In re M.P.B.

• Decision Date: 20 June 2008
• Docket Number: No. 05-07-00093-CV.,05-07-00093-CV.
• Citation: 257 S.W.3d 804
• Parties: In the Interest of M.P.B.
• Court: Texas Court of Appeals

257 S.W.3d 804

In the Interest of M.P.B.

No. 05-07-00093-CV.

Court of Appeals of Texas, Dallas.

June 20, 2008.

Cynthia L. Stagner, Edward C. Green, Denison, TX, for Appellant.

Georganna L. Simpson, Law Offices of Georganna L. Simpson, Dallas, Donald Linous Jarvis, Attorney At Law, Sherman, TX, for Appellee.

Donald Linous Jarvis, for Jerry Britt.

Before Justices MORRIS, WRIGHT, and MOSELEY.

OPINION

Opinion by Justice WRIGHT.

M.P.B.'s father appeals the trial court's order appointing M.P.B.'s grandmother as the non-parent primary joint managing conservator and Father as a parent joint managing conservator. In three issues, Father contends (1) Grandmother did not have standing to bring suit, (2) the trial court denied him the right to a jury trial, and (3) Grandmother failed to overcome the statutory presumption that it is in a child's best interest to have custody awarded to a parent. We overrule Father's issues and affirm the trial court's order.

Background

M.P.B. was born April 19, 2003 in Texas. On June 25, 2003, the trial court entered an order declaring Father as the father of M.P.B., and appointing Mother and Father as joint managing conservators with Mother as the primary conservator. Mother and M.P.B. lived with Grandmother for a short time, and then in an apartment near Grandmother's house. Father moved to California and had limited contact with M.P.B. When M.P.B. was twenty months old, Mother died in a house fire. A few days later, Grandmother filed suit seeking appointment as the primary conservator of M.P.B. Thereafter, Father filed a petition for writ of habeas corpus seeking possession of M.P.B. After the trial court denied Father's petition for writ of habeas corpus, Father countersued seeking to be appointed primary managing conservator. Father also filed a motion to dismiss Grandmother's petition on the grounds that she lacked standing to file an original suit seeking conservatorship, which, after a hearing, the trial court denied. In the meantime, M.P.B's grandfather, Grandmother's ex-husband, and his wife intervened seeking visitation one weekend a month. Following a bench trial, the trial court appointed Grandmother as the non-parent primary joint managing conservator with the exclusive right to designate M.P.B.'s primary residence, and Father as a parent joint managing conservator. The trial court also ordered visitation one weekend a month for Grandfather.¹ This appeal followed.

Standing

In his first issue, Father contends Grandmother lacked standing to file an original suit requesting appointment as a joint managing conservator. Grandmother responds that she has standing to file an original suit affecting the parent-child relationship pursuant to section 102.003(a)(9) and section 102.004(a)(1) of the family code. After reviewing the record, we agree with Grandmother that she has standing to file an original suit under section 102.003(a)(9).

The question of who has standing to bring an original suit affecting the parent-child relationship seeking managing conservatorship is a threshold issue. In re SSJ.-J, 153 S.W.3d 132, 134 (Tex.App.-San Antonio 2004, no pet.); In re Pringle, 862 S.W.2d 722, 724 (Tex.App.-Tyler 1993, no writ). Standing is a component of subject matter jurisdiction and is a constitutional prerequisite to maintaining a lawsuit under Texas law. Rupert v. McCurdy, 141 S.W.3d 334, 338 (Tex.App.-Dallas 2004, no pet.) (citing Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443-44 (Tex. 1993)). Standing focuses on who is entitled to bring an action and is determined at the time suit is filed in the trial court. See M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex.2001); Rupert, 141 S.W.3d at 340. A party's standing to pursue a cause of action is a question of law. Rupert, 141 S.W.3d at 338. A court deciding a plea to the jurisdiction should consider evidence and review the substance of the legal claims only to the extent necessary to determine whether subject-matter jurisdiction over the case exists. See Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 555 (Tex.2000). When, as here, the trial court makes no separate findings of fact or conclusions of law, we must draw every reasonable inference supported by the record in favor of the trial court's judgment. See Worford v. Stamper, 801 S.W.2d 108, 109 (Tex.1990). We review the trial court's implied factual findings for legal and factual sufficiency, and we review the trial court's implied legal conclusions de novo. See id. at 339.

Section 102.003(a)(9) of the family code provides that "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" may file an original suit requesting managing conservatorship. See TEX. FAM.CODE ANN. § 102.003(a)(9) (Vernon Supp.2007). "In computing the time necessary for standing under Subsections (a)(9), (11), and (12) the court may not require that the time be continuous and uninterrupted, but shall consider the child's principal residence during the relevant time preceding the date of commencement of the suit." TEX. FAM.CODE ANN. § 102.003(b) (Vernon Supp.2007). A "principal residence" is (1) a fixed place of abode; (2) occupied consistently over a substantial period of time; (3) which is permanent rather than temporary. Doncer v. Dickerson, 81 S.W.3d 349, 362 (Tex. App.-El Paso 2002, no pet.) (citing Snyder v. Pitts, 150 Tex. 407, 241 S.W.2d 136, 141 (1951) (articulating elements of residence under general venue statute)). A determination of standing under this section is necessarily fact specific and resolved on an ad hoc basis. Doncer, 81 S.W.3d at 362.

Here, the record shows that when Grandmother filed suit on January 26, 2005, M.P.B. was twenty-one-months old. M.P.B. lived with Mother at Grandmother's house for about three months before moving to a nearby apartment in June 2003. After that time, M.P.B. continued to have her own room at Grandmother's house and spent "significant" periods of time with Grandmother. Grandmother explained that M.P.B. spent more time at Grandmother's house than she did at Mother's apartment. Grandmother testified that M.P.B. spent "every weekend of her life" at Grandmother's. The weekends "may start on Thursday or they may start on Friday. We always go through Sunday and we would always have her one other night during the week on a Wednesday." In fact, M.P.B. was with Grandmother at her house when Mother was killed in the house fire. Grandmother further testified that if she was off of work for "spring break or for vacation in the summer or Christmas break, [M.P.B.] is always with us." When Grandmother took "three weeks at Christmas ... [and] an additional week of vacation, M.P.B. was with us the whole time."

According to Grandmother, M.P.B. spent more time at her house than at Mother's apartment. Grandmother also testified she was significantly involved in "raising" M.P.B. She clothed her, taught her to do her ABC's and to spell her name, and was "as much a primary caregiver, if not more" than Mother. This pattern was from M.P.B's birth until Mother's death.

After reviewing the record in this case, we conclude the evidence is legally and factually sufficient to support the implied findings there were at least six months when Grandmother had actual care, control, and possession of M.P.B and there were at least six months when M.P.B's principal residence was Grandmother's home. Although Grandmother's actual care, control, and possession of M.P.B. was not exclusive, with Mother's consent, Grandmother provided M.P.B. with a fixed place of abode, occupied consistently over a substantial period of time, that was permanent rather than temporary. The record does not suggest this pattern of possession and caregiving was intended to be a temporary arrangement to facilitate momentary housing difficulties, inconvenient travel schedules, the pursuit of higher education, or the inability to provide child care. Thus, we conclude that under the specific facts of this case, the evidence is sufficient to support the trial court's threshold determination that Grandmother had standing to file an original suit requesting managing conservatorship. See Doncer, 81 S.W.3d at 361-62 (step-mother acquired standing under section 102.003(a)(11) by establishing child's principal residence was with her and father one-half of the time over a two-year visitation cycle).

In reaching this determination, we necessarily disagree with Father's contention that Troxel v. Granville, 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000), and In re Karen Mays-Hooper, 189 S.W.3d 777 (Tex.2006), require a different conclusion. Both Troxel and Mays-Hooper involved grandparent visitation. In Troxel, the United States Supreme Court determined a Washington statute that allowed any person to petition the court for visitation rights at any time and authorized the court to grant visitation rights if it was in the best interest of the child was unconstitutional because, in the absence of any special factors justifying the State's interference, the statute, as applied, violated the mother's fundamental right to make decisions concerning the rearing of her two daughters. See Troxel, 530 U.S. at 68, 120 S.Ct. 2054. In Mays-Hooper, the Texas Supreme Court applied Troxel to essentially the same facts and determined a grandmother was not entitled to visitation when there was no evidence the mother was unfit, the child's health or emotional well-being would suffer from the mother's decision regarding visitation with the grandmother, or that the mother intended to completely exclude grandmother's access to the child. Mays-Hooper, 189 S.W.3d at 777-78. Because the issue in this case is whether Grandmother had standing under section 102.003(a)(9) of the Texas Family Code to file suit requesting appointment as a managing conservatorship of...