Court of Appeals of Texas, Fifth District, Dallas
Appeal from the 233rd District Court Tarrant County, Texas
Trial Court Cause No. 233-416160-07
Chief Justice Burns, Justice Whitehill, and Justice Schenck
D. BURNS, III CHIEF JUSTICE
grandparent-access suit, the trial court issued an order
granting paternal grandparents ("Grandparents")
possession and access to their minor grandchild, C.J. Mother
contends the trial court erred by granting Grandparents
possession and access, having already found that Mother and
Father's joint managing conservatorship was in C.J.'s
best interest. For the reasons expressed below, we affirm.
and Father were joint managing conservators of C.J., with
Father having primary custody. When Father and C.J.'s
older brother ("Brother") got into a physical
altercation, C.J. moved in with Grandparents. Father was
later convicted of his fourth driving while intoxicated
offense and sentenced to three years' imprisonment.
Father went to prison, Grandparents filed a petition to
modify the parent-child relationship ("SAPCR")
seeking joint managing conservatorship with Mother and
primary custody. In response, Mother filed a counter-petition
also seeking primary custody and a motion to dismiss for lack
of jurisdiction. The trial court granted Mother's motion
to dismiss and issued an order giving Mother primary custody.
eight months later, Grandparents filed another SAPCR, this
time seeking possession and access. After a bench trial, the
trial court issued an order granting Grandparents possession
and access "during the period that [Father] is
incarcerated." Mother appeals the trial court's
review a trial court's decision to grant a grandparent
possession and access for an abuse of discretion. In re
Chambless, 257 S.W.3d 698, 700 (Tex. 2008) (orig.
proceeding) (per curiam). A trial court abuses its discretion
if it acts arbitrarily, unreasonably, or without reference to
any guiding rules or legal principles. Worford v.
Stamper, 801 S.W.2d 108, 109 (Tex. 1990) (per curiam).
In family law cases, the abuse of discretion standard
overlaps with traditional sufficiency standards of review.
Boyd v. Boyd, 131 S.W.3d 605, 611 (Tex. App.-Fort
Worth, no pet.). As a result, legal and factual sufficiency
of the evidence are not independent grounds for asserting
error, but are relevant factors in determining whether the
trial court abused its discretion. Id. To determine
whether a trial court abused its discretion, we consider
whether some evidence exists to support the trial court's
decision. In re W.M., 172 S.W.3d 718, 729 (Tex.
App.-Fort Worth 2005, no pet.).
only issue, Mother contends the trial court erred by awarding
Grandparents possession and access to C.J. because (1) the
evidence was legally and factually insufficient; (2) the
order failed to include the required findings set out in
family code section 153.433(b); (3) an implied finding of no
significant impairment automatically precluded Grandparents
from a right to possession and access; and (4) Grandparents
lacked standing. Because standing implicates subject matter
jurisdiction, we address it first. In re H.S., 550
S.W.3d 151, 155 (Tex. 2018).
Due Process Clause of the Fourteenth Amendment protects the
fundamental right of parents to make decisions concerning the
care, custody, and control of their children."
Troxel v. Granville, 530 U.S. 57, 66 (2000). In
limited circumstances, the State may interfere with this
right by granting a grandparent possession and access to a
grandchild. Tex. Fam. Code §§ 153.432- .433.
petition a court for possession and access, a grandparent
must have standing. Standing is a component of subject matter
jurisdiction and a constitutional prerequisite to maintain
suit. Tex. Ass'n of Bus. v. Tex. Air Control
Bd., 852 S.W.2d 440, 444 (Tex. 1993). The family code
identifies persons who have standing to file a SAPCR, and the
party seeking relief must plead and establish standing within
the parameters of the code's language. In re
E.C., No. 02-13-00413-CV, 2014 WL 3891641, at *2 (Tex.
App.-Fort Worth Aug. 7, 2014, no pet.) (mem. op.). As a
question of law, we review standing de novo. Id. at
contends that family code sections 102.003 and 102.004 govern
standing in this appeal, but those sections govern standing
to seek conservatorship of a child, not possession and
access. Tex. Fam. Code §§ 102.003-.004.
"Possession of or access to a child by a grandparent is
governed by the standards established by Chapter 153."
Tex. Fam. Code § 102.004(c).
153.432 confers standing on a "biological or adoptive
grandparent" to file a suit requesting possession or
access to a grandchild. Tex. Fam. Code § 153.432(a).
Here, the record reflects that Grandparents are C.J.'s
paternal grandparents. Moreover, in her opening brief to this
Court, Mother concedes Grandparents' standing under this
section. Nonetheless, Mother argues the trial court's
order cannot be upheld because Grandparents failed to allege
that Mother or Father met any of section 153.433(b)'s
requirements. That section, however, does not govern
standing; it identifies the conditions under which possession
and access will be granted. In re Clay, No.
02-18-00404-CV, 2019 WL 545722, at *6 (Tex. App.-Fort Worth
Feb. 12, 2019, orig. proceeding). Although a successful suit
requesting possession and access may require a grandparent to
satisfy section 153.433, "whether the grandparent
ultimately will succeed is a different question than whether
the grandparent has the right to simply bring suit."
In re Smith, 260 S.W.3d 568, 573 (Tex. App.-Houston
[14th Dist.] 2008, orig. proceeding). Because the record
conclusively establishes that Grandparents are C.J's
biological grandparents, we conclude they have standing to
seek possession and access.
of the Evidence
Mother challenges the legal and factual sufficiency of the
evidence supporting the trial court's award of possession
and access to Grandparents. Section 153.433(a)(2) requires a
grandparent seeking possession and access to "overcome
the presumption that a parent acts in the [child's best
interest] 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." Tex. Fam. Code §
153.433(a)(2). A trial court abuses its discretion when it
grants possession and access to a grandparent who has not met
this standard. In re Derzapf, 219 S.W.3d 327, 333
(Tex. 2007) (orig. proceeding) (per curiam).
the record reflects that C.J. lived with Father at
Father's home. Because they lived only a few blocks away
from Grandparents, Grandparents saw C.J. almost every day.
They helped C.J. with his homework, took him to
extracurricular events, and made several overnight fishing
trips. In an affidavit to the trial court, Grandparents
stated their bond with C.J. "ha[d] only grown ...