




Opinion filed February 26, 2009











 








 




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
 

 
                                                                   O
P I N I O N
 
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. ' 102.0048 (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 Athe
care, custody, and control of their children.@ 
530 U.S. at 65.  A[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 Adenial
. . . 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 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) (AParent,@ as used in Section
153.433, is defined as Athe
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) (AAn
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 Agood rapport and relationship@ with appellants regarding
visitation in the past.  Appellants stated that they wanted appellees to
continue to have a Agood
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 A[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 youBto
him by you and your husband, do you think that would significantly impair his
emotional development?
 
A. Yes, I do.
 




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 Adenial 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 Asignificantly 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 Abetter
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 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.




[1]Appellees cite our holding in In re S.C.S., 201
S.W.3d 882, 888 (Tex. App.CEastland 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.CDallas
2005, no pet.); In re P.J.H., 25 S.W.3d 402, 405 (Tex. App.CFort Worth 2000, no pet.).


