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in the Interest of I.M.S., J.I.E., & A.L.S. AKA A.S. ( 2008 )


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  • Affirmed and Memorandum Opinion filed December 2, 2008

    Affirmed and Memorandum Opinion filed December 2, 2008.

     

                                                                                 

    In The

     

    Fourteenth Court of Appeals

    _______________

     

    NO. 14-07-00638-CV

    _______________

     

    IN THE INTEREST OF I.M.S., J.I.E., & A.L.S. AKA A.S.

     

    On Appeal from the 315th District Court

    Harris County, Texas

    Trial Court Cause No. 2007-14767

     

    M E M O R A N D U M   O P I N I O N

    Appellant, Maria Serrano, appeals from the trial court=s order dismissing her suit seeking possession of or access to her grandchildren.  Dismissal was predicated on the trial court=s finding that she did not have standing under Texas Family Code _ 102.006(a)(3) (Vernon Supp. 2008).  Serrano contends that (1) the statute applied by the trial court violated federal and state constitutional provisions; (2) she has standing to bring suit under an amended version of the statute; and (3) the amended statute should have been applied to this case.  We affirm.

    Background

    On January 22, 2007, the trial court held a hearing on two suits filed by the Texas Department of Family and Protective Services (Athe Department@) to terminate the parent-child relationship of both parents with respect to minors I.M.S. and J.I.E., and with respect to infant A.L.S.  The trial court signed an order terminating the parent-child relationship of both parents with respect to I.M.S. and J.I.E. on January 31, 2007.  The record contains no order regarding termination of the parent-child relationship with respect to infant A.L.S.; however, a transcript of the January 22, 2007 hearing clearly establishes that the trial court terminated the parent-child relationship of both parents with respect to A.L.S.

    The Department=s employee in charge of the children=s cases testified at the January 22, 2007 hearing that all three children were placed in the care of appellant _ their grandmother _ and her husband.  She further testified that all of the children=s needs were being met, and that this placement was in the children=s best interest.  The Department=s employee also testified that the plan for the children following termination of parental rights was for appellant and her husband to adopt the children, and that this also was in the best interest of the children.  Appellant=s testimony at this hearing confirmed that she intended to adopt the children.

    In early February 2007, the Department received a new status report on the children and removed them from appellant=s care.  On February 14, 2007, the trial court held a hearing on the removal of the children from appellant=s care, during which appellant admitted to the trial court that she had violated an earlier court order.  The record contains no documentation or transcript from the February 14, 2007 hearing.

    Appellant filed an original petition for possession or access as a grandparent on March 13, 2007.  At some point between February 14, 2007 and July 26, 2007, an adoptive family filed a petition for adoption of the children to which the Department consented.  The record contains no documentation from the adoption petition, nor does the date this petition was filed appear in the record or in the parties= briefing.

    The trial court held a hearing on appellant=s petition for possession or access on July 26, 2007.  The Department asserted that it did not wish appellant to have possession or access due to the circumstances surrounding the February removal of the children from her care, and made an oral motion that appellant=s petition be dismissed.  The adoptive family joined in this oral motion and asserted that appellant had no standing under Texas Family Code _ 102.006(a)(3).  Appellant agreed with the adoptive family=s argument and conceded that section 102.006(a)(3) Ais almost fatal to me;@ she also asserted that the statute may violate the AOpen Courts@ provision of the Texas Constitution and the equal protection guarantees of the United States Constitution and the Texas Constitution.

    The trial court referred to appellant=s admission at the February 14, 2007 hearing that she had violated a court order; according to the trial court, this violation Aput the children in jeopardy.@  The trial court found that appellant did not have standing to file suit because of section 102.006; denied appellant access or possession; and struck her pleadings.  In its written order signed on July 26, 2007, the trial court found that Apursuant to 102.006 of the Texas Family Code, [appellant] does not have standing to file an Original Suit for Access,@ and that such access would not be in the children=s best interest.  Appellant appeals from this order.

    Analysis

    The standard of review for an order of dismissal for lack of standing is the same as that for an order of dismissal for lack of subject matter jurisdiction, which is de novo.  See Tex. Ass=n of Bus. v. Tex. Air Control Bd., 852 S.W.2d 440, 446 (Tex. 1993).   We take the factual allegations in the petition as true and construe them in favor of the pleader.  Id.

    In her petition, appellant relied on sections 102.003(a)(11) and 102.004(a)(1) of the Texas Family Code as her basis for standing;[1] the Department asserted at trial that section 102.006(a)(3) governed standing and barred appellant=s claim.  The trial court based its ruling on section 102.006(a)(3), which stated as follows at the time appellant=s suit was filed:

    (a) Except as provided by Subsection (b), if the parent-child relationship between the child and every living parent of the child has been terminated, an original suit may not be filed by:

     

    (3) a family member or relative by blood, adoption, or marriage of either a former parent whose parent-child relationship has been terminated or of the father of the child.

     

    Tex. Fam. Code Ann. _ 102.006(a)(3) (Vernon 2002). 

    Appellant concedes that she lacks standing to bring suit for access to or possession of her grandchildren under section 102.006(a)(3) because she is a relative by blood of a former parent whose parent-child relationship has been terminated.  Appellant argues on appeal that section 102.006 violates state and federal constitutional provisions as applied to her case, and that, in the alternative, section 102.006(c) _ added to the statute after her suit was filed but before the July 26, 2007 hearing _ confers standing upon her to file suit for access or possession and should have been applied by the trial court. Section 102.006(c) states that A[t]he limitations on filing suit imposed by this section do not apply to an adult sibling of the child, a grandparent of the child . . . if the adult sibling, grandparent, aunt, or uncle files an original suit or a suit for modification requesting managing conservatorship of the child . . . .@  Id. _ 102.006(c) (Vernon Supp. 2008).  

    The Department contends appellant=s constitutional arguments are meritless; that section 102.006(c) applies only to suits requesting managing conservatorship; and, in the alternative, appellant=s suit also is barred by Texas Family Code _ 153.434 (Vernon Supp. 2008).

    I.          Appellant=s Constitutional Claims

    Conceding that section 102.006(a)(3) bars her from filing suit for possession of or access to her grandchildren, appellant asserts that this provision violates the AOpen Courts@ provision of the Texas Constitution and the equal protection clauses of the United States Constitution and the Texas Constitution.  Appellant also asserts on appeal that section 102.006(a)(3) violates guarantees of trial by jury and due process of law under the United States Constitution and the Texas Constitution.

    We first address preservation.  To preserve a complaint for appellate review, the complaining party must present the complaint to the trial court by timely request, objection, or motion.  Tex. R. App. P. 33.1(a)(1).  This requirement applies to constitutional claims, including those raised in family law cases.  See Tex. Dep=t of Protective & Regulatory Servs. v. Sherry, 46 S.W.3d 857, 861 (Tex. 2001).  Additionally, an appellant=s brief must contain a clear and concise argument for her contention made, including appropriate citations to authorities and to the record; otherwise, the contention is waived.  See Tex. R. App. P. 38.1(h); Halim v. Ramchandani, 203 S.W.3d 482, 487 n.7 (Tex. App.BHouston [14th Dist.] 2006, no pet.).

    Appellant failed to raise her arguments that section 102.006(a)(3) violated her constitutional rights to trial by jury and due process of law before the trial court; these arguments therefore are waived and leave us with nothing to review on appeal.  See Tex. R. App. P. 33.1(a)(1); Sherry, 46 S.W.3d at 861.  Appellant cites Amendment XIV of the United States Constitution in her brief, but on appeal argues only that the trial court violated her right to due process under this provision.  Appellant cites Article I, Section 3a of the Texas Constitution once in her brief and does not argue that the trial court violated her equal protection rights under this provision.  Because appellant on appeal failed to argue violations of her equal protection rights under these constitutional provisions, these arguments are waived and she leaves us with nothing to review on these points.  See Tex. R. App. P. 38.1(h); Halim, 203 S.W.3d at 487 n.7.[2]

    Appellant argued to the trial court and contends on appeal that section 102.006(a)(3) violates the Texas Constitution=s AOpen Courts@ provision.  This is the only constitutional argument preserved for our review.  The AOpen Courts@ provision of the Texas Constitution applies only to statutory restrictions on cognizable common law causes of action.  See Tex. Const. art. I, _ 13; Peeler v. Hughes & Luce, 909 S.W.2d 494, 499 (Tex. 1995).

    Appellant cites no case law establishing that grandparents have a common law right to possession of or access to their grandchildren.  Texas case law confirms that no such right existed at common law; the right, if any, is statutory.  See In the Interest of K. L. M., 609 S.W.2d 314, 315 (Tex. Civ. App.BEastland 1980, no writ) (no independent cause of action for the right of access by grandparents exists outside of any statutory relief afforded); In the Interest of L. L. K., 591 S.W.2d 626, 627 (Tex. Civ. App.BAmarillo 1979, no writ) (grandparents had no legal right of access to their grandchildren before the state legislature created one by statute in 1974); see also Barrientos v. Garza, 559 S.W.2d 399, 400-01 (Tex. Civ. App.BDallas 1977, no writ) (general common law rule in Texas and elsewhere before statutory change had been that grandparents had no legal right of visitation with minor grandchildren). 

    Appellant argues that grandparents have a fundamental right to possession or access because the United States Supreme Court has not expressly rejected such a right.  See generally Troxel v. Granville, 530 U.S. 57 (2000).  Appellant=s reliance upon Troxel is misplaced. 

    Troxel involved a challenge under the Due Process Clause of the United States Constitution to a Washington state statute entitling any person to petition the court for visitation at any time.  Id. at 60, 65.  The Court held that the Washington statute under which the children=s paternal grandparents petitioned for visitation rights to their grandchildren born out of wedlock _ an action which was opposed by the children=s mother _ violated the fundamental liberty interest of parents in the care, custody, and control of their children.  Id. at 60-61, 65-67. 


    The statute at issue in Troxel permitted Aany person@ to petition a trial court for visitation rights Aat any time,@ and authorized the trial court to grant such visitation rights whenever it found Avisitation may serve the best interest of the child.@  Id. at 60.  The case centered on two girls whose parents never married, but whose father lived with his parents and regularly brought the girls to his parents= home for weekend visitation.  Id. After the girls= father committed suicide, the paternal grandparents continued to see their granddaughters on a regular basis for a few months; the girl=s mother then informed the paternal grandparents that she wished to limit their visitation to one short visit per month.  Id. at 60-61.  The paternal grandparents sued, seeking more visitation rights than the mother wished to allow.  Id. at 61-62.  The trial court found that more visitation with the grandparents was in the girls= best interest and ruled in favor of the grandparents.  Id.

    The Washington Supreme Court held that the visitation statute violated the United States Constitution by infringing on the fundamental right of parents to rear their children.  Id. at 63.  The United States Supreme Court affirmed the Washington Supreme Court=s judgment.  Id.  The Court determined that the statute=s broad language effectively allowed any third party seeking visitation to subject any visitation decision by a parent to review by a trial court, and that once the matter came before a trial court a parent=s decision that visitation was not in the child=s best interest was accorded no deference.  Id. at 67. 

    The practical effect of the statute, according to the United States Supreme Court, was that a trial court could disregard and overturn any decision by a fit custodial parent concerning visitation based solely on the trial court=s determination of the child=s best interest.  Id.  Such usurpation of a parent=s fundamental right to rear his or her children exceeded the bounds of the Due Process Clause.  Id. at 68.  In its analysis, the Supreme Court summarized nearly eight decades of its own case law establishing this fundamental liberty interest of parents.  Id. at 65-66.  The Court did not indicate that this same interest should be recognized for persons other than parents.  Id. 


    The facts, statutory and constitutional provisions, and analysis at issue in Troxel differ from the circumstances here.  Troxel involved a suit brought by grandparents seeking expanded visitation rights against a parent who had not been deemed unfit by the state and who opposed more visitation for the grandparents.  See id. at 60-62.  The present case involves a suit that was brought _ after both parents= rights had been terminated by the trial court _ by a grandparent who was found by the trial court to have violated a court order and jeopardized the safety of her grandchildren against a state agency which opposes any visitation rights for the grandmother.  In Troxel, the children still lived with their natural mother and also had been adopted by their mother=s husband by the time the trial court=s decision was appealed.  See id. In this case, the children had lived with appellant with state approval until appellant violated a court order and endangered the children, at which point the children were removed from her care.  Further, the children at issue in this case were to be adopted by another family with state approval shortly after the July 26, 2007 hearing.

    The statute at issue in Troxel explicitly conferred standing to file suit for visitation rights, while the statute in this case limits standing to file suits affecting the parent-child relationship and makes no explicit mention of rights to possession or access.  See id. at 60.  The constitutional provision at issue in Troxel was the Due Process Clause of the United States Constitution, not the AOpen Courts@ provision of the Texas Constitution.  See id. at 63. Our analysis of the AOpen Courts@ provision depends upon whether grandparents have a common law right to possession of or access to their grandchildren; the analysis in Troxel contemplated whether the statute at issue violated a fundamental right protected under the United States Constitution.  See id. at 63, 65-66. In light of the differences between Troxel and this case, Troxel offers no support to appellant=s argument. 

    We overrule appellant=s issue regarding the constitutionality of Texas Family Code _ 102.006(a)(3) under the AOpen Courts@ provision.

    II.        Appellant=s Standing Under Texas Family Code Section 102.006(c)

    Appellant contends on appeal that section 102.006(c) _ added to the statute after her suit was filed but before the July 26, 2007 hearing _ confers standing upon her to file suit for access or possession and should have been applied by the trial court.  While it is not apparent from the record that this assertion was explicitly made in the trial court, we read the record on appeal and the trial court=s discussion of section 102.006 generously so that it includes this argument, and we therefore reach this issue.  See Tex. R. App. P. 38.9.

    Statutory construction is a legal question that we review de novo, ascertaining and giving effect to the legislature=s intent as expressed by the plain and common meaning of the statute=s words.  F.F.P. Operating Partners, L.P. v. Duenez, 237 S.W.3d 680, 683 (Tex. 2007).  In construing a statute, our primary objective is to determine the legislature=s intent, which, when possible, we discern from the plain meaning of the words chosen.  State v. Shumake, 199 S.W.3d 279, 284 (Tex. 2006). 

    We presume that every word of a statute was used for a purpose, and, likewise, that every omitted word was excluded for a purpose.  Cameron v. Terrell & Garrett, Inc., 618 S.W.2d 535, 540 (Tex. 1981).  We must consider the statute as a whole rather than its isolated provisions.  Helena Chem. Co. v. Wilkins, 47 S.W.3d 486, 493 (Tex. 2001).

    As noted earlier, section 102.006(c) reads as follows: AThe limitations on filing suit imposed by this section do not apply to an adult sibling of the child, a grandparent of the child . . . if the adult sibling, grandparent, aunt, or uncle files an original suit or a suit for modification requesting managing conservatorship of the child . . . .@  Tex. Fam. Code Ann. _ 102.006(c) (emphasis added).  This subsection was added by legislation effective on June 15, 2007, which was after appellant filed her suit but before the July 26, 2007 hearing on her suit.  See id.

    Appellant=s assertion that section 102.006(c) afforded her standing in her suit for possession and access relies on a misreading of this subsection.  The plain language of the statute states that it applies to suits Arequesting managing conservatorship.@  See id.  The inclusion of this specific language establishes that only suits requesting managing conservatorship are governed by this subsection.  See Cameron, 618 S.W.2d at 540 (every word included in or excluded from a statute is included or excluded for a purpose). 


    Appellant did not seek relief in the form of a request for managing conservatorship.  Instead, her suit seeks possession of or access to her grandchildren.  Because it is evident from the plain meaning of the statute=s language that section 102.006(c) was intended by the legislature to apply only to suits requesting managing conservatorship, appellant may not rely on it to confer standing upon her in this case.

    We overrule appellant=s issue regarding the applicability of Texas Family Code _ 102.006(c) to a suit for possession or access.

    III.       Should Trial Court Have Applied Section 102.006(c)?

    Appellant contends on appeal that section 102.006(c) should have been applied by the trial court because it was added to the statute before the July 26, 2007 hearing on her petition for possession or access.  Having concluded that section 102.006(c) would not have established standing even if it applied, we need not address this issue.

    We overrule appellant=s issue regarding whether the trial court should have applied section 102.006(c).

    The trial court=s order is affirmed.

     

    /s/        William J. Boyce

    Justice

     

     

    Judgment rendered and Memorandum Opinion filed December 2, 2008.

    Panel consists of Justices Yates, Seymore, and Boyce.


    1           It should be noted that neither section of the Texas Family Code applies in this case.  Section 102.003(a)(11) applies when a parent is deceased, not when her rights have been judicially terminated.  See Tex. Fam. Code Ann. _ 102.003(a)(11) (Vernon Supp. 2008).  Section 102.004(a)(1) applies to a suit requesting managing conservatorship.  See id. _ 102.004(a)(1) (Vernon Supp. 2008).  On appeal, appellant no longer relies on these sections as a basis for standing.

    2           In addition, appellant fails to explain how Article I, Section 3a of the Texas Constitution would apply to this case when there is no indication in the record nor any argument by appellant that the trial court denied her equal rights based on her Asex, race, color, creed, or national origin.@  Tex. Const. art. I, _ 3a.