in the Interest of B.E.S., and J.G.S., Children ( 2021 )

Affirmed and Memorandum Opinion filed July 29, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-01009-CV
IN THE INTEREST OF B.E.S. AND J.G.S., CHILDREN
On Appeal from the 309th District Court
Harris County, Texas
Trial Court Cause No. 2016-55185
MEMORANDUM OPINION
In this suit affecting the parent-child relationship, Father appeals the trial
court’s order in suit to modify the parent-child relationship permanently enjoining
Father from allowing his romantic partner (“Katie”) to be in the presence of his
children and to communicate with his children. He challenges the order in five
issues. For the reasons below, we affirm the trial court’s order.
BACKGROUND
Mother and Father are the parents of minor children B.E.S. (“Bianca”) and
J.G.S. (“Julien”).1 Mother and Father divorced in 2017. Pursuant to the agreed
final divorce decree, the trial court appointed the parents joint managing
conservators. In June 2018, Father filed a petition to modify the parent-child
relationship, requesting that the trial court reduce his child support and spousal
maintenance obligations as well as terminate his obligation to pay for Mother’s
health insurance. Mother filed an answer in July 2018.
In October 2018, Mother filed an original petition to modify the parent-child
relationship after becoming aware that Father started dating Katie. Mother voiced
her concerns to Father about Katie, whom she had known for many years. Based
on several criminal charges, Mother was concerned that Katie would have a
harmful impact on Bianca and Julien. Therefore, Mother asked that Father be
temporarily enjoined from allowing Katie to be in the presence of the children.
Mother then filed a first and second amended petition to modify the parent-child
relationship in which she, among other things, requested temporary orders and a
permanent injunction prohibiting Father from allowing Katie to be in the presence
of and to communicate with Bianca and Julien. In response, Father filed his first
and second amended special exceptions and answer to Mother’s first and second
amended petitions.
In March and April 2019, respectively, Father filed a counter-petition and a
first amended counter-petition to modify the parent-child relationship requesting
that the court order “periods of electronic communication with the children” to
supplement Father’s periods of possession with the children. A month later, Father
filed his second amended counter-petition to modify the parent-child relationship
requesting (1) permanent injunctive relief for “periods of electronic
1
Bianca and Julien are pseudonyms. Pursuant to Texas Rule of Appellate Procedure 9.8,
we use fictitious names to identify the minors involved in this case. See Tex. R. App. P. 9.8.
2
communication with the children to supplement” his periods of possession, and (2)
a location modification for the exchange of the children.
In May 2019, Mother filed her third amended petition to modify the parent-
child relationship asking the court, among other things, to enter temporary orders
and a permanent injunction prohibiting Father from allowing Katie to be in the
presence of and to communicate with Bianca and Julien. In response, Father filed
his third amended special exceptions and answer to Mother’s third amended
petition. He pleaded “affirmative defenses of: . . . unconstitutionality under the
14th Amendment of the U.S. Constitution: Due Process, Fundamental Rights, and
Equal Protection Clause; and . . . unconstitutionality under the 1st Amendment of
the U.S. Constitution: Freedom of Intimate Association.” Father specially
excepted to Mother’s pleading stating, among other things, that (1) Mother
“‘requests the Court after trial on the merits, to grant . . . permanent injunctions,’
consisting of . . . injunctive relief that permanently exclude [Father] from fully
exercising [Father]’s rights of possession of or access to the children, to the
detriment of [Father] and the children,” and (2) Mother’s requests “seek the Court
to assert governmental/judicial authority and issue an order that is unconstitutional
under both the 14th Amendment of the U.S. Constitution, with regard to Due
Process, Fundamental Rights, and Equal Protection Clause, and under the 1st
Amendment of the U.S. Constitution, with regard to Freedom of Intimate
Association.”
In July 2019, Mother filed her original response to Father’s second amended
counter-petition. In August 2019, she filed her fourth amended petition to modify
the parent-child relationship again requesting, among other things, that the court
grant a permanent injunction enjoining Father from allowing Katie to be in the
presence of or communicate in any manner with Bianca and Julien.
3
On September 9, 2019, Mother appeared and announced ready for trial.
Father was notified of trial but failed to appear. A bench trial was held and
recorded by a court reporter.2 On September 23, 2019, the trial court signed an
order in suit to modify the parent-child relationship stating, among other things,
that Father is permanently enjoined from allowing Katie to be in the presence of or
communicate with any child of Father and Mother.
Father filed a request for findings of fact and conclusions of law on
September 26, 2019. The trial court signed findings of fact and conclusions of law
on December 12, 2019. Father filed his notice of appeal on December 23, 2019.
ANALYSIS
Father presents five issues on appeal attacking the permanent injunction
contained in the trial court’s order in suit to modify the parent-child relationship.
I. Constitutional Issues
In his first three issues, Father challenges the permanent injunction on
constitutional grounds. He states in his first issue that the “Permanent Injunction
of the Trial Court’s Final Order is Void as Unconstitutional.” Father claims in his
second issue that the “Permanent Injunction Is Void as an Unconstitutional Prior
Restraint on Free Speech.” In his third issue, Father states that the “Permanent
Injunction Is Void as an Infringement of Freedom of Intimate Association under
the First Amendment of the U.S. Constitution.”
However, Father failed to raise any due process or due course complaint in
the trial court. Nor did he raise any complaint regarding an unconstitutional prior
restraint on his right to free speech or an unconstitutional infringement of his right
to freedom of intimate association in the trial court.
2
Father did not request a reporter’s record of the trial.
4
To preserve a complaint for appellate review, a party must present to the
trial court a timely request, motion or objection, state the specific grounds therefor,
and obtain an adverse ruling. Tex. R. App. P. 33.1(a)(1); In re S.V., 599 S.W.3d
25, 40 (Tex. App.—Dallas 2017, pet. denied); In re B.G., No. 14-04-00944-CV,
2006 WL 1594043, at *3 (Tex. App.—Houston [14th Dist.] June 13, 2006, no pet.)
(mem. op.); see also In re E.W., Nos. 14-19-00666-CV, 14-19-00724-CV, 2020
WL 742327, at *13 (Tex. App.—Houston [14th Dist.] Feb. 13, 2020, pet. denied)
(mem. op.). Even constitutional complaints must be presented to the trial court to
be preserved for appellate review.3 See Perry v. United Servs. Auto. Ass’n, 602
S.W.3d 915, 916 n.1 (Tex. 2020) (per curiam) (declining to address constitutional
complaints because they were not raised in the trial court and, thus, not preserved
for review); Loftin v. Lee, 341 S.W.3d 352, 356 n.11 (Tex. 2011) (concluding that
party failed to preserve complaints that statute was vague and violated open courts
and due course of law guarantees by not raising those issues with trial court); In re
L.M.I., 119 S.W.3d 707, 711 (Tex. 2003) (constitutional complaints must be
preserved in the trial court, even in cases concerning termination of parental
rights).
Because there is no indication that Father presented and received an adverse
ruling on the three constitutional complaints he now asserts on appeal, he failed to
preserve them for appellate review. See Tex. R. App. P. 33.1(a)(1); Gerges v.
3
We note that Father argues in his reply brief that he did not need to preserve his
constitutional complaints in the trial court. Although somewhat unclear, it seems Father asserts
the trial court lacked jurisdiction to enter the order containing the permanent injunction and,
therefore, Father did not have to preserve his constitutional complaints. Father is mistaken; the
trial court had jurisdiction to enter its order. “A court with continuing, exclusive jurisdiction
may modify an order that provides for the conservatorship, support, or possession of and access
to a child.” Tex. Fam. Code Ann. § 156.001; King v. Lyons, 457 S.W.3d 122, 126 (Tex. App.—
Houston [1st Dist.] 2014, no pet.). The court may modify such an order if doing so “would be in
the best interest of the child” and upon a showing of a material and substantial change in
circumstances. Tex. Fam. Code Ann. § 156.101; King, 457 S.W.3d at 126.
5
Gerges, 601 S.W.3d 46, 62-63 (Tex. App.—El Paso 2020, no pet.) (appellant
waived argument that injunction against recording activities at his children’s
school was an unconstitutional restriction of his First Amendment rights because
he failed to raise it in the trial court); In re S.V., 599 S.W.3d at 40 (appellant failed
to preserve complaint because he did not argue in the trial court that injunctions
constituted a prior restraint on his right to free speech); In re F.E.N., 542 S.W.3d
752, 768 (Tex. App.—Houston [14th Dist.] 2018, pet. denied) (“Due process
violations must be raised in the trial court for them to be preserved on appeal.”).
Father also waived his three issues by failing to properly brief them. “An
appellant has a duty to cite specific legal authority and to provide legal argument
based upon that authority.” In re J.J.A., No. 14-18-00530-CV, 2018 WL 6614236,
at *5 (Tex. App.—Houston [14th Dist.] Dec. 18, 2018, no pet.) (mem. op.).
With regard to his first issue, Father states that the “Permanent Injunction of
the Trial Court’s Final Order is Void as Unconstitutional.” But beyond this
conclusory statement, he makes no argument as to why the permanent injunction is
unconstitutional. Father merely quotes (1) from the due process clause in the
United States Constitution; (2) from the due course provision in the Texas
Constitution; (3) one sentence from the Supreme Court’s opinion in Troxel v.
Granville, 530 U.S. 57, 72-73 (2000) (plurality op.); and (4) less than a sentence
from Justice Thomas’s dissenting opinion in Saenz v. Roe, 526 U.S. 489, 527-28
(1999).
With respect to his second argument, Father states in conclusory fashion that
the permanent injunction constitutes an unconstitutional prior restraint on his right
to free speech and then quotes a few sentences from Kinney v. Barnes, 443 S.W.3d
87, 89, 94 (Tex. 2014). However, he does not develop his argument or explain
how the injunction infringes upon his right to free speech when the injunction in no
6
way restricts his right to speak to his children or Katie.
Regarding his third issue, Father makes the conclusory statement that the
permanent injunction constitutes an unconstitutional infringement of his right to
freedom of intimate association and then quotes parts of one sentence from Kipps
v. Caillier, 205 F.3d 203, 206 (5th Cir. 2000), and four sentences from Roberts v.
U.S. Jaycees, 468 U.S. 609, 618-19, 622 (1984). But Father does not expand on
his assertion or explain how the injunction infringes upon his right to freedom of
intimate association when the injunction only prohibits him to allow Katie to
associate with his children and does not infringe on his relationship with his
children.
Because Father does not develop his arguments beyond stating the
propositions and quoting excerpts from a few authorities, he fails to properly brief
his first, second, and third issues. See Tex. R. App. P. 38.1(i) (requiring that an
appellant’s brief “contain a clear and concise argument for the contentions made,
with appropriate citations to authorities and to the record”); In re S.A.H., 420
S.W.3d 911, 929 (Tex. App.—Houston [14th Dist.] 2014, no pet.) (finding issue
was improperly briefed when appellant failed to develop his argument beyond
making a conclusory statement and citing authority); Bhatia v. Woodlands N.
Houston Heart Ctr., PLLC, 396 S.W.3d 658, 666 n.9 (Tex. App.—Houston [14th
Dist.] 2013, pet. denied) (declining to make appellant’s argument for him).
Accordingly, we overrule Father’s issue one, two, and three because they are
waived.
II. Best Interest and Constitutionally Protected Rights
Father states in his fourth issue that ‘“Best Interests’ Do Not Trump
Constitutional[ly] Protected Rights.” However, except for this conclusory
7
contention, he makes no argument and merely quotes parts of three sentences from
Reno v. Flores, 507 U.S. 292, 303-04 (1993). Because Father does not properly
advance his argument beyond stating the proposition, he failed to properly brief his
fourth issue. See Tex. R. App. P. 38.1(i); In re S.A.H., 420 S.W.3d at 929; Bhatia,
396 S.W.3d at 666 n.9.
Accordingly, we conclude Father waived his fourth issue, and we overrule
that issue.
III. Personal Jurisdiction
In his fifth issue, Father states the “Permanent Injunction Is Void for Lack of
Constitutional Due Process and Personal Jurisdiction as to Katie.” Here, Father
appears to argue that the trial court lacked personal jurisdiction over Katie because
she was not served with process in violation of her due process rights, therefore
rendering the permanent injunction against Katie void.
Contrary to Father’s assertion, the trial court did not assert jurisdiction over
Katie. The court did not enter a permanent injunction restraining or enjoining
Katie from taking any actions or ordering her to refrain from taking any actions.
Instead, the court permanently enjoined Father from allowing Katie to be in the
presence of any of his children and to communicate with any of his children.
Father acknowledges in his brief that the trial court entered a permanent injunction
against him. Because the court did not enter an injunction against Katie, it did not
assert personal jurisdiction over her, and Father’s argument is without merit.
Accordingly, we overrule Father’s fifth issue.
IV. Reply Brief Issues
In his reply brief, Father argues for the first time that the permanent
injunction is void because (1) it is “overly broad, vague, arbitrary, and
8
unreasonable;” and (2) “its effect is to place [Father] in the position of a proxy for
the dominion, custody, and control of [Katie], a non-party, whereas the trial court’s
authority is limited to matters directly related to the care, custody, control,
possession, and visitation of children by the parents, being the parties over whom
the trial court has jurisdiction.” He also argues for the first time in his reply brief
that the trial court abused its discretion in issuing the permanent injunction because
(1) Mother did not seek an injunction that “directly concern[s] custody, control,
possession, or visitation of a child” and, therefore, improperly failed to plead four
required elements when seeking a permanent injunction—a wrongful act,
imminent harm, irreparable injury, and absence of an adequate remedy at law; (2)
the trial court failed to find in its findings of fact the existence of these four
elements “to support the granting of the injunction” and incorporate “language
regarding the existence of” these four elements in its final order; and (3) the trial
court’s conclusions of law are “incorrect as the permanent injunctive relief pled by
[Mother] . . . and granted by the trial court does not directly concern custody,
control, possession, or visitation of a child, and” Mother failed to prove the four
elements required for injunctive relief.
However, an appellant may not raise new issues in his reply brief that were
not discussed in his original brief, even if the new issues are raised in response to a
matter in the appellee’s brief but not raised in the appellant’s original brief. See
Yeske v. Piazza Del Arte, Inc., 513 S.W.3d 652, 672 n.5 (Tex. App.—Houston
[14th Dist.] 2016, no pet.); Marsh v. Livingston, No. 14-09-00011-CV, 2010 WL
1609215, at *4 (Tex. App.—Houston [14th Dist.] Apr. 22, 2010, pet. denied)
(mem. op.); Green v. Quality Dialysis One, LP, No. 14-05-01247-CV, 2007 WL
2239295, at *6 (Tex. App.—Houston [14th Dist.] Aug. 7, 2007, no pet.) (mem.
op.); see also SignAd, Ltd. v. DW PR/Mktg., Media & Pub. Relations, LLC, No. 14-
9
20-00042-CV, 2021 WL 865082, at *8 (Tex. App.—Houston [14th Dist.] Mar. 9,
2021, no pet.) (mem. op.); Brashear v. Dorai, No. 14-19-00194-CV, 2020 WL
5792304, at *1 n.1 (Tex. App.—Houston [14th Dist.] Sept. 29, 2020, no pet.)
(mem. op.). Because Father did not raise in his opening brief any of the issues he
presents in his reply brief, we do not consider them.
CONCLUSION
Having overruled Father’s five issues, we affirm the trial court’s order in suit
to modify parent-child relationship.4
/s/ Meagan Hassan
Justice
Panel consists of Justices Wise, Jewell, and Hassan.
4
In light of our disposition of Father’s issues, we need not address his request to take
judicial notice.
10