NO. 07-12-00402-CV
IN THE COURT OF APPEALS
FOR THE SEVENTH DISTRICT OF TEXAS
AT AMARILLO
PANEL A
DECEMBER 3, 2012
IN RE: BRADLEY EARL ROBERTS, RELATOR
Before CAMPBELL and HANCOCK and PIRTLE, JJ.
ON PETITION FOR WRIT OF MANDAMUS
Relator Bradley Earl Roberts (the father) has filed a petition seeking a writ of
mandamus compelling respondent, the Honorable Jack M. Graham, associate judge of
County Court at Law Number Two of Randall County, to vacate a temporary order. The
order concerns K.R.R., the daughter of the father and the mother Audra Marie Roberts,
and was issued after the Texas Department of Family and Protective Services was
appointed temporary managing conservator of K.R.R. It conditionally provided for the
child’s maternal grandparents to have weekend visitation with K.R.R. Real parties in
interest, the Department and the mother, have filed responses to the petition. We will
deny the father’s petition.
Background
In a July 29, 2009 divorce decree the court appointed the father and the mother
joint managing conservators of K.R.R. The mother was granted the right to designate
the child’s primary residence without geographic restriction. In December 2011, the
father filed a motion to modify requesting a geographic restriction limiting the primary
residence of K.R.R. to Randall County.
During January 2012, K.R.R. allegedly made outcries of abuse by the mother. A
report was made to the Department. A January 12, 2012 temporary order granted the
Department temporary managing conservatorship and K.R.R. was placed with her
paternal grandparents. The Department intervened in the pending suit affecting parent-
child relationship (SAPCR) through a pleading containing alternative counts that
included a request for termination of the parent-child relationships between K.R.R. and
the father and the mother.
In a temporary order of January 24 issued after a full adversary hearing, 1 the trial
court found:
(1) There was a danger to the physical health or safety of the child which
was caused by an act or failure to act of the person entitled to possession
and for the child to remain in the home is contrary to the welfare of the
child; (2) the urgent need for protection required the immediate removal of
the child and reasonable efforts consistent with the circumstances and
providing for the safety of the child, were made to eliminate or prevent the
child’s removal; and (3) reasonable efforts have been made to enable the
child to return home, but here is a substantial risk of a continuing danger if
the child is returned home. . . . The court finds the appointment of the
parent or parents as managing conservator of the child is not in the best
interest of the child because the appointment would significantly impair the
child’s physical health or emotional development.
The order also named the Department temporary managing conservator of
K.R.R. with all the rights and duties set forth in Family Code § 153.371. Among these
are the right of physical possession of K.R.R., the right to designate her primary
1
Tex. Fam. Code Ann. § 262.201 (West Supp. 2012).
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residence, and the duty of care, control and protection of the child. Tex. Fam. Code.
Ann. § 153.371(1),(2),(10) (West 2008). The appointment of the Department obligated
the parties and the trial court to try or dismiss the Department’s termination suit within
one year. Tex. Fam. Code Ann. § 263.401(a) (West 2008). The trial court later referred
the matter to Judge Graham.
On June 14, 2012, Judge Graham conducted a permanency hearing. A
Department conservatorship worker testified to a proposed visitation arrangement
between the mother and K.R.R. under the supervision of the mother’s parents. The
worker pointed out that the father had visitation with K.R.R. under the supervision of his
mother. In the opinion of the worker, visitation between the mother and K.R.R., under
the supervision of the mother’s parents, was in the best interest of K.R.R. After the
hearing, Judge Graham’s order included the following:
The Court finds that neither the child’s parents nor any other person or
entity entitled to service under Chapter 102, Texas Family Code is willing
and able to provide the child [K.R.R.] with a safe environment, and
therefore return of the child to a parent or other person or entity is not in
the child’s best interest; The child continues to need substitute care and
the child’s current placement is appropriate for the child’s needs.
***
The Court finds that the following plans or services are needed to meet
the child’s special needs or circumstances:
***
After a background check has been completed on all the residents in the
maternal grandparents’ home, and if there are no concerns by the
Department, the maternal grandparents shall have visitation with [K.R.R.]
on the first and third Friday of each month. Said visitation shall begin on
Friday at 6:00 p.m. and end the following Sunday at 6:00 p.m.
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The order set January 14, 2013 as the case dismissal date with the next permanency
hearing set for October 1, 2012, and trial set for January 3, 2013.
Analysis
In this proceeding, the father contends Judge Graham’s conditional order of
access to K.R.R. by the maternal grandparents constituted a clear abuse of discretion.
The father’s only basis for that contention is that the maternal grandparents neither filed
pleadings seeking access to K.R.R. as required by Family Code § 153.432 nor
possessed a prior order granting them a right of access or visitation.
Mandamus will issue only to correct a clear abuse of discretion or the violation of
a duty imposed by law when there is no adequate remedy by appeal. Walker v. Packer,
827 S.W.2d 833, 839-40 (Tex. 1992); see In re Prudential Ins. Co. of Am., 148 S.W.3d
124, 135-36 (Tex. 2004) (explicating adequate remedy by appeal). A trial court clearly
abuses its discretion when it reaches a decision so arbitrary and unreasonable as to
amount to a clear and prejudicial error of law or if it clearly fails to correctly analyze or
apply the law. In re Olshan Found. Repair Co., 328 S.W.3d 883, 888 (Tex. 2010) (orig.
proceeding); Walker, 827 S.W.2d at 839. “A trial court has no ‘discretion’ in determining
what the law is or applying the law to the facts.” Walker, 827 S.W.2d at 840.
Mandamus may be an appropriate means of challenging an otherwise unappealable
temporary order. In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (orig. proceeding)
(per curiam).
The father’s argument is unpersuasive, primarily because it ignores the change
in the proceedings before the trial court that resulted from the Department’s intervention
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in the parents’ SAPCR and its appointment as temporary managing conservator of the
child. Chapter 153 of the Family Code, under which the parents were litigating their
disagreements, “is the primary source of law for a SAPCR involving litigation between
the parents of a child.” John J. Sampson, Harry L. Tindall, et al., Sampson & Tindall’s
Texas Family Code Annotated, Chapter 153 Introductory Comment, p. 567 (Aug. 2012
ed.). “Possession of or access to a child by a grandparent is governed by the standards
established by Chapter 153.” Tex. Fam. Code Ann. § 102.004(c) (West 2008); In re
Chambless, 257 S.W.3d 698, 700 (Tex. 2008). The grandparent access statute is
codified at Family Code §§ 153.432-34. In re Derzapf, 219 S.W.3d at 328. Section
153.432 authorizes a grandparent to file an original suit seeking access to a grandchild
“without regard to whether the appointment of a managing conservator is an issue in the
suit.” In re Schoelpple, No. 14-06-01038-CV, 2007 Tex. App. Lexis 902, at *5 n.6
(Tex.App.--Houston [14th Dist.] 2007, orig. proceeding) (mem. op.). But chapter 153
does not direct disposition of the issue at hand since the subject of the trial court’s order
is not the mother’s parents’ standing under that chapter to intervene and seek
possession or access to K.R.R.
These proceedings no longer involve only the parents, or even only the parents
and grandparents. With the child’s removal and the Department’s intervention, the
proceedings also involve the governmental entity’s responsibility to protect the health
and safety of the child, addressed in Family Code Chapters 262 and 263. The
Department’s duties as the child’s temporary managing conservator include that of
securing for the child a safe alternative placement, if at all possible outside the foster
care system. See Sampson & Tindall, Comment, Family Code § 262.114, p. 1065
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(“The legislature continues to push [the Department] to identify, locate, evaluate and, if
at all possible, place the child with a relative or other caregiver outside the foster care
system”). Nothing in Chapters 262 or 263 suggests that relatives with whom the
Department places a child under those chapters are limited to those affirmatively
seeking judicial possession or access to the child, and relator’s petition does not
contend the trial court’s order for visitation with the maternal grandparents, made at the
Department’s behest, contravenes any provision of Chapters 262 or 263.
At the permanency hearing, the court was required to, inter alia, return K.R.R. to
her parents if the statutory conditions were satisfied, and to “evaluate the [Department’s]
efforts to identify relatives who could provide the child with a safe environment, if the
child is not returned to a parent . . . .” Tex. Fam. Code Ann. § 263.306(a)(5),(6) (West
Supp. 2012). The record indicates the trial court performed this function. Finding
reunification not in the best interest of K.R.R., it found the plans and services necessary
to meet her special needs included visitation with the maternal grandparents.
The father has not demonstrated Judge Graham abused his discretion simply by
permitting weekend visitation by grandparents who have not intervened in the
proceeding. Accordingly, we deny his petition for mandamus.
James T. Campbell
Justice
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John Bentley v. State
Combined Opinion