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In re S. S.

Court of Appeals of Texas, Third District, Austin

March 28, 2017

In re S. S.

         ORIGINAL PROCEEDING FROM BASTROP COUNTY

          Before Justices Puryear, Pemberton, and Goodwin

          MEMORANDUM OPINION

          David Puryear, Justice

         N.M.S. was born in December 2013 to Relator S.S. ("Mother") and A.S. ("Father"). Father died in a car accident in March 2016. Mother and Father were married and living together at the time of Father's death. There were conflicts between Father's family and Mother before Father's death, and those conflicts heightened after the accident to such a degree that Mother and Father's family opted to have separate funeral services. In August 2016, real party in interest and N.M.S.'s paternal grandmother S.B. ("Grandmother") filed a petition seeking to be named joint managing conservator of N.M.S. with the right to determine her primary residence or, alternatively, to be granted visitation. See Tex. Fam. Code §§ 102.004, 153.432.

         The trial court held a hearing in October 2016 and heard testimony from Mother, Grandmother, and other relatives. At the hearing, Mother moved to dismiss the petition, asserting that Grandmother's affidavit did not show that N.M.S. would be significantly impaired if Grandmother did not have access to her. See id. § 153.432(c). On February 2, 2017, the trial court signed temporary orders denying Mother's motion to dismiss and finding that Grandmother had overcome the presumption in favor of a parent's exclusive right to make decisions for her child "by providing a preponderance of the evidence that the denial of possession of or access by [Grandmother] to the child the subject of this suit would significantly impair the child's physical health or emotional well-being." The court ordered that Grandmother should have possession of N.M.S. from 11:00 a.m. until 7:00 p.m. the second and fourth Saturdays of each month.

         Mother then filed her petition for writ of mandamus and motion for emergency relief, asserting that the trial court abused its discretion: in refusing to dismiss Grandmother's suit on grounds that Grandmother's affidavit was insufficient; in granting Grandmother visitation rights under the temporary orders; and in refusing to dismiss Grandmother's suit for conservatorship for lack of standing. See Tex. R. App. P. 52. We granted the motion for emergency relief, staying the trial court's temporary order, and requested a response from Grandmother. See id. R. 52.4, 52.10. Having received Grandmother's response and carefully reviewed the record, we conditionally grant mandamus relief as explained below. See id. R. 52.8(c), (d).

         Standard of Review and Applicable Law

         A grandparent may seek managing conservatorship of her grandchild if "there is satisfactory proof" that the sought order "is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development." Tex. Fam. Code § 102.004(a)(1). A grandparent may also sue for possession or access without regard to whether conservatorship is an issue, attaching to her petition an affidavit containing, "along with supporting facts, the allegation that denial of possession of or access to the child . . . would significantly impair the child's physical health or emotional well-being." Id. § 153.432(b), (c). A trial court may order the grandparent to have possession of or access to the grandchild if the grandparent "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." Id. § 153.433(a)(2). "The court shall deny the relief sought and dismiss the suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized under Section 153.433." Id. § 153.432(c).

         A trial court has broad discretion in entering temporary orders related to access to a child. See In re Scheller, 325 S.W.3d 640, 642 (Tex. 2010) (per curiam). However, the court may not infringe on a parent's fundamental right to make child-rearing decisions simply because the court believes a better decision exists. Id. (quoting Troxel v. Granville, 530 U.S. 57, 72-73 (2000)). As long as a parent adequately cares for her child, "there will normally be no reason for the State to inject itself into the private realm of the family." Troxel, 530 U.S. at 68; see In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (per curiam). A trial court abuses its discretion if it issues temporary orders giving possession to a grandparent who has not overcome the statutory presumption that a parent acts in her child's best interest. In re Scheller, 325 S.W.3d at 646; In re Derzapf, 219 S.W.3d at 335 (quoting In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)). Such error is "irremediable" and warrants mandamus relief. In re Scheller, 325 S.W.3d at 646; In re Derzapf, 219 S.W.3d at 335; see In re Pacharzina, No. 03-12-00353-CV, 2012 WL 2161005, at *1 (Tex. App.-Austin June 14, 2012, orig. proceeding) (mem. op.).

         Our task, therefore, is to consider first whether the trial court abused its discretion in refusing to dismiss Grandmother's suit outright and, if not, whether sufficient evidence supports the trial court's findings that Grandmother should be granted visitation under temporary orders.

         Evidence Presented at Hearing

         There was ample evidence establishing the acrimonious relationship between Mother and Father's family, and the parties' briefing spends significant time discussing those conflicts.[1]However, in our inquiry, we must focus on whether Grandmother overcame the presumption in favor of Mother's parenting decisions and whether N.M.S. will suffer significant impairment of her well-being. The testimony relevant to those issues is as follows:

• Grandmother testified that she was present on the day N.M.S. was born, as well as holidays and birthdays. Grandmother testified that shortly after N.M.S. was born, Mother "went back to work for a little bit, " and that Grandmother took care of N.M.S. for some time before Mother and Father decided that Mother would stay home with N.M.S. Grandmother testified that Father was N.M.S.'s primary caretaker and that he worked as a night manager at HEB grocery stores. Grandmother said that Mother could have worked opposite shifts from Father but "didn't want to work." Grandmother testified that although Mother tried to stop Father from spending time with Grandmother, Grandmother babysat N.M.S. at the family's apartment and went with Father to pick N.M.S. up at daycare. Grandmother testified that some weeks she saw N.M.S. and Father two or three times a week and that she regularly saw N.M.S. at least once a week.
• Since Father's death, Grandmother had seen N.M.S. three times-in April, May, and September. Mother canceled a visit set for June, and through the summer did not respond to ...

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