Opinion filed June 20, 2019




                                       In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-17-00187-CV
                                  __________

       IN THE INTEREST OF J.H.C. AND I.K.C., CHILDREN


                     On Appeal from the 326th District Court
                             Taylor County, Texas
                         Trial Court Cause No. 49534-C


                      MEMORANDUM OPINION
       Father appeals the trial court’s final decree of divorce dissolving his marriage
to Mother. In four issues, Father asserts that (1) there is insufficient evidence to
support the trial court’s appointment of Mother as the sole managing conservator of
the parties’ two children or the trial court’s order that Father have only limited
contact with the children and (2) the trial court erred by ordering Father to surrender
possession of his firearms for a period of ninety days and to undergo an evaluation
and participate in counseling. We affirm.
                                   Background Facts
      Father and Mother met through a youth group at a church in Coleman. Father
was thirty-seven years old and the youth pastor at the church. Mother was sixteen
or seventeen years old and a member of the youth group. According to Mother, she
had been “off doing all sorts of crazy bad things” and was involved in an
inappropriate relationship with a teacher at her school. When Mother realized how
“bad of a situation it was,” she turned to Father for advice on what she should do to
get out of the “trouble [she] was in.”
      Father did not advise Mother to report the relationship with her teacher to the
authorities. Rather, he told Mother that she was in the situation because of her
choices and that God would not approve of the choices she had made. Father also
told Mother that she needed to “figure out” what she wanted. Father then initiated a
sexual relationship with Mother. After Father said that “it was . . . either [the teacher]
or him,” Mother ended her relationship with the teacher.
      According to Father, he and Mother were initially just friends. However, the
pastor of the church, as well as a deacon and his wife, commented on how well
Father and Mother “got along” and encouraged them to date. Father and Mother
“considered it and then one thing led to another.” Father denied that he had had a
sexual relationship with Mother before they were married.
      Mother testified that, “towards the end of [her] 17-year mark,” church leaders
discovered her relationship with Father. The church leaders told Father that he could
either leave the church quietly or be fired. Father told Mother that he was forced to
leave one of his previous churches because of his relationship with a teenager in his
youth group. Father was distressed over the situation at the church and told Mother
that, if he was fired from the church and she left him, he would lose everything he




                                            2
had and would have no reason to live. Father pressured Mother to commit to him
and made it “sound like he was going to get his gun.” Because Mother thought
Father was going to kill himself, she told him that she was “just going to marry [him]
and that is going to be the end of that.”
      Father, however, denied that he had had an inappropriate relationship with a
teenager at his prior church, was fired from that church, or was forced to leave the
church in Coleman because of his relationship with Mother. Rather, he left the
church in Coleman because he was “burned out” on ministry. Father denied
threatening to commit suicide if Mother would not marry him.
      Father and Mother married three days after Mother’s eighteenth birthday.
Father then moved from Coleman to Abilene and obtained his license to sell real
estate. Mother remained in Coleman until she graduated from high school and then
joined Father in Abilene. Father and Mother began attending a church outside
Abilene. Father was asked to become the youth pastor at the church and, several
years later, to be the pastor of the church.
      J.H.C., the parties’ first child, was born after Father and Mother had been
married for five years. Approximately seventeen months later, I.K.C. was born.
When I.K.C. was five months old, Father and Mother became the guardians of
Father’s great-nephew, who was eight months old. For three years, Mother was a
stay-at-home mother to all three children.
      Father’s great-nephew had a number of medical problems. Mother became
interested in the “medical aspect” of his care, and the parties decided that Mother
would attend nursing school. While Mother attended school, Father was the primary
caregiver for the children. After Mother graduated from nursing school, she began
working full time as an emergency room nurse.




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      The parties’ relationship soon began to deteriorate. According to Mother,
Father did not like her friends and began going through the text messages on her
phone. He also began attacking her and her friends in conversations with church
members and in his sermons. Greg McEachren, a member of the church, confirmed
that Father began to speak negatively about Mother to church parishioners and to
incorporate complaints about Mother into his sermons. Father, however, denied that
he “abused the pulpit” to attack Mother.
      Although the record is not clear on the timing, at some point, Father
and Mother had a discussion about temporarily separating. Father opposed the
separation and stated that he thought that it was best for Mother and the children if
he just “[blew his] head off.” Father then “methodically” kissed Mother, “like good-
bye forever,” and left the house. Mother was afraid that Father had a gun, was very
worried about him, and attempted to find him. Mother later decided that Father got
“joy” out of upsetting or “drawing emotion” out of her. Father described the incident
as a “tit for tat” because, the previous night, Mother had said that it would be better
if she was dead and then she had gone for a long drive. Mother, however, denied
that she threatened to kill herself; rather, she told Father that she needed some time
away and that she was going for a drive.
      Mother asked Father to participate in marriage counseling, and they attended
two counseling sessions with Margaret Shugart. Father then suggested to Mother
that they get “true Christian counseling” from McEachren and his wife. Mother
went to a third counseling session with Shugart to tell her of the change in plans. At
the end of the session, Shugart gave Mother literature describing the attributes of
nonviolent, healthy relationships and of violent, unhealthy relationships. Mother
became “scared” after reviewing the information because, in her opinion, Father




                                           4
matched “every one of the attributes of the unhealthy, violent relationship” but
matched “very few of the healthy side.”
      McEachren testified that Father had indicated that he was the victim and that
none of the problems in the marriage were his fault. The McEachrens, therefore,
had a lot of animosity toward Mother at the start of the counseling sessions.
However, after listening to Mother, the McEachrens realized that many of the things
that Father had said were not true. Further, during the counseling sessions, Father
“owned up to . . . the verbal abuse that he would do, the manipulation, the lying,
[and] the victimization.”
      McEachren testified that he and Father had several more meetings at which
they discussed that Father was not doing what he needed to do to save the marriage.
In McEachren’s opinion, it got to the point that Father was just lying to him. Father,
however, testified that he had only one conversation with McEachren after the first
counseling session and that McEachren became very angry during that conversation.
Because Father was afraid of the “violence” in McEachren’s voice, he hung up and
never spoke to McEachren again.
      Father and Mother subsequently made plans to spend an afternoon together to
work on their relationship. According to Mother, McEachren called Father that
morning and “got onto him about the lies.” Father then called Mother. Mother and
the McEachrens happened to be at the same coffee shop when Father called, and
Mother took the phone call outside. Father was infuriated and “just really mad” at
McEachren. Because Father was so upset, Mother told him that she did not think
that they should meet that afternoon.
      A couple of minutes later, the McEachrens and Mother were together in the
coffee shop when Father called Mother again. In contrast to his demeanor during




                                          5
the first phone call, Father was calm and “methodical[ ].” Father again asked Mother
to meet him. When Mother hesitated, Father said: “It’s not like I am going to take
you out in the woods and shoot you.” McEachren, who overheard the statement,
testified that this was the first time he saw any indication that Father was violent.
      Although Mother was frightened by the conversation, she agreed to meet
Father for lunch. Mother gave Father an “ultimatum” and told him that he needed
to get psychological help due to his erratic behaviors that were “freaking [her] out.”
Father responded that Mother needed to get psychological help and to get back on
her “meds,” meaning the antidepressant that Mother was taking when she was at
home with three young children. Mother testified that Father liked her to take the
medication because she became a “zombie” and did not give him any “push back.”
That evening, Mother told Father that they needed a weekend apart. Mother
explained that the children would stay with her mother and that she would stay with
a friend.
      Mother had seen Father angry before when she made a decision that he did
not like. Mother also knew that Father owned a number of pistols, rifles, and
shotguns and had placed loaded guns throughout the house after receiving a threat
from his nephew. When Father heard Mother’s plan for the weekend, he became
very angry and shoved his hand under a pillow. Mother was afraid that Father was
getting a gun and was going to shoot her. Although Father was only retrieving his
phone, Mother decided that she should not be in her home if she did not feel safe.
Mother and the children left the house for the weekend.
      Mother instructed her mother to meet Father at church with the children on
Sunday morning. However, after learning that some of the leadership of the church
might confront Father about his behavior, Mother became concerned that Father




                                           6
would “lose control” in front of the children and instructed her mother not to take
the children to church. According to Mother, this “infuriated” Father, and she began
receiving text messages from members of the church about “stealing [Father’s]
kids.” Mother left work, called the sheriff’s office, locked the children inside a house
in Coleman, and barricaded the back door. The next day, Mother contacted a lawyer
to “start the process” because the situation was so unhealthy.
      A couple of weeks later, Mother moved things out of the parties’ house and
then went to pick up I.K.C. from daycare. After signing out I.K.C., Mother
approached the daycare director about why I.K.C.’s maternal grandmother had not
been allowed to pick up I.K.C. The director told Mother that, earlier that day, Father
had removed I.K.C.’s grandmother from the list of people who could pick up I.K.C.
and had attempted to remove Mother from the list as well. After Mother finished
her conversation with the director, she turned around to see that I.K.C. was gone.
Mother panicked, ran outside, and found I.K.C. “standing” in Father’s pickup with
the doors locked. Father was standing nearby, recording Mother. Father told Mother
that he took I.K.C. in order to obtain a guaranty from Mother that he would see the
children again. He then said: “[N]ow, who looks like the crazy one?”
      After Mother filed for divorce, the parties agreed to temporary orders naming
them joint managing conservators of the two children and setting a possession
schedule that gave each of them equal periods of time with the children. Mother
testified that she agreed to the schedule because she wanted to be as fair as possible,
she would not have to hire a nanny to watch the children while she was at work, and
she did not think the children would be in danger as long as Father thought he was
in control. Mother explained that, at the time she agreed to the temporary orders,




                                           7
she did not understand how “detrimental” it would be to the children to allow Father
to have so much time with them.
      According to Mother, Father had a “meeting spot” inside the school where he
waited every morning for J.H.C., who was six years old. Father also often ate lunch
at school with J.H.C. and made sure to see her after school when he picked up his
great-nephew. If J.H.C. was leaving with Mother, Father would demand that J.H.C.
give him a hug before leaving. According to Mother, J.H.C. now panics and is
distraught if she is required to leave school before seeing Father.
      Father also began calling the children every night at 8:00 p.m., just before
their bedtime. During these conversations, Father repeatedly told the children that
he missed them, that he could not stand it when they were gone, and that he had
nothing to do without them there. Mother believed that Father made the children
feel guilty about being with her. The telephone conversations would put the children
into a “tail spin” of sobbing and crying right before their bedtime. In Mother’s
opinion, Father’s conduct was “wrecking” the children, and J.H.C.’s need to please
Father had become “very concerning.”
      Father testified that he acted appropriately with the children. He denied that
he required J.H.C. to meet him every morning before school. Rather, J.H.C. always
waited at the same place and came to meet him when he arrived with his great-
nephew. Further, he ate lunch with J.H.C. at school even before the parties separated
and believed that it was a “blessing” for J.H.C. to have lunch with him.
       In October 2016, the children started attending counseling sessions with
Rebecca McMurray, a marriage and family therapist. Father attended one of the
children’s counseling sessions and asked how he could improve with the children.
McMurray told Father that, based on what she observed during the session and the




                                          8
fact that the children loved him, he was doing a good job. In McMurray’s opinion,
Father was “not a terrible, no-good, very-bad parent,” but he had “some boundary
problems” with the children, particularly with J.H.C. McMurray explained that
J.H.C. displayed signs of “enmeshment” with Father, meaning the “boundaries have
been crossed somewhat,” and that J.H.C. was “very concerned” about Father’s
welfare and needs.
      McMurray expressed concern about specific conduct by Father that the
children had told her about. First, Father told the children that, “Jesus is mad at
Mommy because Mommy won’t come back to Daddy.” He also asked the children
to pray that Mother would return to the marriage. In McMurray’s opinion, Father
should not discuss with the children whether Mother is sinful or not sinful. Second,
Father instructed J.H.C. to keep secrets from Mother. Specifically, Father told
J.H.C. not to tell anyone that she was sleeping in the same bed as Father. In
McMurray’s opinion, secrets are never good in families and are particularly
problematic with young children. Third, Father instructed I.K.C. and his great-
nephew to call J.H.C. “Mom,” and McMurray was concerned that J.H.C. was
assuming that role at Father’s house to some degree. Finally, Father told J.H.C. that
she was special and that God had a special plan for her, but Father did not make
similar statements to I.K.C. McMurray was concerned that J.H.C. could take
Father’s statement to mean that she is better than her siblings.
      According to McMurray, children who had “demonstrated loose boundaries”
could have difficulty establishing boundaries in their future relationships.
McMurray testified that whether Father’s behavior with J.H.C. was “grooming”
behavior depends on what is meant by that term. McMurray stated that she was not
claiming that Father was “grooming” the children, but she believed that




                                          9
Father’s behavior was emotionally confusing to J.H.C. If Father was engaged in
“grooming” behavior, J.H.C. could tend to form relationships with men who have
the same approach to relationships as Father does.         These types of men are
sometimes “perpetrators” and have a sense of which individuals to target because
they can be “easily swayed.”
       Father denied that he ever discussed the divorce with the children, told the
children that Jesus was angry with Mother, required the other children to call J.H.C.
“Mom,” or spoke negatively about Mother to the children. Father further denied that
he told J.H.C. that she was more special than the other children, that J.H.C. slept in
his bed with him, or that he encouraged the children to keep secrets.
       Allison Sims, the principal at J.H.C.’s school, testified that Father comes to
the school almost daily for student drop-off and seems to be a good father. Father
also has lunch with J.H.C. at school, but does not do so “excessively.” In Sims’s
opinion, Father has not crossed any boundaries as far as keeping J.H.C. independent.
Suzanne Bailey, the director of the foster care agency working with Father’s great-
nephew, testified that Father was a good father and that she would trust him with her
children. Sherry Hall, the church secretary, and Kayla McCartor, a member of the
church, both testified that Father is a good father and that all of his children love
him.
       The trial court named Mother as sole managing conservator and Father as
possessory conservator of J.H.C. and I.K.C.; ordered that Father would have
supervised possession of the children on two Saturdays a month for four hours and
could have no other contact with the children except for one fifteen-minute phone
call on Tuesday evenings following a weekend on which he did not have possession
of the children and lunch with the children on Thursdays during the school year; and




                                         10
ordered that Father participate in an evaluation with Dr. Jason Dunham and attend
counseling with Dr. Stephen Allison in order to address Father’s activities with
Mother while he was her youth pastor, as well as his behavior with the children and
the things that he discusses with them. In a letter dated May 18, 2017, the trial court
also ordered that Father immediately deposit his firearms with the Abilene Police
Department for a period of ninety days.
      At Father’s request, the trial court made findings of fact and conclusions of
law. As to conservatorship, the trial court found that it was not in the best interest
of the children for Father and Mother to be appointed joint managing conservators;
that it was in the best interest of the children for Mother to be named sole managing
conservator and Father to be named possessory conservator; that Father and Mother
were unable to communicate with one another in a manner that allowed them to
reach shared decisions for the children; that Father initiated a relationship with
Mother when she was a minor; that Father used increasingly manipulative and
volatile techniques, including threats of suicide, in order to maintain his position of
authority over Mother; that, although there was no evidence Father had sexually
assaulted the children, he had engaged in behavior that appeared “grooming” in
nature; and that Father’s periods of possession of the children varied from the
standard possession order to protect the children and were the least restrictive
necessary in order to accomplish that goal.
                                       Analysis
      The best interest of the child is always the primary focus of conservatorship
issues, TEX. FAM. CODE ANN. § 153.002 (West 2014), and the trial court is given
wide latitude in determining the best interest of a child. Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982).          We review a trial court’s decision as to




                                          11
conservatorship or possession of a child for a clear abuse of discretion. In re A.J.E.,
372 S.W.3d 696, 698 (Tex. App.—Eastland 2012, no pet.). “A trial court abuses its
discretion when it acts arbitrarily or unreasonably, or when it clearly fails to correctly
analyze or apply the law.” Id. (quoting In re A.L.E., 279 S.W.3d 424, 427 (Tex.
App.—Houston [14th Dist.] 2009, no pet.)).
         In family law cases, legal and factual sufficiency challenges are not
independent grounds of error but, rather, are factors used in determining whether the
trial court abused its discretion. Id. In conducting our analysis, we consider whether
the trial court had sufficient information upon which to exercise its discretion and,
if so, whether it erred in the application of its discretion. Id. at 699. The sufficiency
review is part of the first inquiry. Id. After assessing the evidence, we consider
whether, based on that evidence, the trial court made a reasonable decision. Id.
         In considering whether the trial court abused its discretion, we keep in mind
that the trial court “is in a better position to determine what will be in the best interest
of the child since it faced the parties and their witnesses, observed their demeanor,
and had the opportunity to evaluate the claims made by each parent.” In re J.R.D.,
169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied). Therefore, a trial court
does not abuse its discretion when it bases its decision on conflicting evidence, In re
C.F., 565 S.W.3d 832, 845–46 (Tex. App.—Houston [14th Dist.] 2018, pet. denied),
or when evidence of substantive and probative character supports the decision.
A.J.E., 372 S.W.3d at 699.
         In his first issue, Father argues that, in light of the statutory presumption in
favor of joint managing conservatorship, there is insufficient evidence to support the
trial court’s appointment of Mother as the sole managing conservator of J.H.C. and
I.K.C.




                                            12
      Under Section 151.131 of the Family Code, both parents must be appointed
joint managing conservators unless the trial court finds that the appointment would
significantly impair the child’s physical health or emotional development. FAM.
§ 153.131(a). It is a rebuttable presumption that the appointment of the parents of a
child as joint managing conservators is in the child’s best interest. Id. § 153.131(b).
The parent seeking to be named sole managing conservator has the burden to rebut
this presumption. Turrubiartes v. Olvera, 539 S.W.3d 524, 528 (Tex. App.—
Houston [1st Dist.] 2018, pet. denied); see also In re A.A.E., No. 05-18-00210-CV,
2019 WL 1552450, at *2 (Tex. App.—Dallas Apr. 10, 2019, no pet.) (mem. op.). In
deciding whether the presumption has been rebutted, the trial court must consider:
             1. whether the physical, psychological, or emotional needs and
          development of the child will benefit from the appointment of joint
          managing conservators;
             2. the ability of the parents to give first priority to the welfare of
          the child and reach shared decisions in the child’s best interest;
              3. whether each parent can encourage and accept a positive
          relationship between the child and the other parent;
              4. whether both parents participated in child rearing before the
          filing of the suit;
             5. the geographical proximity of the parents’ residences;
              6. if the child is 12 years of age or older, the child’s preference,
          if any, regarding the person to have the exclusive right to designate
          the primary residence of the child; and
             7. any other relevant factor.
FAM. § 153.134(a); Turrubiartes, 539 S.W.3d at 528–29; see also Holley v. Adams,
544 S.W.2d 367, 372 (Tex. 1976) (setting out factors to be considered when
determining best interest of the child).



                                           13
      The trial court determined that it was not in the best interest of J.H.C. and
I.K.C. for both parents to be appointed joint managing conservators and that it was
in their best interest for Mother to be appointed sole managing conservator of the
children. In reaching that conclusion, the trial court found that Father and Mother
were unable to communicate with one another in a manner that allowed them to
reach shared decisions in the children’s best interest. The trial court also made
findings that Father had initiated a relationship with Mother when he was in a
position of authority over her, used manipulative techniques to control Mother, and
had started to engage in manipulative behavior with the children that appeared
“‘grooming’ in nature.”
      Viewed in the light most favorable to the trial court’s findings, the evidence
established that, while a youth pastor at a church, Father had an inappropriate
relationship with a teenage girl who belonged to the youth group.               Father
subsequently became the youth pastor at the church in Coleman that Mother
attended. Father’s relationship with Mother began when she was a minor seeking
counseling from him, as her pastor, on how to deal with her inappropriate
relationship with her teacher.     Rather than contacting the authorities, Father
essentially told Mother that the inappropriate relationship was her fault and then
initiated his own inappropriate sexual relationship with her. Father eventually used
threats of suicide to induce Mother to marry him.
      Once the parties’ marriage began to deteriorate, Father continued to
manipulate Mother’s emotions. He again threatened suicide and staged a kidnapping
of I.K.C. from the daycare. He also made statements and engaged in conduct that
caused Mother to be afraid that he would kill her. Father used his position as a pastor
to attack Mother and her friends. He also told the children that Jesus was mad at




                                          14
Mother for leaving the marriage and instructed them to pray for her to return to
Father. He manipulated the children by repeatedly making statements about how
much he missed them and how lonely he was without them, resulting in the children
sobbing and crying immediately before bedtime.
      Father’s conduct led J.H.C. to become overly concerned about his welfare and
with pleasing him. Further, Father slept in the same bed as J.H.C. and told her not
to tell anyone about it. He also instructed the other children to call J.H.C. “Mom,”
and McMurray was concerned that J.H.C. was assuming that role at Father’s house.
According to McMurray, Father’s conduct was emotionally confusing to J.H.C., and
Father’s lack of boundaries with J.H.C. could cause her to have unhealthy
relationships in the future, including relationships that were sexually abusive.
      We recognize there was also evidence that Father loved the children, that they
loved him, and that Father was a good father. Further, Father denied that he engaged
in the behaviors about which McMurray expressed concern. However, it was the
role of the trial court to resolve the conflicts in the evidence, and based on its
findings, the trial court did not find Father to be credible. See In re Marriage of
Harrison, 557 S.W.3d 99, 133 (Tex. App.—Houston [14th Dist.] 2018, pet. denied)
(noting that, in determining father should be named sole managing conservator of
the children, trial court was sole judge of the credibility of the witnesses and
determined mother was not credible); A.L.E., 279 S.W.3d at 427 (noting appellate
court must defer to trial court’s resolution of conflicting evidence and to credibility
determinations that may have affected its determination).
      On this record, we conclude that there was substantive and probative evidence
to rebut the presumption that appointing Father as a joint managing conservator was
in the best interest of the children. Further, the trial court did not abuse its discretion




                                            15
by determining that the appointment of Mother as sole managing conservator and
Father as possessory conservator was in the children’s best interest. We overrule
Father’s first issue.
       In his second issue, Father contends that the evidence is insufficient to support
the trial court’s deviation from the standard possession order or its determination
that the possession provided to Father was the least restrictive option available to
protect the children.
       The Family Code provides guidelines for determining the periods of
possession for a possessory conservator who resides less than 100 miles from the
child’s primary residence. FAM. § 153.312. There is a rebuttable presumption that
the standard possession order provides reasonable minimum possession of a child
for a parent named as a possessory conservator and that the order is in the best
interest of the child. Id. § 153.252; In re A.K.B., No. 11-16-00319-CV, 2017 WL
2698399, at *2 (Tex. App.—Eastland June 15, 2017, no pet.) (mem. op.). However,
if there is sufficient evidence to rebut this presumption, the trial court may deviate
from the times of possession in the standard possession order. A.K.B., 2017 WL
2698399, at *2. When ordering terms of possession that deviate from the standard
possession order, the 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. FAM. § 153.256.
       A trial court does not abuse its discretion by restricting a parent’s possession
and access when the record contains evidence to support a finding that such
restrictions are in the child’s best interest. Marriage of Harrison, 557 S.W.3d at
131. An order restricting a parent’s right to possession of or access to a child may




                                           16
not impose restrictions beyond those required to protect the child’s best interest.
FAM. § 153.193; Marriage of Harrison, 557 S.W.3d at 131.
      Although the trial court appointed Father as possessory conservator of the
children, it did not give him possession of the children pursuant to the standard
possession order. Rather, the trial court ordered that Father would have supervised
possession of the children for four hours on two Saturdays a month. The only other
contact Father is allowed with the children is a fifteen-minute phone call on the
Tuesday following a weekend during which he does not have possession of the
children and lunch with the children on Thursdays during the school year. The trial
concluded that it was necessary to vary Father’s periods of possession from those in
the standard possession order in order to protect the children and that the terms of
Father’s possession were the least restrictive terms that would accomplish that goal.
      As set out above, there was substantive and probative evidence that (1) Father
initiated a relationship with Mother while she was a minor and he was her youth
pastor; (2) Father had another inappropriate relationship with a minor over which he
had a position of authority; (3) Father attempted to keep Mother in the marriage by
threatening suicide, staging the kidnapping of I.K.C., and misleading church
parishioners about Mother’s behavior; (4) Father’s statements and conduct made
Mother fear for her safety; (5) Father and J.H.C. slept in the same bed and Father
asked J.H.C. to keep it a secret; (6) Father asked the other children to call J.H.C.
“Mom”; (7) Father engaged in manipulative conduct with J.H.C. that caused her to
be very concerned about his welfare and made her want to take care of him;
(8) Father had discussions with the children that could cause them to think Mother
was bad or “sinful”; (9) Father had boundary issues with the children, particularly




                                         17
J.H.C.; and (10) children with “loose boundaries” could have difficulty sustaining
healthy relationships and could be a target for “perpetrators.”
      On this record, we conclude that there is substantive and probative evidence
to support the trial court’s determination that Father’s periods of possession of the
children should vary from the standard possession order. Further, viewing the
evidence in the light most favorable to the trial court’s ruling, the trial court could
have reasonably concluded that maintaining supervised visits and limiting Father’s
periods of possession of and access to the children were the minimal restrictions
necessary to protect the children’s best interest. We overrule Father’s second issue.
      In his third issue, Father contends that the trial court’s order requiring him to
surrender all firearms to law enforcement for a period of ninety days is not supported
by the evidence and is unconstitutional.
      Courts are limited to deciding cases in which an actual controversy exists.
Fed. Deposit Ins. Corp. v. Nueces Cty., 886 S.W.2d 766, 767 (Tex. 1994). An actual
controversy must exist between the parties at every stage of the legal proceeding,
including the appeal.     Williams v. Lara, 52 S.W.3d 171, 184 (Tex. 2001).
“Generally, a case is determined to be moot ‘when the issues presented are no longer
“live” or the parties lack a legally cognizable interest in the outcome.’” Camarena
v. Tex. Emp’t Comm’n, 754 S.W.2d 149, 151 (Tex. 1988) (quoting Murphy v. Hunt,
455 U.S. 478, 481 (1983) (per curiam)); see also Albert Lee Giddens, APLC v.
Cuevas, No. 14-16-00772-CV, 2017 WL 4159263, at *5 (Tex. App.—Houston [14th
Dist.] Sept. 19, 2017, no pet.) (mem. op.).
      On May 18, 2017, the trial court ordered Father to immediately deposit all
firearms in his possession with the Abilene Police Department for ninety days. By
its terms, the trial court’s order pertaining to Father’s firearms expired on August 16,




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2017. Therefore, Father’s complaint that the trial court erred by ordering Father to
surrender his firearms to the Abilene Police Department is moot and presents nothing
for our review. We overrule Father’s third issue.
      In his fourth issue, Father contends that the trial court did not have the
authority to order him to participate in an evaluation and counseling into perpetuity.
Father specifically complains that the order for counseling has no statutory
foundation and is “not conditional, not linked to possession of his children, not tied
as a condition to lifting restrictions otherwise lawfully imposed.”
      A court may order a party to participate in counseling with a qualified mental
health professional if it finds at the time of the hearing that the parties have a history
of conflict in resolving an issue of conservatorship or possession of or access to the
child. FAM. § 153.010; In re Scheller, 325 S.W.3d 640, 645 (Tex. 2010) (orig.
proceeding) (per curiam). There is no requirement in Section 153.010 that the
ordered counseling be conditioned on or linked to any possession of the children or
tied as a condition to lifting restrictions imposed on the party’s possession of or
access to the party’s child. See FAM. § 153.010
      We recognize that in In re Marriage of Swim, 291 S.W.3d 500, 508 (Tex.
App.—Amarillo 2009, no pet.), the Amarillo Court of Appeals concluded that the
trial court acted outside the discretion afforded it by Section 153.010 by ordering
that the father continue counseling, among other things, without making the
counseling a condition precedent to possession of and access to the child or making
compliance a requirement to obtain or enhance the father’s right of possession and
access. The Amarillo court’s conclusion, however, was in response to the father’s
argument that the counseling and other requirements deprived him of the protections
afforded incapacitated persons under the Probate Code, as it existed at that time,




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because the order was not related in any manner to the child who was the subjection
of the litigation. Id.; see former TEX. PROB. CODE §§ 601–726, redesignated and
repealed by Act of May 19, 2011, 82 Leg., R.S., ch. 823, §§ 3.01–.02, 2011 Tex.
Gen. Laws 1901, 2094–95 (current version in the Texas Estates Code). Father has
not raised a similar argument in this appeal.
        There was substantive and probative evidence that Father and Mother had a
history of conflict about possession of and access to the children. Further, the trial
court found that Father and Mother were not able to communicate with one another
in a manner that allowed them to reach shared decisions in the children’s best
interest. Father has not argued on appeal that the trial court’s finding is not sufficient
under Section 153.010 to support the trial court’s order that Father participate in
counseling. We conclude that the trial court did not abuse its discretion by ordering
Father to participate in counseling. We overrule Father’s fourth issue.
                                         This Court’s Ruling
        We affirm the judgment of the trial court.




                                                                   JOHN M. BAILEY
                                                                   CHIEF JUSTICE
June 20, 2019
Panel consists of: Bailey, C.J.,
Stretcher, J., and Wright, S.C.J.1

Willson, J., not participating.


        1
          Jim R. Wright, Senior Chief Justice (Retired), Court of Appeals, 11th District of Texas at Eastland,
sitting by assignment.




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