in Re J.H.

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-22-00457-CV
___________________________

IN RE J.H., Relator

Original Proceeding
89th District Court of Wichita County, Texas
Trial Court No. 190,898-C

Before Sudderth, C.J.; Kerr and Wallach, JJ.
Memorandum Opinion by Justice Kerr
 MEMORANDUM OPINION

Relator J.H. (Father) seeks mandamus relief from interlocutory orders entered

by the trial court after Real Party in Interest N.B. (Mother) filed a petition to modify

in their suit affecting the parent–child relationship (SAPCR).1 We deny Father’s

petition in part and conditionally grant it in part.

Background

Father and Mother were finally divorced on April 22, 2020. 2 Father and Mother

were appointed joint managing conservators of their three minor children

(collectively, the Children), but Mother had the exclusive right to designate the

Children’s primary residence (within certain specified counties). By prior agreement of

the parties, Father’s second period of extended summer possession for 2022 was to

begin July 22, 2022. That day, Father drove to their agreed-upon pick-up/drop-off

location in Wichita Falls to pick up the Children, but Mother did not come to the

location or surrender possession of the Children to Father. Instead, she texted him

that the Children would “not be coming” with him that day and would remain in her

possession “until further notice.”

Father filed a petition for a writ of habeas corpus commanding that the

1
To protect the Children’s identities, we identify Father and Mother by their
initials only. See Tex. Fam. Code Ann. § 109.002(d).

We will refer to that Agreed Final Decree of Divorce dated April 22, 2020, as
2

the “Divorce Decree.”

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Children be brought before the court and surrendered to Father. On August 5, 2022,

Mother filed a petition to modify the parent–child relationship. She attached to her

petition affidavits from herself and her current husband alleging that, beginning on

July 12, 2022, the Children had made statements alleging that Father made them take

showers with him and that they did not like it or want to do that. According to

Mother, all three Children also said that Father “goes skinny dipping with them” in

his backyard pool. Mother and her husband arranged for the two older Children to

see a counselor, Arthur J. Madden, who was previously unknown to Mother but had

been seeing her current husband’s children for many years. The trial court issued a

temporary restraining order on August 5 and set a hearing for August 16, 2022.

Meanwhile, Mother amended her petition, and Father moved to enforce the standard

possession order from the Divorce Decree.

The trial court held an evidentiary hearing on August 24, 2022. Father, Mother,

and Madden all testified at the hearing, as did a CPS investigator and one of the

Children’s teachers. Over Father’s objections, Mother was allowed to introduce

hearsay statements of the Children into evidence. On August 30, 2022, the trial court

issued temporary orders appointing Mother as temporary sole managing conservator

and Father as temporary possessory conservator. The trial court also restricted

Father’s contact with the Children to supervised visitation for two hours a week in

person under the supervision of Charlotte Marsh, a licensed marriage and family

therapist, at her office in Wichita Falls. The trial court ordered that this supervised

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visitation schedule continue until Arthur Madden submits a report to the trial court

and to all counsel indicating that further contact between Father and the Children is in

the Children’s best interest. The Children were ordered to continue receiving

psychological treatment through Madden, and Madden was ordered to submit a

report to the trial court—no later than six months after the date of the order—stating

whether further contact between Father and the Children would be in the Children’s

best interest. The trial court also signed orders denying Father’s petition for habeas

corpus and denying his motion for enforcement.3 It is from these orders that Father

now seeks mandamus relief in this court. 4

Discussion

I. Mandamus

Mandamus relief is an extraordinary remedy. In re Acad., Ltd., 625 S.W.3d 19,

25 (Tex. 2021) (orig. proceeding). The party seeking mandamus relief must show both

that the trial court clearly abused its discretion and that the party has no adequate

3
Father also attempted to appeal the trial court’s order denying his motion for
enforcement, but we dismissed the attempted appeal for want of jurisdiction. In re
H.H., No. 02-22-00370-CV, 2022 WL 17494595, at *1 (Tex. App.—Fort Worth Dec.
8, 2022, no pet. h.) (mem. op.).
4
On November 22, 2022, after Father filed his petition for mandamus, the trial
court granted Mother’s subsequent application for a temporary restraining order and
ordered that Father be temporarily restrained even from “[h]aving supervised access
to or possession of the children under Charlotte Marsh’s supervision until at such
time a hearing may be held.” On Father’s motion, we stayed this temporary
restraining order pending further order of this court.

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remedy by appeal. In re Allstate Indem. Co., 622 S.W.3d 870, 875 (Tex. 2021) (orig.

proceeding).

A trial court abuses its discretion when a decision is arbitrary, unreasonable,

and without reference to guiding principles. Id.; see Walker v. Packer, 827 S.W.2d 833,

839–40 (Tex. 1992) (orig. proceeding). We defer to a trial court’s factual

determinations that have evidentiary support, but we review the trial court’s legal

determinations de novo. In re Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009)

(orig. proceeding). An error of law or an erroneous application of the law to the facts

is always an abuse of discretion. See In re Geomet Recycling LLC, 578 S.W.3d 82, 91–

92 (Tex. 2019) (orig. proceeding).

An appellate remedy’s adequacy has no specific definition; “the term is ‘a proxy

for the careful balance of jurisprudential considerations’” that implicate both public

and private interests, and “its meaning ‘depends heavily on the circumstances

presented.’” Allstate Indem. Co., 622 S.W.3d at 883 (quoting In re Prudential Ins. of Am.,

148 S.W.3d 124, 136 (Tex. 2004) (orig. proceeding)); In re Ford Motor Co., 165 S.W.3d

315, 317 (Tex. 2005) (orig. proceeding) (quoting Prudential, 148 S.W.3d at 136); see also

In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex. 2008) (orig. proceeding)

(“Whether a clear abuse of discretion can be adequately remedied by appeal depends

on a careful analysis of costs and benefits of interlocutory review.”). An appellate

remedy is adequate when any benefits to mandamus review are outweighed by the

detriments. Prudential, 148 S.W.3d at 136.

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 II. Hearsay

In his first issue, Father argues that the trial court abused its discretion by

admitting in evidence prejudicial hearsay from the Children through Madden’s notes

and testimony. In his second issue, Father argues that the trial court abused its

discretion by admitting in evidence prejudicial hearsay contained in a child’s school

activity and admitted through the testimony of the child’s teacher.

“Hearsay” means a statement that (1) the declarant does not make while

testifying at the current trial or hearing and (2) a party offers in evidence to prove the

truth of the matter asserted in the statement. Tex. R. Evid. 801(d). Hearsay is not

admissible unless a statute or other rules prescribed under statutory authority provide

otherwise. Tex. R. Evid. 802. Once the opponent of hearsay evidence makes the

proper objection, it becomes the proponent’s burden to establish an applicable

exception that would make the evidence admissible despite its hearsay character.

Taylor v. State, 268 S.W.3d 571, 578–79 (Tex. Crim. App. 2008).

We overrule Father’s first issue because Madden’s notes were admissible under

the business-records exception to the rule against hearsay. See Tex. R. Evid. 803(6).

Madden testified that the notes were treatment records made at or near the time of

the events recorded by, or from information transmitted by, a person with knowledge

acting in the regular course of business and that it was the regular practice of his

business to make records like these. See Tex. R. Evid. 803(6)(A), (B), (C), (D).

Additionally, Father failed to demonstrate that the source of the information or the

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method or circumstances of the records’ preparation indicated a lack of

trustworthiness. See Tex. R. Evid. 803(6)(E). To the extent that the records (and

Madden’s testimony) contained “hearsay within hearsay,” as Father complains, the

trial court was within its discretion to find that these statements were made for—and

were reasonably pertinent to—medical diagnosis or treatment, described the

declarants’ past or present symptoms and their inception or general causes, and were

therefore admissible under another exception to the rule against hearsay.5 See Tex. R.

Evid. 803(4). We have said that, in cases involving allegations of child sex abuse, “the

injury is often as much psychological as it is physical in nature.” Ware v. State,

62 S.W.3d 344, 351 (Tex. App.—Fort Worth 2001, pet. ref’d). We have also said that

the Rule 803(4) exception is not limited to statements by patients, that the person

making the statement must have an interest in proper diagnosis or treatment, and that

parents normally possess this interest in the well-being of their children. Id. Therefore,

even if the child declarants were relaying statements they had overheard from Mother,

Mother’s statements would still be admissible if made for medical diagnosis or

5
Arguably, Father has not even preserved this point of error for our review
because his objections at trial did not specifically point out which statements were
inadmissible hearsay. See Tex. R. Evid. 103(a)(1); Flores v. City of Liberty, 318 S.W.3d
551, 560 (Tex. App.—Beaumont 2010, no pet.) (concluding that trial objection that
exhibits contained “hearsay within hearsay” was not sufficiently specific to preserve
error); Gen. Motors Corp. v. Harper, 61 S.W.3d 118, 126 (Tex. App.—Eastland 2001, pet.
denied) (“When part of a document contains hearsay and part of it is admissible, the
objection should point out the statements claimed to be hearsay and specifically
object to those statements.”). In an abundance of caution, we address the merits of
Father’s hearsay arguments here.

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treatment. See Tex. R. Evid. 803(4); Ware, 62 S.W.3d at 351.

Father contends that there is no evidence showing that the Children

understood, or even that someone ever attempted to explain, that being truthful to

Madden was necessary for their counseling to be effective and that “the evidence

unequivocally demonstrates the inapplicability of this hearsay exception given that the

Children did not understand or discuss the importance of telling the truth for their

‘treatment’ with Madden to be successful.” There is no requirement that a witness

expressly state that the hearsay declarant recognized the need to be truthful in his

statements for the medical treatment exception to apply. Beheler v. State, 3 S.W.3d 182,

188 (Tex. App.—Fort Worth 1999, pet. ref’d). “It is sufficient that the evidence

reflects that the statements were made for the purpose of medical diagnosis and

treatment.” Id. at 189. Courts may infer from the record that the out-of-court

declarant was aware that the statements were made for purposes of medical diagnosis

or treatment and that proper diagnosis or treatment depended upon the veracity of

such statements. See Taylor v. State, 263 S.W.3d 304, 313 (Tex. App.—Houston [1st

Dist.] 2007), aff’d, 268 S.W.3d 571 (Tex. Crim. App. 2008); see also Wilson v. State,

No. 12-18-00328-CR, 2019 WL 6358157, at *3 (Tex. App.—Tyler Nov. 27, 2019, no

pet.) (mem. op., not designated for publication) (applying the Court of Criminal

Appeals’ decision in Taylor and our decision in Beheler and holding that trial court

could have reasonably inferred from the record that victim was aware her statements

were made for purpose of medical diagnosis or treatment and understood that proper

8
diagnosis depended on veracity of her statements); Swofford v. State, Nos. 12-14-00081-

CR, 12-14-00082-CR, 2015 WL 7019762, at *4 (Tex. App.—Tyler Nov. 12, 2015, no

pet.) (mem. op., not designated for publication) (same). We overrule Father’s first

issue.

As to his second issue, Father objected to the exhibit (the child’s school

project) but not to the teacher’s testimony, which also revealed the hearsay at issue.

Any error in admitting evidence is deemed harmless and is waived if the objecting

party later permits the same or similar evidence to be introduced without objection.

Bay Area Healthcare Grp., Ltd. v. McShane, 239 S.W.3d 231, 235–36 (Tex. 2007);

Volkswagen of Am., Inc. v. Ramirez, 159 S.W.3d 897, 907 (Tex. 2004). Because Father

did not object when the hearsay in the objected-to exhibit came into evidence through

the teacher’s testimony, we will not grant him mandamus relief on this issue. See id.; see

also In re Am. Airlines, Inc., No. 02-22-00201-CV, 2022 WL 4131198, at *6 (Tex.

App.—Fort Worth Sept. 12, 2022, orig. proceeding) (“Error-preservation rules apply

to original proceedings.”). Father’s issue two is overruled.

III. Preservation of Error

In his third issue, Father argues that the trial court abused its discretion by

ordering Madden to perform the tasks of a child-custody evaluator without having to

follow the standards and procedures applicable to a child-custody evaluator. Father

points out that the Texas Family Code contains procedures and requirements for a

child-custody evaluation, see Tex. Fam. Code Ann. §§ 107.101 107.103, 107.104,

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107.107–.109, and argues that the trial court abused its discretion by failing to follow

these provisions. But Father did not present this complaint to the trial court. Again,

error-preservation rules apply to original proceedings. Am. Airlines, 2022 WL 4131198,

at *6. A party’s right to mandamus relief generally requires a predicate request for

some action and a refusal of that request. In re Perritt, 992 S.W.2d 444, 446 (Tex. 1999)

(orig. proceeding) (per curiam). To preserve a complaint for our review, a party must

present to the trial court a timely request, objection, or motion that states the specific

grounds for the desired ruling, if not apparent from the request’s, objection’s, or

motion’s context. Tex. R. App. P. 33.1(a)(1)(A); see also Tex. R. Evid. 103(a)(1). An

objection is considered timely if it is asserted when the potential error becomes

apparent. First Nat’l Collection Bureau, Inc. v. Walker, 348 S.W.3d 329, 337 (Tex. App.—

Dallas 2011, pet. denied); Hoxie Implement Co. v. Baker, 65 S.W.3d 140, 145 (Tex.

App.—Amarillo 2001, pet. denied). If a party fails to do this, then error is not

preserved. Bushell v. Dean, 803 S.W.2d 711, 712 (Tex. 1991) (op. on reh’g). Because

Father did not raise this issue in the trial court, we overrule it.6

IV. Motion for Enforcement

Although the trial court’s temporary orders—including the orders that the
6

Children continue to receive psychological treatment through Arthur Madden and
that Madden submit a report within six months indicating whether further contact
between Father and the Children is in the Children’s best interest—were not made
until August 30, six days after the last hearing, Father still could have filed a written
objection or motion to reconsider in the trial court, making the same arguments he
now makes in his petition, before petitioning this court for mandamus relief.

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 In his fourth issue, Father argues that the trial court erred by denying his

motion for enforcement without a hearing. We will not grant Father mandamus relief

on this issue because he has an adequate remedy at law. We grant the extraordinary

relief of mandamus only when the trial court has clearly abused its discretion and “the

relator lacks an adequate remedy at law.” In re D.L., 641 S.W.3d 873, 878 (Tex.

App.—Fort Worth 2022, orig. proceeding). Here, we agree with Mother that Father’s

remedy is to reurge his motion with the trial court. Alternatively, this issue is moot

because the order Father had sought to have enforced was modified by the trial

court’s temporary orders. See In re Reardon, 514 S.W.3d 919, 927 (Tex. App.—Fort

Worth 2017, orig. proceeding) (recognizing that a new order modifying a prior

SAPCR order replaces the prior order and renders it moot); In re Wynn, No. 06-05-

00137-CV, 2005 WL 3487853, at *1 (Tex. App.—Texarkana Dec. 22, 2005, orig.

proceeding) (mem. op.) (“As there is no longer an effective order to be modified or

revised, [this] issue is moot.”). We overrule Father’s issue four. See In re Tex. Dep’t of

Family & Protective Servs., 210 S.W.3d 609, 613 (Tex. 2006) (orig. proceeding) (stating

that “mandamus will not issue when the law provides another plain, adequate, and

complete remedy”).

V. Modification of Conservatorship

In his fifth issue, Father argues that the trial court abused its discretion by

removing Father and Mother as joint managing conservators of the Children and

appointing Father as temporary possessory conservator and Mother as temporary sole

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managing conservator. Mother responds that the trial court did not abuse its

discretion in temporarily modifying conservatorship based on its finding that Father

has a history or pattern of child neglect or physical or sexual abuse against the

Children. Mother directs our attention to Texas Family Code Section 153.004, which

provides that a court “may not appoint joint managing conservators if credible

evidence is presented of a history or pattern of past or present . . . physical or sexual

abuse by one parent directed against . . . a child . . . .” Tex. Fam. Code Ann.

§ 153.004(b). But this statute is inapposite because the trial court had already appointed

Father and Mother joint managing conservators in the Divorce Decree, and the issue

of “whether to appoint a party as a sole or joint managing conservator,” Id.

§ 153.004(a), was not before the trial court in the SAPCR modification. The change in

conservatorship was not litigated at either hearing in the trial court below. Mother

never requested that she be appointed temporary sole managing conservator or that

Father be removed as a managing conservator and appointed temporary possessory

conservator. Accordingly, we will conditionally grant Father mandamus relief on this

issue.

A. Abuse of Discretion

A trial court abuses its discretion when it gives temporary managing

conservatorship of a child to a party (or parties) without a live pleading on file asking

for managing conservatorship. See In re Dukes, No. 04-10-00257-CV,

2010 WL 1708251, at *2 (Tex. App.—San Antonio Apr. 28, 2010, orig. proceeding)

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(mem. op.); see also In re Russell, 321 S.W.3d 846, 855 (Tex. App.—Fort Worth 2010,

orig. proceeding [mand. denied]) (“A trial court abuses its discretion by awarding relief

to a person who has not requested such relief in a live pleading.”). Because there was

no live pleading on file asking that the parents’ joint managing conservatorship of the

Children, as ordered in the Divorce Decree,7 be changed or altered, the trial court

clearly abused its discretion in modifying the managing-conservatorship rights of

Father and Mother.

B. Inadequate Remedy by Appeal

Mandamus relief is appropriate when challenging temporary orders. See In re

Derzapf, 219 S.W.3d 327, 334–35 (Tex. 2007) (orig. proceeding) (grandparent access).

A temporary order rendered in a SAPCR is not subject to interlocutory appeal, but a

party may seek review of the trial court’s temporary order by petition for writ of

mandamus. Tex. Fam. Code Ann. § 109.001(b-5)(1), (c). Thus, Father has met his

burden to show that the trial court clearly abused its discretion and that he has no

adequate remedy by appeal on this issue. We sustain Father’s fifth issue.

Conclusion

We hold that the trial court abused its discretion by modifying the managing-

conservatorship rights of Father and Mother when there was no live pleading on file

7
In both her original and amended petitions to modify, Mother did request that
the trial court appoint her “the temporary conservator who has the right to designate
the primary residence of the children,” but this was a right she already had under the
Divorce Decree.

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requesting such relief and that Father has no adequate remedy on that issue by appeal.

We conditionally grant Father’s petition and direct the trial court to vacate that part of

its August 30, 2022 order appointing Mother as temporary sole managing conservator

and Father as temporary possessory conservator, as well as any other language in the

temporary orders modifying the managing-conservatorship rights of Father and

Mother from their joint-managing-conservatorship rights as ordered in the Divorce

Decree. Because we are confident that the trial court will comply with these directives,

the writ will issue only if the trial court fails to do so.

Our temporary order of November 23, 2022, staying the trial court’s temporary

restraining order of November 22, 2022, remains in place for fifteen days after the

date of this opinion, after which it will expire automatically without further order

unless either party files a timely motion for rehearing. See Tex. R. App. P. 52.9. If

either party files a timely motion for rehearing, then our temporary order will remain

in place until further order of this court.

/s/ Elizabeth Kerr
Elizabeth Kerr
Justice

Delivered: January 19, 2023

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