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IN RE: Christopher J. ORTEGON
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
In his petition for writ of mandamus, relator Christopher J. Ortegon asserts that the trial court abused its discretion by excluding the report and limiting the testimony of a guardian ad litem appointed in the underlying suit affecting the parent-child relationship (“SAPCR”), and that such error cannot be adequately remedied on appeal. We agree, so we conditionally grant the petition for writ of mandamus.
Ortegon and Ashlee are the parents of a four-year-old son. In the underlying SAPCR, the trial court signed an order (1) appointing Ortegon and Ashlee joint managing conservators of their son and (2) giving Ashlee “the exclusive right to designate the primary residence of the child within Bexar County, Texas or a county contiguous to Bexar County, Texas.” Both parties filed motions to modify. In her motion, Ashlee sought the court's permission to move their son to West Virginia. In his motion, Ortegon asserts Ashlee has already moved with their son to West Virginia and he asked that Ashlee be prevented from maintaining the child's residence outside of Bexar County or a county contiguous to Bexar County. Judge David Canales appointed Jack Bannin as the child's guardian ad litem.
Judge Canales made the appointment after finding that “under section 107.021 of the Texas Family Code, the best interest of the child is in dispute with regard to the geographic restriction issue, and ․ a guardian ad litem should be appointed to represent the best interests of the child․” [Emphasis in orig.] Bannin later filed his guardian ad litem report in which he concluded it was not in the child's best interest to lift the geographic restriction.
Ashlee then filed a motion to remove Bannin as guardian ad litem or to convert the guardian ad litem to a child custody evaluator (“motion to remove”). Ashlee alleged Bannin “did not follow the protocol for a child custody evaluation pursuant to Chapter 107 of the Texas Family Code.” Ashlee asked the court to remove Bannin as guardian ad litem and exclude him from testifying on any ultimate issue in the case.2 Ortegon filed a brief in opposition to Ashlee's motion to remove.
Following a hearing, the respondent, Judge Antonia Arteaga, signed an order: (1) excluding Bannin's October 30, 2019 report for all purposes; (2) preventing Bannin from updating, revising, or resubmitting his report; (3) excluding Bannin's opinion within the report; (4) limiting Bannin's testimony to what he observed as a fact witness; and (5) allowing Bannin to remain as guardian ad litem, but precluding him from engaging in any further activity, except as a witness in the event he is called by either party.
In his petition for writ of mandamus, Ortegon asserts that a guardian ad litem such as Bannin can testify about a child's best interest after performing the tasks described in Chapter 107, Subchapter A that apply to guardians ad litem. According to Ortegon, Bannin was not required to follow the protocol in Chapter 107, Subchapter D required for child custody evaluations. Ashlee contends Bannin was appointed for the sole purpose of investigating the child's best interest with regard to the geographic restriction—a fundamental issue of conservatorship—so Bannin was required to perform the child custody evaluation described by Chapter 107, Subchapter D before he could testify about best interest. Ashlee argues that since Bannin did not perform a child custody evaluation, he may not offer his recommendation on best interest under section 104.008. It is undisputed that Bannin did not perform a child custody evaluation.
STANDARD OF REVIEW
Mandamus is an extraordinary remedy that will issue only to correct a clear abuse of discretion when there is no other adequate remedy at law. In re Sw. Bell Tel. Co., L.P., 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id.
“In a suit in which the best interests of a child are at issue, other than a suit filed by a governmental entity requesting termination of the parent-child relationship or appointment of the entity as conservator of the child, the court may appoint ․ a guardian ad litem.” Tex. Fam. Code § 107.021(a)(3). The Family Code defines a “guardian ad litem” as “a person appointed to represent the best interests of a child” and includes “a professional, other than an attorney, who holds a relevant professional license and whose training relates to the determination of a child's best interests․” Id. § 107.001(5)(B).
Texas Family Code section 107.002 defines the rights and duties of guardians ad litem. Id. § 107.002. While guardians ad litem are not parties to the suit, they are specifically authorized to conduct an investigation “to determine the best interests of the child․” Id. § 107.002(a)(1). In addition, subject to certain limitations not present here, “the court shall ensure in a hearing or in a trial on the merits that a guardian ad litem has an opportunity to testify regarding, and is permitted to submit a report regarding, the guardian ad litem's recommendations relating to: (1) the best interests of the child; and (2) the bases for the guardian ad litem's recommendations. Id. § 107.002(e) (emphasis added).3
In contrast, Texas Family Code section 104.008 provides, “[a] person may not offer an expert opinion or recommendation relating to the conservatorship of or possession of or access to a child at issue in a suit unless the person has conducted a child custody evaluation relating to the child under Subchapter D, Chapter 107.” Id. § 104.008(a) (emphasis added). The Legislature added section 104.008 to the Texas Family Code in 2015 in response to the concern that those who performed child custody evaluations were “given an extreme amount of authority to make recommendations that affect Texas families.” House Comm. on State Affairs, Bill Analysis, Tex. H.B. 1449, 84th Leg., R.S. (2015). The Legislature noted that “the qualifications to become an evaluator are low considering the importance of the decision being made” and “there are not uniform standards for the report produced․” Id. When the Legislature added section 104.008 to the Texas Family Code, section 107.002(e) specifically authorized guardians ad litem to testify about the best interest of the child. See, e.g., In re R.L.A., IV, No. 12-12-00317-CV, 2013 WL 1092210, at *6 (Tex. App.—Tyler Mar. 15, 2013, no pet.) (mem. op.) (noting “the trial court must ensure that the guardian ad litem had an opportunity to testify regarding its recommendations relating to the best interest of the child and the bases for its recommendations”); see also Stoufflet v. Stoufflet, No. 03-08-00003-CV, 2009 WL 722280, at *12 (Tex. App.—Austin Mar. 20, 2009, no pet.) (mem. op.) (recognizing guardian ad litem's right to testify regarding her investigation and best interest recommendations); In re K.C.P., 142 S.W.3d 574, 585 (Tex. App.—Texarkana 2004, no pet.) (recognizing guardian ad litem's right to testify in court regarding best interest recommendation). We must presume the Legislature was aware of the interpretation of section 107.002(e) when it enacted section 104.008. See Acker v. Tex. Water Comm'n, 790 S.W.2d 299, 301 (Tex. 1990) (“A statute is presumed to have been enacted by the legislature with complete knowledge of the existing law and with reference to it.”).
We also must presume the Legislature intended to give effect to every provision of a statutory scheme. Tex. Gov't Code § 311.021(2); Ochsner v. Ochsner, 517 S.W.3d 717, 721 (Tex. 2016) (we may not construe a statutory scheme based on “snippets taken in isolation”). When considered in isolation, section 104.008 appears to show the Legislature's intent that child custody evaluators are the only witnesses who can provide recommendations on a child's best interest in disputes about conservatorship of and access to a child. Tex. Fam. Code § 104.008(a); see also §§ 107.101, 107.103(d). However, the Legislature also granted guardians ad litem this power under section 107.002(e). Id. § 107.002(e). Section 104.008 neither explicitly removes this power from guardians ad litem nor expressly provides that guardians ad litem must meet the statutory qualifications applicable to child custody evaluators. See id. § 104.008. Until such time as the Legislature clearly and plainly removes a guardian ad litem's ability to testify about the best interest of a child and vests that power exclusively in a child custody evaluator, our hands are tied—neither we nor the trial court may impose that result through “judicial guesswork.” BankDirect Capital Fin., LLC v. Plasma Fab, LLC, 519 S.W.3d 76, 86-87 (Tex. 2017) (“When decoding statutory language, we are bound by the Legislature's prescribed means (legislative handiwork), not its presumed intent (judicial guesswork).”). Because the trial court's order stripped the guardian ad litem of authority to which he was statutorily entitled, that order constituted an abuse of discretion. See In re Dep't of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex. 2009).
Having determined the trial court abused its discretion by incorrectly applying the law, we turn to the question of whether Ortegon has an adequate remedy at law. See, e.g., Walker, 827 S.W.2d at 840. Justice demands a speedy resolution of child custody issues. See Proffer v. Yates, 734 S.W.2d 671, 673 (Tex. 1987). In addition, “[m]andamus review of significant rulings in exceptional cases may be essential to preserve important ․ procedural rights ․ and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.” In re Prudential Ins. Co. of Am., Inc., 148 S.W.3d 124, 136 (Tex. 2004) (“An appellate remedy is ‘adequate’ when any benefits to mandamus review are outweighed by the detriments. When the benefits outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.”).
If the trial proceeds under the existing order, Ortegon will be prevented from presenting much of the court-appointed guardian ad litem's evidence on the best interest of the child. See e.g., In re Payne, 605 S.W.3d 240, 248 (Tex. App.—San Antonio 2020, orig. proceeding) (relators “established ‘the effective denial of a reasonable opportunity to develop the merits of [their] case, so that the trial would be a waste of judicial resources’ ”); In re Webb-Goetz, No. 01-19-00139-CV, 2019 WL 3293697, at *4 (Tex. App.—Houston [1st Dist.] July 23, 2019) (orig. proceeding) (holding “children affected by the underlying case should not suffer the delay of a second trial before the parents' rights to determine their primary residence can be established”). Under these circumstances, we hold the trial court's error in excluding the guardian ad litem report and limiting the testimony of the court-appointed guardian ad litem cannot be adequately remedied on appeal following trial.
We conditionally grant the petition for writ of mandamus and direct the trial court to vacate decretal paragraphs 4.2, 4.3, 4.4, 4.5 of its August 11, 2020, “Order on Motion to Remove Guardian Ad Litem” no later than fifteen days from the date of this opinion. Decretal paragraph 4.6 of the Order denying Ashlee's request for Bannin to conduct a child custody evaluation remains in place.
2. In his petition, Ortegon contends that during the hearing on the motion to remove, Ashlee also argued Family Code section 104.008 prevented Bannin from giving an opinion or recommendation related to the child's best interest or geographic restriction either by testimony or report. Ortegon certified no testimony was taken at this hearing and he believes there is no reporter's record. In her response to the petition for writ of mandamus, Ashlee stated the trial court's ruling was a matter of law and not the result of an evidentiary hearing.
3. Section 107.002 further provides, “[i]n a nonjury trial, a party may call the guardian ad litem as a witness for the purpose of cross-examination regarding the guardian's report without the guardian ad litem being listed as a witness by a party. If the guardian ad litem is not called as a witness, the court shall permit the guardian ad litem to testify in the narrative.” Id. § 107.002(f). In addition, “[i]n a contested case, the guardian ad litem shall provide copies of the guardian ad litem's report, if any, to the attorneys for the parties as directed by the court․” Id. § 107.002(g).
Opinion by: Beth Watkins, Justice
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Docket No: No. 04-20-00451-CV
Decided: December 16, 2020
Court: Court of Appeals of Texas, San Antonio.
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