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In re G.N.M.

Court of Appeals of Texas, Fifth District, Dallas

November 6, 2017

IN THE INTEREST OF G.N.M., A CHILD

         On Appeal from the 301st Judicial District Court Dallas County, Texas Trial Court Cause No. DF-13-17972

          Before Justices Francis, Myers, and Whitehill

          MEMORANDUM OPINION

          BILL WHITEHILL, JUSTICE

         In this suit affecting parent-child relationship (SAPCR), the trial court conducted a bench trial and signed an order appointing Mother sole managing conservator and Father possessory conservator of their child, G.N.M. The order further required Father's possession of G.N.M. to be supervised. The court also signed a separate protective order that did not grant Father all the relief he requested regarding a document that an expert witness produced at trial.

         Father appeals. A focal point in Father's appeal is whether the trial court abused its discretion in its custody ruling where Father is a registered sex offender with a history of other youth-sex improprieties. Based on this record, we hold that the trial court did not abuse its discretion and affirm.

         I. Background

         Mother filed this SAPCR in September 2013 when G.N.M. was four years old. She alleged that Father was G.N.M.'s presumed father and asked the court to (i) appoint her G.N.M.'s sole managing conservator, (ii) appoint Father G.N.M.'s possessory conservator, and (iii) deny Father any possession of G.N.M. or, alternatively, grant Father only supervised possession of G.N.M.

         Father filed a counter-petition asking the court to appoint him and Mother as joint managing conservators. He also sued Mother for defamation.

         The trial court held a one-day bench trial, during which licensed professional counselor Maria Molett produced to Mother a document Father wrote detailing a sexual assault he had committed. The document was admitted into evidence.

         The judge later signed an order that:

• found that Father was G.N.M.'s biological father;
• appointed Mother as G.N.M.'s sole managing conservator;
• appointed Father as G.N.M.'s parent possessory conservator; and
• granted Father supervised visitation with G.N.M. for two hours on the first, third, and fifth weekends of each month.

         The order granted Father no relief on his defamation claim.

         The judge also signed a protective order concerning all documents Molett had produced in the litigation. The order provided that the documents (i) "may be used or shown only to the parties to this case, their attorneys and judges and court personnel" and (ii) "shall [not] be released, disseminated, shown to, or copied, nor contents revealed to, any other person, firm or corporation."

         Father filed a motion for partial new trial and for rehearing regarding the protective order. Father asked the court to order Mother to (i) return all copies of the Molett documents to Father and (ii) delete any electronic copies. The trial court held a hearing and denied the motion.

         Father timely appealed.

         II. Issues Presented

         Father presents three issues:

1. The trial court abused its discretion by ordering Father's possession of G.N.M. to be supervised because there was insufficient evidence that Father was a danger to the child.
2. The trial court abused its discretion in its conservatorship appointments because Mother did not rebut the presumption that the parents should be appointed joint managing conservators.
3. The trial court erred by allowing Mother to retain possession of certain federally protected information beyond the end of this SAPCR.

         III. Analysis

         A. Issue One: Did the trial court abuse its discretion by requiring Father's possession of G.N.M. to be supervised?

         1. Standard of Review and Applicable Law

         We review a trial court's order regarding child possession and visitation for abuse of discretion. In re L.C.L., 396 S.W.3d 712, 716 (Tex. App.-Dallas 2013, no pet.). A trial court abuses its discretion if it acts arbitrarily and unreasonably without reference to any guiding principles. Id. Under this standard, legal and factual sufficiency of the evidence are not independent grounds of error but are factors relevant to our abuse of discretion assessment. Id. If some substantive and probative evidence supports the trial court's judgment, we will not substitute our judgment for the trial court's. Id. The trial court is in the best position to observe the witnesses and their demeanor, and we give the court great latitude in determining a child's best interest. In re N.F.M., No. 05-15-01232-CV, 2016 WL 6835721, at *3 (Tex. App.-Dallas Nov. 3, 2016, no pet.) (mem. op.).

         "The best interest of the child shall always be the primary consideration of the court in determining . . . possession of and access to the child." Tex. Fam. Code § 153.002. In determining a parent possessory conservator's terms and conditions for possession of a child, the court shall be guided by the guidelines in Family Code Chapter 153, Subchapter E. Id. § 153.192(b). Those guidelines direct the trial court to consider "(1) the age, developmental status, circumstances, needs, and best interest of the child; (2) the circumstances of the managing conservator and of the parent named as a possessory conservator; and (3) any other relevant factor." Id. ยง 153.256. An order ...


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