Child support appeal: With or without supersedeas?

Court of Appeals abates appeal and sends case back to the trial court to decide whether to suspend enforcement of child support arrears judgment and whether to require posting of a supersedeas bond or impose other conditions.

Inman v. Bryant, No. (Tex.App. - Austin, May 16, 2008)() (SAPCR appeal, child support enforcement, abatement, suspension of judgment, supersedeas bond) (Before Justices Patterson, Puryear and Henson)
Gerald Wayne Inman v. Sherry Ann Bryant--Appeal from 426th District Court of Bell County

Appeal from 426th District Court of Bell County

M E M O R A N D U M O P I N I O N

The trial court signed an order awarding appellee Sherry Ann Bryan almost $30,000 in child support arrearages from appellant Gerald Wayne Inman. Appellant, who is representing himself pro se, timely filed a notice of appeal and affidavit of indigence on March 14, 2008. Two weeks later, he filed a motion in this Court asking us to suspend the enforcement of the judgment, citing rule 24.2 of the rules of appellate procedure and arguing that he is entitled to suspension of the judgment without the need to post a supersedeas bond. See Tex. R. App. P. 24.2(a)(1) (to suspend judgment for money, bond must equal money award plus interest and costs, but may not exceed lesser of $25 million or 50% of judgment debtor's net worth). Appellee has filed a response asserting that the trial court has sole jurisdiction to determine the sufficiency of supersedeas and whether the bond amount should be reduced.

Appellant has since filed a motion asking for an extension time to pay his filing fees and again asking us to suspend the judgment. In this motion, he explains that the court reporter filed a contest to his affidavit of indigence and that, after a hearing, the court signed an order sustaining the contest and denying appellant's request for a free record. Appellant asserts that he did not receive notice of the contest and hearing on the contest until nearly two weeks after the contest was filed and three days after the trial court signed its order. He filed a motion in the trial court asking for a new hearing on the contest; the record does not reflect whether the trial court has acted on that motion.

We agree with appellee that the trial court is the proper court to determine whether the judgment should be suspended. See Tex. Fam. Code Ann. § 109.002(c) (West 2002) (appeal from final SAPCR order does not stay order unless trial court orders suspension "with or without a supersedeas bond").

We therefore abate the appeal until June 30, 2008, and remand it to the trial court to determine whether the judgment should be suspended and if so, under what conditions.
__________________________________________
David Puryear, Justice
Before Justices Patterson, Puryear and Henson
Abated
Filed: May 16, 2008

SAPCR: Grandparent appointed SMC (sole managing conservator)

Mother's appeal of order awarding custody of child to intervening paternal grandfather fails. Trial court did not err in refusing to strike petition in intervention.

Kenda Kushner v. Stan Kushner, No. (Tex.App.- Austin, Mar. 7, 2008) (Opinion by Justice Pemberton )(grandparent access statute, SAPCR, nonparents, intervention) (Before Justices Patterson, Puryear and Pemberton)
Kenda Kushner v. Stan Kushner--Appeal from 200th District Court of Travis County
Dispostion: Affirmed

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 200TH JUDICIAL DISTRICT
NO. D-1-FM-02-003670, HONORABLE JOHN K. DIETZ, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Kenda Kushner appeals the district court's judgment appointing her ex-husband's father, Stanley Kushner, as sole managing conservator of her and her ex-husband's son, M.J.K. In a single issue, Kenda (1) argues that the district court abused its discretion when it failed to strike Stanley's Petition in Intervention of Grandparent in Suit Affecting the Child-Parent Relationship because Stanley failed to allege sufficient facts to satisfy the requirements to intervene under section 102.004(b) of the Texas Family Code. See Tex. Fam. Code Ann. § 102.004(b) (West Supp. 2007).

We overrule Kenda's issue and affirm the judgment of the district court.

BACKGROUND

Kenda and Phillip Kushner divorced in July 2003. In the final decree of divorce, Kenda was appointed sole managing conservator and Phillip was appointed possessory conservator of the parties' minor child, M.J.K. Phillip filed a petition to modify the parent child relationship in December of 2005. On May 26, 2006, Phillip's father, Stanley Kushner, filed a petition in intervention requesting, among other things, that he be named a joint managing conservator of his grandson, that the child live with him at his residence in Overland Park, Kansas, and that Phillip and Kenda pay him child support. In his petition in intervention, Stanley alleged that "the continued appointment of the child's [m]other as a joint managing conservator would not be in the best interest of the child because the continued appointment of the [m]other would significantly impair the child's physical health or emotional development."

Kenda filed a motion to strike Stanley's petition in intervention on June 19, 2006, complaining that Stanley had not sought leave of the court, had filed his petition only three weeks prior to trial, and had not taken a position adversarial to his son, Phillip. The district court denied the motion to strike and a bench trial was held on July 10, 2006. On July 26, 2006, the district court signed a final order appointing Stanley as sole managing conservator and Phillip and Kenda as possessory conservators of M.J.K.

At Kenda's request, the district court entered findings of fact and conclusions of law. The court's fact findings included the following:

3. Alcoholism

[Kenda] is an alcoholic. [Kenda] is in denial of this fact. On April 1, 2005, [Kenda] overdosed on prescription drugs while intoxicated and while under the influence of marijuana. [Kenda] has stated to the Child Protective Services worker that such incident was an attempt on her part to commit suicide. On May 11, 2005, [Kenda] drove a vehicle with [M.J.K.] while she was intoxicated. On December 5, 2005 [Kenda] became unconscious through intoxication during a time when [M.J.K.] was in her care, and with no other caretakers present. [Kenda] has endangered [M.J.K.] on more than one occasion due to her being intoxicated.
[Stanley] does not abuse alcohol.

4. Use of Illegal Drugs

[Kenda] has used illegal drugs and allowed others to use illegal drugs in the presence of [M.J.K.].
[Stanley] does not use illegal drugs.

5. Relationship Concerns

Since the parties' divorce, [Kenda] has married and divorced a man named David Soliz. In April 2005 [Kenda] obtained a Protective Order against David Soliz that is currently in effect. In her application for such Protective Order, [Kenda] swore under oath that David Soliz was abusive towards her and her son [M.J.K.], the child that is the subject of this lawsuit. [Kenda] currently maintains an ongoing relationship with David Soliz. [Kenda's] relationship with David Soliz has been a violent relationship. David Soliz is a danger to [M.J.K.].
[Stanley] is married to Magdalena Kushner. They have a healthy marital relationship, and are both fully capable of caring for [M.J.K.]. It is in the best interest of [M.J.K.] that he live with [Stanley] and that [Stanley] be named as [M.J.K.]'s Sole Managing Conservator.

6. Child Protective Services

Since the date of the divorce, Child Protective Services has removed the child [M.J.K.] from the home of [Kenda]. Child Protective Services recommended at the time of trial of this cause that [M.J.K.] be taken from the custody of [Kenda] and that [Kenda] be denied access to [M.J.K.], except under supervision. CPS made this recommendation because [Kenda] had endangered [M.J.K.].
It is the recommendation of Child Protective Services that [M.J.K.] live with [Stanley] at his residence in Overland Park, Kansas.

7. Stability of Home Environment

[Kenda] has not maintained a stable home environment for [M.J.K.]. Since the date of divorce, [Kenda] has moved several times and has lived with several different men. [Kenda] has moved several times within the last 6 months.
[Stanley's home] is a safe and stable environment.

8. Financial Concerns

[Kenda] has not maintained steady employment since the divorce between the parties. [Kenda] has relied primarily on child support and the generosity of others for her financial support. Kenda has not been able to, with her own efforts to maintain stable employment, pay her rent, or pay the child support she has been ordered to pay for a child by [a] previous marriage.
[Stanley] is able to personally care for [M.J.K.'s] needs financially.

9. Respect for the Rule of Law

[Kenda] has lied under oath on more than one occasion, both by affidavit and by live testimony. [Kenda] has admitted to lying under oath in order to obtain the Protective Order against David Soliz mentioned above. That Protective Order ordered that David Soliz stay away from [Kenda] and [M.J.K.]. Kenda has violated this Protective Order on more than one occasion by her continued relationship with David Soliz. [Kenda] has violated this Protective Order by allowing David Soliz to be in the presence of [M.J.K.].

DISCUSSION

Kenda's sole argument on appeal is that the district court abused its discretion in failing to strike Stanley's petition in intervention because Stanley's petition did not allege sufficient facts to satisfy the requirements to intervene under section 102.004(b) of the Texas Family Code. The standard of review for determining whether the trial court improperly denied a motion to strike intervention is abuse of discretion. Guaranty Fed. Sav. Bank v. Horseshoe Operating Co., 793 S.W.2d 652, 657 (Tex. 1990); In the Interest of N.L.G., 238 S.W.3d 828, 828 (Tex. App.--Fort Worth 2007, no pet.). To determine whether a trial court abused its discretion, we must decide whether it acted without reference to any guiding rules or principles; in other words, whether the act was arbitrary or unreasonable. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985). Section 102.004(b) of the family code provides that a:
court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.
Tex. Fam. Code Ann. § 102.004(b).

Kenda argues that Stanley's petition is insufficient because he does not allege that the appointment of Phillip as joint managing conservator or sole managing conservator would significantly impair M.J.K.'s physical health or emotional well being. We disagree. Section 102.004(b) of the family code does not require a grandparent to prove that the appointment of either parent as a sole managing conservator would significantly impair the child's physical health or emotional development; rather the statute merely requires satisfactory proof that "the appointment of a parent as sole managing conservator or both parents as joint managing conservators would significantly impair" M.J.K.'s physical health or emotional development. Here, Stanley alleged that "the continued appointment of the child's [m]other as a joint managing conservator would not be in the best interest of the child because the continued appointment of the [m]other would significantly impair the child's physical health or emotional development." (2) Accordingly, we conclude that the district court did not abuse its discretion in denying Kenda's motion to strike Stanley's petition in intervention.

CONCLUSION

We affirm the district court's judgment appointing Stanley Kushner as sole managing conservator, and Phillip and Kenda Kushner as possessory conservators, of the child M.J.K.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Affirmed
Filed: March 7, 2008

1. To avoid confusion with the common surname, we will refer to the parties by their first names.
2. We note that Kenda does not challenge the district court's fact findings, which strongly support these allegations.

SACPR: Order denying enforcement not appealable

Rivas v. Rivas, No. (Tex. App.- Austin, Feb. 15, 2008) (Opinion by Justice Pemberton )(no appeal from order denying SAPCR enforcement petition, DWOJ)(right to make educational decision for child, choice of school) (Before Justices Patterson, Puryear and Pemberton)
Karl T. Rivas v. Julie Hetherly Rivas
Appeal from 22nd District Court of Comal County

FROM THE DISTRICT COURT OF COMAL COUNTY, 22ND JUDICIAL DISTRICT
NO. C2005-0760A, HONORABLE CHARLES A. STEPHENS II, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Karl T. Rivas brings this appeal from an order denying a petition for enforcement of a final order for conservatorship of and possession and access to a child. Karl filed a petition for enforcement against his ex-wife, Julie Hetherly Rivas, (1) alleging that Julie violated provisions of their agreed final decree of divorce by removing their children from their Comal County schools and enrolling them in Lampasas County schools. Finding that "there was no violation of the Agreed Final Decree of Divorce as alleged," the district court entered an order denying Karl's petition for enforcement. Karl attempts to appeal from this order. Julie has filed a motion to dismiss the appeal on grounds that we lack subject matter jurisdiction. Because we conclude that we do not have subject matter jurisdiction, we grant Julie's motion and dismiss this appeal.

Chapter 157 of the family code allows a party to file a motion for enforcement "to enforce a final order for conservatorship, child support, possession of or access to a child, or other provisions of a final order." Tex. Fam. Code Ann. § 157.001(a) (West 2002). Chapter 157 goes on to provide that "[t]he court may enforce by contempt a final order for possession of and access to a child as provided in this chapter." Id. § 157.001(b) (West 2002).

Courts of appeals do not have jurisdiction to review by direct appeal an order finding a party not in contempt. Norman v. Norman, 692 S.W.2d 655 (Tex. 1985) ("[A]n order finding a party not in contempt is not a final, appealable judgment."); Pruett v. Pruett, 754 S.W.2d 802, 803 (Tex. App.--Tyler 1988, no writ). Furthermore, "an order made for the purpose of carrying into effect a prior judgment is not a final judgment and 'cannot be appealed from.'" Wall St. Deli v. Boston Old Colony Ins., 110 S.W.3d 67, 69 (Tex. App.--Eastland 2003, no pet.) (quoting Wagner v. Warnasch, 295 S.W.2d 890, 893 (Tex. 1956)); see also N.H. Ins. Co. v. Tobias, 80 S.W.3d 146, 148 (Tex. App.--Austin 2002, no pet.) (dismissing appeal for want of jurisdiction because order appealed from was neither a final judgment nor an appealable interlocutory judgment).

Because we do not have jurisdiction to review the trial court's order denying Karl's petition for enforcement, we dismiss this appeal for want of jurisdiction.
____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Puryear and Pemberton
Dismissed for Want of Jurisdiction
Filed: February 15, 2008

1. To avoid confusion with the common surname, we will refer to the parties by their first names.

Justice Jan Patterson Dissents in SAPCR case

Concurring and Dissenting Opinion by Justice Patterson (Before Justices Patterson, Puryear and Henson)

Angela M. Blackwell v. Mark M. Humble
Appeal from 20th District Court of Milam County

C O N C U R R I N G A N D D I S S E N T I N G O P I N I O N

Because I would affirm the judgment in all respects, I concur in the majority's opinion with regard to the first four issues and dissent from the remaining portions that reverse and remand this long-suffering appeal to the trial court.

We are to review a trial court's decision on custody, control, possession, and visitation matters
for abuse of discretion, and reverse the trial court's order only if we determine, from reviewing the record as a whole, that the trial court abused its discretion. See In re Jane Doe 2, 19 S.W.3d 278, 281-82 (Tex. 2000); Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.--Houston [1st Dist.] 2001, no pet.). Generally, orders arising from modification suits will not be disturbed unless the complaining party can demonstrate a clear abuse of discretion. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). Such an abuse of discretion occurs when a trial court acts arbitrarily, unreasonably, or without regard to guiding rules or principles. Id. That a trial court may decide a matter within its discretionary authority in a manner different from an appellate court in a similar circumstances does not demonstrate an abuse of discretion. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).

In our review of a modification order under an abuse of discretion standard, legal and factual sufficiency are not independent grounds of error, but are relevant factors in deciding whether the trial court abused its discretion. See Zeifman v. Michels, 212 S.W.3d 582, 588 (Tex. App.--Austin 2006, pet. denied); In re D.S., 76 S.W.3d 512, 516 (Tex. App.--Houston [14th Dist.] 2002, no pet.); Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.--El Paso 2001, no pet.). Because we apply an abuse of discretion standard, the traditional sufficiency standards of review overlap, and appellate courts apply a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475, 476-77 (Tex. App.--Austin 2002, no pet.). Under this hybrid analysis, we engage in a two-pronged inquiry: (1) did the trial court have sufficient information upon which to exercise its discretion; and (2) did the trial court err in its application of discretion? Id. at 477-78; Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.--El Paso 1998, no pet.). The traditional sufficiency review comes into play with regard to the first question; we then proceed to determine whether, based on the evidence, the trial court made a reasonable decision, that is, whether the court's decision was arbitrary or unreasonable. Lindsey, 965 S.W.2d at 592.

As Blackwell argues in her fifth issue regarding access and possession, the trial court's temporary order has been in effect since April 2, 2003, "being modified by the Judgement being appealed herein, dated January 25, 2005, only by changing the name of the person to supervise the visits to a deputy sheriff." With regard to her access to and possession of the children, Blackwell contends that the trial judge "abused his discretion in ordering the restricted possession in the first place and by continuing it in the permanent Judgment" and "by not setting out a program for phasing Appellant back into standard visitation."

In the modification orders dated March 7, 2003, and April 2, 2003, the trial court expressly found and stated in its written orders that the requested modifications were in the best interest of the children. In the 2004 proceedings that resulted in the judgment dated January 25, 2005, the court found that it had continuing, exclusive jurisdiction in the case, found Betty French and Monty Humble to have standing and appointed them co-possessory conservators, and changed the name of the person to supervise Blackwell's visits to a deputy sheriff. Based on Blackwell's "global" attack on the modification order as the majority describes it, the majority finds that (i) Blackwell objected on the ground that the trial court failed to include its iteration of "best interest" in its final judgment; and (ii) she preserved this ground. Blackwell neither objected on this ground, nor is it preserved.

Finding sufficient evidence to support the trial court's decision that "some limitations on Blackwell's possession and access would be in the children's best interests," the majority nevertheless disagrees with their "severity" and "the difficulty Blackwell will face in seeking future modifications that might allow her more contact with her children." Notwithstanding Blackwell's failure to request findings of fact, the majority finds these restrictions seemingly inconsistent with the trial court's decision to maintain Blackwell as a managing conservator and concludes that "we are left to speculate" about what the trial court "believed" the evidence to be. These judgments go to the heart of a trial court's discretion, and we may not substitute our judgments for that of the trial court.

Likewise, I would conclude the trial court did not abuse its discretion in appointing Monty Humble as a possessory conservator. The majority does not find that the trial court erred in granting Monty Humble standing, only that there were "meager facts." Because his testimony showed that he had seen the children regularly during their lives and was uncontroverted, the trial court did not abuse its discretion in allowing his intervention and appointing him a co-possessory conservator. Some evidence of a substantive and probative character exists to support the trial court's decision. In the absence of a statutory mandate, there is no abuse of discretion.

I would conclude that the extensive--albeit stale--record establishes that the trial court had sufficient evidence to support its modification order and that the trial court did not abuse its discretion. Given the standard of review, the trial court's decision was not unreasonable or arbitrary.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Puryear and Henson
Filed: December 14, 2007

SAPCR case: Blackwell v. Humble (Tex.App.- Austin, 2007)

Angela M. Blackwell v. Mark M. Humble, No. (Tex.App.- Austin, Dec. 14, 2007)(Opinion by Justice Puryear ) (SAPCR, MTM, limitation restriction of access, intervention, recuse judge) (Before Justices Patterson, Puryear and Henson)
Appeal from 20th District Court of Milam County
Disposition: Affirmed in part, reversed and remanded in part.

FROM THE DISTRICT COURT OF MILAM COUNTY, 20TH JUDICIAL DISTRICT
NO. 28,167, HONORABLE ED MAGRE, JUDGE PRESIDING

O P I N I O N

Appellant Angela M. Blackwell appeals from the trial court's judgment limiting her access to her children. Blackwell argues that the trial judge should have recused himself sua sponte, that an assigned judge should have ordered the trial judge's recusal, and that the trial court abused its discretion in limiting her access to the children, allowing the children's grandmother and uncle to intervene, and naming them possessory conservators. We reverse the trial court's judgment in part and remand the cause for further proceedings.

Background

In October 2002, the trial court signed a final decree granting a divorce to Blackwell and appellee Mark M. Humble and naming them joint managing conservators of their children, Mt., a son born in June 1996, and Md., a daughter born in November 1999. The children's primary place of residence was with Humble, and Blackwell had visitation rights.

In January 2003, Humble filed a motion for enforcement and a motion to modify, asserting that Blackwell had refused to return the children to Humble's care after a visit and had threatened Humble in front of the children. Humble asked that Blackwell be held in contempt for violating the divorce decree and sought orders barring her from speaking to him and requiring her to arrange for a third-party to drop off and pick up the children. A hearing was held on Humble's motion on February 13. On the morning of the hearing, Humble filed a supplemental petition asking the court to suspend visitation pending a mental health evaluation of Blackwell, alleging that Mt.'s grades had dropped recently, that Mt. seemed stressed, and that Blackwell told Md. to say that Betty French, the children's paternal grandmother and Humble's mother, had "choked her and kicked her."

On March 7, the trial court signed an order requiring third-parties for pick-ups and drop-offs, ordering psychological evaluations of both children, and holding Blackwell in contempt, suspending a thirty-day jail sentence if Blackwell complied with the court's orders, paid $3,000 in attorney's fees, refrained from interfering with the psychological evaluations and any recommended treatment, and refrained from communicating with Humble except through the parties' attorneys.

On March 10, Humble filed an "amended supplemental" petition, describing more troubling behavior by the children following visits with Blackwell. Humble alleged that the children acted wild and uncontrollable after an extended visit with Blackwell and that Mt. was exhibiting behavior similar to Blackwell's older son, who was placed in an in-patient psychiatric facility when he was six years old but returned to normal behavior after he was removed from Blackwell's care. Humble asserted that the children's troubling behavior diminished when they were away from Blackwell for prolonged periods of time. Humble feared Blackwell would place "enormous pressure" on the children when they underwent their psychological evaluations and asked the court to suspend Blackwell's visitation or, alternatively, to order supervised visitations.

On March 21, five days before the hearing on Humble's motion, Blackwell filed a motion to recuse the trial court judge, Ed Magre, because he and Humble had practiced law together in the past. Judge Magre referred the motion to Judge B.B. Schraub, the presiding judge of the Third Administrative Judicial Region, who denied the motion without a hearing on March 25 because the motion was not timely filed and did not allege sufficient grounds for recusal. The March 26 hearing went forward as scheduled, and on April 2, the trial court signed an order limiting Blackwell to two supervised two-hour visits with the children per month and ordering her not to make disparaging remarks about Humble or his family. Because Dr. Frank Pugliese, the psychologist initially selected by the court to evaluate the children, was unavailable, the court ordered that Dr. David Poole evaluate the children within three weeks. The court set a status hearing in ninety days. On May 23, Humble sent a letter to the trial court in which he stated that Dr. Poole's "reports will be done as soon as he gets a bit of additional information." On May 30, the trial court sent Blackwell a letter stating that enclosed with the letter were copies of Dr. Poole's reports; the reports themselves, however, are not included in the record.

On June 19, Blackwell filed a second motion to recuse Judge Magre, stating that he and Humble practiced law together in the past and citing to rule 18b of the rules of civil procedure. Blackwell asserted that Judge Magre should have recused himself on his own motion or on Blackwell's first motion. Judge Magre again referred the motion to Judge Schraub, who assigned it to Judge James Clawson, Jr. Humble filed a response, asserting that the grounds for recusal had been disclosed during the divorce proceeding in October 2002 and that Blackwell had waived her right to seek recusal. Following a hearing, Judge Clawson denied Blackwell's motion to recuse.
In August 2004, Betty French and Monty Humble, Humble's brother, filed a petition in intervention seeking to be named possessory conservators of the children. Blackwell opposed the petition in intervention, arguing that the intervenors lacked standing to intervene. The trial court held a hearing in September 2004 to consider the petition in intervention and to reconsider Blackwell's visitation schedule. Following a hearing in September 2004, the trial court signed a judgment in January 2005, finding that the intervenors had had substantial and continued contact with the children sufficient to warrant standing to intervene under the family code, naming the intervenors as possessory conservators, and continuing to limit Blackwell's visitation with the children to two supervised visits each month. It is from this judgment that Blackwell appeals.

Recusal

In her first two issues, Blackwell argues that the trial court judge should have recused himself from the case sua sponte. In her third issue, she argues the judge should have recused himself when she filed her motion to recuse on June 19, 2003, and in her fourth issue, she contends that the assigned judge should have granted her June 2003 motion.

Rule 18a of the rules of civil procedure governs the recusal or disqualification of judges. A trial court may raise the issue of recusal on its own motion, Esquivel v. El Paso Healthcare Sys., Ltd., 225 S.W.3d 83, 88 (Tex. App.--El Paso 2005, no pet.), or a party may file a motion at least ten days before the date of trial or a hearing stating grounds for the trial judge's recusal. Tex. R. Civ. P. 18a(a). The judge shall then either recuse himself or refer the matter to the presiding judge of the administrative judicial district, who should either consider the motion or assign another judge to hear the motion. Tex. R. Civ. P. 18a(c), (d). Grounds for recusal of a trial judge include that "he or a lawyer with whom he previously practiced law has been a material witness" in the case. Tex. R. Civ. P. 18b(2)(c).

We review a trial court's decision on a motion to recuse for an abuse of discretion. McElwee v. McElwee, 911 S.W.2d 182, 185 (Tex. App.--Houston [1st Dist.] 1995, writ denied). The erroneous denial of a motion to recuse does not void or nullify the court's later rulings. In re Union Pac. Res. Co., 969 S.W.2d 427, 428 (Tex. 1998). If the grounds for recusal are fully disclosed on the record, a party may waive her right to seek recusal. Tex. R. Civ. P. 18b(5). Without a proper and timely motion to recuse, rule 18a's mandatory provisions are never triggered. Beard v. Beard, 49 S.W.3d 40, 51 (Tex. App.--Waco 2001, pet. denied) (quoting Wright v. Wright, 867 S.W.2d 807, 811 (Tex. App.--El Paso 1993, writ denied)); see McElwee, 911 S.W.2d at 186 ("If a party fails to comply [with rule 18a], he waives his right to complain of a judge's failure to recuse himself.").

Judge Ed Magre presided over the parties' divorce proceeding, signing the decree on October 8, 2002, and exercised continuing jurisdiction over issues related to the children under the family code. See Tex. Fam. Code Ann. §§ 155.001-.003 (West 2002). Appellee Humble is a lawyer who has been in practice since 1973 and whose father is a retired trial court judge in Milam County. Humble testified that he and Magre were partners together in two different law firms from 1977 through 1986. They were partners in their own firm for two or three years and then partners with several other attorneys for about seven years; the two had not been in practice together for fifteen or sixteen years. Humble described his departure from his practice with Magre as "unpleasant" and "rather acrimonious" and "thought for about ten years [Magre] was pretty unhappy about it." Humble did not believe Magre would show him any favoritism.

At the October 2002 hearing on the parties' divorce, Blackwell contested whether an agreement between the parties should be enforced and incorporated into the divorce decree, and the issue of Magre's impartiality arose. Blackwell testified that she had signed the agreement under duress, explaining, "I was fearful that Mark [Humble] had already talked to the Judge and that he's already told the Judge about this case and had already made arrangements for this case and that I would be lucky to have supervised visits with my children." She testified, "I had a lot of people come to me and tell me I wouldn't get a fair trial here and that I better get this moved out of Milam County." Later, during arguments about the enforceability of the agreement, Humble's attorney said:

I must say something about the suggestion about what's going on with the Court and the Court's violation of its duty that she alleges. At that point one must either be quiet about the trial court or file the proper motions to bring it properly . . . but you can't say that a Judge is corrupt and then come and ask for his protection.

Blackwell's attorney, who is board certified in family law and has been licensed since 1986, replied:

[F]or him to also come in and say that I should have filed a Motion to Recuse, how dare I come in here and try to get justice from this Court is also preposterous. I have absolute faith and confidence in this Court, once this Court gets to hear what the facts are. I don't have to file a Motion to Recuse if I believe this Court can be fair and impartial and I believe so, or else I would have filed something differently.

Blackwell first argues that Judge Magre should have raised the issue sua sponte and recused himself without a motion after he signed the decree because it "became clear at that hearing that the case would go beyond the issue of enforcing a negotiated settlement" and contends that we should reverse the rulings made after the decree was signed and reinstate the decree's provisions.

We do not agree that Judge Magre was somehow impartial enough to have presided over a June 2002 hearing on temporary orders, the record for which is not before us, the October 2002 hearing, and the subsequent signing of the divorce decree, but not impartial enough to have continued to exercise jurisdiction over the case after the decree was finalized. At the October hearing, the parties disputed whether Blackwell signed the agreement voluntarily or under duress, which she argued was at least in part due to her concerns about a back-room deal between Humble and Judge Magre. Despite those concerns, however, Blackwell's board-certified and experienced attorney stated she did not doubt the judge's ability to be fair and did not want to file a motion to recuse. Even if we were to assume that Judge Magre had an absolute duty to raise the issue of recusal on his own motion, Blackwell stated she did not wish to have the judge recused, and Blackwell has not cited any authority that would require Judge Magre to insist on recusing himself over the parties' wishes. We overrule Blackwell's first two issues.

Turning next to Blackwell's argument that her motion should have been granted and that Judge Magre should have recused himself when she filed the motion, we note that Blackwell's testimony shows she was aware of Humble's relationship with Judge Magre well before the October 2002 hearing. Despite this knowledge, Blackwell did not file a motion to recuse before the decree was signed. Although she testified that she worried that Humble had worked out an agreement with Judge Magre before trial, when Humble raised the issue of the judge's impartiality, Blackwell's attorney stated in no uncertain terms that she did not want to file a motion to recuse and believed Judge Magre would be fair and impartial. Her motion was filed five months later, in late March 2003, one month after the trial court modified its divorce decree and held Blackwell in contempt for violating the decree, and was insufficient under rule 18a because it did not state grounds for recusal. See Tex. R. Civ. P. 18a. Nevertheless, Judge Magre referred the motion to Judge Schraub, who denied it, finding it was untimely filed and failed to allege sufficient grounds for recusal.

Three months later, in June 2003, Blackwell filed a second motion, asserting Humble's and Judge Magre's work relationship as grounds for recusal and stating that Judge Magre should have recused himself on his own motion. Judge Magre again referred the motion to Judge Schraub, who assigned Judge Clawson to consider the motion. In July 2003, Judge Clawson held a hearing and considered the language of rule 18b, including its provision stating that parties may waive their rights to seek recusal. He noted his discomfort with the way the rules are written, but concluded, "The structure of the statutes, I think, . . . is such that you have to conclude that the rule contemplates that this can be waived and if you go with that interpretation then it has been waived and I would therefore overrule the Motion to Recuse Judge Magre."

Blackwell's June 2003 motion was filed a year after the first hearing in the case and eight months after the decree was signed. The prior relationship between Humble and Judge Magre was well known and was discussed in October 2002. Thus, the June 2003 motion was untimely. See Tex. R. Civ. P. 18a(a), 18b(5); Beard, 49 S.W.3d at 51. Further, Blackwell's trial counsel explicitly stated that she did not question Judge Magre's impartiality and did not want to have the judge recused. Having reviewed the reporter's records from the October 2002 and July 2003 hearings, we cannot hold that Judge Clawson abused his discretion in denying Blackwell's motion to recuse. Likewise, we cannot hold that Judge Magre, who we have held did not abuse his discretion in not recusing himself sua sponte, was legally obligated to recuse himself once Blackwell's untimely motion to recuse was filed. We overrule Blackwell's third and fourth issues on appeal.

Blackwell's Access to Her Children

On April 2, 2003, the trial court signed an order modifying the provisions governing possession of the children. The court found "that the material allegations contained in [Humble's] Amended Supplemental Petition are true and that the requested modifications are in the best interest of the children" (1) and ordered Blackwell's visitations restricted to supervised two-hour visits on the first and third Wednesdays of each month. In its final judgment, signed January 25, 2005, the trial court continued those same modified provisions. In her fifth issue, Blackwell contends that the trial court abused its discretion in restricting her access to and possession of her children. Blackwell argues that the court abused its discretion by modifying its decree because Humble did not show a change in the parties' circumstances that would justify the modification. See Tex. Fam. Code Ann. § 156.101 (West Supp. 2007). She further contends the court abused its discretion in incorporating the modified visitation into its final judgment issued on January 25, 2005.

To obtain a modification of a joint managing conservatorship, a party must show (1) a material and substantial change in circumstances and (2) that the change would be in the child's best interest. (2) Id. We review a trial court's modification of a joint managing conservatorship for an abuse of discretion. (3) Echols v. Olivarez, 85 S.W.3d 475, 477 (Tex. App.--Austin 2002, no pet.). "The trial court is in the best position to observe the demeanor and personalities of the witnesses and can 'feel' the forces, powers, and influences that cannot be discerned by merely reading the record," and we will not find an abuse of discretion provided some substantive, probative evidence supports the court's decision. Id. When applying the abuse-of-discretion standard to a trial court's decision to modify its provisions related to possession and custody of children, we ask first whether the trial court had sufficient information on which to exercise its discretion, applying a traditional sufficiency review, and if so, whether it acted reasonably in the application of its discretion. Id. at 477-78.

Factual Summary

Between February 2003 and September 2004, the trial court held four hearings in which evidence relevant to Humble's motion to modify was introduced. We have carefully reviewed the transcripts from all of the hearings and will condense the testimony from the various hearings into a brief summary to assist in our review of the trial court's ruling. Some of the testimony was about the parties' pre-divorce conduct or about Blackwell's three older children, who are not part of this proceeding. We recognize that evidence of pre-divorce conduct is not by itself relevant or admissible to obtain a modification, but such evidence may be offered to corroborate allegations and evidence of similar conduct since the decree. Hollon v. Rethaber, 643 S.W.2d 783, 784 (Tex. App.--San Antonio 1982, no writ) (quoting Wilson v. Elliott, 73 S.W. 946, 947 (Tex. 1903)).

1. Evidence of pre-divorce conduct or related to Blackwell's older children

Humble testified that during their marriage, Blackwell told him she had been diagnosed with borderline personality disorder. He also testified that E.B., Blackwell's oldest son, had been diagnosed with oppositional defiant disorder and was a dangerous child and committed to a psychiatric hospital for a month when he was six years old. Humble and another witness testified that once E.B. was placed with his biological father, he turned into "a wonderful child." Humble thought Blackwell's two older daughters were anti-social or sociopathic. Andy and Sondra Andrews, Humble's neighbors, testified about several incidents during the marriage when they saw Blackwell neglect or ignore Mt., who was left to cross a busy road or play on a beach by himself. Blackwell denied being diagnosed with a borderline personality, explaining that during graduate school a classmate diagnosed her with features of borderline personality.

2. Evidence related to post-divorce conduct

Asked what circumstances had changed since the divorce decree was signed, Humble said, "This continued poisoning of the children." Humble said that Blackwell's negative remarks were very unhealthy for the children. Mt. had asked Humble why he had "run Mama out of the house" or "[i]nto the Street" and told Humble that he could do whatever he wanted to at Blackwell's house. Md. had begun "parroting" things such as, "Your [sic] going to die in sixteen years," and, "I can't smell alcohol, Daddy, but Mama can." When Humble asked why Md. had abruptly decided she disliked one of Humble's friends with whom she had been close, Md. said, "How do I know who I'm supposed to believe, I'm only four?" Humble testified that the children were having bad dreams about Blackwell, that Mt. was unhappy and withdrawn, that Mt.'s grades were declining, and that Mt. had started to show oppositionally defiant behavior similar to that exhibited by E.B. Humble said that after the children returned home after a long visit with Blackwell, their "behaviors were astoundingly bad." He also testified that Blackwell told Md. to lie about being abused by French:

[Mt.] said [Md.] lied when she said that Nana had choked and kicked her[], he said "That's a lie, because that didn't happen" and [Md.] very promptly said "Daddy, I didn't lie, Mama told me to say that."

After Blackwell's visitations had been limited to two supervised visits a month, Humble testified that Mt.'s mood had improved, he had gained weight and self-confidence, he had improved in his reading ability, and he no longer had discipline issues at school or at home. Humble also said Md. was doing well and was well-adjusted and happy.

After Blackwell reported French's alleged abuse of Md., the police called Child Protective Services to investigate. Caseworker Shannon Soechting interviewed Md., who said that she felt safe at Humble's and French's houses. Mt. told Soechting that French never hit him or Md., French denied the allegations and appeared to Soechting to be truthful, and Soechting ruled out the allegations. French testified that she was a retired registered nurse and was very close with the children. French denied choking or kicking Md. and testified that shortly after the divorce, Md. said, "Mother says you're a stink-head." Don Humble, Humble's father and French's ex-husband, testified that while he was caring for the children recently, Md. said, "I hate Nana [French]. Nana hurts me." She then turned to him and said, "I don't like you, you hit me." Don told her she knew that was not true, and Md. "started giggling about it," as if it were a joke.
Darnesha McGregor, who babysat for the children, never saw Blackwell hurt the children or fight with Humble, but testified that Blackwell told her that Blackwell told Md. that "Grandmama [French] is mean and she hit you." McGregor further testified that since the divorce, Blackwell said negative things about Humble in front of the children. Andy Andrews, who was the former principal of Mt.'s school, testified that Mt. became "very withdrawn" after the divorce and that Mt.'s teacher thought Mt. needed "some help, some intervention, possibly some counseling." Blackwell testified that she married Kendall Hightower in June 2003. Although she filed for divorce in June 2004, the divorce proceeding was on hold while she and Hightower tried to work out their marriage. Blackwell testified that Hightower is bipolar and has mood swings, which are moderated by medication, but when he stops taking his medication, he becomes very erratic. Asked whether it was safe to allow Hightower around the children, she said, "I don't know--you know, when these incidents occurred, I don't know if he was on his medication. . . . When he's on his medication, I don't know that there's a problem." Blackwell said that if the court ordered her not to allow Hightower around Mt. and Md., she would comply and that Hightower had never been violent toward her or her children. The trial court admitted into evidence a number of email communications from Hightower to various people, including Blackwell, Humble, and Humble's attorney. Many of the emails were violent and threatening in tone, and Hightower threatened to hunt down several men he thought were behaving inappropriately toward Blackwell and threatened to kill one man in particular. In other emails, however, Hightower said he would never harm anyone and that he was in control of himself. Blackwell testified that many of the threatening statements were made while Hightower was off his medication.

Blackwell believed French had hit, choked, and kicked Md. and said that French had beaten and choked Humble when he was a child. Blackwell's oldest child testified that she had never seen violence between her mother and Hightower and that she did not think Mt. and Md. would be in danger if Blackwell had more visitation. One of Blackwell's coworkers and one of her friends testified that Blackwell was a good, attentive parent and that they never saw inappropriate behavior or heard her disparage Humble in front of the children.

Psychologist Charles Pierce testified about borderline personality disorder and its symptoms in general and said that a parent with the disorder would cycle between affection and anger or neglect, which would confuse and harm a child. Dr. Pierce also reviewed Hightower's medical records, which showed that Hightower stopped taking his medications because he believed he was well, he could not afford them, he did not like the sexual dysfunction they caused, and "his wife had asked him to stop taking the medications because of the sexual dysfunction." Pierce noted Hightower's paranoid delusions and homicidal threats and said Hightower "would be dangerous around anyone who set off that mood in that kind of condition." Dr. Pierce did not treat or examine the children, and although the record reflects that Dr. Poole evaluated the children and produced reports for the trial court and the parties, his reports are not contained in the record, mentioned by the parties in any hearings, or referenced by the trial court's later orders. Indeed, the record does not reflect whether the trial court read or considered the reports in reaching its decisions.

Change of Circumstances

We ask first whether the trial court had substantive and probative evidence on which to base its decision that the parties' circumstances had changed so as to justify a modification of the conservatorship provisions. See Echols, 85 S.W.3d at 477-78. Although several witnesses testified that Blackwell was a good, attentive mother who never abused her children, there was also testimony that since the divorce, she had neglected the children and disparaged Humble and his family in their presence, which confused and depressed the children. See In re Marriage of Chandler, 914 S.W.2d 252, 254 (Tex. App.--Amarillo 1996, no writ) (poisoning child's mind against parent can be grounds for modification). Further, she had married a man who is bipolar and who made violent threats toward her and people he perceived were interfering with their relationship. See In re C.Q.T.M., 25 S.W.3d 730, 734 (Tex. App.--Waco 2000, pet. denied) (remarriage and step-parent's conduct and abilities may be considered in modification proceeding). There was evidence that since the divorce, the children's behavior, school performance, and moods had suffered and that both children exhibited behavior showing that Blackwell had manipulated them into saying bad things about Humble and his mother. The trial court as fact-finder was obligated to consider all the evidence and resolve any evidentiary conflicts. See Lilley v. Lilley, 43 S.W.3d 703, 705 (Tex. App.--Austin 2001, no pet.). The trial court did not abuse its discretion in determining that there was evidence from which it could conclude that the circumstances had changed and that a modification would be in the children's best interests. See Tex. Fam. Code Ann. § 156.101. We next consider whether the trial court properly exercised its discretion in determining the restrictions it placed on Blackwell's possession and access.

Restrictions on Blackwell's Possession

Blackwell argues on appeal that the restrictions placed on her are "draconian," "usually reserved for mothers who have burned or scalded a child, broke[n] a child's limb, beaten a child, exposed a child to narcotics and dangerous [drugs], sexually abused the child or allowed a boyfriend to do so." She argues that there is no evidence to justify the restrictions, other than the trial court's "simply doing for his ex-partner, whatever the ex-partner asks him to do."

Certainly, there was evidence presented in this case on which the trial court could have determined that the children's best interests would be served by restricting Blackwell's possession and access. (4) However, this record lacks findings that would allow us to determine whether the trial court appropriately exercised its discretion in imposing the severe limits that it chose. Therefore, we must reverse the portion of the judgment that denies Blackwell's possession and limits her access to two supervised visits a month and remand the case for further proceedings.

It is left to a trial court's discretion to establish the terms and conditions of conservatorship. In re L.M.M., No. 03-04-00452-CV, 2005 Tex. App. LEXIS 7191, at *28-29 (Tex. App.--Austin Aug. 31, 2005, no pet.) (mem. op.). The trial court has the authority to determine frequency and duration of visits and to place any necessary limitations and safeguards on visitations. Id. at *29. The child's best interest is the primary consideration in deciding to limit a parent's possession of and access to her child, Ditraglia v. Romano, 33 S.W.3d 886, 889 (Tex. App.--Austin 2000, no pet.), and the family code expresses a strong presumption that it is generally in a child's best interest to have significant contact with both parents. (5) See Tex. Fam. Code Ann. § 153.131 (West 2002), § 153.137 (West Supp. 2007). Absent a finding of family violence, a trial court considering an original proceeding concerning conservatorship should appoint both parents as joint managing conservators unless the court finds such appointment "would significantly impair the child's physical health or emotional development." Id. § 153.131; see In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000) (chapters 153 (governing original proceedings) and 156 (governing modification proceedings) are "distinct statutory schemes that involve different issues" and impose different standards and burdens of proof, and chapter 153 presumptions are not carried over into chapter 156).

Chapter 153, which governs original custody proceedings, provides that a trial court is to be guided by a presumption that the standard possession order provides the "minimum amount of time for possession of a child by a parent named as a joint managing conservator," Tex. Fam. Code Ann. § 153.137, although the court is not required to order standard possession. As we discussed in In re L.M.M., if the court decides in a modification proceeding that standard possession is not in the child's best interest, it may deny possession and access or craft an order placing restrictions on possession or access that will eliminate the danger posed to the child's physical or emotional well-being. 2005 Tex. App. LEXIS 7191, at *29 (quoting In re Walters, 39 S.W.3d 280, 286 (Tex. App.--Texarkana 2001, no pet.)). A court may not, however, deny a conservator's rights of possession and access absent a finding that possession and access would endanger the child's welfare, and "any limitations on such rights cannot exceed that [sic] required to protect the child's best interest." Id. at *29-30.

Under the trial court's modified judgment, Blackwell retains limited rights of access to Mt. and Md., but she has been denied possession. See id. at *34. Although we recognize that the trial court did not altogether deny Blackwell's right to access to the children, which we would scrutinize closely to be sure was supported by "extreme grounds," see Allison v. Allison, 660 S.W.2d 134, 137 (Tex. App.--San Antonio 1983, no writ), the severe limits placed on her contact with her children still require our careful review.

The trial court did not make and Blackwell did not request findings of fact, which generally results in our making implied findings supported by the record. (6) See Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.--Dallas 2004, no pet.). However, by continuing Blackwell's appointment as joint managing conservator in the orders in question here, the trial court impliedly found that her possession of or access to the children would not significantly endanger their physical or emotional welfare. See Tex. Fam. Code Ann. § 153.131(a); Roosth v. Roosth, 889 S.W.2d 445, 451 (Tex. App.--Houston [14th Dist.] 1994, writ denied) (appointment of party as possessory conservator showed implied finding that party's "possession or access to the children would not endanger the physical or emotional welfare of the children"). The trial court's denial of Blackwell's possession and its severe restrictions on her access to the children give rise to implied findings that conflict with those arising from her continued status as a joint managing conservator of the children. (7)

There was sufficient evidence to support the trial court's decision that some limitations on Blackwell's possession and access would be in the children's best interests. However, the duration and severity of the restrictions and the difficulty Blackwell will face in seeking future modifications that might allow her more contact with her children cause us some concern. While the trial court may have believed that the evidence justified the severe restrictions it placed on Blackwell, those restrictions seem inconsistent with the court's decision to maintain her as a managing conservator, and we are left to speculate about what, in fact, it did believe. Because the trial court made no findings of fact and because the implied findings that spring from the court's determinations are in conflict, we are unable to discern what guiding rules and principles the court applied and whether the court appropriately exercised its discretion in denying Blackwell's possession and limiting her access to her children.

We recognize that Blackwell did not explicitly raise the issue of best interest in her appellate brief. However, she attacks the modification globally, and in deciding to modify a parent's contact with her children, the children's best interests must always be the trial court's primary concern. See Tex. Fam. Code Ann. § 156.101 (modification of existing conservatorship order); see also L.M.M., 2005 Tex. App. LEXIS 7191, at *29 (court may limit possession and access if standard possession would endanger child's best interest). We share the dissent's concerns and agree that, generally, we should defer to the trial court's judgment in reviewing modification orders. However, because the trial court imposed strict restrictions on Blackwell's contact with her children, which we must consider carefully, we cannot ignore the issue of best interest and cannot ignore the fact that, without some explanation, the trial court's orders would seem to be based on conflicting best interest findings. Under these circumstances and given the passage of time since the trial court restricted Blackwell's contact with the children, we believe that remand, which will allow the trial court to consider the parties' circumstances anew, as well as additional testimony and any available evidence about the children's psychological conditions, is the best solution. Remand will give the court the opportunity to resolve some of the conflicts that we have discussed and to ensure that the restrictions placed on Blackwell are indeed in the children's best interests and do not exceed those required to protect the children. See L.M.M., 2005 Tex. App. LEXIS 7191, at *29-30. We therefore reverse the portion of the judgment restricting Blackwell's visitation and remand the case to the trial court for further proceedings consistent with this opinion. See Hopkins v. Hopkins, 853 S.W.2d 134, 138-39 (Tex. App.--Corpus Christi 1993, no writ) ("As the trial court's findings are contradictory, . . . we remand the case to the trial court so that it may determine whether appellant's access to the children is in the children's best interest, and if so, what limitations to appellant's rights as possessory conservator are in the children's best interest.").

Intervenors

In her sixth and final issue, Blackwell complains that the trial court abused its discretion in allowing the children's grandmother and uncle to intervene and in appointing them as possessory conservators of the children.

A non-parent may not file an original suit seeking to be named possessory conservator, but a grandparent or other person who the trial court finds has had substantial past contact with a child may be granted leave to intervene in a pending suit concerning child custody. Tex. Fam. Code Ann. § 102.004(b) (West Supp. 2007). (8) We review a trial court's decision to allow a petition in intervention for an abuse of discretion. McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ).

When French was asked about her petition in intervention, she said she wanted to have defined legal rights to the children. Asked whether she was having trouble seeing the children and what the purpose of her petition was, she answered that she was able to see the children and wanted to see them have healthy development. She agreed when asked whether she would want to raise the children should anything happen to Humble, saying, "I feel like I'm competent and I think that would be in the children's best interest." Monty Humble, Humble's brother, testified that he wanted to have defined legal rights to the children to protect them. He testified that he had "seen them regularly during their lives." He said that the "current purpose" of his petition was to be named co-possessory conservator, not to be named a future managing conservator, but that he "want[ed] to be available if Mark is unavailable." He testified that "the key issue is whether the children could visit us without Mark present and whether we would be able to take care of them during that time."

We agree with Blackwell that Monty Humble did not show that he had "substantial past contact" with the children. Monty testified only that he had "seen them regularly." Without more, this does not show substantial past contact sufficient to warrant his intervention, especially in this case in which both parents are living and present and there is no testimony that the children are at risk living with Humble. Therefore, based on the meager facts presented with regard to Monty Humble's relationship with the children, we hold that the trial court erred in allowing him to intervene and in appointing him as a possessory conservator. We reverse that portion of the judgment.

As for French, based on the evidence about the post-divorce circumstances, we cannot hold that the trial court abused its discretion in allowing her to intervene. She frequently cared for the children, lived nearby, and spent a great deal of time with the family, and the trial court reasonably could have determined that she showed substantial past contact with the children. We must then consider whether the trial court abused its discretion in naming her possessory conservator.

If a child's managing conservator dies or is incapacitated and the right to possession of the child is not governed by an order, a parent has superior rights of possession over a non-parent. See In re P.D.M., 117 S.W.3d 453, 459-60 (Tex. App.--Fort Worth 2003, pet. denied) (death of managing conservator ends conservatorship order for possession purposes, and if managing conservator parent dies, "someone must take immediate possession of the children, and the possessory conservator parent's right of immediate possession is superior to others' rights"); see also Tex. Fam. Code Ann. § 157.376 (West 2002). If a court appoints a managing conservator, it "may" appoint one or more possessory conservator as well. Tex. Fam. Code Ann. § 153.006 (West 2002).

Humble testified that he wanted his mother and brother to have legal rights to care for the children in case anything happened to him and that he did not want Blackwell ever to have primary custody over the children. He worried that if Hightower was "fed" an idea about the murder of a prominent man in a small town and then told that Humble was "likely to kill" Hightower, "it doesn't take too much to figure out that A plus B is maybe going to equal C. It's sort of like sending him at me like a Manchurian Candidate or something." Humble essentially argued that he feared Hightower would try to kill or hurt him and that he wanted his mother and brother to be appointed possessory conservators to ensure that someone other than Blackwell would care for the children.

French and Humble testified that French had a close relationship with the children and spent significant amounts of time with them. French, a retired nurse, helped Humble make health-care decisions and sometimes took the children to the doctor. She also babysat and helped care for the children. Further, Humble testified that he feared Hightower could be dangerous if he was led to believe that Humble was a threat. There was testimony about Hightower's mental instability and about how the children suffer when in Blackwell's care for long periods of time.
Blackwell and Humble are both named joint managing conservators and, therefore, the trial court's judgment does not run afoul of section 153.131's presumption that it is in a child's best interest for her parent or parents to be appointed managing conservator. See Tex. Fam. Code Ann. § 153.131(b) (West 2002). Because Humble and Blackwell are joint managing conservators, the court had the power to appoint one or more possessory conservators. See id. § 153.006. Although this case differs from most cases involving the appointment of non-parent possessory conservators, we cannot hold that the trial court abused its discretion in deciding that it was in the children's best interest to name French as possessory conservator. See Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (discussing factors to be considered in determining child's best interest); In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.--Beaumont 2001, no pet.) (discussing application of Holley factors in conservatorship dispute between potential adoptive parents and maternal grandmother).

Further, in the present circumstances, French's appointment has no practical effect. Should something happen to Humble, the trial court would then have to determine how to best serve the children's best interests in deciding how to allocate their care between Blackwell and Humble, considering the situation presented at that time. Considering the evidence presented by this case, we cannot hold that the trial court abused its discretion in naming French possessory conservator.

Conclusion

We have held that the trial court did not err by failing to recuse itself sua sponte or upon Blackwell's untimely motion, that the assigned court did not err in denying Blackwell's motion to recuse, and that the trial court did not err in allowing French to intervene and in naming her a possessory conservator. It was error, however, to allow Monty Humble to intervene and seek to be named possessory conservator. Finally, we cannot adequately review the trial court's severe restriction on Blackwell's possession of and access to her children. Therefore, we reverse the portions of the trial court's judgment appointing Monty Humble as possessory conservator and restricting Blackwell's access. We remand the cause to the trial court for further proceedings related to Blackwell's possession of and access to her children.
__________________________________________
David Puryear, Justice

Before Justices Patterson, Puryear and Henson;
Concurring and Dissenting Opinion by Justice Patterson
Affirmed in part; Reversed and Remanded in part
Filed: December 14, 2007

1. In his "supplemental" petition, Humble set out various allegations related to Blackwell's treatment of the children and the children's behavior following an extended visit with Blackwell. He stated that since his separation from Blackwell, circumstances had materially and substantially changed in that Blackwell was no longer being cooperative with Humble or complying with the trial court's orders. Humble alleged that Blackwell had begun threatening him "with vague revelations about his shortcomings," arbitrarily moving pick-up and drop-off times related to visitation, and "flying in to [sic] a rage about small things."
2. The standard for modifying a joint managing conservatorship is less stringent than that applied for modifying a sole managing conservatorship. Echols v. Olivarez, 85 S.W.3d 475, 478 (Tex. App.--Austin 2002, no pet.).
3. See In re J.R.D., 169 S.W.3d 740, 746-52 (Tex. App.--Austin 2005, pet. denied) (Puryear, J., concurring) (arguing that standards of review applied to conservatorship issues are inconsistent with constitutional nature of parental rights and arguing that clear-and-convincing standard should be applied).
4. We bear in mind the distinction between possession and access. See In re L.L.M., No. 03-04-00452-CV, 2005 Tex. App. LEXIS 7191, at *34 (Tex. App.--Austin Aug. 31, 2005, no pet.) (mem. op.) (access allows conservator to visit and communicate with child; possession allows conservator to exercise control over child to exclusion of others); see also Tex. Fam. Code Ann. § 153.135 (West 2002) ("Joint managing conservatorship does not require the award of equal or nearly equal periods of physical possession of and access to the child to each of the joint conservators.").
5. The natural right between parents and children is of constitutional dimension. See Holley v. Adams, 544 S.W.2d 367, 370 (Tex. 1976). Blackwell raises a constitutional argument on appeal but did not raise it before the trial court. Therefore, we will not address it. See Tex. R. App. P. 33.1; Carrizales v. Tex. Dep't Protective & Regulatory Servs., 5 S.W.3d 922, 925 (Tex. App.--Austin 1999, pet. denied) (constitutional challenge not raised in trial court is waived on appeal).
6. We recognize that section 156.101 of the family code does not specifically require a trial court to make written findings of best interest in a modification proceeding. Tex. Fam. Code Ann. § 156.101 (West Supp. 2007). However, section 156.101 bars a trial court from modifying a custody order unless the modification is in the child's best interest. Id. Based on our review of the record and without more explicit findings and explanation by the trial court, we do not believe we can properly evaluate the modification and restrictions the court placed on Blackwell's contact with her children in light of the court's finding that it was in the children's best interest for Blackwell to remain a joint managing conservator.
7. The temporary order that first limited Blackwell's visitation stated that the trial court found "that the material allegations contained in the Amended Supplemental Petition are true and that the requested modifications are in the best interest of the children."
8. In 2005, the legislature amended section 102.004 to add a further condition on someone seeking to intervene and seek possessory conservatorship. Under the amended statute, a grandparent or a person with significant past contact may intervene in a pending suit only if there is "satisfactory proof . . . that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair" the child. See Act of May 29, 2005, 79th Leg., R.S., ch. 916, § 3, 2005 Tex. Gen. Laws 3148, 3149 (effective June 18, 2005, current version at Tex. Fam. Code Ann. § 102.004(b) (West Supp. 2007)). These proceedings were underway before the amended statute's effective date, thus, we apply the version in effect at the time. Id. at 3155, § 25. Because the language referenced above was not changed by the amendment, we cite to the current version. See Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 125.

Default divorce decree provisions must be supported by evidence

In order to grant divorce by default, trial court must still receive sufficient evidence to substantiate the allegations in the petition; i.e. prove-up is required. A default judgment in a divorce suit is subject to attack for insufficient evidence on appeal. In this restricted appeal, the Austin Court of Appeals finds error on the face of the record and concludes that the judgment should be reversed for lack of evidence on the value of the community property. Award of child support for disabled child is also reversed because no evidence on the relevant factors was presented at the final hearing, and because the amount ordered might have been affected by the property division. Finally, the court reversed the award of attorneys fees, for the same reason.

Magdalena Rodriguez Wolk v. Robert E. Wolk, No. (Tex.App.- Austin, Sep. Mar. 12, 2007)(Opinion by Justice Patterson)(default divorce)(Before Justices Patterson, Pemberton and Waldrop)

Magdalena Rodriguez Wolk v. Robert E. Wolk--Appeal from 261st District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 261ST JUDICIAL DISTRICT
NO. D-1-FM-05-006965, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

This is an appeal from a default judgment granting a final divorce decree. In four issues, appellant Magdalena Rodriguez Wolk contends that (i) she meets the requirements of a restricted appeal; (ii) there is no evidence in the record to support the trial court's setting of the amount of child support; (iii) there is no evidence in the record to support the trial court's division of the marital estate; and (iv) there is no evidence to support the trial court's assessment of attorney's fees and court costs. For the reasons that follow, we affirm the decree in part, and reverse and remand as to the issues raised by appellant.

PROCEDURAL AND FACTUAL BACKGROUND

On October 20, 2005, appellee Robert Wolk filed for divorce from appellant. Appellant did not answer or otherwise appear. A brief hearing was held on April 5, 2006. The record shows that Mr. Wolk was the only witness to testify. He testified that he and appellant have a nineteen-year-old child with Down syndrome, that appellant has always been the primary caretaker for the child, and that appellant had taken care of the child for many years. He presented evidence of his income and asked the court to award appellant child support in the amount of $632 per month. Mr. Wolk testified that he had paid at least $700 to $1,500 per month for the last fifteen years in mortgage payments for the home where appellant and their child reside and asked the court not to grant retroactive child support. Mr. Wolk also testified that he paid $408 per month to provide health insurance for the child.

With regard to the division of property, Mr. Wolk testified that he was asking the trial court to award each of the parties "any and all personal effects in their possession" and "any cash, bank accounts, retirement accounts in their possession . . . in their name"; to require each party "to keep and pay any and all debts in their name"; and to divest Mr. Wolk of his interest in the community homestead and award it to appellant with appellant being responsible for "the mortgage and all other matters relating to the property." He testified to the location and legal description of the community homestead and stated that it was the only real estate that he and appellant both owned, but he did not provide testimony on the property's value or the outstanding debt on the property. The trial court signed a default divorce decree granting the relief sought on the same day as the hearing. The decree specified that each party was responsible for his or her own attorney's fees, expenses and costs, and that court costs were to be borne by the party that incurred them. On October 4, 2006, appellant filed a notice of appeal.

ANALYSIS

In her first issue, appellant argues that she is entitled to a restricted appeal. A party filing a restricted appeal must demonstrate he filed the appeal within six months of the date the judgment was rendered; he was a party to the suit; he did not participate at the hearing that resulted in the judgment complained of or file any post-judgment motions or appeals; and error is apparent on the face of the record. Tex. R. App. P. 26.1(c), 30; Alexander v. Lynda's Boutique, 134 S.W.3d 845, 848 (Tex. 2004). The "face of the record" consists of all the papers on file in the appeal, including the reporter's record. Vazquez v. Vazquez, ___ S.W.3d ___, No. 14-05-01257-CV, 2007 Tex. App. LEXIS 4713, at *4 (Tex. App.--Houston [14th Dist.] June 19, 2007, no pet.); see also Norman Commc'ns v. Texas Eastman Co., 955 S.W.2d 269, 270 (Tex. 1997).
Mr. Wolk concedes that appellant has established the first three requirements of a restricted appeal and that only the fourth requirement, error on the face of the record, is at issue. In her second, third and fourth issues, appellant argues that error is apparent on the face of the record as to the trial court's determinations regarding the division of the marital estate, the amount of child support, and the allocation of attorney's fees and court costs. As to the trial court's determinations on these issues, we agree that error is apparent on the face of the record.

Standard of Review

"In a suit for divorce, the petition may not be taken as confessed if the respondent does not file an answer." Tex. Fam. Code Ann. § 6.701 (West 2006). When a respondent in a divorce case fails to answer, the petitioner must still present proof to support the material allegations in the petition. Vazquez, 2007 Tex. App. LEXIS 4713, at *5-6; see also Barry v. Barry, 193 S.W.3d 72, 75 (Tex. App.--Houston [1st Dist.] 2006, no pet.). Because appellant failed to answer or appear, Mr. Wolk was required to present proof at trial to support the material allegations in his petition.

Most appealable issues in family law cases are subject to evaluation under the abuse of discretion standard, including the division of property and the assessment of child support. Sandone v. Miller-Sandone, 116 S.W.3d 204, 205 (Tex. App.--El Paso 2003, no pet.). The test for abuse of discretion is whether the court acted without reference to any guiding principles and rules. Id. at 206. A default judgment of divorce also is subject to an evidentiary attack on appeal. Vazquez, 2007 Tex. App. LEXIS 4713, at *6. When sufficiency review overlaps the abuse of discretion standard, the inquiry on appeal is two-fold: did the trial court have sufficient information upon which to exercise its discretion and did the trial court err in its application of its discretion. Sandone, 116 S.W.3d at 206. Evidentiary sufficiency review comes into play as to the first question. Id. (1)

Division of Marital Estate

In her third issue, appellant contends that the trial court erred in its division of the marital estate. The trial court awarded the community homestead to appellant, but ordered her to pay the "balance due, including principal, interest, tax, and insurance escrow, on the promissory note executed by [Mr. Wolk and appellant] on the [homestead]." The trial court also awarded all personal effects, cash, bank accounts and retirement accounts to the party in possession and ordered both parties to pay "any and all debt" in his or her name.

The Texas Family Code provides that "[i]n a decree of divorce or annulment, the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage." Tex. Fam. Code Ann. § 7.001 (West 2006). Courts have broad discretion in suits for divorce when dividing the property; but the division must be "just and right." Sandone, 116 S.W.3d at 207.
This case is similar to O'Neal v. O'Neal, 69 S.W.3d 347 (Tex. App.--Eastland 2002, no pet.), also a restricted appeal of a default divorce judgment. In O'Neal, the petitioner was the only witness at the hearing and provided scant testimony. Id. at 348-50. The trial court divided the community property, including real property, cash, bank accounts, retirement accounts, IRA accounts, stocks, bonds and securities between the parties, without evidence of the value of the property. Id. at 348-50. The court of appeals concluded that the trial court had abused its discretion in the division of the estate based on lack of evidence. Id. at 350.

The El Paso court of appeals reached the same conclusion in another case involving a restricted appeal of a default divorce decree. Sandone, 116 S.W.3d at 205. The court reversed the trial court's division of property because there was no evidence of the value of the assets or the amount of the liabilities. Id. at 207-08. Stating that "[w]ithout the ability to determine the size of the community pie, we can make no determination that the slices awarded to each spouse were just and right," the court held "a division of community property cannot be upheld where the record is absolutely devoid of any testimony concerning the value of the property divided by the court." Id. at 205, 207-08; see also Wilson v. Wilson, 132 S.W.3d 533, 538 (Tex. App.--Houston [1st Dist.] 2004, no pet.) (reversing property division due to the "dearth of evidence identifying, describing, and valuing the community estate").

Similarly, this record lacks evidence identifying, describing, and valuing the community estate. Although Mr. Wolk testified as to the location and legal description of the community homestead, and stated that he had made mortgage payments on the home of at least $700 to $1,500 per month for fifteen years, no other evidence was presented as to the value of the property or the outstanding debt on the property. Likewise, no evidence was presented to identify, describe, or value the other assets and liabilities divided in the decree. Instead, Mr. Wolk merely asked that the court allow each party to "keep any cash, bank accounts, retirement accounts in their possession . . . in their name" and that "each party be able to keep and pay any and all debts in their name." Accordingly, we conclude error is apparent on the face of the record and that the trial court abused its discretion in the division of the marital estate based on the lack of evidence. See Sandone, 116 S.W.3d at 208. We sustain appellant's third issue.

Amount of Child Support

In her second issue, appellant contends the trial court erred in its determination of the amount of child support. The trial court applied the child support guidelines, based upon evidence of Mr. Wolk's income, and awarded appellant $632 per month in child support. See Tex. Fam. Code Ann. § 154.130 (West 2002). Because we have remanded the division of the community estate to the trial court, we also remand the determination of child support as such an award may be "materially influenced" by the property division, and we should not substitute our discretion for that of the trial court. See Vazquez, 2007 Tex. App. LEXIS 4713, at *12; see also Wilson, 132 S.W.3d at 539.

The Texas Family Code also specifies four factors that a court "shall determine and give special consideration to" when setting the amount of child support for a disabled child after his eighteenth birthday. Tex. Fam. Code Ann. § 154.306 (West 2002). The factors are:

(1) any existing or future needs of the adult child directly related to the adult child's mental or physical disability and the substantial care and personal supervision directly required by or related to that disability;
(2) whether the parent pays for or will pay for the care or supervision of the adult child or provides or will provide substantial care or personal supervision of the adult child;
(3) the financial resources available to both parents for the support, care, and supervision of the adult child; and
(4) any other financial resources or other resources or programs available for the support, care, and supervision of the adult child. Id.

Though evidence was presented that the child has Down syndrome, that appellant has always been the primary caretaker, and that she has been taking care of the child for years, there was no evidence showing the child's current or future medical needs relating to his disability, the substantial care and supervision required relating to the child's disability, whether appellant pays or will pay for the care or supervision of the child or will provide substantial care, or financial or other resources or programs available for the support and care of the child. We conclude that on the face of the record, the trial court did not have sufficient information "to determine and give special consideration" to the statutorily required factors. See id.; see also Sandone, 116 S.W.3d at 208. We sustain appellant's second issue.

Attorney's fees and court costs

In her fourth issue, appellant contends the trial court erred in its assessment of attorney's fees and court costs. The trial court ordered in the divorce decree that each party was responsible for his or her own attorney's fees, expenses and costs, and that court costs were to be borne by the party that incurred the costs. A court may apportion attorney's fees in a divorce action as part of a just and right division of the property. Sandone, 116 S.W.3d at 208. Mr. Wolk, however, did not present any evidence of incurred attorney's fees. Because we have reversed and remanded the division of the marital estate, and because no evidence was presented on the amount of incurred attorney's fees, we sustain appellant's fourth issue and remand the assessment of fees and costs for further consideration by the trial court in connection with the other remanded issues. See Barry, 193 S.W.3d at 76.

CONCLUSION

We affirm the trial court decree in part, and having sustained appellant's issues, reverse and remand for a new trial on the issues raised by appellant.
__________________________________________
Jan P. Patterson, Justice
Before Justices Patterson, Pemberton and Waldrop
Affirmed in part; Reversed and Remanded in part
Filed: September 12, 2007

1. Because we conclude that the trial court did not have sufficient information to exercise its discretion in the division of the marital estate, the assessment of child support, or the award of attorney's fees, we only address the first inquiry as to each issue appellant raises.

TDFP v. Barlow (Tex.App.- Austin, Jun. 28, 2007)

TDFP [fka CPS] v. Barlow (Tex.App.- Austin, Jun. 28, 2007)(Majority Opinion by Pemberton)

AFFIRMED: Opinion by Justice Pemberton
See ---> Dissenting Opinion by Patterson
Before Justices Patterson, Pemberton and Waldrop

Texas Department of Family and Protective Services v. Jennifer Barlow
Appeal from 98th District Court of Travis County

FROM THE DISTRICT COURT OF TRAVIS COUNTY, 98TH JUDICIAL DISTRICT
NO. GN401059, HONORABLE LORA J. LIVINGSTON, JUDGE PRESIDING

MEMORANDUM OPINION BY PEMBERTON

The Department of Family and Protective Services (1) appeals from a final judgment of the district court reversing its order that Jennifer Barlow was a person responsible for the "neglect" of children whose name should be placed on the Department's central registry of "designated perpetrators" of child neglect. The district court held that the Department's order was not supported by substantial evidence. We affirm the district court's judgment.

BACKGROUND

At relevant times, Barlow was a case manager for a private child-placing agency licensed by the Department, For Children's Sake. (2) For Children's Sake maintained relationships with certain foster homes, and would place foster children in those homes. Barlow oversaw the care and condition of foster children assigned to her during their placements in the agency's foster homes.

On August 3, 2003, one of the foster children assigned to her--an eight-year-old boy, K.M.--sexually "acted out" on another, J.L., a four-year-old boy, during their temporary respite placement in the foster home of Isabel and Don Barron. Ms. Barron discovered the pair in bed and found K.M., his pants down, with an erection, on top of J.L., who was clothed. A second four-year-old boy, A.A., was sitting in the room.

This incident was reported to the Department, which is charged with investigating reports of alleged child "abuse" or "neglect" by "person[s] responsible for a child's care, custody or welfare." Tex. Fam. Code Ann. § 261.301(a), (e) (West 2002). (3) Child "abuse" and "neglect," as well as "person[s] responsible for a child's care, custody or welfare" within the Department's jurisdiction, are defined in section 261.001 of the family code. Id. § 261.001(1), (4), (5) (West 2002). If the Department staff concludes, by a preponderance of the evidence, that an individual "is responsible for abuse or neglect of a child for whom that person has responsibility for care, custody or welfare as defined by [family code] § 261.001(5)," it makes a "summary finding" that the individual is a "designated perpetrator" of the abuse or neglect. 40 Tex. Admin. Code § 700.512(b)(2) (2003). (4) Such a finding, unless overturned, has consequences that include the placement of information regarding the "designated perpetrator" of the "abuse" or "neglect" in the Department's central registry. See Tex. Fam. Code Ann. § 261.002 (West 2002); 40 Tex. Admin. Code § 700.104 (2003). This information would be disclosed to third parties, for example, whenever a child-care provider ran a required background check on a prospective hire. See 40 Tex. Admin. Code §§ 745.611, .615 (2003).

Initially, the Department did not assign the incident report as a potential abuse or neglect investigation. It did so, however, after additional information came to light that, as the Department's representative put it, "this was not just . . . the average eight-year-old playing . . . doctor or whatever with a four-year-old," but "this eight-year-old had an extensive history of sexually acting out with other children and his siblings." The Department's staff began to investigate the incident as involving possible neglectful supervision of the children. (5) The Barrons, the foster parents, were initially identified as "alleged perpetrators," or suspected as being responsible for the alleged neglectful supervision. 40 Tex. Admin. Code § 700.521 (2003). The incident, the parties agree, occurred one morning after Isabel Barron had left K.M., J.L., and three other foster children unattended while they ate breakfast in the kitchen, and retired to her bedroom and master bathroom, closed her door, and prepared for the day. Five to ten minutes later, Ms. Barron later heard sounds coming from a bedroom and discovered K.M. "acting out" with J.L., as described earlier.

As the investigation proceeded, however, the Department's focus shifted to Barlow based on assertions by the Barrons that Barlow never fully disclosed the full nature of K.M.'s behaviors to them or explained how to supervise him. Also significant to the Department was the fact that Barlow had learned, on the day before the incident, that the Barrons were permitting K.M. to share a bedroom with the two four-year-old boys. The Department's staff ultimately ruled out the Barrons but found "reason-to-believe" that Barlow was a "designated perpetrator" of "neglect" of both J.L. and K.M. See id. §§ 700.511(1) & (2), .512(2) (2003).

Barlow requested an administrative review of this determination, see Tex. Fam. Code Ann. § 261.309(c) (West 2002), which sustained the original findings. She then requested a "release hearing," a proceeding governed by the Administrative Procedures Act (APA) in which the Department had the burden to establish its administrative findings by a preponderance of the evidence. 40 Tex. Admin. Code §§ 700.601-.605 (2003). The Department referred the case to the State Office of Administrative Hearings, where a contested case hearing was held before an administrative law judge.

Following the hearing, as noted, the Department rendered an order sustaining its administrative findings. The district court reversed this order, finding that it was not supported by substantial evidence. The Department appeals.

DISCUSSION

The Department's order rested upon two ultimate legal conclusions, both of which were required to support its placing Barlow's name in the central registry: (1) that Barlow "was a person responsible for the care, custody, or welfare of K.M. and J.L., as set out in Tex. Fam. Code Ann. § 261.001(5)," and thus within the class of persons subject to having their names placed on the Department's central registry; and (2) that "[b]ased on the above Findings of Fact, the Department proved by a preponderance of the evidence that [Barlow] neglected a child, as neglect is defined by Tex. Fam. Code. Ann. § 261.001(4)." On appeal, the Department contends that substantial evidence supports both of these legal conclusions.

Whether the Department's order was supported by substantial evidence is a question of law. Montgomery Indep. Sch. Dist. v. Davis, 34 S.W.3d 559, 562 (Tex. 2000). The district court's judgment is thus not entitled to deference on appeal. Texas Dep't of Pub. Safety v. Alford, 209 S.W.3d 101, 103 (Tex. 2006) (per curiam). On appeal of that judgment, we consider the same question presented to the district court: whether the Department's order was supported by substantial evidence. See Montgomery, 34 S.W.3d at 562.

The APA authorizes courts to "test the agency's findings, inferences, conclusions, and decisions to determine whether they are reasonably supported by substantial evidence considering the reliable and probative evidence in the record as a whole." Texas Dep't of Pub. Safety v. Latimer, 939 S.W.2d 240, 244 (Tex. App.--Austin 1997, no pet.) (citing Texas Health Facilities Comm'n v. Charter Med.-Dallas, Inc., 665 S.W.2d 446, 452 (Tex. 1984)). We are to presume that the agency decision is supported by substantial evidence, and Barlow has the burden of overcoming that presumption. Granek v. Texas State Bd. of Med. Exam'rs, 172 S.W.3d 761, 778 (Tex. App.--Austin 2005, no pet.) (citing Charter, 665 S.W.2d at 452). We may not substitute our judgment for that of the Department, and may consider only the record on which the agency based its decision. Id.

The crux of a substantial evidence analysis is whether the agency's factual findings are reasonable "in light of the evidence from which they were purportedly inferred." Id. (citing John E. Powers, Agency Adjudications 163 (1990)). Substantial evidence does not mean a large or considerable amount of evidence, but rather such relevant evidence as a reasonable mind might accept as adequate to support a conclusion of fact. Hinkley v. Texas State Bd. of Med. Exam'rs, 140 S.W.3d 737, 743 (Tex. App.--Austin 2004, pet. denied). The evidence in the record may actually preponderate against the agency's decision and nevertheless amount to substantial evidence. Latimer, 939 S.W.3d at 244. The agency determines the meaning, weight, and credibility to assign conflicting evidence, Texas State Bd. of Med. Exam'rs v. Scheffey, 949 S.W.2d 431, 437 (Tex. App.--Austin 1997, pet. denied), and we may not set aside an agency decision because testimony was conflicting or disputed or because it did not compel the agency's decision. Firemen's & Policemen's Civil Serv. Comm'n v. Brinkmeyer, 662 S.W.2d 953, 956 (Tex. 1996). We are ultimately concerned with the reasonableness of the agency's order, not its correctness. See id.

A court reviewing an agency action "shall reverse and remand the cause to the agency when substantial rights of the appellant have been prejudiced by an agency's findings that are not reasonably supported by substantial evidence considering the reliable evidence in the record as a whole." Hinkley, 140 S.W.3d at 743; see Tex. Gov't Code Ann. § 2001.174(2)(E) (West 2004).
We turn first to the Department's conclusion that "[b]ased on the above Findings of Fact, the Department proved by a preponderance of the evidence that [Barlow] neglected a child, as neglect is defined by Tex. Fam. Code. Ann. § 261.001(4)." Family code section 261.001(4) defines "neglect," in relevant part, as "failing to remove a child from a situation that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities and that results in bodily injury or a substantial risk of immediate harm to the child." Tex. Fam. Code Ann. § 261.001(4)(B)(i). Consequently, the Department's finding of neglect requires substantial evidence of four elements: (1) a "situation"; (2) the "situation" is one "that a reasonable person would realize requires judgment or actions beyond the child's level of maturity, physical condition, or mental abilities"; (3) the "situation" results in bodily injury or "a substantial risk of immediate harm" to the child; and (4) the person failed to "remove" the child from the "situation." Regarding these elements, the Department made the following findings of ultimate fact:

18. [Barlow's] failure to remove K.M. and J.L. from a situation in which they shared a bedroom and her failure to immediately insist upon appropriate supervision of K.M exposed these children to substantial risk of immediate harm.
19. A person acting reasonably would have realized that failure to immediately remove K.M. and J.L. from the situation described in Finding 18 placed these children in a situation requiring judgment or actions beyond their level of maturity, physical condition, and mental abilities.
See id. Thus, as reflected in Finding 18, the relevant "situation" found by the Department was (1) J.L. and K.M.'s sharing of a bedroom; and (2) Barlow's "failure to immediately insist upon appropriate supervision of K.M." This situation, in turn, resulted in "substantial risk of immediate harm" to J.L. and K.M., according to the Department. A "substantial" risk denotes one that is "actually existing; real; not seeming or imaginary; not illusive; solid; true; veritable." Black's Law Dictionary 1428 (6th ed. 1990). "Immediate harm" denotes harm resulting "[n]ext in line or relation; directly connected; not secondary or remote" from the "situation." See id. at 749. The term also has temporal connotations, "either instantly or without a considerable loss of time." Id. We have previously equated the statutory term "immediate" with "impending" and "imminent." See Millslagle v. State, 81 S.W.3d 895, 898 (Tex. App.--Austin 2002, no pet.). And "imminent danger," we have observed, means that which is "'ready to take place, near at hand, impending, hanging threateningly over one's head, menacingly near.'" Id. (quoting Elder v. State, 993 S.W.2d 229, 230 (Tex. App.--San Antonio 1999, no pet.) (quoting Devine v. State, 786 S.W.2d 263, 270 (Tex. Crim. App. 1989))). We also noted that "imminent" danger requires more than "a situation that is potentially dangerous." Id. In sum, the Department relies on findings that (1) J.L. and K.M.'s sharing of a bedroom and (2) Barlow's "failure to immediately insist upon appropriate supervision" of K.M. gave rise to an actual, real risk of harm as a direct, temporally proximate result of (1) or (2). As the acts of sharing a bedroom and failure to "insist upon appropriate supervision" do not inherently give rise to a risk of immediate harm, the relevant "harm" underlying Finding 18 must logically be K.M.'s sexualized behaviors. The Department's underlying findings concerning those behaviors are:

12. In July and August 2001, K.M. was eight years old. He was sexually abused as a small child and had observed adults engaging in sexual behavior.
13. By the time he was four years old, K.M. was emulating the sexual behavior to which he had been exposed. Since then he has had an extensive history of sexually acting out.
14. At the time of the incident, K.M.'s sexual acting out had begun to improve; he had been caught sexually acting out only three or four times in the previous year.
While these findings suggest that K.M. could potentially perpetrate sexual acts on other children if he shared a bedroom with J.L. or if Barlow "fail[ed] to immediately insist upon appropriate supervision of K.M." at the time she learned of the sleeping arrangements, they alone fall short of identifying a substantial risk that K.M. would sexually perpetrate as an immediate, direct result of that situation. To the contrary, the Department found that "[a]t the time of the incident, K.M.'s sexual acting out had begun to improve," and that he "had been caught sexually acting out only three or four times in the previous year."

Barlow, other For Children's Sake personnel, and Department representative Penny Massengill did testify to the general understanding among caseworkers that K.M. continued to require continuous line-of-sight supervision when around younger children, and there was some evidence that he did pose a risk of "acting out" that is not fully reflected in the Department's findings. (6) Based on the record as a whole, whatever risk K.M. might have presented existed whenever he was around younger children unsupervised, wherever that might be. The Department's representative, Penny Massengill, admitted that K.M. presented a risk in any room in the house, or even outside, if he was left unsupervised with younger children. Further, Massengill expressed strong doubts that K.M. could be entirely supervised, as a practical matter. Massengill observed that "[i]t is an impossibility to supervise a child 24 hours in a foster home" and said, "I think it was unreasonable for a professional to place foster parents in a situation where they had to allegedly supervise an eight-year-old child 24 hours." Given the risk she believed K.M. presented, Massengill opined, "I don't think the children should've been placed together, first of all." In fact, there is evidence that, following the incident, K.M. was placed in a home with older children, where he would not have any access to younger children.
Massengill and other witnesses also expressed concern with the children's placement in the Barron home in particular. For approximately four years preceding the incident, K.M., his brother J.M., and a sister had been placed in a foster home (the Davis foster home) that had been equipped with monitors or alarms that helped the Davises ensure that K.M. did not enter the rooms of other children while the Davises were asleep at night. The Barron home was not equipped with such devices. Other evidence indicated that For Children's Sake personnel had concerns about the Barrons' capabilities as foster parents, including the quality of their supervision of children. The ALJ appeared to credit this testimony, and further noted evidence that For Children's Sake had "counseled the Barrons and placed certain restrictions on their home." Stephanie Rogers, a For Children's Sake caseworker at the time of the incident, recounted, "My first concern was thinking that the children didn't need to be placed there at all, that it was a mistake to place high risk children with foster parents that we already had concerns about."

The record reflects that K.M., his two siblings, and the four-year-olds, J.L. and A.A., all came to be placed in the Barron home on an emergency, temporary respite basis beginning on July 18, 2001. All five children had been living in the Davis foster home. After K.M.'s sister made abuse allegations (later determined to be unfounded) against one of the Davises, the children were required to be removed pending investigation of the allegations. The five children were placed in the Barron home because it was the only home with room available to accommodate all of the children. The children were kept together, rather than being placed in different homes, to preserve some stability amid the upheaval of being removed from their normal foster home.
It is undisputed that the decision to place K.M. and the other children in the Barron home was controlled by persons other than Ms. Barlow. Perhaps for this reason or others, the Department does not seek action against Barlow for the placement of the children together under the conditions present in the Barron home. We further observe that the Department made no findings, nor did the Department present evidence, concerning whether or how Barlow could have removed K.M. or other children from the Barron home and placed them elsewhere. Although Barlow had a "Level One" child-placing classification with legal authority to place children, see 40 Tex. Admin. Code § 720.36 (2003), the Department never elicited evidence that any relocation options were in fact available or that Barlow's For Children's Sake superiors would allow such a move. Again, it was Barlow's superiors--not her--that approved the placement of the children in the Barron home, and this decision was driven largely by the availability of space to house the children. The record, in short, is silent concerning the choices that Barlow had on August 2, and it was the Department's burden to prove that, in fact, Barlow had choices. (7)

Instead, the Department relies on findings that Barlow failed to "remove" J.L. and K.M. from the "situation" of sharing a bedroom or to "immediately insist upon appropriate supervision of K.M.," and that it was these acts or omissions that "exposed" the children to the "substantial risk of immediate harm" presented by K.M.'s behaviors. Based on the record considered as a whole, there is not substantial evidence to support those findings.

Whatever risk K.M.'s unsupervised behavior presented was not unique to his location when around younger children, and it would have remained even if Barlow had compelled the Barrons to change the sleeping arrangements. As Massengill acknowledged, the risk presented by K.M.'s behaviors would have been present anywhere in the Barron home--or even outside it--if K.M. was left unattended with younger children. In fact, K.M. perpetrated on J.L. after Ms. Barron left K.M. and the other children unattended in the kitchen, during daytime. The Department made no findings explaining the singular significance that it accords to the fact that the children shared a bedroom. (8) In its PFD, the ALJ observed that the incident ultimately occurred in the shared bedroom and offers the brief, oblique comments that "the shared bedroom was also where the children's clothes and personal items were kept. It was where they dressed for the day, and it was presumably a place to which they would naturally gravitate and feel at home. This appears to be what occurred the morning of August 3, 2001." This would seemingly be true of any room in the house where the children enjoyed spending time. Absent further findings regarding exactly how the children came to be in the bedroom at the time of the incident, there is not substantial evidence that the sleeping arrangements exposed the children to any risk not already present in K.M.'s placement in the Barron home.

As for Barlow's "failure to immediately insist upon appropriate supervision of K.M.," the ALJ credited testimony that the Barrons were aware of K.M.'s behaviors and that Barlow and other For Children's Sake personnel had warned them to supervise K.M. constantly when around younger children. Barlow testified that on the evening of July 18, 2001, when she moved the children to the Barron home for respite care, she admonished Ms. Barron that "she could not leave [K.M.] alone with the two four-year-olds." Stephanie Rogers testified that she had delivered clothes for the children later that evening and reiterated to Mr. Barron that due to K.M.'s history, he required constant supervision, could not be left alone with the four-year-olds, and would sexually act out with them if given the opportunity. Rogers recounted that Mr. Barron responded that he had kept K.M. many times for respite care and that he knew about K.M.'s behaviors. The Barrons' prior relationship and knowledge of K.M.'s behaviors was corroborated by evidence of correspondence from Ms. Davis, the regular foster mother, in which she stated that the Barrons had provided respite care for K.M. six or seven times over the last few years and that "they were aware of his behavior." Ms. Barron testified; her husband did not. She professed never to have been given any particular warnings or instruction about K.M.'s behaviors and acknowledged only a vague statement by Mr. Davis, K.M.'s regular foster father, to the effect that K.M. had unspecified "sexual issues." The ALJ, however, dismissed Ms. Barron's testimony as "confused and unpersuasive." Deferring to the fact-finder's assessment of the credibility and weight of the competing testimony regarding supervision, the record establishes that the Barrons were aware of and had experience with K.M.'s behaviors, and had been instructed by Barlow and others not to leave K.M. alone with the four-year-olds.
Massengill, who investigated the incident for the Department, explained that she had found Barlow to be a "designated perpetrator" of "neglect" based on her understanding that the Barrons had never been admonished about K.M.'s tendencies and to never leave him unsupervised with other children. She admitted that if anyone had told her "in a credible way" that the Barrons had been so admonished, they, and not Barlow, would have been found to be the designated perpetrators in the case. Thus, the Department's original basis for justifying its conclusion that Barlow was a "designated perpetrator" is not consistent with the evidence or facts as determined by the ALJ. At this juncture in the proceedings, the Department instead relies entirely on circumstances related to Barlow's August 2 visit to the Barron home to check on the status of the children. Barlow was accompanied by Shelley Church, a new caseworker with For Children's Sake. Barlow testified that this was the first time she had learned of the sleeping arrangements. The Department, as discussed, attributes great significance to the fact that the children were sharing a bedroom but also suggests that this revelation should have signaled to Barlow "an obvious lack of constant supervision."

Substantial evidence does not support a finding that Barlow failed "to immediately insist upon appropriate supervision of K.M." or that it was such a failure that directly and immediately resulted in a substantial risk that K.M. would sexually perpetrate on other children. Having previously admonished the Barrons regarding the need to supervise K.M. around other children, Barlow testified that she questioned Ms. Barron about the sleeping arrangements and obtained assurances that the four-year-olds went to sleep before K.M. went into the room, that K.M. went to sleep before Ms. Barron did, and that Ms. Barron would check on the children several times each night. (9) Consistent with her other "confused and unpersuasive" testimony, Ms. Barron claimed that Barlow said nothing about the sleeping arrangements. If, following this exchange, there remained a substantial risk that K.M. would perpetrate, it was one inherent in the placement itself, in the Barrons' supervisory abilities (as borne out by the events the following morning), in the physical limitation of the home, or in the sheer "impossibility" of constantly supervising K.M. in that environment. There is not substantial evidence that such a risk was an immediate, direct result of any act or omission by Ms. Barlow with respect to her being informed that the children were sharing a bedroom or reiterating to Ms. Barron that K.M. needed supervision.

We conclude that there is not substantial evidence to support the Department's finding of ultimate fact that it was Barlow's "failure to remove K.L. and J.L. from a situation in which they shared a bedroom and her failure to immediately insist upon appropriate supervision of K.M [that] exposed these children to substantial risk of immediate harm." In turn, substantial evidence does not support its legal conclusion that "the Department proved by a preponderance of the evidence that [Barlow] neglected a child, as neglect is defined by Tex. Fam. Code Ann. § 261.001(4)," nor its ultimate order that Barlow's name should be placed on the central registry. As these issues are dispositive, we need not address whether Barlow acted reasonably (10) or whether she constituted a "person traditionally responsible for the care, custody, or welfare of a child" under section 261.001(5) of the family code. (11)

CONCLUSION

As the ALJ observed, "[v]iewed in retrospect, the errors committed by numerous individuals in discharging their duties towards the children involved in this proceeding are both obvious and tragic." While Barlow may be among the numerous individuals whose acts or omissions in connection with this incident, in hindsight, may have adversely impacted the welfare of these children, we cannot conclude that the Department has met its burden to show that there is substantial evidence, based on this record as a whole, that her conduct constituted child neglect under section 261.001(4) of the family code. We accordingly overrule the Department's issues and affirm the judgment of the district court.

_____________________________________________
Bob Pemberton, Justice
Before Justices Patterson, Pemberton and Waldrop;
Dissenting Opinion by Justice Patterson
Affirmed
Filed: June 28, 2007


1. During the pendency of the proceedings below, the agency's name was changed from the Department of Protective and Regulatory Services to the Department of Family and Protective Services. See Act of June 2, 2003, 78th Leg., R.S., ch. 198, §§ 1.27, .29, 2003 Tex. Gen. Laws 641, 642 (effective Feb. 1, 2004). We will use its current name or, simply, "the Department."
2. See Tex. Hum. Res. Code Ann. § 42.041(a) (West 2001) (requirement of license to operate "child-care facility or child-placing agency."). A "child-placing agency" is "a person, including an organization . . . who plans for the placement of or places a child in a child-care facility, agency foster home, agency foster group home, or adoptive home." Id. § 42.002(12) (West 2001).
3. Unless otherwise indicated, our citations to code provisions are to the versions in effect at the time of the events relevant to the Department's proceeding against Barlow.
4. The Department's staff assigns this "role" after making the "summary finding" of "reason-to-believe" that the abuse or neglect occurred. 40 Tex. Admin. Code §§ 700.511(b)(1), .512(b) (2003).
5. Because K.M. was only eight years old, the Department did not investigate the child as an "alleged perpetrator." See 40 Tex. Admin. Code § 700.512(a)(1) (2003).
6. The evidence is disputed concerning the risk K.M. actually presented at the time of the incident. In April 2003, a judge had ordered K.M. to see a sex offender therapist weekly, and there is evidence that his foster parents had failed to meet that obligation and that the Barrons had not taken him to therapy at all. Yet in June 2003, the Department had downgraded K.M.'s level-of-care assessment, as determined by a third-party evaluation, from "Level 4" to "Level 3." As the ALJ explained,
Level 4 requires fairly extensive annual training of foster parents who care for children at this level . . . [and] "written plans for the direct, continuous observation of children who present a moderate risk of suicide or of physical injury to themselves or others." Level 3 provides, rather generally, that it be used for children who require a "higher level of supervision than children need at Level 2" and that all care givers receive support and direction from qualified individuals. Level 2 sets basic requirements for rules designed to improve the child's functioning in a family environment, with extra guidance and discipline to meet the child's needs.
Complicating our examination of the evidence is the ALJ's apparent reliance on evidence regarding K.M.'s behaviors that is contained in the Department's investigative file. The ALJ admitted this file into evidence for the limited purpose of establishing "the contents of the . . . file and for witnesses to refer to as appropriate," but explicitly ruled that "the contents, in and of themselves, are not admitted for the truth of the matters asserted." The PFD reflects that the ALJ cited evidence contained in the investigative file to establish the truth of certain assertions contained in the file regarding K.M's propensities.
Some of this evidence--but not all of it--was admitted without restriction through testimony and Barlow's own exhibits. This includes evidence of the general understanding among For Children's Sake personnel, including Barlow, that K.M. was not to be left unsupervised around younger children due to the risk that he would perpetrate on them. However, these witnesses did not elaborate on the temporal aspect of K.M.'s behavior. Although For Children's Sake caseworker Stephanie Rogers had stated in her testimony that K.M. would perpetrate "quickly" if left unsupervised, she admitted that she had no information that K.M. would in fact "quickly" perpetrate if left unsupervised, that she was relying on information that Barlow or others had told her, that she couldn't confirm that "quickly" was ever used to describe K.M.'s behavior.
As discussed below, there was also evidence of an incident in which Ms. Barron had caught K.M. kissing one of the four-year-olds on the mouth and had discovered that K.M. had occasionally woken up at night and crawled into one of the four-year-old's beds.
7. The ALJ recognized the importance of that question at the conclusion of the hearing:
Some sort of legal questions that occurred to me during the testimony today is . . . what was the authority of Ms. Barlow with respect to taking immediate action when she found out the children . . . were in the same room on August 2 and then, factually, really, . . . what alternatives should she have done at that point, what should have happened.
The ALJ invited the parties to address that question in their written closing arguments. In that filing, the Department never responded to that invitation, other than to urge its arguments, addressed above, regarding the bedroom and whether Barlow instructed the Barrons to supervise K.M.
8. Its underlying findings regarding the role of the bedroom were merely that:
15. During their stay at the Barron home, K.M. shared a bedroom with the two four-year-olds.
16. By August 2, 2001, [Barlow] was aware that K.M. was sharing a bedroom with the two four-year-olds, and she failed to separate them and to insist on more effective supervision of K.M.
9. There was evidence that Barlow was told or had constructive knowledge of an incident four days earlier in which Ms. Barron had caught K.M. kissing one of the four-year-olds on the mouth. Ms. Barron also informed Barlow that she had discovered that K.M. had occasionally woken up at night and crawled into one of the four-year-old's beds, an act that Barlow interpreted as an innocent search for comfort amid the disruption of K.M.'s removal from the Davis home. While perhaps also going to the reasonableness of Barlow's actions, these facts are consistent with Ms. Barron in fact supervising the children and checking on them during the night.
10. The dissent focuses principally on this element. We do not, contrary to the dissent's statements, conclude that "Barlow acted diligently" or reasonably, see Texas Dep't of Family & Protective Servs. v. Barlow, No. 03-05-00469-CV, 2007 Tex. App. LEXIS ______, *3 (Tex. App.--Austin June 28, 2007, no pet. h.) (Patterson, J., dissenting), as we do not even reach that issue.
11. We are grateful for the parties' post-submission briefing on this issue, however.