Opinion
No. 13-05-493-CV
November 1, 2007.
On appeal from the County Court at Law No. 1 of Hidalgo County, Texas.
Before Justices YAÑEZ, BENAVIDES, and VELA.
MEMORANDUM OPINION
Appellant Sameena Ahmed, the natural mother of M.S.R. and S.R., appeals a trial court order that: (1) modified a 1998 conservatorship order by reclassifying Ahmed as the possessory conservator rather than managing conservator of the children; (2) terminated her parental rights of access and visitation to the children; and (3) enjoined her from alleged harassment of the appellee, her ex-husband, Dr. Shahid Rashid. We find the trial court did not abuse its discretion in ordering the modification of conservatorship. We do, however, find the evidence insufficient to support the court's termination of parental access and visitation rights. Furthermore, we find the permanent injunction overbroad and unenforceable. Therefore, we affirm the order as to modification of conservatorship and reverse the order as to termination and the permanent injunction.
I. Factual Background
Dr. Shahid Rashid and Ms. Sameena Ahmed were divorced in 1998. They are the natural parents of two minor children from the marriage, M.S.R. and S.R. Dr. Rashid and Ms. Ahmed were named joint managing conservators in the 1998 divorce decree. After the divorce, the two children remained at Dr. Rashid's home in McAllen, Texas, where he maintains an anesthesiology practice. Ms. Ahmed moved to Chicago, Illinois to attend law school, and upon her graduation in 2001, spent the next two years working in Chicago and in Washington, D.C. In April 2004, Dr. Rashid filed a motion for modification of the divorce decree, seeking to be named sole managing conservator. Ms. Rashid then moved back to the McAllen area in order to be closer to the children and to better contest the motion.
Dr. Rashid prevailed in the subsequent trial by offering evidence that Ms. Ahmed had become an unstable and disruptive influence in the children's lives. The trial court (1) designated Dr. Rashid sole managing conservator, (2) designated Ms. Ahmed possessory conservator, (3) denied Ms. Ahmed all parental visitation and access rights to the children, and (4) permanently enjoined Ms. Ahmed from "harassing" Dr. Rashid.
The dissent correctly observes that there is a notable discrepancy between the oral and written pronouncements of the trial court in this case. See dissenting opinion, part V. In oral pronouncements, the trial court stated that, "you [Ms. Ahmed] need to get [psychologically] evaluated and then I will address any other matters that need to be addressed to the Court as soon as that comes through," but the trial court did not mention the psychological evaluation in its written order nor did it set a hearing date to evaluate the results of the evaluation. This discrepancy is significant because if the denial of access and visitation rights was conditioned upon a psychological evaluation, then the trial court's order would be temporary, and this Court would lack jurisdiction. See Tex. Fam. Code Ann. § 105.001(e) (Vernon 2006) ("[T]emporary orders rendered under this section [concerning suits affecting the parent-child relationship] are not subject to interlocutory appeal."). Following the dissent's analysis, therefore, would require that we dismiss this case. Moreover, it would be unnecessary to address the merits issues in this case as the dissent does in parts I-IV of it's opinion. See dissenting opinion, parts I-IV.
We respectfully disagree with the dissent's interpretation, however, and we instead read the trial court's oral language as merely informing Ms. Ahmed that the court would consider a successful psychological evaluation to be a material and substantial change sufficient to permit her to move to modify the final order pursuant to her rights under the family code. See Tex. Fam. Code Ann. § 156.101(1)(A) (Vernon 2006). If the trial court only intended the order to be temporary, as the dissent believes, the trial court most likely would have specified a hearing date to consider the results of Ms. Ahmed's evaluation. It did not do so. Our opinion, therefore, proceeds with the understanding that the trial court issued a final, appealable judgment. Neither party disputes the finality of the order or the jurisdiction of this court.
In an oral pronouncement, the court indicated that four particular pieces of evidence prompted its modification of conservatorship and termination of parental access rights. First, the court cited a tape recording of a telephone conversation (partly in English, and partly in Urdu) between Dr. Rashid and Ms. Ahmed in which Ms. Ahmed threatened herself and the two children with "expression[s] of aggression and some loud discussions."
Second, the court cited allegedly "hostile" behavior by Ms. Ahmed directed towards the court-appointed attorney ad litem. For instance, Ms. Ahmed became very upset when the ad litem arrived to observe and supervise Ms. Ahmed's visit with M.S.R. and S.R. at a McAllen restaurant because she did not believe that the existing agreement mandated supervised visitation. Ms. Ahmed demanded that the ad litem leave and phoned the police to file a report. The court also construed Ms. Ahmed's conduct in having an attorney who was not of record phone the ad litem for questioning on a Sunday as harassment. Ms. Ahmed does not dispute either incident — she merely claims that the incidents were legitimate exercises of legal rights that do not rise to the level of "harassment."
Third, the court sympathized with concerns that Ms. Ahmed had received personal and financial assistance in McAllen from persons who were known to have "disagreements or problems" with her ex-husband, thus calling into question whether her motive for returning to McAllen was to contest the motion or merely to harass Dr. Rashid.
Finally, the court cited the disparity in stability between Dr. Rashid and Ms. Ahmed. Dr. Rashid has a house, a steady medical practice, and greater economic resources, whereas Ms. Ahmed has spent the years since the divorce moving around the country to attend school and pursue several jobs.
With respect to the permanent injunction against "harassing" behavior, the trial court received testimony by Dr. Rashid about the following incidents: (1) that Ms. Ahmed once brought the McAllen police with her to Dr. Rashid's home in order to enforce her visitation rights; (2) that she told members of Dr. Rashid's mosque that Dr. Rashid was a "very bad person;" (3) that she entered the school of M.S.R. and S.R. in order to access the children's school records; and (4) that she flew on the same airplane with Dr. Rashid on a trip to Houston.
The court issued its written order on May 2, 2005. Ms. Ahmed now appeals all rulings in the order — the modification of conservatorship, the denial of parental access and visitation rights, and the permanent injunction.
II. Analysis
We begin by noting that Ms. Ahmed made a timely and proper request for findings of fact and conclusions of law, but these were not filed by the trial court. We do not presume harm to Miss Ahmed, however, because in such situations harm is only presumed if the appellant is required "to guess the reason or reasons that the trial judge has ruled against it." Sheldon Pollack Corp. Pioneer Concrete of Tex., 765 S.W.2d 843, 845 (Tex.App.-Dallas 1989, writ denied). In the instant case, Miss Ahmed was not forced to guess the reasons she did not prevail because, as we noted above, the trial court specifically articulated its reasons during the trial. Sagemont Plaza Shopping v. Harris County Appraisal Dist., 30 S.W.3d 425, 427 (Tex.App.-Corpus Christi 2000, pet. denied) (determining that although findings of fact and conclusions of law were not filed, the appellant did not have to guess the reason for the court's ruling because "the trial court announced its ruling in open court and gave the parties the reason for its ruling"). We proceed with our analysis by reviewing this reasoning, which can be found in the reporter's record, and by evaluating it in the light most favorable to the judgment of the trial court. Schoeffler v. Denton, 813 S.W.2d 742, 745 (Tex.App.-Houston [14th Dist.] 1991, no writ).
We review the trial court's order under a highly deferential abuse of discretion standard. Schoeffler, 813 S.W.2d at 745. The test for abuse of discretion is to determine whether the trial court acted without reference to any guiding rules or principles, or whether under the circumstances of the case, the trial court's actions were arbitrary or unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
A. Modification of the Conservatorship Order
A court may modify a conservatorship order if (1) the modification would be in the best interest of the child; and (2) the circumstances of the child, a conservator, or another party affected by the order have materially and substantially changed since the date of the rendition of the order. Tex. Fam. Code Ann. § 156.101(1)(A) (Vernon 2006). The family code requires proof of a material and substantial change of circumstances because of res judicata considerations and the State's desire to prevent constant relitigation with respect to children. Child v. Leverton, 210 S.W.3d 694, 696 (Tex.App.-Eastland 2006, no pet.).
A conservator's move to a new location is not itself a material change in circumstances, but it may combine with other factors to establish a material change. Scroggins v. Scroggins, 753 S.W.2d 830, 832 (Tex.App.-Houston [1st Dist.] 1988, no pet.). Relevant factors include, but are not limited to, the distance of a move, the nature and quality of the children's contacts with the noncustodial parent, and the proximity, availability, and safety of travel arrangements. Bates v. Tesar, 81 S.W.3d 411, 430 (Tex.App.-El Paso 2002, no pet.). Stability for the child is also an important consideration. Child, 210 S.W.3d at 698. Evidence concerning stability might serve as evidence not only of a material and substantial change in circumstances but also as evidence of the next part of the inquiry — the best interest of the child. Id.
The best interest of the child is the primary consideration in determining conservatorship, possession, and access rights of a parent. Tex. Fam. Code Ann. § 153.002 (Vernon 2002); see also E. C. v. Graydon, 28 S.W.3d 825, 828 (Tex.App.-Corpus Christi 2000, no pet.). The trial court has wide discretion in determining the best interests of a child because the court is in the best position to observe such things as demeanor and personalities of the witnesses, which cannot be discerned merely by reading the record. In re H.S.N., 69 S.W.3d 829, 831 (Tex.App.-Corpus Christi 2002, no pet.).
In this case, we do not believe that the trial court abused its discretion in modifying the conservatorship order to name Dr. Rashid sole managing conservator and Ms. Ahmed possessory conservator. To begin, it was not an abuse of discretion for the court to find a "substantial and material change in circumstances" justifying a reconsideration of the order because the disparity in stability that has developed between Dr. Rashid's circumstances and Ms. Ahmed's circumstances since the rendition of the original order is sufficient to constitute a material change. Although Ms. Ahmed was once a daily presence in the lives of M.S.R. and S.R., she has spent the past five years living over a thousand miles away in Chicago and then in Washington, D.C. These are moves of a significant distance which rendered travel arrangements for the children far more difficult than a local or regional move. Most significantly, the moves have made her living situation far less stable than it was when the original conservatorship order was rendered. It cannot be considered an abuse of discretion for the trial court to have judged the situation between Ms. Ahmed, Dr. Rashid, and the two children to have changed so substantially and materially over the past five years that a reconsideration of the conservatorship order was justified.
We further believe that it was not an abuse of discretion for the court to decide, based upon the evidence it heard, that it was in the best interest of M.S.R. and S.R. for Dr. Ahmed to be granted sole conservatorship. In its oral pronouncements, the trial court explained that it came to its decision after considering the evidence that Ms. Ahmed had threatened herself and the children in a telephone call, that she had displayed hostility towards the ad litem attorney, that she had received assistance upon moving to McAllen from persons who had personal problems with her ex-husband, and due to the significant disparity in stability between the two conservators. The decision the court reached upon hearing this evidence was not arbitrary or unreasonable. Moreover, the court appears to have considered all the evidence in concert, rather than basing its decision on any one point of evidence at the exclusion of the others. Such an analysis cannot be said to have been made without reference to any guiding rules or principles and cannot be described as an abuse of discretion.
Miss Ahmed argues that the testimony of the ad litem attorney regarding this incident (and others) is inadmissible because the unsworn testimony of an attorney is not evidence. See Banda v. Garcia, 955 S.W.2d 270, 272 (Tex. 1997). This argument is waived, however, because no contemporaneous objection to the testimony was made at trial. Id.
Therefore, with respect to the motion to modify conservatorship, we affirm the judgment of the trial court.
B. Denial of Access and Visitation
A parent has the right to the companionship, care, custody, and management of his or her children. In re D.S.P. and H.R.P., 210 S.W.3d 776, 778 (Tex.App.-Corpus Christi 2006, no pet. h.). These are fundamental individual rights which our law recognizes as far more precious than any property right. Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985) (describing parental rights as "a basic civil right"); Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976) ("[t]he natural right which exists between parents and their children is one of constitutional dimensions"); see also Santosky v. Kramer, 455 U.S. 745, 758-59 (1982). A trial court may limit the rights and duties of a parent, however, upon a written finding that the limitation is in the best interest of the child. Tex. Fam. Code Ann. § 153.072 (Vernon 2002).
Complete denial of access should rarely be ordered. See In re Walters, 39 S.W.3d 280, 286-87 (Tex.App.-Texarkana 2001, no pet.). A parent appointed possessory conservator should at least have periodic visiting privileges with his or her child and should not be denied such privileges except in extreme circumstances. Green v. Green, 850 S.W.2d 809, 812 (Tex.App.-El Paso 1993, no writ); Thompson v. Thompson, 827 S.W.2d 563, 569 (Tex.App.-Corpus Christi 1992, writ denied); Allison v. Allison, 660 S.W.2d 134, 137 (Tex.App.-San Antonio 1983, no writ); see also Hale v. Hale, No. 04-05-00314-CV, 2006 Tex. App. LEXIS 747, at *8 (Tex.App.-San Antonio January 25, 2006, pet. denied) (mem. op.). Therefore, this Court's review of any denial of parental access and visitation rights — be they conditional, temporary, or permanent — must be evaluated under an exacting standard: only "extreme grounds" can warrant such a harsh remedy. Green, 850 S.W.2d at 812.
There is little case law defining the contours of the "extreme" grounds that permit a trial court to deny, rather than merely limit, the access and visitation rights of a parent. This perhaps indicates that the remedy is so strict that courts only apply it in rare circumstances. See Walters, 39 S.W.3d at 286. The few cases providing guidance feature facts in which the parent's behavior is truly "extreme." Compare Green, 850 S.W.2d at 813 (finding that sexual exhibitionism — walking around in front of the child wearing only a t-shirt and speaking vulgarly — was grounds to terminate parental rights), and Smith v. Sims, 801 S.W.2d 247, 250 (Tex.App.-Houston [14th Dist.] 1990, no writ) (finding that holding a child hostage at gunpoint after murdering the child's mother was grounds to terminate parental rights); with Panozzo v. Panozzo, 904 S.W.2d 780, 784 (Tex.App.-Corpus Christi 1995, no writ) (holding that the possibility that the parent might transport the children outside the court's jurisdiction, including outside the United States, was not grounds to terminate parental rights); Thompson, 827 S.W.2d at 567 (holding that failure to pay child support and interference with the child's educational development by taking the child out of pre-school and visiting the child during elementary school was not grounds to terminate parental rights); and Walker v. Showalter, 503 S.W.2d 624, 626 (Tex.App.-Houston [1st Dist.] 1973, no writ) (holding that thirteen-year-old child stating, in general terms, that she would rather not ever see or visit with the other parent again, was not grounds to terminate parental rights).
In the present case, there is insufficient evidence to establish that Ms. Ahmed's behavior constituted "extreme" grounds meriting a denial of access and visitation rights. The most damaging piece of evidence presented by Dr. Rashid is the audio tape in which Ms. Ahmed is heard threatening to do harm to herself and the two children, M.S.R. and S.R. This is hardly stable and appropriate behavior, but even indulging all assumptions in favor of affirming the trial court — assuming that the tape is properly authenticated and that Ms. Ahmed was not merely "joking," as she contends — this conduct cannot be considered "extreme" under our jurisprudence.
Ms. Ahmed suggests that the tape may have been altered and argues that the introduction of the tape into evidence was improper because it was not properly authenticated. We do not address this argument because the portions of the tape recordings which the trial court relied upon to render a final order are merely cumulative of evidence which was also introduced via the sworn testimony of witnesses. See Tex. R. App. P. 44.1(a); see also Nissan Motor Co. v. Armstrong, 145 S.W.3d 131, 144 (Tex. 2004) (stating that erroneous admission is harmless if it is merely cumulative).
The case law does not direct us to view a single verbal threat as "extreme grounds" meriting the denial of a parent's access and visitation rights. Sexual exhibitionism, murder, and hostage-taking have been considered extreme grounds — but a single verbal threat has not been. Green, 850 S.W.2d at 813; Sims, 801 S.W.2d at 250. There is some authority that directs courts to respond to verbal threats by denying parental rights of access and visitation, but these are cases of repeated and incessant threats, generally accompanied by an extensive history of substance abuse, mental illness, or illegal behavior. See In re C.M.B., 204 S.W.3d 886, 896-97 (Tex.App.-Dallas 2006, no pet. h.) (terminating parental rights where mother had a history of psychiatric problems and substance abuse and had, on multiple occasions, threatened to harm herself and the child). Courts have also reached similar conclusions in unpublished opinions. See e.g., In re C.S.C., No. 02-06-00254-CV, 2006 Tex. App. LEXIS 10264, at *21-22 (Tex.App.-Fort Worth November 30, 2006, no pet.) (mem. op.) (terminating mother's rights where mother, in addition to making threats towards herself and her unborn daughter, had bipolar disorder and a pattern of uncontrolled anger); Reyna v. Dep't of Family Protective Servs., No. 01-05-00985-CV, 2006 Tex. App. LEXIS 3402, at *18 (Tex.App.-Houston [1st Dist.] April 27, 2006, no pet.) (mem. op.) (terminating mother's rights where mother had repeatedly, violently abused her children — including stabbing a child in the hand, dropping the child out of a second-story window, and hitting the child on the head with a radio — and often threatened to kill them). There is simply no evidence that Ms. Ahmed made repeated threats, nor is there evidence of an extensive history of psychological disorder or substance abuse. Therefore, although Ms. Ahmed's statements on the audio tape were troubling, they were not "extreme" as courts have assessed that term in the past. Our precedents suggest that Ms. Ahmed should be limited to supervised access and visitation rather than having her access and visitation rights halted altogether.
Indeed, we believe that the trial court appreciated that Ms. Ahmed's behavior did not constitute "extreme" grounds when it noted during the course of the trial that Ms. Ahmed was not a "bad" mother and expressly found that regular visitation and access between Ms. Ahmed and the children was in the best interest of all parties:
I want these children to get to know you better. I want these children to get to be with you. I want these children to get to know that Mom is not a bad mom and that Mom, despite the fact that [she] may have had some difficulties — Mom is going to do well and is going to have a good relationship with them.
These statements reflect the trial court's profound appreciation for the importance of parental rights of companionship, care, custody, and management. But the court's ultimate pronouncement in its order denying even supervised access and visitation to Ms. Ahmed does not similarly reflect a sensitivity to such rights. The trial court should have recognized that it is improper to order a halt to parental rights on the basis of a single verbal threat, and it does not matter whether those rights are permanently terminated, terminated for only a specified period of time, or terminated pursuant to a condition. Although we affirmed the trial court's modification of conservatorship, we cannot in turn affirm the trial court's denial of access and visitation rights to Ms. Ahmed because on this issue there is a much higher standard — "extreme" grounds — and it has not been met.
We reverse the trial court's order denying visitation and access rights.
C. Permanent Injunction
The trial court's permanent injunction prohibited Ms. Ahmed from "carrying out any activities that would be interpreted as [sic] a harassing manner." We believe that such and order is too indefinite to be enforceable and that there is no evidence to support the injunction.
The right to privacy includes the right to be free from willful intrusions into one's personal life at home and at work, and individuals may receive injunctive relief in the form of a court-issued temporary ex parte order to enforce these rights. Vaughn v. Drennon, 202 S.W.3d 308, 320 (Tex.App.-Tyler 2006, no pet.). A resulting permanent injunction must be narrowly drawn and precise. Schneider Nat'l Carriers, Inc. v. Bates, 147 S.W.3d 264, 287 (Tex. 2004). Injunctions should not be more comprehensive or restrictive than justified by the pleadings, evidence, and usages of equity. Adjust Video v. Nueces County, 996 S.W.2d 245, 250 (Tex.App.-Corpus Christi 1999, no pet.). They should inform the defendant of the acts restrained, without calling upon the defendant for inferences or conclusions about which persons might differ and without leaving anything for further hearing. Cross v. Chem-Air South, Inc., 648 S.W.2d 754, 757 (Tex.App.-Beaumont 1983, no writ). An injunction decree or order which is too indefinite is void. Rubin v. Gilmore, 561 S.W.2d 231, 236 (Tex.App.-Houston [1st Dist.] 1977, no writ).
In this case, the language of the trial court is not specific enough to comport with the traditionally strict standards that must be applied when drafting permanent injunctions. Cross, 648 S.W.2d at 757. The language contained in the order — restricting Ms. Ahmed from "harassing behavior" and justifying the order by citing "the conduct of Sameena Ahmed" — is overbroad and too vague to be enforceable.
Moreover, we believe that the evidence does not support an injunction. As we have noted, because the trial court did not provide findings of fact, the judgment of the trial court implies all necessary findings of fact to support itself. Schoeffler, 813 S.W.2d at 745. We may therefore assume that the injunction was issued based upon Dr. Rashid's allegations that (1) Ms. Ahmed had McAllen Police Department officers accompany her to the Rashid residence in order to enforce her visitation rights prior to the divorce decree modification, or (2) Ms. Ahmed told people at Dr. Rashid's mosque that he was a "very bad person." We may also assume that the court considered Dr. Rashid's oral testimony that Ms. Ahmed "harassed" him by checking on the school records of M.S.R. and S.R. and by sitting on an airplane flight with him.
Presuming that these are indeed the trial court's justifications for issuing a permanent injunction, we must reverse. First, it is irrelevant whether Ms. Ahmed's appearance at Dr. Rashid's residence with police officers was intended as intimidating or harassing behavior because the action was an acceptable exercise of a legal right and improper motives cannot transform lawful actions into actionable torts. Tenet Health v. Zamora, 13 S.W.3d 464, 471 (Tex.App.-Corpus Christi 2000, pet. dism'd w.o.j.) (hospital was entitled to take certain actions under its own discretion and thus the issuance of a temporary injunction was an abuse of discretion by the trial court). Second, Ms. Ahmed's reference to Dr. Rashid as a "very bad person" does not rise to the level of harassment that would justify a permanent injunction. Indeed, it would not even give rise to a claim for defamation. ABC, Inc. v. Gill, 6 S.W.3d 19, 46 (Tex.App.-San Antonio 1999, pet. denied) (holding that referring to someone as a "bad guy" is not actionable because it "is not defamatory and does not contain a verifiable assertion of fact"), overruled on other grounds by Turner v. KTRK TV, Inc., 38 S.W.3d 103 (Tex. 2000). Third, assuming that the court took Dr. Rashid's testimony into account, it was not harassment for Ms. Ahmed to examine the school records of M.S.R. and S.R. because as a managing conservator she was within her rights to do so. Tex. Fam. Code Ann. § 153.073(a)(3) (Vernon 2006). Finally, there is no evidence presented that Ms. Ahmed "harassed" Dr. Rashid on the named airplane flight; she was merely present on the airplane. It is not clear what "harassing behavior" on the part of Ms. Ahmed the trial court seeks to enjoin.
We reverse the trial court's issuance of a permanent injunction against Ms. Ahmed.
V. Conclusion
We find that the trial court did not abuse its discretion in granting the motion to modify conservatorship, and therefore we affirm with respect to this issue. We find insufficient evidence, however, to justify the termination of parental rights, and we find the permanent injunction overbroad and unenforceable. We therefore reverse with respect to these two issues. The judgment of the trial court is AFFIRMED in part and REVERSED in part.
DISSENTING MEMORANDUM OPINION
I respectfully dissent. Based on the evidence presented during this five-day, hotly-contested conservatorship bench trial, I believe the trial court's ruling was overwhelmingly within its broad discretion. First, I disagree with the majority because I believe the trial court's ruling amounted to a temporary suspension of access to the children, not a termination; and thus, evidence of extreme grounds was unnecessary to uphold the trial court's discretionary ruling. Second, even if the trial court's ruling could possibly be construed as a termination, the trial court did not abuse its discretion because the circumstances were, in fact, extreme. Third, the majority bases its ruling, in part, on cases involving involuntary termination of parental rights, which require the evidence to be clear and convincing. The majority should have reviewed the trial court's ruling under the more deferential abuse of discretion standard.
I. Background Facts
Because this was a hard-fought, contested, lengthy bench trial in which the testimony was often heated, conflicting, and disturbing, I feel it necessary to set forth important evidence that was introduced at trial to demonstrate the reasons why I believe the trial court did not abuse its discretion.
A. Ahmed's Limited Involvement with her Children
Ahmed and Rashid divorced in Houston in 1998 when their two children, M.S.R and S.R, were ages 5 and 2. Shortly after the separation, the children began to live with Rashid. Although designated as a joint managing conservator, Ahmed voluntarily gave custody of the children to Rashid, and showed merely a passive interest in her children over the next few years. In 1998, Rashid moved to McAllen with the children and set up a medical practice. Ahmed, for the most part, lived in Chicago with her parents and attended law school. The children would visit her in the summers during summer vacation. From 1998 until 2003, Ahmed visited the children only twice in McAllen, and on both occasions, the visits were very brief.
Although the record does not reflect when the parties were married, testimony reveals that the children were born during the marriage and that the couple actually separated in 1996, and at that time began living with Rashid.
Even after Ahmed finished law school, she did not attempt to move closer to her children. Instead, she moved to the Virginia/Washington D.C. area and began working. After approximately six months, she was terminated from her employment and moved back to Chicago.
The record also reflects other incidents of Ahmed's failure to visit the children. In May, 2005, she was to have a supervised visit with the children at Mr. Gatti's Pizza Restaurant in McAllen. She did not arrive until two hours after the scheduled time, and the children had, by that time, left the restaurant.
B. 2003: Ahmed Refuses to Return Children
On May 27, 2003, Rashid sent the children to Chicago for their annual summer visitation with Ahmed. Although she had not seen her children for 10 months, Ahmed did not pick up the children at the airport because she was "busy" and was not able to change her other "engagement." Instead, she called Rashid's brother and asked him to take the children to his house. She picked up the children later that day. On June 13, 2003, Ahmed notified Rashid that she would not be returning the children to McAllen. Rashid notified Ahmed that if she failed to return the children, she would be in violation of the divorce decree after Ahmed refused to return the children. Rashid filed a motion for contempt. The Houston court ordered the children returned to Rashid, and ordered that Ahmed have limited supervised visitation. As a result of her refusal to return the children, MSR and SR missed five weeks of school.
Since the parties were divorced in Houston, the Houston trial court had continuing jurisdiction over the children at the time of the motion for contempt. The Hidalgo County District Court subsequently obtained jurisdiction over the children after the children moved to McAllen.
Ahmed testified that the reason she did not return the children to Rashid was that the children told her Rashid's mother, who lived with Rashid and helped raise the children, physically abused them. A CPS investigation determined that the allegations were unsubstantiated.
The record reflects that both children are well-adjusted, A students, and are involved in numerous extracurricular activities in McAllen.
C. 2004: Ahmed moves to the Rio Grande Valley financed by Dr. Chowdhury
In December 2004, Ahmed moved to the McAllen/Mission area in Hidalgo County. The evidence showed that her move was financed by Dr. Chowdhury, a former employer of Rashid who was under federal investigation. Rashid had cooperated with authorities and was going to testify against Chowdhury in his prosecution. The record reflects that Chowdhury's investigator contacted Ahmed in Chicago, Chowdhury financed Ahmed's move to Hidalgo County, Chowdhury paid Ahmed's hotel bill until she found an apartment, Ahmed moved into an apartment with Chowdhury's son's girlfriend, and Chowdhury's assistant drove Ahmed to the courthouse for at least one hearing regarding the children. Rashid described Chowdhury's involvement with Ahmed:
Q: [by Rashid's counsel] You made some comment about the — — that you felt that the children were not — and I am quoting. You said, "The children are not in a safe environment" and that "in connection with" — — and you said something like "in connection — between Dr. Chowdhury and my ex-wife." Are you . . . making reference to that whole situation with the federal investigation? Is that what you were talking about?
Rashid: Yes, indeed. It is a big thing going on right now.
Counsel: And do you fear for your children's safety in that regard?
Rashid: Absolutely.
* * * * *
Rashid: I have a fear, and that fear is legitimate, that the safety of my family is at stake, not through her, through her agents as well.
Rashid: I am extremely scared the — of this kind of scale of involvement, I am truly scared — and I am going to contact the government for seeking the protection because I think that my life is not safe. My car has been-my truck has been slashed, the tires, and I do not know who was behind it. I live in a gated community, and all of those people who live there, they are physicians or attorneys. And we — I was very shocked and I have the report here.
* * * * *
On cross-examination, Ahmed's counsel questioned Rashid about why he feared for his children.
Counsel: [E]arlier you testified that you were asking the Court for protection from fear because you had a fear for these children. What exactly did you mean by that?
Rashid: I have the fears that right now the people are — that she has associated with some people and those people are out there to harm me. And along with that, what she has done — she has proven that connection that she can go at any length to associate with those people to hurt these children and indirectly me — or me or the children.
* * * * *
Counsel: What you are asking the Court is for supervised visitation?
Rashid: Indeed until — but again under certain conditions before — we make sure that everything is safe and it has been addressed.
Counsel: [A]nd how are we going to do that?
Rashid: At this point in time, I do not know that — what else is ruined because of what type of connection she has with this Dr. Chowdhury because she is right now being supported by him in this town. . . .
D. Ahmed's Harassing Behavior
Upon arrival in McAllen, Ahmed twice violated the Court's order by showing up at the children's home and school unannounced. She took a police officer to Rashid's home, informing him that she had custody papers that entitled her to take the children. The officer testified that he did not allow Ahmed to take the children because Ahmed could not give him an address where she was residing, she had an out-of-state driver's license, the children seemed "comfortable" in Rashid's home, and they told the officer they did not want to go with their mother.
Both children testified in chambers that they did not want to visit with their mother. M.S.R., the older child, wanted to testify in open court, but the trial court denied his request. At the time of the hearing, the children were ages 13 and 9.
Ahmed also began attending the same mosque as Rashid and the children and embarked on what Rashid described as a "character assassination" against him to the other members of the congregation. While at the mosque, she attempted to approach M.S.R. and S.R. This "disturbed and embarrassed" M.S.R., the older child. Rashid and the children stopped going to the mosque because of Ahmed's behavior.
Dahlinda Garcia, the guardian ad litem for the children, also described her concerns about Ahmed's behavior. Garcia testified that during a recent supervised visit with the children at a McAllen restaurant, Ahmed began yelling and pointing her finger at Garcia in front of the children, and made such a scene that the restaurant manager tried to calm her down. Eventually, the police arrived and ordered them to leave the premises.
Mary Villareal, Rashid's former secretary who was later hired by Dr. Chowdhury, testified that she received a phone call from Ahmed prior to the modification hearing asking for her help finding negative information regarding Rashid.
E. Ahmed's Threat to Kill Herself and Her Children.
In addition to the foregoing evidence, the trial court also heard a recorded audiotape of a heated telephone conversation between Rashid and Ahmed, in which Ahmed threatened to kill herself and the children:
This conversation took place during the time in which Ahmed was refusing to return the children to Rashid in the summer of 2003.
Ahmed: If I kill the children can you prove it?
Rashid: No, here on one hand you're telling me that these are your children, you love them, right?
* * * * *
Rashid: [Y]ou're going ahead and you're telling me that you're going to kill them?
Ahmed: I have suffered much at your hands. There is a limit. . . .
* * * * *
Ahmed: Even God will forgive me when I kill myself. . . .
* * * * *
Ahmed: I will do you one really big last favor. . . .
Rashid: What is it?
Ahmed: And . . . in this way you will be completely free of me and there will be no connection between us.
Rashid: That's whatever you want to do ok? This between you and your God . . . and here I'm just telling one thing, for sure . . . that if you want to be with these children. . . .
Ahmed: I'll be with them.
Rashid: Ok.
Ahmed: I'll be with them alright.
Rashid: Yeah.
Ahmed: [A]nd there will be no power on earth that can . . .
Rashid: [Y]eah, I know that you . . . if you are threatening me to kill them or something? Your [sic] doing wrong, I'm just telling you . . . Honest to God, you are doing a very bad mistake to these little children, you will traumatize them. . . .
Rashid: Samima, Samima, Samima, [sic] for God sake please do not do that please I'm telling you please.
Ahmed: [Y]ou know just like I have felt . . . they will happily die with me . . . perhaps.
* * * * *
Ahmed: [T]here is only one way to break this thing[,] Shahid.
Ahmed: [A]nd I am saying that as long as the children are there . . . yours and my connection will not be released.
* * * * *
Ahmed: Yaaaaaaaaa. . . . We'll see how clear your conscience will feel l [sic] you will not be in your childrens . . . you won't cry over my dead body I know that . . . but over your children's bodies . . . it will hurt you?
Rashid: Listen[,] Samima [sic].
Ahmed: Will it hurt? Will it hurt you? I am asking . . . your teeny tiny son.
Concerning this conversation, Rashid testified:
During that conversation, which was very — it was very intense. She wanted to kill the children. That is what she expressed, and so this way she could hurt me. And she has expressed that. I love my children so much, and that is the only way that she could hurt me for the rest of my life. . . .
What she expressed clearly in that conversation she has proved that she is serious about it, and it has been proved in this Court that she can confer with anyone to hurt me or harm me and to the extent that now I do believe that there may end up to be some extreme situations like hurting me or my children.
On cross-examination, Ahmed testified that she was just "joking" when she told Rashid she would kill her children and that she "tried to shake him into reality here."
II. The Trial Court's Order
In making its oral rendition, the court stated:
This is not an easy decision because it involves children, and the court always has to look at is what is in the best interest of the children. . . . There are some factors that I have to look at throughout the proceeding and throughout the testimony that has been elicited by the witnesses, and those factors that I will point out at this time and also factors that concern the Court.
First of all, with respect to the hostile environment or hostile behavior, there have been at least three occasions that I am aware of where there has been hostile behavior . . . and that relates to Ms. Ahmed. Certainly, the telephone conversation that was recorded and the court heard, there were some indications that there was some aggression — expression and some loud discussions, et cetera. Ms. Garcia had an encounter of something similar two weeks ago . . . and then of course, . . . this last Saturday's behavior just does not seem to have a rational explanation as to the aggression or the hostile behavior that took place. . . .
As far as other factors that the court has to look at is what is the stability of the parents, and certainly there is disparity there. And not to the fault of Ms. Ahmed, Ms. Ahmed has, I think in the Court's opinion, tried to do the best that she can under the circumstances, and you are to be commended for having finished law school. . . .
The contact with the children has been minimal, and of course, this is not the factor that the court is look [sic] at and saying, "Well, because there has been minimal contact, Ms. Ahmed is going to be punished." Certainly not. Ms. Ahmed, you have had some difficult times throughout your life after the divorce and where you were trying to get yourself situated with law school, and perhaps you did not have the time or the finances to spend as much time with your children as you could have. And so I am not looking at that — negatively against you.
I have to look at what is in the best interest of the children. The children, after my discussion with them in chambers are excellent children, and both you and Dr. Rashid should be very proud. . . .
Now, I don't want these children not to be seeing you. That is not the intent of this court, and I am not going to do that. In fact, I want these children to get to know you better. I want these children to get to be with you. I want these children to get to know that Mom is not a bad mom and that mom, despite the fact that she may have had some difficulties, mom is going to do well and is going to have a good relationship with them.
I want that, but I also have to consider matters that were brought to the attention of the court by the ad litem and the recommendations of the ad litem. And based on that and based on the fact that the testimony that has been brought to the court as of today does point out some concern, I am going to make a ruling that custody will be modified from joint managing to sole managing conservator.
I am also going to order that you undergo a psychiatric evaluation, and I am going to — following that evaluation — and I am not going to require that you pay for it either. I am going to have Dr. Rashid pay for that evaluation, and then after that evaluation is done, then I want to address it. And then I want to — after that evaluation is brought to the Court and we have an opportunity to review it, I want to get you back on track to start visiting these children in a supervised fashion. . . . There should be no reason why you should not be able to have visitation with the children at a specific location without having to worry that someone that is there is going to be hearing what you are talking to with the children, so you are going to be given some time to visit with the children at a later time.
But what I am going to say is that you need to get evaluated and then I will address any other matters that need to be addressed to the Court as soon as that comes through. Now, the sooner you get that done, the better it will be for you and the better it will be for the children.
(Emphasis added).
It is clear that the trial court did not intend to terminate Ahmed's visitation and access. The court was obviously struggling, in light of these difficult and extreme circumstances, to balance Ahmed's rights with the best interests of the children.
III. Legal Analysis
A. The Best Interest of the Child is the Primary Consideration.
In a motion to modify, the children's best interest is always the court's primary consideration in determining the issues of conservatorship and possession of and access to the child. Tex. Fam. Code Ann. § 153.002 (Vernon 2002); Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002) (reiterating that best interest of child is primary consideration). The question of conservatorship of a child is left to the trial court's sound discretion when it sits as a trier of fact. Jenkins v. Jenkins, 16 S.W.3d 473, 477 (Tex.App.-El Paso 2000, no pet.). The trial court is in the best position to "observe the demeanor and personalities of the witnesses and can `feel' the forces, powers and influences that cannot be discerned by merely reading the record." Id. The Texas Supreme Court has compiled a set of nine non-exhaustive factors when determining the best interest of a child. See Holley v. Adams, 544 S.W.2d 367, 372 (Tex. 1976). These factors include: 1) the desires of the child, 2) the emotional and physical needs of the child now and in the future, 3) emotional and physical danger to the child now and in the future, 4) parenting abilities of the parties seeking custody, 5) programs available to assist these persons, 6) plans for the children by parties seeking custody, 7) stability of the home or proposed placement, 8) acts or omissions committed by the parent which may indicate that the existing parent-child relationship is not a proper one and 9) any excuse for the acts or omissions committed by the parent. Id.
B. The trial court followed the proper standard.
The majority interprets the trial court's ruling as if it had completely denied Ahmed all access and visitation, concluding that the trial court abused its discretion because the record does not reflect the existence of "extreme" grounds sufficient to support the trial court's purported termination of Ahmed's rights of access and visitation. The trial court's oral pronouncements, however, show that the trial judge did not terminate Ahmed's rights of access and visitation. Rather, the trial judge temporarily suspended those rights until it reviewed Ahmed's court-ordered psychiatric evaluation. Upon completion of the evaluation, Ahmed's visitation would resume and get "back on track." This ruling was not a permanent denial of visitation and access.
While the general rule in Texas is that the right of a parent to visit with his or her children placed in the custody of the other parent by the divorce decree will not be completely denied except when there are extreme grounds to support the denial, that rule does not apply to a temporary suspension of access and visitation. In Allison v. Allison, 660 S.W.2d 134, 137 (Tex.App.-San Antonio 1983, no writ), the San Antonio Court of Appeals specifically stated: "Since the trial court has ordered a termination of the right of access, not merely a suspension, we must look carefully at the record for evidence of `extreme grounds' to support such termination." Allison, 660 S.W.2d at 137 (emphasis added). Because the trial court's ruling in this case was a temporary suspension of Ahmed's access and visitation, the general rule is inapplicable. This case should have been reviewed under an abuse of discretion standard, i.e., whether the trial court's decision to restrict Ahmed's access and visitation was arbitrary or unreasonable. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam); Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985).
From the evidence presented at trial, I would hold that the trial court did not abuse its discretion in temporararily suspending Ahmed's visitation rights until the court reviewed her court-ordered psychiatric evaluation. Ahmed does not complain that the trial court erred by ordering her to have a psychiatric evaluation, and she does not complain that one is unnecessary. Although she claimed her threat to kill the children was not serious, my paramount concern is the best interest of the children. See Green v. Green, 850 S.W.2d 809, 812 (Tex.App.-El Paso 1993, no writ). I agree with the trial court that the children's best interest is satisfied by not exposing them to the danger of losing their lives at the hands of their mother. See Green, 850 S.W.2d at 812.
In Green, the evidence showed that the child's father spoke vulgarly to the child and that he would "walk around in front of the child with nothing on but a T-shirt." Green, 850 S.W.2d at 812. After hearing this evidence, the trial court concluded that (1) possession of and access to the child by the father is not in the child's best interest, and (2) possession of and access to the child by the father would endanger the child's physical and emotional welfare. Id. The trial court appointed the child's mother as sole managing conservator and denied the father his visitation rights. Id. On appeal, the father argued that the trial court erred in denying him visitation. Id. In affirming the trial court, the El Paso Court of Appeals determined that (1) more than a scintilla of evidence existed to support the trial court's findings; (2) the trial court's finding on the issues of possessory conservatorship and visitation were not against the great weight and preponderance of the evidence; and (3) the trial court did not abuse its discretion. Id.
C. The standard is not clear and convincing evidence as suggested by the majority.
The majority relies on three cases for the proposition that courts should respond to verbal threats by denying visitation only when they are repeated, incessant and accompanied by an extensive history of substance abuse, mental illness, or illegal behavior. See In re C.M.B., 204 S.W.3d 886, 896 (Tex.App.-Dallas 2006, no pet.); In re C.S.C., No. 02-06-00254-CV, 2006 WL 3438185 (Tex.App.-Fort Worth Nov. 30, 2006, no pet.) (mem. op.); Reyna v. Dept. of Family Protective Srvs., No. 01-05-00985-CV, 2006 WL 1098805, (Tex.App.-Houston [1st Dist.] April 27, 2006, no pet.). Each of these cases involve involuntary terminations of parent-child relationships, not temporary denials of access. In those cases, because of the elevated status of the parent-child relationship, the quantum of proof required was elevated from a preponderance of the evidence standard to one requiring clear and convincing evidence. Santosky v. Kramer, 455 U.S. 745, 758-59 (1982).
This case, however, did not involve the termination of Ms. Ahmed's parental rights. The trial court properly focused on the best interests of the children. Had the majority applied the correct standard, the only result it could have reached was that the trial court properly utilized its discretion. While I agree with the sanctity of the parent-child relationship as illustrated in Santosky, Ahmed was never in danger of permanently losing those rights in this proceeding. Based upon this record, it is likely that the trial court believed the children were in danger of losing their legal rights, or their lives, if it failed to intervene by requiring Ahmed to be evaluated.
D. Ahmed's Conduct was Extreme.
Regardless, the evidence presented showed that immediate access by Ms. Ahmed would endanger both the physical health and emotional well-being of the children. See Figueroa v. Figueroa, 580 S.W.2d 621, 623 (Tex.Civ.App.-El Paso 1979, no writ). The trial court heard the testimony of the witnesses, spoke to the children, and elicited the assistance of the children's guardian ad litem to reach its decision. The overwhelming evidence showed a history of a mother's serious lack of interest in her children as well as incidents of erratic behavior, including the acceptance of assistance from individuals whom Rashid believed sought to harm both the children and him. Moreover, Ahmed's threat to kill herself and her own children is the most telling and extremely disturbing evidence that the trial court heard. Clearly, the court believed that this was an extreme circumstance requiring immediate and decisive action. I cannot conceive of a circumstance where a death threat on a child would not be considered endangerment.
As an appellate court, we are confronted with only a "cold" record. The words spoken by Ahmed here are, indeed, chilling. If Texas law requires Rashid to prove extreme grounds, I cannot agree that the trial court abused its discretion by finding that the circumstances here were extreme.
IV. Injunctive Relief
By issue three, Ahmed argues the trial court erred in granting Rashid a permanent injunction against her. After the bench trial, the court stated, "I will enter an order for Ms. Ahmed not to be carrying out any activities that would be interpreted as a harassing manner." The court's written order stated that "[B]ecause of the conduct of . . . [Ms. Ahmed] a permanent injunction against her should be granted. . . ." The majority states that "[w]e believe that such an order is too indefinite to be enforceable and that there is no evidence to support the injunction." Slip op. at 12. I disagree.
Texas recognizes a right to privacy which includes the right to be free from willful intrusions into one's personal life at home and at work. Valenzuela v. Aquino, 763 S.W.2d 43, 45 (Tex.App.-Corpus Christi 1988, no writ). A person may obtain injunctive relief to protect the right to be left alone from unwanted attention. Id.; Kramer v. Downey, 680 S.W.2d 524, 525 (Tex.App.-Dallas 1984, writ ref'd n.r.e.). The decision to grant or deny a permanent injunction lies within the trial court's sound discretion, and appellate review is restricted to whether the action involved a clear abuse of discretion. Univ. Interscholastic League v. Buchanan, 848 S.W.2d 298, 301 (Tex.App.-Austin 1993, no writ); Hues v. Warren Petroleum Co., 814 S.W.2d 526, 529 (Tex.App.-Houston [14th Dist.] 1991, writ denied).
By granting the permanent injunction, the trial court sought to protect the rights of Dr. Rashid and his children to be free from unwanted attention and harassment. Based upon Dr. Rashid's testimony, I would hold that the trial court acted within its discretion by granting permanent injunctive relief. I would overrule issue three.
V. Discrepancy Between Oral Pronouncements Written Judgment
In footnote one, the majority, after noting the discrepancy between the oral pronouncements and the judgments, states: "This discrepancy is significant because if the denial of access and visitation rights was conditioned upon a [psychiatric] evaluation, then the trial court's order would be temporary, and this court would lack jurisdiction." (citation omitted). The majority further states that "Following the dissent's analysis, therefore, would require that we dismiss this case."
In his oral pronouncements, the trial judge stated that after the psychiatric evaluation, he wanted to resume visitation privileges on a supervised basis. Prior to this hearing, Ms. Ahmed had unsupervised, rather than supervised visitation privileges. Therefore, the modification of visitation privileges from unsupervised to supervised constitutes a permanent, and not a temporary, modification of the decree.
In its written order, the trial court made the following findings and orders:
The Court finds that the material allegations in the petition to modify are true and that the requested modification is in the best interest of the children. . . . IT IS ORDERED that the requested modification is GRANTED.
* * * * *
IT IS ORDERED that no visitation rights are given to Respondent SAMEENA AHMED.
This order does not preclude Respondent from seeking visitation rights upon compliance with Orders of this Court, the laws of the State of Texas and the United States.
IT IS ORDERED that no access to the children be given to Respondent SAMEENA AHMED.
When the record reflects a clerical variance between the judgment announced in open court and the judgment which the trial court eventually signed, an appellate court can modify the judgment to correct the mistake. Keim v. Anderson, 943 S.W.2d 938, 946 (Tex.App.-El Paso 1997, no writ); McLendon v. McLendon, 847 S.W.2d 601, 611 (Tex.App.-Dallas 1992, writ denied); Catlett v. Catlett, 630 S.W.2d 478, 483 (Tex.App.-Fort Worth 1982, writ ref'd n.r.e.). In other words, an appellate court can correct the entry of a final, written judgment that incorrectly states the judgment actually rendered by the trial judge. Escobar v. Escobar, 711 S.W.2d 230, 231-32 (Tex. 1986). A judgment is rendered whenever the trial judge officially announces his decision in open court in his official capacity for his official guidance whether orally or by written memorandum. Samples Exterminators, v. Samples, 640 S.W.2d 873, 875 (Tex. 1982) (per curiam); Balogh v. Ramos, 978 S.W.2d 696, 700 (Tex.App.-Corpus Christi 1998, pet. denied).
I do not believe the orally rendered judgment showed the trial judge intended to permanently terminate Ahmed's rights of access and visitation. However, the signed written order may give this impression because it specifically denied her these rights and allowed her to seek visitation only "upon compliance with Orders of this Court, the laws of the State of Texas and the United States." Thus, the written order incorrectly stated the orally rendered judgment because the written order: (1) did not require Ms. Ahmed to undergo a psychiatric evaluation; and (2) did not mention that pending the trial judge's review of the evaluation, he anticipated that Ahmed would start visiting the children in a supervised fashion. Accordingly, I would modify the signed order by deleting the following language:
IT IS ORDERED that no visitation rights are given to Respondent SAMEENA AHMED.
This order does not preclude Respondent from seeking visitation rights upon compliance with Orders of this Court, the laws of the State of Texas and the United States.
IT IS ORDERED that no access to the children be given to Respondent SAMEENA AHMED.
In place of the above language, I would substitute the following language:
IT IS ORDERED that no visitation rights are given to Respondent SAMEENA AHMED.
IT IS ORDERED that no access to the children be given to Respondent SAMEENA AHMED.
IT IS ORDERED that Respondent SAMEENA AHMED undergo a psychiatric evaluation.
This order does not preclude Respondent SAMEENA AHMED from resuming the right of access and supervised visitation upon the trial court's review of the psychiatric evaluation.
See Tex. R. App. P. 43.2(b); McLendon, 847 S.W.2d at 611 (when clerical variance existed between orally rendered judgment and recitations in final decree, appellate court can modify decree by deleting recitations in decree and substituting language to reflect orally rendered judgment).
VI. Conclusion
Based on my review of the evidence presented at the hearing, I cannot agree that the trial court abused its discretion by temporarily suspending Ms. Ahmed's access and visitation until it reviewed her psychiatric evaluation. Further, the trial court acted within its discretion by granting permanent injunctive relief. An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Holley, 864 S.W.2d at 706. There is ample evidence to support both the permanent injunction and the trial court's temporary suspension of access and visitation. Accordingly, I would modify the trial court's judgment, and as modified, I would affirm the judgment in its entirety.