In the Interest of I.W.O., a Child v. the State of Texas

Court of Appeals
Tenth Appellate District of Texas

10-24-00031-CV

In the Interest of I.W.O., a Child

On appeal from the
474th District Court of McLennan County, Texas
Judge E. Alan Bennett, presiding
Trial Court Cause No. 2017-3767-6

CHIEF JUSTICE JOHNSON delivered the opinion of the Court.

MEMORANDUM OPINION

A jury determined that Father should be appointed sole managing

conservator of I.W.O. with the exclusive right to designate his primary

residence. The trial court incorporated the jury’s verdict into a final judgment,

and Mother appeals from that judgment. In two issues, Mother argues that

(1) the trial court abused its discretion by refusing to permit I.W.O. to testify,

and (2) the evidence is insufficient to support the jury’s verdict that it is in the

best interest of I.W.O. to reside with Father. We affirm.
Background

Mother and Father married on November 20, 2004, and I.W.O. was born

on December 29, 2008. The trial court signed a Final Decree of Divorce on

October 4, 2018 that named Mother and Father as joint managing conservators

of I.W.O. Mother was awarded the exclusive right to designate the primary

residence of I.W.O. within 125 miles of the McLennan County Courthouse.

Mother also had the exclusive right to (1) consent to medical, dental, and

surgical treatment involving invasive procedures, (2) consent to psychiatric

and psychological treatment, and (3) make decisions concerning I.W.O.’s

education.

I.W.O. was diagnosed with autism when he was approximately two and

a half years old. He has normal verbal skills and is able to communicate well

with others. I.W.O. has issues with feeding and hygiene, and Mother and

Father have opposing views on how to manage those issues. Mother

homeschools I.W.O., and he attends a co-op for homeschool children one day a

week. Mother and Father also disagree on I.W.O.’s educational environment.

Another issue arose when Mother and Father disagreed over a major surgery

to correct I.W.O.’s tibial torsion. Father was unsure that the surgery was

medically necessary, while Mother wanted I.W.O. to have the surgery.

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Sometime in early 2022, I.W.O. refused to have visitation with Father,

which continued until the time of trial. On March 25, 2022, Father filed a

petition to modify the parent-child relationship. Mother then filed a

counterpetition in which she asked to be appointed as sole managing

conservator of I.W.O. Father amended his petition to modify the parent-child

relationship and requested that he be named the sole managing conservator of

I.W.O.

A jury determined that Father should be appointed as I.W.O.’s sole

managing conservator with the exclusive right to designate his primary

residence. The trial court signed a judgment in accordance with the jury’s

verdict, and Mother appeals.

Issue One

In the first issue, Mother argues that the trial court abused its discretion

by refusing to permit I.W.O. to testify at trial.

Standard of Review

We review the trial court’s decision to admit evidence for an abuse of

discretion. In re J.P.B., 180 S.W.3d 570, 575 (Tex. 2005); In re R.R., 711 S.W.3d

126, 136 (Tex. App.—Houston [1st Dist.] 2024, no pet.). A trial court abuses

its discretion when it acts without regard for any guiding rules or principles.

Low v. Henry, 221 S.W.3d 609, 614 (Tex. 2007). We may not reverse the trial

In the Interest of I.W.O., a Child Page 3
court’s order unless we conclude that the evidentiary error probably caused the

rendition of an improper judgment or probably prevented the appellant from

properly presenting the case to the court of appeals. See TEX. R. APP. P. 44.1(a);

In re R.R., 711 S.W.3d at 136.

Applicable Law

Rule of Evidence 403 allows for the exclusion of relevant evidence if the

probative value of the evidence is substantially outweighed by a danger of one

or more of the following: unfair prejudice, confusing the issues, misleading the

jury, undue delay, wasting time, or needlessly presenting cumulative evidence.

TEX. R. EVID. 403.

Discussion

After two days of testimony at trial, Mother stated that she intended to

call I.W.O. to testify. Father objected under Rule 403 arguing that the

testimony was unnecessarily cumulative. Mother maintained that the

testimony was relevant because it went to the central issues in the case, which

Mother’s counsel characterized as I.W.O.’s desire as to who he wants to make

decisions concerning his medical treatment and education. The trial court

agreed that I.W.O.’s testimony should be excluded under Rule 403.

On the final day of testimony, Mother reurged her request to call I.W.O.

to testify. Mother’s counsel prepared a brief in support of her argument that

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I.W.O. should be allowed to testify and read that brief on the record. Mother

argued that Father failed to offer any basis for excluding the evidence under

Rule 403 and that there was no explanation as to why I.W.O.’s testimony giving

his personal opinion about who he wants to live with would confuse the jury.

The trial court maintained its original ruling and excluded I.W.O.’s testimony.

Mother was allowed to call I.W.O. to make an offer of proof. I.W.O. stated

that he is homeschooled by Mother and that he goes to the co-op one day a

week. He said that he socializes with other children at the co-op and at church.

I.W.O. testified that he is comfortable with his educational setting and that he

wants to stay in that same setting. I.W.O. described that he has tibial torsion

that causes pain when he walks or runs. He expressed his desire to have

surgery to correct the tibial torsion.

I.W.O. further testified at the offer of proof that he made the decision to

stop having visitation with Father in February 2022. He explained that Father

would not help him with his hygiene issues and did not properly prepare his

food. I.W.O. did not believe that Father would ever change and stated that he

would not like to live with him.

Mother argues that when a child who is competent to testify is called as

a witness, the trial court does not have discretion to refuse to permit the child

to testify, citing Callicott v. Callicott as authority. 364 S.W.2d 455 (Tex. Civ.

In the Interest of I.W.O., a Child Page 5
App.—Houston 1963, writ ref’d n.r.e.). In Callicott, the Appellant father had

custody of the eight-year-old child, and the Appellee mother sought to change

the custody arrangement. Id. at 456. Appellant called the child as a witness

and requested that the child be examined in open court or in chambers. Id. at

457. The trial court sustained Appellee’s objection that the child was

incompetent to testify. Id. The trial court did not interview the child in

chambers to determine his competency and did not allow Appellant to make a

bill of exceptions. Id. at 456.

On appeal, the court held that the trial court erred in refusing to grant

Appellant’s request to examine the child either in open court or in chambers.

Id. at 457. The court noted that in chambers the trial court could have readily

determined the qualifications of the child to testify. Id. The court stated that

“[w]here a child of competent qualifications under the rules of evidence is called

to testify, the trial court does not have within his discretion the right to refuse

to permit such child to testify.” Id. at 458.

In Callicott, the court of appeals noted that the trial court did not talk to

the child and did not allow Appellant to properly prepare a bill of exceptions to

show the child’s qualifications to testify and what he would have testified to.

Id. at 458. Unlike Callicott, in the case before us, the trial court did not exclude

I.W.O.’s testimony based upon his competency. While the court in Callicott

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stated that a trial court does not have the discretion to permit a child of

competent qualifications to testify, the court did not hold that the Texas Rules

of Evidence do not apply to a child’s testimony. Therefore, we cannot conclude

that Callicott stands for the proposition that a child’s testimony is not subject

to the rules of evidence.

However, even if the trial court erred in excluding I.W.O.’s testimony

under Rule 403, Mother must show that the error probably caused the

rendition of an improper judgment or probably prevented Mother from

properly presenting the case to the court of appeals. See TEX. R. APP. P. 44.1(a);

In re R.R., 711 S.W.3d at 136. Mother must show that the excluded evidence

was both controlling on a material issue and not cumulative of other evidence.

Tex. Dep’t of Transp. v. Able, 35 S.W.3d 608, 617 (Tex. 2000); Greco v. Greco,

No. 04-07-00748-CV, 2008 WL 4056328, at *4 (Tex. App.—San Antonio Aug.

29, 2008, no pet.) (mem. op.). Evidentiary rulings are generally not harmful

unless the case turns on the particular evidence in question. Greco, 2008 WL

4056328, at *4.

Mother was able to make an offer of proof as to I.W.O.’s excluded

testimony. I.W.O. testified that he is comfortable in his current educational

environment and that he wants to have surgery to correct the tibial torsion.

I.W.O. further stated that he stopped visitation with Father and that he would

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not like to live with Father. I.W.O.’s testimony was cumulative of other

evidence heard by the jury.

The jury heard from numerous therapists, counselors, and health care

providers that I.W.O. felt safe with Mother and preferred her over Father. One

counselor asked Father not to show up to appointments unannounced because

she felt like the sessions were not productive when Father was present.

The trial court appointed Dr. Daphne Ainslie as a custody evaluator for

I.W.O. Dr. Ainslie interviewed both parents and I.W.O. She testified that

I.W.O. was “clear in his mind that [Mother] was perfect and all good while

[Father] was altogether horrible.” The jury heard from Dr. Ainslie, Mother,

and Father that I.W.O. had refused to attend visitation with Father since

February 2022. Dr. Ainslie also testified that I.W.O. wanted to continue with

his current educational environment. The jury heard further testimony that

I.W.O. was doing well in his educational environment and was excelling at the

co-op.

The jury heard considerable evidence on Mother and Father’s

disagreement on the surgery to correct I.W.O.’s tibial torsion. There was

testimony that Father obtained a second opinion from a doctor at the Scottish

Rite Pediatric Orthopedic Hospital who did not recommend surgery to treat

I.W.O.’s tibial torsion. Mother testified that physical therapy would

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strengthen I.W.O.’s muscles but would not correct the torsion in his legs. She

believed surgery was necessary to correct the condition.

After reviewing the entire record, Mother has not shown that I.W.O.’s

testimony was not cumulative of the other evidence presented. See Greco, 2008

WL 4056328, at *4. We cannot, on the record before us, determine that any

error in refusing to allow I.W.O. to testify caused the rendition of an improper

judgment. TEX. R. APP. P. 44.1(a); Greco, 2008 WL 4056328, at *4. We overrule

Mother’s first issue.

Issue Two

In her second issue, Mother argues that the jury’s verdict and the trial

court’s finding in its final judgment that it was in I.W.O.’s best interest to

reside with Father is legally insufficient.

Standard of Review

Because a trial court has broad discretion to decide the best interest of a

child in family law matters such as custody, visitation, and possession, we

typically review a decision to modify conservatorship for an abuse of that

discretion. Epps v. Deboise, 537 S.W.3d 238, 242 (Tex. App.—Houston [1st

Dist.] 2017, no pet.). However, when there was a jury trial, the trial court may

not contravene the jury verdict on the appointment of a sole managing

conservator. See TEX. FAM. CODE ANN. § 105.002(c)(1)(A); Douglas v. Douglas,

In the Interest of I.W.O., a Child Page 9
No. 01-22-00568-CV, 2024 WL 117168, at *1 (Tex. App.—Houston [1st Dist.]

Jan. 11, 2024, no pet.) (mem. op.). Instead, the jury’s verdict is reviewed for

legal and factual sufficiency. Douglas, 2024 WL 117168, at *1.

We will sustain a legal sufficiency or “no evidence” challenge if the record

shows: (1) a complete absence of evidence of a vital fact, (2) rules of law or

evidence bar the court from giving weight to the only evidence offered to prove

a vital fact, (3) the evidence offered to prove a vital fact is no more than a

scintilla, or (4) the evidence establishes the opposite of the vital fact. City of

Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005); Douglas, 2024 WL 117168,

at *2. In our legal sufficiency review, we consider the evidence in the light

most favorable to the verdict and indulge every reasonable inference that

would support it. City of Keller, 168 S.W.3d at 822. If the evidence at trial

enables reasonable and fair-minded people to differ in their conclusions, the

jury must be allowed to do so. Id. A reviewing court cannot substitute its

judgment for that of the jury, so long as the evidence falls within this zone of

reasonable disagreement. Id.

Applicable Law

The party seeking to modify the parent-child relationship must show

that (1) there has been a material and substantial change warranting the

modification since the last order establishing conservatorship of the child and

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(2) the modification would be a positive improvement for the child. TEX. FAM.

CODE ANN. § 156.101(a); In re V.L.K., 24 S.W.3d 338, 342 (Tex. 2000).

Discussion

Mother and Father filed competing petitions to be named sole managing

conservator of I.W.O. Both allege that the circumstances of the child, a

conservator, or other party affected by the order to be modified have materially

and substantially changed since the date of rendition of the order to be

modified. Therefore, the first element on modification is not at issue here.

Because Mother alleged in her counterpetition that circumstances relevant to

the appointment of a conservator and the terms of the conservatorship had

materially and substantially changed, she judicially admitted the first

element. Douglas, 2024 WL 117168, at *2 (citing In re A.N.G., 631 S.W.3d 471,

479–80 (Tex. App.—El Paso 2021, no pet.)) (“In a modification proceeding, if

both parties’ claims contain the common essential element of changed

circumstances ..., one party’s allegation that the essential element is met

constitutes a judicial admission.”). Consequently, Mother may not challenge

the sufficiency of the evidence supporting a material and substantial change.

Douglas, 2024 WL 117168, at *2.

Therefore, we will consider the second element, whether modification is

a positive improvement for I.W.O. Father maintains that Mother poisoned

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I.W.O.’s mind against him. Poisoning a child’s mind against a parent is not in

the child’s best interest and can be a guiding consideration in making

possession and access determinations. See Allen v. Allen, 475 S.W.3d 453, 458

(Tex. App.—Houston [14th Dist.] 2015, no pet.). Father testified that while

I.W.O. previously enjoyed his time with Father, visitation with I.W.O. ended

in February 2022. He stated that Mother undermines his relationship with

I.W.O. and opposes his presence in I.W.O.’s life. According to Father, Mother

prevented him from going to I.W.O.’s therapy appointments and interfered

with his access to I.W.O.’s medical care.

Dr. Ainslie also opined that Mother does not encourage a positive

relationship between I.W.O. and Father. In addition to her interviews with

I.W.O. and the parents, Dr. Ainslie conducted psychological testing on both

parents and reviewed numerous medical and court records. She talked to

many of I.W.O.’s therapy providers and other family members.

Dr. Ainslie testified that a CPS investigator observed that Mother

encourages I.W.O. to resent Father. The investigator further noted that

Mother blames Father for I.W.O.’s distress and physical problems and

encourages I.W.O. to blame Father as well. Dr. Ainslie testified that many of

I.W.O.’s professional providers reported concerns about Mother’s influence on

I.W.O. As an example, Mother told I.W.O. to keep a journal when he was with

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Father in order to have documented evidence to hold up in court. One therapist

told Dr. Ainslie that she did not allow Mother and I.W.O. to sit together while

in sessions because they conspired together.

Dr. Ainslie offered further testimony that relates to a positive

improvement for I.W.O. She stated that I.W.O. appears to be coddled by

Mother, and she said several professionals agreed with that assessment. Dr.

Ainslie opined that Mother infantilized I.W.O. and that it has contributed to

his lack of development and his disdain for Father. Dr. Ainslie further

determined that Mother has acted to stifle I.W.O. and limit his development.

She concluded that Mother’s “primary caregiving of [I.W.O.] has not resulted

in his having a life independent of her, even for a child on the autism

spectrum.”

Dr. Ainslie testified that I.W.O.’s providers believed that he should have

made more progress in feeding and hygiene. There was evidence that Father

encouraged I.W.O. to be more independent in feeding and hygiene. According

to Dr. Ainslie, Father has worked very hard for I.W.O. to have a more

mainstream experience.

Dr. Ainslie determined that Mother’s “dependence on [I.W.O.] represents

an emotional danger to him.” She stated that I.W.O. has lost the benefit of a

relationship with Father. Dr. Ainslie testified that in order to ensure I.W.O.

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has a relationship with both parents, I.W.O. should primarily reside with

Father.

After reviewing the evidence in the light most favorable to the verdict,

we conclude that the jury’s finding that Father should be appointed as sole

managing conservator of I.W.O. is supported by legally sufficient evidence. We

overrule Mother’s second issue.

Conclusion

Having overruled both of Mother’s issues on appeal, we affirm the trial

court’s judgment.

MATT JOHNSON
Chief Justice

OPINION DELIVERED and FILED: May 14, 2026
Before Chief Justice Johnson,
Justice Smith, and
Justice Harris
Affirmed
CV06

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