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rejecting appellant's complaint that trial court failed to interview her children in chambers under Family Code section 153.009 because appellant failed to preserve error by raising this complaint during the bench trial
Summary of this case from J.A.T. v. C.S.TOpinion
No. 05-16-00138-CV
03-06-2017
IN THE INTEREST OF J.S. AND J.S., MINOR CHILDREN
On Appeal from the 255th Judicial District Court Dallas County, Texas
Trial Court Cause No. DF-11-21046-S
MEMORANDUM OPINION
Before Justices Francis, Stoddart, and Whitehill
Opinion by Justice Whitehill
Appellant Mother and appellee Father divorced and were named joint managing conservators of their fourteen-year-old son (J.S.) and twelve-year-old daughter (also J.S.). Mother later filed a petition requesting several modifications to the divorce decree, including appointing her as the children's sole managing conservator and changes regarding child support and medical support. After a bench trial, the trial court denied most of this relief.
Mother appeals, raising six points of error. We overrule them all and affirm.
I. BACKGROUND
In December 2011, Mother filed for divorce from Father.
According to a forensic custody evaluation, Son was diagnosed in September 2012 with "multiple symptoms consistent with Asperger's."
In March 2013, the trial judge signed an agreed divorce decree. The decree contained several provisions relevant to this appeal:
• Mother and Father were appointed joint managing conservators of both children.
• Each parent had the right to consent to the children's medical, psychiatric, and psychological treatment subject to the other parent's agreement.
• Father was obliged to pay child support of $1,875 per month, which would drop to $1,500 once Son, the older child, turned 18 or graduated from high school, whichever occurred later.
• Father was given weekend possession of the children starting Thursday afternoons and ending on Monday mornings for weekends encompassing the first, third, and fifth Fridays of the month. He was given other periods of possession during vacations and holidays.
In June 2014, Mother filed a petition to modify asking that (i) she be named the children's sole managing conservator and (ii) Father's child and medical support obligations be increased.
On October 6 and 8, 2015, the case was tried without a jury. Son was then seventeen years old, and Daughter was fourteen. The trial focused largely on the severity of Son's Asperger's or autism spectrum disorder, as well as Father's relationships with the children and the high-conflict relationship between Mother and Father.
The trial judge signed an order (i) granting some requested modifications but denying others; (ii) maintaining both parents as the children's joint managing conservators; (iii) not changing the duration of Father's child support obligation for Son; (iv) extending Father's medical support obligation regarding Son to Son's twenty-first birthday; (v) giving Father possession of Daughter on Thursday evenings and Sunday afternoons; (vi) requiring Father and Son to attend appointments with Dr. Robert B. Mandell in an effort to "reunify" their relationship; and (vii) ordering that Father would have possession of Son as agreed to by Father and Son, subject to Mandell's recommendation.
That order, however, also contains the trial court's express fact finding relevant to family code § 154.302 (concerning court-ordered support for disabled children) that "[t]he Court does not find by a preponderance of the evidence . . . that [Son] requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self support at this time based on the evidence."
Mother timely filed a new trial motion, which was overruled by operation of law. She also timely requested findings of fact and conclusions of law, but the trial court did not make any.
Mother timely appealed.
II. ANALYSIS
A. Point of Error One: Did the trial court err by failing to interview the children in chambers?
Mother complains that the trial court did not interview the children in chambers pursuant to Texas Family Code § 153.009(a). We conclude that Mother did not preserve this point of error because she did not raise the issue at the bench trial.
Family Code § 153.009(a) provides that, in a nonjury trial and on a party's application, the trial court shall interview in chambers a child twelve years old or older "to determine the child's wishes as to conservatorship or as to the person who shall have the exclusive right to determine the child's primary residence." TEX. FAM. CODE § 153.009(a).
Mother's petition requested a § 153.009(a) interview. About a month before trial, she filed a motion requesting such an interview. Several days later, the judge signed an order granting the motion and ordering that the interview would take place at 4:00 p.m. on October 6, 2015. According to Mother's reply brief on appeal, this order was not sent to her.
The case was tried on October 6 and 8, 2015. The reporter's record does not reflect that anyone mentioned the in chambers interview on either day of trial. Mother did not complain about the judge's failure to interview the children until she filed her new trial motion.
To preserve a complaint for appellate review, a party must raise the complaint in the trial court "by a timely request, objection, or motion." TEX. R. APP. P. 33.1(a)(1). "A timely objection for purposes of rule 33.1 is one interposed at a point in the proceedings which gives the trial court the opportunity to cure any alleged error." Crews v. Dkasi Corp., 469 S.W.3d 194, 201 (Tex. App.—Dallas 2015, pet. denied) (internal quotations and citation omitted); see also Pouncy v. Garner, 626 S.W.2d 337, 340 (Tex. App.—Tyler 1981, writ ref'd n.r.e.) (complaints about jury selection are untimely if first raised in new trial motion).
Had Mother asked the trial judge to interview the children during the trial, the judge could have cured the error Mother now raises without the effort and expense of a new trial. We therefore conclude that error was not preserved because Mother did not timely raise her complaint in the trial court. Accordingly, we overrule Mother's first point of error.
B. Point of Error Two: Did the trial court abuse its discretion by not appointing Mother as the children's sole managing conservator?
Mother's second point of error challenges the order continuing the parents' joint managing conservatorship. We overrule her second point of error because there was conflicting evidence concerning this issue that precludes us from concluding that the trial court's ruling was an abuse of discretion.
1. Applicable Law and Standard of Review
Mother sought to be named the children's sole managing conservator, which would have given her exclusive rights to make most important decisions about the children. See FAM. § 153.132 (stating rights and duties of parent sole managing conservator); see also Mike McCurley, Examining Old and New Strategies for Family Law Practitioners in Texas, STRATEGIES FOR FAMILY LAW IN TEXAS, 2011 WL 5073114, at *3 (2011 ed.) ("[A] sole managing conservator basically makes all the decisions about the children to the exclusion of the possessory conservator, who only has visitation and other very limited rights.").
To obtain that modification, Mother bore the burden of proving (i) that the modification was in the children's best interests and (ii) there had been a material and substantial change in the circumstances of a child, a conservator, or another person affected by the divorce decree. See FAM. § 156.101(a)(1); In re S.N.Z., 421 S.W.3d 899, 909 (Tex. App.—Dallas 2014, pet. denied).
In determining a child's best interest, a court may consider, among other things:
(A) the desires of the child; (B) the emotional and physical needs of the child now and in the future; (C) the emotional and physical danger to the child now and in the future; (D) the parental abilities of the individuals seeking custody; (E) the programs available to assist these individuals to promote the best interest of the child; (F) the plans for the child by these individuals or by the agency seeking custody; (G) the stability of the home or proposed placement; (H) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (I) any excuse for the acts or omissions of the parent.Holley v. Adams, 544 S.W.2d 367, 371-72 (Tex. 1976) (footnotes omitted). Although Holley was a termination case, we have employed the Holley factors in modification cases as well. See In re S.N.Z., 421 S.W.3d at 910.
Mother asks us to consider the best interest factors found in § 153.134(a), which addresses court-ordered joint conservatorships. Modification proceedings, however, are governed by Family Code Chapter 156, not Chapter 153. Cf. In re V.L.K., 24 S.W.3d 338, 343 (Tex. 2000) ("Chapter 153 and Chapter 156 are distinct statutory schemes that involve different issues."). But, because the Holley factors are not exclusive, 544 S.W.2d at 371-72, the § 153.134(a) factors may also be considered in a modification case. See Caldwell v. Garfutt, No. 03-14-00019-CV, 2016 WL 105920, at *5 (Tex. App.—Austin Jan. 7, 2016, pet. denied) (mem. op.) (citing § 153.134(a)(2) in a modification appeal). Mother focuses on the factor stated in § 153.134(a)(2), which is "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." FAM. § 153.134(a)(2).
We review a modification decision for abuse of discretion. See In re M.M.S., 256 S.W.3d 470, 476 (Tex. App.—Dallas 2008, no pet.). We examine whether the judge had sufficient information on which to exercise its discretion and, if so, whether it acted reasonably in exercising its discretion. Id. Legal and factual sufficiency are not independent grounds of error under this review, but they are relevant factors. Id. There is no abuse of discretion as long as some substantive and probative evidence supports the trial court's decision. Id .
Also, the trial court has no discretion in determining what the law is or in applying it to the facts, so a failure to analyze or apply the law correctly also constitutes an abuse of discretion. Moroch v. Collins, 174 S.W.3d 849, 864-65 (Tex. App.—Dallas 2005, pet. denied)
"The trial court is in the best position to observe the witnesses and their demeanor and, therefore, is given great latitude when determining the best interests of the child." In re S.N.Z., 421 S.W.3d at 909; see also In re M.A.M., 346 S.W.3d 10, 14 (Tex. App.—Dallas 2011, pet. denied) ("The trial court, as the fact finder in this case, is the sole judge of the credibility of the witnesses and the weight to be given their testimony.").
2. Evidence at Trial
a. Evidence Relied on by Mother
Mother testified to the following facts: At the time of trial (October 2015), Father had not had visitation with Son since spring 2013 and had not had visitation with Daughter since December 2014. Father's relationship with Daughter deteriorated for several reasons. For example, Father lied to Daughter about a recording device that she found. Father often had long telephone conversations with women during Daughter's visits. Father would buy Daughter trinkets or clothes but not permit Daughter to take them back to Mother's house. If she accidentally took something to Mother's house, Father repeatedly questioned her about it. Father would become angry if he took Daughter out to dinner and she did not pay full attention to him. Eventually he took the doorknobs off Daughter's bedroom and bathroom doors at his residence, and Daughter felt that she had no privacy. Daughter became very upset when Father took her out to dinner and also brought his girlfriend along.
As to Son, Mother testified that he is a classic autism spectrum disorder individual. Over time, Son got angrier and angrier when Mother pushed him to communicate with Father. Son became angry with Daughter when she went on visits with Father. Son is very immature, and it would take substantial therapy and maturity on Son's part for him to have a relationship with Father. Son would be very resistant to reunification and would be very angry. About a year before trial, Son threatened suicide if he was ever forced to be with Father. It causes Son a lot of anxiety when Father attends Son's psychiatric appointments.
Dr. Jeffrey Siegel, a forensic and clinical psychologist, did a court-ordered forensic custody evaluation. He testified to the following facts: He thought Father was very concerned and very focused on Mother's "really agitated behavior, what he considered the alienating behavior, and [Mother's] having made negative comments to both kids about him." Testing indicated that Father was very angry, self-centered, and suspicious, and he was "clearly an emotionally upset man." He did not have these problems "with everyone that he interacts with, but more specifically within a family situation." He's "obviously a bright man, but with very limited emotional expression." Neither parent wanted "to take a whole lot of responsibility. Both of them see the other as the problem . . . ." Siegel agreed with medical reports that described Son as having "a high-functioning Asperger's." Mother always recognized Son's problems, while Father's awareness of Son's problem seemed to progress over time.
Siegel further testified that Mother has engaged in behaviors to alienate the children from Father, but Father's behavior contributed to it. Father has a very difficult time understanding Son's situation, and Father does not have the relationship with Daughter to do anything but argue with her. Son does not call Father "Dad" because he is mad at him, which is probably contributed to by both parents. There is no way Father could have possession of Son unless they go through a very programmed process to learn to interact with each other. Later, Siegel testified that the Father-Son relationship is fixable "[w]ith some real involved cognitive behavioral therapy" involving Father, Son, and Daughter. Siegel recommended the appointment of a parenting facilitator.
Mother also points to evidence that she and Father frequently disagreed about Son's evaluation, assessment, and treatment needs. Siegel testified that for two or three years Father refused to consent to "504 evaluations" that would have given Son access to classroom accommodations and perhaps remaining in the school district after age 18.
The witnesses' references to "504" appear to be references to § 504 of the federal Rehabilitation Act of 1973, a statute forbidding discrimination based on disability. See Austin State Hosp. v. Kitchen, 903 S.W.2d 83, 88 & n.6 (Tex. App.—Austin 1995, no writ) (discussing the Rehabilitation Act).
b. Contrary Evidence
Siegel's written forensic custody evaluation was admitted into evidence. He recommended that the parents should be named the children's joint managing conservators. He concluded that Father's behavior and poor understanding of the children's needs created emotional problems for them, but he also confirmed that Mother engaged in behaviors consistent with attempts to alienate the children from Father. Siegel's report details Father's accounts of Mother's (i) thwarting his access to the children when he would try to pick them up at school and (ii) baiting him to hit her (which he did not do).
Siegel's report also said that Son was getting counseling with Dr. Robert Mandell, and that Father had begun consulting with Mandell regarding Father's relationship with Son. According to the report, Mandell said that Father "had agreed to no longer try to force a relationship, but would like to try to work with Dr. Mandel[l] and [Son] to salvage some sort of future relationship." Mandell indicated that he saw "limited insight" on Father's part, but he agreed to continue to work with Father as long as he made an effort to learn what was best for Son.
Siegel observed that in joint meetings with Father and the children, Son was "distant, sullen, angry and confrontational" with Father because of financial issues that Mother had told Son about, but Daughter was "somewhat more conciliatory" and "agreed that spending time with her dad would be good."
Father testified that he was concerned that Mother began portraying Son as an incapable person very soon after Son was diagnosed as having "Asperger's with mild impairment." He thought Mother magnified the problem and that Son then began to show a similar attitude about himself. He was concerned that Mother might be coaching Son to exaggerate his autism symptoms.
Father called two of Son's high school teachers as witnesses. They testified that Son performed well in their classes and that they observed Son to have friends outside of class.
Father wrote a sixteen-page narrative of events, dated January 20, 2014, that was admitted at trial. That narrative described Mother's frequent violations of Father's visitation rights, Mother's verbally abusive behavior towards Father, and the fact that Mother described Son as displaying severe autism symptoms that Father never witnessed. The narrative also described Father's efforts to maintain relationships with the children.
Mother's reply brief complains that the narrative contains hearsay. But Mother offered the narrative into evidence at trial. Inadmissible hearsay admitted without objection can be given probative value. See TEX. R. EVID. 802 ("Inadmissible hearsay admitted without objection may not be denied probative value merely because it is hearsay.").
At the end of the first day of trial, Mother agreed to encourage Daughter to contact Father about having dinner with him the next evening. There was a one-day break in the trial. When trial resumed, Mother testified that Daughter and Father did in fact meet the previous evening. Daughter told Mother "it was fine."
Mother also testified that she did not think a parental facilitator was needed and that she did not think either parent needed an anger management class.
3. Application of the Law to the Facts
The ultimate question is whether the trial court made a reasonable decision by denying Mother's request to make her the sole managing conservator. See In re S.N.Z., 421 S.W.3d at 908. In reviewing the evidence, we defer to the trial court's determination of the witnesses' credibility and the weight to be given to their testimony. See id. at 909; In re M.A.M., 346 S.W.3d at 14. Based on this record, we conclude that the trial court did not abuse its discretion because there is some evidence of substantive and probative force supporting the trial court's decision. See In re M.M.S., 256 S.W.3d at 476 ("There is no abuse of discretion so long as some evidence of a substantive and probative character supports the trial court's decision.").
First, the court-appointed forensic psychologist performed a forensic custody evaluation and recommended that both parents be named joint managing conservators of the children. Siegel performed clinical interviews with and psychological tests on both parents, reviewed documentary evidence provided to him, and interviewed the children on several occasions. He identified shortcomings with both parents. He also repeated Mandell's report that Father had shown openness to working with Mandell to try to salvage his relationship with Son. The trial court was entitled to accept Siegel's report and testimony as supporting a continued joint managing conservatorship.
Next, both parents testified at the trial, and the trial court was entitled to assess their credibility and give their testimony the weight it deemed appropriate. It appears that a major reason Mother sought sole managing conservatorship was her perception that Father unreasonably withheld consent when Mother wanted certain evaluations, accommodations, and treatments for Son. Father's position, stated in his written narrative and supported by his testimony and Son's teachers' testimony, was generally that Mother exaggerates Son's disorder and that Son's best interest would be furthered by helping him build on his strengths and improve on his shortcomings. For example, Father resisted having Son evaluated for a 504 accommodation because Father was concerned that having a 504 plan can have a negative effect on a person's opportunities. Father testified that he promptly approved a facility's plan for Son on one occasion. The trial court could consider this evidence as supporting continuation of the joint managing conservatorship.
Moreover, Siegel found that Mother engaged in behaviors consistent with attempting to alienate the children from Father. The trial court's order specifically recited that Mother "used some forms of alienation with the children against" Father.
Mother, however, argues that the trial court's order requiring Mother and Father to communicate only by cellphone text message further shows that joint managing conservatorship is not feasible. There was ample evidence that Mother and Father had difficulty reaching agreement on how Son should be evaluated, accommodated, and treated. Nevertheless, based on the evidence, the trial court reasonably could have determined that continuing the joint managing conservatorship was preferable, in terms of Son's best interest, to giving Mother sole decision making power as to Son's evaluations, accommodations, and treatment.
As to Daughter, there was evidence that her relationship with Father could improve in the future. Siegel's report described her as being more conciliatory than Son towards Father, and Daughter agreed that spending some time with Father would be good. Father and Daughter went to dinner during the trial, and Mother testified that Daughter said the meeting went fine. Based on the evidence, the trial court could reasonably conclude that Daughter's best interest would be served by continuing the joint managing conservatorship.
Accordingly, the trial court did not abuse its discretion by continuing the joint managing conservatorship, and we overrule Mother's second point of error. C. Point of Error Six: Did the trial court abuse its discretion by giving each parent the independent right to consent to the children's medical, psychiatric, and psychological treatment after consulting with the other parent?
This point of error is similar to Mother's second point of error, so we discuss it next. The trial court modified the divorce decree's terms concerning the children's medical and psychiatric care. Mother argues that the modified terms constitute an abuse of discretion. See In re S.N.Z., 421 S.W.3d at 908 (discussing abuse of discretion standard for reviewing conservatorship modification orders). For the following reasons, we disagree.
The divorce decree gave each parent the right to consent to medical, psychiatric, and psychological treatment for the children "subject to the agreement of the other parent conservator." The modification order, by contrast, gives each parent "the independent right, after consultation with the other parent conservator," to consent to medical, psychiatric, and psychological treatment. The modification order also requires Mother to give Father notice of the children's doctor, therapy, and other kinds of appointments within an hour after scheduling them so that Father can attend if he wants. Finally, as previously noted, the modification order requires Mother and Father to communicate only by cellphone text message.
Mother argues that the trial court abused its discretion by imposing the new provisions regarding the children's medical and psychiatric care because the evidence showed that the parents "were absolutely unable to make shared decisions regarding their children." She seems to construe the modification order as permitting the children to be treated only with the parents' joint agreement, but this is incorrect. The order requires only consultation, not agreement.
We do not agree with Mother that the trial court abused its discretion, i.e., acted arbitrarily or unreasonably, in imposing the consultation provisions in the modification order. Although the evidence shows that Mother and Father have difficulty being civil when they communicate, there is also evidence that both parents care about their children. The evidence showed that Father consented to some of the evaluations and treatments that Mother wanted Son to have. Consultation by text message may not be convenient, but a consultation requirement is less onerous than an agreement requirement. Accordingly, the trial court did not act arbitrarily or unreasonably in imposing the conditions Mother complains of.
We overrule Mother's sixth point of error.
D. Point of Error Four: Did the trial court abuse its discretion by failing to find that Son met the criteria set forth in Family Code § 154.302?
Mother sought (i) a finding that Son was sufficiently disabled as to qualify for extended support under Family Code § 154.302(a) and (ii) an order that Father pay child support and medical support for Son indefinitely beyond Son's eighteenth birthday and high school graduation. The modification order did not extend Father's child support obligation for Son at all, and it extended his medical support obligation only to Son's twenty-first birthday.
Mother's fourth point of error attacks the trial court's failure to find that Son (i) required substantial care and personal supervision because of a physical or mental disability and (ii) would not be capable of self-support. See FAM. § 154.302(a)(1).
We disregard the express finding regarding § 154.302(a)(1) contained in the modification order because it is not contained in a separate document. See TEX. R. CIV. P. 299a ("Findings of fact shall not be recited in a judgment."); R.S. v. B.J.J., 883 S.W.2d 711, 715 n.5 (Tex. App.—Dallas 1994, no writ) (findings in the body of a judgment "are inappropriate and may not be considered on appeal."); see also In re A.A.M., No. 14-05-00740-CV, 2007 WL 1558701, at *3 n.3 (Tex. App.—Houston [14th Dist.] May 31, 2007, no pet.) (mem. op.) (applying Rule 299a to a modification order). But the trial court's failure to modify the decree to provide medical and child support indefinitely rests on an implied finding that Mother did not prove § 154.302(a)(1)'s elements. We address Mother's challenge to that implied finding.
1. Applicable Law
A court generally cannot order parents to support a child beyond the later of the child's eighteenth birthday or high-school graduation. See FAM. § 154.001(a)(1)-(4); In re W.R.B., No. 05-12-00776-CV, 2014 WL 1008222, at *3 (Tex. App.—Dallas Feb. 20, 2014, pet. denied) (mem. op.). Mother relies on an exception found in Family Code § 154.302(a), which provides that:
(a) The court may order either or both parents to provide for the support of a child for an indefinite period and may determine the rights and duties of the parents if the court finds that:
FAM. § 154.302(a).(1) the child, whether institutionalized or not, requires substantial care and personal supervision because of a mental or physical disability and will not be capable of self-support; and
(2) the disability exists, or the cause of the disability is known to exist, on or before the 18th birthday of the child.
Mother bore the burden of proof regarding that exception. See id.; cf. In re C.H.C., 392 S.W.3d 347, 349 (Tex. App.—Dallas 2013, no pet.) (party seeking child support modification under § 156.401 bears the burden of proof).
We review child support rulings for abuse of discretion. In re J.D.D., 242 S.W.3d 916, 919 (Tex. App.—Dallas 2008, pet. denied); see also Thompson v. Smith, 483 S.W.3d 87, 92-95 (Tex. App.—Houston [1st Dist.] 2015, no pet.) (reviewing a § 154.302(a) finding for abuse of discretion). We review the evidence in the light most favorable to the ruling and indulge every presumption in the ruling's favor. In re J.D.D., 242 S.W.3d at 920. If some probative and substantive evidence supports the order, there is no abuse of discretion. Id.
2. Application of the Law to the Facts
a. Evidence Relied on by Mother
Mother testified to the following facts about Son's abilities and limitations:
Every night before dinner, Son holds his hands over his ears, bows his head, and repeats things for two to three minutes before eating. He has trouble finishing tests at school because of his repetitive thought processes. Before he went on medication, he would walk in circles for an hour or two, or even more during a severe anxiety reaction. He became more reclusive as he entered puberty. He refuses to drive, and he does not ride a bicycle. He does not independently go places like 7-Eleven. He will not eat if he does not have a can of ravioli he can open and microwave. He is on three medications prescribed by his psychiatrist, and Mother helps him take his medications. He cannot name any friends that he has at school, and no one ever comes to his house to hang out with him.
Mother further testified that Son is not capable of self-support. She said she "would like to think it was possible" that he would be capable of self-support in the future, but it was very hard for her to imagine him living independently. She believes Son requires supervision. During the summer, without the structure school provides, Son becomes anxious and depressed, and he will not bathe or brush his teeth. He is very immature. He knows how to use a cellphone but he refuses to do so.
Mother applied to the Social Security Administration for disability benefits for Son. The Administration approved the claim and stated that Son met the eligibility rules for Social Security Income based on being disabled.
Siegel, the court-appointed forensic psychologist, testified to the following facts:
He would agree that Son has "high-functioning Asperger's." Son has limited social skills. He has an anxiety disorder, and he picks at his own skin as a result. Siegel said that Mandell did not think Son was capable of "doing eight hours a day, five days a week, fully independent living." Siegel's own impression was that Son "is a disabled individual." He did not think that Son was capable or would be capable of self-support "as defined by managing his day-to-day finances, his living, everything else on his own without assistance." Siegel went on to testify that Son "clearly meets the criteria for being a disabled person" and that his impression was that Son is "simply not capable, the way the statutes look at it, of functioning independently, working five days a week, 40 hours a week."
b. Contrary Evidence
Son's advanced placement physics teacher, Steven Lambert, testified to the following facts:
Lambert had Son in his AP Physics 1 class during the 2014-2015 school year, and Son was in Lambert's AP Physics C class at the time of trial. Son was a strong B student in a class with only two A students. Son was part of a lab group of three or four students, and Son functioned as normally in that group as other students. Son responds to Lambert's questions in class and participates in "white boarding presentations" in front of the class. When Lambert found out Son had received a 504 accommodation, he told the counselor that he did not do anything special for Son and did not think he needed to because of Son's already high performance. Lambert and Son had conversations about physics topics, and Son's vocabulary was that of a normal high school senior. Lambert thought Son could be gainfully employed if he continued the conscientious attitude he displayed in Lambert's class. Lambert has seen Son in the school lunchroom with a circle of friends. When asked directly whether Son required personal supervision during school, Lambert answered no.
Son's principles of engineering teacher, Sean Denny, testified to the following facts:
Denny taught Son during the 2014-2015 school year. Son was a hard worker and a B student in the class. Son expressed himself slowly from time to time, but he fit in the classroom and did the work Denny asked him to do. Son participated in class discussions when asked. Denny observed Son with friends at lunch. Denny thought Son matured as a person over the 2014-2015 school year. He thought Son would qualify for some internships with companies in the area.
Father testified that teachers at Son's school had described Son as "moving and grooving and hanging with his friends." He also said that teachers told him that Son participated in group activities and "had befriended groups of kids in one of his classes."
Father contradicted some of Mother's testimony about Son's behavior. He testified that he had never seen Son talking to himself or pacing in circles. Similarly, Father's written narrative from January 2014 recited that Mother "and her relatives attribute bizarre behavior to [Son] that he rarely or never showed when he was with" Father.
Father's narrative describing the period from December 2011 to March 2013 stated that Son "is good natured, has good and warm relationship with me and his sister, sense of humor, enjoys mutual activities such as swimming, water volleyball, model rockets, watching TV, eating out, indoor beach-ball volleyball, [and] hunting." It also stated that in late 2012 or early 2013 a Dr. Baker at Metrocare "gave a good prognosis for [Son] to have a normal life, I believe he said [Son] just needed some guidance with social interaction, empathizing with others."
Father spoke with some of Son's teachers in fall 2013, and they generally reported that Son was doing well. The school counselor told Father that she did not notice any problems with Son and noted that he had been making mostly A's.
Father argues that Siegel also gave other testimony that supports the implied finding. Siegel thought Son was capable of doing some part-time work and could probably do some computer-based work at home or in an environment with limited distractions. When asked if Son would need someone to manage his affairs, Siegel said:
I think he will need someone to help him manage the affairs to make sure that he is aware of those day-to-day responsibilities and remember to do those things and attend to those things, yes. He is not a mentally retarded individual, by any means. He's got a lot of brainpower. It just doesn't work in that direction.Siegel also testified that it is possible for a disabled person to be capable of full-time employment, independent living, and managing his or her own affairs. He thought that Son could benefit from adaptive living skills classes. He also thought that Son could earn a living, just not within the normal full-time work schedule. Son told Siegel that he would like to go to college and become an engineer. Siegel thought that Son was certainly capable of learning a tremendous amount about engineering, science, and the related technology, but he thought it would be difficult for Son to work on a design team or have "an ongoing series of interactions."
When directly asked if Son would require substantial care and personal supervision, Siegel replied:
I think he'll require care and supervision. When you say substantial, I think he will probably need to be directed to remember to attend to his hygiene sometimes. It depends on the breadth of what the supervision would need to be, but I think he'll certainly need some supervision and probably a significant amount of it over time.When asked if Son was "stuck" at his current level of socialization and interaction skills, Siegel said, "It is certainly not unreasonable that he can have some improvement in that area." He qualified his answer by saying that Son was likely to do better in a small group that is always the same people and in other very structured situations, while he would probably not do as well in loud, spontaneous situations.
c. Analysis
We conclude that there is some probative and substantive evidence to support an implied finding that § 154.302(a)(1) was not satisfied. Accordingly, the trial court did not abuse its discretion. See In re J.D.D., 242 S.W.3d at 920 ("If some probative and substantive evidence supports the order, there is no abuse of discretion.").
The first element of § 154.302(a)(1) is that Son required substantial care and personal supervision because of a physical or mental disability. Mother's testimony about Son's limitations would tend to support this element, but Father produced evidence that Son was capable of functioning at a higher level than Mother's testimony would indicate. In a bench trial, the trial court is the judge of the witnesses' credibility, and it was entitled to give Mother's testimony whatever weight it deemed appropriate. See In re M.A.M., 346 S.W.3d at 14. Given the evidence described above, it was within the trial court's discretion to conclude that Mother had not carried her burden to show that Son's disability will cause him to require substantial personal care and personal supervision.
The second § 154.302(a)(1) element is that Son will not be capable of self-support. Again, Mother and Father introduced conflicting evidence about the severity of Son's limitations and the extent of his abilities to overcome them. The trial court was entitled to discount Mother's evidence and credit Father's evidence. And again, it was within the trial court's discretion to conclude that Mother had not carried her burden to show that Son will not be capable of self-support.
For these reasons, we overrule Mother's fourth point of error.
E. Points of Error Three and Five: Did the trial court abuse its discretion by refusing to extend Father's child support obligation and by extending Father's medical support obligation only to Son's twenty-first birthday?
Our overruling of Mother's fourth point of error largely disposes of Mother's third and fifth points of error.
Mother's fifth point of error argues that the trial court abused its discretion by refusing to extend Father's child support obligation as to Son beyond the later of Son's eighteenth birthday and high school graduation. Because we have upheld the trial court's implied finding that § 154.302(a)(1) was not satisfied, it follows that the trial court did not abuse its discretion by denying any extension of child support beyond the later of Son's eighteenth birthday or his high school graduation. Thus, we overrule Mother's fifth point of error.
Mother's third point of error attacks the trial court's ruling extending Father's medical support duty until Son's twenty-first birthday. She argues that "extending the medical child support for such a short duration beyond the normal termination date was inconsistent and illogical under the circumstances." But given the trial court's implied finding that Mother did not carry her § 154.302(a)(1) burden of proof—which we have upheld—Mother was not entitled to any extension of Father's medical support duty at all. Any abuse of discretion in this ruling works in Mother's favor, so she cannot show any harm from it. Accordingly, we overrule Mother's third point of error.
Father did not appeal the order extending his medical support duty to Son's twenty-first birthday, so we express no opinion about the order's propriety beyond rejecting Mother's complaint.
III. DISPOSITION
Having overruled all of Mother's points of error, we affirm the trial court's judgment.
/Bill Whitehill/
BILL WHITEHILL
JUSTICE 160138F.P05
JUDGMENT
On Appeal from the 255th Judicial District Court, Dallas County, Texas
Trial Court Cause No. DF-11-21046-S.
Opinion delivered by Justice Whitehill. Justices Francis and Stoddart participating.
In accordance with this Court's opinion of this date, the judgment of the trial court is AFFIRMED.
We ORDER that each party bear its own costs of the appeal. Judgment entered March 6, 2017.