In re Interest of T.E.R.

• Decision Date: 09 April 2020
• Docket Number: No. 06-19-00073-CV,06-19-00073-CV
• Citation: 603 S.W.3d 137
• Parties: In the INTEREST OF T.E.R., a Child
• Court: Texas Court of Appeals

603 S.W.3d 137

In the INTEREST OF T.E.R., a Child

No. 06-19-00073-CV

Court of Appeals of Texas, Texarkana.

Date Submitted: January 8, 2020

Date Decided: April 9, 2020

Ebb B. Mobley, Attorney at Law, Longview, for Appellant.

Jessica Kroscher, Attorney at Law, Longview, for Appellee.

Before Morriss, C.J., Burgess and Stevens, JJ.

OPINION

Opinion by Justice Burgess

Appellant Lisa Sullivan (Lisa) appeals from an order denying her motion to dismiss for lack of standing and an order granting Appellee Mandy Robert's (Mandy's) petition for adoption. Because we find that sufficient evidence supports the trial court's conclusion (1) that Mandy had standing to pursue the adoption and (2) that the adoption was in the child's best interest, we affirm the judgment of the trial court.

I. Background

Lisa and Mandy, both residents of Texas, began dating in December 2008. In August 2009, Lisa legally changed her surname to Mandy's surname. On November 21, 2009, Lisa and Mandy travelled to Kent Falls, Connecticut, to get married. After the wedding, Lisa and Mandy returned to Texas to live as a married couple.

Following their marriage, Lisa and Mandy decided that they wanted to adopt a child. Several years later, Lisa filed a petition to adopt T.E.R,¹ an infant child, and the trial court granted her petition on January 22, 2014. When T.E.R. was three and one-half years old, Mandy filed for divorce. In their agreed final divorce decree, the trial court found that Lisa was T.E.R.'s parent pursuant to the January 22, 2014, order granting the adoption. The court also gave Mandy and Lisa joint managing conservatorship of T.E.R., with Lisa having the exclusive right to designate T.E.R.'s primary residence within the State of Texas. The decree also stated, under the heading "Mutual Releases," that the "release [did] not include any future claims of adoption."

On May 29, 2018, Mandy filed an original petition for adoption of child, seeking to adopt T.E.R. On June 25, 2018, Lisa filed a motion to dismiss Mandy's petition for adoption for lack of standing. On February 6, 2019, Mandy filed an amended petition for adoption and a general denial to Lisa's motion to dismiss. On February 22, 2019, Lisa filed a motion for judgment as a matter of law, arguing that the substantive law did not permit Mandy to adopt T.E.R. On March 18, 2019, after finding that Mandy had produced sufficient evidence to prove she had standing to file her petition, the trial court entered an order denying Lisa's motion to dismiss for lack of standing and denying her motion for judgment as a matter of law. On May 10, 2019, the trial court found that Mandy's adoption of T.E.R. was in T.E.R.'s best interest and entered an order granting adoption. The trial court entered its findings of fact and conclusions of law on June 26, 2019.

II. The Trial Court Did Not Err When It Found that Mandy had Standing to Proceed with the Adoption of T.E.R. Pursuant to Section 102.005(5) of the Texas Family Code

In her first point of error, Lisa contends that the trial court erred when it found that Mandy had standing to pursue the adoption of T.E.R. We disagree.

1. Standard of Review Applicable to Standing Issues Resolved at Trial

In the present case, the trial court found that Mandy had standing pursuant to Section 102.005(5) of the Texas Family Code, which provides,

An original suit requesting only an adoption or for termination of the parent-child relationship joined with a petition for adoption may be filed by ... (5) another adult whom the court determines to have had substantial past contact with the child sufficient to warrant standing to do so.

TEX. FAM. CODE ANN. § 102.005(5). Typically, "a party's standing to seek relief is a question of law we review de novo. " In re S.M.D. , 329 S.W.3d 8, 12–13 (Tex. App.—San Antonio 2010, pet. dism'd). This is particularly so in instances where standing is conferred by statute because resolution of the issue turns on statutory construction. In re S.A.M. , 321 S.W.3d 785, 788 (Tex. App.—Houston [14th Dist.] 2010, no pet.) (noting that, "[i]n statutory standing cases, ... the analysis is a straight statutory construction of the relevant statute to determine upon whom the Texas Legislature conferred standing and whether the claimant in question falls within that category").

Nevertheless, some statutes "provide[ ] a list of person[s] who automatically have standing to bring an original suit," whereas others list individuals who have standing upon proving additional statutory requirements by a preponderance of the evidence. Von Behren v. Von Behren , 800 S.W.2d 919, 920 (Tex. App.—San Antonio, 1990, pet. dism'd) (citing Tex. Family Code & Commentary , 17 TEX. TECH. L. REV. 1045, 1072 (1986) (Commentary by John J. Sampson) (discussing Section 11.03(b)—now Section 102.004(b)—of the Texas Family Code )).² Section 102.005(5) grants standing to persons who can prove the additional statutory requirement of "substantial past contact" with the child by a preponderance of the evidence.

S.M.D. , 329 S.W.3d at 13. What constitutes "substantial past contact" is not defined by statute or caselaw, In re C.M.C. , 192 S.W.3d 866, 871 [Tex.App.—Texarkana 2006),³ and the inquiry into whether a party has had "substantial past contact" with a child is fact-intensive and should focus on the amount of actual contact. Id. ; see also Chavez v. Chavez , 148 S.W.3d 449, 456 (Tex. App.—El Paso 2004, no pet.) (grandparents had standing to intervene when children lived with them for over a year); In re A.M. , 60 S.W.3d 166, 168 (Tex. App.—Houston [1st Dist.] 2001, no pet.) (foster parents had standing when seventeen-month-old child resided with them for fourteen months); In re M.T. , 21 S.W.3d 925, 926 (Tex. App.—Beaumont 2000, no pet.) (foster parents had standing to intervene after children lived with them for fourteen months); In re Hildalgo , 938 S.W.2d 492, 495–96 (Tex. App.—Texarkana 1996, no writ) (stepmother had standing to file petition for managing conservatorship when she and child were close since child's birth and child resided with her). Accordingly, although standing is typically a pure question of law, whether a party has standing to adopt under Section 102.005(5) is a mixed question of law and fact.⁴

In cases involving mixed questions of law and fact, we apply a hybrid standard that incorporates elements of both factual and legal standards of review. Delfingen U.S.-Tex., L.P. v. Valenzuela , 407 S.W.3d 791, 799 (Tex. App.—El Paso 2013, no pet.) ; see also , Iliff v. Iliff , 339 S.W.3d 126, 133–34 (Tex. App.—Austin 2009), aff'd , 339 S.W.3d 74 (Tex. 2011) (holding that in considering "issues of child support, division of the marital estate, and child custody, possession, and visitation," appellate courts "employ a hybrid analysis").⁵ Under this standard,

[T]he appellate court defers to the trial court's factual determinations supported by the record and reviews legal conclusions de novo. The reviewing court does not engage in its own factual review, but decides whether the record supports the trial court's resolution of factual matters. If the record supports the trial court's resolution of factual matters, the reviewing court is not at liberty to disturb them. A reviewing court instead determines whether the trial court properly applied the law to the facts in reaching its legal conclusion. It does not defer to the trial court on questions of law.

Valenzuela , 407 S.W.3d at 799 (citations omitted); see Iliff , 339 S.W.3d at 134 (holding that appellate courts "engage in a two-pronged inquiry asking first, whether the trial court had sufficient information upon which to exercise its discretion, and second, whether the trial court erred in its application of discretion").

2. Summary

Consequently, because the issue of whether a person has standing under Section 102.005(5) of the Family Code is a mixed question of fact and law, we review the trial court's ruling in this case under the hybrid standard. Under that standard, we first evaluate whether there is any supporting evidence in the record that the petitioner had past contact with the child. If there is no evidence that the petitioner had any past contact with the child, then we will find that the petitioner has failed to establish standing to sue under Section 102.005(5) as a matter of law. If the evidence is undisputed about the nature and degree of the petitioner's past contact, then we determine whether that evidence constitutes "substantial past contact" as a matter of law. Under either of the above scenarios, we give no deference to the trial court's legal conclusion and decide the question de novo.

However, if there is a dispute about the nature and degree of the petitioner's past contact with the child, then the trial court must consider the evidence and resolve that fact question. On appeal, we will "not engage in [our] own factual review, but [will] decide[ ] whether the record supports the trial court's resolution of factual matters." Valenzuela , 407 S.W.3d at 799–800. If we determine that there is support for the trial court's findings of fact, then we will decide whether those facts rise to the level of "substantial past contact" as a matter of law. In deciding that legal issue, we give no deference to the trial court's legal conclusion but decide the question de novo.⁶

3. Evaluation of Legal and Factual Sufficiency Under the Abuse-of-Discretion Standard of Review

In this case, the trial court heard the evidence and made findings of fact regarding the nature and degree of Mandy's past contact with T.E.R.⁷ Lisa did not challenge those findings in the trial court. Nevertheless, she argues on appeal that "[t]here is insufficient evidence in the record that Mandy Roberts has had substantial past contact with the adoptive child beyond scheduled access and visitation."⁸ Rule 33.1(d) of the Rules of Appellate Procedure provides:

Sufficiency of evidence complaints in civil nonjury cases. In a civil nonjury case, a

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