in Re April Caudillo

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00208-CV

In re April Caudillo

ORIGINAL PROCEEDING FROM WILLIAMSON COUNTY

MEMORANDUM OPINION

This original proceeding arises out of a suit affecting the parent-child relationship

(SAPCR) in which a child’s paternal grandfather and uncle, real parties in interest Michael

Miller (“Grandfather”) and Jarid Miller (“Uncle”), filed a petition to modify the parent-child

relationship after the child’s father died. The child’s mother, relator April Caudillo (“Mother”),

moved to dismiss the modification suit on the ground that Grandfather and Uncle lack the

requisite statutory standing to maintain their suit. After the trial court denied her motion, Mother

filed a petition for writ of mandamus in this Court. See Tex. Gov’t Code § 22.221; Tex. R. App.

P. 52.1(a). Because we conclude, based on the record before us, that the trial court’s decision

does not constitute an abuse of discretion, we deny the petition. See Tex. R. App. P. 52.8(a).

BACKGROUND

The child’s father, Kristopher Miller (“Father”), died unexpectedly in a car accident

on October 29, 2018. At the time of Father’s death, the child’s relationship with Mother and

Father was governed by a June 2016 Final Order in Suit Affecting Parent-Child Relationship.

Grandfather and Uncle were not parties to the 2016 Final Order. Under the 2016 Final Order,
Father had been appointed the sole permanent managing conservator and, accordingly, had

the right to designate the child’s primary residence. See Tex. Fam. Code § 153.132 (rights and

duties of parent appointed sole managing conservator). Mother had been appointed possessory

conservator of the child with rights of possession and access to the child. At the time of Father’s

death, he and the child were living in Texas; Mother was living in California.

On October 31, 2018, two days after Father’s death, Grandfather and Uncle filed

a petition to modify the 2016 Final Order. In their petition, Grandfather and Uncle allege that

Father’s death constitutes a material and substantial change in circumstances that necessitates

modification, that the child’s “current circumstances under the current order would significantly

impair the child’s physical and emotional well-being,” and that their appointment as nonparent

joint managing conservators is in the child’s best interest. In response, Mother filed an answer

generally denying Grandfather and Uncle’s claims. Soon after, Mother filed a first amended

answer and, in the same document, a “motion to strike” (hereafter, the “motion to dismiss”)

requesting that the trial court strike Grandfather and Uncle’s pleadings and dismiss their claims

based on lack of standing. In addition, Mother counter-petitioned to modify the 2016 Final Order

and to be appointed as the child’s sole managing conservator.

In February 2019, the trial court held a temporary-orders hearing. At the hearing,

the trial court heard evidence from the parties about the events leading to the 2016 Final Order,

as well as evidence about Mother’s current relationship with the child. According to Mother’s

testimony, she and Father were high-school sweethearts. They met in high school in Arizona

when she was a sophomore and he was a junior. Both Mother and Grandfather testified that

Mother was always at Father’s family’s house and was like part of the family. Father’s family

moved to Texas before Mother graduated from high school, and in 2011, when she was 17,

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Mother moved to Texas to be with Father. The child was born on October 30, 2013, and was

five years old at the time of the hearing.

In March 2015, Mother and Father were moving from Texas to Arizona when

they were involved in a serious car accident in Midland-Odessa. It is unclear from the record

whether the child was with them at the time of the accident. Mother testified that she was

hospitalized as a result of her injuries, including a stay in the intensive-care unit, and then

released to the care of her parents in Arizona. Mother’s father drove her to Arizona so that

her mother could care for her while she was recovering. Father sustained only minor injuries,

and following the accident, he stayed in Texas with the child, who was about 17 months old

at the time.

Mother testified that the reason that she and Father were moving to Arizona

was because they wanted to “get clean and off drugs.” According to Mother’s testimony at the

hearing, her family in Arizona was “clean and sober,” while Father’s family in Texas was not,

“so that was a better option for [them] at the time.” Mother further testified that she and Father

had used drugs, including marijuana and methamphetamine, when they were living with Father’s

family and had used marijuana and methamphetamine with Father’s parents. Grandfather

admitted that they “had smoked marijuana together” but testified that there were no other drugs

in the house to his knowledge.

Mother testified that while she was recovering from the accident in Arizona,

Father called to let her know that Child Protective Services (CPS) had initiated a case in Texas

based on a referral from Mother’s father to CPS in Texas. Although the parties dispute the

details of events that occurred during the pendency of the CPS case, it is undisputed that Father

completed the court-ordered services. Mother testified that she contacted CPS in Arizona but

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that they were unable to help her obtain the services ordered by the Texas court. Mother did not

appear at the final hearing in that case, and she was not at the mediation at which CPS and Father

reached an agreement on the terms of the agreed final order that was submitted to the trial court.

The CPS case ultimately resulted in the 2016 Final Order that governed Mother’s and Father’s

relationship to the child at the time of Father’s death.

Mother testified that while the CPS case was still pending, she got pregnant with

another child, that she started using heroin after that child’s birth, and that she ultimately agreed

to allow her father to adopt that child. She testified that after living with her mother and working

with her mother in her mother’s real-estate business as well as working as a delivery driver, she

moved to California and successfully completed a drug-rehabilitation program. According to

her testimony at the hearing, Mother moved to California because she has more family there,

including her father and her aunt, who support her in her efforts to quit using drugs and to “stay

clean.” After she completed the drug-rehabilitation program in June 2017, she moved in with

her aunt and helps her aunt around the house, takes her to doctors’ appointments, and spends

time with her. Mother also works about 30 hours a week as a pizza-delivery driver.

The parties testified to conflicting versions of Mother’s efforts to contact Father

and the child between the issuance of the June 2016 Final Order and July 2018 when she visited

Texas for the first time after the Order was signed. Both sides agreed that there was intermittent

communication between Mother and Father before Mother first visited the child in July 2018, but

they disputed the reasons that their communication was sporadic. However, it is undisputed that

Mother’s first visit with the child, who by then was four-and-a-half years old, occurred on a

weekend in mid-July 2018.

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 The parties also argued the issue of Grandfather and Uncle’s standing at the

hearing. The trial court later notified the parties by letter that it was denying Mother’s motion to

dismiss and, instead, issuing temporary orders naming Grandfather and Uncle joint managing

conservators of the child, leaving Mother’s status as possessory conservator unchanged, and

establishing a step-up possession and access schedule governing Mother’s visitation. In this

mandamus proceeding, Mother challenges the trial court’s ruling on her motion to dismiss.

PRINCIPLES GOVERNING MANDAMUS RELIEF

A writ of mandamus will issue to correct a clear abuse of a trial court’s discretion

when the party has no adequate remedy by appeal. In re Southwestern Bell Tel. Co., 226 S.W.3d

400, 403 (Tex. 2007) (orig. proceeding) (citing In re Prudential Ins. Co. of Am., 148 S.W.3d 124,

135-36 (Tex. 2004) (orig. proceeding)). Mandamus is an appropriate vehicle for challenging a

trial court’s denial of a motion to dismiss for lack of standing in a SAPCR because the order

is not immediately appealable. In re McDaniel, 408 S.W.3d 389, 396 (Tex. App.—Houston

[1st Dist.] 2011, orig. proceeding) (citing In re Roxsane R., 249 S.W.3d 764, 775 (Tex. App.—

Fort Worth 2008, orig. proceeding)); see also In re Martin, 523 S.W.3d 165, 169 (Tex. App.—

Dallas 2017, orig. proceeding) (“Due to the unique and compelling circumstances presented in a

SAPCR action, . . . mandamus relief is . . . an appropriate remedy for an order denying a motion

to dismiss for lack of standing in a SAPCR action.”). Therefore, whether Mother is entitled to

mandamus relief turns on whether the trial court abused its discretion by refusing to dismiss

Grandfather and Uncle’s petition to modify for lack of standing.

A trial court abuses its discretion if it reaches a decision so arbitrary and

unreasonable as to amount to a clear and prejudicial error of law or if it fails to correctly analyze

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or apply the law. In re Cerberus Cap. Mgmt., L.P., 164 S.W.3d 379, 382 (Tex. 2005). In

determining whether the trial court abused its discretion with respect to its resolution of factual

issues, we may not substitute our judgment for that of the trial court and may not disturb the trial

court’s decision unless it is shown to be arbitrary and unreasonable. In re Sanders, 153 S.W.3d 54,

56 (Tex. 2004). Thus, we cannot set aside the trial court’s finding unless it is clear from the record

that the trial court could have reached only one decision. In re Nitla S.A. de C.V., 92 S.W.3d

419, 422 (Tex. 2002). On the other hand, our review of the trial court’s legal determinations is

much less deferential. Walker v. Packer, 827 S.W.2d 833, 840 (Tex. 1992). A trial court has no

discretion in determining what the law is or in applying the law to the particular facts. See In re

Department of Fam. & Protective Servs., 273 S.W.3d 637, 643 (Tex. 2009).

DISCUSSION

A party seeking conservatorship of a child must have standing to seek such relief.

In re S.M.D., 329 S.W.3d 8, 12-13 (Tex. App.—San Antonio, pet. dism’d). In the context of a

SAPCR, “standing is governed by the Texas Family Code” and “[t]he party seeking relief must

allege and establish standing within the parameters of the language used in the statute.” Id.

(quoting In re H.G., 267 S.W.3d 120, 124 (Tex. App.—San Antonio 2008, pet. denied)).

In their petition to modify, Grandfather and Uncle asserted several statutory bases

to support their claim of standing to file suit, including Section 102.004(a)(1) of the Family

Code. Section 102.004(a)(1) states:

[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 . . . the order requested is necessary
because the child’s present circumstances would significantly impair the child’s
physical health or emotional development.

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Tex. Fam. Code § 102.004(a)(1) (‘Standing for Grandparent or Other Person”); see also id.

§ 156.002(b) (establishing that “[a] person or entity who, at the time of filing, has standing to sue

under Chapter 102 may file a suit for modification in the court with continuing, exclusive

jurisdiction”). This provision “is intended to restrict grandparent [and certain other nonparents]

standing to bring a SAPCR solely to ‘certain extreme circumstances.’” Medrano v. Zapata,

No. 03-12-00131-CV, 2013 WL 6921500, at *6 (Tex. App.—Austin Dec. 31, 2013, no pet.)

(mem. op.) (citations omitted). A grandparent or other nonparent does not satisfy his burden by

presenting evidence that shows he “would be a better custodian of the child or that []he has a

strong and on-going relationship with the child.” In re S.M.D., 329 S.W.3d at 16 (discussing

significant-impairment requirement in Section 102.004(b)).

“Satisfactory proof to the court,” as used in Section 102.004(a)(1), denotes proof

by a preponderance of the evidence. See, e.g., id. at 13. “Present circumstances” refers to the

circumstances in existence as of the date the suit requesting managing conservatorship is filed.

See Medrano, 2013 WL 6921500, at *7. In other words, the party seeking conservatorship

must show, by a preponderance of the evidence, facts establishing that standing existed at the

time suit was filed in the trial court, and if he cannot, the trial court must dismiss the suit.

See e.g., In re S.M.D., 329 S.W.3d at 13.

Here, because the trial court did not make any express fact findings in ruling on

Mother’s motion to dismiss, we will infer that the trial court made all the fact findings necessary

to support the legal conclusion that Grandfather and Uncle have standing, including any fact

findings that would support a determination of standing under Section 102.004(a)(1). See BMC

Software Belg., N.V. v. Marchand, 83 S.W.3d 789, 795 (Tex. 2002). Accordingly, we assume

that the trial court made the implied finding that when Grandfather and Uncle filed their petition

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for modification, appointment of Mother as the child’s managing conservator would significantly

impair the child’s physical health or emotional development.1 In her petition to this Court,

Mother argues Grandfather and Uncle presented no evidence that would support such an implied

finding and therefore the trial court abused its discretion to the extent it concluded that they have

established standing under Section 102.004(a)(1).

To support a finding that appointment of a parent as sole managing conservator

would significantly impair the child, either physically or emotionally, the evidence must do more

than merely raise a suspicion or speculation of possible harm. In re B.B.M., 291 S.W.3d 463,

467 (Tex. App.—Dallas 2009, pet. denied) (discussing significant-impairment requirement under

analogous provision in Family Code, Section 153.131). Instead, the nonparent must “offer

evidence of specific actions or omissions of the parent that demonstrate an award of custody

to the parent would result in physical or emotional harm to the child.” Lewelling v. Lewelling,

796 S.W.2d 164, 167 (Tex. 1990). In other words, the evidence must support a logical inference

that the parent’s specific, identifiable behavior or conduct will probably result in serious harm to

the child’s physical or emotional well-being. Whitworth v. Whitworth, 222 S.W.3d 616, 623

(Tex. App.—Houston [1st Dist.] 2007, no pet.). Acts or omissions that constitute significant

1
As to “present circumstances” in this case, we note that it is undisputed that Mother,
as the child’s surviving parent, has a superior right to present possession of the child which
she could, absent this suit, enforce by seeking a writ of habeas corpus. Greene v. Schuble,
654 S.W.2d 436, 437-38 (Tex. 1983) (“In the absence of specific provisions to the contrary in
an order establishing conservatorship, the death of the managing conservator ends the
conservatorship order and it no longer constitutes a valid subsisting court order for purposes of [a
habeas proceeding].”); see also Tex. Fam. Code § 157.376 (recognizing that, if no order exists
governing right to possession of child, child shall be returned to parent if right of possession is
between parent and nonparent and no SAPCR has been filed). Consequently, the “child’s present
circumstances” in this case include Mother’s right, as the surviving parent, to sole possession of
the child.
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impairment include, but are not limited to, physical abuse, severe neglect, abandonment, drug or

alcohol abuse, or immoral behavior by a parent. In re B.B.M., 291 S.W.3d at 469.

Mother’s testimony establishes that she and Father began using drugs, including

marijuana and methamphetamine, sometime prior to 2015 and that Mother continued to use

drugs and have drug-addiction issues until she completed a drug-rehabilitation program in June

2017. Mother testified that she used methamphetamine until she found out she was pregnant

with her second child and that she used heroin after her second child was born. By her own

admission, Mother’s drug use prevented her from being able to care for her second child, and

consequently, she voluntarily relinquished her parental rights to that child. Mother explained to

the trial court that she came to an agreement with her own father that he would adopt that child

because, “I needed to work on myself. I mean I can’t take care of a child if I can’t take care of

myself first.” She testified that although she had unsuccessfully tried to quit using drugs before,

she has been able to successfully remain sober this time because she is with her family and she

has let them help her. Although it is undisputed that at the time of the hearing in this case,

Mother was not actively using illegal drugs and that she was working toward rebuilding her life,

when Grandfather and Uncle filed their petition for modification, it had been less than 17 months

since Mother had completed her drug-rehabilitation program.

Evidence of past misconduct, standing alone, may not be sufficient to show

present unfitness of a parent. See In re Mitchell, 585 S.W.3d 38, 48 (Tex. App.—Texarkana

2019, no pet.) (citing R.H. v. D.A., No. 03-16-00442-CV, 2017 Tex. App LEXIS 1743, at *7

(Tex. App.—Austin Mar. 2, 2017, pet. dism’d) (mem. op.)). However, a factfinder may infer the

present fitness of the parent to be managing conservator from the parent’s recent, deliberate past

misconduct. Id. Based on the evidence before it regarding Mother’s past drug use—including

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the length of her sobriety and the severity of her prior drug use—the trial court could have

reasonably inferred that when Grandfather and Uncle filed their petition, Mother’s drug use

would probably result in serious harm to the child’s physical or emotional well-being. See

Whitworth, 222 S.W.3d at 623. Consequently, we cannot conclude that the trial court’s resolution

of this factual issue is arbitrary or unreasonable or that its determination that Grandfather and

Uncle have established standing is legally incorrect.2

CONCLUSION

Because we cannot conclude that the trial court abused its discretion in denying

Mother’s motion to dismiss, her petition for mandamus relief is denied. See Tex. R. App.

P. 52.8(a).

2
In addition to Section 102.004(a)(1) of the Family Code, Grandfather and Uncle also
pleaded that they have standing to file suit under Section 102.003, subsection (a)(9) and
subsection (a)(11), and under Section 102.004(b). See Tex. Fam. Code §§ 102.003(a)(9)
(establishing that original suit may be filed by “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”), (a)(11) (establishing that original suit may
be filed by “person with whom the child and the child’s guardian, managing conservator, or
parent have resided for at least six months ending not more than 90 days preceding the date of
the filing of the petition if the child’s guardian, managing conservator, or parent is deceased at
the time of the filing of the petition”), .004(b) (establishing that grandparent may not file original
suit requesting possessory conservatorship but that court may grant grandparent leave to
intervene in pending suit under certain circumstances). In her petition, Mother argues that the
trial court abused its discretion to the extent it concluded that Grandfather and Uncle established
standing under any of these statutory provisions. Because we determine that the trial court could
have reasonably concluded that Grandfather and Uncle established standing under Section
102.004(a)(1), we need not decide whether the trial court would have jurisdiction under the other
pleaded grounds.
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 __________________________________________
Chari L. Kelly, Justice

Before Chief Justice Rose, Justices Kelly and Smith

Filed: October 28, 2020

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