in the Interest of M.S.R. and S.R., Children ( 2007 )

NUMBER 13-05-493-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG IN THE INTEREST OF M.S.R. AND S.R., CHILDREN On appeal from the County Court at Law No. 1 of Hidalgo County, Texas. MEMORANDUM OPINION Before Justices Yañez, Benavides, and Vela Memorandum Opinion by Justice Benavides Appellant Sameena Ahmed, the natural mother of M.S.R. and S.R., appeals a trial court order that: (1) modified a 1998 conservatorship order by reclassifying Ahmed as the possessory conservator rather than managing conservator of the children; (2) terminated her parental rights of access and visitation to the children; and (3) enjoined her from alleged harassment of the appellee, her ex-husband, Dr. Shahid Rashid. We find the trial court did not abuse its discretion in ordering the modification of conservatorship. We do, however, find the evidence insufficient to support the court's termination of parental access and visitation rights. Furthermore, we find the permanent injunction overbroad and unenforceable. Therefore, we affirm the order as to modification of conservatorship and reverse the order as to termination and the permanent injunction.

I. Factual Background

Dr. Shahid Rashid and Ms. Sameena Ahmed were divorced in 1998. They are the natural parents of two minor children from the marriage, M.S.R. and S.R. Dr. Rashid and Ms. Ahmed were named joint managing conservators in the 1998 divorce decree. After the divorce, the two children remained at Dr. Rashid's home in McAllen, Texas, where he maintains an anesthesiology practice. Ms. Ahmed moved to Chicago, Illinois to attend law school, and upon her graduation in 2001, spent the next two years working in Chicago and in Washington, D.C. In April 2004, Dr. Rashid filed a motion for modification of the divorce decree, seeking to be named sole managing conservator. Ms. Rashid then moved back to the McAllen area in order to be closer to the children and to better contest the motion.

Dr. Rashid prevailed in the subsequent trial by offering evidence that Ms. Ahmed had become an unstable and disruptive influence in the children's lives. The trial court (1) designated Dr. Rashid sole managing conservator, (2) designated Ms. Ahmed possessory conservator, (3) denied Ms. Ahmed all parental visitation and access rights to the children, ⁽¹⁾ and (4) permanently enjoined Ms. Ahmed from "harassing" Dr. Rashid.

In an oral pronouncement, the court indicated that four particular pieces of evidence prompted its modification of conservatorship and termination of parental access rights. First, the court cited a tape recording of a telephone conversation (partly in English, and partly in Urdu) between Dr. Rashid and Ms. Ahmed in which Ms. Ahmed threatened herself and the two children with "expression[s] of aggression and some loud discussions."

Second, the court cited allegedly "hostile" behavior by Ms. Ahmed directed towards the court-appointed attorney ad litem. For instance, Ms. Ahmed became very upset when the ad litem arrived to observe and supervise Ms. Ahmed's visit with M.S.R. and S.R. at a McAllen restaurant because she did not believe that the existing agreement mandated supervised visitation. Ms. Ahmed demanded that the ad litem leave and phoned the police to file a report. The court also construed Ms. Ahmed's conduct in having an attorney who was not of record phone the ad litem for questioning on a Sunday as harassment. Ms. Ahmed does not dispute either incident--she merely claims that the incidents were legitimate exercises of legal rights that do not rise to the level of "harassment."

Third, the court sympathized with concerns that Ms. Ahmed had received personal and financial assistance in McAllen from persons who were known to have "disagreements or problems" with her ex-husband, thus calling into question whether her motive for returning to McAllen was to contest the motion or merely to harass Dr. Rashid.

Finally, the court cited the disparity in stability between Dr. Rashid and Ms. Ahmed. Dr. Rashid has a house, a steady medical practice, and greater economic resources, whereas Ms. Ahmed has spent the years since the divorce moving around the country to attend school and pursue several jobs.

With respect to the permanent injunction against "harassing" behavior, the trial court received testimony by Dr. Rashid about the following incidents: (1) that Ms. Ahmed once brought the McAllen police with her to Dr. Rashid's home in order to enforce her visitation rights; (2) that she told members of Dr. Rashid's mosque that Dr. Rashid was a "very bad person;" (3) that she entered the school of M.S.R. and S.R. in order to access the children's school records; and (4) that she flew on the same airplane with Dr. Rashid on a trip to Houston.

The court issued its written order on May 2, 2005. Ms. Ahmed now appeals all rulings in the order--the modification of conservatorship, the denial of parental access and visitation rights, and the permanent injunction.  

II. Analysis

We begin by noting that Ms. Ahmed made a timely and proper request for findings of fact and conclusions of law, but these were not filed by the trial court. We do not presume harm to Miss Ahmed, however, because in such situations harm is only presumed if the appellant is required "to guess the reason or reasons that the trial judge has ruled against it." Sheldon Pollack Corp. Pioneer Concrete of Tex., 765 S.W.2d 843, 845 (Tex. App.-Dallas 1989, writ denied). In the instant case, Miss Ahmed was not forced to guess the reasons she did not prevail because, as we noted above, the trial court specifically articulated its reasons during the trial. Sagemont Plaza Shopping v. Harris County Appraisal Dist., 30 S.W.3d 425, 427 (Tex. App.-Corpus Christi 2000, pet. denied) (determining that although findings of fact and conclusions of law were not filed, the appellant did not have to guess the reason for the court's ruling because "the trial court announced its ruling in open court and gave the parties the reason for its ruling"). We proceed with our analysis by reviewing this reasoning, which can be found in the reporter's record, and by evaluating it in the light most favorable to the judgment of the trial court. Schoeffler v. Denton, 813 S.W.2d 742, 745 (Tex. App.-Houston [14th Dist.] 1991, no writ).

We review the trial court's order under a highly deferential abuse of discretion standard. Schoeffler, 813 S.W.2d at 745. The test for abuse of discretion is to determine whether the trial court acted without reference to any guiding rules or principles, or whether under the circumstances of the case, the trial court's actions were arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

A. Modification of the Conservatorship Order

A court may modify a conservatorship order if (1) the modification would be in the best interest of the child; and (2) the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the date of the rendition of the order. Tex. Fam. Code Ann. § 156.101(1)(A) (Vernon 2006). The family code requires proof of a material and substantial change of circumstances because of res judicata considerations and the State's desire to prevent constant relitigation with respect to children. Child v. Leverton, 210 S.W.3d 694, 696 (Tex. App.-Eastland 2006, no pet.).

A conservator's move to a new location is not itself a material change in circumstances, but it may combine with other factors to establish a material change. Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex. App.-Houston [1st Dist.] 1988, no pet.). Relevant factors include, but are not limited to, the distance of a move, the nature and quality of the children's contacts with the noncustodial parent, and the proximity, availability, and safety of travel arrangements. Bates v. Tesar, 81 S.W.3d 411, 430 (Tex. App.-El Paso 2002, no pet.). Stability for the child is also an important consideration. Child, 210 S.W.3d at 698. Evidence concerning stability might serve as evidence not only of a material and substantial change in circumstances but also as evidence of the next part of the inquiry--the best interest of the child. Id.

The best interest of the child is the primary consideration in determining conservatorship, possession, and access rights of a parent. Tex. Fam. Code Ann. § 153.002 (Vernon 2002); see also E. C. v. Graydon, 28 S.W.3d 825, 828 (Tex. App.-Corpus Christi 2000, no pet.). The trial court has wide discretion in determining the best interests of a child because the court is in the best position to observe such things as demeanor and personalities of the witnesses, which cannot be discerned merely by reading the record. In re H.S.N., 69 S.W.3d 829, 831 (Tex. App.-Corpus Christi 2002, no pet.).

In this case, we do not believe that the trial court abused its discretion in modifying the conservatorship order to name Dr. Rashid sole managing conservator and Ms. Ahmed possessory conservator. To begin, it was not an abuse of discretion for the court to find a "substantial and material change in circumstances" justifying a reconsideration of the order because the disparity in stability that has developed between Dr. Rashid's circumstances and Ms. Ahmed's circumstances since the rendition of the original order is sufficient to constitute a material change. Although Ms. Ahmed was once a daily presence in the lives of M.S.R. and S.R., she has spent the past five years living over a thousand miles away in Chicago and then in Washington, D.C. These are moves of a significant distance which rendered travel arrangements for the children far more difficult than a local or regional move. Most significantly, the moves have made her living situation far less stable than it was when the original conservatorship order was rendered. It cannot be considered an abuse of discretion for the trial court to have judged the situation between Ms. Ahmed, Dr. Rashid, and the two children to have changed so substantially and materially over the past five years that a reconsideration of the conservatorship order was justified.

We further believe that it was not an abuse of discretion for the court to decide, based upon the evidence it heard, that it was in the best interest of M.S.R. and S.R. for Dr. Ahmed to be granted sole conservatorship. In its oral pronouncements, the trial court explained that it came to its decision after considering the evidence that Ms. Ahmed had threatened herself and the children in a telephone call, that she had displayed hostility towards the ad litem attorney ⁽²⁾, that she had received assistance upon moving to McAllen from persons who had personal problems with her ex-husband, and due to the significant disparity in stability between the two conservators. The decision the court reached upon hearing this evidence was not arbitrary or unreasonable. Moreover, the court appears to have considered all the evidence in concert, rather than basing its decision on any one point of evidence at the exclusion of the others. Such an analysis cannot be said to have been made without reference to any guiding rules or principles and cannot be described as an abuse of discretion.

Therefore, with respect to the motion to modify conservatorship, we affirm the judgment of the trial court.

B. Denial of Access and Visitation

A parent has the right to the companionship, care, custody, and management of his or her children. In re D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex. App.-Corpus Christi 2006, no pet. h.). These are fundamental individual rights which our law recognizes as far more precious than any property right. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (describing parental rights as "a basic civil right"); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) ("[t]he natural right which exists between parents and their children is one of constitutional dimensions"); see also Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). A trial court may limit the rights and duties of a parent, however, upon a written finding that the limitation is in the best interest of the child. Tex. Fam. Code Ann. § 153.072 (Vernon 2002).

Complete denial of access should rarely be ordered. See In re Walters, 39 S.W.3d 280, 286-87 (Tex. App.-Texarkana 2001, no pet.). A parent appointed possessory conservator should at least have periodic visiting privileges with his or her child and should not be denied such privileges except in extreme circumstances. Green v. Green, 850 S.W.2d 809, 812 (Tex. App.-El Paso 1993, no writ); Thompson v. Thompson, 827 S.W.2d 563, 569 (Tex. App.-Corpus Christi 1992, writ denied); Allison v. Allison, 660 S.W.2d 134, 137 (Tex. App.-San Antonio 1983, no writ); see also Hale v. Hale, No. 04-05-00314-CV, 2006 Tex. App. LEXIS 747, at *8 (Tex. App.-San Antonio January 25, 2006, pet. denied) (mem. op.). Therefore, this Court's review of any denial of parental access and visitation rights--be they conditional, temporary, or permanent--must be evaluated under an exacting standard: only "extreme grounds" can warrant such a harsh remedy. Green, 850 S.W.2d at 812.

There is little case law defining the contours of the "extreme" grounds that permit a trial court to deny, rather than merely limit, the access and visitation rights of a parent. This perhaps indicates that the remedy is so strict that courts only apply it in rare circumstances. See Walters, 39 S.W.3d at 286. The few cases providing guidance feature facts in which the parent's behavior is truly "extreme." Compare Green, 850 S.W.2d at 813 (finding that sexual exhibitionism--walking around in front of the child wearing only a t-shirt and speaking vulgarly--was grounds to terminate parental rights), and Smith v. Sims, 801 S.W.2d 247, 250 (Tex. App.-Houston [14th Dist.] 1990, no writ) (finding that holding a child hostage at gunpoint after murdering the child's mother was grounds to terminate parental rights); with Panozzo v. Panozzo, 904 S.W.2d 780, 784 (Tex. App.-Corpus Christi 1995, no writ) (holding that the possibility that the parent might transport the children outside the court's jurisdiction, including outside the United States, was not grounds to terminate parental rights); Thompson, 827 S.W.2d at 567 (holding that failure to pay child support and interference with the child's educational development by taking the child out of pre-school and visiting the child during elementary school was not grounds to terminate parental rights); and Walker v. Showalter, 503 S.W.2d 624, 626 (Tex. App.-Houston [1st Dist.] 1973, no writ) (holding that thirteen-year-old child stating, in general terms, that she would rather not ever see or visit with the other parent again, was not grounds to terminate parental rights).

In the present case, there is insufficient evidence to establish that Ms. Ahmed's behavior constituted "extreme" grounds meriting a denial of access and visitation rights. The most damaging piece of evidence presented by Dr. Rashid is the audio tape in which Ms. Ahmed is heard threatening to do harm to herself and the two children, M.S.R. and S.R. This is hardly stable and appropriate behavior, but even indulging all assumptions in favor of affirming the trial court--assuming that the tape is properly authenticated ⁽³⁾ and that Ms. Ahmed was not merely "joking," as she contends--this conduct cannot be considered "extreme" under our jurisprudence.

The case law does not direct us to view a single verbal threat as "extreme grounds" meriting the denial of a parent's access and visitation rights. Sexual exhibitionism, murder, and hostage-taking have been considered extreme grounds--but a single verbal threat has not been. Green, 850 S.W.2d at 813; Sims, 801 S.W.2d at 250. There is some authority that directs courts to respond to verbal threats by denying parental rights of access and visitation, but these are cases of repeated and incessant threats, generally accompanied by an extensive history of substance abuse, mental illness, or illegal behavior. See In re C.M.B., 204 S.W.3d 886, 896-97 (Tex. App.-Dallas 2006, no pet. h.) (terminating parental rights where mother had a history of psychiatric problems and substance abuse and had, on multiple occasions, threatened to harm herself and the child). Courts have also reached similar conclusions in unpublished opinions. See e.g., In re C.S.C., No. 02-06-00254-CV, 2006 Tex. App. LEXIS 10264, at *21-22 (Tex. App.-Fort Worth November 30, 2006, no pet.) (mem. op.) (terminating mother's rights where mother, in addition to making threats towards herself and her unborn daughter, had bipolar disorder and a pattern of uncontrolled anger); Reyna v. Dep't of Family & Protective Servs., No. 01-05-00985-CV, 2006 Tex. App. LEXIS 3402, at *18 (Tex. App.-Houston [1st Dist.] April 27, 2006, no pet.) (mem. op.) (terminating mother's rights where mother had repeatedly, violently abused her children--including stabbing a child in the hand, dropping the child out of a second-story window, and hitting the child on the head with a radio--and often threatened to kill them). There is simply no evidence that Ms. Ahmed made repeated threats, nor is there evidence of an extensive history of psychological disorder or substance abuse. Therefore, although Ms. Ahmed's statements on the audio tape were troubling, they were not "extreme" as courts have assessed that term in the past. Our precedents suggest that Ms. Ahmed should be limited to supervised access and visitation rather than having her access and visitation rights halted altogether.

Indeed, we believe that the trial court appreciated that Ms. Ahmed's behavior did not constitute "extreme" grounds when it noted during the course of the trial that Ms. Ahmed was not a "bad" mother and expressly found that regular visitation and access between Ms. Ahmed and the children was in the best interest of all parties:

I want these children to get to know you better. I want these children to get to be with you. I want these children to get to know that Mom is not a bad mom and that Mom, despite the fact that [she] may have had some difficulties--Mom is going to do well and is going to have a good relationship with them.

These statements reflect the trial court's profound appreciation for the importance of parental rights of companionship, care, custody, and management. But the court's ultimate pronouncement in its order denying even supervised access and visitation to Ms. Ahmed does not similarly reflect a sensitivity to such rights. The trial court should have recognized that it is improper to order a halt to parental rights on the basis of a single verbal threat, and it does not matter whether those rights are permanently terminated, terminated for only a specified period of time, or terminated pursuant to a condition. Although we affirmed the trial court's modification of conservatorship, we cannot in turn affirm the trial court's denial of access and visitation rights to Ms. Ahmed because on this issue there is a much higher standard--"extreme" grounds--and it has not been met.

We reverse the trial court's order denying visitation and access rights.

C. Permanent Injunction

The trial court's permanent injunction prohibited Ms. Ahmed from "carrying out any activities that would be interpreted as [sic] a harassing manner." We believe that such and order is too indefinite to be enforceable and that there is no evidence to support the injunction.

The right to privacy includes the right to be free from willful intrusions into one's personal life at home and at work, and individuals may receive injunctive relief in the form of a court-issued temporary ex parte order to enforce these rights. Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex. App.-Tyler 2006, no pet.). A resulting permanent injunction must be narrowly drawn and precise. Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 287 (Tex. 2004). Injunctions should not be more comprehensive or restrictive than justified by the pleadings, evidence, and usages of equity. Adjust Video v. Nueces County, 996 S.W.2d 245, 250 (Tex. App.-Corpus Christi 1999, no pet.). They should inform the defendant of the acts restrained, without calling upon the defendant for inferences or conclusions about which persons might differ and without leaving anything for further hearing. Cross v. Chem-Air South, Inc., 648 S.W.2d 754, 757 (Tex. App.-Beaumont 1983, no writ). An injunction decree or order which is too indefinite is void. Rubin v. Gilmore, 561 S.W.2d 231, 236 (Tex. App.-Houston [1st Dist.] 1977, no writ).

In this case, the language of the trial court is not specific enough to comport with the traditionally strict standards that must be applied when drafting permanent injunctions. Cross, 648 S.W.2d at 757. The language contained in the order--restricting Ms. Ahmed from "harassing behavior" and justifying the order by citing "the conduct of Sameena Ahmed"--is overbroad and too vague to be enforceable.

Moreover, we believe that the evidence does not support an injunction. As we have noted, because the trial court did not provide findings of fact, the judgment of the trial court implies all necessary findings of fact to support itself. Schoeffler, 813 S.W.2d at 745. We may therefore assume that the injunction was issued based upon Dr. Rashid's allegations that (1) Ms. Ahmed had McAllen Police Department officers accompany her to the Rashid residence in order to enforce her visitation rights prior to the divorce decree modification, or (2) Ms. Ahmed told people at Dr. Rashid's mosque that he was a "very bad person." We may also assume that the court considered Dr. Rashid's oral testimony that Ms. Ahmed "harassed" him by checking on the school records of M.S.R. and S.R. and by sitting on an airplane flight with him.

Presuming that these are indeed the trial court's justifications for issuing a permanent injunction, we must reverse. First, it is irrelevant whether Ms. Ahmed's appearance at Dr. Rashid's residence with police officers was intended as intimidating or harassing behavior because the action was an acceptable exercise of a legal right and improper motives cannot transform lawful actions into actionable torts. Tenet Health v. Zamora, 13 S.W.3d 464, 471 (Tex. App.-Corpus Christi 2000, pet. dism'd w.o.j.) (hospital was entitled to take certain actions under its own discretion and thus the issuance of a temporary injunction was an abuse of discretion by the trial court). Second, Ms. Ahmed's reference to Dr. Rashid as a "very bad person" does not rise to the level of harassment that would justify a permanent injunction. Indeed, it would not even give rise to a claim for defamation. ABC, Inc. v. Gill, 6 S.W.3d 19, 46 (Tex. App.-San Antonio 1999, pet. denied) (holding that referring to someone as a "bad guy" is not actionable because it "is not defamatory and does not contain a verifiable assertion of fact"), overruled on other grounds by Turner v. KTRK TV, Inc., 38 S.W.3d 103 (Tex. 2000). Third, assuming that the court took Dr. Rashid's testimony into account, it was not harassment for Ms. Ahmed to examine the school records of M.S.R. and S.R. because as a managing conservator she was within her rights to do so. Tex. Fam. Code Ann. § 153.073(a)(3) (Vernon 2006). Finally, there is no evidence presented that Ms. Ahmed "harassed" Dr. Rashid on the named airplane flight; she was merely present on the airplane. It is not clear what "harassing behavior" on the part of Ms. Ahmed the trial court seeks to enjoin.

We reverse the trial court's issuance of a permanent injunction against Ms. Ahmed.

V. Conclusion

We find that the trial court did not abuse its discretion in granting the motion to modify conservatorship, and therefore we affirm with respect to this issue. We find insufficient evidence, however, to justify the termination of parental rights, and we find the permanent injunction overbroad and unenforceable. We therefore reverse with respect to these two issues. The judgment of the trial court is AFFIRMED in part and REVERSED in part.

____________________________  

GINA M. BENAVIDES,

Justice

  Dissenting Memorandum

Opinion by Justice Rose Vela.

Memorandum Opinion delivered and

filed this the 1st day of November, 2007.  

1. The dissent correctly observes that there is a notable discrepancy between the oral and written pronouncements of the trial court in this case. See dissenting opinion, part V. In oral pronouncements, the trial court stated that, "you [Ms. Ahmed] need to get [psychologically] evaluated and then I will address any other matters that need to be addressed to the Court as soon as that comes through," but the trial court did not mention the psychological evaluation in its written order nor did it set a hearing date to evaluate the results of the evaluation. This discrepancy is significant because if the denial of access and visitation rights was conditioned upon a psychological evaluation, then the trial court's order would be temporary, and this Court would lack jurisdiction. See Tex. Fam. Code Ann. § 105.001(e) (Vernon 2006) ("[T]emporary orders rendered under this section [concerning suits affecting the parent-child relationship] are not subject to interlocutory appeal."). Following the dissent's analysis, therefore, would require that we dismiss this case. Moreover, it would be unnecessary to address the merits issues in this case as the dissent does in parts I-IV of it's opinion. See dissenting opinion, parts I-IV.

We respectfully disagree with the dissent's interpretation, however, and we instead read the trial court's oral language as merely informing Ms. Ahmed that the court would consider a successful psychological evaluation to be a material and substantial change sufficient to permit her to move to modify the final order pursuant to her rights under the family code. See Tex. Fam. Code Ann. § 156.101(1)(A) (Vernon 2006). If the trial court only intended the order to be temporary, as the dissent believes, the trial court most likely would have specified a hearing date to consider the results of Ms. Ahmed's evaluation. It did not do so. Our opinion, therefore, proceeds with the understanding that the trial court issued a final, appealable judgment. Neither party disputes the finality of the order or the jurisdiction of this court.

2. Miss Ahmed argues that the testimony of the ad litem attorney regarding this incident (and others) is inadmissible because the unsworn testimony of an attorney is not evidence. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). This argument is waived, however, because no contemporaneous objection to the testimony was made at trial. Id.

3. Ms. Ahmed suggests that the tape may have been altered and argues that the introduction of the tape into evidence was improper because it was not properly authenticated. We do not address this argument because the portions of the tape recordings which the trial court relied upon to render a final order are merely cumulative of evidence which was also introduced via the sworn testimony of witnesses. See Tex. R. App. P. 44.1(a); see also Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (stating that erroneous admission is harmless if it is merely cumulative).