In Interest of A.R., No. 05-06-00589-CV (Tex. App. 8/15/2007)
| Decision Date | 15 August 2007 |
| Docket Number | No. 05-06-00589-CV.,05-06-00589-CV. |
| Parties | IN THE INTEREST OF A.R., a Child. |
| Court | Texas Court of Appeals |
On Appeal from the 301st District Court, Dallas County, Texas, Trial Court Cause No. 03-18320-T.
Affirm.
Before Justices WRIGHT, RICHTER, and SMITH1.
This appeal arises out of a post-divorce modification action in which a jury awarded custody of A.R., a minor, to appellee Jamie Rosenthal, the father. Appellant Janay Rosenthal, the mother, appeals the trial court's final award of custody, possession, and access, and a separate order of contempt.2 In seven issues, mother asserts the trial court abused its discretion by: (1) conditioning supervised visitation on the posting of a $50,000 bond; (2) awarding attorney's fees in the nature of child support; (3) granting counsel's motion to withdraw and denying mother's motion for continuance; (4) not conducting a hearing on mother's motion to recuse; (5) failing to take judicial notice of an action pending in another court; (6) failing to consider the best interest of the child; and (7) omitting instructions from the jury charge. Finding no reversible error, we affirm the judgment of the trial court.
Mother and father were divorced on June 15, 2004, when their child, A.R., was four years old. The divorce decree awarded mother and father joint managing conservatorship and mother possessory conservatorship.
Mother wanted the child to be a model. On several occasions during father's court-ordered visitation period, mother denied the father access to A.R.. On one such occasion, mother took the child to New York for modeling-related activities. As a result, father moved that mother be held in contempt. On October 28, 2004, mother was served with an amended motion for contempt. A November 29, 2004 docket entry reflects that mother was held in contempt for failing to produce the child in accordance with the divorce decree on three occasions. The next day, mother made a videotape of the child in which she has the child describe inappropriate behavior allegedly engaged in by father.
On January 5, 2005, mother took the child to the Child Advocacy Center for professional investigation of the child's statements concerning father's inappropriate behavior. The child was interviewed and made no outcry. On January 6, 2005, mother repeated the child's allegation in a motion to modify father's possession. The court ordered a psychological evaluation of the parties, the appointment of a counselor for the child, and the appointment of an amicus attorney3 to protect the best interest of the child. The court further ordered that father's possession of the child be supervised until the psychological investigation could be completed.
During the time father had supervised possession, mother continued to make allegations of sexual abuse. The statements allegedly made by the child also changed. Initially, the alleged conduct involved what has been described as "fanny flashing." As the case continued, mother claimed the child made other statements concerning sexually inappropriate behavior, including a statement about inappropriately touching the father. Despite the fact that father had not been alone with the child, mother took the child to three different physicians for a vaginal exam, alleging to each that father had abused the child. None of the physicians found any reason to believe sexual abuse had occurred. After father learned about the child's visits to the physicians, he expressed concern that the child was being abused by someone and contacted CPS.
Between January 5, 2005, and January 11, 2006, mother retained three attorneys who appeared in succession as mother's counsel of record. Mother also retained Richard Ducote, a non-resident attorney affiliated with the group "Justice for Children." Mother retained Ducote to consult with her on legal issues involving sexual abuse and family court procedures. Mother borrowed money from her parents to pay Ducote a $50,000 flat fee. Ducote initially informed the court that his associate would appear as co-counsel with mother's second counsel of record. He then requested mother's third counsel of record sponsor his admission pro hoc vice, but she declined. After mother's fourth counsel appeared, he sponsored Ducote's requested admission. At the hearing on the motion for Ducote's admission pro hoc vice, the court heard testimony about the number of states that had refused to admit Ducote pro hoc vice, as well as the state and federal courts where his admission had been granted and subsequently withdrawn. There was also testimony about the number of times Ducote had been sanctioned in state and federal courts across the country, and his filing bankruptcy to avoid payment of sanctions. Ducote was questioned about his involvement in another case involving a mother's allegations of abuse where the child was abducted by the mother. Ducote denied participating in the abduction. The trial court denied Ducote's motion for admission.
For several months, mother refused to participate in the court ordered evaluation by the psychologist, but finally relented. In the interim, the court enjoined the parties from discussing the allegations of sexual abuse with the child. Notwithstanding the court's order, mother continued to discuss the allegations with the child, and made several videotapes of these discussions. In several of these video sessions, the child begged mother not to videotape her and indicated she did not want to continue. On each occasion, mother ignored the child's protests and distress, and continued taping. During the course of the case, mother made seven different reports to CPS concerning the same allegation of abuse. The alleged abuse was never substantiated.
In June 2005, father filed an emergency motion to have the child removed from mother and to have her possession supervised. The motion asserted mother was violating court orders not to discuss sexual abuse or the case with the child. The motion further asserted the mother's continued possession of the child would impair the CPS investigation and further damage the child. The next day, father filed a motion for writ of attachment because mother refused to surrender the child. The court ordered the child removed from her mother and placed in the custody of her paternal grandparents pending a hearing.
The issue of mother's possession was set for a hearing in July. When the parties appeared, mother requested that the hearing be rescheduled. The parties and the court agreed to reschedule. But father raised concerns about Ducote's involvement and mother's potential for flight in the interim. The amicus attorney shared these concerns, and informed the court that she had conducted research on Ducote and spoken to attorneys opposing him in cases across the United States. The attorney reported that Ducote has multiple web sites designed to attract women who believe they have been battered or their children sexually abused. In articles posted on these sites, he proclaims the courts don't know what they are doing and are not protecting the children. He encourages his clients to disobey court orders and obstruct justice. The attorney further reported that Ducote had numerous sanctions and judgments against him for frivolous motions that had not been satisfied. The attorney also told the court that there were at least 3-4 cases in which Ducote is the attorney and the children had disappeared. The amicus attorney told the court she believed mother was a flight risk because she paid Ducote $50,000 instead of spending the money on something that might benefit the child. The court abated mother's access to the child until the date of the rescheduled hearing.
In September 2005, father filed an amended motion to suspend mother's possession, to require bond, and for additional temporary orders. The motion expressed concern about whether mother had retained Ducote to assist in the abduction of the child. Significant documentation about Ducote and his judgments, sanctions, and disciplinary actions was attached to the motion. The attachments to the motion also included the affidavit of an investigator retained to investigate a kidnaping in one of the cases in which Ducote was involved. The investigator stated that anytime Ducote is involved in a case, the parent and child are considered a high risk for flight from the court, not just because of Ducote, but because of the groups with which Ducote is involved. The motion further asserted that when Ducote is involved in cases, there is a pattern of false allegations of child abuse, the filing of multiple unfounded pleadings, and suing the attorneys, investigators, therapists, evaluators and ad litems appointed by the courts. The motion described mother's recent behavior as frantic, bizarre, and escalating. Mother was described as going to the child's daycare on a daily basis, removing the child from the other children and activities and sitting alone with her. Mother is also described as taping presents and cards for the child on the door of father's apartment, including a book graphically discussing and demonstrating human reproduction. After a hearing, the court ordered, inter alia, that mother's possession be supervised and contingent on the posting of bond.
When the court-ordered evaluations concluded,the psychologist and the child's counselor recommended that father be awarded possession of the child. Father filed a counter-motion to modify, requesting the child be removed from mother and that he be awarded full custody.
Prior to trial, mother's third attorney moved to withdraw from the case. Mother told the court she did not oppose the motion as long as the trial court would grant her a continuance. The court, having cautioned the parties months earlier there would be no continuance, denied mother's motion. But the court determined counsel had...
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