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In re S.N.Z.

Court of Appeals of Texas, Fifth District, Dallas

January 28, 2014

IN THE INTEREST OF S.N.Z., A CHILD

Page 900

[Copyrighted Material Omitted]

Page 901

On Appeal from the 417th Judicial District Court, Collin County, Texas. Trial Court Cause No. 417-50064-06.

For appellants: Anthony Hamilton Green, Law Office of Anthony Green, Fort Worth, TX; Emil Lippe Jr., Law Offices Of Lippe & Associates, Dallas, TX.

For appellees: Laura B. Roach, Albin Yates Balius Roach, Plano, TX.

Before Justices Lang-Miers, Fillmore, and Brown[1]. Opinion by Justice Brown.

OPINION

Page 902

ADA BROWN, JUSTICE

The mother of S.N.Z. appeals from an order denying her counter-petition to modify the parent-child relationship. The trial court specifically denied Mother's request for standard visitation, leaving her with limited supervised visitation with S.N.Z., and modified the existing possession order to change the time of day the supervised visitation occurred. On appeal, Mother contends the visiting judge that presided over the case was disqualified and challenges the sufficiency of the evidence to support the continuation of the requirement that her periods of access and possession be supervised. We affirm the trial court's order.

Background

Appellees are S.N.Z.'s paternal aunt and uncle. S.N.Z.'s father is deceased. In January 2007, the parties signed a mediated settlement agreement, the terms of which were incorporated into a final order dated January 29, 2007.[2] The 2007 final order named appellees as permanent managing conservators of S.N.Z. and Mother as possessory conservator with five hours of supervised visitation with S.N.Z. on the first, third, and fifth Sunday of each month. The parties selected Mother's older daughter M.H. as the visitation supervisor. Mother was required to submit to drug testing, including random drug testing at the request of appellees, but she was not required to pay child support. Appellees agreed to telephone contact between S.N.Z. and Mother one night each week. The parties further agreed to attend family counseling sessions. The parties acknowledged that the agreement on conservatorship was in S.N.Z.'s best interest.

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Appellees sought to modify the 2007 final order in June 2009, asking the court to remove the portion of the final order that prohibited them from traveling with S.N.Z. outside of the state without the written agreement of Mother. They also asked the court to render a possession order that provided " greater security" for S.N.Z. and modify Mother's periods of possession to exclude the fifth Sunday of each month. In an amended petition, appellees sought removal of the requirement for telephone access between Mother and S.N.Z.

Mother filed a response and counter-petition to modify. Mother sought to be named the sole managing conservator of S.N.Z. and terminate all conservatorship rights of appellees. She alleged that circumstances have materially changed because, among other things, appellees have denied her access to information about S.N.Z., denied her scheduled visitation and telephone calls, removed S.N.Z. from the state without her permission, and refused to participate in counseling. She also alleged she believed appellees were " poisoning the child's mind" against her. She further alleged her physical and financial positions have improved to the point where she is fully capable and competent to care for S.N.Z. Mother amended her counter-petition, alleging in the alternative that in the event she is not awarded sole custody, the child's best interests would be served by restoring her visitation " to those normally referred to as 'standard visitation rights.'"

Before the start of the trial on January 17, 2012, Mother, acting pro se, objected to the assignment of the Honorable Don Jarvis as a visiting judge and argued that based on her objection, the judge lacked jurisdiction to hear the case. She also filed an emergency motion to dismiss and objection to the judge. The trial judge denied her motion, and the case proceeded to trial before the court.

Mother explained at trial that she was seeking more time with S.N.Z. and would allow S.N.Z. to remain living with appellees if she could receive the standard visitation afforded parents under the family code.[3] She presented the testimony of five witnesses in support of her contention that supervised visitation was no longer required. Her first two witnesses testified they had known Mother for four or five years and were aware of Mother's ongoing attempts to gain more access to her daughter. Both witnesses described Mother as a caring and loving person, who was upset she could not spend more time with S.N.Z. and be involved in her life. They testified Mother had told them about an incident that occurred when S.N.Z. was a baby where Mother broke her neck while catching S.N.Z. during a fall. They agreed this incident showed that a person who saves her baby from a fall would not harm her child; rather, it showed Mother put the child's safety before her own health. The witnesses said they had never met S.N.Z., and one witness acknowledged that all the information she testified to about the case came from Mother.

Mother's ex-boyfriend also testified to the incident where Mother " saved her child," stating Mother " put her own health at risk to try and save her little girl." Mother's ex-boyfriend dated Mother for four years and was present for " a lot of supervised visits with various supervisors." He testified the visits were upbeat and positive and represented a normal, healthy interaction. He also testified Mother displayed " true motherly affection" for not only S.N.Z. but also for M.H. and M.H.'s

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children when they were present for the visits. He never witnessed any inappropriate behavior and questioned the need for supervised visitation.

Joanne Goodwin testified to her observations as a court-approved visitation supervisor. Goodwin also was one of Mother's personal friends and was not paid for supervising the visits. Goodwin supervised Mother's visits with S.N.Z. for about seven months. Goodwin said that at her first visit, S.N.Z. was sullen but as they got into the visit, she became lively, animated, and happy. According to Goodwin, the visits seemed to be " pretty fun loving" and Mother and S.N.Z. had normal mother/daughter exchanges. Goodwin described the last visit she supervised before the trial began. She said S.N.Z. had been away from Mother for a longer period of time and it took S.N.Z. a long time to " warm up" to her mother. Goodwin testified, however, that " in spite of the alienation," she could see a bond between Mother and S.N.Z. Goodwin did not see any danger in S.N.Z. spending more time with Mother without a supervisor.

Goodwin also testified that during the last visit, Mother asked S.N.Z. if she was aware of the upcoming trial. Goodwin heard S.N.Z. tell Mother that she did not want to be at the proceedings. Goodwin admitted that she has heard Mother relay " factual statements" about appellees to S.N.Z., but she could not provide an example of what may have been said.

Goodwin further testified to an exchange between Mother and S.N.Z. during which S.N.Z. said she could not send a text message to Mother because she had been told by her uncle that she was not supposed to do so. Goodwin said S.N.Z. told Mother that her uncle checked her text messages each night and that S.N.Z. seemed afraid she would get in trouble if she sent Mother a text message.

Mother's final witness was Stephen Finstein, a licensed clinical social worker, family therapist, and sex-offender treatment provider. Mother hired Finstein to observe a home visit with S.N.Z. and perform various psychological tests on Mother to evaluate whether there would be a danger in permitting Mother to have unsupervised visitation. The tests assessed Mother's truthfulness and whether parenting is stressful for her. Finstein testified that based on his observations and testing, he recommended that Mother have unsupervised visitation with S.N.Z. Finstein admitted on cross-examination that he never interviewed S.N.Z. or M.H.; he received his information from his interview with Mother and documents she provided. He also agreed that if a child consistently reports she is being emotionally abused and requests protection from a person, then that is " something that should be looked into."

Mother testified she signed the mediated settlement agreement because she was told by the mediator that she " would never see [S.N.Z.] again if [she] didn't let her go live with [appellees]." And she clarified that she was asking the court only to increase her visitation rights because she was concerned about S.N.Z.'s emotional well-being. Mother denied " talking bad" about appellees to S.N.Z. but admitted to talking with S.N.Z. about the upcoming trial. Mother thinks S.N.Z. should be in counseling and claimed she has been denied the counseling that the parties agreed to in the mediated settlement agreement.

Counsel for appellees played a tape recording of a phone message Mother left for appellees. Mother testified she was upset on that call because she thought appellees were putting M.H. in the middle of a disagreement over who was supposed to drive S.N.Z. to ...


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