In re K.D.H.

• Decision Date: 03 April 2014
• Docket Number: No. 14–13–00006–CV.,14–13–00006–CV.
• Citation: 426 S.W.3d 879
• Parties: In the Interest of K.D.H., a Child.
• Court: Texas Court of Appeals

426 S.W.3d 879

In the Interest of K.D.H., a Child.

No. 14–13–00006–CV.

Court of Appeals of Texas,

Houston (14th Dist.).

April 3, 2014.

Patricia Ruby Billings, Humble, for Appellant.

Daniel Higgins, Laporte, pro se.

Jennifer Kegeresse, Laporte, pro se.

Panel consists of Chief Justice FROST and Justices BOYCE and JAMISON.

OPINION

KEM THOMPSON FROST, Chief Justice.

Today, for the first time, this court addresses the legal standard for establishing standing under section 102.004(a)(1) of the Texas Family Code. We conclude that, to have standing under this statute, a grandparent or other relative within the third degree by consanguinity must present proof that, when considered in the light most favorable to the petitioner, would enable reasonable and fair-minded people to find that the order requested is necessary because the child's circumstances on the date suit was filed would significantly impair the child's physical health or emotional development. We conclude that the grandmother in this appeal demonstrated the requisite standing under this statute to bring suit seeking sole managing conservatorship of her granddaughter and that the trial court erred in determining that the grandmother lacked standing. Accordingly, we reverse and remand.

I. Factual and Procedural Background

Appellant Zoe Higgins (“Grandmother”) is the paternal grandmother of the minor child who is the subject of this appeal (“Child”). After the Child's mother (“Mother”) tested positive for marijuana while pregnant with the Child, the Texas Department of Family and Protective Services (hereinafter the “Department”) made arrangements for the Child to be placed with the Grandmother.¹ From shortly after the Child's birth in October 2011 until February 2, 2012, the Grandmother cared for the Child at the Grandmother's home. The day the Child was returned to the care of the Child's Mother, the Grandmother filed an original suit affecting the parent-child relationship, seeking to be appointed the sole managing conservator of the Child. The Grandmother invoked section 102.004(a)(1) of the Texas Family Code as a basis for her standing to file suit.² In support of standing, the Grandmotherfiled an affidavit, in which she testified, among other things, that the Child's father (“Father”) was incarcerated at the time the suit was filed and that the Mother had two previous convictions for driving while intoxicated (“DWI”) and one previous conviction for child endangerment. The Grandmother asserted that it is in the best interest of the Child that the Grandmother be appointed as the Child's sole managing conservator. The Grandmother further alleged that the Child's parents have a history of child neglect and physical abuse directed at the Child. The Grandmother filed a written request for a jury trial and paid the jury fee.

The Mother filed a plea to the jurisdiction, asserting that the Grandmother had no standing to bring suit. The Mother did not submit any evidence in support of the plea to the jurisdiction. In the Grandmother's response in opposition, the Grandmother presented documentary evidence from the Department as well as certified copies of judgments reflecting the Mother's various criminal convictions. The trial court conducted a hearing on the plea to the jurisdiction.

The Grandmother appeared at the hearing and the Child's parents each appeared pro se. The Grandmother testified at the hearing. The Mother and Father made arguments to the trial court but did not testify or offer any other evidence. ³ The trial court sustained the Mother's plea to the jurisdiction and dismissed the Grandmother's suit based on lack of standing. The Grandmother appeals from the trial court's dismissal order.

II. Standard of Review

Standing, which is a component of subject-matter jurisdiction, is a threshold issue in a custody proceeding. In re Vogel, 261 S.W.3d 917, 920 (Tex.App.-Houston [14th Dist.] 2008, orig. proceeding). Whether a person has standing is a question of law, and we review an order dismissing for lack of standing under the de novo standard. See In re I.M.S., No. 14–07–00638–CV, 2008 WL 5059179, at *2 (Tex.App.-Houston [14th Dist.] Dec. 2, 2008, no pet.) (mem. op.); In re Vogel, 261 S.W.3d at 920–21. We review the trial court's interpretation of applicable statutes de novo. See Johnson v. City of Fort Worth, 774 S.W.2d 653, 655–56 (Tex.1989).

III. Issue and Analysis

In a single appellate issue, the Grandmother asserts that the trial court erred in determining that she lacked standing under section 102.004(a)(1) of the Texas Family Code.⁴ We first address the legal standard for making this determination and then we decide whether the trial court erred in ruling that the Grandmother lacks standing.

A. What standard applies in determining whether a grandparent or other

relative of the child within the third degree by consanguinity has standing under Texas Family Code section 102.004(a)(1)?

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] ). Section 102.004(a) of the Texas Family Code, entitled “Standing for Grandparent or Other Person,” states:

(a) In addition to the general standing to file suit provided by Section 102.003, a grandparent, or another relative of the child related within the third degree by consanguinity, may file an original suit requesting managing conservatorship if there is satisfactory proof to the court that:

(1) the order requested is necessary because the child's present circumstances would significantly impair the child's physical health or emotional development; or

(2) both parents, the surviving parent, or the managing conservator or custodian either filed the petition or consented to the suit.

Tex. Fam.Code Ann. § 102.004(a) (West 2014).

The Grandmother has not cited, and research has not revealed, any cases from the Supreme Court of Texas or this court that address what is necessary for there to be “satisfactory proof to the court” in the context of section 102.004(a), and the issue appears to be one of first impression for this court. ⁵ Several sister courts of appeals have concluded that, under section 102.004(a), the trial court makes findings as to whether the petitioner proved the proposition in question and that on appeal a party may challenge the legal or factual sufficiency of the evidence supporting these findings. See, e.g., Medrano v. Zapata, No. 03–12–00131–CV, 2013 WL 6921500, at *5–9 (Tex.App.-Austin Dec. 31, 2013, no. pet. h.) (mem. op.) (concluding that “satisfactory proof to the court” as used in section 102.004(a) means proof by a preponderance of the evidence and that, under this statute, the trial court makes findings as to whether the petitioner proved the proposition in question by a preponderance of evidence, the legal or factual insufficiency of which may be challenged on appeal).

In construing section 102.004, our objective is to determine and give effect to the Texas Legislature's intent. See Nat'l Liab. & Fire Ins. Co. v. Allen, 15 S.W.3d 525, 527 (Tex.2000). We must ascertain that intent, if possible, from the language the Texas Legislature used in the statute and not look to extraneous matters for an intent the statute does not state. Id. If the meaning of the statutory language is unambiguous, we adopt the interpretation supported by the plain meaning of the provision's words. St. Luke's Episcopal Hosp. v. Agbor, 952 S.W.2d 503, 505 (Tex.1997). When statutory language is unambiguous and yields only one reasonable interpretation, this court must interpret the statute according to its plain meaning. See Iliff v. Iliff, 339 S.W.3d 74, 79 (Tex.2011). We must not engage in forced or strained construction; instead, we must defer to the plain sense of the words the Texas Legislature chose. See St. Luke's Episcopal Hosp., 952 S.W.2d at 505.

In section 102.004, the Texas Legislature provided a basis for standing in addition to the standing provided by section 102.003. SeeTex. Fam.Code Ann. § 102.004(a). The legal term “standing” has a technical and particular meaning. See Bland Indep. School Dist. v. Blue, 34 S.W.3d 547, 553–55 (Tex.2000). Words that have acquired a technical or particular meaning, whether by legislative definition or otherwise, shall be construed accordingly. Tex. Gov't Code Ann. § 311.011(b) (West 2014); In re Allen, 366 S.W.3d 696, 706 (Tex.2012). We presume the Texas Legislature enacted the current version of section 102.004 with complete knowledge of the existing law and with reference to it. See id.

Ordinarily, standing is based on the existence of certain facts, not the existence of certain proof. For example, an original suit seeking appointment as sole managing conservator may be filed by “a person, other than a foster parent, who has 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.” Tex. Fam.Code Ann. § 102.003(a)(9) (West 2014). An individual filing such a suit and claiming standing under this statute need only file her petition and allege that she is a person, other than a foster parent, who has 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. See id.; Tex. Dep't of Parks and Wildlife v. Miranda, 133 S.W.3d 217, 226 (Tex.2004). In such a case, pleading a proper basis for standing is sufficient to show standing, unless a party challenges standing and submits evidence showing the non-existence of a fact necessary for standing. ⁶See Miranda, 133 S.W.3d at 227. In that event, the petitioner must submit evidence raising a fact issue on the challenged elements to avoid a dismissal for lack of standing. See id. at 227–28. Suits affecting the parent-child relationship are...