In re Ssj-J

• Decision Date: 24 November 2004
• Docket Number: No. 04-03-00741-CV.,04-03-00741-CV.
• Parties: In the Interest of SSJ-J.
• Court: Texas Court of Appeals

153 S.W.3d 132

In the Interest of SSJ-J.

No. 04-03-00741-CV.

Court of Appeals of Texas, San Antonio.

November 24, 2004.

John D. Wennermark, Law Office of John D. Wennermark, San Antonio, for appellant.

Charles K. Tabet, Law Office of Charles K. Tabet, Cedric L. Johnson, San Antonio, for appellee.

Sitting: CATHERINE STONE, Justice, SARAH B. DUNCAN, Justice, KAREN ANGELINI, Justice.

OPINION

Opinion by KAREN ANGELINI, Justice.

Charles and Beverly Johnson, maternal step-grandfather and natural grandmother of SSJ-J, filed suit against Cedric Johnson, SSJ-J's biological father, seeking to be appointed managing conservators of SSJ-J. The death of SSJ-J's mother prompted the filing of the suit. The trial court granted Cedric's motion to dismiss for lack of standing. Charles and Beverly appeal. We reverse and remand.

FACTUAL AND PROCEDURAL BACKGROUND

Charles Johnson is SSJ-J's step-grandfather by virtue of his marriage to SSJ-J's maternal grandmother, Beverly. SSJ-J's natural parents are Beverly's daughter, Shanequa L. Johnson, and Cedric Johnson. Although Shanequa and Cedric never married, there is a court order establishing paternity between SSJ-J and Cedric. In addition to establishing paternity, the trial court's order appointed Shanequa and Cedric joint managing conservators of SSJ-J, with Shanequa having the right to establish SSJ-J's primary residence. Upon Shanequa's death, Charles and Beverly filed an Original Petition in Suit Affecting the Parent-Child Relationship seeking to be named managing conservators of SSJ-J. SSJ-J was eleven years old at the time the suit was filed. In an affidavit attached to the petition, Beverly stated that SSJ-J had lived in her home and under her care, custody and control since she was born. Cedric filed a plea in abatement contending that Charles and Beverly lacked standing to bring suit.

Thereafter, Charles filed a First Amended Original Petition in Suit Affecting Parent-Child Relationship, dropping Beverly as a party. In his amended petition, Charles alleges that appointment of Cedric as sole managing conservator or joint managing conservator with exclusive right to establish the child's residence would not be in the child's best interest and would significantly impair the child's physical health or emotional development. Charles also filed an affidavit similar to the one previously filed by Beverly stating that SSJ-J had lived in his home and under his care, custody and control since she was born. He also stated that the child's physical health or emotional development would be significantly impaired if she were placed in the primary care and custody of Cedric. Beverly then filed a Petition in Intervention of Grandparent in Suit Affecting the Parent-Child Relationship.¹ She also alleged that appointment of Cedric as sole managing conservator or joint managing conservator with exclusive right to establish the residence of the child would not be in the child's best interest because it would significantly impair the child's physical health or emotional development. And, Beverly filed an affidavit with similar allegations. Cedric then filed another plea in abatement and a motion to dismiss for lack of standing. The trial court considered Cedric's plea in abatement and motion to dismiss at a hearing in which no live testimony was taken. Thus, the trial court had before it the affidavits of Charles and Beverly and arguments of counsel. At the conclusion of the hearing, the trial court granted Cedric's plea in abatement and motion to dismiss for lack of standing. Charles and Beverly appeal.

DISCUSSION

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 Pringle, 862 S.W.2d 722, 724 (Tex.App.-Tyler 1993, no writ). Before determining the merits of a dispute, a trial court should determine whether a party has standing. Id. Standing is implicit in the concept of subject-matter jurisdiction. Tex. Ass'n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443 (Tex.1993). And, standing presents a question of law. Brunson v. Woolsey, 63 S.W.3d 583, 587 (Tex.App.-Fort Worth 2001, no pet.). As with an order of dismissal for lack of subject-matter jurisdiction, we review an order of dismissal for lack of standing by construing the pleadings in favor of the plaintiff and looking to the pleader's intent. Tex. Ass'n of Bus., 852 S.W.2d at 446. When considering a plea to the jurisdiction, the trial court should look solely at the pleadings and must take all allegations in the pleadings as true. Wash. v. Fort Bend Indep. Sch. Dist., 892 S.W.2d 156, 159 (Tex.App.-Houston [14th Dist.] 1994, writ denied). Thus, we review the issue de novo. Doncer v. Dickerson, 81 S.W.3d 349, 353 (Tex.App.-El Paso 2002, no pet.).

Charles and Beverly contend that they have standing to bring suit pursuant to section 102.003(a)(9) of the Texas Family Code. Section 102.003, entitled "General Standing to File Suit," is the general standing provision for filing an original suit affecting the parent-child relationship. Section 102.003(a)(9) provides that an original suit may be filed at any time 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) (Vernon Supp.2004). Charles and Beverly have met section 102.003(a)(9)'s standing requirement by pleading that they had actual care, control, and possession of SSJ-J for the requisite period of time.

Despite this fact, Cedric contends that, in addition to meeting sections 102.003(a)(9)'s standing requirement, Charles and Beverly must also meet the requirement of section 153.131 of the Family Code. That section, entitled "Presumption That Parent to be Appointed Managing Conservator," provides that

unless the court finds that appointment of the parent or parents would not be in the best interest of the child because the appointment would significantly impair the child's physical health or emotional development, a parent shall be appointed sole managing conservator or both parents shall be appointed as joint managing conservators of the child.

Tex. Fam.Code Ann. § 153.131(a) (Vernon 2002). Thus, according to Cedric, Charles and Beverly do not have standing because they did not plead that appointment of Cedric would significantly impair SSJ-J's physical health or emotional development. We note, however, that Charles and Beverly did, in fact, include allegations in Charles's amended pleading, Beverly's plea in intervention, and their affidavits that appointment of Cedric as sole managing conservator or as joint managing conservator with the right to establish residency of the child would significantly impair the child's physical health or emotional development. Cedric urges, however, that these pleadings were not sufficient, because in order to have standing, Charles and Beverly must specify wrongful conduct by Cedric that could be considered harmful to the physical or emotional health of the child. Cedric cites to a number of cases, including In re Aubin, 29 S.W.3d 199 (Tex.App.-Beaumont 2000, orig. proceeding), Von Behren v. Von Behren, 800 S.W.2d 919 (Tex.App.-San Antonio 1990, writ denied), Lewelling v. Lewelling, 796 S.W.2d 164 (Tex.1990), Brigham v. Brigham, 863 S.W.2d 761 (Tex.App.-Dallas 1993, writ denied), and In re W.G.W., 812 S.W.2d 409 (Tex.App.-Houston [1st Dist.] 1991, no writ). None of these, however, are on point.

In In re Aubin, 29 S.W.3d 199, 201 (Tex.App.-Beaumont 2000, orig. proceeding), the Burks filed suit under the former version of section 102.003(a)(9) against Aubin, the mother of three children, claiming that the children had been in their actual care, control, and possession for at least six months. Aubin filed a motion to dismiss challenging the Burks' standing to bring suit. Id. After the trial court denied her motion, Aubin filed a petition for writ of mandamus, alleging that the Burks had failed to establish standing at the temporary hearing and that the Burks had failed to prove that Aubin had placed the children in any clear and immediate danger. Id. The appellate court denied the petition without stating a reason for its ruling. Id. A year later, the Burks filed a motion for enforcement of the possession order and a motion to modify the temporary orders requesting that they be named temporary sole managing conservators. Id. In response, Aubin filed a motion to dismiss for want of prosecution, which included allegations that the trial court's temporary orders were an unconstitutional governmental interference with her right to rear her children. Id. When Aubin did not appear at the hearing on the motion to enforce, the trial court refused to rule on any of the motions and suggested the Burks file a writ of habeas corpus. Id. A month later, the trial court granted the Burks' application for an ex parte writ of attachment. Id. In response, Aubin filed another petition for writ of mandamus, requesting the appellate court command the trial court to vacate all of the orders granting writ of attachment, and to instruct his clerk to void the writs of attachment that have been issued. Id. at 201-02. In addition, Aubin requested that the appellate court command the trial court to vacate all temporary orders issued in this case, and to dismiss the suit. Id. at 202.

The appellate court, however, refused to order dismissal based on lack of standing, stating that there is some evidence in the record that the Burks had possession of the children for the requisite period. Id. at 203. The court further stated that the issue of whether Aubin is an unfit parent is the purpose of suits affecting the parent-child relationship and presents a factual dispute precluding granting mandamus relief on the trial court's denial of the motion to dismiss. Id. In re Aubin,...