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Brandon v. Rudisel

Court of Appeals of Texas, Fourteenth District

August 29, 2019

JESSICA JEAN BRANDON, Appellant
v.
SHAWN M. RUDISEL, Appellee

          On Appeal from the 425th Judicial District Court Williamson County, Texas Trial Court Cause No. 13-1795-F425

          Panel consists of Chief Justice Frost and Justices Jewell and Bourliot.

          OPINION

          KEM THOMPSON FROST, CHIEF JUSTICE

         A mother appeals the trial court's order modifying the conservatorship of her three children. She also challenges the court's order denying her any rights of possession or access to the children. We affirm in part and reverse and remand in part.

         I. Procedural and Factual Background

         During their marriage, appellant Jessica Jean Brandon ("Mother") and appellee Shawn M. Rudisel ("Father") had three children together, Paul, James, and Kayla.[1] Mother and Father divorced in 2013. The trial court named each parent as a joint managing conservator, with Mother having the primary right to designate the children's residence. Under the order in place for two years before the underlying modification suit, the children lived with Mother and would spend every other weekend with Father.

         In September 2017, Father filed suit to remove Mother as a joint managing conservator. He asked the trial court to deny Mother access to the children. Father sought a temporary restraining order as well as temporary orders. Father's supporting affidavit describes a series of events occurring since 2016 involving Mother's care of the children, including reports from Children and Family Protective Services ("CPS") made against Mother for drug abuse and neglect and for housing the children with two successive live-in boyfriends, the latter of whom Father discovered had a history of using and selling methamphetamines. In the affidavit, Father explains that Mother left the children with Father on the first day of June in 2017, for what was supposed to be a week, but the period lasted for six and a half weeks, despite Father's repeated attempts to reach Mother. In the affidavit Father described concerns for the children's shelter, reporting that Mother claimed her home had black mold and rat feces, that she was looking but unable to find a place to live, and had been living in hotels. He reported that Mother told him that she had not enrolled the children in school because she had not yet found a place to live.

         Temporary Restraining Order

         Mother, represented by counsel, appeared at the hearing on Father's request for a temporary restraining order. The trial court signed a temporary restraining order that removed Mother's possession of and access to the children, and that conferred on Father the right to withdraw them from their current school and enroll them in a school where he lived.

         Temporary Orders

         The trial court set a hearing to decide temporary orders two weeks later. When that date arrived, Mother's counsel withdrew from representing her. Mother did not appear at the hearing. The trial court signed temporary orders in which the court denied Mother access to the children pending final resolution of the case.

         Trial-Setting Notice

         On October 31, 2017, Father filed a "Notice of Final Trial on the Merits," giving notice that the case was set for trial on December 18, 2017 (the "Notice").

         Trial on the Petition to Modify Conservatorship

         Mother did not appear at trial. Father was the only witness at trial. The trial court issued its final order modifying the parent-child relationships.

         In its order the trial court appointed Father as the children's sole managing conservator and did not appoint Mother as a possessory conservator, implicitly removing Mother as a managing conservator and giving Father exclusive rights as managing conservator, including the right to designate where the children live and go to school. In the order the trial court explicitly denied Mother the parental rights ordinarily conferred to parents appointed as conservators (managing or possessory) under section 153.073 of the Texas Family Code. In making this ruling, the trial court stated:

[Mother] does not have the following rights and the following rights are suspended:
1. the right to receive information from any other conservator of the children concerning the health, education, and welfare of the children;
2.the right to confer with the other parent to the extent possible before making a decision concerning the health, education, and welfare of the children;
3. the right of access to medical, dental, psychological, and educational records of the children;
4.the right to consult with a physician, dentist, or psychologist of the children;
5.the right to consult with school officials concerning the children's welfare and educational status, including school activities;
6.the right to attend school activities;
7.the right to be designated on the children's records as a person to be notified in case of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an emergency involving an immediate danger to the health and safety of the children; and
9. the right to manage the estates of the children to the extent the estates have been created by the parent or the parent's family.

         The trial court expressly rejected Mother's appointment as a possessory conservator, and in the order recited findings under section 153.191 of the Texas Family Code to underpin this decision-that "the appointment of [Mother] as a possessory conservator is not in the best interest of the children," and "that parental possession or access of the children by [Mother] would endanger the physical or emotional welfare of the children."

         Finally, under the section defining Mother's possession of and access to the children, the order states:

[Mother] shall not have any possession and access to the children and [Mother] is ENJOINED from exercising any possession of the children or having any contact with the children. IT IS EXPLICITLY ORDERED that [Mother] cannot attempt to access the children or exercise possession of the children at the children's school or attempt to contact the children in any way unless given permission in writing by [Father].

         Motion for New Trial

         Mother timely filed a motion for new trial, asserting that the trial court's orders were unsupported by legally and factually sufficient evidence and claiming that she did not receive notice of the December 18, 2017 trial. After an evidentiary hearing, the ...


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