COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00057-CV
IN THE INTEREST OF N.W. AND N.W.C., CHILDREN
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FROM THE 431ST DISTRICT COURT OF DENTON COUNTY
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MEMORANDUM OPINION 1
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I. Introduction
Appellant Nannette W. Cooper (Mother) appeals from the trial court’s final
order in this suit for modification of the parent-child relationship initiated by
Appellee Nathanael Cooper (Father). Mother contends in three issues that the
trial court erred by not interviewing her daughter in chambers; erred by
permanently enjoining Mother from filing complaints, grievances, or lawsuits
against any of the experts involved in the case; and abused its discretion by
1 See Tex. R. App. P. 47.4. appointing Father as sole managing conservator with primary custody of their
daughter because the evidence was factually insufficient to support the
appointment. We modify the final order in part and affirm as modified.
II. Background
Mother and Father were divorced in 2003. They have two children from
their marriage, Nelson and Noelle. 2 At the time of divorce, Mother and Father
were appointed joint managing conservators of the children with Mother having
primary possession and Father having visitation rights. Father filed a petition to
modify the parent-child relationship in June 2008, seeking health insurance and
child-support modifications to reflect his new employment. Possession of Nelson
and Noelle was not at issue in 2008 but had become the primary disagreement
between Mother and Father by the time of the final hearing in October 2011.
Nelson was seventeen years old, and Noelle was twelve at the time of the final
hearing. 3
A. Court-Appointed Experts’ Testimony
Dr. Donna Milburn testified at the final hearing that she was appointed by
the trial court to perform psychological evaluations of Mother, Father, and
Nelson. Dr. Milburn testified that she had conducted individual diagnostic
2 We use aliases for the children to protect their identities. See Tex. R. App. P. 9.8(b)(2). 3 Mother does not contest the portions of the final order relating to conservatorship and possession of Nelson.
2 interviews and “a battery of psychological tests”; that she had jointly interviewed
Mother and Father; and that she had reviewed a series of documents including
court documents and motions, a police report, progress notes and other therapy
records, and information provided by the parties. Specifically concerning Nelson,
Dr. Milburn reviewed information provided by Mother and Father, information
from her two diagnostic interviews with Nelson, results from a group of objective
psychological tests, and paperwork completed by one of Nelson’s teachers.
Dr. Milburn testified that Nelson has “a lot of behaviors and symptoms that
are consistent with the diagnosis of attention deficit disorder, predominantly the
inattentive type.” She described Nelson as “having a parent-child problem” in his
interactions and contacts with Mother, but she also testified that she did not
believe Nelson to be an overly aggressive child and that she felt Nelson had
been honest with her when answering her questions.
Dr. Milburn testified that Mother has “some difficulty with interpersonal
relationships, with perhaps at times having some paranoia [and] difficulty trusting
people” and that Mother may have a personality disorder “like an antisocial
personality disorder.” Dr. Milburn testified that Mother was trying to present
information in the best possible light rather than honestly and directly answering
questions and that Mother would alter her answers to Dr. Milburn’s questions
based on her perception of Dr. Milburn’s facial expressions. Dr. Milburn
acknowledged that such conduct was not unusual in child-custody evaluations
but testified that Mother’s testing showed “an elevated score on the lie scale.”
3 She also testified that Mother’s testing results were consistent with her own
interactions with Mother.
As for whether Mother could provide a safe, stable home for the children,
Dr. Milburn testified that she could not answer questions about Noelle because
she had not tested, interviewed, or spent any time with Noelle and that she could
not simply extrapolate Nelson’s situation to Noelle because each child has an
individual personality and individual needs. Dr. Milburn did say, however, that
past behavior has always been the best predictor of future behavior and that
“there is a possibility that [Mother] could engage in the same kind of behavior
with any other child.”
On cross-examination, Dr. Milburn acknowledged that conflicts between
teenage boys and their parents are not unusual. Referring to Nelson’s
comments that Mother would “throw him under the bus,” Dr. Milburn testified that
Nelson told her that Mother had lied to the police and filed a false charge of
assault against him and that he had not hit Mother. Dr. Milburn agreed, though,
that Mother maintained that Nelson had assaulted her. Dr. Milburn also agreed
that Nelson was very angry about being arrested and placed into juvenile
detention.
Dr. Milburn was asked about the allegation of sexual molestation made
against Nelson just before a hearing in this case. Dr. Milburn testified that she
was not surprised that Mother had made such an allegation just prior to a court
hearing because, in her assessment of Mother, Mother is “manipulative in trying
4 to get whatever she wanted, consistent with [Nelson]’s statements [to Dr.
Milburn] that his mother would throw him under the bus to win, and that for him to
be charged or accused of being sexually assaultive to his sister would have been
another one of those kinds of accusations.” CPS investigated the sexual
molestation allegation but ruled it out. Dr. Milburn testified that “it’s better than a
fifty-fifty chance” that Mother prompted Noelle to make the allegation against
Nelson. Explaining why she believed these types of allegations are detrimental
to the children, Dr. Milburn testified that it is “detrimental for children anytime
there’s a lot of conflict in the case . . . and [when] there’s any kind of
encouragement, emotionally or directly, to try and influence what the children say
or think about their siblings or their other parent.”
Dr. Milburn was also asked to define “enmeshed,” and she testified,
Enmeshed, in psychological theory, is very similar to what most people have heard as being codependent. It’s when two individuals are so close together that sometimes they seem to share each other’s emotions and perceptions and feelings. Enmeshment involves a lack of individual identity. So if one person in the enmeshment is upset, the other person’s upset. If one person is happy, the other person is happy. And the two individuals are so close that the relationship is considered dysfunctional.
Dr. Milburn related that when one of the persons in the enmeshed relationship
begins to pull away, the other person “become[s] angry and hostile alternating
with clingy and trying to get the person back[,] and it can be a very volatile
relationship between the two individuals.” Dr. Milburn testified that therapy
records in the case listed a goal of “working on the enmeshed relationship
5 between the mother and son,” but Dr. Milburn was not asked whether she
personally believed that Mother and Nelson had an enmeshed relationship.
Dr. Milburn testified that Nelson had said to her that “he was trying to get
more independence from his mother” and that “he was trying to spend a little bit
more time with his father.” Dr. Milburn also testified that Nelson had expressed
anger toward Mother’s interference in his relationship with Father and had said
that Mother told him she would never see him again if he went to live with Father.
Dr. Milburn testified she was not surprised to learn Mother had not seen Nelson
since Nelson had gone to live at Father’s house. She also testified that a
statement like the one Mother reportedly made to Nelson would be damaging to
a child and that Mother not having seen Nelson could potentially harm Noelle.
Rahna Cutting was the court-appointed parenting facilitator. She testified
that she met with Mother, Father, Nelson, and Noelle and spent three to five
hours with each person, with some of that time as a group and some separately.
Her last meeting with any of the family was in July or August 2009. Cutting
testified that the conversations between Mother and Father were “somewhat
tense” but that they were able to talk with one another about the children.
Cutting’s impression of the family was that “there was a significant amount
of conflict, not only between the parents, but where the children had been drawn
into that.” Cutting testified she had observed some conflict between Nelson and
Noelle, with Noelle “preferring to protect mom” and Nelson “preferr[ing] to protect
dad.” She testified that the children “were used to create a lot of messages,
6 carrying back and forth, and to be spies” at Mother’s request. Cutting learned
about the spying requests from Noelle but testified that Mother denied having
used the children as spies. Cutting explained that she discussed the issue with
Mother in a generic way so that Mother would not feel accused or singled-out,
but Mother responded that she did not wish to continue working with Cutting.
Also, Mother had not been amenable to meeting with Cutting and Father to
address interim plans for the children.
Dr. Michele Greer testified that she was appointed to provide family
counseling in this case and that the appointment was requested by Mother’s
attorney. She first met with the family in November 2010. She met with Mother,
Father, and Nelson individually; Mother and Father jointly; Father and Nelson
jointly; Mother and Noelle jointly; and Nelson and Noelle jointly. Dr. Greer
testified that there was a lot of conflict between Mother and Father and between
Mother and Nelson. Dr. Greer spoke with court-appointed hearing facilitator
Aaron Robb, the amicus attorney, and Mother’s previous attorney and reviewed
Dr. Milburn’s report and other documentation provided by Mother. She described
Nelson as cooperative and calm but with a lot of sadness and anger about his
relationship with Mother.
Dr. Greer testified that her personal observations of Mother were
consistent with those expressed by Dr. Milburn in her report, specifically in that
Mother would get angry or discontinue meetings if Mother did not like what she
was hearing. She also testified that she “had a lot of concerns” about whether
7 Mother was being honest with her and that her concerns were based on her
interactions with Mother and her conversations with Father and Nelson. Dr.
Greer testified that Father’s and Nelson’s versions of events were consistent and
that when she addressed her concern with Mother, Mother would become very
upset and try to change the subject. Dr. Greer also testified that Mother has
“some difficulty with emotional regulation where she would either be very angry
or very sad,” adding that Mother at one point “threw herself down” on Dr. Greer’s
office floor.
Dr. Greer related an episode that had occurred in her office waiting room.
Mother and Father were meeting with Dr. Greer, and Nelson was in the waiting
room. Mother said “some pretty hurtful and harmful things” about Nelson, and
Dr. Greer believed that Nelson could hear Mother’s comments. Dr. Greer
encouraged Mother to lower her voice and told Mother that she was concerned
that Nelson could hear, but Mother said that she did not care and stormed out of
the office. Dr. Greer testified that Mother had said that she would never be alone
with Nelson, that he was not welcome at her house, and that he could not come
over to her house. Dr. Greer opined that those types of statements are harmful
for a child to hear from a parent. Dr. Greer also testified that those statements
could be harmful to Noelle if Mother truly felt that way about Nelson.
Based on her interaction with the family through February 2011, Dr. Greer
had concerns about Mother’s ability to raise Noelle in a way that would support
relationships between Noelle and Father and Noelle and Nelson. Dr. Greer
8 testified that Mother was “very resistant” to her recommendations to include
Father in things involving the children. Specifically, Dr. Greer discussed with
Mother how her behavior at school events put Noelle in the middle of the conflict
between Mother and Father and how Noelle might be allowed to address both
parents at once instead of having to choose one over the other. Dr. Greer
testified that Mother “was constantly resistant to that and refused to follow any
recommendations.”
Dr. Greer also testified that parental alienation occurs when one parent
“systematically attempts to exclude” the other parent from a child’s life either
physically or emotionally. She testified Mother had in some ways “made great
effort to exclude [Father] from actively participating and interacting with [Noelle].”
Dr. Greer testified that “the children need to be in an environment that’s going to
foster acceptance of both parents” but that Mother had not demonstrated an
ability to do that. Dr. Greer testified that Father was “not without fault in the case”
but that Father “always seemed to follow the recommendations in terms of the
children.” Father had brought Nelson for counseling, had wanted to start
counseling for the entire family, and had requested counseling for Nelson and
Noelle to improve their relationship.
Dr. Greer testified to several sessions with Noelle and several joint
sessions with Noelle and Mother. She testified that Noelle would say certain
things when she was with Mother, that Noelle would say very different things
when she was with Father and Nelson, and that Noelle seemed “very stressed
9 and very torn.” Dr. Greer stated that these types of discrepancies were not
unusual in cases like this one but that Noelle’s responses were abnormal even
with that understanding.
Dr. Greer described Noelle and Nelson’s relationship as “stressed.” She
testified that they were able to talk and joke with one another after a time but that
“initially there was a lot of stress between the two of them and tension.” She
testified that Noelle “gets upset that she feels like [Nelson] says negative things
about their mom” and that Nelson “feels that [Noelle] accepts their mom and
plays into a lot of the things [Nelson] considers to be things that are not truthful.”
Dr. Greer was not concerned about the children spending time together but
recommended that they be supervised. Dr. Greer testified that she had
discussed appropriate safeguards with Father and that Father was willing and
able to put those safeguards in place.
Dr. Greer also testified that Father discussed with her several times his
decision to seek custody of Noelle. Dr. Greer testified that Noelle did not want to
live with Father as of February 2011 but that she was not aware of Noelle’s
current wishes. Dr. Greer added, though, that she did not have concerns about
Father having primary custody of Noelle. As for Mother, Dr. Greer expressed
concern that Mother would not facilitate relationships between Noelle and Father
and Noelle and Nelson. Dr. Greer also opined that Noelle’s relationship with
Mother could deteriorate in the future if Noelle disagrees with Mother or seeks
10 independence from Mother. In addition, Dr. Greer testified that she believed
Mother had caused harm to Noelle by cutting off contact with Nelson.
Dr. Greer testified that Noelle likes to read, to work with crafts, and to play
on her computer. Dr. Greer was aware that Noelle did not want Father to be on
her computer, and Dr. Greer had been told that Father had called twelve-year-old
Noelle a whore but said that she did not know whether that had actually occurred
because she had received conflicting information about the allegation. Dr. Greer
testified that Noelle had “misrepresented things [to her] on several occasions.”
Dr. Greer testified that Mother and Noelle’s relationship is enmeshed, and
she described “enmeshed” as being
like codependence. It’s [where] there’s two individuals. You can just -- the best way to describe it is kind of one body and two heads. And so that the thoughts, feelings, and actions are consistent. So it’s like[] you’re dealing with one individual. So if one person’s happy, the other person’s happy and doesn’t have the ability to really be autonomous and have their own thoughts, feelings, and actions.
Dr. Greer testified that Mother and Noelle’s relationship was, as of February
2011, enmeshed to the point of being unhealthy.
Dr. Greer did not believe Mother and Father would be able to reach
agreements about the children’s education, medical needs, or mental health
needs. She opined that Father is better suited to make those decisions for the
children because he tries to include Mother and does not try to exclude her. Dr.
Greer also testified that even when Father had not agreed with Dr. Greer’s
recommendations, he had followed through on the recommendations without
11 threatening to terminate further services. Dr. Greer testified that if Mother and
Father were ever going to be able to coparent the children, there would have to
be very specific court orders in place with serious consequences for failure to
comply. In Dr. Greer’s opinion, some cases reach a point where courts have
done all they can do, that one parent has to eventually be given exclusive
responsibilities to the exclusion of the other parent, and that the parties had
reached that point in this case.
B. Father’s Testimony
Father testified that when he and Mother divorced in 2003, they agreed to
joint custody but that Mother had primary custody. Father testified that he and
Mother had a “back and forth” ability to work with one another following their
divorce and that although there were things that made him want to seek custody
of the children, he did not choose to do so at that time.
Father testified that he and Nelson spend time together working on
motorcycles. Noelle does not have the same interests, but Father testified that
Noelle had not told him that she did not want to visit him on weekends. Father
testified that he had attended the children’s school functions and some of the
children’s parent-teacher conferences and medical appointments.
Father testified that he initiated the current litigation to put the children on
his insurance plan through his new employer and to have his child support
adjusted. He later decided to seek possession of Nelson because Mother was
tormenting Nelson and had “set her sights out to destroy him,” making false
12 accusations and getting him arrested. He testified that Mother did not stop until
the court had removed all unsupervised contact between Nelson and Mother.
Father testified that he also did not initially intend to seek custody of Noelle
but that he now did not feel he had any other choice, stating, “Given [Mother]’s
previous behavior and her personality with my son, I think the threat is always
there that she could turn on my daughter as she did my son.” Father also
expressed his belief that Mother, “through manipulation and deceit,” had
successfully alienated Noelle from him, Nelson, and the rest of Father’s family.
Father testified that he consulted his parents and Dr. Greer before deciding to
seek custody of Noelle and that he had also talked with Nelson about his
decision.
Father testified that he discussed with Dr. Greer the possibility of false
accusations by Noelle against Nelson and that he planned to immediately have
family counseling on a weekly basis to address any issues between the children
before the issues escalated. Father also testified that he had a plan to help
Noelle with any feminine issues that may arise in the future, using his own
mother for help or having Noelle continue therapy with a female therapist with
whom she could speak freely. Father testified that having Noelle reside with him
was in her best interest because of Mother’s alienating behavior and because of
the history of the case, including the appointment of two parenting facilitators,
several counselors, and psychologists. Father estimated that he had spent
between $20,000 and $25,000 on experts in the case.
13 C. Mother’s Testimony
Mother testified that she has a degree in molecular biology with a minor in
chemistry and a master’s degree in molecular biology. At the time of the final
hearing, she was working on a PhD, was a research associate, and was running
a graduate lab. Mother testified that her job requires a lot of analytical thinking
and questioning. She acknowledged that she had questioned a lot of what the
experts had told her in the case, but she testified that she was not trying to be
offensive.
Mother testified that she defines “coparenting” as the parents’ “ability to
communicate effectively for the children’s needs.” Mother testified that, between
the time of divorce in 2003 and the time Father filed the motion to modify in 2008,
Father had regular visitation with the children, she had not withheld visitations
from Father, and she and Father had been able to talk with one another about
the children. She testified that Father did not attend school events but that he
was “religious” about visitations. Mother agreed that Father had helped Noelle
with one science project but stated that he had not done anything else involving
the children’s schoolwork or school events. She said that she was “shocked” that
Father sued her in 2008 and that she was concerned that she would lose her
children.
Mother testified that the coparenting between her and Father ended in
December 2008. When asked what happened in 2008, Mother stated, “He told
me not to F with him, that his parents had money. He would make me miserable.
14 And then he assaulted my son.” Mother testified that Father “threw [Nelson] into
a closet door, breaking it” and that Father “lied about it on the stand in December
of 2009.” 4 Explaining why visitation exchanges occurred at a police station,
Mother testified, “Because [Nelson] was exhibiting the aggressive behavior that
he learned from his father[,] and [Father] was stalking [her] house.” Mother
further stated that Father “would park down the street in the dark and watch [her]
house. He would drive by [her] house, drop things off on the porch, put things in
[her] mailbox, and just drive down the street and try and catch the children
outside.” Mother testified that Father’s behavior continued until August or
September 2010 and that the court had ordered exchanges at the police station
in November 2010.
Mother denied that she and Noelle have an enmeshed relationship, and
she testified that she does not discuss the litigation with Noelle. Mother also
testified that she has not thrown Nelson “under the bus,” that the phrase is one
that Father uses, and that she has attempted to place authority figures into
Nelson’s life so that he will have responsibility and accountability. Mother
believed that Nelson and Noelle did not have problems in their relationship while
they lived with her but that problems began after the litigation started. She
testified that, after the litigation started, Nelson “hit [Noelle] at the university
because she wouldn’t get off the computer,” and he “kicked her in the legs
4 Father denied both of Mother’s allegations during his testimony.
15 because she wanted to watch cartoons.” Mother testified that Nelson had also
called her and Noelle profane names and that the name-calling was causing
problems for Noelle.
Mother testified that Nelson had trouble with destroying property while he
lived with her and that Nelson had been suspended two days from school while
living with Father for sexually harassing a male student. Mother described the
incident as “calling names and making another student uncomfortable, just being
a bully.” Mother testified that Nelson had assaulted her “like five” times before
she finally called the police as a last resort and that she was told that Nelson
needed a wake-up call. Nelson was placed on probation after going to juvenile
detention, and Mother testified that Nelson had written her a “beautiful letter.”
She testified that she and Nelson, near the time of the final hearing,
communicated through text messages, and she said that they texted between
twenty and forty times per week depending on the subject.
Mother testified that her relationship with Nelson was much less stressful
once Nelson moved in with Father. She testified that Nelson’s problems began
at the end of 2008 when Nelson was fourteen and that his problems became
increasingly worse. Mother acknowledged that she had possibly become
overprotective of the children and that she could see Nelson’s recent
improvement. But Mother testified that it would not be a good thing for Noelle to
also live primarily with Father, and she described Noelle’s interests and the
things she and Noelle do together.
16 Mother testified that she had not seen Nelson since Nelson went to live
with Father because she could not afford the supervised visitations. Mother also
testified that she and Father would be able to reach agreements on the children’s
education and medical needs and could communicate effectively about the
children.
D. Trial Court’s Judgment
At the end of the hearing, the trial court orally pronounced that Father
would be the sole managing conservator of both children, that Mother would be
possessory conservator, and that Father would have the exclusive right to
establish both children’s primary residence, except that both children would
remain in their current schools. The trial court ordered that Mother would have
supervised possession of Noelle for four hours on the first and third Saturdays of
each month and gave Nelson the option of choosing whether to visit Mother
without any court-ordered visitation obligations. The trial court also announced
that Mother would be permanently enjoined “from filing any complaint, grievance,
or lawsuit against any expert involved in this litigation, be it attorney,
psychologist, or counselor, or anyone else without express permission from the
Court if related to professional conduct during this litigation.” On November 17,
2011, the trial court signed a final order that was consistent with its oral
pronouncements. This appeal followed.
17 III. Interview of Child
Mother contends in her first issue that the trial court erred by refusing to
interview Noelle as required by family code section 153.009(a). Father responds
in part that the trial court acted within its discretion by refusing Mother’s last-
minute request for an in chambers interview.
Family code section 153.009(a) states:
In a nonjury trial or at a hearing, on the application of a party, the amicus attorney, or the attorney ad litem for the child, the court shall interview in chambers a child 12 years of age or older and may interview in chambers a child under 12 years of age to determine the child’s wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child’s primary residence.
Tex. Fam. Code Ann. § 153.009(a) (West 2008). Section 153.009(c) states that
“[i]nterviewing a child does not diminish the discretion of the court in determining
the best interests of the child.” Id. § 153.009(c).
There are two motions for the trial court to interview Noelle in the appellate
record, and Mother points to both to support her argument that the trial court
reversibly erred by not interviewing Noelle in chambers. On August 18, 2010,
Mother filed a “Motion for Judge to Confer with Child.” The parties had a
temporary orders hearing the next day, but Mother did not bring her request for
an interview to the trial court’s attention at that hearing. Moreover, Noelle was
eleven years old at the time that Mother filed the motion, meaning section
153.009(a) gave the trial court discretion and did not require that the trial court
interview Noelle at the time. See id. § 153.009(a).
18 Mother filed her second motion for an interview on October 11, 2011, the
day before the final hearing. During opening statements at the final hearing,
Mother’s counsel mentioned the recently-filed motion for the trial court to
interview Noelle, and the following exchange occurred:
[MR. BUCHANAN:] We have -- I filed, whether it’s made it to the Court or not, a request for the Court to interview the child, you know, in chambers. I think it’s required anyway under custody issues. So we’re going to rely on the Court’s wisdom in talking to the girl.
We’re content, Judge, under the last order. We’re content without creating more problems and attorney’s fees. Let the 17- year-old boy -- he needs to be with his dad anyway. They do motorcycles together and work on them and ride them and that type of thing, and they’re father and son. He needs to stay with his dad. But at the same time, we’re urging -- it’s our position that the 12- year-old daughter needs to stay with the mother. Thank you.
THE COURT: Let me just be clear. This case has been pending for some nearly three and a half years, and the first I’m hearing of any request to interview the child is today on the day of final trial. While the statute doesn’t speak to timeliness of the request, I certainly don’t consider the spirit of the statute to allow a party to wait until the very, very, very last minute to make that request.
If I’m wrong about that, the Court of Appeals can tell me, but I don’t intend to interview the child prior to rendering a final decision.
MR. BUCHANAN: I think it had already been filed by another lawyer. I think that request had previously been filed by one of the other lawyers in this case. I think it was on -- 8-19-2010, she’s telling me.
THE COURT: Let me be clear. Lawyers file pleadings all the time, and sometimes those are mere strategic decisions, sometimes they’re substantive requests. A motion has no meaning until it’s urged. And all I’m saying is no one has asked this Court to interview
19 that child; that is, acted on that pleading, until today, to my knowledge.
MR. BUCHANAN: It’s my understanding on that, Judge, that’s to put the Court or just to inform the Court of what we’re requesting. It’s my understanding of the statute that if it’s a custody issue that you don’t have to even file a request anymore, if that’s what the issue is.
It’s also my understanding that there wasn’t an issue about the girl up until late in this litigation. Was it not until -- well, May 18th, two thousand and, maybe, ten.
THE COURT: That’s still a year and a half ago.
MR. BUCHANAN: Yeah, 2010. I don’t believe that was an issue.
THE COURT: That was still a year and a half ago, and I’m simply saying I’m not going to delay the finality of this case that’s been going on for three and a half years because, at the last minute, someone finally decides to ask me to interview the child. There are a lot of professionals that have been involved in the case, they’re apparently ready to testify, and I’m going to rely upon their continuous and deep involvement in this case to guide the Court’s final decision. And I’m not going to delay this final trial so that an interview with the child can be arranged.
So I appreciate your advocacy for your client, but I’m simply making clear that that’s my intention. And if that’s in violation of the statute, so be it. There’s your first point of error.
Mother points to the legislature’s use of the word “shall” in section
153.009(a) and argues that the trial court had a mandatory obligation to interview
Noelle without regard to the timeliness of the motion. Addressing a prior version
of section 153.009(a), this court has held that “a motion for new trial is too late a
time to make application for a judge to interview the children and have the
interview be mandatory.” Hamilton v. Hamilton, 592 S.W.2d 87, 88 (Tex. Civ.
20 App.—Fort Worth 1979, no writ) (quoting relevant part of former family code
section 14.07(c) to state that “[u]pon the application of any party and when the
issue of managing conservatorship is contested, the court shall confer with a
child 12 years of age or older”). Similarly, our sister court has held that because
the mother presented her motion to interview the child on the same date as the
hearing on the father’s motion for summary judgment, “the trial court could
reasonably conclude [the mother]’s motion was not timely and was made for
purpose of delay.” In re J.G.M., No. 09-11-00368-CV, 2012 WL 1951119, at *3
(Tex. App.—Beaumont May 31, 2012, no pet.) (mem. op.). 5
Here, Mother did not file her motion requesting that the trial court confer
with Noelle until the day before the final hearing, and the trial court was clearly
concerned that the late request was a dilatory tactic that would unnecessarily
prolong what was already protracted litigation. Because this court has previously
recognized that a request that a child be interviewed can be untimely and
because our sister court has held that a trial court has discretion to deny a
request for an interview if the request is presented on the day of the final hearing,
5 In contrast, the Corpus Christi Court of Appeals has held that a trial court has no discretion to deny a request to interview a child that is at least twelve years of age because the statutory language is mandatory rather than discretionary. In re C.B., No. 13-11-00472-CV, 2012 WL 3139866, at *6 (Tex. App.—Corpus Christi Aug. 2, 2012, no pet.) (mem. op.). The court did not, however, directly address the timeliness of the request and noted only that the request for an interview was made at the close of the evidence. Id. Even so, the court concluded that the trial court’s “error was harmless and did not amount to reversible error.” Id. at *7.
21 we cannot hold that the trial court erred by declining Mother’s request that the
trial court interview Noelle. See Hamilton, 592 S.W.2d at 88; see also J.G.M.,
2012 WL 1951119, at *3. And even if we were inclined to conclude that the trial
court’s refusal was error, Mother did not make an offer of proof as to what Noelle
would have said to the trial court in an interview, meaning we are unable to
determine whether the trial court’s refusal was harmful. See De La Hoya v.
Saldivar, 513 S.W.2d 259, 261 (Tex. Civ. App.—El Paso 1974, no writ)
(overruling complaint that trial court erred by not interviewing all children involved
in the case because, without a record or “bill of exception to show what the
testimony of such child would have been,” the court could not determine if
alleged error was reversible); see also Tex. R. Evid. 103(a)(2) (providing that
exclusion of evidence is not error unless the exclusion affects a party’s
substantial right and “[i]n case the ruling is one excluding evidence, the
substance of the evidence was made known to the court by offer, or was
apparent from the context within which questions were asked”). We overrule
Mother’s first issue.
IV. Permanent Injunction
Mother argues in her second issue that the trial court erred by including a
permanent injunction against her in the final order. She argues that she had
inadequate notice that Father would seek a permanent injunction, that the
evidence is insufficient to support the permanent injunction, that the permanent
injunction is beyond the trial court’s authority, and that Father does not have
22 standing to seek injunctive relief on behalf of the professionals involved in the
case.
The trial court’s final order includes the following injunctive language:
The Court finds that, because of the conduct of [Mother], a permanent injunction against her should be granted as appropriate relief because there is no adequate remedy at law.
The permanent injunction granted below shall be effective immediately and shall be binding on [Mother]; on her agents, servants, employees, and attorneys; and on those persons in active concert or participation with her who receive actual notice of this order by personal service or otherwise.
IT IS ORDERED AND DECREEED that [Mother] is permanently enjoined from filing any complaint, grievance, or lawsuit against any expert involved in this case, including any attorney, psychologist, or counselor, without express permission from the Court if such complaint, grievance or lawsuit is related to professional conduct during this litigation.
[Mother] waives issuance [of] service of the writ of injunction, by stipulation or as evidenced by the signatures below. IT IS ORDERED that [Father] and [Mother] shall be deemed to be duly served with the writ of injunction.
To be entitled to a permanent injunction, the party seeking the injunction
must plead and prove (1) a wrongful act, (2) imminent harm, (3) irreparable
injury, and (4) absence of an adequate remedy at law. See, e.g., Indian Beach
Prop. Owners Ass’n v. Linden, 222 S.W.3d 682, 690 (Tex. App.—Houston [1st
Dist.] 2007, no pet.). The standard of review is abuse of discretion. See
Operation Rescue-Nat’l v. Planned Parenthood of Houston and Se. Tex., Inc.,
975 S.W.2d 546, 560 (Tex. 1998); Synergy Ctr., Ltd. v. Lone Star Franchising,
Inc., 63 S.W.3d 561, 564 (Tex. App.—Austin 2001, no pet.). A trial court abuses
23 its discretion by granting an injunction when it misapplies the law to established
facts or when the evidence does not reasonably support the determination of the
existence of a probable right of recovery or probable injury. See Marketshare
Telecom, L.L.C. v. Ericsson, Inc., 198 S.W.3d 908, 916 (Tex. App.—Dallas 2006,
no pet.). Moreover, “a permanent injunction ‘must not grant relief which is not
prayed for nor be more comprehensive or restrictive than justified by the
pleadings, the evidence, and the usages of equity.’” Holubec v. Brandenberger,
111 S.W.3d 32, 39 (Tex. 2003) (quoting 6 L. Hamilton Lowe, Tex. Practice
Series: Remedies § 244 (2d ed. 1973)).
We hold that the trial court abused its discretion by including the
permanent injunction in the final order. Father’s pleadings did not include a
request for a permanent injunction, and the trial court at the start of the final
hearing denied Father’s request for a trial amendment that would have added a
request for a permanent injunction. See Falor v. Falor, 840 S.W.2d 683, 687
(Tex. App.—San Antonio 1992, no writ) (dissolving permanent injunction that
father not go near the mother except to exercise child visitation because mother
did not plead or prove necessity of permanent injunction). The permanent
injunction cannot stand in the absence of pleadings requesting that relief, the
granting of a trial amendment to add a request for permanent injunction, or trial of
the issue by consent. 6 See In re A.B.H., 266 S.W.3d 596, 599–601 (Tex. App.—
6 Father does not argue that the issues surrounding the permanent injunction were tried by consent.
24 Fort Worth 2008, no pet.) (holding trial court abused its discretion by appointing
father sole managing conservator in absence of pleading or trial by consent);
Falor, 840 S.W.2d at 687 (dissolving permanent injunction in absence of pleading
and proof); see also Tex. Fam. Code Ann. § 156.004 (West 2008) (“The Texas
Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a
suit for modification under this chapter.”); Tex. R. Civ. P. 301 (requiring that trial
court’s judgment conform to pleadings); Flowers v. Flowers, No. 14-11-00894-
CV, 2013 WL 3808156, at *3 (Tex. App.—Houston [14th Dist.] July 23, 2013, no
pet.) (holding trial court abused discretion by removing geographic restriction on
mother’s exclusive right to determine child’s primary residence in absence of
pleading requesting that relief or trial by consent); In re J.A.L., No. 02-10-00374-
CV, 2012 WL 858638, at *2–3 (Tex. App.—Fort Worth Mar. 15, 2012, no pet.)
(mem. op.) (holding trial court abused discretion by rendering default judgment
that modified conservatorship and child support because no pleading requested
that relief). We sustain Mother’s second issue and hold that the trial court
abused its discretion by including the permanent injunction in the final order. We
dissolve the permanent injunction and modify the final order to omit any
reference to the permanent injunction.
V. Custody Order
Mother contends in her third issue that the trial court abused its discretion
by rendering judgment on factually insufficient evidence. Mother specifically
challenges the portions of the trial court’s order that appointed Father as sole
25 managing conservator for Noelle and that limited Mother’s possession of Noelle
to supervised visitations on the first and third Saturdays of each month.
A. Standard of Review
We review the trial court’s decisions on custody, control, possession, and
visitation for an abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451
(Tex. 1982); Newell v. Newell, 349 S.W.3d 717, 720 (Tex. App.—Fort Worth
2011, no pet.). To determine whether a trial court abused its discretion, we must
decide whether the trial court acted without reference to any guiding rules or
principles; in other words, we must decide whether the act was 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). Factual sufficiency is not an
independent ground of error in this context, but it is a relevant factor in deciding
whether the trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872
(Tex. App.—Fort Worth 2002, pet. denied) (op. on reh’g). We first consider
whether the court had sufficient information upon which to exercise its discretion
and then determine whether it erred in its application of that discretion. See
Newell, 349 S.W.3d at 720–21. The best interest of the child is always the
primary consideration in determining the issues of conservatorship and
possession of and access to the child. Tex. Fam. Code Ann. § 153.002 (West
2008); see Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (listing
nonexhaustive factors that court may use to determine best interest).
26 B. Discussion
In part of her third issue, Mother discusses Dr. Greer’s expert testimony
about parental alienation syndrome. Mother argues that Dr. Greer’s testimony
should not have been admitted because Dr. Greer was not qualified to give that
testimony, because Dr. Greer’s testimony was inherently unreliable, and because
Father did not disclose in discovery that he would present evidence about
parental alienation syndrome. But Mother did not object to Dr. Greer’s
qualifications in the trial court. To the contrary, Mother stipulated that Dr. Greer
was qualified as an expert witness. She cannot therefore complain about Dr.
Greer’s qualifications on appeal. See Davis v. Jordan, 305 S.W.3d 895, 899–900
(Tex. App.—Amarillo 2010, no pet.) (holding challenge to expert qualifications
and reliability of underlying experiment not preserved when expert’s reports
admitted at trial without objection); Harris Cnty. Appraisal Dist. v. Kempwood
Plaza, Ltd., 186 S.W.3d 155, 158 (Tex. App.—Houston [1st Dist.] 2006, no pet.)
(holding challenge to expert qualifications not reviewable on appeal due to
stipulation to qualifications at trial); Marin v. Herron, No. 04-11-00352-CV, 2012
WL 3205427, at *4 (Tex. App.—San Antonio Aug. 8, 2012, no pet.) (mem. op.)
(holding complaints concerning witness qualification waived by failure to object in
trial court). Mother also did not object in the trial court to the reliability of Dr.
Greer’s testimony or to Father’s alleged failure to disclose the subject matter of
Dr. Greer’s testimony in discovery, meaning she has also not preserved those
complaints for appeal. See Damian v. Bell Helicopter Textron, Inc., 352 S.W.3d
27 124, 146 (Tex. App.—Fort Worth 2011, pet. denied) (“‘To preserve a complaint
that an expert’s testimony is unreliable, a party must object to the testimony
before trial or when it is offered.’”) (quoting Guadalupe–Blanco River Auth. v.
Kraft, 77 S.W.3d 805, 807 (Tex. 2002)); see also Tex. R. App. P. 33.1(a)
(requiring timely objection and ruling from trial court as prerequisite to complaint
on appeal); Aluminum Chems. (Bolivia), Inc. v. Bechtel Corp., 28 S.W.3d 64, 69
(Tex. App.—Texarkana 2000, no pet.) (holding defendants failed to preserve
complaint about testimony on previously undisclosed theory of liability when
objection first made after theory already introduced into evidence). We thus
decline to exclude Dr. Greer’s testimony from consideration in this appeal.
In the third part of her third issue, Mother argues that the trial court failed to
consider a social study report prepared by Anne M. Scaggs in October 2009. But
Father filed a motion to exclude any evidence from Scaggs on the ground that
Scaggs was not licensed to conduct social studies, and the trial court ruled at a
hearing in March 2010—approximately eighteen months before the final
hearing—that Scaggs could not testify as an expert witness, that Scaggs’s social
study would be excluded from evidence, but that Scaggs could testify at the final
hearing as a fact witness. Mother did not call Scaggs as a witness during the
final hearing, nor did Mother ask the trial court to reconsider the exclusion of
Scaggs’s social study report. Family code section 107.0551(d)(1) clearly
requires that the individual conducting a social study be “license[d] to practice in
this state as a social worker, professional counselor, marriage and family
28 therapist, or psychologist.” Tex. Fam. Code Ann. § 107.0511(d)(1) (West Supp.
2012). We therefore cannot hold that the trial court abused its discretion by
excluding or not considering the social study prepared by the unlicensed expert.
See id. See generally Prellwitz v. Cromwell, Truemper, Levy, Parker &
Woodsmale, Inc., 802 S.W.2d 316, 317–18 (Tex. App.—Dallas 1990, no writ)
(holding trial court did not abuse discretion by excluding testimony from
unlicensed expert). This is not to say that an expert must always have a license
to be qualified to testify, see Southland Lloyd’s Ins. Co. v. Tomberlain, 919
S.W.2d 822, 827 (Tex. App.—Texarkana 1996, writ denied), but the applicable
statute in this case requires that the person preparing the social study be
licensed. See Tex. Fam. Code Ann. § 107.0511(d)(1). We overrule this portion
of Mother’s third issue.
In the remainder of her third issue, Mother challenges the sufficiency of the
evidence to support the trial court’s modifications. She discusses the evidence
presented at trial and primarily highlights the evidence relating to Nelson’s
behavioral problems and the problems in the relationships between Mother and
Nelson, Father and Nelson, and Nelson and Noelle. Mother contends that the
animosity between the parties and their children “subsided tremendously” during
the fourteen months that Nelson had lived with Father and that Noelle had lived
29 with Mother. Mother also argues that the majority of the trial court’s findings of
fact and conclusions of law are not based on sufficient evidence. 7
We first consider whether the court had sufficient information upon which
to exercise its discretion. See id.; see also Newell, 349 S.W.3d at 720–21. The
trial court heard testimony by Dr. Milburn, Dr. Greer, Cutting, Father, and Mother.
The expert witnesses offered their opinions and testified that they had conducted
interviews with Mother, Father, Nelson, and Noelle; that they had conducted
psychological testing; and that they had reviewed documents related to the case
and the parties’ visits with other experts. The trial court did not interview Noelle
in chambers but learned from Dr. Greer’s testimony that, as of February 2011,
Noelle did not want to live primarily with Father. Outside of Mother’s request that
the trial court interview Noelle, neither Father nor Mother suggested during the
final hearing that the trial court needed additional information or evidence before
it could render a decision in the case. Under these circumstances, we hold that
the trial court had sufficient information upon which to exercise its discretion.
Concerning the trial court’s exercise of discretion based on the available
evidence, we do not repeat the evidence at length here. But from the evidence
described above, the strain between Mother and Nelson is obvious, and the
7 Although Mother occasionally mentions there being “no evidence” to support certain findings, she frames her third issue as challenging the factual sufficiency of the evidence and seeks remand for a new trial on conservatorship and possession. As stated above, factual sufficiency is not an independent ground of error in this context, but it is a relevant factor in deciding whether the trial court abused its discretion. See T.D.C., 91 S.W.3d at 872.
30 experts testified that many of Nelson’s adolescent issues arise from his
relationship with Mother. Dr. Milburn testified that she could not directly answer
whether similar problems would occur between Mother and Noelle but that it was
possible in part because past behavior is the best predictor of future behavior.
Dr. Greer testified that Noelle’s relationship with Mother could deteriorate in the
future if she seeks independence from Mother and that Mother’s having cut off
contact with Nelson had harmed Noelle.
The trial court also heard evidence that Mother had not been honest with
the court-appointed experts, had manipulated information to present it in the best
possible light, and had possibly fabricated a sexual molestation allegation against
Nelson. The experts also testified about Mother’s alienating behavior, her
enmeshed relationship with Noelle, and how the children were caught in the
middle of the conflict between Mother and Father. They also described how
Mother’s conduct and the ongoing conflict could affect the relationship between
Noelle and Father.
Dr. Greer testified that Father was “not without fault in the case” but that he
always seemed to follow through on her recommendations, even when he
disagreed with them. Dr. Greer expressed concern with Mother’s ability to raise
Noelle in a way that would support a relationship between the children and
Father and testified that Mother was “very resistant” to include Father in things
involving the children. Dr. Greer also opined that Mother and Father would not
31 be able to agree on issues relating to the children and that Father would be
better suited to make those decisions in the future.
Although much of the evidence presented at the final hearing was
conflicting, we hold that the trial court did not abuse its discretion by removing
Mother as one of Noelle’s joint managing conservators, by appointing Father as
Noelle’s sole managing conservator, and by limiting Mother’s possession of
Noelle to supervised visitation on the first and third Saturdays of each month.
The trial courts’ resolution largely tracks the opinions expressed by the experts in
their testimony, and the trial court was within its discretion to follow those
recommendations. See In re S.E.K., 294 S.W.3d 926, 928, 929–30 (Tex. App.—
Dallas 2009, pet. denied) (holding trial court within its discretion to appoint father
sole managing conservator and grant mother only supervised visitation with child
and noting alienating conduct by mother); Allen v. Mancini, 170 S.W.3d 167,
170–71 (Tex. App.—Eastland 2005, pet. denied) (discussing mother’s conduct
and holding evidence supported modification of conservatorship and
possession); see also Silverman v. Johnson, No. 03-08-00271-CV, 2009 WL
2902716, at *7 (Tex. App.—Austin Aug. 26, 2009, no pet.) (mem. op) (noting
conflicting evidence, mentioning father’s alienating behavior, and holding trial
court did not abuse discretion by restricting father’s visitation and access to
child). We hold that the trial court had sufficient information available upon which
to exercise its discretion and did not err in the application of its discretion by
32 determining that these changes were necessary and in Noelle’s best interest.
We overrule Mother’s third issue.
VI. Conclusion
Having overruled Mother’s first and third issues and having sustained
Mother’s second issue, we dissolve the permanent injunction and modify the trial
court’s final order to omit the permanent injunction. We affirm the final order as
modified.
ANNE GARDNER JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GARDNER, JJ.
DELIVERED: September 19, 2013