In the interest of B.A.S., a child--Appeal from County Court of Brown County

Opinion filed September 13, 2007

In The

Eleventh Court of Appeals

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   No. 11-05-00415-CV

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IN THE INTEREST OF B.A.S., A CHILD

On Appeal from the County Court at Law

Brown County, Texas

Trial Court Cause No. CV0409358

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

This appeal arises from an order that modifies a previous child custody order. Martha Allene Hicks Sullivan, appellant, and Joshua Michael Sullivan, appellee, are the parents of a minor child (B.A.S.). They divorced on February 9, 2004, when B.A.S. was approximately nineteen months old. The final decree of divorce named both parents as joint managing conservators of B.A.S. with appellant having the exclusive right to designate the child=s primary residence.

Appellee filed a petition seeking to modify the parent/child relationship by asking the court to appoint him as the parent with the right to determine B.A.S.=s primary residence. After a series of hearings, the trial court granted appellee=s requested modification. Appellant raises a single issue on appeal challenging the sufficiency of the evidence supporting the trial court=s decision to modify the child=s primary residence. We affirm.

Standard of Review

We review a trial court=s decision to modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Child v. Leverton, 210 S.W.3d 694, 695 (Tex. App.CEastland 2006, no pet.). A trial court abuses its discretion if it acts arbitrarily and unreasonably or without regard to guiding rules or principles. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 242 (Tex. 1985). The trial court is vested with wide discretion in determining custody issues. See Pe_a v. Pe_a, 8 S.W.3d 639, 639 (Tex. 1999); Gillespie, 644 S.W.2d at 451. The best interest of the child is always the trial court=s primary consideration. Child, 210 S.W.3d at 697.

Under an abuse of discretion standard, legal and factual sufficiency challenges to the evidence are not independent grounds of error but are relevant factors in assessing whether the trial court abused its discretion. Child, 210 S.W.3d at 696. Because we apply an abuse of discretion standard to a modification suit, the traditional sufficiency standards of review overlap the abuse of discretion standard, and appellate courts apply a hybrid analysis. Echols v. Olivarez, 85 S.W.3d 475, 476 (Tex. App.CAustin 2002, no pet.); In re D.S., 76 S.W.3d 512, 516 (Tex. App.CHouston [14th Dist.] 2002, no pet.). Once it has been determined that the abuse of discretion standard applies, an appellate court engages in a two pronged inquiry: (1) whether the trial court had sufficient information on which to exercise its discretion and (2) whether the trial court erred in its application of discretion. Child, 210 S.W.3d at 696. The traditional sufficiency review comes into play with regard to the first question; however, the inquiry does not end there. Id. The appellate court then proceeds to determine whether, based on the evidence, the trial court made a reasonable decision, that is, that the court=s decision was neither arbitrary nor unreasonable. Id.

In analyzing the legal sufficiency of the evidence, we must consider the evidence in the light most favorable to the verdict and indulge every reasonable inference that supports it. City of Keller v. Wilson, 168 S.W.3d 802, 821-22 (Tex. 2005). The evidence is legally sufficient if it would enable reasonable and fair minded people to reach the verdict under review. Id. at 827 28. We may sustain a no evidence challenge only when (1) the record discloses a complete absence of evidence of a vital fact, (2) the court is barred by rules of law or of evidence from giving weight to the only evidence offered to prove a vital fact, (3) the only evidence offered to prove a vital fact is no more than a mere scintilla, or (4) the evidence conclusively establishes the opposite of a vital fact. Id. at 810. In determining the factual sufficiency of the evidence, we consider and weigh all of the evidence and set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986); In re King=s Estate, 244 S.W.2d 660, 661 (Tex. 1951).

Factual Background

Acting as the fact-finder, the trial court received testimony pertaining to the custody of the child over the course of several hearings. The first hearing occurred on September 24, 2004. This hearing involved requests by both parents for protective orders regarding their possession and visitation of the child. The mutual requests for protective orders arose from a number of disputes between the parents concerning appellee=s first period of extended summer visitation occurring after the couple divorced. Appellant alleged that appellee attempted to run her vehicle off of the road when she attempted to pick up the child at the end of the visitation period. Appellant also alleged that the child=s behavior changed dramatically after the visit. She testified the child engaged in attacks of rage and used curse words. Appellant did not permit appellee to exercise his subsequent periods of visitation with the child as result of her concerns about the child=s well-being while in appellee=s custody.

The trial court denied both parties= requests for protective orders at the conclusion of the hearing on September 24, 2004. In issuing this ruling, the trial court advised the parents that it believed that both of them had engaged in conduct that was detrimental to the child. The trial court kept the visitation provisions set out in the divorce decree intact, with the exception that future exchanges of possession were to occur at the Brownwood Family Services Center.

The next hearing occurred on March 24, 2005, on appellant=s motion to modify temporary orders. Appellant alleged in her motion to modify that appellee had sexually abused the child. She asked the trial court to either prevent appellee from having any visitation with the child or require that all periods of appellee=s visitation be supervised. She supported her allegation of sexual abuse in large part upon an affidavit from the child=s counselor, Donna Ross. Ross made the following statements in her affidavit:

On February 2, 2005, during an office visit with [the child], [the child] informed me that ASabrina pulled on my nipple . . . Sabrina took her pants off . . . then Daddy showed me Sabrina=s nipple. Then Daddy slapped me. Then Daddy did the >shame on.=[@] Both daddy and Sabrina encouraged [the child] to lick and/or suck on Sabrina=s nipples, which, according to [the child], had needles in them. It was reported to me that Sabrina Tylene Smithson is [the child=s] father=s fiancée.

Appellant also stated in an affidavit that the child had asked her, AMommy can I see your nipples?@ Appellant=s affidavit also contained the child=s purported description of Sabrina=s nipples as being pierced.

Both Ross and appellant testified at the March 24, 2005, hearing. Ross=s testimony repeated the allegations contained in her affidavit. She testified that she made a report to CPS based upon her concerns about the child=s well-being while in appellee=s possession. Appellant additionally asserted that she found an unusual type of pacifier in the child=s clothing when the child returned from a visit with appellee. Appellant believed that the pacifier was of a type used by people that take Ecstasy. Appellee denied the allegations made by Ross and appellant. He testified that the pacifier was a novelty item that he purchased for the child at a local skating rink. Appellee=s fiancée, Sabrina Smithson, testified that she had never had pierced nipples.

At the conclusion of the hearing on March 24, 2005, the trial court announced that it was going to name appellee as the temporary primary conservator of the child. The trial court based its decision upon its review of Ross=s counseling records. After the court announced its decision, a disturbance involving appellant occurred. Appellant stated: AWell, it=s not going to happen. I don=t give a s--t. It=s not going to happen.@ When advised of the possibility of going to jail for her outburst, appellant replied by saying, AGood,@ whereupon she exited the courtroom. The trial court instructed its bailiff to take appellant into custody for contempt of court. During subsequent questioning of appellant, she was not immediately forthcoming in disclosing the child=s whereabouts so that appellee could obtain custody of the child.

The final hearing in the case occurred on September 12, 2005, on appellee=s motion to modify the parent/child relationship. Appellee called Ross as his first witness at the final hearing. Ross continued to counsel the child after the previous hearing on March 24, 2005. She testified that the child had improved dramatically since being placed with appellee. Ross stated as follows: ASince [the previous hearing], her play has progressed, I guess you could say, into being pretty much a normal child. I don=t see a lot of the anxiety play, the worry, the nervousness in her play that I saw before.@ Ross stated that she believed that the child should continue to reside with appellee. Ross based her opinion on her observation of the child during therapy and the child=s relationship with appellee and appellee=s wife, Sabrina.[1]

Analysis

Appellant argues that the trial court did not have sufficient evidence to initially change the child=s custody at the hearing on the motion to modify temporary orders conducted on March 24, 2005. She additionally asserts that the only additional evidence offered at the final hearing conducted on September 12, 2005, was insufficient to overcome the previously offered evidence of abuse. We disagree.

The allegations made against appellee at the March 24, 2005, hearing were obviously troublesome. However, these allegations were primarily offered through the testimony of appellant and Ross based upon statements purportedly made to them by a toddler. Appellee and his fiancée denied these allegations at the hearing. As the trier of fact, the trial court was the sole judge of the witnesses= credibility and the weight to be given their testimony. City of Keller, 168 S.W.3d at 819-21. The trial court stated at the conclusion of the hearing that it based its decision to change the child=s residence upon the contents of Ross=s counseling records. These records contained several entries that were unfavorable to appellant. One of the initial entries described a situation where appellant came to Ross in a rage. Ross wrote in another entry that there were discrepancies in some of the information that appellant had reported to her. Many of the statements attributed to the child were actually relayed to Ross prior to therapy sessions by appellant and the child=s maternal grandmother. On more than one occasion, Ross indicated that she was concerned that adults were trying to manipulate the child. Virtually all of the entries occurring during the time that the child lived with appellant noted that the child was a very confused little girl who was trying to gain some type of control over her life.

Appellant discounts Ross=s testimony at the final hearing by arguing that her opinion testimony cannot overcome the factual testimony she offered at the previous hearing. We disagree.

Given her role as a disinterested witness trained in counseling children, Ross=s testimony at both hearings was obviously significant. Her final opinion that appellee should have primary custody of the child was not based upon supposition B it was based upon her observation of the child=s improvement over the intervening six-month period that the child resided with appellee. We conclude that the trial court had legally and factually sufficient information upon which to exercise its discretion in modifying the parent/child relationship. We additionally hold that the trial court did

not abuse its discretion in determining that the best interest of the child would be served by naming appellee as the parent with the right to designate the child=s primary residence. Appellant=s sole issue is overruled.

This Court=s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

September 13, 2007

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.

[1]Appellee and Sarbrina married during the interim between the two hearings.