Mauldin v. Clements

• Decision Date: 04 February 2014
• Docket Number: No. 01–12–00016–CV.,01–12–00016–CV.
• Citation: 428 S.W.3d 247
• Parties: Marca E. MAULDIN, Appellant v. Jerry CLEMENTS and Janet Clements, Appellees.
• Court: Texas Court of Appeals

428 S.W.3d 247

Marca E. MAULDIN, Appellant

v.Jerry CLEMENTS and Janet Clements, Appellees.

No. 01–12–00016–CV.

Court of Appeals of Texas,

Houston (1st Dist.).

Feb. 4, 2014.

Linda Stewart, Baytown, TX, for Appellant.

Judith Ann Ritts, Houston, TX, for Appellees.

Panel consists of Justices KEYES, SHARP, and HUDDLE.

OPINION

EVELYN V. KEYES, Justice.

In this post-divorce modification suit affecting the parent-child relationship, appellant, Marca Mauldin, appeals the trial court's final order awarding the paternal grandparents, appellees Jerry and Janet Clements, sole managing conservatorship of her two children, C.T.M. and H.T.M. In five issues, Marca argues that: (1) the trial court abused its discretion in awarding Janet and Jerry temporary possession of or access to the children before they had any pleadings on file; (2) Janet and Jerry lacked standing to intervene in the suit; (3) the evidence was insufficient to support the trial court's appointment of Janet and Jerry as the children's sole managing conservators; (4) the evidence was legally and factually insufficient to rebut the presumption that appointing a parent as the children's managing conservator was in their best interest; (5) the trial court abused its discretion in ordering that Marca's possession of and access to her children must be supervised; and (6) the trial court erred when it failed to issue written findings of fact and conclusions of law.

We affirm.

Background

Marca and Mark Mauldin were divorced in Burnet County on May 26, 2004. At the time of the divorce, C.T.M. was seven years old and H.T.M. was one-and-a-half years old. Marca and Mark were appointed joint managing conservators. Marca was awarded the right to determine the children's primary residence, and Mark was ordered to pay Marca child support in the amount of $600 per month.

In January 2006, Mark filed a post-divorce petition for modification in a suit affecting the parent-child relationship in Burnet County. Mark asked the court to appoint him the children's sole managing conservator and asked the court “to determine whether there is a risk of international abduction of the children by [Marca] and to take such measures as are necessary to protect the children.” Mark further alleged that Marca “has a history or pattern of child neglect and abuse directed against” C.T.M. and H.T.M. and requested that the court deny Marca access to the children, or alternatively, that the court order that Marca's periods of visitation be supervised. Mark subsequently moved to enforce his rights to possession of and access to the children, alleging that Marca had denied him access to the children on three occasions.

Marca filed a counter-petition for modification on May 23, 2006. Marca asked to be named the children's sole managing conservator and requested that the trial court deny Mark access to the children or, alternatively, that the court limit his visitation and order him “to refrain from the consumption of alcohol or a controlled substance” and “to attend and complete a battering intervention and prevention program.” Marca alleged that Mark “has a history or pattern of child neglect and physical abuse directed against the children the subject of this suit” and that Mark “has denied [Marca] possession of or access to the children the subject of this suit on two or more occasions.”

On August 25, 2006, the Burnet County court issued temporary orders, ordering that Marca and Mark both have possession of the children as previously agreed in the divorce decree or, in the absence of an agreement, pursuant to a Standard Possession Order. The Burnet County court extended its earlier order requiring that C.T.M. continue psychiatric treatment and that Marca and Mark agree to follow the required psychiatric care and medication prescribed by C.T.M.'s psychiatrist. The Burnet County court ordered that the parties appoint a psychologist to prepare a psychological evaluation to address, for purposes of future custody arrangements, “whether either parent poses a danger to the children's psychological or physical well-being or has attempted to alienate the other parent from the children, which parent should have primary custody of the children, and whether either party shall have supervised visitation or shall be denied visitation” with H.T.M. and C.T.M. Finally, the Burnet County court found that “the parent conservators sharing or having independent rights to make medical decisions for the children is not in the children's best interests” and ordered that Marca have “the exclusive right to make medical decisions for the children the subject of this suit, except for psychiatric treatment of [C.T.M.] as referenced in this order above.”

Marca relocated to Harris County, where she moved for a protective order. On November 8, 2006, the Harris County court entered a protective order against Mark. The court found that Mark had committed family violence and ordered that Mark was prohibited from communicating with Marca and the children “in a threatening or harassing manner,” either directly or indirectly, from going near Marca's residence or place of employment, from possessing a firearm, and from following Marca and the children or engaging in any behavior “that is likely to harass, annoy, alarm, abuse, torment, or embarrass” them. However, the court also wrote in the protective order that it “found issues of credibility with some aspects of [Marca's] testimony and affidavit” and that it was “not able to determine whether there is a history or pattern of family violence and issues no finding in that regard.” The Harris County court further ordered that all orders entered by the Burnet County court remained in effect, and it allowed Mark continued visitation with the children.

The case was subsequently transferred to Harris County, where Marca moved for modification of the temporary orders entered by the Burnet County court. Marca alleged that Mark “has pending criminal charges for the possession of a controlled substance”; “has forced [C.T.M. and H.T.M.] to drink alcohol”; “has watched pornography in front of one of the children”; and has “committed family violence.” Marca requested that Mark be denied access to the children or that his periods of visitation be continuously supervised. The parties entered a Rule 11 agreement providing that Mark “shall not exercise visitation with the children ... until this matter is heard by Judge Rynd which is set for temporary orders on Feb. 10, 2009 at 9:00 a.m.”

On February 10, 2009, the trial court ordered a change to the visitation schedule. It also ordered that the parties submit to drug tests, that they not move without written court order, and that the children remain at their current school while the case was pending. On November 23, 2009, Marca moved for enforcement of Mark's child support obligations.

On June 24, 2010, Patricia Bushman, the amicus attorney appointed on behalf of C.T.M. and H.T.M., moved to modify the temporary orders. Bushman alleged that “both Mark Mauldin and Marca Mauldin have caused the children to be in situations which cause them to sustain mental and emotional injuries, resulting in observable and material impairment in their growth, development and psychological functioning.” Bushman requested that “the support and possession and access orders be modified in a manner that is best for the children,” that “the parties submit to a psychological evaluation,” and that “both children be immediately enrolled in counseling with a counselor chosen by the Court.” In a supporting affidavit, Marca stated that the Department of Family and Protective Services (“DFPS”) was conducting an investigation into the welfare of the children.

On July 14, 2010, the trial court held a hearing on Bushman's motion. Bushman stated:

I believe [the boys] are still being continually coached and talked to about these issues [by Marca] and it's damaging to the children. I think it has risen to the level of abuse.

The younger one is being pressured into making allegations against his father that I don't think the younger one thinks they're true. He's just being pressured into doing it....

The older one is making claims out of the blue. It's almost as if he's making them up. The older one calls his father a queer and a fag all the time. If you ask him why, it's because his mom said that he's a queer and a fag because he likes boys. The older one can describe his dad using cocaine although he's never seen it. If you ask him why, it's because his mother has told him how it works.

We talked to her at the temporary orders a year ago about doing this and she said she'd stop, but she hasn't. It's continuing....

Also, Bushman argued that one of the conditions of leaving the children in Marca's custody in the last temporary orders was that the boys attend counseling and that Marca had not been taking the boys to counseling.

Janet Clements, Mark's mother,¹ testified at this hearing in support of Bushman's arguments to the trial court. She testified that up until Bushman filed the motion for temporary orders two weeks previously, the boys had spent the night at her house between one and four nights a week and that even on days when they did not spend the night they visited her house every weekday until approximately eight o'clock at night. Janet testified that she had witnessed Marca criticizing Mark to the boys, telling them that Mark is “a bad person” or that he is “a queer” who “likes little boys.” Janet also observed Marca tell the boys about incidents in which Mark had allegedly done drugs. Janet testified that she had spoken to Marca about these comments, but it did not stop Marca from making them. When asked if she had concerns about the boys staying in Marca's custody, Janet replied: “I have concerns that they're going to continue to learn to lie. They're just better boys when they're away from her. I mean, she's teaching them to lie. She manipulates them. They...