COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00036-CV
In the Interest of C.M.J., A Child § From the 233rd District Court
§ of Tarrant County (233-494068-11)
§ December 21, 2012
§ Opinion by Justice Gabriel
JUDGMENT
This court has considered the record on appeal in this case and holds that
there was no error in the trial court’s judgment. It is ordered that the judgment of
the trial court is affirmed.
It is further ordered that Appellants W.R. and L.R. shall pay all of the costs
of this appeal, for which let execution issue.
SECOND DISTRICT COURT OF APPEALS
By_________________________________
Justice Lee Gabriel
COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-12-00036-CV
IN THE INTEREST OF C.M.J., A
CHILD
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FROM THE 233RD DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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Appellants W.R. and L.R.2 (Grandparents) appeal the trial court’s order
appointing S.W. (Father) as the sole managing conservator of C.M.J. We affirm.
1
See Tex. R. App. P. 47.4.
2
We use aliases for the child and her relatives throughout this opinion.
See Tex. R. App. P. 9.8(b)(2).
2
Background Facts
C.M.J. lived with K.C. (Mother) until December 28, 2010, when Mother was
murdered. After Mother’s death, C.M.J. moved in with Grandparents. Father
agreed in writing with Grandparents to name them as temporary managing
conservators for a six-month period so that C.M.J. could finish the school year in
Texas. The agreement was to end in July 2011 when C.M.J. would come to live
with Father in North Carolina. On March 23, 2011, Grandparents filed an original
petition seeking joint managing conservatorship with Father. Mother and Father
were never married, and a child custody determination had not been made
during C.M.J.’s life.
Father filed a pro se letter that appears in the record as his answer. In his
answer, Father stated, ―I feel that it is my responsibility to take care of my
daughter. She should be here with me so I can support her emotionally,
physically, and financially. . . . I want for [C.M.J.] to experience having a father in
her life on a daily basis.‖ Then on August 24, 2011, Father filed a plea to the
jurisdiction, arguing that Grandparents lacked standing because they ―failed to
have [] actual care, control, and possession of [C.M.J.] for at least six months
prior to initiating their action.‖
Grandparents filed a response to Father’s plea to the jurisdiction on
September 12, 2011, and they also amended their original petition at that time,
arguing that they had had ―actual care, control, and possession of [C.M.J.] for
3
over six months at this point.‖ In their response, Grandparents argued that
Father’s standing argument was now moot.
After a hearing, the trial court appointed Father as sole managing
conservator. In its order, the trial court stated that Grandparents did not have
standing but that the trial court had jurisdiction over the case. Grandparents filed
a ―Motion to Vacate Order for Lack of Subject Matter Jurisdiction,‖ agreeing that
they did not have standing to file their suit and arguing that the trial court’s orders
were therefore void for lack of subject matter jurisdiction. Grandparents also filed
a motion for new trial. The trial court denied both motions.3 Grandparents then
filed this appeal.4
Discussion
In their sole issue, Grandparents argue that all of the trial court’s orders
should be vacated because the trial court did not have subject matter jurisdiction
to hear the dispute because Grandparents did not have standing to bring the suit.
We review a trial court’s determination of standing de novo. See In re K.K.T., No.
3
After the denial of their motions, Grandparents filed a petition for writ of
mandamus in this court. In their petition, Grandparents again argued that they
did not have standing to file their suit and so the trial court did not have
jurisdiction to hear the case. We denied their petition on February 27, 2012.
4
Father filed a reply brief in this court that contained a number of formal
defects. See Tex. R. App. P. 9, 38. We notified Father to file an amended brief
that complied with the rules of appellate procedure and this court’s local rules
and that failure to file a compliant brief could result in striking the filed brief.
Father did not file an amended brief. We therefore order Father’s brief stricken,
and we proceed with this appeal as if Father had failed to file a brief. See Tex.
R. App. P. 38.9(a).
4
07-11-00306-CV, 2012 WL 3553006, at *2 (Tex. App.—Amarillo Aug. 17, 2012,
no pet.) (mem. op.) (citing Tex. Dep’t of Parks & Wildlife v. Miranda, 133 S.W.3d
217, 226 (Tex. 2004)). The pleadings are taken as true and construed in favor of
the pleader. Id.
Standing is considered ―a prerequisite to subject-matter jurisdiction, and
subject-matter jurisdiction is essential to a court’s power to decide a case.‖
Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547, 553–54 (Tex. 2000). Standing
cannot be attained by waiver and can be challenged at any time. See Tex. Ass’n
of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex. 1993); Sarah v.
Primarily Primates, Inc., 255 S.W.3d 132, 139 (Tex. App.—San Antonio 2008,
pet. denied). In an original suit, standing is a threshold issue when the petitioner
seeks managing conservatorship. See In re K.K.C., 292 S.W.3d 788, 790 (Tex.
App.—Beaumont 2009, orig. proceeding) (citing In re M.P.B., 257 S.W.3d 804,
808 (Tex. App.—Dallas 2008, no pet.)). The burden to prove standing is on the
petitioner. See id.
―The Texas Legislature has provided a comprehensive statutory framework
for standing in the context of suits involving the parent-child relationship.‖ Id. at
790–91; see Tex. Fam. Code Ann. § 102.003 (West Supp. 2012), §§ 102.0035,
102.004 (West 2008), § 102.0045 (West Supp. 2012), § 102.006 (West 2008). In
their original petition, Grandparents relied solely on Texas Family Code section
102.003(a)(9), which provides standing for ―a person, other than a foster parent,
who has had actual care, control, and possession of the child for at least six
5
months ending not more than 90 days preceding the date of the filing of the
petition.‖ See id. § 102.003(a)(9). To compute the time under this section, ―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.‖ In re E.G.L., 378 S.W.3d 542, 547 (Tex.
App.—Dallas 2012, no pet.) (citing Tex. Fam. Code Ann. § 102.003(b)).
Grandparents filed suit on March 23, 2011. C.M.J. lived with Mother until
December 2010. Therefore, at the time the suit was filed, C.M.J. had only lived
with Grandparents for three months. Almost six months after they originally filed
suit, in response to Father’s plea to the jurisdiction, Grandparents filed an
amended petition alleging that they had standing because they ―had actual
possession of [C.M.J.] for over six months‖ at that point. However, this is
insufficient to constitute standing under section 102.003(a)(9) because standing
and subject matter jurisdiction are determined at the time the lawsuit is filed. See
M.D. Anderson Cancer Ctr. v. Novak, 52 S.W.3d 704, 708 (Tex. 2001). While
Grandparents had actual possession of C.M.J. for over six months at the time
they amended their petition, they did not have actual possession of her for six
months at the time the lawsuit was filed. Amending their original petition did not
confer standing on Grandparents.5 See Kilpatrick v. Kilpatrick, 205 S.W.3d 690,
703 (Tex. App.—Fort Worth 2006, pet. denied) (―Because [plaintiff] lacked
5
Grandparents also do not have standing under any other provisions of the
family code. See Tex. Fam. Code Ann. §§ 102.003–.004.
6
standing at the time the action was filed, the suit must be dismissed even if
[plaintiff] later acquired an interest sufficient to support standing.‖).
However, if Father’s letter to the trial court filed in answer to Grandparent’s
petition may be construed as a counter-petition, then the trial court had
jurisdiction to hear the case. We construe Father’s letter liberally and in his
favor. See Horizon/CMS Healthcare Corp. v. Auld, 34 S.W.3d 887, 897 (Tex.
2000) (noting that a petition is sufficient if it gives fair and adequate notice of the
facts to enable the opposing party to prepare a defense). In his letter, Father
stated that he wanted to take care of his daughter, support her, and be in her life
―on a daily basis.‖ Under this liberal construction, we conclude that Father’s
letter was a counter-petition seeking managing conservatorship of C.M.J.
Although Father is not a resident of Texas, the trial court made the finding,
which is uncontested by Grandparents, that C.M.J.’s home state is Texas. See
Tex. Fam. Code Ann. § 152.201 (West 2008) (providing that a court of this state
has jurisdiction to make an initial child-custody determination if ―this state is the
home state of the child on the date of the commencement of the proceeding‖).
As C.M.J.’s biological father, Father had standing to file suit. See id.
§ 102.003(a)(1); see also id. § 102.011(b)(2) (allowing the trial court to exercise
personal jurisdiction over a nonresident when he submits to this state’s
jurisdiction ―by filing a responsive document having the effect of waiving any
contest to personal jurisdiction‖). Therefore, because Father had standing to file
suit, and because he filed a counter-petition in response to Grandparent’s
7
petition, the trial court had jurisdiction to hear this case. The trial court’s order
appointing Father as C.M.J.’s sole managing conservator is not void for lack of
subject matter jurisdiction. We overrule Grandparents’ sole issue.
Conclusion
Having overruled Grandparents’ sole issue, we affirm the trial court’s
judgment.
LEE GABRIEL
JUSTICE
PANEL: LIVINGSTON, C.J.; DAUPHINOT and GABRIEL, JJ.
DELIVERED: December 21, 2012
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in the Interest of C.M.J., a Child
Combined Opinion