in the Interest of L.A.M., a Child

• Court: Court of Appeals of Texas
• Decided: January 24, 2006
• Docket: 14-05-00166-CV
• Status: Published

Opinion

Affirmed and Memorandum Opinion filed January 24, 2006

Affirmed and Memorandum Opinion filed January 24, 2006.

In The

Fourteenth Court of Appeals

____________

NO. 14-05-00166-CV

IN THE INTEREST OF L.A.M., A CHILD

On Appeal from the 246th District Court

Harris County, Texas

Trial Court Cause No. 94-61695

M E M O R A N D U M   O P I N I O N

Andrea Dee McFadden appeals from the trial court=s final orders modifying the parent-child relationship regarding L.A.M., a child.  McFadden contends that (1) the trial court erred by continuing in its final orders certain visitation requirements contained in the court=s temporary orders, and (2) she did not consent to having the temporary visitation requirements continued into the final orders.  We affirm.

Background

McFadden and William Kent Morgan were divorced in 1996.  McFadden was named sole managing conservator of their child, L.A.M., who was born in 1992 with Down Syndrome.  On April 2, 2004, Morgan filed a Petition to Modify the Parent-Child Relationship, seeking custody of L.A.M.  McFadden and Morgan entered a Rule 11 agreement regarding temporary orders, and the trial court granted temporary orders on April 21, pursuant to the agreement.  These orders named McFadden and Morgan ATemporary Joint Managing Conservators@ but gave Morgan the right to establish the child=s primary residence.  The orders further required that McFadden=s visitations with L.A.M. be supervised as follows:

that all visitation referenced in this Modified Standard Possession Order for Respondent, ANDREA MCFADDEN, shall be exercised in the home of the maternal grandmother, and in the presence of either of her parents.  This provision does not preclude the mother, child, and one or both of the grandparents from leaving the home.

At a trial on the merits, McFadden=s sister, Angie Thomas, testified that on March 30, 2004, she called McFadden, and from McFadden=s slurred speech she could tell that McFadden was not okay.  Thomas had suspected that McFadden might have been using drugs during the six months prior to that date based on her weight loss and lack of communication.  She went to McFadden=s home because she was worried that McFadden was alone with her two children, L.A.M. and a child from another father.  McFadden appeared to not be in her normal state of mind.  When McFadden refused to allow Thomas to take the children with her, Thomas called the police.  McFadden later confessed to Thomas that she was using cocaine on the day in question.

Corporal Rick Miranda and Deputy William Anders, Harris County constables, also testified at trial.  They both went to McFadden=s home on March 30, 2004.  Miranda stated that McFadden appeared Avery antsy,@ and Anders described her as Anervous, fidgety.@  They were told that she had taken several Vicodin pills and had consumed some alcohol.  At one point during the constables= visit, McFadden went to the couch, curled into a fetal position, and began rocking back and forth.  The constables called EMS, and when the EMS paramedics arrived, they examined McFadden and decided to take her to the hospital.

McFadden testified that she began using cocaine about six to eight months prior to March 30, 2004.  On March 30, she ingested cocaine, amphetamine, methamphetamine, Vicodin, and  alcohol.  She explained that she turned to drugs after her husband lost his job, another of her children died while in the care of her husband, and she and her husband had an altercation.^[1]  She further testified that she has taken steps to end her drug use, has not used cocaine since March 30, and has not had the desire to use it since that time.  There was evidence that McFadden submitted to three drug tests during the pendency of this action and that each returned negative for drug use.  McFadden=s husband also submitted to two drug tests during the period that returned negative for drug use.  Thomas testified that McFadden has Abeen doing wonderful@ since March 30, 2004, and that she would have no reservations about leaving her own children with McFadden and her husband for a weekend.  She stated that she does not think that McFadden needs to have her visitations with L.A.M. supervised.  McFadden testified that she thought it was in L.A.M.=s best interest for L.A.M. to live with Morgan but that she wanted to have unsupervised visitation with L.A.M.

On November 15, 2004, the trial court entered its final orders, again naming McFadden and Morgan as joint managing conservators, granting Morgan the right to establish the child=s primary residence, and including verbatim the requirement quoted above regarding supervised visitation.  On appeal, McFadden contends that the trial court erred by continuing the supervised visitation provision in its final orders and that she did not consent to having the temporary provision continued into the final orders.

Discussion

In her first issue, McFadden asserts that the trial court erred in continuing the supervised visitation provisions from the temporary orders to the final orders.  We begin by noting that it is difficult to tell from the briefing exactly what McFadden is arguing under this issue.  She states that A[t]here are no provisions in the Texas Family Code for continuing temporary orders as final orders.@  But she fails to cite any authority or make any argument as to why it would be improper for a court to include the same provision in its final orders as it did in its temporary orders.  The court did not, as McFadden suggests, simply order visitation to continue as provided in the temporary orders; after a trial on the merits, the court entered its final orders, which happened to have language consistent with that used in the temporary orders.  We see nothing inherently wrong with this practice.^[2]  Accordingly, McFadden=s first issue is overruled.

In her second issue, McFadden contends that she did not consent to the trial court=s continuation of supervised visitation from the temporary orders to the final orders.  She further asserts that a judgment rendered on a settlement agreement after one party revokes consent to that agreement is void, citing S & A Restaurant Corp. v. Leal, 892 S.W.2d 855, 857 (Tex. 1995).  However, it is clear from the record that although the trial court may have based its temporary orders on an agreement by the parties regarding such temporary orders, the trial court entered its final orders after a trial on the merits.  McFadden provides no authority or argument to explain why the court could not enter final orders after a trial on the merits without McFadden=s consent.  McFadden testified at trial that she did not want to have to go to her parent=s house in order to have visitation with L.A.M.  The trial court clearly decided otherwise.  McFadden=s second issue is overruled.

We affirm the trial court=s judgment.

/s/      Adele Hedges

Chief Justice

Judgment rendered and Memorandum Opinion filed January 24, 2006.

Panel consists of Chief Justice Hedges and Justices Yates and Anderson.

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^[1]  The coroner=s report for the deceased child concluded that the child drowned to death.  The child was apparently in the bathtub at the time under the care of McFadden=s husband.  There was also a suggestion in Thomas=s testimony that the altercation between McFadden and her husband involved violence.

^[2]  In three sentences, McFadden points out that she and her husband passed drug tests during the pendency of the action; additionally, Thomas stated she would have no reservations leaving her own children with McFadden and in her opinion McFadden did not need to have her visitation with L.A.M. supervised.  However, McFadden makes no discernable argument based on these pieces of evidence.  If these sentences are intended to be attacks on the sufficiency of the evidence to support the trial court=s holdings, such argument is improperly briefed.  See Tex. R. App. P. 33.1(h) (requiring that an appellant=s brief Amust contain a clear and concise argument for the contentions made, with appropriate citations to authorities and to the record@).  In her Reply Brief, McFadden asserts that she had no burden at trial, but Morgan had the burden to show that a modification would be in the best interest of the child and, among other possibilities, that the circumstances of the child, a conservator, or other party affected by the order have materially changed.  However, again, McFadden makes no actual arguments regarding this assertion.  She also provides no citation regarding this issue.  See id.

Furthermore, even if we considered either of these passages as proper attacks on the sufficiency of the evidence, we find that there was sufficient evidenceCparticularly McFadden=s admitted drug use while caring for her children and the death of another child in her home while in the care of her husbandCto support the trial court=s conclusions both that there was a material change in circumstances and that supervised visitation is in L.A.M.=s best interest.  See Tex. Fam. Code Ann. ' 156.101 (Vernon Supp. 2005) (providing that a court may modify an order establishing conservatorship or possession and access if the modification would be in the best interest of the child and, among other possibilities, the circumstances of the child, a conservator, or other party affected by the order have materially and substantially changed); City of Keller v. Wilson, 168 S.W.3d 802, 809-23 (Tex. 2005) (providing standards for legal sufficiency review); Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241 (Tex. 2001) (providing standards for factual sufficiency review); In re A.D.H., 979 S.W.2d 445, 448-51 (Tex. App.CBeaumont 1998, no writ) (considering evidence of drug use in determining whether a material and substantial change has occurred and whether a modification would be in the best interests of the child).