                                    NO. 07-03-0519-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL A

                                    JANUARY 13, 2004

                           ______________________________


                           IN RE KRISTA E. GLOVER NELSON

                         _________________________________


Before JOHNSON, C.J., and REAVIS and CAMPBELL, JJ.


                                MEMORANDUM OPINION


       This is a mandamus proceeding by which Krista Glover Nelson, relator, requests a

writ directing the Honorable Steven R. Emmert, Judge of the 31st District Court of Wheeler

County, to vacate his order in Cause No. 11,189 that denied relator’s petition for writ of

habeas corpus concerning her minor daughter. We will deny relator’s petition for writ of

mandamus.


       Relator and real party in interest Jeremiah R. Glover1 were divorced by the 31st

District Court on April 25, 2003, by a final decree of divorce that named them as joint

managing conservators of their daughter Reagan Dale Glover, age three. The decree gave



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        For clarity, we will hereafter refer to Krista Glover Nelson as relator, and will refer
to the real party in interest, and to the spouses of both, by their given names.
relator the right to establish the primary residence of the child, and gave Jeremiah the right

to possession of the child during specific periods under a standard possession order.


       Relator’s petition for a writ of habeas corpus was filed September 9, 2003, asserting

that Jeremiah was illegally restraining the child and asking that she be returned to relator.

The same day, Jeremiah filed a motion entitled Motion for Emergency Possession Order

and Temporary Restraining Order in Suit Affecting the Parent-Child Relationship, asking

the trial court for relief that included temporary orders for the child’s safety and a temporary

restraining order against relator. The motion alleged that the Child Protective Services

Division of the Texas Department of Protective and Regulatory Services (hereafter referred

to as CPS) had determined to remove Reagan from relator’s home in Yoakum County

because of an allegation of molestation or abuse, but that CPS intended to place her with

someone other than Jeremiah, and further stated that Jeremiah had taken the child and

returned her to Wheeler County. The trial court heard both relator’s habeas corpus petition

and Jeremiah’s motion on September 23, 2003.


       Testimony at the September 23 hearing revealed that the allegations of molestation

or abuse against relator and her husband had been made by Jeremiah and his wife Bree,

who were residing in Tarrant County. Bree testified that Reagan made a statement to her

on September 5, while she and Reagan were in the car during a period of Jeremiah’s

weekend possession. Bree testified: “She [Reagan] said that Garrett only touches her

hiney when he licks it.” Garrett Nelson is relator’s husband. After Bree reported the

statement to Jeremiah, they took Reagan to a Fort Worth hospital for examination. On the

advice of Fort Worth CPS representatives, they contacted law enforcement authorities in

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Yoakum County and, on September 7, took Reagan with them to Yoakum County, where

they met with a deputy sheriff and with Kim Pendleton, a CPS worker from Lubbock. Ms.

Pendleton interviewed Reagan and made an audiotape of that interview. On September

8, a forensic interviewer conducted an interview of Reagan arranged by CPS and attended

also by Kathie Duenes, a CPS investigator. That interview was videotaped. Evidence

indicated that during both interviews, Reagan made statements concerning touches and

licks to her buttocks or genitals by her mother and Garrett. After the forensic interview, and

on the advice of his lawyer, Jeremiah took the child to Wheeler County.


       CPS also arranged for relator and her husband Garrett to be interviewed by Dr.

Peggy Skinner, a professional counselor, who met with them on September 16. Dr.

Skinner also reviewed the video of the forensic interview of Reagan. Dr. Skinner produced

a written report, which was admitted at the hearing. The report noted that Reagan’s

removal to Wheeler County interrupted the investigation of the allegations of her sexual

abuse, and listed several areas of concern that needed further investigation. The report

included concerns that the allegations were part of an ongoing dispute over custody of

Reagan and concerns, based on statements Reagan made during the forensic interview,

that the child was being coached. The report concluded that the case was complex but,

favorable to relator, also concluded that Reagan should be returned to her mother’s

possession during completion of the investigation.


       Kathie Duenes also testified at the September 23 hearing. Ms. Duenes testified that

CPS had not completed its investigation into the alleged abuse, and was not then ready

to make a determination concerning the allegations. She testified, though, that she and the

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other CPS staff members involved in the case, in consultation with Dr. Skinner, had

concluded it was in Reagan’s best interest for relator to have possession of the child

pending completion of the investigation. She stated that she had no reason to believe the

child would be in any immediate danger if she were placed back in the home of her mother

and stepfather. On cross-examination, Ms. Duenes testified that, as a part of the CPS

investigation, a psychological evaluation of the Glovers, like that made of the Nelsons by

Dr. Skinner, was desirable.


      The trial court also heard testimony from relator and Garrett Nelson, both of whom

denied any inappropriate contact with Reagan, and from Jeremiah Glover. At the

conclusion of the hearing, the court announced its rulings denying relator’s petition for a

writ of habeas corpus, finding that there was a serious immediate question concerning the

welfare of the child and ordering that Reagan remain with Jeremiah temporarily pending

completion of the investigation. The trial court’s written order, containing the finding

pursuant to section 157.374 of the Family Code regarding the serious immediate question

concerning Reagan’s welfare, was signed October 14. Tex. Fam. Code Ann. § 157.374

(Vernon 2002).


       Under Subchapter H of Chapter 157 of the Family Code, when the right to

possession of a child is governed by a valid court order, that right may be enforced by

habeas corpus. Tex. Fam. Code Ann. §§ 157.371-.376; Schoenfeld v. Onion, 647 S.W.

2d 954 (Tex. 1983) (per curiam); Strobel v. Thurman, 565 S.W. 2d 238 (Tex. 1978). The

party opposing habeas relief may not use that proceeding to relitigate the terms of the

court’s order on possession, and the issuance of the writ of habeas corpus is to be

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“automatic, immediate, and ministerial, based upon proof of the bare legal right to

possession.” Schoenfeld, 647 S.W. 2d at 955. The rule is not without exception, though,

and one of the exceptions is provided by the court’s authority under section 157.374 to

enter an appropriate temporary order when the court makes a written finding that there

exists a serious immediate question concerning the welfare of the child. Strobel, 565 S.W.

2d at 239 (citing predecessor Family Code section 14.10(c)). Case law has held that there

is a “serious immediate question” concerning a child’s welfare when the child is in imminent

danger of physical or emotional harm, requiring immediate action to protect the child.

McElreath v. Stewart, 545 S.W.2d 955, 958-59 (Tex. 1977); Rocha v. Schuble, 809 S.W.2d

681, 682-83 (Tex.App.–Houston [14th Dist.] 1991, orig. proceeding).


       A trial court’s denial of a writ of habeas corpus sought under Subchapter H may be

challenged by mandamus. See Schoenfeld, 647 S.W.2d at 956. Under the established

standards for the issuance of a writ of mandamus, the writ issues to correct a clear abuse

of discretion or the violation of a duty imposed by law. Canadian Helicopters Ltd. v. Wittig,

876 S.W.2d 304, 305 (Tex. 1994). A court abuses its discretion when it acts unreasonably,

arbitrarily, or without reference to any guiding rules and principles. Downer v. Aquamarine

Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).


       In its resolution of factual issues, a court abuses its discretion if it rules without

supporting evidence, see Bocquet v. Herring, 972 S.W.2d 19, 21 (Tex. 1998), or if it rules

contrary to evidence on which the court could reasonably have reached only one

conclusion. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992); see GTE



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Communication Sys. Corp. v. Tanner, 856 S.W.2d 725, 729 (Tex. 1993). A court also may

abuse its discretion by issuing an order that is beyond the court’s authority. McElreath, 545

S.W.2d at 958-59; Klein v. Cain, 676 S.W.2d 165, 170 (Tex.App.–Amarillo 1984, orig.

proceeding).


       Relator argues that the trial court had before it no evidence of any immediate threat

of physical or emotional harm to Reagan. In support of her argument, relator points to the

conclusions reached by Dr. Skinner and CPS favoring Reagan’s return to her mother

pending completion of the CPS investigation. Relator’s argument ignores, though, Bree’s

unchallenged testimony of Reagan’s statement about “licks” and the evidence of Reagan’s

similar statements during the CPS interviews. The evidence before the court included

speculation about what Reagan may have meant by the statements, including suggestions

that she may have been using the term to refer to spankings, or to bodily touching

occurring in the normal course of care of the child. But the evidence was not such as to

mandate only one reasonable conclusion as to what the three-year-old was referring when

she uttered the statements. Given their worst interpretation, the statements clearly would

support a conclusion that Reagan’s presence in the Nelson home subjected her to the

threat of harm, emotional if not physical.


       Relator also points out what she sees as an inconsistency between the trial court’s

finding a serious immediate question about Reagan’s welfare and the terms of the court’s

temporary order permitting her unsupervised possession by relator. Assuming relator is

correct that the two are inconsistent, the inconsistency does not suggest that the court’s



                                             6
finding resulted from an abuse of discretion; at most, it would bring into question the

appropriateness of the terms of the court’s temporary order.


       A court’s authority to set temporary orders for immediate protection of a child is not

limitless, and the temporary order under section 157.374 should not be a final adjudication

of custody. In re Lau, 89 S.W.3d 757, 759 (Tex.App.–Houston [1st Dist.] 2002, orig.

proceeding); Young v. Martinez, 685 S.W.2d 361, 363 (Tex.App.–San Antonio 1984, orig.

proceeding). Kathie Duenes testified that the CPS investigation was incomplete. Dr.

Skinner’s report also called for more information. The trial court’s October 14 order states

the trial court’s intention to enter an additional order concerning evaluation of the child and

related matters, and states that the temporary orders are to remain in effect until

conclusion of the investigation and evaluation of the pending allegations, as determined

by further order of the court. The record before us does not indicate that the trial court has

entered additional orders, but relator’s petition does not suggest that those terms of the

court’s order exceeded the court’s authority or otherwise involved an abuse of the court’s

discretion.


       Concluding that the trial court did not abuse its discretion by making the finding that

there existed a serious immediate question about the child’s welfare, we deny relator’s

petition for writ of mandamus.


                                                   Per Curiam




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