Court of Appeals of Texas, Fourth District, San Antonio
the 45th Judicial District Court, Bexar County, Texas Trial
Court No. 2017-CI-10408 Honorable Karen H. Pozza, Judge
Sitting: Patricia O. Alvarez, Justice Luz Elena D. Chapa,
Justice Irene Rios, Justice.
Mendez appeals the trial court's judgment in a divorce
action. In four issues, Mendez argues the trial court abused
its discretion by (1) denying her motion for continuance, (2)
proceeding to trial without the presence of the Office of the
Attorney General, (3) precluding the amicus attorney from
complying with her obligations under the Texas Family Code,
and (4) appointing her former husband, Jeremy Delgado, sole
managing conservator of their sixteen-month-old child, C.S.D.
and Delgado were married in Bexar County, Texas. About ten
months later, Mendez gave birth to C.S.D. When C.S.D. was
only eight months old, Delgado filed a petition for divorce
and Mendez filed a counter-petition. The trial court issued
temporary orders regarding C.S.D.
initial temporary orders, the trial court appointed Mendez
and Delgado temporary joint managing conservators of C.S.D.
and restricted C.S.D.'s residence to Bexar County.
Delgado, who was working in Las Vegas, Nevada, was granted
possession of C.S.D. on weekends when he came to San Antonio,
Texas, and Mendez was granted possession of C.S.D. at all
other times. The trial court appointed an amicus attorney to
investigate and report to the trial court concerning
C.S.D.'s best interest. The trial court also ordered both
Mendez and Delgado to participate in psychological
reviewing the results of the psychological evaluations, the
trial court modified its temporary orders to limit
Mendez's contact with C.S.D. to supervised visits. These
visits were to be monitored by a non-relative third party,
either Kids Exchange or Guardian House. Under the modified
temporary orders, C.S.D. was required to live with his
paternal grandmother in San Antonio, and Delgado was granted
possession of C.S.D. on weekends and other times when he was
in San Antonio. Additionally, if Delgado was unable to travel
to San Antonio for a weekend, C.S.D was permitted travel to
Las Vegas for a weekend visit with Delgado.
case was set for a final trial on the merits. Five days
before trial, Mendez filed a motion for continuance, stating
she was "in therapy and making substantial progress and
recovery," but was seeking an indefinite continuance of
the trial to "allow her a full recovery."
Additionally, Mendez filed a motion for further modification
of the temporary orders.
day of trial, Mendez announced "not ready" for
trial, but "ready" on her motion to further modify
the temporary orders. Mendez's counsel informed the trial
court that Mendez had "some mental issues," but
that she had been on medication, was in therapy, and was
making "great strides." However, counsel stated
Mendez "needs a little bit more help" and
"requiring her to go to court today to finalize this
matter, for a 16-month old baby, is not in the best interest
of the child." The trial court asked counsel how much
additional time Mendez needed, but counsel could not say. The
trial court denied the motion for continuance.
trial, Delgado, Mendez, and several other witnesses
testified. The evidence showed that Mendez and Delgado had
met and married in Bexar County, Texas. After the couple
married, Delgado obtained a promotion at work and relocated
to Las Vegas, Nevada. Mendez remained in San Antonio until
after C.S.D.'s birth, and then Mendez and C.S.D. joined
Delgado in Las Vegas.
in Las Vegas, Mendez started exhibiting troubling behavior.
Delgado testified that Mendez "started to get really
violent with me, really paranoid, constantly thinking is this
the right child, and then just sometimes violent in the
middle of the night, and just at random times whenever she
would get angry, she would get violent." Mendez
physically attacked Delgado-hitting him, scratching him,
grabbing him, pulling his hair, and pushing him. On multiple
occasions, Mendez attacked Delgado while he was holding
C.S.D. According to Delgado, Mendez "was not afraid to
push me down with the child in my arms or try to take a
swing at me with the child in my arms." After several of
these attacks, Delgado called the police and Mendez was
arrested twice. Delgado further testified that when Mendez
became aggressive she "didn't care about
anything;" "she didn't care if she broke
something, she didn't care if she hurt someone, she
didn't care what the cops said." One day, while
Delgado was at work, Mendez took C.S.D., boarded a bus, and
returned to San Antonio. Mendez did not tell Delgado that she
and C.S.D. were leaving Las Vegas.
the divorce action was filed and temporary orders were
issued, Mendez was diagnosed with schizophrenia and was
prescribed medication. According to Mendez's parents,
Mendez benefitted from the medication because it made her
more focused. Notwithstanding her improved condition, Mendez
rarely exercised visitation with C.S.D. under the modified
temporary orders, which required Mendez to initiate her
supervised visits with C.S.D. In a three-month period, Mendez
initiated and attended only two visits with C.S.D.
hearing all the evidence, the trial court granted the divorce
and appointed Delgado sole managing conservator and Mendez
possessory conservator. The trial court filed ...