in the Interest of J.P. and A.P., Children

NUMBER 13-18-00648-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI - EDINBURG
IN THE INTEREST OF J.P. AND A.P., CHILDREN
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Memorandum Opinion by Chief Justice Contreras
Mother and Father are the divorced parents of J.P and A.P.1 Appellant Mother
appeals the trial court’s final amended order in Father’s suit to modify the parent-child
relationship. By three issues, Mother argues that the trial court erred when it (1) entered
an agreed order after she revoked her consent to the parties’ Rule 11 agreement, (2)
ordered the court appointed counselor and the amicus attorney to determine Mother’s
1 To protect the identity of the children, we refer to those involved in the case by aliases, as
necessary. See TEX. FAM. CODE ANN. § 109.002(d); TEX. R. APP. P. 9.8(b).
visitation and access to the children, and (3) granted overbroad injunctions that restrained
her speech. We reverse in part, affirm as modified in part, and remand for further
proceedings consistent with this memorandum opinion.
I. BACKGROUND
On April 3, 2017, Mother and Father divorced. The divorce decree appointed
Mother as the children’s sole managing conservator, appointed Father as possessory
conservator with a standard possession order, see TEX. FAM. CODE ANN. § 153.312, and
ordered Father to pay child support. Shortly thereafter, Mother changed her residence
and failed to alert Father or the trial court of her new address. As a result, Father was
unable to get visitation and access to the children as mandated by the divorce decree.
On June 19, 2017, Father filed a motion to enforce possession or access to the
children and sought attorney’s fees and to hold Mother in contempt. Father alleged that
Mother had failed to surrender the children to him as ordered by the court. On August 2,
2017, Father filed a petition to modify the parent-child relationship, which he later
amended. On September 6, 2017, the trial court signed an order appointing Jeanette
Cantu-Bazar as attorney ad litem but changed her role to amicus attorney on October 20,
2017. The trial court also issued an order finding this case to be a high conflict case.2
On October 24, 2017, the trial court signed an order appointing Rebecca Campbell as the
expert therapist for the children.
In his fifth amended motion to enforce possession and access, Father alleged
Mother had: failed to surrender the children as required by the court order eleven times;
2 A “high conflict case” is defined as “a suit affecting the parent-child relationship in which the court
finds that the parties have demonstrated an unusual degree of: (A) repetitiously resorting to the adjudicative
process; (B) anger and distrust; and (C) difficulty in communicating about and cooperating in the care of
the children.” TEX. FAM. CODE ANN. § 153.601(2).
2
failed to notify Father or the court of her current residence, phone number, and employer;
filed a false report with the Corpus Christi Police Department;3 and informed Father that
he was prohibited from any further visitation with the children unless he consulted with
Tamara Robertson, the therapist providing care for the children prior to the trial court’s
order appointing Campbell. Among other relief, Father requested temporary injunctions
preventing Mother from: removing the children from Nueces County, withdrawing the
children from the school they were currently enrolled in, hiding the children, making
disparaging remarks about Father or Father’s family in the presence or within the hearing
of the children or on any form of social media, and discussing any litigation concerning
the children in the presence or within the hearing of the children or on any form of social
media. On June 15, 2018, Cantu-Bazar filed a motion for termination of Robertson’s
services, arguing that it was imperative to enforce the court’s order appointing Campbell.
On June 20, 2018, the trial court held a hearing on Father’s motion to enforce
possession and access and Cantu-Bazar’s motion for termination of Robertson’s
services. The court found that Mother had violated the orders in the divorce decree and
found Mother in contempt of court. The trial court assessed Mother’s punishment at 180
days’ confinement in the Nueces County Jail with her term to start that day and 120 days
of the sentence to be suspended. The trial court also ordered that Campbell serve as the
therapist for the children and that Robertson be removed from the case. Finally, the trial
court ordered that Mother have a psychological evaluation and awarded Father $5,000 in
attorney’s fees.
3The record indicates that Mother filed multiple false reports with the police and the Department of
Family and Protective Services alleging the abuse and neglect of the children by Father.
3
On August 13, 2018, the trial court held a hearing on Father’s petition to modify
the parent-child relationship where the parties read an agreement into the record. See
TEX. R. CIV. P. 11. Specifically, the agreement read into the record provided that:
• Father would be the sole managing conservator of the children;
• Father would have exclusive rights to consent to medical care or psychological
counseling and to designate the children’s primary residence;
• Mother would have visitation and access to the children as recommended by
Campbell;
• Father’s child support obligation ceased on July 30, 2018, and Father was
entitled to reimbursement of any overpayment;
• Each party would be obligated to pay one half of the children’s uninsured
medical and dental expenses;
• Father would provide health insurance for the children, with no reimbursement
from Mother for the premiums;
• Mother would begin paying child support on September 1, 2019, pursuant to
the statutory guidelines;
• Mother would be prohibited from contacting the children via telephone, mail, or
email unless recommended by Campbell;
• Mother would continue to be enjoined from contacting the Department of Family
and Protective Services (the Department) or the police alleging harm by Father
or Father’s family without first “going through” either Campbell or Cantu-Bazar;
• Mother would submit to a psychological evaluation;
• Father would waive the prior award of $5,000 in attorney’s fees;
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• Mother would be enjoined from interfering with Father’s possession of the
children in any way, making disparaging remarks about Father or his family in
person or on social media, discussing the litigation concerning the children in
their presence or on social media, making further reports to police without
approval of the trial court, and going within 500 yards of Father’s residence or
work, Father’s parents residence, or the Children’s school without the
recommendation of Campbell;
• Mother would dismiss all pending motions, including those seeking to hold
Father in contempt and the removal of Campbell as the court-appointed
therapist; and
• if the court approved, Mother would be released from custody immediately or
as soon as possible.
Mother testified that she agreed with the terms dictated into the record and asked the trial
court to accept the agreement. The trial court orally announced that it accepted the
parties’ agreement and that it would sign an order releasing Mother from custody that
same day.
That same day, the trial court signed an order releasing Mother from custody. The
order provided that Mother “shall comply with the Agreement read into the record and
approved by the Court today, and with the Order approving the Agreement to be
submitted on or before August 16, 2018.”4
On August 22, 2018, Father filed a motion to enter judgment. On September 4,
2018, Father filed a motion to terminate Campbell as the therapist for the children
4 The record is silent as to whether an order was submitted on or before August 16, 2018.
5
because “Campbell is not willing to serve as a family therapist in this case [because she]
has received threatening and belligerent emails from [Mother] which make further work in
this case with the family untenable.” On September 10, 2018, Father filed a motion for
additional injunctions requesting that Mother be enjoined from any contact with Father,
Father’s parents, his wife, the children, or his in-laws in any manner. Mother filed a
response to Father’s motion to enter judgment in which she stated she was withdrawing
her consent to the parties’ Rule 11 agreement.
On October 25, 2018, the trial court held a hearing on the motion to enter judgment
and on Father’s motion for additional injunctions. Mother appeared and stated she did
not consent to parts of the parties’ agreement. Father testified in support of the newly
requested injunctions. The trial court signed a final order that incorporated the terms of
the parties’ agreement read into the record on August 13, 2018, except the order provided
that the therapist who would determine Mother’s access to the children would be Kate
Rodriguez instead of Campbell. The court also granted Father the newly requested
injunctions. The court’s order specified the duties Father and Mother would have as sole
managing conservator and possessory conservator, respectively. The trial court also
issued an order appointing Rodriguez as the family therapist for the children because
Campbell withdrew from the case. The following day, the trial court signed an amended
order correcting the name of the medical professional appointed to perform Mother’s
psychological evaluation. Mother timely perfected her appeal from that amended final
order on November 26, 2018.
On March 21, 2019, Mother filed an emergency motion for stay with this Court
alleging that Rodriguez informed Mother in November 2018 of her intent to withdraw from
the case, and that Rodriguez’s withdrawal was confirmed in February 2019. Mother
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argued that Rodriguez’s withdrawal “rendered it impossible for [her] to comply with the
[trial court’s] Order’s provisions” and, as a result, she had been effectively “entirely
stripped of her visitation and access rights.” On March 26, 2019, we denied Mother’s
emergency motion, abated the appeal, and remanded the case to the trial court with
instructions to hold an emergency hearing regarding the best interests of the children.
On April 16, 2019, the trial court signed an amended order modifying the October
26, 2019 final judgment and reappointing Cantu-Bazar as amicus attorney for the case.
The order further provided that Mother “shall have possession and access to the children
as ordered by the Court in the ‘Stair Step Visitation for [Mother]’ provisions attached
hereto as Exhibit A, subject to the recommendations of the amicus attorney . . . .” The
trial court also signed an order removing Rodriguez as the therapist and appointing
Courtney Rios in her place. We reinstated the appeal on July 1, 2019.
II. STANDARD OF REVIEW
We review a trial court’s order regarding child custody, control, possession, and
visitation for an abuse of discretion. In re H.N.T., 367 S.W.3d 901, 903 (Tex. App.—
Dallas 2012, no pet.). Likewise, we review the enforcement of Rule 11 agreements and
the grants of permanent injunctions for an abuse of discretion. See Mantas v. Fifth Court
of Appeals, 925 S.W.2d 656, 659 (Tex. 1996) (per curiam); Flowers v. Flowers, 407
S.W.3d 452, 457 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (permanent injunction);
Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 881 (Tex. App.—Waco 2001, no pet.)
(“A trial court’s ruling regarding a Rule 11 agreement is reviewed for abuse of discretion.”).
A court abuses its discretion when it acts without reference to any guiding rules or
principles, or when it fails to analyze or apply the law correctly. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam).
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III. RULE 11 AGREEMENT
By her first issue, Mother argues that the trial court’s order is: (1) void because
she revoked her consent to the parties’ agreement before the trial court rendered its
judgment; and (2) unenforceable because it did not comply with the terms of the
agreement.
1. Consent to the Agreement
Rule 11 of the Texas Rules of Civil Procedure states, “[u]nless otherwise provided
in these rules, no agreement between attorneys or parties touching any suit pending will
be enforced unless it . . . be made in open court and entered of record.” TEX. R. CIV. P.
11. A party has the right to revoke his or her consent to a Rule 11 agreement at any time
before the rendition of judgment. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442,
444 (Tex. 1983); In re Caballero, 441 S.W.3d 562, 573 (Tex. App.—El Paso 2014, orig.
proceeding); Patel v. Eagle Pass Pediatric Health Clinic, Inc., 985 S.W.2d 249, 251 (Tex.
App.—Corpus Christi–Edinburg 1999, no pet.); see also Kanan v. Plantation
Homeowner’s Ass’n Inc., 407 S.W.3d 320, 334 (Tex. App.—Corpus Christi–Edinburg
2013, no pet.) (noting that, where consent to a Rule 11 agreement has been withdrawn,
a court may enforce the agreement through a separate breach of contract claim).
Withdrawal of consent must be effectively communicated to the trial court. In re
Caballero, 441 S.W.3d at 574.
The mere approval of a settlement agreement does not necessarily constitute
rendition of judgment. S & A Rest. Corp. v. Leal, 892 S.W.2d 855, 857–58 (Tex. 1995)
(per curiam). Judgment is rendered when the trial court officially announces its decision
in open court or by written memorandum filed with the clerk. Id. The rendition of judgment
is a present act that decides the issues upon which the ruling is made, and the words
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used by the trial court must indicate its intent to render judgment at that time, rather than
in the future. Id.; see State v. Naylor, 466 S.W.3d 783, 788 (Tex. 2015) (quoting S & A
Rest., 892 S.W.2d at 858). Thus, the words, “The divorce is granted,” constitute a
rendition of judgment, Araujo v. Araujo, 493 S.W.3d 232, 236 (Tex. App.—San Antonio
2016, no pet.), but the words, “I am going to grant the divorce in this case,” do not. James
v. Hubbard, 21 S.W.3d 558, 561 (Tex. App.—San Antonio 2000, no pet.).
The parties dispute whether the trial court merely accepted the parties’ agreement
at the hearing on August 13, 2018, or whether it also rendered judgment at that time. At
the hearing, the trial court stated:
[The Court]: All right. The Court will approve the agreement
of the parties and I will order the release of
[Mother]. However, I will suspend the balance
of the contempt period and keep it pending for
at least two years to ensure your good
compliance with the orders of this Court. Any
questions?
[Mother’s counsel]: No, sir.
[Father’s counsel]: No. Thank you, Your Honor.
[The Court]: All right. I’ll need an order, but to effect her
release immediately I’ll draw up a short order
that will order her release today and suspend
the balance of the commitment.
[Father’s counsel]: Yes, Your Honor. I’ll submit a written form of
order to [Mother’s counsel] to approve as to
form . . . .
Here, the trial court did not explicitly say it was rendering or granting the judgment.
Nevertheless, by releasing Mother from jail that day and signing an order to that effect,
the trial court clearly indicated its intent to render judgment at that time. See Taylor, 466
S.W.3d at 788; S & A Rest., 892 S.W.2d at 858; see also Kelley v. Pirtle, 826 S.W.2d
653, 654 (Tex. App.—Texarkana 1992, writ denied) (“Entry of judgment is a purely
9
ministerial act by which the trial court’s judgment is made of record and preserved.”).5
We conclude that judgment was rendered on August 13, 2018, both in open court and by
written memorandum filed with the clerk. Accordingly, because the trial court rendered
judgment on that day, Mother’s subsequent attempts to withdraw her consent were futile,
and we reject her argument that the trial court’s judgment is void because she revoked
her consent prior to the rendition of judgment. See Kelley, 826 S.W.2d at 654–55.
2. Compliance with the Agreement
Mother further argues that the order is unenforceable because it failed to comply
with the terms of the parties’ agreement as recited at the hearing. See TEX. R. CIV. P. 11.
Specifically, Mother complains that the order named Rodriguez to determine her access
and possession to the children, rather than Campbell. At the time of the hearing on
August 13, 2018 when the parties read their agreement into the record, Campbell was
the court-appointed therapist; however, she withdrew from the case before the court
signed the amended final order on October 26, 2018. Rodriguez was the court appointed
therapist for the children at the time the order was signed.
Rule 11 agreements are contracts relating to litigation and are subject to general
rules of contract construction. In re Caballero, 441 S.W.3d at 574; see Kanan, 407
S.W.3d at 327–28. A judgment rendered on a Rule 11 agreement must be “in strict or
literal compliance” with the terms recited into the record and cannot remove or add
material terms. Chisholm v. Chisholm, 209 S.W.3d 96, 98 (Tex. 2006) (per curiam); see
Vickrey v. Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976) (per curiam); Patel,
5 The trial court issued findings of fact and conclusions of law in which it stated that it had rendered
judgment at the hearing. However, what the trial court believes to be the legal effect of its act is not
dispositive on rendition. In re Marriage of Russell, 556 S.W.3d 451, 459 (Tex. App.—Houston [14th Dist.]
2018, orig. proceeding). Rather, rendition is a present act and the words expressed by the trial court must
clearly indicate the intent to render immediate judgment at that time, not in the future. Id.; see S & A Rest.
v. Leal, 892 S.W.2d 855, 858 (Tex. 1995) (per curiam).
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985 S.W.2d at 252. When the agreed judgment is not rendered in strict compliance with
the terms of the agreement, the judgment is unenforceable and must be set aside.
Chisholm, 209 S.W.3d at 98; Patel, 985 S.W.2d at 252; Nuno v. Pulido, 946 S.W.2d 448,
451 (Tex. App.—Corpus Christi–Edinburg 1997, no writ). A judgment is not in “strict or
literal compliance” with the terms of the agreement if it improperly removes or adds
material terms. See Chisholm, 209 S.W.3d at 98.
The essential and material terms of an agreement are determined on a case-by-
case basis. Fischer v. CTMI, L.L.C., 479 S.W.3d 231, 237 (Tex. 2016). Material and
essential terms are those that parties would reasonably regard as “vitally important
ingredients” of the bargain. Id. “Whether a term forms an essential element of a contract
depends primarily upon the intent of the parties.” Kanan, 407 S.W.3d at 330 (quoting
Domingo v. Mitchell, 257 S.W.3d 34, 40–41 (Tex. App.—Amarillo 2008, pet. denied)).
We interpret Rule 11 agreements based on the intention of the parties from the
language of the entire agreement in light of the surrounding circumstances, including the
state of the pleadings, the allegations therein, and the attitude of the parties with respect
to the issues. Kanan, 407 S.W.3d at 328; Garza v. Villareal, 345 S.W.3d 473, 479 (Tex.
App.—San Antonio 2011, pet. denied). In some circumstances, an agreement may be
upheld by supplying missing terms. In re G.D.H., 366 S.W.3d 766, 770 (Tex. App.—
Amarillo 2012, no pet.); Kanan, 407 S.W.3d at 330.
In this case, the surrounding circumstances, the state of the pleadings, the
allegations therein, and the attitude of the parties indicated that the purpose of the parties’
agreement was to (1) resolve the visitation and custody dispute between the parties and
(2) implement a plan for visitation and access for both parents that would be in the best
interest of the children. In order to achieve this, the parties agreed to have the court-
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ordered therapist for the children determine Mother’s visitation and access. There is
nothing in the record that indicates that the appointment of Campbell in particular was
essential in Mother’s consideration of the bargain; on the contrary, Mother attempted to
have Campbell removed as the therapist before the trial court found her in contempt.
Furthermore, Mother does not explain why the name of the therapist was a material term
of the parties’ agreement or how it undermined the intent of the parties. See R.H. v.
Smith, 339 S.W.3d 756, 765 (Tex. App.—Dallas 2011, no pet.). We conclude that the
designation of a different health professional (Rodriguez) as the court-ordered therapist
responsible for determining Mother’s access and visitation was not an improper material
alteration to the parties’ agreement. See Fischer, 479 S.W.3d at 237; Kanan, 407 S.W.3d
at 330; McLendon v. McLendon, 847 S.W.2d 601, 606 (Tex. App.—Dallas 1992, writ
denied) (“The law does not require the parties to dictate and agree to all of the provisions
to be contained in all of the documents necessary to effectuate the purposes of the
agreement; it only requires the parties to reach an agreement as to all material terms of
the agreement and prevents the trial court from supplying additional terms to which the
parties have not agreed.”).
Finally, Mother argues that the order did not comply with the parties’ agreement
because it delineates Mother’s rights as possessory conservator and Father’s right as
sole managing conservator, which were not read into the record. We disagree. The
parties agreed that Father would be the children’s sole managing conservator and Mother
would be the possessory conservator, and the order provides the specific rights and
duties of a sole managing conservator and a possessory conservator, respectively, as
provided by the family code. See TEX. FAM. CODE ANN. §§ 153.073 (providing the rights
of parents at all times), 153.132 (providing the rights and duties of parent appointed sole
12
managing conservator), 153.192 (providing the rights and duties of parent appointed
possessory conservator); see also id. § 153.071 (providing that the trial court shall specify
the rights and duties of a parent appointed a conservator). This did not materially alter or
add terms to the parties’ agreement; instead, these terms were implicit in the agreement.6
See McLendon, 847 S.W.2d at 606.
3. Summary
We overrule Mother’s first issue.
IV. CONFLICTING ROLES IN ORDER
By her second issue, Mother argues the trial court abused its discretion when it (1)
ordered Rodriguez to serve as parenting facilitator and the children’s therapist and (2)
ordered that Cantu-Bazar serve as parenting facilitator and child custody evaluator
despite previously having served as the attorney ad litem for the children.
1. Rodriguez
Mother argues that the trial court abused its discretion when it appointed Rodriguez
to serve as both parenting facilitator and the children’s therapist after Campbell withdrew.
Rodriguez has since been removed from the case.
The mootness doctrine dictates that courts avoid rendering advisory opinions by
only deciding issues that present a “live” controversy at the time of decision. Love
Terminal Partners v. City of Dallas, 256 S.W.3d 893, 897 (Tex. App.—Dallas 2008, no
pet.). An issue becomes moot when (1) it appears that one seeks to obtain a judgment
6 In her brief, Mother also states in a single sentence that the judgment did not comply with the
parties’ agreement because “[t]he Order also contains the broad injunction prohibiting [Mother] from
‘attempting to contact [Father], his parents, his wife, the children subject of this suit, or his in laws in any
manner . . . or approaching the person listed above in person, or approaching them in any manner.”
However, Father pleaded and offered evidence in support of this injunction at the hearing on Father’s
motion to enter judgment, as we discuss below in part V. Therefore, this injunction was not part of the
agreement, and the inclusion of it did not materially alter or add terms to it.
13
on some controversy, which in reality does not exist; or (2) when one seeks a judgment
on some matter which, when rendered for any reason, cannot have any practical legal
effect on a then-existing controversy. Id.; see Heckman v. Williamson County, 369
S.W.3d 137, 162 (Tex. 2012) (“Put simply, a case is moot when the court’s action on the
merits cannot affect the parties’ rights or interests.”).
On October 25, 2018, the trial court appointed Rodriguez “to serve as an expert
therapist to recommend visitation with the children and [Mother,] to provided [sic]
psychiatric evaluation and counseling to [Mother,]” and to “assist the Court in protecting
the best interests of” the children. However, the trial court removed Rodriguez from the
case on April 16, 2019. Accordingly, we conclude this argument is moot. See Heckman,
369 S.W.3d at 162; Love Terminal Partners, 256 S.W.3d at 897.
2. Cantu-Bazar
Mother also argues that the trial court erred when, after we abated the appeal, it
appointed Cantu-Bazar “to serve as an amicus attorney charged with making
recommendations regarding [Mother’s] possession and access to the children.”
First, Mother argues that Cantu-Bazar was appointed as a “parenting facilitator”
despite previously having served as the attorney ad litem for the children.
A parenting facilitator may not serve in any other professional capacity at
any other time with any person who is a party to, or the subject of, the suit
in which the person serves as parenting facilitator, or with any member of
the family of a party or subject. A person who, before appointment as a
parenting facilitator in a suit, served in any other professional capacity with
a person who is a party to, or subject of, the suit, or with any member of the
family of a party or subject, may not serve as parenting facilitator in a suit
involving any family member who is a party to or subject of the suit.
TEX. FAM. CODE ANN. § 153.6102(e). Under the Texas Family Code, a “parenting
facilitator” means an impartial third party:
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(A) who regardless of the title by which the person is designated by the
court, performs any function described by [§] 153.6061 in a suit; and
(B) who
(i) is appointed under this subchapter by the court on its own motion
or on a motion or agreement of the parties to assist parties in
resolving parenting issues through procedures that are not
confidential; and
(ii) is not appointed under another statute or a rule of civil procedure.
Id. § 153.601(3) (emphasis added).
In this case, Cantu-Bazar was originally appointed as the attorney ad litem for J.P.
and A.P. on September 6, 2017, and subsequently assigned to the role of amicus attorney
on October 20, 2017. On April 16, 2019, as a result of Rodriguez withdrawing from the
case, the trial court reappointed Cantu-Bazar as the amicus attorney and ordered that
Mother have possession and access to the children as recommended by Cantu-Bazar.
See id. § 107.021. This order amended the trial court’s October 26 final order in Father’s
suit to modify the parent-child relationship.7
While the trial court tasked Cantu-Bazar with duties that a “parenting facilitator”
performs,8 the trial court appointed Cantu-Bazar to serve on the case as amicus attorney
under § 107.021 of the family code. See id. Accordingly, Cantu-Bazar does not satisfy
the definition of a “parenting facilitator” because she was appointed under another statute,
see id. § 153.601(3)(B)(ii), and the exclusion Mother cites in § 153.6102(e) is
inapplicable. See id. § 153.6102(e).
7 In his brief, Father refers to the order re-appointing Cantu-Bazar as amicus attorney as an “Interim
Temporary Orders Pending Appeal.” However, the language in the order makes it clear that it was an
amendment to the October 26, 2018, final judgment.
8 Among other duties, the parenting facilitator may be tasked with aiding parties in implementing
parenting plans and complying with a court’s order regarding conservatorship or possession of and access
to the child. See TEX. FAM. CODE ANN. §§ 156.606(a); 153.6061(a).
15
Next, Mother argues the trial court erred by appointing Cantu-Bazar as a “child
custody evaluator” despite previously having served as the attorney ad litem for the
children.
An individual may not be appointed as a child custody evaluator in a suit if
the individual has worked in a professional capacity with a party to the suit,
a child who is the subject of the suit, or a member of the party’s or child’s
family who is involved in the suit.
Id. § 107.107(e). “Child custody evaluator” means “an individual who conducts a child
custody evaluation under this subchapter.” Id. § 107.101(2).
“Child custody evaluation” means an evaluative process ordered by a court
in a contested case through which information, opinions, recommendations,
and answers to specific questions asked by the court may be:
(A) made regarding:
(i) conservatorship of a child, including the terms and conditions of
conservatorship;
(ii) possession of or access to a child, including the terms and
conditions of possession or access; or
(iii) any other issue affecting the best interest of a child; and
(B) made to the court, the parties to the suit, the parties’ attorneys, and any
other person appointed under this chapter by the court in the suit.
Id. § 107.101(1) (emphasis added).
As noted, Cantu-Bazar was originally appointed as the attorney ad litem for J.P.
and A.P. and has therefore previously worked in a professional capacity with the children
who are subject of the suit. See id. § 107.107(e). Further, the trial court’s order
reappointing Cantu-Bazar tasked her with making recommendations regarding Mother’s
possession and access to the children. See id. § 107.101(1)(A)(2). Accordingly, we
conclude the trial court abused its discretion when it subsequently tasked Cantu-Bazar
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with duties that qualified her as a child custody evaluator.9 See id. §§ 107.101(1),
107.107(e); Worford, 801 S.W.2d at 109.
3. Summary
We sustain Mother’s second issue in part, reversing the trial court’s order
amending the October 26 final judgment to the extent it provides that Mother’s access
and possession to the children is subject to the recommendations of Cantu-Bazar. We
overrule the remainder of Mother’s second issue.
V. INJUNCTIONS
By her third issue, Mother argues that the trial court abused its discretion when it
enjoined her from contacting the police or the Department regarding Father, Father’s
family, and the children. Mother also generally argues that “the injunctions are overly
broad, enjoin lawful activity, and lack the sufficient bases required for injunctive
relief . . . .”
The trial court’s order enjoined Mother from:
1. Interfering in any way with [Father’s] possession of the children or taking
or retaining possession of the children, directly or in concert with other
persons, except as permitted by order of the Court.
2. Attempting to communicate with the children in any manner except as
recommended by Kate Rodriguez in writing.
3. Making disparaging remarks regarding [Father] or [Father’s] family in the
presence or within the hearing of the children or on any form of social
media;
4. Discussing any litigation concerning the children in the presence or
within the hearing of the children or on any form of social media; and
9 Father does not dispute that Cantu-Bazar is a “child custody evaluator” as defined by the family
code.
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5. Making further reports to the police and/or [the Department] regarding
[Father, the children, or Father’s] family members without approval of
Kate Rodriguez or Cantu-Bazar.
6. Going about or within 500 yards of the residence or employment
locations of [Father], his parents, or the children’s schools, without the
recommendation of Kate Rodriguez.
7. Attempting to contact [Father], his parents, his wife, the children subject
of this suit, or his in-laws in any manner, which includes calling, emailing,
texting, writing or approaching the persons listed above, or approaching
them in any manner.
With the exception of injunction number seven, all other injunctions granted were
agreed upon by Mother and Father and read into the record as part of the parties’ Rule
11 agreement. Thus, Mother consented to the first six injunctions and is bound by them.
See TEX. R. CIV. P. 11; Knapp Med. Ctr. v. De La Garza, 238 S.W.3d 767, 768 (Tex. 2007)
(orig. proceeding) (per curiam); Kennedy v. Hyde, 682 S.W.2d 525, 528–30 (Tex. 1984);
Transamerica Corp. v. Braes Woods Condo Ass’n, 580 S.W.3d 733, 737–38 (Tex. App.—
Houston [14th Dist.] 2019, no pet.); Coale v. Scott, 331 S.W.3d 829, 831–32 (Tex. App.—
Amarillo 2011, no pet.).
As to injunction number seven, to be entitled to a permanent injunction, a party
must prove: (1) a wrongful act, (2) imminent harm, (3) irreparable injury, and (4) no
adequate remedy at law. Leibovitz v. Sequoia Real Estate Holdings, L.P., 465 S.W.3d
331, 350 (Tex. App.—Dallas 2015, no pet.); Indian Beach Prop. Owners’ Ass’n v. Linden,
222 S.W.3d 682, 690 (Tex. App.—Houston [1st Dist.] 2007, no pet.); see also Grigsby v.
Coker, 904 S.W.2d 619, 620–21 (Tex. 1995); Davenport v. Garcia, 834 S.W.2d 4, 8 (Tex.
1992) (noting that Texas’s “free speech provision is broader than the First Amendment”
and that a gag order in civil judicial proceedings requires a showing of irreparable harm,
among other elements).
18
However, these requirements are not strictly applied in the child custody context.
See In re S.V., No. 05-16-00519-CV, __ S.W.3d __, __, 2017 WL 3725981, at *11 (Tex.
App.—Dallas Aug. 20, 2017, pet. denied) (noting that “injunctions contained in a SAPCR
order need not meet [the traditional injunction] prerequisites”); King v. Lyons, 457 S.W.3d
122, 131 (Tex. App.—Houston [1st Dist.] 2014, no pet.); Peck v. Peck, 172 S.W.3d 26,
35 (Tex. App.—Dallas 2005, pet. denied); see, e.g., Messier v. Messier, 389 S.W.3d 904,
908 (Tex. App.—Houston [14th Dist.] 2012, no pet.); O’Connor v. O’Connor, 245 S.W.3d
511, 518 (Tex. App.—Houston [1st Dist.] 2007, no pet.); MacCallum v. MacCallum, 801
S.W.2d 579, 586–87 (Tex. App.—Corpus Christi–Edinburg 1990, writ denied) (noting that,
in child custody cases, the trial court’s efforts to exercise broad, equitable powers in
determining what will be best for the future welfare of a child should be unhampered by
narrow technical rulings). Rather,
a suit properly invoking the jurisdiction of a court with respect to custody
and control of a minor child vests that court with decretal powers in all
relevant custody, control, possession[,] and visitation matters involving the
child. The courts are given wide discretion in such proceedings. Technical
rules of practice and pleadings are of little importance in determining issues
concerning the custody of children.
Leithold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) (internal citations omitted) (emphasis
added); see also In re B.J.H.-T., No. 12-09-00157-CV, 2011 WL 721511, at *2 (Tex.
App.—Tyler Mar. 2, 2011, pet. denied) (mem. op.) (noting that, “in cases affecting the
parent-child relationship, . . . the best interest of the child is always the overriding
consideration . . . .”). Trial courts are given wide latitude in determining the best interest
of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Scoggins v.
Trevino, 200 S.W.3d 832, 836 (Tex. App.—Corpus Christi–Edinburg 2006, no pet.).
Here, after the parties read their Rule 11 agreement into the record but before the
trial court signed the final order, Father filed a motion for additional injunctions requesting
19
the relief granted in injunction number seven. At the hearing on his motion to enter
judgment, Father brought his motion for the additional injunction to the trial court’s
attention and presented additional evidence for his request.
Father testified he was requesting this injunction because Mother had repeatedly
slandered Father, had unpleasantries with Father’s wife, and caused emotional turmoil to
his family. There was also evidence before the trial court that Mother coached the
children to support Mother’s claim of sexual abuse by Father’s stepson and physical
abuse at the hands of Father and had also attempted to alienate the children from
Father.10 Father testified Mother had made allegations to police officers that the paternal
grandmother was not feeding the children, that the paternal grandfather had sexually
abused the children, and that the Department had investigated at least four allegations
against Father and his family and that none were found to have merit. Father explained
that Mother would call multiple times a day when he had possession of the children and
that it was disruptive to their time together. Furthermore, the trial court had previously
issued an order finding this to be a high conflict case, see TEX. FAM. CODE ANN.
§ 153.601(2), and the trial court found that Mother had violated its orders numerous times.
According to Father, there was no reason for Mother to be able to contact him or any of
the other individuals listed and that it would be in the children’s best interest if Mother and
Father communicated through their attorneys.
10 Upon Mother’s request, the trial court issued findings of fact and conclusions of law regarding
the amended final judgment. The trial court’s findings of fact provided that Mother “violated numerous
court-ordered provisions of the divorce after such divorce. This includes failure to permit visitation, making
reports to police and [the Department] in violation of temporary orders, failing to attend court ordered
therapy, and other violations as shown at the June [20], 2018, hearing.” The trial court’s conclusions of law
provided that the “judgment is in the best interest of the children.” The findings of fact are supported by the
record.
20
Due to Mother’s behavior, the nature of the case, and the negative impact caused
by Mother’s communications with the listed individuals, the trial court could have
concluded that it was in the best interest of the children to enjoin Mother from the activities
listed in injunction number seven. See Gillespie, 644 S.W.2d at 451; O’Connor, 245
S.W.3d at 518; McCallum, 801 S.W.2d at 587. Accordingly, the trial court had a basis for
granting Father’s motion for additional injunctions. See Gillespie, 644 S.W.2d at 451;
Peck, 172 S.W.3d at 35–36; McCallum, 801 S.W.2d at 587; O’Connor, 245 S.W.3d at
518; see also In re C.E.C., No. 05-17-01482-CV, 2018 WL 3062454, at *8–9 (Tex. App.—
Dallas June 21, 2018, no pet.) (mem. op.); In re B.J.H.-T., 2011 WL 721511, at *2; In re
B.J.W.S., No. 2010 WL 4396291, at *9 (Tex. App.—Houston [14th Dist.] Nov. 4, 2010, no
pet.) (mem. op.).
Nevertheless, an injunction must not be so broad as to enjoin a defendant from
activities that are a lawful and proper exercise of his or her rights. Computek Comput. &
Office Supplies, Inc. v. Walton, 156 S.W.3d 217, 221 (Tex. App.—Dallas 2005, no pet.).
On the other hand, an injunction should be broad enough to prevent a repetition of the
evil sought to be corrected. San Antonio Bar Ass’n v. Guardian Abstract & Title Co., 291
S.W.2d 697, 702 (Tex. 1956). Where a party’s acts are divisible, and some acts are
permissible and some are not, an injunction should not issue to restrain actions that are
legal or about which there is no asserted complaint. Computek Comput., 156 S.W.3d at
221. Thus, the entry of an injunction that enjoins lawful as well as unlawful acts may
constitute an abuse of discretion. Id.; see also Robles v. Mann, No. 13-14-00211-CV,
2016 WL 1613316, at *4 (Tex. App.—Corpus Christi–Edinburg Apr. 21, 2016, no pet.)
(mem. op.).
21
Here, injunction number seven prevented Mother from communicating with the
children in “any manner,” despite the order also providing that Mother was to contact the
children and have access and possession of the children as provided by the court-
appointed therapist. Accordingly, the injunction was overly broad because it enjoined
Mother from lawful acts. See Computek Comput., 156 S.W.3d at 221. Thus, we conclude
the trial court abused its discretion when it enjoined Mother from communicating with the
children in “any manner.” See id.
We sustain Mother’s third issue in part, concluding that injunction number seven is
overly broad to the extent it enjoined Mother from contacting the children in any manner.
We overrule the remainder of Mother’s third issue.
VI. CONCLUSION
We reverse the trial court’s order amending the final judgment to the extent it
provides that Mother’s access and possession to the children be subject to the
recommendations of Cantu-Bazar. We modify injunction number seven in the trial court’s
final amended order to provide that Mother is enjoined from
Attempting to contact [Father], his parents, his wife, the children subject of
this suit, or his in-laws in any manner, which includes calling, emailing,
texting, writing or approaching the persons listed above, or approaching
them in any manner, except Mother may contact the children as determined
by the court-appointed therapist.
We affirm the remainder of the judgment as modified and remand for further
proceedings consistent with this memorandum opinion.
DORI CONTRERAS
Chief Justice
Delivered and filed the 9th
day of January, 2020.
22