in the Interest of E. N. C.

Opinion

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-07-00099-CV

In the Interest of E. N. C.

FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT NO. 210653-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING

MEMORANDUM OPINION

The legislature has provided, with a particular emphasis on suits affecting parent-

child relationships, that “[i]t is the policy of this state to encourage the peaceable resolution of

disputes . . . through voluntary settlement procedures.” Tex. Civ. Prac. & Rem. Code Ann.

§ 154.002 (West 2005). In light of this legislative policy, we believe that this case is appropriate for

alternative dispute resolution by mediation, and we, therefore, abate the appeal and refer the matter

for mediation. See id. §§ 154.021, .023(a) (West 2005).

The referral is not mandatory, and the parties are free to reject the recommendation.

See id. § 154.022 (West 2005) (allowing party to file objection to referral to alternative dispute

resolution). If the parties do not wish to participate in mediation, they are instructed to communicate

that fact to this Court within 10 days. See id. However, should the parties agree to participate in a

mediation, Mr. Robert B. Luther has agreed to serve as a pro bono mediator at his office in Austin,

Texas, and we find that he is qualified to act in that capacity. If the parties are amenable to mediation, they are instructed to contact Mr. Luther to

establish a date for the mediation, provided that the date shall occur no later than 45 days after the

date of this order. After mediation, Mr. Luther is instructed to inform this Court in writing when the

mediation is completed and whether a settlement was reached. Mr. Luther is also instructed to send

a copy of the report to each of the parties.

If the parties communicate to this Court that they do not want to participate in

mediation or if Mr. Luther informs this Court that a settlement was not reached through mediation,

then the appeal will be abated and sent back to the district court. After the trial ended, the district

court issued a final order appointing Kerry and Lisa Daun as managing conservators for E.N.C. The

order also stated that Tammie Carr was not entitled to the presumption that a biological parent be

appointed managing conservator because there is a “history of family violence involving the parents

of the child.” See Tex. Fam. Code Ann. § 153.131(b) (West 2002). Alternatively, the order

specified that even if Carr was entitled to the presumption, Carr should not be appointed managing

conservator because the appointment “would significantly impair the child’s physical health or

emotional development.” See id. § 153.131(a) (West 2002). The order appointed Carr as the sole

possessory conservator but did not award her any powers or impose any duties other than to inform

the Dauns concerning any information relevant to E.N.C.’s welfare and to inform the Dauns if she

marries or lives with a registered sex offender. Further, despite naming Carr as the possessory

conservator, the order did not specify any visitation rights for Carr other than listing two dates upon

which Carr could have supervised visitation. Carr requested that the district court issue findings of

2 fact and conclusions of law supporting its order, see Tex. R. Civ. P. 296, but no findings or

conclusions were ever produced.

The absence of findings of fact and conclusions of law in the judgment prevents us

from conducting a meaningful review of the district court’s decision. Accordingly, if the parties do

not desire to participate in mediation or cannot reach a settlement, we will issue a new order abating

the appeal and sending it back to the district court with instructions that the district court enter

findings and conclusions supporting its order.

David Puryear, Justice

Before Justices Patterson, Puryear, and Henson

Abated

Filed: February 22, 2008