In re Turan

IN RE YASEMIN TURAN

NUMBER 13-19-00124-CV

COURT OF APPEALS THIRTEENTH DISTRICT OF TEXAS CORPUS CHRISTI - EDINBURG

October 2, 2019

On Petition for Writ of Mandamus.

MEMORANDUM OPINION

Before Chief Justice Contreras and Justices Benavides and Hinojosa

Memorandum Opinion by Justice Hinojosa¹

Through this original proceeding, relator Yasemin Turan seeks to compel the trial court to vacate its temporary orders allowing paternal grandparents, Norma Sonia Castaneda (Sonia) and Robert Castaneda,² access and visitation to relator's minor child, H.F.C. See TEX. FAM. CODE ANN. § 153.433. By memorandum opinion issued on May 16, 2019, this Court denied relator's petition for writ of mandamus. See In re Turan, No. 13-19-00124-CV, 2019 WL 2167373, at *1 (Tex. App.—Corpus Christi-Edinburg May 16, 2019, orig. proceeding) (mem. op.). Relator has now filed a motion for reconsideration and motion to supplement the record. We grant the motion for reconsideration and to supplement the record, withdraw our previous memorandum opinion, and issue this memorandum opinion in its stead. After full consideration of the merits, we conditionally grant mandamus relief.

I. BACKGROUND

Sonia and Robert filed an original petition seeking possession or access to minor child H.F.C. under § 153.432 of the Texas Family Code. See TEX. FAM. CODE ANN. § 153.432. Their "First Amended Petition for Grandparent Possession or Access" states that they are the parents of decedent Roberto Jaime Castaneda, a parent of the child, and that they "have had a relationship with the child since prior to the death of Roberto Jaime Castaneda." The petition asserts that it is in H.F.C.'s best interests that Sonia and Robert be granted possession or access; that at least one of H.F.C.'s parents had not had that parent's rights terminated; and that denial of possession or access would significantly impair H.F.C.'s physical health or emotional well-being. The petition is supported by affidavits from Sonia and Robert, which are identical in substance, detailing their long-standing relationship with H.F.C. Sonia's affidavit states:

Robert Castaneda and I are the parents of [Roberto Jaime] Castaneda, deceased. [Roberto Jaime] Castaneda was the father of H.F.C. [Roberto Jaime] Castaneda [passed] away on June 15, 2013. Since that date, we have managed to stay close to our granddaughter, [H.F.C.]. We have a very close relationship with her. My husband and I were in the delivery room when she was born. We used to see [her] approximately four (4) times a week, lately we have only been allowed to see [her] twice a week when [we] take her to church. Prior to June 2018, we would always be together and spent many hours together.

My late son also had another child, [B.J.C.], who [H.F.C.] is very close to and loves to be with when she visits our home. They both know they are brother and sister and are very close. My husband and I are asking the court to enter an [o]rder allowing us possession and access to our granddaughter, [H.F.C.] to ensure that she continues to have a relationship with her brother and us.

As I stated, lately her mother has denied us access to [H.F.C.] and we have not been able to see her as we [used] to. We are asking that the court enter a Standard Possession Order allowing us possession and access of [H.F.C.]. Our granddaughter will be emotionally and mentally affected if possession continues to be denied.

I am herewith attaching copies of photographs that depict our close relationship with [H.F.C.].

The trial court held an evidentiary hearing at which relator, Sonia, and Robert testified. According to the testimony adduced at the hearing, relator met H.F.C.'s father when she was eighteen or nineteen years old and she became pregnant with H.F.C. Relator and H.F.C.'s father broke up shortly after H.F.C.'s birth when relator was approximately twenty years old. H.F.C.'s father had another child with a different woman at approximately the same time, so H.F.C. has a half-brother that she sees when she visits Sonia and Robert.

After H.F.C.'s birth, relator lived with her parents and they assisted her with H.F.C. Relator had a good relationship with Sonia and Robert, and they saw H.F.C. frequently. In fact, Sonia obtained a job for relator at her place of employment and they worked together for numerous years. In general, Sonia and Robert typically saw H.F.C. three to four times per week and she spent the night with them every other weekend.

However, during the year prior to the hearing, the relationship between relator and Sonia and Robert began to deteriorate. Relator had obtained a college degree, started a new job at a different place of employment, and became engaged to be married. Based upon testimony at the hearing, it is apparent that relator and Sonia had a disagreement in May of that year regarding who had the right to make decisions for H.F.C., or what was best for H.F.C. with regard to such issues as her participation in gymnastics, a summer program at the Boys and Girls Club, or the appropriate amount of time for H.F.C. to spend with her grandparents. After that dispute, relator began reducing the time that Sonia and Robert spent with H.F.C. until at the time of the hearing, they were only taking her to and from church twice each week.

Relator testified that she wanted Sonia and Robert to be part of H.F.C.'s life and that H.F.C. loved them. She stated that she allowed H.F.C. to have substantial contact with her grandparents because she thought that it was important and "healthy" for her to have a relationship with them. Relator testified that she was acting in her daughter's best interest in allowing her to see her grandparents. She testified that she never denied Sonia and Robert access to H.F.C. She acknowledged, however, that she did not want H.F.C.'s grandparents to tell her what to do, "period," and that she has told H.F.C. that she is her mother, and not Sonia.

Sonia testified generally that she and Robert spent more time with H.F.C. than relator had estimated, stating that they saw H.F.C. five times each week and two nights each weekend. She asserted that H.F.C. spent more time with them than she did with relator. However, Sonia concurred with relator's testimony that the time that they spent with H.F.C. diminished after the dispute with relator in May. Sonia testified that since then, they have seen H.F.C. only on Wednesdays and Sundays when they take her to church. She testified that she believes H.F.C. wants to be with them and thinks that H.F.C. is "gravitating" toward her grandparents. Sonia testified that H.F.C. has told her that relator does not like Sonia and Robert, but H.F.C. wishes that she could spend more time with them and wishes her grandparents would get along with her mother. Sonia stated that H.F.C. is afraid to tell relator the way she feels. Sonia also testified that relator is a good mother and affirmatively stated that she was not trying to take H.F.C. away from relator. Robert also testified. He concurred generally with Sonia's testimony that they wished to have more time with H.F.C. and that relator was a good mother.

After the hearing, the trial court entered temporary orders in favor of Sonia and Robert. The court's order states that Sonia and Robert "have had a long-standing relationship with the child, the subject of this suit," and that Sonia, Robert, and relator "have consensually over the years established this relationship." Concluding that H.F.C. "would be physically and emotionally impaired" without access, the trial court ordered that it was in H.F.C.'s best interest for Sonia and Robert to have possession of H.F.C. on the second and fourth Saturday of each month beginning at 1:00 p.m. and ending the following Sunday at 6:00 p.m., and on every Wednesday beginning at 5:00 p.m. and ending at 8:00 p.m.

This original proceeding ensued. Relator attacks the trial court's temporary orders by three issues contending: (1) the trial court abused its discretion because there was insufficient evidence to overcome the presumption of the parent's exclusive right to make decisions for her child as her fundamental right; (2) the trial court abused its discretion because it clearly stated that the relator was a fit and able parent, thus admitting that no significant impairment existed as to parent or child; and (3) mandamus is the appropriate remedy. This Court requested that Sonia and Robert file responses to relator's motion for reconsideration and the petition for writ of mandamus; however, no responses were filed. See TEX. R. APP. P. 52.4, 52.8.

II. MANDAMUS

To obtain relief by writ of mandamus, a relator must establish that the trial court committed a clear abuse of discretion and that there is no adequate remedy by appeal. In re Nationwide Ins. Co. of Am., 494 S.W.3d 708, 712 (Tex. 2016) (orig. proceeding); In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135-36 (Tex. 2004) (orig. proceeding); Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992) (orig. proceeding). The relator bears the burden of proving both requirements. In re H.E.B. Grocery Co., 492 S.W.3d 300, 302 (Tex. 2016) (orig. proceeding) (per curiam); Walker, 827 S.W.2d at 840. As it pertains to this case, mandamus relief is available if a trial court grants a grandparent's request for temporary access to grandchildren where the grandparent fails to prove by a preponderance of the evidence that denial of possession of or access to the child would significantly impair the child's physical health or emotional well-being. See In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding) (per curiam); In re Derzapf, 219 S.W.3d 327, 335 (Tex. 2007) (orig. proceeding) (per curiam); In re J.M.G., 553 S.W.3d 137, 140 (Tex. App.—El Paso 2018, orig. proceeding).

III. GRANDPARENT POSSESSION OR ACCESS

The relationship between parent and child is constitutionally protected, and parents have a fundamental right to make decisions concerning the care, custody, and control of their...