Challenge to order granting temporary visitation/access to other grandparent fails

In re Kevin J. Smith (Tex.App.- Houston [14th Dist.] July 3, 2008)(Frost) (mandamus denied)
SAPCR, grandparent access, grandparent standing, dispute between grandparents, juvenile court, no de
novo hearing in appeal from juvenile court master)
Justice Kem Frost  
Before Price, Justices Frost and Seymore
14-08-00164-CV In Re Kevin John Smith and Debbie Stanley Smith
Appeal from 314th District Court of Harris County
Trial Court Judge: John Phillips  


This mandamus proceeding arises out of a custody dispute between a minor child's paternal grandparents.  
The paternal grandfather and his wife are the child's joint managing conservators.  They seek a writ of
mandamus ordering the trial court to vacate temporary orders that granted the child's paternal grandmother's
request for grandparent access to the child.  We deny the requested relief.


In an agreed decree entered March 28, 2006, the trial court judge[1] found that the best interests of minor
child E.R.S. would not be served by appointing her parents as managing conservators.  Relator Kevin Smith
is the child's paternal grandfather.  Kevin, together with his wife, relator Debbie Smith, were appointed as the
child's joint managing conservators; the parents were named as joint possessory conservators and were
granted limited access to the child.  Real party in interest, Lisa Bobo, the child's paternal grandmother, did
not participate in these initial conservatorship proceedings.

Occasionally, the Smiths permitted Lisa to visit her granddaughter; however, they ultimately concluded that
the informal visitation arrangement was unacceptable, and denied Lisa further access to the child.  Lisa
responded by filing a modification petition for grandparent access.  See Tex. Fam. Code Ann. ' 153.432
(Vernon Supp. 2007).  The trial judge referred the case to the Honorable Aneeta Jamal, who serves the 314th
District Court as a juvenile law master.[2]  The master conducted a hearing on Lisa's request for temporary
orders.  After hearing testimony from Kevin and Lisa, the master awarded standard possession to Lisa while
simultaneously suspending the biological parents' visitation rights.[3]

The Smiths asked the trial court to conduct a de novo appeal under the Family Code.  See id. ' 201.015(f)
(Vernon Supp. 2007).  The trial judge denied the request, and overruled the Smiths' objection that Lisa
lacked the legal standing to request access.  These two mandamus proceedings followed, with each
containing different grounds to challenge the trial court=s grant of access.  We grant the Smiths' motion to
consolidate the mandamus actions, and will address both in this opinion.

We hold that the trial court did not abuse its discretion in (1) denying the request for a de novo appeal, (2)
ruling that Lisa has legal standing to request access, and (3) adopting the master's recommendation that Lisa
be granted temporary access pending final disposition.  We therefore deny the Smiths' mandamus petition.
Standard of Review

Mandamus relief will lie if the relator establishes a clear abuse of discretion for which there is no adequate
appellate remedy.  In re Autonation, Inc., 228 S.W.3d 663, 667 (Tex. 2007) (orig. proceeding).  A trial court
clearly abuses its discretion if it reaches a decision so arbitrary and unreasonable as to constitute a clear and
prejudicial error of law.  Walker v. Packer, 827 S.W.2d 833, 839 (Tex. 1992) (orig. proceeding).  With respect
to the resolution of factual issues, the reviewing court may not substitute its judgment for that of the trial court.
 Id.  The relator therefore must establish that the trial court reasonably could have reached only one decision.
 Id. at 840.  On the other hand, a trial court has no discretion in determining what the law is or applying the
law to the facts; therefore, a clear failure by the trial court to analyze or apply the law correctly constitutes an
abuse of discretion.  Id.  Thus, a trial court=s erroneous legal conclusion constitutes an abuse of discretion,
even in an unsettled area of law.  Huie v. DeShazo, 922 S.W.2d 920, 927-28 (Tex. 1996) (orig. proceeding).
De Novo Appeal

The Smiths contend that the trial court abused its discretion in refusing to conduct a de novo hearing.  Under
section 201.015, after an appropriate family law case has been referred to an associate judge, the referring
court -  upon request - must timely conduct a de novo hearing.  See Tex. Fam. Code Ann. ' 201.015(f)
(Vernon Supp. 2007); Fountain v. Knebel, 45 S.W.3d 736, 739 (Tex. App.- Dallas 2001, no pet.).  Because
this case was brought in a Harris County juvenile district court, however, section 201.015 does not apply.

The 314th District Court has been designated as a "juvenile court" under Government Code section 23.001.  
See Harris County R. Jud. Admin. 9.1.3; see generally In re T.A.W., 234 S.W.3d 704, 704-05 (Tex. App.-
Houston [14th Dist.] 2007, pet. denied).  The statutory authorization for appointment of juvenile law masters in
a juvenile court differs from that which permits the appointment of associate judges in family district courts.  
Compare Tex. Gov't Code Ann. ' 54.681 (Vernon 2005) with Tex. Fam. Code Ann. ' 201.001 (Vernon Supp.
2007).  Because Aneeta Jamal was appointed as a juvenile law master under the Government Code, those
specific provisions apply instead of the Family Code's more general provisions.  See In re S.M.E., No.
14-02-00350-CV, 2003 WL 124401, at *2 (Tex. App.- Houston [14th Dist.] 2003, pet. denied) (mem. op.).

The Government Code does not provide for mandatory de novo review of a master's recommendations.  See
id.  Instead, the juvenile court judge "may adopt, modify, correct, reject, or reverse the master's report or may
recommit it for further information, as the court determines to be proper and necessary in each case."  Tex.
Gov't Code Ann. ' 54.697 (Vernon 2005) (emphasis added).  Therefore, the trial court did not abuse its
discretion in denying a hearing de novo from the juvenile law master's report.  See S.M.E., 2003 WL 124401,
at *2.

We overrule the Smiths' first issue.

The Smiths argue that, because the child's father had court-ordered access to the child under the Decree,
Lisa lacked standing to request grandparent access.  Their argument is premised upon Family Code section
153.433, which provides that a court shall grant grandparent access if certain conditions have been met.  

Pertinent to this inquiry, one of those conditions is that the grandparent must be a parent of a parent of the
child, and the parent "does not have actual or court-ordered possession of or access to the child."  See Tex.
Fam. Code Ann. ' 153.433(3)(D) (Vernon Supp. 2007).  Lisa is the mother of the child's father.  Because the
decree granted the child's father limited access to E.R.S., the Smiths contend that Lisa lacked standing.  

We disagree.

"Standing is implicit in the concept of subject matter jurisdiction."  Tex. Ass'n of Bus. v. Tex. Air Control Bd.,
852 S.W.2d 440, 443 (Tex. 1993).  A party's lack of standing deprives the trial court of subject matter
jurisdiction, and renders any trial court action void.  Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 455
(Tex. App.- Houston [14th Dist.] 2002, no pet.).  Whether a party has standing is a threshold issue, and one
which we review de novo.  See In re SSJ-J, 153 S.W.3d 132, 134 (Tex. App.- San Antonio 2004, no pet.);
Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App. Houston [1st Dist.] 2006, pet. denied).  When standing has
been conferred by statute, the statute itself should serve as the proper framework for a standing analysis.  In
re Sullivan, 157 S.W.3d 911, 915 (Tex. App.- Houston [14th Dist.] 2005, orig. proceeding [mand. denied]).  
We review the trial court's interpretation of applicable statutes de novo.  See Johnson v. City of Fort Worth,
774 S.W.2d 653, 656 (Tex. 1989).  In construing a statute, our objective is to determine and give effect to the
legislative intent.  See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex. 2000).  If possible, we
must ascertain that intent from the language the Legislature used in the statute and not look to extraneous
matters for an intent the statute does not state.  Id.  If the meaning of the statutory language is unambiguous,
we adopt the interpretation supported by the plain meaning of the provision's words.  St. Luke's Episcopal
Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex. 1997).  We must not engage in forced or strained construction;
instead, we must yield to the plain sense of the words the Legislature chose.  See id.

The Family Code provides that a biological or adoptive grandparent may request access to a grandchild.  
See Tex. Fam. Code Ann. ' 153.432.  As the child's biological grandmother, Lisa meets this standing
requirement.  The Smiths contend, however, that section 153.433 imposes additional conditions for standing.  
The plain statutory language does not support this interpretation.  Sections 153.432 and 153.434[4]
expressly speak in terms of when a grandparent "may request" or "may not request" access or possession,
and therefore address the right to file an access suit.  See Tex. Fam. Code Ann. '' 153.432, 153.434.  By
contrast, section 153.433 outlines when "[t]he court shall order" possession or access.  See id. ' 153.433.

Not surprisingly, Texas courts consistently have held that a grandparent's standing to request access is
conferred by section 153.432, not 153.433: "Section 153.432 of the family code does give grandparents
standing to petition the court for access to or possession of a child.  Section 153.433 identifies the conditions
under which such possession or access will be granted."  In re H.M.J.H., 209 S.W.3d 320, 322 (Tex. App.-
Dallas 2006, no pet).[5]  Although a successful access suit might require the grandparent to satisfy section
153.433, whether the grandparent ultimately will succeed is a different question than whether the grandparent
has the right simply to bring suit.  See generally In re C.M.C., 192 S.W.3d 866, 869-70 (Tex. App.- Texarkana
2006, no pet.) ("[A] decision concerning whether a party has standing is not a decision deciding the merits of
a case."); In re SSJ-J, 153 S.W.3d at 138 ("[S]tanding does not mean the right to win; it is only a right to be

The Smiths have not cited any authority holding that section 153.433 deals with standing.[6]  In addition, we
note that a grandparent has standing to request managing conservatorship, if both parents consent.  See
Tex. Fam. Code Ann. ' 102.004(a) (Vernon Supp. 2007).  Yet, the Smiths' interpretation of section 153.433
would impose more standing requirements on a grandparent seeking mere access, than one asking for the
more extensive remedy of managing conservatorship.  Under the unambiguous language of section 153.433,
we conclude that this statute does not deal with standing.

Under section 153.432, because Lisa is the child's biological grandparent, she has legal standing to petition
for access.  See Tex. Fam. Code Ann. ' 153.432.  We therefore overrule the Smiths' second issue.

Parental Presumption

Finally, the Smiths contend that the trial court abused its discretion in granting access to Lisa in the
temporary order because she failed to prove that the denial of access to E.R.S. would significantly impair the
child's physical or emotional well-being.[7]  See Tex. Fam. Code Ann. ' 153.433(2).  

At the temporary orders hearing, Lisa testified as follows:

Q.        Do you think it would be in the best interest of this child to allow you to have access to this child?

A.        Yes, it would be.

Q.        Okay.  Have you ever done anything to her that's been negative or harmful to her?

A.        Never.

Lisa further testified that it would be "bad" for, and emotionally damaging to, the child not to have a
relationship with Lisa.  The Smiths argue that this evidence fails to overcome the so-called "parental
presumption" contained in section 153.433(2).

As amended in 2005, section 153.433 now echoes the United States Supreme Court plurality's statement that
a trial court should presume that a fit parent acts in his or her child's best interests.  See Derzapf, 219 S.W.3d
at 333; see also Troxel v. Granville, 530 U.S. 57, 68 (2000).  This statutory parental presumption creates a
"high threshold" for a grandparent who seeks access.  See Derzapf, 219 S.W.3d at 334.  

We hold that the Smiths, as non-parents, may not claim the presumption in this case.

Logically, the plain language of the "parental presumption" limits the application of the presumption to
parents: "the grandparent [must] overcome[] the presumption that a parent acts in the best interest of the
parent's child[.]"  See Tex. Fam. Code Ann. ' 153.433(2) (emphasis added).  The underlying basis for the
presumption is to give effect to the "natural affection usually flowing between parent and child."  See In re
M.N.G., 113 S.W.3d 27, 35 (Tex. App.- Fort Worth 2003, no pet.) (citing In re V.L.K., 24 S.W.3d 338, 341
(Tex. 2002)).  "Parent," as used in section 153.433, is defined as "the mother, a man presumed to be the
father, a man legally determined to be the father, a man who has been adjudicated to be the father by a court
of competent jurisdiction, a man who has acknowledged his paternity under applicable law, or an adoptive
mother or father."  Tex. Fam. Code Ann. ' 101.024 (Vernon Supp. 2007).  

Under the unambiguous statutory language, the Smiths, though joint managing conservators, are not parents.
Though we do not doubt the sincerity of the Smiths' efforts as this child's managing conservators, the
Legislature has not sought to include a statutory presumption that a grandparent acts in the child's best

We decline to extend the parental presumption, a powerful force in custody proceedings, to non-parent
conservators when such an extension would conflict with the plain statutory language.  

We presume that the Legislature says what it means and means what it says.

We overrule the Smiths' third issue.
Best Interests of the Child

Even when the parental presumption does not apply, grandparent access is still subject to the trial court's
determination of the best interests of the child.  See Tex. Fam. Code Ann. ' 153.002 (Vernon 2002).[8]  The
trial court is vested with broad discretion in determining the best interests of a child in family law matters such
as custody, visitation, and possession.  Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982); Lilley v.
Lilley, 43 S.W.3d 703, 705 (Tex. App.- Austin 2001, no pet.).  The trial court does not abuse its discretion if its
decision is supported by sufficient, competent evidence.  See Gillespie, 644 S.W.2d at 451.  The mandamus
record contains evidence that granting Lisa possession of E.R.S. would be in the child's best interest.  
Therefore, the trial court did not abuse its discretion in awarding possession to Lisa in its temporary order.

The Smiths' arguments as to why the trial court abused its discretion in awarding Lisa possession of her
granddaughter lack merit. Therefore, we need not reach the issue of whether the Smiths have an adequate
remedy at law.

Accordingly, we deny the petitions for writ of mandamus.

/s/      Kem Thompson Frost


Petition Denied and Opinion filed, July 3, 2008.

Panel consists of Justices Frost and Seymore, and Senior Justice Price.*


  [1] The Honorable John Phillips, presiding judge of the 314th District Court of Harris County, Texas

  [2] See Harris County Juvenile Trial Div. Loc. R. 3.6 (providing for referral of any case brought under Family
Code titles 1 through 5).

  [3] The parents, who consented to Lisa's suit, have not challenged the temporary orders that suspended
their visitation rights.

  [4] Section 153.434 - which precludes certain grandparents from requesting access under select
circumstances - does not come into play under the facts of this case.  See Tex. Fam. Code Ann. ' 153.434
(Vernon Supp. 2007).

  [5] See also In Re Ricky Derzapf, 219 S.W.3d 327, 331-32 (Tex. 2007) (orig. proceeding) (analyzing a
standing challenge under section 153.432); In re Schoelpple, No. 14-06-01038-CV, 2007 WL 431877, at *2
(Tex. App.- Houston [14th Dist.] 2007, orig. proceeding) (mem. op.) (same); In re Pensom, 126 S.W.3d 251,
255 (Tex. App. -San Antonio 2003, orig. proceeding) ("Because the statute allows only grandparents to
petition for access, the jurisdictional prerequisite of standing serves to ensure that the statutory scheme is
narrowly tailored[.]"); In re Walters, 39 S.W.3d 280, 285 n.1 (Tex. App.- Texarkana 2001, no pet.); Banta v.
Texas Dep't of Family & Protective Svcs., No 13-06-548-CV, 2007 WL 2128901, at *3 (Tex. App.- Corpus
Christi 2007, no pet.) (mem. op.).

  [6] The Smiths direct us to In re B.N.S., in which the Dallas Court of Appeals held that a trial court abused its
discretion in granting access to grandparents that had not satisfied section 153.433.  247 S.W.3d 807, 809
(Tex. App.- Dallas 2008, no pet.).  However, B.N.S. is not a standing case.  Holding that one has no right to
prevail on the merits is different than ruling that the losing party had no standing even to file suit.  See In re
SSJ-J, 153 S.W.3d at 138.

  [7] We presume, without deciding, that section 153.433 applies to the trial court's temporary order because
in it the trial court granted Lisa possession of or access to E.R.S.

  [8] See also Banta, 2007 WL 2128901, at *3.

  *Senior Justice Price sitting by assignment.