351 S.W.3d 131
Tex. App.2011Background
- Ricky Derzapf, a father, appeals a trial court judgment granting Connie Johnson grandparent visitation with his children.
- Connie is Jennifer Derzapf’s mother and the grandmother of A.J.D., J.B.D., and B.G.D.; Jennifer died in 2001, and Connie and her husband previously helped care for the children.
- In 2003 Connie and Randy Johnson sought custody via a SAPCR and obtained an ex parte TRO; allegations included Ricky endangered the children and undermined Connie’s parental role, leading to a dismissal without prejudice after a hearing.
- In 2004 Connie sought grandparent visitation; a 2005 temporary order granted Johnsons monthly visitation after expert Dr. Otis opined in part that Ricky’s removal of access harmed the children emotionally.
- The Texas Supreme Court granted mandamus relief in 2007, holding Connie lacked standing and that denial of access to Connie alone did not show significant impairment; case proceeded to full merits trial in 2009–2011.
- At trial, Dr. Otis updated his opinions, finding renewed attachment to the Johnsons but concluding the current visitation level did not meet the children’s emotional needs; the court awarded Connie grandparent visitation on Saturdays each month.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Standing of Connie for grandparent access | Derzapf: Connie lacks standing under §153.432. | Connie has standing as a biological grandmother under §153.432. | Connie has standing under §153.432. |
| Law of the case application to the merits | Derzapf contends the law-of-the-case doctrine governs reconsideration of the mandamus decision. | Connie argues the issues are not identical to mandamus questions and law of the case does not apply. | Law of the case applies; the trial court abused its discretion under §153.433. |
| Whether denial of access to Connie alone would significantly impair the children | Derzapf asserts no significant impairment from denial of Connie alone given evidence. | Connie argues denial would significantly impair emotional well-being; Dr. Otis supports impairment. | The court abused its discretion; Connie failed to prove significant impairment. |
| Remand for attorney’s fees | Derzapf is prevailing; fees should be reconsidered. | Fees should be evaluated by trial court after remand with standards for prevailing party. | Case remanded to reconsider Ricky’s attorney’s fees. |
Key Cases Cited
- In re J.M.T., 280 S.W.3d 490 (Tex. App.—Eastland 2009) (standing and elements for grandparent access under §153.433 and §153.432)
- In re Smith, 260 S.W.3d 568 (Tex. App.—Houston [14th Dist.] 2008) (standing to seek possession or access; framework for grandparent access)
- Derzapf, 219 S.W.3d 327 (Tex. 2007) (mandamus—standing and failure to show significant impairment; law-of-the-case implications)
- In re Scheller, 325 S.W.3d 640 (Tex. 2010) (trial court error in temporary grandparent visitation order; abuse of discretion)
- Troxel v. Granville, 530 U.S. 57 (2000) (constitutional considerations in grandparent visitation; deference to fit parent)
- Briscoe v. Goodmark Corp., 102 S.W.3d 714 (Tex. 2003) (law-of-the-case doctrine as tool for judicial economy)