


 
IN THE
TENTH COURT OF APPEALS










 

No. 10-04-00110-CV
 
In the Interest of B.R.S. 
and A.N.S., Children,
                                                                      Appellants
 
 

From the 378th District Court
Ellis County, Texas
Trial Court No. 62,686
 

DISSENTING Opinion





 
          The wrong standard of review.
          No analysis.
          The wrong result.
          I dissent.
Overview
          Ultimately, this case will turn on
whether the-best-interest-of-the-child finding necessarily includes an
affirmative finding on the elements of a constitutionally permissible state
intervention into the parent-child relationship.  But first, we must address
our standard of review, then the burden of proof on the
best-interest-of-the-child finding, and then standing.  Only then can we
analyze what the best-interest-of-the-child finding includes, or must take into
consideration.
Background
          We do not write on a clean slate.  But
this is the first appeal in Texas in which a trial court has examined the Texas
Grandparent Access statute and determined that, as written, it does not comport
with substantive due process of the fourteenth amendment as interpreted by the
United States Supreme Court in Troxel v. Granville.[1] 
It is not the first time this particular trial judge has so ruled; it is simply
the first time his determination has been brought to us on appeal.  He wants a
definitive ruling.  I want him to have one.  I agree with his legal analysis
and conclusion.  
          This is a case which deserves a
substantial amount of analysis.  But the majority refuses to do the analysis. 
Look at what they offer you as an opinion.  It references other cases but
disclaims the analysis of those cases.  So it is nothing more than a reversal
of the trial court without explaining why.  The cross-points, properly raised,
are not even mentioned.  Cross-points upon which the judgment could be affirmed
raise other serious constitutional issues that were presented to the trial
court and include an equal protection challenge to the validity of the statute.
          I would prefer to conduct an extensive
analysis of the cases the majority cites, as well as other Texas cases, and
explain in greater detail why, in truth, a proper facial challenge analysis has
not yet been conducted of this statute.  I will, however, only lay out the
outline of what I believe a proper analysis must consider and the answer based
upon my limited analysis.  See In the Interest of S.A.P., 135 S.W.3d
165, 177 (Tex. App.—Waco 2004) (Gray, C.J., dissenting) (discussing the delay
by conducting a full analysis), rev'd, 156 S.W.3d 574 (Tex. 2005).
          What greatly assisted me in my limited
analysis is an Attorney General opinion on the validity of the statute.  Op. Tex. Att’y Gen. No. GA-0260, 2004 Tex. AG LEXIS 9228 (Oct. 13, 2004).  This opinion summarizes the Texas cases that have discussed the statute.  The Attorney General
ultimately concludes that the statute is constitutionally valid:
…the Texas Grandparent Access Statute, is
constitutional on its face. It may be constitutionally applied, however, only
in light of the limitations imposed by Troxel v. Granville, 530 U.S. 57
(2000). In order to avoid an unconstitutional application of the statute, a
court must require a grandparent to "overcome the presumption that a fit
parent acts in the best interest of his or her child." In re Pensom,
126 S.W.3d 251, 256 (Tex. App.-San Antonio 2003, no pet.). To overcome the
presumption, "a grandparent has the burden to prove, by a preponderance of
the evidence, either that the parent is not fit, or that denial of access by
the grandparent would significantly impair the child's physical health or emotional
well-being." Id. at 256.
 
          While the summary was helpful, its
conclusion is not controlling authority.  Tussey v. State, 494 S.W.2d
866, 870 n.3 (Tex. Crim. App. 1973); Weaver v. Head, 984 S.W.2d 744, 746
(Tex. App.—Texarkana 1999, no pet.).  The problem with every case that examined
the statute, and ultimately the Attorney General’s opinion as well, is that the
reviewing court was examining the statute as the statute was applied in each of
the various cases on the facts and holding of each case.  The Attorney General,
then, simply reviewed the cases to see if the court determined whether the Grandparent
Access statute violated the U.S. Supreme Court’s holding in Troxel. 
Thus, I do not believe any court or agency has conducted a proper analysis of a
facial challenge to the Grandparent Access statute.  The Attorney General’s
opinion follows the discussion of the cases and characterizes the analysis as a
facial analysis.  I must, however, ask the question:  was it really a facial
analysis if the analysis focused on the provisions that courts have “engrafted”
onto the statute so as to make it comply with Troxel—provisions not in
the statute, provisions that are added by an appellate court in an ad hoc
effort to make the statute survive a facial challenge?
A Facial Analysis
          The facial challenge analysis that
needs to be performed is an analysis of the statute as written, not an analysis
based upon a provision engrafted upon the statute by a court to make the
statute work.  See FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 873 (Tex. 2000).  As a legal question, we decide the issue
without regard to the trial court’s decision, de novo.  See Tex. DOT
v. Needham, 82 S.W.3d 314, 318 (Tex. 2002); In the Interest of C.P.J.,
129 S.W.3d 573, 576 (Tex. App.—Dallas 2003, pet. denied).
          The statute provides:
§ 153.432. Suit for Access
 
           (a) A biological or adoptive
grandparent may request access to a grandchild by filing:
 
          (1) an original suit;  or
          (2) a suit for modification as
provided by Chapter 156.
 
          (b) A grandparent may request access
to a grandchild in a suit filed for the sole purpose of requesting the relief,
without regard to whether the appointment of a managing conservator is an issue
in the suit.
 
§ 153.433. Possession of and Access to Grandchild
 
          The court shall order reasonable
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;  and
          (2) access is in the best interest of
the child, and at least one of the following facts is present:
          (A) the grandparent requesting access
to the child is a parent of a parent of the child and that parent of the child
has been incarcerated in jail or prison during the three-month period preceding
the filing of the petition or has been found by a court to be incompetent or is
dead;
          (B) the parents of the child are
divorced or have been living apart for the three-month period preceding the
filing of the petition or a suit for the dissolution of the parents' marriage
is pending;
          (C) the child has been abused or
neglected by a parent of the child;
          (D) the child has been adjudicated to
be a child in need of supervision or a delinquent child under Title 3;
          (E) the grandparent requesting access
to the child is the parent of a person whose parent-child relationship with the
child has been terminated by court order;  or
          (F) the child has resided with the
grandparent requesting access to the child for at least six months within the
24-month period preceding the filing of the petition. 
 
Tex. Fam. Code Ann. §§ 153.432 & 153.433 (Vernon 2002).
 
Burden of Proof
          The trial court was concerned about
the burden of proof.  To determine who has the burden of proof, I use a
technique taught by an esteemed Baylor Law School professor.  The technique
asks a simple question – “Who wins if no one puts on any evidence?”  See
Hardy v. State, 50 S.W.3d 689, 698 (Tex. App.—Waco 2001) (Gray, J.,
concurring), aff’d, 102 S.W.3d 123, 129 (Tex. 2003). 
          In this instance, if no one presents
any evidence of the best interest of the child, the grandparents are not
entitled to court ordered access.  Thus, the burden of proof is clearly on the
grandparent to prove what the best interest of the child is for there to be
grandparent access.
Standing
          Next, a brief note about standing. 
This statute is not as broad as the Washington statute at issue in Troxel. 
To establish standing to bring the suit, a person must be a grandparent and one
of the specific conditions set out in the statute must be met.  See Tex. Fam. Code Ann. §§ 153.432
& 153.433 (Vernon 2002).  There is no
issue in this case that the petitioners are grandparents and that the parents
are divorced, thus meeting Section 153.433(2)(B) of the statute.  But it is the
disparate treatment of divorced parents as opposed to married parents that
leads to Deanna Seward’s cross-point that this disparate treatment violates the
Equal Protection Clause.  This provision would likewise apply if one of the parents
were working away from home such as serving in the military or as an overseas
contractor.  Thus, I agree with Justice Marion on the San Antonio Court in
concluding that our statute is better than the Washington statute because
standing was used to limit the breadth of those who could seek the State’s
assistance in interfering with the parent-child relationship.  In re Pensom,
126 S.W.3d 251, 254 (Tex. App.—San Antonio 2003, no pet.). [2] 
But limiting the breadth by limiting who has standing, alone, will not cure the
statute’s ailments if it suffers other constitutional shortcomings.
Best-Interest-Of-The-Child
Analysis
          Now we must turn our attention to the
crux of the statute, the best interest of the child.  The best interest of the
child is not defined in the context of this statute.  That is ultimately why
this statute fails the facial challenge.
          The best-interest terminology is very
familiar to Texas family law attorneys, child protective services case workers,
legislators, courts, etc.  It is frequently a part of some other analysis.  For
example,

to
     remove disabilities of minority, the best interest of the minor must be
     explained in the petition.  Tex.
     Fam. Code Ann. § 31.002 (a)(5) (Vernon 2002); 

 

in
     a judicial bypass to parental notification of a minor’s decision to have
     an abortion, the trial court shall determine whether parental notification
     would not be in the minor’s best interest.  Tex. Fam. Code Ann. § 33.003 (i) (Vernon 2002); 

 

the
     change of a child’s name must be in the child’s best interest.  Tex. Fam. Code Ann. § 45.004
     (a)(1) (Vernon Supp. 2004-2005);

 

in
     placing a delinquent child on probation outside his home or committing the
     child to the Texas Youth Commission, the juvenile court shall include in
     its order that placement outside the home is in the child’s best
     interest.  Tex. Fam. Code Ann.
     § 54.04(i)(1)(A) (Vernon Supp. 2004-2005);

 

the
     best interest of the child is the primary consideration in conservatorship
     of, possession, and access to a child.  Tex.
     Fam. Code Ann. § 153.002 (Vernon 2002); 

 

an
     order of support conforming to the child support guidelines is presumed to
     be in the best interest of the child.  Tex.
     Fam. Code Ann. § 154.122 (Vernon 2002); 

 

certain
     factors are used to determine the best interest of the child at a permanency
     hearing when the child is in the care of the Department of Protective and
     Regulatory services.  Tex. Fam.
     Code Ann. § 263.307 (Vernon 2002).

 
But the best-interest test itself is a factor
test, not an element test. 
          As a factor test, it is composed of a
review of the evidence of various factors.  The most common rendition of the
best-interest test comes from Holley.  Holley v. Adams, 544
S.W.2d 367, 372 (Tex. 1976).  And it has frequently been stated that it is a balancing test.  Evidence on each factor need not be presented, and it is possible that evidence
on a single factor can overwhelm the evidence on all other factors.  See
In re C.H., 89 S.W.3d 17, 27 (Tex. 2002); In the Interest of J.M.T.,
39 S.W.3d 234, 240 (Tex. App.—Waco 1999, no pet.).  We typically review a trial
court’s determination of the best-interest test under the abuse of discretion
standard. See e.g. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982)  (custody determination); Green v. Remling, 608 S.W.2d 905, 908 (Tex. 1980) (adoption decree); In the Interest of H.E.L., No. 10-04-00204-CV, 2005 Tex. App. LEXIS 609, *4-5 (Tex. App.—Waco Jan. 26, 2005, no pet.) (mem. op.) (change of
child’s name); In the Interest of A.C.S., 157 S.W.3d 9, 20 (Tex.
App.—Waco 2004, no pet.) (modification of custody/relocation of child).  
          The exception to the typical review of
best interest is the review of best interest in a termination of parental
rights case.  In those cases, best interest has been reviewed for legal and
factual sufficiency of the evidence.  See In the Interest of J.F.C., 96
S.W.3d 256, 265-267 (Tex. 2002).  But even in a review of a termination case,
it is still a review of evidence of the various factors which is used to
determine the overall sufficiency of the evidence.
          An element test, on the other hand,
requires affirmative proof on each element of the test.  A failure to prove
each element of the test means the person with the burden of proof loses.  An
element test is typically reviewed for sufficiency of the evidence, both legal
sufficiency and factual sufficiency.   The most common form of an element test
is the proof of a cause of action.  For example, a negligence cause of action
has three elements: 1) a legal duty; 2) breach of that duty; and 3) damages
proximately resulting from the breach.  Van Horn v. Chambers, 970 S.W.2d
542, 544 (Tex. 1998).  The plaintiff loses his case by his failure to prove any
one of these elements.  In Van Horn, the plaintiffs failed to prove the
existence of a legal duty; thus, the Supreme Court rendered a judgment that the
plaintiffs take nothing on their claims.  Van Horn v. Chambers, 970
S.W.2d 542 (Tex. 1998).
          What the various courts that have been
confronted with the Grandparent Access statute in Texas have done is judicially
engraft onto the factor analysis of a traditional best-interest test the two
specific elements enumerated in Troxel, an affirmative finding on at
least one of which is necessary to make the Grandparent Access statute
constitutional.  
          The two elements that courts have
engrafted upon the best-interest test to overcome the presumption that a fit
parent acts in the best interest of his or her child which must be accorded
great weight in the balancing analysis—rather than a vanishing presumption that
evaporates when contrary evidence is introduced—are either 1) an affirmative
finding that the parent is not fit; or 2) an affirmative finding that the child
would suffer injury if grandparent access is not ordered.  See In re
Pensom, 126 S.W.3d 251, 256 (Tex. App.—San Antonio 2003, no pet.)
(engrafted elements 1 and 2); In the Interest of C.P.J., 129 S.W.3d 573,
579 (Tex. App.—Dallas 2003, pet. denied) (generally engrafted elements[3]
1 and 2); Roby v. Adams, 68 S.W.3d 822, 828 (Tex. App.—El Paso 2002,
pet. denied) (facial challenge not specifically addressed but generally
engrafted elements 1 and 2 and denied access); see also Lilley v.
Lilley, 43 S.W.3d 703 (Tex. App.—Austin 2001, no pet.).
          Because under no established
best-interest analysis in Texas has best interest been defined to require an
affirmative finding on either of these engrafted elements, and because an
affirmative finding on either of these elements is required before the statute
meets constitutional muster under Troxel, the statute is not
constitutional on its face.  See Tex. DOT v. Needham, 82 S.W.3d
314, 318 (Tex. 2002) (terms should be interpreted consistently in every part of
an act.).  Those courts that have engrafted a required finding onto the
best-interest analysis have simply performed the legislative function of adding
the elements necessary to make the statute constitutional.  That is not the
proper role of the judiciary.  “In sum, that the application of an
unconstitutional statute can, in some cases, reach the same result as the
application of a constitutional statute does not make the unconstitutional
statute constitutional.”  FM Props. Operating Co. v. City of Austin, 22 S.W.3d 868, 878 (Tex. 2000).
          Thus, because the best-interest
analysis in Texas does not require an affirmative finding on either element
necessary to make the statute constitutional, I would affirm the judgment of
the trial court.[4]
Conclusion
          The problems of this case are not
nearly so easily swept under the rug as the majority opinion might suggest.  As
written, the statute survives a challenge that it is facially unconstitutional only
by a tortured application of presumptions and engrafting onto the
best-interest-of-the-child test determinations that are not part of that test
in any other context.  The statute is broken.  It needs to be fixed.  The
question is do we act where the legislature has not, or do we call it the way
it is?  Other courts have struggled with the question and cobbled together what
they no doubt hoped would be a temporary fix based upon the facts as developed in
a given case.  A brave, and correct, trial judge did not succumb to the
temptation in this case to try to fix the statute by engrafting provisions onto
it that are simply not there.  I, too, would not.  As a conservative jurist, I
would do my job and await the time with patience until the legislature has
fixed the constitutional problems in this statute.[5]
 
 
          I dissent.
 
                                                                   TOM
GRAY
                                                                   Chief
Justice
 
Dissenting
opinion delivered and filed May 25, 2005
 




[1]
Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49
(2000).


[2]
This is an excellent opinion that engages
in more analysis than most.  Another excellent opinion is by Justice Lang from
the Fifth Court of Appeals.   In the Interest of C.P.J., 129 S.W.3d 573
(Tex. App.—Dallas 2003, pet. denied).  Ultimately, however, both opinions
looked at the facts of the case and what the trial court had engrafted upon the
factor analysis, thus reverting to an “as applied” analysis rather than a
facial validity analysis.


[3]
The court only discussed the presumption
of a fit parent acting in the best interest of the child which is the general
presumption giving rise to the need to prove one of the specific elements.


[4]
I do not find it necessary to reach the
equal protection argument presented by cross-point.  But I have grave concerns
about a statute that would compel divorced parents of a child to allow
grandparent visitation when the same grandparents could not compel visitation
with the children of married parents.  This case presents a situation where both
of the divorced parents agree that the parents should not be compelled by the
State to allow the paternal grandparents access to their children.


[5]
This issue is currently before the
legislature in Tex. H.B. 261, 79th Leg., R.S. (2005).


