In re Gandy, 11-22-00197-CV

CourtCourt of Appeals of Texas
Writing for the CourtW. BRUCE WILLIAMS, JUSTICE
Citation649 S.W.3d 921
Parties IN RE Kimberly GANDY
Docket Number11-22-00197-CV
Decision Date28 July 2022

649 S.W.3d 921

IN RE Kimberly GANDY

No. 11-22-00197-CV

Court of Appeals of Texas, Eastland.

Opinion filed July 28, 2022


Karen J. Langsley, Langsley Mills Law, LLC, Denver, CO, for Relator.

James Hicks, District Attorney, Britt Lindsey, Assistant, Abilene, for Real party in interest Texas Department of Family & Protective Services.

Amber Drennan, Abilene, for Real party in interest Williams, Stacie and Ike.

David W. Thomas, Abilene, for Real party in interest M., A.

Ashton R. Anderson, Abilene, for Real party in interest In the interest of R.M., a child.

Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.

W. BRUCE WILLIAMS, JUSTICE

Relator, Kimberly Gandy, is the alleged paternal grandmother of R.M., the child that is the subject of the underlying suit affecting the parent-child relationship (SAPCR) and for termination of parental rights. She has filed a petition for writ of mandamus and request for emergency relief in this court. In her petition, Relator requests that we direct the Honorable April R. Propst, associate judge of the 326th District Court, to withdraw her order

649 S.W.3d 924

striking Relator's petition in intervention and to allow her to intervene in the underlying suit.1 Relator further requests that this court stay all proceedings in the underlying suit until we issue the mandate and Relator is reinstated as an intervenor, or until Relator exhausts her appellate remedies. After reviewing the petition and the responses, considering the question of law and construing the applicable Texas Family Code provision de novo, we conclude that the trial court abused its discretion in granting the motion to strike the intervention and therefore conditionally grant in part Relator's petition for writ of mandamus.

Factual and Procedural History

Real party in interest and mother, A.M., has two children that are the subject of an underlying suit for termination of her parental rights, including R.M. On March 24, 2021, real party in interest Texas Department of Family and Protective Services (the Department) filed for protection, conservatorship, and termination of parental rights of both children.2 On September 8, 2021, Relator, as the alleged grandmother of R.M. through her deceased biological son, filed a petition in intervention pertaining to R.M. Relator's petition requested adoption of R.M. should the mother's parental rights be terminated, or in the alternative, that Relator be appointed sole managing conservator or possessory conservator of R.M. Relator participated in the proceedings, including hearings and trial, following the filing of her petition.

The Department began its case in chief on February 14, 2022, and, after a continuance, rested its case on March 3, 2022. The trial court resumed on March 17, 2022. After discovering that a presumed father to R.M. was listed in a divorce decree in Taylor County, Texas, Relator filed a motion to dismiss R.M. from the termination suit for failure to notify the presumed father, a necessary party to the SAPCR, of the trial date. The Department filed a motion to strike Relator's intervention later the same day. The court sua sponte declared a mistrial and severed R.M. from the case on April 4, 2022. Following a hearing, the trial court granted the Department's motion to strike Relator's petition in intervention and dismissed her from the suit.

Availability of Mandamus Review

Mandamus is an extraordinary remedy. See In re Sw. Bell Tel. Co. , 235 S.W.3d 619, 623 (Tex. 2007) (orig. proceeding). For an appellate court to issue mandamus, a relator must show that (1) the trial court abused its discretion and (2) the relator has no adequate remedy on appeal. See In re C.J.C. , 603 S.W.3d 804, 811 (Tex. 2020) (orig. proceeding) ; In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36 (Tex. 2004) (orig. proceeding). While an appellate court defers to the trial court's factual determinations, mandamus may issue when the trial court "fails to correctly analyze or apply the law." In re C.J.C. , 603 S.W.3d at 811 (quoting In re Ford Motor Co. , 165 S.W.3d 315, 317 (Tex. 2005) (per curiam) (orig. proceeding) ).

Analysis

Standing, like other issues implicating a court's subject-matter jurisdiction, is a question of law and is therefore reviewed de novo.

649 S.W.3d 925

In re H.S. , 550 S.W.3d 151, 155 (Tex. 2018). When determining whether standing exists in a particular case, the reviewing court construes the pleadings in the light most favorable to the plaintiff and "consider[s] relevant evidence offered by the parties." Id. ; see also In re N.L.D. , 344 S.W.3d 33, 37 (Tex. App.—Texarkana 2011, no pet.) ("In our de novo review of the trial court's determination of standing, we must take as true all evidence favorable to the challenged party and indulge every reasonable inference and resolve any doubts in the challenged party's favor." (citing Tex. Dep't of Parks & Wildlife v. Miranda , 133 S.W.3d 217, 228 (Tex. 2004) )). We look not to whether the party will prevail on the merits but whether he or she may intervene in the suit in the first instance. See In re H.S. , 550 S.W.3d at 154–55.

When the legislature "confer[s] standing by statute, ‘the analysis is a straight statutory construction of the relevant statute.’ " Creekside Rural Invs., Inc. v. Hicks , 644 S.W.3d 896, 905 (Tex. App.—Eastland 2022, no pet.) (quoting In re Sullivan , 157 S.W.3d 911, 915 (Tex. App.—Houston [14th Dist.] 2005, orig. proceeding) ). The Texas Family Code allows a grandparent or other person to intervene in a pending SAPCR if such person meets the requirements of Section 102.004(b) of the Texas Family Code. Section 102.004(b) provides:

An original suit requesting possessory conservatorship may not be filed by a grandparent or other person. However, the court may grant a grandparent or other person, subject to the requirements of Subsection (b-1) if applicable, deemed by the court to have had substantial past contact with the child leave to intervene in a pending suit filed by a person authorized to do so under this chapter if there is satisfactory proof to the court that appointment of a parent as a sole managing conservator or both parents as joint managing conservators would significantly impair the child's physical health or emotional development.

TEX. FAM. CODE ANN. § 102.004(b) (West 2019).

As an initial matter, the Department and the respondent argue that Relator has provided insufficient proof that she is the paternal grandmother of R.M. We disagree. In reviewing the pleadings in the light most favorable to Relator and considering the relevant evidence offered by the parties, we conclude that Relator provided sufficient proof of her relationship to R.M. to allow her to intervene in the underlying SAPCR.

Relator's pleadings and testimony provide sufficient proof that she is the paternal grandmother of R.M. In her petition for intervention, Relator stated that she is the alleged paternal grandmother to R.M., that she has adopted siblings of R.M, and that Christopher Solomon is the father of the child. At the hearing on the motion to strike, Relator testified that, while the presumed father was incarcerated, Relator's biological son and A.M. were in a...

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1 practice notes
  • Trimcos, LLC v. Compass Bank, 01-19-01000-CV
    • United States
    • Court of Appeals of Texas
    • July 28, 2022
    ...Trimcos complains that its failure to "obtain pre-approval on items not included in the ... contract should not result in forfeiture 649 S.W.3d 921 of amounts that were agreed upon." But Trimcos did not identify any "amounts that were agreed upon" in its summary-judgment......
1 cases
  • Trimcos, LLC v. Compass Bank, 01-19-01000-CV
    • United States
    • Court of Appeals of Texas
    • July 28, 2022
    ...Trimcos complains that its failure to "obtain pre-approval on items not included in the ... contract should not result in forfeiture 649 S.W.3d 921 of amounts that were agreed upon." But Trimcos did not identify any "amounts that were agreed upon" in its summary-judgment......

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