NO. 07-04-0577-CV IN THE COURT OF APPEALS FOR THE SEVENTH DISTRICT OF TEXAS

AT AMARILLO PANEL D JANUARY 12, 2005

______________________________ In re WILL IAM CLIFT ON McELHA NEY, Relator

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Original Proceeding

_______________________________ Before QUINN, REAVIS and CAMPBELL, JJ. Pending before the court is the petition fo r a writ of mandamus filed by William Clifton McElhan ey. Throu gh it, he requeststhat we o rder the ju dge of the 251 stDistrict Court to vacate his order den ying M cElhaney’s motion to dismiss the petition in asuit affecting the parent-child relationship filed by the real parties-in-interest (Gloria Kay Rawls and Raymond Leigh Rawls, the maternal grandpa rents of the minor child) for lack of standing and to compel the trial court to enter an order dismissin g the suit. For the reasons discusse d below, we deny the peti tion. A grandparent has standin g to file an original suit requesting managing conservatorship of a min or child wh en “the order requested is necessary because the child’s environment presents a serious question concernin g the child’s physical health or1 Relato rinte rje cts the el ement of immediacy i nto t he test by suggest ing t hat t here must be an imm edia te concern for the chi ld’ s safet

y or wel fare. Though t hat i ndici a ori ginal ly a ppeared i n §11.03( b)(1 ) of the Tex as Fa mily C ode, the word was removed when the stat ute was recodified i nto §102. 004(a) (1) of t he sa me cod e. Gi ven t hat t he l egi sl at ur e ex cl ude d t he ter m from t he reco di fi cat io n, we must hold t hat i t i ntended to exc ise the nee d for im me diac y from the e qua tion. Se e C am eron v. Te rrell & G arrett, Inc. , 618 S.W.2d 535, 540 (Tex. 1981) ( stat ing t hat “ we beli eve everyword excl uded from a statu te m ust . . . be presumed to have been excl uded for

a purpos e”). So, becaus e Von Behren v. Von Behren , 800 S. W.2d 9 19 (T ex. App. –San An ton io 1 990 , wr it

denied) , a cas e cit ed by t he Relat or f or t he proposi ti on that there must al so be an imm edia te conc ern for the ch ild’s welfare, involve d §11 .03(b)( 1) as opposed t o §102.004 (a)( 1), it is no t con trolling. 2 welfare.”T EX
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. §102.004(a)(1) (Vernon 2002). 1 Furthermore, abusive or violentconduct as well as drug-related criminal activity b y a paren t can sup port a conclusion that a child’s physical or emotional well-being is being endangered. In re D.C. , 128 S.W.3 d 707, 71 5-16 (Tex . App.–Fo rt Worth 20 04, no pet.). Here, evidence of record discloses that McElhaney’s five-yea r-old child had lived with the child’s paternal grandmother since he was about six months old

. When she died in January of 2004, the child went to live with McElha ney and M cElhaney’s sister for several weeks. During that time, McElhaney allegedly assaulted his sister, who then called both the police and Child Protective Services. Evidence indicated that he previously had assaulted his wife and had a “real bad temp er.” After the assa ult upon McElhan ey’s sister, the child went to l ive with the Rawl s. The parties eventually agreed that McElhaney coul d regain custody of

the youth if, among other things, he underwent periodic drug testing ( i.e. hair folli cle tes ting and urinalysis) and the results of those tests were negative. The agreemen t later wa s memoria lized in a tempora ry court o rder. Though McElhaney alleged that he cease d using methamphetamine on January 1, 2004, he never

theless f ailed hi s first ha ir folli cle test. Furthermore, when asked to undergo
a urinalysis per th e tempora ry order a nd on 24hours notice, it took five days for h im to appear a nd compl y. He di d pass th at test, ho wever.3

Thath e failed t he hair f ollicletest and delayed the urin alysis fo r five days is som e evidence from which the trial court could reasonably quest i on whether McElhaney had stopped taking drugs. Thi s, coupled with the evidence of relato r’s tempe r and ass aults upon his wife and sister, provided basisfor the trial court to conclude that serious questions regarding the child’s

physica l health or welfa re existed if McElhaney was allowed to regain custodyof the ch ild. At the very le ast, questions of fact existed concerning the child’s safety and welfare, and because they did, we cann ot grant m andamus. See In re Trinity Universal

Ins. Co., 64 S.W.3d 463, 466(Tex. Ap p.–Amaril lo 2001, o ri g. proceeding) (holding that an appellate court cannot resolve questions of fact in an original mandamus proceedi ng). Accordingly, the petition for a writ of mandamus is deni ed.

Brian Quinn Justice