Petition for Writ of Certiorari — In re Scheller

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Supreme Court

ip p ig a U.S.

Vie 101092 WAR ?- 2011

NSHBICE OF THE CLERK

IN THE

Supreme Court of the United States

IN RE: RICHARD SCHELLER,

Petitioner

On Petition for a Writ of Extraordinary Relief

to the Texas Supreme Court and

the Honorable Leonard Saenz,

Associate Judge for Travis County, Texas

PETITION FOR EXTRAORDINARY RELIEF

CECILIA M. WOOD,

ATTORNEY AND

COUNSELOR AT LAW, P. C.

1122 Colorado Street,

Suite 100B

Austin, Texas 78701

(512) 708-8783

Cecilia@ceciliawood.com

Counsel for Petitioner

QUESTION PRESENTED

Question 1: Must the T'roxel analysis be applied to all

facets of a case which burden the decision making

authority of a parent or only to the ultimate grant of

relief? See Troxel v. Granville, 530 U.S. 57; 1208. Ct.

2054, 147 L. Ed. 2d 49 (2000) (plurality op.).

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Relator is Richard Scheller. Respondent is the

Honorable Leonard Saenz, Associate Judge, Travis

County, Texas. The Real Party in Interest is William

Pemberton. Pursuant to Rule 29.6, Petitioner affirms

that there is no party to the controversy that is a

corporation.

TABLE OF CONTENTS

QUES TIUIN PREBLE) ones kdb vee cence: i

RULE 29.6 STATEMENT ..........0c000ee00. il

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TAB OF AUT IRI oo sks eve ese sess Vv

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CONSTITUTIONAL AND STATUTORY

PE 6 ks 6 oo a Sas oe eek 1

EE ob i ewe ki keel wee ees 4

REASONS FOR GRANTING THE PETITION .... 5

I. Given the fundamental liberty

interests at stake, the Troxel analysis

must be applied to all facets of a case

which burden the decision making

authority of a parent. See Troxel v.

Granville, 530 U.S. 57; 120 S. Ct. 2054,

147 L. Ed. 2d 49 (2000) (plurality op.) ...... 6

iil

A. Pemberton’s lack of

standing deprived the trial court of

subject matter jurisdiction .......... 9

B. The appointment of a court

appointed expert to serve as the

guardian ad litem and _ the

psychological expert violated

Scheller’s due process right to

make decisions concerning the

care, custody, and control of his

NE aca ey av wee ak O 13

Uk mk a gra 15

TABLE OF AUTHORITIES

Cases Page (s)

In re Pensom, 126 S.W.3d 2&1, 254 (Tex. App. —

San Antonio 2003, orig. proceeding) .... 8,11

In re Richard Scheller, 2010 Tex. LEXIS 969

he ete) arr Lé& 8

In re Scheller, 325 S.W. 3d 640 (Tex. 2010, r’hg.

denied 12/10/10)(per curiam) ........ passim

In re Scheller, 2009; Tex. App. LEXIS 10070

Tex.App.— Austin, Dec. 23, 2009) ........ 1,5

In re Smith, 260 S.W.3d 568, 573 (Tex. App. —

Houston [(14" Dist.] 2008) ............... 4

Meyer v. Nebraska, 262 U.S. 390, 399, 401

ER Ce ey cae eee ee 6

Pierce v. Society of Sisters, 268 U.S. 510, 534-

TS ie ol cake a oak eS Mae 6, 14

Frince v. Massachusetts, 321 U.S. 158 (1944) ..... 7

Stanley v. Illinois, 405 U.S. 645; 92 S.Ct. 1208,

on ime GOL CISTZ) ..... 2.2.22 00. 12, 16

Texas Ass’n of Bus v. Texas Air Control Bd..,

852 S.W.2d 440 (Tex. 1993) ........... 9,12

Troxel v. Granville, 530 U.S. 57; 1208S. Ct.

2054, 147 L. Ed. 2d 49 (2000) (plurality

ee Ls ad sey eke 5, 6, 7, 8, 10, 14, 16

Constitutional and Statutory Provisions

Ad, ee Meee. MG. BLY, G1 we cece 2,6

ar rarer 1

pe a ree 10

pe ee 8 2 10

Tex. Fam. Code §105.001 (2009) .......... 9,10, 14

Tex. Fam. Code §105.001 (f) (2009) ............ 15

Tex. Fam. Code §107.021 (2009) ............ 2,4,9

Tex. Fam. Code §153.432 (2009) ........ 2,9,10, 11

Tex. Fam. Code §153.433 (2009) .. 3,9, 11, 12, 13, 14

Tex. Fam. Code §153.434 (2009) .......... 3,10, 11

Other Authorities

See Op. Tex. Att’y Gen. No. GA-0260 (2004) ..... 11

PETITION FOR EXTRAORDINARY RELIEF

OPINIONS BELOW

The opinion of the Texas Supreme Court is

reported at Jn re Scheller, 325 S.W. 3d 640 (Tex. 2010,

rhg. denied 12/10/10)(per curiam); App., infra, la-13a.

The denial of the Motion for Rehearing and the Motion

to Reinstate the Stay was not published. Jn re Richard

Scheller, 2010 Tex. LEXIS 969; App., infra, 14a. The

opinion of the Third Court of Appeals was a

memorandum opinion and was also unpublished. Jn re

Scheller, 2009 Tex. App. LEXIS 10070 (Tex. App. —

Austin 2009); App., infra, 44a-45a. As is the practice

in Texas State Court, the verdict or order of the trial

court was not reported. App., infra, 15a-26a.

JURISDICTION

The opinion of the Texas Supreme Court was

rendered on the November 5, 2010 and a timely

petition for rehearing was denied on December 10,

2010. This Court’s jurisdiction rests on 28 U. S. C.

§1651.

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

Section One of the Fourteenth Amendment to

the United States Constitution reads in relevant part:

“..nor shall any State deprive any person of life,

liberty, or property, without due process of law; nor

deny to any person within its jurisdiction the equal

protection of the laws.” U.S. Const. amend. XIV, § 1.

The challenged portions of the Texas Family

Code which control this case are as follows:

“ (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 in

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.”

Tex. Fam. Code §153.432 (2009).

“The court shall order reasonable possession of

or access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least

one biological or adoptive parent of the child has

not had that parent’s parental rights

terminated;

(2) the grandparent requesting possession of or

access to the child overcomes the presumption

that a parent acts in the best interest of the

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

(d) does not hxve actual or court-ordered

possession of or access to the child.”

Tex. Fam. Code §153.433 (2009).

“ A biological or adoptive grandparent may not

request possession of or access to a grandchild

if:

(1) each of the biological parents of the

grandchild has:

(A) died;

(B) had the person’s parental rights

terminated; or

interest in child or an affidavit of

relinquishment of parental rights under

Chapter 161 (Termination of the Parent-

Child Relationship) ad the affidavit

designates an authorized agency, licensed

child-placing agency, or person other than

the child’s stepparent as the managing

conservator of the child; and

(2) the grandchild has been adopted or is the

subject of a pending suit for adoption by a

person other than the child’s stepparent.”

Tex. Fam. Code §153.434 (2009).

“(a) In a suit in which the best interests of a

child are at issue, other than a suit filed by a

governmental entity requesting termination of

the parent-child relationship or appointment of

the entity as conservator of the child, the court

may appoint one of the following: ........

(3) a guardian ad litem. ....

(b) In determining whether to make an

appointment under this section, the court: ......

(2)may make an appointment only if the

court finds that the appointment is

necessary to ensure the determination of

the best interests of the child......

Tex. Fam. Code §107.021 (2010).

STATEMENT

This case involves recurring constitutional

challenges to certain provisions of the Texas Family

Code which define the circumstances under which a

grandparent may bring suit against a parent for

possession of and access to a grandchild.

In August 2009, the real party interest,

William Pemberton (hereinafter, “Pemberton”) filed

suit seeking possession of and access the children, the

subject of the suit and requesting the appointment of

a psychologist to act as a guardian ad litem for the

children and an expert witness for the Court.

Petitioner, Richard Scheller (hereinafter, “Scheller)

filed aresponse denying the allegations and requesting

that the suit be dismissed. App., infra, 41a-43a. The

respondent did not dismiss the suit at the hearing on

October 12, 2009, but instead entered temporary

orders on November 12, 2009. App., infra,15a-26a.

The Third Court of Appeals originally granted

Petitioner’s request for Stay, but ultimately upheld the

temporary orders and dismissed the Stay. Jn re

Scheller, 2009; Tex. App. LEXIS 10070 (Tex. App.

Austin, Dec. 23, 2009); App., infra, 44a-45a. The

Texas Supreme Court, the highest civil court in the

State of Texas, held that Pemberton failed to meet his

burden of proof and instructed the trial court to lift the

temporary orders pertaining to possession of and

access to the children. They did not instruct the trial

court to lift the remaining orders or dismiss the case.

Although Scheller raised the issues of standing and

subject matter jurisdiction, they were not addressed in

the original opinion and the Motion for Rehearing was

denied without opinion. In re Scheller, supra, 325

S.W.3d 640; In re Scheller, 2010 Tex. LEXIS 969

(Tex., Dec. 10, 2010); App., infra, la-13a; 14a; 62a-65a.

REASONS FOR GRANTING THE PETITION

If, as expected, Petitioner prevails again at trial,

it will render Petitioner’s constitutional challenges

moot, thereby depriving this Court of jurisdiction. In

the interim, the failure of the court to apply the 7roxel

analysis to all aspects of the case and grant Scheller’s

request for dismissal has and will continue throughout

the process to cause him irreparable harm. Troxel, 530

U.S. at 68-71. Having exhausted all review in the

state courts, Scheller invokes the jurisdiction of this

Court to provide the extraordinary relief necessitated

by the interference with his fundamental liberty

interest. A determination by this Court that the

constitutional protections afforded to a parent by the

Fourteenth Amendment apply from the inception of a

case and throughout the course of the entire litigation,

will provide protection to Scheller and many other

parents and increase judicial economy throughout the

states. U.S. Const. amend. XIV, § 1.

I. Given the fundamental liberty interests at

stake, the Troxel analysis must be applied to all

facets of a case which burden the decision

making authority of a parent. See Troxel v.

Granville, 530 U.S. 57; 120 S. Ct. 2054, 147 L. Ed.

2d 49 (2000) (plurality op.).

Scheller’s situation is almost identical to that of

Tommie Granville. See Troxel v. Granville, 530 U.S.

57, 61; In re Scheller, 325 S.W. 3d 640, 641-642 (Tex.

2010); App., infra,la -18a. As in Troxel, this case

involved a conflict over the frequency and manner of

visitation. /d. Additionally, Pemberton requested and

the trial court ordered the appointment of a

psychologist to evaluate the circumstances of the

parties and the children and to make

recommendations that Scheller is required to follow.

App., infra, 24a. Pemberton did not allege and no

court found that Scheller was an unfit parent. App.,

infra, 1a-13a; 15a-26a; 27a-40a.

In 7'roxel v. Granville, this Court reaffirmed the

“interest of parents in the care, custody, and control of

their children” as “perhaps the oldest of the

fundamental liberty interests.” Troxel, 530 U.S. at 65;

citing, Meyer v. Nebraska, 262 U.S. 390, 399, 401

(1923) (includes the right of parents to “establish a

home and bring up children” and “to control the

education of their own.”’); Pierce v. Society of Sisters,

268 U.S. 510, 534-535 (1925) (“liberty of parents and

guardians’ includes the right “to direct the upbringing

and education of children under their control.”.... “and

to recognize and prepare him for additional

obligations.”’); Prince v. Massachusetts, 321 U.S. 158

(1944) (“right of parents to direct the upbringing of

their children). In regard to the issue of possession

and access, the Texas Supreme Court followed the

same analysis as the Troxel court. Troxel, 530 U.S. at

68-71; In re Scheller, 325 S.W. 3d at 643-644; App.,

infra, 5a-7a. Specifically, the Texas Supreme Court

heid that: 1) Pemberton did not meet his burden to

overcome the presumption that Scheller was acting in

the best interest of his children and 2) Scheller

appears to be willing to allow Pemberton to see the

girls. Jd. Accordingly, the Texas Supreme Court

instructed the trial court to lift the temporary orders

to the extent they awarded Pemberton possession of

and access to the Scheller’s children. Jd. at 646; App.,

infra, 13a. Inexplicably, the Texas Supreme Court

declined to apply those same principles to the

Scheller’s remaining complaints.

“ The burden of litigating a domestic relations

proceeding can itself be “so disruptive of the parent-

child relationship that the constitutional right of a

custodial parent to make certain basic determinations

for the child’s welfare becomes implicated.” Troxel,

530 U.S. at 74, (noting Justice Kennedy’s opinion at

101). Such burden is evident in the case at bar. For

example, simply because this suit is pending, Scheller

is prohibited by the Travis County Standing Order

Regarding Children, Property and Conduct of the

Parties from doing things parents are normally

entitled to do, such as removing the children from the

State of Texas without the written agreement of

Pemberton or a court order. App., infra, 33a. He is

limited as to what he can say to his own children.

App., infra, 22a.

Scheller is also required to submit his private

family life to investigation by a court appointed expert

and comply with her recommendations. App., infra,

24a. Appointing a _ psychologist, appointing a

guardian ad litem, or taking any action other than

dismissing Pemberton’s cause of action, is nothing

more than an effort “to further question the ability of”

Scheller “to make the best decisions concerning the

rearing of” his “children.” Troxel 530 U.S. at 68-69.

The Texas Supreme Court found this argument

“unpersuasive”. In re Scheller, 325 S.W.3d at 645;

App., infra, lla.

No discussion or guidance was provided in

regard to the issues of standing or subject matter

jurisdiction. In re Scheller, 325 S.W.3d 640, supra,; In

re Scheller, 2010 Tex. LEXIS 969 (Tex., Dec. 10, 2010);

App., infra, la-13a; 14a.

Due to the nature of the liberty interest at

stake, each statue challenged by Scheller should be

subjected to a strict scrutiny review. Troxel, 530 U.S.

at 80. Each must be “narrowly tailored to serve a

compelling government interest.” Jd. “No Texas court

that has considered the Grandparent Access Statute

has articulated a compelling government interest

served by the statute.” Jn re Pensom, 126S.W.3d 251,

254 (Tex. App. — San Antonio 2003, orig. proceeding).

Nor did the Texas Supreme Court choose to articulate

one in the case at bar. See In re Scheller, 325S.W. 3d

640 (Tex. 2010); App., infra, la-13a.

A. Pemberton’s lack of standing deprived the

trial court of subject matter jurisdiction.

“Standing is a constitutional prerequisite to

maintaining a lawsuit under both federal and Texas

law...”. Texas Ass’n of Bus v. Texas Air Control Bd., 852

S.W.2d 440,444 (Tex. 1993). It 1s a component of

subject matter jurisdiction and is a constitutional

prerequisite to maintaining a lawsuit in Texas. Id. As

Pemberton failed to meet his burden of proof, the

statutes under which Pemberton claims standing and

seeks relief cannot be constitutionally applied to

Scheller. In re Scheller, 325 S.W. at 643; Tex. Fam.

Code § §153.432; 153.433; 154.434; See also 105.001;

107.021; 107 (a) (3) and (b) (2). Further, Section

153.433 (3) (c) of the Texas Family Code discriminates

against Scheller based solely on his status as a former

widower. Tex. Fam. Code §153.433 (3) (c) (2009).

“Texas courts have consistently held that a

grandparent’s standing to request access is conferred

by Section 153.432, not 153.433". In re Smith, 260

S.W.3d 568, 573 (Tex. App. — Houston [14 Dist.]

2008); Tex. Fam. Code §153.432 (2009). The only

limitations are that the grandparent be a biological or

adoptive grandparent. Tex. Fam. Code §153.432 (a)

(2009). Standing is specifically precluded, if both

parents, rather than one parent, are: dead, have had

their rights terminated, or have executed affidavits

walving or relinquishing their parental rights and the

child is or will be adopted by someone other than a

step-parent. Tex. Fam. Code §153.484 (2009). Other

statutes are available to address situations referenced

by Justice O’Connor in which a grandparent has

assumed the responsibility of providing actual care for

the child or seeks to do so. Troxel 530 U.S. at 64; Tex.

Fam. Code §§ 102.003; 102.004. The statutes

pertinent to this cause, relate only to circumstances

similar to those in the case at bar, in which a

grandparent seeks to have possession of or access to a

child, at his or her discretion, and for limited periods

of time. Tex. Fam. Code §§153.432 and 153.434

(2009).

A facial review of Section 153.432 of the Texas

Family reveals that there is no stated requirement

either to consider the fitness of the parent or to

overcome the presumption that the fit parent is acting

in the best interest of the child. Tex. Fam. Code

§153.432 (2009). There is also no requirement that the

child of the grandparent filing suit fall into one of the

four categories required for the grandparent to

ultimately prevail on the merits. Nothing in this

statute bars a grandparent from bringing suit,

tendering discovery, requesting the appointment of one

or more experts to investigate the home and

circumstances of the parents, obtaining temporary

support, obtainimg injunctive relief, prohibiting the

parent from moving beyond a specific geographic area,

and whatever otther relief a given trial court, in its

wide discretion, may deem necessary “for the safety

and welfare of the child.” In re Scheller, 325 S.W.3d at

644; Tex. Fam. Code §105.001. Additionally, whatever

interest the state may have in furthering the

relationship between the grandparent and the child

while one parent remains alive and fit, it disappears

without further question when both parents die, are

proven unfit or voluntarily relinquish their nghts and

duties to the child. Tex. Fam. Code §153.434 (2009).

Neither statute specifies a compelling or even a

rational basis for permitting the grandparent’s

intrusion into the parent’s decision making process.

Tex. Fam. Code §§ 153.432 and 153.434 (2009).

Therefore, the statutes can only withstand a facial

challenge, if they are interpreted to imply a

requirement that the grandparent either prove the

parent unfit or overcome the presumption that a fit

parent acts in the best interest of his child.

Such an_ interpretation would not’ be

inconsistent with Texas law. The basis for the actual

grant of relief to a grandparent is contained in Section

153.433 of the Texas Family Code. Tex. Fam. Code

§153.433 (2009). In 2004, the Texas Attorney General

opined in regard to the previous codification of Section

153.433 of the Texas Family Code that, “In order to

avoid an unconstitutional application of the statute, a

court must require a grandparent to ‘overcome the

presumption that a fit parent acts in the best interest

of his or her child”. See Op. Tex. Att’y Gen. No. GA-

0260 (2004); citing, In re Pensom 126 S.W.3d 251 (Tex.

App. - San Antonio 2003, orig. proceeding). It is

impossible to discern a compelling reason for not

applying the same standard to all aspects of an event

as intrusive as a lawsuit. Since Pemberton failed to

meet the requisite burden of proof, the statutes were

unconstitutional, as applied to Scheller. In re Scheller,

325 S.W.3d at 644. Consequently, Pemberton lacked

standing; thereby depriving the trial court of subject

matter jurisdiction.

Without subject matter jurisdiction, the trial

court was required to grant Scheller’s request to

dismiss the suit in its entirety. App., infra, 42a.

“Error in assuming constitutional or statutory

jurisdiction not conferred upon a court in question can

be neither waived nor ignored.” Texas Ass’n of Bus v.

Texas Air Control Bd., 852 S.W.2d. at 479.

Additionally, the statute which determines

whether relief will be granted if Pemberton at some

point acquires enough evidence to meet his burden of

proof, discriminates against Scheller based solely on

his status. Tex. Fam. Code §153.433 (3) (c) (2009).

“The State cannot consistent with due process

requirements, merely presume that unmarried fathers

in general, and petitioner in particular, are unsuitable

and neglectful parents.” Stanley v. Illinois, 405 U.S.

645; 92 S.Ct. 1208, 31 L.Ed2d 551 (1972). Illinois’

denial to Peter Stanley of hearing based solely on his

status as an unwed father was held to be a denial of

due process and equal protection of the laws

guaranteed by the Fourteenth Amendment. Jd. at 649.

Likewise, Scheller’s subjection to litigation based

solely on status must draw the same conclusion.

None of the categories that subject the parent to

endure the interference are based on the acts or

omissions of the parent. Tex. Fam. Code §153.433 (3)

status of the other parent that is the child of the

grandparent seeking relief. Id. The innocent parent

has no means of avoiding or curing the perceived

“a

defect.

Scheller in particular is being deprived of

parental rights afforded to other parents and forced to

suffer ongoing intrusion into the privacy of his family’s

life, simply by virtue of having been a widower at one

point in his life. Tex. Fam. Code §153.433 (3) (c)

(2009). If his first wife were in a coma, had

abandoned the family, or simply chose to not exercise

her court-ordered periods of possession, Scheller would

be able to freely determine when and how Pemberton

could visit with the children. Jd.

The statute also creates a preemptive burden.

The grandparent is not required to file suit within a

certain period of time following the occurrence that

permits relief or even prior to a change in status. Tex.

Fam. Code §153.433 (2009). Once the triggering event

has occurred, a parent must make every decision

knowing that disapproval by an in-law or former in-

law could result in a lawsuit. At the time Pemberton

filed suit, Scheller had remarried and Pemberton and

his wife disapproved of Scheller’s new wife. In re

Scheller, 325 S.W.3d at 642; App. infra, 2a.

B. The appointment of a court appointed expert

to serve as the guardian ad litem and the

psychological expert violated Scheller’s due

process right to make decisions concerning the

care, custody, and control of his daughters.

The Texas Supreme Court acknowledged that,

“despite the considerable discretion vested in courts to

issue temporary orders ‘for the safety and welfare of

the child,’ a court cannot act to infringe on a party’s

constitutional rights.” In re Scheller, 325 S.W.2d at

644; citing Troxel v. Granville, supra.; App. infra, Ya.

Nor can a trial court “infringe on the fundamental

right of parents to make child rearing decisions simply

because [it] believes a better decision could be made.”

Id. at 642; citing, Troxel v. Granville, 530 U.S. 57; 120

S. Ct. 2054, 147 L. Ed. 2d 49 (2000) (plurality op.);

App. infra, 4a. Nevertheless, they went on to reason

that “the trial court’s appointment of an evaluative

expert does not infringe on Scheller’s rights because

such an appointment is allowed by law..” Id., at 644;

App., infra, 9a. Words do not become constitutional

simply by virtue of being codified. “Rights guaranteed

by the Constitution may not be abridged by legislation

which has no reasonable relation to some purpose

within the competency of the State.” Pierce v. Society

of Sisters, 268 U.S. 510, 535, 45 S.Ct. 571, 69 L. Ed.

1070 (1925).

It is true that Texas law permits the

appointment of a guardian ad litem “in a suit in which

the best interests of a child are at issue...” Tex. Fam.

Code §105.001 (2009). Even if this Court believes that

not every statute must reject the best interest

standard and require a showing of harm, the Texas

legislature has already determined that Texas

grandparents must meet that higher burden. §153.433

(2) (2009). Further, not only is the expert authorized

to invade the sanctity of Scheller’s current marriage

and relationship with his children, in order to obtain

evidence for Pemberton’s suit, she is also empowered

to substitute her judgment for that of Scheller’s. App.

infra, 24a. Should Scheller determine that the expert’s

decisions were not in the best interest of his children

and refuse to cooperate, his refusal is punishable by

contempt, which includes the possibility of fines and

confinement in the county jail. Tex. Fam. Code

§105.001 (f). Once again, as the Texas Supreme

Court had already determined that Scheller was not

unfit and that Pemberton failed to overcome the

presumption that Scheller was acting in the best

interest of the children, the only result can be that the

statute is unconstitutional as applied to Scheller. See

In re Scheller, 325 S.W.2d 640 (Tex. 2010) (per

curiam).

CONCLUSION

Unless each statute utilized to bring and

maintain a lawsuit by a non parent against a parent is

interpreted to require the non parent to meet the

burden of proof equal to that required to obtain the

ultimate relief, then the protections which should be

afforded to every fit parent, will belong only to those

with sufficient funds and stamina to withstand the

perils of litigation.

WHEREFORE, for the reasons stated, petitioner

prays:

1. That a writ of mandamus issue from this

Court, directed to the Honorable Leonard Saenz,

Associate Judge for Travis County, Texas, requiring

said Honorable Leonard Saenz, to show cause on a day

to be fixed by this Court, why mandamus should not

issue from this Court directing said Honorable

Leonard Saenz, to vacate and expunge from the record

the orders entered on November 12, 2009 and to

dismiss Pemberton’s cause in its entirety.

2. In the alternative, that a writ of mandamus

issue from this Court, directed to the Supreme Court

of Texas, requiring said Supreme Court of Texas, to

show cause on a day to be fixed by this Court, why

mandamus should not issue from this Court directing

said Supreme Court of Texas, to consider petitioner's

constitutional challenges regarding standing and

subject matter jurisdiction in accordance with the

opinions rendered by this Court in the cases of Troxel

v. Granville and Stanley v. Illinois. See Troxel v.

Granville, 530 U.S. 57; 120S. Ct. 2054, 147 L. Ed. 2d

49 (2000) (plurality op.); Stanley v. Illinois, 405 U. S.

645, 658; 92 S.Ct. 1208, 31 L. Ed. 2d 551 (1972).

3. That this Court Stay the remaining

temporary orders and injunctions imposed on Scheller

during the consideration of the challenges raised

herein.

4. That petitioner have such additional relief

and process as may be necessary and appropriate in

the premises.

Respectfully submitted,

CECILIA M. WOOD

ATTORNEY AND COUNSELOR

AT LAW, P. C.

1122 Colorado Street, Suite 100B

Austin, Texas 78701

Telephone No.: (512) 708-8783

Facsimile No.: (512) 708-8787

Cecilia@ceciliawood.com

Counsel for Petitioner

APPENDIX

APPENDIX A

IN RE RICHARD SCHELLER, REALTOR

09-1072

SUPREME COURT OF TEXAS

325 S.W.3d 640; 2016 Tex. LEXIS 853; 54 Tex. Sup.

J. 198

November 5, 2010, Opinion Delivered

SUBSEQUENT HISTORY: Rehearing denied by,

Stay demied by Jn re Scheller, 2010 Tex. LEXIS 969

(Tex., Dec. 10, 2010)

PRIOR HISTORY: In re Scheller, 2009 Tex. App

LEXIS 10070 (Tex. App. Austin, Dec. 23, 2009)

OPINION

[**]]

325 S.W3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

(*641} ON PETITION FOR WRIT OF

MANDAMUS

PER CURIAM

In this grandparent-access suit, the trial court

issued temporary order that included granting a

grandfather temporary access to and possession of his

grandchildren. However, the trial court abused its

discretion in issuing the order because the grandfather

did not established by a preponderance of the evidence

that denial of access to or possession of the grand

children would significantly impair their physica!

health or emotional well-being. For the reasons ex

»yressed below, we conditionally grant mandamus relief

} Y5

and direct the trial court to vacate

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **:

54 Tex. Sup. J. 198

its temporary order for access and possession.

Amanda Scheller passed away in September

2007.

She was survived by her two young daughters and

husband, Richard Scheller (“Scheller’). Both before

and after Amanda passed away, her daughters visited

Amanda’s father and step-mother, William Pemberton

(“Pemberton”) and Judy Pemberton (“Judy”), every

four to six weeks 1n Crockett, Texas. During the year

after Amanda’s death, Scheller relied on the

Pembertons for assistance taking care of his two

daughters. The girls currently live in Austin with

Scheller and his new wife, Sylvia

[*642] The Scheller’s relationship[**2] 9 with

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 ‘Tex. Sup. J. 198

the Pembertons began to deteriorate in December

2008. Scheller alleges the conflict began when he took

the children to visit the Pembertons in Crockett on

Christmas day, rather than Christmas eve The

Pembertons blame the conflict, in part, on decreased

frequency of visits, which they attmbute to Scheller’s

relationship with Sylvia. But Scheller claims the

decreased visits were a result, in part, from the

Pembertons admitted refusal to follow set conditions

he laid out for his children’s visits, such as avoiding

certain topics of conversation and adhering to a

particular bed-time. Conflict over the time and

manner of the Pemberton’s visits with the girls

continued throughout 2009. Verba] confrontations

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

about the girls arose on the telephone , in public, and

at the Scheller’s home in Austin.

Pemberton filed suit for grandparent access in

August 2009. See TEX. FAM. Code § 153.432

(providing for suits by grandparents for possession or

access to grandchildren). He petitioned for temporary

access to the girls and for the court to appoint an

expert to evaluate whether denying Pemberton access

to the girls would significantly affect their physical

health or emotional well-being. The [**3] trial court

rendered temporary orders awarding Pemberton the

following access rights: (1) weekly telephone or webcap

access to the girls for up to ten minutes, (2) possession

and access one

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

weekend of every even-numbered month, (3)

possession and access from December 28" through

December 30", and (4) possession and access for either

the second week of July or the week during which a

particular Vacation Bible School is held. The orders

contain general conditions and restrictions that the

Pembertons must follow while the children are with

them. The court also appointed an expert to serve both

as the children’s guardian ad litem and as

psychological expert to evaluate the relationship

between the children and the parties in conflict and

make recommendations regarding whether denying

Pemberton access to his granddaughters would

significantly impair their

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

physical health or emotional well-being.

Scheller sought mandamus relief in the court of

appeals. The court granted temporary relief and

stayed the trial court's temporary order, but

subsequently lifted the stay and denied mandamus

relief. Scheller now seeks mandamus relief from this

Court. He argues that the temporary orders for access

[**4] to and possession of the children and

appointment of an expert violated his fundamental

liberty interest as a parent to have control and

autonomy in making child-rearing decisions. Scheller

requests that we reverse the trial court’s order for

temporary access and render judgment denying

Pemberton’s petition for access and

325 S.W.3d 640, *; 2010 Tex. LEXIS 853,**;

54 Tex. Sup. J. 198

appointment of an _ expert. We address each

contention.

Trial courts have considerable discretion in

making temporary orders for a child’s safety and

welfare in suits affecting the parent-child relationship.

See TEX. FAM. CODE § 105.001. However, trial court

cannot “infringe on the fundamental right of parents

to make child rearing decisions simply because [it]

believes a better decision could be made.” Troxel v.

Grandville, 530 U.S. 57, 72-73, 120 S. Ct. 2054, 147 L.

Ed. 2d 49 (2000) (plurality op.) (Internal quotations

omitted); see also In re Chambless 257 S.W.3d 698, 700

(Tex.2008) (per curiam) (“parents enjoy a

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

fundamental right to make decisions concerning the

care, custody, and control of their children.” (quotation

omitted)). We have held that “so long as a parent

adequately for his or her children (!.e., is fit), there will

normally be no reason for the State to inject itself in to

the [**5] private realm of the family.” Jn re Derzapf,

219 S.W.3d 327, 333 [*643] (Tex. 2007) (per curiam)

(quoting In re Mays-Hooper, 189 S.W.3d 777,

778(Tex.2006) (per curiam) (quoting Troxel, 530 U.S.

at 68)).

Scheller first argues that the trial court

improperly issued the temporary orders for access to

and possession of the children. A trial court abuses its

discretion if it grants temporary access to

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

grandchildren when a grandparent does not

overcome the presumption that a parent acts in his or

her child’s best interest by proving that ‘denial... Of

access to the child would significantly impair the

child’s physical health or emotional well-being.”

Derzapf, 219S.W.3d at 333 (quoting TEX. FAM. CODE

§ 153.483(2) (current version at TEX. FAM. CODE $§

153.433 (a) (2))).

We have granted conditional mandamus relief

in similar cases when a grandparent does not

overcome his “high threshold” burden. Derzapf, 219

S.W.3d at 335; Mays-Hooper, 189 S.w.3d at 778. In

Derzapf, we held that the grandchildren’s “lingering

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

sadness” from lack of contact with the grandparents

did not sufficiently demonstrate significant harm to

the children because the court-appointed psychologist

testified that the sadness did [**6] not “manifest [] as

depression or behavioral problems or acting out” so as

to “rise to a level of significant emotional impairment.”

219 S.W.3d at 330, 332-33. And in Mays-Hooper, we

“

held the trial court erred because it “ did not indicate

any reason why” it should interfere with the parent-

child relationship, and the mother “articulated several

reasons for not wanting to turn her son over to her

mother-in-law[,]” including “differences about church

attendance, what to say about [the father’s] death, and

alleged

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

inattention by her mother-in-law.” 189 S.W3d at 778.

The United States Supreme Court addressed the

issue of grandparent access in Troxel v. Girarduville,

530 U.S. 57, 120 S. Ct. 2054, 147 l. Ed. 2d 49 (20000

(plurality op.). The Court held that a trial court’s

order for grandparent access unconstitutionally

infringed on the parent’s fundamental liberty interest

were there was no evidence that the parent was unfit,

that the children’s health and well-being would suffer,

or that the parent intended to exclude grandparent

access entirely. Id. at 68-71. Accordingly, the Court

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

affirmed the Washington Supreme Court’s holding

that “{p]Jarents have a right to limit visitation of their

children with third persons,’ and [**7] between

parents and judges, ‘the parents should be the ones to

choose whether to expose their children to certain

people or ideas.” Jd. at 63 (quoting In re Custody of

Smith, 137 Wn.2d 1, 969 P.2d 21, 31 (Wash. 1998)).

Similar to Derzapf and Mays-Hooper, the trial

court abused its discretion in this case because

Pemberton did not satisfy his burden to be granted

access rights. Pemberton argues that he met the

statutory burden to prove that his granddaughters’

mental and physical health would suffer if he did not

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

have access to them. He presented evidence about

behavior exhibited by the girls and circumstances

influencing their mental and _ physical health

including: (1) the girls displaying anger; (2) one of the

girls experiencing instances of isolated bed wetting

and nightmares; (3) witnesses who have seen

Pemberton with the children testifying that, from their

experiences, denying Pemberton access to _ his

granddaughters would impair the children’s physical

or emotional development; and (4) the significant

impact of loss of maternal family members on the girls,

leaving Pemberton the only remaining maternal

familial connection.

However, that evidence is not enough to

325 S.W.3d 640, *; 2010 Tex LEXIS 853, **;

54 Tex. Sup. J. 198

satisfy Pemberton’s hefty statutory [**8] burden, and

we hold that the trial [*644] court abused its

discretion in issuing a temporary order for access to

and possession of the children. Like the children in

Derzapf, there is nothing in the record here to indicate

anything more substantial than the children’s

understandable sadness resulting from losing a family

member and, according to the Pembertons, missing

their grandparents. 219 S.W.3d. At 330. In fact, the

record shows that Scheller has taken responsible,

precautionary measures to ensure that his daughters

are able to cope with their grief, such as sending his

older daughter to counseling and grief groups. As in

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

Troxel, Scheller appears to be willing to allow

Pemberton to see the girls as long as he comes to

Austin and does not bring Judy. ' Scheller concedes he

has not spoken with Pemberton since this litigation

began, but explains that his attorney advised him

against it.

1Step-grandparents do not have standing to

seek access to their step-grandchildren. See Derzapf,

219 S.W.3d at 331-33.

We hold that the trial abuse its discretion in

granting a temporary order for access to and

possession of the Scheller girls because Pemberton did

not meet the hefty statutory burden [**9]

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

required to prove that he is entitled to grandparent

access rights. If evidence is presented as the

litigation develops that overcomes the _ hefty

presumption, the trial court may reconsider the issue.

However, there was insufficient evidence at this stage

of the litigation for the trial court to issue the

temporary order granting Pemberton aceess to and

possession of his granddaughters.

Next, Scheller challenges the trial court’s order

appointing an expert to serve both as guardian ad

litem to the children and as an expert psychologist to

examine the parties and children to. make

recommendations to the court. He argues that the

trial court’s appointment violates his

325 s.w.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

constitutional right to make child rearing decisions

and his effectively more invasive than the temporary

access orders because it requires Scheller to follow

recommendations made by the expert.

Despite considerable discretion vested in courts

to issue temporary orders “for the safety and welfare

of the child,” a court cannot act to infringe on a party's

constitutional rights. TEX. FAM. CODE § 105.001, see

also Grigsby v. Coker, 904 S.W.2d 619, 621 (Tex. 1995)

(per curiam) (holding that a trial court abused its

discretion by [**10] entering a temporary gag order in

a child custody modification proceeding that violated

the parties’ constitutional rights to free speech and due

process). Parental

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

control and autonomy is a “fundamental liberty

interest.” Derzapf, 219 S.W.3d at 335 (quoting Troxel,

530 U.S. at 65). And as we previously explJained, there

is no reason to inject the State into the family realm

when a parent adequately cares for his children. Id. at

333(citations and quotations omitted). However, the

trial court’s appointment of an evaluative expert does

not infringe on Scheller’s right because such an

appointment is allowed by law; the order entered by

the Court does not interfere with the parental

relationship, but rather seeks to determine the best

interests of the children; an no conflict exists between

appointing the evaluating psychologist as guardian ad

litem.

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

The Family Code specifically provides for this

type of appointment. A suit for access to a child is a

suit affecting the parent-child relationship (SAPCR) in

which the principal consideration is the child’s best

aan ene

interest. See TEX. FAM. CODE § 101.032(a) (defining

a SAPCR); id. [*645] §153.002 (explaining that “[t}]he

best interest of the child [**11] shall always be the

primary consideration of the court in determining the

issues of . . . possession of and access to the child”). In

SAPCR’s a trial court may appoint a psychologist or

psychiatrist to conduct a mental examination of the

parties and children subject of the suit. THX. R. CIV.

P. 204.4(a). Atrial court additionally has discretion to

appoint guardian

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

ad litem in a suit for access to a child if it “finds that

the appointment is necessary to ensure the

determination of the best interests of the child..... i

TEX. FAM. CODE § 107.021(a)(3), (b)(2). Psychologist

are one class of professionals qualified under the

Family Code to serve as guardians ad litem. See Id. §

107.001(5)(b),(5)(C). In using these finite resources at

the trial court’s disposal to determine the best

interests of the children the trial court did not abuse

its discretion.

Also, nothing on the face of the order indicates

that the trial court erred in appointing the same

person to serve as expert psychologist and guardian ad

litem. The role of the psychologist in evaluating

325 S.W.3d 640,*; 2010 Tex LEXIS 853, **;

54 Tex. Sup. J. 198

the children and parties is consistent with the role of

a guardian ad litem because the psychologist gives

the court recommendations [**12] about the

children’s best interests. See TEX. FAM. CODE §

107.002(a), (b), (e) (detailing a guardian ad litem’s

duties, which include reviewing relevant records,

10a

interviewing the parties and the children subject to the

suit to determine the child’s best interest, reporting to

the court, testifying during hearings, and performing

any other relevant tasks the court orders).

Scheller argues that this specific order violates

his constitutional rights. Generally, a trial court

would commit error by requiring a party to

325 S. W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

adhere to expert recommendations in violation of a

party’s constitutional] rights. However, in this case,

the trial court did not abuse its discretion or commit

an error of law by appointing an expert to evaluate the

parties and children, represent the children’s best

interests, and make recommendations to the court as

to whether depriving Pemberton access would

significantly harm the girls’ emotional well-being or

physical health. Scheller argues this order violates his

constitutional rights because it orders his children to

participate in counseling. Trial courts may order

parties to participate in counseling with a mental

health professional if they have a “history conflict

[**13] in resolving an issue of... Access to

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

the child.” TEX. FAM. CODE § 1538.010(a)(1). But it

is clear from the order that the trial court did not

intend to require counseling, but instead intended to

have an expert psychologist assist the court in making

factual determinations regarding whether depriving

Pemberton of access to and possession of his

grandchildren would significantly impair their

physical health or emotional well-being.

Scheller’s argument is unpersuasive given the

lla

content of the temporary order appointing the expert,

whose dual role as a guardian ad litem and evaluate

psychologist facilitates the court’s factual] inquiry into

the children’s best interest and physical and emotional

welfare. The trial court appointed the

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

expert “to evaluate the circumstances surrounding the

relationship between the Petitioner, Respondent, and

the children, and to make recommendations to the

court regarding whether denial of possession and

access to the children by Petitioner would significantly

impair their physical health or emotional! well-being.”

The parties are only ordered to “follow the

recommendations [of the expert] and otherwise

cooperate in her evaluation of the circumstances

surrounding [**14] the basis of th[e] suit, including

but not limited to , making the children available for

any interviews, joint sessions, individual sessions,

[*646] or other contact deemed necessary by [the

expert] in performance of her

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

duties... .” Further, the court will hold a hearing if

party objects to the recommendations relating to

whether an evaluation should be performed in a party

or child. Accordingly, the expert’s role as

demonstrated by the trial court’s order does not

interfere with Scheller’s constitutional rights.

Scheller is entitled to mandamus relief because

the trial court abused its discretion in issuing

temporary orders for grandparent access. Pemberton

did not meet the burden required to divest a parent of

control and autonomy in making parenting decisions.

12a

ne eee ee el

This is irremediable error that warrants mandamus

relief. See Derzapf, 219 S.W.3d at 334-35. However,

the trial court did not err in

325 S.W.3d 640, *; 2010 Tex. LEXIS 853, **;

54 Tex. Sup. J. 198

appointing en expert to serve as the guardian ad litem

to the children and as a psychologist to evaluate the

case and make recommendations to the court

regarding the children’s best interests. Accordingly,

without hearing oral argument, we conditionally grant

mandamus relief and direct the trial court [**15] to

hft the temporary order permitting grandparent

access. See TEX. R. APP. P. 52.8(c), 59.1. We are

confident that the court will comply, and the writ will

issue only if it does not.

OPINION DELIVERED: November 5, 2010

13a

APPENDIX B

IN RE RICHARD SCHELLER

09-1072

SUPREME COURT OF TEXAS

2010 Tex. LEXIS 969

December 10, 2010, Order Pronounced

NOTICE: DECISION WITHOUT PUBLISHED

OPINION

PRIOR HISTORY: [*1]

From Travis County; 3" district (03-09-

00678-CV, SW3d_ , 2009 Tex. Appl. LEXIS

10070, 12-23-09).

In re Scheller, 325 S.W.3d 640, 2010 Tex.

LEXIS 853 (Tex., 2010)

OPINION

MOTION FOR REHEARING OF CAUSE

DENIED.

Motion to Reinstate Stay Denied.

APPENDIX C

NO. D-1-FM-09-004325

IN THE § IN THE 261” JUDICIAL

INTEREST OF §

ALLISON § DISTRICT COURT OF

ELIZABETH §

SCHELLER and §

EMMA MARIE §

SCHELLER , §

Children TRAVIS COUNTY, TEXAS

TEMPORARY ORDERS IN

GRAND PARENT ACCESS SUIT

On October 12, 2009, the Court heard Movant’s

Motion for Temporary Orders, which included a

request for temporary access and the appointment of

an expert to make recommendations to the court.

Appearances

Movant, William R. Pemberton, appeared in

person and through his attorney of record, JoA! cannon

Sheridan, and announced ready for hearing.

Respondent, Richard Scheller, appeared in

person and trough his attorney of record, Bruce

Thrasher, and announced ready for hearing.

Jurisdiction

The Court, after examining the record and the

evidence and argument of counsel, finds that it has

jurisdiction over the subject matter and the parties in

l5a

thiscase. All persons entitled to citation were properly

cited.

Record

The record of testimony was duly reported by

Linda Doyle, the court reporter for the Honorable

Leonard Saenz.

Waiver of De Novo Appeal

The court finds that the parties agreed to waive

de novo appeal of this ruling by written waiver signed

in open court, as well as in open court under oath and

on the record.

Children

The court finds that the following children are

the subject of this suit:

Name: Allison Elizabeth Scheller

Sex: Female

Birth date: May 25, 2001

County of residence: Travis

Name: Emma Marie Scheller

Sex: Female

Birth date: November 20, 2004

County of residence : Travis

Mother

The court finds that the mother of the children

the subject of this suit, Amanda Elizabeth Pemberton

Scheller, died on September 20, 2007.

Findings and Orders

The court finds that Petitioner William

Pemberton has standing to seek grandparent access to

the children the subject of this suit pursuant to TFC §

153.433. Specifically, the court finds that at the time

the suit was filed, at least one biological or adoptive

parent of the child has not had that parent’s parental

rights terminated, and that Petitioner is the parent of

16a

a parent of the child, and that parent of the child is

deceased, as set forth in TFC §§ 153.433(a)(1) and

(3)(c). The court finds that Petitioner is the father of

the children’s mother, Amanda Elizabeth Scheller, who

passed away on or about September 20, 2007.

The court further specifically finds that for

purposes of these temporary orders, Petitioner 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 denial of

possession of or access by Petitioner to the children the

subject of this suit would significantly impair their

physical health or emotional well-being.

Accordingly, the court GRANTS Petitioner’s

request for temporary orders for possession of and

access to the children under the terms and provisions

set forth in detail below. The court further GRANTS

Petitioner’s request for the appointment of an expert

as more fully set forth below. The court finds that

these temporary orders are in the best interest of the

children.

Possession Of and Access To the Children

The court finds that Petitioner should be

awarded possession of and access to the children as

follows:

1. Telephone Access- IT IS ORDERED that

Petitioner shall have telephone access

with the children every Tuesday of each

week at 7:00 p.m. Said telephone

conversations with the children shall not

exceed 10 minutes. Respondent and/or

his agents shall make the children

available at 7:00 p.m. each Tuesday for

the purpose of complying with this

l7a

provision for telephone access. IT IS

FURTHER ORDERED that Petitioner

shall initiate the phone call by calling

Respondent’s cell phone, which number

was provided to Petitioner in open court.

Webcam Access- IT IS ORDERED that

both Petitioner and Respondent shall

purchase and take all actions necessary

to set up webcam capabilities on their

respective computers so that the above-

ordered telephone access may be

effectuated through said medium. IT IS

ORDERED that said webcam capabilities

shall be established by both Petitioner

and Respondent in their respective

households no later that October 25,

2009. ITIS FURTHER ORDERED that

said webcam access to the children, once

established, shall take place every

Tuesday of each week at 7:00 p.m. IT IS

ORDERED that Petitioner shall initiate

the webcam contact with the children,

and IT IS FURTHER ORDERED that

Respondent shall make the children

available at the designated time and

place for said contact. The webcam

access to the children shall not exceed 10

minutes total for both children combined.

Weekend Possession and Access- IT IS

ORDERED that Petitioner is awarded

possession of and access to the children

in even-numbered months, beginning at

4:00 p.m. on the second Friday of each-

numbered month, and ending at 6:00

18a

p.m. the immediately following Sunday.

IT IS FURTHER ORDERED that for the

month of October 2009, Petitioner shall

have possession of the children beginning

at 4:00 p.m. on Friday, October 16, 2009,

and ending at 6:00 p.m. on Sunday,

October 18, 2009.

Holiday/Winter Break Possession- In

addition to the above ordered possession

and access, Petitioner shall have

possession of the children each year

during the holiday/winter break (as

determined by the school calendar of the

schools which the children attend),

beginning at 10:00 a.m. on December

28", and ending at 6:00 p.m. on

December 30". This holiday possession

is intended to be in addition to, and not

in lieu of, any other designated weekend

visitation which may occur in the same

month.

Summer Possession- IT IS ORDERED

that Petitioner shall have possession of

the children for a one week period each

summer, which week shall be Petitioner’s

choice of either of the following:

(A). The second week of July,

beginning at 4:00 p.m. on the

second Friday of July and ending

at 6:00 p.m. on the third Friday of

July; OR

(B). The week during the summer in

which the Crockett First

Methodist Church Vacation Bible

19a

School is held, beginning at 4:00

pm. on the Friday immediately

* receding the first day of vacation

Bible school and ending the

following Friday at 6:00 p.m.,

provided that Petitioner inform

Respondent within 5 days of

learning the dates of the Vacation

Bible School, and in no event shall

the notice be later than May 15"

of each year.

General Terms and Conditions

Except as otherwise explicitly provided, the

terms and conditions of possession of the children are

as follows:

1. Surrender of Children by Respondent

Richard Scheller. Richard Scheller is

ORDERED to surrender the children to

Petitioner William Pemberton at the

beginning of each period pf Petitioner

William Pemberton’s possession at the

residence of Richard Scheller at the time

specified in these Temporary Orders.

2. Return of Children by Petitioner William

Pemberton. Petitioner William

Pemberton is ORDERED to return the

children to Richard Scheller at the end of

each period of Petitioner William

Pemberton’s possession at the residence

of Richard Scheller at the time specified

in these Temporary Orders.

2. Personal _ Effects. Each party is

ORDERED to return with the children

the personal effects that the children

20a

brought at the beginning of the period of

possession.

4. Designation of Competent Adult.

Petitioner William Pemberton and

Respondent Richard Scheller may

designate any competent adult to pick up

and return the children, as applicable.

The parties agree that either Petitioner

or Respondent, or a person designated by

them shall be present when a child is

picked up or returned.

5. Inability To Exercise Possession.

Petitioner shall give notice to the person

in possession of the child on each

occasion that he will be unable to

exercise his right of possession for any

specified period.

6. IT IS ORDERED that when school is in

session, Petitioner shall honor the 9:00

p.m. bedtime requested by Respondent.

However, IT IS FURTHER ORDERED

that, at his discretion, the children’s

bedtime may be extended to 10:00 p.m.

during the summer visitation period.

The court finds that the above ordered

grandparent possession and access is in the best

interest of the children.

Temporary Injunctions

The court finds that the parties are entitled to

a temporary injunction and that the injunction is in

the best interest of the children of the parties. IT IS,

THEREFORE, ORDERED that the parties are

temporarily enjoined from:

2la

Speaking or writing obscene, disparaging, or

demeaning remarks or statements to or about

the other party or any member of the other

party’s family or household, in front of, in the

presence of, in a manner designed to be

observed or overheard by, or otherwise within

the hearing of field-of-vision of the children.

Discussing, commenting on, or referencing in

any way any of the following subjects in front of,

in the presence of, or within the hearing or field-

of-vision of the children: this lawsuit; any legal

theories asserted in this lawsuit ; any court

hearing or proceeding that has occurred in this

lawsuit; any testimony or evidence that has

been offered or admitted at any court hearing or

proceeding in this lawsuit; any relief that is

requested in this lawsuit.

From asking or instructing the children to tell

the other party anything (except common social

pleasantries or mundane or routine inquiries of

social or seasonal nature), from asking or

instructing the children to give or deliver any

writing or document to the other party, and

from otherwise communicating with the other

party through the children.

From airing disputes or grievances during

exchanges of possession of the children.

From disparaging or otherwise making negative

comments about the religion or religious

practices of the other party or their family

member.

Petitioner William Pemberton is temporarily

enjoined from discussing any planned trips or

22a

anticipated vacations or gifts over $200.00 he

wishes to take with the children unless

previously discussed and approved by

Respondent.

7, Petitioner is further temporarily enjoined from

purchasing gifts or clothing items in excess of

$200.00 per visit, without prior approval of

Respondent.

8 Petitioner and his agents are enjoined from

initiating any questions to the children

regarding Respondent’s marriage or the level of

commitment that may exist between

Respondent and his spouse.

IT IS ORDERED that the _ preceding

injunctions and orders shall be and hereby are

effective immediately and shall continue in full force

and effect during the pendency of this suit. IT IS

FURTHER ORDERED that the preceding

injunctions and orders shall be and are binding on

Petitioner William Pemberton and Respondent

Richard Scheller; on their agents, servants, and

employees; and on those persons in active concert or

participation with them who receive actual notice of

this order by personal service or otherwise. The

requirement of a bond is hereby waived.

Communication Between Parties Regarding the

Children

IT IS ORDERED that Petitioner and

Respondent shall communicate directly with one

another regarding all issues concerning the children as

relate to possession, access, and all other issues

addressed herein. IT IS ORDERED that neither party

shall communicate with the other by or through

another person, including the spouses of the parties,

23a

except in cases of emergencies regarding the physical

health of the parties or the children. Said

communication between Petitioner and Respondent

shall be via email, land-line telephone, or mobile

phone.

Appointment of Court-Appointed Expert

The court appoints Dr. Allison Wilcox, Ph.D., as

the court appointed expert in this matter, to serve as

the independent Guardian Ad Litem for the children,

as well as the psychological expert to evaluate the

circumstances surrounding the relationship between

the Petitioner, Respondent, and the children, and to

make recommendations to the court regarding whether

denial of possession of and access to the children by

Petitioner would significantly impair their physical

health or emotional well-being.

IT IS FURTHER ORDERED that the parties

and their agents, servants, and representatives shall

follow the recommendations of Dr. Wilcox and

otherwise cooperate in her evaluation of the

circumstances surrounding the basis of this suit,

including but not hmited to, making the children

available for any interviews, joint sessions, individual

sessions, or other contact deemed necessary by Dr.

Wilcox in performance of her duties hereunder.

IT IS ORDERED that the parties shall work

with Dr. Wilcox regarding setting appropriate

guidelines and boundaries for issues that arise during

periods of possessions and access.

IT IS ORDERED that Dr. Wilcox shall prepare

a written repot, which includes her conclusions and

recommendations, no later than February 15, 2010,

unless otherwise agreed by the parties or requested by

Dr. Wilcox and approved by the court.

24a

Respondent Richard Scheller is ORDERED to

execute all releases necessary for Dr. Wilcox to be able

to contact and communicate with any therapist with

whom either child has, or has had, a professional

relationship. IT IS FURTHER ORDERED that any

therapist with whom the children have, or have had,

a professional relationship, other than Dr. Wilcox or a

person recommended by her, shall not be allowed to

testify as either a fact witness or expert witness in this

proceeding.

IT IS FURTHER ORDERED that the parties

shall follow the advice and recommendations as

specifically relate to whether psychological evaluations

should be performed on one or more of the parties of

the children. However, the court shall allow a brief

hearing on this specific issue should a party object to

said evaluations in the event they are ordered.

All costs associated with the evaluation and

services performed by Dr. Wilcox shall be paid by

Petitioner.

Full Force and Effect

IT IS ORDERED that these orders shall be in

full force and effect until final hearing in this cause, or

further order of the court.

SIGNED on November 12, 2009.

The Honorable Leonard Saenz

JUDGE PRESIDING

APPROVED AND ENTRY REQUESTED:

AUSLEY, ALGERT, ROBERTSON & FLORES , L.L.P.

3307 Northland Drive, Suite 420

Austin, Texas 78731

25a

Telephone: 512-454-8791

Facsimile: 512-454-9091

BY: {Si

JoAl Cannon Sheridan

State Bar No. 00783784

Attorneys for Petitioner, William R. Pemberton

Judicially rendered on 10/12/2009

and signed on 11/12/2009

by Associate Judge Leonard Ray Saenz pursuant to

Section 201.007, Texas Family Code. Notice: All

parties have the right to request a de novo hearing

before a District Judge

APPROVED AS TO FORM ONLY

CECILIA M. WOOD

BY: HSH

Cecilia M. Wood

State Bar No. 21885100

Attorney for Respondent, RICHARD SCHELLER

I, AMALIA RODRIGUEZ-MENDOZA, District Clerk,

Travis County, Texas, do hereby certify that this is

a true and correct copy as same appears of

record in my office. Witness may hand and seal of

office on Dec. 1, 2009

AMALIA RODRIGUEZ-MENDOZA

DISTRICT CLERK

By Deputy: MSH

26a

APPENDIX D

NO. D-1-FM-09-004325

IN THE — § IN THE 26157 JUDICIAL

INTERESTOF §&

ALLISON § DISTRICT COURT OF

ELIZABETH §

SCHELLER and §

EMMA MARIE

SCHELLER , §

Children TRAVIS COUNTY, TEXAS

Original Petition for Grandparent

Possession or Access

1. Discovery Level

Discovery in this case is intended to be

conducted under level 2 of rule 190 of the Texas Rules

of Civil Procedure.

2 Objection to Assignment of Case to Associate

Judge

Petitioner objects to the assignment of this

matter to an associate judge for a trial on the merits or

presiding at a jury trial.

3. Parties

This suit is brought by William R. Pemberton,

who is the maternal] grandfather of the children the

subject of this suit. Petitioner has standing to bring

this suit as more fully detailed below.

The last three numbers of Petitioner’s driver’s

27a

license number are 9224. The last three number’s of

Petitioner’s Social] Security number are 0194.

Respondent is Richard Scheller

4. Jurisdiction

No court has continuing jurisdiction of this suit

or of the children the subject of this suit.

5. Children

The following children are the subject of this

sult:

Name: Allison Elizabeth Scheller

Sex: Female

Birth date: May 25, 2001

County of residence:Travis

Name: Emma Marie Scheller

Sex: Female

Birth date: November 20, 2004

County of residence:Travis

6. Mother

The mother of the children the subject of this

suit is Amanda Elizabeth Pemberton Scheller, who

died on September 20, 2007.

7. Father

The father of the children the subject of this suit

is Richard Scheller. Process should be served at 4424

Chickasaw Court, Austin, Texas 78749.

8. Court-Ordered Relationships

There are no court-ordered conservatorship,

court-ordered guardianships, or other court-ordered

relationships affecting the children the subject of this

suit.

9. Property

No property of consequence is owned or

possessed by the children the subject of this suit.

10. Possession Of Access To Grandchildren

28a

It is in the best interest of the children the

subject of this suit that Petitioner be granted

possession of or access to the children by order of this

court.

At the time this relief is requested, at least one

biological or adoptive parent of the children has not

had that parent’s rights terminated.

Denial of possession or access by Petitioner

would significantly impair the physical or emotional

well-being of the children. Petitioner would show that

until very recently, he has had regular and frequent

possession of and access to the children and a

longtime, loving relationship with them. The

grandparent relationship he has with the children is

strong. Denial of possession of or access to the

children would destroy and bond and result in

impairing the physical health and/or emotional well-

being of the children. Petitioner is the only one

surviving closely-related relative of the children

through their deceased mother.

Petitioner is the father of Amanda Elizabeth

Pemberton Scheller, the deceased mother of the

children.

Amanda Elizabeth Pemberton Scheller Passed

away on September 20, 2007.

Petitioner requests the Court to enter an order

granting Petitioner possession of or access to the

children at the times and under the conditions that are

determined to be in the best interest of the children.

11. Request for Temporary Orders

Petitioner requests the Court, after notice and

hearing, to make temporary orders for the safety and

welfare of the children, including but not limited to the

following:

29a

Ordering temporary possession of or access to

the children by Petitioner.

Ordering the parties to participate in an

alternative dispute resolution process before trial of

this matter.

Petitioner requests the Court to appoint an

independent psychological expert to evaluate the

circumstances surrounding the relationship between

the Petitioner and the children and to make

recommendations to the court regarding whether

denial of possession of and/or access to the children

would significantly impair the physical health or

emotional well-being.

Additionally and/or in the alternative,

Petitioner requests the court to appoint a Guardian Ad

litem for the children to represent the best interests of

the children.

12. Request for Temporary Restraining Order

Making disparaging remarks regarding

Petitioner or the family of Petitioner in the presence or

within the hearing of the children.

13. Request for Temporary Orders and Injunction

Making disparaging remarks _ regarding

Petitioner or the family of Petitioner in the presence or

within the hearing of the children.

14. Request for Permanent Injunction

Petitioner requests the Court, after trial on the

merits, to grant the following permanent injunction:

Making disparaging remarks © regarding

Petitioner or the family of Petitioner in the presence or

within the hearing of the children.

15. Attorney's Fees, Expenses, Costs, and Interest

It was necessary for Petitioner to secure the

services of JoAl Cannon Sheridan, a licensed attorney,

30a

to preserve and protect the children’s rights.

Respondent should be ordered to pay reasonable

attorney’s fees, expenses, and costs through trail and

appeal, and judgment should be rendered in favor of

this attorney and against Respondent and be ordered

paid directly to the attorney for Petitioner, who may

enforce the judgment in the attorney’s own name.

Petitioner requests postjudgment interest as allowed

by law.

16. Travis County Standing Order

A true and correct copy of the “Travis County

Standing Order Regarding Children, Property and

Conduct of the Parties” is attached to this pleading as

Exhibit “A” and made a part of it for all purposes, as

required by the Travis County District Clerk’s File No.

121,012 (Local Rules and General Orders). Petitioner

has not requested specifically that this order be

imposed, but attaches it in compliance with the Travis

County Local Rules and General Orders

17. Prayer

Petitioner prays that citation and notice issues

required by law. Petitioner prays that the Court grant

relief in accordance with the allegations of this

petition, including but not limited to awarding

Petitioner reasonable possession of and access to his

grandchildren, the subject of this suit, and find that

same is in the best interest of the children.

Petitioner prays that the Court immediately

grant a temporary restraining order restraining

respondent, in conformity with the allegations of this

petition, from the acts set forth above, and Petitioner

prays that, after notice and hearing, this temporary

restraining order be made a temporary injunction.

Petitioner prays that, on final hearing, the

3la

Court enter a permanent enjoining Respondent, in

conformity with the allegations of this petition, from

the acts set forth above.

Petitioner prays for attorney’s fees, expenses,

costs, and interest as required above.

Petitioner prays for general relief.

Respectfully submitted,

AUSLEY, ALGERT,

ROBERTSON & FLORES, L.L.P.

3307 Northland Drive, Suite 420

Austin, Texas 78731

Tel: (512) 454-8791

Fax: (512) 454-9091

By: HSI

JoAl Cannon Sheridan

State Bar No. 00783784

Attorney for William R.

Pemberton

NOTICE OF HEARING

Please take notice that a hearing for the

purposes of determining a visitation schedule for

petitioner and the appointment of an independent

psychological expert to make recommendations

regarding visitation with petitioner, or in the

alternative, the appointment of a guardian ad litem to

represent the best interest of the children is set on the

Travis County District Court’s Family Law Docket at

8:30 a.m. on Wednesday, September 16, 2009, at the

Travis County Courthouse, 1000 Guadalupe Street,

Austin, Texas 78701

TRAVIS COUNTY DISTRICT CLERKS

FILE NO. 121,012

(LOCAL RULES AND GENERAL ORDERS)

32a

TRAVIS COUNTY STANDING ORDER

REGARDING CHILDREN, PROPERTY, AND

CONDUCT OF THE PARTIES

No party to this lawsuit has requested this

order. Rather, this order is a standing order of the

Travis County District Courts that applies in every

divorce suit and every suit affecting the parent-child

relationship filed in Travis County. The District

Courts of Travis County have adopted this order

because the parties and their children should be

protected and their property preserved while the

lawsuit is pending before the court. Therefore, it is

ORDERED:

1. NO DISRUPTION OF CHILDREN. Both

parties are ORDERED to refrain from doing the

following acts concerning any children who are

subject of this case:

1.1 Removing the children from the State of

Texas, acting directly or in concert with

others, without the written agreement of

both parties or an order of this Court.

1.2. Disrupting or withdrawing the children

from the school or day-care facility where

the children are presently enrolled,

without the written agreement of both

parents or an order of this Court.

1.3. Hiding or secreting the children from the

other parent or changing the children’s

current place of abode, without the

written agreement of both parents or an

order of this Court.

1.4 Disturbing the peace of the children.

CONDUCT OF THE PARTIES DURING

THE CASE. Both parties are ORDERED to

33a

refrain from doing the following acts:

2.1

2.4

Using vulgar, profane, obscene, or

indecent language, or a coarse or

offensive manner, to communicate with

the other party, whether in person, by

telephone, or in writing.

Threatening the other party in person, by

telephone, or in writing to take unlawful

action against any person.

Placing one or more telephone calls, at an

unreasonable hour, in an offensive or

repetitious manner, without a legitimate

purpose of communication, or

anonymously.

Opening or diverting mail addressed to

the other party.

PRESERVATION OF PROPERTY AND

USE OF FUNDS DURING DIVORCE CASE.

If this is a divorce case, both parties to the

marriage are ORDERED to refrain from doing

the following acts:

3.1

oe)

Destroying, removing, concealing,

encumbering, transferring, or otherwise

harming or reducing the value of the

property of one or both of the parties.

FILED

04 DEC 17 AM8:22

EXHIBIT

“A”

Misrepresenting or refusing to disclose to

the other party or to the court, on proper

request, the existence, amount, or

location of any property of one or both

34a

3.4

3.8

3.9

parties.

Damaging or destroying the tangible

property of one or both of the parties,

including any document that represents

or embodies anything of value.

Tampering with the tangible property of

one or both of the parties, including any

document that represents or embodies

anything of value. And causing pecuniary

loss to the other party.

Selling, transferring, assigning,

mortgaging, encumbering, or in any

other manner alienating any of the

property of either party, whether

personal property or real estate property,

and whether separate or community,

except as specifically authorized by this

order.

Incurring any indebtedness, other than

legal expenses in connection with this

suit, except as specifically authorized by

this order.

Making withdrawals from any checking

or savings account in any financial

institution for any purpose, except as

specifically authorized by this order.

Spending any sum of cash in either

party's possession or subject to either

party’s control for any purpose, except as

specifically authorized by this order.

Withdrawing or borrowing in any

manner for any purpose from any

retirement, profit-sharing, pension,

death, or other employee benefit plan or

35a

3.10

3.11

3.12

2.13

3.14

employee savings plan or from any

individual retirement account or Keogh

account, except as specifically authorized

by this order.

Signing or endorsing the other party’s

name on any negotiable instrument,

check, or draft, such as tax refunds,

insurance payments, and dividends, or

attempting to negotiate any negotiable

instrument payable to the other party

without the personal signature of the

other party.

Taking any action to terminate or limit

credit or charge cards in the name of the

other party.

Entering, operating, or exercising control

over the motor vehicle in the possession

of the other party.

Discontinuing or reducing’ the

withholding for federal income taxes on

wages or salary while this suit is

pending.

Terminating or in any manner affecting

the service of water, electricity, gas,

telephone, cable television, or other

contractual service, such as security, pest

control, landscaping, or yard

maintenance att he other party’s

residence or in any manner attempting to

withdraw any deposits for service in

connection with such service.

4, PERSONAL AND BUSINESS RECORDS IN

DIVORCE CASE. If this is a divorce case, both

parties to the marriage are ORDERED to

36a

refrain from doing the following acts:

4.1 Concealing or destroying any family

records, property records, financial

records, business records, or any records

of income, debts , or other obligations.

4.2 Falsifying any writing or record relating

to the property of either party.

4.3. “Records” include e-mail or other digital

or electronic data, whether stored on a

computer hard drive, diskette or other

electronic storage device.

5. INSURANCE IN DIVORCE CASE. If this is

a divorce case, both parties to the marriage are

ORDERED to refrain from doing the following

acts:

5.1 Withdrawing or borrowing in any

manner all or any part of the cash

surrender value of life insurance policies

of the life of either party, except as

specifically authorized by this order.

5.2 Changing or in any manner altering the

beneficiary designation on any life

insurance on the life of either party or

the parties’ children.

5.3 Canceling, altering, or in any manner

affecting any casualty, automobile, or

health insurance policies insuring the

parties’ property of persons including the

parties’ minor children.

6. SPECIFIC AUTHORIZATIONS _IN

DIVORCE CASE. If this is a divorce case, both

parties to the marriage are specifically

authorized to do the following.

6.1 To engage in acts reasonable and

37a

——

6.2

6.4

necessary to the conduct of that party’s

usual business and occupation.

To make expenditures and incur

indebtedness for reasonable attorney’s

fees and expenses in connection with this

sult.

To make expenditures and incur

indebtedness for reasonable and

necessary living expenses for food,

clothing, shelter, transportation, and

medical care.

To make withdrawals from accounts in

financial institutions only for’ the

purposes authorized by this order.

SERVICE AND APPLICATION OF THIS

ORDER

7.1

1.2

The Petitioner shall attach a copy of this

order to the original petition and to each

copy of the petition. At the time the

petition is filed, if the petitioner has

failed to attach a copy of this order to the

petition and any copy of the petition, the

clerk shall ensure that a copy of this

order is attached to the petition and

every copy of the petition presented.

This order is effective upon the filing of

the original petition and shall remain in

full force and effect as a temporary

restraining order for fourteen days after

the date of the filing of the original

petition. If no party contests this order

by presenting evidence at a hearing on or

before fourteen days after the date of the

filing of the original petition, this order

38a

shall] continue in full force and effect as a

temporary injunction until further order

of the court. This entire order will

terminate and will no longer be effective

once the court signs a final order.

8. EFFECT OF OTHER COURT ORDERS. If

any part of this order is different from any

part of a protective order that has already

been entered or is later entered, the

protective order provisions prevail. Any

part of this order not changed by some later

order remains in full force and effect until the

court signs a final decree.

9. PARTIES ENCOURAGED TO MEDIATE.

The parties are encouraged to settle their

disputes amicably without court intervention.

The parties are encouraged to use alternative

dispute resolution methods, such as mediation,

to resolve the conflicts that may arise this

lawsuit.

THIS TRAVIS COUNTY STANDING ORDER

REGARDING CHILDREN, PROPERTY AND

CONDUCT OF THE PARTIES SHALL BECOME

EFFECTIVE ON JANUARY 1, 2005

MS// MSH

JUDGE SCOTT R. JUDGE W. JEANNE

JENKINS ey MEURER_

53®” District Court 98" District Court

HSH SiH

JUDGE DARLENE JUDGE WILFORD

BYRNE FLOWERS.

126" District court 147” District Court

JUDGE MIKE LYNCH

167" District Court

MSI!

JUDGE SUZANNE

COVINGTON

201°" District Court

JUDGE LORA J.

LIVINGTON

261* District Court

MSH

J UDGE BOB PERKINS

331* District Court

JUDGE MARGARET A.

COOPER

353" District Court

MSH

MS//

JUDGE PAUL

DAVIS

200" District Court

{St

JUDGE JOHN K.

DIETZ

250" District Court

MSI/

JUDGE JON WISSER

299" District Court

HS//

JUDGE PATRICK

KEEL

345" District Court

Si/

JUDGE JULIE

KOCUREK

390" District Court

JUDGE BRENDA KENNEDY

403" District court

APPENDIX E

NO. D-1-FM-09-004325

IN THE INTEREST § IN THE 261°? JUDICIAL

OF §

ALLISON § DISTRICT COURT OF

ELIZABETH §

SCHELLER and §

EMMA MARIE §

SCHELLER , §

Children § TRAVIS COUNTY, TEXAS

RESPONDENT'S FIRST

AMENDED ANSWER

NOW COMES Richard Scheller, Respondent in

this cause, and files and enters Respondent’s First

Amended Answer, and in support would show the

following.

Respondent enters a general denial.

Il.

Respondent specifically denies that denial of

Petitioner’s possession of or access to the children

would significantly impair either child’s physical

health or emotional well-being.

III.

Respondent specifically denies that Petitioner

has been denied possession of or access to the children.

Responded has offered Petitioner to have possession of

and access to the children under certain limitations

that are reasonable and appropriate and in the best

4la

interest of the children.

IV.

Petitioner’s request for a restraining order and

temporary and permanent injunctions are groundless

and frivolous. Respondent requests that Petitioner

pay Respondent’s reasonable legal fees and expenses

incurred to defend the frivolous pleading.

It was necessary for Respondent to secure the

services of Bruce Thrasher, a licensed attorney, to

prepare and defend this suit.

Petitioner, William Pemberton, should be

ordered to pay reasonable attorney’s fees, expenses,

and costs through trial and appeal, and a judgment

should be rendered against Petitioner in favor of

Respondent. Petitioner should also be ordered to pay

Respondent’s for Respondent’s time and energy

expended in defending this cause, and for harassment

and emotional distress. Respondent request

postjudgment interest as allowed by law.

VI.

Respondent prays that all rehef prayed for by

Petitioner be denied, that this cause be dismissed, and

that Respondent be granted all relief requested in this

answer.

Respondent prays for attorney’s fees, expenses,

and costs as requested above.

Respondent prays for general relief.

Respectfully submitted,

HSH

Bruce Thrasher, SBN 1998400

Law Offices of Bruce Thrasher

3 Lakeway Centre Ct., Suite 220

42a

Ph. 512-263-514]

Fax 512-263-5142

CERTIFICATE OF SERVICE

The undersigned certifies that a true and correct

copy of the above and foregoing Respondent's Original

Answer has been served upon all counsel or parties of

record accordance with the Texas Rules of Civil

Procedure on this 8'" day of October, 2009.

MSI

Bruce Thrasher

43a

APPENDIX F

TEXAS COURT OF APPEALS,

THIRD DISTRICT, AT AUSTIN

NO. 03-09-00678-CV |

In re Richard Scheller

ORIGINAL PROCEEDING FROM

TRAVIS COUNTY

MEMORANDUM OPINION

On December 2, 2009, relator Richard Scheller

filed his petition for writ of mandamus and motion for

temporary relief. See Tex. R. App. P. 52.8, 52.10. On

December 10, we issued an order staying the trial

court’s order pending our resolution of Scheller’s

petition, allowing the real party in interest until

December 22 to file a response. Having reviewed the

petition, response, and record, we dissolve our stay and

deny the petition for writ of mandamus.

David Puryear, Justice

Before Chief Justice Jones, Justices Puryear and

44a

Waldrop

Filed : December 23, 2009

APPENDIX G

NO.09-1072

IN THE SUPREME COURT

IN RE RICHARD SCHELLER,

RELATOR

From the Third Court of Appeals

at Austin, Texas

RELATOR’S BRIEF IN SUPPORT OF

PETITION FOR WRIT OF MANDAMUS

CECILIA M. WOOD

ATTORNEY AND COUNSELOR

AT LAW, P. C.

1122 Colorado Street, Suite 2301

Austin, Texas 78701

Telephone No.: 512-708-8783

Facsimile No.: 512-708-8787

State Bar No. 21885100

Attorney for Relator

March 1, 2010

ORAL ARGUMENT REQUESTED

46a

NO. 09-1072

IN THE SUPREME COURT

IN RE RICHARD SCHELLER,

RELATOR

From the Third Court of Appeals

at Austin, Texas

RELATOR’S BRIEF IN SUPPORT OF

PETITION FOR WRIT OF MANDAMUS

TO THE HONORABLE SUPREME COURT OF

TEXAS:

Pursuant to the Texas Rule of Appellate

Procedure 52 and as requested, Richard Scheller,

Relator, files this Brief in Support of Petition for Writ

of Mandamus seeking extraordinary relief, and in

support of this request would show the Court as

follows:

IDENTITY OF PARTIES AND COUNSEL

Relator, Richard Scheller

Appellate Counsel Trial Counsel for Relator

for Relator:

Cecilia M. Wood, Bruce Thrasher

Attorney and Law Offices of

Counselor at Law, P. C. Bruce Thrasher

1122 Colorado Street, 3 Lakeway Centre Ct.

Suite 2301, Ste 220

Austin, Texas 78701 Lakeway, Texas 78734

Telephone No.: Telephone No.:

512-708-8783 512-263-5141

Facsimile No.: Facsimile No.:

512-708-8787 512-263-5142

State Bar No. State Bar No.

21885100 19998400

Respondent, The Honorable Leonard Saenz

The Honorable Leonard Saenz

Associate Judge for the

261“ Judicial District Court

Travis County Courthouse

1000 Guadalupe

Third Floor, Judge’s Office

Austin, Texas 78701

Rea! Party in Interest, William Pemberton

Attorney for Rea] Party in Interest:

JoAl Cannon Sheridan

Ausley, Algert, Robertson & Flores, L. L. P.

3307 Northland Drive, Suite 420

Austin, Texas 78731

Telephone No.: 454-8791

Facsimile No.: 454-9091

State Bar No. 00783784

48a

TABLE OF CONTENTS

(Omitted in Printing)

TABLE OF AUTHORITIES

(Omitted in Printing)

STATEMENT OF THE CASE

The maternal grandfather of the children,

William Pemberton (hereinafter “Pemberton’), the real

party in interest and the petitioner in the trial court,

filed suit against the father of the children, Richard

Scheller (hereinafter “Scheller’), Relator. The suit was

filed on August 13, 2009. Appendix C. Pemberton

sought possession of and access to the children, for

himself, in excess of what the father was willing to

allow to include possession and access for his wife,

Judy Pemberton, the step grandmother mother of the

children, who lacked standing to bring suit on her own

behalf. He also requested the appointment of a

psychologist to serve as the guardian ad litem for the

children. On August 27, 2009, Scheller filed his

Original Answer, which claimed as defense, that

Pemberton could net meet the burden of proof and

requested dismissal of the suit. Appendix D.

On October 12, 2009, the Honorable Leonard

Saenz rendered temporary orders which granted the

relief sought by Pemberton. At the Motion to Enter,

Scheller objected to the entry of the order on

constitutional grounds. ( R.R. November 12, 2009,

page 5, line 19 - page 8, line 5). The Court overruled

the objections and entered the temporary order on

49a

November 12, 2009. Appendix B.

Scheller filed a Petition for Mandamus and a

Motion to Stay Relief in the Third Court of Appeals

sitting in Austin, Texas, in case number 03-09-00678-

CV on December 2, 2009. On December 10, 2009, the

Third Court of Appeals granted the Stay. On

December 23, 2009, the Third Court of Appeals denied

mandamus relief, without elaboration, in a

memorandum opinion. Appendix A. Justice Puryear

wrote the opinion for the panel which also included

Chief Justice Jones and Justice Waldrop.

Relator is requesting this Court to issue a

mandate requiring the Honorable Leonard Saenz

reverse his ruling and dismiss the case.

STATEMENT OF JURISDICTION

This Court has jurisdiction under the Texas

Constitution, article V, §3 and Texas Government

Code, § 22.002.

ISSUES PRESENTED

Issue 1: The trial court abused its discretion in

granting the temporary access to and possession of the

children by Pemberton in direct contradiction to the

holding in In re Derzaph, 219 S.W.3d 327 (Tex. 2007).

Issue 2: The trial court lacked jurisdiction to appoint

an expert witness to evaluate the parties and requiring

Scheller to follow her recommendations and serve asa

guardian ad litem.

Issue 3: Mandamus is the appropriate remedy in this

case.

STATEMENT OF THE FACTS

The real party in interest and the petitioner in

cause number D-1-FM-09-004325, pending in the 261°

Judicial District Court, Travis County, Texas is the

maternal grandfather of the children, the subject of

50a

the suit.

The conflict between the parties arose when

Scheller decided that future visits with the children

include, Pemberton only and not the step-

grandmother; and that they should take place only in

Austin. Rather than honor Scheller’s requests,

Pemberton appeared unexpectedly at Scheller’s house

with his wife and step-daughter and demanded to see

the children. Scheller refused access under those

circumstances. Pemberton responded with this

lawsuit.

A. The Schellers and Pembertons

experienced deep personal loss.

Amanda Elizabeth Scheller, mother of the

children and Pemberton’s daughter, died on September

20, 2007. (R.R. page 15, lines 21-23). During the

following year, Scheller relied on the Pembertons for

some support and assistance with the children. (R.R.

page 8, line 21 - page 27, line 5; page 76, line 21 - page

77, line 12). In October of 2008, Scheller began a

relationship with his current wife. (R.R. page 178,

lines 10-12). In December of 2008, conflict began

between Scheller and primarily Judy Pemberton, the

step-grandmother, when Scheller decided to bring the

children to Crockett on Christmas night rather

than Christmas Eve. (R.R. page 81, line 14- page

82, line8; page 120, lines 12-15, lines 21-22; page

159, lines 4-12). Also, in December of 2008, Ann

Pemberton, the children’s biological maternal

grandmother, with whom the children were very close,

died. (R.R. page 160, lines 7-13).

B. The Pembertons' disregard the

father’s express rules.

As the relationship between Scheller and the

5la

Pembertons continued to deteriorate, Scheller set

three conditions regarding the visits between the

Pembertons and the children: (1) that the Pembertons

not ask the children anything about Mr. and Mrs.

Scheller and their relationship; (2) that the

Pembertons not mention Ann Pemberton, the

children’s grandmother; and (3) that the children be

put to bed by 9:00 p.m. each night.

(R.R. page 117, line 7 - 14; page 160, line 2 - page 162,

line 1). Judy Pemberton testified that after learning

of these conditions: (1) she had not put the children to

bed by 9:00 p.m. and (2) to a discussion with one of the

children regarding their grandmother, Ann

Pemberton, in which she told the child that

“srandmommy was not very nice to granddaddy and

vice versa.” (R.R. page 117, line 16 -18 and page 118,

lines 7 - 16).

ed The Pembertons decide to directly

challenge the father.

Sometime in June, 2009, the Pembertons left a

voice mail message in which, thinking they had

finished the call, they were recorded discussing their

intentions to come to Austin and demand the children.

(R.R. page 163, lne 21 - page 164, line 14).

Subsequently there was a confrontation with Judy

Pemberton, when she returned the children on July 17,

2009, after a week long visit with the girls in

Crockett.. (R.R. page 97 line 15 - page 99, line 14;

page 163, lines 3-10; page 206, lines 5- 16). Pemberton

then received a message from Scheller through his

wife Silvia, that he was welcome to visit the children

in their home, without Judy Pemberton. (R.R. page

54, lines 2-5; page 212, lines 13-14). Walliam

Pemberton did not return the call, but Judy

52a

Pemberton informed the Schellers that he was too

busy to visit in their home. (R.R. page 212, line 25 -

page 213, line 1).

D. The Pembertons refuse to defer the

father’s decisions.

The Pembertons testified that the pattern of

visitation had always been every four to six weeks,

with the longest period being two months. (R.R. page

19, line 22 - page 20, line 5; page 28, lines 10 -12; page

62, lines 23-25). Nevertheless, on July 26, 2009, only

nine days after the end of their last visit, the

Pemberton arrived at the Scheller home,

unannounced, with his wife and step-daughter; and

demanded to see the children. (R.R. page 36, line 21 -

page 37, line 5). When Scheller refused to allow them

in the house, Judy Pemberton pushed by him and

entered the home. (R.R. page 164, line 16 - page 166,

line 18). Both of the Pembertons testified that Judy

Pemberton raised her voice and said a cuss word

where the children may have overheard. (R.R. page 52,

line 20 - page 53, line 4; page 103, lines 3 -21; page

115, line 18 - page 116, line 5; page 164, line 16 - page

166, line 18). Judy Pemberton admitted that the

children might have been able to hear her. (R.R. page

103, lines 3-18). The Schellers and the Pembertons

then agreed to continue the discussion at Schlotzky’s.

(R.R. page 166, lines 19-20). The conflict continued

and culminated with Mrs. Pemberton following

Scheller into the parking lot screaming. (R.R. page

167, line 3 - page 168, line 21).

Even after all of the conflict, Scheller was and is

still willing to allow William Pemberton to have

possession of and access to the children provided he

does so in the Schellers’ home without the presence of

53a

Judy Pemberton. (R.R. page 169, lines 7-19).

Only eighteen (18) days elapsed between the

incident on July 26, 2009 and the filing of this suit. See

Appendix B.

ARGUMENT

As in all Texas cases involving issues of

possession of and access to a child, the primary

consideration must be the best interest of the child.

Tex. Fam. Code §153.002.

This, however, is not a situation where the trial court

was asked to settle disputes between two equally

situated fit parents. In this case, the determination is

not what is in the best interest of the child, but who is

legally entitled to make that determination, the father

or the trial court.

The constitutional question at the heart of this

dispute is whether the state, acting through her

judicial system, has the right to interfere with the

decisions of a fit parent in order to grant the desires of

a non-parent. The answer is, it does not. “The legal

system should generally defer” tothe parent, “obliging

the state to bear a serious burden.” Wiley v. Spratlin,

543 S.W.2d 349 (Tex. 1976). The Supreme Court of the

United States detailed that burden. See Troxel v.

Granville, 530 U.S. 57; 1208S. Ct. 2054, 147 L. Ed. 2d

49 (2000). The same principles of Jaw must control in

every case in which a non-parent chooses to use any

statute to interfere with the fundament right of the

parent to make decisions regarding the care, custody,

and control of his child.

Scheller’s rights are paramount to those of

Pemberton. Legally, Scheller possesses historically

recognized fundamental rights protected by the United

States Constitution:

54a

“_ the interest of parents in the care, custody, and

control of their children is perhaps the oldest of the

fundamental liberty interests recognized by this

Court.” Troxel ,530 U. S. at 65. In contrast, the only

rights afforded to Pemberton are creations of state

legislation. Tex. Fam. Code §153.433. As such, they

are subordinate to and must yield to the preeminent

rights of Scheller. See In re Derzaph, 219 S.W.3d 327

(2007). Although a state possesses the authority to

grant rights beyond those protected by the federal

constitution to its citizens, the Due Process Clause

requires that it do so in a manner that does not

infringe upon the rights of parents to make child

rearing decisions. Troxel, 530 U.S. at 72, 73. This

type of analysis may seem foreign to the judiciary in

Texas, which is charged with focusing first and

foremost on the best interest of the child. Tex. Fam.

Code §153.002. However, in this type of case, the law

has already addressed that primary consideration. It

is presumed that because Scheller is a fit parent, his

decisions are already in the best interest of his

children. See Troxel, 57 U.S. at 68; In re Derzaph, 219

S.W.3d at 333. Therefore, the trial judge satisfies the

charge by following the decisions of the parent, unless

and until he is presented with a preponderance of

evidence that proves either Scheller is not a fit parent

or that his decision will

“significantly impair the child’s physical health or

emotional well-being”. Tex. Fam. Code §153.433 (2).

Scheller’s situation is almost identical to that of

Tommie Granville, Karen Mays-Hooper, and Ricky

Derzaph, with the most significant difference being

that Pemberton actually spent less time with and

personally provided much less care for the children

55a

than did the Granvilles or Connie Johnson for their

grandchildren. See, Troxel v. Granville, 530 U.S. 57;

120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).; In re

Derzaph, 219 S.W.3d 327 (Tex. 2007); In re Karen

Mays-Hooper, 189S.W.3d 777 (Tex. 2006) (per curiam).

As in the Troxel, this case involved a conflict was over

the frequency and manner of visitation, rather than a

total denial of access, as was the case in Derzaph. See

Troxel, 530 U.S. at 61; In re Derzaph, 219 S.W.3d at

330. Although the Troxel court did not provide a list

_of specific facts and circumstances that would cause a

statute as applied to be unconstitutional, it would

seem that the nearly identical facts and circumstances

of this case would logically support the same result.

Before a trial court can determine how it should

act (decide) in a given dispute, it must decide whether

it has the authority to act (decide) in that dispute. If

the trial court has the right to be in the middle of a

family dispute, then the trial court has wide discretion.

However, if the entry way into that dispute is a statute

that is unconstitutional, either facially or as applied to

the facts of the case, then the constitution bars the

trial court from even entering the dispute. The trial

court has no jurisdiction in the instance.

The statutes challenged in this case were

Sections 153.433 of the Texas Family Code, which was

used as the basis for awarding Pemberton access to

and possession of the children, and Sections 153.010

and 105.001 of the Texas Family Code, which were

used as the basis for appointing a psychologist to serve

in the dual role of psychologist and guardian ad litem.

“a statute should be interpreted in a manner that

avoids constitutional infirmities.” Barshop v. Medina

County Underground Water Conservation Dist., 925

56a

————————aa Sanne"

S.W.2 618, 629 (Tex. 1996). Therefore, each of these

statutes must be interpreted, in light of the

constitutional mandates of 7'roxel. In re Pensom, 126

S.W.3d 251 (Tex. App. —- San Antonio 2003, orig.

proceeding); See Troxel v. Granville, 530 U.S. 57; 120

S. Ct. 2054, 147 L. Ed. 2d 49 (2000). Specifically, the

Attorney General of the State of Texas issued an

opinion in regard to Section 153.433 of the Texas

Family Code stating the same. See Op. Tex. Att’y Gen.

No. GA-0260 (2004).

Additionally, because Scheller challenges the

constitutionality of the statutes, the standard of

review is not the typical abuse of discretion review, but

rather a de novo review in order to determine whether

the statutes as applied to the facts of this case are

constitutional. In the Interest of C.P.J. and S.B.J, 129

S.W.3d 573 (Tex. App. — Dallas 2003). Further,

because the statutes as applied to Scheller in this case,

interfere with a fundamental liberty interest, they

should be subjected to a strict scrutiny review. /n re

Pensom, 126 S.W.3d at 254; see also, Troxel, 530 U.S.

at 80). Each must be “narrowly tailored to serve a

compelling government interest.” Id.

In regard to the portion of the temporary order

dealing with possession of and access to the children.

Pemberton did not prove, or even allege that Scheller

was an unfit parent. He failed to prove that Scheller

was unwilling to give him some access. In rendering

the temporary order, the trial court gave no deference

to the wishes of Scheller.

Having failed to meet any of the three elements of

Troxel, Pemberton lacked standing and, therefore, the

trial court lacked to act. The statute was

unconstitutional as applied to Scheller in this case.

Sila

Nevertheless, even if the trial court had been

presented with sufficient evidence regarding the last

two elements, there was insufficient evidence to prove

that Pemberton’s inability to have possession of the

children in the manner that he requested, would

significantly impair the physical health or emotional

well-being of the children. Accordingly, the trial court

abused its discretion in entering the temporary

possession and access order.

One of the strongest indicators that there was

insufficient evidence to enter the temporary order, was

the trial court’s order appointing a psychologist to

serve in the dual role of :

“independent Guardian Ad Litem for the

children, as well as the psycholoyical expert to

evaluate the circumstances surrounding the

relationship between the _ Petitioner,

Respondent, and the children, and to make

recommendations to the court regarding

whether denial of possession and access to the

children by Petitioner would significantly

impair their physical health or emotional well-

being.” Appendix B, page 6.

In itself, the appointment was again an

interference with Scheller’s fundamental rights to

make decisions regarding his children. As_ such,

Pemberton should have been required to prove that

Scheller was unfit parent and that the children would

suffer significant impairment to their physical health

or emotional well-being. He did not and so the trial

court lacked jurisdiction to enter the orders. Scheller’s

request to dismiss the suit should have been granted.

Appendix D.

However, even if the trial court had possessed

58a

jurisdiction to enter the orders, he should have given

deference to Scheller’s preferences in those orders.

Pemberton testified that Scheller was willing to give

him some visitation, but he feared that the visitation

would not occur without a court order. (R.R. page 53,

line 23- page 54, line 5; page 47, lines 14-17). At trial,

however, he did not request the court order the type of

access and possession that Scheller had already

determined was in the best interest of his children.

More importantly, the trial court did not order that

type of visitation. Nor did the Pemberton or the trial

court give any deference to Scheller’s decisions in

regard to the appointment of the psychologist.

The temporary orders entered in this case

interfere with Schelller’s fundamental nght to rear his

children. Itisirrelevant whether it would be better for

the children to visit with Pemberton in Crockett on the

schedule he desires. It is irrelevant whether it would

be better for the children to be evaluated by the expert

witness in order for the expert witness to make

recommendations. The Due Process Clause will not

permit a State, whether acting directly or by

empowering a third party, to infringe on the

fundamental right of parents to make child rearing

decisions simply because a state judge believes a

“better” decision could be made. Troxel v. Granville,

530 U. S. 57, 73; 120 S. Ct. 2054, 147 L. Ed. 2d 49

(2000); In re Derzaph, 219 S.W.3d 327, 334 (Tex. 2007).

Issue 1: The trial court abused its discretion in

granting the temporary access to and possession

of the children, by Pemberton, in direct

contradiction to the holding in In re Derzaph,

291 S.W.3d 327 (Tex. 2007).

The trial court “must accord sufficient weight to

a fit parent’s decisions about the third parties with

whom his or her child should associate.” In re Smith,

262 S.W.3d 463, 468 (Tex. App. — Beaumont 2008) ; see

also In re Pensom, 126 S.W.3d 251, 256 (Tex. App. —

San Antonio 2003, orig. proceeding). “So long as a

parent adequately cares for his or her children (i.e., is

fit) there will normally be no reason for the State to

inject itself into the private realm of the family.” Jn re

Derzaph, 219S.W.3d at 333; citing, In re Mays- Hooper,

189 S.W.3d 777, 778 (Tex. 2006) (per curiam); (quoting

Troxel, 530 U.S. At 68, 120 S. Ct. 2054).

This Court previously followed the Troxel case,

holding that a statute granting a non-parent access is

unconstitutional as applied if : (1) the parent in not

unfit; (2) the decisions of the parent are not given

deference, and (3) the parent is willing to allow some

visitation. In re Mays-Hooper, 189 S.W.3d 777, 778

(Tex. 2006) (per curiam). Although the statute

considered in Jn re Mays- Hooper has been amended, as

noted in that opinion, the constitutional principles

remain the same. See Jn re Mays-Hooper, 189 S.W.3d

777 (Tex. 2006) (per curiam). “The Fourteenth

Amendment’s Due Process Clause has a substantive

component that “provides heightened protection

against government interference with certain

fundamental rights and liberty interests, including

parents fundamental right to make decisions

concerning the care, custody and control of their

children.” Vroxel, 530 U.S. at 57: see also Washington

vu. Glucksberg, 521 U. S. 702, 720 (1997); Stanley v.

Illinois, 405 U.S. 645, 651 (1972).

The amended statute in effect when this case

was filed was the same statute considered in the

Derzaph case. See In re Derzaph, 219S.W.3d 327 (Tex.

60a

2007). The language of the statute is as follows:

“The court shall order reasonable possession of

or access to a grandchild by a grandparent if:

(1) at the time the relief is requested, at least

one biological or adoptive parent of the child has

not had that parent’s parental rights

terminated;

(2) the grandparent requesting possession of or

access to the child overcomes the presumption

that a parent acts in the best interest of the

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

(D) does not have actual or court-ordered

possession of or access to the child.” Tex. Fam. Code

§153.433.

If the statute either facially, or as applied to the

facts of the specific case, does not require the inclusion

of all three elements, then it is unconstitutional. In the

Derzaph case, this Court found that the grandparent

failed to meet at least one of those requirements. Jn re

Derzaph, 219 S.W.3d at 334. The facts in the case at

bar are similar, but less compelling. Pemberton failed

to prove any of the element and to overcome the “high

threshold.” In re Derzaph, 219 S.W.3d at 334. Yet, the

6la

ruling in this case was in direct contradiction to the

holding in Troxel v. Granville, and therefore, Derzaph.

as well . Troxel v. Granville, 530 U. S. 57; 120 S. Ct.

2054, 147 L. Ed. 2d 49 (2000); Jn re Derzaph, Id.

A. There was no allegation or evidence

that Scheller was an unfit parent.

Unless and until a court determines that the

parent is unfit, the trial court lacks authority to

interject itself or authorize a third party to interject

itself into the decision making process. Troxel, 530 U.

S. At 68: In re Mays-Hooper, 189 S.W.3d at 778.“ A

court may not hghtly interfere with child-rearing

decisions” made by a fit parent “simply because a

‘better decision’ may have been made. Jn re Derzaph,

219S.W.3d 327, 334 (Tex. 2007). Even the mere filing

of this lawsuit is an interference which burdens the

fundamental rights of parents. Troxel, 57 U.S. at 58.

The portion of the statute which Pemberton

relied on for standing to file the suit, Section 153.433

(3) (C ) of the Texas Family Code is unconstitutional

as applied to the facts of this case. Tex. Fam. Code

§153.433 (3) (C ). “ Standing is a constitutional

prerequisite to maintaining a lawsuit”. Jn re M.K.S.,

294 S.W.3d 341 (Tex. App. — Dallas 2009); see also Tex.

Assn’ of Bus. v. Tex. Air Control Bd., 852 S.W. 2d 440,

443-44 (Tex. 1993); In re M.P.B., 257 S.W.3d 804, 808

(Tex. App. — Dallas 2008, no pet.). “A party’s standing

to pursue a cause of action 1s reviewed de novo.” In re

Smith, 262 S.W.3d 463 (Tex. App. - Beaumont 2008).

Neither the Derzaph case or the Mays-Hooper

case speak directly to this point, even thought both

cases involved fit parents. In re Derzaph, 219 S.W.3

327 (Tex. 2007); Jn re Mays-Hooper, 189 S.W.3d at 777

(Tex. 2006) (per curiam). However, it does not appear

62a

that the fit parent in either case questioned the

grandparent’s ability to even file the suit , when if the

responding parent was a fit parent and the opinions do

not reference a Motion to Dismiss.

There is nothing inherent in the lst of

grandparents that are entitled to seek access that

would indicate that the responding parent in that

situation would always be unfit. The Legislature could

have chosen to list grandparents who would always

meet the criteria, such as a grandparent who's child

was intentionally murdered by the other parent.

However, given the facts ofa particular case, one could

even envision a scenario where at the time of

litigation, the parent was redeemed and functioning as

a fit parent. Just because one of the parents is

deceased for example, as in this case, it does not mean

automatically mean that the remaining parent is unfit.

Nor does it automatically mean that the petitioning

grandparent is a fit parent or grandparent. Nor does it

automatically mean that the deceased parent would

want the type of visitation the grandparent is

requesting. Scheller testified in this case, that during

her life, his first wife limited visits and did not trust

Pemberton or his wife. (R.R. page 157, lines 8-19, page

158, lines 6-11; page 167, line 24 - page 168. line 4;

page 174, line 24 - page 175, line 12). Interestingly,

the statute does not require the grandparent to be a

“fit” parent or grandparent in order to assert these

legislatively created rights.

The plain language of the statue also does not

specifically mention that the responding parent must

be unfit for the case to proceed. “When possible we

interpret legislative enactments in a manner to avoid

constitutional infirmities. Barshop v. Medina County,

63a

9258.W.2 at 629. In this case, that means interpreting

the statute in accordance with the principles dictated

by the Troxel Court. See, Troxel v. Granville, 530 U.

S. 57; 120 S. Ct. 2054, 147 L. Ed. 2d 49 (2000).

In addition, because the statute is designed to allow

interference with a fundamental liberty, the State

must show a compelling interest that needs to be

protected. In re Pensom, 126 S.W.3d 251, 256 (Tex.

App. — San Antonio 2008, orig. proceeding). In re

Pensom, 126 S.W.3d at 254.

An unfit parent is a parent who does not

adequately provide for the child. Troxel, 530 U.S. At

68; In re Mays-Hooper, 189 S.W.3d at 778. Pemberton

made no such allegations in his pleading. See

Appendix B. Nor was there any evidence presented

that Scheller was an unfit parent.

The Pembertons’ complaints centered around

the fact that Scheller was limiting their access to the

children and their belief that Scheller’s new wife was

trying to “get all of the vestiges of Amanda out of the

children’s life”, including them. (R.R. page 28, lines 24

- 25; page 32, line 20 - page 33, line 11; page 35, lines

16 -19). There was also some evidence that

Pembertons paid for daycare and watched the children

when Scheller needed to do things. (R.R. page 8, line

21 - page 27, line 5). Nevertheless, the fact that the

grandparent provides some care of other necessities for

the child, does not prove that the parent is unfit. Jn re

Derzaph, 219 S.W.3d at 329.

Pemberton also testified that Scheller had a

temporary breakdown after the death of his wife, but

that Scheller had asked friends to care for the children

for a few days when he was hospitalized and had

successfully recovered. (R.R. page 27, line 22 - page

64a

28, line 6). This Court has previously held that

hospitalization for mental health issues does not in

itself render a parent unfit or unable to adequately

care for her child. See Lewelling v. Lewelling, 796

S.W.2d 164 (Tex. 1990). Pemberton did not allege or

prove that Scheller had failed to provide adequate care

for the children at that or any other time.

Having failed to prove Scheller an unfit parent,

Pemberton did not have standing. Therefore, the trial

court did not have jurisdiction to enter any order in

regard to Scheller and his children.

B. There was no evidence that Scheller

intended to completely exclude

Pemberton’s access to the children.

“An order granting grandparent visitation

cannot survive the holding in Troxel if there is no

evidence that the parent intended to completely

exclude the grandparent’s access.” In the Interest of J.

M. T., a Child, 280 S.W.3d 490, 493 (Tex. App. —

Eastland 2009; no pet.); (citing In re Mays- Hooper, 189

S.W.3d at 778). The record in the case at bar is clear:

Scheller intends to provide Pemberton access to the

children. ( R.R. page 169, lines 7-19). Pemberton

himself acknowledged that he is free to visit in Austin

and without the presence of his wife, Judy Pemberton.

(R.R. page 53, line 23 - page 54, line 5). The only

denial of total access was to Judy Pemberton, who is

not the biological grandmother of the children and,

therefore, is not entitled to possession of or access to

the children. In re Derzaph, 261 S.W.3d at 332.

Pemberton refused to visit in the manner that

Scheller had determined to be in the best interest of

the children. Instead, he appeared at the Scheller’s

front door with Judy Pemberton, demanded entry into

65a

Scheller’s home to see the children, and allowed his

wife to cause a scene, when his demands were not met.

(R.R. page 36, line 21 - page 37, line 5; page 52, line

20 - page 53, line 4; page 103, lines 3 -21; page 115,

line 18 - page 116, line 5; page 164, line 16 - page 166,

line 18). Scheller admitted that he was angry and not

ready to return Pemberton’s calls in the week

immediately following the traumatic confrontation at

his home by Pemberton and his wife on July 26, 2009.

(R.R. pagel74, lines 2-8). It is also undisputed that

was also no contact in the two months between the

filing of the lawsuit August 13, 2009 and the hearing

on temporary orders on October 12, 2009. Appendix C

and B. Scheller did attempt to call Pemberton and

Pemberton responded with a threat regarding the cost

of the litigation. (R.R. page 174, lines 8-21).

Pemberton was not denied all visitation with the

children. He simply was unhappy with the terms.

Further, the fact that Scheller has set conditions

for visitation does not mean that he has denied

Pemberton access. In the Troxel case, the mother

made a decision that it was no longer in her children’s

best interest to see the Troxels on a “regular basis” and

decreased the visits to one short visit per month.

Troxel, 57 U.S. at 60-61. Supervising or in some other

manner restricting the actual visits is not a denial of

access. In red. P. C., 261 S.W.3d 334 (Tex. App.— Fort

Worth 2008, no pet.).

Pemberton also testified that he believed he

would not be able to gain access to the children

without a court order. (R.R. page 47, lines 14-17).

After reviewing the evidence presented, even that

presented by Pemberton himself as to the events that

led up to the filing of the lawsuit, it is understandable

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that he might have that fear. When Judy Pemberton

arrived on July 10, 2009, to pick up the girls for a week

long visit, she was angry and verbally berated

Scheller. (R.R. page 163 , lines 3-10; page 203, lines

14-16). On July 17, 2009, while returning the

children, Judy Pemberton trespassed into the house,

called Silvia Scheller a name, and began screaming at

her about a recorder that had belonged to Ann

Pemberton, the children’s biological grandmother.

(R.R. page 207, lines 13-25). On July 26, 2009,

Pemberton testified that he brought his wife to

Scheller’s home, without so much as a telephone call,

and demanded to see the children. (R.R. page 36, line

21 - page 37, line 5). He and others also testified that

Pemberton did nothing to stop his wife as she pushed

her way into the house, raised her voice and cussed.

(R.R. page 52, line 20 - page 53, line 4; page 103, lines

3 -21; page 115, line 18 - page 116, line 5; page 164,

line 16 - page 166, line 18). During a meeting between

the Pembertons and the Schellers at Schlotzky’s later

that day, Judy Pemberton began screaming, followed

Scheller to the parking lot, and held on to the handle

of Scheller’s car door to keep him from leaving. ( R.R.

page 168, lines 8-21). If that level of conflict had

occurred in the context of a divorce, the Pembertons

would likely find themselves punished with a

Protective Order, rather than rewarded with an order

granting everyone of their requests, and then some.

Nevertheless, the grandparents of J. P. C. expressed

the same fear, but were denied relief. Jn re J. P. C.,

261 at 338. Thus, Pemberton’s “fear” that he might be

denied all access was an insufficient reason to award

him temporary possession of and access to the

children.

Without evidence that Scheller intended to deny

all access to Pemberton, the application of the statute

is unconstitutional. Therefore, the trial court did not

have jurisdiction to enter any order in this case.

C. There was no evidence to prove that the

denial of possession of or access to the

children would significantly impair the

children’s physical health or emotional

well-being.

“The trial court has no discretion in applying

the law to the facts of a case.” In re Derzapf, 219

S.W.3d 327, 333 (Tex. 2007). If this Court finds that

the trial court did have jurisdiction to proceed, the

temporary order must still be reversed and the case

dismissed, because the trial court abused its discretion

in finding that Pemberton had “overcome the

presumption “that a parent acts in the best interest of

the parent’s child.” Jd; Troxel, 57 U.S. at 68.

Section 153.433 of the Texas Family Code states

in relevant part,

“(2) The grandparent requesting possession of or

access to the child overcomes the presumption

that a parent acts in the best interest of the

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.”

Tex. Fam. Code §153.433 (2). It is a “high threshold.”

In re Derzaph, 219 S.W.3d at 334. tt moet

certainly requires more than have a certain number of

witnesses repeating or giving assent to the words,

“significant impairment”, like a magic spell, to produce

the desired results. It would also, by necessity imply

more than a mere showing of a change in what the

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grandparent believes has been the previous pattern or

schedule of visitation.

The Legislature chose to use that language that

is identical to or virtually identical to language in

other statutory provisions:

“ (a) Subject to the prohibition in Section

153.004, unless the court finds that the

appointment of the parent or parents would not

be in the best interest of the child because the

appointment would significantly impair the

child’s physical health or emotional

development”. Tex. Fam. Code §153.131(a).

“(b) While a suit for modification is pending, the

court may not render a temporary order that

has the effect of changing the designation of the

person who has the exclusive right to

designate the primary residence of the child

(1) the order is necessary because the

child’s present circumstances would

significantly impair the child’s physical

health or emotional development....”.

Tex. Fam. Code §156.006 (b) (1)

“(a) .... may file and original suit requesting

managing conservatorship if there is no

satisfactory proof to the court that:

(1) the order requested is necessary

because the child’s present circumstances

would significantly impair the child’s

physical health or emotional

development;....”

“(b) .....if there is satisfactory proof to the court

that appointment of a parent as a sole

managing conservator or both parents as joint

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managing conservators would significantly

impair the child’s physical health or emotional

development”. Tex. Fam. Code §102.004 (a) (b).

That language had been previously interpreted

by this Court and various appellate courts to have

certain meanings. In the case of Lewelling uv.

Lewelling, this Honorable Court held, “While trial

courts should be afforded broad discretion in deciding

family law question, the legislature has explicitly

limited the exercise of that discretion when a

nonparent seeks appointment as a managing

conservator.” Lewelling v. Lewelling, 796 S.W.2d 164

(Tex. 1990) (discussing Tex. Family Code § 14.01 (b)

(Vernon Supp.1990) re-codified as Tex. Family Code

153.131 (a)). In order to prove significant impairment

to the child, “the nonparent must offer evidence of

specific actions or omission of the parent.” Lewelling

v. Lewelling, 796 S.W.2d at 167. “The nonparent must

usually present evidence affirmatively showing

conduct of the parent which will have a detrimental

effect upon the child, such as physical abuse, severe

neglect, abandonment, drug or alcohol abuse or very

immoral behavior on the part of the parent. May v.

May, 829 S.W.2d 373, 377-78 (Tex. App. — Corpus

Christi 1992, writ denied); see also Taylor v. Taylor,

254 S.W.3d527, 536-37 (Tex. App. — Houston [1 Dist.]

2008, no pet.), (parent was physically violent, favored

girlfriend’s children, and refused to seek help for the

child after learning the child was possibly sexually

abused; the children were raised primarily by the

grandparents); In re C.R.T, 61 S.W.3d 62, 68 (Tex.

App. — Amarillo, 2001, pet. denied). In re R.D.U., 51

S.W.3d 314, 231 (Tex. App. — Houston [1* Dist.] 2001,

pet. denied), (parent had a drug problem, failed to

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support her children, and was irresponsible); /n re

R.DLY., 51 S.W.3d 314, 321 (Tex. App. — Houston [1*

Dist.] 2001, pet. denied); (parent physically abused the

child); Thomas v. Thomas, 852 S.W.2d 31, 36 (Tex.

App. — Waco 1993, no writ), (father left the child with

the mother, whom he knew to have an unstable

lifestyle, had no contact with the child for over three

years, wholly abandoning her, and failed to provide

any support during that same period of time); Fay v.

Burns, 832 S.W.2d 431, 433-434 (Tex. App. — Waco

1992, no writ); (parent’s lifestyle was unstable,

disorganized, and chaotic). O’Connor’s Texas

Family Law Handbook 419-20 (2010). These fact

scenarios are similar to those found in successful

termination cases.

Further, the type of evidence that might

ordinarily support a finding of best interest is often not

sufficient to support a finding of significant

impairment. In the Lewelling case, this Court held

that evidence of the mother’s unemployment, crowded

living conditions, past mental health issues, and

passively allowing her self to be the victim of domestic

violence was not sufficient to show that the children

would be significantly impaired. /d. Based on this

ruling several appellate courts have found that

circumstances that might ordinarily support a finding

of best interest were insufficient to support a finding

of significant impairment. /n re S.W.H, 72 S.W.3d 772

(Tex. App. — Fort Worth 2002, no pet.), (mother’s

previous, severe drug addiction, which lead to her

incarceration, causing her to be absent from the child

for a period of time, was insufficient); Jn re W.G.W.,

812 S.W.2d 409, 419-415 (Tex. App. - Houston [1*

Dist.] 1991, no writ), (mother moved several times,

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entertained men in the home while the child was

present, brandished a fire poker in front of the child,

tried to stab the nonparent in front of the child, with

whom she and the child had lived for a period of time,

and the child referred to the nonparent as “Daddy’);

O’Connor’s Texas Family Law Handbook 420

(2010).

In the De La Pena case, the E!} Paso court found

that the aunt had failed to prove significant

impairment, despite the evidence that :

“* the child had resided with the nonparents

since the day after her birth and had visited with the

father only twice since her birth;

* the child experienced serious sleep disorders

and regressive behavior following the two visits with

her father;

* the child had bonded with the nonparents

other daughter, who she considered her little sister;

*expert witnesses testified that removing the

child from the nonparents’ home would be

“devastating,” “very traumatic,” and likened it to

“osychological amputation”;

*the father had scheduled a visit and failed to

show up;

* it was the paternal grandmother and not the

father who telephoned the nonparents, bought,

wrapped, and addressed the cards and presents sent to

the child; and

* the father failed to return the telephone calls

of the nonparents.” In re De La Pena, 999 S.W.2d 521,

528 (Tex. App. - El Paso 1999, no pet.). He also spent

the night with the child at the home of his step-father,

who was a known child molester. In re De La Pena,

999 S.W.2d at 533.

72a

If these types of allegations did not amount to a

significant impairment to the children involved, then

clearly an inability to attend a specific church or eat

Thomson Bar-B-Que will not meet the criteria. ( R.R.

p. 152, lines 1-14; page 80, lines 17-18; page 140, lines

1-3). Tothe contrary, all of the evidence presented by

Pemberton on this issue was of the same nature that

this and other courts have previously held to be

insufficient.

Only the Pembertons and their friends testified,

in response to questions that tracked the statute, that

the denial of access would significantly impair the

physical or emotional well-being of the children. In

the case of J. P. C., the Fort Worth Court of Appeals

held that the probative evidence necessary to prevail

would require more than the “bare, unsupported

allegations”. In re J. P. C., 261 S.W.3d at 238. Even

the expert testimony of the psychologist, in Derzaph,

that it might be harmful to one of the children and

that it was in the best interest of all of the children to

have some contact with the grandparents was

insufficient to award the grandmother access over the

father’s objection. Jn re Derzaph, 219 S.W.3d at 334.

Clearly the unqualified conclusions of Pemberton’s

witnesses were not sufficient.

Pemberton also claimed that the restrictions

and limitations placed on the contact between himself

and the children, would cause the children harm.

When asked what he observed that led him to that

conclusion, he stated that the children seemed more

distant and hesitant in the presence of their step-

mother. (R.R. page 41, line 17 - page 42, line 11). His

testimony was almost identical to that of the

grandmother in the J. P. C. case. In re J. P. C., 261

Ii3a

_ _— , LL cemen.

S.W.3d 334 (Tex. App. — Forth Worth 2009, no pet.).

In that case, the grandparents testified that the

mother’s supervision of their visits, caused the child

discomfort, that he acted differently, and appeared

inhibited, pensive, and superficial when the mother

was present. Jd at 337-338. Although the Court did

not state what type of behavior was would be evidence

of significant impairment, it is reasonable to assume

that it would require something more substantial. Id.

In the Derzaph case, the grandmother presented

evidence regarding the anticipated effect on the

children, if they were denied access to her husband

and other family members. This Court found that the

biological grandmother had the burden tw prove “that

denying the children access to her in particular - not

Connie and Randy jointly or the Johnson family as a

whole - would significantly impair the children’s

physica] health well-being to suffer.” In re Derzaph,

219 S.W.3d at 333. A good deal of the testimony in

this case was centered around the time the children

spent with the step-grandmother or involved in

activities, rather than with Pemberton himself. (R.R.

page 21, lines 14 -20; page 22, lines 4-7, 16-19; page

44, line 6 - page 45, line 1; page 57, line 10 - page 58,

line 24; page 68, line 21 - page 71, line 10; page 79,

line 3- page 80, line 18; page 88, lines 14-16; page 88,

line 24 - page 89, line 7; page 112, lines 8-11, line 17 -

page 113, line 15; page 126, lines 3-13; page 132, lines

11 - 24; page 140, lines 1-3; page 149, lines 9-15; ).

There was also testimony that Pemberton himself did

not take vacation in order to spend time with the girls.

(R.R. page 124, line 123- page 125, line 1). He met

them for lunch and came home for dinner. (R.R. page

22, lines 20 -24). When asked whether he had takena

74a

five day hunting trip during one of the children’s visits

to Crockett, Judy Pemberton was unable to recall.

(Pagel20, line 24 - 121, line 2). On at least one

occasion Pemberton was out of town, while Scheller

and the children visited only with the step-

grandmother. (R.R. page 99, line 25 - page 100, line 3).

The testimony of Pemberton’s witnesses focused on the

relationships and activities they would miss, if they

were unable to visit in Crockett. (R.R. page 22, lines

11-24, page 44, line 6 - page 45, line 1; page 80, lines

4- 18; page 113, lines 1-15; page 136, line 18- page 137,

line 3; page 151, line 15 - page 152, line 14).

Pemberton, failed in his burden to overcome the

statutory presumption that denying the access to him

in particular, would significantly impair the children’s

physical health or emotional well-being.

In the case of Whitwell v. Whitwell, the

grandparents failed to prove that the disabled child

would be significantly impaired if the mother was

allowed to take him from the United States, where

they lived, to live with her in Australia. Whitwell v.

Whitwell, 878 S.W.2d 221 (Tex. App. — El Paso 1994,

no writ). Obviously, requiring Pemberton to come to

Austin, Texas from Crockett, Texas, will not rise to the

level of significant impairment.

Pemberton also speculated that the children

might be why they had not seen him for a while was

not sufficient to over the presumption. (R.R. page 36,

lines 15 -20). Questions, “are not evidence of

significant impairment. Jn re J. P. C., 261 S.W.3d at

339.

Significantly, no one testified that to any actual

harm that had occurred to the children as a result of

the change in visitation schedule, but only to

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speculations as to what might occur in the future.

Pemberton will argue that he introduced some

evidence of anger and emotional suffering of the

children. None of it, however, is relevant to the

statutory burden. He presented evidence that one of

the children was angry because of the death of her

mother, her uncle, and her biological maternal

grandmother. (R. R. page 17 - page 73, line 9). The

sudden heart attack that killed the child’s mother was

not the result of an act or an omission by Scheller.

( R.R. page 16, lines 1-13). Nor was any evidence

produced that he was in anyway responsible for the

death of his mother-in-law or the suicide of his

brother-in-law, Pemberton’s son. ( R.R. page 18, lines

10-16). In addition, Pemberton’s wife testified that

Scheller had obtained counseling for the child from the

school counselor and had done well. (R. R.. page 130,

lines 12-18). Pemberton also presented evidence

regarding a bed-wetting incident that occurred around

November of 2008, at approximately the same time

Scheller’s current wife moved into the home with him

and the children. (R.R. page 41, lines 6- 13; page71,

line 11 -15). Again, there was no evidence that

Scheller caused this behavior. More importantly there

was no correlation between the behavior and the

changes made to Pemberton’s access to the children,

which were instituted until July of 2009, nearly seven

months after the event.

The link between the parent’s conduct and

harm to the child may not be based on evidence

which merely raises a surmise or speculation of

possible harm. Brook v. Brook, 881 S.W.2d 297,

298 (Tex. 1994). “Close calls” go to the parent in

an evidentiary review”. Ray v. Burns, 832 S.W.2d

76a

431, 433 (Tex. App. — Waco 1992, no writ).

Having no evidence as to how specifically the

denial of access by Pemberton would significantly

impair the physical or emotional well being of the

children, the trial court abused its discretion in

awarding Pemberton access to the children

contrary to the wishes of Scheller. “A trial court

abuses its discretion when it grants access to a

grandparent who has not met this standard.” /n re

Derzaph, 219 S.W.3d at 333.

D. The trial court abused its discretion

by failing to give deference toScheller’s

wishes in its orders.

Even, if the trial court had jurisdiction to

enter athe temporary orders, it was still an abuse

of discretion to do so without deference to

Scheller’s preferences. In re Mays-Hooper, 189

S.W.3d at 778. -

The trial court was obliged to defer to the

decisions of Scheller, but failed todo so. As applied to

the facts in this case, the application of Section

153.433 of the Texas Family Code as the basis for the

award to Pemberton. of possession and access to the

children was unconstitutional. Tex. Fam. Code

§153.433

Issue 2: The trial court abused its

discretion in appointing an expert to evaluate

the parties and requiring Scheller to follow her

recommendations.

Since the trial court did not have jurisdiction to

proceed with the case, it did not have jurisdiction to

exercise its discretion in regard to either 153.010 or

105.001. Tex. Fam. Code §§ 153.010 and 105.001.

T7a

Again, the analysis must be the same based on the

holdings and reasoning in Troxel. See Troxel v.

Granville, 530 U. S. 57 (2000). The particular issue

disputed in Troxel was that of grandparent access. Id.

The Supreme Court held that the “liberty interest in

this case - the interest of parents in the care, custody,

and control of their children - is perhaps the oldest of

the fundamental liberty interest recognized by this

Court.” Troxel 530 U. S. At 65; citing Meyer v.

Nebraska, 262 U.S. 390, 399, 401 (1923) (includes the

right of parents to “establish a home and bring up

children” and “to control the education of their own.””);

Pierce v. Society of Sisters, 268 U.S. 510, 534-535

(1925) (“liberty of parents and guardians” includes the

right “to direct the upbringing and education of

children under their control.”.... “ and to recognized

and prepare him for additional obligations.”’); Prince v.

Massachusetts, 321 U.S. 158 (1944) (“right of parents

to direct the upbringing of their children).

Certainly, the appointment of the psychologist

in this case was, if possible, even more invasive than

the actual possession order. Under the guise of a

guardian ad litem, not only was her purpose to gather

evidence:

“The Court appoints Dr. Allison Wilcox, Ph. D.,

as the court appointed expert in this matter, to

serve as the independent Guardian Ad Litem

for the children, as well as the psychological

expert to evaluate the circumstances

surrounding the relationship between the

Petitioner, Respondent, and the children, and to

make recommendations to the court regarding

whether denial of possession and access to the

children by Petitioner would significantly

78a

impair their physical health or emotional well-

being.” Appendix B. page 6,

but she was also given authority to make decisions

in place of Scheller:

“IT IS FURTHER ORDERED that the parties

anc their agents, servants and representatives

shall follow the recommendations of Dr.

Wilcox........

IT IS ORDERED that the parties shall work

with Dr. Wilcox regarding setting appropriate

guidelines and boundaries for issues that arise

during the periods of possession and access.”

Appendix B. page 6.

Pemberton claimed in his response that the

appointment of the psychologist was justified pursuant

to Section 153.010 of the Texas Family Code. Tex.

Fam. Code §153.010.

“(a) if the court finds at the time of a hearing

that the parties have a history of conflict in

resolving an issue of conservatorship or

possession of or access to the child, the court

may order a party to:

(1) participate in counseling with a mental

health professional who: ...”.

Tex. Fam. Code §153.010.

Although the psychologist was not directly

ordered to counsel with the parties, given the broad

authority delegated to her by the trial court: “... shall

follow all recommendations of Dr. Wilcox,” it is feasible

that Scheller might be required to undergo counseling

with Dr. Wilcox. Appendix B. page 6.

Pemberton additionally claims that Section

105.001 of the Texas Family Code supports the

appointment of the psychologist. Tex. Fam. Code

79a

§105.001. In relevant part, that statute reads:

(a) The Court may make a temporary order,

including the modification of a prior temporary

order, for the safety and welfare of the child...”

Tex. Fam. Code §105.001.

“While [Fam. Code] §11.11 does give trial courts

broad powers in family cases, it does not authorize

them to invade constitutional guarantees. Grigsby v.

Coker, 904 S.W.2d 619, 621 (Tex. 1995); Tex. Fam.

Code §11.11 currently §105.001. Accordingly, the

process of review would be the same as in the

preceding issue.

Pemberton did not prove or even allege that

Scheller was an unfit parent. Appendix C. Having

failed to do so, the trial court had no jurisdiction to

enter any order on the issue. Ifthe trial court did have

jurisdiction to enter the order, then analysis continues

in the same fashion.

Scheller himself specifically testified that he did

not believe that there was any reason to appoint an

expert. ( R.R. page 192, lines 11-12). Even if, as

Pemberton argues, Scheller had initially agreed to the

appointment, that would not forever waive his right to

object. It was clear that during the trial, he did not

really understand what he was being asked to

determine. (R.R. page 191, line 19 - page 192, line

24). As a fit parent, he not only has the right, but the

obligation to correct a decision he later learns could

negatively affect his children.

Pemberton again had the burden to overcome

the presumption that a fit parent acts in the best

interest of his or child. Jn re Derzapf, 219 S.W.3d at

333; Troxel, 57 U.S. at 68. Section 105.001,

specifically allows for the entry of an order for

80a

temporary conservatorship of the child, even in a

modification. Tex. Fam. Code §105.001. Yet, the

broad language in Section 105.001 of the Texas Family

Code must be interpreted in the context of the specific

statutory limitations placed on the trial judge’s

authority in Section 156.006 (b) to temporarily change

the designation of the person who has the right to

designate the primary residence of the child. Tex.

Fam. Code §§ 105.001 and 156.006 (b). In the same

manner, that same broad language must be

interpreted to conform with the constitutional

principles regarding the state’s interference with

Scheller’s fundamental liberty interest in the care,

custody, and control of his children. See Troxel, 57

U.S. at 65.

Further, there was no evidence that this

appointment was necessary to protect the safety and

welfare of either child, as required in the plain

language of the statute. Tex. Fam. Code §105.001. In

fact, the trial judge stated the purpose of the

appointment was to evaluate the circumstances

surrounding the relationship between Pemberton and

the children and Pemberton and Scheller; and to

make recommendations to the Court as to whether the

denial of access is warranted, would significantly

impair their physical health and emotional well-being.

(R.R. page 233, lines 10 -17); Appendix B, page 6.

Scheller was already providing counseling for

the older child. The younger child was not yet five at

the time of the hearing. (R. R. page 14, line 24). Judy

Pemberton told the judge, that the older child had

received counseling for the loss of her mother from a

school counselor, who did “very well.” (R.R. page 130,

lines 12-18). Scheller testified that they were still

8la

using the school counselor at the time of the hearing.

(R. R. page 194, lines 18-22). He described how well

the children were doing. ( R. R. page 195, lines 6-15).

He also told the judge that the older child was just

beginning therapy and his reasoning behind that

decision. (R.R. page 197, line 14 - 200, line 13). The

trial judge had no authority to substitute his judgment

for that of Scheller’s. See, In re Derzaph, 219 S.W.3d

327 ( Tex. 2007). Nevertheless, the trial court ignored

Scheller’s decision on the matter and appointed an

expert witness, hand-picked by Pemberton, based on

the “testimony” of Pemberton’s attorney, to meet

Pemberton’s request. ( R.R. page 24, lines 7-23).

Appendix B, page 6. Once again, the decisions of

Scheller, a fit parent, were given no deference.

Having failed to prove Scheller unfit, the judgment of

the court, the grandparent, or even a psychologist,

cannot be substituted for that of the parent. Jn re

Derzaph, 219 S.W.3d 327 ( Tex. 2007); In re Karen

Mays-Hooper, 189 S.W.3d 777 (Tex. 2006). Pemberton

filed this suit without having sufficient evidence to

meet his burden of proof. He should not now be

allowed to use the suit to launch an fishing expedition

in the hopes of obtaining the evidence he needs to

prevail on the merits.

Issue 3: Mandamus is the appropriate remedy in

this case.

A party is entitled to mandamus relief if a trial

court violates a legal duty or abuses its discretion, and

the party has no adequate remedy by appeal. Walker

v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992).

Pemberton’s failure to meet the constitutional and

statutory burdens required to interfere with Scheller’s

fundamental right to make child rearing decisions

82a

deprived the trial judge of jurisdiction to issue any

order in this case.

This Court has previously held the remedy by

appeal to be inadequate in a case where the relator

challenged subject matter jurisdiction to enter a

temporary order, because temporary orders are not

subject to appeal. Little v. Daggett, 858 S.W.2d 368,

369 (Tex. 1993); See also, Dancy v. Daggett, 815

S.W.2d 548 (Tex. 1991). Specifically, and more

recently, this Honorable Court granted mandamus

relief to require a trial court to vacate its temporary

orders granting grandparent access. In re Derzapf, 219

S.W.3d 327 (Tex. 2007); In re Mays-Hooper, 189

S.W.3d 777. In both instances, this Court found that

the temporary orders allowing grandparent access,

divested a fit parent of possession of his child and,

therefore, violates the holding of the United State

Supreme Court in Troxel v. Granville. Troxel, 530 U.

S. 57 (2000); In re Derzapf, 219 S.W.3d at 334; See In

re Mays-Hooper, 189 S.W.3d 777.

Even more offensive is the appointment of the

expert witness. By virtue of the temporary order,

Scheller’s privacy is at the mercy of the psychologist,

upon penalty of contempt. Further, each day that the

order remains in effect, the psychologist has the

authority to not only interfere with Scheller’s right to

make decisions for his children, but to totally usurp

that power. Appendix B. Scheller will suffer

irreparable harm, if forced to continue living under the

order.

As in Derzaph, the temporary orders in this case

were entered” in violation of the Troxel’s cardinal

principle and without overcoming the statutory

presumption that the father is acting in his children’s

83a

best interest”. In re Derzaph, 291 S.W.3d at 335. For

the same reasons the effects of this temporary order

are “irremediable and mandamus _ relief is

appropriate.” Jd.

Failure to grant mandamus relief will subject

Scheller and his family to suffer the unjust

interference by the court and Pemberton for months

and even years. In the meantime, other nonparents

will be emboldened to file frivolous lawsuits, with little

or no competent evidence.

CONCLUSION

This case is about control. The children’s

mother had been very careful about the Pembertons’

access to the children and the Pembertons were afraid

that it would happen again. (R.R. lines 5-12). Each of

his requests were designed to meet his needs and not

those of the children. Pemberton was not satisfied

with the type of access that Pemberton was willing to

allow, and so based on nothing more than the untimely

and tragic death of his daughter, he enlisted the

authority of the tral court to force Scheller into

submitting to his demands, she herself may not have

authorized. (R.R. lines 5-12).

Pemberton testified that he was unable to take

off a month or two just to spend time with his

granddaughters. ( R.R. page 22, lines 16-19). When

the children visit in Crockett, they actually spend their

time with the step-grandmother, until he gets home

from work at 6:00 p.m., depending on his schedule,

or during lunch. (R.R. page 22, lines 20 -24; page

124, line 23- page 125, line 1). He was willing to

miss work to come to Austin in order litigate and

to meet with the expert he was requesting be

appointed. ( R.R. page 45, lines 11-14). Yet, he

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was unwilling to come to Austin in order to see his

grandchildren. He asked for and received a

possession and access schedule that accommodated

his needs.

Pemberton failed to prove that the children

would suffer any significant impairment if he were

required to honor the decisions of Scheller in regard to

when and how he would be allowed to visit the

children. In the hopes of curing this defect before a

final hearing on the merits, he asked for and received

an expert tnal witness, clothed in the dual role of

guardian ad litem.

The United States Supreme Court explained the

historical recognition of importance of the fundamental]

right of parents to make decisions concerning the care,

custody, and control of their children and the

applicability of that rule of law to the states through

the Due Process Clause of the Fourteenth Amendment.

Troxel, 57 U.S. at 65, 66. Texas has followed those

precedents, most recently affirming the principles

detailed in Troxel in two cases nearly identical to this

case. See In re Derzaph, 219 S.W.3d 327 (2007); In re

Mays-Hooper, 189 S.W.3d 777 (2006). As a fit parent,

Scheller was entitled to protection by the court from

this type of interference. Instead the trial court aided

and abetted the interference by rendering temporary

orders without any reference or compliance with well-

settled, guiding principles of law.

In pursuing his own agenda, Pemberton ignores

the harm caused to the children by the lawsuit itself.

Litigation burdens a parent’s right. 7roxel, 530 U.S. at

58. Logically, if the parent is impeded in performing

his parental roles by burdens imposed by nonparents,

the unity and structure of the institution designed to

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care for children, the family, is burdened. Court

rulings are the climax of a long and arduous process.

During that process the parent, and consequently the

entire family unit remains under scrutiny and attack,

by virtue of the restrictions imposed by temporary

orders and the demands of litigation. Such burden can

only detract from the parent’s ultimate goal of

providing the security and nurturing that children

deserve to receive from their families.

Some of the effects are tangible and obvious.

Pemberton’s threatening predictions that. it was going

to cost both himself and Scheller “ a lot of money in

lawyer’s fees” was accurate. Money consumed by

litigation is no longer available to benefit the children.

Pemberton knew that Scheller was already stressed

out at work, the source of provision for the children. (

R.R. page 38, lines 18-20). Without concern as to how

it would affectfor the affect on the children, Pemberton

chose to add to that stress by filing a lawsuit, less than

two weeks after his unreasonable demands were not

met. Appendix C.

More devastating are the intangible effects.

Traditionally, the law has favored the parent as the

ultimate authority for the child. Parents provide

structure and set boundaries, which give children a

sense of security. If that authority is subject to

challenge by a grandparent or any other nonparent in

the absence of acts or omissions on the part of the

parent that expose the child to harm, then the child’s

faith in the authority of the parent is jeopardized and

all authority becomes subject to challenge. The state

most certainly has a compelling interest in a citizenry

that recognizes the exercise of appropriate authority.

An additional danger in allowing this type of

suit to linger without strict adherence to the rule of

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law, is the chilling effect that it will have on familial

relationships. Grandparents, especially, are often are

more financially capable of maintaining a lawsuit than

parents. If they are allowed to bully parents into

submitting to their demands by draining the financial

and emotional resources of that parent through

litigation, without meeting the necessary burdens of

proof, parents are going to be afraid to let their

children have any contact with the grandparents or

anyone else the Legislature might one decide

deserves standing.

The holding in Troxel can be paraphrased to say

that nonparents and the state should not be second

guessing a fit parent. See Troxel, 530 U.S. 57 (2000).

That is exactly what has happened in this case. As in

the Mays-Hooper case, there is no reason to remand

this case for further proceedings on these issues

because “the facts are virtually the same’, as those in

Troxel. Troxel, U.S. 57 at 58; In re Karen Mays-

Hooper, 189 S.W.3d at 778. In Derzaph, this Court

held that mandamus review allowed “appellate courts

to give needed and helpful direction to the law... and

spare private parties and the public the time and

money utterly wasted enduring eventual reversal of

improperly conducted proceedings.” Jn re Derzaph,

219S.W.3d at 335. That relief is necessary in this

case to protect Scheller’s fundamental parental

rights, the children’s security and the public policy

of this state.

PRAYER

WHEREFORE, Relator prays this Court grant

this writ of mandamus. Relator further specifically

requests this Court: (1) reverse the judgment of the

trial court; (2) render a judgment denying Pemberton’s

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petition for possession of and access to the children;

and (3) render a judgment denying Pemberton’s

petition for the appointment of an expert and guardian

ad litem.

Respectfully submitted,

MSI

CECILIA M. WOOD

ATTORNEY AND COUNSELOR

AT LAW, P. C.

1122 Colorado Street,

Suite 2301

Austin, Texas 78701

Telephone No.: 512-708-8783

Facsimile No.: 512-708-8993

State Bar No. 21885100

Attorney for Relator

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true

and correct copy of the foregoing document was

delivered to the Honorable Leonard Saenz,

Associate Judge for the 261° Judicial District Court,

Travis County Courthouse, 1000 Guadalupe, Third

Floor, Judge’s Office, Austin, Texas 78701 by hand-

delivery and to Mrs. JoAl Cannon Sheridan, Ausley,

Algert, Robertson & Flores, L. L. P., 3307 Northland

Drive, Suite 420, Austin, Texas 78731, by U. S.

certified mail, return receipt requested, number

7008 1300 0000 2946 7544 on the on the 1" day of

March, 2010, in accordance with the Texas Rules of

Appellate Procedure.

CECILIA M. WOOD

Attorney for Relator

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.