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In re M.C.

Court of Appeals of Texas, Sixth District, Texarkana

May 6, 2019


          Date Submitted: April 18, 2019

          On Appeal from the 307th District Court Gregg County, Texas Trial Court No. 2013-1333-DR

          Before Morriss, C.J., Burgess and Stevens, JJ.



         Mother and Father divorced in 2013 and were appointed joint managing conservators of their three children, Karen, Maegan, and Clint.[1] In 2016, Mother petitioned the trial court to modify the parent-child relationship by denying Father's access to their children on the allegation of family violence. In August 2018, the trial court found the allegation of family violence true, but granted Father access to Maegan and Clint on modified terms.[2] On appeal, while Father raises no complaint about the terms of his access to Maegan, he argues that the trial court abused its discretion in denying his request for a standard possession order as to Clint. We find no abuse of discretion in the trial court's order and affirm the judgment.

         I. Factual Background

         Karen testified that Father lived in Midland, Texas, after the divorce and hosted parties during their visits with him. Karen informed the trial court that she, Maegan, and Clint would walk into Father's home at almost every visit to find beer cans on the coffee table, the trash can full of empty beer cans and boxes, and strangers partying. Karen testified that Father, who drank a lot of alcohol, had sex with other women, "almost g[o]t into fights" with others, and said "awful things" to her, Maegan, and Clint during their visits.[3]

         Karen explained that she had to assume the parental role when visiting Father, that he did not have food in the house for them, and that she would have to call Mother to have pizza delivered. She recalled an occasion when she had "to split a package of ramen between the three of" them. Karen also stated Father inappropriately "grabbed [her] by the waist and put his hands almost to [her] bottom" while demanding that she kiss him despite her repeated refusals. She next testified about the incident of violence on July 8, 2016, that prompted Mother's petition to modify the parent-child relationship.

         Karen testified that Father left her, Meagan, and Clint without informing them of when he would return. Thirty minutes after his absence, Karen texted Father and told him she was leaving if he did not return in an hour. According to Karen, Father returned twenty minutes later and called her "the 'B' word," which prompted Karen to walk to the room she shared with Maegan and Clint to call Mother. Karen testified that Father came into the room occupied by all the children and strangled Maegan. She said,

[Father] just grabbed [Maegan] by the neck in, like, a chokehold and he pulled her off the bed and holds her there for a second. And I see [Maegan's] face get red and see her banging on his arm telling him to let go and then I notice her face getting red and she started to get really red and I could tell that she was struggling. And then he drug her across the hallway . . . dropped her inside of his bedroom and then shut the door behind him.

         When she tried to intervene, Karen testified Father grabbed her arm and asked if she "want[ed] to be next." Karen pushed Father off her, called Mother again to report what happened, packed, and drove away with Maegan and Clint to their aunt's home. According to Mother, Clint saw the choking incident and was "bawling and scared shaking" when they arrived at their aunt's home. Fifteen minutes later, the children "headed straight to the police station" to report the incident. A photograph of Maegan's red neck taken on that day was admitted into evidence. Mother testified that it was in Clint's best interests for any visits with Father to be supervised.

         Father testified that, although he consumed alcohol, it did not impair his judgment when he was around the children. He added that he was "just playing around, wrestling" when he grabbed Maegan, that it was possible that he had grabbed her too tight, but could not otherwise explain the red marks on Maegan's neck. Father acknowledged Karen's concern about his "[d]rinking problem," and "[a]nger problem," but did not believe he currently had those problems. Father's fiancé testified that she had been around Father and his children three or four times and believed Father's relationship with them was good. Father's fiancé testified she was at Father's home when the alleged choking incident occurred and did not witness Father assault Maegan.[4]She testified that Karen and Maegan wanted to leave, but that Clint wanted to stay.

         Clara Hunter, a licensed professional counselor at the Women's Center of East Texas, testified that she counselled both Karen and Maegan, who both exhibited signs of post-traumatic stress disorder after the choking incident. That said, Hunter testified that she also visited with Clint, who wanted to see Father. Robert Neibert testified that he assisted the trial court by supervising visits between Father and Clint and characterized those visits positively.

         Father informed the trial court that he worked fourteen days in a row, followed by seven days off, and wished to see Clint during those seven days. Father understood that Clint might be uncomfortable with initial visits, and testified he was agreeable to a "step up situation" comprised of four-hour unsupervised visits on the Saturdays he was available, followed by eight hours unsupervised on available Saturdays in August and September 2018, and then overnight Saturday visits in October through November. Father testified ...

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