                                Fourth Court of Appeals
                                       San Antonio, Texas

                                                OPINION
                                           No. 04-12-00718-CV

                                     IN RE Kady Miranda KELLY

                                     Original Mandamus Proceeding 1

Opinion by:       Karen Angelini, Justice

Sitting:          Karen Angelini, Justice
                  Phylis J. Speedlin, Justice
                  Marialyn Barnard, Justice

Delivered and Filed: December 12, 2012

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

           On October 26, 2012, relator Kady Miranda Kelly filed a petition for writ of mandamus,

complaining of the trial court’s April 10, 2012 temporary order granting grandparent possession

and access. We conclude the trial court erred in awarding grandparent access. Therefore, we

conditionally grant mandamus relief.

                                             BACKGROUND

           This proceeding arises out of an original petition seeking grandparent access filed in the

trial court on February 14, 2012 by Sandra Hernandez and Michael Hernandez (hereinafter “the

Hernandezes). The petition seeks access to N.M.H. who is the twenty-one month old son of

1
  This proceeding arises out of Cause No. 2012-CI-02302, styled In the Interest of N.M.H., pending in the 438th
Judicial District Court, Bexar County, Texas, the Honorable Victor Negrón, Jr. presiding. However, the order
complained of was signed by the Honorable John D. Gabriel, presiding judge of the 131st Judicial District Court,
Bexar County, Texas.
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Michael Anthony Hernandez, II, deceased (hereinafter “Michael”) and Kady Kelly (hereinafter

“Kady”). Michael died on January 9, 2012. On March 14, 2012, the trial court held a hearing on

the temporary order in which the Hernandezes sought access to N.M.H. The Hernandezes and

Kady each testified at the hearing. At the conclusion of the hearing, the trial court granted the

Hernandezes supervised access. This petition for writ of mandamus ensued.

                                           ANALYSIS

       I.      Standard of Review

       Mandamus will issue only to correct a clear abuse of discretion for which the relator has

no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)

(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).

“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,”

and “a clear failure by the trial court to analyze or apply the law correctly will constitute an

abuse of discretion.” Walker, 827 S.W.2d at 840. To satisfy the clear abuse of discretion

standard, the relator must show “that the trial court could reasonably have reached only one

decision.” Id. The Texas Supreme Court has held that a trial court abuses its discretion when it

grants access to a grandparent who has not met the standard set out in section 153.433 of the

Texas Family Code. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig. proceeding).

Furthermore, a parent lacks an adequate remedy by appeal when a trial court errs in awarding

grandparent access. See id. at 335. Therefore, mandamus relief is available to review an order

that grants grandparent access. See id.

       II.     Access to Grandchild Under Family Code Section 153.433

       In order for a trial court to award a grandparent access to a grandchild, the strict

requirements set out in section 153.433 of the Texas Family Code must be met. TEX. FAM. CODE



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§ 153.433 (West Supp. 2012).         In part, section 153.433(a) requires that the grandparent

requesting possession of or access to the child overcome “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.” Id. § 153.433(a)(2). The Texas Supreme Court has emphasized that

section 153.433(a) imposes a high threshold for the grandparent to overcome the presumption

that a fit parent acts in his or her child’s best interest. Derzapf, 219 S.W.3d at 334.

       Therefore, in order for the trial court to have the discretion to award grandparent access,

the Hernandezes had to overcome the statutory presumption that Kady is acting in the best

interest of N.M.H. by proving by a preponderance of the evidence that denying the Hernandezes

access to N.M.H. would significantly impair N.M.H.’s physical health or emotional well-being.

See TEX. FAM. CODE § 153.433(a)(2). At the hearing, Mrs. Hernandez testified that she thinks it

is in N.M.H.’s best interest to continue a relationship with the Hernandezes. She further testified

that without access to N.M.H., they will never have a close relationship with him and won’t be

able to share pictures of his dad. Mr. Hernandez testified they had watched N.M.H. “quite a few

times.” He further testified that he believed it would not be in N.M.H.’s best interest to have

them cut out of his life and that he would benefit from a relationship with them. In response to

the petition for writ of mandamus, the Hernandezes contend the denial of access to N.M.H.

would significantly impair N.M.H.’s emotional well-being and there was evidence presented

regarding the close relationship the Hernandezes share with N.M.H.

       However, while we acknowledge the Hernandezes each testified as to their close

relationship with N.M.H., a review of the record indicates the evidence at the hearing failed to

meet the strict requirement that denying the Hernandezes access to N.M.H. would significantly



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impair his physical health or emotional well-being. See TEX. FAM. CODE § 153.433(a)(2).

Therefore, we conclude the Hernandezes did not meet their burden to warrant the trial court’s

interference with Kady’s parental rights by awarding the Hernandezes court-ordered access to

N.M.H.    Accordingly, the trial court abused its discretion when it granted access to the

Hernandezes when they had failed to meet the required standard. See Derzapf, 219 S.W.3d at

333.

       III.    Waiver

       The Hernandezes assert Kady waived her right to mandamus relief by delaying filing her

petition for writ of mandamus in this court. When analyzing whether a relator’s delay in filing a

petition for writ of mandamus prevents the writ from being issued, the Texas Supreme Court has

held that “[a]lthough mandamus is not an equitable remedy, its issuance is largely controlled by

equitable principles. One such principle is that ‘[e]quity aids the diligent and not those who

slumber on their rights.’” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig.

proceeding) (quoting Callahan v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941) (orig.

proceeding)). In determining if a relator’s delay prevents the issuance of the writ, we analogize

to the doctrine of laches. In re ExxonMobil Prod. Co., 340 S.W.3d 852, 860 (Tex. App.—San

Antonio 2011, orig. proceeding [mand. denied]). A party asserting the defense of laches must

show: (1) unreasonable delay by the other party in asserting its rights, and (2) harm resulting to

the party as a result of the delay. See id. Additionally, because this is a proceeding regarding

access to a child, the primary consideration is the best interest of the child. See TEX. FAM. CODE

§ 153.002 (providing that “[t]he best interest of the child shall always be the primary

consideration of the court in determining the issues of conservatorship and possession of and

access to the child”); § 153.433.



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       As to the first consideration of whether Kady has unreasonably delayed in seeking relief

from the trial court’s order, Kady contends that although she requested the transcript of the

proceeding, she did not receive the transcript until July 3, 2012. However, Kady does not

explain the almost four month delay from the time the transcript was received until the petition

was filed in this court. Therefore, we turn to whether the Hernandezes have established the

necessary showing of harm. The Hernandezes contend that if the trial court’s order is vacated it

would cause harm to N.M.H. because the bond between him and the Hernandezes has only

grown stronger. However, we conclude that the allegation of harm made by the Hernandezes is

not sufficient in this case to warrant a finding that it is in N.M.H.’s best interest to conclude that

Kady waived her right to mandamus relief.

                                          CONCLUSION

       Based on the foregoing analysis, we hold the trial court clearly abused its discretion in

granting the Hernandezes access to N.M.H. Accordingly, we conditionally grant the petition for

writ of mandamus. The writ will issue only if the trial court fails to comply within fourteen days.

                                                       Karen Angelini, Justice




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