COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-184-CV
IN THE INTEREST OF J.P.C., A CHILD
------------
FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
OPINION
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court’s determination of grandparent access and possession is reviewed under an abuse of discretion standard, they do not cite, nor have we found, any authority specifically applying an abuse of discretion review to section 153.433 appeals.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:
....
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COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 2-07-184-CV
IN THE INTEREST OF J.P.C., A CHILD
------------
FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
OPINION
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
8 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?
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.
14 DELIVERED: July 17, 2008