In re J.P.C., No. 02-07-00184-CV (Tex.App.- Fort Worth, July 17, 2008) (grandparent access order entred
after death of parent reversed on appeal - statutory standard for award of possession over surviving parent's
objection not met)

OPINION

I. Introduction

In one issue, Appellant Dayna Kay C. argues that the trial court abused its discretion when it granted
Appellees Richard and Maurine C.'s petition for grandparent access.  We reverse and render.

II. Factual and Procedural History

Dayna and Robert C. were married May 20, 1996.  They had one child, J.P.C., who was born March 29,
1999.  Dayna filed for divorce from Robert in May 2002.  After the divorce was filed, Robert went to live with
his parents, Richard and Maurine C. ("the grandparents").  Subsequently, the trial court entered temporary
orders awarding Dayna primary managing conservatorship and awarding Robert standard possession subject
to the grandparents= supervision.

In March or April 2003, the divorce proceedings were halted when Robert was diagnosed with a terminal
disease.  Robert died on May 9, 2004.  J.P.C. was five years old at the time.  On May 18, 2004, the
grandparents filed an original petition for grandparent access.  On January 31, 2007, the trial court issued a
rendition letter granting the grandparents possession of and access to J.P.C.  On May 18, 2007, the trial court
signed its order granting the grandparents possession and access.  J.P.C. was eight years old at that time.  
Dayna brought this appeal.

III. Standard of Review

Before we determine the merits of Dayna's appeal, we must first decide what standard of review applies to a
trial court's determination of grandparent access and possession under section 153.433 of the Texas Family
Code.[1]  Tex. Fam. Code Ann. ' 153.433 (Vernon Supp. 2008).  Although section 153.433 does not
specifically include a best interest analysis, section 153.002 dictates that the best interest of the child shall
always be the primary consideration of the court in determining the issues of conservatorship and possession
of and access to the child.  Id.  The determination of a minor's best interest requires the court to balance the
possible benefits and detriments to the minor in granting grandparent access and possession.[2]  This type of
balancing necessarily involves the exercise of judicial discretion and should be reviewed on that basis. See In
re Doe 2, 19 S.W.3d at 281.  Moreover, this type of review is used in many other family law contexts; for
instance, in child support, adoption, and custody cases the trial court's best interest finding is reviewed for an
abuse of discretion.[3]  Id.  Because of the discretionary nature of the trial court's determination and the
similarity to review of best interest findings in other family law contexts, we hold that abuse of discretion is the
proper standard of review for a trial court's determination regarding grandparent access and possession.  

To determine whether a trial court abused its discretion, we must decide whether the trial court acted without
reference to any guiding rules or principles; in other words, we must decide whether the act was arbitrary or
unreasonable.  Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238, 241-42 (Tex. 1985), cert. denied,
476 U.S. 1159 (1986).  Merely because a trial court may decide a matter within its discretion in a different
manner than an appellate court would in a similar circumstance does not demonstrate that an abuse of
discretion has occurred.  Id.  An abuse of discretion does not occur where the trial court bases its decisions
on conflicting evidence.  In re Barber, 982 S.W.2d 364, 366 (Tex. 1998) (orig. proceeding).  Furthermore, an
abuse of discretion does not occur as long as some evidence of substantive and probative character exists to
support the trial court's decision.  Butnaru v. Ford Motor Co., 84 S.W.3d 198, 211 (Tex. 2002).  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).

In Dayna's sole issue on appeal, she argues that the trial court abused its discretion when it granted the
grandparents access to J.P.C. because the evidence was both legally and factually insufficient to support that
decision.  In appropriate cases, legal and factual sufficiency are relevant factors in assessing whether the trial
court abused its discretion.  Beaumont Bank, N.A. v. Buller, 806 S.W.2d 223, 226 (Tex. 1991); Tex. Dep't of
Health v. Buckner, 950 S.W.2d 216, 218 (Tex. App.- Fort Worth 1997, no writ).  Furthermore, when an abuse
of discretion standard of review applies to a trial court's ruling, findings of fact and conclusions of law aid us in
reviewing the propriety of the ruling by providing us with an explanation for the ruling.  Chrysler Corp. v.
Blackmon, 841 S.W.2d 844, 852 (Tex. 1992); Samuelson v. United Healthcare of Tex., Inc., 79 S.W.3d 706,
710 (Tex. App.- Fort Worth 2002, no pet.).

IV. Grandparents Access

A. Applicable Law

Section 153.433 of the Texas Family Code sets forth the requirements that must be met before a court may
order grandparent access to a grandchild.[4]  See Tex. Fam. Code Ann. ' 153.433.  The statute presumes
that a parent acts in the child's best interest, and it permits a grandparent to obtain court‑ordered access only
upon a showing that denial of access will "significantly impair the child=s physical health or emotional well-
being." In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig. proceeding).

The Legislature has set a high threshold for a grandparent to overcome the presumption that a parent acts in
his or her child's best interest: the grandparent must prove that denial of access would "significantly impair"
the child's physical health or emotional well-being.  Tex. Fam. Code Ann. ' 153.433(2) (emphasis added); see
Derzapf, 219 S.W.3d at 334.  This high threshold exists so that a court will refrain from interfering with child-
rearing decisions made by a parent simply because the court believes that a "better decision" could have
been made.  See Derzapf, 219 S.W.3d at 334 (quoting Troxel v. Granville, 530 U.S. 57, 73, 120 S. Ct. 2054,
2064 (2000)).

B. Overcoming the Statutory Presumption

We must now determine whether the grandparents in this case presented sufficient evidence to overcome the
presumption enunciated in section 153.433.  To succeed on their claim, the grandparents had to prove by a
preponderance of the evidence that the denial of access would "significantly impair" J.P.C.'s physical health or
emotional well-being.  See Derzapf, 219 S.W.3d at 334.

In an effort to demonstrate that the denial of access would significantly impair J.P.C., the grandparents urge
us to consider their significant and lengthy past contact with J.P.C. that occurred in their home while they
cared for Robert during the divorce proceedings.  They argue that since their access to J.P.C. had been
limited and restricted after Robert's death, J.P.C.'s behavior was "different" than it had been when they were
able to see each other regularly - that J.P.C. was "longing."  Maurine testified that when they were able to
have a supervised visit at the park "[J.P.C.] would take me off and - just take me by the hand and want to go
off and, you know, sit under the slide and just sit there and just be there.  She just wanted to be with me."  
Richard testified that Dayna's supervision of their visits with J.P.C. "caused [J.P.C.] discomfort" and that J.P.C.
acted differently, appearing inhibited, pensive, and superficial when Dayna was present.

The grandparents also argue that a clear visitation schedule was good for J.P.C. because it was not in J.P.
C.'s best interest to have the constant pulling back and forth between themselves and Dayna as they tried to
organize visitations.  They express their fear that without a court order it would become almost impossible to
establish regular visits, and as a result, J.P.C.'s memory of her father would dwindle and her father's side of
the family would not be able to be a part of her life.  They argue that their fear was evidenced by the fact that
J.P.C. threw pictures of her father into the trash.  The grandparents also point to a letter that Dayna wrote to J.
P.C.'s kindergarten teacher in which Dayna described Robert's illness and his "abnormal behaviors and
verbal abusiveness" as an example of how Dayna was, according to the grandparents, "making every effort to
control [J.P.C.'s] memor[y] of her father."

We have closely reviewed the record in this case for evidence that denial of access would significantly impair J.
P.C.'s physical health or emotional well-being, and we are unpersuaded by the grandparents' arguments.  Our
review of the record shows that the grandparents have not presented any probative evidence to show that J.P.
C.'s physical or emotional health would be significantly impaired by the denial of access.  See Butnaru, 84 S.
W.3d at 211.  Instead, the grandparents have offered only bare, unsupported allegations that the denial of
access would significantly impair J.P.C.

For instance, although they argue that limited and restricted access to J.P.C. was, in their opinion, causing
her distress and causing her to act "different, inhibited, pensive, and superficial," the only evidence they offer
to show that J.P.C. was distressed was Maurine's testimony regarding her  interaction with J.P.C. at the park.  
However, they do not explain how J.P.C.'s alleged "discomfort" amounts to significant impairment, nor do they
offer any evidence connecting J.P.C.'s "different, inhibited, pensive, and superficial" behavior to the visitation
schedule or Dayna's supervision of their visits. Instead, the "evidence" they raise is merely their own
characterization of J.P.C.'s behavior, and their conclusion that such behavior was the result of the limited and
restricted access.

Further, while the grandparents argue that without regular, court-ordered visits, J.P.C. would be significantly
impaired because her memory of her father would dwindle, the grandparents have not presented any
probative evidence to support their belief.  For instance, although the grandparents rely on the fact that J.P.C.
threw pictures of her father into the trash as evidence that J.P.C.'s memory of her father was dwindling, the
record clearly shows that this event occurred during Dayna and Robert's divorce proceedings, while J.P.C.
was regularly visiting their house during Robert's periods of visitation, and not subsequent to Robert's death.  
Thus, the grandparents' reliance on this piece of evidence is misplaced.  

Similarly, the grandparents' characterization of Dayna's letter to J.P.C.'s kindergarten teacher as evidence
that Dayna was attempting to "control [J.P.C.'s] memor[y] of her father" is also unfounded.  Rather, the record
shows that the letter was Dayna's attempt to ease J.P.C.'s transition after the loss of her father by informing
her teacher of the difficulties that J.P.C. had faced and issues that may arise as a result.  Indeed, J.P.C.'s
teacher testified that the letter Dayna gave her "was extremely helpful" in letting her know what she might be
dealing with in regards to J.P.C.  Moreover, the grandparents have not presented any evidence showing that J.
P.C. has been unable to remember her father.  In contrast, the record shows that after Robert's death, J.P.C.
had pictures of him in her room and that "she [would] have them up for a while. . .  and then she [would] take
them down."[5]

Furthermore, the grandparents' position that the denial of court-ordered visitation would significantly impair J.
P.C. is based completely on their expressed feeling that it was not in J.P.C.'s best interest to have the
constant pulling back and forth between themselves and Dayna, and their fear that without the court order it
would become impossible to establish regular visits.  However, there is no evidence that the schedule that
existed before litigation, although not as frequent as the grandparents would have liked, was harming J.P.C.;
again, this is just Maurine and Richard's opinion that regular, unsupervised visits would be better.  With no
other evidence to demonstrate how J.P.C. would be significantly impaired, these arguments, in and of
themselves, are only reflections of the grandparents' fears and speculations and do not support the trial
court's finding that the grandparents overcame the statutory presumption.

Significantly, the only testimony presented by the grandparents on the issue of whether J.P.C. was
significantly impaired by the denial of access was their own testimony and the testimony of Karen, J.P.C.'s
paternal aunt, who testified that if the grandparents were not given access, J.P.C. would have a lot of
questions as to why.  But "questions" are not evidence of significant impairment.  Once again, other than their
own opinions and that of an interested, nonexpert witness, the grandparents produced no evidence that J.P.
C. would be significantly impaired in the absence of court-ordered access.        In contrast, Dayna presented
evidence demonstrating that J.P.C. was not significantly impaired by the denial of access.  While the
grandparents allege that the limited and restricted visits were causing J.P.C. distress, Dayna points out that
both the grandfather and the paternal aunt actually testified that J.P.C. was a happy little girl.  Similarly, J.P.
C.'s kindergarten teacher testified that J.P.C. was a loving, sweet child who was very social and interactive
with others.  Moreover, Dayna points out that although the grandparents claim that the denial of visitation
would significantly impair J.P.C., they actually made no effort to contact Dayna to set up a visitation schedule
after Robert's death; instead, they immediately filed a petition for grandparent access.  Lastly,  Dayna argues
that the imposition of visitation would serve only to make J.P.C. live under the constraint of a court order, an
action that was unnecessary because Dayna was already offering the grandparents supervised visits with J.P.
C.

After reviewing the record, we determine that the evidence produced by the grandparents, largely consisting
of their own feelings and speculations, did not rise to the level of proving by a preponderance of the evidence
that denial of access would significantly impair the physical health or emotional well-being of J.P.C.  The mere
opinion of the grandparents themselves and an interested, nonexpert witness that the grandparents should
be granted access does not overcome the statutory presumption, nor does it support the court's interference
with Dayna's parental rights by awarding the grandparents court-ordered access to J.P.C.  Thus, the
grandparents have failed to show that the denial of access would significantly impair J.P.C.'s physical or
emotional well-being.  Because a trial court has no discretion in applying the law to the facts, the trial court's
determination that the statutory presumption was overcome was an abuse of discretion.  See In re Prudential
Ins. Co. of Am., 148 S.W.3d at 135.

V.  Conclusion

Having determined that the grandparents failed to overcome the statutory presumption by proving by a
preponderance of the evidence that the denial of access would significantly impair J.P.C.'s physical health or
emotional well-being, we hold that the trial court abused its discretion in awarding the grandparents access to
J.P.C.  Accordingly, we reverse the trial court's order and render judgment denying the grandparents' petition
for access.

BOB MCCOY

JUSTICE

PANEL B:   LIVINGSTON, WALKER, and MCCOY, JJ.

WALKER, J. concurs without opinion.

DELIVERED: July 17, 2008   

[1] While both parties assert that the trial court's determination of grandparent access and possession is
reviewed under an abuse of discretion standard, they do not cite, nor have we found, any authority
specifically applying an abuse of discretion review to section 153.433 appeals.  Therefore, we address the
issue as a threshold matter here.

[2] Cf. In re Doe 2, 19 S.W.3d 278, 281(Tex. 2000) (observing that, in evaluating a minor's request for waiver
of parental notification to obtain an abortion, the trial court's determination of the minor's best interests
require that the trial court balance the possible benefits and detriments to the minor in notifying her parents).

[3] See, e.g., Worford v. Stamper, 801 S.W.2d 108, 109 (Tex. 1990); In re W.E.R., 669 S.W.2d 716, 716 (Tex.
1984); Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).

[4] The court shall order reasonable possession of or access to a grandchild by a grandparent if:

. . . .

(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent
acts in the best interest of the parent=s child by proving by a preponderance of the evidence that denial of
possession of or access to the child would significantly impair the child's physical health or emotional well-
being; and

(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and
that parent of the child:

(A) has been incarcerated in jail or prison during the three‑month period preceding the filing of the petition;

(B) has been found by a court to be incompetent;

(C) is dead; or

(D) does not have actual or court‑ordered possession of or access to the child.

Tex. Fam. Code Ann. ' 153.433(2)B(3).

[5]The testimony regarding J.P.C.'s interaction with her father's pictures after his death was confusing, at best.

Q: Can you tell the Court whether or not there are any photos of your deceased husband in your home?

A: Yes, there are.

Q: Are there any in your daughter=s room?

A: Yes, there are.

Q: And what has she done with the photos in her room of her dad?

A: She would do different things at different times.  During the divorce proceedings. . . . The photographs that
had been in my room, she had put them away.  Fortunately, fished some of them out of the trash can and take
them and hide those.

Q: Since [Robert's] death, has there been any activity of your daughter with her dad's pictures?

A: Yes. There's still activity to where she'll have them up for a while.  Then she'll take them down.