Opinion
No. 03-10-00084-CV
Filed: October 12, 2010.
Appealed from the District Court of Travis County, 345th Judicial District, No. D-1-FM-08-004671, Honorable Jon N. Wisser, Judge Presiding.
Affirmed.
Before Justices PATTERSON, PEMBERTON, and HENSON.
MEMORANDUM OPINION
Appellant Sandra Lopez appeals the district court's modification order making Lopez, appellee Paul Rendsland, and appellees Ann and Dan Rendsland, Rendsland's parents, joint managing conservators of Lopez's and Rendsland's son, U.R., and giving the grandparents the exclusive right to designate U.R.'s primary residence. In two issues, Lopez contends that (i) the evidence was legally and factually insufficient to support the district court's findings that U.R.'s present custodial circumstances impair his health and emotional development and that naming Lopez as managing conservator would significantly impair his health and emotional development; and (ii) the district court erred in determining that the grandparents overcame the parental presumption that it is in the best interest of the child for the parents to be appointed joint managing conservators. For the following reasons, we affirm the district court's judgment.
We refer to Paul Rendsland as "Rendsland," Ann and Dan Rendsland as "the grandparents," and all three jointly as "the Rendslands."
In her reply brief, Lopez urges three issues not presented in her appellant's brief. We do not reach those issues or consider any arguments in her reply brief that go beyond addressing matters contained in appellees' brief. See Tex. R. App. P. 38.3.
FACTUAL AND PROCEDURAL BACKGROUND
Lopez and Rendsland met in 1996 but were never married and resided together only briefly. They separated shortly before or soon after U.R. was born in 1997. Lopez and U.R. lived with the grandparents for a brief time immediately after U.R. was born and, after they moved out, the grandparents kept in touch with Lopez and visited U.R. once or twice a year. In 1999, Lopez and Rendsland agreed to an order establishing Rendsland as the child's biological father and appointing Lopez managing conservator. Rendsland was named possessory conservator and remained involved to some degree in U.R.'s life.
Soon after his birth, U.R. was diagnosed with Mosaic Down's Syndrome. After his diagnosis, Lopez obtained intervention services for U.R., and he continued to receive language and speech evaluations and therapy prior to the parties' dispute. After U.R. was designated as having a speech impairment, he received special education services for a time. In April 2008, Lopez removed U.R. from school with the intent to home school him, but at some point prior to January 2009, she returned him to public school. In May 2009, Lopez removed U.R. from special education.
The Parties' Dispute
Disputes arose between the parties concerning Lopez's care of U.R., including his medical treatment and his schooling. In June 2008, Rendsland filed a Petition to Modify the Parent-Child Relationship in Bexar County, where the 1999 order was entered. The district court entered temporary orders making Rendsland and Lopez joint managing conservators, with Lopez as primary conservator. Rendsland also sought a transfer of venue to Travis County, which the district court granted. Around the same time, the grandparents filed a petition in Travis County asking to be made joint managing conservators with Rendsland and to be given the exclusive right to designate the primary residence of U.R. The grandparents subsequently entered an appearance in Rendsland's action.
In January 2009, the district court entered temporary orders prohibiting U.R. from being withdrawn from school or moved from his present residence, ordering the grandparents to arrange all medical and educational evaluations they deemed in the child's best interest, and appointing a guardian ad litem for the limited purposes of overseeing the evaluation process. After some delay and scheduling difficulties among the parties, the district court ordered that an initial developmental evaluation be performed by Dr. Alma Del Angel of Dell Children's Medical Center in Austin. Dr. Del Angel performed the evaluation on June 3, 2009, and referred U.R. to a number of specialists for specific evaluations. One of the referrals was to Dr. Jennifer Trapani, a pediatric psychologist. Dr. Trapani conducted a two-day evaluation of U.R., prepared a written report, and subsequently began counseling sessions with him in Austin.
The Trial
In a two-day trial, the court heard the testimony of 12 witnesses, among them Lopez, Rendsland, Ann Rendsland, and Dr. Trapani, and considered documentary evidence, including the written report of Dr. Trapani and a "life plan" put together by the grandparents. The primary factual disputes concerned U.R.'s medical and emotional needs and the parties' respective abilities to meet his needs. Lopez and Rendsland testified concerning their relationship and U.R.'s relationship with Rendsland and with the grandparents. Lopez and Rendsland offered conflicting testimony regarding the degree of Rendsland's involvement in U.R.'s life, but it was undisputed that U.R. had always lived with Lopez and that she had raised him largely on her own for the first twelve years of his life without the benefit of consistent child support payments from Rendsland. It was also undisputed that U.R. had a large family support system while living with his mother, including his maternal grandmother, aunt, and several cousins, and that during periods of visitation with his father, Rendsland frequently took U.R. to visit the grandparents.
Other witnesses who testified included other family members, school personnel, U.R.'s primary care physician, and the guardian ad litem, whose only role was to oversee the evaluations.
Lopez testified that U.R. is a "very smart, bright child," who "does everything a normal child would do." She stated that she had explored options regarding his Mosaic Downs Syndrome and had talked to his primary care physician about other specialists he could see. She denied opposing the court-ordered evaluations and U.R.'s counseling sessions with Dr. Trapani and stated that she "always thinks[s] of [U.R.] first" and "tried [her] best" to make most of the court-ordered medical appointments.
In addition to testifying concerning his relationship with his son, Rendsland testified about his interactions with Lopez regarding U.R.'s medical evaluations and treatment. He stated that he supports U.R.'s counseling and tried unsuccessfully to engage Lopez in the counseling sessions. He also stated that during one weekend visitation, Lopez resisted his efforts to take U.R. to an urgent care center for medical treatment and told Rendsland that if he did not have U.R. back to her on time, she would call the police.
Ann Rendsland testified concerning her relationship with U.R. and the grandparents' plan going forward to meet U.R.'s needs. She testified to her involvement in U.R.'s medical evaluations and the difficulties she had working with Lopez to schedule the appointments. She stated that out of about six specialist appointments, Lopez cancelled two, did not show up for one, and made four appointments that interfered with or went against the court orders and were, for the most part, redundant. She also stated that she had a "significant" concern about U.R.'s speech, felt he needed to be in speech therapy, and "had tried to talk to [Lopez] about it many times." She further stated that Lopez requested that U.R. be taken out of special education at the annual review and dismissal meeting in May 2009. Ann Rendsland also testified that she has put together a "comprehensive life plan designed to show what the grandparents are willing to do to meet any and every need that [U.R.] may have."
Dr. Trapani's Testimony and Written Report
Dr. Trapani testified that she is a clinical and pediatric psychologist and that she conducted a two-day neuropsychological examination of U.R. in July 2009. She stated that, shortly before the evaluation, she received "several somewhat frantic phone calls" from Lopez, who requested that she cancel the evaluation appointment. Dr. Trapani further testified that Rendsland, his sister, and Ann Rendsland were present for the evaluation and that Lopez was present only on the second day. Dr. Trapani further testified that her impression of Lopez was that "she was very anxious. And I think the term paranoid would be appropriate . . . pressured speech and very anxious." Her impression of Rendsland, she stated, was that he was very "consistent" and "calm," and her impression of Ann Rendsland is that she was "[t]he same, very calm."
Dr. Trapani testified that the evaluation of U.R. she administered was a full comprehensive neuropsychological battery. She stated that, based on his affect and the testing results, she diagnosed him with depressive disorder. She explained that "with children, it's very difficult to differentiate between depression and anxiety. . . . But with [U.R.], his depression was so much more pronounced that I assigned him that diagnosis." She further stated that she had U.R. fill out a self report and had Lopez and Ann Rendsland fill out parent self reports. Dr. Trapani testified that in his report, U.R. "indicated significantly poor self esteem, poor social functioning and a strained relationship with his parents," and "reported school to be his area of most distress."
She further testified that Lopez and Ann Rendsland filled out reports on emotional, behavioral, and adaptive functioning and added: "And it's important to note that I had very strikingly different reports from mom and grandmother." Dr. Trapani explained that in the area of "adaptive functioning, which is . . . [the child's] ability to function in [his] home setting," there was a difference of "five standard deviations" between Lopez's report and Ann Rendsland's, which is "a huge discrepancy." She added that "while . . . disagreement between reporters is not uncommon, it's not common at that level, . . . [and] my faith in one reporter versus the other always goes down to my evaluation of the child and what I see from the child and in the self report of the child. And [U.R.] reported . . . significant social difficulties." After she put the scores into her computer program, Dr. Trapani stated, there were "validity indicators . . . that Ms. Lopez's report was . . . a caution for under report, meaning that . . . the scores were so low, meaning that there was absolutely no problem in every area."
Dr. Trapani further testified that she believes U.R. has been "spousified," which means that "a child becomes kind of the role of an equal to a parent as opposed to being a child." She stated that it became evident to her that he was being told things about his father and grandparents that were more appropriate for an adult or a partner than a child, and that she considered it an "ongoing clinical issue" because U.R. "does not have the cognitive resources to thoroughly understand what is going on." She also stated that U.R. told her that his dad is trying to get out of child support, and his grandparents are helping him. Dr. Trapani testified that she has reason to believe that Lopez "is continuing to make statements to him even as therapy is going on," that she "would . . . characterize these behaviors . . . as emotional abuse of this child," and that "it's very clear to me that he feels as if he is betraying his mother in participating in therapy with me" and "if he allows himself to have a relationship with his father or his grandparents." She stated that, despite the observed behavior, she was still committed to reaching out to Lopez to engage her in the therapeutic process, but she has not been able to engage her.
Dr. Trapani also testified that she is not the only counselor who could work with U.R. and if it was decided that he needed to see somebody else, she would facilitate the transition. She stated that, "given the severity of his anxiety and depression," she thinks he will need a "longer term treatment." The issue, she stated, is not whether services are available in one location or another but the "caregiver's ability to follow through on what [U.R.] needs." She further stated that her concern about Lopez's ability to follow through is based on her observed behavior and the "extreme discrepancy" between her parental report and the grandmother's report. Regarding where U.R. should live, Dr. Trapani noted in her written report that U.R. had "extended family on both sides that are clearly very committed to promoting his quality of life and ensuring that he is getting all opportunities and tools to achieve this." She, testified, however that, "based on the observations of the behavior I've seen in his mother and the attempt to interfere with and refusal to participate in the therapeutic process," she believes U.R. "would be better served in an environment where that type of support was embraced . . . and . . . that would best occur with his . . . paternal grandparents."
The Court's Ruling
The district court acknowledged that Lopez had successfully provided U.R. with food, clothing, and "a home that's appropriate and safe" but noted that the issue was "good sound decision making and follow through." The trial court then entered an order appointing Lopez, Rendsland, and the grandparents joint managing conservators and awarded the grandparents the exclusive right to designate the primary residence of U.R. and to make decisions concerning the child's psychiatric and psychological treatment and education. The district court made the following findings of fact and conclusions of law:
Findings of Fact
14. Credible evidence was presented that the child's present custodial circumstances significantly impair his emotional development.
15. Credible evidence was presented that designation of Respondent Sandra Lopez as the managing conservator with the right to designate the child's primary residence would significantly impair the child's emotional development.
16. Credible evidence was presented as to the child's best interest.
. . .
Conclusions of Law
2. Petitioners Ann and Dan Rendsland have standing to bring a Suit Affecting the Parent-Child Relationship, under TFC § 102.004(a)(1) in that the child's present circumstances would significantly impair the child's physical health or emotional development.
. . .
5. Petitioners Ann and Dan Rendsland have overcome the presumption that a fit parent acts in the best interest of the parent's child.
6. It is in the best interest of the subject child that Ann and Dan Rendsland, Paul Rendsland and Sandra Lopez be appointed joint managing conservators of the child.
7. It is in the best interest of the subject child that Ann and Dan Rendsland should be named as the conservators with the right to designate the child's primary residence.
The district court denied Lopez's motion for new trial. This appeal followed.
ANALYSIS
We review a trial court's modification of a conservatorship under an abuse of discretion standard and will not overturn a trial court's order unless the complaining party can show a clear abuse of discretion. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The test for abuse of discretion is whether the trial court's ruling is arbitrary, unreasonable or without reference to any guiding rules or legal principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). "The trial court is in the best position to observe the demeanor and personalities of the witnesses and can `feel the forces, powers, and influences that cannot be discerned by merely reading the record,'" and a trial court does not abuse its discretion as long as there is some substantive, probative evidence to support its decision. Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.-Austin 2002, no pet.) (quoting Jeffers v. Wallace, 615 S.W.2d 252, 253 (Tex. Civ. App.-Dallas 1981, no writ). Under an abuse of discretion standard, legal and factual sufficiency challenges to the evidence are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.-Austin 2006, pet. denied); In re D.M., 191 S.W.3d 381, 393 (Tex. App.-Austin 2006, pet. denied). Because we apply an abuse of discretion standard to a modification suit, the traditional sufficiency standards of review overlap the abuse of discretion standard, and appellate courts apply a hybrid analysis. Zeifman, 212 S.W.3d at 587-88; see also Echols, 85 S.W.3d at 477.
Once it has been determined that the abuse of discretion standard applies, an appellate court engages in a two-pronged inquiry: (1) whether the trial court had sufficient information on which to exercise its discretion, and (2) whether the trial court erred in its application of discretion. Zeifman, 212 S.W.3d at 588. The traditional sufficiency review comes into play with regard to the first question; however, the inquiry does not end there. Id.; Echols, 85 S.W.3d at 478. The appellate court then proceeds to determine whether, based on the evidence, the trial court made a reasonable decision, that is, that the court's decision was neither arbitrary nor unreasonable. Zeifman, 212 S.W.3d at 588; Echols, 85 S.W.3d at 478.
When the appellate record includes the reporter's and clerk's records, as in this case, the trial court's findings, express or implied, are not conclusive and may be challenged on appeal for evidentiary sufficiency. Sixth RMA Partners v. Sibley, 111 S.W.3d 46, 52 (Tex. 2003). We review a trial court's findings of fact for legal and factual sufficiency of the evidence by the same standards applied to a jury verdict. Ortiz v. Jones, 917 S.W.2d 770, 772 (Tex. 1996). We review a trial court's conclusions of law de novo and will uphold the conclusions if the judgment can be sustained on any legal theory supported by the evidence. BMC Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 794 (Tex. 2002). Although a trial court's conclusions of law may not be challenged for factual sufficiency, we may review the legal conclusions drawn from the facts to determine whether the conclusions are correct. Id.
In reviewing the legal sufficiency of the evidence, we view the evidence in the light most favorable to the judgment, crediting favorable evidence if a reasonable fact finder could, and disregarding contrary evidence unless a reasonable fact finder could not. City of Keller v. Wilson, 168 S.W.3d 802, 807 (Tex. 2005). The test is "whether the evidence at trial would enable reasonable and fair-minded people to reach the [judgment] under review." Id. at 827. In reviewing factual sufficiency of the evidence, we consider and weigh all of the evidence in the record, and we may overturn a judgment only if it is so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).
Impairment of Child's Development
In her first issue, Lopez challenges (i) the trial court's findings that credible evidence was presented that U.R.'s present custodial circumstances significantly impair his emotional development and that designation of Lopez as the managing conservator with the right to designate the child's primary residence would significantly impair his emotional development and (ii) the trial court's conclusion that U.R.'s present circumstances would significantly impair his physical health or emotional development. Lopez contends that the Rendslands failed to offer evidence that U.R.'s health and emotional development are impaired or evidence of specific acts or omissions of Lopez demonstrating that an award of custody to Lopez would result in physical or emotional harm, as required by section 153.131(a) of the Texas Family Code. See Tex. Fam. Code Ann. § 153.131(a) (West 2008).
Although in her briefing Lopez cites section 153.131(b), we construe her first issue as referring to section 153.131(a). See Tex. Fam. Code Ann. § 153.131 (West 2008).
Section 153.131(a) provides:
[U]nless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.
Id. § 153.131(a).
Lopez's reliance on section 153.131, however, is misplaced. Chapter 153 governs original suits regarding conservatorship. See id. §§ 153.001-.611 (West 2008 Supp. 2009). This appeal concerns not an original determination of conservatorship under Chapter 153, but a modification governed by Chapter 156. See id. §§ 156.001-.410 (West 2008 Supp. 2009); In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000); Spencer v. Vaughn, No. 03-05-00077-CV, 2008 Tex. App. LEXIS 1708, at *25 (Tex. App.-Austin Mar. 6, 2008, pet. denied) (mem. op.). "Chapter 153 and Chapter 156 are distinct statutory schemes that involve different issues." In re V.L.K., 24 S.W.3d at 343. After a court makes an original appointment of a conservator under Chapter 153, a party may seek a modification of that determination under section 156.101. See Tex. Fam. Code Ann. § 156.101 (West Supp. 2009). In this case, the district court entered an original order regarding conservatorship in 1999. Rendsland and the grandparents both filed petitions seeking to modify the terms of that order. Therefore, section 153.131(a) is not applicable here.
Further, even assuming section 153.131(a) applies, we would uphold the district court's findings and conclusion regarding impairment of U.R.'s physical health and emotional development. Although evidence was presented in Lopez's favor on the issue of whether U.R.'s custodial circumstances significantly impaired his physical health or emotional development, there was testimony from three witnesses showing impairment. Rendsland, Ann Rendsland, and Dr. Trapani testified that Lopez repeatedly cancelled or failed to bring U.R. to medical appointments and generally refused to cooperate with them or participate in the evaluation and therapeutic processes. They further testified that Lopez declined to acknowledge U.R.'s physical medical needs and at times refused treatment for them, and Ann Rendsland testified that Lopez requested that U.R. be taken out of special education.
The undisputed expert testimony of Dr. Trapani was that U.R. has depressive disorder and anxiety and will need long term counseling, that Lopez's self report reflected that she saw no problem in any areas with her son's development, and that Lopez has spousified U.R., which is an ongoing issue because U.R. does not have the cognitive ability to understand being treated as an equal by his mother. Dr. Trapani also testified that she has reason to believe Lopez has continued to make inappropriate statements to U.R. during his therapy, which she characterized as "emotional abuse." Significantly, Dr. Trapani stated her concerns about Lopez's ability to follow through on the long term treatment U.R. needs and her opinion that U.R.'s needs would best be met by his living with the grandparents.
The trial court had the opportunity to observe the witnesses and could have credited the testimony of Rendsland, Ann Rendsland, and Dr. Trapani. See Echols, 85 SW.3d at 477. The evidence was sufficient to allow reasonable and fair-minded people to reach the findings reached by the district court regarding U.R.'s impairment, see City of Keller, 168 S.W.3d at 827, and we cannot say that the findings are so against the great weight and preponderance of the evidence as to be clearly wrong and manifestly unjust. See Cain, 709 S.W.2d at 176. The evidence therefore was legally and factually sufficient to support the district court's findings regarding credible evidence of impairment, and the district court's conclusion that U.R.'s present circumstances would significantly impair his physical health or emotional development was neither arbitrary nor unreasonable. See Zeifman, 212 S.W.3d at 588; Echols, 85 S.W.3d at 478. We overrule Lopez's first issue.
Although Lopez does not challenge the trial court's conclusion that the grandparents had standing, the standard for grandparents' standing is analogous to the standard set forth in section 153.131(a). See Tex. Fam. Code Ann. § 102.004(a)(1) (West Supp. 2009) (grandparents have standing "if there is satisfactory proof to the court that . . . the child's present circumstances would significantly impair the child's physical health or emotional development"); § 156.002(b) (a person who "has standing to sue under Chapter 102" may file modification suit). According to Lopez, the trial court addressed the grandparents' standing at the hearing in January 2009, ruling that they had standing. The reporter's record, however, does not include the January hearing.
Parental Presumption
In her second issue, Lopez contends that the district court erred in finding that the grandparents overcame "the presumption that a fit parent acts in the best interest of the parent's child." Lopez argues that the Rendslands failed to offer evidence to overcome the rebuttable presumption established in section 153.131(b) of the Texas Family Code that it is in the best interest of U.R. for Lopez and Rendsland to be named joint managing conservators. See Tex. Fam. Code Ann. § 153.131(b) (West 2008) ("It is a rebuttable presumption that the appointment of the parents of a child as joint managing conservators is in the best interest of the child."). Because this is an appeal from a modification of a conservatorship under Chapter 156 of the Texas Family Code, however, the presumption in favor of parents contained in section 153.131(b) does not apply. See In re V.L.K., 24 S.W.3d at 344. In In re V.L.K., the supreme court addressed a modification proceeding in which the child's aunt and uncle sought to be named joint managing conservators of their nephew and argued that the parental presumption did not apply in modification proceedings. The supreme court agreed, concluding that the legislature did not express its intent to apply the presumption in Chapter 156 and that "courts should not apply the presumption in [modification] cases." Id. at 343; see also Spencer, 2008 Tex. App. LEXIS 1708, at *25.
Further, even if we were to apply section 153.131(b) here, we would conclude that the grandparents presented evidence sufficient to overcome the parental presumption that appointment of the parents as joint managing conservators is in the best interest of the child. The supreme court set out a nonexhaustive list of factors to consider in determining a child's best interest in Holley v. Adams, 544 S.W.2d 367 (Tex. 1976). Those factors include the desires of the child, the emotional and physical needs of and danger to the child now and in the future, the parental abilities of the individuals seeking custody, the programs available to assist these individuals to promote the best interest of the child, the stability of the home, the acts or omissions of the parent, which may indicate that the existing parent-child relationship is not a proper one, and any excuse for the acts or omissions of the parent. Id. at 371-372.
Viewing the evidence in the light most favorable to the district court's finding, the evidence showed that U.R. lived primarily with Lopez prior to the hearing and that Lopez was unable to meet his physical and emotional needs. See City of Keller, 168 S.W.3d at 807. Rendsland, Ann Rendsland, and Dr. Trapani each testified that Lopez resisted, and at times refused to seek recommended treatment for her son's physical and emotional health needs. Dr. Trapani testified that U.R. has developed significant depression for which he will need long term counseling, expressed concern that Lopez will be unable to follow through on the care he needs, and characterized Lopez's treatment of him as "emotional abuse." On this record, we cannot say that the district court's conclusion that the grandparents overcame the parental presumption was either arbitrary or unreasonable. See Zeifman, 212 S.W.3d at 588; Echols, 85 S.W.3d at 478. We overrule Lopez's second issue.
CONCLUSION
Having overruled Lopez's issues, we affirm the district court's judgment.