IN RE B.N.S

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 05-07-00016-CV.

Attorney(S)

Gary L. Schappaugh, Gary L. Schappaugh, P.C., Mesquite, TX, for Appellant. J. Darlene Ewing, Dallas, Janice Helene Mccorkel, Mesquite, TX, for Appellee.

See more information ...

Smart Summary

Factual and Procedural Background

James Radford Sayman and Jennifer Lou Barger, parents of three children, divorced in May 2004 and were appointed joint managing conservators. Barger, the daughter of Kathy Hartzog and Jerry Grills, began abusing drugs in May 2005, prompting Sayman to file a petition to modify the parent-child relationship. Hartzog and Grills intervened, seeking possession or access to the children under the Texas grandparent access statute. The trial court entered temporary orders limiting Barger's possession rights to supervised visits, which she did not exercise. After a hearing, the court granted Sayman sole managing conservatorship and awarded Hartzog and Grills specific possession periods. Barger was designated possessory conservator with limited supervised possession. Sayman appealed the order granting the grandparents possession.

Legal Issues Presented

Whether Hartzog and Grills satisfied the statutory requirements under Texas Family Code § 153.433 to be granted possession or access to their grandchildren.
Whether the trial court's order granting possession to the grandparents was unconstitutional given that Sayman is a fit parent and there was no evidence of denial of access or potential emotional harm to the children.

Arguments of the Parties

Appellant's Arguments (James Radford Sayman)

Hartzog and Grills failed to meet the statutory requirements of Texas Family Code § 153.433 for grandparent access.
The order granting possession to the grandparents is unconstitutional because Sayman is a fit parent.
There was no evidence that Sayman would deny access to the children or that the children would suffer emotional harm if the court deferred to his decisions.

Appellees' Arguments (Kathy Hartzog and Jerry Grills)

Section 153.433(3)(D) is ambiguous and should be interpreted to mean that if any one of the three listed conditions exists, the grandparents satisfy the requirement.
Because Barger was not exercising her possession rights, she did not have actual possession of the children, thus satisfying the statutory requirement for grandparent access.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
In re Derzapf, 219 S.W.3d 327 (Tex. 2007)	Standard of review for grandparent access orders: abuse of discretion.	The court applied this standard, finding the trial court abused its discretion in granting access when statutory requirements were not met.
McIntyre v. Ramirez, 109 S.W.3d 741 (Tex. 2003)	Principles of statutory construction: begin with plain language to discern legislative intent.	The court relied on the plain language of the statute to interpret the requirements for grandparent access.
Tune v. Dep't of Pub. Safety, 23 S.W.3d 358 (Tex. 2000)	Enforcement of the plain meaning of an unambiguous statute.	The court enforced the statute's plain meaning without resorting to alternative constructions.
Jones v. State, 175 S.W.3d 927 (Tex.App.-Dallas 2005)	Interpretation of "or" as disjunctive indicating alternatives.	The court treated the disjunctive alternatives in § 153.433(3)(D) separately, requiring that if any one is present, the grandparents do not meet the statute.
Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578 (Tex. 2000)	Meaning of "or" as separation of distinct ideas.	Supported the court's interpretation of the disjunctive nature of the statutory language.
In re Porter, 126 S.W.3d 708 (Tex.App.-Dallas 2004)	Use of "or" means only one of the events must occur to trigger statutory application.	The court applied this to conclude that any one alternative in § 153.433(3)(D) bars grandparent access.
Cherokee Water Co. v. Freeman, 33 S.W.3d 349 (Tex.App.-Texarkana 2000)	Use of "or" to connect alternatives in statutes.	Reinforced the interpretation of the disjunctive "or" as requiring separate consideration of each alternative.

Court's Reasoning and Analysis

The court began by outlining the statutory requirements under Texas Family Code § 153.433 for grandparent possession or access, emphasizing that the statute requires the grandparents to overcome a presumption that parents act in the best interest of their children by proving that denial of access would significantly impair the child's well-being. The statute further requires that the parent of the child falls within one of four categories, including that the parent does not have actual or court-ordered possession or access to the child.

The court analyzed the language of subsection (3)(D), focusing on the disjunctive "or," and concluded that the three alternatives listed must be treated separately. Therefore, if the parent has court-ordered possession, the grandparents do not meet the statutory requirements, regardless of whether the parent is exercising possession.

Because Barger had court-ordered possession of the children, Hartzog and Grills failed to satisfy the statutory condition under subsection (3)(D). Consequently, the trial court abused its discretion in granting possession to the grandparents. The court declined to address the constitutional argument due to its disposition on the statutory grounds.

Holding and Implications

The Court of Appeals REVERSED the trial court's order granting possession of the children to Kathy Hartzog and Jerry Grills and RENDERED judgment denying their petition for access.

The direct effect of this decision is that the grandparents are denied possession or access under the statute because they did not meet the explicit statutory requirements. No new legal precedent was established beyond the application of existing statutory interpretation principles and standards of review.

Show full summary ...

In the Interest of B.N.S., T.L.S., and J.R.S., Minor Children.

OPINION

Opinion by Chief Justice THOMAS.

This is an appeal from an order granting Kathy Hartzog and Jerry Grills possession of their three grandchildren pursuant to the grandparent access statute. See TEX. FAM. CODE ANN. § 153.433 (Vernon Supp. 2007). The children's father, James Radford Sayman, challenges the trial court's order, asserting (1) Hartzog and Grills failed to satisfy the statutory requirements for such an order, and (2) the order is unconstitutional because Sayman is a fit parent and there is no evidence he would completely deny access to the children or that the children would suffer emotional harm if the trial court deferred to his decision. Because Hartzog and Grills do not meet the statutory requirements of section 153.433 of the family code, we reverse the trial court's judgment and render judgment that their petition is denied.

Background

Sayman and Jennifer Lou Barger divorced in May 2004 and were named joint managing conservators of their three children. Barger is the daughter of Hartzog and Grills. In May 2005, Barger began abusing drugs and Sayman filed a petition to modify the parent-child relationship. Hartzog and Grills intervened, seeking possession of or access to the children pursuant to the grandparent access statute. The trial court entered temporary orders limiting Barger's right to possession of the children to supervised possession at Hannah's House. However, Barger failed to exercise her right to supervised possession of the children.

After a hearing, the trial court granted both Sayman's and the grandparents' petitions. The trial court designated Sayman as the sole managing conservator of the children, granted Hartzog and Grills specific periods of possession of the children, and designated Barger as possessory conservator of the children with a right to supervised possession of the children at Hannah's House every Wednesday from 5:00 p.m. until 8:00 p.m. and every Saturday from 9:00 a.m. until 12:00 p.m. The trial court also found Barger was not having actual possession of the children. Sayman appealed.

Analysis

Section 153.433 of the Texas Family Code sets out the requirements that must be met before a trial court may order access to a grandchild by a grandparent:

The court shall order reasonable possession of or access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least one biological or adoptive parent of the child has not had that parent's parental rights terminated;

(2) the grandparent requesting possession of or access to the child overcomes the presumption that a parent acts in the best interest of the parent's child by proving 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; and

(3) the grandparent requesting possession of or access to the child is a parent of a parent of the child and that parent of the child:

(A) has been incarcerated in jail or prison during the three-month period preceding the filing of the petition;

(B) has been found by a court to be incompetent;

(C) is dead; or

(D) does not have actual or court-ordered possession of or access to the child.

TEX. FAM. CODE ANN. § 153.433. We review a trial court's order granting grandparent access for an abuse of discretion. In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (orig.proceeding) (per curiam). A trial court abuses its discretion when it grants access to a grandparent who fails to meet the statutory requirements. Id.

Sayman argues Hartzog and Grills do not meet the requirements of section 153.433(3) because there was no evidence Barger was incarcerated, incompetent, or dead and Barger has court-ordered possession of the children. Hartzog and Grills contend section 153.433(3)(D) is ambiguous and that "[i]f any one of the three [options] exist, the grandparents have met this requirement." They assert because Barger is not exercising her possession and, therefore, does not have actual possession of the children, they meet the statutory requirements.

The goal of statutory construction is to give effect to legislative intent. McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex. 2003). In doing so, we begin with the statute's plain language before resorting to rules of construction. Id. Unless a statute is ambiguous, we discern that intent from the language of the statute itself. Id.; see also Tune v. Dep't of Pub. Safety, 23 S.W.3d 358, 363 (Tex. 2000) ("We must enforce the plain meaning of an unambiguous statute.").

When used in a statute, the word "or" is typically disjunctive and "signifies a separation between two distinct ideas." Jones v. State, 175 S.W.3d 927, 932 (Tex.App.-Dallas 2005, no pet.) (citing Spradlin v. Jim Walter Homes, Inc., 34 S.W.3d 578, 581 (Tex. 2000)). The term separates words or phrases, indicating that "either of the separated words or phrases may be employed without the other." Jones, lib S.W.3d at 932; see In re Porter, 126 S.W.3d 708, 711 (Tex.App.-Dallas 2004, orig. proceeding [mand. denied]) (use of "or" means only one of two events must take place to trigger application of section). Generally, the use of the disjunctive "or" indicates alternatives and requires that those alternatives be treated separately. Jones, 175 S.W.3d at 933; Cherokee Water Co. v. Freeman, 33 S.W.3d 349, 354 (Tex.App.-Texarkana 2000, no pet.) (term "or" used to connect words, phrases, or clauses representing alternatives).

Section 153.433(3)(D) is written in the disjunctive with three alternatives. A grandparent has the right to access to or possession of the children if the other statutory requirements are met and if the parent of the child does not have (1) actual possession of the children, (2) court-ordered possession of the children, or (3) access to the children. These three alternatives must be treated separately. If one of the listed alternatives is present, the grandparents do not meet the statutory requirements. See Jones, 175 S.W.3d at 933; Porter, 126 S.W.3d at 711. In this case, Barger has court-ordered possession of the children. Accordingly, Hartzog and Grills do not meet the statutory requirements for access to or possession of the children.

The trial court abused its discretion in granting Hartzog and Grills's petition when they did not meet the statutory requirements. Therefore, we sustain Sayman's first issue. Due to our disposition of his first issue, we need not address Sayman's second issue contending the order is unconstitutional.

We reverse the trial court's order granting Hartzog and Grills possession of the children and render judgment denying their petition for access.