Court of Appeals of Texas, Third District, Austin
In re S. S.
PROCEEDING FROM BASTROP COUNTY
Justices Puryear, Pemberton, and Goodwin
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 §§
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.
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).
of Review and Applicable Law
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. §
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.).
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
Presented at Hearing
was ample evidence establishing the acrimonious relationship
between Mother and Father's family, and the parties'
briefing spends significant time discussing those
conflicts.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