Bhan v. Danet
| Decision Date | 30 January 2013 |
| Docket Number | No. 01–10–00963–CV.,01–10–00963–CV. |
| Citation | 402 S.W.3d 668 |
| Parties | Jessica BHAN, Appellant v. Bryan James DANET and William Todd Kranz, Appellees. |
| Court | Texas Court of Appeals |
OPINION TEXT STARTS HERE
David A. Becker, Vinson & Elkins LLP, Austin, TX, for Appellant.
David George, Connelly * Baker * Wotring, LLP, Terry Lea Elizondo, Houston, TX, for Appellee.
Panel consists of Justices JENNINGS, SHARP, and BROWN.
Appellees, Bryan James Danet and William Todd Kranz, have filed a motion for rehearing and a motion for en banc reconsideration. SeeTex.R.App. P. 49.3, 49.7. We deny Danet and Kranz's motion for rehearing. And a majority of the Court has voted to deny their motion for en banc reconsideration. We withdraw our April 12, 2012 opinion, substitute this opinion in its place, and vacate our April 12, 2012 judgment.
Appellant, Jessica Bhan, challenges the trial court's August 4, 2010 order, entered after a jury trial, appointing Danet and Kranz as the sole managing conservators of Bhan's minor child.1 In her first two issues, Bhan contends that the evidence is legally and factually insufficient to support the jury's finding that her appointment as sole managing conservator would significantly impair the child's physical health or emotional development and the trial court erred in not allowing her to present testimony from out-of-state witnesses via telephone. In her third issue, Bhan requests that this Court enforce the parties' partial-settlement agreement, signed after the trial court's order, depending on the resolution of this appeal.
We reverse and render judgment.
On March 31, 2006, Child Protective Services (“CPS”) removed the child from the custody of Bhan and placed him in the foster care of Danet and Kranz. Although CPS chose not to seek termination of Bhan's parental rights, Danet and Kranz, on October 2, 2007, filed their petition in this suit affecting the parent-child relationship (“SAPCR”), seeking appointment as the child's joint managing conservators. In response, Bhan filed an amended answer and original counter-petition, seeking appointment as the child's sole managing conservator. On February 2, 2008, the parties entered into a “Rule 11 Agreement for Temporary Orders,” 2 requesting that Kranz and Danet serve as temporary managing conservators of the child and Bhan as the temporary possessory conservator of the child during the pendency of court proceedings. On May 9, 2009, the trial court entered agreed temporary orders to the same effect.
At trial, Kranz testified that he and Danet had taken care of the child for four years and four months. After CPS decided not to seek termination of Bhan's parental rights, he and Danet, in October 2007, decided to “get involved in the case” and file their SAPCR petition to be appointed as joint managing conservators. When they first received custody in April 2006, the child was seven months old and suffered from a “very severe diaper rash.” Kranz thought that the child had been “starving,” as if “he didn't know when his next meal was going to be.” After Kranz and Danet received custody, Bhan “pretty much abandoned” the child by moving to Wisconsin and not visiting him for six months. She came down to visit the child “on average ... two [weekends] a year” even though her visitation schedule allowed monthly visits. In addition, Bhan would occasionally bring with her “different men” whom the child did not know, and she never brought “the same person twice.”
Kranz explained that Bhan had initially thought that the child's father was Joseph Alaniz, who was her boyfriend at the time she lost custody of the child. However, a paternity test revealed the father to be George Hogeland, with whom Bhan lived for five months before she moved to Houston. About four months after losing custody of the child, Bhan was arrested for “disturbance of the peace” after fighting with Alaniz in a Family Dollar store parking lot. Shortly thereafter, Bhan, pregnant with her second child, who was Alaniz's son, moved to Wisconsin. After she had given birth to Alaniz's son, Alaniz “beat the crap out of her in the hospital.” At the time of trial, Alaniz was incarcerated and scheduled to be released in October 2011.
Kranz noted that in late 2006, Bhan told him that if she were to take a drug test, “it would turn out dirty.” Bhan was then ordered by CPS to take a drug test within 24 hours, but she did not comply. She had also informed Kranz that Alaniz had a drug problem.
Kranz further testified that in March 2008, Bhan came to Houston for a weekend visit with the child. After visiting on a Saturday, Bhan called on Sunday morning, explaining that she was not feeling well and would meet him and the child at the Houston Children's Museum at noon, an hour later than previously scheduled. She did not arrive at the museum until 2:20 p.m., and she “very sneakily walk[ed] past the admission where you pay.”
Kranz noted that in 2008, Bhan brought her younger son and a man, “Michael,” on her visit to the child. Afterwards, Bhan failed to call the child for three weeks because they had “decided to go to New Orleans,” where Michael let “some girl ... borrow their truck.” Bhan told Kranz that “the truck [had] disappeared, so [Bhan, her younger son, and Michael] had to take [a] bus back to Wisconsin,” leaving Bhan without a telephone. In watching Bhan interact with her other son, Kranz noted that “there doesn't appear to be respect for her,” and the child “screams at her” and “slaps” people.
Danet testified that during Bhan's visits, the child would “get[ ] very scared and [cry] at night,” which he described as “very typical after pretty much every visit that he has when [Bhan] comes into town.” Although Kranz and Danet encouraged Bhan to call the child and scheduled regular telephone calls, sometimes they “would come home for the phone call and then she wouldn't call at all.” In the six months prior to trial, the child would complain that he did not want to talk with Bhan. However, Danet explained that if he and Kranz were to be appointed managing conservators, they would still encourage the child to remain in contact with Bhan.
Linda McDonald, a co-worker and family friend of Kranz and Danet, testified that in August 2008, she supervised one of Bhan's visits. When Bhan “wanted to make a special celebration” for the child's birthday, they visited her at a local hotel where Bhan was staying. Bhan brought her younger son and a “friend that was introduced as Dennis,” who had “very little interaction” with the child. The amount of time that Bhan spent with the child was “very limited.”
Rebecca Weiser, a co-worker and friend of Kranz, testified that in August 2009, she supervised a visit at the hotel in which Bhan was staying. She noted that while the child was in the hotel pool, he “went under three times,” and Weiser had to “pull[ ] him up out of the water” each time. This caused her to be “concern[ed] for [the child's] safety.” On cross-examination, Weiser admitted that she did not move to terminate the visitation or contact CPS after the incident and that Kranz was supervising the child as well.
Bhan testified that when she, with her mother, moved to Houston in December 2004, she was unaware that she was already pregnant with the child. Shortly after arriving in Houston, she met Alaniz and, despite his abusive tendencies, she later moved into a house with him in mid–2005. She noted that Alaniz would hide her driver's license, delete her telephone numbers, and attempt to control her. In December 2005, police officers were dispatched to their home to investigate alleged domestic violence, and, by March 2006, Bhan was “just waiting for an opportunity to get out” and move away from Alaniz. She explained that she should have left the relationship sooner, but she was “really screwed up” at the time and “dismissed a lot of [Alaniz's] behavior” because she “thought it was important to have a family unit.”
On the morning of March 31, 2006, Bhan planned to escape from Alaniz's abuse and take her child with her. The child had been diagnosed with “thrush,” a yeast infection, which, Bhan explained, accounted for his diaper rash. To treat the thrush, she packed two antibiotics prescribed by the child's pediatrician. Because Alaniz had hidden her driver's license, Bhan had to “go through half the house” to find it and left the house “messy.” She then took the child with her to a bus stop to take a bus to her mother's house in Wisconsin while Alaniz was away. However, Alaniz found Bhan at the bus stop, confronted her, and accused her of being a “drug user.” He then “[took] off on a bicycle with” the child. Bhan called for emergency assistance, and a police officer drove her back to the house in a patrol car. Alaniz and the child were already at the house, and the police officer, after questioning Bhan and Alaniz, took the child away in his patrol car. Bhan explained that because the officer had taken the child away, she did not have time to feed him or apply his thrush medication. Bhan was quite upset and spent the weekend in a hotel room. She then attended a court hearing the following Monday, and the court ordered her to submit to a narcotics test, which came back positive for cocaine. She submitted an affidavit in which she named Alaniz as the child's father, which she believed to be true at the time. The child was not returned to Bhan at the hearing.
After the hearing, Bhan moved back to Wisconsin to join her mother and notified CPS that she had moved. In June 2006, CPS informed her that it would seek “unrelated adoption” for the child. Bhan then returned to Houston for a second hearing, and CPS submitted to her a Family Service Plan (“FSP”). Bhan understood that she could regain custody of the child if she “not just completed [the FSP] but did ... very well.” Later, in the summer of 2006, Bhan stayed in Houston with Alaniz. She attended...
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