In re D.R.D., No. 05-06-00666-CV, (Tex.App. Dallas August 8, 2007)  (grandparent access denied)

File: 060666F - From documents transmitted: 08/08/2007

REVERSE and RENDER; Opinion issued August 8, 2007

In The
Court of Appeals
Fifth District of Texas at Dallas
.................................
No. 05-06-00666-CV
.................................

IN THE INTEREST OF D.R.D., A CHILD
.............................................................
On Appeal from the 336th Judicial District Court
Grayson County, Texas
Trial Court Cause No. 01-1000
.............................................................

MEMORANDUM OPINION

Before Justices Morris, Francis, and Mazzant

Opinion By Justice Morris
   
This is an appeal from an order granting Betty Gayle Rushing visitation with her grandchild, D.R.D., pursuant
to the grandparent access statute. In a single issue, the child's mother, Gayla Renee Randolph, challenges
the trial court's order asserting, among other things, that Rushing presented no evidence to satisfy the
statutory requirements for such an order. We agree. Accordingly, we reverse the trial court's order and render
judgment denying Rushing's petition for access. Because all dispositive issues are clearly settled in law, we
issue this memorandum opinion. The facts and procedural history of this appeal are well known to the parties;
we do not relate them in detail here.
   
The record shows that Gayla Renee Randolph and Dustin Daniel, Rushing's son, had one child, D.R.D. Daniel
died on September 9, 2005. Rushing filed this suit approximately two months after her son's death seeking
court-ordered visitation with her grandchild. After a hearing, the trial court granted Rushing's request.
   
Section 153.433 of the Texas Family Code sets forth the requirements that must be met before a court may
order access to a grandchild by a grandparent. See Tex. Fam. Code Ann. § 153.433 (Vernon Supp. 2006).
The statute presumes that a parent acts in her 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.” Id.; In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007). We review a trial court's
order for an abuse of discretion. See Derzapf, 219 S.W.3d at 333. A trial court abuses its discretion when it
grants access to a grandparent who has failed to meet this standard. Id.
   
To prevail on her petition for access, Rushing had to overcome the presumption that Randolph was acting in
the best interests of D.R.D. by proving by a preponderance of the evidence that denying Rushing access to D.
R.D. would significantly impair the child's physical or emotional health. Id. The record before us contains no
evidence from which the trial court could conclude Rushing met her statutory burden. Only Rushing and
Randolph testified at the hearing. Rushing testified that it would be in the child's best interest to have visitation
with her. There was no evidence, however, to support a finding that denial of access would significantly impair
the child's physical health or emotional well-being.

Absent the requisite evidence, the trial court abused its discretion in granting Rushing's petition for access.
Accordingly, we resolve Randolph's sole issue in her favor. We reverse the trial court's order granting Rushing
access to D.R.D. and render judgment denying Rushing's petition for access.

                                                     
                                                     JOSEPH B. MORRIS
                                                     JUSTICE

060666F.P05


File Date[08/08/2007]
File Name[060666F]
File Locator[08/08/2007-060666F]