### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 19
- 00876
- CV

Edward Navarro, Appellant

v. Erica Nichole Nunn, Appellee

FROM THE 353RD DISTRICT COURT OF TRAVIS COUNTY NO. D
- 1
- FM
- 16
- 005526, THE HONORABLE MAYA GUERRA GAMBLE, JUDGE PRESIDING

M E M O R A N D U M O P I N I O N

Edward Navarro appeals from the trial court ’ s order limiting his access to and possession of his daughter “ Kelly, ” who was four years old at the time of the final hearing. 1
Under the final order, the child ’ s mothe r, appellee Erica Nichole Nunn, was appointed sole managing con se rvator , while Navarro was appointed possessory conservator and awarded supervised visitation

. We affirm the trial court ’ s final order.

ST A NDARD OF REVIEW When a trial court is deciding is su es of con s ervatorsh ip, possession, and ac cess , its primary consideration is always the child ’ s best interest

. Tex. Fam. Code § 153.002 ; Brook v.
Brook , 881 S.W.2d 297, 298 (Tex. 1994)

. T he determination of such issues is “intensely fact

1 For the sake of the child ’ s privacy, we will refer to her by a pseudonym

.2

driven,” Lenz v

. Lenz , 7 9 S.W.3d 10, 19 (Tex. 2002) , and we will not disturb a trial court ’ s decision s unless the record shows that the court clearly abused its discret ion, Gillespie v. Gillespie , 644 S.W.2d 449, 451 (Tex. 1982) ; Iliff v. Iliff , 339 S.W.3d 126, 133 (Tex. A pp.

— Au s tin 2009) , aff ’ d , 339 S.W.3d 74 (T ex. 2011) ; In re J.R.D. , 169 S.W.3d 740, 743 (Tex. App.

— Austin 2005 , pet. denied )

. W e will not substitute our judgment for that of the trial court , Iliff , 339 S.W.3d at 133

- 34 , which is in “ a better position to d et ermine what will be in the best interest of the child since it faced the parties and their witnesses, observed their demeanor, and had the opportunity to evaluate the claims made by each parent , ” J.R.D. , 1 69 S.W.3d at 743

.

In reviewing a ruling u nder a n abuse

- o f

- discretion standard , we uphold the ruling unless the app e llant demonstrat e s that the trial court act ed arbitrarily or unreasonably or without reference to guiding rules and principles. Worford v. Stamper , 801 S.W.2d 108, 109 ( Tex.
1 990) ; Iliff

, 3 39 S.W

. 3d at 133

. A trial court does not abuse its discretion if some probative and
substantiv e evidence supports its order. Ili ff , 339 S.W. 3d at 134

. When considering the kinds of
issues raised in this appeal, our traditional sufficiency standards of r eview o verlap the abuse

- of

discretion standard , requiring us to conduct a two

- pronged inquiry , first asking whether the trial court had sufficient information upon which to exercise its discretion and next asking whether
the court erred in its applicatio n of dis c retion. I d

. “ A traditional su fficiency review comes into play with regard to the first question, and we must then determine whether, based on the evidence, the trial court ’ s decision was reasonable. ” I d

. There is “ a rebuttable presumpti on tha t the ap p ointment of the parents of a c hild as joint managing conservators is in the best interest of the child ” unless the tr ial court finds such

an appointment would not be in the child ’ s best interes t

. Tex. Fam. C ode § 153.131

. Th e section 153.131 pre su mption does n ot apply if c redible evidence is presented of one parent ’ s3

history or pattern of past or present child neglect, or physical or sexual abuse against the other parent, a spouse, or a child

. Id. § 153.004 ; see also id. § 153.131(a)

. It is fur th er presumed that a
p ossessory parent should be given periods of possession of his child pursuant to the st andard possession or der

. See id . § 153. 252

. If a court deviates from the st an dard possession ord er , it :

must render an order that grants period s o f possession of the child as similar as pos sible to those provided by the standard possession order if the work schedule or other special circumstances of the managing conservator, the posses sory conservato r, or the child, or the year

- round school sched u le o f the child, make the standard order unwo rkable or inappropriate.

Id . § 153.253

. In fashionin g a non - standard possession order, the court should consider the guidelines established by the standard posses sion order and may also consider the child ’ s ag e , de velopmental status, circumstances, and needs ; the parents ’ circumstances ; and “ any other
relevant factor. ” Id

. § 153.256

.

PRO CED URAL AND EVIDENTIARY SUMMARY Kelly was born to N unn and Na varro in Februa ry 2015. In September 2016, a fter the parents b ro ke up and Nunn moved out, Navarro fi led a petition seeking to be nam ed Kelly ’ s sole managing con servator. In D ecember 2016, the trial court signed temporary orders naming
the parents temporary joint manag i ng conservators and setting out a “ 5

- 2

- 2

- 5 ” vis i ta ti on schedule
for Navarro

. In May 2017, Nunn filed a motion for further temporary or ders stating that the parties had developed their own visitation s chedule rather than following the 5

- 2

- 2

- 5 schedule
but th at Navarro had abruptly asked that they re ver t t o the 5

- 2

- 2

- 5 schedule . She f urther asserted
that Navarro was re fusin g to use Kelly ’ s “ state spon sored day care , ” which required attendance4

five days a week. In November 2017, the trial court signed agr ee d further temporary orders,
order ing the partie s t o comply with the daycare provider ’ s attendance requirements

.

W h ile the case was pending, t he trial court appointed a guardian ad litem to determine Kelly ’ s best interest. The guardian ad litem filed t wo reports, one in January 2018 and one in Septem b er 2 01 8. In both re ports , she recommended that the parents be named join t managing c onservators and that the exi sting possession s chedule be continued until Kelly was old enough to enrol l in school, a t whi ch point the extended standard possession order s h ou ld apply , and stated that “ [s]upervised visits are not warranted with eit her parent at this time. ” The reports differed in the ir recommendation s on which parent should designate Kelly ’ s primary
residence

— in January, the gua rdian ad litem recommended Na v ar ro , and in S eptember , she

c hanged her r ep ort to recommend that Nunn designate Kelly ’ s primary residence. N o explanation was provided for the change , but t he ad litem did explain that she initially believed Navarro was being proactive in taking Kel l y to th e do ctor to address her medical needs but that

a fter further investigation , concerns about Navarro had aris en . She noted that Navarro made

“ n u merous allegation [s] of sexual abuse . . . that were not substantiated by medical
pro f e ssion als, ” that Na v arro ’ s pe rsistenc e in making his allegations while “ fail[ing] to report
other vital medical information ” led Kelly to undergo two sexual

- assault examination s , and that
Navarro would benefit from therapy to “ work on emotionally separating hims elf from M s. Nunn and r esisting the instinct to go beyond what is appropriate of an ex

- spouse. ”

In October 2018, Nunn file d a counter

- petition alleging that Navarro “ has a history or patter n o f committing family vi olence durin g the t wo - year period preceding the d a te of
filin g of this suit. ” She asked that if the court determined that allowing Navarro access to Kelly
would be in the child ’ s best interest, he be awarded possession under an order “ design ed to5

pr otect the safet y and well

- being of the child and any ot h er person w ho has been a vic tim of family violence , ” incl uding but not limited to requiring exchanges to occur in a protective se tting and ordering Navarro to complete a battering interv ent ion and pre venti on program. S tarting i n December 2018 and continu i ng through Ma rch 2019 , Nunn filed several motion s for
enforcement of temporary ord ers alleging that Navarro had not delivered Kelly to daycare or paid child support on multiple occasi ons and that he had interfered with Nunn ’ s possession at least twice

. I n April 2019 , Nunn filed a motion for additional further tempo rary orders , assert ing
that Navarro “ has continually interfered with [Nunn ’ s] access and possession of the child and
exhib ited be havior that may be a threat to the h ealth and safety of t he chi l d. ” She also a lleged
that Navarro had “ con tinually refused to bring the child to the daycare , ” that he had “ made several false claims regarding t he daycare , ” and that he had made mul ti ple false claims to child protective services (CPS ) about Nunn, all of which had bee n ruled out. Nunn asked that
Navarro ’ s possess ion be supervised unt il a final order was rendered and stated that N avarro

“ conti nually takes [the child] to Corpus Christi , and may do so an d not return the child. ” She eventually filed a proposed dispositi o n of issues that included a request for supervised visitatio n

un til Navarro complet e d at least one year of t herapy “ to work on his emotional iss ues. ”

A t the final hearing on September 30, 2019 , the trial court heard testimony by Nunn, Navarro, CPS inves t ig ator Stephanie Lovelace, and guardi an ad litem Ma r ly n Martinez.
Nunn explained that she had initially agreed with the guardian ad litem ’ s recommendations but that, “ based on his b eha vior over the last three months, o r two months, three months , ” Nunn now

w ant ed to be the chil d ’ s sole managing conserva tor and for Navarro “ to have supe rvised
visitation until he gets some kind of t herapy or counseling for his emotional issue s or whatever is going on in his p articu lar life. ”6 Nunn testi fied a bout the early da y s of her relationship with Navarro , assert ing that after Kelly was born, the relationship got “ worse and worse ” and Navarro became “ verbally abusive to me, mental ly abusive. He would talk down to me all the time, tell me ho w bad o f a mother I was and tha t I was a whore

. . . . ” Nunn asserted that w hen she liv ed with Navarro after Kelly was born, she was without access to a v ehicle or to “ a phone or a computer o r online

access. ” She said that by the time Ke l ly was about ei g hteen months old, she “ just did n ’ t want to take it anymore, ” so she left and too k Kelly to Washingt o n state to be with her family. They
returned to Texas after Navarro fi led his suit.

Nunn explained that because she lived in D r ift wood and worked in central Austin,
while Navarro liv e d in north Austin , she and Navarro had agree d on a centrally located daycare provider . Howev er, Nunn testified , Navarro had violated the trial court ’ s temporary orders by repeatedly failing to b ring Kel ly t o that dayca re , resulting in more than sixty

- fiv e a bsences
between June 2018 and February 201 9 , N unn being char ged $175 a month by Childcare Management Services , and the family being “ thrown out of ” the daycare program

. Nunn testified that on days that Na v arro did not bring Kelly to the agreed daycare, she would ask him where the child was, and N avar ro would respon d , “ Well, she ’ s with me, ” or , “ She ’ s in another daycare. ” H e also t old Nunn, “ As her primary parent I will decide where she goes to school , ”

an d Nunn tes tified that N a varro had claimed to be K elly ’ s “ primary par ent ” to various serv ice provi ders , for ins tance, Childcare Management Services and the child support o ffic e , caus ing problems for Nunn when she tried to communicate with th e service provid e r s . Nunn said that at
the time of the hearing, Kelly was goin g to a daycare near Navarro ’ s home , which Navarro had
chosen without consulting Nunn

. Nunn w anted Kelly t o return to the centrally located da yca re

on which the parties originally agreed

.7 Nunn testified that Navarro ha d refused to return K e lly to Nunn between March
18 and A pril 4, an d again shortly before the hearing. Nunn s aid that she had last seen Kelly on August 21, when she dropped off the child at the agreed

- up on dayc are , and that N a varro had
since kept the child , refus ing to return h er to Nunn despite Nunn ’s te xt ing Navarro “ e very day, when and where can I pick her up. ”

Nunn further testi fied that Navarro had not complied with the trial court ’ s child support orders , payi n g on ly “ sporadic [ally] ” and “ $50 here, [$] 250 there

. ” She a lso alleged that Navarro had repeatedly reported her to CPS, saying, “ I sure did get knocks on my door from CPS qui te a few times. And I did everything they wanted me to do and they were like, t hi s is
ridiculous. Why is he not giving you your kid back? ” Nunn testified that she wanted to
vaccinate Kelly , but because N a varro dis agree d , Nunn did not “ feel comfortable doing it be cause he ’ s just going to start some fight or call CPS on me again and sa y that I ’ m abus ing her. ” She wanted to get along with Nav a rro for Kelly ’ s sake , “ [b] ut if dad doesn ’ t get help for himse lf, I
don ’ t see that happening

. ” S h e and Navarro took six weeks of parenting c lasses in January 2017 , and Nunn said she “ learned a lot ” but did not “ see any progress from Mr. Navarro at all. ”

Nunn testified that she did not “ really have any issue with ” Nava rro and that

“ [a] pparently his issue is with me. ” Nunn said that Navarro “ indi cated all the time that I ’ m a ba d mother; that I sho u ld n ’ t have our daughter and I don ’ t deserve her. ” She te s ti fied that she thought Navarro “ needs mental help ” because :

he a cts very erratically, he ’ s not very consistent with our daug hter, he moves once a year. He ’ s just very inc onsistent with everythin g that he does. Like moving her around from daycare to da y care, moving her around to place to place. Lik e he ’ s moved three t imes in the past three years. I ’ ve held the same place for thr ee years. You kn ow, that he wants to talk abo ut consistency and all o f that, I ’ m8

sorry, I just don ’ t see it from him, excuse me.

Nunn said she believed Navarro posed a dange r to he r b ecause “ he ’ s ab usive to me, mentally an d emotionally ” and because “ he still talks down to me. He treats me like I ’ m dirt on his feet. Like
h e ’ s so much better than I am. I don ’ t deserve his chil d support, I don ’ t deserve to take care of
his ch ild. He ’ s very posse ssive with her

. ” A sked whether Navarro posed a danger to Kelly, Nunn said, “ I don ’ t really know. ” Nunn limited her communication s with Navarro to texts and refused to spe ak to him “ bec a use he just verbally abuses me. I really don ’ t feel like putting up
with that . I shouldn ’ t have to

. ” She did not b elieve she and Navarro could b e joint managing
conservators b ecause “ he ’ s n ot cons i stent and he doesn ’ t keep up to his word. He does what he
wants to do and th at ’ s really not, you know, good in [K elly ’ s] sa ke. ”

Navarro questioned Nunn about bruises, bitemarks, and bullyin g he alleged Kelly
suffered . Nunn agreed that Kelly had some t imes “ show[n] up with either b ruis es o r bites, ” saying, “ Su re, yeah. She ’ s a kid. ” S he denied tha t she had ever kept Kelly out of school due to
such issues and testified tha t she had never been asked by a daycare about any bruises or bites

. Navarro als o asked Nunn about “ an incident where you slammed [ Kelly] in the back of a car at
the mall park ing lot , ” and Nun n re sponded , “ He already tried to bring this up [in an ea rlier hearing] and it was

—has nothing to do wit h anything. . . . It was an accident. H e ’ s t rying to

m ake it into something that it wasn ’ t. ” T he police records introduced i nto evidence reflect that in August 2015, Navarro called the police and accused Nunn of ramming a shopping cart int o a

car , causing Kelly to fall from the cart

. Nunn to l d the police that she was hurrying to leave after
an arg ument with Navarro and struck a car with the cart in wh ich Kel ly was riding, strapped into
her car seat. Kelly fell either to the ground or int o the cart b ut did not fall out of the car seat o r9

cont a c t the pa vement. At the scene, Navarro told the police he did not think Nunn had

“ intentionally tried to hurt the chi ld

. ” However, in an i nterview two years later , Navarro told the police that the incident was not an a ccident , that he had not said it wa s , that Nunn had intentionally injured Kelly, and that Nu nn “ frequently leaves bruises on their child

. ” Kelly
sustaine d no injuries, and the police closed the case , noting, “ It is apparent that this incident was

an accident and that the mot her of the chil d would not intentionall y hurt her own child. ”

Navarro c ross - examined Nunn about whether she had ever atte nded Kelly ’ s medical appointmen t s, and she answered, “ No, because you never told me when the y are. ” He then asked whether she had “ ever done the re s ear ch to find out w here and how you can be a part of goi ng to her medical appointments, ” and Nunn answered, “ I asked you. You let me know at the very last minute: FYI, she ’ s got a doctor’s appo intment today. Why didn ’ t you let me know
earlier so I could go? Beca use I have to go work. You ’ ve done that quite a few times. ”

When he was asked whether he kep t Kelly from daycare starting in June 2018,
Navarro init ially r esponded, “ I didn ’ t keep her from daycare , ” then later answer ed, “ There was
times wher e she did not a ttend [daycare ] due to the level of abuse that was occurring. ” Navarro refused to agree tha t Kelly had missed daycare on “ a number of occasions, ” sayin g, “ There is a few occasions. I wouldn ’ t say a number of occasi ons, but there are a few

. ” H e also testif ied that he kept Kelly away from daycare “ [p]lenty of times ” because of:

The consistency o f the abuse that was occurring, either from or at the daycar e or from mom. And the uninterest [sic] of list ening to my daughter when she ’ s crying ou t , she does not want to be hit, bullied, or abused, or sh e does not want to show up with bites all over her , bruises all over her leg or on her thigh, or getting chasti sed at home and being yelled at and being afrai d to go back to school concerning the sit u ation, it ’ s not

— it ’ s not right.10

So th ere are occasions w here your child is not going to want to go to dayc are, they don ’ t want to go to daycare, if they ’ re tell ing you they ’ re not going to go and they ’ re being hurt at that daycare, you don ’ t want to take t hem to that daycare.

A sked about his withholding Kelly from Nunn , N avarro said, “ I ’ m glad you
asked. Sh e was crying outcri es of being abused. ” Navarro said he thought Kelly “ was in danger ” and therefore, “ to prevent any more harm for her, I kept her t h ose days

. ” N avarro also
asserted that N unn “ had an oppo rtunity ” to h ave Kelly for the disputed periods of possession :

She knows the address

— yes. She knows where she goes to school, yes. She knows where I live, yes. She knows how to knock on a door, ye s . She can show up at the school any time, I ’ m her mothe r, like she ’ s a lready done before, and pick her up

. But to answer that question fully, she ha s done none of these things. She ’ s offered every chance every ample ti me to show up there, let ’ s go.

Nav a rro said he “ make [s] it a point to provide ample informa tion and everything you could possibly need to fac ili tate [Kelly] with her education , medical, wellness, um, place of pickup, things of that nature ” and claim ed he had listed Nunn on the new daycare ’ s paperwork as “ a person to be

— that is able to pick up [K elly]

. She can d rop her off, pick her up at any t ime

. She has not made any effort to drop her of f or pick her up at any time. I nstead of

— instead of just complete silence in that. ” However, Nunn d i sputed Navarro ’ s assertion s, testif ying :

I called the sc hool, I went to the school. He knows t hat I get o ff of work at 4:00, I ’ ve worked at the same job for the p ast three years. He knows my schedule in and out, because he ’ s had to drop her off ther e an d pick her up there and what have you. He knows that I d on ’ t get out of work until between 4:00 a nd 4:30 e very day. By the time it takes me to get from my job to tha t school all the way up north it takes about 30 to 45 minutes. B y the time I get the re i t ’ s past 5:00. I don ’ t know where to go, the door is loc ked, there ’ s nobody there. I try to call, no body a nswers the phone.11

Navarro was a sked about Nunn ’ s text s asking where Kelly was a nd whe n she could pick her up

. He initially denied several times that he had refused to tell Nunn the child ’ s whereabo uts the n eventually admitted he “ didn ’ t respo n d, because she already knows the answer to that question. ”

Navarro alleged that Nunn had his utilities shut off, ask ed her friends to break into his apart m ent, arranged to have him assaulted , and “ gasli ghted ” and “ c atfishe d ” him . He
tes ti fied that Kelly twice got pne umonia and that Nunn simply dropped Kelly off with Navarro rather than taking h er to the emergency room . He said that “ e very ti me I get [Kell y ] back there ’ s al ways something wron g with her. Continuousl y . And I mend her back up, put b and

- aids on her, whatever needs. But the n again something else comes up that even looks more concerning with heavy

- handed grabs and her outcries. ” Finally, Nava r ro testified that Nunn had o rally agreed to s witch Kelly to her current school and that Kelly was thriving at the school.

CPS investigator Stephanie Lovelace testified that she was assigned to the fa mily
in August 2019 in response to allegations that Ke l ly had b een physical ly abuse d

. Lovelace
looked at a bruise above Kelly ’ s knee and spoke to K elly , Navarro , and the school nurse , and decided Kelly was “ a good candidate for a forensi c interview

. ” Lovelace testified tha t she spoke
to Navarro about the in t erview , “ specifically ask [ ing] him not t o have a conversatio n with [ Kelly ] about where she wa s going, what was going to happen ” during the interview. Ho wever, when Nav arro brought Kelly for the interview, she “ was cheer ful ” and “ appeared happy ” and

“ repo r ted imme diately when she c ame . . . that she came her e today to talk about her mommy hitting h er with a yellow hairbrush that s t ings. ” Thus, Love lace “ had some concerns that [Kelly] had been spoken to prior to being broug ht to the facility for he r to be i nterviewed

. ” Lovelace
testified that she spoke to Nunn abou t Kelly ’ s outcry of being str uck w ith a hairbru sh , and that Nunn had denied using ph ysical disciplin e. Lovelace said her inves tigation was be ing closed as12

“ Una ble to Determine on ” Nunn “ because w e just feel like there ’ s been a lot of probing and questioni ng of [Kelly] by her father, and

. . . we just feel like basically a lot of informati on has been given to [Kelly ] and we are unable to det ermine what happened

. ” Lovelace testified that the family “ ha d quite an extensive his tory ” with CPS and that none of th e allegations have
resulted in a “ reason to believe ” finding , saying :

[B] asically since [Kelly ] w as around two years old it looks like that w e ’ ve had calls into intake about three, six months , m a king allegation about p hysical abuse by mom, sexual abuse, neglectful supervision. It looks

— looks like some of the investigations have resulted in rule

- ou ts on those allegations, some of them have been administratively closed before t hey ’ ve ever been sta g e progressed to a full inves tigation. And it looks like mo st of them have been ruled out ove r the years.
The department has some concerns that this is basi cally a custody situation and somehow we are i n the middle of it.

L o velace testified that CPS had concerns because Kelly is “consisten tly probed
for informat ion , ” “ vi deoed repetitiv ely , ” and subjected to “ ongoing phot ographs , ” stating , “ [I] t concerns me that that information is being gathered in orde r to build some type of custo dy case
that is in that party ’ s b est interest, you know, by essentially using [Kell y ] as a basis for
information. ” S he further said she had concerns about Navarro ’ s pa renting because of “ the
number of photographs and videos th at I had seen of [Kelly ] being asked repetitively ab o ut marks and bruises

. ” Lovelace testified that Nunn had be en “ very cooperative with the depa rtment , we have not had any concerns with her. ”

Guardian ad litem Marlyn Martinez testified that she thoug ht N a varr o was “very
pro active in taking [Kelly ] to t he doctor due to diaper rash and

. . . the medical attentio n that she was needing. ” She also said Nav arro had a safe, appropriate home and was engaged and positive13

with Kelly. However, Martinez testified, Navarro was insiste nt that Kelly had been sexuall y abused although “ the medical staff didn ’ t deem that that was necessary ” and “ was just so persistent that he

. . . went like to another place to try to ha ve [Kelly] , you know, examined. So there were

— I believe there was a total of two [sexual assault] ex a ms completed on [Kelly] due
to all of this persiste nc e . ” Mar tinez testified about C PS ’ s involvement and concerns :

I believe it was more about the child abuse, concerns that you were persistent in getting looked into; at times when she was being taken to t he doctor. Also the fact that the first [sexual as sault e xam ] resulted with no e vi dence and you persisted on a second one. And I think that was their concern, that if this is what you ’ re telling [Kelly] , she ’ s actually

— will probably grow up believing th a t her mother wa s abusing her. And that was not the inform ati on, not the message w e ’ re trying to give [Kelly]

.
M a rtinez testified about the parents ’ ps ychological evaluations and said that for
N a varro , “ some type of an engagement in struct ure , behaviora l focus, parenting skills and stress management skills deve lopment clas s ” was recommended to “ assist Mr. Navarro in formulating more developmentally

- appropriate expectation s for his child because of the, you know, the
constant, consta nt doctor ’ s a ppointment s . ” T he evaluation also recommended individual

o utpatient c ounseling for Navarro , “ to increase coping skills, stress management, and improve
relaxation skills ” ; that Navarro engage in f amily therapy with Nunn , “ to increase communication
skills and bond as coparents ”; and that both Nunn and Navarro take a Domesti c Violen ce Preventi on class

. She did not know if Navarro or Nunn had followed those recommendations

.

Martinez had recommend ed in her most recent report that Nunn should determine Kelly ’ s primary r esidence , the parents should have joi nt managing conserva tor sh ip , and Navarro should have visitation u nder a 2

- 2

- 5 schedule . At the hearing, she was a sked if she would change her recommen dation s i f she learned that Navarro had twice withheld Kelly from N u nn ,14

that he had done so because he believed she was being abused , and that CPS had ruled out the allegations. M a rt inez a ns we red that those facts would change her recommendation and that she

“ would pro b ably then have Mr. Navarro have supervised visits. ”

At the conclusion of the hearing, the trial court said :

It ’ s clear to me that you both love your daughter very much. That is the positive from today ’ s evidence. The negative is that something is wrong, Mr. N avarro, with the way you interpret what I b e lieve are probably n ormal bruises on a four

year - old chil d. And with the way you are apparently single

- mindedly pursuing allegations that doct ors and professionals continue to tell you are not based in reality.

I don ’ t know what happened and why things a r en ’ t okay now. I he ard from Miss Nunn, her opinion on wh en they went wrong. They were okay before then, and that she would like to proceed like a normal family. But I don ’ t think that you guys can do that right now. I ’ m hopeful that you will get some h elp.

I wasn ’ t bein g flippant when I said e arlier that I think probably everyone in this family needs some therapy. You ’ ve been in court for three y ears, which is an incredibly long time. That causes trauma on everybody, even if it were a happy ending. So I encourage ever yone to seek out all of the low

- cost or free services that you can find for yourself and for your daughter. But I am going to issue orders that leaves one of you very unhappy, because I do not think that the two of you can coparent ef

f ectively at this tim e.

I do not believe [the] standard po ssession order is workable or appropriate under these circumstances. Unfortunately, Mr. Navarro, I am quite concerned about your conversations with [Kelly] , and so at this time I do not believe uns u pervi sed access to [ Ke lly] is in her best interest for yo u. The trial court then signed its final order, awarding Nunn the right to designate Kelly ’ s p rimary
residence , limiting Navarro ’ s visitation , and specif ying that the standard possess ion order “ is

u nworkable or inappropr iate under the ci rcumstances and no t in the best interest o f ” Kelly.15 DISCUSSION Navarro asserts that the trial court erred i n (1) requiring super vised visitation and (2) naming Nunn as sol e managing conservator. In both issues, we ask whether the evidence was sufficient for the trial cou rt to exercise its discretion in concluding that the usual presumptions

— in favor of joint managing conservatorship and against supervised visitation , s ee Tex. Fam. Code § § 153.131 , .252

— should not a p ply and whether the court erred i n applying its discretio n , see Iliff , 339 S.W.3d at 134

. I f some probative and substantiv e evidence supports the court ’ s order , we will n ot find an abuse o f discretion

. Ili f f , 339 S.W. 3d at 134

. N a varro insist s that Nu n n did not rebut the fami ly code ’s presumpt ion s an d that

“ [t] he fault attributed to Mr. Navarr o was that he was too proactive with regard to doctor ’ s and medical visits, an d that the [trial court] believed he was having discu ssions with the child that

were concerning, but these do not rise to the level to remove his fundamental right to be a participant an d managing conservator. ” However , that characterization of the eviden ce is not
accurate. In stead, th e trial court heard evidence that Navarro had refuse d to give Kelly to Nunn for her periods of possession ; mad e multiple accusation s of abuse against K elly , all of which had been ruled out; accused at le ast one dayc ar e provider of abusing Kelly ; violated the court ’ s temporary orders in several ways; w as insulting to Nunn ; and refused to cooperate with Nunn or
resp ond when she asked where Kelly was during the times he withheld the child from her
mother. There was evidence t hat Navarro told Kelly negative things about Nunn to alienate the
child from her mother and that h is fixation on the idea that Nunn was ab usive led the young child
to end ur e two sexu al

- as sault exams

. The court also heard the CPS investigat or ’ s and guardian ad
litem ’ s con cerns about Navarro ’ s “ persistence ” in insi s ting that Nunn was abusive and how that
behavior might adversely impact Kelly , and N a varro ’ s psycholo gical evaluation r ecommended16

that he engage in therapy and other services to improve his cop i ng and parenting skills.
A l though the trial court did not find a pattern of family violence by Navarro , see Tex. Fam. Code § 153.004 , Nunn testif

ied that he was ab usive and that she believed he pos ed a danger to her.

“ Factors that courts have cited in support of their decisions to limit a parent ’ s
p ossession and access to her child to supervised visits inclu de the parent ’ s inability to follow

cou rt orders, attempts to alienate the child from the othe r parent, and action s that improperly deny the other parent contact with the child. ” Trevino v. O ’ Qu i nn , No. 03

- 18

- 00197

- CV, 2019
WL 4125125, at *4

– 5 (Tex. App.

— Aust in Aug. 30, 2019 , no pet.) (mem . op . ) . A l though
Navarro disputed much of N unn ’ s testimony , it was for the trial court to ev a luate the witnesses and determine the credibility of their testimo n y. 2 See J.R.D. , 1 69 S.W.3d at 743

. On this record,

t he trial court had sufficient eviden tiary sup port for conclud ing that N a varro ’s apparent fixat ion
on the idea that Nunn or others were abusing Kelly

— to the possible det riment of Kelly ’ s we ll

2 T he trial court could have note d h ow often Navarro seemed combativ e o r evasive during the hearing , as reflected in the reporter ’ s record. See Capellen v. Capellen , 888 S.W.2d 539, 544 (Te x. App.

— El Paso 1994 , writ denied ) ( “ [O] ur reading of the ‘ cold record ’ would support a findin g by the t rial court that husband in his te stimony was evasive, uncooperative, less than candid, and had convenient memory lapses

. ” ) ; see also Walker v. Texas Dep ’ t of Fam

. & Protective Servs. , 312 S.W.3d 608, 625 n . 5 (Tex. App.

— Houston [1st Dist.] 2009 , pet. denied ) ( reporter ’ s record reflected th at father was evasive during test imony )

. For i nstance, Navarro refus ed to agree to the acc uracy of copies of the parties ’ texts or to Nunn ’ s listing of the date s Kelly missed day care but did not explain how they were in acc u rate

. In another excha nge, w hen asked whether during the fifteen days that he with held Kelly Nunn had repeatedly te xted him to ask where Kelly was and when Nunn could get her, Navarro answered, “She may have sent some text messages. Again, she

— i t’s a rhetorical question, so.” When t he trial c ourt informed Navarro that it was “not a rhetorical question” and that he had to answer, he adm itted, “I did not reply.” Finally, there was testimony about an accident Navarro had

— Nunn testified that when N avarro called to tell h er he was in the ho spital , she told her boss she could not w ork, picked up Kelly from daycare, picked up Navarro at the hospital , drove him to a store for bandages and other supplies, paid for some of the supplies, and drove back to his residence the next day to help chan ge his ban dages . Navar ro agre ed that Nunn had helped him in those ways but said, “ I felt like I was being taken advantage of . . . . I could have easily caught a Lyft or something

. . . . I mean I know I appreciate that, but at the same time there was a li ttle

— there was a manipulation that caus ed me to be taken advantage of in that way. ”17

bein g

— and his hostility to ward Nunn, his refu sal to comply with c ourt orders, and the parties ’
circumst ances a s a whole made joint managing conservatorship and visita tion under the standard possession order unworkable

. See Iliff , 339 S.W .3d at 140 ( upholding tr i al court ’s order where ,

“ based on [father ’ s] history of bizarre and unusual behavior , ” court found that joint m an aging conservatorship was not in children ’ s best interest and that visitation should be restricte d until
father completed court

- ordered psyc ho l ogical exam )

. Navarro has not shown that the trial court
abu sed its discretion in making its rulings o n con servatorship a nd visitation. We overrule
Nava rro ’ s two issues on appeal.

CONCLU SION

Because the evidence is sufficient to support the trial cour t ’ s limit ing Navarro ’ s visitation and namin g Nunn as Kelly ’ s sole managing conservator, we affirm the tr ial court ’ s fin al order.

_________________________ _________________ Jeff Rose, Chief Justice
Before Chief Justi c e Rose, Justices Baker and Kelly
Affirmed
Filed: Decemb er 23, 2020