## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 23

- 00085

- CV

IN RE C.M.B.H., A CHILD

Original Mandamus Proceeding

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Chief Justice Stevens2 

### ME MORANDUM OPINION
In this original proceeding, t he parents of C.M.B.H., a c hild, 1 ha ve petitioned this Court for a writ of mandamus directing the Honorable Will Biard , j udge of the 62nd Judicial District Court of Lamar County , Texas , to vacate the c o urt’s t emporary order of June 14, 2023, granting Grandmother managing conservatorship with the righ t to designate the primary residence of
C.M.B.H. in the absence of a finding that either parent was unfit. We conditionally grant the petition. 2
I. Backgr o u nd
On May 2 5 , 2023, Grandmother filed a petition asking the trial court to appoint her as C.M.B.H.’s sole managing conservator. Grandmother also requested a temporary restraining order asking the court to enjoin Mother from the following :

a. Disturbi ng the peac e o f the chi ld or of another party. b. Withdrawing the child from enrollment in th e school or day

- care facility where the child is presently enrolled.

c. Hiding or secreting the child from Petitioner. d. Making disparaging remarks regarding P et itione r or P e titioner ’s family in the presence or within the hearing of the child.

e. Co nsuming alcohol with in the 24 hours before or during each of Respondent’s periods of possession of or access to the child.

1 Because this matter involv es a suit affecting the pare nt

- ch i l d r elations hi p, we refer to the parents and gr andmother as such to prote ct the privacy of the minor child. See T EX
. R. A PP
. P

. 9.8.

2 In her response, Gr andmother argues that the petition sh ould be denied because counsel ’s verification does not com ply w i t h t he Texas R ule s of Appellate Procedure

. Even though perjury canno t be assigned to the verification, the record is nevertheless properly verif ied. Each page of the record purporting to be a part of the clerk’s reco rd has been properly certifi ed by the d i strict cle rk of Lamar County , Texas

. That porti on of the record th at purports to be the hearing record ha s been properly certified by the cour t reporter.3 f. Canceling, altering , failing to renew or pa y prem iu m s on, or in any manner affecting the level of coverage that existed at the time this suit was filed o f , an y health or dental insurance policy insuring the child. Grandmother further asked the court to grant her exclusive custody and possess ion of
C .M.B .H . until s uch time as a hearing could be held and alleged , “ [T] he child will be and is in immediate danger to [her] health and welfare and

. . . w ill suffer irreparable harm if access to the child by [ Mother ] is not pr ohibited.”
In support o f h er petition, Grandmother explained in an affidavit that C.M.B.H. had lived with her for the past two years and that she was C.M.B.H.’s caretaker. Grandmother stated in her affidavit that C.M.B

. H. was four and one - half years old and that Mother “ ne ver h ad
po ssess ion of [ C.M.B.H. ] for more than a p erio d of 72 hours at one time. ” Grandmother explained that, on May 7, 2023, Mother picked up C.M. B.H. for what Grand mother believed would be an overnight visit , bu t Mother did not return C.M.B

. H. to Grandmot h er . A cc ording to
Gr andmother, Mother also rem oved C.M.B.H. from school. C.M.B.H.’s maternal aunt (Aunt) also attached her affidavit in support of Grandmother ’ s petition, stating that C.M.B.H. live d with
Aunt “ for the first two year s of [C.M.B.H. ’ s ] life ” befo re Grandm other took ov er C.M.B.H. ’ s

care. On Ma y 26, 2023, the trial court issued a temporary restra ining order in accordance with Grandmother’s re quest for sole custody of C.M.B. H. 3 A hearing was set for June 5, 2 023 , and

was continued to June 14 , 202 3.

3 The order also enjoined M other f rom engaging in each of the activ it i es listed in the petition

.4

In the meant ime, Mother filed a counter petition statin g that Father was entitled to citation as C.M.B.H.’s father. Mother asked the court to appoint her and Father as joint managi ng conservators, with Moth er having the exclusive right t o designate C.M .B .H.’s primary re sidence and to enroll her i n school. On J une 13, 2023, Father intervened , asking the court

— in the absence of an agreement

— to appoint Father as the conservator with t he exclusive right to desi gnate C.M

. B.H.’s primary reside nce and to e nro ll her in school. In his supporting affida vi t, Father state d that , since her birth, C.M.B.H ha d visited his home in Hughes Springs , as well as his parents’ home in Daingerfield. 4 Grandmot her knew Father, who attended C.M.B.H.’s second birthday party. Fa th er’s parents were also at the party.
At t he temporary he aring, Grandmother testified that C.M.B.H. ha d lived with her for over two and one - half years. C.M.B.H. had al so spent time with Mother, as Mother wou ld take
C .M.B .H. on the weekends two or t hre e times a month

. Before May of 2023, Mother never h ad possession o f C.M.B.H. for more than seventy

- two hours. On May 7, Mother took C .M.B.H. home from a baseball game and did not return h er to G randmother as she customa rily did on Sunday evening. 5 C. M.B .H . was with Mother three weeks until she was return ed to Grandmoth er under the temporary restraining order

. Grandmother testified that Mother was un ab le to prov ide for C.M.B.H. and that she had
to help Mother with money and food and in taking C.M.B.H . t o the doctor

. Gra ndm other was very concerned th at Mother had b een smoking marihuana. She testified , though, that she had no

4 F a ther state d that he wanted to be judicially dec lared C.M. B.H.’s fat her and have his name added to her birt h certificate.

5 Mother texted Gran dmother on that Sunday and told her she was keepi ng C.M.B. H.5

problem with Mother and Fathe r ha ving visitation but wanted to ma ke sure C.M .B.H. remained stable and “that this [could] be wor ked i nto for [ C.M.B.H.’s] bes t interest. ” When asked how placement with Father would impair C.M.B.H. ’s emotional, physical, and mental well

- being, Gr an dmother responded that C.M.B.H. was “not used to being with them all the time. ” She contin u ed, “ She has see n them on occasion.” Grandmother did not w ant C.M.B.H. “to be yanked up an d not [ to ] be around some of th e people that [she had] kno wn for four and a half years.” When asked what significant impairment would befall C.M.B.H. if she

were raised by her p are nt s, Grandmother simply stated that C. M.B.H. did not “ know either one of them th at good .” Grandmother did not m ind if C.M.B.H. went with them on the we ekends, but not more than that , because Grandmother want ed stability for C .M.B.H.
Aun t testified tha t s he took care of C.M.B.H. for “ the first two yea rs of her life

. ” Aunt kept C .M.B.H. from the time M ot her would go to work in the late afternoon until Mother got off from work at midnight. Sometimes Mother did not come for C.M .B.H. until 7:30 a.m. the
f oll ow ing day. Aunt testified, without obje ction, that Mother told her tha t she smoked marihuana durin g her most recent pregnancy. Aunt also testified that she was with Mother at the doctor’s office
when Mother told the doctor about “her mental issues.” Unf or tunately, Mother was not given the opportunity t o testify at the hearing due t o the trial c ourt’s tim e constraints. Afte r having heard this evidence , the trial court appointed Grandmother as temporary managing conservator and na med both par ents posses sor y conservators. In making this determination, the court stated:6

The Court is go ing to appoin t [Grandmo ther] as temporary sole managing

- - tem porary managing conservator. Both parents will be possessory conservators. I’ll tell t he parents, here is my iss ue , t he grandmother and the aunt have raised this k id for four and a half years, so that’s wh y they’re getting to keep the kid today. If y ’al l want to step up and start raising your child, I’m going to give you the opportunity. When we come back, it w ill b e a whole new ballgame if you’ve shown me that yo u can raise this child. It’s not their jo b to raise [ C .M.B.H.] . It’s y’all ’s job to raise your da ughter. After having made this ruling, the trial court granted Father visita tion on the firs t and thi r d we ekends from Friday at 6:00 p.m. until Sunday at 6:00 p.m. The trial court granted
Mot her visitation on the s econd and fou rth Saturdays from 9: 00 a.m. until 6:00 p.m. The court ordered the exchange to take place in Paris , Tex as , where Gr andmother res ide d

. In so concluding, the court reasoned that the parents could “ get in the car and put forth the eff ort and come and sh ow [the court] that they’re wanting to take care of their daughter.”
II. Mandamus Standard “We grant the ex traordi nary relief of mand amu s only when the trial court has clearly abused its discretion and the relator lacks an adequate appellate remedy.” In re Team Ro cket,
L.P

. , 256 S.W.3d 257, 259 (Tex. 2008) (orig. proceeding) (citations omitted)

. Courts have l ong

rec ogniz ed the proprie ty of granting mandamus relief in the context of child

- custody proceedings. See In re C.J.C

. , 603 S.W.3d 804 , 811 (Tex. 2020) (orig . proceeding) ( finding mandamus relief available where trial court ’ s temporary order divest ed fit p arent of posse ssion of ch ild b ecause “ divestiture is irremediable ” ) ; see In re Crumbley , 404 S.W.3d 156, 161 (Te x. App.

— Texarkana 2013 , orig. proceeding) ( finding mandamus r elief available where trial court appointed grandmother and aunt “ as temporary j oint managing conservators w ith [ m other ]7

having the right to establish child’s primary residence ” (footnote omitted) ) ; Pow ell v. Stover , 165
S.W. 3d 322, 323 (Tex. 2005) (or ig. pro ceeding) ( finding mandamus relief available when simultaneous custody pro ceedings ongoing in diffe rent st ate s) ; In re Forlenza , 140 S.W.3d 373, 379 (Tex. 2004) (orig. proceeding); In re Lau , 89 S.W.3d 757, 7 59

– 60 (Tex. App.

— Houston [1st Dist.] 20 0 2, orig. p roce edi ng).

“ In determining whether to grant mandamus relief, an appel late court should defer t o the
t ria l c ourt’s factual determination s supported by the record.” In re C.J.C. , 603 S.W.3d at 811 (citing Walker v. Packer , 827 S.W.2d 833, 839

– 40 (Tex. 19 92) (or ig. proceeding) )

. Consequently, we may not “set aside the trial court’s finding unless it is cle ar fr om the record that the trial co urt could only reach one decision. ” In re N itla S.A. de C.V

. , 9 2 S.W.3d 419, 422 (Tex. 2002) (per curiam) (orig

. proc ee ding) ( citing Walker , 827 S.W.2d at 839 )

. We may also

“ gr ant mandam us relief if the tria l co urt ‘ fa ils t o correctly analyze or apply the law

. ’ ” In re
C.J.C. , 603 S.W.3d a t 811 (q uoting In re Ford Motor Co

. , 165 S.W.3d 315, 31 7 (Tex. 2005) (p e r curiam) (o rig. proceeding)).
III . Analysis

“ In Troxel v. Granville , [ 530 U.S . 57 (2000) (plural ity op

. ) , ] the Un it ed States Supreme Court held unconstitutional a trial court’s ord er req uir ing a fit parent to permit visitation with her children ’s grandpar ents.” In re C.J.C

. , 603 S.W.3d at 807. “The Cour t recognized that the Unite d States Constitution ‘pro tects t he fu ndamental right of parents to make decisions concerning the care, custo dy, and control of their children.’” Id

. (quotin g Troxel , 530 U.S. a t8

66) . “To protect that right, a plurality in Trox el applied ‘a presumption t hat fit parents act in the best i nte re st [ s i c ] of their children.’” Id

. (quoting Troxel , 530 U.S. at 68).
Li kewis e, “ [t] he presumption that the best intere st of the child is s erved by a warding custody to the parent is deeply embedded in Texas law. ” In re V.L.K

. , 24 S.W.3d 3 38 , 341 (Tex

. 2 00 0) (citing Lewelling v. Lewelling , 796 S.W.2d 164, 166 (Tex. 199 0 ) ). “T he gov ernment m ay not ‘infringe on the fundament al right of parents to make ch ild rearing decisions simply because a state jud ge believes a “ b etter decision ” could be m ade .’” In re C. J.C

. , 603 S.W.3d at 807 (quoting In re Derzapf

, 219 S.W.3d 327, 3 33 (Tex . 2007) (per curi am) (ori g . proceeding) ). This is because “constitutional inf irmity

. . . c an result when a court’s best

- interest determinati on

overr ides the expressed desires of a fi t parent.” Id

. at 817. “Accordingly . . . a court must appl y the presu mption that a fit parent

— not th e court

— deter mines the best interest of the chi ld in any
proc eeding in which a nonparent seeks conservatorship or acces s over the objecti on of a chi ld’ s fit parent.” Id

. Here , Mother and Father contend that the t r ial court abused its discretion by enteri ng a temporar y order naming G randmother as the managing conse rvator with the right to designate C.M.B.H.’s prim ary resi dence in oppositio n to their exp re ssed desires. More particularly, Mother and Father complain t hat Grandm other failed to meet her burden t o prove tha t either parent is unfit . The tri al court’s rul ing does not contain any explicit findings that ei ther par ent is unfit.
“A parent sha ll be appointed as sole managing conservator, or the parents as jo i nt managin g conservators, u nl ess the court finds the a ppointment would not be in the bes t interest9

of the child because it would significantly impair th e child’ s physical health or emo tiona l d ev elopment.” In re Crumbley , 404 S.W.3d at 161 (emphasis added ) ( citing T EX
. F AM
. C ODE A NN
. § 153.131(a)). U nder S ection 153.13 1 (a) , a nonparent must overcome t he fit

- parent presumption as to both parents to b e appointed as a chil d’s conservator

. Id

. at 1 61 n. 3

. Section 153.131(b) provides , “ I t i s a rebuttable p resump tion that the appointment of the parents of a child as joint managing cons ervators is in the best interest of the child.” T EX
. F AM
. C OD E A NN
. § 153.131( b). 6 The t rial court made no fin din g on this issue.

“ [ T ] he parental presumpt i on may also be r ebutted if th e court finds that the pare nt has voluntarily relinquished actual c are , control, and possession of the child to a nonpar ent for a period of one year or more, a portion of which wa s w it hin ninety days preceding the date of
fili n g suit , ” as Gran dmother argue s in this case. In re Crum bley , 404 S.W.3d at 162 ( citing T EX
. F AM
. C ODE A NN
. § 153.373). The trial court made no find ing on this issue. We have p reviously stated that “[a] tria l c ou rt’s conclusion that the parental presumpt i on has been rebu tted must be supported by specific findi ngs of fact identifying the factual basi s for the find ing, and the failure to make such findi ngs constitutes err or.” Id

. at 161. In In re Crumbley , th oug h, we recognized that , because no findings were req u ested or filed , the trial

co urt made “ all findings neces sary to support its judgment.” Id

. at 1 62 (citing Worford v. Stamper , 801 S.W.2d 108, 109 (Tex. 1990) (per curiam) )

. A s in In re Crumbley , we r eco gn ize that the trial court here made implicit findings in sup po r t of its judgment.

6 The statute specifically pr o vides , “ A finding o f a histor y o f family violenc e involving the parents of a chil d removes the presumption under this su bsection.” T EX
. F AM
. C ODE A NN
. § 153.131(b)

. There were no allegations and no evidence that Mother and F ather , or eithe r o f th em , engaged in family viole n c e or had a hi story of family v iolence.10

In re Crumbley w as factually similar to this case. In that case , the child ’s aunt and the child’s mother (Crumbley ) were appointed “ temporary joint managin g conservator s w it h [ m other ] having the right to establish the child’s primar y r esidence. ” Id. at 1 58 (footnote omitted)

. Crumbley filed a petition for a writ of mandamus asking this Court to set aside the tempora ry order because the trial court failed to fi nd that C rum bl e y’s app ointment “ as sole managing conservator would signif icant l y impair the child’s physical health or emotional development.” Id

. at 1 61. We observed , “ [M] any of the provisions in this judgm ent negat e and confl i ct with a ‘deemed’ findi ng that the ap po intmen t of Crumbley would not be in the child’s
best interest a nd that such appointment would signif icantly impair the child’s physical health or

emo tio nal deve lopment.” Id

. at 162. Thos e provi sions inc luded the appointment of Crumbl e y as

a joint ma nag in g conse rvator with the right to determine the ch ild’s primary r e sidence. Id

. We concluded that the trial court would not have made such appointment if it belie ved “ that the child’s health or de velopment w ould be significantly impaired. ” Id

. We furt her d etermined that the evidence was insufficient to show “ Crumbley’ s relinquishment of the care, con trol, and possession of the child fo r any one - year p eriod, any part of which was within the

. . . ninety days preceding the date of filing suit.” I d

. As a r es ult , we conditionally granted the pe tition for a writ of ma n damus, which we shall do in this case a s well. A. Significant Impairment of Physical Health or Em otional Development
The evidence at trial show ed that , while Mother was working , Aunt c ared for C .M .B.H. d uring the first two years of her life

. Mother would p i ck her up after work, or sometimes the next day , and Aunt was inconvenience d and unhappy about Mo ther ’s late arrivals. W hile11

C.M.B.H. lived wi th Grandmother, Mother would take C.M. B .H. on the w eekends tw o or three times a month. In May, Mother cared for C.M.B.H. for three weeks before she was obliged to return the child to Gran d mother under the tria l co urt’s restraining order. The evidence sho wed that Mother and Father attend ed C

. M .B.H.’s ba ll games , an d Father and his parents attended C.M.B.H.’s birthda y party. C.M.B.H. ha d visited Father’s home and ha d visited her grandparent ’ s home in Daingerfiel d. Father ha d a stable job , stable housing, a nd a strong support system

. Whil e t h e re was som e evidence suggesting that Mother smoked marihuana and had probl e ms with depression, those statements were never addressed by Mother , who cou ld not testify due to time constraints. At the hearing, it was apparent that Grandmother’s primary c o n c e rn was tha t C.M.B.H. not be completely removed from her for the sak e of the chil d’s stability. When asked if she could descr ibe “how it would be injurious and harmfu l to [C.M.B.H.] that wou ld

. . . significantly impair her emotional, phys ical, and men t a l wel l

- being t o be placed with ” Father, Grandmother only stated that C.M.B.H . was “ not used to being with them all the time.” Again, when asked what significan t impair ment would result to C. M.B.H. if she were raised by her parents, Gran dmother stated tha t C .M.B.H. di d not “ know either one of them that good.”
Grandm other never s tated that Mother or Father were unfit parent s ; instead, she believed C.M.B.H. needed bondi n g time with her pa rents. It is also apparent from the trial court’s re mar ks at the con c l u sion of t h e hearing that it named Grandmother as managing conser vator because “grandmother and the aunt [had] raised this kid f or four and a half years

. ” The court continued, “ [S] o that’s wh y th e y’re ge tting t o keep12

t he kid to day.” The court also note d , “ I f y’all wa nt to step up and s tart raising your child, I’m going to give you the opportuni ty.” See In re B.A.B

. , No. 07

- 21

- 00259

- CV , 20 22 WL 1687122 , at * 6 (Tex. App.

— Amaril l o May 6, 2022, orig. p roce eding ) (mem. op.) ( conditional ly grant ing petition w h e n “ trial c ou rt’s decision was ba sed on encouraging [ f ] ather to ‘step up’ to bonding
with [ dau ghter , ] and ‘we are going to move toward he being the perso n to determine the prima r y residence ’”).
As in In re Crumbley , the tri al court’s order “ negates an y ‘ d e e med ’ findi ng that the appointment ” of Mother and Father “ would not be in [C.M.B.H.’s] best interest and that such appointment would significantly impair [C.M .B.H.’s] physical health or emotional develop me nt.” Since the tr ial court appointed Mother and F a t her as pos se ssory conservators with t he right of visitation , we do not de em that the trial court co ncluded that suc h appointments would not be in C.M.B.H.’s best interest or that C. M .B.H.’s health or de ve lopment would be

s ignificantly impaired. See In r e Crumbley , 40 4 S.W. 3 d at 162. We conc lude that Grandmother failed to rebu t the parental presumption by showing that appointment of the parents as joint managing conserv ators would not be in t h e b est interest of C. M. B.H. because it wo uld significantly im p a i r C.M.B.H. ’s physical health or emotional de velopment

. B

. V oluntarily Surrender o f Possession Grandmother contends that Mother and Father voluntarily surrendered p ossession of
C.M.B.H. t o Gr andmother. Sectio n 153.373 of the Texas Family Code states,
T h e pre sumptio n that a p arent should be appointed or r etained as managing conservator of the chi ld is rebutted if the court finds that . . . the pa rent has vo luntarily relinquished actual care, control, and posse ssio n of a child to a13

nonpa r ent . . . for a p e r i od of one ye ar or mor e, a portion of which was wit hin 90 days preceding the date of interven tion in or filing of suit.
T EX
. F AM
. C ODE A NN
. § 153.373 (1) (Supp .)

. Th e ninety

- day , pre - suit period ran from Fe bruary 24 , 202 3 , t hrough May 25, 2023

. 7 The

r e c ord i s cle ar that Mother cared for C.M .B.H. two or three weekends every month. The record is also clear that C.M.B.H. was with Mother from May 7, 202 3 , for approximatel y three weeks

. This evidence negates a ny claim that M ot h e r voluntarily relinquished t h e car e, co nt rol, and possession of C.M .B.H. during the re levant time

. As for Father, t here was no evi dence in the record on the precise issue of Father’s possess ion of the child du ring the relevant t ime

. As a

r e sult, the trial court could not ha ve imp l i c itly deter mi ned that Fat her voluntarily rel inquished actual care, control, and p ossession of C. M.B.H. during the relevant time

. The evidence on thi s issue as to bot h parents is insuff icient to overcome t h e parental presumption. C. Parents Did N ot Forfe i t Their Righ t to Pe tition for a Writ o f Mandamus The hearing took place on June 14, 2023. The petition for a writ of mandamus was filed in this Court on October 19, 2 023, resulting in a n approximate four

- m o n th lapse. Grandmother argues that the petition s h ould be de ni ed be cause of the delay in its filing. Grandmother claims th at she has incu rred significant costs in caring for C.M.B.H. during those f our months that s he would not have o therwise incurred if t he petition had been filed sooner. The case G r a n dmother re li es on to support her pos ition, In re E.S

. , 07

- 19

- 00323

- CV,
20 19 WL 7342242, at *1 (Tex. App.

— Amarillo Dec. 30, 2019, orig. proceeding) (per curiam)

7 Even if we were to use July 13, 202 2 (date of original peti tion) , as the date suit was filed , the same an alys is applies. There is nothing in the record to indicate that either Mothe r or Father relinquished actual c a r e, control , and possessio n of the child to a nonpa r ent for a period of on e year or more, a porti on of which was within ninety days of July 13, 2022.14

(mem. op .) , is easily di stinguished. In t ha t case, E.S. petitioned fo r a writ o f mandamus se e k i ng
to vaca te the trial court’s order den ying his application for a writ of hab eas corpus seeking to gain possession of his two children after their mother d ied. The trial cou rt found that E.S. consented to th e relinquishment of posses sion and c ontrol o f t he childre n for at least six months befor e se eking habeas relief. In addition , the trial court determined that a se rious question existed regarding the wel fare of the childre n if relief were granted. Altho ug h the application was denied for severa l rea s o n s, the cou rt determined that E.S. slumbered on h is rights in waiting four months to file the petition. In that case, t hough, the trial court appoi nted g r andmother temporary managi ng conservator after denying h ab e as rel ief and before E.S. filed his peti t i o n. Here,
Mo ther was in possession of C.M.B.H. and was required to return th e child to Grandmother under the trial court’s ord er , at th e behest of Grandmother.
G randmother asked for and r eceived managing conservatorsh ip of C.M.B.H. knowing there would b e c osts invol ve d. The trial court named Grandmother a s m anaging conservator at her request. Grandmother now points to the cost s of carin g for C.M.B.H. during the four

- month period as a bas is to preclude mandamus relief

. Grandmother’s appointment did not h a ppen durin g the four

- month period, as was true in I n re E.S . This appointme nt , rather, precipitated the expenses of which G randmother now complains

. Further, t he trial court ordered bot h parents to pay Grandmother c hi l d support based on the gu idelines o f minimum w ag e. Under these facts,
we cannot say th at Mother and Father forf eited their right to petition for mandamus relief. 8

8 Grandmother also ar gues that this C ourt is precluded from granting mandamus r elief because the identity o f C.M.B. H.’ s fath er was disputed in the trial court. “[A]n appellate court may not deal with d isputed areas of fact in a mandamus proceeding. ” West v. Solito , 563 S.W.2d 240, 245 (Tex. 1978) (orig. proceeding); see In re Vaisha ngi, Inc

. , 4 42 S.W.3d 256, 2 6 0 (Tex. 20 14 ) (p er cur iam) (orig. proceeding) . In the trial court, Grand m othe r testified tha t15

IV. C onclusion
T he trial court did not find that either parent was unfit or voluntaril y s urrendered possession of C.M.B.H. d u ring the r el evant time

. Further, th e eviden ce does not support the

r ebuttal of the parental presumpt ion on either basis. We, therefore, conditionally g rant the petition for a writ of mandamus. We trust that th e 6 2nd Judicial District Cou rt of Lama r C o u n ty , Texas, w ill vacate the court’s temporary o rder of June 14, 2023, gr anting Grandmother managing
conservators hip with the rig ht to designate the primar y residence of C.M.B.H. The writ wil l issue only if the trial cour t f ails, within twenty days of th e d at e of thi s opinion, to take appropriate actio n in acc ordance with this opinion.

Scott E. Stevens Chief Justice
D ate Submitted : November 17 , 2023 Date Decided: November 20 , 20 23

she did not know for sure whether Father was C.M.B

. H .’s f ath er. Neither the trial court n or any party before the trial court took the position that Father was no t C .M.B. H .’s fa ther , and this issue was not argued before the tri al court. I n fa ct, the trial cour t referred to Father as “the father” during the hearing. We do not believe this statemen t created a disputed fact issue for the tr ial court to resolve.