Opinion
05-20-00695-CV
04-25-2022
IN THE INTEREST OF J.N., L.N., K.N., and M.N., CHILDREN
On Appeal from the 302nd Judicial District Court Dallas County, Texas Trial Court Cause No. DF-17-19715
Before Justices Reichek, Nowell, and Carlyle Opinion by Justice Reichek
MEMORANDUM OPINION
AMANDA L. REICHEK JUSTICE
In this appeal arising out of a divorce proceeding, appellant ("Mother") challenges the trial court's failure to (1) interview the eldest of the four children of the marriage in-chambers and (2) consider evidence that appellee ("Father") was physically abusive. After reviewing the record, and for the reasons set forth below, we affirm the trial court's judgment.
Background
Mother and Father married in 2003 and had four children. The couple separated in April 2017, and on October 3, 2017, Father filed for divorce. Following a hearing before an associate judge to set temporary orders, Father and Mother were appointed joint managing conservators and Father was given the exclusive right to designate the primary residence of the four children. Mother appealed the associate judge's ruling to the trial court and the court confirmed the associate judge's order.
A final bench trial was conducted on May 6, 2019. Mother requested the trial court interview the eldest child of the marriage, M.N., in-chambers to determine her preference regarding with whom she would live, but the court refused the request. Nearly one year later, on April 28, 2020, the trial court signed a final divorce decree naming Mother and Father as joint managing conservators of the children and granting Father the exclusive right to determine the children's primary residence. Mother then brought this appeal challenging the conservatorship decision.
Analysis
I. Section 153.004
We begin with Mother's second issue in which she contends the trial court erred in failing to consider evidence of physical abuse when deciding the matter of conservatorship. The trial court is given wide latitude in determining custody issues. Burns v. Burns, 116 S.W.3d 916, 920 (Tex. App.-Dallas 2003, no pet). Where, as here, the record contains no findings of fact and conclusions of law, all necessary findings of fact to support the trial court's judgment are implied. Id. In a non-jury trial, "every reasonable inference and intendment supported by the record will be drawn in favor of the trial court's judgment." Id.
Although Mother requested findings of fact and conclusions of law, her request was untimely and she has waived her ability to complain on appeal about the absence of findings and conclusions. Am. Realty Tr., Inc. v. JDN Real Estate - McKinney, L.P., 74 S.W.3d 527, 530 (Tex. App.-Dallas 2002, pet. denied).
Mother relies on section 153.004 of the Texas Family Code to argue the trial court had no discretion to appoint her and Father as joint managing conservators of the children because she presented credible evidence of a history or pattern of physical abuse committed by Father. Mother further argues that, based on the evidence of abuse she presented, the trial court erred in appointing Father as the conservator with the exclusive right to determine the children's primary residence.
Section 153.004(b) states,
The court may not appoint joint managing conservators if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by one parent directed against another parent, a spouse, or a child . . . . It is a rebuttable presumption that the appointment of a parent . . . as the conservator who has the exclusive right to determine the primary residence of a child is not in the best interest of the child if credible evidence is presented of a history or pattern of past or present child neglect, or physical or sexual abuse by that parent directed against the other parent, a spouse, or a child.Tex. Fam. Code Ann. § 153.004(b). As the sole judge of the weight and credibility of the evidence, the finder of fact has broad discretion to determine what constitutes credible evidence of a history or pattern of physical abuse. See Alexander v. Rogers, 247 S.W.3d 757, 764 (Tex. App.-Dallas 2008, no pet.); Coleman v. Coleman, 109 S.W.3d 108, 111 (Tex. App.-Austin 2003, no pet.). "The trial court is in a better position to determine what will be in the best interest of the children since it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent." Coleman, 109 S.W.3d at 111. The court's judgment will not be disturbed on appeal unless there has been a clear abuse of discretion. Id.
Mother points to testimony she gave at trial about three alleged episodes of abuse to support her argument that she presented credible evidence of a history or pattern of physical abuse by Father. Mother first testified that Father became irate after she "messed up" a home improvement project and he threw a small bookcase at her. She stated Father then slammed the bookcase at her bare feet. When asked if she was injured, Mother replied she was not. Mother was then asked if Father's actions scared her, and she replied, "It broke my heart."
Mother next testified that friends witnessed Father yelling at her and "confining [her] to an area." Mother stated that "these sorts of things started happening almost constantly."
Finally, Mother testified that, as she was moving out of the house with the children, Father came out to the car carrying her gun and "offered" it to her. Mother conceded that Father did not threaten her with the gun and stated only, "Don't you want to take your gun with you?" When asked if that statement was scary to her, she responded, "It was the scariest moment of my life."
Mother argues that, because Father did not deny these incidents at trial, the court was required to find she had presented credible evidence of abuse. Although Father did not testify about the episodes alleged by Mother, the record shows Father was not asked about them. Prior to Father testifying, Mother had made no allegations in her pleadings of family violence or physical abuse and Father was called as a witness before Mother testified. But while Father did not directly contradict Mother's testimony at trial, he presented other evidence concerning Mother's accusations and her credibility.
Father called Christopher Bouchard, a Dallas County family court counselor, as a witness at trial. Pursuant to a court order, Bouchard prepared a child custody evaluation in the case. The report prepared by Bouchard discussed the bookcase incident and stated that Father denied he slammed or threw a bookcase at Mother. Instead, Father stated he accidently set a bookshelf down on Mother's feet while they were moving furniture. Father said Mother then began hitting him and, when he grabbed her wrists to try to restrain her, she bit him and ran out of the house.
Bouchard testified he spoke with the children and reviewed various documents related to the family, including mental health records for both Mother and Father. Bouchard stated he was concerned after his interviews with the children that Mother was using allegations of abuse to influence how the children felt about Father. One of the children indicated Mother had given him suggestions of things to say in his interview with Bouchard.
With respect to the mental health records, Bouchard testified he reviewed a report from Dr. Tim Young, a marital therapist that worked with both Mother and Father for over two years. Dr. Young stated Mother consistently reported Father was "unstable, unsafe, and angry." But Young "[did] not share the mother's assessment and could not find any other person who corroborated the mother's assessment but instead found the mother to have pronounced problematic behavior." Bouchard recommended that Mother and Father remain as joint managing conservators with Father retaining the exclusive right to determine the children's primary residence.
Father also called Mother's mother, S.M., to testify at trial. S.M. stated she had no concerns about Father caring for the children. She acknowledged that Mother had made allegations of abuse but said the allegations did not begin until Mother and Father separated. According to S.M., Mother had a problem with prescription medications and needed "rehab."
There is nothing in the record to show the trial court did not consider Mother's testimony about Father's alleged actions. See Burns, 116 S.W3d at 921 (implicit in trial court's judgment is finding there was no credible evidence of history or pattern of abuse) But Mother's testimony had to be weighed against the other evidence presented As courts have noted, family violence allegations are frequently utilized as leverage in contested custody disputes, and what constitutes abuse remains subject to varying interpretations See Gonzalez v Gonzalez, No 08-01-00453-CV, 2004 WL 1178898, at *6 (Tex App-El Paso, May 27, 2004, no pet) (mem op) (McClure, J, concurring). It was within the trial court's discretion to determine that Mother's testimony, even if true, did not present credible evidence of a history or pattern of physical abuse. See id. at *4 (trial court may determine that uncontroverted testimony does not present credible evidence of history or pattern of abuse); see also Lowth v. Lowth, No. 14-03-00061-CV, 2003 WL 22996939, at *6 (Tex. App.-Houston [14th Dist.] Dec. 23, 2003, pet. denied) (mem. op.) (trial court could reasonably conclude uncontroverted evidence of one "looming" incident, two pushing incidents, and one incident of father threatening mother did not rise to level of history or pattern of abuse); Jackson v. Jackson, No. 05-01-01719-CV, 2002 WL 31513388, at *1 (Tex. App.-Dallas Nov. 13, 2002, no pet.) (mem. op., not designated for publication) (trial court had discretion to determine uncontroverted evidence father "pushed or shoved" mother several times was not credible evidence of history or pattern of abuse). Evidence of "altercations and confrontations" will not automatically prevent the trial court from appointing parents as joint managing conservators. See In re T.G., No. 05-12-00460-CV, 2013 WL 3154975, at *8 (Tex. App.-Dallas June 19, 2013, no pet.) (mem. op.).
In addition to her trial testimony, Mother relies on an affidavit she filed in support of an ex parte application for a protective order filed several months after trial concluded, but before the trial court rendered judgment. In the affidavit, Mother alleged various acts of family violence committed by Father including his use of guns in the presence of the children. The same day, Father filed a petition for writ of habeas corpus asserting Mother was refusing to turn over possession of the children as required by the temporary orders.
In her reply brief, Mother also makes a general reference to "evidence in multiple hearings prior to the final trial" without citing any evidence in the record. Evidence from prior hearings for temporary orders that is not reintroduced at trial may not be considered by the trial court in rendering its final orders, nor by this Court in reviewing the trial court's final order. In re M.D.B., 344 S.W.3d 1, 3 (Tex. App.-Texarkana 2011, no pet.).
The record shows Mother's application and Father's petition were heard by an associate judge. Following the hearing, the associate judge ordered Father to turn over all his firearms to his attorney, but denied Mother's request for a protective order. Mother was ordered to turn over the children to Father by 6 p.m. that evening. No reporter's record from the hearing before the associate judge was filed in this Court.
Mother then appealed the denial of her application for a protective order to the trial court. At the de novo hearing on the appeal, Mother's counsel focused mainly on Mother's request that the court interview M.N. in-chambers; no evidence was presented. The trial court confirmed the associate judge's order and denied Mother's request for a protective order.
Based on the record before us, we cannot conclude the trial court erred in determining there was no credible evidence of a history or pattern of abuse and in appointing Mother and Father as joint managing conservators with Father having the exclusive right to determine the children's primary residence. We resolve Mother's second issue against her.
II. Section 153.009(a)
In her first issue, Mother contends the trial court erred in failing to conduct an in-chambers interview with M.N., who was thirteen years old at the time of trial. Section 153.009(a) of the Texas Family Code 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 . . . 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). The local rules for the 302nd Judicial District Court, where this case was tried, state the "Judge will conduct [an] interview if required, but only after completion of all other testimony, and only after scheduling the interview in advance . . . ."
In this case, Father filed a motion more than a year before trial requesting the judge confer with the children. Approximately two months after the motion was filed, Mother filed a jury demand, making Father's section 153.009 request inapplicable. Shortly before trial was scheduled to occur, however, Mother withdrew her request for a jury and immediately began attempting to schedule an in-chambers interview for M.N.
On May 1, 2019, Mother's counsel sent a letter to the trial court's court coordinator stating,
Please accept this letter as my formal written request to schedule [M.N.], a child subject to this suit over the age of 12, to confer with the Judge in chambers in accordance with the posted 302nd Policies and Procedures.
A motion for the children to confer with the Judge was filed on or about December 6, 2017. This case was previously set for a jury trial however the parties waived the jury setting at the pretrial conference. This request is made in accordance with Sec. 153.009(a) of the Texas Family Code.
This matter is set for final hearing on Monday, May 6, 2019 at 9:00 a.m. Per the court's rules it appears that the Judge's interview with the child shall take place following the completion of all other testimony and it is required that the interview be scheduled. Please let me know what time we will need to have the child available for conference with the Judge.
At trial five days later, counsel for Mother again requested the court interview M.N. in chambers. Counsel explained, and Mother later testified, that Mother had withdrawn her jury demand solely to trigger the requirement that the trial court interview M.N. The court refused to conduct the interview stating that Mother had failed to file a written motion and she could not urge the motion filed by Father.
On June 3, 2019, Mother filed a "Brief in support of Texas Family Code §153.009: Interview with a Child in Chambers." In her brief, Mother explained that, in accordance with the trial court's written policies, she had attempted to schedule an interview with M.N. to be conducted after completion of the testimony. These attempts included approximately twenty phone calls and an email to the court coordinator. Mother believed it was in her daughter's best interest to "have a voice in where she lives."
Several weeks later, Mother filed a "Motion for Judge to Confer with Children and Joinder of Petitioner's Motion to Confer." The motion stated it was a written request intended as "an enforcement of the verbal request" made by Mother's counsel during trial. The trial court signed the final divorce decree one year later without having conducted an interview with M.N.
The stated basis for the trial court's denial of Mother's request for an in-chambers interview was that she had not filed her own motion prior to trial. However, section 153.009(a) does not require a formal motion. Nor does it distinguish between an oral or written application. See In re C.B., No. 13-11-00472-CV, 2012 WL 3139866, at *6 (Tex. App.-Corpus Christi-Edinburg Aug. 2, 2012, no pet.) (mem. op.) (oral request at close of evidence sufficient application); see also Bynum v. Shatto, 514 S.W.2d 808, 811 (Tex. App.-Corpus Christi 1974, writ ref'd n.r.e.) (oral motion sufficient where rule does not require it be in writing). In this case, Mother made numerous attempts before trial to schedule an interview for M.N. Even assuming her written request to the court coordinator was insufficient by itself to constitute an application, Mother's counsel made a clear verbal application for an interview at the beginning of trial and filed written applications before the trial court rendered judgment. We conclude this was sufficient to trigger the trial court's mandatory duty to interview M.N. See In re C.B., 2012 WL 3139866, at *6.
Father relies on In re S.L.L., No. 09-09-00429-CV, 2011 WL 1224983, at *5 (Tex. App.- Beaumont Mar. 31, 2011, pet. denied) (mem. op.), which suggests the trial court has discretion to deny a request for an in-camera interview of a child twelve years of age or older where the application is made verbally. In reaching this conclusion, the court relied on Hamilton v. Hamilton, 592 S.W.2d 87, 88 (Tex. App.-Fort Worth 1979, no writ). In Hamilton, however, there was no record of an oral motion to interview the children other than vague and conflicting testimony at a hearing on the mother's motion for new trial. Id. The court held that, although section 153.009(a) imposes a mandatory duty on the trial court to conduct an interview, the mother failed to show error because the record was "devoid of anything that could be construed as an application." Id. We do not read Hamilton as standing for the proposition that the trial court has discretion to deny a clear application to conduct a mandatory in-camera interview with a child simply because the application is verbal. To the extent In re S.L.L. suggests otherwise, we disagree. See In re C.B., 2012 WL 3139866, at *6.
Despite the fact that section 153.009(a) imposes a mandatory duty, the trial court's failure to conduct the required interview is subject to a harm analysis. See Tex. R. App. P. 44.1; In re C.B., 2012 WL 3139866, at *6; see also In re D.I.B., 988 S.W.2d 753, 757-59 (Tex. 1999) (harm analysis should be performed even when statute is mandatory). The sole matter made the subject of the mandatory interview is the child's wishes as to conservatorship and primary residence. See Tex. Fam. Code Ann. § 153.009(a). Subsection (c) of section 153.009 provides that "interviewing a child does not diminish the discretion of the trial court in determining the best interests of the child." Id. § 153.009(c). Accordingly, even if M.N. had expressed a preference to live with Mother, as Mother suggests she would have done, the trial court would not have been obligated to make a different conservatorship decision.
In this case, M.N. is one of four children of the marriage. "There is a long line of jurisprudence in Texas supporting a preference that two or more children of a marriage should not be divided absent clear and compelling reasons." Coleman, 109 S.W.3d at 112. This preference was codified by the legislature in section 153.251(c) of the Texas Family Code. Tex. Fam. Code Ann. § 153.251(c) ("It is preferable for all children to be together during periods of possession.").
The court-appointed counselor who prepared the child custody evaluation opined it was in the best interest of all the children that Father be granted the exclusive right to determine their primary residence. This opinion was based in part on his interviews with the children and a review of records from Mother and Father's marital therapist, Dr. Young. Dr. Young counselled Mother and Father for two years, and it was his impression that Father's parenting skills were "quite good, despite reports by his wife to the contrary." In comparison, Dr. Young stated he found Mother's parenting skills were "compromised by her own instability and agitation." This evidence strongly supports the trial court's decision to have the children primarily reside with Father.
Mother again relies on her affidavit in support of her request for an ex parte protective order to urge the importance of the in-camera interview. As discussed above, both the associate judge and the trial judge determined Mother's application was without merit and denied her request for a protective order.
The purpose of the mandatory in-camera interview is to allow an older child to express a preference regarding with whom they will live. In this case, even if M.N. expressed a desire to live with Mother, we cannot say that alone would present a clear and compelling reason to separate her from her siblings. See Coleman, 109 S.W.3d at 112. Accordingly, we conclude the trial court's failure to conduct the in-camera interview in this case was harmless.
Based on the foregoing, we affirm the trial court's judgment.
Carlyle, J., concurring in part and dissenting in part.
JUDGMENT
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
It is ORDERED that appellee JOHN H. NEWTON recover his costs of this appeal from appellant MICHELLE A. NEWTON.
CONCURRING AND DISSENTING OPINION
CORY L. CARLYLE, JUSTICE
At least in part, Family Code § 153.009 exists because the legislature has determined that children over age 12 have a voice worthy of consideration in custody matters, and it has directed the trial courts to allow them to use that voice. Although I agree with my colleagues' discussion and conclusion regarding the application's sufficiency here, I would hold that violating the section's interview requirement is not subject to a harm analysis on appeal, and I would make our ruling nonretroactive. I respectfully dissent from the panel's decision to perform a harm analysis, and would reverse.
I do not disagree with the majority that ample evidence supports the trial court's ultimate custody determination, and the trial court may very well have acted rationally in declining to interview the child on the basis that the interview would not likely affect the trial court's decision as to Mother.
As an initial matter, we have no direct guidance from the supreme court on this issue. The majority fills that void by citing to a juvenile criminal case as support for using a harm analysis here. See slip op. at 12 (discussing In re D.I.B., 988 S.W.2d 753, 757-59 (Tex. 1999)). In D.I.B., the supreme court held that a trial court's failure to follow a statute-requiring a juvenile court to explain that the record of adjudication in that proceeding may be used in the punishment phase of a future criminal proceeding-was subject to a harm analysis. In re D.I.B., 988 S.W.2d at 757-59 (citing Tex. Fam. Code § 54.03(b)(2)). The court began its analysis by moving its focus towards criminal law, noting that "[j]uvenile proceedings are quasi-criminal in nature." Id. at 756.
With an appropriate criminal-law focus, the court then relied on numerous court of criminal appeals precedents concluding that the failure to give certain admonishments in adult guilty plea proceedings was subject to harm analysis. And this makes a lot of sense. The question in D.I.B. was whether the failure to give a required admonishment was something a harm analysis could meaningfully address. In that case, D.I.B. had pled "not true" to murder, exercised the right to a jury trial, presented a defense, and was found guilty by a jury. That record gave the supreme court "no indication" that had the court admonished D.I.B. of the future potential uses of the record of adjudication, "she would have been able to avoid an adjudication of delinquency," that she "was offered and would have accepted" a plea agreement, or that without the admonishment, she was not fully apprised of the consequences of refusing the plea offer. Id. at 759. This follows from the common notion that the failure to give every statutorily required guilty plea admonishment in criminal cases can be saved by a harm analysis. Id. at 757.
But contrary to the family code section at issue here, the criminal code itself includes a harmless error provision, stating that a trial court's "substantial compliance" is sufficient "unless the defendant affirmatively shows that he was not aware of the consequences of his plea or that he was misled or harmed by the admonishment of the court." Tex. Code Crim. Proc. art. 26.13(c).
In contrast, § 153.009(c) says the child's statement does not diminish the trial court's exercise of discretion in making its ultimate conclusion. We are bound to consider words and phrases in context and within the statute as a whole so that no provision is rendered meaningless or mere surplusage. See TIC Energy & Chem., Inc. v. Martin, 498 S.W.3d 68, 74 (Tex. 2016). To approve using a harm analysis on appeal when a trial court fails to comply with the child interview portion of § 153.009(a) renders subsection (c) meaningless. If the court hasn't interviewed the child, there's no need for a subsection stating that the child's statements do not reduce its discretion. In effect, the legislature has instructed both us and the trial court that an interview must take place even if a child's statement would not influence the trial court's decision. Thus, in this circumstance, by concluding the appellate rules require a harm analysis, we render the subsection (c) guarantee meaningless surplusage.
Moreover, the legislature knows how to save a potentially void order for a trial court's failure to follow a mandatory statute in the family-law context. Family Code § 263.302, governing permanency hearings, says the "child shall attend each permanency hearing unless the court specifically excuses the child's attendance" and that court "shall consult with the child in a developmentally appropriate manner regarding the child's permanency plan." But that statute concludes, "Failure by the child to attend a hearing does not affect the validity of an order rendered at the hearing." We have no such saving language here.
Further, the guarantee at issue here is to a child in a proceeding to decide that child's primary home. When the law promises things to children, we should honor those promises. I can't help but imagine a 13-year-old child whose world is already upending due to her parents' divorce. She hears from the lawyer: if you want to speak to the judge, the judge has to listen to you. And no, you don't have to do it in open court, the legislature has created this mandatory procedure for you to connect directly with the judge. In some children, this must create a certain sense of optimism and relief, and in any child (even those who choose not to speak), it fosters the idea that the system respects the child's voice at this difficult time. Notably, the seminal case on ascertaining a child's best interests, Holley v. Adams, 544 S.W.2d 367, 371- 72 (Tex. 1976), lists "the desires of the child" first among the nine non-exclusive factors. In my view, this statute plays a unique role in our system of laws, and declining to perform the harm analysis helps, however little, to foster children's trusting the courts from their likely earliest interactions.
I come to this conclusion with open eyes that these child testimony statutes have been subject to intense debate around the country and that thought leaders in the field question whether these statutes are good for children. See Debra Lehrmann, The Child's Voice, An Analysis of the Methodology Used to Involve Children in Custody Litigation, 65 Tex. B.J. 882 (Nov. 2002). Texas Supreme Court Justice (and then-trial judge) Lehrmann recognized this debate and noted in this excellent 2002 article that trial judges who decline a child's stated preference should make time to discuss the decision with the child after the court makes its orders to provide proper closure and to give appropriate perspective to the child. Id. at 889. But the legislature made the determination that children have a voice in court in this situation, and we in the appellate courts are duty bound to continue the child-centric focus of this area of the law.
Of note, § 153.009 is not limited to the typical divorce context: perhaps the trial court is faced with awarding nonparents conservatorship, see Fam. Code §§ 153.371-.377, or when both parents are deceased and grandparents, aunts, or uncles are in the conservatorship mix, see id. §§ 153.431-.434. We would not want a different § 153.009 appellate review rule for these situations, when performing a harm analysis could be exceptionally complicated without the substance of the child's wishes.
And so, when the focus of the proceeding is the best interests of the child, see Fam. Code § 153.002, and when a statute requires the judge to allow the child to present her statement on a pivotal issue in the case, refusing to allow the child to do so implicates the core of the proceeding and the core of reliance interests the legislature created for the children of this state. Given that, I believe a harm analysis is inappropriate.
Finally, if this Court is to undertake a proper harm analysis, it must be able to consider what the child said or would have said. See Tex. R. App. P. 44.1(a)(2) (prohibiting reversal for legal error unless court of appeals "concludes that the error . . . probably prevented the appellant from properly presenting the case to the court of appeals"). Because the record does not indicate what the child would have said, we cannot perform a proper harm analysis. As noted, Holley factor number one is "the desires of the child." 544 S.W.2d at 372. There is a greater-than-zero number of statements the child could have made in the interview to cause the trial court to think differently about the evidence before it. Yet, an appellant cannot point to those statements in the record. And thus, at the very least, the trial court's refusal to hear from the child has "probably prevented the appellant from properly presenting the case to the court of appeals." Tex.R.App.P. 44.1(a)(2).
Perhaps, in this vein, if the party petitioning for the over 12-year-old to testify had made a bill of exception or offer of proof, where the child outlined the testimony she would have given the judge, we could be in a different spot. This is the approach several sister courts have suggested could resolve the matter. See In re C.S., No. 04-20-00421-CV, 2021 WL 5496159, at *1-4 (Tex. App.-San Antonio Nov. 24, 2021, no pet.) (mem. op.); In re T.A.L., Nos. 07-17-00274, 00275-CV, 2018 WL 3862994, at *3 (Tex. App.-Amarillo Aug. 14, 2018, pet. denied) (mem. op.); In re A.S., No. 11-14-00154-CV, 2015 WL 582013, at *4 (Tex. App.-Eastland Feb. 5, 2015, no pet.) (mem. op.); In re N.W., No. 02-12-00057-CV, 2013 WL 5302716, at *10 (Tex. App.-Fort Worth Sept. 19, 2013, no pet.) (mem. op.). But this method works counter to the purpose of having a child interview take place outside the parties' view and in chambers. The very nature of having a child speak directly to the judge is so the child speaks to the judge. Having a lawyer recount what the child has told the lawyer for an offer of proof lacks the potential depth a judge's interview with the child may have. See Lehrmann, 65 Tex. B.J. at 889. It also calls into question the accuracy of the offer, as it is entirely possible-if not probable-that what a child tells his or her parent's lawyer may not be the same as what the child might tell the judge in private. Nevertheless, if we required this error preservation, in my eyes a practice counter to § 153.009, and if the depth of the child's statement appeared in the record, we could more properly perform a harm analysis.
For this reason too, I am not swayed by the criminal harmless error precedent: appellate rule 44.2 allows for harmless error affirmance on different standards than rule 44.1 does, and we read the two rules separately. The existence of separate reversible error rules for criminal and civil cases leads me to the conclusion that we have different guidelines in civil and criminal cases, however slight. And in giving meaning to the existence of separate rules, their application may diverge in some cases. I view this as one of those cases, and for this reason as well, decline to rely on In re D.I.B.
Finally, one appellate court concluded that a trial court's failure to interview a child was harmless because the trial court stated it did not feel that the interview would be helpful, and it appeared to the appellate court that the trial court declined to do so "to avoid the child's unnecessary involvement in the proceeding." In re C.B., No. 13-11-00472-CV, 2012 WL 3139866, at *6 (Tex. App.-Corpus Christi- Edinburg Aug. 2, 2012, no pet.) (mem. op.). We do not have that indication here. Other courts have concluded an application was too late and thus the trial court could have concluded that the party applying for the interview had done so for the purpose of delay. See 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.); In re N.W., 2013 WL 5302716, at *10; Hamilton v. Hamilton, 592 SW.2d 87, 88 (Tex. App.-Fort Worth 1979, no writ). To those holdings, I note that the statute includes no timeliness provision, and I question whether an appellate court has authority to insert one.
* * *
We can avoid error-preservation, meaninglessness or surplusage, and, above all, clear statutory purpose problems by energizing the bright-line rule the legislature gave us. This is not an amorphous concept whose application could change from case to case, see In re M.S., 115 S.W.3d 534, 538-39 (Tex. 2003) (admitting judge's prior findings that party had violated judge's orders was harmless), but instead is subject to simple, mechanical application. I respectfully dissent from the holding that we should perform a harm analysis for a trial court's failure to interview a child after proper application pursuant to Family Code § 153.009.