                                                                                         ACCEPTED
                                                                                     12-15-00149-CV
                                                                        TWELFTH COURT OF APPEALS
                                                                                      TYLER, TEXAS
                                                                                7/2/2015 11:02:11 AM
                                                                                       CATHY LUSK
                                                                                              CLERK




                   No. 12-15-00149-CV
                __________________________                           FILED IN
                                                              12th COURT OF APPEALS
                                                                   TYLER, TEXAS
                             In the Court of Appeals          7/2/2015 11:02:11 AM
                        for the Twelfth District of Texas          CATHY S. LUSK
                                     at Tyler                          Clerk
                ________________________________________


                                  In Re

             Charles Dwayne Lankford
              and Roberta Gresham,

                                                            Relators
                ________________________________________



                       Relators' Reply
                ________________________________________


ROBERT L. FLOURNOY                             ROBERT T. CAIN, JR.
STATE BAR NO. 07173000                         STATE BAR NO. 03607200
LAW OFFICES OF                                 ROBERT ALDERMAN, JR.
ROBERT L. FLOURNOY                             STATE BAR NO. 00979900
P. O. BOX 1546                                 ALDERMAN CAIN & NEILL PLLC
LUFKIN, TEXAS 75902-15460                      122 EAST LUFKIN AVENUE
TELEPHONE: (936) 639-4466                      LUFKIN, TEXAS 75901-2805
FACSIMILE: (936) 634-3190                      TELEPHONE: (936) 632-2259
                                               FACSIMILE: (936) 632-3316

Attorney for Relator                     Attorneys for Relator Charles Dwayne
Roberta Gresham                          Lankford

               ORAL ARGUMENT REQUESTED
                                 TABLE OF CONTENTS


TABLE OF CONTENTS ............................................................................ 1

INDEX OF AUTHORITIES ....................................................................... 3

ISSUES PRESENTED .............................................................................. 5

ARGUMENT AND AUTHORITIES ......................................................... 5

I.     Update to the Procedural History of this Case ............................... 5

II.    Stephanie asks the Court to decide this case based
       on documents that are not evidence ................................................ 6

       A.      Her pleading and affidavit are not evidence .......................... 6

       B.      The child’s interview in chambers is not evidence ................. 8

III.    Many of Stephanie’s statements of “fact” are not
        supported by the record ................................................................... 9

IV.    Stephanie does not address the importance of standing
       as protecting parents’ constitutional rights ................................... 13

V.     Standing requires more than developing a “close relationship”
       with the child ................................................................................... 14

VI.    “Care, custody and control” under the statute means
       something more than possession at the sufferance
       of the parent .................................................................................... 14

VII. The trial court should not have considered T.D.L.’s
     interview to determine standing ................................................... 18




                                                   -1-
CONCLUSION ......................................................................................... 19

PRAYER … .............................................................................................. 20

SIGNATURE ....................................................................................... 20-21

CERTIFICATION OF REVIEW .............................................................. 21

CERTIFICATE OF COMPLIANCE WITH
TEX. R. APP. P. 9.4(I) .............................................................................. 22

CERTIFICATE OF SERVICE ................................................................. 23

AFFIDAVIT OF ROBERT L. FLOURNOY ............................................ 24

INDEX TO SECOND SUPPLEMENTAL RECORD

SECOND SUPPLEMENTAL RECORD




                                                   -2-
                               INDEX OF AUTHORITIES

CASES:

In re Contractor's Supplies, Inc., No. 12-09-00231-CV, 2009
      WL 2488374 (Tex. App.—Tyler Aug. 17, 2009)
      (orig. proceeding) ............................................................................... 7

Crawford v. Washington, 541 U.S. 61-62 (2004) ...................................... 9

In re C.T.H.S., 311 S.W.3d 204 (Tex. App.—Beaumont
      2009, pet. denied)……………………………………………………….13

In re K.K.C., 292 S.W.3d 788 (Tex. App.—Beaumont 2009) ............ 15, 16

In re K.K.T., No. 07-11-00306-CV, 2012 WL 3553006
      (Tex. App. – Amarillo Aug 17, 2012, no pet.) (mem. op.) ....... 15, 16

Laidlaw Waste Sys. (Dallas), Inc. v. City of Wilmer,
     904 S.W.2d 656, 660 (Tex. 1995) ...................................................... 7

In re M.K.S.-V., 301 S.W.3d 460
      (Tex. App.—Dallas 2010) ................................................................ 16

In re M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas
      2008, no pet.) .................................................................................. 16

Nat’l Med. Fin. Servs., Inc. v. Irving Indep. Sch. Dist.,
      150 S.W.3d 901, 905 (Tex. App.—Dallas 2004, no pet). .................. 7

Nichol v. Nichol, No. 07-12-00035-CV, 2014 WL 199652
     (Tex. App.—Amarillo Jan. 15, 2014, no pet.) ................................... 9

In re N.I.V.S., 2015 WL 1120913 (Tex. App.—
      San Antonio March 11, 2015) (mem. op.) ...................................... 16

In re Russell, 321 S.W.3d 846
      (Tex. App.—Fort Worth 2010, orig. proceeding) ........................... 13

                                                   -3-
State for Best Interest of S.E., No. 12-14-00246-CV, 2014
      WL 6977816 (Tex. App.—Tyler Dec. 10, 2014, no pet.) .................. 7


RULES AND STATUTES:


TEX. FAM. CODE (Vernon 2014)

      § 102.003(a)(9) .................................................................................. 5

      § 153.009 ....................................................................................... 5, 8

      § 153.009(b) ...................................................................................... 18

      § 153.131(a) ..................................................................................... 13


TEX. R. EVID.

      801(d) ............................................................................................. 7, 8

      802 ................................................................................................... 7




                                                    -4-
                             ISSUE PRESENTED

      Respondent abused his discretion when he ruled that the child’s

step-mother has standing to commence a suit affecting the parent-child

relationship under Section 102.003(a)(9) of the Family Code, which

would require her to have had “actual care, custody, and control over

the child for at least six months . . . .”

                     ARGUMENT AND AUTHORITIES

      Stephanie’s response to the petition for mandamus distorts the

record and fails to engage the substantive arguments made by Relators.

I.    Update to the Procedural History of this Case.

      At Stephanie’s request (R233), the trial court interviewed T.D.L.

in chambers, as authorized by Section 153.009 of the Family Code.1

After this Court directed her to respond to the mandamus petition in

this proceeding, Stephanie asked the trial court to unseal the interview

and allow it to be transcribed so that it could be presented to this Court.

2d Supp. R. at 1. Relators objected, pointing out that the interview had

nothing to do with the standing question, the child was not under oath,

and the parties were not given the opportunity to cross-examine her. Id.



      1   TEX. FAM. CODE ANN. § 153.009 (Vernon 2014).

                                         -5-
at 3. At a hearing on the motion held on June 24, 2015, the trial court

granted Stephanie’s motion (Id. at 6) and announced that “lots of

responses [in the interview] did assist me in forming my opinion to

allow step-mother to have standing . . . . ” Id. at 14.

      Therefore, Stephanie attached a transcript of the interview to her

response to the petition; we have attached copies of the relevant

motions and a transcript of the hearing where the trial court announced

his ruling. References to the transcript of the interview will be cited as

“1st Supp. R.,” and references to the documents attached to this reply

will be cited, “2d Supp. R.”

II.   Stephanie asks the Court to decide this case based on
      documents that are not evidence.

      Before we address the substance of Stephanie’s argument, we

must first object to her citations to documents that are not evidence.

      A.   Her pleading and affidavit are not evidence.

      At least fifteen times she offers to prove an asserted fact by citing

to her own pleading and affidavit, which are at pages 26-31 of the

record attached to our Petition. Those citations may be seen in

Stephanie’s Response at 3-6, 8-9, 11-12. It should be no surprise that



                                     -6-
Stephanie’s statements in these documents are self-serving and

conclusory.

     There are three problems with Stephanie’s reliance on her

pleading and affidavit. First, neither was admitted into evidence, and

documents not admitted into evidence cannot be considered as proof. In

re Contractor's Supplies, Inc., No. 12-09-00231-CV, 2009 WL 2488374,

at *5 (Tex. App.—Tyler Aug. 17, 2009) (orig. proceeding); Nat’l Med.

Fin. Servs., Inc. v. Irving Indep. Sch. Dist., 150 S.W.3d 901, 905 (Tex.

App.—Dallas 2004, no pet.).

     Second, pleadings are generally not competent evidence, even if

they are sworn or verified. Laidlaw Waste Sys. (Dallas), Inc. v. City of

Wilmer, 904 S.W.2d 656, 660 (Tex. 1995); State for Best Interest of S.E.,

No. 12-14-00246-CV, 2014 WL 6977816, at *2 (Tex. App.—Tyler Dec.

10, 2014, no pet.).

     Third, even if the affidavit had been offered as evidence, it would

have been inadmissible hearsay – an out-of-court statement “offered . . .

to prove the truth of the matter asserted.” TEX. R. EVID. 801(d), 802.




                                    -7-
     Neither the pleading nor the affidavit should have been

considered as evidence by the trial court, and this Court should not rely

upon them, either.

     B.    The child’s interview in chambers is not evidence.

     Stephanie also repeatedly cites as evidence statements made by

T.D.L. in an in-chambers interview, which the trial court conducted

outside of the presence of the parties and their counsel. 1 Supp. R at 4.

This interview, requested by Stephanie (R233), was appropriate for

determining the child’s wishes as to conservatorship. TEX. FAM. CODE

ANN. § 153.009 (Vernon 2014).

     But the very nature of an in-camera interview makes it

inappropriate for evidence on a contested issue such as standing. It is

no surprise that Judge Register was very kind to the child and

questioned her gently. He should not have done otherwise in that

circumstance.

     But when it comes to the standing question, the child’s statements

at the interview were inadmissible hearsay, since those statements

were not made “while testifying at the trial or hearing.” TEX. R. EVID.

801(d).


                                   -8-
     The child was not under oath or admonishment to tell the truth,

and her statements were inadmissible for that reason. Nichol v. Nichol,

No. 07-12-00035-CV, 2014 WL 199652, at *2 (Tex. App.—Amarillo Jan.

15, 2014, no pet.)

     Counsel did not have the opportunity to pose questions to her in

order to draw out explanations or additional information. Cross-

examination, however gentle it may be, is the best means our judicial

system offers for determining truth. See Crawford v. Washington, 541

U.S. 61-62 (2004).

     Until the June 24 hearing, Relators did not know that the trial

court based his ruling, in part, on the child’s in-camera statements;

therefore, they were never given the opportunity to object ahead of time.

III. Many of Stephanie’s statements of “fact” are not supported
     by the record.

     Some things Stephanie says in her brief are simply not true. For

example, on page 12, Stephanie claims that Roberta, the grandmother,

was “unable to respond correctly” when asked about T.D.L.’s age. In




                                   -9-
fact, Roberta correctly answered that the child was twelve years old

(R203), almost thirteen (R204).2

      In the very next sentence, Stephanie claims that in her interview,

T.D.L. told the judge that the home where Charles, T.D.L., and

Stephanie had lived belonged to Stephanie, citing 1st Supp. R. 6:22-23.

In fact, T.D.L. said nothing of the kind. (And if she had said that, how

would a twelve-year-old have known whether it were so?)

      Then Stephanie says that she enrolled T.D.L. in school. That is

not so, and Stephanie admitted as much on the stand: “Ms. Gresham

took her to enroll.” R193. According to the uncontradicted evidence,

Charles signed papers in 2011 to authorize T.D.L. to transfer from

Hudson I.S.D. to Diboll. Resp. Exh. 1, 2 (R268-89). Charles also made

the decision to transfer her back to Hudson in 2013. R121-22. Stephanie

did not have authority to sign the necessary papers, so she asked

Roberta to sign the authorization for that transfer. R196, 278.




      2 The exact exchange at R203 was as follows: “Q: This is a - - how old is she
now? A: How old is she? Q: Yes. A: She’s 12 now. She’ll be twelve the 21st of March.
Q: Okay. She’s almost a 13-year old child. . . . .” R203, ll. 9-14. The second part of
her sentence was either a slip of the tongue, understood as such by all, or an error
in transcription. On the next page, Roberta testified, “I imagine she dresses herself.
She’s 13 almost.” R204, l. 24. Stephanie’s brief confirms that T.D.L. was born March
2, 2002. Resp. at 2.

                                         -10-
     But, Stephanie says, only she and her family were on the school

pickup list! And that, she says, shows the “apathy and inattentiveness”

of Charles and Roberta. Resp. at 17. This is not true at any level.

Roberta is listed on the first page of the form as a “guardian.” Pet. Exh.

1 (R275). The other contacts listed on the next page may “also” pick up

the child. R276. And nothing on this form can be taken as showing

anyone’s “apathy or indifference:” Stephanie admits that she herself

filled out the form on October 14, less than a month before she filed for

divorce. R192. The document speaks for Stephanie’s attitude and no one

else’s. She did not bother to list her husband, the child’s father, at all.

     Stephanie’s form contrasts with the one Roberta filed the previous

year. R277-84. The earlier form lists Roberta as guardian and Charles

as father. R278. Stephanie is shown as “step-mom” on the pick-up list,

along with Stephanie’s mother. R279. Stephanie says that she filled out

that form, too. R193. But she needed it signed by Roberta, so she put

Roberta and Charles’s names on it.

     With no citation to the record, she asserts that Charles “was

willing to give Stephanie all legal right to make decisions for the child.”

Resp. at 23. As Stephanie admitted under oath, Charles never signed


                                     -11-
any papers giving Stephanie any rights over T.D.L. R. 163-64. Charles

had once signed a power of attorney giving Roberta rights to make

decisions over T.D.L., but he never did that for Stephanie. R122-23, 131.

(He did give Stephanie, Roberta, and another woman medical

authorizations for T.D.L.’s treatment in his absence. R123, 134, 265.)

     Stephanie claims that Roberta “relinquished care, control and

possession of T.D.L. to Charles and Stephanie.” Resp. at 8. She cites

only her own affidavit (i.e., no evidence) to support this allegation.

Roberta testified that she gave rights only to her son, in custody orders.

R196-97.

     Stephanie also complains that Charles and Roberta did not attend

T.D.L.’s games. Resp. at 19-20. Charles, of course, timed his visits home

for when T.D.L. was not in school so that he could spend more time with

her. R159. Naturally, there were no games or extracurricular activities

during those times, but surely it was more important that he spend one-

on-one time with his daughter.

     Roberta’s hours of work kept her away from the games: she

worked until 10:00 in the evening. R202. Now that Roberta is not

working, “I would not be given a schedule of her games, and I was told


                                   -12-
not to the [sic] come.” R202. Evidently Stephanie wanted to make sure

that she “and her family are T.D.L.’s biggest fans.” Resp. at 19.

IV.   Stephanie does not address the importance of standing as
      protecting parents’ constitutional rights.

      In an original suit affecting the parent-child relationship, the

Family Code includes a “parental presumption” that entitles the parent

to be appointed sole managing conservator (or joint managing

conservator with the other parent) unless the court finds such

appointment “would significantly impair the child’s physical health or

emotional development . . . .” TEX. FAM CODE ANN. § 153.131(a) (Vernon

2014). That presumption does not exist in modification proceedings such

as this one. See Pet. for Mand. at 12-13.

      Thus, the concept of standing is the only legal doctrine that acts to

protect parents’ constitutional rights to supervise the rearing of their

children. It is their recognition of his that has led the Fort Worth and

Beaumont courts to insist on a bright-line test for standing. In re

Russell, 321 S.W.3d 846, 856 (Tex. App.—Fort Worth 2010, orig.

proceeding); In re C.T.H.S., 311 S.W.3d 204, 208 (Tex. App.—Beaumont

2009, pet. denied).



                                    -13-
      Stephanie’s response does not address this issue. This is not

surprising, since it cannot help her if the Court considers Charles’s

liberty interest in rearing his own daughter.

V.    Standing requires more than               developing    a   “close
      relationship” with the child.

      Instead, Stephanie repeats the refrain that she has “developed

and maintained a relationship with [the] child over time.” See Resp. at

11; see also id. at 12,14, 25. That cannot be a sufficient test. A good

teacher or a coach develops close relationships with the children under

his or her care; that does not give them standing in suits affecting the

parent-child relationship.

VI.   “Care, custody, and control” under the statute means
      something more than possession at the sufferance of the
      parent.

      Even if the Court is unwilling to adopt the rigorous, bright-line

rule of the Beaumont and Fort Worth courts, Stephanie has not shown

standing. She had physical possession of T.D.L., but standing requires

something more. Stephanie’s possession depended on Charles’s will, and

what she did with T.D.L. depended on what he said.

      Charles was heavily involved in the child’s life, calling home four

to five times a day, by Stephanie’s count. R167. He made the decisions

                                   -14-
about where T.D.L. lives, where she goes to school, and who are her

medical providers. R133-34. He made decisions about her discipline.

R120, 150.

     Charles did sign medical authorizations with T.D.L.’s pediatrician

that allowed Stephanie to secure medical treatment for the child in his

absence. R123, 164. But one of those authorizations also gave

permission to Roberta and to Lisa LeBlanch, who was a friend of

Roberta’s who sometime babysat T.D.L. Mov. Exh. 4 (R265), R125.

T.D.L. did not require hospitalization or surgery while Charles was

away. R165.

     The facts of this case are similar to those in In re K.K.T., No. 07–

11–00306–CV, 2012 WL 3553006, at *4 (Tex. App.—Amarillo Aug. 17,

2012, no pet.) (mem. op.). The court noted that “[t]he undisputed

evidence shows that the father’s temporary incarceration played a

heavy role in the arrangements for the children’s care during the time

in question, and shows that maintenance of those arrangements hinged

on the mother’s will.” Id. at *3 (emphasis supplied). The grandfather’s

care did not “demonstrate the exercise of authority to guide and manage

the children, beyond the control that is implicit in the possession and


                                  -15-
care of three-and five-year-old children.” Id., citing In re K.K.C., 292

S.W.3d 788, 792 (Tex. App.—Beaumont 2009). T.D.L. was a little older,

but Stephanie has shown nothing more than the control implicit in

possession of a child T.D.L.’s age.

     Some courts – not Fort Worth or Beaumont – employ a looser test

for standing when they face custody-sharing arrangements, as in In re

M.K.S.–V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied),

and In re M.P.B., 257 S.W.3d 804, 809 (Tex. App.—Dallas 2008, no pet.).

     Even courts that cite a more relaxed rule of standing (compared to

Fort Worth and Beaumont) are more careful when the non-parent has

been living with the parent. One example of this is In re K.K.T. Another

is In re N.I.V.S., No. 04–14–00108–CV, 2015 WL 1120913 at *5 (Tex.

App.—San Antonio Mar. 11, 2015, no pet. h.). In that case, the court

acknowledged that the non-parent was heavily involved in children’s

lives. Nonetheless, the children’s mother “was at all times in control of

decisions regarding the children’s welfare, including their health care

and education,” and the former live-in lacked standing. 2015 WL

1120913 at *5.




                                      -16-
       Different rules, or at least different levels of scrutiny, are

appropriate for the two types of cases. When the parent has already

agreed that another person in a separate household may share custody

of the child, it is more reasonable to conclude that there has been some

relinquishment of control. When the parent and non-parent share the

same    household,   courts   should   be   more   reluctant   to   find   a

relinquishment of control or abdication of responsibility. When the non-

parent makes breakfast for the child or drives her to school, it can never

be clear that she is acting on her own, contrary to the parent’s will.

People can share household responsibilities without giving up rights to

their children.

       Charles Lankford is away from home longer than he would like.

The nature of his work required it, and that work was undertaken with

Stephanie’s approval (R157-58), and it benefited Stephanie and her son,

as well as T.D.L. (R158-59). The money Charles earned even allowed

Stephanie not to work outside the home. See Pet. at 7 n. 2. But many a

parent is away longer than he or she would wish, whether it is a doctor

or lawyer, who must spend long hours at the hospital or in the office, an




                                   -17-
offshore oil worker, or a salesman or businessman who must live most

of his life out of his suitcase.

      Are these parents at risk of losing possession of their children to

their second spouses? And if so, would they face the same risk from a

nanny, housekeeper, or au pair? They, too, “develop a close relationship

with the child over time.” If Stephanie has standing, why wouldn’t a

nanny?

VII. The trial court should not have considered T.D.L.’s
     interview to determine standing.

      There is no question that the trial court considered the child’s

interview statements in determining whether Stephanie had standing:

   • “[T]here [were] lots of responses [in the interview] did assist me in

      forming my opinion to allow step-mother to have standing . . . .” 2d

      Supp. R. at 14.

   • “And I think her points made in her interview were very

      important in the decision making by the court.” Id. at 15.

   • “[Y]ou will see in the record from the youngster that there are

      relevant facts therein to make a decision on standing.” Id. at 14.

While Section 153.009(b) allows the court to consider the interview to

“determine the child’s wishes as to . . . any other issue in the suit

                                   -18-
affecting the parent-child relationship,” that is limited to determining

the child’s wishes, not a legal question such as standing. If her

testimony were to be considered for such purposes, it would have to

conform to the rules of evidence, i.e., under oath, in court (as opposed to

hearsay), and with the opportunity for counsel to pose questions and

cross-examine her.

     Not only did he rely upon incompetent evidence directly, the trial

court allowed it to color his weighing of the testimony of actual

witnesses. 2d Supp. R. at 13-14. Specifically, the child’s interview

encouraged him to give undue weight to Stephanie’s physical presence

in the home, to disregard Charles’s direction and guidance of Stephanie

and the child over the telephone, and even to forget that Charles called

Stephanie three to five times a day. R120, 138, 159, 167.

     The issue at the hearing was standing, not custody, and the trial

court abused his discretion when he considered T.D.L.’s statements.

                             CONCLUSION

     Stephanie Smith advocates a very lax standard for standing that

would make parents’ custody of their children vulnerable to claims by

stepparents and others who may be living with the parent and child.


                                   -19-
     Charles Lankford, remains deeply involved in his daughter’s life.

Charles has not relinquished his parental control, and the Court should

grant this petition to protect his right to rear his daughter.



                                PRAYER

For the reasons stated, and for those stated in their original Petition for

Mandamus, Charles Dwayne Lankford and Roberta Gresham, Relators,

pray that the Court issue a writ of mandamus directing the trial court

to (1) vacate its order of May 12, 2015, overruling their pleas to the

jurisdiction, (2) vacate its temporary orders dated May 12, 2015, and (3)

dismiss Stephanie Smith’s motion to modify for want of jurisdiction.

Relators also request such other and further relief as may be just.

Respectfully submitted,

                                   ALDERMAN CAIN & NEILL PLLC
                                   122 East Lufkin Avenue
                                   Lufkin, Texas 75901-2805
                                   Telephone: (936) 632-2259
                                   Facsimile: (936) 632-3316
                                   By: /s/ Robert T. Cain, Jr.
                                   Robert T. Cain, Jr.
                                   State Bar No. 03607200
                                   rcain@aldermancainlaw.com
                                   Robert Alderman, Jr.
                                   State Bar No. 00979900
                                   balderman@aldermancainlaw.com

                                    -20-
                                Attorneys for Relator
                                Charles Dwayne Lankford

                                Robert L. Flournoy
                                State Bar No. 07173000
                                bob@rlflournoylaw.com
                                LAW OFFICE OF
                                ROBERT L. FLOURNOY
                                P.O. Box 1546
                                Lufkin, Texas 75901
                                Telephone: (936) 639-4466
                                Facsimile: (936) 634-3190

                                Attorney for Relator
                                Roberta Gresham


                  CERTIFICATION OF REVIEW

Pursuant to Texas Rule of Appellate Procedure 52.3(j), the undersigned
counsel for Relator certifies that he has reviewed this Reply and
concluded that every factual statement in the Reply is supported by
competent evidence included in the Appendix or Record.

                                /s/ Robert T. Cain, Jr.
                                Robert T. Cain, Jr.




                                 -21-
 CERTIFICATE OF COMPLIANCE WITH TEX. R. APP. P. 9.4(i)

      This brief was prepared in Century Schoolbook 14 pt. typeface (12
pt. for footnotes) using Word for Mac 2011, and, in reliance on the word
count of the computer program used to prepare the document, I certify
that this petition contains 2,954 words, excluding those matters
excluded by Texas Rule of Appellate Procedure 9.4(i)(1).


                                 /s/ Robert T. Cain, Jr.
                                 Robert T. Cain, Jr.




                                  -22-
                    CERTIFICATE OF SERVICE

      I certify that the foregoing reply was electronically filed with the

Clerk of the Court using the electronic case filing system of the Court. I

also certify that a true and correct copy of the foregoing was served via

e-service or email on the following counsel of record:

·     Mr. Thomas W. Deaton
      tommydeaton@lufkinlaw.com
      Ms. Carolyn Carter Bell
      cbell@lufkinlaw.com
      DEATON LAW FIRM
      103 East Denman Avenue
      Lufkin, Texas 75901

      Counsel for Real Party in Interest Stephanie Smith

and

·     The Hon. Joe Lee Register
      P. O. Box 190
      Lufkin, Texas 75901
      lberry@angelinacounty.net

      Respondent

on July 2, 2015.

                                  /s/ Robert T. Cain, Jr.
                                  Robert T. Cain, Jr.




                                   -23-
                AFFIDAVIT OF ROBERT L. FLOURNOY

STATE OF TEXAS     §
                   §
COUNTY OF ANGELINA §

     BEFORE ME, the undersigned authority, on this day personally

appeared Robert L. Flournoy, who being by me first duly sworn, stated

on his oath the following:

     "My name is Robert L. Flournoy. I am over twenty-one years
     of age, am of sound mind, and competent to make this
     affidavit. Unless otherwise stated, all facts set for in this
     Affidavit are
                .• true and based on my personal knowledge.

     "I am the attorney for one of the Relators in the case below,
     and have been such ever since the case below was filed. The
     following documents attached hereto are true and correct
     copies of the originals filed in the case below:

           1.     Motion to Unseal Court Record.

           2.     Opposition to Motion to Unseal.

           3.     Order on Motion to Unseal

     "Also attached is a true copy of a transcript of a hearing held
     in the case below on June 24, 2015.

     "Said documents are material to Relators' claim for relief in
     this proceeding and are included in the record in support of
     Relators' Petition for Writ of Mandamus."


                                     24
Further Affiant saith naught.


                                                 Robert L. Flournoy

     SUBSCRIBED AND SWORN TO before me, the undersigned
authority, on this the v'o day of June, 2015, to certify which witness
my hand and seal of office.


    {;J!J[!:,;_'?t          GERALDINE WILLIAMS   Notary Public - State of Texas
    \J.�..;J,.           MY COMMISSION EXPIRES
     --��;,·,i>;,J.�----     November 28, 2018




                                                   25
        INDEX TO SECOND SUPPLEMENTAL RECORD.

Title                                                    Record
                                                          Page
                                                           No.

Motion to Unseal Court Record                              1

Opposition to Motion to Unseal                             3

Order on Motion to Unseal Court Record                     6
Transcript of Hearing on Motion to Unseal Court Record
held on June 24, 2015                                      7
SECOND SUPPLEMENTAL RECORD
DEATON
    LAW
      FIRM       936           P.002/004




             §
             §
             §
             §
             §




                       a



matter.




                           a




                                001
09:     DEATON
            LAW
              FIRM        P. 003/004




      a true         or




                          002
THE   OF   §
           §

           §
           §




THE




                     a




               003
                state

           no       reason to



      to

not                           it a




                        004
005
                                      NO. DVwJS,254-02-11

 IN THE INTEREST OF                             § IN COUNTY COURT AT LAW
                                                §
 T.D.L.                                         § NUMBERONE
                                                §
A CHILD                                         § ANGELINACOUNTY,TEXAS


                             MOTION TO UNSEALCOURT RECORD
                    ORDER O:N"

          OnJune23, 2015,the CourtconsideredStephanieSmith's Motionto UnsealCourtRecord

ofT.D.L, a minor, and ORDERS: that the Motionto UnsealCourt Recordis GRANTED

pursuantto TexasFamily Code §153.009(±).

          IT IS ORDEREDthat the Clerk of the Courtshallunsealthe transcriptof the Court's

interviewwith the child the subjectof this suit conductedon or aboutMarch 6, 2015. IT IS

FURTHERORDEREDthat the Court Reportershall transcribethe interview in that it is a part of

the recordin this matter.



SIGNED on     -~------2-~........._2-_()_/.S_.


                                           ~~



                                                                                            006
                                                                     1



 1                              REPORTERS RECORD
                             VOLUME 1 OF 1 VOLUMES
 2

 3

 4                TRIAL COURT CAUSE NO. DV-35254-02-11

 5

 6   IN THE INTEREST OF:        )    IN THE COUNTY COURT

 7   MIKEL DWAYNE LANKFORD      )    AT LAW NUMBER ONE

 8   AND TORRANCE DEANN         )

 9   LANKFORD, CHILDREN         )    ANGELINA COUNTY, TEXAS

10

11   _____________________________________________________

12                              MOTION HEARING

13   _____________________________________________________

14

15                  On the 24th day of June, the following
     proceedings came on to be heard in the above-styled and
16   numbered cause in County Court at Law No. 1 before the
     Honorable Joe Lee Register, Judge Presiding, held in Angelina
17   County, Texas.

18                  Proceedings reported by computerized stenotype
     machine.
19

20

21

22                              Wendy Wilkerson
                            Official Court Reporter
23                         County Court at Law No. 1

24

25




                                                              007
                                                                 2



1                         A P P E A R A N C E S

2

3    REPRESENTING PETITIONER MR. LANKFORD:

4                               MR. ROBERT ALDERMAN, JR.
                                Attorney at Law
5                               Alderman & Cain
                                122 E Lufkin Ave.
6                               Lufkin, Texas 75901
                                (936) 632-2259
 7

 8   REPRESENTING RESPONDENT:

 9                              MR. ROBERT L. FLOURNOY
                                Attorney at Law
10                              P.O. Box 1546
                                Lufkin, Texas 75901
11                              (936) 639-4466

12

13   REPRESENTING PETITIONER MS. SMITH:

14                              MR. TOMMY DEATON
                                Attorney at Law
15                              P.O. Box 1964
                                Lufkin, Texas 75902
16                              (936) 637-7778

17

18

19

20

21

22

23

24

25




                                                           008
                                                                        3



 1                          P R O C E E D I N G S

 2   June 24, 2015

 3

 4                   THE COURT:   Gentleman, it's come to my attention

 5   Mr. Deaton filed a motion with the Court requesting that he be

 6   able to secure a copy of the record of the testimony or

 7   statements given by the minor child in this matter, T.D.L. in

 8   my chambers, and one of the purposes of having that record

 9   unsealed and for him to be able to secure a copy of it.

10                   I received that request, or motion, and I

11   contacted Mr. Alderman and said I will not do that until such

12   time I've given everybody an opportunity to visit the law on

13   the issue and also to have your say on the matter.

14                   Mr. Flournoy, you have the same course right as

15   both those two guys.

16                   MR. FLOURNOY:   And I've seen the motion and

17   response and I concur with all that.

18                   THE COURT:   All right.   Okay.   Are you, I assume

19   that, but you're opposing the unsealing?

20                   MR. FLOURNOY:   I am, Your Honor.   I think it's

21   immaterial.

22                   THE COURT:   Well, I did take it on myself to do

23   a little research on this matter, and Mr. Flournoy, I will

24   email to your office a paper written by one of the familiar

25   faces in the family law bar in dealing with trends and




                                                               009
                                                                          4



 1   appellate cases involving especially standing, it's a

 2   well-written paper and I will commend your reading to that once

 3   I get your email address and send it both to Mr. Alderman and

 4   Mr. Deaton on the matter.

 5                   Mr. Deaton, you've made a request for the record

 6   to be sealed, I mean what is your position on the request?

 7                   MR. DEATON:    Well, our position is, Judge, under

 8   Section 153 point, what is that, 009 that we're entitled to

 9   have a record supplemented to include the interview with the

10   minor child.   And I might, if I remember correctly with judge

11   the interview was transcribed only because Mr. Alderman

12   requested it be transcribed.    And so I think we're entitled to

13   have the record supplemented and go up with the, on the writ of

14   mandamus proceeding so the court can at least review it to see

15   if it has any application.    And I don't think, I think it's

16   pretty much standard procedure,

17                   Judge, so we're requesting it be transcribed in

18   compliance with our motion and order Mr. Powers to transcribe

19   and supplement the record with it.

20                   THE COURT:    Mr. Alderman.

21                   MR. ALDERMAN:    Yes, sir, brief response.   And I

22   believe --

23                   THE COURT:    I read your motion of opposition to

24   the same.

25                   MR. ALDERMAN:    Well, my comments are going to be




                                                              010
                                                                        5



 1   consistent with that response, Your Honor.    I acknowledge that

 2   for purposes of Chapter 153 that the interview is should be

 3   part of the record for purposes of Chapter 153 issues

 4   considering the interview was requested by opposing counsel

 5   when the interview was conducted I did request on behalf of my

 6   clients it at least be transcribed and I believe it was the

 7   Court's own motion sealed it at the time and for whatever

 8   period it was going to remain sealed never really addressed for

 9   purposes of 153 certainly the statute says it's entitled to be

10   made part of the record.     The basics of our motion to oppose is

11   this that 153 deals with conservatorship it does not deal with

12   standing.   One or two deals with standing.   The mandamus that

13   is before the Court, the mandamus that is part of this court

14   proceeding and is pending before the appellate court deals only

15   with Chapter one or two.     I don't believe that a record of that

16   interview would be proper testimony for that.    And on that

17   basis is why I am requesting that it not be unsealed at this

18   time simply because what we have pending before the court is

19   only on one or two.

20                   I understand there are a couple of cases that

21   deal with the automatic right to have the record transcribed.

22   I reviewed all of those cases.    All of those cases deal with

23   153 issues none of those cases deal with standing issues.

24   That's our standing, Your Honor.

25                   THE COURT:    Mr. Flournoy.




                                                              011
                                                                        6



 1                  MR. FLOURNOY:    Mine is same.   No use repeating

 2   it.

 3                  THE COURT:    Mr. Deaton, response.

 4                  MR. DEATON:    Yes, just briefly, Judge.   You

 5   know, I think that is within the purview of the title of Court

 6   to determine if the interview of the child has any application

 7   to this and remember the questions that we're talking about are

 8   care, custody and control of this child.   To the extent that

 9   the interview bears on that I think the court ought to have

10   access to it so they can make an informed decision to     say it's

11   not Mr. Alderman does not know, he doesn't know and

12   Mr. Flournoy doesn't know and I don't know at this point but I

13   would like to have the court have access, they make a

14   determination if they determine it's not applicable then I'm

15   sure they won't consider it but I think they're entitled to

16   have it.

17                  MR. ALDERMAN:    If I might, Your Honor, the

18   motion to confer that was presented by opposing counsel

19   specifically dealt with conservatorship issues, did not deal

20   with the standing issue, there was no reason at the time in our

21   clients' mind and Mr. Flournoy's clients to believe that

22   anything dealing with the conference was going to be dealing

23   with standing issues.   We certainly had no right or opportunity

24   to address whatever that testimony may have been nor had we had

25   any reason to believe that whatever that testimony may have




                                                               012
                                                                         7



 1   been and I say testimony, it was comments I don't know it was

 2   sworn testimony or not it was in front of us and we didn't have

 3   any opportunity to address it but there was still no reason to

 4   believe it was going to be part of the court's consideration of

 5   the standing issues.    Those items have also been addressed in

 6   this opposition I'm simply reiterating those.     Thank you, Your

 7   Honor.

 8                     THE COURT:   First of all, neither three of you

 9   have the benefit of knowing what the young lady stated.     Or I

10   have made some comments I think to some of you as to dislikes

11   that youngster had.    In this matter it's hard for me as a judge

12   to interview a child in chambers and to block my ears on the

13   part of things the child relates to me but at the same time

14   when I interview the child and in this case the crux of the

15   case, that is the main point and argument is standing.     I would

16   say probably half of the comments that the young lady made to

17   me dealt with questions that I propounded to her relating to

18   who's been the caretaker which probably goes to the heart of

19   the issue that both of you find yourselves and tied up in court

20   of appeals now.

21                     I did rely heavily on the comments of the child

22   as to sorting out which one of the witnesses that you produced

23   in court was basically telling one side of the story and the

24   other one telling another side of the story.     This young lady

25   made it very clear who was the responsible adult for her care




                                                               013
                                                                      8



 1   for not one year but a number of years.   Save and except a

 2   period of time her father was in the United States for the

 3   period of 35 days each year she did relate to me that the

 4   grandmother had probably been in the picture only on a few

 5   occasions in the last couple of years.

 6                  In looking at it and I have actually asked many

 7   colleagues as to the thoughts and I have had an opportunity to

 8   view all the cases involved it's kind    of hard when you're

 9   having a custody issue and there's standing is an issue that

10   you don't look at the care, custody and control of the child.

11   Sometimes judges say I'm going to go with the status quo on

12   temporary orders because that's what's been going on.   But in

13   the case involving this young lady there was lots of responses

14   that did assist me in forming my opinion to allow step-

15   mother to have standing because I wanted to make sure who this

16   young lady believed to be her caretaker, which I think is

17   extremely important in this case.

18                  In viewing, and Mr. Alderman, to the difference

19   in one or two, Section one or two and 153 of the Family Code I

20   think you probably can't take one without the other but at the

21   same time does what the young lady spoke about have anything to

22   do with standing.   And I think you're going to find once you

23   review the record that you're going to find that was a high

24   part of it and her statements were on point on those issues.

25                  So, I can't say that I turned deaf ears to her




                                                             014
                                                                         9



 1   on those points in trying to rule on this matter.    But I think

 2   probably the right thing to do is allow the court of appeals to

 3   look at this case and determine because I want everybody to

 4   have a fair shot in their argument who has standing who doesn't

 5   have standing.   And I think her points made in her interview

 6   were very important in the decision making by the court.       I

 7   also looked in the Section 153 of the Texas Family Code

 8   sub-section F says on the motion of the parties, amicus

 9   attorney or attorney ad litem for child or court's own motion

10   the court shall cause a record of the interview to be made when

11   the child is 12 years of age or older.   I think in this matter

12   I don't think there's any question the child is 12 years of age

13   or older.   That's not an issue.   Further says a record of the

14   interview shall be made part of the record in this case.

15                    I did look at the Nichol case.   I'm not sure if

16   it makes a big difference whether or not you place it in

17   standing issue or place it in the 153 in this matter but it

18   appears that from my prospective and what you will see in the

19   record from the youngster that there are relevant facts therein

20   to make a decision on standing.    I want to give the court of

21   appeals the most information they have in its being able to

22   rule on this matter this is a case and the subject matter.

23   Both of you realize there's been lots of different courts of

24   appeals with different opinions in this matter and I don't know

25   if it's ever going to end.   Only way for it to end is for the




                                                              015
                                                                      10



 1   Supreme Court to take this matter up.

 2                   But I will grant the order unsealing the

 3   transcription and the record of the child's statements in my

 4   interview with her and I believe that is probably made part of

 5   the record and feel what the court of appeals really needs to

 6   look at to look at the entire case before them and I'll sign an

 7   order accordingly.

 8                   MR. ALDERMAN:    Thank you, Your Honor.

 9                   MR. DEATON:    Thank you, Judge.   May we be

10   excused?

11                   THE COURT:    Yes.   And thank you for coming in on

12   short notice.

13

14                   (Proceedings concluded.)

15

16

17

18

19

20

21

22

23

24

25   THE STATE OF TEXAS   )




                                                               016
                                                                     11



 1   COUNTY OF ANGELINA   )

 2

 3                  I, Wendy Wilkerson, Official Court Reporter in

 4   and for the County Court at Law of Angelina County, State of

 5   Texas, do hereby certify that the above and foregoing pages

 6   contain a true and correct transcription to the best of my

 7   ability of the proceedings (or all proceedings directed by

 8   counsel to be included in the Reporter's Record, as the case

 9   may be), in the above-styled and numbered cause, all of which

10   occurred in open court or in chambers and were reported by me.

11                  I further certify that this transcription of the

12   record of the proceedings truly and correctly reflects the

13   exhibits, if any, offered by the respective parties.

14                  I further certify that the reporter's record

15   cost $55.50 and was paid for by Mr. Davis, Defendant.

16                  WITNESS MY OFFICIAL HAND this the 29th day of

17   June, 2015.

18

19                                 /s/Wendy Wilkerson
                                   CSR: 5744 Exp: 12/31/15
20                                 Official Court Reporter
                                   County Court at Law No. 1
21                                 130 Marina Rd. AN
                                   Crockett, Texas 75835
22                                 (281) 507-3422

23

24

25




                                                             017
