in Re: C.D.C

Dissenting Opinion Filed February 2, 2021

In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-20-00983-CV

IN RE C.D.C., RELATOR

Original Proceeding from the 439th Judicial District Court
Rockwall County, Texas
Trial Court Cause No. 1-15-698

DISSENTING OPINION
Before Justices Pedersen, III, Carlyle, and Garcia
Dissenting Opinion by Justice Pedersen, III
In a Chapter 156 modification proceeding, may a trial court (i) increase a

parent’s possession and for the first time designate the parent as the primary

conservator yet (ii) simultaneously, implicitly find that parent unfit and award

conservatorship and possessory rights to a nonparent?

This case is a SAPCR modification dispute over the trial court’s temporary

orders (i) designating the child’s maternal grandparents (“Grandparents”) as

nonparent managing conservators, (ii) awarding Grandparents possession and access

to the child, and (iii) designating Mother as a joint managing conservator after

Mother admitted to being an unfit parent, unable to care for the child. Father asserts

that the trial court abused its discretion by entering these orders over his objections.
The Majority engages in the same understandable and laudable error as the trial court

in its consideration and application of In re C.J.C.1 Undeniably, the record shows

the trial court’s belief that Grandparents’ actions have been positive.2 The trial court

and the Majority resolve Grandparents’ ordered conservatorship and possession and

access as in the best interest of the child. But in light of In re C.J.C., I conclude

(i) the record does not contain sufficient evidence to rebut the fit-parent presumption

for Father and (ii) the trial court made no finding as to Father’s unfitness. Both the

trial court, and now the Majority, have merely decided that the nonparent would be

a better choice as the child’s custodian. Accordingly, I respectfully dissent from the

decision not to request a response from Real Parties in Interest, and I respectfully

dissent from the order denying mandamus relief.3

I. BACKGROUND

A. Procedural History

On March 8, 2016, the trial court entered an “Order Establishing the Parent-

Child Relationship,” (“SAPCR Order”) which designated Mother and Father as joint

managing conservators of the child. This SAPCR Order designated Mother as the

conservator with the exclusive right to designate the primary residence of the child.

1
See In re C.J.C., 603 S.W.3d 804, 820 (Tex. 2020).
2
Judge Rakow states in the closing of the August 17, 2020 temporary orders hearing, “[Grandparents]
did everything that they should have done and more, and my hats off to them for what they’ve done.”
3
We must request a response from real parties in interest before we may grant a mandamus petition.
TEX. R. APP. P. 52.4 (“The court must not grant relief—other than temporary relief—before a response has
been filed or requested by the court.”).

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The SAPCR Order granted Father standard possession of the child under the Texas

Family Code. This SAPCR Order did not designate any rights or duties to the child’s

grandparents, and no grandparents are mentioned therein. This SAPCR Order had

not been modified prior to the filing of the current proceeding.4

On May 6, 2020, Father filed his modification suit on the grounds that Mother

“voluntarily relinquished the primary care and possession of the child to another

person for at least six months.” Father resides in Houston, Texas. Father petitioned

to be appointed sole managing conservator with the right to designate the primary

residence of the child.

On May 22, 2020, Grandparents filed a Petition in Intervention, which

asserted standing under Texas Family Code § 102.003(a)(9).5 Grandparents reside

in the Rockwall area with the child. Grandparents petitioned to be appointed Joint

Managing Conservators with the exclusive right to designate the primary residence

of the Child or, alternatively, as sole managing conservators. Grandparents alleged

Father and Mother had engaged in a history or pattern of child neglect.

4
The parties, including Grandparents, sought to modify the SAPCR Order from 2016 to 2018, but those
proceedings ended in a nonsuit granted April 27, 2018.
5
Texas Family Code § 102.003(a)(9) provides: “An original suit may be filed at any time by . . . a
person, other than a foster parent, who has had actual care, control, and possession of the child for at least
six months ending not more than 90 days preceding the date of the filing of the petition.” TEX. FAM. CODE
ANN. § 102.003(a)(9). Grandparents alleged Mother and Father consented to voluntary relinquishment of
the child to Grandparents.
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 B. Temporary Orders Hearing

On August 17, 2020, the trial court held a temporary orders hearing. Father

sought to be named temporary sole managing conservator of the child with the

exclusive right to designate the primary residence of the child. Likewise,

Grandparents sought to be named temporary joint managing conservators of the

child with the exclusive right to designate the primary residence of the child.6 Father

objected to Grandparents’ requests for conservatorship and possession and access.

At the conclusion of the hearing, District Judge David Rakow orally rendered

temporary orders:

[W]hat I will do is I will name [the grandparents] as temporary joint
managing conservators with the mother and father. The mother
stipulated, and I’ll agree to her stipulation that she’ll have no
unsupervised visitation with the child except for in her parents’
presence. And then I will give [Father] first, third, and fifth weekends
beginning at the time school lets out, if he wants to come up here earlier
or as late as 6:00. I’ll leave that to work out and then have to return the
child by 6:00 p.m. on Sunday.

The trial court ordered Father to submit to drug testing and agreed to revisit

temporary orders after drug testing. The trial court did not otherwise enter findings

of fact or conclusions of law.

On October 6, 2020—after (i) Father’s motion to reconsider and (ii) receipt

of two sets of clean drug testing results from Father—the trial court entered written

6
Mother joined her parents’ request to name the child’s maternal grandparents as temporary joint
managing conservators with the right to determine the primary residence of the child.
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temporary orders, which designated Mother, Father, and Grandparents as joint

managing conservators (“October Temporary Orders”). These October Temporary

Orders granted Father the exclusive right to designate the primary residence of the

child. These October Temporary Orders granted Mother supervised possession—

under Grandparents’ supervision—and granted Grandparents standard periods of

possession of the child.7 This mandamus followed.

I. ISSUES RAISED ON MANDAMUS

Father raises the following issues in his petition for writ of mandamus:

1. Whether Respondent abused his discretion by appointing Grandparents
as nonparent managing conservators and awarding Grandparents
possession of and access to the child in violation of Father’s
constitutional rights under Troxel, In re C.J.C., and the fit-parent
presumption.

2. Whether Respondent abused his discretion by appointing Mother as a
temporary joint managing conservator when Mother admitted to being
an unfit parent and unable to care for Child.

II. AVAILABILITY OF MANDAMUS REVIEW

To be entitled to the extraordinary relief of a writ of mandamus, relator must

show that the trial court clearly abused its discretion and that he has no adequate

remedy by appeal. See In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135–36

(Tex. 2004) (orig. proceeding). A trial court has no discretion in determining what

7
The Majority concludes that these issues are “moot.” However, the record shows that Grandparents
continue to enjoy conservatorship and possession and access of the child over Father’s objections. Those
Grandparents’ conservatorship and possession and access orders were, as I discuss hereunder, entered as
an abuse of discretion.
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the law is or in applying the law to the facts. See Walker v. Packer, 827 S.W.2d 833,

840 (Tex. 1992) (orig. proceeding). Thus, a clear failure by the court to correctly

analyze or apply the law will constitute an abuse of discretion. Id. This is true even

when the law is unsettled. Huie v. DeShazo, 922 S.W.2d 920, 927–28 (Tex. 1996)

(orig. proceeding). As for assessing the adequacy of an appellate remedy, this Court

balances the benefits of mandamus review against the detriments. In re Essex Ins.

Co., 450 S.W.3d 524, 528 (Tex. 2014) (orig. proceeding) (per curiam). I agree with

and join the Majority’s conclusion that Father has no adequate remedy by appeal.

III. CLEAR ABUSE OF DISCRETION

A. Fit-Parent Presumption

“The best interest of the child shall always be the primary consideration of the

court in determining issues of conservatorship and possession of and access to the

child.” FAM. § 153.002. In 1995, the Texas Legislature added a statutory parental

presumption applicable to original custody determinations:

[U]nless the court finds that appointment of the parent or parents would
not be in the best interest of the child because the appointment would
significantly impair the child’s physical health or emotional
development, a parent shall be appointed sole managing conservator or
both parents shall be appointed as joint managing conservators of the
child.

FAM. § 153.131(a). This is often referred to as the “fit-parent presumption.”8 A fit

parent “adequately cares for his or her children.” In re C.J.C., 603 S.W.3d at 814.

8
See In re C.J.C., 603 S.W.3d at 812.

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(citing Troxel v. Granville, 530 U.S. 57, 68 (2000)). The court can consider each

party’s present fitness to care for the child, including whether either party has a drug

or alcohol problem. See FAM. § 153.134(a)(7); see also, e.g., Strong v. Strong, 350

S.W.3d 759, 766–68 (Tex. App.—Dallas 2011, pet. denied) (affirming judgment in

which Mother was designated conservator with the exclusive right to determine the

primary residence of the child despite evidence of mother’s prior drug use and in

light of evidence that “Mother had successfully battled her drug problem”). The fit-

parent presumption is applied to limit a court’s ability to interfere with the child-

rearing decisions made by a parent who is adequately caring for his or her child. See

In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (citing Troxel, 530 U.S. at 72–73).9

A majority of the Troxel Court found protection for this fundamental right—“perhaps the
oldest of the fundamental liberty interests recognized by this Court”—within the
Fourteenth Amendment. The parties in this case do not disavow that protection. And the
justices in Troxel who might not root this right in substantive-due-process jurisprudence
nevertheless similarly recognized a “fundamental right of parents to direct the upbringing
of their children.”

Texas jurisprudence underscores this fundamental right, and we too recognize that it gives
rise to a “legal presumption” that it is in a child’s best interest to be raised by his or her
parents. Although the best interest of the child is the paramount issue in a custody
determination, “[t]he presumption is that the best interest of the children” is served “by
awarding them” to a parent. Thus, the fit-parent presumption is “deeply embedded in Texas
law” as part of the determination of a child’s best interest.

In re C.J.C., 603 S.W.3d at 812 (internal footnotes omitted).
9
See also In re Mays–Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (“[S]o long as a parent adequately
cares for his or her children (i.e., is fit), there will normally be no reason for the State to inject itself into
the private realm of the family.” (quoting Troxel, 530 U.S. at 68)).

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 In order to overcome the fit-parent presumption, the evidence must do more

than merely raise a suspicion or speculation of possible harm. In re J.R., No. 05-19-

00904-CV, 2020 WL 219315, at *4 (Tex. App.—Dallas Jan. 15, 2020, no pet.)

(mem. op.) (citing In re B.B.M., 291 S.W.3d 463, 467 (Tex. App.—Dallas 2009, pet.

denied)). The burden to overcome the fit-parent presumption is not satisfied by

merely showing the nonparent would be a better choice as custodian of the child. Id.

(citing In re B.B.M., 291 S.W.3d at 467).

In In re C.J.C., the Texas Supreme Court held that the fit-parent presumption

applies to nonparent suits to modify a conservatorship order that appoints a parent

as a managing conservator.10 In re C.J.C., 603 S.W.3d at 820 (in a modification

proceeding, the trial court abused its discretion in ordering—over a parent’s

objection—that a nonparent be named the child’s possessory conservator with rights

and possession of the child). “A court must apply the presumption that a fit parent—

not the court—determines the best interest of the child in any proceeding in which a

nonparent seeks conservatorship or access over the objection of a child’’s fit parent.”

Id. at 817 (emphasis added). However, In re C.J.C. does not give us guidance as to

the degree of evidence necessary to overcome the fit-parent presumption when a

nonparent—who (i) has exercised primary possession of the child and (ii) acted in a

parent-like role (iii) after the parent with primary conservatorship voluntarily

10
“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.” In re C.J.C., 603 S.W.3d at 820.
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relinquished rights to the child—seeks an order of conservatorship or possession and

access of a child. Nevertheless, the existence of the fit-parent presumption

necessarily requires that some evidence that a parent is not fit must be offered to

rebut it. Here, the trial court’s orders and implied findings confirm that Father is a

fit parent.

B. Temporary Orders Regarding Grandparents

The record shows Father objected to Grandparents’ requests for

conservatorship and possession and access. Despite Father’s objection, the trial court

entered temporary orders conferring conservatorship and possession and access

rights to Grandparents. The Texas Supreme Court has made clear that there must be

evidence or a finding rebutting the fit-parent presumption that Father acts in the

child’s best interest. See In re C.J.C., 603 S.W.3d at 820. If there is no such evidence

or finding rebutting the fit-parent presumption, the trial court abused its discretion.

See id.

Mother and Grandparents did not challenge Father’s present fitness as a

parent. The record contains significant evidence that Grandparents have cared for

the child from her birth to the commencement of the current proceeding. Indeed, the

record shows that Grandparents exercised possession and access to the child with

Mother’s consent. However, Grandparents’ adequate care of the child in the past

does not serve to rebut the fit–parent presumption that applies to Father—such

evidence does not show that Father’s “appointment would significantly impair the

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child’s physical health or emotional development.” See FAM. § 153.131(a); In re

C.J.C., 603 S.W.3d at 816, 820.

Furthermore, although it is undisputed that Mother voluntarily relinquished

possession, care, custody, and control of the child to Grandparents, there is no

evidence that Father voluntarily relinquished possession, care, custody, and control

of the child. In alleging Mother’s voluntary relinquishment, Grandparents claim that

Father “consented” to Grandparents’ exercising possession, care, custody, and

control over the child. In discussing that “Mother chose Grandparents’ home as the

child’s residence and relinquished significant parental duties to them,” the Majority

concludes “Father acquiesced in this relinquishment for most of the child’s life.”

Voluntary relinquishment generally requires an affirmative act from the

parent relinquishing possession, care, custody, or control. See, e.g., Chenault v.

Banks, 296 S.W.3d 186, 191 (Tex. App.—Houston [14th Dist.] 2009, no pet.) (in a

suit to confirm arrearages, mother did not affirmatively agree to relinquish

possession and control of son to father simply by agreeing to allow son to attend

boarding school); In re M.P.M., 161 S.W.3d 650, 655 (Tex. App.—San Antonio

2005, no pet.) (assuming without deciding that there must be an affirmative

agreement; mother affirmatively agreed to relinquish possession when she (i) shut

door in child’s face, (ii) told child she should live with father, (iii) did not request

child’s return, and (iv) returned both children to father after the children visited

mother); Norman v. Norman, 683 S.W.2d 548, 550 (Tex. App.—Fort Worth 1985)

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(“[W]e note that ‘relinquish’ means to abandon, to give up, to surrender, or to

renounce. Black’s Law Dictionary, 1161 (5th ed. 1979). To relinquish a child

requires a greater amount of affirmative action than to tolerate or acquiesce in that

child's change of residence.”), judgment rev’d, appeal dismissed, 692 S.W.2d 655

(Tex. 1985).

Here, under the SAPCR Order, Mother held the exclusive right to determine

the primary residence of the child until the October Temporary Orders. The record

contains no affirmative action of voluntary relinquishment from Father. How could

Father acquiesce to relinquishment of a right he did not previously hold? For Father

to change the SAPCR Order, he would be required to obtain a modification. Thus,

under the Majority’s view, was Father required to obtain such modification to avoid

“acquiescing” to relinquishment? Was Father required to obtain an earlier

modification?

Grandmother agreed Father previously exercised possession in accordance

with the orders.11 The record shows Father exercised his summer periods of

possession with the child.12 Furthermore, as of the filing of the suit, Father (i) sought

11
The Majority states “Father’s first unsupervised extended possession occurred when the child was
approximately 4 years old.” However, there has never been an order for “supervised possession” for
Father’s periods of possession. The SAPCR Order does not include such conditions on Father’s standard
possession orders. Father agreed to exercise possession with Grandparents, in lieu of the SAPCR Order.
Does the Majority want to frame these agreed periods of possession against Father?
12
The trial court stated “[Grandparents] didn’t cooperate with [Father] on when his summer possession
would begin, and we had difficulties. I brought y’all in and said it’s going to happen, let’s do the date, and
y’all refused to come to a date.”

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and obtained an issuance of habeas corpus, which directed Grandparents to bring the

child for a hearing to determine whether the child should be returned to Father, and

(ii) sought and obtained a temporary restraining order excluding Mother from

possession.13

There are no findings in the record—either explicit or implied—to indicate

that Father is unfit. Instead, the trial court’s temporary orders suggest that Father is

a fit parent. The trial court’s oral rendition gave Father unsupervised possession of

the child on

first, third, and fifth weekends beginning at the time school lets out, if
he wants to come up here [from Houston] earlier or as late as 6:00 p.m.
I’ll leave that to work out and then have to return the child by 6:00 p.m.
on Sunday.

Subsequently, the October Temporary Orders—entered a mere fifty days after

the August 17, 2020 temporary orders hearing—designated Father as a joint

managing conservator with the exclusive right to designate the child’s primary

residence.14 The record shows the trial court has not—at any point—entered orders

that (i) reduced Father’s conservatorship below joint-managing conservatorship, (ii)

13
The August 17, 2020 hearing occurred as a result of Father’s temporary restraining order and
according extension, thereafter. Although not addressed in evidence, Father’s motions to reconsider and
stay the rendered orders from August 17, 2020, allege that “[t]he child has been in the primary possession
of [Father] continuously since June 12, 2020.”
14
The record shows that the only substantive evidence that the trial court received between the August
temporary orders hearing and the October temporary orders was the two sets of clean drug tests from Father.

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reduced Father’s possession below standard possession,15 or (iii) required Father to

submit to supervised periods of possession. There are no findings in the record to

rebut the fit-parent presumption as applied to Father.

In the context of the trial court’s orders, the contrary position—that the trial

court made a finding that Father was an unfit parent—is not reasonable because such

a determination would necessitate orders regarding Father that (i) reduce his

conservatorship rights and duties, (ii) change his conservatorship designation from

joint-managing conservatorship to possessory conservatorship, (iii) reduce his

periods of possession and access, or (iv) add conditions on possession and access—

such as supervised periods of possession.16 Here, the trial court entered no orders of

that kind and instead granted Father the exclusive right to determine the primary

residence of the child—increasing his periods of possession and access.

Therefore, because neither evidence nor findings exist to rebut the fit-parent

presumption as applied to Father, the trial court clearly abused its discretion in

entering orders over Father’s objection, which (i) designated Grandparents

15
The Texas Family Code provides a standard possession order. FAM. §§ 153.3101-.317. “In a suit,
there is a rebuttable presumption that the standard possession order . . . provides reasonable minimum
possession of a child for a parent named as a possessory conservator or joint managing conservator and is
in the best interest of the child.” FAM. § 153.252.
16
How may we conclude that a trial court determined a parent unfit only to maintain and then increase
that parent’s conservatorship rights and duties and possession and access? If there is a determination that a
parent is not fit, must not orders that in some way reduce the parent’s conservatorship rights and duties or
possession and access follow?
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conservatorship rights to the child and (ii) awarded Grandparents possession and

access of the child. In re C.J.C., 603 S.W.3d at 820.

C. Temporary Orders Regarding Mother

Based on my discussion of the first issue, I pretermit discussion of the second

issue except to observe that the trial court’s temporary orders regarding Mother—

which add supervisory conditions to and reduce her periods of possession—suggest

an implied finding that Mother was unfit.17

IV. CONCLUSION

It is evident from the record that Grandparents have played a substantial role

in caring and providing for the child. But, I maintain that the trial court failed to

follow the requirements of In re C.J.C. in entering conservatorship and possession

and access orders to Grandparents. In my view, the record before us is not sufficient

to overcome the fit-parent presumption that Father enjoys. Furthermore, the trial

court did not make any finding—either explicit or implied—as to Father’s unfitness

as a parent. Since Father objected, the trial court abused its discretion in ordering

conservatorship and possession and access of the child to Grandparents. For those

reasons, I respectfully dissent from our decision not to request a response from Real

17
Mother testified that she was not fit to adequately care for the child, was incapable of ensuring the
child’s personal welfare, and was not capable of supporting or guiding the child. However, is such evidence
sufficient to find her unfit? What quantum of evidence is required? Again, In re C.J.C. does not give us
guidance as to the degree of such evidence.
–14–
Parties in Interest, and I respectfully dissent from the order denying mandamus

relief.

200983f.p05
/Bill Pedersen, III//
BILL PEDERSEN, III
JUSTICE

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