In re Cisneros
| Decision Date | 07 April 2020 |
| Docket Number | NUMBER 13-20-00094-CV |
| Parties | IN RE NANCY GRACIELA CISNEROS |
| Court | Texas Court of Appeals |
On Petition for Writ of Mandamus.
MEMORANDUM OPINIONBefore Justices Benavides, Hinojosa, and Tijerina
1
Relator Nancy Graciela Cisneros filed a petition for writ of mandamus in the above cause on February 13, 2020. Through this original proceeding, Nancy contends that the trial court erred in concluding that she lacks standing to seek conservatorship of minor child, S.D.E.2 We conditionally grant the petition for writ of mandamus.
The underlying matter arises from a divorce proceeding between Sherie Esparza and Nancy Graciela Cisneros. S.D.E. was born on October 6, 2003 and is Sherie's biological daughter and Nancy's stepdaughter.
On January 13, 2020, Sherie filed an "Original Petition for Divorce and Temporary Restraining Order." The petition alleged that Sherie and Nancy were married on or about June 16, 2018 and ceased to live together as spouses on or about January 5, 2020. The petition stated that the McAllen Municipal Court had entered a protective order, expiring on or about March 6, 2020, removing S.D.E. from Sherie and giving custody to Nancy, "a non-parent and a non-blood relative," without evidence or a hearing. The petition alleged, inter alia, that Nancy had denied Sherie and Sherie's mother, Barbara Esparza, access to S.D.E., that Nancy was originally from Mexico and "it is feared that she will kidnap the minor child to Mexico," that Nancy had committed various actions such as removing Sherie's access to S.D.E. at her high school, taking her to a doctor "without her mother's consent," and cutting off all access to S.D.E. from Sherie's side of the family. Sherie alleged that Nancy lacked standing to have custody of S.D.E., and she sought a temporary restraining order to return S.D.E. to her custody and possession, or alternatively, that custody and possession of S.D.E. be given to biological grandmother Barbara. Without providing details, Sherie alleged that S.D.E. was in "imminent danger" because of Nancy's custody and possession. The petition was supported by a copy of the "Magistrate's Order of Emergency Protection" issued by the McAllen Municipal Court, which identified Sherie as the "Defendant," stated that she was arrested for an offense involving family violence or another specified penal code offense, and provided an orderof emergency protection for Nancy and S.D.E. for a duration of sixty-one days. The petition was also accompanied by Sherie's affidavit supporting some of the factual allegations in the petition.
On January 13, 2020, the trial court entered a "Temporary Restraining Order" in Sherie's favor and set a hearing for January 27, 2020 to determine whether the temporary restraining order should be made a temporary injunction pending final hearing. This order denied Nancy possession of S.D.E.
On January 24, 2020, Nancy filed an "Original Counter-Petition[] for Divorce and in Suit Affecting the Parent Child Relationship." Nancy alleged that she was S.D.E.'s stepmother, that she had standing to bring the suit, and that she "had actual care, control, and possession of the child for at least six months ending not more than 90 days preceding the date of the filing of the petition." She alleged that it was in S.D.E.'s best interest that she be appointed her sole managing conservator and that Sherie had "engaged in a history or pattern" of family violence and child abuse. Nancy argued that awarding Sherie access to S.D.E. would endanger S.D.E.'s physical health and emotional welfare.
On January 27, 2020, the trial court held an evidentiary hearing on Sherie's request for injunctive relief. According to the record of that hearing, counsel for the parties engaged in rancorous and angry argument with frequent and bitter interruptions and repeated instances where counsel accused each other and their respective clients of "blatant" lying and asserting facts that constituted, e.g., "a total lie straight from the pit of hell."
At the hearing, counsel for Sherie represented that S.D.E. had been residing with Barbara, her biological grandmother, for the past fourteen days at the family's home. Sherie's counsel argued that Nancy was a Mexican citizen and that there was a "great concern" that she would "abduct the child" and take her to Mexico because she was in possession of the child's birth certificate. Sherie requested that there be "no contact" between Nancy and S.D.E. because "[t]hey're not blood-related; she's a non-parent." Counsel asserted that Nancy's standing was a constitutional issue and argued that it was "against public policy to take a child away from their mother just because [Nancy] wants to." Sherie's counsel argued that Nancy was attempting to "get-even" with Sherie "because [Nancy] has threatened [Sherie] many, many times" that Sherie should not leave Nancy "because if you leave me I'm going to take your child and I'm going to leave you in the street." Counsel argued that Nancy "has no standing or protected interest that allows her to interfere with [Sherie's] constitutional right to raise the child as she sees fit."
Nancy's counsel, in contrast, asserted that there was "no danger" of Nancy abducting S.D.E. because Nancy was a legal permanent resident of the United States who had resided in this country for years. She alleged that Sherie had "strangled" both Nancy and S.D.E. in the domestic violence event that prompted the municipal court protective order, which had occurred on January 5, 2020, and that there was an "extensive history of domestic violence in this relationship, also involving the child." Nancy's counsel argued that S.D.E. did not have a good relationship with Barbara and that a Child Protective Services worker, who was present to provide testimony, was of the opinion that S.D.E. did not feel comfortable living with Barbara because Barbara was present during domestic violence involving S.D.E. but failed to protect her.
During the hearing, the trial court expressly queried whether the parties were ready to argue standing, and they proceeded to address the issue. The parties and trial court discussed the application and requirements of § 102.003(9) of the Texas Family Code, which governs nonparent standing. See TEX. FAM. CODE ANN. § 102.003(a)(9) (). The trial court stated that the statute "gives everybody—anybody standing." The trial court appeared to be concerned that S.D.E. was born before Sherie and Nancy married, that a "maid" or "nanny" could meet the requirements under the statute, and that the statute presumes that "there's no biological parent around." The trial court expressly noted that Sherie, the parent, is "available" and has not "relinquished" or "abandoned" S.D.E.
Although the parties had numerous witnesses prepared to testify, ultimately, the only witness to testify at the hearing was Nancy. Nancy testified that at the time of the hearing, S.D.E. was in the tenth grade and studied math, biology, history, and English, and took pre-AP classes. Nancy testified that S.D.E.'s grades were good, and she participated in both swimming and soccer extracurricular activities.
According to Nancy, she first met Sherie in 2006 and they began dating at the end of 2010. Nancy met S.D.E. immediately and stated that she saw her "[j]ust about all the time." Nancy and Sherie moved in together after three months of dating, and S.D.E. lived with them from that date until January 2020, when the domestic violence issue occurred. There were no other members of their household. Nancy testified that when they first started living together, she taught S.D.E. the alphabet and how to read. Nancy also took S.D.E. to school, helped her with her homework, made her lunch, took her to the doctorand dentist, and attended school activities with her. She specified that she had been taking S.D.E. to school for eleven years and had been helping her with her homework for "[a]ll the years that I've been with her; 11 years." She made S.D.E. lunch "the majority of the time." Nancy testified that she was the only one who took S.D.E. to the doctor when she needed to go. Nancy attended S.D.E.'s school activities "[a]ll the time that she needs." Nancy stated that she was "in charge" of her family. She denied that (1) Sherie was the only one who disciplined S.D.E., (2) Sherie did not allow her to discipline S.D.E., and (3) Sherie did not let her discipline S.D.E. "because [she is] so mean to the child."
Nancy testified that S.D.E. called her "Mommy" and called Sherie "Mom." Nancy testified that when S.D.E. had a problem, she approached her to discuss it the "majority" of the time, as opposed to approaching Sherie.Nancy described S.D.E.'s relationship with Sherie as "good," and asserted that they were "really close," but stated that Sherie and S.D.E. did not spend "a lot" of time together because S.D.E. is "always with me all the time." Nancy said if they were going to cook or clean, "it's always with me." Nancy testified that she was "close" with S.D.E. at the present time, but that she was unable to attend her school events because she was prohibited by the trial court's restriction. She had previously attended S.D.E.'s soccer and swimming events.
Although the record contains some testimony and allegations regarding alleged malfeasance by the parties, the trial court refused to allow additional testimony regarding domestic violence or to admit a videotape of the alleged incident that had occurred in January. After Nancy testified, the trial court stated that "I'm ready to rule that she has no standing" and stated that she lacked standing. The trial court rejected Nancy's argument that she possessed standing under § 102.003(a)(9)...
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