In re J.H.
| Decision Date | 19 January 2023 |
| Docket Number | 02-22-00457-CV |
| Parties | In re J.H., Relator |
| Court | Texas Court of Appeals |
Before Sudderth, C.J.; Kerr and Wallach, JJ.
Relator J.H. (Father) seeks mandamus relief from interlocutory orders entered by the trial court after Real Party in Interest N.B (Mother) filed a petition to modify in their suit affecting the parent-child relationship (SAPCR).[1] We deny Father's petition in part and conditionally grant it in part.
Father and Mother were finally divorced on April 22, 2020.[2] Father and Mother were appointed joint managing conservators of their three minor children (collectively, the Children), but Mother had the exclusive right to designate the Children's primary residence (within certain specified counties). By prior agreement of the parties, Father's second period of extended summer possession for 2022 was to begin July 22, 2022. That day, Father drove to their agreed-upon pick-up/drop-off location in Wichita Falls to pick up the Children, but Mother did not come to the location or surrender possession of the Children to Father. Instead, she texted him that the Children would "not be coming" with him that day and would remain in her possession "until further notice."
Father filed a petition for a writ of habeas corpus commanding that the Children be brought before the court and surrendered to Father. On August 5, 2022, Mother filed a petition to modify the parent-child relationship. She attached to her petition affidavits from herself and her current husband alleging that, beginning on July 12, 2022, the Children had made statements alleging that Father made them take showers with him and that they did not like it or want to do that. According to Mother, all three Children also said that Father "goes skinny dipping with them" in his backyard pool. Mother and her husband arranged for the two older Children to see a counselor, Arthur J. Madden, who was previously unknown to Mother but had been seeing her current husband's children for many years. The trial court issued a temporary restraining order on August 5 and set a hearing for August 16, 2022. Meanwhile, Mother amended her petition, and Father moved to enforce the standard possession order from the Divorce Decree.
The trial court held an evidentiary hearing on August 24, 2022. Father, Mother, and Madden all testified at the hearing, as did a CPS investigator and one of the Children's teachers. Over Father's objections, Mother was allowed to introduce hearsay statements of the Children into evidence. On August 30, 2022, the trial court issued temporary orders appointing Mother as temporary sole managing conservator and Father as temporary possessory conservator. The trial court also restricted Father's contact with the Children to supervised visitation for two hours a week in person under the supervision of Charlotte Marsh, a licensed marriage and family therapist, at her office in Wichita Falls. The trial court ordered that this supervised visitation schedule continue until Arthur Madden submits a report to the trial court and to all counsel indicating that further contact between Father and the Children is in the Children's best interest. The Children were ordered to continue receiving psychological treatment through Madden, and Madden was ordered to submit a report to the trial court-no later than six months after the date of the order-stating whether further contact between Father and the Children would be in the Children's best interest. The trial court also signed orders denying Father's petition for habeas corpus and denying his motion for enforcement.[3] It is from these orders that Father now seeks mandamus relief in this court.[4]
Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show both that the trial court clearly abused its discretion and that the party has no adequate remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig. proceeding).
A trial court abuses its discretion when a decision is arbitrary, unreasonable, and without reference to guiding principles. Id.; see Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). We defer to a trial court's factual determinations that have evidentiary support, but we review the trial court's legal determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). An error of law or an erroneous application of the law to the facts is always an abuse of discretion. See In re Geomet Recycling LLC, 578 S.W.3d 82, 91- 92 (Tex. 2019) (orig. proceeding).
An appellate remedy's adequacy has no specific definition; "the term is 'a proxy for the careful balance of jurisprudential considerations'" that implicate both public and private interests, and "its meaning 'depends heavily on the circumstances presented.'" Allstate Indem. Co., 622 S.W.3d at 883 (); In re Ford Motor Co., 165 S.W.3d 315, 317 (Tex. 2005) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 136); see also In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding) ("Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review."). An appellate remedy is adequate when any benefits to mandamus review are outweighed by the detriments. Prudential, 148 S.W.3d at 136.
In his first issue, Father argues that the trial court abused its discretion by admitting in evidence prejudicial hearsay from the Children through Madden's notes and testimony. In his second issue, Father argues that the trial court abused its discretion by admitting in evidence prejudicial hearsay contained in a child's school activity and admitted through the testimony of the child's teacher.
"Hearsay" means a statement that (1) the declarant does not make while testifying at the current trial or hearing and (2) a party offers in evidence to prove the truth of the matter asserted in the statement. Tex. R. Evid. 801(d). Hearsay is not admissible unless a statute or other rules prescribed under statutory authority provide otherwise. Tex. R. Evid. 802. Once the opponent of hearsay evidence makes the proper objection, it becomes the proponent's burden to establish an applicable exception that would make the evidence admissible despite its hearsay character. Taylor v. State, 268 S.W.3d 571, 578-79 (Tex. Crim. App. 2008).
We overrule Father's first issue because Madden's notes were admissible under the business-records exception to the rule against hearsay. See Tex. R. Evid. 803(6). Madden testified that the notes were treatment records made at or near the time of the events recorded by, or from information transmitted by, a person with knowledge acting in the regular course of business and that it was the regular practice of his business to make records like these. See Tex. R. Evid. 803(6)(A), (B), (C), (D). Additionally, Father failed to demonstrate that the source of the information or the method or circumstances of the records' preparation indicated a lack of trustworthiness. See Tex. R. Evid. 803(6)(E). To the extent that the records (and Madden's testimony) contained "hearsay within hearsay," as Father complains, the trial court was within its discretion to find that these statements were made for-and were reasonably pertinent to-medical diagnosis or treatment, described the declarants' past or present symptoms and their inception or general causes, and were therefore admissible under another exception to the rule against hearsay.[5] See Tex. R. Evid. 803(4). We have said that, in cases involving allegations of child sex abuse, "the injury is often as much psychological as it is physical in nature." Ware v. State, 62 S.W.3d 344, 351 (Tex. App.-Fort Worth 2001, pet. ref'd). We have also said that the Rule 803(4) exception is not limited to statements by patients, that the person making the statement must have an interest in proper diagnosis or treatment, and that parents normally possess this interest in the well-being of their children. Id. Therefore, even if the child declarants were relaying statements they had overheard from Mother, Mother's statements would still be admissible if made for medical diagnosis or treatment. See Tex. R. Evid. 803(4); Ware, 62 S.W.3d at 351.
Father contends that there is no evidence showing that the Children understood, or even that someone ever attempted to explain that being truthful to Madden was necessary for their counseling to be effective and that "the evidence unequivocally demonstrates the inapplicability of this hearsay exception given that the Children did not understand or discuss the importance of telling the truth for their 'treatment' with Madden to be successful." There is no requirement that a witness expressly state that the hearsay declarant recognized the need to be truthful in his statements for the medical treatment exception to apply. Beheler v. State, 3 S.W.3d 182, 188 (Tex. App.-Fort Worth 1999, pet. ref'd). "It is sufficient that the evidence reflects that the statements were made for the purpose of medical diagnosis and treatment." Id. at 189. Courts may infer from the record that the out-of-court declarant was aware that the statements were made for purposes of medical diagnosis or treatment and that proper diagnosis or treatment depended upon the veracity of such statements. See Taylor v. State, 263 S.W.3d...
To continue reading
Request your trial