Parental presumption given effect after parent's murder; trial court's custody order in favor of grandparents reversed

FACTUAL BACKGROUND AND CASE HISTORY
At the time of their mother's murder, J.C. was four years old and S.C. was eight. A temporary order was entered in March 2007, appointing Rubio and the [Maternal Grandparents] as temporary joint managing conservators of the children. The order was modified in May 2008, sometime after [Husband]'s release from police custody. Under the terms of the modified order, [Husband] was to have possession of J.C. two nights each week, with the [Maternal Grandparents] having possession at all other times. The order further stated that the [Maternal Grandparents] were to have possession of S.C. only upon S.C.'s request. In May 2009, the order was modified a second time to afford [Husband] extended periods of possession with his daughter.

A hearing on the merits was conducted in December 2009. By that time, J.C. had been living with the [Maternal Grandparents] for more than two and a half years. The [Maternal Grandparents] had not seen S.C., however, since early 2007, just a few months after his mother's death. The children's psychologist, Carol Stevens, recommended that S.C. should not be ordered to stay with the [Maternal Grandparents]. According to Stevens, S.C. maintained a close relationship with his father and he feared losing [Husband] to the [Maternal Grandparents]. S.C. was particularly afraid that Mr. Angel might kill [Husband], a threat he apparently made in the presence of S.C. on the first anniversary of Socorro's death.

During the hearing, Stevens also testified that J.C. should remain in the custody of her grandparents. Stevens found that J.C. had developed a separation anxiety disorder following her mother's death, and based on her professional observations, the target of J.C.'s disorder was the potential loss of her maternal grandmother. Stevens feared that uprooting J.C. from Mrs. Angel would not be in the child's best interest. Indeed, if J.C. were to be taken away from the [Maternal Grandparents], Stevens testified that "the child will suffer, her emotional health will suffer."

Although [Husband] repeatedly denied any involvement in his wife's murder, [Mother's] family suggested that she still may have suffered at the hands of his abuse. For example, Mrs. Angel testified she once saw bruises on Socorro. Catalina Morgan, Socorro's cousin, also claimed that she observed scratches on Socorro's neck several years before her death. Neither witness could testify as to the exact cause of the injuries, though both claimed that Socorro was afraid of her husband. In fact, Socorro specifically told Morgan that she was afraid of [Husband] hitting her. In demonstrating this fear, Morgan recounted one discussion where Socorro offered to buy an expensive necklace for Morgan's daughter. Socorro had fought with her husband over money in the past, and Socorro allegedly warned Morgan, "It's only one thing that I don't want you to say anything to nobody because I don't want him to know because we will get into a big argue [sic] again and he might hit me this time and I might left [sic]."

The trial judge conducted an in camera, off-the-record interview with J.C. In open court, the trial judge stated that his decision was based on the witness testimony and his observation of the child during that session in chambers. The trial judge explicitly cited Stevens's recommendation in finding that uprooting J.C. from the [Maternal Grandparents] would cause "some emotional danger to the child" or an "immediate threat of some sort of damage."

[Husband] timely filed a motion for new trial and a request for findings of fact and conclusions of law. The motion for new trial was overruled by operation of law, and findings of fact and conclusions of law were never entered. This appeal followed.

CONCLUSION

As nonparents seeking managing conservatorship, the [Maternal Grandparents] were required to establish by a preponderance of the evidence that the parental presumption was overcome. The [Maternal Grandparents] contend that the presumption was rebutted by implied findings that the appointment of [Husband] as managing conservator would significantly impair the emotional development of J.C., and that [Husband] had a history or pattern of physical abuse directed against his wife. We have reviewed the evidence in the light most favorable to those findings, which [Husband] has now challenged on appeal. After indulging every reasonable inference in the record that would support the findings, crediting favorable evidence if a reasonable fact-finder could, and disregarding contrary evidence unless a reasonable fact-finder could not, we conclude that the record is without any evidence sufficient to overcome the parental presumption. Therefore, the trial court abused its discretion in naming the [Maternal Grandparents] joint managing conservators with the right to determine the primary residence of J.C.

We reverse the judgment of the trial court and remand for that court to render judgment naming [Husband], as the natural parent, sole managing conservator of his daughter. The provisions of the trial court's judgment regarding S.C. should remain the same. The trial court may find it necessary to conduct further hearings on matters relating to the terms and conditions for possession of J.C. See Lewelling, 796 S.W.2d at 168-69.

Click below to read the entire appellate opinion by Houston Court of Appeals Justice Tracy Christopher

Fit surviving mother precludes paternal grandparents' access suit after children's father's death

In an appeal from a successful grandparent suit brought by the children's surviving mother, the Austin Court of Appeals recently held that the parents of the children's father who had died (i.e., the paternal grandparents) had not overcome the parental presumption, and that the trial court erred in granting them visitation rights. Because no evidence showed that the children's mother was not a fit parent, the court, in an opinion written by its Chief Justice, determined that the mother had the right to decide the nature and amount of contact the children would have with the grandparents. The opinion explains the high standard that applies when grandparents seek the court's help in their efforts to maintain a relationship with their grandchildren over their parents' objection.


FROM THE OPINION:

In her remaining issues Rebecca [Mother] argues that the trial court erred in granting Larry and Maggie [paternal grandparents] possession of and access to the children.

Possession of or access to a child by a grandparent is governed by the standards set forth in chapter 153 of the Texas Family Code. Tex. Fam. Code Ann. § 102.004(c) (West 2008); In re Chambless, 257 S.W.3d 698, 700 (Tex. 2008). The specific statute applicable to this appeal is section 153.433. The legislature amended section 153.433 in 2005 in an effort to bring the Texas statute into compliance with the U.S. Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000) (plurality opinion). See In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007).

The Supreme Court held in Troxel that parents enjoy a fundamental right to make decisions concerning "the care, custody, and control of their children," and that "so long as a parent adequately cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into the private realm of the family." 530 U.S. at 65, 68.

In light of Troxel, family code section 153.433 now requires that a grandparent seeking court-ordered possession or access overcome the presumption that a parent acts in his or her child's best interest, meaning that the grandparent must prove by a preponderance of the evidence that denial of access to the child would significantly impair the child's physical health or emotional well-being. Tex. Fam. Code Ann. § 153.433(2); Derzapf, 219 S.W.3d at 333.

"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." J.P.C., 261 S.W.3d at 337.

Under the statute, a trial court must presume that a fit parent acts in his or her child's best interest, and the court abuses its discretion if it grants access to a grandparent who has not met this standard. Derzapf, 219 S.W.3d at 333.

The Texas Supreme Court has interpreted Troxel to mean that when there is no evidence that (1) the child's parent is unfit; (2) the child's health or emotional well-being would suffer if the court defers to her decisions; and (3) the parent intended to exclude the grandparent's access completely, a trial court abuses its discretion by granting grandparent access against the parent's wishes. See In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (per curiam).

Rebecca argues on appeal that the Mays-Hooper analysis applies in this case, that Larry and Maggie failed to overcome the presumption that she acted in the children's best interest, and that the trial court's order granting Larry and Maggie possession and access was therefore an abuse of discretion. We agree. As discussed in connection with Rebecca's first two issues, the record establishes that Rebecca is a fit parent, as the trial court expressly found, and that she did not intend to exclude Larry and Maggie's access to the children completely.

Moreover, there is no support for the claim that the children's physical health or emotional well-being would be significantly impaired if the court deferred to Rebecca's decision to impose certain limitations on Larry and Maggie's visitation. There is simply no evidence that the visitation and phone access Larry and Maggie had prior to filing their petition--while less frequent and more restricted than they would have liked--was harming the children. Cf. J.P.C., 261 S.W.3d at 339 (grandparents' opinion that regular, unsupervised visits would be better and that it would be impossible to establish regular visits without court order "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").

As a fit parent, Rebecca is entitled to ask that Larry and Maggie comply with her wishes regarding medication, appropriate toys and movies, and conversation about the children's father that she deems acceptable.

The mere opinion of the grandparents themselves as interested, nonexpert witnesses that they should be granted access does not overcome the statutory presumption imposed by section 153.433, nor does it support the court's interference with a parent's rights. Id. at 340. We therefore hold that the trial court abused its discretion in ordering that Larry and Maggie be awarded possession and access. We sustain Rebecca's remaining issues.

CONCLUSION

Having determined that Larry and Maggie lacked standing to file an original petition for conservatorship, we reverse the portion of the trial court's order naming them possessory conservators of the children and dismiss their petition for conservatorship for lack of jurisdiction. Further, because the trial court abused its discretion in awarding Larry and Maggie possession of and access to the children, we reverse the remainder of the trial court's order and render judgment denying their petition for possession and access.

J. Woodfin Jones, Chief Justice

SOURCE: Third Court of Appeals' decision in Cause No. 03-09-00189-CV (10/1/09)