Showing posts with label standing. Show all posts
Showing posts with label standing. Show all posts
Tuesday, October 6, 2009
Appointment of Grandparents as Possessory Conservators Undone on Appeal
Austin Court of Appeals reverses order granting grandparents visitation rights to grandchildren after death of their son, the father of the children. Mother's right to be free from interference vindicated where mother was a fit parent and where circumstances of the children weren't such as to provide standing to paternal grandparents to sue for conservatorship.
M E M O R A N D U M O P I N I O N
Appellees Larry and Maggie Svoboda filed a petition for grandparent possession and access and sought to be named managing conservators of L.R.S., L.K.S., and C.T.S., the children of their son Kevin Svoboda, who is deceased, and appellant Rebecca Svoboda.
The trial court ordered that Larry and Maggie be awarded possession of the children for specified periods during the Christmas, spring break, and summer holidays and appointed Larry and Maggie as possessory conservators of the children "during their court-ordered periods of possession." Rebecca appeals, arguing that the trial court abused its discretion in naming Larry and Maggie possessory conservators and in granting Larry and Maggie's petition for grandparent access.
We reverse and dismiss in part and reverse and render in part.
BACKGROUND
Kevin and Rebecca were married in 1990. During their marriage, they had three children, L.R.S., L.K.S., and C.T.S. At the time of Kevin's death in 2007, the children were aged eight, five, and three. On July 21, 2008, Kevin's parents, Larry and Maggie, filed their original petition seeking to be named sole managing conservators of the children based on their belief that Rebecca's care of the children subjected them to an environment that presented a serious risk to their physical health and emotional well-being. In the alternative, Larry and Maggie sought grandparent access for visitation, arguing that denying them access to the children would significantly impair the children's physical health and emotional well-being.
The trial court held a hearing on February 25, 2009. During the first part of the hearing, the trial court heard testimony concerning the issue of Larry and Maggie's standing to bring an original suit to be named managing conservators of the children. See Tex. Fam. Code Ann. § 102.004(a)(1) (providing that grandparents may file original suit requesting managing conservatorship if they produce satisfactory proof that order requested is necessary because child's present circumstances would significantly impair child's physical health or emotional development).
Maggie testified that although she and her husband live in North Dakota, a great distance from Rebecca and her children in Mills County, they had always been involved in the children's lives and had a close relationship with them.
She stated that she and Larry made frequent visits to Texas to help Kevin and Rebecca when they were moving and making home repairs, particularly after Kevin was diagnosed with cancer, and that they helped Rebecca financially after Kevin died. Maggie testified that she believed she was being forced out of the children's lives in a way that was damaging to the children and that preventing her from having access to the children would impair their emotional and physical development.
She further testified that she had concerns about L.R.S. regarding a possible but unsubstantiated incident of sexual abuse by a male child at her daycare. Maggie stated that she had been given no information regarding the incident, but she worried that the environment L.R.S. is in may be dangerous because L.R.S. might not be receiving counseling and might "never be mentally coping in the world."
She explained that she had no way of knowing whether L.R.S. was receiving the therapy she needed. She further stated that Rebecca had cut off her home telephone line and did not stay in frequent contact with her and Larry.
Asked about the event that precipitated their filing the petition for conservatorship, Maggie explained that in March 2008 she and Larry traveled to Texas and attempted to see the children. She recounted that Rebecca refused to let them see the children unless they signed "a paper" stating that they agreed not to medicate the children or remove them from Brown or Mills County. Maggie testified that she did not sign the paper because Rebecca's own parents had not been required to do so and because she felt that, by signing it, she would be admitting guilt for having overmedicated the children in the past.
Maggie also testified about the children's performance in school. She stated that she believed L.R.S. had been diagnosed with dyslexia and that both L.R.S. and L.K.S. had been held back a year in school. Asked whether she thought not passing in school reflected something about their environment that may be endangering the children's emotional and physical development, Maggie answered:
Yes, I do. I don't believe they are getting the rest they should have. They have to get up way too early in the morning. They don't get their rest or the time to do the schoolwork that they need to do. [L.R.S.] has all of these chores that she has to do when she gets home and chores before she goes to school. And they have to get up at 5:00 in the morning in order--they had to get up at 5:00 in the morning in order for [Rebecca] to be at work at 8:00.
She stated that the children's teeth were not well taken care of and that often they did not have toothbrushes or they had to share toothbrushes. Finally, Maggie discussed the emotional support that she and her family would offer the children to help them deal with their father's death, noting that Rebecca did not want her or Larry to speak to the children about their father because she felt that it would upset them too much.
Larry testified, in very general terms, that he believed depriving the children of a relationship with him and Maggie would significantly impair the children's emotional and physical well-being. Larry and Maggie's son Shelley and daughter Petrina also testified, stating that Larry and Maggie had been an important part of the children's lives. They testified, also in very general terms, that they believed it would significantly impair the children's emotional well-being to deny them time with their paternal grandparents. On cross-examination, both Shelly and Petrina testified that Rebecca had never denied them access to the children and that they had always had a fairly good relationship with Rebecca.
At the close of this testimony, the trial court ruled on the standing issue, finding that Larry and Maggie had met the standing requirements of the Texas Family Code because they had shown by a preponderance of the evidence that denial of possession or access to the children would significantly impair the children's emotional well-being. The court further found, however, that there was no evidence that Rebecca was unfit as a mother or that the children were in any physical danger.
During the second portion of the hearing, the trial court heard evidence on the issues of conservatorship and possession. Rebecca testified extensively concerning her strained relationship with her in-laws, particularly Maggie, and about her efforts to ensure that Larry and Maggie's visits with her children conformed with how she and Kevin wished to raise their children.
She also discussed how the parties had struggled to agree to a visitation schedule after Kevin passed away and that she repeatedly avoided Larry and Maggie's requests to have the children visit them in North Dakota because she felt the children were not old enough to travel that far by themselves. Rebecca also described her version of the events that led to Larry and Maggie's filing their petition for conservatorship and access. She said that Larry and Maggie had traveled to Texas in March to see the children and a dispute arose when they refused Rebecca's request that they agree in writing to certain conditions that she and the family's grief counselor had determined were necessary for appropriate visitation to occur. The two subsequent visits were supervised at the Family Services Center. Larry and Maggie both acknowledged on cross-examination that unsupervised visits would have been possible if they had agreed to the guidelines that Rebecca had requested.
Rebecca also responded to Maggie's testimony that the children were performing poorly in school. She stated that L.R.S. had attention-deficit disorder, not dyslexia; that none of her children had been held back in school; and that all of the children had satisfactory report cards and were performing at or above their grade level. Rebecca further testified that she and her children were very involved in their church, had an "amazing" support system, and met weekly with a counselor for several months after Kevin passed away. Rebecca stated that the children had all been released from the counselor's care because of their progress. She testified that although she wanted her children to have a relationship with Kevin's family, she felt that she should be able to decide what visitation would be appropriate and what boundaries should be set. Rebecca acknowledged that although she had disconnected the telephone line at her house, Maggie and Larry could still contact her by e-mail and reach her and the children on her cell phone.
After both sides rested, the trial court ruled on the conservatorship issue. The court named Rebecca sole managing conservator and named Larry and Maggie possessory conservators during the times of their possession, beginning with a three-day visitation during the 2008 Christmas holiday. The court ordered that Larry and Maggie be granted all the privileges and powers of possessory conservators under the family code during their periods of possession, with the caveat that they could not give the children any medication without Rebecca's prior approval, except in an emergency.
This ruling was memorialized in the court's final written order, which granted Larry and Maggie possession of the children during each Christmas and spring break and for two weeks during the summer, as well as access through monthly telephone calls during every month in which no periods of possession were ordered. Rebecca appeals, arguing that the trial court erred in (1) naming Larry and Maggie possessory conservators, (2) determining that Larry and Maggie had standing to bring suit for conservatorship, (3) awarding Larry and Maggie court-ordered periods of possession and access, and (4) finding that Rebecca was a fit parent but then failing to apply the presumption that a fit parent acts in her child's best interest.
[section on applicable standard of review in appeal from grandparent custody, visitation and access decisions omitted]
DISCUSSION
In her first and second issues, Rebecca argues that Larry and Maggie lacked standing "to sue for custody--i.e., sole managing conservatorship, joint managing conservatorship, or possessory conservatorship," and that the trial court therefore erred in naming Larry and Maggie possessory conservators. Larry and Maggie sought by their original petition to be named sole managing conservators of the children. The trial court, after hearing the testimony of Larry and Maggie and their children, Shelley and Petrina, found that "the grandparents have shown and established by the preponderance of the evidence that that denial of possession or access to their grandchildren would significantly impair the grandchildren's emotional well-being." Accordingly, the court determined that Larry and Maggie had standing to file an original petition seeking managing conservatorship.
As an initial matter, we note that the trial judge's oral findings and written order both reflect that he ruled on the standing question under section 153.433 of the family code. Section 153.433, as will be discussed in connection with Rebecca's remaining issues on appeal, governs the circumstances under which grandparents may seek possession of or access to their grandchild contrary to the parent's wishes. See Tex. Fam. Code Ann. § 153.433 (requiring, among other elements, that grandparent prove by preponderance of evidence that denial of possession of or access to child would significantly impair child's physical health or emotional well-being).
A grandparent's standing to bring an original suit affecting the parent-child relationship, on the other hand, is governed by section 102.004(a) of the family code, which requires that the petitioner present satisfactory proof that "the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development." Id. § 102.004(a)(1).
Nonetheless, because it is clear from the context that the trial judge intended to make the requisite finding related to the standing issue, we will also treat the trial court's finding as one made under section 102.004--i.e., that Larry and Maggie had standing to bring the conservatorship suit because the children's present circumstances would significantly impair their emotional development. See id. § 102.004(a)(1).
We disagree with the trial court, however, that the evidence supports Larry and Maggie's standing to file an original suit seeking conservatorship of the children.
"[A] grandparent has standing to bring a suit affecting the parent-child relationship only in certain extreme circumstances." Von Behren v. Von Behren, 800 S.W.2d 919, 921 (Tex. App.--San Antonio 1990, writ denied). The legislature, recognizing the potential for disruption posed by the filing of an original suit for conservatorship, set a high burden for petitioners to meet in grandparent-initiated suits. See, e.g., Whitworth v. Whitworth, 222 S.W.3d 616, 622 (Tex. App.--Houston [1st Dist.] 2007, no pet.) (noting that "the statutory scheme assures that grandparents are not entitled to disrupt the child's family life and initiate suits for managing conservatorship except in limited circumstances); Harrison v. Harrison, 734 S.W.2d 737, 740-41 (Tex. App.--Eastland 1987, no writ) ("There is a significant difference between filing an original proceeding which could disrupt the children's relationship with their parents and intervening in a pending suit in which that relationship had been sufficiently interrupted to cause the filing of a suit requiring the courts to decide what decree would be in the children's best interest.").
In determining standing, we examine the children's "present circumstances" as of July 21, 2008, the date Larry and Maggie filed their petition. See In re Vogel, 261 S.W.3d 917, 922 (Tex. App.--Houston [14th Dist.] 2008, no pet.) (citing Texas Ass'n of Bus. v. Texas Air Control Bd., 852 S.W.2d 440, 446 n.9 (Tex. 1993)).
The trial court found that the children were not subject to any physical harm, and Larry and Maggie do not contest this finding. As to the children's emotional development, the record does not contain more than a scintilla of evidence that the children risked significantly impaired emotional development in their present circumstances. The children's "present circumstances" entailed residing with their mother, whom the trial court determined to be a loving and "fit" mother, and having limited contact with their paternal grandparents.
Although Larry and Maggie testified that they believed it was in the children's best interest for them to have contact with their late father's family and that depriving the children of a relationship with their paternal grandparents would be harmful to the children's emotional well-being, the record establishes that the children were not completely deprived of contact with their father's family. On the contrary, Maggie testified that she had access to the children by phone--including Rebecca's cell phone--and that, even after the dispute in March 2008, she and Larry were permitted to have supervised visitation with the children at the Family Services Center. Furthermore, Maggie acknowledged that if she had agreed to the conditions Rebecca sought to impose on her behavior, she would have been allowed unsupervised visitation. Shelley and Petrina, the children's paternal uncle and aunt, also testified that they had never been denied possession of or access to the children.
In addition, Maggie's statements that she was concerned whether the children, L.R.S. in particular, were receiving appropriate counseling and whether they were coping with their father's death are not evidence that the children's present circumstances posed a significant threat to their emotional development. Mere speculation that the children's emotional well-being might be at risk is not sufficient proof to confer standing under section 102.004(a). See Von Behren, 800 S.W.2d at 922-23 (grandmother's allegation that grandchild might have been sexually abused by her father was insufficient to confer standing).
On this record, we conclude that the trial court erred in determining that the children's present circumstances posed a significant danger to their emotional development. Compare In re M.J.G., 248 S.W.3d 753, 760 (Tex. App.--Fort Worth 2008, no pet.) (evidence of grandparents' significant relationship with grandchildren did not support standing under section 102.004(a) in light of absence of testimony that children's mother did not also perform parenting duties or that grandparent-grandchild relationship was so essential to children's well-being that they would be physically or emotionally harmed if they did not live with grandparents), with Vogel, 261 S.W.3d at 922 (grandparent had standing based on testimony that child's father was long-term alcoholic who could not financially provide for child's needs and that it would be "harmful" for child to live with his father), and In re R.D.Y., 51 S.W.3d 314, 318-19, 325 (Tex. App.--Houston [1st Dist.] 2001, pet. denied) (grandmother had standing under section 102.004 when record showed that mother physically abused child, was homeless and unemployed, did not feed or bathe child, and was involuntarily committed to psychiatric treatment facility). Accordingly, we hold that Larry and Maggie lacked standing to bring their original petition seeking to be named managing conservators of the children and that the trial court erred in naming Larry and Maggie possessory conservators.
We sustain Rebecca's first and second issues.
[See section discussing and reversing grant of access rights to paternal grandparents in separate blog post]
CONCLUSION
Having determined that Larry and Maggie lacked standing to file an original petition for conservatorship, we reverse the portion of the trial court's order naming them possessory conservators of the children and dismiss their petition for conservatorship for lack of jurisdiction. Further, because the trial court abused its discretion in awarding Larry and Maggie possession of and access to the children, we reverse the remainder of the trial court's order and render judgment denying their petition for possession and access.
J. Woodfin Jones, Chief Justice
Filed: October 1, 2009
SOURCE: Austin Court of Appeals' opinion in Cause No. 03-09-00189-CV (10/1/09) [footnotes omitted]
Wednesday, September 30, 2009
Judges at odds over nonbiological "de facto" parent's standing to assert custody and visitation claims
Judges do not see eye to eye when it comes to whether individuals who have assumed the role of a parent for a child that is not theirs can satisfy the standing requirement of the Texas Family Code, and qualify to be appointed possessory or managing conservators of the child.
The diversity of viewpoints is illustrated by the opinions written by Justices of the Beaumont Court of Appeals in a recent case in which the Mother wanted her former partner out of the picture after termination of the relationship.
The majority disagreed with the resolution of the issue in the court below and set aside the trial court judge's order appointing mother and her former live-in partner as joint managing conservators of the child they had been raising together. The Chief Justice, however, would have left the trial court's ruling undisturbed, and explained why in his dissent, the text of which is reproduced below.
DISSENTING OPINION BY CHIEF JUSTICE McKEITHEN
There is no dispute concerning the facts of this case. A man not biologically related to the child lived with and raised the child with the child's mother, from infancy to the child's grade-school years. The record shows the man nurtured, disciplined and financially supported the child.
The man lived with the child and the child's mother as a continuous and permanent family unit for a period of time far exceeding six months. He filed a suit affecting the parent-child relationship (SAPCR) within ninety days of separating from the child's mother.
The trial court found a sufficient factual basis to support the man's claim that he had "actual care, control, and possession" of the child for at least six months ending not more than ninety days preceding the date of the filing of the petition. See Tex. Fam. Code Ann. § 102.003(a)(9) (Vernon 2008).
The record supports that finding, yet the majority holds that this man has no standing to file a SAPCR pursuant to Section 102.003(a)(9) of the Texas Family Code because there has been no showing that the mother of the child "relinquished" the actual care, control, and possession of the child, or in some other way "abdicated" her parental responsibilities.
Family units ideally have two partners who share child-rearing responsibilities. Nothing in the plain language of Section 102.003(a)(9) excludes a person who shares the role of a parent with the biological parent from having standing as a person with "actual care, control, and possession" of the child. See id.
Nothing in the plain language of the statute necessitates the "relinquishment" or "abdication" by the biological parent of her parental rights, duties or responsibilities. There is no exclusivity requirement in the statute's plain language. See id.
There is, however, a rational basis for conferring standing on a person who shares actual care, control, and possession of a child with that child's parent for a period in excess of six months.
I do not believe a statute that merely confers standing on such a person is an unconstitutional infringement on the liberty interest of the parent who voluntarily shared care, control, and possession of the child for a period exceeding six months.
Because I cannot agree with the majority's interpretation of this statute, I respectfully dissent.
______________________________
STEVE McKEITHEN
Chief JusticeDissent Delivered
July 16, 2009
In Re KKC (Tex.App.- Beaumont, Jul. 16, 2009)(order granting nonparent conservatorship reversed by mandamus)
Thursday, September 10, 2009
Lack of Biological Mother's Consent Dooms Adoption Claim by Mother's Former Partner
Lesbian lover's bid to adopt child she helped care for fails in the absence of natural mother's consent. Termination of parental rights of the biological mother (who had child by artificial insemination) as a predicate for adoption was not an issue. Former partner's petition for visitation rights as de facto "co-parent" also fails on standing grounds.
FROM THE OPINION OF THE DALLAS COURT OF APPEALS IN 05-08-00568-CV
Adoption Claims
In her third and fourth issues, K.V. asserts the court erred in dismissing her claims for adoption without a hearing on the merits and after finding she had standing. As stated, T.S. moved to dismiss K.V.'s adoption claims on the ground, among others, that she would not consent and had not consented to the adoption.
Consent is a requirement, separate from standing, for adoption under family code section 162.001 and also for adoption by estoppel. See Tex. Fam. Code Ann. § 162.001; Luna v. Rodriguez, 906 S.W.2d 576, 579 (Tex. App.-Austin 1995, no writ) (agreement to adopt essential element of adoption by estoppel).
At the hearing on standing, T.S. denied consenting that K.V. could adopt M.K.S. Numerous other witnesses, many of whom testified on K.V.'s behalf, also testified they were unaware of any agreement to adopt. When asked for evidence of any agreement to adopt, K.V. testified about acts by T.S. that showed, in K.V.'s opinion, an agreement to adopt. Such acts included naming M.K.S. at birth M.K.S.-V. so that M.K.S. would share K.V.'s name; holding K.V. out as M.K.S.'s mom; and, “talking about [K.V.] adopting [M.K.S.]. But K.V. stopped short of testifying to an actual agreement.
Without consent or an agreement, however, K.V. cannot adopt M.K.S. and the trial court did not err in dismissing her adoption claims. We resolve K.V.'s third and fourth issues against her.
We affirm the trial court's “final judgment dismissing suit.”
SOURCE: Opinion of the Fifth Court of Appeals (Dallas) in
IN RE M.K.S.-V., No. 05-08-00568-CV (Tex.App.- Dallas [5th Dist.] Aug. 31, 2009)
FROM THE OPINION OF THE DALLAS COURT OF APPEALS IN 05-08-00568-CV
Adoption Claims
In her third and fourth issues, K.V. asserts the court erred in dismissing her claims for adoption without a hearing on the merits and after finding she had standing. As stated, T.S. moved to dismiss K.V.'s adoption claims on the ground, among others, that she would not consent and had not consented to the adoption.
Consent is a requirement, separate from standing, for adoption under family code section 162.001 and also for adoption by estoppel. See Tex. Fam. Code Ann. § 162.001; Luna v. Rodriguez, 906 S.W.2d 576, 579 (Tex. App.-Austin 1995, no writ) (agreement to adopt essential element of adoption by estoppel).
At the hearing on standing, T.S. denied consenting that K.V. could adopt M.K.S. Numerous other witnesses, many of whom testified on K.V.'s behalf, also testified they were unaware of any agreement to adopt. When asked for evidence of any agreement to adopt, K.V. testified about acts by T.S. that showed, in K.V.'s opinion, an agreement to adopt. Such acts included naming M.K.S. at birth M.K.S.-V. so that M.K.S. would share K.V.'s name; holding K.V. out as M.K.S.'s mom; and, “talking about [K.V.] adopting [M.K.S.]. But K.V. stopped short of testifying to an actual agreement.
Without consent or an agreement, however, K.V. cannot adopt M.K.S. and the trial court did not err in dismissing her adoption claims. We resolve K.V.'s third and fourth issues against her.
We affirm the trial court's “final judgment dismissing suit.”
SOURCE: Opinion of the Fifth Court of Appeals (Dallas) in
IN RE M.K.S.-V., No. 05-08-00568-CV (Tex.App.- Dallas [5th Dist.] Aug. 31, 2009)
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)
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)
Friday, September 4, 2009
Suit for Clarification of Prior SAPRC Order / Divorce Decree: Who has standing to bring suit to clarify the original order?
RIGHT TO SEEK CLARIFICATION OF PRIOR ORDER DEPENDS ON PARTY STATUS AND STANDING
The Family Code allows a party to seek clarification of an order in prior suit affecting the parent-child relationship (SAPCR) when lack of clarity has become an issue and enforcement is impossible. But who is a party? In a recent case, the grandparents were not involved in the parent's original divorce action (as intervenors), but acquired access to the child in a subsequent SAPCR modification proceeding. The Dallas Court of Appeals found that the grandparents did not qualify as "parties" and thus had no standing to seek clarification of the divorce decree provision governing payment of college tuition.
From the opinion:
With respect to statutory standing, the family code provides that “[a] court may clarify an order rendered by the court in a [suit affecting the parent-child relationship] if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt.” Tex. Fam. Code Ann. § 157.421(a) (Vernon 2008).
Thus, it appears that only “a party” has standing to request clarification of an order in a suit affecting the parent-child relationship. So the question becomes whether Grandparents were “parties” within the meaning of section 157.421(a).
In construing a statute, we start with the plain and ordinary meaning of its words. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If its meaning is unambiguous, we generally enforce it according to its plain meaning. Id. Regardless of whether a statute is ambiguous, we may consider certain extrinsic matters in interpreting it, such as the object the legislature sought to attain, the common law or former statutory provisions, and the consequences of a particular construction. PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879, 882 (Tex. App.-Dallas 2007, no pet.).
“Party” has two ordinary meanings in the legal context: (1) a participant in a transaction, such as a party to a contract, or (2) one by or against whom a lawsuit is brought. Black's Law Dictionary 1154 (8th ed. 2004); accord Doe v. Roe, 600 S.W.2d 378, 379 (Tex. Civ. App.-Eastland 1980, writ ref'd n.r.e.) (“Texas courts have long held that a 'party' is one by or against whom a suit is brought while all others who may be incidentally or consequently affected [are] 'persons interested' but not parties.”).
We give the word “party” as used in section 157.421(a) its ordinary meaning and conclude that Grandparents do not qualify as “parties” under either definition of the word. First, they were not parties to the agreed divorce decree that they seek to have clarified. Second, nothing in our record indicates that they were parties to the litigation at the time the agreed divorce decree was signed by the trial court. It appears that they became parties only when they filed a “motion to modify in suit affecting the parent-child relationship,” which constituted a new cause of action and proceeding under the family code. See generally Tex. Fam. Code Ann. § 156.003 (requiring service of citation on all parties whose rights and duties may be affected by a suit for modification); id. § 156.004 (“The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter.”); Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex. App.-Austin 2002, no pet.) (“Under the Family Code's statutory scheme, the legislature designated a suit to modify a SAPCR as a new cause of action. . . . [T]he original decree remains final and a new final order results from the modification proceeding.”).
We conclude that section 157.421 confers standing to seek clarification only on persons that are parties to the order that is to be clarified or parties to the proceeding in which that order was signed. Grandparents do not allege that they satisfy either criterion, nor does anything in the record show that they satisfy them. Thus, we conclude that they did not have standing to seek clarification. We vacate the trial court's order insofar as it rules on their requests for clarification and dismiss this action as to them.
SOURCE: Appellate opinion in 05-07-01712-CV (decided 2/6/09) (Dallas Court of Appeals vacates the trial court's order on the motion for clarification of obligation to pay for college to the extent the order pertains to the grandparents' requests for clarification, and dismisses all claims brought by grandparents)
The Family Code allows a party to seek clarification of an order in prior suit affecting the parent-child relationship (SAPCR) when lack of clarity has become an issue and enforcement is impossible. But who is a party? In a recent case, the grandparents were not involved in the parent's original divorce action (as intervenors), but acquired access to the child in a subsequent SAPCR modification proceeding. The Dallas Court of Appeals found that the grandparents did not qualify as "parties" and thus had no standing to seek clarification of the divorce decree provision governing payment of college tuition.
From the opinion:
With respect to statutory standing, the family code provides that “[a] court may clarify an order rendered by the court in a [suit affecting the parent-child relationship] if the court finds, on the motion of a party or on the court's own motion, that the order is not specific enough to be enforced by contempt.” Tex. Fam. Code Ann. § 157.421(a) (Vernon 2008).
Thus, it appears that only “a party” has standing to request clarification of an order in a suit affecting the parent-child relationship. So the question becomes whether Grandparents were “parties” within the meaning of section 157.421(a).
In construing a statute, we start with the plain and ordinary meaning of its words. City of San Antonio v. City of Boerne, 111 S.W.3d 22, 25 (Tex. 2003). If its meaning is unambiguous, we generally enforce it according to its plain meaning. Id. Regardless of whether a statute is ambiguous, we may consider certain extrinsic matters in interpreting it, such as the object the legislature sought to attain, the common law or former statutory provisions, and the consequences of a particular construction. PACCAR Fin. Corp. v. Potter, 239 S.W.3d 879, 882 (Tex. App.-Dallas 2007, no pet.).
“Party” has two ordinary meanings in the legal context: (1) a participant in a transaction, such as a party to a contract, or (2) one by or against whom a lawsuit is brought. Black's Law Dictionary 1154 (8th ed. 2004); accord Doe v. Roe, 600 S.W.2d 378, 379 (Tex. Civ. App.-Eastland 1980, writ ref'd n.r.e.) (“Texas courts have long held that a 'party' is one by or against whom a suit is brought while all others who may be incidentally or consequently affected [are] 'persons interested' but not parties.”).
We give the word “party” as used in section 157.421(a) its ordinary meaning and conclude that Grandparents do not qualify as “parties” under either definition of the word. First, they were not parties to the agreed divorce decree that they seek to have clarified. Second, nothing in our record indicates that they were parties to the litigation at the time the agreed divorce decree was signed by the trial court. It appears that they became parties only when they filed a “motion to modify in suit affecting the parent-child relationship,” which constituted a new cause of action and proceeding under the family code. See generally Tex. Fam. Code Ann. § 156.003 (requiring service of citation on all parties whose rights and duties may be affected by a suit for modification); id. § 156.004 (“The Texas Rules of Civil Procedure applicable to the filing of an original lawsuit apply to a suit for modification under this chapter.”); Bilyeu v. Bilyeu, 86 S.W.3d 278, 280 (Tex. App.-Austin 2002, no pet.) (“Under the Family Code's statutory scheme, the legislature designated a suit to modify a SAPCR as a new cause of action. . . . [T]he original decree remains final and a new final order results from the modification proceeding.”).
We conclude that section 157.421 confers standing to seek clarification only on persons that are parties to the order that is to be clarified or parties to the proceeding in which that order was signed. Grandparents do not allege that they satisfy either criterion, nor does anything in the record show that they satisfy them. Thus, we conclude that they did not have standing to seek clarification. We vacate the trial court's order insofar as it rules on their requests for clarification and dismiss this action as to them.
SOURCE: Appellate opinion in 05-07-01712-CV (decided 2/6/09) (Dallas Court of Appeals vacates the trial court's order on the motion for clarification of obligation to pay for college to the extent the order pertains to the grandparents' requests for clarification, and dismisses all claims brought by grandparents)
Standing based on statute vs. standing as a common-law doctrine
Standing is a general principle of law governing who may bring and maintain a lawsuit. As a general rule, it is rooted in the state's common law as reflected in appellate judicial decisions (case law precedents); but it can also be defined by statute, as is true in the case of child custody proceedings. Where the statute applies, the statutory standing requirements will be followed.
STANDING DEFINED:
Standing is a component of subject-matter jurisdiction. City of Heath v. Duncan, 152 S.W.3d 147, 150 (Tex. App.-Dallas 2004, pet. denied). As such, it cannot be waived and can be raised for the first time on appeal. Mazon Assocs., Inc. v. Comerica Bank, 195 S.W.3d 800, 803 (Tex. App.-Dallas 2006, no pet.). When we consider the issue of standing for the first time on appeal, we construe the petition in favor of the plaintiff and, if necessary, review the entire record to determine whether any evidence supports standing. Id. At common law, “[t]he issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome.” Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 853 (Tex. App.-Dallas 2008, no pet.).
Alternatively, a statute may confer standing on a plaintiff, in which case the statute itself provides the framework for the standing analysis. Mazon Assocs., Inc., 195 S.W.3d at 803.
SOURCE: Appellate opinion by the Dallas Court of Appeals in 05-07-01712-CV (grandparents lacked standing to bring suit for clarification of divorce decree provision governing college expenses) ("We conclude that section 157.421 confers standing to seek clarification only on persons that are parties to the order that is to be clarified or parties to the proceeding in which that order was signed. Grandparents do not allege that they satisfy either criterion, nor does anything in the record show that they satisfy them. Thus, we conclude that they did not have standing to seek clarification. We vacate the trial court's order insofar as it rules on their requests for clarification and dismiss this action as to them.")
STANDING DEFINED:
Standing is a component of subject-matter jurisdiction. City of Heath v. Duncan, 152 S.W.3d 147, 150 (Tex. App.-Dallas 2004, pet. denied). As such, it cannot be waived and can be raised for the first time on appeal. Mazon Assocs., Inc. v. Comerica Bank, 195 S.W.3d 800, 803 (Tex. App.-Dallas 2006, no pet.). When we consider the issue of standing for the first time on appeal, we construe the petition in favor of the plaintiff and, if necessary, review the entire record to determine whether any evidence supports standing. Id. At common law, “[t]he issue of standing focuses on whether a party has a sufficient relationship with the lawsuit so as to have a justiciable interest in the outcome.” Henderson Edwards Wilson, L.L.P. v. Toledo, 244 S.W.3d 851, 853 (Tex. App.-Dallas 2008, no pet.).
Alternatively, a statute may confer standing on a plaintiff, in which case the statute itself provides the framework for the standing analysis. Mazon Assocs., Inc., 195 S.W.3d at 803.
SOURCE: Appellate opinion by the Dallas Court of Appeals in 05-07-01712-CV (grandparents lacked standing to bring suit for clarification of divorce decree provision governing college expenses) ("We conclude that section 157.421 confers standing to seek clarification only on persons that are parties to the order that is to be clarified or parties to the proceeding in which that order was signed. Grandparents do not allege that they satisfy either criterion, nor does anything in the record show that they satisfy them. Thus, we conclude that they did not have standing to seek clarification. We vacate the trial court's order insofar as it rules on their requests for clarification and dismiss this action as to them.")
"Actual care, control, and possession" of the child as basis for non-parent's standing in SAPCR suit
A recent opinion from the Dallas Court of Appeals explains the concept of standing as a general legal principle, and standing for purposes of a child custody procedings in particular. In Texas, standing of grandparents and non-parents is defined by statute (Texas Family Code), and can be based on the child having lived with the petitioner. The magic language is "actual care control and possession" of the child. To get a better idea of what that means, one has to look at appellate opinions (case law). Below is an excerpt of a recent opinion of the Dallas Court of Appeals involving standing issues. Note that it points out that the standing rules can't be applied mechanically and that the application of the standing criteria depends on the specific facts in a particular case. That means that the trial court will have greater discretion than would otherwise be the case, and that the court's ruling will not be predictible. It also means that that the issue may not be easily resolved on appeal either. Different courts and judges may reach different conclusions as to whether the statutory standing requirements were met in a particular situation:
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.
SOURCE: Dallas Court of Appeals opinion in 05-08-00568-CV (8/8/09)
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.
SOURCE: Dallas Court of Appeals opinion in 05-08-00568-CV (8/8/09)
What is "standing" and "lack of standing"?
Quick answer: Something serious that may nix a pending or contemplated lawsuit without regard to the merits because the plaintiff (or the petitioner or intervenor in a child custody proceeding) did not have the right to bring the action or get involved in a pending proceeding.
In laymen's terms "standing" means that you can't get the judge to play umpire if you don't have a dog in the fight. Stated differently, you must have a real complaint against someone that a court can do something about under the law. Of course, such a general definition won't do for legal purposes. Nor is it enough for standing purposes to simply assert a claim or complaint. The right to make that claim must be recognized under the law.
Here is how the Dallas Court of Appeals defined standing as a general principle. (Note that standing for grandparents and non-parents in suits affecting the parent-child relationship is governed by the Texas Family Code, i.e. by statute, rather than by general standing principles found in case law):
Standing is a party's justiciable interest in a controversy. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996); Town of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex. App-Dallas 2008, no pet.). Without a breach of a legal right belonging to a plaintiff, that plaintiff has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.-Fort Worth 2001, pet. denied). Only the person whose primary legal right has been breached may seek redress for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.-Dallas 2005, no pet.). In reviewing standing on appeal, we construe the petition in favor of the plaintiff, and if necessary, review the entire record to determine if any evidence supports standing. See Tex. Air Control Bd., 852 S.W.2d at 446.
Lack of standing is a fundamental issue that is difficult, if not impossible, to fix. It can provide a basis for an order being thrown out on appeal if the trial court entered it in favor of a party who did not satisfy the standing requirement. Standing is treated as jurisdictional. When there is no jurisdiction, the hands of the judge are tied. All the court can do under such circumstances is dismiss the lawsuit, or the appeal, whichever applies, or to dismiss the party without standing (in a suit with multiple other parties). As put by the Dallas court, with citations to caselaw:
Standing, a necessary component of subject matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). A standing defect cannot be waived and can be raised for the first time on appeal. Id. at 445-46. A party's standing to pursue a claim is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
SOURCE: Opinion of the Dallas Court of Appeals in 05-08-00038-CV
In laymen's terms "standing" means that you can't get the judge to play umpire if you don't have a dog in the fight. Stated differently, you must have a real complaint against someone that a court can do something about under the law. Of course, such a general definition won't do for legal purposes. Nor is it enough for standing purposes to simply assert a claim or complaint. The right to make that claim must be recognized under the law.
Here is how the Dallas Court of Appeals defined standing as a general principle. (Note that standing for grandparents and non-parents in suits affecting the parent-child relationship is governed by the Texas Family Code, i.e. by statute, rather than by general standing principles found in case law):
Standing is a party's justiciable interest in a controversy. See Nootsie, Ltd. v. Williamson County Appraisal Dist., 925 S.W.2d 659, 661-62 (Tex. 1996); Town of Fairview v. Lawler, 252 S.W.3d 853, 855 (Tex. App-Dallas 2008, no pet.). Without a breach of a legal right belonging to a plaintiff, that plaintiff has no standing to litigate. Cadle Co. v. Lobingier, 50 S.W.3d 662, 669-70 (Tex. App.-Fort Worth 2001, pet. denied). Only the person whose primary legal right has been breached may seek redress for an injury. Nauslar v. Coors Brewing Co., 170 S.W.3d 242, 249 (Tex. App.-Dallas 2005, no pet.). In reviewing standing on appeal, we construe the petition in favor of the plaintiff, and if necessary, review the entire record to determine if any evidence supports standing. See Tex. Air Control Bd., 852 S.W.2d at 446.
Lack of standing is a fundamental issue that is difficult, if not impossible, to fix. It can provide a basis for an order being thrown out on appeal if the trial court entered it in favor of a party who did not satisfy the standing requirement. Standing is treated as jurisdictional. When there is no jurisdiction, the hands of the judge are tied. All the court can do under such circumstances is dismiss the lawsuit, or the appeal, whichever applies, or to dismiss the party without standing (in a suit with multiple other parties). As put by the Dallas court, with citations to caselaw:
Standing, a necessary component of subject matter jurisdiction, is a constitutional prerequisite to maintaining a suit under Texas law. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 444-45 (Tex. 1993). A standing defect cannot be waived and can be raised for the first time on appeal. Id. at 445-46. A party's standing to pursue a claim is a question of law that we review de novo. Mayhew v. Town of Sunnyvale, 964 S.W.2d 922, 928 (Tex. 1998).
SOURCE: Opinion of the Dallas Court of Appeals in 05-08-00038-CV
Saturday, July 25, 2009
The Perils of Litigating Pro Se (without a lawyer)
Time and again litigants come to grief trying to represent themselves without competent licensed attorney. They have the right to do so under the rules, but self-represented parties are rarely successful, for numerous reasons. In one recent case, a pro se grandparent brought a suit regarding a grandchild that he not only lost, but for which he was punished by having to pay the other party's attorney's fees as a sanction. A warning worth heeding.
FROM THE APPELLATE OPINION:
It appears that Watts' real complaint is that the trial court erred by imposing the attorney's fees as a sanction pursuant to Tex. R. Civ. P. 13 for his frivolous filing of a lawsuit in which he clearly had no standing, in a county where the child had not lived for four years, seeking a form of relief to which he was not entitled.
The trial court heard the parties on this matter. Rule 13 allows imposition of the penalties set out in Rule 215.2(b) on concluding that a pleading or lawsuit is groundless and brought in bad faith, or groundless and brought for the purpose of harassment, or as an experiment. Tex. R. Civ. P. 13. "Groundless" is defined by the rule as having "no basis in law or fact and not warranted by good faith argument for the extension, modification, or reversal of existing law."
There is no conceivable way in which the genetic testing statute could be utilized by this party for this purpose. The trial court found in its judgment that the action was violative of Rule 13 and that the lawsuit was frivolous because Watts had no standing, and then ordered Watts to pay the appellees' attorney's fees.
Sanctions for filing frivolous pleadings are available under Chapter 10 of the Texas Civil Practice and Remedies Code or under Rule 13 of the Texas Rules of Civil Procedure. Save Our Springs Alliance, Inc. v. Lazy Nine Mun. Util. Dist. ex rel. Board of Directors, 198 S.W.3d 300, 319 (Tex. App.--Texarkana 2006, pet. filed). We review a trial court's Rule 13 sanction for abuse of discretion. Am. Flood Research, Inc. v. Jones, 192 S.W.3d 581 (Tex. 2006). Although a trial court's failure to specify the good cause for sanctions in a sanction order may be an abuse of discretion, Gaspard v. Beadle, 36 S.W.3d 229, 239 (Tex. App.--Houston
[1st Dist.] 2001, pet. denied), in this case, the reason was apparent from the order.
We also recognize that sanctions should not be used as "a weapon . . . to punish those with whose intellect or philosophic viewpoint the trial court finds fault." Save Our Springs Alliance, 198 S.W.3d at 319; Tarrant County v. Chancey, 942 S.W.2d 151, 154-55 (Tex. App.--Fort Worth 1997, no writ).
A trial court abuses its discretion if it acts "without reference to any guiding rules and principles," such that its ruling is arbitrary or unreasonable. Cire v. Cummings, 134 S.W.3d 835, 839 (Tex. 2004). When determining if the trial court abused its discretion, we must ensure that the sanctions were appropriate or just. Id. The Texas Supreme Court has articulated a two-part inquiry that we should conduct in making this determination. Id. First, we must ensure the punishment was imposed on the true offender and tailored to remedy any prejudice caused. Id. Second, we must make certain that less severe sanctions would not have been sufficient. Id.
The punishment was imposed on Watts, who intentionally pursued a patently unavailable cause of action for reasons not supportable under the statute. Thus, the true offender was punished. See Onstad v. Wright, 54 S.W.3d 799, 809 (Tex. App.--Texarkana 2001, pet. denied). The prejudice caused was that of having to incur attorney's fees to defend against the frivolous lawsuit. The sanction was tailored to remedy the harm. Watts argues that less severe sanctions would have been sufficient. He does not suggest what those might be, and we find it appropriate to require an individual who files a frivolous lawsuit against a party to pay that party's attorney's fees. The sanction was not as severe as it could have been, and we find no abuse of discretion in imposing this sanction in this particular situation. The contention of error is
overruled.
For the reasons stated above, we find that the trial court correctly dismissed the lawsuit and that the attorney's fees imposed as sanctions are supportable.
In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007) (pro se grandparent suit for visitation and motion for genetic testing found baseless and frivolous; sanctions imposed)
STANDING: Grandparent must have standing to bring suit for access to grandchild under Texas Family Code
Standing refers to the legal right to bring an action in court. In the case of grandparents, the requirements for standing to file a suit affecting the parent-child relationship, or to intervene in a pending suit involving child custody or visitation, are defined by statute, specifically the Texas Family Court.
Texas courts of appeals have addressed standing in grandparents rights cases as follows:
Standing is implicit in the concept of subject matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex. 1993). A party's lack of standing deprives the trial court of subject matter jurisdiction, and renders any trial court action void. Taub v. Aquila Sw. Pipeline Corp., 93 S.W.3d 451, 455 (Tex. App.- Houston [14th Dist.] 2002, no pet.). Whether a party has standing is a threshold issue, and one which we review de novo. See In re SSJ-J, 153 S.W.3d 132, 134 (Tex. App.- San Antonio 2004, no pet.); Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex. App. Houston [1st Dist.] 2006, pet. denied). When standing has been conferred by statute, the statute itself should serve as the proper framework for a standing analysis. In re Sullivan, 157 S.W.3d 911, 915 (Tex. App.- Houston [14th Dist.] 2005, orig. proceeding [mand. denied]).
* * *
The Family Code provides that a biological or adoptive grandparent may request access to a grandchild. See Tex. Fam. Code Ann. ' 153.432. As the child's biological grandmother, Lisa meets this standing requirement. The Smiths contend, however, that section 153.433 imposes additional conditions for standing. The plain statutory language does not support this interpretation. Sections 153.432 and 153.434[4] expressly speak in terms of when a grandparent "may request" or "may not request" access or possession, and therefore address the right to file an access suit. See Tex. Fam. Code Ann. '' 153.432, 153.434. By contrast, section 153.433 outlines when "[t]he court shall order" possession or access. See id. ' 153.433.
Not surprisingly, Texas courts consistently have held that a grandparent's standing to request access is conferred by section 153.432, not 153.433: "Section 153.432 of the family code does give grandparents standing to petition the court for access to or possession of a child. Section 153.433 identifies the conditions under which such possession or access will be granted." In re H.M.J.H., 209 S.W.3d 320, 322 (Tex. App.- Dallas 2006, no pet).[5] Although a successful access suit might require the grandparent to satisfy section 153.433, whether the grandparent ultimately will succeed is a different question than whether the grandparent has the right simply to bring suit. See generally In re C.M.C., 192 S.W.3d 866, 869-70 (Tex. App.- Texarkana 2006, no pet.) ("[A] decision concerning whether a party has standing is not a decision deciding the merits of a case."); In re SSJ-J, 153 S.W.3d at 138 ("[S]tanding does not mean the right to win; it is only a right to be heard.").
In re Kevin J. Smith, No. 14-08-00164-CV , ___ S.W.3d ___ (Tex.App.- Houston [14th Dist.] July 3, 2008)(Frost) (SAPCR, grandparent access mandamus denied, standing requirement for access satisfied)
Standing is a threshold issue and must be decided before the merits of the case. In re K.I.A., 205 S.W.3d 14 (Tex. App.--Eastland 2006, no pet.); In re Pringle, 862 S.W.2d 722, 724 (Tex. App.--Tyler 1993, no pet.).
When standing has been statutorily conferred, the statute itself serves as the proper framework for a standing analysis. Daimler Chrysler Corp. v. Inman, 121 S.W.3d 862, 869 (Tex. App.--Corpus Christi 2003, no pet.); Everett v. TK-Taito, L.L.C., 178 S.W.3d 844, 851 (Tex. App.--Fort Worth 2005, no pet.); see Williams v. Lara, 52 S.W.3d 171, 178 (Tex. 2001). Standing to pursue the action, in this context, is provided by statute. Watts is not a party given standing to pursue the action. Thus, the trial court correctly dismissed his suit on that basis. In re L.K.W.G., No. 06-06-00073-CV (Tex.App.- Texarkana, Feb. 2, 2007) (pro se grandparent suit motion for visitation had no standing, basis to bring lawsuit and file motions; frivolous suit finding, sanctions imposed)
[S]ection 102.004(b) [of the Texas Family Code] explicitly sets forth who may intervene in a suit seeking to establish managing conservatorship. Tex. Fam. Code Ann. § 102.004(b) (Vernon Supp. 2007). Gary and Cindy B. did not meet that criteria. In a similar context involving a step-grandparent, the Texas Supreme Court rejected a standing argument based on an asserted justiciable interest, holding, "We cannot conclude that [the step-grandparent] has a justiciable interest in the controversy sufficient to override the statutory text" that explicitly sets forth who may sue for access. In re Derzapf, 219 S.W.3d 327, 332-33 (Tex. 2007). Similarly, in this case, we cannot conclude that Gary and Cindy B. have a justiciable interest in the controversy sufficient to override the statutory text requiring them to have substantial past contact in order to intervene as an "other person." See id. In re S.L.M., No. 04-07-00566-CV (Tex.App.- San Antonio June 18, 2008) nonparent standing, sibling visitation)
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