in Re Alexandra Garza, Relator ( 2022 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-22-00262-CV
IN RE ALEXANDRA GARZA, RELATOR
ORIGINAL PROCEEDING
October 31, 2022
MEMORANDUM OPINION
Before QUINN, C.J., and PARKER and DOSS, JJ.
Relator, Alexandra Garza, filed a petition for writ of mandamus challenging the trial
court’s temporary orders in the underlying suit to modify the parent-child relationship.
Garza asserts that the trial court abused its discretion when it granted unsupervised
visitation to the real party in interest, Matthew Moreno. We deny mandamus relief.
BACKGROUND
Garza and Moreno are the parents of two daughters, P.R.M. and L.A.M., both of
whom were born during Moreno’s marriage to another woman. In February of 2021, the
trial court entered an order appointing Garza and Moreno as joint managing conservators
of the children and granted Moreno a standard possession order. After Moreno
committed an act of family violence against Garza, a protective order was entered against
him in May of 2021. The order identified Garza as the person protected under the order.
Moreno had limited visitation with the children following entry of the order. In November
of 2021, Moreno filed a motion for enforcement of possession and access. Shortly
thereafter, in December of 2021, Garza filed a petition to modify the parent-child
relationship in which she requested that Moreno be removed as a joint managing
conservator and excluded from possession and access to the children or, alternatively,
that his possession be supervised.
The associate judge removed Moreno as joint managing conservator and limited
his possession and access. Both parties sought de novo review. Following the de novo
review hearing, the trial court appointed Garza as temporary sole managing conservator
and Moreno as temporary possessory conservator. The trial court granted Moreno a
modified possession schedule allowing unsupervised visitation. Garza then filed her
petition for writ of mandamus.
STANDARD OF REVIEW
Mandamus relief is proper only to correct a clear abuse of discretion when there is
no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d
204, 207 (Tex. 2009) (orig. proceeding). A trial court clearly abuses its discretion when it
reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial
error of law. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding). As
to the resolution of factual issues or matters committed to the trial court’s discretion, we
may not substitute our judgment for that of the trial court unless the relator establishes
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that the trial court could reasonably have reached only one decision and that the trial
court’s decision is arbitrary and unreasonable. Id. at 839–40. Under the abuse of
discretion standard, we defer to the trial court’s factual determinations if they are
supported by the evidence. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex.
2009) (orig. proceeding). The trial judge as the trier of fact may draw reasonable
inferences from the evidence, and its findings of fact may not be disregarded on appeal
unless the record contains no evidence of probative value from which these inferences
may be drawn, or the findings are so contrary to the overwhelming weight of the evidence
as to be manifestly wrong. IFG Leasing Co. v. Ellis, 748 S.W.2d 564, 565–66 (Tex.
App.—Houston [1st Dist.] 1988, no writ).
Because a trial court’s temporary orders are not appealable, mandamus is an
appropriate means to challenge them. See, e.g., In re Derzapf, 219 S.W.3d 327, 334–35
(Tex. 2007) (orig. proceeding) (per curiam); Little v. Daggett, 858 S.W.2d 368, 369 (Tex.
1993) (orig. proceeding) (per curiam).
ANALYSIS
In this proceeding, Garza contends that, in granting Moreno unsupervised
visitation, the trial court either (1) acted arbitrarily, unreasonably, or without reference to
any guiding rules or principles, or (2) failed to properly analyze and apply the law, because
Moreno failed to overcome the rebuttable presumption that unsupervised visitation is not
in the best interest of the children.
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Relevant Law
Texas public policy encourages the development of a close and continuing
relationship between each parent and child. See TEX. FAM. CODE ANN. § 153.251(b).1
The Texas Family Code provides a standard possession order for parents who are
designated as joint managing conservators and who reside 100 miles or less apart. See
§ 153.312. A trial court may consider several factors when deviating from the standard
possession order and is required to consider the commission of family violence in
determining whether to deny, restrict, or limit the possession of a child by a parent who is
appointed as a possessory conservator. § 153.004(c). “It is a rebuttable presumption
that it is not in the best interest of a child for a parent to have unsupervised visitation with
the child if credible evidence is presented of a history or pattern” of family violence by that
parent. § 153.004(e).
The court may allow a parent with a history of family violence to have access to a
child if the court (1) finds that such access would not endanger the child’s physical health
or emotional welfare and would be in the best interest of the child and (2) renders a
possession order designed to protect the child’s safety and wellbeing. § 153.004(d-1).
Discussion
In its temporary order, the trial court found that “there has been a history of past
physical abuse by [Moreno] directed against [Garza]” and that finding is not challenged in
this proceeding. The finding triggered the rebuttable presumption that it is not in the best
1 Further references to the Texas Family Code will be to “section __” or § __.”
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interest of the children for Moreno to have unsupervised visitation. § 153.004(e). “A
presumption is simply a rule of law requiring the trier of fact to reach a particular
conclusion in the absence of evidence to the contrary.” Temple Indep. Sch. Dist. v.
English, 896 S.W.2d 167, 169 (Tex. 1995). The presumption disappears when contrary
evidence is introduced. Id.The trial court also found “that awarding [Moreno] access to the children would not
endanger the physical health or emotional welfare of the children and that such access
would be in the best interest of the children.” It further found that the possession order it
entered, which requires the children to be exchanged at the home of their maternal
grandmother, “is designed to protect the safety and wellbeing of the children and [Garza].”
Garza asserts that Moreno failed to present evidence to rebut the section
153.004(e) presumption that unsupervised visitation is not in the best interest of the
children. However, Moreno testified that he believed it was in his daughters’ best interest
to spend time with him and that “taking them away only hurts the children.” He testified
that when he was allowed to be around the children, things were “great.” He said that
“the kids would kick down the door[,] excited that I was there.” Additionally, the trial court
heard evidence that Moreno’s periods of possession were unsupervised both before and
after the protective order was entered, and that those visits occurred without incident.
Moreno also testified regarding many attempts he had made to exercise visitation
but was prevented from seeing the children by Garza. His counsel elicited testimony that
Moreno has no criminal history, does not drink alcohol, and does not use drugs. Moreno
testified that he desires to spend time with his children and that he has never done
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anything to harm them. The record disclosed no conduct by Moreno that posed a risk to
the children or endangered their wellbeing. Moreno’s mother testified that she observed
Moreno interact with his children on many occasions and had no concerns that the
children were at risk of harm. Moreno testified that there had been only one incident of
domestic violence between him and Garza, which occurred when the two were arguing
and Moreno kicked Garza in the leg. Moreno further stated that the children did not
witness the incident. Garza testified differently regarding the family violence, stating that
their oldest child saw Moreno kick her in the leg. Garza also testified to additional acts of
violence by Moreno and to his previous threats of suicide.
Appellate courts give wide latitude to trial courts’ determinations on possession
and visitation issues. See In re S.A.H., 420 S.W.3d 911, 930 n.31 (Tex. App.—Houston
[14th Dist.] 2014, no pet.) (citing Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)).
We defer to the trial court, which was in the best position to evaluate the testimony of
Moreno and Garza.
The evidence indicated that Moreno presented no physical danger to the children
and that his access to the children would not endanger their physical health or emotional
welfare, supporting the conclusion that supervised visitation was not necessary.
Moreover, the trial court was free to believe Moreno’s testimony indicating he had a
positive relationship with the children and that imposing restrictions on his access to them
would be harmful to them.
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Because there is evidence to support the trial court’s finding, we cannot conclude
that the trial court abused its discretion in finding that it is in the best interest of the children
for Moreno to have unsupervised visitation with them.
CONCLUSION
Accordingly, we deny Garza’s request for mandamus relief.
Judy C. Parker
Justice
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