

COURT OF APPEALS
EIGHTH DISTRICT OF
TEXAS
EL PASO, TEXAS
 
 



HUGO G. ACOSTA,
 
                            Appellant,
 
v.
 
ANABEL SOTO,
 
                           
  Appellee.


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No. 08-11-00340-CV
 
Appeal from the
 
388th
  Judicial District Court 
 
of El
  Paso County, Texas 
 
(TC#2009CM699) 
 



 
O
P I N I O N
            Appellant Hugo
Acosta (“Acosta”) appeals that part of a final decree of divorce requiring him
to attend therapeutic family counseling.  He argues that the trial court abused its
discretion by ordering family therapy where no evidence exists showing that
Acosta had a history of conflict with his spouse in resolving any issue of
conservatorship or possession or access to the children.  For the reasons that follow, we affirm.
BACKGROUND
            At
a hearing on August 9, 2011, the trial court entered judgment on the divorce
between Acosta and Annabel Soto (“Soto”).[1]  A signed, final decree of divorce was entered
the same day.  At the hearing, Soto noted
that the divorce decree had been substantially agreed to by the parties save one
exception.  Visitation was initially
contested and Acosta was not permitted to visit his children until such time as
he was found not guilty in a pending criminal matter alleging indecency with a
child.  When Acosta advised the court
that the charges had been dismissed, Soto informed the court that Acosta had
failed to complete the counseling required in an agreed protective order.[2]
 She also noted that the court had
previously denied supervised visitation based on Acosta’s failure to comply
with the counseling requirement.  When
asked by the court whether he had complied with the counseling required under
the protective order, Acosta stated that he had not.  Soto expressed concern with Acosta visiting
the children without a therapist present.  The court agreed that this was “reasonable,” given
that Acosta had not seen any of the children for more than two years.  The court also found that the presence of a
therapist would be in the children’s best interest.
As part of the
decree, the trial court ordered Acosta to attend therapeutic family counseling
for a period of six months.  This was a
condition related to his supervised visitation with the children.  Acosta would be permitted to petition the
court for unsupervised visitation after six months.  Acosta filed a motion for new trial, which
was overruled by operation of law, and he timely appealed.
DISCUSSION
            Acosta
asserts that the trial court abused its discretion by entering the order
requiring therapeutic visitation.  He
argues that there is no evidence in the record to support such a requirement.
In matters of
conservatorship, the public policy of the State of Texas is to assure
continuing contact between children and parents who have established the
ability to act in their child’s best interest, and are able to provide a safe,
stable, and nonviolent environment for the child.  Tex.Fam.Code
Ann. § 153.001 (West 2008).  
Parents are encouraged to share in their child’s development after
separation or divorce.  Id.  When determining issues related to
conservatorship or possession of and access to the child, the best interest of
the child is the primary consideration.  Tex.Fam.Code Ann. § 153.002.  See In
re M.S., 115 S.W.3d 534, 547 (Tex. 2003); In re Marriage of Swim, 291 S.W.3d 500, 505 (Tex.App.--Amarillo
2009, no pet.)(noting same).  The Texas
Family Code provides that a court may order a party to attend counseling with a
mental health professional “[i]f the court finds at the time of a hearing that
the parties have a history of conflict in resolving an issue of conservatorship
or possession of or access to the child . . . .”  Tex.Fam.Code
Ann. § 153.010(a).  See Brook v. Brook, 865 S.W.2d 166, 174
(Tex.App.--Corpus Christi 1993), aff’d,
881 S.W.2d 297 (Tex. 1994).
Trial courts have
“wide discretion in determining the best interest of a child in family law
matters such as custody, visitation, and possession.”  Burney v.
Burney, 225 S.W.3d 208, 212 (Tex.App.--El Paso 2006, no pet.).  The trial court “is in a better position to
determine what will be in the best interest of the children since it 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.).  We review a trial court’s rulings on
conservatorship and visitation under an abuse of discretion standard.  Newberry
v. Newberry, 351 S.W.3d 552, 558 (Tex.App.--El Paso 2011, no pet.).  A trial court abuses its discretion when it
acts in an arbitrary or unreasonable manner, or without reference to any
guiding rules and principles.  Garcia v. Garcia, 170 S.W.3d 644, 649
(Tex.App.--El Paso 2005, no pet.); Downer
v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).  An abuse of discretion does not occur as long
as some evidence of a substantive and probative character exists to support the
trial court’s decision.  See In re Gonzalez, 993 S.W.2d 147, 155
(Tex.App.--San Antonio 1999, no pet.); D.R.
v. J.A.R., 894 S.W.2d 91, 95 (Tex.App.--Fort Worth 1995, writ denied).
In the instant
case, Acosta acknowledged that he failed to comply with previous court-ordered
counseling stemming from a protective order involving Acosta’s step-daughter.  Acosta had also been charged with indecency
with a child (his step-daughter), and while the charges were ultimately dismissed,
the trial court and Acosta both recognized that the event was traumatic for the
children.  Soto requested that the
initial visitation with the children be conducted through a therapist and the
trial court agreed that such a requirement would be in the children’s best
interest.
Having reviewed
the record, we perceive no abuse of discretion.  The trial court’s order of therapeutic visitation
for a period of six months, especially in light of the allegations of abuse, the
protective order, Acosta’s failure to comply with prior counseling
requirements, and Acosta’s own acknowledgement that the experience had been
traumatic for the children, all support the trial court’s decision.  Acosta’s sole issue is overruled.
CONCLUSION
            Having
overruled Acosta’s sole issue, the judgment of the trial court is affirmed.
 
 
December
19, 2012
                                                                        CHRISTOPHER
ANTCLIFF, Justice
 
Before
McClure, C.J., Rivera, and Antcliff, JJ.




[1]
Soto is listed as the Appellee in this matter, but did not file a brief.


[2]
The agreed protective order was on behalf of Soto and her daughter.


