Saturday, June 30, 2007

Whitworth v. Whitworth (Tex.App.- Houston, 2007)

Houston Appeals Court Holds Grandparent Had Standing to Intervene - Custody Properly Awarded to Grandmother; No abuse of discretion in limiting parental rights of mother despite presumption in favor of natural parents.

Tammy Renee Whitworth v. Douglas Wayne Whitworth, No. 01-04-01026-CV (Tex.App.- Houston [1st Dist.] Mar. 16, 2007)(Hanks)(subst. opinion on rehearing)(trial court did not abuse its discretion in appointing grandmother as the sole managing conservator after finding, by a preponderance of credible evidence, that appointing mother as a managing conservator would result in serious physical or emotional harm to the child).
On Appeal from the 257th District Court
Harris County, Texas; Trial Court Cause No. 2000-64428


Carol Whitworth, the intervenor, filed a motion for rehearing. We withdraw our Opinion and Judgment of November 22, 2006 and grant the motion for rehearing.

Appellant, Tammy Renee Whitworth, challenges the trial court's final decree of divorce that named intervenor, Carol Whitworth, sole managing conservator of Tammy's minor child, K.C. In two issues on appeal, Tammy argues that the trial court erred (1) in failing to name her as joint managing conservator and (2) in giving her less than a standard possession order. We affirm.


Tammy and Douglas Whitworth married in August 2000, but separated in September or October 2000. Douglas filed an original petition for divorce a couple of months later. A second original petition for divorce was filed by Tammy, and the trial court signed an order of consolidation. Tammy and Douglas's only child, K.C., was born on June 13, 2001. (1) By order entered November 30, 2001, Tammy was given custody of K.C. and Douglas was given two hours a day visitation five days a week and ordered to pay $500 a month to Tammy as temporary spousal support. Three months later, Tammy filed a motion for enforcement of temporary spousal support.

Almost one year after Tammy was given custody, the trial court heard the parties' application
for temporary custody orders pending the divorce. Although we have no transcript of the hearings held on a Friday and Monday, testimony from the divorce hearing indicates that the trial court heard testimony that Tammy had repeatedly denied Douglas access to K.C., had alleged that Douglas sexually abused A.C., K.C.'s half-sister, and feared his unsupervised visitation with K.C. Douglas repeatedly denied these allegations. The testimony further indicated that, during the course of the earlier hearing, the trial court ordered Tammy to have her mother, Gayle Cash, bring K.C. to the court and warned her numerous times that she would be held in contempt if she did not, but Tammy did not have K.C. brought to the court. The docket sheets reflect that, at the end of the Friday hearing, the trial court found Tammy in contempt and sentenced her to 10 days in jail for "continuous parental alienation against father through repeated visitation/access denials and behavior in court."

On the same day as the Friday hearing, Carol Whitworth, Douglas's mother, filed an original petition for intervention stating that she was K.C.'s paternal grandmother and requesting that K.C. be placed in her care on "a temporary and/or permanent basis."

Tammy stayed in jail for the weekend and appeared in court for the continuation of the hearing on Monday. At the end of the hearing, the trial court entered an order appointing Carol, the intervening grandparent, as temporary sole managing conservator of K.C. and Tammy and Douglas as temporary possessory conservators with only supervised rights of possession for four hours every other week through the SAFE Supervised Visitation Program of the Victim's Assistance Center ("SAFE"). The docket sheet from the Monday hearing stated that Tammy and her mother, Gayle Cash, had "exercised continuous parental alienation against father through repeated visitation/access denials and behavior in court during this hearing" and that supervised visitation was ordered because of the seriousness of the allegations against Douglas and the fact that the trial court deemed Tammy a "flight risk with child as demonstrated by her behavior to court since 10/18/02 [the Friday hearing]." The trial court ordered Dr. Edward Silverman to conduct psychological evaluations of Tammy, Douglas, and Carol. Both Tammy and Douglas were ordered to pay Carol child support for K.C. and to ensure the maintenance of health insurance for K.C. The trial court also enjoined Tammy from telephoning Carol and from going within 50 feet of Carol's residence. Four months later, the trial court also ordered that Tammy and Douglas were enjoined from taking photos of K.C. while she was at SAFE.
More than one year later, on April 13, 2004, the trial court heard evidence to determine custody of two-year-old K.C. At the time of trial, Douglas was not seeking primary custody of the child. The trial court entered a final decree of divorce stating that neither Tammy nor Douglas would be the managing conservator of K.C. because it "would not be in the best interest of the child because such appointment would significantly impair the child's physical health or emotional development."

The decree ordered that Carol, the intervening grandparent, be appointed as the sole managing conservator of K.C. The trial court found that a standard possession order for either Tammy or Douglas was inappropriate and not in the best interest of K.C. It ordered that Tammy continue to have only supervised visitation for four hours every other Saturday and that Douglas have supervised visitation to be determined by his mother, Carol. The trial court entered no findings of fact or conclusions of law. Two months later, Tammy filed a motion for new trial, which the trial court denied. Tammy appeals from the trial court's custody determination in the divorce decree.


We first review Carol's standing to intervene in this action. The parties did not raise standing in their initial set of briefs nor was a motion to strike the intervention filed with the trial court, but we may address it sua sponte. (2) We review a court's determination of a grandparent's standing to intervene in a pending divorce proceeding under an abuse of discretion standard. See Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006). A trial court abuses its discretion when its decision is arbitrary or unreasonable. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

Carol has standing to intervene in this action. Generally, an intervenor must show standing to maintain an original suit in order to intervene. Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex. App.--El Paso 1995, no writ); McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ). This showing requires that the intervenor have some present justiciable interest in the subject matter of the suit. Segovia-Slape, 893 S.W.2d at 696. However, an intervenor in a suit affecting the parent-child relationship does not need to plead or prove the standing required to institute an original suit because managing conservatorship is already in issue. Id. Specifically, section 102.004(b) of the Family Code provides that the trial court may grant a grandparent leave to intervene in a pending suit filed by a party authorized under section 102 of the Family Code to bring an original suit affecting the parent-child relationship. Section 102.004(b), as it existed at the time that Carol and Douglas filed their divorce, provided that:

An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter.

Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006) (emphasis added); see In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.--Beaumont 2001, no pet.) (holding that trial court did not abuse its discretion by allowing the intervention of biological grandparent under section 102.004(b)); McCord, 777 S.W.2d at 812 ("It has been held that, as a matter of law, grandparents possess a justiciable interest in their grandchild" and that grandparents who intervene in a proceeding are not required to plead and prove the requirements for standing to bring an original action.). This subchapter applies to interventions seeking managing conservatorships as well as those seeking possessory conservatorships. In re Hildago, 938 S.W.2d 492, 496 (Tex. App.--Texarkana 1996, no writ).

This relaxed standing rule for intervention promotes the overriding policy in all suits affecting the parent-child relationship, that of protecting the best interest of the child. Segovia-Slape, 893 S.W.2d at 696; see also In the Interest of K.T. & M.T., 21 S.W.3d 925, 927 (Tex. App.--Beaumont 2000, no pet.) ("Sound policy underlies the Legislature's creation of a relaxed standing rule subject to court discretion for intervention in an existing suit. Where a suit is already pending, concern for the privacy of the parties is subordinate to the overriding concern for the best interest of the children."); Harrison v. Harrison, 734 S.W.2d 737, 740-41 (Tex. App.--Eastland 1987, no writ) ("There is a significant difference between filing an original proceeding which could disrupt the children's relationship with their parents and intervening in a pending suit in which that relationship had been sufficiently interrupted to cause the filing of a suit requiring the courts to decide what decree would be in the children's best interest."); Young v. Young, 693 S.W.2d 696, 698 (Tex. App.--Houston [14th Dist.] 1985, writ dism'd) ("Intervention under these circumstances may enhance the trial court's ability to adjudicate the cause in the best interests of the child."). Thus, while the statutory scheme assures that grandparents are not entitled to disrupt the child's family life and initiate suits for managing conservatorship except in limited circumstances, once the child's best interest is before the court and being litigated, the trial court has discretion to determine that the intervention by a grandparent may enhance the trial court's ability to adjudicate what is in the best interest of the child. McCord, 777 S.W.2d at 812.

In the instant case, Tammy and Douglas had filed a suit for divorce. As K.C.'s biological parents, pursuant to section 102 of the Family Code, they were both authorized to file an original suit affecting the parent-child relationship. Allegations of inappropriate and questionable behavior by both parents had been asserted, raising the question of parental custody. It was in this context that Carol filed a petition for intervention. Carol's petition was filed on the same day that the trial court found Tammy in contempt and sentenced her to 10 days in jail. Carol is K.C.'s undisputed paternal grandmother and contends that her appointment as managing conservator would be in the child's best interest. Accordingly, the trial court did not abuse its discretion in finding that she had standing to intervene in this suit. See In re M.A.M., 35 S.W.3d at 790. (3)

Sole Managing Conservatorship

In two issues, Tammy argues that the trial court erred by appointing Carol as the sole managing conservator with primary physical possession of K.C. and giving Tammy a less than standard possession order. Tammy contends that awarding managing conservatorship to Carol under the facts of this case violated section 153.131 of the Family Code and the Due Process Clause of the United States Constitution. See Tex. Fam. Code Ann. § 153.131 (Vernon 2002).

Standard of Review

We review a trial court's determination of conservatorship for an abuse of discretion. Gillespie, 644 S.W.2d at 451. The test for an abuse of discretion is whether, in the opinion of the reviewing court, the trial court's rulings were arbitrary or unreasonable. Id. The mere fact that a trial judge may decide a matter within his discretion in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965). An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Lide v. Lide, 116 S.W.3d 147, 152 (Tex. App.--El Paso 2003, no pet.).
Section 153.131 of the Family Code

There is a strong presumption that the best interest of a child is served if a natural parent is appointed as a managing conservator. Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002); Brook v. Brook, 881 S.W.2d 297, 299 (Tex. 1994); In re De La Pena, 999 S.W.2d 521, 527 (Tex. App.--El Paso 1999, no pet.); In the Interest of A.D.H., 979 S.W.2d 445, 447 (Tex. App.--Beaumont 1998, no pet.). Section 153.131(a) statutorily provides for the appointment of the parent as sole managing conservator or the parents as joint managing conservators, unless the court finds the appointment would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development. Tex. Fam. Code Ann. § 153.131(a).
For the court to award managing conservatorship to a non-parent under section 153.131, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Brook, 881 S.W.2d at 298; In the Interest of M.W., 959 S.W.2d 661, 665 (Tex. App.--Tyler 1997, no writ). There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. M.W., 959 S.W.2d at 665. This link between the parent's conduct and harm to the child may not be based on evidence which merely raises a surmise or speculation of possible harm. Id. When a non-parent and a parent are both seeking managing conservatorship, "close calls" go to the parent. Id. at 666; Ray v. Burns, 832 S.W.2d 431, 434 (Tex. App.--Waco 1992, no writ).

An adult's future conduct may be somewhat determined by recent past conduct. M.W., 959 S.W.2d at 666. In and of itself, however, evidence of past misconduct may not be sufficient to show present unfitness. Id. Further, it is wholly inadequate to simply present evidence that a non-parent would be a better choice as custodian of the child. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). The non-parent must offer evidence of specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Id. Specific acts or omissions of a parent implicating a significant impairment to a child's emotional development may be inferred from direct evidence. De La Pena, 999 S.W.2d at 529.

Custody disputes by their very nature are inherently fact-intensive. Id. Appellate courts routinely defer to the fact finder at trial concerning matters of credibility and demeanor, but perhaps in no other type of litigation is it more critical. Id.

In this case, during the divorce trial, the trial court heard testimony from numerous witnesses who presented the trial court with specific, credible evidence that, if Tammy was given managing conservatorship, K.C.'s emotional health would be significantly impaired. First, there was evidence presented to the trial court that Tammy has a history of subjecting K.C. to repeated investigations for claims of sexual and physical abuse when there was no evidence of abuse. There was evidence that, if Tammy was given managing conservatorship, she would continue to make such reports and significantly impair K.C.'s emotional health. Second, there was evidence presented to the trial court that Tammy has a history of denying K.C. any contact with her biological father. There was evidence presented that, if Tammy was given managing conservatorship, she would continue to deny K.C. access to her father, which would significantly impair K.C.'s emotional health.

1. Repeated investigations for abuse

During the divorce trial, the trial court heard evidence that, after Carol was given temporary
managing custody of K.C., Tammy began making claims to CPS and law enforcement authorities that K.C. was being neglected by Carol and was being molested by Douglas. As a result, K.C. was subjected to repeated investigations by CPS and law enforcement authorities who found no evidence to support any of Tammy's very specific and graphic claims of abuse.

a. Christina Bailey

Christina Bailey, a Children's Protective Services ("CPS") investigator, testified regarding her investigations into Tammy's allegations of abuse. She testified that, after Carol received custody, CPS received eight reports of physical abuse and neglect to K.C. by Carol and Douglas.
First Report: On November 3, 2002, just two weeks after Carol received custody of K.C., CPS received an anonymous report of the abuse of K.C. (4) The caller reported that K.C. had what appeared to be cigarette burns all over her, had lost a lot of weight and was very pale, had bruises and bumps all over her body, had some kind of open sores on her head that were oozing pus, had scratch marks on her face, and had a rash that was covering her from head to toe. The caller also reported that K.C. spent a lot of time with Douglas. A CPS caseworker investigated the claims. She met with Carol, physically observed K.C., and found no evidence of abuse. Despite Tammy's testimony that the investigations were "inconclusive," Bailey testified at the divorce trial as follows:

Q. So did - so was there a finding of any cigarette burns?
A. No.
Q. No finding of weight loss?
A. No.
Q. No finding of bruises all over the body?
A. No.
Q. No open sores?
A. No.
Q. And no scratch marks to the face?
A. No.

CPS determined that K.C. did have some red sores on her body but they were not the result of abuse or neglect.

Second Report: On March 18, 2003, Tammy reported to CPS that K.C. had been physically neglected by Carol and sexually abused by Douglas. Tammy reported that K.C. had vaginal irritation that was not consistent with diaper rash and that this was a sign that she was likely being sexually abused and that K.C.'s hair smelled like urine and cigarette smoke and K.C. was not thriving and was underweight. Bailey met with Carol and K.C. two days after the complaint was made and found no evidence of any physical or sexual abuse. Despite Tammy's testimony that the investigations were "inconclusive," Bailey testified as follows:

Q. Did you see any vaginal irritation?
A. No.
Q. Did her hair smell of urine?
A. No.
Q. Did she look like she was under weight or emaciated?
A. No.

Bailey also testified that she did not find any signs of diaper rash or any redness in K.C.'s diaper area. Bailey saw some areas of K.C.'s skin that had red blotches and was told by Carol that the doctor had diagnosed them as eczema. The case was closed.

Third Complaint: On May 19, 2003, Tammy filed a complaint alleging that K.C. had a black eye and that it looked like K.C. had been punched in the eye. She also reported that K.C. had a vaginal irritation up inside the vaginal area that was not consistent with diaper rash (that she did not have any medication or doctor's note for the condition), K.C. had sores with pus in them all over her body (that she did not have any medication for those sores), and Carol had a flea infestation in her home. Bailey again met with Carol and K.C. at Carol's home and found no evidence of any physical or sexual abuse. Despite Tammy's testimony that the investigations were "inconclusive," Bailey testified as follows:

Q. Did you find sores with pus over her body?
A. No.
Q. Did you find any flea infestation in the home?
A. No.

Bailey spoke with K.C.'s pediatrician, Dr. Steven Alley, about Tammy's allegations of vaginal irritation and physical abuse and neglect. Dr. Alley reported that he sees K.C. on a regular basis and has never noticed anything that concerned him in her vaginal area and that K.C. had gained weight since she had been with Carol. He also told the caseworker that Carol had brought K.C. in recently because her eye was swollen from a mosquito bite and that there was no evidence of bruising to the eye. He reported that K.C. had sensitive skin and that Carol had been appropriately treating her for this condition and following his recommendations. Bailey again closed the case and ruled out Tammy's allegations.

Fourth, Fifth, and Sixth Complaints: Bailey testified that Tammy filed a series of three complaints on May 19, June 14, and July 1, 2003 against Carol and Douglas. These were handled as a single investigation. These claims were all similar to previous complaints. First, Tammy alleged that K.C. was seen at the SAFE House, where her court-ordered visitations took place, with pus-filled insect bites on her legs, scalp, and all over her body, some of which were bleeding; scratch marks that appeared to have been caused by something scraping across her back from shoulder to shoulder, and underneath the scratch marks there was faint bruising; and redness in her vaginal area that was not consistent with diaper rash. She also reported that Douglas had a history of domestic violence and is violent.

In investigating these claims, Bailey spoke with Mary Nell Timmons, a supervisor at SAFE. Timmons told her that she, too, would be concerned about K.C.'s sores if K.C. were her child. She said that they looked like flea bites. She also said that the sores on K.C.'s body looked really bad and that she had noticed redness in K.C.'s diaper area. However, Timmons told Bailey that she did not think that K.C. was being abused or neglected. She also told Bailey that she was not aware of K.C having a black eye and that she did not notice anything wrong with K.C.'s eyes. Timmons said that K.C. looked healthy, not thin or malnourished.

Timmons also informed Bailey that the SAFE staff was concerned that, when she visited, Tammy was constantly taking pictures of K.C.'s vaginal area and was obsessed with what was wrong with K.C. Timmons said that Tammy had to be told to stop taking such pictures of K.C.
Bailey interviewed Carol and Douglas and observed K.C. regarding Tammy's complaints. Bailey also had K.C. medically examined for sexual abuse at the Children's Assessment Center. She testified, in detail, regarding the 30-minute to one-hour examination that was conducted on K.C.
A. Well, I've been in there a few times. They--they kind of have to pull and twist and turn the child so they can examine and look into the vaginal area and take pictures so they sometimes have to move her into awkward positions.

Q. Is she clothed or unclothed?
A. Unclothed.
Q. Totally unclothed?
A. Yes.
Q. And in that posture, then, the person doing the exam has to move her arms and legs in rigid positions for photographs?
A. Yes.
Q. And after her legs are spread apart, are photographs taken of her vaginal area?
A. Yes.
Q. And in your observations of that, how have the children reacted?
A. Usually they're very uncomfortable. Some scream. It's not a comfortable exam.
Q. Have - would it be a fair statement to say that you've observed a tremendous amount of anxiety on children when they have to undergo that exam?
A. Yes.

Bailey testified that K.C.'s examination produced no evidence of abuse.

Bailey explained to Tammy that, after investigating her claims, CPS had not found any evidence of abuse. Tammy was upset with the examination results and believed that they were incorrect. She insisted to Bailey that the doctors had not looked at K.C. in the right way to see the redness in her vaginal area. Tammy insisted that Bailey examine K.C. herself or that CPS take K.C. to another doctor. Bailey testified that it appeared Tammy wanted K.C. to be continually examined in her vaginal area until something was found and she was not concerned about the resulting trauma to K.C. Bailey testified:

Q. Did she want the child to be continually medically examined in her vaginal area?
A. That was my impression.
Q. Did she show any concern for the trauma that this would put the child through?
A. None.

On July 1, 2003, Tammy also reported that K.C.'s right leg was injured and twisted, her right knee was higher than her left knee, K.C. had difficulty walking, K.C. was crying in pain, and she was covered in mosquito bites. Bailey testified that, when she went to see K.C. at her day care, she found her running and walking in no pain, nothing appeared to be wrong with her legs, and her right knee was not higher than her left knee.

Seventh Complaint: On August 11, 2003, Tammy reported that K.C. had vaginal irritation that was not caused by diaper change or diaper rash and that she had witnesses to this fact. She also reported that K.C.'s vagina was bright red internally and externally and that this was observed on August 9th. She stated that K.C.'s sibling had been abused by Douglas years ago and the sibling had recently made a sexual outcry to a therapist and that CPS had ordered Douglas to have no contact with K.C.'s sibling; K.C. is not able to communicate with people; K.C is showing signs of frustrated behavior; and K.C. has fluid trapped between her knees because of an old knee injury, and it is unknown if she has received any treatment. After speaking with Rita McKinley, a director at K.C.'s day care, and K.C.'s guardian ad litem, the case was administratively closed without a physical examination of K.C.

Eighth Complaint: Tammy reported on October 4, 2003 that K.C. had an irritation in her vaginal and rectal areas. Tammy reported that K.C. had bruises on her calves, she was running a fever of 102 degrees, and her legs were misaligned because of an injury. Tammy also reported that K.C. had sores for the past few weeks that appeared to be getting worse, and it was unknown if Carol had taken K.C. to have them treated. After speaking with K.C.'s guardian ad litem, a supervisor at SAFE, and a representative of K.C.'s day care, CPS administratively closed the file on Tammy's complaint without further investigation.
Bailey testified that it was CPS's position that K.C. is a healthy child and that Tammy was notified that CPS's investigations into her reports found no evidence of physical or sexual abuse.

b. Carol Whitworth

During the divorce trial, Carol testified about the effects of Tammy's claims of abuse on K.C. She stated that, in response to the five complaints in which CPS came out to her home, she had to present K.C. to be examined by the CPS case worker, the guardian ad litem, and then Dr. Alley for abuse. She testified that the process had been physically and emotionally stressful to K.C. Carol testified that it was horrible for K.C. to go through the investigations and that she had to comfort her and let her know that she was being loved and cared for. She testified that K.C. was stressed and not happy with the process, and Carol testified that she believed that the investigations exacerbated K.C.'s outbreak of eczema.

c. Bob Wooten

Bob Wooten, a captain with the Precinct 3 Constable's office, testified at the divorce trial that he received three calls from Tammy requesting that he go to Carol's house and conduct a child welfare check on K.C. After the first call, he went to Carol's home, but did not find anyone home. He testified that, after the second call, he went and observed K.C. and found nothing wrong with her. He testified that, in the third call, Tammy told him to check on K.C.'s fever. He testified that he went to Carol's home and found nothing wrong with K.C. (5)

d. Marietta Walker

Marietta Walker, the director of the day care that K.C. has attended almost every day since 2003, testified at the divorce trial that she has never seen K.C. with oozing sores or sores that were oozing pus or blood, an injury to her legs that caused her legs to be misaligned or disfigured, or a black eye that was swollen shut that made her look like she had been punched in the face. She also testified that, during K.C.'s diaper changes, neither she nor her staff had seen a vaginal rash that was excessive beyond diaper rash. She testified that, had she seen any of those things, she would have reported it to the Texas Protective and Regulatory System.

e. Dr. Steven Alley

During the divorce trial, Dr. Steven Alley, K.C.'s pediatrician, testified that he saw K.C. for the first time several days after Carol was given temporary custody. Dr. Alley testified that, when he first saw her, K.C. had a severe eczema skin condition. He testified that the condition could have been there for longer than several days, and it "was not something that had come up overnight." He testified that Carol followed his instructions on caring for K.C.'s eczema. (6) Dr. Alley testified that he saw K.C. in his office at least a couple of times a month for the past year and that he saw no evidence of the alleged abuse reported by Tammy. Dr. Alley testified as follows:

Q. So, you have seen this child numerous times?
A. Correct.
Q. Have you seen any indication of malnutrition in this child?
A. No.
Q. Have you ever seen an excessive bruising on this child?
A. No.
Q. Have you ever - and I may not say this right. Have you ever seen any excessive vaginal rashes on this child?
A. No.

Dr. Alley also testified that he did not observe K.C.'s legs to be bent and twisted, and he did not observe her covered with scars or sores filled with pus and blood. He testified that he saw K.C. with only the typical amount of mosquito bites on her extremities for a child her age. He also testified that he once treated K.C. for vaginitis which cleared up quickly with the use of antibiotics.

f. Tammy Whitworth

Tammy testified at the divorce trial that she still believes that Douglas abused K.C. and that CPS did not inform her of the results of its investigations. Tammy insists that, to her knowledge, the numerous CPS investigations into her reports were "inconclusive" as to whether abuse occurred. Tammy testified as follows:

Q. Can you tell me how many investigations have been done since this case has started through CPS?
A. No, I couldn't tell you, I don't know.
. . .
Q. And there has [sic] been quite a few, though haven't there?
A. I believe so, yes.
Q. And there's not been one positive finding yet, has there?
A. To my knowledge, they've been inconclusive.
THE COURT: I'm sorry what?

A. They have been inconclusive, to my knowledge.

Tammy testified that she also reported to CPS that Douglas had molested A.C., K.C.'s half sister. She testified that A.C. was interviewed at the Children's Assessment Center and the workers there wanted to perform a gynecological examination of A.C. for evidence of abuse. Tammy told them that an examination had already been performed and that she would provide CPS and the Assessment Center with the results. Tammy testified that she never provided the results to the Assessment Center nor did she provide those records to Jane Markley, A.C.'s therapist. Tammy testified that the result of the CPS investigation into her allegations regarding A.C. was "inconclusive."

Tammy violated the trial court's order to stop taking pictures of K.C. during SAFE visitations and was held in contempt after the court found that, on three separate occasions, she had violated the court's order regarding approaching Carol. Tammy admitted that, at the time that she made her reports to CPS and the constable's office, she was under a court order to contact the guardian ad litem before making any reports to an investigating agency and that she disregarded that order.

g. Dr. Edward Silverman

Dr. Edward Silverman was appointed by the trial court to examine Tammy, Douglas, and Carol. Dr. Silverman testified that, even after learning of Tammy's history of claims to CPS and repeated violations of the trial court's orders, he still recommended that she be given managing conservatorship. However, he admitted that learning about Tammy's history "absolutely" makes him less confident in his recommendation and more concerned about the issues those facts raise. Dr. Silverman testified as follows:

Q. Assume with me, Dr. Silverman, that you had at your disposal all of the information regarding the CPS referrals by [Tammy], the validation - the invalidation - pardon me - of those referrals by CPS, violation of this Court's order repeatedly in any number of ways, would that have made any differences at all in your ultimate recommendation about custody?
A. Well, I would have to say probably no in the sense that I have that information now and it would be incumbent upon me to change my recommendation if I felt that was warranted. Does it make me less confident in my recommendation and more concerned about these issues that those facts raise? Absolutely.
(Emphasis added.)

Dr. Silverman testified that, in his opinion, Tammy was not intentionally fabricating allegations of abuse by Douglas. He stated that, if he believed that she was intentionally fabricating the allegations, his recommendation regarding conservatorship would be different. He testified that Tammy's beliefs of abuse and conduct with respect to Douglas are reasonable and understandable in light of the "great deal of support and validation" she received from SAFE representatives and Jane Markley. (7) He testified that, in his opinion, Tammy's numerous CPS reports were made out of concern for K.C.

Based on her personality test results, Dr. Silverman testified that Tammy has "very significant emotional problems" and is "prone to hyperbole and exaggeration and this further erodes her credibility and trustworthiness with others. At times, if the end justifies the means, she may even be more blatantly deceptive and manipulative." (Emphasis added.) As Dr. Silverman concluded, "And, again those are the sort of things that make it difficult - difficult for someone to trust what she says about a lot of different things." Dr. Silverman's testimony and report of his examination of Tammy's personality traits provided the trial court with a reasonable basis to disbelieve Tammy's allegations of abuse and testimony in this case.

The record contains repeated examples of the type of deceptive and manipulative behavior described by Dr. Silverman. At the divorce trial Tammy was evasive regarding her reports of abuse, and she changed her testimony when she thought that it was in her best interest to do so. For example, on direct examination regarding her reports to CPS of sores all over K.C.'s body, Tammy testified that, prior to Carol receiving temporary managing conservatorship of her, K.C. did not have any skin problems other than three mosquito bites. When confronted with Dr. Bowman's medical records indicating that K.C. had a "rash all over body" while in Tammy's care, Tammy explained that K.C. had an allergic reaction, but she had "never been diagnosed with a skin condition." After she was accused of playing word games, Tammy testified, "Well, it's a skin problem, but not diagnosed as eczema or impetigo like has been suggested." She further acknowledged that Dr. Bowman's notes were in direct contradiction to her testimony in court that K.C. had only a few mosquito bites while in her care. (8) She ultimately admitted that Dr. Bowman's notes reflected a diagnosis of impetigo and diaper rash, seven days before K.C. was released by the court into the custody of Carol.

Dr. Silverman testified that there were things about Tammy's personality and the way she has presented herself that would make it reasonable for the trial court to conclude that she was capable of fabricating allegations in this case:

Q. But if it was in her benefit to make these allegations against Doug, she would persist in those particular items, wouldn't she? Isn't that her nature?
A. What allegations are you referring to?
Q. Say the sexual allegations. If it was to her benefit to make those allegations, she would persist in those would she not?
A. I couldn't answer that with certainty. If you're asking me whether I think that she's fabricated these allegations about [K.C.'s older sister], that wasn't my conclusion. And if it had been my conclusion then my recommendation would be very different.
If you ask me whether there are things about her personality and the way that she has presented herself that would make one think that she may be capable of doing that, I would say that would be a reasonable conclusion for someone to think that she might be capable of doing that.
(Emphasis added.)

When asked to confirm his position regarding the allegations of abuse, Dr. Silverman testified that he did not think that Douglas was a sexual predator. Dr. Silverman testified as follows:
Q. Okay in your recommendation, sir, just with respect to Doug, you've recommended that he be given visitation without supervision; is that correct?
A. That's correct.
Q. Would you, sir, give him that kind of recommendation if you, in fact, thought he was a sexual predator?
A. No.

Dr. Silverman's testimony did not give the trial court any reason to conclude that Tammy would, in fact, change her belief that Douglas was abusing her children and stop reporting him to authorities. Dr. Silverman testified from his report that, once Tammy reaches a conclusion about something important to her, she tends to hold on to this conclusion quite rigidly even in the face of contradictory information. (9) When responding to a question about whether there was ever anything really wrong with K.C., Dr. Silverman also testified that "ultimately, again even if she is the most well-intended mom on earth who is not being deceitful even for a second, if she continues to always perceive her child as unhealthy, that in and of itself would be detrimental to [K.C.]."

h. Dr. Sharon Hunt

Finally, the trial court heard evidence from Dr. Sharon Hunt, another court-appointed psychologist who examined Carol and K.C. She testified that, if in response to CPS complaints, a child is repeatedly subjected to interviews for abuse and made to remove her clothes for repeated examinations for abuse, the child's emotional development would be significantly impaired. She also testified that, if a parent who has custody continues to make unsupported claims of abuse by temporary caregivers, a child's emotional development would be impaired and that this would interfere with the child's development of a relationship with the temporary caregivers.

The trial court heard voluminous testimony regarding Tammy's history of subjecting K.C. to repeated investigations for unsubstantiated claims of abuse and her likelihood to continue doing so, thus significantly impairing K.C.'s emotional health. It also heard testimony that Tammy had a history of denying K.C. any contact with her biological father and her likelihood to continue doing so, thus significantly impairing K.C.'s emotional health.

2. History of denying K.C. contact with her biological father

During the divorce trial, the trial court heard evidence that, while she had custody of K.C., Tammy repeatedly violated the trial court's visitation orders, denying K.C. access to her father. The trial court heard testimony, disputed by Tammy, that, over the course of one year, Tammy did not allow Douglas access in 82 out of 85 court-ordered visitations. The record reflects that, after "multiple warnings," the trial court sentenced her to 10 days in jail for "continuous parental alienation against father through repeated visitation/access denials and behavior in court." Based on her behavior to the trial court, the court also deemed Tammy a flight risk with K.C. The trial court heard testimony that, as a result of Tammy's conduct, K.C. was prevented from bonding with her father.

Despite this conduct, Tammy testified that it was in K.C.'s best interest to have a good relationship with Douglas and Carol. She testified that, if she were awarded managing conservatorship, she would not "take off" with K.C. and hide her at a relative's house. She testified that, although she had violated a number of the trial court's orders, once the trial was over, she would follow the court's orders.

Tammy testified regarding her history of noncompliance with the trial court's orders. Tammy admitted that she was held in contempt for violating the court orders concerning K.C.'s visitation with Douglas, presenting K.C. for court hearings, and for her demeanor in the courtroom. Tammy testified that the trial court found her in contempt because she did not have legal representation to present her side of the case.

Dr. Silverman testified that he believed that Tammy would comply with future court orders concerning visitation with Douglas. However, when confronted with evidence of Tammy's significant history of noncompliance and his own prior testimony that the past conduct typically is a strong predictor of future behavior, he considerably qualified his testimony on this issue. Dr. Silverman testified as follows:

Q. Okay. Would you agree with me that there is a significant history of noncompliance with the Court's orders?
A. Yes.
Q. And is the past not typically a strong predictor of future behavior?
A. Often it is, yes.
Q. Why in the world, then, would we believe that during the pendency of a lawsuit [Tammy] would violate a court order over and over and over again when the custody of her child was hanging in the balance, and yet, it's your belief if I understand you correctly, that if given custody of this child, she's going to follow this Court's order once she has custody of [K.C.]?
A. I mean, I think there's good reason to be skeptical of it. It's not like I'm saying I believe very strongly and I have the utmost confidence in that. I'm coming down on that side of the fence, but, however, so slightly. Some of those violations occurred prior to [K.C.] being taken away -
Q. Yes, they did.
A. - and I think that that - sort of her perception of what could happen to her was probably a lot different then than afterwards. As far as a lot of the violations that you've talked about, I haven't had any opportunity to talk to her about what her thinking was and what - how she would explain her awareness of whether she felt that would jeopardize her ability to have [K.C.] or not.
I mean, there's no question that - that - that those violations were - were, in my opinion, self-destructive. And there's also no question that I think any reasonable person would have to wonder whether she's going to be able to conform to the requirements of the Court in the future.
(Emphasis added.) Finally, when asked about the impact to a child from being deprived of her father, Dr. Silverman responded that, "And again, not having a relationship with one's father, I think, significantly impairs one's emotional development."

Based on our review of the evidence, we conclude that the trial court did not abuse its discretion in appointing Carol as the sole managing conservator after finding, by a preponderance of credible evidence, that appointing Tammy as a managing conservator would result in serious physical or emotional harm to K.C. See Brook, 881 S.W.2d at 298. We also hold that the trial court did not abuse its discretion in awarding Tammy less than standard possession. (10)
We overrule Tammy's first and second issues.


We affirm the judgment of the trial court. All outstanding motions are denied as moot.

George C. Hanks, Jr.
Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, dissenting.

1. Tammy has two other children, A.C. and J.C., who are from different fathers.
2. We asked the parties to file supplemental briefs addressing standing.
3. The dissent apparently argues that, under the holding in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), it would be unconstitutional for the trial court to allow Carol to intervene under section 102.004(b). Troxel involved the constitutionality of a grandparent visitation statute that allowed any person to petition the court for visitation rights at any time and allowed the court to grant such rights based on the best interest of the child. Id. at 60, 120 S. Ct. at 2057. The Supreme Court held that the statute was unconstitutional because it infringed on a parent's fundamental right to make decisions concerning the care, custody, and control of her children. Id. at 72, 120 S. Ct. at 2063. Troxel does not, however, affect the issue of establishing standing to intervene in an ongoing suit affecting the parent-child relationship presented by the case before us. In this case, section 102.004(b) does not interfere with a parent's right to make decisions concerning her children. As shown below, before Carol could be awarded managing conservatorship, she was still required to overcome the strong parental presumption in favor of Tammy in a trial on the merits. See, e.g., In re SSJ-J, 153 S.W.3d 132, 138 (Tex. App.--San Antonio 2004, no pet.) (holding that Troxel opinion did not affect issue of grandparent standing because Texas Family Code standing statute does not overrule parental presumption). As courts have repeatedly held, standing to intervene means only the right to be heard, not the right to win. Id.
4. Although Tammy admits that she made similar reports of abuse to CPS, she denied making a report on this date. The trial court disagreed and made a contrary finding.
5. Tammy also testified that another officer, Constable Edmundson, did a welfare check on K.C. and found nothing wrong with her as well.
6. Carol testified that K.C. had eczema when Carol was first given temporary custody.
7. Dr. Silverman spoke to Markley and Jamie Frank, the director of SAFE, by telephone and included a summary of his conversation with them in his report. Neither Markley nor anyone from SAFE testified at trial nor were their records regarding K.C. submitted to the trial court for review.
8. In addition to playing these "word games," Tammy was evasive when she was questioned about whether she influenced K.C.'s half-sister into making an "outcry" of abuse against Douglas by repeatedly discussing her alleged abuse in front of her.
9. As an example of this behavior, Dr. Silverman testified that Tammy believes Douglas to be the biological father of A.C., despite a DNA test that states that he is not the father. Tammy stated to Dr. Silverman that it was her belief that the DNA test was inaccurate because milk products can cause bacteria that invalidate the results of a DNA test.
10. Tammy also argues that the trial court's action violated her rights to due process under the United States Constitution. However, Tammy did not assert any constitutional claim before the trial court and she has not preserved this issue for appeal. See Tex. R. App. P. 33.1. s than standard possession."

No comments: