ACCEPTED
14-15-00028-CV
FOURTEENTH COURT OF APPEALS
HOUSTON, TEXAS
4/7/2015 4:26:25 PM
CHRISTOPHER PRINE
CLERK
NO. 14-15-00028-CV
FILED IN
14th COURT OF APPEALS
IN THE FOURTEENTH COURT OF APPEALS,HOUSTON, TEXAS
HOUSTON, TEXAS 4/7/2015 4:26:25 PM
CHRISTOPHER A. PRINE
Clerk
MICHAEL JUSTIN JACOBS,
Appellant
v.
ADANA ALT,
Appellee
On Appeal from the 395th District Court
Williamson County, Texas
Trial Court Cause No. 10-0968-F395
BRIEF OF APPELLANT MICHAEL JUSTIN JACOBS
Paige Frankenberry
State Bar No. 24074226
FRANKENBERRY LAW FIRM
4425 S. Mopac Expy, Suite 105
Austin, Texas 78735
(512) 252-9937 Telephone
(512) 852-5937 Facsimile
paige@frankenberrylaw.com
ATTORNEY FOR APPELLANT
MICHAEL JUSTIN JACOBS
APPELLANT REQUESTS ORAL ARGUMENT
IDENTITY OF PARTIES AND COUNSEL
The following information is provided pursuant to Rule 38.1(a) of the
Texas Rules of Appellate Procedure and for this Court to determine issues of
disqualification and recusal under Rule 16 of the Texas Rules of Appellate
Procedure:
APPELLANT COUNSEL FOR APPELLANT
Michael Justin Jacobs Paige Frankenberry
FRANKENBERRY LAW FIRM
4425 S. Mopac Expy, Suite 105
Austin, Texas 78735
(512) 252-9937 Telephone
(512) 852-5937 Facsimile
paige@frankenberrylaw.com
Appellate and Trial Counsel
Ryan S. Dougay
1607 Nueces
Austin, Texas 78701
(512) 469-0092 Telephone
Trial Counsel through September 2012
James Winegardner
1711 Grassy Creek Dr.
Allen, Texas 75002
(817) 253-0957 Telephone
Trial Counsel through March 2011
APPELLEE COUNSEL FOR APPELLEE
Adana Alt Robert D. Ettinger
P.O. Box 50323
Austin, Texas, 78763
robert@ettlaw.com
(512) 478-4754 Telephone
(512) 478-9542 Facsimile
Appellate and Trial Counsel
ii
TABLE OF CONTENTS
Page
REQUEST FOR ORAL ARGUMENT ............................................................... cover
IDENTITY OF PARTIES AND COUNSEL ............................................................. ii
TABLE OF CONTENTS ..........................................................................................iii
INDEX OF AUTHORITIES ............................................................................... iv-vii
STATEMENT OF THE CASE ........................................................................... viii-x
ISSUES PRESENTED .............................................................................................. xi
STATEMENT OF FACTS ......................................................................................... 1
A. BACKGROUND AND DEFAULT HEARING .............................................................. 1
B. SUBSEQUENT LITIGATION AND BILL OF REVIEW .................................................. 3
C. REGISTERED PEDOPHILIA SEX-OFFENDER UNCLE GILBEY ENTERS THE PICTURE 4
D. UNDOING THE DEFAULT HEARING, SORT OF ....................................................... 6
E. THE GAME CHANGER: PLAYING PRINCESS TAG WITH UNCLE GILBEY ................ 9
F. POST-TRIAL MOTIONS ....................................................................................... 20
SUMMARY OF THE ARGUMENT ....................................................................... 21
STANDARDS OF REVIEW ................................................................................... 24
A. ABUSE OF DISCRETION ...................................................................................... 24
B. LEGAL SUFFICIENCY .......................................................................................... 25
C. FACTUAL SUFFICIENCY ...................................................................................... 26
D. DE NOVO ........................................................................................................... 27
ARGUMENT AND AUTHORITIES ...................................................................... 28
ISSUE I . VICARIOUS CONSENT ............................................................................... 28
ISSUE II. PSYCHOLOGICAL EXAMINATION .............................................................. 36
ISSUE III. CONSERVATORSHIP ................................................................................ 41
ISSUE IV. NO ORIGINAL ORDER TO MODIFY .......................................................... 61
PRAYER .................................................................................................................. 62
CERTIFICATE OF SERVICE ................................................................................. 63
CERTIFICATE OF COMPLIANCE ....................................................................... 64
APPENDIX .............................................................................................................. 65
iii
INDEX OF AUTHORITIES
Page
CASES
Alameda v. State, 181 S.W.3d 772 (Tex.App.—Fort Worth 2005) ........................31
Alameda v. State, 235 S.W.3d 218 (Tex. Crim. App. 2007) ...................................31
Allen v. Mancini, 170 S.W.3d 167 (Tex.App.-Eastland 2005, pet. denied) ............30
Cain v. Bain, 709 S.W.2d 175 (Tex.1986) (per curiam). ........................................26
City of Keller v. Wilson, 168 S.W.3d 802 (Tex.2005).............................................25
Collins v. Collins, 904 S.W.2d 792 (Tex.App.-Houston [1st Dist.] 1995)..............31
CTTI Priesmeyer, Inc. v. K & O Ltd. P'ship, 164 S.W.3d 675 (Tex.App.-Austin
2005, no pet.) .......................................................................................................26
Doe v. Franklin, 930 S.W.2d 921 (Tex.App.-El Paso 1996, no writ) .....................48
Dow Chemical Co. V. Francis, 46 S.W.3d 237 (Tex. 2001). ..................................26
Fitzgerald v. Advanced Spine Fixation Sys., Inc., 996 S.W.2d 864 (Tex. 1999)
(citations omitted) ................................................................................................40
Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982)................................................24
Golden Eagle Archery, Inc. v. Jackson, 116 S.W.3d 757 (Tex. 2003) ...................27
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) .................................................42, 58
In re A.A.M., No. 14-05-00740-CV, 2007 WL 1558701 (Tex. App.--Houston [14th
Dist.] May 31, 2007, no pet.) (mem. op.) ............................................................45
In re A.L.E., 279 S.W.3d 424 (Tex. App.-Houston [14th Dist.] 2009, no pet.) .......44
In re A.V., 113 S.W.3d 355 (Tex.2003) (citations omitted) .....................................43
In re C.A.M.M., 243 S.W.3d 211, 216 (Tex. App.-Houston [14th Dist.] 2007, pet.
denied) ..................................................................................................................44
In re H.A.P., No. 11–05–00180–CV, 2006 WL 648312 (Tex.App. – Eastland
iv
March 16, 2006, no pet.) (mem. op.) ...................................................................48
In re J.I.O., No. 11-05-00369-CV 2007 WL 1644579 (Tex.App.-Eastland June 7,
2007, no pet.) (mem. op.) .....................................................................................48
In re J.K., No. 09-10-00226-CV, 2011 WL 2119770 (Tex.App.-Beaumont May 19,
2011, no pet.) (mem. op.). ....................................................................................45
In re K.B., No. 03–09–00366–CV, 2010 WL 5019368 (Tex.App.-Austin Dec. 9,
2010, no pet.) (mem.op.) ......................................................................................45
In re Kubankin, 257 S.W.3d 852 (Tex.App.-Waco 2008, orig. proceeding) (per
curiam) .................................................................................................................50
In re L.C., 145 S.W.3d 790 (Tex.App.-Texarkana 2004, no pet.) ...........................47
In re L.C.L., 396 S.W.3d 712 (Tex. App.-Dallas 2013, no pet.). .............................45
In re L.M.M., No. 03-04-00452-CV, 2005 WL 2094758 (Tex.App.-Austin 2005, no
pet.) (mem. op.) (citations omitted) .....................................................................45
In re R.D., 955 S.W.2d 364, 367 (Tex. App.-San Antonio 1997, pet. denied)
(citation omitted) ..................................................................................................46
In re S.E.K., 294 S.W.3d 926, 928 (Tex. App.-Dallas 2009, pet. denied) ...............44
In re S.N., 272 S.W.3d 45 (Tex. App.-Waco 2008, no pet.) ....................................48
In re T.D.L., No. 02-05-00250-CV, 2006 WL 302126 (Tex. App.-Fort Worth, Feb.
9, 2006, no pet.) (mem. op.) .................................................................................48
In re T.N.C., No. 13-11-00305-CV, 2011 WL 5282679 (Tex. App.-Corpus Christi
Nov. 3, 2011, no pet.) (mem. op.) ........................................................................45
In re V.L.K., 24 S.W.3d 338 (Tex. 2000) ...........................................................42, 44
Isaacson v. Isaacson, No. CIV-10-678-M (W.D. Okla. Apr. 6, 2011) ...................28
Jackson v. Axelrad, 221 S.W.3d 650, (Tex. 2007) ..................................................34
Johnson v. Johnson, 804 S.W.2d 296 (Tex.App.-Houston [1st Dist.] 1991, no writ)
..............................................................................................................................48
v
Kittman v. Miller, No. 12-13-00097-CV 2013 WL 4680575 (Tex. App. – Tyler
Aug. 29, 2013, pet. denied) (mem. op.) ...............................................................36
K-Mart Corp. v. Honeycutt, 24 S.W.3d 357 (Tex. 2000) ........................................24
Lenz v. Lenz, 79 S.W.3d 10 (Tex.2002) .............................................................42, 58
McCraw v. Maris, 828 S.W.2d 756 (Tex.1992). .....................................................41
McDonald v. Dankworth, 212 S.W.3d 336 (Tex.App.-Austin 2006, no pet.)...........25
Nationwide Ins. Co. v. Elchehimi, 249 S.W.3d 430 (Tex. 2008) ............................40
Pollock v. Pollock, 154 F.3d 601 (6th Cir.1998) .....................................................29
Saavedra v. Schmidt, 96 S.W.3d 533 (Tex.App.-Austin 2002, no pet.) ..................42
Shook v. Walden, 304 S.W.3d 910, 916-17 (Tex.App.-Austin 2010, no pet.)
(citations omitted) ................................................................................................27
State v. Heal, 917 S.W.2d 6 (Tex.1996) ..................................................................27
Sylvia v. Tex. Dep’t of Family and Protective Servs., No. 03-09-00427-CV 2010
WL 1507827 *13 (Tex. App.–Austin Apr. 15, 2010, no pet. h.) (mem. op.) .......44
Thompson v. Dulaney, 838 F.Supp. 1535 (D.Utah 1993) .......................................28
Ussery v. State, 03-07-00116-CR, 2008 WL 269439 (Tex. App.–Austin, Jan. 30,
2008, pet. ref’d) (mem.op., not designated for publication) ................................28
Van Heerden v. Van Heerden, 321 S.W.3d 869 (Tex. App.-Houston [14th Dist.]
2010, no pet.) .......................................................................................................41
Wagner v. Wagner, 64 F.Supp.2d 895 (D.Minn.1999) ...........................................28
Weaver v. State, No. 10-06-00326-CR, 2007 WL 4157237 (Tex. App.–Waco Nov.
21, 2007, pet. denied) (mem.op., not designated for publication) .......................28
Wichita County v. Hart, 917 SW2d 779 (Tex.1996) ...............................................34
Williams v. Willaims, 150 S.W.3d 436 (Tex. App.-Austin 2004, pet. denied) ........47
Zeifman v. Michels, 212 S.W.3d 582 (Tex. App.-Austin 2006, pet. denied) ..........24
vi
STATUTES
18 U.S.C. § 2511(2)(d) ............................................................................................28
Tex. Fam. Code § 153.001(a) ............................................................................42, 43
Tex. Fam. Code § 153.004 ......................................................................................42
Tex. Fam. Code § 153.132 ......................................................................................50
Tex. Fam. Code § 161(D), (E) .................................................................................46
Tex. Fam. Code § 32.005 ........................................................................................39
Tex. Fam. Code Ann. § 153.002 ..............................................................................58
Tex. Pen. Code §16.02(c)(4)(B) ..............................................................................28
Tex. Pract. & Civ. Rem Code § 123.001(2) ............................................................28
Tex. R. Civ. Pro § 329b(f) .......................................................................................61
OTHER AUTHORITIES
McAlinden, Anne-Marie. ‘Setting’Em Up’: Personal, Familial and
Institutional Grooming in the Sexual Abuse of Children.
Social & Legal Studies 15.3 (2006): 339-362. .................................................. Tab F
Samantha Craven , Sarah Brown & Elizabeth Gilchrist (2006) Sexual grooming of
children: Review of literature and theoretical considerations. Journal of Sexual
Aggression. 12:3, 287-299. ...............................................................................Tab G
Smith, Daniel W., et al. Delay in disclosure of childhood rape: Results from a
national survey. Child abuse & neglect 24.2 (2000): 273-287..........................Tab H
vii
NO. 14-15-00028-CV
IN THE FOURTEENTH COURT OF APPEALS,
HOUSTON, TEXAS
MICHAEL JUSTIN JACOBS,
Appellant
v.
ADANA ALT,
Appellee
BRIEF OF APPELLANT MICHAEL JUSTIN JACOBS
TO THE HONORABLE COURT OF APPEALS:
Michael Justin Jacobs, Appellant in this Court, respectfully submits his brief
in support of his appeal from an “Order in Suit to Modify Parent-Child
Relationship” signed by the trial court on August 29, 2014, that was four and one-
half years in the making.
STATEMENT OF THE CASE
This appeal arises from an April 2010 suit originally filed by Appellee
Adana Alt (“Adana”) requesting that the trial court adjudicate parentage and enter
an order that included parenting plan provisions. (CR 8-10). Appellant, Michael
viii
“Justin” Jacobs, is the father of the parties’ five year-old daughter, the subject of
the suit, and Justin properly answered the suit. (CR 11-12). The parties agreed to
visitation and child support without formal temporary orders.
In April 2011, a default judgment was entered against Justin that was
subsequently overturned by a Bill of Review in October of 2013 due to Justin’s
lack of notice of the final hearing. (CR 17-44, 224). Nonetheless, the trial court
proceeded on a motion to modify that Justin’s former attorney had filed after the
default judgment. (3RR 98:20-25).
Following a contested injunction hearing in May 2013 (before the Bill of
Review was granted), the trial court granted Justin’s request to enjoin Adana from
allowing the parties’ then four-year-old child to be within 500 feet of Adana’s
brother, a registered sex offender and convicted pedophile who was on the verge of
being released from prison. (CR 159-160).
After a bench trial on Temporary Orders in October 2013, the trial court
rendered a final order in a February 2014 letter to counsel without a final hearing
(CR 252-53). The parties were appointed Joint Managing Conservators with Adana
being granted all Texas Family Code § 153.132 rights, and the trial court ordered a
permanent injunction on the child being within 500 feet of Adana’s brother. (CR
252-53).
Before the trial court’s final order was entered, the child made an outcry to
ix
her father and Child Protective Services that she had been playing a “touch” game
with her registered sex offender and pedophile uncle in violation of the trial court’s
injunction. Justin filed requests to re-open evidence, for immediate possession of
the child, for the right to determine the primary residence of the child and other
Section 153.132 rights, and for supervised, or otherwise restricted, access for
Adana. (Suppl CR __). After three hearings and nearly four months in Justin’s
custody, the trial court returned the child to Adana as the primary custodian. (CR
291-322). This appeal follows.
x
ISSUES PRESENTED FOR REVIEW
ISSUE I.
Did the trial court err (or alternatively abuse its discretion) by
excluding a recorded telephone call obtained by vicarious consent due to
father’s good-faith, objectively reasonable belief that recording the call was in
the child’s best interest because the mother was continuing to violate
protective injunctions and coach the child to deny the mother’s violations?
ISSUE II.
Did the trail court err (or alternatively abuse its discretion) in excluding
expert testimony that the child was afraid of her uncle, a convicted pedophile,
when the evidence was permissibly obtained.
ISSUE III.
Did the trial court err (or alternatively abuse its discretion) by
designating the mother as the parent with the exclusive right to designate the
child’s residence, by granting the mother other exclusive rights, and by
allowing the mother to have unsupervised possession of the child where the
evidence was legally and factually insufficient to support that such findings
and orders were in the best interest of the child?
ISSUE IV.
Is a judgment on a modification void where the evidence is legally and
factually insufficient to show that an original order existed to modify?
xi
STATEMENT OF FACTS
A. Background and Default Hearing
Justin and Adana began dating when Justin was twenty-one and Adana was
in her early thirties after they met through Justin’s sister. After a couple of years of
dating, their daughter was born in March 2009. When their daughter was one
month old, the couple moved from Adana’s mother’s and step-father’s home in
Liberty Hill, Texas, to a home Justin’s mother helped Justin purchase in Granbury,
Texas. (3RR 68:17-23) Justin found employment as a commission-only life
insurance salesman after the move. (3RR 79:14-16).
A week after the child’s first birthday in March 2010, Adna’s mother and
step-father, Nancy and Luis Buitron, arrived in Granbury for a visit. (4RR 32:10-
12). Within hours of the Buitrons’ arrival, Adana’s mother announced to Justin that
Adana needed a temporary hiatus from their relationship, so Adana and the child
would be accompanying the Buitrons’ back to their home in Liberty Hill that day.
(4RR 32:10-12). Less than two weeks later, Adana filed a “Petition to Adjudicate
Parentage” in Williamson County and included a request for the court to set out a
parenting plan. (CR 8-10). Justin hired a local Granbury attorney who responded to
the suit. (CR 11-12). Counsel for the parties negotiated a series of agreements
regarding Justin’s visitation and child support in lieu of adjudicating Temporary
1
Orders. (3RR 63:6-9, 127:11-12, 145:15-19).
Justin’s employment became untenable in late 2010 when the insurance
company he worked for charged back to him several thousand dollars in
commission many months after the original sale date, which meant Justin would
not be paid commission on future sales until the charge-back was satisfied. (3RR
80:1-25). Justin’s counsel filed a withdraw motion on January 18, 2011 after Justin
told him that he would not have the resources for afford further representation at
that time. (CR 13-14). On February 25, 2011, Adana’s counsel set the matter for a
final hearing on April 27, 2011, and notified Justin’s withdrawing counsel of same.
(Suppl 3RR 3). Justin’s attorney failed to notify Justin a final hearing had been set
before withdrawing in March 2011, and a default judgment was entered at the
April hearing in favor of Adana for all relief she requested. (CR 17, 224). The
parties were appointed Joint Managing Conservators of the child with Adana
named as the parent with the exclusive right to determine the child’s primary
residence and the exclusive right to determine all other Texas Family Code Section
153.132 rights. (CR 17). The trial court set Justin’s child support obligation based
on Adana’s testimony that Justin had earned $3,900 per month gross resources a
year earlier when the parties’ separated.1 (Suppl 2RR 11:1-3). On the date of the
1
Although, Justin’s tax returns through 2011 do not demonstrate an income for any year
greater than $2,280 per month. (3RR 76:16-77:2,79:8-10, 7RR 134-135).
2
default hearing, Justin had just begun working a mile over the Texas border at a
nuclear power plant in New Mexico making $500 per week. (3RR 81:1-11).
B. Subsequent Litigation and Bill of Review
Within weeks of the default judgment, a steel beam fell on Justin while
working at the power plant. (3RR 81:12-15). He recuperated in Lubbock where his
extended family lives. (3RR 82:11-15). Within a few weeks of healing from the
injury, Justin suffered six ischemic strokes and more than one hundred transient
ischemic strokes. (3RR 82:11-20, 83:10-19). After discharge from nearly a month
in the hospital, the doctors ordered him to forgo physical exertion and driving for
several months due to the high risk of recurrence. (3RR 84:2-25, 85:1-7). Justin
remained in Lubbock and re-enrolled in college during this period of limbo to gain
credits toward a paramedic degree. (3RR 86:1-16).
Also during this period of time, Justin contacted an attorney to learn what
remedies were available to overturn the default judgment or otherwise reduce child
support that he could not afford. Justin’s new attorney filed a suit for modification
in November 2011, which was followed by a child support enforcement action by
Adana. (CR 45, 82). Justin sought new counsel after he felt pressured by his
counsel to settle both the temporary orders on the modification and the
enforcement suit, both at the same child support obligation rate (save for three
3
months) that was ordered in his absence at the default hearing.2 (CR 89, 56).
In late summer of 2012, when the child was three years old, apparently
Adana began taking the child to a young, licensed clinical social worker named
Lauren Scott.3
After a review of Justin’s files, current counsel filed a Bill of Review on
Justin’s behalf in March of 2013. (CR 94).
C. Registered Pedophilia Sex-Offender Uncle Gilbey enters the picture
While the Bill of Review was pending, Justin asked Adana to agree through
counsel that the parties’ daughter would not be in the presence of Adana’s brother
who was on the verge of being released from a nine-year prison sentence. (2RR
10:19-23). Adana’s brother, Gilberto Buitron, known to his nieces and nephews as
“Uncle Gilbey,” is a lifetime registered sex offender who was convicted of
aggravated sexual assault of a child on December 18, 1997.4 (4RR 14:7-8, 17:19-
21; 2RR 10:7-10). Seven years later and still on parole for his first offense, Mr.
2
Justin was told that by his former counsel that he would likely fare worse or be put in
jail if the parenting plan or child support matters were heard by the trial court, and that, therefore,
Justin just needed to agree to the orders being offered by opposing counsel even though Justin
felt the terms were as inequitable as the terms contain in the default hearing order. (3RR 103:13-
20).
3
It is unknown whether Ms. Scott was licensed at the time the child began seeing this
counselor or if she practiced under the supervision of another practitioner at the ministry where
she is employed. (4RR 53:4-5).
4
The offense date was March 10, 1997. (2RR 42:2-3).
4
Buitron was found to be in possession of one or more child pornography videos on
his personal laptop computer on January 13, 2005. (2RR 10:2-6, 29, 30:7-12). Both
offenses occurred while Mr. Buitron was living at home with his parents, Adana’s
mother and step-father, where he currently resides. (2RR 29:2-7, 11:7-8).
Because Adana and the Buitron family have repeatedly denied that Mr.
Buitron is a pedophile, they believe he presents no risk of harm to children. (2RR
12:24-25, 21:1-3, 24-25, 34:4-12, 35:1-3; 4RR 83:7-12). Adana has described her
brother’s aggravated sexual assault of a child as a fun, innocuous, and victimless
“circle jerk” with youths in the community. (4RR 82:20 – 83:12). Thus, Adana
refused to agree to an order prohibiting the child to be in the presence of Uncle
Gilbey–even after the trial court telegraphed its intent by granting a Temporary
Restraining Order before Mr. Buitron’s release. (2RR 9:16-18). Instead, Adana
appeared with her mother at the injunction hearing to implore the trial court to
allow the parties’ then 4 year-old daughter to enjoy the company of Uncle Gilbey.
(2RR). Adana’s counsel even suggested that the child could not have a “happy
Christmas” without her and Uncle Gilbey being together. (2RR 7:19-25, 8:1).
When Adana was asked during the May 2013 injunction hearing why she
beleived it was a good idea for the child to be around her brother, she replied,
“Because he’s my brother, regardless… I don’t see that there is going to be a risk
there.” (2RR 12:20-25). Adana also said, when asked on direct examination, that
5
she would be perfectly willing to abdicate her responsibility to protect her child
from her pedophile-brother to her step-father, her sister, or the mother who
physically assaulted and battered Adana when Adana was herself a minor.5 (2RR
13:10-20, 14:3-12, 15:12-17; 6RR 59:5-10). Adana and her parents did not want to
be inconvenienced by excluding Uncle Gilbey, especially during birthdays,
holidays, and other family events, just because “the family” consists of both young
children and a convicted pedophile. (2RR 6:7-10, 16:15-17, 28:7-11, 39:13-14).
The trial court granted Justin’s request for the injunction stating that the
court was there to protect the child from this “child molester,” not make sure that
he had “a happy family reunion” after release from prison. (2RR 41:7-8, 43:8-10,
25, 44:1-4).
In June 2013, the counselor Adana had taken the child to wrote Adana’s
counsel a letter stating that the child was not attached to Justin because Justin was
“not present for the first few months of her life,” which are “critical” for
attachment development, but that the child was securely attached to her mother and
grandmother, to which the counselor could “testify.” (7RR 155).
D. Undoing the Default Hearing, Sort Of
The trial court granted Justin’s Bill of Review in a letter to counsel on
5
Adana wholly contradicted her willingness to rely on others to protect her child from a
pedophile when her own counsel subsequently prompted the opposite response on cross-
examination with a leading question. (2RR 17:5-7).
6
October 15, 2013, owing to Justin’s lack of notice of the final hearing in 2011. (CR
224). Rather than wiping the slate clean, the trial court let stand the parties’
modification temporary orders and enforcement settlement, both of which were
agreed to after the default judgment but prior to the filing, or granting, of the Bill
of Review. (CR 224, 252-53).6 7
In a bench trial the following week, the trial court considered testimony
regarding Justin’s historical earnings to redress some of Justin’s past, and future,
child support obligation as well as testimony regarding Justin’s visitation travel
costs and work schedule. (3RR). Justin also requested a geographic restriction on
the child’s residence. In the same hearing, the trial court considered Adana’s
motion for enforcement on the above-guideline child support obligation that Justin
had never been able to afford. (3RR).
Adana testified that Justin was capable of earning more money during the
time the couple lived together in Granbury (from April 2009-April 2010), but that
his income was limited by his monthly (more or less) binge drinking. (3RR 134:4-
21). Despite this assertion, Adana had not requested that Justin’s visitation be
supervised or limited at the default hearing when this binge drinking would have
6
Despite the fact that, by virtue of the Bill of Review being granted, there was no
original order to modify or to enforce.
7
As a result, Justin’s above-guideline child support was not reduced through August 31,
2012.
7
been occurring.8 (2RR). Justin testified that he felt he was drinking more than he
should have been in 2011 after Adana left because he had been depressed over her
leaving and taking their child with her. (3RR 119:5-8). Justin went to alcohol
“rehab” voluntarily because he felt he needed to address, primarily, his depression.
(3RR 119:9-14). Justin testified that he received a charge for Driving While
Intoxicated four months after completing rehab in 2011 while in college, but that
he did not drink very often, and, in fact, had not had a drink in last three and a half
months, since June, before his daughter’s summer visitation.9 (3RR 160:15-23)
Justin requested that the court modify Adana’s exclusive right to make
decisions regarding medical, psychological, and educational decisions because
Adana had taken the child to a counselor without telling him for a year. (3RR 61:
14-18). He further requested that Adana be prohibited from drinking while in
possession of the child because Adana had historically drank alcohol frequently
enough to cause him some concern. (3RR 61:19-20, 96:8-19). Adana testified that
she drinks one to two glasses of wine only one to two times per week (3RR
127:15-18). Adana testified that she drinks beer occasionally in addition to wine.
(3RR 127:20-24).
8
The pre-drafted orders presented to the trial court at the default hearing contained an
alcohol injunction, but Adana did not mention alcohol at the default hearing. (2RR).
9
Justin testified in August of 2014, that, in fact, he completely stopped drinking in the
summer of 2013. (6RR 38:10-11).
8
At the end of the hearing, the court retroactively reduced Justin’s child
support back to May 2013 and took other issues under advisement while
acknowledging the hearing and ruling was for temporary orders only. (3RR 98:20-
99:6). Adana’s counsel prepared an order adjusting the current child support and
the court entered these temporary orders on October 30, 2014. (CR 229)
The trial court issued a final ruling via letter to counsel in February 2014
without ever conducting a final hearing. (CR 6).
E. The Game Changer: Playing Princess Tag With Uncle Gilbey
On April 20, 2014, before the trial court’s final order was entered, the child
made an outcry to Justin and his wife that she had been playing “Princess Tag”
with her Uncle Gilbey, and that Adana told the child not to tell Justin that the child
had ever met or been around Uncle Gilbey; that it was their little “secret.” (4RR
13:17-14:19; Suppl CR ___). Justin immediately alerted his attorney, who made a
report to Child Protective Services (“CPS”).
On April 24, 2014, Jaclyn Roberts with CPS conducted a surprise, recorded
interview with the child at the child’s daycare center. (4RR 28:18-22). While the
child readily told Ms. Roberts that Uncle Gilbey was among the persons living at
her maternal grandparent’s house, when the child was directly asked if she ever
sees Uncle Gilbey there, the child denied it in accordance with her mother’s
admonishments. (4RR 29:17-23). Being a seasoned CPS veteran and child
9
interviewer, Mr. Roberts began asking the child what kind of games she likes to
play, where she plays them, and with whom she plays the games.10 (4RR 29:23-
24). The child said she plays “Princess Tag” with her Uncle Gilbey at her
grandparents’ home and that once, on a Friday after school, Uncle Gilbey was too
tired to play, so they watched television. (4RR 29:24-30:4, 42:2-13).
Ms. Roberts informed both Adana and Justin’s counsel of the contents of the
child’s interview the same day. (5RR 9:6-17). Justin filed requests with the trial
court the next day for a writ of possession and/or a temporary restraining order, to
re-open evidence, for the right to determine the primary residence of the child and
other Section 153.132 rights, and for supervised access to the child for Adana.
(Suppl CR ___). That afternoon in chambers, the trial court ordered Adana to
relinquish possession of the child to Justin immediately and set a hearing for the
following week.
April Hearing
At the April hearing, Ms. Roberts testified as to what the child told her,
including that the game “Princess Tag” it is just like “regular tag,” except that the
child is the “princess” and whoever catches her is her “prince.” (4RR 42:11-13).
When asked if her recommendation was that the child remain at Justin’s house,
10
Ms. Roberts testified that she has worked for CPS for seven years and interviewed
“thousands” of children. (4RR 28:4-13).
10
Ms. Roberts testified that she had “significant concerns” about the child being
around the maternal family because they do not believe that Uncle Gilbey is a
danger to the child, and that if the child remained in Lubbock, the child should see
a counselor in Lubbock. (4RR 39:12-18; 37:17-19).
The child’s counselor testified that she was “very certain” that continued
removal from her mother would cause the child emotional harm. (4RR 49:19-23).
However, in forming that opinion, the counselor admitted that she relied on false
information provided to her by Adana that Justin was not present in the child’s life
during the child’s first year, which is “critical” for attachment, when, in fact,
Adana and Justin lived together during the child’s first year. (4RR 53:22-54:4,
56:3-14, 32:10-12). The counselor further testified that she counseled the child
under this presumption for a year without attempting to verify the information
through Justin or any disinterested collateral contacts. (4RR 61:23-62:10; 6RR
80:1-5). The trial court subsequently dismissed any notion that the child was not
bonded to Justin or would be emotionally harmed by separation from her mother
when, after remaining with Justin for several weeks, the counselor reported the
child was doing was doing well and was enjoying her time at Justin’s house. (5RR
37:1-7, 77:5-10).
Justin testified that Adana and “her whole family believe that [Uncle Gilbey
is] innocent and that he was framed and that the State had planted evidence.” (4RR
11
15:9-11).
The trial court determined from the testimony that the child had, in fact,
been in the presence of, and had played games with, Uncle Gilbey in violation of
the injunction. (4RR 66:10-16, 111:7-10). And while Adana and her parents told
Ms. Roberts and testified that the child had never been in the presence of Uncle
Gilbey, the trial court found that their testimony lacked credibility; that “they’re
down here saying what’s necessary to get what they want.” (4RR 106:17-19). The
court stated it was “not going to wait until this little girl is fondled to do something
about it,” and ordered Justin to maintain custody. (4RR 107:7-8). The trial court
also ordered the child to have a forensic interview at the Child Advocacy Center
(“CAC”) and one session with the child’s therapist in an attempt to ascertain more
information about the child’s contact with Uncle Gilbey and who told the child
what before returning to update the court the following month. (4RR 110:5-
111:12). The trial court stated that it trusted the child’s counselor “is not going to
try to hide things from us.” (4RR 110:16-17).
Justin took the child to the CAC interview directly after the April hearing,
and to the first ‘post-removal’ counseling session the following week. (5RR 17:11-
16).
May Hearing
At the May 2014 hearing, the CAC interviewer testified that the child denied
12
having any uncles whatsoever, despite the fact that the child has a second uncle she
frequently visits. (5RR 6:11-22, 10:6-14). As a result, Ms. Roberts testified that she
was concerned that the child got in trouble with Adana for admitting to Ms.
Roberts that she played with her Uncle Gilbey. (5RR 10:6-23). At the April
hearing, Adana’s mother testified that “Princess Tag” was the game the child
played with the grandmother’s neighbor’s children. (4RR 88:10-24). Upon
interviewing the parents of the neighbor children in question, however, those
parents said they had never heard of the game “Princess Tag.” (5RR 11:11-22).
Ms. Scott, the child’s counselor, reported that the child admitted that Adana
had told the child not to talk to anyone about her Uncle Gilbey, but that Dad had
not told the child to say, or not say, anything. (5RR 29:3-8, 19-21). Ms. Scott also
testified that the child told her that the child lied to CPS–because she was “shy and
nervous” and “her mind was out of it”–and that the child never told Justin that she
had seen Uncle Gilbey. (5RR 31:4-5; 35:9-18). Ms. Scott said she believed the
child’s new version because she and the child have a “rapport,” even though the
child told the counselor in the same breath that she had been coached by her
mother, and even though, the counselor admitted, there would be no reason for
Adana to coach the child about Uncle Gilbey if the child had never been in the
presence of Uncle Gilbey. (5RR 39:7-40:4, 32:11-14).
Because 1) the CAC interview and counseling session were unproductive
13
with respect to learning whether or not the child had been touched sexually, 2) the
child was now saying she had never seen Uncle Gilbey, and 3) the child’s current
therapist recommended the child see a psychologist, Justin took the child to a child
and family psychologist, Dr. Mark White, in Lubbock the following week. (5RR
18:1-21; 6RR 61:23-25).
Justin also hired a psychologist local to the trial court, Dr. Kelley Baker,
after the child told Dr. White that she was afraid of Uncle Gilbey and witches,
which her grandfather told her “get little girls.” Although Dr. White shared with
Dr. Baker what the child expressed, the trial court refused to allow Dr. Baker to
testify to these facts because, the trial court stated, Justin was not authorized to
take the child to a psychologist. (5RR 51:1-11). Dr. Baker testified that young
children can easily be coached to tell “first order” lies, which are lies in response to
simple, direct “first order” questions. (5RR 46:19 - 48:12). Dr. Baker said that
typically children under the age of six have difficulty telling “second order” lies
when the question is presented in a way that the child is not able to understand that
they are essentially being asked for the same information. (5RR 46:19 - 48:12). For
example, a child might say, “No,” when asked if she has ever seen someone, but
then say that she plays games with that person, as the child did here during the CPS
interview. (4RR 29:17-30:4, 42:2-13).
Adana testified that she had cut-off all contact with her parents since the
14
April hearing. (5RR 60:1-6).
At the conclusion of the May hearing, the trial court again ordered that
Justin was to maintain custody, ordered Adana to take a protective parenting class,
allowed Adana to have some visitation with the child, and imposed an injunction
on the child being in the presence of the child’s maternal grandparents. (5RR
83:11-21). Additionally, the court ordered a series of counseling sessions with the
child’s counselor along with what the content of the sessions should be. (5RR
80:2-14, 19-21; 82:2-5, 84 12-13). The court further ordered that the child was not
to see another counselor besides Ms. Scott. (5RR 77:19-20).
In a session with the child’s counselor at the end of June, the child told the
counselor that there was something–a lie with respect to Uncle Gilbey–that she had
not told anyone about yet. (CR 284). Despite prodding by the counselor, the child
would not say what she had yet to reveal. (CR 284). The following month the child
told Justin, then the counselor during a session with the child, that Adana spanks
the child in the mouth when the child says something that she is not supposed to
say. (CR 284, 6RR 85:12-23). The child demonstrated to the counselor how Adana
hits her on the mouth using a doll. The child’s counselor reported Adana’s
behavior to CPS (6RR 85:12-23). In early August while the child was spending a
week of summer possession with Adana, the child told Justin in a telephone call
that she had finally gotten to fly her kite, but that her kite did not go as far up in the
15
air as her grandfather’s kite. (CR 285; RR 45:7-8; Pet’r’s Ex 3, audio recording).11
Justin detailed these three concerns in an affidavit and filed a second temporary
restraining order requesting that Adana return the child to Lubbock early, that
further visitation be restricted to the Lubbock, and that a replacement counselor be
appointed since the child was withholding information about Uncle Gilbey.12 13
(CR 281).
Adana returned the child to Lubbock following the child’s one-week visit at
Adana’s house. (RR 45:4-13). Justin began recording the child’s telephone
conversations with Adana at that time, he said, due to his concerns that Adana was
continuing to violate the trial court’s injunctions. (6RR 45:4-25). In a telephone
call between the child and Adana the day after Adana returned the child to
Lubbock, Adana “remind[s]” the child that “we”…“you and me,” had flown kites
the week before. (6RR 44:2-13, 47:3-16).
August Hearing
At the April hearing At the status hearing on August 20, 2014, Justin
attempted to introduce the “you and me” recording between the child and Adana as
11
The trial court had enjoined the child from being in the presence of her grandparents
ten weeks earlier.
12
Adana told Justin in August that she was considering moving to the Lubbock area
since she was no longer associating with her family. (6RR 63:11-22).
13
The trial court denied the request over the phone as the judge (as well as opposing
counsel) were at a family law seminar in San Antonio.
16
direct evidence of Adana’s coaching the child. (6RR 45:21-25). The trial court
refused to admit the recording opining that Justin did not meet the best interest of
the child threshold found in Alemeda v. State, and therefore, allowing the recording
to be heard or admitted would be tantamount to the trial court violating the “federal
wiretap laws.”14 (6RR 51:16-19, 52:7-16, 55:15-17). Justin also testified that the
child cried in her bedroom a lot after coming home from Adana’s two separate
one-week summer visits with the child. (6RR 39:1-3).
Justin testified that he no longer drinks alcohol and had not had a drink in
over a year.15 (3RR 160:15-23; 6RR 38:10-11). Justin said that if the child stayed
in Lubbock, the child would not be subject to daycare or after-care once she started
school because his wife is a stay-at-home-mom with Justin’s younger daughter.
(6RR 62:19-23).
Justin testified that he was concerned that Adana spanking the child in the
mouth was how Adana controlled what the child revealed, and that Adana’s actions
were the result of a cycle of abuse. (6RR 58:116-59:10). Adana had previously
admitted that she emancipated herself as a minor, which she told Justin was due to
her mother hitting her in the head and face with a hairbrush, but Adana claimed she
14
Alemeda v. State does not address federal wiretap laws, but rather state ‘wiretap’ law.
See infra, pg. 31.
15
Further, Justin’s wife provided in her affidavit supporting the April 2014 request for a
restraining order (in order to address any concerns about Justin’s drinking that Adana alleged at
the October 2013 hearing) that she and Justin live an alcohol-free lifestyle (Suppl CR ___).
17
emancipated herself because she wanted to live with her boyfriend. (2RR 14:17-
15:19). The child’s counselor admitted that it is possible that what Adana is doing
to the child is the result of a cycle of abuse. (6RR 89:2-8).
The child’s counselor also testified that she still does not believe (as she did
not at the May hearing), that the child has ever been in the presence of Uncle
Gilbey. (6RR 84:19-24). Ms. Scott also testified that she “clarified” with the child,
during a session in which Adana was also present in the room, that the child had
flown kites with her grandfather a long time ago, but not so long ago with her
mom. (6RR 83:9-24).
Adana testified that she drank the equivalent of one to two glasses of Franzia
wine three to four times per week. (6RR 9:23-10:10, 10:21-23). This amount
represents twice the amount Adana testified in October 2013 that she regularly
consumes, but she was aware at this point that the contents of her trash had just
been appropriated. (3RR 127:15-18; 6RR 15:16-19). Justin testified he requested
that a private investigator appropriate Adana’s curbside trash because he had noted
that Adana sometimes seemed intoxicated when he spoke to her while she was in
possession of the child. (6RR 38:12-20). The court had previously declined his
request to impose an alcohol injunction on Adana. (3RR 96:8-12; CR229).
The trash collected from Adana’s home by the investigator one week before
the August hearing contained three large cans of beer and six empty 5-liter boxes
18
of Franzia wine, which would equate to consumption of forty bottles of wine per
week. (CR 161-169 (investigator’s report); 6RR 28:5-30:13, 32:18-33:8). The
receipts also contained in the trash confirmed that Adana purchased three of the 5-
liter boxes (equating to twenty bottles) within a four-day period, one of which
Adana purchased while Adana was in possession of the child. (CR 165; 6RR
33:20-25, 38:17-20). Adana’s trash also contained an empty prescription bottle of
Fioricet, which contains a barbiturate, and an empty over-the-counter
analgesic/sleep-aid combination, as well as refill receipts for both of these central
nervous system depressants. (7RR 162). Packaging for both medications contain
warnings against mixing these drugs with alcohol. (7RR 162). Adana said she had
stored the empty wine boxes over a period of months and that she gave one of the
three boxes she purchased over a four-day period to a friend. (6RR 981-18).
At the end of the hearing, after Justin had custody of the child in Lubbock
for four months, the trial court returned the child to Adana’s primary custody and
lifted the injunctions on the child being in the presence of, or in the home of, the
maternal grandparents, which is also Mr. Buitron’s home. (CR 291). The court
maintained the injunction on the child being in the presence of Mr. Buitron. (CR
317). That is, the trial court requested that Adana’s counsel provide it with the
same order rendered in February 2014 via letter before the child’s outcry, and the
trial court entered the same on August 29, 2014. (6RR 112:13-16).
19
F. Post-Trial Motions
Justin requested Findings of Facts and Conclusions of Law within twenty
days after the final order was entered, and timely filed notice of past due Findings
and Conclusions. (CR 323, 329). Justin filed a Motion for New Trial and a Motion
to Modify, Correct, or Reform Judgment within thirty days after the final order
was entered. (CR 324, 327). After receiving Findings of Facts and Conclusions of
Law from the trial court, Justin timely requested Additional and Amended
Findings and Conclusions, to which the trial court did not respond. (CR 336).
20
SUMMARY OF THE ARGUMENT
I. and II.
The trial court erred, or abused its discretion, by excluding a telephone
recording between the child and mother and by excluding testimony from a
psychologist. The trial court believed that Justin did not have the authority to
obtain the evidence under federal wiretap laws, under the existing trial court
orders, or under Section 32.005 of the Texas Family Code.
The vicarious consent doctrine provided the consent required under federal
wire tap statutes to record the call because Justin had a good-faith, objectively
reasonable belief that recording the call was in the best interest of the child.
Justin took the child to a psychologist to have the child examined, as is his
right (and duty) as the child’s joint managing conservator. The trial court’s orders
only addressed psychological treatment, not examination. Even if Justin did not
have authority under the trial court’s order, Justin had authority under Section
32.005 that allows a psychologist with reasonable grounds to suspect a child has
been abused or neglected to examine a child.
The excluded evidence was material to the issues of conservatorship, and
excluding the evidence was harmful to the outcome of the case.
21
III.
Appellant argues that, despite the trial court stating that it was “not going to
wait until this little girl is fondled to do something about it,” that is, in effect,
exactly what the trial court did by failing to provide the child any greater protection
than the child all ready had when the child revealed that she was playing ‘touch’
games with her registered pedophilia sex offender uncle with the knowledge and
consent of the child’s mother. In fact, since the evidence in this case was re-opened
in the summer of 2014, Justin learned of other abuses Adana was imposing on the
child, but the trial court did not address them at all. The trial court’s interest
seemed to focus on returning to “status quo,” even if status quo meant the child
will continue to be endangered, coached, and abused.
The orders are contrary to the great weight and preponderance of the
evidence. The orders are clearly unjust (especially to the child, who will ultimately
be the one to suffer the harmful consequences) and should shock the conscience of
this court. Justin has been left with no real way to protect his daughter from a
sexual predator of children, and the child has been left without any protections
from a mother who has shown she will physically and emotionally abuse and
endanger the child. Therefore, the trial court abused its discretion in rending such
an order.
22
IV.
The modification judgment is void because there is no evidence to show that
an original order existed to modify. The original judgment was overturned by Bill
of Review, and, therefore, Justin is entitled to an original trial.
23
STANDARDS OF REVIEW
A. ABUSE OF DISCRETION
A trial court’s decision in family law cases regarding conservatorship,
modification, and parental rights and duties is reviewed under an abuse of
discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); See
also, Zeifman v. Michels, 212 S.W.3d 582, 587 (Tex. App.-Austin 2006, pet.
denied). A trial court abuses its discretion when its ruling is arbitrary,
unreasonable, or without regard to any guiding rules and principles. K-Mart Corp.
v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000). There is no abuse of discretion if
evidence of a substantive and probative character exists to support the trial court’s
decision. Zeifman, 212 S.W.3d at 587.
Under the abuse of discretion standard of review in family law cases,
challenges to the sufficiency of the evidence are not independent grounds of error
but are relevant considerations in assessing whether the trial court abused its
discretion. Id. at 587. When assessing whether the trial court abused its discretion
in light of the sufficiency of the evidence, the reviewing court employs 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 588. The trial court’s factual determinations are reviewed for sufficiency
24
under the first prong, then the reviewing court determines whether, based on the
evidence, the trial court's decision was reasonable. Id.
B. LEGAL SUFFICIENCY
The legal sufficiency of evidence to support a particular fact-finding is a
question of law. City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex.2005). In a
legal sufficiency challenge, the reviewing court credits favorable evidence
supporting the finding if a reasonable fact-finder could, and disregards contrary
evidence unless a reasonable fact-finder could not. Id. at 827. If the evidence at
trial would enable reasonable and fair-minded people to reach the same
conclusions, the evidence is legally sufficient. Id. at 827. When the evidence falls
within the zone of reasonable disagreement, a reviewing court may not substitute
the judgment of the trial court. McDonald v. Dankworth, 212 S.W.3d 336, 339
(Tex.App.-Austin 2006, no pet.) (citations omitted). A reviewing court cannot
disregard undisputed evidence that allows of only one logical inference. Keller,
168 S.W.3d at 814.
A reviewing court sustains a legal sufficiency challenge if the record shows:
(1) the complete absence of a vital fact, (2) the court is barred by rules of law or
evidence from giving weight to the only evidence offered to prove a vital fact, (3)
the evidence offered o prove a vital fact is no more than a scintilla, or (4) the
evidence establishes conclusively the opposite of the vital fact. Id. at 810 (citation
25
omitted). In determining whether the evidence is legally sufficient to support a
fact-finder's determination, the reviewing court must determine whether the
evidence would allow reasonable and fair-minded people to find the facts at issue.
Id. at 827.
Where a party bearing the burden of proof challenges a the legal sufficiency
of a finding, a reviewing court determines whether the evidence establishes, as a
matter of law, all of the facts in support of an issue. Dow Chemical Co. V. Francis,
46 S.W.3d 237, 241 (Tex. 2001).
C. FACTUAL SUFFICIENCY
In reviewing a question of factual sufficiency, the reviewing court considers
all of the evidence in the record, both in favor of, and contrary to, a challenged
finding in a neutral light. See Cain v. Bain, 709 S.W.2d 175, 176 (Tex.1986) (per
curiam). Where a party bears the burden of proof, a factual sufficiency challenge is
sustained if the finding is so against the great weight and preponderance of the
evidence that it is clearly unjust, shocks the conscience, or clearly demonstrates
bias. CTTI Priesmeyer, Inc. v. K & O Ltd. P'ship, 164 S.W.3d 675, 680 (Tex.App.-
Austin 2005, no pet.)
A reviewing court must not merely substitute its judgment for that of the
trier of fact when conducting a factual sufficiency review. Golden Eagle Archery,
Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003). However, the reviewing court
26
may conclude that a finding is against the great weight and preponderance of the
evidence even if the record contains “some evidence of probative force” to support
the finding. Id.
D. DE NOVO
In reviewing a question of law, the reviewing court engages in an analysis de
novo without deference to the lower court’s determination. State v. Heal, 917
S.W.2d 6, 9 (Tex.1996). A "trial court has no `discretion' in determining what the
law is or applying the law to the facts,” and, therefore, abuses its discretion if it
misinterprets or misapplies the law. Shook v. Walden, 304 S.W.3d 910, 916-17
(Tex.App.-Austin 2010, no pet.) (citations omitted).
27
ARGUMENTS AND AUTHORITIES16
ISSUE I.
Did the trial court err (or alternatively abuse its discretion) by
excluding a recorded telephone call obtained by vicarious consent due to
father’s good-faith, objectively reasonable belief that recording the call was in
the child’s best interest because the mother was continuing to violate
protective injunctions and coach the child to deny the mother’s violations?
Both federal and state “wiretap” statues prohibit intercepting or recording a
telephone conversation unless one of the parties to the conversation has consented
to the interception or recording.17 However, the federal and Texas courts
considering the doctrine of “vicarious consent” have all held that the necessary
consent may be vicariously provided by a parent (or guardian) on behalf of the
minor child when the consenting adult has a good-faith, objectively reasonable
belief that recording the communication is necessary and in the best interest of the
child.18
16
Citations to the record are included if not previously cited in the Statement of Facts.
17
18 U.S.C. § 2511(2)(d); Tex. Pen. Code §16.02(c)(4)(B); Tex. Pract. & Civ. Rem Code
§ 123.001(2)
18
Other than the federal and state cases cited herein, the other federal and state cases are,
Wagner v. Wagner, 64 F.Supp.2d 895, 896 (D.Minn.1999); Campbell v. Price, 2 F.Supp.2d 1186
(E.D.Ark. 1998); Thompson v. Dulaney, 838 F.Supp. 1535, 1544 (D.Utah 1993); Isaacson v.
Isaacson, No. CIV-10-678-M (W.D. Okla. Apr. 6, 2011); Weaver v. State, No. 10-06-00326-CR,
2007 WL 4157237, at *2 (Tex. App.–Waco Nov. 21, 2007, pet. denied) (mem.op., not
designated for publication); Ussery v. State, 03-07-00116-CR, 2008 WL 269439, at *1 (Tex.
App.–Austin, Jan. 30, 2008, pet. ref’d) (mem.op., not designated for publication).
28
The Texas opinions affirming the vicarious consent doctrine are the progeny
of Pollock v. Pollock, 154 F.3d 601 (6th Cir.1998), which was the first, and is the
only, federal circuit court to address vicariously consented telephone recordings.
Id. at 606. In Pollock, a mother recorded telephone calls between her daughter and
her ex-husband and his new wife after the mother became concerned that her
daughter was being “emotionally abused” by the father. Id. at 603. Specifically, the
mother believed that her daughter’s father and step-mother were subjecting the
fourteen-year-old child to mounting “psychological and emotional pressure” to do
whatever necessary for the daughter to convince her mother that the father should
have custody of the daughter. Id. at 604.
The mother had noted a gradual change whereby her daughter demonstrated
an “excessive or compulsive desire to be with her father” and a “deteriorating
relationship” with her mother. Id. The mother said she began recording calls
because of her “concern for her child’s well being.” Id. The court noted that it was
important to the determination to consider that the recordings were made in the
context of a bitter and protracted custody dispute. Id. at 603.
In one recorded call between the child and her step-mother, the child
expressed wanting to kill the mother’s two attorneys. In turn, the step-mother
added the trial court judge to the “hit list.” Id. The father and step-mother filed suit
against the mother for violating federal wiretap statutes prohibiting interception
29
and disclosure of telephone conversations without consent of one of the parties. Id.
at 605.
The Pollock court found that the mother’s concerns about her daughter’s
welfare provided vicarious consent to record and disclose the content of the
telephone calls, and thus, the recordings did not violate federal wiretap laws. Id. at
610. Specifically, after surveying each state and federal district court opinion on
the issue at that time, the Pollock Court held that:
[A]s long as the guardian has a good faith, objectively
reasonable basis for believing that it is necessary and in
the best interest of the child to consent on behalf of his or
her minor child to the taping of telephone conversations,
the guardian may vicariously consent on behalf of the
child to the recording.
Id.
In Allen v. Mancini, 170 S.W.3d 167 (Tex.App.-Eastland 2005, pet. denied),
a father recorded telephone conversations between his minor child and the child’s
mother during the child’s summer vacation with father. Id. at 170, 172. The father
became aware during the visitation that the mother was attempting to interfere in
the child’s relationship with the father by telling the child that her father did not
love the child, the father stole money and was going to jail, the father had
30
“kidnapped” the child, and instructed the child not to call the father “Dad.” Id. at
170. The recordings were admitted into evidence during a subsequent custody
modification proceeding. Id. at 172. The mother objected to the admissibility under
both state and federal wiretap statutes.19 Id. at 172-73. The appellate court held that
the father had provided vicarious consent “under the criteria set forth in Pollock,”
and, therefore, neither Texas nor federal wiretap laws were violated. Id. at 173.
The Texas Court of Criminal Appeals has likewise ruled on vicarious
consent. Alameda v. State, 235 S.W.3d 218 (Tex. Crim. App. 2007). In Alameda, a
mother suspected that her thirteen-year-old daughter was having an inappropriate,
but not sexual, relationship with a former male tenant who had roomed at mother’s
home for a year. Id. at 220. The mother believed that the former tenant and her
daughter were continuing to have contact without the mother’s knowledge or
permission because the man’s relatives would tell the mother things about herself
that they would not otherwise know if her daughter and the man were not still in
contact. Id. at n.1 (majority opinion); Alameda v. State, 181 S.W.3d 772, 780
(Tex.App.—Fort Worth 2005). Continued contact concerned the child’s mother
because the man had allowed the child to do things the mother did not approve of
19
The Allen opinion infers that, since the mother cited Collins v. Collins, 904 S.W.2d 792
(Tex.App.-Houston [1st Dist.] 1995), writ den'd, 923 S.W.2d 569 (Tex.1996), and Collins
addressed only Section 123 of the Texas Practice and Civil Remedies Code, the mother in Allen
was not implicating the Texas Penal Code. 170 S.W.3d at 172.
31
during his tenancy, such as drive a car. Alemeda, 235 S.W.3d. at n.1 (majority
opinion). The mother recorded all incoming and outgoing telephone calls and
discovered the man and her daughter were engaging in a sexual relationship. Id. at
220. The recordings were turned over to the police, and the man was charged
accordingly. Id. At trial, the defendant moved to suppress the recordings as
inadmissible under Article 38.23 of the Texas Code of Criminal Procedure
(exclusionary rule) claiming the recordings were illegally obtained per § 16.02 of
the Texas Penal Code. 235 S.W.3d at 220. The trial court held that vicarious
consent was provided due to the mother’s concerns. Id. Both the intermediate
appellate court and the Court of Criminal Appeals adopted the standard set out in
Pollock and affirmed on that basis.20 Alameda, 181 S.W.3d at 778; Alameda, 235
S.W.3d at 223.
In the instant case, Justin’s good-faith, objectively reasonable concerns were
a matter of record long before he began recording calls between the child and
Adana. The child made an outcry to Justin and to CPS that the child had been
around her pedophilia uncle in violation of an injunction. In fact, the uncle had
20
The verbiage of the Forth Worth Court of Appeals’ holding differed slightly from
Pollock, stating that: "[A]s long as a parent has a good faith, objectively reasonable basis for
believing that the taping of telephone conversations is in the best interest of the parent's minor
child, the parent may vicariously consent to the recording on behalf of the child.” Alameda v.
State, 181 S.W.3d 772, 778 (Tex.App.—Fort Worth 2005) (emphasis added). The Court of
Criminal Appeals used both the Pollock language and the Fort-Worth appellate court’s language
in their opinion. 235 S.W.3d at 223.
32
been touching the child via a uniquely created version of tag that made the child a
“princess” and whoever caught her, her “prince.” It is well established that early
physical pedophilia grooming often includes body-contact games or play-acting,
and early psychological grooming often includes making the child feel “special.”21
Even the trial court voiced concern over the dynamic of the princess/prince role
playing, and Ms. Roberts agreed the dynamic was worrisome. (4RR 42:17-24).
Then, after Adana received a call from CPS letting Adana know what the
child told her, the child recanted her story, denying that she even had any uncles at
all. CPS joined Justin in his concern that Adana had punished the child for her
outcry. A few months later, the child revealed Adana’s mode of punishment when
the child says things the child is not supposed to say: spanking the child in the
mouth.
In the few days before Justin began recording telephone calls between his
daughter and Adana, it became apparent to Justin that Adana had again violated a
court injunction when the child told Justin in a phone call that she had flown kites
with her paternal grandfather that day (Justin is unaware if the child’s grandmother
or Uncle Gilbey, who both reside with the grandfather, was also present). The
court had specifically enjoined Adana just ten weeks earlier from having the child
21
Anne-Marie McAlinden, ‘Setting’Em Up’: Personal, Familial and Institutional
Grooming in the Sexual Abuse of Children, 2006, at 347; Samantha Craven, Sexual Grooming of
Children: Review of Literature and Theoretical Considerations, 2006, at 295.
33
in her parents’ presence during Adana’s limited summer possession. (5RR 83:11-
21). Justin felt it was in the child’s best interest for him to be able to document the
continued violations so that the trial court would have sufficient information to put
safeguards in place.
In both Pollock and Alemeda, the parents only suspected inappropriate
conduct by the other parent or third party at the time the courts deemed their
suspicions were enough to provide vicarious consent. Justin already knew Adana
had engaged in inappropriate conduct with the child, and had good reason to
believe she was still violating injunctions, which necessarily meant she was still
coaching the child. Exacting secrecy also has the effect of interfering in the child’s
relationship with the other parent, as was the case in Pollock and Allen.
The trial court and CPS shared Justin’s concerns about Adana’s conduct and
about whether the child had been, or would be, harmed, which is why the trial
court removed the child from Adana’s possession and awarded Justin temporary
custody. The fact that others would, and did, have the same concerns is a likely
gauge for “good-faith, objectively reasonable basis.” See Wichita County v. Hart,
917 SW2d 779, 784-85 (Tex.1996) (reviewing “good faith” definitions in various
contexts and holding that “good faith” is “honesty in fact” in the Whistleblower
context); see also, Jackson v. Axelrad, 221 S.W.3d 650, 655-56 (Tex. 2007) (the
traditional reasonable-person standard takes into account both the knowledge and
34
skill of an ordinary person). Given that others did have serious concerns about
Adana’s conduct, Justin’s vicarious consent to record telephone calls between the
child and Adana meets the standard articulated in Pollock, Alemeda, and Mancini.
As the cases on vicarious consent demonstrate, recording a child’s telephone
conversations often produces the only direct and irrefutable evidence that the other
parent or a third-party is engaging in behavior harmful to the child. In this case,
while there was evidence that Adana had coached the child and that she spanks the
child in the mouth to control what the child says, the recording was the only
evidence that Adana was continuing to coach the child after undertaking a
protective parenting class that the court seemed confident would reform Adana.
Thus, contrary to the trial court’s finding that Adana was “successfully progressing
in protective parenting classes,” the excluded recording would have demonstrated
to the trial court that, despite embarking on a protective parenting class, Adana was
continuing to ignore injunctions and then continuing to mentally and emotionally
abuse the child in an attempt to exonerate herself. (CR 334:27)
Moreover, the trial court specifically told Adana at the April hearing after
the child was removed from her possession that she was not to coach the child, and
stated, “If you think it’s bad now, get caught doing that,” referring to coaching the
child. (4RR 114:20-115:2). Because at the same hearing the trial court refused to
order any specific visitation for Adana with the child, the statement “if you think
35
it’s bad now,” clearly implied the trial court would continue to severely limit
Adana’s access to the child if she were “caught” coaching the child. (4RR 114:16-
19, 115:3-13, 116:4-9).
But without the irrefutable evidence “catching” Adana continuing to coach
the child even as late as August, instead of limited access, the trial court returned
the child to Adana’s possession at the conclusion of the August hearing. That is, by
the trial court’s own sentiments, the exclusion of the “you and me” recording
evidencing Adana’s continued coaching likely caused a rendition that the court
would not have otherwise made. Kittman v. Miller, No. 12-13-00097-CV 2013 WL
4680575 at *8-9 (Tex. App. – Tyler Aug. 29, 2013, pet. denied) (mem. op.)
(excluded testimony that showed a parent behaved inappropriately on more than
one occasion probably caused an improper rendition). Therefore, the trial court
erred, or alternatively, abused its discretion, and a new trial should be granted.
ISSUE II.
Did the trail court err (or alternatively abuse its discretion) in excluding
expert testimony that the child was afraid of her uncle, a convicted pedophile,
when the evidence was permissibly obtained.
At the initial hearing after the child made an outcry (April hearing), the trial
court ordered that the child have a CAC interview and a session with the child’s
counselor. Justin took the child to a psychologist, Dr. White, for an examination
shortly before the May hearing as well. During basic get-to-know you questions,
36
such as what do you like/dislike, what are you afraid of, the child spontaneously
said that she was afraid of witches and Uncle Gilbey. (5RR 51:1-11). Justin did not
expect the child to mention Uncle Gilbey since the child had denied having uncles
or ever seeing Uncle Gilbey to CAC and her regular counselor, respectively, in the
weeks before owing do Adana’s coaching. The fact that she did mention Uncle
Gilbey demonstrated to Justin that the child does not feel free, or safe, to talk to the
counselor Adana and her mother take the child to see–the one who reached out to
Adana’s counsel offering her ‘testimony.’ After this disclosure to Dr. White, Justin
hired a psychologist, Dr. Kelley Baker, local to the trial court, to consult with Dr.
White so that Dr. Baker could testify as to her and Dr. White’s impressions, the
fears the child expressed (statements made for the purpose of medical diagnosis),
and offer therapy suggestions the following week at the May hearing.
During the May hearing, and in the trial court’s findings of fact and
conclusions of law, the trial court found that Justin was not authorized to have the
child examined by a psychologist because Adana was the parent with “the
exclusive right…to consent to psychiatric and psychological treatment,” and the
trial court had neither provided authorization. (5RR 19:1-20:25, 53:15-54:24; CR
232, 333:24, 335:3) (emphasis added). However, Justin testified, and Justin’s
counsel made it clear, that Justin took the child for an examination or assessment
only, not for treatment. (5RR 19:14-20:25). The parties’ orders did not address a
37
parent taking a child to a psychologist, or any other health care provider, for an
examination. The only limitation was regarding treatment of the child, and Dr.
White did not provide treatment.
Under the parties’ order Justin had, and has, a duty of care and protection of
the child during his periods of possession. At the time the child was examined by
Dr. White, Adana had no right to any possession of the child whatsoever. In fact,
the trail court expressly refused to order any visitation between the April and May
hearings. (4RR 116:4-9). The right to have the child examined, therefore, arises
under Justin’s duty to protect the child if he is not otherwise prohibited, otherwise
Justin would merely be warehousing his daughter without any ability to determine
what specialized care he may need to provide for her. And Justin was not
prohibited from having his child independently examined under the parties’ or the
trial court’s orders at that time. (4RR, CR 229, 252).
Should this court interpret Justin’s authority to consent to an examination
under the parties’ orders differently, Section 32.005 of the Texas Family Code
expressly entitles, inter alia, a psychologist to examine a child “without the consent
of the child, the child’s parents or other person authorized to consent to treatment
under this subchapter” if the psychologist has “reasonable grounds to believe the
child’s physical or mental condition has been adversely affected by abuse or
neglect,” unless consent is prohibited by a court order. Tex. Fam. Code §
38
32.005(a), (c). In the instant case, no injunction existed that prohibited Justin from
taking the child to a psychologist.
It appears that § 32.005 (or its sister statute 32.004) have never been
considered by Texas appellate courts. However, sections in Subchapter A
(“Consent to Medical Dental, Psychological, and Surgical Treatment”) allow
minors to consent for themselves to various treatments, including surgery, under
certain conditions and allow various providers to treat or examine minors without
any consent whatsoever, provided they have reasonable grounds to do so. Tex.
Fam. Code §§ 32.001-32.005. The “subchapter” provides a laundry list of “other
persons” from whom a psychologist does not need consent in order to examine a
child (besides the child and the child’s parents), including various family members,
various institutions, a court having jurisdiction over a suit affecting the parent-
child relationship of which the child is a subject, managing conservators, and
guardians. Tex. Fam. Code §§ 32.001(a), 32.004(b).
In its conclusions of the law, the trial court seems to interpret § 32.005 to
mean that a psychologist may only examine a child when a psychologist discovers
facts warranting reasonable grounds on their own. (CR 335). Appellant is unclear
how a psychologist might independently discover such facts without someone
close to the child–who will transport the child to the psychologist, such as a parent
or guardian–relating facts to the psychologist. The trial court further opines that a
39
parent should not be allowed “to create” reasonable grounds to believe that his
child’s physical or mental condition had been adversely affected by abuse or
neglect. (CR 335). Appellant agrees with this statement. However, here, Justin did
not create the reasonable grounds, but rather the reasonable grounds were all ready
created by Adana (as evidenced by the trial court removing the child from her
possession, of which Dr. White was aware since he knew Justin prior to the child’s
removal). Justin merely related the removal facts to the psychologist who then
formed his own beliefs as to whether he had reasonable grounds.
Indeed, it would seem impermissible under the first rule of statutory
construction to insert qualifiers after “reasonable grounds” such as “which he or
she independently discovers” or “the facts of which were not communicated by a
parent” into the text of a statute. Fitzgerald v. Advanced Spine Fixation Sys., Inc.,
996 S.W.2d 864, 865 (Tex. 1999) (citations omitted) (“[F]irst…look[] to the plain
and common meaning of the statute's words"); Nationwide Ins. Co. v. Elchehimi,
249 S.W.3d 430, 434 (Tex. 2008) (declining to adopt an “integral part test”
because the test was “not present in the text of the statute…”)
Due to the trial court’s erroneous interpretation of Justin’s authority (or the
psychologist’s under § 32.005), the court was offended that Justin took the child to
a psychologist even though Justin only sought to have the child examined for clues
of molestation since the CAC forensic interview ordered was ineffectual likely due
40
to Adana punishing the child for the outcry. Instead of allowing Dr. Baker (or Ms.
Scott) to offer suggestions on how to proceed with therapy considering the child
was saying she was scared of a ‘non-existent’ uncle, the trial court ordered the
content of the child’s therapy.
Dr. Baker’s excluded testimony was evidence material to the issue of
conservatorship, including present and future emotional needs of, and danger to,
the child. See Van Heerden v. Van Heerden, 321 S.W.3d 869, 877 (Tex. App.-
Houston [14th Dist.] 2010, no pet.). Dr. Baker’s testimony would provide the only
evidence that the child was scared of Uncle Gilbey for some reason. The trial court
exclusion’s of this evidence, therefore, was an error, or alternatively, an abuse of
discretion and probably caused an improper rendition of the case. McCraw v.
Maris, 828 S.W.2d 756, 758 (Tex.1992). It is unlikely that the trial court would
have returned the child to Adana if the trial court had considered the testimony,
which tended to show that the yet-to-be revealed secret about the registered
pedophilia sex offender uncle that the child had been playing “touch” games with
is something that makes the child as scared of him as she is of witches, who “get
little girls.”
ISSUE III.
Did the trial court err (or alternatively abuse its discretion) by
designating the mother as the parent with the exclusive right to designate the
child’s residence, by granting the mother other exclusive rights, and by
41
allowing the mother to have unsupervised possession of the child where the
evidence was legally and factually insufficient to support that such findings
and orders were in the best interest of the child?
A. Conservatorship
The determination of conservatorship issues is "intensely fact driven.” Lenz
v. Lenz, 79 S.W.3d 10, 19 (Tex.2002). The burden of proof in conservatorship
cases is a preponderance of the evidence. Id.; § 105.005; In re W.M., 172 S.W.3d
718, 724 (Tex.App.-Fort Worth 2005, no pet.). The Texas Supreme Court has
developed best interest factors to guide the courts in making such determinations in
conservatorship and modification of conservatorship cases. Holley v. Adams, 544
S.W.2d 367, 371-72 (Tex. 1976); In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000).
The Texas legislature has provided the courts with public policy imperatives for
the courts to observe in applying the best interest factors to the facts in each
conservatorship case. Id. at 14; Tex. Fam. Code § 153.001(a). Many statues in the
Texas Family Code reveal how seriously the legislature takes its public policy
imperatives and parens patriae role in the protection of children within its borders
from abuse and neglect at the hands of a child’s own parent. See, e.g., Tex. Fam.
Code §§ 153.004, 153.131, 156.104, 156.1045, 161.001; Saavedra v. Schmidt, 96
S.W.3d 533, 544 (Tex.App.-Austin 2002, no pet.).
B. Safety of the Child Controls
Collectively, the guidance provided by the Texas Supreme Court and
42
legislature mandate that the safety of the child controls. Also collectively, the
guidance as applied to the facts in this case dictate that Adana should not be
appointed the conservator with the exclusive right to designate the child’s
residence or to consent to the child’s psychological treatment, and that her periods
of possession should provide for monitoring or other protective safeguards for both
the physical and emotional safety of the child.
Section 153.001(a) sets out the state’s public policy imperatives:
(a) The public policy of this state is to:
(1) assure that children will have frequent and continuing contact with
parents who have shown the ability to act in the best interest of the
child;
(2) provide a safe, stable, and nonviolent environment for the child; and
(3) encourage parents to share in the rights and duties of raising their child
after the parents have separated or dissolved their marriage.
Tex. Fam. Code § 153.001(a) (emphasis added).
At the outset of the conservatorship statutes, the legislature qualifies which
parents may be assured of frequent and continuing contact with their children when
a court decides conservatorship and possession issues. In re A.V., 113 S.W.3d 355,
361 (Tex.2003) (citations omitted) (“The rights of parenthood are accorded only to
those fit to accept the accompanying responsibilities."). The statute further
43
provides that courts will first and foremost seek to provide a safe, stable, and
nonviolent environment. Without a safe environment, which necessarily includes
nonviolence, stability is of little import. Id. (“[P]rotection of the child is
paramount…”). A court that effectively makes the same assurance to a parent who
has not shown that he or she would keep their child safe, renders the policy
nonexistent and leaves the child at risk of harm. See generally, Sylvia v. Tex. Dep’t
of Family and Protective Servs., No. 03-09-00427-CV 2010 WL 1507827 at *13
(Tex. App.–Austin Apr. 15, 2010, no pet. h.) (mem. op.) (citations omitted)
(mother’s parental rights terminated for failure to protect children from sexual
abuse because she disbelieved her husband was intentionally exposing himself to
her children); In re A.L.E., 279 S.W.3d 424, 431-32 (Tex. App.-Houston [14th
Dist.] 2009, no pet.) (mother’s possession was supervised unless she provided
father with negative drug and alcohol test results prior to each possession period).
The Texas Supreme Court and many courts of appeals have held that the
presumptions in Chapter 153 of the Texas Family Code do not apply to Chapter
156 conservatorship modifications. In re V.L.K., 24 S.W.3d 338, 343 (Tex.2000);
In re S.E.K., 294 S.W.3d 926, 928 (Tex. App.-Dallas 2009, pet. denied); In re
C.A.M.M., 243 S.W.3d 211, 216 (Tex. App.-Houston [14th Dist.] 2007, pet.
denied). And while this interpretation means that the ‘safety of the child’
presumptions contained in Chapter 153 where there has been a showing of abuse
44
and neglect are not statutorily available to the child in a modification proceeding,
certainly evidence of abuse and neglect must still be considered. See, S.E.K., 294
S.W.3d at 929. The ‘safety presumptions’ available to protect the child in an
original proceeding provide that a parent who has a history or pattern of, inter alia,
child neglect or abuse may not be appointed joint managing conservator and
should have supervised visitation with the child. Tex. Fam. Code § 153.004(b), (e);
In re L.M.M., No. 03-04-00452-CV, 2005 WL 2094758, *7 (Tex.App.-Austin
2005, no pet.) (mem. op.) (citations omitted); Contra In re L.C.L., 396 S.W.3d 712,
719 (Tex. App.-Dallas 2013, no pet.).
Spanking a child in the mouth, for any reason, much less to silence a child,
is physical and emotional abuse. Cases where testimony reveals that a parent hit a
child in the mouth are noted in appellate opinions, likely owing to the fact that
such behavior is universally recognized as physical and emotional abuse. In re
A.A.M., No. 14-05-00740-CV, 2007 WL 1558701, at *2 (Tex. App.--Houston [14th
Dist.] May 31, 2007, no pet.) (mem. op.); In re T.N.C., No. 13-11-00305-CV, 2011
WL 5282679, at *3 (Tex. App.-Corpus Christi Nov. 3, 2011, no pet.) (mem. op.);
In re K.B., No. 03–09–00366–CV, 2010 WL 5019368, at *2, 6 (Tex.App.-Austin
Dec. 9, 2010, no pet.) (mem.op.); In re J.K., No. 09-10-00226-CV, 2011 WL
2119770 at *3, 13 (Tex.App.-Beaumont May 19, 2011, no pet.) (mem. op.).
While terminating Adana’s parental rights was never a question or request in
45
the case at bar, the statutes and case law on termination are instructive since
termination was ordered in cases similar to this case. That is, in cases where a
parent knowingly placed a child in an environment at high risk for sexual abuse, or
neglect due to alcohol abuse, and then refused to change their behavior, or were
too slow to change their behavior. Section 161.001 provides that if a trial court
finds that termination of the parent-child relationship is in the best interest of the
child and that, by clear and convincing evidence, inter alia, any one of the
following has occurred, the parent-child relationship may be terminated:
(D) knowingly placed or knowingly allowed the child to remain in conditions
or surroundings which endanger the physical or emotional well-being of
the child, or
(E) engaged in conduct or knowingly placed the child with persons who
engaged in conduct with endangers the physical or emotional well-being
of the child.
Tex. Fam. Code § 161(D), (E).
Subsection D permits termination for a single act of endangerment, whereas
Subsection E requires a course of conduct. In re R.D., 955 S.W.2d 364, 367 (Tex.
App.-San Antonio 1997, pet. denied) (citation omitted). Subsection D speaks to the
parent’s act or omission causing a child to be placed or remain in an endangering
environment, whereas Subsection E speaks to a parent’s conduct that itself causes
46
endangerment. Id.
In the instant case, the trial court found that the child had been in the
presence of a registered pedophilia sex offender due to Adana’s conduct. (CR
332:21, CR 317). Regardless of whether Adana wants to believe that her brother is
guilty of the pedophilia offenses for which he was convicted, she is aware of the
convictions, thus, her acts, omissions, and conduct meet, not just one, but all ‘four’
of the alternative conditions in Subsections D and E. In re L.C., 145 S.W.3d 790,
796 (Tex.App.-Texarkana 2004, no pet.) (mother’s parent-child relationships
terminated where mother, “at a minimum, knew of the potential for danger of
sexual abuse” and “failed to adequately protect the children from that risk.”). There
is no a requirement that exposing the child to endangerment resulted in harm in
order to terminate a parent’s legal relationship to their child. Williams v. Willaims,
150 S.W.3d 436, 450 (Tex. App.-Austin 2004, pet. denied) (“conduct need not
have caused an actual injury…to constitute conduct that endangers the child's
physical or emotional well-being”).
Surely, then, based on Adana exposing the child to a high risk of sexual
abuse because she refuses to “see that there’s going to be a risk,” reasonable minds
could only come to one conclusion: that the trial court abused its discretion by
allowing Adana to have primary custody of the child and not safeguarding the
child. In re J.I.O., No. 11-05-00369-CV 2007 WL 1644579, at *3 (Tex.App.-
47
Eastland June 7, 2007, no pet.) (mem. op.) (father awarded custody where mother
did not “see a problem” with her sex offender boyfriend being around the child as
there was no evidence the child was yet harmed); Doe v. Franklin, 930 S.W.2d
921, 928 (Tex.App.-El Paso 1996, no writ) (“It is foreseeable that a child will be
victimized if left alone or brought into close proximity with a pedophile. A
reasonable parent will protect a child… from [that] predatory behavior…”).
Adana is, of course, also aware of her excessive alcohol intake, (along with
prescription barbiturates), which alone will support a finding that termination is in
the child’s best interest. In re S.N., 272 S.W.3d 45, 52 (Tex. App.-Waco 2008, no
pet.) ("Evidence of illegal drug use or alcohol abuse…is often cited as conduct
which will support an affirmative finding that the parent has engaged in a course of
conduct which has the effect of endangering the child.") (emphasis added); In re
T.D.L., No. 02-05-00250-CV, 2006 WL 302126, at *7-8 (Tex. App.-Fort Worth,
Feb. 9, 2006, no pet.) (mem. op.) (considering mother's continuous abuse of
prescription drugs in analyzing trial court's subsection (E) finding); Johnson v.
Johnson, 804 S.W.2d 296, 301 (Tex.App.-Houston [1st Dist.] 1991, no writ)
(mother awarded sole custody while father’s visitation was supervised due to the
fact that father was abusing alcohol); In re H.A.P., No. 11–05–00180–CV, 2006
WL 648312, at *2 (Tex.App. – Eastland March 16, 2006, no pet.) (mem. op.)
(upholding supervised-visitation only for father due to his alcohol abuse).
48
The trial court implied during the May hearing and in its findings of fact that
returning to the prior orders or “status quo” was the goal and in the best interest of
the child. (5RR 82:23-25; CR 28). But as the cases above all demonstrate, when
“status quo” is endangering, abusing, and neglecting the child, all of which
demonstrate an improper bond between the parent and child, status quo is anything
but in the best interest of the child. Safety controls.
C. The Evidence, the Findings, and Best Interest of the Child
The trial court found that the child had been in the presence of Uncle Gilbey
during the first hearing after the CPS child interviewer testified that the child
reluctantly revealed to her that the child had played the “touch” game of Princess
Tag with her Uncle Gilbey. This finding is also reflected in the trial court’s
findings of fact. (CR 332:21). Even the evidence submitted by Adana’s counsel
showed that every day in 2014 that Uncle Gilbey was not at work or he left work
early, Adana’s mother, with whom Uncle Gilbey lives, picked the child up from
daycare as if the family is going out of their way to foster a relationship between
the child and her registered pedophilia sex offender uncle. (7RR 159, 160).
While Justin did not seek custody of the child when he filed a modification,
he did once the child told him that she had been playing Princess Tag with Uncle
Gilbey. Learning that his child was being touched by a pedophile, along with the
evidence of Adana coaching the child, spanking her in the mouth, and abusing
49
alcohol, was, as Justin put it, “definitely a game changer.” (6RR 64:18-24). It
would be a game changer for any reasonable trier-of-fact. Nonetheless, and while
there were no concerns about Justin’s parenting or the environment the child lives
in with Justin, the trial court found it not only to be in the best interest of the child
for Adana to have primary custody, but in the child’s best interest for Adana to
have all of the exclusive rights contained in Section 153.132, which is tantamount
to giving Adana sole managing conservatorship of the child. Tex. Fam. Code §
153.132; In re Kubankin, 257 S.W.3d 852, 860 (Tex.App.-Waco 2008, orig.
proceeding) (per curiam) (order providing a joint managing conservator with seven
exclusive rights corresponds to a sole managing conservatorship).
Undisputed, Relevant Substantive Conservatorship Evidence
• Justin will go to great lengths to protect his child from a pedophilia sex
offender.
• Adana fought to have the child establish a personal relationship with her
pedophilia sex offender brother as he was being released from a nine-year
prison sentence, saying that she just does not “see that there is going to be
a risk there.” (2RR 12:20-25).
• Adana exacted secrecy from the child by coaching her not to talk about
Uncle Gilbey to anyone.
• Adana has spanked the child in the mouth.
50
• Child’s counselor reported Adana to CPS.
• Adana drinks alcohol every week.
• Adana had six empty 5-Liter boxes of wine (equating to forty empty
bottles) in her weekly curbside trash.
• Adana purchased three 5-Liter boxes of wine (equating to twenty bottles)
in a four-day period.
• Adana regularly takes a prescription containing barbiturates.
Credibility Issues
The trial court, the sole judge of credibility, stated at the April hearing that
the testimony of Adana and her family lacked any credibility. “So their testimony
of their belief [that Mr. Buitron is a pedophile] to me is disingenuous. I don’t
believe–I think they’re down here saying what’s necessary to get what they want.”
(4RR 106:17-19). Thus, it would be unreasonable for a trier-of-fact to give any of
Adana’s sworn testimony credibility.
Indeed, subsequent testimony by Adana was just as incredible since Adana’s
testimony varied substantially between hearings and her versions of events were, at
times, the exact opposite of credible evidence. For example, the amount of alcohol
to which Adana testified she drank every week doubled from one hearing to the
next.
Adana maintained at the August hearing that the child never met Uncle
51
Gilbey (even after the trial court stated months earlier that it disbelieved her when
she said there had been no contact between the two). However, she also testified at
the August hearing that, “…if I had been told–if that restraining order (sic)
said…‘Do not go to anybody’s house that has, you know, [Uncle Gilbey] in their
house,’ if that’s what it said, I would have done that.” By this ambiguous
statement, Adana appeared to be blaming the injunction (or the court) for the
contact between the child and Uncle Gilbey because the injunction did not list all
the places the child might run into her uncle, such as the home he lives in. (5RR
60: 1-6).
Adana testified at the August hearing that the reason she purchased three 5-
Liter wine boxes on August 6th and 10th–just ten and fourteen days prior to her
testimony–was because she “thinks” her best friend was in town, or that she was
going to her best friend’s house, “or something.” (6RR 98:12-15). It would not be
very difficult for most people to recall whether or not they have seen their out-of-
town best friend during the last two weeks.
At the original injunction hearing regarding Uncle Gilbey, Adana’s counsel
stated that if the trial court would see fit to deny Justin’s request for the injunction
against Uncle Gilbey, Adana would ensure that when the child and Uncle Gilbey
were together, “[Uncle Gilbey] will have, absolutely, no physical contact with the
child, not a handshake, not a hug, not a pat on the back.” (2RR 6: 4-6).
52
Regarding the child saying in a recorded phone call that she “finally” got to
fly her kite, but that it did not go as high as her grandfather’s (indicating Adana had
again violated an injunction imposed to safeguard the child), Adana’s counsel
elicited the following testimony:
Q. Did you and Sierra go fly kites, recently?
A. Yes, we did in our backyard.
…
Q. The first week of August?
A. Yes.
Q. Did Sierra make some comment about how high her kite
flew?
A. Yes, we got -- we had some really good wind, and it went
really high.
Q. When is the last time she flew a kite with her step-
grandfather?
A. I think it was my birthday last year, but I'm not positive.
Q. When was that?
A. October. But, I mean, he may have -- they may have done it,
or tried to. That was the whole thing, they tried to fly a kite,
and it didn't work out.
…
Q. Ha[ve] [the grandparents] had any contact with Sierra since
May 21, 2013?
A. No.
Q. Does Sierra say when she was flying a kite that it went
higher than the last time she flew one with grandpa?
A. Yes, she said it flew higher than her grand-dad's dragon
kite.
Q. Okay. And we're now facing an allegation that because she
said that, somehow grandpa had to be there that day?
A. Well -- and I can see why [Justin] thought that, but, no, [the
child’s grandfather] wasn't there. She was just saying that our
kite, because she was holding it, she let the string go, go, go,
and it went really high. [The child’s grandfather] had -- he
didn't get his up.
53
(6RR 22:1-25, 23:1-13) (emphasis added).
But if the child had flown the kite with Adana rather than with grandfather
on August 4, 2014, as the child reported, then Adana would have known that her
child’s kite did not go “really high” at all, much less fly away, according to the
child. In fact, the exact opposite thing happened: the child’s kite did not go “so
way up in the air,” but her “granddad’s kite did” go way up in the air. (Pet’r’s Ex
3, audio recording).
The testimony from Adana’s parents was equally as incredible. Adana’s
mother testified that Princess Tag was the game that the child played with the three
boys next door to their home (the home where Uncle Gilbey lives). (4RR 88:10-
24). Yet in a subsequent interview by CPS with the parents of the neighbor
children in question, those parents stated they had never heard of Princess Tag.
(5RR 11:11-22)
On the other hand, the trial court never questioned Justin’s credibility, nor
was his testimony ever impeached by Adana’s counsel, nor did his testimony vary
over the five hearings. Additionally, there were no concerns voiced about Justin’s
parenting skills, parenting ability, or his protectiveness, as evidenced by: 1) the
lack of concerns listed in the findings, 2) the trial court giving the child to Justin
for four months, 3) the child’s counselor and CPS testifying that they had no
concerns about Justin’s parenting or his home.
54
Incompetent Evidence
Testimony from Ms. Scott about there being emotional harm to the child if
she stayed too long with Justin or if Justin maintained custody is wholly
incompetent. Ms. Scott provided no basis specific to this child to opine that the
child would be harmed. Ms. Scott’s information has largely been fed to her from
Adana directly or from Adana through the child, since the evidence shows that
Adana has told the child to deny to Ms. Scott that she has been in contact with
Uncle Gilbey. The trial court largely recognized Ms. Scott’s testimony about harm
to the child was unsupported by fact when Ms. Scott testified that the child was
enjoying being at Justin’s Lubbock home.
Trial Court Findings
Finding 13: Justin testified that he worked in Eunice, New Mexico, which is
only a few miles over the Texas border. Justin never resided there.
Finding 16: The last sentence in this finding is not supported by the record.
In the April hearing there was considerable discussion with Ms. Scott, Ms. Robert
(CPS), and the court about transitioning to a Lubbock counselor so that Justin
would not have to drive twelve hours round trip for one fifty-minute session with
Ms. Scott. (4RR 37:17-19, 97:8-98:3). The discussion included Ms. Scott Skyping
with the child’s new counselor. (4RR 97:24-98:3). At the conclusion of the April
hearing, alternatives regarding transitioning to a Lubbock counselor were still up in
55
the air as evidenced by the trial court stating that it would like “Ms. Scott to have,
at least, one face-to-face with the child.” (4RR 99:4-6, 110-13-15). As to whether
Ms. Scott is a neutral counselor, it is very unusual for a therapist to counsel a child
for a year without verifying facts about the child from both parents or collateral
contacts. It is also very unusual for a counselor to write a letter to an attorney with
an opinion about visitation based on one-sided contact and offer-up “testimony”
should it be needed. And, still, Ms. Scott does still not believe the child had contact
with Uncle Gilbey despite the court finding that the child did have contact.
Finding 17: The inference that Justin did not participate in the child’s
counseling is not supported by the record. Justin testified that he not know that the
child was seeing Ms. Scott until a year after the child began seeing Ms. Scott
(another secret, perhaps). Ms. Scott testified that after she called Justin (a year into
counseling), he called her back within a week, and he was receptive to what she
had to say. (4RR 60:11-61:7). Ms. Scott had not heard from Justin for a few days
after she called Justin, she wrote a letter to Adana’s counsel saying that he “never”
called her back, apparently not realizing that Justin is a truck driver so that
returning calls during business hours is not always feasible. Adana also testified
that he called the counselor. (3RR 125:2-4).
Finding 18: This finding is not supported by the record. Instead, Adana
testified that she advised Justin she would be taking the child to counseling before
56
she took the child (which Justin disputes), and that Justin supposedly said that he
did not want to talk about it, and he did not say anything else. (3RR 124:3-6,
156:4-8).
Finding 23: This finding is a mischaracterization of the CAC interview, on
two levels. First, the child could not make an outcry about abuse at the hands of an
uncle that she refused to acknowledge even existed. Second, an “outcry of abuse”
was made if one considers, as did CPS, that, all of a sudden, denying the existence
of uncles (the child has two) is an implied outcry that the child was punished by
Adana (or possibly even by Uncle Gilbey) for revealing the secret. (5RR 10:6-23).
Finding 24: The absence of evidence is not itself evidence. The original
concern is still outstanding: no one knows whether the child has been sexually
abused. The new concern that arose during the CAC interview–that the child has
been utterly silenced–has not been addressed, and will not be addressed by Ms.
Scott since she does not believe the child has had contact with the uncle about
which silencing would be necessary. Ms. Scott maintains her belief even though
the child told her that there is something she has not revealed about Uncle Gilbey,
and then the child told Dr. White that she is afraid of Uncle Gilbey, but would not
say why.
Finding 27: Again, the absence of evidence is not itself evidence.
Best Interest of the Child
57
In suits regarding conservatorship and possession of, and access to, children,
the best interest of the children "shall always be the primary consideration of the
court" in suits regarding conservatorship. Tex. Fam. Code Ann. § 153.002; Lenz,
79 S.W.3d at 14. The eleven best interest of the child factors identified by the
Texas Supreme Court for guidance in modification of conservatorship cases are:
1. the desires of the child;
2. the emotional and physical needs of the child now and in the future;
3. the emotional and physical danger to the child now and in the future;
4. the parental abilities of the individuals seeking custody;
5. the programs available to assist these individuals to promote the best
interest of the child;
6. the plans for the child by these individuals or by the agency seeking
custody;
7. the stability of the home or proposed placement;
8. the acts or omissions of the parent which may indicate that the existing
parent-child relationship is not a proper one;
9. any excuse for the acts or omissions of the parent;
10. the child’s need for stability; and
11. the need to prevent constant litigation in child custody cases.
Holley, 544 S.W.2d at 371-72; V.L.K., 24 S.W.3d at 343.
The evidence shows that Justin has a close relationship with his daughter
and that she feels safe with him. The fact that she disclosed to Justin the secret
Adana told her not to tell anyone demonstrates that she is aware that Justin is a
protective parent and trustworthy parent. The evidence shows that Justin has gone
to great lengths to protect his daughter’s physical and emotional health, even if that
means multiple hearings and an appeal that he can ill-afford as a short-haul truck
58
driver. (6RR 72:7-9) The evidence shows that Justin is concerned about his
daughter’s mental health (and did drive twelve hours round-trip for fifty-minute
counseling sessions with Ms. Scott), and he wants her to continue in counseling,
although he would like the child to see a psychologist with training and experience
in trauma. (4RR 18:21-23, 5RR 44:8-22).
Justin testified that if his daughter stayed in Lubbock she would go to a five-
star elementary school five blocks from his home, and that his two daughters were
inseparable when they are together with him and his wife. (4RR 10:23-11:1). The
testimony also showed that Justin is a willing co-parent in spite of Adana’s
endangerment to the child, as evidenced by Adana speaking with Justin for forty-
five minutes about him helping Adana move to Lubbock. (6RR 12:10-17).
The remaining concerns about Adana are serious, including: 1) her
continuing to violate protective injunctions even after the child was removed, 2)
her and her family’s disbelief that Uncle Gilbey is a risk to the child, 3) her
exacting secrecy from the child, 4) her spanking the child in the mouth, 5) her
alcohol abuse, 6) her prescription narcotic use, and 7) her mixing alcohol and
narcotics.
In exacting secrecy, through punishment or otherwise, Adana is using the
child to exonerate herself for violating the injunctions. This is s serious concern all
of its own since the effect that exacting secrecy has all ready had on the child is
59
that the child is too scared to disclose something she has not told anyone yet.
Young children who are sexually abused by family members commonly delay
disclosures longer than older children or children sexually abused by non-family
members even where they were not sworn to secrecy or threatened.22
D. Abuse of Discretion
Despite the fact that the trial court stated on April 30, 2014 that it was “not
going to wait until this little girl is fondled to do something about it,” that is, in
effect, exactly what the trial court did by not providing the child any greater
protection than the child all ready had when the court discovered that the child was
playing ‘touch’ games with a registered pedophilia sex offender with the mother’s
consent and knowledge. (4RR 107:7-8). Therefore, the trial court abused its
discretion.
There is no evidence, or alternatively, insufficient evidence, to support the
trial court’s finding that it is in the best interest of the child to return the child to
Adana along with all Section 153.132 rights and no safeguards for the child. Even
the trial court’s findings do not support Adana having primary custody. Such a best
interest finding is contrary to the great weight and preponderance of the evidence.
The orders are clearly unjust (especially to the child, who will ultimately be the
one to suffer the harmful consequences), are likely the result of bias toward
22
Daniel W. Smith, Delay in disclosure of childhood rape: Results from a national
survey. Child abuse & neglect 24.2, 2000, at 283-84.
60
returning to “status quo,” and should shock the conscience of this court. Justin has
been left with no real way to protect his daughter from a sexual predator of
children, and the child has been left without protections from a mother who has
demonstrated that she will violate any injunction and abuse the child. Therefore,
the trial court abused its discretion in rending such an order, and this case should
be reversed or remanded for a new trial.
ISSUE IV.
Is a judgment on a modification void where the evidence is legally and
factually insufficient to show that an original order existed to modify?
After the default judgment, Justin’s second attorney filed a suit to modify the
original judgment, and the parties agreed to temporary orders as well as agreeing to
an enforcement action brought by Adana on the original default judgment.
Subsequently, the trail court set aside the parties’ original judgment by granting
Justin’s Bill of Review. Tex. R. Civ. Pro § 329b(f). Nonetheless, the trial court
proceeded on the parties’ agreed temporary orders on the modification suit and on
the parties’ agreed resolution to the enforcement on the original default judgment.
(CR 224).
However, one cannot modify, or agree to an enforcement of, an original
order, where an original order does not exist. Therefore, the parties’ “Order in Suit
to Modify Parent-Child Relationship” is void. (CR 291). Appellant could not locate
61
authority for finding a modification order void where no original suit exits.
However, the proposition is one of logic.
The harm Appellant suffered is the presumptions relating to a history or
pattern of past or present child neglect or physical abuse that a trial court is bound
to under an original proceeding, but not under a modification proceeding. It is
unlikely that Adana could have, or would, overcome these statutory presumptions
in an original proceeding given that there is credible evidence that Adana allowed
the child to have contact with her brother in violation of injunctions and that Adana
coaches the child and spanks her in the mouth to exonerate Adana and keep secret
Adana’s endangerment of the child.
PRAYER
WHEREFORE, PREMISES CONSIDERED, MICHAEL JUSTIN
JACOBS respectfully requests this Court reverse and render judgment removing
Adana as the parent with the exclusive right to designate the primary residence of
the child and granting Justin all other Section 153.132 rights. Alternatively,
MICHAEL JUSTIN JACOBS respectfully requests that the case be remanded to
re-try all conservatorship issues while finding that the important excluded evidence
should be admitted at the new trial. Because Justin has never been afforded a
hearing on the original suit, MICHAEL JUSTIN JACOBS respectfully requests
62
that the case be remanded for an original suit affecting the parent-child
relationship. MICHAEL JUSTIN JACOBS respectfully requests that this Court
grant him such other and further relief as to which he may show himself to be
justly entitled.
Respectfully submitted,
FRANKENBERRY LAW FIRM
4425 S. Mopac Expy, Suite 105
Austin, Texas 78735
(512) 252-9937 Telephone
(512) 852-5937 Facsimile
ATTORNEY FOR APPELLANT
MICHAEL JUSTIN JACOBS
By: _____________________
Paige Frankenberry
State Bar No. 24074226
paige@frankenberrylaw.com
ATTORNEY FOR
MICHAEL JUSTIN JACOBS
CERTIFICATE OF SERVICE
I hereby certify that a true and correct copy of the above and foregoing
Appellant Brief and Appendix has been served upon opposing counsel, Mr. Robert
Ettinger, Law Office of Robert D. Ettinger, P.O. Box 50323, Austin, Texas, 78763,
via electronic mail to robert@ettlaw.com, on the 7th day of April 2015.
______________________________
Paige Frankenberry
63
CERTIFICATE OF COMPLIANCE
I hereby certify that this Appellant’s Brief contains 14,844 words excluding
the caption, identity of parties and counsel, statement regarding oral argument,
table of contents, index of authorities, statement of the case, statement of issues
presented, statement of jurisdiction, statement of procedural history, signature,
proof of service, certification, certificate of compliance, and appendix.
______________________________
Paige Frankenberry
64
NO. 14-15-00028-CV
IN THE FOURTEENTH COURT OF APPEALS,
HOUSTON, TEXAS
MICHAEL JUSTIN JACOBS,
Appellant
v.
ADANA ALT,
Appellee
Appendix to Appellant’s Brief
List of Documents:
Tab A – [Final] Order in Suit to Modify Parent-Child Relationship
Tab B - Docket Sheet, page 1
Tab C – Findings of Facts and Conclusions of Law
Tab D – Exhibit: Wine boxes photo
Tab E – Exhibit: Trash Pull Report from Investigator
Tab F – Article: ‘Setting ‘Em Up’
Tab G – Article: Sexual grooming of children
Tab H – Article: Delay in disclosure of childhood rape
Tab I – Texas Family Code Section 32.005
Tab J – Days Maternal Grandmother picked up child from Daycare and Days
Uncle Gilbey off work or left work early
Tab A
a·" ,.FILED
t
a ~o'clock t-r M
1\ _
SEP02201~~
NO. 10-0968-F39S ·
>/.A A ~
0
IN TilE INTEREST OF . § IN TJIEUISTRIQJi&Q~wllliamson Co., TX.
§
SIERRA JACOBS § 395 JUDICIAL DISTRICT
§
A CHILD § "WaLIAMSON COUNTY, TEXAS
ORDERIN SUIT TO MODIFY PARENT-CHILD RELATIONSHIP
On October 23, 2013 the Court beard this case. On April 30, 2014 the Court heard the
motion to re-open evidence and the Court re-opened the evidence; On April 30~ 2014, May 21,
2014 and August 201 2014 additional evidence was submitted to the court during evidentiary
hearings.
Appearances
Petitioner, Justin Jacobs, appeared in person and through attorney . of record, Paige
Frankenberry, and announced ready for trial and post trial hearings.
Respondent, Adana D. Alt, appeared in person and through attorney of record, Robert D.
Ettinger, and annoUJ,lced ready for trial and post trial hearings.
Jurisdicfi()n
The Court, after examining the record and the evidence and argument of counsel, finds
that it has jurisdiction of this case and of all the parties 8.nd that no other court bas continuing,
exclusive jurisdiction ofthis case. All persons entitled to -citation were properly cited.
Jury
A jury was waived, and all questions of fact and of law were submitted to the Court.
Record
The re~ord of testimony was. duly reported by the court reporter. fox the 395 Judicial
District Coll{L
Child
The Court finds that the folloWing child is the subject <>fthis suit:
Namt:: Sierra Jacobs
Sex: female
Birth date: Match ZO, 2009
Home state: Texas
Social Security number: withheld
Driver's license number and issuing state: N/A
Findings
The Court finds that thjs order is in the best intetest of the child.
Parenting Plan
The Court finds that the provisions in these orders relating to the rights and duties of the
' .
.
parties with relation to the child, possession of and access to the child, child support,
.
and
optimizing the development of a close and continuing relationship between each party and the
child constitute the parenting plan. established by the Court.
Consetvatorship
The Court finds that the following orders are in the.best interest of the child.
IT IS ORDERED that Justin Jacobs and , Adana D.. Alt are removed as managing
conservators and that Justin Jacobs and Adana D. Alt are appointed Joint Managing Conservators
ofthe following child: Sierra Jacobs.
IT rs ORDERED that,-at all times, Adana D; Al~ as a parent joint managing conservator,
shall have the followfug rights:
1. the right to receive · information from w:zy other conserva.tor of the child
concerning the health, education, and welfare of the c¥J.d;
2. the .right to confer with the other parent to the extent possible before n:mking a
decision conce.rning the health, education, and welfare of the child;
3. the right of access·to medical, dental, psychological, and educational records of
2
the child;
4. the right to consult with a physician, dentist, or psychologist of the child;
5. the right to consult with school officials concerning the child;s welfare and
~ducatj,onal status, ind1;1ding school activities;
6. the right to attend school activities;
7. the right.to be desjgnated on the child's records as a petson to be notified in case
of an emergency;
8. the right to consent to medical, dental, and surgical treatment during an
emergency involving an immediate danger to the health and safety of tb:e child; .and
9. the right to manage the estate of the child to the extent t}le estate bas l>een created
by the patent or the parent's family.
IT XS ORDERED that, at all times, Justin Jacobs and Adana D. Alt. as parent joint
managing conservators, shall each have:the following duties:
1. the duty to infonn the other conservator of the child in a. timely manner of
significant infonna.tion concerning the health, education, and welfare of the child; and
2. the duty to infotro the other conservator of the child if the conservator resides
with for at least thirty days, marries, or intends to marry a person who the conservator knows is
registered as a sex offender under chapter 62 of the Code of.Criminal Procedure or is currently
charged with an offense for which on ~onviction the person would be required to register under
that chapter. IT IS ORDERED that tliis information shall .be tendered in the fonn of a notice
made as soon as p.(a.Cticable, but not biter than the fortieth day after thC'l date the conserv~tor of
the child begips to reside with the person or on the tenth day after the date the m.ani.age occurs,
as appropriate~ IT IS ORDERED that 1he notice must 1nclude a description of the offense that is
the basis of the person's requirement to register as a sex offender or of the offense with which the
person is charged. WARJ.'UNG: A CONSERVATOR COMMITS AN . OFFENSE
PUNISHABLE AS A CLASS C .MISDEMEANOR IF THE CONSERVATOR FAILS TO
PROVIDE THIS NOTICE.
IT IS ORDERED that, during her periods of possession, Adana D. Alt, as parent joint
managing conservator. shall have the following rights and duties:
1. the duty of care, control, protection, and reasQnahle discipline of the child;
2. 1he duty to support the child, including providing the child with clothing, food,
shelte~ and medical and dental care not involvit:lg an invasive procedure;
3
3. the right to consent for the child to medical and dental care not involving an
invasive procedure; and
4. the right to direct the moral and religious ~g of the.child.
IT IS ORDERED that, during his periods of possession, Justin Jacobs, as parent joint
ma:Qaging conservator, shall have the following rights and duties:
1. the duty of care, control, protection) and reasonable discipline of the child;
2. the duty to support the child, incl\lding providin,g the child with clotlli.n& food,
shelter) and me(ijcal and dental care not involvhig an invasive procedure;
3. the right to consent for the child to medical and dental care not involving an
invasive procedure; and
4. the right to direct the moral and religious ~ of the child.
IT IS ORDERED tb,at Adana D. Alt, as a parent joint managing conservator, shall have
the following rights and duty:
1. 1he exclusive right to designate the primary residence of the child within the State
of Texas' west ofthe Interstate 35 corridor; ·
2. the exclusive right to ~nsent to medical; dental, and surgical treatment involving
invasive procedures;
3. the exclusive right, after written consultation with Justin Jacobs, to CQnsent to
psychiatric and psychological treatment of the child. It is ORDERED that the child Temain in
thera,PY with the current therapist until discharged by that therapist;
4. the exclusive right to receive and give receipt .for periodic payments for the
support of the child and to. hold or disburse these funds for the benefit of the .child;
5. the exclusive right to represent the child in legal · action and to make othe;r:
decisions of substantial legal significance concerning the child;
6. the exclusive right to consent to marriage and to enlistment in the armed forces of
the United States;
7. the exclusive right to make d~isions concerning the child's education;
8. except as provided by section 264.0111 ofthe TeJCas Family Code, the exclusive
4
right to the services and earnings of the child;
9_. except when a guardian of the child's estate <;~r a guardian or attorney ad litem has
been appointed for the child, the exclusive right to act as an agent of the child in relation to the
child's estate if the child's action is required by a state, the. Unit~ States, or a foreign
government; and
10. the exclusive duty to manage the estate of the· child to the extent the estate has
been created by community property or the joint property of the parent.
The Court finds that; in accoxdance with section 153.001 of the Texas Family Code, it is
the public policy of Texas 1o assure that children will have frequent and continuing contact with
parents who have ~hown the ability to act in the best interest of the child, to ~ovide a safe,
stable, and nonviolent environment for the child, and to encourage parents to share in.the rights
and duties of raising their child after the parents have.separated or dissolved their marriage. IT
IS ORDERED that the prlmary residence of the child shall be the State oi Texas west of the
Interstate 35 corridor, and the parties shall not remove the child from the State of Texas west 0f
the Interstate 35 corridor for the purpose of changjng the primary residence of the child until.
modified by further order of the court of continuing jurisdiction or b~ written agreement signed
by the parties and filed with the court.
IT IS FURTHER ORDERED that Adana D. Alt shall have the exclusive right to
designate the chiJd•s ,Primary .residence witbjn the·.State of Texas west of the Interstate 35
cottidor.
IT IS FURTilER ORDERED that tlris geogt~phic restriction on the residence of the child
shall be lifted if, at the time Adana D. Alt wishes to·remove th~ child from the State.of Texas
west of the .Interstate 35 copidor for the·purpose of changing the primary residence of the child,
Justin Jacobs has moved at least 75 miles further from the WilliiUIJ.Son County line than h9lived
on October 23, 2013.
5
Possession and Access
1. Srandurd Possession Order
IT IS ORDERED that each conservator shall ~mply with all terms and
conditions of thls Standard Possession Order. IT IS ORD~RED that this Standard
Possession Order is effective immediately and applies to all periodS of possession
occurring on and after the date the Court signs this Standard Possession Order. JT IS,
THEREFORE, ORDERED;
(a) Definitions
1. In this Standard Possession Order ''school" means the primary or
secondary school .in which the child is enrolled or, if the child is not enrolled in a
primary or seeondazy school, the public schoQl district in which the child
primarily resides.
2. In this Standard Possession Order ''child'' includes each cbil~·
whether one or more, who is a subject of this suit while that child is under the age
of eighteen years and not otherwise emancipated.
(b) Mutual Agreeme.nt or Specified Tenns fur Possession
IT IS ORDERED that the conservatorS sb.a)) have possession of the child
at times mutua1ly agreed to in advance by the parties, and, in the absence of
mutual agreement, it is ORDERED that the conserva~ors shal~ have possession of
the child under the specified terms set out in this Stanchu:d Possession Order.
(c) Parents Who Reside 100 Miles qr.LessApart
Except as otherwise expressly provided in this Standard Possession Order,
when Justin Jacobs resides 100 miles or less from tb,e primary residence of the
child, Justin Jacobs shall have the right to possession of the child as follows:
1. Weekends-
On weekends that.occtu' during the regular schooltel'IIl, beginning at 6:00
p.m., on the fir~ thlrd, and fifth Friday of each month and ending at 6:00 p.m. on
the following S\mday.
·On weekends that do not occur during the regular school term, begin.ning
at 6:00p.m., on the first, third, cmd fifth Friday .of each month and ending at 6:00
p.m. on the following Sunday.
6
2. Weekend Possession Extended by a Holiday-
Except as otherw~se expressly provided·in this S1andard Po$Session Ord~,;,
if a weekend period ofpossessi<;>n by Justin Jacobs begins on a .studcnt holiday or
a teacher in-servi<::e day that falls on a Friday during the .regular schoc;>l tenn, as
determined by the school in which the child is enrolled, or a federal, state, or local
holiday that falls on, a Friday during the summer months when school is not in
session, that weekend period of possession shall begin at 6:00 p.m. on the
immedi~tely preceding Thursday.
Ex~pt as otherwise exp~ssly provided in this Standard Possession Order,
if a weekend period of possession by Justin Jacobs ends on or is immediately
followed by a student holiday or a teacheJ,' in-service day that falls on a Monday
during the regular school term, as determined by the school in which the child is
enrolled, or a federal, state, or local holiday that falls on a Monday during the
summer months when school is not in session, ·that weekend }leriod of possession
shall end at 6:00p.m. on that Monday.
3. Thursdays- On Thursday of each week during the regular school
term, beginning at 6:00 p~m. ·and endmg at 8:00p.m.
4. Spring V-acation in Even-Numbered .Years - In even-numbered
years, begiml.ing at.6:00 p.m. on the day the child is dismissed from school for the
school's spring vacation and ending at 6:00 p.~. on the day before school resumes
after that vacation.
5. Extended Summer Possession by Justin Jacobs-
With Written Notice by April 1 • If Justin Jacobs gives· Adana D. Alt
written notice by April 1 of a year specifying an extended period or periods of
summer possession for that year, Justin Jacobs shall have possession of the child
for thirty days beginning no earlier than the day· after the child's school is
dismissed for the summer vacation and ending rio later thatr seven days before
school resumes at the end of the summer va·cation in that year, to be exercised in
no more than two separa.te periods of at least seven consecutave days each, with
each period of possession beginning and ending at 6:00 p.m on each applicable
day, as specified in the written notice. These periods of possession shall begin
and end at 6:00 p.m. on each applicable day.
Without Written Notice by April 1 • If Ju.stin Jacob$ does not give Adana
D. Alt written notice by April t of a year specifying an extended period or periods
of sum.mex- possession for that year, Justin Jacobs shall have possession of the
child for thirty consecutive days 41 that ye~ be~nning at 6:00 p.m. on July l and
ending at 6:00p.m. on July 31. ·
Notwithstanding the Thursssession - Each conservator is ORDERED
to give notice to the person in possession of' the child on each occasion that the
conservator will be unable to exercise' that conservator's right of possession for
any specified period. ·
8. Written Notice - Written notice. inc]ucling notice provided by
electronic mail or facsimile, shall be deemed to have been timely made ii received
or, if applicable, po~ked bef<:>re or at the time that notice is due.
9. Changing weekend visitation-If Justin Jackson gives Adarl.a Alt 90
dayS Written notice 'he may substitute a znd or 4th Weekend for a 15\ 3rd OX' 5th
weekend in any given .month.
This concludes the Standard Possession Order.
2. Duration
The periods- of possession ordered above apply to the child the subje~t of this suit
while that child is under the age of eighteen years and not otherwise emancipated.
3. Noninterference with Possession
Except aS expressly provided herein, IT IS ORPERED tllat neither conservator
12
shall take possession of the child during the. other conservatoris period of possession
unless there is a prior written agreem.~nt signed by both conservators or in_case of an
emergency.
4. Termination ofOrders
The provisions of this or.der relating to conserva~orship, possession, or access
terminate on.the maniage of Justin Jacobs to Adana D. Alt unless a nonparent or agency
has been appointed conservator of the child under.chapter 153 of the Texas Family Code.
5. Long-Distance Access a1ui Visitation
IT IS ORDERED that, until a child reaches the age of five years, the following
arrangements for the travel of that chlld shall control:
Adult to Accompany Child- IT IS ORDERED that Justin Jacobs shall trave1 with
the child between the residence of Adana D. Alt and that of Justin Jacobs at the beginning
and end of each period of possession. In place of this requirem~nt~ Justin Jacobs is
authoriT.ed to designate a responsible adult known to the child and to the mother to travel
with the child betWeen the residence of A that employer shall
constitute a credit' against the child support obligation. Payment of the full amount of child
support ordered paid by this order through the means of withholding from earnings shall
dischafge the ·child support obligation. If the amount withheld from eamings and credited
against the child support obligation is less than 100 percent" of the amount ordered to be paid by
this order, the balance due remains an obligation of Justin Ja~obs, and it is ·hereby ORDERED
that Justin Jacobs pay the balance due directly to the state disbmsement unit specified below.
On this date the Court signed an Income Withholding for Support.
Payment
IT IS ORDERED that all payments shall be made· through the state. disbursement unit at
Texas Child Support Disburiement Unit, P.O. Box 659791, San Antonio, Texas 78265-9791, and
thereafter promptly remitted to Adana D. Alt for the support ofthe child. IT IS ORDERED that
each party shall pay, when due, all fees· charged to that pw-ty by the state disbursement unit and
any other agency statutorily authorized to charge a fee.
Change of Employment
IT IS FURTHER ORDERED that.Justin Jacobs shall notify this Court and Adana D. Alt
18
by U.S. certified mail, retum receipt requeste4, of any change of address and of any tennin.ation
of employment. 1bis notice shall be given no later than seven days after the change of address
or the tennination of employment. This notice or a subsequent noti~e shall also provide the
current address of Justin Jacobs and the name and address of his current employer, whenever that
infoi'II).ation becomes available.
Clerk's Duties
IT IS ORDEREP that, on the reguest of a prosecuting attomey1 the title IV-D agency, the
friend of the Court, a domestic relations office, Adana D. Alt, Justin Jacobs, or an attomey
representing Adana D. Alt or Justin Jacobs, the clerk of this C::ourt shall cau.se a certified copy of
the Incoroe W ithholding for Support to be' delivered to any employer.
Health Care
1. IT IS ORDERED that Justin Jacobs and Adana D. Alt shall' each provide medical
support for the child as set oui in this order as additional child support for as long .as the Court
may order Justin Jacobs and Adana D. Alt to provide $Upport for the child under sections
154.001 and 154.002 of the Texas Family Code. Beginning on the day Justin Jacobs and Adana .
D. Alt's actual or potential obligation to support th~ child u.o,der sections 154.001 and 154.002 of
the Family Code terminates, IT. IS ORDERED that Justin Jacobs and Adana D. Alt are
discharged from the obligations set forth in this medical support order, except for any failure by
a parent to fully comply with those obligations before that 'date. IT IS FURTHER ORDERED
that lhe cash medical support payments ordered below are payable · through the state.
disbursement unit and subject to the provisions for withholding from earnings provided above
for other child support payments.
2. Definitions -
\9
"Health Insurance" means insuran,ce coverage ~at provides basic health-care services,
including usual physician services, office visits1 hospitali~on, and J~boratory, .X-ray, and
emergency services, that may be provided through a health maintena.nce organization or other.
private or public organizatio~ other than medical assistance under chapter 32 of the Texas
Human Resources Code.
".Reasonable cost" means the cost of health in~wance coverage for a child that doe& not
exceed 9 percent of Justin Ja.oobs •s annual resouroes, as described by section 154.06i(b) of1he
Texas Family Code.
"Reasonable and necessary he.cUth-care expenses not paid by ~ur!:'U),ce and incurred by or
on behalf of a child" include, without limitation, any copayments for office visits or prescription
drugs~ the yearly deductible, if any, a:o,d medical, surgical, prescription drug, mental bealth-care
services, dental, eye care,. ophthalmological, atld orthodontic charges. These reasonable and
necessary health-(::are expenses do not includ;e e~penses for travel to and from the b;calth-care
provider o.r for nonprescription medication.
"Furnish'' means:
a. to hand deliver the docwnent by a person eighteen years of age or older
either to th~ reojpient ~r to a person who is eighteen years of age or older
and permanently res~ des with the recipient;·
b. to deliver the document to the recipient by certified mail, return receipt
requested, to the recipient's last known·mailing or residence address; or
c. to deliver the document to the recipient at the recipient's last known
mailing or residence address using any person or ent.\ty whose principal
business is that of a courier or deliverer of papers or documents either
20
within or outside the United States.
3. Findings on Health Insurance Avail~ility- Having considered the cost,
accessibility, and quality ofhealth insurance coverage available to thC? parties, the Court finds:
· Health insurance is available or is in effect for the · child thro~ Adana D. Alt's
employment or membership in a union, trade assoenses directly with the insurance
canier with and from whom ·coverage is provided for .the benefit of the child ~d receive
payments direct~y from the insurance company. Further, for the sole. purpose of section
1204.251 of the Texas Insurance Code, Justin Jacobs is designated the managing conservator or
possessory conservator of the child.
The parry who is caxrying the health insurance policy covering the child is ORDERED to
submit all forms required by the inswance company for payment or reimbursement of health-
care expenses incurred by either party on behalf of the child to the .insurance carrier within
fifteen days of that party's receiving any fonn. receip~ bill, or st.atemeut reflecting the expenses.
8. Constructive Trust for Payments Received ~ IT IS ORDERED that any insurance
payments receiv~ by a party fi;Qm the health insurance carrier as reimbursement for health-care
expenses incurred by or o.n behalf ofthe child shall belong to th,e party.who paid those expenses.
IT IS FURTHER ORDERED that the party. receiving ·the insur~ce payments .is designated a
constructive trustee to receive any insurance checks or payments for health-care expenses paid
by the other party, and the: party canying the pollcy shall endorse and forward. the checks or
payments, along with zmy explanation of benefits received. to·the other party within three days of
24
.receiving them.
9. WARNING· A PARENT ORDERED TO PROVIDE HEALTH INSURANCE
OR TO PAY THE OTHER PARENT ADDITIONAL CHILD SUPPORT FOR TilE COST OF
HEALTH INSURANCE WliO FAILS TO DO SO IS LIABLE FOR NECESSARY MEDICAL
'
EXPENSES OF Tiffi CHILD, WITHOUT REGARD TO WHETIIER THE EXPENSES
WOULD HAVE BEEN PAJD IF HEALTI-I INSURANCE~ BEEN PROVIDED, AND FOR
THE COST OF HEALTH INSURANCE PREMIUMS OR CONTRIBUTIONS, IF ANY, PAID
ON BEHALF OF TI-l£ CHILD.
Miscellaneous Child Support Provisions ,
No Credit for Infonnal Pa.ymems
IT IS ORDERED that the child support as pres~bed in this order shall be exclusively
discharged in the manner ordered and that any direct paymel;l.f.s made by Justin Jacobs to Adana.
D. Alt or any expenditures incurred by Justin Jacobs during Justin Jacobs's periods of possession
of or access to the child, as prescribed in this order, for food, clothing, gifts, ttavel, shelte:r, or
entertainment are deemed in addition to and not in lieu of the support ordered in this order.
SUpport as Obligation of Estate
IT IS ORDERED that the, provisions for child support in this oxder shall be an obligation
of the estate 'Of Justin Jacobs and shall not tetminate on the death of Justin Jacobs. PaymentS
received for the benefit of the child, including payments fr~m the Social Security
Administration, Department of Veterans Affairs or other governmental agency or life insurance
proceeds, annuity payments, trust distributions, or retirement survivor benefits, shall be a credit
against this obligation. Any remaining balance of the child suppOrt is an obligation of Justin
Jacobs's estate.
25
Termination of Orde.cs on Marriage of Paxties but Not on Death of Obligee
The provisions of this order relating to current child supporllerm.inate on the m.aniagc of
Justin Jacobs to Adana D. Alt l,l.Q.},ess a nonparent or agency has qeeu :appointed co~ervator of
the child \lnder chapter 153 of the Texas Family Code. An obligation t9 pay child support under
this ~rder does not terminate on the death of Adana D. Alt but continues as an oblisatl:on to
Sierra Jacobs.
Medical Notification
Each party is ORDERED to infonn the other party within 24 hours of any meoical
condition of the child requiring surgical intervention, hospitalization, or both.
Within 30 days after the Court signs this order~ each party is ORDERED to execute -
1. all necessary releases pursuant to the Health Insurance Portability and
Accountability Act (HJPAA) and 45 C.F.R. ·section 164.508 to pennlt·the other conservator to
obtain h,ealth-c,:are information regarding the child; and
2. for all health-care providers of the child, an authorization for disclosure of
protected health infonnation to the of:b.er consefVator pursuant to the HIPAA and 45 C.F.R.
section 164.508.
Each pa,rty is further ORDERED to designate the other conservator as a person to whom
protected health infonna~ion regarding the child may be disclosed whenever the party executes
an authorization for disclosure <>f protected health information pursuant to the HIPM and 45
C.F,R. section )64.508.
Injunctive Relief
The Court finds that. because of tb.e condu,ct of Justin Jacobs, a. pennan~nt injunction
against him should be granted as appropriate relief because there is no adequate remedy at law..
26
The.~ permanent injunction granted. below shiLl! be effective immediately and shall be
binding .on Justin .Jacobs; on his agents, servants, employees, and attorneys; and on those persons
in active concert or participation with them who re~ve actual notic~ of this order by pexsona1
service or otherwise.
IT IS ORDERED that Justin Jacobs is permanently enj~il}ed from:
1. ingesting any alcohol 24 hours prior to and .during any period of
possession of the child.
The Court finds that, because of the conduct. of Adana D. Alt, a permanent injunction
against her should be granted as appropriate reli,ef because there is no adequate remedy at 1.8.w.
The permanent injun.ction granted below shall be effective ixqmediately and shall be
binding on Adana D. Alt; on her agents, servants. employees> and attorneys; and on those
persons in active concert or participation with them who receive acroal notice of this order by
personal service or otherwise.
IT IS ORDERED that:
1. Adana Alt or her agen,ts or persons in active concert or participation with
1h.em wb.o receive actual notice of this order by personal service or
otherwise, w:e enjoitied from permitting the child, Sieua Daoielle
Jacobs. from being in the presence of, or within 500 feet of,
Oilbcrto Eustaquio Buitron at any time.
Service of Writ
Peti.tioner and Respondent waive issuance and service of the writ of injunction, by
stipulation.. IT IS ORDERED that P~titioner and Respondent shall be deemed io be duly served
with the writ of injunction.
Required lriformation
The informatio~ req~ed for each party by ~on 105.006(a) of the Texas Family Code
is as follows:
27
Name: Justin Jacobs
Social Security number: withheld]
Driver's license number: lssuing state: Texas
Cunent residence address:
Mailing address:
Home telep)lone number:
Name of employer:
Address of employment:
Work telephone number.
Name: Adana D. Alt
Social Security number: withheld
Driver's license number: 0899342 Issuing state: Tex.as
Current resi.dence address: 300 Carl Shlpp, Liberty Hill, Texas 78()42
Mailing address: 3oo Car1 Shipp, Liberty Hill, Texas 78642
Home telephone number: 51.2 -538-8138
Name of employer: Work Po:rc~ Solutions
Address of employment: 6505 Airport Blvd., Suite 101-c, Austin, T~ 78752
Work telephone number: 512-597-7191
Required Notices
EACH PERSON WHO lS A PARTY TO nus ORDER TS ORDERED TO NOTIFY
EACH 01HER PARTY, THE COURT, AND THE STATE CASE REGISTRY OF ANY
CHANGE IN tHE PARTY'S CURRENT RESIDENCE ADDRESS, MAILING ADDRESS,
HOME TELEPHONE NUMBER. NAME OF EMPLOYER, ADDRESS OF EMPLOYMENT~
28
DRIVER'S LICENSE NUMBE~ AND WORK TEL~PHONE NUMBER. . THE PARTY IS
ORDERED TO GIVE NOTICE OF AN INTENDED CHAN<;:JE IN ANY OF TifE REQUIRED
INFORMATION TO EACH OTHER PARTY,
. . THE STATE CASE
THE COURT, AND
REGISTRY ON OR BEFORE THE 60TII DAY BEFORE THE -INTENDED CHANGE. IF
THE PARTY DOES NOT KNOW OR COULD NOT HAVE KNOWN OF TiiE CHANGE IN
SUFFICIENT TIME TO PROVIDE 60-DAYNOTICE, TilE PARTY IS ORDERED TO GIVE
NOTICE OF THE CHANGE ON OR RBFORE TIIE FIFTH DAY AFTER TilE DATE THAT
THE PARTY KNOWS OF THE CHANGE.
THE DUTY TO FURNISH THIS INFORMATION TO EACH Ol1IER PARTY, THE
COURT, AND UIE STATE CASE REGISTRY CONTINUES AS LONG AS ANY PERSON,
RY VIRTUE OF THIS ORDER, IS UNDER AN OBLIGATION TO PAY CHILD SUPPORT
OR ENTffiED TO POSSESSION OF OR ACCESS TO A CHILD.
'FAILURE BY A PARTY TO _OBEY THE ORDER OF THIS COURT TO PROVIDE
EACH OTHER PARTY, THE COURT, AND THE STATE CASE REGISTRY WITH THE
CHANGE IN THE REQUIRED INFORMATION MAY RESULT IN .PURmER LITIGATION
TO ENf'ORCE 1HE ORDER, INCLUDING CONTEMPT OF COURT. A FINDING OF
CONTE?vfPT MAY BE PUNISHED BY CONFINEMENT IN JAIL FOR UP TO SIX
MONTHS, A FINE OF UP TO $500 FOR EACH VIOLATION, ANP A MONEY JUDGMENT
FOR PAYMENT OF ATTORNEY'S FEES AND COURT COSTS.
Notice shall be given to the other party by delivering a copy of the notice to the party by
regi~ered or certified mail, return receipt requested. Notice shall be ·gjven to the Court by
delivering a copy of the notice either in per5on to the clc;rk of this Court or by registered ~r
certi1,led mail addressed to the clerk. Notice shall be'given to the state case registry by mailing a
29
copy of the notice to State Case Registry, Contract Services Section, MC046S, P.O. Box 12017,
Austin, Texas 78711-2017.
NOTICE TO ANY PEACE OFFICER OF mE STATE OF TEXAS: .YOl). MAY USE
REASONABLE EFFORTS TO ENFORCE THE TERMS OF CIDLD CUSTODY SPECIFIED
IN TillS ORDER. A PEACE·OFFICER WHO RELIES ON THE TERMS O.F A COURT
ORDER AND 'fHE OFFICER'S AGENCY ARE ENTITLED TO TilE APPLICABLE
lMMUNITY AGAINST ANY CLAIM1 CIVU, .OR OTHERWISE; REGARDING THE
.
OFFICER'S GOOD FAITH ACTS PERFORMED IN THE SCOPE QF THE OFFICER'S
DtmES IN ENFORCING THE TERMS OF THE ORDER THAT RELATE TO ClflLD
CUSTODY. ANY PERSON WI:iO KNOWINGLY PRESENTS FOR ENFORCEMENT AN
ORDER THAT IS INVALID OR NO LONGER IN EFFECT COMMITS AN OFFENSE TIJAT
MAY BE PUNISHABLE BY CONFINEMENT m JAIL .FOR AS LONG AS TWO YEARS
AND A fiNE OF AS MUCH AS $10t000.
Warning.s
WARNINGS TO PARTIES: FAILURE TQ OBEY A COURT ORDER FOR CHILD
SUPPORT OR FOR POSSESSION OF OR ACCESS TO A CHILD MAY RBSULT IN
FURTHER Ln10ATION TO ENFORCE Uffi ORDER, INCLUDING CONTEMPT OF
COURT. A FINDING OF CONTEMPT MAY BE PUNISHED BY c ·ONFINEMENT IN JAIL
FOR UP !0 SIX MONTHS, A FJNJ:!, OF UP TO $500 FOR BACH VIOLATION, AND A
MONEY JUDGMENT FOR PAYMENT OFATTORNBY'S.FEES ANP COURT COSTS.
FAILURE OF A PARTY TO MAKE A CHILD SUPPORT PAYMENT TO THE
PLACE AND IN THE MANNER REQtJlREP BY A COURf ORDER MAY RESULT IN THE
PARTY'S NOT RECEIVING CREDIT FOR MAKING THE PAYMENT.
30
FAlLURE OF A PARTY TO PAY CHILD SUPPORT DOES NOT nJSTIFY
DENYING THAT PARTY COURT-ORDERED POSSESSION OF OR ACCESS TO A
CHILD. REFUSAL BY A PARTY TO ALLOW POSSESSION OF OR ACCESS TO A
CHILD DOES NOT JUSTIFY FAlLURE TO PAY COuRT.:.ORDERED CHILD SUPPORT TO
THAT PARTY.
Attor11ey's Fees
IT IS ORDERED that attorney's fees are to be borne by the.party who incurred them.
Costs
IT IS ORDERED that costs of court are to be borne by the party who incurred them:·
Di$Charge from Discovery Retention Requirement
IT IS ORDERED that the parties and theiP respective attorneys are discharged from the
requirement of keeping and storing the documents produced in this case in accordance with rule:
191.4(d) of the Texas Rules of Civil Procedure.
Additional Orders
It is Ordered that Adana Alt complete the parenting class which she began in July 2014.
IT IS FURTHER ORDERED that Michael Justin Jacobs begin a parenting cl~s in Lubbock,
Texas during September 2014 and co:mplete the class as it is scheduled.
ReliefNot Granted
IT IS ORDERED that all relief requested in this case and not eX.p:ressly granted is denied.
All other terms of the prior orders not specifically modified in this order shall remain in full
force and effect. All child support obligations of Justin Jacobs contained in the Temporary
Orders rendered by this court remain in full force and effect to the extent they have not been
paid.
31
It is so ordered.
'-"
SIGNED and ENTERED this the ¢~ '- day of August, 2014.
32
Tab B
Judge's Family Law Docket, Williamson County, Texas
10-0968-F395 April 07, 20 I 0
DATE ORDERS
IN THE I~'TEREST OF
5 ..I "'I- £5 TEMPORARY RESTRAINING ORDER GRANTED: hearing set for SIERRA DANIELLE JACOBS
_ _M on , 20_ _. A CHILD
HEARING FOR TEMPORARY ORDERS set for _ _M. on - - - - - - - - f - f
TEMPORARY ORDERS:
emporary rnJunction granted. The Petjtjoner/Respondent is appointed Temporary Managing
Conservator of minor children and Petitioner/Respondent is appointed Temporary Possessory
395TH JUDICIAL DISTRICT COURT
Conservator. Temporary child support (and alimony) is set in the $ er
PARENT-CHILD RELATIONSHIP
(week), (each two weeks), (month) commencing on day of , 20_.
Inventory ordered filed on or before _ _day of , 20_. Temporary use of ll======t============;
DATE
!-/~lit
awarded to Petitioner/Responc1ent. ·!~.,,,
JUDGE PRESIDING
TEMPORARY ORDERS APPROVED AND SIGNED.
FINAL DECREE:
Evidence heard, divorce granted. Number of children involved under the age of eighteen._ __
6
The Petitioner/Respondent is appointed Managing Conservator of the minor children and Petitioner/
Responc1ent is appointed Possessory Conservator. Child support set in the amount of$_ _ __
per (week), (each two weeks), (month) commencing on day of , 20__.
through District Clerk's Office. Wife's former name restored to her_ _ _ _ _ _ _ _ _ __
_ _ _ _ _ . Attorney's fees in the amount of$._ _ _ _ awarded to _ _ _ _ _ _ __
- - - - - - - - - - - · Wages withholding ordered. Property settlement approved/or
property divided as follows - - - - - - - - - - - - - - - - - - - - - -
'i f!i ,,1.- ~~-yL-:.;..::,.;_:;___:_______;.+-~;,...--=--~,...---r--r"'-!----:--~-----"1
FINAL DECREE:APPROVED AND SIGNED.
JUDGE PRESIDING
~----~W~A~G~E~W~I~T~H~HO~L~D~I~NG~A~P~P~RO~V~E~D~A~N~D~SI~G~N~EftD.----------------~I1/A~;.3
tt:l:
~----------------------------------------~ 1 hj;rp3
Tab C
Nov 14 2014 12:30 395th District Court 512 943-1187 page 1
MICHAEL JERGINS
District Judge
395th Judicial District
Williamson County
November 14, 2014
Ms. Paige Franken berry Mr. Robert D. Ettinger
Attorney at Law Attorney at Law
4425 South Mopac, Ste I 05 P.O.Box 50323
Austin, Texas 78735 Austin, Texas 78763
Fax: 512-852-5937 Fax: 512- 478-9542
Re: RE: ITIO Jacobs, 10-0968-F395
Dear Madam & Sir:
Enclosed are Findings of Fact and Conclusions of Law, filed this date.
Respectfully,
erg ins
,3951h Judicial District Court
405 Martin Luther King St., No. 15
Georgetown, Texas 78626
(512) 943-1395
Fax (512) 943-1187
Nov 14 2014 12:30 395th District Court 512 943-1187 page 2
. . "FILED •L\.
at II,:;> Do• clock I \ M~ .
11tiplor, Lk. WA~497l
Asslrn ment was to d rive to 300 Carl Shipp Dr. Ub@rty Hill, TX and coll@ct contents of trash prior to
the weekly trash pickup at 6:00 AM for that location
lnvest~UQ!l..:. Orlve to Subject's re>idence after Subject leaves In the morning, collect all trash, and ta ke the
trash Ill a ~par at@ location to analyze the contents -look for anvthi~ related to Subject's family, alcohol,
cigarettes, drugs - l~gal o.r oth~rwlse, etc.
8/ 15/1014 4:40 AM Started drive to Subject's resldl!nc~
~: lSAM Arrived at Subject's residence. The Subject was home, putting items in her car. l
c;ontinued down the street and par1c.ed at a separate loution in order to wait until
Subjett left.
5:19AM Noticed Subject d rive down the street. I drove bae:k to tile Subject's resldencl!.
~:20AM Arrived at the Subject's residence and collected 2 white plastic trash bags and 3
brown paper Dollar General bags. The only oth"r contents In the trash bins were
2 piua boxes. I noticed a ca r driving down the street towa rds my location, I got
back In to mv veh~le ;md iiS I drove away, noticed the S1.1bject returning to the
residence.
5:55AM Remov"d collected trash fro m vehidc and put ln a safl! location to a nalyte at a
Later time in the eve ning.
lO:OOPM - 11:00 PM Sorted trash from S1.1bject's residence. The 3 Oollar Ge neral bags contained 6
empty boxes of franlia wine, whlli! the 2 white plastic trash bags conta ined coke
cans, 3 cans o f Miller Lite filled with cigarettes, a water bottle lllletin, Texas 78704 Office: (512) 653-lOH
,.
JG
'k ............ - ........ Uic. . AU971
Adana AJt August 17, 2014
S/19/2014 U:OO PM -12 :00 AM Final repOtl ge!lentted
The Qrirette butu lound Wfft the opetted tmnd of the Subject (t.Urtboto IOCM). P~ ~the-r
rNfl was not releYantto the investigation (credit appllc.Jtioru).
The prescrrption ~ckeu found ~howed tnl! Sub)t!Cl uslns her parent'saddreu listed (140 Round Up
Dr. Uberty Hill, TJ() for her pre.scription orders from HEB
During a compn!henslve bad&ground check, the- Subject's brother, who has 1 criminal record showtna
he was convicted of aura >lOlled sexual 01.1sault and poues~oon of child porn