs f iled herein, and the same be ing considered, it is th e opinion of this Cou rt that there was no error in the judgment

. It is therefore ORDERED, ADJU DGED, and DECRE ED that t he judgment of the co urt below be in all things affirmed , and that this decision be c ertified to the court below for observance.

Greg Neeley , Justice

. Panel c onsisted of W

orthen, C.J., Hoyle, J., and Neeley, J.