NUMBER 13-18-00622-CV
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
IN THE INTEREST OF B.U.H., J.R.H., R.W.H., AND P.L.H.
On appeal from the 24th District Court
of Victoria County, Texas.
CONCURRING AND DISSENTING
MEMORANDUM OPINION
Before Chief Justice Contreras and Justices Longoria and Perkes
Concurring and Dissenting Memorandum Opinion by
Chief Justice Contreras
I agree with the majority that appellees did not establish standing under
§ 102.003(a)(9) of the family code, but I would find that appellees instead had standing
to sue under § 102.004(a)(1). That said, I would further find that the trial court should
have dismissed the underlying cause as to the two eldest children because another court
already had continuing, exclusive jurisdiction over those children. As to the two younger
children, W.I.H.’s issues lack merit. Therefore, I concur in part and dissent in part.
I. BACKGROUND
In their June 16, 2016 original petition, appellees alleged that they had standing
under § 102.003(a)(9) and that “[n]o court has continuing jurisdiction of this suit or of the
children the subject of this suit.” In an affidavit attached to the petition, appellee W.S., the
children’s grandmother, averred as follows:
My name is [W.S.], I am the petitioner in this case. My daughter [K.H.] has
left her children in my care on January 18, 2016. My daughter has no fixed
residence or stability and I fear she will pick up the children and attempt to
remove them. There have been sanitation and cleanliness issues with the
home that she was having the children in. I fear for the safety of the children
as she has no vehicle or home to have the children in. [The Department]
has been involved with these children and had placed [K.H.] on a safety
plan. [K.H.] has let the Medicaid lapse on three of the children and would
not be able to provide medical care. The psychological effect of my daughter
[K.H.] visiting the children when she has met with them is negative and
affecting their schooling and behavior. She has not attended any doctor’s
appointments for the children since she left the children in my care and has
a history of not following up with the children’s medical appointments and
missing appointments. My daughter [K.H.] has not shown that she is able
to handle being the sole caregiver of the children when she previously had
care of them or provide basic care for them. We would ask the Court to not
let her remove the children until we have a hearing establishing Temporary
Orders.
[K.H.], a party in this case, is a transient person. I have exercised due
diligence to locate the whereabouts of this party and have been unable to
do so.
The trial court’s temporary restraining order, temporary injunction, and final judgment
each stated that the court had jurisdiction over the case and all the parties, but those
orders did not specify the basis for appellees’ standing.
W.I.H. filed an answer on July 8, 2016, conceding that the trial court had jurisdiction
over the cause but denying that appointment of appellees as managing conservators was
in the children’s best interests. W.I.H. later filed another “Original Answer” on February
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20, 2018, in which he additionally argued, among other things, the following: (1) appellees
lack standing because they did not have “actual care, control, and possession” of the
children for at least six months at the time their petition was filed; (2) W.S.’s affidavit did
not name him personally and therefore, the trial court erred in excluding him from
possession of the children in its temporary orders; and (3) the trial court lacks jurisdiction
because continuing exclusive jurisdiction lies in the 25th District Court of Lavaca County.
In support of the latter argument, W.I.H. noted that the Office of the Attorney General
(OAG) had brought a child support review action against him and K.H. in the 25th District
Court in 2012. He attached a copy of a final order rendered by the 25th District Court on
July 23, 2012, compelling W.I.H. to pay monthly cash medical support and K.H. to apply
for Medicaid on behalf of B.U.H. and J.R.H. 1
The record reflects that the OAG filed an “Original Petition in [SAPCR], Suit for
Modification, and Motion to Confirm Support Arrearage” in the 25th District Court on June
21, 2016—five days after the instant custody suit was brought by appellees in Victoria
County. By this pleading, the OAG sought to (1) modify the 2012 child support order as
to B.U.H. and J.R.H., and (2) establish a child support obligation as to R.W.H. and P.L.H.
On September 7, 2017, W.S. filed a motion to transfer as “intervenor” in the 25th District
Court proceedings. The motion argued that the children’s principal residence is located
in both DeWitt County and Victoria County and asked for the matter to be transferred to
the latter forum. The 25th District Court granted the motion to transfer over W.I.H.’s written
objection, and the 24th District Court then consolidated the transferred matter with the
instant case.
1 R.W.H. and P.L.H. were born subsequent to this order.
3
According to the final judgment, W.S. and B.S. appeared with counsel at trial on
August 20, 2018. The judgment states that K.H. and W.I.H., though properly notified and
served with citation, did not appear. The appellate record does not contain a transcript of
the trial. 2
The trial court’s findings of fact and conclusions of law stated in part as follows:
Non-Exclusive Findings of Fact
The Court makes the following findings, by clear and convincing evidence:
....
6. As of the filing of this suit, the children subject of this suit had been
in the actual care, custody, and possession of the Petitioners for at
least six months ending not more than 90 days preceding the date of
the petition filed in this case.
....
15. Respondent, [K.H.], has had no significant contact with the children
subject of this suit since the filing of Petitioner[s’] suit.
16. The whereabouts of Respondent, [K.H.], is generally unknown to
Petitioners as Respondent [K.H.] appears to be a transient person.
17. Respondent, [K.H.], has an alleged history of abusing controlled
substances and criminal activity.
18. Respondent, [K.H.], has not provided child support, food, clothing,
shelter, medical care, or other necessities of the children since at
least the filing of Petitioner[s’] suit.
19. Respondent, [W.I.H.], has had no significant contact with the children
subject of this suit since the filing of Petitioner[s’] suit.
20. Respondent, [W.I.H.], has not yet been granted parole by the Texas
Department of Criminal Justice and any date of release is unknown
to the Court.
21. Respondent, [W.I.H.], has a history of criminal activity as
Pursuant to W.I.H.’s request, this Court abated the appeal and remanded to the trial court in 2019
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to determine whether the clerk’s or reporter’s records were incomplete and to render any orders necessary
to ensure the records are complete. The trial court confirmed in an order that the records are complete.
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demonstrated by his incarceration with the Texas Department of
Criminal Justice.
22. Respondent, [W.I.H.], has not provided child support, food, clothing,
shelter, medical care, or other necessities of the children since at
least the filing of Petitioner[s’] suit.
....
Non-Exclusive Conclusions of Law
The Court makes the following conclusions of law:
1. The Court has jurisdiction of the parties to the suit and the children
subject of this suit.
2. Petitioners [W.S.] and [B.S.] have standing to bring their suit.
3. Petitioners [W.S.] and [B.S.] should be appointed as joint managing
conservators of the children subject of this suit.
4. Respondent [K.H.] should be appointed as possessory conservator
of the children subject of this suit.
5. Respondent [W.I.H.] should be appointed as possessory conservator
of the children subject of this suit.
II. DISCUSSION
A. Standing
By his first issue on appeal, W.I.H. contends the trial court lacked jurisdiction
because appellees did not have standing to sue. Standing is a component of subject
matter jurisdiction. Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 445 (Tex.
1993). Generally, a plaintiff has the initial burden to allege facts that affirmatively
demonstrate the court’s jurisdiction to hear the case. Id. “When reviewing standing on
appeal, we construe the petition in favor of the plaintiff and, if necessary, review the entire
record to determine whether any evidence supports standing.” Deluxe Barber Sch., LLC
v. Nwakor, 609 S.W.3d 282, 291 (Tex. App.—Houston [14th Dist.] 2020, pet. filed); see
Tex. Ass’n of Bus., 852 S.W.2d at 445; In re R.E.R., 534 S.W.3d 1, 6 (Tex. App.—Corpus
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Christi–Edinburg 2016, no pet.).
The majority correctly concludes that appellees did not have “actual care, control,
and possession” of the minor children at issue “for at least six months ending not more
than 90 days preceding the date of the filing of the petition.” The record firmly shows that
the children were left in appellees’ care on January 18, 2016, and that appellees filed their
original petition on June 17, 2016. The petition was premature because appellees had
care of the children for under six months at the time it was filed. See TEX. FAM. CODE ANN.
§ 102.003(a)(9).
However, even when the requisites of § 102.003(a)(9) are not met, a grandparent
has standing to seek managing conservatorship of a child under family code
§ 102.004(a)(1) 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.” See TEX. FAM. CODE ANN. § 102.004(a)(1).
The evidence in the record supports a finding of standing under this section. 3 Specifically,
W.S. stated in her affidavit that: (1) K.H., the children’s mother, “has no fixed residence
or stability” and is “transient”; (2) there were “sanitation and cleanliness issues” with the
home K.H. previously was living in with the children; (3) CPS has been involved with these
children and had placed [K.H.] on a safety plan; (4) K.H. let the children’s Medicaid
coverage lapse and “would not be able to provide medical care”; (5) K.H.’s visits have
had a “negative” “psychological effect” on the children which has “affected their schooling
3 Appellees did not plead § 102.004(a)(1) as a basis for standing in their petition; instead, they
pleaded only § 102.003(a)(9) as a basis for standing. This is presumably why the majority does not analyze
the merits of standing under § 102.004(a)(1). However, given the facts and circumstances of this case, it
would not be appropriate or in the best interests of the children to restrict the standing analysis to only the
specific grounds raised in the petition.
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and behavior”; (6) K.H. did not attend the children’s doctor’s appointments and “has a
history of not following up” with such appointments; and (7) K.H. “has not shown that she
is able to handle being the sole caregiver” for the children or to “provide basic care for
them.”
Additionally, at the hearing on appellees’ motion to consolidate, W.S. agreed that
K.H. had been “in and out of jail” during the pendency of the case. W.S. also testified that
W.I.H. has been incarcerated throughout the pendency of this case and was serving a
ten-year prison sentence that began in 2014. W.S. requested an order making her and
B.S. managing conservators of the children and providing that K.H. and W.I.H. would
have supervised visitation. W.S. specifically agreed with her counsel that such an order
would be in the children’s best interests and that, without such an order, “either [K.H.] or
[W.I.H.] could just come get the kids and that would significantly impair their physical
health or emotional well being.”
This evidence supports an implicit finding by “satisfactory proof” that the order
requested by appellees was necessary because the children’s then-present
circumstances would significantly impair their physical health or emotional development.
See id. Therefore, I would conclude that appellees had standing under § 102.004(a)(1),
and I would overrule W.I.H.’s first issue on appeal.
B. Continuing Exclusive Jurisdiction
Aside from standing, W.I.H. raises several other issues contesting the trial court’s
judgment. By his third issue, W.I.H. argues the trial court lacked jurisdiction over B.U.H.
and J.R.H. because the 25th District Court had acquired continuous, exclusive jurisdiction
over those children by rendering its final order in 2012 in the OAG’s child support review
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action. See id. § 155.001(a) (“Except as otherwise provided by this section, a court
acquires continuing, exclusive jurisdiction over the matters provided for by this title in
connection with a child on the rendition of a final order.”); id. § 155.001(c) (“If a court of
this state has acquired continuing, exclusive jurisdiction, no other court of this state has
jurisdiction of a suit with regard to that child except as provided by this chapter, Section
103.001(b) [concerning suits requesting adoption], or Chapter 262 [concerning suits by
governmental entities to protect the health and safety of a child].”); id. § 155.002 (“Except
as otherwise provided by this subchapter, a court with continuing, exclusive jurisdiction
retains jurisdiction of the parties and matters provided by this title.”).
As noted, the record reflects that W.S. filed a motion to transfer the child support
action as “intervenor” in the 25th District Court; the 25th District Court granted the motion
and transferred the case to the 24th District Court; and the 24th District Court then
consolidated the transferred matter with the instant suit. W.I.H.’s third issue argues in part
that the 25th District Court erred in granting W.S.’s motion to transfer because the motion
to transfer was untimely. I agree.
A party may move to transfer a SAPCR from a court which has already acquired
continuing exclusive jurisdiction. See id. §§ 155.201–.207. If the motion to transfer is filed
“by a petitioner or movant,” it is “timely if it is made at the time the initial pleadings are
filed.” Id. § 155.204(b). On the other hand, if a motion to transfer a SAPCR is made by a
party other than a petitioner or movant, the motion “is timely if it is made on or before the
first Monday after the 20th day after the date of service of citation or notice of the suit or
before the commencement of the hearing, whichever is sooner.” Id. Here, W.S.’s motion
to transfer was filed on September 7, 2017, which is more than five years after the child
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support review action was initially brought and more than fourteen months after the OAG
filed its motion to modify. Therefore, regardless of whether W.S. is considered a
“petitioner or movant” or neither, her motion to transfer was untimely filed. See id.
A trial court does not have authority to transfer a SAPCR in the absence of a timely-
filed motion to transfer. In re C.G., 495 S.W.3d 40, 45 (Tex. App.—Corpus Christi–
Edinburg 2016, pet. denied); Alexander v. Russell, 699 S.W.2d 209, 210 (Tex. 1985) (per
curiam) (“Any attempted transfer of this cause to the 327th District Court was not for a
reason authorized under [the family code] and therefore the judge had no authority to
transfer the cause.”); see TEX. FAM. CODE ANN. §§ 155.201, 202. Thus, the 25th District
Court retained continuing, exclusive jurisdiction over the children subject to the 2012 final
child support order—B.U.H. and J.R.H. I would sustain W.I.H.’s third issue and conclude
that the trial court’s orders concerning B.U.H. and J.R.H. should be reversed and the
matters remanded for consideration by the 25th District Court. See TEX. FAM. CODE ANN.
§ 155.104(b) (“If a final order is rendered in the absence of the filing of the information
from the vital statistics unit, the order is voidable on a showing that a court other than the
court that rendered the order had continuing, exclusive jurisdiction.”).
C. Temporary Orders
By his second issue, W.I.H. contends that the trial court abused its discretion by
issuing temporary orders excluding him from possession of the children. Section
105.001(c) of the family code provides that, “[e]xcept on a verified pleading or an affidavit
in accordance with the Texas Rules of Civil Procedure, an order may not be
rendered . . . excluding a parent from possession of or access to a child.” Id. § 105.001(c).
W.I.H. observes that W.S.’s supporting affidavit does not mention him—it only mentions
9
K.H.—and he argues that the temporary orders therefore violated the statute. He further
contends that the temporary orders violated public policy as expressed in the family code.
See id. § 153.001(a)(1) (“The public policy of this state is to . . . assure that children will
have frequent and continuing contact with parents who have shown the ability to act in
the best interest of the child . . . .”). However, the final order allows W.I.H. to have
supervised visitation with the children, and any complaint about the temporary orders is
now moot. See In re E.R.W., 528 S.W.3d 251, 257 (Tex. App.—Houston [14th Dist.] 2017,
no pet.) (“Because the trial court since has rendered a final judgment, Mother’s complaints
about the temporary orders authorizing emergency removal are moot.”); see also In re
A.K., 487 S.W.3d 679, 683 (Tex. App.—San Antonio 2016, no pet.) (“[A] temporary order
is superseded by entry of a final order of termination, rendering moot any complaint about
the temporary order.”). Accordingly, I would overrule W.I.H.’s second issue.
D. Other Issues
By his fourth enumerated issue, W.H. contends that the trial court’s ruling
constituted a “subversion of parental rights.” He does not support the issue with argument
or references to authority; therefore, it is waived. See TEX. R. APP. P. 38.1(i).
By his fifth and sixth issues, W.I.H. argues the trial court made “improper findings
of fact” and “improper conclusions of law.” I would construe this issue as challenging the
merits of the trial court’s order granting managing conservatorship to appellees. A trial
court’s decision to modify conservatorship is reviewed under an abuse of discretion
standard. Gillespie v. Gillespie, 644 S.W.2d 449, 451 (Tex. 1982). Under this standard,
legal and factual sufficiency of the evidence are not independent grounds for asserting
error, but are relevant factors in determining whether the trial court abused its discretion.
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Niskar v. Niskar, 136 S.W.3d 749, 753 (Tex. App.—Dallas 2004, no pet.); In re Davis, 30
S.W.3d 609, 614 (Tex. App.—Texarkana 2000, no pet.). In determining whether the trial
court abused its discretion, we consider whether the trial court had sufficient evidence
upon which to exercise its discretion and, if so, whether it erred in the exercise of that
discretion. In re W.C.B., 337 S.W.3d 510, 513 (Tex. App.—Dallas 2011, no pet.). We
consider only the evidence most favorable to the trial court’s ruling and will uphold its
judgment on any legal theory supported by the evidence. Worford v. Stamper, 801 S.W.2d
108, 109 (Tex. 1990) (per curiam); Niskar, 136 S.W.3d at 753–54.
W.I.H. takes issue with the following findings and conclusions:
6. As of the filing of this suit, the children subject of this suit had been
in the actual care, custody, and possession of the Petitioners for at
least six months ending not more than 90 days preceding the date of
the petition filed in this case.
....
16. The whereabouts of Respondent, [K.H.], is generally unknown to
Petitioners as Respondent [K.H.] appears to be a transient person.
....
19. Respondent, [W.I.H.], has had no significant contact with the children
subject of this suit since the filing of Petitioner’s suit.
20. Respondent, [W.I.H.], has not yet been granted parole by the Texas
Department of Criminal Justice and any date of release is unknown
to the Court.
....
22. Respondent, [W.I.H.], has not provided child support, food, clothing,
shelter, medical care, or other necessities of the children since at
least the filing of Petitioner’s suit.
....
1. The Court has jurisdiction of the parties to the suit and the children
subject of this suit.
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2. Petitioners [W.S.] and [B.S.] have standing to bring their suit.
3. Petitioners [W.S.] and [B.S.] should be appointed as joint managing
conservators of the children subject of this suit.
I have already concluded that the record evidence does not support a finding that
appellees had actual care, control, and possession of the children for six months
preceding the filing of their original petition; therefore, finding of fact number 6 is improper.
However, as already explained, I believe that finding is immaterial because the evidence
shows appellees had standing under family code § 102.004(a)(1). The remaining findings
of fact challenged by W.I.H. are supported by evidence, and the conclusions of law were
within the trial court’s discretion. In particular, the record supports the trial court’s finding
that its order was in the best interests of the children. See TEX. FAM. CODE ANN. § 153.002
(“The best interest of the child shall always be the primary consideration of the court in
determining the issues of conservatorship and possession of and access to the child.”). I
would overrule appellant’s fifth and sixth issues.
III. CONCLUSION
I would find that the court lacked jurisdiction over B.U.H. and J.R.H. because the
25th District Court retained continuing exclusive jurisdiction over those children.
Therefore, I concur in the majority’s judgment as to B.U.H. and J.R.H. However, I would
find that the trial court properly exercised jurisdiction over R.W.H. and P.L.H. and that
W.I.H.’s other issues are meritless. I would affirm the trial court’s judgment as to R.W.H.
and P.L.H., and I respectfully dissent in part on that basis.
DORI CONTRERAS
Chief Justice
Delivered and filed the
3rd day of December, 2020.
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