In the Interest of R.A.H., a child--Appeal from 326th District Court of Taylor County

Opinion filed March 1, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00300-CV

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   IN THE INTEREST OF R.A.H., A CHILD

On Appeal from the 326th District Court

Taylor County, Texas

Trial Court Cause No. 28,889-C

M E M O R A N D U M O P I N I O N

Robert Avila appeals from the trial court=s denying his request to continue court-ordered visitation with the child, R.A.H. We affirm.

R.A.H. was born on April 18, 1995. On September 26, 1997, the trial court entered a decree of paternity establishing Avila as the father of R.A.H. Avila paid child support and had visitation rights with R.A.H. On September 26, 2001, Christopher R. Jojola filed a petition to contest acknowledgment of paternity and a petition to establish his paternity of R.A.H. After a hearing on April 4, 2005, the trial court found that genetic testing excluded Avila as the father of R.A.H. and proved Jojola to be the biological father of R.A.H. The trial court adjudicated Jojola as the father of R.A.H. and named him possessory conservator of the child. The trial court found that it would not be in the best interest of R.A.H. to continue court-ordered visitation with Avila.

In his first and second issues on appeal, Avila argues that the trial court erred in not naming him as a possessory conservator of R.A.H. and in not awarding him court-ordered visitation with the child. We give wide latitude to a trial court=s decision on custody, control, possession, and visitation matters. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Turner v. Turner, 47 S.W.3d 761, 763 (Tex. App.CHouston [1st Dist.] 2001, no pet.). The trial court=s judgment regarding what serves the best interest of the child with regard to visitation is a discretionary function and will only be reversed upon an abuse of discretion. In re N.A.S., 100 S.W.3d 670, 673 (Tex. App.CDallas 2003, no pet.). A trial court abuses its discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules or principles. Turner, 47 S.W.3d at 763.

Cynthia Young, a psychotherapist who had counseled R.A.H., testified at trial. Young stated that the custody battle over R.A.H. had had a negative effect on the child. Young testified that R.A.H. did not want to have visitation with Avila and that the forced visitation caused R.A.H. Afear and anxiety.@ Young further testified that there was no evidence that R.A.H. had any bonding or attachment with Avila. Young said there was no emotional relationship between R.A.H. and Avila. Young stated that it was not in the best interest of R.A.H. to have forced visitation with Avila. Jojola testified that the forced visitation between R.A.H. and Avila was affecting Jojola=s relationship with R.A.H. Jojola asked the trial court to stop the visitation so that R.A.H. could Acontinue with his new life.@ Jojola stated that it was in the best interest of R.A.H. to end the visitation with Avila.

Avila testified at trial that R.A.H. expresses love for him when they are alone. Avila=s father testified that Avila and R.A.H. have a close relationship and that it would not be in the best interest of R.A.H. to end visitation. After reviewing the evidence, we do not find that the trial court erred in naming Jojola as the possessory conservator and in ending court-ordered visitation between Avila and R.A.H. Avila=s first and second issues on appeal are overruled.

In his third issue on appeal, Avila argues that the trial court=s letter intended for Avila to have access to R.A.H. and that the court order should have specifically provided the terms of Avila=s access to the child. On April 6, 2005, the trial court sent a letter to the attorneys involved in the case that stated:

Based on all of the evidence, it is not in [R.A.H.=s] best interest to have a court-ordered relationship with [Avila]. However, if [R.A.H.] wants, he is certainly free to have contact with [Avila] by telephone or in person whenever he chooses.

The trial court=s order on June 6, 2005, specifically denies Avila=s request for court-ordered visitation, and that order is controlling. See Kates v. Smith, 556 S.W.2d 630, 632 (Tex. Civ. App.C Texarkana 1977, no writ). Moreover, we do not find that the trial court=s letter intended to provide Avila with a right of access to R.A.H. Avila=s third issue on appeal is overruled.

In his fourth issue on appeal, Avila contends that the trial court applied the incorrect standard of proof in denying his visitation with R.A.H. Avila argues that the trial court should have used the standard of Aclear and convincing evidence@ required by Tex. Fam. Code Ann. ' 161.001 (Vernon Supp. 2006) for termination of parental rights. Avila=s parental rights were not terminated under Section 161.001; rather, the trial court found that Avila was not the father of R.A.H. The trial court did not apply the wrong standard of proof in denying Avila visitation with R.A.H. Avila=s fourth issue on appeal is overruled.

The judgment of the trial court is affirmed.

JIM R. WRIGHT

CHIEF JUSTICE

March 1, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.