text:
    In the Interest of T.M.J. and X.K.J.
    No. 09-08-00310-CV.
    Court of Appeals of Texas, Beaumont.
    Submitted May 5, 2010.
    Decided June 24, 2010.

      Anita Provo, Beaumont, for appellant.
    Tom Maness, Crim. Dist. Atty., Eric S.A. Houghton, Asst. Crim. Dist. Atty., Beaumont, Gerry Williams, TDFPS General Counsel, Trevor A. Woodruff, TDFPS, Appellate Atty., Austin, for appellee.
    Before McKEITHEN, C.J., KREGER and HORTON, JJ.
   OPINION

STEVE McKEITHEN, Chief Justice.

C.L.H. appeals the termination of her parental rights to the minor children T.M.J. and X.K.J. C.L.H. raises two issues for our consideration. In her first issue, C.L.H. argues that the evidence was legally and factually insufficient to support the jury’s finding that termination was in the best interest of the children. In her second issue, C.L.H. asserts that the jury charge was overly broad, thereby violating her “constitutional rights to due process and the Fourteenth Amendment.” We affirm the trial court’s judgment.

The Evidence

C.L.H. testified that Child Protective Services (“CPS”) became involved with T.M.J. and X.K.J. in November of 2005, when T.M.J. was found outside while C.L.H. was asleep inside her apartment. According to C.L.H., the door was locked, and T.M.J. “woke up and unlocked the door herself.” C.L.H. testified that CPS removed the children from her home on December 15, 2006. C.L.H. testified that on that date, when she arrived home, the CPS caseworkers were standing outside, and she saw her husband, R.H., “yelling upstairs to one of the neighbors[.]” C.L.H. found out that her neighbor “had called the police on my children because I was inside asleep. The children were outside playing, and I was nowhere to be found, apparently.”

According to C.L.H., when CPS removed the children, she, her husband, and the children were living in a one-bedroom apartment. C.L.H. and her husband slept on one side of the room in a full-size bed, and T.M.J. and X.K.J. shared a twin-size bed. C.L.H. denied having sex with her husband while the children were in the room. C.L.H. testified that on one occasion, her husband came after her with a knife, but she did not characterize their relationship as abusive. C.L.H. opined that her husband has an anger problem “[w]hen he is upset.”

C.L.H. testified that after CPS took the children, the trial court instructed her to work with CPS and follow a service plan, and she was asked to complete parenting classes, attend counseling, attend Alcoholics Anonymous meetings, and visit with the children twice per month. C.L.H. explained that she has not seen T.M.J. and X.K.J. for approximately a year because her husband was coming to the visits, and C.L.H. was told that if her husband continued to attend, the visits would be suspended based upon the recommendations of C.L.H.’s counselor and psychiatrist. C.L.H. testified that she continued to allow her husband to attend the visits; her husband caused a disturbance at some of the visits; and her visits with the children were ultimately suspended.

C.L.H. testified that she was unable to provide CPS with names of relatives who could care for the children because her family members had health issues and legal problems. C.L.H. explained that she began seeing a counselor, but her counsel- or ultimately suspended her sessions because “I was not writing as often as I should to my children.” C.L.H. testified that she did not attend any Alcoholics Anonymous meetings, but she attended some domestic violence support group meetings. C.L.H. admitted she told her counselor that if she were CPS, she would not give her kids back to herself “[b]e-cause at that time I could not provide a stable environment.” However, C.L.H. testified that “since that last counseling session!,] I am now at a stable job, I have [a] stable residence, and I feel I can offer more to my kids than I could before.” C.L.H. testified that she completed her parenting class, but that she did not maintain written contact with her children or follow through with her twelve-step program. In addition, C.L.H. testified that although CPS had instructed her and her husband to go to marriage counseling, they did not do so due to conflicting work schedules. According to C.L.H., she successfully completed only two of the thirteen tasks in the family service plan, although she felt that the tasks she was asked to do were reasonable.

C.L.H. testified that she has three children, and the oldest child, H.P., lives with her biological father. H.P. lived with C.L.H. for about one year, and H.P. went to live with her father after CPS became involved and removed her from C.L.H.’s home. C.L.H. testified that although she is permitted to have supervised visitation with H.P., she has not seen H.P. “in maybe a couple of years because I haven’t had transportation.... And also I have to work in order to take care of household bills.”

C.L.H. testified that she had engaged in a sexual relationship with her current stepfather. In addition, C.L.H. testified that on one occasion, she accepted money from her stepfather for engaging in sexual activity with him. C.L.H. explained that she had considered divorcing her husband, but although she did not feel that her relationship with her husband created a good environment for her children, she no longer intends to seek a divorce. C.L.H. testified that she would “just like to see [the children] back home with me because I feel that would make me happier.” When C.L.H. was asked whether she felt that it was in the children’s best interest to be in the home with her and her husband, C.L.H. testified, “[sjomewhat.” After the State and the guardian ad litem rested, C.L.H. returned to the stand and testified, “I’d still like to see my kids home and happy.” C.L.H. explained that during a recess in the trial earlier that day, she decided to divorce R.H. When asked whether she agreed that termination was in her children’s best interest, C.L.H. responded, “[s]ort of.”

Officer Donald James English, Jr. of the Beaumont Police Department testified that on June 4, 2006, he responded to C.L.H.’s complaint about being threatened with a knife by R.H. during an argument. Officer English explained that he arrested R.H. “due to future threat of family violence,” and R.H. was also charged with aggravated assault with a deadly weapon and interference with a 911 call.

Pamela Morris of CPS testified that she investigated the case concerning C.L.H.’s oldest child, H.P. Morris explained that she received referrals from five different individuals concerning H.P., and she merged all of the referrals into one investigation. Morris testified that she was “investigating allegations of sexual abuse, neglectful supervisión!,] and physical neglect.” Morris testified that she ruled out those allegations, but she testified that “although I did not find any abuse, there was a high probability of risk. And at that time it was felt due to [C.L.H.] being a new, inexperienced mom, there were just some concerns.” Morris explained that she referred the case for family safety services, which involves someone from CPS going into the home and working with the parent. According to Moms, she received additional referrals concerning possible physical neglect and neglectful supervision of H.P. the following year, and Morris found that physical neglect and neglectful supervision existed. Morris testified that C.L.H. admitted to using marijuana, as well as to having multiple sexual partners. In addition, Morris explained that “[t]he home environment was a hazard. There was old food in the kitchen area, there was old food with maggots on the counter. There were numerous used condoms on the floor in the bedroom, just the whole house was unkempt. In the bathroom were towels that had feces smeared on them.” At the conclusion of the investigation, H.P. was living with her paternal grandmother and her father pursuant to a voluntary placement. Morris explained that she has not been involved with the case concerning T.M.J. and X.K.J.

Michelle Oldbury, an investigator with CPS, testified that she investigated referrals involving T.M.J. and X.K.J. According to Oldbury, after the initial referral in December of 2006, her investigation revealed that C.L.H. “had a nighttime job and she was sleeping during the day. The children were being left unsupervised during the day to kind of [fend] for themselves. They got out of the home unsupervised in the apartment complex on several different occasions.” Oldbury explained that a few days later, CPS received a referral concerning similar allegations of neglectful supervision, and CPS merged the referrals into one investigation. According to Oldbury, on one occasion when the children were outside unsupervised, T.M.J. had on only a t-shirt and no underclothes or pants. Oldbury testified that one of the referrals indicated that the three and four-year-old children were unsupervised at three o’clock a.m. On one of the occasions when the children were found outside, law enforcement officers had to awaken C.L.H., and when the officers told C.L.H. that the children were outside unattended, she said “okay” and went back to sleep.

Oldbury explained that she removed T.M.J. and X.K.J. in December of 2006. On the day Oldbury removed the children, C.L.H. was not at home when Oldbury arrived, but C.L.H.’s husband, R.H., was with X.K.J. at the apartment. Oldbury testified that she waited for C.L.H. on the road by the car. Oldbury explained that she saw R.H.

walk out of the apartment complex, leave the door open. I think he had garbage in his hand. He went to the back of the building and he came back around a couple of minutes later.... [T]hen he saw a friend upstairs and he walked up the stairs and started engaging in a conversation with him, all the while the door was left open in the apartment complex and I was observing the front door and I am assuming that [X.K.J.] stayed asleep on the couch, but never went and checked on him. And then [R.H.] came down the stairs after that and another woman walked across the apartment complex and he started engaging in ... [a] verbal altercation with her using foul language, and I called the police at that point to come out.

Oldbury explained that the apartment was small, so the couch on which X.K.J. was sleeping was “right there by the door[.]” C.L.H. eventually arrived with T.M.J., and Oldbury testified that C.L.H. admitted that the children were left unattended because she worked nights and did not have anyone to watch the children during the day while she slept.

According to Oldbury, C.L.H. violated the safety plan that CPS had previously put into place by being alone with T.M.J. without supervision. Oldbury testified that she decided to remove the children based upon C.L.H.’s extensive history with CPS, R.H.’s lack of protectiveness toward the children, the children being left unattended, and C.L.H.’s inability to find a voluntary placement for the children. Old-bury testified that she also considered C.L.H.’s history with CPS concerning H.P. According to Oldbury, there had been previous allegations that the children were eating from garbage cans and that C.L.H. was having sex in front of them, but Old-bury was not involved with investigating those allegations.

Jimmy LaComb, a licensed professional counselor, testified that he counseled C.L.H. individually pursuant to a contract with CPS. LaComb testified that C.L.H. discussed R.H.’s anger problem during counseling, and that LaComb advised her to check into a women and children’s shelter, but C.L.H. did not do so. C.L.H. told LaComb that her relationship with R.H. had been physically abusive in the past, but that the abuse was “mainly verbal now.” According to LaComb, when he was counseling C.L.H., C.L.H. was not having any contact with the children, yet LaComb had told C.L.H. to maintain contact as much as she could by writing letters. LaComb testified that C.L.H. always had an excuse for not writing to the children. LaComb stated that C.L.H. expressed little concern about the children, and LaComb felt that C.L.H.’s priorities were her work and her husband. LaComb explained that he warned C.L.H. that he would terminate their counseling sessions if she did not write to her children, and that he eventually terminated her sessions when she failed to do so. LaComb explained that at the request of the CPS caseworker, he reopened C.L.H.’s case and began counseling C.L.H. again in October of 2007. LaComb explained that he felt that C.L.H. had not made any efforts to extricate herself from her abusive relationship with R.H. LaComb opined that R.H. was not a safe person to have around children. LaComb explained that he believed C.L.H. was in an abusive cycle with her husband, and that she lacked interest in the children.

LaComb stated that C.L.H. also told him she had engaged in sexual relations with her current stepfather twenty to thirty times, and that she accepted money from him for sex on one occasion. La-Comb also testified that C.L.H. did not complete the assigned parenting classes, and that C.L.H. had lied to her caseworker about attending a domestic violence support group. According to LaComb, he decided to terminate C.L.H.’s sessions again after C.L.H. told him that if she were a judge, she would not return the children to herself. LaComb explained that he believed he did everything he could to help C.L.H., but C.L.H. lacked the motivation to help herself or the children. When asked whether it is in the best interest of the children to live with C.L.H., LaComb answered, “[n]ot at all.”

Laura Rennick, the manager of the apartment complex where C.L.H. lived with the children, testified that she observed the children unattended at the apartment complex approximately twice per week during the ten months that C.L.H. lived there. Rennick explained that she also received reports two to three times per week that the children were outside unattended. Rennick testified that on one occasion, T.M.J. was naked except for a t-shirt. Rennick described the children as “[vjery dirty, snotty noses, the little boy’s diapers would be so full of urine that it [sic] would be hanging on his legs.” According to Rennick, the carpet in C.L.H.’s apartment was stained, the apartment smelled bad, diapers were lying around, food was left out, and the unit was not well maintained. Rennick also testified that the power company turned off C.L.H.’s electricity at least three times. Rennick explained that each apartment has a bolt lock on the door, as well as a chain that is high enough that a child could not reach it. In addition, Rennick opined that R.H. had an anger problem.

Danni Craig, associate president of the Church of Jesus Christ of Latter Day Saints, testified that C.L.H. is a member of the church. According to Craig, the church assisted C.L.H. with rent and food. Craig testified that the president of the church recommended marriage counseling, but C.L.H. did not follow the president’s recommendation. Craig opined that C.L.H. loves her children and tries to be a good parent, but needs to learn some parenting skills. In addition, Craig opined that “until [C.L.H.] gets the education she needs and learns what she needs to that the children are safer [in foster care].”

Debbie Dronett Lee, a supervisor for CPS’s foster care unit, testified that at the fifth-month permanency conference, CPS changed its plan from family reunification to termination due to “[l]ack of participation in services by the parents.” Lee explained that C.L.H. was unable to provide the names of any relatives who could adopt the children. CPS created a family service plan, pursuant to which C.L.H. was to visit the children, maintain contact with the children by writing to them, attend individual counseling sessions, attend a twelve-step program, obtain a psychological evaluation and follow all of the recommendations, assess community resources for domestic violence, and obtain marriage counseling; however, she failed to complete these tasks.

Lee opined that C.L.H. has not made the necessary efforts to show that she can provide a safe environment for the children. In addition, Lee testified that CPS has given C.L.H. multiple chances, and has “provided all the services that are necessary if a person has a commitment to getting [her] children back.” According to Lee, there are potential adoptive parents for the children, and Lee opined that termination of C.L.H.’s parental rights would be in the children’s best interest. Lee testified that “permanency is what the children need, what they deserve at this age. And the only way to achieve that is through adoption and that requires termination.”

Kim Williams, a supervisor with Court Appointed Special Advocates (“CASA”), testified that CASA’s role is to perform an independent investigation and make a recommendation to the trial court as to what is in the best interest of the children. Williams testified that although T.M.J. initially acted out sexually and X.K. J. did not talk, the children are thriving in their current placement. Williams opined that T.M.J.’s behaviors indicate that “[s]he has either been exposed [in] some form or fashion to sexual abuse or seen some sort of sex acts.” Williams explained that CASA recommended termination of C.L.H.’s parental rights and adoption.

Issue One .

In her first issue, C.L.H. argues that the evidence is legally and factually insufficient to support the jury’s finding that termination of the parent-child relationship is in the best interest of the children. Because involuntary termination of parental rights implicates fundamental constitutional rights and is both severe and permanent, the burden of proof at trial is clear and convincing evidence. Tex. Fam. Code Ann. § 161.001 (Vernon Supp. 2009); Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985). “ ‘Clear and convincing evidence’ means the measure or degree of proof that will produce in the mind of the trier of fact a firm belief or conviction as to the truth of the allegations sought to be established.” Tex. Fam.Code Ann. § 101.007 (Vernon 2008). Before parental rights may be involuntarily terminated, the trier of fact must find by clear and convincing evidence (1) that the parent committed one of the statutory grounds found in section 161.001(1) of the Family Code, and (2) that termination is in the children’s best interest. Tex. Fam.Code Ann. § 161.001; see also Tex. Dep’t of Human Sens. v. Boyd, 727 S.W.2d 531, 533 (Tex.1987).

In a legal sufficiency review, we consider all of the evidence in the light most favorable to the termination finding to determine whether a reasonable trier of fact could have formed a firm belief or conviction about the truth of the matter on which CPS bears the burden of proof. In re J.L., 163 S.W.3d 79, 84-85 (Tex.2005). We assume the factfinder resolved any disputed facts in favor of its finding, if a reasonable factfinder could do so, and disregarded all evidence that a reasonable factfinder could have disbelieved. In re J.F.C., 96 S.W.3d 256, 266 (Tex.2002). In a factual sufficiency review, we give “due consideration” to any evidence the factfin-der could reasonably have found to be clear and convincing. Id. (citing In re C.H., 89 S.W.3d 17, 25 (Tex.2002)). We consider the disputed evidence and determine whether a reasonable factfinder could have resolved that evidence in favor of the finding. Id. The evidence is factually insufficient if the disputed evidence is so significant that a factfinder could not have reasonably formed a firm belief or conviction. Id.

In determining whether termination is in a child’s best interest, the Supreme Court has set forth a non-exhaustive list of several factors: (1) the desires of the child; (2) the emotional and physical needs of the child now and in the future; (3) the emotional and physical danger to the child now and in the future; (4) the parental abilities of the individuals seeking custody; (5) the programs available to assist these individuals to promote the best interest of the child; (6) the plans for the child by these individuals or by the agency seeking custody; (7) the stability of the home or proposed placement; (8) the acts or omissions of the parent which may indicate that the existing parent-child relationship is not a proper one; and (9) any excuse for the acts or omissions of the parent. Holley v. Adams, 544 S.W.2d 367, 372 (Tex.1976). The party seeking termination need not prove that each Holley factor favors termination. In re C.H., 89 S.W.3d at 27. The same evidence of acts or omissions used under section 161.001(1) may be probative in determining the best interest of the child. In re A.A.A., 265 S.W.3d 507, 516 (Tex.App.-Houston [1st Dist.] 2008, pet. denied).

The factfinder heard evidence that T.M.J. and X.K.J. were outside unsupervised at C.L.H.’s apartment complex on multiple occasions, sometimes in the middle of the night and partially nude. The factfinder also heard evidence that the children were very dirty, and that X.K.J.’s diapers were heavily soiled. The record also indicates that of thirteen requirements contained in the family service plan created by CPS, C.L.H. completed only two. In addition, the record contains evidence that C.L.H.’s husband, R.H., was verbally and sometimes physically abusive. The record also contains evidence that C.L.H.’s counselor believed C.L.H. expressed little concern about the children, lacked interest in them, lacked motivation to help herself or the children, and that at one time, C.L.H. expressed the belief that the children should not be returned to her. The record also contains evidence that the children are thriving in their current placement, and that a potential adoptive family for them exists. Furthermore, the record contained evidence that C.L.H. had not seen T.M.J. and X.K.J. for approximately one year before trial.

C.L.H. testified that she now has a stable job and a stable residence, and that she can now offer more to her children. C.L.H. also testified that she would like to have the children back home with her. In addition, C.L.H. expressed the intention to divorce R.H. The record also contained evidence that C.L.H. loves her children and tries to be a good parent.

On this record, applying the appropriate standards of review, including the Holley factors, we hold that the evidence was legally and factually sufficient for a reasonable factfinder to form a firm belief or conviction that it was in the best interest of the children for C.L.H.’s parental rights to be terminated. Accordingly, we overrule issue one.

Issue Two

In her second issue, C.L.H. argues that the jury charge was overly broad, thereby violating her “constitutional rights to due process and the Fourteenth Amendment.” At the charge conference, C.L.H.’s counsel stated that he had no objections to the charge. Therefore, C.L.H. waived her constitutional complaint concerning the jury charge by failing to raise it in the trial court. See In re B.L.D., 113 S.W.3d 340, 351, 354-55 (Tex.2003); see also Tex.R.App. P. 33.1(a). Accordingly, we overrule issue two and affirm the trial court’s judgment.

AFFIRMED.

      . C.L.H.’s husband is not the biological father of T.M.J. or X.K.J. The children’s biological fathers no longer have parental rights to T.M.J. and X.K.J.

      . C.L.H.'s parental rights to H.P. are not at issue in this proceeding.

      . CPS argues we are precluded from addressing C.L.H.'s issues because she did not include them in her statement of points on appeal. See Tex. Fam.Code Ann. § 263.405(i) (Vernon 2008). However, the Texas Supreme Court has "held that section 263.405(i) is unconstitutional 'when it precludes a parent from raising a meritorious complaint about the sufficiency of the evidence supporting the termination order.’ ” In re G.K., No. 09-08-00506-CV, 2009 WL 2616926, at *2 (Tex. App.-Beaumont Aug. 27, 2009, no pet.) (mem. op.) (quoting In re J.O.A., 283 S.W.3d 336, 339 (Tex.2009)). Therefore, we will consider C.L.H.'s issue concerning the sufficiency of the evidence regarding best interest. In addition, with respect to C.L.H.'s constitutional issue concerning the broad form jury charge, C.L.H. included in her statement of "possible points of error for appellate review” contentions that the charge did not support the termination order. Liberally construing C.L.H.'s points, as we must, we conclude the points are adequate to preserve her jury charge complaint. See In re B.L.R.P., 269 S.W.3d 707, 710 (Tex.App.-Amarillo 2008, no pet.).


source: Caselaw Access Project

author: ANNE GARDNER, Justice.

license: Public Domain

text:
    In re Franklin SALAZAR; Jo Ann Patton; Walter Virden, III; Rod Barber; Chad Bates; Jack Leo Iker; Corporation for the Episcopal Diocese of Fort Worth; and The Episcopal Diocese of Fort Worth.
    No. 2-09-405-CV.
    Court of Appeals of Texas, Fort Worth.
    June 25, 2010.

      Scott Brister, Andrews Kurth, LLP, Austin, TX, Kendall M. Gray, Andrews Kurth, LLP, Houston, TX, J. Shelby Sharpe, Sharpe Tillman Melton, Fort Worth, TX, for Relators.
    Kathleen Wells, Taylor Olson Adkins Sralla & Elam LLP, Fort Worth, TX, Jonathan D.F. Nelson, Frank Gilstrap, Hill Gilstrap PC, Arlington, TX, for Real Parties in Interest.
    PANEL: DAUPHINOT, GARDNER, and MEIER, JJ.
   OPINION

ANNE GARDNER, Justice.

I. Introduction

Relators Franklin Salazar, Jo Ann Patton, Walter Virden, III, Rod Barber, Chad Bates, Jack Leo Iker, Corporation for the Episcopal Diocese of Fort Worth (the Corporation), and The Episcopal Diocese of Fort Worth (the Fort Worth Diocese), Defendants in the underlying cause, have filed a petition for writ of mandamus complaining of the September 16, 2009 order entered by Respondent, Judge John P. Chupp of the 141st District Court, which granted in part and denied in part Rela-tors’ motion to show authority under rule 12 of the rules of civil procedure. See Tex.R. Civ. P. 12. Relators ask this court to order the trial court to grant complete relief on their motion to show authority, bar attorneys Jonathan Nelson and Kathleen Wells from representing the Corporation and the Fort Worth Diocese in the underlying suit, and “dismiss the underlying case insofar as it is purportedly brought on behalf of the Corporation or the [Fort Worth] Diocese.” We conditionally grant Relators’ petition for writ of mandamus and vacate our November 16, 2009 order staying further proceedings in the trial court.

II. Background

The underlying suit involves a dispute over control of the property belonging to the Fort Worth Diocese that is held by the Corporation. The suit was brought by The Episcopal Church (TEC), also naming as plaintiffs the Fort Worth Diocese and the Corporation, against Relators as Defendants. TEC describes itself as “a member of the Anglican Communion, a worldwide fellowship of autonomous regional churches known as ‘Provinces,’ each [of which] forms its own constituent units [] within its own geographical territory.”

The Fort Worth Diocese, a Texas unincorporated association, was formed in 1983 and thereafter entered into membership with TEC. The Corporation is a Texas non-profit corporation that holds, manages, and administers all property and funds acquired by gift, will, or otherwise for the use and benefit of the Fort Worth Diocese. It is undisputed that Relator Iker was not appointed by TEC but was duly elected by delegates at a regular meeting of the Fort Worth Diocesan Convention as Bishop of the Fort Worth Diocese, pursuant to the Constitution of the Fort Worth Diocese, and ordained in 1993. Upon his installation, Bishop Iker automatically became Chairman of the Board of Trustees of the Corporation. The other individual Rela-tors were likewise not appointed but were duly elected and received their offices as Trustees of the Corporation at a Fort Worth Diocesan Convention.

In 2006, based on actions allowed by TEC that many believed violated the traditional and foundational purposes of the Church, Relators filed Amended and Restated Articles of Incorporation, allegedly in accordance with Texas law, removing any reference to TEC in the Corporation’s affairs. At the two immediately following Annual Conventions of the Fort Worth Diocese in 2007 and 2008, a majority of the delegates to those Diocesan Conventions voted to amend the Fort Worth Diocese’s Constitution and to withdraw the Fort Worth Diocese from membership in TEC. Then, on November 15, 2008, the Convention of the Fort Worth Diocese voted to enter into membership, and entered into membership, with the Anglican Province of the Southern Cone, a different province of the Anglican Communion.

On November 20, 2008, a disciplinary review committee of TEC announced that Bishop Iker had “abandoned the communion” of the Church. The Presiding Bishop of TEC declared that Bishop Iker was removed from the Ordained Ministry of TEC and thereby “ceased to be a bishop” of TEC or the Fort Worth Diocese. In February 2009, the Presiding Bishop of TEC convened a “special meeting” of the Fort Worth Diocesan Convention, consisting of the minority that had not prevailed at the two previous annual conventions, and elected Edwin Gulick as “Provisional Bishop” of the Fort Worth Diocese and Chairman of the Board of Trustees for the Corporation. The Convention further voted to reverse the constitutional amendments adopted at the two previous Conventions and declared all relevant diocesan offices of the Fort Worth Diocese “vacant.” Bishop Gulick then appointed replacements for all offices, including the Trustees of the Corporation.

Bishop Gulick and the newly appointed Trustees (the Gulick Group) retained Jonathan Nelson and Kathleen Wells as attorneys purportedly to represent the Fort Worth Diocese and Corporation. Those attorneys, joined by attorneys for TEC, then filed the underlying suit in the names of the Fort Worth Diocese and the Corporation, but admittedly only on behalf of the Gulick Group, against Bishop Iker and the elected Trustees who were purportedly removed and replaced (the Iker Group), alleging that Bishop Iker is no longer a bishop of the Church and that the five named Defendant Trustees of the Corporation have left the Church. By the suit, TEC and the other two named plaintiffs seek control of the church property, including the name and seal of the Fort Worth Diocese, and a declaratory judgment as to the true identity of the current Bishop and Trustees of the Corporation. In addition to Bishop Iker and those five named Defendant Trustees, individually, the suit also names as a Defendant “The Anglican Province of the Southern Cone’s ‘Diocese of Fort Worth’ holding itself out as ‘The Episcopal Diocese of Fort Worth.’ ”

Relators answered and filed a third-party petition against the individual members of the standing committee appointed by Bishop Gulick and a plea in intervention by the Corporation. In response to a motion for summary judgment filed by the plaintiffs, Relators filed a motion for continuance and their rule 12 motion to require Mr. Nelson and Ms. Wells to show their authority to prosecute the suit on behalf of the Fort Worth Diocese and the Corporation. It is the trial court’s order on the rule 12 motion from which Relators seek relief.

III. Standard of Review

Mandamus relief is proper only to correct a clear abuse of discretion when there is no adequate remedy by appeal. In re Columbia Med. Ctr. of Las Colinas, 290 S.W.3d 204, 207 (Tex.2009) (orig.proceeding). A trial court abuses its discretion if it incorrectly interprets or improperly applies the law. In re Dep’t of Family & Protective Servs., 273 S.W.3d 637, 642-43 (Tex.2009) (orig.proceeding); Walker v. Packer, 827 S.W.2d 833, 840 (Tex.1992).

Absent extraordinary circumstances, mandamus will not issue unless the relator lacks an adequate remedy by appeal. In re Van Waters & Rogers, Inc., 145 S.W.3d 203, 210-11 (Tex.2004) (citing Walker, 827 S.W.2d at 839). Whether a clear abuse of discretion can be adequately remedied by appeal depends on a careful analysis of costs and benefits of interlocutory review. In re McAllen Med. Ctr., Inc., 275 S.W.3d 458, 464 (Tex.2008) (orig.proceeding). As this balance de-pends heavily on the circumstances, it must be guided by analysis of principles rather than simple rules that treat cases as categories. Id. An appellate court should consider whether mandamus will allow the court to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments and whether mandamus will spare litigants and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. In re Team Rocket, L.P., 256 S.W.3d 257, 262 (Tex.2008) (orig.proceeding).

IV. The Rule 12 Order

After two hearings at which the trial court received affidavits, testimony, documents, and arguments of the parties, the trial court entered an order titled “Order Granting Rule 12 Motion” in which the trial court found that Mr. Nelson and Ms. Wells “have not discharged their burden of proof that they were hired by individuals holding positions at the time of [their] hiring within The [Fort Worth Diocese] and [The Corporation] that are associated with Bishop Iker” and barred those attorneys from appearing in the trial court as attorneys “for the [Fort Worth Diocese] and [The Corporation] that is associated with Bishop Iker.” However, the order of the trial court did not bar Mr. Nelson and Ms. Wells from appearing in the case on behalf of the Fort Worth Diocese and Corporation generally, nor did it strike the pleadings on behalf of those entities after an authorized person failed to appear.

Thus, Relators interpret the trial court’s ruling as a partial denial of their requested relief and ask us to order the trial court to “grant their motion to show authority and to dismiss the underlying case insofar as it is purportedly brought on behalf of the Corporation or the [Fort Worth] Diocese.”

In relevant part, rule 12 states:

A party in a suit or proceeding pending in a court of this state may, by sworn written motion stating that he believes the suit, or proceeding is being prosecuted or defended without authority, cause the attorney to be cited to appear before the court and show his authority to act.... At the hearing on the motion, the burden of proof shall be upon the challenged attorney to show sufficient authority to prosecute or defend the suit on behalf of the other party. Upon his failure to show such authority, the court shall refuse to permit the attorney to appear in the cause, and shall strike the pleadings if no person who is authorized to prosecute or defend appears.

Tex.R. Civ. P. 12 (emphasis added).

The emphasized language states that once the trial court finds the challenged attorney has not met her burden of proof, the trial court “shall” take two additional steps: (1) bar the challenged attorney from appearing in the case and (2) strike the pleadings if an authorized person does not appear. Id. The term “shall” as used in a statute is generally recognized as “mandatory,” creating a duty or obligation. Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex.2001) (citing Tex. Gov’t Code Ann. § 311.016(2) (Vernon 2005)). Because we apply the same rules of construction to the rules of civil procedure as we apply to statutes, we conclude that the requirements of rule 12 that follow from a finding that the attorneys failed to discharge their burden of proof to show their authority are mandatory. See BASF Fina Petrochemicals L.P. v. H.B. Zachry Co., 168 S.W.3d 867, 871 (Tex.App.-Houston [1st Dist.] 2004, pet. denied) (recognizing principles of statutory construction apply to rules of civil procedure); In re R.C.M., No. 02-09-00080, 2010 WL 1267759, at *5 (Tex.App.-Fort Worth Apr. 1, 2010, no pet.) (mem.op.) (same); see also Helena Chem. Co., 47 S.W.3d at 493 (holding term “shall” is generally construed as mandatory); Thordson v. City of Houston, 815 S.W.2d 550, 551 (Tex.1991) (holding requirement of rule that judge “shall” set hearing is mandatory).

Although the trial court found that Mr. Nelson and Ms. Wells did not meet their rule 12 burden of proof, the trial court’s finding was only that they failed to discharge that burden to show that they “were hired by individuals holding positions ... within the [Fort Worth Diocese] and [The Corporation] that are associated with Bishop Iker.” Additionally, the trial court barred Mr. Nelson and Ms. Wells only from appearing in the case as attorneys “for the [Fort Worth Diocese] and [The Corporation] that is associated with Bishop Iker” and did not strike the pleadings filed by Mr. Nelson and Ms. Wells on behalf of the Fort Worth Diocese and the Corporation.

V. Contentions of the Parties

Relators contend that the trial court abused its discretion by not striking the pleadings filed by Mr. Nelson and Ms. Wells in the names of the Fort Worth Diocese and the Corporation because it is undisputed that these attorneys were not hired by the duly elected Iker Group but by the Gulick Group, which merely claims to be the new Provisional Bishop and five newly appointed Trustees that have purported to sue in the names of the Fort Worth Diocese and the Corporation. Re-lators argue that rule 12 is a proper vehicle to decide not only whether an attorney has authority to represent a party in a particular suit but also whether those hiring the attorney have authority to do so on behalf of the party they purport to represent. Accordingly, Relators urge that the issue of the authority of the Gulick Group to hire Mr. Nelson and Ms. Wells on behalf of the Fort Worth Diocese and the Corporation should be decided based upon neutral principles of law. See Jones v. Wolf, 443 U.S. 595, 603-05, 99 S.Ct. 3020, 3025-26, 61 L.Ed.2d 775 (1979) (holding civil courts may adopt neutral principles of law as means of adjudicating intra-church property ownership disputes so long as resolution entails no inquiry into religious doctrine).

Relying on the Constitution of the Fort Worth Diocese and the requirements of the Texas Non-Profit Act as well as the Constitution and by-laws of the Corporation, which holds title to the funds and endowments in question, Relators argue that no persons other than the Individual Relators had authority to hire attorneys for the Corporation or the Fort Worth Diocese, and because the attorneys failed to establish any other person’s authority to do so, the trial court abused its discretion in denying the motion with respect to the Corporation and the Fort Worth Diocese.

Real Parties in Interest respond that the trial court actually denied Relators’ motion, as shown by the trial court’s comment during the hearing that the identity issue would be better decided by a ruling on the merits than under rule 12. Real Parties in Interest argue that the issue of the identity of the true Bishop and Trustees lies at the heart of the suit, that a rule 12 motion is not an appropriate vehicle for deciding that issue in the underlying case, and that the trial court acted within its discretion by postponing that decision until the merits are decided in the normal course of the litigation.

Real Parties in Interest further contend that, even if the trial court had reached the identity issue, it would have been required to defer to TEC as the sole arbiter of that issue, and that TEC has already determined that Relators — Bishop Iker and the elected Trustees named as Defendants below — are no longer serving as Bishop and Trustees of the Fort Worth Diocese and Corporation but have abandoned the Fort Worth Diocese and vacated their offices. Real Parties in Interest contend that, under the First Amendment, the identity of the Bishop and the Trustees are “ecclesiastical” questions and that this Court must defer to the decision of TEC that the Gulick Group had the authority to hire Mr. Nelson and Ms. Wells on behalf of the entities in question. See Serbian E. Orthodox Diocese for U.S. of Am. and Canada v. Milivojevich, 426 U.S. 696, 710, 717, 96 S.Ct. 2372, 2381, 2384, 49 L.Ed.2d 151 (1976) (holding, under First Amendment, decision of highest ecclesiastical tribunal of hierarchical church must be accepted on matters of discipline, faith, ecclesiastical rule, custom, or law and that defrocking of bishop was at “core” of ecclesiastical concern). Thus, Real Parties in Interest argue that we should deny Relators’ petition for writ of mandamus.

VI. Analysis

A. The Trial Court’s Abuse of Discretion

We do not reach the question of the true identity of the Bishop and Trustees because we agree that the trial court deferred a resolution of that issue pending a substantive motion or further proceedings on the merits, nor do we express any opinion concerning the propriety of resolving this intra-church dispute through litigation in a Texas state court. We do, however, apply the plain language of rule 12 in the context of the proceeding as it has been presented to us by the parties.

In that regard, neither side has challenged the trial court’s finding that Mr. Nelson and Ms. Wells did not discharge their burden of proof that they were hired by individuals holding positions at the time of their hiring within the Fort Worth Diocese and the Corporation that were associated with Bishop Iker. Absent such proof, while Mr. Nelson and Ms. Wells may be authorized to represent the individuals who hired them, these attorneys have not established their authority to represent or appear on behalf of the Fort Worth Diocese and the Corporation as required by rule 12.

It is undisputed that there is only one Corporation and only one Fort Worth Diocese, regardless of how those entities are named or characterized in the underlying suit — -whether as entities, as individuals “holding themselves out” as those entities, or as individuals “associated with” one or the other Bishop. There is a single Fort Worth Diocese and Corporation, which both a majority and a minority faction claim to control. The attorneys whose authority is challenged are either authorized to represent those two entities or they are not. But the trial court has barred them from representing only the Corporation and the Fort Worth Diocese associated with the Iker Group. We are aware of no statute or common law rule allowing attorneys to prosecute a suit in the name of a corporation or other entity on behalf of only one faction or part of that corporation or entity against another part or faction.

Additionally, we are guided by the rule emphatically stated in Rule 1.12 of the Texas Disciplinary Rules of Professional Conduct that “[a] lawyer retained or employed by an organization represents the entity,” not its directors, officers, employees, members, or other constituents. Tex. Gov’t Code Ann. Title 2, Subt. G, App. A, Art. 10, § 9, Rule 1.12 (Vernon Supp.2009). This rule reflects established law that “[i]n a corporation’s affairs, there is but one client — the corporation.” In re Marketing Investors Corp., 80 S.W.Sd 44, 49 (Tex.App.-Dallas 1998) (orig.proceeding) (quoting Commodity Futures Trading Comm’n v. Weintraub, 471 U.S. 343, 348, 105 S.Ct. 1986, 1991, 85 L.Ed.2d 372 (1985)). A lawyer representing a corporation and the corporation have a fiduciary relationship. See Bryan v. Bartlett, 435 F.2d 28, 37 (8th Cir.1970), cert. denied, 402 U.S. 915, 91 S.Ct. 1373, 28 L.Ed.2d 658 (1971). Thus, a lawyer may not be hired to represent a corporation by one of two factions in the organization against the other faction. See Tex. Gov’t Code Ann. Title 2, Subt. G, App. A, Art. 10, § 9, Rule 1.12, cmt. 4. Because the interests of the individuals within the Fort Worth Diocese and the Corporation associated with Bishop Iker are adverse to those associated with Bishop Gulick, by whom Mr. Nelson and Ms. Wells were hired, those attorneys may represent the latter individuals but not the entities when they did not discharge their burden of proving authority to do so.

The trial court did not determine on the merits which Bishop and which Trustees are the authorized persons within the Corporation and the Fort Worth Diocese, nor do we. The question of “identity” remains to be determined in the course of the litigation. For the purposes of the rule 12 motion, however, the effect of the trial court’s order is that Mr. Nelson and Ms. Wells have not established authority to represent the Fort Worth Diocese and the Corporation. Given the mandates of rule 12, it was not within the discretion of the trial court not to strike the pleadings filed by Mr. Nelson and Ms. Wells on behalf of the Corporation and the Fort Worth Diocese and not to bar those attorneys from participating in the cause on behalf of the Corporation and the Fort Worth Diocese. See Thordson, 815 S.W.2d at 551 (holding, under language of rule 165a(4) requiring that judge “shall” set hearing on motion to reinstate as soon as practicable, it was not within trial court’s discretion to fail to hold a hearing on motion to reinstate). Therefore, the trial court clearly abused its discretion.

B. No Adequate Remedy by Appeal

Having held that the trial court clearly abused its discretion, we must still determine whether Relators have an adequate remedy by appeal. The supreme court has explained that “[mjandamus review of incidental, interlocutory rulings by the trial courts unduly interferes with trial court proceedings, distracts appellate court attention to issues that are unimportant both to the ultimate disposition of the case at hand and to the uniform development of the law, and adds unproductively to the expense and delay of civil litigation.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 136 (Tex.2004). However, the court has further explained,

Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings.

Id. This is an exceptional case justifying mandamus relief because the failure to correct the trial court’s abuse of discretion would “so skew[] the litigation process that any subsequent remedy by appeal [would be] inadequate.” Travelers Indent. Co. of Conn. v. Mayfield, 923 S.W.2d 590, 595 (Tex.1996) (orig.proceeding) (granting mandamus relief where trial court’s abuse of discretion by requiring a party to advance litigation costs of the opposition in addition to its own expenses so “radically skew[ed] the procedural dynamics of the case” that any subsequent remedy by appeal was inadequate); see also TransAm. Nat Gas Corp. v. Powell, 811 S.W.2d 913, 919 (Tex.1991) (eventual remedy by appeal from trial court’s interlocutory order imposing death penalty sanction is inadequate because “[t]he entire conduct of the litigation is skewed” by imposition of the sanction).

Because a corporation cannot sue itself, the trier of fact will be unnecessarily confused by presentations from two opposing factions who claim to be the Corporation and the Fort Worth Diocese. Unless the trial court’s order is modified to strike the pleadings filed by Mr. Nelson and Ms. Wells on behalf of the Corporation and the Fort Worth Diocese and to bar those attorneys from appearing in the underlying cause as attorneys of record for the Corporation and the Fort Worth Diocese, confusion in the litigation will be perpetuated, including the appearance that the issue is already resolved in favor of one party before the questions of identity and title to the property held by the Corporation and the Fort Worth Diocese are determined in the course of the litigation. Moreover, as the parties are currently postured, any judgment against the Iker Group would be reversible because the Iker Group was not shown to have authorized bringing this suit on behalf of the Corporation or the Fort Worth Diocese. See City of Grand Prairie v. Finch, 294 S.W.2d 851, 853 (Tex.Civ.App.-Dallas 1956, no writ) (noting that a finding that a party produced no evidence of the authority with which the suit was prosecuted is ordinarily reversible error). An appeal after final judgment would be inadequate because the time and money for trial as the parties are currently named and aligned would be wasted in enduring a proceeding that concludes without a binding judgment. Therefore, we hold that Relators do not have an adequate remedy by appeal.

VII. Conclusion

We conditionally grant the writ of mandamus and direct the trial court to modify its order of September 16, 2009 to follow the mandates of rule 12 and to strike the pleadings filed by Mr. Nelson and Ms. Wells on behalf of the Corporation and the Fort Worth Diocese and bar them from appearing in the underlying cause as attorneys of record for those named plaintiffs. If the trial court fails to do so, the writ will issue.

      . Relators do not contest the authority of the attorneys for TEC to prosecute the underlying suit on its behalf.

      . Cf. De Zavala v. Daughters of the Repub. of Tex., 58 Tex.Civ.App. 19, 23-24, 124 S.W. 160, 162 (Tex.Civ.App.Galveston 1909, writ ref'd) (determining which of two factions constituted properly elected officers that represented organization but noting that, in effect, actions of rival factions constituted two separate corporations).

      . We express no opinion as to whether a derivative action may be maintained by members of a non-profit entity on its behalf. See Flores v. Star Cab Co-op. Ass'n, Inc., No. 07-06-00306, 2008 WL 3980762, at *7 (Tex.App.Amarillo, Aug. 28, 2008, pet.denied) (mem. op.) (noting lack of statutory authority for and not deciding issue).

      . We express no opinion on the merits of the underlying suit and simply note that this is one of the possible difficulties that might occur if the trial court's order is not modified.


author: D.P. MARSHALL JR., Judge.

text:
    2009 Ark. App. 178
    Daryl GUFFEY, Appellant, v. Kim Billings COUNTS & Office of Child Support Enforcement, Appellees.
    No. CA 08-736.
    Court of Appeals of Arkansas.
    March 11, 2009.
    The Kester Law Firm, by: Charles M. Kester and Dawn C. Egan, Fayetteville, for appellant.
    Kimberly A. Counts, pro se appellee.
    G. Keith Griffith, Office of Child Support Enforcement, Van Burén, for appellee OCSE.
   D.P. MARSHALL JR., Judge.

|,A noncustodial parent, trying to do the right thing, voluntarily increases his court-ordered child-support payments because his income has increased. No court order mandating and memorializing the change is ever entered. More than seven years pass. Faced with a petition from the Office of Child Support Enforcement for an increase in support, the noncustodial parent pays nothing for four months. He then settles with OCSE on an increased support amount going forward. May the noncustodial parent get the benefit of his years of overpayments against the four months of unpaid support? The circuit court said no, giving various reasons. We conclude, based primarily on the voluntariness of the overpayments and a slightly different estoppel analysis, that the circuit court answered the question correctly.

The material facts are undisputed. Daryl Guffey and Kim (Billings) Counts divorced in 1995. The circuit court awarded custody of the parties’ two sons to Counts and ordered Guffey to pay child support. After one modification, Guffey was obligated to pay about $400.00 a month. In 2000, Guffey wrote Counts. He provided copies of some pay stubs showing increased income and explained that he had used the enclosed chart from Administrative Order No. 10 to calculate his support obligation at $694.00 a month. Guffey suggested that this arrangement would “bring to an end either of us spending any more money on attorney fees.”

At an earlier hearing, the chancellor had emphasized that private agreements changing support were not binding. In response to Guffey’s letter, Counts contacted her lawyer. She then requested more financial information from Guffey. She also suggested preparing an agreed order that her lawyer could present to the court to avoid more attorney’s fees. No modification order was ever entered. For seven years, Guffey paid the increased amount every month into the court’s registry, noting on his check the month covered by the payment. The records showed the overpayments. Counts used the money each month for their sons’ needs.

In the fall of 2007, the OCSE petitioned the court to increase Guffey’s monthly obligation. For the four following months, acting on the advice of counsel, Guffey paid no support. He and OCSE eventually settled, resulting in an order requiring Guffey to pay |sabout $925.00 a month. Counts asked the circuit court to hold Guf-fey in contempt for the four-month gap in payments. Guffey responded that he was entitled to credit as to those months for his seven years of overpayments.

After a hearing, the court held Guffey in contempt and ordered him to pay four months’ worth of support at the earlier court-ordered amount — approximately $1600.00 total — over time. The court gave a thorough ruling from the bench, which was later reduced to an order. The court gave many reasons for its conclusion: Guf-fey never intended for the overpayments to be credits; the payments were child support, not future child support; they were gifts; and “principles of equity and equitable estoppel” barred Guffey from claiming credit for them against his four-month gap.

II.

We are not persuaded by Guffey’s main argument that, in essence, the circuit court’s decision retroactively modified his child-support obligation. Absent a finding of fraud in procuring the order, our law forbids retroactive modifications of support orders. E.g., Yell v. Yell, 56 ArkApp. 176, 179, 939 S.W.2d 860, 862 (1997). Like all parents, Guffey had a legal duty to support his minor children apart from any court order. Ford v. Ford,, 347 Ark. 485, 490, 65 S.W.3d 432, 440 (2002). Under the longstanding order in this case, Guffey’s legal duty was quantified at about $400 a month. But he volunteered to pay more and did so regularly. The scope of his enforceable legal obligation remained unchanged until the OCSE petitioned the court in late 2007 to order increased support. Yell, 56 Ark. App. at 179, 939 S.W.2d at 862.

[4The circuit court concluded that Guffey’s overpayments were both child support and a gift. Guffey attacks that characterization, arguing that the money was either one or the other but not both. We see no gift. Guffey paid more because he recognized his inchoate legal obligation to increase support based on increased income. His acts were commendable, but he was not giving presents. This was voluntary child support month by month. The voluntariness of the payments is legally important. One who pays without legal obligation is not, in general, entitled to claim the benefit of his voluntary payment. Bishop v. Bishop, 98 ArkApp. 111, 114, 250 S.W.3d 570, 572 (2007); see also Glover v. Glover, 268 Ark. 506, 508, 598 S.W.2d 736, 737 (1980). Reading the bench ruling and order as a whole, we are convinced that the circuit court correctly focused on the voluntariness of Guffey’s overpayments. The gift label is not dis-positive.

The core question is whether Guffey was entitled to wash his later nonpayments with his prior overpayments. We think not. How can this be if, as Guffey presses, our law refuses to recognize private agreements modifying child support? E.g., Burnett v. Burnett, 313 Ark. 599, 603-05, 855 S.W.2d 952, 954-55 (1993).

Guffey makes a strong point. For example, if either he or Counts had petitioned the circuit court to enforce their $694.00-a-month agreement, the court would have said no, and made an independent judgment about the correct support amount — starting from the petition date— based on Guffey’s income. Yell, supra. Neither parent, however, sought to enforce their agreement. Instead, the circuit court enforced the prior order for $405.00 a month, accepted Counts’s estoppel defense, and barred Guffey from belatedly claiming the 15benefit of his voluntary over-payments.

Estoppel resolves the tension here. The books are full of cases holding that, notwithstanding the law against enforcing private support agreements, estoppel is available to do equity between the parties. E.g., Wilhelms v. Sexton, 102 ArkApp. 46, 51-53, 280 S.W.3d 565, 569 (2008); Chit-wood v. Chitwood, 92 ArkApp. 129, 137-38, 211 S.W.3d 547, 552 (2005); Lewis v. Lewis, 87 ArkApp. 30, 33-34, 185 S.W.3d 621, 623 (2004); Barnes v. Morrow, 73 ArkApp. 312, 317-18, 43 S.W.3d 183, 187-88 (2001); Ramsey v. Ramsey, 43 Ark. App. 91, 96-98, 861 S.W.2d 313, 316-17 (1993). That is precisely what the circuit court did in this case.

The parties spar about whether modern equitable-estoppel doctrine applies to the essentially undisputed facts. Chitwood, 92 ArkApp. at 138, 211 S.W.3d at 552 (elements). It does not. The circuit court, as Guffey reminds us, said as much in its bench ruling. The court found no hidden knowledge on Guffey’s part. He did not make each monthly payment knowing, while Counts did not, that he was building up a credit balance that he could use to cover future obligations. The court found, and the record leaves no doubt, that Guf-fey intended each monthly payment to support his sons’ needs for that month. Guffey (or his new wife) so noted on every check. Guffey’s intentions, as he points out, do not decide the support issue. Glover, 268 Ark. at 507-09, 598 S.W.2d at 736-37 (noncustodial parent’s intentions that medical care and airfare were child support not dispositive). But they drive the estoppel analysis. Absent knowledge on Guffey’s part, and corresponding lack of knowledge on Counts’s part, the modern understanding of equitable estoppel does not fit the | ficase. Chitwood,, supra.

Here again, we must avoid the tyranny of legal categories. “In using the term ‘estoppel,’ one is of course aware of its kaleidoscopic varieties.” John H. Wig-more, The Scientific Role of Consideration in Contract, in Legal Essays in Tribute to Orrin Kip McMurray 641, 648 (Max Radin and A.M. Kidd, eds., 1935). The circuit court rested its order on “principles of equity and equitable estoppel,” concluding that “it would be wholly inequitable to allow the defendant to claim a credit for the alleged overage paid since February 2000.” The conclusion was sound, as was the invocation of equitable principals and estoppel in general. We may affirm on any ground supported by the record. Fñtzinger v. Beene, 80 Ark.App. 416, 424, 97 S.W.3d 440, 444 (2003). And we therefore put to one side the particular variety of estoppel mentioned by the circuit court.

The correct ground, we conclude, is the promissory variety of estoppel. Wate-rall v. Waterall, 85 Ark.App. 363, 367-68, 155 S.W.3d 30, 33 (2004). Guffey told Counts that he would pay the higher monthly amount of support. He did so voluntarily and faithfully for seven years. She accepted the payments, relying on them month by month to support their children. Because of her reliance, it would be inequitable to rewind the years and give Guffey credit now for some of the overpay-ments against his four months of unpaid child support. Waterall, 85 Ark.App. at 367-68,155 S.W.3d at 33.

We have found no Arkansas case applying this variety of estoppel in a child-support dispute, though this court has indicated that the doctrine may be available. Shroyer v. \1Kauffman, 75 Ark.App. 267, 273, 58 S.W.3d 861, 865 (2001). For several reasons, we have no hesitation in applying promissory estoppel in this case. First, as we said, precedent approves applying estoppel principles in these kinds of cases. Second, doctrinal flexibility is the hallmark of equity. Third, long before the modern hardening of equitable estoppel into “essential” elements, Arkansas recognized and applied the root principle at work:

Equitable estoppel is the effect of the voluntary conveyance of a party, whereby he is absolutely precluded, both at law and in equity, from asserting rights which might perhaps have otherwise existed, either of property, of contract, or of remedy, as against another person, who has in good faith relied upon such conduct, and has been led thereby to change his position for the worse, and who on his part acquires corresponding right, either of property, of contract, or of remedy.

Geren v. Caldarera, 99 Ark. 260, 263, 138 S.W. 335, 336 (1911) (quotation and citation omitted). So described, the principle covers promissory estoppel, equitable estop-pel, and many other varieties of estoppel. The point is the estoppel — the bar — raised by the parties’ conduct. Guffey’s voluntary overpayments of monthly child support for seven years, and Counts’s reliance by spending the money each month for their sons, precludes Guffey from getting belated credit for his past extra support.

Our holding is not in conflict with Burnett, and like cases, which refuse to enforce private support agreements. In the circumstances presented, the circuit court made no error in refusing Guffey’s claim for a credit for his voluntary overpayments against his four months of unpaid support. Counts was entitled to raise an estoppel defense to that claim. Cf. Shroyer, supra. Nor are we persuaded that Glover v. Glover, supra, decides this case in | ^Guffey’s favor either. Payments made into the registry are certainly child support. Guffey’s overpayments were. But that truth does not compel an impervious legal conclusion that Guffey was entitled to credit for his overpayments. Estoppel was neither raised nor decided in Glover. 268 Ark. at 507-09, 598 S.W.2d at 736-37.

We recognize, too, that the chancellor told them, twice, in an earlier hearing that Guffey would receive credit for support payments made through the registry. Reading those statements in context, however, it is clear that the court was cautioning Guffey about the risk of paying Counts around the system. But if Guffey had made such payments, and if Counts had admitted receiving them, then our law would not pretend the payments were never made. Ramsey, supra. The chancellor’s admonition was correct but incomplete. Like Glover, the chancellor’s statements do not decide this case. Estoppel principles and the voluntary-payment rule

One point remains. On reply, Guffey argues that OCSE has no standing on appeal. Here Guffey is correct. OCSE settled with Guffey, and did not participate in the hearing about the overpayment issue. Before the hearing OCSE even argued that the records showed a credit for Guffey. On appeal, OCSE and Counts filed a joint appellees’ brief supporting the judgment. She is pro se on the brief. OCSE, however, has no standing to argue the issues presented on appeal. At this point, it has no dog in the overpayment hunt. Insurance from CNA v. Keene Corp., 310 Ark. 605, 610, 839 S.W.2d 199, 202-03 (1992). IsAncl OCSE cannot make new arguments on appeal, especially ones contradicting its position below. Taylor v. Producers Rice Mill, Inc., 89 ArkApp. 327, 329-30, 202 S.W.3d 565, 567 (2005). We found the brief helpful. But we consider it on behalf of Counts alone; and we reject OCSE’s request that we award the Office fees for preparing the brief.

Affirmed.

KINARD and GLOVER, JJ., agree.


author: Justice ABRAMSON.

text:
    Orlando SAXTON, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    No. 2008-SC-000899-DG.
    Supreme Court of Kentucky.
    June 17, 2010.

      Jamesa J. Drake, Assistant Public Advocate, Department of Public Advocacy, Frankfort, KY, Counsel for Appellant.
    Jack Conway, Attorney General, David Wayne Barr, Assistant Attorney General, Office of Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.
   Opinion of the Court by

Justice ABRAMSON.

Pursuant to Kentucky Revised Statute (KRS) 218A.1411, any one who unlawfully traffics in a controlled substance within one thousand (1,000) yards of a school is guilty of a Class D felony unless the provisions of KRS Chapter 218A otherwise provide a more severe penalty for the offense. Following his conviction for selling marijuana within 1,000 yards of Graves County High School, Appellant Orlando Saxton challenges that conviction on the ground that the Commonwealth was required to prove that he knew he was trafficking within the prohibited proximity to a school. He also alleges that his conviction was tainted by palpable error because police entrapped him by arranging for the drug transaction to occur at a specific location near the school. Finding no error on either ground, we affirm his conviction.

RELEVANT FACTS

Saxton was indicted by the Graves County Grand Jury on three counts of first-degree trafficking in a controlled substance and one count of trafficking in a controlled substance within 1,000 yards of a school. He was convicted on all four counts following a jury trial and sentenced to five years on each of the first-degree trafficking charges and one year on the charge of trafficking within 1,000 yards of a school, with all sentences to run consecutively for a total of sixteen years. The first-degree trafficking charges arose from sales of cocaine on January 25, 2006 and are not pertinent to this appeal.

The violation of KRS 218A.1411, a statute entitled “Trafficking in controlled substance in or near school-Penalty”, involved a January 7, 2006 sale of marijuana to Saxton’s aunt, Anna Saxton, and her fian-cé, Henry Island. After agreeing to work as informants for the Pennyrile Narcotics Task Force, Ms. Saxton and Island arranged for Orlando Saxton to meet them at a Days Inn Motel, a location within 1,000 yards of Graves County High School. In a videotaped transaction, Saxton sold the informants 8.3 grams of marijuana. Saxton was convicted as noted and appealed to the Court of Appeals.

The Court of Appeals rejected Saxton’s argument that Kentucky law imparted a mens rea requirement to KRS 218A.1411, i.e., that the Commonwealth was required to prove that he “knowingly” trafficked within 1,000 yards of a school. That Court also rejected Saxton’s arguments that his conviction was tainted by police entrapment constituting palpable error and that he was impermissibly denied the opportunity to impeach Henry Island. This Court granted discretionary review as to the alleged mens rea requirement in KRS 218A.1411 and the entrapment issue.

ANALYSIS

I. KRS 218A.1411 Does Not Require Proof That a Defendant Knew He Was Trafficking Illegal Drugs Within 1,000 Yards of a School.

Kentucky has codified criminal offenses involving trafficking and possession of controlled substances in KRS Chapter 218A entitled simply “Controlled Substances.” Trafficking in the first-degree, second-degree and third-degree all require that a person “knowingly and unlawfully” traffic in the particular controlled substances covered by that specific offense. See KRS 218A.1412, .1413, and .1414. Similarly, KRS 218A.1421 prohibits “knowingly and unlawfully” trafficking in marijuana and provides penalties ranging from a Class A misdemeanor to a Class B felony contingent upon the quantity of marijuana and whether it is a first or subsequent offense. But for KRS 218A.1411 regarding trafficking in proximity to a school, Saxton would have been charged with a Class A misdemeanor due to the fact he sold less than 8 ounces of marijuana and it was his first offense. He challenges his Class D felony conviction pursuant to KRS 218A.1411, maintaining that various provisions in KRS Chapter 501 of the Kentucky Penal Code and, by analogy, United States Supreme Court case law, require the Commonwealth to prove he knew he was conducting the drug transaction within 1,000 yards of a school. We begin not with Saxton’s extra-statutory language arguments but with the plain language of the statute.

KRS 218A.1411 provides:

Any person who unlawfully traffics in a controlled substance classified in Schedules I, II, III, IV or V, or a controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) yards of any school building used primarily for classroom instruction shall be guilty of a Class D felony, unless a more severe penalty is set forth in this chapter, in which case the higher penalty shall apply. The measurement shall be taken in a straight line from the nearest wall of the school to the place of violation.

Clearly, the statute contains no requirement that the person who is unlawfully trafficking “know” that he is doing so within 1,000 yards of a school. In this regard, our statute is like its federal counterpart, formerly codified at 21 U.S.C. § 845a and entitled “Distribution in or near schools”, which similarly provides more severe penalties for “distributing a controlled substance” near a school but contains no reference to a mens rea on the part of the defendant as to the proximity of the school. Before turning to instructive federal precedent addressing that particular statute, it is also noteworthy that KRS 218A.1411 simply refers to one who “unlawfully” traffics. As noted above, all of the other trafficking statutes in KRS Chapter 218A employ two adverbs to modify “traffics”, ie., “knowingly and unlawfully.” KRS 218A.1411 departs from that form in what appears to be a very deliberate choice of language.

As for the federal statute prohibiting distribution of drugs in or near schools, several United States Courts of Appeal have upheld the federal statute against challenges that it violates due process because it provides extra punishment without regard for whether the actor knew of either the existence of the statute or his proximity to a school. In United States v. Holland; 810 F.2d 1215, 1222-23 (D.C.Cir. 1987), the District of Columbia Circuit Court of Appeals readily rejected the ignorance of the law argument:

Generally, as Holland concedes, ignorance of the law does not serve as an excuse for criminal conduct. The narrow exception to this rule is found where legislation criminalizes “wholly passive” conduct by a person who is “unaware of any wrongdoing.” Lambert v. California, 355 U.S. 225, 228 [78 S.Ct. 240, 2 L.Ed.2d 228] ... (1957). Lambert itself emphasizes the narrowness of this exception: “There is wide latitude in the lawmakers to declare an offense and to exclude elements of knowledge and diligence from its definition.... The rule that ‘ignorance of the law will not excuse’ ... is deep in our law....” Id. (citations omitted). Due process does not require the prosecution to prove that a drug trafficker had actual knowledge of section 845a.

As to the argument that section 845a was constitutionally infirm because it did not require proof that the drug trafficker had knowledge of his proximity to the school, the Holland Court noted that Second Circuit cases rejecting the argument, including U.S. v. Falu, 776 F.2d 46 (2nd Cir.1985), were fully reconcilable with the United States Supreme Court decision in Liparota v. United States, 471 U.S. 419, 105 S.Ct. 2084, 85 L.Ed.2d 434 (1985), a case Saxton relies on in this Court. The Holland Court noted that

Liparota was concerned with a food stamp statute which provided “that ‘whoever knowingly uses, transfers, acquires, alters, or possesses coupons or authorization cards in any manner not authorized by [the statute] or the regulations’ is subject to a fine and imprisonment.” ... The Supreme Court held that in order to violate this statute, the government must prove that the accused knew that his or her use, transfer, acquisition, alteration or possession was unauthorized .... The Court emphasized in reaching this result that this construction is particularly appropriate where ... to interpret the statute otherwise would be to criminalize a broad range of apparently innocent conduct ... [and that] requiring mens rea [here] is in keeping with our longstanding recognition that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of lenity” ... Although the rule of lenity is not to be applied where to do so would conflict with the implied or expressed intent of Congress, it provides a time-honored interpretive guideline when the congressional purpose is unclear.

The rationale of Liparota does not apply to the present case. Section 845a does not criminalize a broad range of apparently innocent conduct. Nor would it be appropriate to apply the rule of lenity here, where the application of it would “undercut [the] unambiguous legislative design” of this section.

810 F.2d at 1223 (citations omitted). The Holland Court’s discussion of legislative intent with regard to the federal statute is particularly noteworthy because Kentucky’s own drug trafficking statutes are modeled on federal law.

It is easily concluded here that Congress’ heightened interest in protecting children from both the indirect and the direct perils of drug traffic amply supports its decision not to require a showing of mens rea of the proximity of a school. A reasonable person would know that drug trafficking is subject to stringent public regulation because it can seriously threaten the community’s health and safety, particularly as it relates to the community’s heightened concern for the health, safety and welfare of its children. And because knowledge of section 845a is presumed in law, it is reasonable for Congress to have expected drug traffickers to ascertain their proximity to schools and remove their operations from these areas or assume the risk for their failure to do so.

810 F.2d at 1223. Numerous federal and state courts have similarly rejected constitutional challenges to statutes increasing the penalties for trafficking in controlled substances in or near schools despite the absence of any requirement that the actor know of his proximity to a school. See, e.g., United States v. Cross, 900 F.2d 66, 69 (6th Cir.1990); United States v. Haynes, 881 F.2d 586, 590 (8th Cir.1989); United States v. Pitts, 908 F.2d 458, 461 (9th Cir.1990); State v. Morales, 224 N.J.Super. 72, 539 A.2d 769, 775-76 (1987); State v. Coria, 120 Wash.2d 156, 839 P.2d 890, 895-96 (1992). Thus, we address Saxton’s specific arguments with awareness that KRS 218A.1411 contains no express requirement, or even suggestion, that the Commonwealth must prove that a drug trafficker knew of his proximity to a school and, further, with an understanding that the absence of a mens rea as to the proximity issue poses no federal constitutional issues.

Saxton premises his first argument on KRS 501.030 and 501.020(2), two statutes contained in the “General Principles of Liability” section of the Kentucky Penal Code. The Penal Code consists of KRS Chapters 500 to 534. See KRS 500.010. As noted, all criminal offenses relating to controlled substances are codified outside of the Kentucky Penal Code in a separate, largely self-contained chapter of the Kentucky Revised Statutes, KRS Chapter 218A. Thus, initially, we note that it is questionable whether Kentucky Penal Code provisions can be deemed to dictate principles applicable to the controlled substance offenses contained in KRS Chapter 218A. Saxton urges that the general principles of liability applicable to Penal Code offenses must apply, however, because KRS 218A.015 essentially imports them by stating: “When used in this chapter, the terms “intentionally,” “knowingly,” “wantonly,” and “recklessly,” including but not limited to equivalent terms such as “with intent,” shall have the same definition and the same principles shall apply to their use as those terms are defined and used in KRS Chapter 501.” (emphasis supplied). However, none of these mental states is “used” in KRS 218A.1411, (indeed, that is the very issue that is before us), so it is difficult to conclude that a statute that makes no mention of “intentionally,” “knowingly” or any of the other mental states somehow imports Penal Code principles relating to those mental states.

Assuming arguendo that somehow this importation did occur, Saxton’s argument is simply unavailing. He notes that KRS 501.030(2) provides that a person is not guilty of a criminal offense unless he acts with the requisite mental state “with respect to each element of the offense.” However, in its entirety, KRS 501.030 provides:

A person is not guilty of a criminal offense unless:
(1) He has engaged in conduct which includes a voluntary act or the omission to perform a duty which the law imposes upon him and which he is physically capable of performing; and
(2) He has engaged in such conduct intentionally, knowingly, wantonly or recklessly as the law may require, with respect to each element of the offense, except that this requirement does not apply to any offense which imposes absolute liability, as defined in KRS 501.050.

Again, the law at issue in this case, KRS 218A.1411, does not specifically require the actor to act intentionally, knowingly, wantonly or recklessly with regard to the locale of his drug transaction. Instead, it incorporates all forms of “unlawful” trafficking (a reference to other provisions of KRS Chapter 218A) and makes engaging in that otherwise illegal act potentially subject to harsher penalties if it occurs within sufficient proximity to a school. Read literally KRS 218A.1411 does not require any mental state, just otherwise unlawful trafficking within a particular physical area or zone. Given the absence of mention of any mental state in KRS 218A.1411, KRS 501.030(2) cannot be read to require imputation of a “knowing” mental state.

Saxton couples his KRS 501.030 argument with citation to the Penal Code definition of “knowingly” set forth in KRS 501.020(2): “A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.” While admittedly “knowingly” can be applicable to a circumstance, it plainly is not applicable to the specific circumstance identified in KRS 218A.1411, proximity to a school, because the legislature did not employ the term. In short, “knowingly” could have easily been inserted in the statute along with “unlawfully” if that was the legislative intent but, as with the Federal statute and those of many sister states, it was not.

KRS 501.030(2) references an “absolute liability” offense as defined in KRS 501.050, a statute that Saxton also focuses on as evidence that KRS 218A.1411 must be construed to include a “knowing” mental state. KRS 501.050 states:

A person may be guilty of an offense ■without having one (1) of the culpable mental states defined in KRS 501.020 only when:
(1) The offense is a violation or a misdemeanor as defined in KRS 500.080 and no particular culpable mental state is included within the definition of the offense; or
(2) The offense is defined by a statute other than this Penal Code and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described.

Saxton argues vigorously that the legislature did not intend to create an absolute liability offense when it passed KRS 218A.1411 and then uses that principle to introduce his argument that a culpable mental state must be required. We would agree that the statute is not an absolute liability statute as those are typically understood because the culpable mental state is supplied by the trafficking statutes themselves, all of which require the actor to act “knowingly and unlawfully”. A m,ens rea for the person’s conduct is thus incorporated requiring proof by the Commonwealth to that effect but, again, the statute is silent as to any additional requirement of proving a mens rea as to the fact the drug transaction is being conducted in close proximity to a school. The fact that KRS 218A.1411 is not an absolute liability offense does not lead to Saxton’s desired result, i.e., it does not mean a fortiori that an unlawful drug trafficker must know that he is conducting business in close proximity to a school before he can be subject to the harsher penalty potentially imposed by that statute.

Finally, Saxton argues that the language in KRS 501.030(2) regarding “each element of the offense”, when read in conjunction with United States Supreme Court precedent, leaves no doubt that a “knowing” mental state must be applied as to the drug trafficker’s proximity to a school. As noted above, there is no mental state expressed in KRS 218A.1411 and KRS 501.030(2) is clear that the requirement of a mental state “with respect to each element of the offense” must be “as the law may require....” Additionally, as noted, the KRS Chapter 501 statutes have limited application to non-Penal Code offenses. Even assuming these statutes apply, KRS 501.040 provides: “Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state.” (emphasis supplied). Thus, even within the Penal Code, there is recognition that a culpable mental state may not be required as to an element of the offense. That is exactly how the Kentucky General Assembly drafted KRS 218A.1411, with no culpable mental state as to the proximity to a school. Moreover, proximity to a school is not “conduct” as referenced in the closing language of KRS 501.040 and thus does not “necessarily involve [a] culpable mental state.” Rather, prohibited proximity to a school is a circumstance that can lead to harsher punishment for otherwise illegal conduct, drug trafficking, regardless of the trafficker’s knowledge of the nearby school.

Saxton’s U.S. Supreme Court precedent is similarly unavailing. In Flores-Figueroa v. United States, — U.S. -, 129 S.Ct. 1886, 173 L.Ed.2d 853 (2009), a federal identity theft statute provided aggravated penalties for one who “knowingly transfers, possesses, or uses, without lawful authority, a means of identification of another.” The defendant was convicted for using a social security card and an alien registration card that contained his lawful name but social security and registration numbers assigned to another person. The Supreme Court construed “knowingly” in the statute to modify not only the verbs but also “the object of the sentence” and, therefore, the government was required to prove that the defendant knew that the identification numbers he used belonged to another person. The Flores-Figueroa decision is very clearly premised on careful consideration of the statutory text and principles of ordinary English grammar.

There are strong textual reasons for rejecting the Government’s position. As a matter of ordinary English grammar, it seems natural to read the statute’s word “knowingly” as applying to all the subsequently listed elements of the crime. The Government cannot easily claim that the word “knowingly” applies only to the statutes (sic) first four words, or even its first seven....
In ordinary English, where a transitive verb has an object, listeners in most contexts assume that an adverb (such as knowingly) that modifies the transitive verb tells the listener how the subject performed the entire action, including the object as set forth in the sentence. Thus, if a bank official says, “Smith knowingly transferred the funds to his brother’s account,” we would normally understand the bank official’s statement as telling us that Smith knew the account was his brother’s. Nor would it matter if the bank official said “Smith knowingly transferred the funds to the account of his brother.” In either instance, if the bank official later told us that Smith did not know the account belonged to Smith’s brother, we should be surprised.

129 S.Ct. at 1890.

Focusing similarly on the words employed in KRS 218A.1411, it is abundantly clear that the legislature chose not to use the “knowing” mental state which Saxton advocates anywhere in the statute. The statutory construction issue before us is wholly unlike Flores-Figueroa because it is not a matter of determining which elements of the offense are modified by the stated mental state that introduces the statute. Saxton’s other United States Supreme Court precedent is also distinguishable. See Arthur Andersen LLP v. United States, 544 U.S. 696, 125 S.Ct. 2129,161 L.Ed.2d 1008 (2005) (statute that applied to one who “knowingly uses intimidation or physical force, threatens or corruptly persuades another person ... with intent to ... cause or induce” that person to withhold testimony or documents in an official proceeding requires, as a matter of linguistics and in light of the entire statutory scheme, that the person “knowingly ... corruptly persuade”); United States v. X-Citement Video, Inc., 513 U.S. 64, 115 S.Ct. 464, 130 L.Ed.2d 372 (1994) (statute that applies to any person who “knowingly transports or ships” any visual depiction “which involves the use of a minor engaging in sexually explicit conduct” requires the person to know the person depicted is a minor because inter alia the age of the performer is a crucial statutory element separating legal innocence from wrongful conduct and the legislative history supports that construction).

Just as these cases focus intently on the language of the statute, Love v. Common-ivealth, 55 S.W.3d 816 (Ky.2001) began with the language of the third-degree assault statute, KRS 508.025(1). That statute applies to a person who “[r]ecklessly, with a deadly weapon or a dangerous instrument, or intentionally causes or attempts to cause physical injury to ... a state, county, city or federal peace officer.” This Court held that given the mens rea language employed by the General Assembly and KRS 501.030(2), discussed above and applicable to Penal Code offenses, a defendant cannot be convicted of third-degree assault unless he is shown to have actual knowledge of the victim’s status as a peace officer, although such knowledge could be proven through circumstantial evidence. Love is distinguishable in much the same manner as the United States Supreme Court cases, i.e., the conclusion regarding mens rea as to the challenged element is derived from the very language chosen by the legislature. In this case, Saxton has no basis in KRS 218A.1411 from which to extrapolate a requirement that the proximity to a school be known by the defendant.

These cases bring us full circle to the real issue before us, namely the legislative intent with respect to KRS 218A.1411. Discerning and effectuating the legislative intent is the first and cardinal rule of statutory construction. Toy v. Coca Cola Enterprises, 274 S.W.3d 433, 434 (Ky.2008). KRS 218A.1411 contains no indication whatsoever that the legislature intended for the enhanced punishments to apply only if the drug trafficker knew that he was within 1,000 yards of a school. Saxton’s attempt to impart a mens rea has no basis in the statutory language and none of the KRS 501 statutory provisions or distinguishable United States Supreme Court cases require a contrary conclusion. As the Holland court aptly noted in concluding that the federal statute prohibiting unlawful distribution of controlled substances in or near schools applied regardless of the defendant’s knowledge, the possibility that the drug transaction will be within the proscribed proximity of a school is simply a risk that the drug trafficker assumes; his knowledge, or lack thereof, is irrelevant. 810 F.2d at 1223.

II. Saxton Was Not Entitled to a Directed Verdict of Acquittal on His Entrapment Defense and Thus No Palpable Error Occurred.

Alternatively, Saxton seeks entry of a judgment of acquittal on the grounds that the Commonwealth failed to disprove entrapment and thus he was entitled to a directed verdict. He posits that there was no evidence that he had in the past, would have on September 7, 2006 or would in the future traffic marijuana at the Days Inn or any other location within 1,000 yards of the school but for police entrapment. He readily acknowledges that this argument was not presented to the trial court and seeks palpable error review.

KRS 505.010 defines entrapment as follows:

(1) A person is not guilty of an offense arising out of proscribed conduct when:
(a) He was induced or encouraged to engage in that conduct by a public servant or by a person acting in cooperation with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution; and
(b) At the time of the inducement or encouragement, he was not otherwise disposed to engage in such conduct.
(2) The relief afforded by subsection (1) is unavailable when:
(a) The public servant or the person acting in cooperation with a public servant merely affords the defendant an opportunity to commit an offense; or
(b) The offense charged has physical injury or the threat of physical injury as one (1) of its elements and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
(3)The relief provided a defendant by subsection (1) is a defense.

Because entrapment is a defense, the “Burden of Proof — Defenses” statute, KRS 500.070, is applicable. That statute provides in subsection (1) as follows:

The Commonwealth has the burden of proving every element of the case beyond a reasonable doubt, except as provided in subsection (3). This provision, however, does not require disproof of any element that is entitled a “defense,” as that term is used in this code, unless the evidence tending to support the defense is of such probative force that in the absence of countervailing evidence the defendant would be entitled to a directed verdict of acquittal.

Thus before the Commonwealth can be deemed to have the burden of disproving a defense, the evidence supporting that defense must be of such probative force that if the Commonwealth does not meet it with countervailing evidence, the defendant would be entitled to a directed verdict of acquittal. In fact, as Saxton maintains, citing Wyatt v. Commonwealth, 219 S.W.3d 751 (Ky.2007), it is only after the defendant has shown that there is evidence from which a rational jury could conclude that he was induced by the government to commit a crime he was not otherwise predisposed to commit, that the burden shifts to the Commonwealth. The defendant need not testify in order to invoke the entrapment defense (Saxton did not testify in this case) but there must be sufficient other evidence of record to justify an instruction on entrapment, Wyatt, supra or, in this case, evidence of “probative force” to justify the directed verdict of acquittal under KRS 500.070(1) to which Saxton claims he was entitled.

Significantly, Saxton cites to no probative evidence of record that would support his entrapment defense, requiring the burden to shift to the Commonwealth. Saxton’s suggestion to the contrary notwithstanding, the mere fact that the confidential informants set up the drug transaction for a location within 1,000 yards of a school does not suffice as probative evidence of entrapment to drug traffic in violation of KRS 218A.1411. On the contrary, the evidence plainly shows that Saxton was predisposed to traffic illegal drugs; he had access to the drugs, acquired them and came prepared to sell them at the location suggested by the confidential informants, with all the risks that location entailed. Moreover, there is nothing from which a rational jury could conclude that Saxton’s conduct was induced by the government and he would not have otherwise sold marijuana within 1,000 yards of a school.

Perhaps aware of the deficiencies in any proof of entrapment, Saxton states, rather confusingly, that it “logically follows” that if the Commonwealth fails to produce any evidence that “the defendant was disposed to commit the criminal act prior to first being approached by government agents”, a directed verdict of acquittal is in order.

This is not logical nor is it Kentucky law. As explained above, the burden of producing, or at least identifying, probative evidence of entrapment rests in the first instance with the defendant and Saxton does not articulate any way in which he met that burden by citing the requisite evidence of probative value either to the trial court on a directed verdict motion or even to this Court as a premise for palpable error review.

Palpable error review presupposes that an error has occurred but that it was not properly preserved for our review. Kentucky Rule of Criminal Procedure 10.26. As noted, no error occurred with respect to Saxton’s alleged entrapment defense given the plain language of KRS 500.070(1). The burden simply never shifted to the Commonwealth to disprove entrapment.

CONCLUSION

Appellant Orlando Saxton’s arguments for imparting a “knowing” mental state to the school proximity circumstance expressed in KRS 218A.1411 are unavailing. The plain language of the statute contains no mens rea and this legislative choice to impose harsher penalties for otherwise unlawful trafficking in a particular location or zone, without regard to the trafficker’s knowledge regarding the proximity of a school, offends neither Kentucky law nor constitutional principles. Accordingly, Saxton’s KRS 218A.1411 trafficking conviction is not subject to reversal on the grounds that the Commonwealth did not prove his knowledge regarding the proximity of the drug transaction to Graves County High School. As for his entrapment defense, Saxton is not entitled to palpable error review because no error occurred. Pursuant to KRS 500.070(1), the burden of disproving the defense never shifted to the Commonwealth and, consequently, even if Saxton had moved for a directed verdict on that ground it would have necessarily been denied. Where there is no error, there can be no palpable error. We therefore affirm the judgment and sentence imposed by the Graves Circuit Court.

All sitting.

All concur.

      . This provision has been expanded, retitled "Distribution or manufacturing in or near schools and colleges” and is now codified at 21 U.S.C. § 860.

      . The Kentucky Penal Code revision was in draft form when comprehensive federal drug abuse prevention and control legislation was adopted in 1970 and became a model for the Uniform Controlled Substances Act. That uniform act was the basis for KRS Chapter 218A adopted by the Kentucky General Assembly in 1972. R. Lawson & W. Fortune, Kentucky Criminal Law § 18-l(a)(l) (1998) (Lawson & Fortune). KRS 218A. 1411 was adopted in 1992 but, as noted, closely follows a comparable federal statute.

      . As commentators have noted, the penalties for other trafficking crimes in Chapter 218A are “sufficiently high to limit the applicability of this offense to cases involving first-time offenders in third-degree trafficking or trafficking in small amounts of marijuana....” Lawson & Fortune, § 18 — 2(a)(3).

      . This is a partial quote from Wyatt which cited the following from Commonwealth v. Day, 983 S.W.2d 505, 508 (Ky.1999): "where the government has induced an individual to break the law and the defense of entrapment is raised, the prosecution must prove beyond a reasonable doubt that the defendant was disposed to commit the criminal act prior to first being approached by government agents" (citing Jacobson v. United States, 503 U.S. 540, 549, 112 S.Ct. 1535, 118 L.Ed.2d 174 (1992)). Inducement occurs when police or someone acting in cooperation with them conceives a "criminal design” and lures another into committing an offense he was not otherwise disposed to commit. 983 S.W.2d at 508.