                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                               NO. 02-14-00079-CV


IN RE MELINDA STEARNS                                                   RELATOR


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                            ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION 1

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      Relator Melinda Stearns (Mother) sued real party in interest Chad Stearns

(Father) for divorce and sought sole custody of their child. Father countersued.

After a jury trial on the conservatorship issues, the jury found that Mother should

be sole managing conservator and that Father should not be a possessory

conservator. The trial court heard the remaining issues and signed a judgment

conforming to the jury verdict. But the trial court then granted Father’s motion for

new trial on the sole ground that his


      1
       See Tex. R. App. P. 47.4, 52.8(d).
      due process rights under the 14th Amendment of the United States
      Constitution and Article I, Section 19 of the Texas Constitution were
      violated when the jury did not name [him] a possessory conservator
      in Question #5 of the jury charge, creating a de facto termination
      under a preponderance of the evidence standard, rather than a clear
      and convincing standard.

In conjunction with that order, the trial court also granted Father access to the

child. Mother filed a petition for writ of mandamus in this court. Because we hold

that the trial court abused its discretion by contravening the jury’s verdict, we

conditionally grant mandamus relief.

      After finding that Mother should be sole managing conservator of the child,

the jury answered the following question:

      QUESTION 5

               Should [Father] be named possessory conservator of the
      child?

             A parent who is not appointed managing conservator shall be
      appointed possessory conservator unless the appointment is not in
      the best interest of the child and possession or access by the parent
      would endanger the physical or emotional welfare of the child. A
      parent who is not appointed managing or possessory conservator
      may be ordered to perform other parental duties, including paying
      child support. Therefore, answer the following question “Yes” unless
      you find from a preponderance of the evidence that appointment of
      [Father] is not in the best interest of the child and that possession or
      access by [Father] would endanger the physical or emotional welfare
      of the child.

               Answer “Yes” or “No.”

The jury answered, “No.”

      We note that the possibility that the jury could determine that Father should

not be a conservator of the child was not a surprise: Mother had requested that


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Father not be named a possessory conservator or have access in her live

petition. Father did not specially except to the petition, nor did he object to the

above jury charge question.

      After the trial court signed a judgment in accordance with the verdict,

Father filed a motion for new trial, arguing in part that sections 105.002(c) and

153.191 of the family code are unconstitutional as applied to him, and he

contended that

      [b]ecause of the [parental] right’s elevated status, the standard of
      proof is elevated from “preponderance of the evidence” to “clear and
      convincing evidence.” . . .

      ....

             The application of Section 153.191 to [Father] in this case and
      the court’s ruling is a denial of constitutional rights of due process in
      that the court’s ruling operates as a de facto termination of the
      parental rights of [Father] to care for, control, educate and manage
      the upbringing of his child with a lower standard of proof than that
      required by Section 161.001 Texas Family Code and the United
      States Constitution, which requires proof by clear and convincing
      evidence that a parent has committed any of a number of acts listed
      in the statute.

      A trial court’s stated reasons for granting a motion for new trial are subject

to mandamus review on the merits. 2 The Supreme Court of Texas has held,

      [A] trial court does not abuse its discretion so long as its stated
      reason for granting a new trial (1) is a reason for which a new trial is
      legally appropriate (such as a well-defined legal standard or a defect
      that probably resulted in an improper verdict); and (2) is specific
      enough to indicate that the trial court did not simply parrot a pro


      2
        In re Toyota Motor Sales, U.S.A., Inc., 407 S.W.3d 746, 759 (Tex. 2013)
(orig. proceeding).

                                     3
      forma template, but rather derived the articulated reasons from the
      particular facts and circumstances of the case at hand. 3

      While the trial court’s reason here is specific, it is not a legally appropriate

reason. The trial court’s order granting a new trial based on Father’s “de facto”

termination argument violates section 105.002(c)(1)(C) of the family code, which

provides that a trial court may not “contravene a jury verdict” on the issue of the

appointment of a possessory conservator. 4 The order also ignores the different

burdens of proof in custody and termination cases. 5 Finally, the trial court’s order

overlooks the law that allows a parent, even a nonconservator like Father, to

seek modification of a conservatorship order and that gives a trial court discretion

to grant modification if it is in the child’s best interest and the parent’s or child’s

circumstances have materially and substantially changed since the order was

rendered. 6    It is this law that differentiates Father from parents whose




      3
      In re United Scaffolding, Inc., 377 S.W.3d 685, 688–89 (Tex. 2012) (orig.
proceeding).
      4
         See Tex. Fam. Code Ann. § 105.002(c)(1)(C) (West 2014).
      5
       See In re J.A.J., 243 S.W.3d 611, 616 (Tex. 2007) (contrasting the
quantum of proof required to support termination from that required to support a
conservatorship decision); Tex. Fam. Code Ann. § 105.005 (West 2014)
(providing that findings must be based on a preponderance of the evidence
unless otherwise provided by title 5 of the family code); cf. id. § 161.001 (stating
that evidence supporting findings in termination proceedings must be clear and
convincing).
      6
         Tex. Fam. Code Ann. §§ 102.003(a)(1), 156.001–.002, 156.101 (West
2014).

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relationships with their children have been permanently severed, and it is this law

that provides Father and other similarly situated parents due process. 7

      While it is true, as Father argues, that Mother could appeal the granting of

his motion for new trial after the trial court enters a final judgment, whether that

appeal would be an adequate remedy “depends on a careful analysis of the costs

and benefits of interlocutory review.” 8 In child custody cases, courts often grant

mandamus relief because “justice demands a speedy resolution” and appeals

are “frequently inadequate to protect the rights of parents and children.” 9 In this

case, a jury determined that Father should not be a conservator of his two-year-

old son. With the trial court’s granting of Father’s motion for new trial, Father

retained court-ordered visitation despite a jury’s decision that possession or

access by Father would endanger the child’s physical or emotional welfare. The

further delay of a new trial and appeal and the related potential emotional




      7
        See J.A.J., 243 S.W.3d at 617 (rejecting parent’s argument that requiring
separate challenges to conservatorship decisions and termination orders will
result in the de facto termination of parental rights for parents who win their
termination appeals and noting that the family code “guards against that
possibility,” citing sections 102.003, 156.001, and 156.101 of the family code).
      8
       In re Dep’t of Family and Protective Servs., 273 S.W.3d 637, 645 (Tex.
2009) (orig. proceeding).
      9
       Id. (internal quotation marks and citations omitted).


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hardship on the child are enough for this court to conclude that an appeal would

not be an adequate remedy in this case. 10

       Accordingly, we conditionally grant Mother’s petition for writ of mandamus.

We are confident that the trial court will promptly vacate its January 17, 2014 and

January 24, 2014 orders granting Father’s motion for new trial as well as its

January 17, 2014 interim order granting Father access to the child, and the writ

will issue only if the trial court fails promptly to do so.


                                                        /s/ Lee Ann Dauphinot
                                                        LEE ANN DAUPHINOT
                                                        JUSTICE

PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

DELIVERED: April 17, 2014




       10
       See In re Reiter, 404 S.W.3d 607, 611 (Tex. App.—Houston [1st Dist.]
2010, orig. proceeding).

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