Texas = Judiciary Online

IN THE SUPREME COURT OF TEXAS

═════════_= 52;══

No. 04-1040

═════════_= 52;══

In re Karen=20 Mays-Hooper

═════════_= 52;══════════= ══════════ = 552;══════════= ;══════════&#= 9552;

On Petition for Writ of=20 Mandamus

═════════_= 52;══════════= ══════════ = 552;══════════= ;══════════&#= 9552;

PER=20 CURIAM

Justice Willett did not = participate in the decision.

In=20 Troxel v. Granville, 530 = U.S. 57=20 (2000), the Supreme Court of the United States held = unconstitutional a=20 Washington trial court=92s order granting a boy=92s grandparents = visitation=20 rights over the objection of his mother. Because the trial = court=92s order=20 here is indistinguishable, it must meet the same fate.

The=20 subject of these proceedings is a son born to Karen = Mays‑Hooper and her=20 husband Kelly Hooper in 1997. The couple divorced in 2000, and = Kelly died=20 in 2003. After Kelly=92s death, conflicts arose between Karen and = her=20 mother-in-law, Linda Thornton, resulting in a suit by the latter = for=20 court‑ordered access to the child. See Tex. Fam. = Code ' 153.432. The = trial=20 court rejected Karen=92s claims that the statute was = unconstitutional and=20 awarded her mother-in-law =93possession=94 of the child for one = weekend a=20 month, two weeks in the summer, four days during Christmas = vacation, and=20 alternating Thanksgiving weekends, as well as access through = weekly=20 telephone calls. A panel of the Second Court of Appeals voted 2-1 = to deny=20 relief, and the entire court voted 4-3 to deny the motion for = rehearing=20 en banc. We reach the opposite conclusion.

The=20 facts in Troxel are in all = relevant=20 respects the same as those here. In Troxel, the father of two daughters = died, and=20 his parents sought court-ordered visitation over the mother=92s = objection.=20 The trial court ordered visitation one weekend per month, one week = during=20 the summer, and four hours on each grandparent=92s birthday.

The=20 Supreme Court found the trial court=92s order unconstitutional, = although=20 none of the six opinions garnered a majority. A plurality of four = justices=20 found the visitation statute in Troxel=20 unconstitutional as applied, pointing to three factors: (1) = the=20 child=92s mother was not unfit, (2) her decisions about = grandparent access=20 were given no deference, and (3) she was willing to allow some = visitation.=20 Troxel, 530 = U.S. at=20 68-71. The plurality declined to say when a visitation statute = would=20 violate the Due Process Clause facially, as =93the constitutional=20 protections in this area are best =91elaborated with care.=92=94 = Id. at=20 73 (quoting id. at 101 (Kennedy, J., dissenting)). Justice = Souter concurred in the judgment, but would = have held=20 the statute unconstitutional on its face. Id. at 76-77. = Justice=20 Thomas concurred in the judgment, noting only that neither party challenged the Court=92s = substantive-due-process=20 jurisprudence, and that he would have applied a = strict-scrutiny=20 standard of review. Id.=20 at 80. Justices Stevens, Scalia, and=20 Kennedy each dissented in different opinions for different = reasons.=20 Id. at = 80-102.

We need=20 not sort out all the opinions in Troxel;=20 because the facts here are virtually the same, the judgment must = be the=20 same too. In this case (as in Troxel)=20 there was no evidence that the child=92s mother was unfit, no = evidence that=20 the boy=92s health or emotional well-being would suffer if the = court=20 deferred to her decisions, and no evidence that she intended to = exclude=20 Thornton=92s access completely.

Thornton = attempts to=20 distinguish Troxel in = two=20 respects. First, she points out that the Texas statute applies = only to=20 grandparents related to a parent who has lost access (due to = termination=20 of rights, incompetency, = incarceration, or=20 death), and thus is not as broad as the one in Troxel that allowed =93[a]ny person=94 at =93any time=94 to seek = visitation.=20 Id.=20 at 60. But as the statute in Troxel was unconstitutional = as=20 applied to the specific context of grandparents related to a = deceased=20 father, it is hard to see why a statute limited to that context = would fare=20 any better.

Thornton=20 also argues that the trial court =93gave special weight to = Karen=92s=20 determinations for the child,=94 but points to nothing other than = the trial=20 court=92s careful attention to her testimony. Karen articulated = several=20 reasons for not wanting to turn her son over to her mother-in-law=20 (differences about church attendance, what to say about Kelly=92s = death, and=20 alleged inattention by her mother-in-law), which the trial court=20 apparently rejected without stating any reason. =93[S]o long as a = parent=20 adequately cares for his or her = children=20 (i.e., is fit), there will normally be no reason for the = State to=20 inject itself into the private realm of the family. . . .=94 = Id.=20 at 68. The trial court did not indicate any reason why = that=20 rule should not be followed here.

As the=20 statute at issue here has since been amended,[1] we decline the parties=92 = invitation=20 to analyze the repealed statute more extensively. As the parties = agree=20 mandamus relief is appropriate if the trial court=92s temporary = orders were=20 a clear abuse of discretion, we grant it. See Little v. = Daggett,=20 858 S.W.2d 368, 369 (Tex. = 1993).

Without hearing oral argument, Tex. R. App. P. 52.8(c), we = conditionally grant mandamus relief and direct the trial court to = vacate=20 its order of September 21, 2004 granting grandparent possession. = We are=20 confident that the trial court will promptly comply, and our writ = will=20 issue only if it does not.

OPINION=20 DELIVERED: April 7, 2006

^[1] Act of=20 May 27, 2005, 79th Leg., R.S., ch. = 484, 2005=20 Tex. Gen. Laws=20 1345.