### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-12-00427- CV

In re Sayna C. John son

ORI GINAL P ROCEEDI NG F ROM B ELL COUNTY

M E M O R A N D U M O P I N I O N

Relator Say

na C. J ohnson filed a petition for writ of mandam u s and motion for

emer g ency stay seeking relief from the district court’s temporar y order dated J une 8, 2012, in cause number 246,333-E, In the Interest of S.L.J. and S.P.J. See Tex. R. App. P. 52.1, 52.10(a)

. For the

rea sons that follow, we c onditionally g rant the w rit. This proce eding arose afte r rea l party in interest J anice J ohnson, the g randmother of S.L .J

. and S.P.J ., the children aff ecte d by this case , filed a petition in intervention in the underlying divorce proce eding betwee n rela tor and her now-de cea sed husband, seeking g randpa rent possession

or ac cess. Af

ter one prior continuanc e on Janice’s motion, the parties a ppear ed on May

31, 2012, for a hear ing. Although the exact sequenc e of events is unclea r, the hear ing was not held, the parties

wer e informed that rela tor’s attorney , Bobby Dale Ba rina, neede d to withdraw beca use of a conflict, and the hear ing was rese t by ag ree ment for J une 7, 2012. The following day , J une 1, 2012, Ba rina fi l ed a m o t i o n to withdraw. On J une 5, 1012, rela tor obtained new counsel, Thomas Ba ker, wh o appea red on her behalf at the hearing on J une 7, 2012. Relator did not attend the hearing beca use she wa s out of state on a trip with her children tha t had bee n planned since April.At the hear ing, Ba ker p re s en t ed a motion to substitut e counsel and a motion for continuance

. I n arg uing the motion for continuance , Ba ker stated that he had been reta ined two day s befor e the hear ing and had lear ned af t er b ei ng reta ined that rela tor would not be available for the hear ing. He further stated that althoug h Ba rina appar ently had n o t i n fo rm ed J anice ’s attorney , Christopher Cornish, about rela tor’s trave l plans, rela tor’s attorney in a rela ted matter involving the same pa rties had so infor

med him. The trial court observe d that this was the third setting and that “eve ry body was in
court on May the 31s t and agr eed to this date.” The trial court denied the m otion for continuance and aske d Ba

ker if he wanted the motion for substitut ion g rante d or denied. Ba ker r esponded tha t he was unable to proce ed without his client and wanted Ba rina to appea

r, and the trial court passed the motion and rec essed the hear ing so that Cornish could contac t Ba rina. Upon resumption of the hear ing, Cornish announce d that he had spoken wit h Ba ri n a, wh o had “no opposition to” t he trial court’s g ranting his motion to withdraw. Wit hout Ba ker, Bar ina, or rela tor prese nt, the trial court proce eded to hear evidenc e and, on J une 8, 2012, rendere d a t em p o rary order g ranting J anice possession and ac cess to the c hildren eve ry Thursday evening and eve ry

Sunday afte rnoon. Relator filed a petition for writ of mandamus seeking to vacate the trial court’s temporar y order on the g rounds that the trial court abused its discretion by (1) allowing withdrawa l of rela tor’s counsel and ref

using to continue the case with rela tor not prese nt and unrepr esente d, and (2) g ranting J anice temporar y possession and acc ess by defa ult when the evidenc e was insufficient
to overc ome the statutory presumption that a parent acts in the best interest of the child. See Tex. Fam. Code Ann. § 153.433 (West Supp. 2011). We gr anted r elator’ s motion for emerg ency relief

2by st ay i n g t h e district court’s J une 8, 2012, temporar y order pending consideration of rela tor’s petition and reque sted a re sponse from Janice, whic h we ha ve since rec eived.

We may issue mandamus to corr ect a clea r abuse of discretion for which the rela tor has no adequate reme dy at law. In re Prudential Ins. Co. of Am. , 148 S.W .3d 124, 135 (Tex. 2004) (orig

. proce eding ); W

alker v. Pack

er , 827 S.W .2d 833, 839–40 (Tex. 1992) (orig

. proce eding ). “A trial court ha s no ‘discre tion’ in de termining what the law is or apply ing the law to the fac ts,” and “a clea r failure by the trial cour t to analy ze or apply the law corr ectly will constitute an abuse of discretion, and may result in appellate reve rsal by extraordinary writ.” W alker , 827 S.W .2d at 840. When there is a clea

r abuse of discretion in a temporar y order in a s u i t af

fe ct i ng the pare nt-child rela tionship, mandamus may lie on the basis that there are no appellate reme dies that are considere d adequate. See Tex. Fam. Code Ann. § 105.001(e) (West 2008) (“Te mporary order s rende red under this section are not subject to interlocutory appea l.”). The supreme court has held that when a trial
court abuses its discretion in g ranting g randpa rent temporar

y acc ess over a pare nt’s objection, mandamus relief is appropr iate. See In re Scheller , 325 S.W .3d 640, 643–44, 646 (Tex. 2010) (orig

. proce eding ); In re Derzapf , 219 S.W .3d 327, 334–3 5 (T ex . 2 0 07) (orig. procee ding) ; In re MaysHooper , 189 S.W .3d 777, 778 (Tex. 2006) (orig

. proce eding ). A trial court abuses its discretion in g ranting temporar

y acc ess to g randc hildren when a g randpa rent does not overc ome the presumption contained in section 153.433 of the family code that a pare nt acts in his or her child’s best interest. See Tex. Fam. Code Ann. § 1 5 3

. 4 3 3 (a) (2); see Scheller , 325 S.W .3d at 644. To overc ome the presumption, a g randpa

rent must prove “by a preponde ranc e of the evidenc e that denial of

. . . acc ess

3to the child would signific antly impair the child’s phy sical health or emotional well-be ing.” Tex.

Fam. Code Ann. § 153.433 (a) (2).

I n In re Scheller , the g randpa re n ts prese nted evidenc e of behavior s rela ted to the g randc hildren’s mental and phy sical health—that they display ed ang er and experience d i n s tance s of bed wetting and nightmar es—and opinion testimony by witnesses to their interac tion with the g randpa re n t s , t heir only materna l rela tives, that deny ing acc ess would impair their development. 335 S.W .3d at 643. The supreme court held that this e vidence was insufficient to me et the burden
set out in section 153.433. Id. Simi larly , in In re Derzapf , a doctor testified t hat the childre n had “ling ering sadness” from lack of c o n ta c t w ith the g randpa rents, that they would benef it from rene wed
contac t, and that it may be harmful for the pare nt to cut off the g randpa rents’ a cce ss. 219 S.W .3d
at 330, 333–34. The supreme court held that his testimony did not o v er come the statutory presumption and did not support awa rding the g randmother

acc ess over the fathe r’s objection. Id. at 334. Her e the o n l y wi t n esses wer e J anice and a nurse who car ed for rela tor’s husband during his last illness. J anice testified that rela tor had not allowed her to see her g randc hildren since her son’s death, that she believes “something is wrong ” with rela tor beca use “one minute she’s okay and the next minute she just g oes off,” and that she believes it is harmful to keep the children awa y from their fathe r’s family

. The nurse testified about her interac tions with rela tor and her limit ed interac tions with the children. She stated that rela tor had sent text messag es t o h er husband that 1

The rec ord contains evidenc e of only one instance in which the nurse met with or interac ted 1 with the children. 4“made no sense” and that she believed there is “something mentally wrong with” rela tor. She also

stated her opinion that it would be harmful to the children if they are continued to be denied acc ess to their g randmother

.

J anice did not satisfy her burden to be g rante d acc ess. This evidenc e is not sufficie nt to satisfy the “he fty

statutory burden” of sec tion 153.433. See I n re Scheller , 335 S.W .3d at 643. Her e, there is no evidenc e about the children’ s phy sical health or emotional we l l -b ei n g. J anice ’s testimony consisted primarily of her assessments of rela tor’s behavior and descr iptions of instances of her interac tions with her g randc hildren. The mere opinion of J anice , as an interested, nonexpert witness that she should be g rante d acc ess does not over come the sta tutory presumption or support the court’s interfe renc e with rela tor’s ri gh t s as a pare nt. See Svoboda v. Svoboda , No. 03-09-00189- CV, 2 0 0 9 T ex . App. L EXI S 7739, at *23 (Tex. App.—Austin Oct. 1, 2009, no pet.). Nor does the testimony of the nurse overc ome the presumption. There was no evidenc e that she had observe d the children with the g randmother or spent any time with the children, other than being prese nt during one visit to see their dad in the hospital, and she offe red no testimony reg arding their behavior or phy sical and emotional healt h other than to state her opinion that it would be “har mful” to deny

J anice acc ess. The leg islature set a hig h threshold for a g randpa rent to over come the pr esumption that a parents act in the best interest of his or her child by requiring that g randpa rent to prove th at denial of a cce ss would “ signifi cantly impair” the c hild’s phy sical hea lth or emotional well-be ing. See Tex. Fam. Code Ann. § 153.433 (a) (2) (empha sis added) ; In re Derzapf , 219 S.W .3d at 334. On the rec ord befor e us, we con cl u d e t h at J anice has failed to satisfy her statutory burden. See Tex.

5Fam. Code Ann. § 153.433 (a) (2); In re Scheller , 335 S.W .3d at 643; In re Derzapf , 219 S.W .3d at 334. We there fore conclude that the di strict court clearly abused i t s d iscretion by failing to apply the law corr ectly

. See Tex. Fam. Code Ann. §153.433; W alker , 827 S.W

. 2 d at 8 4 0. We conditionally g rant mandamus relief and direc t the trial court to va cate its tempora ry order of J une 8, 2012, g ranting g randpa rent acc ess. T h e wr i t wi l l issue only if the district court fails to take

2 appropr iate ac tion in accor dance with this opi nion.

__________________________________________ Melissa Goodwin, Jus tice

Be fore Chief J ustice Jones, J ustices Rose and Goodw in Filed: Jul y

3, 2012

Be ca u s e t h is issue is dispositi ve, we do not rea ch relator’s first issue. See Tex. R. App. 2 P. 47.1. 6