In re David Levay--Appeal from 166th Judicial District Court of Bexar County

DISSENTING OPINION

No. 04-05-00451-CV

IN RE David LEVAY

Original Mandamus Proceeding //

Opinion by: Karen Angelini, Justice

Dissenting opinion by: Sandee Bryan Marion, Justice

Sitting: Catherine Stone, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: August 10, 2005

The majority has determined that the trial court entered temporary orders that had the effect of changing the designation of the person who has the exclusive right to designate the primary residence of the child. Because I do not agree that the temporary orders had this effect and because I believe relator affirmatively waived his right to raise this complaint, I respectfully dissent.

DISCUSSION

Although Tabitha Dennis, a possessory conservator of her daughter, // has had little contact with P.C.L. for four years, she has spent more than a year in court, attending at least four hearings and meeting with a variety of professionals, attempting to resume visitation with P.C.L. Her efforts have been thwarted, at least in part, by P.C.L. s own behavior. For this reason, a hearing was held on April 14, 2005, at which time the trial court discussed with the parties the need to have supervised visits between P.C.L. and Dennis at a neutral location. Relator s attorney not only did not object, she agreed that putting P.C.L. in some place [n]eutral might be a good plan. Later, the court asked:

Okay. Then, if the idea is to move that [P.C.L.] has got serious problems. She s a great gal and she s got, you know, a lot of potential and everything else, but she s got this giant soon to be crippling chip on her shoulder about mom, okay, that is hard for me to comprehend that she needs to get over, and it doesn t sound like these parties are working it out to get it over with. Is this weekend at Rachel, provided some people can get the money together for this program, is that something that might move them in the right direction?

Relator s counsel responded, Your honor, I would agree that something like that, maybe even every other weekend would be fine. It would probably work; however, my clients have absolutely no money, and this thing has broken them just without even paying an attorney. At the end of the hearing, the trial court told relator s attorney to ensure her clients understood that they need to start thinking in terms of there will be an extended visitation with mom so they cannot make all the summer plans.

At no time did relator s attorney raise any objection to visitation being coordinated through the auspices of the Rachel Foundation.

On June 22, 2005, the trial court conducted a hearing at which the terms of the temporary orders were discussed. Again, relator s counsel raised no objections to the Rachel Foundation. //

Court: Number 4: It s ordered that all periods of possession as established by the Rachel Foundation are to be complied with by the parents and that they are ordered to cooperate in the transfer process of the child. Okay. That implies that the Rachel Foundation is going to determine when possession is going to occur. Is that what you intended it to say?

Dennis s attorney: Yes, Your Honor, because that s

Court: Is that agreed?

Relator s attorney: That s what we understood from the hearing in April, that they would determine when.

. . .

Court: ... And then I have the next one will be Number 5: [It] is further ordered that all transfers shall take place at a neutral location either designated by the Court or a representative by the Rachel Foundation. Okay. I would rather just put Kids Exchange, KidShare, or a place designated by the Rachel Foundation. Is that okay with you?

. . .

Relator s attorney: I believe, yes, it is, Judge . . . .

. . .

Court: Okay. We re almost done here. Order Number 9 will be: It is further ordered that . . . [Dennis] shall have the temporary care and control of the minor while she is participating in the Rachel Foundation program with the child and while not in the care and control of [relator]. That sounds reasonable.

What that s your proposed language. So do you agree with that language?

Relator s attorney: That s fine, Your honor, because I believe that s what the Rachel Foundation needs to do is effectively intervene.

. . .

Dennis s attorney: And the other thing is the judge [who presided over the April hearing] had ordered that my client have the summer with the child.

Relator s counsel: I disagree with that, Judge. That s not what she said. It was going to be determined by the Rachel Foundation.

Now, for the first time, in the petition for writ of mandamus, relator objects on the grounds that the temporary orders effectively change the person with the exclusive right to designate P.C.L. s primary residence of the child. Based on the above, I would hold that relator waived this complaint and deny the petition for writ of mandamus.

However, even if relator did not waive his complaint, I do not believe the temporary orders effectively change the designation of the person who has the exclusive right to designate P.C.L. s primary residence. In his petition, relator relies on the court s use of the word indefinitely in its order that visitation shall continue at the discretion of the Rachel Foundation. However, it is clear from the record and the acquiescence of relator s counsel that the parties understood the intervention of the Rachel Foundation would occur only during the summer break, and not for an indefinite period.

During the June 22nd hearing, several discussions arose concerning summer visitation.

Court: All right. I m going to add to paragraph 7: Tabitha Dennis shall pay 100 percent of the cost of the Rachel Foundation. That s what you re agreeing to?

Dennis s attorney: Yes.

Court: All right. Now, we re just dealing with the summer visitation.

During a later discussion regarding a decision on where P.C.L. would spend all or part of her summer, the court asked both the Rachel Foundation program director, Pamela Hoch, and the court-appointed parenting coordinator, Dr. Dina Trevino, if it was their understanding that the Rachel Foundation in conjunction with Trevino would decide the frequency and duration of the visitations, both witnesses responded affirmatively. The court then stated, Okay. All right. Let s do it that way then. Relator s counsel responded, Okay. Thank you, Judge.

Finally, the court discussed the Rachel Foundation s discretion:

Court: Okay. Let s go back to my original question; and that is, assuming they start on the 4th of July, how soon can you get recommendations on summer visitation and custody visitation?

. . .

Hoch: For about a week.

Court: Okay.

Dennis s attorney: So they stay there for the whole week, just so the Court is aware of that.

Court: I understand.

Hoch: The visit is open-ended from the child s perspective. If the child knows that the child is coming there for three days or the week, the child will typically go into lockdown and just hold their breath for a week. The visit is open-ended. There is no determined end. Otherwise, the child will just hold her breath.

Court: All right. I would like you to attempt to do it by July 15th.

Hoch: Yes, Your Honor.

Court: And you ll be entitled to an extension of two weeks if you would post it.

Hoch: Can you please clarify that, Your honor?

Court: Sure. What I would like to do is for the order to reflect that at the discretion of the Rachel Foundation and the parenting coordinator, the recommendation on visitation will be made by July 15th. If it cannot be completed by that time, at the discretion of the Rachel Foundation and Dr. Trevino, then the alternate date will be July 29th, okay?

Hoch: Okay.

. . .

Dennis s attorney: Just so that I m clear, when she said that she makes a recommendation, the child will be there for that whole time. So are you saying that on the 15th if she reports and says things are doing great, she stays for the rest of the month? She stays until school starts?

That s what I think that s what I understand from the foundation is that it s open-ended. So the child shows up on the 4th and doesn t leave until

Court: It will be at their discretion?

Dennis s attorney: Right.

Court: Yes. That s what I mean.

Hoch: Until such time as hopefully the relationship is normalized, sufficient for the child to resume a normal relationship with her parents.

Dennis s attorney: But that can extend up through the date school before school starts?

Hoch: Hypothetically, yes.

The record reveals the trial court intended only that P.C.L. would stay at the Rachel Foundation, at most, from July to the start of the school year so as to provide the Foundation with enough time to work on reunification with Dennis and P.C.L. and make its recommendation without any manipulation on the part of the child. The order effectively accomplishes what a trial court is empowered to do: enter temporary orders regarding summer visitation with a parent conservator. For this reason, I would only conditionally grant mandamus relief and direct the trial court to modify

its order to reflect the court s and parties intention that visitation between P.C.L. and Dennis be facilitated by the Rachel Foundation during the summer.

Sandee Bryan Marion, Justice