In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-20-00283-CV
___________________________
IN RE B.F.
On Appeal from the 393rd District Court
Denton County, Texas
Trial Court No. 18-9884-393
Before Sudderth, C.J.; Kerr and Womack, JJ.
Memorandum Opinion by Justice Kerr
MEMORANDUM OPINION
In this original proceeding, relator B.F. (Father) seeks mandamus relief from a
temporary order naming real party in interest B.B. as a possessory conservator of F.F.
and V.C. (“the Children”). Because the trial court clearly abused its discretion and
because Father lacks an adequate remedy by appeal, we conditionally grant mandamus
relief and order the trial court to vacate its September 10, 2020 “Temporary Order.”
I. Background
Father and K.F. (Mother) are the parents of the Children. In 2018, Father filed
a divorce action against Mother. Shortly after that divorce action was filed, the trial
court signed a temporary order naming Father and Mother as joint managing
conservators of F.F. V.C. was born in 2019, and after V.C.’s birth, the trial court
signed a temporary order naming Father and Mother as joint managing conservators
of both F.F. and V.C.
B.B. intervened in the lawsuit on August 12, 2020, and filed a request for a
temporary restraining order. B.B. is unrelated to the Children. B.B. asserts in her
response1 that the Children “have lived with [her] for the entirety of the court case,”
and that Mother lived with her before and during parts of the underlying court case.
1
After Father filed his petition for writ of mandamus, we requested a response
and temporarily stayed the September 10, 2020 “Temporary Order.” See Tex. R. App.
P. 52.8(b)(1), 52.10(b). B.B. filed a document titled “Real Party B.L.B[.] Answer to
Emergency Motion for Temporary Relief by Relator,” which we construe as B.B.’s
response.
2
In her request for a temporary restraining order, B.B. asserted that Mother had
mental-health problems and had physically abused F.F. in the past. The trial court
granted the temporary restraining order, scheduled a hearing to take place on August
25, 2020, and ordered Mother and Father not to remove the Children from B.B.’s
possession until that hearing. In its docket notes pertaining to that order, the trial
court noted that it had “concerns over appropriateness of continued placement with
either parent or [B.B.].” 2
The temporary order complained of by Father in this mandamus proceeding
resulted from the August 25, 2020 hearing. In that temporary order, Father and
Mother were named as joint managing conservators of the Children, and Father was
given the right to designate the primary residence of the Children during the pendency
of the case. B.B. was named a possessory conservator and awarded possession during
the second and fourth weekends of each month and during certain weeks in the
summer. The temporary order also allowed for B.B. to have 15-minute video
2
The trial court’s docket notes state
Entered TRO prohibiting [Mother] from removing children from
possession of [B.B.] but only after trying to contact [Father] and
[M]other at both her last known place of work and at Samaritan Inn;
and only after contacting . . . CPS and making report to CPS as court
had concerns over appropriateness of continued placement with either
parent or [B.B.]. Entered this order on emergency interim basis as
limited options available to court at this time.
3
conference calls with the Children on Monday and Wednesday evenings. Through this
mandamus proceeding, Father asks us to vacate the temporary order.
II. Discussion
A. Standard of Review
We grant the extraordinary relief of mandamus only when the trial court has
clearly abused its discretion and the relator lacks an adequate appellate remedy. In re
Team Rocket, L.P., 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding); see In re State,
355 S.W.3d 611, 613 (Tex. 2011) (orig. proceeding).
A trial court abuses its discretion if it reaches a decision so arbitrary and
unreasonable that it is a clear and prejudicial error of law or if it fails to correctly
analyze or apply the law to the facts. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302–03
(Tex. 2016) (per curiam) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839–40
(Tex. 1992) (orig. proceeding); see also State v. Naylor, 466 S.W.3d 783, 793 (Tex. 2015)
(orig. proceeding) (“A writ of mandamus is an extraordinary remedy available ‘to
correct an action of a trial judge who commits an abuse of discretion or a violation of
a clear duty under the law.’” (quoting State v. Walker, 679 S.W.2d 484, 485 (Tex. 1984)
(orig. proceeding))). We defer to a trial court’s factual determinations that have
evidentiary support, but we review the trial court’s legal determinations de novo. In re
Labatt Food Serv., L.P., 279 S.W.3d 640, 643 (Tex. 2009) (orig. proceeding).
4
B. Did the Trial Court Clearly Abuse Its Discretion?
Father contends that the Texas Supreme Court’s recent decision in In re C.J.C.
is controlling and requires us to grant him mandamus relief. See 603 S.W.3d 804 (Tex.
2020).
In C.J.C., the trial court named a father and mother joint managing
conservators of their daughter. Id. at 808. The mother later became involved in a
relationship with a boyfriend, and the mother and daughter eventually moved into the
boyfriend’s home. Id. The mother later died, and the daughter began living exclusively
with the father. Id. The boyfriend later intervened in the lawsuit and requested that he
be given certain conservatorship rights to the daughter. Id. at 809. The trial court
entered temporary orders naming the boyfriend as a possessory conservator of the
daughter. Id. at 810. The father filed a petition for writ of mandamus that was denied
by the court of appeals. Id. The father then petitioned the Texas Supreme Court. Id.
The Texas Supreme Court began its analysis by discussing certain fundamental
precepts regarding a parent’s rights to their children. It cited Troxel v. Granville, 530
U.S. 57, 120 S. Ct. 2054 (2000), for the proposition that the United States
Constitution “protects the fundamental right of parents to make decisions concerning
the care, custody, and control of their children.” Id. at 807 (citing Troxel, 530 U.S. at
66, 120 S. Ct. at 2060). It noted that this recognition stemmed from “a strong
tradition of parental concern for the nurture and upbringing of their children.” Id. at
811 (citing Wisconsin v. Yoder, 406 U.S. 205, 232, 92 S. Ct. 1526, 1541 (1972)). It also
5
recognized that the government may not “infringe on the fundamental right of
parents to make child rearing decisions simply because a state judge believes a better
decision could be made.” Id. at 807 (citing In re Derzapf, 219 S.W.3d 327, 333 (Tex.
2007) (per curiam)) (internal quotations omitted).
With these general precepts in mind, the Texas Supreme Court then turned to
the father’s petition for writ of mandamus and held that “[w]hen a nonparent requests
conservatorship or possession of a child, the child’s best interest is embedded with the
presumption that it is the fit parent—not a court—who makes the determination
whether to allow that request.” Id. at 820. The court noted that no party had alleged,
no evidence had demonstrated, and no court finding existed that the father was unfit
to be the daughter’s parent. Id. Nor were there any findings rebutting the presumption
that the father acted in his daughter’s best interest. Id. Accordingly, the court held that
the trial court had abused its discretion by ordering that the boyfriend be named the
child’s possessory conservator and granted mandamus relief. Id.
Here, we have a situation that largely mirrors the facts of C.J.C. Father has been
named a joint managing conservator and objects to B.B.—a nonparent—being named
a possessory conservator and awarded certain possession and access to the Children.
The only question left to decide relates to Father’s fitness as a parent.
In his petition, Father states that “no evidence was presented to the Trial Court
that [he] is anything but a fit parent.” In her response, B.B. does not specifically argue
6
that Father is an unfit parent although she lists out several “facts” for us to consider.
We will briefly address the “facts” that appear to implicate Father’s fitness.3
B.B. avers that Father “has abused methamphetamines for two long periods in
his life” although she has provided no evidence to support that statement, nor has she
provided any evidence to suggest that Father is currently abusing drugs. B.B. claims
that there is an active CPS case against Father’s girlfriend stemming from an incident
where the girlfriend’s child allegedly tested positive for methamphetamine after Father
and the girlfriend used it in the child’s presence, and she attached what was purported
to be a docket sheet from that CPS case. Even if we were to consider that docket
sheet as evidence,4 it does not mention Father and provides nothing to impugn
Father’s fitness as a parent. B.B. also states that F.F. tested positive for drugs “due to
[Father’s] drug abuse history,” and she attached to her response a printout of the
results of a drug test that she claims was put into evidence before the trial court. That
3
Several of the “facts” listed by B.B. appear to implicate Mother’s fitness. It is
Father, however, who has objected to the temporary order. We will thus address only
the “facts” that appear to implicate Father’s fitness.
4
We note that docket sheets are generally not evidence. See Gonzalez v. Sanchez,
No. 07-16-00289-CV, 2018 WL 1054795, at *4 (Tex. App.—Amarillo Feb. 23, 2018,
no pet.) (mem. op.); Davis v. West, 433 S.W.3d 101, 109 (Tex. App.—Houston [1st
Dist.] 2014, pet. denied); but c.f. Tex. Fam. Code Ann. § 101.026 (providing that trial
court may render an order in a suit affecting the parent-child relationship “on the
court’s docket sheet”). We also note that Father has objected to the docket sheet from
the CPS case and objected to other documents attached to B.B.’s response. None of
the objected-to documents provides evidence that Father is unfit. Thus, even if we
considered the objected-to documents, our result would not change.
7
drug-test result reflects that F.F. tested positive for marijuana. 5 But other than B.B.’s
bald assertion, nothing indicates that this drug-test result was due to some action by
Father; indeed, the sample for the drug test was collected in August 2019, and
according to B.B., F.F. was living with her at that time.
B.B. also claims that Father went “long periods” without seeing the Children,
but she provides no evidence to support that contention and points only to a nine-day
period in 2019 when the Children were living with her. She also contends that Father
“has not paid for court[-]ordered child support for the entirety of the court case”
although the evidence she points to—a docket sheet from this case—does not reflect
that Father actually missed any child-support payments. Finally, B.B. states that Father
and Mother have not been joint managing conservators for the entirety of the case,
again pointing to the docket sheet to support that statement. We have reviewed the
docket sheet, and nothing in it indicates that anyone other than Father and Mother
have been named as joint managing conservators in this case.
We have not found any evidence in the record before us to indicate that Father
is an unfit parent. There are also no findings in the record to indicate that Father is
unfit. To the contrary, Father has consistently been named a joint managing
conservator in this case, including in the temporary order in which B.B. was named a
possessory conservator. Because there is no evidence or finding that Father is unfit, it
5
The result was negative for amphetamines.
8
is Father, and not the trial court, who is to determine whether to allow B.B.
conservatorship or possession of the Children. See C.J.C., 603 S.W.3d at 820 (“When a
nonparent requests conservatorship or possession of a child, the child’s best interest is
embedded with the presumption that it is the fit parent—not a court—who makes the
determination whether to allow that request.”). The trial court thus abused its
discretion when it named B.B. a possessory conservator and awarded her certain
possession and access to the Children.
C. Does Father Have an Adequate Remedy by Appeal?
Mandamus relief is available when a trial court erroneously permits a nonparent
possession of a child over a fit parent’s objection. See id. at 811; Derzapf, 219 S.W.3d at
334–35; In re Calkins, No. 09-11-00531-CV, 2011 WL 4975008, at *3 (Tex. App.—
Beaumont Oct. 20, 2011, orig. proceeding) (mem. op.) (per. curiam) (“Because
temporary orders that divest fit parents of possession of their child are irremediable,
mandamus relief is appropriate.”). Because the trial court has named B.B. as a
possessory conservator over Father’s objection, Father lacks an adequate remedy by
appeal. 6
III. Conclusion
Because the trial court clearly abused its discretion and Father has no adequate
remedy by appeal, Father is entitled to mandamus relief. Accordingly, we conditionally
6
In her response, B.B. does not suggest that Father has an adequate remedy by
appeal.
9
grant a writ of mandamus and direct the trial court to vacate its September 10, 2020
“Temporary Order.” See Tex. R. App. P. 52.8(c). Our writ will issue only if the trial
court fails to comply.
/s/ Elizabeth Kerr
Elizabeth Kerr
Justice
Delivered: October 15, 2020
10