In the Interest of E.R.D. and H.J.D., Children v. the State of Texas

Opinion filed June 29, 2023
In The
Eleventh Court of Appeals
__________
No. 11-22-00153-CV
__________
IN THE INTEREST OF E.R.D. AND H.J.D., CHILDREN
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CV37174
OPINION
This appeal originates from the trial court’s grant of Appellees, Denise and
James D.’s, petition for possession of and access to their minor grandchildren,
E.R.D. and H.J.D. See TEX. FAM. CODE ANN. § 153.433 (West 2014). In a single
issue, Appellant, Kelly D., E.R.D. and H.J.D.’s biological mother, asserts that the
trial court abused its discretion when it granted Appellees’ petition and request for
possession of and access to E.R.D. and H.J.D. because the evidence is insufficient
(1) to overcome the parental presumption and (2) to support the trial court’s finding
that denying Appellees’ possession of and access to the children would significantly
impair the children’s emotional well-being. We reverse and render.
I. Factual Background
On December 11, 2020, Jeremy D., E.R.D. and H.J.D.’s biological father, died
as a result of a work-related accident. Prior to Jeremy’s death, Denise and James
had a close relationship with E.R.D. and H.J.D. When E.R.D. was born, Kelly and
Jeremy moved in with Denise and James and lived with them until E.R.D. was four.
Kelly and Jeremy thereafter moved into a house next door with their children, but
they all continued to have frequent contact with Denise and James.
After Jeremy’s death, the relationship between Kelly and Denise began to
sour. Kelly and Denise would frequently argue about a variety of issues, including
arguments about the number of lawyers involved in the wrongful death lawsuits that
were filed in connection with Jeremy’s death. These arguments escalated when
Brandi T.—Denise and James’s daughter who lives with them—also began
quarrelling with Kelly. Unfortunately, their disagreements continued to escalate
during the year after Jeremy’s death. As a result, E.R.D. and H.J.D. witnessed, on
several occasions, loud and aggressive arguments between Kelly, Denise, and
Brandi and they also heard Denise and Brandi make negative comments about Kelly.
The deteriorating relationship between Kelly and Denise became known in
the community when Denise and Brandi posted comments about their squabbles on
Facebook and engaged in conversation with unrelated parties in the wider
community—so much so that third parties would approach the family and ask about
the status of the family’s relationship. These ongoing arguments had a negative
effect on the children, and E.R.D. became very guarded and defensive of Kelly
whenever she spent time with Denise and James; she would also cry when she
returned home after visiting Denise and James.
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During this volatile period, Kelly vacillated between whether to restrict and
then resume James and Denise’s access to the children based on the various incidents
that had occurred between the parties. Because the quarrelling and “infighting”
between the parties continued, Kelly decided that she and her children would no
longer have contact with Denise, James, and Brandi. As a result of this decision,
Denise and James filed a petition seeking possession of and access to E.R.D. and
H.J.D.
II. Inadequate Briefing
Prior to addressing the merits of Appellant’s appeal, we must decide whether
Appellant has submitted an adequate brief for our consideration. Appellees contend
that Appellant’s brief is “substantively deficient” because it does not contain any
citations to the record. As a result, Appellees argue that we do not have the authority
to independently review the record. We disagree.
The Texas Rules of Appellate Procedure require that an appellant’s brief must
“contain a clear and concise argument for the contentions made, with appropriate
citations to authorities and to the record.” TEX. R. APP. P. 38.1(i) (emphasis added).
Appellees contend that Appellant’s failure to identify and include record citations in
her brief equates to a failure to present an issue for our review. But this is not an
accurate representation of Appellant’s brief. Here, Appellant’s brief presents an
issue for our review—whether the trial court abused its discretion when it granted
grandparent access and possession to Appellees. Appellant’s brief also includes
citations to authorities in support of her argument. Thus, Appellant’s briefing fails
only to include appropriate citations to the record.
In determining whether this failure is detrimental to her appeal, we look to the
Texas Rules of Appellate Procedure, which directs courts of appeals to liberally
construe briefs and only require substantial compliance with the briefing rules
“[b]ecause briefs are meant to acquaint the court with the issues in a case and to
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present argument that will enable the court to decide the case.” TEX. R. APP. P. 38.9.
While Appellant’s brief does not include citations to the record, as it should, overall,
her brief substantially complies with the rules and adequately acquaints our court
with the issue raised and associated arguments such that we are able to decide the
appeal now before us. As such, we decline to hold that Appellant has failed to
present an issue for our review, as Appellees suggest.
III. Standard of Review
We review a trial court’s decision to grant grandparents’ request for access to
or possession of their grandchildren for an abuse of discretion. In re Derzapf, 219
S.W.3d 327, 333 (Tex. 2007). A trial court abuses its discretion if it grants the
requested access or possession when the grandparents do not “overcome the
presumption that a parent acts in his or her child’s best interest by proving that denial
. . . of access to the child would significantly impair the child’s physical health or
emotional well-being.” In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (quoting
Derzapf, 219 S.W.3d at 333) (internal quotations omitted). This is so because 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.” Derzapf, 219 S.W.3d at 333 (quoting In re
Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)).
In family law cases when an abuse of discretion standard applies, as it does
here, issues that relate to the legal and factual sufficiency of the evidence are not
independent grounds of review, but, rather, are only factors that are used in assessing
whether the trial court abused its discretion. In re A.J.E., 372 S.W.3d 696, 698 (Tex.
App.—Eastland 2012, no pet.). “The trial court does not abuse its discretion so long
as the record contains some evidence of substantive and probative character to
support its decision.” Id. at 699.
“When, as here, findings of fact are neither properly requested nor filed, we
imply all necessary findings of fact to support the trial court’s order.” In re W.C.B.,
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337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.); Waltenburg v. Waltenburg,
270 S.W.3d 308, 312 (Tex. App.—Dallas 2008, no pet.). However, when the
appellate record includes the reporter’s record, as it does in this case, the trial court’s
implied findings may be challenged for legal and factual sufficiency. W.C.B., 337
S.W.3d at 513.
In a legal sufficiency review, we consider the evidence in the light most
favorable to the trial court’s order and indulge every reasonable inference that
supports it. See City of Keller v. Wilson, 168 S.W.3d 802, 822 (Tex. 2005); In re
S.E.K., 294 S.W.3d 926, 930 (Tex. App.—Dallas 2009, pet. denied). In a challenge
to the factual sufficiency of the evidence, we consider all the evidence and determine
whether the evidence supporting the order is so weak or against the overwhelming
weight of the evidence such that the order is clearly wrong and manifestly unjust.
See City of Keller, 168 S.W.3d at 826.
If the evidence is conflicting, we must presume that the factfinder resolved
any inconsistency in favor of the order if a reasonable person could do so. Id. at 821.
In this regard, the trial court, as the factfinder, is in the best position to observe the
witnesses and their demeanor, and we afford great latitude and deference to the trial
court when determining the best interest of a child. S.E.K., 294 S.W.3d at 930.
IV. Applicable Law
The 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, 65–66 (2000). This
fundamental right is recognized in Texas jurisprudence based on the legal
presumption that it is in a child’s best interest to be raised by his or her biological
parents. In re C.J.C., 603 S.W.3d 804, 812 (Tex. 2020) (citing Taylor v. Meek, 276
S.W.2d 787, 790 (Tex. 1955)). Further, a fit parent is entitled to the presumption
that they act in the best interest of their children. Id. at 820. “[S]o long as a parent
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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 to further question
the ability of that parent to make the best decisions concerning the rearing of that
parent’s children.” Troxel, 530 U.S. at 68–69.
The “fit parent presumption” is “deeply embedded in Texas law as part of the
determination of a child’s best interest.” C.J.C., 603 S.W.3d at 812. This
presumption has also been incorporated into the statute that permits grandparents to
seek the possession of or access to their grandchildren. See FAM. § 153.433(a)(2).
The statute provides that a trial court may grant to a grandparent reasonable
possession of or access to his or her grandchild if:
(1) at the time the relief is requested, at least one biological or adoptive
parent of the child has not had that parent’s parental rights terminated;
(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.
Id. § 153.433(a) (emphasis added).
The statutory burden to overcome the “fit parent presumption” has been
described by the Texas Supreme Court as a “high threshold” and “hefty.” Scheller,
325 S.W.3d at 643; Derzapf, 219 S.W.3d at 334. When a nonparent requests
possession of a child, the child’s best interest is clothed with the presumption that
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the fit parent, and not a court, shall make the determination as to whether to grant
the request. C.J.C., 603 S.W.3d at 820. Therefore, to meet their burden and
overcome this presumption, the grandparents must prove, at a minimum, that their
grandchildren’s physical health or emotional well-being has been, and will continue
to be, significantly impaired by the denial of their request for possession of or access
to their grandchildren. See Interest of N.H., 652 S.W.3d 488, 497 (Tex. App.—
Houston [14th Dist.] 2022, pet. filed); Rolle v. Hardy, 527 S.W.3d 405, 420 (Tex.
App.—Houston [1st Dist.] 2017, no pet.) (holding that to meet this standard the
grandparents must present evidence of specific, identifiable behavior or conduct by
the parent that shows that the child’s physical health or emotional well-being has
been, and will be, significantly impaired by the denial of their request for possession
or access) (citing In re L.D.F., 445 S.W.3d 823, 830 (Tex. App.—El Paso 2014, no
pet.)); In re J.M.T., 280 S.W.3d 490, 493 (Tex. App.—Eastland 2009, no pet.).
In challenging this presumption, we also hold, as did the court in Rolle, that
the grandparents must present proof of specific, identifiable behavior or conduct by
the child’s parent that demonstrates that the child’s physical health or emotional
well-being has been, and will continue to be, significantly impaired by the denial of
their request for possession of or access to the children.
V. Discussion
Kelly asserts that the trial court abused its discretion when it granted Denise
and James possession of and access to E.R.D. and H.J.D. because there is no
evidence of harm to the children, much less evidence of any significant impairment
to the children’s physical health or emotional well-being, if possession or access was
denied.
When evaluating whether possession or access should be granted to a
grandparent, courts have consistently considered three factors: (1) parental fitness,
(2) the child’s health and emotional well-being, and (3) the parent’s intent to exclude
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the grandparent’s access completely. Troxel, 530 U.S. at 68–71 (the three factors
upon which the Supreme Court in Troxel held that the State of Washington’s
grandparent visitation statute was unconstitutional are that (1) the child’s mother
was not unfit, (2) her decisions about grandparent access were given no deference,
and (3) she was amenable to allowing the grandparent some visitation); In re Mays-
Hooper, 189 S.W.3d 777, 777–78 (Tex. 2006) (holding that the grandparents’
visitation request should have been denied because there was no evidence that (1) the
child’s mother was unfit, (2) the child’s health or emotional well-being would suffer
if the court deferred to her decisions, and (3) the mother intended to completely
exclude the grandparents’ access to the child). Regarding the third factor noted
above, which is the focus of this appeal, we have held that “the ‘denial of possession
of or access to the child’ by the grandparent is an express element in obtaining
grandparent access under the statute in contravention of a parent’s preference.”
J.M.T., 280 S.W.3d at 493.
Here, Denise and James do not contend that Kelly is an unfit parent. To the
contrary, during the final hearing both Denise and James testified that Kelly is a
good and capable mother. Nevertheless, it is undisputed that Kelly has, and will
continue to exclude, Denise and James from having any possession of or access to
E.R.D. and H.J.D. Thus, we need only consider whether Denise and James met their
burden to show that the denial of their possession of or access to the children has,
and will continue to, significantly impair the children’s physical health or emotional
well-being.
To meet the “significant impairment” standard, the evidence must do more
than raise a mere surmise or suspicion of possible harm; the evidence must establish
that the associated impairment is, and will be, significant. In re F.E.N., 542 S.W.3d
752, 770 (Tex. App.—Houston [14th Dist.] 2018), pet. denied, 579 S.W.3d 74 (Tex.
2019) (per curiam). “Significant impairment” may be inferred from the uprooting
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of a child from a nonparent caretaker; however, to establish significant impairment,
some evidence must be presented to explain how the impairment is or will be
significant, such as evidence that the child’s removal would be devastating to or
cause serious psychological damage to the child. See In re J.C., 346 S.W.3d 189,
194–95 (Tex. App.—Houston [14th Dist.] 2011, no pet.).
The Texas Supreme Court’s decisions in Scheller and Derzapf demonstrate
the high burden that must be met to overcome the fit parent presumption under the
significant impairment standard. See Scheller, 325 S.W.3d at 643–44; Derzapf, 219
S.W.3d at 330–34.
In Derzapf, the court held that the children’s lingering sadness from the lack
of contact with the grandparents did not sufficiently demonstrate significant harm to
the children. 219 S.W.3d at 330–34. A court-appointed psychologist testified that
the children’s sadness could not be characterized as depression and that there was
no indication that they exhibited other behavioral problems as a result of the lack of
contact with the grandparents; therefore, this circumstance did not rise to a level of
significant emotional impairment. Id.
Similarly, in Scheller, the court held that the evidence did not meet the
significant impairment threshold based on the children’s sadness that resulted from
losing a family member and thereafter “missing” their grandparents, despite proof
that (1) the children displayed anger; (2) one of the children experienced instances
of isolated bed wetting and nightmares; (3) witnesses testified that denying the
grandparents access to the children would impair the children’s physical or
emotional development; and (4) the grandparents were the children’s only remaining
maternal familial connection. 325 S.W.3d at 643–44.
The record before us is essentially devoid of any evidence that would directly
or indirectly show that the children’s physical health or emotional well-being has
been, and will continue to be, significantly impaired as a result of their absence from
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Denise and James. According to the evidence adduced by Denise and James at the
final hearing, they enjoyed a close relationship with the children in the past—E.R.D.
and her parents (Kelly and Jeremy) lived with Denise and James for the first four
years of her life, and after they moved next door, Denise and James continued to see
the children every day until Kelly decided to deny them access. Denise and James
testified about their desire to maintain a close relationship with the children, and that
they enjoyed providing a stress-free environment for the children; they also detailed
many of the activities that they participated in with the children. According to
Denise and James, they intended to continue to foster the value of “family” by telling
the children about Jeremy and facilitating their relationship with their extended
family.
As for the alleged impairment to the emotional well-being of the children,
Denise and James testified to only a single incident that concerned H.J.D.—one
morning H.J.D. wandered away from his home when he lived next door and later
appeared at their house without Kelly’s knowledge. They also testified about a
previous incident where child protective services became involved in the family’s
life because of Kelly’s alleged marihuana use at the time of E.R.D.’s birth. See
Rolle, 527 S.W.3d at 420 (“A nonparent cannot meet his burden by . . . showing . . .
that the parent would not have been a proper custodian in the past.”) (citing May v.
May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi–Edinburg 1992, writ
denied) (“If the parent is presently a suitable person to have custody, the fact that
there was a time in the past when the parent would not have been a proper person to
have such custody is not controlling.”).
Nevertheless, neither Denise, James, nor any other witness that they presented
at the final hearing testified as to how this separation and the denial of access had
affected the children, if at all. In fact, Denise and James were unaware of the
children’s current emotional state because they had not seen the children for at least
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six months. Denise and James only testified that their denial of access to the children
would be a lifestyle change for the children. Based on this, they argue that the
evidence they adduced at trial supports an inference that this separation and their
denial of access to the children would result in significant impairment to the
emotional well-being of the children. In support of their argument, they rely on
Casas v. Adriano, No. 13-06-373-CV, 2007 WL 1941422, at *1 (Tex. App.—Corpus
Christi–Edinburg July 5, 2007, no pet.) (mem. op.).
In Casas, the evidence showed that the child had a prior close relationship
with the grandparents—the child previously resided with the grandparents, the
grandparents acted as the child’s primary caretakers, and the child referred to them
as “mom” and “dad.” Id. at *5. The court of appeals held that this evidence was
sufficient to support an inference that a break in this close familial relationship could
seriously affect the child’s emotional well-being. Id. After the separation, the
grandfather observed that the child seemed “crestfallen” and “kind of sickly.” Id. at
*4. Also, the grandfather had previously complained to child protective services that
when the mother delivered the child to the grandparents during a visitation period
that the child was “dirty” and the milk in his bottle was “rotten.” Id.
In this case, the evidence is clearly distinguishable from the circumstances in
Casas and does not support a similar inference. While Denise and James presented
evidence that they had a prior, close relationship with the children, there are
significant differences: (1) they never acted as the primary caretakers for E.R.D. or
H.J.D., (2) H.J.D. never lived with them, and (3) E.R.D. and H.J.D. never referred
to them as “mom” and “dad.” Further, while there was some evidence in Casas that
the child had suffered some negative effects as a result of being unable to see the
grandparents, neither Denise nor James could attest as to whether this separation had
negatively affected E.R.D. and H.J.D. in any respect. In fact, when asked at the final
hearing about the how this separation had significantly impaired the emotional well-
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being of the children, Denise responded “Gosh, what knowledge, all I have is my
heart. I know how much they loved us . . . I don’t have any reason to believe that
the kids have gone out of their mind or something, whatever. But I do know our
hearts and how much they loved being with us is all I can tell you.” Heartfelt
expressions, without more, are insufficient to meet the “significant impairment”
standard.
To the contrary, Kelly presented evidence that the children’s emotional well-
being had improved since the separation. Kelly testified that (1) the children have
not appeared to be upset with being unable to spend time with Denise and James and
have been very happy since the separation began, (2) E.R.D. is doing well in school,
and (3) the children talk about their father frequently and in a positive manner. Kelly
also presented evidence from five other witnesses who have close relationships with
the children and have been able to interact with them during the same six-month
period that followed the separation. Each witness testified similarly—that the
children appear to be happy and have benefited from the separation.
Further, the record shows that the ongoing arguments between Kelly, Denise,
and Brandi negatively affected the children. Denise testified that since the
relationship with Kelly and Brandi began to decline, but prior to the separation, she
observed that E.R.D. was guarded and often defended Kelly when E.R.D. was in
Denise’s presence. Kelly testified that E.R.D. would sometimes cry after she visited
Denise and James, and that it was her impression that E.R.D. had been told things
about her and Jeremy’s relationship—namely that Kelly did not love Jeremy. The
children also observed several fights and other confrontations between Denise and
Kelly, including one incident that became physical when Denise threw a diffuser at
Kelly.
We have thoroughly reviewed the record and conclude that Denise and James
failed to overcome the fit parent presumption. To overcome this presumption,
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Denise and James were required to present evidence of “specific, identifiable
behavior or conduct” by Kelly that would significantly impair the children’s physical
health or emotional well-being. Rolle, 527 S.W.3d at 420; J.M.T., 280 S.W.3d at
493. They failed to do so. Like the children in Scheller and Derzapf, the evidence
here indicates, according to Denise and James, that the children potentially
experienced sadness because the children missed them. However, lingering sadness
from a lack of contact between the children and their grandparents does not
demonstrate significant impairment. See Scheller, 325 S.W.3d at 643–44; Derzapf,
219 S.W.3d at 330; see also J.M.T., 280 S.W.3d at 493 (the evidence of significant
impairment to the child’s emotional development was lacking when it essentially
consisted of an affirmative response from an interested witness, one of the
grandparents seeking access to the child). Similar to the circumstances in J.M.T.,
the evidence that Denise and James contend is tantamount to significant impairment
consists only of an isolated, heartfelt comment from an interested witness—Denise.
Moreover, the record shows that Kelly initiated the separation because arguments
between her and Denise persisted and continued to escalate, and because she wanted
to remove her children from being in an argumentative environment.
Nonparents, such as Denise and James, cannot meet their burden to overcome
the parental presumption simply by claiming that they believe they would be a better
custodian of the children, that they had a close relationship and significant
involvement with the children in the past, or that the children’s parent would not
have been a proper custodian of the children in the past. Troxel, 530 U.S. at 72–73
(a trial court may not interfere with the child rearing decisions that are made by a fit
parent simply because a better decision could have been made by another); In re
H.L., 613 S.W.3d 722, 726–27 (Tex. App.—Fort Worth 2020, no pet.); In re Kelly,
399 S.W.3d 282, 284 (Tex. App.—San Antonio 2012, org. proceeding); J.M.T., 280
S.W.3d at 493. To prevail, Denise and James were required to present evidence to
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establish the significant impairment component. Here, there is none. Further, what
may be inferred from a grandparent’s past relationship with a child, alone, is not
enough to meet the “significant impairment” standard.
We recognize the importance of developing and maintaining a loving and
productive grandparent/grandchild relationship. However, there are compelling
reasons why legal standards exist that govern this sensitive subject. In this context,
we are bound to follow these established standards. Therefore, based on this record,
we hold that the trial court abused its discretion when it granted Denise and James
access to and possession of E.R.D and H.J.D. Accordingly, we sustain Appellant’s
sole issue on appeal.
VI. This Court’s Ruling
We reverse the order of the trial court and render judgment in favor of
Appellant.
W. STACY TROTTER
JUSTICE
June 29, 2023
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
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