In the Interest of I.I.G.T., a Child ( 2013 )

AFFIRMED; Opinion Filed October 7, 2013.
S In The
Court of Appeals
Fifth District of Texas at Dallas
No. 05-11-01109-CV
IN THE INTEREST OF I.I.G.T., A CHILD
On Appeal from the 254th Judicial District Court
Dallas County, Texas
Trial Court Cause No. DF-09-12092-R
OPINION
Before Justices FitzGerald, Francis, and Myers
Opinion by Justice Myers
This appeal concerns the standing of a person not related to the child to bring a suit
affecting the parent-child relationship (SAPCR). The trial court granted the child’s mother’s
plea to the jurisdiction and dismissed Roderick Alexander’s suit to establish conservatorship. In
his sole issue on appeal, appellant contends the trial court erred by granting Mother’s plea to the
jurisdiction. We affirm the trial court’s judgment.
BACKGROUND
The child was born October 23, 2001 in Louisiana. In March 2009, Mother completed an
acknowledgment of paternity stating appellant was the child’s biological father. Three months
later, Mother filed a petition in Dallas to rescind the acknowledgment of paternity. Appellant
filed a general denial and a counterpetition requesting he be appointed joint managing
conservator with Mother and that the court order genetic testing to establish his status as the
child’s father. On September 1, 2009, genetic testing established that appellant was not the
child’s father. Mother asserted appellant lacked standing to bring his counterpetition and moved
for dismissal of appellant’s suit. On November 18, 2009, the trial ordered “this case be
dismissed for lack of evidence, due to test results showing that [appellant] is not the father of [the
child].” The court also ordered that appellant be omitted from the child’s birth certificate and
that appellant was denied custody and visitation.
On December 9, 2009, the court entered an amended judgment that found appellant was
not the biological parent of the child but found he was “a psychological dad,” and the court
appointed Mother and appellant joint managing conservators. Mother filed a motion for new
trial, which was granted.
In April 2010, Mother filed another plea to the jurisdiction asserting appellant lacked
standing to bring his suit for conservatorship, and on April 26, 2010, the trial court held a hearing
on the plea to the jurisdiction. On December 23, 2010, the trial court granted the plea to the
jurisdiction, 1 dismissed appellant’s counterpetition for conservatorship, and denied all his claims
for relief. Appellant filed a motion for new trial and a motion for reconsideration; following a
hearing, the trial court denied the motions.
STANDING
In his sole issue, appellant contends the trial court erred by sustaining Mother’s plea to
the jurisdiction and dismissing appellant’s counterpetition seeking conservatorship for lack of
standing.
A person seeking conservatorship of a child must have standing to bring suit. In re
M.K.S.-V., 301 S.W.3d 460, 463 (Tex. App.—Dallas 2009, pet. denied). Standing is a
component of subject-matter jurisdiction and is a constitutional prerequisite to maintaining a
1
In this judgment, the trial court states, “While [Mother] may have allowed Mr. Alexander to form a relationship and bond with the child,
this is not sufficient to support standing for him to sue [Mother] for custody of or visitation with the minor child.”
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lawsuit. See Tex. Ass’n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 443–44 (Tex. 1993);
M.K.S.-V., 301 S.W.3d at 463. We review standing under the same standard we use for subject-
matter jurisdiction generally: whether the pleader alleged facts that affirmatively demonstrated
the court’s jurisdiction to hear the cause. Tex. Ass’n of Bus., 852 S.W.2d at 446; M.K.S.-V., 301
S.W.3d at 463. When reviewing an order dismissing a cause for want of jurisdiction, appellate
courts “construe the pleadings in favor of the plaintiff and look to the pleader’s intent.” Tex.
Ass’n of Bus., 852 S.W.2d at 446 (quoting Huston v. Fed. Deposit Ins. Corp., 663 S.W.2d 126,
129 (Tex. App.—Eastland 1983, writ ref’d n.r.e.)). When a plea to the jurisdiction challenges
the existence of jurisdictional facts and the evidence raises a fact question as to those facts, the
fact issue must be resolved by the trier of fact. Tex. Dep’t of Parks & Wildlife v. Miranda, 133
S.W.3d 217, 227–28 (Tex. 2004).
Standing in SAPCRs is governed by the family code, and a party bringing a SAPCR must
plead and establish standing under the family code’s provisions. M.K.S.-V., 301 S.W.3d at 464.
If the party fails to do so, the trial court must dismiss the suit. Id. A party’s standing to pursue a
cause of action is a question of law. Id. A court deciding a plea to the jurisdiction should
consider evidence and review the substance of the legal claims only to the extent necessary to
determine whether subject-matter jurisdiction over the case exists. In re M.P.B., 257 S.W.3d
804, 808 (Tex. App.—Dallas 2008, no pet.); see Bland Indep. Sch. Dist. v. Blue, 34 S.W.3d 547,
555 (Tex. 2000). When, as here, the trial court makes no separate findings of fact and
conclusions of law, we must draw every reasonable inference supported by the record in favor of
the trial court’s judgment. M.P.B., 257 S.W.3d at 808. We review the trial court’s implied
factual findings for legal and factual sufficiency, and we review the trial court’s implied legal
conclusions de novo. Id. Under both standards, the trial court is the sole judge of the credibility
of the witnesses and the weight to be given their testimony, and we will not disturb the court’s
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resolution of evidentiary conflicts that turn on credibility determinations or the weight of the
evidence. See City of Keller v. Wilson, 168 S.W.3d 802, 819 (Tex. 2005); Golden Eagle
Archery, Inc. v. Jackson, 116 S.W.3d 757, 761 (Tex. 2003).
In this case, appellant alleged standing to bring a SAPCR under section 102.003(a)(9), 2
which provides:
(a) An original suit may be filed at any time by: . . .
(9) 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 Supp. 2012). In computing the time under that
provision, “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.” Id. § 102.003(b). A “principal residence” is (1) a fixed place of
abode; (2) occupied consistently over a substantial period of time; (3) that is permanent rather
than temporary. M.K.S.-V., 301 S.W.3d at 464; M.P.B., 257 S.W.3d at 809.
Appellant filed his SAPCR on July 14, 2009. Appellant testified he had sole possession
of the child for six months in 2005. Appellant testified he had possession of the child and
“maintained care, custody, and control” of the child every weekend in 2009 pursuant to a
“permanent arrangement” between him and Mother. He also picked up the child from daycare
and school once or twice a week. He testified the child has her own bedroom at his house that
she decorates herself. Appellant also testified he was at almost every medical and dental
appointment of the child’s. He stated he had attended all the school functions where the child
2 Appellant also alleged he had standing under sections 102.003(b), 102.005(5), and 153.312. Section 102.003(b) is not a basis for standing
but provides instructions for computing time under other standing provisions, including section 102.003(a)(9); section 102.003(b) is discussed
below. TEX. FAM. CODE ANN. § 102.003(b) (West Supp. 2012). Section 102.005(5) concerns standing in suits for adoption by an adult who has
had substantial past contact with the child sufficient to warrant standing. Id. § 102.005(5). Section 153.312 does not concern standing but
provides the requirements for the standard possession order when parents reside 100 miles or less apart. Id. § 153.312. Appellant does not assert
on appeal that any of these provisions provide him standing to bring the SAPCR.
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received trophies and awards. He said he did everything a father would do. He testified he was
involved in disciplining the child and helped with her physical, emotional, and health
requirements. He stated he contacted Mother about any problem with the child, but he said
Mother did not always contact him with the child’s problems. He also testified to financial
support for the child, including paying for her daycare; buying her clothes, shoes, and school
supplies; providing her with food at his house; getting her hair done; and “school projects and
programs.” He presented evidence that Mother listed him as the child’s father on records with
the child’s school and the YMCA.
Mother testified the child never “lived with” appellant but would only “visit him.”
During some summer breaks, the child stayed with appellant’s mother. Mother also testified that
she and appellant discussed having the child live with appellant during the 2009 to 2010 school
year, “but this was not an agreement that we had, no. That was a discussion.” Mother agreed
that appellant had a significant past relationship with the child. Mother testified she listed
appellant as the child’s father on the school and YMCA forms to simplify his being able to pick
up the child if she was not able to pick her up. She testified that on weekends and holidays,
appellant would ask if he could take the child. Mother testified that if she did not have any
plans, then she would let appellant take the child. She testified they did not have a plan for his
possession of the child; instead, she thought he was just a friend helping her out.
Appellant argues this case is analogous to three other cases, In re M.K.S.-V, 301 S.W.3d
460 (Tex. App.—Dallas 2009, no pet.), Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App.—El
Paso 2002, no pet.), and In re M.P.B., 257 S.W.3d 804 (Tex. App.—Dallas 2008, no pet.). In
M.K.S.-V., two women living together decided to rear a child, and one of the women conceived
through in vitro fertilization. Id. at 462. When the child was a year old, the women separated,
but they entered into an agreement for the nonparent to have regular access to and possession of
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the child. Id. They followed this schedule for two years. Id. However, when the mother
refused to let the nonparent have further access to the child, the nonparent filed suit seeking to be
appointed joint managing conservator. Id. The trial court dismissed the suit, concluding that the
nonparent lacked standing. Id. at 463. We reversed and concluded the parties’ agreement for
possession of the child was similar to the standard possession order under the family code. Id. at
465; see TEX. FAM. CODE ANN. § 153.312 (West Supp. 2012) (standard possession order for
parents residing within 100 miles of one another). We described how the child had her own
bedroom at the nonparent’s house; the regular visitation schedule; how the nonparent was listed
as a parent on the school records, picked up the child from school, and attended school functions;
how the two women, with the child, continued to attend church together as a family unit after
they separated; and how the nonparent established a college fund for the child. M.K.S.-V., 301
S.W.3d at 465. We stated,
[T]he record does not suggest this pattern of possession and caregiving was
intended to be a temporary arrangement. To the contrary, the possession
agreement and the parties’ actions evinced an intent that the child occupy [the
nonparent’s] home consistently over a substantial period of time.
Id. (citation omitted).
In Doncer v. Dickerson, 81 S.W.3d 349 (Tex. App.—El Paso 2002, no pet.), the child’s
parents were divorced, and the father married Doncer, who became the child’s stepmother. See
Doncer, 81 S.W.3d at 351–52. Pursuant to an agreed order, the mother and father shared
possession of the child equally with the mother having the right to establish the child’s primary
residence. Id. at 351. Because the father and Doncer were married and lived together, the
father’s residence was also Doncer’s residence. See id. at 361. After three years of equally
shared custody and seventeen months under the agreed order, the father died and the mother
terminated contact between Doncer and the child. Id. at 351–52. Doncer brought suit seeking
possessory conservatorship, and the trial court dismissed Doncer’s suit for lack of standing. The
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trial court interpreted “principal residence” under section 102.003(b) to be the same as “primary
residence” under section 153.134(b)(1). Id. at 352 n.1; compare FAM. § 102.003(b) (requiring
the court to consider the child’s “principal residence” in calculating the time of actual care
control and possession of the child under section 102.003(a)(9)); with FAM. § 153.134(b)(1)
(West 2008) (requiring trial court to designate the conservator with the exclusive right to
determine the child’s “primary residence”). The trial court concluded that Doncer had not
established actual, care, control, and possession of the child for six months. Doncer, 81 S.W.3d
at 352. The court of appeals reversed, stating:
By virtue of the joint managing conservatorship agreement, [the mother] and [the
father] intended [the child] to occupy the Doncer home consistently, over a
substantial period of time, at least until he attained majority. It was not intended
to be a temporary arrangement to facilitate momentary housing difficulties,
inconvenient travel schedules, the pursuit of higher education, or the inability to
provide child care.
Id. at 362.
In this case, because the trial court found appellant lacked standing and the court did not
make findings of fact and conclusions of law, we must draw every reasonable inference
supported by the record in support of the trial court’s judgment. M.P.B., 257 S.W.3d at 808.
Although aspects of M.K.S.-V. and Doncer are similar to the case before us, those cases are
distinguishable because the parties in M.K.S.-V. had a contractual possession schedule similar to
the standard possession order and the parties in Doncer had an agreed possession order. In this
case, there was no court order for appellant’s possession of the child before he filed suit, and the
evidence conflicts on whether appellant and Mother had an agreement for appellant’s regular
possession of the child. Under the applicable standard of review, we must conclude the trial
court impliedly found there was no such agreement. See City of Keller, 168 S.W.3d at 819;
Golden Eagle Archery, 116 S.W.3d at 761; M.P.B., 257 S.W.3d at 808. Mother’s testimony
shows each period of appellant’s possession of the child was a temporary arrangement with no
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obligation on Mother to consent to that period of possession or any future possession. M.K.S.-V.
and Doncer do not support appellant’s position.
In In re M.P.B., the mother lived in Texas and was appointed primary joint managing
conservator of the infant child. In re M.P.B., 257 S.W.3d 804, 807 (Tex. App.—Dallas 2008, no
pet.). The father moved to California and had limited contact with the child thereafter. Id. The
mother moved in with her mother (the grandmother) for three months and then moved to an
apartment near the grandmother’s home. Id. The grandmother cared for the child at the
grandmother’s home every weekend of the child’s life, and the child spent more time overall at
the grandmother’s home than at the mother’s apartment. Id. at 809. When the mother was killed
when the child was twenty months old, the grandmother brought suit seeking conservatorship.
Id. at 807. The father asserted the grandmother lacked standing. The trial court concluded the
grandmother had standing and appointed her as the primary joint managing conservator with the
exclusive right to designate the child’s primary residence. Id. at 808. The trial court did not
enter findings of fact and conclusions of law. Id. On appeal, we had to draw every reasonable
inference supported by the record in favor of the trial court’s determination that the grandmother
had standing. Id. Applying that standard of review, we concluded the evidence showed the
grandmother’s home was the child’s principal residence for at least six months. Id. at 809. We
stated,
Although Grandmother’s actual care, control, and possession of [the child] was
not exclusive, with Mother’s consent, Grandmother provided [the child] with a
fixed place of abode, occupied consistently over a substantial period of time, that
was permanent rather than temporary. The record does not suggest this pattern of
possession and caregiving was intended to be a temporary arrangement to
facilitate momentary housing difficulties, inconvenient travel schedules, the
pursuit of higher education, or the inability to provide child care. Thus, we
conclude that under the specific facts of this case, the evidence is sufficient to
support the trial court’s threshold determination that Grandmother had standing to
file an original suit requesting managing conservatorship.
Id.
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In re M.P.B. is distinguishable from this case because the evidence in that case showed
the grandmother provided a permanent residence for the child. The evidence did not suggest the
child’s staying with the grandmother was intended to be temporary. Id. In this case, however,
Mother’s testimony shows the child’s residing with appellant was not intended to be a permanent
arrangement. We conclude M.P.B. does not support Mother’s argument.
Drawing every reasonable inference supported by the record in favor of the trial court’s
judgment, we conclude the record does not show that, for the six months of appellant’s
possession of the child ending within 90 days of suit being filed, the parties intended for the child
to occupy appellant’s home consistently over a substantial period of time and intended that
appellant’s home be a permanent rather than temporary abode for the child. Cf. M.K.S.-V., 301
S.W.3d at 465 (evidence showed parties intended for the child to occupy nonparent’s home over
a substantial period of time). Instead, Mother’s testimony shows the periods of the child’s
residing with appellant for the various weekends, holidays, and summer breaks were each
intended to be a temporary arrangement.
We conclude the trial court did not err by sustaining Mother’s plea to the jurisdiction and
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dismissing appellant’s suit for conservatorship. We overrule appellant’s sole issue. 3
CONCLUSION
We affirm the trial court’s judgment.
/Lana Myers/
LANA MYERS
JUSTICE
111109F.P05
3
Appellant also argues the trial court erred by requiring appellant to show that appointing Mother sole managing conservator or both parties
as joint managing conservators would significantly impair the child’s health or emotional development. Because we have concluded appellant
failed to establish standing under section 102.003, resolution of this argument is not necessary for disposition of the appeal. Accordingly, we do
not address it. See TEX. R. APP. P. 47.2.
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S
Court of Appeals
Fifth District of Texas at Dallas
JUDGMENT
IN THE INTEREST OF I.I.G.T., A CHILD On Appeal from the 254th Judicial District
Court, Dallas County, Texas
No. 05-11-01109-CV Trial Court Cause No. DF-09-12092-R.
Opinion delivered by Justice Myers.
Justices FitzGerald and Francis participating.
In accordance with this Court’s opinion of this date, the judgment of the trial court is
AFFIRMED.
It is ORDERED that appellee Sueyuan O. Talton recover her costs of this appeal from
appellant Roderick Alexander.
Judgment entered this 7th day of October, 2013.
/Lana Myers/
LANA MYERS
JUSTICE
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