      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-09-00189-CV



                                  Rebecca Svoboda, Appellant

                                                 v.

                        Larry Svoboda and Maggie Svoboda, Appellees


      FROM THE DISTRICT COURT OF MILLS COUNTY, 35TH JUDICIAL DISTRICT
          NO. 08-07-6041, HONORABLE STEPHEN ELLIS, JUDGE PRESIDING



                            MEMORANDUM OPINION


               Appellees Larry and Maggie Svoboda filed a petition for grandparent possession and

access and sought to be named managing conservators of L.R.S., L.K.S., and C.T.S., the children

of their son Kevin Svoboda, who is deceased, and appellant Rebecca Svoboda.1 The trial court

ordered that Larry and Maggie be awarded possession of the children for specified periods during

the Christmas, spring break, and summer holidays and appointed Larry and Maggie as possessory

conservators of the children “during their court-ordered periods of possession.” Rebecca appeals,

arguing that the trial court abused its discretion in naming Larry and Maggie possessory conservators

and in granting Larry and Maggie’s petition for grandparent access. We reverse and dismiss in part

and reverse and render in part.




       1
         Because the parties share a common surname, we will refer to them by their first names to
avoid confusion.
                                         BACKGROUND

               Kevin and Rebecca were married in 1990. During their marriage, they had three

children, L.R.S., L.K.S., and C.T.S. At the time of Kevin’s death in 2007, the children were aged

eight, five, and three. On July 21, 2008, Kevin’s parents, Larry and Maggie, filed their original

petition seeking to be named sole managing conservators of the children based on their belief that

Rebecca’s care of the children subjected them to an environment that presented a serious risk to their

physical health and emotional well-being. In the alternative, Larry and Maggie sought grandparent

access for visitation, arguing that denying them access to the children would significantly impair the

children’s physical health and emotional well-being.

               The trial court held a hearing on February 25, 2009. During the first part of the

hearing, the trial court heard testimony concerning the issue of Larry and Maggie’s standing to bring

an original suit to be named managing conservators of the children. See Tex. Fam. Code Ann.

§ 102.004(a)(1) (providing that grandparents may file original suit requesting managing

conservatorship if they produce satisfactory proof that order requested is necessary because child’s

present circumstances would significantly impair child’s physical health or emotional development).

               Maggie testified that although she and her husband live in North Dakota, a great

distance from Rebecca and her children in Mills County, they had always been involved in the

children’s lives and had a close relationship with them.2 She stated that she and Larry made frequent

visits to Texas to help Kevin and Rebecca when they were moving and making home repairs,




       2
          During the first years of their marriage before they moved to Texas, Kevin and Rebecca
lived close to his parents, first in North Dakota and later in Minnesota.

                                                  2
particularly after Kevin was diagnosed with cancer, and that they helped Rebecca financially after

Kevin died. Maggie testified that she believed she was being forced out of the children’s lives in a

way that was damaging to the children and that preventing her from having access to the children

would impair their emotional and physical development.3 She further testified that she had concerns

about L.R.S. regarding a possible but unsubstantiated incident of sexual abuse by a male child at her

daycare. Maggie stated that she had been given no information regarding the incident, but she

worried that the environment L.R.S. is in may be dangerous because L.R.S. might not be receiving

counseling and might “never be mentally coping in the world.”4 She explained that she had no way

       3
           Maggie testified:

       We’re very close to the children and we love them and they love us. And this is all
       we have left of Kevin. And they need our closeness, be[cause] they lost their daddy.
       If they had any questions about their father, we could answer if they wanted to. . . .
       And it would hurt them deeply not to be able to see us again. They have lost their
       father already. . . . That is just very, very difficult for children to have to cope with.
       4
         At the hearing, the subject of L.R.S.’s prior abuse was raised when Maggie testified that
she had read the family grief counselor’s notes from Rebecca’s session, which stated that Rebecca
“is concerned for [L.R.S.] who has been reluctant to go to daycare or spend time with her male
cousins. [Rebecca] is concerned that something has triggered her daughter’s past molestation by a
male peer at daycare.” Maggie was then questioned further regarding her concerns that the incident
had not been dealt with appropriately:

       Q.       Now, we have a stack of counseling notes that are going to be available to the
                Court later on. Possibly this has been addressed, but we have no way of
                knowing, do we?

       A.       No, we don’t, sir.

       Q.       We don’t know whether this was from a lack of supervision—

       A.       No, sir.

       Q.       —or who may have molested her or anything?

       A.       No, sir.

                                                   3
of knowing whether L.R.S. was receiving the therapy she needed. She further stated that Rebecca

had cut off her home telephone line and did not stay in frequent contact with her and Larry.

               Asked about the event that precipitated their filing the petition for conservatorship,

Maggie explained that in March 2008 she and Larry traveled to Texas and attempted to see the

children. She recounted that Rebecca refused to let them see the children unless they signed “a

paper” stating that they agreed not to medicate the children or remove them from Brown or Mills

County. Maggie testified that she did not sign the paper because Rebecca’s own parents had not

been required to do so and because she felt that, by signing it, she would be admitting guilt for

having overmedicated the children in the past.

               Maggie also testified about the children’s performance in school. She stated that she

believed L.R.S. had been diagnosed with dyslexia and that both L.R.S. and L.K.S. had been held

back a year in school. Asked whether she thought not passing in school reflected something about

their environment that may be endangering the children’s emotional and physical development,

Maggie answered:


       Yes, I do. I don’t believe they are getting the rest they should have. They have to get
       up way too early in the morning. They don’t get their rest or the time to do the
       schoolwork that they need to do. [L.R.S.] has all of these chores that she has to do
       when she gets home and chores before she goes to school. And they have to get up
       at 5:00 in the morning in order—they had to get up at 5:00 in the morning in order
       for [Rebecca] to be at work at 8:00.


She stated that the children’s teeth were not well taken care of and that often they did not have

toothbrushes or they had to share toothbrushes. Finally, Maggie discussed the emotional support that

she and her family would offer the children to help them deal with their father’s death, noting that

                                                 4
Rebecca did not want her or Larry to speak to the children about their father because she felt that it

would upset them too much.

               Larry testified, in very general terms, that he believed depriving the children of a

relationship with him and Maggie would significantly impair the children’s emotional and physical

well-being. Larry and Maggie’s son Shelley and daughter Petrina also testified, stating that Larry

and Maggie had been an important part of the children’s lives. They testified, also in very general

terms, that they believed it would significantly impair the children’s emotional well-being to deny

them time with their paternal grandparents. On cross-examination, both Shelly and Petrina testified

that Rebecca had never denied them access to the children and that they had always had a fairly good

relationship with Rebecca.

               At the close of this testimony, the trial court ruled on the standing issue, finding that

Larry and Maggie had met the standing requirements of the Texas Family Code because they had

shown by a preponderance of the evidence that denial of possession or access to the children would

significantly impair the children’s emotional well-being. The court further found, however, that

there was no evidence that Rebecca was unfit as a mother or that the children were in any

physical danger.

               During the second portion of the hearing, the trial court heard evidence on the issues

of conservatorship and possession.        Rebecca testified extensively concerning her strained

relationship with her in-laws, particularly Maggie, and about her efforts to ensure that Larry and




                                                  5
Maggie’s visits with her children conformed with how she and Kevin wished to raise their children.5

She also discussed how the parties had struggled to agree to a visitation schedule after Kevin passed

away and that she repeatedly avoided Larry and Maggie’s requests to have the children visit them

in North Dakota because she felt the children were not old enough to travel that far by themselves.

Rebecca also described her version of the events that led to Larry and Maggie’s filing their petition

for conservatorship and access. She said that Larry and Maggie had traveled to Texas in March to

see the children and a dispute arose when they refused Rebecca’s request that they agree in writing

to certain conditions that she and the family’s grief counselor had determined were necessary for

appropriate visitation to occur. The two subsequent visits were supervised at the Family Services

Center. Larry and Maggie both acknowledged on cross-examination that unsupervised visits would

have been possible if they had agreed to the guidelines that Rebecca had requested.6

               Rebecca also responded to Maggie’s testimony that the children were performing

poorly in school. She stated that L.R.S. had attention-deficit disorder, not dyslexia; that none of her

children had been held back in school; and that all of the children had satisfactory report cards and

       5
           Rebecca repeatedly stated that Maggie feels “like she needs to be in control of every part
and person in her life. And she is not willing to respect the fact that I am these kids’ mother.” The
trial court heard a great deal of testimony regarding Rebecca’s concerns that Maggie and Larry gave
the children toys and allowed them to watch television programs that she felt were inappropriate and
inconsistent with her religious beliefs; that Maggie had overmedicated or provided inappropriate
medication to the children; and that Maggie and Larry made comments to the children about their
father that upset them.
       6
           The document that Rebecca had requested Larry and Maggie to sign stated that Maggie,
in order to visit with the children, had to agree: (1) not to medicate the children for any reason
without prior consent from Rebecca; (2) not to allow the children to leave Mills or Brown County;
(3) not to have any negative discussions utilizing dramatic expressions or make statements that made
the children feel guilty about their father’s death; and (4) to abide by Rebecca’s decisions regarding
toys, movies, and clothing.

                                                  6
were performing at or above their grade level. Rebecca further testified that she and her children

were very involved in their church, had an “amazing” support system, and met weekly with a

counselor for several months after Kevin passed away. Rebecca stated that the children had all been

released from the counselor’s care because of their progress. She testified that although she wanted

her children to have a relationship with Kevin’s family, she felt that she should be able to decide

what visitation would be appropriate and what boundaries should be set. Rebecca acknowledged that

although she had disconnected the telephone line at her house, Maggie and Larry could still contact

her by e-mail and reach her and the children on her cell phone.

               After both sides rested, the trial court ruled on the conservatorship issue. The court

named Rebecca sole managing conservator and named Larry and Maggie possessory conservators

during the times of their possession, beginning with a three-day visitation during the 2008 Christmas

holiday. The court ordered that Larry and Maggie be granted all the privileges and powers of

possessory conservators under the family code during their periods of possession, with the caveat

that they could not give the children any medication without Rebecca’s prior approval, except in an

emergency. This ruling was memorialized in the court’s final written order, which granted Larry and

Maggie possession of the children during each Christmas and spring break and for two weeks during

the summer, as well as access through monthly telephone calls during every month in which no

periods of possession were ordered. Rebecca appeals, arguing that the trial court erred in (1) naming

Larry and Maggie possessory conservators, (2) determining that Larry and Maggie had standing to

bring suit for conservatorship, (3) awarding Larry and Maggie court-ordered periods of possession




                                                 7
and access, and (4) finding that Rebecca was a fit parent but then failing to apply the presumption

that a fit parent acts in her child’s best interest.


                                     STANDARDS OF REVIEW

                Whether a party has standing to bring suit is a legal question that we review de novo.

See Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998). In Texas, standing in the

context of a suit affecting the parent-child relationship is governed by the family code; a party

seeking relief in such a suit must plead and establish standing within the parameters of the language

used in the code. See Tex. Fam. Code Ann. §§ 102.003-.007 (West 2008). We review the trial

court’s determination of a party’s standing to file a suit affecting the parent-child relationship by

construing the pleadings in favor of the petitioner and looking to the pleader’s intent. In re M.J.G.,

248 S.W.3d 753, 757 (Tex. App.—Fort Worth 2008, no pet.); In re SSJ-J, 153 S.W.3d 132, 134

(Tex. App.—San Antonio 2004, no pet.).

                We apply an abuse-of-discretion standard in reviewing a trial court’s determination

of grandparent access or possession under section 153.433 of the family code. In re J.P.C.,

261 S.W.3d 334, 335-36 (Tex. App.—Fort Worth 2008, no pet.). A trial court abuses its discretion

when it acts arbitrarily or unreasonably, or without reference to any guiding rules or principles.

In re J.R.D., 169 S.W.3d 740, 743 (Tex. App.—Austin 2005, pet. denied). A trial court has no

discretion in determining what the law is or applying the law to the facts. Walker v. Packer,

827 S.W.2d 833, 840 (Tex. 1992). Therefore, a trial court abuses its discretion when it grants access

to a grandparent who fails to meet the statutory requirements of section 153.433. J.P.C., 261 S.W.3d

at 336.

                                                       8
                                          DISCUSSION

               In her first and second issues, Rebecca argues that Larry and Maggie lacked standing

“to sue for custody—i.e., sole managing conservatorship, joint managing conservatorship, or

possessory conservatorship,” and that the trial court therefore erred in naming Larry and Maggie

possessory conservators. Larry and Maggie sought by their original petition to be named sole

managing conservators of the children. The trial court, after hearing the testimony of Larry and

Maggie and their children, Shelley and Petrina, found that “the grandparents have shown and

established by the preponderance of the evidence that that denial of possession or access to their

grandchildren would significantly impair the grandchildren’s emotional well-being.” Accordingly,

the court determined that Larry and Maggie had standing to file an original petition seeking

managing conservatorship.

                 As an initial matter, we note that the trial judge’s oral findings and written order

both reflect that he ruled on the standing question under section 153.433 of the family code.

Section 153.433, as will be discussed in connection with Rebecca’s remaining issues on appeal,

governs the circumstances under which grandparents may seek possession of or access to their

grandchild contrary to the parent’s wishes. See Tex. Fam. Code Ann. § 153.433 (requiring, among

other elements, that grandparent prove by preponderance of evidence that denial of possession of or

access to child would significantly impair child’s physical health or emotional well-being). A

grandparent’s standing to bring an original suit affecting the parent-child relationship, on the other

hand, is governed by section 102.004(a) of the family code, which requires that the petitioner

present satisfactory proof that “the order requested is necessary because the child’s present



                                                  9
circumstances would significantly impair the child’s physical health or emotional development.”

Id. § 102.004(a)(1). Nonetheless, because it is clear from the context that the trial judge intended

to make the requisite finding related to the standing issue, we will also treat the trial court’s finding

as one made under section 102.004—i.e., that Larry and Maggie had standing to bring the

conservatorship suit because the children’s present circumstances would significantly impair their

emotional development. See id. § 102.004(a)(1).

                We disagree with the trial court, however, that the evidence supports Larry and

Maggie’s standing to file an original suit seeking conservatorship of the children. “[A] grandparent

has standing to bring a suit affecting the parent-child relationship only in certain extreme

circumstances.” Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App.—San Antonio 1990,

writ denied). The legislature, recognizing the potential for disruption posed by the filing of an

original suit for conservatorship, set a high burden for petitioners to meet in grandparent-initiated

suits. See, e.g., Whitworth v. Whitworth, 222 S.W.3d 616, 622 (Tex. App.—Houston [1st Dist.]

2007, no pet.) (noting that “the statutory scheme assures that grandparents are not entitled to disrupt

the child’s family life and initiate suits for managing conservatorship except in limited

circumstances); Harrison v. Harrison, 734 S.W.2d 737, 740-41 (Tex. App.—Eastland 1987, no writ)

(“There is a significant difference between filing an original proceeding which could disrupt the

children’s relationship with their parents and intervening in a pending suit in which that relationship

had been sufficiently interrupted to cause the filing of a suit requiring the courts to decide what

decree would be in the children’s best interest.”).




                                                   10
               In determining standing, we examine the children’s “present circumstances” as of

July 21, 2008, the date Larry and Maggie filed their petition. See In re Vogel, 261 S.W.3d 917, 922

(Tex. App.—Houston [14th Dist.] 2008, no pet.) (citing Texas Ass’n of Bus. v. Texas Air Control

Bd., 852 S.W.2d 440, 446 n.9 (Tex. 1993)). The trial court found that the children were not subject

to any physical harm, and Larry and Maggie do not contest this finding. As to the children’s

emotional development, the record does not contain more than a scintilla of evidence that the

children risked significantly impaired emotional development in their present circumstances. The

children’s “present circumstances” entailed residing with their mother, whom the trial court

determined to be a loving and “fit” mother, and having limited contact with their paternal

grandparents. Although Larry and Maggie testified that they believed it was in the children’s best

interest for them to have contact with their late father’s family and that depriving the children of a

relationship with their paternal grandparents would be harmful to the children’s emotional

well-being, the record establishes that the children were not completely deprived of contact with their

father’s family.   On the contrary, Maggie testified that she had access to the children by

phone—including Rebecca’s cell phone—and that, even after the dispute in March 2008, she and

Larry were permitted to have supervised visitation with the children at the Family Services Center.

Furthermore, Maggie acknowledged that if she had agreed to the conditions Rebecca sought to

impose on her behavior, she would have been allowed unsupervised visitation. Shelley and Petrina,

the children’s paternal uncle and aunt, also testified that they had never been denied possession of

or access to the children.




                                                  11
               In addition, Maggie’s statements that she was concerned whether the children, L.R.S.

in particular, were receiving appropriate counseling and whether they were coping with their father’s

death are not evidence that the children’s present circumstances posed a significant threat to their

emotional development. Mere speculation that the children’s emotional well-being might be at risk

is not sufficient proof to confer standing under section 102.004(a). See Von Behren, 800 S.W.2d at

922-23 (grandmother’s allegation that grandchild might have been sexually abused by her father was

insufficient to confer standing).

               On this record, we conclude that the trial court erred in determining that the children’s

present circumstances posed a significant danger to their emotional development. Compare

In re M.J.G., 248 S.W.3d 753, 760 (Tex. App.—Fort Worth 2008, no pet.) (evidence of

grandparents’ significant relationship with grandchildren did not support standing under

section 102.004(a) in light of absence of testimony that children’s mother did not also perform

parenting duties or that grandparent-grandchild relationship was so essential to children’s well-being

that they would be physically or emotionally harmed if they did not live with grandparents), with

Vogel, 261 S.W.3d at 922 (grandparent had standing based on testimony that child’s father was

long-term alcoholic who could not financially provide for child’s needs and that it would be

“harmful” for child to live with his father), and In re R.D.Y., 51 S.W.3d 314, 318-19, 325

(Tex. App.—Houston [1st Dist.] 2001, pet. denied) (grandmother had standing under

section 102.004 when record showed that mother physically abused child, was homeless and

unemployed, did not feed or bathe child, and was involuntarily committed to psychiatric treatment

facility). Accordingly, we hold that Larry and Maggie lacked standing to bring their original petition



                                                  12
seeking to be named managing conservators of the children and that the trial court erred in naming

Larry and Maggie possessory conservators.7 We sustain Rebecca’s first and second issues.

                In her remaining issues, Rebecca argues that the trial court erred in granting Larry and

Maggie possession of and access to the children. Possession of or access to a child by a grandparent

is governed by the standards set forth in chapter 153 of the Texas Family Code. Tex. Fam. Code

Ann. § 102.004(c) (West 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 decision in

Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion). See In re Derzapf, 219 S.W.3d 327, 333

(Tex. 2007). The Supreme Court held in Troxel that parents enjoy a fundamental right to make

decisions concerning “the care, custody, and control of their children,” and that “so 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.” 530 U.S. at 65, 68.

                In light of Troxel, family code section 153.433 now requires that a grandparent

seeking court-ordered possession or access overcome the presumption that a parent acts in his or her

child’s best interest, meaning that the grandparent must prove by a preponderance of the evidence


        7
            The family code provides that a grandparent may not file an original suit requesting
possessory conservatorship. See Tex. Fam. Code Ann. § 102.004(b) (West 2008). Because Larry
and Maggie filed a petition for managing conservatorship, however, which resulted in the trial court
appointing Rebecca as sole managing conservator, the trial court was then permitted to appoint Larry
and Maggie possessory conservators of the children. See id. § 153.006 (West 2008) (providing that
trial court may appoint one or more possessory conservators if it appoints a managing conservator).
The necessary result of our holding that Larry and Maggie lacked standing to bring a suit for
conservatorship is that the trial court had no basis to appoint a managing conservator and, therefore,
no authority to appoint possessory conservators.

                                                   13
that denial of access to the child would significantly impair the child’s physical health or emotional

well-being. Tex. Fam. Code Ann. § 153.433(2); Derzapf, 219 S.W.3d at 333. “This high threshold

exists so that a court will refrain from interfering with child-rearing decisions made by a

parent simply because the court believes that a ‘better decision’ could have been made.” J.P.C.,

261 S.W.3d at 337. Under the statute, a trial court must presume that a fit parent acts in his or her

child’s best interest, and the court abuses its discretion if it grants access to a grandparent who has

not met this standard. Derzapf, 219 S.W.3d at 333. The Texas Supreme Court has interpreted

Troxel to mean that when there is no evidence that (1) the child’s parent is unfit; (2) the child’s

health or emotional well-being would suffer if the court defers to her decisions; and (3) the parent

intended to exclude the grandparent’s access completely, a trial court abuses its discretion by

granting grandparent access against the parent’s wishes. See In re Mays-Hooper, 189 S.W.3d 777,

778 (Tex. 2006) (per curiam).

                Rebecca argues on appeal that the Mays-Hooper analysis applies in this case, that

Larry and Maggie failed to overcome the presumption that she acted in the children’s best interest,

and that the trial court’s order granting Larry and Maggie possession and access was therefore an

abuse of discretion. We agree. As discussed in connection with Rebecca’s first two issues, the

record establishes that Rebecca is a fit parent, as the trial court expressly found, and that she did not

intend to exclude Larry and Maggie’s access to the children completely. Moreover, there is no

support for the claim that the children’s physical health or emotional well-being would be

significantly impaired if the court deferred to Rebecca’s decision to impose certain limitations on

Larry and Maggie’s visitation. There is simply no evidence that the visitation and phone access



                                                   14
Larry and Maggie had prior to filing their petition—while less frequent and more restricted than they

would have liked—was harming the children. Cf. J.P.C., 261 S.W.3d at 339 (grandparents’ opinion

that regular, unsupervised visits would be better and that it would be impossible to establish regular

visits without court order “are only reflections of the grandparents’ fears and speculations and do not

support the trial court’s finding that the grandparents overcame the statutory presumption”).

               As a fit parent, Rebecca is entitled to ask that Larry and Maggie comply with her

wishes regarding medication, appropriate toys and movies, and conversation about the children’s

father that she deems acceptable. The mere opinion of the grandparents themselves as interested,

nonexpert witnesses that they should be granted access does not overcome the statutory presumption

imposed by section 153.433, nor does it support the court’s interference with a parent’s rights.

Id. at 340. We therefore hold that the trial court abused its discretion in ordering that Larry and

Maggie be awarded possession and access. We sustain Rebecca’s remaining issues.


                                          CONCLUSION

               Having determined that Larry and Maggie lacked standing to file an original petition

for conservatorship, we reverse the portion of the trial court’s order naming them possessory

conservators of the children and dismiss their petition for conservatorship for lack of jurisdiction.

Further, because the trial court abused its discretion in awarding Larry and Maggie possession of and

access to the children, we reverse the remainder of the trial court’s order and render judgment

denying their petition for possession and access.




                                                  15
                                           J. Woodfin Jones, Chief Justice

Before Chief Justice Jones, Justices Waldrop and Henson

Reversed and Dismissed in part; Reversed and Rendered in part

Filed: October 1, 2009




                                             16
