                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH


                              NO. 2-07-184-CV


IN THE INTEREST OF J.P.C., A CHILD

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        FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY

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                                 OPINION

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                               I. Introduction

      In one issue, Appellant Dayna Kay C. argues that the trial court abused

its discretion when it granted Appellees Richard and Maurine C.’s petition for

grandparent access. We reverse and render.

                      II. Factual and Procedural History

      Dayna and Robert C. were married May 20, 1996. They had one child,

J.P.C., who was born March 29, 1999. Dayna filed for divorce from Robert in

May 2002. After the divorce was filed, Robert went to live with his parents,
Richard and Maurine C. (“the grandparents”). Subsequently, the trial court

entered temporary orders awarding Dayna primary managing conservatorship

and awarding Robert standard possession subject to the grandparents’

supervision.

      In March or April 2003, the divorce proceedings were halted when Robert

was diagnosed with a terminal disease. Robert died on May 9, 2004. J.P.C.

was five years old at the time. On May 18, 2004, the grandparents filed an

original petition for grandparent access. On January 31, 2007, the trial court

issued a rendition letter granting the grandparents possession of and access to

J.P.C.    On May 18, 2007, the trial court signed its order granting the

grandparents possession and access. J.P.C. was eight years old at that time.

Dayna brought this appeal.

                             III. Standard of Review

      Before we determine the merits of Dayna’s appeal, we must first decide

what standard of review applies to a trial court’s determination of grandparent

access and possession under section 153.433 of the Texas Family Code. 1 T EX.




      1
       … While both parties assert that the trial court’s determination of
grandparent access and possession is reviewed under an abuse of discretion
standard, they do not cite, nor have we found, any authority specifically
applying an abuse of discretion review to section 153.433 appeals. Therefore,
we address the issue as a threshold matter here.

                                       2
F AM. C ODE A NN. § 153.433 (Vernon Supp. 2008). Although section 153.433

does not specifically include a best interest analysis, section 153.002 dictates

that the 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. Id. The determination of a minor’s best interest requires

the court to balance the possible benefits and detriments to the minor in

granting grandparent access and possession.2             This type of balancing

necessarily involves the exercise of judicial discretion and should be reviewed

on that basis. See In re Doe 2, 19 S.W.3d at 281. Moreover, this type of

review is used in many other family law contexts; for instance, in child support,

adoption, and custody cases the trial court’s best interest finding is reviewed

for an abuse of discretion.3 Id. Because of the discretionary nature of the trial

court’s determination and the similarity to review of best interest findings in

other family law contexts, we hold that abuse of discretion is the proper




      2
       … Cf. In re Doe 2, 19 S.W.3d 278, 281 (Tex. 2000) (observing that, in
evaluating a minor’s request for waiver of parental notification to obtain an
abortion, the trial court’s determination of the minor’s best interests require that
the trial court balance the possible benefits and detriments to the minor in
notifying her parents).
      3
       … See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990);
In re W.E.R., 669 S.W.2d 716, 716 (Tex. 1984); Gillespie v. Gillespie, 644
S.W.2d 449, 451 (Tex. 1982).

                                         3
standard of review for a trial court’s determination regarding grandparent

access and possession.

      To determine whether a trial court abused its discretion, we must decide

whether the trial court acted without reference to any guiding rules or

principles; in other words, we must decide whether the act was arbitrary or

unreasonable. Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-

42 (Tex. 1985), cert. denied, 476 U.S. 1159 (1986). Merely because a trial

court may decide a matter within its discretion in a different manner than an

appellate court would in a similar circumstance does not demonstrate that an

abuse of discretion has occurred. Id. An abuse of discretion does not occur

where the trial court bases its decisions on conflicting evidence. In re Barber,

982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding). Furthermore, an abuse

of discretion does not occur as long as some evidence of substantive and

probative character exists to support the trial court’s decision. Butnaru v. Ford

Motor Co., 84 S.W.3d 198, 211 (Tex. 2002). A trial court has no discretion

in determining what the law is or applying the law to the facts, even when the

law is unsettled. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex.

2004).

      In Dayna’s sole issue on appeal, she argues that the trial court abused its

discretion when it granted the grandparents access to J.P.C. because the

                                       4
evidence was both legally and factually insufficient to support that decision.

In appropriate cases, legal and factual sufficiency are relevant factors in

assessing whether the trial court abused its discretion. Beaumont Bank, N.A.

v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Tex. Dep’t of Health v. Buckner,

950 S.W.2d 216, 218 (Tex. App.—Fort Worth 1997, no writ). Furthermore,

when an abuse of discretion standard of review applies to a trial court’s ruling,

findings of fact and conclusions of law aid us in reviewing the propriety of the

ruling by providing us with an explanation for the ruling. Chrysler Corp. v.

Blackmon, 841 S.W.2d 844, 852 (Tex. 1992); Samuelson v. United Healthcare

of Tex., Inc., 79 S.W.3d 706, 710 (Tex. App.—Fort Worth 2002, no pet.).




                                       5
                           IV. Grandparents Access

A. Applicable Law

      Section 153.433 of the Texas Family Code sets forth the requirements

that must be met before a court may order grandparent access to a grandchild. 4

See T EX. F AM. C ODE A NN. § 153.433. The statute presumes that a parent acts

in the child’s best interest, and it permits a grandparent to obtain court-ordered




      4
      … The court shall order reasonable possession of or access to a
grandchild by a grandparent if:

            ....

      (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.

      T EX. F AM. C ODE A NN. § 153.433(2)–(3).

                                        6
access only upon a showing that denial of access will “significantly impair the

child’s physical health or emotional well-being.” In re Derzapf, 219 S.W.3d

327, 333 (Tex. 2007) (orig. proceeding).

      The Legislature has set a high threshold for a grandparent to overcome

the presumption that a parent acts in his or her child’s best interest: the

grandparent must prove that denial of access would “significantly impair” the

child’s physical health or emotional well-being.        T EX. F AM. C ODE A NN .

§ 153.433(2) (emphasis added); see Derzapf, 219 S.W.3d at 334. This high

threshold exists so that a court will refrain from interfering with child-rearing

decisions made by a parent simply because the court believes that a “better

decision” could have been made. See Derzapf, 219 S.W.3d at 334 (quoting

Troxel v. Granville, 530 U.S. 57, 73, 120 S. Ct. 2054, 2064 (2000)).

B. Overcoming the Statutory Presumption

      We must now determine whether the grandparents in this case presented

sufficient evidence to overcome the presumption enunciated in section

153.433.    To succeed on their claim, the grandparents had to prove by a

preponderance of the evidence that the denial of access would “significantly

impair” J.P.C.’s physical health or emotional well-being. See Derzapf, 219

S.W.3d at 334.




                                       7
      In an effort to demonstrate that the denial of access would significantly

impair J.P.C., the grandparents urge us to consider their significant and lengthy

past contact with J.P.C. that occurred in their home while they cared for Robert

during the divorce proceedings. They argue that since their access to J.P.C.

had been limited and restricted after Robert’s death, J.P.C.’s behavior was

“different” than it had been when they were able to see each other

regularly—that J.P.C. was “longing.” Maurine testified that when they were

able to have a supervised visit at the park “[J.P.C.] would take me off and—just

take me by the hand and want to go off and, you know, sit under the slide and

just sit there and just be there. She just wanted to be with me.” Richard

testified that Dayna’s supervision of their visits with J.P.C. “caused [J.P.C.]

discomfort” and that J.P.C. acted differently, appearing inhibited, pensive, and

superficial when Dayna was present.

      The grandparents also argue that a clear visitation schedule was good for

J.P.C. because it was not in J.P.C.’s best interest to have the constant pulling

back and forth between themselves and Dayna as they tried to organize

visitations. They express their fear that without a court order it would become

almost impossible to establish regular visits, and as a result, J.P.C.’s memory

of her father would dwindle and her father’s side of the family would not be

able to be a part of her life. They argue that their fear was evidenced by the

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fact that J.P.C. threw pictures of her father into the trash. The grandparents

also point to a letter that Dayna wrote to J.P.C.’s kindergarten teacher in which

Dayna described Robert’s illness and his “abnormal behaviors and verbal

abusiveness” as an example of how Dayna was, according to the grandparents,

“making every effort to control [J.P.C.’s] memor[y] of her father.”

      We have closely reviewed the record in this case for evidence that denial

of access would significantly impair J.P.C.’s physical health or emotional well-

being, and we are unpersuaded by the grandparents’ arguments. Our review

of the record shows that the grandparents have not presented any probative

evidence to show that J.P.C.’s physical or emotional health would be

significantly impaired by the denial of access. See Butnaru, 84 S.W.3d at 211.

Instead, the grandparents have offered only bare, unsupported allegations that

the denial of access would significantly impair J.P.C.

      For instance, although they argue that limited and restricted access to

J.P.C. was, in their opinion, causing her distress and causing her to act

“different, inhibited, pensive, and superficial,” the only evidence they offer to

show that J.P.C. was distressed was Maurine’s testimony regarding her

interaction with J.P.C. at the park. However, they do not explain how J.P.C.’s

alleged “discomfort” amounts to significant impairment, nor do they offer any

evidence connecting J.P.C.’s “different, inhibited, pensive, and superficial”

                                       9
behavior to the visitation schedule or Dayna’s supervision of their visits.

Instead, the “evidence” they raise is merely their own characterization of

J.P.C.’s behavior, and their conclusion that such behavior was the result of the

limited and restricted access.

      Further, while the grandparents argue that without regular, court-ordered

visits, J.P.C. would be significantly impaired because her memory of her father

would dwindle, the grandparents have not presented any probative evidence to

support their belief. For instance, although the grandparents rely on the fact

that J.P.C. threw pictures of her father into the trash as evidence that J.P.C.’s

memory of her father was dwindling, the record clearly shows that this event

occurred during Dayna and Robert’s divorce proceedings, while J.P.C. was

regularly visiting their house during Robert’s periods of visitation, and not

subsequent to Robert’s death. Thus, the grandparents’ reliance on this piece

of evidence is misplaced.      Similarly, the grandparents’ characterization of

Dayna’s letter to J.P.C.’s kindergarten teacher as evidence that Dayna was

attempting to “control [J.P.C.’s] memor[y] of her father” is also unfounded.

Rather, the record shows that the letter was Dayna’s attempt to ease J.P.C.’s

transition after the loss of her father by informing her teacher of the difficulties

that J.P.C. had faced and issues that may arise as a result. Indeed, J.P.C.’s

teacher testified that the letter Dayna gave her “was extremely helpful” in

                                        10
letting her know what she might be dealing with in regards to J.P.C. Moreover,

the grandparents have not presented any evidence showing that J.P.C. has

been unable to remember her father. In contrast, the record shows that after

Robert’s death, J.P.C. had pictures of him in her room and that “she [would]

have them up for a while. . . and then she [would] take them down.” 5

      Furthermore, the grandparents’ position that the denial of court-ordered

visitation would significantly impair J.P.C. is based completely on their


      5
       … The testimony regarding J.P.C.’s interaction with her father’s pictures
after his death was confusing, at best.

      Q: Can you tell the Court whether or not there are any photos of
      your deceased husband in your home?

      A: Yes, there are.

      Q: Are there any in your daughter’s room?

      A: Yes, there are.

      Q: And what has she done with the photos in her room of her dad?

      A: She would do different things at different times. During the
      divorce proceedings. . . . The photographs that had been in my
      room, she had put them away. Fortunately, fished some of them
      out of the trash can and take them and hide those.

      Q: Since [Robert’s] death, has there been any activity of your
      daughter with her dad’s pictures?

      A: Yes. There’s still activity to where she’ll have them up for a
      while. Then she’ll take them down.

                                      11
expressed feeling that it was not in J.P.C.’s best interest to have the constant

pulling back and forth between themselves and Dayna, and their fear that

without the court order it would become impossible to establish regular visits.

However, there is no evidence that the schedule that existed before litigation,

although not as frequent as the grandparents would have liked, was harming

J.P.C.; again, this is just Maurine and Richard’s opinion that regular,

unsupervised visits would be better. With no other evidence to demonstrate

how J.P.C. would be significantly impaired, these arguments, in and of

themselves, are only reflections of the grandparents’ fears and speculations and

do not support the trial court’s finding that the grandparents overcame the

statutory presumption.

      Significantly, the only testimony presented by the grandparents on the

issue of whether J.P.C. was significantly impaired by the denial of access was

their own testimony and the testimony of Karen, J.P.C.’s paternal aunt, who

testified that if the grandparents were not given access, J.P.C. would have a

lot of questions as to why. But “questions” are not evidence of significant

impairment.    Once again, other than their own opinions and that of an

interested, nonexpert witness, the grandparents produced no evidence that

J.P.C. would be significantly impaired in the absence of court-ordered access.

      In contrast, Dayna presented evidence demonstrating that J.P.C. was not

                                      12
significantly impaired by the denial of access. While the grandparents allege

that the limited and restricted visits were causing J.P.C. distress, Dayna points

out that both the grandfather and the paternal aunt actually testified that J.P.C.

was a happy little girl. Similarly, J.P.C.’s kindergarten teacher testified that

J.P.C. was a loving, sweet child who was very social and interactive with

others. Moreover, Dayna points out that although the grandparents claim that

the denial of visitation would significantly impair J.P.C., they actually made no

effort to contact Dayna to set up a visitation schedule after Robert’s death;

instead, they immediately filed a petition for grandparent access.         Lastly,

Dayna argues that the imposition of visitation would serve only to make J.P.C.

live under the constraint of a court order, an action that was unnecessary

because Dayna was already offering the grandparents supervised visits with

J.P.C.

      After reviewing the record, we determine that the evidence produced by

the grandparents, largely consisting of their own feelings and speculations, did

not rise to the level of proving by a preponderance of the evidence that denial

of access would significantly impair the physical health or emotional well-being

of J.P.C. The mere opinion of the grandparents themselves and an interested,

nonexpert witness that the grandparents should be granted access does not

overcome the statutory presumption, nor does it support the court’s

                                       13
interference with Dayna’s parental rights by awarding the grandparents court-

ordered access to J.P.C. Thus, the grandparents have failed to show that the

denial of access would significantly impair J.P.C.’s physical or emotional well-

being. Because a trial court has no discretion in applying the law to the facts,

the trial court’s determination that the statutory presumption was overcome

was an abuse of discretion. See In re Prudential Ins. Co. of Am., 148 S.W.3d

at 135.

                                V. Conclusion

      Having determined that the grandparents failed to overcome the statutory

presumption by proving by a preponderance of the evidence that the denial of

access would significantly impair J.P.C.’s physical health or emotional well-

being, we hold that the trial court abused its discretion in awarding the

grandparents access to J.P.C. Accordingly, we reverse the trial court’s order

and render judgment denying the grandparents’ petition for access.




                                           BOB MCCOY
                                           JUSTICE


PANEL B:    LIVINGSTON, WALKER, and MCCOY, JJ.

WALKER, J. concurs without opinion.


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DELIVERED: July 17, 2008




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