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In re C.J.

Court of Appeals of Texas, Fifth District, Dallas

December 27, 2019

IN THE INTEREST OF C.J., A CHILD

          On Appeal from the 233rd District Court Tarrant County, Texas [1] Trial Court Cause No. 233-416160-07

          Before Chief Justice Burns, Justice Whitehill, and Justice Schenck

          MEMORANDUM OPINION

          ROBERT D. BURNS, III CHIEF JUSTICE

         In this 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.

         BACKGROUND

         Mother 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.

          After 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.

         About 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 order.

         STANDARD OF REVIEW

         We 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.).

         DISCUSSION

         In her 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).

         Standing[2]

         "[T]he 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.

         To 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 *1.

         Mother 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).

         Section 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.

         Sufficiency of the Evidence

         Next, 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).

         Here, 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 ...


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