                             NUMBER 13-07-00046-CV

                            COURT OF APPEALS

                  THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI - EDINBURG

                     IN THE INTEREST OF V.N.S., A CHILD


                   On appeal from the 284th District Court
                       of Montgomery County, Texas.


                         MEMORANDUM OPINION
                 Before Justices Rodriguez, Garza, and Vela
                  Memorandum Opinion by Justice Garza
      On September 27, 2006, appellant, Kimberlee Schmidt, and appellee, Robert Mark

Lair, were appointed joint managing conservators of their nine-year-old daughter, V.N.S.
Lair was given the exclusive right to designate V.N.S.’s primary residence. Schmidt filed

a motion for new trial on October 27, 2006, which the trial court denied. By four issues,

Schmidt now appeals, contending that the trial court abused its discretion by requiring

Schmidt to have supervised possession, limited geographically and limited to daytime

hours, and that she was denied effective assistance of counsel. We affirm the trial court’s

judgment.

                                     I. BACKGROUND

      On March 1, 2000, Schmidt and Lair entered into an agreed order establishing Lair

as the father of Schmidt’s daughter, V.N.S. The parties were named joint managing
conservators and Schmidt was given the exclusive right to determine the child’s residence.

See TEX . FAM . CODE ANN . § 101.016 (Vernon 2002). After being denied Christmas

visitation with V.N.S., Lair filed a motion for the issuance of a writ of attachment on

December 27, 2005. The trial court granted the motion and ordered the clerk to issue the

writ of attachment.     In response, Schmidt filed an “Application for Injunction and

Modification of Visitation” on December 28, 2005, seeking an order barring the writ of

attachment from being issued and requesting that Lair’s visitation with V.N.S. be

supervised. In support of this request, Schmidt cited Lair’s arrest history and V.N.S.’s

alleged fear of her father.

       The trial court ordered that V.N.S. be placed temporarily with Laura Nash Thomas,

Schmidt’s mother and V.N.S.’s grandmother. The court also ordered that Schmidt’s live-in

boyfriend (now husband), Jay Edward Kimberly, a registered sex offender, was to have no

contact with V.N.S. unless supervised by Thomas.

       Lair filed suit to modify the parent-child relationship order, noting that Schmidt was

living with Kimberly, who had been convicted three times for indecent exposure to a minor.

On June 6, 2006, a jury trial was held. In accordance with the jury’s verdict, the court

ordered on September 27, 2006 that: (1) Lair be given the exclusive right to designate the

primary residence of V.N.S.; (2) Lair be permitted to designate the primary residence of the

child with a geographic restriction; and (3) that the geographic area be within the state of
Texas, and within 400 miles of Schmidt’s residence in Montgomery County. The trial

court’s order further stated as follows:

       . . . Kimberlee V. Schmidt shall not remove the child from Dallas County,
       Texas or any county contiguous to Dallas County, Texas without further
       modification of this Order. . . . The Court finds that credible evidence has
       been presented that Kimberlee V. Schmidt has a history or pattern of
       exposing the child to a convicted sexual predators [sic], her husband, Jay
       Edward Kimberly, with whom she resides. IT IS THEREFORE ORDERED
       that visitation shall be under the supervision of Nancy Hardin[, Schmidt’s
       maternal grandmother].

       The trial court also awarded Lair’s attorneys and the amicus attorney their requested

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fees. Schmidt’s attorney was denied her requested fees based on the trial court’s finding

that the “fees were not reasonable given the quality of representation.” On October 27,

2006, Schmidt filed a motion for new trial. The motion was denied on December 5, 2006.

This appeal ensued.

                                       II. DISCUSSION

                               A. Supervised Possession

       By her first three issues, Schmidt argues that the trial court erred by: (1) requiring

Schmidt to have supervised possession; (2) ordering that Schmidt’s visitation be within

Dallas County or in counties wholly contiguous to Dallas County; and (3) ordering that
Schmidt’s visitation be limited to only daytime hours, and only under the supervision of

Schmidt’s maternal grandmother, Nancy Hardin.           Schmidt alleges that “there is no

evidence that such restrictions are in the best interest of her daughter” and “there is no

evidence in the record that [she] was in any way neglectful during the first seven years of

her daughter’s life . . . nor that she is likely to violate the court’s order prohibiting her

husband, Kimberly, access to the child.”

1.     Standard of Review

       The best interest of the child shall always be the court’s primary consideration in

determining the issues of conservatorship, possession, and access to the child. Id. §

153.002 (Vernon 2002). The trial court is given wide latitude in determining the best

interests of a minor child. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The

judgment of the trial court will be reversed only when it appears from the record as a whole

that the court has abused its discretion. Id.; Miles v. Peacock, 229 S.W.3d 384, 391 (Tex.

App.–Houston [1st Dist.] 2007, no pet.). An abuse of discretion occurs when a court acts

in an arbitrary or unreasonable manner or when it acts without reference to any guiding

principles. See Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex.

1985). However, a claim of abuse of discretion will not succeed provided that some

evidence of substantive and probative character exists to support the trial court’s factual
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findings. See In re J.R.P., 55 S.W.3d 147, 151 (Tex. App.–Corpus Christi 2001, pet.

denied); Holley v. Holley, 864 S.W.2d 703, 706 (Tex. App.–Houston [1st Dist.] 1993, writ

denied).

       Here, Schmidt challenges the sufficiency of the evidence supporting the trial court’s

judgment. In reviewing modification of rights under an abuse of discretion standard, legal

and factual sufficiency are not independent grounds of error, but are relevant factors in

determining whether the trial court abused its discretion. In re T.D.C., 91 S.W.3d 865, 872

(Tex. App.–Fort Worth 2002, pet. denied). In determining whether an abuse of discretion

has occurred because the evidence is legally or factually insufficient to support the trial
court’s decision, we must inquire: (1) did the trial court have sufficient information upon

which to exercise its discretion; and (2) did the trial court err in its application of discretion?

Id. (citing In re D.S., 76 S.W.3d 512, 516 (Tex. App.–Houston [14th Dist.] 2002, no pet.),

Norris v. Norris, 56 S.W.3d 333, 338 (Tex. App.–El Paso 2001, no pet.), Lindsey v.

Lindsey, 965 S.W.2d 589, 592 (Tex. App.–El Paso 1998, no pet.)). With regard to the first

question, the traditional sufficiency review comes into play. Id. We then proceed to

determine whether the trial court made a reasonable decision based on the elicited

evidence. Id.

       An appellate court will sustain a challenge to the legal sufficiency of evidence only

if: (1) there is a complete absence of evidence of a vital fact; (2) the court is barred by

rules of law or of evidence from giving weight to the only evidence offered to prove a vital

fact; (3) the evidence offered to prove a vital fact is no more than a mere scintilla; or (4) the

evidence establishes conclusively the opposite of a vital fact. City of Keller v. Wilson, 168

S.W.3d 802, 810 (Tex. 2005). More than a scintilla of evidence exists, and the evidence

is legally sufficient, if the evidence furnishes some reasonable basis for differing

conclusions by reasonable minds about a vital fact’s existence. Lee Lewis Constr. Co. v.

Harrison, 70 S.W.3d 778, 782-83 (Tex. 2001). In conducting our review, we credit


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evidence supporting the judgment if reasonable jurors could, and disregard contrary

evidence unless reasonable jurors could not.                    Id. at 827; Villagomez v. Rockwood

Specialties, Inc., 210 S.W.3d 720, 748 (Tex. App.–Corpus Christi 2006, pet. denied).

2.      Analysis

        Schmidt suggests that the only “objective” evidence in the record supporting the trial

court’s judgment was a Texas Department of Family and Protective Services investigation

and its report of findings.1 We disagree. First, testimony given by various witnesses lends

support to the jury’s findings. During her own testimony, Schmidt admitted that on the

evening she met Kimberly, she learned that he had been convicted of three different

counts of indecent exposure to a minor. Schmidt also testified that, after a court order was

put in place banning Kimberly from spending unsupervised time with V.N.S., she chose to

allow Kimberly to remain in her home despite the fact that it meant sending her daughter

to live with the child’s grandmother.

        In addition to Schmidt’s testimony, Dr. Robert Breen, Lair’s counselor,

acknowledged that he had reviewed a court document indicating a very high likelihood that

Kimberly will commit another sex offense. Noting Kimberly’s three convictions for child sex

offenses, Dr. Breen expressed that he has concerns regarding Schmidt’s role as a mother:

        Well, my concerns would be I would imagine that she is torn then between
        her allegiance to her child or children and then her allegiance to the man that
        she’s married. And trying to balance that, I would think that becomes an
        issue of what’s going to kind of be best for her. There may be a certain
        narcissism or selfishness on her part that I need this man, I need child
        support, whatever it is, to keep afloat.

Finally, in response to a question regarding V.N.S.’s best interests, Dr. Breen pointed out

that in his “strong professional opinion . . . [V.N.S.] would be much, much better served


           1
             Schm idt asserts that the Texas Departm ent of Fam ily and Protective Services (“TDFPS”) report
concludes that “Base [sic] on the evidence and after staffing the case with supervisor Em m a Davis the case
will be ruled out for allegations of sexual abuse and neglectful supervision of [V.N.S.] and [C.S., V.N.S.’s ten-
year-old half-brother].” However, the reporter’s record does not include this report, and so we do not consider
it in our review. Nevertheless, as discussed herein, we find sufficient additional evidence supporting the trial
court’s judgm ent.


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living with her biological father and stepmother.”

        Another witness, Teri Bennette, the sex offender registrar for the Montgomery

County Sheriff’s Department, explained to the jury that although Kimberly is not subject to

restrictions,2 he is registered as a high-risk level sex offender. Bennette further testified

that, according to Article 62 of the Sex Offender Registration Program, when a person is

designated as being “high-risk,” that person is considered a “serious danger to the

community” and one that “will continue to engage in criminal sexual conduct.” See TEX .

CODE CRIM . PROC . ANN . art. 62.007(3) (Vernon 2006).

        At the conclusion of the trial, the trial court explained why it believed its decisions

regarding Schmidt’s visitation rights were supported by the jury’s verdict:

        [t]his jury spoke and I think this jury spoke correctly . . . I am somewhat
        concerned about the lack of concern of the child’s access to folks who have
        had some problems in the past. And I totally agree with the amicus and
        accept his recommendation that there needs to be supervised visitation.

The “folks who have had some problems in the past” referred to by the trial court include:

(1) Kimberly, the child’s stepfather, who was convicted three times for sex-related offenses;

(2) Harold Thomas, the child’s maternal grandfather, who once was given deferred

adjudication for a sex-related crime; (3) Chris Thomas, the child’s maternal uncle, who was

arrested for enticement of a child; and (4) Lair, the child’s biological father, who has a

criminal past, including an “exposure” charge that was subsequently dropped in exchange

for his payment of $300 to the Society for Prevention of Cruelty for Animals, and charges

of menacing with a deadly weapon and family violence.

        After reviewing the evidence in the light most favorable to the judgment, we find that

Schmidt’s tendency to gravitate toward “folks who have had some problems in the past”

offers far more than a scintilla of evidence supporting the jury’s finding and the court’s

ruling as to V.N.S.’s best interests. See City of Keller, 168 S.W.3d at 810. Since
        2
         Bennette testified that Kim berly was not subject to stipulations or restrictions other than registering
as a sex offender. He is neither restricted from being around children, nor is he prohibited from being near
schools.


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substantive and probative evidence were present to support the trial court’s final order, we

find that the court did not act unreasonably or arbitrarily. See In re J.R.P., 55 S.W.3d at

151; Downer, 701 S.W.2d at 241-42. Thus, Schmidt’s claims that the trial court erred by

abusing its discretion by placing restrictions on her visitation rights fail. See Gillespie, 644

S.W.2d at 451 (holding that the trial court did not abuse its discretion in awarding custody

of the minor child to her father since there was sufficient competent evidence to support

the trial court's determination that the best interest of the child would be served).

Accordingly, Schmidt’s first, second, and third issues are overruled.

                              B. Ineffective Assistance of Counsel

        In her fourth issue, Schmidt alleges that she was denied her constitutional right to

have effective counsel for her defense in a matter where substantive family relationships

were terminated, modified, or altered. Schmidt asserts that her counsel was ineffective

and points to the trial court’s statement at trial that “the court finds that [the attorney’s fees

charged by Schmidt’s counsel] were not reasonable given the quality of representation.”

Additionally, Schmidt claims that her attorney made several errors including failing to

conduct discovery, failing to make timely and proper objections, and failing to request

findings of fact and conclusions of law as to Schmidt’s visitation limitations.3

        Generally, the doctrine of ineffective counsel is limited to criminal cases. Cherqui

v. Westheimer St. Festival Corp., 116 S.W.3d 337, 343-44 (Tex. App.–Houston [14th Dist.]

2003, no pet.); Stokes v. Puckett, 972 S.W.2d 921, 927 (Tex. App.–Beaumont 1998, pet.

denied). However, an exception to this general rule is found when an indigent person is

assigned counsel in a parental-rights termination case. See In re M.S., 115 S.W.3d 534,

544 (Tex. 2003); see also TEX . FAM . CODE ANN . § 107.013(a)(1) (Vernon Supp. 2007)

(providing that the court shall appoint an attorney ad litem to represent the interests of a

indigent parent respondent in a parental-rights termination case). In regard to appointment
        3
          Schm idt’s appellate counsel also claim s that Schm idt’s trial counsel is “presently incarcerated in
Bryan, Texas awaiting trial for alleged m oney laundering.”


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of counsel for termination cases, the Texas Supreme Court has held that the right to

appointed counsel includes the right to effective counsel. See In re M.S., 115 S.W.3d at

544; In re K.L., 91 S.W.3d 1, 11 (Tex. App.–Fort Worth 2002, no pet.) (noting that the

usual remedy for counsel’s deficiencies in a civil case is through a malpractice suit seeking

monetary damages, but that a malpractice suit does not provide an apt remedy in a

termination case, where the effect of the deficiencies may result in the loss of the parental-

child relationship). This case, however, does not fall within this exception. First, Schmidt’s

attorney was not appointed; rather, she was retained by Schmidt to represent her in the

proceedings below. Second, Schmidt’s parental rights were modified, but not completely

terminated.

         Schmidt requests that we extend the parental-rights termination exception to include

cases which deal with “[significant] visitation and custodial rights.” We decline to do so.

We believe that the exception is properly limited to cases where indigent parents are

appointed counsel and where parental rights are being wholly terminated. Cf. In re K.L.,

91 S.W.3d at 11. Therefore, we apply the general rule that Schmidt has no constitutionally

protected right to effective assistance of counsel in this case. See McCoy v. Tex.

Instruments, Inc., 183 S.W.3d 548, 553 (Tex. App.–Dallas 2006, no pet.) (noting that the

doctrine of ineffective assistance of counsel does not extend to civil cases); Cherqui, 116

S.W.3d at 343. Accordingly, we overrule Schmidt’s fourth issue.

                                       III. CONCLUSION

         Having overruled Schmidt’s four issues on appeal, we affirm the judgment of the trial

court.
                                                   _________________________
                                                   DORI CONTRERAS GARZA,
                                                   Justice

Memorandum Opinion delivered and
filed this the 3rd day of July, 2008.




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