in the Interest of L. M. M. and S. D. M. ( 2005 )


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  •        TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
    NO. 03-04-00452-CV
    In the Interest of L. M. M. and S. D. M.
    FROM THE DISTRICT COURT OF WILLIAMSON COUNTY, 395TH JUDICIAL DISTRICT
    NO. 01-1272-F395, HONORABLE MICHAEL JERGINS, JUDGE PRESIDING
    CONCURRING OPINION
    For all the reasons discussed in my concurring opinion in In re J.R.D., No. 03-04-
    00311-CV, 2005 Tex. App. LEXIS 5503 (Tex. App.—Austin July 17, 2005, no pet. h.) (Puryear, J.,
    concurring), I write separately to concur in the judgment of the Court.
    Appellant Moe challenges the trial court’s order denying her motion to be named sole
    managing conservator of the children and limiting her parental rights by granting her less than the
    standard possession order set out in family code sections 153.311 et seq. Moe asserts that the trial
    court erred in conditioning her periods of possession and access to her children upon the
    recommendations of therapists.1 The trial court found by a preponderance of the evidence that
    maintaining Malmquist as joint managing conservator with the right to determine the children’s
    primary residence and placing limits and conditions on Moe’s rights of possession and access were
    1
    Moe also challenges the trial court’s award of attorney’s fees against her, as do her parents.
    Because I agree with the majority’s disposition of that issue in all respects, I do not write separately
    regarding it. I also agree with the majority’s vacating the October 2004 order and do not write
    separately regarding it.
    not injurious to the children and that Moe’s appointment as sole managing conservator should be
    denied. See Eason v. Eason, 
    860 S.W.2d 187
    , 190 (Tex. App.—Houston [14th Dist.] 1993, no writ).
    Moe argues that the denial of her request to be named sole managing conservator and the limitations
    placed upon her rights to possession and access were each an abuse of discretion. The majority
    affirms the trial court’s ruling placing limits upon Moe’s parental rights, holding that the trial court
    did not abuse its discretion because there was some substantive and probative evidence existing to
    support the order. See Echols v. Olivarez, 
    85 S.W.3d 475
    , 477 (Tex. App.—Austin 2002, no pet.);
    see also Gillespie v. Gillespie, 
    644 S.W.2d 449
    , 451 (Tex. 1982).
    Because I believe that the current standards of proof and review applied by Texas
    courts are inconsistent with the constitutional nature2 and importance of the rights at issue and our
    legislature’s stated policy and directives, I would review this order under a heightened standard. See
    Troxel v. Granville, 
    530 U.S. 57
    , 65 (2000) (fundamental liberty interest of parents in relationship
    with children is constitutionally protected); Stanley v. Illinois, 
    405 U.S. 645
    , 651 (1972) (parent’s
    interest in care, custody, and management of children paramount and due greater respect than
    liberties derived from mere shifting economic arrangements); Tex. Fam. Code Ann. § 153.193 (West
    2
    I strongly disagree with the majority’s assertion that, because the court did not intend to
    completely deny Moe’s rights of possession and access, but only to place reasonable limitations on
    those rights, Moe’s constitutional rights were not implicated. If this were the case, there would have
    been no constitutional issue presented in Troxel v. Granville, where the appellant mother likewise
    was not at risk of never seeing her children again, but only of having limits placed upon her custody
    and control of her children in the form of enforceable grandparent visitation. See generally Troxel
    v. Granville, 
    530 U.S. 57
    (2000). The United States Supreme Court has opined that there is a
    fundamental, constitutional right of parents “to make decisions concerning the care, custody, and
    control of their children” that is implicated when “any decision by a parent concerning visitation of
    the parent’s children” is subjected to court review or intervention, not only when that parent might
    be prevented from ever seeing her children again. 
    Id. at 66-67.
    2
    2002) (limitations or restrictions on parent’s right to possession of or access to child “may not
    exceed those that are required to protect the best interest of the child.”). Accordingly, I would
    require the trial court’s order to be supported by clear and convincing evidence and conduct a legal
    and factual sufficiency review of that order. See J.R.D., 2005 Tex. App. LEXIS 5503, at *14
    (Puryear, J., concurring).
    I would begin from a presumption that Moe is a fit parent. See 
    Troxel, 530 U.S. at 68
    . In order to overcome that presumption and limit or condition Moe’s access to her children, I
    would require the court to find, based upon clear and convincing evidence, that the specific
    limitations it placed upon her did not exceed what was required to protect the children’s best
    interests.3 See Tex. Fam. Code Ann. §§ 153.193 (“Minimal Restriction on Parent’s Possession or
    Access”); 153.001(a) (public policy is to assure frequent and continuing contact with parents who
    have shown ability to act in best interest of child and provide a safe, stable, nonviolent for child);
    see generally J.R.D., 2005 Tex. App. LEXIS 5503 (Puryear, J., concurring). The trial court here
    found that these restrictions were necessary to protect the children’s best interests and that the
    modification Moe requested would not be in the children’s best interests.
    3
    The family code can authorize State intervention in the relationship between parents and
    children where necessary to protect the child’s best interests even though it infringes a parent’s
    liberty interest in rearing her child because the State has a countervailing parens patriae interest in
    preserving and promoting the welfare of the child. See Santosky v. Kramer, 
    455 U.S. 745
    , 766
    (1982); see also Heller v. Doe, 
    509 U.S. 312
    , 332 (1993) (citing Addington, 441, U.S. at 426 for
    proposition that “the state has a legitimate interest under its parens patriae powers in providing care
    to its citizens who are unable . . . to care for themselves”). This interest includes protecting juveniles
    from their own “folly” when parental control falters. Schall v. Martin, 
    467 U.S. 253
    , 265 (1984).
    3
    Moe argues that the trial court erred by not appointing her managing conservator with
    the right to determine the children’s primary residence because doing otherwise was not in the
    children’s best interest and by restricting her possession of and access to the children because its
    delegation of the authority to her therapist and the children’s therapist to jointly cancel any specified
    period of possession and access was an abuse of discretion. The majority affirms each of these
    rulings because each was supported by “some evidence of a substantive and probative nature.” See
    
    Echols, 85 S.W.3d at 477
    . I would also affirm the trial court’s order, but because I believe that it
    could have properly found by clear and convincing evidence that its limitations on Moe’s possession
    of and access to the children did not exceed those required to protect the children’s best interest and
    that there is legally and factually sufficient evidence supporting its findings.
    A court finding regarding children’s best interests that is required to be based upon
    clear and convincing evidence survives a legal sufficiency challenge where, in examining the
    evidence in the light most favorable to the findings and disregarding evidence a reasonable fact
    finder could have disbelieved, the appellate court determines that a reasonable fact finder could have
    formed a firm belief or conviction that the findings are correct. In re J.F.C., 
    96 S.W.3d 256
    , 265-66
    (Tex. 2002). A best interest finding survives a factual sufficiency challenge only if the evidence is
    such that a reasonable fact finder could form a firm belief or conviction that the finding is correct.
    In re C.H., 
    89 S.W.3d 17
    , 18-19 (Tex. 2002).
    Examining the evidence in the light favorable to the court’s finding that the
    limitations it placed on Moe’s possession and access were in the children’s best interest, I believe
    a reasonable fact finder could have formed a firm belief or conviction in the correctness of that
    4
    finding. There was ample testimony from several witnesses, including school personnel, family
    members, and the children’s therapist, that Moe had consistently violated court orders designed to
    protect the children’s best interests and that she had psychologically harmed both children during
    her decade-long legal campaign against their father. There was testimony that she actively
    encouraged both children to cause discipline problems for their father and that she publicly heaped
    emotional abuse upon her daughter at school and could neither control her outburst and focus upon
    her daughter rather than her anger at her ex-husband, nor comprehend that her behavior could harm
    her child. Instead of using the children’s therapist as a resource to help rehabilitate her faltering
    family, Moe habitually attempted to use her to force changes upon their father. Moe herself testified
    that, after repeated warnings and court orders to stop using her children as weapons and to protect
    them by keeping them out of the middle of their parents’ conflict, she deliberately sent her son into
    his father’s household with a tape recorder in order to gather evidence. Although she has persistently
    depicted her ex-husband as volatile and physically abusive, she claims she did not think about
    whether sending her son to secretly record household conflict would put him in any danger. In
    response to questioning about the children’s needs and welfare, Moe repeatedly answered with
    justifications of her behavior and attacks upon her ex-husband, which led the trial court to conclude
    that she did not grasp the magnitude of the damage she caused the children both directly and by
    perpetuating the constant state of family crisis. Given the evidence of Moe’s inability or refusal to
    understand or change her behavior, to separate her own needs or desires from those of the children
    and to control her anger and deal constructively with the children, it was reasonable for the court as
    5
    fact-finder to firmly believe that the gradually expanding visitation schedule conditioned upon a
    program of continued therapy by Moe was necessary to protect these children’s best interests.
    Viewing all the evidence neutrally, I would also hold that the court could reasonably
    have formed a firm conviction or belief that these limits were necessary to protect the children’s best
    interests. At trial, there was evidence that the children are very bonded to Moe and that they love
    each other. A review of the record also reveals a wealth of complaints about Malmquist, whose
    authoritarian discipline style and apparent insensitivity have also caused problems with the children.
    However, there is also evidence that Malmquist and the children love each other and that he provides
    a stable home with appropriate structure that these children need in order to succeed in school and
    in life. Considering the evidence discussed above, as well as Moe’s overall approach, her focus
    appears to have been upon what Malmquist has done wrong rather than on what she can do right for
    the children.4 There was plenty of evidence that the children needed a change; family members,
    therapists, and school personnel testified to their sliding academic performance and behavioral
    problems and the devastating effects upon the children of the chaos in their home life. While both
    parents claimed to recognize the need for change, there was evidence that Moe continued to violate
    court orders and behave conflictually, apparently in the belief that the only change that the children
    needed was to be removed from their father and that the necessity of this end justified whatever
    means by which it could be achieved. While Moe may care for the children, all the evidence taken
    4
    In fact, even her issues on appeal center upon Malmquist rather than upon her own fitness;
    she casts her issue as a challenge of the trial court’s mistake in retaining Malmquist as joint
    managing conservator rather than its denial of her motion to modify. As the majority points out,
    however, it was Moe’s burden as the moving party to show that she should be named sole
    managing conservator, not Malmquist’s to show that he should not be stripped of his status as
    joint managing conservator.
    6
    together supports the trial court’s determination that it would not be in their best interests for her to
    have unsupervised visitation with them or exercise the standard possession schedule until she
    enjoyed some success in her court-ordered therapy.
    Because I believe that there is legally and factually sufficient evidence in this case to
    justify a finding by clear and convincing evidence that the limitations the trial court placed on Moe’s
    rights of possession and access and its decision not to immediately grant her the standard possession
    order, I concur in the judgment of the Court affirming the trial court’s final order.
    __________________________________________
    David Puryear, Justice
    Before Chief Justice Law, Justices Patterson and Puryear
    Filed: August 31, 2005
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