












 
 
 
 
 
 
                                               COURT OF APPEALS
                                                 SECOND
DISTRICT OF TEXAS
                                                                FORT
WORTH
 
 
                                        NO.
2-09-009-CV
 
 
IN RE J.W.L.                                                                                       
 
                                              ------------
 
           FROM THE 325TH
DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                             OPINION
 
                                              ------------
Relator, J.W.L.,[1]
filed this petition for writ of mandamus attacking the authority of the trial
court to approve the agreed orders that relator had entered into with his
former spouse=s parents (the grandparents)
regarding the child, M.W.L., and to enter subsequent temporary orders.  We deny relief.




                                        Background
Facts
Relator and his former wife entered into an
agreed final decree of divorce in December 2000 regarding both property and
custody of their daughter, M.W.L.  They
were both named joint managing conservators with the mother having primary
custody.  They entered into one
modification on February 5, 2004.  On
October 10, 2007, the mother and her parents, with her consent, filed a
petition to modify the parent-child relationship regarding the existing orders,
whereby the grandparents sought primary custody of M.W.L. upon the mother=s
anticipated death.  On October 17, 2007,
the day after the mother=s death, the grandparents
amended their petition, adding M.W.L.=s
stepfather as a party.




Eventually, at a hearing on November 7, 2007,
relator and the grandparents entered into an agreed order in the suit to modify
the parent-child relationship (Agreed Order). 
Under its terms, relator was named sole managing conservator and the
grandparents were named nonparent possessory conservators and given rights of
possession to M.W.L on the second and fourth weekends of each month during the
school year, as well as some possession during the summer, the Christmas
holiday, the child=s birthday, and the deceased
mother=s
birthday.  The Agreed Order also required
both parties to give each other at least sixty days= prior
written notice of a change of address. 
It contained no residence restriction, giving relator the right to
determine M.W.L.=s primary residence.  The Agreed Order recited that the court had
retained jurisdiction of the case and of all parties and that no other court
had obtained continuing exclusive jurisdiction over the case.  It was signed by all parties and their
respective counsel, proved up at the November 7, 2007 hearing, and signed by
the judge on January 18, 2008.




Relator and the grandparents operated under the
Agreed Order for nearly seven months, but when the grandparents went to relator=s home
to pick M.W.L. up for their extended one-week summer visitation, the home was
abandoned and M.W.L. was not there. 
Relator had moved M.W.L. to Idaho without giving the grandparents the
sixty days= notice he was required to
provide under the terms of the Agreed Order. 
Furthermore, relator left misleading messages stating he was relocating
with M.W.L. to Florida.  He refused to
answer any calls.  Eventually, by filing
a petition for writ of habeas corpus, the grandparents were able to locate and
return M.W.L. to Texas for emergency hearings on motions to enter and to
enforce temporary orders.  A temporary
orders hearing took place on July 18, 2008. 
Despite being served with notice and being ordered to appear, relator
did not appear.  The trial court entered
temporary orders and ordered that temporary custody of M.W.L. be given to the
grandparents, that no custody be given to relator, and that if access should be
given to relator, it would be supervised through Family Court Services.
On or about August 4, 2008 relator filed a
special appearance, plea of forum non conveniens, original answer, affirmative
defenses, request for the court to decline jurisdiction, and special
exceptions.  In September 2008, relator
filed a motion to vacate the order to return the child, among other pleadings,
and on October 7, 2008, the trial court held a hearing on relator=s
special appearance.  Relator appeared and
testified but the trial court denied his special appearance.  That was the only matter heard that day, and
the other matters were not set until January 29 and 30, 2009.  M.W.L. has remained with her grandparents
since that time, and although given the opportunity to pursue other matters at
the January 2009 hearing on his motion to vacate, such as temporary visitation,
relator presented only his motion to vacate and a request for an indigency
finding and appointment of counsel.[2]




This mandamus was filed on January 8, 2009.  Although we ultimately deny mandamus relief
in this matter, because relator is convinced there remains a standing defect
that might impact the trial court=s
jurisdiction, we will discuss that issue.
                       Issues
Raised in This Mandamus Proceeding
Relator raises four issues in this
proceeding:  1) whether the trial judge
abused his discretion when he approved the January 18, 2008 Agreed Order
entered into between relator and the grandparents in the underlying case;
2) whether the trial judge abused his discretion when he issued the July
18, 2008 temporary orders granting temporary possession of M.W.L. to the
grandparents and removing her from relator=s
possession; 3) whether the trial judge abused his discretion when he denied
relator=s
special appearance on October 28, 2008; and 4) whether the trial judge abused
his discretion when he did not rule on relator=s motion
to vacate the July 18, 2008 temporary orders.[3]




         Temporary
Orders and Special Appearances in Family Law Cases




Generally, Texas appellate courts only have
appellate jurisdiction over appeals from final judgments unless a statute
specifically allows a particular type of interlocutory appeal.  Ogletree v. Matthews, 262 S.W.3d 316,
319 n.1 (Tex. 2007); In re Roxsane R., 249 S.W.3d 764, 774 (Tex. App.CFort
Worth 2008, orig. proceeding).  Temporary
orders entered in family law cases are not appealable.  Tex. Fam. Code Ann. '
105.001(e) (Vernon 2008); see also Tex. Civ. Prac. & Rem. Code Ann. '
51.014(a)(7) (Vernon 2008) (listing types of appealable interlocutory orders); In
re Roxsane R., 249 S.W.3d at 774B75.  Normally, the grant or denial of a special
appearance is subject to an interlocutory appeal; however, if it involves a
family law matter, there is no such right to an interlocutory appeal.  Tex. Civ. Prac. & Rem. Code Ann. '
51.014(a)(7); see CHEK Inv., L.L.C. v. L.R., 260 S.W.3d 704, 706 (Tex.
App.CDallas
2008, no pet.).  Therefore, we conclude
and hold that  the July 18, 2008
temporary orders, the October 28, 2008 denial of the special appearance, and
the February 6, 2009 order denying relator=s motion
to vacate were not subject to interlocutory appeal and therefore are all potentially
subject to mandamus review for a determination as to whether the trial court
abused its discretion.  See, e.g.,
In re Derzapf, 219 S.W.3d 327, 334 (Tex. 2007) (orig. proceeding).  However, all of the substantive challenges
asserted against the July 18 temporary orders, the October 28 denial of the
special appearance, and the February 6 order denying relator=s motion
to vacate are tied directly to and contingent upon a successful challenge to
the standing issue raised by relator in his collateral attack against the
Agreed Order he entered into with the grandparents, which we now turn to.
                    Was
the January 18, 2008 Agreed Order Void?




The Agreed Order entered between relator and the
grandparents is a different matter with respect to appealability.  The order was agreed to by relator and the
grandparents to settle the modification suit filed by one of the managing
conservators (mother) and the grandparents shortly before M.W.L.=s mother=s
death.  While relator says he objected to
jurisdiction at the time and now contends he was Aforced
under color of law to endure processes that culminated in a putative agreement
between himself and the [grandparents] regarding his and the [grandparents=] legal
status vis-a-vis [M.W.L.],@ nothing
in this mandamus record indicates that relator ever appealed the Agreed Order,
which became final and appealable on January 18, 2008.  See Tex. R. App. P. 25.1, 26.1.  Unlike the other orders relator seeks to
challenge, the Agreed Order was appealable, but relator never appealed it.  See Tex. R. App. P. 26.1(b); In re
K.L.V., 109 S.W.3d 61, 66B67 (Tex.
App.CFort
Worth 2003, pet. denied).  He now seeks
to collaterally attack it by this proceeding some twelve months later.  See, e.g., In re A.G.G.,
267 S.W.3d 165, 169 (Tex. App.CSan
Antonio 2008, pet. denied); Tarrant County v. Denton County, 87 S.W.3d
159, 174 (Tex. App.CFort Worth 2002, pet.
denied).  Relator contends, however, that
the July 2008 temporary orders and the denial of the special appearance and of
the motion to vacate were erroneously rendered because they were all based upon
the allegedly void Agreed Order.
Relator contends that the trial court lacks
subject matter jurisdiction over these proceedings and the parties because the
grandparents never had standing to bring or maintain suit.  While there is no set procedure for pursuing
a collateral attack, it is limited to those judgments which are void or involve
fundamental error.  See In re A.G.G.,
267 S.W.3d at 169.  Furthermore, we are
to presume the validity of a judgment and we may not use extrinsic evidence to
establish a lack of jurisdiction; that is, the challenger must show that the
judgment is void on its face.  Id.  Here, the Agreed Order recited,
1.     Appearances
 
. . . .
 
Respondent, [J.W.L.],
appeared in person and through attorney of record, David L. Cook, and announced
ready for trial and has agreed to the terms of this order, to the extent
permitted by law, as evidenced by the signature of Respondent and Respondent=s attorney appearing
below.




2.     Jurisdiction
 
The Court, after examining the record and the evidence and argument of
counsel, finds that it has jurisdiction of this case and of all the parties and
that no other court has continuing, exclusive jurisdiction of this case.  All persons entitled to citation were
properly cited.
 
Thus, relator not only appeared at the November
7, 2007 hearing with his counsel and agreed to the entry of a modification
order with the grandparents at that hearing, but he and his counsel also signed
the Agreed Order.  Furthermore, the
Agreed Order recites that the court determined that it had jurisdiction over
both the case and the parties.  Similar
recitals have been held to be sufficient to establish the jurisdictional basis
for a valid judgment.  Id.  Relator is simply unable to show that the
Agreed Order is void on its face.  We
therefore hold that relator=s
attempted collateral attack on the Agreed Order fails.  Even addressing relator=s
specific complaints regarding the grandparents=
standing, we further conclude his challenges fail for several reasons.




First, he states that upon the death of the
managing conservator (M.W.L.=s
mother), the managing conservatorship ended immediately and, therefore, under Greene
v. Schuble, 654 S.W.2d 436, 437B38 (Tex.
1983), there was no longer a valid, subsisting court order.  He contends that the grandparents failed to
show they had sufficient standing under the family code to pursue their suit to
modify the parent-child relationship because, under Greene, the
conservatorship orders between the mother and father ended immediately upon the
mother=s
death.  Id. at 437B38
(holding portion of decree dealing with conservatorship no longer valid court
order governing possession upon death of conservator for purposes of then
section 14.10(e) (habeas proceeding for possession of child)).  Therefore, he contends the grandparents= suit to
modify and the Agreed Order they entered were void conservatorship orders,
citing Greene.  In other words,
relator argues that one cannot sustain a suit to modify an order that allegedly
no longer exists.




Greene, however, does not apply to the
issue of standing as presented in this mandamus proceeding.  Id. at 438.  Greene was strictly limited to an
issue of possession.  Id. (AOur
opinion does not reflect consideration of the merits of the other proceedings
pending in the court below. . . .  The
office of habeas corpus is limited to restoring possession of the children to
the person legally entitled to present possession, and may not be used to
relitigate custody.@).  Standing is a threshold jurisdictional issue
and is therefore a question related to the jurisdiction of the trial court over
the parties and subject matterChere,
the trial court=s authority to enter the Agreed
Order.[4]  In re Smith, 260 S.W.3d 568, 572 (Tex.
App.CHouston
[14th Dist.] 2008, orig. proceeding).  As
noted in the Smith case, A[s]tanding
does not mean the right to win; it is only a right to be heard.@  Id. at 573 (quoting In re SSJ-J,
153 S.W.3d 132, 138 (Tex. App.CSan
Antonio 2004, no pet.)).  We specifically
recognized this limitation of Greene in In re P.D.M.,
describing the supreme court=s
decision as narrowly holding Athat the
death of a managing conservator renders the custody order not valid or
subsisting only for purposes of a habeas proceeding.@  In re P.D.M. 117 S.W.3d 453, 460 (Tex.
App.CFort
Worth 2003, pet. denied).  We also
recognized that the supreme court in Greene had Aspecifically
contemplated that a suit for modification of the parent-child relationship
could follow the death of the managing conservator and the issuance of a writ
of habeas corpus to the possessory conservator parent.@  Id. 
So long as the challenge to the Agreed Order fails, then all of relator=s other
challenges raised here also fail.




The grandparents contend that they had standing
in 2007 to bring the suit to modify under family code section
102.003(a)(9).  Tex. Fam. Code Ann. ' 102.003(a)(9)
(Vernon 2008) (granting standing to a person, other than a foster parent, who
has had actual care, control, and possession of the child for at least six
months ending not more than ninety days preceding the date of the filing of the
petition).  Relator claims there is less
than sufficient evidence to support this basis for standing.  There is no record before us from the
November 2007 modification hearing, and while we agree that the later record
from the July 2008 habeas hearing is perhaps insufficient alone to support the
grandparents= standing for the prior November
modification, we do not even need to reach that argument for several reasons.
As previously discussed, relator is prohibited
from looking to extrinsic evidence and going behind the recitals in the
judgment itself via this collateral attack to challenge the Agreed Order.  In re A.G.G., 267 S.W.3d at 169.




Additionally, the grandparents claimed standing
under section 102.004 of the family code, which provides that when both
parents, a surviving parent, or the managing conservator either files a
petition or consents to a suit by grandparents, the grandparents have
standing.  See Tex. Fam. Code Ann.
' 102.004(a)(2)
(Vernon 2008).[5]  Thus, in this case, M.W.L.=s
mother, one of the managing conservators, had already consented to her parents=
custodianship by filing the modification suit with her parents before her
death.  See Tex. R. Civ. P. 13
(signing of pleading by attorneys or parties constitutes certificate by them
that to the best of their knowledge, information, and
belief . . . [their claim] is not groundless or brought in bad
faith), (AEvery pleading . . . shall be
signed by at least one attorney . . . .  A party not represented by an attorney shall
sign his pleadings . . . .@); In
re A.M.S., 277 S.W.3d 92, 98 (Tex. App.CTexarkana
2009, no pet.) (holding that legislature does not specify when consent must be
given or limit the form or nature of consent to any particular type for
purposes of compliance with family code section 102.004(a)(2)).  The death of one party to a suit does not
automatically terminate the litigation, and it may proceed at the insistence of
the surviving parties.  Tex. R. Civ. P.
155; Eikel v. Bristow Corp., 529 S.W.2d 795, 801 (Tex. App.CHouston
[1st Dist.] 1975, no writ).  And, as set
forth above, Greene does not apply to totally terminate the suit simply
because of the mother=s death because there were other
parties in the suit who had already established standing and sought to maintain
the suit, i.e., the grandparents.  Greene,
654 S.W.2d at 438.  Therefore, the
grandparents had standing at the time they filed the modification suit with
their daughter before her death.
For these reasons, the trial court=s
January 18, 2008 approval of the Agreed Order between relator and grandparents
is not void based upon relator=s claim
that the grandparents lacked standing. 
We therefore hold that relator=s
attempted collateral attack on the Agreed Order fails.  We overrule his first issue.




For the same reasons, the trial court also did
not abuse its discretion in issuing temporary orders or by denying relator=s
special appearance.  We therefore also
overrule relator=s second and third issues.  Having already determined that his fourth
issue is moot, we deny relator=s
request for mandamus relief.
 
TERRIE
LIVINGSTON
JUSTICE
 
PANEL:  CAYCE, C.J.; LIVINGSTON, and WALKER, JJ.
 
CAYCE, C.J. filed a
concurring opinion.
 
DELIVERED:  June 15, 2009















 
 
 
 
 
 
                                      COURT
OF APPEALS
                                       SECOND
DISTRICT OF TEXAS
                                                   FORT
WORTH
 
 
                                        NO.
2-09-009-CV
 
 
IN RE J.W.L.
 
                                              ------------
 
           FROM THE 325TH
DISTRICT COURT OF TARRANT COUNTY
 
                                              ------------
 
                                 CONCURRING OPINION1
 
                                              ------------
I concur in the result reached by the
majority.  I write only to express my
concern about the trial court=s July
18, 2008 default order that prohibits the father, J.W.L., from Aany
possession or access@ to his daughter with no showing
that he is an unfit parent.




                                          I.  Background
J.W.L. and S.W.L., natural parents of M.W.L.,
divorced in December 2000.  The divorce
decree named J.W.L. and S.W.L. joint managing conservators.  S.W.L. was given the right to designate
M.W.L.=s
primary residence.  The decree was
modified in February 2004, with no changes to the conservatorship order.
On October 10, 2007, S.W.L., joined by her
parents, G.W. and N.W. (AGrandparents@), filed
a APetition
to Modify Parent-Child Relationship.@  This petition noted that S.W.L. had developed
terminal cancer and was not expected to survive.  In language tracking section 102.003(a)(9) of
the Texas Family Code, the petition alleged that Grandparents had standing to
bring the petition Ain that they have had actual
care, control and possession of the child the subject of this suit for at least
six months ending not more than [ninety] days preceding the date of the filing
of this petition.@2 
S.W.L. and Grandparents sought to have the 2000 decree and 2004 order
modified to give Grandparents, upon S.W.L.=s death,
the right to designate M.W.L.=s
primary residence.  The petition further
requested that the terms and conditions for J.W.L.=s access
to or possession of M.W.L. remain the same as they were in the 2000 decree.




S.W.L. died on October 16, 2007.  The following day, on October 17, 2007,
Grandparents, joined by S.L. (S.W.L.=s
husband at the time of her death, and stepfather to M.W.L.), filed their AFirst
Amended Petition to Modify Parent-Child Relationship,@ again
alleging standing under section 102.003(a)(9) of the family code.  Grandparents and S.L. requested that they be
appointed conservators with the right to designate M.W.L.=s
primary residence.
The trial court conducted a hearing on the
amended petition on November 7, 2007. 
Neither party provided this court with a record from this hearing.
On January 18, 2008, the trial court signed an AAgreed
Order in Suit to Modify Parent-Child Relationship@ (AAgreed
Order@).  The Agreed Order recited that the trial
court, 
heard this case and
made certain rulings regarding standing; a recess was taken, and the
parties entered into settlement negotiations and reached a final agreement; and
the agreement of the parties was read into the record and approved by the
[trial court] (emphasis added).3
 




The Agreed Order designated J.W.L. as sole managing conservator of
M.W.L. with the right to establish M.W.L.=s
primary residence Awithout regard to geographic
location,@ appointed Grandparents as
non-parent possessory conservators,4
and established a schedule for each party=s
possession of and access to M.W.L., including provisions for long distance
visitation by Grandparents should J.W.L. move more than 100 miles from
Grandparents= residence. 
On June 30, 2008, J.W.L. and M.W.L. left Texas
and moved to Idaho, without providing Grandparents prior notice as required by
the Agreed Order.  Grandparents then
filed various pleadings, including a petition to modify the parent-child
relationship requesting that Grandparents be appointed the persons with the
right to designate M.W.L.=s primary residence and that
J.W.L. be allowed only supervised access to and possession of M.W.L.  J.W.L. was served with Grandparents=
pleadings in Idaho days before a scheduled July 18, 2008 hearing.  J.W.L. filed a letter with the trial court
indicating his inability to appear at the July 18 hearing, but the trial court
proceeded with the hearing in J.W.L.=s
absence.5




After the hearing, the trial court signed
temporary orders naming Grandparents temporary sole managing conservators.  Despite naming J.W.L. a temporary possessory
conservator, the temporary orders provided that J.W.L. Ais not
granted any possession or access with [M.W.L.] until further order of this
court.@  The temporary orders further stated that any
future permission granted by the court for J.W.L. to have visitation with
M.W.L. would be Asupervised visitation with
[M.W.L.] under the supervision of the Tarrant County Family Court Services.@
J.W.L. then filed a special appearance and a
motion to vacate the trial court=s order
to return M.W.L. to Grandparents.  In the
motion to vacate, J.W.L. argued that Grandparents never had standing to file a
petition to modify the parent-child relationship and, therefore, all of the trial
court=s orders
following S.W.L.=s death, including the Agreed
Order, were void.  J.W.L. further
requested that the trial court order Athe
immediate return of [M.W.L.]@ to his
custody.




On September 22, 2008, J.W.L. submitted a letter
to the trial court in which he further complained of the trial court=s Avoid@ order
depriving him of possession to M.W.L. and informed the court that A[t]his
litigation has devastated me financially. 
I cannot afford to travel to Texas for hearings.@  He again asked the court to vacate the prior
orders and return his daughter Ato her
home here with me without delay.@  He further alleged:
Time is of the essence in this matter.  The Court=s Orders have unlawfully removed my child from my
care; and her continued emotional and physical well-being is of paramount
importance to me.  [M.W.L.=s] mother died less than
a year ago, and this tumultuous litigation and what amounts to no less than
State-sanctioned kidnapping is quite possibly inflicting serious emotional harm
on her. 
 
On October 7, 2008, the trial court conducted a
hearing on J.W.L.=s special appearance, which the
trial court subsequently denied.  J.W.L.
then filed this original proceeding in which he has asked that we vacate the
trial court=s orders as void and order that
M.W.L. be returned to his custody.6
                              II.  The Parent-Child Relationship




The right to the companionship,
care, custody, and control of one=s own
child is a fundamental liberty interest far more precious than any property
right.7  Thus,
Athe
relationship between parent and child is constitutionally protected.@8  In fact, it is Acardinal@ that
the custody, care, and nurture of a child reside in the parents.9
Both parent and child have a substantial interest
in the justice of a decision affecting their ability to have a relationship
with one another.10  The State also has an interest in protecting
the welfare of its children; an interest that Amust
initially manifest itself by working toward preserving the familial bond@ between
a parent and child unless that parent will not provide a safe, stable
environment.11




While the temporary grant of custody to another
or the limitation of a parent=s access
to a child is not tantamount to absolute termination of parental rights, trial
courts must tread very carefully when they infringe upon a parent=s
ability to participate in child rearing.12  The Supreme Court of Texas has recognized
that custody determinations that restrict a parent=s access
to a child can risk a significant deprivation similar to termination of the
relationship.13  A[A]ny
significant risk of erroneous deprivation [of parental access to a child] is
unacceptable.@14




The Texas Family Code=s
statutory scheme focuses on the children=s
welfare and best interests.15  The legislature has instructed courts that A[t]he
terms of an order that denies possession of a child to a parent or imposes
restrictions or limitations on a parent=s right
to possession of or access to a child may not exceed those that are required to
protect the best interest of the child.@16  Consistent with this legislative mandate,
Texas appellate courts have recognized that it is in the best interest of
children to have maximum reasonable time living with parents.17
The legislature has further recognized parents=
abilities to act in the best interests of their children by applying a
presumption that they do so.18  Consistent with this presumption, the United
States Supreme Court has recognized that so long as a parent is fit, there is
normally no reason for a court to inject itself between parent and child or to
disturb that parent=s rearing of his or her children.19  In
other words, trial court interference with the right of a fit parent to bring
up his or her own child impacts a fundamental right and may violate the Due
Process Clause.




         III.  Potentially Significant Deprivation of J.W.L.=s
Parental Rights
In this case, the trial court=s Atemporary@ orders
tread very closely to a significant deprivation of J.W.L=s
parental rights similar to termination of the parent-child relationship.  By denying J.W.L. Aany
possession or access@ to his child, the trial court
has treated the grandparents=
statutory right to visitation as paramount to J.W.L.=s
constitutional rights as a parent.20  This not only constitutes a potential
violation of the Due Process Clause of the United States Constitution but also
runs directly counter to stated legislative policy favoring parental
involvement in children=s lives.  Neither the Due Process Clause of the United
States Constitution nor the laws of this state permit a trial court to indefinitely
deprive a presumably fit parent of his fundamental rights to care, custody, and
control of his child simply because the parent infringed on a grandparent=s
visitation rights.21




                                          IV.
Conclusion




I
empathize with the grandparents= plight in this case.  The father=s conduct in taking M.W.L. out of state in
violation of the agreed orders was wrong and potentially harmful to M.W.L.  But, the trial court=s order indefinitely
depriving this presumably fit father of his right to care, custody, and control
of his daughter is equally troubling. 
The order is not only potentially harmful to M.W.L. but also raises the
specter of potential due process violations that are beyond our reach in this
proceeding.22  Therefore, while I concur in the majority=s decision to deny J.W.L.
the relief he has requested on jurisdictional grounds, it is my hope that the
trial court will reconsider its temporary orders and, based upon J.W.L.=s repeated requests for
custody of his daughter throughout the course of the underlying case, enter
appropriate orders granting J.W.L. possession and access to his daughter during
the pendency of the underlying case to avoid the significant risk of
erroneously depriving J.W.L. of his fundamental rights as a parent.23
 
JOHN
CAYCE
CHIEF
JUSTICE
 
DELIVERED:  June 15, 2009
 
 
 




[1]The names of the parents
and parties subject to this original proceeding have been replaced with their
initials or their relationship to the child in accordance with
section109.002(d) of the family code. 
Tex. Fam. Code Ann. ' 109.002(d) (Vernon 2008); see Tex. R.
App. P. 9.8 cmt.


[2]Had relator been
successful in his motion to vacate, custody might have been returned to
relator; however, relator never asked the trial court to modify the temporary
orders so that he could have access or visitation with his
daughter.  Relator only asked for that
relief from us in this mandamus proceeding which we tried to accommodate.
 
During the
hearing on January 29, 2009, the trial court specifically asked relator whether
he was requesting any other relief, including any hearing on temporary orders
on possession or access to the child. 
Relator did not make any such request, so the hearing concluded.  Under these circumstances, we do not see how
the concurrence justifies its request to the trial court to Areconsider its temporary
orders@ when such relief has not
yet been requested by relator.  See In
re Smith, 263 S.W.3d 93, 96 (Tex. App.CHouston [1st Dist.] 2006, orig. proceeding).


[3]We no longer need to
address relator=s fourth issue because
the trial judge ruled on relator=s motion to vacate at the conclusion of its
January 2009 hearing and denied that relief; therefore, the issue is moot.


[4]We do not deny that Greene
might apply to the issue of possession or custody in this case when those
issues are actually tried and contested, but relator has not pursued that
relief in the trial court yet.


[5]The modification
provisions of Chapter 156 are incorporated into these Chapter 102 standing
provisions.  See Tex. Fam. Code
Ann. ' 156.002(b) (Vernon
2008) (AA person . . .
who, at the time of filing, has standing to sue under chapter 102 may file a
suit for modification. . . .@).


1For purposes of maintaining the
confidentiality of this original proceeding, I will refer to all parties by
their initials or relationship to the child. 
See Tex. R. App. P. 9.8; see also Tex. Fam. Code Ann. ' 109.002(d) (Vernon
2008).


2See Tex. Fam. Code Ann. ' 102.003(a)(9) (Vernon
2008).


3In a later-filed trial court brief, J.W.L.
notes that he objected to the trial court=s jurisdiction before the November 7, 2007
hearing.  The Agreed Order indicated that
each party agreed to the terms of the order Ato the extent permitted by law@ and that the trial court
Afinds that it has
jurisdiction of this case and of all the parties.@


4The Agreed Order dismissed S.L.=s petition with
prejudice.


5Subsequent temporary orders entered by the
trial court stated that J.W.L. Afiled an answer and although duly and properly
notified, did not physically appear at the hearing and wholly made default.@  Nothing in the record before this court
suggests that at the time of the hearing J.W.L. had filed any Aanswer@ to Grandparents= pleadings other than his
letter indicating his inability to appear at the hearing.


6One of the four issues J.W.L. raisesCthat the trial court
should be compelled to hear his motion to vacateChas been rendered
moot.  The trial court conducted a
hearing on that motion on January 29, 2009, and denied the motion by written
order on February 6, 2009.


7In re M.S., 115 S.W.3d 534, 547B48 (Tex. 2003) (citing Santosky
v. Kramer, 455 U.S. 745, 758B59, 102 S. Ct. 1388 (1982)).


8Troxel v. Granville, 530 U.S. 57, 66, 120 S.
Ct. 2054, 2060 (2000) (citing Quilloin v. Walcott, 434 U.S. 246, 255, 98
S. Ct. 549 (1978)).


9Id. at 65B66, 120 S. Ct. at 2060
(citing Prince v. Massachusetts, 321 U.S. 158, 166, 64 S. Ct. 438
(1944)).


10M.S., 115 S.W.3d at 547
(recognizing this substantial interest in context of termination of parental
rights).


11Id. at 548 (original
emphasis removed).


12See Troxel, 530 U.S.
at 72B73, 120 S. Ct. at 2063B64.


13See Lewelling v.
Lewelling, 796 S.W.2d 164, 168 n.8 (Tex. 1990) (recognizing that while
proceeding is not technically termination of parental rights action, it may
have such effect where mother without adequate transportation lives some
distance from son and existence of visitation rights likely will be
insufficient to allow her Ato have a substantial role in her child=s upbringing@).


14M.S., 115 S.W.3d at 549
(emphasis added).


15Tex. Fam. Code Ann. ' 153.002 (Vernon 2008) (AThe 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.@); M.S., 115
S.W.3d at 549; Lenz v. Lenz, 79 S.W.3d 10, 14 (Tex. 2002) (reiterating
legislature=s mandate that best
interest of child is primary consideration).


16Tex. Fam. Code Ann. ' 153.193 (Vernon 2008) (AMinimal Restriction on
Parent=s Possession or Access@).  Because trial courts are the factfinders that
determine what is in the children=s best interest, appellate courts have applied an
abuse of discretion standard of review.  See,
e.g., Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).  The discretion courts have in determining the
factual issue of children=s best interests,
however, is not unfettered.  See Holley
v. Adams, 544 S.W.2d 367, 371B72 (Tex. 1976) (non‑exhaustively listing
factors courts consider in determining whether termination of parental rights
is in children=s best interests); see
also In re Jane Doe 2, 19 S.W.3d 278, 282 (Tex. 2000) (applying non‑exhaustive
list of Holley factors Afor determining a minor=s best interests@ to factual determination
of best interest of minor in parental notification case).


17Wood v. Wood, 510 S.W.2d 399, 400
(Tex. Civ. App.CFort Worth 1974, no
writ).  In Wood, we lamented how
divorced parents often allow their animosity towards one another to overshadow
the concern that children maintain healthy relationships with the other parent,
harming the children in the process.  Id.  This concern is especially true when, as in
this case, one of the parties is a non-parent and the animosity between the
parent and non-parent deprives the child of a normal relationship with the
parent.


18Tex. Fam. Code Ann. ' 153.131(a) (Vernon
2008).


19See Troxel, 530 U.S.
at 68B69, 120 S. Ct. at 2061.


20The temporary orders depriving J.W.L. of
any access to M.W.L. are predicated on (1) J.W.L. having moved from Texas to
Idaho without providing notice even though he had the unlimited right to
determine M.W.L.=s primary residence, (2)
vague allegations of J.W.L. failing to take M.W.L. to a doctor when she had a
fever or to a dentist to obtain orthodontic care, and (3) Grandparents= hearsay allegations of
assaultive behavior by J.W.L. against a girlfriend whom Grandparents cannot
even identify by name.


21See Troxel, 530 U.S.
at 72B73, 120 S. Ct. at 2063B64.


22J.W.L. limited his mandamus petition to
the jurisdiction issue and did not ask this Court to determine whether the
trial court abused its discretion by ordering that J.W.L. shall have no access
to his daughter.  Thus, the parties and
the trial court should not construe this court=s denial of the mandamus
petition as reflecting how this court would rule if presented with that issue.


23See M.S., 115 S.W.3d at 549.  The majority contends that the trial court
should not reconsider its July 2008 order denying J.W.L. access to his daughter
because J.W.L. has only asked that she be returned to his Acustody.@  Among other problems with this rationale, the
majority overlooks the fact that the trial court has no discretion to enter an
order denying possession of a child to a parent or to restrict or limit a
parent=s right to access to a
child beyond what is required Ato protect the best interest of the child.@  Tex. Fam. Code Ann. ' 153.193 (Vernon
2008).  J.W.L. seeks to set aside a trial
court order that he contends has wrongfully deprived him of his parental rights
to possession of and access to his daughter. 
Contrary to the majority=s contention, Texas law requires him to do
nothing more to protect his statutory right under the family code to an order
that does not exceed restrictions on his parental rights necessary to protect
his daughter=s best interest.  Whether J.W.L. will actually avail himself of
the access granted under such an order given his jurisdictional objections is
immaterial to the question of whether he is entitled to such access as a
presumptively fit parent.


