In re Lankford, 12-15-00149-CV

• Decision Date: 24 August 2016
• Docket Number: NO. 12-15-00149-CV,12-15-00149-CV
• Citation: 501 S.W.3d 681
• Parties: In re: Charles Dwayne Lankford and Roberta Gresham, Relators
• Court: Texas Court of Appeals

501 S.W.3d 681

In re: Charles Dwayne Lankford and Roberta Gresham, Relators

NO. 12-15-00149-CV

Court of Appeals of Texas, Tyler.

Opinion delivered August 24, 2016

Thomas W. Deaton, for Real Parties in Interest.

Robert L. Flournoy & Robert T. Cain, for Relators.

Panel consisted of Worthen, C.J., Hoyle, J., and Neeley, J.

OPINION

JAMES T. WORTHEN, Chief Justice

Charles Dwayne Lankford and Roberta Gresham seek mandamus relief from the trial court's May 12, 2015 orders overruling their pleas to the jurisdiction and Lankford's motion to dismiss, and designating Stephanie Smith as a joint managing conservator of T.D.L.¹ We deny the petition.

BACKGROUND

T.D.L. is the fourteen year old biological child of Charles Dwayne Lankford and Karla Frith, who were divorced in 2003. T.D.L. started living with Lankford when she was three months old after Lankford and her biological mother separated. From 2003 until sometime in 2007, Lankford worked "outside of the States." During that time, Roberta Gresham, who is Lankford's mother and T.D.L.'s grandmother, lived in Lankford's house with T.D.L.

Lankford and Stephanie Smith married in 2008, but had been together since sometime in 2007. T.D.L. was approximately five years old when the relationship began. From 2007 to 2012, Lankford worked out of town, and was away from home between fifty and eighty percent of the time. Smith and T.D.L. remained in the family home. In July 2012, Lankford began working in Afghanistan.² According to Lankford, this was "a decision by [him] that [he and Smith] discussed and agreed upon." Lankford elected expatriate status, which prohibits him from being in the United States more than thirty-five days a year. Smith and T.D.L. again remained in the family home.

In November 2014, Smith filed for divorce at Lankford's request. Her petition included a motion to modify the existing conservatorship order to appoint Smith and Lankford as joint managing conservators of T.D.L. Smith also requested that she be designated as the conservator having the exclusive right to designate T.D.L.'s primary residence. She alleged that she has standing under Texas Family Code Section 102.003(a)(9) to seek modification of the order.

Through various errors and misunderstandings that occurred in prior proceedings, the existing conservatorship order, which was rendered in 2004, made Gresham managing conservator and Lankford and Frith possessory conservators. However, Lankford believed the three were joint managing conservators. He also believed that he had the right to designate T.D.L.'s residence.

In December 2014, Lankford and Gresham filed a motion to modify the 2004 order to make them joint managing conservators.³ Additionally, they asserted that Smith's motion to modify must be filed in the pre-existing suit affecting the parent-child relationship (SAPCR). Smith moved to sever the conservatorship issue and consolidate it with the SAPCR. The trial court granted the motion. Lankford filed a plea to the jurisdiction and motion to dismiss alleging Smith lacked standing. Gresham raised the issue in her answer. After a hearing, the trial court concluded that Smith has standing under section 102.003(a)(9) and, by written order, overruled the pleas to the jurisdiction and the motion to dismiss. The trial court also rendered temporary orders designating Smith as a joint managing conservator of T.D.L. This original proceeding followed.

PREREQUISITES TO MANDAMUS

Mandamus is an extraordinary remedy that is available only when the trial court has clearly abused its discretion and there is no adequate remedy by appeal. In re Prudential Ins. Co. of Am. , 148 S.W.3d 124, 135–36, 137 (Tex.2004) (orig. proceeding). A clear abuse of discretion occurs when a trial court "reaches a decision so arbitrary and unreasonable as to amount to a clear and prejudicial error of law." Walker v. Packer , 827 S.W.2d 833, 839 (Tex.1992) (orig. proceeding). A trial court has no discretion in determining what the law is or applying the law to the facts. Id. Therefore, a clear failure by the trial court to analyze or apply the law correctly will constitute an abuse of discretion, and may result in appellate reversal by extraordinary writ. Id. at 840.

The improper denial of a plea to the jurisdiction is generally not reviewable by mandamus because it involves a question of law that can be addressed by ordinary appeal. See In re State Bar of Tex. , 113 S.W.3d 730, 734 (Tex.2003) (orig. proceeding). However, mandamus review is appropriate when there is a jurisdictional dispute in a proceeding involving conservatorship issues. See Geary v. Peavy , 878 S.W.2d 602, 603 (Tex.1994) (orig. proceeding); In re Green , 352 S.W.3d 772, 774 (Tex.App.–San Antonio 2011, orig. proceeding). This is due to the unique and compelling circumstances presented when the trial court decides issues of conservatorship. See Geary , 878 S.W.2d at 603. Because temporary orders are not appealable, mandamus is an appropriate remedy when a trial court abuses its discretion in issuing temporary orders in a SAPCR. See In re Derzapf , 219 S.W.3d 327, 335 (Tex.2007) (orig. proceeding).

STANDING

A party seeking conservatorship of a child must have standing to do so. In re McDaniel , 408 S.W.3d 389, 396 (Tex.App.–Houston [1st Dist.] 2015, orig. proceeding). Because standing is implicit in the concept of subject matter jurisdiction, it is a threshold issue in a conservatorship proceeding. In re N.L.D. , 344 S.W.3d 33, 37 (Tex.App.–Texarkana 2011, no pet.). A party's lack of standing deprives the court of subject matter jurisdiction and renders subsequent trial court action void. In re Smith , 260 S.W.3d 568, 572 (Tex.App.–Houston [14th Dist.] 2008, orig. proceeding).

Whether a trial court has subject matter jurisdiction is a question of law, which we review de novo. In re K.D.H. , 426 S.W.3d 879, 882 (Tex.App.–Houston [14th Dist.] 2014, no pet.). In our review, we must take as true all evidence favorable to the challenged party, indulge every reasonable inference, and resolve any doubts in the challenged party's favor. McDaniel , 408 S.W.3d at 397.

The Texas Legislature has provided a comprehensive framework for standing in the context of suits involving the parent-child relationship. See TEX. FAM. CODE ANN. §§ 102.003 –.007 (West 2014 & Supp. 2016). When standing has been statutorily conferred, the statute itself serves as the proper framework for the standing analysis. In re H.G. , 267 S.W.3d 120, 123 (Tex.App.–San Antonio 2008, pet. denied). Thus, the party seeking relief must allege and establish standing within the parameters of the language used in the relevant statute. Id. at 124.

We review the trial court's interpretation of the applicable statutes de novo. In re Russell , 321 S.W.3d 846, 856 (Tex.App.–Fort Worth 2010, orig. proceeding [mand. denied] ). We must give effect to the legislature's intent from the language used in the statute and not look to extraneous matters for an intent the statute does not state. In re Shifflet , 462 S.W.3d 528, 536 (Tex.App.–Houston [1st Dist.] 2015, orig. proceeding). We presume that the legislature chooses a statute's language with care, and includes each word chosen for a purpose while purposefully omitting words not chosen. In re M.N. , 262 S.W.3d 799, 803 (Tex.2008). We use definitions prescribed by the legislature and any technical or particular meaning the words have acquired. TEX. GOV'T CODE ANN. § 311.011(b) (West 2013). Otherwise, we construe the statute's words according to their plain and common meaning. City of Rockwall v. Hughes , 246 S.W.3d 621, 626 (Tex.2008). If the meaning of the statutory language is unambiguous, the interpretation supported by the plain meaning must be adopted. Shifflet , 462 S.W.3d at 536.

TEXAS FAMILY CODE SECTION 102.003(a)(9)

A person who, at the time of filing, has standing to sue under Chapter 102 of the family code may seek modification of an existing conservatorship order. TEX. FAM. CODE ANN. § 156.002(b) (West 2014). A person has standing to sue under Chapter 102 if, as alleged here, she is not a foster parent and "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." Id. § 102.003(a)(9) (West Supp. 2016). A determination of standing under subsection (a)(9) is necessarily fact-specific and must be made on a case-by-case basis. Shifflet , 462 S.W.3d at 538 ; In re M.P.B. , 257 S.W.3d 804, 809 (Tex.App.–Dallas 2008). The purpose of subsection (a)(9) is to create standing for those who have developed and maintained a relationship with a child over time. In re E.G.L. , 378 S.W.3d 542, 547 (Tex. App.–Dallas 2012, pet. denied) ; In re Y.B. , 300 S.W.3d 1, 4 (Tex.App.–San Antonio 2009, pet. denied) ; see also T.W.E. v. K.M.E. , 828 S.W.2d 806, 808 (Tex.App.–San Antonio 1992, no writ) (explaining that purpose of former version of section 102.003(a)(9) was to "create standing for those who have developed and maintained a relationship with the child over time").

ACTUAL CONTROL—THE SPLIT OF AUTHORITY

Lankford and Gresham do not dispute that Smith had care and possession of T.D.L. for the required time period. Nor do they argue that Smith lacks standing under the trial court's construction of the statute. Instead, they assert that the trial court applied an incorrect definition of "control" as that term is used section 102.003(a)(9). As a result, they maintain, the trial court abused its discretion when it ruled that Smith has standing under subsection (a)(9).

"Control" is not defined in the family code, and neither the Texas Supreme Court nor this Court has defined the term in this context. Consequently, Lankford and Gresham have surveyed the cases defining or applying the term as used in section 102.003(a)(9). They inform us that the cases are sometimes said to represent two lines of authority among the courts of appeals, differing principally on what constitutes "control"...