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Trevino v. O'Quinn

Court of Appeals of Texas, Third District, Austin

August 30, 2019

Rosalinda Trevino, Appellant
v.
Brian O'Quinn, Appellee

          FROM THE 53RD DISTRICT COURT OF TRAVIS COUNTY NO. D-1-FM-17-003420, THE HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

          Before Chief Justice Rose, Justices Goodwin and Baker

          MEMORANDUM OPINION

          MELISSA GOODWIN, JUSTICE

         In this appeal from a suit to modify the parent-child relationship, Rosalinda Trevino challenges the trial court's final order that appointed Brian O'Quinn the child's sole managing conservator, appointed Trevino the child's possessory conservator, and limited Trevino's access and possession to supervised visits with the child three times a month. For the following reasons, we affirm the trial court's order.

         Background

         The child was born in August 2014, her birth certificate designates O'Quinn as her father, and the parties signed an acknowledgement of paternity shortly after she was born.

         In January 2016, a trial court in Hidalgo County signed an order in a suit affecting the parent-child relationship that was based on a mediated settlement agreement between the parties who were never married to each other. The trial court appointed the parties joint-managing conservators of the child; ordered that Trevino had the exclusive right to designate the child's primary residence; ordered O'Quinn to pay child support; and specified O'Quinn's periods of possession. O'Quinn's visitation rights were for a period of four hours every day, at least two hours on the child's birthday, and on Saturdays two weekends per month from 8:00 a.m. to 8:00 p.m.

         In February 2017, O'Quinn filed a petition to modify the parent-child relationship in the trial court in Hidalgo County and motion to transfer the case to Travis County because the parties and the child had resided in Travis County for over six months preceding the commencement of the modification suit. The trial court in Hidalgo County granted the motion to transfer the case to Travis County in March 2017. After the case was transferred, the trial court in Travis County appointed a guardian ad litem for the child and ordered O'Quinn to submit to genetic testing. On September 25, 2017, the trial court also entered interim orders that designated O'Quinn's periods of possession and an order requiring a psychological examination of Trevino. Shortly after entering the interim orders, however, the trial court entered a temporary restraining order against Trevino, requiring visitation with Trevino to be supervised, and ordered a writ of attachment requiring the child to be delivered to O'Quinn.

         The trial court's temporary restraining order and writ of attachment were based on O'Quinn's verified motion that was supported by his affidavit and medical records from Dell Children's Medical Center. The medical records documented the child's emergency visit to the hospital for possible sexual assault on August 30, 2017. The records reflect that the child arrived at the medical center at 3:22 a.m.; that Trevino was requesting that the child, who was three-years old, be tested for sexually transmitted diseases; that medical personnel did not perform this testing because they determined it was not necessary; and that Trevino "may [have been] in mental health crisis as evidenced by labile affect, pressured speech and tangential thought processing" and "delusional thought processes as evidenced by narrative."[1]

         In his affidavit, O'Quinn averred that he had "been denied possession and access to the child"; that Trevino "regularly neglects the child's physical and emotional needs," providing specific examples; and that Trevino had "unaddressed mental health concerns that substantially impair the child's physical health and emotional development and place the child at immediate risk of physical and emotional harm." He also averred about Trevino's threats to remove the child from Travis County to California or Mexico;[2] her threats "to take, keep, withhold, and conceal the child in violation of [his] right to possession and access to the child"; her "false physical and sexual abuse allegations" against him and others; her demands that the child be tested for sexually transmitted diseases and to determine if the child's hymen was intact; and her statements to the child that O'Quinn "was not the child's father and that she, [Trevino], would be taking the child soon and the child would no longer have to see any of 'these people.'"

         After the child was delivered to O'Quinn pursuant to the court order in September 2017, the child resided with him, and Trevino only had supervised visitation with the child during the case's pendency. Although she had been represented by counsel at times in the trial court and has counsel on appeal, Trevino represented herself at the time of the January 2018 bench trial. A few days before the trial, Trevino filed a motion for continuance. Among the asserted grounds, she contended that the "proper parties to this case have not been brought into the case" because O'Quinn had been determined not to be the child's biological father based on the genetic testing, the biological father had not been noticed of the case or hearing, and Trevino's current husband, whom Trevino alleged was the child's presumed father, had not been notified of the case or hearing. The trial court did not grant Trevino's motion and proceeded to trial. See Tex. R. Civ. P. 251.

         The witnesses at trial included the parties, detectives who investigated Trevino's allegations against O'Quinn, O'Quinn's mother, and the guardian ad litem. The admitted exhibits included the child's birth certificate, the parties' acknowledgement of paternity, the medical records from Dell Children's Medical Center concerning the child's emergency visit on August 30, 2017, and the psychological evaluation of Trevino dated September 30, 2017.

         O'Quinn testified about the parties' relationships with each other and the child and his reasons for requesting modification. He testified that he had been involved with the child from her birth, he was concerned that Trevino might try to take the child to live in Mexico, and Trevino's allegations against him and others were "all false" and "heinous and extreme allegations." He continued to request that the court limit Trevino to supervised visits "because [he did not] know what [Trevino was] capable of physically" and that he "[felt] like the first chance she gets she is going to leave with [the child]." O'Quinn's mother also testified that, if the trial court returned the child to Trevino, she was "afraid [Trevino] would take [the child] and leave the country and we would never see [the child] again." She testified that the child was "very happy" living with O'Quinn and did not want to talk to or be returned to Trevino, and she provided details about the child's home life and daily routine since she had been living with O'Quinn. As to the child's interactions with Trevino, O'Quinn's mother testified that the child had "night terrors" after she had conversations with Trevino.

         The detectives testified about their respective investigations of Trevino's allegations against O'Quinn. An Austin Police Department detective testified that all cases had been closed as "unfounded" and that "prosecution [had been] declined"; that some of Trevino's allegations "caused [him] to wonder maybe about her mental state" because they "just seemed a little far-fetched";[3] and that he was concerned for the child based on Trevino's mental state. He testified that he investigated 13 different allegations, beginning in February 2017, and that many of the allegations came around the time of court hearings.[4] A Pflugerville Police Department detective testified that he was dispatched to Trevino's home around 1:00 a.m. on August 30, 2017, for a welfare check after Trevino had reported sexual assault of the child. After his arrival at her house, Trevino called EMS, and EMS transported the child to Dell Children's Medical Center. As part of the detective's investigation, he interviewed Trevino and spoke with medical personnel at the medical center. The personnel from the medical center informed him that, while Trevino was there with the child, Trevino was "going through a psychotic episode"; she "appeared to be delusional, paranoid"; and she stated "repeatedly" that she "wanted to harm [O'Quinn] and the bitch Judge." Based on his interactions with Trevino, the Detective described her "emotional state" as "unstable." He also testified about his concerns because of photographs of the child that Trevino showed to him on her phone, including "completely nude" photographs and a photograph of a "hand that was opening the child's vagina." Based on his investigation, he determined that there had been no sexual assault.

         Trevino testified about the parties' relationships with each other and the child, her allegations against O'Quinn and others, and the parties' actions during the case's pendency. Although she testified that the child "does need" O'Quinn and that she wants O'Quinn to stay in the child's life, she made allegations against O'Quinn and others. Trevino alleged that O'Quinn's mother had poisoned her, that O'Quinn had vandalized her car, and that O'Quinn had allowed rectal penetration of the child on "more than 15 occasions." Trevino, however, conceded that the alleged rectal penetrations were when a doctor was taking the child's temperature by using a rectal thermometer. Although the evidence was conflicting, there was evidence that Trevino previously had accused O'Quinn of shooting a gun at her. At trial, she denied that she had accused O'Quinn of shooting a gun at her. She testified that, during a trip to Louisiana, an unidentified person shot a gun at her but that "conveniently enough the person who shot at [her] was from Texas."

         The final witness was the guardian ad litem. She testified about her involvement in the case, including her interactions with the parties and the child. She expressed concern about Trevino's "mental health" and its effect on the child. Trevino was diagnosed with Schizotypical Personality Disorder. The guardian ad litem recommended that Trevino's visits with the child continue to be supervised and limited to two-hour visits on a weekly basis until Trevino completed a three-month Dialectical Behavior Therapy program.

         In the final order, the trial court generally followed the guardian ad litem's recommendations concerning access and possession. The trial court appointed O'Quinn the child's sole managing conservator, Trevino the child's possessory conservator, and gave Trevino supervised visits three times each month with increased hours upon completion of the three-month therapy program. Specifically, the trial court ordered that Trevino was entitled to supervised visitation with the child as follows:

Phase I: on the 1st, 3rd, and 5th Saturdays of each month beginning at 10:00 a.m. and concluding at Noon the same day.
Phase II: on the 1st, 3rd, and 5th Saturdays of each month beginning at 10:00 a.m. and concluding at 6:00 p.m. the same day.
It is ordered that Rosalinda Trevino's possession and access shall begin at Phase I. Rosalinda Trevino's possession and access shall move to Phase II upon successful completion of the 3-month Dialectical Behavior Therapy program at Seton Behavior Health Care.

         The trial court also entered findings of fact and conclusions of law. This appeal followed.

         Analysis

         Preservation ...


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