Jury’s award of custody to nonparents reversed on appeal

MEMORANDUM OPINION

Appellant, [Child’s Mother], challenges the trial court’s August 4, 2010 order, entered after a jury trial, appointing appellees, Bryan James Danet and William Todd Kranz, as the sole managing conservators of [Mother]’s minor child, J.A.B.[1]  In her first two issues, [Mother] contends that the evidence is legally and factually insufficient to support the jury’s finding that her appointment as sole managing conservator would significantly impair the child’s physical health or emotional development and the trial court erred in not allowing her to present testimony from out-of-state witnesses via telephone.  In her third issue, [Mother] requests that this Court enforce the parties’ partial-settlement agreement, signed after the trial court’s order, depending on the resolution of this appeal.

We reverse and render judgment.

Background

On March 31, 2006, Child Protective Services (“CPS”) removed the child from the custody of [Mother] and placed him in the foster care of Danet and Kranz.  Although CPS chose not to seek termination of [Mother]’s parental rights, Danet and Kranz, on October 2, 2007, filed their petition in this suit affecting the parent-child relationship (“SAPCR”), seeking appointment as the child’s joint managing conservators.  In response, [Mother] filed an amended answer and original counter-petition, seeking appointment as the child’s sole managing conservator.  In 2008, the parties entered an agreement[2] naming Kranz and Danet as temporary managing conservators of the child and [Mother] as the temporary possessory conservator of the child during the pendency of court proceedings. 

At trial, Kranz testified that he and Danet had taken care of the child for four years and four months.  After CPS decided not to seek termination of [Mother]’s parental rights, he and Danet, in October 2007, decided to “get involved in the case” and file their SAPCR petition to be appointed as joint managing conservators.  When they first received custody in April 2006, the child was seven months old and suffered from a “very severe diaper rash.”  Kranz thought that the child had been “starving,” as if “he didn’t know when his next meal was going to be.”  After Kranz and Danet received custody, [Mother] “pretty much abandoned” the child by moving to Wisconsin and not visiting him for six months.  She came down to visit the child “on average” only “two [weekends] a year” even though her visitation schedule allowed monthly visits.  In addition, [Mother] would occasionally bring with her “different men” whom the child did not know, and she never brought “the same person twice.”

Kranz explained that [Mother] had initially thought that the child’s father was Joseph Alaniz, who was her boyfriend at the time she lost custody of the child.  However, a paternity test revealed the father to be George Hogeland, whom [Mother] lived with for five months before she moved to Houston.  About four months after losing custody of the child, [Mother] was arrested for “disturbance of the peace” after fighting with Alaniz in a Family Dollar store parking lot.  Shortly thereafter, [Mother], pregnant with her second child, who was Alaniz’s son, moved to Wisconsin.  After she had given birth to Alaniz’s son, Alaniz “beat the crap out of her in the hospital.”  At the time of trial, Alaniz was incarcerated and scheduled to be released in October 2011.

Kranz noted that in late 2006, [Mother] told him that if she were to take a drug test, “it would turn out dirty.”  [Mother] was then ordered by CPS to take a drug test within 24 hours, but she did not comply.  She had also informed Kranz that Alaniz had a drug problem.  

Kranz further testified that in March 2008, [Mother] came to Houston for a weekend visit with the child.  After visiting on a Saturday, [Mother] called on Sunday morning, explaining that she was not feeling well and would meet him and the child at the Houston Children’s Museum at noon, an hour later than previously scheduled.  She did not arrive at the museum until 2:20 p.m., and she “very sneakily walk[ed] past the admission where you pay.” 

Kranz noted that in 2008, [Mother] brought her younger son and a man, “Michael,” on her visit to the child.  Afterwards, [Mother] failed to call the child for three weeks because they had “decided to go to New Orleans,” where Michael let “some girl . . . borrow their truck.”  [Mother] told Kranz that “the truck [had] disappeared, so [[Mother], her younger son, and Michael] had to take [a] bus back to Wisconsin,” leaving [Mother] without a telephone.  In watching [Mother] interact with her other son, Kranz noted that “there doesn’t appear to be respect for her,” and the child “screams at her” and “slaps” people.    

Danet testified that during [Mother]’s visits, the child would “get[] very scared and [cry] at night,” which he described as “very typical after pretty much every visit that he has when [[Mother]] comes into town.”  Although Kranz and Danet encouraged [Mother] to call the child and scheduled regular telephone calls, sometimes they “would come home for the phone call and then she wouldn’t call at all.”  In the six months prior to trial, the child would complain that he did not want to talk with [Mother].  However, Danet explained that if he and Kranz were to be appointed managing conservators, they would still encourage the child to remain in contact with [Mother].

Linda McDonald, a co-worker and family friend of Kranz and Danet, testified that in August 2008, she supervised one of [Mother]’s visits.  Once, when [Mother] “wanted to make a special celebration” for the child’s birthday, they visited her at a local hotel where [Mother] was staying.  [Mother] had brought her younger son and a “friend that was introduced as Dennis,” who had “very little interaction” with the child.  The amount of time that [Mother] spent with the child was “very limited.” 

Rebecca Weiser, a co-worker and friend of Kranz, testified that in August 2009, she supervised a visit at the hotel in which [Mother] was staying.  She noted that while the child was in the hotel pool, he “went under three times,” and Weiser had to “pull[] him up out of the water” each time.  This caused her to be “concern[ed] for [the child’s] safety.”  On cross-examination, Weiser admitted that she did not move to terminate the visitation or contact CPS after the incident and that Kranz was supervising the child as well.   

[Mother] testified that when she, with her mother, moved to Houston in December 2004, she was unaware that she was already pregnant with the child.  Shortly after arriving in Houston, she met Alaniz and, despite his abusive tendencies, she later moved into a house with him in mid-2005.  She noted that Alaniz would hide her driver’s license, delete her telephone numbers, and attempt to control her.  In December 2005, police officers were dispatched to their home to investigate alleged domestic violence, and, by March 2006, [Mother] was “just waiting for an opportunity to get out” and move away from Alaniz.  She explained that she should have left the relationship sooner, but she was “really screwed up” at the time and “dismissed a lot of [Alaniz’s] behavior” because she “thought it was important to have a family unit.” 

On the morning of March 31, 2006, [Mother] planned to escape from Alaniz’s abuse and take her child with her.  The child had been diagnosed with “thrush,” a yeast infection, which, [Mother] explained, accounted for his diaper rash.  To treat the thrush, she packed two antibiotics prescribed by the child’s pediatrician.  Because Alaniz had hidden her driver’s license, [Mother] had to “go through half the house” to find it and left the house “messy.”  She then took the child with her to a bus stop to take a bus to her mother’s house in Wisconsin while Alaniz was away.  However, Alaniz found [Mother] at a bus stop, confronted her, and accused her of being a “drug user.”  He then “[took] off on a bicycle with” the child, [Mother] called for emergency assistance, and a police officer drove her back to the house in a patrol car.  Alaniz and the child were already at the house, and the police officer, after questioning [Mother] and Alaniz, took the child away in a patrol car.  [Mother] explained that because the officer had taken the child away, she did not have time to feed him or apply his thrush medication.   [Mother] was quite upset and spent the weekend in a hotel room.  She then attended a court hearing the following Monday, and the court ordered her to submit to a narcotics test, which came back positive for cocaine.  She submitted an affidavit in which she named Alaniz as the child’s father, which she believed to be true at the time.  The child was not returned to [Mother] at the hearing. 

After the hearing, [Mother] moved back to Wisconsin to join her mother and notified CPS that she had moved.  In June 2006, CPS informed her that it would seek “unrelated adoption” for the child.  [Mother] then returned to Houston for a second hearing, and CPS submitted to her a Family Service Plan (“FSP”).  [Mother] understood that she could regain custody of the child if she “not just completed [the FSP] but did . . . very well.”  Later, in the summer of 2006, [Mother] stayed in Houston with Alaniz.  She attended parenting courses, underwent a psychological evaluation, and stayed two nights at an “in-patient drug facility” pursuant to the FPS. 

In September of 2006, [Mother] returned to Wisconsin, and Alaniz followed her.  After the birth of her second child, Alaniz “beat [her] up” in the hospital room and was arrested.  [Mother] later bought Alaniz a bus ticket to return to Houston, while she remained in Wisconsin.  There, she followed the FSP by taking parenting and relationship courses, attending drug and domestic violence counseling sessions, and undergoing follow-up psychological evaluations.  At the time, she was working as a cashier at a dollar store and had a second job “doing clerical work.”   She was living in “Section 8 housing” with her mother and second child and receiving food stamps. 

[Mother] admitted that she had previously been arrested in Massachusetts on a charge relating to heroin, and, in 1999, she was convicted in Wisconsin for possession of marijuana and battery.  She also admitted that, in 2006, she used cocaine while pregnant with her younger son, causing her to fail the court-ordered narcotics test.  [Mother] further admitted that in July 2007, she was scheduled to fly to Houston for a visitation, but the airline would not allow her on the plane “due to [her] intoxication,” so she boarded an early flight the next morning. 

[Mother] explained that if she was awarded custody of the child, she would take him back to Wisconsin and continue to live with her mother.  She noted that her family could not come to Houston to visit the child because her mother had health problems and Kranz and Danet were not cooperative with them.  Specifically, [Mother] asserted that they were “alienating” and “isolating” her from the child.  Kranz and Danet would not disclose the child’s medical records to her, moved him to different schools without informing her, and “took him out of school” when [Mother] planned to visit him in class.  She further explained that the financial burden of traveling to Houston and the time that it took to raise her second son made it difficult for her to make regular trips to Houston. 

Sufficiency of the Evidence

In her first issue, [Mother] argues that the evidence is legally and factually insufficient to support the jury’s finding that her appointment as sole managing conservator would significantly impair the child’s physical health or emotional development.  She asserts that most of the evidence against her relates only to her “past conduct . . . which occurred approximately four or more years prior to trial    . . . [and] does not implicate [her] present parental fitness.”  [Mother] further asserts that the evidence is “legally insufficient to overcome the parental presumption as a matter of law” and consists of “minor, insubstantial conduct” that only establishes that she is an “imperfect person.”

Danet and Kranz argue that the evidence is legally and factually sufficient to support the jury’s finding that they should be the child’s sole managing conservators because removing the child from their home at the time of trial “would significantly impair his emotional development.”  They also assert that

[T]he jury heard evidence that [[Mother]’s] bad parenting would significantly impair [the child’s] physical health or emotional development.  Less than a year before trial, [the child] nearly drowned in a swimming pool while [[Mother]] was supposed to be watching him.  And [[Mother]] repeatedly made extraordinarily bad decisions related to her visits with [the child], including being so drunk at the airport that she was not allowed to fly.  The evidence, therefore, supports the jury’s finding that awarding [[Mother]] sole managing conservatorship would significantly impair [the child’s] physical health or emotional development.

 We will sustain a legal-sufficiency or “no-evidence” challenge if the record shows one of the following: (1) a complete absence of evidence of a vital fact, (2) rules of law or evidence bar the court from giving weight to the only evidence offered to prove a vital fact, (3) the evidence offered to prove a vital fact is no more than a scintilla, or (4) the evidence conclusively establishes the opposite of the vital fact.  City of Keller v. Wilson, 168 S.W.3d 802, 810 (Tex. 2005).  In conducting a legal-sufficiency review, a court must consider evidence in the light most favorable to the verdict and indulge every reasonable inference that would support it.  Id. at 822.  The term “inference” means,

In the law of evidence, a truth or proposition drawn from another which is supposed or admitted to be true. A process of reasoning by which a fact or proposition sought to be established is deduced as a logical consequence from other facts, or a state of facts, already proved. . . .

Marshall Field Stores, Inc. v. Gardiner, 859 S.W.2d 391, 400 (Tex. App.—Houston [1st Dist.] 1993, writ dism’d w.o.j.) (citing Black’s Law Dictionary 700 (5th ed. 1979)).  For a jury to infer a fact, “it must be able to deduce that fact as a logical consequence from other proven facts.”  Id. 

If there is more than a scintilla of evidence to support the challenged finding, we must uphold it.  Formosa Plastics Corp. USA v. Presidio Eng’rs & Contractors, Inc., 960 S.W.2d 41, 48 (Tex. 1998).  “‘[W]hen the evidence offered to prove a vital fact is so weak as to do no more than create a mere surmise or suspicion of its existence, the evidence is no more than a scintilla and, in legal effect, is no evidence.’”  Ford Motor Co. v. Ridgway, 135 S.W.3d 598, 601 (Tex. 2004) (quoting Kindred v. Con/Chem, Inc., 650 S.W.2d 61, 63 (Tex. 1983)).  If the evidence allows only one inference, neither jurors nor the reviewing court may disregard it.  Id.  However, if the evidence at trial would enable reasonable and fair-minded people to differ in their conclusions, then the fact-finder must be allowed to do so.  Id.  A reviewing court cannot substitute its judgment for that of the fact-finder, so long as the evidence falls within this zone of reasonable disagreement.  Id.

In conducting a factual-sufficiency review, we must consider, weigh, and examine all of the evidence that supports or contradicts the fact-finder’s determination.  Plas-Tex, Inc. v. U.S. Steel Corp., 772 S.W.2d 442, 445 (Tex. 1989).  We may set aside a verdict only if the evidence supporting it is so contrary to the overwhelming weight of the evidence as to be clearly wrong or manifestly unjust.  Cain v. Bain, 709 S.W.2d 175, 176 (Tex. 1986).  When conducting a factual-sufficiency review, we must not merely substitute our judgment for that of the fact-finder. Golden Eagle Archery v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).  The fact-finder is the sole judge of the credibility of witnesses and the weight to be given to their testimony.  Id.

In any case involving an issue of conservatorship, the best interest of the child must always be the primary consideration of the trial court.  Tex. Fam. Code Ann. § 153.002 (Vernon 2008).  The court must presume that the best interest of the child is served by appointing a biological parent as sole managing conservator or both biological parents as joint managing conservators.  See id. § 153.131(a) (Vernon 2008); see also In re V.L.K., 24 S.W.3d 338, 341 (Tex. 2000); Mumma v. Aguirre, 364 S.W.2d 220, 221 (Tex. 1963).  Nonparents seeking conservatorship carry a “heavy burden” of overcoming this presumption.  Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990).  It is no longer adequate to offer evidence that a nonparent would be a better custodian of a child.  Id.  Instead, the parental presumption may only be rebutted with proof of certain findings prescribed by statute.  Id.

A nonparent may rebut the presumption in favor of a biological parent only if evidence is produced showing that appointment of the biological parent as managing conservator would “significantly impair the child’s physical health or emotional development.”  Tex. Fam. Code Ann. § 153.131(a); see In re R.T.K., 324 S.W.3d 896, 902–03 (Tex. App.—Houston [1st Dist.] 2010, pet. denied).  A nonparent may also overcome the presumption by producing evidence of “a history or pattern of past . . . physical . . . abuse by [a] parent directed against the other parent, a spouse, or a child.”  Tex. Fam. Code Ann. § 153.004(b) (Vernon 2008).  In disputes between a parent and a nonparent, the Texas Legislature has mandated that “close calls” should be decided in favor of the biological parent.  Lewelling, 796 S.W.2d at 168.  Here, the trial court instructed the jury, in pertinent part, as follows:

The biological parent shall be appointed sole managing conservator, in preference to a non-parent, unless appointment of the biological parent would not be in the best interest of the child because the appointment would significantly impair the child’s physical health or emotional development.

“Significantly Impair” means the non-parent must affirmatively prove by a preponderance of the evidence through specific actions or omissions of the parent that demonstrate that an award of custody to the parent would result in physical or emotional harm to the child.

[Mother] notes that much of the record evidence, including evidence of the child’s “severe diaper rash” and the condition of her and Alaniz’s home when police officers took the child, her use of cocaine while she was unknowingly pregnant with her second child, her two misdemeanor convictions, and her intoxication at an airport in 2007, concerns conduct that occurred three or more years prior to trial.  She asserts that this evidence does not implicate her “present parental fitness” or support the jury’s finding that her conservatorship would significantly impair the child’s physical health or emotional development. 

In support of her assertion, [Mother] relies on In re S.W.H, 72 S.W.3d 772 (Tex. App.—Fort Worth 2002, no pet.).  In S.W.H, the court held that evidence that a mother had been twice incarcerated for testing positive for narcotics, in violation of her probation and more than four years prior to trial, was insufficient to support a finding that the appointment of the mother as managing conservator of the child would significantly impair the child.  Id. at 777–78.  Noting that the mother had presented uncontroverted evidence that she had remained “clean” for three years prior to trial, the court explained that “evidence of past misconduct may not, by itself, be sufficient to show present parental unfitness.”  Id. at 778.    Furthermore, the Thirteenth Court of Appeals has noted that if a parent “is presently a suitable person to have custody, the fact that there was a time in the past when the parent would not have been a proper person to have such custody is not controlling.”  May v. May, 829 S.W.2d 373, 377 (Tex. App.—Corpus Christi 1992, writ denied); see also In re M.W., 959 S.W.2d 661, 666 (Tex. App.—Tyler 1997, writ denied) (“When determining fitness of a parent, the material time to consider is the present.”).  However, past misconduct may be considered due to the “permissible inference that an adult person’s future conduct may well be measured by [their] recent deliberate past conduct as it may be related to the same or a similar situation.”  Id.

Here, Kranz and Danet’s evidence concerning [Mother]’s more recent conduct in Houston does reveal that [Mother] brought different men with her on her visits with the child, visited the child only twice a year after losing custody of him, showed up late to a visit, tried to board an airplane while intoxicated, “snuck” into the Houston Children’s Museum, and, after travelling to New Orleans following a visit with the child, did not call the child for three weeks.  Weiser did also testify that the child, during one of [Mother]’s visits at a hotel, “went under” the water in a pool three times and she had to pull him out of the water.   This evidence, however, does not establish that [Mother]’s past misconduct is sufficiently linked to her fitness, at the time of trial, to be the child’s custodian.  Kranz and Danet did not present evidence that [Mother]’s past drug use, misdemeanor criminal history, or Alaniz’s domestic violence, all of which occurred approximately four or more years prior to trial, constitute ongoing problems or part of a more recent pattern of behavior.  Thus, the jury could not have reasonably inferred that [Mother]’s more remote conduct implicated her parental fitness, at the time of trial, such that the appointment of her as the sole managing conservator of the child would significantly impair the child’s physical health or emotional development.  See May, 829 S.W.2d at 376–77.

Furthermore, Kranz and Danet’s evidence of [Mother]’s more recent conduct does not itself constitute evidence that the appointment of [Mother] as the sole managing conservator of the child would significantly impair the child’s physical health or emotional development.  Again, “[i]t is no longer adequate to offer evidence that the nonparent would be a better custodian of the child.”  Lewelling, 796 S.W.2d at 167.  The jury could have reasonably inferred that Kranz and Danet would be better custodians of the child based on [Mother]’s actions in sneaking into the Houston Children’s Museum, bringing different men to her visits with the child, and, after a visit with the child, taking a spontaneous trip to New Orleans and not calling the child.  However, there is no evidence that [Mother]’s conduct, albeit clearly inappropriate, constitutes “specific actions or omissions” that demonstrate that awarding her conservatorship would significantly impair the child’s physical health or emotional development.  See Tex. Fam. Code Ann. § 151.131(a). 

Kranz and Danet rely heavily on their evidence that the child “nearly drowned” during one of [Mother]’s visits.  Although Weiser did testify that he “went under” water three times at a hotel swimming pool during a visit, there is no evidence that the child “nearly drowned.”  Indeed, the child was accompanied by three adults: [Mother], Weiser, and Kranz.  And [Mother] had to watch her younger son as well during the visit.  Given these undisputed facts, the jury could not have reasonably inferred that the incident constitutes evidence that [Mother]’s conservatorship would significantly impair the child’s physical health or emotional development. 

Finally, Kranz and Danet argue that, even without reference to [Mother]’s conduct, “removing [the child] from the only home he has ever known” would “significantly impair his emotional development.”  This court has recently held that a trial court could have reasonably concluded that removing a child from “the only person who has consistently cared” for the child would “significantly impair” the child’s development.  McPherson v. Hollyer, No. 01-09-00619-CV, 2011 WL 1632163, at *6 (Tex. App.—Houston [1st Dist.] Apr. 28, 2011, no pet.) (quoting In re K.R.P., 80 S.W.3d 669, 674 (Tex. App.—Houston [1st Dist.] 2002, pet. denied)). 

Here, as noted above, the trial court’s charge to the jury included an instruction stating that “significantly impair” means “the non-parent must affirmatively prove by the preponderance of the evidence through specific actions or omissions of the parent that demonstrate that an award of custody to the parent would result in physical or emotional harm to child.”  (Emphasis added.)  [Mother] notes that the charge explicitly required Kranz and Danet to prove “specific acts or omissions” on her part to override the parental presumption in her favor and, regardless of our holding in McPherson, “it is the court’s charge . . . that measures the sufficiency of the evidence when the opposing party fails to object.”  Osterburg v. Peca, 12 S.W.3d 31, 55 (Tex. 2000).

“When neither party objects to a jury instruction, an appellate court must review the sufficiency of the evidence in light of the instruction actually given, even if the statement of the law in the charge is not correct, and even if the charge as given effectively increases the burden of proof on a party beyond that actually required by the correct law or results in a ‘more rigorous’ standard of proof.”  See Reliant Energy Servs., Inc. v. Cotton Valley Compression, L.L.C., 336 S.W.3d 764, 782 (Tex. App.—Houston 2011, no pet.) (citing Romero v. KPH Consol., Inc., 166 S.W.3d 212, 220–21 (Tex. 2005); Wal-Mart Stores, Inc. v. Sturges, 52 S.W.3d 711, 715 (Tex. 2001); City of Fort Worth v. Zimlich, 29 S.W.23d 62, 71 (Tex. 2000); IP Petroleum Co., Inc. v. Wevanco Energy, L.L.C., 116 S.W.3d 888, 897, n.8 (Tex. App.—Houston [1st Dist.] 2003, pet. denied)). 

Here, the trial court’s charge to the jury explicitly required that Kranz and Danet prove, by a preponderance of the evidence, that “specific actions or omissions” of [Mother] demonstrated that her custody of the child would result in physical or emotional harm to the child.  Thus, the jury could not rely solely on Kranz and Danet’s evidence that removing the child from their custody would be difficult and traumatic for the child.  In sum, Kranz and Danet did not present any evidence of [Mother]’s specific acts or omissions from which a fact finder could reasonably infer that the appointment of [Mother], the child’s biological parent, as sole managing conservator of the child would significantly impair the child’s physical health or emotional development.[3]  Accordingly, we hold that the evidence is legally insufficient to support the jury’s finding that Kranz and Danet, as non-parents, should be appointed the child’s managing conservators.  See City of Keller, 168 S.W.3d 802 at 810.

We sustain [Mother]’s first issue.

Conclusion

We reverse the order of the trial court and render an order appointing [Mother] as sole managing conservator of the child.  We also modify the order pursuant to the parties’ partial-settlement agreement and appoint Kranz and Danet as possessory conservators.[4] 

                                                                   Terry Jennings

                                                                   Justice

Panel consists of Justices Jennings, Sharp, and Brown.

SOURCE: HOUSTON COURT OF APPEALS - 01-10-00963-CV – 4/12/2012

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[1]           See Tex. Fam. Code Ann. § 153.005 (Vernon 2008).

[2]           See Tex. R. Civ. P. 11.

[3]           To the extent that Kranz and Danet argue that any harmful effect of removing the child from their custody would be precipitated by an act or omission of [Mother], whether by her moving to Wisconsin or visiting the child only twice a year, on average, since losing custody, [Mother] notes that she moved to Wisconsin for the purpose of escaping from Alaniz and living with her mother.  She also notes that she did not have the economic means to make more frequent visits to Houston to visit the child.  Furthermore, “the fact that [the child] has lived with [Kranz and Danet] for such a lengthy period is largely attributable to delays” in the judicial proceedings.  See Lewelling, 796 S.W.2d at 168 n.9 (noting parent was not at fault for “lengthy appeals process,” so length of time child spent with non-parents was largely “judicially created”).  Using such a fact to deny a parent conservatorship of her child would “thwart[] the legislatively-mandated parental preference.”  Id.

[4]           In her third issue, [Mother] asks, as do Kranz and Danet, that this court enforce the agreement that “[i]n the event that the Court of Appeals reverses the judgment of the Trial Court and renders judgment appointing [Child’s Mother] as the sole managing conservator . . . [Mother] agrees that [Kranz and Danet] shall be appointed as possessory conservators at the conclusion of this appeal.  In this event, the Parties agree to jointly request the Court of Appeals to implement this Agreement by rendering judgment appointing [Kranz and Danet] as possessory conservators.”  See Tex. R. Civ. P. 11.  Because we reverse the judgment of the trial court and render judgment in favor of [Mother], we render an order appointing Kranz and Danet as possessory conservators pursuant to the terms of the parties’ agreement.  See Tex. R. App. P. 42.1(a)(2)(A) (permitting appellate court to render judgment effectuating agreement of parties).

Is a claim of Adoption by Estoppel, equitable adoption viable in Texas?

ADOPTION BY ESTOPPEL - ADOPTION WITHOUT FORMALITIES & COURT ORDER

Adoption by estoppel is a remedy applied when efforts to adopt are ineffective because of failure to strictly comply with statutory adoption procedures or because, out of neglect or design, an agreement to adopt is not performed. See Cavanaugh v. Davis, 149 Tex. 573, 235 S.W.2d 972, 973-74 (1951); Luna v. Estate of Rodriguez, 906 S.W.2d 576, 579-80 (Tex. App.—Austin 1995, no writ).

Parties who live in a parent-child relationship based on an unperformed agreement to adopt the child do not create the legal status of a parent and child, but a parent’s promises and conduct can create an equitable adoption which allows the child to assert intestate succession rights to the parent’s estate. See Heien v. Crabtree, 369 S.W.2d 28, 30 (Tex. 1963). The burden is on the proponent to establish the existence of the equitable adoption by a preponderance of the evidence. Moran v. Adler, 570 S.W.2d 883, 885 (Tex. 1978). An agreement to adopt between the parties, i.e., between the adoptive parent and the child, or between the adoptive parent and the natural parent, must exist before the trial court may apply the equitable doctrine of adoption by estoppel. Cavanaugh, 235 S.W.2d at 974; In re Estate of Castaneda, 687 S.W.2d 465, 466 (Tex. App.—San Antonio 1985, no writ). Proof of the agreement does not require direct evidence; circumstantial evidence will suffice where it is clear, convincing, and unequivocal. Cavanaugh, 235 S.W.2d at 975, 978.

SOURCE: SAN ANTONIO COURT OF APPEALS - 04-11-00011-CV - 10/12/11


After reviewing the evidence presented in favor of the probate court’s finding, we conclude it was legally sufficient to support the finding that there was no agreement by Whiting to adopt Summer. Of the eight witnesses who testified, not one stated that Whiting agreed to adopt Summer. There is no evidence that a formal adoption proceeding was ever contemplated by Whiting, nor is there evidence that Whiting made an express promise to adopt Summer. Although all of the witnesses testified to the loving “father-daughter” relationship between Whiting and Summer, emotional bonds do not impute the legal bond of adoption absent evidence of an agreement to adopt. See Johnson v. Chandler, No. 14-03-00123-CV, 2004 WL 1946077,
at *4 (Tex. App.—Houston [14th Dist.] Sept. 2, 2004, no pet.) (mem. op.); Acevedo v. Acevedo, No. 03-03-00309-CV, 2004 WL 635321, at *3 (Tex. App.—Austin Apr. 1, 2004, no pet.) (mem. op.); see also Estate of Castaneda, 687 S.W.2d at 466 (fact that alleged adoptive father supported appellants and referred to them as his children was insufficient to establish an adoption by estoppel absent evidence of an agreement or promise to adopt). Accordingly, we hold the evidence was legally sufficient to support the finding.

Can Live-In Boyfriend Claim SAPCR Standing as De Facto Parent after the Break-up?

Under some circumstances nonparents can assert standing for purposes of conservatorship and visitation under the Texas Family Code. The courts are not necessarily in agreement, or predictable, when it comes to the application of the relevant statutory rules to actual situations, as seen in this recent court of appeals case, in which the majority ordered the trial court to withdraw an order granting temporary joint managing conservatorship to a man who had resided with the child's mother and helped raise the child from infancy to school age.

The majority on the Beaumont Court of Appeals found lack of standing and also rejected "in loco parentis" as an alternative theory. The chief justice of the court, however, dissented, and would have upheld the trial court's decision granting the non-biological father figure -along with the child's mother - temporary joint custody after their break-up based on "actual care, control, and possession" of the child by the boyfriend.

OPINION OF THE BEAUMONT COURT OF APPEALS (issued July 16, 2009)

Relator, the mother of the minor child L.G.C., filed a petition for writ of mandamus to compel the trial court to vacate temporary orders and to set aside any purported grant of parental rights to the real party in interest. We conditionally grant the writ.

Procedural History

The real party in interest, who is not a parent of the child but previously resided with relator and the child, filed a suit affecting the parent-child relationship (SAPCR) requesting that he and the relator be appointed joint managing conservators of the child. The relator appeared pro se, as did the child's father, and requested time to find an attorney. She explained she could not afford an attorney at that time. The trial court suggested the parties confer. Agreed temporary orders were then signed by the parents, pro se, and by the petitioner and his attorney. The temporary orders named relator and the petitioner temporary joint managing conservators. Relator was named the primary managing conservator. The temporary orders gave the petitioner and the child's father visitation rights.

After obtaining an attorney, relator filed motions challenging the petitioner's standing to file the suit. The trial court denied relator's challenge.

Mandamus

An appellate court may issue a writ of mandamus to correct an abuse of discretion for which relator has no adequate remedy by appeal. Walker v. Packer, 827 S.W.2d 833, 839-40 (Tex. 1992). A failure by the trial court to apply the law correctly constitutes an abuse of discretion. Id. at 840. Where the relator challenges the trial court's subject matter jurisdiction to enter a temporary order in a suit affecting the parent-child relationship, a remedy by appeal is inadequate. See Little v. Daggett, 858 S.W.2d 368, 369 (Tex. 1993); Dancy v. Daggett, 815 S.W.2d 548, 549 (Tex. 1991); In re Herring, 221 S.W.3d 729, 730 (Tex. App.--San Antonio 2007, orig. proceeding) ("Because temporary orders in suits affecting the parent-child relationship are not appealable, a petition for a writ of mandamus is an appropriate means to challenge them."). See also generally In re Derzapf, 219 S.W.3d 327, 334-35 (Tex. 2007) (Mandamus relief is appropriate to set aside temporary orders that divest, in violation of laws, a fit parent of possession of children.).

Standing

The law of standing focuses on whether a party who has filed an action is a proper party to raise the legal issue presented for adjudication. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993). Standing is a component of subject matter jurisdiction. Id. at 443; Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App.--Houston [1st Dist.] 2006, pet. denied); Dep't of Family & Protective Servs. v. Alternatives in Motion, 210 S.W.3d 794, 799 (Tex. App.--Houston [1st Dist.] 2006, pet. denied). A party generally cannot confer or obtain standing by consent or agreement. In re Smith, 262 S.W.3d 463, 466 (Tex. App.--Beaumont 2008, orig. proceeding). (1) Because the requirement is a component of subject matter jurisdiction, standing to file suit is not conferred or obtained by waiver, and can be challenged at any time. Tex. Ass'n of Bus., 852 S.W.2d. at 440, 445; Sarah v. Primarily Primates, Inc., 255 S.W.3d 132, 139 (Tex. App.--San Antonio 2008, pet. denied).

In an original suit affecting the parent-child relationship in which the petitioner seeks managing conservatorship, the question of standing is a threshold issue. In re M.P.B., 257 S.W.3d 804, 808 (Tex. App.--Dallas 2008, no pet.). A petitioner seeking managing conservatorship has the burden to prove standing. See In re Smith, 262 S.W.3d at 465; Alternatives in Motion, 210 S.W.3d at 799. The Texas Legislature has provided a comprehensive statutory framework for standing in the context of suits involving the parent-child relationship. See Tex. Fam. Code Ann. §§ 102.003, 102.0035, 102.004, 102.0045, 102.006 (Vernon 2008); In re Smith, 262 S.W.3d at 465.

The petitioner in this case alleged standing based on his assertion that "the child has resided with him continuously for over a six month period of time." The Family Code provides standing to a person with whom the child and a parent have resided for at least six months if the "parent is deceased at the time of the filing of the petition." See Tex. Fam. Code Ann. § 102.003(a)(11) (Vernon 2008). The provision is sometimes referred to as "stepparent standing." Here, the parents are not deceased, so the subsection providing standing to someone who pleads that he has "resided" for at least six months with the parent and child is inapplicable.

Section 102.003(a)(9) of the Texas Family Code, the provision relied on by the petitioner, provides that "a person, other than a foster parent, who has had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition" may file an original suit requesting managing conservatorship. Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008). Petitioner did not plead that he had "actual care, control, and possession of the child." Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008). Nevertheless, if this is simply a pleading deficiency that can be corrected by amendment, he should be given that opportunity. We therefore turn to the substance of his standing argument under section 102.003(a)(9).

The Hearing

The trial court held an evidentiary hearing on relator's challenge to petitioner's standing to file the suit. Testifying on petitioner's behalf were the petitioner, his father and mother, and his sister-in-law. Petitioner, relator, and the child lived together from 2001 until 2008. Petitioner's father testified petitioner attended school functions involving L.G.C. and was normally responsible for picking up L.G.C. at daycare. Petitioner's mother testified L.G.C. typically spent Christmases at their family home until petitioner and relator ended their relationship. Petitioner's mother also indicated she had observed petitioner give L.G.C. a bath, saw petitioner at school functions for L.G.C., observed petitioner discipline L.G.C., and heard relator ask petitioner to discipline the child. Petitioner's mother also testified he provided financial support for L.G.C. and bought school clothes for him. Petitioner's sister-in-law testified that whenever she saw petitioner, L.G.C., and relator together, petitioner normally disciplined the child. Both relator and petitioner waited on the child -- giving him food or other items. L.G.C. called relator "Mom" and petitioner "Daddy." The sister-in-law testified both parties provided financial support for L.G.C. in the last seven years and petitioner provided more discipline for L.G.C. than did relator. Both provided comfort to the child when he was hurt, and petitioner provided guidance and support to the child. Petitioner's sister-in-law indicated that he gave L.G.C. any needed medicine. When L.G.C. was in the hospital, both relator and petitioner were there. The sister-in-law also indicated she had done some of these same things for L.G.C. herself, including providing guidance and support, keeping the child, and giving him medicine as needed.
Petitioner is not the biological or adoptive father of L.G.C. and is not otherwise related to L.G.C. Petitioner was never married to relator, the child's mother. He maintained a separate mailing address while living with relator. The record establishes that he did not possess any documents that allowed or authorized him to make any decisions relating to school, medical treatment, establishment of residence, or any other legal matters regarding the child. He is not the child's guardian. Although petitioner testified he wanted to adopt L.G.C. and had an attorney draw up papers for that purpose, relator refused to sign any adoption papers or agree to any adoption. There is no evidence relator ever agreed to relinquish legal rights concerning the child. The evidence establishes the contrary. Relator refused to give petitioner legal rights concerning the child.

Analysis

The interest of parents in the "care, custody, and control" of their children "is perhaps the oldest of the fundamental liberty interests" recognized by the United States Supreme Court. Troxel v. Granville, 530 U.S. 57, 65, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000)). (2) Furthermore, this State has long recognized that the "natural right which exists between parents and their children is one of constitutional dimensions." See Wiley v. Spratlan, 543 S.W.2d 349, 352 (Tex. 1976); see also Holick v. Smith, 685 S.W.2d 18, 20 (Tex. 1985); In re Pensom, 126 S.W.3d 251, 254 (Tex. App.--San Antonio 2003, orig. proceeding). Troxel involved grandparents seeking expanded visitation rights. The instant case concerns standing in an original suit affecting the parent-child relationship filed by a non-parent seeking custodial and visitation rights. As the United States Supreme Court explained in Troxel, "[S]o 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 to further question the ability of that parent to make the best decisions concerning the rearing of that parent's children." Troxel, 530 U.S. at 68-69 (citing Reno v. Flores, 507 U.S. 292, 304, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993)).

Texas statutes are intended by the Legislature to be in compliance with the Constitutions of this State and the United States. See Tex. Gov't Code Ann. § 311.021(1)(Vernon 2005). (3) A court construes a statute to give effect to the Legislature's intent as expressed in the actual language used in the statute. See Osterberg v. Peca, 12 S.W.3d 31, 38 (Tex. 2000); see generally In re Pensom, 126 S.W.3d at 255-56.

Section 102.003(a)(9), the provision petitioner relies on in his appellate brief, requires that the petitioner have "actual care, control, and possession of the child." In construing a statute, we must presume each word was used for a purpose, and give the word effect if reasonable and possible. See Tex. Workers' Comp. Ins. Fund v. Del Indus., Inc., 35 S.W.3d 591, 593 (Tex. 2000). In this statute, "control" must mean something more than the control implicit in having care and possession of the child if the word is to be given effect and treated as more than surplusage. The word must be understood in the context of the rights, duties, and responsibilities of a parent. See generally Coons-Andersen v. Andersen, 104 S.W.3d 630, 634-36 (Tex. App.--Dallas, no pet.) ("a person who assumes the duties of a parent"). "Control" refers to the power or authority to guide and manage, and includes the authority to make decisions of legal significance for the child. See generally In re Kelso, 266 S.W.3d 586, 589-92 (Tex. App.--Fort Worth 2008, orig. proceeding) (Evidence did not show parent relinquished permanent care, control, and possession of child to grandparents.). See generally In re Narvaiz, 193 S.W.3d 695, 700 (Tex. App.--Beaumont 2006, orig. proceeding) (considering the terms "care, control and possession" in another provision of the Family Code). The statute does not require that the person asserting standing demonstrate he had exclusive control of the child. Until he obtained the temporary orders at issue here, however, petitioner had no legal right of control over the child and no authority to make decisions on behalf of the child.

After petitioner's standing was challenged in the trial court, he did not amend his petition to allege in his pleadings that he had actual care, control, and possession of the child, though he argued the statute should be construed to grant him standing. Petitioner resided with L.G.C. and relator for more than six months as he alleged, but that fact alone is insufficient to establish standing. As the child's parent, relator had the right to have physical possession of the child and designate the child's residence. See Tex. Fam. Code Ann. § 151.001(a)(1) (Vernon 2008). Relator had the "duty of care, control, protection, and reasonable discipline of the child[.]" See id. § 151.001(a)(2) (Vernon 2008). The Texas Family Code recognizes relator had the right to make decisions of legal significance for the child, and to make decisions concerning the child's education. See id. § 151.001(a)(7), (10), (11) (Vernon 2008). Relator lived with the child, adequately cared for the child, and did not relinquish to petitioner or abdicate her parental rights, duties, and responsibilities. See In re M.J.G., 248 S.W.3d 753, 757-58 (Tex. App.--Fort Worth 2008, no pet.); see also In re Kelso, 266 S.W.3d at 590-91 (the mother controlled where the child would stay and for how long; the grandmother and step-grandfather did not have such control). We reject a construction of the statute that would expand section 102.003(a)(9) beyond the plain meaning of the terms used by the Legislature. See In re Narvaiz, 193 S.W.3d at 700.

In M.J.G., the appellate court held that grandparents who alleged "M.J.G. had lived with them since she was born[,] with the exception of one two-week period when she stayed with her parents in another town[,]" nevertheless lacked standing under § 102.003(a)(9). See In re M.J.G., 248 S.W.3d at 757-58. Even though M.J.G. and her brother lived with the grandparents and the grandparents performed day-to-day caretaking duties for the children, the children's parents were also living with the children in the home, and there was no evidence that the parents did not care for the children or that the parents had abdicated their parental duties and responsibilities to the grandparents. See id.

We follow the holding in M.J.G. as it appears consistent with the meaning of the language used by the Legislature in section 102.003(a)(9), the constitutional liberty interests retained by a fit parent adequately caring for her child, and also with the statutory scheme for standing set forth in the Family Code. Section 102.003(11) provides for standing in the event of the parent's death and is inapplicable here. See Tex. Fam. Code Ann. § 102.003(a)(11) (Vernon 2008) ("a person with whom the child and the child's . . . parent have resided for at least six months . . . ."). Under section 102.004(a), a person within the third degree of consanguinity would have standing if "the child's present circumstances would significantly impair the child's physical health or emotional development; or . . . both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit." See Tex. Fam. Code Ann. § 102.004(a) (Vernon 2008). Petitioner is not a relative of the child related within the third degree of consanguinity, so he could not proceed under section 102.004(a). Section 102.004(b) provides further that the court may grant "a grandparent or other person" deemed to have had substantial past contact with the child leave to intervene in a pending suit "if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development." Tex. Fam. Code Ann. § 102.004(b) (Vernon 2008). Petitioner did not intervene in any pending suit, and no evidence in this case indicates the child's health or emotional development is impaired by the child's circumstances or parent. Section 102.004(b) expressly provides that "[a]n original suit requesting possessory conservatorship may not be filed by a grandparent or other person." We doubt the Legislature would have intended section 102.003(a)(9) to permit an "end run" around specific restrictions in the Code. See In re Derzapf, 219 S.W.3d at 332. It does not appear the Legislature intended to convey standing under the circumstances presented here.

Petitioner also refers the Court to the "in loco parentis" doctrine. The phrase means "in the place of a parent," and "refers to a relationship a person assumes toward a child not his or her own." Coons-Andersen, 104 S.W.3d at 634-35. The relationship generally occurs only when a parent is unwilling or unable to care for the child. See id. at 635. As stated in Coons-Andersen, "Texas courts have never applied the common law doctrine of in loco parentis to grant custodial or visitation rights to a non-parent, against the parent's wishes, when the parent maintains actual custody of the child." Id. at 635. The doctrine is inapplicable here. See id. at 636 (Section 102.003(a)(9) "is in complete harmony" with, and "actually embraces," the doctrine of in loco parentis.).

Conclusion

Petitioner did not plead or prove standing under section 102.003(a)(9) to file this action. See In re M.J.G., 248 S.W.3d at 757-58. By incorrectly applying the law on standing, the trial court abused its discretion. Relator has no adequate remedy by appeal. The petition for writ of mandamus is conditionally granted. The trial court shall vacate its orders signed on July 1, 2008, and July 14, 2008. We are confident the trial court will comply with this opinion. A writ will issue only if the trial court fails to comply.

WRIT CONDITIONALLY GRANTED.
____________________________
DAVID GAULTNEY
Justice
Submitted on May 28, 2009
Opinion Delivered July 16, 2009
Before McKeithen, C.J., Gaultney and Horton, JJ.

In Re KKC (Tex.App.- Beaumont, Jul. 16, 2009)(order granting nonparent conservatorship reversed by mandamus)
MOTION OR WRIT GRANTED: Opinion by Justice Gaultney, Dissenting Opinion by Chief Justice McKeithen Before Chief Justice McKeithen, Justices Gaultney and Horton
09-09-00131-CV In Re K.K.C.
Appeal from 356th District Court of Hardin County

FOOTNOTES:

1. Exceptions are found in section 102.0035 (statement to confer standing to a prospective adoptive parent) and section 102.004(a) (consent to suit by relative of the child related within the third degree of consanguinity). See Tex. Fam. Code Ann. §§ 102.0035, 102.004(a) (Vernon 2008).

2. Standing was among the factors considered by the Supreme Court in Troxel. See Troxel, 530 U.S. at 67, 72; see In re Derzapf, 219 S.W.3d at 331 n.7.3. The dissent makes the assertion that he does not believe the statute is unconstitutional. To be clear, we do not make that holding. Our disagreement with the dissent appears to be over the construction of the statute, and concerns the adequacy of the pleading and evidence.

Also see DISSENTING OPINION BY THE CHIEF JUSTICE OF THIS APPELLATE COURT

In the Interest of M.K.S.-V, a Child (Tex.App.- Dallas 2009)

NON-PARENTS & STANDING TO BRING SAPCR SUIT

Nonbiological Co-Parent's Bid for Conservatorship or Adoption in Two-Mommies Case Fails

A recent opinion of the Dallas Court of Appeals addresses the issues of standing of a nonparent in a same-sex relationship context, and affirms the trial court's dismissal of a suit for conservatorship and/or adoption by a former domestic partner of the natural mother, who had conceived the child at issue in the SAPCR/adoption litigation by artificial insemination.

The lengthy opinion is instructive as to the law as it is -- or may be -- applied to any non-parent seeking visitation or custody of a child they have helped care for, invoking past contact as a basis for standing. Although standing is a jurisdictional doctrine, the facts in a particular case are still highly relevant in the determination of whether the Family Code's standing criteria have been satisfied. The result of the inquiry into a nonparent's standing is hardly a foregone conclusion. Different courts may reach different conclusions. Here, the appellate panel agrees with the trial court that the case was properly dismissed because the petitioner did not meet the standing criteria defined by the Texas Family Code . [The sections of the appellate opinion addressing visitation denial as a breach of possession agreement and rejecting the coparent adoption claim are placed in separate posts.]

OPINION BY JUSTICE RICHTER

This is an appeal from the dismissal of K.V.'s suit for conservatorship or adoption of M.K.S, [See Footnote 1] a child born in May 2004 to K.V.'s ex-partner T.S.

In four issues, K.V. asks us to decide whether (a) her possession of M.K.S. over a twenty-one month period under an informal agreement somewhat similar to the Standard Possession Order found in section 153.312 of the Texas Family Code constituted “actual care, control, and possession of the child for at least six months” as provided in family code section 102.003(a)(9) for purposes of standing to sue for conservatorship; and (b) the dismissal, without a hearing on the merits, of her claims for breach of the possession agreement, adoption, and equitable adoption by estoppel was improper.

We answer both in the negative and affirm the trial court's “final judgment dismissing suit.”

Background

K.V. and T.S. met in the fall of 1997 and began living together in late 1998. The two talked about having a child together and in mid-2003, after the two had received counseling, T.S. became pregnant with M.K.S. through artificial insemination by a sperm donor. T.S. delivered M.K.S. on May 21, 2004 and co-parented M.K.S. with K.V. until August 3, 2005 when the relationship ended and T.S. moved out with M.K.S. Wanting to keep “some sort of continuity for [M.K.S.],” T.S. agreed M.K.S. could visit K.V. regularly and set up a schedule. Under the agreement, M.K.S. would visit K.V. overnight once a week, alternate Sunday afternoons, alternate weekends beginning on Friday afternoons during the school year and Thursday afternoons “at times” in the summer, and “some holidays.” [See Footnote 2] This schedule began August 5, 2005 and continued until April 25, 2007 when T.S. discontinued the visits because K.V. had accessed M.K.S.'s school record against T.S.'s “directive.” The following month, K.V. filed suit seeking to be appointed joint managing conservator of M.K.S. or, in the alternative, to adopt her.

Not being a biological parent of M.K.S., K.V. asserted standing to sue for conservatorship under section 102.003 (a)(9)-as a person who had “actual care, control, and possession of [M.K.S.] for at least six months ending not more than 90 days preceding the date of the filing of the petition.” Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008).

She asserted she was a “parent by estoppel” and had standing to sue for adoption under family code section 102.005(3)-as a person who had “actual possession and control of the child for not less than two months during the three-month period preceding the filing of the petition.” Id. § 102.005(3).

T.S. specially excepted to K.V.'s claims and challenged K.V.'s allegations concerning standing. Following an evidentiary hearing before the associate judge on the issue of standing and an appeal to the trial court, the trial court found K.V. did not have standing to pursue her suit for conservatorship but had standing to pursue the adoption. The trial court found K.V. had standing to pursue the adoption not under section 102.005(3), but under section 102.005(5)-having had “substantial past contact with the child sufficient to warrant standing to do so.” [See Footnote 3] Id. § 102.005(5).

Based on its findings, the trial court ordered K.V. to amend her petition to assert adoption only. See id. § 102.001(b). K.V. complied, asserting standing under section 102.005(5) and claims for (1) adoption under family code section 162.001, (2) adoption by estoppel, and (3) breach of contract based on an alleged agreement by T.S. that K.V. would be able to adopt M.K.S. K.V. also asserted T.S. breached a contract, as shown by the possession agreement, that K.V. would have possession of and access to M.K.S. T.S. subsequently moved to dismiss K.V.'s adoption claims, arguing T.S.'s parental rights had not been and would not be terminated, K.V. had never married T.S. and was not a step-parent, and T.S. would not consent and had not consented to the adoption.

T.S. also moved to dismiss K.V.'s claim for the breach of the possession agreement, arguing it amounted to a conservatorship claim for which K.V. lacked standing. See generally Tex. Fam. Code Ann. ch. 153 (providing for possession of or access to a child only to conservators of the child); see also In re P.D.M., 117 S.W.3d 453, 455 (Tex. App.-Fort Worth 2003, pet. denied) (en banc) (noting party's initial right to possession of a child is governed by family code chapter 153). Following a hearing on the motion, the trial court dismissed “all claims” asserted by K.V. and “confirm[ed] the previous finding that [K.V.] lacks standing to pursue her . . . claims for conservatorship.”

Standing

A person seeking conservatorship of a child must have standing to bring suit. See In re S.S.J.-J., 153 S.W.3d 132, 134 (Tex. App.-San Antonio 2004, no pet.).

A component of subject matter jurisdiction-which is a court's power to hear a case, standing is a constitutional prerequisite to maintaining a lawsuit under Texas law and focuses on who is entitled to bring an action. See Tex. Ass'n 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.).

Standing exists by operation of law and cannot be conferred by waiver or estoppel. In re H.G., 267 S.W.3d 120, 124 (Tex. App.-San Antonio 2008, pet. denied) (op. on reh'g). Subject to two exceptions in the context of suits affecting the parent- child relationship (SAPCR), standing also cannot be conferred by consent. [See Footnote 4] In re K.K.C., No. 09-09- 00131-CV, 2009 WL 2045331, *1 n.1 (Tex. App.-Beaumont July 16, 2009, no pet. h.); H.G., 267 S.W.3d at 124.

In Texas, standing in the context of SAPCRs is governed by the family code, and a party seeking relief in such suits must plead and establish standing within the parameters of the language used in the code. See H.G., 267 S.W.3d at 124; see also Tex. Fam. Code Ann. §§ 102.003-.007. If a party fails to do so, the trial court must dismiss the suit. See In re C.M.C, 192 S.W.3d 866, 870 (Tex. App.-Texarkana 2006, no pet.).

We review de novo a trial court's dismissal based on lack of standing. See Coons-Andersen v. Andersen, 104 S.W.3d 630, 633-34 (Tex. App.-Dallas 2003, no pet.); Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex. App.-El Paso 2002, no pet.). Section 102.003(a)(9)

To establish “actual care, control, and possession” as required by section 102.003(a)(9), the section under which K.V. asserts standing, the party must demonstrate (i) more than temporary or occasional possession, though it need not be exclusive, and (ii) more than the control “implicit in having care and possession of the child.” See K.K.C., 2009 WL 2045331, *3 (control); In re M.J.G., 248 S.W.3d 753, 758-59 (Tex. App.-Fort Worth 2008, no pet.) (control); Coons-Andersen, 104 S.W.3d at 634 (possession or access).

To establish the six-month requirement of “actual care, control, and possession of the child” as required by section 102.003(a)(9), the party must demonstrate the child “principally resided” with him, though the residency of the child with the party need not be continuous and uninterrupted. See Tex. Fam. Code Ann. § 102.003(b); M.P.B., 257 S.W.3d at 808; Doncer, 81 S.W.3d at 362. Visitation in accordance with the Standard Possession Order found in section 153.312 of the family code may satisfy the standing requirement. See Doncer, 81 S.W.3d at 362.

Whether a party satisfies the standing requirement under section 102.003(a)(9) is necessarily fact specific and determined on a case-by-case basis. M.P.B., 257 S.W.2d at 809.

In her first issue, K.V. challenges the court's “confirmation” that she lacked standing to sue for conservatorship. She makes two arguments. First, relying on M.P.B., 257 S.W.3d 804, and Doncer, 81 S.W.3d 349, she maintains she satisfied the standing requirement by virtue of her weekly overnight possessions of M.K.S. and possessions on “some holidays,” alternate weekends, and alternate Sundays. See Footnote 5 Second, and in the alternative, she argues T.S. is estopped to assert standing as a bar to this suit because of T.S.'s “actions and explicit representations to K.V. . . . including the stipulated possession agreement.”

In Doncer, a step-mother-Doncer-sought conservatorship of her six-year old step-son Mickey, after her husband-Mickey's father-passed away. Doncer, 81 S.W.3d at 351. Doncer's deceased husband and his ex-wife Dickerson were joint managing conservators of Mickey. Id. Mickey's primary residence was with Dickerson, but Doncer's deceased husband had Mickey “51 percent of the time in even-numbered years and nearly 48 percent of the time in odd-numbered years” under the conservatorship agreement which awarded him slightly more periods of possession than the standard possession order. [See Footnote 6] Id. at 351, 352. Comparing the term “principal residence” as used in the determination of the six-month possession requirement in section 102.003(a)(9) with the term “primary residence” “as defined in a joint managing conservatorship” in connection with whom the child lives once conservators have been appointed, the court concluded the term “principal residence” means a “fixed place of abode, occupied consistently over a substantial period of time, which is permanent rather than temporary.” Id. at 359-61. The court further concluded Doncer had standing to sue, having established her home was Mickey's principal residence for a period of at least six months before she filed suit. Id. at 362. By virtue of the conservatorship agreement, the court reasoned, Doncer's deceased husband and Dickerson had “intended Mickey to occupy the Doncer home consistently, over a substantial period of time” and not as a “temporary arrangement to facilitate momentary housing difficulties, inconvenient travel schedules, the pursuit of higher education, or the inability to provide child care.” Id.

In M.P.B., a grandmother sought joint managing conservatorship of her granddaughter, twenty-one-month old M.P.B., following the death of M.P.B.'s mother. M.P.B., 257 S.W.3d at 807. M.P.B. and her mother had lived with the grandmother for three months before moving to a nearby apartment. Id. at 809. Then, over the next seventeen months, M.P.B. spent every Wednesday night, every weekend beginning “sometimes” on Thursdays and “sometimes” on Fridays, holidays, and vacations at the grandmother's house. Id. Although grandmother shared actual care, control, and possession of M.P.B. with the granddaughter's mother, a panel of this Court concluded that the grandmother had standing under section 102.003(a)(9) to seek appointment as joint managing conservator of M.P.B. because she provided M.P.B. a permanent rather than temporary residence which the granddaughter occupied consistently over a substantial period of time. Id. Borrowing language from Doncer and M.P.B., K.V. argues her home was a “principal residence” of M.K.S. because it was “a fixed place of abode” M.K.S. occupied consistently and in a permanent fashion, in accordance with the possession agreement. Noting the Doncer court considered the conservatorship agreement, providing for slightly more visitation than the standard possession order, between Doncer's deceased husband and Dickerson as evidence of an intent that the child occupy the Doncer home consistently, K.V. points out that the possession agreement she had with T.S. was similar also to the standard possession order and evinced an intent that M.K.S. occupy K.V.'s home consistently over a substantial period of time. An intent that M.K.S. occupy K.V.'s home consistently over a substantial period of time alone, however, establishes only the six- month requirement of section 102.003(a)(9). See Tex. Fam. Code Ann. § 102.003(b).

To establish standing, K.V. also had to establish she exercised more than the control implicit in having care and possession of the child. See K.K.C., 2009 WL 2045331 *3. Although the “possession agreement” shared characteristics of a standard possession order, see Tex. Fam. Code Ann. §153.312, nothing in the record shows it was accompanied by the rights a parent conservator enjoys “at all times,” see id. §153.073, or that T.S. relinquished or shared any of her rights as a parent, see id. § 151.001(a). Other than testimony showing K.V. attended school activities and the staff at M.K.S.'s school knew K.V. would pick M.K.S. up on the days designated for possession, the record does not show K.V. had the right to confer with T.S. before T.S. made any decisions concerning M.K.S.'s health, education, and welfare; had access to M.K.S.'s medical and educational records; or could consult with school officials or with medical personnel. In fact, the record reflects T.S. discontinued the visits after K.V. accessed M.K.S.'s school records against T.S.'s directives and moved M.K.S. to another school without consulting or even informing K.V. The record further reflects T.S. asked K.V. to stop paying for M.K.S.'s school and that she “made all [M.K.S.'s] decisions.”

Based on the record, we reject K.V.'s argument that she established by virtue of her possession agreement that she had standing to sue for conservatorship. [See Footnote 7] See K.K.C., 2009 WL 2045331, *2- 4 (mother's friend, who had lived with mother and child for over six months, cared for child, bathed child, attended school functions, supported child, disciplined child, comforted child, and picked child up from day care almost daily, lacked standing to sue for conservatorship where mother adequately cared for child, lived with child, and did not relinquish her parental rights, duties, and responsibilities); In re Kelso, 266 S.W.3d 586, 590-91 (Tex. App.-Fort Worth 2008, no pet.) (grandparents lacked standing to sue for conservatorship of grand child who lived primarily with them where evidence showed mother determined when child would come home or visit).

We also reject K.V.'s argument that T.S. is estopped from asserting standing as a bar to the conservatorship claim. As stated, standing cannot be conferred by estoppel. H.G., 267 S.W.3d at 124. We resolve K.V.'s first and second issues against her.

Dismissal of Other Claims

[Section on Claim for Breach of the Possession Agreement omitted; click link]

[Section discussing and rejecting former domestic partner's Adoption Claims omitted; click link]

We affirm the trial court's “final judgment dismissing suit.”

MARTIN RICHTER
JUSTICE

Footnote 1 M.K.S.'s name at birth was M.K.S.-V. Although her name was legally changed to M.K.S. prior to the filing of this suit, the judgment of dismissal is captioned “In the Interest of M.K.S.-V.”

Footnote 2 The record contains testimony that K.V. and T.S. “divided major holidays” as well as testimony that K.V. had M.K.S. only on holidays that “happened to fall” during K.V.'s period of visitation.

Footnote 3 This section was formerly section 102.005(4). See Act of Mar. 21, 1995, 74th Leg., R.S., ch. 20, §1, sec.102.005(4), 1995 Tex. Gen. Laws 113, 125. The redesignation became effective September 1, 2007. See Act of June 15, 2007, 80th leg., R.S., ch. 1406, §3, 2007 Tex. Gen. Laws 4814, 4815. Having filed her suit before the effective date, K.V.'s petition is governed by the former law. Id. §3(b). Because the change is simply one of renumbering, however, we refer to the current code section.

Footnote 4 The exceptions, neither of which apply in this case, are found in sections 102.0035 and 102.004(a)(2) of the family code. See In re K.K.C., No. 09-09-00131-CV, 2009 WL 2045331, *1 n.1 (Tex. App.-Beaumont July 16, 2009, no pet. h.) (citing to Texas Family Code sections 102.0035 and 102.004(a)). Under section 102.0035, a parent or expectant mother can confer standing to a prospective adoptive parent. See Tex. Fam. Code Ann. § 102.0035. Under section 102.004(a)(2), a parent can also consent to a suit by a grandparent or relative of the child related within the third degree by consanguinity. Id. § 102.004(a)(2).

Footnote 5 K.V. does not challenge the court's implicit finding that she lacked standing under section 102.005(3)-as a person having “actual possession and control of the child for not less than two months during the three month period preceding the filing of the petition.”

Footnote 6 Rather than ending on Sunday, Mickey's visits with his father ended Wednesday morning. Cf. Tex. Fam. Code Ann. § 153.312.

Footnote 7 We recognize that neither Doncer nor M.P.B. discuss the “actual care, control, and possession” requirement of section 102.003(a)(9). The Doncer court, however, noted no limitations in Doncer's husband's rights as a parent conservator or his rights during periods of possession. See Doncer, 81 S.W.3d 351-53; see also Tex. Fam. Code Ann. §§153.073, 153.074. And, the M.P.B. court noted the grandmother testified she was “significantly involved in 'raising' M.P.B. . . . and was 'as much a primary caregiver, if not more' than [m]other.” M.P.B., 257 S.W.3d at 809.

SOURCE: Opinion of the Dallas Court of Appeals in Appellate Cause No. 05-08-00568-CV (8/31/09)

PARENTAL PREFERENCE: A fundamental policy grounded in constitutional and statutory law

PREFERENCE FOR PARENTS TO RAISE THEIR CHILDREN MEANS THAT BEST-INTEREST FACTORS ALONE DO NOT JUSTIFY TRANSFERRING PARENTAL RIGHTS TO NON-PARENTS.

As a matter of fundamental principle, the law recognizes that parents have the right to raise their own children, and thus favors giving preference to parents over non-parents in case of a dispute. Non-parents must thus meet a higher standard than merely showing that they would do a better job caring for the kids, or that their appointment as managing conservators by the court would serve the best interest of the child. As a general proposition the law presumes that children are best off being raised by their own parents and that the parents are up to the task. A nonparent would have the burden to show otherwise.

Because of this presumption, the relevant question in a dispute between parents and nonparents is not Who can best care for these kids? Instead, the question is: Is there anything seriously wrong with the parents and the job they are doing raising these kids? Do the children suffer abuse, neglect, or some other harm or risk of harm for which the parents are responsible?

In addition, any person claiming an interest in the child's well-being and seeking right of access or custody of the child in court must have legal standing to do so, a topic covered elsewhere on this blog.

Statutory law and case law define the standard a nonparent has to meet (assuming the nonparent has standing) to overcome the parental preference (also referred to as parental presumption) with greater specificity.

Legal Standard for Nonparent Custody ("managing conservatorship” in Texas)

Family Code section 153.131(a) provides for the appointment of the parent as sole managing conservator or the parents as joint managing conservators, unless the court finds the appointment would not be in the best interest of the child because it would significantly impair the child’s physical health or emotional development. Tex. Fam. Code Ann. § 153.131(a) (Vernon 2002).

For the court to award managing conservatorship to a non-parent under section 153.131, the non-parent must prove by a preponderance of credible evidence that appointing the parent as a managing conservator would result in serious physical or emotional harm to the child. Whitworth v. Whitworth, 222 S.W.3d 616, 623 (Tex. App.—Houston [1st Dist.] 2007, no pet.).

Evidence must be presented to support the logical inference that some specific, identifiable behavior or conduct of the parent will probably cause that harm. Id. This link between the parent’s conduct and harm to the child may not be based on evidence that merely raises a surmise or speculation of possible harm. Id. When a non-parent and a parent are both seeking managing conservatorship, “close calls” go to the parent. Id.

An adult’s future conduct may be somewhat determined by recent past conduct. In and of itself, however, evidence of past misconduct may not be sufficient to show present unfitness. Id. Further, it is wholly inadequate simply to present evidence that a non-parent would be a better choice as custodian of the child. Id. (citing Lewelling v. Lewelling, 796 S.W.2d 164, 167 (Tex. 1990)). The non-parent must offer evidence of specific acts or omissions of the parent that demonstrate an award of custody to the parent would result in physical or emotional harm to the child. Id. Specific acts or omissions of a parent implicating a significant impairment to a child’s emotional development may be inferred from direct evidence. Id.

SOURCE: Appellate Opinion of the First Court of Appeals in No. 01-07-00571-CV

Taylor v. Taylor, 254 S.W.3d 527 (Tex.App.- Houston [1st Dist.] March 20, 2009)