in the Interest of J.J.R. and D.A.R., Children ( 2016 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-15-00581-CV
IN THE INTEREST OF J.J.R. AND D.A.R., Children
From the 37th Judicial District Court, Bexar County, Texas
Trial Court No. 2008-CI-09583
Honorable John D. Gabriel Jr., Judge Presiding
Opinion by: Jason Pulliam, Justice
Sitting: Patricia O. Alvarez, Justice
Luz Elena D. Chapa, Justice
Jason Pulliam, Justice
Delivered and Filed: September 7, 2016
AFFIRMED
INTRODUCTION
This appeal arises from Appellee Charles R.’s petition to modify the parent-child
relationship. 1 After a three-day bench trial, the trial court granted Charles R.’s request to modify
a divorce decree to be designated the person having the exclusive right to designate his children’s
primary residence. Appellant, Angelica F. contends the trial court abused its discretion by (1)
allowing the social study evaluator to offer a recommendation or testify regarding her opinion as
to the right to designate the primary residence of the children; and (2) by conducting the trial
through three hearings spread over the course of four months. We affirm the trial court’s order.
1
To protect the identity of minor children, we refer to the children by their initials and to the parents by their first
names. See TEX. FAM. CODE ANN. § 109.002(d) (West 2014).
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BACKGROUND
In a 2009 divorce decree, Angelica F. and Charles R. were appointed joint managing
conservators of the couple’s two children, J.J.R. and D.A.R. Angelica F. was appointed the
exclusive right to designate the primary residence of the children without regard to geographic
location. Charles R. was provided a Standard Possession Order. Subsequent to the divorce, both
parties remarried.
On January 29, 2014, following Angelica F.’s indication she intended to move to Belton,
Texas, due to her husband’s military re-location, Charles R. filed a petition to modify the parent-
child relationship requesting that a geographic restriction of one-hundred miles from Charles R.
be placed on Angelica F. (or a restriction to Bexar County), and if Angelica F. moved from her
current location she be ordered to pay for one-half of the travel expenses of visitation. Charles R.
also requested that Angelica F. be ordered to not allow the children to live with anyone who is not
related to them by blood or marriage and requested he be appointed the exclusive right to designate
the primary residence of the children.
Following a temporary orders hearing on February 11, 2014, the trial court denied Charles
R.’s request to impose a geographic restriction. The trial court also ordered Ms. Carol Anne
Waters prepare a social study of the circumstances and condition of the children and the homes of
Angelica F. and Charles R. and to prepare a report providing a recommendation on which party
should be awarded the right to designate the children’s primary residence. Thereafter, Angelica
F. moved to Belton, Texas, with the children.
Ms. Waters conducted the court-ordered Social Study Report (the Report), which included
the required recommendation, and she filed it in the trial court record on August 11, 2014. Based
on the information reviewed and provided by the parties, collaterals, references, and children, Ms.
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Waters recommended that Charles R. have the exclusive right to determine the children’s
residence.
A bench trial on the merits began on February 19, 2015, and was reconvened on June 4,
2015, and June 12, 2015. Following trial, the trial court entered a final order awarding Charles R.
the exclusive right to designate the primary residence of the children within Bexar County or the
contiguous counties. Angelica F. was given a Standard Possession Order. Angelica F. appeals the
trial court’s final order.
ANALYSIS
In her first issue on appeal, Angelica F. asserts the trial court abused its discretion by
allowing Ms. Waters to present recommendations regarding conservatorship or possession and
access or by otherwise admitting the Report into evidence because it failed to satisfy the statutory
requirements of such reports as mandated by Chapter 107 of the Texas Family Code. Specifically,
Angelica F. contends the Report fails to meet basic statutory requirements, fails to include
additional customary elements, and fails to include discussion of the factors enumerated in Holley
v. Adams, 544 S.W.2d 367, 372 (Tex. 1976) to determine the best interest of the children. In
addition, Angelica F. asserts the Report fails to make use of evidenced-based practice methods and
current best evidence in making assessments and recommendation and lacks objective information
regarding parental abilities of the parties. For these reasons, Angelica F. contends Chapter 107 of
the Family Code mandates that Ms. Waters not be allowed to testify or otherwise provide any
recommendation.
Standard of Review
The trial court’s rulings regarding the admission of evidence are reviewed for an abuse of
discretion. Owens-Corning Fiberglas Corp. v. Malone, 972 S.W.2d 35, 43 (Tex. 1998); In re D.P.,
04-02-00088-CV, 2002 WL 31465817, at *1 (Tex. App.—San Antonio Nov. 6, 2002, no pet.). A
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trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or if it acts
without reference to any guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701
S.W.2d 238, 241–42 (Tex. 1985). Errors that involve the admission or exclusion of evidence are
generally not reversible, unless the entire record shows the evidence was controlling on a material
issue dispositive of the case. PNP Petroleum I, LP v. Taylor, 438 S.W.3d 723, 732 (Tex. App.—
San Antonio 2014, pet. denied). In other words, the evidence must be of such probative force that
its admission or exclusion likely caused a different verdict than what would have been rendered.
Downer, 701 S.W.2d at 242; Hundere v. Tracy & Cook, 494 S.W.2d 257, 261–62 (Tex. Civ.
App.—San Antonio 1973, writ ref’d n.r.e.).
Applicable Law
Texas Family Code Section 107.051 gives the trial court discretion to order the preparation
of a social study “into the circumstances and condition of the child and of ... the home of any
person requesting managing conservatorship [or] possession of [the] child.” TEX. FAM. CODE
ANN. § 107.051 (West 2014); In re C.L.C., 04-11-00920-CV, 2013 WL 1149270, at *4 (Tex.
App.—San Antonio Mar. 20, 2013, no pet.). The social study is designed to objectively “compare
the circumstances and conditions of all individuals seeking managing conservatorship or
possession of a child, and to make recommendations to the court regarding the best interest of the
child.” Chacon v. Chacon, 978 S.W.2d 633, 637–38 (Tex. App.—El Paso 1998, no pet.); In re
C.L.C., 2013 WL 1149270, at *4.
If the court orders the preparation of a social study, the social study evaluator must submit
a report detailing her findings and conclusions and it shall be made part of the court record. TEX.
FAM. CODE ANN. § 107.054 (West 2014). At a minimum, this report should contain the following
basic elements:
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(1) a personal interview of each party to the suit; (2) an interview ... of each child
at issue ...; (3) observation of each child ...; (4) the obtaining of information from
relevant collateral sources; (5) evaluation of the home environment of each party
seeking conservatorship of a child[,] ... unless the condition of the home
environment is identified as not being in dispute in the court order requiring the
social study; (6) for each individual residing in a residence subject to the social
study, consideration of any criminal history information and any contact with the
Department of Family and Protective Services or a law enforcement agency
regarding abuse or neglect; and (7) assessment of the relationship between each
child at issue in the suit and each party seeking possession of or access to the child.
Id. § 107.0514(a) (West 2014). The evaluator “may not offer an opinion regarding conservatorship
of a child at issue in a suit or possession of or access to the child unless each basic element of the
social study under Subsection (a) has been completed.” Id. § 107.0514(c); see also In re C.L.C.,
2013 WL 1149270, at *4.
To preserve a complaint regarding admission of evidence for appellate review, a party must
present to the trial court a timely request, objection or motion, state the specific grounds therefor,
and obtain a ruling. TEX. R. APP. P. 33.1(a). The party must state an objection clearly and with
sufficient specificity to make the trial court aware of the particular grounds of complaint. Id.;
McKinney v. Nat’l Union Fire Ins. Co., 772 S.W.2d 72, 74 (Tex. 1989). A specific objection is
one that enables the trial court to understand the precise grounds so as to make an informed ruling
and affords the offering party an opportunity to remedy the defect, if possible. McKinney, 772
S.W.2d at 74; In re N.C.M., 66 S.W.3d 417, 420 (Tex. App.—Tyler 2001, no pet.).
Application
While Angelica F. contends the trial court abused its discretion by allowing Ms. Waters to
testify, given that her report did not satisfy the statutory requirements, the record reveals Angelica
F. did not object to Ms. Waters’s testimony nor did she ever object to any deficiencies or omissions
in the Report that would preclude Ms. Waters from making a recommendation regarding
conservatorship or from testifying in this regard. The record reveals Ms. Waters filed the Report,
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which included her recommendations, on August 11, 2014, six months before trial began on
February 19, 2015. At no time did Angelica F. object to the report or request that omissions be
corrected or that Ms. Waters be precluded from testifying or providing recommendations. When
Ms. Waters testified at trial, Angelica F. did not object to her being allowed to testify, to the
discussion of the Report during Ms. Waters’s testimony, nor did Angelica F. present any objection
to the Report. Thus, the record reveals Angelica F. did not present any objection to any statutory
deficiencies in the report that would preclude Ms. Waters’s testimony or that would preclude any
recommendation “regarding conservatorship”.
For this reason, Angelica F. failed to preserve any complaint for review on appeal
pertaining to the failure of the Report to satisfy the statutory requirements as outlined in Sections
107.0513 or 107.0514 of the Texas Family Code. Angelica F.’s first issue is overruled.
In her second issue on appeal, Angelica F. contends the trial court erred by scheduling the
trial in three separate hearings over the course of four months, and this management of the docket
probably caused the rendition of an improper judgment.
Angelica F. did not object during any proceeding regarding the scheduling of trial hearings.
At the conclusion of the first day on February 19, 2015, the trial court consulted with the parties
and their attorneys and Ms. Waters regarding a convenient date to reconvene and reset the matter
for March 20, 2015. Thereafter, Angelica F. filed a motion for continuance and entered numerous
Rule 11 Agreements pertaining to the extension of discovery and the final trial setting. Angelica
F. expressed no objection to the continued extensions. At the conclusion of the hearing on June 4,
2015, Angelica F. and her attorney agreed to reconvene on June 12th with no objection.
For this reason, Angelica F. failed to preserve for review on appeal any complaint
pertaining to the trial court’s scheduling of trial in three separate hearings over the course of four
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months or pertaining to the trial court’s management of the docket. Angelica F.’s second issue is
overruled.
Jason Pulliam, Justice
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