                           COURT OF APPEALS
                           SECOND DISTRICT OF TEXAS
                                FORT WORTH


                                  NO. 2-09-218-CV


DINAH LYNN VASQUEZ                                                     APPELLANT

                                            V.

PHILLIP JOSEPH VASQUEZ                                                   APPELLEE

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            FROM THE 393RD DISTRICT COURT OF DENTON COUNTY

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                          MEMORANDUM OPINION 1

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                                  I. INTRODUCTION

      Appellant Dinah Lynn Vasquez brings this appeal complaining of the

possession and access portions of a final decree of divorce. In two issues, Dinah

argues that the trial court’s failure to make findings of fact and conclusions of law




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           See Tex. R. App. P. 47.4.
was error and that the trial court’s decision limiting Dinah’s possession of and access

to her minor child 2 was an abuse of discretion. W e will affirm.

             II. P ERTINENT P ROVISIONS IN THE F INAL D ECREE OF D IVORCE 3

       The final decree of divorce appointed Appellee Phillip Joseph Vasquez as sole

managing conservator and Dinah as possessory conservator of their two children.

The final decree contains a modified possession order, allowing Dinah visitation with

the children on the first and third weekends of each month (with one of those

weekends containing an overnight visitation period) and five consecutive days in the

summer. The final decree also states that if the younger daughter is not comfortable

with the weekend visitation schedule, the parties should set up a status hearing with

the trial court.

                   III. F INDINGS OF F ACT AND C ONCLUSIONS OF L AW

       In her first issue, Dinah argues that the trial court’s failure to make findings of

fact and conclusions of law was error. Dinah argues that a new trial on the issue of

possession and access is therefore necessary. This court, on its own motion,

abated the case for the trial court to enter findings of fact and conclusions of law, and

a supplemental clerk’s record containing findings of fact and conclusions of law has



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        Although there were two minor children at the time the decree of divorce
was signed, one of the children has now attained the age of majority.
       3
        Dinah appeals only the possession and access orders, not the granting of
the divorce or the division of property.

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been filed. W e therefore overrule Dinah’s first issue as moot. See Zwick v. Zwick,

No. 02-08-00182-CV, 2009 W L 1564928, at *2 (Tex. App.—Fort W orth June 4,

2009, no pet.) (mem. op.) (citing Moore v. First Fin. Resolution Enters., Inc., 277

S.W .3d 510, 514 (Tex. App.—Dallas 2009, no pet.), and holding that trial court’s

entry of findings of fact and conclusions of law following abatement for same mooted

complaint that such findings and conclusions had not been made).

        IV. P OSSESSION AND ACCESS O RDER W AS S UPPORTED B Y R ECORD

      In her second issue, Dinah argues that the trial court abused its discretion by

limiting her possession of and access to her minor child. Specifically, Dinah argues

that there is no evidence in the record that harm will come to her child if she is

awarded standard possession and access.

      The public policy of this State is to assure continuing contact between children

and parents who have established the ability to act in their child’s best interest; to

provide a safe, stable, and nonviolent environment for the child; and to encourage

parents to share in their child’s development after separation or divorce. Tex. Fam.

Code Ann. § 153.001 (Vernon 2008).            W hen determining issues related to

conservatorship or possession of and access to the child, the best interest of the

child is the primary consideration. Id. § 153.002; In re M.S., 115 S.W .3d 534, 547

(Tex. 2003).




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       The Texas Family Code provides guidelines for trial judges to follow when

determining the periods of possession for a possessory conservator. Tex. Fam.

Code Ann. § 153.192(b) (Vernon 2008). The Texas Family Code also provides that

there is a rebuttable presumption that the standard possession order (1) provides

reasonable minimum possession of a child for a parent named as a possessory

conservator or joint managing conservator and (2) is in the best interest of the child.

Id. § 153.252. However, the Texas Family Code allows a trial court to deviate from

the standard possession order. W hen deviating from the standard possession order,

a trial court may consider (1) the age, developmental status, circumstances, needs,

and best interest of the child; (2) the circumstances of the managing conservator and

of the parent named possessory conservator; and (3) any other relevant factor. Id.

§ 153.256.

       In determining the issues of conservatorship and possession of and access

to the child, the trial court is given wide latitude in determining the best interest of the

child and will be reversed only for an abuse of discretion. In re C.R.T., 61 S.W .3d

62, 65 (Tex. App.—Amarillo 2001, pet. denied) (citing Gillespie v. Gillespie, 644

S.W .2d 449, 451 (Tex. 1982)). This is, in part, because the trial court is in a better

position having “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.). Thus, when the



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testimony of witnesses is conflicting, this court will not disturb the credibility

determinations made by the factfinder. See id. A reviewing court’s holding that a

trial court did not abuse its discretion implies that the evidence contained in the

record rebutted the presumption that the standard possession order was reasonable

and in the child’s best interest. See Niskar v. Niskar, 136 S.W .3d 749, 756 (Tex.

App.—Dallas 2004, no pet.).

      Dinah testified that Phillip suffers from depression and that there have been

times when she felt like he was potentially dangerous to himself. She said that he

would lock himself in the bedroom, that he would break things, and that he would go

into fits of rage in front of the children. Dinah also said that if Phillip had a bad day

at work, he took it out on their daughter by whipping her, that he was verbally and

physically abusive, and that he played mind games. Dinah testified that the police

came to their house in 2004 and made Phillip leave. Dinah said that Phillip went to

strip clubs and viewed pornography. He also had a girlfriend, whom their minor

daughter did not like. Dinah testified that there was a time while the divorce was

pending when Phillip was not regularly washing the girls’ clothes, and the girls were

not clean because they had not bathed in three or four days. Dinah’s mother testified

that Dinah is a wonderful mother whose daughters love her dearly. Moreover, Celia

Lowry, who counseled Dinah from 2004 to 2005, testified that she believed that

Dinah was capable of parenting her children and capable of making rational

decisions.

                                           5
        Phillip admitted that he has allowed his girlfriend to babysit his daughters

while he went out of town and that he did not allow Dinah to care for their children

during that time. Phillip said that Dinah was violent and had pulled the phone out of

the wall on one occasion when he was trying to call for help. He said that he had

never hit Dinah but admitted that he had called her a “cow” and had bitten her on two

occasions when he was trying to defend himself because she had attacked him.

Phillip said that he took Lexapro from August 2004 to May 2005 because he was

very upset and distraught; he also said that he had locked himself in the bedroom

after a fight with Dinah and that he had destroyed things in the home. He testified

that he was the one who had called the police in 2004 and that he had left the

residence on his own, leaving the children with Dinah because she had calmed

down.    Phillip agreed that Dinah has never been diagnosed as schizophrenic,

delusional, or paranoid; that CPS has never been called on Dinah; and that there

have been no incidents with the police involving Dinah and the children. Phillip

testified that he no longer believes that Dinah’s visits should be supervised but that

he is requesting a restricted visitation schedule. Phillip admitted that he has visited

strip clubs and looked at pornography and said that Dinah looked at pornography

with him. Dr. Flynn, who was appointed by the court to conduct a social study, noted

in his report that Phillip is likely to be seen by others as unusually stable and

predictable, that he displays a high level of tolerance for others’ inconsistencies, and

that he is a counterpoint to Dinah’s mercurial personality.

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      In addition to the above testimony, the trial court also heard live testimony

from Dr. Flynn and Dr. Cook, 4 both of whom had interviewed Dinah. Dr. Flynn

testified that Dinah does not have good filters, and therefore her ability to process

stimuli is impaired. He said that Dinah’s impaired thinking will cause her to be

unpredictable and erratic and that it will be hard to get her to think through a

problem.    He noted that several observers had reported that Dinah had

unpredictable temper outbursts. He, however, did not find any physical abuse of the

girls by Dinah and said that there had been no CPS referrals. Dr. Flynn testified that

Dinah is not likely to cause harm to her daughters by any affirmative act and that he

does not believe that she should be required to have supervised visits. He opined

that there will be problems if Dinah has the girls for more than one night and that a

full thirty-day summer visit would be “asking for trouble.” He thinks that in a few

years, the minor daughter will be able to decide to go home (to Phillip’s house) if

things go awry while she is visiting Dinah. He urged the court to find a balance so

that “we don’t pay the huge price of supervision and restriction; but, on the other

hand, we don’t take the unnecessary risk of putting the child in the care of someone

. . . whose conduct is not particularly stable and predictable.”

      Dr. Cook testified that he performed an evaluation on Dinah in April 2005.

After conducting two clinical interviews and administering three standardized


      4
       Dinah was referred to Dr. Cook by her counselor, Patricia Myers, because
she wanted Dr. Cook to assess Dinah for the possibility of a delusional disorder.

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psychological tests on Dinah, Dr. Cook saw nothing out of the ordinary, “nothing

approaching delusional.” He said that Dinah’s verbal responses were organized,

coherent, logical, and showed no intellectual disorganization; moreover, all three

tests were negative for delusional thinking and for any kind of psychiatric disorder.

Although Dinah showed subtle paranoid qualities, they did not rise to the level of

abnormal, and her clinical profile was within normal limits with no indications of any

serious psychological problems. Dr. Cook said that the tests showed that Dinah is

usually a confident, socially outgoing, and reasonably well-adjusted person. Dr.

Cook said that it is highly unlikely that Dinah would engage in serious distortions of

her social environment or develop full-blown delusional thinking, so he does not

believe that Dinah should be denied access to her children or be required to have

supervised visitation.

      The trial court stated in its findings of fact that it found the testimony of Dr.

Flynn to be more credible and more persuasive than the testimony of Dr. Cook

because it was based on more recent interviews (i.e., interviews from 2007 to 2008

as opposed to the interview in April 2005 conducted by Dr. Cook); Dr. Flynn’s report

was more extensive in that it included interviews with both parties and the children,

whereas Dr. Cook interviewed only Dinah; and Dr. Flynn focused on what he

described as Dinah’s “impaired thinking” and explained that her responses to things

that affect her are governed very much by her emotions and not by any kind of a

logical rational basis, making her unpredictable. In Dr. Flynn’s testimony, and in the

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supporting social study and supplemental letter, he described in detail why the best

interest of the children would best be served by restricting Dinah’s visitation with

them.5        After the trial court concluded that Dinah’s “impairment,” i.e., her

“‘unpredictable temper outbursts[‘] []called for less frequency and less duration in her

visits with her children than what would normally be granted to a parent who did not

have such impairment,” the trial court followed Dr. Flynn’s recommendation that

Phillip be appointed sole managing conservator of the children and his

recommendation that Dinah’s visitation with the children be restricted. The trial court

left open the possibility of Dinah’s modifying her visitation with the minor child in the

future.

          Although the witnesses’ testimonies were contradictory at times, the trial court

was in the best position to judge the witnesses’ credibility. Moreover, only one of the

psychologists—Dr. Flynn, who was appointed by the trial court to perform a social

study—had recently interviewed the parties and the children, and his testimony and

report supported naming Phillip as sole managing conservator and limiting Dinah’s


          5
        Three months after Dr. Flynn’s original report, he supplemented it in light
of a phone conference with Patricia Myers, who had been counseling the children for
an extended period of time. Dr. Flynn reported that Myers offered her “strongly-held”
opinion that Dinah’s periods of possession with the children should be supervised
because her daughters were frightened of her anger. Myers stated that Dinah was
not psychologically stable and referenced an earlier psychological evaluation by Dr.
Tom Cook that had used the word “paranoia” to describe Dinah Vasquez’s
psychological functioning. Dr. Cook, however, testified at the final trial that although
Dinah’s psychological tests from 2005 showed subtle paranoid qualities, he tried to
make clear that he was not saying that she was paranoid.

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possession of and access to her child. Thus, the record supported the trial court’s

decision to vary from the standard possession order. 6

         Accordingly, we hold that the trial court did not abuse its discretion by entering

a modified possession and access order that was in the child’s best interest. Cf. In

re Marriage of Swim, 291 S.W .3d 500, 507 (Tex. App.—Amarillo 2009, no pet.)

(holding that trial court did not abuse its discretion by restricting father’s possession

of and access to child when record demonstrated that father had drug dependence,

type one bipolar disorder, a history of drug relapses, and past medication cessation);

Warnock v. Warnock, No. 14-94-01049, 1996 W L 606987, at *6–7 (Tex.

App.—Houston [14th Dist.] Oct. 24, 1996, no writ) (not designated for publication)

(holding that record contained ample evidence to support trial court’s modification

order when record revealed that mother suffered from at least moderate emotional

and psychological problems and that clinical psychologist opined that mother would

be less able to meet her children’s needs). W e therefore overrule Dinah’s second

issue.



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         To the extent that Dinah’s second issue may be liberally construed as
challenging the sufficiency of the evidence to support the trial court’s decision to
deviate from the standard possession order, the evidence in the record is legally and
factually sufficient to support the findings of fact, mentioned above, which were relied
upon by the trial court in concluding that a modified possession order was
appropriate. See Askew v. Askew, No. 02-04-00109-CV, 2005 W L 2471539, at *3
(Tex. App.—Fort W orth Oct. 6, 2005, no pet.) (mem. op.) (holding that the evidence
was legally and factually sufficient upon which the trial court could exercise its
discretion in appointing father as sole managing conservator).

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                                V. C ONCLUSION

     Having overruled Dinah’s two issues, we affirm the trial court’s judgment.




                                                 SUE W ALKER
                                                 JUSTICE

PANEL: LIVINGSTON, C.J.; DAUPHINOT and W ALKER, JJ.

DELIVERED: June 3, 2010




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