                                    NO. 07-04-0577-CV

                              IN THE COURT OF APPEALS

                       FOR THE SEVENTH DISTRICT OF TEXAS

                                       AT AMARILLO

                                          PANEL D

                                  JANUARY 12, 2005
                           ______________________________

                         In re WILLIAM CLIFTON McELHANEY,

                                                                         Relator
                         _________________________________

                                 Original Proceeding
                          _______________________________

Before QUINN, REAVIS and CAMPBELL, JJ.

       Pending before the court is the petition for a writ of mandamus filed by William

Clifton McElhaney. Through it, he requests that we order the judge of the 251st District

Court to vacate his order denying McElhaney’s motion to dismiss the petition in a suit

affecting the parent-child relationship filed by the real parties-in-interest (Gloria Kay Rawls

and Raymond Leigh Rawls, the maternal grandparents of the minor child) for lack of

standing and to compel the trial court to enter an order dismissing the suit. For the reasons

discussed below, we deny the petition.

       A grandparent has standing to file an original suit requesting managing

conservatorship of a minor child when “the order requested is necessary because the

child’s environment presents a serious question concerning the child’s physical health or
welfare.” TEX . FAM . CODE ANN . §102.004(a)(1) (Vernon 2002).1 Furthermore, abusive or

violent conduct as well as drug-related criminal activity by a parent can support a

conclusion that a child’s physical or emotional well-being is being endangered. In re D.C.,

128 S.W.3d 707, 715-16 (Tex. App.–Fort Worth 2004, no pet.).

        Here, evidence of record discloses that McElhaney’s five-year-old child had lived

with the child’s paternal grandmother since he was about six months old. When she died

in January of 2004, the child went to live with McElhaney and McElhaney’s sister for

several weeks. During that time, McElhaney allegedly assaulted his sister, who then called

both the police and Child Protective Services. Evidence indicated that he previously had

assaulted his wife and had a “real bad temper.” After the assault upon McElhaney’s sister,

the child went to live with the Rawls. The parties eventually agreed that McElhaney could

regain custody of the youth if, among other things, he underwent periodic drug testing (i.e.

hair follicle testing and urinalysis) and the results of those tests were negative. The

agreement later was memorialized in a temporary court order.

         Though McElhaney alleged that he ceased using methamphetamine on January 1,

2004, he nevertheless failed his first hair follicle test. Furthermore, when asked to undergo

a urinalysis per the temporary order and on 24 hours notice, it took five days for him to

appear and comply. He did pass that test, however.

        1
           Relator interjects the element of immediacy into the test by suggesting that there must be an
imm ediate concern for the child’s safety or welfare. Though that indicia originally appeared in §11.03(b)(1)
of the Tex as Fa mily Code, the word was removed when the statute was recodified into §102.004(a)(1) of the
same code. Given that the legislature excluded the term from the recodification, we must hold that it intended
to excise the nee d for im me diacy from the equa tion. See Cam eron v. Terrell & G arrett, Inc., 618 S.W.2d 535,
540 (Tex. 1981) (stating that “we believe every word excluded from a statu te m ust . . . be presumed to have
been excluded for a purpose”). So, because Von Behren v. Von Behren, 800 S.W.2d 919 (Tex. App.–San
An tonio 1990, writ denied), a case cited by the Relator for the proposition that there must also be an
imm ediate concern for the ch ild’s welfare, involve d §11 .03(b)(1) as opposed to §102.004(a)(1), it is not
con trolling.

                                                       2
       That he failed the hair follicle test and delayed the urinalysis for five days is some

evidence from which the trial court could reasonably question whether McElhaney had

stopped taking drugs. This, coupled with the evidence of relator’s temper and assaults

upon his wife and sister, provided basis for the trial court to conclude that serious questions

regarding the child’s physical health or welfare existed if McElhaney was allowed to regain

custody of the child. At the very least, questions of fact existed concerning the child’s

safety and welfare, and because they did, we cannot grant mandamus. See In re Trinity

Universal Ins. Co., 64 S.W.3d 463, 466 (Tex. App.–Amarillo 2001, orig. proceeding)

(holding that an appellate court cannot resolve questions of fact in an original mandamus

proceeding).

       Accordingly, the petition for a writ of mandamus is denied.



                                                   Brian Quinn
                                                     Justice




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