in the Interest of K.R.H., a Child ( 2014 )

Fourth Court of Appeals
San Antonio, Texas
MEMORANDUM OPINION
No. 04-13-00260-CV
IN THE INTEREST OF K.R.H., a Child
From the 166th Judicial District Court, Bexar County, Texas
Trial Court No. 2011-CI-03379
Honorable Antonia Arteaga, Judge Presiding
Opinion by: Luz Elena D. Chapa, Justice
Sitting: Sandee Bryan Marion, Justice
Rebeca C. Martinez, Justice
Luz Elena D. Chapa, Justice
Delivered and Filed: March 26, 2014
AFFIRMED
The maternal grandparents of K.R.H. appeal the trial court’s judgment denying their
petition for possession of or access to K.R.H. Concluding the trial court did not abuse its
discretion, we affirm.
Mr. and Mrs. R. initiated this action after their daughter, K.R.H.’s mother, died. Under
Texas law, when one parent of a child is deceased, and the other parent has not had his parental
rights terminated, a trial court “may order reasonable possession of or access to” the child by her
biological grandparent (the parent of the deceased parent) if
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[.]
04-13-00260-CV
TEX. FAM. CODE ANN. § 153.433(a)(2) (West Supp. 2013). Parents have a fundamental right to
make child rearing decisions. Troxel v. Granville, 530 U.S. 57, 72–73 (2000) (plurality op.).
Therefore, “so long as a parent adequately cares for his or her children (i.e., is fit), there will
normally be no reason for the State to inject itself into the private realm of the family.” In re
Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig. proceeding) (per curiam). A fit parent is
presumed to act in his child’s best interest and is ordinarily entitled to make all decisions about
possession of and access to the child, free from compulsion by the State. See In re Scheller, 325
S.W.3d 640, 643 (Tex. 2010) (orig. proceeding). A trial court has discretion to grant possession
to a grandparent over the objections of a fit parent only if the grandparent meets a “high threshold”
and overcomes that presumption. Derzapf, 219 S.W.3d at 334. The trial court may not order
grandparent access in the absence of proof by a preponderance of the evidence that the child’s
parent is unfit, the child’s health or emotional well-being will be significantly impaired if the court
defers to the parent’s decisions, or that the parent intends to exclude the grandparent’s access
completely and such complete denial of access will significantly harm the child. See In re Mays–
Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (orig. proceeding) (per curiam).
At the trial of this case, Mr. and Mrs. R. testified they were K.R.H.’s primary caretakers
for many years. K.R.H. and her mother, appellants’ daughter Olivia, lived in their home for the
first six months of K.R.H.’s life. When K.R.H. started daycare at age two, appellants usually took
her and picked her up, and she often stayed overnight in their home. Although K.R.H.’s parents,
Olivia and Jason, visited K.R.H. occasionally and took her with them occasionally, K.R.H. would
stay at appellants’ home for as much as a week at a time. When K.R.H. was old enough for
kindergarten, appellants enrolled her in the school in their neighborhood.
K.R.H. was seven when her mother died in April 2009. The parties testified it was
generally agreed it would be best for K.R.H. to stay in appellants’ home at that time. However,
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the evidence about the reasons why and how much contact Jason had with his daughter thereafter
was disputed. Mr. and Mrs. R. testified Jason was unemployed at the time and was not ready to
care for K.R.H. They testified Jason would only occasionally come to visit and that sometimes
appellants had to call him and ask him to visit K.R.H. According to appellants, this continued for
a year and a half, until December 2010.
Jason and his mother testified that the reason Jason was unable to take K.R.H. with him
when his wife died was that he worked evening shifts and often did not leave work until 2:00 or
3:00 in the morning. Jason testified that he saw K.R.H. almost every day, but that it made sense
to leave her to sleep at her grandparents’ house. When Olivia died, Jason and his parents took a
pastor to appellants’ home to meet with K.R.H. Thereafter, Jason started taking K.R.H. to the
Children’s Bereavement Center. Eventually, staff at the Center recommended K.R.H. receive
individual therapy. Jason began taking K.R.H. to therapy sessions with Ramona Leonards in
August 2010.
Appellants testified that in December 2010, when K.R.H. was eight, Jason picked her up
for what was to be a week-long visit. He later called appellants and told them he was going to
keep K.R.H. with him, that he wanted to be her father and wanted her in his home. Mr. R. testified
that at the time he thought that was a good idea. However, Jason started limiting the time
appellants could spend with K.R.H. Plans would be made, but then Jason would cancel them.
Appellants testified Jason allowed them to see K.R.H., but would not allow her to spend the night
at their house and did not want them to visit with her alone.
In 2011, appellants filed this action, asking the court to name them K.R.H.’s joint managing
conservators and to name Jason a possessory conservator. Mrs. R. testified they filed the suit
because Jason seemed not to be able to keep a job and they did not think he was able to provide
for K.R.H. They testified they were concerned that Jason had previously showed no interest in
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raising K.R.H. and he was putting too many limits on their access to and contact with K.R.H. They
also testified they were worried for K.R.H. because Jason had a bad temper and he got angry and
frustrated easily.
The trial court signed temporary orders in May 2011, naming Jason temporary sole
managing conservator. The order granted Mr. and Mrs. R. possession of K.R.H. two Saturdays
each month and a week during the summer. The trial court further ordered that K.R.H. continue
therapy with Ramona Leonards and that Dr. Leonards make a recommendation regarding whether
Mr. and Mrs. R.’s visitation should be expanded to weekend possession. Shortly before the
December 2012 trial, Mr. and Mrs. R. amended their petition, recognizing that Jason should be
K.R.H.’s conservator and seeking only possession and access under section 153.433 of the Family
Code.
Mr. and Mrs. R.’s testimony established that they regularly saw K.R.H. and spoke to her
on the telephone after the temporary orders were signed. However, Jason tended to monitor the
telephone calls. They testified that Jason cancelled four of the Saturday visitations required by the
temporary orders and did not allow K.R.H. to stay with them during the summer. 1 Appellants
testified that their principal concern is that K.R.H. maintain a close relationship with them and
with the rest of her mother’s family. Mr. R. testified that K.R.H. would “be heartbroken” if access
to her grandparents were discontinued. Her maternal aunt testified that if the court denied access,
K.R.H. would grow up resentful and would believe her grandparents did not love her and did not
want to see her. She believed K.R.H. would be very confused and would be harmed by losing
strong relationships with her extended family.
1
After an enforcement hearing in August 2012, the trial court found Jason had committed four violations of the
Saturday possession order, assessed attorney’s fees against him, and granted makeup possession periods.
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As part of a mediated agreement regarding the temporary orders, the parties agreed to
therapy sessions with Dr. Shelley Probber, a licensed psychologist, who was to facilitate
communication between the parties. Dr. Probber testified the parties were in “high conflict” about
how much access Mr. and Mrs. R. should have. Appellants want regularly scheduled visitation at
specified times; whereas, Jason wants it to be more flexible, with him having complete control
over when appellants see K.R.H. Dr. Probber testified that Jason never specified how much access
he believes appellants should have; he simply wants it to be at his discretion. Dr. Probber testified
she halted the sessions in May 2012 after two group meetings because Jason’s hostility caused
them to be unproductive.
In a letter to counsel, Dr. Probber stated that she was unable to make any recommendations
regarding visitation. She testified that based on what the parties told her, she believes K.R.H. has
a “significant relationship” with her grandparents. Dr. Probber testified that, speaking generally
because she does not know K.R.H., it would seem “vitally important for this child to maintain
connections with that side of the family so she doesn’t lose half of who she is.” She testified that
based on her two meetings with the parties, she did not believe Jason would be open to cooperating
with appellants and she is concerned that Jason will not allow appellants to see K.R.H. regularly.
However, Dr. Probber acknowledged children have different reactions to things like this.
She had never met K.R.H. and testified she has no knowledge of how K.R.H. would react if there
were not the kind of access appellants are asking for. She testified that she could not provide any
opinion about whether K.R.H. would suffer either emotional or physical significant impairment if
she were not to see her grandparents. Finally, she testified that although Jason appears very angry
with appellants and has difficulty listening, she has no opinion about his ability to parent.
Jason acknowledged he had been angry with appellants because they wanted to
micromanage his parenting and then sued him to get primary custody of K.R.H. However, he also
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testified that he is not trying to deny appellants complete access to K.R.H., “not by any stretch of
the imagination.” Instead, he wants to be able to manage when the visits occur, taking everything
into account – the grandparents’ schedules, his schedule, and K.R.H.’s volleyball games, church
functions, and activities with her friends.
K.R.H.’s therapist, Ramona Leonards, is a licensed professional counselor at Clarity Child
Guidance Center. She testified she began seeing K.R.H. in August 2010. Jason took K.R.H. in
initially because she was having problems in school, was going to the nurse frequently, and was
exhibiting other signs of anxiety. Leonards testified she had over sixty sessions with K.R.H. and
that she is now thriving. She actively participates in sports and in peer groups at church and at
school and seems well-adjusted.
Leonards testified that one of the topics she and K.R.H. discuss is her visitation with
appellants. After the temporary orders were signed, K.R.H. expressed to Leonards that she was
not comfortable staying overnight at appellants’ house. Leonards recommended to the court in the
summer of 2011 that the possession order not be expanded to include overnight stays. She testified
that remained her recommendation at the time of trial. Leonards also testified that although K.R.H.
wants to see her mother’s family, she feels very resentful about the possession order. Leonards
explained that the problem is the forced and artificial nature of K.R.H.’s visits with appellants.
Under the temporary orders, K.R.H. visits appellants two Saturdays every month for ten hours,
and K.R.H. resents being forced to go at specified times, especially when it conflicts with other
activities.
Leonards testified that in her opinion K.R.H. wants to and should maintain contact with
her maternal relatives and that it would be harmful to K.R.H. if she were permanently denied
access to them. However, she also testified that Jason had never expressed any desire or intent to
deny K.R.H. access to her mother’s family. Leonards testified that in the absence of a court order,
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she believes K.R.H. would want to visit appellants with some kind of regularity and that Jason
would allow it.
At the conclusion of the testimony, the trial court denied appellants’ petition for access and
possession. The trial court later signed findings of fact and conclusions of law that included
findings that Jason adequately cares for K.R.H. and that Jason believes K.R.H. should have some
contact with appellants.
On appeal, Mr. and Mrs. R. argue the trial court erred by denying their request for
possession or access and by failing to appoint a guardian ad litem for K.R.H. We review both
these decisions for abuse of discretion. Scheller, 325 S.W.3d at 645; Derzapf, 219 S.W.3d at 333.
Appellants contend that Jason is an unfit parent and that he intends to exclude them
completely from K.R.H.’s life. Appellants did not prove either of these contentions by a
preponderance of the evidence and the trial court did not abuse its discretion in finding otherwise.
Appellants also failed to prove that K.R.H.’s physical or emotional well-being would suffer if the
court defers to Jason’s decisions about access. In fact, K.R.H.’s therapist, Ramona Leonards,
indicated it would be better for K.R.H.’s emotional well-being if visitation with appellants were
managed by Jason instead of being imposed by court order. We hold that appellants did not meet
the “hefty statutory burden” required to impose court-ordered grandparental access and the trial
court therefore did not abuse its discretion by denying the petition. See Scheller, 325 S.W.3d 642-
44; Mays-Hooper, 189 S.W.3d at 778.
In July 2011, appellants filed a motion for appointment of a guardian ad litem to advocate
for K.R.H. in the proceedings. The trial court’s written order in response to the motion referred to
its previous order that K.R.H. continue therapy with Ramona Leonards and that the parties confer
with her. The court ordered Leonards and another psychiatrist, Dr. Geoffrey Grimes, to comply
with the court’s earlier orders and provide reports regarding their evaluations and
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recommendations about K.R.H.’s school, expanded visitation with Mr. and Mrs. R., and other
matters. The order concluded that if the therapist and psychologist did not comply with the order,
appellants could renew their request for appointment of a guardian ad litem. Appellants did not
provide a record of the hearing where the motion for appointment of a guardian ad litem was heard
and did not provide evidence of whether Leonards and Dr. Grimes provided reports as ordered.
The record does not reflect that appellants ever renewed their request for a guardian ad litem.
The Family Code does not require the trial court to appoint a guardian ad litem in a suit for
grandparent access. The trial court has discretion to appoint a guardian ad litem in a suit for access
to a child if it “finds that the appointment is necessary to ensure the determination of the best
interests of the child . . .” TEX. FAM. CODE ANN. § 107.021(b)(2) (West 2008); Scheller, 325
S.W.3d at 645. The trial court concluded such an appointment was not necessary in this case and
appellants have not pointed to anything in the record that suggests the trial court abused its
discretion in so concluding.
We therefore affirm the trial court’s judgment.
Luz Elena D. Chapa, Justice
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