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Click here for the full text of this decision FACTS:Melissa learned she was pregnant in 2005 and she believed the father was her ex-boyfriend, Adrian Davis. On May 16, 2006, Melissa gave birth to her son. He was slightly underweight and doctors worried that he had enlarged kidneys, but further tests results have been normal. Clarissa had somehow spoken to Sylvia Gonzalez, who is Sam Gonzalez’s sister, and Clarissa and Sylvia arranged for the Gonzalezes to come meet Melissa and the baby in the hospital two days later. Sam Gonzalez testified that on May 17, Sylvia called and told him that “[t]he hospital wanted a name for the child. [Melissa] did not want to give it a name; therefore, we presented our name, and that’s what they put down on the birth certificate.” Melissa said that she allowed the Gonzalezes to choose S.G. as the baby’s name “[b]ecause Sylvia told my friend, Clarissa, that they picked out a name.” The Gonzalezes arrived at the hospital at about 11:00 a.m. on May 18 and spoke to Melissa for about two hours. Melissa testified that the Gonzalezes told her that they “could have an open adoption, and I could be in his life,” and “[t]hat I could change my mind up until I signed the actual adoption papers.” That same day, based in part on those assurances, Melissa told them she wanted them to adopt S.G. and signed a release allowing the Gonzalezes to take him home from the hospital. She testified that when she allowed the Gonzalezes to take S.G. home from the hospital, she did not want to kiss him because, “I felt that if I kissed him, . . . I wouldn’t be able to give him away to them, and I knew how much they wanted a baby.” Melissa testified that she regretted giving S.G. to the Gonzalezes almost immediately but did not tell anyone until she talked to her parents. On May 25, a week after the Gonzalezes took S.G. home with them, Melissa told her mother about S.G., and her mother responded that “if I wanted my baby . . . we can go back and get my baby.” Melissa called the Gonzalezes that day and told them she had changed her mind and wanted to raise S.G. herself. Melissa testified that the Gonzalezes led her to believe that she could pick up S.G., so she and her parents drove about five hours from Lubbock to Brady, to the home of Peter and Mary Ann Castro, Laura Gonzalez’s brother and sister-in-law. They understood that the Gonzalezes would meet them there, but when they arrived at the Castros’ house, the Gonzalezes were not present and did not answer their phone. Melissa and her parents spoke to the Castros for about three hours that night. Contrary to Mary Ann Castro’s testimony, Melissa denied agreeing that S.G. should stay with the Gonzalezes, testifying that she agreed generally with some of the Castros’ statements about S.G.’s needs. Melissa testified that she and her parents left and returned to Lubbock about 11:00 p.m. without seeing the Gonzalezes or S.G. because it was so late and they were frustrated: “I was ready to go home because they were giving us the run-around because we were supposed to meet Sam and Laura, not them [the Castros], to discuss the situation with the child.” Two days later, on May 27, Melissa and her parents again drove to Brady to pick up the child, first calling the Gonzalezes to say they were on the way. Sam advised Melissa to bring a change of clothes and a car seat for the baby. Once again, when Melissa arrived at the Castros’ house, the Gonzalezes were not there and did not answer their phone. Melissa and her parents waited at the Castros’ house, then went to get something to eat. When they returned, Isaac Castro, another brother of Laura Gonzalez and the Gonzalezes’ attorney, told Melissa and her parents that they could not have the baby, showing them the hospital release she had signed and indicating that the “paper alone prevented [her] from taking the child.” Melissa testified that she wanted to raise S.G. and now knew she could so because she had a job and her parents would help her. Clarissa Sanchez testified at the hearing that Melissa was unsure about what to do when she learned she was pregnant. She did not want to tell her parents because of her grandfather’s illness and her uncle’s recent death, nor did she want to tell her ex-boyfriend. About two weeks before the birth, Sylvia Gonzalez called Clarissa and told her that her brother and sister-in-law might be prospective adoptive parents. Clarissa said she regretted her role in arranging the attempted adoption because she did not want to hurt the Gonzalezes but believed that “this baby should be with Melissa.” Clarissa and her mother originally planned to take Melissa’s son to their home until the proper legal papers were signed. But Sylvia called and said that the lawyer stated that if the Gonzalezes were going to adopt this baby, the Gonzalezes should take him home from the hospital. At the hearing, Sam Gonzalez testified that his sister Sylvia called him on May 16 and told him about Melissa and her baby. On May 17, Sylvia called to say that Melissa did not want to name the baby, so the Gonzalezes chose the baby’s name. The Gonzalezes drove to Lubbock on May 18, arriving about 11:00 a.m., and met with Melissa, who told them that she wanted them to adopt S.G. Laura Gonzalez testified that when Sylvia first told her and Sam about S.G., “Sam and I talked back and forth on the phone about what to decide to do here, and we thought it was too fast.” Laura said that Clarissa Sanchez’s initial plan to take care of S.G. until the adoption papers were signed “was just buying us time so that we could like I said, it was just very fast with school, and I was thinking if it were just a little bit later on when I was finished and things would be smoother in working this out.” Although Laura thought things were happening too fast, she also did not want S.G. to be “bounced around” from home to home, so she told Sam that “[i]t will work itself out.” Laura said that at the hospital, “My heart was hurting for Melissa before we even saw the baby.” Sam admitted that “at the beginning,” he told Melissa that she could change her mind anytime before she signed the adoption papers. Laura denied telling Melissa that they would have an open adoption. Seven days later, Melissa called to say she had changed her mind and was on her way to pick up S.G. Laura testified that when Sylvia called to say Melissa had changed her mind, Sam “immediately became upset and started crying.” The Gonzalezes called Melissa and asked her why she had changed her mind, and she answered, “My parents found out.” They pleaded with her and asked to talk to her and her parents to “tell them what kind of parents we want to be.” Sam called their attorney, who advised them that “probably we needed to sit down and try to talk to the parents since the parents had just found out that day.” However, when Melissa called after she and her parents arrived in Brady, Laura and Sam did not answer and did not offer to meet Melissa and her parents. Laura testified that she and Sam were not avoiding Melissa, but said, “We were so uncertain as to . . . what [Melissa's] parents were going to be like. Whether they were going to be upset.” The Gonzalezes did not meet with Melissa or her parents that day, nor did they meet Melissa and her parents on May 27, when they again made the trip; the Gonzalezes never told Melissa not to drive to Brady. Sam testified that when Melissa called on May 27, he and Laura had already made plans to be out of town. They again contacted their lawyer, who “advised if you had already made a date . . . to go ahead and go, and our lawyer would talk to them about it.” Mary Ann Castro testified that Melissa and her parents came to the Castros’ house on May 25, arriving about 8:00 p.m. and leaving about 11:00 p.m. Mary Ann testified that she spoke to them and asked Melissa “what she wanted me to tell Sam and Laura, and she said she wanted to give the baby to Sam and Laura.” Mary Ann allowed Melissa to talk to her mother alone, after which Melissa’s mother told Mary Ann, “She couldn’t hardly take care of herself. How could she take care of a baby?” Mary Ann testified that she asked Melissa if she was sure she wanted the Gonzalezes to keep S.G., saying, “‘[T]he last thing I want is to go to Sam and Laura and you change your mind. That would not be fair.’ I turned to her mother, and I said,”Am I out of line?’ She said,”No. You’re right. She would have to sign the papers.’” Mary Ann said Melissa and her parents left soon after, but two days later, Sam called the Castros and said Melissa was driving back to Brady. When she and her parents arrived this time, Mary Ann told them the Gonzalezes were out but would return later that day. Melissa and her parents left to get something to eat and when they returned about two hours later, Isaac Castro showed them the hospital release Melissa had signed; Mary Ann did not recall hearing Castro tell Melissa or her parents that the release “prevented them from taking the baby.” Although Mary Ann said Melissa and her parents never asked to see the Gonzalezes or S.G., she admitted that she knew they had come “to pick the baby up.” On May 29, two days after Melissa’s second attempt to regain custody of her son, the Gonzalezes filed a petition seeking to have Melissa’s parental rights terminated and asking to be appointed S.G.’s temporary managing conservators. As grounds for termination, the Gonzalezes alleged that Melissa had 1. voluntarily left S.G. alone or in the possession of a non-parent and expressed an intent not to return, 2. knowingly placed or left S.G. in conditions or surroundings that endangered the child’s well-being, and 3. engaged in conduct that endangered the child. On May 30, the trial court signed a temporary restraining order excluding Melissa from possession of the child and enjoining her from attempting to remove him from the Gonzalezes’ custody. Melissa filed a motion to dismiss, arguing that the Gonzalezes lacked standing to seek to terminate her rights. On June 12, the trial court held a hearing and made an oral ruling that the Gonzalezes had standing under an affidavit of relinquishment signed by the alleged biological father and under Texas Family Code �102.005. The trial court noted that the burden of proof in a termination case is very high, but found that the child was not in danger and ruled that it would maintain the status quo and allow S.G. to remain in the Gonzalezes’ home, appointing them as temporary managing conservators. In her petition for writ of mandamus, Melissa complains of the court’s refusal to dismiss the underlying suit and its order denying her possession of S.G. We conditionally grant Melissa’s petition. As discussed below, it is not clear that the Gonzalezes had standing to bring their termination suit. Assuming without deciding that they do, the trial court abused its discretion in naming them temporary managing conservators and excluding Melissa from possession of the child. HOLDING:The court conditionally grants Melissa’s petition for writ of mandamus and vacates the trial court’s temporary order. The case is remanded. “This is a difficult and painful case no matter the outcome. We have no doubt that the Gonzalezes have S.G.’s best interest in mind and dearly love him. They have surely acted out of love for the child they already consider their own. However, they have no legal rights to this child, only a deep emotional bond.” There was no evidence to support the trial court’s decision to disregard the presumption that Melissa as the parent should have temporary possession of S.G. The trial court misplaced the burden of proof by not requiring the Gonzalezes to rebut the presumption in favor of granting Melissa possession of the child, given the paucity of their legal claims to possession, most notably, the lack of an affidavit from Melissa relinquishing her parental rights, as required by the family code. The court does not decide the issue of whether the Gonzalezes have standing to bring suit, because, even if they do have standing, the trial court abused its discretion in naming them temporary managing conservators. OPINION:David Puryear, J.; Law, C.J., Smith and Puryear, J.J.

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