In re Interest of I.M.M.
| Decision Date | 23 April 2019 |
| Docket Number | NO. 01-17-00415-CV,01-17-00415-CV |
| Parties | IN THE INTEREST OF I.M.M. AND K.R.M., CHILDREN |
| Court | Texas Court of Appeals |
On Appeal from the 310th District Court Harris County, Texas
In this SAPCR suit, Gary, the father of I.M.M. and K.R.M., appeals the trial court's final order that modified conservatorship, visitation, and child support. We affirm.
Gary and Arlene divorced in 2008 in the 310th District Court of Harris County. Both are attorneys. The Agreed Final Decree of Divorce was signed by the Honorable Lisa Millard, presiding judge of the 310th Judicial District Court. Gary and Arlene were appointed joint managing conservators of their two daughters, I.M.M. and K.R.M., and Gary was given the exclusive right to designate the children's residence and the sole right to make decisions concerning the children's education. Arlene, who was temporarily leaving Texas to attend a Masters program, was ordered to pay Gary monthly child support.
An April 7, 2011 order on Gary's and Arlene's respective motions to modify continued their status as joint managing conservators, modified Arlene's request to increase her possession and access (giving Gary and Arlene approximately 50/50 possession time), increased Arlene's child support to Gary, and denied Arlene's request that she be given the exclusive right to designate the children's primary residence.
On January 28, 2016, Gary filed another petition in the 310th Judicial District Court seeking to modify the parent-child relationship. Gary's petition asserted that the 310th District Court had continuing, exclusive jurisdiction of the suit, sought to enjoin Arlene from discussing educational decisions with the children, and requested a judicial determination on whether Arlene was a risk for the international abduction of the children (Arlene is a native of the Phillipines).
Arlene filed a counter-petition seeking, among other things, the joint right to make educational decisions, permission to travel with the children internationallyduring her periods of possession, authority to select a counselor or therapist for the children, and a decrease in child support.
On July 14, 2016, just a few days before Gary's summer possession began, Arlene filed an "Emergency Motion for Temporary Restraining Order and Request for Emergency Hearing for Temporary Orders." By this time, Gary had remarried, and his wife had children from a previous relationship, including her adult son D.S. In her affidavit accompanying the emergency motion, Arlene stated that her and Gary's eldest daughter I.M.M. had recently disclosed on her fourteenth birthday at a church meeting that she had been secretly "sleeping" with D.S., her twenty-year-old stepbrother (a member of Gary's household) since the beginning of the 2015 school year.1 According to Arlene's affidavit, I.M.M. said that she and D.S. had been caught by her stepmother one night in April 2016 and that her stepmother informed Gary, who allowed D.S. to remain in the household.
Child Protective Services was contacted, and a caseworker proposed a safety plan that prohibited I.M.M. and K.R.M. from having contact with D.S. According to Arlene's affidavit, I.M.M. told Arlene that her father and stepmother were very upset with her for disclosing her relationship with D.S. Arlene's affidavit expressed her concern for the physical safety and emotional welfare of I.M.M. and K.R.M. while in Gary's possession because of his failure to protect the children byallowing D.S.'s sexual abuse of I.M.M. to take place and by knowingly allowing D.S. to remain in the household after learning of the sexual abuse. Arlene also expressed concern for I.M.M.'s substantial risk of mental harm from the verbal and mental abuse from her father and stepmother as a result of I.M.M.'s disclosure.
Arlene's emergency motion requested the removal of the children from Gary's possession until the completion of the CPS investigation or until a hearing could be held, the denial of Gary's access to the children or only supervised visitation, the preparation of a child-custody evaluation, and a psychological evaluation of the children.2 Arlene also sought the appointment of an amicus attorney.
An associate judge heard Arlene's emergency motion with counsel for Arlene and Gary present, signed her proposed temporary restraining order, and appointed Amy Lacy as amicus attorney. Gary then filed a motion to dissolve the TRO, and the associate judge denied it after a hearing.
In August 2016, the associate judge held an evidentiary hearing over two days on Arlene's request for temporary orders. Evidence included I.M.M.'shandwritten journal that stated in part: "So night after night I would sleep in his room or he would sleep in mine and each time one of us would escape by morning." After the hearing and after denying Gary's objection to an interview of I.M.M., the associate judge interviewed I.M.M. in chambers with the amicus attorney present.3 Thereafter, the associate judge made temporary orders that, among other things, restricted Gary's possession of and access to the children, eliminated overnight visits, and enjoined the parties from allowing the children to have any contact with D.S. The temporary orders also gave Arlene the exclusive right to designate the children's residence, terminated Arlene's child-support obligation, and ordered that I.M.M. undergo counseling.
Gary then requested a de novo hearing on the temporary orders, and it was held over four days in October 2016. The trial court appointed Arlene as temporary sole managing conservator and gave her the exclusive right to designate the children's residence, and Gary, as temporary possessory managing conservator, was given supervised access and possession.
On October 26, 2016, the case was set for trial for January 18, 2017. Arlene, her attorney, and Gary's attorney appeared for trial, but Gary did not appear; his attorney informed the trial court that Gary had left for Russia the day before on a business trip. The trial court denied Gary's oral motions for continuance and for recusal, and a bench trial took place with Arlene as the only fact witness.
Arlene testified that Gary presented a danger to the children because he failed to acknowledge that his adult stepson D.S. had been "sleeping" with I.M.M. and that Gary had failed to take reasonable steps to protect I.M.M. from D.S. Arlene stated that I.M.M. was attending counseling and was doing well in school; I.M.M. had been "focused, stable, and happy" since the trial court issued its temporary orders. Arlene testified that the children were now ages fourteen and twelve, that D.S. was still residing with Gary, and that neither of them should have any contact with D.S. She said that the alleged sexual conduct between I.M.M. and D.S. that had occurred for many months was a material and substantial change incircumstances4 and that she believed that making the temporary orders final was in the best interest of both children.
Under questioning by the amicus attorney, Arlene reiterated that Gary had failed to acknowledge that there was an inappropriate relationship between I.M.M. and D.S. She stated that, since the temporary orders hearing in October, the children's home life had been "pretty serene" and that the children were stable and focused on school. Arlene believed that visitation between the children and Gary should be supervised through the SAFE program.
Weeks later the trial court signed a final order with a finding that there had been a material and substantial change in circumstances since the last order and that modification was in the children's best interest. The final order found that awarding Gary a standard possession order was not in the children's best interest, provided for only supervised visitation by Gary, and ordered him to pay $1,600.00 in monthly child support. On Gary's request, the trial court issued findings of fact and conclusions of law, and this appeal followed. Gary and Arlene had counsel in the trial court, but on appeal both are appearing pro se.
Asserting twelve issues, Gary argues that this is a "civil rights appeal" raising constitutional issues pertaining to his parental rights. His issues are (1) thetrial court lacked jurisdiction; (2) the trial court erred in not ordering arbitration; (3) the trial court erred in proceeding to trial with a pending motion for recusal; (4) the trial court violated due process in denying a hearing on Gary's constitutional challenges; (5) the trial court violated the Open Courts provision in denying Gary's constitutional claims and a hearing on Gary's constitutional challenges; (6) the trial court erred in acting with "unbridled discretion;" (7) the trial court acted without authority in infringing on Gary's and his children's constitutional rights; (8) the trial court erred in appointing an amicus attorney; (9) the trial court erred in violating Gary's and his children's free exercise of religion; (10) the trial court erred in awarding Arlene child support; (11) the trial court erred in restricting Gary's First Amendment rights; and (12) the trial court erred in conducting trial during a flooding event that prevented his attorney from having his trial evidence. We will address these issues by subject matter.
Jurisdiction. In his first issue, Gary contends that the trial court lacked subject-matter jurisdiction. On January 18, 2017, the day of the final trial, Gary filed a multifarious motion asserting, in part, that the trial court lacked "constitutional jurisdiction" because Arlene was seeking relief that violated Gary's many alleged constitutional rights. Before trial started, Gary's attorney informed the trial court that a "plea to the jurisdiction" had just been filed within the lasthour, and the trial judge commented that she had "no notice" of it. Under this circumstance, we reject Gary's...
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