
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-07-00099-CV


In the Interest of E. N. C.




FROM THE DISTRICT COURT OF BELL COUNTY, 169TH JUDICIAL DISTRICT
NO. 210653-C, HONORABLE GORDON G. ADAMS, JUDGE PRESIDING


M E M O R A N D U M  O P I N I O N

	The legislature has provided, with a particular emphasis on suits affecting parent-child relationships, that "[i]t is the policy of this state to encourage the peaceable resolution of
disputes . . . through voluntary settlement procedures."  Tex. Civ. Prac. & Rem. Code Ann.
§ 154.002 (West 2005).  In light of this legislative policy, we believe that this case is appropriate for
alternative dispute resolution by mediation, and we, therefore, abate the appeal and refer the matter
for mediation.  See id. §§ 154.021, .023(a) (West 2005). 
	The referral is not mandatory, and the parties are free to reject the recommendation. 
See id. § 154.022 (West 2005) (allowing party to file objection to referral to alternative dispute
resolution).  If the parties do not wish to participate in mediation, they are instructed to communicate
that fact to this Court within 10 days.  See id.  However, should the parties agree to participate in a
mediation, Mr. Robert B. Luther has agreed to serve as a pro bono mediator at his office in Austin,
Texas, and we find that he is qualified to act in that capacity.  
	If the parties are amenable to mediation, they are instructed to contact Mr. Luther to
establish a date for the mediation, provided that the date shall occur no later than 45 days after the
date of this order.  After mediation, Mr. Luther is instructed to inform this Court in writing when the
mediation is completed and whether a settlement was reached.  Mr. Luther is also instructed to send
a copy of the report to each of the parties.
	If the parties communicate to this Court that they do not want to participate in
mediation or if Mr. Luther informs this Court that a settlement was not reached through mediation,
then the appeal will be abated and sent back to the district court.  After the trial ended, the district
court issued a final order appointing Kerry and Lisa Daun as managing conservators for E.N.C.  The
order also stated that Tammie Carr was not entitled to the presumption that a biological parent be
appointed managing conservator because there is a "history of family violence involving the parents
of the child."  See Tex. Fam. Code Ann. § 153.131(b) (West 2002).  Alternatively, the order
specified that even if Carr was entitled to the presumption, Carr should not be appointed managing
conservator because the appointment "would significantly impair the child's physical health or
emotional development."  See id. § 153.131(a) (West 2002).  The order appointed Carr as the sole
possessory conservator but did not award her any powers or impose any duties other than to inform
the Dauns concerning any information relevant to E.N.C.'s welfare and to inform the Dauns if she
marries or lives with a registered sex offender.  Further, despite naming Carr as the possessory
conservator, the order did not specify any visitation rights for Carr other than listing two dates upon
which Carr could have supervised visitation.  Carr requested that the district court issue findings of
fact and conclusions of law supporting its order, see Tex. R. Civ. P. 296, but no findings or
conclusions were ever produced.  
	The absence of findings of fact and conclusions of law in the judgment prevents us
from conducting a meaningful review of the district court's decision.  Accordingly, if the parties do
not desire to participate in mediation or cannot reach a settlement, we will issue a new order abating
the appeal and sending it back to the district court with instructions that the district court enter
findings and conclusions supporting its order. 

 
					David Puryear, Justice
Before Justices Patterson, Puryear, and Henson
Abated
Filed:   February 22, 2008


