ACCEPTED 12-15-00149-CV TWELFTH COURT OF APPEALS TYLER, TEXAS 7/2/2015 11:02:11 AM CATHY LUSK CLERK
No. 12-15-00149-CV __________________________ FILED IN 12th COURT OF APPEALS TYLER, TEXAS In the Court of Appeals 7/2/2015 11:02:11 AM for the Twelfth District of Texas CATHY S. LUSK at Tyler Clerk ________________________________________
In Re
Charles Dwayne Lankford and Roberta Gresham,
Relators ________________________________________
Relators' Reply ________________________________________
ROBERT L. FLOURNOY ROBERT T. CAIN, JR. STATE BAR NO. 07173000 STATE BAR NO. 03607200 LAW OFFICES OF ROBERT ALDERMAN, JR. ROBERT L. FLOURNOY STATE BAR NO. 00979900 P. O. BOX 1546 ALDERMAN CAIN & NEILL PLLC LUFKIN, TEXAS 75902-15460 122 EAST LUFKIN AVENUE TELEPHONE: (936) 639-4466 LUFKIN, TEXAS 75901-2805 FACSIMILE: (936) 634-3190 TELEPHONE: (936) 632-2259 FACSIMILE: (936) 632-3316
Attorney for Relator Attorneys for Relator Charles Dwayne Roberta Gresham Lankford
ORAL ARGUMENT REQUESTED TABLE OF CONTENTS
TABLE OF CONTENTS ............................................................................ 1
INDEX OF AUTHORITIES ....................................................................... 3
ISSUES PRESENTED .............................................................................. 5
ARGUMENT AND AUTHORITIES ......................................................... 5
I. Update to the Procedural History of this Case ............................... 5
II. Stephanie asks the Court to decide this case based on documents that are not evidence ................................................ 6
A. Her pleading and affidavit are not evidence .......................... 6
B. The child’s interview in chambers is not evidence ................. 8
III. Many of Stephanie’s statements of “fact” are not supported by the record ................................................................... 9
IV. Stephanie does not address the importance of standing as protecting parents’ constitutional rights ................................... 13
V. Standing requires more than developing a “close relationship” with the child ................................................................................... 14
VI. “Care, custody and control” under the statute means something more than possession at the sufferance of the parent .................................................................................... 14
VII. The trial court should not have considered T.D.L.’s interview to determine standing ................................................... 18
-1- CONCLUSION ......................................................................................... 19
PRAYER … .............................................................................................. 20
SIGNATURE ....................................................................................... 20-21
CERTIFICATION OF REVIEW .............................................................. 21
CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4(I) .............................................................................. 22
CERTIFICATE OF SERVICE ................................................................. 23
AFFIDAVIT OF ROBERT L. FLOURNOY ............................................ 24
INDEX TO SECOND SUPPLEMENTAL RECORD
SECOND SUPPLEMENTAL RECORD
-2- INDEX OF AUTHORITIES
CASES:
In re Contractor's Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374 (Tex. App.—Tyler Aug. 17, 2009) (orig. proceeding) ............................................................................... 7
Crawford v. Washington, 541 U.S. 61-62 (2004) ...................................... 9
In re C.T.H.S., 311 S.W.3d 204 (Tex. App.—Beaumont 2009, pet. denied)……………………………………………………….13
In re K.K.C., 292 S.W.3d 788 (Tex. App.—Beaumont 2009) ............ 15, 16
In re K.K.T., No. 07-11-00306-CV, 2012 WL 3553006 (Tex. App. – Amarillo Aug 17, 2012, no pet.) (mem. op.) ....... 15, 16
Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer, 904 S.W.2d 656, 660 (Tex. 1995) ...................................................... 7
In re M.K.S.-V., 301 S.W.3d 460 (Tex. App.—Dallas 2010) ................................................................ 16
In re M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008, no pet.) .................................................................................. 16
Nat’l Med. Fin. Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 905 (Tex. App.—Dallas 2004, no pet). .................. 7
Nichol v. Nichol, No. 07-12-00035-CV, 2014 WL 199652 (Tex. App.—Amarillo Jan. 15, 2014, no pet.) ................................... 9
In re N.I.V.S., 2015 WL 1120913 (Tex. App.— San Antonio March 11, 2015) (mem. op.) ...................................... 16
In re Russell, 321 S.W.3d 846 (Tex. App.—Fort Worth 2010, orig. proceeding) ........................... 13
-3- State for Best Interest of S.E., No. 12-14-00246-CV, 2014 WL 6977816 (Tex. App.—Tyler Dec. 10, 2014, no pet.) .................. 7
RULES AND STATUTES:
TEX. FAM. CODE (Vernon 2014)
§ 102.003(a)(9) .................................................................................. 5
§ 153.009 ....................................................................................... 5, 8
§ 153.009(b) ...................................................................................... 18
§ 153.131(a) ..................................................................................... 13
TEX. R. EVID.
801(d) ............................................................................................. 7, 8
802 ................................................................................................... 7
-4- ISSUE PRESENTED
Respondent abused his discretion when he ruled that the child’s
step-mother has standing to commence a suit affecting the parent-child
relationship under Section 102.003(a)(9) of the Family Code, which
would require her to have had “actual care, custody, and control over
the child for at least six months . . . .”
ARGUMENT AND AUTHORITIES
Stephanie’s response to the petition for mandamus distorts the
record and fails to engage the substantive arguments made by Relators.
I. Update to the Procedural History of this Case.
At Stephanie’s request (R233), the trial court interviewed T.D.L.
in chambers, as authorized by Section 153.009 of the Family Code.1
After this Court directed her to respond to the mandamus petition in
this proceeding, Stephanie asked the trial court to unseal the interview
and allow it to be transcribed so that it could be presented to this Court.
2d Supp. R. at 1. Relators objected, pointing out that the interview had
nothing to do with the standing question, the child was not under oath,
and the parties were not given the opportunity to cross-examine her. Id.
1 TEX. FAM. CODE ANN. § 153.009 (Vernon 2014).
-5- at 3. At a hearing on the motion held on June 24, 2015, the trial court
granted Stephanie’s motion (Id. at 6) and announced that “lots of
responses [in the interview] did assist me in forming my opinion to
allow step-mother to have standing . . . . ” Id. at 14.
Therefore, Stephanie attached a transcript of the interview to her
response to the petition; we have attached copies of the relevant
motions and a transcript of the hearing where the trial court announced
his ruling. References to the transcript of the interview will be cited as
“1st Supp. R.,” and references to the documents attached to this reply
will be cited, “2d Supp. R.”
II. Stephanie asks the Court to decide this case based on documents that are not evidence.
Before we address the substance of Stephanie’s argument, we
must first object to her citations to documents that are not evidence.
A. Her pleading and affidavit are not evidence.
At least fifteen times she offers to prove an asserted fact by citing
to her own pleading and affidavit, which are at pages 26-31 of the
record attached to our Petition. Those citations may be seen in
Stephanie’s Response at 3-6, 8-9, 11-12. It should be no surprise that
-6- Stephanie’s statements in these documents are self-serving and
conclusory.
There are three problems with Stephanie’s reliance on her
pleading and affidavit. First, neither was admitted into evidence, and
documents not admitted into evidence cannot be considered as proof. In
re Contractor's Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374,
at *5 (Tex. App.—Tyler Aug. 17, 2009) (orig. proceeding); Nat’l Med.
Fin. Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 905 (Tex.
App.—Dallas 2004, no pet.).
Second, pleadings are generally not competent evidence, even if
they are sworn or verified. Laidlaw Waste Sys. (Dallas), Inc. v. City of
Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); State for Best Interest of S.E.,
No. 12-14-00246-CV, 2014 WL 6977816, at *2 (Tex. App.—Tyler Dec.
10, 2014, no pet.).
Third, even if the affidavit had been offered as evidence, it would
have been inadmissible hearsay – an out-of-court statement “offered . . .
to prove the truth of the matter asserted.” TEX. R. EVID. 801(d), 802.
-7- Neither the pleading nor the affidavit should have been
considered as evidence by the trial court, and this Court should not rely
upon them, either.
B. The child’s interview in chambers is not evidence.
Stephanie also repeatedly cites as evidence statements made by
T.D.L. in an in-chambers interview, which the trial court conducted
outside of the presence of the parties and their counsel. 1 Supp. R at 4.
This interview, requested by Stephanie (R233), was appropriate for
determining the child’s wishes as to conservatorship. TEX. FAM. CODE
ANN. § 153.009 (Vernon 2014).
But the very nature of an in-camera interview makes it
inappropriate for evidence on a contested issue such as standing. It is
no surprise that Judge Register was very kind to the child and
questioned her gently. He should not have done otherwise in that
circumstance.
But when it comes to the standing question, the child’s statements
at the interview were inadmissible hearsay, since those statements
were not made “while testifying at the trial or hearing.” TEX. R. EVID.
801(d).
-8- The child was not under oath or admonishment to tell the truth,
and her statements were inadmissible for that reason. Nichol v. Nichol,
No. 07-12-00035-CV, 2014 WL 199652, at *2 (Tex. App.—Amarillo Jan.
15, 2014, no pet.)
Counsel did not have the opportunity to pose questions to her in
order to draw out explanations or additional information. Cross-
examination, however gentle it may be, is the best means our judicial
system offers for determining truth. See Crawford v. Washington, 541
U.S. 61-62 (2004).
Until the June 24 hearing, Relators did not know that the trial
court based his ruling, in part, on the child’s in-camera statements;
therefore, they were never given the opportunity to object ahead of time.
III. Many of Stephanie’s statements of “fact” are not supported by the record.
Some things Stephanie says in her brief are simply not true. For
example, on page 12, Stephanie claims that Roberta, the grandmother,
was “unable to respond correctly” when asked about T.D.L.’s age. In
-9- fact, Roberta correctly answered that the child was twelve years old
(R203), almost thirteen (R204).2
In the very next sentence, Stephanie claims that in her interview,
T.D.L. told the judge that the home where Charles, T.D.L., and
Stephanie had lived belonged to Stephanie, citing 1st Supp. R. 6:22-23.
In fact, T.D.L. said nothing of the kind. (And if she had said that, how
would a twelve-year-old have known whether it were so?)
Then Stephanie says that she enrolled T.D.L. in school. That is
not so, and Stephanie admitted as much on the stand: “Ms. Gresham
took her to enroll.” R193. According to the uncontradicted evidence,
Charles signed papers in 2011 to authorize T.D.L. to transfer from
Hudson I.S.D. to Diboll. Resp. Exh. 1, 2 (R268-89). Charles also made
the decision to transfer her back to Hudson in 2013. R121-22. Stephanie
did not have authority to sign the necessary papers, so she asked
Roberta to sign the authorization for that transfer. R196, 278.
2 The exact exchange at R203 was as follows: “Q: This is a - - how old is she now? A: How old is she? Q: Yes. A: She’s 12 now. She’ll be twelve the 21st of March. Q: Okay. She’s almost a 13-year old child. . . . .” R203, ll. 9-14. The second part of her sentence was either a slip of the tongue, understood as such by all, or an error in transcription. On the next page, Roberta testified, “I imagine she dresses herself. She’s 13 almost.” R204, l. 24. Stephanie’s brief confirms that T.D.L. was born March 2, 2002. Resp. at 2.
-10- But, Stephanie says, only she and her family were on the school
pickup list! And that, she says, shows the “apathy and inattentiveness”
of Charles and Roberta. Resp. at 17. This is not true at any level.
Roberta is listed on the first page of the form as a “guardian.” Pet. Exh.
1 (R275). The other contacts listed on the next page may “also” pick up
the child. R276. And nothing on this form can be taken as showing
anyone’s “apathy or indifference:” Stephanie admits that she herself
filled out the form on October 14, less than a month before she filed for
divorce. R192. The document speaks for Stephanie’s attitude and no one
else’s. She did not bother to list her husband, the child’s father, at all.
Stephanie’s form contrasts with the one Roberta filed the previous
year. R277-84. The earlier form lists Roberta as guardian and Charles
as father. R278. Stephanie is shown as “step-mom” on the pick-up list,
along with Stephanie’s mother. R279. Stephanie says that she filled out
that form, too. R193. But she needed it signed by Roberta, so she put
Roberta and Charles’s names on it.
With no citation to the record, she asserts that Charles “was
willing to give Stephanie all legal right to make decisions for the child.”
Resp. at 23. As Stephanie admitted under oath, Charles never signed
-11- any papers giving Stephanie any rights over T.D.L. R. 163-64. Charles
had once signed a power of attorney giving Roberta rights to make
decisions over T.D.L., but he never did that for Stephanie. R122-23, 131.
(He did give Stephanie, Roberta, and another woman medical
authorizations for T.D.L.’s treatment in his absence. R123, 134, 265.)
Stephanie claims that Roberta “relinquished care, control and
possession of T.D.L. to Charles and Stephanie.” Resp. at 8. She cites
only her own affidavit (i.e., no evidence) to support this allegation.
Roberta testified that she gave rights only to her son, in custody orders.
R196-97.
Stephanie also complains that Charles and Roberta did not attend
T.D.L.’s games. Resp. at 19-20. Charles, of course, timed his visits home
for when T.D.L. was not in school so that he could spend more time with
her. R159. Naturally, there were no games or extracurricular activities
during those times, but surely it was more important that he spend one-
on-one time with his daughter.
Roberta’s hours of work kept her away from the games: she
worked until 10:00 in the evening. R202. Now that Roberta is not
working, “I would not be given a schedule of her games, and I was told
-12- not to the [sic] come.” R202. Evidently Stephanie wanted to make sure
that she “and her family are T.D.L.’s biggest fans.” Resp. at 19.
IV. Stephanie does not address the importance of standing as protecting parents’ constitutional rights.
In an original suit affecting the parent-child relationship, the
Family Code includes a “parental presumption” that entitles the parent
to be appointed sole managing conservator (or joint managing
conservator with the other parent) unless the court finds such
appointment “would significantly impair the child’s physical health or
emotional development . . . .” TEX. FAM CODE ANN. § 153.131(a) (Vernon
2014). That presumption does not exist in modification proceedings such
as this one. See Pet. for Mand. at 12-13.
Thus, the concept of standing is the only legal doctrine that acts to
protect parents’ constitutional rights to supervise the rearing of their
children. It is their recognition of his that has led the Fort Worth and
Beaumont courts to insist on a bright-line test for standing. In re
Russell, 321 S.W.3d 846, 856 (Tex. App.—Fort Worth 2010, orig.
proceeding); In re C.T.H.S., 311 S.W.3d 204, 208 (Tex. App.—Beaumont
2009, pet. denied).
-13- Stephanie’s response does not address this issue. This is not
surprising, since it cannot help her if the Court considers Charles’s
liberty interest in rearing his own daughter.
V. Standing requires more than developing a “close relationship” with the child.
Instead, Stephanie repeats the refrain that she has “developed
and maintained a relationship with [the] child over time.” See Resp. at
11; see also id. at 12,14, 25. That cannot be a sufficient test. A good
teacher or a coach develops close relationships with the children under
his or her care; that does not give them standing in suits affecting the
parent-child relationship.
VI. “Care, custody, and control” under the statute means something more than possession at the sufferance of the parent.
Even if the Court is unwilling to adopt the rigorous, bright-line
rule of the Beaumont and Fort Worth courts, Stephanie has not shown
standing. She had physical possession of T.D.L., but standing requires
something more. Stephanie’s possession depended on Charles’s will, and
what she did with T.D.L. depended on what he said.
Charles was heavily involved in the child’s life, calling home four
to five times a day, by Stephanie’s count. R167. He made the decisions
-14- about where T.D.L. lives, where she goes to school, and who are her
medical providers. R133-34. He made decisions about her discipline.
R120, 150.
Charles did sign medical authorizations with T.D.L.’s pediatrician
that allowed Stephanie to secure medical treatment for the child in his
absence. R123, 164. But one of those authorizations also gave
permission to Roberta and to Lisa LeBlanch, who was a friend of
Roberta’s who sometime babysat T.D.L. Mov. Exh. 4 (R265), R125.
T.D.L. did not require hospitalization or surgery while Charles was
away. R165.
The facts of this case are similar to those in In re K.K.T., No. 07–
11–00306–CV, 2012 WL 3553006, at *4 (Tex. App.—Amarillo Aug. 17,
2012, no pet.) (mem. op.). The court noted that “[t]he undisputed
evidence shows that the father’s temporary incarceration played a
heavy role in the arrangements for the children’s care during the time
in question, and shows that maintenance of those arrangements hinged
on the mother’s will.” Id. at *3 (emphasis supplied). The grandfather’s
care did not “demonstrate the exercise of authority to guide and manage
the children, beyond the control that is implicit in the possession and
-15- care of three-and five-year-old children.” Id., citing In re K.K.C., 292
S.W.3d 788, 792 (Tex. App.—Beaumont 2009). T.D.L. was a little older,
but Stephanie has shown nothing more than the control implicit in
possession of a child T.D.L.’s age.
Some courts – not Fort Worth or Beaumont – employ a looser test
for standing when they face custody-sharing arrangements, as in In re
M.K.S.–V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied),
and In re M.P.B., 257 S.W.3d 804, 809 (Tex. App.—Dallas 2008, no pet.).
Even courts that cite a more relaxed rule of standing (compared to
Fort Worth and Beaumont) are more careful when the non-parent has
been living with the parent. One example of this is In re K.K.T. Another
is In re N.I.V.S., No. 04–14–00108–CV, 2015 WL 1120913 at *5 (Tex.
App.—San Antonio Mar. 11, 2015, no pet. h.). In that case, the court
acknowledged that the non-parent was heavily involved in children’s
lives. Nonetheless, the children’s mother “was at all times in control of
decisions regarding the children’s welfare, including their health care
and education,” and the former live-in lacked standing. 2015 WL
1120913 at *5.
-16- Different rules, or at least different levels of scrutiny, are
appropriate for the two types of cases. When the parent has already
agreed that another person in a separate household may share custody
of the child, it is more reasonable to conclude that there has been some
relinquishment of control. When the parent and non-parent share the
same household, courts should be more reluctant to find a
relinquishment of control or abdication of responsibility. When the non-
parent makes breakfast for the child or drives her to school, it can never
be clear that she is acting on her own, contrary to the parent’s will.
People can share household responsibilities without giving up rights to
their children.
Charles Lankford is away from home longer than he would like.
The nature of his work required it, and that work was undertaken with
Stephanie’s approval (R157-58), and it benefited Stephanie and her son,
as well as T.D.L. (R158-59). The money Charles earned even allowed
Stephanie not to work outside the home. See Pet. at 7 n. 2. But many a
parent is away longer than he or she would wish, whether it is a doctor
or lawyer, who must spend long hours at the hospital or in the office, an
-17- offshore oil worker, or a salesman or businessman who must live most
of his life out of his suitcase.
Are these parents at risk of losing possession of their children to
their second spouses? And if so, would they face the same risk from a
nanny, housekeeper, or au pair? They, too, “develop a close relationship
with the child over time.” If Stephanie has standing, why wouldn’t a
nanny?
VII. The trial court should not have considered T.D.L.’s interview to determine standing.
There is no question that the trial court considered the child’s
interview statements in determining whether Stephanie had standing:
• “[T]here [were] lots of responses [in the interview] did assist me in
forming my opinion to allow step-mother to have standing . . . .” 2d
Supp. R. at 14.
• “And I think her points made in her interview were very
important in the decision making by the court.” Id. at 15.
• “[Y]ou will see in the record from the youngster that there are
relevant facts therein to make a decision on standing.” Id. at 14.
While Section 153.009(b) allows the court to consider the interview to
“determine the child’s wishes as to . . . any other issue in the suit
-18- affecting the parent-child relationship,” that is limited to determining
the child’s wishes, not a legal question such as standing. If her
testimony were to be considered for such purposes, it would have to
conform to the rules of evidence, i.e., under oath, in court (as opposed to
hearsay), and with the opportunity for counsel to pose questions and
cross-examine her.
Not only did he rely upon incompetent evidence directly, the trial
court allowed it to color his weighing of the testimony of actual
witnesses. 2d Supp. R. at 13-14. Specifically, the child’s interview
encouraged him to give undue weight to Stephanie’s physical presence
in the home, to disregard Charles’s direction and guidance of Stephanie
and the child over the telephone, and even to forget that Charles called
Stephanie three to five times a day. R120, 138, 159, 167.
The issue at the hearing was standing, not custody, and the trial
court abused his discretion when he considered T.D.L.’s statements.
CONCLUSION
Stephanie Smith advocates a very lax standard for standing that
would make parents’ custody of their children vulnerable to claims by
stepparents and others who may be living with the parent and child.
-19- Charles Lankford, remains deeply involved in his daughter’s life.
Charles has not relinquished his parental control, and the Court should
grant this petition to protect his right to rear his daughter.
PRAYER
For the reasons stated, and for those stated in their original Petition for
Mandamus, Charles Dwayne Lankford and Roberta Gresham, Relators,
pray that the Court issue a writ of mandamus directing the trial court
to (1) vacate its order of May 12, 2015, overruling their pleas to the
jurisdiction, (2) vacate its temporary orders dated May 12, 2015, and (3)
dismiss Stephanie Smith’s motion to modify for want of jurisdiction.
Relators also request such other and further relief as may be just.
Respectfully submitted,
ALDERMAN CAIN & NEILL PLLC 122 East Lufkin Avenue Lufkin, Texas 75901-2805 Telephone: (936) 632-2259 Facsimile: (936) 632-3316 By: /s/ Robert T. Cain, Jr. Robert T. Cain, Jr. State Bar No. 03607200 rcain@aldermancainlaw.com Robert Alderman, Jr. State Bar No. 00979900 balderman@aldermancainlaw.com
-20- Attorneys for Relator Charles Dwayne Lankford
Robert L. Flournoy State Bar No. 07173000 bob@rlflournoylaw.com LAW OFFICE OF ROBERT L. FLOURNOY P.O. Box 1546 Lufkin, Texas 75901 Telephone: (936) 639-4466 Facsimile: (936) 634-3190
Attorney for Relator Roberta Gresham
CERTIFICATION OF REVIEW
Pursuant to Texas Rule of Appellate Procedure 52.3(j), the undersigned counsel for Relator certifies that he has reviewed this Reply and concluded that every factual statement in the Reply is supported by competent evidence included in the Appendix or Record.
/s/ Robert T. Cain, Jr. Robert T. Cain, Jr.
-21- CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4(i)
This brief was prepared in Century Schoolbook 14 pt. typeface (12 pt. for footnotes) using Word for Mac 2011, and, in reliance on the word count of the computer program used to prepare the document, I certify that this petition contains 2,954 words, excluding those matters excluded by Texas Rule of Appellate Procedure 9.4(i)(1).
-22- CERTIFICATE OF SERVICE
I certify that the foregoing reply was electronically filed with the
Clerk of the Court using the electronic case filing system of the Court. I
also certify that a true and correct copy of the foregoing was served via
e-service or email on the following counsel of record:
· Mr. Thomas W. Deaton tommydeaton@lufkinlaw.com Ms. Carolyn Carter Bell cbell@lufkinlaw.com DEATON LAW FIRM 103 East Denman Avenue Lufkin, Texas 75901
Counsel for Real Party in Interest Stephanie Smith
and
· The Hon. Joe Lee Register P. O. Box 190 Lufkin, Texas 75901 lberry@angelinacounty.net
Respondent
on July 2, 2015.
-23- AFFIDAVIT OF ROBERT L. FLOURNOY
STATE OF TEXAS § § COUNTY OF ANGELINA §
BEFORE ME, the undersigned authority, on this day personally
appeared Robert L. Flournoy, who being by me first duly sworn, stated
on his oath the following:
"My name is Robert L. Flournoy. I am over twenty-one years of age, am of sound mind, and competent to make this affidavit. Unless otherwise stated, all facts set for in this Affidavit are .• true and based on my personal knowledge.
"I am the attorney for one of the Relators in the case below, and have been such ever since the case below was filed. The following documents attached hereto are true and correct copies of the originals filed in the case below:
1. Motion to Unseal Court Record.
2. Opposition to Motion to Unseal.
3. Order on Motion to Unseal
"Also attached is a true copy of a transcript of a hearing held in the case below on June 24, 2015.
"Said documents are material to Relators' claim for relief in this proceeding and are included in the record in support of Relators' Petition for Writ of Mandamus."
24 Further Affiant saith naught.
Robert L. Flournoy
SUBSCRIBED AND SWORN TO before me, the undersigned authority, on this the v'o day of June, 2015, to certify which witness my hand and seal of office.
{;J!J[!:,;_'?t GERALDINE WILLIAMS Notary Public - State of Texas \J.�..;J,. MY COMMISSION EXPIRES --��;,·,i>;,J.�---- November 28, 2018
25 INDEX TO SECOND SUPPLEMENTAL RECORD.
Title Record Page No.
Motion to Unseal Court Record 1
Opposition to Motion to Unseal 3
Order on Motion to Unseal Court Record 6 Transcript of Hearing on Motion to Unseal Court Record held on June 24, 2015 7 SECOND SUPPLEMENTAL RECORD DEATON LAW FIRM 936 P.002/004
§ § § § §
a
matter.
001 09: DEATON LAW FIRM P. 003/004
a true or
002 THE OF § §
§ §
THE
003 state
no reason to
to
not it a
004 005 NO. DVwJS,254-02-11
IN THE INTEREST OF § IN COUNTY COURT AT LAW § T.D.L. § NUMBERONE § A CHILD § ANGELINACOUNTY,TEXAS
MOTION TO UNSEALCOURT RECORD ORDER O:N"
OnJune23, 2015,the CourtconsideredStephanieSmith's Motionto UnsealCourtRecord
ofT.D.L, a minor, and ORDERS: that the Motionto UnsealCourt Recordis GRANTED
pursuantto TexasFamily Code §153.009(±).
IT IS ORDEREDthat the Clerk of the Courtshallunsealthe transcriptof the Court's
interviewwith the child the subjectof this suit conductedon or aboutMarch 6, 2015. IT IS
FURTHERORDEREDthat the Court Reportershall transcribethe interview in that it is a part of
the recordin this matter.
SIGNED on -~------2-~........._2-_()_/.S_.
~~
006 1
1 REPORTERS RECORD VOLUME 1 OF 1 VOLUMES 2
4 TRIAL COURT CAUSE NO. DV-35254-02-11
6 IN THE INTEREST OF: ) IN THE COUNTY COURT
7 MIKEL DWAYNE LANKFORD ) AT LAW NUMBER ONE
8 AND TORRANCE DEANN )
9 LANKFORD, CHILDREN ) ANGELINA COUNTY, TEXAS
11 _____________________________________________________
12 MOTION HEARING
13 _____________________________________________________
15 On the 24th day of June, the following proceedings came on to be heard in the above-styled and 16 numbered cause in County Court at Law No. 1 before the Honorable Joe Lee Register, Judge Presiding, held in Angelina 17 County, Texas.
18 Proceedings reported by computerized stenotype machine. 19
22 Wendy Wilkerson Official Court Reporter 23 County Court at Law No. 1
007 2
1 A P P E A R A N C E S
3 REPRESENTING PETITIONER MR. LANKFORD:
4 MR. ROBERT ALDERMAN, JR. Attorney at Law 5 Alderman & Cain 122 E Lufkin Ave. 6 Lufkin, Texas 75901 (936) 632-2259 7
8 REPRESENTING RESPONDENT:
9 MR. ROBERT L. FLOURNOY Attorney at Law 10 P.O. Box 1546 Lufkin, Texas 75901 11 (936) 639-4466
13 REPRESENTING PETITIONER MS. SMITH:
14 MR. TOMMY DEATON Attorney at Law 15 P.O. Box 1964 Lufkin, Texas 75902 16 (936) 637-7778
008 3
1 P R O C E E D I N G S
2 June 24, 2015
4 THE COURT: Gentleman, it's come to my attention
5 Mr. Deaton filed a motion with the Court requesting that he be
6 able to secure a copy of the record of the testimony or
7 statements given by the minor child in this matter, T.D.L. in
8 my chambers, and one of the purposes of having that record
9 unsealed and for him to be able to secure a copy of it.
10 I received that request, or motion, and I
11 contacted Mr. Alderman and said I will not do that until such
12 time I've given everybody an opportunity to visit the law on
13 the issue and also to have your say on the matter.
14 Mr. Flournoy, you have the same course right as
15 both those two guys.
16 MR. FLOURNOY: And I've seen the motion and
17 response and I concur with all that.
18 THE COURT: All right. Okay. Are you, I assume
19 that, but you're opposing the unsealing?
20 MR. FLOURNOY: I am, Your Honor. I think it's
21 immaterial.
22 THE COURT: Well, I did take it on myself to do
23 a little research on this matter, and Mr. Flournoy, I will
24 email to your office a paper written by one of the familiar
25 faces in the family law bar in dealing with trends and
009 4
1 appellate cases involving especially standing, it's a
2 well-written paper and I will commend your reading to that once
3 I get your email address and send it both to Mr. Alderman and
4 Mr. Deaton on the matter.
5 Mr. Deaton, you've made a request for the record
6 to be sealed, I mean what is your position on the request?
7 MR. DEATON: Well, our position is, Judge, under
8 Section 153 point, what is that, 009 that we're entitled to
9 have a record supplemented to include the interview with the
10 minor child. And I might, if I remember correctly with judge
11 the interview was transcribed only because Mr. Alderman
12 requested it be transcribed. And so I think we're entitled to
13 have the record supplemented and go up with the, on the writ of
14 mandamus proceeding so the court can at least review it to see
15 if it has any application. And I don't think, I think it's
16 pretty much standard procedure,
17 Judge, so we're requesting it be transcribed in
18 compliance with our motion and order Mr. Powers to transcribe
19 and supplement the record with it.
20 THE COURT: Mr. Alderman.
21 MR. ALDERMAN: Yes, sir, brief response. And I
22 believe --
23 THE COURT: I read your motion of opposition to
24 the same.
25 MR. ALDERMAN: Well, my comments are going to be
010 5
1 consistent with that response, Your Honor. I acknowledge that
2 for purposes of Chapter 153 that the interview is should be
3 part of the record for purposes of Chapter 153 issues
4 considering the interview was requested by opposing counsel
5 when the interview was conducted I did request on behalf of my
6 clients it at least be transcribed and I believe it was the
7 Court's own motion sealed it at the time and for whatever
8 period it was going to remain sealed never really addressed for
9 purposes of 153 certainly the statute says it's entitled to be
10 made part of the record. The basics of our motion to oppose is
11 this that 153 deals with conservatorship it does not deal with
12 standing. One or two deals with standing. The mandamus that
13 is before the Court, the mandamus that is part of this court
14 proceeding and is pending before the appellate court deals only
15 with Chapter one or two. I don't believe that a record of that
16 interview would be proper testimony for that. And on that
17 basis is why I am requesting that it not be unsealed at this
18 time simply because what we have pending before the court is
19 only on one or two.
20 I understand there are a couple of cases that
21 deal with the automatic right to have the record transcribed.
22 I reviewed all of those cases. All of those cases deal with
23 153 issues none of those cases deal with standing issues.
24 That's our standing, Your Honor.
25 THE COURT: Mr. Flournoy.
011 6
1 MR. FLOURNOY: Mine is same. No use repeating
2 it.
3 THE COURT: Mr. Deaton, response.
4 MR. DEATON: Yes, just briefly, Judge. You
5 know, I think that is within the purview of the title of Court
6 to determine if the interview of the child has any application
7 to this and remember the questions that we're talking about are
8 care, custody and control of this child. To the extent that
9 the interview bears on that I think the court ought to have
10 access to it so they can make an informed decision to say it's
11 not Mr. Alderman does not know, he doesn't know and
12 Mr. Flournoy doesn't know and I don't know at this point but I
13 would like to have the court have access, they make a
14 determination if they determine it's not applicable then I'm
15 sure they won't consider it but I think they're entitled to
16 have it.
17 MR. ALDERMAN: If I might, Your Honor, the
18 motion to confer that was presented by opposing counsel
19 specifically dealt with conservatorship issues, did not deal
20 with the standing issue, there was no reason at the time in our
21 clients' mind and Mr. Flournoy's clients to believe that
22 anything dealing with the conference was going to be dealing
23 with standing issues. We certainly had no right or opportunity
24 to address whatever that testimony may have been nor had we had
25 any reason to believe that whatever that testimony may have
012 7
1 been and I say testimony, it was comments I don't know it was
2 sworn testimony or not it was in front of us and we didn't have
3 any opportunity to address it but there was still no reason to
4 believe it was going to be part of the court's consideration of
5 the standing issues. Those items have also been addressed in
6 this opposition I'm simply reiterating those. Thank you, Your
7 Honor.
8 THE COURT: First of all, neither three of you
9 have the benefit of knowing what the young lady stated. Or I
10 have made some comments I think to some of you as to dislikes
11 that youngster had. In this matter it's hard for me as a judge
12 to interview a child in chambers and to block my ears on the
13 part of things the child relates to me but at the same time
14 when I interview the child and in this case the crux of the
15 case, that is the main point and argument is standing. I would
16 say probably half of the comments that the young lady made to
17 me dealt with questions that I propounded to her relating to
18 who's been the caretaker which probably goes to the heart of
19 the issue that both of you find yourselves and tied up in court
20 of appeals now.
21 I did rely heavily on the comments of the child
22 as to sorting out which one of the witnesses that you produced
23 in court was basically telling one side of the story and the
24 other one telling another side of the story. This young lady
25 made it very clear who was the responsible adult for her care
013 8
1 for not one year but a number of years. Save and except a
2 period of time her father was in the United States for the
3 period of 35 days each year she did relate to me that the
4 grandmother had probably been in the picture only on a few
5 occasions in the last couple of years.
6 In looking at it and I have actually asked many
7 colleagues as to the thoughts and I have had an opportunity to
8 view all the cases involved it's kind of hard when you're
9 having a custody issue and there's standing is an issue that
10 you don't look at the care, custody and control of the child.
11 Sometimes judges say I'm going to go with the status quo on
12 temporary orders because that's what's been going on. But in
13 the case involving this young lady there was lots of responses
14 that did assist me in forming my opinion to allow step-
15 mother to have standing because I wanted to make sure who this
16 young lady believed to be her caretaker, which I think is
17 extremely important in this case.
18 In viewing, and Mr. Alderman, to the difference
19 in one or two, Section one or two and 153 of the Family Code I
20 think you probably can't take one without the other but at the
21 same time does what the young lady spoke about have anything to
22 do with standing. And I think you're going to find once you
23 review the record that you're going to find that was a high
24 part of it and her statements were on point on those issues.
25 So, I can't say that I turned deaf ears to her
014 9
1 on those points in trying to rule on this matter. But I think
2 probably the right thing to do is allow the court of appeals to
3 look at this case and determine because I want everybody to
4 have a fair shot in their argument who has standing who doesn't
5 have standing. And I think her points made in her interview
6 were very important in the decision making by the court. I
7 also looked in the Section 153 of the Texas Family Code
8 sub-section F says on the motion of the parties, amicus
9 attorney or attorney ad litem for child or court's own motion
10 the court shall cause a record of the interview to be made when
11 the child is 12 years of age or older. I think in this matter
12 I don't think there's any question the child is 12 years of age
13 or older. That's not an issue. Further says a record of the
14 interview shall be made part of the record in this case.
15 I did look at the Nichol case. I'm not sure if
16 it makes a big difference whether or not you place it in
17 standing issue or place it in the 153 in this matter but it
18 appears that from my prospective and what you will see in the
19 record from the youngster that there are relevant facts therein
20 to make a decision on standing. I want to give the court of
21 appeals the most information they have in its being able to
22 rule on this matter this is a case and the subject matter.
23 Both of you realize there's been lots of different courts of
24 appeals with different opinions in this matter and I don't know
25 if it's ever going to end. Only way for it to end is for the
015 10
1 Supreme Court to take this matter up.
2 But I will grant the order unsealing the
3 transcription and the record of the child's statements in my
4 interview with her and I believe that is probably made part of
5 the record and feel what the court of appeals really needs to
6 look at to look at the entire case before them and I'll sign an
7 order accordingly.
8 MR. ALDERMAN: Thank you, Your Honor.
9 MR. DEATON: Thank you, Judge. May we be
10 excused?
11 THE COURT: Yes. And thank you for coming in on
12 short notice.
14 (Proceedings concluded.)
25 THE STATE OF TEXAS )
016 11
1 COUNTY OF ANGELINA )
3 I, Wendy Wilkerson, Official Court Reporter in
4 and for the County Court at Law of Angelina County, State of
5 Texas, do hereby certify that the above and foregoing pages
6 contain a true and correct transcription to the best of my
7 ability of the proceedings (or all proceedings directed by
8 counsel to be included in the Reporter's Record, as the case
9 may be), in the above-styled and numbered cause, all of which
10 occurred in open court or in chambers and were reported by me.
11 I further certify that this transcription of the
12 record of the proceedings truly and correctly reflects the
13 exhibits, if any, offered by the respective parties.
14 I further certify that the reporter's record
15 cost $55.50 and was paid for by Mr. Davis, Defendant.
16 WITNESS MY OFFICIAL HAND this the 29th day of
17 June, 2015.
19 /s/Wendy Wilkerson CSR: 5744 Exp: 12/31/15 20 Official Court Reporter County Court at Law No. 1 21 130 Marina Rd. AN Crockett, Texas 75835 22 (281) 507-3422