Stary v. Ethridge

695 S.W.3d 417

Christine Lenore STARY, Appellant

v.Brady Neal ETHRIDGE, Appellee

NO. 01-21-00101-CV

Court of Appeals of Texas, Houston (1st Dist.).

Opinion issued December 15, 2022

On Appeal from the 280th District Court, Harris County, Texas, Trial Court Case No. 2020-16834

Holly Draper, Shailey Gupta-Brietzke, Samantha Mori, for Appellant.

Alice J. O’Neill, Carolyn Cook Robertson, Houston, Dana Burket, for Appellee.

Panel consists of Chief Justice Radack and Justices Countiss and Farris.

OPINION

Sherry Radack, Chief Justice

Appellant Christine Lenore Stary appeals from the trial court’s order granting a lifetime family-violence protective order prohibiting her from communicating with or going near her three minor children. In four issues, Stary argues that: (1) the trial court violated her right to due process by granting a lifetime protective order based only on proof by a preponderance of the evidence rather than by the heightened standard of proof by clear and convincing evidence; (2) the trial court violated her right to due process by granting the protective order for a period exceeding two years on the basis of an unadjudicated felony charge without applying a heightened burden of proof; (3) the evidence is insufficient to support the trial court’s findings that she committed family violence and is likely to commit family violence in the future; and (4) the trial court abused its discretion by excluding evidence of appellee Brady Neal Ethridge’s domestic abuse of her and denying her request to make an offer of proof. We affirm.

BACKGROUND

Stary and Ethridge divorced in May 2018. Pursuant to an agreed divorce decree, the parties share custody of their three children: C.M.E. ("Cindy"), who was fifteen years old the time of the hearing; O.P.E. ("Naomi"), who was twelve years old at the time; and G.B.E. ("George"), who was nine years old.¹ Ethridge has possession of the children on Mondays and Tuesdays, Stary has possession of them on Wednesdays and Thursdays, and the parties alternate possession on weekends and holidays. After the parties’ divorce, Ethridge remarried.

In March 2020, Ethridge filed an application for a protective order, alleging that Stary had committed acts of family violence and abuse against each of the children.² The application requested that the trial court enter a temporary ex parte order and a final protective order prohibiting Stary from committing family violence against the children, communicating directly with them, or going anywhere near them. The application also requested that Stary "complete a battering intervention and prevention program or counseling" and pay support for the children. Ethridge requested that the application remain effective longer than two years because Stary’s actions towards the children allegedly constituted a felony offense involving family violence.

Ethridge attached several exhibits to the application, including the parties’ agreed final divorce decree and documents from a criminal proceeding pending against Stary for injury to a child. Ethridge also attached a magistrate’s order for emergency protection entered in the criminal proceeding, which prohibited Stary from committing further acts of family violence or communicating with the family in a threatening or harassing manner, among other things. Ethridge also attached an order for pretrial supervision and bond conditions entered in the criminal proceeding, which prohibited Stary from having any contact with the children as a condition of her release on bond. Evidence admitted at trial showed that this condition was later amended to allow Stary supervised visits with the children.

The trial court signed a temporary ex parte protective order prohibiting Stary from committing family violence, communicating with the children except through their attorney, and going near their residence, schools, childcare facilities, and any other place where they are known to be. The order also scheduled a hearing on Ethridge’s application for a protective order.

At the hearing, the parties appeared and were represented by counsel. Ethridge testified about several specific incidents during which Stary had hit, scratched, and otherwise caused physical injury to the children on multiple occasions. One incident occurred in March 2020, shortly before the application was filed. While the children were staying with Stary, she "grabbed [George] by the back of the head and beat his face on the hardwood floor and carpet," causing bruises, scratches, and bleeding that required emergency hospital treatment. George was taken to the emergency room and treated for his injuries. Stary was arrested and indicted for the third-degree felony offense of injury to a child. See Tex Penal Code § 22.04(a)(3), (f). The criminal proceeding was still pending at the time of the hearing.

Ethridge also testified that Stary had elbowed Cindy in the ribs, dragged her out of bed and across the floor by her hair, and kicked her out of the car during a road trip to Colorado and left her on the side of the road. She fractured Naomi’s wrist, chased her down the street with hedge clippers, and locked her—as well as George on separate occasions—on the front porch at night and made her sleep outside.

Ethridge acknowledged that he was not present during these incidents but had learned about them from his children. Over Stary’s objections, the trial court allowed Ethridge to testify about what the children had told him happened during these incidents.

Ethridge also testified that it was not unusual to receive urgent telephone calls from the children while they were with Stary. He also testified that Stary had been reported to child protective services at least five times. The trial court admitted into evidence the parties’ final divorce decree; Stary’s felony indictment for injury to a child; an emergency protective order entered in the criminal proceeding; George’s medical and ambulance records from the March 2020 incident; and photos of George’s injuries from this incident.

After Ethridge testified, Ethridge’s counsel reminded the court of his motion requesting that the court interview the children. The trial court granted the motion, and the hearing was continued. When the hearing resumed nearly a month later, the trial court stated that it had interviewed each of the children but did not reveal any details of the interviews. The trial court stated that the children’s amicus attorney was the only person present in chambers with the judge and the children during the interview.

As her first witness, Stary called the parent of a student whom Stary taught as a kindergarten teacher. The parent testified generally about Stary’s character and reputation for being a firm but gentle, nonviolent disciplinarian.

Stary also testified.³ She denied ever harming the children or committing family violence. She gave excuses for the children’s injuries, such as the children fighting with each other or running carelessly through the house. Her counsel attempted to ask her questions about Ethridge physically abusing her, but the trial court sustained relevancy objections to the testimony and denied Stary’s request to make an offer of proof. Stary had attempted to ask Ethridge similar questions on cross-examination, and the trial court had also sustained objections to those questions.

At the end of the hearing, the trial court orally granted the protective order. The trial court ordered Stary not to have any contact with the children, stating that the order would remain in effect "in permanent duration for [Stary’s] lifetime" subject to the children filing a motion to modify the order. The trial court also ordered Ethridge to keep the children in counseling, and it stated that the counselor should "make the decision on when the children might be ready to start reunification, or kind of, building back the relationship with [Stary]."

The trial court subsequently entered a written, final protective order. The order included findings that Ethridge, Stary, and the three children are members of the same family; family violence has occurred and is likely to occur in the future; and that Stary’s actions against at least one of the children would constitute a felony if charged. The order prohibited Stary from communicating with the children except through their attorney or counselor, engaging in harassing or annoying conduct toward the children, and going near their known location, residence, schools, and childcare facilities. Stary was ordered to submit to a psychological evaluation and complete a course on domestic violence and children. The order assessed Eth- ridge’s attorney’s fees against Stary and ordered each party to pay half of the attorney’s fees for the children’s amicus attorney. Based on the finding that Stary’s actions specifically towards George would constitute a felony, the order stated that it "shall remain permanently in full force and effect until such time as this order may be vacated or modified."

Stary filed a request for findings of fact and conclusions of law. The record does not include a ruling on this request.

Stary also filed a combined motion for new trial and motion to modify, correct, or reform the judgment. She argued that Ethridge was the only witness to testify at the hearing, but he was not present for and had no personal knowledge of any of the incidents of family violence that he testified about. She further argued that his testimony was based solely on inadmissible hearsay. She challenged the legal and factual sufficiency of the evidence supporting the order. She argued that the trial court improperly excluded evidence about Ethridge’s domestic violence. Finally, she argued that the indefinite protective order "is tantamount to a termination of parental rights of [Stary]." The trial court entered a written order denying the motion for new trial. This appeal followed.⁴

Due Process

In her first two issues, Stary complains about the standard of...