In Re Kady Miranda KELLY , 2012 Tex. App. LEXIS 10259 ( 2012 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-12-00718-CV
IN RE Kady Miranda KELLY
Original Mandamus Proceeding 1
Opinion by: Karen Angelini, Justice
Sitting: Karen Angelini, Justice
Phylis J. Speedlin, Justice
Marialyn Barnard, Justice
Delivered and Filed: December 12, 2012
PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED
On October 26, 2012, relator Kady Miranda Kelly filed a petition for writ of mandamus,
complaining of the trial court’s April 10, 2012 temporary order granting grandparent possession
and access. We conclude the trial court erred in awarding grandparent access. Therefore, we
conditionally grant mandamus relief.
BACKGROUND
This proceeding arises out of an original petition seeking grandparent access filed in the
trial court on February 14, 2012 by Sandra Hernandez and Michael Hernandez (hereinafter “the
Hernandezes). The petition seeks access to N.M.H. who is the twenty-one month old son of
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This proceeding arises out of Cause No. 2012-CI-02302, styled In the Interest of N.M.H., pending in the 438th
Judicial District Court, Bexar County, Texas, the Honorable Victor Negrón, Jr. presiding. However, the order
complained of was signed by the Honorable John D. Gabriel, presiding judge of the 131st Judicial District Court,
Bexar County, Texas.
04-12-00718-CV
Michael Anthony Hernandez, II, deceased (hereinafter “Michael”) and Kady Kelly (hereinafter
“Kady”). Michael died on January 9, 2012. On March 14, 2012, the trial court held a hearing on
the temporary order in which the Hernandezes sought access to N.M.H. The Hernandezes and
Kady each testified at the hearing. At the conclusion of the hearing, the trial court granted the
Hernandezes supervised access. This petition for writ of mandamus ensued.
ANALYSIS
I. Standard of Review
Mandamus will issue only to correct a clear abuse of discretion for which the relator has
no adequate remedy at law. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)
(orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding).
“A trial court has no ‘discretion’ in determining what the law is or applying the law to the facts,”
and “a clear failure by the trial court to analyze or apply the law correctly will constitute an
abuse of discretion.” Walker, 827 S.W.2d at 840. To satisfy the clear abuse of discretion
standard, the relator must show “that the trial court could reasonably have reached only one
decision.” Id. The Texas Supreme Court has held that a trial court abuses its discretion when it
grants access to a grandparent who has not met the standard set out in section 153.433 of the
Texas Family Code. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig. proceeding).
Furthermore, a parent lacks an adequate remedy by appeal when a trial court errs in awarding
grandparent access. See id. at 335. Therefore, mandamus relief is available to review an order
that grants grandparent access. See id.
II. Access to Grandchild Under Family Code Section 153.433
In order for a trial court to award a grandparent access to a grandchild, the strict
requirements set out in section 153.433 of the Texas Family Code must be met. TEX. FAM. CODE
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§ 153.433 (West Supp. 2012). In part, section 153.433(a) requires that the grandparent
requesting possession of or access to the child overcome “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.” Id. § 153.433(a)(2). The Texas Supreme Court has emphasized that
section 153.433(a) imposes a high threshold for the grandparent to overcome the presumption
that a fit parent acts in his or her child’s best interest. Derzapf, 219 S.W.3d at 334.
Therefore, in order for the trial court to have the discretion to award grandparent access,
the Hernandezes had to overcome the statutory presumption that Kady is acting in the best
interest of N.M.H. by proving by a preponderance of the evidence that denying the Hernandezes
access to N.M.H. would significantly impair N.M.H.’s physical health or emotional well-being.
See TEX. FAM. CODE § 153.433(a)(2). At the hearing, Mrs. Hernandez testified that she thinks it
is in N.M.H.’s best interest to continue a relationship with the Hernandezes. She further testified
that without access to N.M.H., they will never have a close relationship with him and won’t be
able to share pictures of his dad. Mr. Hernandez testified they had watched N.M.H. “quite a few
times.” He further testified that he believed it would not be in N.M.H.’s best interest to have
them cut out of his life and that he would benefit from a relationship with them. In response to
the petition for writ of mandamus, the Hernandezes contend the denial of access to N.M.H.
would significantly impair N.M.H.’s emotional well-being and there was evidence presented
regarding the close relationship the Hernandezes share with N.M.H.
However, while we acknowledge the Hernandezes each testified as to their close
relationship with N.M.H., a review of the record indicates the evidence at the hearing failed to
meet the strict requirement that denying the Hernandezes access to N.M.H. would significantly
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impair his physical health or emotional well-being. See TEX. FAM. CODE § 153.433(a)(2).
Therefore, we conclude the Hernandezes did not meet their burden to warrant the trial court’s
interference with Kady’s parental rights by awarding the Hernandezes court-ordered access to
N.M.H. Accordingly, the trial court abused its discretion when it granted access to the
Hernandezes when they had failed to meet the required standard. See Derzapf, 219 S.W.3d at
333.
III. Waiver
The Hernandezes assert Kady waived her right to mandamus relief by delaying filing her
petition for writ of mandamus in this court. When analyzing whether a relator’s delay in filing a
petition for writ of mandamus prevents the writ from being issued, the Texas Supreme Court has
held that “[a]lthough mandamus is not an equitable remedy, its issuance is largely controlled by
equitable principles. One such principle is that ‘[e]quity aids the diligent and not those who
slumber on their rights.’” Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367 (Tex. 1993) (orig.
proceeding) (quoting Callahan v. Giles, 137 Tex. 571, 576, 155 S.W.2d 793, 795 (1941) (orig.
proceeding)). In determining if a relator’s delay prevents the issuance of the writ, we analogize
to the doctrine of laches. In re ExxonMobil Prod. Co., 340 S.W.3d 852, 860 (Tex. App.—San
Antonio 2011, orig. proceeding [mand. denied]). A party asserting the defense of laches must
show: (1) unreasonable delay by the other party in asserting its rights, and (2) harm resulting to
the party as a result of the delay. See id. Additionally, because this is a proceeding regarding
access to a child, the primary consideration is the best interest of the child. See TEX. FAM. CODE
§ 153.002 (providing that “[t]he 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”); § 153.433.
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As to the first consideration of whether Kady has unreasonably delayed in seeking relief
from the trial court’s order, Kady contends that although she requested the transcript of the
proceeding, she did not receive the transcript until July 3, 2012. However, Kady does not
explain the almost four month delay from the time the transcript was received until the petition
was filed in this court. Therefore, we turn to whether the Hernandezes have established the
necessary showing of harm. The Hernandezes contend that if the trial court’s order is vacated it
would cause harm to N.M.H. because the bond between him and the Hernandezes has only
grown stronger. However, we conclude that the allegation of harm made by the Hernandezes is
not sufficient in this case to warrant a finding that it is in N.M.H.’s best interest to conclude that
Kady waived her right to mandamus relief.
CONCLUSION
Based on the foregoing analysis, we hold the trial court clearly abused its discretion in
granting the Hernandezes access to N.M.H. Accordingly, we conditionally grant the petition for
writ of mandamus. The writ will issue only if the trial court fails to comply within fourteen days.
Karen Angelini, Justice
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