in the Interest of A.R., a Child ( 2007 )

AFFIRM and Opinion Filed August 15, 2007
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In The
79 S.W.3d 48, 52 (Tex.2002). We can only
4 Mother filed separate notices of appeal both of which are considered under this cause number.
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find an abuse of discretion if the trial court "acts in an arbitrary or capricious manner without
reference to any guiding rules or principles." Bocquet v. Herring, 912 S.W.2d 19, 21 (Tex.1998).
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-The court~s deCision must lie ''so arbitrary-and-imreasoiiaofe aS-toamcnmt to aClear and prejudiciif
error oflaw." BMC Software Be/g. NV. v. March/and, 83 S.W.3d 789, 801 (Tex. 2002).
ill. APPLICABLE LAW
The Imposition o(Bond
Mother's supervised access to the child was conditioned on court-ordered counseling and
therapy sessions and posting a $50,000 bond. In her first issue, mother argues these restrictions
impair her right to possession and constitute a de facto termination of her parental rights. We
disagree.
The crux of mother's argument is because the $50,000 bond exceeds her ability to pay it is
so burdensome it constitutes a termination ofher parental rights. In support of her argument, mother
points to the fact that she filed an affidavit of indigence and a motion for a free appellate record.
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( Mother fails to mention, however, the pauper's affidavit was contested. After a hearing, the court
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determined mother failed to meet her burden of proof. The evidence presented at the hearing does
not appear in this record. But the record does contain the court order sustaining the contest and
finding mother is not entitled to appeal without making full payment for the clerk's record and all
other costs. There is no other evidence in the record to support mother's claim she is without the
means to post the bond, nor was the issue brought to the trial court's attention in any ofher post-trial
motions. Because there is no evidence mother was unable to post the bond, we find her argument
concerning de facto termination unpersuasive. Therefore, we turn to the question of whether the
court's order constitutes an abuse of discretion.
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A court can limit a parent's rights of possession if it is in the best interests of a child. TEx.
FAM. CODE ANN.§ 153.072 (Vernon 2006). The ?Ourt may also condition access on a bond, and is
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empowered to set the amount·and-conditions:-TEX~ F AM: CODE ANN: § 153.0 ll {Vernon 2006). In ·
this regard, the Texas Family Code provides:
If the court finds that a person who has a possessory interest in a child may violate
the court order relating to the interest, the court may order the party to execute a
bond or deposit security. The court shall set the amount and condition the bond or
security on compliance with the order.
!d. TEX. FAM. CODE ANN.§ 153.502 (Vernon 2006) sets forth certain factors a court may consider
to determine whether there is a risk of international abduction by a parent of the child. Although the
court did not specifically find there was a risk the child would be removed from the country, the
statutory factors concerning international abduction are instructive to the overall abduction analysis.
Some of the factors courts consider include evidence that the parent:
(1) has taken, enticed away, kept, withheld, or concealed a child in violation of
another person's right of possession or of access to the child ... ;
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c (3) lacks financial reason to stay in the United States, including evidence that the
parent is financially independent, is able to work outside the U.S., or is unemployed;
( 6) has a criminal history or a history of violating court orders.
See !d. (emphasis added). The court found all of the foregoing factors present here. When mother
met father, she was working as a waitress in a topless bar, but she was unable to hold a full-time job
throughout the marriage. Mother is not currently employed. Mother owns no property in Dallas
county. Mother's apartment, car and living expenses are provided by her family. The record does
not reflect the amount of income accessible to mother, but she was able to borrow $50,000 from her
parents to retain Ducote.
There was also considerable evidence to support the court's conclusion on the likelihood
that mother would violate court orders. Mother violated the court's possession order on more than
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one occasion, and was cited for contempt. Mother was also cited for contempt for violation of the
court's order concerning child support. In addition, throughout the litigation mother demonstrated
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-· -- - a flagrant disregard for the court, s ruiesffi:t"d orefel-s: MotherrefuSed. to comply with -discovery ord``- _-
She refused to attend court-ordered therapy._ Although the court ordered the parties not to discuss
the allegations of abuse with the child, mother not only continued the discussions but made
videotapes in which she coached and encouraged the child to discuss the alleged abuse. Mother was
eventually ordered not to go within a certain distance of the child. Despite the court's order, mother
went to the child's counselor's office when the child was there. On two occasions, mother appeared
on the doorstep of father's residence ~hen she knew the child was there. During the trial, the court
was frequently required to admonish mother because she refused to obey court rules and
instructions. At one point, the jury was excused and the court warned mother she was in direct
contempt of court because she had demonstrated total disregard and disrespect for the court's rules
~d orders. Mother's testimony is indicative of her overall attitude toward court orders and the
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\. judicial process. For example, when asked on cross-examination whether she had complied with the
divorce decree and placed the child's modeling income in a separate bank account, mother replied
"certainly not." Not only did mother demonstrate indifference to court rules and orders, but her
advisor Ducote demonstrated this propensity as well.
Mother's alliance with the Justice for Children organization is also a factor to consider. It
would not be unreasonable for the court to have been somewhat concerned about the influence
Ducote's organization may have on mother. The Justice for Children group was very active in the
litigation and in advising mother. Ducote was questioned about the activities ofhis organization and
involvement in the abduction of the child in another case in which a mother made allegations of
abuse. In its role as fact-finder, the trial court is the sole arbiter of a witness's -credibility and the
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weight to be given his testimony. Bellefont~ Underwriters Ins. Co. v. Brown, 704 S.W.2d 742,
744-45 (Tex.1986). Although the record does not establish the extent to which mother's behavior
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----was-directed- or-influenced -by -this- group- or- if- any- such influence-was-illiprop-er;--ihe court could:__ -
reasonably infer mother had been influe11ced by this gro_up and would contin_ue t9 be influenced_ in_
the future. Even if Ducote was not improperly advising mother, the record reflects he had a
disruptive impact on the litigation.
The evidence of mother's mental instability is also significant. The court found mother was
manipulating the child to manufacture allegations of sexual abuse. This manipulation occurred with
no appreciation for the emotional damage done to the child. Mother sexualized the child, and gave
every indication she would continue to do so. There is strong support for these findings in the
record. Dr. John Zervopoulos, a clinical and forensic psychologist appointed to test and evaluate the
family, testified concerning mother's mental health issues. Mother was previously hospitalized for
mental health problems and released herself against her doctor's advice. Mother's mother had to
obtain a restraining order against her. Dr. Zervopoulos found mother's belief concerning sexual
abuse ofthe child was not well-founded. Based on his interviews with both parents and the child,
he concluded there is insufficient evidence father engaged in inappropriate conduct. Though
numerous experts and professionals concluded there was no or insufficient evidence of father's
abuse, mother not only continues to maintain her belief that abuse occurred, but also fosters that
belief in the child. Dr. Zervopoulos expressed concerns about mother's continued belief in the
allegations and the impediment to the child's development caused by her mind-set. Based on his
evaluation, Dr. Zervopoulos opined mother would continue her course of conduct because she is
very attached to particular notions of abuse without critically examining these notions. He further
testified there is no indication mother would choose to see things differently if other more plausible
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reasons for. the child's statements were established. Dr. Zervopoulos reported mother presents
( herself as a victim, and his testing of mother indicates she has significant psychological problems.
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--The-court- furtherfouncFmo-ther-:_contin``- to believe-father·is-:_ham~hrg-the-·child:~lli:----- ~ -- _- ``-:
Zervopoulos testified mother is unable to see the child's interests as different from her own. He also .
noted mother is willing to let the child be sad because she is angry with father. Mother told the child
father was ruining her modeling career and tried to influence the child's feelings about father. Dr.
Zervopoulos stated it was difficult to view the child's statements as reliable because mother kept
reinforcing the statements, and it was likely the child was making the statements just to please
mother. Mother's ~_ub``tiated _beliefs, instability, and inability to consider the child's interest
increase the likelihood she may abduct the child.
Mother contends she has never applied for a passport, either for herself or for the child. This
is one of many factors to be considered, but it is not determinative. Mother also argues she is not
a flight risk because her visitation is to be supervised. But supervision has not inspired mother to
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·, comply with the rules in the past. At a previous visitation center, mother was reprimanded for
violating the rules by audio-taping the child. She was reprimanded again for a rules violation when
she attempted to photograph the child with her cell phone. Eventually, mother was discharged from
the facility because she refused to abide by the rules.ln addition, the risk of abduction does not only
exist during the period of supervised visitation. In the exercise of its discretion, the court could
consider that the child could be abducted from her home, school, while at play, when she attends
counseling, or en route to and from her supervised visitation with mother. Mother previously
violated the court's order with visits to the father's residence when the child was there. Mother's
pattern of behavior suggests it is not unreasonable to infer this could happen again. Moreover, one
of the many videotapes mother made of the child show mother and child role playing a situation
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where they are hiding from the father. On the tape, a statement is made to the effect that it is better
( if father does not know where the mother and child are located.
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---Mother also·clauns the-bond is burdensome becauie she-has been turned down by numerous
bqnding companies and must post the bond in ``b. There i~ no clear explan~tion ip the record why
mother's requests for a bond have been declined. These refusals undermine mother's argument she
is not a flight risk.
Mother argues the trial court should have considered "less burdensome" alternatives, such -
as putting an ankle monitor on the child. Although such alternatives may be less burdensome for
mother, the ultimate consideration is the best interest of the child. Mother fails to address how this
or any other alternatives might meet this goal.
We do not dispute the amount of the bond is significant. However, mother's behavior is
extreme. Based on our review of the record, we cannot conclude the trial court acted arbitrarily or
r unreasonably when it determined mother was a potential flight risk and ordered the posting of the
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bond.
Similarly, ordering supervised visitation was neither arbitrary nor unreasonable. The experts
opined mother's access to the child should be supervised. The trial court determined unsupervised
access would endanger the emotional welfare of the child. There is ample evidence to support the
trial court's determination that limitations on mother's possession are in the best interest of the child.
We conclude the trial court did not abuse its discretion, and resolve mother's first issue against her.
Attorney's Fees in the Nature o(Child Support
In her second issue, mother argues the trial court erred when it awarded attorney's fees in
the nature of child support. To make these claims on appeal, mother was required to present the
complaints to the trial court. See TEX. R. APP. P. 33.1; Wal-Mart Stores, Inc. v. McKenzie 997
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S. W.2d 278,280 (Tex.1999). Our review of the record reflects the issue was not raised in any motion
( or by specific objection to the trial court. At the hearing where the order awarding attorney's fees
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was- entered; ~the ~parties: irutiaily~ stipulated to~The amoillif ol- ·attorney' s·· fees~The. pcirtieiafso.
stipulated attorney's fees would not be the subject of an appeal. Mother's counsel subsequently _....
withdrew the stipulation, stating generally that he objected to both the form and content of the entire
order. The order addressed issues in addition to attorney's fees, but counsel did not specify why the
order was objectionable. The attorney's fees issue was not raised in any subsequent motions.
Accordingly, mother failed to preserve this complaint for appeal. We overrule the issue.
Withdrawal of Counsel and Continuance o(Trial
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In her third issue, mother complains the trial court erred when it granted counsel's motion
to withdraw from representing her and denied her motion for continuance. The motion to withdraw
about which mother complains was filed by Linda Risinger, who at that time, was mother's third
attorney of record. On January 11, 2006, more than thirty days prior to the February 20, 2006 trial
setting, Risinger filed the motion to withdraw. The motion stated there was good cause for
withdrawal because the attorney was unable to communicate with the client, thereby causing a
hardship in the representation, and mother refused to honor the contract concerning the payment of
fees. The motion also listed all impending deadlines, and charted the status of discovery. The motion
further stated a copy had been provided to the client with the appropriate notice. On January 26,
2006, the court conducted a hearing on the motion to withdraw. Mother appeared on her own behalf.
The trial court granted counsel's motion to withdraw and denied the continuance.
Mother asserts the motion to withdraw was not timely and violated the local rules of the
Dallas County Family Courts. Mother further asserts the court's "hearing and granting the motion
was prejudicial and an improper ruling." The local rule upon which mother's argument is premised
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provides a motion to withdraw shall not be presented withlli.thirty (30) days of the trial date. Local
Rule 9.01. The motion was filed on January 11, 2006, and heard by the court on January 26, 2006.
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whether the trial judge abused her discretion by allowing counsel to witbdr.100 S.W.3d 254, 257 .
(Tex.App.-San Antonio 2001, orig. proceeding). Subsection (b) of Disciplinary Rule 1.15 lists
specific instances when an attorney may seek to withdraw. Included among those instances are the
following:
(5) the client fails substantially to fulfill an obligation to the lawyer regarding the
lawyer's services, including an obligation to pay the lawyer's fees as agreed, and has
been given reasonable warning that the lawyer will withdraw unless the obligation
is fulfilled;
(6) the representation will result in an unreasonable financial burden on the lawyer
or has been rendered unreasonably difficult by the client; or
(7) other good cause for withdrawal exists.
Risinger's motion listed all of these reasons as good cause for her withdrawal. At the
hearing, Risinger testified mother failed to pay the fees they had agreed on in the contract mother
signed, and she had informed mother she would seek to withdraw if the fees were not paid. After
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mother had been informed of the pending withdrawal, on January I 0, 2006, Rlsinger agreed to meet
with moth~r and Ducote as a professional courtesy. Ducote and another attorney were present.
glass mirror..
Risinger further testified she received advice from mother and Ducote on an almost daily
basis. Risinger also described how mother would not cooperate, return phone calls, or respond to
e-mail messages. Mother also refused to participate in the preparation of the witness list, lining up
experts, and obtaining expert reports. Risinger testified mother directed that all expert findings had
to be sent to mother and Ducote for approval. Risinger further testified that mother constantly
refused to follow instructions or obey court orders. Although the agreement between Risinger and
mother specified Risinger would be paid a trial retainer, and Risinger repeatedly reminded mother
that she would not go to trial without the retainer, the retainer had not been paid. Risinger stated the
continued representation would work a financial hardship on her law practice and the relationship
between mother and herself was such that she could not represent mother.
Risinger's paralegal also testified. The paralegal told the court she had been present on
numerous occasions when Risinger had reminded mother about the necessity of the trial retainer.
The paralegal also testified about telephone conversations between Risinger and mother when
Risinger had to terminate the conversation because mother became overly emotional. On these
occasions, the paralegal could hear mother screaming at Risinger over the telephone.
Mother was given the opportunity to cross-examine the witnesses, but she declined. Mother
stated she did not oppose the withdrawal as long as the court would grant her a continuance to
enable her to secure other counsel. Mother also told the court she disagreed with her counsel's
testimony about discovery and her lack of cooperation. The trial judge informed mother that based
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on her experience with mother in the case, she w~ inclined to believe counsel, s version of events.
The court noted mother had a history of not obeying court orders, had her ability to present evidence
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- diminished because of her refusal to turnover discovery,-and had held up -ilie=case for many mo-~thS .
because she refused to participate in the evaluation by the court-appointed psychologist. __
There is no dispute Risinger and mother entered into a written fee agreement that set forth
mother,s obligation to pay a trial retainer_ There is also no dispute the retainer was not paid. The
record demonstrates that requiring Risinger, a sole practitioner, to continue her representation of -
mother in the upcoming trial would impose an unreasonable financial hardship. The testimony at the
hearing and the evidence in the record clearly demonstrate that Risinger, s representation of mother
had become unreasonably difficult. The restrictions placed on the attorney and mother,s refusal to
cooperate supportRisingers, establishment of good cause for her withdrawal. Consequently, the trial
court did not err when it granted the motion to withdraw. See In Re Daniels, 138 S.W.3d 31, 35
{Tex. App.-San Antonio 2004, orig. proceeding).
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Mother maintains the court erred by granting the motion to withdraw because it did not also
grant the motion for continuance. Although appellant makes the vague statement that there were
many motions for continuance, we interpret the alleged error as directed toward the motion made
prior to trial presented by mother and subsequently re-urged by counsel. According to mother, the
trial court failed to protect her valuable right to be represented by counsel. In support of her
argument, mother relies on Moss v. Malone, 880 S.W.2d 45 (Tex.App.-Tyler 1994, writ denied).
This reliance is misplaced. Moss involved a defective motion that did not comply with rule 10. Here,
the motion meets the requirements of the rule and good cause for withdrawal was shown.
Mother, s suggestion that she was abandoned and without counsel on the eve of trial is
disingenuous because mother had numerous counsel advising her throughout the litigation.
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Although not admitted to practice in the trial court, the evidence shows Ducote and his organization
had been involved in the case from an early stage; their interaction-with mother's counsel began with
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_. _wa,s pr~ent at the b~l!fing_on tbe_motion, pass_ing_n_ot~_to moth~:r:.. Burton ente_ryd an appearance on _.
mother's behalf on February 6, 2006. Attorney Richard Wright entered his appearance on mother's
behalf on the same date. After counsel formally appeared, the motion for continuance was re-urged
on the same grounds, and was also denied ..
Mother admits in her brief, and it is well-established that the determination concerning the
continuance of a trial is a matter within the discretion of the trial court. See Gen. Motors Corp. v.
Gayle, 951 S.W.2d 469, 476 (Tex. 1997) (orig. proceeding). Generally, the court should gcint a
continuance if a party has no attorney through no fault of their own. See State v. Crank, 666 S.W.2d
91,94 (Tex. 1984). But see, St. Gelais v. Jackson, 769 S.W.2d 249,254 (Tex.App.-Houston [14th
Dist.] no writ) (denial ofcontinuance not abuse of discretion when withdrawal party's fault). Mother
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I insists she is not to blame for her attorney's withdrawal, but we are not convinced. A client who fails
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to honor a lawyer's fee agreement, subjects the attorney to verbal abuse, disobeys court orders, and
refuses to follow counsel's advice should not be surprised when the lawyer seeks to terminate the
representation. Months before the motion for continuance was filed, the court warned the parties no
continuance would be granted. By the time the motion for continuance was filed, mother's
obstreperous conduct had already caused several delays in the case. The court believed prompt
resolution of the case was in the best interest of the child, and its determination was neither arbitrary
nor unreasonable. We find no abuse of discretion.
Moreover, even if the trial court had erred by not granting mother additional time to hire an
attorney, mother has not shown how the failure to grant the continuance probably caused the
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rendition of an improper judgment. See TEx. R. APP. P. 44.1(a); Bank of Texas, N.A., Trustee v.
Mexia, 135 S.W.3d 356,364 {Tex.App.-Dallas 2004, pet. denied). We resolve mother's third issue
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against her:--- - ----- -------_·_: --- -- - -- - - -------- - ----- ----
____ _____ _Hearing on the Motion to Recuse__ ___ _ __ ____ ___________ _ _ _ _ ___
In her fourth issue, mother assigns error to actions taken by the trial court after she filed
motions to recuse. The crux of mother's assertion is although the motions were forwarded to the
presiding judge, the trial court was not empowered to act because the presiding judge did not
conduct a hearing.
Mother filed her first motion to recuse on February 1, 2006, five days prior to a scheduled
hearing. The motion was not verified. Mother filed an amended motion the next day, including the
verification, but not the original motion to which the verification attested. Despite the procedural
irregularities, the motions were forwarded to the presiding judge. On February 3, the presidingjudge
entered an order denying the motions. The trial judge took no action between the time the motion
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( was filed and the entry of the order denying the motion.
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On May 5, 2006, three days before a hearing scheduled on May 8, 2006, mother filed another
motion to recuse. Again, the motion was referred to and denied by the presiding judge. The order,
signed on May 8, 2006, states the motion is untimely and lacks new meritorious grounds to warrant
a hearing.
TEX. R. Clv. P. 18a(a) provides, in pertinent part:
At least ten days before the date set for trial or other hearing ... any party may file
... a motion stating grounds why the judge before whom the case is pending should
not sit in the case ... The motion shall be verified.
When a judge is presented with a motion to recuse, he or she has only two options; recusal
or referral of the matter to the administrative presiding judge. Brosseu v. Ranzou, 28 S.W.3d 235,
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238 (Tex.App.-Beaumont 2000, no pet.). Once the motion is referred to the presidingjudge, excei>t
for good cause, the sitting judge is to "make no further orders and-. -.- . take no further action in the
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- --------case.-.. prior to-a heaii:iig on the motion." TEx. R.: CN. P: 18a(d). Failure to comply with the-rule
___ren_~ers ~y_ ``ns_tak~n _subsequent to_ the violation void. Brous_seu, 28 S.W.3d at 238. In support
of her argument that the trial court acted improperly, mother points to an exchange between counsel
and the trial court during the hearing on the motion for continuance. Mother attempted to raise the
issue of entitlement to a hearing on the motion to recuse after the presiding judge had ruled. In
response, the court stated: "[s]ir, I'm not addressing that. If you have issues with the motion to
recuse that goes with [the presiding judge]. Start on your motion for continuance, I have no
jurisdiction over those issues.'' This exchange demonstrates the opposite ofmother's contention. The
trial court properly refused to consider any issues pertaining to the recusal. The trial court took no
action between the time the motions were filed and the order of denial was entered by the presiding
judge. After the motions were denied, the trial court was once again empowered to act. Because the
court complied with the rule, there was no error. We resolve mother's fourth issue against her.
Failure to take Judicial Notice
In her sixth issue, mother assigns error to the trial court's refusal to take judicial notice of
domestic violence charges alleged to be pending against father. During trial, mother testified without
objection that a domestic violence case was pending against father. After mother's testimony,
counsel made an oral motion to the court requesting the court take judicial notice of the adjudicative
facts of the domestic violence case. The trial court refused.
Mother argues judicial notice is mandatory, citing our decision in Brown v. Brown, 145
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S.W.3d 745, 750 (Tex.App.-Dallas 2004, pet. denied). Mother's argument ignores the critical
distinction between Brown and this case. In Brown, we held a court may take judicial notice of the
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records of another court when it is provided with those records. Once a court has been provided with
the necessary information, such notice is mandatory. !d. Unlike Brown, the trial court was provided
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· with-no records; Moreover; mother's counsel was well aware of the need for the records; therewas- -- -- -- -
extensive discussion at one of the many pre-trial hearings about the necessity of obtaining the
records. It is axiomatic that when the court is provided with no record of the facts, there is nothing
for the court to judicially notice. We conclude the trial court did not abuse its discretion when it
refused mother's request for judicial notice.
Ignoring and Predetermining the Merits
In a sub-part of her sixth issue, mother asserts the trial court ignored and predetermined the
merits of other evidence of abuse. Mother's formulation of this issue consists of a multifarious litany
of alleged wrongs, including complaints about rulings on temporary orders and comments made
from the bench. We cannot consider this issue because it is multifarious and inadequately briefed.
See Green v. Kaposta, 152 S.W.3d 839 (Tex.App.-Dallas 2005, no pet.); TEX. R APP. P. 38.l(h).
('· Mother's sixth issue is overruled.
ChargeEffor
In her fifth issue, mother contends the trial court erred by refusing to instruct the jury: (a) that
there is a statutory presumption against custody when there is evidence of family violence; and (b)
that mother has a statutory duty to protect the child from abuse. Father argues any error was not
properly preserved for appeal and has therefore been waived.
''Rule 277 of the Texas Rules of Civil Procedure requires a trial court to submit 'such
instructions and definitions as shall be proper to enable the jury to render a verdict.'" State Farm
Lloyds v. Nicolau, 951 S.W.2d 444,451 (Tex.1997) (quoting TEX. R CIV. P. 277). An appellate
court reviews a trial court's decision to submit or refuse an instruction under an abuse of discretion
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standard. Shupe v. Lingafelter, 192 S.W.3d 577, 579 (Tex.2006). The trial court has broad discretion
( in submitting jury questions so long as the questions submitted fairly place the disputed issues
- - - -·- ·before the jury-:- Rosell- v. -Central-West- Motor-Stages;-Inc;; 89- S: W-:-3d-643-,653-f-Tex;-A:pp.-Dallas
2002, pet. denied). When submitting the jury charge, a trial court is afforded more discretion when
submitting instructions than when submitting questions. Id; Wal-Mart Stores, Inc. v. Middleton, 982
S.W.2d 468,470 {Tex.App.-SanAntonio 1998, pet. denied). To be proper, an instruction "must(1)
assist the jury; (2) accurately state the law; and (3) find support in the pleadings and the evidence."
Texas Worker's Camp. Ins. Fund v. Mandlbauer, 34 S.W.3d 909,912 (Tex. 2000). Even if a trial
court abuses its discretion, we do not reverse unless the omission of the instruction probably caused
the rendition of an improper judgment. Shupe, 192 S.W.3d at 579.To determine whether an alleged
error in the charge is reversible error, we consider the pleadings of the parties, the evidence
presented at trial, and the charge in its entirety. American Title Co. v. BOMAC Mortgage Holdings,
L.P., 196 S.W.3d 903, 907 {Tex. App.-Dallas 2006, no pet.).
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Mother filed her requested charge in accordance with the court's pretrial order. Mother's
proposal requested the jury be instructed on certain provisions in TEx. FAM. CODE ANN.§ 261.001
(V emon 2006). The requested charge contained no authority for the submission ofthe issue in a case
of this nature. At the charge conference, mother elaborated on the request, seeking instructions that
sexual conduct harmful to a child's mental, emotional, or physical welfare is abuse, and that a parent
has a duty to make a reasonable effort to prevent sexual conduct harmful to a child. The trial court
declined the requested instructions, noting the Family Code provisions cited by mother pertain to
actions in which CPS is investigating allegations of abuse, and are not among the rights, powers, and
duties pertaining to parents in a custody dispute. Mother's counsel objected, but other than asserting
the instruction should be included, failed to specify how the omission of the instruction was error.
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Consequently, this general objection did not preserve the alleged error for appeal. See TEX. R. Crv.
P. 274; TEX. R.APP. P. 33.l(a)(l)(A); Castleberryv. Branscum, 721 S.W.2d 270,276 (Tex. 1986).
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Even if the complaint had been· preserved, mother cites to no authority; nor are we aware· of any,
requiring a fact-finder in a custody dispute to consider the factors enumerated in TEX. FAM. CODE
ANN.§ 261.001. Mother also fails to demonstrate how the failure to include such an instruction led
to the rendition of an improper judgment.
The second omitted instruction about which mother complains was requested after the charge
conference, but before the charge was read to the jury. Mother requested the court instruct the jury
that under TEX. FAM. CODE ANN.§ 153.04 (Vernon 2006), there is a statutory presumption against
custody when there is a history of family violence. When mother requested this instruction, the court
noted the charge conference had concluded the preceding day. Nonetheless, the court allowed
counsel to make a bill of exception. Mother did so by making a general oral objection to the court's
refusal to include the newly requested instruction. Mother only complained about the failure to
include the instruction; she did not explain to the trial court why the exclusion might constitute error.
The court denied the request. The requested instruction was not included in the proposed instructions
initially tendered to the court, nor was the instruction tendered in writing when the bill of exception
was made. When the court omits an instruction or definition, a party must make a request in writing.
TEx. R. Crv. P. 274; TEx. R. Crv. P. 278; Gerdes v. Kennamer, 155 S.W.3d 523, 534
(Tex.App.-Corpus Christi 2004, pet. denied). Thus, any error was not preserved for our review.
Even had the issue been preserved, we cannot conclude the omission was reversible error.
After hearing all of the evidence, the trial court found there was not a pattern of family violence. The
jury heard evidence concerning family violence. They were informed criminal charges were pending
against father based on mother's allegation of family violence. This evidence was introduced in a
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videotape made by mother and played for the jury. There was also evidence concerning mother's
family violence in the form of a protective order entered against mother by her own mother. Thus,
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determination. Any error was harmless. Mother's fifth issue is overruled.
Best Interest o(the Child
In her seventh issue, mother argues the court erred because it failed to consider the best
interest of the child. In support ofher argument, mother argues because there was an alleged lack
of advocacy for the chil~, "it is unlikely the Holley factors were adequately considered or
investigated" See Holley v. Adams, 544 S.W.2d 367,372 (Tex. 1976). Mother further asserts there
is no indication the trial court considered the desires of the child "as required by Holley". We
disagree with mother's interpretation ofboth Holley and the record.
The best interest of the child shall always be the primary consideration of the court in
determining questions of managing conservatorship, possession, and support of and access to a
)
( child. TEX. FAM.CODE ANN.§ 153.002 (Vernon 1996). Trial courts have wide discretion in
determining what is in the best interest of the child. Weimer v. Weimer, 788 S.W.2d 647, 650
(Tex.App. -Corpus Christi 1990, no writ). The trial court's judgment regarding what serves the best
interest of the child with regard to child support and visitation, specifically the establishment of
terms and conditions of the conservatorship, is a discretionary function of the trial court and will
only be reversed upon a determination that the trial court has abused its discretion. MacCallum v.
MacCallum, 801 S.W.2d 579, 582 {Tex.App-Corpus Christi 1990, writ denied). This is because the
trial court is in the best position to observe the demeanor and personalities of the witnesses and can
feel forces, powers, and influences that cannot be discerned by merely reading the record. In the
Interest of T, 715 S.W.2d 416, 418 (Tex.App.-Dallas 1986, no writ). The test for abuse of
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discretion is whether the trial court acted without reference to any guiding rules or principles; m
other words, whether the act was arbitrary or unreasonable. Warford v. Stamper, 801 S.W.2d 108,
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109 (Tex.1990).
Holley provides a list ofnon-exclusive factors the court may consider. See Holley, at 371-72;
In re J.A., 109 S. W .3d 869, 876-77 (Tex.App.-Dallas 2003, pet. denied). Proof ofbest interest is not
limited to these specific factors, nor do all factors always apply in every case. In re C.H., 89 S.W.3d
17, 27 (Tex. 2002). The focus is on the best interest of the child, not the best interest of the parent.
Dupree v. Tex. Dep 't of Protective Servs., 907 S.W.2d 81, 86 (Tex.App.-Dallas 1995, no writ).
There was no indication the child was sufficiently mature to express a parental preference, and the
co~ was not required to consider the wishes of the child. The court's finding that mother
manipulated the child's statements and influenced the child to tum against the father is also
significant. In light of this manipulatio~ it is questionable whether any expression of preference by
the child would truly evidence the child's desires.
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( Mother also contends the trial court's limitations on her access to the child do not comport
· with the recommendations of the experts. We disagree. Although the experts stated regular contact
with mother was in the best interest of the child, these statements were qualified. Dr.Zervopoulas
indicated mother should have more access to the child as long as her interaction does not begin to
generate the type of difficulties he previously observed. Dr. Zervopoulas also opined mother's
access to the child should be supervised. Moreover, regular contact does not necessarily equate to
managing conservatorship. Dr. Zervopoulas had parent-child sessions with both parents. He
observed comfortable and affectionate interaction between father and the child. The child complied
with the father's instructions and boundaries. Mother's interaction with the child was completely
different. The child ran up and down the halls of the office, and mother could not control her. The
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child refused to enter the room, threw a tantrum, and began hitting mother. Mother's attempts at
instruction went unheeded. Dr. Zervopoulas concluded mother's emotional issues get in the way of
( the parenting the child requires, and mother is unable to set limits for the child. Zervopoulas
recommended the child live with father because his lifestyle, and sense of structure and
appropriateness would be better for the child. Gail Inman, the child's court-appointed counselor
concurred with Dr. Zervopoulas. Inman opined, based on numerous observations, the child functions
better behaviorally when she is with her father and grandparents. During supervised visitation,
mother admitted to the counselor she kept late and erratic hours, and the child maintained the same
schedule when she was with her. Mother also admitted she had difficulty controlling the child. We
conclude the trial court did not abuse its discretion in determining the best interest of the child.
Mother's seventh issue is overruled.
Having resolved all of mother's issues against her, we affirm the judgment of the trial court.
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JUSTICE
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