                              NUMBER 13-08-00177-CV

                              COURT OF APPEALS

                   THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG

                       IN THE MATTER OF D.K.B., A CHILD


    On appeal from the 25th District Court of Lavaca County, Texas.


                           MEMORANDUM OPINION
         Before Chief Justice Valdez and Justices Garza and Vela
                 Memorandum Opinion by Justice Garza
       Appellant, Cassie Cumby, is the mother of D.K.B., a four-year-old child. In this

appeal, Cumby challenges the trial court’s order granting regular unsupervised visitation

with D.K.B. to the child’s paternal grandmother, Shirley Farrior. See TEX . FAM . CODE ANN .

§ 153.433 (Vernon 2008) (setting forth criteria for grandparent possession and access to

a child). By a single issue, Cumby contends that the trial court abused its discretion. We

reverse and render.

                                       I. BACKGROUND

       D.K.B. was born in December of 2004, approximately two months after her father,

T.B., died in an auto accident. On April 5, 2007, Farrior, T.B.’s mother, filed her original

petition seeking grandparent visitation with D.K.B., arguing that “[d]enial of possession or

access by [Farrior] will significantly impair the physical health or emotional well-being of the
child.”1 After Cumby entered a general denial, the case proceeded to trial on July 24,

2007.

         At trial, Farrior testified that she had a “good relationship” with D.K.B. from the time

the child was born up until her second birthday. Farrior stated that she and D.K.B. would

visit with each other “usually monthly” during those two years but occasionally twice or

three times per month. On some occasions, Cumby would take D.K.B. to Farrior’s house

in Victoria, Texas, and on other occasions Farrior would travel to Cumby’s house in

Hallettsville, Texas, to visit D.K.B. Cumby was present for all of the visits. Farrior

explained, however, that the visitation pattern began to change at some point after D.K.B.’s

second birthday:

         A lot of the time, I would call, and she [Cumby] said she wouldn’t be able to
         [take D.K.B. to visit], or she wouldn’t call me back. And I would call and
         leave a message; and when she did call me back, it was kind of iffy, kind of
         when she had time, which was fine with me. But it—it just got to where I
         wasn’t getting to see her a whole lot.

Farrior acknowledged that Cumby was concerned about Farrior’s smoking cigarettes in the

presence of D.K.B.; however, Farrior denied having smoked in D.K.B.’s presence and

stated that she would agree to an order forbidding her to smoke in D.K.B.’s presence

during her visits.

         On cross examination, Cumby’s counsel directed Farrior to a response Farrior gave

to an interrogatory asking her to “[d]escribe fully each and every way that you believe or

allege that Cassie Cumby is unfit to raise [D.K.B.] without your involvement.” Farrior’s

answer was: “We do not think Cassie is unfit.” Farrior confirmed at trial that this was still

her answer. When asked if “Cassie’s been a good mom to [D.K.B.],” Farrior responded,

“Yes, as far as I—I know. I’m sure she is.” Cumby’s counsel continued:

         Q.                And she [Cumby] has—she has, within her schedule,

        1
          The petition was filed jointly by Farrior and her husband Jam es Farrior. Jam es, who was not T.B.’s
biological or adoptive father, was later rem oved as a party to the suit. See T EX . F AM . C OD E A N N . § 153.433(3)
(Vernon 2008) (providing that grandparent possession or access m ay only be granted if, inter alia, “the
grandparent requesting possession of or access to the child is a parent of a parent of the child”).

                                                          2
                      accommodated your wishes and desires to see [D.K.B.] very
                      regularly over [D.K.B.]’s life, correct?

       A. [Farrior]   Yes.

       Q.             And in fact, your real problem with what—with the kind of
                      visitation you were getting with [D.K.B.] was that Cassie
                      wouldn’t leave [D.K.B.] at your house without her being there,
                      correct?

       A.             Correct.

       On re-direct examination, Farrior agreed that she would be willing to initially do “a

series of visits with the mother’s presence,” but that she eventually wished to visit with

D.K.B. unsupervised by Cumby. Farrior’s counsel also asked:

       Q.             [U]ntil recently, you and the mother [Cumby] have actually
                      gotten along pretty well; is that correct?

       A. [Farrior]   Yes, that’s true.

       Q.             And you’re not in any way, form or fashion saying that she’s a
                      bad mother, are you?

       A.             No. She’s a good mother.

       Q.             Okay. And you believe it’s important for the child to know your
                      family and the extended family that she has . . . from her
                      father.

       A.             Yes.

Cumby’s counsel then inquired on re-cross examination of Farrior whether there was “any

reason that the child can’t know your family and your extended family through Cassie and

letting Cassie decide when those visits happen?” Farrior answered, “That would be fine.”

Farrior also admitted that, as of the time of trial, she had not contacted Cumby seeking

visitation with D.K.B. in the nearly four months since she filed her petition for grandparent

visitation in April of 2007.

       Cumby testified that she has never said “no” to a request by Farrior to visit with

D.K.B. Cumby did state that there were times where she could not accommodate Farrior’s

specific request to visit with D.K.B. at a particular time but that “we worked around it” and


                                             3
“[w]e always scheduled the next visit.” Cumby stated that she had at times contacted

Farrior herself to arrange Farrior’s visits with D.K.B. but that she no longer did so.

According to Cumby, “[w]hen the calls became less frequent, for her [Farrior] calling me

to visit with my daughter, I felt that that was fine with me, so I didn’t urge them to have any

more—to keep calling.” Cumby stated that Farrior eventually asked to have unsupervised

visits with D.K.B. Cumby testified that she responded to Farrior’s request by saying “[t]hat

I was not comfortable with [unsupervised visits]. That I drive 45 miles to let her visit with

my daughter, and I felt that I should be there in her care, be able to supervise her actions.”

Cumby further testified that she has observed Farrior smoke cigarettes in the presence of

D.K.B. and that she has “had to remind [Farrior] repeatedly not to smoke around [D.K.B.].”2

        At the conclusion of the trial, the trial court pronounced its ruling granting Farrior’s

petition. A written order was entered on August 23, 2007, which included the following

findings:

        1.      SHIRLEY FARRIOR and [D.K.B.] have a relationship which has been
                fostered by CASSIE CUMBY.

        2.      The love and affection which exists between [D.K.B.] and SHIRLEY
                FARRIOR is mutual.

        3.      The removal of [D.K.B.]’s relationship with SHIRLEY FARRIOR would
                be harmful to the child.

        4.      There is no reasonable chance that the relationship between [D.K.B.]
                and SHIRLEY FARRIOR would be maintained without a court order.

The order provided that Farrior would have possession and access to D.K.B. for one

weekend day per month until the time D.K.B. reached three years of age, at which point

the visits would extend to one weekend per month, including one overnight period. The

order also specifically enjoined Farrior from smoking in D.K.B.’s presence or allowing




        2
          W hen asked by her counsel why she did not want anyone sm oking around her daughter, Cum by
stated: “[D.K.B.] was born with com plications. She couldn’t breathe on her own. She could only breath[e]
30 percent on her own. And she has other com plications and the doctor, he prohibited it.”

                                                   4
anyone else to smoke in her presence. This appeal followed.3

                                             II. APPLICABLE LAW

         Section 153.433 of the Texas Family Code, entitled “Possession of or Access to

Grandchild,” provides as follows:

         The court shall order reasonable possession of or access to a grandchild by
         a grandparent if:

                  (1)      at the time the relief is requested, at least one biological or
                           adoptive parent of the child has not had that parent’s parental
                           rights terminated;

                  (2)      the 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; and

                  (3)      the grandparent requesting possession of or access to the
                           child is a parent of a parent of the child and that parent of the
                           child:

                           (A)      has been incarcerated in jail or prison during the
                                    three-month period preceding the filing of the petition;

                           (B)      has been found by a court to be incompetent;

                           (C)      is dead; or

                           (D)      does not have actual or court-ordered possession of or
                                    access to the child.


        3
          On Septem ber 5, 2007, Cum by filed a petition for writ of m andam us with this Court, which we denied
by m em orandum opinion after initially granting a stay of the trial court proceedings. In re Cumby, No.
13-07-00538-CV, 2007 Tex. App. LEXIS 8268, at *1 (Tex. App.–Corpus Christi Oct. 15, 2007, orig.
proceeding) (m em . op.). Cum by then petitioned the Texas Suprem e Court for a writ of m andam us on October
26, 2007. After staying the trial court proceedings and requesting full briefing, the Court denied the petition
on March 28, 2008.

         After Cum by filed the instant appeal on April 3, 2008, we initially dism issed it for lack of jurisdiction.
In re D.K.B., No. 13-08-00177-CV, 2008 Tex. App. LEXIS 3317, at *1-5 (Tex. App.–Corpus Christi May 8,
2008, no pet.) (m em . op.) (noting that Cum by’s notice of appeal was filed m ore than thirty days after the
challenged judgm ent was signed); see T EX . R. A PP . P. 26.1. However, we subsequently granted Cum by’s
m otion for rehearing and withdrew the earlier opinion dism issing the appeal, noting that the court-im posed
stays arguably tolled the tim e lim it for filing a notice of appeal. See Verburgt v. Dorner, 959 S.W .2d 615, 616
(Tex. 1997) (“[A]ppellate courts should not dism iss an appeal for a procedural defect whenever any arguable
interpretation of the Rules of Appellate Procedure would preserve the appeal.”).

         Cum by also filed a m otion with this Court seeking to suspend the enforcem ent of the visitation order
during the pendency of this appeal; we denied the m otion on April 17, 2008.

                                                         5
TEX . FAM . CODE ANN . § 153.433 (Vernon 2008).

                                  III. STANDARD OF REVIEW

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

of grandparent access or possession under section 153.433. In re J.P.C., 261 S.W.3d

334, 335-36 (Tex. App.–Fort Worth 2008, no pet.); see also In re Marriage of Campbell,

No. 06-08-00088-CV, 2009 Tex. App. LEXIS 1407, at *6 (Tex. App.–Texarkana Feb. 27,

2009, no pet.) (mem. op.). 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). Although the grandparent access

statute does not specifically include a best interest analysis, section 153.002 of the family

code dictates that the best interests of the child shall always be the primary consideration

when determining conservatorship, possession, and access issues. TEX . FAM . CODE ANN .

§ 153.002 (Vernon 2008); J.P.C., 261 S.W.3d at 336. A trial court is given “wide latitude

in determining the best interests of a minor child.” Stallworth v. Stallworth, 201 S.W.3d

338, 347 (Tex. App.–Dallas 2006, no pet.) (quoting Gillespie v. Gillespie, 644 S.W.2d 449,

451 (Tex. 1982)).

       An abuse of discretion does not occur if some evidence of substantive and probative

character exists to support the trial court's decision. J.P.C., 261 S.W.3d at 336. However,

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, discretion is abused when

the court 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; see In re B.N.S., 247 S.W.3d 807, 808 (Tex.

App.–Dallas 2008, no pet.); see also In re Marriage of Campbell, 2009 Tex. App. LEXIS

1407, at *7.

                                        IV. ANALYSIS

       It is undisputed that the requirements of subsections (1) and (3) of the grandparent

                                               6
access statute were met because Cumby’s parental rights were not terminated and T.B.,

D.K.B.’s father and Farrior’s son, was deceased at the time Farrior’s petition was filed. See

TEX . FAM . CODE ANN . § 153.433(1), (3)(C). Therefore, the only question before us is

whether or not the trial court abused its discretion in determining that Farrior satisfied

subsection (2) of the statute.

        Cumby’s central argument is that the evidence adduced at trial was factually and

legally insufficient to support the trial court’s order.4 In reviewing a possession order under

an abuse of discretion standard, legal and factual sufficiency are not independent grounds

of error, but are relevant factors in determining whether the trial court abused its discretion.

In re T.D.C., 91 S.W.3d 865, 872 (Tex. App.–Fort Worth 2002, pet. denied). In determining

whether an abuse of discretion has occurred because the evidence is legally or factually

insufficient to support the trial court’s decision, we must inquire: (1) whether the trial court

had sufficient information upon which to exercise its discretion; and (2) whether the trial

court erred in its application of discretion. Id. (citing In re D.S., 76 S.W.3d 512, 516 (Tex.

App.–Houston [14th Dist.] 2002, no pet.); Norris v. Norris, 56 S.W.3d 333, 338 (Tex.

App.–El Paso 2001, no pet.); Lindsey v. Lindsey, 965 S.W.2d 589, 592 (Tex. App.–El Paso

1998, no pet.)). “The traditional sufficiency review comes into play with regard to the first

question. We then proceed to determine whether, based on the elicited evidence, the trial

court made a reasonable decision.” Id. (internal citations omitted). Cumby does not argue

that the trial court lacked sufficient information upon which to exercise its discretion;

accordingly, our analysis turns on whether the trial court made a reasonable decision

based on the elicited evidence. Id.

        4
          Cum by also contends that the trial court erred by rendering its order without including a specific
finding that denial of visitation to Farrior “would significantly im pair the child’s physical health or em otional
well-being,” as stated in the grandparent access statute. See T EX . F AM . C OD E A N N . § 153.433(2). According
to Cum by, the findings are therefore insufficient as a m atter of law to support an order of grandparent access.
Farrior responds by noting correctly that the statute does not explicitly require the trial court to m ake written
findings of fact in accordance with the statute’s language in order for grandparent access to be awarded. W e
need not address the issue as, even assum ing the trial court’s findings of fact were sufficient as a m atter of
law to support a possession order under section 153.433, we find that the evidence was insufficient to support
such an order. See T EX . R. A PP . P. 47.1.

                                                        7
       We begin our analysis by noting that the grandparent access statute, as it exists

today, is the product of significant amendments made in response to the United States

Supreme Court’s opinion in Troxel v. Granville, 530 U.S. 57, 67 (2000). In Troxel, the

Court considered the constitutionality of a Washington statute permitting “any person” to

petition a trial court for a visitation order and authorizing the court to grant such an order

whenever “visitation may serve the best interest of the child.” Id. at 60. In a plurality

opinion, the Court found that the statute, as applied, infringed upon the “fundamental right

of parents to make decisions concerning the care, custody, and control of their children.”

Id. at 66-67; see U.S. CONST . amend. XIV. The plurality reasoned in part as follows:

       [The statute] contains no requirement that a court accord the parent’s
       decision any presumption of validity or any weight whatsoever. Instead, the
       Washington statute places the best-interest determination solely in the hands
       of the judge. Should the judge disagree with the parent’s estimation of the
       child’s best interests, the judge’s view necessarily prevails. Thus, in practical
       effect, in the State of Washington a court can disregard and overturn any
       decision by a fit custodial parent concerning visitation whenever a third party
       affected by the decision files a visitation petition, based solely on the judge’s
       determination of the child’s best interests.

Troxel, 530 U.S. at 67 (emphasis in original). In 2005, the Texas Legislature amended the

grandparent access statute—which had previously required only that grandparent access

be in the best interest of the child—to clarify that the trial court must presume that a parent

acts in the best interest of the parent’s child, and that an applicant grandparent must

overcome that presumption in order to obtain a possession order. See Act of Apr. 29,

2005, 79th Leg., R.S., ch. 484, § 4, 2005 TEX . SESS. LAW SERV. 1346, 1346-47 (Vernon).

       Cumby argues that Farrior presented no evidence specifically rebutting the

mandated presumption that Cumby would act in D.K.B.’s best interests in determining

when and how D.K.B. would interact with her paternal grandmother. At trial, Cumby

testified succinctly as to her position: “It’s not that I do not want [D.K.B.] around Ms.

Farrior. I just believe that, as a mother, I should be able to decide when she should be

able to be around her; and if I want to be there, that I should be able to be there.” We


                                              8
agree.

         In a similar case, the Texas Supreme Court granted mandamus relief to a parent

who objected to a grandparent access order. In re Mays-Hooper, 189 S.W.3d 777, 778

(Tex. 2006) (orig. proceeding). There, the Court determined that the trial court abused its

discretion by ordering grandparent visitation where “there was no evidence that the child’s

mother was unfit, no evidence that the [child]’s health or emotional well-being would suffer

if the court deferred to [the mother’s] decisions, and no evidence that [the mother] intended

to exclude [the paternal grandmother’s] access completely.” Id. The same analysis holds

in the instant case. There was no evidence presented at trial that Cumby is an unfit mother

or that she would have completely denied Farrior’s access to D.K.B. In fact, Farrior’s own

testimony established that Cumby is a fit parent and that Cumby had facilitated Farrior’s

visits with D.K.B. in the past. Moreover, Farrior admitted at trial that her main objective in

filing suit was to have unsupervised visits with D.K.B., but Farrior did not produce any

evidence indicating that D.K.B.’s physical health or emotional well-being would be

significantly impaired if Farrior continued to have visits with D.K.B. supervised by Cumby,

as was Cumby’s preference. Without any such evidence, the trial court had no discretion

to disregard Cumby’s decisions regarding when and under what circumstances Farrior may

visit with D.K.B. See Troxel, 530 U.S. at 67; Mays-Hooper, 189 S.W.3d at 778 (finding that

the trial court abused its discretion in awarding grandparent visitation in part because there

was “no evidence that the [child]’s health or emotional well-being would suffer if the court

deferred to [the mother’s] decisions”).

         Further, because there was no evidence indicating that Cumby would significantly

restrict Farrior’s access to D.K.B. in the absence of court intervention, it was an abuse of

discretion for the trial court to have found that a court order was reasonably necessary in




                                              9
order to maintain the child’s relationship with her paternal grandmother.5

         We conclude that Farrior did not satisfy the requirement of section 153.433(2) of the

family code because she failed to overcome the presumption that Cumby would act in

D.K.B.’s best interests. See TEX . FAM . CODE ANN . § 153.433(2); Troxel, 530 U.S. at 67;

J.P.C., 261 S.W.3d at 336; Mays-Hooper, 189 S.W.3d at 778. Accordingly, the trial court

abused its discretion by granting Farrior’s petition. Cumby’s issue is sustained.

                                                 V. CONCLUSION

         For the foregoing reasons, we reverse the judgment of the trial court and render

judgment denying Farrior’s petition for grandparent access in its entirety.



                                                                         ________________________
                                                                         DORI CONTRERAS GARZA,
                                                                         Justice

Memorandum Opinion delivered and
filed this the 13th day of August, 2009.



         5
             Farrior notes the following in her appellate brief:

         Twenty m onths have passed since the court issued the com plained[-]of Order. It is
         reasonable to assume that during that time a significant amount of bonding has occurred
         between [D.K.B.] and [Farrior], as well as between [D.K.B.] and her paternal relatives . . . .
         Should the Court reverse the Order, it should be done without prejudice to allow [Farrior] to
         re-urge her request for visitation and present evidence regarding [D.K.B.]’s current em otional
         connection to [Farrior].

(Em phasis added.)

         W e note that our decision today is predicated on the following facts: (1) that the uncontroverted
evidence showed that Cum by had not, at any tim e prior to trial, com pletely denied Farrior access to D.K.B;
and (2) that there was no evidence produced at trial indicating that Cum by would so deny Farrior’s access
going forward. W e recognize that the specific circum stances surrounding D.K.B.’s case— including D.K.B’s
relationship with her grandm other and paternal relatives, and the relationship between Cum by and
Farrior— m ay well have significantly changed since the tim e of trial. However, it is elem entary that we m ay
not consider assum ptions— such as those m ade by Farrior here— that are not supported by evidence in the
record before us.

         Nevertheless, we em phasize that nothing in our opinion today precludes Farrior from filing a
subsequent petition for visitation should circum stances change such that Cum by is no longer acting in the best
interests of D.K.B. by fostering D.K.B.’s relationship with Farrior. See T EX . F AM . C OD E A N N . § 153.433(2); see
also id. § 153.432(a)(2) (Vernon 2008) (providing that a biological or adoptive grandparent m ay request
possession of or access to a grandchild by filing a suit for m odification as provided by Chapter 156); § 156.101
(Vernon 2008) (providing that the court m ay m odify a possession order if, am ong other things, circum stances
have “m aterially and substantially changed” since the date of the order and the m odification would be in the
best interest of the child).

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