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Family Law Click here for the full text of this decision FACTS: This is an appeal from the trial court’s order modifying an existing agreed visitation order between Marshall M. Jackson and his former parents-in-law Ronnie and Cheryl Adams, the appellees. The agreement allowed the Adamses scheduled visitation of their grandchildren, C.P.J. and S.B.J., Jackson’s two minor children. In two issues, Jackson argues 1. the trial court’s order amending the previous visitation schedule infringes on his fundamental right to direct the care, custody, and control of his children; and 2. the is entitled to request termination of the previous order, even though he agreed to it, because a recent U.S. Supreme Court decision constitutes a “change in circumstances.” HOLDING: Affirmed. Jackson relies on Troxel v. Granvillefor the proposition that fit parents hold a special interest “in the care, custody, and control of their children . . . [which] is perhaps the oldest of the fundamental liberty interests recognized.” Further, Jackson cites Troxelfor its holding that when a court decides nonparental visitation rights, it must accord material weight to a fit parent’s decision of how to raise his child. Jackson argues that because there is neither an allegation by the Adamses nor a finding by the trial court that he was or is unfit, the trial court’s decision to continue visitation by the grandparents necessarily infringes upon his parental liberty interest. This ” Troxelargument” is the substance of Jackson’s first issue. It is clear that a parent does hold a special liberty interest in the care, custody, and control of the parent’s children. That liberty interest of parents includes the right “to direct the upbringing and education of children under their control.” Children are not “mere creature[s] of the State.” The decisions of the Supreme Court with respect to this parental right reflect “Western civilization concepts of the family as a unit with broad parental authority over minor children.” Accordingly, when a court is injected into a situation wherein it is asked to make decisions respecting the competing wishes of a fit parent and the child’s grandparents, the court “must accord at least some special weight to the parent’s own determination.” Several Texas courts have addressed the grandparent visitation statute since the Troxeldecision was delivered. However, no decision has directly held that the statute is unconstitutional. In this case, the court’s evaluation under Troxelof specifically how the trial court applied the facts to the statute is hampered by the absence of findings of fact and conclusions of law. However, because this is a de novo review, the court looks to the evidence in the record and considers Jackson’s claim that the Adamses’ visitation must be terminated on constitutional grounds in light of Troxel. The facts in the instant case show that Jackson had agreed to the Adamses’ visitation in 1999. At the hearing on his motion to modify, Jackson testified he was not refusing to allow visitation. Rather, he asked that there be no court order directing visitation. Jackson stated that he preferred to make the decisions regarding visitation with some “flexibility” so that there would be little interference with the lives of his children as part of the new family. The Adamses direct the court’s attention to their own testimony and that of Jackson, which showed that Jackson had blocked the Adamses’ telephone calls to the children. There was also testimony that Jackson ignored or was rude to the Adamses on occasion and sometimes refused to talk to them in public places. Further, Dianna Lynn Rumsey, a court-appointed counselor, testified regarding her discussions with Jackson prior to the 1999 agreed order. Rumsey stated that Jackson had expressed his view that visitation once or twice a year would be sufficient. Additionally, Jackson testified at the hearing that it was his belief that because of the visitation statute, the Adamses were “guaranteed” some form of visitation by law. The Adamses point to this amalgam of testimony as reflecting 1. Jackson’s tendency to allow only that visitation which is ordered by the court, and 2. Jackson’s potential for avoiding the Adamses’ visitation altogether were it within his sole discretion. Essentially, the Adamses argue the trial court could have determined a court order was necessary to ensure some visitation, despite Jackson’s testimony that the children should have a relationship with their grandparents and despite his assurances that visitations would continue. The court concludes there are at least several pivotal facts that show that the trial court did not deny due process to Jackson respecting his parental rights. First, Jackson agreed to the 1999 visitation order, which specifically found that visitation was in the “best interests of the children.” Additionally, the trial court was presented with Jackson’s testimony, which complained that the currently ordered visitation schedule was excessive and that there was a conflict between Sunday visitation with the children’s church attendance. By reducing the visitation schedule and excluding Sunday visitation, the trial court’s judgment plainly resolved any such conflict. Further, Jackson testified he was not refusing visitation by the Adamses. In fact, at one time, Jackson said he believed visitation by the Adamses was “guaranteed” by law. However, there was concern raised by the Adamses that without an order, Jackson would not allow visitation. Based upon the foregoing, the court concludes the relief ordered by the trial court respecting Jackson’s motion and the application of the grandparent access statute to Jackson does not violate his due process rights as described in Troxel. It is apparent that the trial court was able to craft its decision by according “at least some special weight to the parent’s own determination.” Based upon the facts before the court and the arguments made on appeal by the parties, the court concludes the record does not reflect that the trial court failed to “accord at least some special weight to the parent’s own determination” when it made the decision to modify the prior visitation order rather than terminate it. Accordingly, the court concludes �153.433 of the Texas Family Code is not unconstitutional on the basis of the holding in Troxelas that statute is applied to Jackson. Additionally, based upon the record and the arguments developed in this case, the court cannot say that the statute is unconstitutional on its face. OPINION: Lang, J; James, Francis and Lang, JJ

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