S
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-99-00675-CV
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IN RE BIANCA H.
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On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 93-19960-R
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OPINION
Before Justices Whittington, James, and O'Neill
Opinion By Justice O'Neill

In this appeal, the guardian ad litem for Bianca H., a child, appeals an order modifying the trial court's previous order and eliminating the visitation rights of Joseph Alfano, Jr. In six points of error, appellant contends the trial court (1) abused its discretion in modifying its order and (2) incorrectly applied the law in determining the best interest of the child. For the reasons set forth below, we affirm the trial court's judgment.

Factual and Procedural Background

        Joseph Alfano and Mother were married in 1990. During the marriage, Mother became pregnant with her daughter, Bianca. In December 1993, when Bianca was eighteen months old, Mother and Alfano separated. After Alfano filed for divorce, he learned that he was not Bianca's biological father, and in March 1995, Alfano was judicially determined not to be Bianca's father.         The final decree of divorce was entered in May 1995, when Bianca was almost three years old. When the divorce decree was entered, provisions were included to allow Alfano significant access to the child pending a psychological report and determination of what, if any, future relationship Alfano should have with Bianca.
        Mother subsequently filed a motion to modify seeking to terminate Alfano's visitation rights. The trial court held a hearing on the motion and, on February 27, 1996, denied the motion to terminate but greatly reduced Alfano's visitation. The trial court instructed Alfano that he would have to understand that he is not the child's father and that he was never going to be the child's father. The trial court explained to Alfano that it was going to get him “on a road that is putting [him] in the background, kind of like a supportive grandparent or aunt or uncle.” To accomplish this objective, the trial court allowed Alfano visitation one weekend a month and one weekday a month.         In addition to limiting visitation, the trial court also found Alfano had engaged in a course of conduct calculated to harass and annoy Mother. Consequently, Alfano was enjoined from being at any location where the child was present except (1) during his visitation or (2) at events where the public was allowed. Alfano appealed the trial court's order, and this Court affirmed.
        About two years later, Mother filed the instant motion to modify, again seeking to terminate Alfano's visitation rights. Alfano filed a cross-motion seeking to have the same visitation he would have if he were Bianca's father. The trial court held a hearing on the motions to modify.
        At the time of the hearing, Bianca was six years old and had been seeing Alfano on a limited basis since she was three and a half years old. At the hearing, Mother testified that since the trial court's prior order, she has remarried and she and her husband, David Mears, are expecting a child. She said Mears has children of his own and is a wonderful father. Furthermore, Mears wants to adopt Bianca. According to Mother, Mears has already become a “natural father” to Bianca. Bianca calls Mears “daddy” and loves him very much.
        Mother testified that after the prior modification, her relationship with Alfano initially improved. During this period, Mother believed Alfano wanted to reconcile. However, their relationship began to deteriorate by spring 1997, when Alfano attempted to pressure Mother to sign a document that would give him parental rights. Things further deteriorated when Mother told Alfano that she was seeing Mears. For example, Mother recounted a troubling incident in May 1998, when Alfano attended Bianca's kindergarten graduation. Bianca was in a room preparing for the ceremony with Mother, her stepfather and her grandparents. Alfano entered the room and announced, “Daddy's here, Daddy's here.” Bianca became nervous and upset. After the ceremony, Alfano chased Mother and Bianca out of the auditorium and again created a scene. Bianca was sad the rest of the day.
        Mother further complained that Alfano has contacted the news, radio, and print media about the litigation. An article was written in the Dallas Morning News, and Bianca's name was used on the radio. Mother is concerned of the effect the media attention will have on Bianca. Mother is also concerned about Alfano's continued visitation because, as Bianca has gotten older, she has begun to ask about Alfano. Specifically, Bianca wonders why she visits Alfano if he is not her father. Because of the situation, Bianca has been seeing a counselor. Mother said it is time to terminate Alfano's visitation rights before Bianca gets any older. Mother said it would be in Bianca's best interest for Alfano's visitation to cease.
        Mears testified that he and Mother have a very solid and loving relationship, and he and Bianca have developed a special bond. Bianca calls him “daddy” and Mears wants to adopt her. Mears said he is concerned about Alfano's continued visitation with Bianca. He explained the scene at the kindergarten graduation and said it was upsetting to Bianca Mears is now available as a male role model. He saw no benefit in Bianca's continued relationship with Alfano.
        Joan W. Garner, a psychologist, testified that she has counseled Bianca for about ten months. She said Bianca has several significant people in her life, the closest relationship being to Mother. Because Bianca and Mother are so close, Bianca can tell when Mother is upset. Mother told Garner she wanted visitation with Alfano to stop so Bianca could have a “normal” family. Garner also said the long-term conflict between Alfano and Mother has taken a significant toll on Bianca. Garner said ceasing visitation with Alfano would be in Bianca's best interest because it would reduce the conflict in Bianca's life. Although Bianca's relationship with Alfano seems positive, Garner did not get the impression that it was a major relationship in her life. Garner, however, never met with Alfano or saw him with Bianca.
        Garner acknowledged that Bianca was fond of Alfano and would be sad if she could no longer see him. However, because Mother is her primary attachment, Garner said Bianca would likely attach to whomever her mother married. She said if Mother's life stabilizes and Bianca makes a solid attachment to Mears, Bianca will probably suffer no long-term effects from ceasing contact with Alfano. Garner said Bianca has always spoken positively of Mears and has started calling him “daddy.” She could not think of any reason why Mears should not be permitted to adopt Bianca.
        Catherine Collins, a court-appointed psychologist, testified she attended a visitation between Bianca and Alfano. Collins said that she did not believe Alfano's rights should immediately be terminated. Instead, she recommended counseling because there was a period in 1996 or 1997 that the parties were able to get along.
        Alfano presented the testimony of several witnesses who stated that they have viewed Alfano with Bianca, she calls him “daddy,” and they have a father/daughter relationship. Furthermore, Alfano presented evidence that Bianca views his son like a brother.
        Alfano testified that he and Mother were able to get along for a period of time after the prior modification. Alfano denied he was trying to get back together during this period and, in fact, claimed it was Mother who wanted to reconcile. According to Alfano, if his visitation ceased, Bianca would suffer a great loss. Alfano told the court he would like standard visitation because he would like to see his “daughter” more than he sees her now. Alfano also said his son and Bianca are like brother and sister.
        Alfano admitted having a television crew videotape Bianca during one of his visitations. The crew filmed the child to air on the show Extra. He said the filming did not upset Bianca, she was not interviewed, and she did not know the filming was about the litigation. He claimed he told the show not to use names, and after speaking to his attorney, told them to blur Bianca's face. Alfano also admitted contacting the Dallas Morning News. He claimed he did so because he thought that someone might offer a solution. He also hoped someone might donate money for his legal fees.
        Richard Warshak testified he is a clinical research psychologist. Alfano hired Warshak to evaluate Alfano's case. Warshak has never met with Bianca, but has evaluated reports from other professionals and viewed a videotape of Bianca with Alfano. According to Warshak, Alfano is Bianca's “psychological father,” and ceasing contact with him could be devastating to Bianca. Warshak admitted that the law does not recognize the concept of a “psychological parent.” He further acknowledged that another psychologist said Bianca's attachment to Alfano was more like an attachment to an uncle or a grandfather.
        Warshak testified that when conflict between “parents” causes a child distress, a court should order counseling and sanction the parent that instigated the conflict. Warshak believed any harm Bianca suffered because of the conflict would be less than the harm she would suffer if she lost Alfano. Indeed, Warshak testified the best way to remedy the conflict would be to increase Alfano's access to the child.
        After the testimony, the trial court stated that Alfano had been put in the position of an uncle since the child was twenty months old. The trial court noted that it had attempted to resolve the situation for four years with no progress. The trial court considered limited visitation, but determined that it would only put off the inevitable. Accordingly, the trial court terminated Alfano's visitation rights.
        In its findings of fact, the trial court found that (1) Alfano is not legally or biologically related to the child, (2) a great deal of conflict exists between Mother and Alfano, (3) the conflict was unlikely to abate in the future, (4) the conflict was injurious to the child's best interest, (5) the circumstances of the child have materially and substantially changed since the date of the order sought to be modified, (6) the order has become unworkable and inappropriate under existing circumstances, and (7) modification would produce a positive improvement for and be in the best interest of the child. The trial court modified its prior order eliminating Alfano's right to possession of and access to the child. This appeal followed.
        Appellant raises six points of error. In the first five points of error, appellant asserts the trial court abused its discretion in modifying its prior order because the evidence is factually insufficient to support the trial court's findings. In the sixth point of error, appellant asserts the trial court incorrectly applied the law in determining modification would be in the child's best interest.

Standard of Review

We review a trial court's decision to grant or deny a motion to modify an order regarding access to a child under an abuse of discretion standard. See Seidel v. Seidel, 10 S.W.2d 365, 368 (Tex. App._Dallas 1999, no pet.). A trial court abuses its discretion when it acts in an arbitrary or unreasonable manner or when it acts without reference to any guiding principals. Id. Under the abuse of discretion standard, complaints regarding the sufficiency of the evidence, although not independent grounds for asserting error, are relevant factors in assessing whether the trial court abused its discretion. Id.
Findings of fact entered in a case tried to a court are of the same force and dignity as a jury's verdict upon special issues. Id. We apply the same standards of reviewing the sufficiency of the evidence supporting the trial court's findings as we do when reviewing the sufficiency of the evidence supporting a jury's answer to a special issue. Id. In reviewing a challenge to the factual sufficiency of the evidence, we examine all the evidence and set aside a finding only if it is so weak or so against the overwhelming weight of the evidence that it is clearly wrong and unjust. Id.

Grounds for Modification

Under section 156.301 of the Texas Family Code, the trial court may modify an order that sets the terms and conditions for possession of or access to a child if: (1) the circumstances of the child or a person affected by the order have materially and substantially changed since the date of the rendition of the order; or (2) the order has become unworkable or inappropriate under existing circumstances. See Tex. Fam. Code Ann. � 156.301 (Vernon 1996). Where a party is not related to the child, terminating the party's visitation rights does not require the extreme grounds that would be necessary if the party was a parent. See in re R.N.C., 768 S.W.2d 516, 518 (Tex. App._Fort Worth 1989, no writ). Although section 156.301 of the family code does not itself expressly require a finding that modification be in the child's best interest, section 153.002 provides that the best interest of the child is always the primary consideration in determining issues of conservatorship and possession of and access to a child. See Tex. Fam. Code Ann. � 153.002 (Vernon 1996). The trial court has broad discretion in determining the best interest of the child. See Roosth v. Roosth, 889 S.W.2d 445, 451 (Tex. App._Houston [14th Dist. 1994], writ denied).

Application

        In the first five points of error, appellant asserts the trial court abused its discretion in modifying its prior order because the evidence is factually insufficient to support the trial court's findings. In the sixth point of error, appellant asserts the trial court incorrectly focused on the interest of Mother in determining the child's best interest.
        The sole issue to be determined in this appeal is whether the trial court abused its discretion in modifying its previous order. Appellant's complaints concerning the sufficiency of the evidence are not independent grounds for relief, but are merely factors to consider in determining whether the trial court abused its discretion in modifying its prior order.
        In this case, the trial court found grounds for modification both because of a change in circumstances and because the order had become unworkable and inappropriate. Either one of these findings will support modification under section 156.301. See Tex. Fam. Code Ann. � 156.301 (Vernon 1996). In light of Alfano's lack of a biological relationship with Bianca, and viewing the record as a whole, we conclude the trial court did not abuse its discretion in finding its prior order has become inappropriate and unworkable.
        When the trial court entered the prior order, it expressly informed Alfano that its goal was to put him in the background as a “favorite uncle.” The trial court further cautioned Alfano that he would have to accept he is not the child's father. Despite the trial court's prior warning, Alfano has displayed an unwillingness to accept the role the trial court was attempting to foster by its order, as evidenced by his conduct at Bianca's kindergarten graduation. Indeed, Alfano spent much of his energy at trial attempting to show he was, in effect, the child's father. In light of the purpose of the trial court's order, which was to allow Alfano to relate to the child as an “uncle,” and Alfano's steadfast refusal to honor that role, we cannot conclude the trial court's finding that the prior order has become unworkable and inappropriate is so against the overwhelming weight of the evidence as to be clearly wrong and unjust.
        We now turn to whether the evidence is factually sufficient to support the trial court's finding that modification would be in the child's best interest. To show the trial court's finding is against the great weight and preponderance of the evidence, appellant relies on evidence that he is Bianca's “psychological father” and that cessation of contact with him would be harmful to her. However, there was also evidence that the extreme conflict between the parties was harmful to Bianca and caused her considerable distress. Expert testimony was presented that terminating Alfano's visitation would be in the child's best interest because of this conflict. Further, there was evidence that Alfano's significance in the child's life has lessened since the prior order and she has attached to a new father figure who wishes to adopt her. Furthermore, now that Bianca is older, she has, understandably, begun to question why Alfano has visitation. Bianca has required counseling because of the situation. After reviewing all the evidence, we cannot conclude the trial court's finding is so against the overwhelming weight of the evidence as to be clearly wrong and unjust.
        In reaching our conclusion, we reject appellant's assertion the trial court should have attempted other alternatives, like counseling, before modifying its prior order. Appellant cites us to no authority for the proposition that the trial court must attempt lesser alternatives to accomplish the child's best interest before modification. We conclude no such requirement exists where, as here, an order is modified to eliminate a nonparent's right to possession of and access to a child.
        We also reject appellant's assertion the trial court's consideration of the conflict between the parties showed the trial court elevated the parties' interests over that of the child. The parties desires, acts, and claims are material to the trial court's determination to the extent they bear upon the child's best interest. See Bukovich v. Bukovich, 399 S.W.2d 528, 529 (Tex. 1966). In this case, the trial court found modification would be in the child's best interest because the conflict was harmful to the child. Contrary to appellant's assertion, the trial court did not improperly focus on the interests of the parties. After reviewing the entire record, we conclude the evidence is factually sufficient to support the trial court's findings. Appellant has not shown the trial court abused its discretion in modifying its order. We overrule appellant's six points of error. We affirm the trial court's order.


                                                          MICHAEL J. O'NEILL
                                                          JUSTICE

Do Not Publish
Tex. R. App. P. 47
990675F.U05

File Date[06/14/2000]
File Name[990675F]