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In re A.E.M.

Court of Appeals of Texas, Fifth District, Dallas

November 13, 2019


          On Appeal from the 59th Judicial District Court Grayson County, Texas Trial Court Cause No. FA-18-0614

          Before Justices Myers, Osborne, and Nowell



         Father appeals from an order of the trial court granting the maternal grandparents of his children possession of and access to the children.[1] In a single issue, Father contends the trial court abused its discretion because Grandparents failed to rebut the presumption that Father was acting in the best interest of the children. See Tex. Fam. Code Ann. § 153.433(a). Deferring to the trial court's resolution of disputed facts and exercise of its broad discretion, we conclude the trial court did not abuse its discretion by rendering the order. We affirm.


         This background is based on the evidence admitted at trial.[2] Mother and Father lived in California when their first child was born in 2011. Grandparents lived near Mother and Father and helped care for the child. Father's parents also lived in California. In 2012, Grandparents moved to Texas, but frequently visited Mother, Father, and their children in California. In February 2016, Mother, Father, and the children moved to Texas. They stayed with Grandparents while looking for a house. In May, they bought a house nearby and moved in. Grandparents supported the family while Mother and Father saved to buy the house. The children continued to visit Grandparents multiple times a week, sometimes staying overnight. The children each had a room of their own at Grandparents' house along with clothes, toys, and medications. Grandparents transported the children to school and attended school functions. Grandmother testified the children were extremely close to her and they formed a unique bond. Grandmother felt she assumed the role of a parent to the children.

         Grandmother described both Mother and Father as alcoholics, but stated Father was in denial. Mother's friend, Melody, described Mother and Father's relationship as very tense and unhealthy. She testified that Mother and Father left the children with Grandparents when they went to a nudist colony. When Mother felt the situation at home was too tense, she would send the children to stay with Grandparents. Father's longtime friend, Brandon, who is also Grandmother's son-in-law, also testified that Father would frequently leave the children with Grandparents while he went to bars or nudist colonies. Father told Brandon that he argued with Mother often and he would snap at her when he drank. Father never said the incidents became physical.

         Mother and Father went to marriage counseling in 2018 to deal with Mother's alcoholism and abandonment issues and their marital problems. Father felt that Grandmother's lack of boundaries contributed to his marital problems with Mother. Their last session was about a month before Mother's death.

         On March 30, 2018, Mother and Father left the children with Grandparents while they went to a nudist colony. They returned sometime Easter morning, April 1, 2018. Grandmother texted Mother about bringing the children over because they were excited about coloring Easter eggs. Grandmother took the children to Mother's house about 11:30 a.m. That was the last time Grandmother saw Mother. That afternoon, around 3:30 p.m., Father found Mother in the bathtub. After an autopsy, the coroner determined that Mother had a blood alcohol level of 0.37 and her death was due to accidental drowning. At the time of Mother's death, the children were seven, five, and three years old. The children stayed with Grandparents from Sunday until Tuesday, when Father's parents came to town. During this time, the oldest child told Grandmother they were going to live in California with their other grandparents.

         On April 6, 2018, Grandparents filed this suit seeking sole managing conservatorship over the children. Grandparents obtained an ex parte temporary restraining order prohibiting Father from removing the children from Grayson County, ordering him to deliver the children to Grandparents, and denying him access to or possession of the children until further order of the court. The restraining order expired after a hearing on April 18, 2018. Soon thereafter, the children went to California to live with Father's parents while he prepared to sell the house in Texas. Grandmother later found out that Father had taken the oldest child out of school early. Father moved to California in July 2018.

         In May, Grandparents amended their petition and sought only possession of and access to the children pursuant to the grandparent access statute. Tex. Fam. Code Ann. § 153.433. This petition was supported by a new affidavit from Grandmother describing the close personal bond between Grandparents and the children and stating that denying Grandparents possession of or access to the children would significantly impair their physical health or emotional well-being.

         The case was tried to the court on July 20, 2018. The trial court signed an order granting grandparent access on October 2, 2018. The trial court found that the Grandparents overcame the presumption that Father acted in the best interest of the children and proved by a preponderance of the evidence that denial of possession of or access to the children would significantly impair the children's physical health or emotional well-being. The court established a possession order granting the Grandparents possession one weekend during the fall and the spring semester in the general vicinity of the children's residence, and a seven-day period during the summer at any location. In addition, the Grandparents were granted unrestricted phone, Skype, or FaceTime access with the children during the evening hours for a duration of forty-five minutes, and on birthdays and Christmas. The order also permits the Grandparents to send cards, letters, and gifts to the children.

         Standard of Review

         We review a trial court's decision to grant a grandparent's request for access or possession for an abuse of discretion. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig. proceeding) (per curiam). A trial court abuses its discretion if it grants access to grandchildren when the grandparent has not proven that denying the grandparent access to the child would significantly impair the child's physical health or emotional well-being. In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding) (per curiam) (quoting Derzapf, 219 S.W.3d at 333). This is so because "a trial court has no discretion in determining what the law is or applying the law ...

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