Bos v. Smith

556 S.W.3d 293
CourtTexas Supreme Court
DecidedJune 8, 2018
DocketNo. 16–0341
StatusPublished
Cited by122 cases

This text of 556 S.W.3d 293 (Bos v. Smith) is published on Counsel Stack Legal Research, covering Texas Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bos v. Smith, 556 S.W.3d 293 (Tex. 2018).

Opinion

Justice Guzman delivered the opinion of the Court.

Grandparents have a special role in the family unit and often serve as safety nets for their children and grandchildren. Lending a hand, a heart, and an ear can be especially important when loved ones are experiencing the trauma of divorce.1 But being there in times of need sometimes ensnares grandparents in bitter divorce disputes. In this tragic case, the grandparents' adult daughter employed egregious and outrageous tactics to prevent her ex-husband from seeing their two small children, including coaching their three-year-old son to falsely accuse his father of sexual abuse. While the abuse allegations were under investigation, the grandparents supported their daughter emotionally and as a single mother, helping her care for their grandchildren. Seventeen months elapsed before the allegations were fully investigated and the charges declared unfounded, and soon after, the children's mother traded her parental rights to escape incarceration for contempt of court.

While these events were unfolding, the father sued the grandparents, but not the mother, for negligence, defamation, and *297"aiding and assisting" their daughter's interference with his possessory rights in violation of Chapter 42 of the Texas Family Code.2 Following a bench trial, the trial court awarded more than $10.5 million in damages against the grandparents. The court of appeals reversed as to defamation and a small portion of the Family Code damages award but otherwise affirmed the trial court's judgment.3 We affirm the court of appeals' defamation judgment because the claims were either not pleaded or not supported by sufficient evidence, and we reverse as to the remaining claims and render judgment in the grandparents' favor because the record bears no evidence of a Chapter 42 violation or proximate causation.

I. Background

Larry and Mary Bos (Grandfather and Grandmother, respectively, and collectively, Grandparents) adopted Trisha Bos-Smith (Mother) from a Korean orphanage when she was a toddler. In 2004, Mother married Craig Smith (Father) and in short order they were blessed with two sons: Mike in June 2005 and Charlie in January 2007.4 Father's twin daughters from a previous marriage lived with the couple and were around six years old when Mike was born. Mother and Father separated in 2006 when Mother (unbeknownst to Father) was pregnant with Charlie. They divorced in April 2007, when both boys were younger than three years old. Mother was awarded primary custody, with Father having visitation rights as agreed between them until each child attained age three. After the age of three, visitation was to follow the standard possession order.5

Mother was stingy with her assent to visitation, allowing Father to see the boys on only a handful of occasions in the year following the divorce. After Mike turned three in June 2008, Father asserted his rights to visitation under the standard possession order, but Mother remained uncooperative. Father asked Grandmother to encourage Mother to cooperate with Father and permit visitation. They had many conversations on the topic, but one in particular provides the genesis of this dispute.

On Tuesday, October 13, 2008, Father called Grandmother and told her he had the right to possess Mike under the standard possession order for the upcoming weekend and would be collecting him from Mother's house at 6:00 p.m. on Friday evening.6 Father arrived at the appointed time, but the boys were not home because, at Mother's request, Grandmother had taken them to a two-hour birthday party. Mother said she had forgotten about the party. After learning the boys were with Grandmother, Father left. He did not contact Grandmother to locate Mike, nor did he attempt to exercise visitation after the party ended.

The next morning, however, Mother unexpectedly brought both boys to Father's home. The visit lasted a mere two hours. During the visit, Mother called Mike on the phone and, shortly after speaking with him, called 911 to make the first of what would eventually prove to be several false sexual-abuse allegations. According to *298Mother, Mike reported that, during this brief visit, Father's legal assistant, who was working that morning at Father's house, had touched Mike's penis. The police and the Department of Family and Protective Services (DFPS) promptly initiated an investigation, and Mother and Grandmother arrived at Father's house soon after to observe the situation from across the street.

After about two hours, police asked Grandmother to leave, and she took Charlie with her. DFPS required Mike to go to the hospital for a sexual-assault examination, which produced no evidence of sexual abuse. After leaving the hospital with Mike, Mother took him to her parents' house. Mother asked Grandparents to take care of both boys temporarily because the police had advised her not to have contact with them pending an interview with DFPS investigators the following week. Grandparents agreed.

Five days later, Grandparents, Father, Mother, and Mike met with DFPS for a series of interviews. Father learned that Mother was now claiming Father was the actual perpetrator and that she had misunderstood Mike's outcry. Father vehemently denied the allegation. DFPS opened a new investigation and said the boys would be placed in foster care unless Grandparents agreed to monitor Mother's contact with Mike as part of a safety plan. Grandparents agreed, as did Father, and the safety plan was in effect for about six weeks. During this time, Grandparents stayed at Mother's house to supervise her contact with Mike, and Father did not attempt to exercise visitation with either child.

Grandparents quickly found their monitoring duties burdensome, and Grandfather began pressuring DFPS for a resolution. At one point, at his wit's end with the situation, Grandfather told DFPS that (1) Mother was a "perfect" mother; (2) Father was a nut with poor parenting skills; and (3) Father used to abuse his daughters and would brainwash them. Several years later, Grandfather clarified that he had said these things in a desperate attempt to facilitate termination of the monitoring obligation and that Father was actually a "stand up guy."

Amid the ongoing sexual-abuse investigation, Mother began dating Marlon Bruno, a doctor of psychology and DFPS consultant. Bruno quickly became deeply involved in the boys' lives, allowing them to call him "dad" a mere two months into the relationship. Acting in a pseudo-parental role, Bruno supported Mother's efforts to keep the boys from Father as Mike continued to make outcries of sexual abuse by his father and eventually one or both of his twin half-sisters. Bruno reported many of Mike's outcries, took the boys to multiple sexual-assault examinations, and signed hospital paperwork as their parent. As Bruno's involvement with the boys increased, Grandparents' participation declined, partly because Mother did not need them to care for the boys as much and partly because Grandmother suffered a series of health crises that resulted in her extended hospitalization.

DFPS and the police extensively investigated the sexual-abuse allegations, and about a year into the saga, police referred the case against Father to the district attorney.

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Cite This Page — Counsel Stack

Bluebook (online)
556 S.W.3d 293, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bos-v-smith-tex-2018.