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In re J.P.

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

January 9, 2020

IN THE INTEREST OF J.P. AND A.P., CHILDREN

          On appeal from the 148th District Court of Nueces County, Texas.

          Before Chief Justice Contreras and Justices Longoria and Perkes

          MEMORANDUM OPINION

          DORI CONTRERAS CHIEF JUSTICE.

         Mother and Father are the divorced parents of J.P and A.P.[1] Appellant Mother appeals the trial court's final amended order in Father's suit to modify the parent-child relationship. By three issues, Mother argues that the trial court erred when it (1) entered an agreed order after she revoked her consent to the parties' Rule 11 agreement, (2) ordered the court appointed counselor and the amicus attorney to determine Mother's visitation and access to the children, and (3) granted overbroad injunctions that restrained her speech. We reverse in part, affirm as modified in part, and remand for further proceedings consistent with this memorandum opinion.

         I. Background

         On April 3, 2017, Mother and Father divorced. The divorce decree appointed Mother as the children's sole managing conservator, appointed Father as possessory conservator with a standard possession order, see Tex. Fam. Code Ann. § 153.312, and ordered Father to pay child support. Shortly thereafter, Mother changed her residence and failed to alert Father or the trial court of her new address. As a result, Father was unable to get visitation and access to the children as mandated by the divorce decree.

         On June 19, 2017, Father filed a motion to enforce possession or access to the children and sought attorney's fees and to hold Mother in contempt. Father alleged that Mother had failed to surrender the children to him as ordered by the court. On August 2, 2017, Father filed a petition to modify the parent-child relationship, which he later amended. On September 6, 2017, the trial court signed an order appointing Jeanette Cantu-Bazar as attorney ad litem but changed her role to amicus attorney on October 20, 2017. The trial court also issued an order finding this case to be a high conflict case.[2]On October 24, 2017, the trial court signed an order appointing Rebecca Campbell as the expert therapist for the children.

         In his fifth amended motion to enforce possession and access, Father alleged Mother had: failed to surrender the children as required by the court order eleven times; failed to notify Father or the court of her current residence, phone number, and employer; filed a false report with the Corpus Christi Police Department;[3] and informed Father that he was prohibited from any further visitation with the children unless he consulted with Tamara Robertson, the therapist providing care for the children prior to the trial court's order appointing Campbell. Among other relief, Father requested temporary injunctions preventing Mother from: removing the children from Nueces County, withdrawing the children from the school they were currently enrolled in, hiding the children, making disparaging remarks about Father or Father's family in the presence or within the hearing of the children or on any form of social media, and discussing any litigation concerning the children in the presence or within the hearing of the children or on any form of social media. On June 15, 2018, Cantu-Bazar filed a motion for termination of Robertson's services, arguing that it was imperative to enforce the court's order appointing Campbell.

         On June 20, 2018, the trial court held a hearing on Father's motion to enforce possession and access and Cantu-Bazar's motion for termination of Robertson's services. The court found that Mother had violated the orders in the divorce decree and found Mother in contempt of court. The trial court assessed Mother's punishment at 180 days' confinement in the Nueces County Jail with her term to start that day and 120 days of the sentence to be suspended. The trial court also ordered that Campbell serve as the therapist for the children and that Robertson be removed from the case. Finally, the trial court ordered that Mother have a psychological evaluation and awarded Father $5, 000 in attorney's fees.

         On August 13, 2018, the trial court held a hearing on Father's petition to modify the parent-child relationship where the parties read an agreement into the record. See Tex. R. Civ. P. 11. Specifically, the agreement read into the record provided that:

• Father would be the sole managing conservator of the children;
• Father would have exclusive rights to consent to medical care or psychological counseling and to designate the children's primary residence;
• Mother would have visitation and access to the children as recommended by Campbell;
• Father's child support obligation ceased on July 30, 2018, and Father was entitled to reimbursement of any overpayment;
• Each party would be obligated to pay one half of the children's uninsured medical and dental expenses;
• Father would provide health insurance for the children, with no reimbursement from Mother for the premiums;
• Mother would begin paying child support on September 1, 2019, pursuant to the statutory guidelines;
• Mother would be prohibited from contacting the children via telephone, mail, or email unless recommended by Campbell;
• Mother would continue to be enjoined from contacting the Department of Family and Protective Services (the Department) or the police alleging harm by Father or Father's family without first "going through" either Campbell or Cantu-Bazar;
• Mother would submit to a psychological evaluation;
• Father would waive the prior award of $5, 000 in attorney's fees;
• Mother would be enjoined from interfering with Father's possession of the children in any way, making disparaging remarks about Father or his family in person or on social media, discussing the litigation concerning the children in their presence or on social media, making further reports to police without approval of the trial court, and going within 500 yards of Father's residence or work, Father's parents residence, or the Children's school without the recommendation of Campbell;
• Mother would dismiss all pending motions, including those seeking to hold Father in contempt and the removal of Campbell as the court-appointed therapist; and
• if the court approved, Mother would be released from custody immediately or as soon as possible.

         Mother testified that she agreed with the terms dictated into the record and asked the trial court to accept the agreement. The trial court orally announced that it accepted the parties' agreement and that it would sign an order releasing Mother from custody that same day.

         That same day, the trial court signed an order releasing Mother from custody. The order provided that Mother "shall comply with the Agreement read into the record and approved by the Court today, and with the Order approving the Agreement to be submitted on or before August 16, 2018."[4]

         On August 22, 2018, Father filed a motion to enter judgment. On September 4, 2018, Father filed a motion to terminate Campbell as the therapist for the children because "Campbell is not willing to serve as a family therapist in this case [because she] has received threatening and belligerent emails from [Mother] which make further work in this case with the family untenable." On September 10, 2018, Father filed a motion for additional injunctions requesting that Mother be enjoined from any contact with Father, Father's parents, his wife, the children, or his in-laws in any manner. Mother filed a response to Father's motion to enter judgment in which she stated she was withdrawing her consent to the parties' Rule 11 agreement.

         On October 25, 2018, the trial court held a hearing on the motion to enter judgment and on Father's motion for additional injunctions. Mother appeared and stated she did not consent to parts of the parties' agreement. Father testified in support of the newly requested injunctions. The trial court signed a final order that incorporated the terms of the parties' agreement read into the record on August 13, 2018, except the order provided that the therapist who would determine Mother's access to the children would be Kate Rodriguez instead of Campbell. The court also granted Father the newly requested injunctions. The court's order specified the duties Father and Mother would have as sole managing conservator and possessory conservator, respectively. The trial court also issued an order appointing Rodriguez as the family therapist for the children because Campbell withdrew from the case. The following day, the trial court signed an amended order correcting the name of the medical professional appointed to perform Mother's psychological evaluation. Mother timely perfected her appeal from that amended final order on November 26, 2018.

         On March 21, 2019, Mother filed an emergency motion for stay with this Court alleging that Rodriguez informed Mother in November 2018 of her intent to withdraw from the case, and that Rodriguez's withdrawal was confirmed in February 2019. Mother argued that Rodriguez's withdrawal "rendered it impossible for [her] to comply with the [trial court's] Order's provisions" and, as a result, she had been effectively "entirely stripped of her visitation and access rights." On March 26, 2019, we denied Mother's emergency motion, abated the appeal, and remanded the case to the trial court with instructions to hold an emergency hearing regarding the best interests of the children.

         On April 16, 2019, the trial court signed an amended order modifying the October 26, 2019 final judgment and reappointing Cantu-Bazar as amicus attorney for the case. The order further provided that Mother "shall have possession and access to the children as ordered by the Court in the 'Stair Step Visitation for [Mother]' provisions attached hereto as Exhibit A, subject to the recommendations of the amicus attorney . . . ." The trial court also signed an order removing Rodriguez as the therapist and appointing Courtney Rios in her place. We reinstated the appeal on July 1, 2019.

         II. Standard of Review

         We review a trial court's order regarding child custody, control, possession, and visitation for an abuse of discretion. In re H.N.T., 367 S.W.3d 901, 903 (Tex. App.- Dallas 2012, no pet.). Likewise, we review the enforcement of Rule 11 agreements and the grants of permanent injunctions for an abuse of discretion. See Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659 (Tex. 1996) (per curiam); Flowers v. Flowers, 407 S.W.3d 452, 457 (Tex. App.-Houston [14th Dist.] 2013, no pet.) (permanent injunction); Chase Manhattan Bank v. Bowles, 52 S.W.3d 871, 881 (Tex. App.-Waco 2001, no pet.) ("A trial court's ruling regarding a Rule 11 agreement is reviewed for abuse of discretion."). A court abuses its discretion when it acts without reference to any guiding rules or principles, or when it fails to analyze or apply the law correctly. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).

         III. Rule 11 Agreement

         By her first issue, Mother argues that the trial court's order is: (1) void because she revoked her consent to the parties' agreement before the trial court rendered its judgment; and (2) unenforceable because it did not comply with the terms of the agreement.

         I. Consent to the Agreement

         Rule 11 of the Texas Rules of Civil Procedure states, "[u]nless otherwise provided in these rules, no agreement between attorneys or parties touching any suit pending will be enforced unless it . . . be made in open court and entered of record." Tex.R.Civ.P. 11. A party has the right to revoke his or her consent to a Rule 11 agreement at any time before the rendition of judgment. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983); In re Caballero, 441 S.W.3d 562, 573 (Tex. App.-El Paso 2014, orig. proceeding); Patel v. Eagle Pass Pediatric Health Clinic, Inc., 985 S.W.2d 249, 251 (Tex. App.-Corpus Christi-Edinburg 1999, no pet.); see also Kanan v. Plantation Homeowner's Ass'n Inc., 407 S.W.3d 320, 334 (Tex. App.-Corpus Christi-Edinburg 2013, no pet.) (noting that, where consent to a Rule 11 agreement ...


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