Affirmed and Opinion Filed November 13, 2019




                                                       In The
                                     Court of Appeals
                              Fifth District of Texas at Dallas
                                              No. 05-18-01474-CV

               IN THE INTEREST OF A.E.M., M.S.M., AND M.M., CHILDREN


                            On Appeal from the 59th Judicial District Court
                                       Grayson County, Texas
                                 Trial Court Cause No. FA-18-0614

                                   MEMORANDUM OPINION
                                Before Justices Myers, Osborne, and Nowell
                                         Opinion by Justice Nowell

         Father appeals from an order of the trial court granting the maternal grandparents of his

children possession of and access to the children.1 In a single issue, Father contends the trial court

abused its discretion because Grandparents failed to rebut the presumption that Father was acting

in the best interest of the children. See TEX. FAM. CODE ANN. § 153.433(a). Deferring to the trial

court’s resolution of disputed facts and exercise of its broad discretion, we conclude the trial court

did not abuse its discretion by rendering the order. We affirm.

                                                  BACKGROUND

         This background is based on the evidence admitted at trial.2 Mother and Father lived in


         1
           We use pseudonyms to protect the privacy of the children. TEX. FAM. CODE ANN. § 109.002(d); TEX. R.
APP. P. 9.8.
         2
          Grandparents’ brief on appeal refers extensively to the affidavit filed in support of their original petition
seeking sole managing conservatorship of the children. This pleading and affidavit were superseded by the second
California when their first child was born in 2011. Grandparents lived near Mother and Father and

helped care for the child. Father’s parents also lived in California. In 2012, Grandparents moved

to Texas, but frequently visited Mother, Father, and their children in California. In February 2016,

Mother, Father, and the children moved to Texas. They stayed with Grandparents while looking

for a house. In May, they bought a house nearby and moved in. Grandparents supported the family

while Mother and Father saved to buy the house. The children continued to visit Grandparents

multiple times a week, sometimes staying overnight. The children each had a room of their own at

Grandparents’ house along with clothes, toys, and medications. Grandparents transported the

children to school and attended school functions. Grandmother testified the children were

extremely close to her and they formed a unique bond. Grandmother felt she assumed the role of

a parent to the children.

         Grandmother described both Mother and Father as alcoholics, but stated Father was in

denial. Mother’s friend, Melody, described Mother and Father’s relationship as very tense and

unhealthy. She testified that Mother and Father left the children with Grandparents when they went

to a nudist colony. When Mother felt the situation at home was too tense, she would send the

children to stay with Grandparents. Father’s longtime friend, Brandon, who is also Grandmother’s

son-in-law, also testified that Father would frequently leave the children with Grandparents while

he went to bars or nudist colonies. Father told Brandon that he argued with Mother often and he

would snap at her when he drank. Father never said the incidents became physical.

         Mother and Father went to marriage counseling in 2018 to deal with Mother’s alcoholism

and abandonment issues and their marital problems. Father felt that Grandmother’s lack of


amended petition and supporting affidavit. Further, the affidavit was not admitted in evidence at trial. Documents not
admitted in evidence at trial may not be considered on appeal as evidence supporting a judgment. Barnard v. Barnard,
133 S.W.3d 782, 789 (Tex. App.—Fort Worth 2004, pet. denied) (“As a general rule, documents not admitted into
evidence are not considered by an appellate court”); see also O’Donnell v. Vargo, No. 05-14-00404-CV, 2015 WL
4722459, at *4 (Tex. App.—Dallas Aug. 10, 2015, no pet.) (mem. op.) (affidavit not admitted into evidence would
not be considered on appeal from evidentiary hearing).
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boundaries contributed to his marital problems with Mother. Their last session was about a month

before Mother’s death.

       On March 30, 2018, Mother and Father left the children with Grandparents while they went

to a nudist colony. They returned sometime Easter morning, April 1, 2018. Grandmother texted

Mother about bringing the children over because they were excited about coloring Easter eggs.

Grandmother took the children to Mother’s house about 11:30 a.m. That was the last time

Grandmother saw Mother. That afternoon, around 3:30 p.m., Father found Mother in the bathtub.

After an autopsy, the coroner determined that Mother had a blood alcohol level of 0.37 and her

death was due to accidental drowning. At the time of Mother’s death, the children were seven,

five, and three years old. The children stayed with Grandparents from Sunday until Tuesday, when

Father’s parents came to town. During this time, the oldest child told Grandmother they were going

to live in California with their other grandparents.

       On April 6, 2018, Grandparents filed this suit seeking sole managing conservatorship over

the children. Grandparents obtained an ex parte temporary restraining order prohibiting Father

from removing the children from Grayson County, ordering him to deliver the children to

Grandparents, and denying him access to or possession of the children until further order of the

court. The restraining order expired after a hearing on April 18, 2018. Soon thereafter, the children

went to California to live with Father’s parents while he prepared to sell the house in Texas.

Grandmother later found out that Father had taken the oldest child out of school early. Father

moved to California in July 2018.

       In May, Grandparents amended their petition and sought only possession of and access to

the children pursuant to the grandparent access statute. TEX. FAM. CODE ANN. § 153.433. This

petition was supported by a new affidavit from Grandmother describing the close personal bond

between Grandparents and the children and stating that denying Grandparents possession of or

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access to the children would significantly impair their physical health or emotional well-being.

       The case was tried to the court on July 20, 2018. The trial court signed an order granting

grandparent access on October 2, 2018. The trial court found that the Grandparents overcame the

presumption that Father acted in the best interest of the children and proved by a preponderance

of the evidence that denial of possession of or access to the children would significantly impair the

children’s physical health or emotional well-being. The court established a possession order

granting the Grandparents possession one weekend during the fall and the spring semester in the

general vicinity of the children’s residence, and a seven-day period during the summer at any

location. In addition, the Grandparents were granted unrestricted phone, Skype, or FaceTime

access with the children during the evening hours for a duration of forty-five minutes, and on

birthdays and Christmas. The order also permits the Grandparents to send cards, letters, and gifts

to the children.

                                      STANDARD OF REVIEW

       We review a trial court’s decision to grant a grandparent’s request for access or possession

for an abuse of discretion. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig. proceeding) (per

curiam). A trial court abuses its discretion if it grants access to grandchildren when the grandparent

has not proven that denying the grandparent access to the child would significantly impair the

child’s physical health or emotional well-being. In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010)

(orig. proceeding) (per curiam) (quoting Derzapf, 219 S.W.3d at 333). This is so because “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.” Derzapf, 219 S.W.3d at 333 (quoting In re Prudential Ins. Co. of Am., 148

S.W.3d 124, 135 (Tex. 2004) (orig. proceeding)).

       In family law cases, the abuse of discretion standard of review overlaps with traditional

sufficiency standards of review. See In re A.B.P., 291 S.W.3d 91, 95 (Tex. App.—Dallas 2009, no


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pet.). As a result, legal and factual insufficiency are not independent grounds of reversible error,

but instead are factors relevant to our assessment of whether the trial court abused its discretion.

Id. To determine whether the trial court abused its discretion, we consider whether the trial court

had sufficient evidence upon which to exercise its discretion and whether it erred in its exercise of

that discretion. Id.

        When, as here, findings of fact are neither properly requested nor filed, we imply all

necessary findings of fact to support the trial court’s order. In re W.C.B., 337 S.W.3d 510, 513

(Tex. App.—Dallas 2011, no pet.); Waltenburg v. Waltenburg, 270 S.W.3d 308, 312 (Tex. App.—

Dallas 2008, no pet.). However, when the appellate record includes the reporter’s record, the trial

court’s implied findings may be challenged for legal and factual sufficiency. W.C.B., 337 S.W.3d

at 513. In a legal sufficiency review, we consider the evidence in the light most favorable to the

court’s order and indulge every reasonable inference that supports it. See City of Keller v. Wilson,

168 S.W.3d 802, 822 (Tex. 2005); In re S.E.K., 294 S.W.3d 926, 930 (Tex. App.—Dallas 2009,

pet. denied). When considering a challenge to the factual sufficiency of the evidence, we consider

all the evidence and determine whether the evidence supporting the order is so weak or so against

the overwhelming weight of the evidence that the order is clearly wrong and manifestly unjust.

See City of Keller, 168 S.W.3d at 822. When the evidence is conflicting, we must presume that the

fact-finder resolved the inconsistency in favor of the order if a reasonable person could do so. See

id. at 821. The trial court does not abuse its discretion if some evidence of a substantial and

probative character exists to support the trial court’s decision. S.E.K., 294 S.W.3d at 930. The trial

court is in the best position to observe the witnesses and their demeanor, and we give the court

great latitude when determining the best interest of a child. Id.

                                         APPLICABLE LAW

        The Legislature amended the grandparent access statute in 2005 in light of the plurality


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decision in Troxel v. Granville, 530 U.S. 57 (2000). In Troxel, the Supreme Court held a

Washington statute allowing “any person” to petition for visitation with children “at any time” was

unconstitutional because it infringed on a parent’s right to make decisions concerning the care,

custody, and control of their children. Id. at 60 & 67 (reversing order allowing grandparent

visitation). Family code section 153.433(a) now permits a court to order reasonable possession of

or 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;

       (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.

TEX. FAM. CODE ANN. § 153.433(a). “The Legislature set a high threshold for a grandparent to

overcome the presumption that a fit parent acts in his children’s best interest: the grandparent must

prove [by a preponderance of the evidence] that denial of access would ‘significantly impair’ the

children’s physical health or emotional well-being.” Derzapf, 219 S.W.3d at 334 (citing TEX. FAM.

CODE ANN. § 153.433(a)(2)).

                                            DISCUSSION

       The parties agree the only element of section 153.433(a) at issue is the second, whether

Grandparents overcame the presumption that a parent acts in the best interest of the child by
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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. TEX. FAM. CODE

ANN. § 153.433(a)(2). Father argues Grandparents failed to overcome the high threshold required

by section 153.433. He contends Grandparents presented no evidence the children were suffering

any impairment from the denial of access, much less significant impairment. Father testified the

children were thriving, doing extremely well, and have shown no indications they required

counseling or psychological treatment. They live in a 2400 square foot home with his parents, the

oldest has her own room, the two boys share a bedroom, they are within walking distance of school,

and the oldest will advance to second grade in the Fall. The children are not in any physical danger

and are doing psychologically well. Father maintains the trial court abused its discretion because

the supreme court in Derzapf and Scheller found that evidence stronger than the evidence

Grandparents presented in this case failed to rebut the parental presumption.

       In Derzapf, the children’s maternal grandmother sought access to them after the mother

died of leukemia. Derzapf, 219 S.W.3d at 328–29. A court-appointed psychologist opined that the

children, who had suffered from depression after their mother’s death, would benefit from contact

with their grandparents and had “lingering sadness” about being cut off from them. Id. at 330.

However, the psychologist also explained that the children’s sadness had “not manifested as

depression or behavioral problems or acting out” or risen “to a level of significant emotional

impairment.” Id. The supreme court held that the grandmother had not proved “that denial of

access would ‘significantly impair’ the children’s physical health or emotional well-being” and

thus did not meet the “high threshold” set to overcome “the presumption that a fit parent acts in

his children’s best interest.” Id. at 333–34.

       In Scheller, the grandparent failed to satisfy the statutory burden of section 153.433 even

though he presented evidence of the children’s behavior and circumstances influencing their

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mental and physical health including: displays of anger; instances of isolated bed wetting and

nightmares; witnesses opining that denial of access would impair the children’s physical or

emotional development; and the significant impact of the loss of maternal family members on the

children. Scheller, 325 S.W.3d at 643. This evidence, however, was “not enough to satisfy [the

grandparent’s] hefty statutory burden, and we hold that the trial court abused its discretion in

issuing a temporary order for access to and possession of the children.” Id. at 643–44. Nothing in

the record indicated anything more substantial than the children’s understandable sadness over

losing a family member and missing their grandparent. Id.

       Father contends Grandparents presented evidence that was less compelling than in

Scheller. He argues there was no evidence that the children displayed anger or other signs of

impairment without access to Grandparents. Grandparents counter that in Scheller, the father took

responsible, precautionary steps to ensure the children were able to cope with their grief, sent the

child to counseling, and was willing to grant some access to the grandparent on certain conditions.

Scheller, 325 S.W.3d at 643–44. Here, Father has not provided counseling for the children and

intends to deny all access to Grandparents. Father also contends Grandparents failed to present

psychological evidence as in Derzapf. While expert testimony was presented in Derzapf, the

supreme court did not hold that such evidence is required to satisfy the statutory standard. See

Derzapf, 219 S.W.3d at 333–34.

       The leading cases that have overturned orders granting grandparent access have done so,

at least in part, based on evidence the parent would not deny all access to the children by the

grandparent. See Troxel, 530 U.S. at 60–61 (mother wanted to limit grandparent visits to once a

month); Scheller, 325 S.W.3d at 643–44 (father willing to allow grandfather to see children on

certain conditions); Derzapf, 219 S.W.3d at 331 n.6 (father indicated he would allow some access

under his supervision, but not court-ordered access); Mays-Hooper, (grandparents failed to rebut

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presumption where parent would allow some access, just not as much as grandparents desired); In

re J.M.T., 280 S.W.3d 490, 493 (Tex. App.—Eastland 2009, no pet.) (concluding denial of

possession of or access to the child is “an express element in obtaining grandparent access” under

section 153.433(a)). Here, Father was clear in his testimony that, absent a court order, he would

not allow Grandparents to have access to or possession of the children.

       Turning to the significant impairment question, we agree there is no evidence that denial

of grandparent access would significantly impair the children’s physical health. However, we

conclude there is sufficient evidence that denying Grandparents all access to the children would

significantly impair the children’s emotional well-being. Grandmother testified that denying

Grandparents all access to the children would not be in their best interest. Melody and Brandon

testified they did not believe Father was acting in the best interest of the children by denying

Grandparents visitation with the children. Grandmother testified about her grief over the death of

her daughter and that the children lost their mother and their grandmother, lost their home, moved

away with grandparents they rarely saw. Grandmother, “can only imagine the emotional trauma

that they are experiencing at this moment.”

       In addition, there was evidence the trial court could have believed that Father drank heavily,

was an alcoholic, and in denial about his alcoholism. Father confirmed his intent to continue to go

to nudist resorts by himself. Father also testified he has not sought counseling after the death of

Mother.

       Father testified that the children were doing well. He explained he was grieving the loss of

his wife, but the children did not seem affected. They talk about fond memories of Mother or

remember things they did together, but they do not say they miss Mother, they are not crying or

showing emotional turmoil. Father testified the children have not asked about Grandparents or

asked to see or speak with them. Regarding whether denial of grandparent access would impair

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the children’s health or emotional well-being, Father testified the children were healthy, thriving,

and doing well emotionally. However, the trial court, as the sole judge of the credibility of the

witnesses, could reasonably have disbelieved this evidence and we must give substantial deference

to the trial court’s determination of the weight and credibility of the evidence. Reisler v. Reisler,

439 S.W.3d 615, 619–20 (Tex. App.—Dallas 2014, no pet.).

       On this record, we cannot say the trial court abused its discretion by finding that

Grandparents overcame the parental presumption by a preponderance of the evidence that denial

of access would significantly impair the children’s physical health or emotional well-being.

                                           CONCLUSION

       We conclude under the facts presented in this case and the applicable law that the trial court

did not abuse its discretion in ordering grandparent possession of and access to the children under

family code section 153.433(a). We affirm the trial court’s order.




                                                   /Erin A. Nowell/
                                                   ERIN A. NOWELL
                                                   JUSTICE

181474F.P05




                                               –10–
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                        JUDGMENT

 IN THE INTEREST OF A.E.M., M.S.M.,                   On Appeal from the 59th Judicial District
 AND M.M., CHILDREN                                   Court, Grayson County, Texas
                                                      Trial Court Cause No. FA-18-0614.
 No. 05-18-01474-CV                                   Opinion delivered by Justice Nowell.
                                                      Justices Myers and Osborne participating.

       In accordance with this Court’s opinion of this date, the trial court’s October 2, 2018
order granting grandparent possession and access is AFFIRMED.

        It is ORDERED that appellees Elaine T. Albritton and Steven N. Albritton recover their
costs of this appeal from appellant Mark McAndrews.


Judgment entered this 13th day of November, 2019.




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