*1 CONCLUSION Adams and knew was familiar with history driving while that he had a of circum- totality of the on the Based intoxicated, scene and ob- arrived on the stances, not have reasonable Nelson did drive-through waiting in the served Adams Therefore, we Griffey. to detain suspicion away, drove Id. at *2. When Adams lane. in its not err trial court did that the hold him for six blocks be- officer followed the facts of the law to of application The offi- stop. a traffic Id. initiating fore suppress was motion to and that the case errati- driving Adams cer did not observe the trial affirm granted. We properly Id. This violating any traffic laws. cally or court’s order. did not have held that the officer Court detain Adams suspicion to reasonable anonymous solely tip of an
based corroboration, without additional
informant previous that the officer’s
noting “[w]hile appellant may have tended
dealings with in- anonymous caller’s
to corroborate
formation, evidence of his the first-hand question tend- eyes
own on the occasion that Id. at ed to contradict information.” BLACKWELL, Appellant Angela M. Similarly, the circumstances that Nel- *6. arriving at the Whata- upon son witnessed the informa-
burger tended to contradict HUMBLE, Appellee. M. Mark received that there was tion he had lane passed drive-through out in the driver No. 03-05-00118-CV. Adams, and, Nelson unlike the officer Texas, Appeals Court of the any lacked additional corroboration Austin. Griffey had a knowledge as that tip—such Fur- history driving while intoxicated. Dec. 2007. thermore, that not reflect record does case present the citizen informant Griffey appeared intoxi- reported
ever
cated. corroboration of light
In of the lack of fact that tip
the citizen-informant and the actually contra- facts that
Nelson observed tip, in the we hold
dicted the information that a driver manager’s report in the passed out behind wheel
was lane, alone, in- standing was
drive-through suspicion to establish reasonable
sufficient intoxicated, obstructing a Griffey was crim- any other
passageway, involved of her deten- activity inception
inal at the result, we affirm the
tion. As a unlawfully Griffey de-
and hold rights of her under
tained in violation Amendment.
Fourth *4 Lanford, Cameron, TX,
Norman E. for Appellant. Austin, TX, Terry Weeks,
J. Appel- lee. PATTERSON,
Before Justices PURYEAR and HENSON.
OPINION PURYEAR, DAVID Justice. Appellant appeals M. Blackwell Angela judgment limiting from the trial court’s Blackwell ar- access to her children. gues that judge the trial should have re- cused that an sponte, assigned himself sua judge the trial judge’s should have ordered recusal, and that the trial court abused its limiting discretion in her access to the grand- allowing children’s intervene, naming mother and uncle to 7H treatment, and refrained re- recommended possessory We them conservators. except Humble communicating with from part the trial court’s verse attorneys. proceed- through parties’ cause for further and remand the ings. filed an “amended Humble On March more describing petition, supplemental” Background follow- by the children troubling behavior signed a the trial court In October alleged Humble ing with Blackwell. visits to Black- granting final decree divorce wild and uncontrol- children acted Mark Humble and appellee well and M. with Blackwell an extended visit lable after conservators naming joint managing them exhibiting simi- was behavior and that Mt. children, Mt., of their son born June son, was older lar to Blackwell’s 1996, Md., daughter Novem- born facility placed in-patient psychiatric in an place primary 1999. The ber children’s years was six old returned when he Humble, and Blackwell residence was with he removed after normal behavior rights. had visitation asserted from care. Humble di- troubling behavior that the children’s filed a motion January In *5 from they away were minished when modify, and a to for enforcement motion time. prolonged periods of Blackwell for asserting Blackwell had refused to that place would feared Blackwell Humble the to Humble’s care after return children on the children when pressure” “enormous and had Humble front a visit threatened evalua- they psychological their underwent Humble that Black- of the children. asked suspend court to tions and asked the contempt violating for the well held or, alternatively, to Blackwell’s visitation sought barring divorce decree and orders supervised order visitations. speaking requiring her from to him and arrange third-party drop her to for a to off 21, days the hear- five before On March A pick up hearing and the children. was motion, a filed ing on Humble’s Blackwell February held on Humble’s motion on 13. judge, Ed to recuse the trial court motion morning hearing, the of the Humble On prac- Magre, he and Humble had because petition supplemental asking filed a the past. Judge together ticed in the law a suspend pending court to visitation men- Judge B.B. Magre the motion referred Blackwell, alleging tal health evaluation of Schraub, Third presiding judge the dropped recently, that Mt.’s had grades de- Region, who Administrative Judicial stressed, that Mt. and that Black- seemed a on hearing motion nied the without French, say Betty told well Md. not 25 because the motion was March paternal grandmother children’s Hum- allege filed and did not sufficient timely mother, had her and kicked ble’s “choked hear- grounds recusal. The March 26 for her.” scheduled, and on ing forward as went 2, signed trial an order signed April an March the trial court On supervised two- third-parties pick-ups Blackwell to two requiring limiting order per children month ordering hour visits with the drop-offs, psychological eval- children, ordering disparaging her to make holding uations of both Be- family. or his thir- remarks about Humble contempt, suspending Blackwell in a psychologist Frank jail Pugliese, if Dr. complied Blackwell cause ty-day sentence orders, $3,000 the court to evaluate initially in at- selected paid with unavailable, the court fees, torney’s interfering refrained from Dr. Poole evaluate any David ordered psychological evaluations children within three weeks. The court visitation with the children to super- two a hearing ninety set status days. On vised visits each month. It is from this May sent a appeals. Humble letter to the Blackwell court in which he stated that Dr. Poole’s Recusal “reports gets will be done as soon as he bit of May issues, additional information.” On In her first two Blackwell argues the trial court sent Blackwell a letter stat- that the trial court judge should have re- ing that cop- enclosed the letter himself sponte. were cused from the case sua issue, ies of Dr. In' reports; reports argues Poole’s her third judge she themselves, however, have are not in should recused himself when included she filed 19, 2003, the record. her June motion recuse on issue, fourth her she contends that the On June Blackwell filed a second assigned judge granted have should motion Judge Magre, stating to recuse motion. June 2003 practiced that he and together Humble law past citing in the to rule of the 18b Rule 18a of the rules of civil pro rules of procedure. civil assert- governs disqualifica cedure the recusal or Magre ed that Judge should have recused judges. tion of A may raise the himself on his own motion or Black- motion, issue of recusal on its own Esquiv Judge again well’s first motion. Magre Ltd., Sys., el El Paso Healthcare Schraub, referred Judge the motion to Paso (Tex.App.-El assigned Clawson, Judge James pet.), party Jr. may file motion at least response, asserting filed a days ten before the date of trial or a *6 grounds the for had hearing stating grounds recusal been disclosed for the trial 18a(a). during proceeding judge’s the divorce in October recusal. Civ. P. Tex.R. judge 2002 and that Blackwell her The shall then recuse had waived either himself right to or refer the matter the Following presiding judge seek recusal. a hear- to district, ing, Judge judicial of the administrative Clawson denied mo- who Blackwell’s either to should consider the motion or assign tion recuse. judge another to hear the motion. Tex.R. August 2004, In Betty French Mon- and (d). 18a(c), Civ. P. for Grounds recusal of Humble, ty brother, peti- Humble’s a filed a trial judge lawyer include that “he or a in seeking tion intervention to be named practiced previously with whom he law has possessory conservators of the children. been a material in the witness” case. opposed petition the in interven- 18b(2)(c). Tex.R. Civ. P. tion, arguing the intervenors lacked standing to intervene. The trial court held We trial court’s decision review a hearing in September a 2004 to consider for an on a motion to recuse abuse of McElwee, petition the in intervention and recon- to discretion. McElwee v. 911 182, (Tex.App.-Houston sider Blackwell’s visitation Fol- schedule. S.W.2d 185 [1st lowing 2004, 1995, denied). a in September hearing the writ The Dist.] erroneous a signed January in denial a motion does to recuse not void 2005, finding nullify that the had had rulings. intervenors or the court’s later In re Co., substantial and continued contact Union Pac. Res. 969 S.W.2d 428 (Tex.1998). standing children sufficient to warrant to If for grounds recusal are record, family code, intervene naming fully party may under the on the a disclosed possessory right intervenors as conserva- waive her to seek recusal. Tex.R. 18b(5). tors, continuing proper to limit Blackwell’s Civ. P. a Without
713 my supervised visits with recuse, lucky to have timely motion to rule 18a’s manda testified, “I had a lot of children.” She triggered. are tory provisions never (Tex. I to me and tell me wouldn’t Beard, people come v. Beard S.W.3d denied) get and that I better get a fair trial here 2001, pet. (quoting App.-Waco Later, County.” out of Milam this moved Wright Wright, 867 S.W.2d enforceability about during arguments denied)); see (Tex.App.-El Paso writ attorney said: Humble’s (“If agreement, of the McElwee, party at 186 a 18a], sugges- comply say something to rule he waives I about [with fails must going what’s on with complain judge’s his of a failure tion about right himself.”). of its violation Court and Court’s recuse At duty alleges. point one that she par Judge Magre presided Ed over the the trial quiet must be about either signing divorce the decree proceeding, ties’ bring proper file the motions court or continu October exercised you say ... properly can’t to the ing jurisdiction over issues related corrupt then come and ask Judge is Tex. family code. children under See for his protection. (West §§ Fam.Code Ann. 155.001-.003 is attorney, who board certified 2002). Appellee lawyer Humble is since family in law and has been licensed in practice been since 1973 and whose has 1986,replied: judge father is retired trial court say I him to come also [F]or he County. Milam Humble testified that Recuse, a Motion to should have filed Magre partners together in two were try to get how I in here and dare come through firms from 1977 different law preposter- is justice from Court also They own partners 1986. were their and confi- I have absolute faith ous. years part firm for two three and then Court, gets in this once this Court dence attorneys other ners with several are. I don’t to hear facts have what years; two seven had been file if I believe a Motion to Recuse practice together for fifteen or sixteen impartial can fair and this Court years. departure his described *7 so, I I or else would have filed believe practice Magre “unpleas from his with as differently. something ant” and “rather acrimonious” “thought years [Magre] about ten was argues Judge that Blackwell first not pretty unhappy about it.” Humble did issue sua Magre should have raised the Magre any believe would show him favorit himself mo sponte and recused without ism. it signed after the decree because tion he “became, hearing at that that case clear hearing par- At the October 2002 on the enforcing a go beyond the issue of would divorce, ties’ Blackwell contested whether and contends that negotiated settlement” an agreement parties between the should made after rulings should reverse the we incorporated di- be enforced and into the and reinstate the signed the decree was decree, of Magre’s issue vorce provisions. decree’s testified that impartiality arose. Blackwell agree Magre was signed agreement Judge under du- We do not she had presid- enough to have ress, impartial “I that Mark somehow explaining, was fearful hearing temporary already Judge to ed over a June had talked [Humble] orders, not before already the record for which is Judge that he’s told the us, hearing, and the sub- arrange- made the October 2002 already case and had this decree, but sequent signing I the divorce ments for this case and that would impartial not enough Schraub, to have continued to to Judge referred motion who jurisdiction exercise it, over the case after the finding denied it was untimely filed and decree was finalized. At the hear- October allege failed to grounds sufficient for recu- parties ing, disputed Black- whether sal. signed agreement voluntarily well later, Three months in June Black- duress, argued under which she was at motion, well filed a asserting second Hum- least in part due to her concerns about Judge Magre’s ble’s and relationship work deal back-room between grounds stating as for recusal and Judge Magre. concerns, Despite those Judge Magre should have himself recused however, Blackwell’s board-certified on his own Judge Magre again motion. experienced attorney stated she did not Schraub, referred the to Judge motion judge’s ability doubt to be fair did assigned Judge to Clawson consider the not want to file a motion recuse. Even July In Judge motion. held Clawson if Magre we were to that Judge assume hearing language considered the duty had an absolute raise the issue of 18b, provision rule including stating motion,
recusal on his own Blackwell stat- that parties may rights waive their to seek ed she did wish judge have the recusal. He noted his discomfort with the recused, and any Blackwell has not cited way written, concluded, the rules are authority require would Judge Magre statutes, think, “The structure of the I ... to insist on recusing par- himself over the you is such that have conclude that the ties’ wishes. We overrule first Blackwell’s contemplates rule that this can be waived two issues. you go interpretation and if with that then Turning next argument to Blackwell’s been has waived and I therefore would motion granted should have been Judge overrule the Motion to Recuse Judge and that Magre should have recused Magre.” motion, himself when she filed the note we testimony that Blackwell’s shows she was June motion relationship Judge aware of Humble’s year filed a was after the first hearing Magre well before the October hear eight the case and months after decree ing. Despite knowledge, signed. relationship The be prior did not file a motion to recuse before the Judge Magre tween Humble and was well signed. Although decree was she testified and was known discussed October 2002. that she worried that Humble had worked Thus, the untimely. June 2003 motion was Judge out an agreement Magre be 18a(a), 18b(5); Beard, See Tex.R. Civ. P. trial, fore when Humble raised the issue of *8 Further, 49 at S.W.3d 51. Blackwell’strial judge’s impartiality, the Blackwell’s attor explicitly counsel stated that she did not ney in stated no uncertain terms that she question Judge Magre’s impartiality and did not want to file a motion to recuse and did not want to have the judge recused. Judge Magre believed would be fair Having reporter’s reviewed the records impartial. Her five motion was filed later, from the July October 2002 and hear 2003, months in March 2003 late one ings, we cannot that Judge month after the court hold Clawson trial modified its in abused his denying divorce decree and held Blackwell in con discretion Black decree, Likewise, well’s motion to recuse. we can tempt violating for the and was that Judge Magre, insufficient under 18a it did not hold we rule because have grounds not state held did not his in for recusal. See Tex.R. abuse discretion not Nevertheless, Magre recusing Civ. P. 18a. Judge sponte, legally himself sua a a modification of To obtain Black- to recuse himself once obligated party conservatorship, a managing joint filed. untimely motion to recuse was well’s (1) a material and substantial must show third and fourth We Blackwell’s overrule (2) that the change in circumstances appeal. issues on best intere change be in the child’s would a trial modifi review st.2 Id. We Access to Her Children Blackwell’s conservatorship joint managing cation v. an of discretion.3 Echols Oli for abuse 2003, 2, signed April On the 475, varez, (Tex.App.-Austin modifying govern- an the provisions order in 2002, is the no “The trial court pet.). The court ing of the children. possession the position to observe demeanor best con- allegations “that found the material can ‘feel’ of the witnesses personalities Supplemen- in Amended [Humble’s] tained forces, influences that can powers, and the request- tal are true and that Petition reading by merely not be discerned ed the best interest modifications are record,” an abuse of and we will not find and ordered vis- children”1 Blackwell’s substantive, pro provided some discretion supervised restricted to two-hour itations court’s deci supports bative evidence Wednesdays of visits on the first and third applying the abuse-of-dis sion. Id. When judgment, signed In each month. its final trial to a court’s decision cretion standard 25, 2005, January court trial continued posses modify provisions its related provisions. In her those same modified custody we ask first sion issue, fifth Blackwell contends that had sufficient infor whether the court trial court abused its discretion restrict- discretion, mation on which to exercise its ing her access to and of her review, sufficiency applying a traditional that the court argues children. Blackwell so, reasonably in if whether it acted its its de- by modifying abused discretion at of its Id. application discretion. cree because did show 477-78. parties’
change circumstances Summary Factual justify the modification. Tex. would See (West § Supp. Ann. Fam.Code 156.101 February Sep 2003 and Between 2007). She further contends the four hear tember the trial court held incorporating abused discretion to Hum ings in evidence relevant which modified visitation into its final modify was introduced. ble’s motion carefully transcripts have January reviewed the issued 2005. We manag modifying joint petition, The "supplemental” his Humble set 2. standard for 1.In allegations stringent ing conservatorship out various related less than that is of the children and children’s managing treatment modifying applied a sole con- following an extended visit Olivarez, behavior servatorship. 85 S.W.3d Echols separa- He stated that since his Blackwell. pet.). (Tex.App.-Austin Blackwell, had mate- tion from circumstances substantially rially changed in Black- J.R.D., re 169 S.W.3d 746-52 3. See In cooperative longer being was no well denied) *9 pet. (Puryear, (Tex.App.-Austin complying or with the trial Humble J., of concurring) (arguing that standards re- alleged had that Blackwell orders. Humble conservatorship issues are applied to view vague threatening begun him "with revela- pa- nature of with constitutional inconsistent shortcomings,” arbitrarily about his tions arguing rights rental and that clear-and-con- moving pick-up drop-off and times related vincing applied). be standard should visitation, "flying rage a about in to [sic] things.” small 716 said, all hearings poisoning
from of the and will condense ble “This continued of the testimony hearings from the various children.” Humble said that Blackwell’s summary into brief to assist in our re negative very unhealthy remarks were ruling. view the trial court’s Some of why the children. Mt. had asked Humble was testimony parties’ pre- about he “run had Mama out or of the house” divorce conduct or about Blackwell’s three “[i]nto Street” and told Humble that older who part are he could do he at whatever wanted to proceeding. We recognize that evidence begun Md. “par- house. had pre-divorce by conduct is not itself rele as, things roting” going such ‘Tour [sic] modification, vant or admissible to obtain a and, years,” die in sixteen “I can’t smell such may evidence to cor offered alcohol, Daddy, can.” but Mama When allegations roborate of simi and evidence why abruptly Humble asked Md. had de- lar conduct since the decree. Hollon v. cided she disliked of Humble’s one friends Rethaber, (Tex.App. close, said, with she whom had been Md. writ) (quoting -San Antonio Wil I I’m supposed “How do know who Elliott, son 96 Tex. S.W. (Tex.1903)). believe, only I’m four?” Humble testified that having the children were bad dreams pre-divorce 1. Evidence of conduct or Blackwell, that Mt. was unhappy related older to Blackwell’s children withdrawn, grades that Mt.’s were during Humble testified that their mar- declining, and that Mt. had started to show riage, Blackwell told him had she been oppositionally defiant behavior similar to personality diagnosed with borderline dis- by E.B. Humble that exhibited said E.B., He also Black- order. testified after the children returned home after a son, diagnosed well’s oldest had been Blackwell, long visit their “behaviors oppositional defiant disorder and was a astoundingly were He also testified bad.” dangerous child and a psy- committed to being that Blackwell Md. to lie about told month hospital chiatric for a when he was by abused French: years six old. wit- another placed ness testified that once E.B. was said lied when she said that [Mt.] [Md.] father, biological with his he into “a turned ], Nana had and kicked he her[ choked thought wonderful child.” Humble Black- lie, said “That’s a because didn’t daughters two well’s older were anti-social happen” very promptly said [Md.] sociopathic. Andy or An- Sondra lie, “Daddy, I didn’t Mama told to me drews, neighbors, Humble’s testified about say that.” during marriage several incidents After Blackwell’s visitations had been they neglect ignore when saw Blackwell or month, Mt., limited to two supervised left to road or visits busy was cross play on a beach himself. Blackwell Humble testified that Mt.’s mood had im- diagnosed with a being denied borderline proved, he gained had weight self- personality, explaining during gradu- confidence, improved reading he had in his diagnosed ate school a classmate her with ability, longer discipline and he no had personality. features of borderline school at issues at home. Humble also doing said Md. was well and was well- post-divorce 2. Evidence related to con- adjusted happy. duct al- reported After Blackwell French’s changed Asked what circumstances had leged Md., Hum- called signed, police since the divorce decree abuse of Child *10 Hightower around to allow Case- was safe investigate. Protective Services children, said, you she “I don’t interviewed Soechting worker Shannon know— occurred, I know, incidents Md., felt at Hum- when these who that she safe said if his Mt. told know he was on medication.... and French’s houses. don’t ble’s medication, know I don’t Soechting hit him or he’s his that French never When said Md., problem.” and Blackwell allegations French denied the that there’s truthful, her not to allow Soechting and that if the court ordered appeared Md., Mt. and she would Soechting allegations. Hightower out around ruled Hightower and had never comply that she a retired that French testified or children. very violent toward her her registered nurse and was close been into choking or trial court admitted evidence the children. French denied The from shortly after of email communications kicking Md. and testified that number including divorce, said, people, to various says you’re Hightower Md. “Mother Blackwell, Humble, Humble, and Humble’s attor- Don Humble’s fa- a stink-head.” ex-husband, and ney. Many testified of the emails were violent ther and French’s tone, Hightower in threat- caring threatening children that while he was for the said, thought “I men recently, Md. hate ened to hunt down several he [French]. Nana behaving inappropriately hurts then to him toward Nana me.” She turned were said, you, to kill one man you “I like hit me.” Blackwell threatened don’t however, true, emails, that In other particular. Don told her she knew was not in it,” any- if it would never harm giggling Hightower and Md. “started as said he joke. in control himself. were a one and that he was many that of the threat- Blackwell testified babysat McGregor, Darnesha High- made ening statements were while hurt the never saw Blackwell was off his medication. tower Humble, fight children or but testified hit, French had that Blackwell told her that Blackwell told Blackwell believed choked, Md. that Md. that is mean and kicked and said [French] “Grandmama hit you.” McGregor and she further testi- French had beaten and choked divorce, that oldest fied since the Blackwell said when he was a child. Blackwell’s negative that she had never seen things about Humble in front child testified Andy Andrews, Hightow- mother and children. who was violence between her school, Md. not think Mt. and principal former of Mt.’s testified er and she did more Mt. if Blackwell had “very danger became withdrawn” after would be thought the divorce and that Mt.’s teacher One of Blackwell’s coworkers visitation. intervention, Black- testified that help, Mt. needed “some some and one of friends good, parent attentive possibly counseling.” some well was or inappropriate behavior they never saw married testified she Humble in front disparage heard her Al- Hightower Kendall June 2003. the children. though she filed for divorce June Psychologist Pierce testified the divorce was on hold while Charles proceeding personality their disorder Hightower tried to work out about borderline she that a High- symptoms general said marriage. Blackwell testified that cycle be- swings, with the disorder would bipolar parent tower is and has mood medication, anger neglect, affection and which are moderated tween medication, and harm a child. taking he his he would confuse stops when which Hightower’s med- very erratic. Asked whether Dr. Pierce also reviewed becomes *11 records, C.Q.T.M., Hightower tionship. ieal which showed See In re 25 S.W.3d stopped taking denied) medications pet. his because he 734 (Tex.App.-Waco well, believed he he could not was afford (remarriage and step-parent’s conduct and them, dysfunc- he did not like sexual may abilities be considered modification caused, tion they and “his wife had asked proceeding). There evidence that him to stop taking the medications because divorce, behavior, since the the children’s dysfunction.” the sexual Pierce noted performance, school and moods had suf Hightower’s paranoid delusions and homi- fered and that children both exhibited be cidal Hightower threats and said “would havior showing manipu that Blackwell had dangerous anyone around who set off lated them bad saying things into that mood in that kind of condition.” Dr. Humble and trial his mother. The court Pierce did not or examine treat the chil- obligated as fact-finder was to consider all dren, although the record reflects that any evidentiary evidence and resolve Dr. Poole the children pro- evaluated conflicts. Lilley Lilley, See 43 S.W.3d reports duced for the court and the 705 (Tex.App.-Austin pet.). no parties, reports his are not contained in The trial court did not abuse its discretion record, by parties mentioned in in determining there was evidence any hearings, or referenced the trial from which it could conclude that the cir Indeed, court’s later orders. record changed-and cumstances had that a modifi does not reflect the trial court whether cation would be in the children’s best in reports read or in reaching considered the terests. See Tex. Fam.Code Ann. its decisions. § 156.101. consider We next whether the trial court properly exercised its discretion
Change Circumstances determining placed the restrictions on We ask whether first the trial possession Blackwell’s and access. probative had substantive and evi dence on which to base decision that Restrictions on Possession Blackwell’s parties’ changed circumstances had so argues appeal Blackwell justify as to a modification of the conserva- on her are placed restrictions “draconi Echols, torship provisions. See 85 S.W.3d an,” “usually for mothers reserved at Although 477-78. several witnesses child, have burned or scalded broke[n] testified that was a good, atten child, limb, exposed child’s a child beaten a tive mother who abused chil never dangerous [drugs], narcotics and sexual dren, testimony there was also since ly boyfriend abused the allowed a child or divorce, neglected she had the children to do so.” that there is argues She and disparaged family Humble and his restrictions, justify evidence to other presence, their which confused and de than “simply doing the trial for his pressed the See In re Marriage children. ex-partner, ex-partner whatever asks (Tex. Chandler, 914 S.W.2d him to do.” writ) App.-Amarillo 1996, no (poisoning against parent grounds Certainly, presented child’s mind can be was evidence there modification). Further, the trial court she had mar this case on which could bipolar ried a man who is and who made have determined that the children’s best people by restricting violent threats her and interests would toward he be served perceived interfering possession with their were rela access.4 How- L.M.M., 4. We bear in the distinction See In re mind between access. No.
719 appoint such the court finds that would tors unless ever, findings record lacks significantly impair the ment “would trial determine us to whether allow devel health or emotional physical child’s its discretion appropriately court exercised V.L.K., 153.131; § re see In Id. opment.” it chose. the severe limits that imposing 338, (Tex.2000) (chapters 24 343 Therefore, of portion we must reverse proceedings) and (governing original 153 pos- that denies proceedings) (governing modification 156 super- limits her to two session and access that in statutory schemes are “distinct case a month remand the vised visits differ impose different issues” volve proceedings. for further proof, and burdens of ent standards to dis It is left a trial court’s are not carried presumptions 153 chapter condi to establish the terms and cretion 156). chapter into over L.M.M., conservatorship. of In re tions 153, governs original which cus Chapter 2094758, 03-04-00452-CV, at No. 2005 WL a trial tody proceedings, provides 7191, *9, Tex.App. at *28-29 2005 LEXIS presumption a guided is to be 31, 2005, Aug. pet.) no (Tex.App.-Austin pro order possession the standard trial the author (mem.op.). The court has time “minimum amount of vides the of ity frequency to determine and duration by parent a a named as possession of child limita place any necessary to visits and conservator,” managing Tex. Fam. joint a Id. safeguards on visitations. tions 153.137, § the court although Ann. is Code 2094758, *9, Tex.App. at WL 2005 2005 possession. to order standard required not 7191, at *29. The child’s best LEXIS L.M.M., if we discussed In re As primary is the consideration interest proceeding in a court decides modification parent’s limit a of deciding possession possession not in the that standard is child, Roma Ditraglia and access to her interest, may deny posses best child’s no, 886, (Tex.App.-Austin 33 S.W.3d 889 placing access or craft an order sion and 2000, express pet.), family no code possession on or access that restrictions general strong presumption es a that it is danger posed will eliminate ly signifi in a child’s best interest to have well-being. or physical child’s emotional both Tex. parents.5 cant contact with See 2094758, *9, Tex.App. 2005 2005 at WL (West 2002), § Ann. Fam.Code 153.131 7191, at In re (quoting *29 Wal LEXIS (West § Supp.2007). 153.137 Absent ters, 280, (Tex.App.-Texar 286 39 S.W.3d violence, family may not, finding of A court pet.)). no kana original however, rights con of considering proceeding deny an a conservator’s finding appoint should and access absent cerning conservatorship possession endanger the joint and access would parents managing as conserva both *11, 00452-CV, right parents chil- at The natural between 2005 WL 5. 03-04 — (Tex.App. Tex.App. See LEXIS at *34 dimension. Hol- dren is of constitutional 31, 2005, (ac Aug. (mem.op.) Adams, (Tex.1976). pet.) Austin ley v. 544 S.W.2d and communi cess allows conservator to visit argument raises a constitutional child; possession allows conserva cate with appeal did not it before raise exclusion to exercise control over child to tor Therefore, it. not address See we will court. others); Ann. also Fam.Code see Tex. of 33.1; Dep’t v. Tex. Tex.R.App. P. Carrizales 2002) (West ("Joint managing con- § 153.135 Servs., Regulatory 5 S.W.3d & Protective servatorship require does not the award denied) (con- (Tex.App.-Austin pet. equal periods physical pos equal nearly challenge in trial court not raised stitutional each of and access the child to session of appeal). is waived on conservators.”). joint welfare, denied) “any child’s limitations on (appointment party possesso- as rights ry implied showed finding such cannot exceed that re conservator [sic] party’s “possession or access to chil- quired protect the child’s best interest.” endanger dren physical *13 would the 2094758, *9, 2005 Id. WL at Tex.App. 2005 children”). emotional welfare of the The 7191, LEXIS at *29-30. trial court’s denial of posses- Blackwell’s Under the trial judg- court’s modified sion and severe its restrictions on ac- her ment, rights Blackwell retains limited give children implied cess the rise to Md., to Mt. access has been she findings arising that conflict with those possession. denied 2005 WL See id. joint from her continued status as a man- 2094758, *11, Tex.App. at 2005 LEXIS aging conservator of the children.7 7191, at *34. Although recognize that we sufficient support There was evidence to trial the court did not altogether deny the trial decision that some limita- right Blackwell’s to access to the possession tions on Blackwell’s and access closely which we would scrutinize to be would be in the children’s best interests. supported by grounds,” sure was “extreme However, severity the duration and of the Allison, 134, see Allison v. 660 137 S.W.2d difficulty restrictions the 1983, writ), (Tex.App.-San no Antonio the will seeking face in future modifications placed severe limits on her contact her her might allow more contact with her children still careful require our re- children cause us some concern. While view. may the trial court have believed that the The trial court did not make and Black- justified evidence the severe it restrictions fact, request did not findings well which Blackwell, placed on those restrictions generally making implied results in our seem with the court’s decision inconsistent findings supported by the See record.6 managing to maintain her as a conserva- Niskcir, v. Niskar 136 753 S.W.3d tor, speculate are left to we However, (Tex.App.-Dallas pet.). what, fact, it the did believe. Because by continuing Blackwell’s as appointment findings trial court made no of fact and joint managing conservator in the orders implied findings spring because the here, in question impliedly the trial court in con- from the court’s determinations are found that her of or access to flict, guiding we unable to discern what are children significantly would not endan- applied principles rules and court ger physical their or emotional welfare. appropriately court whether the exercised 153.131(a); Tex. § See Fam.Code Ann. denying pos- discretion Roosth, v. Roosth 451 limiting her to her chil- session and access (Tex.App.-Houston writ dren. [14th Dist.] recognize light
6. We that section 156.101 of the tact with her children in of the court’s family specifically require code does not a finding that was in children’s best inter- findings trial court to make written of best joint managing est to remain a for Blackwell proceeding. interest in a modification Tex. conservator. (West Supp.2007). § Fam.Code Ann. 156.101 However, section 156.101 bars temporary 7. The order first limited modifying custody from order unless the the trial Blackwell’s visitation stated that modification is in the child’s best interest. Id. allegations court “that the material found Based our review of the record and with- Supplemental contained in Amended Peti- explicit explanation findings more out requested tion are and that the modifica- true court, we do not believe we can the best tions are in interest of the children.” properly evaluate the and re- modification placed strictions on Blackwell’s con- in the children’s best Blackwell are indeed that Blackwell not ex recognize We did required of best not exceed those the issue interest interests and do plicitly raise However, L.M.M., she attacks appellate brief. children. See protect deciding and in globally, *9, Tex.App. modification LEXIS at WL contact her chil modify parent’s therefore reverse the at We *29-30. dren, children’s best interests must restricting Black portion of the primary always the trial court’s con to the and remand case well’s visitation § 156.101 cern. Tex. Fam.Code Ann. See proceedings further consis trial court for (modification conservatorship existing Hopkins See opinion. tent with this L.M.M., order); also 2005 WL see (Tex. 134, 138-39 *14 Hopkins, 853 S.W.2d 2094758, *9, Tex.App. at 2005 LEXIS writ) (“As 1993, no App.-Corpus Christi (court may possession at *29 limit findings contradictory, are the trial court’s access if would endan standard case to the trial court ... we remand the interest). ger We the child’s best share appel whether may so that determine that, agree general dissent’s concerns children is the chil lant’s access to the ly, we defer to the trial court’s should so, interest, and if what limita dren’s best reviewing orders. modification rights possessory as appellant’s tions However, imposed the trial court because in in the children’s best conservator are on contact strict restrictions terest.”). children, with her which we must consider ignore carefully, we cannot the issue Intervenors ignore best and cannot the fact interest issue, that, final In her explanation, some the trial sixth without complains would seem to the abused orders be based children’s conflicting findings. allowing grand- best interest Under discretion in given passage ap- these circumstances and and in mother and uncle to intervene of time the trial court restricted since pointing possessory as conservators them children, Blackwell’s contact with the we of the children. remand,
believe that which will allow the may orig A not file an non-parent parties’ trial court to consider the circum possessory named seeking inal suit to be anew, stances as well as additional testimo conservator, grandparent a other ny any evidence available trial court finds has had person who the conditions, psychological children’s is may a contact with child past substantial give best will court solution. Remand in a pending intervene granted leave to to resolve some of the opportunity custody. Tex. Fam. concerning suit child have conflicts that we discussed and 102.004(b)(West Supp.2007).8 §Ann. the restrictions on Code placed ensure that R.S., legislature § ch. 2005 Tex. Gen. Laws 8. In amended section (effective 18, 2005, add a further on some- 102.004 to condition current version June seeking possessory 102.004(b) (West one intervene and seek § Tex. Ann. at Fam.Code statute, conservatorship. Under amended Supp.2007)). proceedings were under- These person significant grandparent or a way amended statute’s effective before the past may pending in a suit intervene contact date, thus, apply at we the version effect only "satisfactory proof is ... if there 3155, § the time. Id. at 25. Because the appointment parent managing of a as sole changed language above was referenced joint managing parents as or both conservator amendment, we cite to the current significantly impair” the conservators would 6, 1995, Leg., Apr. 74th version. See Act 29, 2005, May Leg., child. 79th See Act We review a trial court’s decision to allow the trial court in allowing erred him to petition in intervention for an in appointing abuse of intervene and him pos- as a Watts, sessory discretion. McCord v. conservator. por- We reverse that writ). judgment. tion of the (Tex.App.-Austin 1989, French, As for based on the evi French was asked about When dence about post-divorce circum petition intervention, she said she stances, we cannot hold that the trial court legal wanted to have defined rights to the abused its allowing discretion in her to children. Asked whether having she was intervene. She frequently cared for the trouble seeing the children and what the nearby, spent lived a great purpose was, of her petition she answered deal family, of time with the and the trial that she was able to see the children and reasonably could have determined wanted to see them healthy have develop that she showed substantial past contact ment. She agreed when asked whether with the children. We must then consider she would want to raise the children whether the trial court abused its discre should anything Humble, happen say *15 tion in naming possessory conservator. ing, “I feel I’m competent like I and think in would be the children’s best inter If a managing child’s conservator Humble, est.” Monty brother, Humble’s incapacitated dies or is right and the to testified that he wanted to have defined possession governed by of the child is not legal rights to the protect children to order, an parent superior rights has them. He testified that he had “seen them possession non-parent. over a See In re regularly during their lives.” He said that P.D.M., 117 S.W.3d 459-60 (Tex.App. purpose” “current petition of his denied) (death -Fort pet. Worth to be co-possessory conservator, named managing conservator ends conservator- not to be named a future managing conser ship order for possession purposes, and if vator, but that he to be available “want[ed] dies, managing conservator parent “some if Mark is unavailable.” He testified that one must possession take immediate of the key “the issue is whether children, the children possessory and the conservator could visit us present without Mark and parent’s right of immediate is whether wé would be superior able to take care of rights”); to others’ see also Tex. (West during 2002). them that time.” § Fam.Code Ann. 157.376 If appoints conservator, a court managing agree We with Monty Blackwell that it “may” appoint possessory one or more Humble did not show that he had “sub- conservator as well. Tex. Fam.Code Ann. past stantial contact” with the children. (West 2002). § 153.006 Monty only testified that he had “seen them regularly.” more, Without this does Humble testified that he wanted not show past substantial contact sufficient his mother legal rights and brother to have intervention, to warrant his especially in to care for the children in anything case case which both parents living are happened to him and that he did not want present testimony there is no that Blackwell ever to primary custody have the children are at living risk with Hum- over the children. He worried that if Therefore, ble. meager based on the facts Hightower was “fed” an idea about the presented regard Monty to Humble’s of a prominent murder man in a small relationship with the we hold that town and then told Humble was “like- R.S., § ch. 1995 Tex. Gen. Laws 125. (discussing pet.) too no
ly Hightower, App.-Beaumont kill” “it doesn’t take factors in conserva- maybe Holley application out that A B is figure plus much to adoptive potential sending torship dispute between It’s like going equal C. sort of grandmother). and maternal parents or like a him at me Manchurian Candidate argued something.” essentially circumstances, Further, in the present kill Hightower try to that he feared would practical ef- appointment has French’s that he mother or hurt him and wanted his happen to Hum- something fect. Should appointed possessory and brother to be have ble, then would ensure other conservators to that someone how to best serve the children’s determine would the children. than Blackwell care for deciding how allocate best interests Humble, care between Blackwell their and Humble testified French at that considering presented situation relationship French had a close Considering presented time. the evidence spent significant amounts of children and case, that the we cannot hold by this nurse, French, them. a retired time with naming abused discretion make decisions helped Humble health-care possessory conservator. French took sometimes the children to babysat care helped doctor. She also Conclusion Further, children. Humble testi- did have held that the trial court We feared could be Hightower fied that he sponte sua by failing err to recuse itself if he was dangerous led to believe motion, that untimely upon Humble was a threat. was testimo- There assigned denying court did not err ny Hightower’s instability *16 mental recuse, motion and that Blackwell’s to and about how children suffer when allowing did not French trial court err for time. long periods Blackwell’s care naming possesso- and in her a to intervene and are named Blackwell both error, however, ry conservator. It was and, joint managing conservators there and Monty Humble to intervene seek allow fore, judgment the trial court’s does not Fi- possessory be named conservator. presumption run afoul of section 153.131’s cannot review nally, adequately we in a that it is child’s best interest for her on Black- trial court’s severe restriction parent parents appointed manag to be to her chil- possession of and access well’s ing See Ann. conservator. Tex. Fam.Code Therefore, portions we reverse the dren. 153.131(b) (West 2002). § Hum Because judgment appointing of the court’s joint managing ble and Blackwell are con Humble as conservator Monty possessory servators, ap power had the restricting access. We re- point more possessory one or conservators. cause to trial court for fur- mand the § 153.006. this case dif Although See id. to Blackwell’s proceedings ther related cases involving appoint fers from most of and to her possession access children. non-parent possessory ment of conserva tors, hold trial court we cannot that the Concurring Dissenting Opinion by deciding its discretion in abused PATTERSON. Justice name in the children’s interest to best Justice, PATTERSON, P. JAN possessory as conservator. See French concurring dissenting. Adams, 367, Holley v. 544 371-72 S.W.2d (Tex.1976) I (discussing consid Because would affirm factors to be interest); majority’s I in the determining respects, concur child’s best all ered (Tex. M.A.M., 788, regard first four issues In 790 to the opinion re 35 S.W.3d 724
and dissent remaining (1) from the portions pronged inquiry: did the trial court that reverse and remand long-suffer- have sufficient upon information which to ing appeal to (2) the trial court. discretion; exercise its did the trial court err in application of discretion? We are to review a trial court’s decision 477-78; Lindsey Id. at Lindsey, control, custody, possession, and visita 589, (Tex.App.-El Paso tion discretion, matters for abuse no pet.). The traditional sufficiency re reverse the trial only court’s order if we view play regard comes into to the determine, reviewing from the record as a question; first proceed we then to deter whole, that the trial court abused its dis whether, evidence, mine based on the cretion. See In re Jane Doe 19 S.W.3d decision, amade reasonable (Tex.2000); Turner, 281-82 Turner v. is, whether the court’s decision was arbi 47 S.W.3d 763 (Tex.App.-Houston [1st trary or Lindsey, unreasonable. 2001, no pet.). Generally, Dist.] orders S.W.2d at 592. arising from modification suits will not be disturbed unless the complaining party can As argues in her fifth issue demonstrate a clear abuse of discretion. regarding possession, access and the trial v. Stamper, 801 S.W.2d temporary order has been in effect Worford (Tex.1990). Such an 2, 2003, abuse of discretion April “being since by modified occurs when a arbitrarily, trial court acts Judgement herein, being appealed dated unreasonably, or regard 25, 2005, without to guiding January only by changing the principles. rules or Id. That a trial court person supervise name of the the visits may decide a matter within its discretion to a deputy regard sheriff.” With to her ary authority in a manner different from possession access to and of the an appellate court in a similar circum Blackwell contends that the trial judge stances does not an demonstrate abuse of “abused his in ordering discretion the re- discretion. Aquamarine Downer v. Oper stricted in the place first ators, Inc., (Tex. 701 S.W.2d 241-42 continuing it in permanent Judgment” 1985). “by not setting program out a *17 phasing Appellant back into standard visi- In our review of a modification order tation.” standard, under an abuse of discretion le gal sufficiency and factual indepen are not In the modification orders dated March error, grounds 7, dent 2003, 2, 2003, of but are relevant and April the trial court factors in deciding whether the trial expressly court in found and stated its written abused its discretion. See v. Mi orders that requested modifications Zeifman chels, 582, 212 S.W.3d (Tex.App.-Aus were the best interest of the children. 2006, denied); D.S., tin pet. In re 76 In proceedings the 2004 resulted S.W.3d 516 (Tex.App.-Houston 25, 2005, January [14th the dated Norris, pet.); Dist.] no Norris v. 56 court found that it continuing, had exclu- (Tex.App.-El case, S.W.3d jurisdiction Paso sive Betty found pet.). no apply Because we an of Monty abuse French and Humble to have stand- standard, discretion the traditional suffi ing appointed co-possessory them con- ciency servators, standards of review overlap, and changed the name of the appellate apply hybrid analysis. courts person supervise Blackwell’s visits to a Olivarez, Echols v. deputy 476-77 sheriff. Based on Blackwell’s (Tex.App.-Austin pet.). “global” Under attack on the modification order hybrid analysis, it, this engage majority we a two- as the majority describes (i) objected its order and that port finds that on the modification court abuse its discretion. ground that the trial failed to include trial court did not review, the its of “best interest” in its final trial iteration Given standard (ii) judgment; preserved she this not court’s decision was unreasonable ground. objected arbitrary. Blackwell neither ground, it preserved. nor is support evidence
Finding sufficient decision that limita- trial court’s “some
tions on access interests,”
would in the children’s best majority disagrees nevertheless “severity” difficulty
their and “the Black- E.K., a In the Matter of child. seeking well will face in future modifica- might tions that allow her contact more No. 05-07-00125-CV. Notwithstanding children.” Texas, Appeals of Court of request findings failure to Blackwell's Dallas. fact, majority these finds restrictions seemingly inconsistent with the trial 14, 2007. Dec. court’s to maintain decision Blackwell as managing conservator concludes speculate”
“we left to about what the are
trial “believed” the to be. court evidence judgments go
These to the heart a trial discretion, may and we substi- not
tute judgments our of the trial
court.
Likewise, I would conclude in ap- did abuse discretion
pointing Monty possessory Humble as majority
conservator. The not find does in granting the trial court erred Mon-
ty standing, only that there were
“meager testimony his facts.” Because regu- had seen the
showed that he children
larly during their lives was uncontro-
verted, trial court did not abuse allowing his intervention and
discretion co-possessory him a conserva-
appointing
tor. evidence of a substantive and Some
probative support character exists
trial decision. In the absence of mandate, there is no abuse of
statutory
discretion.
I would conclude extensive—
albeit establishes that stale —record sup- had sufficient evidence to