In the first five points of error, appellant asserts the trial court abused its
discretion in modifying its prior order because the evidence is factually insufficient to support the
trial court's findings. In the sixth point of error, appellant asserts the trial court incorrectly
focused on the interest of Mother in determining the child's best interest.
sole issue to be determined in this appeal is whether the trial court
abused its discretion in modifying its previous order. Appellant's complaints concerning the sufficiency of
the evidence are not independent grounds for relief, but are merely factors to consider in
determining whether the trial court abused its discretion in modifying its prior order.
In this case, the trial court found grounds for modification both because of a
change in circumstances and because the order had become unworkable and inappropriate.
Either one of these findings will support modification under section 156.301. See Tex. Fam.
Code Ann. § 156.301 (Vernon 1996). In light of Alfano's lack of a biological relationship with
Bianca, and viewing the record as a whole, we conclude the trial court did not abuse its
discretion in finding its prior order has become inappropriate and unworkable.
When the trial court entered the prior order, it expressly informed Alfano that
its goal was to put him in the background as a “favorite uncle.” The trial court further
cautioned Alfano that he would have to accept he is not the child's father. Despite the trial
court's prior warning, Alfano has displayed an unwillingness to accept the role the trial court was
attempting to foster by its order, as evidenced by his conduct at Bianca's kindergarten
graduation. Indeed, Alfano spent much of his energy at trial attempting to show he was, in
effect, the child's father. In light of the purpose of the trial court's order, which was to allow
Alfano to relate to the child as an “uncle,” and Alfano's steadfast refusal to honor that role, we
cannot conclude the trial court's finding that the prior order has become unworkable and
inappropriate is so against the overwhelming weight of the evidence as to be clearly wrong and
now turn to whether the evidence is factually sufficient to support the
trial court's finding that modification would be in the child's best interest. To show the trial court's
finding is against the great weight and preponderance of the evidence, appellant relies on
evidence that he is Bianca's “psychological father” and that cessation of contact with him
would be harmful to her. However, there was also evidence that the extreme conflict between
the parties was harmful to Bianca and caused her considerable distress. Expert testimony was
presented that terminating Alfano's visitation would be in the child's best interest because of this
conflict. Further, there was evidence that Alfano's significance in the child's life has lessened since
the prior order and she has attached to a new father figure who wishes to adopt her.
Furthermore, now that Bianca is older, she has, understandably, begun to question why Alfano
has visitation. Bianca has required counseling because of the situation. After reviewing all the
evidence, we cannot conclude the trial court's finding is so against the overwhelming weight of
the evidence as to be clearly wrong and unjust.
reaching our conclusion, we reject appellant's assertion the trial
court should have attempted other alternatives, like counseling, before modifying its prior order. Appellant
cites us to no authority for the proposition that the trial court must attempt lesser alternatives to
accomplish the child's best interest before modification. We conclude no such requirement exists
where, as here, an order is modified to eliminate a nonparent's right to possession of and access
to a child.
also reject appellant's assertion the trial court's consideration of
the conflict between the parties showed the trial court elevated the parties' interests over that of the child.
The parties desires, acts, and claims are material to the trial court's determination to the extent
they bear upon the child's best interest. See Bukovich v. Bukovich, 399 S.W.2d 528, 529
(Tex. 1966). In this case, the trial court found modification would be in the child's best interest
because the conflict was harmful to the child. Contrary to appellant's assertion, the trial court
did not improperly focus on the interests of the parties. After reviewing the entire record, we
conclude the evidence is factually sufficient to support the trial court's findings. Appellant has not
shown the trial court abused its discretion in modifying its order. We overrule appellant's six
points of error. We affirm the trial court's order.
MICHAEL J. O'NEILL
Do Not Publish
Tex. R. App. P. 47