In the Interest of N.L.D., a Child.

• Citation: 344 S.W.3d 33
• Decision Date: 27 May 2011
• Docket Number: No. 06–10–00132–CV.,06–10–00132–CV.
• Parties: In the Interest of N.L.D., a Child.
• Court: Court of Appeals of Texas

344 S.W.3d 33

In the Interest of N.L.D., a Child.

No. 06–10–00132–CV.

Court of Appeals of Texas, Texarkana.

Submitted: May 11, 2011.Decided: May 27, 2011.

Grady R. Thompson, McWilliams & Thompson, McKinney, for Appellant.Joe E. Weis, Pemberton, Green, Newcomb & Weis, Greenville, for Appellee.Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Jimmy Black, and wife, Angela Black, and Geraldine Black,¹ jointly filed a child custody action wherein they sought the managing conservatorship of N.L.D., the minor child of Tamara Haines.² In their petition, the Blacks alleged that Haines had neglected and physically abused N.L.D. Although Haines was duly served with citation, she filed no written answer to the petition.

However, the papers served on Haines informed her of the setting of a hearing on preliminary orders and Haines did appear at that hearing. At the time set for that hearing, the trial court acquiesced to Haines' oral request for a continuance, resetting the preliminary hearing for two days later and ordering Haines to submit to a drug test in the interim. Haines neither submitted herself to drug testing as ordered nor appeared at the rescheduled hearing. At the eventual hearing on temporary orders, the trial court heard evidence from the Blacks and entered a temporary order awarding temporary managing conservatorship to the Blacks. When the time period for Haines to file a response to the petition had expired, a brief hearing was held and, based upon the evidence from the temporary hearing, the trial court entered a final order, appointing the Blacks as joint managing conservators of N.L.D. and the child's parents as possessory conservators.

On appeal, Haines argues that the trial court erred because: (1) the Blacks lacked standing; (2) Haines received no prior notice of the final hearing; (3) there was no evidence to support the trial court's appointment of the Blacks as managing conservators; (4) there was insufficient evidence that the Blacks' appointment was in the child's best interests; and (5) it failed to award Haines specific periods of visitation.

We reverse and remand the trial court's final judgment because: (1) Jimmy and Angela lack standing; and (2) Haines' appearance at the preliminary hearing amounted to an “appearance,” which entitled her to notice of the hearing.

I. Factual and Procedural History

Geraldine Black is the paternal great-grandmother and Jimmy and Angela are the paternal great-uncle and great-aunt of N.L.D. Believing that Haines was abusing and neglecting N.L.D., the Blacks filed a petition seeking to be named managing conservators of the child. The court issued a temporary restraining order and order setting the case for hearing for temporary orders.

There were two documents served on Haines July 28, 2010, both of which incorporated the Blacks' petition by reference and both of which warned her that “[i]f you or your attorney do not file a written answer with the Clerk ... by 10:00 A.M. Monday next following the expiration of twenty days after you were served this citation and petition, a default judgment may be taken against you.” Those documents were not identical. One was a notice of a hearing on temporary orders which directed Haines to appear at the August 10, 2010, temporary orders hearing. The other was to inform her of the filing of the petition for conservatorship of her child, N.L.D., the body of it reiterating the requirement to file a written response before 10:00 a.m. “the Monday next following the expiration of twenty days after you were served” of the citation. Haines did not file such a written answer within the time period set out in those citations.

However, Haines did personally appear at the time and place set for the hearing on temporary orders. At the time set for the hearing, there was no formal evidence introduced, but Haines informed the court of the child's whereabouts and told the trial court that she has been approved for free legal assistance, saying that she had an appointment with her legal aid attorney the following day. Based on that, she requested a continuance in order that her attorney could attend the hearing. The trial court granted Haines' motion and reset the hearing for two days later, August 12, 2010. The trial court also orally ordered Haines to submit herself for testing on the presence of illicit drugs in the interim, providing her with instructions as to the site of the entity which would draw the fluids for administration of the test.

Haines failed to attend the August 12, 2010, hearing ³ and also did not appear for the drug testing. At that hearing on temporary orders, Angela and Jimmy testified regarding various instances of Haines' drug use, violent behavior, and neglect of the child. The trial court entered temporary orders, appointing the Blacks as temporary managing conservators of the child and allowing Haines visitation at “such times as might be mutually agreed between the parties.”

When Haines failed to file an answer, the Blacks obtained a final hearing on the same day Haines' answer was due, August 23, 2010. The Blacks alleged that Haines was in default, and based upon their motion, the trial court took judicial notice of the testimony from the August 12, 2010, hearing, as well as Haines' failure to submit to the drug test as ordered. The trial court's final order named the Blacks as joint managing conservators, named Haines and N.L.D.'s father as possessory conservators, directed N.L.D.'s parents to pay child support as per the “minimum guidelines,” and allowed Haines visitation with the child “by agreement.”

Haines timely filed a motion to set aside the default judgment and a motion for new trial. Because the trial court made no ruling on these motions, they were deemed denied. Tex.R.App. P. 21.8(c). Haines filed this appeal.

II. AnalysisA. Issue of Standing on the Part of the Blacks

In her first point of error, Haines contends that: (1) Jimmy and Angela lack standing because they are not related to N.L.D. within three degrees of consanguinity; and (2) Geraldine lacks standing because the trial court failed to find that “the child's present circumstances would significantly impair the child's physical health or emotional development.” ⁴

Standing, which is implicit in the concept of subject-matter jurisdiction, is a threshold issue in a child custody proceeding. See In re M.T.C., 299 S.W.3d 474, 479 (Tex.App.-Texarkana 2009, no pet.); In re SSJ–J, 153 S.W.3d 132, 134 (Tex.App.-San Antonio 2004, no pet.); see also Tex. Ass'n of Bus., 852 S.W.2d at 443–44. Whether a party has standing to pursue a cause of action is a question of law. See SSJ–J, 153 S.W.3d at 134. In our de novo review of the trial court's determination of standing, we must take as true all evidence favorable to the challenged party and indulge every reasonable inference and resolve any doubts in the challenged party's favor. See Tex. Dep't of Parks & Wildlife v. Miranda, 133 S.W.3d 217, 228 (Tex.2004); Smith v. Hawkins, No. 01–09–00060–CV, 2010 WL 3718546, at *3 (Tex.App.-Houston [1st Dist.] Sept. 23, 2010, pet. filed) (mem. op., not designated for publication); M.T.C., 299 S.W.3d at 479; Hobbs v. Van Stavern, 249 S.W.3d 1, 3 (Tex.App.-Houston [1st Dist.] 2006, pet. denied).

When standing to bring a particular type of lawsuit has been conferred by statute, we use that statutory framework to analyze whether the petition has been filed by a proper party. See Hunt v. Bass, 664 S.W.2d 323, 324 (Tex.1984); Office of Atty. Gen. of Tex. v. Crawford, 322 S.W.3d 858, 862 (Tex.App.-Houston [1st Dist.] 2010, pet. filed). In Texas, a party's standing in a suit involving the parent-child relationship is governed by the Texas Family Code, and a party seeking relief in such suits must plead and establish standing within the parameters of the language used in the Code. See In re H.G., 267 S.W.3d 120, 124 (Tex.App.-San Antonio 2008, no pet.); see also Tex. Fam.Code Ann. §§ 102.003–.007 (Vernon 2008 & Supp. 2010). If a party fails to establish this standing, the trial court must dismiss the suit. See In re C.M.C., 192 S.W.3d 866, 870 (Tex.App.-Texarkana 2006, no pet.).

The Blacks allege they have standing pursuant to Section 102.004 of the Texas Family Code,⁵ which provides, in relevant part:

(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.

The list of relatives who are within the third degree of consanguinity, and may have standing pursuant to Section 102.004(c) of the Texas Family Code, are the:

(1) parent or child (relatives of the first degree);

(2) brother, sister, grandparent, or grandchild (relatives in the second degree); and

(3) great-grandparent, great-grandchild, aunt who is a sister of a parent of the individual, uncle who is a brother of a parent of the individual, nephew who is a child of a brother or sister of the individual, or niece who is a child of a brother or sister of the individual (relatives of the third degree).

Tex.Gov't Code Ann. § 573.023(c) (Vernon 2004).

Pursuant to their own pleadings and testimony, Jimmy and Angela are N.L.D.'s great-uncle and great-aunt, and are, therefore, not related to N.L.D. within three degrees of consanguinity. Accordingly, they do lack the requisite standing and we must sustain Haines' first point of error as it pertains to Jimmy and Angela.

As N.L.D.'s paternal great-grandmother, Geraldine is related to N.L.D. within three...