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In re E.L.A.V.

Court of Appeals of Texas, Eighth District, El Paso

October 31, 2019

IN THE INTEREST OF E.L.A.V., A CHILD.

          Appeal from the 383rd District Court of El Paso County, Texas (TC# 2011-CM10698)

          Before Alley, C.J., Palafox, J., and Chew, C.J. (Senior Judge)

          OPINION

          GINA M. PALAFOX, JUSTICE

         This appeal arises from a suit affecting the parent-child relationship. Appellant O.V. ("Father") appeals from an order of the 383rd District Court ("post-trial court") granting a motion to reconsider an order of the 65th District Court ("trial court") following recusal of the judge of the trial court and transfer of the case to the post-trial court.[1] Father challenges the admission of certain exhibits in the trial court and the sufficiency of the evidence to support the post-trial court's grant to Appellee E.R. ("Mother") of the exclusive right to make certain medical decisions affecting the child, E.L.A.V. We affirm.

         BACKGROUND

          Mother initiated this proceeding in 2011, shortly after E.L.A.V.'s birth, by filing an Original Petition In Suit Affecting The Parent-Child Relationship. Mother requested that she and Father be named joint managing conservators, that she be designated as the conservator with the exclusive right to determine the primary residence of the child, and that Father be ordered to pay child support and medical child support. After six years and numerous motions to recuse, changes of counsel for Father, and motions for continuance, the cause came on for final hearing on December 8, 2017.

         The evidence reveals, and the parties do not dispute, that Mother and Father have been unable to agree on, or even communicate about, medical care for the child and what treatments and therapies are appropriate to address her developmental needs. For example, the child needs speech therapy, which she receives at school and additionally through a private speech therapist retained by Mother. Father, however, was also taking the child to another private speech therapist, a fact Mother was not aware of until it was revealed in a court hearing. There is also evidence that Father unilaterally obtained orthotics, eyeglasses, and prescription medication for the child that Mother believes are unnecessary. As a result of their inability to communicate and agree, both parents asked to be given the exclusive right to make medical decisions for the child.

         Bryan Morales, E.L.A.V.'s school speech therapist, testified concerning the child's progress. During the course of his testimony, he discussed the contents of a progress report he authored, without objection from Father. When Mother offered the report into evidence as exhibit P-2, Father objected that the document had not been produced in discovery. Father acknowledged, though, that the content of the report was cumulative of Morales's testimony. Mother explained that she had only received the document two days before, and the court overruled the objection.

         Father was asked during his testimony about a number of forms he had filled out to obtain speech therapy for E.L.A.V. from Omega Rehab Services. Father discussed the content of those forms without objection. However, when Mother offered the forms into evidence as exhibits P-6 A through E, Father objected that they had not been produced in discovery. Mother explained that the forms were actually within Father's control and that she was only able to obtain them by going through Father's attorney. The trial court, noting that Mother "should have been able to have access to [the forms] from the very beginning," overruled Father's objections.

         On January 5, 2018, the trial court signed an order designating Mother as the person having the exclusive right to determine the primary residence of the child (restricted to El Paso County, Texas); granting Father visitation according to the extended standard possession order; requiring Mother to maintain health insurance for the child; ordering Father to pay child support; and specifically naming who the child's healthcare providers would be. Father filed a motion for new trial alleging legal and factual insufficiency of the evidence.[2] Mother filed a motion (and an amended motion) to reconsider, alleging that the court had designated medical providers for the child that were not covered under Mother's insurance.

         In February 2018, Father filed a motion (and amended motion) to recuse the judge of the trial court. That judge recused herself in the interest of judicial economy and the case was eventually transferred to the post-judgment court.[3] On April 19, 2018, the post-judgment court signed an order that, among other things, grants Mother the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures, and to psychiatric and psychological treatment of the child. Father is granted "the independent right to consent to medical, dental, and surgical treatment involving invasive procedures only in the event of an emergency during his periods of possession[.]" This order recites that the post-judgment court conducted an evidentiary hearing, which was reported by a court reporter, but no reporter's record of this hearing appears in the appellate record.

         ISSUES

         Father raises two issues asserting that the trial court erred by admitting into evidence exhibits P-2 and P-6 A through E because those exhibits were not produced in discovery prior to trial. In a third issue, Father asserts that the order of the post-trial court granting Mother the exclusive right to consent to medical, dental, and surgical treatment involving invasive procedures and to ...


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