In Re JSP

278 S.W.3d 414, 2008 WL 5423036
CourtCourt of Appeals of Texas
DecidedDecember 31, 2008
Docket04-07-00481-CV
StatusPublished

This text of 278 S.W.3d 414 (In Re JSP) is published on Counsel Stack Legal Research, covering Court of Appeals of Texas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
In Re JSP, 278 S.W.3d 414, 2008 WL 5423036 (Tex. Ct. App. 2008).

Opinion

278 S.W.3d 414 (2008)

In the Interest of J.S.P., A Child.

No. 04-07-00481-CV.

Court of Appeals of Texas, San Antonio.

December 31, 2008.

*416 Karen Dalglish Seal, Law Office of Karen Dalglish Seal, P.L.L.C., San Antonio, TX, for Appellant.

Judith Ramsey Saldana, Law Offices of Judith Ramsey Saldana, Stephani A. Walsh Law Office of Stephani A. Walsh, San Antonio, TX, for Appellee.

Sitting: CATHERINE STONE, Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.

OPINION

Opinion by PHYLIS J. SPEEDLIN, Justice.

Mark Woerner appeals from the trial court's modification of the parent-child relationship. We reverse the portion of the judgment pertaining to the issue of possession and access, and remand for further clarification. In all other respects, we affirm the judgment of the trial court.

*417 BACKGROUND

Woerner was injured in an accident and suffered a closed-head injury. While at a rehabilitation center, he met April Pendleton ("April"), who soon became pregnant with Woerner's child. In February of 1999, J.S.P. was born. In 2002, appellee Kay Pendleton ("Pendleton"), J.S.P.'s maternal grandmother and April's legal guardian, brought a Petition in Suit Affecting the Parent-Child Relationship. An agreed order was entered which found that "the appointment of a parent or the parents of the child . . . would not be in the best interest of the child because such appointment would significantly impair the child's physical health or emotional development." Pendleton was appointed the sole managing conservator of J.S.P., and Woerner was permitted visitation supervised by Pendleton "at times mutually agreed to in advance." No child support was ordered.

In 2004, Woerner filed a petition to modify the parent-child relationship, requesting that he be appointed a joint managing conservator with the exclusive right to designate J.S.P.'s primary residence, and that a standard possession order be instituted. On May 10, 2005, temporary orders were entered, which continued supervised visitation, but on a schedule, and allowed persons other than Pendleton to supervise. Specifically, Woerner was granted supervised visitation with J.S.P. on Wednesdays from 4:00 p.m., or at the time karate class ends, until 6:00 p.m., and on Saturdays from 10:00 a.m. until 6:00 p.m.

In 2007, the conservatorship issues were tried to a jury. Woerner was appointed joint managing conservator along with Pendleton, who retained the exclusive right to designate J.S.P.'s primary residence. The trial court then conducted a bench trial on the issues of possession and access. The trial court continued the same supervised visitation schedule, and further ordered Dr. Todd Larsen, a child psychologist, to work with Woerner to develop a transitory program leading to unsupervised periods of possession, and, at such time as Dr. Larsen determines is appropriate, standard possession. Woerner's right to attend J.S.P.'s school activities was limited regarding special education meetings; specifically, it was ordered that Woerner be allowed to attend Admission Review and Dismissal (ARD) meetings as a participant only, but not as a voting member. The trial court also ordered Woerner to pay Pendleton $250 per month in child support and to reimburse Pendleton $186 per month for the cost of J.S.P.'s health insurance. Finally, Woerner was ordered to pay Pendleton $4,000 in attorney's fees.

The trial court made the following findings of fact, which were memorialized in the final order:

1. The child, [J.S.P.], has special needs[,] including but not limited to[,] ADHD[,] a history of explosive violent outbursts[,] and has been determined by the school district to qualify for special education due to emotional disturbance.
2. The father, Mark Woerner[,] is limited in his ability to independently make appropriate judgment decisions due to his cognitive impairment resulting from a closed head injury[.]
3. During the pendency of temporary orders through the time of trial[,] the father had exercised only supervised visitation either by Kay Pendleton, his mother[,] or Kids Exchange, a professional supervisory program.
4. During the periods of possession supervised by Kids Exchange[,] there had been eleven incidents in which it was documented that intervention *418 by supervisory personnel was required.
5. There was limited evidence of any support system available to the father outside of a professional supervisory program to assist him with periods of possession in an unsupervised setting[.]
6. Given the father's cognitive limitations and the child's special needs[,] the Court finds that the possessory rights of the father should be limited to protect the child.
7. The Court finds that the father previously participated in the child's therapy sessions with the child's psychologist, Dr. Todd Larsen.

On appeal, Woerner claims the trial court erred in: (1) appointing Dr. Larsen to determine Woerner's future access to J.S.P.; (2) drafting an order that is not specific enough to be enforced; (3) limiting Woerner's rights regarding possession and access to J.S.P.; (4) ordering Woerner to pay child support and health insurance for J.S.P.; (5) awarding Pendleton attorney's fees; and (6) admitting the testimony of Dr. Dina Trevino. We will address each issue in turn.

PARTIAL REPORTER'S RECORD

At the outset, we must note that this appeal is before us on a partial reporter's record. The reporter's record consists of "Jury Trial Excerpts" from March 7, 2007; a hearing held on May 14, 2007; and a hearing on Pendleton's motion to enter conducted on June 11, 2007. Noticeably missing from the record is the testimony of several key witnesses who testified during the six-day trial, including Woerner, Pendleton, Dr. Larsen, and Dr. Trevino. Pursuant to Rule 34.6(c), an appellant may present an appeal on a partial reporter's record if he includes in the request for the reporter's record a statement of the points or issues to be presented on appeal; he will then be limited on appeal to only those points or issues raised. TEX. R.APP. P. 34.6(c)(1); Bennett v. Cochran, 96 S.W.3d 227, 229 (Tex.2002). A copy of the request must be filed with the trial court clerk. TEX.R.APP. P. 34.6(b)(2). When an appellant fails to file the statement of appellate points or issues, we presume that the material missing from the reporter's record is relevant and supports the trial court's judgment. See Bennett, 96 S.W.3d at 229 (stating that "had [appellant] completely failed to submit his statement of points or issues, Rule 34.6 would require the appellate court to affirm the trial court's judgment").

In the instant case, Woerner did not file a statement of the points or issues which he intended to present on appeal as required by Rule 34.6(c)(1). We must therefore presume the omitted portions of the record are relevant and support the trial court's judgment.

STANDARD OF REVIEW

In determining issues of possession and access, the primary consideration is always the best interest of the child. TEX. FAM.CODE ANN. § 153.002 (Vernon 2002); In re J.A.J., 243 S.W.3d 611, 614 (Tex.2007). Trial courts have broad discretion to determine what is in a child's best interest. Villaseñor v. Villaseñor,

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Bluebook (online)
278 S.W.3d 414, 2008 WL 5423036, Counsel Stack Legal Research, https://law.counselstack.com/opinion/in-re-jsp-texapp-2008.