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In re A.G.

Court of Appeals of Texas, Fourteenth District

September 12, 2017

IN THE INTEREST OF A.G. AND A.F.G., CHILDREN

         On Appeal from the 312th District Court Harris County, Texas Trial Court Cause No. 2015-01065

          Justice Panel consists of Justices Boyce, Jamison, and Brown.

          OPINION

          Martha Hill, Jamison.

         Appellant Jaime Guevara appeals from the trial court's modification order in a suit affecting the parent-child relationship. In the order, the trial court granted appellee Betty Rodriguez's motion for modification, thereby requiring Guevara's visitation with his minor children to be supervised by a third party, and denied Guevara's motion for enforcement against Rodriguez. In two issues, Guevara contends that the trial court erred in ordering supervised visitation and denying the motion to enforce. We affirm.

         Background

         Guevara and Rodriguez were divorced in 2006 in Austin County, Texas. They have two male children together: A.F.G., age 12 at the time of trial in the present case, and A.G., age 14 at the time of trial. Under the 2006 divorce decree, Rodriguez had primary custody of the children and Guevara had a standard possession order. In 2014, Guevara filed a motion to modify in Austin County, seeking primary custody of A.G. After a hearing, the Austin County court entered temporary orders awarding Guevara primary custody of A.G. The case was subsequently transferred to a Harris County family district court because the children had been living in Harris County for more than six months prior to the filing of the modification.

         In March 2015, the parties entered into a Rule 11 agreement, pursuant to which, A.G. returned to live with Rodriguez as his primary residence and Guevara again had a standard possession order pending further order of the court.[1] However, in his first amended petition, Guevara reiterated his request for primary custody of A.G. In her second amended counter-petition, Rodriguez requested that Guevara be denied access to the children, or in the alternative, that his visitation be supervised by a third party because of the danger he posed to the children's physical and emotional well-being.[2] In November 2015, Guevara filed a motion for contempt, alleging Rodriguez had been preventing his visitation with the children pursuant to the Rule 11 agreement. Guevara thereafter filed a Supplemental Motion for Enforcement regarding the same allegations.[3]

         The case was tried to the court on March 7 and 8, 2016. As will be discussed in more detail below, Rodriguez testified that revelations from the children regarding their visitations with Guevara caused her to conclude that the visits needed to be supervised by a third party. Most importantly, Rodriguez indicated that Guevara had beaten A.G. on several occasions. In his testimony, Guevara denied having ever struck either child, except for a few spankings when they were younger. Other witnesses called by Guevara testified to his positive involvement in their lives. A licensed professional counselor called by Rodriguez testified that she made a written report to Child Protective Services concerning things she learned from the children in counseling sessions. Guevara testified that Rodriguez had prevented his court-ordered visitation with the children multiple times. The trial judge also conferred with the children in chambers after the trial.[4]

         At the conclusion of the trial, the judge granted Rodriguez judgment as to Guevara's Motion for Contempt and Supplemental Motion for Enforcement. In making his ruling, the judge specifically questioned whether Guevara's motions for enforcement contained the information required under Texas Family Code section 157.002, including the provisions of the decree allegedly violated, the manner of noncompliance, and the date, place, and time of each alleged failure to comply. Tex. Fam. Code § 157.002(a), (c). In the final order, the trial judge, among other things, granted Rodriguez's motion to modify the divorce decree and ordered that Guevara's future visitation with the children be supervised by a third party. No findings of fact or conclusions of law were requested or entered.

         Supervised Visitation

         In his first issue, Guevara contends that the trial court abused its discretion in modifying the divorce decree to require Guevara's visitation with his sons be supervised by a third party because the evidence is legally insufficient to support the trial court's decision. A trial court may modify the provisions of a divorce decree that provide for the possession of or access to a child if modification would be in the best interest of the child and the circumstances of the child, conservator, or other party affected by the order have materially and substantially changed since the decree's rendition. See Tex. Fam. Code § 156.101(a)(1). We review a trial court's decision to modify possession or access under an abuse-of-discretion standard. In re H.D.C., 474 S.W.3d 758, 763 (Tex. App.-Houston [14th Dist.] 2014, no pet.). In determining these issues, the primary consideration must remain the best interests of the child. See Fam. Code § 153.002; Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002). A trial court abuses its discretion when it acts arbitrarily or unreasonably or when it clearly fails to correctly analyze or apply the law. In re S.A.H., 420 S.W.3d 911, 922 (Tex. App.-Houston [14th Dist.] 2014, no pet.). Under the abuse-of-discretion standard, legal and factual sufficiency of the evidence are not independent grounds of error but are factors in assessing whether the trial court abused its discretion. Id. There is no abuse of discretion as long as some evidence of a substantive and probative character exists to support the trial court's exercise of discretion. In re H.D.C., 474 S.W.3d at 763.

         Because the record does not reflect that findings of fact were requested or entered, we infer that the trial court made all findings necessary to support its judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re P.A.C., 498 S.W.3d 210, 217 (Tex. App.-Houston [14th Dist.] 2016, pet. denied). Under these circumstances, we review the record to determine whether some evidence supports the judgment and the implied findings, considering only the evidence most favorable to the judgment and upholding the judgment on any legal theory supported by the evidence. Worford, 801 S.W.2d at 109; P.A.C., 498 S.W.3d at 217.

         There is a rebuttable presumption that a standard possession order-which Guevara had before the trial court's modification order-is in the best interest of a child and provides reasonable minimum possession of a child for a parent named as a joint managing conservator. Tex. Fam. Code § 153.252. A trial court, however, may place conditions on a parent's access, such as supervised visitation, when it is in the child's best interest. In re Marriage of Koenig, No. 14-16-00319-CV, 2017 WL 2704081, at *4 (Tex. App.-Houston [14th Dist.] June 22, 2017, no pet. h.) (mem. op.); see also In re A.L.E., 279 S.W.3d 424, 432 n.7 (Tex. App.-Houston [14th Dist.] 2009, no pet.) ("It is beyond question that, in an appropriate case, a trial court may order a parent's visitation to be supervised."). Restrictions or limitations placed on a parent's right of possession or access may not exceed those necessary to protect the best interests of the child. Tex. Fam. Code § 153.193.

         One basis for visitation restrictions is evidence that a parent poses a physical danger to the child. Id. ยง 153.004(e) ("It is a rebuttable presumption that it is not in the best interest of a child for a parent to have unsupervised visitation with 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, ...


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