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Click here for the full text of this decision FACTS:Adam Rene Sotelo, a father, and Lorie Eileen Gonzales, a mother, had a child together. They were not married and did not live together or in the same town. They were named joint managing conservators of the child and the mother was given the exclusive right to establish the primary residence of the child. The father later filed a motion to modify the parent-child relationship to give him more control over the child’s primary residence. The maternal grandmother intervened seeking managing conservatorship, possessory conservatorship, or reasonable access. The trial court appointed the grandmother as the temporary sole managing conservator. The parents were appointed temporary possessory conservators. The trial court found that appointment of a parent as sole managing conservator would not be in the best interests of the child because it would significantly impair his physical health or emotional development. The father appealed. HOLDING:Affirmed. In his sole point of error on appeal, the father challenges the sufficiency of the evidence to defeat the parental presumption. But the court points out that the presumption does not apply in a modification proceeding and reframes the issue for review as one challenging the sufficiency of the evidence to meet the statutory requirements for modification. The court notes that an order that provides for the appointment of a conservator of a child, that provides the terms and conditions of conservatorship, or that provides for the possession of or access to a child, may be modified if modification would be in the best interest of the child and the circumstances of the child, a conservator or other party affected by the order have materially and substantially changed since the date of the rendition of the order. Therefore, the court states, to prevail, the grandmother had to establish that it was in the child’s best interest that she be appointed as a managing conservator with the exclusive right to determine the child’s primary residence. The court reviews the evidence presented at trial and finds that it is both legally and factually sufficient to establish that modification was in the child’s best interest. The father allegedly offered to sell a witness cocaine on one occasion. The father had no involvement in Adam’s daily school routine. The child told his classmates that he wanted to be just like his father and go to bars and get drunk. The child also had pretended to sniff cocaine after attending a party with his father and the father had allegedly used cocaine around the child. He had deliberately violated court orders on two separate occasions, necessitating court intervention and causing the child to miss school. The court acknowledges that the evidence shows that the father frequently exercised his visitation and was perceived to be a good father by friends and family. And while the social worker suggested that the child live with his father, there was evidence that the child’s visits with the father resulted in disruptive or uncharacteristic behavior. The court holds that it was the responsibility of the trial court to determine the weight to be given to testimony and to resolve any conflicts. Because there is sufficient evidence of a substantive and probative character to support the appointment of the grandmother as a joint managing conservator with the exclusive right to determine residency, the court concludes that the trial court’s ruling was neither arbitrary nor unreasonable. OPINION:McClure, J., Barajas, C.J., McClure and Chew, JJ.

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