NUMBER 13-18-00648-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF J.P. AND A.P., CHILDREN
On Appellant’s Emergency Motion for Stay Pending Appeal.
ORDER OF ABATEMENT
Before Chief Justice Contreras and Justices Benavides and Hinojosa
Order Per Curiam
Appellee Derek Payne has filed a Motion to Clarify our order of abatement dated
March 22, 2019. Appellant Alana Etheridge has filed a response to the motion. We grant
appellee’s motion, withdraw our March 22, 2019 order, and substitute the following in its
place.
Appellant contests the “Amended Order in Suit to Modify Parent-Child
Relationship” signed by the trial court on October 26, 2018. The order provides in part
that appellant shall have possession and access to the parties’ minor children only “as
recommended by Kate Rodriguez, the Court ordered therapist for the family the subject
of this suit.” Appellant contends that this provision is illegal and void. Appellant has filed
an Emergency Motion for Stay Pending Appeal alleging that Rodriguez informed
appellant in November 2018 of her intent to withdraw from the case, and that the
withdrawal was confirmed in February 2019. Appellant argues that the therapist’s
withdrawal “has rendered it impossible for [her] to comply with the Order’s provisions”
and, as a result, she has been effectively “entirely stripped of her visitation and access
rights.” Appellant asks this Court to (1) suspend enforcement of the October 26, 2018
amended order until such time as the appeal may be decided and (2) order instead that
a temporary order rendered by the trial court on September 25, 2017 will govern the
parties during the pendency of the appeal. See TEX. R. APP. P. 43.6.
Because an appeal has been perfected and the trial court no longer has jurisdiction
to render temporary orders under the family code, this Court has exclusive plenary
jurisdiction over the case. See In Interest of E.W.N., 482 S.W.3d 150, 157 (Tex. App.—
El Paso 2015, no pet.) (citing TEX. FAM. CODE ANN. § 109.001(b-1) (West, Westlaw
through 2017 1st C.S.) (providing that a party may not file a motion for temporary orders
pending appeal “after the date by which that party is required to file the party’s notice of
appeal”)). We are authorized to suspend enforcement of the trial court’s order pending
the outcome of the appeal. See TEX. FAM. CODE ANN. § 109.002(c) (West, Westlaw
through 2017 1st C.S.); see also TEX. R. APP. P. 43.6. However, in this case, facts have
developed since the rendition of the order on appeal which may affect the propriety of the
order with respect to the best interests of the children. See TEX. FAM. CODE ANN.
§ 156.101(a) (West, Westlaw through 2017 1st C.S.) (stating that a trial court’s order
modifying conservatorship and possession must be in the best interest of the child). In
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particular, the withdrawal of the court-ordered therapist thwarts the visitation provision in
the amended order and was not known to the trial court at the time it signed the order.
Regardless of the merits of the appeal, the trial court must be permitted to consider,
in the first instance, the effect of the therapist’s withdrawal on the best interests of the
children. See Interest of E.W.N., 482 S.W.3d at 156–57 (observing that “[a]ppellate
courts are not fact finders and we do not take testimony,” and noting that “nothing in Texas
jurisprudence prevents a litigant from filing a motion with the court of appeals, explaining
circumstances [where facts have developed after the trial court lost jurisdiction to render
temporary orders], and asking the court to abate the appeal and remand to the trial court
for an emergency hearing to protect the child”).
Accordingly, we DENY appellant’s emergency motion for stay pending appeal.
Instead, without considering the merits of the appeal, we hereby ABATE the appeal and
REMAND to the trial court with instructions to, as soon as practicable, hold an emergency
hearing in this matter regarding the best interests of the children. See id. The trial court
must determine whether the court-ordered therapist has withdrawn from the case. If so,
the trial court must render a new order ensuring that the best interests of the children are
protected in light of the therapist’s withdrawal. If not, the trial court must render an order
stating that the therapist has not withdrawn. The trial court may also render any orders,
consistent with the law and as justice may require, to protect the best interests of the
children during the pendency of the appeal.
The new order(s) shall be included in a supplemental clerk’s record and must be
filed with the clerk of this Court on or before thirty (30) days from the date of this order.
Further, the trial court is directed to ensure that a reporter’s record of the emergency
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hearing, and any other hearings which may be held during abatement of the appeal, is
filed with the clerk of this Court on or before thirty (30) days from the date of this order.
The appeal will be reinstated upon filing of the supplemental records as set forth herein.
IT IS SO ORDERED.
PER CURIAM
Delivered and filed the
26th day of March, 2019.
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