Monica Nicole Townsend v. Erik Allen Vasquez ( 2018 )

Opinion issued October 18, 2018
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-17-00436-CV
———————————
MONICA NICOLE TOWNSEND, Appellant
V.
ERIK ALLEN VASQUEZ, Appellee
On Appeal from the 300th District Court
Brazoria County, Texas
Trial Court Case No. 63976
OPINION
Monica Townsend and Erik Vasquez are the parents of a child, C.V. After
their 2012 divorce, a court entered an agreed order that the parents would be C.V.’s
joint managing conservators and that Monica would have the exclusive right to
determine C.V.’s domicile.
Erik initiated this suit, seeking to modify the conservatorship order to grant
him the exclusive right to determine C.V.’s domicile. After a bench trial, the trial
granted Erik’s requested modification. In four issues, Monica challenges the trial
court’s actions. We affirm.
Background
Erik and Monica divorced in 2012, and the court entered an agreed custody
order providing that C.V.—then almost six years old—would live with Monica and
that Erik would exercise standard visitation rights. The order also named both
parents as joint managing conservators. It gave Monica the exclusive rights to
determine C.V.’s domicile and to direct C.V.’s education and gave both parents the
shared right to jointly direct C.V.’s medical and psychiatric care. Monica and
either Erik or his relatives would meet at a designated place to transfer C.V. for
visitation.
Things changed around 2015, when Monica began refusing to transfer C.V.
at the designated place until a police officer was present. Erik then initiated this
suit to change the visitation-transfer location to a local police department, in
accordance with Monica’s wishes to have a police officer present. Monica
counter-petitioned to have Erik’s future visitation periods supervised and to be
named as sole managing conservator. Erik later amended his petition to seek the
exclusive right to determine C.V.’s domicile. Both parents alleged that a material
2
and substantial change in their and C.V.’s circumstances supported a modification.
See TEX. FAM. CODE § 156.101(a)(1)(A).
By Rule 11 agreement, which was later entered as the court’s temporary
order, Erik and Monica agreed to the appointment of a licensed psychologist, Dr.
Marie Alvarez, to evaluate C.V. and his living situations with each parent.
The parties tried the case without a jury. Though the suit was pending before
the 300th District Court of Brazoria County, the elected judge of the Brazoria
County County Court at Law No. 3 presided over the trial.
At trial, Erik called several witnesses in support of his requested
modification. He testified first, explaining that he has remarried and lives with his
wife and his other biological sons for about two years. His parents live in a
different home on the same property. His parents help care for C.V. during
visitation periods, and C.V. gets along with his half-siblings. Erik’s wife takes
C.V. to school from time to time too, and the family takes trips and goes fishing
together.
Erik testified that until recently his visitation with C.V. generally went well.
He helps C.V. with his homework, and he tries to learn about C.V.’s grades. He
eats lunch with C.V. at school on occasion. And he enjoys fishing with C.V.,
watching C.V. playing basketball at the YMCA, and going to movies with C.V.
3
Erik testified that Monica’s and her mother’s conduct in 2015 and 2016
changed things. According to Erik, he stopped the school lunch visits because
Monica’s mother would also show up and chill C.V.’s interaction with him.
Monica requested that Erik undergo drug and alcohol testing, and all tests were
negative. Though the most recent summer visitation went well, CPS investigated
Erik anyway. He also testified that Monica has been trying to turn C.V. against
him—trying to “brainwash” him—and he feared that her efforts would continue
absent a custody modification.
Erik admitted, though, that he had not attended any meetings with school
personnel to address C.V.’s performance1 or C.V.’s appointments with medical and
psychiatric caregivers. He does not know whether C.V. needs to take any
medication. No medication comes with C.V. during scheduled visitations, and C.V.
has only taken Tylenol during his visits. He has not read C.V.’s school or therapy
records, though he could have. He also admitted his 2005 and 2006 convictions for
family violence against Monica. Finally, he admitted that Monica is not a bad
mother, she would never intentionally harm C.V., and his only concern about C.V.
continuing to live with Monica is her attempt to undermine Erik’s relationship with
C.V.
1
C.V.’s school grades have lowered during this suit but, closer to trial, started
to rebound after meetings with school personnel.
4
Erik’s mother, Pauline Moeller, also testified. She picks up C.V. frequently
at the visitation exchanges, and C.V. often stays with her on Friday evenings while
Erik is still working, before spending the rest of the weekend with Erik and his
family. Pauline takes C.V. out to eat, goes to movies with him, and lets him ride a
four-wheeler on their property. C.V. seems happy spending time with both her and
Erik. C.V. now gets along with Erik’s other children, though she acknowledged
some early tension. C.V. told her of one incident when C.V. saw his mother strip
naked while drinking alcohol and smoking.
Pauline also described how Erik used to drink alcohol in front of C.V. and
how C.V. told her that people drinking in front of him scared him. According to
Pauline, no medication is sent with C.V. for his visitations.
Dr. Alvarez, a licensed psychologist, testified that she performed a
psychological and custody evaluation of C.V. and his extended families. She
conducted several lengthy interviews with C.V., Monica, and Erik, sometimes
including C.V. together with one or the other parent.
Dr. Alvarez noted some problems in Monica’s story. Monica frequently
accused Erik of family violence against both herself and C.V., and while there
were two convictions for family violence in 2005 and 2006, Monica’s post-divorce
accusations appeared to Dr. Alvarez to be riddled with inconsistencies. Many of
Monica’s responses were untruthful or were intended to deny or mask “problems,
5
pathology, and personality difficulties.” Monica could not keep her stories straight
and underreported personality factors and associated pathology. Dr. Alvarez
concluded that Monica likely “has a lot of self-esteem and a lot of low confidence
issues” and suffers from some psychopathologies, including frequent
untruthfulness; agenda-driven interactions with others; “under-report[ing] the
common faults that the vast majority of the adult population readily admits
having”; moderate anxiety; somatization; possible depression; “attention-seeking
and dramatic”; and narcissism. But, according to Dr. Alvarez, Erik has no
“significant psychological disorders,” save for some narcissism and
obsessive-compulsive behaviors.
In contrast, Dr. Alvarez had confidence in Erik’s truthfulness and found that
he had no significant psychological disorders, with parenting scores within the
normal range. Erik expressed concern over Monica’s alcohol and substance abuse
and attempts to sabotage his relationship with C.V. Dr. Alvarez corroborated
Erik’s concern, concluding that many of C.V.’s statements about his father’s
“drinking or being mean” or alleged abuse “came directly from” Monica. In Dr.
Alvarez’s view, Monica was attempting “to influence or alienate [C.V.] from his
father by talking to him in ways that will affect” the parent-child relationship.
Specifically, Dr. Alvarez opined that Monica’s push to have a police officer
present at visitation exchanges “is a form of parental alienation.” According to Dr.
6
Alvarez, children need healthy relationships with both their parents and alienation
attempts can qualify as abuse.
Dr. Alvarez noted positives about C.V.’s home life with Erik. Erik’s mother
and her husband are involved in C.V.’s life. C.V. behaves better when with his
father. C.V.’s relationship with his father has improved over time, and C.V.’s
emotional connections to his father and his mother are equal.
Dr. Alvarez concluded that Erik should be given the exclusive right to
determine C.V.’s domicile and to direct C.V.’s medical and psychological care,
with joint managing conservatorship and standard possession for Monica. The
amicus attorney for C.V. joined Dr. Alvarez’s recommendations.
Erik’s wife, Shannon Vasquez, and his stepfather, Thomas Moeller, also
testified in support of Erik’s position, noting how happy C.V. is with Erik and his
family and how they stay involved in C.V.’s life. Shannon indicated her
willingness to co-parent C.V. with Monica and participate in counseling to that
end.
Monica testified too. She sees many problems with Erik’s parenting and
visitation periods. For a time, C.V. returned from visitation periods anxious, sad,
angry, or aggressive and even had panic attacks. She would surreptitiously record
C.V.’s phone calls with his father.
7
She sends C.V. to a therapist for PTSD, anxiety, ADHD, skill-building, and
learning difficulties. C.V. has received therapy also because he saw Erik physically
assault Monica in the past. Monica explained that C.V. will lose access to these
services if he moves from Fort Bend County to Brazoria County, where Erik lives.
Monica also complained that C.V. once was bitten by a dog when playing outside
near Erik’s stepfather’s property, but no one notified her or sent her medical
records of C.V.’s treatment.
Monica testified that she has taken care of virtually all of C.V.’s school,
medical, and psychiatric needs over the years. She has helped C.V. as he has
improved his school grades and attendance, participating in many meetings with
school counselors with C.V. while Erik has not. She has completed three parenting
classes in connection with this suit and has used what she learned in parenting C.V.
Monica explained that she began requiring a police presence at visitation
transfers because some of Erik’s family would be “aggressive” toward her at the
exchange or at her job. And though she requested that Erik be tested for drugs and
alcohol during his visitation periods, Monica acknowledged that the tests were
negative and that she is no longer concerned about C.V.’s safety with Erik.
Notwithstanding C.V.’s past concerns about Erik’s wife and other children, C.V.
has expressed contentment to Monica about staying with his father. Monica
admitted that C.V. loves and gets along well with Erik and his family.
8
Monica’s mother also testified, and she acknowledged that C.V. loves Erik,
that C.V. increasingly looks forward to seeing Erik, and that C.V. comes back to
Monica a happy child after visits with Erik.
The trial court granted Erik’s requested modification. The court awarded
Erik the exclusive right to determine C.V.’s domicile within Brazoria County and
contiguous counties, named both parents joint managing conservators, and
awarded Monica only a standard visitation arrangement. She challenges these
modifications on appeal.
Objection to Referral to Associate Judge
The trial on the merits of a Family Code section 156.101 modification
proceeding may be referred to an associate judge unless a party objects to the
referral in writing. See TEX. FAM. CODE § 201.005(b). In her first issue, Monica
contends that her written, pre-trial objection to an associate judge precluded the
judge of the Brazoria County County Court at Law No. 3 from presiding over the
trial on the merits. Monica’s contention turns on whether the judge of the County
Court at Law No. 3 is an “associate judge,” a term that is undefined in the Family
Code.
Section 201.001 of the Family Code governs the appointment of associate
judges. Generally, an associate judge is appointed by the district or county court
judges whom the associate judge will assist. See TEX. FAM. CODE § 201.001(a)–(e)
9
(providing circumstances under which associate judge may be appointed); id.
§ 201.007(a)–(e) (providing powers that associate judge exercises, for example,
conducting hearings and hearing evidence). Associate judges are compensated as
determined by the county commissioners’ court (or courts) from the county (or
counties) whose judges the associate judge serves. See TEX. FAM. CODE
§ 201.003(a)–(d). Associate judges are not elected. They do not have their own
courts; they assist duly elected judges. And associate judges’ “employment” is
terminable “at the will of” or “by a majority vote of” the judge or judges that the
associate judge serves. See TEX. FAM. CODE § 201.004(a)–(d).
In contrast, the judgeship for the County Court at Law No. 3 is created by
Government Code section 25.0221(3). A person attains this judgeship either by
election or by appointment in the event of a vacancy. See generally TEX. CONST.
art. V, § 30 (requiring all “Judges of all Courts of county-wide jurisdiction
heretofore or hereafter created by the Legislature” to be elected); TEX. GOV’T
CODE § 25.0009(a)–(c) (providing for appointment of county court at law judges in
event of vacancy); cf. Fashing v. El Paso Cty. Democratic Exec. Comm., 534
S.W.2d 886, 888–90 (Tex. 1976) (applying Texas Constitution article V, section
30, in suit concerning county courts at law). A county court at law judge exercises
certain powers specific to that office. See TEX. GOV’T CODE § 25.0004(a)–(g). The
judge is compensated by the county commissioners’ court, subject to a statutory
10
compensation floor. See TEX. GOV’T CODE § 25.0005(a), (d). And the judge may
be “removed from office” only under certain conditions and through certain
procedures. See TEX. CONST. art. V, § 1-a(6) (governing removal of county judges
from office); TEX. GOV’T CODE § 25.0006(b) (providing for removal of county
court at law judges from office “in the same manner and for the same reasons as a
county judge”). The Brazoria County County Court at Law No. 3 exercises the
jurisdiction conferred on it by Government Code sections 25.003 and 25.0222,
which includes jurisdiction over family-law cases.
A referral usually confers on an associate judge the power to hear a trial on
the merits of a modification suit pending before a district court. See generally TEX.
FAM. CODE §§ 201.005–.007. In contrast, a county court at law judge may hear a
trial on the merits of a modification suit pending before a district court under an
independent grant of authority—one that does not require a referral. See TEX.
GOV’T CODE § 74.094(a); Camacho v. Samaniego, 831 S.W.2d 804, 811 (Tex.
1992) (remarking that Government Code section 74.094(a) “allow[s] a statutory
county court judge to hear, determine, and sign a judgment in a matter pending in
district court outside his court’s jurisdiction without transferring the case”).
Section 74.094(a) empowered the judge of the County Court at Law No. 3 to
preside over the trial of this suit.
11
Comparing the two sets of provisions that create, empower, compensate, and
govern the termination of associate judges to the analogous provisions for the
judge of the County Court at Law No. 3, we hold that a county court at law judge
who sits for another judge is not an “associate judge” as contemplated by Family
Code section 201.005. The two offices are governed by distinct provisions. And
the judge here could hear the bench trial on the merits under Government Code
section 74.094(a), without need of the authority contemplated by the Family
Code’s referral-unless-objected-to provisions.
Monica also argues that the “case should have been tried by the referring
judge rather than the associate judge. The associate judge lacked jurisdiction.” We
do not consider this to be a challenge to the 300th District Court’s jurisdiction over
this suit. That court undisputedly had jurisdiction over this family-law case. See
TEX. GOV’T CODE §§ 24.601, 24.608. The suit was filed in, and was never
transferred out of, the 300th District Court. Government Code section 74.094(a)
empowered the judge of the County Court at Law No. 3 to preside over the trial
while the suit was still pending before the 300th District Court.
We therefore overrule Monica’s first issue.
Rule of Civil Procedure 306
In her second issue, Monica contends that the trial court’s modification order
fails to comply with Rule of Civil Procedure 306. Rule 306 requires that a
12
judgment “state the specific grounds for termination or for appointment of the
managing conservator” if the suit is one either “for termination of the parent-child
relationship or a suit affecting the parent-child relationship filed by a governmental
entity for managing conservatorship.” TEX. R. CIV. P. 306. This suit is neither. We
therefore overrule Monica’s second issue.
Order Modifying Conservatorship—C.V.’s
Best Interest and Evidence Sufficiency
Monica also challenges the trial court’s decision to grant Erik the exclusive
right to determine C.V.’s residence within Brazoria County and contiguous
counties. In her third issue, Monica contends that the trial court abused its
discretion in making a modification that is not in C.V.’s best interest. In her fourth
issue, Monica contends that the modification was an abuse of discretion because
the evidence is legally and factually insufficient. We consider the two issues
together, given the standard of review and applicable law.
I. Standard of review and applicable law
A trial court’s order modifying the parent-child relationship is reviewed for
an abuse of discretion. Stamper v. Knox, 254 S.W.3d 537, 542 (Tex. App.—
Houston [1st Dist.] 2008, no pet.). Such an order will be disturbed only when it is
clear that the court acted in an arbitrary or unreasonable manner, without reference
to any guiding principles. Id.
13
Under the abuse-of-discretion standard applicable to orders modifying the
parent-child relationship, legal and factual sufficiency are not independent grounds
of error but are relevant factors in assessing whether the trial court abused its
discretion. Id. Review in this context is two-pronged: a reviewing court determines
whether the trial court (1) had sufficient information on which to exercise its
discretion and (2) erred in applying its discretion. Id. Traditional sufficiency
review comes into play under the first prong. Id.
To determine legal sufficiency of the evidence, a reviewing court determines
whether the evidence would enable reasonable people to reach the judgment being
reviewed. Id. The reviewing court must consider the evidence in the light most
favorable to the trial court’s decision and indulge every reasonable inference that
would support it. See Epps v. Deboise, 537 S.W.3d 238, 242–43 (Tex. App.—
Houston [1st Dist.] 2017, no pet.). The reviewing court considers favorable
evidence that a reasonable factfinder could consider and disregards contrary
evidence unless a reasonable factfinder could not disregard it. Stamper, 254
S.W.3d at 542. If the evidence allows for only one inference, the reviewing court
may not disregard it. Epps, 537 S.W.3d at 243.
To determine factual sufficiency, a reviewing court considers all of the
evidence that either supports or contradicts the factfinder’s determination. Id. The
factfinder’s finding is set aside only if the evidence supporting it is so contrary to
14
the overwhelming weight of the evidence as to be clearly wrong or unjust. See id.
The reviewing court may not simply substitute its judgment for the factfinder’s; the
factfinder is the sole judge of the witnesses’ credibility and the weight to be given
their testimony. Id.
In a bench trial, the trial court, as the trier of fact, is the sole judge of the
witnesses’ credibility and the weight to be given their testimony. Hatteberg v.
Hatteberg, 933 S.W.2d 522, 530 (Tex. App.—Houston [1st Dist.] 1994, no writ).
The trial court may choose to believe some witnesses over others. Martinez v.
Lopez, No. 01-09-00951-CV, 2011 WL 2112806, at *4 (Tex. App.—Houston [1st
Dist.] May 26, 2011, no pet.) (mem. op.).
Once the evidence is reviewed in the proper legal- and factual-sufficiency
contexts under the first prong, a reviewing court considers under the second prong
whether the trial court erred in applying its discretion because it made an
unreasonable decision. Stamper, 254 S.W.3d at 542. Ultimately, there is no abuse
of discretion as long as some evidence of a substantive and probative character
exists to support the trial court’s decision. Id.
A trial court may modify the terms of a conservatorship order if the party
requesting the modification shows both that there has been a material and
substantial change warranting the modification since the date of the last
conservatorship order and that the modification is in the child’s best interest. See
15
TEX. FAM. CODE § 156.101(a); Epps, 537 S.W.3d at 243. The child’s best interest
is the court’s primary consideration. TEX. FAM. CODE § 153.002.
A non-exhaustive list of factors guides a reviewing court about the child’s
best interest. Epps, 537 S.W.3d at 243. Those factors are (1) the child’s desires,
(2) the child’s emotional and physical needs now and in the future, (3) the
emotional and physical danger to the child now and in the future, (4) the parental
abilities of the individuals seeking custody, (5) the programs available to assist
these individuals to promote the child’s best interest, (6) the plans for the child by
the individuals seeking custody, (7) the stability of the home or proposed
placement, (8) the parent’s acts or omissions that may indicate that the existing
parent-child relationship is not a proper one, and (9) any excuse for the parent’s
acts or omissions. Id.
II. Legally and factually sufficient evidence exists, giving the trial court
sufficient information on which to exercise its discretion
First, we review the evidence under each of the nine factors that guide
review of a best-interest finding. We use the factors to determine whether legally
and factually sufficient evidence supports the trial court’s ruling.
A. C.V.’s desires
C.V. did not testify, and no witness testified that C.V. has expressed a
custody preference. Several witnesses offered testimony that supports a
determination that C.V., at a minimum, has no objection to his father having
16
custody. Erik, Pauline, and Shannon described how C.V. gets along well with his
extended paternal family. Monica agreed that the paternal familial relationships
were good. Monica’s mother, too, admitted that C.V. loves Erik, that C.V.
increasingly looks forward to seeing Erik, and that C.V. comes back to Monica a
happy child after visits with Erik. C.V. enjoys activities with his father, including
playing outside, fishing, and going to movies. Notwithstanding her prior concerns
about C.V. living with Shannon and Erik’s and Shannon’s children, Monica
admitted that C.V. has still expressed interest in staying with Erik, that C.V. has
fun around Erik, and that things are better between C.V. and Shannon now.
Finally, Dr. Alvarez concluded that C.V. is equally emotionally connected to both
parents.
In response, Monica asserts that C.V. told Dr. Alvarez that he wants to keep
living with Monica. She offers no record support for that assertion, and we find
none. In fact, Monica testified that she is not aware of anyone having asked C.V.
who he wanted to live with. Monica references Dr. Alvarez’s testimony about
C.V.’s therapist’s deposition. Dr. Alvarez noted that, during a drawing exercise
with the therapist, C.V. was asked which of two barns a horse should go in,
understanding that the horse could not stay in both barns. One barn said “Mom”
and the other “Dad.” C.V. chose the “Mom” barn. Finally, Monica points to a
statement made by the therapist during her deposition that C.V. “is worried about
17
having to live with his dad if that were to be the case, that he wants to stay with his
mom.”
The trial court could have discounted the drawing exercise and deposition
statement by C.V.’s therapist for at least two reasons. First, Dr. Alvarez reviewed
this information and still recommended that C.V. live with Erik. Second, Monica
has, according to Dr. Alvarez, alienated C.V. from his father.
We conclude that this factor is neutral.2
B. C.V.’s emotional and physical needs now and in the future
Much of the trial concerned Monica’s efforts to alienate C.V. from Erik and
the resulting emotional harm to C.V. Based on interviews with C.V., Monica, and
Erik, Dr. Alvarez noted “an attempt by Ms. Townsend to influence or alienate
[C.V.] from his father by talking to him in ways that will affect” the father-son
relationship. Both Erik and Dr. Alvarez were concerned by Monica’s behavior.
Dr. Alvarez concluded that many of Monica’s allegations against Erik after
the 2012 custody order—allegations of physical abuse against Monica and
2
Monica also asserts that “Family Code 153.008 allows [a] child 10 years of
age or older to state a preference for managing conservator.” That statute
was repealed in 2009, however, before this suit was filed. See Act of May
29, 2009, 81st Leg., R.S., ch. 1113, § 31, 2009 TEX. GEN. LAWS 3056, 3072;
Act of May 29, 2009, 81st Leg., R.S., ch. 1118, § 10, 2009 TEX. GEN. LAWS
3078, 3082. The current statute, Family Code section 153.009, allows, but
does not require, a court to interview in chambers children under 12 years of
age to determine the child’s living preference. C.V. was 10 years old at the
time of trial. There is no record of any such interview in the record before
us.
18
improper drinking around C.V.—were too riddled with inconsistencies to be true.
Monica caused Erik to be subjected to drug and alcohol testing, he passed the tests,
and the tests were discontinued. Monica admitted that Erik has since quit drinking
around C.V. and that she no longer worries that C.V. is unsafe with Erik because of
drug or alcohol abuse.
Monica’s attempted alienation and untruthfulness led Dr. Alvarez to
conclude that C.V. was better off living with his father and with Monica having a
standard possession order. The amicus attorney for C.V. agreed.
Monica responds by pointing out her care and support for C.V. for his entire
life, including as it relates to school activities, medical care, and psychiatric care.
She has been C.V.’s primary caregiver, and C.V. is attached to her. But Erik wants
to assume that role, and has the support of other family members to assist him.
This factor favors Erik.
C. Emotional and physical danger to C.V. now and in the future
Dr. Alvarez’s testimony about Monica’s attempt to alienate C.V. from his
father—which Dr. Alvarez testified that some psychologists refer to as child
abuse—suggests emotional danger to C.V. now and in the future if C.V. continued
to reside primarily with Monica. Dr. Alvarez testified that children’s psychological
development “is negatively impacted and developed by parents that work to
alienate the parent from one parent.” She opined that Monica’s explanation to C.V.
19
about the need for a police presence at visitation exchanges created a psychological
framework that communicated to C.V. that Monica was “so afraid of Mr. Vasquez
that they can’t meet at any other place. And that is a form of parental alienation
trying to influence the relationship between [C.V.] and his father by presenting Mr.
Vasquez as an abusive monster.” Monica did have reason for these beliefs—Erik
had been convicted twice of domestic abuse against her before C.V.’s birth, and
she testified that C.V. had witnessed his parents in a physical altercation. But
Monica herself undercut this rationale. She testified that she asked for custody
exchange at the police station because Erik’s family acted aggressively toward her
at prior exchanges. Erik himself rarely was present for the exchanges. And Monica
later testified that she no longer believes that Erik puts C.V. in danger or that his
visitations need to be supervised.
Monica also suggests that statements by C.V. to his therapist show that he
has been afraid of Erik, feels unsafe in Erik’s home, and has been mistreated by
Shannon. These are the kind of allegations that Dr. Alvarez testified to as being fed
by Monica to C.V. in order to alienate him from his father. The trial court, as sole
judge of witness credibility in this bench trial, was entitled to believe Dr. Alvarez
on this topic. See Epps, 537 S.W.3d at 243; Martinez, 2011 WL 2112806, at *4;
Hatteberg, 933 S.W.2d at 530.
This factor favors Erik.
20
D. Erik’s and Monica’s parental abilities
Monica has been C.V.’s primary caregiver his whole life, in part because
C.V. has not lived with Erik for most of his life. She is involved in C.V.’s
schooling and in improving his grades. She has borne the greater share of taking
care of C.V.’s medical needs. Erik has been largely absent from those efforts.
During this suit, Monica also completed several parenting classes and used what
she learned to improve her parenting.
Dr. Alvarez compared Erik’s and Monica’s parental abilities. Erik’s scores
were within the normal range, while Monica’s interviews were beset by
inconsistencies and attempts to mask pathologies and problems. Dr. Alvarez also
opined that C.V. behaves better when with Erik.
Based on Dr. Alvarez’s testimony, we conclude that this factor slightly
favors Erik.
E. Programs available to assist Erik or Monica in promoting C.V.’s
best interest
Monica ensured that C.V. has received therapy for several years, and she has
regularly attended meetings with school personnel to address C.V.’s
low-but-improving school performance. Therapy helped C.V. address concerns
about his interactions with Shannon and other children. It also helps C.V. work
through issues relating to PTSD, anxiety, ADHD, and learning difficulties. Living
with Erik outside of Fort Bend County will preclude C.V. from using the same
21
therapist’s services because that therapist only serves Fort Bend County residents.
Erik has never reached out to the therapist Monica retained for C.V.
Monica has also attended meetings with school personnel to address C.V.’s
performance. In contrast, Erik had limited involvement with helping C.V.’s school
performance, even though online tools were available to him to monitor C.V.’s
performance.
Erik responds that all the “programs available to promote the best interests
of the child are equally available to both parents.” Not so when it comes to the
therapy and skill-building offered by C.V.’s longtime therapist and her office. Erik
also points out that the trial court’s order provides that both parents have the right,
subject to the other’s agreement, to consent to medical and psychological treatment
for C.V. True enough, but that does not address that Monica has obtained therapy
and school help for C.V. while Erik has not.
This factor favors Monica.
F. Erik’s and Monica’s plans for C.V.
Both parents claim that they are better suited to prepare C.V. for his future.
Monica has invested significant time helping C.V.’s education and obtaining
therapy for him. Dr. Alvarez interviewed each parent several times and concluded
that C.V. was better off living with his father. She concluded that Monica
22
attempted to alienate C.V. from his father and that she showed troubling
psychopathologies.
Given the recommendations of Dr. Alvarez, a neutral licensed psychologist,
this factor favors Erik.
G. The stability of Erik’s home
Dr. Alvarez’s interviews with each parent led her to conclude that Erik’s
home was a better environment for C.V. Her impressions were that Erik was
truthful but that Monica was not. Monica’s statements were riddled with
inconsistencies, and Monica frequently denied or masked “problems, pathology,
and personality difficulties.” Monica suffers from some psychopathologies,
including frequent untruthfulness, agenda-driven interactions with others,
“under-report[ing] the common faults that the vast majority of the adult population
readily admits having,” moderate anxiety, somatization, possible depression,
“attention-seeking and dramatic,” and narcissism. But Erik has no “significant
psychological disorders,” save for some narcissism and obsessive-compulsive
behaviors. Also, Shannon, who lives with Erik, and Erik’s parents, who live
nearby, are involved in C.V.’s life, and C.V. enjoys spending time with them.
Monica raises some of C.V.’s prior complaints about Erik’s other sons
hurting him and about not feeling comfortable around Shannon. Notwithstanding
these concerns, Monica testified that she no longer believes that C.V. is unsafe in
23
Erik’s care or that Erik’s visitation must be supervised. She also faults Dr.
Alvarez’s failure to interview Shannon and the other children and complains that
her final report was issued about a year before trial. These complaints go to Dr.
Alvarez’s credibility, which we may not second-guess. See Epps, 537 S.W.3d at
243; Martinez, 2011 WL 2112806, at *4; Hatteberg, 933 S.W.2d at 530.
This factor favors Erik.
H. Monica’s acts or omissions that indicate that the current custodial
placement is improper
Dr. Alvarez’s opinions about Monica’s attempts to alienate C.V. from his
father also bear on this factor, as does Monica’s surreptitiously recording all of
C.V.’s phone calls with Erik.
Monica points to Erik’s 2005 and 2006 convictions for family violence
against her and C.V.’s statements that he was afraid of Erik. The family-violence
convictions are troubling, but the trial court hearing a custody-modification request
may focus on evidence concerning conduct since the date of the order sought to be
modified, rather than conduct occurring before that date. See, e.g., Dowell v.
Dowell, 276 S.W.3d 17, 23 (Tex. App.—El Paso 2008, no pet.); In re W.R.M.D.,
No. 10-07-00046-CV, 2007 WL 3025024, at *1 (Tex. App.—Waco Oct. 17, 2007,
no pet.) (mem. op.); Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex. App.—
Houston [1st Dist.] 1988, no writ). And C.V.’s statements that he was afraid of his
24
father were the kinds of statements that Dr. Alvarez found to be planted by his
mother in order to alienate him from his father.
This factor favors Erik.
I. Excuses for Monica’s acts or omissions that indicate that the
current custodial placement is improper
Monica offers no excuses for her alienating conduct. She points only to
Erik’s conduct. This factor therefore favors in Erik.
In sum, of the nine best-interest factors, seven favor Erik, and only one
favors Monica. Her alienating conduct played a central role in Dr. Alvarez’s
custody recommendation. And the trial court could have reasonably concluded that
Dr. Alvarez’s opinion about Monica’s untruthfulness undermined Monica’s
credibility. So while Monica has done much good in her parenting, the trial court
reasonably could have concluded that her intentional and repeated alienation of
C.V. from his father strongly suggested that custody should be modified. We hold
that the evidence before the trial court was legally sufficient to support the order
modifying custody in Erik’s favor because we cannot say that a reasonable person
could not have reached the same judgment on the same facts. See Stamper, 254
S.W.3d at 542. We also hold that the evidence was factually sufficient because the
evidence supporting the modification was not so contrary to the overwhelming
weight of the evidence as to make the order clearly wrong or unjust. See Epps, 537
S.W.3d at 243.
25
III. The trial court did not err in applying its discretion to the evidence
Under the second prong of abuse-of-discretion review, Monica offers several
reasons why she believes Dr. Alvarez’s testimony was not credible—Dr. Alvarez
ignored C.V.’s therapist’s deposition testimony, Dr. Alvarez’s methodology was
flawed, C.V.’s therapist is more credible than Dr. Alvarez, Dr. Alvarez never
interviewed Shannon or her and Erik’s children, and Monica’s personal therapist
reached different conclusions about her mental health. But these observations
concern Dr. Alvarez’s credibility, which the trial court was within its discretion to
judge favorably.3 The same goes for Monica’s contention that the “judge put too
much weight towards the amicus attorney opinion.”4
3
Monica also contends that Dr. Alvarez violated Family Code
subsections 107.108(a), (c), and (e). But she does not explain how Dr.
Alvarez allegedly failed to conform with the applicable standard of care for
her licensure and any guidelines adopted by the authority that licensed her
(subsection (a)), to “follow evidence-based practice methods and [to] make
use of current best evidence” (subsection (c)), or to verify the fact statements
in her report (subsection (e)). Both Dr. Alvarez’s report and her testimony
reveal the sources for her opinions. Monica forfeited her Family Code
section 107.108 contentions by inadequately briefing them. See TEX. R. APP.
P. 38.1(i).
4
Monica complains that the amicus attorney violated Family Code
subsections 107.005(a) and (b). But she does not explain how the amicus
attorney failed to interact with C.V. or the court or failed to study the
relevant American Bar Association child-representation standards. She
therefore forfeited those complaints. See TEX. R. APP. P. 38.1(i).
26
We cannot say that the trial court made an unreasonable decision by ruling
for Erik. See Stamper, 254 S.W.3d at 542. We overrule Monica’s third and fourth
issues.
Conclusion
We affirm the trial court’s order.
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Brown and Caughey.
27