IN THE SUPREME COURT OF TEXAS

IN THE SUPREME COURT OF TEXAS

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No. 06-0669

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In re Ricky Derzapf, = Relator

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On Petition for Writ of = Mandamus

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PER = CURIAM

In = 2005, the=20 Legislature substantially amended the grandparent access statute, = codified at=20 Family Code sections 153.432-34. The statute now includes a presumption = that a=20 parent acts in his child=92s best interest, and it permits biological or = adoptive=20 grandparents to obtain court-ordered access to a grandchild only if they = show=20 that denial of access will =93significantly impair the child=92s = physical health or=20 emotional well-being.=94 Id. =A7 153.433(2). We conclude that the = trial court=20 abused its discretion in awarding access here because the = step-grandfather is=20 neither a biological nor an adoptive grandparent, and the grandmother = did not=20 overcome the statutory presumption favoring the children=92s father. We=20 conditionally grant mandamus relief.

Ricky and=20 Jennifer Derzapf were married in the mid-1990s. They had two sons, = B.G.D.,[1] age 15, and A.J.D., age 10, = as well as=20 one daughter, J.B.D., age 6. Jennifer died of leukemia on June 3, 2001. = During=20 the summer months immediately following Jennifer=92s death, Connie and = Randy=20 Johnson helped Ricky care for the children. Connie is Jennifer=92s = mother and the=20 children=92s grandmother; Randy is Connie=92s husband and the = children=92s=20 step-grandfather. During the first few months, Connie and Randy were the = children=92s primary caregivers. This arrangement was necessitated by = Ricky=92s work=20 schedule, especially shortly after Jennifer=92s death. Initially, Ricky = and the=20 Johnsons worked cooperatively on the children=92s behalf. On most = nights, Ricky=20 joined the Johnsons and his children for dinner at the Johnsons=92 = home.

Once the=20 school year began, however, Ricky attempted to reassert himself as the=20 children=92s primary caregiver=97especially for the two older boys. = B.G.D. and=20 A.J.D. began spending most nights at home with Ricky. Tension between = Ricky and=20 the Johnsons increased during this time. The Johnsons perceived Ricky as = emotionally aloof and a negative influence on B.G.D. in particular; = Ricky=20 believed that Connie was assuming the role of mother instead of = grandmother,=20 directly undermining his influence and authority over the children.[2] Later, Ricky wanted to keep = J.B.D.=20 overnight and on weekends, but the Johnsons preferred a more gradual = transition.=20

On = May 6,=20 2003, Connie and Randy filed an original suit affecting the = parent‑child=20 relationship (SAPCR) seeking custody of the children and requesting that = they be=20 appointed sole managing conservators. The Johnsons alleged that Ricky = endangered=20 the children and significantly impaired their physical health and = emotional=20 development, and they obtained an ex parte temporary restraining order=20 preventing Ricky from obtaining possession of the children. After a = hearing, the=20 trial court dissolved the temporary restraining order and returned the = children=20 to their father=92s conservatorship. The trial court noted in its May = 22, 2003=20 letter ruling:

The=20 evidence at the temporary orders hearing was not =93satisfactory = proof=94 that the=20 father=92s home raises a serious question concerning the children=92s = physical=20 health and welfare.

The main=20 concern of the Johnsons focused on Ricky Derzapf=92s =93neglect=94 of = the children,=20 based on his allowing the children to spend so much time with their=20 grandparents, and the services provided by Connie Johnson in taking the = children=20 to doctor and dentist visits, picking them up from school when sick, = etc. I do=20 not see this arrangement as neglectful in any way. It appears that this = was a=20 mutually agreed upon arrangement following the death of the children=92s = mother=20 which has been a benefit to everyone involved =97 the children, the = father and the=20 grandparents. There was no testimony that the Johnsons ever objected to=20 providing these services, or that they asked Mr. Derzapf to take on more = of the=20 responsibilities. If they had done so, I believe he would have stepped = up to the=20 plate.

The trial=20 court held that the Johnsons, as grandparents, "lack[ed] standing to be=20 appointed as Sole Managing Conservators or Joint Managing Conservators = of the=20 children under section 102.004(a)(1) of the Texas Family Code=94 because = there was=20 no evidence that Ricky=92s care of the children created =93serious = question[s]=20 concerning [their] physical health or welfare=94 as Family Code section = 102.004(a)=20 required.[3] The trial court dismissed = the case=20 without prejudice on June 4, 2003.

After the=20 Johnsons filed the SAPCR, Ricky discontinued their access to the = children.=20 According to Ricky, over the next twelve to eighteen months the children = began=20 to heal from their depression spurred by their mother=92s death and the = ongoing=20 tension between the Johnsons and him. Ricky took the children to = counseling, and=20 they have since been released from the counselor=92s care because of = their=20 progress in coping with their depression, as evidenced by their social = and=20 academic success in school and by the fact that B.G.D. and A.J.D. are no = longer=20 on antidepressant medications.

Connie and=20 Randy filed a petition for grandparent access on March 10, 2004. The = trial court=20 appointed Dr. Mark R. Otis, a psychologist, to evaluate Connie, Randy, = the=20 Johnsons=92 sons,[4] Ricky, and the children and = to advise=20 the court whether the Johnsons should have access. On October 14, 2005, = the=20 trial court held an evidentiary hearing. Dr. Otis testified, and his = report was=20 admitted into evidence. The twenty-four page report, prepared after = interviewing=20 all parties, concluded:

It is my=20 opinion that the children will benefit from renewed contact with their = mother=92s=20 family. While the children have certainly benefitted from being pulled = away from=20 Connie=92s untoward communications, the children=92s loss of relatedness = to the=20 entire Johnson family has added to the children=92s feeling of loss = following=20 their mother=92s death. I have specific concern, however, that Connie is = at risk=20 to dominate contact with the children and to project her experiences=20 inappropriately on the children, thereby undermining both Ricky=92s = position and=20 the ability of other Johnson family members to relate fully to the = children.=20 Additionally, Ricky and the Johnsons have highly polarized views of the=20 situation and one another. Their conflict is now highly intractable and = will not=20 yield easily to change.

Dr. Otis=20 recommended family therapy for Connie, Randy, and their sons, in which = the=20 primary focus would involve family members =93learning how to monitor, = coach,=20 restrain and help Connie: 1. block inappropriate communications or = questions to=20 the children about their father or faith matters, 2. respect = interpersonal and=20 family boundaries, and 3. be mindful to others=92 relational needs = rather than=20 being so focused on her own.=94 He recommended that the children have = visitation=20 with only Randy and the Uncles, until such time as Connie=92s = therapist=20 determined that she was ready to join family outings. Alternatively, he=20 recommended that the Johnsons and the Uncles have access to the children = for one=20 full day every two months.

At = the=20 hearing, Dr. Otis testified that the children had formed attachments to = the=20 Johnsons, and it would =93not be healthy to cut them off.=94 He = testified that=20 B.G.D. and A.J.D. had a =93lingering sadness=94 about their lack of = contact with the=20 grandparents, but that it was =93not manifested as depression or = behavioral=20 problems or acting out=94 and that it did not =93rise to a level of = significant=20 emotional impairment.=94

On = February=20 1, 2006, the trial court signed temporary orders granting the Johnsons = and the=20 Uncles visitation [5] on Thanksgiving Day and the = first=20 Saturday of each month.[6] On July 7, 2006, the trial = court=20 issued amended temporary orders stating that: (1) Connie and Randy had = standing;=20 (2) denying access would significantly impair the children=92s physical = health or=20 emotional well-being; (3) Connie and Randy, but not the Uncles, were = granted=20 visitation with the children during part of Thanksgiving day and on the = first=20 Saturday of each month and could attend the children=92s extracurricular = activities; and (4) the Uncles could pick up and return the children = during=20 these visits.

Ricky sought=20 mandamus relief. After granting his motion for temporary relief and = staying the=20 trial court=92s order, the court of appeals denied the mandamus petition = in a per=20 curiam memorandum opinion. __ S.W.3d __. For the reasons expressed = below, we=20 conditionally grant mandamus relief and direct the trial court to vacate = its=20 amended temporary orders of July 7, 2006.

Initially, we=20 must determine whether Randy Johnson, the children=92s step-grandfather, = has=20 standing to pursue grandparent access.[7] =93Possession of or access = to a child by=20 a grandparent is governed by the standards established by Chapter = 153.=94 Tex. Fam. Code =A7 = 102.004(c). Ricky=20 argues that chapter 153 applies only to =93biological or adoptive = grandparents,=94=20 and because Randy is neither, he lacks standing to seek access. Tex. Fam. Code =A7 = 153.432(a). The=20 Johnsons disagree, citing three reasons Randy should have standing to = bring a=20 suit for grandparent access. First, they argue that although subsection=20 153.432(a) states that a =93biological or adoptive grandparent=94 may = file a suit=20 for possession or access to their grandchildren, subsection 153.432(b) = refers=20 only to =93a grandparent=94 as opposed to a =93biological or adoptive = grandparent,=94[8] and thus even non-biological = or=20 adoptive grandparents may seek access under subsection (b). Compare = id. =A7=20 153.432(a), with id. =A7 153.432(b).

We = disagree.=20 Subsection (b) merely clarifies the circumstances in which a grandparent = may=20 request the possession or access described in subsection (a); it does = not=20 redefine who may seek access. =93[C]ourts should not give an undefined = statutory=20 term a meaning out of harmony or inconsistent with other provisions, = although it=20 might be susceptible of such a construction if standing alone.=94 = Texas=20 Dep=92t of Transp. v. Needham, 82 S.W.3d 314, 318 (Tex. 2002). = Because Randy=20 is not a biological or an adoptive grandparent, he lacks standing to = seek=20 grandparent access under section 153.432 of the Family Code.

Second, the=20 trial court concluded that Randy had =93general=94 standing to file a = suit for=20 access to the grandchildren under section 102.003(a)(9) of the Family = Code.[9] Randy argues that his = original suit=20 was filed on May 6, 2003, and it is undisputed that he and his wife had = care,=20 control, and possession for at least six months ending not more than = ninety days=20 before they filed suit. That suit, however, was dismissed, and Ricky = argues that=20 because the Johnsons did not file another petition until March 2004, = that date=20 should govern for purposes of determining section 102.003(a)(9) = standing.

Regardless of=20 whether Randy satisfied section 102.003(a)(9)=92s general standing = requirements=20 for filing a SAPCR=97an issue we do not reach=97the trial court awarded = access based=20 on the standards set forth in section 153.433, the grandparent access = statute.=20 As set forth above, Randy does not meet the more specific standing = requirements=20 to pursue a claim under that section. Concluding that Randy had standing = under=20 section 102.003(a)(9) when access was granted based on chapter 153 would = permit=20 an end run around the requirements of section 153.432(a), a result the=20 Legislature cannot have intended.[10] See Horizon/CMS = Healthcare Corp.=20 v. Auld, 34 S.W.3d 887, 901 (Tex. 2000) (noting =93the traditional = statutory=20 construction principle that the more specific statute controls over the = more=20 general=94).

Finally, the=20 Johnsons argue that Randy has a justiciable interest sufficient to = confer=20 standing, based on In re C.T.H., 112 S.W.3d 262, 265-66 (Tex.=20 App.=96Beaumont 2003, no pet.). That case, however, did not involve the=20 grandparent access statute but was instead a child custody dispute = between the=20 child=92s parents, in which the father sought to modify a prior custody = order. The=20 maternal grandparents intervened, alleging that they had had care, = control, and=20 possession of the child for at least six months, and requesting that = their=20 daughter (the children=92s mother) retain her role as =93primary=94 = joint managing=20 conservator, and alternatively, that they be named =93primary=94 joint = managing=20 conservators. C.T.H., 112 S.W.3d at 265. Based on the pleadings = and the=20 evidence, the trial court concluded that the grandparents had a = justiciable=20 interest in the controversy.

We = face a=20 different situation here. The grandparent access statute explicitly sets = forth=20 who may sue for access, and Randy did not meet those criteria. We cannot = conclude that he has a justiciable interest in the controversy = sufficient to=20 override the statutory text permitting only biological or adoptive = grandparents=20 to seek access pursuant to the standards set forth in section 153.433. = We=20 conclude that the trial court abused its discretion in concluding that = Randy had=20 standing and in ordering that he have access to the children.

III

We = now turn=20 to whether the trial court abused its discretion in awarding Connie = access=20 pursuant to section 153.433. The Legislature recently amended the = grandparent=20 access statute, effective September 1, 2005, changing the requisite = standard for=20 a grandparent to obtain court-ordered access to a grandchild. = Previously, the=20 statute permitted grandparent access if it was in the =93best interest = of the=20 child.=94 Act of Apr. 6, 1995, 74th Leg., ch. 20, =A7 1, 1995 Tex. Gen. = Laws 113,=20 157, amended by Act of May 27, 2005, 79th Leg., R.S., ch. 484, = 2005 Tex.=20 Gen. Laws 1345. As amended, section 153.433 now echoes the United States = Supreme=20 Court=92s plurality opinion in Troxel, 530 U.S. at 68, that a = trial court=20 must presume that a fit parent acts in his or her child=92s best = interest. Tex. Fam. Code =A7 153.433. = As we=20 recently recognized, "so long as a parent adequately cares for his or = her=20 children (i.e., is fit), there will normally be no reason for the = State=20 to inject itself into the private realm of the family.=94 In re=20 Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (quoting Troxel, = 530=20 U.S. at 68); see also Troxel, 530 U.S. at 72-73 (noting that the=20 constitution =93does not permit a State to infringe on the fundamental = right of=20 parents to make child rearing decisions simply because a state judge = believes a=20 =91better decision=92 could be made=94).

Section=20 153.433(2) requires that a grandparent seeking court-ordered access = overcome the=20 presumption that a parent acts in his or her child=92s best interest by = proving by=20 a preponderance of the evidence that =93denial . . . of access to the = child would=20 significantly impair the child=92s physical health or emotional = well‑being.=94 Tex. Fam. Code =A7 = 153.433(2). A trial=20 court abuses its discretion when it grants access to a grandparent who = has not=20 met this standard because =93=91[a] trial court has no =91discretion=92 = in determining=20 what the law is or applying the law to the facts[,]=92 even when the law = is=20 unsettled.=94 In re Prudential Ins. Co. of Am., 148 S.W.3d 124, = 135 (Tex.=20 2004)(first alteration in original) (footnotes omitted).=20

To = succeed on=20 her claim then, Connie must overcome the statutory presumption that = denying the=20 children access to her in particular=97not Connie and Randy jointly or = the Johnson=20 family as a whole=97would significantly impair the children=92s physical = health or=20 emotional well-being. Tex. = Fam.=20 Code =A7 153.432(2). Connie argues that unlike = Mays-Hooper, there is=20 sufficient evidence to prove that denying her access to her = grandchildren would=20 cause the grandchildren=92s emotional well-being to suffer, and she = urges us to=20 consider Dr. Otis=92s testimony in support of her argument.

While it is=20 true that Dr. Otis believed the children would benefit from renewed = contact with=20 the Johnson family, he did not testify that denying Connie access to her = grandchildren would significantly impair the children=92s physical or = emotional=20 health. Dr. Otis=92s testimony pertained either to both Connie = and Randy or=20 to the Johnson family as a whole, but his recommendations do not support = renewed=20 contact with Connie alone. To the contrary, Dr. Otis noted that Ricky = had a=20 reasonable interest in preserving =93the children=92s hard-won feelings = of peace and=20 security=94 regained after contact with Connie ceased.

Dr. = Otis=92s=20 report concluded that the children should first have renewed contact = with Randy,=20 then with the Uncles and extended family, and only later with Connie. = Dr. Otis=20 testified that his recommendation =93was based on the strength that I = perceived=20 that the grandfather, Randy has.=94 In fact, Dr. Otis testified that he = could not=20 recommend visitation with Connie, absent supervision, as Connie=92s = problems=20 controlling her impulses could be =93very influential=94 and detrimental = to the=20 children.

And = while Dr.=20 Otis testified that it may be harmful for Ricky to cut off the = Johnsons=92 access=20 to B.G.D. in particular and that it was in the children=92s best = interest that=20 they have some contact with their grandparents, his testimony does not = support=20 awarding Connie access over Ricky=92s objection. According to Dr. Otis, = =93[t]he=20 manner in which she resisted the children transitioning to [Ricky=92s] = full-time=20 care interfered with the children=92s emotional and behavioral = adjustment.=94 He=20 also concluded that Connie actively attempted to alienate B.G.D. from = his father=20 and that her behavior was =93very damaging=94 to the parent-child = relationship.=20 Moreover, while Dr. Otis noted the children=92s =93sadness=94 at being = unable to see=20 their grandparents, he admitted that these feelings did not rise to the = level of=20 a significant emotional impairment.

The = Legislature set a high threshold for a grandparent to overcome the = presumption=20 that a fit parent acts in his children=92s best interest: the = grandparent must=20 prove that denial of access would =93significantly impair=94 the = children=92s=20 physical health or emotional well-being. Tex. Fam. Code =A7 153.433(2) = (emphasis=20 added). There has been no such showing here. A court may not lightly = interfere=20 with child-rearing decisions made by Ricky=97a fit parent by all = accounts=97simply=20 because a =93better decision=94 may have been made. Troxel, 530 = U.S. at=20 73.

Finally, we=20 must consider whether Ricky has an adequate appellate remedy. = Determining=20 whether a party has an adequate remedy by appeal requires a =93careful = balanc[ing]=20 of jurisprudential considerations=94 that =93implicate both public and = private=20 interests. . . . When the benefits [of mandamus review] outweigh the = detriments,=20 appellate courts must consider whether the appellate remedy is = adequate.=94 In=20 re Prudential, 148 S.W.3d at 136. We have noted:

Mandamus=20 review of significant rulings in exceptional cases may be essential to = preserve=20 important substantive and procedural rights from impairment or loss, = allow the=20 appellate courts to give needed and helpful direction to the law that = would=20 otherwise prove elusive in appeals from final judgments, and spare = private=20 parties and the public the time and money utterly wasted enduring = eventual=20 reversal of improperly conducted proceedings.

Id.=20 &= nbsp; =20

We = have=20 previously granted mandamus relief to require a trial court to vacate = its=20 temporary orders granting grandparent access. In re Mays-Hooper, = 189=20 S.W.3d at 778. A grandparent=92s rights are generally subordinate to a = parent=92s.=20 See Tex. Fam. = Code =A7=20 153.433(2); see also Troxel, 530 U.S. at 64-65 (plurality = opinion)=20 (discussing how statutory rights extended to grandparents and other = relatives=20 can create a substantial burden on a parent=92s traditional role in a = child=92s=20 upbringing). As the Troxel plurality stated, =93=91[i]t is = cardinal . . .=20 that the custody, care and nurture of the child reside first in the = parents.=92=94=20 Troxel, 530 U.S. at 65 (plurality opinion) (quoting Prince v.=20 Massachusetts, 321 U.S. 158, 166 (1944)). Troxel also = recognized that=20 =93the interest of parents in the care, custody, and control of their = children=97is=20 perhaps the oldest of the fundamental liberty interests recognized by = [the=20 Supreme] Court [of the United States].=94 Id.

The = temporary=20 orders here divest a fit parent of possession of his children, in = violation of=20 Troxel=92s cardinal principle and without overcoming the = statutory=20 presumption that the father is acting in his children=92s best interest. = Such a=20 divestiture is irremediable, and mandamus relief is therefore = appropriate. In=20 re Mays-Hooper, 189 S.W.3d at 778; see also Little v. = Daggett, 858=20 S.W.2d 368, 369 (Tex. 1993) (granting mandamus relief to vacate trial = court=92s=20 temporary order granting visitation in suit to establish paternity); = Dancy v.=20 Daggett, 815 S.W.2d 548, 549 (Tex. 1991) (holding that mandamus was = an=20 appropriate remedy because =93the trial court=92s issuance of temporary = orders [was]=20 not subject to interlocutory appeal=94); accord In re = Francis, 186=20 S.W.3d 534, 538 (Tex. 2006) (stating that a writ of mandamus may be = appropriate=20 for reviewing a temporary injunction); In re Newton, 146 S.W.3d = 648,=20 651-52 (Tex. 2004) (conditionally granting mandamus relief and noting = that =93a=20 temporary restraining order is generally not appealable=94).

Without=20 hearing oral argument, we conditionally grant mandamus relief and direct = the=20 trial court to vacate its July 7, 2006 amended temporary orders.[11] Tex. R. App. P. 52.8. We are = confident=20 that the trial court will promptly comply; our writ will issue only if = it does=20 not.

OPINION=20 DELIVERED: March 23, 2007

^[1] Although B.G.D. is not Ricky=92s biological = son, Ricky=20 adopted him.

^[2] As an example, he cites a letter Connie wrote = to=20 B.G.D., noting that once B.G.D. turned seventeen, he could =93move out = of [his]=20 dad=92s house [and] never go back . . . .=94

^[3] Section 102.004(a) was amended, effective = September 1,=20 2005. The version of the statute in effect when the trial court issued = its June=20 4, 2003 order provided, in relevant part:

[A] grandparent may file an original suit = requesting=20 managing conservatorship if there is satisfactory proof to the court=20 that:

(1) the order requested is necessary because = the child=92s=20 present environment presents a serious question concerning the child=92s = physical=20 health or welfare

Act of Apr. 6, 1995, 74th Leg., R.S., ch. 20, = =A7 1, 1995=20 Tex. Gen. Laws 113, 157, amended by Act of May 27, 2005, 74th = Leg., R.S.,=20 ch. 489, 2005 Tex. Gen. Laws 1345.

^[4] The Johnsons=92 three sons (collectively, the = =93Uncles=94)=20 were among those interviewed by Dr. Otis.

^[5] The Uncles were not parties to the=20 suit.

^[6] On June 12, 2006, the trial court heard = Ricky=92s motion=20 to dismiss. At the hearing, Ricky=92s lawyer stated that Ricky would be = inclined=20 to grant some type of access to the children, but not court-ordered = access and=20 only access that could be directed and supervised by Ricky =93under his = rights as=20 a parent to oversee the interaction with the grandparent.=94 The trial = court has=20 not ruled on the motion.

^[7] We note that standing was among the factors = considered=20 by the United States Supreme Court in concluding that Washington=92s = grandparent=20 access statute was unconstitutional. See Troxel v. Granville, 530 = U.S.=20 57, 67, 72 (2000) (plurality opinion)(noting the =93breathtakingly = broad=94 scope of=20 the Washington statute at issue, which permitted =93any person=94 to sue = for access)=20 (citation omitted).

^[8] Family Code section 153.432 = provides:

(a) A biological or adoptive grandparent = may=20 request possession of or access to a grandchild by filing:

(1)=20 an original suit; = or

(2)=20 a suit for = modification=20 as provided by Chapter 156.

(b)=20 A grandparent may = request=20 possession of or access to a grandchild in a suit filed for the sole = purpose of=20 requesting the relief, without regard to whether the appointment of a = managing=20 conservator is an issue in the suit.

Tex. Fam. = Code =A7 153.432 (emphasis = added).

^[9] Family Code section 102.003(a)(9) states, = =93An original=20 suit may be filed at any time by a person, other than a foster parent, = who has=20 had actual care, control, and possession of the child for at least six = months=20 ending not more than 90 days preceding the date of the filing of the = petition.=94=20 Tex. Fam. Code =A7=20 102.003(a)(9).

^[10] This is not to say that grandparents may not = seek=20 conservatorship by satisfying chapter 102=92s standing = requirements.=20 See, e.g., Tex. Fam. = Code=20 =A7 102.003(a)(9) (authorizing suits by any =93person, other than = a foster=20 parent=94 who has had actual care, control, and possession of the child = for a=20 designated period); id. =A7 102.004(a) (authorizing a grandparent = to file=20 an original suit seeking managing conservatorship under certain = circumstances).=20 Possession and access, however, are governed by chapter = 153.=20 Id. =A7 102.004(c).

^[11] Because the trial court abused its discretion = in=20 ordering access pursuant to section 153.433(2) of the Family Code, we do = not=20 reach Ricky=92s constitutional concerns nor whether the trial court = abused its=20 discretion in granting the Johnsons possession of, as opposed to access = to, the=20 children.