Parental Presumption does not apply in SAPCR modification proceeding - order terminating grandparent access reversed

Grandparent access: In the Interest of M.A.S. and M.B.S., Children, No. (Tex.App. - San Antonio, Sep. 12, 2007)(Opinion by Chief Justice López)(grandparent access)(Before Chief Justice López, Justices Marion and Speedlin)
Appeal from 81st District Court of Wilson County
Disposition: Reversed and remanded

IN THE INTEREST OF M.A.S. and M.B.S., Children

From the 81st Judicial District Court, Wilson County, Texas
Trial Court No. 04-12-0553-CVW
Honorable Stella Saxon, Judge Presiding
Opinion by: Alma L. López, Chief Justice
Sitting: Alma L. López, Chief Justice
Sandee Bryan Marion, Justice
Phylis J. Speedlin, Justice
Delivered and Filed: September 12, 2007

REVERSED AND REMANDED

Reanell Speer appeals the trial court's order modifying the parent-child relationship and terminating her access to her grandchildren. Speer contends that the trial court erred in applying a parental presumption in the modification proceeding. We reverse the trial court's order and remand the cause to the trial court for further proceedings.

Background

Milisia Bielstein and Thomas Swanson are the parents of two children, M.A.S. and M.B.S. Reanell Speer is the children's maternal grandmother. In May of 2004, the trial court issued a custody order naming Bielstein and Swanson as joint managing conservators and Speer as possessory conservator of the children. In January of 2006, Bielstein filed a motion to modify the parent-child relationship, requesting that Speer's access to the children be terminated. After a hearing, the trial court granted Bielstein's motion. This appeal followed.

Standard of Review

We review a trial court's decision to modify conservatorship under an abuse of discretion standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); In the Interest of M.R., 975 S.W.2d 51, 53 (Tex. App.-San Antonio 1998, pet. denied). A trial court abuses its discretion when its ruling is arbitrary, unreasonable, or without reference to any guiding rules or principles. K-Mart Corp. v. Honeycutt, 24 S.W.3d 357, 360 (Tex. 2000); Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990).

Analysis

Speer contends that the trial court erred in applying a presumption that a parent acts in the best interest of her children in the modification proceeding. Citing In re V.L.K., 24 S.W.3d 338 (Tex. 2000) (1), Speer argues that the presumption, which is set forth in section 153.433(2) of the Texas Family Code (2), applies only to an original custody proceeding but not to a modification proceeding. We agree.

In V.L.K., the Texas Supreme Court held that the parental presumption contained in section 153.131 of the Texas Family Code applied only in original custody determinations and not in modification suits. 24 S.W.3d at 339-40. The court made a distinction between Chapter 153 of the Family Code, which governs original custody determinations and contains a parental presumption, and Chapter 156 of the Family Code, which governs modification suits and does not contain a presumption. Id. at 341-43. Because the legislature did not include a parental presumption in Chapter 156, the court held that the presumption did not apply in modification suits. Id. at 343. Like the presumption in V.L.K., the parental presumption involved in this case is also contained in Chapter 153, and its applicability is therefore also limited to original custody determinations. See id.; Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).

Thus, the trial court erred in applying a parental presumption in this case.

The correct standard is contained in section 156.101, which places the burden on the person seeking modification of an existing custody order to show that modification would be in the best interest of the child and that the circumstances of at least one of the parties affected by the order have materially and substantially changed since the order took effect. See Tex. Fam. Code Ann. § 156.101 (Vernon Supp. 2007).

Bielstein argues that there is no evidence that the trial court applied a parental presumption in this case. We disagree. During a hearing on Bielstein's motion to enter the trial court's modification order, Bielstein argued that the trial court should enter the order based on In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006), which relied extensively on the plurality opinion in Troxel v. Granville, 530 U.S. 57 (2000) in holding a visitation statute unconstitutional. Mays-Hooper, 189 S.W.3d at 777-78. In Troxel, the plurality held a visitation statute unconstitutional mainly because the statute did not include a presumption that a fit parent acts in the best interest of her children. 530 U.S. at 68-70. In Mays-Hooper, the court stated that it reached the same result as that in Troxel because the facts in both cases were "virtually the same." 189 S.W.3d at 778. Speer argued at the hearing that the parental presumption involved in Mays-Hooper applied to only original custody determinations and not to modification proceedings.

After hearing arguments from both parties, the trial court concluded that "[b]ased upon the applicable law in the State of Texas the court finds that in this particular case the Mays-Hooper standard does apply." Later, at a hearing on Speer's motion for reconsideration and new trial, the trial court stated that "[i]t seems to me that the entire direction that the law is going in is a recognition by the courts that parents have a right to determine access to their children." The trial court's comments make it clear that the court applied a parental presumption in this case.

Because the parental presumption does not apply in modification suits, the trial court abused its discretion in applying the presumption in this case. Accordingly, we reverse the trial court's order and remand the cause to the trial court for further proceedings consistent with this opinion.

Conclusion

The trial court's order is reversed, and the cause is remanded to the trial court for further proceedings consistent with this opinion. (3)
Alma L. López, Chief Justice

1. Although the opinion in In re V.L.K. was issued before the United States Supreme Court's decision in Troxel v. Granville, 530 U.S. 57 (2000), Bielstein does not argue in her brief that Troxel affects the holding in In re V.L.K., and at least one court has expressly addressed the continuing validity of the Texas Supreme Court's decision post-Troxel. See In re M.N.G., 113 S.W.3d 27 (Tex. App.--Fort Worth 2003, no pet).

2. The relevant provision of section 153.433 of the Texas Family Code states that the court must order reasonable possession of or access to a grandchild by a grandparent if, among other things, "the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being." Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2007).

3. Speer also contends that the trial court erred in: (1) failing to make a record of the modification hearing and failing to consider evidence at the hearing; (2) granting the motion to modify when there was no evidence that the circumstances of any parties affected by the order had materially or substantially changed and no evidence that the modification was in the best interest of the children; and (3) excluding evidence that the children's physical or emotional well-being would suffer if the court did not grant grandparent visitation. We need not address these issues because our analysis of the trial court's application of the parental presumption is dispositive of this appeal. See Tex. R. App. P. 47.1.