In re Interest of H.S.

• Decision Date: 28 July 2016
• Docket Number: NO. 02-15-00303-CV,02-15-00303-CV
• Citation: 552 S.W.3d 282
• Parties: IN the INTEREST OF H.S., a Minor Child
• Court: Texas Court of Appeals

552 S.W.3d 282

IN the INTEREST OF H.S., a Minor Child

NO. 02-15-00303-CV

Court of Appeals of Texas, Fort Worth.

DELIVERED: July 28, 2016

ATTORNEY FOR APPELLANT: THOMAS MICHEL, GRIFFITH, JAY & MICHEL, LLP, FORT WORTH, TX.

ATTORNEY FOR APPELLEE: KIRK PITTARD, DAVA GREENBERG-SPINDLER, KELLY, DURHAM & PITTARD, LLP, DALLAS, TX.

PANEL: WALKER, MEIER, and SUDDERTH, JJ.

MEMORANDUM OPINION¹

SUE WALKER, JUSTICE

I. INTRODUCTION

The sole issue we address in this appeal is whether the trial court erred by ruling that Grandparents² lack standing under Texas Family Code section 102.003(a)(9) to file an original suit seeking to modify Mother’s and Father’s parent-child relationship with Grandparents' granddaughter, Heather.³ See Tex. Fam. Code Ann. § 102.003(a)(9) (West Supp. 2015). Because Grandparents lack standing, we will affirm the trial court’s order granting Father’s plea to the jurisdiction and dismissing Grandparents' suit.

II. FACTUAL AND PROCEDURAL BACKGROUND

The facts are straightforward and undisputed.⁴ The following testimony was elicited at the hearing on Father’s plea to the jurisdiction asserting that Grandparents lack standing.

Although Heather’s Mother and Father never married, they coparented Heather from birth. Mother and Father were joint managing conservators of Heather, and Mother had the right to designate Heather’s primary residence.⁵ Mother and Heather lived primarily with Grandparents until Heather was a little over a year old. Around this time, in March 2014, Grandparents, Father, and Mother all agreed that Mother needed to address her alcohol-abuse issues by participating in and living at Sober Living.

Mother testified that she and Father initially discussed having Heather live with Father during Mother’s rehab, but they decided against it because they thought Mother’s stint in rehab would be "extremely temporary," not longer than three months. Grandparents approached Mother and asked if Heather could stay with them while Mother underwent rehab. Grandparents, Father, and Mother held a family meeting, and everyone agreed that Heather would stay with Grandparents. Mother testified that she agreed to let Heather stay with Grandparents as "a temporary solution until [she] got back on [her] feet and got a little more stable in [her] recovery[,] and then [Heather] would go back to stay[ing] with [Mother], and [Father] and [Mother] would continue to coparent together." Mother reiterated that she always intended to and did return for Heather, that Heather’s stay with Grandparents was a temporary situation, and that Grandparents agreed to this arrangement.

As it turned out, Mother’s rehab took longer than expected, and Grandparents filed a petition to modify Mother’s and Father’s parent-child relationship with Heather on October 4, 2014—six months and one week after Mother had entered rehab. Grandparents alleged that Mother had voluntarily relinquished the actual care, custody, and control of Heather and requested to be appointed as the persons with the exclusive right to designate Heather’s primary residence; the right, after consultation with Father and Mother, to make invasive medical decisions for Heather; the right to receive child support; and the right, after consultation with Father and Mother, to make educational decisions for Heather. Father answered, denying that Mother had voluntarily relinquished Heather’s actual care, custody, and control to Grandparents for six months prior to the date they filed suit and filed a plea to the jurisdiction asserting that Grandparents lacked standing to bring their suit.⁶

Mother explained that while she lived at Sober Living, she worked and then went to Grandparents' house in the evenings to have dinner with Heather, to spend time with her, to bathe her, and to put her to bed. Mother picked up Heather from daycare on occasions when she was able to borrow a car. Mother continued to make decisions regarding Heather, and both Mother and Grandmother made doctor appointments for Heather. Mother signed a consent with one doctor to allow Grandparents to have Heather treated because Heather had serious ear infections. Mother testified that by signing the medical authorization for Heather, Mother was not relinquishing care and control of Heather to Grandparents. Mother said that Grandmother tried to keep her and Father reasonably informed about the doctor appointments that Grandmother made for Heather. Mother agreed that Grandparents paid for Heather’s daycare and were primarily in charge of Heather’s day-to-day activities while Mother was in rehab. Mother testified that she kept in contact with Grandmother and never intended to relinquish care and control of Heather.

While Mother was in treatment, Father kept Heather every other weekend and saw Heather "more than that." Sometimes Father would pick up Heather on Thursday and would keep her until Sunday. Mother said that she talked to Father about Heather every day during that time (March to October 2014) and that Father brought Heather to see Mother.

Mother testified that during the March to October time frame, Mother and Father both repeatedly expressed the opinion that Heather should live with Father, but Grandmother "disagreed." Mother explained that when Grandmother did not agree to let Heather live with Father, she believed "that my mom wants to have control."

Grandmother testified that when Mother started relapsing, Grandparents asked Mother to go to Sober Living, and she agreed. Grandmother testified that she and her husband agreed to support Mother in her recovery by taking care of Heather. Grandmother said that several family meetings were held and that Mother and Father agreed that Heather would stay with Grandparents.

Grandmother testified that she and her husband were in charge of Heather’s daily activities⁷ but said that she tried to keep Mother informed about Heather’s activities and tried to involve Mother and Father in those decisions. Grandmother testified that she kept Mother fully informed of everything going on with Heather and that both Mother and Father gave input on how to care for Heather. Grandmother agreed that Mother made doctor appointments for Heather’s fifteen-month and eighteen-month well-care checkups; when Grandmother needed to take Heather to the doctor, she did not make appointments but instead took Heather to urgent care.

Grandmother agreed that Mother saw Heather while Grandmother cared for Heather from March until October 2014. Grandmother testified that Father’s visits with Heather were sporadic until the end of May or the beginning of June 2014 when they worked out a deal for him to visit with Heather every other weekend. But Grandmother said that Father has been in Heather’s life since her birth and that he sees her on a regular basis. According to Grandmother, Father never kept Heather for more than a four-day period, never exercised his right to summer visitation, never asked for Heather to live with him, and never filed any document with a court requesting to be named Heather’s primary conservator. Grandmother also testified that Mother never talked to her about having Heather live with Father.

Father testified that between March and October 2014, he asked Grandparents on three occasions for Heather to come and live with him; Grandmother’s response was always, "[W]e'll talk about it," but then "it never gets talked about." Father said that before Mother went to rehab, he told Grandparents that Heather should live with him; that a two-week-long discussion ensued via text messages, phone calls, and in-person conversations; and that he and Mother ultimately agreed to let Heather live with Grandparents while Mother was in treatment.

Father testified that he has always had a close relationship with Heather and that since she was born, the longest he had gone without seeing her was four days when he was on vacation. He testified that he saw Heather more than every other weekend; he explained that he sometimes saw her two weekends in a row and that many times, he picked her up on Thursdays. Father said that he did not exercise his summer visitation because he was not aware he had it; he did not look at the ordered possession schedule because Mother had always allowed him to see Heather whenever he wanted. Father said that he did not initiate court proceedings because he thought that everything would go back to normal after Mother got out of treatment; he said that he had even discussed getting his own place with Mother and Heather.

Father agreed that Grandparents were Heather’s primary caregivers from March 30 to December 19 when he took possession of Heather. He said that Grandparents kept him reasonably informed about what was going on with Heather. Father testified that because Heather was staying with Grandparents, he gave them a medical authorization to allow them to seek treatment for Heather for "any type of emergency reasons." On more than one occasion, a healthcare provider contacted Father for authorization to provide healthcare for Heather.

At the conclusion of the hearing before the trial court on Father’s plea to the jurisdiction, the trial court found that based on the parties' agreement—that Heather would live temporarily with Grandparents until Mother returned from treatment—Grandparents had failed to establish that they had actual care and actual control over Heather for the statutorily-required six months; thus, Grandparents failed to establish standing to pursue a suit affecting the parent-child relationship (SAPCR). The trial court granted Father’s plea to the jurisdiction and dismissed Grandparents' suit.⁸

Grandparents perfected this appeal, raising a single issue asserting that the trial court erred by determining that they lacked standing under Texas Family Code section 102.003(a)(9) to file a SAPCR concerning Heather. See Tex. Fam. Code Ann. § 102.003(a)(9).

III. STANDARD OF REVIEW AND STANDING UNDER SECTION 102.003( A )(9)

Whether a plaintiff has standing is a question...