Opinion filed June 5, 2014




                                       In The

        Eleventh Court of Appeals
                                     __________

                              No. 11-13-00105-CV
                                     __________

                 IN THE INTEREST OF I.C.N., A CHILD


                    On Appeal from the County Court at Law
                             Ector County, Texas
                       Trial Court Cause No. CC-18,693

                      MEMORANDUM OPINION
      Jesus Manuel Navarrette challenges the trial court’s order in which it
suspended his right to visitation with his child I.C.N. “until [Navarrette] is released
from prison and properly applies to the Court to have visitation restored or
reviewed.” We affirm in part and reverse and remand in part.
      When Navarrette and Isela Juarez divorced in 2006, they entered into an
agreed parenting plan concerning I.C.N., and the parties apparently adhered to the
visitation schedule agreed to in that plan, including visits with I.C.N.’s
grandmother Juanita Muniz. When Navarrette was arrested for aggravated sexual
assault and incarcerated in the Ector County Jail, however, Isela no longer
permitted I.C.N. to visit her father or her father’s family. Navarrette was convicted
and sentenced to seventy-five years in prison, and he is currently incarcerated in
the Eastham Unit of the Texas Department of Criminal Justice.
      Navarrette filed a motion to enforce and to modify in which he asked the
trial court to transfer his visitation rights to Muniz under the grandparent access
statute. See TEX. FAM. CODE ANN. § 153.433(a) (West 2014). However, Muniz
was never made a party to the suit. The trial court conducted a telephonic hearing
during which Navarrette testified about the agreed parenting plan, his arrest and
conviction, and the subsequent deviation from the plan. Navarrette also told the
trial court that he wished to continue his child support obligation because he
planned to pay it in full once he was released from prison and was hopeful that his
conviction would be overturned on appeal. At the conclusion of Navarrette’s
testimony, the trial court indicated that it would also hear testimony from Isela,
Muniz, and Navarrette’s niece after it conducted a telephonic hearing with an
inmate from another case.
      When the proceeding resumed later that day, the trial court was informed
that Isela and Muniz had agreed to a visitation schedule, and the trial court did not
hear further testimony. Isela had agreed to allow Muniz and Navarrette’s other
family members to have possession of I.C.N. on the first weekend of every month
as well as any other reasonable times as might be mutually agreed to in advance by
Muniz and Isela. They also agreed about when and how the visitation would be
implemented. Isela and Muniz also agreed that I.C.N. would “not be allowed to
travel to go and visit [Navarrette] while he is in prison.” The trial court then found
that “it is not in the best interest of the child that she visit anyone who is in prison
because of the kind of environment that it is in and the impressions it can make on
young children.”
      Although the hearing was held in June 2012, the trial court did not issue its
order until May 2013.        According to the order, the trial court found that

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modification was in the best interest of the child and ordered, among other things,
“that all visitation rights of the father, [Navarrette,] be and is hereby suspended
until his release from prison and then further order of the Court.” This ruling is the
subject of this appeal. Navarrette is the only one to file a brief in this court.
      Determining the terms of possession or access by a possessory conservator is
within the sound discretion of the trial court. Thompson v. Thompson, 827 S.W.2d
563, 566 (Tex. App.—Corpus Christi 1992, writ denied).                The trial court’s
conservatorship determination is “subject to review only for abuse of discretion,
and may be reversed only if the decision is arbitrary and unreasonable.” In re
J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (citing Gillespie v. Gillespie, 644 S.W.2d
449, 451 (Tex. 1982)). Challenges to the sufficiency of the evidence are not
independent grounds of error but are relevant factors to consider when we
determine whether the trial court abused its discretion, and we apply a two-step
analysis: (1) whether the trial court had sufficient evidence on which to exercise its
discretion and (2) whether the trial court erred in its application of discretion.
Child v. Leverton, 210 S.W.3d 694, 696 (Tex. App.—Eastland 2006, no pet.). The
best interest of the child is the primary consideration in determining
conservatorship and possession of and access to the child. FAM. § 153.002.
      Navarrette, in his pro se brief, argues that the trial court erred when it
suspended his visitation rights. He does not challenge the trial court’s decision to
grant visitation rights to Muniz but, rather, challenges the basis for the trial court’s
prohibition of visitation while he is incarcerated.
      “[W]hen a trial court appoints a parent possessory conservator, it can
conclude that unrestricted possession would endanger the physical or emotional
welfare of the child, but that restricted possession or access would not.” In re
Walters, 39 S.W.3d 280, 286 (Tex. App.—Texarkana 2001, no pet.). “The court
can also conclude that access would not endanger the physical or emotional

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welfare of the child, but that access is not in the best interest of the child.” Id.
(citing Hopkins v. Hopkins, 853 S.W.2d 134, 137–38 (Tex. App.—Corpus Christi
1993, no writ)). The limitations on a parent’s right to possession of or access to
the child “may not exceed those that are required to protect the best interest of the
child.” FAM. § 153.193. Thus, an order in which the court completely denies
access to the child requires the trial court to find that denial of access is in the best
interest of the child.
       Uncontroverted testimony that visiting a parent in prison is not in the child’s
best interest is sufficient to support a trial court’s finding that a prohibition on
visitation in prison is in the best interest of the child. In re T.R.D., No. 03-09-
00150-CV, 2010 WL 2428426, at *4 (Tex. App.—Austin June 18, 2010, no pet.)
(mem. op.). In T.R.D., the child’s mother was in prison, and her parents sought
custody of T.R.D. Id. at *1. The grandfather testified that he believed visitation
was unworkable and not in T.R.D.’s best interest and that T.R.D.’s counselor
recommended that T.R.D. not visit his mother in prison. Id. at *3. The mother
failed to contest this testimony or show that a prohibition on visitation was not in
the best interest of the child. Id. at *4. The court of appeals reasoned that, while
“confinement to prison is not alone sufficient to prohibit visitation,”
uncontroverted evidence that visitation was not in the best interest of the child was
sufficient to support a prohibition on visitation. Id.
       Here, the trial court found that it was not in the best interest of the child to
visit Navarrette. The trial court’s order reflects findings that Navarrette was “in
prison for aggravated sexual assault . . . for 75 years” and that “[i]t would be
traumatic for the child to travel long distances and visit the father in prison, having
to go through prison security for a visit.” At the hearing, the trial court found that
“it is not in the best interest of the child that she visit anyone who is in prison
because of the kind of environment that it is in and the impressions it can make on

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young children.” However, there was no evidence of the prison environment or of
the impressions it can leave on children. Additionally, there was no evidence of
why it is traumatic to travel long distances, go through prison security, and visit a
parent in prison, and there was no evidence of the distance to the prison, the prison
security measures, or the conditions surrounding visitation. Moreover, there was
no testimony of any opinion from any witness that it was not in I.C.N.’s best
interest to visit Navarrette in prison. Although trips to and visits in prison might
not be in the best interest of some children, to others it might not be so detrimental
as to not be in their best interest. Even though one might expect the reasons stated
by the trial court to be generally correct, the finding nevertheless must be based
upon evidence presented to the trial court as it relates to the best interest of the
child involved. Here, there was no evidence of that; the only testimony offered
was the telephonic testimony of Navarrette.
      Because the trial court had insufficient evidence on which to exercise its
discretion to deny such access as being not in the child’s best interest, we conclude
that it was an abuse of discretion to suspend Navarrette’s visitation rights. See
FAM. § 153.193; Child, 210 S.W.3d at 696. We sustain Navarrette’s contention
that the trial court erred when it suspended his visitation rights. We need not
address Navarrette’s remaining complaints because they would not result in greater
relief. See TEX. R. APP. P. 47.1.
      Normally, when a legal sufficiency challenge is sustained, we would reverse
and render. However, when the interest of justice so requires, we may remand
these kinds of cases to the trial court for further proceedings. See generally
Shook v. Gray, 381 S.W.3d 540, 543 (Tex. 2012); Chavez v. Chavez, 148 S.W.3d
449, 461 (Tex. App.—El Paso 2004, no pet.).
      In this case, the trial court did not hear evidence about whether suspending
Navarrette’s visitation rights would be in the best interest of the child because Isela

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and Muniz, who was not a party to the suit, agreed that I.C.N. would not be
allowed to visit her father in prison. It has been almost two years since the date of
the hearing. One year of that time resulted from a delay in entering the order
appealed from, and the case has been in this court for the remainder of that time.
During that time, the desires and the circumstances of the parties may have
changed, and such changes may have had an effect on I.C.N.’s best interest.
Further, at the time of the hearing, Navarrette’s conviction had not become final.
Under these circumstances, we find it to be in the interest of justice not to simply
render judgment in Navarrette’s favor.
      Accordingly, we reverse the portion of the order that suspends visitation, and
we remand the cause to the trial court for it to conduct a hearing at which the trial
court should hear evidence to determine whether it is in the best interest of the
child to limit visitation, limit all types of access, or to deny access altogether. In
all other respects, the judgment of the trial court is affirmed.




                                                      JIM R. WRIGHT
                                                      CHIEF JUSTICE


June 5, 2014
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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