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

Reversed and Remanded and Majority and Dissenting Opinions filed April 3,
2014.

In The

Fourteenth Court of Appeals

NO. 14-13-00006-CV

IN THE INTEREST OF K.D.H., A CHILD

On Appeal from the 257th District Court
Harris County, Texas
Trial Court Cause No. 2012-06890

MAJORITY OPINION
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 Grandmother filed 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
1
The Department filed a status report in the trial court describing this action as a “placement.”
By stating in this opinion that the Child was placed with the Grandmother, we are not suggesting
that the Department filed any lawsuit against the Mother or Father or that the Department was
ever appointed as a conservator of the Child.
2
The Grandmother asserted other bases for standing in her pleadings. On appeal, she does not
argue these other bases, and we do not address them in this opinion.

2
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

3
The reporter’s record reflects that neither the Mother nor Father testified at the hearing. The
court reporter listed the witnesses who testified and did not list the Mother or the Father. The
reporter’s record states that “witnesses” were sworn at the beginning of the hearing. Presuming
for the sake of argument that the Mother and the Father were sworn at this time, a witness can be
sworn and then not testify. At the end of the hearing, the trial court asked the Mother and the
Father for their respective positions, but the record does not reflect that they testified as
witnesses. The Mother and the Father each were acting pro se at the hearing, and their respective
statements at the hearing were in the nature of argument, not testimony.

3
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,
655B56 (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
4
Unless otherwise specified, all statutory references in this opinion are to the Texas Family
Code.

4
 (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-

5
This court previously has indicated that we should not review this determination as if it were a
finding as to whether the parental presumption had been rebutted at the trial on the merits. See
In re Vogel, 261 S.W.3d at 922. The Vogel court concluded that standing is determined as of the
date the petition was filed and that, for there to be standing under section 102.004(a)(1), the
record must contain evidence that the order requested is necessary because the child’s present
circumstances would significantly impair the child’s physical health or emotional development.
See id. The Vogel court did not address what the record must contain to satisfy this requirement.
See id. at 920–22. It is not clear exactly what standard of review the Vogel court applied. See id.
The Vogel court stated a trial court’s ruling regarding standing is reviewed de novo to determine
“whether any evidence in the record supports standing.” Id. at 921. The Vogel court did not
state that there were any express or implied findings by the trial court regarding standing, nor did
the Vogel court state that it was reviewing any such findings under a deferential standard of
review to determine if they were supported by legally sufficient evidence. See id. at 920–22.
Likewise, the Vogel court did not state that it was reviewing the evidence in the light most
favorable to the challenged findings and indulging every reasonable inference that would support
these findings. See id. Nor did the Vogel court say that the trial court is the sole judge of witness
credibility and the weight to give to testimony. See id. The Vogel court stated that “the trial
court reasonably could have found that [the child’s] present circumstances . . . would
significantly impair his physical health or emotional development.” Id. at 922. But, this
language is consistent with either a legal-sufficiency analysis or an inquiry into whether the
evidence, when considered in the light most favorable to the petitioner, would enable a
reasonable and fair-minded factfinder to make the finding in question. See id.

5
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. See Tex. 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

6
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. 6 See 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 governed by the same procedural law that applies in civil cases
generally, except as otherwise provided by the Family Code. See Tex. Fam. Code
Ann. § 105.003 (West 2014); In re E.A.C., 162 S.W.3d 438, 442 (Tex. App.—
Dallas 2005, no pet.).

Section 102.004(a) is an unusual provision because, in it, the Texas
Legislature confers standing on certain parties based on the existence of proof

6
In this opinion we do not state or suggest that pleading standing under section 102.004(a), by
itself, would be sufficient to satisfy the requirements of that statute.

7
rather than the existence of facts. See Tex. Fam. Code Ann. § 102.004(a). Under
this statute, a grandparent, or other relative of the child related within the third
degree by consanguinity, may have standing to file an original suit requesting
managing conservatorship under certain circumstances, even though that person
does not have standing under section 102.003, the general standing statute. See
Tex. Fam. Code Ann. § 102.004(a). The Texas Legislature has decided that this
additional grant of standing should be given only if “there is satisfactory proof to
the court” of either of two propositions. See id. The proposition in issue in today’s
case is that the order requested is necessary because the Child’s present
circumstances would significantly impair the Child’s physical health or emotional
development. See id.

Under section 102.004(a), the trial court acts as a gatekeeper in assuring that
satisfactory proof exists of the proposition upon which the petitioner relies to
establish standing under this statute.7 See id. As a threshold matter, we must

7
Our dissenting colleague emphasizes the effect that the plurality opinion in Troxel v. Granville
has had on legislation and the importance of the “dictates of Troxel.” See post at p. 8–9, 15.
Several observations merit special mention. Fit parents certainly have fundamental constitutional
rights to make decisions concerning the care, custody, and control of their own children.
See Troxel v. Granville, 530 U.S. 57, 65–66, 120 S.Ct. 2054, 2060, 147 L.Ed.2d 49 (2000)
(plurality op.) (collecting cases and concluding that “it cannot now be doubted that the Due
Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make
decisions concerning the care, custody, and control of their children”); Prince v.
Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 442, 88 L.Ed. 645 (1944) (stating that “it is
cardinal with us that the custody, care, and nurture of the child reside first in the parents, whose
primary function and freedom include preparation for obligations the state can neither supply nor
hinder”). But, it should be noted that Justice O’Connor’s opinion in Troxel was a plurality
opinion. See Troxel, 530 U.S. at 60, 120 S.Ct. at 2057. In addition, the Troxel plurality
concluded that the visitation statute at issue was unconstitutional as applied based upon the
“sweeping breadth” of the statute; the plurality did not address (1) whether the Due Process
Clause of the United States Constitution requires all nonparental-visitation statutes to include a
showing of harm or potential harm to the child as a condition precedent to granting visitation, (2)
the scope of the parental due process right in the visitation context, or (3) the constitutionality of
a statute addressing appointment of a nonparent as managing conservator of a child. See id., 530
U.S. at 73, 120 S.Ct. at 2064; In re C.A.M.M., 243 S.W.3d 211, 219 & n.11 (Tex. App.—
Houston [14th Dist.] 2007, pet. denied).
8
determine the standard under which the trial court performs the gatekeeper
function as well as the standard by which this court reviews the gatekeeper ruling.

The term “satisfactory” is not defined in the statute, and it does not have a
technical or particular meaning. Accordingly, we construe this term based on its
ordinary meaning. See City of San Antonio v. Hartman, 201 S.W.3d 667, 672, n.19
(Tex. 2006). A dictionary definition of “satisfactory” is “giving or affording
satisfaction; fulfilling all demands or requirements,” and a synonym of
“satisfactory” is “adequate.” See Dictionary.com Unabridged (Random House,
Inc.) http://dictionary.reference.com/browse/satisfactory (accessed February 14,
2014). The statutory phrase “satisfactory proof to the court” could be construed to
mean whatever level of proof is deemed sufficient by the particular trial judge
under whatever standard the trial judge chooses. But, such a construction would be
unreasonable because it would result in a lack of uniformity as to the standard
applied by the many trial judges across Texas, resulting in arbitrary, subjective,
and random application. Moreover, such a construction would give trial judges
unreviewable discretion to find that a particular grandparent, or other relative of
the child related within the third degree by consanguinity, has standing.

The statutory phrase “satisfactory proof to the court” also could be construed
to mean that, to have standing under section 102.004(a), the petitioner must prove
the proposition in question at an evidentiary hearing at which the trial court acts as
factfinder. Under this construction, if the defendant were to file a plea to the
jurisdiction challenging standing and the trial court were to find the facts in favor
of the standing proposition, the petitioner would have standing to proceed with the
suit, but, if the trial court were to find the facts against the standing proposition and
dismiss the case, the petitioner could appeal and challenge the legal or factual

9
sufficiency of the trial court’s factfindings on standing.8 Under this construction,
appellate courts would defer to the trial court’s fact findings regarding standing
under section 102.004(a) rather than review the trial court’s determination de novo.
This construction, however, contradicts a fundamental principle of Texas law
underlying standing and pleas to the jurisdiction—appellate review of the trial
court’s ruling on a plea to the jurisdiction is conducted under a de novo standard of
review. See Miranda, 133 S.W.3d at 228; In re I.M.S., 2008 WL 5059179, at *2;
In re Vogel, 261 S.W.3d at 920–21.

In today’s case, the Grandmother timely filed a written request for a jury
trial and paid the jury fee, thus invoking her constitutional right to a jury trial. See
Tex. Const. art. 1, § 15; Tex. Fam. Code Ann. § 105.002(a),(b)(West 2014); Tex.
R. Civ. P. 216. The Texas Legislature has emphasized that, in an original
proceeding in which one or more parties seek appointment as a managing
conservator, parties who invoke their right to a jury trial are entitled to a jury trial
on the issue of the appointment of a managing conservator, and the trial court may
not contravene the jury’s verdict on the conservatorship issue. 9 See Tex. Fam.
Code Ann. § 105.002(c)(1); In re Reiter, 404 S.W.3d 607, 609 (Tex. App.—
Houston [1st Dist.] 2010, orig. proceeding).

To succeed on the merits of her suit to be appointed the sole managing
conservator of the Child, the Grandmother must prove that appointment of the
Mother or the Father as a managing conservator would not be in the Child’s best
interest because such an appointment would significantly impair the Child’s
8
Our dissenting colleague adopts such an approach to the statute. See post at p. 2.
9
In this proceeding, the Grandmother has not challenged the constitutionality of section 102.004
or any other statute, nor do we suggest or imply that section 102.004 is unconstitutional. Instead,
we consider as part of a statutory-interpretation analysis the effect of the potential interpretations
of this statute on the right to a jury trial of a grandparent or other relative within the third degree
by consanguinity.

10
physical health or emotional development. See Tex. Fam. Code Ann. § 153.131(a)
(West 2014). For standing under section 102.004(a)(1), there must be satisfactory
proof to the court that an order appointing the Grandmother as sole managing
conservator of the Child is necessary because the Child’s present circumstances in
the care of the Mother and the Father would significantly impair the Child’s
physical health or emotional development. See Tex. Fam. Code Ann. §
102.004(a)(1). Thus, for the Grandmother to have standing, the record must
contain satisfactory proof as to part of what the Grandmother has to establish to
prevail on the merits of her suit. See Tex. Fam. Code Ann. §§102.004(a)(1),
153.131(a). This is a case in which the jurisdictional standing challenge implicates
the merits of the petitioner’s case and the plea to the jurisdiction involves evidence.
The Supreme Court of Texas has held that in this situation the trial court is to
review the relevant evidence to determine if a fact issue exists. See Miranda, 133
S.W.3d at 227; Sewell v. Hardriders, Inc., No. 14-12-00541-CV, 2013 WL
3326798, at *3–4 (Tex. App.—Houston [14th Dist.] June 27, 2013, no pet.) (mem.
op.). If the evidence creates a fact question regarding the jurisdictional issue, then
the trial court cannot grant the plea to the jurisdiction, and the fact issue will be
resolved by the fact finder (in today’s case, the jury). See Miranda, 133 S.W.3d at
227–28; Sewell, 2013 WL 3326798, at *3–4. But, if the relevant evidence is
undisputed or fails to raise a fact question on the jurisdictional issue, the trial court
is to rule on the plea to the jurisdiction as a matter of law. See Miranda, 133
S.W.3d at 228; Sewell, 2013 WL 3326798, at *3–4. Adopting a construction of
“satisfactory proof to the court” that casts the trial court as the factfinder regarding
the section 102.004(a)(1) proposition would contravene these important principles
of law regarding standing and pleas to the jurisdiction. See Miranda, 133 S.W.3d
at 227–28; Sewell, 2013 WL 3326798, at *3–4. This contradiction would exist
whether or not the petitioner invoked the right to a jury trial. Nonetheless, in cases
11
like the one under review, in which the petitioner has invoked her right to a jury
trial, such a construction of section 102.004(a)(1) also would deprive the petitioner
of the right to have the jury, rather than the trial court, be the factfinder on this
issue. See Tex. Const. art. 1, § 15; Tex. Fam. Code Ann. § 105.002(a),(b); Tex. R.
Civ. P. 216; In re Reiter, 404 S.W.3d at 609.

For all of the foregoing reasons, it would be unreasonable to construe section
102.004(a)(1) so that the trial court is the factfinder who makes credibility
determinations as to the proposition in section 102.004(a)(1).10

The statutory phrase “satisfactory proof to the court” also could be construed
to mean that, to have standing under section 102.004(a)(1), the trial court must
determine whether there is a genuine fact issue as to the proposition in question,
and appellate courts then would review this determination de novo. Under this
construction, the trial court would determine whether the evidence submitted
regarding the standing issue, 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 present circumstances would
significantly impair the child’s physical health or emotional development. See
Tex. Fam. Code Ann. § 102.004; Goodyear Tire & Rubber Co. v. Mayes, 236
S.W.3d 754, 755 (Tex. 2007).

Under this construction, the trial court still would perform a gatekeeper
function, and the statute would comport with the important principles discussed
above regarding de novo review of rulings on pleas to the jurisdiction when
standing is implicated, the trial court’s inability to sustain a plea to the jurisdiction

10
We conclude that this statutory construction is unreasonable for the reasons stated above. We
do not do so because we are uncomfortable with the possibility of the trial court acting as
factfinder regarding standing under this statute or because appellate review under such a
construction would be awkward.

12
if there is a fact issue regarding the jurisdictional issue, and respect for the
petitioner’s invocation of the right to a jury trial on issues regarding appointment
of the petitioner as sole managing conservator. See Tex. Const. art. 1, § 15; Tex.
Fam. Code Ann. § 105.002(a),(b); Tex. R. Civ. P. 216; Miranda, 133 S.W.3d at
227–28; Sewell, 2013 WL 3326798, at *3–4; In re Reiter, 404 S.W.3d at 609. For
these reasons, we conclude that section 102.004(a) is unambiguous and yields only
one reasonable interpretation. See Iliff, 339 S.W.3d at 79. Under this
interpretation, for a grandparent, or other relative of the child related within the
third degree by consanguinity, to have standing under section 102.004(a)(1), the
evidence submitted regarding the standing issue, when considered in the light most
favorable to the petitioner, must 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. See Tex. Fam. Code Ann. § 102.004; Mayes, 236 S.W.3d at 755
(Tex. 2007).

B. Did the trial court err in concluding that the grandparent lacked
standing under section 102.004(a)(1)?
Applying this legal standard, we conduct a de novo review to determine
whether the record evidence submitted regarding the standing issue, considered in
the light most favorable to the Grandmother, 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 (February 2, 2012) would significantly
impair the Child’s physical health or emotional development. See Tex. Fam. Code
Ann. § 102.004; Mayes, 236 S.W.3d at 755 (Tex. 2007).

13
 The record contains an affidavit in which the Grandmother testifies to the
following:

• The Department had been contacted due to the Mother’s drug use.
• On October 10, 2011, the Department, the Grandmother, the Mother, and the
Father signed a plan for the Child’s safety.
• The Department wanted the Mother and the Father to submit themselves to
drug testing and meet other conditions.
• The Mother and the Father moved in with the Grandmother on October 10,
2011, when the Child began living with the Grandmother.
• The parents’ lack of care and concern for the Child was the Grandmother’s
immediate concern. Rarely would the Mother hold or feed the Child. When
the Mother did hold the Child, it was as if the Child was a foreign object.
• From the day they moved into the Grandmother’s house, the Mother and
Father had long extended absences away from the Child. Rarely would the
parents check on the Child throughout the day. When the parents,
particularly the Mother, were at home with the Child, they rarely would hold
or care for the Child.
• Initially the Child’s parents lived with the Grandmother; however, the Father
refused to stop drinking and soon was asked to leave the Grandmother’s
home. The Mother soon followed him. Once out of the Grandmother’s
home, the parents sporadically visited the Child and only rarely called to
inquire about the Child. At one point, the parents did not visit or call for 22
days. Most of the time, the calls were made by the Father.
• Between the time the Child’s parents left the Grandmother’s home and the
time the Department returned the Child to the Mother, the parents had spent
a total of 41 hours with the Child.
• The Grandmother was concerned about the parents’ lack of care for the
Child, but the Grandmother made every effort to ensure that the parents
bonded with the Child.
• In the Grandmother’s opinion, the parents’ interest in the Child relates to the
pecuniary benefits the Child represents rather than the well-being of the
Child. The Grandmother is scared that the Child will be subjected to neglect
and injury if a third party is not present.
• The Mother has been charged with endangering a child three times and

14
 convicted of the offense once. The Mother is a drug-and-alcohol abuser and
has been charged and convicted of driving while intoxicated twice.

• The Mother has had five children who have been placed with the
Department between 2008 and 2011.
• The Father was incarcerated at the time of the Grandmother’s affidavit. He,
too, has a history of alcohol and drug abuse.
• The Grandmother believed that the Child’s parents would endanger the
Child’s physical or emotional welfare.11
The record also contains certified copies of the Mother’s two DWI convictions and
one child-endangerment conviction. 12

At an evidentiary hearing on the Mother’s plea to the jurisdiction, the
Grandmother testified to the following additional facts:

• In October 2011, the Department had placed the Child in the
Grandmother’s care when the Child was five days old because the
Mother had tested positive for marijuana while pregnant with the
Child.
• The Child’s parents moved into the Grandmother’s home at that time.
For about nine days thereafter, both parents left the Child in the
Grandmother’s care for as many as eleven hours a day as they
searched for an apartment.
• On one occasion, the Father, who had consumed alcohol, and the

11
In her appellant’s brief, the Grandmother asserted many of the facts contained in her affidavit.
In this section of her brief, she also asserted that the parents would fight violently and loudly in
her home. On one occasion, the Mother kept the Child in the middle of a violent argument,
swinging and shaking the Child around. The Mother and the Father have not filed an appellate
brief and thus have not contradicted these facts; therefore, this court accepts these facts as true.
See Tex. R. App. P. 38.1(g). Even though we accept these facts as true on appeal, we still must
examine the record to determine if it contains evidence 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.
12
The conviction for endangering a child occurred before the Child was born, so the child
endangered was not the Child.

15
 Mother, who was holding the Child, had an argument in the
Grandmother’s home. Each parent was screaming and cursing at the
other. The Mother refused to give the Grandmother the Child after
the Grandmother asked her to do so.
• The Grandmother was concerned during this incident because the
Father was very angry and each parent made threatening motions
toward the other. According to the Grandmother, the Child’s legs
were “swinging like crazy” and “they were shaking the baby around,”
but the Child was not hurt. The Grandmother was concerned that the
Mother would allow a two-week old baby to be in the middle of an
extremely volatile and possibly violent situation.
• Following this incident, the Grandmother asked the Father to leave the
Grandmother’s home and he complied. The Mother left two days
later.
• The Child remained in the Grandmother’s care for several months
until the Department returned the Child to the Mother’s care on
February 2, 2012, the same day the Grandmother filed her original
petition in this case.
The Mother and the Father appeared at the evidentiary hearing and
represented themselves. Though they made legal arguments, neither parent
presented any evidence.

Under a de novo review, we conclude that, considering the record evidence
in the light most favorable to the Grandmother, the evidence submitted regarding
the standing issue would enable reasonable and fair-minded people to find that the
order the Grandmother requested (to be named sole managing conservator of the
Child) is necessary because the Child’s circumstances on the date suit was filed
(February 2, 2012) would significantly impair the Child’s physical health or
emotional development.13 See Tex. Fam. Code Ann. § 102.004(a)(1). Thus, the
trial court erred in sustaining the plea to the jurisdiction and dismissing the
13
This determination does not mean that the Grandmother has rebutted the parental presumption
or proved her case at the trial on the merits. Rather, we merely conclude that the Grandmother
has standing under section 102.004(a)(1) to bring the suit.

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Grandmother’s suit for lack of standing. Accordingly, we sustain the
Grandmother’s sole appellate issue.

IV. CONCLUSION

Under the applicable legal standard, the record contains the proof necessary
for the Grandmother to have standing under section 102.004(a)(1). Because the
trial court erred in dismissing the Grandmother’s suit for lack of standing, we
reverse the trial court’s judgment, and remand for further proceedings consistent
with this opinion.

/s/ Kem Thompson Frost
Chief Justice
Panel consists of Chief Justice Frost and Justices Boyce and Jamison. (Jamison, J.,
dissenting).

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