Appellants Brief W Appendix

CAUSE NUMBER 02-20-00143-CV
IN THE
SECOND DISTRICT COURT OF APPEALS
AT FORT WORTH
IN THE INTEREST OF H.L.L., A CHILD
Appeal from the 325th District Court, Tarrant County, Texas,

Cause Number 325-680984-20, the Honorable Judith Wells presiding.
APPELLANTS’ BRIEF
Paul M. Leopold
State Bar Number 24089110
paul@koonsfuller.com
KOONSFULLER, P.C.
550 Reserve Street, Suite 450
Southlake, Texas 76092
(817) 481-2710 Phone
(817) 481-2637 Fax
Attorney for Appellants,

K.L. and C.L.
APPELLANTS REQUEST ORAL ARGUMENT

CAUSE NUMBER 02-20-00143-CV
IN THE
SECOND DISTRICT COURT OF APPEALS
AT FORT WORTH
IN THE INTEREST OF H.L.L., A CHILD
Identity of Parties and Counsel
Appellants: K.L. and C.L.
Appellants’
Trial Counsel: David Routzon
State Bar No. 24033136
The Routzon Firm, PLLC
1670 Keller Parkway, Suite 253
Keller, Texas 76248
(817) 616-0734 telephone
(817) 841-8324 facsimile
david@routzonlaw.com
Appellants’
Appellate Counsel: Paul M. Leopold
KoonsFuller, P.C.
(817) 481-2710 Phone
(817) 481-2637 Fax
Appellees: M.L. and E.L.
Appellees’ Trial and

Appellate Counsel: John T. Eck
2
Robert Stites, Attorney at Law,
A Professional Corporation
933 West Weatherford Street
Fort Worth, Texas 76102
(817) 336-7577 telephone
(817) 336-7583 facsimile
john@stitesattorney.com
Child: H.L.L.
Amicus Attorney: Lori A. Spearman

504 North Oak Street, Suite 6
Roanoke, Texas 76262
(817) 490-5075 telephone
(817) 590-5076 facsimile
lorispearman@aol.com
Trial Judge: Honorable Judith Wells

325th Judicial District Court
Family Law Center
200 East Weatherford Street, 5th Floor
Other parties who were part of the original order before severance:
Biological Mother: W.O.
Biological Mother’s
Trial Counsel: Dinah Stallings
Law Office of Dinah M. Stallings
1244 Southridge Court, Suite 105
Hurst, Texas 76053
(817) 280-9733 telephone
(817) 280-9738 facsimile
dmsnotice@gmail.com
Biological Mother’s
Appellate Counsel: John H. Cayce
3
john.cayce@kellyhart.com
Joe Greenhill
joe.greenhill@kellyhart.com
Kelly Hart & Hallman, LLP
201 Main Street, Suite 2500
(817) 332-2500 telephone
(817) 878-9280 facsimile
Biological Father: R.L.
Biological Father’s
Trial Counsel: Dinah Stallings
Hurst, Texas 76053
(817) 280-9733 telephone
(817) 280-9738 facsimile
dmsnotice@gmail.com
4
Table of Contents
Identity of Parties and Counsel ..................................................................................2
Table of Contents .......................................................................................................5
Index of Authorities ...................................................................................................9
Citations to the Record and Parties ..........................................................................11
Statement Regarding Oral Argument ......................................................................11
Statement of the Case ...............................................................................................12
Issues Presented for Review ....................................................................................13

1. Appellees were required to file an affidavit with supporting facts that
showed that their complete denial of possession of or access to the child
would significantly impair the child’s physical health or emotional
development. Appellees argued that the parental presumption did not
apply, so they were not required to show significant impairment. But the
statute requiring the affidavit requires significant impairment without
mentioning the parental presumption. Did the trial court err by not
dismissing the suit because Appellees’ affidavit did not provide adequate
facts?.....................................................................................................................13
2. Alternatively, three elements are required before a trial court may

order possession or access to a grandchild by a grandparent. Appellees
argued that they did not need to prove significant impairment at trial
because the parental presumption did not apply, so they did not satisfy the
second element because no significant impairment existed. And Appellees
admitted that their son’s parental rights had been terminated prior to trial,
so they did not satisfy the third element because they were not a parent of
a parent of the child. Did the trial court err by ordering possession and
access by Appellees because legally and factually insufficient evidence
existed to satisfy all three elements of the statute? .............................................. 13
3. Alternatively, the best interest shall always be the primary

consideration of the court when determining possession and access. Did
the trial court err by ordering possession and access because legally and
5
factually insufficient evidence existed that the possession and access was
in the best interest of the child? ........................................................................... 13
4. Alternatively, some courts of appeals have held that, when modifying

a previous order to allow grandparent access, the material-and-substantial-
change standard applies. Appellees were modifying a previous order, but
they provided legally and factually insufficient evidence regarding a
material and substantial change in circumstances of the child since the last
order. Did the trial court err by ordering possession and access because
legally and factually insufficient evidence existed of a material and
substantial change? .............................................................................................. 13
Statement of Facts ....................................................................................................14

A. The adopting parents were managing conservators. .................................... 14
B. Appellees admitted that the adopting parents provided a safe and stable
home for the child. ....................................................................................... 14
C. Appellees filed their petition with attached affidavit. ................................. 15
D. Appellees admitted that they cannot keep up with the child. ...................... 17
E. The child had a relationship with Appellees and others. ............................. 17
F. The parties did not communicate well. ........................................................ 19
G. Both biological parents’ parental rights were terminated, and the child
was subject to a pending adoption suit. ....................................................... 20
H. Appellees referred to prior hearings but offered no evidence or

stipulations regarding facts from most of those hearings. ........................... 20
I. The trial court granted Appellees’ petition. ................................................. 21
Summary of Argument.............................................................................................23
Argument..................................................................................................................26
I. The trial court erred by not dismissing the suit because Appellees’
affidavit did not provide adequate facts. ...................................................... 26
6
A. Standard of review. .................................................................................. 26
B. The statute requires facts to show both a complete denial of access

and significant impairment. ...................................................................... 27
C. Appellees did not prove a complete denial of access. ............................. 28
D. Appellees did not prove significant impairment. ..................................... 28
II. The trial court erred by ordering possession and access by Appellees
because legally and factually insufficient evidence existed to satisfy
all three elements of the statute. ................................................................... 32
B. The statute has three elements.................................................................. 36

1. The first element: At the time the relief is requested............................37
2. The second element: Complete denial and significant impairment. .....37
3. The third element: A parent of a parent of the child.............................38
C. Appellees did not satisfy the second element because legally and
factually insufficient evidence exists regarding complete denial of
access or significant impairment. ............................................................. 40
D. Appellees did not satisfy the third element because they admitted
that they were not parents of a parent of the child. .................................. 43
III. The trial court erred by ordering possession and access because legally
and factually insufficient evidence existed that the possession and
access was in the best interest of the child................................................... 44
B. A grandparent access suit requires the grandparent to prove best

interest. .....................................................................................................45
C. Appellees failed to prove best interest by legally or factually

sufficient evidence.................................................................................... 46
7
IV. The trial court erred by ordering possession and access because legally
and factually insufficient evidence existed of a material and substantial
change. .................................................................................................................50
A. Standard of review and applicable law .................................................... 50
B. Some courts of appeals have held that the material-and-substantial-

change standard applies............................................................................ 50
C. Appellees did not prove a material and substantial change had

occurred. ...................................................................................................52
Conclusion ...............................................................................................................53
Prayer .......................................................................................................................54
Certificate of Compliance ........................................................................................55
Certificate of Service ...............................................................................................56
Appendix ..................................................................................................................57
8
Index of Authorities
Cases
Anderson v. City of Seven Points, 806 S.W.2d 791 (Tex. 1991) .............................35
Augillard v. Madura, 257 S.W.3d 494 (Tex. App.—Austin 2008, no pet.) ............36
B.J. Valve & Fitting Co. v. Elliot Valve Repair Co., 679 S.W.2d 1
(Tex. 1984) ........................................................................................ 33, 35, 44, 45
Burton v. Prince, 577 S.W.3d 280
(Tex. App.—Houston [14th Dist.] 2019, no pet.) ................................................34
Casas v. Adriano, No. 13-06-373-CV, 2007 WL 1941422
(Tex. App.—Corpus Christi July 5, 2007, no pet.) (mem. op.) .................... 31, 32
Catalina v. Blasdel, 881 S.W.2d 295 (Tex. 1994) ...................................................35
City of Keller v. Wilson, 168 S.W.3d 802 (Tex. 2005) ............................... 35, 44, 49
Downer v. Aquamarine Operators, Inc., 701 S.W.2d 238 (Tex. 1985) ..................27
F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680 (Tex. 2007) ...... 27, 34
Gardner v. Martin, 345 S.W.2d 274 (Tex. 1961) ....................................... 36, 42, 50
Gillespie v. Gillespie, 644 S.W.2d 449 (Tex. 1982) ......................................... 45, 51
Guyton v. Monteau, 332 S.W.3d 687
(Tex. App.—Houston [14th Dist.] 2011, no pet.) ................................... 36, 42, 50
Holley v. Adams, 544 S.W.2d 367 (Tex. 1976) .......................................... 47, 48, 49
Holy Cross Church of God in Christ v. Wolf, 44 S.W.3d 562 (Tex. 2001) .............43
In re A.N.G., No. 02-09-006-CV, 2010 WL 213975
(Tex. App.—Fort Worth Jan. 21, 2010, no pet.) (mem. op.) ...............................31
In re B.G.D., 351 S.W.3d 131 (Tex. App.—Fort Worth 2011, no pet.) ........... 27, 33
In re C.H.C., 392 S.W.3d 347 (Tex. App.—Dallas 2013, no pet.) .........................53
In re D.K.B., No. 13-08-00177-CV, 2009 WL 2462778
(Tex. App.—Corpus Christi Aug. 13, 2009, no pet.) (mem. op.)........................51
In re Derzapf, 219 S.W.3d 327 (Tex. 2007) ............................................................34
In re H.L.L., No. 02-20-00120-CV ............................................................. 13, 15, 43
In re J.J.R., No. 13-11-00502-CV, 2012 WL 1810211
(Tex. App.—Corpus Christi May 17, 2012, no pet.) (mem. op.) ................. 31, 32
In re J.M.G., 553 S.W.3d 137 (Tex. App.—El Paso 2018, orig. proceeding) ........30
In re J.M.T., 280 S.W.3d 490 (Tex. App.—Eastland 2009, no pet.) .......... 38, 40, 44
In re J.P.C., 261 S.W.3d 334 (Tex. App.—Fort Worth 2008, no pet.) 31, 32, 43, 46
In re Johnson, No. 03-12-00427-CV, 2012 WL 2742122
(Tex. App.—Austin July 3, 2012, orig. proceeding) (mem. op.) ........................30
In re K.W., 138 S.W.3d 420 (Tex. App.—Fort Worth 2004, pet. denied) ..............35
In re Kelly, 399 S.W.3d 282 (Tex. App.—San Antonio 2012, orig. proceeding) ...30
In re L.B., No. 02-19-00345-CV, 2020 WL 1808486
(Tex. App.—Fort Worth Apr. 9, 2020, no pet.) (mem. op.) ................................35
9
In re Mays-Hooper, 189 S.W.3d 777 (Tex. 2006) (orig. proceeding).....................38
In re Nelke, 573 S.W.3d 917
(Tex. App.—Dallas 2019, orig. proceeding) ........................ 32, 38, 41, 43, 46, 47
In re P.M.G., 405 S.W.3d 406 (Tex. App.—Texarkana 2013, no pet.) ..................34
In re Prudential Ins. Co. of Am., 148 S.W.3d 124 (Tex. 2004) (orig. proceeding).28
In re R.S.D., 446 S.W.3d 816 (Tex. App.—San Antonio 2014, no pet.) ................36
In re S.B., 207 S.W.3d 877 (Tex. App.—Fort Worth 2006, no pet.)................ 48, 49
In re Scheller, 325 S.W.3d 640 (Tex. 2010) (orig. proceeding) ................. 29, 30, 32
In re Shifflet, 462 S.W.3d 528
(Tex. App.—Houston [14th Dist.] 2015, orig. proceeding) ................... 36, 42, 50
In re Smith, 260 S.W.3d 568
(Tex. App.—Houston [14th Dist.] 2008, orig. proceeding) ....... 38, 40, 44, 46, 47
In re Sullender, No. 12-12-00058-CV, 2012 WL 2832542
(Tex. App.—Tyler July 11, 2012, orig. proceeding) (mem. op.) ........... 27, 29, 33
In re W.C.B., 337 S.W.3d 510 (Tex. App.—Dallas 2011, no pet.) ............ 34, 52, 53
MBM Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660 (Tex. 2009) .......35
Nellis v. Haynie, 596 S.W.3d 920
(Tex. App.—Houston [1st Dist.] 2020, no pet.) ........................................... 52, 53
Spencer v. Vaughn, No. 03-05-00077-CV, 2008 WL 615443
(Tex. App.—Austin Mar. 6, 2008, pet. denied) (mem. op.) ................................52
Super Ventures, Inc. v. Chaudhry, 501 S.W.3d 121
(Tex. App.—Fort Worth 2016, no pet.) ...............................................................35
Thompson v. Thompson, 827 S.W.2d 563
(Tex. App.—Corpus Christi 1992, writ denied) ..................................................48
Worford v. Stamper, 801 S.W.2d 108 (Tex. 1990) (per curiam) .............................34
Statutes
Tex. Fam. Code Ann. § 101.024 ....................................................................... 40, 44
Tex. Fam. Code Ann. § 153.002 ..............................................................................46
Tex. Fam. Code Ann. § 153.432 ..................................................... 28, 39, 51, 53, 58
Tex. Fam. Code Ann. § 153.433 ............................. 28, 29, 37, 38, 39, 40, 42, 44, 58
Tex. Fam. Code Ann. § 153.434 ..............................................................................39
Tex. Fam. Code Ann. § 156.101 ..............................................................................52
Other Authorities
Acts 2001, 77th Leg., ch. 821, § 2.05, eff. June 14, 2001 .......................................40
Acts 2005, 79th Leg., ch. 484, § 4, eff. Sept. 1, 2005 .............................................40
Rules
Tex. R. App. P. 33.1 .................................................................................................34
10
Citations to the Record and Parties
The Clerk’s Record will be cited to as [CR PDF Page Number].
The Supplemental Clerk’s Record will be cited to as [SuppCR PDF Page Number].
The Reporter’s Record will be cited to as [Volume Number RR PDF Page
Number:Line Number].
Appellants, K.L. and C.L., may be referred to as the adopting parents.
Appellees, M.L. and E.L., may be referred to as the paternal grandparents.
W.O. may be referred to as the biological mother.
R.L. may be referred to as the biological father.
Statement Regarding Oral Argument
The facts of this case are not complex, but the legal issues present issues of
first impression in this Court regarding the grandparent access statutes of the Texas
Family Code. Furthermore, opinions from other courts of appeals are either
inconsistent on these issues or the issues have not been addressed before. Appellants
believe oral argument will help the Court resolve the issues in this case.
11
Statement of the Case
Nature of the case. This is a grandparent access case. [CR10]
Course of proceedings. Adopting parents were managing conservators of the

child. [2RR10:15–20] Appellees then filed their suit for access. [CR10] The
grandparent access suit was consolidated with the existing suit between the adopting
parents and the biological parents. [CR45] Prior to final trial of the grandparent suit,
both biological parents’ parental rights were terminated. [2RR31:19–22] See In re
H.L.L., No. 02-20-00120-CV. The biological father did not appeal the termination
of his parental rights. See id. A final bench trial was held on February 6, 2020,
regarding the grandparent access suit. [2RR1] The grandparent access suit was
severed from the termination suit and given a new cause number. [CR382]
Trial court disposition. The trial court ordered possession and access by
Appellees. [CR323] The trial court made findings of fact and conclusions of law on
June 9, 2020. [SuppCR4–6]
12
Issues Presented for Review
1. Appellees were required to file an affidavit with supporting facts that

showed that their complete denial of possession of or access to the child would
significantly impair the child’s physical health or emotional development.
Appellees argued that the parental presumption did not apply, so they were not
required to show significant impairment. But the statute requiring the affidavit
requires significant impairment without mentioning the parental presumption. Did
the trial court err by not dismissing the suit because Appellees’ affidavit did not
provide adequate facts?
2. Alternatively, three elements are required before a trial court may order
possession or access to a grandchild by a grandparent. Appellees argued that they
did not need to prove significant impairment at trial because the parental
presumption did not apply, so they did not satisfy the second element because no
significant impairment existed. And Appellees admitted that their son’s parental
rights had been terminated prior to trial, so they did not satisfy the third element
because they were not a parent of a parent of the child. Did the trial court err by
ordering possession and access by Appellees because legally and factually
insufficient evidence existed to satisfy all three elements of the statute?
3. Alternatively, the best interest shall always be the primary

consideration of the court when determining possession and access. Did the trial
court err by ordering possession and access because legally and factually insufficient
evidence existed that the possession and access was in the best interest of the child?
4. Alternatively, some courts of appeals have held that, when modifying

a previous order to allow grandparent access, the material-and-substantial-change
standard applies. Appellees were modifying a previous order, but they provided
legally and factually insufficient evidence regarding a material and substantial
change in circumstances of the child since the last order. Did the trial court err by
ordering possession and access because legally and factually insufficient evidence
existed of a material and substantial change?
13
Statement of Facts
A. The adopting parents were managing conservators.
Prior to the grandparent access suit beginning, Appellants K.L. and C.L., the
adopting parents, were managing conservators of the child, H.L.L. [2RR10:15–20]
See In re H.L.L., No. 02-20-00120-CV. The adopting parents allowed Appellees,
M.L. and E.L., the paternal grandparents, to visit with the child in 2017. [CR15;
2RR67:12–15, 107:10–24] E.L. agreed that the child considered the adopting parents
as the child’s parents. [2RR53:5–7]
B. Appellees admitted that the adopting parents provided a safe and stable
home for the child.
Appellees both admitted that the child was “safe” and “stable” because she
was living with the adopting parents. [2RR53:8–12, 101:4–16] The child’s counselor
had said that the child was “a well-adjusted young girl,” which E.L. agreed had “to
come from [the adopting parents] since they have had her for five-and-a-half
years[.]” [2RR53:13–20] E.L. provided contradictory testimony that the child wore
the same clothes during her visits, which had allegedly not been washed.
[2RR19:21–20:14] E.L. said she put a “smudge of ketchup” on the child’s shirt,
while the child was wearing the shirt but without the child knowing, to see if the
clothes were being washed. [2RR20:5–9, 52:5–16] C.L. disputed that the child’s
clothes were unwashed, although she acknowledged that the child wore the same
clothes for some visits but only after they had been washed. [2RR64:23–65:3, 74:11–
14
75:3] No evidence existed that Appellees had spoken with the adopting parents about
the clothes issue prior to E.L.’s ketchup test.
C. Appellees filed their petition with attached affidavit.
Appellees filed their grandparent access suit in February 2018, requesting to
modify a July 20, 2015 order. [CR10–11; 2RR9:10–12] E.L.’s affidavit, attached to
Appellee’s petition, stated:
• The child had lived with her biological parents in Appellees’ home from 2012
to 2013. [CR14]
• In 2014, the child and her biological parents moved out; in August 2014, the
biological father was arrested; and the biological mother went into rehab in
2016. [CR14]
• The child could not be placed with Appellees when the biological father was
arrested because E.L. had a CPS history. [CR14]
• The child was placed with the adopting parents. [CR14]
• The adopting parents had allowed visitation through 2017, with the last visit
being at Christmas 2017. [CR14–15]
• C.L. said Appellees would not see the child again after the Christmas 2017
visit. [CR15]
• The child “expressed her frustration,” “dearly misse[d] [Appellees]”, “ha[d]
drawn pictures for [Appellees] and ha[d] inquired when she c[ould] see
15
[Appellees] again”; the child “cried about all of this and [the child] was upset
when she had to leave [Appellees] during visits.” [CR15]
• “[D]enial of possession of or access to [the child] by [the adopting parents]
would significantly impair the child’s physical health or emotional well-
being.” [CR15]
• The adopting parents were “trying to erase [Appellees] and [the child’s] father
from [the child’s] life. [Appellees] were a big part of it. [C.L.’s] animosity
toward [Appellees] will rub off on [the child]. It will teach [the child] that
people can be abandoned. It will teach [the child] that [Appellees] don’t love
her.” [CR15]
• M.L. had “attempted to text [C.L.] to see if [Appellees] c[ould] see [the child]
again and [C.L.] accuse[d] [Appellees] of harassing [C.L.]. [Appellees] have
not seen the child since Christmas 2017.” [CR15]
An associate judge first ordered unsupervised visits; and then after a de novo
appeal, the district judge ordered supervised visits; and then an associate judge again
ordered unsupervised visits. [2RR10:5–14, 11:1–25] The adopting parents filed their
termination suit around October 2018. [2RR8:22–9:1, 36:18–21] The adopting
parents wanted to adopt the child. [2RR72:21–22] The grandparent access case was
consolidated with the original case that was being modified. [CR45] The later
termination suit was also consolidated with these two suits as part of the termination
16
proceeding. See In re H.L.L., 02-20-00120-CV. The grandparent access suit was
then severed as of the date of the final order. [CR323, 331, 382]
D. Appellees admitted that they cannot keep up with the child.
E.L. admitted that, when the child is at her home with her biological cousin
and half-brother, E.L. “can’t keep up with them.” [2RR30:14–25] M.L. admitted that
he was not “with them all the time.” [2RR97:9–15] Because of this, the child learned
of her biological parents despite a court order that prohibited discussing the
biological parents around the child. [2RR30:6–31:8] E.L. also testified regarding
Appellees’ poor health but again contradicted her testimony and said that E.L. “can
always” care for an eight-year-old running around and screaming. [2RR42:3–43:12]
E. The child had a relationship with Appellees and others.
The child had a biological cousin and biological half-brother that Appellees
allowed her to visit when the child was with Appellees. [2RR14:1–6] Appellees
alleged that the child did not get to see these individuals except for at Appellees’
visits. [2RR14:7–9] C.L. had made other arrangements for the children to see each
other that did not work out, and at the time of trial, the child only saw her cousin and
half-brother at Appellees’ visits, which would change once the litigation was over.
[2RR67:22–69:4, 76:18–77:6] E.L. did not know how the adopting parents would
treat the relationship between the child and her cousin or half-brother moving
forward. [2RR46:21–47:2]
17
The child and these individuals have a good time together and are bonded.
[2RR14:10–15:9, 69:21–70:2] E.L.’s adult disabled daughter also lived with
Appellees and visited with the child. [2RR32:21–33:25] E.L. testified that the child
referred to Appellees as “Grammy” and “Grandad.” [2RR34:21–24] C.L.
acknowledged that the child “[s]ometimes” had a good time at Appellees’.
[2RR66:21–67:11] C.L. cooperated to allow for visits with Appellees prior to the
grandparent suit being filed and did not deny access. [2RR107:10–24]
E.L. testified of a family reunion that C.L., the child, and E.L. had attended
where the child would look at E.L. and wave with her “pointer finger” “where [C.L.]
. . . couldn’t see.” [2RR229:13–17] At the family reunion, E.L. told the child, “I
know you are not supposed to talk to me,” even though C.L. had not actually
prohibited the child from talking to E.L. [2RR48:19–22, 70:15–17] But E.L. said she
knew it by the child’s “body stance.” [2RR48:25–49:5] E.L. said that the child was
sad when her visits were over. [2RR45:1–3] E.L. said that Appellees had paid the
biological father’s child support payments while the biological father was in prison.
[2RR43:21–25]
C.L. did not think it would be detrimental to the child if Appellees did not
have visitation with the child. [2RR71:21–24] Rather, she though it was in the
child’s best interest to not have visitation with Appellees because of things that
occurred during the visits that had negatively affected the child. [2RR77:7–22] C.L.
18
thought the visits had a negative impact on the child because negative things were
being told to the child. [2RR82:17–83:9] C.L. only thought it would get worse
because Appellees’ son’s parental rights had been terminated. [2RR83:10–14]
F. The parties did not communicate well.
All the parties took co-parenting classes during the suit. [2RR41:5–13, 65:16–
17] But their relationship did not improve. [2RR80:14–25, 99:12–17] Animosity still
existed between Appellees and the adopting parents, but neither Appellee thought
that the animosity negatively affected the child. [2RR56:7–57:4, 99:22–100:3] E.L.
also did not think that her comment to the child at the family reunion put the child
in the middle of the conflict between Appellees and the adopting parents.
[2RR59:19–60:1] C.L. thought the animosity was emotionally harmful to the child.
[2RR80:8–13] C.L. had sent the child to Appellees with a listening device previously
but learned that that was wrong and would not do it again and has not done it since.
[2RR61:6–16] C.L.’s communications with Appellees were only through the
attorneys during the litigation, but after litigation, she would communicate directly
with Appellees again. [2RR73:11–18, 79:9–20, 108:12–23] C.L. thought that
counseling with the child’s counselor could help improve the relationship between
the adopting parents and Appellees. [2RR82:6–13]
Both Appellees had told C.L. that the adopting parents should not adopt the
child. [2RR102:9–15] The adopting parents had started discussing adoption prior to
19
this lawsuit, while visits to Appellees’ home were occurring, and Appellees were not
happy that the adopting parents were considering adoption, even though both
Appellees admitted at trial that the adopting parents provided a safe and stable home
for the child and it was because of the adopting parents that the child was well-
adjusted. [2RR53:8–20, 101:4–16, 102:16–103:4 2RR] M.L. “would get really
assertive with [C.L.], so sometimes [C.L. and the child] would just have to leave”
visits with Appellees. [2RR104:19–105:10] M.L. would be verbally threatening.
[2RR105:8–10] C.L., however, would facilitate the relationship between the child
and Appellees and the child and her cousin and half-brother. [2RR103:8–12, 104:5–
18]
G. Both biological parents’ parental rights were terminated, and the child
was subject to a pending adoption suit.
Both Appellees admitted that their son’s parental rights were terminated prior
to trial. [2RR31:19–22, 51:2–8, 91:6–15] The appellees acknowledged that the
adopting parents were in the process of adopting the child. [2RR92:14–25, 93:5–19,
102:9–15]
H. Appellees referred to prior hearings but offered no evidence or

stipulations regarding facts from most of those hearings.
At the start of trial, Appellees said there were no stipulations. [2RR7:6–7]
Appellees referred to several prior hearings and orders from the trial court in this
case and requested judicial notice of some of the court’s file. [2RR10:5–14, 11:1–4,
20
12:6–14, 18:3–19, 19:4–6, 21:5–8, 22:22–25, 36:25–37:5, 41:14–24] Appellees
even objected to facts from the termination trial being offered because it was from
“another trial.” [2RR78:16–20] Only some of the documents and previous facts were
actually offered into evidence. [3RR4–15] Most of the facts from E.L.’s affidavit
were not offered through testimony, and the affidavit itself was not offered into
evidence.
I. The trial court granted Appellees’ petition.
The trial court granted Appellees’ petition and awarded possession and access
to Appellees. [CR325] The trial court signed findings of fact and conclusions of law,
finding and concluding that, inter alia:
• The biological parents were the parents of the child;
• The biological father had been incarcerated during the three months preceding
filing;
• The biological father did not have a court-ordered access or possession
schedule with the child at the time of filing;
• The biological parents had not had their parental rights terminated at the time
of filing;
• The adopting parents were not the parents of the child, so the parental
presumption did not apply;
• No parent had objected to Appellees seeking possession and access;
21
• Appellees were bonded with the child and have had significant contact with
the child;
• The adopting parents had “engaged in conduct to deny [Appellees] possession
of or access to the child”;
• It was in the child’s best interest that Appellees had possession and access;
• “All prerequisites for [Appellees] ha[d] been met.”
[SuppCR4–6]
22
Summary of Argument
affidavit did not provide adequate facts.
Section 153.432(c) of the Texas Family Code requires an affidavit that
provides facts that the child’s physical health or emotional development would be
significantly impaired if the grandparent is denied access. It does not contain any
language that a parent be the person denying the access or any mention of the
parental presumption, so any argument regarding the parental presumption is
irrelevant and meritless. The affidavit in this case does not provide facts that rise to
the level of significant impairment. Accordingly, the trial court should have
dismissed the suit. Because it did not, the trial court erred, and this Court should
reverse and render, dismissing Appellees’ suit.
because legally and factually insufficient evidence existed to satisfy all
three elements of the statute.
Alternatively, Section 153.433(a) requires the grandparent to prove three
elements before a trial court may order possession and access: (1) neither parents’
parental rights had been terminated at the time of filing; (2) the complete denial of
possession of or access to the child by the grandparent would significantly impair
the child’s physical health or emotional development; and (3) the grandparent is a
parent of a parent of the child, and the parent of the child meets certain requirements.
23
Appellees did not provide legally or factually sufficient evidence to satisfy the
second or third elements. The statute does not require the parent to be the one
denying access before having to prove significant impairment. And even if it did,
Appellees did not provide sufficient evidence that the biological parents were not
the ones denying access. Accordingly, Appellees had to show a complete denial of
access and significant impairment, which they failed to do.
Additionally, both Appellees admitted, and it was undisputed, that their son’s
parental rights had already been terminated, so Appellees could not prove the third
element. Further, no evidence was offered to satisfy the requirements of the parent
of the child. Without all three elements, the trial court was without discretion to
grant Appellees’ petition. Accordingly, the trial court erred, and this Court should
reverse and render, denying Appellees’ petition. Alternatively, the Court should
reverse and remand for further proceedings.
and factually insufficient evidence existed that the possession and access
was in the best interest of the child.
Alternatively, even if all three elements were satisfied, the best interest of the
child shall always be the primary consideration when determining possession and
access. Appellees provided legally and factually insufficient evidence to prove that
possession and access by them would be in the best interest of the child.
24
Accordingly, this Court should reverse and render, denying Appellees’ petition.
Alternatively, this Court should reverse and remand for further proceedings.
change.
Alternatively, but in addition to the best-interest standard, some courts of
appeals have held that, when a grandparent access suit modifies a previous order,
the material-and-substantial-change standard also applies. Although this suit was
severed out after trial, it still modified the previous order. Legally and factually
insufficient evidence exists in the record regarding a material and substantial change
because the conditions at the time of the original order and the conditions at the time
of trial were not provided for the trial court to compare. Accordingly, this Court
should reverse and render, denying Appellees’ petition. Alternatively, this Court
should reverse and remand for further proceedings.
25
Argument
affidavit did not provide adequate facts.
By this issue, the adopting parents are not challenging standing because
Appellees are the biological grandparents of the child. See In re B.G.D., 351 S.W.3d
131, 140 (Tex. App.—Fort Worth 2011, no pet.) (“It is undisputed that Connie is the
biological grandmother of the children. She therefore has standing . . . .”).
A. Standard of review.
The Court must interpret Section 153.432(c) as part of this issue. Statutory
interpretation is a legal question that is reviewed de novo. F.F.P. Operating
Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007). Statutes are construed
to give effect to the Legislature’s intent as expressed by the plain and common
meaning of the statute’s words. Id.
Whether a trial court errs by not dismissing a grandparent access suit based
on the sufficiency of the affidavit is reviewed for an abuse of discretion. See, e.g.,
In re Sullender, No. 12-12-00058-CV, 2012 WL 2832542, at *3 (Tex. App.—Tyler
July 11, 2012, orig. proceeding) (mem. op.) (holding that, because affidavit was
insufficient to grant grandparent access, trial court abused its discretion by not
dismissing suit). A trial court abuses its discretion if it acts without reference to any
guiding rules or principles or acts arbitrarily or capriciously. Downer v. Aquamarine
Operators, Inc., 701 S.W.2d 238, 241–42 (Tex. 1985). A trial court has no discretion
26
in determining what the law is or in applying the law to the facts, even when the law
is unsettled. In re Prudential Ins. Co. of Am., 148 S.W.3d 124, 135 (Tex. 2004)
(orig. proceeding).
B. The statute requires facts to show both a complete denial of access and
significant impairment.
Section 153.432(c) requires a grandparent to file an affidavit “on knowledge
or belief that contains, along with supporting facts, the allegation that denial of
possession of or access to the child by the petitioner would significantly impair the
child’s physical health or emotional well-being.” Tex. Fam. Code Ann. § 153.432(c)
(emphasis added). It does not contain any language regarding a parent of the child.
“The court shall deny the relief sought and dismiss the suit unless the court
determines that the facts stated in the affidavit, if true, would be sufficient to support
the relief authorized under Section 153.433.” Id. No Texas cases appear to have
determined whether the parental presumption applies to the affidavit when a
nonparent has custody of the child.
The plain language of the statute does not limit the application of the affidavit
in any way and does not reference the fit-parent presumption. Significantly, the
statute requires the trial court to dismiss if the facts in the affidavit would be
insufficient to grant “the relief authorized under Section 153.433.” See id.
(emphasis added). Grandparent access is the relief authorized under Section
153.433. Id. § 153.433(a). Subsections (a)(1) through (a)(3) provide the elements
27
that must be satisfied, i.e. the conditions for the relief authorized. See id.
Accordingly, significant impairment must be shown through facts in the affidavit,
regardless of the conditions of Section 153.433.
C. Appellees did not prove a complete denial of access.
The affidavit must show a complete denial of possession of or access to the
child. In re Sullender, 2012 WL 2832542, at *3. Appellees’ affidavit showed that
they had possession and access through 2017. [CR14–15] When they asked for
additional access, their affidavit states that C.L. said they were harassing her, not
completely denying possession or access. [CR15] Furthermore, the trial court only
found that the adopting parents had “engaged in conduct to deny” possession or
access, not a complete denial. [SuppCR5] Accordingly, the affidavit Appellees filed
only a few weeks later is insufficient to show a complete denial of possession or
access, and the trial court abused its discretion by not dismissing the suit. See id.
(holding that, because affidavit did not show complete denial of possession or
access, trial court abused its discretion by not dismissing suit).
D. Appellees did not prove significant impairment.
The affidavit must also show significant impairment, which is a high burden.
In re Scheller, 325 S.W.3d 640, 643 (Tex. 2010) (orig. proceeding).
Significant impairment has been held not to exist in situations where
grandchild and grandparent had a close bond or previously lived together, the
28
grandparent attended activities or school functions, the grandchild showed anger or
sadness, the caregiver was mentally unstable, or the grandchild was accustomed to
spending time with the grandparent or other family members. See, e.g., id. (holding
no significant impairment where grandchildren displayed anger, one had
experienced isolated bed-wetting and nightmares, and both had suffered from the
impact of losing their maternal family members); In re J.M.G., 553 S.W.3d 137,
142–43 (Tex. App.—El Paso 2018, orig. proceeding) (holding no significant
impairment where grandchildren had close relationship with grandmother,
grandchildren previously resided with grandmother during father’s standard
possession periods, grandmother attended school activities and other events, and
grandchildren stated that they missed grandmother and wanted to have visitation
with her); In re Kelly, 399 S.W.3d 282, 284 (Tex. App.—San Antonio 2012, orig.
proceeding) (holding no significant impairment where grandchildren had close
relationship with grandparents and would further lose a connection with their
deceased father if they could not visit with grandparents); In re Johnson, No. 03-12-
00427-CV, 2012 WL 2742122, at *2 (Tex. App.—Austin July 3, 2012, orig.
proceeding) (mem. op.) (holding no significant impairment where grandmother
testified that “something [was] wrong” with children’s mother and that grandmother
was not allowed to visit children; nurse who cared for children’s late father testified
that mother was mentally unstable); In re A.N.G., No. 02-09-006-CV, 2010 WL
29
213975, at *3 (Tex. App.—Fort Worth Jan. 21, 2010, no pet.) (mem. op.) (holding
no significant impairment where grandchildren were accustomed to spending time
with grandparents and wanted to see them more often); In re J.P.C., 261 S.W.3d
334, 337–38 (Tex. App.—Fort Worth 2008, no pet.) (holding no significant
impairment where child had spent significant time in grandparents’ home, access
had been limited after death of father, child’s behavior was “different” than before,
child experienced discomfort from being separated from grandparents, child was
longing, and grandparents feared that child would lose memory of father without
visitation with grandparents).
Significant impairment has been held to exist when the grandparent cared for
the child as a parent or the child thought of the grandparent as a parent. See, e.g., In
re J.J.R., No. 13-11-00502-CV, 2012 WL 1810211, at *4 (Tex. App.—Corpus
Christi May 17, 2012, no pet.) (mem. op.) (holding significant impairment where
grandmother helped raise grandson since his birth, took him to doctor’s
appointments, and knew how to administer his medications; father had limited
contact with child over last five years and did not give child his medications on at
least one occasion); Casas v. Adriano, No. 13-06-373-CV, 2007 WL 1941422, at
*3–4 (Tex. App.—Corpus Christi July 5, 2007, no pet.) (mem. op.) (holding
significant impairment where grandchild lived with grandparents for nearly one
30
year, referred to grandparents as “mom” and “dad,” and had close ties with extended
family).
Here, the facts in Appellees’ affidavit do not rise to the level of significant
impairment if Appellees were denied access when compared to the caselaw. [CR14–
15] See In re Scheller, 325 S.W.3d at 643. The child never thought of Appellees as
parents. [CR14–15] See In re J.J.R., 2012 WL 1810211, at *4; Casas, 2007 WL
1941422, at *3–4. Rather, these are similar facts to other cases where significant
impairment did not exist. See, e.g., In re J.P.C., 261 S.W.3d at 337–38 (holding no
significant impairment where child had spent significant time in grandparents’
home, child experienced discomfort, child was longing, and grandparents feared that
child would lose memory of father without visitation with grandparents).
Accordingly, the trial court erred by not dismissing the suit.
Moreover, the biological parents could not place the child with Appellees
because of Appellees’ CPS history, so the biological parents chose to place the child
with the adopting parents. [CR14–15] So, if the parental presumption applies to the
affidavit stage, even though it should not because dismissal is not based on the
conditions to grant grandparent access, Appellees would still need to show
significant impairment because the biological parents were the ones who restricted
any access by not placing the child with Appellees. See, e.g., In re Nelke, 573
S.W.3d 917, 925 (Tex. App.—Dallas 2019, orig. proceeding) (holding that, because
31
the mother chose to place the child with someone other than grandparent requesting
access, grandparent requesting access had to overcome parental presumption
because it was presumed mother was acting in best interest of child by not placing
child with grandparent requesting access). Appellees’ affidavit is, therefore,
insufficient because they have not shown significant impairment.
Therefore, because Appellees’ affidavit was insufficient, the trial court erred
by not dismissing the suit. See In re Sullender, 2012 WL 2832542, at *3. And this
Court should reverse and render, dismissing Appellees’ suit. See B.J. Valve &
Fitting Co. v. Elliot Valve Repair Co., 679 S.W.2d 1, 1 (Tex. 1984).
because legally and factually insufficient evidence existed to satisfy all
three elements of the statute.
Alternatively, if the affidavit was sufficient, the Court should reverse because
Appellees did not satisfy their burden at trial. By this issue, the adopting parents are
not challenging standing because Appellees are the biological grandparents of the
child. See In re B.G.D., 351 S.W.3d at 140 (“. . . a grandparent’s standing is not
conferred by section 153.433.”).
The same standards of review apply to this issue because it requires the Court
to interpret Section 153.433 of the Texas Family Code and determine whether the
trial court abused its discretion by granting access to Appellees. See F.F.P.
32
Operating Partners, L.P., 237 S.W.3d at 683 (statutory interpretation is reviewed de
novo); In re Derzapf, 219 S.W.3d 327, 333 (Tex. 2007) (“A trial court abuses its
discretion when it grants access to a grandparent who has not met” the standards of
Section 153.433.).
Furthermore, a sufficiency argument under an abuse of discretion standard is
not an independent ground of error but a factor to consider whether an abuse of
discretion occurred. In re P.M.G., 405 S.W.3d 406, 410 (Tex. App.—Texarkana
2013, no pet.). Under a sufficiency argument, a reviewing court determines whether
the trial court had sufficient evidence upon which to exercise its discretion and, if it
did, whether the trial court erred by exercising that discretion. In re W.C.B., 337
S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.). No objection is required to
preserve a sufficiency argument in a bench trial. Tex. R. App. P. 33.1(d); see Burton
v. Prince, 577 S.W.3d 280, 285 n.3 (Tex. App.—Houston [14th Dist.] 2019, no pet.).
Under a legal sufficiency review, the reviewing court will consider only
evidence favoring the trial court’s ruling and affirm the judgment if the ruling is
correct under any legal theory supported by the evidence. Worford v. Stamper, 801
S.W.2d 108, 109 (Tex. 1990) (per curiam). An appellate court conducting a legal
sufficiency review, however, cannot “disregard” undisputed evidence that allows for
only one logical inference. City of Keller v. Wilson, 168 S.W.3d 802, 814 (Tex.
33
2005). Legally insufficient evidence requires reversing and rendering in the
appellant’s favor. B.J. Valve & Fitting Co., 679 S.W.2d at 1.
Under a factual sufficiency review, the reviewing court will consider and
weigh all of the evidence and will set aside a judgment only if it is so against the
great weight and preponderance of the evidence that it is clearly wrong and unjust.
In re L.B., No. 02-19-00345-CV, 2020 WL 1808486, at *7 (Tex. App.—Fort Worth
Apr. 9, 2020, no pet.) (mem. op.). Factually insufficient evidence requires
remanding the cause for a new trial. In re K.W., 138 S.W.3d 420, 426 (Tex. App.—
Fort Worth 2004, pet. denied).
A trial court’s findings of fact have the same force and dignity as a jury’s
answers to jury questions, and the reviewing court reviews the legal and factual
sufficiency of the evidence supporting those findings using the same standards that
are applied to jury findings. Catalina v. Blasdel, 881 S.W.2d 295, 297 (Tex. 1994);
Anderson v. City of Seven Points, 806 S.W.2d 791, 794 (Tex. 1991); see also MBM
Fin. Corp. v. Woodlands Operating Co., 292 S.W.3d 660, 663 n.3 (Tex. 2009).
When a reporter’s record exists, findings of fact on disputed issues are not conclusive
and may be challenged for evidentiary sufficiency. Super Ventures, Inc. v.
Chaudhry, 501 S.W.3d 121, 126 (Tex. App.—Fort Worth 2016, no pet.).
“It is will recognized that a trial court may take judicial notice of its own
records in a cause involving the same subject matter between the same, or practically
34
the same, parties.” Gardner v. Martin, 345 S.W.2d 274, 276 (Tex. 1961). “A trial
court may take judicial notice of its own record in matters that are generally known,
easily proven, and not reasonably disputed.” In re R.S.D., 446 S.W.3d 816, 820 n.4
(Tex. App.—San Antonio 2014, no pet.) (internal quotations marks and citations
omitted). “Therefore, a court may take judicial notice that a pleading has been filed
in the case, that it has signed an order, or of the law of another jurisdiction,” but “[a]
court may not take judicial notice of the truth of the allegations in its record.” Id.
(emphasis in original) (citation omitted).; accord Guyton v. Monteau, 332 S.W.3d
687, 693 (Tex. App.—Houston [14th Dist.] 2011, no pet.) (noting that “the trial court
may not take judicial notice of the truth of factual statements and allegations
contained in the pleadings, affidavits, or other documents in the file.”) (emphasis in
original) (citations omitted); see, e.g., In re Shifflet, 462 S.W.3d 528, 539, 541 (Tex.
App.—Houston [14th Dist.] 2015, orig. proceeding) (holding that trial court could
not take judicial notice of factual findings in temporary orders that had not been
admitted into evidence to use as evidence to dismiss intervention at later hearing).
“When evidence is the subject of improper judicial notice, it amounts to no
evidence.” Guyton, 332 S.W.3d at 693 (citing Augillard v. Madura, 257 S.W.3d
494, 503 n.14 (Tex. App.—Austin 2008, no pet.) (finding evidence legally
insufficient to support judgment where trial court took judicial notice of testimony
35
from a hearing held thirteen months earlier in the same case, but the evidence was
not offered in the second hearing)).
B. The statute has three elements.
Section 153.433(a) requires a grandparent to prove three things before the trial
court may order possession and access:
(a) The court may 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(a).
36
1. The first element: At the time the relief is requested.
The first element is tied specifically to the time of filing; the second and third
elements are not. See id.
2. The second element: Complete denial and significant impairment.
The grandparent must prove that there is a complete denial of possession or
access. In re Mays-Hooper, 189 S.W.3d 777, 778 (Tex. 2006) (orig. proceeding);
In re J.M.T., 280 S.W.3d 490, 493 (Tex. App.—Eastland 2009, no pet.).
Some Texas courts have held that, if the respondent is a nonparent, then the
respondent does not benefit from the fit-parent presumption. See, e.g., In re Smith,
260 S.W.3d 568, 574 (Tex. App.—Houston [14th Dist.] 2008, orig. proceeding)
(declining to extend parental presumption to nonparents grandfather and wife
appointed as joint managing conservators in prior agreed decree).
The Dallas Court of Appeals has opined that “the status of the parental
presumption at this stage is less than clear.” In re Nelke, 573 S.W.3d at 925. The
Nelke court explained that, because the mother in that case had agreed to place the
child with the managing conservator rather than the grandparent seeking access, the
mother was arguably acting in the best interest of the child, and the grandparent
seeking access would still have to overcome the presumption. Id. “Section 153.433,
as written, requires a grandparent to overcome the presumption the parent acts in the
child’s best interest and does not reference whether that parent must presently (or
37
temporarily) be acting in the capacity of a managing conservator.” Id. (emphasis
added). Essentially, the grandparent seeking access would have to prove significant
impairment whether the conservator is a parent or nonparent.
Moreover, the language of the statute does not reference who is denying
possession or access before requiring the grandparent to prove significant
impairment. Tex. Fam. Code Ann. § 153.433(a)(2). So, even if it is a nonparent
who denies possession or access, the statute still requires the grandparent to prove
significant impairment. This Court does not appear to have previously addressed
this issue at the time this brief is filed.
3. The third element: A parent of a parent of the child.
The third element is multifaceted. It first requires the grandparent to prove
that he or she “is a parent of a parent of the child.” Tex. Fam. Code Ann. §
153.433(a)(3). It does not include the term “biological,” like the Legislature
specifically chose to do in other sections and subsections of this statutory scheme.
See Tex. Fam. Code Ann. §§ 153.432(a) (“A biological or adoptive grandparent
. . . .”); 153.433(a)(1) (“. . . at the time the relief is requested, at least one biological
or adoptive parent . . . .”); 153.434(1) (“. . . each of the biological parents of the child
. . . .”). Indeed, in 2005, the Legislature removed the option to order access if the
grandparent was “the parent of a person whose parent child relationship with the
child ha[d] been terminated by court order.” See Acts 2005, 79th Leg., ch. 484, § 4,
38
eff. Sept. 1, 2005. The current statute then requires the grandparent to prove certain
things about the parent of the child. Tex. Fam. Code Ann. § 153.433(a)(3).
A “parent” is defined as
the mother, a man presumed to be the father, a man legally

determined to be the father, a man who has been
adjudicated to be the father by a court of competent
jurisdiction, a man who has acknowledged his paternity
under applicable law, or an adoptive mother or father.
Except as provided by Subsection (b), the term does not
include a parent as to whom the parent-child
relationship has been terminated.
(b) For purposes of establishing, determining the terms of,

modifying, or enforcing an order, a reference in this title
to a parent includes a person ordered to pay child support
under Section 154.001(a-1) or to provide medical support
or dental support for a child.
Tex. Fam. Code Ann. § 101.024. This definition does not include the term
“biological” and explicitly says that a person whose parental rights have been
terminated is no longer a parent. The Legislature removed the term “biological” in
2001. Acts 2001, 77th Leg., ch. 821, § 2.05, eff. June 14, 2001. Thus, if a person’s
parental rights have been terminated, then that person is no longer “a parent of the
child” for purposes of Section 153.433. In re Smith, 260 S.W.3d at 574 (applying
101.024 definition to 153.433). This is true even when the termination occurs during
the suit. See, e.g., In re J.M.T., 280 S.W.3d at 491–92 (holding that, because father’s
parental rights were terminated and paternal grandparents adopted the child during
pendency of maternal grandparents’ intervention for access, the paternal
39
grandparents were the parents for the grandparent access case, not the father). This
Court does not appear to have previously addressed this issue at the time this brief
is filed.
C. Appellees did not satisfy the second element because legally and factually
insufficient evidence exists regarding complete denial of access or
significant impairment.
The Court must first interpret Section 153.433(a)(2) to determine whether the
complete denial and significant impairment requirements apply when a nonparent
has custody of the child. More specifically to the facts of this case, the court must
determine if the parental presumption applies when the biological parents chose to
place the child with the nonparent-custodians rather than the grandparents seeking
access, just like in the Nelke case. See In re Nelke, 573 S.W.3d at 925. Moreover,
the Court must determine whether it matters if a parent or a nonparent is the one
withholding access. See id. The plain language of the statute does not make
reference to who is withholding, so it should not matter who is withholding for the
grandparents to have to prove significant impairment. That would similarly apply if
the biological parents chose to place the child with the nonparent-custodians over
the grandparents seeking access. So here, Appellees should still have to prove all
three elements, including the complete denial of access and the significant
impairment of the second element, even though the adopting parents were the
40
managing conservators of the child. See Tex. Fam. Code Ann. § 153.433(a)(2).
Appellees failed to satisfy this burden.
Finding of fact number twelve only says that the adopting parents “have
engaged in conduct to deny [Appellees] possession of or access to the child.”
[SuppCR5 (emphasis added)] Moreover, finding of fact number ten, that no parent
objected to Appellees seeking an order for possession or access, is irrelevant to the
ultimate issues in the suit. [SuppCR5] The biological parents were rarely ever
discussed at trial, only to confirm that their rights had been terminated. [2RR31:19–
22, 51:2–8, 91:6–15] Legally and factually insufficient evidence was provided that
a complete denial of possession or access ever occurred, either by the adopting
parents or the biological parents, although there were some court ordered times that
did not occur after Appellees filed. [3RR12–15] And because Appellees’ affidavit
was never offered into evidence, and no stipulations existed, the Court could not take
judicial notice of it or consider the facts alleged in it to support any kind of denial.
[2RR7:6–7] See Gardner, 345 S.W.2d at 276; In re Shifflet, 462 S.W.3d at 539, 541;
Guyton, 332 S.W.3d at 693. Appellees failed to prove there was a complete denial
of access.
Moreover, as stated in Issue 1, no significant impairment was shown. Rather,
just the opposite was admitted by Appellees: the adopting parents provided a safe
and stable home for the child, who was well-adjusted because of the adopting
41
parents’ care for her. [2RR53:8–20, 101:4–16] In Nelke, the maternal grandmother
intervened into the paternal grandmother’s suit for custody of the younger child, who
the mother had placed with the maternal grandmother as part of a CPS placement.
In re Nelke, 573 S.W.3d at 919. The mother had possessory conservatorship and the
maternal grandmother was managing conservator. Id. at 925. The Dallas Court of
Appeals noted that it was not relevant to its decision whether the mother would gain
managing conservatorship of the child, only whether the mother was acting in the
child’s best interest. Id. The Dallas Court of Appeals did not hold that the parental
presumption did not apply; rather, it held that the paternal grandmother had not met
either the significant impairment requirement, if it applied, or the best interest
requirement. Id. Appellees judicially admitted that the biological parents agreed to
place the child with the adopting parents, and they continued to have possessory
conservatorship until their rights were terminated. [CR11] See id.; Holy Cross
Church of God in Christ v. Wolf, 44 S.W.3d 562, 568 (Tex. 2001); see also In re
H.L.L., No. 02-20-00120-CV (companion case to this case).
The same caselaw cited above regarding significant impairment applies here,
and Appellees’ failed to show any significant impairment at trial. See In re J.P.C.,
261 S.W.3d at 337–38. Rather, they only showed that a bond existed between them
and the child and that the child was sad when her visits ended, which does not rise
to the level of significant impairment. [2RR34:21–24, 45:1–3] See id. Accordingly,
42
because legally and factually insufficient evidence regarding the second element
exists, the trial court erred by ordering possession and access.
D. Appellees did not satisfy the third element because they admitted that
they were not parents of a parent of the child.
The third element first required Appellees to prove that they were parents of
a parent of the child. See Tex. Fam. Code Ann. § 153.433(a)(3); see also Tex. Fam.
Code Ann. § 101.024; In re Smith, 260 S.W.3d at 574 (applying 101.024 definition
to 153.433). The trial court found that the biological parents were the parents of the
child in finding number two. [SuppCR4] But both Appellees admitted that both
biological parents’ parental rights had already been terminated, making them not
parents of the child. [2RR31:19–22, 91:6–15] See Tex. Fam. Code Ann. § 101.024;
In re J.M.T., 280 S.W.3d at 491–92 (holding that biological father, whose parental
rights were terminated during pendency of maternal grandparents’ intervention for
access, was not a parent). This was undisputed evidence, which this Court cannot
“disregard.” See City of Keller, 168 S.W.3d at 814. Thus, legally insufficient
evidence exists that Appellees were parents “of a parent of the child,” requiring a
reversal and rendition denying Appellees’ petition. See B.J. Valve & Fitting Co.,
679 S.W.2d at 1.
Moreover, the trial court found that Appellees’ son had been incarcerated for
three months before they filed and did not have a court ordered access or possession
schedule with the child in findings five and six. [SuppCR4] But none of this evidence
43
was ever offered through testimony or documentation at trial. Accordingly, even if
Appellees were parents of a parent of the child, legally insufficient evidence exists
that the “parent of the child,” i.e. Appellees’ son, satisfied any of the four
requirements, which requires a reversal and rendition denying Appellees’ petition.
See id.
Accordingly, because legally and factually insufficient evidence existed of a
complete denial of access, of significant impairment, that Appellees were parents of
a parent of the child, or that the parent of the child satisfied any of the four
requirements, the trial court abused its discretion, and this Court should reverse and
render, denying Appellees’ petition. Alternatively, this Court should reverse and
remand for further proceedings.
and factually insufficient evidence existed that the possession and access
was in the best interest of the child.
Alternatively, if the affidavit was sufficient, and Appellees satisfied the three
elements of Section 153.433, legally and factually insufficient evidence exists
regarding the best interest of the child.
The same abuse of discretion standard from above applies to this issue. See
Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982).
44
B. A grandparent access suit requires the grandparent to prove best
interest.
Even if the significant impairment standard does not apply, the best interest
standard continues to apply in all grandparent access suits. See Tex. Fam. Code
Ann. § 153.002; In re Nelke, 573 S.W.3d at 925–26; In re J.P.C., 261 S.W.3d at 336;
In re Smith, 260 S.W.3d at 574–75.
In Nelke, the child was “happy and doing well,” the child was safe, there were
concerns about placing the child with paternal grandmother because she had not
always protected the child while in her home, the maternal grandmother had cared
for the child since birth, the mother did not want paternal grandmother to have access
and did not think it was best for the child to be with anyone but maternal
grandmother, and paternal grandmother said she would be willing to help the child
with everything. In re Nelke, 573 S.W.3d at 925–26. The Nelke court held that
evidence to be insufficient to not only prove that denial of access would cause
significant impairment but also to prove that the trial court’s order granting access
was in the best interest of the child. Id. at 926.
In Smith, the Houston 14th District Court of Appeals held that the trial court
had not abused its discretion because the evidence supported a best-interest finding.
In re Smith, 260 S.W.3d at 574–75. The court did not discuss the evidence in terms
of best interest, but the rest of the opinion showed that the parents had entered into
an agreed order with the paternal grandfather for the paternal grandfather to be
45
managing conservator, the parents were possessory conservators, limited access was
first given to the maternal grandmother, that access stopped, and the maternal
grandmother testified that she had never done anything to harm the child. Id. at 570,
574.
C. Appellees failed to prove best interest by legally or factually sufficient

evidence.
Here, legally and factually insufficient evidence exists to support the findings
of fact related to best interest, findings twelve through sixteen. [SuppCR5] Appellees
admitted that the child was safe and stable in the adopting parents’ home, just like
in Nelke. [2RR53:8–12, 101:4–16] See In re Nelke, 573 S.W.3d at 925–26. E.L.
agreed that the child was “well-adjusted” because she had lived with the adopting
parents for the past five-and-a-half years. [2RR53:13–20] See id. Concerns existed
about the child being with Appellees because of the things they had done and said
that were negatively affecting the child, just like in Nelke. [2RR77:7–22, 82:17–
83:9] See id. Appellees admitted the adopting parents were doing a great job, but
then they contradicted themselves by talking about bad things the adopting parents
had done. [2RR19:21–20:14, 52:5–16]
Moreover, Appellees admitted they could not keep up with the child or
supervise her at all times because of their poor health. [2RR30:14–25, 42:3–43:12,
97:9–15] See Holley v. Adams, 544 S.W.2d 367, 371–72 (Tex. 1976) (holding that
physical and emotional needs of and danger to child are factors to consider best
46
interest); In re S.B., 207 S.W.3d 877, 886 (Tex. App.—Fort Worth 2006, no pet.)
(holding that best-interest consideration also includes ability to provide adequate
care, lack of parenting skills, poor judgment, and repeated instances of immoral
conduct). And because of Appellees’ lack of supervision, the child learned about
her biological parents while in Appellees’ care, despite a court order prohibiting such
dissemination of information. [2RR30:6–31:8] See Holley, 544 S.W.2d at 371–72;
In re S.B., 207 S.W.3d at 886.
Appellees also discounted the animosity between themselves and the adopting
parents, not thinking it had any negative effect, or any effect at all, on the child,
while C.L. thought it was negatively affecting her. [2RR56:7–57:4, 80:8–13, 99:22–
100:3] See Holley, 544 S.W.2d at 371–72; In re S.B., 207 S.W.3d at 886; see, e.g.,
Thompson v. Thompson, 827 S.W.2d 563, 567 (Tex. App.—Corpus Christi 1992,
writ denied) (holding that appointment of sole managing conservator would be
improvement for child because of animosity between parties). And E.L. did not
think negative comments to the child put the child in the middle of the parties’
conflict, even though the child herself had asked about the animosity between the
parties. [2RR56:18–57:4, 59:19–60:1] See Holley, 544 S.W.2d at 371–72; In re S.B.,
207 S.W.3d at 886. E.L. also put the child in the middle of the conflict by putting
ketchup on the child’s clothes without first talking to the adopting parents about the
47
issue, showing a lack of parenting skills and poor judgment. [2RR20:5–9, 52:5–16]
See In re S.B., 207 S.W.3d at 886.
Importantly, Appellees never even discussed what was best for the child
throughout their testimony or mentioned the best interest of the child once in the
entire trial. It was Appellees’ burden to prove that it was in the best interest of the
child for Appellees to have possession of or access to the child, and they failed to
meet their burden.
Appellees’ lack of ability to care for the child and her physical and emotional
welfare, their lack of acknowledging the negative effects the animosity between the
parties had on the child, their putting the child in the middle of that conflict, and the
complete absence of their ever stating what was best for the child, show that it is not
in the child’s best interest that Appellees have possession of or access to her. See
Holley, 544 S.W.2d at 371–72; In re S.B., 207 S.W.3d at 886. And Appellees only
provided negligible evidence that the child was bonded with them or other family
members, while providing no evidence how a denial of access would negatively
affect the child, if at all. [2RR14:10–15:9, 32:21–33:25, 34:21–24, 69:21–70:2]
C.L.’s testimony was undisputed that the child’s time with Appellees and the things
that were being done or said while the child was with them was negatively affecting
her and not in her best interest. [2RR77:7–22, 82:17–83:9] That undisputed evidence
cannot be “disregarded.” See City of Keller, 168 S.W.3d at 814.
48
Additionally, any evidence that may have been presented at previous trials or
hearings that was not offered into evidence, including only asking the trial court to
take judicial notice of certain documents in its file, cannot be used to support any of
the best interest findings, only the orders or filings that were offered and admitted
into evidence can actually support the findings. [2RR7:6–7, 10:5–14, 11:1–4, 12:6–
14, 18:3–19, 19:4–6, 21:5–8, 22:22–25, 36:25–37:5, 41:14–24, 78:16–20, 3RR4–
15] See Gardner, 345 S.W.2d at 276; In re Shifflet, 462 S.W.3d at 539, 541; Guyton,
332 S.W.3d at 693.
Furthermore, the record shows that no overnight visits had been allowed for
the entirety of this case until the final order. [CR58, 76, 106, 224, 234, 240, 254,
303, 325] Appellees provided legally and factually insufficient evidence that it was
in the best interest of the child that they should have overnight visits. Nothing in the
record shows that the child had overnight visits with anyone else since being in the
care of the adopting parents. And the last time Appellees allegedly had overnight
visits with the child were over six years prior to trial. [CR14]
Because legally and factually insufficient evidence exists to support the best
interest findings or that the order is in the child’s best interest, the trial court erred
by ordering possession or access by Appellees. Accordingly, this Court should
reverse and render, denying Appellees’ petition. Alternatively, this Court should
reverse and remand for further proceedings.
49
change.
Alternatively, if the affidavit was sufficient and Appellees satisfied the
grandparent access statutes’ requirements, legally and factually insufficient evidence
exists of a material and substantial change.
A. Standard of review and applicable law.
The same abuse of discretion standard from above applies to this issue. See
Gillespie, 644 S.W.2d at 451.
B. Some courts of appeals have held that the material-and-substantial-

change standard applies.
“A biological or adoptive grandparent may request possession of or access to
a grandchild by filing . . . a suit for modification as provided by Chapter 156.” Tex.
Fam. Code Ann. § 153.432(a)(2) (emphasis added). Some Texas courts have
interpreted this to mean that the material-and-substantial-change standard of Chapter
156 must be satisfied. See, e.g., In re D.K.B., No. 13-08-00177-CV, 2009 WL
2462778, at *5 n.5 (Tex. App.—Corpus Christi Aug. 13, 2009, no pet.) (mem. op.)
(reversing order granting access to grandmother and noting that grandmother may
file modification “should circumstances change such that [the mother] is no longer
acting in the best interests of D.K.B. by fostering D.K.B.’s relationship with
[grandmother],” and citing Section 156.101 with parenthetical that a court can
modify a possession order if a material and substantial change in circumstances has
50
occurred); Spencer v. Vaughn, No. 03-05-00077-CV, 2008 WL 615443, at *8 (Tex.
App.—Austin Mar. 6, 2008, pet. denied) (mem. op.) (holding that Chapter 156
standard applies to modification of prior grandparent access order). It does not
appear that this Court has previously addressed this issue at the time this brief is
filed.
A party seeking modification of a suit affecting the parent-child relationship
must prove that (1) a material and substantial change has occurred to the child or
either conservator, and (2) the requested modification is in the best interest of the
child. Tex. Fam. Code Ann. § 156.101(a).
“To prove that a material and substantial change in circumstances has
occurred, the evidence must show the conditions that existed at the time of the prior
order as compared to the conditions that existed at the time of the hearing on the
motion to modify.” Nellis v. Haynie, 596 S.W.3d 920, 926 (Tex. App.—Houston
[1st Dist.] 2020, no pet.) (internal quotations and citations omitted); accord In re
W.C.B., 337 S.W.3d at 514 (stating that, to determine whether material and
substantial change has occurred to support modification of conservatorship, “the trial
court compares the evidence of the conditions that existed at the time of the entry of
the prior order with the evidence of the conditions that existed at the time of the
hearing on the petition to modify”). Texas law has imposed “significant hurdles”
before a possession order may be modified. In re C.H.C., 392 S.W.3d 347, 352
51
(Tex. App.—Dallas 2013, no pet.). This is to ensure stability and continuity for
children. Id.
C. Appellees did not prove a material and substantial change had occurred.
Appellees filed their suit in 2018, alleging that they were modifying a 2015
order. [CR11] They then moved to consolidate their suit with the 2015 suit, which
the trial court did. [CR18, 45] When the case was severed out again, none of the
pleadings or orders from before the filing of Appellees’ petition were transferred to
this current suit. [CR382–87] But, their grandparent access suit was modifying the
previous order, “as provided by chapter 156.” See Tex. Fam. Code Ann. §
153.432(a)(2). Nowhere throughout the trial, however, did Appellees mention the
previous order or the conditions that existed during the previous order, except to say
that the adopting parents were the managing conservators. [2RR10:18–20]
Appellees spent nearly all of their testimony talking about things that had happened
since they filed, although E.L. did discuss pictures that were possibly from around
the time or before the prior order would have been signed. [2RR37:13–38:23]
Because the trial court did not have evidence to compare of the conditions at
the time of the 2015 order and the time of trial, the trial court had no evidence upon
which to exercise its discretion. See Nellis, 596 S.W.3d at 926; In re W.C.B., 337
S.W.3d at 514. Accordingly, the trial court abused its discretion by ordering
possession and access by Appellees. Therefore, this Court should reverse and
52
render, denying Appellees’ petition. Alternatively, this Court should reverse and
remand for further proceedings.
Conclusion
The trial court erred by not dismissing Appellees’ suit because the affidavit
was insufficient to prove either a complete denial of access or significant
impairment. The statute requiring the affidavit does not mention a parent being the
one withholding access or the parental presumption, so Appellees were required to
prove significant impairment, which they failed to do. Accordingly, this Court
should reverse and render dismissal of Appellees’ petition.
Alternatively, the trial court erred by ordering access by Appellees because
they did not satisfy all of the elements required at trial. They did not prove a
complete denial of access or significant impairment. And they did not prove that
they were a parent of a parent of the child, because they admitted that their son’s
parental rights had been terminated already, or that their son satisfied any of the
requirements. Accordingly, this Court should reverse and render denial of
Appellees’ petition, or alternatively, reverse and remand.
they did not prove that granting their petition was in the best interest of the child.
They failed to even mention the best interest of the child at trial. Accordingly, this
53
Court should reverse and render denial of Appellees’ petition, or alternatively,
reverse and remand.
they did not prove material and substantial change. They pleaded to modify a 2015
order and moved to consolidate their case with the 2015 case. But they failed to ever
discuss the conditions at the time of the original order at trial, although pictures were
discussed. The trial court had nothing to compare from the prior order to the time
of trial. Accordingly, this Court should reverse and render denial of Appellees’
petition, or alternatively, reverse and remand.
Prayer
Appellants pray the Court reverse and render dismissal of Appellees’ petition.
Alternatively, Appellants pray the Court reverse and render denial of Appellees’
petition. Alternatively, Appellants pray the Court reverse and remand for further
proceedings.
54
Respectfully submitted,
KoonsFuller, P.C.
(817) 481-2710 telephone
(817) 481-2637 facsimile
By: /s/ Paul M. Leopold

Paul M. Leopold
State Bar Number 24089110
Attorney for Appellants, K.L. and C.L.
Certificate of Compliance
I certify that this document was produced on a computer using Microsoft

Word and contains 9,618 words, as determined by the computer software’s word-
count function, excluding the sections of the document listed in TEXAS RULE OF
APPELLATE PROCEDURE 9.4(i)(1).
/s/ Paul M. Leopold

Paul M. Leopold
55
Certificate of Service
I certify that on June 25, 2020, I served a copy of Appellants’ Brief on the
parties listed below by electronic service and that the electronic transmission was
reported as complete. My e-mail address is paul@koonsfuller.com.
John T. Eck
Robert Stites, Attorney at Law,
A Professional Corporation
933 West Weatherford Street
john@stitesattorney.com
Attorney for Appellees, M.L. and E.L.
Lori A. Spearman
504 North Oak Street, Suite 6
Roanoke, Texas 76262
lorispearman@aol.com
Amicus Attorney
Dinah Stallings
Hurst, Texas 76053
dmsnotice@gmail.com
Attorney for biological father, R.L.
John H. Cayce
john.cayce@kellyhart.com
Joe Greenhill
joe.greenhill@kellyhart.com
Kelly Hart & Hallman, LLP
201 Main Street, Suite 2500
Attorneys for biological mother, W.O.
/s/ Paul M. Leopold

Paul M. Leopold
56
Appendix
1. Order of Termination and Order In Suit Affecting the Parent-Child
Relationship, signed April 9, 2020.
2. Order to Bifurcate, signed April 22, 2020.
3. Findings of Fact and Conclusions of Law, signed June 9, 2020.
4. Tex. Fam. Code Ann. § 153.432.
5. Tex. Fam. Code Ann. § 153.433.
57
325-576094-15 FILED
TARRANT COUNTY
4/8/2020 2:45 PM
CAUSE NO. 325-576094-15 THOMAS A. WILDER
DISTRICT CLERK
IN THE INTEREST OF § IN THE DISTRICT COURT OF

§
§ TARRANT COUNTY, TEXAS
§
A CHILD § 325TH JUDICIAL DISTRICT
ORDER OF TERMINATION AND

ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP
On February 3, 4, 5 and 6, 2020, the Court heard this case.
Appearances
Petitioners, and , appeared in person and through

attorney of record, John T. Eck, and announced ready for trial.
Respondent, appeared in person and through attorney of record, David

Routzon, and announced ready for trial.
Respondent, , appeared in person and through attorney of record, David

Routzon, and announced ready for trial.
Respondent, , mother of the child, appeared in person and through

attorney of record, Dinah Stallings, and announced ready for trial.
Respondent, , father of the child, appeared in person and

through attorney of record, Dinah Stallings, and announced ready for trial.
The Amicus Attorney, LORI A. SPEARMAN, and co-counsel, WHITNEY L. VAUGHAN,

appeared in person and announced ready for trial.
Jurisdiction
The Court, after examining the record and hearing the evidence and argument of counsel,
finds that it has jurisdiction of this case and of all the parties and that no other court has continuing,
exclusive jurisdiction of this case. All persons entitled to citation were properly cited.
A jury was duly selected, all questions of fact were submitted to the jury with regard to
termination, and a verdict was returned on February 5, 2020, and duly filed.
Record
The record of testimony was duly reported by the court reporter for the 325 th District Court.
ORDER OF TERMINATION AND ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP PAGE]
323
The Court finds that the following child is the subject of this suit:
Name:
Sex: Female
Birth date:
Home state: Texas
Termination
The Court finds by clear and convincing evidence that has:
1. engaged in conduct or knowingly placed the child with persons who engaged
in conduct that endangers the physical or emotional wellbeing of the child;
and
2. knowingly placed or knowingly allowed the child to remain in conditions or

surroundings that endangered the physical or emotional well being of the
child.
The Court also finds by clear and convincing evidence that termination of the parent-child
relationship between the father, , and the child, the subject of this suit, is
in the best interest of the child.
IT IS THEREFORE ORDERED that the parent-child relationship between the father,

, and the child, the subject of this suit, is TERMINATED.
The Court finds by clear and convincing evidence that has:
1. voluntarily left the child alone or in the possession of another without

providing adequate support of the child and remained away for a period of at
least six months;
2. failed to support the child in accordance with her ability during the period of
one year ending within six months of the date of the filing of the petition on
October 19, 2018; and
3. engaged in conduct or knowingly placed the child with persons who engaged
in conduct that endangers the physical or emotional wellbeing of the child.
The Court also finds by clear and convincing evidence that termination of the parent-child
relationship between the mother, , and the child, the subject of this suit, is
in the best interest of the child.
IT IS THEREFORE ORDERED that the parent-child relationship between the mother,

, and the child, the subject of this suit, is TERMINATED.
ORDER OF TERMINATION AND ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP PAGE2
324
Inheritance Rights
IT IS ORDERED that the right of the child to inherit from and through
and are terminated.
Managing Conservator
IT IS ORDERED that and are appointed sole

managing conservators of the child, the subject of this suit. The Court finding this to be in the best
interest of the child.
Visitation and Access by the Paternal Grandparents
IT IS ORDERED that the paternal grandparents, and

, shall have possession of the child at the time mutually agreed to in advance by the
parties and in absence of mutual agreement, IT IS ORDERED that the paternal grandparents shall
have possession of the child under the specified terms set out in this possession order as follows:
Weekends
I. On the third weekend of each month (as determined by the third Friday of
each month), on the Sunday of each such weekend with the period of
possession beginning at 10:00 a.m. and ending at 6:00 p.m., that same day.
2. On the third weekend (as detennined by the third Friday of each month)
during the months of April, July, September and December of each year, with
the period of possession to begin when school is regularly dismissed on
Friday (4:00 p.m. if school is not in session) and ending the following Sunday
at 6:00 p.m.
Other Access
1. IT IS ORDERED that and shall

be allowed access to the child's school to obtain information on the child, talk
to teachers, and be allowed to visit with the child at school no more than one
time per month and attend activities at school that and
are expected or invited to attend.
2. IT IS ORDERED that and , shall

take the child to her volleyball practices and tournaments scheduled during
their time of possession, as they are given notice via the parties' Our Family
Wizard application program.
General Terms and Conditions
The terms and conditions of possession and access are as follows:
I. and are ORDERED to surrender the

child to and at the beginning of
ORDER OF TERMINATION AND ORDER TN SUTT AFFECTING THE PARENT-CHILD RELATIONSHIP PAGE3
325
each period of and possession
at the residence of and .
During the months of April, July, September, and December, if a period of

possession begins at the time the child's school is regularly dismissed,
and are ORDERED to surrender the
child to and at the beginning of
each such period of possession at the school in which the child is enrolled. If
the child is not in school, and
shall pick up the child at the residence of and
at 4:00 p.m., and and are
ORDERED to surrender the child to and
at the residence of and
at 4:00 p.m. under these circumstances.
2. and are ORDERED to return the

child to the residence of and at the end
of each period of possession.
3. Each conservator is ORDERED to return with the child the personal effects
that the child brought at the beginning of the period of possession.
4. Each conservator may designate any competent adult to pick up and return
the child, as applicable. IT IS ORDERED that a conservator or a designated
competent adult be present when the child is picked up or returned.
5. Each conservator is ORDERED to give notice to the person in possession of

the child on each occasion that the conservator will be unable to exercise that
conservator's right of possession for any specified period.
6. Written notice shall be deemed to have been timely made if received before
or at the time that notice is due.
Communication Order
IT IS ORDERED that with regard to communication between the parties,

and , and and , are ORDERED to
contact OurFamilyWizard.com to obtain an annual subscription no later than February 22, 2020, and
shall maintain their subscriptions until the child reaches 18 and graduates from high school. Both
parties are ORDERED to utilize this program so that their communication is documented by using
the Message Board, and to provide a method by which they may advise each other of their schedules
and the child's schedules and to communicate concerning scheduling changes or requests with regard
to each party's time with the child. The parties may communicate in any other manner in addition to
utilizing this program, but other methods of communication shall be in addition to and not in lieu of
utilization of this program. All notices required by any order of this court shall be given via the
parties' OurFamilyWaizard.com application program.
326
Permanent Iniunction
The Court finds that, because of the conduct of and ,

and and , a permanent injunction against them should be
granted as appropriate relief because there is no adequate remedy at law. The permanent injunction
granted below shall be effective immediately and shall be binding on and
, and and ; on their agents, servants, employees, and
attorneys; and on those persons in active concert or participation with them who receive actual notice of
this order by personal service or otherwise.
IT IS ORDERED that and , and

and (hereinafter "parties") are enjoined from the following:
I. Disparaging the other parties to the child or in the presence of hearing of the
child and asking the child about the other parties' activities while in possession
of the child whether in person, by phone, or in writing or knowingly allowing
another to do so.
2. Referring to the other parties in an obscene, degrading, ridiculing, insulting, or

threatening manner to the child or in the presence or hearing of the child whether
in person, by phone, or in writing or knowingly allowing another to do so.
3. Delivering oral messages to the other parties through the child.
4. Discussing the custody, past, present or future with the child.
and , and and

waive issuance and service of the writ of injunction, by stipulation or as evidenced by
the signatures of their attorneys below. IT IS ORDERED that and
, and and shall be deemed to be duly served with
the writ of injunction.
Amicus Attorney's Fees
The Court finds that the Amicus Attorney, LORJ A. SPEARMAN, has satisfactorily discharged
all of her duties and obligations under Chapter 107 of the Texas Family Code and it is ORDERED that
she is hereby discharged and relieved of any further rights, duties, and responsibilities in this cause.
The Court finds that LORJ A. SPEARMAN has incurred legal fees and expenses which were a
necessary benefit for the child.
IT IS FURTHER ORDERED that LORJ A. SPEARMAN is awarded a judgment of $1,940.67

against and for attorney's fees and cost incurred in this case
with the lawful interest rate from the date the judgment is signed until paid, for which let execution issue.
IT IS FURTHER ORDERED that LORI A. SPEARMAN is awarded a judgment of

$3,250.32 against for attorney's fees and cost incurred in this case with
the lawful interest rate from the date the judgment is signed until paid, for which let execution issue.
ORDER OF TERMINATION AND ORDER IN SUIT AFFECTING THE PARENT-CHILD RELATIONSHIP PAGES
327
IT IS FURTHER ORDERED that LORI A. SPEARMAN is awarded a judgment of
$2,150.33 against for attorney's fees and cost incurred in this case with ·
the lawful interest rate from the date the judgment is signed until paid, for which let execution issue.
All costs in this case are adjudged against the party who incurred them for which let
execution issue.
Denial of Other Relief
IT IS ORDERED that all relief requested in this case and not expressly granted is denied.
SIGNED on _April
__ 9 _ _ _ _ _ _ _ _., 2020.
APPROVED AS TO FORM ONLY:
ROBERT T STITES, ATTORNEY AT LAW The ROUTZON LAW FIRM, PLLC.

A PROFESSIONAL CORPORATION Attorneys for Respondents,
Attorneys for Petitioners,
1670 Keller Parkway, Suite 253
933 West Weatherford Street Keller, Texas 76248
Fort Worth, Texas 76102 Telephone: (817) 616-0734
Telephone: (817) 336-7577 Facsimile: (817) 841-8324
Facsimile: (817) 336-7583 Email: david@silvasroutzon.com
Email: john@stitesattomey.com
By:_ _ _ _ _ _ _ __ __ _ __ By:_ _ _ _ _ __ _ _ _ _ _ __
JOHNT. ECK DAYID C. ROUTZON, JR.
State Bar No. 00792480 State Bar No. 24033136
328
DINAH M. STALLINGS LAW OFFICE OF LORI A. SPEARMAN,
Attorney for Respondents, A PROFESSIONAL CORPORATION
Amicus Attorney
504 N. Oak Street, Suite 6
1244 Southridge Ct., Suite 105 Roanoke, Texas 76262
Hurst, Texas 76053 Telephone: (817) 490-5075
Facsimile: (817) 280-9738 Email: lorispearman@aol.com
Email: dmsnotice@gmail.com
By: _ _ _ _ _ _ _ _ _ _ _ __ By: _ _ _ _ _ _ _ _ _ _ _ __
DINAH M. STALLIN GS LORI A. SPEARMAN
State Bar No. 13012825 State Bar No. 00798524
HOPPES LAW FIRM, PLLC.

Co-Counsel to Amicus Attorney
959 W. Glade Road
Hurst, Texas 76054
Tel: (817) 283-3999
Fax: (817) 283-5040
Email: eservice@hoppeslawfirm.com
By: _ _ _ _ _ _ _ _ _ _ _ __
WHITNEY L. VAUGHAN
329
All costs in this case are adjudged againsl the party who incurred them for which Jet
execution issue.
Denial of Other Re!il!{
IT IS ORDERED that all reliefrequested in this case and not expressly granted is denied.
SIGNED on _____________, 2020.
JUDGE PRESJDTNG
APPROVED AS TO FORM ONLY:
ROBERT T STITES, ATTORNEY AT LAW Tbe ROUTZON LAW FIRM, PLLC.

A PRC)FESSIONAL CORPORAT!ON Atwmeys for Respondents~
Attorneys for Petitioners,
l 670 Keller Parkway, Suite 253
933 West Weatherford Street Keller, Texas 76248
Fort Worth, Texas. 76102 Telephone: (817) 616-0734
Telephone: (81 ~ 336-7577 Facsimile: (817) 841-8324
Facsimile: 7) '36-7.583 Email: dav.!9@si.lvasroutzon.com
ByA'l'-===+-="-'------=----- By:
JOHNT °CK ·---,D;c-A-:c,,-,,rccD:--C::::,_-:Rc-:OccU:-;;_,1:::.Z::cO::-:N"'',....,.lccR-.~ - -
State Bar 'o. 00792480 State Bar No. 24033136
DINAHM. STALLINGS LAW OFFICE OF LOR! A. SPEARMAN,

Attorney for Respondents, A PROFESSIONAL CORPORATION
Amicus Attorney
5 04 N. Oak Street, Suite 6
1244 Southridge Cc, Suite i 05 Roanoke, Texas 76262
Hurst__ Texas 76053 Telephone: (817) 490-5075
Facsimile: (81.7) 280-9738 rnrnil: lorispearman(f"yao.l.com
Email: dmsnotic.e(iv.gmail.com
By=-------~~---- By:_~_-~-=--?-!=~~-
DINAH M. STALLINGS LORI A. SPEA
State Bar No. I 3012825 State Bar No. 00798524
ORDER O'FTERMrNATIONAND ORDER IN SUIT AP'FECTJNG THE PARENJ'..GfJLD RELA110NSHIP PAGE6
330
< •• 325 680984 20
325-576094-15 FILED
TARRANT COUNTY
4/21/202011:24AM
THOMAS A. WILDER
NO. 325-576094-15 DISTRICT CLERK
IN THE INTEREST OF § IN THE DISTRICT COURT

§
§ 325TH JUDICIAL DISTRICT
§
A CHILD § TARRANT COUNTY, TEXAS
ORDER TO BIFURCATE
On April 9, 2020, the Court considered the Motion to Bifurcate of and

.
IT IS ORDERED that the following documents from Cause Number 325-576094-15 be

bifurcated into a separate case: ,.__,
,.__,
C~;,
Date Filed Title of Document r;~ J .

(..r, -·
=
,_
02/16/2018 Original Petition for Grandparent Possession or Access
-•-j '
N
"
:::0
N
02/16/2018 Citation-Issued on
02/16/2018
02/16/2018
02/16/2018
Citation-Issued on
Citation-Issued on
Show Cause-Issued on
:::-,,
----..
02/16/2018 Show Cause-Issued on
02/16/2018 Show Cause-Issued on
02/16/2018 Notice of Hearing for Temporary Orders
02/20/2018 Service Return-Citation (
02/20/2018 Service Return-Show Cause ( )
02/20/2018 Service Return-Show Cause (
02/20/2018 Service Return-Citation (
02/20/2018 Service Return-Show Cause (
02/20/2018 Show Cause-Return Executed (
02/20/2018 Citation-Return Executed ( )
02/20/2018 Show Cause-Return Executed (
02/20/2018 Citation-Return Executed (
02/20/2018 Service Return Citation (
02/20/2018 Citation-Return Executed (
02/23/2018 Motion to Consolidate
02/27/2018 Respondent's Original Answer
02/27/2018 Motion to Deny Relief in Suit for Grandparent Access and Motion to Dismiss
02/28/2018 Waiver of Service
02/28/2018 Notice of Hearing on Motion to Deny Relief in Suit for Grandparent Access
and Motion to Dismiss
03/05/2018 Subpoena (Duces Tecum)
03/06/2018 Brief in Support of Grandparent Possession and Access
03/07/2018 Associate Judge's Report
ORDER TO BIFURCATE
382
03/07/2018 Order on Motion to Consolidate
03/09/2018 Confirmation Letter
03/09/2018 Notice of Reset Hearing for Temporary Orders
03/09/2018 Notice of Reset Hearing
03/14/2018 Motion to Release Records
03/15/2018 Agreed Order on Motion to Release Records
03/15/2018 Order Denying Motion to Deny Relief
04/03/2018 Subpoena Duces Tecum-filed into 325-634 796-18 and not transferred to 325-
576094-15
04/04/2018 Appearance-
04/04/2018 Order for Drug Testing
05/01/2018 Request for De Novo Hearing
05/02/2018 Counter-Notice of De Novo Appeal
05/02/2018 Motion to Sign Temporary Orders
05/02/2018 Response to Request for De Novo Appeal
05/08/2018 Notice of Hearing-Motion to Sign Temporary Orders
05/08/2018 Notice of Hearing-Request for De Novo Hearing
05/10/2018 Letter from Attorney Eck to Court Coordinator
05/10/2018 Notice of Hearing-Request for De Novo Hearing Swear in Only
05/10/2018 Notice of Hearing-Counter-Notice of De Novo Appeal
05/25/2018 Subpoena Duces Tecum-filed into 325-634796-18 and not transferred to 325-
576094-15
06/01/2018 Subpoena
06/05/2018 Letter of Reset Hearing
06/06/2018 Exhibit Receipt
06/22/2018 Order for Community Supervised Visitation
07/05/2018 Motion for Pretrial Conference
07/10/2018 Notice of Hearing on Motion for Pretrial Conference
08/02/2018 Pre-Trial Docket Control Scheduling Order
08/02/2018 Agreed Order of Referral for Mediation
I 0/09/2018 Certificate of Completion Co-Parenting Essentials-
I 0/09/2018 Certificate of Completion Co-Parenting Essentials-
10/10/2018 Motion to Modify Temporary Orders
10/11/2018 Notice of Hearing on Motion to Modify Temporary Orders
10/17/2018 Motion for Withdrawal of Counsel-Attorney Sisemore
10/18/2018 Hearing Cancellation Confirmation Letter
10/18/2018 Order on Motion for Withdrawal of Counsel
I 0/22/2018 Response to Motion to Modify Temporary Orders
I 0/22/2018 Motion to Modify Temporary Orders
I 0/24/2018 Notice of Filing Business Records Affidavit
10/26/2018 Entry of Appearance of Counsel-David Routzon
I 0/29/2018 Certificate of Completion-
10/29/2018 Certificate of Completion-
_O_R_D_E_R_T_O_B_I_FU_R_C_A_T_E_(_L_O_N_'G-/L-IG-H-TF_O_O_T_)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _,,((ji)
.--~~~T'c~
383~~~./
I 0/29/2018 Petitioner's Certificate of Written Discovery Directed to Respondents
11/05/2018 Amended Entry of Appearance of Counsel
11/06/2018 Certificate of Completion Co-Parenting Class-
11/06/2018 Certificate of Completion Co-Parenting Class-
11/15/2018 Notice of Hearing- Request for De Novo Appeal
11/15/2018 Counter-Notice of De Novo Appeal
11/21/2018 Amicus Attorney's Original Answer
01/08/2019 Motion to Modify Temporary Orders

01/11/2019 Motion to Compel Discovery and for Sanctions
01/14/2019 Motion for Reduction of Expert's Report to Tangible Form
01/14/2019 Motion for Additional Temporary Orders
01/16/2019 Motion to Strike Illegally Obtained Evidence and Motion to Strike Expert
01/16/2019 Notice of Hearing on Motion for Reduction of Expert's Report to Tangible
Form
01/16/2019 Order Setting Hearing on Motion to Compel
01/16/2019 Notice of Hearing on Motion to Strike
01/18/2019 First Amended Motion to Strike lllegally Obtained Evidence and Motion to
Strike Expert
01/18/2019 Notice of Hearing on First Amended Motion to Strike
01/22/2019 Motion for Enforcement of Possession Order
01/22/2019 Response to Petitioner's First Amended Motion to Strike
01/22/2019 Agreed Order of Referral for Mediation
01/22/2019 Pre-Trial Control Scheduling Order
02/01/2019 Citation Issued on
02/01/2019 Show Cause Issued on
02/01/2019 Motion to Enforce
02/01/2019 Order to Appear on Motion for Enforcement
02/05/2019 Citation Return on
02/05/2019 Show Cause Return on
02/05/2019 Citation Return on
02/05/2019 Return Show Cause on
02/05/2019 Show Cause-Return Executed
02/05/2019 Citation- Return Executed
02/05/2019 Show Cause-Return Executed
02/05/2019 Citation-Return Executed-
02/05/2019 Service Request Form
ORDER TO BIFURCATE
384
02/05/2019 Notice of Hearing on Motion to Enforce
02/11/2019 Motion to Sign Order Striking Illegally Obtained Evidence
02/13/2019 Notice of Hearing-Additional Temporary Orders
02/13/2019 Notice of Hearing- Motion to Sign
02/15/2019 Motion for Continuance
02/19/2019 Notice of Hearing on Motion for Continuance
02/19/2019 First Supplemental Motion for Enforcement of Possession or Access
02/20/2019 Order to Appear
03/05/2019 Petitioner's Original Answer and Special Exceptions to Respondent's Motion
for Enforcement
03/07/2019 Notice of Filing Certificates of Completion
03/07/2019 Notice of Filing Certificates of Completion
03/07/2019 Order Striking Illegally Obtained Evidence
03/07/2019 Order Resetting Hearing
03/11/2019 Deputy Reporter Statement
03/11/2019 Letter from Attorney John T Eck
03/18/20 I 9 Second Supplemental Motion for Enforcement of Possession or Access
03/26/2019 Motion for Additional Deposit to Secure Fees
03/26/2019 Proposed Notice of Hearing on Motion to Modify Temporary Orders
03/27/2019 Notice of Hearing
03/28/2019 Proposed Order to Appear-Motion for Enforcement
03/28/2019 Proposed Order to Appear-Second Motion for Enforcement
03/29/2019 Order on Special Exceptions
04/01/2019 Order to Appear-4/11/2019
04/01/2019 Order to Appear-4/11/19
04/09/2019 First Amended Motion to Modify Temporary Orders
04/11/2019 Order of Enforcement by Contempt and Suspension of Commitment
04/12/2019 Request for De Novo Hearing
04/12/2019 Proposed Notice of Hearing
04/12/2019 Associate Judge's Report-Corrected
04/18/2019 Notice of Hearing on Request for De Novo Hearing
04/22/2019 Letter from Attorney John T Eck
04/23/2019 Deputy Reporter Statement
04/26/2019 Further Temporary Orders
_O_R_D_E_R_T_O_D_lf_·U_R_C_A_T_E_(_L_O_N_G_/L_I_G_H_T_F_O_O_T_)_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _-4~SJ···•·•.............
..-·;t-~~~
385 .......... _.....

~.tSJa .~
' : .
05/14/2019 Brief in Support of Motion for Additional Deposit to Secure Fees

06/26/2019 Judge's Ruling on Amicus Attorney's Fees
10/28/2019 Petitioner's Certificate of Written Discovery Directed to Petitioner
11/04/2019 Further Temporary Orders After De Novo Appeal
11/06/2019 Motion to Enforce
11/11/2019 Respondent's Original Answer-
I 1/15/2019 Notice of Hearing on Motion to Enforce
11/26/2019 Mediated Settlement Agreement-Not Settled
12/11/2019 Motion for Continuance/Motion for Additional Deposit to Secure Fees
12/18/2019 Notice of Hearing on Motion to Enforce
12/19/2019 Motion for Status Conference
12/30/2019 Motion for Drug Screening
01/02/2020 Petitioner's Certificate of Written Discover Directed to Petitioner

01/03/2020 Motion for Psychological Evaluation
01/08/2020 Response to Motion for Psychological Evaluation
01/14/2020 Test Request Form-
01/14/2020 Test Request Form-
02/03/2020 Petitioner's and Exhibit List
02/05/2020 Respondent's Exhibit List
02/10/2020 Letter from Attorney Eck to Judge regarding Brief in Support of Grandparent
Possession/Access
02/11/2020 Brief in Support of Denial of Grandparent Possession or Access
02/12/2020 Letter from Attorney Eck to Judge regarding Brief
02/12/2020 Judge's Rendition
02/20/2020 Exhibit Receipt-February 6
03/12/2020 Motion to Bifurcate
03/12/2020 Motion to Sign Order of Termination and Order in Suit Affecting the Parent-
Child Relationship
03/19/2020 Proposed Notice of Hearing on Motion to Bifurcate
04/08/2020 Affidavit of John T Eck
04/08/2020 Supplemental Motion to Bifurcate/Motion to Sever
04/09/2020 Order of Termination and Order in Suit Affection the Parent-Child
Relationship
04/09/2020 Rendition of the Court
····~~
-------------------------+(,~;;;.?,i¥.~~)
ORDER TO BIFURCATE -':'~~fi~4;/
)
',;?'-ls,a ..'/
386·····•·•······ ..
04/15/2020 Petition to Modify Parent-Child Relationship
SIGNED ON _A..,_p_ri_l2_2_ _ _ _ _ _, 2020.
~Q.WJJ.,
JUD
ORDER TO BIFURCATE (
387
-~
-
c:::,->-.
~
~
c;::::;,
~
CAUSE NO. 325-680984-20 ti,~:
__..- . ~ ~
~--::: \
IN THE INTEREST OF § IN THE DISTRICT C08R.T Or°
-'-:·· -0
n ,,. -'°
§ TARRANT COUNTY, ~ S ~
f1' -- ••
~-::::::: ~
A CHILD § 325TH JUDICIAL DISTRIG;t C-1'
FINDINGS OF FACT AND CONCLUSIONS OF LAW
In response to the request of Respondents, and , the

Court makes and files the following as original Findings of Fact and Conclusions of Law in
accordance with rules 296 and 297 of the Texas Rules of Civil Procedure.
Findings ofFact
1. The child, the subject of this suit, is as follows:
Name:
Sex: Female ·
Birth date:
Home state: Texas
2. Respondent, , is the mother of the child Respondent,

, is the father of the child. Petitioners, and
, are the paternal grandparents of the child and and
, Respondents, are the managing conservators of the child.
3. On February 16, 2018, and filed an

original suit for possession of or access to the child.
4. and are the parents of

.
5. At the time and filed their suit on

February 16, 2018, had been incarcerated in jail or in prison during the
three-month period preceding the filing of the petition.

February 16, 2018, did not have a court-ordered access or possession
schedule with the child as his schedule was detennined by agreement and/or arranged by the parties
under the terms set forth by and .

February 16, 2018, had not had his parental rights tenninated.

February 16, 2018, had not had her parental rights tenninated.
FINDINGS OF FAC.,:AND CONCLUSIONS OF LAW PAGEi

9. and are not the parents of the child and that
they are not "parents" for purposes of the statute and thus not entitled to a presumption that they were
acting in the child's best interest, even if they are managing conservators.
10. No parent of the child has objected to and

seeking an order for possession and access to the child.
11. and are bonded to the child and have had

significant contact with the child.
12. and have engaged in conduct to deny

and possession of or access to the child.
13. has violated temporary orders allowing and

to have possession of the child, denying them possession of the child on
January 19, 2019, February 16, 2019, and March 16, 2019.
14. is curremly on community supervision for violating temporary

orders allowing and to have possession of the child on .
January 19, 2019, Febrwuy 16, 2019, and March 16, 2019.
15. On November 19, 2018, and on December 22, 2018, and

, placed a listening device on the child,. by hiding the listening device in a hair
bow, and then sent the child for her visit with and .
IS. Audio recording obtained on November 19, 2018, and on Deqember 22, 2018, were
obtained illegally, in violation of the Federal Wiretap Act, 18 U.S.C. § 2S11(1), and the Texas
Wiretap Act, TEX. PENAL CODE § I 6.02{b).
16. It is in the best interest of the child that and

have possession and access.
17. Any findings of fact that is a conclusion of law shall be deemed a conclusion of law.
Conclusio11s o(Law
1. The Court has jurisdiction of the parties, of the child, and of the subject matter of this
case.
2. and have standing in this matter and

and are not "parents" for the purposes of the statute and thus,
not entitled to a presumption that they were acting in the child's best interest, even if they are
managing conservators.
.3. . . and had standing to request possession of

or access to the child when they ti led, and the subsequent tennination of the parents' rights and even
a subsequent adoption by and does not deprive
and of standing in their action seeking possession and access,
where no parental rights termination order or adoption order was in place when they filed.
FINDINGS OF FACTAND CONCLUSIONS Of I.AW PAGEZ

4. All prerequisites for and have been met.
5. and have shown it is in the best interest of

the child to have possession and access.
6. Petitioners are entitled to possession and access with the child under the terms and
conditions set forth in the Order.
-.::.~ _ _ _ ____,, 2020.
SIGNED on _ _ _c;.J_"-~~-_l_._
1
FfNDINGSOf fACTAND c0Ncws10NSOf YW PA.GE3

§ 153.432. Suit for Possession or Access by Grandparent, TX FAMILY § 153.432
Vernon's Texas Statutes and Codes Annotated

Family Code (Refs & Annos)
Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
Annos)
Subtitle B. Suits Affecting the Parent-Child Relationship
Chapter 153. Conservatorship, Possession, and Access (Refs & Annos)
Subchapter H. Rights of Grandparent, Aunt, or Uncle (Refs & Annos)
V.T.C.A., Family Code § 153.432
§ 153.432. Suit for Possession or Access by Grandparent
Effective: September 1, 2009

Currentness
(a) A biological or adoptive grandparent may request possession of or access to a grandchild by filing:
(1) an original suit; or
(2) a suit for modification as provided by Chapter 156.
(b) A grandparent may request possession of or access to a grandchild in a suit filed for the sole purpose of requesting the relief,
without regard to whether the appointment of a managing conservator is an issue in the suit.
(c) In a suit described by Subsection (a), the person filing the suit must execute and attach an affidavit on knowledge or belief
that contains, along with supporting facts, the allegation that denial of possession of or access to the child by the petitioner would
significantly impair the child's physical health or emotional well-being. The court shall deny the relief sought and dismiss the
suit unless the court determines that the facts stated in the affidavit, if true, would be sufficient to support the relief authorized
under Section 153.433.
Credits
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 2005, 79th Leg., ch. 484, § 3, eff. Sept. 1,
2005; Acts 2009, 81st Leg., ch. 1113, § 11, eff. Sept. 1, 2009.
Notes of Decisions (14)
V. T. C. A., Family Code § 153.432, TX FAMILY § 153.432

Current through the end of the 2019 Regular Session of the 86th Legislature
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.
© 2020 Thomson Reuters. No claim to original U.S. Government Works. 1

§ 153.433. Possession of or Access to Grandchild, TX FAMILY § 153.433
Vernon's Texas Statutes and Codes Annotated

Family Code (Refs & Annos)
Title 5. The Parent-Child Relationship and the Suit Affecting the Parent-Child Relationship (Refs &
Annos)
Subtitle B. Suits Affecting the Parent-Child Relationship
Chapter 153. Conservatorship, Possession, and Access (Refs & Annos)
Subchapter H. Rights of Grandparent, Aunt, or Uncle (Refs & Annos)
V.T.C.A., Family Code § 153.433
§ 153.433. Possession of or Access to Grandchild
Effective: September 1, 2009

Currentness
(a) The court may 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;
(C) is dead; or
(D) does not have actual or court-ordered possession of or access to the child.
(b) An order granting possession of or access to a child by a grandparent that is rendered over a parent's objections must state,
with specificity that:
(1) at the time the relief was requested, at least one biological or adoptive parent of the child had not had that parent's parental
rights terminated;

§ 153.433. Possession of or Access to Grandchild, TX FAMILY § 153.433
(2) the grandparent requesting possession of or access to the child has overcome the presumption that a parent acts in the best
interest of the parent's child by proving by a preponderance of the evidence that the 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;
(C) is dead; or
(D) does not have actual or court-ordered possession of or access to the child.
Credits
Added by Acts 1995, 74th Leg., ch. 20, § 1, eff. April 20, 1995. Amended by Acts 1997, 75th Leg., ch. 1397, § 1, eff. Sept. 1,
1997; Acts 2005, 79th Leg., ch. 484, § 4, eff. Sept. 1, 2005; Acts 2009, 81st Leg., ch. 1113, § 12, eff. Sept. 1, 2009.
Notes of Decisions (80)
V. T. C. A., Family Code § 153.433, TX FAMILY § 153.433

Current through the end of the 2019 Regular Session of the 86th Legislature
End of Document © 2020 Thomson Reuters. No claim to original U.S. Government Works.

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CAUSE NUMBER 02-20-00143-CV

IN THE INTEREST OF H.L.L., A CHILD

Appeal from the 325th District Court, Tarrant County, Texas,

Attorney for Appellants,

APPELLANTS REQUEST ORAL ARGUMENT

IN THE INTEREST OF H.L.L., A CHILD

Identity of Parties and Counsel

Appellants: K.L. and C.L.

Appellees: M.L. and E.L.

Appellees’ Trial and

Amicus Attorney: Lori A. Spearman

Trial Judge: Honorable Judith Wells

Biological Mother: W.O.

Biological Father: R.L.

Identity of Parties and Counsel ..................................................................................2

Table of Contents .......................................................................................................5

Index of Authorities ...................................................................................................9

Citations to the Record and Parties ..........................................................................11

Statement Regarding Oral Argument ......................................................................11

Statement of the Case ...............................................................................................12

Issues Presented for Review ....................................................................................13

2. Alternatively, three elements are required before a trial court may

3. Alternatively, the best interest shall always be the primary

4. Alternatively, some courts of appeals have held that, when modifying

Statement of Facts ....................................................................................................14

C. Appellees filed their petition with attached affidavit. ................................. 15

E. The child had a relationship with Appellees and others. ............................. 17

F. The parties did not communicate well. ........................................................ 19

H. Appellees referred to prior hearings but offered no evidence or

I. The trial court granted Appellees’ petition. ................................................. 21

B. The statute requires facts to show both a complete denial of access

C. Appellees did not prove a complete denial of access. ............................. 28

D. Appellees did not prove significant impairment. ..................................... 28

B. The statute has three elements.................................................................. 36

2. The second element: Complete denial and significant impairment. .....37

3. The third element: A parent of a parent of the child.............................38

B. A grandparent access suit requires the grandparent to prove best

C. Appellees failed to prove best interest by legally or factually

B. Some courts of appeals have held that the material-and-substantial-

C. Appellees did not prove a material and substantial change had

Certificate of Compliance ........................................................................................55

Certificate of Service ...............................................................................................56

The Clerk’s Record will be cited to as [CR PDF Page Number].

The Reporter’s Record will be cited to as [Volume Number RR PDF Page

Appellants, K.L. and C.L., may be referred to as the adopting parents.

Appellees, M.L. and E.L., may be referred to as the paternal grandparents.

W.O. may be referred to as the biological mother.

R.L. may be referred to as the biological father.

Statement Regarding Oral Argument

Nature of the case. This is a grandparent access case. [CR10]

Course of proceedings. Adopting parents were managing conservators of the

1. Appellees were required to file an affidavit with supporting facts that

3. Alternatively, the best interest shall always be the primary

4. Alternatively, some courts of appeals have held that, when modifying

A. The adopting parents were managing conservators.

adopting parents, were managing conservators of the child, H.L.L. [2RR10:15–20]

See In re H.L.L., No. 02-20-00120-CV. The adopting parents allowed Appellees,

as the child’s parents. [2RR53:5–7]

the clothes issue prior to E.L.’s ketchup test.

C. Appellees filed their petition with attached affidavit.

Appellees filed their grandparent access suit in February 2018, requesting to

Appellee’s petition, stated:

arrested because E.L. had a CPS history. [CR14]