                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00362-CV


IN RE NORMAN O. NICKELBERRY                                            RELATOR


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                           ORIGINAL PROCEEDING

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                         MEMORANDUM OPINION1

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       In this original proceeding, Relator Norman O. Nickelberry argues that the

trial court abused its discretion by awarding Real Party in Interest Janice

McKnight grandparent access to his daughter D.J.M. without a showing that she

had standing to file suit and without a showing that the denial of access would

―significantly impair the child‘s physical health or emotional well-being.‖

Nickelberry also filed an emergency motion for temporary relief, asking this court

to stay the trial court‘s October 7, 2010 oral order granting McKnight access to



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   See Tex. R. App. P. 47.4., 52.8(d).
and possession of D.J.M. We granted Nickelberry‘s motion for temporary relief

and requested a response from McKnight. We will conditionally grant the writ.

      Nickelberry also filed a motion to strike statements and documents in

McKnight‘s response because they are not part of the appellate record and

moved for sanctions. The affidavit of which Nickelberry complains, which was

attached to McKnight‘s response as an exhibit, is not a part of the appellate

record and thus we cannot consider it. See Alexander v. Lynda’s Boutique, 134

S.W.3d 845, 848–49 (Tex. 2004); In re D.D.J., 136 S.W.3d 305, 315 n.3 (Tex.

App.—Fort Worth 2004, no pet.). We grant Nickelberry‘s motion to strike but

deny his motion for sanctions.

                        Factual and Procedural History

      On June 11, 2010, McKnight filed a petition to modify the parent-child

relationship, seeking to be named the temporary conservator of her maternal

three-year-old granddaughter D.J.M., with the right to designate D.J.M.‘s primary

residence.   McKnight also asked the court to order Nickelberry to pay child

support, D.J.M.‘s health insurance premiums, and fifty percent of D.J.M.‘s

uninsured medical expenses while the case was pending. McKnight alleged that

the temporary orders were necessary because ―the child‘s present circumstances

would significantly impair the child‘s physical health or emotional development.‖

In a separate motion for temporary orders filed the same day, McKnight asked

the trial court to (1) appoint her and Nickelberry joint managing conservators of

D.J.M., and (2) appoint her D.J.M.‘s primary joint managing conservator.

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McKnight‘s motion stated that the temporary orders were necessary for the

―safety and welfare‖ of D.J.M. However, neither the petition to modify nor the

motion for temporary orders recited any facts to support the need for temporary

orders.

      On October 7, 2010, the trial court held a hearing on McKnight‘s motion for

temporary orders. During the hearing, McKnight‘s counsel initially stated that she

had evidence demonstrating some ―concerns‖ about Nickelberry‘s health, his

ability to care for D.J.M., and D.J.M.‘s alleged neurological condition. However,

McKnight‘s lawyer then acknowledged that she had ―no evidence that

[Nickelberry is] an unfit father.‖ Counsel for McKnight stated she was seeking

discovery and a social study to obtain that evidence. There was no evidence

whatsoever presented to the trial court on that date.

      The trial court granted the motion for a social study and advised the parties

that he would hear evidence on standing after the social study had been

completed.    The trial court also entered an oral temporary order granting

McKnight access and possession of D.J.M. on the first, third, and fifth Saturdays

from 9:00 a.m. until 2:00 p.m. on Sunday. At the conclusion of the hearing, the

trial court informed McKnight‘s counsel that it did not appear from her opening

statements that McKnight would meet the burden for obtaining grandparent

access in the long term but that the parties would reconvene at a later date for a

hearing on that issue.




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                             Authority and Analysis

      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. See

Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2010). A trial court abuses its

discretion if it grants temporary access to grandchildren when a grandparent

does not ―overcome the presumption that a parent acts in his or her child's best

interest by a preponderance of the evidence by proving that ‗denial . . . of access

to the child would significantly impair the child‘s physical health or emotional well-

being.‘‖ In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (quoting family code

section 153.433(2), current section 153.433(a)(2)‘s predecessor).

      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.     See Tex. Fam. Code Ann. § 153.433(a)(2);

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)).

      In this case, the trial court abused its discretion by granting a temporary

order for access to and possession of D.J.M. because McKnight failed to present

any evidence to meet the statutory burden required to prove that she is entitled to

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grandparent access rights. See Derzapf, 219 S.W.3d at 333; see also In re

Scheller, No. 09-1072, 2010 WL 4371436, at *3 (Tex. Nov. 5, 2010) (orig.

proceeding). We sustain Nickleberry‘s second issue. Based on this resolution,

we need not address his first issue. See Tex. R. App. P. 47.1.

                                    Conclusion

      Having determined that the trial court abused its discretion by granting

McKnight‘s access and visitation with D.J.M., we order the trial court to vacate its

October 7, 2010 oral temporary order granting McKnight access and visitation.

Only if the trial court fails to comply with this court‘s order will we issue the writ.

We grant Nickelberry‘s motion to strike and deny his motion for sanctions.



                                                     LEE GABRIEL
                                                     JUSTICE

PANEL: DAUPHINOT, WALKER, and GABRIEL, JJ.

DELIVERED: December 9, 2010




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