In re B.G.D.

• Decision Date: 25 August 2011
• Docket Number: No. 02–09–00402–CV.,02–09–00402–CV.
• Citation: 351 S.W.3d 131
• Parties: In the Interest of B.G.D., A.J.D., and J.B.D., Minor Children.
• Court: Texas Court of Appeals

351 S.W.3d 131

In the Interest of B.G.D., A.J.D., and J.B.D., Minor Children.

No. 02–09–00402–CV.

Court of Appeals of Texas, Fort Worth.

Aug. 25, 2011.

Griffith Jay & Michel and Thomas M. Michel, Fort Worth, for Appellant.

McCurley Orsinger McCurley Nelson & Downing LLP and Brad M. Lamorgese, Stephen M. Orsinger, Gene LePoski, R. Scott Downing and Richard R. Orsinger, Dallas, for Appellee.

PANEL: GARDNER, WALKER, and McCOY, JJ.

OPINION

ANNE GARDNER, Justice.

I. Introduction

Appellant Ricky Derzapf (Ricky) appeals the order granting Connie Johnson's (Connie) petition for grandparent visitation with Ricky's children. In seven issues, Ricky contends that the trial court abused its discretion by awarding visitation to Connie because Connie does not have standing, the trial court's judgment violates the law of the case, insufficient evidence supports the judgment, and the court-appointed expert's testimony should have been excluded. Ricky also seeks remand for reconsideration of his attorney's fees. We reverse the trial court's judgment and remand the case for consideration of Ricky's attorney's fees.

II. Background

A. General Background and Connie's Original Suit for Custody

Ricky and Jennifer Derzapf were married in the mid–1990s and had two children: A.J.D., born in 1996; and J.B.D., born in 2000. B.G.D., born to Jennifer in 1991, is not Ricky's biological son, but Ricky adopted B.G.D. after he married Jennifer.¹ Jennifer was diagnosed with leukemia while pregnant with J.B.D. and passed away on June 3, 2001.

Connie is Jennifer's mother and B.G.D., A.J.D., and J.B.D.'s grandmother. For several months immediately following Jennifer's death, Connie and her husband, Randy Johnson, served as the children's primary caregivers. Ricky and the Johnsons initially worked cooperatively on the children's behalf, but tension between Ricky and the Johnsons increased once Ricky began reasserting himself as the children's primary caregiver. The Johnsons perceived Ricky as emotionally distant, and Ricky believed Connie was directly undermining his influence and authority over the children and assuming the role of mother instead of grandmother.

On May 6, 2003, Connie and Randy filed an original suit affecting the parent-child relationship (SAPCR) seeking custody of the children and requesting that they be appointed sole managing conservators, and they obtained an ex parte temporary restraining order preventing Ricky from having possession of the children. Attached to the Johnsons' original petition were affidavits by Connie, Randy, and Connie's three sons. The Johnsons alleged in their petition and affidavits that Ricky endangered the children (particularly B.G.D.) and significantly impaired the children's physical health and emotional development. The affidavits also contained many critical assessments of Ricky's fitness as a parent and husband and included allegations of physical and verbal abuse. For example, Connie stated in her affidavit that Jennifer's stress from living with Ricky caused her immune system to “crash,” ending her sixteen-month battle with leukemia. After a hearing, the trial court dissolved the temporary restraining order, returned the children to Ricky's conservatorship, and dismissed the case without prejudice. Ricky then cut the children off from any contact with the Johnsons.

B. 2005 Temporary Grandparent Visitation Order

Connie and Randy filed this lawsuit, a petition for grandparent access, on March 10, 2004. See Tex. Fam.Code Ann. § 153.433 (West Supp. 2010). In October 2005, the trial court conducted an evidentiary hearing on the Johnsons' request for a temporary order for grandparent visitation. Dr. Mark R. Otis, the court-appointed psychologist, testified at the temporary orders hearing that Ricky's decision to cut off the Johnsons' access to the children was justified under the circumstances and that Ricky was understandably devastated, hurt, angry, and offended by the Johnsons' allegations. Indeed, Dr. Otis wrote in his 2005 report that “Connie contributed significantly more to the atmosphere of mistrust and hurt than Ricky or Randy.”

Dr. Otis also observed in his 2005 report that, in the months following the original lawsuit and while the Johnsons did not have access to the children, Ricky had taken the children to a counselor; that B.G.D. and A.J.D. were prescribed anti-depressant medication; that the children's pediatrician concurred with Ricky's conclusion that further contact with the Johnsons would be harmful to the children's emotional well-being; that the children showed “significant improvement” in their “adjustment and personal well-being”; that B.G.D. and A.J.D. were taken off the anti-depressants; that the children were released from counseling; and that “collateral sources” had confirmed the children's improvement.

Despite the statements in his report, Dr. Otis also testified at the temporary orders hearing that the children were “clearly distraught” about losing their relationship with the Johnsons; that it makes A.J.D. sad to think about the Johnsons; that A.J.D. “potentially might have some difficulties down the line”; that A.J.D. and B.G.D. talk about the Johnsons “with a lingering kind of sadness, a yearning”; and that cutting the children off from the Johnsons “would not be healthy,” would be harmful to their long-term psychological development, and could cause them to be “emotionally damaged.” But Dr. Otis also testified that the children's sadness had “not manifested as depression or behavioral problems or acting out” and that “sadness and yearning doesn't rise to a level of significant emotional impairment.” Dr. Otis recommended that the children's visitation with the Johnsons begin in stages, first with Randy, then with the children's uncles, and later with Connie after she and her family attended counseling. After the hearing, the trial court signed an order granting the Johnsons visitation on the first Saturday of each month.

The children had visitations with the Johnsons for the next sixteen months. Ricky acknowledged that the visits went well. His only complaints were that the Johnsons' gifts were a “little excessive” and that the Johnsons had allowed B.G.D. to take his girlfriend to the lake with them, but he admitted that the Johnsons were not aware that B.G.D. had been grounded at the time from seeing his girlfriend.

C. Ricky's Petition for Writ of Mandamus

Ricky sought mandamus relief after the trial court entered the temporary order granting grandparent visitation with the children. Although this court denied Ricky's petition, the supreme court granted it. See In re Derzapf, 219 S.W.3d 327, 331 (Tex.2007) (orig. proceeding). The supreme court held that Randy did not have standing as a step-grandparent to seek grandparent access and that Connie had not met her statutory burden of proving that the children's physical health or emotional well-being would be significantly impaired in the absence of visitation with her. Id. at 332–33, 333–34. After the supreme court's decision in March 2007, Ricky again denied the Johnsons any access to or visitation with the children outside of five meals and the children's extracurricular activities, which the Johnsons only learned of by communicating with B.G.D.

D. Trial on the Merits

The case proceeded in the trial court after the supreme court's decision. For his part, Dr. Otis conducted a separate telephone interview with Ricky and Connie and two interviews with the children. He also conducted what he termed “collateral interviews” with Randy, Dr. Connell, Barbara Lyne (mother of one of B.G.D.'s friends), Sherry Cantu (friend of the Johnson family), and Sherri Booker (friend of Ricky and the children). Dr. Otis then issued an updated report dated September 8, 2008. Final trial on the merits before the court began on April 6, 2009, and the trial court heard testimony from seven fact witnesses and two expert witnesses.²

Ricky testified that his attitude toward Connie had not changed since 2005, that he was not bitter toward Connie, and that he was concerned that her past alienating behavior would continue in the future. He also testified that Connie's affidavit in support of the 2003 SAPCR suit (filed by Connie and Randy for sole custody of the children) was very destructive and caused a lot of his concern and mistrust.

Ricky also testified about the children's demeanor and improvement in 2003 and 2004 when they did not have contact with the Johnsons. The children spent almost a month in Houston with Ricky's sister-in-law and later started counseling, and B.G.D. and A.J.D. were initially prescribed anti-depressants. Ricky testified that he did not notice any problems with the children between 2003 when they stopped seeing the Johnsons and 2005 when the court-ordered visitations began and that the children were “very good, very well stabilized.” He said that the children had very positive demeanors and that he did not observe the kids mourning or grieving.

Ricky testified that he and the children moved from Wichita Falls to Burkburnett in early 2007 because he could no longer afford the children's private school and because he had good friends in Burkburnett who could help him with the children. He said A.J.D. and J.B.D. play sports all year, that J.B.D. had been involved in dancing and singing activities, and that he had not observed any behavior in either child that caused him concern about their emotional states. Ricky testified that he had discussed the children's mother with them almost weekly; that he had talked with them regularly about what they were doing with school, sports, and their friends; and that he had shown them physical affection. He testified that J.B.D. was doing well in school and generally makes friends in any social situation. He also testified that A.J.D. is typically slower to make friends but that A.J.D. had surprisingly made friends in Burkburnett almost immediately, and Ricky denied...