In Re Heather Zermeno, Relator v. the State of Texas

In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                    No. 07-26-00068-CV


                        IN RE HEATHER ZERMENO, RELATOR

                                    Original Proceeding
                   Arising From Proceedings Before the 154th District Court
                                    Lamb County, Texas
                Trial Court No. DCV-21115-25; Honorable Scott Say, Presiding

                                      April 16, 2026
                            MEMORANDUM OPINION
                     Before DOSS and YARBROUGH and PRATT, JJ.


        By this original proceeding, Relator, Heather Zermeno (Mother), seeks to compel

the Honorable Scott Say, Judge of the 154th District Court, to vacate his temporary order

appointing her and Jose Zermeno (Father) joint managing conservators in the underlying

divorce proceeding because doing so violated section 153.004(b) of the Texas Family

Code.     She requests this Court render judgment appointing her sole managing

conservator and remanding the cause to the trial court for a determination of visitation

and child support. By a sole issue, she asserts the trial court abused its discretion in

appointing Father joint managing conservator in the face of uncontroverted testimony of
domestic violence perpetrated by him. Based on the rationale discussed herein, we

conditionally grant relief.1


                                           BACKGROUND


       The parties married in May 2005, and they share five minor children and two adult

children. Father moved out of the marital home in Olton in 2023 due to a strained

relationship with Mother and his affair with a woman named Lisa. Father has a child with

Lisa, but the relationship ended before the birth of that child.                 Mother and Father

reconciled but he did not return to the marital home. Father and Lisa co-parent their child.

Mother and Father separated again in April 2025, and Father filed for divorce on

September 18, 2025.


       By his divorce petition, Father sought extraordinary relief requesting he be named

sole managing conservator of all five minor children to the exclusion of any possession

or access by Mother due to her pattern of alleged neglect of the children. Father and his

adult daughter provided affidavits expressing concern over the health and safety of the

minor children while in Mother’s care. The adult daughter recommended the minor

children live with Father.


       Mother filed a counter-petition for divorce on September 29, 2025. She sought

sole managing conservatorship based on Father’s history of family violence during the

two years preceding the filing of divorce proceedings. During the pendency of the divorce

proceedings, the minor children have been living with Father in Plainview.




       1 This Court requested a response from Father but none was filed.   See TEX. R. APP. P. 52.8(b)(1).
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        Two adult children, Father, Mother, and Lisa testified at a hearing on Father’s

request for temporary orders.2 The adult children and Father complained that Mother

was not cleaning the home and was not consistently present to care for some of the

younger siblings. They testified to safety concerns, neglect of younger siblings, food

insecurity, and difficulty paying bills. The adult children testified to Father’s past drinking

problem and incidents of domestic violence against Mother and them within the two years

preceding the underlying proceedings.               Father acknowledged assaulting Mother on

several occasions. The gist of Lisa’s testimony was that since Father stopped drinking

he was a safe parent who was providing financially for his children.


        The adult daughter testified Father would get violent when he drank. She revealed

an incident in which Father acted inappropriately toward her while Mother was lying on

the ground intoxicated. Although she said he was now sober, she could not confirm his

sobriety date.


        The daughter claimed there was insufficient food in the home to prepare meals.

According to the daughter, Mother would go to a friend’s house in Lubbock and take the

youngest siblings with her and not return until very late at night, leaving her other siblings

to take care of themselves.


        The adult son admitted his father had punched him in the face a year earlier while

Father was drunk. The son also recounted an incident where Father almost struck him

with his truck but could not offer a timeline or say if it occurred in the last two years.




        2 Lisa testified she was assaulted by Father, but it is not relevant under section 153.004(b) as she

was not his spouse.
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      The son testified he was home when his younger sister cut her finger and required

medical attention. He called Mother but she did not answer, and he was concerned she

chose not to answer his call. He then called Father and drove his sister to the emergency

room where Father met them. But when the son was asked about any present concerns

with Mother, he answered, “I would say no.” Yet a few questions later, he answered “yes”

when asked if he had safety concerns for his siblings.


      Father is employed at Plainview’s Wal-Mart distribution center. He testified his life

has changed “a hundred percent” during the last year because he found God and faith.

His relationships have improved as well as his employment. He further testified when he

and Mother separated, he noticed issues with the cleanliness of the home. His offers to

help were rejected by Mother. He also enlisted his mother and sister to help clean which

displeased Mother. He took the children to the doctor for required vaccines and to

address lice and tick bites. He also described the incident in which his daughter cut her

finger and was taken to the emergency room while Mother was absent from the home.


      During cross-examination, Father acknowledged hitting Mother several times in

the past when he was intoxicated and struck her shortly before they separated in April

2025 because he discovered she was having an affair. He admitted getting a gun and

threatening to kill himself which he described as “dumb.” Father estimated he stopped

drinking in March 2025 but could not recall the exact date.


      According to text messages between Father and Mother which were admitted over

objection, he was helping her financially with utilities and other financial obligations.

According to Father, she had access to a joint account, and he also provided funds via

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CashApp.3 Father was also providing financial support to his adult children for gas and

food.


        Mother testified that even after Father stopped drinking, he assaulted her by

slapping her. She was unable to call the police because he took her phone. The next

day, she went to her parents’ home, called the police, and made a report. She did not,

however, pursue charges against him.


        Mother further testified Father assaulted her numerous times during their

relationship. She described an incident in their front yard when he punched her while he

was intoxicated. She suffered black eyes and a busted lip. He stopped when she yelled

for her children. They also had an altercation which resulted in her breaking her ankle

when he grabbed and tripped her. After they separated, he threatened to kill himself with

a gun because she no longer wanted to be with him and also pointed the gun at her.


        Mother complained that Father was controlling and would not let her work. Father

reasoned they had too many children for her to work, and she conceded as much. She

testified her children got lice at school and the tick bites were from their dog. She admitted

she frequently visited a friend in Lubbock, especially on the weekends, and would take

her young children with her and leave her other children at home. She attributed any

negative testimony from her adult children to Father’s influence and manipulation. She

disputed the home was dirty and they did not have sufficient food.




         3 During cross-examination, Father testified if payments on utilities were late, it was not his fault.

He testified he supplied the money, but Mother was responsible for making the payments. Mother testified
there was no joint account, but bank statements included her name.
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       Mother testified it would be in her children’s best interests to live with her in Olton.

They have missed extracurricular activities while living with Father in Plainview and she

has had very little communication with them. She is currently employed and has applied

to be a substitute teacher.


       At the conclusion of the testimony, the trial court kept the status quo until the minor

children over age 12 could be interviewed. The trial court later entered a temporary order

appointing the parties joint managing conservators of the five minor children with Father

having the exclusive right to designate the children’s primary residence within Lamb

County.


       Mother maintains the trial court abused its discretion in appointing Father joint

managing conservator in the face of uncontroverted testimony of domestic violence

perpetrated by him. We agree.


                                   STANDARD OF REVIEW


       Mandamus is an extraordinary remedy granted only when a relator can show (1)

the trial court clearly abused its discretion and (2) there is no adequate remedy by appeal.

In re H.E.B. Grocery Co., L.P., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding);

Walker v. Packer, 827 S.W.2d 833, 840–44 (Tex. 1992) (orig. proceeding). To establish

an abuse of discretion, the complaining party must demonstrate the trial court acted

unreasonably, arbitrarily, or without reference to any guiding rules or principles. Downer

v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). While this standard

usually applies to the trial court’s failure to perform a ministerial duty, an incorrect

construction of the law or a misapplication of the law to undisputed facts is an abuse of

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discretion which can be addressed by mandamus. Walker, 827 S.W.2d at 840. The

relator bears the burden to show entitlement to mandamus relief. Id. at 837.


                                      APPLICABLE LAW


       Section 153.004(a) of the Texas Family Code provides as follows:


       [i]n determining whether to appoint a party as a sole or joint managing
       conservator, the court shall consider evidence of the intentional use of
       abusive physical force, or evidence of sexual abuse, by a party directed
       against the party’s spouse, a parent of the child, or any person younger than
       18 years of age committed within a two-year period preceding the filing of
       the suit or during the pendency of the suit.


       Paragraph (b) provides that a court may not appoint joint managing conservators

if credible evidence is presented of a history or pattern of past or present child neglect or

abuse against the other parent, a spouse, or a child. § 153.004(b). It further provides a

rebuttable presumption that appointment of a parent as sole managing conservator with

the exclusive right to determine the primary residence is not in the child’s best interest if

credible evidence is presented of a history or pattern of past or present child neglect or

abuse against the other parent, a spouse, or a child. Id. Paragraph (d) restricts a parent’s

access to a child for whom it is shown by a preponderance of the evidence there is a

history or pattern of committing family violence during the two years preceding the date

of filing suit or during the pendency of the suit.


                                          ANALYSIS


       We begin with whether Mother has established she has no adequate remedy by

appeal. The trial court’s issuance of temporary orders is not subject to interlocutory

appeal making mandamus an appropriate remedy. In re Telesford, No. 07-23-00167-CV,
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2023 Tex. App. LEXIS 4201, at *5 (Tex. App.—Amarillo June 14, 2023, orig. proceeding)

(citing Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991)). Thus, she has satisfied the

second prong for seeking mandamus relief.


       A trial court has broad discretion to decide the best interest of children in matters

of custody, possession, and visitation. In re Marriage of Harrison, 557 S.W.3d 99, 120

(Tex. App.—Houston [14th Dist.] 2018, pet. denied). Determining whether the trial court

abused its discretion in the underlying proceeding by appointing Mother and Father joint

managing conservators is complicated.


       Mother relies on the statute’s presumption that credible evidence of a party

committing family violence prohibits that party from being named a joint managing

conservator. She further relies on the statute’s rebuttable presumption that such a party

cannot be named sole managing conservator with the right to determine domicile. She

also references In re Marriage of Stein, 153 S.W.3d 485 (Tex. App.—Amarillo 2004, no

pet.), which stands for the proposition that a trial court abuses its discretion when it

appoints joint managing conservators in the face of uncontroverted evidence of family

violence. She argues that because the evidence is undisputed that Father committed

family violence within the two-year period preceding the filing of divorce proceedings, the

trial court was prohibited from appointing them joint managing conservators. She posits

that because joint managing conservatorship was improper, the trial court should have

appointed her sole managing conservator to the exclusion of Father because he is the

offending parent.




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       We agree with Mother that the trial court abused its discretion because section

154.003(b) prohibited the appointment of Father as a joint managing conservator given

his history or pattern of past or present family violence. Under her analysis, she requests

this Court to render judgment naming her sole managing conservator as the only viable

option. In a mandamus proceeding of this nature, however, this Court generally reviews

the propriety of the challenged order and whether it should be vacated.


       The limited mandamus record includes testimony from the parties’ adult children

indicating possible child neglect by Mother. Thus, we defer to the trial court to determine

conservatorship issues when faced with the possibility of two offending parents. We

sustain Mother’s sole issue.


                                       CONCLUSION


       We conditionally grant mandamus relief. We trust the Honorable Scott Say will

vacate his temporary order appointing Father joint managing conservator. The writ will

issue only if he fails to do so.




                                                        Alex Yarbrough
                                                            Justice




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