Petition for Writ of Mandamus Conditionally Granted and Memorandum
Opinion filed August 10, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00851-CV
IN RE S.D, Relator
ORIGINAL PROCEEDING
WRIT OF MANDAMUS
310th District Court
Harris County, Texas
Trial Court Cause No. 2012-69240
MEMORANDUM OPINION
On December 22, 2020, Mother filed a petition for writ of mandamus in this
court. See Tex. Gov’t Code Ann. § 22.221; see also Tex. R. App. P. 52. In the
petition, Mother asks this court to compel the Honorable Sonya Heath, presiding
judge of the 310th District Court of Harris County, to vacate her November 23, 2020
temporary orders. We grant the requested relief.
BACKGROUND
The child, who has Down Syndrome and is a special-needs child, was born in
2008. The child was enrolled in the Arbor School, which is a school for
special-needs children, when he was six months old. About six months later,
Father’s mother (“Grandmother”) moved into Mother and Father’s home to help care
for the child. After Mother and Father separated in 2012, Grandmother continued
to live with Father and the child. Mother and Father were appointed joint managing
conservators of the child when they divorced on March 13, 2013. Father had the
exclusive right to designate the primary residence of the child, and Mother had a
standard possession order.
On August 14, 2017, Mother and Father entered into a mediated settlement
agreement, under which they agreed to remain joint managing conservators, for
Father to continue to have the exclusive right to designate the child’s primary
residence, to modify Mother’s child-support payments, and for Father to have
judgment on child-support arrearages. On September 26, 2017, the trial court signed
two orders: (1) an order in a suit to modify the parent-child relationship; and (2) an
agreed child-support review order. Both orders were consistent with the terms of
the mediated settlement agreement.
Father died on December 22, 2019. Grandmother told Mother about Father’s
death on December 27, 2019, which was during Father’s period of possession.
Mother picked up the child from Grandmother the next day, on December 28, 2019.
Mother was already planning to pick up the child that day because it was her
Christmas visitation pursuant to the standard possession order. The child started
living with Mother at that point. In January 2020, Mother removed the child from
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the Arbor School and enrolled the child in an elementary school close to where she
lived.
On January 9, 2020, Grandmother filed a petition to modify the parent-child
relationship or, alternatively, a petition for grandparent possession or access.1
Grandmother sought to modify the March 13, 2013 final decree of divorce, the
September 26, 2017 order in a suit to modify the parent-child relationship, and the
September 26, 2017 agreed child support review order. Grandmother requested that
she be appointed the person with the exclusive right to designate the primary
residence of the child and that Mother be given a standard possession order.
Alternatively, Grandmother requested that the trial court grant her possession and
access to the child. Grandmother also requested emergency temporary orders,
appointing her and Mother temporary joint managing conservators with
Grandmother having the exclusive right to designate the primary residence of the
child. Grandmother requested a temporary restraining order prohibiting Mother
from, among other things, removing the child from the Arbor School.
On February 13, 2020, the trial court held a hearing and orally announced that
the child would remain in the elementary school, in which Mother had enrolled him,
and Grandmother would have expanded possession. The trial court signed “Bandaid
Temporary Orders” on April 16, 2020.
1
Grandmother asserted standing under Family Code section 102.003(a)(9), which permits
an original suit to be filed by “a person other than a foster parent, who has had actual care, control,
and possession of 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). Grandmother also asserted
standing under section 156.002(b), which provides that “[a] person or entity who, at the time of
filing, has standing to sue under Chapter 102 may file a suit for modification in the court with
continuing, exclusive jurisdiction.” Tex. Fam. Code Ann. § 156.002(b).
3
The trial court held an evidentiary hearing on temporary orders on September
2, 2020, and October 12, 2020. At the conclusion of the hearing, the trial court found
that “it’s in the best interest of the child to stay with mom and for grandma to have
visitation” and appointed Mother sole managing conservator and Grandmother
possessory conservator. Mother objected to the entry of the temporary orders and
moved for reconsideration of those orders. The trial court, on November 23, 2020,
signed the temporary orders appointing Mother temporary sole managing
conservator with the exclusive right to designate the primary residence of the child
and appointing Grandmother nonparent temporary possessory conservator with a
standard possession order.
In this mandamus proceeding, Mother claims that the trial court abused its
discretion by appointing Grandmother temporary possessory conservator over
Mother’s objection as a fit parent.2
STANDARD OF REVIEW
Ordinarily, to be entitled to a writ of mandamus, a relator must show that the
trial court clearly abused its discretion, and that the relator lacks an adequate remedy
by appeal. In re Turner, 591 S.W.3d 121, 124 (Tex. 2019) (orig. proceeding). In
determining whether the trial court clearly abused its discretion, an appellate court
may not substitute its judgment for the trial court’s determination of factual or other
2
Mother also moved to dismiss Grandmother’s petition to modify the parent-child
relationship based on Grandmother’s alleged lack of standing, which the trial court denied on
September 21, 2020. Mother further filed a motion for no-evidence summary judgment the
grounds that Grandmother lacked standing and failed to rebut the fit-parent presumption. The trial
court denied the motion for summary judgment on December 18, 2020. The issue of
Grandmother’s standing is not before this court.
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matters committed to the trial court’s discretion, even if the court would have
decided the issue differently. In re State Farm Lloyds, 520 S.W.3d 595, 604 (Tex.
2017) (orig. proceeding). With respect to questions of law, a trial court has no
discretion in determining what the law is or applying the law to the facts. In re
Geomet Recycling LLC, 578 S.W.3d 82, 91 (Tex. 2019) (orig. proceeding). We
cannot set aside the trial court’s findings as arbitrary and unreasonable unless the
trial court could reasonably have reached only one decision. In re RSR Corp., 568
S.W.3d 663, 665 (Tex. 2019) (orig. proceeding) (per curiam). Temporary orders are
not subject to interlocutory appeal. See Tex. Fam. Code Ann. § 6.507. Therefore,
the November 23, 2020 temporary orders at issue in this proceeding are subject to
mandamus review. See In re C.J.C., 603 S.W.3d 804, 811 (Tex. 2020) (orig.
proceeding).
I. Laches Does Not Bar Mother’s Request for Relief
Grandmother contends that Mother’s request for relief is barred by laches.
Although mandamus is not an equitable remedy, its issuance is largely controlled by
equitable principles, including the principle that equity aids the diligent and not those
who slumber on their rights. Rivercenter Assocs. v. Rivera, 858 S.W.2d 366, 367
(Tex. 1993) (orig. proceeding). Whether a party’s delay in asserting its rights
precludes mandamus relief depends on the circumstances. In re Oceanografia, S.A.
de C.V., 494 S.W.3d 728, 729 (Tex. 2016) (orig. proceeding) (per curiam). In
examining this issue, we consider whether there is any justification for the delay,
whether the party seeking mandamus bears fault for the delay, and whether the delay
has prejudiced the opposing party. See id. at 730–31; see also, e.g., In re Int’l Profit
Assocs., Inc., 274 S.W.3d 672, 675‒76 (Tex. 2009) (orig. proceeding); In re E.I. du
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Pont de Nemours & Co., 92 S.W.3d 517, 524‒25 (Tex. 2002) (orig. proceeding);
Rivercenter Assocs., 858 S.W.2d at 367.
The trial court orally announced at the conclusion of the hearing on October
12, 2020, that it was in the best interest of the child “to stay with mom and for
grandma to have visitation” and set entry by submission for October 23, 2020. On
November 5, 2020, Mother filed her objection to the entry of the temporary orders
and motion for reconsideration of the temporary orders. On November 23, 2020, the
trial court signed the temporary orders.
Grandmother has failed to assert that Mother’s purported delay in seeking
mandamus relief resulted in her detrimental change in position. See Oceanografia,
S.A. de C.V., 494 S.W.3d at 730‒31; see also In re Laibe Corp., 307 S.W.3d 314,
318 (Tex. 2010) (orig. proceeding) (per curiam) (explaining that, to invoke equitable
doctrine of laches, moving party ordinarily must show, among other things,
detrimental change in position because of delay). We need not address whether
Mother unreasonably delayed in seeking relief in this court or whether the delay was
justified. We conclude that Mother’s request for relief is not barred by laches.
II. MOTHER IS ENTITLED TO THE FIT-PARENT PRESUMPTION
The fundamental liberty interest of parents in the care, custody, and control of
their children is of constitutional dimensions. Troxel v. Granville, 530 U.S. 57, 65‒
66 (2000). There is a presumption that fit parents act in the best interest of their
children. Id. at 68. “[S]o long as a parent adequately cares for his or his children
(i.e., is fit), there will normally be no reason for the State to inject itself into the
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private realm of the family to further question the ability of that parent to make the
best decisions concerning the rearing of that parent’s children.” Id. at 68‒69.
Texas similarly recognizes that “[t]he presumption that the best interest of the
child is served by awarding custody to [a] parent is deeply embedded in Texas law.”
C.J.C., 603 S.W.3d at 807 (internal quotation marks and citations omitted). The
presumption that a fit parent acts in the best interest of his or her child applies when
modifying an existing order that names a parent as the child’s managing conservator
and the parent has a “fundamental right to make decisions concerning the care,
custody, and control” of the child. Id. at 808 (quoting Troxel, 530 U.S. at 72).
Therefore, 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. The
question of the degree of evidence necessary to overcome the presumption that a fit
parent’s decisions are in the best interest of the child when a nonparent, who has
acted in a parent-like role, seeks visitation remains unanswered. Id. at 823
(Lehrmann, J., concurring).
Mother asserts that the trial court could not have appointed her sole managing
conservator unless it found that she was a fit parent. Cf. Tex. Fam. Code Ann.
§ 153.131(a) (providing, in original suit affecting parent-child relationship, that
court shall appoint parent sole managing conservator unless court finds that
appointment of parent “would not be in the best interest of the child because the
appointment would significantly impair the child’s physical health or emotion
development”). Therefore, having found Mother to be a fit parent, the trial court had
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no discretion to appoint Grandmother possessory conservator over Mother’s
objection.
Grandmother claims that she rebutted any fit-parent presumption that Mother
may have had as demonstrated by the trial court’s appointment of Grandmother as
possessory conservator. Grandmother asserts that Mother’s removing the child from
the Arbor School and enrolling him in a public school shows that she is not a fit
parent. Grandmother stated that the child “doesn’t learn anything at that public
school” and “their staff is not trained for special needs kids.” Grandmother
explained that she knows this “[b]y reading articles.”
Grandmother believed that if the child remained at the Arbor School, he would
be able to take care of himself when he turns 18, although she admitted that the child
will always need some help after he turns 18. She told the court that she was
requesting that the child be returned to the Arbor School. The Arbor School offered
to allow the child to stay there tuition-free for another semester. However,
Grandmother provided no evidence regarding that she or Mother could afford for the
child to continue at the Arbor School after the one free semester.
Karen Johnson, the child’s occupational therapist at the Arbor School opined
that the education the child is receiving at the public elementary school is not as
good as the education he was receiving at the Arbor. Johnson stated that she knows
in general the services provided in the public schools: public school class sizes are
larger with students of both lower and higher academic and functional abilities in
one classroom and there is less one-on-on teaching. Johnson, however, has not
personally seen the child’s new class at the elementary school.
8
Katy Wallace teaches fundamental skills for students with significant
disabilities at Meridiana Elementary School. Wallace creates individualized and
alternate curricula, which focus on fundamental academics—communications skills,
social skills, and prevocational skills—to help those students be successful in life.
She works closely with a speech therapist, an occupational therapist, and “other
related services personnel.” Wallace testified that, while enrolled in her class, the
child was receiving speech therapy and an occupational therapy evaluation was
performed on him. Wallace described the child’s demeanor:
Oh, [the child] is so, so, so sweet. He jumped right on in to our routine.
He is very, very social. Got along with all of the kids; he made friends
within his first day or two there that he kind of stuck with. Just a very,
very sweet kid. Everyone knew him within a week of him being there;
would tell him hi, and he would say hi back. Just very, very willing to
do whatever was asked of him.
Wallace met Grandmother, who asked about homework. Wallace responded
that there was not specific homework for each child because the children work hard
during the day and she wants the children to relax and spend time with their families.
Grandmother requested that Wallace give the child homework, and Wallace said she
would see what she could do.
When the child started in her class, Wallace had 11 students. She did not see
any regression in the child but saw “a lot of growth just in those few weeks he was
with me.” Wallace testified about the child’s growth she observed:
His abilities to work independently. And I know in the beginning he
was overwhelmed with a lot of change, but he fell into the routine —
he adapted to the routine really, really well and he was able to do a lot
of his work independently, whereas when he first started he kind of
needed a lot of prompting.
9
After the COVID-19 pandemic started, the classes were held online. Wallace
and Mother “kept in very close contact” when the child was in her class both during
in-person and online classes. Mother was very involved with the child. Wallace had
no concerns about the child moving from a private school to a public school.
Grandmother’s testimony that moving the child to a public school was not in
the best interest of the child was not based on any personal knowledge about how
the child is doing in his new school or the curriculum provide to the child. Similarly,
Johnson’s opinion that the education the child is receiving at the public elementary
school is not as good as the education he was receiving at the Arbor is not based on
personal knowledge as she not seen or observed the child’s new class but on her
“general” knowledge of the services provided in public schools. The record does
not reflect that Mother was not acting in the child’s best interest by enrolling him in
a public school.
Grandmother also suggests that Mother’s living with her long-time boyfriend,
Alan, is not in the child’s best interest. Grandmother believes that Mother lacks the
ability to provide a safe environment and place for the child to live.
Mother and Alan have been in a relationship since 2013. Grandmother
testified that Alan has been “very aggressive” with her and has insulted her. From
Mother, Grandmother knew that Mother and Alan had broken up in the fall of 2019,
although Grandmother was not sure of the date. There was an incident in October
2019 when Mother called the police to escort her into the house to retrieve her
belongs. Alan testified that there are no plans in the near future for Mother to leave
the house and the court should not being concerned that Mother and the child would
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not have a place to live at any point in the near future. Mother testified that, if Alan
asks her and the child to leave, she can find her own place because she has savings.
Witnesses testified that Alan is good with the child. Aaron Strauss, the child’s
soccer coach in summer of 2019, observed that Mother’s and Alan’s interactions
with the child at soccer games were “positive” and they encouraged him to play.
Wallace also testified that Alan is also very involved with the child. Wallace spoke
to Alan daily because he was responsible for picking up the child from school.
Wallace observed that Alan and the child “had a very unique bond,” which “was
really cool to see”; Alan and the child “were very close”; and Alan was “very, very
good” with the child.
Alan is able to provide for the financial needs of the child and he and Mother
are prepared to pay for the child’s extracurricular activities and has already set up
karate lessons for the child. He is not involved in disciplining the child. The record
does not support Grandmother’s claim that Mother’s relationship with Alan is not in
the child’s best interest.
The trial court’s prior orders never gave Mother’s anything less than joint
managing conservatorship or ordered supervised visitation in the possession orders,
suggesting that the trial court had previously found that Mother is a fit parent. To
find that Mother is an unfit parent, the trial court would have had to reduce Mother’s
conservatorship rights and duties. Based on the record, the only decision the trial
court could have reached is that Mother entitled to the fit-parent presumption.
Grandmother argues that the trial court is authorized to consider her as a
possessory conservator. See Shook v. Grey, 381 S.W.3d 540, 543 (Tex. 2012) (per
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curiam) (“If [grandmother] fails to overcome that the presumption that a parent
should be named managing conservator on remand, the trial court may still name
[grandmother] as a possessory conservator or grant her access that would be in
G.W.’s best interest.”). However, the Texas Supreme Court’s decision in C.J.C.
forecloses consideration of Grandmother as possessory conservator over a fit
parent’s objection. See 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.”); see also id. at 822 (Lehrmann, J., concurring)
(discussing holding in Shook, but reiterating holding that even when nonparent with
standing seeks possessory conservatorship or access rather than or in alternative to
managing conservatorship, best-interest determination necessarily encompasses
constitutionally required deference to fit parent’s decisions).
Because Grandmother did not overcome the fit-parent presumption that
Mother acts in the best interest of the child, the trial court abused its discretion by
appointing Grandmother possessory conservator over Mother’s objection.
Moreover, Mother does not have an adequate remedy by appeal. Mandamus is
appropriate when the trial court abuses its discretion by permitting a nonparent
possession of a child over a fit parent’s objection. See id., at 811; see also In re
Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding) (per curaim) (“The
temporary orders here divest a fit parent of possession of his children, in violation
of Troxel’s cardinal principle and without overcoming the statutory presumption that
the father is acting in his children’s best interest. Such a divesture is irremediable,
and mandamus relief is therefore appropriate.”).
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III. Mother Did Not Request That Grandmother Be Named Possessory
Conservator
Grandmother claims that the trial court’s appointment of her as possessory
conservator is consistent with Mother’s desire that Grandmother have access to the
child based on the following testimony by Mother at the September 2, 2020 hearing:
Q Okay. And, again, did you ever tell her that she couldn’t
see the child, if there was any limitations on her being able to
communicate --
A No, I never did.
Q And do you believe that it’s in the best interest of the child
that [the child] maintain some type of relationship with [Grandmother]?
A Yes.
Q And has it ever been your desire to prevent him from
having a relationship with her?
A No.
....
Q (By Mr. Torres) So do you believe that it’s in the best
interest of your son that you be the only conservator of the child?
A Yes.
Q And at this point, are you asking the Court to grant some
type of grandparent access to Mrs. Alvarez?
A Some.
....
Q Do you believe that it’s in the best interest of the child to
be with you as primary conservator?
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A Yes.
Q And do you believe it’s in the best interest of the child to
continue having a relationship with his grandmother?
A Well, of course.
After Grandmother filed a petition to modify the parent-child relationship or,
alternatively, a petition for grandparent possession or access, Mother filed an
answer, which included motion to dismiss for lack of standing and, alternatively,
that Grandmother must show that Mother is an unfit parent, which Grandmother had
not done. Mother also asserted that she had not restricted Grandmother’s possession
of or access to the child.
On July 1, 2021, Mother filed a motion to dismiss for lack of standing. Mother
argued, alternatively, that Grandmother would have to overcome the fit-parent
presumption to be appointed managing or possessory conservator under the Texas
Supreme Court’s decision in C.J.C. Similarly, on July 8, 2021, Mother filed a no
evidence motion for summary judgment on the grounds that Grandmother lacks
standing and that Grandmother cannot overcome the presumption that Mother is a
fit parent.
During closing statements, Grandmother’s counsel argued for appointing
Grandmother as primary conservator with Mother having visitation or, alternatively,
that Grandmother continue to have visitation. Grandmother’s counsel did not argue
that Mother wanted Grandmother to be appointed possessory conservator.
Mother testified that she should be the only conservator. Mother’s counsel
argued that Grandmother had not overcome the fit-parent presumption and “should
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not get any type of conservatorship” pursuant to C.J.C. Mother’s counsel further
stated that Mother was not opposed to Grandparent access.
The trial court announced at the conclusion of the hearing that Mother it was
in the best interest of the child “to stay with mom and for grandma to have
visitation.” Based on C.J.C., Mother objected to the entry of the temporary orders
appointing Grandmother possessory conservator and move for reconsideration of
those temporary orders because Grandmother had not rebutted the fit-parent
presumption. The trial court subsequently signed the order directing that
Grandmother, as possessory conservator, have many of the same rights and duties
as Mother.3
Mother contends that her desire to maintain some visitation is not consent to
Grandmother’s appointment of possessory conservatorship with a standard
3
The temporary orders provide Mother and Grandmother each with the right (1) to receive
information from any other conservator of the child concerning health, educations, and welfare of
the child; (2) to confer with the other conservator to the extent possible before making a decision
concerning the health, education, and welfare of the child; (3) of access to medical, dental,
psychological, and educational needs of the child; (4) to consult with a physician, dentist, or
psychologist of the child; (5) to consult with school officials concerning the child’s welfare and
educational status, including school activities; (6) to attend school activities, including school
lunches, performances, and field trips; (7) to be designated on the child’s records as a person to be
notified in case of an emergency; (8) to consent to medical, dental, and surgical treatment during
an emergency involving an immediate danger to the health and safety of the child; and (9) to
manage the estate of the child to the extent the estate has been created by the parent or the parent’s
family.
The trial court ordered that their respective periods of possession, Mother and Grandmother
each had the following rights and duties: (1) duty of care, control, protection, and reasonable
discipline of the child; (2) the duty to support the child, including providing the child with clothing,
food, shelter, and medical and dental care not involving an invasive procedure; (3) the right to
consent for the child to medical and dental care not involving an involving an invasive procedure;
and (4) the right to direct the moral and religious training of the child.
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possession order. We agree. Mother testified that she: (1) never denied
Grandmother possession or access to the child; (2) never told Grandmother that she
could not see or communicate with the child; and (3) never desired to prevent the
child from having a relationship with Grandmother. Instead, Mother stated that she
believed it is in the child’s best interest to continue to have a relationship with
Grandmother. However, Mother has consistently, throughout the modification
proceedings asserted that she was entitled to the fit-parent presumption as to
Grandmother’s requests for appointment as managing conservator or, alternatively,
possessory conservator.
CONCLUSION
We hold that the trial court abused its discretion by appointing Grandmother
possessory conservator and Mother does not have an adequate remedy by appeal.
Accordingly, we grant Mother’s mandamus relief and direct the trial court to vacate
its November 23, 2020 temporary orders. We are confident the trial court will act
in accordance with this opinion and we will not need to order the clerk of this court
to issue a writ of mandamus. Mother’s motion for expedited consideration is
dismissed as moot. Our January 7, 2021 stay of proceedings is lifted.
PER CURIAM
Panel consists of Justices Bourliot, Zimmerer, and Spain.
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