in the Interest of D.A., a Child ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-14-00265-CV
IN THE INTEREST OF D.A., A
CHILD
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FROM THE 323RD DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 323-100117-14
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DISSENTING MEMORANDUM OPINION1
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I respectfully dissent from the majority opinion’s conclusion that the trial
court erred by dismissing Grandmother’s suit for lack of standing. In this case,
standing is conferred by statute; thus, we must analyze whether the petition was
filed by a proper party under the statutory framework. See In re J.C., 399 S.W.3d
235, 238 (Tex. App.—San Antonio 2012, no pet.). “The party seeking relief must
allege and establish standing within the parameters of the statutory language.”
Id. (emphases added).
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See Tex. R. App. P. 47.4.
Grandmother alleged in her petition, in a section entitled “Residence
Requirement,” that “[t]he child will have lived in the home of [Grandmother] for at
least six (6) months when this cause is heard.” As statutorily required, she
attached an affidavit to her petition in which she detailed where D.A. had lived
since 2006. See Tex. Fam. Code Ann. § 152.209(a) (West 2014). After the
Department filed its motion to dismiss Grandmother’s petition based on a lack of
standing, Grandmother did not respond and failed to appear for the hearing
although she had actual notice of the motion and the hearing. The Department
noted that Grandmother did not “state under what provision she is asserting
standing.” But the Department then argued that although Grandmother had not
alleged standing under section 102.005, she could not meet that statutory
standard. See id. § 102.005 (West 2014). In her motion for new trial,
Grandmother again did not allege section 102.005 other than to state in a
conclusory manner that she had “established a substantial past contact with
child.” She then specified, however, that she based her standing on the fact that
she had care, control, and possession of D.A. for at least six months, which had
ended less than ninety days before she filed her petition. See id. § 102.003(a)(9)
(West 2014).
I would hold that Grandmother failed to sufficiently allege and establish
standing. As the person asserting standing, Grandmother had the burden to
allege and prove the applicable statute conferring standing. See In re S.M.D.,
329 S.W.3d 8, 12–13 (Tex. App.—San Antonio 2010, pet. dism’d). This she did
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not do. I do not believe that Grandmother’s factually incorrect allegation in her
petition that D.A. had lived with her for six months (which she stated in support of
a “residence requirement”), her affidavit that was attached as required by a
section of the family code that has no application to standing, or her specific
reference to section 102.003(a)(9) in her motion for new trial were sufficient to
establish standing under either section 102.003(a)(9) or section 102.005. We
cannot apply a different standard to Grandmother merely because she is
proceeding pro se. See Mansfield State Bank v. Cohn, 573 S.W.2d 181, 184–85
(Tex. 1978); In re J.P., 365 S.W.3d 833, 837 (Tex. App.—Dallas 2012, no pet.);
Stein v. Lewisville Indep. Sch. Dist., 481 S.W.2d 436, 439 (Tex. Civ. App.—Fort
Worth 1972, writ ref’d n.r.e.), appeal dism’d & cert. denied, 414 U.S. 948 (1973).
An attorney’s wholesale failure to address standing until raised in a motion for
new trial after a jurisdictional dismissal, failure to specify which statute conferred
standing, or the citation of an inapplicable standing statute would certainly be
deemed insufficient to sustain the burden of pleading and proof on standing.
Accordingly, the trial court correctly concluded that Grandmother failed to allege
or establish standing and, therefore, correctly dismissed Grandmother’s petition.
See In re C.M.C., 192 S.W.3d 866, 870 (Tex. App.—Texarkana 2006, no pet.).
/s/ Lee Gabriel
LEE GABRIEL
JUSTICE
DELIVERED: February 5, 2015
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