Saturday, June 30, 2007

Whitworth v. Whitworth (Tex.App.- Houston, 2007)

Houston Appeals Court Holds Grandparent Had Standing to Intervene - Custody Properly Awarded to Grandmother; No abuse of discretion in limiting parental rights of mother despite presumption in favor of natural parents.

Tammy Renee Whitworth v. Douglas Wayne Whitworth, No. 01-04-01026-CV (Tex.App.- Houston [1st Dist.] Mar. 16, 2007)(Hanks)(subst. opinion on rehearing)(trial court did not abuse its discretion in appointing grandmother as the sole managing conservator after finding, by a preponderance of credible evidence, that appointing mother as a managing conservator would result in serious physical or emotional harm to the child).
On Appeal from the 257th District Court
Harris County, Texas; Trial Court Cause No. 2000-64428


Carol Whitworth, the intervenor, filed a motion for rehearing. We withdraw our Opinion and Judgment of November 22, 2006 and grant the motion for rehearing.

Appellant, Tammy Renee Whitworth, challenges the trial court's final decree of divorce that named intervenor, Carol Whitworth, sole managing conservator of Tammy's minor child, K.C. In two issues on appeal, Tammy argues that the trial court erred (1) in failing to name her as joint managing conservator and (2) in giving her less than a standard possession order. We affirm.


Tammy and Douglas Whitworth married in August 2000, but separated in September or October 2000. Douglas filed an original petition for divorce a couple of months later. A second original petition for divorce was filed by Tammy, and the trial court signed an order of consolidation. Tammy and Douglas's only child, K.C., was born on June 13, 2001. (1) By order entered November 30, 2001, Tammy was given custody of K.C. and Douglas was given two hours a day visitation five days a week and ordered to pay $500 a month to Tammy as temporary spousal support. Three months later, Tammy filed a motion for enforcement of temporary spousal support.

Almost one year after Tammy was given custody, the trial court heard the parties' application
for temporary custody orders pending the divorce. Although we have no transcript of the hearings held on a Friday and Monday, testimony from the divorce hearing indicates that the trial court heard testimony that Tammy had repeatedly denied Douglas access to K.C., had alleged that Douglas sexually abused A.C., K.C.'s half-sister, and feared his unsupervised visitation with K.C. Douglas repeatedly denied these allegations. The testimony further indicated that, during the course of the earlier hearing, the trial court ordered Tammy to have her mother, Gayle Cash, bring K.C. to the court and warned her numerous times that she would be held in contempt if she did not, but Tammy did not have K.C. brought to the court. The docket sheets reflect that, at the end of the Friday hearing, the trial court found Tammy in contempt and sentenced her to 10 days in jail for "continuous parental alienation against father through repeated visitation/access denials and behavior in court."

On the same day as the Friday hearing, Carol Whitworth, Douglas's mother, filed an original petition for intervention stating that she was K.C.'s paternal grandmother and requesting that K.C. be placed in her care on "a temporary and/or permanent basis."

Tammy stayed in jail for the weekend and appeared in court for the continuation of the hearing on Monday. At the end of the hearing, the trial court entered an order appointing Carol, the intervening grandparent, as temporary sole managing conservator of K.C. and Tammy and Douglas as temporary possessory conservators with only supervised rights of possession for four hours every other week through the SAFE Supervised Visitation Program of the Victim's Assistance Center ("SAFE"). The docket sheet from the Monday hearing stated that Tammy and her mother, Gayle Cash, had "exercised continuous parental alienation against father through repeated visitation/access denials and behavior in court during this hearing" and that supervised visitation was ordered because of the seriousness of the allegations against Douglas and the fact that the trial court deemed Tammy a "flight risk with child as demonstrated by her behavior to court since 10/18/02 [the Friday hearing]." The trial court ordered Dr. Edward Silverman to conduct psychological evaluations of Tammy, Douglas, and Carol. Both Tammy and Douglas were ordered to pay Carol child support for K.C. and to ensure the maintenance of health insurance for K.C. The trial court also enjoined Tammy from telephoning Carol and from going within 50 feet of Carol's residence. Four months later, the trial court also ordered that Tammy and Douglas were enjoined from taking photos of K.C. while she was at SAFE.
More than one year later, on April 13, 2004, the trial court heard evidence to determine custody of two-year-old K.C. At the time of trial, Douglas was not seeking primary custody of the child. The trial court entered a final decree of divorce stating that neither Tammy nor Douglas would be the managing conservator of K.C. because it "would not be in the best interest of the child because such appointment would significantly impair the child's physical health or emotional development."

The decree ordered that Carol, the intervening grandparent, be appointed as the sole managing conservator of K.C. The trial court found that a standard possession order for either Tammy or Douglas was inappropriate and not in the best interest of K.C. It ordered that Tammy continue to have only supervised visitation for four hours every other Saturday and that Douglas have supervised visitation to be determined by his mother, Carol. The trial court entered no findings of fact or conclusions of law. Two months later, Tammy filed a motion for new trial, which the trial court denied. Tammy appeals from the trial court's custody determination in the divorce decree.


We first review Carol's standing to intervene in this action. The parties did not raise standing in their initial set of briefs nor was a motion to strike the intervention filed with the trial court, but we may address it sua sponte. (2) We review a court's determination of a grandparent's standing to intervene in a pending divorce proceeding under an abuse of discretion standard. See Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006). A trial court abuses its discretion when its decision is arbitrary or unreasonable. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

Carol has standing to intervene in this action. Generally, an intervenor must show standing to maintain an original suit in order to intervene. Segovia-Slape v. Paxson, 893 S.W.2d 694, 696 (Tex. App.--El Paso 1995, no writ); McCord v. Watts, 777 S.W.2d 809, 812 (Tex. App.--Austin 1989, no writ). This showing requires that the intervenor have some present justiciable interest in the subject matter of the suit. Segovia-Slape, 893 S.W.2d at 696. However, an intervenor in a suit affecting the parent-child relationship does not need to plead or prove the standing required to institute an original suit because managing conservatorship is already in issue. Id. Specifically, section 102.004(b) of the Family Code provides that the trial court may grant a grandparent leave to intervene in a pending suit filed by a party authorized under section 102 of the Family Code to bring an original suit affecting the parent-child relationship. Section 102.004(b), as it existed at the time that Carol and Douglas filed their divorce, provided that:

An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this subchapter.

Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2006) (emphasis added); see In re M.A.M., 35 S.W.3d 788, 790 (Tex. App.--Beaumont 2001, no pet.) (holding that trial court did not abuse its discretion by allowing the intervention of biological grandparent under section 102.004(b)); McCord, 777 S.W.2d at 812 ("It has been held that, as a matter of law, grandparents possess a justiciable interest in their grandchild" and that grandparents who intervene in a proceeding are not required to plead and prove the requirements for standing to bring an original action.). This subchapter applies to interventions seeking managing conservatorships as well as those seeking possessory conservatorships. In re Hildago, 938 S.W.2d 492, 496 (Tex. App.--Texarkana 1996, no writ).

This relaxed standing rule for intervention promotes the overriding policy in all suits affecting the parent-child relationship, that of protecting the best interest of the child. Segovia-Slape, 893 S.W.2d at 696; see also In the Interest of K.T. & M.T., 21 S.W.3d 925, 927 (Tex. App.--Beaumont 2000, no pet.) ("Sound policy underlies the Legislature's creation of a relaxed standing rule subject to court discretion for intervention in an existing suit. Where a suit is already pending, concern for the privacy of the parties is subordinate to the overriding concern for the best interest of the children."); Harrison v. Harrison, 734 S.W.2d 737, 740-41 (Tex. App.--Eastland 1987, no writ) ("There is a significant difference between filing an original proceeding which could disrupt the children's relationship with their parents and intervening in a pending suit in which that relationship had been sufficiently interrupted to cause the filing of a suit requiring the courts to decide what decree would be in the children's best interest."); Young v. Young, 693 S.W.2d 696, 698 (Tex. App.--Houston [14th Dist.] 1985, writ dism'd) ("Intervention under these circumstances may enhance the trial court's ability to adjudicate the cause in the best interests of the child."). Thus, while the statutory scheme assures that grandparents are not entitled to disrupt the child's family life and initiate suits for managing conservatorship except in limited circumstances, once the child's best interest is before the court and being litigated, the trial court has discretion to determine that the intervention by a grandparent may enhance the trial court's ability to adjudicate what is in the best interest of the child. McCord, 777 S.W.2d at 812.

In the instant case, Tammy and Douglas had filed a suit for divorce. As K.C.'s biological parents, pursuant to section 102 of the Family Code, they were both authorized to file an original suit affecting the parent-child relationship. Allegations of inappropriate and questionable behavior by both parents had been asserted, raising the question of parental custody. It was in this context that Carol filed a petition for intervention. Carol's petition was filed on the same day that the trial court found Tammy in contempt and sentenced her to 10 days in jail. Carol is K.C.'s undisputed paternal grandmother and contends that her appointment as managing conservator would be in the child's best interest. Accordingly, the trial court did not abuse its discretion in finding that she had standing to intervene in this suit. See In re M.A.M., 35 S.W.3d at 790. (3)

Sole Managing Conservatorship

In two issues, Tammy argues that the trial court erred by appointing Carol as the sole managing conservator with primary physical possession of K.C. and giving Tammy a less than standard possession order. Tammy contends that awarding managing conservatorship to Carol under the facts of this case violated section 153.131 of the Family Code and the Due Process Clause of the United States Constitution. See Tex. Fam. Code Ann. § 153.131 (Vernon 2002).

Standard of Review

We review a trial court's determination of conservatorship for an abuse of discretion. Gillespie, 644 S.W.2d at 451. The test for an abuse of discretion is whether, in the opinion of the reviewing court, the trial court's rulings were arbitrary or unreasonable. Id. The mere fact that a trial judge may decide a matter within his discretion in a different manner than an appellate judge in a similar circumstance does not demonstrate that an abuse of discretion has occurred. Sw. Bell Tel. Co. v. Johnson, 389 S.W.2d 645, 648 (Tex. 1965). An abuse of discretion does not occur as long as some evidence of a substantive and probative character exists to support the trial court's decision. Lide v. Lide, 116 S.W.3d 147, 152 (Tex. App.--El Paso 2003, no pet.).
Section 153.131 of the Family Code

There is a strong presumption that the best interest of a child is served if a natural parent is appointed as a managing conservator. Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002); Brook v. Brook, 881 S.W.2d 297, 299 (Tex. 1994); In re De La Pena, 999 S.W.2d 521, 527 (Tex. App.--El Paso 1999, no pet.); In the Interest of A.D.H., 979 S.W.2d 445, 447 (Tex. App.--Beaumont 1998, no pet.). Section 153.131(a) statutorily provides for the appointment of the parent as sole managing conservator or the parents as joint managing conservators, unless the court finds the appointment would not be in the best interest of the child because it would significantly impair the child's physical health or emotional development. Tex. Fam. Code Ann. § 153.131(a).
For the court to award managing conservatorship to a non-parent under section 153.131, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Brook, 881 S.W.2d at 298; In the Interest of M.W., 959 S.W.2d 661, 665 (Tex. App.--Tyler 1997, no writ). There must be evidence to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. M.W., 959 S.W.2d at 665. This link between the parent's conduct and harm to the child may not be based on evidence which merely raises a surmise or speculation of possible harm. Id. When a non-parent and a parent are both seeking managing conservatorship, "close calls" go to the parent. Id. at 666; Ray v. Burns, 832 S.W.2d 431, 434 (Tex. App.--Waco 1992, no writ).

An adult's future conduct may be somewhat determined by recent past conduct. M.W., 959 S.W.2d at 666. In and of itself, however, evidence of past misconduct may not be sufficient to show present unfitness. Id. Further, it is wholly inadequate to simply present evidence that a non-parent would be a better choice as custodian of the child. Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990). The non-parent must offer evidence of specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Id. Specific acts or omissions of a parent implicating a significant impairment to a child's emotional development may be inferred from direct evidence. De La Pena, 999 S.W.2d at 529.

Custody disputes by their very nature are inherently fact-intensive. Id. Appellate courts routinely defer to the fact finder at trial concerning matters of credibility and demeanor, but perhaps in no other type of litigation is it more critical. Id.

In this case, during the divorce trial, the trial court heard testimony from numerous witnesses who presented the trial court with specific, credible evidence that, if Tammy was given managing conservatorship, K.C.'s emotional health would be significantly impaired. First, there was evidence presented to the trial court that Tammy has a history of subjecting K.C. to repeated investigations for claims of sexual and physical abuse when there was no evidence of abuse. There was evidence that, if Tammy was given managing conservatorship, she would continue to make such reports and significantly impair K.C.'s emotional health. Second, there was evidence presented to the trial court that Tammy has a history of denying K.C. any contact with her biological father. There was evidence presented that, if Tammy was given managing conservatorship, she would continue to deny K.C. access to her father, which would significantly impair K.C.'s emotional health.

1. Repeated investigations for abuse

During the divorce trial, the trial court heard evidence that, after Carol was given temporary
managing custody of K.C., Tammy began making claims to CPS and law enforcement authorities that K.C. was being neglected by Carol and was being molested by Douglas. As a result, K.C. was subjected to repeated investigations by CPS and law enforcement authorities who found no evidence to support any of Tammy's very specific and graphic claims of abuse.

a. Christina Bailey

Christina Bailey, a Children's Protective Services ("CPS") investigator, testified regarding her investigations into Tammy's allegations of abuse. She testified that, after Carol received custody, CPS received eight reports of physical abuse and neglect to K.C. by Carol and Douglas.
First Report: On November 3, 2002, just two weeks after Carol received custody of K.C., CPS received an anonymous report of the abuse of K.C. (4) The caller reported that K.C. had what appeared to be cigarette burns all over her, had lost a lot of weight and was very pale, had bruises and bumps all over her body, had some kind of open sores on her head that were oozing pus, had scratch marks on her face, and had a rash that was covering her from head to toe. The caller also reported that K.C. spent a lot of time with Douglas. A CPS caseworker investigated the claims. She met with Carol, physically observed K.C., and found no evidence of abuse. Despite Tammy's testimony that the investigations were "inconclusive," Bailey testified at the divorce trial as follows:

Q. So did - so was there a finding of any cigarette burns?
A. No.
Q. No finding of weight loss?
A. No.
Q. No finding of bruises all over the body?
A. No.
Q. No open sores?
A. No.
Q. And no scratch marks to the face?
A. No.

CPS determined that K.C. did have some red sores on her body but they were not the result of abuse or neglect.

Second Report: On March 18, 2003, Tammy reported to CPS that K.C. had been physically neglected by Carol and sexually abused by Douglas. Tammy reported that K.C. had vaginal irritation that was not consistent with diaper rash and that this was a sign that she was likely being sexually abused and that K.C.'s hair smelled like urine and cigarette smoke and K.C. was not thriving and was underweight. Bailey met with Carol and K.C. two days after the complaint was made and found no evidence of any physical or sexual abuse. Despite Tammy's testimony that the investigations were "inconclusive," Bailey testified as follows:

Q. Did you see any vaginal irritation?
A. No.
Q. Did her hair smell of urine?
A. No.
Q. Did she look like she was under weight or emaciated?
A. No.

Bailey also testified that she did not find any signs of diaper rash or any redness in K.C.'s diaper area. Bailey saw some areas of K.C.'s skin that had red blotches and was told by Carol that the doctor had diagnosed them as eczema. The case was closed.

Third Complaint: On May 19, 2003, Tammy filed a complaint alleging that K.C. had a black eye and that it looked like K.C. had been punched in the eye. She also reported that K.C. had a vaginal irritation up inside the vaginal area that was not consistent with diaper rash (that she did not have any medication or doctor's note for the condition), K.C. had sores with pus in them all over her body (that she did not have any medication for those sores), and Carol had a flea infestation in her home. Bailey again met with Carol and K.C. at Carol's home and found no evidence of any physical or sexual abuse. Despite Tammy's testimony that the investigations were "inconclusive," Bailey testified as follows:

Q. Did you find sores with pus over her body?
A. No.
Q. Did you find any flea infestation in the home?
A. No.

Bailey spoke with K.C.'s pediatrician, Dr. Steven Alley, about Tammy's allegations of vaginal irritation and physical abuse and neglect. Dr. Alley reported that he sees K.C. on a regular basis and has never noticed anything that concerned him in her vaginal area and that K.C. had gained weight since she had been with Carol. He also told the caseworker that Carol had brought K.C. in recently because her eye was swollen from a mosquito bite and that there was no evidence of bruising to the eye. He reported that K.C. had sensitive skin and that Carol had been appropriately treating her for this condition and following his recommendations. Bailey again closed the case and ruled out Tammy's allegations.

Fourth, Fifth, and Sixth Complaints: Bailey testified that Tammy filed a series of three complaints on May 19, June 14, and July 1, 2003 against Carol and Douglas. These were handled as a single investigation. These claims were all similar to previous complaints. First, Tammy alleged that K.C. was seen at the SAFE House, where her court-ordered visitations took place, with pus-filled insect bites on her legs, scalp, and all over her body, some of which were bleeding; scratch marks that appeared to have been caused by something scraping across her back from shoulder to shoulder, and underneath the scratch marks there was faint bruising; and redness in her vaginal area that was not consistent with diaper rash. She also reported that Douglas had a history of domestic violence and is violent.

In investigating these claims, Bailey spoke with Mary Nell Timmons, a supervisor at SAFE. Timmons told her that she, too, would be concerned about K.C.'s sores if K.C. were her child. She said that they looked like flea bites. She also said that the sores on K.C.'s body looked really bad and that she had noticed redness in K.C.'s diaper area. However, Timmons told Bailey that she did not think that K.C. was being abused or neglected. She also told Bailey that she was not aware of K.C having a black eye and that she did not notice anything wrong with K.C.'s eyes. Timmons said that K.C. looked healthy, not thin or malnourished.

Timmons also informed Bailey that the SAFE staff was concerned that, when she visited, Tammy was constantly taking pictures of K.C.'s vaginal area and was obsessed with what was wrong with K.C. Timmons said that Tammy had to be told to stop taking such pictures of K.C.
Bailey interviewed Carol and Douglas and observed K.C. regarding Tammy's complaints. Bailey also had K.C. medically examined for sexual abuse at the Children's Assessment Center. She testified, in detail, regarding the 30-minute to one-hour examination that was conducted on K.C.
A. Well, I've been in there a few times. They--they kind of have to pull and twist and turn the child so they can examine and look into the vaginal area and take pictures so they sometimes have to move her into awkward positions.

Q. Is she clothed or unclothed?
A. Unclothed.
Q. Totally unclothed?
A. Yes.
Q. And in that posture, then, the person doing the exam has to move her arms and legs in rigid positions for photographs?
A. Yes.
Q. And after her legs are spread apart, are photographs taken of her vaginal area?
A. Yes.
Q. And in your observations of that, how have the children reacted?
A. Usually they're very uncomfortable. Some scream. It's not a comfortable exam.
Q. Have - would it be a fair statement to say that you've observed a tremendous amount of anxiety on children when they have to undergo that exam?
A. Yes.

Bailey testified that K.C.'s examination produced no evidence of abuse.

Bailey explained to Tammy that, after investigating her claims, CPS had not found any evidence of abuse. Tammy was upset with the examination results and believed that they were incorrect. She insisted to Bailey that the doctors had not looked at K.C. in the right way to see the redness in her vaginal area. Tammy insisted that Bailey examine K.C. herself or that CPS take K.C. to another doctor. Bailey testified that it appeared Tammy wanted K.C. to be continually examined in her vaginal area until something was found and she was not concerned about the resulting trauma to K.C. Bailey testified:

Q. Did she want the child to be continually medically examined in her vaginal area?
A. That was my impression.
Q. Did she show any concern for the trauma that this would put the child through?
A. None.

On July 1, 2003, Tammy also reported that K.C.'s right leg was injured and twisted, her right knee was higher than her left knee, K.C. had difficulty walking, K.C. was crying in pain, and she was covered in mosquito bites. Bailey testified that, when she went to see K.C. at her day care, she found her running and walking in no pain, nothing appeared to be wrong with her legs, and her right knee was not higher than her left knee.

Seventh Complaint: On August 11, 2003, Tammy reported that K.C. had vaginal irritation that was not caused by diaper change or diaper rash and that she had witnesses to this fact. She also reported that K.C.'s vagina was bright red internally and externally and that this was observed on August 9th. She stated that K.C.'s sibling had been abused by Douglas years ago and the sibling had recently made a sexual outcry to a therapist and that CPS had ordered Douglas to have no contact with K.C.'s sibling; K.C. is not able to communicate with people; K.C is showing signs of frustrated behavior; and K.C. has fluid trapped between her knees because of an old knee injury, and it is unknown if she has received any treatment. After speaking with Rita McKinley, a director at K.C.'s day care, and K.C.'s guardian ad litem, the case was administratively closed without a physical examination of K.C.

Eighth Complaint: Tammy reported on October 4, 2003 that K.C. had an irritation in her vaginal and rectal areas. Tammy reported that K.C. had bruises on her calves, she was running a fever of 102 degrees, and her legs were misaligned because of an injury. Tammy also reported that K.C. had sores for the past few weeks that appeared to be getting worse, and it was unknown if Carol had taken K.C. to have them treated. After speaking with K.C.'s guardian ad litem, a supervisor at SAFE, and a representative of K.C.'s day care, CPS administratively closed the file on Tammy's complaint without further investigation.
Bailey testified that it was CPS's position that K.C. is a healthy child and that Tammy was notified that CPS's investigations into her reports found no evidence of physical or sexual abuse.

b. Carol Whitworth

During the divorce trial, Carol testified about the effects of Tammy's claims of abuse on K.C. She stated that, in response to the five complaints in which CPS came out to her home, she had to present K.C. to be examined by the CPS case worker, the guardian ad litem, and then Dr. Alley for abuse. She testified that the process had been physically and emotionally stressful to K.C. Carol testified that it was horrible for K.C. to go through the investigations and that she had to comfort her and let her know that she was being loved and cared for. She testified that K.C. was stressed and not happy with the process, and Carol testified that she believed that the investigations exacerbated K.C.'s outbreak of eczema.

c. Bob Wooten

Bob Wooten, a captain with the Precinct 3 Constable's office, testified at the divorce trial that he received three calls from Tammy requesting that he go to Carol's house and conduct a child welfare check on K.C. After the first call, he went to Carol's home, but did not find anyone home. He testified that, after the second call, he went and observed K.C. and found nothing wrong with her. He testified that, in the third call, Tammy told him to check on K.C.'s fever. He testified that he went to Carol's home and found nothing wrong with K.C. (5)

d. Marietta Walker

Marietta Walker, the director of the day care that K.C. has attended almost every day since 2003, testified at the divorce trial that she has never seen K.C. with oozing sores or sores that were oozing pus or blood, an injury to her legs that caused her legs to be misaligned or disfigured, or a black eye that was swollen shut that made her look like she had been punched in the face. She also testified that, during K.C.'s diaper changes, neither she nor her staff had seen a vaginal rash that was excessive beyond diaper rash. She testified that, had she seen any of those things, she would have reported it to the Texas Protective and Regulatory System.

e. Dr. Steven Alley

During the divorce trial, Dr. Steven Alley, K.C.'s pediatrician, testified that he saw K.C. for the first time several days after Carol was given temporary custody. Dr. Alley testified that, when he first saw her, K.C. had a severe eczema skin condition. He testified that the condition could have been there for longer than several days, and it "was not something that had come up overnight." He testified that Carol followed his instructions on caring for K.C.'s eczema. (6) Dr. Alley testified that he saw K.C. in his office at least a couple of times a month for the past year and that he saw no evidence of the alleged abuse reported by Tammy. Dr. Alley testified as follows:

Q. So, you have seen this child numerous times?
A. Correct.
Q. Have you seen any indication of malnutrition in this child?
A. No.
Q. Have you ever seen an excessive bruising on this child?
A. No.
Q. Have you ever - and I may not say this right. Have you ever seen any excessive vaginal rashes on this child?
A. No.

Dr. Alley also testified that he did not observe K.C.'s legs to be bent and twisted, and he did not observe her covered with scars or sores filled with pus and blood. He testified that he saw K.C. with only the typical amount of mosquito bites on her extremities for a child her age. He also testified that he once treated K.C. for vaginitis which cleared up quickly with the use of antibiotics.

f. Tammy Whitworth

Tammy testified at the divorce trial that she still believes that Douglas abused K.C. and that CPS did not inform her of the results of its investigations. Tammy insists that, to her knowledge, the numerous CPS investigations into her reports were "inconclusive" as to whether abuse occurred. Tammy testified as follows:

Q. Can you tell me how many investigations have been done since this case has started through CPS?
A. No, I couldn't tell you, I don't know.
. . .
Q. And there has [sic] been quite a few, though haven't there?
A. I believe so, yes.
Q. And there's not been one positive finding yet, has there?
A. To my knowledge, they've been inconclusive.
THE COURT: I'm sorry what?

A. They have been inconclusive, to my knowledge.

Tammy testified that she also reported to CPS that Douglas had molested A.C., K.C.'s half sister. She testified that A.C. was interviewed at the Children's Assessment Center and the workers there wanted to perform a gynecological examination of A.C. for evidence of abuse. Tammy told them that an examination had already been performed and that she would provide CPS and the Assessment Center with the results. Tammy testified that she never provided the results to the Assessment Center nor did she provide those records to Jane Markley, A.C.'s therapist. Tammy testified that the result of the CPS investigation into her allegations regarding A.C. was "inconclusive."

Tammy violated the trial court's order to stop taking pictures of K.C. during SAFE visitations and was held in contempt after the court found that, on three separate occasions, she had violated the court's order regarding approaching Carol. Tammy admitted that, at the time that she made her reports to CPS and the constable's office, she was under a court order to contact the guardian ad litem before making any reports to an investigating agency and that she disregarded that order.

g. Dr. Edward Silverman

Dr. Edward Silverman was appointed by the trial court to examine Tammy, Douglas, and Carol. Dr. Silverman testified that, even after learning of Tammy's history of claims to CPS and repeated violations of the trial court's orders, he still recommended that she be given managing conservatorship. However, he admitted that learning about Tammy's history "absolutely" makes him less confident in his recommendation and more concerned about the issues those facts raise. Dr. Silverman testified as follows:

Q. Assume with me, Dr. Silverman, that you had at your disposal all of the information regarding the CPS referrals by [Tammy], the validation - the invalidation - pardon me - of those referrals by CPS, violation of this Court's order repeatedly in any number of ways, would that have made any differences at all in your ultimate recommendation about custody?
A. Well, I would have to say probably no in the sense that I have that information now and it would be incumbent upon me to change my recommendation if I felt that was warranted. Does it make me less confident in my recommendation and more concerned about these issues that those facts raise? Absolutely.
(Emphasis added.)

Dr. Silverman testified that, in his opinion, Tammy was not intentionally fabricating allegations of abuse by Douglas. He stated that, if he believed that she was intentionally fabricating the allegations, his recommendation regarding conservatorship would be different. He testified that Tammy's beliefs of abuse and conduct with respect to Douglas are reasonable and understandable in light of the "great deal of support and validation" she received from SAFE representatives and Jane Markley. (7) He testified that, in his opinion, Tammy's numerous CPS reports were made out of concern for K.C.

Based on her personality test results, Dr. Silverman testified that Tammy has "very significant emotional problems" and is "prone to hyperbole and exaggeration and this further erodes her credibility and trustworthiness with others. At times, if the end justifies the means, she may even be more blatantly deceptive and manipulative." (Emphasis added.) As Dr. Silverman concluded, "And, again those are the sort of things that make it difficult - difficult for someone to trust what she says about a lot of different things." Dr. Silverman's testimony and report of his examination of Tammy's personality traits provided the trial court with a reasonable basis to disbelieve Tammy's allegations of abuse and testimony in this case.

The record contains repeated examples of the type of deceptive and manipulative behavior described by Dr. Silverman. At the divorce trial Tammy was evasive regarding her reports of abuse, and she changed her testimony when she thought that it was in her best interest to do so. For example, on direct examination regarding her reports to CPS of sores all over K.C.'s body, Tammy testified that, prior to Carol receiving temporary managing conservatorship of her, K.C. did not have any skin problems other than three mosquito bites. When confronted with Dr. Bowman's medical records indicating that K.C. had a "rash all over body" while in Tammy's care, Tammy explained that K.C. had an allergic reaction, but she had "never been diagnosed with a skin condition." After she was accused of playing word games, Tammy testified, "Well, it's a skin problem, but not diagnosed as eczema or impetigo like has been suggested." She further acknowledged that Dr. Bowman's notes were in direct contradiction to her testimony in court that K.C. had only a few mosquito bites while in her care. (8) She ultimately admitted that Dr. Bowman's notes reflected a diagnosis of impetigo and diaper rash, seven days before K.C. was released by the court into the custody of Carol.

Dr. Silverman testified that there were things about Tammy's personality and the way she has presented herself that would make it reasonable for the trial court to conclude that she was capable of fabricating allegations in this case:

Q. But if it was in her benefit to make these allegations against Doug, she would persist in those particular items, wouldn't she? Isn't that her nature?
A. What allegations are you referring to?
Q. Say the sexual allegations. If it was to her benefit to make those allegations, she would persist in those would she not?
A. I couldn't answer that with certainty. If you're asking me whether I think that she's fabricated these allegations about [K.C.'s older sister], that wasn't my conclusion. And if it had been my conclusion then my recommendation would be very different.
If you ask me whether there are things about her personality and the way that she has presented herself that would make one think that she may be capable of doing that, I would say that would be a reasonable conclusion for someone to think that she might be capable of doing that.
(Emphasis added.)

When asked to confirm his position regarding the allegations of abuse, Dr. Silverman testified that he did not think that Douglas was a sexual predator. Dr. Silverman testified as follows:
Q. Okay in your recommendation, sir, just with respect to Doug, you've recommended that he be given visitation without supervision; is that correct?
A. That's correct.
Q. Would you, sir, give him that kind of recommendation if you, in fact, thought he was a sexual predator?
A. No.

Dr. Silverman's testimony did not give the trial court any reason to conclude that Tammy would, in fact, change her belief that Douglas was abusing her children and stop reporting him to authorities. Dr. Silverman testified from his report that, once Tammy reaches a conclusion about something important to her, she tends to hold on to this conclusion quite rigidly even in the face of contradictory information. (9) When responding to a question about whether there was ever anything really wrong with K.C., Dr. Silverman also testified that "ultimately, again even if she is the most well-intended mom on earth who is not being deceitful even for a second, if she continues to always perceive her child as unhealthy, that in and of itself would be detrimental to [K.C.]."

h. Dr. Sharon Hunt

Finally, the trial court heard evidence from Dr. Sharon Hunt, another court-appointed psychologist who examined Carol and K.C. She testified that, if in response to CPS complaints, a child is repeatedly subjected to interviews for abuse and made to remove her clothes for repeated examinations for abuse, the child's emotional development would be significantly impaired. She also testified that, if a parent who has custody continues to make unsupported claims of abuse by temporary caregivers, a child's emotional development would be impaired and that this would interfere with the child's development of a relationship with the temporary caregivers.

The trial court heard voluminous testimony regarding Tammy's history of subjecting K.C. to repeated investigations for unsubstantiated claims of abuse and her likelihood to continue doing so, thus significantly impairing K.C.'s emotional health. It also heard testimony that Tammy had a history of denying K.C. any contact with her biological father and her likelihood to continue doing so, thus significantly impairing K.C.'s emotional health.

2. History of denying K.C. contact with her biological father

During the divorce trial, the trial court heard evidence that, while she had custody of K.C., Tammy repeatedly violated the trial court's visitation orders, denying K.C. access to her father. The trial court heard testimony, disputed by Tammy, that, over the course of one year, Tammy did not allow Douglas access in 82 out of 85 court-ordered visitations. The record reflects that, after "multiple warnings," the trial court sentenced her to 10 days in jail for "continuous parental alienation against father through repeated visitation/access denials and behavior in court." Based on her behavior to the trial court, the court also deemed Tammy a flight risk with K.C. The trial court heard testimony that, as a result of Tammy's conduct, K.C. was prevented from bonding with her father.

Despite this conduct, Tammy testified that it was in K.C.'s best interest to have a good relationship with Douglas and Carol. She testified that, if she were awarded managing conservatorship, she would not "take off" with K.C. and hide her at a relative's house. She testified that, although she had violated a number of the trial court's orders, once the trial was over, she would follow the court's orders.

Tammy testified regarding her history of noncompliance with the trial court's orders. Tammy admitted that she was held in contempt for violating the court orders concerning K.C.'s visitation with Douglas, presenting K.C. for court hearings, and for her demeanor in the courtroom. Tammy testified that the trial court found her in contempt because she did not have legal representation to present her side of the case.

Dr. Silverman testified that he believed that Tammy would comply with future court orders concerning visitation with Douglas. However, when confronted with evidence of Tammy's significant history of noncompliance and his own prior testimony that the past conduct typically is a strong predictor of future behavior, he considerably qualified his testimony on this issue. Dr. Silverman testified as follows:

Q. Okay. Would you agree with me that there is a significant history of noncompliance with the Court's orders?
A. Yes.
Q. And is the past not typically a strong predictor of future behavior?
A. Often it is, yes.
Q. Why in the world, then, would we believe that during the pendency of a lawsuit [Tammy] would violate a court order over and over and over again when the custody of her child was hanging in the balance, and yet, it's your belief if I understand you correctly, that if given custody of this child, she's going to follow this Court's order once she has custody of [K.C.]?
A. I mean, I think there's good reason to be skeptical of it. It's not like I'm saying I believe very strongly and I have the utmost confidence in that. I'm coming down on that side of the fence, but, however, so slightly. Some of those violations occurred prior to [K.C.] being taken away -
Q. Yes, they did.
A. - and I think that that - sort of her perception of what could happen to her was probably a lot different then than afterwards. As far as a lot of the violations that you've talked about, I haven't had any opportunity to talk to her about what her thinking was and what - how she would explain her awareness of whether she felt that would jeopardize her ability to have [K.C.] or not.
I mean, there's no question that - that - that those violations were - were, in my opinion, self-destructive. And there's also no question that I think any reasonable person would have to wonder whether she's going to be able to conform to the requirements of the Court in the future.
(Emphasis added.) Finally, when asked about the impact to a child from being deprived of her father, Dr. Silverman responded that, "And again, not having a relationship with one's father, I think, significantly impairs one's emotional development."

Based on our review of the evidence, we conclude that the trial court did not abuse its discretion in appointing Carol as the sole managing conservator after finding, by a preponderance of credible evidence, that appointing Tammy as a managing conservator would result in serious physical or emotional harm to K.C. See Brook, 881 S.W.2d at 298. We also hold that the trial court did not abuse its discretion in awarding Tammy less than standard possession. (10)
We overrule Tammy's first and second issues.


We affirm the judgment of the trial court. All outstanding motions are denied as moot.

George C. Hanks, Jr.
Panel consists of Justices Nuchia, Keyes, and Hanks.
Justice Keyes, dissenting.

1. Tammy has two other children, A.C. and J.C., who are from different fathers.
2. We asked the parties to file supplemental briefs addressing standing.
3. The dissent apparently argues that, under the holding in Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054 (2000), it would be unconstitutional for the trial court to allow Carol to intervene under section 102.004(b). Troxel involved the constitutionality of a grandparent visitation statute that allowed any person to petition the court for visitation rights at any time and allowed the court to grant such rights based on the best interest of the child. Id. at 60, 120 S. Ct. at 2057. The Supreme Court held that the statute was unconstitutional because it infringed on a parent's fundamental right to make decisions concerning the care, custody, and control of her children. Id. at 72, 120 S. Ct. at 2063. Troxel does not, however, affect the issue of establishing standing to intervene in an ongoing suit affecting the parent-child relationship presented by the case before us. In this case, section 102.004(b) does not interfere with a parent's right to make decisions concerning her children. As shown below, before Carol could be awarded managing conservatorship, she was still required to overcome the strong parental presumption in favor of Tammy in a trial on the merits. See, e.g., In re SSJ-J, 153 S.W.3d 132, 138 (Tex. App.--San Antonio 2004, no pet.) (holding that Troxel opinion did not affect issue of grandparent standing because Texas Family Code standing statute does not overrule parental presumption). As courts have repeatedly held, standing to intervene means only the right to be heard, not the right to win. Id.
4. Although Tammy admits that she made similar reports of abuse to CPS, she denied making a report on this date. The trial court disagreed and made a contrary finding.
5. Tammy also testified that another officer, Constable Edmundson, did a welfare check on K.C. and found nothing wrong with her as well.
6. Carol testified that K.C. had eczema when Carol was first given temporary custody.
7. Dr. Silverman spoke to Markley and Jamie Frank, the director of SAFE, by telephone and included a summary of his conversation with them in his report. Neither Markley nor anyone from SAFE testified at trial nor were their records regarding K.C. submitted to the trial court for review.
8. In addition to playing these "word games," Tammy was evasive when she was questioned about whether she influenced K.C.'s half-sister into making an "outcry" of abuse against Douglas by repeatedly discussing her alleged abuse in front of her.
9. As an example of this behavior, Dr. Silverman testified that Tammy believes Douglas to be the biological father of A.C., despite a DNA test that states that he is not the father. Tammy stated to Dr. Silverman that it was her belief that the DNA test was inaccurate because milk products can cause bacteria that invalidate the results of a DNA test.
10. Tammy also argues that the trial court's action violated her rights to due process under the United States Constitution. However, Tammy did not assert any constitutional claim before the trial court and she has not preserved this issue for appeal. See Tex. R. App. P. 33.1. s than standard possession."

Zavala v. Zavala (Tex.App.- Houston 2007)

Paul Zavala v. Evelyn Zavala (Tex.App.- Houston [14th Dist.] May 31, 2007)(Guzman)(property division based on stipulation)
14-06-00081-CV; Appeal from 246th District Court of Harris County


This is an appeal from a final decree of divorce awarding the equity in the couple's marital home to appellee, Evelyn Zavala. The trial court based its award on the parties' stipulation, and appellant Paul Zavala contends the award is erroneous because his trial attorney lacked authority to consent to the division of the equity. We affirm.

I. Factual and Procedural Background

Paul Zavala filed a suit for divorce from his wife Evelyn Zavala. Evelyn answered and filed a counter-petition. When the case was called for trial, the trial court heard preliminary stipulations from the parties' attorneys regarding the division of the assets of the marital estate. The transcript reflects the following exchange that is pertinent to this appeal:

Court: And if we have any preliminary stipulation[s], gentlemen.
Evelyn's attorney: We do, Your Honor.
Paul's attorney: We do, Judge.
Evelyn's attorney: May I?
Court: Mr. Baughman.
Evelyn's attorney: We have agreed on the division of the property. House will be awarded to the wife, 100 percent, subject to the debt. She is to take her retirement up to $9,500. Anything over $9,500 will be split 50/50 between the parties. He is to be awarded, he being Mr. Zavala, first $34,000 in his retirement plan and anything over $34,000 will be split 50/50. He represents that he has approximately $60,000 and is not participating in the drop program.
Wife will be awarded the Ford F‑150 pickup truck and the Harley Davidson motorcycle subject to the debt. Husband is awarded the 87 pickup truck and the ‑ ‑ can I call my client?

Court: Sure. Bring your clients up.
Evelyn's attorney: She gets ‑ ‑ you get the F‑150 ‑ ‑
Evelyn: Yes.
Evelyn's attorney: ‑ ‑ the Crown Vic and the Harley. He gets the 87 pickup truck; is that correct?
Evelyn: Yes.
Evelyn's attorney: He gets the big screen TV; and they are to divide their annuities, if any, 50/50. If she defaults 30 days on the payment of that Harley motorcycle payment, Judge, then Mr. Zavala has the right to repossess that and make those payments. Each will take the property in their possession. Husband had some rings.
She is [sic] agreed to turn those over when she finds them but makes no representation ‑ ‑ as a matter of fact, you are saying you don=t have them?
Evelyn: No, I have not.
Evelyn's attorney: But if you do find them, you will be glad to turn them over?
Respondent: Right.
Evelyn's attorney: I think that's it, isn't it?
Paul's attorney: Yes.
Evelyn's attorney: Can I ask her ‑ ‑
Court: Yes.
Evelyn's attorney: Ma'am, you heard that stipulation. That is your agreement?
Evelyn: Yes, sir.
Evelyn's attorney: Do you have any questions about that?
Evelyn: No, sir.
Paul's attorney: That is your agreement, Mr. Zavala?
Paul: Yes, sir.

The trial court then stated on the record, "That agreement is approved by the Court, and that leaves our issues to the conservatorship [of the children]." Following the trial court's approval of these stipulations, a jury was selected and trial began on the conservatorship issues. Evelyn's attorney cross‑examined Paul during the trial, on the same day the stipulations were read into the record. The following is an excerpt from the trial transcript: Evelyn's attorney: So the jury has a better idea, the house is going to go to your wife; isn't that true?

Paul: She wants it, yes.
Evelyn's attorney: Mr. Zavala, you stipulated to that before the jury came in that she would get the house, lock, stock, and barrel; isn't that correct?
Paul: I don't recall lock, stock, and barrel. I believe ‑ ‑
Evelyn's attorney: 100 percent?
Paul: Other than me getting my equity out of there, yes.
Evelyn's attorney: There wasn't any mention in the stipulation about any equity in the house, was there?
Paul: I was under the impression that there was.
Evelyn's attorney: You approached the Bench with your lawyer about two hours ago, at 1:30, and indicated that you had an agreement for the division of the property; isn't that correct?
Paul: Yes.
Evelyn's attorney: And the agreement that was recited in the record is that the house went to your wife, 100 percent; isn't that correct?
Paul: Well, I knew she wanted to get ‑ ‑
Evelyn's attorney: Nonresponsive, Judge.
Paul: I was misinformed because I thought I was going to get my equity out of the house.
Evelyn's attorney: You understand that the Judge accepted your stipulation?
Paul: Yes.
Evelyn's attorney: You understand your lawyer asked you if that was your agreement?
Paul: Yes, and --
Evelyn's attorney: And he asked you if you understood it fully and completely, didn't he?
Paul: Yes, sir, he did.

On the second day of trial, the jury returned a verdict on the conservatorship issues, which the trial court accepted. In due course, the court rendered its final decree of divorce. As is pertinent to this appeal, the decree awarded the marital home to Evelyn and imposed on Evelyn the debt associated with the home. The decree makes no direct reference to the equity in the home. But, by awarding to Evelyn, and divesting Paul of, "all right, title, interest and claim in and to" the marital real estate and home, the decree effectively awards the equity to Evelyn.
Paul moved for a new trial; the motion was overruled by operation of law and this appeal ensued.[1]

II. Issue Presented

Paul's sole issue on appeal is Awhether the husband's trial counsel possessed the requisite authority to compromise the husband's legal rights by entering into a stipulation with the wife's counsel concerning the division of the marital home . . . ."

III. Standard of Review

The trial court's Adecision whether a settlement agreement should be enforced as an agreed judgment or must be the subject of a contract action requiring additional pleadings and proof is subject to the abuse of discretion standard of review." Staley v. Herblin, 188 S.W.3d 334, 336 (Tex. App.-Dallas 2006, pet. denied) (citing Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 659 (Tex. 1996)). Because a trial court has no discretion in determining what the law is or in applying the law to the facts, a trial court's failure to analyze or apply the law correctly is an abuse of discretion. In re Am. Homestar of Lancaster, Inc., 50 S.W.3d 480, 483 (Tex. 2001); Appleton v. Appleton, 76 S.W.3d 78, 86 (Tex. App.-Houston [14th Dist.] 2002, no pet.).

IV. Analysis

Section 7.006 of the Texas Family Code provides:

(a) To promote amicable settlement of disputes in a suit for divorce or annulment, the spouses may enter into a written agreement concerning the division of the property and the liabilities of the spouses and maintenance of either spouse. The agreement may be revised or repudiated before rendition of the divorce or annulment unless the agreement is binding under another rule of law.

(b) If the court finds that the terms of the written agreement in a divorce or annulment are just and right, those terms are binding on the court. If the court approves the agreement, the court may set forth the agreement in full or incorporate the agreement by reference in the final decree.

Tex. Fam. Code ' 7.006(a) & (b) (Vernon 2006). Although the statute references a written agreement, an oral agreement that is read into the record in open court satisfies the provision. McLendon v. McLendon, 847 S.W.2d 601, 606B07 (Tex. App.CDallas 1992, writ denied).
On appeal, Paul contends the trial court erred because its judgment is based on a stipulation that his attorney was not authorized to make. As noted, Paul argues in his sole issue that his trial counsel did not possess the requisite authority to enter into a stipulation with his wife's counsel concerning the division of the equity in the marital home.[2]

Paul faces two problems. First, he did not apprise the trial court of any claim that his counsel had acted beyond the bounds of his authority. Although he became aware during cross-examination that the pretrial stipulation was being construed as addressing the division of equity in the marital home, Paul raised no issue during the three month period between trial and rendition of judgment regarding his attorney's purported lack of authority to agree to any such division. Further, even in his motion for new trial in which he was represented by new counsel, Paul did not complain that his original attorney lacked authority to enter into the stipulation on which the trial court based its award to Evelyn of equity in the marital home. By failing to alert the trial court to the contention that his attorney was not authorized to make a stipulation concerning the division of equity, Paul has waived that argument for purposes of appeal. See Tex. R. App. P. 33.1(a).

Second, Paul personally consented to the stipulation on the record. Paul discounts his action by claiming he did not hear the portion of the stipulation concerning the marital home, but the record shows Paul was present when the attorneys approached the bench to make preliminary stipulations. During the stipulations, Paul and Evelyn were called to the bench to clarify Evelyn's attorney's understanding of the disposition of certain motor vehicles. Evelyn's attorney continued to recite the stipulations for the record, and ultimately each party to the divorce was asked if he or she agreed to the stated stipulations. Paul answered affirmatively, without qualification or question.

In Paul's motion for new trial and in his appellate briefing, we glean an argument that his cross-examination testimony constitutes revocation of consent to the stipulation as it concerns equity in the marital home. An agreed judgment may not be entered where consent to the agreement has been revoked or withdrawn. Quintero v. Jim Walter Homes, Inc., 654 S.W.2d 442, 444 (Tex. 1983); Burnaman v. Heaton, 150 Tex. 333, 240 S.W.2d 288, 291 (1951); Farr v. McKinzie, 477 S.W.2d 672, 676 (Tex. Civ. App.-Houston [14th Dist.] 1972, writ ref'd n.r.e.). But if such revocation or withdrawal of consent is not effectively communicated to the court, a judgment entered in accordance with the agreement will stand. See First Heights Bank, FSB v. Marom, 934 S.W.2d 843, 845 (Tex. App.-Houston [14th Dist.] 1996, no writ); see also Trevathan v. Akins, 712 S.W.2d 559, 560 (Tex. App.-Houston [1st Dist.] 1986, no writ) ("When a trial court has knowledge that one of the parties does not consent to a judgment, the trial court should refuse to . . . make it the judgment of the court.") (emphasis added); Sohocki v. Sohocki, 897 S.W.2d 422, 424 (Tex. App.-Corpus Christi 1995, no writ) ("The proper inquiry is whether the information in the trial court's possession is clearly sufficient and of such a nature as to put the court on notice that a party's consent is lacking and to require the court to make further inquiry before rendering judgment.").

Viewed in context, Paul's cross-examination testimony does not constitute effective revocation of consent. At most, Paul's testimony suggests that he had not considered division of the equity or did not perceive that an agreement had been reached as to the equity. At the same time, however, Paul confirmed his earlier agreement to the stipulation that awarded the home to Evelyn "100 percent, subject to the debt."

While Paul's confirmation of his agreement to the stipulation may have been the product of leading questions posed by Evelyn's attorney, Paul made no effort in his re-direct or rebuttal testimony to re-urge an objection to division of the equity. Furthermore, between the date of trial and the trial court's rendition of judgment, Paul filed no pleadings or documents affirmatively revoking consent to the stipulation or to the division of equity pursuant to that stipulation. See, e.g., Sone v. Bartley, 608 S.W.2d 240, 242 (Tex. App.-San Antonio 1980, no writ) (court erred in rendering agreed judgment when plaintiff had filed letters objecting to the purported settlement agreement, paid jury fee, and requested case be set for trial on jury docket). Under these circumstances, we cannot say the trial court abused its discretion by entering judgment based on the stipulation. See Dodson v. Seymour, 664 S.W.2d 158, 161 (Tex. App.-San Antonio 1983, no writ).


For the reasons set forth above, we affirm the trial court's judgment.

Eva M. Guzman

Judgment rendered and Memorandum Opinion filed May 31, 2007.
Panel consists of Justices Frost, Seymore, and Guzman.

[1] In a reply point, Evelyn asserts that this appeal should be dismissed because Paul's acceptance of benefits under the trial court=s judgment estops him from seeking reversal of that judgment. See Carle v. Carle, 149 Tex. 469, 472, 234 S.W.2d 1002, 1004 (1950) ("A litigant cannot treat a judgment as both right and wrong, and if he has voluntarily accepted the benefits of a judgment, he cannot afterward prosecute an appeal therefrom."). While we acknowledge the rule pronounced in Carle and its progeny, we have not been presented with relevant facts demonstrating Paul's voluntary acceptance of benefits of the judgment. See Rogers v. Rogers, 806 S.W.2d 886, 889B90 (Tex. App.-Corpus Christi 1991, no writ) (no basis for dismissal of appeal where appellee failed to file motion with supporting affidavits showing appellant's acceptance of specific benefits under judgment); Miller v. Miller, 569 S.W.2d 592, 593 (Tex. Civ. App.-San Antonio 1978, no writ) (denying motion to dismiss appeal where record contained no evidence of acceptance of any benefits under the judgment). Therefore, we deny Evelyn=s request for dismissal of this appeal.

[2] Paul does not allege that his consent to the stipulation was procured by fraud. Cf. Salinas v. Beaudrie, 960 S.W.2d 314, 320 (Tex. App.-Corpus Christi 1997, no pet.) (where party's false representations induce another party to contract, second party's failure to read contract will not bar equitable relief of enforcement against fraudulent party).

Chisholm v. Chisholm (Tex. 2006)

Qi Wu Chisholm v. Gary Bryce Chisholm, No. 05-0996 (Tex. Dec. 1, 2006)(per curiam)(divorce, property division, agreement as basis for judgment)

Was decree based on agreement of both parties?

On Petition for Review from the
Court of Appeals for the Fourth District of Texas


In this divorce case, petitioner Qi Wu Chisholm complains that the trial court, after a bench trial, rendered judgment based on an alleged agreement between the parties to which she had not consented. The only issue before us is whether Ms. Chisholm agreed to the property division in the judgment.

When the case was called for trial, counsel for respondent Gary Bruce Chisholm recited into the record what she said was the parties’ agreement, containing terms on custody of the parties’ minor child and the division of property. Counsel then tendered an exhibit she described as “the division of the personal property that the clients have approved.” The exhibit listed pre-marital household items and items acquired after marriage to be divided to either Mr. or Ms. Chisholm. Without objection by Ms. Chisholm’s attorney, the court received the exhibit in evidence.

Almost immediately, Ms. Chisholm, whose ability to speak and understand English is disputed, stated that she didn’t understand what had been read into the record. Testifying with the occasional aid of an interpreter, Ms. Chisholm acknowledged that she and Mr. Chisholm had reached an agreement on custody, but said they had only discussed, not decided, everything else. After further questioning, she appeared to assent to the sale of the marital residence, but when asked if she understood the agreement, still maintained she did not. Although there was further discussion between the attorneys, the parties, and the court on other portions of the agreement, Ms. Chisholm was never asked whether she understood or consented to the agreement as a whole. No other evidence was admitted.

After Mr. Chisholm moved for a final decree, stating that “the parties [had] read an agreement into the record for full and final settlement of all issues in this case,” the trial court rendered a judgment containing most but not all of the recited terms, as well as additional terms never discussed at trial, such as the division of tax liability.

The court of appeals affirmed, concluding that “despite Ms. Chisholm’s statements indicating a lack of understanding during the proceeding, she participated with her attorney in reaching the agreement and understood it sufficiently for the trial court to enter a judgment.” ___ S.W.3d ___, ___. We disagree.

Even if Ms. Chisholm consented to the custody arrangements and the sale of the marital residence, nothing in the record shows she consented to the property division. A court “cannot render a valid agreed judgment absent consent at the time it is rendered.” Padilla v. LaFrance, 907 S.W.2d 454, 461-62 (Tex. 1995); see also Mantas v. Fifth Court of Appeals, 925 S.W.2d 656, 658 (Tex. 1996) (per curiam). Moreover, the judgment was not “in strict or literal compliance" with the terms recited into the record; the judgment improperly removed and added material terms. Vickery v. Am. Youth Camps, Inc., 532 S.W.2d 292, 292 (Tex. 1976) (per curiam); see also Matthews v. Looney, 123 S.W.2d 871, 872 (Tex. 1939).

When a consent judgment is rendered without consent or is not in strict compliance with the terms of the agreement, the judgment must be set aside. See Burnaman v. Heaton, 240 S.W.2d 288, 291-292 (Tex. 1951).

Mr. Chisholm argues in his brief in this Court:

While certainly not a work of art, the court’s proceedings were very typical of family law cases in Bexar County, Texas where there is a hodge podge of agreements recited into the record and various orders entered by the court to resolve disputes between the parties. The record ultimately shows that the order was not based purely on the agreement of the parties, rather the decree consisted of part agreement, part orders from the court which were incorporated into the composition of the parties’ decree of divorce.

Whether the characterization of practice is accurate, there was no basis in this case for the trial court to make the findings necessary to divide the marital estate and render final judgment.
Accordingly, we grant Ms. Chisholm’s petition for review and, without hearing oral argument, Tex. R. App. P. 59.1, reverse the court of appeals’ judgment and remand the case to the trial court for further proceedings.

Opinion delivered: December 1, 2006

In re Schoelpple (Tex.App.-Houston 2007)

In re Schoelpple (Tex.App.- Houston [14th Dist.] Feb. 13, 2007)(per curiam)(grandparent access, intervention)

What is SAPCR?
Does nonsuit by parent(s) terminate nonparent intervention, or may suit for access proceed?



On November 30, 2006, relator Cindy Schoelpple filed a petition for writ of mandamus in this court, requesting we compel respondent, the Honorable James Squier, presiding judge of the 312th District Court, Harris County, Texas, to vacate an order granting grandparent access, signed on July 14, 2005. See Tex. Gov't Code Ann. ' 22.221 (Vernon 2004); see also Tex. R. App. P. 52.1. For the reasons set forth below, we deny relator's petition.


Relator filed a divorce action in Harris County on June 24, 2004, which included a request for custody of, and support for, her daughter. On October 22, 2004, real party James Schoelpple, the child's maternal grandfather, filed an "Original Petition in Intervention of Grandparent for Conservatorship and Petition for Grandparent's Access," requesting appointment as possessory conservator and possession of and access to the child. On November 15, 2004, relator and her then-husband, David Mora, filed notices of nonsuit, stating they were attempting to reconcile. The trial court signed a dismissal order as to the divorce petition shortly thereafter. On June 15, 2005, relator filed a divorce action in Cherokee County,[1] but did not disclose the Harris County suit.

Following the nonsuit, the Harris County court proceeded on real party's petition. A trial was conducted[2] and, on July 14, 2005, an agreed order was entered, granting real party access to the child ("agreed access order").[3] Real party subsequently filed a motion to enforce the agreed access order in the Harris County court, and relator filed a motion to dismiss for want of jurisdiction. Respondent signed an order denying relator's motion to dismiss on October 27, 2006, and relator challenges that order in this mandamus proceeding.[4]


In her mandamus petition, relator argues the agreed access order is void, contending that when she and Mora nonsuited the divorce action, there was no longer a suit in which real party could intervene. She asks this court to compel respondent to dismiss the agreed access order as void.

Mandamus issues only to correct a clear abuse of discretion or a violation of a duty imposed by law when there is no other adequate remedy at law. See Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992) (orig. proceeding). If a court issues a void order, the relator need not show it does not have an adequate appellate remedy, and mandamus relief is appropriate. In re Southwestern Bell Tel. Co., 35 S.W.3d 602, 605 (Tex. 2000) (orig. proceeding).

A void judgment results when the trial court had (1) no jurisdiction over the parties or subject matter, (2) no jurisdiction to render the judgment, or (3) no capacity to "act as a court." Reiss v. Reiss, 118 S.W.3d 439, 443 (Tex. 2003) (citing Cook v. Cameron, 733 S.W.2d 137, 140 (Tex. 1987)); In re Sheppard, 193 S.W.3d 181, 186 (Tex. App.CHouston [1st Dist.] 2006, orig. proceeding [mand. denied]). If the court's action is contrary to a statute or statutory equivalent that is not jurisdictional, the judgment is voidable as opposed to void and is corrected through the customary appellate process. Reiss, 118 S.W.3d at 443; In re Sheppard, 193 S.W.3d at 186.

Given the procedural posture of this case and relator's argument, the issue here is whether the nonsuit divested the Harris County court of jurisdiction over real party's petition. See Reiss, 118 S.W.3d at 443; Armentor v. Kern, 178 S.W.3d 147, 149 (Tex. App.CHouston [1st Dist.] 2005, no pet.) (defining a collateral attack on a judgment).

A. Standing to Seek Access

Pursuant to the provisions in the Texas Family Code applicable to this case, a
grandparent may file an original suit affecting the parent-child relationship ("SAPCR")[5] to request access to a grandchild Awithout regard to whether the appointment of a managing conservator is an issue in the suit.@ See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 157 (amended 2005) (current version at Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006)).[6] Section 102.004(b) provides that a grandparent cannot file an original suit seeking possessory conservatorship, but may intervene in a pending suit if certain evidence is met. See Acts of 1995, 74th Leg., R.S., ch. 20, ' 1, 1995 Tex. Gen. Laws 125 (amended 2005) (current version at Tex. Fam. Code Ann. ' 102.004(b) (Vernon Supp. 2006)).[7]

In his petition, real party sought both possessory conservatorship under section 102.004 and access under section 153.432, thus utilizing the two methods available under the Family Code to obtain access to his grandchild. See id. '' 102.004(b), 153.432; see also In re C.M.C., 192 S.W.3d 866, 871 n.6 (Tex. App.CTexarkana 2006) (noting grandparents have several methods available to obtain access to grandchildren under Texas's Family Code).

Consequently, even assuming without deciding that real party's intervention in the pending divorce suit was negated by the nonsuit--which requires a further assumption that the request for possessory conservatorship is not a request for affirmative relief --this does not necessitate the conclusion that real party's petition for access under section 153.432 was similarly negated. See In re D.D.M., 116 S.W.3d 224, 232 (Tex. App.-Tyler 2003, no pet.) (stating, where underlying SAPCR order was dismissed, the trial court retained jurisdiction over foster parents intervening for joint managing conservatorship because they sought independent, affirmative relief).[8]

Further, any party may intervene in a suit by filing a pleading, subject to being stricken out by the court for sufficient cause on the motion of any party. Tex. R. Civ. P. 60; In re D.D.M., 116 S.W.3d at 231. "Upon filing of the petition, an intervenor becomes a party to the suit for all purposes," and if a party is nonsuited or dismissed, a party's claim for affirmative relief is not prejudiced. In re D.D.M., 116 S.W.3d at 231. A claim for affirmative relief is one that allows the intervenor to recover relief despite plaintiff's abandonment or failure to establish a claim. Id. at 232. Section 153.432 expressly allows a grandparent to seek access of a grandchild independent of a suit for managing conservatorship and, consequently, real party's request for access, as a claim for affirmative relief, survived the nonsuit. See Tex. Fam. Code Ann. ' 153.432(b); In re D.D.M., 116 S.W.3d at 231.


In sum, relator has failed to establish that she is entitled to the requested relief. Accordingly, we deny relator's petition for writ of mandamus.


Petition Denied and Memorandum Opinion filed February 8, 2007.
Panel consists of Chief Justice Hedges and Justices Yates and Seymore.

[1]A final divorce decree was signed by the Cherokee County court on June 7, 2006.

[2]This court was not furnished with a copy of the transcript from the trial.

[3]The agreed access order contains the statutory notices required under section 105.006 of the Family Code, "Contents of a Final Order." See Tex. Fam. Code Ann. ' 105.006 (Vernon Supp. 2006). Further, it was entered in the case as a default judgment and states, in part, that (a) the court had jurisdiction of the case and the parties, (b) "no other court has continuing, exclusive jurisdiction," and (c) "all relief requested in this case and not expressly granted is denied."

[4]Relator also filed a motion to transfer the case to Cherokee County, which real party alleges was denied; however, relator does not challenge that ruling in this original proceeding. See Tex. Fam. Code Ann. ' 155.201 (setting out circumstances for mandatory transfer).

[5]A SAPCR is defined in the Family Code as follows: A "Suit affecting the parent‑child relationship" means a suit filed as provided by this title in which the appointment of a managing conservator or a possessory conservator, access to or support of a child, or establishment or termination of the parent‑child relationship is requested." Id. ' 101.032(a) (Vernon 2002) (emphasis added).

[6]Section 153.432 was amended effective September 1, 2005 to permit a grandparent to file an original suit to request "possession of" or access to a grandchild. See Tex. Fam. Code Ann. ' 153.432 (Vernon Supp. 2006). The previous version of the statute applies in this case. See id.

[7]Section 102.004(b) was amended effective June 1, 2005; the amendments apply to original suits filed on that date or thereafter. See ' 102.004 historical note (Vernon Supp. 2006). The previous version of the statute applies to this case.

[8]In support of her argument, relator relies on two cases dealing with the death of a spouse during a pending divorce. See Griggs v. Latham, 98 S.W.3d 382 (Tex. App.-Corpus Christi 2003, pet. denied); Smelscer v. Smelscer, 901 S.W.2d 708 (Tex. App.-El Paso 1995, no writ). However, those cases are distinguishable because, here, relator is asserting a collateral attack on the agreed access order and our review is limited to the Harris County court"s jurisdiction to render that order. Also, although relator asserts that real party was unable to intervene and petition for access within one pleading, she did not cite, nor did we find, authority to support that statement.

In Re Ricky Derzapf (Tex. 2007)

In Re Ricky Derzapf, No. 06-0669 (Tex. Mar. 23, 2007)(per curiam)(grandparent access)

On Petition for Writ of Mandamus


In 2005, the Legislature substantially amended the grandparent access statute, codified at Family Code sections 153.432-34. The statute now includes a presumption that a parent acts in his child’s best interest, and it permits biological or adoptive grandparents to obtain court-ordered access to a grandchild only if they show that denial of access will “significantly impair the child’s physical health or emotional well-being.” Id. § 153.433(2). We conclude that the trial court abused its discretion in awarding access here because the step-grandfather is neither a biological nor an adoptive grandparent, and the grandmother did not overcome the statutory presumption favoring the children’s father. We conditionally grant mandamus relief.


Ricky and Jennifer Derzapf were married in the mid-1990s. They had two sons, B.G.D.,[1] age 15, and A.J.D., age 10, as well as one daughter, J.B.D., age 6. Jennifer died of leukemia on June 3, 2001. During the summer months immediately following Jennifer’s death, Connie and Randy Johnson helped Ricky care for the children. Connie is Jennifer’s mother and the children’s grandmother; Randy is Connie’s husband and the children’s step-grandfather. During the first few months, Connie and Randy were the children’s primary caregivers. This arrangement was necessitated by Ricky’s work schedule, especially shortly after Jennifer’s death. Initially, Ricky and the Johnsons worked cooperatively on the children’s behalf. On most nights, Ricky joined the Johnsons and his children for dinner at the Johnsons’ home.

Once the school year began, however, Ricky attempted to reassert himself as the children’s primary caregiver—especially for the two older boys. B.G.D. and A.J.D. began spending most nights at home with Ricky. Tension between Ricky and the Johnsons increased during this time. The Johnsons perceived Ricky as emotionally aloof and a negative influence on B.G.D. in particular; Ricky believed that Connie was assuming the role of mother instead of grandmother, directly undermining his influence and authority over the children.[2] Later, Ricky wanted to keep J.B.D. overnight and on weekends, but the Johnsons preferred a more gradual transition.
On May 6, 2003, Connie and Randy filed an original suit affecting the parent‑child relationship (SAPCR) seeking custody of the children and requesting that they be appointed sole managing conservators. The Johnsons alleged that Ricky endangered the children and significantly impaired their physical health and emotional development, and they obtained an ex parte temporary restraining order preventing Ricky from obtaining possession of the children. After a hearing, the trial court dissolved the temporary restraining order and returned the children to their father’s conservatorship. The trial court noted in its May 22, 2003 letter ruling:

The evidence at the temporary orders hearing was not “satisfactory proof” that the father’s home raises a serious question concerning the children’s physical health and welfare.

The main concern of the Johnsons focused on Ricky Derzapf’s “neglect” of the children, based on his allowing the children to spend so much time with their grandparents, and the services provided by Connie Johnson in taking the children to doctor and dentist visits, picking them up from school when sick, etc. I do not see this arrangement as neglectful in any way. It appears that this was a mutually agreed upon arrangement following the death of the children’s mother which has been a benefit to everyone involved — the children, the father and the grandparents. There was no testimony that the Johnsons ever objected to providing these services, or that they asked Mr. Derzapf to take on more of the responsibilities. If they had done so, I believe he would have stepped up to the plate.

The trial court held that the Johnsons, as grandparents, "lack[ed] standing to be appointed as Sole Managing Conservators or Joint Managing Conservators of the children under section 102.004(a)(1) of the Texas Family Code” because there was no evidence that Ricky’s care of the children created “serious question[s] concerning [their] physical health or welfare” as Family Code section 102.004(a) required.[3] The trial court dismissed the case without prejudice on June 4, 2003.

After the Johnsons filed the SAPCR, Ricky discontinued their access to the children. According to Ricky, over the next twelve to eighteen months the children began to heal from their depression spurred by their mother’s death and the ongoing tension between the Johnsons and him. Ricky took the children to counseling, and they have since been released from the counselor’s care because of their progress in coping with their depression, as evidenced by their social and academic success in school and by the fact that B.G.D. and A.J.D. are no longer on antidepressant medications.

Connie and Randy filed a petition for grandparent access on March 10, 2004. The trial court appointed Dr. Mark R. Otis, a psychologist, to evaluate Connie, Randy, the Johnsons’ sons,[4] Ricky, and the children and to advise the court whether the Johnsons should have access. On October 14, 2005, the trial court held an evidentiary hearing. Dr. Otis testified, and his report was admitted into evidence. The twenty-four page report, prepared after interviewing all parties, concluded:

It is my opinion that the children will benefit from renewed contact with their mother’s family. While the children have certainly benefitted from being pulled away from Connie’s untoward communications, the children’s loss of relatedness to the entire Johnson family has added to the children’s feeling of loss following their mother’s death. I have specific concern, however, that Connie is at risk to dominate contact with the children and to project her experiences inappropriately on the children, thereby undermining both Ricky’s position and the ability of other Johnson family members to relate fully to the children. Additionally, Ricky and the Johnsons have highly polarized views of the situation and one another. Their conflict is now highly intractable and will not yield easily to change.

Dr. Otis recommended family therapy for Connie, Randy, and their sons, in which the primary focus would involve family members “learning how to monitor, coach, restrain and help Connie: 1. block inappropriate communications or questions to the children about their father or faith matters, 2. respect interpersonal and family boundaries, and 3. be mindful to others’ relational needs rather than being so focused on her own.” He recommended that the children have visitation with only Randy and the Uncles, until such time as Connie’s therapist determined that she was ready to join family outings. Alternatively, he recommended that the Johnsons and the Uncles have access to the children for one full day every two months.

At the hearing, Dr. Otis testified that the children had formed attachments to the Johnsons, and it would “not be healthy to cut them off.” He testified that B.G.D. and A.J.D. had a “lingering sadness” about their lack of contact with the grandparents, but that it was “not manifested as depression or behavioral problems or acting out” and that it did not “rise to a level of significant emotional impairment.”

On February 1, 2006, the trial court signed temporary orders granting the Johnsons and the Uncles visitation[5] on Thanksgiving Day and the first Saturday of each month.[6] On July 7, 2006, the trial court issued amended temporary orders stating that: (1) Connie and Randy had standing; (2) denying access would significantly impair the children’s physical health or emotional well-being; (3) Connie and Randy, but not the Uncles, were granted visitation with the children during part of Thanksgiving day and on the first Saturday of each month and could attend the children’s extracurricular activities; and (4) the Uncles could pick up and return the children during these visits.

Ricky sought mandamus relief. After granting his motion for temporary relief and staying the trial court’s order, the court of appeals denied the mandamus petition in a per curiam memorandum opinion. __ S.W.3d __. For the reasons expressed below, we conditionally grant mandamus relief and direct the trial court to vacate its amended temporary orders of July 7, 2006.


Initially, we must determine whether Randy Johnson, the children’s step-grandfather, has standing to pursue grandparent access.[7] “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). Ricky argues that chapter 153 applies only to “biological or adoptive grandparents,” and because Randy is neither, he lacks standing to seek access. Tex. Fam. Code § 153.432(a). The Johnsons disagree, citing three reasons Randy should have standing to bring a suit for grandparent access. First, they argue that although subsection 153.432(a) states that a “biological or adoptive grandparent” may file a suit for possession or access to their grandchildren, subsection 153.432(b) refers only to “a grandparent” as opposed to a “biological or adoptive grandparent,”[8] and thus even non-biological or adoptive grandparents may seek access under subsection (b). Compare id. § 153.432(a), with id. § 153.432(b).

We disagree. Subsection (b) merely clarifies the circumstances in which a grandparent may request the possession or access described in subsection (a); it does not redefine who may seek access. “[C]ourts should not give an undefined statutory term a meaning out of harmony or inconsistent with other provisions, although it might be susceptible of such a construction if standing alone.” Texas Dep’t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). Because Randy is not a biological or an adoptive grandparent, he lacks standing to seek grandparent access under section 153.432 of the Family Code.

Second, the trial court concluded that Randy had “general” standing to file a suit for access to the grandchildren under section 102.003(a)(9) of the Family Code.[9] Randy argues that his original suit was filed on May 6, 2003, and it is undisputed that he and his wife had care, control, and possession for at least six months ending not more than ninety days before they filed suit. That suit, however, was dismissed, and Ricky argues that because the Johnsons did not file another petition until March 2004, that date should govern for purposes of determining section 102.003(a)(9) standing.

Regardless of whether Randy satisfied section 102.003(a)(9)’s general standing requirements for filing a SAPCR—an issue we do not reach—the trial court awarded access based on the standards set forth in section 153.433, the grandparent access statute. As set forth above, Randy does not meet the more specific standing requirements to pursue a claim under that section. Concluding that Randy had standing under section 102.003(a)(9) when access was granted based on chapter 153 would permit an end run around the requirements of section 153.432(a), a result the Legislature cannot have intended.[10] See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (noting “the traditional statutory construction principle that the more specific statute controls over the more general”).

Finally, the Johnsons argue that Randy has a justiciable interest sufficient to confer standing, based on In re C.T.H., 112 S.W.3d 262, 265-66 (Tex. App.–Beaumont 2003, no pet.). That case, however, did not involve the grandparent access statute but was instead a child custody dispute between the child’s parents, in which the father sought to modify a prior custody order. The maternal grandparents intervened, alleging that they had had care, control, and possession of the child for at least six months, and requesting that their daughter (the children’s mother) retain her role as “primary” joint managing conservator, and alternatively, that they be named “primary” joint managing conservators. C.T.H., 112 S.W.3d at 265. Based on the pleadings and the evidence, the trial court concluded that the grandparents had a justiciable interest in the controversy.

We face a different situation here. The grandparent access statute explicitly sets forth who may sue for access, and Randy did not meet those criteria. We cannot conclude that he has a justiciable interest in the controversy sufficient to override the statutory text permitting only biological or adoptive grandparents to seek access pursuant to the standards set forth in section 153.433. We conclude that the trial court abused its discretion in concluding that Randy had standing and in ordering that he have access to the children.


We now turn to whether the trial court abused its discretion in awarding Connie access pursuant to section 153.433. The Legislature recently amended the grandparent access statute, effective September 1, 2005, changing the requisite standard for a grandparent to obtain court-ordered access to a grandchild. Previously, the statute permitted grandparent access if it was in the “best interest of the child.” Act of Apr. 6, 1995, 74th Leg., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 157, amended by Act of May 27, 2005, 79th Leg., R.S., ch. 484, 2005 Tex. Gen. Laws 1345. As amended, section 153.433 now echoes the United States Supreme Court’s plurality opinion in Troxel, 530 U.S. at 68, that a trial court must presume that a fit parent acts in his or her child’s best interest. Tex. Fam. Code § 153.433. As we recently recognized, "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 Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, 530 U.S. at 68); see also Troxel, 530 U.S. at 72-73 (noting that the constitution “does not permit a State to infringe on the fundamental right of parents to make child rearing decisions simply because a state judge believes a ‘better decision’ could be made”).
Section 153.433(2) requires that a grandparent seeking court-ordered access overcome the presumption that a parent acts in his or her child’s best interest by proving by a preponderance of the evidence that “denial . . . of access to the child would significantly impair the child’s physical health or emotional well‑being.” Tex. Fam. Code § 153.433(2). A trial court abuses its discretion when it grants access to a grandparent who has not met this standard 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.” In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)(first alteration in original) (footnotes omitted).

To succeed on her claim then, Connie must overcome the statutory presumption that denying the children access to her in particular—not Connie and Randy jointly or the Johnson family as a whole—would significantly impair the children’s physical health or emotional well-being. Tex. Fam. Code § 153.432(2). Connie argues that unlike Mays-Hooper, there is sufficient evidence to prove that denying her access to her grandchildren would cause the grandchildren’s emotional well-being to suffer, and she urges us to consider Dr. Otis’s testimony in support of her argument.

While it is true that Dr. Otis believed the children would benefit from renewed contact with the Johnson family, he did not testify that denying Connie access to her grandchildren would significantly impair the children’s physical or emotional health. Dr. Otis’s testimony pertained either to both Connie and Randy or to the Johnson family as a whole, but his recommendations do not support renewed contact with Connie alone. To the contrary, Dr. Otis noted that Ricky had a reasonable interest in preserving “the children’s hard-won feelings of peace and security” regained after contact with Connie ceased.

Dr. Otis’s report concluded that the children should first have renewed contact with Randy, then with the Uncles and extended family, and only later with Connie. Dr. Otis testified that his recommendation “was based on the strength that I perceived that the grandfather, Randy has.” In fact, Dr. Otis testified that he could not recommend visitation with Connie, absent supervision, as Connie’s problems controlling her impulses could be “very influential” and detrimental to the children.

And while Dr. Otis testified that it may be harmful for Ricky to cut off the Johnsons’ access to B.G.D. in particular and that it was in the children’s best interest that they have some contact with their grandparents, his testimony does not support awarding Connie access over Ricky’s objection. According to Dr. Otis, “[t]he manner in which she resisted the children transitioning to [Ricky’s] full-time care interfered with the children’s emotional and behavioral adjustment.” He also concluded that Connie actively attempted to alienate B.G.D. from his father and that her behavior was “very damaging” to the parent-child relationship. Moreover, while Dr. Otis noted the children’s “sadness” at being unable to see their grandparents, he admitted that these feelings did not rise to the level of a significant emotional impairment.

The Legislature set a high threshold for a grandparent to overcome the presumption that a fit parent acts in his children’s best interest: the grandparent must prove that denial of access would “significantly impair” the children’s physical health or emotional well-being. Tex. Fam. Code § 153.433(2) (emphasis added). There has been no such showing here. A court may not lightly interfere with child-rearing decisions made by Ricky—a fit parent by all accounts—simply because a “better decision” may have been made. Troxel, 530 U.S. at 73.


Finally, we must consider whether Ricky has an adequate appellate remedy. Determining whether a party has an adequate remedy by appeal requires a “careful balanc[ing] of jurisprudential considerations” that “implicate both public and private interests. . . . When the benefits [of mandamus review] outweigh the detriments, appellate courts must consider whether the appellate remedy is adequate.” In re Prudential, 148 S.W.3d at 136. We have noted:

Mandamus review of significant rulings in exceptional cases may be essential to preserve important substantive and procedural rights from impairment or loss, allow the appellate courts to give needed and helpful direction to the law that would otherwise prove elusive in appeals from final judgments, and spare private parties and the public the time and money utterly wasted enduring eventual reversal of improperly conducted proceedings. Id.

We have previously granted mandamus relief to require a trial court to vacate its temporary orders granting grandparent access. In re Mays-Hooper, 189 S.W.3d at 778. A grandparent’s rights are generally subordinate to a parent’s. See Tex. Fam. Code § 153.433(2); see also Troxel, 530 U.S. at 64-65 (plurality opinion) (discussing how statutory rights extended to grandparents and other relatives can create a substantial burden on a parent’s traditional role in a child’s upbringing). As the Troxel plurality stated, “‘[i]t is cardinal . . . that the custody, care and nurture of the child reside first in the parents.’” Troxel, 530 U.S. at 65 (plurality opinion) (quoting Prince v. Massachusetts, 321 U.S. 158, 166 (1944)). Troxel also recognized that “the interest of parents in the care, custody, and control of their children—is perhaps the oldest of the fundamental liberty interests recognized by [the Supreme] Court [of the United States].” Id.
The temporary orders here divest a fit parent of possession of his children, in violation of Troxel’s cardinal principle and without overcoming the statutory presumption that the father is acting in his children’s best interest. Such a divestiture is irremediable, and mandamus relief is therefore appropriate. In re Mays-Hooper, 189 S.W.3d at 778; see also Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993) (granting mandamus relief to vacate trial court’s temporary order granting visitation in suit to establish paternity); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (holding that mandamus was an appropriate remedy because “the trial court’s issuance of temporary orders [was] not subject to interlocutory appeal”); accord In re Francis, 186 S.W.3d 534, 538 (Tex. 2006) (stating that a writ of mandamus may be appropriate for reviewing a temporary injunction); In re Newton, 146 S.W.3d 648, 651-52 (Tex. 2004) (conditionally granting mandamus relief and noting that “a temporary restraining order is generally not appealable”).


Without hearing oral argument, we conditionally grant mandamus relief and direct the trial court to vacate its July 7, 2006 amended temporary orders.[11] Tex. R. App. P. 52.8. We are confident that the trial court will promptly comply; our writ will issue only if it does not.


[1] Although B.G.D. is not Ricky’s biological son, Ricky adopted him.
[2] As an example, he cites a letter Connie wrote to B.G.D., noting that once B.G.D. turned seventeen, he could “move out of [his] dad’s house [and] never go back . . . .”
[3] Section 102.004(a) was amended, effective September 1, 2005. The version of the statute in effect when the trial court issued its June 4, 2003 order provided, in relevant part:

[A] grandparent may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1) the order requested is necessary because the child’s present environment presents a serious question concerning the child’s physical health or welfare

Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, § 1, 1995 Tex. Gen. Laws 113, 157, amended by Act of May 27, 2005, 74th Leg., R.S., ch. 489, 2005 Tex. Gen. Laws 1345.
[4] The Johnsons’ three sons (collectively, the “Uncles”) were among those interviewed by Dr. Otis.
[5] The Uncles were not parties to the suit.
[6] On June 12, 2006, the trial court heard Ricky’s motion to dismiss. At the hearing, Ricky’s lawyer stated that Ricky would be inclined to grant some type of access to the children, but not court-ordered access and only access that could be directed and supervised by Ricky “under his rights as a parent to oversee the interaction with the grandparent.” The trial court has not ruled on the motion.
[7] We note that standing was among the factors considered by the United States Supreme Court in concluding that Washington’s grandparent access statute was unconstitutional. See Troxel v. Granville, 530 U.S. 57, 67, 72 (2000) (plurality opinion)(noting the “breathtakingly broad” scope of the Washington statute at issue, which permitted “any person” to sue for access) (citation omitted).
[8] Family Code section 153.432 provides:

(a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing:

(1) an original suit; or

(2) a suit for modification as provided by Chapter 156.

(b) A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief, without regard to whether the appointment of a managing conservator is an issue in the suit.

Tex. Fam. Code § 153.432 (emphasis added).
[9] Family Code section 102.003(a)(9) states, “An original suit may be filed at any time by a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition.” Tex. Fam. Code § 102.003(a)(9).
[10] This is not to say that grandparents may not seek conservatorship by satisfying chapter 102’s standing requirements. See, e.g., Tex. Fam. Code § 102.003(a)(9) (authorizing suits by any “person, other than a foster parent” who has had actual care, control, and possession of the child for a designated period); id. § 102.004(a) (authorizing a grandparent to file an original suit seeking managing conservatorship under certain circumstances). Possession and access, however, are governed by chapter 153. Id. § 102.004(c).
[11] Because the trial court abused its discretion in ordering access pursuant to section 153.433(2) of the Family Code, we do not reach Ricky’s constitutional concerns nor whether the trial court abused its discretion in granting the Johnsons possession of, as opposed to access to, the children.