In re Suarez

1

IN RE ALEJANDRA SUAREZ

No. 13-21-00379-CV

Court of Appeals of Texas, Thirteenth District, Corpus Christi-Edinburg

December 22, 2021

On Petition for Writ of Mandamus.

Before Justices Benavides, Longoria, and Tijerina Memorandum Opinion by Justice Longoria ^[1]

MEMORANDUM OPINION

NORA L. LONGORIA, JUSTICE

On November 2, 2021, relator Alejandra Suarez filed a petition for writ of mandamus seeking to compel the trial court to vacate temporary orders regarding her minor child A.T.T.^[2] See Tex. Fam. Code Ann. § 156.006(b). As further discussed below, we conclude that the record fails to contain evidence that the temporary orders were necessary because A.T.T.'s present circumstances would significantly impair her physical health or emotional development. See id. Accordingly, we conditionally grant the petition for writ of mandamus.

I. Background

This case concerns the possession and custody of minor child, A.T.T., who was approximately two years old at the time of the underlying proceedings. Suarez is A.T.T.'s mother, and real party in interest, Francisco Trevino, is her father. On July 2, 2020, the trial court ordered that all possessory exchanges of A.T.T. between Suarez and Trevino would take place at the San Juan Police Department lobby, that Trevino would have access to A.T.T. on the first, third, and fifth weekends of the month from Friday at 6:00 p.m. until Sunday at 6:00 p.m., and that Trevino would have access to A.T.T. every Wednesday from 9:00 a.m. until 6:00 p.m.

On September 17, 2021, Trevino filed a "Motion to Modify Temporary Orders." The motion references the "most recent order" in the case as having been signed on July 20, 2020; however, that order does not appear in the record. Trevino requested a modification of that order "because the child's present circumstances would significantly impair the child's physical health and/or emotional development." He further alleged that "the current order has become unworkable and inappropriate." Trevino requested the trial court to modify the current order by appointing Trevino as the sole managing conservator and Suarez as the temporary possessory conservator of the child during the pendency of the suit. Trevino supported this motion with his affidavit, in which he averred:

I am deeply concerned and scared for my daughter. Her mother, [Suarez], behaves in a negative and erratic manner effecting [sic] the safety and welfare of my daughter.

At drop[-]off she opens the door and approaches so aggressively it subsequently frightens [A.T.T.] who naturally turns to run into my arms. [Suarez] will then, in a loud[, ] firm voice order me to release [A.T.T.]. I do not agree with walking away from my daughter when she is scared; it would send my daughter the wrong message. If l were to walk away when my daughter is running into my arms, I believe my daughter would misunderstand what is truly happening and fear I won't be there to comfort her or develop some issues with trust and feeling secure.

[Suarez] has become more paranoid, during handoff she uses both a body camera and her phone to record, this whole situation causes more anxiety to a situation I believe my daughter is already picking up on. I believe this is becoming more and more unhealthy for my daughter.

I am also gravely concerned about the environment my daughter is being raised in when she is with her mother. [Suarez's] brother is an alcoholic, who tends to be violent due to the addiction.

She continues her attempts to cut me out of my daughter's life and has confirmed she does not care if [A.T.T.] establishes, builds[, ] and maintains a close relationship with me.

On September 28, 2021, Suarez similarly filed a "Motion to Modify Temporary Orders Regarding Possession and Access; Motion to Enforce Child Support." She alleged that the July 2, 2020 temporary orders had "become unworkable and are no longer in the best interest of [A.T.T.]." She thus requested that the trial court appoint Trevino as "possessory conservator with limited access to the child, prohibiting overnight visitation." She alleged that this modification was "necessary because the child's present circumstances would significantly impair [the child's] physical health and emotional development." Suarez additionally asserted that Trevino had failed to pay her child support in the amount of $6, 837.00 and requested the trial court to enforce payment of the arrearage. Suarez supported this pleading with her affidavit, which states in relevant part:

I fear for the safety and well-being of my daughter [A.T.T.], who is only 25 months old. While I realize that a parent[-]child relationship is important in a child's life, I don't believe it's in the best interest of my daughter to have overnight visitation with her father.

First and foremost, [Trevino] works at night and leaves [A.T.T.] with his 70-year-old mother as caregiver. I feel as her mother, I can better take care of her at nighttime. Further, [Trevino] lacks stability due to his work schedule. Since the temporary orders, [A.T.T.] has come home with a black eye, which [Trevino] claims she hit herself with the baby lotion bottle, and dried nose bleeds without any explanation. I attempt to communicate with [Trevino] as to [A.T.T.'s] well[-]being and all I get from him are nasty comments about my appearance and nothing having to do with [A.T.T.]. In addition, [Trevino] has made false accusations towards me of physical neglect to the Texas Department of Family and Protective Service, which were ruled out. At no time have I neglected my daughter, on the contrary, I'm seeking this modification in my daughter's best interest. Recently, [Trevino] dropped [A.T.T.] off barefoot and tells me that I'm buying her tennis shoes too big. [Trevino] has shown his aggressive behavior not only towards me but to the pediatrician, police officers, child custody evaluator, and the ad litem in this case. Further still, [Trevino] has failed to pay child support since April 2021. I don't understand why this Court changed the Temporary Orders allowing [Trevino] overnight possession and access.

Since the Temporary Orders were changed, [Trevino] has had the opportunity to change to the better, however, now that [A.T.T.] is two, she hides behind me when she sees [Trevino] arrive to pick her up. In addition, [Trevino] changed [A.T.T.'s] pediatrician and he refuses to tell me who he or she is. I don't even know if she's up to date with immunizations because he refuses to tell me. Finally, we also saw Mr. Edward Acosta who abruptly ended the coparenting sessions 'indefinitely' after a private conversation with [Trevino].

Because of [Trevino's] aggressive behavior, I am respectfully requesting this Court to deny [Trevino] overnight possession and access of our daughter [A.T.T.].

I fear for my daughter's physical and mental well-being while in [Trevino's] possession.

The trial court held evidentiary hearings on the foregoing motions on September 29, 2021, and October 7, 2021. On October 8, 2021, the trial court issued a ruling (1) naming Trevino as temporary joint managing conservator with the right to determine A.T.T.'s residence, (2) naming Suarez as temporary joint managing conservator with the right to possession and access to A.T.T. in accordance with the extended standard possession order, (3) ordering no child support "at this time," and (4) ordering Trevino to pay Suarez the unpaid child support within sixty days.

This original proceeding ensued. By one issue, Suarez asserts: "In evaluating evidence presented during a hearing on temporary orders, Respondent erred by abusing its discretion and modifying the current conservatorship of A.A.T., a child, as well as possession and access for A.A.T., a child."^[3] This Court requested and received a response to the petition for writ of mandamus from Trevino. Trevino asserts (1) that the order does not create a designation or change the designation of the person who has the exclusive right to designate the primary residence of the child, "or the effect of creating a geographic area, or changing or eliminating the geographic area, within which a conservator must maintain the child's primary residence"; (2) given the record evidence, the trial court did not abuse its discretion in rendering its order; and (3) given the failure to request findings of fact and conclusions of law, the trial court exercised its discretion appropriately in determining the credibility of the witnesses.

II. Standard of Review

"Mandamus relief is an extraordinary remedy requiring the relator to show that (1) the trial court clearly abused its discretion and (2) the relator lacks an adequate remedy on appeal." In re Acad., Ltd., 625 S.W.3d 19, 25 (Tex. 2021) (orig. proceeding); see In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36, 138 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

A trial court abuses its discretion if it reaches a decision that is so arbitrary and unreasonable as to constitute a clear and prejudicial error of law or if it fails to correctly analyze or apply the law. See In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 839-40. When reviewing the trial court's decision for an abuse of discretion, we may not substitute our judgment for that of the trial court with respect to resolution of factual issues or matters committed to the trial court's discretion. Walker, 827 S.W.2d at 839. However, we are "much less deferential" when we review the trial court's determination of the legal principles controlling its ruling. Id. at 840.

Because a trial court's temporary orders are not appealable mandamus is an appropriate vehicle for review. See In re...