                          COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                                FORT WORTH

                               NO. 02-12-00299-CV


IN RE JASMINE CLAYBORN AND                                           RELATORS
LEE BUSH




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                            ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION1

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      This original proceeding concerns whether a trial court’s temporary order in

a modification proceeding complies with section 156.006(b) of the family code.

Tex. Fam. Code Ann. § 156.006(b) (West Supp. 2012). Because we hold that it

does not, we conditionally grant relief.




      1
       See Tex. R. App. P. 47.4.
                                    Background

        Relator, Mother, and real party in interest, Father, were divorced in July

2010. The couple had two sons and a daughter, M.C. When M.C. was about

four years old, Father learned that she was not his biological daughter. In the

final divorce decree, Father was awarded possessory conservatorship and

standard visitation with M.C. Mother and relator L.B., M.C.’s biological father,

were named joint managing conservators of M.C. and Mother was awarded the

exclusive right to designate M.C.’s primary residence.

        In July 2011, L.B. filed a petition to modify the divorce decree. L.B. sought

to terminate Father’s visitation with and possessory conservatorship of M.C.

Father later filed a counter-petition to modify the divorce decree in November

2011.

        On January 9, 2012, Father filed his motion for temporary orders, seeking

the exclusive right to determine M.C.’s primary residence, complaining that

Mother and L.B. were denying his visitation with M.C. A hearing was held on

March 22, 2012. The trial court granted Father’s motion and appointed Father

M.C.’s temporary sole managing conservator with the exclusive right to designate

her primary residence. Mother and L.B. then filed a petition for writ of mandamus

and motion for emergency relief.2




        2
        We denied Mother’s motion for emergency relief in a previous order.


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                                Standard of Review

      Mandamus relief is proper only to correct a clear abuse of discretion when

there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas,

290 S.W.3d 204, 207 (Tex. 2009) (orig. proceeding). A trial court clearly abuses

its discretion when it reaches a decision so arbitrary and unreasonable as to

amount to a clear and prejudicial error of law or if it clearly fails to correctly

analyze or apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888

(Tex. 2010) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839 (Tex.

1992) (orig. proceeding). With respect to the resolution of factual issues or

matters committed to the trial court’s discretion, we may not substitute our

judgment for that of the trial court unless the relator establishes that the trial court

could reasonably have reached only one decision and that the trial court’s

decision is arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54, 56 (Tex.

2004) (orig. proceeding); Walker, 827 S.W.2d at 839–40. In other words, we give

deference to a trial court’s factual determinations that are supported by evidence,

but we review the trial court’s legal determinations de novo. In re Labatt Food

Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding). Because a trial

court’s temporary orders are not appealable, mandamus is an appropriate means

to challenge them. See In re Derzapf, 219 S.W.3d 327, 334–35 (Tex. 2007)

(orig. proceeding); In re Russell, 321 S.W.3d 846, 853 (Tex. App.––Fort Worth

2010, orig. proceeding [mand. denied]).




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                                 Applicable Law

      Section 156.006 of the family code provides that

      (b) While a suit for modification is pending, the court may not render
      a temporary order that has the effect of changing the designation of
      the person who has the exclusive right to designate the primary
      residence of the child under the final order unless the temporary
      order is in the best interest of the child and:

      (1) the order is necessary because the child’s present circumstances
      would significantly impair the child’s physical health or emotional
      development;

      (2) the person designated in the final order has voluntarily
      relinquished the primary care and possession of the child for more
      than six months; or

      (3) the child is 12 years of age or older and has expressed to the
      court in chambers as provided by Section 153.009 the name of the
      person who is the child’s preference to have the exclusive right to
      designate the primary residence of the child.

Tex. Fam. Code Ann. § 156.006(b). The only exception applicable in this case is

whether “the order is necessary because the child’s present circumstances would

significantly impair the child’s physical health or emotional development.” Id. §

156.006(b)(1).

                                   Discussion

      Father’s motion for temporary orders alleged, “The continued denial of

visitation to [Father] in violation of the Court’s order is paramount to abuse.” To

his motion he attached the social study that was prepared on August 17, 2009.

The social study noted that M.C. sees Father, not her biological father, “as her

father.” A counselor who saw M.C. in 2009 said that cutting off contact between



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M.C. and Father was “callused” and has caused M.C. to miss her brothers and

Father’s extended family whom “she grew up with since birth.”         Father also

attached an affidavit of Larry Lohman, a counselor to Father and the two other

children. Lohman testified that the boys told him that M.C. is not allowed to play

with them at Mother’s house, which would leave M.C. “sad and pouting.”

      At the hearing on Father’s motion, Father testified that he was seeking the

temporary orders because M.C. “is not getting the proper counseling or help that

she needs going through this whole process.”         He believed that Mother’s

continued denial to let M.C. spend time with her brothers was having “an adverse

psychological effect” on her. When Father would get visitation with M.C., she did

not want to return home and asked to stay longer. Father stated that M.C. saw

Lohman twice and that Lohman could “tell that she was a little depressed.”

      Lohman testified that he believed it was in M.C.’s best interest to be in

Father’s custody because “what [he has] understood is that she has not been

handled in a manner that would be consistent with what [he] would think of as

good parenting.”   Specifically, he believes Mother has created confusion in

M.C.’s mind as to who M.C.’s father is. This confusion “would set her up for

having problems much later on in life, relationship problems specifically, trust

issues particularly, and a lot of basic uncertainty about who she is, where she

comes from, and how she has developed into the person that she develops into.”

When asked if his opinion was that it was detrimental to M.C. to be denied

visitation, he responded, “I’m sure that it really hurts her emotionally. I’m sure


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that she experiences a tremendous sense of loss.” He also testified that it would

be emotionally hurtful to M.C. if she were removed from her Mother and sister.

He said that “any situation that alienates one parent from the child is essentially

going to harm the child in doing so.”

      Although we recognize that Mother’s behavior in refusing to allow Father’s

visitation has made it difficult for him to gather the evidence necessary to meet

the statutory burden, the evidence that was presented does not demonstrate that

M.C.’s present circumstances significantly impair her physical health or emotional

development. See Tex. Fam. Code Ann. § 156.006(b)(1). The social study that

was completed almost three years before the hearing is not evidence of M.C.’s

present circumstances.     See In re Rather, No. 14-11-00924-CV, 2011 WL

6141677, at *2 (Tex. App.––Houston [14th Dist.] Dec. 8, 2011, orig. proceeding)

(mem. op.). Father only testified that M.C. was depressed when she had to

leave him and that he believes that she needs counseling to deal with the divorce

and custody proceedings.      He did not testify to any specific harm to M.C.’s

emotional development. See In re Strickland, 358 S.W.3d 818, 822–23 (Tex.

App.—Fort Worth 2012, orig. proceeding) (“Because each child’s circumstances

are different, conditions that could significantly impair the emotional development

of one child may not affect another child as strongly. Thus, specific allegations

as to how a child’s emotional development will be significantly impaired are

statutorily required.”). The counselor’s testimony, because he has not counseled

M.C. personally, amounts to nothing more than conjecture about what may


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happen in the future. Although this is evidence of emotional distress, it is not

evidence of a significant impairment by M.C.’s current circumstances as required

by the statute.    See id. (holding that evidence that the children “will likely

experience emotional distress from separation and loss” is not evidence of

significant impairment of their emotional development that is required by section

156.006 (b)(1)); In re Payne, No. 10-11-00402-CV, 2011 WL 6091265, at *2

(Tex. App.—Waco Dec. 2, 2011, orig. proceeding) (mem. op.) (“[T]he standard

for making a modification in a temporary order that has the effect of changing the

designation of the person who has the exclusive right to designate the primary

residence of the child has been set very high by the Legislature in requiring the

finding of significant impairment.”).

      Father’s general allegations here do not show that M.C.’s present

circumstances would significantly impair her emotional development. Because

section 156.006(b) precludes the trial court from issuing a temporary order

effecting a change in the designation of the person having the right to designate

the primary residence of the child, in the absence of evidence triggering a

statutory exception to this prohibition, we are compelled to conclude that the trial

court abused its discretion by granting Father the right to designate M.C.’s

primary residence. See Tex. Fam. Code Ann. § 156.006(b); Strickland, 358

S.W.3d at 822.




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                                        Conclusion

      Having determined that Mother and L.B. are entitled to relief, we

conditionally grant their petition for writ of mandamus, and we order the trial court

to vacate its March 25, 2012 order. The writ will issue only if the trial court fails to

comply with this order.




                                                      PER CURIAM

PANEL: GABRIEL, GARDNER, and MCCOY, JJ.

MCCOY, J., concurs without opinion.

DELIVERED: August 24, 2012




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