Decided: June 27, 2008
The Texas Supreme Court frames the question as “whether the trial court abused its discretion in awarding temporary grandparental visitation without affording the custodial parent an opportunity to be heard. See Tex. Fam. Code § 153.433.”
The Court’s answer is that — at least when all parties “concede [the custodial parent] is a fit parent” — a trial court must afford that parent a greater level of due process before granting grandparent visitation, even on an interim basis.
The “interim” order in this case was a strange one as well. It was issued after a hearing was held about whether or not to permanently grant grandparent visitation.
It was necessitated by a social worker’s inability to attend the hearing, and nominally it was to provide more process to the mother (the ability to cross-examine that worker about her report). Here’s the background:
The relator, Stacy D. Chambless, is the mother of seven-year-old J.A.C. In a suit affecting the parent-child relationship, the trial court appointed Stacy managing conservator and J.A.C.’s father, Bobby D. Cook, Jr., possessory conservator of J.A.C. with the paternal grandparents supervising Cook’s visitation. After Cook died in a motorcycle accident, the paternal grandparents filed a petition seeking visitation under section 153.432 of the Texas Family Code. At the hearing on this petition, the grandparents claimed J.A.C. would be significantly harmed if he did not know his father’s side of the family, especially J.A.C.’s two half-brothers. In support of their claim, the grandparents offered into evidence a social study report by Rhonda Hopkins, a court-appointed social worker, who opined that depriving the paternal grandparents access would be “very detrimental” to J.A.C.’s emotional well-being. The social worker was not able to attend the hearing and thus Stacy did not have an opportunity to cross-examine her about the report.
Stacy moved for a directed verdict after the presentation of the grandparents’ case-in-chief, arguing that the grandparents had failed to show that J.A.C. would suffer significant physical or emotional impairment absent visitation with his grandparents. The trial court, however, denied the motion and recessed the hearing until the social worker was available to testify. The trial court then signed an “interim” visitation order, allowing the grandparents access to J.A.C. for three days each month over Stacy’s objection and without giving her an opportunity to present evidence on the subject.
The feeling one gets from reading the Court’s account of these proceedings is that it perceived the district court as being more concerned about the outcome than the process. Otherwise, perhaps, the district court would have simply excluded the testimony or ruled on the directed verdict motion.
The Texas Supreme Court’s analysis, while not explicitly distinguishing between state-law reasons why more process would have been due or the federal constitutional background, held that this level of process was not enough — even for an interim order.
Those litigating in this area would do well to study two of the aspects of this record that the Court emphasized. First, the Court noted that “the paternal grandparents concede Stacy is a fit parent.” Second, the Court noted that there was a factual dispute to be resolved about the propriety of visitation, that the mother “argues that if given the opportunity, she would present evidence that denying the grandparents visitation is in her child’s best interest.”
The first of those relates to substantive due process. If a parent is conceded to be fit, then there is no question that they hold the bundle of rights relating to parenting. The second of these is an aspect of procedural due process. Without some dispute over facts to be resolved, a procedural due process case falls apart at the seams. (The relief afforded for procedural due process is, after all, just more “process”.)
This case was really about that latter category — procedural due process — and the Court’s resolution does not predetermine what may happen if the trial court ever can track down that elusive witness and finish the hearing.
The Court granted mandamus relief vacating the temporary visitation order.