GuideOne Lloyds Insurance Company v. First Baptist Church of Bedford ( 2008 )


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  •                        COURT OF APPEALS
    SECOND DISTRICT OF TEXAS
    FORT WORTH
    NO. 2-07-184-CV
    IN THE INTEREST OF J.P.C., A CHILD
    ------------
    FROM THE 324TH DISTRICT COURT OF TARRANT COUNTY
    ------------
    OPINION
    ------------
    I. Introduction
    In one issue, Appellant Dayna Kay C. argues that the trial court abused
    its discretion when it granted Appellees Richard and Maurine C.’s petition for
    grandparent access. We reverse and render.
    II. Factual and Procedural History
    Dayna and Robert C. were married May 20, 1996. They had one child,
    J.P.C., who was born March 29, 1999. Dayna filed for divorce from Robert in
    May 2002. After the divorce was filed, Robert went to live with his parents,
    Richard and Maurine C. (“the grandparents”). Subsequently, the trial court
    entered temporary orders awarding Dayna primary managing conservatorship
    and awarding Robert standard possession subject to the grandparents’
    supervision.
    In March or April 2003, the divorce proceedings were halted when Robert
    was diagnosed with a terminal disease. Robert died on May 9, 2004. J.P.C.
    was five years old at the time. On May 18, 2004, the grandparents filed an
    original petition for grandparent access. On January 31, 2007, the trial court
    issued a rendition letter granting the grandparents possession of and access to
    J.P.C.    On May 18, 2007, the trial court signed its order granting the
    grandparents possession and access. J.P.C. was eight years old at that time.
    Dayna brought this appeal.
    III. Standard of Review
    Before we determine the merits of Dayna’s appeal, we must first decide
    what standard of review applies to a trial court’s determination of grandparent
    access and possession under section 153.433 of the Texas Family Code. 1 T EX.
    1
    … While both parties assert that the trial court’s determination of
    grandparent access and possession is reviewed under an abuse of discretion
    standard, they do not cite, nor have we found, any authority specifically
    applying an abuse of discretion review to section 153.433 appeals. Therefore,
    we address the issue as a threshold matter here.
    2
    F AM. C ODE A NN. § 153.433 (Vernon Supp. 2008). Although section 153.433
    does not specifically include a best interest analysis, section 153.002 dictates
    that the best interest of the child shall always be the primary consideration of
    the court in determining the issues of conservatorship and possession of and
    access to the child. 
    Id. The determination
    of a minor’s best interest requires
    the court to balance the possible benefits and detriments to the minor in
    granting grandparent access and possession.2             This type of balancing
    necessarily involves the exercise of judicial discretion and should be reviewed
    on that basis. See In re Doe 
    2, 19 S.W.3d at 281
    . Moreover, this type of
    review is used in many other family law contexts; for instance, in child support,
    adoption, and custody cases the trial court’s best interest finding is reviewed
    for an abuse of discretion.3 
    Id. Because of
    the discretionary nature of the trial
    court’s determination and the similarity to review of best interest findings in
    other family law contexts, we hold that abuse of discretion is the proper
    2
    … Cf. In re Doe 2, 
    19 S.W.3d 278
    , 281 (Tex. 2000) (observing that, in
    evaluating a minor’s request for waiver of parental notification to obtain an
    abortion, the trial court’s determination of the minor’s best interests require that
    the trial court balance the possible benefits and detriments to the minor in
    notifying her parents).
    3
    … See, e.g., Worford v. Stamper, 
    801 S.W.2d 108
    , 109 (Tex. 1990);
    In re W.E.R., 
    669 S.W.2d 716
    , 716 (Tex. 1984); Gillespie v. Gillespie, 
    644 S.W.2d 449
    , 451 (Tex. 1982).
    3
    standard of review for a trial court’s determination regarding grandparent
    access and possession.
    To determine whether a trial court abused its discretion, we must decide
    whether the trial court acted without reference to any guiding rules or
    principles; in other words, we must decide whether the act was arbitrary or
    unreasonable. Downer v. Aquamarine Operators, Inc., 
    701 S.W.2d 238
    , 241-
    42 (Tex. 1985), cert. denied, 
    476 U.S. 1159
    (1986). Merely because a trial
    court may decide a matter within its discretion in a different manner than an
    appellate court would in a similar circumstance does not demonstrate that an
    abuse of discretion has occurred. 
    Id. An abuse
    of discretion does not occur
    where the trial court bases its decisions on conflicting evidence. In re Barber,
    
    982 S.W.2d 364
    , 366 (Tex. 1998) (orig. proceeding). Furthermore, an abuse
    of discretion does not occur as long as some evidence of substantive and
    probative character exists to support the trial court’s decision. Butnaru v. Ford
    Motor Co., 
    84 S.W.3d 198
    , 211 (Tex. 2002). A trial court has no discretion
    in determining what the law is or applying the law to the facts, even when the
    law is unsettled. In re Prudential Ins. Co. of Am., 
    148 S.W.3d 124
    , 135 (Tex.
    2004).
    In Dayna’s sole issue on appeal, she argues that the trial court abused its
    discretion when it granted the grandparents access to J.P.C. because the
    4
    evidence was both legally and factually insufficient to support that decision.
    In appropriate cases, legal and factual sufficiency are relevant factors in
    assessing whether the trial court abused its discretion. Beaumont Bank, N.A.
    v. Buller, 
    806 S.W.2d 223
    , 226 (Tex. 1991); Tex. Dep’t of Health v. Buckner,
    
    950 S.W.2d 216
    , 218 (Tex. App.—Fort Worth 1997, no writ). Furthermore,
    when an abuse of discretion standard of review applies to a trial court’s ruling,
    findings of fact and conclusions of law aid us in reviewing the propriety of the
    ruling by providing us with an explanation for the ruling. Chrysler Corp. v.
    Blackmon, 
    841 S.W.2d 844
    , 852 (Tex. 1992); Samuelson v. United Healthcare
    of Tex., Inc., 
    79 S.W.3d 706
    , 710 (Tex. App.—Fort Worth 2002, no pet.).
    5
    IV. Grandparents Access
    A. Applicable Law
    Section 153.433 of the Texas Family Code sets forth the requirements
    that must be met before a court may order grandparent access to a grandchild. 4
    See T EX. F AM. C ODE A NN. § 153.433. The statute presumes that a parent acts
    in the child’s best interest, and it permits a grandparent to obtain court-ordered
    4
    … The court shall order reasonable possession of or access to a
    grandchild by a grandparent if:
    ....
    (2) the grandparent requesting possession of or access to the child
    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; and
    (3) the grandparent requesting possession of or access to the child
    is a parent of a parent of the child and that parent of the child:
    (A) has been incarcerated in jail or prison during the
    three-month period preceding the filing of the petition;
    (B) has been found by a court to be incompetent;
    (C) is dead; or
    (D) does not have actual or court-ordered possession of or
    access to the child.
    T EX. F AM. C ODE A NN. § 153.433(2)–(3).
    6
    access only upon a showing that denial of access will “significantly impair the
    child’s physical health or emotional well-being.” In re Derzapf, 
    219 S.W.3d 327
    , 333 (Tex. 2007) (orig. proceeding).
    The Legislature has set a high threshold for a grandparent to overcome
    the presumption that a parent acts in his or her child’s best interest: the
    grandparent must prove that denial of access would “significantly impair” the
    child’s physical health or emotional well-being.        T EX. F AM. C ODE A NN .
    § 153.433(2) (emphasis added); see 
    Derzapf, 219 S.W.3d at 334
    . This high
    threshold exists so that a court will refrain from interfering with child-rearing
    decisions made by a parent simply because the court believes that a “better
    decision” could have been made. See 
    Derzapf, 219 S.W.3d at 334
    (quoting
    Troxel v. Granville, 
    530 U.S. 57
    , 73, 
    120 S. Ct. 2054
    , 2064 (2000)).
    B. Overcoming the Statutory Presumption
    We must now determine whether the grandparents in this case presented
    sufficient evidence to overcome the presumption enunciated in section
    153.433.    To succeed on their claim, the grandparents had to prove by a
    preponderance of the evidence that the denial of access would “significantly
    impair” J.P.C.’s physical health or emotional well-being. See 
    Derzapf, 219 S.W.3d at 334
    .
    7
    In an effort to demonstrate that the denial of access would significantly
    impair J.P.C., the grandparents urge us to consider their significant and lengthy
    past contact with J.P.C. that occurred in their home while they cared for Robert
    during the divorce proceedings. They argue that since their access to J.P.C.
    had been limited and restricted after Robert’s death, J.P.C.’s behavior was
    “different” than it had been when they were able to see each other
    regularly—that J.P.C. was “longing.” Maurine testified that when they were
    able to have a supervised visit at the park “[J.P.C.] would take me off and—just
    take me by the hand and want to go off and, you know, sit under the slide and
    just sit there and just be there. She just wanted to be with me.” Richard
    testified that Dayna’s supervision of their visits with J.P.C. “caused [J.P.C.]
    discomfort” and that J.P.C. acted differently, appearing inhibited, pensive, and
    superficial when Dayna was present.
    The grandparents also argue that a clear visitation schedule was good for
    J.P.C. because it was not in J.P.C.’s best interest to have the constant pulling
    back and forth between themselves and Dayna as they tried to organize
    visitations. They express their fear that without a court order it would become
    almost impossible to establish regular visits, and as a result, J.P.C.’s memory
    of her father would dwindle and her father’s side of the family would not be
    able to be a part of her life. They argue that their fear was evidenced by the
    8
    fact that J.P.C. threw pictures of her father into the trash. The grandparents
    also point to a letter that Dayna wrote to J.P.C.’s kindergarten teacher in which
    Dayna described Robert’s illness and his “abnormal behaviors and verbal
    abusiveness” as an example of how Dayna was, according to the grandparents,
    “making every effort to control [J.P.C.’s] memor[y] of her father.”
    We have closely reviewed the record in this case for evidence that denial
    of access would significantly impair J.P.C.’s physical health or emotional well-
    being, and we are unpersuaded by the grandparents’ arguments. Our review
    of the record shows that the grandparents have not presented any probative
    evidence to show that J.P.C.’s physical or emotional health would be
    significantly impaired by the denial of access. See 
    Butnaru, 84 S.W.3d at 211
    .
    Instead, the grandparents have offered only bare, unsupported allegations that
    the denial of access would significantly impair J.P.C.
    For instance, although they argue that limited and restricted access to
    J.P.C. was, in their opinion, causing her distress and causing her to act
    “different, inhibited, pensive, and superficial,” the only evidence they offer to
    show that J.P.C. was distressed was Maurine’s testimony regarding her
    interaction with J.P.C. at the park. However, they do not explain how J.P.C.’s
    alleged “discomfort” amounts to significant impairment, nor do they offer any
    evidence connecting J.P.C.’s “different, inhibited, pensive, and superficial”
    9
    behavior to the visitation schedule or Dayna’s supervision of their visits.
    Instead, the “evidence” they raise is merely their own characterization of
    J.P.C.’s behavior, and their conclusion that such behavior was the result of the
    limited and restricted access.
    Further, while the grandparents argue that without regular, court-ordered
    visits, J.P.C. would be significantly impaired because her memory of her father
    would dwindle, the grandparents have not presented any probative evidence to
    support their belief. For instance, although the grandparents rely on the fact
    that J.P.C. threw pictures of her father into the trash as evidence that J.P.C.’s
    memory of her father was dwindling, the record clearly shows that this event
    occurred during Dayna and Robert’s divorce proceedings, while J.P.C. was
    regularly visiting their house during Robert’s periods of visitation, and not
    subsequent to Robert’s death. Thus, the grandparents’ reliance on this piece
    of evidence is misplaced.      Similarly, the grandparents’ characterization of
    Dayna’s letter to J.P.C.’s kindergarten teacher as evidence that Dayna was
    attempting to “control [J.P.C.’s] memor[y] of her father” is also unfounded.
    Rather, the record shows that the letter was Dayna’s attempt to ease J.P.C.’s
    transition after the loss of her father by informing her teacher of the difficulties
    that J.P.C. had faced and issues that may arise as a result. Indeed, J.P.C.’s
    teacher testified that the letter Dayna gave her “was extremely helpful” in
    10
    letting her know what she might be dealing with in regards to J.P.C. Moreover,
    the grandparents have not presented any evidence showing that J.P.C. has
    been unable to remember her father. In contrast, the record shows that after
    Robert’s death, J.P.C. had pictures of him in her room and that “she [would]
    have them up for a while. . . and then she [would] take them down.” 5
    Furthermore, the grandparents’ position that the denial of court-ordered
    visitation would significantly impair J.P.C. is based completely on their
    5
    … The testimony regarding J.P.C.’s interaction with her father’s pictures
    after his death was confusing, at best.
    Q: Can you tell the Court whether or not there are any photos of
    your deceased husband in your home?
    A: Yes, there are.
    Q: Are there any in your daughter’s room?
    A: Yes, there are.
    Q: And what has she done with the photos in her room of her dad?
    A: She would do different things at different times. During the
    divorce proceedings. . . . The photographs that had been in my
    room, she had put them away. Fortunately, fished some of them
    out of the trash can and take them and hide those.
    Q: Since [Robert’s] death, has there been any activity of your
    daughter with her dad’s pictures?
    A: Yes. There’s still activity to where she’ll have them up for a
    while. Then she’ll take them down.
    11
    expressed feeling that it was not in J.P.C.’s best interest to have the constant
    pulling back and forth between themselves and Dayna, and their fear that
    without the court order it would become impossible to establish regular visits.
    However, there is no evidence that the schedule that existed before litigation,
    although not as frequent as the grandparents would have liked, was harming
    J.P.C.; again, this is just Maurine and Richard’s opinion that regular,
    unsupervised visits would be better. With no other evidence to demonstrate
    how J.P.C. would be significantly impaired, these arguments, in and of
    themselves, are only reflections of the grandparents’ fears and speculations and
    do not support the trial court’s finding that the grandparents overcame the
    statutory presumption.
    Significantly, the only testimony presented by the grandparents on the
    issue of whether J.P.C. was significantly impaired by the denial of access was
    their own testimony and the testimony of Karen, J.P.C.’s paternal aunt, who
    testified that if the grandparents were not given access, J.P.C. would have a
    lot of questions as to why. But “questions” are not evidence of significant
    impairment.    Once again, other than their own opinions and that of an
    interested, nonexpert witness, the grandparents produced no evidence that
    J.P.C. would be significantly impaired in the absence of court-ordered access.
    In contrast, Dayna presented evidence demonstrating that J.P.C. was not
    12
    significantly impaired by the denial of access. While the grandparents allege
    that the limited and restricted visits were causing J.P.C. distress, Dayna points
    out that both the grandfather and the paternal aunt actually testified that J.P.C.
    was a happy little girl. Similarly, J.P.C.’s kindergarten teacher testified that
    J.P.C. was a loving, sweet child who was very social and interactive with
    others. Moreover, Dayna points out that although the grandparents claim that
    the denial of visitation would significantly impair J.P.C., they actually made no
    effort to contact Dayna to set up a visitation schedule after Robert’s death;
    instead, they immediately filed a petition for grandparent access.         Lastly,
    Dayna argues that the imposition of visitation would serve only to make J.P.C.
    live under the constraint of a court order, an action that was unnecessary
    because Dayna was already offering the grandparents supervised visits with
    J.P.C.
    After reviewing the record, we determine that the evidence produced by
    the grandparents, largely consisting of their own feelings and speculations, did
    not rise to the level of proving by a preponderance of the evidence that denial
    of access would significantly impair the physical health or emotional well-being
    of J.P.C. The mere opinion of the grandparents themselves and an interested,
    nonexpert witness that the grandparents should be granted access does not
    overcome the statutory presumption, nor does it support the court’s
    13
    interference with Dayna’s parental rights by awarding the grandparents court-
    ordered access to J.P.C. Thus, the grandparents have failed to show that the
    denial of access would significantly impair J.P.C.’s physical or emotional well-
    being. Because a trial court has no discretion in applying the law to the facts,
    the trial court’s determination that the statutory presumption was overcome
    was an abuse of discretion. See In re Prudential Ins. Co. of 
    Am., 148 S.W.3d at 135
    .
    V. Conclusion
    Having determined that the grandparents failed to overcome the statutory
    presumption by proving by a preponderance of the evidence that the denial of
    access would significantly impair J.P.C.’s physical health or emotional well-
    being, we hold that the trial court abused its discretion in awarding the
    grandparents access to J.P.C. Accordingly, we reverse the trial court’s order
    and render judgment denying the grandparents’ petition for access.
    BOB MCCOY
    JUSTICE
    PANEL B:    LIVINGSTON, WALKER, and MCCOY, JJ.
    WALKER, J. concurs without opinion.
    14
    DELIVERED: July 17, 2008
    15