      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                      NO. 03-18-00014-CV



                 Edward John Murphy and Sytha Kay Murphy, Appellants

                                                 v.

                      Daniel Renteria and Amy Lynn Murphy, Appellees


   FROM THE DISTRICT COURT OF BASTROP COUNTY, 423RD JUDICIAL DISTRICT
   NO. 423-3016, HONORABLE CHRISTOPHER DARROW DUGGAN, JUDGE PRESIDING



                            MEMORANDUM OPINION


               John and Sytha Kay Murphy (the Murphys) appeal from an order that denied their

request for possession of their grandson, V.R.M.1 See generally Tex. Fam. Code §§ 153.431–.434

(addressing grandparent suits for possession of or access to grandchildren). Amy Murphy is

V.R.M.’s mother, and the Murphys’ daughter. We will affirm.


                                         BACKGROUND

               Amy gave birth to V.R.M. in 2009. He lived with the Murphys most of the time but

spent irregular periods with Amy. In January of 2014, the Murphys filed suit seeking managing

conservatorship based on allegations that V.R.M. had been abused and neglected while in Amy’s

care. Sytha specified in an affidavit that Amy lived with V.R.M. “in a mobile home with no


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          We refer to the parties by their first names because most share a surname, and to the child
by his initials to protect his privacy.
electricity or running water” and that Luis Vega, the man Amy believed to be V.R.M.’s father, beat

him “on numerous occasions.” The trial court issued an agreed temporary order appointing the

Murphys temporary joint managing conservators.

                In March of 2015, Amy filed a petition asking the trial court to revoke its temporary

order and issue a final order appointing her sole managing conservator. Genetic testing subsequently

established that Daniel Renteria was V.R.M.’s father and excluded Luis Vega. The Murphys

withdrew their request for managing conservatorship and asked the trial court to appoint them

possessory conservators. See id. § 153.432(b) (permitting grandparents to file suit for “possession

of or access to a grandchild in a suit filed for the sole purpose of requesting that relief”). Daniel had

no objections, but Amy opposed their request. To overcome Amy’s objection, the Murphys had the

burden of “proving by a preponderance of the evidence that denial of possession of or access to

[V.R.M.] would significantly impair [his] physical health or emotional well-being.” See id.

§ 153.433(a)(2). After an evidentiary hearing, the trial court signed a final order appointing Amy

and Daniel joint managing conservators and denying relief to the Murphys. The order included, with

Amy’s consent, a permanent injunction prohibiting her from allowing Vega to see V.R.M. This

appeal followed.


                                            DISCUSSION

                The Murphys argue in one issue on appeal that legally and factually insufficient

evidence supports the trial court’s ruling. We review a trial court’s decision regarding grandparent

access or possession for an abuse of discretion. In re B.N.S., 247 S.W.3d 807, 808 (Tex.

App.—Dallas 2008, no pet.). A trial court abuses its discretion when it acts arbitrarily, unreasonably,

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without regard for guiding rules or principles, or without supporting evidence. In re Nationwide Ins.

Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding). Under an abuse-of-discretion

standard, the legal and factual sufficiency of the evidence are not independent grounds of error but

are relevant factors in determining whether the trial court abused its discretion. Coburn v. Moreland,

433 S.W.3d 809, 823 (Tex. App.—Austin 2014, no pet.). In this analysis, “we ask first whether the

trial court had sufficient information on which to exercise its discretion . . . and if so, whether it

acted reasonably in the application of its discretion.” Reagins v. Walker, 524 S.W.3d 757, 761 (Tex.

App.—Houston [14th Dist.] 2017, no pet.). We apply traditional sufficiency standards of review to

answer the first question. Id.; Blackwell v. Humble, 241 S.W.3d 707, 715 (Tex. App.—Austin 2007,

no pet.).

               In a legal sufficiency review, we examine the evidence in the light most favorable to

the verdict, credit favorable evidence if a reasonable fact-finder could, and disregard contrary

evidence unless a reasonable fact-finder could not. Del Lago Partners, Inc. v. Smith, 307 S.W.3d 762,

770 (Tex. 2010). In a factual sufficiency review, by contrast, we consider all the evidence in the

record and may set aside the judgment only if it is so contrary to the overwhelming weight of the

evidence that it is clearly wrong or manifestly unjust. Cain v. Bain, 709 S.W.2d 175, 176 (Tex.

1986) (per curiam); Gonzales v. Maggio, 500 S.W.3d 656, 662 (Tex. App.—Austin 2016, no pet.).

               Because the Murphys bore the burden of proof in the trial court, to succeed on their

legal sufficiency challenge they “must demonstrate on appeal that the evidence establishes, as a

matter of law, all vital facts in support of the issue.” Dow Chem. Co. v. Francis, 46 S.W.3d 237, 241




                                                  3
(Tex. 2001) (per curiam). Their factual sufficiency challenge requires them to demonstrate that “the

adverse finding is against the great weight and preponderance of the evidence.” Id. at 242.

                We begin by addressing a disagreement over the Murphys’ standing. Amy argued

to the trial court that Sytha’s affidavit was no longer accurate due to changed circumstances and, as

a result, the Murphys could not establish statutory standing. Amy specifically relied on Section

153.432(c), which requires the trial court to dismiss a grandparent’s suit if the facts alleged in the

affidavit, taken as true, do not support granting relief under Section 153.433. See Tex. Fam. Code

§ 153.432(c). The Murphys argue that the trial court would abuse its discretion if it accepted this

argument. We agree with the Murphys on this point because Section 153.432 confers standing based

on a person’s status as a grandparent rather than the strength of their affidavit. See id. § 153.432(a);

In re B.G.D., 351 S.W.3d 131, 140 (Tex. App.—Fort Worth 2011, no pet.) (holding that petitioner

had standing to sue for grandparent access because “[i]t is undisputed that [she] is the biological

grandmother of the children”).

                The Murphys argue that they should have succeeded on the merits because Sytha’s

affidavit and the testimony of their son, David Murphy, established that denying them possession

would harm V.R.M. David testified that Amy was uninterested in caring for V.R.M. during the early

years of his life and prioritized the men she dated over him. This evidence addresses Amy’s

circumstances at or before the time Murphys filed suit, but Amy testified without contradiction that

her circumstances have improved since that time. She now holds a full-time job as a dental assistant,

arranges child care for her daughter (not the subject of this suit), owns a three-bedroom house with

room for V.R.M., and lives with a man who is not abusive. The Murphys assert that they



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nevertheless need a legal right to possession of V.R.M. to allow them to step in if Amy endangers

him again, but their only evidence that Amy will endanger him is that she recently visited Vega in

prison and that he will soon be released. However, Amy agreed during her testimony that it is in

V.R.M.’s best interest that he never see Vega again and consented to the injunction barring her from

allowing Vega to contact V.R.M.

               The Murphys also assert that Amy’s plan to prevent them from seeing V.R.M. will

result in emotional harm. The Murphys’ other daughter, Tracey Chavez, testified that preventing

V.R.M. from seeing his grandparents “will have a major [e]ffect on him,” and that “it’s not going

to be pretty.” V.R.M.’s guardian ad litem offered similar testimony. But Daniel Renteria appears

to be willing to let the Murphys see their grandson, and nothing in the trial court’s order prevents

him from allowing them access. See In re Scheller, 325 S.W.3d 640, 644 (Tex. 2010) (orig.

proceeding) (per curiam) (holding that trial court abused its discretion by ordering grandparent

access in part because parent was apparently willing to allow grandparent to see grandchildren

with conditions).

               Reviewing the record under the applicable standards, the Murphys have not

demonstrated that the evidence in the record conclusively establishes that denying their request for

possession would harm V.R.M. or that the trial court’s decision is against the great weight and

preponderance of the evidence. See Dow Chem. Co., 46 S.W.3d at 241–42. We therefore conclude

that legally and factually sufficient evidence supports the trial court’s order, and we overrule the

Murphys’ issue on appeal.




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                                       CONCLUSION

              Having found no abuse of discretion, we affirm the trial court’s order.



                                            _________________________________________
                                            Edward Smith, Justice
Before Justices Baker, Triana, and Smith

Affirmed

Filed: February 13, 2019




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