In re Christine Keller--Appeal from 288th Judicial District Court of Bexar County

MEMORANDUM OPINION

No. 04-05-00542-CV

IN RE Christine KELLER

Original Mandamus Proceeding //

Opinion by: Sarah B. Duncan, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: September 14, 2005

PETITION FOR WRIT OF MANDAMUS CONDITIONALLY GRANTED

Christine Keller seeks a writ of mandamus to compel the trial court to vacate its temporary order granting Andrew Hernandez Sr. and Maria Hernandez access to and visitation with Christine s twenty-one month old daughter, Trinity. We conditionally grant the requested writ.

Factual and Procedural Background

Trinity was born November 7, 2003 to Christine and Andy Hernandez Jr. In October 2004, three months after Christine and Andy were married, Andy died of leukemia. In July 2005, Andy s father, Andrew Hernandez Sr., petitioned for grandparent access and moved for temporary orders pursuant to section 153.433 of the Texas Family Code, which provides that, when a grandparent requests access to a grandchild, [t]he court shall order reasonable access if: at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent s parental rights terminated; access is in the best interest of the child; and at least one of six enumerated circumstances is present. Tex. Fam. Code Ann. 153.433 (Vernon 2002) (the Grandparent Access Statute). The circumstance invoked by Hernandez s petition is that the grandparent requesting access to the child is a parent of a parent of the child and that parent of the child ... is dead. Id. 153.433(2)(A). Christine answered, stating she is unalterably opposed to access, which she alleges would endanger the child s health and well being ; according to Christine, she has the sole right to determine who has access to her child under Troxel v. Granville, 530 U.S. 57 (2000). After a hearing, the trial court orally rendered a temporary order granting access to not only Hernandez but also his wife Maria, who had not joined Hernandez s petition and was not otherwise made a party to the proceeding. In response, Christine filed a petition for a writ of mandamus seeking to compel the trial judge to vacate his order. At Christine s request, we stayed the visitation order pending our resolution of this original proceeding.

Prerequisites for Mandamus Relief

A writ of mandamus will issue only to correct a clear abuse of discretion for which relator has no other adequate remedy. Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992). Because temporary orders in suits affecting the parent-child relationship are not appealable, a petition for a writ of mandamus is an appropriate means to challenge them. See Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (orig. proceeding); In re Pensom, 126 S.W.3d 251 (Tex. App. San Antonio 2003, orig. proceeding).

With respect to resolution of factual issues or matters committed to the trial court s discretion, a trial court abuses its discretion only if the record establishes it could reasonably have reached only one decision and failed to do so. Packer, 827 S.W.2d at 839-40. On the other hand, review of a trial court s determination of the legal principles controlling its ruling is much less deferential. Id. at 840. A trial court has no discretion in determining what the law is or applying the law to the facts. Id. Thus, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id.

Discussion

Citing Troxel v. Granville, 530 U.S. 57, 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000), Christine first argues the Grandparent Access Statute is unconstitutional on its face because it violates parents fundamental rights under the Due Process Clause of the Fourteenth Amendment to make decisions concerning the care, custody, and control of their children by authorizing a trial court to grant access against the wishes of a fit parent if, in the trial court s sole discretion, access is in the child s best interest. We disagree. Indeed, we recently rejected a similar challenge to the Grandparent Access Statute by constru[ing] [it] narrowly and in a manner consistent with the constitutional principles stated in Troxel. In re Pensom, 126 S.W.3d 251, 256 (Tex. App. San Antonio 2003, orig. proceeding). Accordingly, to protect[] parents fundamental rights under the Due Process Clause, we presum[e] that a fit parent acts in the best interest of his or her child. Id. [A] grandparent must overcome [this] presumption to satisfy the best interest of the child prong of the Grandparent Access Statute. Id. To overcome this presumption, a grandparent has the burden to prove, by a preponderance of the evidence, either that the parent is not fit, or that denial of access by the grandparent would significantly impair the child s physical health or emotional well-being. Id. We thus reject Christine s facial challenge by reiterating our holding in Pensom: the Grandparent Access Statute is not facially unconstitutional when construed narrowly in light of the constitutional limitations stated in Troxel. See id.; Op. Tex. Att y Gen. No. GA-0260 (2004).

Christine next argues the trial court abused its discretion in failing to apply the Grandparent Access Statute as it was construed in Pensom. We agree. Because Hernandez affirmatively disavows any contention that Christine is not a fit parent, and Christine (with whom Trinity has lived all her life) testified unequivocally that she did not believe it was in Trinity s best interest to have contact with the Hernandezes, a constitutional application of the Grandparent Access Statute require[d] the trial court to find ... that ... denial of access by [Hernandez] would significantly impair [Trinity s] physical health or emotional well-being. Id. However, Hernandez presented no direct evidence to this effect. Indeed, the only evidence of his previous contact with Trinity is his testimony that he had regular access to her in May or June of 2004 when he would pick up Andy and Trinity, take them to Andy s lengthy lab appointments, and then would have to babysit [Trinity] all day from 9:00 until 1:00 or 2:00 in the afternoon. Hernandez did not testify regarding the frequency of these visits or that, as a result of this limited contact, he developed a bond or relationship with Trinity. Nor did he contradict Christine s testimony or her father s that, while Andy was alive, the Hernandezes didn t want anything to do with Trinity and said straight out that they didn t care about Trinity. It is also undisputed that Hernandez has not seen Trinity since Andy s funeral in October 2004; and there is no evidence that Maria Hernandez has ever had any contact with Trinity. Although Hernandez testified he and his wife have attempted to see Trinity since Andy s funeral, he provided no details about these attempts. And Christine testified that, since Andy died, Hernandez has not contacted her at all. In short, there is no evidence to overcome the presumption that Christine s decision to deny Hernandez access is in Trinity s best interest.

Conclusion

On the record before it, the trial judge could reasonably have reached only one decision : to deny Hernandez s motion for temporary orders. Because the trial judge instead granted Hernandez s motion, we conditionally grant Christine s petition for a writ of mandamus and direct the trial judge to vacate his temporary orders.

Sarah B. Duncan, Justice