Court of Appeals

IN THE BEST INTEREST OF JULIANNA JADE KIRKLAND, A CHILD

APPEALANTS BRIEF

JOSEPH S. KIRKLAND
PETITIONER,

VS

JENNIFER SMITH (MARTINDALE)

RESPONDENT

Petition for Review of the Decision In the District Court 223rd Judicial District Gray County, Texas for
Case Number: 07-10-00353-CV, Trial Court's Case Number 33,952

Joseph S. Kirkland
1203 Picardie
San Antonio, TX, 78219
(210) 300-5000
Petitioner

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 Table of Contents

Identity of Parties and Counsel.............................................................................................3

Brief in Opposition................................................................................................................4
Issues Presented for Review..................................................................................................7
Issue One: Mr. Kirkland has never been found to be a threat to Julianna's emotional or physical
state in the past 5 years. In fact he was granted custody of Julianna for a period of three months
because the courts found Ms. Smith guilty of family violence and her teeth needed extensive work.
Issue Two: Ms. Smith was in contempt of court many times thus why Mr. Kirkland was
constantly appearing before the court trying to enforce his right to visitation after Ms. Smith had with
held Julianna for months.
Statement Of the Facts.........................................................................................................7
Summary Of The Argument..................................................................................................10
Argument...............................................................................................................................11
Conclusion and Prayer...........................................................................................................12

Record References
Clerk's record
The pleading records consist of one (1) Clerk's Record in one (1) Volume. The Clerk's Record
is referred to herein as (CR).
Statutory Citation references to Texas Family Code
Unless otherwise indicated in this Petition for Review, all statutory references are to the Texas
Family Code.

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 Identity of Parties and Counsel
Petitioner: Joseph Kirkland

Respondent: Jennifer Smith (Martindale)

Counsel
For Petitioner: Pro se, Joseph Kirkland
1203 Picardie
San Antonio, TX 78219
(210) 300-5000

For Respondent: Joe Marr Wilson

905 S. Fillmore Ste 650
Amarillo, TX 79101
(806) 374-7758

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 Brief in Opposition
Petitioner Joseph Kirkland, San Antonio, TX, seeks a review in the judgment of trial case no.
33,952 in the interest of J.J.K. In Kirkland vs Smith, the jury court concluded in July of 2010 that it
would be in the best interest of the child (Julianna Kirkland) that Mr. Kirkland not be allowed
visitations but still provide support. Removal of parental rights from Mr. Kirkland does not seem fair,
just or in the best interest of Julianna Kirkland. Since the only cause for Mr. Kirkland and Ms. Smith to
be in court several times through out the last 6 years is because Ms. Smith kept failing to comply with
the court's orders . If Mr. Kirkland was constantly granted visitations for the last 6 years and there was
no evidence to show that the visitations have caused any damage to Julianna, why would they be
terminated now? How is being able, willing, wanting and having a history of building a healthy,
supportive, stable environment for Julianna any means for termination of parental rights? When Mr.
Kirkland has been the only source of consistency in her life. He has purchased a home and provided for
her financially for the entire existence of her life and conception. However, Mrs. Smith has admitted
and record will show has not held a job longterm in her life nor has she lived in one place for a length
of time. She failed to keep the court and Mr. Kirkland of her ever so often changing cell phone
numbers. She has a history of mental illness, family violence, failure to provide a safe or consistent
home or have any skills job skills, training or assets to provide for Julianna financially now or in the
future other then the child support Mr. Kirkland has paid. Approximately $50,000 in (6) years and
continues to pay even though he hasn't been allowed to see her in (6)months. Yet this is only a fraction
of what Mr. Kirkland has invested in the safety and well being of Julianna. He has spent nearly the
same in attorney fee's, travel expenses and court cost, simply to enforce the court ordered visitation
with Julianna he had already earned.
The Courts themselves have proven to see Mr. Kirkland's good intentions by granting him
custody of Julianna from June of 2007 through September of 2007 to get Julianna's (2 yrs old at the
time) neglected teeth repaired instead of being pulled out as she would have been without teeth until
the age of 7 or so otherwise. Mr. Kirkland has always had Julianna's best interest at heart, having
raised her from conception until she was 6months as he took care of and provided for Ms. Smith until
she ran out on him and took the baby over 500miles from there home in San Antonio. He has fought for
and won joint custody, as well as flown or driven 1000 miles round trip constantly to see her and pick
her up. He listens to her and guides her as well as provides for her physically, mentally, emotionally,
spiritually and of course financially.
There are many men out there that are called Dad, but not many Fathers. Here is a man that not
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only wants to be a father for a little girl that desperately needs his love and guidance, but has been a
father and provided for her since conception. He has provided constant love, support, and guidance
that every child needs from their parents. He has succeeded in every aspect of his life, from academics
where he was inducted into the National Honor Society, straight A student, took honors classes for
advanced placement and dual credit for college. He put himself through school part time as he worked
full time at National Oil well for nearly 5 years, where he was promoted numerous times, lead many
teams consisting of the plant managers, Staff and CEO., was in charge of Production Planning for the
entire plant of 300+ men and women at the age of 22. He was promoted to Outsource Coordinator
where he had millions of dollars going through his hands, he also trained oversaw personnel to payroll
a staff of 100's . He was a special Honorary member of the Top Of Texas Kiwanas club as an
adolescent for his extraordinary commitment, work and dedication to raising $1,000's for the Children's
Miracle Network to help kids with Cancer. Mr. Kirkland stepped up at the early age of six and started
raising his two little sisters during his parents separation and his mothers depression. Mr. Kirkland
continues a strong relationship with his two younger sisters who he helped raise. One of which is now
an airline stewardess also successful at an early age. The other an exceptionally loving mother of two,
works part time and full time homemaker. Mr. Kirkland was also a General Manager and part owner of
Para Driving Aids, where he used state of the art technology to build custom vehicles for disabled
citizens and wounded soldiers. Mr. Kirkland helped 1,000's of individuals regain their independence
including many of those who lost there own while serving oversees to protect ours. Mr. Kirkland has
been awarded many times for his contribution in both time, effort and equipment from numerous
charities and organizations, from the Muscular Dystrophy Society, A.L.S. Society, Kinetic Kids, Grid
Iron Hero's, Sheriff's and Police organizations, charities' for families of fallen soldiers, Deputy's and
Policemen to name a few. Mr. Kirkland has an extensive and long work history of helping the Veterans
and disabled community. He is a a business owner, inventor, leader, landlord, property owner,
Christian, stepfather to another 4yr old girl, who he raises as his own. He also has another daughter on
the way.
Mr. Kirkland prays that the court will look in between the lines to see through the manipulating
tactics of Ms. Smiths attorney and consider the best interest of Julianna Jade Kirkland, a child and
allow her and Mr. Kirkland the right to continue their incredible and wonderful father daughter
relationship they have maintained throughout the years despite numerous attempts on Ms Smiths part to
alienate her from Mr. Kirkland. Ms. Smith has a history of disregarding the courts orders, Julianna's
wants and needs,failed to provide her on court appointed visitations where he flew hundreds of miles
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each way days after confirming with Mrs Smith on the phone days before. She failed to ensure proper
diet and hygiene, failed to maintain a job, failed to provide her a safe and consistent living
environment, endangered her safety and well being. Ms. Smith has been convicted of family violence
by the same court where protective and restraining orders were also for Julianna's and Mr. Kirklands
protection. The same court where Ms. Smith is now awaiting conviction for assault causing bodily
injury against a family member of Julianna's, her paternal grandmother, Mr. Kirkland's mother, Didi
Hansen.

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 Issues Presented for Review
ISSUE ONE: Mr. Kirkland has never been found to be a threat to Julianna's emotional or
physical state in the past 5 years. In fact he was granted custody of Julianna for a period of three
months because the courts found Ms. Smith guilty of family violence and her teeth needed extensive
work.
ISSUE TWO: Ms. Smith was in contempt of court many times thus why Mr. Kirkland was
constantly appearing before the court trying to enforce his right to visitation after Ms. Smith had with
held Julianna for months.

STATEMENT OF FACTS
Mr. Kirkland has constantly had to spend unnecessary funds simply to enforce his rights to
visitation to Julianna for the past 5 years, which he had already earned in court with Ms. Smith. Each
time Mr. Kirkland and Ms. Smith went to court was to enforce her to follow the court order, the
outcome was the same each time, Mr. Kirkland would gain more access to Julianna. He would have
visitation for 10 days every odd month in which Mr. Kirkland would pick up Julianna in Mclean and
Ms. Smith would have to pick up Julianna in San Antonio after the ten day visit. Ms. Smith would
comply for a month or so and then start to with hold Julianna for month at a time once again until they
would be before the court once more. Mr. Kirkland had brought up issues of negligence on Ms. Smith's
part because of Julianna's poor dental history. The courts gave Mr. Kirkland custody of Julianna so that
he can correct the extensive damage done to her teeth. She was supposed to reimburse him her half of
the cost and to this date never has, in fact upon his last visitation with Julianna, she had several more
cavities and had at least two of her teeth removed that had previously been repaired. Ms. Smith lied in
court by saying she had taken Julianna to the dentist and checked out fine. However Julianna's dental
records with Dr. Johnson in Pampa show Julianna had new cavities a day before her statement.
In the mean time there was a protective and restraining order put in place for Julianna and Joe
Kirkland against Ms. Smith, at the time Mrs. Martindale and her husband Dusty Martindale. These
orders were to be in place for at least one year. Three months later Judge Waters who granted the
protective orders granted Ms. Smith custody of Julianna thus contradicting himself. She had been
found guilty of family violence by him previously. From the first mediation up until now Ms. Smith
has had no true intentions of following court orders thus why Mr. Kirkland finally had to file for
custody of Julianna rather than continue to try and enforce the visitation that Mrs. Smith had a history
of avoiding. She in fact unanimously and with out court approval or following the correct procedure,
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with held Julianna from Mr. Kirkland for a period of 9 months because she claimed to have entered
Julianna into preschool. Mr. Kirkland pointed out that the court order did not allow her to deny him
visitations, he took proper steps to dual enroll Julianna in preschool where he lives so she wouldn't
miss out. He attempted to work with Ms. Smith to avoid having to go to court again to enforce his court
ordered visitation rights.
There is overwhelming evidence of Ms. Smith's deliberate intentions to keep Mr. Kirkland and
Julianna Kirkland from each other. In the first mediation on February 6, 2007 Ms. Smith agrees to let
Mr. Kirkland have weekend visits but fails to mention to the court and Mr. Kirkland that she was
moving to N. Carolina. Instead she sends Mr. Kirkland a certified letter the very next day stating she is
moving which would make visitations unworkable. From then on every motion that was brought forth
to the courts was an enforcement of the previous motion thus being and endless costly cycle just to see
Julianna. On March 27, 2007 the first amended agreed order in suit affecting the parent-child
relationship granted Mr. Kirkland and Ms. Smith Joint Managing Conservators of Julianna Jade
Kirkland. On May of 2007 Mr. Kirkland picks up Julianna for her first visit. During the visit Mr.
Kirkland noticed a large portion of her upper front left tooth had been broken off from obvious trauma
as she had facial bruising that coincided with her broken teeth. She was also bruised in her right check,
buttox, and fifteen- twenty bruises on her back just above the crest of her diaper. Upon returning
Julianna after their visit, to the Country Corner store where Ms. Smith requested the exchange to take
place, Mr. Kirkland and his family (mother Didi Hansen, Friend Alecia Rauch) were attacked by Ms.
Smith and about twenty family members and friends. Resulting in extensive injuries to Mr. Kirkland
and his mother, including broken bones, stitches, surgeries and countless Dr. visits as well as continued
pain and suffering. Ms. Smith actually broke Julianna's grandmothers neck. On July 9, 2007 there is a
protective order put forth against Ms. Smith and her husband and the time Dusty Martindale. The court
finds that family violence has occurred and that family violence is likely to occur in the future. The
court finds that in the best interest of Julianna's safety and welfare she stays with her father Mr. Joseph
Kirkland. According to the Texas Family Code section 71.004 Ms. Smith is prohibited from
committing family violence directed to Mr. Kirkland and should only communicate through attorneys.
This order was to be in full force and in effect until July 15, 2008.
Mr. Kirkland has Julianna in his custody from June 2007 through September 2007 in which he
has extensive dental work done on her to repair her teeth. During this time Ms. Smith gives him a hard
time releasing Julianna's dental insurance information so Mr. Kirkland has to pay for all procedures out
of pocket. It takes Julianna several, long treatments to repair the damages that Dr. Johnson concludes
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was a result of lack of proper care during the time Mrs. Smith had custody. Finally in August 2007 Ms.
Smith releases insurance information to Mr. Kirkland via her attorney to his only after he had already
filed a motion to enforce , scheduled a court date, flew over 500miles each way, from San Antonio to
Pampa to enforce the court order of her retaining insurance and giving the proper information to him.
Mr. Kirkland did not receive word until hours before trial. In October of 2007 Mr. Kirkland gets
reimbursed by the insurance company for over paying because he didn't have dental insurance
information from the beginning but was never reimbursed by Ms. Smith for half the cost of the
treatment as per agreed on their agreement order.
In September of 2007 Judge Waters gives Julianna back to Ms. Smith despite the fact that there
is still a protective order in place and was not to expire until July of 2008 in which Judge Waters was
the one who granted the order. This shows poor judgment from then Judge Waters, now retired. He
himself endangered the child Julianna Jade Kirkland by ordering Mr. Kirkland to turn Julianna over to
Mrs Smith who he had already found guilty of family violence. How was that in the best interest of the
child? Or Justice being served?This is how the court rules is the best interest of a child after the mother
Ms. Smith has been found guilty of family violence? Was Julianna's safety and well being no longer an
concern of the court? How can the court justify themselves? They don't nor did they attempt to try, her
attorney Mr. Wilson and my then attorney Mr. Woodburn, now Judge Woodburn met with then Judge
Waters in private. The final custody trial was set to take place in weeks...however, Mr. Kirkland's
counsel withdrew to take the Bench as Judge Woodburn. Mr. Kirkland was left scrambling to enforce
visitation without an attorney. During the trial of July 2010 it is ordered that Mr. Kirkland and his new
attorney cannot bring up anything from September of 2007 in order to spare the embarrassment of
contradicting themselves. He was also told he could not mention the fact that Jennifer had already been
arrested for assault causing bodily injury and that she is currently awaiting trial. He couldn't mention
his protective order against Ms. Smith for Julianna and Joseph Kirkland's safety. She had already
retaliated against him May 20, 2007 shortly after he retained counsel to prevent her from moving
Julianna to North Carolina.

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 Summary Of Argument
The courts or Mr. Joe Marr Wilson have provided no testimony as to how Petitioner has ever
endangered his child physically or emotionally, other then Mr. Wilson own personal testimony of his
opinion of Mr. Kirkland which should have been ruled as hearsay, however he was continually allowed
to lie, insult and demean Mr. Kirkland with false accusations and no evidence other then his one sided
interview of a CPS counselor who Mr. Kirkland had already had to file a complaint against for
mishandling and neglecting Julianna's case. The counselor lied to protect herself and neither Mr.
Kirkland nor his new counsel were granted enough time to cross examine the witness. To date, Mr.
Kirkland has been the only one to listen to Julianna's desires and meet her needs. He has ONLY taken
action whenever Julianna has outcried for help against abuse, neglect, and instability in the hands of her
mother Mrs. Smith. The only thing Mr. Kirkland is guilty of is loving, caring and showing concern for
the well being of his daughter. He has gone through all obstacles that the court and Ms. Smith have
thrown at him in order to maintain some a relationship with his daughter. To be penalized for being
persistent in pursuing the enforcement of his court ordered rights is a slap in the face for the judicial
system as well as Mr. Kirkland, a victim of crime, attacked and nearly beaten to death just to see his
daughter. To have to stand up for Julianna a child and also a victim at the hands of her Mother Ms.
Smith and then step dad Mr. Martindale took a great, consistent, determined loving father, only to be
punished and re victimized by the court system. This due in part because Mr. Kirkland's new counsel
was a rookie and attempting her first trial, which she later admitted she was in way over her head.
Ms. Smith repeatedly withheld Julianna from Mr. Kirkland for months at a time. Thus resulting
in Mr. Kirkland constantly having to spending unnecessary amounts of money, miss work, pay legal
and travel fees to enforce the rights he had already earned. Meanwhile consistently paying child
support in the amount of $700mo for one child, whether Mrs. Smith followed the court order or not.
The judgment from the decision of the Jury Trial courts on July 2010 should be reversed, as they did
not have proper information to make such a decision based on the fact that they were not allowed all
the information pertaining to the history of family violence in which Mrs Smith had already been found
guilty and arrested. Nor where they allowed to hear the cross examination of their witness's video
recorded statement.
Mr. Kirkland should be appointed at the minimum joint managing conservator if not sole
conservator. A father and daughter deserve to have the opportunity for a relationship. The parent-child
relationship is of such importance that is is Constitutionally protected. The law of man was made to
protect such God Given rights. Julianna and Mr. Kirkland should not be punished for not knowing
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legal procedures and for at times not being able to afford the most experience attorney, or one at all.
Argument
ISSUE ONE: Mr. Kirkland has NEVER been found to be a threat to Julianna's emotional or
physical state in the past 5 years. In fact he was granted custody of Julianna for a period of three
months because the courts found Ms. Smith guilty of family violence and her teeth needed
extensive work.
There is no factual or legal evidence to support grounds for the jury ruling for termination of
his visitation to be in the best interest of Julianna Kirkland. Mr Kirkland is a very successful
businessman whom has helped many people. He has an impeccable reputation amongst the San
Antonio community and in his field is regarded as a prodigy and one of the best in the world at helping
people regain their mobility. He has been published in magazines including National Mobility
Equipment Dealer Association's magazine Circuit Breaker, December 2006 Ed. and his vehicles were
put on the cover of Fords Mobility program brochures. In the last 7 years he has helped disabled
people get their lives back by modifying their vehicle so that they may get around in their wheel chairs.
The respondent failed to prove that Mr. Kirkland was unfit or untrustworthy of being around Julianna.
The only thing present was the opposing lawyer's opinion of Mr. Kirkland. Mrs. Smith herself
testified in court in July 2010 that Mr. Kirkland is a great father and Julianna loves visiting him in San
Antonio. If she is testifying that Mr. Kirkland has done nothing wrong to alarm her that Julianna does
not want to visit then why would she constantly stand in the way of these visitations?
ISSUE TWO: Ms. Smith was in contempt of court many times thus why Mr. Kirkland was
constantly appearing before the court trying to enforce his right to visitation after Ms. Smith had
with held Julianna for months.
If the court had upheld its protective order and if Ms. Smith had been held accountable for her
history of disregarding the court ordered visitation and her violence in a more reasonable fashion, Mr.
Kirkland would not have been facing a jury with preconceived notions, (whose members twice came
forward and said Ms. Smith and her family were manipulating the jury during bathroom breaks) And he
would not have had to hire an Attorney who had never had a jury trial against a long time pro and
veteran lawyer with a longtime relationship with the past Judge. In fact it has always been Ms. Smith
that has failed to comply with a court ordered plan. Thus Ms. Smith's rights should have been
terminated under Section 161.001 (2) if the courts were taking in consideration of the best interest of
Julianna. She has withheld Julianna up to 9months at a time. When questioned in court on July 2010 if
she had neglected to contact Mr. Kirkland on various visits she admitted that she did not respond to his
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emails in a timely manner. She also did not answer the 6pm phone call that Mr. Kirkland was supposed
to be granted every Wednesday per court order.
Conclusion and Prayer
Petitioner prays the court take the meaning and intent of the law into consideration more then the letter,
as he and Julianna have been unfairly deprived of their child-parent relationship. His rights which were
wrongfully terminated without an iota of any factual evidence against Mr. Kirkland's actions or
concerns for his daughters well being by the Court or Ms. Smith, on the contrary Ms. Smith said he is a
good father and the courts granted him temporary custody to take care of her needs which Ms. Smith
could not. For these reasons, petitioner prays this Court grant a reversal after receiving briefs on the
merits, reverse the judgment of the jury trial and remand the case for proper consideration of
Petitioner's parental rights. It is logical to believe that the trial court did not find any full legal and
factual evidence that constitutes the termination of the parent-child relationship to be in the child's best
interest, using the standard of review proper for clear and convincing evidence. Thus the Jury Trial
could not have ruled justly and the ruling should be reversed. The case should be remanded to the
court for a full analysis for Petitioner's complaints under the correct legal and factual sufficiency
standards, petitioner prays for these things in the best interest of his first child, Julianna Jade Kirkland.
Petitioner prays for general relief.
Respectfully submitted,
Joseph S. Kirkland

______________________
1203 Picardie
San Antonio,TX 78219
(210) 300- 5000

Certificate of Service
I certify that a true and correct copy of the foregoing Petition for Review was forwarded to
Joe Marr Wilson, Respondent Attorney,905 S. Fillmore Ste 650,Amarillo, TX 79101,(806) 374-
7758.- via mail.
On this the ____________ day of January, 2011
_________________________________
Joseph S. Kirkland
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