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In re B.F.

Court of Appeals of Texas, Seventh District, Amarillo

March 29, 2017

IN THE INTEREST OF B.F. AND P.F., CHILDREN

         On Appeal from the 47th District Court Randall County, Texas Trial Court No. 66404-A, Honorable Dan L. Schaap, Presiding

          Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

          MEMORANDUM OPINION

          JAMES T. CAMPBELL JUSTICE

         Appellants Debbie and Keith Finch (the grandparents) are the paternal grandparents of B.F. and P.F. Appellee Kaysee Chandler f/k/a Kaysee Finch (the mother) is the children's biological mother. In July 2012 Dean Finch (the father), the children's biological father and the mother's then husband, was tragically killed. In 2013 the grandparents filed suit seeking court-ordered grandparental access to the children. After a bench trial in May 2016, the trial court rendered judgment denying the grandparents' request. They appeal. We will affirm the trial court's judgment.

         Background

         The father and the mother married in 2004. B.F. was born in 2009 and P.F., in 2010. At the time of the father's death the children were about three-and-a-half years and two years old, respectively.

         Before the father's death, the grandparents had regular contact with the children. Debbie Finch (the grandmother) daily cared for B.F. for fifteen months while the mother prepared for a teaching career. After P.F. was born the children began daycare. The grandparents provided transportation for the children to activities such as daycare and medical appointments. During the work-week, the grandparents usually had dinner with the mother and father and B.F. Following P.F.'s birth, the grandmother prepared dinner for the mother, father, and children. She fixed special foods according to the mother's recipes because B.F. had a food allergy. The father worked out of town and picked up the prepared meals on his way home. At times, the grandparents kept the children in their home to assist the mother and father. Often the grandparents saw the children on weekends as well. According to the grandmother's testimony, they engaged in such activities as fishing, going to an amusement park, or playing in the barn. The father's hobby was drag racing and sometimes during the summer they took the children to the races.

         Immediately after the father's death a conflict arose between the grandparents and the mother. The mother testified she believed the residence she and the father and children occupied had been a gift. She learned after the father's death that the house was encumbered by a deed of trust securing a note held by the grandmother. Testimony indicated there may also have been a dispute over the ownership of a vehicle. The grandparents apparently eventually initiated litigation against the mother over the property matters. It appears the children continued having visits with the grandparents from the time of the father's death until Christmas 2012. The mother testified she allowed "quite a few" visits during this time while the grandparents say in their brief the mother rarely allowed visits. According to the testimony of the grandmother and her sister, Rita Ward, after the family exchanged Christmas gifts that year the mother told the grandparents they would not see the children again. At trial the mother denied this version of events.

         The parties stipulated that the last intentional visit between the grandparents and the children occurred in January or February 2013. The grandparents presented testimony of three unplanned encounters with the children thereafter, at a wedding, a hardware store and a restaurant. The grandparents and Rita Ward attended a 2013 wedding and testified that the mother held the children back from seeing them. At the hardware store, the children were happy to see the grandmother and Ward but the mother was in a hurry and as they left, the grandmother, Ward, and one, or both, of the children cried. Within the year before trial, the grandmother, Ward, and their friend Shelly McCune encountered the mother, her new husband Colby Chandler, and the children at a pizza restaurant. According to testimony from the grandmother, Ward, and McCune, B.F. appeared "real nervous, just rubbing his hands, " the kids looked "like they [were] beat down or been told something, " B.F. was "rocking back and forth" and was "wringing his hands, " B.F. appeared "terrified" and the children appeared "emotionally distraught."

         The grandparents also presented the testimony of Christy Bradshaw Schmidt, a licensed professional counselor. Through her testimony, Schmidt generally informed the court of emotional and developmental problems that children who are denied grandparental access may face. She conceded peer-reviewed research in the area does not offer a great deal of assistance. By analogy she looked to research involving adoptions. Schmidt expressed a "concern" if the children had no connection with the paternal side of the family. But she acknowledged she had not "met, " "interviewed, " or "assessed" B.F. and P.F., and acknowledged she knew nothing about them except for the testimony she heard during trial. She was therefore unable to render an opinion about these children. On cross-examination she acknowledged that if the children were anxious she could not speak to the cause of their anxiety. When asked on redirect-examination if quarterly grandparental visits "could have a dramatic effect, " Schmidt responded, "I can't answer that question specific to these children."

         The grandparents called the mother and Chandler adversely in their case-in-chief. Chandler and the mother married in 2014 but he had known the children since July 2013. He is a teacher and coach. Chandler testified he had not observed any physical or emotional problems with the children. He saw no "acting-out" behavior or depression. Chandler believed the children had not recently asked about the grandparents. In her testimony, the mother agreed that the children had a "significant" relationship with the grandparents before the father's death. She testified that at the time of trial B.P. was in the first grade, making all A's, and having no health or behavior problems. P.F. was in kindergarten. He received good reports from school with no behavior problems. She denied either child seemed depressed and agreed both were happy. The mother agreed that being involved in two lawsuits with the grandparents "put a damper" on her interaction with them and, to some extent, her desire to allow their interaction with the children. The mother testified after the financial dispute arose after father's death she felt "personally attacked" by the grandparents and felt a need to protect the children from them.

         In her case-in-chief, the mother presented the testimony of Paula Adcock, the former director of the daycare center the children attended. Because of her position she was not directly in classrooms with the children. Adcock testified the children attended the center before and after the father's death. She believed the children handled their father's death, "better than [she] could ever imagine." She observed no reclusiveness or lashing out. And saw no inappropriate behavior by the children. In her opinion, the children "came back [from the father's death] just as normal kids as they were before." None of the center's caregivers having direct contact with the children ever brought a problem with the children to Adcock's attention.

         John Jackson administered an afterschool program the children attended once they began public kindergarten and school. He observed B.F. and P.F. on a daily basis. He described the children as "above average, " "respectful [and] mindful, " "really good." He agreed the children presented no problems. According to Jackson the children were actively involved in the program activities and listened to instructions. He found them "not overly emotional or overly physically ...


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