M A J O R I T Y   O P I N I O N BY JUSTICE GUZMAN


In this custody dispute, the child's biological father challenges a modification
order in which (1) the child's maternal grandmother and step-grandfather
were appointed joint managing conservators with the exclusive right to
determine the child's primary residence, and (2) although the father was
named a joint managing conservator, he was limited to supervised visitation
with the child.  Because we agree that the trial court erred in ordering
supervised visitation, we modify the trial court's order to remove this
requirement.  But because the parental presumption is inapplicable in a
modification proceeding and the trial court properly considered the child's
best interest in modifying conservatorship, we affirm the trial court's order as
modified.

I.  Factual and Procedural Background

C.A.M.M. (ACamille@)[1] was born in 1993.  Tammy and Mark, her parents,
were never married, but in 1994, Tammy filed an Original Petition to
Establish Paternity.  On November 8, 1996, the trial court entered an
AOrder on Motion to Modify in Suit Affecting the Parent-Child Relationship.
@  The parties do not dispute that in this order (the Aprior order@), the trial
court appointed Tammy sole managing conservator with the right to
designate Camille=s primary residence and appointed Mark possessory
conservator with a standard possession order.[2]

Tammy and Camille lived with Tammy=s mother, Jean (A@Grandmother@),
and Tammy=s step-father, also named Mark (AGrandfather,@ collectively,
the AGrandparents@),[3] essentially from the time of Camille=s birth.  Mark
has been involved in Camille=s life since her birth and took an even more
active parenting role after Tammy began to have serious health problems
when Camille was about nine years old.  Tammy died at home on February
17, 2005 while awaiting a heart transplant; Camille was home alone with
Tammy when she died.  Mark was immediately notified, and he took Camille
home with him for a few days.  Mark returned Camille to the Grandparents=
home when Camille resumed school.

In March 2005, the Grandparents filed a Petition to Modify the Parent-Child
Relationship, accompanied by Camille=s signed statement that she
preferred her grandparents to determine her primary residence.[4]  The
Grandparents later amended their petition, and their live pleading at the
time of trial was entitled AFirst Amended Petition to Modify the Parent-Child
Relationship and in the Alternative Petition in Suit Affecting the Parent-Child
Relationship and in the Alternative Suit for Grandparent Access.@  The
parties entered into an agreed interim order requiring Camille to reside with
the Grandparents until June 1, 2005, and continuing Mark=s standard
possession on the first, third, and fifth weekends.  The parties also agreed
that Mark would have additional visitation on Tuesdays and Thursdays after
school until the next morning so he could assist Camille with her
schoolwork.  The interim order granted Mark possession of Camille
beginning June 1, 2005, and granted the Grandparents possession on the
second and fourth weekends and every Wednesday overnight.  

At the end of the school year, Camille began residing with Mark under the
temporary order, but on July 25, 2005, the Grandparents sought to modify
the agreed interim order.  After a hearing before an associate judge, Mark
and both Grandparents were appointed temporary joint managing
conservators, and Camille returned to the Grandparents= residence.  Mark
was given a standard possession order, as well as additional visitation on
Tuesdays and Thursdays from the end of Camille=s school day until 8:00 p.
m.  

After conducting a non-jury trial and interviewing Camille in chambers, the
trial court appointed Mark and the Grandparents joint managing
conservators.  The Grandparents were awarded the right to designate
Camille=s primary residence, and Mark was given visitation under a
standard possession order and ordered to pay child support.  In its
conclusions of law, the trial court explicitly stated it was modifying the prior
order of November 8, 1996.  



Mark filed a motion for new trial on January 11, 2006, and argued inter alia
that the trial court=s rulings were not supported by a finding that he is an
unfit parent.  At the hearing on this motion, the trial court observed that it
Awould also not be able to give [Mark] a standard possession order@ if he
were unfit.  The trial court then reformed its order, adding a finding that
Mark=s appointment as Camille=s sole managing conservator would
significantly impair her physical health and emotional development.  The trial
court also required Mark=s visitation to be supervised by an adult approved
by Grandmother.  This appeal timely followed.

II.  Issues Presented

In four issues, Mark challenges the trial court=s findings and reformed order,
contending that the trial court (a) improperly categorized the lawsuit as a
modification suit rather than an original proceeding, thus avoiding the
parental presumption statute; (b) unconstitutionally applied the modification
statutes; (c) abused its discretion by appointing the Grandparents as joint
managing conservators rather than appointing Mark as the sole managing
conservator; and (d) improperly reformed its order to limit Mark to
supervised visitation.

III.  Analysis

A.        Standard of Review



Most orders arising from a suit affecting the parent-child relationship will not
be disturbed on appeal unless the complaining party can demonstrate a
clear abuse of discretion.  Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.
1990); In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002,
no pet.).  Such an abuse of discretion occurs when a trial court acts
arbitrarily, unreasonably, or without regard to guiding rules or principles.  
McGuire v. McGuire, 4 S.W.3d 382, 384 (Tex. App.CHouston [14th Dist.]
1999, no pet.).  A trial court does not abuse its discretion as long as some
evidence of a substantive and probative character exists to support the trial
court=s decision.  Huie v. DeShazo, 922 S.W.2d 920, 927‑28 (Tex. 1996)
(orig. proceeding).  But the fact that a trial court may decide a matter within
its discretionary authority in a different manner from an appellate court in a
similar circumstance does not demonstrate an abuse of discretion.  Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241B42 (Tex. 1985).  
Finally, the failure to analyze or apply the law correctly also constitutes an
abuse of discretion.  Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992)
(orig. proceeding).  This is so even when the area of law at issue is
unsettled.  Huie, 922 S.W.2d at 927B28.

B.        Characterization of the Suit as a Modification

Pleading in the alternative, the Grandparents characterized their action as a
suit for modification, an original proceeding, or a suit for access by a
grandparent.[5]  The trial court treated the proceeding as a modification, as
demonstrated by the court=s order entitled AReformed Order in Suit to
Modify Parent-Child Relationship.@[6]  In his first issue, Mark contends that
upon Tammy=s death, the prior conservatorship order was no longer a valid
order governing conservatorship and possession.  He reasons that because
the prior order became invalid, the trial court erred by treating this action as
a suit for modification, rather than an original suit affecting the parent-child
relationship (ASAPCR@).

1.         The Parental Presumption

The distinction between an original conservatorship determination and a
modification proceeding is more than procedural or semantic.  Under
Chapter 153 of the Texas Family Code, the trial court is required to apply a
Aparental presumption@ in an original proceeding:



[U]nless the court finds that appointment of the parent or parents would not
be in the best interest of the child because the appointment would
significantly impair the child=s physical health or emotional development, a
parent shall be appointed sole managing conservator[[7]] or both parents
shall be appointed as joint managing conservators of the child.

Tex. Fam. Code Ann. ' 153.131(a) (Vernon 2002).[8]  Thus, in an original
proceeding, Aevidence that the non-parent would be a better custodian@ is
insufficient to support the appointment of a non-parent as managing
conservator in preference to a parent.  See Lewelling v. Lewelling, 796 S.W.
2d 164, 167 (Tex. 1990).  Rather, the non-parent is required to
Aaffirmatively prove by a preponderance of the evidence that appointment
of the parent as managing conservator would significantly impair the child,
either physically or emotionally.@  Id.  

But in a modification proceeding, a non-parent is not required to prove that
a parental appointment would significantly impair the child.  In re V.L.K., 24 S.
W.3d 338, 341 (Tex.2000).  Instead, a non-parent who recently has lived
with the child for six months can be appointed as a sole or joint managing
conservator and obtain the right to designate the child=s primary residence
by demonstrating that the appointment would be in the child=s best interest,
and

(1)       the circumstances of the child, a conservator, or other party affected
by the order have materially and substantially changed since the earlier of:

(A)      the date of the rendition of the order; or

(B)      the date of the signing of a mediated or collaborative law settlement
agreement on which the order is based;



(2)       the child is at least 12 years of age and has filed with the court, in
writing, the name of the person who is the child=s preference to have the
exclusive right to designate the primary residence of the child; or

(3)       the conservator who has the exclusive right to designate the primary
residence of the child has voluntarily relinquished the primary care and
possession of the child to another person for at least six months.

Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2006).  Thus, in a suit for
modification, the trial court does not presume that appointment of the
surviving parent as sole managing conservator is in the child=s best
interest.  See V.L.K., 24 S.W.3d at 341.

By including the parental presumption in original suits affecting the parent-
child relationship but not in suits for modification of conservatorship, the
Legislature balanced the rights of the parent and the best interest of the
child.  On one hand, Athe interest of parents in the care, custody, and
control of their children@ has been described as Aperhaps the oldest of the
fundamental liberty interests@ recognized by the United States Supreme
Court.  Troxel v. Granville, 530 U.S. 57, 65, 120 S. Ct. 2054, 2060 (2000)
(plurality op.) (citing Meyer v. Nebraska, .262 U.S. 390, 399, 401, 43 S. Ct.
625, 626, 67 L. Ed. 1042 (1923)).  On the other hand, it is the public policy
of this State to resolve conservatorship disputes in a manner that provides a
safe, stable, and nonviolent environment for the child.  Tex. Fam. Code Ann.
' 153.001(a)(2) (Vernon 2002) (emphasis added).



The Legislature has determined that when these two interests compete
under conditions such as those presented hereCi.e., the sole managing
conservator has died, and the child has expressed a preference that her
primary residence be designated by the non-parents with whom she has
spent almost her entire lifeCthe child=s interest in stability prevails over the
parent=s right to primary possession.  Cf. Bates v. Tesar, 81 S.W.3d 411,
421B22 (Tex. App.CEl Paso 2002, no pet.) (noting that modification suits
raise policy concerns like stability not present in original custody
determinations).  Thus, when statutory requirements are met, the parent=s
right to primary possession must yield to the child=s right to a safe, stable
home.  See Warchol v. Warchol, 853 S.W.2d 165, 167 (Tex. App.
CBeaumont 1993, no writ) (stating that, in determining a proposed
modification of the terms of joint managing conservatorship, A[a]ny right of
the parent must yield to that primary consideration [of the child=s best
interest]@); Reid v. Horton, 278 S.W.2d 626, 629B30 (Tex. Civ. App.
CAmarillo 1954, writ ref=d n.r.e.) (AIn any dispute as to the custody of a
child, the prime considerations are the welfare and best interests of the child
and although the legal and natural claim of the parents to custody should
never be disregarded as an influential factor . . . such right must yield where
the child=s welfare requires that its custody be given to others.@); see also
In re Tex. Dep=t of Family & Protective Servs., 210 S.W.3d 609, 614 (Tex.
2006) (AIt is not the Court=s task to choose between competing policies
addressed by legislative drafting.@).

We recognize that the ramifications of the modification statutes can be far-
reaching and troubling, but any changes to the statutory scheme must come
from the Legislature.  Tex. Const. art. II, ' 1; see also City of San Antonio v.
Hartman, 201 S.W.3d 667, 673 (Tex. 2006).  We thus analyze Mark=s first
issue under the statutory framework erected to balance these sometimes
competing interests.  See Hartman, 201 S.W.3d at 673 (AWe must construe
this statute according to what it says, not according to what we think it
should have said.@).

2.         Application of the Statutory Framework



Here, the challenge to the characterization of this action as a suit for
modification rather than an original proceeding is resolved by the plain
language of the governing statutes. Pursuant to section 156.002 of the
Family Code, a Aperson . . . who, at the time of filing, has standing to sue
under Chapter 102 may file a suit for modification in the court with
continuing, exclusive jurisdiction.@  Tex. Fam. Code Ann. ' 156.002(b).[9]  If
the child=s managing conservator is deceased, a person  has standing to
sue under Chapter 102 if the child and the child=s managing conservator
resided with the person Afor at least six months ending not more than 90
days preceding the date of the filing of the petition . . . .@  Id. ' 102.003(11)
(Vernon Supp. 2006).  Thus, the Family Code encompasses modification of
a prior order following the death of a sole managing conservator.  Because
the Grandparents conclusively established that Tammy and Camille lived
with them as required by section 102.003(11), they not only had standing to
pursue conservatorship through an original proceeding,[10] but also had
standing to seek modification of the prior order:  

To further its goal of providing stable home environments for Texas children,
the Legislature specifically granted standing to file a modification suit
following the death of a managing conservator to persons . . . with whom
children and their managing conservator have resided for at least six
months prior to the filing of the modification suit.

In re P.D.M., 117 S.W.3d 453, 464 (Tex. App.CFort Worth 2003, pet.
denied).  Thus, in accordance with the Legislature=s preference for stability
when modifying prior conservatorship orders, the trial court=s treatment of
the proceeding as a suit for modification is sanctioned by provisions in the
Family Code permitting a non-parent to sue for modification upon the death
of the managing conservator if the child and the conservator resided with
the non-parent.  And as previously discussed, the parental presumption
does not apply in a suit for modification.  See V.L.K., 24 S.W.3d at 343
(noting that Athere is a difference between an original conservatorship
determination and a modification@ in that modification suits raise policy
concerns such as a child=s need for stability that may not be present in
original conservatorship determinations).  



Relying on Greene v. Schuble, Mark argues that the suit should have been
treated as an original proceeding because the prior order did not survive
the managing conservator=s death.  654 S.W.2d 436, 438 (Tex. 1983) (orig.
proceeding).  In Greene, the Texas Supreme Court held, AIn the absence of
specific provisions to the contrary in an order establishing conservatorship,
the death of the managing conservator ends the conservatorship order and
it no longer constitutes a valid, subsisting court order for purposes of [the
prior habeas statute].@  Id. at 437B38.  The Greene Court went on to
specify that A[t]he office of habeas corpus is limited to restoring possession
of the child to the person legally entitled to present possession, and may not
be used to relitigate custody.@  Id. at 438.  But in Greene, a separate
conservatorship proceeding was pending in the trial court; thus, the only
issue before the Court was who, as between a natural parent and a step-
parent, had the right to immediate possession of the children.  Id.  Moreover,
the Court was careful to limit the application of its holding to the outcome of
the habeas corpus proceeding, and expressly stated that the Aopinion does
not reflect consideration of the merits of the other proceedings pending in
the court below.@  Thus, we cannot agree with Mark=s argument that the
trial court abused its discretion by failing to extend Greene=s holding to a
modification proceeding.  

The Second Court of Appeals has considered and rejected a similar
argument.  P.D.M., 117 S.W.3d at 458B62.  In rejecting the argument that
the death of a managing conservator terminated a prior conservatorship
determination, the court noted Athe fact that a prior [conservatorship] order
may no longer effectively govern the present right of possession to a child
simply does not alter its status as a prior order or the reality of its prior
existence, i.e., the effect it had on the subject children=s lives.@  Id. at 462
(holding that a prior order appointing a managing conservator is a prior
order for purposes of a suit to modify the parent-child relationship).  We find
no authority for a contrary result here.



We note that the prior order of November 8, 1996 order was an agreed
order, and we emphasize that there is no indication in the record that Mark
has ever been determined to be a less fit parent than Tammy.  According to
the parties, the parents agreed that Tammy would be appointed sole
managing conservator and Mark would be the possessory conservator
under a standard possession order.  But because the trial court is
authorized by statute to treat this action as a suit for modification to which
the parental presumption does not apply, we cannot conclude that the trial
court abused its discretion by doing so.  We overrule Mark=s first issue.

C.        Alleged Unconstitutional Application of Modification Statutes

In his second issue, Mark asserts that the trial court unconstitutionally
applied Chapter 156 of the Family Code, which governs modifications,
instead of Chapter 153, which governs original proceedings.  He argues that
because the parental presumption does not apply to modifications, he has
been deprived of his due process rights.  Although this issue appears to be
an Aas applied@ constitutional challenge, his argument does not provide a
basis upon which we may determine such an issue.  

An analysis of a statute=s constitutionality begins with a presumption of
validity.  In re Commitment of Fisher, 164 S.W.3d 637, 645 (Tex. 2005).  The
burden is on the party attacking the statute to show that it is
unconstitutional.  See Walker v. Gutierrez, 111 S.W.3d 56, 66 (Tex. 2003).  
Here, Mark does not explain how his fundamental due process  rights were
violated.  He argues as follows:



[T]he trial court found that ' 156 of the Texas Family Code applies rather
than ' 153.  Appellant argues that the trial court abused its discretion by
improperly applying the Texas modification statute resulting in a violation of
father=s due process rights. . . . [T]he court clearly took the position that
there was no parental presumption and it would not be applied. . . . There is
no indication that the court required Appellees to rebut the parental
presumption.  . . It appears that the court has set a lower standard of proof
for a modification statute then [sic] required by Troxel[[11]]. . . . I submit that
the modification statute deprives a parent of more rights than the
grandparent access statute and therefore under In [r]e Mays-Hooper[[12]]
the standard of proof should be clear and convincing evidence that parent
[sic] is unfit, clear and convincing evidence that child=s health or emotional
well-being will suffer if trial court awards custody to father and denies relief
to [Grandparents].  To determine otherwise deprives Appellant of his due
process rights.



It is unclear whether Mark complains of the trial court=s discretionary
treatment of the case as a modification suit, the effect of the modification
statutes, or the burden of proof; it is also unclear whether he attributes error
to the trial court or the Legislature.  We further note that Mark did not
request appointment as Camille=s sole managing conservatorship or the
right to designate Camille=s primary residence until after the trial court
appointed all parties as joint managing conservators and granted the
Grandparents the right to designate Camille=s primary residence.  See
Quilloin v. Walcott, 434 U.S. 246, 255, 98 S. Ct. 549, 555 (1978) (holding
that the due process rights of an unwed father who never had or sought
actual or legal custody of his child were not violated in allowing child to
remain with the family with whom it already resided).  And the trial court may
not grant relief in the absence of pleadings supporting such relief.  Vaughn
v. Drennon, 202 S.W.3d 308, 314 (Tex. App.CTyler 2006, no pet.); see also
Tex. R. Civ. P. 301 (AThe judgment of the court shall conform to the
pleadings . . . .@).

Although it is conceivable, as the concurrence intimates, that the
modification statutes may not always adequately protect parental rights in
every case,[13] Mark has not met his burden to establish that his own
constitutional rights have been violated.  Thus, we overrule his second issue.

D.        Trial Court=s Failure to Appoint Mark Sole Managing Conservator



In his third issue, Mark contends the trial court abused its discretion by
appointing the parties joint managing conservators rather than appointing
him sole managing conservator.  In this issue, he asserts several no-
evidence points and challenges various of the trial court=s factual findings.
[14]  As we have determined that the parental presumption does not apply in
a modification proceeding, we reframe Mark=s issue as one challenging the
sufficiency of the evidence to meet the statutory requirements for
modification.

1.         Review of Sufficiency Challenges

In our review of these findings, we apply a hybrid abuse-of-discretion
analysis to determine whether the trial court (1) had sufficient information on
which to exercise its discretion, and (2) erred in its application of discretion.  
See Zeifman v. Michels, 212 S.W.3d 582, 587B88 (Tex. App.CAustin 2006,
pet. denied); see also Sotelo v. Gonzales, 170 S.W.3d 783, 787 (Tex. App.
CEl Paso 2005, no pet.).  Thus, legal and factual insufficiency are not
independent grounds for reversal, but instead are factors to be considered
in determining whether the trial court abused its discretion.  Zeifman, 212 S.
W.3d at 587; Sotelo, 170 S.W.3d at 787.  

To determine if the evidence is legally sufficient, we review the entire record,
considering evidence favorable to the finding if a reasonable factfinder
could, and disregarding evidence contrary to the finding unless a
reasonable factfinder could not.  City of Keller v. Wilson, 168 S.W.3d 802,
828 (Tex. 2005).  The evidence is factually insufficient if the finding is so
contrary to the overwhelming weight of the evidence as to be clearly wrong
and manifestly unjust.  See Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986)
(per curiam).  But it is for the fact finder to determine the weight to be given
to the testimony and to resolve any conflicts in the evidence.  Sotelo, 170 S.
W.3d at 787.  



Finally, after assessing the sufficiency of the evidence, we determine
whether, based on the elicited evidence, the trial court made a reasonable
decision.  See Zeifman, 212 S.W.3d at 588; Soleto, 170 S.W.3d at 787.  AIn
other words, we must conclude that the ruling was neither arbitrary nor
unreasonable.@  Sotelo, 170 S.W.3d at 787.

2.         Statutory Requirements for Modification

Here, the trial court did not err in modifying conservatorship if modification
was in Camille=s best interests and if there had been a material and
substantial change in circumstances or Camille had filed a written statement
naming the person whom she would prefer to designate her primary
residence.  See Tex. Fam. Code Ann. ' 156.101(1), (2).  Mark does not
challenge the trial court=s finding that there had been a material and
substantial change in circumstances since the prior order, and it is
undisputed that Camille had indicated her preference in writing.  Thus, we
consider whether the Grandparents established that it was in Camille=s best
interest that they be appointed joint managing conservators with the
exclusive right to determine Camille=s primary residence.

3.         The Best Interest of the Child



In determining the best interest of a child, a court may consider, inter alia:
(1) her desires, (2) her emotional and physical needs now and in the future,
(3) any emotional and physical danger to the child now and in the future, (4)
the parental abilities of the individuals seeking primary possession, (5) the
programs available to assist these individuals to promote the child=s best
interest, (6) the plans for the child by those seeking primary possession, (7)
the stability of the home or proposed placement, (8) the acts or omissions of
the parent which may indicate that the existing parent‑child relationship is
not a proper one, and (9) any excuse for the acts or omissions of the
parent.  Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976).[15]  In the
specific context of modification of conservatorship, courts also consider (10)
the child=s need for stability; and (11) the need to prevent constant litigation
regarding conservatorship of the child.  In re V.L.K., 24 S.W.3d at 343; Long
v. Long, 144 S.W.3d 64, 68 (Tex. App.CEl Paso 2004, no pet.).

Turning to those factors that are present here, we begin our analysis by
noting that Camille indicated in writing that she preferred to have the
Grandparents designate her primary residence.  She also testified that she
preferred to remain with the Grandparents and that living with her father
would make her Auncomfortable.@  Grandmother testified that living with
Mark would impair Camille=s emotional development because Camille has
not had an opportunity to grieve for her mother.  Additionally, a school
district counselor testified that Mark did not seem to understand that Camille
needed time to grieve after her mother=s death.

Considering evidence of the parental abilities of the parties and the
programs available to assist them in promoting Camille=s best interest, we
note that the Grandparents completed parenting classes and grief
counseling classes in their efforts to prepare for taking a more active role in
Camille=s life.  Mark also completed grief counseling classes, but did not
complete a court-ordered parenting class prior to trial.  Regarding the
parties= plans for Camille, Grandmother indicated that she was present in
the mornings and took Camille to school, and Grandfather was present in
the afternoons and brought Camille home from school.  She also stated that
she planned on enrolling Camille in dance lessons and encouraging her to
take art classes.  



In contrast, Mark stated that Camille would be required to ride the school
bus because he started work early in the morning; he indicated that he
would rely on his girlfriend to ensure that Camille was ready for school in the
mornings, but he would be home when Camille returned from school.  Mark
admitted that his girlfriend owns the house where he lives, and he could be
forced to leave on short notice if their relationship deteriorated.
Grandmother also testified that Mark Ahas a history of moving residences.
@  The trial court could have concluded that removing Camille from the
home where she had lived for the past ten years would not be in her best
interest because it would decrease the continuity and stability in her life at a
time when she was already faced with the loss of her mother.  

On this record, we cannot conclude that the trial court had insufficient
evidence upon which to exercise its discretion or erred in its application of
this discretion.  To the contrary, the record supports the trial court=s
determination that the modification is in Camille=s best interest.  
Accordingly, we overrule Mark=s third issue.

E.        Reformation of Judgment

In his fourth and final issue, Mark asserts that the trial court erred by
reforming its order to require his visitation with Camille be supervised by a
person approved by Camille=s Grandmother.  We agree.

The trial court must begin with a rebuttable presumption that the standard
possession order is in the best interest of the child.  See Tex. Fam. Code
Ann. ' 153.252 (Vernon 2002).[16] And even when the presumption is
rebutted, A[t]he terms of an order that . . . impose[] restrictions or limitations
on a parent=s right to possession of or access to a child may not exceed
those that are required to protect the best interest of the child.@  Id. '
153.193.  

In its original order, the trial court placed no such restriction on Mark=s time
with his daughter.  But after the hearing on Mark=s motion for new
trialCduring which no argument was made regarding visitationCthe trial court
reformed its order to require that Mark=s visits be supervised by a person or
entity approved by Grandmother.  The only reference to Mark=s possession
of Camille occurred in the following colloquy between the trial court and
Mark=s trial counsel, who was arguing in favor of Mark=s appointment as
sole managing conservator:



Mark=s Counsel:        . . . So far as the grandmother was concerned, even if
you go under the Court=s ruling [sic] that it was a material and substantial
change in circumstance, I submit to you that under Troxel the Court would
also have to find that [Mark] was not a fit parent or to sort of state it
definitely.

The grandmother would have B

Court:             And I would also not be able to give him a standard
possession order.

Mark=s Counsel:        Correct, your Honor.



(emphasis added).  Thus, it appears the trial court acted under the mistaken
impression that an order appointing non-parents as joint managing
conservators must be supported by a finding that the child=s physical health
or emotional development would be impaired if the parent were awarded
sole managing conservatorship.  But as discussed supra, such a finding is
not required to modify a conservatorship order.  And in any event, such a
finding must be supported by sufficient evidence to overcome the statutory
presumption in favor of a standard possession order.

On this record, and in light of the statutory presumption, we conclude that
the trial court abused its discretion by ordering that Mark=s visitation be
supervised.  We therefore sustain Mark=s fourth issue.  We reform the trial
court=s order to remove the requirement of supervised visitation.

IV.  Conclusion



We have determined that the trial court did not abuse its discretion in
appointing Mark and the Grandparents as Camille=s joint managing
conservators in this modification proceeding.  Furthermore, Mark has not
demonstrated that the application of the Texas modification statutes violates
his due process rights.  Thus, we overrule his first, second, and third
issues.  But we agree that the trial court erred in requiring that Mark=s
visitation with Camille be supervised.  Accordingly, we sustain his fourth
issue and modify the trial court=s order to remove the supervised visitation
requirement.  We affirm the trial court=s order as modified.









/s/        Eva M. Guzman

Justice









Judgment rendered and Majority and Concurring Opinions filed October 30,
2007.

Panel consists of Justices Frost, Seymore, and Guzman (Frost, J.
Concurring).



--------------------------------------------------------------------------------

[1]  We refer to the parties by fictitious names to protect the identity of the
minor child.  Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2002).

[2]  The parties did not include a copy of the prior order in the record on
appeal.

[3]  We will refer to Camille=s step-grandfather as AGrandfather@ for ease
of reference and to distinguish him from Camille=s father of the same name.

[4]  Camille was over twelve years old at the time.

[5]  See Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006) (governing
suits for possession or access by a grandparent).

[6]  In the order, the trial court found Athat the material allegations in the
petition to modify are true and that the requested modification is in the best
interest of the child.@  (emphasis added).   

[7]  Unless otherwise limited by court order, a parent who is the sole
managing conservator has the exclusive right to designate the primary
residence of the child.  Tex. Fam. Code Ann. ' 153.132(1) (Vernon 2002).  
The rights to primary possession and to determine the child=s primary
residence are Acore rights of managing conservatorship[.]@ Phillips v.
Beaber, 995 S.W.2d 655, 660 (Tex. 1999).  

[8]  This statute is subject to section 153.004, which concerns a parent=s
history of committing  acts of domestic violence, child neglect, physical
abuse, or sexual abuse.  Tex. Fam. Code Ann. ' 153.004.  No such history
has been alleged here.

[9]  The trial court maintained continuing exclusive jurisdiction after the
mother=s death.  See Fleming v. Easton, 998 S.W.2d 252, 255 (Tex. App.
CDallas 1999, no pet.); Dohrn v. Delgado, 941 S.W.2d 244, 248 (Tex. App.
CCorpus Christi 1996, no writ); Lewis v. McCoy, 747 S.W.2d 48, 50 (Tex.
App.CEl Paso 1988, no writ).

[10]  See In re SSJ-J, 153 S.W.3d 132, 134B38 (Tex. App.CSan Antonio
2004, no pet.) (discussing history of section 102.003(a)(11) and concluding
that upon the death of the child=s mother, who was a joint managing
conservator with the right to establish the child=s primary residence, the
child=s maternal grandmother and step-grandfather had standing to bring
an original suit seeking conservatorship, but were required to overcome the
parental presumption).

[11]  In Troxel, a plurality of the United States Supreme Court stated that
Washington=s Abreathtakingly broad@ nonparental visitation statute was
unconstitutional as applied because the statute accorded no weight to the
visitation decisions of fit custodial parents, and because the Washington
court refused to construe the statute narrowly but instead presumed that
grandparent visitation would be in a child=s best interest.  530 U.S. at
67B72, 120 S. Ct. at 2060B63.  The underlying lawsuit in Troxel was an
original proceeding concerning visitation, not a modification suit concerning
conservatorship.  The plurality did not specify a burden of proof for
modification statutes in that opinion.

[12]  In re Mays-Hooper, 189 S.W.3d 777 (2006) (per curiam) (following
Troxel in granting mandamus relief directing the trial court to vacate an
order under section 153.432 of the Family Code, which governs
grandparent visitation).  

Although Mays-Hooper is inapposite, the Second Court of Appeals has
applied Troxel=s due process analysis to a conservatorship dispute between
a parent and a non-parent  and determined that the Texas modification
statutes were not unconstitutional as applied.  See In re M.N.G., 113 S.W.3d
27, 31B35 (Tex. App.CFort Worth 2003, no pet.).  After A[c]onsidering the
Texas modification statute in light of the policy considerations behind it, as
well as the case law concerning the statutorily required elements,@ the
court concluded that Athe Texas statute is not too vague or overbroad to
protect [the father=s] constitutional due process rights.@  Id. at 35.

[13]  See generally David F. Johnson, In re V.L.K. v. Troxel:  Is the ABest
Interest@ Standard in a Motion to Modify the Sole Managing Conservator
Subject to a Due Process or Due Course Challenge?, 34 St. Mary=s L.J.
623, 638B39 (2003) (discussing the possibility that the modification statute
could be unconstitutionally applied in certain circumstances).  It is not our
role, however, to Asecond-guess the policy choices that inform our statutes .
. . .@  McIntyre v. Ramirez, 109 S.W.3d 741, 748 (Tex. 2003).

[14]  Specifically, Mark asserts:

There is no evidence in the record that [he] is unfit to care for and raise his
daughter.  To the contrary[,] all the evidence showed that he had done so
for twelve [] years and is capable of doing so now.  Appellant objects to
Findings of Fact nos. 4, 5, 6 . . . .

* * *

None of the testimony is supportive of finding that [Mark] is in any way
detrimental to his daughter=s physical or emotional development or that her
living with him would be detrimental to his daughter=s physical or emotional
development.

The challenged findings of fact are as follows:

       4.         It is the best interest of the child that [Grandmother],
[Grandfather,] and [Mark] be appointed joint managing conservators of the
child and that [Grandmother and Grandfather] have the right to designate
the child=s primary residence.

5.         The child the subject of this suit is over the age of 12 years and has
executed a choice preference as provided in section 153.008 of the Texas
Family Code stating in writing her preference that the Petitioners have the
right to establish the primary residence of the child.  The Court finds the
choice is consistent with the best interest of the child.

6.         The Court also finds that the appointment of [Mark] as the joint
managing conservator with the right to establish the primary residence of
the child would significantly impair the child=s physical health or emotional
development.  The court finds that determination is in the best interest of the
child.



[15]  Some of these factors are not at issue here.  For example, neither
party cites any acts or omissions of Mark that may indicate the existing
parent-child relationship is improper; thus factors (8) and (9) are
inapplicable.

[16]  Although located in Chapter 153, the application of this statute is not
limited to original proceedings, but governs parental possession generally.  
See, e.g., In re B.N.F., 120 S.W.3d 873, (Tex. App.CFort Worth 2003, no
pet.).


C O N C U R R I N G  O P I N I O N BY JUSTICE FROST


The United States Supreme Court has concluded in a line of cases that, under
the Due Process Clause of the Fourteenth Amendment, parents have a
fundamental right to make decisions concerning the care, custody, and control
of their children.[1]  The Texas Supreme Court likewise has held that "the
natural right which exists between parents and their children is one of
constitutional dimensions."[2]  It used to be that in a contest between a fit parent
and non-parents, the fit parent would prevail.  See State v. Deaton, 93 Tex. 243,
54 S.W. 901, 903 (Tex. 1900).  That is no longer the case.  Under the Texas
Family Code, a trial court is authorized to deprive a fit parent of the exclusive
right to parent his own child and instead place fundamental parental rights in the
hands of non-parents, to the exclusion of the fit parent.  Though the result the
court reaches today is correct under existing law, this case raises serious
questions about the fundamental rights of fit parents to make decisions
concerning the care, custody, and control of their own children.

Consistent with the constitutional rights of fit parents, the Texas Legislature, for
the  most part, gives fit parents priority over non-parents in matters relating to
the parents= children.  For example, except as to parents with a history of
domestic violence, the Legislature, in the Texas Family Code, requires that the
trial court appoint a parent as managing conservator in an original
conservatorship suit, unless the court Afinds that appointment of the parent or
parents would not be in the best interest of the child because the appointment
would significantly impair the child=s physical health or emotional development.@
[3]  Though grandparents are given standing to file an original suit seeking to be
appointed managing conservators of a child, they must show satisfactory proof
that Athe order requested is necessary because the child=s present
circumstances would significantly impair the child=s physical health or emotional
development.@[4]  Likewise, though the trial court may grant a person deemed
by the court to have had substantial past contact with the child leave to
intervene in a pending suit filed by a person authorized to do so, there must be
satisfactory proof that Aappointment of a parent as a sole managing conservator
or both parents as joint managing conservators would significantly impair the
child=s physical health or emotional development.@[5]  Similarly, the trial court
is authorized to order reasonable possession of or access to a grandchild by a
grandparent only if, among other things, the grandparent Aovercomes the
presumption that a parent acts in the best interest of the parent=s child by
proving by a preponderance of the evidence that denial of possession of or
access to the child would significantly impair the child=s physical health or
emotional well‑being.@[6]  This strong statutory preference favoring parents,
known as the Aparental presumption,@ is a powerful force in a conservatorship
proceeding.  Without it, a fit parent is on equal footing with non-parents vis-à-vis
the conservatorship of the parent=s children.  

Although our lawmakers have adopted a general approach of giving fit parents
priority over non-parents for matters relating to the parents= children, they have
not done so in all cases.  In cases such as the one now under review, our
lawmakers have chosen to deprive fit parents of the parental presumption,
effectively placing them on a par with non-parents in a contest over
conservatorship of the parents= children.

In this case, the petitioners (collectively ANon-Parents@) filed an original suit
seeking their appointment as primary managing conservators of Camille[7]
rather than the child=s fit parent (AParent@).  The Legislature explicitly allows
non-parents to do so when they are people Awith whom the child and the child=s
. . . managing conservator . . . or parent have resided for at least six months
ending not more than 90 days preceding the date of the filing of the petition if
the child=s . . . managing conservator . . . or parent is deceased at the time of
the filing of the petition.@[8]  This statutory regime makes sense in an original
action, because the non-parents would have to overcome the strong parental
presumption before they could be appointed managing conservators.[9]  But, in
a modification suit, a parent is not given the benefit of the parental
presumptionCeven in a contest with non-parents.  Consequently, the trial court
can modify a conservatorship order based only upon its determination that
Amodification would be in the best interest of the child and (1) the circumstances
of the child, a conservator, or other party affected by the order have materially
and substantially changed . . . [or] (2) the child is at least 12 years of age and
has filed with the court, in writing, the name of the person who is the child=s
preference to have the exclusive right to designate the primary residence of the
child.@[10]  In this case, the child filed with the court a document reflecting her
preference that the Non-Parents have the exclusive right to designate her
primary residence.  Therefore, without applying the parental presumption and
without determining that the child=s only living parent is unfit, the trial court could
appoint non-parents as managing conservators with the exclusive right to
determine the child=s residence based solely on a Abest interests of the child@
determination, an inquiry that traditionally did not even come into play where a fit
parent was concerned.  In this way, the Texas Family Code allows non-parents
to usurp fundamental parental rights from a fit parent.  



By allowing the appointment of non-parents as primary managing conservators
instead of the only surviving parent, who has never been shown to be unfit, the
Texas Legislature has permitted surviving parents= fundamental constitutional
rights ­C  rights Afar more precious than any property right@[11] ­C to be
defeated without requiring the non-parents to overcome the parental
presumption.  Under the Texas Family Code, even parents whose fitness is
unquestioned may be deprived of the exclusive right to rear their children
following the death of the child=s other parent.  Trial courts are permitted to
endow non-parents with the fundamental decision-making power over where the
child will live and where the child will go to school.  By allowing non-parents to
assert a modification action in this context, the Legislature has sanctioned this
result as long as the trial court finds that it is in the child=s best interest and as
long as the child states that she wants the non-parents to determine where she
lives.

In 1995 our lawmakers enacted a statute providing that any person who has
standing to file an original suit also has standing to file a modification action.[12]  
Therefore, without explicitly listing them, the Legislature incorporated by
reference the fourteen categories of people or entities who have standing to file
original suits and stated that these parties also may file modification actions.  
Under the unambiguous language enacted by the Legislature in 1995, the Non-
Parents could seek to modify the prior conservatorship order so that they could
be appointed as primary conservators because they are people Awith whom the
child and the child=s . . . managing conservator . . . or parent have resided for at
least six months ending not more than 90 days preceding the date of the filing of
the petition if the child=s . . . managing conservator . . . or parent is deceased at
the time of the filing of the petition.@[13]



Under this statutory language, a non-parent with whom a deceased parent has
lived for six months can become the primary joint managing conservator in lieu
of the surviving fit parent, based solely on the stated preference of a twelve-
year-old child and a finding by the trial court that such an arrangement is in the
child=s best interest.  Some have suggested that, in an as-applied context, the
Texas Family Code violates the substantive due process rights of the fit parent.
[14]  However, the plurality in Troxel v. Granville expressly declined to define the
scope of the parental substantive due process right to which it referred in the
context of the grandparent-access statute at issue in that case.[15]  
Furthermore, prior to the trial court=s original order on the petition to modify, the
Parent did not request to be appointed primary or sole managing conservator,
and he never asserted pleadings seeking this relief.  Existing precedent from the
United States Supreme Court suggests that in this context the Parent=s
substantive due process rights were sufficiently protected by the trial court=s
Abest interests of the child@ determination.[16]  Research has not revealed any
precedent from the United States Supreme Court, the Texas Supreme Court, or
this court holding that substantive due process requires that the Parent be
proved unfit or that the parental presumption be rebutted under the
circumstances of this case.  For these  reasons, there is no merit in the
Parent=s as-applied challenge to the constitutionality of the relevant provisions
of the Texas Family Code.  



More than a century ago, in another contest between a fit parent and non-
parents over a child, the Texas Supreme Court addressed the tension between
the rights of a fit parent and the desire for stability for the child who had been
living for an extended time with two non-parents.[17]  Our high court, reaching a
result different than would be permitted under the current Texas Family Code,
stated that, whatever the form of the proceeding, courts would interfere with
parents= rights to custody of their minor children Awith great caution, and with a
deep sense of responsibility.@ State v. Deaton, 93 Tex. 243, 54 S.W. 901, 903
(Tex. 1900).  The Texas Supreme Court held that Ain the absence of any
positive disqualification of the [parent] for the proper discharge of his parental
duties, he has, as it seems to us, a paramount right to the custody of his [child],
which no court is at liberty to disregard.@  Id.  

Under the former paradigm, fit parents were allowed to parent their own
children.  As long as the parent was not unfit, the courts did not interfere. A fit
parent was presumed to act in his child=s best interest, so if non-parents sought
rights over the fit parent=s child, there was no need for an analysis of the Holley
factors.[18]  Likewise, in a contest between a fit parent and non-parents, the
desires of a twelve-year old would not be sufficient to overcome the Aparamount
right@ of the fit parent to custody of the child.  See id. Under our current
statutory scheme, if the child of a fit parent would rather live with a non-parent,
the trial court canC and in this case didChonor the child=s wishes.  As a result,
the Parent=s child is living with the Non-Parents and they have been awarded
the exclusive right to make important decisions in the child=s life.



Clearly, this paradigm shift has adversely impacted the ability of fit parents to
make decisions concerning the care, custody, and control of their own children.
Under the unambiguous statutes, the Non-Parents were allowed to file a petition
to modify, and the trial court had the statutory authority to appoint them as
primary managing conservators and grant them rights to the exclusion of the
Parent, without application of the parental presumption or evidence rebutting it,
and without any showing that the child=s only living parent was unfit.  Whether or
not our lawmakers actually envisioned such a result when they enacted the
relevant statutes, this court must enforce the unambiguous statutory language
as written.[19] For these reasons, I respectfully concur in the court=s judgment.
[20]











/s/      Kem Thompson Frost

Justice







Judgment rendered and Majority and Concurring Opinions filed October 30,
2007.

Panel consists of Justices Frost, Seymore, and Guzman. (Guzman, J., majority).



--------------------------------------------------------------------------------

[1]   See Troxel v. Granville, 530 U.S. 57, 65B66, 120 S. Ct. 2054, 2060, 147 L.
Ed. 2d 49 (2000) (plurality op.) (collecting cases and concluding that Ait cannot
now be doubted that the Due Process Clause of the Fourteenth Amendment
protects the fundamental right of parents to make decisions concerning the
care, custody, and control of their children); Stanley v. Illinois, 405 U.S. 645,
651, 92 S. Ct. 1208, 1212, 31 L. Ed. 2d 551 (1972) (stating that Athe rights to
conceive and to raise one=s children have been deemed >essential,= >basic
civil rights of man,= and >rights far more precious . . . than property rights=@)
(citations omitted);  Prince v. Massachusetts, 321 U. S. 158, 166, 64 S. Ct. 438,
442, 88 L. Ed. 2d 645 (1944) (stating that Ait is cardinal with us that the custody,
care, and nurture of the child reside first in the parents, whose primary function
and freedom include preparation for obligations the state can neither supply nor
hinder@).  

[2]  Southwestern Bell Telephone Co. v. Garza, 164 S.W.3d 607, 622 (Tex.
2004).

[3]  Tex. Fam. Code Ann. ' 153.131 (Vernon 2002).

[4]  Tex. Fam. Code Ann. ' 102.004(a) (Vernon Supp. 2006).

[5]  Tex. Fam. Code Ann. ' 102.004(b) (Vernon Supp. 2006).

[6]  Tex. Fam. Code Ann. ' 153.433 (Vernon Supp. 2006).

[7]  Camille is the fictitious name used by the majority for the Parent=s child.

[8]  Tex. Fam. Code Ann. ' 102.003(11) (Vernon Supp. 2006).

[9]  Tex. Fam. Code Ann. ' 153.131.

[10]  Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2006); In re V.L.K., 24 S.W.
3d 338, 342B43 (Tex. 2000).

[11]  Stanley, 405 U.S. at 651, 92 S. Ct. at 1212.

[12]  See Act of April 6, 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws
113, 172 (current version at Tex. Fam. Code Ann. ' 153.002).

[13]  Tex. Fam. Code Ann. '' 102.003(11), 156.002(b).

[14]  See, e.g., David F. Johnson, In re V.L.K. v. Troxel:  Is the ABest Interest@
Standard in a Motion to Modify the Sole Managing Conservator Subject to a Due
Process or Due Course Challenge?, 34 St. Mary=s L.J. 623, 639-49 (2003).

[15]  See Troxel, 530 U.S. at 73, 120 S. Ct. at 2064.

[16]  See Quilloin v. Walcott, 434 U.S. 246, 252B56, 98 S. Ct. 549, 553B55, 54
L. Ed. 2d 511 (1978) (holding that due process rights of father were sufficiently
protected by trial court=s Abest interest of the child@ determination, even
though there was no showing that he was an Aunfit parent,@ where he did not
seek to legitimatize the child for the first eleven years of the child=s life and
where father had a relationship with the child but had never had custody of the
child).

[17]  The child of the fit parent had resided in the home of non-parents for four
years (from the time the child was two years old until trial, when the child was six
years old).

[18]  See Holley v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976) (listing a range
of factors that courts consider in determining the best interest of the child,
including (1) the desires of the child; (2) the emotional and physical needs of the
child now and in the future; (3) the emotional and physical danger to the child
now and in the future; (4) the parental abilities of the individuals seeking
custody; (5) the programs available to assist these individuals to promote the
best interest of the child; (6) the plans for the child by these individuals or by the
agency seeking custody; (7) the stability of the home or proposed placement;
(8) the acts or omissions of the parent, which may indicate that the existing
parent-child relationship is not a proper one; and (9) any excuse for the acts or
omissions of the parent).





[19]  See Lee v. City of Houston, 807 S.W.2d 290, 293 (Tex. 1991).  

[20]  The court correctly modifies the trial court=s order because of the trial
court=s error in issuing a supervised possession order rather than a standard
possession order as to the Parent.  
In Interest of C.A.M.M. (Tex.App.- Houston [14th Dist] Oct. 30, 2007)(Guzman)
AFFIRMED AS MODIFIED: Opinion by Justice Guzman
Before Justices Frost, Seymore and Guzman
14-06-00279-CV In the Interest of C.A.M.M.
Appeal from 310th District Court of Harris County (Hon. Lisa A. Millard)
Concurring Opinion by Justice Frost in In Interest of CAMM