in the Interest of N.L.M.-B., a Child, 07-17-00131-CV

In July 2015 the trial court appointed the Texas Department of Protective and Regulatory Services (the Department) as permanent sole managing conservator of N.L.M.-B; father D.B. was named possessory conservator.
The child had been removed in 2012 for the mother’s neglect and drug use; the maternal grandfather (J.M.) cared for the child and later sought permanent managing conservatorship.
D.B. was incarcerated beginning October 30, 2013, serving a five-year sentence during the pendency of the original case.
Seven months after the 2015 order the Department filed to modify conservatorship, alleging material and substantial changes; D.B. counter-petitioned expressly alleging that circumstances had materially and substantially changed.
A jury trial resulted in a verdict appointing J.M. as permanent sole managing conservator and retaining D.B. as possessory conservator; the trial court entered an order reflecting the verdict.
On appeal D.B. challenged only the sufficiency of the evidence to show a material and substantial change; he did not challenge the jury’s best-interest finding.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether evidence sufficed to show a material and substantial change in circumstances since the 2015 order	Department: evidence at trial showed changed circumstances supporting modification	D.B.: challenged sufficiency of the evidence for material and substantial change	Court: D.B. judicially admitted the element in his counter-petition; issue overruled

City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) (legal-sufficiency standard and evidence review principles)
In re N.R.T., 338 S.W.3d 667 (Tex. App.—Amarillo 2011) (no fixed guidelines for what constitutes a material and substantial change)
Agraz v. Carnley, 143 S.W.3d 547 (Tex. App.—Dallas 2004) (burden on party seeking modification to prove material and substantial change)
Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.—Austin 2006) (comparison of circumstances at original order and at modification hearing)
In re A.L.H., 515 S.W.3d 60 (Tex. App.—Houston [14th Dist.] 2017) (standards for reviewing jury findings in conservatorship cases)
Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) (trial court’s discretion to modify conservatorship)
Downer v. Aquamarine Operators, 701 S.W.2d 238 (Tex. 1985) (abuse-of-discretion review principles)
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562 (Tex. 2001) (pleadings can constitute judicial admissions)
Maritime Overseas Corp. v. Ellis, 971 S.W.2d 402 (Tex. 1998) (appellate courts do not substitute their judgment for factfinder’s)