                                        NO. 07-08-0268-CV

                                  IN THE COURT OF APPEALS

                           FOR THE SEVENTH DISTRICT OF TEXAS

                                           AT AMARILLO

                                              PANEL D

                                            JULY 7, 2009

                              ______________________________


                       IN THE MATTER OF THE MARRIAGE OF
                 RUSTON CRAIG SWIM AND HOLLY LYNN HANSON SWIM
                      AND IN THE INTEREST OF C.H.S., A CHILD,

                            _________________________________

           FROM THE COUNTY COURT AT LAW NO. 3 OF LUBBOCK COUNTY;

                NO. 2007-538,917; HONORABLE PAULA LANEHART, JUDGE

                              _______________________________


Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.


                                              OPINION


       Appellant, Ruston Craig Swim, appeals certain provisions of the divorce decree

dissolving his marriage to Appellee, Holly Lynn Hanson Swim. By two issues, Appellant

contends the trial court (1) abused its discretion by failing to enter a standard possession

order1 pertaining to his possession of and access to their minor child, C.H.S., and (2) erred


       1
           See § 153.311-.317 Tex. Fam . Code Ann. (Vernon 2008).
by imposing certain orders pertaining to counseling, medical treatment, and reporting. We

affirm in part and reverse and remand in part.


                                       Background


       Ruston does not directly contest the legal or factual sufficiency of the evidence to

sustain the trial court’s decision, nor does he contest the property division, child support,

appointment of joint managing conservators, his limited access to C.H.S. before age three,

the imposition of a standard possession order at age five, or Holly’s right to determine

C.H.S.’s primary residence, therefore, we will only discuss those factual elements that are

germane to our opinion.


       The parties were married September 6, 2005, and had one child, C.H.S., who was

born on May 22, 2006. On April 17, 2007, Ruston filed his original petition for divorce.

Holly subsequently filed her answer and a counter-petition.           Both parents sought

appointment as C.H.S.’s joint managing conservator. While Holly sought designation as

the conservator with exclusive right to designate the child’s primary residence, Ruston left

that determination to the discretion of the trial court. A bench trial was held February 5, 6

and March 5, 2008.


       The evidence at trial established that Ruston suffered from a psychological disorder

and drug abuse problem which originated in his teens and continued throughout most of

his adult life. Prior to the marriage, Dr. Raymond Martin diagnosed Ruston as bipolar and


                                             2
prescribed medication to treat his condition. Ruston also began therapy sessions for

substance abuse and family counseling with Patrick D. Randolph, a licensed psychologist.

In September 2003, Ruston began attending Alcoholic’s Anonymous (AA) meetings.

Thereafter, in December 2003, he unilaterally terminated his treatment with Martin and

Randolph.


      When Ruston and his first wife, Patricia, were divorced in March 2005, Ruston

became the primary caretaker for their four year old son, J.S.2 When Ruston married Holly

in September 2005, he was neither taking medication for his bipolar condition nor attending

counseling or AA for his substance abuse issues. In December of 2005, Ruston relapsed,

using methamphetamine twice. Thereafter, Ruston sought treatment from Dr. Arun Patel,

a psychiatrist, who also diagnosed Ruston as having a bipolar disorder and again

prescribed medication for his condition.


      Phillip J. Davis, a psychologist, testified he conducted an assessment to determine

whether Ruston’s drug dependence and/or bipolar disorder would interfere with Ruston’s

ability to effectively interact with C.H.S. Davis also diagnosed Ruston as bipolar and his

assessment revealed Ruston had a history of beginning and terminating treatment. He

opined that Ruston suffered from recurrent experiences, or episodes, of depressive

behavior and anxiety accompanied by an ongoing struggle with abstinence from chemical

dependency. Davis concluded that Ruston’s bipolar disorder and drug dependence could


      2
          Ruston was appointed joint m anaging conservator with the right to determ ine his prim ary residence.

                                                       3
interfere with his interaction with C.H.S. Although Ruston was engaged in a program of

self help, individual therapy, and medical intervention, Davis opined there could be a

problem if he did not maintain stability in his behavior and treatment program.


       After his initial assessment, Davis referred Ruston to Randolph for individual therapy

and Patel for medication management. Davis believed a continuing relationship between

Ruston and his medical providers was important in terms of Ruston’s visitations with C.H.S.

because of Ruston’s problematic interactions with Holly, his desire to see C.H.S., and his

report of failed treatment for substance abuse and discontinuance of his medication for his

bipolar condition. He recommended Ruston continue interaction with Patel and Randolph

until he and his doctors concurrently agreed that Ruston no longer needed medication

and/or individual therapy.


       At trial, Randolph testified Ruston initially started individual psychotherapy for his

bipolar disorder in January 2003. However, in December 2003, Ruston terminated his

therapy with Randolph until Davis referred him in May 2007. Randolph indicated that,

since Davis’s referral, Ruston had been regularly attending AA meetings at least four times

a week as well as pursuing a spiritually-based treatment. He further testified Ruston was

compliant with his psychotherapy and actively participating in cultural, charitable, and

religious organizations. Randolph considered Ruston’s vocational success managing a

brokerage firm as a strong indicator of the success of his treatment. As a result of




                                             4
Ruston’s progress, their sessions became less frequent. Randolph opined his therapy

sessions were no longer necessary.


      Patel testified he first saw Ruston following his December 2005 relapse. At that

time, Ruston was struggling with symptoms of severe depression and anxiety. His initial

diagnosis was bipolar disorder–type one, generalized anxiety disorder and substance

abuse. In his opinion, Ruston was always going to have his symptoms which would

reappear if he ceased medicating and there would always be a concern he would use

drugs again. He described Ruston’s illness as life-long.


      Holly, a pediatrician, testified that, while they were dating, Ruston hid his drug

dependence problem and diagnosis of bipolar disorder. The month after their wedding, the

couple sought marital counseling after Ruston yelled at her concerning money matters,

called her obscene names, and began throwing things in the house. After Ruston started

seeing Patel and reestablished a medication regimen for his bipolar disorder, his mood

became more stable; however, Holly remained concerned. She began counting his

medicine and determined there were times when he was not taking his medication. Holly

testified Ruston indicated he didn’t think he needed his medication and that these

pronouncements were usually followed by mood swings, agitation, distraction,

destructibility, and pressured speech.


      During the divorce proceedings, Holly sought a court order that would monitor

Ruston’s compliance with his treatment for his bipolar disorder and substance abuse to

                                           5
assure C.H.S. would be going to a safe environment on visitations. Determining whether

Ruston was compliant with his medication and treatment was paramount to Holly.


      Ruston, a vice-president and general manager of operations of a food brokerage,

testified he discontinued his treatment in December 2003 because, at the time, he did not

want to accept his diagnosis. Ruston could not explain why he relapsed in December

2005. He testified that since he started seeing Patel he had followed his prescription drug

program with the exception of a period of time following surgery when he ceased taking his

medication due to doctors’ orders. He also acknowledged that he had a substance abuse

problem and was bipolar.


      On May 29, 2008, the trial court signed a Decree of Divorce dissolving the marriage

between Ruston and Holly. The decree appointed Ruston and Holly as joint managing

conservators of C.H.S., with Holly having the right to establish the child’s primary

residence. The decree also contained provisions pertaining to counseling for Ruston3 and

Ruston’s possession of and access to the child.




      3
          The Decree of Divorce provided, in relevant part as follows:

      Provisions for Counseling for Ruston Craig Smith

               IT IS ORDERED that RUSTON CRAIG SMITH shall continue counseling with a
      m ental health professional and that the m ental health professional shall file a written report
      with the Court every six (6) m onths beginning Septem ber 1, 2008.

              IT IS FURTHER ORDERED that RUSTON CRAIG SMITH shall continue to attend
      Alcoholics Anonym ous or Narcotics Anonym ous m eetings weekly and shall continue to take
      prescription m edications as prescribed for his bipolar disorder.

                                                     6
                                              Discussion


        Ruston asserts that the decree’s provisions governing his possession of and access

to C.H.S. between the ages of three and five are invalid because the imposition of a limited

possession schedule is unsupported by the record.4 He next asserts the trial court

exceeded its authority by (1) requiring him to continue taking medications prescribed for

his bipolar disorder, (2) requiring him to continue counseling with a mental health

professional, (3) requiring him to continue to attend Alcoholics Anonymous or Narcotics

Anonymous weekly, and (4) requiring a mental health professional to submit a written

report every six months.


        Holly asserts the record contains adequate evidence to support the modified order

of possession and access. She also asserts the trial court did not exceed its authority by

requiring Ruston to “continue” therapy, medication, and periodic reporting that was in place

during the divorce proceedings.


        I.      Standard of Review


        A trial court has broad discretion to fashion the terms of a decree related to custody,

visitation, and possession; see In re Doe 2, 19 S.W.3d 278, 281 (Tex. 2000); Gillespie v.

Gillespie, 644 S.W.2d 449, 451 (Tex. 1982), and may be reversed only if it appears that


        4
         Ruston contends the lim ited possession order provides for twenty-three and one-half days less per
year than a standard possession order would perm it while C.H.S. is between the ages of three and five years
old.

                                                     7
the court abused its discretion in light of the record as a whole. Id. A trial court abuses its

discretion when it acts arbitrarily or unreasonably, without reference to any guiding rules

or principles. Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990). See In Interest of

Doe, 917 S.W.2d 139, 141 (Tex.App.–Amarillo 1996, writ denied). Furthermore, we may

not reverse the trial court’s judgment simply because we disagree with the outcome.

Rather, we must conclude that the decision lacked basis in fact or law or involved a

misapplication of fact to law. In re C.R.T., 61 S.W.3d 62, 65 (Tex.App.–Amarillo 2001, pet.

denied).


       Under the abuse of discretion standard, legal and factual insufficiency are not

independent grounds of error, “but are relevant factors in assessing whether the trial court

abused its discretion.” Ditraglia v. Romano, 33 S.W.3d 886, 889 (Tex.App.–Austin 2000,

no pet.) (quoting Doyle v. Doyle, 955 S.W.2d 478, 479 (Tex.App.–Austin 1997, no pet.).

Further, there is no abuse of discretion where the record contains some evidence of a

substantive and probative character in support of the trial court’s decision. Baltzer v.

Medina, 240 S.W.3d 469, 475 (Tex.App.–Houston [14th Dist.] 2007, no pet.).


       II.    Conservatorship – Possession and Access


              A.     Statutory Scheme


       In matters of conservatorship, the public policy of this State is to assure continuing

contact between children and parents who have established the ability to act in their child’s


                                              8
best interest, provide a safe, stable, and nonviolent environment for the child and

encourage parents to share in their child’s development after separation or divorce. Tex.

Fam. Code Ann. § 153.001 (Vernon 2008).5                      When determining issues related to

conservatorship or possession of and access to the child, the best interest of the child is

the primary consideration. § 153.002. See In re M.S., 115 S.W.3d 534, 547 (Tex. 2003).


        If, as here, both parents are appointed as the child’s conservators, the trial court

specifies the rights and duties that are to be exercised by the parents. § 153.071. While

the guidelines established in the standard possession order are intended to guide courts

as to the minimum possession for a joint managing conservator; § 153.251(a), there is a

rebuttable presumption that the standard possession order provides the reasonable

minimum possession of a child for a parent named as a joint managing conservator; §

153.252(1), and that the order is in the child’s best interest. § 153.252(1) & (2).


        If there is sufficient evidence to rebut this presumption, however, the trial court may

deviate from the standard possession order. § 153.256. See Niskar v. Niskar, 136 S.W.3d

749, 756 (Tex.App.–Dallas 2004, no pet.). When deviating from the standard possession

order, the trial court may consider: (1) the age, developmental status, circumstances,

needs, and the best interest of the child; (2) the circumstances of the managing

conservator and of the parent named as a possessory conservator; and (3) any other

relevant factor. § 153.256. Further, a reviewing court’s holding that a trial court did not

        5
          Hereafter, for convenience, we will cite to provisions of the Texas Fam ily Code sim ply as “§ ____”
or “section ____.”

                                                      9
abuse its discretion implies that the evidence contained in the record rebutted the

presumption that the standard possession order was reasonable and in the child’s best

interest. See Gray v. Gray, 971 S.W.2d 212, 216 n.2 (Tex.App.–Beaumont 1998, no pet.)

(citing In Interest of Doe, 917 S.W.2d 139 (Tex.App.–Amarillo 1996, pet. denied)).


              B.     Standard Possession Order–Best Interest of The Child


       In determining the issues of conservatorship and possession of a child, the trial

court is given wide latitude in determining the best interest of the child and will be reversed

only for an abuse of discretion. In re C.R.T., 61 S.W.3d at 65 (citing Gillespie v. Gillespie,

644 S.W.2d 449, 451 (Tex. 1982).        This is, in part, because the trial court is in a better

position having “faced the parties and their witnesses, observed their demeanor, and had

the opportunity to evaluate the claims made by each parent.” Coleman v. Coleman, 109

S.W.3d 108, 111 (Tex.App.–Austin 2003, no pet.) (citing Martinez v. Molinar, 953 S.W.2d

399, 403 (Tex.App.–El Paso 1997, no writ)). Thus, when the testimony of witnesses is

conflicting, this Court will not disturb the credibility determinations made by the trial court

or jury and we will presume that the factfinder resolved any conflict in favor of the verdict.

See Coleman, 109 S.W.3d at 111; Minjarez v. Minjarez, 495 S.W.2d 630, 632

(Tex.Civ.App.–Amarillo 1973, no writ).


       Ruston asserts that the record does not adequately support the trial court’s final

decree restricting his possession of and access to C.H.S. between the ages of three and

five years old. Specifically, he asserts the restrictions are unreasonable because his drug

                                              10
relapses occurred more than two years prior to the final hearing, his cessation of his bipolar

medication in March 2006 was at the request of his doctors after he suffered a bad reaction

following surgery, and he has successfully served as J.S.’s primary caretaker since March

2005.


        Having reviewed the hearing transcript, the final decree, and the trial court’s findings

of fact and conclusions of law, we find the trial court restricted Ruston’s possession and

access to C.H.S. due to issues related to Ruston’s drug dependence, diagnosis of a type

one bipolar disorder, history of drug relapses, and past medication cessation.6 During a

five year period preceding the final hearing, Ruston had undergone four drug relapses

where he used methamphetamine. His relapses in 2002-2003 occurred when he was

attending AA meetings and after he began receiving treatment from a physician for his

bipolar condition. There was also evidence that Ruston did not take his bipolar diagnosis

seriously and quit his medication, AA meetings, and medical treatment by September 2005

at the latest. Thereafter, he suffered two additional drug relapses in mid-to-late December

2005.




        6
           Consideration of a child’s best interests m ay include whether a parent has a dependence on drugs
or alcohol. See In re W alters, 39 S.W .3d 280, 289 (Tex.App.–Texarkana 2001, no pet.); Monaghan v.
Crawford, 763 S.W .2d 955, 957-58 (Tex.App.–San Antonio 1989, no writ); Kotrla v. Kotrla, 718 S.W .2d 853,
855 (Tex.App.–Corpus Christi 1986, writ ref’d n.r.e.). Moreover, possession or access to a child has been
restricted, or prohibited, when a parent abuses drugs or alcohol. See In re W alters, 39 S.W .3d at 286-88;
Johnson v. Johnson, 804 S.W .2d 296, 301 (Tex.App.–Houston [1 st Dist.] 1991, no writ); W hite v. Chamberlain,
525 S.W .2d 273, 275 (Tex.Civ.App.–Austin 1975, no writ); Ex parte Davis, 450 S.W .2d 97, 98
(Tex.Civ.App.–Houston [14 th Dist.] 1970, no writ). Mental illness is also a factor to be considered and m ay
result in restrictions, or prohibition, regarding custody. See generally Meade v. Meade, 414 S.W .2d 541, 542
(Tex.Civ.App.–Austin 1967, no writ).

                                                     11
       Holly testified Ruston hid his drug dependence and underplayed his bipolar

diagnosis while they were dating and after they were married. When Ruston suffered his

two drug relapses in mid-to-late December 2005, he simply disappeared and abandoned

his parenting responsibilities. She also testified that, after Ruston began seeing Patel in

December 2005, there were times Ruston indicated he didn’t need his medication and

would subsequently suffer from mood swings, agitation, distraction, destructibility, and

pressured speech. She counted his pills and determined he was not taking his medication

as prescribed. She also testified that Ruston provided little care for C.H.S. after he was

born. During the interview process with Davis, Ruston reported he was angry and verbally

aggressive with Holly and described recurrent angry exchanges with her during their

relationship.


       Given this evidence, we cannot say that the trial court abused its discretion by

issuing a modified possession order. Whether evidence of substance abuse is too remote

is generally left to the sound discretion of the trial court. Kortla, 718 S.W.2d at 855

(custody not in the best interest even though appellant had not used drugs for two years);

Standifer v. Schmidt, 366 S.W.2d 947, 948 (Tex.Civ.App.–San Antonio 1963, no writ)

(custody not in the best interest even though divorced spouse had not used narcotics for

two years and evidence showed spouse was “otherwise a fine person”). Finally, although

Ruston produced evidence that he has successfully served as J.S.’s caretaker following




                                            12
his first divorce, the ages of the two children are substantially dissimilar–at the time of trial,

C.H.S. was less than two years old while J.S. was in excess of six years old.7


        Accordingly, we find the trial court did not abuse its discretion by entering the

modified possession order. See In re Walters, 39 S.W.3d at 286-87. Issue one is

overruled.


        III.     Continuing Medical Treatment and Reporting Requirement


        The Texas Family Code provides that, if the trial court determines that the parties

have a history of conflict in resolving an issue of conservatorship or possession and

access, the court may order a party to participate in counseling with a mental health

professional. § 153.010. See Brook v. Brook, 865 S.W.2d 166, 174 (Tex.App.–Corpus

Christi 1993), aff’d, 881 S.W.2d 297 (Tex. 1994).8 Moreover, regarding the trial court’s

ability to fashion an order regarding possession and access, the Texas Supreme Court has

stated as follows:


        we are of the view that a suit properly invoking the jurisdiction of a court with
        respect to custody and control of a minor child vests that court with decretal
        powers in all relevant custody, control, possession and visitation matters
        involving the child. The courts are given wide discretion in such proceedings.
        [citations omitted]. Technical rules of practice and pleadings are of little
        importance in determining issues concerning the custody of children.

        7
         In addition, there was evidence that Ruston appeared unwilling to m ake the accom m odations
undertaken by Holly to am eliorate C.H.S’s issues due to nystagm us, i.e., com m unicating with C.H.S. through
signing and m aintaining a consistent schedule of m eals and naps.

        8
            § 14.03 (h) relied upon by the Brook Court is now § 153.010.

                                                     13
        [citations omitted]. It is beside the point that in the instant proceeding the
        trial court, whether erroneously or not, construed the pleadings of petitioner
        as seeking only a modification of visitation rights; the point is that once the
        child is brought under its jurisdiction by suit and pleading cast in terms of
        custody and control, it becomes the duty of the court in the exercise of its
        equitable powers to make proper disposition of all matters comprehended
        thereby in a manner supported by the evidence.


Leithhold v. Plass, 413 S.W.2d 698, 701 (Tex. 1967) (emphasis added).9


        At the final hearing, Davis testified that Ruston’s bipolar disorder and drug

dependence would interfere with his interaction with C.H.S. if Ruston did not maintain

stability in his behavior and treatment program.10 He opined that Ruston required ongoing

treatment with Randolph and Patel because of his problematic interactions with Holly, his

desire to see C.H.S. and his history of failed treatment for substance abuse and bipolar

disorder. Davis recommended that Ruston continue interaction with Randolph and Patel

until Ruston and his doctors concurrently agreed that he no longer needed medication

and/or individual therapy.11

        9
        See Lohmann v. Lohmann, 62 S.W .3d 875, 878-89 (Tex.App.–El Paso 2001, no pet.); In re S.D.’s
Marriage, 511 S.W .2d 606, 608 (Tex.Civ.App.–Am arillo 1974, no writ).

        10
          Patel opined that, if Ruston ceased his m edication, he would exhibit an agitated m ood within one
to two weeks. W ithout m edication, Patel also testified that Ruston’s m ood would crash “really bad,” and, when
he becam e high, he would experience “really m anic episodes with im pulse shopping in the past, drug use
history, becom e verbally aggressive, loud.” A bipolar episode, according to Patel, could also increase
Ruston’s im pulsivity and lower his inhibitions leading to another drug relapse. Im portantly, when Ruston
checked into a hotel or stayed at a friend’s house overnight to use m etham phetam ine during his drug
relapses, he ceased all com m unication with his fam ily and com pletely abdicated his parental role to Holly for
care of J.S. and C.H.S. Neither was he able to resum e this role the following day when he returned to the
house.

        11
          Although R andolph opined that he believed therapy sessions were no longer necessary, Davis
opined Ruston needed continued interaction between therapy and m edication while Patel expressed no
opinion but testified “counseling [was] very, very helpful.”

                                                       14
       Patel described Ruston’s illness as life-long. He indicated there would always be

a concern that Ruston’s symptoms would reappear if he ceased medicating and used

drugs again. In fact, he testified that it is common for a person with a history of substance

abuse intermixed with a bipolar condition, once in awhile, to experience substance abuse

relapses. Although Ruston had a “very good record” over the past two years of compliance

with his prescription drug program and had not used illegal drugs since he started

treatment, Patel testified “[t]he concern is always there, once a person has issues with

drugs and alcohol, the concern is always there.”


       Given Ruston’s history of discontinued treatment for bipolar disorder, drug relapses

and his future prognosis, we cannot say it would be an abuse of discretion to impose the

conditions ordered, i.e., continued counseling and prescription medical treatment for his

bipolar condition, weekly attendance at AA meetings, and a status report every six months

from a mental health professional, as a condition of possession and access. See Brook,

865 S.W.2d at 174 (not an abuse of discretion to order psychological counseling

indefinitely). That’s not, however, what the decree of divorce ordered.


       Ruston contends the trial court’s decree deprives him of the protections afforded

incapacitated persons under the Texas Probate Code because the order is not related in

any manner to the child the subject of this suit. See Tex. Prob. Code Ann. §§ 601-726

(Vernon 2003). We agree. The conditions now appear in the decree as stand-alone

orders of indefinite duration. They are not conditions precedent to possession and access,


                                             15
and compliance is not a requirement in order to obtain or enhance Ruston’s rights of

possession and access. As such, they do not fall within the broad discretion of the trial

court afforded by § 153.010 of the Texas Family Code. Accordingly, Ruston’s second

issue is sustained.


                                        Conclusion


       Because we are unable to determine how the trial court would exercise its discretion

in relating the requirements imposed to the rights of possession and access granted, we

reverse the trial court’s judgment in part and delete the two paragraphs set forth in footnote

3 supra, and remand this cause for further proceedings consistent with this opinion. In all

other respects, the judgment is affirmed.




                                                  Patrick A. Pirtle
                                                      Justice




.




                                             16
