Chad Lee S. v. Melinda A. S. ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00135-CV
CHAD LEE S. APPELLANT
V.
MELINDA A. S. APPELLEE
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FROM THE 158TH DISTRICT COURT OF DENTON COUNTY
TRIAL COURT NO. 2012-20066-158
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MEMORANDUM OPINION1
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Appellant Chad Lee S. (Father) appeals from the trial court’s final decree
of divorce. After a trial on the conservatorship issues, the jury found that
Appellee Melinda A. S. (Mother) should be the sole managing conservator of
their child and that Father should not be possessory conservator. The trial court
heard the remaining issues and entered judgment conforming to the jury’s
1
See Tex. R. App. P. 47.4.
verdict. In four issues, Father challenges the trial court’s judgment with respect
to the conservatorship of their child. We affirm.
I. Background
Mother and Father began dating in the spring of 2008. They married in
March 2011 and had one child in October 2011 (the Child). On January 25,
2012, Mother filed a divorce petition, seeking sole managing conservatorship of
the Child. Mother also filed an application for protective order requesting, among
other things, that the trial court prohibit Father from communicating directly with
Mother or the Child and from coming within 200 feet of them.
Father filed a general denial and counterpetition for divorce and temporary
orders. On February 8, 2012, the trial court entered agreed interim orders
enjoining both parties from communicating with each other directly and from
going within 200 feet of the other party’s residence or place of employment. The
agreed temporary orders also enjoined Father from taking or attempting to take
the Child from Mother and ordered that the Child remain in Mother’s exclusive
possession and control pending a temporary hearing.
After a hearing on February 29, 2012, the trial court entered temporary
orders appointing both parties as temporary joint managing conservators of the
Child, with Mother having the exclusive right to determine the Child’s primary
residence. The trial court awarded Father possession of the Child for two hours
every Tuesday and Thursday and for four hours every Sunday. The temporary
2
orders specified that the Child was to be surrendered to Father at Mother’s
residence and that Father was to return the Child to Mother at her residence.
On October 26, 2012, Father filed a motion to modify the temporary orders,
alleging that Mother and Mother’s parents were videotaping the exchanges of the
Child “while attempting to provoke a negative reaction from [Father]. As such,
the present orders relating to the exchange of the [C]hild have become
unworkable and are no longer in the best interest of the [C]hild.” Father asked
the trial court to order the parties to exchange possession at a police station
rather than Mother’s residence. Father amended his motion to modify on April
24, 2013, requesting that the trial court allow Father to designate a competent
adult to pick up the Child because Mother would not allow anyone other than
Father to pick up the Child and increase his periods of possession and access
because Mother refused to allow him possession and access to the Child beyond
the periods awarded to Father in the temporary orders.
After a hearing on April 29, 2013, the trial court entered modified
temporary orders increasing Father’s periods of possession to four hours on
Tuesdays and Thursdays and to eight hours on Sundays. Both parties were
permitted to designate a competent adult to pick up and drop off the Child. The
modified temporary orders also outlined a procedure for surrender and return of
the Child at Mother’s residence that prevented Mother and Father from having
any direct contact with each other.
3
Over the course of five days in August 2013, the parties tried the
conservatorship issue to a jury. Mother’s live petition requested that she be
appointed as sole managing conservator of the Child and that Father not be
named as possessory conservator. The jury found that Mother should be
appointed managing conservator and that Father should not be possessory
conservator.
Immediately after the jury returned the verdict, the trial court announced
that in light of the jury’s findings, it was suspending all temporary orders and
entered an order stating that Father not have possession of or access to the
Child pending the entry of a final divorce decree. Father moved for a judgment
non obstante verdicto (JNOV), asserting that the evidence was legally and
factually insufficient to support the jury’s verdict on possessory conservatorship
and that the trial court erred in revoking Father’s right to possession of and
access to the Child based on that finding. See Tex. R. Civ. P. 301. The trial
court denied the motion.
The trial court heard the child support and property division issues on
September 17, 2013. On October 29, 2013, the trial court entered a final divorce
decree, which incorporated the jury’s verdict, denied Father conservatorship of,
access to, and possession of the Child, ordered Father to pay child support, and
divided the marital property.
Father timely filed a motion for new trial, arguing in part that family code
sections 105.002(c) and 153.191 were unconstitutional as applied to him. See
4
Tex. Fam. Code Ann. §§ 105.002(c), 153.191 (West 2014); Tex. R. Civ. P. 320,
329b. He contended that
[b]ecause of the [parental] right’s elevated status, the standard of
proof is elevated from “preponderance of the evidence” to “clear and
convincing evidence.” . . .
....
The application of Section 153.191 to [Father] in this case and
the court’s ruling is a denial of constitutional rights of due process in
that the court’s ruling operates as a de facto termination of the
parental rights of [Father] to care for, control, educate and manage
the upbringing of his child with a lower standard of proof than that
required by Section 161.001 Texas Family Code and the United
States Constitution, which requires proof by clear and convincing
evidence that a parent has committed any of a number of acts listed
in the statute.
On January 17, 2014, the trial court granted Father a new trial as to
conservatorship on the sole ground that Father’s
due process rights under the 14th Amendment of the United States
Constitution and Article I, Section 19 of the Texas Constitution were
violated when the jury did not name [him] a possessory conservator
in Question #5 of the jury charge, creating a de facto termination
under a preponderance of the evidence standard, rather than a clear
and convincing standard.2
On the same date, the trial court also entered an interim order granting Father
limited access to the Child.
Mother filed a petition for writ of mandamus in this court, asserting that the
trial court acted arbitrarily and abused its discretion by disregarding the jury’s
2
The trial court signed an identical order granting Father’s motion for new
trial on January 24, 2014.
5
verdict and ordering a new trial because the trial court’s stated reason for
granting a new trial was legally inappropriate. See In re United Scaffolding, Inc.,
377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding) (holding a trial court
does not abuse its discretion if its stated reason for granting a new trial is legally
appropriate and is specific enough to indicate that the trial court “derived the
articulated reasons from the particular facts and circumstances of the case at
hand”). We agreed with Mother, stating
While the trial court’s reason here is specific, it is not a legally
appropriate reason. The trial court’s order granting a new trial based
on Father’s “de facto” termination argument violates section
105.002(c)(1)(C) of the family code, which provides that a trial court
may not “contravene a jury verdict” on the issue of the appointment
of a possessory conservator. The order also ignores the different
burdens of proof in custody and termination cases. Finally, the trial
court’s order overlooks the law that allows a parent, even a
nonconservator like Father, to seek modification of a
conservatorship order and that gives a trial court discretion to grant
modification if it is in the child’s best interest and the parent’s or
child’s circumstances have materially and substantially changed
since the order was rendered. It is this law that differentiates Father
from parents whose relationships with their children have been
permanently severed, and it is this law that provides Father and
other similarly situated parents due process.
In re M.S., No. 02-14-00079-CV, 2014 WL 1510059, at *2 (Tex. App.—Fort
Worth Apr. 17, 2014, orig. proceeding [mand. denied]) (mem. op.) (citations
omitted). We granted Mother’s petition and directed the trial court to vacate its
orders granting Father’s motion for new trial as well as its interim order granting
Father access to the Child. See id. The trial court promptly vacated the orders
6
and re-entered its original final divorce decree. This decree is the subject of this
appeal.
II. Denial of Father’s Motion for JNOV
In the first part of his first issue, Father contends the trial court erred by
denying his motion for JNOV because family code section 105.002(c) did not
prevent the trial court from contravening the jury’s verdict not appointing Father
as possessory conservator. See Tex. Fam. Code Ann. § 105.002(c). Section
105.002(c)(1)(C) provides that a trial court “may not contravene a jury verdict on
the issue[] of . . . the appointment of a possessory conservator.” Id.
§ 105.002(c)(1)(C). Father argues that because “non-appointment is not
addressed in the statute, the trial court was free to contravene the jury’s finding.”
“Statutory construction is a legal question that we review de novo,
ascertaining and giving effect to the Legislature’s intent as expressed by the plain
and common meaning of the statute’s words.” F.F.P. Operating Partners, L.P. v.
Duenez, 237 S.W.3d 680, 683 (Tex. 2007) (citing Tex. Dep’t of Transp. v. City of
Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)). Section 105.002(c)(1)(C)
states that the trial court may not contravene a jury verdict on the issue of the
appointment of a possessory conservator. See Tex. Fam. Code Ann.
105.002(c)(1)(C). The “issue[] of . . . the appointment of a possessory
conservator” necessarily includes both the appointment and “non-appointment” of
a parent as possessory conservator. The jury decided this issue against Father.
Thus, under the plain language of section 105.002(c)(1)(C), the trial court could
7
not grant Father’s motion for JNOV. See M.S., 2014 WL 1510059, at *2
(concluding that order granting Father a new trial based on “de facto” termination
argument violated section 105.002(c)(1)(C)). Accordingly, we overrule this
portion of Father’s first issue.
III. Sufficiency of the Evidence Supporting
the Jury’s Conservatorship Findings
In the latter portion of his first issue and in his second issue, Father argues
there is no evidence to support the jury’s findings that he should not be appointed
joint managing conservator or possessory conservator of the Child.
A. Standard of Review
When, as here, no objection was made to the jury charge, the sufficiency
of the evidence is reviewed in light of the charge submitted. Romero v. KPH
Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005). We may sustain a legal
sufficiency challenge only when (1) the record discloses a complete absence of
evidence of a vital fact; (2) the court is barred by rules of law or of evidence from
giving weight to the only evidence offered to prove a vital fact; (3) the evidence
offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence
establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co.
v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040
(1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of
Error, 38 Tex. L. Rev. 361, 362–63 (1960). In determining whether there is
legally sufficient evidence to support the finding under review, we must consider
8
evidence favorable to the finding if a reasonable factfinder could and disregard
evidence contrary to the finding unless a reasonable factfinder could not. Cent.
Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller
v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).
Anything more than a scintilla of evidence is legally sufficient to support the
finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);
Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered
to prove a vital fact is so weak as to do no more than create a mere surmise or
suspicion of its existence, the evidence is no more than a scintilla and, in legal
effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.
2003), cert. denied, 541 U.S. 1030 (2004) (citing Kindred v. Con/Chem, Inc., 650
S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists if the
evidence furnishes some reasonable basis for differing conclusions by
reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l
Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).
The burden of proof in conservatorship cases is by a preponderance of the
evidence. Tex. Fam. Code Ann. § 105.005 (West 2014); see In re W.M., 172
S.W.3d 718, 724 (Tex. App.—Fort Worth 2005, no pet.) (“The burden of proof in
conservatorship cases, as opposed to termination cases, is a preponderance of
the evidence.”).
9
B. Appointment of Joint Managing Conservator
Family code section 153.131(a) provides that both parents shall be
appointed as joint managing conservators of a child unless the court finds that
appointment of the parents would not be in the best interest of the child because
the appointment would significantly impair the child’s physical health or emotional
development. Tex. Fam. Code Ann. § 153.131(a) (West 2014). A rebuttable
presumption exists that it is in a child’s best interest for his parents to be named
his joint managing conservators. Id. § 153.131(b) (West 2014). Father asserts
that the jury’s finding that he should not be appointed as joint managing
conservator implied that Mother rebutted the presumption that he should be
appointed as such. Father argues this finding is not supported by the evidence.
A finding of a history of family violence removes the presumption that
appointment of a child’s parent as joint managing conservator is in the child’s
best interest. Id. With regard to the appointment of managing conservator, the
jury was instructed in pertinent part as follows:
In determining whether to appoint a party sole or joint
managing conservator, you shall consider evidence of the intentional
use of abusive physical force by a party against his or her spouse,
against a parent of the child, or against any person younger than
eighteen years of age committed within a two-year period preceding
the filing of the suit or during the pendency of the suit.
A person may not be appointed a joint managing conservator
if that person has a history or pattern of past or present child neglect
or of physical or sexual abuse directed against a parent, a spouse,
or a child.
10
Mother testified that Father was physically abusive towards her both prior
to and during their marriage, but as to the events occurring prior to their
marriage, Mother did not specify when they occurred.3 Mother testified that
during an argument shortly after their wedding ceremony in Mexico in March
2011, Father pushed her and pushed at her stomach even though she was
pregnant with the Child. Mother further stated that Father never hit her during
her pregnancy, but he pushed her, pushed at her stomach, and threw things at
her. Shortly after Mother gave birth to the Child, Father bit Mother during an
argument over whether Father should take the Child to a birthday party. Mother
was holding the Child at the time, and Father attempted to pull the Child away
from her.4
Mother testified that in the eight months from the beginning of the marriage
until they separated and Mother filed for divorce, Father physically assaulted her
“too many [times] to even count.” Father left bruises and bite marks on Mother.
Mother’s friend, K.M., testified that while Mother and Father were married but
before they were separated, she observed bruises on Mother’s arm. After
Mother and Father separated, Mother told K.M. that Father had caused the
bruises. Mother never told K.M. that Father hit her. But prior to the separation,
3
Before they were married, Father pushed and shoved her, pushed her to
the ground, raised his fist to her and said, “Don’t make me do something I will
regret,” locked her in her bedroom, and pushed her out of his vehicle.
4
Mother’s two children from a previous marriage, who lived with Mother
and Father after their marriage, witnessed this event, as well as other instances
of Father physically abusing Mother after the marriage.
11
Mother told K.M. that she was scared of Father and talked about “some of the
physical abuse.” K.M. never saw Father become physically violent with Mother,
nor did she ever see or hear him threaten Mother.
Mother further testified that she fled the marital residence in January 2012
after an argument over the telephone with Father during which he threatened,
“I’m leaving work and this time I’m going to come home and show you what I
mean.” Mother interpreted this as a physical threat and left before Father got
home. Mother spent the night at her parents’ house. During the early morning
hours, Father began banging on the door and yelling. Mother cracked open the
door, and Father barged into the house. He pushed Mother, yelled, called her
names, and accused her of hijacking his son. Mother was afraid and asked
Father to leave, but he refused until she called 911.
Two days later, Mother returned to the marital residence because Father
promised to change his behavior and because she wanted to save their
marriage. Mother testified that Father’s behavior was erratic and controlling; he
dictated how Mother was to sit and how she was to hold his hand and would not
allow Mother to leave the residence alone. That night, Mother chose to sleep in
one of her older children’s rooms upstairs so she could be close to the Child.
Father woke Mother in the middle of the night, angry that she was not sleeping
with him in his bed and yelling at her that she was to be down in his room and “to
do what she was told.” When Mother refused, Father continued to yell at her and
pushed her. Mother was fearful and called the police. The police arrived and
12
waited with Mother while she packed some items before leaving the marital
residence for the last time.
Mother testified that Father never physically harmed her children when
they lived with Father. But she also testified that Father spanked her oldest child
so hard that it left a welt. Without elaboration, she stated that Father was very
rough with the Child.
Mother admitted that she married Father despite his abusive behavior.
She also admitted that she never called the police prior to their separation and
that she never brought charges against Father. Father denied that he ever hit or
pushed Mother and testified that Mother often instigated physical violence in the
home. According to Father, Mother pushed or charged him using the Child as a
buffer “dozens” of times.
“Jurors are the sole judges of the credibility of the witnesses and the
weight to give their testimony. They may choose to believe one witness and
disbelieve another.” City of Keller, 168 S.W.3d at 819 (footnote omitted). Here,
the jury could have believed Mother’s testimony regarding Father’s physical
abuse and disbelieved Father. There was more than a scintilla of evidence that
Father had a history or pattern of physical abuse directed against Mother.
Therefore, we hold that the evidence was legally sufficient to support the jury’s
finding that Father should not be appointed as joint managing conservator of the
Child.
13
C. Appointment of Possessory Conservator
Family code section 153.191 provides that a parent who is not appointed
as a sole or joint managing conservator shall be appointed as a possessory
conservator unless the court finds that the appointment is not in the best interest
of the child and that parental possession or access would endanger the physical
or emotional welfare of the child. Tex. Fam. Code Ann. § 153.191. Father
asserts that the jury’s finding that he should not be appointed as possessory
conservator implies that the jury found that such an appointment was not in the
Child’s best interest and that Father’s possession or access would endanger the
Child’s physical or emotional welfare. Father argues the evidence is legally
insufficient to support these findings.
The jury was instructed on possessory conservatorship as follows:
A parent may not be allowed access to a child if the parent
has a history or pattern of committing family violence during the two
years preceding the date of the filing of the suit or during the
pendency of the suit unless awarding access to the child would not
endanger the child’s physical health or emotional welfare and would
be in the child’s best interest.
“Family violence” means an act by a member of a family
against another member of the family that is intended to result in
physical harm.
....
“Possessory conservator of a child” means the person or
persons appointed to have possession of or access to the child at
specified times and upon certain conditions. In addition to the rights
and duties listed above that a parent named a conservator has at all
times or during periods of possession of the child, subject to any
limitations imposed by court order on those rights and duties, a
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parent appointed possessory conservator has any other right or duty
of a managing conservator expressly granted to that parent in the
decree appointing that parent a possessory conservator.
....
If, in answer to Question 1, you have not named [Father]
managing conservator of the child, then answer Question 5.
Otherwise, do not answer Question 5.
QUESTION 5:
Should [Father] be named possessory conservator of the child?
A parent who is not appointed managing conservator shall be
appointed possessory conservator unless the appointment is not in
the best interest of the child and possession or access by the parent
would endanger the physical or emotional welfare of the child. A
parent who is not appointed managing or possessory conservator
may be ordered to perform other parental duties, including paying
child support. Therefore, answer the following question “Yes” unless
you find from a preponderance of the evidence that appointment of
[Father] is not in the best interest of the child and that possession or
access by [Father] would endanger the physical or emotional welfare
of the child.
Answer “Yes” or “No.”
The jury answered “no.”
Dr. Kelly Goodness, who was appointed by the trial court to evaluate
Father’s psychological condition, testified that in 1993, Father incurred a frontal
lobe brain injury that affects his behavior. The injury causes Father to act
impulsively, inhibits his memory capability and his ability to interpret people’s
body language and what they are saying, and prevents him from fully recognizing
his deficits and from “presenting favorably” to others, which likely affects his
ability to maintain steady employment. Dr. Goodness also stated that Father has
15
problems with impulse and anger control, which likely played a role in his criminal
history, which includes a revocation of probation for failing a drug test and
convictions for driving while intoxicated, resisting arrest, burglary of a habitation,
assault, possession of prohibited weapons, and interfering with an emergency
call. According to Dr. Goodness, Father’s deficit may affect his ability to parent
because he may have a lower frustration tolerance when the Child acts out or
cries, have trouble remembering what needs to be done, be quick to anger, use
bad language, and lack problem-solving abilities.
Dr. Goodness testified that Father’s brain deficit is not huge, but it must be
considered when developing a parenting plan. Both parents should participate in
the parenting of a child unless it is detrimental to the child, and Dr. Goodness
stated that she believed Father “needs the opportunity to parent his child. His
deficits are not significant enough that he should be prevented from doing that.”
Dr. Goodness testified that Father showed signs of recovery from his brain
injury but had not made a complete recovery; his condition probably will not
improve. Father’s mother does not accept that Father has any deficits. Father
also does not believe or recognize he has any deficits remaining from his brain
injury.
Dr. Goodness recommended that Father consult with a psychiatrist for
medication and see a counselor once or twice a month. While counseling would
not eradicate Father’s lack of insight, his difficulty recognizing social cues, or his
low-frustration tolerance, it might help him in recognizing and addressing these
16
issues. Dr. Goodness referred Father to a licensed professional counselor in her
office, but Father did not follow up on her recommendation. She had not seen
Father since she completed her evaluation and filed her report with the court, and
Father did not follow her suggestion that he make an appointment with her office
to review his test results.
Mother admitted that Father had bonded with and had a close relationship
with her two children from her previous marriage. Father helped with the day-to-
day care of the children and played with them. Mother testified that Father “did a
lot” for the children and that “she trusted [Father] to be heavily involved” in her
children’s lives, but she did not want him heavily involved in raising the Child.
Several Father’s Day and anniversary cards in which Mother expressed her love
and appreciation for Father were admitted into evidence. Mother stated that she
gave these cards to Father because she wanted their relationship to work.
Mother testified that over time, she became fearful of Father and became
more fearful of him after the marriage because Father’s behavior escalated. In
addition to being physically abusive, Father was emotionally abusive. For
example, during their altercation in Mexico, Father told Mother she could do what
she wanted with the baby and threatened to leave her there. After the marriage,
Father would call Mother names in front of her children and tell her children that
Mother was ungrateful, selfish, and a horrible “C word.”5
5
It is apparent from Mother’s testimony that Father used the actual term
when referring to her.
17
Father had frequent emotional outbursts during which he would yell and
curse at the children and belittle Mother. During a disagreement over her
children’s safety while riding four-wheelers with Father, he told Mother to “do as
you’re told, get the F out, [and] I’ll do what I want.” Mother would call her parents
when she and Father argued, and Father told Mother on several occasions, “if
you’re going to call your dad, then I’m going to shoot him for trespassing. Tell
your dad I’m going to shoot your dad.” When Mother fled the marital residence,
Father told her she needed a shock collar like a dog.
Mother’s parents’ neighbor, E.H., was inside their house during some of
the custody exchanges. On at least two or three occasions, E.H. heard Father
tell Mother that if her father were there, Father would kill him.
J.S., who lives down the street from Mother’s parents, witnessed Father
arriving at Mother’s parents’ house to pick up the Child. Father came speeding
up the street and grabbed the Child (who was three months old at the time) from
Mother’s arms. The Child was screaming, and when Mother told Father that the
Child needed his pacifier, Father responded, “No, he doesn’t, bitch.” Mother did
not respond. Father put the Child into the baby seat in his car and, without taking
any time to buckle him in, slammed the car door and sped off.
Mother’s father, C.C., recounted two incidents in which Father threatened
him. C.C. was out on a walk around his neighborhood when he encountered
Father running in the opposition direction. Father turned around and began
walking beside C.C. C.C. felt scared. Father commented that C.C. did not have
18
his phone with him, called C.C. and Mother names, and told C.C., “If I ever—if
you ever stiff me again, I’m going to bash your head in.” C.C. started walking
towards a nearby school and told Father that he was going to call the police
when he got there. Father ran off.
C.C. also recounted an incident during which Father followed C.C. and
Mother’s mother while they were driving in their neighborhood. Afraid, C.C.
pulled into a golf course maintenance area where he knew other people would
be. As Father drove by, he rolled down his window and said to C.C., “What’s up,
asshole?” C.C. waited for about ten minutes before leaving the golf course to
return home. Father immediately started following the couple again.
Father recorded part of this incident, and the video was played to the jury.
The video begins as C.C. is turning out of the golf course maintenance area and
onto the street. It appears from the video that Father was waiting for C.C. to
leave. The video shows Father following C.C. very closely after C.C. left the golf
course. Father, in his narration on the video, claims the video is an example of
how C.C. follows him around town and harasses him. On cross-examination,
Father admitted that he drove by the golf course and called C.C. an asshole, and
he insisted that the video exemplified how C.C. followed him and harassed him.
Father testified that he loved Mother and her children so much that he sold
his interest in his family’s ranch—against his dying father’s wishes—to purchase
a home for them. Father confirmed that he helped in the day-to-day care of
19
Mother’s children and played with them. He also attended their sports practices
and games and parent-teacher conferences and PTA meetings with Mother.
Father admitted to the criminal history described by Dr. Goodness. Most
recently, Father received citations for operating a boat with two children under
the age of thirteen (his nieces) onboard who were not wearing life jackets. He
admitted to using illegal drugs as an adult, including marijuana,
methamphetamine, cocaine, and mushrooms. Father also recounted the events
leading up to his assault conviction. When Father and a friend were out driving
one day, they saw R.B.—a man who allegedly raped Father’s sister thirteen
years earlier but was not charged—outside of R.B.’s home. Father got out of his
car and assaulted R.B. Father admitted that he initiated contact with R.B. and
said that pent-up anger led to the assault.
Father also admitted that he engaged in behavior designed to alienate the
Child from Mother and her family by speaking negatively about Mother in front of
the Child. Two videos of custody exchanges were played for the jury. In the first,
when Mother handed the Child to Father, he remarked, “You have one of your
Mommy’s cold sores, it looks like.” As he walked to his car, Father asked the
Child, “Did Mommy give you herpes?” Father then yelled from the curb, “Is it
herpes, [Mother]? Do you know? Have you had it checked?” In the second, as
he took the Child to his car, he asked, “Are you going to . . . meet your new
20
Mommy?”6 and tells the Child, “Say goodbye to those people,” i.e., Mother and
Mother’s family.
While Father denied Mother’s accusations of physical and emotional
abuse, he admitted to having physical altercations with her in the past, as well as
during some of the custody exchanges. He denied that any of the physical
altercations involved him pushing Mother away or pulling the Child away from
Mother.
The jury viewed video recordings of some of the custody exchanges. In
one, Father was returning the Child to Mother. Mother reached for the Child
repeatedly, but Father kept backing away and pushed Mother away with his
elbow. The Child started to cry. Father denied that the video showed him
elbowing Mother away.
The next video also showed Father returning the Child to Mother. Mother
reached for the Child repeatedly, and Father pushed her away while asking
about the Child’s diaper rash. The Child started to cry. C.C. was also present.
After Father eventually handed the Child to Mother, Father advanced towards
C.C. and said, “[C.C.], go inside. Quit threatening me.” C.C. remained stationary
and said, “I’m not threatening you, [Father].” Father kept advancing towards C.C.
and said, “Quit threatening me. Please get out, please, please get out of my
face.” Father denied that the video showed him pushing Mother and acting
6
The Child’s “new mommy” was Father’s longtime girlfriend.
21
aggressively. Father testified that he thought his conduct was appropriate in both
videos.
Father’s mother testified that Father was “patient and kind and loving” with
the Child. During his periods of possession, Father was observant of the Child’s
needs, insisted that the Child eat healthy foods, and took care of the Child,
including changing his diapers. Father also played with the Child, took him
swimming and boating, and read to him. She testified that the Child had bonded
with Father, loved Father, followed Father around during visits, and wanted only
Father to hold him. She had no concerns about the way Father cared for the
Child, but she was concerned about Mother’s parenting skills because of her
volatile behavior.
Father’s mother testified that Father sought counseling after receiving Dr.
Goodness’s recommendation but did not know if he was still attending counseling
or for how long he did so. She confirmed that Father was not seeking medication
as Dr. Goodness recommended.
Because “best interest” and “endanger” were undefined in the charge, we
look to the terms’ commonly understood meanings in our sufficiency review. See
Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); EMC Mortg. Corp. v. Jones,
252 S.W.3d 857, 869 (Tex. App.—Dallas 2008, no pet.). A common meaning of
“best” is “providing or offering the greatest advantage, utility, or satisfaction,” and
the common meaning of “interest” is “the state of being concerned or affected
esp. with respect to advantage or well-being.” Webster’s Third New International
22
Dictionary 208, 1178 (2002). “Endanger” is defined as “imperil or threaten
danger to.” Id. at 748.
Again, “[j]urors are the sole judges of the credibility of the witnesses and
the weight to give their testimony. They may choose to believe one witness and
disbelieve another.” City of Keller, 168 S.W.3d at 819 (footnote omitted). Father
loves, has bonded with, and wants to parent the Child, and Dr. Goodness
testified that Father should be allowed to parent the Child. But Dr. Goodness
also testified that Father did not recognize that he had a mental deficit, and the
evidence showed that Father was not following her recommendations regarding
counseling and medication. The evidence showed that Father had a volatile
personality, was quick to anger, lacked impulse control, and was unable or
unwilling to recognize that his behavior was physically aggressive, even when
confronted with video recordings of the incidents. Father had a criminal history,
including assault and operating a boat without ensuring that the children onboard
were wearing life vests, and had a history of physically and emotionally abusing
Mother, sometimes in front of the Child. Father admitted to engaging in specific
instances of behavior designed to alienate the Child from Mother and her family,
videos of which were played for the jury.
Applying the applicable standard of review, we conclude that there was
more than a scintilla of evidence to support the jury’s conclusion that
appointment of Father as possessory conservator was not in the best interest of
the Child and that access to or possession by Father would endanger the Child’s
23
physical or emotional welfare. Accordingly, we overrule the remainder of
Father’s first issue and his second issue.
IV. Father’s Access to and Possession of the Child
In his third issue, Father asserts that even if family code section 105.002(c)
prevented the trial court from contravening a jury verdict and regardless of
whether the jury appointed Father as possessory conservator, the trial court was
not prohibited from granting Father access to or possession of the Child. Section
105.002(c)(1) entitles a party to a jury verdict on the issue of appointment of a
possessory conservator, see Tex. Fam. Code Ann. § 105.002(c)(1)(C), but
section 105.002(c)(2)(B) prohibits a trial court from submitting a jury question on
the issue of a specific term or condition of possession of or access to a child, id.
§ 105.002(c)(2)(B). Father argues the trial court abused its discretion by denying
him access to or possession of the Child based upon the jury’s finding that
Father should not be appointed as possessory conservator, see id., thereby
imposing restrictions or limitations on his possession and access that exceed
what is required to protect the Child’s best interest, see id. § 153.193 (West
2014). Father further argues that a “complete denial of access should be rare,”
In re Walters, 39 S.W.3d 280, 287 (Tex. App.—Texarkana 2001, no pet.), and
reserved only for “the most extreme of circumstances,” In re E.N.C., No. 03-07-
00099-CV, 2009 WL 638188, at *15 (Tex. App.—Austin Mar. 13, 2009, no pet.)
(mem. op.).
24
A. Standard of Review
The best interest of the child shall always be the primary consideration of
the court in determining the issues of possession of and access to the child. Tex.
Fam. Code Ann. § 153.002 (West 2014). We review a trial court’s order
regarding possession and access for an abuse of discretion. See Green v.
Green, 850 S.W.2d 809, 811–12 (Tex. App.—El Paso 1993, no writ). A trial court
abuses its discretion if the court acts without reference to any guiding rules or
principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221
S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.
2004). Under an abuse of discretion standard, challenges to the legal or factual
sufficiency of the evidence are not independent grounds of error; rather, they are
simply factors in assessing whether the trial court abused its discretion. Gardner
v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.).
In determining whether there has been an abuse of discretion because the
evidence is legally or factually insufficient to support the trial court’s decision, we
engage in a two-pronged inquiry: (1) Did the trial court have enough information
upon which to exercise its discretion; and (2) did the trial court err in applying its
discretion? W.M., 172 S.W.3d at 725; In re T.D.C., 91 S.W.3d 865, 872 (Tex.
App.—Fort Worth 2002, pet. denied). The traditional sufficiency review comes
into play with regard to the first question. W.M., 172 S.W.3d at 725; T.D.C., 91
S.W.3d at 872. With regard to the second question, we determine, based on the
25
elicited evidence, whether the trial court made a reasonable decision. W.M., 172
S.W.3d at 725; T.D.C., 91 S.W.3d at 872.
B. Analysis
The final decree stated that Father “shall not exercise, or attempt to
exercise, possession of or access to the [Child].” The trial court has wide latitude
to determine whether a parent should have possession of and access to a child,
and we should not disturb a reasonable decision made within its discretion. See
In re J.E.P., 49 S.W.3d 380, 386 (Tex. App.—Fort Worth 2000, no pet.). The
family code mandates that “the terms of an order that denies possession of a
child to a parent or imposes restrictions or limitations on a parent’s right to
possession of or access to a child may not exceed those that are required to
protect the best interest of the child.”7 Tex. Fam. Code Ann. § 153.193. While a
jury may determine conservatorship issues, the trial court has the discretion to
determine the specific terms and conditions of access and possession.8 See id.
7
Even though section 153.193 does not envision a complete denial of
access, “a severe restriction or limitation, even one that amounts to a denial of
access, is permissible if it is in the best interest of the child” because the best
interest of the child is the primary consideration in determining issues of
possession and access. In re Walters, 39 S.W.3d 280, 286 n.2 (Tex. App.—
Texarkana 2001, no pet.) (citing Tex. Fam. Code Ann. § 153.002).
8
During oral argument, Mother argued that section 153.193 did not apply
because the section is under a subchapter entitled “Parent Appointed as
Possessory Conservator.” Thus, in order for the limitations in section 153.193 to
apply, Father must have been appointed as possessory conservator. But the
language of section 153.193 does not limit its application to parents appointed as
possessory conservators. Compare Tex. Fam. Code Ann. § 153.193 (“The terms
of an order that denies possession of a child to a parent or imposes restrictions
26
§§ 105.002(c)(2)(B); 153.193; cf. Walters, 39 S.W.3d at 290 (holding parent was
only entitled to a jury verdict on conservatorship).
Father contends the trial court abused its discretion because there was no
evidence to support the trial court’s decision to deny Father access to or
possession of the Child. He points out that orders completely denying a parent
access to a child when there are no extreme grounds to support the order are
frequently reversed and remanded for the trial court’s reconsideration and
determination of the appropriate amount and type of access and any necessary
conditions. See, e.g., Fish v. Lebrie, No. 03-09-00387-CV, 2010 WL 5019411, at
*8–11 (Tex. App.—Austin Dec. 10, 2010, no pet.) (mem. op.); E.N.C., 2009 WL
638188, at *15–18; Walters, 39 S.W.3d at 287. He urges us to do the same
here. The primary cases relied upon by Father, however, all concern parents
who were appointed as conservators. See Fish, 2010 WL 5019411, at *1 (stating
that father was joint managing conservator); E.N.C., 2009 WL 638188, at *14
(stating that mother was possessory conservator); Walters, 39 S.W.3d at 287
(“[T]he trial court appointed Deborah possessory conservator, which implies a
or limitations on a parent’s right to possession of or access to a child may not
exceed those that are required to protect the best interest of the child.”) with id.
§ 153.192(a) (West 2014) (“Unless limited by court order, a parent appointed as
possessory conservator of a child has the rights and duties provided by
Subchapter B and any other right or duty expressly granted to the possessory
conservator in the order.”) and id. § 153.192(b) (West 2014) (“In ordering the
terms and conditions for possession of a child by a parent appointed possessory
conservator, the court shall be guided by the guidelines in Subchapter E.”). The
heading of a subchapter does not limit or expand the meaning of a statute. Tex.
Gov’t Code Ann. § 311.024 (West 2013).
27
finding that any danger she poses to Christopher’s physical or emotional welfare
can be remedied by an order that restricts her access or possession.”). There is
a distinction between cases in which the trial court appoints a parent as a
conservator but denies the parent any possession of and access to the child and
a case such as this one in which the jury finds that the parent should not be
appointed as possessory conservator, implicitly finding that possession and
access would endanger the child’s physical or emotional welfare and are not in
his best interest.9
Here, the jury found that Father should not be appointed as possessory
conservator, and as we explained above, the evidence was legally sufficient to
support the jury’s implicit findings that appointment of Father as possessory
conservator was not in the Child’s best interest and that Father’s possession and
access would endanger the Child’s physical or emotional welfare. The trial court
9
Green is the only case we have found in which an appellate court affirmed
the trial court’s complete denial of access in the context of a divorce. See 850
S.W.2d at 810–11, 813. Unlike the cases relied upon by Father, the father in
Green was not appointed as conservator. Id. at 811. The appellate court
concluded that the evidence was legally and factually sufficient to support the
trial court’s finding that it was in the child’s best interest not to appoint the father
as possessory conservator and not to give him access to or possession of the
child. Id. at 812–13. But there are cases upholding the complete denial of
access in the termination context when the parent’s rights have not been
terminated. See, e.g., J.C. v. Tex. Dept. of Family & Protective Servs., No. 03-
12-00670-CV, 2013 WL 1405892, at *8 (Tex. App.—Austin Apr. 3, 2013, no pet.)
(mem. op.) (holding that trial court did not abuse its discretion in denying father
visitation and access to children “at this time”); In re W.H.M., No. 01-00-01396-
CV, 2003 WL 22254713, at *9–10 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003,
pet. denied) (mem. op.) (upholding jury’s implied findings that allowing father any
access to child would endanger the child’s physical or emotional welfare).
28
had discretion to determine the specific terms and conditions of access. See
Tex. Fam. Code Ann. § 153.193. In light of the jury’s implicit findings, we are
unable to conclude that the trial court abused its discretion by denying Father
possession of and access to the Child. See id. Accordingly, we are constrained
to overrule Father’s third issue.
V. De Facto Termination
In his fourth issue, Father alternatively argues that if section 105.002(c)
permitted the jury to deny access and possession as well as conservatorship,
then family code sections 105.002(c) and 153.191 operated in concert
unconstitutionally as applied to him because these sections allowed the jury to
effectuate a de facto termination of his parental rights under a preponderance of
the evidence standard. As we stated in our opinion granting Mother’s mandamus
petition, the burden of proof in a custody case differs from that in a termination
proceeding. See M.S., 2014 WL 1510059, at *2 (citing In re J.A.J., 243 S.W.3d
611, 616 (Tex. 2007) (contrasting the quantum of proof required to support
termination from that required to support a conservatorship decision); Tex. Fam.
Code Ann. § 105.005 (providing that findings must be based on a preponderance
of the evidence unless otherwise provided by title 5 of the family code); Tex.
Fam. Code Ann. § 161.001(b) (West Supp. 2015) (stating that evidence
supporting findings in termination proceedings must be clear and convincing)).
Father, even though he was not appointed conservator, can seek modification of
the conservatorship order, and the trial court has discretion to grant the
29
modification if it is in the child’s best interest and the parent’s or child’s
circumstances have materially and substantially changed since the order was
rendered. See id. (citing Tex. Fam. Code Ann. §§ 102.003(a)(1), 156.001–.002,
156.101 (West 2014 & Supp. 2015)). “It is this law that differentiates Father from
parents whose relationships with their children have been permanently severed,
and it is this law that provides Father and other similarly situated parents due
process.” Id. (citing J.A.J., 243 S.W.3d at 617 (rejecting parent’s argument that
requiring separate challenges to conservatorship decisions and termination
orders will result in the de facto termination of parental rights for parents who win
their termination appeals and noting that the family code “guards against that
possibility,” citing sections 102.003, 156.001, and 156.101 of the family code)).
Accordingly, we overrule Father’s final issue.
VI. Conclusion
Having overruled each of Father’s four issues, we affirm the trial court’s
judgment.
/s/ Anne Gardner
ANNE GARDNER
JUSTICE
PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
GABRIEL, J. concurs without opinion.
DELIVERED: December 3, 2015
30