in the Interest of J.M.T., a Child ( 2009 )


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  • Opinion filed February 26, 2009
    In The
    Eleventh Court of Appeals
    ____________
    No. 11-07-00331-CV
    __________
    IN THE INTEREST OF J.M.T., A CHILD
    On Appeal from the 259th District Court
    Shackelford County, Texas
    Trial Court Cause No. 2006-023
    OPINION
    This appeal arises from an order granting grandparent visitation. Appellants are the paternal
    grandparents of the child. They initiated the underlying proceeding by filing a petition against the
    biological parents of the child seeking to be named as the joint managing conservators of the child.
    Appellees are the maternal grandparents of the child. They intervened in the underlying proceeding
    by seeking an order granting them possession or access to the child. Appellants subsequently filed
    an amended petition seeking to terminate the rights of the child’s biological parents. In this regard,
    the biological parents of the child executed affidavits relinquishing their parental rights. Appellants
    additionally sought to adopt the child.
    The case proceeded to a final hearing that occurred on September 21, 2007. Appellees did
    not oppose appellants’ efforts to terminate the parental rights of the child’s biological parents or their
    request to adopt the child. The trial court granted the requested termination and adoption by naming
    appellants as the parents of the child at the outset of the hearing. The trial court then conducted a
    contested hearing on appellees’ request for an order providing them access to the child. Appellants
    opposed the request on the basis that, as the newly named parents of the child, they did not want to
    be subjected to a fixed, court-mandated schedule for appellees’ visitation of the child. The trial court
    granted appellees’ request for grandparent access by entering an order providing for their possession
    of the child on the first weekend of each month, a portion of the Thanksgiving and Christmas
    holidays, and one week each summer.
    Issue
    In a sole issue, appellants assert that the trial court abused its discretion by awarding
    appellees court-ordered possession of the child. We reverse and render.
    Applicable Law
    Possession of or access to a child by a grandparent is governed by the standards established
    by TEX . FAM . CODE ANN . ch. 153 (Vernon 2008). TEX . FAM . CODE ANN . § 102.004© (Vernon
    2008); In re Chambless, 
    257 S.W.3d 698
    , 700 (Tex. 2008). The specific statute applicable to this
    appeal is Section 153.433. The legislature amended Section 153.433 in 2005 in an effort to bring
    the Texas statute into compliance with the U.S. Supreme Court’s holding in Troxel v. Granville, 
    530 U.S. 57
    , 65 (2000) (plurality opinion). See In re Derzapf, 
    219 S.W.3d 327
    , 333 (Tex. 2007). The
    Court held in Troxel that parents enjoy a fundamental right to make decisions concerning “the care,
    custody, and control of their 
    children.” 530 U.S. at 65
    . “[S]o long as a parent adequately cares for
    his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the
    private realm of the family.” 
    Troxel, 530 U.S. at 68
    .
    Section 153.433(2) now requires that a grandparent seeking court-ordered access overcome
    the presumption that a parent acts in his or her child’s best interest by proving by a preponderance
    of the evidence that “denial . . . of access to the child would significantly impair the child’s physical
    health or emotional well-being.” 
    Derzapf, 219 S.W.3d at 333
    . Under the statute, a trial court must
    presume that a fit parent acts in his or her child’s best interest. 
    Id. A trial
    court abuses its discretion
    when it grants access to a grandparent who has not met this standard because a trial court has no
    2
    discretion in determining what the law is or in applying the law to the facts, even when the law is
    unsettled. Id.; In re Prudential Ins. Co. of Am., 
    148 S.W.3d 124
    , 135 (Tex. 2004).
    The parental presumption set out in Section 153.433(2) is applicable to this appeal in light
    of appellants’ status as the newly adoptive parents of the child. See TEX . FAM . CODE ANN . § 101.024
    (Vernon 2008) (“Parent,” as used in Section 153.433, is defined as “the mother, a man presumed to
    be the father, a man legally determined to be the father, a man who has been adjudicated to be the
    father by a court of competent jurisdiction, a man who has acknowledged his paternity under
    applicable law, or an adoptive mother or father.” (emphasis added)); see also TEX . FAM . CODE ANN .
    § 162.017(a) (Vernon 2008) (“An order of adoption creates the parent-child relationship between
    the adoptive parent and the child for all purposes.”). Accordingly, we review the record to determine
    if appellees satisfied the heightened requirements of Section 153.433(2).
    Analysis
    The evidence offered at the final hearing was largely uncontested. Appellees agreed that
    appellants had essentially been acting as the child’s parents for the eighteen-month period preceding
    the hearing and that they had done a good job in that role. Appellees also stated that they had a
    “good rapport and relationship” with appellants regarding visitation in the past. Appellants stated
    that they wanted appellees to continue to have a “good healthy relationship” with the child and that
    they intended to continue permitting appellees to have access to the child. However, appellants did
    not want appellees’ visitation with the child to be controlled by a fixed schedule.
    The trial court entered a finding of fact that “[d]enial of possession of the child [by appellees]
    would significantly impair the child’s emotional development.” Appellees contend that there is
    evidence that supports this finding.1 Specifically, the following exchange occurred during the direct
    examination of appellee Cynthia Thomason:
    Q. At this point in [the child’s] life would denying possession and access to you–to
    him by you and your husband, do you think that would significantly impair his
    emotional development?
    A. Yes, I do.
    1
    Appellees cite our holding in In re S.C.S., 
    201 S.W.3d 882
    , 888 (Tex. App.—Eastland 2006, no pet.), for the proposition
    that, if there is some evidence of a substantive and probative character to support the decision of the trial court, no abuse of discretion
    occurs. See In re E.A.C., 
    162 S.W.3d 438
    , 441 (Tex. App.—Dallas 2005, no pet.); In re P.J.H., 
    25 S.W.3d 402
    , 405 (Tex.
    App.—Fort Worth 2000, no pet.).
    3
    Appellees also point to evidence indicating that they had been having court-ordered visitation with
    the child on an every-other-weekend basis for the preceding twelve-month period as a result of
    temporary orders entered by the court.
    We disagree with appellees’ contention that there is evidence supporting the trial court’s
    finding. We initially note that there is no evidence that appellants intended to deny appellees from
    having possession of or access to the child. To the contrary, the evidence indicates that appellants
    would continue to permit appellees to have access to the child. The supreme court ruled in Mays-
    Hooper that an order granting grandparent visitation cannot survive the holding in Troxel if there is
    no evidence that the parent intended to completely exclude the grandparent’s access. In re Mays-
    Hooper, 
    189 S.W.3d 777
    , 778 (Tex. 2006). Furthermore, Section 153.433(2) provides:
    [T]he grandparent requesting possession of or access to the child overcomes the
    presumption that a parent acts in the best interest of the parent’s child by proving by
    a preponderance of the evidence that denial of possession of or access to the child
    would significantly impair the child’s physical health or emotional well-being
    (emphasis added).
    Thus, the “denial of possession of or access to the child” by the grandparent is an express element
    in obtaining grandparent access under the statute in contravention of a parent’s preference. Without
    evidence that appellants intended to deny appellees any possession or access to the child, the trial
    court abused its discretion by granting court-ordered visitation to appellees.
    Moreover, the evidence of significant impairment to the child’s emotional development is
    lacking. It essentially consists of an affirmative response from an interested witness (one of the
    grandparents seeking access to the child) to a question that tracked the language of the statute. As
    noted by the Texas Supreme Court in Derzapf:
    The Legislature set a high threshold for a grandparent to overcome the
    presumption that a fit parent acts in his children’s best interest: the grandparent must
    prove that denial of access would “significantly impair” the children’s physical health
    or emotional well-being. TEX . FAM . CODE § 153.433(2) (emphasis added). There
    has been no such showing here. A court may not lightly interfere with child-rearing
    decisions made by [a fit parent] simply because a “better decision” may have been
    made. 
    Troxel, 530 U.S. at 73
    , 
    120 S. Ct. 2054
    .
    219 S.W.3d at 334. In the absence of evidence elaborating how the denial of access to the
    grandparent would significantly impair the child’s physical health or emotional well-being, we
    4
    conclude that the evidence cannot overcome the parental presumption. Appellants’ sole issue is
    sustained.
    Conclusion
    This is an unusual grandparent access case because it pits one set of the child’s biological
    grandparents against the other set of biological grandparents. However, the set of grandparents that
    opposed the requested grandparent access attained the status of parents by virtue of their adoption
    of the child. There is no evidence that appellants have been or will be unfit parents to the child.
    Thus, their preference for appellees’ visitation schedule with the child must be accorded a high level
    of deference. There is no evidence that appellants intend to deny appellees access to the child.
    Furthermore, even if there was evidence that appellants intended to deny access, there is insufficient
    evidence that the denial would significantly impair the child’s well-being.
    This Court’s Ruling
    The judgment of the trial court is reversed, and judgment is rendered in favor of appellants
    on the issue of grandparent possession or access.
    TERRY McCALL
    JUSTICE
    February 26, 2009
    Panel consists of: Wright, C.J.,
    McCall, J., and Strange, J.
    5
    

Document Info

Docket Number: 11-07-00331-CV

Filed Date: 2/26/2009

Precedential Status: Precedential

Modified Date: 9/10/2015