File: 061554F - From documents transmitted: 01/03/2008
REVERSE and RENDER; Opinion issued December 19, 2007



In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-06-01554-CV
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IN THE INTEREST OF J.R.D., A MINOR CHILD
.............................................................
On Appeal from the 255th Judicial District Court
Dallas County, Texas
Trial Court Cause No. 04-19381-S
.............................................................
MEMORANDUM OPINION
Before Justices Morris, Wright, and Moseley
Opinion By Justice Morris
        This is an appeal from an order granting Ted and Anita Dettmer access and visitation with their paternal grandchild, J.R.D. J.R.D.'s mother challenges the trial court's order contending, among other things, that the trial court erred in not granting her motion for judgment because the Dettmers presented no evidence to meet their statutory burden of proof under section 153.433 of the Texas Family Code. We agree the Dettmers failed to meet their statutory burden. Accordingly, we reverse the trial court's order and render judgment denying the Dettmers' 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; therefore, we do not relate them in detail here.
        The Dettmers filed their petiton for grandparent access pursuant to section 153.432 of the Texas Family Code. See Tex. Fam. Code Ann. 153.432 (Vernon Supp. 2007). Section 153.433 sets forth the requirements that must be met before a court may order grandparent access to a grandchild under section 153.432. See id. 153.433. The statute presumes that a parent acts in the best interests of her child and permits a grandparent to obtain court-ordered access only upon a showing by a preponderance of the evidence that denial of such access would “significantly impair the child's physical health or emotional well-being.” Id; see also In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007).
        A trial was conducted on the Dettmers' petition before the court without a jury. At the conclusion of the trial, J.R.D.'s mother moved for a “directed verdict” arguing the Dettmers failed to meet their statutory burden of proof. A judgment for the defense following such a motion is proper when (1) a plaintiff fails to present evidence raising a fact issue essential to the plaintiff's right to recover or (2) if the plaintiff admits or the evidence conclusively establishes a defense to the plaintiff's cause of action. See Prudential Ins. Co. of America v. Fin. Review Servs., Inc., 29 S.W.3d 74, 77 (Tex. 2000).
        The evidence presented at trial consisted of copies of temporary court orders granting the Dettmers access to J.R.D. and the testimony of J.R.D.'s mother and Anita Dettmer. Both witnesses testified the Dettmers were allowed to visit with J.R.D., but J.R.D.'s mother had not provided access on the dates and times specified in the temporary court orders and she no longer permitted the Dettmers to have unsupervised visitation with the child. Anita Dettmer stated she felt J.R.D. needed to know his grandparents and she felt it was important for her to have a relationship with J.R.D because it was “all [she] had left” of her son, J.R.D.'s father, who had recently died. Although J.R.D.'s mother agreed in her testimony that it was important to her child's growth and emotional health to have a relationship with his grandparents, there is no evidence in the record that denial of access would significantly impair J.R.D.'s physical health or emotional well-being. See Derzapf, 219 S.W.3d at 333.
        Absent any evidence that denial of access would significantly impair J.R.D.'s physical health or emotional well-being, the trial court erred in denying the motion for judgment filed by J.R.D.'s mother. We resolve this issue in favor of J.R.D.'s mother. Because of our resolution of this issue, it is unnecessary for us to address any of the remaining issues presented.
        We reverse the trial court's order granting the Dettmers access to J.R.D. We render judgment denying the Dettmers' petition for access.


                                                          
                                                          JOSEPH B. MORRIS
                                                          JUSTICE

061554F.P05



File Date[01/03/2008]
File Name[061554F]
File Locator[01/03/2008-061554F]