Appeal from the 300th District Court Brazoria County, Texas
Trial Court Case No. 68312
consists of Justices Higley, Massengale and Lloyd.
RUSSELL LLOYD JUSTICE
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
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.
Allegations of Abuse and Petitions Seeking Modification of
SAPCR  Order or Termination of Parental
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.
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.
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.
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. The trial court also temporarily enjoined
Mother and Father from "allowing [H.C.C.] to have
physical contact with the parties['] genitals, breasts or
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.
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."
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.
requested a jury trial on August 8, 2012.
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.
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.
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."
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.
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.
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.
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
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.
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
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
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.
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
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
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."
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.
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
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,
of Jury Trial
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
Standard of Review ...