Opinion
No. 08-20-00042-CV
03-10-2021
Daniel MCKEY, Appellant, v. Laura STALLINGS, Appellee.
OPINION
Arguing that the trial court abused its discretion, Daniel McKey, Appellant ("Father"), appeals the court's modified possession order restricting possession of his daughter, I.J.M., to supervised visitation. This Court affirms the trial court's ruling, as there is sufficient evidence to support its judgment.
BACKGROUND
Laura Stallings, Appellee ("Mother"), filed a Petition to Modify Parent-Child Relationship on March 7, 2018 seeking, among other things, that Mother be named I.J.M.'s sole managing conservator and that Father either be denied visitation with their daughter or that his visitation with her be supervised. Mother's request was based on I.J.M.'s reports of being punished by spankings, being forced to stand in the corner, being forced to write contracts of apology, being underfed at times, being subjected to threats of violence, being subjected to verbal abuse, being subjected to physical punishment at the hands of her stepmother and step-grandmother, and having to stay in her room and watch television for hours at times while in Father's custody. Mother further indicated that I.J.M. was left with an unknown stepmother's friend and that on another occasion, I.J.M.'s foot was injured by her step-grandmother, that no medical attention was sought, and that Mother was not informed, despite the need for medical attention. Finally, Mother indicated that despite I.J.M.'s allergies to makeup, Father's wife repeatedly tried to put makeup on her.
On March 8, 2018, the court issued an Ex-Parte Temporary Restraining Order and Order Setting Hearing for Temporary Orders, ordering Mother have continuous possession of and access to I.J.M. and Father be excluded from unsupervised possession and access of the child. On March 26, 2018, the Temporary Restraining orders were extended based on Father's unavailability for a hearing.
Following a hearing on the Petition to Modify on April 13, 2018, the Court signed temporary orders on June 30, 2018, which ordered Father to coordinate with Mother and counselor Brent Dooley to schedule at least two visits with Mother, Father, their daughter, and counselor Dooley. Further, Father's visitation with his daughter thereafter would be at the recommendation of Mr. Dooley. A final trial that was to begin on December 4, 2018, was recessed due to Father's failure to comply with the counseling order. The court extended its June 30, 2018, temporary orders pending the conclusion of a final hearing, which was to take place only after Father complied with the counseling order.
The final trial was held on August 13, 2019, during which Father, Mother, and counselor Brent Dooley testified. Mr. Dooley testified about the parties' discussion regarding what was disturbing I.J.M., including her emotional distress over being reprimanded for expressing her feelings and concerns about her step-grandmother. Mr. Dooley testified his recommendation was I.J.M. should not be chastised or punished for expressing her feelings. Further, Father should be the one to handle discipline when I.J.M. was in his custody. Mr. Dooley told the court, in response, Father said he was going to send Mr. Dooley a written plan regarding how issues would be addressed so that the problems would not persist. Father never gave Mr. Dooley anything in writing. Father also confirmed he never reported back to Mr. Dooley. Finally, Mr. Dooley did not recommend unsupervised visits between Father and I.J.M.
Mother testified as to the allegations in her Petition to Modify as well as to I.J.M.'s improved physical health and emotional wellbeing following the court's orders restricting the child's visitation with Father. Mother testified Father did not access the child, call the child, or attend her events in the prior year and a half, other than one lunch. Mother testified she has not stopped Father from having a relationship with his daughter, but that he has not called her.
Father testified the last time he saw I.J.M. was on January 28, 2019 in their therapy session and since December 4, 2018, he has not sent I.J.M. any cards, letters, gifts or called her. When asked if Father thought the court orders included he could not correspond with I.J.M., Father responded he had no confidence that Mother would not corrupt or interfere with any such communications or that anything he were to send I.J.M. would ever reach her. Father explained "[i]t must have been the scare tactics of the sheriff" or his own "interpretation from the--the legal ramifications" that prompted him to understand the April 3, 2018 order as legally restraining him from seeing I.J.M.
DISCUSSION
Issue
Father argues requiring supervision when Father is in possession of I.J.M. based on the recommendation of a counselor who had not seen the child in individual therapy for almost ten months before the final trial is not in the child's best interest and therefore the trial court abused its discretion in ordering supervision during his periods of possession.
Standard of Review
The standard of review for modification of a possession order is abuse of discretion; namely, whether the trial court acted arbitrarily or unreasonably. Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) ; Gillespie v. Gillespie , 644 S.W.2d 449, 451 (Tex. 1982). The court's decision regarding the possession order must be premised primarily upon the child's best interest in light of the circumstances. TEX.FAM.CODE ANN. § 153.002 ; G.K. v. K.A. , 936 S.W.2d 70, 72-73 (Tex.App.—Austin 1996, writ denied). The trial court has broad discretion in its determination, as it is in the best position to assess the evidence based on its first-hand view of the witnesses, testimony, and evidence; this Court may not substitute its judgment for that of the trial court. Walker v. Gutierrez , 111 S.W.3d 56, 62 (Tex. 2003). Absent an abuse of discretion, the trial court's determination of the child's best interest stands. Worford , 801 S.W.2d at 109 ; Gillespie , 644 S.W.2d at 451.
Analysis
In the present case, the trial court based its decision to require supervision during periods of Father's possession of his child on sufficient evidence in the record. Finding Mother's material allegations in the Petition to Modify to be true, the court held that continual supervision of Father's visitation with I.J.M. was in the best interest of the child. The court explained that absent the restrictions, the child's physical health and emotional development and welfare would be in danger. Not only did Counselor Dooley recommend supervised visitation given Father's failure to submit a plan regarding how to address the areas of concern, but the court indicated that it was unable to trust Father would follow orders without supervision, as Father "failed to comply with [c]ourt orders, the [c]ounselor's requests, Mother's requests, and because Father takes action without consulting with others, even when required to coordinate" and perhaps "he does not comprehend how to comply with them."
Because the trial court's decision was premised upon the child's best interest and was reasonable in light of the record, this Court will not overturn the trial court's decision regarding the possession order modification. Appellant's sole issue is overruled.
CONCLUSION
The trial court did not abuse its discretion by modifying the possession order to require supervised visitation when Father is in possession of I.J.M.
Palafox, J., Concurs
CONCURRING OPINION
GINA PALAFOX, Justice
I join the court's opinion because I agree the record includes sufficient evidence to demonstrate the trial court did not abuse its discretion in ordering supervised visitation for Father. I write separately simply to highlight the nature and extent of the evidence presented at the modification hearing in support of the trial court's ruling.
A trial court has the discretion to modify the duration and regularity of visits when there has been a showing of a material and substantial change in circumstances and that the modification would be in the best interest of the child. TEX.FAM.CODE ANN. § 156.101(a)(1) ; Trevino v. O'Quinn , No. 03-18-00197-CV, 2019 WL 4125125, at *4 (Tex.App.—Austin Aug. 30, 2019, no pet.)(mem. op.). The trial court's primary consideration will be the best interest of the child. Id. An order that restricts a parent's right to possession and access to a child may not impose restrictions beyond those necessary to protect the child's best interest. TEX.FAM.CODE ANN. § 153.193 ; Matter of Marriage of Harrison , 557 S.W.3d 99, 131 (Tex.App.—Houston [14th Dist.] 2018, pet. denied). An abuse of discretion only occurs when the record does not contain evidence supporting a finding that such restrictions are in the best interest of the child. In re P.A.C. , 498 S.W.3d 210, 219 (Tex.App.—Houston [14th Dist.] 2016, pet. denied).
The prior order, entered in the summer of 2017, altered the exchange provisions and summer visitation but it remained that Father would have visitation with I.J.M. on the first, third, and fifth weekend of the month. Mother filed her Petition to Modify and obtained an Ex-Parte Temporary Restraining Order in March of 2018. Temporary Orders were entered on April 13, 2018, which restricted Father's visitations to "at least two (2) visits with the child, her counselor, Brent Dooley, and Laura Stallings," and ordered any visits thereafter would be at the recommendation of Brent Dooley. Additional temporary orders were entered on December 5, 2018 after resetting the final hearing that was to take place on December 4 because the court's order previously entered had not yet been completed and further clarified that Father's visitations remained restricted. A final hearing was held on August 13, 2019 in which the trial court heard testimony from three witnesses, Counselor Dooley, as well as Mother, and Father, and received documentary evidence to include counseling progress notes.
The trial court's findings of fact and conclusions of law indicate it imposed limitations to protect the best interest of the child because the child's counselor recommended it, because Father had demonstrated that either he will not comply with court orders or counselor recommendations, or he does not comprehend such, and because of his behavior in court. The trial court concluded that Father did not act in the best interest of I.J.M., and the court did not trust he would follow court orders without supervision, and therefore the child's best interest could only be protected through supervised visitation. In viewing the evidence presented in the light most favorable to the judgment, the trial court could have concluded that restricting Father's periods of possession and requiring the visitations be continuously supervised were in I.J.M.'s best interest. Harrison , 557 S.W.3d at 131 ; In re P.A.C. , 498 S.W.3d at 219.
The counselor, Brent Dooley, testified to the two counseling visits that had taken place on January 21, 2019 and January 28, 2019. The counselor reported he had discussed the concerns he had regarding I.J.M.'s disturbances surrounding her visits with her Father and her being "reprimanded for expressing her feelings." Father assured the counselor that he would send something in writing about how he would take care of these problems so they would not happen in the future, which was never completed. The counselor testified that he could not recommend unsupervised visits between Father and I.J.M., at the time of the hearing, because these concerns had not been addressed as far as he was informed.
Mother testified that I.J.M. had just started attending the fourth grade in school. At the time of the hearing, I.J.M. had been prescribed medication for ADHD and anxiety, which she had been taking for about a year and half. Without objection, Mother testified that during previous periods of possession by Father, I.J.M. reported she was subjected to a public punishment which included being physically placed in a corner at Target and told by her father "to look at her rude and selfish face in the mirror in Target numerous times." At the time of the final hearing in August 2019, Mother testified Father had not had an unsupervised visit with I.J.M., which were held apart from the visits at the counselor's office, since February 2018. Mother also stated that Father had not called or communicated with I.J.M. "in over a year." Lastly, Mother testified that I.J.M. would come back from visitations with her father with dark circles under her eyes, stomachaches, and fever. Mother requested supervised visitation initially that would work towards unsupervised.
Appearing pro se, Father testified he had not seen I.J.M. since the last counseling visit on January 28, 2019. Contrary to temporary orders which had restricted Father's visitation, he once attempted to pull I.J.M. out of school to attend an appointment with the counselor in which he did not coordinate with Mother. When asked about the incident when I.J.M. was publicly placed in a corner and told to look at her rude self, Father stated "I don't know that she was ever told that and neither do you." Father also explained he never complied with Counselor Dooley's recommendations because his visitations were denied and therefore, he had nothing to report to Counselor Dooley. He stated he believed I.J.M.'s discomfort and anxiety should be addressed by her moving to Austin with him, and later retracted stating his requests to the court would be to modify the exchange location. Father testified that his requests for visitations were all denied or ignored, he did not attempt to communicate with her because he was sure Mother would interfere with such communication, but stated he refused to give up.
Because the trial court is the sole judge of the credibility and demeanor of witnesses, the supervised visitation order reflects that the court believed the testimony of the counselor and of Mother with respect to Father's lack of follow through with counseling recommendations to address I.J.M.'s concerns about visits with her father. Harrison , 557 S.W.3d at 133.
Father argues that ordering supervised visitations based on the opinion of a counselor who had not seen the child for months prior to testifying was an abuse of discretion. However, on review of the record, it shows the trial court did not base its ruling solely on the counselor's recommendation. Rather, the trial court more broadly considered testimony not only from the counselor but also from Mother and Father. Furthermore, the counselor's testimony was not considered solely for his recommendation but also for the showing that Father had failed to follow through with court orders to meet with the counselor to develop a plan to improve his interactions with I.J.M. to better understand and meet her emotional needs. Father admitted he had failed to develop such plan meant to address I.J.M.'s concerns about her visits with him and his treatment of her when she expressed her feelings.
Viewing the record favorable to the trial court's judgment, as required on review, I concur with the majority that the trial court had sufficient evidence to support its ruling that supervised visitation with Father would be in the child's best interest. Harrison , 557 S.W.3d at 131-33 (finding trial court did not abuse its discretion in ordering supervised visitations for mother when there was evidence she failed to conduct herself in a manner that furthered the children's best interest, she failed to comply with prior court orders, testimony on her parenting, and recommendation by counselor); In re P.A.C. , 498 S.W.3d at 219 (holding no abuse of discretion in restricting periods of possession and supervising visits when there was evidence mother failed to follow prior court orders, mother attempted to alienate the children from father, and counselor recommended supervised visitations); Trevino , 2019 WL 4125125, at *4 (holding no abuse of discretion when the trial court ordered mother's possession and access to the child to be supervised when the mother was previously the primary joint managing conservator because there was evidence of mother violating court orders, making false reports, and improper conduct with the child).