Roby v. Adams
| Decision Date | 03 January 2002 |
| Docket Number | No. 08-00-00080-CV.,08-00-00080-CV. |
| Citation | 68 S.W.3d 822 |
| Parties | Stephen Hugh ROBY, Appellant, v. Ronald ADAMS and Jennie Adams, Appellees. |
| Court | Texas Court of Appeals |
Barrett Keith Brown, Law Offices of Barrett Keith Brown, Sherman, for Appellant.
John Kermit Hill, Hill, Ellis, Hill & Shea, Sherman, for Appellees.
Before Panel No. 2: BARAJAS, C.J., McCLURE, and CHEW, JJ.
Appellant Stephen Hugh Roby appeals from the trial court's granting of grandparent access to Appellees Ronald and Jennie Adams. On appeal, Roby brings a single issue: (1) the trial court erred in granting grandparent access to the Adams. We reverse and remand.
Roby and Salena Adams were married on September 26, 1986, and the couple had two children, Jared and Jordan, born June 6, 1994 and August 2, 1995, respectively. In September 1998, Salena died from breast cancer.
The Adams testified that they were very close to their daughter, Salena, and the two grandchildren and saw them weekly. After Salena became ill, the Adams saw the grandchildren three to four times per week and made telephone calls to the grandchildren every day. However, after Salena's death, Roby reduced the contact between the Adams and his children to about twice a week then refused the Adams any contact with the children, beginning in late December 1998 or January 1999.
When Roby refused to return the phone calls and terminated any communications with the Adams, the Adams filed for grandparent access on February 4, 1999. After a hearing and consideration of two social study reports, the trial court granted grandparent access to the Adams on December 1, 1999. The visits were to be on the first weekend of each month, December 26 through December 29 of each year, and for any two weeks period during the summer months.
Roby has asked this Court to determine the difficult question of the factual sufficiency of the trial court's judgment that granting grandparent access to the Adams would be in the best interest of Roby's children. When addressing a challenge to the factual sufficiency of the evidence, the reviewing court looks at all the evidence to determine whether the finding is so against the great weight and preponderance of the evidence as to be manifestly unjust. See In re King's Estate, 150 Tex. 662, 244 S.W.2d 660, 661-62 (1951). We do not substitute our judgment for that of the fact finder's and will sustain the fact finder's conclusions if any probative evidence supports the finding. See Galveston Co. Fair & Rodeo, Inc. v. Kauffman, 910 S.W.2d 129, 135 (Tex.App.-El Paso 1995 writ denied). We may not interfere with the fact finder's resolution of the conflicts in the evidence or weigh the credibility of the witnesses and their testimony. See Reynolds v. Kessler, 669 S.W.2d 801, 807 (Tex.App.-El Paso 1984, no writ).
Tex.Fam.Code Ann. § 153.433 (Vernon Supp.2002) governs the granting of grandparent access to a child in this case:
The court shall order reasonable 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; and
(2) access is in the best interest of the child, and at least one of the following facts is present:
(A) the grandparent requesting access to the child is a parent of a parent of the child and that parent of the child ... has been found by a court to be incompetent or is dead....
Tex.Fam.Code Ann. § 153.002 (Vernon 1996) states that the best interest of a child should "always be the primary consideration of the court in determining the issues of conservatorship and possession of and access to the child." A trial court has wide discretion in determining the best interest of a child. See Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). The decision of a trial court will be reversed only if, after considering the record as a whole, it is clear that the trial court abused its discretion. See id.
The U.S. Supreme Court stated in Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), the presumption that a fit parent acts in the best interest of his or her child. See id. at 69-72, 120 S.Ct. at 2062-63 ().
Heeding the holding in Troxel, we will consider the evidence in its entirety in determining whether the trial court abused its discretion in holding that grandparent access was in the best interest of the Roby children, against the presumption that Roby acted in the best interest of his children. During trial, the testimony and evidence directly conflicted.
The social study investigator, Sheri Fallon, testified that Roby was concerned about any contact between his children and the Adams because he thought the Adams' home was not sufficiently clean, the Adams did not believe in medicating for illness, and as his largest concern, the discipline applied to the children by Mrs. Adams. Roby described to her how Mrs. Adams would tell Jared that the devil made him do bad things; grab Jared and not let go of him until he told the "devil to be gone;" and was "overboard with the church thing."
At the hearing, Roby testified that he would not permit his children to be with the grandparents, unless he was in supervision, because he thought the children would be in danger:
...
...
Roby specified that his concerns about the Adams' attitude toward medication originated from the fact that his wife Salena had died from cancer two years after its diagnosis and in that time, she had refused any medical treatment for the cancer. She had instead chosen to look to God and pray, and Roby felt that Salena's decision resulted from Mrs. Adams' encouragement, leading to Salena's death.
The repugnance that Roby feels for the Adams also originated from his witnessing Mrs. Adams' method of disciplining his children. Roby said that the Adams told the children crickets were demons and when they saw a cricket, the children would scream, "Daddy, there is a devil in my room." The children were also unable to sleep for fear. Mrs. Adams also disallowed stuffed toys or pinatas because they were "bad." In particular, when the older child, Jared, misbehaved, Mrs. Adams would grab him then ask why he had done that. Jared would respond, "The devil made me do it," and Mrs. Adams would ask, "Is that the right thing to do?" and in reply he said, "No." Roby's mother, Ruby Roby, also witnessed Mrs. Adams grab Jared and tell him "Demon be gone" when he had misbehaved. When he returned from work unexpectedly one day, Roby said that he surprised Mrs. Adams pinning Jared down in a rite of exorcism while Salena was present. The events happened repeatedly in front of Roby and Salena, but Roby was told each time by Mrs. Adams that she knew best. Salena supported her mother, and Roby felt that he could do nothing at the time to stop Mrs. Adams.
The Adams denied each and every reason given by Roby for barring any visits between the Adams and Roby's children. Mr. Adams testified that his daughter Salena had made the decision to not seek medical treatment on her own. Mrs. Adams said that she was a trained registered nurse and had encouraged Salena to seek a second medical opinion when the cancer was diagnosed. It was also her understanding that Salena had made the decision to not seek medical treatment. She had also never held down the children and tried to exorcise demons from them.
In support of their petition for grandparent access, the Adams testified that they have had a loving relationship with their daughter Salena and the grandchildren and they saw each other nearly every day. The Adams said that they believed having visiting rights to the children would be in their best interest.
Fallon recommended in her report for the children to have regular visits with the Adams. Fallon reported that "[i]t is very apparent that Mr. and Mrs. Ronald Adams love their grandchildren, Jared and Jordan Roby, very much." She also expressed her concern over Roby's anger management.
Salena had left Roby in 1995 and filed for a protective order in Collin County, allegedly due to abuse. Although Salena filed for divorce, Roby and Salena attended counseling, and the marriage continued. Roby said that when Salena got upset, she would yell, and he would ask her to calm down and talk. However, the Adams expressed concern over Roby's temper and produced a tape that Salena had made of conversations between Roby and herself. Fallon stated that in the tape, a woman named "Salena," a second woman (unidentified), and a man named "Steve" were conversing, and "Steve" denied abusing the children, although he later said on the tape that he had lost his temper with the children and had shaken them when they were one week old. Roby said that his anger was due to his frustration with his in-laws and that he had learned much from a men's group for anger-control to which the marriage counselor had referred him.
Roby said that Jared was very intelligent, outgoing, and sensitive. He was aware that Jared missed his mother but that Jared kept...
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