Chad Lee S. v. Melinda A. S.

Opinion

COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH

NO. 02-14-00135-CV

CHAD LEE S. APPELLANT

V.

MELINDA A. S. APPELLEE

----------

FROM THE 158TH DISTRICT COURT OF DENTON COUNTY TRIAL COURT NO. 2012-20066-158

MEMORANDUM OPINION1

Appellant Chad Lee S. (Father) appeals from the trial court’s final decree

of divorce. After a trial on the conservatorship issues, the jury found that

Appellee Melinda A. S. (Mother) should be the sole managing conservator of

their child and that Father should not be possessory conservator. The trial court

heard the remaining issues and entered judgment conforming to the jury’s

1 See Tex. R. App. P. 47.4. verdict. In four issues, Father challenges the trial court’s judgment with respect

to the conservatorship of their child. We affirm.

I. Background

Mother and Father began dating in the spring of 2008. They married in

March 2011 and had one child in October 2011 (the Child). On January 25,

2012, Mother filed a divorce petition, seeking sole managing conservatorship of

the Child. Mother also filed an application for protective order requesting, among

other things, that the trial court prohibit Father from communicating directly with

Mother or the Child and from coming within 200 feet of them.

Father filed a general denial and counterpetition for divorce and temporary

orders. On February 8, 2012, the trial court entered agreed interim orders

enjoining both parties from communicating with each other directly and from

going within 200 feet of the other party’s residence or place of employment. The

agreed temporary orders also enjoined Father from taking or attempting to take

the Child from Mother and ordered that the Child remain in Mother’s exclusive

possession and control pending a temporary hearing.

After a hearing on February 29, 2012, the trial court entered temporary

orders appointing both parties as temporary joint managing conservators of the

Child, with Mother having the exclusive right to determine the Child’s primary

residence. The trial court awarded Father possession of the Child for two hours

every Tuesday and Thursday and for four hours every Sunday. The temporary

2 orders specified that the Child was to be surrendered to Father at Mother’s

residence and that Father was to return the Child to Mother at her residence.

On October 26, 2012, Father filed a motion to modify the temporary orders,

alleging that Mother and Mother’s parents were videotaping the exchanges of the

Child “while attempting to provoke a negative reaction from [Father]. As such,

the present orders relating to the exchange of the [C]hild have become

unworkable and are no longer in the best interest of the [C]hild.” Father asked

the trial court to order the parties to exchange possession at a police station

rather than Mother’s residence. Father amended his motion to modify on April

24, 2013, requesting that the trial court allow Father to designate a competent

adult to pick up the Child because Mother would not allow anyone other than

Father to pick up the Child and increase his periods of possession and access

because Mother refused to allow him possession and access to the Child beyond

the periods awarded to Father in the temporary orders.

After a hearing on April 29, 2013, the trial court entered modified

temporary orders increasing Father’s periods of possession to four hours on

Tuesdays and Thursdays and to eight hours on Sundays. Both parties were

permitted to designate a competent adult to pick up and drop off the Child. The

modified temporary orders also outlined a procedure for surrender and return of

the Child at Mother’s residence that prevented Mother and Father from having

any direct contact with each other.

3 Over the course of five days in August 2013, the parties tried the

conservatorship issue to a jury. Mother’s live petition requested that she be

appointed as sole managing conservator of the Child and that Father not be

named as possessory conservator. The jury found that Mother should be

appointed managing conservator and that Father should not be possessory

conservator.

Immediately after the jury returned the verdict, the trial court announced

that in light of the jury’s findings, it was suspending all temporary orders and

entered an order stating that Father not have possession of or access to the

Child pending the entry of a final divorce decree. Father moved for a judgment

non obstante verdicto (JNOV), asserting that the evidence was legally and

factually insufficient to support the jury’s verdict on possessory conservatorship

and that the trial court erred in revoking Father’s right to possession of and

access to the Child based on that finding. See Tex. R. Civ. P. 301. The trial

court denied the motion.

The trial court heard the child support and property division issues on

September 17, 2013. On October 29, 2013, the trial court entered a final divorce

decree, which incorporated the jury’s verdict, denied Father conservatorship of,

access to, and possession of the Child, ordered Father to pay child support, and

divided the marital property.

Father timely filed a motion for new trial, arguing in part that family code

sections 105.002(c) and 153.191 were unconstitutional as applied to him. See

4 Tex. Fam. Code Ann. §§ 105.002(c), 153.191 (West 2014); Tex. R. Civ. P. 320,

329b. He contended that

[b]ecause of the [parental] right’s elevated status, the standard of proof is elevated from “preponderance of the evidence” to “clear and convincing evidence.” . . .

....

The application of Section 153.191 to [Father] in this case and the court’s ruling is a denial of constitutional rights of due process in that the court’s ruling operates as a de facto termination of the parental rights of [Father] to care for, control, educate and manage the upbringing of his child with a lower standard of proof than that required by Section 161.001 Texas Family Code and the United States Constitution, which requires proof by clear and convincing evidence that a parent has committed any of a number of acts listed in the statute.

On January 17, 2014, the trial court granted Father a new trial as to

conservatorship on the sole ground that Father’s

due process rights under the 14th Amendment of the United States Constitution and Article I, Section 19 of the Texas Constitution were violated when the jury did not name [him] a possessory conservator in Question #5 of the jury charge, creating a de facto termination under a preponderance of the evidence standard, rather than a clear and convincing standard.2

On the same date, the trial court also entered an interim order granting Father

limited access to the Child.

Mother filed a petition for writ of mandamus in this court, asserting that the

trial court acted arbitrarily and abused its discretion by disregarding the jury’s

2 The trial court signed an identical order granting Father’s motion for new trial on January 24, 2014.

5 verdict and ordering a new trial because the trial court’s stated reason for

granting a new trial was legally inappropriate. See In re United Scaffolding, Inc.,

377 S.W.3d 685, 688–89 (Tex. 2012) (orig. proceeding) (holding a trial court

does not abuse its discretion if its stated reason for granting a new trial is legally

appropriate and is specific enough to indicate that the trial court “derived the

articulated reasons from the particular facts and circumstances of the case at

hand”). We agreed with Mother, stating

While the trial court’s reason here is specific, it is not a legally appropriate reason. The trial court’s order granting a new trial based on Father’s “de facto” termination argument violates section 105.002(c)(1)(C) of the family code, which provides that a trial court may not “contravene a jury verdict” on the issue of the appointment of a possessory conservator. The order also ignores the different burdens of proof in custody and termination cases. Finally, the trial court’s order overlooks the law that allows a parent, even a nonconservator like Father, to seek modification of a conservatorship order and that gives a trial court discretion to grant modification if it is in the child’s best interest and the parent’s or child’s circumstances have materially and substantially changed since the order was rendered. It is this law that differentiates Father from parents whose relationships with their children have been permanently severed, and it is this law that provides Father and other similarly situated parents due process.

In re M.S., No. 02-14-00079-CV, 2014 WL 1510059, at *2 (Tex. App.—Fort

Worth Apr. 17, 2014, orig. proceeding [mand. denied]) (mem. op.) (citations

omitted). We granted Mother’s petition and directed the trial court to vacate its

orders granting Father’s motion for new trial as well as its interim order granting

Father access to the Child. See id. The trial court promptly vacated the orders

6 and re-entered its original final divorce decree. This decree is the subject of this

appeal.

II. Denial of Father’s Motion for JNOV

In the first part of his first issue, Father contends the trial court erred by

denying his motion for JNOV because family code section 105.002(c) did not

prevent the trial court from contravening the jury’s verdict not appointing Father

as possessory conservator. See Tex. Fam. Code Ann. § 105.002(c). Section

105.002(c)(1)(C) provides that a trial court “may not contravene a jury verdict on

the issue[] of . . . the appointment of a possessory conservator.” Id.

§ 105.002(c)(1)(C). Father argues that because “non-appointment is not

addressed in the statute, the trial court was free to contravene the jury’s finding.”

“Statutory construction is a legal question that we review de novo,

ascertaining and giving effect to the Legislature’s intent as expressed by the plain

and common meaning of the statute’s words.” F.F.P. Operating Partners, L.P. v.

Duenez, 237 S.W.3d 680, 683 (Tex. 2007) (citing Tex. Dep’t of Transp. v. City of

Sunset Valley, 146 S.W.3d 637, 642 (Tex. 2004)). Section 105.002(c)(1)(C)

states that the trial court may not contravene a jury verdict on the issue of the

appointment of a possessory conservator. See Tex. Fam. Code Ann.

105.002(c)(1)(C). The “issue[] of . . . the appointment of a possessory

conservator” necessarily includes both the appointment and “non-appointment” of

a parent as possessory conservator. The jury decided this issue against Father.

Thus, under the plain language of section 105.002(c)(1)(C), the trial court could

7 not grant Father’s motion for JNOV. See M.S., 2014 WL 1510059, at *2

(concluding that order granting Father a new trial based on “de facto” termination

argument violated section 105.002(c)(1)(C)). Accordingly, we overrule this

portion of Father’s first issue.

III. Sufficiency of the Evidence Supporting the Jury’s Conservatorship Findings

In the latter portion of his first issue and in his second issue, Father argues

there is no evidence to support the jury’s findings that he should not be appointed

joint managing conservator or possessory conservator of the Child.

A. Standard of Review

When, as here, no objection was made to the jury charge, the sufficiency

of the evidence is reviewed in light of the charge submitted. Romero v. KPH

Consolidation, Inc., 166 S.W.3d 212, 221 (Tex. 2005). We may sustain a legal

sufficiency challenge only when (1) the record discloses a complete absence of

evidence of a vital fact; (2) the court is barred by rules of law or of evidence from

giving weight to the only evidence offered to prove a vital fact; (3) the evidence

offered to prove a vital fact is no more than a mere scintilla; or (4) the evidence

establishes conclusively the opposite of a vital fact. Uniroyal Goodrich Tire Co.

v. Martinez, 977 S.W.2d 328, 334 (Tex. 1998), cert. denied, 526 U.S. 1040

(1999); Robert W. Calvert, “No Evidence” and “Insufficient Evidence” Points of

Error, 38 Tex. L. Rev. 361, 362–63 (1960). In determining whether there is

legally sufficient evidence to support the finding under review, we must consider

8 evidence favorable to the finding if a reasonable factfinder could and disregard

evidence contrary to the finding unless a reasonable factfinder could not. Cent.

Ready Mix Concrete Co. v. Islas, 228 S.W.3d 649, 651 (Tex. 2007); City of Keller

v. Wilson, 168 S.W.3d 802, 807, 827 (Tex. 2005).

Anything more than a scintilla of evidence is legally sufficient to support the

finding. Cont’l Coffee Prods. Co. v. Cazarez, 937 S.W.2d 444, 450 (Tex. 1996);

Leitch v. Hornsby, 935 S.W.2d 114, 118 (Tex. 1996). When the evidence offered

to prove a vital fact is so weak as to do no more than create a mere surmise or

suspicion of its existence, the evidence is no more than a scintilla and, in legal

effect, is no evidence. King Ranch, Inc. v. Chapman, 118 S.W.3d 742, 751 (Tex.

2003), cert. denied, 541 U.S. 1030 (2004) (citing Kindred v. Con/Chem, Inc., 650

S.W.2d 61, 63 (Tex. 1983)). More than a scintilla of evidence exists if the

evidence furnishes some reasonable basis for differing conclusions by

reasonable minds about the existence of a vital fact. Rocor Int’l, Inc. v. Nat’l

Union Fire Ins. Co., 77 S.W.3d 253, 262 (Tex. 2002).

The burden of proof in conservatorship cases is by a preponderance of the

evidence. Tex. Fam. Code Ann. § 105.005 (West 2014); see In re W.M., 172

S.W.3d 718, 724 (Tex. App.—Fort Worth 2005, no pet.) (“The burden of proof in

conservatorship cases, as opposed to termination cases, is a preponderance of

the evidence.”).

9 B. Appointment of Joint Managing Conservator

Family code section 153.131(a) provides that both parents shall be

appointed as joint managing conservators of a child unless the court finds that

appointment of the parents would not be in the best interest of the child because

the appointment would significantly impair the child’s physical health or emotional

development. Tex. Fam. Code Ann. § 153.131(a) (West 2014). A rebuttable

presumption exists that it is in a child’s best interest for his parents to be named

his joint managing conservators. Id. § 153.131(b) (West 2014). Father asserts

that the jury’s finding that he should not be appointed as joint managing

conservator implied that Mother rebutted the presumption that he should be

appointed as such. Father argues this finding is not supported by the evidence.

A finding of a history of family violence removes the presumption that

appointment of a child’s parent as joint managing conservator is in the child’s

best interest. Id. With regard to the appointment of managing conservator, the

jury was instructed in pertinent part as follows:

In determining whether to appoint a party sole or joint managing conservator, you shall consider evidence of the intentional use of abusive physical force by a party against his or her spouse, against a parent of the child, or against any person younger than eighteen years of age committed within a two-year period preceding the filing of the suit or during the pendency of the suit.

A person may not be appointed a joint managing conservator if that person has a history or pattern of past or present child neglect or of physical or sexual abuse directed against a parent, a spouse, or a child.

10 Mother testified that Father was physically abusive towards her both prior

to and during their marriage, but as to the events occurring prior to their

marriage, Mother did not specify when they occurred.3 Mother testified that

during an argument shortly after their wedding ceremony in Mexico in March

2011, Father pushed her and pushed at her stomach even though she was

pregnant with the Child. Mother further stated that Father never hit her during

her pregnancy, but he pushed her, pushed at her stomach, and threw things at

her. Shortly after Mother gave birth to the Child, Father bit Mother during an

argument over whether Father should take the Child to a birthday party. Mother

was holding the Child at the time, and Father attempted to pull the Child away

from her.4

Mother testified that in the eight months from the beginning of the marriage

until they separated and Mother filed for divorce, Father physically assaulted her

“too many [times] to even count.” Father left bruises and bite marks on Mother.

Mother’s friend, K.M., testified that while Mother and Father were married but

before they were separated, she observed bruises on Mother’s arm. After

Mother and Father separated, Mother told K.M. that Father had caused the

bruises. Mother never told K.M. that Father hit her. But prior to the separation,

3 Before they were married, Father pushed and shoved her, pushed her to the ground, raised his fist to her and said, “Don’t make me do something I will regret,” locked her in her bedroom, and pushed her out of his vehicle. 4 Mother’s two children from a previous marriage, who lived with Mother and Father after their marriage, witnessed this event, as well as other instances of Father physically abusing Mother after the marriage. 11 Mother told K.M. that she was scared of Father and talked about “some of the

physical abuse.” K.M. never saw Father become physically violent with Mother,

nor did she ever see or hear him threaten Mother.

Mother further testified that she fled the marital residence in January 2012

after an argument over the telephone with Father during which he threatened,

“I’m leaving work and this time I’m going to come home and show you what I

mean.” Mother interpreted this as a physical threat and left before Father got

home. Mother spent the night at her parents’ house. During the early morning

hours, Father began banging on the door and yelling. Mother cracked open the

door, and Father barged into the house. He pushed Mother, yelled, called her

names, and accused her of hijacking his son. Mother was afraid and asked

Father to leave, but he refused until she called 911.

Two days later, Mother returned to the marital residence because Father

promised to change his behavior and because she wanted to save their

marriage. Mother testified that Father’s behavior was erratic and controlling; he

dictated how Mother was to sit and how she was to hold his hand and would not

allow Mother to leave the residence alone. That night, Mother chose to sleep in

one of her older children’s rooms upstairs so she could be close to the Child.

Father woke Mother in the middle of the night, angry that she was not sleeping

with him in his bed and yelling at her that she was to be down in his room and “to

do what she was told.” When Mother refused, Father continued to yell at her and

pushed her. Mother was fearful and called the police. The police arrived and

12 waited with Mother while she packed some items before leaving the marital

residence for the last time.

Mother testified that Father never physically harmed her children when

they lived with Father. But she also testified that Father spanked her oldest child

so hard that it left a welt. Without elaboration, she stated that Father was very

rough with the Child.

Mother admitted that she married Father despite his abusive behavior.

She also admitted that she never called the police prior to their separation and

that she never brought charges against Father. Father denied that he ever hit or

pushed Mother and testified that Mother often instigated physical violence in the

home. According to Father, Mother pushed or charged him using the Child as a

buffer “dozens” of times.

“Jurors are the sole judges of the credibility of the witnesses and the

weight to give their testimony. They may choose to believe one witness and

disbelieve another.” City of Keller, 168 S.W.3d at 819 (footnote omitted). Here,

the jury could have believed Mother’s testimony regarding Father’s physical

abuse and disbelieved Father. There was more than a scintilla of evidence that

Father had a history or pattern of physical abuse directed against Mother.

Therefore, we hold that the evidence was legally sufficient to support the jury’s

finding that Father should not be appointed as joint managing conservator of the

Child.

13 C. Appointment of Possessory Conservator

Family code section 153.191 provides that a parent who is not appointed

as a sole or joint managing conservator shall be appointed as a possessory

conservator unless the court finds that the appointment is not in the best interest

of the child and that parental possession or access would endanger the physical

or emotional welfare of the child. Tex. Fam. Code Ann. § 153.191. Father

asserts that the jury’s finding that he should not be appointed as possessory

conservator implies that the jury found that such an appointment was not in the

Child’s best interest and that Father’s possession or access would endanger the

Child’s physical or emotional welfare. Father argues the evidence is legally

insufficient to support these findings.

The jury was instructed on possessory conservatorship as follows:

A parent may not be allowed access to a child if the parent has a history or pattern of committing family violence during the two years preceding the date of the filing of the suit or during the pendency of the suit unless awarding access to the child would not endanger the child’s physical health or emotional welfare and would be in the child’s best interest.

“Family violence” means an act by a member of a family against another member of the family that is intended to result in physical harm.

“Possessory conservator of a child” means the person or persons appointed to have possession of or access to the child at specified times and upon certain conditions. In addition to the rights and duties listed above that a parent named a conservator has at all times or during periods of possession of the child, subject to any limitations imposed by court order on those rights and duties, a

14 parent appointed possessory conservator has any other right or duty of a managing conservator expressly granted to that parent in the decree appointing that parent a possessory conservator.

If, in answer to Question 1, you have not named [Father] managing conservator of the child, then answer Question 5. Otherwise, do not answer Question 5.

QUESTION 5:

Should [Father] be named possessory conservator of the child?

A parent who is not appointed managing conservator shall be appointed possessory conservator unless the appointment is not in the best interest of the child and possession or access by the parent would endanger the physical or emotional welfare of the child. A parent who is not appointed managing or possessory conservator may be ordered to perform other parental duties, including paying child support. Therefore, answer the following question “Yes” unless you find from a preponderance of the evidence that appointment of [Father] is not in the best interest of the child and that possession or access by [Father] would endanger the physical or emotional welfare of the child.

Answer “Yes” or “No.”

The jury answered “no.”

Dr. Kelly Goodness, who was appointed by the trial court to evaluate

Father’s psychological condition, testified that in 1993, Father incurred a frontal

lobe brain injury that affects his behavior. The injury causes Father to act

impulsively, inhibits his memory capability and his ability to interpret people’s

body language and what they are saying, and prevents him from fully recognizing

his deficits and from “presenting favorably” to others, which likely affects his

ability to maintain steady employment. Dr. Goodness also stated that Father has

15 problems with impulse and anger control, which likely played a role in his criminal

history, which includes a revocation of probation for failing a drug test and

convictions for driving while intoxicated, resisting arrest, burglary of a habitation,

assault, possession of prohibited weapons, and interfering with an emergency

call. According to Dr. Goodness, Father’s deficit may affect his ability to parent

because he may have a lower frustration tolerance when the Child acts out or

cries, have trouble remembering what needs to be done, be quick to anger, use

bad language, and lack problem-solving abilities.

Dr. Goodness testified that Father’s brain deficit is not huge, but it must be

considered when developing a parenting plan. Both parents should participate in

the parenting of a child unless it is detrimental to the child, and Dr. Goodness

stated that she believed Father “needs the opportunity to parent his child. His

deficits are not significant enough that he should be prevented from doing that.”

Dr. Goodness testified that Father showed signs of recovery from his brain

injury but had not made a complete recovery; his condition probably will not

improve. Father’s mother does not accept that Father has any deficits. Father

also does not believe or recognize he has any deficits remaining from his brain

injury.

Dr. Goodness recommended that Father consult with a psychiatrist for

medication and see a counselor once or twice a month. While counseling would

not eradicate Father’s lack of insight, his difficulty recognizing social cues, or his

low-frustration tolerance, it might help him in recognizing and addressing these

16 issues. Dr. Goodness referred Father to a licensed professional counselor in her

office, but Father did not follow up on her recommendation. She had not seen

Father since she completed her evaluation and filed her report with the court, and

Father did not follow her suggestion that he make an appointment with her office

to review his test results.

Mother admitted that Father had bonded with and had a close relationship

with her two children from her previous marriage. Father helped with the day-to-

day care of the children and played with them. Mother testified that Father “did a

lot” for the children and that “she trusted [Father] to be heavily involved” in her

children’s lives, but she did not want him heavily involved in raising the Child.

Several Father’s Day and anniversary cards in which Mother expressed her love

and appreciation for Father were admitted into evidence. Mother stated that she

gave these cards to Father because she wanted their relationship to work.

Mother testified that over time, she became fearful of Father and became

more fearful of him after the marriage because Father’s behavior escalated. In

addition to being physically abusive, Father was emotionally abusive. For

example, during their altercation in Mexico, Father told Mother she could do what

she wanted with the baby and threatened to leave her there. After the marriage,

Father would call Mother names in front of her children and tell her children that

Mother was ungrateful, selfish, and a horrible “C word.”5

5 It is apparent from Mother’s testimony that Father used the actual term when referring to her.

17 Father had frequent emotional outbursts during which he would yell and

curse at the children and belittle Mother. During a disagreement over her

children’s safety while riding four-wheelers with Father, he told Mother to “do as

you’re told, get the F out, [and] I’ll do what I want.” Mother would call her parents

when she and Father argued, and Father told Mother on several occasions, “if

you’re going to call your dad, then I’m going to shoot him for trespassing. Tell

your dad I’m going to shoot your dad.” When Mother fled the marital residence,

Father told her she needed a shock collar like a dog.

Mother’s parents’ neighbor, E.H., was inside their house during some of

the custody exchanges. On at least two or three occasions, E.H. heard Father

tell Mother that if her father were there, Father would kill him.

J.S., who lives down the street from Mother’s parents, witnessed Father

arriving at Mother’s parents’ house to pick up the Child. Father came speeding

up the street and grabbed the Child (who was three months old at the time) from

Mother’s arms. The Child was screaming, and when Mother told Father that the

Child needed his pacifier, Father responded, “No, he doesn’t, bitch.” Mother did

not respond. Father put the Child into the baby seat in his car and, without taking

any time to buckle him in, slammed the car door and sped off.

Mother’s father, C.C., recounted two incidents in which Father threatened

him. C.C. was out on a walk around his neighborhood when he encountered

Father running in the opposition direction. Father turned around and began

walking beside C.C. C.C. felt scared. Father commented that C.C. did not have

18 his phone with him, called C.C. and Mother names, and told C.C., “If I ever—if

you ever stiff me again, I’m going to bash your head in.” C.C. started walking

towards a nearby school and told Father that he was going to call the police

when he got there. Father ran off.

C.C. also recounted an incident during which Father followed C.C. and

Mother’s mother while they were driving in their neighborhood. Afraid, C.C.

pulled into a golf course maintenance area where he knew other people would

be. As Father drove by, he rolled down his window and said to C.C., “What’s up,

asshole?” C.C. waited for about ten minutes before leaving the golf course to

return home. Father immediately started following the couple again.

Father recorded part of this incident, and the video was played to the jury.

The video begins as C.C. is turning out of the golf course maintenance area and

onto the street. It appears from the video that Father was waiting for C.C. to

leave. The video shows Father following C.C. very closely after C.C. left the golf

course. Father, in his narration on the video, claims the video is an example of

how C.C. follows him around town and harasses him. On cross-examination,

Father admitted that he drove by the golf course and called C.C. an asshole, and

he insisted that the video exemplified how C.C. followed him and harassed him.

Father testified that he loved Mother and her children so much that he sold

his interest in his family’s ranch—against his dying father’s wishes—to purchase

a home for them. Father confirmed that he helped in the day-to-day care of

19 Mother’s children and played with them. He also attended their sports practices

and games and parent-teacher conferences and PTA meetings with Mother.

Father admitted to the criminal history described by Dr. Goodness. Most

recently, Father received citations for operating a boat with two children under

the age of thirteen (his nieces) onboard who were not wearing life jackets. He

admitted to using illegal drugs as an adult, including marijuana,

methamphetamine, cocaine, and mushrooms. Father also recounted the events

leading up to his assault conviction. When Father and a friend were out driving

one day, they saw R.B.—a man who allegedly raped Father’s sister thirteen

years earlier but was not charged—outside of R.B.’s home. Father got out of his

car and assaulted R.B. Father admitted that he initiated contact with R.B. and

said that pent-up anger led to the assault.

Father also admitted that he engaged in behavior designed to alienate the

Child from Mother and her family by speaking negatively about Mother in front of

the Child. Two videos of custody exchanges were played for the jury. In the first,

when Mother handed the Child to Father, he remarked, “You have one of your

Mommy’s cold sores, it looks like.” As he walked to his car, Father asked the

Child, “Did Mommy give you herpes?” Father then yelled from the curb, “Is it

herpes, [Mother]? Do you know? Have you had it checked?” In the second, as

he took the Child to his car, he asked, “Are you going to . . . meet your new

20 Mommy?”6 and tells the Child, “Say goodbye to those people,” i.e., Mother and

Mother’s family.

While Father denied Mother’s accusations of physical and emotional

abuse, he admitted to having physical altercations with her in the past, as well as

during some of the custody exchanges. He denied that any of the physical

altercations involved him pushing Mother away or pulling the Child away from

Mother.

The jury viewed video recordings of some of the custody exchanges. In

one, Father was returning the Child to Mother. Mother reached for the Child

repeatedly, but Father kept backing away and pushed Mother away with his

elbow. The Child started to cry. Father denied that the video showed him

elbowing Mother away.

The next video also showed Father returning the Child to Mother. Mother

reached for the Child repeatedly, and Father pushed her away while asking

about the Child’s diaper rash. The Child started to cry. C.C. was also present.

After Father eventually handed the Child to Mother, Father advanced towards

C.C. and said, “[C.C.], go inside. Quit threatening me.” C.C. remained stationary

and said, “I’m not threatening you, [Father].” Father kept advancing towards C.C.

and said, “Quit threatening me. Please get out, please, please get out of my

face.” Father denied that the video showed him pushing Mother and acting

6 The Child’s “new mommy” was Father’s longtime girlfriend.

21 aggressively. Father testified that he thought his conduct was appropriate in both

videos.

Father’s mother testified that Father was “patient and kind and loving” with

the Child. During his periods of possession, Father was observant of the Child’s

needs, insisted that the Child eat healthy foods, and took care of the Child,

including changing his diapers. Father also played with the Child, took him

swimming and boating, and read to him. She testified that the Child had bonded

with Father, loved Father, followed Father around during visits, and wanted only

Father to hold him. She had no concerns about the way Father cared for the

Child, but she was concerned about Mother’s parenting skills because of her

volatile behavior.

Father’s mother testified that Father sought counseling after receiving Dr.

Goodness’s recommendation but did not know if he was still attending counseling

or for how long he did so. She confirmed that Father was not seeking medication

as Dr. Goodness recommended.

Because “best interest” and “endanger” were undefined in the charge, we

look to the terms’ commonly understood meanings in our sufficiency review. See

Osterberg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000); EMC Mortg. Corp. v. Jones,

252 S.W.3d 857, 869 (Tex. App.—Dallas 2008, no pet.). A common meaning of

“best” is “providing or offering the greatest advantage, utility, or satisfaction,” and

the common meaning of “interest” is “the state of being concerned or affected

esp. with respect to advantage or well-being.” Webster’s Third New International

22 Dictionary 208, 1178 (2002). “Endanger” is defined as “imperil or threaten

danger to.” Id. at 748.

Again, “[j]urors are the sole judges of the credibility of the witnesses and

the weight to give their testimony. They may choose to believe one witness and

disbelieve another.” City of Keller, 168 S.W.3d at 819 (footnote omitted). Father

loves, has bonded with, and wants to parent the Child, and Dr. Goodness

testified that Father should be allowed to parent the Child. But Dr. Goodness

also testified that Father did not recognize that he had a mental deficit, and the

evidence showed that Father was not following her recommendations regarding

counseling and medication. The evidence showed that Father had a volatile

personality, was quick to anger, lacked impulse control, and was unable or

unwilling to recognize that his behavior was physically aggressive, even when

confronted with video recordings of the incidents. Father had a criminal history,

including assault and operating a boat without ensuring that the children onboard

were wearing life vests, and had a history of physically and emotionally abusing

Mother, sometimes in front of the Child. Father admitted to engaging in specific

instances of behavior designed to alienate the Child from Mother and her family,

videos of which were played for the jury.

Applying the applicable standard of review, we conclude that there was

more than a scintilla of evidence to support the jury’s conclusion that

appointment of Father as possessory conservator was not in the best interest of

the Child and that access to or possession by Father would endanger the Child’s

23 physical or emotional welfare. Accordingly, we overrule the remainder of

Father’s first issue and his second issue.

IV. Father’s Access to and Possession of the Child

In his third issue, Father asserts that even if family code section 105.002(c)

prevented the trial court from contravening a jury verdict and regardless of

whether the jury appointed Father as possessory conservator, the trial court was

not prohibited from granting Father access to or possession of the Child. Section

105.002(c)(1) entitles a party to a jury verdict on the issue of appointment of a

possessory conservator, see Tex. Fam. Code Ann. § 105.002(c)(1)(C), but

section 105.002(c)(2)(B) prohibits a trial court from submitting a jury question on

the issue of a specific term or condition of possession of or access to a child, id.

§ 105.002(c)(2)(B). Father argues the trial court abused its discretion by denying

him access to or possession of the Child based upon the jury’s finding that

Father should not be appointed as possessory conservator, see id., thereby

imposing restrictions or limitations on his possession and access that exceed

what is required to protect the Child’s best interest, see id. § 153.193 (West

2014). Father further argues that a “complete denial of access should be rare,”

In re Walters, 39 S.W.3d 280, 287 (Tex. App.—Texarkana 2001, no pet.), and

reserved only for “the most extreme of circumstances,” In re E.N.C., No. 03-07-

00099-CV, 2009 WL 638188, at *15 (Tex. App.—Austin Mar. 13, 2009, no pet.)

(mem. op.).

24 A. Standard of Review

The best interest of the child shall always be the primary consideration of

the court in determining the issues of possession of and access to the child. Tex.

Fam. Code Ann. § 153.002 (West 2014). We review a trial court’s order

regarding possession and access for an abuse of discretion. See Green v.

Green, 850 S.W.2d 809, 811–12 (Tex. App.—El Paso 1993, no writ). A trial court

abuses its discretion if the court acts without reference to any guiding rules or

principles, that is, if the act is arbitrary or unreasonable. Low v. Henry, 221

S.W.3d 609, 614 (Tex. 2007); Cire v. Cummings, 134 S.W.3d 835, 838–39 (Tex.

2004). Under an abuse of discretion standard, challenges to the legal or factual

sufficiency of the evidence are not independent grounds of error; rather, they are

simply factors in assessing whether the trial court abused its discretion. Gardner

v. Gardner, 229 S.W.3d 747, 751 (Tex. App.—San Antonio 2007, no pet.).

In determining whether there has been an abuse of discretion because the

evidence is legally or factually insufficient to support the trial court’s decision, we

engage in a two-pronged inquiry: (1) Did the trial court have enough information

upon which to exercise its discretion; and (2) did the trial court err in applying its

discretion? W.M., 172 S.W.3d at 725; In re T.D.C., 91 S.W.3d 865, 872 (Tex.

App.—Fort Worth 2002, pet. denied). The traditional sufficiency review comes

into play with regard to the first question. W.M., 172 S.W.3d at 725; T.D.C., 91

S.W.3d at 872. With regard to the second question, we determine, based on the

25 elicited evidence, whether the trial court made a reasonable decision. W.M., 172

S.W.3d at 725; T.D.C., 91 S.W.3d at 872.

B. Analysis

The final decree stated that Father “shall not exercise, or attempt to

exercise, possession of or access to the [Child].” The trial court has wide latitude

to determine whether a parent should have possession of and access to a child,

and we should not disturb a reasonable decision made within its discretion. See

In re J.E.P., 49 S.W.3d 380, 386 (Tex. App.—Fort Worth 2000, no pet.). The

family code mandates that “the terms of an order that denies possession of a

child to a parent or imposes restrictions or limitations on a parent’s right to

possession of or access to a child may not exceed those that are required to

protect the best interest of the child.”7 Tex. Fam. Code Ann. § 153.193. While a

jury may determine conservatorship issues, the trial court has the discretion to

determine the specific terms and conditions of access and possession.8 See id.

7 Even though section 153.193 does not envision a complete denial of access, “a severe restriction or limitation, even one that amounts to a denial of access, is permissible if it is in the best interest of the child” because the best interest of the child is the primary consideration in determining issues of possession and access. In re Walters, 39 S.W.3d 280, 286 n.2 (Tex. App.— Texarkana 2001, no pet.) (citing Tex. Fam. Code Ann. § 153.002). 8 During oral argument, Mother argued that section 153.193 did not apply because the section is under a subchapter entitled “Parent Appointed as Possessory Conservator.” Thus, in order for the limitations in section 153.193 to apply, Father must have been appointed as possessory conservator. But the language of section 153.193 does not limit its application to parents appointed as possessory conservators. Compare Tex. Fam. Code Ann. § 153.193 (“The terms of an order that denies possession of a child to a parent or imposes restrictions 26 §§ 105.002(c)(2)(B); 153.193; cf. Walters, 39 S.W.3d at 290 (holding parent was

only entitled to a jury verdict on conservatorship).

Father contends the trial court abused its discretion because there was no

evidence to support the trial court’s decision to deny Father access to or

possession of the Child. He points out that orders completely denying a parent

access to a child when there are no extreme grounds to support the order are

frequently reversed and remanded for the trial court’s reconsideration and

determination of the appropriate amount and type of access and any necessary

conditions. See, e.g., Fish v. Lebrie, No. 03-09-00387-CV, 2010 WL 5019411, at

*8–11 (Tex. App.—Austin Dec. 10, 2010, no pet.) (mem. op.); E.N.C., 2009 WL

638188, at *15–18; Walters, 39 S.W.3d at 287. He urges us to do the same

here. The primary cases relied upon by Father, however, all concern parents

who were appointed as conservators. See Fish, 2010 WL 5019411, at *1 (stating

that father was joint managing conservator); E.N.C., 2009 WL 638188, at *14

(stating that mother was possessory conservator); Walters, 39 S.W.3d at 287

(“[T]he trial court appointed Deborah possessory conservator, which implies a

or limitations on a parent’s right to possession of or access to a child may not exceed those that are required to protect the best interest of the child.”) with id. § 153.192(a) (West 2014) (“Unless limited by court order, a parent appointed as possessory conservator of a child has the rights and duties provided by Subchapter B and any other right or duty expressly granted to the possessory conservator in the order.”) and id. § 153.192(b) (West 2014) (“In ordering the terms and conditions for possession of a child by a parent appointed possessory conservator, the court shall be guided by the guidelines in Subchapter E.”). The heading of a subchapter does not limit or expand the meaning of a statute. Tex. Gov’t Code Ann. § 311.024 (West 2013). 27 finding that any danger she poses to Christopher’s physical or emotional welfare

can be remedied by an order that restricts her access or possession.”). There is

a distinction between cases in which the trial court appoints a parent as a

conservator but denies the parent any possession of and access to the child and

a case such as this one in which the jury finds that the parent should not be

appointed as possessory conservator, implicitly finding that possession and

access would endanger the child’s physical or emotional welfare and are not in

his best interest.9

Here, the jury found that Father should not be appointed as possessory

conservator, and as we explained above, the evidence was legally sufficient to

support the jury’s implicit findings that appointment of Father as possessory

conservator was not in the Child’s best interest and that Father’s possession and

access would endanger the Child’s physical or emotional welfare. The trial court

9 Green is the only case we have found in which an appellate court affirmed the trial court’s complete denial of access in the context of a divorce. See 850 S.W.2d at 810–11, 813. Unlike the cases relied upon by Father, the father in Green was not appointed as conservator. Id. at 811. The appellate court concluded that the evidence was legally and factually sufficient to support the trial court’s finding that it was in the child’s best interest not to appoint the father as possessory conservator and not to give him access to or possession of the child. Id. at 812–13. But there are cases upholding the complete denial of access in the termination context when the parent’s rights have not been terminated. See, e.g., J.C. v. Tex. Dept. of Family & Protective Servs., No. 03- 12-00670-CV, 2013 WL 1405892, at *8 (Tex. App.—Austin Apr. 3, 2013, no pet.) (mem. op.) (holding that trial court did not abuse its discretion in denying father visitation and access to children “at this time”); In re W.H.M., No. 01-00-01396- CV, 2003 WL 22254713, at *9–10 (Tex. App.—Houston [1st Dist.] Oct. 2, 2003, pet. denied) (mem. op.) (upholding jury’s implied findings that allowing father any access to child would endanger the child’s physical or emotional welfare). 28 had discretion to determine the specific terms and conditions of access. See

Tex. Fam. Code Ann. § 153.193. In light of the jury’s implicit findings, we are

unable to conclude that the trial court abused its discretion by denying Father

possession of and access to the Child. See id. Accordingly, we are constrained

to overrule Father’s third issue.

V. De Facto Termination

In his fourth issue, Father alternatively argues that if section 105.002(c)

permitted the jury to deny access and possession as well as conservatorship,

then family code sections 105.002(c) and 153.191 operated in concert

unconstitutionally as applied to him because these sections allowed the jury to

effectuate a de facto termination of his parental rights under a preponderance of

the evidence standard. As we stated in our opinion granting Mother’s mandamus

petition, the burden of proof in a custody case differs from that in a termination

proceeding. See M.S., 2014 WL 1510059, at *2 (citing In re J.A.J., 243 S.W.3d

611, 616 (Tex. 2007) (contrasting the quantum of proof required to support

termination from that required to support a conservatorship decision); Tex. Fam.

Code Ann. § 105.005 (providing that findings must be based on a preponderance

of the evidence unless otherwise provided by title 5 of the family code); Tex.

Fam. Code Ann. § 161.001(b) (West Supp. 2015) (stating that evidence

supporting findings in termination proceedings must be clear and convincing)).

Father, even though he was not appointed conservator, can seek modification of

the conservatorship order, and the trial court has discretion to grant the

29 modification if it is in the child’s best interest and the parent’s or child’s

circumstances have materially and substantially changed since the order was

rendered. See id. (citing Tex. Fam. Code Ann. §§ 102.003(a)(1), 156.001–.002,

156.101 (West 2014 & Supp. 2015)). “It is this law that differentiates Father from

parents whose relationships with their children have been permanently severed,

and it is this law that provides Father and other similarly situated parents due

process.” Id. (citing J.A.J., 243 S.W.3d at 617 (rejecting parent’s argument that

requiring separate challenges to conservatorship decisions and termination

orders will result in the de facto termination of parental rights for parents who win

their termination appeals and noting that the family code “guards against that

possibility,” citing sections 102.003, 156.001, and 156.101 of the family code)).

Accordingly, we overrule Father’s final issue.

VI. Conclusion

Having overruled each of Father’s four issues, we affirm the trial court’s

judgment.

/s/ Anne Gardner ANNE GARDNER JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

GABRIEL, J. concurs without opinion.

DELIVERED: December 3, 2015