Care of twin boys unchanged after week-long trial in Travis County case
Part 4 in a Series
Which parent should have the exclusive right to determine the primary residence of twin boys born to a never-married couple?
That was the only question for a Travis County jury of seven men and five women. The decision was to be based solely upon what the evidence indicated would be in the best interests of the children. The boys, who were a year old when the couple separated, recently turned seven. One of them is autistic.
In this case, the jury was asked to determine whether the circumstances had materially changed since the court order of November 12, 2010, which gave the mother primary custody. The trial was initiated by the boys’ father, who pushed this case back into court in an effort to win that right.
If the jury favored the father’s request, it would then be up to the judge to decide all related matters, such as how the children’s school and medical care should be decided, how visitation rights for the non-primary parent would be handled, and how and when the children will be exchanged.
The proceedings ended in a mistrial because a sufficient number of jurors were unable to agree on a verdict. Thus, the status quo was preserved. The mother, who has been the primary custodian of the boys care for more than five years, will continue.
In this type of civil case, at least 10 of the 12 jurors must agree on a verdict. The jury was impaneled on Monday May 2, then sat through more than three days of testimony, and deliberated for a total of about eight hours, starting the morning of Friday May 6 and resumed Monday May 9. Ultimately they informed the judge that they were hopelessly deadlocked.
Judge Stephen Yelenosky of the 425th District Court declared a mistrial late Monday morning.
While this particular case involved only one set of parents and children, the themes played out in the trial—the allegations of each other’s wrongdoing—are nearly universal given the highly emotional custody battles that are fought daily in the courts of not only Travis County but also the state and nation.
In 2013, the latest year for which statewide statistics were available, there were 76,423 divorces in Texas involving 59,135 children under the age of 18. Many of these children will be pawns in litigation that plays out over many years and leaves it to the family courts to determine what is in their best interests.
The father was represented by Joshua “Josh” Coffman of the Austin Law Office of Joshua Coffman. He told the jury that Judith Averill, a guardian ad litem who is employed by the Travis County Domestic Relations Office, has been involved in this case for more than a year and a half. He said that he would prove that the mother had been engaged in abuses of the children and parental alienation.
“If it’s true that the mom is alienating children then custody needs to be flipped,” he said. “I don’t believe there is any dispute on what parental alienation is or how it affects children, but what it is occurring in this case.”
Coffman accused the mother of scheduling therapy for the autistic twin during the time allotted by court order for the father’s visitation to prevent him from engaging with his son. He said the mother had refused both mediation and family therapy.
“I’m asking you to make dad the primary custodian because of parental alienation. Despite all the dad has been put through in embarrassing allegations, he still wants mom to be involved, because he knows the boys love their mother.”
The mother’s attorney was James “Jake” Gilbreath of the Austin firm McCullar Gilbreath PC. He told the jury that the parents separated when the boys were a year old and have an agreed order that indicates it’s best for them to grow with a loving mom, who has been in charge of the autistic son’s therapy.
He said that the father had refused to attend the boy’s weekly therapy sessions “because he doesn’t like to be in the same room” with the mother and instead requested that he be mailed notes from the therapy once a month.
“He’s not participating in raising the kids but Monday-morning quarterbacking,” Gilbreath said. “All these years he has been totally not involved in therapy and now wants to be put in charge.”
Gilbreath said the guardian ad litem was supposed to be even-handed in investigating but made only one home visit with the mother and three with the father. And after that single 45-minute visit with the mother, the guardian concluded she “can’t take care of this child” despite being involved in four organizations that support parents of autistic children.
“The evidence says that in November 2010 they agreed the boys would live with the mom and mom would take care of medical care. It’s great he wants to be involved now in the boys lives, but they should live with mom, as agreed to.”
Parental alienation described
Kelley A. Baker, PhD, was designated an expert witness, meaning that she was deemed qualified by expertise, training and special knowledge to present an opinion as evidence. “Generally speaking, experts may testify about their conclusions in a case so long as their analysis is scientifically sound,” according to one definition.
Baker was the first person called to the stand after the attorneys finished their opening statements. She said she had no knowledge of the parents or children in this case and had not reviewed any documents from it.
She said she was paid by Coffman, the father’s attorney, to testify about parental alienation. The fee schedule published on Baker’s website indicates that Travis County cases are booked as a full day, for which she charges $2,000.
At Coffman’s request Baker described what behaviors and remedies applied.
Baker said that parental alienation is a process where a child aligns solely with one parent, called the favored parent, and rejects and wants to sever all contact with the other parent, called the targeted parent. The result is loss of the support and involvement of both parents. It is destructive to the child’s long-term development, interferes with forming healthy relationships, and results in a higher incidence of depression and suicide.
Signs of parental alienation, Baker said, include telling a parent, “You’re not my mom (or dad).” A child may refer to the parent by first name. The parent may correct objectionable behavior with no improvement in the relationship. “There’s no way for the parent to get it right.” The child may mimic negative language used by the favored parent in describing the targeted parent. The favored parent may intrude on or interrupt the targeted parent’s visitation time, or schedule activities that interferes.
The favored parent “usually doesn’t follow court orders well,” Baker said, and there are “usually multiple CPS (Child Protective Service) and police reports” against the targeted parent. Complaints also may be filed against court-appointed officials, such as a guardian ad litem, if the favored parent’s accusations against the targeted parent are not supported.
Baker said that remedies to correct parental alienation may include intervention and support for the targeted parent and child, educating the parent who’s alienating, restricting the time between the favored parent and child, and placing the child with the targeted parent to overcome irrational fears.
On cross-examination by Gilbreath, Baker agreed that parental alienation is not recognized by the American Psychiatric Association in the Diagnostic and Statistical Manual of Mental Disorders (DSM-5), which “classifies mental disorders to improve diagnoses, treatment and research.”
Baker agreed that to prove parental alienation requires linking the evidence in a particular case to the indicators. The allegations in this case were that the boys’ mother, Cassandra Medrano, was alienating the children from their father, Jonathan Hortman. But as the trial progressed each attorney presented evidence on behalf of their clients that might be viewed as parental alienation by the other parent.
Gilbreath displayed videos made by the father that showed the boys happy and playing. He noted the father had not attended the weekly therapy sessions for the autistic twin. As to the multiple CPS reports filed against the father, many were filed not by the mother but by professionals who are required by law to do so when circumstances dictate. He defended against allegations the mother refused to provide a home address, telephone numbers and the boys’ social security numbers by stating the information was contained in records in the father’s possession.
Without consulting the mother, the father took the boys to a dentist who was not their regular dentist. Hortman routinely made video recordings, sometimes during exchanges of the children, sometimes at home to document bruises, which he said he made to protect himself.
Coffman countered by stating that Medrano, the mother, had sought to have the father’s contact with the twins restricted to supervised visitation, but had dropped that and had given the father more time with the boys only recently. He said Medrano had tarnished Hortman’s reputation with medical providers, school personnel and others.
Summary of testimony
Hortman said that his Thursday visitation times were interrupted after repeated excuses and finally stopped altogether in September 2012 and not resumed until August 2014 when the guardian ad litem was assigned to the case.
He said Medrano had made accusations that he was molesting the children, wasn’t feeding them, and was endangering them. The allegations were investigated and dismissed.
Hortman said he was arrested once for discharging a firearm in his apartment. He said he had been shooting in the country and was inspecting the weapon at home when it went off and a round went through the floor into the apartment below. “No one was hurt. It was an accident,” he said. The children were not with him at the time and the case was dismissed, he said.
Hortman said when he attended a meeting at the boy’s school regarding special education services the police were there and escorted him.
He said he made videos of exchanges to protect himself against false allegations. He said he skipped the Thursday therapy sessions because of false allegations and “I have concerns about being around her (Medrano).” That concern extended to a soccer game attended by both parents but at which Hortman moved away, so as not be near Medrano.
Hortman said he sought primary custody of the boys late last year, a decision he struggled with because, “It’s a big undertaking.”
Gilbreath said he had been Medrano’s attorney since June 2015 and noted that she had been much more responsive to Hortman since then, inviting him to soccer games and church, and extending his visitation time.
He noted that Hortman had said in a deposition that he had not been involved in any support groups.
“Look at the videos,” Gilbreath said. “You put cameras in front of the boys faces and talk about their mom. Do you have anything you need to apologize to Medrano about?”
Hortman replied, “No doubt neither of us handled things as well as possible.”
Five CPS employees testified about complaints received, investigations done, and complaints dismissed. None would say who initiated the complaints to CPS, as that information is confidential.
Guardian at litem testimony
Judith Averill, a licensed clinical social worker employed by the Travis County Domestic Relations Office, testified that she was assigned to the case as guardian ad litem in October 2014.
As guardian ad litem her responsibility under Texas Family Code Section 107.002 is to conduct an investigation as necessary to determine the best interests of the children. That duty includes obtaining and reviewing copies of the children’s relevant medical, psychological, and school records. Averill was not classified as an expert witness and therefore was limited in her testimony as to what she knows or had seen.
Before the jury was allowed to hear testimony from Averill, the judge and attorneys discussed what she would be allowed to say. She would not be allowed to provide a copy of her written report to the jury. She would not be able to testify as to what a doctor may have said to her about the children as that would be hearsay, a statement made outside of court, not made under oath, and which the opposing party cannot cross-examine.
Averill said she had been a social worker for 20 years and has worked for the Domestic Relations Office for almost three years. During the trial she was put on the stand numerous times and questioned extensively by both attorneys.
Making home visits is part of the guardian’s investigation.
On the one visit to the mother’s home, which lasted 45 minutes, Averill said she observed the autistic boy “being aggressive, violent, destructive, obviously unhappy. He threw furniture toward his mother. I observed her yanking him by the arm. Mom said that his behavior was not normal.
“I said I was afraid for her life and my safety,” Averill testified.
She said she had made three home visits with the father and had “no concerns.”
Averill said she had spoken to school principals, doctors, and therapists, and had obtained and read police records and reports prepared by Child Protective Services, which investigates reports of abuse and neglect of children.
She said that parents were required to attend co-parenting classes and Hortman attended, but Medrano had not, “to the best of my knowledge.”
Averill said Medrano had “not been easy to work with” and hasn’t “communicated with me well.” She claimed that Medrano was “disinclined to sign releases” for the records needed for the investigation.
Coffman closed his questioning of Averill by asking the bottom-line question, “Who should be the parent to decide the primary residence of the children? Based on your investigation what is your recommendation?”
Averill was unequivocal in her answer: “That the children go live with their father, in the best interests of the children.”
Attorney Gilbreath showed that Medrano had in fact signed 19 releases, and two blank releases that could be sent to any other agencies for records. He said Averill could have copied those signed blanks and used them as needed.
Gilbreath challenged Averill’s claim that Medrano has maintained a GoFundMe page “that tried to keep the children from their father.”
Averill conceded, “The impression I had was different. I was wrong.” (The page does say, “I require financial support to maintain primary custody….”)
He pointed out that after being deposed for this litigation Averill made a second home visit with the mother, “but didn’t tell the jury that (the autistic son) was extremely well behaved in that visit.”
“I attributed that to medication,” Averill said.
Gilbreath: “When dad came to you he provided a packet on what he wanted, everything bad she (Medrano) was doing?”
Averill: “He gave me a binder.”
Gilbreath: “But she wants to control the situation, he doesn’t? … Do you understand why the mom is skeptical about your approach to this case?”
Asked about the guardian’s deposition—in which Gilbreath said Averill stated that she “takes what he (Hortner) says to be true”—Averill replied, “I don’t think he lies to me. I don’t think he has reason to.”
Called back to the witness stand again later, Gilbreath recounted a time when Averill attended a meeting with the parents, school officials at Austin Independent School District, and Dianna Pharr, an educational consultant and advocate for children with special needs. The purpose of the meeting was to reach an understanding of the special education process and determine what school would be appropriate for the autistic son.
Averill was invited to the meeting by school officials, who had recommended the autistic boy be placed in the Rosedale School, which serves students who have “severe special needs.” Pharr had met with both parents in advance and all agreed that the boy should not be transferred to Rosedale.
Averill said that Medrano had stated Pharr spoke for her, and the “so-called advocate was bullying.”
Gilbreath: “AISD wants to put (the boy) in Rosedale?”
Averill: “It was on the table as an option. Neither parent was for it. Medications obviated the need to go to Rosedale.”
Gilbreath: “You’re supposed to observe. Instead you chimed in and told her (Pharr) to back off.”
Averill: “That was rude behavior. I wasn’t acting in my role (as guardian) sitting in a meeting and seeing her bullying principal and teachers.”
Gilbreath: “You’ve done a lot of stuff not in your role in this case.”
Later in Averill’s testimony the father’s attorney, Coffman, asked her to name the positive attributes of the mother and the father.
Averill: “She’s phenomenal when it comes to identifying and getting resources for the children. She has been very successful in finding resources. If there is one, she will find them.”
She praised the father for his “interaction with children, who were responding well to him.” Averill said he was “tender-hearted toward children” and “I believe he is ready, willing and able to be a parent to them.”
Guardian removed from the case
After the mistrial was declared and the jury retired, Coffman told The Austin Bulldog, “It’s as if we didn’t have a trial.”
A lot of time, money and energy were spent airing grievances of two parents, both of whom love and care for their children, to no avail.
As the party who brought the action, it will be up to the father to decide whether he wants to seek another trial. Coffman, his attorney, told The Austin Bulldog that the parents are scheduled to attend mediation in early June and if the case isn’t settled, it will proceed to a new jury trial.
For her part, the mother was overjoyed at the outcome.
One thing was settled: the parties agreed to remove Averill from the case going forward. If there are more hearings or another trial, Averill will not be called to testify, according to an Agreed Order that dismisses her.
Coffman said “Ms. Averill will terminate her investigation and she will no longer make recommendations in this case.”
Charge of the Court (Jury Instructions) (6 pages)
Court’s Response to Jury Questions (5 pages)
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