Appeal from the County Court at Law Washington County, Texas
Trial Court Case No. CCL5068
consists of Justices Lloyd, Landau, and Countiss.
Katie Schmidt Obernhoff ("Katie"), challenges the
trial court's August 22, 2017 Order in Suit to Modify
Parent-Child Relationship, entered after a bench trial,
granting the counter-petition, filed by appellee, Daron Lynn
Nelson ("Daron"), to modify an order in a suit
affecting the parent-child relationship. In five issues,
Katie contends that the trial court erred in modifying the
existing order in a suit affecting the parent-child
relationship, relying on the guardian ad litem's
testimony and report, failing to disclose its identity when
conferring with the minor child, issuing temporary orders,
denying an evidentiary hearing related to Katie's motion
for new trial, and denying her emergency motion for an
evidentiary hearing on Katie's motion for new trial to
present newly discovered evidence.
2004, Katie gave birth to her and Daron's minor child,
C.N. On October 15, 2012, the trial court signed an Order in
Suit to Modify Parent-Child Relationship (the "2012
order"). The 2012 order appointed Katie and Daron as
joint managing conservators and named Katie as the joint
managing conservator with the exclusive right to designate
C.N.'s primary residence. The order also provided that
Katie had the sole exclusive control over a custodial account
held for C.N. by Katie and Daron. The funds placed into that
account were to be used solely for C.N.'s education, and
Katie was required to obtain written permission from Daron to
withdraw the funds for any other purpose.
Petition to Modify the Parent-Child Relationship, filed on
December 2, 2015, Katie alleged a material and substantial
change of circumstances since the 2012 order and that
modification of that order would be in the best interest of
C.N. In regard to modification, Katie requested that she and
Daron be appointed as joint managing conservators, that she
be named the conservator with the exclusive right to
designate C.N.'s primary residence, and that Daron only
be allowed supervised visitation with C.N. because Daron had
allegedly been physically abusive toward C.N. Katie requested
temporary orders and a temporary restraining order and sought
an injunction. In an affidavit attached to her petition,
Katie stated that possession of C.N. by Daron would endanger
C.N.'s physical health and significantly impair his
emotional development. According to Katie, Daron had made
verbal threats of abuse directly to C.N., C.N. told Katie
that Daron had struck him, which Daron had classified as an
accident, and Daron had directed derogatory statements toward
C.N. As a result, Katie alleged that C.N. did not want to be
in Daron's possession.
December 16, 2015, Daron filed a Counter-Petition to Modify
the Parent-Child Relationship and a Counterclaim for
Enforcement of Possession or Access. Daron alleged a material
and substantial change of circumstances since the 2012 order
and that modification would be in the best interest of C.N.
Daron requested that he and Katie be appointed as joint
managing conservators, that he be named the conservator with
the exclusive right to designate C.N.'s primary
residence, and that he no longer be required to pay child
support to Katie. Daron requested temporary orders and sought
April 19, 2016, after a hearing, the trial court entered
temporary orders, appointing Katie and Daron as temporary
joint managing conservators, naming Daron as the joint
managing conservator with the exclusive right to designate
C.N.'s primary residence, and ordering Katie to pay child
support to Daron.
trial, Katie testified that she is currently married to Erich
Oberhoff ("Erich") and has two children, C.N. and
Z.O. At the time of trial, C.N. was twelve years old and Z.O.
was two years old. According to Katie, Z.O. was born in July
2015 and had colic, which caused her to cry and fuss
constantly. Katie described Z.O. as inconsolable. Z.O. also
had jaundice and a broken collarbone at birth, and right
after Z.O. was born, Katie "went two weeks straight with
no sleep." In fact, there were many instances in 2015
when Katie was sleep deprived. Although Z.O. outgrew her
colic at about six months old, she was still a "high
maintenance" child, which caused stress. Katie explained
that it was difficult for her to manage C.N. and Z.O. at the
same time, especially because Erich was away from the home
for two weeks at a time for work. Katie believed that she was
suffering from postpartum depression in 2015. At the time,
she felt anxious, stressed, overwhelmed, and hopeless.
regard to her mental health history, Katie noted that at
times in the past she was treated for depression, although at
the time of trial, she stated that she was not suffering from
depression. Katie testified that in 2012 she began
seeing a counselor, T'Shana Everitt. In October 2012,
Katie went to the emergency room because she was depressed
and she had attempted to cut herself on her leg with a butter
knife. She spent four or five hours in the emergency room and
she did not tell her family, although she asked Daron to
watch C.N. Katie explained that during that time, and for
approximately two years, she did not get along with her
parents because she was "going through a lot." She
"had Daron back in [her] life, [she] had . . .
migraines, health problems, [she] met Erich, [she] lost
jobs[, ] and . . . then [she] started having problems with
Erich." In 2016, Katie saw another counselor for
approximately a month and she saw a psychologist who
"gave [her] some sleeping medicine."
regard to Erich, Katie explained that when Z.O. was born in
July 2015, she and Erich were in a "rocky" and
unstable relationship, and they were not married. In spring
2016, after the trial court issued its temporary orders in
the instant case, Katie ended her relationship with Erich.
Katie explained that the difficulty of raising and taking
care of Z.O. had put a stress the relationship.
further testified that although Erich has never hit her,
during the course of their relationship, she called law
enforcement officers "on Erich" six occasions. The
first time that she called for emergency assistance, Erich
went to jail. In that instance, Erich came home angry,
started yelling at Katie, and hid her keys and her cellular
telephone. When Katie went out to her car to call for
emergency assistance, Erich tried to stop her by pulling her
out of the car. Katie fell in "sticker burrs," and
then ran inside their home, found her cellular telephone, and
called for emergency assistance to "come settle [her and
Erich] down." C.N. was not present at the time. The
second time that Katie called for emergency assistance it was
related to a verbal argument between her and Erich, and C.N.
was not present. However, the third time that Katie called
for emergency assistance, related to a verbal argument
between her and Erich, C.N. was present. The last time that
she had called for emergency assistance regarding Erich was
in November 2015. Katie explained that she and Erich had
gotten into an argument and she was scared. In June 2016,
Katie requested a temporary restraining order against Erich,
and Katie testified that the statements she made in her
affidavit attached to her Application for a Temporary
Restraining Order and Temporary Injunction were truthful.
additionally testified that her relationship with Erich has
changed since 2015. In July 2016, she and Erich reconciled,
and they married in July 2017, shortly before trial. They now
have a mutually supportive relationship and do not argue.
Katie further explained that, after she and Erich reconciled,
they began attending couples counseling sessions once a week
with their counselor, Everitt, to "repair [the] past
and to move on for a healthier future." Eventually,
Katie and Erich transitioned to attending counseling sessions
once a month. Through counseling, Katie and Erich have
started to relate to each other differently and have learned
how to handle their disagreements. Although they still argue,
it had "been awhile" since they has an argument
where they yelled at each other. According to Katie, she and
Erich plan to have several more children.
regard to Erich's relationship with C.N., Katie testified
that Erich has strong affection for C.N. But, when asked
whether C.N. had affection for Erich, Katie stated:
"It's been rocky because he's been protective of
me, but he's a lot better." Katie explained that
C.N. was protective of her because he had seen her and Erich
argue in the past. However, in Katie's opinion, as her
relationship has improved with Erich, Erich's
relationship has improved with C.N. because C.N. no longer
feels the need to protect her from Erich. Katie wants C.N. to
have a good relationship with Erich.
further testified that she and C.N. have a close
relationship. Katie disciplines him and helps him with his
homework. After C.N. began living primarily with Daron in
spring 2016, Katie would have C.N. do his required reading
when he was in her possession, and in fall 2016, Katie took
him to a math tutor. Katie does not curse at C.N. or in front
of him. She also has lunch with him at school on certain
days, and C.N. is glad to see Katie during this time. Katie
believes that C.N.'s academics and school behavior are
important, but she thinks that C.N.'s emotional and
physical well-being is the most important thing. Further,
C.N. has a good relationship with Katie's parents and
sister, and Katie's mother has helped C.N. with his
homework in the past.
regard to C.N.'s schooling, in fall 2015, Katie moved
C.N. to a public middle school because they had
"resource" classes and C.N. was not doing well and
getting into trouble at his previous school. Katie testified
that C.N. would throw pencils at other students, talk during
class, and say curse words, and he told another student that
"he was going to get his dad to go over to his house and
beat him up." C.N. also had a problem listening to his
teachers. As a result of his behavior, C.N. received
detention and in-school suspension and he was "written
changing schools, C.N. was placed in a resource math class in
fall 2015, and in spring 2016, he was moved into a resource
reading class as well. After being in resource classes,
C.N.'s grades improved. In Katie's opinion, any
misbehavior that C.N. engages in at school is not related to
Katie or the time that C.N. spends with her. And according to
Katie, in both fall 2016 and spring 2017, C.N. was involved
in fights at school, and those fights did not occur on the
days that she had lunch at school with him. In spring 2017,
Katie called C.N.'s teachers to reach out to them. Katie
further stated that she had heard that while C.N. had been
living primarily with Daron, C.N. had gone to school without
taking his medication in the morning, and he would not turn
in his homework.
past, Katie has taken C.N. to visit with her counselor,
Everitt, who C.N. trusts and enjoys seeing. While living with
Katie, C.N. saw Everitt "off and on." However,
since C.N. began living primarily with Daron, he has only
seen Everitt nine times.
further explained that C.N. currently takes medication for
Attention-Deficit/Hyperactivity Disorder ("ADHD"),
which is prescribed by a psychiatrist. C.N. was diagnosed
with ADHD at an early age and has taken medication for
several years. Katie, her mother, and Daron's wife,
Danielle, took C.N. to see his current psychiatrist in
November 2015. Although it took several adjustments to get
the dosage correct for C.N.'s medication, C.N. has been
on the same dosage since February 2016. Since C.N. began
living primarily with Daron in spring 2016, Katie has been to
one appointment with C.N.'s psychiatrist, and according
to Katie, on one occasion she did not learn of C.N.'s
scheduled psychiatrist appointment until the night before.
Katie testified that C.N. was easier to discipline in 2016
due to his ADHD medication and not because he had begun
living primarily with Daron. Additionally, while Katie had
summer possession of C.N. in 2017, she gave him half of his
ADHD medication dosage "to try it out" and to see
how it helped him because, in the past, a doctor had told her
"that's what [she] can do." However, after
trying the lower dosage for a day, Katie resumed giving C.N.
his full dosage of ADHD medication.
also noted that in August 2015 she took C.N. to an inpatient
psychiatric facility, where he stayed for six nights. Daron
and Danielle were "[n]ot fully [aware] at first"
with "what was going on" when C.N. was taken to the
inpatient facility, but ultimately Katie informed them. The
inpatient facility recommended that C.N. be taken off his
ADHD medication until he saw a psychiatrist, which C.N. did
not do until November 2015. Thus, C.N. was not taking any
ADHD medication for approximately three months. Without his
ADHD medication in fall 2015, C.N. "act[ed] up"
more and was difficult to raise.
C.N. was previously in her care, Katie admitted that she had
spent "most of 2015 working on [her] relationship with
Erich" and "put [C.N.] on the back burner."
And she sent C.N. to live with her parents for a considerable
amount of time in 2015 because C.N. was comfortable with her
parents. However, on one occasion while C.N. was in
Katie's home, C.N. told Katie that he was going to the
house next door, but instead he "went to the street over
and tried to go play on someone's basketball goal."
C.N. then walked into an unknown person's house
"like he knew [him]," and a firefighter brought
C.N. back to Katie. Katie admitted that it was "very
hard" for her to discipline C.N. in 2015.
regard to C.N.'s extracurricular activities, Katie
testified that although C.N. played football in fall 2016,
she only attended one game, and she did not take C.N. to
practices. Further, Erich was involved in football with C.N.
for about a month; because Daron then called Katie and told
her that "Erich got kicked off the team," which the
coach denied. Katie opined that C.N. did not enjoy football
and he was not very good at it.
to C.N.'s relationship with Z.O., Katie stated that C.N.
loves Z.O. and likes spending time with her. Katie testified
that she can manage both C.N. and Z.O. at the same time now,
and she is able to care for C.N.'s needs. Katie, Erich,
and Z.O. currently live a home that is owned by Erich. And
Katie's parents helped make the down payment for that
house. It has "almost five bedrooms," and C.N.
would have his own room if he began living primarily with
Katie again. However, the home is also "for sale,"
and she and Erich may move to Austin or "to the
country." Katie noted that if C.N. began living
primarily in her home again, her sister or mother could help
her in an emergency.
Katie's opinion, C.N. needs a stable environment and it
would be in the best interest of C.N. to live primarily with
her. However, since 2012, she has moved multiple times. In
2012, she and C.N. lived with her parents, then she moved to
a house on "Moss Road" for two years. Subsequently,
Katie and C.N. stayed with Erich's father for a couple of
weeks; they "didn't move in," they "just
stay[ed] there until [she] figured out where [they] were
going." Katie and C.N. then moved back into Katie's
parents' home for approximately a year. At some point,
Katie also lived, without C.N., in the home of Erich's
mother, although she could not recall when that had occurred
and for how long she had stayed there. Katie then moved back
into her parents' home and subsequently moved into a
"rent house in Burton." C.N. lived with her at that
time, and they stayed at the "rent house in Burton"
for two months. Katie, C.N., and two of Katie's friends
then "moved [in]to another rent house in Burton."
Katie and C.N. thereafter moved back into Katie's
parents' home, and in March 2015, she moved into a home
that Erich had purchased. While Katie lived at Erich's
home in 2015, C.N. would stay at the house with Katie three
or four nights a week on the weeks that Erich was away for
work. During the other times, C.N. would stay with
Katie's parents because she "just didn't want
that conflict around."
spring 2016, after C.N. began living primarily with Daron,
Katie moved back into her parents' home. And she then
moved into the home of her friend, Jessie House, and then
back into her parents' home, before finally moving back
into Erich's home once they reconciled. Katie testified
that C.N. did not stay with her at House's home when he
was in her possession, rather she and C.N. would stay at
Katie's parents' home during those times. On one
occasion, she stayed at a motel with C.N. because they
"wanted to just spend time together."
currently works as a part-time bookkeeper for both her
sister's restaurant and another business. Katie earns $12
an hour, and she works approximately twenty hours per week.
This is her only source of income. Since February 2016, Katie
has received training in phlebotomy and as a certified
nursing aide. Within the last year before trial, Katie had a
full-time job as a secretary for a business but quit because
Z.O. was getting sick frequently at daycare. Katie has been
unable to find a job as a phlebotomist, and she has no plans
to use her training in phlebotomy to find work in the area.
However, Katie enjoys "QuickBooks" and would like
to do "some kind of accounting thing." At one point
in time, Katie also worked at a nursing home. And since 2012,
Katie has worked at a bowling alley, two accounting firms,
her sister's restaurant twice, and a mattress store, and
she attempted to sell birds on her own and without success.
Katie also has "a clothing boutique trailer," from
which she is not receiving any income. Katie she has had
approximately nine jobs since October 2012, but Erich's
income is sufficient to support himself, Katie, and Z.O.
Katie's parents pay her child support obligation.
respect to Daron, Katie testified that during a November 2015
telephone call (the "November 2015 telephone call")
between Daron and C.N., Daron said: "[P]ut that [f]-ing
brat on the phone," referring to C.N. Katie stated that
the telephone call was not a "setup" by her, and
she was "in and out" of the room when C.N. was
speaking to Daron because she was caring for Z.O. at the
also stated that she has seen Daron yell at C.N. at times
other than just during the November 2015 telephone call. For
instance, at a rodeo, C.N. fell off of a horse and Daron was
angry and said that "he was going to kill [C.N.]'s
horse," which upset C.N. According to Katie, she has
seen C.N. act afraid of Daron, but also not act afraid of
Daron, i.e., "sometimes he acts fearful and sometimes he
acts happy or excited." Further, although Katie did
believe that C.N. was afraid of Daron, she admitted that she
did allow Daron to see C.N. more often than the terms
prescribed by the 2012 order because she was "going
through so much for years."
wants C.N. to have a good relationship with Daron and
Danielle. And Katie hopes that Daron wants C.N. to have a
good relationship with her; however, at one
"drop-off" of C.N., Daron argued with and yelled
and cursed at Katie in front of C.N. According to Katie, in
two out of ten "drop-off" meetings, Daron has
confronted her in some way. And he sometimes "make[s]
[her] look bad in front of" C.N. For instance, in fall
2016, Daron yelled at Katie and "told [her] that he
under[stood] why Erich left [her] stupid ass," while
C.N. was present. Katie noted that she had tried not to
disparage Daron in front of C.N., but that Daron had
disparaged her on one or two occasions since March 2016. At
the time of trial, she and Daron were no longer communicating
by telephone or text message. Katie opined that it would be
good for C.N. to see his parents communicating in a civil
manner. However, Katie also explained that on one occasion
when Danielle had asked her to drop C.N. off for a football
game, she did not do so because she was "waiting for
[Daron] to text [her] about th[e] situation," not
Danielle. Katie further noted that while in Daron's care,
C.N. got "a huge gash in his foot" that was not
properly treated, and Katie took C.N. to the emergency room
because it was "swollen black and
additionally testified that in 2014, she borrowed money from
Daron and Danielle because she was depressed. Katie has
repaid $2, 000 to Daron, and she intends to pay him the
remaining amount owed. Katie also noted that in the past she
has taken money out of C.N.'s custodial account for
purposes other than C.N.'s education, such as to pay for
her monthly expenses. For instance, at one point of time
after the 2012 order was entered, Katie signed a lease on a
house, but then lost her job. Daron then told her that she
could use the funds in C.N.'s custodial account to
"finish getting the furniture for [her] home and pay the
bills until [she] found a job." And she and Daron had an
oral agreement that she would pay back the funds that she
took from the custodial account before C.N. turned eighteen
years old. Katie stated that she would start repaying the
money back into C.N.'s custodial account when "[her]
career start[ed] [to] happen."
trial court admitted into evidence at trial a copy of
Katie's May 16, 2017 psychological evaluation completed
by Dr. Lawrence Bramlette. At the time, Katie reported that
she had graduated from high school and had "obtained a
medical assistant degree in 2004." She was not currently
employed, and she had last worked at an electrician's
office for approximately one month. Katie was terminated from
that job because she missed work due to Z.O. being repeatedly
sick while at daycare. Katie reported that previously she had
worked as a waitress at her sister's restaurant and she
had been "let go from th[e] job," while she was
pregnant with Z.O., because the restaurant's business was
denied narcotics use or prescription medication abuse. And
she reported that "for the past two and one-half years,
she ha[d] consumed 3-4 beers at a sitting once every 3-4
months." Katie denied having a criminal history.
to her mental health history, Katie denied current feelings
of a depressed mood, but she also expressed "feeling
stressed and anxious and struggling with intermittent
feelings of hopelessness." And Katie admitted to
experiencing "clinically significant depressive symptoms
. . . on multiple occasions." Katie reported that she
had been depressed in 2013 and that the depressive episode
"lifted approximately two months" before her
evaluation. According to Katie, in 2014, she was depressed
and "felt [that] no one cared," so she cut herself
with a plastic knife because she wanted attention. (Internal
quotations omitted.) Katie was taken to the emergency room as
a result of the cutting incident. Katie also reported that
she had been participating in counseling sessions with
Everitt for six years. Regarding "Diagnostic
Impressions," the psychological evaluation lists:
"Major Depressive Disorder, Recurrent Episodes, In
Partial Remission"; "Unspecified Personality
Disorder"; "Sexual Abuse of Child"
(self-reported); and "Physical Abuse of Adult"
regard to Erich, Katie reported that their relationship began
in April 2012. Although Katie denied a history of physically
assaultive fighting or domestic violence, she stated that she
had "called the police on [Erich] on six
occasions," and Erich was incarcerated on one occasion
"on family violence related charges." Katie denied
witnessing or suspecting Erich of abusing, neglecting, or
otherwise mistreating C.N. However, Katie stated:
"[C.N.] doesn't like it when [Erich] yells at
me." (Internal quotations omitted.) Katie and Erich
began attending couples counseling sessions with Everitt in
August 2016, and at the time of her psychological evaluation,
they were attending one counseling session a month.
to her previous relationship with Daron, Katie reported that
they had separated approximately eighteen months after
getting married and divorced approximately one year later.
Katie reported that Daron had "physically abused her on
numerous occasions" and that "people saw bruises on
[her] all of the time." (Internal quotations omitted.)
According to Katie, during one incident, Daron
"attempted to suffocate her with a pillow," and
another time, he "punched her in the face three times in
a row." Katie never reported the incidents of domestic
violence. Further, Katie stated that Daron was emotionally
abusive toward her and would yell at her. Daron was
controlling and would not allow her to work. Daron was
"arrested on multiple occasions for violating a
protective order," and according to Katie, Daron
"abused alcohol on a daily basis."
regard to C.N., Katie reported that while he lived primarily
with her, he was current on his medical checkups and
immunizations. Katie's home was, and continued to be,
stocked with food, appropriately furnished, had all
utilities, and was "free from unsanitary or otherwise
inappropriate living conditions." He was exposed to
yelling arguments while in Katie's possession, but he was
not exposed to domestic violence or narcotics use. C.N. was
not abused or neglected.
during the 2014-2015 school year, while C.N. lived primarily
with Katie, he missed two to three weeks of school because
"he didn't feel good" and she "babied
him." (Internal quotations omitted.) Katie also reported
that C.N. was hospitalized at an inpatient psychiatric
facility for six days in August 2015 because "he had
flashbacks of [Daron] being mean." (Internal quotations
omitted.) According to Katie, Erich yelling at her is what
triggered the flashbacks.
regard to C.N.'s removal from her care, Katie reported
that she had been experiencing significant relationship
stress with Erich at the time and she was "putting
[C.N.] on the back burner and focusing on Erich . . . too
much." (Internal quotations omitted.) During that time,
Katie began going out with friends and drinking and she lost
her job. Katie also reported that she had borrowed $7, 000
from Daron because she had "become involved with
spiritualists," who claimed to practice a variation of
witchcraft. (Internal quotations omitted.) The spiritualist
told Katie that she needed to pay her $6, 000 to
"perform a ritual that would result in positive changes
in [Katie's] life." Katie gave the spiritualist $5,
000 and did not hear from her again. Katie stated that she
"still owe[d] Daron a lot of money."
further reported that since C.N. began living primarily with
Daron, he had adjusted poorly and was receiving failing
grades at school. In Katie's opinion, C.N. was
"terrified" of Daron and "hate[d]"
Danielle. (Internal quotations omitted.) Katie noted that she
was seeking to have C.N. returned to her primary care.
to C.N.'s "specific parenting needs," the
psychological evaluation concludes that at a minimum, C.N.
requires a stable home environment that is free from
significant parenting failures, including parent-sanctioned
school absences, volatile relationship dynamics, repeated
domestic disturbance calls to law enforcement officers, and
erratic parenting behaviors. Because of this, Dr. Bramlette
listed the following as areas of concern: Katie's report
that she had called law enforcement officers on Erich on six
occasions, with Erich being arrested on one occasion, because
it indicated a volatile relationship; Katie's report of
Erich yelling at her and the distress that it had cause C.N.,
particularly because Erich's yelling contributed to
C.N.'s inpatient psychiatric hospitalization; Katie's
report of borrowing $7, 000 from Daron and using the money
for a "spiritualist ritual," which constituted
erratic behavior and was indicative of poor judgment;
Katie's report of cutting herself for attention;
Katie's report of repeatedly allowing C.N. to miss school
because she "babied" him; and Katie's report of
C.N. being "terrified" of Daron and
"hat[ing]" Danielle and whether that was leading to
parental alienation issues. (Internal quotations omitted.)
Should C.N. resume living primarily with Katie, Dr. Bramlette
recommended that Katie participate in individual counseling
sessions and that Katie, Erich, and C.N. participate in
family counseling sessions. Dr. Bramlette lists in the
psychological evaluation specific goals for Katie related to
psychological functioning and parenting.
trial court admitted into evidence at trial a copy of
Katie's Application for a Temporary Restraining Order and
Temporary Injunction filed against Erich on June 15, 2016. In
her affidavit attached to her application, Katie testified
that she met Erich in April 2012 and they started dating. In
September 2012, Katie moved out of her parents' house and
into a rental house, and Erich moved in with her. Although
their relationship was stable for a couple of weeks,
"[a]fter one of [their] first arguments, Erich packed
his clothes and left." Erich came home the next morning
after the fight, but on many occasions "in the years
that [they had] lived together," when Erich would become
upset or angry, he would "just pack his bags and say
[that] he was done." (Internal quotations omitted.)
further testified that, early in their relationship, Erich
"would take [her] [tele]phone and keys to try and
prevent [her] from leaving during an argument." And on
one night, in November 2012, Erich came home and started
arguing with Katie. He then "tried [to] shov[e] nicotine
down [her] throat, pinned [her] down on the bedroom floor,
and tried to rip [her] shirt off." When Katie "got
away from him," she ran to her car to "call for
help." However, "Erich pulled [her] out of [the]
driver's seat [of the car] before [she] was able to
call." Katie "fell in sticker burs and was covered
in them." Katie eventually called for emergency
assistance and two law enforcement officers arrived. The
officers stated that "they had to take [Erich] in"
because he and Katie lived together. Erich later called her
"after being booked" and apologized and asked if
she "would take him back, again." Katie forgave him
and he "promised never to hurt [her] again." In
December 2012, Erich's family "started being
negative about [his and Katie's] relationship and blamed
[Katie] for [Erich] going to jail."
Moreover, Katie testified that in April 2014, Erich
"broke off" his relationship with Katie, and during
that time, Katie moved back in with her parents. Despite the
separation, Katie became pregnant with Erich's child,
Z.O., and they eventually reconciled.
to Katie, her father then made a down payment on a home for
her and Erich. However, because Katie "didn't have
good enough credit to back up the mortgage," the house
was put in Erich's name only. Erich and Katie moved into
the home in March 2015, when Katie was five months pregnant
with Z.O. Erich asked Katie to quit her job and
"promised to cover [her] expenses."
point, Erich found a job that required him to be gone for two
weeks at a time. When Erich was away for work, he would leave
Katie without any money to care for Z.O. Erich also
"started wanting to go out all the time," and this
made Katie the sole caretaker for Z.O.
further testified that in November 2015, Erich came to the
house late one night wanting to take Z.O. to his
brother's home. When Katie told him "no," Erich
tried to "snatch her from [Katie's] arms."
(Internal quotations omitted.) Katie then "loaded [C.N.]
and [Z.O.] in the car to get away from [Erich] because
[Katie] could tell that he was getting angry." As Katie
buckled Z.O. into her car seat, Erich pulled Katie from the
car door. C.N. told Erich to "leave [his] mom and sister
alone." (Internal quotations omitted.) And Erich left.
Afterward, Erich went back to "behav[ing] well for a few
weeks and then [he began] act[ing] threatening" again.
Erich ended his and Katie's relationship in March 2016.
additionally explained that, "Erich displays wildly
different behavior. He will threaten [her] and be hateful for
[a] couple weeks" and then "act nice." Katie
stated that she was afraid of Erich and his unpredictable
behavior, and Erich has said "degrading, belittling, and
slanderous comments" about Katie. Katie opined that it
would not be in Z.O.'s best interest to have unsupervised
visitation with Erich "due to his lack of
responsibility." And Erich and his family would not be
"positive influences in [Z.O.]'s life."
testified that he is married to Katie and he works on "a
drilling rig." Erich met Katie in 2012 and they started
living together, along with C.N., a few months after they
started dating. They have one child together, Z.O.
Erich, Katie, and Z.O. live in a four bedroom house with
space for C.N. When they were short on furniture at the
house, C.N. may have slept on the couch or in Katie's
bedroom while Erich was away. And for a certain unmentioned
length of time, C.N. did not have a bed at Erich's
house. In the past, C.N. had also lived with
Erich and Katie in the home of Erich's father, with all
three of them sharing the same room. In another house, where
Katie, Erich, and two of Katie's friends lived, C.N.
slept in the same room as Erich and Katie. However, according
to Erich, C.N. stayed about sixty percent of the time with
Katie's parents. Eventually, Erich purchased the home
where he and Katie now live, however, Katie's name is not
on the deed. Erich noted that at one time in the past, he
tried to evict Katie from their home. At the time of trial,
Erich and Katie's home was "for sale," and
Erich hoped that they would move "somewhere in the
further testified that C.N. is his step-son and they have a
good relationship. Erich takes C.N. fishing, and they play
basketball and video games together. Previously, Erich helped
with C.N.'s football team. When asked whether he had ever
physically disciplined C.N., Erich stated: "[M]aybe . .
. a handful of times when there ha[d] been times where he .
. . disrespected [Katie] to the point where . . . he
wouldn't do what she said." Erich also stated that
he had helped C.N. with his homework "a handful of
times" and he had eaten lunch with C.N. at school. While
he is in Katie's possession, after school, C.N. does his
homework, if he has any, and then he has "leisure
time" where he plays video games until bedtime.
Erich's opinion, C.N. enjoys the time that he spends with
Katie and they have a close relationship. Katie is the
primary disciplinarian, and she disciplines C.N. by taking
away his video games. Further, C.N. responds to Katie's
disciplinary tactics, and Katie has control over C.N.
However, Erich noted that, in the past, Katie has not always
been able to control C.N.'s behavior. In Erich's
opinion, C.N.'s physical and emotional well-being would
not be impaired if he was to live primarily with Katie.
regard to Z.O., Erich explained that she was a difficult baby
and he and Katie were stressed after she was born
particularly because Erich would leave Katie alone at home
with Z.O. for two weeks at a time so that he could go to
work. Erich would then return home for two weeks and
subsequently leave again for another two weeks. According to
Erich, Z.O. would scream "on and off
continuous[ly]." The stress of having Z.O. caused
"friction" in his and Katie's relationship, and
Erich and Katie argued every day. Erich and Katie broke off
their relationship in spring 2016, but later reconciled in
summer 2016. And he and Katie then began participating in
couples counseling sessions together "[t]o fix the
problems that [they] were having at the time." Through
counseling, he and Katie have learned tools for resolving
their "communication issues." Their relationship is
strong now, and they continue to attend couples counseling
sessions. They do not argue "like [they] used to."
Erich estimated that, over the course of their relationship,
he and Katie had separated "a handful of times."
also confirmed that, in the past, he would take Katie's
cellular telephone and keys in order to prevent her from
leaving during an argument. And on one occasion, he
"tried [to] shov[e] nicotine down [Katie's] throat,
pinned [her] down on the bedroom floor and tried to rip [her]
shirt off." When Katie ran outside to her car to
"try to call for help," Erich "pulled [her]
out of the driver's seat" and she fell in
"sticker burrs." Erich recalled that he was also
"put in jail" on one occasion in fall 2012. And
another time, C.N. tried to "break up a fight"
between Erich and Katie. According to Erich, at that time,
Katie was attempting to leave in her car with Z.O., but Erich
felt that he had "gone . . . a longer period of time
than . . . [he] should have without seeing" his child.
Erich went out to the car "to unstrap [Z.O.] out of her
car seat," and Katie tried to stop him. C.N. then pushed
Erich and appeared scared.
further testified that he has seen C.N. appear to be
intimidated by Daron. And previously when C.N. lived
primarily with Katie, he would bite his nails, exhibit
nervous ticks, and be generally unsettled when he was going
to see Daron. Moreover, Erich has observed C.N. running
around the house locking doors, which initially appeared to
be out of fear but now has become a routine. On "a
handful" of occasions, Erich has seen Daron be verbally
aggressive toward C.N. For instance, when C.N. fell off his
horse at a rodeo event, Daron walked aggressively over to
C.N. and began screaming and cursing. Daron also said that he
was going to "kill" the horse, which caused C.N. to
become withdrawn. Also, in 2013, Daron grabbed C.N.
"pretty hard" and dragged him into the bathroom at
a restaurant. C.N. then came out of the bathroom crying.
According to Erich, Daron would not always show up for
C.N.'s football practices or games, and in Erich's
opinion, Daron was resentful that Erich was participating in
C.N.'s extracurricular activities.
testified that he is C.N.'s father, he is married to
Danielle, and at the time of trial, Danielle was pregnant
with their child. Daron and Danielle also plan on having an
additional child in the future.
owns a trucking company, is self-employed, and works in the
oil field industry. Daron has owned his trucking company
since 2011, it operates in forty-eight states, and Daron has
six employees. At the time of trial, Daron had hired a
certain employee so that he would no longer be required to
travel out of town as frequently. In the past, Daron would
spent approximately three nights a week out of
Daron, Danielle, and C.N. live in a house in the country.
Daron stated that he and Danielle have a "pretty good
relationship," although they argue "[p]robably a
couple times a month." Daron is not physically abusive
regard to his mental health history, Daron testified that he
sees a counselor and takes "a bipolar medicine." He
last saw his counselor four or five months before trial.
Daron further stated that he had been diagnosed with ADHD and
has taken medication for his ADHD in the past. According to
Daron, he has anger management issues, but he takes
medication to make him calmer. And Daron, in the past, has had
problems with impulse control when dealing with
people. Daron believes that he has his anger
management issues more in control than he has in the past.
However, he becomes mad if Katie calls him multiple times.
When Daron is overwhelmed, he feels "stressed out."
Daron consumes a "six-pack" of beer every two weeks
to C.N., Daron stated that after the 2012 order was entered,
he saw C.N. more often than the order prescribed. However,
when Daron would see C.N., who was living primarily with
Katie at the time, he would notice that C.N. had poor
hygiene. C.N. was not bathing, brushing his teeth, using
deodorant, and could not tie his shoes. After C.N. began
living primarily with Daron, he learned to do daily chores,
which include feeding their animals, cleaning his room,
making his bed, and sweeping the floor. C.N.'s demeanor
in Daron's home is "[g]ood" and
"[a]mazing," and he is respectful. C.N. and Daron
like to go "trucking" and hunting together. During
the summer before trial, C.N. traveled with Daron, and he
attended a basketball camp. Daron has seen improvement in
C.N. since he began living primarily with him. Daron has
talked to C.N. about the new baby that Daron and Danielle are
expecting, and C.N. is excited to have a new sibling.
C.N. has been living primarily with Daron, Daron helps him
with his homework when Daron is not working, but Danielle
helps him with his homework "[a]ll the time." In
Daron's opinion, he helps C.N. with his homework about
twenty percent of the time, while Danielle helps C.N. the
remaining eighty percent of the time. Currently, C.N. is in
two resource classes at school and has friends, although C.N.
did get into a couple of fights at school in spring 2017.
further testified that he and Danielle are both responsible
for seeing that C.N. takes his ADHD medication. C.N.'s
behavior has improved, and he is "doing a lot
better" since adjustments were made to his ADHD
medication. Although C.N. is not "bad" when he is
not taking his medication, a person has "to have control
of him." According to Daron, when C.N. is living
primarily with him, he is "fine" regardless of
whether he is on ADHD medication or not. However, the ADHD
medication helps C.N. listen at school. Daron noted that he
and C.N. went to three counseling sessions together after
C.N. began living primarily with Daron, and the counselor
that they saw said that they had "nothing really to
discuss anymore" and that they were "doing
great." Daron has paid for C.N.'s medical insurance
since birth and plans to continue paying for it.
to C.N.'s extracurricular activities, in fall 2015, Daron
went to a lot of C.N.'s football games, although he may
have missed some practices because of work. Daron was unable
to attend C.N.'s school award ceremony because he was out
of town, but he attended many of C.N.'s basketball games.
And Danielle attended all of C.N.'s basketball games.
Since C.N. began living primarily with Daron in spring 2016,
Daron has enrolled him in football and basketball. C.N. is
also planning on "showing" a heifer.
regard to the November 2015 telephone call, Daron stated that
during the telephone call, he told Katie to "put that
[f]'ing brat on the phone," he "threatened to
put [C.N.] on his knees for three hours," and he accused
C.N. of laughing.According to Daron, he made the statement
about having C.N. stand on his knees, as a form of
discipline, in reference to an upcoming visit that C.N. was
to have with Daron, but he never was actually going to do
that to C.N. Daron explained that Katie had called him eleven
times on the day of the November 2015 telephone call, he
believed that she was "harassing" him and
"setting [him] up," and Katie was the person who
initiated the November 2015 telephone call. In any event,
Daron admitted that he had "made a mistake"
speaking in such a manner to C.N.
also explained that, at a past rodeo event, when the event
was running late, he wanted to take C.N. home. Daron ended up
picking C.N. up and carrying C.N. to his truck. Further, on
another occasion, C.N. fell off of his horse at a rodeo
event, and Daron rushed over to him and said something like
that he wanted "to kill the horse," although Daron
did not recall actually using the word "kill."
Daron stated that he had never made disparaging remarks about
C.N. in C.N.'s presence.
Daron's opinion, C.N. needed discipline, which Daron does
typically by talking to him, "taking his [video] games
away," and not allowing C.N. "to ride the
Ranger." Daron stated that, in the past, his own
behavior has contributed to C.N.'s behavioral issues and
he had, in the past, told Katie to "whoop [C.N.'s]
ass" if she called him needing disciplinary advice.
According to Daron, while C.N. lived primarily with Katie,
Katie would call Daron every week and ask him to discipline
C.N. over the telephone, and Katie had expressed concerns
about being unable to control C.N.
further testified that C.N. loves Katie and has a close
relationship with her. And when asked whether C.N. wants to
live with Katie, Daron stated: "One minute he does, and
the next minute -- it depends." C.N. "wants to make
everybody happy," and he will tell Daron "what
[Daron] want[s] to hear," just like he does with Katie.
In Daron's opinion, C.N. likes living with Daron because
C.N. appreciates the structure at Daron's house and he
"has everything at [Daron's] house." And Daron
believes that C.N. should continue living primarily with him.
C.N. does not fear Daron, and C.N. has a bond with
Daron's father, although Daron admitted that C.N. is
closer with Katie's parents. Daron explained that C.N.
should spend a lot of time with Katie, but "[s]he needs
to step up to the plate and do her job."
regard to Erich, Daron stated that law enforcement officers
had been called regarding Erich six times. And when
asked whether he wanted C.N. to have a good relationship with
Erich, Daron stated: "As long as he do[es not] put his
hands on [C.N.] like he did."
Daron testified that he had previously deposited $12, 000
into C.N.'s custodial account to be used for C.N.'s
education. And he had never signed an agreement that
permitted Katie to use the funds in C.N.'s custodial
account for her own personal use. However, he did verbally
tell her when she was unemployed that she "could take
some money out" to buy furniture for C.N. and then repay
it. At the time of trial, there were no funds remaining in
C.N.'s custodial account, and Daron explained that he had
never taken any money out of the account. Further, according
to Daron, he had loaned Katie approximately $7, 000 since
requested that the trial court allow C.N. to remain living
primarily with him, where C.N. had been living for the
previous sixteen months, and that Daron be named as the joint
managing conservator with the exclusive right to designate
C.N.'s primary residence.