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In re H.C.C.

Court of Appeals of Texas, First District

December 21, 2017


         On Appeal from the 300th District Court Brazoria County, Texas Trial Court Case No. 68312

          Panel consists of Justices Higley, Massengale and Lloyd.



         In nineteen issues, appellant, R.C.C., Jr. (Father), is appealing a final judgment naming him and appellee, W.J.M.C. (Mother), as their child's joint managing conservators and granting Mother the exclusive right to determine the child's primary residence. We modify Father's child support obligation and affirm the trial court's order as modified.


         Mother and Father were divorced on November 23, 2009. The divorce decree named Mother and Father as H.C.C.'s joint managing conservators, gave Father the right to determine the child's primary residence, and ordered a standard possession order for Mother. Father remarried in 2011.

         A. Allegations of Abuse and Petitions Seeking Modification of SAPCR [1] Order or Termination of Parental Rights

         Father filed five complaints against Mother with Child Protective Services after their divorce. The first three complaints coincided with Father's filing of petitions to modify the divorce decree and/or seeking termination of Mother's parental rights to H.C.C.

         Father filed a complaint against Mother with CPS on March 8, 2012, alleging that she had physically abused H.C.C. because the boy had returned from her home with a scratch on his eyelid and, on multiple occasions, bruises on his arms that could have been the result of Mother forcefully grabbing him. Father hired therapist Kendra Sullivan on March 28, 2012, to treat H.C.C. and determine whether any abuse had occurred.

         On April 11, 2012, Father filed a petition seeking to modify the divorce decree's standard possession order in which he raised the same allegations of physical abuse that he had raised in his March 8, 2012 complaint to CPS. He further alleged that H.C.C., who was five-years old at the time, had informed him that Mother breast feeds him. Mother filed a counter-petition on April 24, 2012, seeking, among other things, sole managing conservatorship of H.C.C. Both parties also requested injunctive relief.

         After a hearing on April 26, 2012, the trial court entered temporary orders on May 24, 2012 that awarded Mother supervised visitation until November 2, 2012, when her visitation schedule would revert to the standard possession order set forth in the divorce decree. The trial court also ordered Mother, Father, and Stepmother to register and attend a parent education and family stabilization course and submit to random drug testing at the request of another party. Mother was also ordered to attend an anger management course.[2] The trial court also temporarily enjoined Mother and Father from "allowing [H.C.C.] to have physical contact with the parties['] genitals, breasts or anus."

         The CPS caseworker who investigated Father's allegations interviewed Mother, Father, Stepmother, H.C.C.'s elementary school principal, his pediatrician, Sullivan, and others. The caseworker's file reflects that H.C.C. did not make any outcries of abuse to her or anyone other than Father, Stepmother, his paternal grandmother, and Sullivan. H.C.C. did, however, tell Sullivan in April 2012 that Mother bathed with him and grabbed him forcibly on his arms. He also "admitted to sucking on his mother's breast, " and stated that Mother had told him to stop doing it. He also informed Sullivan that he did it when he was a baby and that he liked doing it. Sullivan told CPS that she considered this inappropriate behavior, not sexual abuse.

         CPS noted in its report that "[d]ue to the pattern of bruises [as evidenced by the fifteen photographs of H.C.C. that were provided by Father] and the father's and step-mother's insistence that the child was making outcries of abuse/neglect to others and not to the investigator, the case was sent to the Forensic Assessment Center Network for review." The doctor at the Forensic Assessment Center Network who reviewed the case, including the photographs of H.C.C. taken by Father, informed CPS that he "strongly suspect[ed] physical abuse." The CPS caseworker determined "[d]ue to the evidence of physical abuse between the mother and [H.C.C.], the mother could be considered an inappropriate caregiver."

         CPS closed the March 2012 case on May 8, 2012, and informed the parties that CPS had found that there was a reason to believe that Mother had physically abused H.C.C.

         Father requested a jury trial on August 8, 2012.

         After a hearing on August 23, 2012, the trial court rendered an agreed order modifying the divorce decree on October 2, 2012. The October 2012 Order awarded Mother visitation in accordance with the standard possession order beginning on October 2, 2012.

         Father filed a second complaint against Mother with CPS on November 21, 2012, alleging that similar instances of physical and sexual abuse had occurred since October 2, 2012. Five days later, Father filed a petition to terminate Mother's parental rights based on the same allegations raised in his complaint to CPS. At Father's request, the trial court issued a restraining order against Mother. After learning that his first expert, Sullivan, could not give an opinion as to whether any abuse occurred after October 2, 2012, Father non-suited his petition in December 2012, and Mother regained visitation with H.C.C.

         After sending H.C.C. to be interviewed at the Children's Assessment Center and speaking with H.C.C., Mother, Father, Stepmother, Sullivan, and others, CPS notified the parties on January 25, 2013 that it had concluded its investigation in the November 2012 case and "ruled out" Father's allegations of abuse, i.e., CPS found that it was "reasonable to conclude that the alleged abuse or neglect did not occur."

         Father hired a new expert, psychiatrist Dr. Harvey A. Rosenstock, to evaluate H.C.C. in December 2012. After Dr. Rosenstock informed him that Mother had sexually and emotionally abused H.C.C. in late December 2012, Father filed a third CPS complaint on February 6, 2013. In his affidavit attached to Father's February 2013 petition, Dr. Rosenstock averred that, after reviewing photographs of bruises on H.C.C., it was his opinion that the photographs showed "pinch" bruises on H.C.C.'s arms, and he opined that the boy had been sexually, physically, and mentally abused by Mother. Dr. Rosenstock later testified at trial that, in his opinion, Mother sexually abused H.C.C. by forcing the child to suck on her breasts and she emotionally abused him when she told him that she wanted Stepmother to be killed by a tornado. Dr. Rosenstock testified that H.C.C. had never made any direct statements to him about any physical abuse.

         CPS closed this case within a matter of days because the agency determined that it had already addressed Father's allegations during its prior investigation in which it had ruled them out.

         Father filed another petition on February 13, 2013, requesting that the court either terminate Mother's parental rights or restrict her to supervised visitation. The petition is based on the same allegations of abuse raised in Father's February 6, 2013 complaint to CPS. Father also got a restraining order against Mother. Pursuant to an agreed order between the parties, Mother was placed on supervised visitation on February 28, 2013.

         Father filed a fourth complaint against Mother with CPS on April 24, 2013, raising similar allegations of sexual abuse. As with the February 2013 complaint, CPS closed this case within days because it had already addressed Father's allegations during its November 2012 investigation and ruled the allegations out.

         On June 26, 2013, the trial court adopted a Rule 11 agreement between Mother and Father in which the parties had agreed to have Father's allegations independently evaluated. Because the original doctor that Mother and Father had agreed would conduct the evaluation was no longer accepting clients, the court appointed Dr. Carmen Petzold to investigate and assess whether any inappropriate sexual behavior has occurred between Mother and H.C.C., including considering if either parent or step-parent has coached or otherwise influenced the child. The court ordered Mother and Father to cooperate with Dr. Petzold and to each pay fifty percent of the costs for Dr. Petzold's services.

         On November 1, 2013, Mother filed a counter-petition seeking sole managing conservatorship and supervised visitation for Father. In her affidavit attached to the petition, Mother averred that "[a]t the behest of the Amicus and in accordance with my belief that things would be resolved in an expedited fashion I have agreed to restricted access to my child. It has now been weeks and I feel like [Father] is merely stalling the process because I am not seeing our child on a regular basis." Mother also requested a temporary injunction against Father based on the facts set forth in her affidavit.

         Although Dr. Petzold had not completed her report, the trial court entered agreed temporary orders on June 23, 2014, awarding Mother unsupervised visitation in accordance with the standard possession order and possession for the month of July 2014.

         During trial, Dr. Petzold testified that she had met with Mother seven or eight times, beginning on May 22, 2013, and that she needed to address one issue with Mother relating to her prior substance abuse. According to Dr. Petzold, Father did not come to her office until July 11, 2013, and he did not return for a second appointment until the next spring. She also testified that it was possible that Father had contacted her during the intervening months to schedule additional appointments, but she would need to check her records to confirm. She also testified that Mother provided her with some documentation, whereas Father had not, and that Mother paid her almost $2, 000 and Father had paid her $700.

         According to Dr. Petzold, she needed to finish her work with the parents and review all of the CPS records and the CAC interview before meeting with H.C.C. Dr. Petzold testified that she never received a full copy of the CPS records and that she only had documents showing that the allegations had been ruled out. Dr. Petzold also testified that she could not give an opinion in this case without reviewing these records, meeting with H.C.C., and observing H.C.C. with each of his parents.

         On September 4, 2014, Mother filed a motion for temporary orders in which she alleged that Father had been arrested and charged with domestic violence that occurred while he was living with Stepmother. She further alleged that although Father and Stepmother initially separated and Father moved out of their home, they have since "reconciled and the child is back into the same home environment where the violence occurred."

         On September 13, 2014, Father filed a fifth complaint against Mother with CPS alleging that she had physically abused H.C.C. during a weekend visit because the boy had returned from Mother's house with bruises on his arms and his eye was swollen. H.C.C. was diagnosed with pink eye. After speaking with H.C.C.'s school nurse, CPS closed that case because the agency determined that it "[d]oesn't appear to involve abuse, neglect, or risk."

         Father filed a jury demand on October 27, 2014, and a supplemental petition dropping his request to terminate Mother's parental rights on October 31, 2014.

         B. Trial

         After denying Father's request for a jury trial, a bench trial was held in the current modification suit on November 12, 17, 19 and 20, 2014. Mother, Father, Dr. Rosenstock, Mother's mother, Dr. Petzold, and a CPS representative testified at trial.

         At the conclusion of the trial, the court denied the parties' requests for sole managing conservatorship, and appointed Mother as the joint managing conservator with the right to establish H.C.C.'s primary residence and the exclusive right to make educational decisions and psychological decisions for the child. Father appealed and requested Findings of Fact and Conclusions of Law. The trial court issued Findings of Fact and Conclusions of Law on May 29, 2015.

         Denial of Jury Trial

         In his first issue, Father argues that the trial court abused its discretion by denying his timely request for a jury trial. Mother argues that Father was not entitled to a jury trial because Father's October 27, 2014 jury demand was untimely, and the 2012 Order was a final order, and therefore, the court could not consider Father's August 8, 2012 jury trial request for purposes of the current modification proceeding.

         A. Standard of Review ...

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